Employment law update: Special Edition:

‘Disproportionate’ to sack HR manager for creating unsafe environment says FWC

The Fair Work Commission (FWC) has ruled it was ‘disproportionate’ to summarily dismiss a HR Manager accused of creating a ‘serious risk to the health and safety of others’ regardless of the fact that she behaved unreasonably towards her team and left them feeling like they were ‘walking on eggshells’.

It comes after the Baker Heart and Diabetes Institute dismissed the employee for breaching its bullying and harassment policy as it is alleged the employee refused to give a high-ranking member of her team her own office, instead making her sit in the open plan area with her back to the rest of the HR team, and by “publicly criticis[ing]” her to the rest of the team saying she “stuffed up” a budget report. Further, that she directed her second-in-command to dismiss a member of her team without reasonable cause after they gave negative feedback about her.

In response to the employer’s claim that the employee created an unsafe workplace environment, the FWC said that none of the witnesses gave the impression that they were ‘bursting with enthusiasm’ about their work and that although the atmosphere in the workplace was ‘on occasion, uncomfortable and awkward’, he did not consider it ‘a dangerous one’.

Accordingly, the Deputy President ruled the employee was unfairly dismissed and that her performance warranted a ‘review, a caution, some performance management and some coaching’. Given reinstatement was “not appropriate”, an order for payment of compensation is to be assessed at a later date.

Heidi Black v Baker Heart and Diabetes Institute [2024] FWC 3291 (28 November 2024)

 

Given the cold shoulder: FWC says unfair to dismiss cold storage worker for inability to endure sub-zero temperatures

This recent FWC decision takes the meaning of being given the “cold shoulder” to a whole new level. It comes after Lineage Aust Trs Pty Ltd dismissed a cold storage worker from its cold storage facility after the employee’s surgery for stomach cancer left him ‘very susceptible’ to working in cold environments.

The FWC heard that the Employer placed the employee on a suitable duties plan when he returned to work, which included limiting physical tasks, reducing his working hours, providing a 15-minute rest break after every two hours of work, and placing him in the comparatively warmer “chiller” areas.

However, things started to heat up when a new general manager asked the employee to obtain updated medical evidence from his treating practitioner. His physician reported the surgery left him unable to gain weight and his low body fact percentage made it especially difficult for him to endure the icy temperatures, limiting his exposure to cold environments to no longer than 15 minutes at a time. The Employer subsequently dismissed the employee on the basis that he could not perform the inherent duties of his role, and it could not accommodate the restrictions his physician outlined.

FWC Deputy President Nicholas Lake said that while the Employer ‘had good reason to be cautious’, the physician’s letters ‘did not provide a valid reason for dismissal on the grounds of incapacity’. Further, that ‘when assessing an employee’s capacity after a period of protracted illness, the employer should send the employee to an IME [independent medical examination]’ and allow the employee the opportunity to respond to the question of incapacity.

Mr Pero Grujicic v Lineage Aust Trs Pty Ltd [2024] FWC 3526 (I8 December 2024)

 

Cocaine user reinstated due to “ambiguous” alcohol and drug policy

The FWC has reinstated an employee who was sacked for returning high readings for cocaine use on a random drug test during a shift after finding that the employer’s alcohol and drug policy (AOD) was ambiguous in that it ‘did not explain that it tests for inactive metabolites as well as ‘drugs’ and that detection of these will result in a positive test even after the parent drug has left the employee’s system and the person is not regarded as being intoxicated’.

The employee, who had started “self-medicating” with cocaine during a recovery from an on-the-job shoulder injury, admitted to using the drug over the course of three days off work before taking a 24-hour break ahead of his next shift.

FWC Deputy President Judith Wright heard expert evidence that cocaine disappears from the body within three hours, but that the metabolites which produced the positive reading ‘stay around for a lot longer’. Further, that the employee would not have been intoxicated, however there may have been some form of withdrawal impairment in the days following his heavy cocaine use.

Despite this, the FWC held that whilst the employer had a ‘zero tolerance’ approach, ‘a breach of a drug and alcohol policy does not automatically result in dismissal’. Further, the fact that the employee “only” had two previous warnings and had never before breached the AOD were matters supporting its view ‘that the dismissal was harsh’.

The Deputy President also said she had “difficulty” believing the employer had lost trust and confidence in the employee because of “a single breach of the AOD”. Consequently, she ordered reinstatement and continuity of service despite the employee’s sometimes “inaccurate” evidence before the FWC.

Lee Witherden v DP World Sydney Limited [2025] FWC 294 (3 February 2025)

 

 

 

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