occupational health and safety

Home office set up, or setting up the office at home?

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Fair Work Commission confirms desk not required to be provided to employee working from home

It has been a turbulent year for most workplaces, including managing the sudden shift to working from home arrangements. Against this backdrop, the Fair Work Commission has provided interesting commentary in the recent unfair dismissal case of Jayson McKean v Red Energy Pty Ltd [2020] FWC 5688, which involved a dispute about whether the employer was required to supply a desk for an employee working from home.

Background

Jayson McKean (‘McKean’) was employed at Red Energy Pty Ltd (‘Red Energy’) as a Customer Assist Specialist. At the beginning of the COVID-19 pandemic, Red Energy, like many employers, encouraged employees to work from home. McKean resisted the shift to working from home, for reasons said to relate to financial stress and a recent move of house, unless Red Energy provided him with a desk or reimbursed the cost of purchasing one.

Although Red Energy provided a laptop, headset, adjustable chair, ergonomic assessments, access to an occupational therapist and online resources to its staff, it would not agree to provide a desk.

Initially, McKean continued to work from the office, but following the reintroduction of Stage 3 restrictions in July, Red Energy informed McKean that he would need to arrange to work from home. McKean’s union engaged in unsuccessful discussions with Red Energy to find a solution, but when these failed, McKean requested 6 weeks leave. After his request for leave was rejected, McKean felt that he had no choice but to resign.

The case

McKean brought an unfair dismissal case to Fair Work Commission, seeking reinstatement and payment of lost wages. He argued that Red Energy’s conduct, in refusing to buy him a desk, grant the application for leave, or allow him to continue working from the office, amounted to constructive dismissal because it left him with no reasonable choice but to resign his employment.

McKean further argued that Red Energy had breached the Occupational Health and Safety Act 2004 (Vic) by failing to take reasonably practicable measures to maintain a safe working environment for its employees. 

For an unfair dismissal claim to be heard by the Fair Work Commission, the employment must have been terminated “on the employer’s initiative”. Red Energy argued that it had not and lodged a jurisdictional objection to McKean’s unfair dismissal claim, arguing that McKean had not been forced to resign and therefore that he had no standing to make a claim.

Findings

The Commission rejected McKean’s arguments as being “entirely without merit”. The Commission found that McKean could have reasonably bought a desk, noting that McKean himself had acknowledged that he had the means to do so, and it was only on principle that he refused.  The Commission found that “on any reasonable view, the prospect of having to pay a small sum to buy a desk was not a matter that forced McKean to resign”. This finding alone was enough to dismiss the case.

The decision of the employer to refuse leave was also found to be reasonable, given it was a request for an extensive period with very short notice. McKean’s decision to resign was therefore one that was made freely by him and not because he was left with no other alternative. 

Deputy President Colman also found that the facts did not establish that there was an OHS risk, let alone a contravention of the OHS Act. The resources provided by Red Energy were found to be adequate, having regard to the nature of McKean’s work. There was no basis to argue that it was not reasonably practicable for McKean to work from home.

Deputy President Colman made additional commentary on the repeated refusal by McKean to work from home, stating that the direction to work from home was plainly lawful and reasonable in the circumstances, and Red Energy would have been entitled to dismiss McKean for his failure to follow a lawful and reasonable direction. Although in this case Red Energy had not dismissed the applicant, DP Colman stated that he would not have considered the dismissal harsh, unjust or unreasonable if it had.

Lessons to employers

This case is useful to employers in understanding what would be required to establish a constructive dismissal. The employer’s conduct in this matter had in no way forced a resignation, and the unfair dismissal claim therefore failed on jurisdictional grounds.  

This decision also provides valuable insight into what equipment might need to be provided by an employer to provide “adequate resources” to meet OHS obligations. Whilst in this case, a desk was not required for the employee’s particular role, an employer should consider the particular requirements of an employee’s role when deciding what is necessary to enable working from home.

Please contact our Employment Team if you would like to discuss your particular workplaces circumstances and what adequate resources might be required to accommodate working from home arrangements.

with Emily Clapp, Graduate at Law

Case Note: Court of Appeal again finds against worker

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In Schembri v State of Victoria, the Court of Appeal rejected the appellant’s claim that the jury’s verdict for the defendant both in relation to his claim for negligence and breach of statutory duty was against the evidence and the weight of the evidence.

Appeals against a jury’s verdict are notoriously difficult. In order to succeed, an appellant has to show that the verdict “is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach”. (See Calin v. Greater Union Organisation Pty Ltd [1991] HCA 23.)

Mr Schembri was an experienced youth justice worker at the Malmsbury Youth Justice Centre.

On 21 May 2013, there was a ‘Code Black’ emergency initiated by the conduct of one of the inmates. As a result, inmates were directed to return to their rooms. All of them seemed to have done so, save for the inmate causing the disruption and another inmate referred to as TVD. The officer in charge at the time, Ms Thomas, directed Mr Schembri to escort TVD back to his room while accompanied by another youth justice worker. Mr Schembri wanted to sit down and talk to TVD and establish a rapport with him, as he thought that this would be preferable to effectively forcing him to return to his room. His request to do so was denied by Ms Thomas who directed him and a fellow employee to immediately escort TVD back to his room.

In accordance with these directions, Mr Schembri and a fellow employee were taking TVD back to his room when he lashed out and kicked Mr Schembri in his knee, allegedly causing him to sustain a damaged anterior cruciate ligament. The respondent claimed that other incidents may have been implicated in the knee injury, although the medical evidence suggested otherwise.

TVD had a history of bad behaviour and Mr Schembri had dealt with him on numerous occasions in the past. Various incident reports, handover notes, daily service advices and client service plans and recommendations had not been brought to the attention of either Ms Thomas or Mr Schembri. The appellant relied upon these failures in both the negligence and breach of statutory duty claims.

The respondent answered these allegations by noting that TVD’s behavioural issues were well known by all staff regardless of any information in reports, advices and plans. Secondly, even if all of that information had been made available prior to the incident, in the difficult circumstances that prevailed Ms Thomas would not have done anything differently.

The Court of Appeal concluded that the jury were entitled to conclude that any procedural failure on the employer’s behalf didn’t have any causal consequences and that Ms Thomas’ directions to the applicant were reasonable in all the circumstances. Accordingly, the applicant was unable to show that on the most favourable evidence available for the respondent, the jury could not have reasonably reached its verdict. Similarly, when taking the view of the evidence most favourable to the respondent, it remained open to a jury to conclude that the risk of escorting TVD could never have been eliminated by reasonably practicable means and what occurred on the day of the incident was a reasonably practical method of reducing the risk of a musculo-skeletal disorder. As such, the claim based upon a breach of the Occupational Health and Safety Regulations also failed.

As a consequence of the court’s findings, leave to appeal was refused.

Comments

At trial, the jury clearly took a pragmatic approach to the problem and came to a conclusion which was difficult to attack on appeal particularly given the high standard required to overturn a jury decision. A cynic might suggest that the common sense exhibited by the jury in this case is a good argument for the retention of jury trials.

New Laws for Workplace Manslaughter in Victoria – Be Prepared

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An offence of “workplace manslaughter” is set to be introduced into the Occupational Health and Safety Act 2004 (Vic) (“OHS Act”) in Victoria.

The proposed legislation was introduced on 29 October 2019 and is currently before the Parliament.

In 2002 the then Bracks Government unsuccessfully tried to introduce similar legislation. The primary difference in the 2019 Bill is that it does not include offences for negligently causing serious injury.  It is confined to workplace deaths.

Commencement of the legislation

The proposed legislation is scheduled to commence from 1 July 2020.

However, negligent conduct that organisations engaged in prior to 1 July 2020 is still relevant where the organisation has an opportunity to correct the conduct after commencement of the legislation.

Objects of the legislation

The objects behind the creation of the new offence are:

(a)  to prevent workplace deaths;

(b)  to deter organisations and relevant individuals who owe duties from breaching those duties; and

(c)  to reflect the severity of conduct that places life at risk in the workplace.

Whose conduct does the offence cover?

The offence covers those who owe applicable duties under the existing provisions of Part 3 of the OHS Act. However, controversially for some, it excludes duties owed by employees who are not also officers of the organisation.

The definition of “officer” from the Corporations Act 2001 (Cth) is retained.

This covers the conduct of:

(a)  directors; and

(b)  people who participate in making decisions that:

(1)  affect a substantial part of the business; or

(2)  have the capacity to significantly affect the organisation’s financial standing.

This achieves the Government’s stated aim of targeting individuals at the highest level of the organisation with the power and resources to improve safety, by holding them and the organisation to account.  The Government considers that employees who are not officers do not have a sufficient level of power or resources to improve safety standards.

What victims will be covered by the proposed offence?

The offence will apply to the death of anyone who is owed a relevant duty under the OHS Act.  This can include members of the public, as well as employees and contractors.

The offence does not extend to serious injuries in the workplace, unlike the earlier 2002 incarnation of the legislation.

How can the offence be proven?

Relevant conduct for the offence includes both acts and omissions.

The offence is made out if an organisation or an officer of the organisation engages in conduct that:

(a)  is negligent;

(b)  breaches an applicable duty (owed by the organisation or officer to another person); and

(c)  causes the death of that person.

The conduct is negligent if it involves:

(a)  a great falling short of the standard of care that would have been taken by a reasonable person; and

(b)  a high risk of death, serious injury or serious illness.

This test involves the adoption of the common law standard of criminal negligence in Victoria.

Significantly, an organisation can be found indirectly guilty of workplace manslaughter because the accumulated conduct of different officers may be considered collectively sufficient to establish the requisite degree of negligence.

In addition, the explanatory memorandum to the Bill suggests that direct liability might be established against an organisation where it’s unwritten rules, policies, workplace practices or conduct implicitly authorised non-compliance or failed to create a culture of compliance.

Penalties

The major sting in the tail to the new offence is in the penalties to be introduced.

The maximum penalty for an organisation is $16.5 million.  For individuals, the maximum penalty is $1.65 million (representing a fourfold increase from the existing maximum penalty under the Sentencing Act 1991 (Vic) of $396,000) or 20 years imprisonment.

Taking steps to prepare for the legislation

Preparation for this legislation is important.  This includes reviewing the hazards in your workplace and controls currently in place, as well as your existing policies and “unwritten practices” relating to health and safety issues.

For further information or assistance, please contact David Thompson or Richard Scougall on 8602 9252.