by David Kidd | Sep 25, 2019 | Annotated Fair Work Act
Employers need to watch their drug and alcohol policies are not too wide. In the case of Oliver [2019] SAET 195 the policy was so expansive ‘that an employee who had drunk a glass of wine or beer after work or taken Panadol could be caught by it’. It also allowed the employer to conduct screening just on the suspicion screening was warranted. Further, the employer tried to have the worker undergo screening at a time he was not expected to be working. The policy did not specify the methods of drug testing proposed, nor whether an initial screening will be accepted as finally conclusive or if formal confirmatory lab testing would be ordered in the case of a non-negative result. Although the R’s work environment was a hazardous one, it permitted the employer to test in circumstances that exceeded the maintenance of a safe work environment. The worker responded angrily to the attempt to drug test him after he was accused of being a drug addict. His dismissal for serious misconduct was not...
by David Kidd | Sep 16, 2019 | Motor and Traffic Law, Traffic Law - Liability & Apportionments
In Fleming v Shoobridge 8/7/09 [2009] ACTSC 80 [(2009) 53 MVR 138] Master Harper considered liability in the case of a P who had his hand though the driver’s window of a car owned by D on the interior door handle. P was to remove his hand before his girlfriend Tracey drove off, but unexpectedly was unable to as it got caught. Tracey, unaware of this, did drive off and P was injured as he was dragged along a few metres. Tracey was found to be negligent as she should have delayed her departure until she was sure P was clear of the vehicle, just as was found in the earlier case of Ratclifffe v Jackson (1993) 18 MVR 297 where a passenger had alighted from a car, but had her clothing caught in a door. The P, Mr Fleming, not considered negligent at all. See Grigoriadis v Sidiropoulos 13/9/19 [2019] NSWDC 486 where Levy SC DCJ found D wholly negligent when he drove off not realizing P’s long coat was caught in his rear passenger door. “At best, the plaintiff’s actions amounted to no more than a casual moment of inattention, in poor light conditions … She had safely alighted from the vehicle …The fact that her coat was caught in the door does not of itself give rise to a finding of contributory negligence against her” @276. P “was, initially unaware that her coat was caught in the closed door. If she had been given the chance to step away, she might have come to that realisation earlier than she did. … Unfortunately, the first defendant did...
by David Kidd | Sep 9, 2019 | WHS Law
WHS Act s19(1) – Amusement devices [2019] QDC 150 Reynolds v Tailored Adventures P/L (s21 health and safety duty breached – this was an appeal on penalty where a user of a zip line suffered serious injuries – “The ZipSTOP manual could not have been clearer. Strict compliance with the manual would have prevented the injuries being caused” @92 – “actions of the respondent prior to the incident established that efforts were made to ensure that the ride was safe. It cannot be said that they were recklessly indifferent to the safety of persons on the particular zip line” @93 – “the need for general deterrence should have been reflected in a greater penalty” @110 – fine of $50,000 appropriate) WHS Act s19(1) – Body parts injured by machines [2019] NSWDC 302 SafeWork NSW v Millwell Cush P/L (“To obtain better access to clean the feed rollers, McGuffog lifted the major roll cover and observed a large chunk of mouldy wheat on the break roller. Whilst attempting to move this lump with his left hand, the break rollers caught the fingers on his left hand and pulled it into the break rollers of the roller mill. McGuffog attempted to use his right hand to try and pull his left hand out of the roller mill. The fingers of his right hand were also caught between the rollers. As a consequence of the incident, McGuffog had four fingers of his left hand surgically removed, as well as the tip of his left thumb. The fingers on his right hand were severely crushed, resulting in a degloving of the skin and...
by David Kidd | Aug 20, 2019 | Annotated Fair Work Act
Associated entities See also Small business employer & Subsidiary companies (issues concerning) for further case summaries [2010] FWA 5374 Qld Adams v Condamine Catchment … Corp. Ltd (A contended that R had associated entities – namely the Landcare Group, such that it was not a small business employer – s50AAA(3) & (6) of the Corporations Act considered – no control or shareholdings – the Landcare Group not associated) [2010] FWA 9329 NSW Ho v Horizon Iris P/L (the A’s employment as a duty manager at the Forbes hotel was terminated after eight months – A “maintained that the real employer was Iris Group Management Pty Ltd, a company which owns and operates a number of other hotels [and that R was therefore not a ‘small employer]. He submitted that the Corporations Act 2001’s definition of ‘associated entities’ was satisfied in that Iris Group Management Pty Ltd (the Principal) controls the associated entity and/or a third entity controls both the Principal and the associate … [R] claimed that Iris Group Management Pty Ltd is a ‘banner’ consultancy company which strengthens the buying power for the Group. It does not own or operate anything” @5-6 – “the entity known as Iris Group Management Pty Ltd is a payroll / administration company which pays all of the employees at the Forbes Hotel from monies which are remitted to it from the operators of the Forbes Hotel, being the shareholders of the company known as Horizon Iris Pty Ltd. As its very name suggests, it is a management company of a Group … I do not accept the characterisation of such a payroll/administration...
by David Kidd | Apr 24, 2019 | Fair Work Law & Annotated Act
[2019] FWC 2182 (whilst on duty as a flight attendant, “[c]onsuming on her own admission one quarter of a litre bottle of vodka provided the respondent with a valid reason for her dismissal” @77 – “having regard to the continuing and repeated dishonest approach to the investigation by the applicant, which in no manner can be regarded as a spur of the moment reaction … the applicant’s untruthfulness also provided a valid reason for her dismissal. It was an ongoing course of deception that led the respondent into inquiries over a lengthy period that it need not have embarked upon” @80 – Commission did “not accept that consuming alcohol while occupying a safety sensitive position in breach of the respondent’s policies and the Civil Aviation Regulations is misconduct where a warning ought to first be provided” @88 – A had a long and exemplary record with Qantas – “There may have been a different outcome had Mrs Warr been upfront and honest when it was first alleged she had consumed alcohol from company stores while on duty” @94 – dismissal not harsh etc) Dismissal – Sexual/Pornographic issues [2019] FWC 606 (the A, a male, was lawfully dismissed for sending text messages to a male co-worker of a sexual nature and making declarations of love where no mutual loving relationship existed – a reference to molestation was also inappropriate – it was reasonable for R to conclude the text messages were not welcome – A considered his behaviour a private matter and showed no remorse) Enterprise agreement – Intellectual freedom [2019] FCCA 997 (the A, who was the head of...
