managing employment law issues - aog · • attended medical next day where alcohol was detected in...
TRANSCRIPT
Managing Employment Law Issues
In Offshore Contracting Relationships
PresenterNicholas Ellery
Partner, Corrs Chambers Westgarth
6283672/9March 2015
AGENDA
March 2015
What to do when a client insists you terminate an employee
Fitness for work and misconduct issues
Bullying and mental health issues
Complying with contractual and legal obligations
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SECTION 1:WHAT TO DO WHEN A CLIENT INSISTS YOU TERMINATE AN EMPLOYEE
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YOUR RELATIONSHIPS
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TERMINATING EMPLOYEES
• Client demands, wants and needs
• Demands of the particular project
• Employee availability
• Other deployment possibilities
Practical Issues
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TERMINATING EMPLOYEES
• Unfair dismissal claims
• Adverse action claims
• Issues with redundancy and severance payments
• Procedural fairness issues
Legal Risks
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SECTION 2:MANAGING MISCONDUCT AND FITNESS FOR WORK
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MISCONDUCT AND FITNESS FOR WORK
March 2015
• Drug and alcohol abuse• Obesity
• Disciplining staff
• Dishonesty
• Pre-existing medical issues
• Health and safety
• Client expectations
Practical Issues
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MISCONDUCT AND FITNESS FOR WORK
March 2015
• Unfair dismissal allegation
• Discrimination complaint
• Issues with procedural fairness
• Workers’ compensation
• Breaching contractual obligations to client
• Health and safety laws
Legal Risks
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DRUG USE
Toms v Harbour City Ferries Pty Ltd [2014] FWC 2327
Ferry collided with Wharf. Master’s blood test proved
positive for marijuana. Company had zero
tolerance policy.
Harbour City Ferries suspended Master without pay, then
terminated him a month later.
Deputy President of FWC held that there was
a valid reason but the dismissal was unfair due
to factors under s. 387(h).
FIRSTI
NSTANCE
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DRUG USE
Toms v Harbour City Ferries Pty Ltd [2014] FWC 2327
March 2015
Full Bench of FWC found that the mitigating factors
were not factors that addressed the core
issue.
The dismissal was not unfair as there was
deliberate disobedience by a senior employee of
a significant policy.
Decision quashed. Toms application
for relief dismissed.
APPEAL
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ALCOHOL USE
Dowling v Atwood Oceanics Pacific Limited [2011] FWA 1934
March 2015
• Dowling employed by Atwood as an Assistant Barge Engineer onboard an
offshore rig.
• Rig leased to various oil and gas clients. At this stage was leased to BHP.
• Dowling directed to attend BHP induction. Consumed alcohol at one of the
functions at the induction.
• Attended medical next day where alcohol was detected in urine sample.
• Zero tolerance policy: Dowling dismissed due to breaching Drug & Alcohol policy.
• Dowling argued that as he was not under the influence of alcohol and was not
performing any work related duties, the dismissal was harsh.
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ALCOHOL USE
Dowling v Atwood Oceanics Pacific Limited [2011] FWA 1934
Commissioner Williams held that the policy was reasonable in the circumstances, and as Mr Dowling held a responsible leadership role in Atwood’s operations it was not harsh, unjust or unreasonable for him to be dismissed.
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DISHONESTY
Pereira v Toll Energy Logistics Pty Ltd [2014] FWC 3398
March 2015
P worked as Fuel Terminal Officer on the Gorgon LNG
Project on Barrow Island
P sustained minor injury while
undertaking task.
P failed to sign on the T65 JHA prior to commencing task.
Did so retrospectively under the direction of
Safety Advisor.
The next day the Safety Advisor told P
‘everyone knew’ they’d backdated the
forms.
P then removed signature and date, and later resigned and dated the form
with the original date.
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DISHONESTY
Pereira v Toll Energy Logistics Pty Ltd [2014] FWC 3398
Toll undertook investigations, confirming that P had backdated signatures.
Toll dismissed P for serious misconduct in dishonestly backdating a critical safety document.
P submitted unfair dismissal claim.
Held: failure to comply with the safety procedures was a valid reason.
March 2015
WHAT WE CAN LEARN FROM THIS
• Zero tolerance policies are looked upon favourably by the Commission and courts, so long as they are reasonable in the circumstances
– Offshore oil and gas sites are hazardous, so policies generally reasonable
– Make sure they are administered fairly
– Make sure the policies are known to all staff
Administration
Fairness
Reasonable
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SECTION 3:BULLYING AND MENTAL HEALTH ISSUES
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MENTAL HEALTH OFFSHORE
March 2015
• Isolated environment• Technology and connectivity issues• High compression rosters• Fatigue• Inadequacy of psychiatric support• Negative stigma and culture of mental
illness
Practical Issues
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MENTAL HEALTH OFFSHORE
• Workers’ compensation claims• Adverse action complaints• Negligence actions (from both employee
and/or their family)• Orders to stop bullying• Prosecutions
Legal Risks
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Cannan and Fuller v Nyrstar Hobart Pty Ltd [2014] FWC 5072
March 2015
Two workers accused manager of bullying
Investigation revealed employee’s, Cannan and Fuller’s,
bullying behaviour
There had been no disciplinary measures
or performance reviews
Nyrstar HR had full knowledge of the
worker’s behaviour but hadn’t acted
Nyrstar asked Cannan and Fuller to attend ‘show cause’
meetings
Nyrstar terminated employee’s after
meeting
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Cannan and Fuller v Nyrstar Hobart Pty Ltd [2014] FWC 5072
March 2015
Deputy President Wells ‘The failure of Nyrstar to deal with those matters effectively and efficiently created significant pressure within the workplace, which festered and fed, in my
view, an environment of little respect on either side’
Though Nyrstar did have a valid reason to sack the employees because of bullying, its failure to deal with any of the conduct complained of in a contemporaneous manner meant that the workers didn’t have a chance to change their behaviour, making their dismissals
unfair.
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MENTAL HEALTH OFFSHORE
102,000 workers in WA resources sector, 67,000 in
isolated environments
Men most likely to experience symptoms of depression when aged
between 25 – 44 years of age.
Depression is among the largest single causes of
disability worldwide (11%)
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SECTION 4:BALANCING LEGAL AND CONTRACTUAL OBLIGATIONS
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Might get a request for information from:
• Safety regulator,• Royal Commission,• Police,• Workers’ compensation body in relation to a workplace injury or
death.
You will need to consider:
• Your legal rights and obligations,• Your contractual obligations with your client,• How you will be able to fulfil your legal rights and obligations, while
also keeping your client happy.
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SCENARIO
• Your company receives a notice or subpoena to produce documents to a
Court regarding a contract dispute between other parties.
• This letter notifies you that, pursuant to the rules of the Court, you must
not refuse or fail to produce a document or other thing that you are
required to produce.
• Contract – Contains express obligations
• You clearly have conflicting obligations – what do you do?
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SCENARIO
• ‘The Contractor shall use the Confidential Information for the sole purpose of
providing the Services and shall not otherwise use the Confidential Information
whether directly or indirectly or in any way or profit from its use whether during or
after the term of this Agreement, unless such information becomes available in the
public domain through no action of the Contractor or the Contractor is required by law
to disclose the information.
• The Contractor undertakes to treat as strictly confidential and not to divulge to
any third party any of the Confidential Information without the Principal’s prior
written consent’
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FINDING THE BALANCE
March 2015
Obligations
Ultimately, the Court, a Royal Commission or similar body will usually have authority to obtain the document
RightsEnsure the agency seeking the information has the power to do soSeek consent from your client
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QUESTIONS?
Nicholas ElleryPartner
[email protected] +61 8 9460 1615Mob 0417505613Fax +61 8 9460 1667www.corrs.com.au
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