Unfair dismissal update
Feb 2011 |Is termination of an employee suffering from a degenerative medical condition unfair?
In Davis v Lasting Changes Aged Care Services [2011] FWA788, Fair Work Australia ("FWA") ruled on whether it was unfair to dismiss the applicant because she had a degenerative back condition and had refused to work day shifts rather than night shifts as she had prior to injury and the condition manifesting itself.
The applicant had sustained a back injury at work and had been absent for some time. She had overcome the injury however she experienced pain on an ongoing basis due to an underlying degenerative spinal problem. As a result of her lengthy absence, the employer had filled her position on night shift. Upon her return, the only position available was on the day shift. Her employment contract did not specify that she was to work the night shift only and otherwise stated that she was required to work whatever shifts she was rostered for.
The evidence was that the bulk of work was done during the day and afternoon shifts. FWA also assumed that it would have been beneficial to the applicant to work on the day shift rather than with a smaller group on night shift as she would have easier access to additional assistance for lifting tasks or any other task that her back condition restricted her in. There was no evidence the employer had singled her out or otherwise attempted to treat her differently in allocating her to the day shift.
There was evidence of sufficient correspondence between the parties and legal representatives that the issues of her ability to perform the work and her refusal to work day shift had been adequately notified and discussed. Given her early involvement of legal representation, there was no issue as to whether she had been deprived of adequate support in the discussions. The applicant did not lead any evidence as to why she could or should work the night shift only, and FWA did comment on the lack of that evidence.
In balancing all of the above, FWA concluded that the termination was not unfair and the application was dismissed.
Unsuccessful challenge to an imperfect drug and alcohol test procedure
In Ley v McMahon Contractors Pty Ltd [2011] FWA 694, Ley challenged his dismissal for alleged breach of the employer's drug and alcohol policy.
Ley had signed an Australian Workplace Agreement (AWA) with a condition that he comply with a drug & alcohol testing procedure. He underwent a site specific induction which provided that blood alcohol testing was to be carried out on every shift and that the site alcohol limit was zero. He was breached for a positive blood alcohol content reading and was provided with a drug & alcohol warning notice (the "Notice"). The Notice provided that the employer viewed the breach of policy as a serious offence, that a reoccurrence might result in his immediate dismissal without further warning and required him to repeat his acknowledgment that he had reviewed the drug & alcohol policy and understood it. The policy specified that testing positive a second time within a 12 month period meant the employee was likely to be terminated in accordance with the first and final warning issued for the first offence.
Several months later, Ley returned another positive test. There was some dispute as to what followed, however it was accepted that the initial test was checked three times on another machine, which returned two negative "pass" results and a "fail" result, then tested a further time on a further machine for a positive "fail" result. The first and final tests were conducted on machines that actually gave a specific alcohol reading. The intervening test machine simply gave a "pass" or "fail" result. Ley admitted that he had been drinking at a social rugby game the day before. Ley was stood down, interviewed by the mine manager, and then terminated by letter later that day.
Ley argued that his dismissal was unfair as the repeat testing was not in line with the documented procedure and that once the repeat test had been a "pass" he should have been allowed to proceed with work. He further alleged that the employer had not followed its process because the policy erroneously referred to the contents of subparagraphs which did not exist (a numbering error in the document which had not been picked up by HR).
In evidence, it was established that Ley's initial and final tests (which both gave positive "fail" results) were on the most accurate machines operated by the employer and that the 3 other tests (two "pass" and one "fail" results) were conducted on a less accurate passive sensor, without an alcohol reading.
After considering the evidence, the FWA did find that there was a valid reason for dismissal. Ley was fully aware of the drug & alcohol policy and he had registered fail readings. The retesting was not inconsistent with the policy and was justified to resolve uncertainty. Ley was aware and notified of the reason for his termination and he had been given an opportunity to explain his conduct prior to his dismissal. No support person was present at his termination meeting, however, Ley did not make an issue of this in his application.
In the circumstances, FWA was satisfied that Ley had not been unfairly dismissed and accordingly, his application was dismissed.
"Exceptional circumstances" entitling an extension of time of an unfair dismissal application
In Blythe v Moreton Bay Regional Practice Network Limited t/as Moreton Bay General Practice Inc. [2011] FWA 733, FWA did find that exceptional circumstances did exist to justify the granting of an extension of time for bringing an application for unfair dismissal.
Blythe lodged her application less than 24hours late. She had sought legal advice within 6 days of her dismissal, her solicitors had briefed counsel to settle her application and the final application had been provided to town agents for filing within time. The town agents however neglected to file until a day late, despite being required to provide "same day service".
The FWA Commissioner was satisfied that legal representative error can be a basis for finding that "exceptional circumstances" exist to justify an extension of time, particularly where the conduct of the applicant was blameless and she had actively pursued protection of her rights (in addition to satisfying the other requirements for an extension).