Managing Employment Law Issues

Transcription

1 Managing Employment Law Issues In Offshore Contracting Relationships Presenter Nicholas Ellery Partner, Corrs Chambers Westgarth /9

2 AGENDA 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

3 SECTION 1: WHAT TO DO WHEN A CLIENT INSISTS YOU TERMINATE AN EMPLOYEE 3

4 YOUR RELATIONSHIPS

5 TERMINATING EMPLOYEES Practical Issues Client demands, wants and needs Demands of the particular project Employee availability Other deployment possibilities

6 TERMINATING EMPLOYEES Legal Risks Unfair dismissal claims Adverse action claims Issues with redundancy and severance payments Procedural fairness issues

7 SECTION 2: MANAGING MISCONDUCT AND FITNESS FOR WORK 7

8 MISCONDUCT AND FITNESS FOR WORK Practical Issues Drug and alcohol abuse Obesity Disciplining staff Dishonesty Pre-existing medical issues Health and safety Client expectations 8

9 MISCONDUCT AND FITNESS FOR WORK Legal Risks Unfair dismissal allegation Discrimination complaint Issues with procedural fairness Workers compensation Breaching contractual obligations to client Health and safety laws 9

10 DRUG USE Toms v Harbour City Ferries Pty Ltd [2014] FWC 2327 F I R S T I N S T A N C E 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). 10

11 DRUG USE Toms v Harbour City Ferries Pty Ltd [2014] FWC 2327 A P P E A L 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. 11

12 ALCOHOL USE Dowling v Atwood Oceanics Pacific Limited [2011] FWA 1934 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. 12

13 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. 13

14 DISHONESTY Pereira v Toll Energy Logistics Pty Ltd [2014] FWC 3398 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. 14

15 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. 15

16 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 Reasonable Offshore oil and gas sites are hazardous, so policies generally reasonable Fairness Make sure they are administered fairly Administration Make sure the policies are known to all staff

17 SECTION 3: BULLYING AND MENTAL HEALTH ISSUES 17

18 MENTAL HEALTH OFFSHORE Practical Issues Isolated environment Technology and connectivity issues High compression rosters Fatigue Inadequacy of psychiatric support Negative stigma and culture of mental illness 18

19 MENTAL HEALTH OFFSHORE Legal Risks Workers compensation claims Adverse action complaints Negligence actions (from both employee and/or their family) Orders to stop bullying Prosecutions 19

20 Cannan and Fuller v Nyrstar Hobart Pty Ltd [2014] FWC 5072 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 terminated employee s after meeting Nyrstar asked Cannan and Fuller to attend show cause meetings Nyrstar HR had full knowledge of the worker s behaviour but hadn t acted 20

21 Cannan and Fuller v Nyrstar Hobart Pty Ltd [2014] FWC 5072 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. 21

22 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 years of age. Depression is among the largest single causes of disability worldwide (11%) 22

23 SECTION 4: BALANCING LEGAL AND CONTRACTUAL OBLIGATIONS 23

24 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.

25 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?

26 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

27 FINDING THE BALANCE Obligations Ultimately, the Court, a Royal Commission or similar body will usually have authority to obtain the document Rights Ensure the agency seeking the information has the power to do so Seek consent from your client 27

28 QUESTIONS? Nicholas Ellery Partner Tel Mob Fax