KNOWLEDGE CENTRE

Enterprise Legal | Facebook Trolls Be Aware!

It’s not exactly news that it’s important to be careful when posting on social media, especially when it comes to posting about other people or other businesses. It is, however, news that posting defamatory posts and comments on social media could cost individuals big time.

In the decision of Webster v Brewer (No 3) [2020] FCA 1343, the Federal Court of Australia awarded $875,000 in favour of Nationals Member for Parliament Dr Anne Webster, her husband, and their not-for-profit organisation as a result of defamatory materials posted online by Karen Brewer. Ms  Brewer posted a series of ‘vile’ and ‘heinous’ Facebook posts that linked Dr Webster to a secret criminal network of child abusers.

The Court considered the extent of the publication of the posts to be significant. The videos posted by Ms Brewer exceeded 1,000 views, and the published posts received more than 200 reactions, comments and shares. Given the population of Mildura is 54,000, the Court was left with little doubt that the posts had been widely published and were likely to have spread further throughout the local community.

It was determined by the court that the posts had a detrimental impact on the reputations of the Websters and Zoe Support and that the posts and videos had likely “been believed by a small but not insignificant segment of the Mildura community.”

 

Key Takeaways

In making the determination, Justice Gleeson noted that:

  • the Court must consider the ‘grapevine effect’ and acknowledge that defamatory claims and materials can spread beyond the people to whom the materials are published;
  • damages ought to be significant enough to convince an observer that the defamatory allegations are not true;
  • damages must compensate for injured feelings, loss of self-esteem, and sense of indignity, particularly in circumstances where defamatory claims are particularly ‘vile’ and where a plaintiff has a particular reputation based on honesty and integrity;
  • defamatory statements cannot be made about public figures solely because they are in the public sphere;
  • the repetitive posting of the defamatory content was particularly relevant; and
  • in circumstances such as this where the defamatory claims were particularly ‘vile’ or ‘heinous’, it could not be claimed that conduct was justifiable as a defence.

While it may go without saying that it is important not to post materials that are so obviously defamatory, Webster v Brewer (No 3) should serve as yet another warning to be careful before posting on social media. This case makes it clear that the Courts will award significant damages for serious, repetitive, and wholly baseless posts and comments that may damage another person’s reputation.

 

If you are seeking trusted legal regarding online defamation; talk to the Enterprise Legal Disputes team:

☎️ (07) 4646 2624

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Enterprise Legal - Occupiers (Not Employers) Beware - Loose Step Leads to $1 Million in Damages

In a cautionary tale for all employers and occupiers (especially those with stairs!), the recent case of Julie Walker v Top Hut Banoon Pastoral Co Pty Ltd sets a stern reminder that steps need to be taken (pun intended!) to ensure that the workplace is safe and adequately maintained so as to avoid causing injury to others.

 

What Happened?

The plaintiff was employed by Shear Away Pty Limited, however, Top Hut Banoon Pastoral Co Pty Ltd was the occupier of Banoon station where she was attending as a shearers’ cook.

On 28 July 2015, whilst at Banoon station, the plaintiff put her foot on a step, and as she was bringing her other foot down, she felt it tilt and she was suddenly on the ground screaming out for help. She said that she noticed that the step had broken and one side had come “loose of the wood” and had torn completely off, the other side was “hardly attached but there”.

She sustained injuries to her lower back, right wrist, left ankle and right knee. She also suffered a psychiatric injury and an exacerbation of her type 1 diabetes mellitus. Her injuries were assessed to be a 15% whole person impairment.

 

The Law Generally

At law, it is well established that an employer has a non-delegable duty to take reasonable care. The duty is, of course, not absolute; it is the duty of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury.

The employer’s duty to adopt safe systems of work and to provide proper plant and equipment, will operate differently on its own premises and in circumstances over which it has full control, as compared with premises under the control of others and circumstances over which it does not have control.

The distinction in this case fell to fact that the employer did not have full control over the premises and therefore, in the opinion of District Court Judge Weinstein SC, there was no breach of duty on the part of the employer and the employer’s duty where there was a defect in the occupier’s equipment or plant was to do no more than cast an eye over the premises to ensure they appeared safe. The occupier alone was liable in negligence for not taking precautions against the risk of harm from the defect that caused the injuries to the plaintiff.

 

The Damages

Whilst the final orders on damages are still to be made, the plaintiff will be awarded approximately $1 million dollars for her injuries and Weinstein SC’s decision included a non-economic component of around $240,000, given the significant effect on the employee’s lifestyle and health following the fall.

It was held that she was no longer able to perform her role after the fall, and had to quit her job, which she had intended to keep till her late 60s.

 

Lessons Learnt

Whilst the employer in this case was held to not be liable for the injuries sustained by the plaintiff, this does not automatically mean that this will be the case for other employers in the future – no one case is the same! Employers still need to ensure they take reasonable care to avoid exposing employees to unnecessary risks of injury, so far as is reasonably practicable.

For occupiers, it is a stern warning that liability for injuries sustained will not automatically rest with the employer and there is the real risk that liability may fall on the occupier alone if the premises is not safe and not safely maintained.

 

For advice regarding your premises or for advice regarding your Workplace Health and Safety obligations, contact either the Enterprise Legal Workplace team or the Business and Property team today:

☎️ (07) 4646 2621

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Enterprise Legal - Employee Injured While Walking His Dog Whilst On-Call = Compensation

In the world of workplace injuries and workers’ compensation, there is one phrase that can make employers feel both at ease, and a little unsure and that is ‘in the course of employment’.

Whilst on its face the criteria for compensation for a workplace injury could be perceived as being straight forward, every now and again there is a case that leaves us feeling like anything is paw-sible (strap in for some dog puns, please fur-give me).

Along comes the decision in N. v Hydro Electric Corporation [2021] TASWRCT 2 where an employee was successful in a claim for compensation for an injury he sustained whilst out walking his dog whilst on-call.

 

So What Happened?

At the time of the injury, the applicant was employed by the Hydro Electric Corporation as a relief area coordinator and was staying at the employer’s Tullah accommodation for a 7 day period during which he was required to be on-call.

One evening, whilst on-call, the worker ventured out for a walk along the Tullah with his partner and his dog, when he slipped and fell on a wet log suffering a fractured left femur (oof, that’s ruff).

The issue before the Tribunal was whether the injury sustained by the worker arose out of or in the course of the worker’s employment with the employer.

 

The Law

In a nutshell, A worker will suffer an injury that ‘arises out of’ his or her employment if there is a causal connection between the injury and the work. An injury will arise out of a worker’s employment if the worker suffered it whilst performing work that he or she is retained to perform or other work incidental thereto.

Whether a worker suffers an injury ‘in the course of’ his or her employment is a more vexed question and less easily identified. It denotes a temporal connection.

 

The Decision

Finding in favour of the worker, the Chief Commissioner found that the worker’s injuries arose ‘in the course of his employment’. In coming to this decision, the Chief Commissioner Clues applied the test in Comcare v PVYW  and examined:

  1. the meaning of ‘in the course of his employment’; and
  2. whether the employer had induced or encouraged the worker to engage in the activity that led to the injury.

In this case, the worker conceded that his injury did not ‘arise out of’ his employment. He argued that he suffered the injury ‘in the course of’ his employment because it was sustained in circumstances possessing a sufficient connection to his work and Chief Commissioner Clues agreed.

The case really turned on the fact that the worker was walking along the Tullah lake house whilst he was required to: be on call for work after normal hours; be contactable within 15 minutes; and ready to commence work within 15 minutes of being contacted.

The worker was authorised to spend the time between periods of on-call work in any way he wished that was not inconsistent with him being contactable and able to attend work. The Chief Commissioner therefore held that the act of walking along the Tullah lake house was relatively an unexceptional activity and would have likely have been held by the employer to have been an acceptable activity.

The worker’s injury was subsequently held to have occurred in the course of his employment with the employer.

 

Where to From Here?

Whilst the decision is from the Workers Rehabilitation And Compensation Tribunal of Tasmania (and I’m writing this from my 691 m above sea level hill in Toowoomba) and you might think that we are fur-tunate that it wasn’t set in Queensland, it may still be considered as being persuasive here in Queensland and our very own Workers’ Compensation and Rehabilitation Act 2003 contains very similar provisions.  

Ultimately this decision highlights the fact that the concept of arising ‘in the course of employment’ is not a narrow one and that the circumstances of the employment are crucial to determining whether there is a nexus between the activities performed, the injury and the employment.

 

For advice and support on how to safeguard your business and mitigate the potential of similar claims, contact Enterprise Legal’s Workplace Relations team today and request a free initial consult:

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Big Changes to Casual Employment, Care of the Watered-Down IR Bill

The Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2020 (Act) is now law, a watered-down version of the Federal Government's original IR Omnibus Reform Bill (the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 (Bill)) having passed through both houses of Parliament on the 22nd of March 2021.

Whilst it won’t commence until it received Royal Assent, we thought we would summarise some of the key points relating to the big changes for casual employment.

 

Finally, a Definition of a Casual Employee

Excitingly, the Fair Work Act will now define a casual employee as an employee who accepts an offer of employment which makes 'no firm advance commitment to continuing and indefinite work according to an agreed pattern of work'.

This is very important and exciting as up until now, the Fair Work Act has not defined a casual employee and this has caused much contention and pain for employer, employees and the Courts.

To work out if there is a 'firm advance commitment' only the following factors can be considered:

  • whether the employer can elect to offer work and whether the person can elect to accept or reject the work;
  • whether the person will work only as required according to the needs of the employer;
  • whether the employment is described as casual employment; and
  • whether the person will be entitled to any casual loadings or a specific casual rate of pay under the offer of employment or a Fair Work instrument.

A regular pattern of hours does not of itself indicate a 'firm advance commitment'.

The question is to be assessed at the time of the offer and acceptance of employment, and without regard to any party's subsequent conduct during the employment.

 

Casual Conversion

Employers (other than small business employers (less than 15 employees)) will be required to offer to convert any casual employee to full-time or part-time employment if the employee:

  • has been employed for at least 12 months; and
  • for at least six of those 12 months, has worked a regular pattern of hours on an ongoing basis that, without significant adjustment, could continue to be worked as a part-time or full-time employee,

unless there are reasonable grounds not to do so.

Casual employees will also have a residual right to request conversion to full or part-time employment themselves. Employers can only refuse such requests on reasonable grounds (set out in the Fair Work Act) and must respond in writing within specified timeframes. In the event of a refusal, employers must consult with the casual employee before formally refusing their request for conversion.

There is a 6 month transition/lead time for employers to make offers of conversion to all existing eligible casuals, unless they have reasonable grounds not to.

 

New Information Sheet

Similar to the Fair Work Information Statement (which is required to be provided by employers to all new employees), employers will need to provide a copy of the Fair Work Ombudsman Casual Employment Information Statement to casual employees before, or as soon as practicable after their commencement. This information sheet is yet to be published and it will be interesting to see what it contains.

Incorrect characterisation and offset provision

If a court finds that a current or former employee has been incorrectly characterised as a casual, the court will be able to offset any identifiable casual loading paid to the employee against claims for certain entitlements.

Importantly, the employer must have properly attributed the loading as being paid for that purpose.

It is vital, now more than ever, to ensure employers have in place well drafted contracts of employment as they will be imperative in enforcing this provision – particularly with respect to carving out the casual rate of pay and loading and defining what the loading is in fact compensation for.  

 

Where to From Here?

Employers who have not yet taken steps to review their casual workforce, their rosters and contracts of employment should do so now.

For advice and support on how these changes may impact your workplace and to implements measures to support and safeguard your business, contact Enterprise Legal’s Workplace Relations team today:

☎️ (07) 4646 2621

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