KNOWLEDGE CENTRE

Employee Silliness during the Silly Season

After the year that has been, it is understandable that a lot of workplaces will be gleefully looking forward to kicking back a few bubbles and toasting to end of 2020.

But it is important to sing the tale of fateful Christmas parties past and remind employers and employees that the laws of reasonable management action, workplace health and safety and misconduct continue to apply and will land both employers and employees on the naughty list if the elves fall off their shelves.  

 

The Tale of Vai v ALDI

On a not so merry Christmas, the Dandenong ALDI Store and Distribution Centre held their annual Christmas Party in a private function room at the Brownstone Micro Brewery, with all costs, including alcohol paid for by ALDI.  

At the event, Warehouse Operator, Mr Sione Vai, consumed a significant amount of alcohol and had also had pre-drinks before attending the event. He was subsequently cut off by the bar staff and managers and in a drunken state, threw a glass of beer in the direction of his colleagues, narrowly missing them and smashing on the wall behind them. 

Mr Vai was later dismissed for his conduct and brought an application in the Fair Work Commission alleging that he had been unfairly dismissed.

Mr Vai’s claim was unsuccessful on the grounds that:

  • ALDI had taken appropriate steps to control and health and safety of its staff by engaging a private venue with Responsible Service of Alcohol obligations to control and serve alcohol to attendees;
  • It was not a situation in which it was a case of “help yourself” in regard to obtaining drinks – unlike the decision in Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156 where an employee’s drunken antics were held to not be a valid reason for his dismissal in the circumstances where his employer provided uncontrolled access to alcohol at a work Christmas function;
  • The throwing of a full glass of beer at colleagues was so significant to warrant his dismissal as it could have had significant consequences had they had been hit; and
  • Procedural fairness and natural justice were afforded.

 

Tips for Having a Safe and Merry Christmas

Whilst it is appreciated that it can be difficult for employers to predict all facets of employee behaviour at work sponsored Christmas events, under occupational health and safety laws employers have a legal responsibility to provide a safe work environment for all employees during work related activities, including Christmas parties.

As such, it is vital that in the lead-up to Christmas, employers take steps to implement effective strategies to prevent unwanted incidents and to ensure the safety of employees at work endorsed Christmas functions.

This may include:

  • Refreshing employees' awareness of any applicable workplace policies or codes of conduct;
  • Reminding employees to drink responsibly and to organise appropriate transport to and from the venue if they intend to consume alcohol;
  • Setting clear standards for behaviour and conduct ahead of the event;
  • Monitoring alcohol consumption and ensure supply is not uncontrolled (consider ensuring the service of alcohol is carried out by someone who holds a current Responsible Service of Alcohol certification); and
  • Taking proactive steps to manage poor behaviour and conduct immediately.

 

We hope you all have a safe and merry festive season and you all take steps to ensure neither your employees or your business end up on the Fair Work Commission or Workplace Health and Safety Regulator’s naughty list.

 

...but if you do, always remember that the experienced team at Enterprise Legal are here to help!

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Burrows v Houda – When an Emoji Says a Thousand Words!

Think emojis don’t count when it comes to defamatory comments online? Think again!

Recently the District Court of New South Wales determined that an emoji could convey a defamatory meaning. In the case of Burrows v Houda [2020] NSWDC 485, proceedings were brought by Zali Burrows against Adam Houda in relation to posts made on Twitter in July 2019 and May 2020.

Ms Burrows made the claim that words and images in the tweets gave rise to defamatory imputations. One of Mr Houda’s tweets linked to an article in the Herald which reported a judge’s suggestion that Ms Burrows’ conduct be referred to the Law Society for potential disciplinary action, which received a number of replies. One of these replies stated “July 2019 story. But what happened to her since?” Mr Houda responded with a ‘zipper-mouth face’ emoji. 🤐

Ms Burrows asserted that the tweet conveyed a range of false and defamatory claims, including that she had been disciplined due to misconduct.

In determining the matter, her Honour Justice Gibson confirmed that:

“As is sometimes the case with social media posts, the meanings may be gleaned from pictures as well as words, and where liability for publication arises from more than one post, from the dialogue which ensues.”

Justice Gibson referred to the online dictionary Emojipedia and said that the zipper-mouth emoji means ‘a secret’ or ‘stop talking’ “in circumstances where a person impliedly knows the answer but is forbidden or reluctant to answer.” In the context of Mr Houda’s other tweets, the implication of the emoji that Ms Burrows had acted improperly was pretty clear.

Her Honour noted that “the ordinary reasonable reader of tweets derives the meaning of the imputation from the circumstances surrounding the tweet,” and was satisfied that most social media users would make adverse assumptions about Ms Burrows given that the tweets were accompanied by an article that had the effect that Ms Burrows had acted unsatisfactorily.

This decision is especially notable, not only as it set a precedent that an emoji alone can be defamatory, but also because it is the first instance where an Australian Court has considered an emoji in written communications. Given the increasing use of emojis in day-to-day life, it certainly won’t be the last.

The Burrows matter is a well-timed reminder to pause and consider before posting comments that could be construed as being defamatory on social media, even when comments are limited to an emoji.  

 

If you believe you have been subject to defamatory comments, with or without emojis 😆, the experienced team at Enterprise Legal can help you to weigh up your options.

Contact us today:

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Enterprise Legal - Bonuses are at the Absolute Discretion of the Employer.... Right?!?

We can all be forgiven for thinking that employee bonuses are and always will be, subject to the complete discretion of the employer, but what if you were told that that isn’t always the case?

The recent decision in Subasic v Hewlett Packard Australia Pty Ltd [2020] ACTSC 2 has continued to chip away at the ‘absolute discretion’ defence and confirmed that an employment contract that states a bonus is “in the absolute discretion” of the employer, doesn’t mean the employer has the unlimited power to change how the bonus is paid or withhold payment and in fact, such a decision will be a costly one.

 

So What Happened?

Melinda Subasic was employed by Hewlett Packard Australia Pty Ltd and her contract of employment included the payment of an incentive scheme that was “subject to change or cancellation at [the employer’s] discretion”.

Subasic’s performance was of such a high standard that she generated a significantly large incentive payment of $446,250.39 under the incentive scheme and when it came time to pay up, Hewlett Packard Australia Pty Ltd sought to implement a cap that would limit the amount that she would be paid to just $136,500.00. Understandably, the employee sued.

 

What Did the Court Say?

The Supreme Court of the Australian Capital Territory found that by changing the incentive scheme, Hewlett Packard Australia Pty Ltd breached the employment contract.

It also held that the discretion to change or amend the scheme was to be exercised “honestly and conformably with the purposes of the contract”, which was not evident in this case.  

The Court also found that the employer was not permitted to decide arbitrarily, capriciously or unreasonably that it need not pay an incentive payment where the set objectives had been satisfied.

Quite simply, Hewlett Packard Australia Pty Ltd did not have the discretion to simply impose new terms and decide to withhold the incentive after it was validly earnt.

The employee was awarded $309,750.39 plus interest in the sum of $61,568.19 and Hewlett Packard Australia Pty Ltd was ordered to pay costs.

 

The Lesson for Employers

The decision in Subasic v Hewlett Packard Australia Pty Ltd [2020] ACTSC 2 is a worthwhile reminder to employers that ‘absolute discretion’ isn’t actually absolute and employers should plan ahead and tread carefully when implementing and managing employee incentive schemes.  

It is also a worthwhile reminder that withholding employee incentives is a dangerous option as businesses look at ways to reduce costs in the wake of COVID-19 and it is vital to get sound legal advice before taking steps that could cost your business far more in the long run.

 

If you would like to know more or you would like to speak to one of our Workplace Relations specialists, contact Enterprise Legal today for a free introductory consult:

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Don't Serve Legal Documents via Dropbox or You May Find Yourself Dropped Into Hot Water!

In this digital age, many businesses are embracing all the new and exciting things technology has to offer including remote working, virtual meetings and electronic file sharing.

Whilst technology has indeed revolutionised a number of ways in which we work and communicate, the legal industry is still quite a ways behind and you will find yourself dropped into hot water if you do not do your research and check if your tech-savvy approach will be accepted by a court.

The case of McCarthy v TKM Builders Pty Ltd [2020] QSC 301 is an important example of when the use of Dropbox proved fatal to an application under the Building Industry Fairness (Security of Payment) Act 2017 (Qld).

 

What Happened?

The Building Industry Fairness (Security of Payment) Act 2017 (Qld) (“the BIF Act”) provides for, among other things, the adjudication of disputes over progress payments in building construction contracts.

Importantly, as part of the process of applying for an adjudication decision, the BIF Act requires that an applicant must give a copy of an adjudication application to the respondent. Quite literally, section 79(3) of the BIF Act states:

‘A copy of an adjudication application must be given to the respondent.’

In the case of McCarthy v TKM Builders Pty Ltd [2020] QSC 301, the applicant, Mr McCarthy and TKM entered into a construction contract for a building project at Bells Creek.

Later, TKM filed an adjudication application in the Queensland Building and Construction Commission and on 15 June 2020, they sent an email to Mr McCarthy, attaching the adjudication application form and a Dropbox link to their submissions. The email simply stated:

“Please find below link to correspondence and attached adjudication claim lodged with the QBCC today.
https://www.dropbox.com/sh/jt7427ejjhz70ik/AACVuiCVC1Ug2YG6X27CFBuca?dl=0”[1]

Of importance, the submissions could only be obtained by opening the Dropbox link.

Mr McCarthy’s solicitors prepared and submitted a response to the adjudication application and argued that Mr McCarthy had not been given a copy of the adjudication application in accordance with s 79(3) of the BIF Act and, as a result, the adjudicator did not have jurisdiction to deal with the application.

 

What Did The Adjudicator Say?

Upon examination, the adjudicator held that he did have jurisdiction to deal with the application, on the grounds that:

‘the fact is that it has been demonstrated that the respondent was in possession of a copy of the adjudication application and its supporting submissions. If a document has been received by the other party, the manner in which it was served is unlikely to matter.’

The adjudicator found in favour of TKM on the payment claim and Mr McCarthy paid the amount found to have been owing.

 

On Appeal - Was the Application “Given” to Mr McCarthy?

The matter was subsequently appealed in the Supreme Court of Queensland and overturned by Judge Martin J, who found that TKM had failed to appropriately give Mr McCarthy the adjudication application as required by section 79 of the BIFA Act.

His reasoning? Dropbox was simply not sufficient for the purposes of section 79 of the BIFA Act and section 39 of the Acts Interpretation Act 1954 (Qld) which also provides for the service of documents.  

In making his decision, Judge Martin referred to the decision in Conveyor & General Engineering Pty Ltd v Basetec Services Pty Ltd [2015] 1 Qd R 265 at 268 [22], where Justice McMurdo said:

“[37] Actual service does not require the recipient to read the document. But it does require something in the nature of a receipt of the document. A document can be served in this sense although it is in electronic form. But it was insufficient for the document and its whereabouts to be identified absent something in the nature of its receipt. The purported service by the use of the Dropbox facility may have been a practical and convenient way for CGE to be directed to and to use the documents. But at least until 2 September 2013 (when Mr How became aware of the contents of the Dropboxes), it did not result ‘in the person to be served becoming aware of the contents of the document’.”

Judge Martin held that Mr McCarthy was not given a copy of the adjudication application in accordance with section 79 of the BIFA Act and as a result, the adjudicator did not have the necessary jurisdiction to make the decision.

 

Lesson Learnt

It is pretty clear that if you are required to ‘give’ another party a document under the BIF Act, you should avoid using Dropbox. You will save yourself being dropped into some seriously hot water like TKM in this matter.

Whilst it might be tempting to use exciting new technology in every aspect of your business and dealings, how you share, serve and file documents in legal proceedings can make or break your claim and it is therefore vital that you get the right advice from the start before you take a wrong turn.

 

For advice and support with disputes and the construction industry, contact our Dispute and Construction division:

Sharne Lategan 
Principal Director & Legal Advisor – Construction & Disputes

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