0408 802212 david@kiddslaw.com

Kidd's Law Publications Blog

The latest news and updates from Kidd Legal Research Services Pty Ltd

Drug and alcohol policy too wide

Employers need to watch their drug and alcohol policies are not too wide. In the case of Oliver [2019] SAET 195 the policy was so expansive ‘that an employee who had drunk a glass of wine or beer after work or taken Panadol could be caught by it’. It also allowed the employer to conduct screening just on the suspicion screening was warranted. Further, the employer tried to have the worker undergo screening at a time he was not expected to be working. The policy did not specify the methods of drug testing proposed, nor whether an initial screening will be accepted as finally conclusive or if formal confirmatory lab testing would be ordered in the case of a non-negative result. Although the R’s work environment was a hazardous one, it permitted the employer to test in circumstances that exceeded the maintenance of a safe work environment. The worker responded angrily to the attempt to drug test him after he was accused of being a drug addict. His dismissal for serious misconduct was not...

Driver’s duty to alighting passengers

In Fleming v Shoobridge 8/7/09 [2009] ACTSC 80 [(2009) 53 MVR 138] Master Harper considered liability in the case of a P who had his hand though the driver’s window of a car owned by D on the interior door handle. P was to remove his hand before his girlfriend Tracey drove off, but unexpectedly was unable to as it got caught. Tracey, unaware of this, did drive off and P was injured as he was dragged along a few metres. Tracey was found to be negligent as she should have delayed her departure until she was sure P was clear of the vehicle, just as was found in the earlier case of Ratclifffe v Jackson (1993) 18 MVR 297 where a passenger had alighted from a car, but had her clothing caught in a door. The P, Mr Fleming, not considered negligent at all. See Grigoriadis v Sidiropoulos 13/9/19 [2019] NSWDC 486 where Levy SC DCJ found D wholly negligent when he drove off not realizing P’s long coat was caught in his rear passenger door. “At best, the plaintiff’s actions amounted to no more than a casual moment of inattention, in poor light conditions … She had safely alighted from the vehicle …The fact that her coat was caught in the door does not of itself give rise to a finding of contributory negligence against her” @276. P “was, initially unaware that her coat was caught in the closed door. If she had been given the chance to step away, she might have come to that realisation earlier than she did. … Unfortunately, the first defendant did...

Summaries of Most Recent WHS cases

WHS Act s19(1) – Amusement devices [2019] QDC 150 Reynolds v Tailored Adventures P/L (s21 health and safety duty breached – this was an appeal on penalty where a user of a zip line suffered serious injuries – “The ZipSTOP manual could not have been clearer. Strict compliance with the manual would have prevented the injuries being caused” @92 – “actions of the respondent prior to the incident established that efforts were made to ensure that the ride was safe. It cannot be said that they were recklessly indifferent to the safety of persons on the particular zip line” @93 – “the need for general deterrence should have been reflected in a greater penalty” @110 – fine of $50,000 appropriate) WHS Act s19(1) – Body parts injured by machines [2019] NSWDC 302 SafeWork NSW v Millwell Cush P/L (“To obtain better access to clean the feed rollers, McGuffog lifted the major roll cover and observed a large chunk of mouldy wheat on the break roller. Whilst attempting to move this lump with his left hand, the break rollers caught the fingers on his left hand and pulled it into the break rollers of the roller mill. McGuffog attempted to use his right hand to try and pull his left hand out of the roller mill. The fingers of his right hand were also caught between the rollers. As a consequence of the incident, McGuffog had four fingers of his left hand surgically removed, as well as the tip of his left thumb. The fingers on his right hand were severely crushed, resulting in a degloving of the skin and...

A Brief Wrap Up Of Recent Interesting Cases

[2019] FWC 2182 (whilst on duty as a flight attendant, “[c]onsuming on her own admission one quarter of a litre bottle of vodka provided the respondent with a valid reason for her dismissal” @77 – “having regard to the continuing and repeated dishonest approach to the investigation by the applicant, which in no manner can be regarded as a spur of the moment reaction … the applicant’s untruthfulness also provided a valid reason for her dismissal. It was an ongoing course of deception that led the respondent into inquiries over a lengthy period that it need not have embarked upon” @80 – Commission did “not accept that consuming alcohol while occupying a safety sensitive position in breach of the respondent’s policies and the Civil Aviation Regulations is misconduct where a warning ought to first be provided” @88 – A had a long and exemplary record with Qantas – “There may have been a different outcome had Mrs Warr been upfront and honest when it was first alleged she had consumed alcohol from company stores while on duty” @94 – dismissal not harsh etc) Dismissal – Sexual/Pornographic issues [2019] FWC 606 (the A, a male, was lawfully dismissed for sending text messages to a male co-worker of a sexual nature and making declarations of love where no mutual loving relationship existed – a reference to molestation was also inappropriate – it was reasonable for R to conclude the text messages were not welcome – A considered his behaviour a private matter and showed no remorse) Enterprise agreement – Intellectual freedom [2019] FCCA 997 (the A, who was the head of...

No Relationships Work Policy

In [2019] FWC 1533, handed down on 8/3/19, the Fair Work Commission found constructive dismissal where the Respondent had a policy that its workers should not have relationships with each other and that other workers were to dob them in if they did. The consequence of breaking this rule was that workers on visas would be sent home. The Applicant, who was on a work visa, walked away from her job upon realizing she’d been found out. She had no effective or real choice. There was no valid reason for the Applicant’s dismissal and given the consequences of the dismissal for her and her family, her dismissal was harsh, unjust and...