Employer duties
Latimer V AEC
1. Factory flooded 2. Greasy film over surface 3. employer added 3 tons of sawdust to reduce the grease 4. employee slipped and fell Held- Not in breach , did what was reasonable
Ferraloro v Preston Timber
1. Ferraloro employed to drive trucks loaded with materials 2. Hit in the face by iron lever while unloading 3. He had a duty to unload 4. The employee loading the truck put the material in an unsafe manner held - employer liable for unnecessary risk of injury
Turner V state of south Australia
1. Qualified welder working temporary 2. Jetty had been badly damaged when ship collided with it 3. injury suffered while trying to lift a 44 gallon drum of fuel 4. no instruction given on what to do in emergency and how to lift it correctly Held - Liable 1. Failure to warn and train 2. Foreseeable that employee may try to carry on his own 3. discharge of standard and duty of care.
Repuation- Curro v beyond productions
1. employee was in an entertainment industry 2. employee was signed into a contract of providing service . 3. no mention on time and frequence 4. Appropriate quality work was not given causing a reputation damage Held - there has to be a reasonable amount of appropriate quality work given so that the employee can retain his reputation and name
Competent staff - Hudson v Ridge Manufacturing
1. practical joker was playing a prank on employee 2. employee broke wrist in wrestling with the practical joker Held - Breach of duty , the employer needs to remove source of danger and make it safe.
Easy to remember -
1. safe system of work 2.competent fellow employees 3.safe plants and equipment's
Exceptions
1. when it comes to the employees reputation ( curro v beyond productions) 2. Reduction in earnings 3. Special skills
Employer Implied Terms Include:
1.Duty to pay wages 2.Duty to provide a reasonable amount of work - skilled employee - courts may be prepared to imply that there is a duty in order that the employee maintains his or her particular skill set. 3.Duty of health, safety and welfare - an employer agrees to take reasonable care to ensure it employees' health, safety and welfare at work. This duty extends to taking reasonable care not to cause psychiatric harm to employees by reason of the character of volume of the work imposed on them. 4.Duty to provide a safe working environment - employers are under an implied obligation to provide and maintain, so far as is reasonably practicable, a working environment that is suitable for the performance of the contractual duties of employees. This duty may be breached, for example, where an employee is being bullied at work 5. Duty not to terminate a sick employee's contract of employment on the grounds of sickness - where that employee, if he/she continued employment
What are the employer duties owed to the employees
1.Implied duties by statue and common law 2. Mutual duty of trust and confidence ( Acting in good faith) 3. Paying for performed work or service 4. Meeting Standard of care
What comes under providing a duty of care
1.Safe system of work 2.providing information about any hazards and risks from the work 3.providing instruction, training (including an induction) and supervision to all employees so are able to work safely; 4. Duty to employee competent staff (efficient)
substance testing
A screening to identify drug use. It is performed to check if their employees can perform work safely Usually done when work is more on the dangerous side ** eg. drivers, pilots etc
Hill v CA Parsons & Co Ltd ( Unfair dismissal)
An engineer was dismissed after he joined the trade union, at age 63, which was not the majority union of the employer. Held - granted an injunction for him to remain in the job, particularly given that he still retained mutual trust and confidence with the employer.
Twynam Pastoral Company v Bennett
Bennet was injured repairing a wool press machine Bennett attempted to fix the machine without any proper equipment or help He had superior skills and was considered to work without equipment and skills during emergency and he also had the capacity The company had engaged contractors for the shearing and they had employed Bennet Who has breached the duty of care Held - Pastoral company is liable since the breached duty of care and the employers did not be held liable since they were not aware the machine needed repairing
Paris V SBC
Blind in one eye worker metal lodged in his eye during work no goggles Held- Higher duty of care and was supposed to be provided with goggles
Printing and kindred industries union v wilke directories
Employer can dismiss an employee for bullying and harassment dismissal of Mr Latta for harassment Employees felt bullied Mr. Latta dismissed Held - The dismissal was not unfair and the company and union have a duty to take steps to keep their employees safe of harassment
Overpayments by the employer
Employer can get back the over payments Cases - Civil Aviation Authority v Jorm 1. Over payment was made in the employee's account as a mistake 2. employee was aware Held - employee had to pay the amount back with interest
Employer duties
Employer duties are those duties that the employer is bound to provide and perform to his employees reasonable treatment, safe working conditions, fair labor
Bullying and Harassment
Employer needs to limit such kinds of harassment and provide a safe and injurious working place for its employees
CBA V BARKER
Employment contract Implied terms Employee's position made redundant Redeployment for Mr.Barker They stated this wont be a term of employment contract Terminate with minimum notice of 4 weeks Held- It was a term of the contract and CBA had breached the implied term and failed to advice him a possible redeployment opportunity
Reduction in earning - Baumann v Hulton
He was a photographer The employee had a reduction in his income due to the employer not providing enough work Held - there has to be a reasonable amount of work given so that the employee can earn
Nation Wide news V Naidu, Iss Security v Naidu
ISS Security had a contract with Nation Wide news Nadu was under the supervision of Nwn He was bullied and suffered from trauma and depression due to this Held - NWN had breached duty of care by not taking any action to prevent the bullying even when they were aware of how the supervisor treated Naidu Iss security were not liable because they did not know and could not foresee this.
An employers duty of care is NON DELEGABLE Kondis v STA 108 pg
Kondis injured he had a task to dismantle metals STA hire a crane from 3rd party he was injured when a rod fell from the crane Held - Even though the crane was form a 3rd party it still had a duty of care to its employees which was not delegable .
Safe system of work
Manner and use of equipment ,training , supervision , protective clothing , warnings , instructions etc
Taking Precautions
Necessary measures need to be taking to avoid any undesirable circumstances and just because there is a safe work policy it will not limit the liability Training and monitoring employees is essential
Other duties
No duty to provide a reference , how ever if provided it should be true and not lead to an economic loss of the employee ( if false) - ( Spring v Guardian insurance. If good reference is given, employee may sue for unfair dismissal ( castledine v rothwell engineering) 113 Duty to provide accommodation in remote areas or high level caring for other No duty for medical care. How ever in emergency situations , minimum duty asto calling an ambulance applies
Duty to perform work
No general duty . ( Collier v Sunday refree)
No work, No pay Willing and ready to work - pay No duty to pay if work is incomplete
No work no pay- When the work is not done, the employee is not eligible for payment of any salary (Miles v wakefield) - work not done ! 97 The employer is not entiled to give the employee work ( only under certain circumstances), however if the employee is willing and ready to work , he has a duty to pay No duty to pay if work is incomplete or partially performed unless accepted by employer
Mclean V Tedman
P, garbage collector, hit by car. P and employees had set up work practice of driving down road, whilst running across road to collect and empty bins. Dangerous but quicker than going up and down road twice. D (employer) argued that P had adopted work practice themselves Held - Liable
Payment of wages
Payment of wages is an implied duty. it needs to match the minimum standard of wage at least and further wage rates will depend on agreement Unpaid work can take on different forms - from vocational placements, unpaid internships, unpaid work experience and unpaid trials. They are entered into for a number of reasons. These include: 1.to give a person experience in a job or industry 2.to test a person's job skills 3.to volunteer time and effort to a not-for-profit organisation.
Collier v Sunday refree
Plaintiff was not given an work although he was paid and asked to go home he was passionate and wanted to work Held- no obligation to work
Special skills - Ramsay v Blackadder
Ramsay was a skilled doctor and not giving him work might mean that he might lose his skills Held - there has to be a reasonable amount of work given so that the employee can retain his skills
Standard of care
Reasonable standard of care
Mutual duty of trust and confidence ( Acting in good faith)
Respect and discipline Working well Paying well Keeping information confidential Cases- Malik V BCC CBA V BARKER
CFMEU V Wagstaff Piling
The employees were working on construction of a motor way they had an enterprise agreement which was silent on any substance testing Issue - is it still the duty of employer to test them despite the silence of the agreement Held - Yes , it is still the employers duty under work and safety regardless of agreement
Malik V BCC
Worked for the Bank BCC went insolvent due to massive fraud & other criminal activities lost their jobs and they sought employment elsewhere They could not find jobs. sued the company for their loss of job prospects, alleging that their failure to secure new jobs was due to the reputation damage they had suffered from working with BCC Held - Breach of Mutual duty of trust and confidence
Loiterton v PD Mulligan
an employee and abattoir were fighting employer was aware of them fighting He tried to separate them from each other Held - action not sufficient , punishment or dismissal is not enough , duty is putting in place a safe system to avoid future violence
Duty to Indemnify
duty to pay for damages where agreement is silent on this employer is responsible for damages
Perkins v Grace Worldwide (Aust) Pty Ltd ( ( Unfair dismissal)
terminating an employee for allegedly supplying marijuana in the workplace when there was no evidence that this had occurred Held - Unfair because breach of duty of T and C by acting on unsubstantiated allegations
