Senior executive faces dismissal for supporting, defending subordinate

The Court of Appeal of New South Wales recently dealt with a case involving the termination of a senior executive’s employment in the public sector. The case highlighted several important issues in employment law, including the lawfulness of directions given to employees, procedural fairness in termination decisions, and the authority to make such decisions within government departments. The worker was employed as a senior executive in a state regulatory authority, which was part of a larger government department.

The case related to his handling of a subordinate employee who was working remotely from overseas. In late 2021, the government department introduced a policy limiting access to its systems from international locations. This policy change became a central point of contention in the case. The worker’s direct manager had given him three separate directions to stop the subordinate employee from working remotely from overseas. These directions were given orally in January, February and March 2022. The reasons behind these directions included concerns about cyber security risks and compliance with departmental policies. Despite these directions, the worker did not immediately comply.

Following an investigation into the worker’s conduct, the department decided to terminate his employment. The termination was based on a finding of misconduct, specifically that the worker had failed to follow lawful and reasonable directions from his manager. On 29 March 2022, the worker received a letter notifying him that misconduct proceedings had been commenced against him. The allegations centred on his failure to follow the three directions given by his manager. The worker provided a response on 4 April 2022, where he did not expressly deny the allegations but emphasised his duty of care to the subordinate employee and her children, citing potential domestic violence concerns if they returned to Australia.

After considering the worker’s response, the department proceeded with the termination. The first termination decision was communicated on 12 July 2022, giving the worker an opportunity to resign.

The court examined each of these arguments in detail, ultimately finding that the original termination decision was valid.

Psychosocial hazards common for workers in the aged care sector

A new Safe Work Australia report has revealed that workers in the aged care sector are at a high risk of psychosocial injuries. Curtin University partnered with a health provider for over two years to complete the research, and found that a total redesign of workplace structures, from the ground up, could be the most effective solution.

The report’s research in 2022 and 2023 took place in four residential care facilities of various sizes in WA. And it found that the industry’s psychosocial hazards went far beyond high emotional demands and client behaviour.

A psychosocial injury is one that comes with “cognitive, emotional and behavioural symptoms,” Safe Work Australia said. It can interfere with a worker’s personal life and affect how someone thinks, feels, behaves, and interacts with others. Safe Work NSW said that “role overload, low job control, conflict or poor workplace relationships and bullying” are all psychosocial hazards. The report also stated that high job demands included issues with staffing, high administrative requirements, ineffective and inefficient work processes and procedures, unique and complex needs of residents and families, and poor communication.

The report found that while later-stage control measures in the sector “frequently targeted client behavioural and psychological symptoms” that led to job demand, there have been a lack of measures to identify “root causes” and modify the work environment. Once the tailored work redesign measures were implemented at the intervention sites, job satisfaction skyrocketed. From the first assessment, 49% of workers in the intervention sites agreed or strongly agreed that their workload was manageable, and that increased to 91% toward the end of the project.

However, the report stated the solutions would need to be tailored for each site and, cited the American Journal of Public Health when noting the importance of involving the workers in the workplace redesign process.

Best practice for workplace misconduct process

Two recent decisions have highlighted the balancing of interests that an employer must aim for when handling workplace misconduct processes. Both cases involved employees claiming workers’ compensation for psychological injury arising during the initial phases of a workplace investigation into their conduct, before knowing the details of the allegations against them.

The relevant statutory provision (s. 11A(1), Workers Compensation Act 1987 (NSW)) provides: “(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. Similar provisions exist in every state/territory and federally.

Two recent appeal decisions from the NSW Personal Injury Commission (Commission) turned on whether the investigative actions of each employer met this “reasonableness” standard and therefore disentitled the injured employee from compensation.

The two cases highlight the complexity of making this assessment and that it is not as simple as spelling out suitable timeframes for managing issues. However, the cases did explore what makes a timeframe unreasonable, when it is ok to move someone and when it may not be, what other restrictions can be placed on them during the investigative period.

In State of New South Wales (NSW Police Force) v. Plant [2024] NSWPICPD 11, the facts involved a police officer subject to a complaint of sexual harassment made by a colleague. Upon being notified of the complaint, the officer was transferred to a different station (where 65% of workers were female) and subject to strict directions as to his day-to-day work (in terms of not interacting with females lower than the rank of Sergeant unless another person is present). Two months later, details of the allegations were provided to the officer. In assessing the reasonableness of the direction, the Commission made particular note of the difficulties this stringent instruction caused in simple matters such as the officer eating in a shared meal room. The action taken against the officer was found not to be reasonable, and the worker’s compensation claim was therefore successful.

In BHK v. Secretary, Department of Education [2024] NSWPICPD 10, the result went the other way, with the employer’s conduct being determined to be reasonable. The claim, in that case, was made by a teacher subject to allegations of inappropriate conduct with students, who was removed from duties while the matters were investigated and waited more than nine months before knowing the details of the allegations.

Cyril Rioli lodges racism claim against Hawthorn Football Club

AFL premiership star Cyril Rioli has lodged a statement of claim in the Federal Court against his former team, Hawthorn, alleging he and other First Nations players and their wives endured racism during their time at the club. The claim was lodged on behalf of Rioli, his wife, Shannyn AhSam-Rioli, and two other former players, Carl Peterson and Jermaine Miller-Lewis, his wife Montanah, and the club’s former Aboriginal Liaison Officer, Leon Egan. The ABC understands the group will be alleging breaches of the Racial Discrimination Act by the Hawthorn Football Club.

Asked about the Federal Court action, current Hawthorn coach Sam Mitchell, who as a player shared four premierships with Cyril Rioli, said: “What I hope happens is everyone feels heard and that we can get to the end of this process with a bit more clarity than we have now.” The court action comes after mediation between the group and the club at the Australian Human Rights Commission (AHRC) broke down earlier this year. The mediation was arranged to address historic allegations of systemic mistreatment at Hawthorn of First Nations players at the club – as reported by the ABC in the 2022 grand final week. Those allegations were laid out in an internal cultural safety review commissioned by Hawthorn, which considered allegations against former coach Alistair Clarkson, assistant coach and football manager Chris Fagan and the club’s welfare manager, Jason Burt.

An AFL investigation into the allegations raised by the internal review ended without any findings last year. In a statement released after the investigation, the AFL said it “Acknowledges each one of the complainants feels hurt, pain and anguish following their time at the Hawthorn Football Club. The AFL knows that during the long history of our game there have been instances of racism and that players have been marginalised, hurt or discriminated against because of their race and for that we say sorry.