Category:

Security company and its director fined $116k for bullying

September 2019

Melbourne security company Monjon (Australia) Pty Ltd and its director John Bernard Moncrieff have been fined a total of $116,250 for bullying offences. The Broadmeadows Magistrates’ Court heard that WorkSafe Victoria was called to the company’s office after an incident in October 2015, when Mr Moncrieff pushed an employee down a corridor in front of other staff. In a following incident, Mr Moncrieff refused to let an employee leave the office until she agreed not to resign over the first incident. Mr Moncrieff and Monjon were convicted and fined $19,250 and $97,000 respectively after pleading guilty to one charge each of failing to provide, as far as reasonably practicable, a safe and healthy working environment. ‘A culture of entrenched bullying’ WorkSafe Victoria said its investigation between April 2015 and August 2016 revealed Mr Moncrieff “led a culture of entrenched bullying”. The court heard that Mr Moncrieff’s bullying conduct included him speaking to employees in an aggressive and intimidating manner by: raising his voice; swearing; and using sexist and racist language to describe employees. Mr Moncrieff had also: made sexually suggestive comments towards employees; threatened to withhold pay and take away employees’ security licenses; made inappropriate contact with employees; and encouraged a culture of managers speaking aggressively to employees. No excuse for bullying behaviour Executive Director of Health and Safety for WorkSafe Victoria, Julie Nielsen, said there is no excuse for sexist, racist or demeaning behaviour in any workplace. “Under no circumstances is it acceptable for managers or directors to abuse their position of power by acting aggressively or inappropriately towards employees,” she said. “Bullying can have long term health effects on workers that are every bit as serious as those sustained from physical injuries and WorkSafe will not tolerate behaviour of this nature.” How do you address bullying in your workplace? Have you taken measures to prevent bullying from happening? Do you have a process to deal with bullying if it is reported? If you don’t, take decisive action now before you end up with a serious and costly problem. Find out more.  


Your questions answered: How do we approach unhygienic employees?

September 2019

Q We receive many complaints about the men’s toilets. The complaints relate to urine on the floor, excessive pubic hairs in the urinals, excrement on the walls and floor, and boot marks on the toilet seats. To date, we have added motion-activated hand dryers, installed signs to remind people to wash their hands, and we always ensure there is plenty of toilet paper, air freshener and hand wash available. We have workers concerned about their health when they share workspaces in the workshop, which involves using machines, workbenches and hand tools. Some workers avoid using the toilets unless absolutely necessary and won’t even have biscuits from the barrel as they are worried whose hands may have been in there before them. We wish to raise this matter at a safety meeting. Please could you advise how to approach this?   A Safe Work Australia has outlined that all workers have a duty to take reasonable care of their own health and safety so that they do not adversely affect the health and safety of others. Workers must comply with any reasonable instruction, and cooperate with any reasonable policy or procedure relating to health and safety in the workplace. Safe Work Australia’s Code of Practice, Managing the Work Environment and Facilities, also sets out helpful guidelines for welfare and facilities dealing with personal hygiene. In raising these matters at a safety meeting, it is important to ensure that individual workers are not subjected to conduct that would make them feel uncomfortable, isolated or insecure, as this can be a form of victimisation and/or discrimination. At the same time, it is important to encourage all of your workers to implement good hygiene practices, as it helps to maintain a safe and healthy workplace. We also recommend you review chapter H3 Hygiene in the Health & Safety Handbook which you can access on a free, no-obligation trial.


WorkSafe Victoria prosecutes worker’s comp fraudster

September 2019

A worker who forged medical certificates to claim nearly $113,000 in workers’ compensation payments has been jailed for nine months. Andres Canepa Uranga had lodged a workers’ compensation claim for incapacity to work after he sustained an eye injury while working as a carpenter. Just 10 days after his claim, Mr Uranga started working as a painter. WorkSafe Victoria conducted an investigation Mr Uranga’s workers’ compensation claim after an independent medical expert approached his GP about a possible return to work, to then find out that his doctor had not seen him for 18 months. The following day, the police arrested the worker on an unrelated matter and found a number of certificates of capacity to work in his possession. Some of the certificates had numbers cut out of them which were applied to existing dates on others with sticky tape. Mr Uranga used the forged medical certificates to continue receiving workers’ compensation payments after his GP banned him for becoming aggressive and kicking in the GP’s front gate. WorkSafe Victoria said it was discovered that three certificates he submitted had been illegally altered. The worker pleaded guilty in Sunshine Magistrates’ Court to three counts of fraudulently obtaining compensation payments. He was sentenced to nine months’ jail and ordered to pay back the $122,975 he received in compensation payments, plus $1,000 costs. “Compensation is there to assist, and the vast majority of injured workers do the right thing,” WorkSafe Enforcement Group Director Paul Fowler said. “It was made clear here and is always the case that these payments are not to supplement income while working and those who try and cheat the system for their own benefit will be held to account.” Do you know what to do if you suspect a workers’ compensation claim is fraudulent? Find out from a qualified health and safety lawyer in chapter W1 Workers’ Compensation in the Health & Safety Handbook. Not a subscriber? You can access this information for free.


Your questions answered: Are employees covered by workers’ compensation for travel?

September 2019

Q Are employees covered by workers’ compensation for travel to and from work (regular business hours)? Are employees covered for work-related travel outside business hours, e.g. travel to or from the office on the weekend or to the airport to pick up a consultant?  <;/p> A Whether employees are covered for travel to and from work depends what state or territory the employee is travelling in. The ACT, the Northern Territory and Queensland will usually cover employees when they are travelling in this context. Generally, an employer will be liable for any work-related travel if that travel has been requested by the employer, or there is a substantial connection to work. If an employee is required, or directed, to make work-related trips (such as to the airport) outside of business hours, then the employee will be covered for this travel. Imagine having your very own in-house health and safety lawyers You do. When you subscribe to the Health & Safety Handbook you have access to free, unlimited support from the health and safety lawyers at the Health & Safety Helpdesk.


Your questions answered: What is the difference between first aid and medical treatment?

September 2019

Q When a worker presents at a medical facility for a work injury and they are given a one-time preventative medication tetanus injection or medication for the relief of pain and discomfort - I believe this will be classified as a first aid case. However, when the same patient is given a prescription for medication for the work injury - that is not one-time prevention and should be escalated in classification to medical treatment. Please can you confirm if this is correct? We are based in Queensland. A We can confirm the following: Medical treatment injury: Medical treatment is defined under the Queensland Work Health and Safety Act 2011 as treatment by a medical practitioner registered or licensed under a State or Territory law that provides for the registration or licensing of medical practitioners. In our view, the fact that the medical treatment you have described in the first scenario is preventative treatment rather than prescriptive treatment does not result in the treatment of a tetanus shot being considered as first aid. Any injury requiring treatment by a registered medical professional can be considered a medical treatment injury. First aid injury: We recommend reading chapter F1 First Aid in the Health & Safety Handbook for more guidance on first aid and first aid injuries in the workplace.


Second supervisor fined for setting apprentice on fire

September 2019

“It is not enough for a business to just have a 'no bullying' policy,” SafeWork SA Executive Director Martyn Campbell has warned employers. His comment comes in the wake a second bully’s conviction for a Category 1 breach under the South Australian Work Health and Safety Act 2012. Twenty-eight-year-old Luke Chenoweth was one of two supervisors at Tad-Mar Electrical who took part in a lunchtime ‘workplace prank’, where they squirted an 18-year-old apprentice with lighter fuel and set him alight. The other supervisor, Jeffrey Mark Rowe, was also prosecuted and fined earlier this year for his involvement in the incident. Mr Chenoweth pleaded guilty to exposing the worker to a risk of death or serious injury. He was fined $21,000 after receiving a 40 per cent discount for an early guilty plea. The reckless conduct offence carries a maximum penalty of $300,000 or five years’ jail. Bully blames poor workplace culture In the South Australian Employment Tribunal (SAET) hearing, Mr Chenoweth provided a report from a psychologist that stated Mr Chenoweth had been a victim of bullying himself at the company and that he “engaged in the conduct in part to protect himself from continuing to be bullied, in that if he engaged in similar conduct the focus was likely to be on someone else”. While SAET Deputy President Magistrate Stuart Cole accepted that Mr Chenoweth was “remorseful and contrite” and “had engaged in a ‘serious act of gross stupidity’ in the context of a poor work culture”, the Deputy President Magistrate found that Mr Chenoweth was the main protagonist in the “serious and unprovoked” incident. “In the course of doing that he chased [the apprentice], who was trying to get away from what must have been a frightening situation, and who was an apprentice with little if any control or influence over the defendant as a supervisor,” Deputy President Magistrate Cole said. “The potential for serious injury as a result of [Mr Chenoweth’s] conduct was very real.” Apprentice suffered unbridled bullying at work Deputy President Magistrate Cole heard that the apprentice had been bullied by Mr Chenoweth since August 2016. “[W]hilst the defendant is to be sentenced only for the charges brought against him, there was a history of bullying behaviour by [Mr Chenoweth] in relation to [the apprentice], and the conduct the subject of the charge cannot be treated as an exceptional one-off event,” Deputy President Magistrate Cole said. After the hearing, SafeWork SA Executive Director Martyn Campbell said that the apprentice had been verbally abused, had his tools hidden and was locked in containers when working at Tad-Mar Electrical. Employers must ‘live and breathe’ anti-bullying policies “Supervisors and other leaders have a responsibility to look after young workers, not physically abuse them in the name of fun or high jinks,” Mr Campbell said. “It is not enough for a business to just have a ‘No Bullying’ policy. “Executives, managers and supervisors must live and breathe that policy to ensure it is ingrained in the fabric of organisational culture. Each has a duty to look after the health and safety of all workers and especially young workers new to the workforce. “I would encourage every business to look at their own processes for how they manage bullying. If they fall short of the standard then they need to ask for assistance to make sure they are legally compliant and doing what is required to ensure worker health and safety.” Tad-Mar Electrical has also been charged over the incident and will face court in October. Do you know how to tackle and prevent bullying in your workplace? With the Health & Safety Handbook, expert legal guidance and support on workplace bullying can be found in chapter B1 Bullying. It is just one of 70-plus chapters in the Handbook that cover all areas of workplace health and safety. Find out more.


Your questions answered: What can we do if workers don’t disclose pre-existing medical conditions?

September 2019

Q We recently hired an employee who, on the pre-employment medical condition questionnaire, indicated they had no relevant pre-existing medical conditions. Subsequent events indicate that there are, in relation to the capacity of the person to perform the inherent requirements of the role. What can we do in this situation? A If the worker is unable to fulfil the inherent requirements of the role, this gives rise to a right to terminate the agreement. It may be preferable for you to focus on this rather than making allegations of misrepresentations in the pre-employment medical condition questionnaire. If you do make allegations of dishonesty, you should ensure that you have good evidence for doing so. You may consider seeking medical evidence about their capacity to support you. Tap into the expertise of some of Australia’s best health and safety lawyers For free. Exclusively when you subscribe to the Health & Safety Handbook.


ICAC report reveals ‘shocking’ behaviour in SA public sector

September 2019

South Australia’s Independent Commissioner Against Corruption, Bruce Lander QC, has recently published a second report from the ICAC Public Integrity Survey that was conducted last year. The qualitative report In Their Own Words reveals “sobering and in many instances shocking” stories from public sector workers in SA government organisations. “Survey participants from every agency spoke of perceived incidents of bullying and harassment, and nepotism and favouritism,” the report states. Bullying and harassment endemic in every organisation In the qualitative component of the 2018 survey, participants were asked whether they had personally encountered inappropriate conduct in the last five years and also how vulnerable they thought their workplaces were to inappropriate conduct. Participants from each agency mentioned numerous issues of bullying and harassment, often in tandem with nepotism. Among the issues reported were: sexism; ignoring bullying; managers asking workers for sex; victim blaming; and only friends of managers being promoted. A number of participants described how their exposure to inappropriate conduct had a negative impact on them. Statements included:
“I love my work but the poor treatment by my manager is impacting on my mental wellbeing.” “Mates of managers are put into management positions who are useless and cannot do that job. This makes the whole place a joke. No one will report this as it is not hard to work out who has complained.” “I reported the behaviour to management. Nobody cared. I chose not to renew my contract at that workplace.” “Experienced people are being marginalised, bullied and made redundant because they know more than their managers and are therefore viewed as a threat not an asset.” “The Chief Executive has created, promotes, participates in, perpetuates and encourages a toxic culture and environment based on favouritism, bullying, intimidation and harassment [redacted] Many people have and are still leaving the organisation as they are not able to do anything about this issue, many people who work here are currently mentally affected by the continuous and relentless bullying and harassment.” “Often bullying occurs in a ‘passive’ way which may not be obvious to others and could in fact be difficult to prove.”
Fear and anxiety about ‘speaking up’ While Mr Lander acknowledges that “a survey does not prove the truth of the comments made”, he said it does “provide evidence of the perceptions of those who have participated”. “Public officers spoke of fear and anxiety in reporting genuinely held suspicions of corruption or inappropriate conduct. This anxiety is perhaps justified, with participants describing public officers who ‘speak up’ as suffering kinds of victimisation such as losing or feeling forced to leave a job or the organisation,” the report states. “Others were seen as ‘trouble makers’ by their agency. Some participants cast doubt over the utility of reporting. It stands to reason that if nothing changes as a result of making a report or if certain individuals are seen as ‘protected’, then willingness to report will be low. “Participants also described experiencing other kinds of inappropriate conduct including bullying and harassment, favouritism, poor leadership and management, a failure to effectively address conduct issues, inappropriate storage and access of confidential information and a lack of confidence in human resource sections. “Some workplaces were described as or inferred to be ‘toxic’.” However, all responses weren’t bad, and the report notes “some participants, without prompting, described positive work cultures, strong integrity, appropriate integrity controls and processes for ongoing improvement in regards to promoting integrity”. What happens next? “All public officers are required and should feel supported to be able to speak up if they have genuine issues with conduct in public administration,” the report concludes. “The victimisation of those who speak up is not to be tolerated. “Agencies have an obligation to create an environment where staff are both free to report without reprisal and can be confident their reports will be handled appropriately. “Public officers are reminded that reports to the ICAC / OPI carry with them a series of protections. “Protections are also afforded under the Public Interest Disclosure Act 2018 which came into effect 1 July 2019. “The survey feedback should cause agencies to review their policies and procedures to ensure there are no ‘loopholes’ and that their policies and procedures are providing effective integrity controls.” How does your organisation deal with bullying or harassment complaints? If you are in any way not sure, you need to take a free, no-obligation trial of the Health & Safety Handbook now. Before it’s too late. Find out more.  


Your questions answered: Is a positive saliva test for drugs sufficient to instantly dismiss an employee?

September 2019

Q Currently, our drug testing procedure is as follows: 1. Initial drug testing by salvia at place of work or following a work-related incident/accident. 2. Confirmation required by urine testing at reputable testing agency. 3. If positive, as per our drug and alcohol policy, employee is subject to instant dismissal for serious misconduct. Our query is, are we able to terminate employment on the initial positive saliva test? A Generally, a saliva test is not adequate to confirm a positive drug test. There may be other factors, such as an employee’s appearance or behaviour that indicate they are under the influence of drugs or alcohol and may justify summary dismissal. However, you will need to ensure that your drug and alcohol policy permits you to summarily terminate a worker’s employment on this basis. Presently, you would be in breach of the terms of your current policy if you were to dismiss an employee without first requesting a urine test. Whatever process you follow, make sure it is legally compliant With the practical support from the lawyers at Holding Redlich, exclusively when you subscribe to the Health & Safety Handbook.


Workers’ compensation does not cover assistance-dog expenses

September 2019

In a recent Administrative Appeals Tribunal (AAT) hearing, a worker with post-traumatic stress disorder (PTSD) has been denied costs for the care and upkeep of a psychiatric assistance dog (mind dog). The ACT Fire Brigade worker developed PTSD and bruxism after attending a large factory fire in 2011. He then claimed for the costs of a mind dog in 2016 which Comcare (the ACT Government’s insurer at the time) rejected. Comcare determined that the dog did not qualify as medical treatment under the Commonwealth’s Safety, Rehabilitation and Compensation Act 1988 (SRC Act), nor was there any other area of the SRC Act “that could conceivably apply to the acquisition and upkeep of a mind dog”. The worker appealed. In the AAT hearing, the worker’s wife told the tribunal that the dog had originally been acquired as a pet. When it was discovered that the dog helped the worker with his anxiety, it was later trained as a mind dog. With the mind dog, the worker was able to regularly go to public places without suffering panic attacks or stress, which he was unable to previously. The worker submitted that under the SRC Act, the costs associated with his mind dog were a recoverable medical treatment expense, or alternatively an aid or appliance expense. The worker’s psychiatrist noted that mind dogs were “helpful with PTSD-related hyperarousal in shopping centres and crowds of people”. A lifestyle benefit, not medical treatment “The evidence before the present Tribunal regarding the medical or psychiatric effectiveness of assistance dogs was inconclusive,” AAT Deputy President Gary Humphries found. According to one doctor, the dog’s role “had not led to any significant improvement in [the worker’s] psychological well-being or his capacity to function at home or in the community”. “The dog was not translating into clinically meaningful improvement,” he said, and although there were “certain lifestyle benefits”, there was “no resolution of the illness” and “no serious amelioration of the symptomatology”. While another doctor who provided evidence disagreed, he did concede that the dog was not directly therapeutic to the worker, but rather helped the process of therapy which was already being implemented. Both doctors noted the weakness in the published research regarding the therapeutic benefits of assistance dogs. “All of this militates against the view that [the dog] was medical treatment,” Deputy President Humphries said. “[The dog] was, at best, an adjunct to such treatment. “Even if I were to accept the view of [the doctor] that [the dog] had conferred some practical benefits in the management of [the worker’s] PTSD, it is by no means clear that those benefits have been conferred as medical treatment, as opposed to general benefits relating to well-being that accrue to many dog owners. “The Tribunal takes official notice of the fact that many people derive comfort and fulfilment from their relationship with animals, dogs in particular. “Such relationships can be of particular benefit to a person during periods of distress. “Given the uncertain state of the clinical research on the therapeutic value of assistance dogs, real doubt must be entertained about whether the benefits to [the worker] from [the dog] rise any higher than those he would obtain from a dog which had not been designated or prepared as an assistance dog.” Dog is not an aid Deputy President Humphries found that the term ‘aid’ under the SRC Act could only apply to inanimate objects. “In order to accept the construction which [the worker] advances as finding that animals can be an aid, it would need to be shown on the balance of probabilities that a psychiatric assistance dog is a means or source of help or assistance,” he said. However, he found that only an “uncertain and vague evidential basis” had been put forward “to determine the extent to which dogs may aid people with psychiatric conditions such as PTSD”. Also, there was no provision in the SRC Act entitling the worker to the “cost of maintaining or sustaining an aid or appliance”. “The Tribunal notes that [the worker’s] claim is not for the cost of acquiring [the dog] but for sustaining him – special food, veterinary fees, grooming, etc.,” Deputy President Humphries said. “Even if [the dog] were considered an aid, none of the costs related to his care or upkeep would be recoverable… “[The SRC Act] does not contemplate the inclusion of animals as aids or appliances, since it makes no provision for their care and upkeep.” An ‘obvious lacuna’ in the SRC Act While Deputy President Humphries rejected the worker’s claim, he did emphasise the role dogs can play in helping injured workers. “It may seem strange that the Parliament has not seen fit to make provision, in the parts of this Act dealing with the treatment, support and rehabilitation of injured workers, for assistance animals,” he said. “Notwithstanding the conclusions the Tribunal has reached here with respect to psychiatric assistance dogs, it should not be doubted that animals can and do play a relevant role in that context – a seeing-eye dog for a blinded employee is an obvious example. “If, say, further research in the future polarises around the view that psychiatric assistance dogs do assist psychiatrically ill people to overcome the effects of their condition, and my interpretation of the Act as it now stands is correct, there would be an obvious lacuna in the Act’s scope.” Do you know what your workers can claim compensation for? Find out by reading chapter W1 Workers’ Compensation in the Health & Safety Handbook. Written in plain English by the lawyers at Holding Redlich, the Handbook provides comprehensive information and practical guidance in all areas of Australian health and safety law.


« Older Entries