Employment law case update
There have been a number of important case developments in the employment law space recently.
In this article, our employment and industrial relations team provide a helpful summary of two recent significant decisions:
Where an employer was found not liable for a mine workers alleged fatigue related crash; and
Where an employee received a $232,000 payout in the first successful age discrimination case.
The team also considers a case which has been brought by an employee who was dismissed for discussing her pay which will test new pay secrecy provisions brought in as a result of legislative changes in this area.
Case 1 - Employer found not liable for miners alleged fatigue related crash
Coalroc Contractors Pty Ltd v Matinca (No 2) [2023] NSWCA 127 (“Matinca”)
An employer has been found not liable for injuries sustained by a mine worker involved in an accident travelling home from work.
Background
The employee was working at a mine 260km from his home and working 12 hour shifts Friday to Sunday. He drove home after finishing his Sunday shift and was injured when his vehicle veered off the road and crashed into a tree. The employee claimed that the accident was caused by fatigue and he had no recollection of the accident.
Decision
The trial judge originally found the employer negligent but then the employer challenged this decision and was successful before the appeal court on the following grounds:
Fatigue was found as being not a “probable” cause of the accident (only one of many “possible” explanations for the employee’s “momentary inattention”); and
The employer did not owe a duty to require a travel plan be provided for approval and approve such a plan if appropriate (which the original trial judge said it had a duty to do). It was noted that it was “difficult to discern how the insistence on the provision of a travel plan which, it was accepted, could neither be enforced nor monitored, would amount to a reasonable precaution to save the employee from the risk of harm arising from driving while fatigued”; and
Factual causation was not established because the employee did not provide any evidence regarding what he would have included in a travel plan, whether he would have complied with the plan or whether compliance would have prevented the accident.
In relation to the final point above, the appeal court made some interesting comments, namely:
The appeal court stated that “significant subjective matters” tended against the employee either proposing or complying with a travel plan, particularly the employee’s “explicit evidence during cross-examination that he wished to drive home directly after the Sunday shift”; and
The appeal court did not accept a finding made by the original trial judge that a 20 to 30 minute rest break could have prevented the accident, finding “a decrease in risk is no more capable of proving negative causation … than an increase in risk is capable of proving causation positively”.
Differences to the case of Kerle v BM Alliance Coal Operations Pty Limited [2016] QSC 304 (“Kerle”)
Although a case from 2016, Kerle involved similar factual circumstances and therefore was considered by the appeal court in the case of Matinca.
In Kerle, the employer was in fact found liable for a fatigue induced car accident notwithstanding the employee had taken a 30 minute rest break two hours into his travel home. The appeal court said the outcome in Kerle demonstrated that such a break was “insufficient to offset the effects of fatigue in the circumstances of that case”.
The employee ended up being successful in Kerle because the court:
Was satisfied there was sufficient evidence that the employee’s accident was caused by fatigue; and
Found the content of the duty of care proposed by the employee (i.e. to provide training regarding fatigue and fatigue management) would more likely than not have prevented the accident.
It is worth noting that the appeal court in Matinca could not consider the sufficiency of the employer’s fatigue training (like was considered in Kerle) because the employee did not allege a breach of duty in that respect.
While the outcomes in these cases are different, there is one clear message – employers need to take fatigue management seriously (particularly where you have employees driving on a drive in/drive out arrangement). Fatigue management is essential to worker safety.
Case 2 - Employee receives $232,000 payout in first successful age discrimination case
Gutierrez v MUR Shipping Australia Pty Limited (No 2) [2023] FCA 567
An accountant has recently won a case against his employer for age discrimination, after it was found that he was forced to retire at the age of 65 despite being fit to work.
The Federal Circuit and Family Court of Australia found that the employer had breached the Age Discrimination Act by:
Moving the accountant to a fixed term contract due to his age after 25 years of full-time employment; and
Asking the accountant to train a new employee who would replace him (and who the accountant claimed he was “treated less favourably then”), even though the accountant had not said he would retire.
The case acts as an important reminder for employers that they cannot discriminate against employees based on their age. It also highlights an employer’s need to assess an employee’s fitness for work (namely their ability to perform the inherent requirements of their job in a safe manner) based on objective criteria (and considering whether any reasonable adjustments can be made to support them to continue working) rather than making assumptions based on age.
Case 3 - Employee dismissed for discussing her pay takes employer to court – decision not yet issued
New pay secrecy laws ban employers from prohibiting (or limiting) an employee’s right to disclose their remuneration or ask another person about their remuneration. These laws will now be tested by an employee taking her employer to court following being dismissed after she shared with other employees that she had negotiated a pay rise with her employer and back payment.
The employee’s dismissal email stated that she was dismissed for discussing these matters with other employees and said the owners of the employer were “extremely upset” with her actions and “total disregard for confidentiality”.
The case will be an important one to watch – we will keep you updated on the outcome of the matter if a decision is handed down (noting a confidential settlement agreement may be entered into between the parties prior).
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your particular circumstances