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Q3 - 2019 Teacher's dismissal could not be discriminatory on the basis of the employer's religion or belief but was discriminatory on the ground of sex. UK. Direct discrimination can occur when someone is treated less favourably because of religion or belief. Slip on a grape - employer not liable Fine for ignoring prohibition and improvement notices Extra Curricular activity earns dismissal. Cover up at scene of an accident.
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Teacher's dismissal could not be discriminatory on the basis of the employer's religion or belief but was discriminatory on the ground of sex. UK. Case details: Gan Menachem Hendon Ltd v De Groen Ms de Groen was a teacher at an ultra-orthodox Jewish nursery. She attended a nursery social event with her boyfriend who mentioned to one of the directors of the nursery that they lived together. Following this, the headteacher and the managing director of the nursery met with Ms de Groen in the staffroom without giving notice of the meeting. Ms de Groen was asked to confirm (even if it was not true) that she did not live with her boyfriend so that they could inform concerned parents that this was the case. The headteacher and managing director expressed their views at this meeting that co-habiting before marriage was wrong, that Ms de Groen should consider counselling if she had problems with the idea of marriage and that, at the age of 23, time was passing for her to have children. Ms de Groen refused to lie about her private life and suggested that she could bring a claim because of the way she had been treated. There followed a disciplinary process which led to Ms de Groen's dismissal on the basis that she had contravened the culture, ethos and religious beliefs of the nursery and had damaged the nursery's reputation (risking financial loss to the nursery because of parental reaction). Ms de Groen brought a number of claims, including direct discrimination, indirect discrimination and harassment on the grounds of both sex and religion or belief. An employment tribunal upheld all of her claims. On appeal, the Employment Appeal Tribunal (EAT) disagreed with the tribunal's conclusions on religion or belief discrimination. In particular, it noted that the tribunal had determined that the nursery had discriminated against the claimant on the basis of its own religious beliefs. It had not made sufficient findings from which it could decide that the claimant had been less favourably treated because of a lack of religious belief. The EAT made clear, following the Ashers Baking case, that the religious belief of the alleged discriminator cannot found a claim for religion or belief discrimination. It must be the religion, belief or lack of religion or belief of someone else which is the reason for the less favourable treatment. The EAT agreed with the tribunal's finding that Ms de Groen had been directly discriminated against and harassed in relation to her sex.
Ashers Baking Case Direct discrimination can occur when someone is treated less favourably because of religion or belief. A lack of religion or belief is also a protected characteristic. The religion or beliefs of the alleged discriminator are not relevant. The key question is, was the belief or lack of belief of someone the other than discriminator a reason for the less favourable treatment? This was one of the key points made by the Supreme Court in the recent case of Lee v Ashers Baking Co Ltd [2018] UKSC 49. In that case, a bakery's refusal to prepare a cake with the slogan "support gay marriage" was held not to be discriminatory on the grounds of religious belief because the belief in question was that of the bakery and not the customer (or someone else).
Slip on a grape - employer not liable In the recent decision of Deans v Maryborough Christian Education Foundation Ltd [2019] QCA 75, the Queensland Court of Appeal (QCA) upheld a finding that the employer was not liable for the injuries sustained by an employee as a result of slipping on a grape in the employer’s premises. The decision confirms that, where there is a foreseeable but insignificant risk of injury, it is not incumbent upon employers to take every conceivable measure to avoid that risk. In this case, the appellant was a school teacher who sustained injuries to her left knee after slipping on a grape when walking in a foyer area between classrooms. The appellant alleged that the grape had been dropped by a student during a morning fruit break and that the employer ought to have had a system of inspection and cleaning in place during fruit breaks. The employer led evidence that no similar incidents had occurred in the five years since morning fruit breaks had been introduced and that an appropriate system of work was in place with regard to cleaning the school grounds. The Queensland District Court dismissed the claim and ruled that: · the risk of an employee slipping on a piece of fruit and sustaining an injury was not foreseeable; · the risk was insignificant, in circumstances where thousands of people had traversed the foyer during the fruit break in the five years before the incident and there had been no prior similar incidents; · the employer did not breach its duty of care to the plaintiff; and · it would not have been reasonable for the employer to abolish the fruit break due to the benefits that such breaks provided to students.
Fine for ignoring prohibition and improvment notices
The NSW Downing Centre Local Court has recently issued record-high fines to an employer entity for ignoring a series of improvement and prohibition notices, despite the fact that no one was injured by the company’s inaction. Between February 2016 and June 2017, PIA Constructions and Engineering Pty Ltd (PIA) received five prohibition notices and four improvement notices while completing construction works in a housing estate. The notices were issued for various unsafe working methods which potentially placed workers and the public at risk of injury, slips, trips and falls, including:
These prohibition and improvement notices were ignored by both PIA and one of its directors. PIA pleaded guilty to multiple offences under sections 19, 20 and 33 of the Work Health and Safety Act 2011 (NSW) and was fined a total $210,000. A director of PIA was also personally fined a total of $42,500 for breaching sections 27 and 33.
Extra Curricular activity earns dismissal May 2019 A recent decision of the Fair Work Commission inMr Joshua Brewer v St Columba College Munno Para Inc T/A St Columba College[2018] FWC 7620, provides some lessons for an employees extra curricular activity The allegations and subsequent investigation by the school concerned the conduct of a teacher towards a 16-year-old female student. The teacher had been employed at the school for approximately seven years and had taught the student in 2016. Previous allegations had also been made against the teacher in 2016 but were unable to be substantiated. The allegations in the present case, were as follows: In the first three months of 2018, the teacher had gone out of his way to frequently attend the Woolworths that the student worked at on Sundays. When at the Woolworths, he would commonly seek to be served at the student’s checkout rather than at another. The teacher went as far as asking when the student would be on duty. The teacher denied making any comments about being a sugar daddy, or that he offered to pay the student or mentioned drinking wine with her. The Commission carefully considered the evidence that had been provided by all parties in some detail and found that there were substantial factual discrepancies between the evidence of the teacher and the student. However, the Commission preferred the evidence of the student as it was presented with less evasion and was more credible, more consistent with objectively established and uncontested facts and was more plausible having regard to the evidence as a whole, including contemporaneous documentary material. The Commission also made a specific finding that the teacher had said to the student that he could be her sugar daddy. Having substantiated the student’s allegations, the Commission held that they were a valid reason for Mr Brewer’s dismissal, finding as follows: Whilst the line between social discussion and discussion of schooling matters between a teacher and student may not be black and white, Mr Brewer crossed that line in discussing his marriage, his wife, his desire to be rich and be elsewhere enjoying life rather than working at the school and passing critical observations about [the student]’s boyfriend. This is particularly so given that Mr Brewer had been previously cautioned that comments by him to students were capable of being misinterpreted. The Commissioner also noted that ‘even on Mr Brewer’s version of events he was dismissed for a valid reason in that he engaged in conversation that was a breach of his professional duty’.
More:-
Cover up at scene of an accident May 2019 An excavator operator accused of killing a man after a piece of machinery fell and hit him in the head at a worksite, "panicked" and deliberately tampered with the scene to cover up the truth, a court has heard. Neil Edward Norris pleaded not guilty to manslaughter at the beginning of his Supreme Court trial in Brisbane. Peter Tullett, who was a mechanical fitter, suffered fatal head injuries at a Springfield Lakes construction site in April 2017 and later died in hospital. The prosecution claimed Mr Norris had not attached a safety pin to the excavator that resulted in 1.2 tonne shears detaching and striking Mr Tullett in the head. In his opening address, prosecutor Philip McCarthy said Mr Norris quickly fixed the machinery before anyone could notice. "Neil Norris determined to deliberately lie about how the incident happened from the outset," Mr McCarthy said. "He told lies to the workmates who had attended to help Peter … he told lies to the first police officers … he told lies to the inspector from Workplace Health and Safety [WHS]. The court heard Mr Norris originally told investigators at the scene that Mr Tullett was on top of a nearby chipper and the pair was trying to remove a heavy guard cover that suddenly released and hit him. Jurors were told Mr Norris confided in a colleague a few weeks after the incident and told her the shears had come off and the safety pin was put back in afterwards. More:- https://www.abc.net.au/news/2019-05-13/neil-norris-workplace-death-peter-tullett-qld/11107544
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