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Q2 - 2020 # Not the work place that is toxic but the uniforms are. # Employer's responsibility to avoid psychiatric injuries. # Misrepresentation by Union - near maximum penalty. .........................................................................................
Not the work place that is toxic but the uniforms that are. A group of Delta Air Lines employees is suing an American clothing company for providing uniforms that supposedly caused several workers to fall ill. More than 500 airline workers complained that retailer Lands’ End supplied them with apparel that exposed them to “unreasonable risks of physical harm,” including an “allergic and/or sensitization response” to the materials used. Bruce Maxwell, one of the lawyers handling the case, said the majority of the plaintiffs named in the lawsuit are flight attendants. However, his office also has the names of more than 500 additional Delta workers who complained about the uniforms. Some of the
chemicals purportedly detected in the clothing included antimony, bromine, chromium, fluorine, formaldehyde and
mercury. Meanwhile across town, at Goldman Sachs, an internal memo said it would allow staff to choose what they want to wear to work as long as they “exercise good judgment” in their fashion choices. The investment bank cited the “changing nature of workplaces generally in favour of a more casual environment” as the reason for the move. Would ‘good judgement’ include stressed jeans?
Employer's responsibility to avoid psychiatric injuries In this case the plaintiff commenced proceedings against her employer, The Age Company Limited (The Age), for breaching its duty of care by failing to implement measures to identify and avoid psychiatric injuries caused by exposure to traumatic events in the course of her employment. The plaintiff was employed by The Age as a reporter. Between 2003 and 2009, she worked as a crime reporter, attending numerous traumatic crime scenes, which included more than 30 murders. During her employment as a crime reporter, the plaintiff also reported on a number of underworld killings. She reported that the work caused her to feel awful as well as threatened. In 2009, the plaintiff reported on the murder of Darcey Freeman by her father and witnessed as emergency services attempted to perform CPR on the deceased child. Upon returning from the scene, the plaintiff said 'I'm done, I can't do this anymore. I've had enough of death and destruction'.
The Trial Judge accepted that the plaintiff suffered from PTSD as a result of her work. The Trial Judge found that the risk of psychiatric injury to the plaintiff was substantial and foreseeable. It was found that The Age breached its duty by failing to (1) institute training of staff in a peer support program in order that signs of psychiatric injury could be identified and dealt with (2) provide adequate support in the form of immediate access to an Employee Assistance Program (EAP) (3) encourage a culture of reporting psychiatric injuries rather than repression of symptoms (4) consider rotating employees from duties involving contact with traumatic events and (5) prevent the plaintiff's transfer to court reporting despite her voicing symptoms and reluctance. The Appeal The Age appealed the Trial Judge's decision on the bases of duty of care and causation, arguing that the Trial Judge ought to have given proper regard to the employer's need to respect employees' autonomy and privacy, and the Trial Judge did not give adequate reasons as to his conclusion that the breach of duty caused the injury. The Court was satisfied that a breach of duty did occur when the plaintiff's position changed from sports reporting to court reporting in 2010, as The Age was aware of her symptoms and her reluctance. The 2010 breach of duty was therefore responsible for the deterioration in the plaintiff's already entrenched psychiatric injury. As the Trial Judge assessed damages based on a breach from 2009 rather than 2010, the appeal was partially granted and referred back to the Trial Judge to reassess damages accordingly.
Another strike against the CFMMEU. The Federal Court in Victoria has penalised the CFMMEU and its senior official Alex Tadic a total of $59,500 for abusing a Victorian WorkSafe official. The case related to the 2014 construction of the Castlemaine Police Station. The CFMMEU was penalised $51,000 – 100 per cent of the maximum available penalty. Mr Tadic was penalised $8,500 – 83 per cent of the maximum available penalty. The Court found Mr Tadic intimidated and abused a WorkSafe Inspector while he was attempting to perform his duties investigating the health and safety of workers. The Building and Construction Commission (ABCC) successfully appealed an earlier Federal Court decision dismissing its case against Mr Tadic and the CFMMEU. The Federal Court today stated: “The permit Mr Tadic had to enter the site was not a license to bully, intimidate or threaten [the WorkSafe inspector], or anyone else for that matter… “In my view Mr Tadic abused that power by his conduct towards [the WorkSafe inspector]. Such conduct would not be tolerated in a workplace as between employees or as between an employer and employee. “Mr Tadic’s behaviour, by any measure, amounted to bullying and intimidation." The Federal Court also found that Mr Tadic’s unlawful conduct was “within or close to the worst category of cases for contravention of… the FW Act.” “Intimidating and abusive behaviour by a Union official permitted to enter a site for the vital purpose of protecting the health and safety of workers on the site must be condemned in the strongest terms." This judgment brings the CFMMEU’s total penalties to $9.13 million as a result of Australian ABCC action since 2 December 2016.
Misrepresentation by Union On 7 March 2019, the Federal Circuit Court imposed total penalties of $55,080 against the CFMMEU and its site delegate after he pressured a landscaper to join the union despite only being contracted to work on a Grand Central Shopping Centre site in Toowoomba for a couple of days. The CFMMEU was penalised $48,600 which is 90 per cent of the maximum fine. The CFMMEU’s site delegate, Peter D’Arcy was penalised $6,480. Mr D’Arcy admitted that he made a reckless misrepresentation to the worker that he had to join the union prior to a site induction at the Grand Central Shopping Centre site on 27 March 2017. The Court heard Mr D’Arcy entered the induction room on site and questioned workers on whether they were union members. When the landscaper told Mr D’Arcy he was no longer in the union, Mr D’Arcy said he would “have to re-join the [Union]”. The following exchange then took place: Worker: “what if I don’t join the Union?” Mr D’Arcy: “That’s fine, but you can’t work here, you’ll have to go and work somewhere else.” When another worker heard this exchange and said words to the effect “Isn’t that illegal?”, Mr D’Arcy said “if you want to work here then you have to be part of the union”. In response to a question from the first worker about how much the CFMMEU membership would cost, Mr D’Arcy said it would be around $500. The following exchange then occurred:
Worker: “I’m only up here for a couple of days. So I’m basically coming up here to work for
nothing.” In his judgment Judge Egan said Mr D’Arcy’s conduct had the effect of promoting a “closed union shop”. He also said Mr D’Arcy’s behaviour had “effectively, and practically, an element of coercion.” “the worker would effectively be working to pay the union its dues rather than working for his own monetary gain. After paying the union fee, the worker would have had nothing to show for his having provided his labour.” “the conduct on the part of [Mr D’Arcy], when told by the worker that he would be working for nothing if he signed both forms [union membership and payroll deduction forms], was one of indifference to the plight of the worker.”
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