COVID-19, Employment

5 key lessons for employers with a global workforce

3 September, 2017

With the increased risk from the highly infectious Delta COVID-19 variant within the community and workplaces, a hot topic for employers is whether they can direct their employees to have the COVID-19 vaccine. And if they refuse, can they terminate or restrict their employees from entering the workplace.

Employers have an overarching legal obligation to keep their workplaces safe and to eliminate or minimise so far as ‘reasonably practicable’ the risk of exposure to COVID-19. This obligation to ensure the health and safety for all workers needs to be balanced however against the workplace rights of individuals. With the risk of exposure to COVID-19 increasing in recent months in Australia, and vaccinations being key to NSW and Victoria moving out of lockdown, this balancing act needs regular reassessment.

There is increasing guidance as to the circumstances in which an employer’s right to direct its employees to be vaccinated could be considered reasonable. In recent months, the Fair Work Ombudsman (FWO), SafeWork Australia and the Australian Human Rights Commission (AHRC) have issued useful guidance for employers in navigating this minefield, which we review below.

This guidance reinforces that whether mandatory vaccinations are a reasonably practicable control measure to manage the risk of COVID-19 is dependent on the particular circumstances of the individual workplace, taking into account obligations under safety, anti-discrimination and privacy laws.

What is “reasonable” will continue to evolve and will depend on the public health situation at a given time. Until very recently, the prevailing view has been that it would only be lawful and reasonable for employers operating in high-risk settings such as hotel quarantine and aged care to mandate vaccinations. However, given the highly transmissible nature of the Delta variant, higher rates of COVID-19 circulating in the community, and the increased availability of the vaccine, in our view, mandatory vaccination policies will increasingly be seen as reasonable beyond the traditional high risk settings, including for example, in other areas of where community transmission of the virus poses a significant risk such as telecommunications, transport, logistics, manufacturing and retail.

Where a mandatory vaccination policy is not presently appropriate or necessary however, employers can consider measures to support and encourage employees to get vaccinated, such as by offering time off to receive the vaccine, sick leave if they feel unwell following it, and other incentives such as gift vouchers and rewards. Employers should also consult with employees to better understand what proportion of employees are currently vaccinated, and their appetite for a mandate. Ideally before a mandatory vaccination policy is introduced, employees will have been given every opportunity to be vaccinated, they will have been consulted, and will understand the justification for such a policy.

The decision making process in determining whether to implement a mandatory COVID-19 vaccination policy will likely be a very complex for employers, and we recommend obtaining legal advice specific to your circumstances. Our team can assist with advice on:

a. The development of a workplace policy in relation to COVID-19 vaccinations,

b. Ensuring compliance with consultation obligations under Work, Health and Safety law, and any applicable modern award, enterprise agreements, or employment contracts;

c. Ensuring that any COVID-19 vaccination workplace policy is compliant with anti-discrimination law;

d. Ensuring compliance with privacy laws if health information (including evidence of vaccination) will be collected from employees;

e. Reviewing employment contracts and enterprise agreements to assess whether they contain any terms with respect to vaccinations, and drafting any contract variations required;

f. Determining a process for managing refusals, including the potential consequences for employees who refuse to comply with a vaccination policy; and

g. identifying alternatives methods for managing COVID-19 risks in the absence of, or as a pre-cursor to, adopting a mandatory vaccination policy.

Mandatory Vaccination Guidance material

Recently, the FWO has released guidance to employers about the factors that may justify a mandatory vaccination policy. Such guidance material is likely to evolve having regard to rising infections in the community and greater access to vaccinations.

The advice from the Fair Work Ombudsman

In August 2021, the FWO updated its position with respect to mandatory vaccinations, which had previously been that that “the overwhelming majority of employers should assume that they can’t require their employees to be vaccinated against coronavirus.”

The FWO’s updated advice now recognises situations in which an employer’s direction to employees to be vaccinated is likely to be reasonable. The FWO’s advice provides that employers can require their employees to be vaccinated where:

a specific law (such as a state or territory public health order) requires an employee to be vaccinated; or
the requirement is permitted by an enterprise agreement, other registered agreement or employment contract; or
it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated, which is assessed on a case-by-case basis

In recent weeks we have seen an increase in the health orders mandating vaccination for specific employers, for example, authorised workers leaving an area of concern for work, early education and care facility workers and disability support workers who live or work in an area of concern, as well as recent announcements regarding forthcoming mandates for NSW health department employees and NSW teaching staff.

Most employers however, in the absence of public health orders, will need to assess on a “case by case” basis if a direction requiring their employees to be vaccinated would be reasonable. The FWO advises to take the following into consideration:

the nature of each workplace (for example, the extent to which employees need to work in public facing roles, whether social distancing is possible and whether the business is providing an essential service);
the extent of community transmission of COVID-19 in the location where the direction is to be given, including the risk of transmission of the Delta variant among employees, customers or other members of the community;
work health and safety obligations;
each employee’s circumstances, including their duties and the risks associated with their work;
whether employees have a legitimate reason for not being vaccinated (for example, a medical reason); and
vaccine availability.

The FWO has also set out a guide whereby it distinguishes between 4 different groups of workers based upon the level of risk of exposure for employees or the vulnerable members of the community with whom they work:

Tier	Description	FWO advice
1	Work where employees are required to interact with people with an increased risk of being infected with coronavirus e.g. hotel quarantine and border control	An employer’s direction to employees performing Tier 1 or Tier 2 work is more likely to be reasonable, given the increased risk of employees being infected with coronavirus, or giving coronavirus to a person who is particularly vulnerable to the health impacts of coronavirus.
2	Work where employees are required to have close contact with people who are particularly vulnerable to the health impacts of coronavirus, e.g. health care and aged care workers
3	Work where interaction or likely interaction between employees and other people such as customers, other employees or the public in the normal course of employment, e.g. stores providing essential goods and services.	For employees performing Tier 3 work: where no community transmission has occurred for some time in the area where the employer is located, a mandate in most cases less likely to be reasonable where community transmission is occurring in an area, and the workplace needs to remain open despite a lockdown, a direction to employees to receive a vaccination is more likely to be reasonable.
4	Work where employees have minimal face-to-face interaction as part of their normal employment duties, e.g. where they are working from home.	An employer’s direction to employees performing Tier 4 work is unlikely to be reasonable, given the limited risk of transmission of the coronavirus.

If an employee refuses an employer’s direction to get vaccinated, the FWO’s guidance provides that an employer may be able to take disciplinary action, including termination of employment, if the employee’s refusal is in breach of:

a specific law, or
a lawful and reasonable direction requiring vaccination.

FWO recommends however, that prior to taking any disciplinary action, the employer should enquire as to whether there is a legitimate reason for not being vaccinated (for example, the employee has an existing medical condition that means vaccination is not recommended for the employee). The employee and their employer should also consider whether there are any other options available instead of vaccination.

If however, after a review of the individual facts and circumstances, disciplinary action might be warranted for a failure to follow the employer’s lawful and reasonable direction that employees be vaccinated. Employers should make sure that they follow a fair process and have a valid reason for termination, or they may breach unfair dismissal or adverse action laws under the Fair Work Act 2009. We recommend that employers obtain legal advice prior to proceeding with any disciplinary action, in order to minimise the risks of termination and discrimination related claims and the possible reputational issues that may follow.

The advice from the AHRC

The Australian Human Rights Commission (AHRC) advises that if there is no specific law requiring that a person be vaccinated, employers should be cautious about imposing mandatory COVID-19 vaccination policies or conditions on staff. It notes that a strict rule or condition that mandates COVID-19 vaccinations for all staff, including people with certain disabilities, medical conditions or who are pregnant, may engage the ‘indirect discrimination’ provisions in Sex Discrimination Act 1984 (Cth) (SDA), the Disability Discrimination Act 1992 (Cth) (DDA) and the Age Discrimination Act 2004 (Cth) (ADA). Indirect discrimination occurs when a person is required to comply with a general requirement or condition, such as mandatory COVID-19 vaccinations, and they are unable to do so because of a protected attribute, such as disability or age, and it has the effect of causing disadvantage to them.

It is a defence to a claim of indirect discrimination however if the employer can demonstrate that a condition or requirement is “reasonable” in the circumstances, which will likely to be highly fact dependent, considering the workplace and the employee’s individual circumstances. One such consideration might be whether there are any alternative methods that might reasonably achieve the employer’s objective without recourse to the mandatory COVID-19 vaccine requirement, such as:

testing regimes;
remote work;
physical distancing; or
personal protective equipment.

The AHRC also recognises that in responding to a complaint of disability discrimination, an employer may seek to rely upon the defence of ‘the inherent requirements’ of the role. Depending on the circumstances of the case, it might be an ‘inherent requirement’ of a particular role that a person be vaccinated against COVID-19.

For example, in the decision concerning the influenza vaccine, Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, the dismissal of a receptionist working in an aged care residential facility refused to comply with a mandatory vaccination policy, was found to be fair, because vaccination against the flu was an inherent requirement of her role. The employer was able to rely upon the NSW COVID-19 directions in force at that time which prohibited persons entering an aged care facility without an up-to-date influenza vaccine. This means the employee could not lawfully enter her place of work unless vaccinated and therefore could not perform her role.

The advice from SafeWork Australia

SafeWork Australia’s position with respect to mandatory vaccinations is that “It is unlikely that a requirement for workers to be vaccinated will be reasonably practicable,” because, for example:

public health experts have not recommended a vaccine be made mandatory in a number of industries
there may not yet be a vaccine available for workers, or
some workers may have medical reasons why they cannot be vaccinated.

The guidance of SafeWork Australia to employers is that they must do all that is reasonably practicable to minimise this risk of COVID-19, and vaccination should be considered as one way to do so “in the context of a range of COVID-19 control measures“. Such COVID-19 control measures are said to include physical distancing, good hygiene and regular cleaning and maintenance and ensuring workers do not attend work if they are unwell.

We note however that SafeWork Australia’s guidance was published in April 2021. A lot has changed since that time, including significantly greater supply of vaccines, and a much higher risk of COVID-19 for workers in NSW, Canberra and Victoria, who are unable to work from home. It may very well be that, as vaccination targets are reached, and NSW and Victoria move to lift lockdown restrictions whilst COVID-19 is transmitting in the community, that SafeWork Australia moves from its position that mandatory vaccinations are unlikely to be reasonably practicable to a position that promotes the control measure of vaccinations above the more traditional control measures of physical distancing, hygiene and cleaning.

SafeWork Australia does go on to provide advice with respect to undertaking a risk assessment to assist in determining whether employers should require its workers to be vaccinated, with reference to the following factors:

Will workers be exposed to the risk of infection as part of their work?
Will workers work with people who would be vulnerable to severe disease if they contract COVID-19?
What is the likelihood that COVID-19 could spread in the workplace?
Do your workers interact with large numbers of other people in the course of their work that could contribute to a ‘super-spreading’ event if your workers contract COVID-19?
What other control measures are available and in place in your workplace? Do those control measures already minimise the risk of infection, so far as is reasonably practicable?
Would a requirement to be vaccinated be unlawful in the circumstances? For example, would it discriminate against a class of employees?

Next Steps for Employers

Whether to implement a mandatory COVID-19 vaccination policy will likely be a very complex decision for employers and it is important to recognise that, the advice from FWO, SafeWork Australia and AHRC is guidance only.

As this area of law develops, we recommend that employers:

Consider the guidelines of FWO, AHRC and Safe Work if your business is contemplating issuing a direction to employees to be vaccinated, to assist in determining the appropriateness of such a mandate.
Consider your consultation obligations, both under health and safety laws, and under any applicable award, enterprise agreement or employment contract.
Consider if a staff survey might be a useful tool to gauge the likely support or resistance from employees to a mandatory vaccination policy, and to understand current vaccination levels within your workforce.
Prior to any mandatory vaccination policy, in the absence of any health order, consider encouraging voluntary vaccinations, through the provision of special leave or other incentives.
If mandating vaccines, consider what allowance might be made for employees who have genuine medical exemptions, or any other reasonable grounds for refusing.
Consider the reasonableness of the terms of the direction that employees be vaccinated, for example, a direction requiring all employees to be vaccinated immediately may not be reasonable given supply issues.
Prior to imposing any disciplinary actions for a refusal to comply, provide procedural fairness, including consider the views and circumstances of any employees who refuse the direction given, and explore all reasonable alternatives to dismissal such as allowing the employee to work from home or on alternative duties.
Obtain legal advice. If you have any uncertainty about whether mandating vaccination will be considered a “lawful and reasonable” direction in your workplace, we recommend obtaining legal advice specific to your circumstances.

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Litigation and Dispute Resolution

Canadian Court elevates thumbs-up emoji to signature status

In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph [18], Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph [36], Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph [63]: "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.

Published by Foez Dewan

29 August, 2023

Government

Venues NSW ats Kerri Kane: Venues NSW successful in overturning a District Court decision

The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane [2023] NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.

Published by Leighton Hawkes

18 August, 2023