Unfair dismissal claims often centre on the harsh, unjust or unreasonable nature of a dismissal relating to an employee’s conduct or performance at work. It is less common that claims of unfair dismissal arise due to an absence from work, where an employee is absent from work due to a workplace injury.
This was, however, the situation in the recent case of Siminsky v Gunlake Concrete NSW Pty Ltd T/A Gunlake Concrete NSW Pty Ltd  FWC 2429 in which the Fair Work Commission (FWC) considered an employee’s claim that he had been unfairly dismissed while incapacitated by a psychological injury sustained and exacerbated in his workplace, all while intending to lodge a workplace injury compensation claim.
Between May 2017 and August 2018, the employee worked for the employer as a concrete truck driver.
On 2 May 2018, the employee alleged that he had been verbally abused by his supervisor, who had threatened to report him to the General Manager of the business. When the employee informed his supervisor that he intended to make a harassment complaint against him, his supervisor allegedly mocked him.
An investigation was subsequently held, and at a meeting two days later the employee provided the General Manager with a medical certificate stating he was unfit for work the next day because he was suffering from a nervous condition resulting directly from the incident with his supervisor on 2 May 2018.
In mid-June 2018, subsequent discussions were had between the employee, his supervisor and the General Manager regarding the employee’s unsatisfactory performance at work.
The employee requested a week of annual leave, which was approved. After visiting his doctor regarding his nervous condition, he subsequently informed the General Manager that his period of leave was no longer annual leave but sick leave, and alleged that he was being victimised by management stemming from his complaint on 2 May 2018. This period of sick leave continued for some time.
While the employee was on sick leave, an internal investigation commenced in response to the employee’s complaints found merit in the concerns regarding the employee’s poor work performance but did not find the employee’s complaint of victimisation to be substantiated.
The employee subsequently advised the General Manager that his best option for recovery would be to bring his employment to an end, and that he would consider a settlement offer.
In August 2018, the Respondent offered the employee $15,000 in settlement in exchange for him signing a deed of release. This was declined by the employee on 29 August 2018, who then advised his employer of his intention to lodge a worker’s compensation claim, noting that he had a doctor’s appointment for this purpose in 5 days’ time.
On 30 August 2018, before the employee attended the doctor’s appointment, the employer terminated the employee’s employment on the basis of the employee’s apparent inability to return to work, that it was not reasonably practical to provide the employee with alternate employment, and that it was not possible to modify the employee’s role to accommodate his medical condition.
The employee’s workers compensation claim was subsequently accepted by the insurer on 27 September 2018.
The employer disputed that there had been any breach of workers compensation legislation, as the employee’s employment was terminated prior to him lodging a claim. This was accepted by the FWC.
The FWC also accepted the position at law that an employee’s ongoing capacity arising from illness or injury can constitute a valid reason for termination of employment,1 but noted that in capacity related dismissal cases this requires the FWC to make a finding as to whether, at the time of the dismissal, the employee suffered from the alleged incapacity.2
Applying this position to the facts of the case, the FWC found this was not a situation where an employer had failed to accommodate an employee fit to work, either in an alternative or modified role.
Rather, the employee was unfit to perform any work at all for the employer and there was no indication of his ability to return to work in the near future – on this basis, a valid reason for dismissal existed.
The FWC also noted the employer’s concession that its internal human resources processes could have been conducted differently and that the employer did not possess any dedicated human resource expertise.
Given this, and that the employer had attempted to propose an amicable resolution to end the employment relationship, these factors were not considered sufficiently persuasive to establish that the manner of the employee’s dismissal was “harsh, unjust or unreasonable” – a requirement to establish that a dismissal was unfair.3
Interestingly in this case, the employer’s decision to dismiss the employee related solely to his being unfit to return to work in the foreseeable future in any capacity (i.e. unable to perform the inherent requirements of the role even with adjustments), notwithstanding that the employee’s grievances regarding his victimisation at work led to his workplace injury claim in the first place.
Employers and human resources professionals should take note of the FWC’s reaffirmation of the principle that, where an injured employer has no prospect of returning to work in an alternative or modified role, this may offer a valid ground for termination.
Notwithstanding this, caution should still be given to terminating the employment of an injured employee too soon – the absence of a valid reason for dismissal does not mean that a dismissal cannot still be “harsh, unjust or unreasonable” within the meaning of the Fair Work Act. There are also provisions within the Fair Work Act that preclude employers from terminating employees because they are absent due to a temporary absence due to illness or injury. As such, it is always wise to seek advice from us before considering terminating an employee who is absent due to illness or injury.
Want to find out more? At 8am on 9 May 2019, McCabes’s Employment team and Workplace Risk and Compensation team are holding a joint breakfast seminar on an employer’s obligations to an employee who has made a workers compensation claim.
If you have any questions, would like to attend the seminar or know someone in your network who might, please let us know via email at [email protected] or give us a call on +61 8252 3560.
1 Smith and Kimball v Moore Paragon Australia Ltd  PR942856 at .
2 CSL Limited t/a CSL Behring v Chris Papaioannou  FWCFB 1005 at .
3 Fair Work Act 2009 (Cth) s 385.
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 , 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 , 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 : "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.
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  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.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.