COVID-19, Employment

2019 National Minimum Wage Increase

31 May, 2019

Can an employer decide to make an influenza (or COVID-19) vaccination an inherent requirement of the role and if so, is this a lawful and reasonable direction?

Protecting the health and safety of clients, colleagues and the community involves change. Individual behaviours often need to change in order to make positive improvements in the community or the workplace.

The challenges that COVID-19 presented in 2020 required substantial changes to individual behaviours. We all had to adopt new behaviours around “social distancing”, isolation processes, face-mask etiquette and correct hand sanitation practices (to name a few!).

In 2021 the challenge of change will be around vaccinations (for both influenza and COVID-19) and the case law is starting to develop in this area.

Childcare Sector

In 2020, childcare provider Goodstart Early Learning Centre decided it would make influenza vaccinations for all employees mandatory and issued a direction to all employees requiring them to be vaccinated by 29 May 2020. The direction provided a process by which employees with medical reasons for not being vaccinated could seek an exemption. Goodstart felt their policy was necessary to meet its duty of care requirements with respect to protecting children they cared for. Exemptions were provided for staff with health or medical conditions.

An employee, Ms Arnold objected to being vaccinated on grounds which did not include a medical or health related issue. Ms Arnold was subsequently dismissed on the basis that she had refused to comply with a lawful and reasonable direction.

Ultimately the case was dismissed on a jurisdictional ground however not before Deputy President Asbury noted the childcare business had a vaccination policy that was:

“…lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason”.

Therefore, the Childcare Centre’s policy was:

“… necessary to ensure that it meets its duty of care with respect to the children in its care, while balancing the needs of its employees who may have reasonable grounds to refuse to be vaccinated involving the circumstances of their health and/or medical conditions”.

“It is also equally arguable that the employee [Ms Arnold] has unreasonably refused to comply with a lawful and reasonable direction which is necessary for her to comply with the inherent requirements of her position…” – Arnold v Goodstart Early Learning Limited [2020] FWC 6083, 18 November 2020 at [32].

Aged Care Sector

In April 2020, Ozcare a residential aged care provider, in an attempt to protect clients and help stop the spread of COVID-19, updated their Employee Immunisation Policy to make influenza vaccinations mandatory for all employees working in residential aged care facilities and all community care services.

For 10 years previously, 64-year-old Care Assistant Ms Maria Glover had declined the annual vaccination due to her suffering anaphylaxis immediately after receiving the influenza vaccine at the age of seven, whilst she was a resident of the Philippines. Over these 10 years, Ozcare permitted her to continue in her role. In April 2020, Ms Glover again refused to be vaccinated.

Ozcare did not permit her to resume work and Commissioner Hunt found her employment was subsequently terminated by Ozcare in October 2020. Glover v Ozcare [2021] FWC 231, 18 January 2021.

Ms Glover refused to seek or provide any medical advice regarding her capacity to safely have the vaccination. The Commission pointed out that it had been 57 years since her last vaccination and there had been considerable medical advancements in that time. When asked if she would consider seeing a medical specialist Ms Glover confirmed she will never have a vaccination as she believes it would be a risk to her life and she was not agreeable to meet with a medical specialist to discuss the matter further.

The matter will now progress to a hearing by the Fair Work Commission on the fairness of the termination.

The question to be determined in 2021 is, can employers mandate a COVID-19 vaccine for their employees?

In light of Australia’s impending roll out of a COVID-19 vaccine in March, a major consideration for employers will be whether they can direct their employees to have the vaccine? Alternatively, can employers terminate or restrict their employees from entering the workplace if they refuse to take the vaccine.

If working from home arrangements, social distancing measures and regular cleaning practices cannot manage this risk alone then the vaccination will need to be considered as part of the solution. Whether this can be mandated depends on the specific circumstances of each individual employee.

In the absence of a government or Health Department, directive employers will generally not have an unfettered right to require their employees to be vaccinated against COVID-19.

However, at common law employees have an obligation to comply with the lawful and reasonable directions of their employer. The critical issue for determining whether a direction to receive the vaccine is “lawful and reasonable” will depend on a number of considerations, such as the nature of work that needs to be performed, the nature of clients/customers and other stakeholders, whether employees can work remotely, the local health advice and requirements of the Government at that point in time.

Does industry make a difference?

The possibility of employers being able to enforce a mandatory COVID-19 vaccine for their workplace will also vary depending on the industry that they work in. Obviously, people who work in health or with vulnerable members of the community might be viewed as more of a risk, and so as a result a requirement that they have the vaccine is likely to be considered lawful and reasonable to assist in ensuring their health and safety, and that of others around them, in their workplace. For example, it is already a requirement for people working in aged care facilities to receive the flu vaccination and there has been considerable discussion that this same requirement should apply for the COVID-19 vaccine. There has also been discussion that it should be mandatory for hotel quarantine workers to receive the vaccine due to their exposure to returned travellers.

There is also the possibility that it could be a Government requirement for employees in certain sectors to receive the vaccine. However, the situation is likely to be very different for those workplaces where the risk of infection is low.

Watch this space

With the Morrison Government hoping to administer the vaccination as early as March, this issue is sure to surface in a lot of workplaces. Industrial Relations Minister Christian Porter says that talks will soon start with employers and unions to work through the complex legal and workplace safety issues surrounding the rollout of COVID-19 vaccines.

Porter has said “preliminary discussions” had already begun “with key unions and employers from the health and aged care sectors about a vaccine roll-out and wider consultation with stakeholders from the broader economy will begin soon, with the first meeting scheduled for 1st February…Naturally there are a number of complex legal issues that need to be considered in preparation for the roll-out of a vaccination, some of which will be unique to particular workplaces and it should be noted that the largest area of legal responsibility for workplace safety is fundamentally a state responsibility.”

The Employment group at McCabes are available to assist employers with this developing area of workplace law and will provide further client updates in the coming weeks ahead.

Want to know more?

Listen to our recent Trial by Podcast episode on the topic: Could your employer make you get the COVID-19 vaccine?

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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 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

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
Litigation and Dispute Resolution

Expert evidence – The letter of instruction and involvement of lawyers

The recent decision in New Aim Pty Ltd v Leung [2023] FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.

Published by Justin Pennay
10 August, 2023