COVID-19, Employment

ASIC calls employers to provide for ‘casual’ employee entitlements in reporting

10 August, 2020

With unprecedented numbers of Australian employees now working from home due to the coronavirus pandemic and social distancing measures implemented by the Government, the Australian workforce has embraced flexibility like never before, with technology as its driving tool.  However, it is crucial for employees to understand that while their workplace environment may have temporarily changed, their conduct is held to the same standard as when they are present in the office, including with respect to any online communications.

The new normal – an online workplace

With organisations now actively encouraging employees to leverage the various instant online communication platforms available to them, including Microsoft Teams, Zoom, Slack, and other instant messaging platforms, it is crucial that employees understand their responsibility to communicate in the same way as they would in the workplace itself, and comply with all applicable workplace policies.

There is no doubt that instant messaging can be an effective communication tool – however, employers should be managing the risks associated with this platform in the same way as every other IT, communications, and social media platform. Employers need to be just as vigilant of inappropriate behaviour while employees are working from home, if not more so than they would if employees were working in the office environment. Instant messaging gives the perception that conversations held, or content posted on these platforms is “private” or confidential between the recipients, regardless of their connection to the workplace.

There is a real risk that employees forget or just don’t think that communications over these platforms are subject to the employer’s workplace policies in the same way other forms of communication are. Communications over these types of platforms can be ripe for allegations of bullying, harassment, including sexual harassment and discrimination. Think sexual harassment through memes, GIFs and other “light-hearted” jokes to break the solitude or inappropriate ‘banter’ in a chat group to break up the day.

Cyberbullying “at work”

Our current working from home landscape also exposes employees to increased risk of being the subject of cyberbullying, with employees utilising online communication tools to expose other employees to negative and attacking online behaviours by way of email, instant messaging and video conferencing platforms.

Such bullying can also go unnoticed by colleagues and unchecked by HR/management. An employee is bullied at work if a person or group of people repeatedly act unreasonably towards them, and this behaviour creates a risk to the employee’s health and safety. Confusion often arises around what is considered to be “at work”, particularly in the age of remote working, flexibility and online communications at employees’ fingers tips at all times.  While the law is constantly evolving with respect to the concept of “at work”, it is accepted that bullying does not necessarily have to occur at the actual workplace, however, it must occur while the worker is actively engaged in the performance of work or some other activity which is authorised or permitted by the employer. This may include a lunch break onsite, a work trip outside of the normal working area, accessing social media while onsite, and relevantly, when working from home.

It is important to remember that employers and individual employees can be liable, vicariously and personally, respectively, for inappropriate conduct that occurs “at work”, which crucially extends to the inappropriate conduct of employees working from home. Employers also must remain cognisant of their obligations from a work health and safety perspective to ensure that people are not being subjected to bullying type conduct.  With the Australian workforce largely working from home it may even be easier for employees to be bullied without that being known, seen or heard.

Workers Compensation Claims

Employers should, of course, be currently taking steps to ensure that employees are taking steps to set up home offices/workspaces to be safe to avoid physical injuries, however, it is equally important to remember that employees who have been the victims of unlawful treatment, including bullying behaviours, adverse action, and harassment, are also able to bring workers compensation claims for any psychological injuries sustained as a result, provided they are able to establish that the injury was arising out of or in the course of their employment.  This includes any psychological injuries sustained while working from home.

Strategies to reduce inappropriate behaviour while working from home

In our experience, it is apparent that employees seem much more likely to be casual and even inappropriate over instant messaging communications than in person or via email. Given the heavily increased use of such communication methods while employees are working from home, and in order to mitigate the risks associated with employees engaging in inappropriate conduct while working from home, it is recommended that your organisation consider the following tips:

  • Stay in touch! Maintaining regular contact with employees is now more important than ever, and HR and management functions should seek to ensure that they maintain regular contact with their employees.
  • Remind employees of workplace policies in force, particularly Social Media and IT Usage policies, and where these policies can be accessed.
  • Employees should be reminded that anything put in an instant message should be something that they would be willing to say to a colleague’s face in person or via email.  If this is not the case, the communication is likely inappropriate.
  • Remind employees that all communications over the organisation’s IT systems, including all instant messages on chat programs such as Teams, are stored by the organisation and can be reviewed at a later date.
  • If you have specific concerns about behaviours or a pattern of behaviours, be prompt in addressing these concerns.
  • Ensure that you have a Workplace Surveillance Policy and/or employment contracts that provide sufficient notice to your employees that you may monitor any online communication made using the organisation’s IT systems.
  • Review your communications software to ensure data is retained and accessible to the organisation.  Be careful – it can be more difficult on some communication platforms than others to obtain message history.
  • If your communications software allows for employees to record video calls, ensure all employees are aware of this feature and your organisation’s policies regarding the recording of video calls and notification/consent of such.

Finally, it is important to remember that in times of uncertainty, culture is driven from the top, with employees looking to management teams and executives for direction. On this basis, it is important that HR and management teams are leading by example and ensuring all of their own behaviours and communications are appropriate, not only those communications which are widely disseminated but also communications in individual and smaller team situations.

This is a time of great uncertainty and worry for employees, where communication is vital and any light relief is, generally, welcomed. While we certainly don’t want to be the fun police, it is important to remember that there is often a fine line between the ‘banter’ and the unlawful act. With employees now sitting behind cameras or at the end of phones and instant messaging platforms, it’s even more difficult to gauge colleagues’ reactions and perceptions. Intent is not relevant to a legal defence. This is not the time for HR and management to have to spend time managing employee grievances or complaints about inappropriate workplace conduct when they are dealing with business continuity plans, workforce planning and the many other issues that come with navigating the organisation through this crisis.

If you would like any support working through the challenges of employment/HR law issues presented by the COVID-19 pandemic, including working from home, please get in touch with McCabes Employment group.

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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