Footy fevers at an all-time high in WA this week. So how does this impact employment you say? In many ways. Here we take a look at employer considerations for ensuring a safe and enjoyable grand final period with respect to work.
The 2018 AFL Grand Final is to be played at the MCG in Melbourne this Saturday 29th September. This year is particularly exhilarating for Western Australian fans as the West Coast Eagles have made it to the biggest game of the season. Grand final fever will be brewing for many WA fans in the lead up to the weekend and employers of hardcore West Coast Eagles fans should be aware of a number of potential employment issues associated with this event.
Employers may find an influx of annual leave request from employees wanting to attend the game in Melbourne in light of the grand final weekend. It is important that employees are reminded of company policies and procedures and that their employer reserves the right to refuse any annual leave requests where the refusal is reasonable, such as due to operational requirements or not meeting notice requirements etc. Employers who reasonably refuse employee annual leave requests need to be aware that employees may resort to fraudulently claiming personal leave for the period as a desperate attempt to attend the game or associated events. If an employee expresses they will be taking personal leave as a result of being refused annual leave associated with the event, it is important for employers to communicate clearly to the employee that this conduct would constitute an unauthorised absence as it does not meet the definition of genuine personal leave, and could result in disciplinary action, up to and including termination of employment.
In Anderson v Crown Melbourne Ltd  FMCA 152, the employee was dismissed after his annual leave claim was refused and he instead called in sick. He produced a medical certificate but had previously expressed that he intended to attend a football game in Perth on the day in question. The Court did not accept the validity of the medical certificate and found that the applicant was not ill on the day in question. Therefore, it was found that the termination was not due to ill health but for misconduct by the applicant. The Federal Magistrates Court dismissed the employee’s unlawful termination claim.
Employers can, in some circumstances, challenge evidence provided by an employee where there is reasonable cause to believe that the employee is abusing their right to personal leave. For those employees that call in sick on and/ or around the grand final weekend, employers need to be cautious not to jump to conclusions about whether the leave is genuine. Ensuring employees comply with company policy and procedure, in that they provide the appropriate notice and evidence requirements, will be critical. Where an employer has reasonable cause to believe the leave may be fraudulent, contacting the relevant medical practitioner’s office to confirm the issuing of the medical certificate by that practise and the accuracy of the details contained therein =may offer useful evidence. The employer may also be able to challenge a medical certificate where there is reasonable evidence to suggest it is fraudulent or the employee was not genuinely ill or injured on that day, such as in the case of Dekort v Johns River Tavern Pty Limited T/A Blacksmiths Inn Tavern  FWA 3389. In this case a photo posted on Facebook of an employee participating in New Year’s Eve celebrations contributed to the dismissal of the employee’s unfair dismissal application. The employee claimed he was unfit for work at the time, supporting his application with a medical certificate. However, it was found that the inconsistency of his actions, with the the evidence of the employer led to the application being dismissed and finding that the case was one with no reasonable prospect of success. In this instance the employer was able to rely on social networking sites to their advantage.
Employers also need to be aware that on return to work after a ‘big footy’ weekend some employees may have engaged in taking drugs and/ or alcohol that may affect their fitness for work. Employers should remind their employees of, if any, company policy and procedure on drugs and alcohol in the workplace and that employees may be subject to testing on return to work. This is also relevant where employers organise workplace functions in support of the AFL grand final. In organising a workplace function, employers and employees have a legal duty of care. This duty requires the employer to take all reasonable steps to provide safe systems of work for employees. To uphold an employer’s duty of care, some reasonable steps that can be taken are outlined below.
- Educating all staff on the relevant policies prior to the event, which may include (but is not limited to):
- drug and alcohol policy
- equal opportunity policy (covering sexual and racial harassment and discrimination)
- workplace bullying policy (or code of conduct covering off on this)
- social media policy (to deal with inappropriate photos and comments being posted on social media in relation to the event)
- Briefing management on their responsibilities at the event;
- Ensuring the venue of your choosing is complying with responsible service of alcohol;
- Providing non-alcoholic drink options;
- Ensuring the amount of alcohol provided is relative to the amount of food served;
- Appointing a designated supervisor for the event to oversee staff and address unwanted behaviour at the time;
- Providing taxi vouchers, shuttle buses or other safe means of transport home;
- Communicating a clear end time to the event;
- Choosing a low risk venue (i.e. not on or near a body of water etc.);
- Undertaking a risk assessment before the event and putting mechanisms in place to address any hazards identified.
The employer’s risk of being held vicariously liable for employee actions at AFL grand final workplace functions should also be considered. Vicarious liability essentially refers to a situation where an employer is held liable for certain employee behaviour. Discrimination, sexual or racial harassment and/or bullying are all actions that an employer could be found vicariously liable for. In order to avoid vicarious liability, employers should implement the suggestions outlined above under the duty of care considerations.
For more information on contact the CCI HR experts at the Employee Relations Advice Centre on (08) 9365 7660 or email email@example.com