FWC Ruling: Work-from-Home Direction for Harassment Accused Breaches Agreement

Background and Context

In a significant decision, the Fair Work Commission (FWC) determined that Ambulance Victoria violated its agreement when it directed a paramedic to perform alternative duties from home while investigating sexual harassment allegations. This case sheds light on the complexities of balancing duty of care with adherence to employment agreements.

FWC Ruling: Work-from-Home Direction for Harassment Accused Breaches Agreement

The Dispute

The Victorian Ambulance Union brought the matter before Commissioner Scott Connolly, seeking resolution of a dispute where a paramedic was instructed to work from home. From September 21, the paramedic was tasked with reviewing and adding documents to learning hubs and resource libraries, diverging from his principal duties while the investigation was ongoing.

The Paramedic's Perspective

The paramedic argued that he had not agreed to the alternative duties, describing them as mundane and inconsistent with his primary responsibilities and skills. He expressed concerns about being deskilled and financially disadvantaged due to the inability to work overtime and earn additional income as a Mobile Intensive Care Ambulance (MICA) paramedic and/or single responder.

Ambulance Victoria's Position

Ambulance Victoria defended its decision by emphasising the consideration of the paramedic's mental health. They argued that assigning "meaningful and essential" duties at home was preferable to suspension, especially as it ensured no incidental contact with the complainant, thus maintaining duty of care.

The Agreement's Clauses

The core of the dispute revolved around whether Ambulance Victoria's actions complied with the agreement's clauses, specifically 28.1(k) and 28.1(l). These clauses define a MICA paramedic single responder and stipulate that such paramedics "may, by agreement" perform other duties utilising their skills and knowledge.

Commissioner's Deliberation

Commissioner Connolly scrutinised the language of the clauses, focusing on "principal duties include" and "may, by agreement." He interpreted that MICA paramedics must be allocated duties that encompass their primary responsibilities, including the assessment, treatment, care, and transport of emergency and non-emergency patients in pre-hospital settings.

Key Findings

The Commissioner concluded that Ambulance Victoria was not at liberty to allocate additional or secondary duties that did not include, in whole or in part, the principal duties identified. Furthermore, any deviation from these duties required the paramedic's agreement. The "plain meaning" of "may, by agreement" was clear: any alternative duties necessitated the employee's consent.

Absence of Ill Intent

While Commissioner Connolly acknowledged the challenges faced by Ambulance Victoria and accepted that there was no ill intent, he emphasised that the employer's actions still breached the agreement. The commitment under the agreement to not allocate duties outside the principal responsibilities without the paramedic's consent remained binding.

Conclusion

In this case, the FWC ruled that Ambulance Victoria breached the agreement by directing the paramedic to perform alternative duties from home without his agreement. This decision underscores the importance of adhering to employment agreements and ensuring that any modifications to duties align with the terms set out and mutually agreed upon.

This ruling serves as a crucial reminder for employers to carefully navigate the balance between duty of care and contractual obligations, particularly in cases involving sensitive issues such as harassment allegations.

### Implications for Employers

Employers must ensure that any reassignment of duties, especially under extraordinary circumstances, aligns with existing agreements and secures the employee's consent. This case highlights the necessity for clear communication and adherence to contractual terms to avoid disputes and potential breaches.

For more information and guidance on navigating employment agreements and handling workplace disputes, contact us.

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This blog post is intended to provide general information and is not legal advice. For specific legal assistance, please consult with a qualified professional.