05 Mar HR LAW NEWSLETTER – FEBRUARY 2025

Welcome to the February 2025 HR Law Newsletter. 

In this February Newsletter, we will:

• provide a legislative update on the new obligations for businesses operating in Queensland to prepare and implement a Sexual Harassment Prevention Plan;

• celebrate the achievement of our Managing Partner, Jill Hignett and her recent recognition in Doyle’s 2025 guide for “Leading Employment Lawyers (Employer Representation)” within Queensland; and

• discuss a recent case in the Queensland Industrial Relations Commission involving an employee who was reinstated after a “brain snap” and the employer’s procedural failures.

LEGISLATIVE UPDATE

Introduction of Sexual Harassment Prevention Plans from 1 March 2025 in QLD

On 1 September 2024, the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024 (Qld) came into effect (“Amendment Regulation”).   

The Amendment Regulation, which amends the Work Health and Safety Regulation 2011 (Qld), introduces new compliance requirements for businesses regarding the management of sexual harassment and sex or gender-based harassment in the workplace, including:

• the requirement to manage risks related to sexual harassment and sex or gender-based harassment as part of their existing duty to address psychosocial risks; and

• the requirement to implement control measures (with particular consideration of factors such as workforce characteristics, workplace environment and culture).

In addition, under the Amendment Regulation, businesses operating in Queensland must prepare (and implement) a Sexual Harassment Prevention Plan (“Plan”) to manage identified health and safety risks from sexual harassment and sex or gender-based harassment at work. 

The Amendment Regulation mandates specific content to be included in the Plan and requires businesses to consult with workers in the development of the Plan.

Businesses must have a Plan in place by 1 March 2025.  Penalties can apply for non-compliance.  

If you require assistance to create or review your Plan, HR Law is able to provide tailored legal advice for you.

HR LAW ANNOUNCEMENTS

2025 Doyle’s Guide

Jill Hignett, Managing Partner of HR Law and Accredited Specialist – Workplace Relations, has been listed in the 2025 Doyle’s Guide for Queensland Employer & WHS Law rankings as a recommended employment lawyer (Employer Representation).  This exclusive list recognises Queensland employment law solicitors for their expertise and abilities within the areas of employment and industrial relations law.  Jill has extensive experience and knowledge in all areas of workplace law and assists numerous large, medium and small employer clients at State, Federal and international levels. 

As a Workplace Relations Accredited Specialist, Jill’s expertise and leadership have been instrumental in guiding our firm and ensuring we can continue to provide the most strategic, practical and commercially realistic advice to our clients.

HR Law has also been recognised in the 2025 Doyle’s Guide as a recommended Queensland Employment Law Firm practising within the areas of employment and industrial relations law whose practice has a strong employer representation focus.  HR Law provides strategic, practical and commercially realistic workplace relations legal advice to employers.

The focus in this specialist field of the law enables Jill and the HR Law team to offer clients cutting edge strategic advice based upon the teams’ extensive experience and knowledge.  Get in touch with Jill and HR Law for all your workplace relations needs. 

To access the 2025 Doyle’s Guide, click here.

CASE BRIEF

In the case of Black v Gladstone Regional Council [2024] QIRC 285 (6 December 2024), a Gladstone Regional Council Team Leader (“Team Leader”) who privately referred to his supervisor as a “rude c**t” and flippantly threatened physical harm was reinstated by the Queensland Industrial Relations Commission (“QIRC”) as it found that the Team Leader had a “brain snap” and his employer made a number of “procedural failures” in his termination.

Facts

• On 6 June 2023 whilst on leave, the Team Leader (who managed 15 employees and was experiencing significant workload and pressure) had been advised by his Supervisor (“Supervisor”) that he was not required to attend to work emails while on leave.

• In response to this message, the Team Leader sent a text message to another colleague (“Concerned Colleague”) stating “seriously I’m going to punch on with [the supervisor]” followed by, “he is a rude c**t!”.

• The Concerned Colleague notified management of the comments (out of concern for his welfare and wellbeing) and the Team Leader was required to attend a meeting on 8 June 2023.  At this meeting, the Team Leader was stood down pending investigation.

• Following a subsequent meeting, the Team Leader was dismissed on 27 July 2023 for inappropriate use of a Council phone and failure to raise workplace concerns in a timely and respectful manner.

Considerations

Was the dismissal procedurally fair?

The QIRC found that the dismissal was not procedurally fair.

Under the Council’s Certified Agreement, a meeting in relation to a disciplinary process requires that:

• employees shall be provided with at least 24 hours’ notice in writing;

• the notice should include the detail of what the meeting is about and why the employee’s attendance is required; and

• the notice should make it clear that the employee has a right to have a union representative present or other representative.

Commissioner McLennan found that the Council failed on all instances above because at the subsequent meeting, the Team Leader was only given an evening to arrange a person of support (and was unable to secure a support person in time), he was not advised of his right to have a union representative and he was not given sufficient detail in the notice about the purpose of the meeting.

Commissioner McLennan made specific comments addressing the Council’s General Manager and HR Manager.  She noted that as they were both present at the meeting, they both clearly understood the importance of having a support person in such meetings.  Furthermore, when the Team Leader enquired about the subject of the second meeting, he was advised that the subject matter was only to speak with the Council’s General Manager (and not its true purpose).

Commissioner McLennan made the following comments:

“[31] Foundationally, therefore I find that the procedural failings of Mr Black not being provided with prior notice of the meeting or its purpose, coupled with no opportunity to arrange for a support person in advance of said meeting is more than a “mere blemish”.

[32] While it was appropriate to take the decision to suspend Mr Black until Council could investigate the matter of the texts, the way it went about it was procedurally unfair.”

Was the dismissal harsh, unfair or unreasonable?

The QIRC assessed that the termination was harsh, unjust and unreasonable.

Harsh

On 17 July 2023, the Team Leader provided a written response.  Commissioner McLennan viewed that although the wording of the letter was “unfortunate”, it was clear that the Team Leader had never intended to hit the Supervisor, it was a “vent” and the anticipated recipient was specifically the Concerned Colleague.

The QIRC assessed that the Council’s decision to terminate the Team Leader’s employment was “harsh, unjust or unreasonable” due to the inclusion of the third allegation in the substantiated allegations letter.  Allegation 3 is as follows:

“That you failed to raise the concerns, tabled at the meeting on 13 June 2023, that you were having in the workplace in a timely and respectful manner with your Manager Bboyd Newton, or your General Manager if you could not discuss these issues with Bboyd.  You failed to participate in effective teamwork, which is an essential part of a productive workplace culture”.

The QIRC viewed that the inclusion of this third allegation was inappropriate, as this was not the appropriate method to educate workers on such processes.  The QIRC determined that the Team Leader had “every right to feel blindsided” by the outcome of the second meeting, given he was under the impression that this meeting was an opportunity for him to share the stresses and pressures that led to this outburst.

The evidence showed that the Council initially proposed a written warning and Commissioner McLennan stated that it was “highly regrettable the [Council] strayed from its original considered path”.  Commissioner McLennan viewed that “a written warning in all the circumstances of this case was the correct course”.

Unjust

The Council’s initial response to the conduct was to issue a written warning to the Team Leader until he had provided the response.  When the Team Leader provided an apology (clearly outlining his remorse), the Council then proceeded to terminate his employment based on his response.  The QIRC accepted that this was an unjust outcome because the termination was not done on the basis of the content of the text message, but on the Team Leader’s apology. 

Unfair

The QIRC accepted that the dismissal was unreasonable because it was a disproportionate response to the Team Leader’s unblemished employment record, he was under pressure at the time, and the text messages were out of character.  The QIRC also considered that the Team Leader had shown remorse and expressed willingness and commitment to improving his behaviour.

Outcome

The QIRC made the following orders:

• the Team Leader was reinstated;

• the Team Leader’s continuity of employment was maintained between the date of his dismissal and the date of reinstatement; and

• the Council was required to pay the Team Leader remuneration lost during the period of dismissal.

LESSONS FOR EMPLOYERS

Procedural fairness

During disciplinary proceedings and processes, employees must be afforded procedural fairness.  Employers should ensure that if these processes are in place, they are adhered to in the relevant instances. 

Proportionate disciplinary actions

The proportionate and appropriate disciplinary action in response to the Team Leader’s conduct was a written warning.  Employers must ensure that when addressing employee issues, appropriate and proportionate measures are implemented.

Consideration of context and factors

Employers must take into consideration relevant factors when assessing the termination of an employee including their employment record, length of service, and contextual circumstances. 

If you have any questions regarding dismissals and terminations within your business, please contact our office.

To read the case, click here.

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The content of this newsletter is intended to provide a general guide to the subject matter.  Specialist advice should be sought about your specific circumstances.