A 62 year old with 42 years of service with the City of Sydney Council challenged his dismissal which cost him (amongst other things) a $70,000 entitlement. The Commission however found in favour of the Council citing the safety breaches had potential consequences for “catastrophic and avoidable” injuries.
In Hamlin v City of Sydney Council [2021] NSWIRComm 1010 (9 February 2021) the employee and his fellow garbage collector (the driver) were photographed standing on the back of a mini-compactor truck whilst in motion. Back in the day and prior to 2017 this was perfectly acceptable for the Council.
However, a serious injury of another employee led to widescale changes in 2017 at Council which included:
- A policy and therefore direction not to ride on the back of the truck whilst in motion;
- Several toolbox meetings were rolled out;
- A period of time was given for transition;
- Discussion and training that the riding on the back of the truck although quicker was not safe at all and was very dangerous
Both the driver and the employee were terminated for serious misconduct.
Misconduct or a bit harsh?
The primary issue to consider for the Commission was the element of “harsh” in regards to the unfair dismissal claim. That is when considering whether a dismissal is harsh, unjust or unreasonable. The major factors to consider put forward by the employee representatives (the union) was:
- The employee’s long length of service – 42 years
- The employee’s age – 62 years old
- The ability and prospects to find similar employment would be difficult considering his age
- The employee lost an entitlement of $70,000
- He had shown remorse for his actions
- The employee had now lost his sense of purpose
The Commission carefully considered the above issues and had to weigh this against the seriousness of the misconduct and whether the dismissal was a proportionate response to the conduct.
Safety breaches are misconduct and undermines trust
The Commission made it clear that the policy was brought in by the Council because of the ultimate serious potential consequences for employees who rode on the back of trucks. The violation itself was “flagrant and deliberate” and the ignoring of the safety protocol was merely done for his own personal convenience.
Further the Commission found the conduct fundamentally undermined the trust and confidence in the employment relationship.
Although the employee was well liked and later was apologetic for his behaviour – when the allegations were first put to him he did not show contrition. There was also a feeling in Council that if this safety breach were allowed without severe consequences they believed he would breach safety protocols again in the future.
Quick lessons for Employers and Councils
- With misconduct a show cause process is integral. Yes, an investigation will lead to further findings of fact but a show cause process also brings out further information such as the contrition of the employee and the employee’s side of the story
- Safety breaches are serious misconduct. Safety is paramount and the Commission in this case have further supported that safety breaches if properly directed via a policy and set out with training (and roll out) can be relied upon as a standard for all employees
- Length of service and age must be considered (but it does not necessarily prevent a termination of employment). Long service and mature age will give alarm bells around discrimination and harshness but if the process is right and the breaches can be set out properly the commission will strongly consider in favour of an employer.
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Written By
Director
NB Lawyers – Lawyers for Employers
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
