A dismissed employee can lodge an unfair dismissal claim alleging that their dismissal was “harsh, unjust or unreasonable”. Employees will often claim that the dismissal was all three: harsh, unjust and unreasonable. However,these concepts are distinct and will be considered separately when determining whether a dismissal was unfair.
A recent decision Hamlin v City of Sydney Council[2021] NSWIRComm 1010, the NSW Industrial Relations Commission (the NSW IRC) has found that the dismissal of an employee with 40 years of service for failing to comply with a safety policy, was not harsh.
The employee was employed by City of Sydney Council (the Council) as a Cleansing Services Operator. In June 2020, the employee was collecting bins in the local government area and was sighted by another employee standing on the back of the garbage truck while it was in motion.
The Council had changed its safety policies and procedures to prohibit this practice in 2017, following the serious hand crushing injury sustained by another worker.
The Council commenced a disciplinary process with the employee as a result of his failure to follow its directions and policies. The employee admitted that he had ridden on the back of the truck on the incident date and had done so at other times but denied that he had done anything wrong.
Later when the employee was asked to show cause why his employment should not be terminated, he apologised for his conduct and stated that he never took the safety policies and procedures seriously, but now understood that it was “deadly serious” and vowed never to ride on the back of a truck again.
After considering the employee’s responses, the Council terminated the employee’s employment for his misconduct in failing to comply with its policies and procedures.
The employee’s employment terms and conditions entitled him to be paid part of his accrued but unused sick leave if his employment was terminated for any reason other than for misconduct. At the time of his dismissal, the value of this payment for accrued but unused sick leave was more than $70,000. As a result of his dismissal, the employee was not paid his unused sick leave entitlements.
The employee lodged an unfair dismissal claim and submitted that his dismissal was unfair on the basis that it was harsh.
In relation to the incident itself, the NSW IRC found that the employee deliberately defied the Council’s directions to employees to cease riding on the trucks and had done so for his personal convenience.
The NSW IRC found that the employee was aware of the Council’s policies having attended sessions about the safe operating procedures and the change in the practice. The employee was also trained in the Council’s Code of Conduct which reiterated the requirement to comply with work health and safety (WHS) duties.
The NSW IRC noted that Council had WHS obligations and that it was reasonable to expect that employees would comply with its safety policies at all times. The policy banning the practice was to eliminate the risk of health and safety to workers, particularly as workers had been seriously injured in the past.
The NSW IRC stated at [36]:
The applicant had an obligation to act in accordance with the respondent’s direction to not engage in the practice, clearly aimed at ensuring compliance with its work health and safety obligations. An employer must be able to trust that its employees will comply with such directions for the relationship to be viable.
For the NSW IRC, the employee’s serious misconduct had “fundamentally undermined” the trust in the employment relationship.
The NSW IRC also did not accept that the employee had shown genuine remorse or contrition. It found that the evidence showed that the employee had a “cavalier attitude” towards the Council’s safety policies and had acted as if compliance with the policy was optional. It also found that the employee’s expression of regret and remorse only arose because his employment was at risk, not because the employee had actually believed he engaged in any wrongdoing. The NSW IRC was not satisfied that the employee had demonstrated that he had learnt from his transgression and had no confidence that the employee would comply with safety policies at all times in the future.
The NSW IRC rejected the employee’s submissions that his admissions about his conduct supported his claim of a harsh dismissal. In this regard, the NSW IRC stated that the employee had an obligation to be honest at all times about his conduct.
While the employee had a 40-year employment history with the Council, it found that a warning given to the employee two years prior was relevant in determining whether the dismissal was harsh because it also involved a breach of the Code of Conduct.
The NSW IRC found that the employee had engaged in serious misconduct and in the circumstances, the termination of his employment was an appropriate and proportionate response.
The NSW IRC concluded that given the serious nature and deliberate conduct of the employee, the incident had severed the requisite trust required in the employment relationship. The NSW IRC noted that the personal and economic impact of the dismissal on the employee had to be balanced against the obligation to ensure the work health and safety of workers.
The NSW IRC found that the dismissal was not harsh,unreasonable or unjust and dismissed the employee’s application.
Generally, a “harsh” dismissal is one in which the“punishment does not fit the crime” and the termination is disproportionate to the employee’s conduct.
Employers should take some comfort in this decision which supported the Council taking action against a long-serving employee who had failed to comply with its work health and safety policies.
The NSW IRC itself also noted that for employees, this decision reinforced that compliance with safety measures was not optional and that there would be serious consequences for ignoring safety policies, even in circumstances where there was no injury sustained.
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