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  NSWIRComm 1010 (9 February 2... 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:
Both the driver and the employee were terminated for serious misconduct.
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 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.
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.
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