June 2017

Is two jobs too many? Fatigue in the workplace

Fatigue at work is a very real issue and a big risk for employers if not properly managed.  But what control do employers have over what an employee does outside of work?  Why can’t workers be resourceful and have a second job?

Recently, the NSW Industrial Relations Commission handed down a decision that:

  • reminds employers of the importance of guarding against fatigue in the workplace; and

  • cautions workers on not co-operating with their employer to ensure safety at work.

Let’s explore the issues.

What is fatigue?

Fatigue has been described by SafeWork NSW as “a state of mental and/or physical exhaustion which reduces a person’s ability to perform work safely and effectively”.  At best, fatigued employees are inefficient.  At worst, fatigued employees are a danger to themselves and to others.  A real risk to business.

Studies have shown that lack of sleep has comparable affects to alcohol consumption.  Overseas studies have found:

  • 17 hours awake is equivalent to a blood alcohol content of 0.05;

  • 21 hours awake is equivalent to a blood alcohol content of 0.08; and

  • 24-25 hours awake is equivalent to a blood alcohol content of 0.10.

Obviously, most employers would not allow an employee under the influence to come to work.  In the same way, employers have a duty to ensure that their employees are not attending work fatigued. 

Studies have shown that between 0.05 and 0.08 blood alcohol content, every person suffers impairment in tasks requiring skills, vigilance and precision. Isn’t that all jobs?

Grafton v Waverley Council (No.2) [2017] NSWIRComm 1020

Phillip Grafton was a full-time employee of Waverley Council.  During the day, he worked as a ‘Public Place Cleaner’. Unbeknownst to the Council, Mr Grafton also worked full-time hours as a night-filler at Woolworths.  Incredibly, he maintained these two full-time jobs for two full years before the Council realised.  

It all came crashing down for Mr Grafton when he injured his wrist.  Before that, he was running quite a hand-y arrangement (sorry, bad pun).  Mr Grafton made a workers’ compensation claim, which ruled him out of action for several months.  It was only through the workers’ compensation process that the Council became aware of Mr Grafton’s second job.

Wary of their own obligations under work health & safety laws, the Council asked Mr Grafton to reduce his working hours. Unfortunately, Mr Grafton refused to make any changes.  So, the Council terminated his employment for serious misconduct; disobedience.

Mr Grafton brought a claim for unfair dismissal to the Commission, but that claim was unsuccessful. The Commission sided with the Council in finding that the termination was not harsh, unreasonable or unjust.  

The Council’s direction to reduce his hours “were lawful because his work with Woolworths had the potential to conflict with his ‘council duties’, in the sense of his ability to carry out those duties in a safe manner, without risk to himself and others”, the Commission said.

In some ways, you have to feel for Mr Grafton.  He was working two jobs in an attempt to earn enough money to support his family, and indeed, to achieve an income that would allow him to remain in Sydney.  Capital city living is expensive.  Workers are sometimes forced to work multiple jobs to make ends meet.

To the Council’s credit it was not oblivious to the challenges of life.  The Council “went to extraordinary lengths to accommodate [Mr Grafton’s] desire to work for the Council and for Woolworths” and allow him to earn an extra income.  Mr Grafton would not be flexible, demanding his right to work two jobs unrestricted.  “Faced with this intransigence … the Council had no option other than to dismiss”, the Commission concluded.

Conclusion

Employers have legal duties of care to protect the health and safety of all employees at work.  This is one point that Mr Grafton did not grasp.  His excessive working hours were not only a risk to himself but to others in his workplace.  

So, let this be a reminder to employers.  In many cases, you are ultimately responsible for what happens in your workplace.  Waverley Council was in some ways lucky that there wasn’t a more serious injury to Mr Grafton, or that no one else was injured as a result of his fatigue.  If there was, the Council may have had a case to answer, for letting one of its workers continue to work such excessive hours.

Workers also have some responsibility to ensure that their acts and omissions do not affect others.  Some personal responsibility needs to be taken and employees must cooperate with employers.

After all, we must all be mindful that what happens outside of work can easily and readily have an impact at work.  Eyes open?

Author: Ryan Murphy