March 2021

Trashing safety warrants termination: a clear message to employees

In an important statement on compliance with workplace safety protocols, the NSW Industrial Relations Commission in Hamlin v City of Sydney Council [2021] NSWIRComm 1010 has upheld an employee’s termination after more than 40 years’ service with the same employer following a deliberate and serious breach of safety protocol.

The decision follows a Full Bench of the Fair Work Commission decision in Blue Scope Steel Limited v Knowles [2020] FWCFB 3439, also sending a strong message to employees about the fundamental importance of safety.

Both Federal and State industrial tribunals are sending a clear message:

  • Compliance with safety is non-negotiable.

  • A deliberate and serious safety breach may very likely result in dismissal even without any incident causing any injury.

  • Lengthy service and other personal mitigating factors need to be significant to outweigh the seriousness of the breach to find a dismissal is harsh.

In this bulletin, we examine the Hamlin case; a matter where we represented the City of Sydney. The case explores several important issues.

The good ol’ days

As some may remember, it used to be common to see garbage collectors jump on the back of garbage trucks as they moved from one bin to the next. But was it a safe way to work?

Following some incidents, and updated safety advice from regulators, the practice was rapidly banned by the City of Sydney in 2017. The steps on the back of the garbage trucks were removed and employees were directed to no longer ride on the back. The employees were trained on a new safe work method for the collection of garbage.

Yet, on 30 June 2020, Mr Warren Hamlin was photographed riding on the back of a mini-compactor truck, on a thin lifting bar, as the truck travelled on busy Williams Street, Sydney.

When questioned about the incident, Mr Hamlin admitted that he had ridden on the back of the truck but said ‘I’ve not done anything wrong’. Mr Hamlin provided a range of explanations of his behaviour, including that there a funeral procession behind him, he was tired and that he was just trying to do his job as quickly and as safely as possible.

It was not until he was asked to show cause why he should not be dismissed that Mr Hamlin demonstrated any remorse, realising the consequences for him were serious. Ultimately, the City decided Mr Hamlin’s responses were insufficient such that it could not have confidence in him. Mr Hamlin’s employment was terminated. 

Mr Hamlin applied for relief from unfair dismissal on the basis his termination was harsh given his age, length of service (he was with the City for more than 40 years) and the difficulties he would have in obtaining another job.

The legal issues

The central issue was whether Mr Hamlin’s dismissal was harsh because of the financial and personal consequences for him. Mr Hamlin had 40 years’ service, was 62 years old and the decision to dismiss him meant he lost an entitlement worth $70,000 and his prospects to obtain other employment would be difficult.

In determining whether the dismissal was harsh, the Commission needed to consider many factors, including:

  1. The nature and seriousness of the conduct (including in the context of the regulatory environment);

  2. The remorse, contrition and insight of the employee in respect of their conduct;

  3. The employee’s employment history, including length of service and disciplinary background;

  4. The impact of the termination on the employee.

The regulatory context of safety: an important consideration

It did not matter that Mr Hamlin was not injured or there was no safety incident. As the Full Bench said in Blue Scope Steel, to determine the seriousness of an incident based on whether there is accident ‘misunderstands [an employer]’s safety obligations and approach to assessing safety and managing risks in the workplace’. 

In making any decision about a safety dismissal, Commissioner Webster commenced her analysis by considering the regulatory framework in which the employer operates, reciting at [35] to [38]:

The respondent has a positive obligation pursuant to the Work Health and Safety Act 2011 (NSW) (WHS Act) to “ensure, so far as is reasonably practicable, the health and safety of... workers” and eliminate such risks if reasonably practicable: see ss 17 and 19. That obligation is not only to establish, but to maintain and enforce a safe system of work: McLean v Tedman (1984) 155 CLR 306 at 313.

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.

The applicant also has an obligation pursuant to s 439(1) of the Local Government Act 1993 (NSW) to “exercise a reasonable degree of care and diligence in carrying out his or her functions.” Under cl 3.12 of the respondent’s Code of Conduct and s 28 of the WHS Act, the Applicant was required to:

“comply, so far as [he is] reasonably able, with any reasonable instruction that is given to ensure compliance with the WHS Act and any policies or procedures adopted by the council to ensure workplace health and safety”; and

“cooperate with any reasonable policy or procedure of the council relating to workplace health or safety that has been notified to council staff”.

It is entirely reasonable and legitimate that the respondent expected compliance with its safety policies and procedures at all times. As said by the Full Bench of the Fair Work Commission in Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249 at [27]:

“… The fact is that Harbour City required its policy complied with without discussion or variation. As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor. It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment. It does not need to have a discussion with any relevant insurer, litigant or passenger’s legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have to have the discussion.”

The above remarks are consistent with the Full Bench comments in Blue Scope Steel, that ‘in circumstances involving breaches of safety procedures the weighing exercise needs to consider an employer’s obligations to uphold safety standards in the workplace’.

A serious breach means serious consequences

There was no dispute that Mr Hamlin determined – for reasons only known by him – to ride on the back of the garbage truck despite the City’s known prohibition of the practice. Mr Hamlin did so on other occasions. Not only was the practice in breach of safety protocol but it was also inherently unsafe to ride on a thin lifting bar not designed for standing.

In weighing up the relevant factors, Commissioner Webster held that Mr Hamlin’s ‘flagrant and deliberate’ violation of the City’s safety protocol was done for his own personal convenience. ‘He simply chose to ignore the direction’ such that his conduct was ‘serious misconduct that has fundamentally undermined the trust’ required in the employment relationship, Commissioner Webster said.

The Commission further held that Mr Hamlin had ‘a cavalier attitude towards [the City’s] policies designed to keep him, his work colleagues and the general public safe’. Commissioner Webster found that Mr Hamlin ‘did not demonstrate sufficient insight into his transgression … for there to be confidence he would not breach another safety protocol in the future if it was convenient for him to do so’.

Mr Hamlin was ultimately apologetic when he was asked to show cause why he should not be dismissed. Mr Hamlin was apologetic to the Commission in pleading for his job back. However, such (late) remorse needs to be seen in context. Commissioner Webster concluded:

I am compelled to find that the regret and remorse that he felt in respect of his actions at that time and, as expressed through these proceedings, arose as a consequence of his threatened and ultimate dismissal, not because he genuinely believed he had done anything wrong.

Although the Commission found that Mr Hamlin was well liked and supported by his peers and that the termination had a significant impact on him, both financially and emotionally, Commissioner Webster ultimately found that the decision to terminate Mr Hamlin’s employment ‘was a proportionate response to the serious misconduct’. 

The lessons

In a reassuring decision, the Commission held that Mr Hamlin’s dismissal was not, in all the circumstances, harsh. 

Personal mitigating factors need to be ‘significant’ to outweigh a serious safety breach. As Commissioner Webster said, ‘[b]ecause the nature and seriousness of the conduct will be a relevant matter to take into account in that balancing exercise, it will be more difficult for an applicant to demonstrate harshness where there has been a finding of serious and wilful misconduct than where this is not the case’. Personal circumstances are not a shield to every act of misconduct.

In closing, the Commission gave a clear message that breaches of safety policies and procedures should not be tolerated, stating (our emphasis):

While the impact of the termination will have a significant impact upon the applicant, financially and emotionally, this must be balanced against the interests of the respondent and the broader community in ensuring that people are not injured or killed when at work. This decision should serve to reinforce the important message to employees that compliance with their employer’s safety protocols is not optional and the consequences of ignoring them can be serious even if no injury is sustained in the process.

Put another way, compliance with safety protocols is mandatory, first time and every time.

Please feel free to contact us if you have any questions about how to enforce safety procedures and protocols at your workplace.

Authors: Jade Bond & James Mattson