Working faster is not working safer

The NSW Industrial Relations Commission has continued to maintain a strong stance on safety in the workplace, giving employers the confidence to take decisive action when employees flagrantly breach safety rules.

In the Full Bench decision of Hamlin v Council of the City of Sydney [2021] NSWIRComm 1066, the Commission accepted the City of Sydney’s argument about the importance of safety in deciding to dismiss Mr Hamlin. The Full Bench said, ‘[s]afety is not subservient to the duty to work; it is an inherent and fundamental part of the duty to work itself.’

Background

Earlier this year, Commissioner Webster determined that the dismissal of Mr Hamlin, after he was seen riding on the back of a garbage truck down a busy Sydney street, was not harsh.

The City had prohibited riding on the back of garbage trucks following a number of incidents. A risk assessment process determined that the practice was unsafe.

Despite his lengthy service (over 40 years), Commissioner Webster found that Mr Hamlin ‘did not demonstrate sufficient insight into his [safety] 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’. As such, the dismissal was the correct decision for such a flagrant breach.

In dismissing the unfair dismissal application, Commissioner Webster said:

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.

You can check out our full summary of the earlier decision here.

The appeal

Mr Hamlin appealed Commissioner Webster’s decision on two main grounds:

  1. The decision was ‘unbalanced and attended by error in principle’, as Commissioner Webster had allegedly focussed almost entirely on Mr Hamlin’s failure to comply with a safety direction and ignored other factors like his duty to complete his work.

  2. The decision was manifestly unjust given Mr Hamlin’s age, limited prospects for future work, his family’s dependence on his earnings, his mental health and wellbeing following his dismissal, and loss of his accrued sick leave.

Mr Hamlin argued that Commissioner Webster failed to consider that he had competing duties – a duty to perform his work safely and a separate duty to work in the interests of the City. Mr Hamlin said it was okay for him to work quickly to get his job completed and that he was working with diligence and cooperatively in getting his work completed. Mr Hamlin said he worked in a way he felt was safe and efficient by riding on the back of the garbage truck as he had always done.

Mr Hamlin claimed that ‘the duty to comply with a safety obligation is subservient to an overriding obligation to work in the interests of the employer’. He added that the interest of the City was for him to complete all his work in his shift and he was trying to do his job the quickest and safest way possible. Mr Hamlin said this was acting diligently.

The City disagreed. It was submitted that “to work diligently required him to work safely. To co-operate required him to do his job safely as directed. Safety is not subservient to the duty to work; it is an inherent and fundamental part of the duty to work itself. To the extent [Mr Hamlin] suggests that the duty to complete work justified ignoring … the safety rule, it is a fundamentally false proposition.

“In this case, consistent with the risk of serious injury, a clear and well-known safety rule was implemented. [Mr Hamlin] was fully aware of the direction and expectation that he work as directed. No other circumstance or event could justify his actions. Least so the explanation of trying to do his job in the quickest and safest way he could. The safest way was to not ride on the back. The quickest way was to do so in the safe manner required by the [City]. Safety cannot be subservient to speed.”

This suggestion that the duty to work prevailed over safety was completely rejected by the Full Bench, which stated at [21]:

Safety is not subservient to the duty to work; it is an inherent and fundamental part of the duty to work itself.

To put it another way, employees have an obligation to perform their work safely. There is no separate and competing obligation. To work safely is the quickest way to work. Indeed, in this day and age, with heavy penalties for breaching safety laws, it is in the employer's best interests that employees perform their work safely!

What does this decision mean?

Reassuringly, the Full Bench has continued to maintain a strong stance on safety in the workplace. Compliance with safety is not optional for employees.

Employers should take comfort in this decision and confidently enforce their safety protocols. Employees who wilfully and recklessly ignore them, and then show no insight, are unlikely to attract any sympathy from the Commission, even if they have lengthy service and other mitigating factors on their side.

Authors: Jade Bond & James Mattson

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