Long Term Garbo loses unfair dismissal claim and unused sick leave payout

Long Term Garbo loses unfair dismissal claim and sick leave payout.png

Long Term Garbo loses unfair dismissal claim and unused sick leave payout

 

A Garbage collector employed for over forty (40) years by a Sydney council has lost his unfair dismissal claim for breaching a safety standard that a NSW Commissioner commented reflected a cavalier attitude by him towards safety policies. In addition, the employee suffered further loss from the termination as it meant he forfeited his lost opportunity or chance to the payout of his unused sick leave on resignation or redundancy, amounting to over $70,000, as he was terminated for misconduct.

The facts of the case are quite straightforward. On 30 June 2020, he was working as a labourer collecting garbage bins in Kings Cross, and during the shift, he was observed by a co-worker standing on the back of a Council truck while the vehicle was in motion. Following a show cause process, the worker was terminated and paid five (5) weeks in lieu of notice. During the investigation, it was determined that he had instructed the driver to drive with him on the back. Consequently, both were dismissed.

Prior to 2017, it was standard practice for employees to stand on the back of the truck whilst it was in motion travelling from one location to another. On 30 May 2017, a Council employee engaging in this practice suffered a serious crushing injury to his hand. As a result of the incident, the Council reviewed the practice and determined to eliminate the risk by updating Safe Work Method Statements and physically removing the steps from the back of the trucks to eliminate access.

The employee acknowledged that the Council had deemed riding on the back of trucks while in motion to be unsafe and that the practise had been banned. Documentary evidence was provided confirming the employee had attended several Toolbox talks in 2018 and 2019 where the new requirements were explained in detail, as well as attending Code of Conduct training and safety refresher training.

The employee admitted that he had engaged in the banned practice contrary to the Council’s requirements on occasions other than 30 June 2020 and after the introduction of the Council’s prohibition of the practice. During the disciplinary investigation, when asked if it was his usual practice to stand on the back of the vehicle, he responded, “it depends if I’m in a hurry or traffic is behind me. Depending on the circumstances, I have got on the back even though there were no steps”.

Commissioner J. Webster rejected the employee’s claim that the decision to terminate was harsh in the circumstances. As she commented,

The applicant had an obligation to act in accordance with the respondent’s direction to not engage in the practice, clearly aimed at ensuring 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”.

She further commented that while he did not think he was acting unsafely,

This evidence demonstrated that the applicant held a cavalier attitude towards the applicant’s policies designed to keep him, his work colleagues and the general public safe. At the time of the incident, he acted as though the policy was optional, and he was able to dispense with it at his convenience.”

The application for unfair dismissal was dismissed.

Mr H v City of Sydney Council (2021) NSWIRC 1010 (9 February 2021)

For queries about misconduct, safety breaches, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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