The matter before the Commission is an unfair dismissal application by Phillip Grafton. Mr Grafton, who represented himself in these proceedings, was employed by the respondent, Waverly Council ('the Council'), for various periods between November 2010 and the date of his dismissal, 7 October 2016. The reason given by the Council for the summary termination of the applicant's employment was serious misconduct, being the applicant's failure, without any explanation, to comply with directions set out in a letter to him from the Council dated 16 September 2016.
The applicant seeks reinstatement to his former position and monetary compensation. The Council opposes the grant of any relief to the applicant and submits that the application should be dismissed.
This is the second proceeding in this Commission between these two parties. The first was heard and determined by Tabbaa C in Grafton and Waverly Council [2016] NSWIRComm 1029. That matter involved an application by the applicant for an order for reinstatement pursuant to section 242 of the Workers Compensation Act 1987. The Commissioner's decision rejecting that application, which I will refer to as Grafton No.1, was handed down on 6 July 2016.
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Background
The applicant was first employed by the Council on or about 15 November 2010 as a casual Summer Crew Cleaner in the Council's Parks and Gardens Operations. This employment came to an end on or about 26 April 2011. The applicant was re-employed in a similar capacity from about 3 November 2011 until about 15 April 2012.
On or about 16 April 2012, the applicant was employed by the Council on a full time ongoing basis in the position of Team Member, Public Place Cleansing. His rostered hours of work were from 7.00am to 4.00pm, Monday to Thursday, and 7.00am to 3.30pm on alternate Fridays. Every other Friday was taken as a Rostered Day Off ('RDO'). Making allowance for an unpaid half hour meal break each shift, the applicant's ordinary hours of work with the Council were 76 per fortnight or 38 per week, on average. Overtime was regularly worked after 4.00pm on Thursdays.
At the time the applicant commenced full time employment with the Council, he was also working as a Nightfiller/Shop Assistant at Woolworths Marrickville store. His hours of work at Woolworths were 9.00pm to 5.00am on Friday and Saturday, 10.00pm to 5.00am Sunday, 9.00pm to 4.00am Monday and 11.00pm to 5.00am Tuesday, totalling 36 hours per week. These hours subsequently increased to 38 per week with the result that the applicant was working two full time jobs averaging a total of 76 hours per week.
On or about 30 April 2014, whilst working at the Council, the applicant sustained an injury to his right wrist. He was certified as having no capacity for work from 30 April to 30 May 2014. It was at about this time that the Council, at a senior level, became aware that the applicant had been working full time for Woolworths while he was employed full time at the Council. It was the Council's understanding that the applicant's hours of work at Woolworths, immediately prior to him sustaining his injury, were 5.00pm to 1.00am, Friday through to Tuesday.
On or about 3 June 2014, the applicant met with the Council's Injury Management Specialist, Ms Jackie Fletcher, to develop a Return to Work Plan. On or about the same day, the Council's General Manager, Mr Athanasios (Arthur) Kyron, wrote to the applicant. Mr Kyron referred to the Council's responsibility to ensure that the applicant was not exposed to health and safety risks associated with fatigue as a result of working full time at Woolworths and at the Council. The applicant was told that he must complete and return a secondary employment form. The applicant did not complete the form because he did not believe he had to.
Subsequently, on or about 12 June 2014, the applicant was certified as unfit for any work until 30 June 2014.
On 28 July 2014, Mr Kyron wrote again to the applicant. That letter stated, in part:
Council became aware of your secondary employment on 19 May 2014 when you attended a meeting regarding your injury. At this meeting you informed Council that you also work at Woolworths, working each week Friday through to Tuesday, commencing your shifts at 5pm and finishing at 1am. As a result, across both positions, you work 78 hours per week excluding travel time to and from work. I am concerned that those hours are excessive.
The WHS Acts, Regulations and Codes of Practice requires employers to, so far as is reasonably practicable, provide employees with safe systems of work. The number of hours that an employee is required to work and the scheduling of those hours of work form part of the system of work for that employee. While the hours you work for us are reasonable when you add the secondary employment hours the total hours worked is excessive.
Working hours must therefore, so far as is reasonably practicable, be designed and managed in such a way so as to minimise the impact of working hours on the health safety and welfare of employees.
Similarly, the WHS Acts, Regulations and Codes of Practice requires employees to take reasonable care to protect not only their own health and safety but the health and safety of others at work. For the purpose of working hours this means that employees must: comply with the arrangements that have been put in place by their employers to minimise any risks associated with working hours;
Further, the Local Government (State) Award 2014 Clause 18A(viii) states the following:
"Ordinary hours of work shall not exceed twelve (12) hours in any one-day exclusive of unpaid meal breaks"
Your current working arrangement at Woolworths when combined with your hours of work at Waverly Council does not meet the requirements under the Local Government State Award 2014, the WHS Act and Regulations.
Council would be negligent if it supported your current working arrangement. Therefore I am writing to inform you that your secondary employment at Woolworths has been denied. Further, should you have notified Council via the required process set out in the Council's Code of Conduct your secondary employment application would have been denied.
Over the next few months, the applicant continued to be certified as only having limited work capacity subject to significant pushing and pulling restrictions, lifting restrictions and other restrictions, including the number of hours that could be worked per day and the number of days that could be worked per week.
The applicant returned to full time hours with the Council from 15 September 2014. Ms Christine Schlesinger, the Council's Manager - Risk and Safety, understood that, at that time, the applicant was no longer performing work for Woolworths and that there would not be any fatigue concerns which would prevent him returning to full time work with the Council, albeit subject to some remaining physical restrictions.
On 25 September 2014, the Council became aware that the applicant had resumed working full time for Woolworths, albeit on light duties.
On 2 October 2014, Ms Kristina Forsberg, HR Partner at the Council, wrote to the applicant and advised that he was required to attend a meeting on 8 October 2014 to discuss his full time employment at the Council, working Monday to Friday 7.00am to 4.00pm, and at Woolworths working Friday to Tuesday, 5.00pm to 1.00am. The applicant was advised that the matter was being dealt with under the disciplinary procedures in the Local Government (State) Award.
The applicant attended this meeting with his wife, Ms Karryn Grafton. It is common ground that, at this meeting, the applicant stated that he was there to listen and refused to answer questions about his employment at Woolworths. In a follow up letter dated 8 October 2014, the Council stated that, to it's knowledge, the applicant was working at Woolworths on Friday to Tuesday, from 5.00pm to 1.00am, in addition to his full time hours at the Council. The letter went on to state:
In a typical two weekly cycle this work pattern displays the following outline:
• 152 working hours, excluding lunch breaks and other breaks.
• 14 working days with no days off from work.
• Five nights with a four hours sleep pattern.
• 16 hours working day for five days.
The applicant was advised that the Council had identified "reasonable foreseeable factors which can substantially increase the risk of fatigue in your current work pattern". The applicant was further advised that he was required to attend another meeting on 15 October 2014. The letter stated:
The topic to be discussed at the meeting is in relation to your decision regarding which employer, Woolworths or Waverly Council, you would like to maintain your full-time employment with.
As discussed at the meeting on Wednesday 8 October 2014 there must be a break of at least 10 hours between shifts regardless of where you have worked the shift preceding the next shift, at Woolworths and/or at Waverly Council.
The applicant again attended the meeting with his wife. In a follow up letter to the applicant dated 15 October 2014, the Council set out a summary of the meeting, which had occurred on that day, in the following terms:
Summary of the Meeting
At the aforementioned meeting Ms Forsberg enquired if you had made a decision in relation to your working hours at Woolworths and Waverly Council.
You replied that you were happy with the current arrangement.
Ms Forsberg clarified that you are maintaining your position to continue working 76 hours per week, 7 days per week, 16 hours per day with a four hour sleep pattern for two or three nights.
You responded that it was correct.
Ms Forsberg enquired if the working pattern regarding your roster at Woolworths, detailed in the letter dated 8 October 2014, was correct.
You responded that you did not want to answer that question.
Ms Forsberg asked you if you refused to answer the question to which you replied yes.
Ms Forsberg informed you that Council would be contacting Woolworths to clarify your working pattern with Woolworths.
Ms Grafton informed Mr Hutcheson and Ms Forsberg that Mr Grafton is not providing his consent for Council to contact Woolworths.
During these proceedings, the applicant confirmed that this summary of the meeting was "possibly correct" and stated that he has never given the Council permission to contact Woolworths.
The letter went on to advise the applicant that the Council had decided to reduce his weekly hours from 38 to 15.2, to be worked over two days, 7.6 hours per day on Thursday and Friday. It was also proposed that, although his "position hours" were not redundant, the Council would pay the equivalent redundancy entitlement in accordance with the Local Government (State) Award, being four weeks' notice and 13 weeks' redundancy payment based on 22.8 hours per week.
What then followed is set out in the decision of Tabbaa C in Grafton No.1 as follows:
19. Mr Grafton rejected the proposal to reduce his working hours in correspondence dated 24 October 2014. He denied that there was a conflict of interest involved.
20. Ms Schlesinger, in consultation with Ms Forsberg, formed the view that it was not appropriate to have Mr Grafton perform work in excess of the Thursday and Friday hours offered until further information was available as to his shift patterns with Woolworths. Mr Grafton was forwarded correspondence dated 27 October 2014 by Mr Mark Wood, then Director-Waverley Renewal in which it was pointed out that the issue was not conflict of interest. Rather, it was the existence of a significant work health and safety risk and the duty of care owed by Council to minimise the risk. He was advised that he would remain on stand down with pay until 5 November then commence part-time employment on 6 November 2014 working 15.2 hours per week over two 7.6 hour days (Thursdays and Fridays). He was also to be paid redundancy pay as outlined above. He was advised that the decision to reduce his hours would be reviewed if he were to provide information of a work pattern with Woolworths that was different to that available to Council.
21. On 6 November 2014, Mr Grafton forwarded an email to StateCover advising that his last shift at Woolworths was 4 November. He was advised, whilst at the store on 5 November 2014 that he would not be allowed to return to work until he was declared fully fit to resume full duties. Ms Schlesinger, in consultation with Ms Forsberg considered that there was no reason why Mr Grafton cannot be returned to full-time hours providing confirmation of the advice was received from Woolworths. Ms Forsberg emailed Mr Grafton on 10 November 2014 advising that as soon as formal confirmation was received from Woolworths as to the above, his full-time hours would be rostered. He was put on notice, however, that if he returned to work as per the previous schedule with Woolworths in the future, then "the safety measures as discussed and detailed in the letters dated 8, 15 and 27 October 2014" would be put in place. That advice was confirmed in a letter to Mr Grafton from Mr Wood dated 11 November 2014 and in an email from StateCover dated 25 November 2014.
22. In the absence of any response from Mr Grafton, a further email was forwarded by StateCover dated 26 November 2014 pointing out that his entitlement to workers' compensation benefits were unable to be calculated in the absence of the information sought.
23. Mr Grafton confirmed that he ceased working for Woolworths on 5 November 2014 and recommenced on 4 April 2015.
24. On or about 4 December 2014, Mr Grafton sought annual leave for the period 11 and 12 December and 18 and 19 December 2014. The former was approved.
25. On or about 18 December 2014, Mr Grafton submitted, and was approved, annual leave on 15 January 2015.
26. As Mr Grafton had not complied by 21 January 2015, Ms Schlesinger formed the view that it was quite likely that he was continuing to perform work for Woolworths given his reluctance and failure to provide evidence to the contrary. Mr Grafton was asked to attend a meeting on 22 January 2015. Later that day, Ms Schlesigner wrote to him confirming that although he had attended Council with his wife at the stated time, he had declined to attend the meeting because adequate written notice had not been provided. He was informed that Council was no longer able to provide him with suitable duties due to operational requirements. He was advised not to attend for work until relevant specialist advice has been received from him declaring him fully fit and without risk for re-injury to undertake the inherent requirements of his role. That advice would be reviewed and confirmed by an independent medical expert arranged by Council. He was provided with notice of a meeting on 7 May 2015.
27. On 6 February 2015, Ms Forsberg wrote to the Applicant inviting him to a meeting on 12 February 2015 to commence the Council's resolution process in relation to a grievance he had lodged against it with the Department of Industrial Relations. In attendance at that meeting and subsequent meetings on 24 February and 19 March 2015 were Mr & Mrs Grafton, Ms Patricia Hatzigiannis (Manager - People, Culture and Learning) and Ms Forsberg.
28. On 7 May 2015 Ms Jackie Fletcher, Injury Management Specialist, wrote to Mr Grafton in response to his query. Ms Fletcher clarified that the next step in the management of his injury was a functional assessment followed by an Independent Medical Examination. The functional assessment is to obtain a detailed report to assist doctors to determine restrictions or risks. Council was seeking expert advice from an Orthopaedic Surgeon specialising in hand and wrist surgery on his ability to return to his pre-injury duties safely and sustainably given the outcome of the functional assessment.
29. In an 8-page correspondence dated 11 May 2015, Ms Forsberg responded to grievances raised by Mr Grafton in the meetings on 12 and 24 February and 19 March 2015. Included in the correspondence was a confirmation that Mr Grafton was permitted to return to his full-time employment at Waverley Council if he provided evidence to substantiate that he was not currently employed at Woolworths. Once again, Mr Grafton refused permission to Council to contact Woolworths in that regard. Ms Forsberg set out the Award prescription regarding 10 consecutive hours off duty requirement.
30. On 29 June 2014 (2015), Council was served with a complaint filed by Mr Grafton with the Anti-Discrimination Board of NSW (ADB) on 18 June 2015 alleging direct discrimination in his employment at Waverley Council on the ground of "physical" disability in the period September 2014 until 18 June 2015. It was revealed in the complaint that the Woolworths job has been held continuously since about August 2007, three years before commencing employment with the Council. The detailed response provided to the ADB by the General Manager dated 23 July 2015 is noted. A conciliation conference was held on 1 September 2015 and a confidential settlement was arrived at as a result.
31. On 18 September 2015, Mr Jauncey wrote to Mr Grafton's then solicitor, Mr Chris McArdle of McArdle Legal, advising that Council had retained Medicins Legale to review potential fatigue issues arising from his employment with Woolworths and identifying whether revised proposed working arrangements with Woolworths might lessen or eliminate potential fatigue impacts. Mr Grafton was asked to provide a Job Description and the Task Analysis for his role with Woolworths. Mr Grafton confirmed that no response was ever provided to that correspondence and the requisite information was not provided.
32. Further correspondence dated 14 October 2015 was forwarded by Mr Jauncey to Mr McArdle seeking the information sought in the 18 September 2015 and subsequent telephone conversations with him. It was pointed out that the failure to respond was delaying consideration of whether potential return to work arrangements might be able to be accommodated by Council (either in full or in part). Mr Grafton confirmed once again that no response was ever provided to that correspondence and the requisite information was not provided.
33. Mr Grafton confirmed, during cross-examination that he not only did not provide the information sought, but he made no attempt to ask Woolworths to provide formal confirmation of his hours and shifts.
34. Mr Grafton also confirmed that he now works from 7 pm to 3 am on 4 days at Woolworths and 9 pm to 3 am on the fifth day (Tuesdays).
35. An extract from Council's payroll records demonstrate that Mr Grafton was paid wages throughout the period 3 November 2014 to 25 January 2015; he received an increase in his hourly rate as a result of an increase to award wages effective from 13 July 2015; and he has continued to accrue annual leave and long service leave since 22 January 2015 despite not performing work for Council since that time.
36. Mr Grafton agreed that he was not able to produce any correspondence or refer to any discussions that would confirm that he was ever advised that he was dismissed from employment. He also agreed that he has not been asked, at any time, to return any property which may have been issued to him in his capacity as an employee.
37. Ms Schlesinger pointed out that, even if he were to believe that he was dismissed, he has not made any attempt, nor have any attempts being made on his behalf, seeking that he be reinstated or re-engaged in the role of Team Member, Public Place Cleansing.
The applicant's application for an order for reinstatement pursuant to section 242 of the Workers Compensation Act was determined by Tabbaa C in the following terms:
44. The evidence indicates that, as at 19 May 2014, on the information available to the Council and not refuted in these proceedings, Mr Grafton would leave work at Woolworths at midnight or 1.30 am (depending on the day in question) and commence his day shift at the Council at 7 am - that is, a 5.3 hour break at the maximum, less the period required in travelling from Dulwich Hill to Waverley on push bike and train. He left the Council at 4 pm to arrive at Marrickville Woolworths to commence his shift at 5 pm. Mr Grafton counted his lunch and rest breaks as part of the requisite hours off work.
45. Mr Grafton explained that more recently his hours of work at Woolworths have been altered so that he commences at 7 pm and finishes at 3 am (except for Tuesdays which are 9 pm to 3 am) which would mean a 4 hour break (including travel time, meals, clothing changes and so on) before he commences at the Council at 7 am and a 3 hour break between work at the Council and commencement of his next shift at Woolworths. I agree that those hours are an even greater fatigue risk.
46. Mr Grafton is to be commended for his dedication and hard work. I do not doubt whatsoever that the impetus for the arduous schedule he has taken on is the support of his family and the fact that he is required to achieve a certain annual income in order to remain in Australia. He has provided the reasons behind that need.
47. Nevertheless, the Council has a statutory duty of care towards Mr Grafton and other employees and the hours he was working posed a significant work health and safety risk.
48. It was explained to Mr Grafton that if he agreed to attend a fatigue specialist, paid for by the Council, and it is determined that he is physically fit to sustain such a schedule, then approval would be given for secondary employment. Mr Grafton not only declined that offer but confirmed that he considered his employment with Council to be his "secondary" employment.
49. Having considered the evidence detailed above, I am not able to find any evidence of a dismissal of Mr Grafton. He has continued to be offered the option of returning to full-time employment with Council if he was to reduce his shifts with Woolworths to an acceptable level that would allow compliance with the Award - that has been declined. Council offered to reduce his hours to keep him in employment while complying with the Award and its occupational health and safety obligations - that is also not acceptable to Mr Grafton. He has continued to accrue annual and long service leave in the interim and has not been asked to return any property belonging to the Council.
50. Even if any of the actions of the Council were considered to be a dismissal of Mr Grafton, there was no evidence before the Commission of any request for reinstatement or re-employment.
51. The requirements of Part 8 of the Workers' Compensation Act 1987 have not been met by Mr Grafton.
Decision
52. The Commission lacks jurisdiction to hear and determine the application brought by Mr Grafton pursuant to section 242 of the Workers' Compensation Act 1987.
53. The said application is hereby dismissed.
Following the decision of Tabbaa C in Grafton No.1, by letter dated 11 July 2016, the Council directed the applicant to participate in an assessment with Dr Andrew Keller, Occupational Physician of Medicins Legale, for the purpose of the Council obtaining a report on the potential fatigue issues which might arise if the applicant performed work for both Woolworths and the Council. The applicant was also directed to provide the Council, by 22 July 2016, with:
1. The Job Description and Task Analysis for his role at Woolworths (or if he could not obtain those documents, a statement setting out the steps he had taken, including the persons he had approached in order to try to obtain the documents, and the responses given by Woolworths); and
2. Details of any physical restrictions or limitations to which he might have been subject in performing his role at Woolworths.
The applicant participated in the assessment with Dr Keller on 2 August 2016. In his report of the same date, Dr Keller stated as follows:
While it is Mr Grafton's position that he is physically and mentally fit to work the two full time roles it is clear to me that on many shifts there is a gap of only 4 hours during which he has at least 90 minutes of travel and then meal, dressing and personal hygiene time that take away from the sleep break. Whilst he states that this does not affect his capacity for work or his health it is my opinion as an occupational physician that this level of sleep on a regular basis is likely to reduce his alertness, his capacity to perform work at a normal work rate and increase his risk of injury and accident. Mr Grafton also makes the point that his role is not a safety critical role with no use of motor vehicles or dangerous equipment and requires no high levels of concentration. In my opinion however his work still involves access along roadsides where a loss of concentration or alertness could lead to him becoming involved in motor vehicle accidents. It is also likely that a chronic level of sleep deprivation of the level that he reports is likely to lead to the long term illnesses reported in the above studies.
Whilst it is outside of my capacity as an occupational physician to state that Mr Grafton is unfit to work two full time roles it is my opinion that the body of scientific knowledge supports that such a work pattern would be a risk to himself for injury and detrimental to his general health.
In a supplementary report dated 16 August 2016, Dr Keller stated:
The specific recommendation to council would be to apply their award and its restrictions on working hours to the total hours and roster of the two declared employments of Mr Grafton. The restrictions of their award include, but are not limited to:
• Ordinary hours of work should be up to 38 hours per week or 76 hours per fortnight
• Ordinary hours of work should not exceed 12 hours in any one day exclusive of an unpaid meal break
• Additional or overtime hours can be worked by agreement between the employer and the employee but should avoid unreasonable hours having regard to the risk to the employee, their family and the needs of the workplace
• Workers performing hours of overtime after an ordinary shift or two consecutive ordinary shifts without receiving 10 consecutive hours off duty should be released from completion of such overtime to have 10 hours off duty without loss of pay.
On 16 September 2016, the Council wrote to the applicant and referred to the two reports from Dr Keller. The Council indicated that it was prepared to return the applicant to full time work if he reduced his hours of work with Woolworths to no more than 4 hours on Monday and Tuesday nights (5.00pm - 9.00pm) and on those Friday nights when the applicant was not scheduled for an RDO (5.00pm - 12.00 midnight). The Council did not seek to impose any restriction on the hours the applicant worked after midnight on Friday, but stipulated that he should not work past 9.00pm on Sunday to ensure that he had a 10 hour break before starting work with the Council at 7.00am on Monday morning.
The letter of 16 September 2016 also directed the applicant to provide certain information about his work pattern at Woolworths and to confirm his commitment to reduce his hours at Woolworths in the manner proposed by the Council. He was also directed to provide the Council with an outline of the steps he had taken to reduce his hours and the contact details of a person at Woolworths who was in a position to discuss the applicant's work arrangements and the proposed revision to them. These directions, which are set out in full at paragraph 37 below, were to be complied with by 28 September 2016.
The 16 September letter was emailed to the applicant and sent by registered post to his post office box and by express post to his residential address. The applicant claimed that he did not receive this letter until 30 September 2016. In any event, the applicant did not comply with the directions the Council had given to him.
On 30 September 2016, the Council wrote again to the applicant noting his failure to respond to the correspondence of 16 September and his failure comply with the directions which had been given to him. The applicant was given until 4 October 2016 to provide the Council with an explanation for his failure to comply with the directions, or with further information which he might wish the Council to consider. He was advised that, if no response was received by the stipulated time, then the Council would proceed to terminate his employment. This letter was emailed to the applicant and delivered to the applicant's residential address by courier. No response was received by the Council from the applicant.
On 7 October 2016, a letter dated 6 October 2016 and signed by Mr Peter Brown, the Council's Acting General Manager, terminating the applicant's employment, was forwarded to the applicant by email, by courier to his home address, by express post to his home address and by express post to his post office box. This letter stated, in part:
In the circumstances, and especially given the previous history of this matter, Council has determined that your failure to comply with the directions set out in the letter of 16 September 2016, without any explanation, amounts to serious misconduct. Accordingly, Council has decided to summarily terminate your employment under clause 38(iii) of the Local Government (State) Award 2014.
Ultimately, the Council received a 16 page letter from the applicant dated 17 October 2016. In that correspondence, the applicant pointed out that the Council and Woolworths were covered by separate and distinct industrial instruments and that superannuation contributions from both employers were paid to different funds. The applicant also made reference to "fatigue regulations" governing Heavy Rigid (HR) drivers and contrasted that work to his own low risk, low fatigue job. He accused the Council of deciding to make working more than 48 hours per week illegal, thus making the applicant "ineligible for WorkCover". Reference was also made to the applicant's sick leave record, his state of fitness, privacy legislation and an ICAC report on the regulation of secondary employment for members of the NSW Legislative Assembly. The applicant asserted that no conflict of interest arose out of his employment with the Council and with Woolworths. Under the heading "EXPECTED OUTCOMES" the following were listed:
a. Immediate reinstatement in position as public place cleansing team member in the Bondi Junction Retail precinct.
b. Full payment for all loss of income since my injury with Waverly council occurred
c. Payment for harassment, bullying and discriminatory behaviour Waverly council has engaged in towards myself since my injury
On 24 October 2016, Mr Brown responded to the applicant in the following terms:
I refer to your letter dated 17 October 2016 (received on 19 October 2016).
It seems that, even now, you remain entirely unwilling to take any steps to modify your hours of work with Woolworths.
Your letter does not even identify your current work pattern with Woolworths. Nor does it identify any contact person at Woolworths with whom Council is able to discuss your working arrangements and the management of potential fatigue issues. There is absolutely nothing in the Australian Privacy Principles established under the Privacy Act 1988 which prevented you from providing such information. In this regard, Council refers to previous comments set out in the attachment to its letter of 11 July 2016.
In the circumstances, Council is not prepared to reinstate you in employment, or otherwise revisit its previous decision to terminate your employment. Nor does Council believe there to be any basis for your other demands.
On 28 October 2016, the applicant filed his unfair dismissal application which is now before the Commission. The application was the subject of a conciliation conference before a member of the Commission but was not settled. Arbitration of the application proceeded before me over two days, 16 and 17 March 2017.
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The proceedings
The applicant's primary witness statement was filed on 3 February 2017 (Exhibit 1). That statement comprised 106 pages. Filed with this witness statement were eight bound volumes of documents described as exhibits A-H. These eight volumes comprised 1,924 pages. Buried in these pages was the applicant's case that the Council had no right to interfere in his working arrangements with Woolworths and no right to dismiss him for resisting the Council's attempted interference.
The Council's evidentiary case comprised a 16 page witness statement from Ms Schlesinger together with 52 annexures (Exhibit 3). That material chronicled the interactions between the applicant and the Council from the time of his workers compensation injury in April 2014 through to the time of his dismissal in October 2016.
The applicant responded with a witness statement in reply plus a further 129 pages of annexures (Exhibit 2).
The hearing of the matter occupied two full days, the bulk of that time being occupied with cross-examination of the applicant on the vast array of material presented by him in support of his application.
Given that the applicant was self-represented, I make no criticism of him in relation to the manner in which he presented his case, but I do observe that the issues in this matter are not of such complexity as to justify the vast volume of documentary material produced in support of the application.
[4]
Was the dismissal of the applicant harsh, unjust or unreasonable?
The starting point for consideration in this matter is the reason given by the Council for dismissing the applicant. That reason was his failure to comply with the following directions contained in the letter to him from Ms Emily Scott, A/Director, Waverly Renewal, dated 16 September 2016:
1. by 28 September 2016, you are to provide me by email with a written outline of your current work pattern with Woolworths showing your starting and finishing times on each day of the week and also showing what breaks are taken each day (and whether those breaks are paid or unpaid) together with any anticipated future changes to that work pattern;
2. by 28 September 2016, please confirm to me by email whether or not you are prepared to commit to the principle that you will do all that is necessary to reduce your hours with Woolworths broadly in accordance with the parameters I have outlined (meaning, in effect, that you accept that your employment with Council is your "primary" employment, rather than your "secondary" employment);
3. by 28 September 2016, you are to provide me by email with an outline of all steps you have taken to progress an adjustment of your hours with Woolworths, including identifying who you have spoken to, what requests you have made of them, and what answers have been given to you (and you are to provide further updates by email not less than every 7 days thereafter until a resolution is reached);
4. by 28 September 2016, you are to provide me by email with the contact details of a person at Woolworths who is in a position to discuss your work arrangements at Woolworths and the proposed revisions to them (including discussing the potential impact of any work for Woolworths on a Saturday morning, and discussing potential monitoring strategies to minimise the risks of fatigue even under an adjusted work pattern); and
5. if you (or Woolworths) wish to propose some amendments to the working pattern which might result in you having somewhat less than 10 consecutive hours off duty on some days, or in you working somewhat more than 12 ordinary hours on some days, then you should provide me with any such proposed amendments by not later than 28 September 2016.
The next matter for consideration is whether or not these directions from the Council to the applicant were lawful and reasonable. This issue concerns the extent to which the Council may legitimately interfere in the employment relationship between the applicant and Woolworths.
Section 353 of the Local Government Act 1993 is in the following terms:
353 Other work
(1) The general manager must not engage, for remuneration, in private employment or contract work outside the service of the council without the approval of the council.
(2) A member of staff must not engage, for remuneration, in private employment or contract work outside the service of the council that relates to the business of the council or that might conflict with the member's council duties unless he or she has notified the general manager in writing of the employment or work.
(3) The general manager may prohibit a member of staff from engaging, for remuneration, in private employment or contract work outside the service of the council that relates to the business of the council or that might conflict with the member's council duties.
(4) A member of staff must not engage, for remuneration, in private employment or contract work outside the service of the council if prohibited from doing so under subsection (3).
Clause 5.20 of the Council's Code of Conduct states:
If you are a member of staff of Council considering outside employment or contract work that relates to the business of Council or that might conflict with Council duties, you must notify and seek approval of the General Manager in writing.
The applicant has, since June 2014, refused to seek the General Manager's approval for his employment with Woolworths. He has consistently maintained that there is no 'conflict of interest' between his two jobs. However, the wording of the legislation and the Code of Conduct is expressed in terms of situations where the private or outside employment might conflict with the employee's 'council duties'.
In her decision in Grafton No.1, Tabbaa C described at [44]-[47] the hours that the applicant was then working at Woolworths and stated:
45 ….. I agree that those hours are an even greater fatigue risk.
…………………
47 Nevertheless, the Council has a statutory duty of care towards Mr Grafton and other employees and the hours he was working posed a significant work health and safety risk.
As at August 2016, the Council was in possession of the opinion of Dr Keller that the applicant's pattern of working two full time jobs would be a risk to himself of injury and detrimental to his general health.
In the face of that opinion, it would have been grossly negligent on the part of the Council to allow the applicant to return to full time work with the Council and, at the same time, to continue to work full time with Woolworths.
The directions issued by the Council to the applicant in the letter of 16 September 2016 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 directions were also manifestly reasonable. The Council did not direct the applicant that he was not to perform any work for Woolworths. The direction was to reduce his hours at Woolworths to a level consistent with Dr Keller's opinion as to the number and pattern of hours the applicant could work without risk to his safety and the safety of others. The approach of the Council was also reasonable in that it disclosed a willingness to engage with the applicant, and with Woolworths, in relation to any amendments to the arrangement which the Council had proposed.
The next matter which requires consideration is the applicant's failure to comply with the directions which had been given to him by the Council.
Despite the considerable efforts by the Council to ensure that the applicant received the Council's letter of 16 September 2016, the applicant claimed that he did not receive it until 30 September, two days after the date stipulated by the Council for the applicant to comply with the directions. However, even at that point, the applicant took no steps to comply with the directions and did not respond to the Council until 17 October 2016, 10 days after he had been dismissed.
It appears from the applicant's 16 page letter to the Council of 17 October 2016, and from the material filed in support of his application to this Commission, that the reasons for the applicant's refusal to comply with the Council's directions may be summarised as follows:
1. The work that the applicant performed for the Council and the work he performed for Woolworths are covered by different industrial instruments.
2. Both employers make superannuation contributions to different superannuation funds.
3. Regulations which govern the hours that drivers of heavy vehicles may drive, allow those drivers to drive for longer than the hours which the Council was proposing for the applicant.
4. The Council has limited the applicant's working hours to 48 per week in order to make him "ineligible for WorkCover".
5. Privacy legislation prevents Woolworths from providing the Council with information about the applicant's working arrangements with Woolworths.
6. The Council lied to the Commission in Grafton No.1 as to his continuous employment relationship with the Council.
7. The Council's request for the applicant to attend a medical assessment was unlawful.
The applicant's letter to the Council also stated in part:
In summary
a. As I am not under fatigue management due to doing low risk, low mental fatigue work and if I was my total daily, fortnightly and 28 day hours would still be reasonable if I was in high risk, high mental fatigue employment such as and HR driver. I feel that since my injury Waverly is making up conditions that do not exist for the low mental fatigue, low risk environments I work in and then applying them to me in my employment with them which is discriminatory, has no basis in law and is unreasonably imposing a huge financial penalty on me when I have not breached any conditions of my employment.
There are NO conflicts of interest
There are NO fatigue management issues
There are NO WHS issues with my work
There is NO basis for Waverly council to cut my hours and days
There is NO basis for the way I have been treated since my injury
During his cross-examination, the applicant was taken to that part of the letter to him of 30 September 2016 which stated as follows:
If you (or Woolworths) wish to propose some amendments to the working pattern which might result in you having somewhat less than 10 consecutive hours off duty on some days, or in you working somewhat more than 12 ordinary hours on some days, then you should provide me with any such proposed amendments by not later than 28 September 2016.
The following exchange then occurred:
Q. Your position is that you don't wish to propose any amendment because your position is that you just will not change your hours at Woolworths.
A. Well the thing is I have that time off from Waverley.
Q. Mr Grafton your position as at the time you received this letter and at all times thereafter is that you are not prepared to take any steps to change or reduce your fulltime hours with Woolworths, that's your position isn't it?
A. My Woolworths' hours do not affect at all.
Q. Mr Grafton, and I'm not asking you why your position is that you will not seek to make any change to your hours with Woolworths to accommodate your work with council, that's your unwavering position isn't it?
A. There is no need to change those hours.
Q. And as a result of that belief you are not going to do it, that's the truth isn't it?
A. Well from what they're saying I do have 10 consecutive hours off duty.
Q. No Mr Grafton, you are not prepared to change or seek to process any change of your fulltime hours with Woolworths in order to accommodate your work with Council, you just will not do it, that was your position then and it's your position now. Isn't that true?
A. Well I believe there is no conflict of interest there, there is no reason to do that.
Q. And therefore, because of that belief, your position is that you will not full stop.
A. As far as I'm aware yes, I will not.
I took it from the applicant's responses that, if he were to be reinstated to his full time position at the Council, he remained determined to continue working full time for Woolworths.
I find that the applicant's arguments in opposition to the Council's attempts to restrict his hours of work at Woolworths, are misconceived.
Firstly, the fact that the applicant's work at the Council and at Woolworths was covered by different industrial instruments is entirely irrelevant to the issues to be determined in this matter. Equally irrelevant is the fact that the two employers paid superannuation contributions on behalf of the applicant to two different funds.
Secondly, the Council had a legitimate interest in the applicant's working arrangements at Woolworths. The Council must ensure, so far as is reasonably practicable, the health and safety of the applicant, his fellow workers and the general public (section 19, Work Health and Safety Act 2011).
The applicant's working pattern just for Sundays through to Wednesdays each week, which he was working at the time he gave his evidence in Grafton No.1, was as follows:
• Woolworths from 7.00pm Sunday to 3.00am Monday then a four hour break;
• The Council from 7.00am to 4.00pm Monday then a three hour break
• Woolworths from 7.00pm Monday to 3.00am Tuesday then a four hour break;
• The Council from 7.00am to 4.00pm Tuesday then a five hour break;
• Woolworths from 9.00pm Tuesday to 3.00am Wednesday before backing up four hours later to work at the Council from 7.00am to 4.00pm Wednesday.
This is a working pattern which presents obvious potential fatigue concerns. Over this 69 hour period from 7.00pm Sunday to 4pm Wednesday, the applicant worked six shifts totalling 49 hours including meal breaks. The five breaks between shifts, during which he was required to travel between his home and places of work as well as eat, sleep and attend to other personal matters, ranged in duration from three to five hours.
Contrary to the submission of the applicant, this is not a work pattern that the driver of a heavy vehicle would be permitted to work. For example, the "Heavy vehicle driver handbook" published by NSW Transport, Roads and Maritime Services, stipulates that a solo driver of a fatigue regulated heavy vehicle is limited a maximum work time of 14 hours, and is required to have 7 continuous hours of stationary rest, in each 24 hour period.
Of more relevance is the opinion of Dr Keller set out at paragraphs 22-23 above. Dr Keller has raised real concerns about the risks posed to the applicant, and to others, from the potential fatigue consequences of applicant's work pattern involving two full time jobs. It would have been irresponsible for the Council to ignore the opinion of Dr Keller.
Thirdly, the Council went to extraordinary lengths to accommodate the applicant's desire to work for the Council and for Woolworths. Contrary to the applicant's claim that the Council had limited his working hours to 48 per week, the Council's letter to him of 16 September 2016 proposed that he could work his normal full time roster at the Council, but that his hours of work at Woolworths should be limited as follows:
• Monday - 4 hours, 5.00pm - 9.00pm;
• Tuesday - 4 hours, 5.00pm - 9.00pm;
• Friday, when not scheduled for an RDO at the Council - 4 hours, 5.00pm - 12.00 midnight. Saturday morning - unrestricted subject to discussion between the Council and Woolworths about potential fatigue risks;
• Friday, when scheduled for an RDO at the Council - unrestricted. Saturday morning unrestricted;
• Sunday, unrestricted up to 9.00pm.
This working pattern would have allowed the applicant to continue to work full time with the Council and between 28 and 32 hours per week for Woolworths, subject to the availability of work with that employer. However, the applicant remained determined that he would accept nothing less than full time employment with both the Council and with Woolworths.
Faced with this intransigence, and with the risks identified by Dr Keller arising from the applicant working both jobs on a full time basis, the Council had no option other than to dismiss the applicant. In those circumstances that dismissal cannot be seen as harsh, unjust or unreasonable.
The applicant's unfair dismissal application is dismissed.
I so order.
John Murphy
COMMISSIONER
[5]
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Decision last updated: 24 April 2017