Hamlin v City of Sydney Council

Applicant's evidence and submissions

1. The applicant relied upon the following written statements in the proceedings, in addition to the ASOF: 1. Statements of the applicant filed 22 October 2020 (Ex A4) and 26 November 2020 (Ex A5); 2. Statement of Mr Shane Andrew Pinter, Organiser for the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (Union) filed 22 October 2020 (Ex A1); 3. Statement of Mr John King, employee of the respondent of 26 years and work colleague of the applicant (Ex A3).
2. The parties agreed that rather than take formal objection to each other's statements, they would allow each to be tendered into evidence without objection with submissions to be made as to the weight to be given to aspects of that evidence.
3. Each of the applicant's witnesses was cross-examined by the respondent.
4. The applicant filed a short outline of case on 22 October 2020 which was relied upon in the proceedings. The applicant also delivered oral submissions before the Commission.
5. The applicant advanced his case on the basis that the decision to terminate his employment was harsh in the circumstances. I have considered the applicant's submissions in support of his case below.

Respondent's evidence and submissions

1. In addition to relying upon the ASOF, the respondent relied upon the following written witness statements in the proceedings: 1. Statement of Ms Miriam Krohn, HR Business Partner, filed 20 November 2020 (Ex R5); 2. Statement of Mr Matthew Morris, City Cleansing Operations Manager, filed 20 November 2020 (Ex R6); and 3. Statement of Mr David Riordan, formerly the Director of City Services filed 20 November 2020 (Ex R7).
2. Ms Krohn and Mr Riordan were cross-examined by the applicant while the evidence of Mr Morris was admitted without objection and he was not required for cross-examination.
3. In addition, the respondent tendered into evidence correspondence between the Union and the respondent's solicitors requesting the production of certain documents by the applicant for the purposes of the proceedings: Ex R1, R2, R3 and R4. The correspondence was relied upon principally to demonstrate that the respondent requested access to certain medical information personal to him and that request was denied. I have referred to the respondent's arguments with respect to these exhibits later in this decision.
4. The respondent relied upon a short summary of respondent's case filed 20 November 2020. I have considered those submissions of the respondent as well as those made during the hearing below.

The relevant law

1. This matter is brought under s 84 of the Act, which relevantly provides as follows: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.
2. Section 88 of the Act provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given-its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
3. To be entitled to any remedy under the Act the onus is on the applicant to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
4. It is now well accepted that each of the words "harsh, unreasonable or unjust" requires discrete consideration. As stated by the Full Bench of the Commission in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
5. See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25]-[32] (Kaplan).
6. In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, the Full Bench made the following observations: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made."
7. In this matter, the applicant does not seek to argue that the termination of his employment was either unreasonable or unjust. Rather he advances his case on the basis that it is harsh.
8. The parties referred the Commission to a number of authorities providing guidance with respect to whether a decision to terminate an employee's employment is harsh.
9. In Kaplan, a Full Bench rejected the argument that a termination of employment in the context of a breach of a fundamental and essential term of the contract of employment "would necessarily not be harsh": see [25]-[32]. The Full Bench concluded that when considering the issue of harshness it is "unnecessary to go beyond" the following statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233]: "…even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine of the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence."
10. The Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61 described the assessment of whether or not a dismissal was harsh or not as requiring the Commission to "consider all of the relevant factors and weigh them in balance": at [65]. Although matters considered in other proceedings may be instructive and provide a frame of reference, ultimately the factors relevant to that determination of whether a dismissal is harsh will depend on the facts and circumstances of each case.
11. The respondent referred the Commission to the matter of Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166, where a Full Bench of the Fair Work Commission held at [24] (emphasis added): "… The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. …"
12. The respondent submitted that significant mitigating factors would therefore need to be present for the applicant to succeed in these proceedings.
13. Although this Commission is not bound by the decision in Parmalat, I consider that the passage relied upon by the respondent does no more than state the obvious - noting the overlapping nature of the "tautological trinity", the applicant will need to establish why it is harsh if there is a valid reason for the termination amounting to serious misconduct and no procedural defects in the process. Because 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. In any event, each matter must be dealt with on its own facts and I am of the view that the statement of principle in Parmalat does not suggest that process should be in anyway constrained.
14. I have applied these principles in considering the facts and circumstances of this matter.

Consideration

1. I turn to consider whether the applicant has discharged his onus in establishing that the termination of his employment was harsh. In this matter, I consider that there are a range of matters relevant to the determination of whether the decision to terminate the employment of the applicant's employment was harsh, including: 1. The nature and seriousness of the conduct 2. The remorse, contrition and insight of the applicant in respect of the conduct 3. The applicant's employment history, including his length of service and disciplinary background 4. The impact of the termination upon the applicant
2. I have considered these matters as they apply to the circumstances of the case, as well as the submissions of the parties below.

The nature and seriousness of the conduct

1. The facts of in the incident are not disputed and are set out above in the ASOF. It should be noted that the applicant rode on the back of the truck contrary to the respondent's policy on occasions other than 30 June 2020 and after the introduction of the respondent's policy prohibiting this.
2. The applicant was aware of the operating procedures applying to the mini compactor, including the change of practice from allowing employees to ride on the back of the truck. He attended sessions which addressed this issue on 7 June 2017 and 6 June 2018.
3. The applicant was aware of his obligations under the Code of Conduct having attended a refresher course on this as recently as 6 February 2020. The applicant also attended refresher training on work health and safety obligations on 19 August 2019.
4. 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.
5. 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.
6. 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: "take reasonable care for [his] own health and safety"; "take reasonable care that [his] acts or omissions do not adversely affect the health and safety of other persons"; "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".
7. 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."
8. The risks the policy was designed to address were not fanciful but real, having been established after two serious injuries were sustained in early 2017 involving the practice: Ex R7 at [6]-[7].
9. While these risks may not have been of concern to the applicant who had engaged in the practice seemingly without incident to himself for several decades, these were explained to him. These risks are ones where day to day, the likelihood of an incident is low, however, the potential consequences of such an accident is catastrophic and avoidable.
10. The applicant's actions in defying the respondent's direction to cease the practice were flagrant and deliberate and none of the reasons he gave for doing so could possibly have justified his decision to breach the safety protocol. He simply chose to ignore the direction for reasons of personal convenience. The applicant also brought another employee into his conduct, the driver of the mini compactor whose employment was also terminated.
11. I consider the incident that resulted in the termination of the applicant's employment to be serious misconduct that has fundamentally undermined the trust between the applicant and respondent.

The remorse, contrition and insight of the applicant in respect of the conduct

1. The applicant submitted that he had demonstrated remorse for his actions and the while he had engaged in conduct he knew to be prohibited the Commission should find that he is genuinely remorseful and this goes a significant way in terms of mitigation the underlying wrong-doing: see [17]-[19] of the applicant's short summary of case.
2. Both parties relied upon evidence before the Commission with respect to statements made by the applicant during the initial disciplinary meeting of 13 July 2020 and the show cause meeting of 23 July 2020 in advancing their arguments about the authenticity, motivation and extent of the applicant's contrition for his actions.
3. I find on balance it is unlikely that the applicant apologised during the meeting of 13 July 2020 (as was advanced by him in the proceedings) as this would stand in contradiction to the balance of what he admits saying in that meeting as set out at [30] of the ASOF above at [6], including that he had "done nothing wrong". He may well have said that, "This is never going to happen again. I don't need all this drama" as the applicant says, but these words do not constitute an apology: (see for example Tcpt, 28 January 2021, p 40 (13-21)). Rather, it is more likely that the applicant did not appreciate the drama of being disciplined for his actions, such that he assessed it would not be worthwhile doing it again. The applicant clearly did not believe that had done anything wrong at the time he was called into the meeting and on his own evidence, only became concerned once he received the letter requiring his attendance at the show cause meeting (see for example at Tcpt, 28 January 2021, p 40 (23-24)).
4. The applicant gave the following evidence in his written statement with respect to his reflections upon his actions at [14] and [16] of Ex A4: "I understand that what I did was wrong, the only explanation I have is that I have been working on the garbage trucks for so many years that maybe old habits die hard. That is not an excuse though, I knew that the City [the Respondent] had outlawed the practice and I shouldn't have done it. … I can honestly say that if I am lucky enough to bet my job back I will never ride on the back of the truck again. I am sorry that it happened and I have learnt my lesson."
5. However, before the Commission, the applicant gave evidence which reinforced his perspective of the incident expressed during the meeting of 13 July 2020, including that he was trying to the do the job "as quick and safety as possible" and that at the time, he did not think there was much danger in his actions at all (see for example, Tcpt, 28 January 2021, p 42 (25-33)).
6. 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.
7. The applicant did express contrition and remorse during the show cause meeting of 23 July 2020 (see the ASOF at [33] at [6] above) after receiving appropriate advice from Mr Pinter "that this was an opportunity for him to explain to his employer some sort of reasoning, some sort of rationale essentially to throw himself on the sword, be as open and honest as he possibly could, and to try to explain his actions": Tcpt, 28 January 2021, p 7 (25-27). I am of the view that the respondent's witnesses who attended that meeting gave truthful evidence that they believed that the applicant's responses were coached and that he was not genuinely remorseful. However, I also accept that the applicant regretted his actions by the time he attended that meeting and he was following the advice of his representative on what he needed to do to maintain his employment which he now understood to be in jeopardy. There was a factual contest before the Commission as to whether the applicant stated he would undertake any necessary training in the show cause meeting. I accept that the applicant may have stated that and whether the applicant did so or not in the meeting, he would be willing to undertake any training if he was reinstated.
8. That said, from the evidence of the applicant before the Commission, 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.
9. Despite what the applicant has said in his evidence about his understanding of the seriousness of his conduct, the applicant did not demonstrate sufficient insight into his transgression in these proceedings for there to be confidence he would not breach another safety protocol in the future if it was convenient for him to do so.
10. I note for completeness that I reject the applicant's submission that the applicant's admission of the conduct at all stages of the process weighs in favour of the decision being harsh. The applicant had an obligation to tell the truth with respect to his conduct at all times and it is at best a neutral factor that he admitted the conduct when asked.

The applicant's employment history, including his length of service and disciplinary background

1. The applicant has served the respondent for a very significant period of time, being over 40 years. It is evident that he has a strong work ethic. These are relevant matters to take into account in the context of considering whether the decision was harsh. The vast majority of the applicant's service was without incident.
2. Whilst I agree with the respondent that long service "cuts both ways" in that in some respects more might be expected of an employee of greater experience, it is important to acknowledge that a "fair go all round" dictates that lengthy service should make an employer more reluctant to declare the employment relationship no longer viable in the context of employee misconduct: see Australian Worker's Union New South Wales and BlueScope Steel [2011] NSWIRComm 1038; and Juleff v Linfox, IRC 4293/2004; Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 at [41].
3. Approximately 2 years prior to the incident, the applicant had received one written warning from the respondent on 7 August 2018, (the written warning). The written warning was issued in respect of an altercation that occurred between the applicant and Mr Gregory Spinks, who was the Acting Team Leader at that time. The events that led to the written warning being issued were described as follows: "● On Tuesday 19 June 2018 in a discussion with Gregory Spinks and Harin Perrera, you [the applicant] started arguing with Gregory regarding the additional runs that had been assigned to you [the applicant]. ● You [the applicant] spoke to Gregory in an aggressive and loud voice, asking who had asked Gregory to assign the additional work to you [the applicant] and why it cannot be assigned to someone else as you [the applicant] are sick of being the last truck back to the depot every day. ● You [the applicant] stood up to Gregory with a clinched fist standing close to his face in an intimidating manner. ● Harin had to intervene and block you [the applicant] and Gregory, requesting you to calm down."
4. The written warning documented the applicant's response to the incident that he had behaved that way, as it "is the way we have always done it, that's how we react and we forget about it."
5. The applicant submitted that the incident was unrelated and therefore his employment history could be described as exemplary.
6. In my view, the incident, though occurring some two years prior, is not irrelevant to the evaluation of whether the termination of employment was harsh. A prior warning need not be of exactly the same nature to remain relevant in an evaluation of whether a dismissal is harsh. This prior incident ought to have served as a warning to the applicant that he was required to comply with the respondent's Code of Conduct or there may be consequences to his ongoing employment.
7. Although the earlier written warning is relevant and I have taken it into account, I have done so taking into consideration that there was no evidence of any other disciplinary issue relating to the applicant for the balance of the very considerable period of the applicant's employment.
8. The applicant was well liked and supported by his colleagues as evidenced by the statement of his work colleague Mr John King and the partition signed by a number of colleagues disputing the fairness of the termination of his employment. They would like to see him back. However, this has very limited relevance to the question of whether the termination was in fact harsh.

Impact of termination upon the applicant

1. The applicant gave the following evidence in respect of the personal impact the termination of his employment has had upon him at Ex A4 [4]-[5]: "1. I have been working since I was fifteen years old, with the last forty years of my working life spent with the City. 2. I relied on work for financial security, social life, as well as a sense of purpose. 3. I can truly say that I miss going to work, and since I lost my job I have found it very hard to fill my days. I had planned on working for about another 5 years so my dismissal was a shock 4. Work with such a big part of my life. Until recently I work every public holiday and at least one day out of every weekend and when my father was on his deathbed in 2019 went to work in the morning the day that he died and visited him in the afternoon. Going to work is such a massive part of my life that I have found it very hard to adjust to not having a job. 5. Losing my job has had a big effect on my health. I have had trouble sleeping ever since council started asking me questions about me riding on the back of the garbage truck. I also find that I am more easily irritated since losing my job. I have recently been seeing a doctor because of these issues and he has prescribed me medication."
2. I accept the evidence of the applicant above that the termination of his employment has had a very significant personal impact upon him for the reasons he states.
3. The applicant annexed to his statement a medical certificate dated 30 September 2020, which provided: "HE SUFFERS FROM AN ADJUSTMENT DISODER WITH MIXED ANXIETY AND DEPRESSION REACTIVE TO WORK EVENTS"
4. The respondent relied upon correspondence between the parties wherein the respondent sought the production of medical consultation notes and/or records of any consultations the applicant had with his treating doctor between 8 July 2020 and the date of the correspondence, being 18 November 2020: see Ex R1. The applicant would not provide the consent sought for the respondent to obtain those documents and accordingly, the respondent made a submission to the effect that there should be little weight given to his evidence that the termination of his employment can be connected with the diagnosis given.
5. While I concur that there is not a proper evidentiary basis to conclude that the applicant has suffered the medical illness as a consequence of the termination of his employment because that evidence was not in a form that could be properly tested by the respondent, I accept that the termination has had an adverse impact upon the applicant's mental health and wellbeing.
6. The termination will also have a significant financial impact upon the applicant which I have taken into account: see A4 at [7]-[10] and [38] of the ASOF. The applicant was earning an ordinary hourly rate of pay of $33.98 per hour just prior to his dismissal. As a consequence of the applicant being dismissed for misconduct, he is no longer entitled to be paid out 2,237 hours of his personal leave. This has disentitled him to an amount in excess of $70,000 in remuneration (Tcpt, 28 January 2021, p 3 (15-16)).
7. At the time he gave his initial statement in these proceedings, the applicant was living off the leave entitlements he received upon his dismissal. Although the applicant owns his own home and there was no evidence of any mortgage, he still has the ordinary expenses of life to meet and currently provides financial support to his partner, children, grandchildren and the partner of his nephew who is currently incarcerated.
8. The applicant had hoped to work for about another 5 years before retiring and I accept that the applicant will find it difficult to find other work given his narrow skill set and lack of computer skills.

Conclusion with respect to whether the termination was harsh, unreasonable and unjust

1. Balancing all of the evidence and matters relevant to question of whether the termination of the applicant's employment was harsh, I have decided that it was not harsh. The decision was a proportionate response to the serious misconduct of the applicant and the applicant has not demonstrated that other factors have outweighed this to the extent that the decision could be considered harsh. In making this decision, I am particularly concerned with the seriousness of the conduct and the deliberateness of the incident.
2. The nature of the role the applicant occupied carried with it inherent work health and safety risks. Given the lack of insight the applicant demonstrated into the importance of ensuring safety in undertaking his work after initially being "caught in the act", it would be inappropriate for him to be restored to his role because there could be no confidence he would comply with safety protocols in the future, compromising his safety, that of other staff and the general community.
3. Unfortunately, the nature of the incident is such that the fundamental trust needed for the relationship between the applicant and respondent has been severed, despite the applicant's very long service. In this regard, I consider the previous written warning relevant because it related to another incident involving a breach of the respondent's Code of Conduct. 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.
4. For these reasons I have decided that the termination of the applicant's employment was not harsh, unreasonable, nor unjust and the application should be dismissed.

Orders

1. I make the following order: 1. The application is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2021