The employee admitted he engaged in the conduct and understood it was a breach of policy.
News 4 May 2021

FWC weighs interests of a business, employee and community safety

A Cleansing Services Operator was fired after riding on the back of a moving garbage truck. With more than 40 years of experience behind him, the former employee says his dismissal was harsh.

The employee was employed to drive a garbage truck and empty waste bins. Prior to 2017, employees would stand on the back of the truck whilst it was in motion – travelling from one location to another. In 2017 a serious safety incident occurred resulting in a crushing injury to an employee’s hand. Following this incident, the employer reviewed their safety procedures and banned employees from standing on the back of the truck whilst it was in motion. The Safe Work Method Statement was updated and communicated to all employees. In addition, the steps were removed from the back of the trucks.

After being notified by another employee of the alleged conduct, an investigation was conducted. The employee was asked whether standing on the back of the vehicle was his usual practice. The employee 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”.

The employee was also asked whether he thought it was a safe procedure, to which he responded, “I don’t know, all I know is I’m trying to do it in the quickest and safest way.”

A show cause meeting took place where the employee was provided an opportunity to demonstrate why his employment should not be terminated. During this meeting, the employee said “I apologise, I now see it from your point of view. I never took it serious, it’s deadly serious... I thought it was not that bad’’.

Following this meeting, the employee was dismissed. His colleague who was driving the truck was also dismissed.

The employee admitted he engaged in the conduct and understood it was a breach of policy, however, he argued his dismissal was harsh under the circumstances.

Matters for consideration

The Fair Work Commission (the “Commission”) considered several matters when determining whether the dismissal was harsh, including:

1. The nature and seriousness of the conduct.

There was no dispute regarding the facts of the incident or the nature and seriousness of the conduct. The Commission considered the employee was aware of his obligations to comply with the employer’s Code of Conduct and applicable occupational health and safety legislation.

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

The Commission said that the employee “held a cavalier attitude towards the [employer’s] policies which were designed to keep, him, his work colleagues and the general public safe.” Although the employee apologised for his actions, the Commission considered it was a result of the disciplinary action and the prospect of the employee losing his job, rather than a genuine apology for his conduct.

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

The employee had been employed by the business for over 40 years. The employee was issued with a warning, however, the Commission considered it was not related to the matter in question. The Commission noted “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.”

4. The impact of the dismissal

The employee stressed the dismissal had a major impact on his life, stating that he “relied on work for financial security, social life, as well as a sense of purpose” and that it had caused issues with his health and wellbeing.

The decision

After factoring in the above matters, the Commission decided the dismissal was not harsh, and it was a proportionate response to the serious misconduct which occurred. The Commission confirmed the employee had a responsibility to comply with and carry out safe work practices. The Commission considered it would not be appropriate to reinstate the employee as the trust and confidence in his ability to safely carry out these responsibilities was now damaged.

The Commission concluded that “whilst the impact of the termination will have a significant impact upon the [employee], financially and emotionally, this must be balanced against the interests of the [employer] and the broader community in ensuring that people are not injured or killed when at work.”

Learnings for business

This case serves as a reminder on the importance of complying with all workplace policies, practices and legislation. Workplace safety should be at the forefront of every business’ mind and the consequences of ignoring it can be serious even if no injury occurs.

Businesses need to be aware of the legislation and guidelines which apply to their industry or workplace and ensure that their employees are up to date in their training. This case also highlights the importance of having workplace policies and procedures which should be updated regularly and ensure that all employees are aware of their obligations too.

In this case the business was able to demonstrate it had conducted a fair investigation and disciplinary process and in doing so carefully considered all the information including how the dismissal may impact the employee.

How the Victorian Chamber can help 

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222. Complete members can receive unlimited general advice on a range of workplace issues including Occupational Health and Safety, WorkCover, workplace policies, disciplinary procedures and more.

The Victorian Chamber also have specialised Consultants who can assist your business with delivering training in various Workplace Relations or Occupational Health and Safety matters, drafting policies and procedures, navigating WorkCover claims and handling performance management and disciplinary issues.

[2021] NSWIRComm 1010

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