In a recent decision Hamlin v City of Sydney Council [2021] NSWIRComm 1010, the NSW Industrial Commission has upheld the termination of an employee with 40 years’ service.
The Case
Mr Hamlin was employed by Sydney City Council as a Cleansing Services Operator. One of his duties was collecting rubbish bins. He was seen standing on the back of the garbage bin when it was in motion. At first he denied he was doing anything wrong, but later apologised and promised to never ride on the back of a truck again.
Council had introduced policy against his behaviour in 2017 after a serious hand crushing injury involving another worker.
Council terminated his employment after considering his responses to its concerns.
The Decision
The NSW Industrial Commission found that he was aware of the 2017 policy, was trained in Council’s Code of Conduct about complying with safety policy, and yet had deliberately disobeyed them. Importantly the Commission did not accept that he had shown genuine contrition, considered that he had a cavalier attitude towards safety policy, and was not satisfied he would comply with safety policy in future.
In dismissing his application the Commission found that he had engaged in serious misconduct and that the termination of his employment was appropriate and proportionate.
Implications
The outcome may have been very different had Mr Hamlin engaged differently in Council’s investigation by showing genuine contrition and remorse from the outset about his clear breach of the safety policy. If you are facing a workplace investigation call a WorkLegal lawyer without delay for advice about appropriately and effectively engaging in a work investigation process.