Industrial Relations Commission New South Wales Medium Neutral Citation: Hamlin v Council of the City of Sydney [2021] NSWIRComm 1066 Hearing dates: 8 September 2021 Date of orders: 8 September 2021 Decision date: 08 September 2021 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir Decision: Leave to appeal is refused Catchwords: APPEAL – application for leave to appeal – whether exercise of discretion disclosed error – no substantial issue of principle or law having wider implications or widespread practical application – no demonstrable error disclosed – leave to appeal refused Legislation Cited: Industrial Relations Act 1996 ss 84, 188, 191 Work Health and Safety Act 2011 Cases Cited: Antonakopoulos v State Bank of NSW (1999) 91 IR 385 Big W Discount Stores v Donato [1995] 58 IR 239 Commissioner of Police v Platts [2021] NSWIRComm 1021 Hamlin v City of Sydney Council [2021] NSWIRComm 1010 House v The King (1936) 55 CLR 499 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576 North v Television Corporation Ltd (1976) 11 ALR 599 Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 Category: Principal judgment Parties: Warren Hamlin (appellant) Council of the City of Sydney (respondent) Representation: Counsel: M Fraser (appellant) Solicitors: Bartier Perry (respondent) File Number(s): 2021/58005 Publication restriction: Nil Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2021] NSWIRComm 1010 Date of Decision: 9 February 2021 Before: Commissioner Webster File Number(s): 2020/227978 decision 1. This is an appeal pursuant to s 188 of the Industrial Relations Act 1996 (NSW) ("IR Act") by Mr Warren Hamlin (appellant) against the decision of Commissioner Webster in Hamlin v City of Sydney Council [2021] NSWIRComm 1010 ("Decision") to dismiss his application for relief pursuant to s 84 of the IR Act. Background 1. The circumstances giving rise to and resulting in the appellant's dismissal were not materially in dispute before Commissioner Webster. It is convenient to reproduce extracts from the Agreed Statement of Facts relied on by the Commissioner which is recited in complete form at [6] of the Decision: 1. In 2015 and 2016, the appellant attended training provided by the respondent on the need to take reasonable care for safety and to comply with safety instructions. 2. In January and May 2017 serious injuries were sustained by employees of the respondent as a consequence of riding on the back of mini-compactor trucks. 3. In early June 2017, the respondent eliminated the practice of riding on the back of the mini-compactor trucks. 4. The appellant attended a toolbox talk on 7 June 2017, during which he was informed that the practice of riding on the back of the mini-compactor trucks was prohibited and that the respondent had issued a new safe work practice. During the toolbox talk the new safe work practice was demonstrated. 5. The respondent arranged for the platform or step which previously allowed employees to ride on the back of its mini-compactor trucks to be removed, and other measures implemented to require and support only riding in the cabin. 6. In March and May 2018, the appellant attended further training on the need to take reasonable care for safety and to comply with safety instructions. 7. In June 2018 the appellant was reminded of the new safe work method practice, including that 'steps were removed from the back' and that riding on the back of the mini-compactor trucks was prohibited. 8. In August 2018, the appellant was issued a warning in relation to unsafe behaviour, which did not include riding on the back of a truck. 9. In August 2019 and February 2020, the appellant attended further training that instructed him on the need to take reasonable care for safety and to comply with safety instructions. 10. On 30 June 2020 another employee of the respondent saw and photographed the appellant riding on the back of a mini-compactor truck in breach of the new safe work practice ("Incident"). 11. On 8 July 2020 the appellant received a letter from the respondent inviting the appellant to a meeting on 13 July 2020 to discuss the Incident. 12. During the meeting on 13 July 2021: 1. it was noted by the respondent that the appellant did not have a support person present and when asked if the appellant wanted Mr Shane Pinter, a representative of the United Services Union to be present, the appellant stated "no, I've not done anything wrong"; 2. when asked if this was his usual practice to stand on the back of the vehicle, the appellant stated "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"; 3. when asked if it is safe procedure to travel on the back of the mini compactor, the appellant stated, "I don't know, all I know is I'm trying to do it in the quickest and safest way."; 4. when asked what the safe work practice is, the appellant stated "sometimes I run, sometimes I walk, sometimes I jump in the cabin, sometimes I do get on the back if there are cars behind us"; and 5. the appellant also said words to the effect: "I'd have a reason to do it"; "I think I'm in no danger at all"; and "I don't do it all the time. I have done it". 1. The appellant attended another meeting with representatives of the respondent on 20 July 2020. During this meeting, the appellant was advised that a decision regarding the future of his employment would be made based on this meeting. During this meeting, the appellant made the following statements: 1. "I apologise, now [I] see it from your [the respondent's] point of view. I never took it serious, it's deadly serious"; 2. "I thought it was not that bad'"; 3. "I'll never get on the back again"; and 4. "I'm starting to realise it's sunk in and I see it from your point of view". 1. The appellant was then asked to attend a further meeting with representatives of the respondent on 23 July 2020. The appellant was advised at this meeting that his employment would be terminated. 2. During each of the meetings described above the appellant admitted to having engaged in the conduct that comprised the Incident. 3. The respondent paid the appellant a sum of money equivalent to five weeks' wages in lieu of notice and all accrued annual leave and long service leave owing to the appellant. 1. Commissioner Webster observed at [22] of the Decision that the appellant did not seek to argue that his dismissal was either unreasonable or unjust. Rather, he advanced his case only on the basis that it was harsh. There is no suggestion on appeal that the Commissioner mischaracterised the nature of the proceedings before her. 2. Commissioner Webster found the appellant's dismissal "was a proportionate response to the serious misconduct" and that the appellant failed to establish that "other factors have outweighed this to the extent that the decision could be considered harsh": see Decision at [69]. 3. At paragraph 4.1 of the appellant's written submissions filed 27 July 2021, the appellant set out a number of findings made by Commissioner Webster in the Decision, including that: 1. The appellant was obliged under the respondent's code of conduct: 1. to take reasonable care for his own health and safety and that his acts and omissions did not adversely affect the health and safety of others; 2. to comply, so far as he was reasonably able, with any reasonable instruction given to ensure compliance with the Work Health and Safety Act 2011 ("WHS Act") and any policies or procedures adopted by the respondent to ensure workplace health and safety; and 3. to cooperate with any reasonable policy or procedure of the respondent relating to workplace health or safety that has been notified to staff. 1. The appellant had an obligation to act in accordance with the respondent's direction not to engage in the practice of riding on the back of the truck. 2. The risks that the policy addressed were not fanciful. 3. The appellant had engaged in the practice seemingly without incident to himself for several decades. 4. The appellant's actions in defying the respondent's direction to cease the practice were flagrant and deliberate. 5. None of the reasons the appellant gave for doing so could possibly have justified his decision to breach the safety protocol. 6. The incident was serious misconduct that had fundamentally undermined the trust between the applicant and the respondent. 7. The appellant did not apologise for his conduct during the meeting on 13 July 2020. 8. The appellant did not believe he had done anything wrong at the time of the meeting on 13 July 2020. 9. The appellant held a cavalier attitude towards the respondent's policies designed to keep him, his work colleagues and the general public safe. 10. By the time the appellant attended the meeting of 23 July 2020, he regretted his actions and was willing to undertake any necessary training. The regret and remorse that he felt in respect to his actions arose as a consequence of his threatened and ultimate dismissal, not because he genuinely believed he had done anything wrong. 11. The applicant did not demonstrate sufficient insight into his transgression for there to be confidence he would not breach another safety protocol in the future if it was convenient for him to do so. 12. The appellant's truthfulness about his conduct was, at best, a neutral factor. 13. The appellant had received a written warning for speaking in an aggressive tone to another employee two years before. This incident was relevant because it ought to have served as a warning that the applicant was required to comply with the respondent's code of conduct. 14. There was otherwise no evidence of any other disciplinary issue relating to the appellant for the period of his employment. 15. The termination has had a very significant personal impact on the appellant, and an adverse impact on his mental health and wellbeing. 16. The termination will have a significant financial impact upon the appellant. As a consequence of dismissal, the applicant was no longer entitled to be paid out 2,237 hours of his personal leave. This had disentitled him to an amount in excess of $70,000. 17. The applicant provides financial support to his partner, children, grandchildren and the partner of his nephew who is currently incarcerated. 18. The appellant had hoped to work for another 5 years before retiring and the appellant will find it difficult to find other work given his narrow skill set and lack of computer skills. 19. The termination was not harsh. It was a proportionate response to the serious misconduct. It was not outweighed by other factors. 20. The misconduct was serious and deliberate. 21. Given the lack of insight the applicant demonstrated into the importance of ensuring safety in undertaking his work after 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. 22. The nature of the incident is such that the fundamental trust needed for the relationship between applicant and respondent has been severed, despite the applicant's very long service. 23. 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 at work. 24. 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. Grounds of appeal 1. The grounds of appeal set out in the Application for Leave to Appeal and Appeal are: 1. The decision was unbalanced and attended by error in principle in that the Commission's focus was almost entirely upon the applicant's failure to comply with a direction and without regard to the other circumstances, including: (a) Other safety considerations guiding the performance of the applicant's duties. (b) The applicant's reasons for not complying, including the pace of work. (c) The length of the applicant's employment. 2. The decision was manifestly unjust in view of: (a) The applicant's age. (b) His lack of prospects of future employment. (c) His family's dependence on his earnings. (d) The effect of the termination on the applicant's mental health and wellbeing. (e) The forfeiture of the value of his accrued sick leave. 1. In support of the grounds of appeal the appellant challenges many of the specific findings made by Commissioner Webster, including those set out at [5(5)] [5(6)] [5(7)], [5(10)] [5(13)], [5(20)], [5(21)], [5(22)], and [5(23)] above. The appellant says that the Commissioner should have found that the misconduct was of low to moderate gravity and that it did not justify dismissal. Leave to appeal 1. The Full Bench required the parties to address the question of leave to appeal as a preliminary issue. Having considered the parties' submissions, the Full Bench informed the parties that the decision had been made to refuse leave and that reasons for that decision would follow. These are our reasons. Principles on leave to appeal 1. Pursuant to s 188 of the IR Act an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. 2. The principles on leave to appeal are well-established: see for example, Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 at [22]-[27] ("Zopf"); Commissioner of Police v Platts [2021] NSWIRComm 1021 at [19]-[20] ("Platts"). 3. In her oral submissions Ms Fraser of Counsel, who appeared for the appellant, submitted primarily that the Commission's power to grant leave pursuant to sub-s 188(1) of the IR Act is at large. Ms Fraser further submitted that there is no basis for placing a gloss on that discretion and cases such as Knowles v Anglican Church Property Trust (No. 2) [1999] NSWIRComm 576 ("Knowles") which attempt to do so are wrong and should not be followed. 4. The appellant did not provide a sufficient basis on which the Full Bench would consider departing from the principles set out in Zopf and Platts. Accordingly, we will apply those principles. 5. We agree with the respondent that the following principles are of particular importance in this Appeal: 1. "The provisions of the [IR] Act as to appeals give primacy to first instance decision making…": Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392; 2. Leave to appeal will not be lightly or automatically granted: King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353 at [52] - [55]; 3. In determining whether to grant leave to appeal it is relevant to consider whether the appeal raises substantial and important considerations. The public interest considerations under s 188(2) of the Act need to be "evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application": Knowles; 4. Appeals are solely to correct error. In an appeal challenging the exercise of a discretion the appellant must, if leave to appeal is granted, demonstrate error in the exercise of the discretion of the nature contemplated in the principles enunciated in House v The King (1936) 55 CLR 499; [1936] HCA 40. Consideration 1. In his written submissions, and orally as an alternative to his primary submission, the appellant submitted that the appeal raises the following issues of public interest: 1. the extent of an employee's duty to obey a direction to the exclusion of other proper considerations; 2. the need for a temperate, impartial and balanced approach to decision making on the part of the Commission; and 3. substantive justice to the applicant, an employee with 40 years' service collecting garbage. 1. Ground 1 of the appeal, which asserts that the Decision is "unbalanced and attended by error", is without a factual basis. 2. We agree with the respondent that despite the language used in Ground 1, the Application for Leave to Appeal and Appeal does not contend Commissioner Webster misunderstood the relevant law and the well-known legal principles as set out at [16] to [29] of the Decision. 3. Paragraph 5 of the appellant's Submissions on Leave to Appeal filed 27 July 2021 ("ASLA") provides more detail of the appellant's actual complaint in Ground 1: "5. The Commissioner focussed almost exclusively on the act of misconduct to the exclusion of its context, and did not properly or fully evaluate whether Hamlin's failure to comply with a direction was a renunciation of the employment relationship before finding that it was." 1. We do not accept that Commissioner Webster did not give due consideration to all the mitigating issues raised by the appellant: see Decision at [43] to [68]. The criticisms of a lack of evaluation of the facts and the effect on the employment relationship are without basis and do not arise on a fair reading of the Decision. Commissioner Webster expressed her views of the appellant's conduct in forceful language at times. However, her reasoning is disclosed and her conclusions, including each of those set out at [7] above about which the appellant makes specific complaint, were all available on the basis of the material before her. 2. The existence of mitigating matters, either individually or collectively, do not themselves dictate a particular outcome; it is a balancing exercise for the Commissioner. Commissioner Webster clearly undertook such a balancing exercise. 3. We do not accept that Commissioner Webster was intemperate, partial and/or unbalanced. 4. At par 2 of the ASLA it is contended that the duty to comply with a safety obligation is subservient to an overriding obligation to work in the interests of the employer, and the submission that non-compliance with a direction may be misconduct of greater or lesser gravity depending upon context. We agree with the respondent that these propositions do not warrant the grant of leave to appeal. Safety is not subservient to the duty to work; it is an inherent and fundamental part of the duty to work itself. Of central importance to the question of leave, the consideration and balance of these matters and any conflict between these obligations is a matter properly within the discretion of Commissioner Webster unless appealable error is disclosed. 5. Ground 2 of the appeal challenges the exercise of Commissioner Webster's discretion. Accordingly, the appellant must demonstrate error in its exercise of the nature contemplated in the principles enunciated in House v The King. In our view, no such error is established. 6. At paragraphs 7 to 8 of ASLA, the appellant contends: "7. Mr Hamlin was guilty of an error in judgment, but that error was not so fundamental that it struck at the heart of the employment relationship. His dismissal was wholly disproportionate to the impugned conduct. 8. Substantial justice can be achieved in this case by restoring Mr Hamlin to his employment. After forty years in the one job, and at age 64, he is not going to be able to find other employment." 1. These submissions do not demonstrate appealable error. Rather, they simply challenge findings to the contrary made by Commissioner Webster who, in an orthodox manner, considered and dismissed the appellant's arguments: see in particular Decision at [69]-[71]. In his submissions the appellant is doing little more than attempting to relitigate his case. 2. Authorities such as Big W Discount Stores v Donato [1995] 58 IR 239 and the terms of s 191 of the IR Act make it clear that "the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions": sub-s 191(3). The Full Bench will only intervene to correct error: Zopf at [39]. 3. The ultimate conclusion of Commissioner Webster that the dismissal of the appellant was not harsh was reasonably open on the material before her. In an appeal such as this, it is not open to the Full Bench to substitute its views for those of the Commissioner. 4. In her oral submissions, Ms Fraser contended that Commissioner Webster did not adequately explain the reasoning she adopted to determine that the appellant's misconduct was serious misconduct warranting dismissal. Ms Fraser further submitted that decisions of this Commission did not assist parties to identify the "bright line" between misconduct and serious misconduct. On this basis Ms Fraser advanced the proposition that there is a significant public interest in the Full Bench providing guidance in this regard, such that the Full Bench must grant leave pursuant to sub-s 188(2) of the IR Act. 5. The Full Bench does not accept the proposition that there is a lack of guidance as to when misconduct will warrant dismissal. There is ample authority on this point: see for example North v Television Corporation Ltd (1976) 11 ALR 599 which has been applied in numerous decisions of this Commission. Amongst other things, that authority makes it clear that there is no "bright line" of the kind sought by Ms Fraser. There was nothing in Commissioner Webster's reasoning that was inconsistent with this authority. Conclusions 1. In the Decision, Commissioner Webster outlined the legislation and legal principles that guided the exercise of her discretion under Pt 6 of the IR Act. The Commissioner applied those principles in an orthodox way. The appellant has not identified any error that would warrant the granting of leave. 2. Aside from the question of error, there are no matters of principle at large that justify an appeal being heard. The appeal raises no substantial issues of principle or law, nor does it raise issues having any wider application than to the parties themselves. That being so, there is no proper basis on which, in the public interest, leave should be granted. 3. For these reasons we refuse to grant leave to appeal. Order 1. The Full Bench makes the following order: 1. Leave to appeal is refused. ********** 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: 08 September 2021