Grafton v Waverly Council (No.2) [2017] NSWIRComm 1020

Industrial Relations Commission New South Wales Medium Neutral Citation: Grafton v Waverly Council (No.2) [2017] NSWIRComm 1020 Hearing dates: 16 & 17 March 2017 Date of orders: 24 April 2017 Decision date: 24 April 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The applicant's unfair dismissal application is dismissed Catchwords: UNFAIR DISMISSAL – summary termination for serious misconduct – failure to comply with directions – workers compensation injury – previous application for reinstatement pursuant to workers compensation legislation unsuccessful – applicant working two full time jobs – fatigue issues – assessment by occupational physician – identification of risks – applicant refused to modify hours of work with other employer – dismissal not harsh unreasonable or unjust Legislation Cited: Workers Compensation Act 1987 Local Government Act 1993 Work Health and Safety Act 2011 Cases Cited: Grafton and Waverly Council [2016] NSWIRComm 1029 Texts Cited: Heavy vehicle driver handbook published by NSW Transport, Roads and Maritime Services Category: Principal judgment Parties: Phillip Grafton (Applicant)

Waverly Council (Respondent) Representation: Solicitors: Mr S Jauncey, Henry Davis York Lawyers (Respondent) File Number(s): 2016/00322382

DECISION 1. 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. 2. 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. 3. 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.