In this issue….
An employee of Parramatta City Council has been found to be unfairly dismissed when the Council declined to offer him leave without pay after he lost his drivers’ license for a second period. The case highlights the difficult position of employers needing to juggle the needs of service provision against the needs of staff with compounded issues – in this case a loss of licence along with restrictions arising from workplace injuries and the lodgement of a “protective disclosure” of alleged workplace bullying and harassment against his manager.
Mr Brown was employed by Parramatta City Council as a full-time Grade 3 Driver/Team Member on the Civil Works Team for approximately 5 years. Mr Brown filed a workers compensation claim in January 2012 after claiming he strained his back at work. In September 2012 he further claimed he sustained a knee injury and an aggravation of his lower back injury at work.
Parramatta Council provided Mr Brown with alternative suitable duties from both within and outside the Civil team from January 2012 until December 2012 when his workers compensation claims were declined by the Council’s insurer, GIO. At this point, the Council referred Mr Brown for a fitness to continue examination given his ongoing physical restrictions on lifting more than 4 kg and was subsequently offered work involving driving duties.
However, in early February 2013 Mr Brown informed Parramatta Council his drivers’ license had been suspended for 12 months after refusing to undertake a police breath analysis test when requested to do so in the car park of a local hotel. Mr Brown was temporarily assigned to a range of labouring activities in the Council’s Civil Works and Cleansing Departments, which were suitable despite his injuries and loss of license. From March 2013, he was informed by the Council that it had exhausted alternative suitable duties and there were no redeployment opportunities available to him as a driver. He was advised that he could use his leave entitlements to cover his absences since his workers’ compensation claim had been declined.
Mr Brown’s employment was eventually terminated on 10 May 2013 on the grounds of him losing his license, which was an inherent requirement for his substantive driver role.
There were issues raised concerning the relationship between Mr Brown and the Acting Service Manager of the Civil Works Department, Mr Cremasco, which had resulted in Mr Brown lodging a protective disclosure complaint in August 2012, alleging workplace bullying and harassment.
The unfair dismissal case was heard in the NSW Industrial Relations Commission before Commissioner Tabbaa who rejected Mr Brown’s claims he was not aware of the inherent requirements of his position, including driving a 2 axle truck, citing the number of years he had worked for the Council. She also noted there was no legal requirement for the Council to provide alternative suitable duties once Mr Brown’s workers’ compensation claims were rejected by GIO nor after his loss of drivers’ license. These decisions by Council went beyond their statutory requirements to provide alternative duties under s 49 of the Workplace Injury Management and Workers Compensation Act 1998.
Commissioner Tabbaa found Mr Brown’s refusal to participate in an treatment intervention plan devised in April 2013, as well as misconceptions about Mr Brown being charged with and convicted of an offence of high range driving under the influence of alcohol impacted on the decisions made by the management team to proceed directly with the option of dismissal rather than offering Mr Brown leave without pay.
However, while finding Mr Brown contributed to Council’s misunderstanding of the reason for his loss of licence and his refusal to participate in the intervention plan (as he could have cleared up the issues by putting advice in writing to the Council), Tabbaa concluded the dismissal was unfair since Mr Brown could have been offered leave without pay for the period during which he lost his license. This was particularly so given evidence other staff in similar situations had been offered alternative duties or leave without pay after losing their licence.
Although she believed Mr Brown was significantly responsible for the outcome, she stated Council managers should have set aside any perceptions they had regarding the injury and loss of license. Accordingly, Parramatta City Council was ordered to pay a sum equivalent to four weeks’ pay and urged to provide Mr Brown with a Certificate of Service.
Neville Brown and Parramatta City Council  NSWIRComm 1002 (22 January 2014)
Implications for NSW local government
The decision of the NSW Industrial Relations Commission in this matter highlights the importance of considering all alternative options when making the decision to terminate an employee. In determining whether a dismissal is unfair under s 88 of the Industrial Relations Act 1996, the Commission will have regard to a number of factors, including consideration of reinstatement and re-employment.
Where an employee can no longer fulfil the inherent requirements of their position, it is important for the employer to consider all possible options, including alternative duties or offering for the employee to take leave without pay until the issue is resolved. However, it is also important to note the Commissioner stated there was no legal requirement on employers to provide alternative suitable duties in this scenario.
This case also highlights the unfortunate impact of previous “acts of good faith” involving other staff with the Commission being ready to pick up on evidence presented by the applicant of other staff who had lost their licences being provided with leave without pay or alternative duties instead of being terminated.
However, it is considered Parramatta Council may have been treated a little harshly in this case given they appear to have provided Mr Brown with an act of good faith to cover the period of his first loss of licence yet had decided to decline making similar accommodations for his second period of loss of licence. Also relevant, it is considered, is the fact Mr Brown was employed as a driver and should have been more mindful than other employees of the need to maintain his licence.
Workplace Relations Education Series Seminar – Professor Alexander Colvin
When: Thursday 15 May, 2014
Where: Seminar Room, Level 3, 10 Spring Street, Sydney
RSVP before 9 May HERE
The Shifting Paradigm of Industrial Relations – Industrial Relations Society of NSW 2014 Annual Convention
When: Friday 23rd to Sunday 25th May, 2014
Where: Fairmont Resort, 1 Sublime Point Rd, Leura
For prices and registration download Registration form HERE
Queensland IR Society Patron’s Lunch – Industrial Relations Society of NSW 2014 Annual Convention
When: Friday 4 July, 2014
Where: The Pullman Hotel, Roma St, Brisbane
Time: 12:00 – 18:00pm