Two recent decisions of the NSW Industrial Relations Commissions
have provided clarity for businesses in the conduct of their
operations: one in the Occuaptional Health and Safety
('OHS') construction space and the other
in relation to termination of employees for serious and willful
Pymble No.1 Pty Limited ('Pymble') was
the owner of a property that engaged a building contractor,
Millenium, to perform construction works on the property. As a
result of this arrangement, Millenium was provided with
responsibility for all construction work on the property.
In 2007, a WorkCover inspector observed subcontractors of
Millenium undertaking work at height with no fall prevention.
Proceedings were commenced against Pymble alleging breach of
s10(1) of the Occupational Health and Safety Act 2000
('the Act') on the basis that Pymble had
control of the premises at the time that the subcontractors were on
site without proper risk control measures.
At first instance, Pymble successfully defended the allegations
on the basis it had no control over the place of work at the time
the subcontractors were on site. WorkCover appealed the
On appeal, the Full Bench agreed that the mere ownership of a
property where construction is being undertaken does not
automatically confer any responsibilities for workplace safety on
the owner if contractual provisions are in place to delegate
control of the premises during construction to another party.
The Full Bench criticised WorkCover's argument that the mere
fact of ownership created some liability for control under s10.
Importantly, the Full Bench recognised that an owner's
ancillary right of access did not constitute 'control'
within the meaning of the statutory duty under s10. It followed
that if such a position was correct, it would mean that every owner
of premises upon which construction work was performed would be
liable to prosecution under the Act, particularly where they had
contracted with another party to take control of that work.
Therefore the appeal was dismissed.
Blunt v Port Stephens Council  NSWIRComm
A long term employee, Richard Blunt, was involved in an
altercation with a co-worker on Mr Blunt's front lawn on a day
off work. During the altercation, Mr Blunt head butted the
The following day, Mr Blunt's employment was terminated on
the basis that he had engaged in serious and willful
Mr Blunt commenced proceedings in the NSW Industrial Commission
alleging that his termination was unfair, arguing that such conduct
could not be construed as relevant to his employment as it occurred
away from the workplace and not on a work day. He also alleged
provocation and denied his actions were deliberate.
During the course of the case, it was revealed that the
motivation for Mr Blunt's conduct was clearly work related.
The Commission found that Mr Blunt's conduct was deliberate
and there was no evidence of provocation. Further whilst there was
no physical nexus between the actions that led to the termination
and the normal workplace, the reason for Mr Blunt's behavior
was clearly related to his work with the victim.
In characterising Mr Blunt's actions as 'serious and
willful misconduct' under the Council's Code of Conduct,
the Commission clearly indicated that intentional violence in a
workplace context cannot be condoned.
In finding that the termination was not 'harsh, unreasonable
or unjust', the Commission indicated that each case is
different and that the circumstances and location of any violence
require close examination to determine whether the termination of
employment is legitimate.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).