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 misconduct.
Inspector Nicholson v Pymble No.1 Pty Limited & Anor [2001] NSWIRComm 96 (July 2011)
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 decision.
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 [2011] 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 co-worker.
The following day, Mr Blunt's employment was terminated on the basis that he had engaged in serious and willful misconduct.
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.
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