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Refusal to limit hours of secondary employment leads to termination

In a decision handed down on 24 April 2017, Commissioner Murphy of the Industrial Relations Commission confirmed the importance of employees working in a cooperative manner with their employers to manage workplace fatigue issues, particularly in the context of effectively dealing with prior injuries and secondary employment matters. As a consequence, a full time council cleansing employee was refused reinstatement after being terminated for serious misconduct.


Mr Phillip Grafton commenced work with Waverley Council in 2010 and was dismissed from his role as Team Member, Public Place Cleansing effective 7 October 2016, following a number of contentious issues, including a failed application for relief under s.242 of the Workers’ Compensation Act before Commissioner Tabbaa (Grafton v Waverley Council (No.1) [2016] NSWIRComm 1029).

These issues essentially revolved around Mr Grafton’s employment as a Nightfiller/Shop Assistant with Woolworths at Marrickville, initially for 36 hours per week, increasing to 38 worked between 5pm and 1am Friday through to Tuesday nights. This secondary employment only came to light following Mr Grafton incurring an injury to his right wrist sustained at his Council job in April 2014, when he meet with Council’s Injury Management Specialist to develop a Return to Work Plan. Apart from refusing to complete a secondary employment form, Mr Grafton also refused to cooperate in allowing Council to contact Woolworths in order to deal with concerns about workplace fatigue.

Mr Grafton was required by Council to be assessed by Dr Keller, an Occupational Physician, who recommended Mr Grafton work no later than 9pm on week nights and no more than 12 hours on any day. Council sought updated details of the hours Mr Grafton worked at Woolworths as well as his agreement to accordingly reduce his night fill work hours. These requests went unanswered and this failure to comply with a direction from Council was considered to constitute misconduct warranting his termination.

Consideration and finding

Commissioner Murphy found Council’s instructions to Mr Grafton were both lawful and reasonable, and that Mr Grafton’s refusal to apply for secondary work approval was inconsistent with s.353 of the Local Government Act and clause 5.20 of the Code of Conduct.

The Commissioner was also of the view that Council had a statutory WHS duty of care to comply with the recommendations of Dr Keller and that Mr Grafton had a corresponding duty to co-operate with efforts to minimise the risk of workplace fatigue in the context of him essentially working two full time jobs. He found it was evident Council had gone to extraordinary lengths to accommodate Mr Grafton’s desire to supplement his Council income and had offered him the ability to continue working at Woolworths for up to 32 hours a week. However, in light of Mr Grafton’s ongoing intransigence to cooperate with his employer and continuing insistence on working both jobs on a full time basis, the Commission found his dismissal could not be seen as harsh, unjust or unfair.

Comments on the decision

This case highlights the ongoing need for employers to actively manage secondary employment issues with their staff, particularly when workers compensation and/or workplace fatigue issues are present. If employers do this in a reasonable and consistent manner, directives issued to employees will be more likely to be seen as lawful and enforceable.

Tips for Local Government and Public Sector employers

Working with staff during return to work situations is an optimal time to discuss possible undisclosed secondary employment situations which need to be managed in order to maximise the ability of injured staff to resume their normal work duties.

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

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