Employers and workers need to be mindful of the impact of fatigue in the workplace.
The NSW Industrial Relations Commission has handed down a decision that sends a clear message that all parties must cooperate to guard against fatigue and ensure safety at work.
According to SafeWork NSW, fatigue is ‘a state of mental and/or physical exhaustion which reduces a person’s ability to perform work safely and effectively’.
Research tells us that a lack of sleep (i.e. fatigue) has comparable affects to alcohol consumption:
- 17 hours awake is equivalent to a blood alcohol content of 0.05
- 21 hours awake is equivalent to a blood alcohol content of 0.08
- 24-25 hours awake is equivalent to a blood alcohol content of 0.10
- Between 0.05 and 0.08 blood alcohol content, every person suffers impairment in tasks requiring skills, vigilance and precision.
The case before the NSW Industrial Relations Commission (Grafton v Waverley Council (No.2)  NSWIRComm 1020) was about Phillip Grafton, a full-time employee of Waverley Council. During the day, he worked as a ‘Public Place Cleaner’. At night, Mr Grafton also worked full-time as a night-filler at Woolworths.
Mr Grafton injured his wrist and took extended time off work. He made a workers’ compensation claim, and through that process, Council became aware of his second job. They tried to get Mr Grafton to reduce his hours, but he refused. Council terminated his employment for serious misconduct; disobedience. He brought a claim for unfair dismissal to the Commission, which failed.
You can go and look up the case to see the Commission’s reasoning, but in short, the Commission sided with the Council in finding that the termination was not harsh, unreasonable or unjust.
The Council’s directions to Mr Grafton to reduce his hours ‘were lawful because his work with Woolworths had the potential to conflict with his Council duties, in the sense of his ability to carry out those duties in a safe manner, without risk to himself and others,’ the Commission said.
The point about the case is that employers have a legal duty of care to protect the health and safety of all employees at work.
Had Mr Grafton been involved in an accident that caused harm to others, because he was fatigued, there could have been very serious consequences.
But workers also have some responsibility to ensure that their acts and omissions do not affect others. Some personal responsibility needs to be taken and employees must cooperate with employers.