Garbo held on for an hour-and-a-half before doing wee-wee in a Melbourne laneway … Council plod nabs bin-man while passing water … Garbage contractor worried about reputation … Is street-side relief grounds for dismissal? … Fair Work Commission to the rescue … Justin Pen unbuttons the story
The applicant was six-and-a half-hours into a ten-hour shift when, at approximately 8:30am, he paused to have a leak in a laneway in Melbourne’s CBD.
He gave evidence to the FWC that the need to avail himself came at about 7:00am but, because of the absence of parking spots fit for truck, the lack of nearby public toilets, and the amount of bins that remained to be collected, he was unable to do so in private.
The absence of facilities is the main reason why many people complain that Melbourne streets smell of stale urine, something the city mothers and fathers are trying to remedy.
Caught wet-handed by a City of Melbourne Inspector, the applicant was slapped with an infringement notice for public urination. The inspector followed up with an email to his employer, robbing him in and expressing concern.
After his shift had ended, the applicant called his supervisor and advised him of what happened.
After 10 days and a couple of meetings Citywide decided to dismiss Walia on the basis that his actions were against the law and had the potential to damage the company’s reputation.
The industrial umpire is no stranger to matters of the bladder. In her reasons, Commissioner Michelle Bissett remarked:
“There have been many (perhaps too many) decisions of the commission where an employee has had his employment terminated for urinating other than in the toilet.”
The commissioner cited four cases, from the last five years, involving an employee’s rushed response to nature’s call. In three of the four cases the FWC sided with the employer, asserting that incidents of public urination gave rise to a valid reason for dismissal.
Commissioner Bissett observed:
“Whilst each of these cases turn on their own facts it seems that the important considerations are whether the employee had a real choice whether to urinate on the spot and whether any reputational damage might or did accrue to the relevant employer.”
In the present case, she found that the applicant:
“… did not succumb to an urgent need to urinate … On his own evidence he felt the need to urinate at around 7.00am. That provided him with 90 minutes within which he could have located a toilet.”
For these reasons, he held that Citywide had a valid reason to sack the applicant.
However, after taking into account the consequences it had on him and his family, Bissett found that dismissal was a disproportionate response to the applicant’s misconduct.
The industrial umpire heard that Walia was the sole breadwinner for his family of four, with his wife acting as primary carer for their two young tots. Furthermore, following his sacking, the applicant had to take out a bank loan to put bread on the table.
She also observed that the applicant had been unable to find work in hotel management, an area in which he held qualifications, and that the jobs for which he had applied paid considerably less, due to the substantial overtime (54 hours per week) he put in as a garbage truck driver.
On balance Bissett found that, although Citywide had a valid reason for dismissal, the applicant had been unfairly sacked.
Walia had reported the incident as soon as his shift finished, apologised to his boss, and the consequences of dismissal were particularly harsh on himself and his dependents.
The commissioner said that Citywide was a large outfit with approximately 1,000 employees, meaning there would be no impediments to reinstate the garbo to his old position.
Bissett also ordered that Citywide compensate the applicant for 12 weeks of lost pay, deducting two months’ wages for the applicant’s misconduct.
The company was also ordered to maintain the applicant’s continuity of employment as well as any benefits owed to him for continuous service.
Yeah … Justice.
And, for good measure, here’s one of the memorable songs from the hit musical Urinetown …