Fulton Hogan forced to reimburse a truck driver after sacking him for not reporting a workplace injury immediately
By Brad Gardner | November 9, 2010
Civil contractor Fulton Hogan has been ordered to reimburse a truck driver $8840 after a “compromised investigation” led to an unfair dismissal.
Fair Work Australia has criticised Fulton’s practices that prompted it to sack Stephen Lawrence after he injured his back while pulling a tarp on his truck.
Lawrence reported the incident to his transport manager Joe Schoessow instead of the workplace health and safety officer. He told Fair Work Australia Schoessow assured him he did not need to contact anyone else.
Lawrence was subsequently sacked by a group that included Schoessow after an investigation alleged he failed to make a Workcover claim in accordance with Fulton’s procedures.
Commissioner Michelle Bissett accused the company of “a lack of procedural fairness” because Lawrence was denied the right to have his case considered by a person separate from the incident.
“Mr Schoessow was part of the investigation by Fulton Hogan, he was part of the decision making by Fulton Hogan and he determined the penalty to be imposed on Mr Lawrence,” Bissett says.
“This is not indicative of independent decision making but rather of a compromised investigation.”
Bissett also rejected Fulton’s claim that Lawrence breached company policy by not immediately reporting his injury.
“I have found that Mr Lawrence did report his injury in a timely manner,” she says.
“Whilst there were some delays that are regrettable, these are in the order of hours, not days or weeks and are not such to provide a valid reason for the termination of Mr Lawrence’s employment.”
Schoessow claims he asked Lawrence if the incident had been reported but was told no. Lawrence’s wife was privy to the conversation and Bissett accepted the truck driver’s version of events.
The injury happened while Lawrence was delivering goods to an Origin Alliance worksite.
Because he was accused of breaching workplace obligations, Lawrence lost an access card which meant he could no longer enter the site.
Fulton argued the loss of the card meant Lawrence had to be terminated because he could no longer do his job.
“However, there is no evidence that Mr Lawrence was employed by Fulton Hogan solely to work on the Origin Alliance project, nor that his employment was in any way tied to that project,” Bissett says.
Furthermore, she says there is no evidence that access to the site was a condition of Lawrence’s employment and that the driver was not consulted before having the card revoked.
Bissett says Fulton should have considered other tasks for Lawrence before deciding to sack him.
“I am not convinced that they undertook this task to the extent they should have or with the necessary rigour,” she says.