Driver loses unfair dismissal claim against operator

Date: 02.10.2009

A driver sacked for poor performance, time wasting and customer complaints loses unfair dismissal claim against Paramount Transport

By Brad Gardner | October 2, 2009

A truck driver who was sacked for repeatedly breaching company policies has lost his bid for a payout from his former employer.

The Australian Industrial Relations Commission (AIRC) has thrown out an unfair dismissal claim against Melbourne Port carrier Paramount Transport that alleged it treated its driver harshly.

The driver, who can only be referred to by his last name Brown, wanted two weeks termination pay after being fired on May 11 this year for incidents including tardiness and poor presentation.

But Commissioner Dominica Whelan ruled the company had acted fairly because Brown had received enough warnings over his poor work performance before being terminated.

"Mr Brown was treated fairly. He was given several warnings and provided with the opportunity to improve his performance," Whelan ruled.

The Commission heard Brown constantly turned up to work late, causing the company to miss its allotted time slot at the port.

"Mr Brown had also been warned about customer complaints relating to his presentation and behaviour, work performance and wasting time," Whelan says.

"The company stated that Mr Brown’s employment was terminated for persistently failing to follow a reasonable and lawful instruction to notify the fleet controller if he was unable to get to work on time."

Whelan says Brown’s behaviour in neglecting to keep Paramount Transport informed "exposed the employer to substantial fines, poor delivery performance and loss of reputation".

Brown argued the company had unrealistic expectations of him and that he was unable to always give an accurate guarantee of when he would be at work due to traffic conditions.

The Commission also dismissed Brown’s claim because he failed to lodge the application within 21 days of being fired.

Although the driver defended his decision to lodge it 42 days after the event by saying he was unaware of the time limit, Whelan ruled ignorance was not a justification.

"Leaving the claim for 42 days suggested that Mr Brown lacked conviction that his dismissal was unfair at the time and it may only have become an issue later," Whelan says.

"Further, Mr Brown does not appear to have contested the termination at the time it occurred or taken any other actions apart from those associated with lodging this application."

The issue was originally sent to conciliation but Paramount Transport and Brown failed to reach a settlement.

A spokesperson for the AIRC says a person’s full name is not disclosed in unfair dismissal cases to ensure they are not discriminated against when applying for jobs in future.