Owner-driver wins $100k compo for sacking


Company ordered to reimburse an owner-driver more than $100,000 for unfairly terminating his contract

By Brad Gardner | October 5, 2009

A company has been ordered to compensate an owner-driver more than $100,000 for unfairly terminating his contract.

The New South Wales Industrial Relations Commission has given Downer EDI 21 days from the beginning of this month to pay Brendon Small $102, 500.

Commissioner Peter Connor found the company had no right to terminate Small’s contract after the owner-driver caused almost $30,000 damage to a company-owned trailer on June 27 last year.

Connor says Small’s good driving record was not accounted for and that Downer EDI’s actions altered the contract.

The decision on compensation follows Connor’s ruling in April this year reinstating the owner-driver to his position.

Small resumed work on May 27 and Connor says the reimbursement accounts for the period in which Small was unable to work.

The Transport Workers Union, which represented Small, wanted the Commission to reimburse him $146, 827, while Downer EDI argued Small was owed $79, 795.53.

In making a decision, Connor considered Small had gained casual work in the 11-month period and that current economic conditions meant the driver might not have been given the same level of work as he had received in 2008.

"There are therefore a number of factors which I believe I should bear in mind when assessing the level of monetary compensation for Mr Small…," Connor says.

Small damaged the trailer when he hit a telegraph pole, prompting Downer EDI to label him a "safety risk" and ordering the sub-contractor to find a replacement driver if he wished to continue his association with the company.

Small’s contract was torn up after he refused to agree to Downer EDI’s terms.

While Small had three incidents in 2008, including negligent driving, the Commission ruled his driving record only included two traffic infringements since 1960.

"I see no reason why Mr Small should not return to work for Downer EDI, as he has done for a lengthy period of time already," Connor said at the time.

The 65-year-old driver had worked for Downer EDI for 30 years when the incident occurred.

Downer EDI argued it took three months to fix the damage to the trailer, which the company estimated cost $119, 950 in lost revenue.

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