'Confused' and 'unfair' Linfox loses IR battle

Date: 05.03.2010

Commission goes to town on Linfox, labelling it "manifestly unfair" and "confused" for sacking worker without a licence

By Brad Gardner | March 5, 2010

A "confused" and "manifestly unfair" Linfox has been forced to reinstate and compensate a worker sacked for not holding a driver's licence.

In a case highly critical of the transport and logistics heavyweight, the NSW Industrial Relations Commission ruled that Paul John Richardson had been unfairly dismissed on July 10 last year.

Despite the company saying a licence was a condition of employment, NSW IRC Deputy President Peter Sams found Linfox knew Richardson had no licence when it hired him two years ago and had never asked him to drive during his tenure.

Sams says the company never warned Richardson his job was in jeopardy and did not give him a chance to defend his position or the allegations against him.

Furthermore, Linfox had authored the dismissal letter on July 3 - six days before Richardson was invited to a meeting to discuss his position.

"Plainly, the respondent had made up its mind to dismiss Mr Richardson long before he was given any opportunity to defend himself. This was manifestly unfair," Sams says.

Linfox was ordered to return Richardson to his position prior to his dismissal and pay $1200 a week to him from the date of the sacking to February 15 this year, the date of the hearing.

Sams says Linfox's decision to dismiss Richardson amounted to a false reason because it did not accurately represent the work he performed.

Richardson's position was a route delivery driver, but he had only performed offsider duties such as loading and unloading for Linfox during his two years.

"In this case, there is no doubt that the respondent never asked, or required, him to work as anything other than an offsider," he says.

"Mr Richardson was performing the inherent duties of his role and had been doing so without question for two years."

Linfox's case was also ridiculed as having "spectacularly backfired" when it was revealed another worker was in a similar position to Richardson but had not been sacked.

"In my opinion, the respondent appeared to be confused as to the reasons for Mr Richardson's dismissal and this leaves the Commission...unclear as to the real reason for his dismissal," Sams says.

He says Richardson had attached a copy of his learners' permit to his job application.

The lawyer representing Linfox, Laurie D'Apice, told Sams the company could not find Richardson's job application, but then claimed he must have falsified it anyway.

He argued Richardson committed a "trail of misrepresentation" because he told the company he had a valid licence.

Richardson was formerly an offsider at FCL and moved to Linfox when it acquired the company. During the transition, FCL employees were told their current terms and conditions would not change.

Sams also accused Linfox of exacerbating unfairness to Richardson.

The Commission was told Linfox had written on Richardson's separation document he had resigned, meaning the worker was unable to receive Centrelink payments. He is now behind in mortgage repayments.

Sams labelled the operator disingenuous by claiming it tried to help Richardson obtain a licence when he had to use his own entitlements to do so.

Linfox claimed Richardson breached his terms and conditions because he was employed as a driver. Sams rejected the argument by saying the fact Linfox paid him as a driver is irrelevant.

Richardson has now obtained a licence.