TNT forced to reinstate driver; zero tolerance questioned

Date: 27.04.2010

Trucking industry urged to show leeway on zero tolerance policies after TNT is forced to reinstate driver

By Brad Gardner | April 27, 2010

An industrial relations commissioner has called for trucking operators with zero tolerance policies to show some leeway in the wake of an unfair dismissal case involving TNT Express.

Commissioner Annette Larkin ordered the carrier to reinstate Harry Zoumas after it sacked the driver for pushing another employee, Karim Anbar, who had kicked and slapped him.

As well as sacking Anbar, a TNT depot manager, David Leak, argued the company had to terminate Zoumas because it did not tolerate harassment or bullying in the workplace.

But Larkin ruled that Zoumas was dealt with harshly because he did not retaliate with violence.

While saying zero tolerance to such issues is appropriate, Larkin says operators need to realise "life is not always black and white".

"There are at times shades of grey. A workplace policy, in my view, must be applied having regard to the particular circumstances of an incident and/or situation that may arise," Larkin says.

"I do not condone the applicant’s response to Mr Anbar’s behaviour. I am, however, persuaded that he was provoked into the action that he took."

TNT was also ordered to remunerate Zoumas for lost pay from January 9 to April 22 this year.

Although Zoumas was terminated on December 9 last year, Larkin imposed a month-long gap for lost pay because the driver "must bear some responsibility for his actions".

Leak argued against reinstating Zoumas on the basis it would undermine TNT’s workplace policies.

"If he was reinstated the policy that we reached agreement with the TWU [Transport Workers Union] over in terms of people’s health and safety would be meaningless. I mean, zero tolerance was intended to be just that," he says.

TNT relied on CCTV footage to sack Zoumas, claiming he verbally harassed and manhandled Anbar.

Zoumas admitted to joking around with Anbar prior to the incident.

But the footage did not capture Anbar kicking and slapping Zoumas, who was forced to rely on witnesses to the event to argue his case.

"On the material before me I am not persuaded that the applicant verbally harassed Mr Anbar," Larkin says.

An order for costs will be made on April 28.