NBS Transport forced to defend driver sacking

NSW operator will be forced to defend sacking of a truck driver after Fair Work Australia upholds unfair dismissal application

By Brad Gardner | July 12, 2010

A NSW transport operator will be forced to defend its decision to sack a truck driver after Fair Work Australia upheld an unfair dismissal application.

Commissioner Frank Raffaelli last week granted Michael Osmond permission to pursue his claim after finding he met a requirement to lodge an unfair dismissal through Fair Work Australia

NBS Transport tried to have the application dismissed on jurisdictional grounds because Osmond did not meet the minimum six months work time required under the Fair Work Act to lodge an unfair dismissal.

But the Act allows a person to launch a claim if the work they performed under a previous employer is the same or similar to the work under the new employer and if there is a connection between the two.

"In early December 2009 the applicant’s employment was terminated with Camgas, and at or about the same time he commenced work with the respondent," Raffaelli says.

"The applicant says that his work did not change. He continued to drive the same truck and do his usual runs.

"I find that on the evidence, the work performed by the applicant for the respondent was the same or substantially the same as that performed for Camgas."

Raffaelli found there was a connection between Camgas and NBS because the latter had taken over Camgas’ vehicle and contract runs.

Since being sacked, Osmond says he still sees the truck he used doing the same work.

Raffaelli also questioned the argument against hearing Osmond’s claim because he was a casual.

Under the Act, casual employment does not count toward staff employment period unless there is the expectation of continuing work on a regular and systematic basis.

"I find on the evidence that his employment was on a regular and systematic basis and that he had a reasonable expectation of continuing employment with the respondent on a regular and systematic basis," Raffaelli says.

The dispute between Osmond and NBS was originally sent to conciliation but both parties failed to reach an agreement.

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