NBS Transport done for unfair dismissal

Trucking operators that don't give drivers a chance to respond to allegations before sacking them face unfair dismissal claims

By Brad Gardner | August 19, 2010

Trucking operators that do not give their drivers a chance to respond to allegations before sacking them face the prospect of being caught out under unfair dismissal provisions.

Fair Work Australia has ordered NBS Transport to pay Michael Osmond five weeks pay because it fired him after finding out from his former employer he was caught drink-driving and had also damaged equipment in a separate incident.

One of NBS’ owners, Andrew Walczak considered Osmond failed to disclose the incidents in his employment application. But while told he was sacked, Osmond was not given the chance to put his case to NBS.

"He [Walczak] did not ascertain the veracity of what was told to him and in particular get the Applicant’s version," Fair Work Australia Commissioner Frank Raffaelli says.

"This does not represent a sound basis for termination. Nor is there any basis for terminating the Applicant because he did not reveal the drink driving incident. He was not obliged to do so."

Osmond was sacked on January 12 this year. NBS Transport sought to have the unfair dismissal claim thrown out because the driver did not meet the minimum six months work time required under the Fair Work Act to lodge a claim.

But the Act also 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 ruled in the original hearing last month.

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

NBS argued Osmond would have been retained if not for his shortcomings because the company operates dangerous goods vehicles and does not tolerate any driver returning an alcohol reading.

The Transport Workers Union (TWU), which represented Osmond, says the driver lost about five weeks in pay since being terminated because he gained work elsewhere on smaller earnings.

"In all the circumstances I have decided to award an amount of five weeks pay," Raffaelli says.

He encouraged Osmond and NBS to work out an agreed figure, but added that he would step in to determine the rate of pay if negotiations broke down.

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