Fair Work Australia upholds Linfox's decision to sack a driver caught deliberately falsifying fatigue records
By Brad Gardner | January 19, 2011
Fair Work Australia has upheld Linfox’s decision to sack one of its truck drivers for deliberately falsifying fatigue management records.
Commissioner Ian Cambridge threw out an unfair dismissal claim from Tu Noanoa who was busted in July last year for exceeding his maximum work hours.
He attempted to conceal the breach but wrote on his timesheet that he was unloading his truck at the same time as having a rest.
Noanoa confessed to deliberately fudging his records when Linfox confronted him about the discrepancies, prompting his sacking.
“The deliberate falsification of an important employment related document such as daily timesheet is, in the absence of any justification, gross and wilful misconduct that justifies summary dismissal,” Cambridge says.
“According to the employer, the applicant was a professional driver and a deliberate breach of the fatigue management legislation represented proper basis for dismissal.”
Cambridge upheld Linfox’s claim that Noanoa’s actions irreparably damaged the relationship of trust and confidence between an employee and employer.
He was also critical of the Transport Workers Union (TWU), which represented Noanoa, because the driver openly confessed to breaching fatigue laws.
“It was therefore somewhat unusual that…a deliberate breach of heavy vehicle driver fatigue management regulations would be supported by the TWU, an organisation which has, over many years, strongly advocated for the imposition and enforcement of stringent driver fatigue management regulation,” Cambridge says.
However, he criticised Linfox’s decision to prepare a termination letter before giving Noanoa the opportunity to defend himself at a disciplinary meeting.
“This particular aspect of the employer’s procedure must attract strong criticism,” he says.
While saying Noanoa was denied “natural justice”, Cambridge ruled that Linfox’s actions did not undermine the reason for the driver’s dismissal.
The TWU complained there was no union official present at the disciplinary meetings held by Linfox, but Cambridge says there was no evidence that Noanoa was denied a support person.
It claimed Noanoa was unfairly dismissed because the incident represented “a momentary lapse of judgement” rather than serious misconduct.
According to the union, Linfox should have warned Noanoa considering he had worked for the company for 10 years without any official warnings.
Although the TWU claimed Noanoa committed the breach to help the operator, Cambridge says the driver’s actions had potentially serious consequences for Linfox.
Fatigue management laws restrict the number of hours drivers can work each day and mandate rest breaks at regular intervals. Drivers and operators caught breaking the laws face hefty fines and convictions.