KKR Transport ordered to compensate dangerous goods driver sacked for inadvertently contaminating 12,000 litres of fuel
By Brad Gardner | January 18, 2012
A dangerous goods driver sacked for unintentionally contaminating 12,000 litres of fuel has walked away with $1680 after his former employer was ordered to compensate him.
Mark Eustace received his marching orders on June 30 last year when, during a delivery to a customer, pumped diesel fuel into a premium unleaded fuel compartment.
In the termination letter handed to Eustace, KKR Transport blamed the mistake on driver negligence and a failure to follow directions. Prior to sacking him, the Queensland-based fuel transport operator said it would incur losses and damage to its reputation because of the incident.
However, Fair Work Australia Senior Deputy President Peter Richards says the driver’s actions did not justify the company’s decision and that the sacking amounted to unfair dismissal.
“The incident was important and warranted disciplinary action, but it was not so important…as to contribute to a decision…to terminate the Applicant’s employment,” he says in his written judgement.
Richards says Eustace was not given an opportunity to respond to the reasons for his dismissal, which also included his attitude toward management.
“In the very particular circumstances of this matter, I find that the Applicant was harshly, unjustly and unreasonably dismissed from his employment,” he says.
Richards awarded Eustace $1680 for lost salary and says the fuel blunder did not amount to negligence because it was not performance related.
The driver blamed the error on being upset over a company memo sent to staff about truck washing, car parking arrangements and working on public holidays.
Richards cited a “dysfunctional” relationship between the driver and management, adding that the memo became emblematic of wider concerns Eustace had with the running of KKR Transport.
Eustace grew suspicious of the company’s actions and secretly recorded conversations between him and management to, he says, protect his interests.
During proceedings, he also described one superior as a “shady character”, “vindictive”, “dishonest” and “sleazy”.
Following the fuel contamination incident, Eustace became argumentative when KKR management phoned him seeking a meeting.
He accused the company of intending sack him and demanded to know if the meeting would be for disciplinary purposes. He avoided committing to attending.
“I won’t, I won’t be coming to talk to youse unless you tell me what it is about because if it’s going to be a confrontation, I want someone to represent me because I don’t want to argue with you,” Eustace told his manager in a recorded phone conversation on the day of the incident.
“I’ll just park the truck up now if you want to f**king shaft me, you know.”
Richards criticised Eustace for his conduct, saying the company had given a reasonable and lawful direction to him.
“While no employee is required to be servile, the Applicant…would be expected ordinarily to conduct himself in a civil and cooperative manner in respect of a reasonable request made by his employer,” he says.
Richards also pointed the finger at KKR Transport, saying management could have told the driver it would be a disciplinary meeting and that his argumentative reaction to a reasonable direction might lead to further disciplinary action.