FWC defines lawful but unfair driver dismissal

Termination deemed justifiable but phone dismissal taken to task

FWC defines lawful but unfair driver dismissal
Fair Work Commission has ruled on a dismissal case


A company may have grounds to dismiss a worker but must still follow fair employment termination process, a recent Fair Work Commission (FWC) case highlights.

The level of offending by a driver was such that an unfair dismissal ruling was not accompanied by a compensation remedy.

However, the company in question, Hi-Trans Express, and by extension any operator in a similar situation, has been reminded to offer face-to-face interaction and an "opportunity to show cause or plead for reconsideration opportunity to show cause or plead for reconsideration".

The case has prompted an industrial alert from the Queensland Trucking Association (QTA), which points to the FWC taking issue with dismissal via electronic channels; citing a similar case involving a security provider using a text to dismiss an employee.

How a rival confidentiality breach resulted in a $400,000 penalty, here

In this case, Hi-Trans was found to have issued the driver two warnings in 2018 for speeding and then dismissed him in October last year when its monitoring systems showed that he had driven at 116km/h in a 100km/h zone at 4am in October 2019.

Commissioner Ian Cambridge found the company had established a valid reason, accepting its argument that the driver's misconduct "represented a critical infringement and gross breach of safety".

The commission rejected the driver’s "unfounded, spurious and unlikely propositions" to explain his conduct – including disturbed sleep, truck unfamiliarity, issues with the GPS system and driving position making the speedometer difficult to read – which "only served to provide additional foundation for an understandable but very regrettable loss of trust and confidence".

The commissioner added that the driver's failure to turn on and log into the GPS installed in the 60-tonne vehicle would in itself provide a valid reason for dismissal, noting that it would have warned him when he hit 106km/h and again at 116km/h.

"In addition, the failure of [the driver] to log into the installed GPS system has serious ramifications for potential avoidance of mandatory monitoring of heavy vehicle driver fatigue," he said.

However, the commissioner took issue with dismissal via telephone, deeming it "callous and undignified".

"Advice of dismissal should not be conveyed by telephone, text message or other electronic communication.

"Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face.

"To do otherwise is unnecessarily callous.

"Even in circumstances where telephone, text message or other electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and provision of documentary confirmation at the time of dismissal."

The commissioner said that communicating the dismissal by phone also denied the driver the "opportunity to show cause or make other representations to plead for reconsideration of the decision to invoke a penalty of dismissal".

Consequently, the dismissal of the applicant was ruled harsh/unfair, but resulted in no compensation order.


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