Driver sacked for allegedly damaging vehicles and equipment, misusing property and not following load restraint instructions loses unfair dismissal claim
By Brad Gardner | June 3, 2013
A former Melcrest Auto Express truck driver sacked for a litany of alleged misconduct issues has been accused of launching a “vexatious” unfair dismissal claim against the vehicle transport firm.
Fair Work Commission Senior Deputy President Peter Richards threw out Andrew Hayes’ claim because he failed to meet the basic conditions required to make an unfair dismissal application.
Hayes had not served the minimum period of employment and he lodged his submission outside the set timeframe, leading Melcrest to object to the application on jurisdictional grounds.
Hayes failed to respond to repeated attempts by the FWC to contact him about his application, prompting Richards to say the driver had no interest in pursuing the matter.
“The claim by definition must be of a frivolous nature or else merely vexatious in its motivation if the applicant has no intention to pursue the substantive merits of the case or its jurisdictional foundation,” Richards says.
Melcrest Auto Express told the FWC Hayes was fired for allegedly damaging a number of vehicles he transported, unlawful use of a company truck, unathorised use of equipment and misuse of a company telephone.
Furthermore, Hayes was also terminated for allegedly failing to report damage to vehicles, damaging the interior of a truck and failing to correctly restrain vehicles according to instructions.
The FWC was told the load restraint failure caused one vehicle to come off the back of the truck while being transported.
The final straw came on December 22 when Hayes allegedly caused the handrails of his truck to come into contact with overhead electrical wires.
“The wires were said to have been bundled up and thrown on the ground in between other trailers that were parked up,” Richards says.
Melcrest considered the December 22 incident sufficient to dismiss Hayes.
It argued the driver should not have access to unfair dismissal because the company was a small business and Hayes was employed for less than 12 months.
The Fair Work Act states employees must work for a small business for one year to be eligible to make an unfair dismissal claim. Hayes was employed as a casual driver between May 25 and December 26, 2012.
Furthermore, the Act states the length of service for a casual employee does not count toward the employment period unless it is on a regular basis and the employee has a reasonable expectation of continuing in the job.
Melcrest told the FWC it informed Hayes he would not become a permanent employee until he could complete his duties diligently.
Hayes lodged his unfair dismissal claim on January 11 this year. Those who were dismissed on or before December 31, 2012 were required to make an application within 14 days of being dismissed.
The length of time was extended to 21 days from January 1, 2013.
“I note in this matter that the respondent has on its face a substantive defence to the claim made against it by the applicant,” Richards says.
