Poor performance, not misconduct, was the problem


Poor performance, not misconduct, was the problem

A vehicle fleet supervisor who was dismissed for failing to ensure drivers observed compliance procedures has successfully argued that his dismissal was unfair.


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A vehicle fleet supervisor who was dismissed for failing to ensure drivers observed compliance procedures has successfully argued that his dismissal after almost eight years employment was unfair.

The Fair Work Commission found that the employer had not adequately trained him in compliance procedures and should have given him a warning and the opportunity for retraining before dismissing him.

Facts of case

SZ’s job title was bulk fleet supervisor. He was also given relief duties (when the employee who usually did that work was absent) of reviewing drivers’ run sheets and signing off on them as either compliant or non-compliant with the employer’s requirements. The employer claimed that he was trained in this work by the employee he was to replace in the role. SZ disputed that the employer also gave him written instructions referring to 13 items he was required to check.

The run sheets were designed to ensure drivers’ compliance with policies including safety, fatigue management, and chain of responsibility (COR) laws. Drivers of large trucks also had to keep a work diary.

Eventually, the checking role became a permanent part of SZ’s job. He then had to check 70-80 sheets per day in addition to his existing work duties.

The employer presented evidence, based on an audit, that SZ had signed off a large number of sheets as being compliant when they were not. The errors included incorrect recording of hours worked and rest breaks not being taken when required.

It had shown SZ some but not all of the incorrect sheets during several meetings with him. There was no record of SZ having disciplined any drivers for incorrect sheets or non-compliance, and the FWC commented that it was possible he believed that all the sheets he checked were compliant.

When the employer presented him with evidence of non-compliance and asked for his response, he claimed that he had not been trained in how to check the sheets properly, which the employer disputed. The employer then decided to dismiss him, after gaining the impression that he failed to understand the importance of the compliance procedures, gave no indication that he was willing to cooperate to improve his knowledge and work, and because his main response had been to blame others. The employer claimed he had breached its workplace policies and a document titled Our Ethics and Our Minimum Standards. The latter referred to safety and compliance, among other issues.

After his dismissal, the employer conducted another audit that found widespread non-compliance by SZ. However, it did not discuss these latter breaches with him.


SZ’s repeated non-compliance was a valid reason for his dismissal. However, he only had the opportunity to respond to some of the allegations against him, and not the more serious ones. Also, the employer incorrectly treated the matter as misconduct, when it was poor performance. SZ’s conduct was not wilful or deliberate, rather it was a lack of due diligence.

Therefore, he should have received a warning instead of being dismissed. His responses to allegations indicated that he was willing to be retrained. Taking those matters plus his length of service and previous record into account, the FWC found that his dismissal was unfair.

SZ had since obtained other employment after being unemployed for 10 weeks. The FWC awarded him compensation of $17,504.79.

The bottom line: It is important to distinguish between poor performance and misconduct. The latter is deliberate, the former may not be, as in this particular case. Where poor performance is the cause of problems, the employer should consider issuing a warning and providing further training before contemplating dismissal.

Read the judgment

Zirilli v StarTrack Express Pty Limited [2019] FWC 3557, 13 June 2019
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