Driver unfairly sacked over 'silly' incident

Cases

Driver unfairly sacked over 'silly' incident

A truck driver who was sacked for a 'minor and silly' incident has been awarded the maximum compensation for unfair dismissal.

A truck driver who was sacked for a 'minor and silly' incident has been awarded the maximum compensation for unfair dismissal.

Crashed into container


The driver was dismissed from Top Cut Foods after a decade of employment.

On September 6, 2019, he was driving a van in the company car park when he struck a metal container. The driver said he failed to stop after his foot hit a 'hump' near the brake pedal. He estimated he was travelling at 2-3km per hour at the time.

The site manager attended the incident and said "what the f*ck have you done".

According to the driver, the manager swore and yelled at him, said the van was uninsured and told him the incident had 'cost him his job'. A disciplinary meeting ensued and the driver was dismissed and walked off the site.

The site manager told him there was no excuse for the incident, it was 'minor and silly' and his conduct had put others at risk.

He said 'other matters' had also contributed to the dismissal decision. These included a written warning in June 2019 after the driver put the wrong fuel in a vehicle, inappropriate use of facilities at a customer's premises and failing to make prison deliveries as required.

The manager also claimed that the driver appeared to be becoming 'more forgetful', his mind didn't appear to be on the job and his performance was getting worse.

Arguments


The driver pointed out that the fuel issue was an 'honest mistake' and an investigation into the inappropriate use of toilet facilities had not led to any disciplinary action or findings against him. 

He said the damage to the van was minimal, other drivers involved in more serious incidents had not been dismissed and he was being made a 'scapegoat'. In particular he referred to 'Joe' who had totalled two vans and had not been dismissed.

Decision


Commissioner Michelle Bissett found there was not a valid reason for the dismissal. 

She said other drivers had been involved in incidents and "if those matters are accepted as part of doing business then to rely on them to justify the dismissal of [the driver] is unreasonable in that [the driver] was treated differently to other employees".

She said Top Foods had not raised any performance issues with the driver since the fuel incident warning.

"It seems to me that if the incidents that pre-dated the fuel incident were of such importance or demonstrated an accumulation of inappropriate conduct or performance these should have been raised, or would have influenced, the decision taken to issue the first written warning in June 2019," the commissioner said.

"Had those incidents occurred after the fuel incident, it is not apparent why they would not be written up in a more formal manner. That they apparently did not otherwise warrant some formal counselling report raises a question as to the validity of them now being taken into account to justify [the driver's] dismissal.

"In any event [the site manager] described the incident of 6 September 2019 as ‘minor and silly’. Such a description does not suggest that the incident, even in conjunction with other matters, would justify dismissal."

Commissioner Bissett accepted that the container incident was a ‘near miss’ but noted the HR manager's evidence that not all near misses warranted dismissal. She also took into account there was no one  in the immediate vicinity of the incident (the nearest person was about 50 metres away).

For these reasons, she was satisfied the dismissal was unfair.

Remedy


The driver sought reinstatement but this was rejected.

The commissioner said the fuel issue and the collision meant the employer had lost trust and confidence in the driver.

She found the driver would have remained employed for a further four years, which equated to $165,980 plus superannuation.

As the amount exceeded the compensation cap, the driver was awarded $20,747.50.   

Read the judgment


Enzo Liistro v Services of Top Cut Foods (Vic) PL T/A Top Cuts (U2019/10043)[2020] FWC 70
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