Supervisor unfairly dismissed ... while on final warning and after falsifying accident report

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Supervisor unfairly dismissed ... while on final warning and after falsifying accident report

A supervisor has won an unfair dismissal case after being subject to a “first and final” performance management warning, after admitting he allowed an unlicensed person to drive a work-truck. He then falsified the accident report after the unlicensed driver had an accident in that truck.

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A supervisor has won an unfair dismissal case after being subject to a “first and final” performance management warning, after admitting he allowed an unlicensed person to drive a work-truck. He then falsified the accident report after the unlicensed driver had an accident in that truck.

A failure to provide procedural fairness was fatal to the employer’s defence.

However, the unfair dismissal applicant “DL” lost his bid for reinstatement as the Fair Work Commission accepted the employer’s argument that there had been an “irreparable breakdown of the employer/employee” relationship.

Background – the facts


DL was employed by the East Arnhem Regional Council as a Municipal Services Supervisor at Milingimbi – an isolated village of 1000 people accessible only by air or sea approximately 443 kilometres east-by-north of Darwin, in the Northern Territory.

He was responsible for the supervision of two or three staff and at least two of these men had lost their driving licences.

Sometime around June 2016, one of the workers was driving a rubbish truck when there was an incident of some kind that resulted in the bumper of the truck being bent.

On 15 August 2016, DL then stated in an Accident & Incident Report that he was driving the truck. Section 7 of the form stated that any signatory would be declaring that the information on the form was “true and correct” and that no other information had been withheld.

DL then signed the form.

A few weeks later, on 13 September 2016, DL took part in a tele-conference in which, according to a letter from the employer, DL stated that “recently we had an incident where [we] knew that we had no licensed drivers but decided anyway to use the staff to operate the vehicle. The driver bent the bumper then I had to jump in and take the blame”.

Also of note, in late August – after DL had signed the form but before he admitted to not being the driver – DL received a first and final warning in respect  of alleged unsatisfactory performance, a lack of care in vehicle cleanliness, paperwork and maintenance.

DL was then dismissed a few weeks later on the grounds that he had breached the Council’s code of conduct by falsifying a critical incident report, failing to comply with policies and procedures, not being truthful, not acting with integrity and not conducting himself in a proper manner.

DL then made an application to the Fair Work Commission claiming that he was unfairly dismissed.

Held by the Commission


Commissioner Bissett noted that DL did not take issue with the Council’s assertion that there was a valid reason for the dismissal and so concluded that DL accepted that he did, in fact, allow an unlicensed person to drive the truck, falsify the report and mislead the Council.

“Allowing unlicensed drivers to drive [Council] vehicles (including trucks) is a serious matter and does provide a valid reason for dismissal. The consequences for [the Council], had there been a reportable accident, would be severe,” the Commissioner said and then ruled that the reason for dismissal was valid.

Commissioner Bisset then ruled that, although the decision was valid, he was not satisfied that the decision to terminate was justified in the circumstances. He also criticised Council’s procedure as DL was not notified of the reason for dismissal and was not given an opportunity to respond to a potential dismissal before the decision is taken. Accordingly, it was held that the Council denied procedural fairness to DL.

Consequently, the Commissioner ruled that DL was unfairly dismissed.

DL also sought reinstatement but this was “strongly” opposed by the Council owing to what it described as an “irreparable breakdown of the employee/employer relationship”. The Commissioner agreed with the Council on the grounds that DL did not display “the requisite level of professional conduct in managing staff such that reinstatement is reasonable”. Commissioner Bisset instead decided that compensation would be paid and sought submissions from the parties as to the amount to be paid.

DL v East Arnhem Regional Council [2017] FWC 1515 (24 March 2017)

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