An employee truck driver was dismissed for failure to report an accident where damage was caused to a company vehicle and for failure to follow safe operating procedures in relation to load restraint. Despite clear direction, the employee failed to wear a helmet and chin strap on at least two occasions whilst loading a truck. K & S Freighters terminated his employment without notice for serious wilful misconduct and the driver was held liable for unlawful termination.
FWA recently accepted that there was a valid reason for the dismissal given the necessity for strict compliance with safety directions. However, there were procedural flaws in effecting the termination. No written warnings in relation to the incidents were given and the termination letter pre-dated the dismissal meeting indicating that the matter had already been determined prior to the meeting.
K & S Freighters was ordered to pay the employee compensation of six week’s salary (including two weeks wages in lieu of notice). The amount of compensation was reduced as FWA deemed that the employee’s employment history at K & S Freighters demonstrated a blatant disregard for safety. [Larry Brown v K & S Freighters Pty Ltd [2010] FWA 1424]
Lessons to be learned
These decisions send a firm warning to employers that correct procedures must be followed when making a decision to dismiss an employee even in circumstances where the dismissal appears to be justified. Ensuring employees have a comprehensive understanding of their obligations to comply with company policies and procedures is paramount.
For further information on anything in this article or related issues please contact the author:
Jim Rutherford
Principal and Accredited Specialist in Workplace Relations Law and Criminal Law
03 5226 8579
jrutherford@harwoodandrews.com.au
Melissa Whelan
Lawyer
03 5226 8589
mwhelan@harwoodandrews.com.au