Full  decision here.

Introduction

Again, here is an example of the Commissioner (in this case) finding that the punishment did not fit the crime but did have mercy of the site manager in not reinstating the applicant, but instead provided the applicant with the maximum payout plus superannuation.

Background

The applicant was employed by the respondent for about ten years, since September 2009.

The applicant was/is a delivery truck driver with a meat processing company. He was dismissed following a “minor” accident at the respondent’s premises where he drove a truck into a metal container used to store meat, damaging the vehicle.

At the time of his dismissal the applicant had a first written warning on his file in relation to an incident on 24 June 2019 in which he put the incorrect fuel into the truck he was driving. The applicant stating that the error was “an honest mistake”. This “honest mistake” costing the company of the requirement to have the truck towed and the fuel drained was $827.00.

The applicant had also been subject to an investigation into his conduct in using bathroom facilities and accessing a staff room at a site he had undertaken a delivery to in April 2019. This investigation did not lead to any findings against the applicant and no disciplinary action resulted. There were not any details provided in this regard.

The company claimed that there were a range of other performance matters it had raised with the applicant in relation to his performance that did not result in any disciplinary action or warnings.

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The Incident

The applicant had completed a delivery using one of the work vans. On return to the company’s premises he was instructed to use a hire van which had been brought in because other delivery vans were out of commission. The applicant inspected the van and he observed a “hump” of about five inches next to the brake pedal.

Upon commencing to move the vehicle, he was very careful so as not to hit cars parked around him in the company car park. Directly ahead of him were some stacked crates. To get out of the car park he said he had to pull out and turn sharply to the right to avoid the cars and the crates. He said he was going at about 5 km per hour as he drove out. He said he braked to slow down, but his foot hit the hump and he hit a crate instead. He estimated that at the time he hit the crate he was going at 2-3 km per hour.

The applicant described the damage as “small”, despite coolant escaping from the engine compartment.

He then reported the incident to a forklift driver who was nearby, who promptly reported the incident to the supervisor, who in turn told the site manager.

Site Manager not happy

The applicant claimed that the site manager swore and yelled at him, said the van was not insured and told the applicant the incident had “cost him his job”; and told the applicant to go to the office.

Upon entering the office, the site manager advised the applicant that he could have a support person present, however did not allow the applicant time to allow him to arrange for a support person. The site manager, supervisor and administrative person were also present at the meeting.

In the site manager’s view, the applicant was a professional driver and he should know the layout of the vehicle. At the conclusion of the meeting, the applicant’s employment was terminated. He said was walked off the site that day.

But what about the other people who did worse things?

The applicant said that he was treated more harshly than another driver who had “totalled” two vans but had not had his employment terminated, adding that the damage he caused to the van was minimal, and that other vans had dents in the rear doors and no-one else had been dismissed. He said he was made a scapegoat.

What now?

The applicant said he had been working with the company for the last 10 years and was happy there and wanted his job back (reinstatement).

Since his employment was terminated, he had applied for over 40 jobs without success. He said that if his employment had not been terminated, he would have continued with Top Cuts Food for another four years.

The site manager claimed that he accepts that everyone makes mistakes, but the applicant appeared to be becoming more forgetful over the past year, his mind did not appear to be on the job and his performance was getting worse. He also took the opportunity to remind the applicant of the “toilet protocol” when using a client’s facilities.

HR Advice

Prior to the meeting, the site manager sought advice from the company’s HR manager. Based on the site manager’s advice that applicant has a previous written warning and he had a number of diary notes, the HR manager advised that on balance that there was cause for termination, but would leave the final decision to the site manager.

The Commissioner finding…

The Commissioner concluded that the applicant’s employment was terminated because of the incident in which he damaged a hire van, in conjunction with an existing written warning in relation to incorrect fuel in a van, the inappropriate use of toilets at a facility he was delivering to, failure to deliver to prisons as required and a general increase in forgetfulness.

The Commissioner found that this presented a valid reason for the dismissal. In the Commissioner’s view:

“At the time [the applicant’s] employment was terminated he had a first written warning on his file and no more. This was attributable to the fuel incident in June 2019. Beyond the [hire van] incident…there is no evidence of any other matters having been raised with the applicant with respect to his performance since the issue of the written warning. Any incidents prior to the fuel incident warranted no more than some discussion with [the applicant] (to the extent there is evidence of these matters having been raised). The inappropriate use of the toilet warranted no further action (on lack of substantiation of allegations) beyond a reminder of protocol for using facilities at sites he was delivering to”.

Adding:

“In any event [the site manager] described the [damaged van] incident…as ‘minor and silly’. Such a description does not suggest that the incident, even in conjunction with other matters, would justify dismissal”.

Anger

“I accept that Mr Watkins was angry that morning. He was very busy, and he did swear in asking [the applicant] what had occurred. I do not accept that he told [the applicant] that it would cost him his job but did suggest that it could do so.

“While I accept that there was damage done to the hire vehicle (on [the company’s] submission about $5,000.00 plus lost time and the cost of hiring another van) I am not satisfied, on balance, that it provides a valid reason for dismissal in that I do not consider the reason defensible in all of the circumstances. This is not to say that [the company] would not have been justified in taking disciplinary action against [the applicant] but I consider dismissal, in these circumstances, [not] to be justified”.

But what about the other people who did worse things (Part 2)?

The Commissioner relied on uncontested evidence that other employees have been involved in more serious matters than the applicant’s and not had their employment terminated. In particular he referred to ‘Joe’ who had totalled two vans and not been dismissed and to other (unspecified) incidents in which vans had been damaged with no adverse consequences for the relevant drivers. The Commissioner consideration:

“Even if I had found that there was a valid reason for the dismissal of [the applicant] related to the…in conjunction with earlier performance issues, I would have found the decision to dismiss [the applicant] harsh and unreasonable. As [the site manager] said the ‘general matters’ in relation to [the applicant’s] performance happened to other employees as well. It seems to me that if those matters are accepted as part of doing business then to rely on them to justify the dismissal of [the applicant] is unreasonable in that [the applicant] was treated differently to other employees. In addition, that [the site manager] relied on the [“toilet”] matter in part to justify dismissal when he agreed, and told [the applicant], that nothing had come of that investigation is unreasonable”.

 

The applicant also said that the consequences of his dismissal have been substantial as he had just started building a new house and now has no income. The Commissioner:

“Because of the economic consequences on [the applicant] I would have found the dismissal to be harsh”.

To reinstate or not – that is the question?

The company opposed reinstatement on the basis that the working relationship between [the applicant] and [the site manager] has deteriorated. Adding that the applicant’s lack of attentiveness and his forgetfulness were having a negative impact on the business.

The Commissioner recognised that the applicant’s poor performance could have a detrimental effect of the site manager. Adding:

“There are nine drivers at the site delivering to a diverse geographic area…A failure to perform by one driver may well have consequences for others. In circumstances where the deliveries are of food there are also consequences for customers which includes prisons and health facilities”.

“In these circumstances I am satisfied that it is reasonable that [the site manager] should have confidence in his drivers. The June 2019 petrol incident and the September 2019 incident are such that it is reasonable that [the site manager] has lost trust and confidence in [the applicant]. Each of these incidents led to a truck being off the road, deliveries not being made on time and additional costs to the business”.

The Commissioner agreeing with the company that reinstatement is not appropriate given the circumstances.

If not reinstatement, what then?

Considering that the applicant had worked for the company for some 10 years and that he intended to retire in four years, at the age of 70, the Commissioner based her initial “base” on four years’ wages: $165,980.00 plus 9.5% superannuation.

10% for contingencies were deducted, as well as the four weeks’ pay in lieu of notice [Ed: should have been five weeks]. As this well exceeds the compensation cap of $20,747.50:

“The amount I will order that [the company] pay to [the applicant] is therefore $20,747.50 plus 9.5% superannuation paid into [the applicant’s] superannuation account”.

Commentary

  1. When relying on warnings as part of a disciplinary notice, ensure that they compare apples for apples. That is, if someone is on a final warning for attending work late, you cannot rely on this to sack someone for slow work performance.
  2. Mete out discipline in a professional and calm manner – and most importantly – in a consistent “across-the-board” manner. Beware the inherent bias of favouring one employee over another (“halo” and “horns” effect).
  3. Interesting to note that decision of late do not consider the superannuation component of a remedy to form part of the restrictions laid down in the Fair Work Act 2009 (ie maximum of six months’ pay).