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Full decision can be read here.
What happens when an employee, whilst on leave, refuses to return, or allowed to be collected, the employer’s vehicle?
In this case it resulted in the employee’s dismissal for serious misconduct. Not before numerous emails to and from the company and the employee, including (from the employee): “[U]se [sic] ain’t getting s**t from me or my property especially when use [sic] can’t even pay me what I signed up for”?
The short answer is that the Deputy President, presiding over this matter, found that the company had a valid reason for dismissing the employee, and that the dismissal was not unfair. The application for unfair dismissal was therefore dismissed.
This decision also reinforces the importance of having contracts of employment and company policies (in this case pertaining to the use of company vehicles). It also provides direction on “serious misconduct”.
The events leading up to the applicant’s dismissal:
- The applicant commenced employment with the company October 2017 as a field tester. For the purpose of carrying out her duties as a field tester, the applicant was provided with a motor vehicle, which was owned by the company.
- The applicant’s employment contract set out the following concerning a Company Motor Vehicle:
“You will be provided with a fully maintained company vehicle for work purposes and limited personal use. The provision of this vehicle is subject to the [the company’s] Vehicle Policy and Guideline.
“It is a condition of all arrangements that you maintain all of the necessary licences, obey all applicable road rules and never drive the vehicle with drugs or alcohol in your system”.
- Whilst the employment contract stipulated that the provision of the company vehicle was subject to the company’s Vehicle Policy and Guideline, the applicant said she was not provided with the Vehicle Policy and did not have access to it as her email/intranet access was not set up. However, apart from her assertion, there was no evidence to show that he did not have access to the company’s intranet.
Workers Compensation claim
On 13 September 2019, the applicant made a workers’ compensation claim and was assessed as having no capacity to work from 12 to 19 September 2019. The applicant gave evidence that she had been repeatedly bullied throughout her employment with the company, not treated the same as everyone else on several occasions, had been stalked on fake job sites, and his anxiety had become unbearable – hence the reason for taking leave.
The company directed that the applicant return the vehicle or arrange or make it available for collection by the company whilst she was on leave.
Given the lack of cooperation in seeing to the vehicle’s return, the company’s HR Manager formalised a directive that the vehicle would be collected at a specific time and address and advised that the applicant should remove any and all personal items before the time of collection.
The applicant’s response at this point was: “Sorry I’ll be unavailable to do so until my contract or employment has ended. This car is part of my package and it stays with me”.
Which in turn led to the email the following day: “[U]se [sic] ain’t getting s**t from me or my property especially when use [sic] can’t even pay me what I signed up for”.
[Ed: At this point I would like to apologise to the applicant for the failure of Australia’s education system].
The company responded by advising that the vehicle was “a tool of trade” vehicle, and not part of the applicant’s remuneration package and if the vehicle was not made available for return, the company would terminate her services.
This, being an impasse, resulted in the company directing its solicitors to issue the following letter:
I act for [the company].
I understand that you are representing [the applicant] in relation to an employment dispute with [the company].[The applicant] is absent from work due to illness and has asked [the company] to direct communications to you.
Whilst [the company] does not concede that it is obliged to comply with any directive from [the applicant] about who to speak to, I have been asked to contact you in this instance in the hope that you can assist [the applicant] to understand her obligations and responsibilities.
- [the applicant] has exhausted her paid personal leave, and by agreement annual leave, but seems to be under the misapprehension that she will continue to be paid for continued absences after all of her leave has expired.
- [the applicant] has retained the [company] vehicle which she used in the course of the work and has threatened to sell it if she does not receive payment for her absence. The vehicle is a tool of trade which [the applicant] does not have a right to continue to possess. [The applicant] has been asked to make arrangements for its return but she has repeatedly refused.
- These, and other issues with [the applicant’s] conduct (including evidence of unsafe driving) mean that there is a serious disciplinary discussion that must occur when she returns to work. By refusing to return the [the company’s] vehicle [the applicant] is only making these matters worse.
I would appreciate if you could contact me as a priority to confirm arrangements for the return of the [the company] vehicle. If [the applicant] fails to return the vehicle she may be considered as having refused a lawful and reasonable request which could give rise to a basis to terminate her employment…”
There was no reply from the applicant’s representative, however there were email exchanges between the applicant and the company; and 18 and 21 October 2019, two company employees attended the applicant’s residence and unsuccessfully attempted to retrieve the company vehicle.
The applicant was given an ultimatum by email directing the applicant:
“…to return the company vehicle by no later than 3:00 pm on 25 October 2019 [and] if you do not comply with this direction your continuing serious misconduct will result in your employment being terminated”.
The company texted the applicant alerting her to the email.
The applicant’s response was “[N]o worries I’ll see use [sic] in court”.
Finally, the applicant agreed that both the company vehicle and mobile phone could be collected from her residence on 4 November 2019 between 12.00-3.00 pm. Both were collected and both were damaged – the phone beyond repair.
Following the collection of the company’s property, the applicant sent abusive text messages to the company, including:
“How dare u bring u my f**king personal life u maggot c**t…F**king piece of s**t are U absolutely discust [sic] me…Might just get into ur [sic] personal life hey! Know a few people that will be able to help me out with a dog c**t like u…Want to talk me at fake sites…Yuck”.
The Deputy President concluding that:
“There could be no doubt that the direction to return the company vehicle was lawful and reasonable. An employer clearly has authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable”.
In R v Darling Island Stevedoring and Lighterage Co Ltd; Ex part Halliday, (Darling Island Stevedoring) it was held:
“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable”.
The Full Bench in Briggs v AWH stated that the determination of whether an employer’s direction was a reasonable one did not involve an abstract or unconfined assessment as to the justice or merit of the direction. The employer therefore is not required to demonstrate that the ‘direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties’. Adopting the approach identified in Darling Island Stevedoring, the Full Bench cited Dixon J, quoting:
“But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled”.
The applicant’s employment contract
The terms of the applicant’s employment contract and the Vehicle Policy, clearly stipulated the circumstances in which a vehicle was provided, the obligations that fell upon the employee, and that ultimately the company retained sole discretion concerning the usage of the company vehicle whilst on leave. There was no compelling evidence adduced to support the assertion that the company vehicle formed part of the applicant’s employee entitlements (salary package), or that she had unfettered access and use of the company vehicle whilst on leave.
The work carried out by the company’s employees required that the company provide them with vehicles, and it was common practice for the company to direct its employees to return the vehicles whilst on leave.
Notification of the reason and an opportunity to respond
The Deputy President provides an advisory that:
“At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality, and that the requirement is to be applied in a common sense practical way in order to ensure that the employee is treated fairly.
“The Full Bench in Royal Melbourne Institute of Technology v Asher in citing a number of cases:
“Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical common-sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section”.
The Deputy President’s decision considered the term “serious misconduct”’, stating that it does not operate as a fixed standard for the determination of the type of conduct by the employee which may warrant summary dismissal; citing Sharp v BCS Infrastructure Support Pty Limited, the Full Bench (in citing other decisions):
“[T]here is no rule of law that defines the degree of misconduct which would justify dismissal without notice’, and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship”.
“Wilful or deliberate behaviour amounting to serious misconduct is conduct which strikes at the heart of the employment relationship. In North v Television Corporation Ltd Franki J stated:
“It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd  2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions”.
Onus of proof on employer
The Deputy President finding:
“Clearly, [the company] bears the onus of establishing the serious misconduct. The applicable standard of proof is on the balance of probabilities, but the more serious the allegation, the higher the burden on the employer to prove the allegation”. [My emphasis].
The DP conducing that…
“I am satisfied that [the applicant’s] misconduct was manifestly serious and in clear breach of the obligations she had under the Vehicle Policy, her employment contract and general duties as an employee. The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and, importantly, mutual trust. [the applicant] clearly had the trust of [the company] to do what was right concerning the company vehicle, that was to return it on direction to do so. It was after all not hers to keep or to sell. But her actions manifested a wilful disregard of the repeated lawful and reasonable directions of [the company]”. [My emphasis].
“It is therefore my conclusion that the ‘trust’ and ‘confidence’ essential to the relationship of employer and employee had been destroyed. There was, in my view, a valid reason for terminating the employment of [the applicant] based on her serious misconduct”.
There was no mention of the status of the workers compensation claim.