Dismissed casual truck driver awarded compensation for unreasonable dismissal

Dismissed casual truck driver awarded compensation for unreasonable dismissal

Despite finding that waste giant Cleanaway Operations Pty Ltd (Cleanaway) had a valid reason for terminating a casual employee who falsified his run sheets and misrepresented fatigue breaks, the Fair Work Commission determined that his termination was unreasonable in the circumstances. In doing so, the Commissioner raised the spectre that other factors played a role in the decision to terminate the driver.

The employee had been engaged as a casual Driver – Rear Lift by Cleanaway between 8 November 2019 and 30 November 2021, when he was terminated for serious misconduct with immediate effect. The reasons given to him for termination were falsifying run sheets and failure to take fatigue breaks in accordance with heavy fatigue management law and company policy.

However, Commissioner McKinnon cast doubt on several aspects of Cleanaway’s treatment of the employee, including the reasons relied upon for his termination.

The Commissioner acknowledged that the national laws Cleanaway referenced in the termination letter did not apply to the driver due to the size of the vehicles that he drove.

She also accepted the driver’s submission that the variations in the run times and fatigue breaks that he submitted were intended to avoid getting himself or his supervisors into trouble for prioritising the completion of work over driver safety.

Further, the Commissioner accepted that when the driver took a shorter break than required or did not take his scheduled break on time, the supervisor on duty most likely knew about it because he almost always contacted his supervisor prior to taking a break. The Commissioner also acknowledged that supervisors, on occasion, had requested the driver to delay his break to meet operational requirements.

The Commissioner also voiced her concerns about how the driver was treated after being informed he had the right to seek conversion to permanent part-time from casual in June 2021. Cleanaway responded by delaying his request on several occasions, failing to provide the requisite forms, not acknowledging his request, and coinciding with a significant reduction in the hours he was rostered to work.

As the Commissioner noted,

“The elephant in the room, in this case, is the relationship between Mr T’s request to convert from casual to permanent employment and the process that led to his dismissal. I am not satisfied that there was no link between the two.”

The Commissioner challenged why the driver was the only employee Cleanaway chose to investigate and subject to disciplinary action, despite knowing that his supervisors were also involved in those breaches.

As she noted in her summation,

On balance, I am satisfied that Mr T’s dismissal was unreasonable. Cleanaway had a valid reason for his dismissal, but the process it adopted in relation to the dismissal was tainted by the issues discussed above. The fact that Mr T was singled out for disciplinary action in its most severe form gives credence to Mr T’s submission that the audit arose in connection with his casual conversion request. No consideration was given to alternative disciplinary action that might equally have resolved Cleanaway’s concerns such as a warning and/or the retraining that was then due and/or the close monitoring of his run sheets for a time”.

In assessing compensation, Commissioner McKinnon determined that the driver’s employment was likely to have only lasted a further three months. It was probable that further scrutiny of his run sheets would have led to a written warning, ultimately resulting in his dismissal.

The Commissioner awarded the driver a gross sum of $21,494.70.

Mr T v Cleanaway Operations Pty Ltd (U2021/11564) 26 July 2022

For queries about misconduct, investigations, procedural fairness, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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