Full Bench rejects leave to appeal of dismissed Health & Safety Representative

Full Bench rejects leave to appeal of dismissed Health & Safety Representative

A Full Bench of the Fair Work Commission has denied a terminated employee permission to appeal against a determination that his dismissal was not harsh, unjust or unreasonable.

The former employee had been employed by Toll Transport Pty Ltd (Toll) as a casual truck driver for 3 years and 8 months on a regular and systematic basis.

In April 2019, he was elected by his workmates as a Health and Safety Representative (HSR), which involved raising issues and representing the safety concerns of workers.

During June 2020, he attended three (3) disciplinary meetings as a support person for a colleague who was facing allegations of misconduct. Following the second and third meetings, the truck driver submitted timesheets that suggested he had worked from the time of the meeting up to and including the start of his rostered shift, being several hours later. He claimed that he was entitled to payment as he had undertaken activities associated with an HSR, not just as a support person.

Following an investigation, Toll decided to terminate him and provided him with a notice of termination on 3 August 2020.

He lodged a claim for unfair dismissal, which was heard before Commissioner Ian Cambridge, who issued a decision on 16 April 2021 dismissing the applicant.

Permission to appeal that decision was heard by a Full Bench comprising Vice President Joe Catanzariti, Deputy President Geoff Bull, and Commissioner Bernadette O’Neill.

Essentially, the appeal rested principally on two grounds. Firstly, Commissioner Cambridge erred by not considering whether the truck driver was entitled to be paid for attending the meetings according to the state WHS Act. Secondly, the Commissioner failed to follow established principles when finding the truck driver engaged in serious misconduct by deliberately falsifying his timesheets.

The Full Bench rejected the first claim, determining that the Commissioner indeed did make a finding that the truck driver was not entitled to payment by the relevant legislation. Further, they accepted that the Commissioner found that the truck driver did not attend the meetings on the basis of his role as an HSR. With regard to the second claim, the Full Bench acknowledged that the Commissioner had appropriately determined, based upon the evidence presented, that the truck driver did not genuinely believe that his attendance at the disciplinary meetings involved legitimate HSR activities.

Consequently, the Full Bench determined that it would not be in the public interest to grant permission to appeal.

M R v Toll Transport Pty Ltd [2021] FWFCB 4261 (19 July 2021)

For questions about terminations, unfair dismissal appeals, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW 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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