FWC quashes dismissal of union delegate despite finding valid reason for termination

FWC quashes dismissal of union delegate despite finding valid reason for termination

The Fair Work Commission has quashed the termination of an employee, finding that although their behaviour warranted dismissal, the existence of significant procedural deficiencies during the investigation process as well as the employee’s engagement in industrial activity, contributed to making the decision harsh, unjust and unreasonable.

The employee, ‘SB’, was involved in operating various plant as a waste collector for industry giant, Cleanaway Operations Pty Ltd T/A Cleanaway (Cleanaway) and had been employed for about a year and a month prior to his dismissal on 28 April 2022. He had previously been employed by the Randwick City Council for around 35 years until Cleanaway took over his employment on behalf of the Council, recognising his prior service.

SB performed work in all functions of waste collection, driving both side and rear loader vehicles and, when required, assisting in ‘bin-pulling’ duties. Significantly, he had been the head delegate for the Transport Workers Union (TWU) at the Council’s waste collection operations since 2007 and had been involved in the negotiation for several enterprise bargaining agreements during that time.

On Monday, 4 April 2022, SB became aware that his elderly mother had been taken from an aged care facility to hospital, suffering from high blood pressure. The following day, he attended for work and was allocated to drive a rear loader vehicle. As he wanted to be contactable regarding his mother’s medical condition, he put his mobile phone in the pocket of his pants rather than his usual practice of leaving the phone in his bag.

At about 11:45 am, while driving the vehicle along a suburban street, he received a call and reached into his pocket and retrieved the phone. Noticing the call was from his mother’s aged care facility, he answered the phone, placed the call on loudspeaker, and put the phone into his shirt pocket. During this process, he continued to drive the heavy vehicle, and at times both of his hands were removed from the steering wheel of the vehicle.

Shortly thereafter, he received a second call, from his sister, which he answered whilst holding the phone in his right hand and driving the vehicle. The call lasted approximately 36 seconds.

Another employee noted SB’s behaviour and reported it to management. The following day, the CCTV hard drive was recovered from SB’s truck which confirmed he had used a handheld mobile phone while driving the truck. As the incident represented a breach of a Lifesaving Rule, SB was stood down, and an investigation commenced.

SB attended a meeting on 11 April 2022 with a TWU official as his support person. He acknowledged breaking the rule but mentioned the circumstances of his mother’s condition, which led to his behaviour. When asked what he believed should be the outcome, SB referred to a similar incident event where an employee had received a First and Final Warning.

Nevertheless, Cleanaway formed the opinion that SB’s behaviour warranted dismissal and, at a meeting on Thursday, 21 April 2022, handed him a letter entitled “Proposed termination of employment – opportunity to respond”. He was given until 12 pm the following Tuesday to provide a response, which he did. A final outcome meeting, lasting two minutes, was held on Friday, 29 April 2022, during which he was handed a termination letter.

Commissioner Ian Cambridge described the opportunity given to respond to the dismissal as ‘farcical’, noting critically that the decision maker was never given SB’s written response. As the Commissioner noted, “… the employer engaged in something of an elaborate pretence which attempted to create the appearance of a show cause process. The procedure that was adopted by the employer was both convoluted and perfunctory…”.

The Commissioner was also critical that the decision maker was not given full access to the CCTV footage but instead provided with only two still photographs, which did not reveal SB’s attempts to minimise his transgression. Further, no consideration was given to SB’s personal circumstances that contributed to the incident.

In addition, Commissioner Cambridge felt that SB’s role in engaging in previous industrial action may have influenced the decision to terminate him.

Consequently, the Commission ordered SB’s reinstatement.

SB v Cleanaway Operations Pty Ltd T/A Cleanaway (U2022/5500) 24 November 2022

For queries about safety breaches, conducting investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 130 925 529, 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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