FWC quashes termination of employee involved in vehicle incident

FWC quashes termination of employee involved in vehicle incident

FWC quashes termination of employee involved in vehicle incident

The Fair Work Commission has determined that an employer did not have a valid reason to dismiss an employee involved in a relatively minor single-vehicle incident.

The worker ‘BF’ had been employed for nineteen months as a Supervisor by Orana Australia Ltd (“Orana”), a business operating in the community sector that provides various supports for persons living with disabilities and is funded through NDIS.

Prior to the incident that led to his dismissal, he had an unblemished work record with no disciplinary history.

BF was a full-time worker whose duties often required him to drive clients to local locations, and it was a condition of his employment that he be licensed to drive a vehicle.

On the morning of 17 May 2023, he was driving a vehicle with three clients inside when he struck a wheelie bin that had been left on the road. At the time, he was driving at around 30km per hour. There was no damage to the vehicle or the bin, nor were any of the occupants injured.

He claimed that he had been momentarily distracted, reaching for some keys in his pocket.

He did not report the incident, believing it was trivial.

Around lunchtime, he was approached by his manager, who became aware of the incident through one of the clients and told BF that he needed to make a written statement.

The following day, Orana decided the incident was serious enough to warrant an investigation and suspended him on pay.

In deciding to terminate BF, Orana believed that that he failed to show remorse or insight into the seriousness of his conduct and were particularly concerned as to what may happen in the future if he continued driving with clients in a vehicle and took issue with his initial failure to report the incident.

As Deputy President Peter Anderson noted,

“The allegation is that Mr (F) drove without due care, putting clients at risk and causing reputational damage to the employer and a reasonably held loss of trust and confidence in his ability to perform his duties with due care”.

However, the Deputy President noted, “In this matter, seriousness was at the lower end of the scale”, particularly considering the low speed of the vehicle and the lack of damage or injury to the clients”. While acknowledging BF had been careless, he noted, “Distraction on a road is never trivial. However, on the scale of seriousness, the risk presented in this matter was minor”. He also challenged the likelihood of the incident causing reputational damage.

The Deputy President did believe that, in hindsight, BF should have reported the incident with the bin but mentioned that Orana did not report the incident themselves to NDIS.

Ultimately, Deputy President Lake concluded,

“I have found a single incident of error on Mr (F’s) part but not one that constituted a valid reason for dismissal, and one that, even if it did, would have rendered the dismissal harsh”.

With regard to a remedy, the Deputy President has recommended reinstatement; however, Orana has indicated they do not believe that can be accommodated as his position has been filled. The parties have been requested to provide further submissions to finalise the matter.

BF v Orana Australia Ltd (U2023/4889) 28 August 2023

For queries about dealing with allegations of misconduct, appropriate penalties, 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.

Ref: 382.0923

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