Delivery driver's successful unfair dismissal claim despite misconduct
02 September 2014
In David Cowan v Sargeant Transport Pty Ltd (U2014/5703), a delivery driver made an unfair dismissal claim when his employment was terminated for misconduct. The incident was captured on CCTV when the employee was making a delivery. The employee arrived at the client's gate, pressed the intercom button and then moved to the far side of the truck, placed some paperwork from his hand into his mouth and, with his back to a CCTV camera, urinated. He then returned to the intercom, pressed the intercom button again, had a discussion over the intercom, returned to his truck and drove into the client's compound.
A week later, the client's manager advised the employer of what was captured on CCTV and that the employee would be suspended for a period of 3 months from all their sites (in accordance with their policy). The manager requested that the employee be advised of the ban and that the employer advise of what action it would take against the employee.
In the following days, the employer's HR Manager had telephone discussions with the employee and informed the employee that there was CCTV footage of the incident. Several days later, the employer's representative viewed the CCTV footage and agreed that the employee should be dismissed. The employee was advised by telephone later that day that his employment had been terminated and he received a letter confirming the employer's decision.
The Fair Work Commission was satisfied that there was a valid reason for the dismissal, but determined that the employer made some fundamental errors in the way it conducted the investigation and the way in which it reached its decision to terminate the employee's employment.
The decision to dismiss the employee was considered harsh:
- given the time limited ban from the client's sites and the capacity, on the evidence, to place the employee in work not requiring regular delivers to the client's sites for the period of the ban; and
- because of the personal effects of that decision. The allegation was not put to the employee in writing, and the extent of the evidence was not explained. Further, some relevant information, such as the length of the ban, was not given.
The decision to dismiss the employee was also considered unreasonable in circumstances where there was a lack of procedural fairness.
Having considered the employee's conduct and subsequent employment, the Fair Work Commission awarded the employee an amount of compensation equivalent to $16,128 less the net amount of payment received in lieu of notice.
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