Dismissal Undone by Lack of Process
A former tip-truck driver has received more than $10,000 compensation he was found to have been unfairly dismissed. The compensation and unfair dismissal finding were awarded despite the Fair Work Commission having recognised that the employer did have legitimate grounds for terminating his employment.
The employee, Mr. Pericich, had been employed as a tip-truck driver by Hanson Construction Materials for a period of four and a half years. His employment with the company was terminated in November 2017 after he had been involved in a serious near-miss in which he had failed to stop at a red light.
After having become aware of the near miss, the employer issued Mr. Pericich with a letter advising that they were terminating his employment on the basis that he had engaged in unsafe behaviour and had therefore breached company policies.
The letter provided to the employee reinforced that the employer’s motor vehicle policy required that company vehicles must always be driven in a safe manner and all traffic laws must be complied with in full. The aim of the policy was to support the employers risk management strategy which operated to eliminate workplace risks or unsafe behaviour. The letter further provided that it served as a Termination Letter to the employee “for unsafe driving, effective immediately”. Mr. Pericich was subsequently paid one week’s pay in lieu of notice.
The incident in questions occurred on the morning of 9 November 2017. Mr. Pericich was involved in a serious near-miss incident in which he had failed to stop the truck and trailer he was driving at red lights on a railway crossing when a passenger train had been approaching.
While the employee did admit to the incident and agreed that it could be described as a serious misjudgment”, he disputed that the incident amounted to a “serious near-miss”. Rather, Mr. Pericich claimed that the truck and trailer were being operated safely and that no damage was sustained to the vehicle, himself or to any public infrastructure.
Mr. Pericich further argued that he had not been afforded procedural fairness, and that he had not been afforded an opportunity to respond to the allegations prior to his employer having made the decision to terminate his employment.
The Fair Work Commission accepted that the incident did in fact constitute a valid reason for dismissal but upheld that the employee’s dismissal was in fact unfair due to the employee not having been afforded procedural fairness. In particular, the Commission identified that:
- The allegations had not been clearly addressed with the employee prior to his termination.
- The employee had not been given a proper opportunity to respond with a witness present, prior to the termination.
- The employee had not been given an opportunity to view dash cam footage of the incident obtained from his truck prior to the dismissal.
- The employee had been denied natural justice.
The Commission found that Hanson Construction Materials were a large employer and that they had the ability to seek expert advice to ensure that due process was followed prior to terminating Mr. Pericich’s employment.
In determining the amount of compensation to be paid, the Commission took into consideration both the impact that the termination had on Mr. Pericich and his family, and the fact that job opportunities in his regional location were limited. The employee’s own conduct in relation to the incident which had resulted in his termination was acknowledged and a 30 per cent deduction to the amount of compensation (amounting to approximately $4,600) was made as a result. Despite this deduction, the employee was awarded compensation of $10,951.87.
This case is just another in a long list of cases, including F v Bunnings Group Ltd, t/a Bunnings , in which employers have found themselves in the costly position of being found to have unfairly dismissed an employee despite having a valid reason for the termination.
In each case, the terminations have been found to be unfair on the basis that the employee was not provided with procedural fairness and that due process was not followed.
Cases such as this one, continue to highlight that procedural fairness or due process, is considered to be just as important as having a valid reason for termination.
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