AREEA consultant Karen Nelson reviews a recent Fair Work Commission decision which considered the validity of the termination of a driver who crashed a dump truck and then left the crash site unattended to heat up his lunch before reporting the incident.
AN underground truck driver working for MMG Australia Ltd (MMG) has unsuccessfully argued that his dismissal was unfair, with the Fair Work Commission (FWC) upholding the employer’s decision to terminate the driver after he crashed his truck and then left the scene of the incident to heat up his lunch before contacting his supervisor to report the matter.
Background
The driver was working on nightshift at Tasmania’s Rosebery underground mine when he set out to move his truck towards a parking bay near the crib room to take a break. While entering one of the designated parking bays the driver did not initially see a piece of equipment obscuring his path, and was not able to stop the truck in time to avoid a crash, causing around $15,000 damage to the equipment. Following the crash the driver walked to the crib room and began to heat up his lunch before contacting the shift supervisor on the crib room radio to report the incident.
The employer suspended the driver pending the outcome of their investigation, finding that the driver’s behaviour was in breach of several operating procedures, including failure to look into the parking area before driving the truck in, failure to preserve the scene and failure to immediately notify a supervisor. MMG also took into consideration the seven previous warnings on the driver’s file before his employment was subsequently terminated.
The driver argued to the FWC that it was unfair for MMG to take into account his previous warnings as those matters were unrelated. The FWC found that the matters were relevant to the termination as the numerous previous disciplinary records on file related to safety and/or procedure breaches. The FWC found that these previous disciplinary records illustrated the driver’s attitude towards safety and following procedures. The FWC subsequently found that the conduct of the driver amounted to a valid reason for dismissal, and upheld the termination.
Implications for employers
This decision illustrates the importance of a robust performance management and disciplinary process in defending an unfair dismissal claim. The steps taken by MMG following the incident in conducting a thorough investigation and carefully considering all relevant factors prior to making a decision to terminate assisted in the successful defence of the claim.
This decision also highlights the willingness of the FWC to consider previous instances of relevant disciplinary action in determining whether a dismissal is justified, when such performance management and disciplinary action is clearly documented.
Click here to view the decision.
AREEA’s experienced workplace relations consultants can assist with developing a robust performance management and disciplinary procedure, to help mitigate the adverse impacts of an unfair dismissal claim on your business. To learn more, contact an AREEA consultant near you.
