THE Fair Work Commission has ruled against reinstating a former employee of a multinational services group after he allegedly used a mobile phone and exceeded speed limits whilst driving a company vehicle.
A former driver for oil field services organisation Halliburton filed an unfair dismissal claim seeking reinstatement after his employment contract was terminated following an incident whereby two employees observed him driving while on a mobile phone.
During the incident, the facts state the former employee drove into a yard at a speed above the 5km/h limit and nearly caused a collision with another vehicle. Already subject to a first and final warning for previously talking on a mobile phone while driving, the worker was dismissed.
On hearing the evidence, Commissioner Susan Booth of the FWC found the evidence regarding the mobile phone use to be inconclusive, but ruled the employee’s dismissal was valid.
“[Either] speeding or phone use alone would be conduct that might subject [the employee] to disciplinary proceedings. There is insufficient evidence to conclude he was on the phone while driving. However, I am of the view [the employee’s] driving on that day, while subject to a final warning for his earlier driving-related misconduct, was a valid reason to dismiss him,” Commissioner Booth said.
“[The employee] did not present as a reliable and cooperative witness, consistent with the observations of his superiors. He appeared to lack insight into his own conduct, the impact it may have on others, and his responsibilities as an employee. His evidence that he did not know Halliburton’s policies is demonstrative of a rather offhand attitude to the matter of safety of himself and others.”
However, the Commissioner also found that Halliburton had erred in its disciplinary procedure by notifying the employee of his disciplinary hearing the day before it was to occur. On these grounds, Commissioner Booth found that Halliburton had failed to provide enough notice to respond.
“A process that affords an employee a disciplinary hearing, with proper notice and opportunity to be heard and supported, followed by a show-cause process as to penalty, again with proper notice and opportunity to be heard and represented, may more clearly demonstrate procedural fairness, including the factors of notice and opportunity to respond, than the procedure adopted in this case by Halliburton,” she said.
“[The employee] was not given adequate notice and did not have an adequate opportunity to respond to his possible dismissal until after the decision had already been taken.”
Finding that reinstatement would be inappropriate due to the employer’s loss of trust and confidence in the worker, Commissioner Booth ordered compensation paid to the employee.
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Implications for Employers
This case demonstrates the importance of implementing disciplinary procedures that adhere to the requirements of the Fair Work Act 2009.
Summarily, while an ‘investigation does not need to be without flaw and does not need to be forensic in detail’, employees must be given adequate notice of a disciplinary hearing in order to ensure their entitlement to respond can be met.
Given the delicate nature of disciplinary measures, and the possible dismissal action that sometimes follows, AMMA members are encouraged to contact one of our workplace relations experts for advice, guidance and information.
Our consultants can provide assistance in developing a disciplinary procedure that protects your organisation from potential unfair dismissal claims, and ensures your workforce culture remains positive.
For more information, contact your local AMMA office.