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Employment Law Background

The Fair Work Commission’s decision in DL v East Arnhem Regional Council [2017] highlights the importance of employers affording procedural fairness to employees in dismissal cases. Article Link: http://Article Link: https://workplaceinfo.com.au/termination/unfair-dismissal/cases/supervisor-unfairly-dismissed-while-on-final-warning-and-after-falsifying-accident-report#.WPVvOfmGNaQ

Facts

DL was a Municipal Services Supervisor for a Council. In this role, he was responsible for supervising two or three staff. At least two workers had lost their driving license

• In June 2016, one of the workers was driving a Council rubbish truck, when an incident caused the bumper of truck to be bent
• In August 2016, DL stated in an Accident & Incident Report that he was driving the truck. The form stated that by signing the form, the signatory was accepting that the information in the form was “true and correct”. DL signed this form
• A few weeks later, in September 2016, the Council alleged that DL stated in a tele-conference that “recently we had an incident where [we] knew that we had no licensed drivers but decided anyway to use the staff to operate the vehicle. The driver bent the bumper then I had to jump in and take the blame”

• In late August 2016, after DL had signed the form but before he admitted to not being the driver, DL had received a first and final warning in regard to alleged unsatisfactory performance, a lack of care in vehicle cleanliness, paperwork and maintenance
• DL was dismissed on the basis that he breached the Council’s code of conduct by falsifying a critical incident report, failing to comply with policies and procedures, not being truthful, not acting with integrity and not conducting himself in a proper manner

Decision

The Fair Work Commission found:

• DL was unfairly dismissed on the basis that there was a failure to provide procedural fairness.
• The Council had a valid reason for dismissal, as allowing unlicensed drivers to drive Council vehicles is a “serious matter” and could have had “severe” consequences for the Council if there had been a reportable accident.
• However, the dismissal was unfair as the company denied DL procedural fairness by not providing him with the reason for the dismissal, or giving him the opportunity to respond to a potential dismissal before the decision was made.
• DL’s bid for reinstatement was rejected. The Commission accepted the employer’s argument that there was an “irreparable breakdown of the employee/employer relationship”. The Commission agreed that reinstatement was not reasonable as DL did not display “the requisite level of professional conduct in managing staff”
• Compensation was ordered in lieu of reinstatement. Submissions were sought from the parties as to the amount of compensation to be paid.

Tips for Employers

• review this Fair Work Commission decision
• seek advice on what procedural fairness should be applied in any matters in the work place where disciplinary action is necessary.
• ensure where dismissal is being considered that it is for a valid reason
• ensure compliance with employment contracts and employment law policies
• fairly consistently and lawfully respond to breaches of employment contracts and employment law policies
• damages can apply for breaches of employment contracts and some employment law policies (which an employment lawyer can advise on)
More Information

Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions team on 9635-7966 to speak with one of our employment lawyers.