The Facts

The employee worked as a Line Haul Driver for the family owned freight transportation company (the “Company”) for four years. The Company installed GPS and an engine control module monitoring system into each of their vehicles in order to track speed and location. On 9 October 2019, the National Manager was alerted that a speed of 116km/hr had been detected in the employee’s vehicle. In response, the National Manager contacted the employee to notify him he would be “immediately suspended” pending an investigation. Over the next two weeks, the Company undertook a robust investigation which included speaking to the employee and requesting an explanation at to why he was travelling at the high speed for about one minute. The employee denied travelling at the speed but explained: he was driving an unfamiliar truck; there were problems with the tracking system; he was unable to read the speedometer; and the brakes did not work fast enough. The Company also reviewed the tracking data for any deficiencies.

On the evening of 15 October 2019, the employee was dismissed via telephone. A letter confirming the employee’s dismissal was provided, referring to two previous speeding incidents which had been addressed with formal written warnings. The employee lodged an unfair dismissal claim in response.

Decision

The Commission was satisfied the employee’s behaviour “represented a critical infringement and gross breach of safety”. In doing so, the Commission rejected the employee’s mitigation that he was driving an unfamiliar truck and was unable to see the speedometer, describing the submissions as “spurious and unlikely”. The Commission also commended the Company for acting “prudently and properly” when undertaking the investigation. However, considered the Company’s procedure became undone when they dismissed the employee via telephone. The Commission found this was “unnecessarily callous” and failed to adhere to basic human dignity. The Commission noted that communication via telephone denies the employee an opportunity to plead or otherwise show reason as to why the dismissal should be reconsidered. The dismissal was ruled as harsh due to this procedural failing. When considering the remedy, the Commission found reinstatement, as well as monetary compensation, was inappropriate because of the severity of the employee’s misconduct.

Lessons for Businesses

This case highlights the importance of a fair procedure for notifying an employee of a dismissal. The Commission stated, “unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face”. The COVID-19 pandemic is a situation which may genuinely preclude an employer from conducting face-to-face meetings as safety and government regulations should be prioritised over procedure. When undertaking performance management however, employers are still advised to uphold the underlying principles of procedural fairness. This includes giving the employee a reasonable opportunity to respond to allegations against them and before disciplinary action is taken.

How we can assist

This case highlights the importance of knowing your legal obligations in relation to the termination process. The Victorian Chamber of Commerce and Industry Workplace Relations Advice Line will be able to assist any business with the termination process by providing accurate advice, information and consultation so that these cases can be avoided in the future. Victorian Chamber Members have access to the Workplace Relations Advice Line. For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.

Written by Nicholas Panagopoulos Graduate Workplace Relations Advisor

[2020] FWC 1257