23 February 2017

In Millard v K & S Freighters Pty Ltd [2017] FWC 105, the Fair Work Commission found that an employer’s decision to dismiss an employee on the basis of circumstantial evidence was harsh and unreasonable.

A driver was dismissed by his employer for serious misconduct for tampering with an internal driver-facing camera by spraying a substance on the lens of the camera in his vehicle.

The employer ‘show caused’ the driver by showing him the tampered camera and telling him the obscuring substance was believed to be deodorant. The employer also noted that the driver had previously raised privacy concerns when the camera was first installed in the vehicle.

In turn, the driver:

(a) denied any involvement and pointed out that, on the day in question, the vehicle was left unattended and he remained out of the cabin for substantial periods of time;

(b) said he did not bring deodorant to work; and

(c) claimed it was ‘common knowledge’ amongst the drivers that the placement of the camera on the windscreen meant that it could be covered by simply opening the vehicle’s sun visor and that if he wanted to cover the lens he could have done so in this way.

After a further meeting (during which he continued to maintain his innocence), the driver was dismissed on the grounds of serious misconduct.

The driver made an application in the Commission alleging his dismissal was harsh, unjust or unreasonable. The employer argued that the driver-facing cameras were a necessary safety feature to ensure compliance with appropriate health and safety standards and the safe transportation of clients’ products. The employer submitted that its decision to dismiss the driver was due to:

(a) the employer being satisfied that the driver had deliberately defaced the camera;

(b) the driver’s previous conduct concerning repeated disregard for health and safety requirements; and

(c) the driver’s assertion that someone else may have tampered with the camera being ‘implausible’ as he would have known if something had been sprayed in the confined space of the cabin.

The Commission held that the decision to dismiss the driver on grounds of serious misconduct was based on circumstantial evidence and that much more could have been done by the employer to validate or confirm the evidence that formed the basis of the decision to dismiss the driver.  Relevantly, the Commission said that no analysis was made of the substance on the camera, no-one in the workshop was asked how the camera lens was cleaned after the incident or how difficult this was, and at the time the allegation was first raised with the driver, the supervisor refused the driver’s offer to search his bag for evidence of deodorant.

The Commission was not satisfied that on an objective analysis of the facts, it could be concluded that the driver was responsible for tampering with the camera. Further, the fact that the camera was undamaged and able to continue functioning in a proper manner meant it was difficult to justify dismissal for serious misconduct.

The Commission held that the driver’s dismissal was ‘at least harsh and unreasonable’ and ordered the employer to pay $46,151 as compensation to the employee.

Lessons for transport operators

(a) While ‘safety breaches’ may form a valid reason for dismissal, a proper and objective investigation of the incident should be undertaken.

(b) Circumstantial evidence (without any further inquiries or investigations being undertaken) is unlikely to be sufficient to justify dismissal.

(c) Safety breaches by drivers may not always be sufficient to justify termination for ‘serious misconduct’.

The full decision can be accessed here.

 

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