Dismissal for falsifying fatigue management records was fair

22 February 2011 Topics: Transport and logistics, Workplace relations and safety

Fair Work Australia dismissed a truck driver’s unfair dismissal claim after finding that termination of his employment for falsifying his fatigue management records was not unfair.

The employee had worked for Linfox as a truck driver for 10 years. In July 2010 the employee continued to drive after he had reached the maximum number of hours permitted under his fatigue management scheme. In a further breach of the fatigue management scheme the employee immediately began unloading his vehicle. He attempted to conceal the breach by making false time entries in his daily worksheet.

In a meeting requested by Linfox the employee admitted that he had deliberately made false entries on his worksheet. The employee was stood down and another meeting was held on 7 July 2010. At the 7 July meeting his employment was terminated with immediate effect.

On behalf of the employee the Transport Workers Union argued that the dismissal was unfair because:

  • the conduct was caused by a momentary lapse of judgment;
  • the employee gained no financial benefit from falsifying the worksheet; and
  • the employee had a long history of employment and a relatively clean record.

Fair Work Australia considered that:

  • the employee was aware of the importance of accurately recording information for driver fatigue management and that he had deliberately falsified his worksheet in an attempt to conceal his breach;
  • a deliberate falsification of records in the absence of an acceptable excuse justifies summary dismissal;
  • a breach of fatigue management legislation may have harsh consequences for public safety and the employer.

Fair Work Australia was critical of Linfox for preparing the termination letter before the 7 July meeting as this did not allow the employee an opportunity to justify his misconduct. However, Fair Work Australia found that this procedural error did not cause any injustice to the employee, as no subsequent justification for the falsification was found.

While the employee’s application was dismissed, Fair Work Australia placed considerable weight on the fact that he attempted to conceal his breach and then later admitted that it was a deliberate act. This decision may have been different if the employee had not deliberately attempted to cover up his breach.

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