The recent Fair Work Commission decision of Patrick O’Sullivan v Qube Logistics (SL) Pty Ltd T/A Qube Logistics [2016] FWC 5581 (Qube Logistics) examined the time-old question of what is deemed to be a valid reason for terminating an employee in the context of various alleged safety breaches.

Background

In this case, Mr O’Sullivan brought on an unfair dismissal application against his former employer after his termination in January 2016 as a Professional Operator (truck driver).  Mr O’Sullivan’s role involved delivering shipping containers and bulk products from Qube Logistics’ facility to various sites.  As outlined in the termination letter, Mr O’Sullivan was dismissed for “serious and ongoing [safety] breaches” of his role deemed as misconduct, despite being provided with ample notice to improve by means of formal meetings and written warnings.  These disciplinary issues arose from seven safety related incidents as follows:

  • In late 2013, Mr O’Sullivan drove one of Qube Logistics’ vehicles into a level crossing with warnings lights or bells.  While Qube Logistics received a Traffic Expiation Notice in relation to this, no formal warning was given as a result of this incident;
  • In March 2014, Mr O’Sullivan was observed driving in an unsafe manner, which caused an incident with a passenger vehicle.  The other vehicle was forced to take evasive action to avoid a collision.  Mr O’Sullivan was later stood down pending an investigation into the incident, which resulted in being issued with a written warning.  This detailed the company’s Code of Conduct, the manners in which Mr O’Sullivan breached it, and forewarning of further disciplinary action (including termination) pursuant to any future breaches;
  • In June 2015, Mr O’Sullivan was directly responsible for the spillage of one tonne of product onto the ground at a customer’s site using one of Qube Logistics’ vehicles.  This came as a result of Mr O’Sullivan leaving the system unattended while at a bathroom break and failing to secure all fittings.  Mr O’Sullivan was issued with a final written warning following this incident, which outlined the relevant company Procedures and Code of Conduct that were breached.  Mr O’Sullivan was warned of further disciplinary action being undertaken, including a review of his ongoing employment;
  • In August 2015, Mr O’Sullivan was stood down for failing to provide his employer evidence that he held a current valid driver’s licence.  This was despite being instructed the day prior to produce evidence of his licence renewal.  No other disciplinary action was taken;
  • In October 2015, Mr O’Sullivan was detected speeding in one of Qube Logistics’ vehicles.  Apart from signing a Manual Compliance Non Conformance Report, no other disciplinary action ensued;
  • In December 2015, Mr O’Sullivan was again detected speeding in his employer’s vehicle, for which they received an Infringement Notice.  A disciplinary meeting was held shortly after the incident, and then suspended to allow for Mr O’Sullivan to respond;
  • In January 2016, Qube Logistics received notice of a complaint from a member of the public relating to two separate incidents on the same day.  These involved speeding, dangerous driving and tailgating.  Mr O’Sullivan was found to be in control of one of Qube Logistics’ vehicles operating in the area at the time of the first incident, and most likely in control of the vehicle involved in the second incident.  Qube Logistics issued a show cause letter, to which Mr O’Sullivan responded in writing and during a meeting with a support person.

Mr O’Sullivan was then summarily dismissed in late January 2016 due to the ongoing failure to perform duties safely, professionally and in line with Qube Logistics’ standards and procedures.

Decision

The only relevant consideration for the Commission to make in respect of section 385 of the Fair Work Act 2009 (Cth) (the Act) in this case was whether the dismissal was harsh, unjust or unreasonable.  In the usual way, the Commission looked at each criteria for considering harshness as per section 387 of the Act.

The Commission first looked at whether the reason to terminate Mr O’Sullivan was deemed valid. Deputy President Kovacic relied on the Full Bench decision of the then Australian Industrial Relations Commission (AIRC), King v Freshmore (Vic) Pty Ltd (King). This decision canvassed the issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to an employee’s conduct.  Consistent with the decision in King, the Commission explained that there were two threshold issues. Namely:

  1. whether the alleged conduct took place; and
  2. if so, whether it constituted a valid reason.

Based on both parties’ submissions, and verbal evidence provided by various employees of Qube Logistics, the Commission was satisfied the above series of events did occur, and was relied upon by the company in deciding to terminate Mr O’Sullivan.

The Commission then turned towards whether there was a valid reason for Mr O’Sullivan’s dismissal.  In determining this, the AIRC decision in Rode v Burwood Mitsubishi (Rode) was consideredThis held that a valid reason is one which is:

“sound, defensible or well founded… the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts.  It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

In analysing the language of Rode in parallel with the above evidence, particularly with respect to Qube Logistics’ Operating Procedures, it’s Human Resources Handbook and the warnings issued to Mr O’Sullivan, the Commission was satisfied that the reason for Mr O’Sullivan’s dismissal was valid.  The Commission also concluded that Mr O’Sullivan was clearly notified of the reason for his dismissal, being provided with ample time and opportunity to respond to the various safety concerns.

Considering all this, the Commission held that Mr O’Sullivan’s dismissal was not harsh, unjust or unreasonable.  While Mr O’Sullivan’s period of service was not a relevant factor in determining whether his dismissal was unfair, he was employed since at least late 2012.

Lessons for employers

This decision highlights several key take-away lessons for employers.  These include:

  1. ensuring all allegations of breaches of a company’s safety policies or procedures are notified to the employee in detail, providing the opportunity to respond before disciplinary action is carried out with relevant support if need be; and
  2. ensuring that the reason for an employee’s dismissal is clearly outlined in any termination meeting or termination letter.

Author: Stamatina Theodorakopoulos

Contacts:

Melbourne

Charles Power, Partner
T: +61 3 9321 9942
E: charles.power@holdingredlich.com

Sydney

Stephen Trew, Managing Partner, Sydney
T: +61 2 8083 0439
E: stephen.trew@holdingredlich.com

Michael Selinger, Partner
T: +61 2 8083 0430
E: michael.selinger@holdingredlich.com

Brisbane

Rachel Drew, Partner
T: +61 7 3135 0617
Erachel.drew@holdingredlich.com

Justine Ansell, Special Counsel, Brisbane
T: +61 7 3135 0507
E: justine.ansell@holdingredlich.com

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