Lost your licence? Lose your job

If an employee loses his driver licence where driving is a part of his work, he can be fairly dismissed for misconduct. This much is demonstrated by the decision in Zeiter v Melway Bin Hire and Demolition Pty Ltd [2016] FWC 2823.

Mr Zeiter was stopped by police for using a mobile phone while driving. During the stop the police notified Mr Zeiter that his licence had been suspended for a period of three months.

When Mr Zeiter told his employer about the difficulties with his driver licence the employer effectively terminated him but did not tell him for nearly a month afterwards.

At the hearing of the application the employer argued that Mr Zeiter’s failure to maintain a driver licence was a frustration of the employment contract so that there was no dismissal, as opposed to a breach of the employment contract for which there could be a dismissal.

Commissioner Ryan thought the better analysis was that of breach of contract.

He found that the employer had not acted in a procedurally fair way towards Mr Zeiter but that the shortcomings were not sufficient to find that the dismissal had been harsh or unjust or unreasonable.

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When does a workplace entitlement becomes a contractual right?

 

An employer who failed to follow its own workplace policies has been successfully sued for breach of contract in the Full Court of the Federal Court.

 

The applicant in this case was a second officer on a supply ship and employed by the respondent, Farstadt Shipping (Indian Pacific) Pty Ltd. 

 

Like most employers, the respondent had a Workplace Harassment and Discrimination Policy in place which set out the procedure for dealing with complaints. When the applicant made a complaint of sexual discrimination, these procedures were not followed.

 

The Court had to determine whether the workplace policy formed part of the applicant’s employment contract for the purposes of establishing whether there had been a breach of contract.

 

It was found that the policy did form part of the employment contract, binding the employer to its obligations to investigate complaints in accordance with its established procedures.

 

It was successfully argued that the employer failed to follow its own policies and in failing to comply with them, breached its own employment contract.

 

The employer was found to have breached the contract and ordered to pay the applicant’s costs.

 

While it is important to ensure your business has policies in place on issues such as bullying and harassment or drugs and alcohol, employers should ensure these policies do not form part of their employment contracts, lest they become a binding upon you.

 

To have your contracts reviewed, ensure their compliance with the legislation and minimise risk to you as an employer, contact Nevett Ford on (03) 9614 7111.

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Workplace Policies Traps for Employers

An employer who did not follow its own workplace policies has been successfully sued for breach of contract in the Full Court of the Federal Court.

The worker was a second officer on a supply ship and employed by Farstadt Shipping (Indian Pacific) Pty Ltd. 

Like most employers, the company had a Workplace Harassment and Discrimination Policy in place which set out the procedure for dealing with complaints. When the worker made a complaint of sexual discrimination, the procedures were not followed.

The Court had to determine whether the workplace policy formed part of the employment contract for the purposes of deciding whether there had been a breach of contract.

It was found that the policy did form part of the employment contract, binding the employer to its obligations to investigate complaints in accordance with its established procedures.

It was successfully argued that the employer failed to follow its own policies and, in failing to comply with them, breached its employment contract.

The Court found the employer had breached the worker’s contract of employment and ordered the employer to pay the worker’s costs.

While it is important to ensure your business has policies in place on issues such as bullying and harassment or drugs and alcohol, employers should ensure these policies do not form part of their employment contracts, lest they become a binding upon you.

To have your contracts reviewed, ensure their compliance with the legislation and minimise risk to you as an employer, contact Nevett Ford Melbourne on (03) 9614 7111 and ask to speak to a member of our workplace relations team.

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