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.
