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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Reinstatement is the primary remedy

Under the Fair Work Act 2009 the primary remedy for an unfair dismissal is reinstatement of the employee to employment.

Yet even where reinstatement is sought, the Fair Work Commission does not often order it.

One reason seems to be that employers consistently argue that reinstatement is simply not viable because the trust and confidence necessary for a continuing employment relationship has been broken.

The decision in Singh v Metro Trains Melbourne Pty Ltd [2016] FWC 2291 demonstrates the circumstances in which the Commission will order reinstatement.

Ms Singh was a station assistant who was dismissed for the alleged theft of lost property.

The Commission found Metro’s investigation flawed and that short of stealing the lost property Ms Singh had dealt with it in breach Metro’s lost property policy.

Ms Singh had an impeccable work record over 10 years of service and maintained her right to be reinstated as the proper remedy for her dismissal.

Although she had applied for other jobs after she was dismissed she had not been successful in obtaining any.

What influenced the Commission in ordering reinstatement were two factors:

1. Distrust of an employee by the employer cannot of itself be a sufficient reason to decline reinstatement, otherwise no employee would ever be reinstated where the employer believed or suspected the employee had engaged in misconduct.
   
2. Metro was a large employer and there were many roles within it that Ms Singh could perform at different locations so that the element of trust and confidence was of diminished importance.

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Notice would have made dismissal valid

Moskou v Specialist Diagnostic Services Pty Ltd [2015] FWC 8608 is an example of where summary dismissal for what occurred was deemed harsh but dismissal with notice would have been deemed fair.  A courier driver, who was suffering from gastroenteritis, defecated in a client’s carpark and failed to clean up properly or report the incident to his manager.  Commissioner Cribb decided the actions constituted misconduct but not serious misconduct warranting summary dismissal and ordered compensation of one week’s pay in lieu of notice

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Don’t take it so seriously – the difference between misconduct and serious misconduct

A pool supplies business in Sydney summarily dismissed its general manager for going “behind their back”, making disparaging comments about the business and “betraying the business”. Entram Pty Ltd accused its general manager of preventing a sale of business and breaching his implied duties to act in good faith.

Judge Shenagh Barnes of the Federal Circuit Court accepted the employee’s conduct amounted to misconduct; however, it was not found to warrant serious misconduct and, therefore, summary dismissal.

As a consequence, the employer was ordered to pay $30,283 in damages for failing to provide the employee with notice of termination.

For an employer, the key difference between terminating an employee for misconduct versus serious misconduct will be the provision of notice.

An employee who commits serious misconduct can be terminated on the spot and the employer will not be required to provide notice of termination.

An employee who is dismissed for misconduct must be provided notice of termination. They can be directed to work out their notice period or paid in lieu of notice, at the employer discretion.

As demonstrated by Jeavons v Entram Pty Ltd [2015] FCCA 3457 the consequences of summarily dismissing an employee for misconduct can be significant. Although the employee was terminated in June 2012, a judgment was not handed down until December 2015, meaning the business was in legal limbo for three and a half years. 

To protect your business and insure yourself against such penalties, speak to one of Nevett Ford’s workplace relations team members on (03) 9614 7111 about the right way to terminate an employee for misconduct and serious conduct.

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