By Mike Toten Freelance Writer

The valid reason was that the employee returned to work when he was knowingly unfit to do so and unfit to use a company vehicle. That was a breach of workplace health and safety legislation. However, the employer dismissed him because of several instances of misconduct.

FACTS OF CASE

The employee’s own evidence proved that he was not fit to return to work, however he chose to do so. The employer had dismissed him for serious misconduct. The alleged misconduct included:

  • using a work vehicle in ways he did not have permission to, and returning it in poor condition
  • hiding a work tool in the vehicle that he was asked to return
  • sending an abusive text message to his supervisor after he denied him a pay rise
  • lengthy absences from work that were unscheduled and unexplained
  • general concerns re his "presentation and actions"

One absence from work was for a full week, during which vehicle tracking showed that the employee had driven a work vehicle almost 600 kilometres, often being traced to pubs.  Earlier that month, the employee had returned to work for four days after having been absent due to “mental health issues”. He claimed that he was not fit to return, but had been forced to because the employer needed to use his work vehicle elsewhere.

The employee lodged a claim of unfair dismissal, alleging that his conduct was caused by his mental health issues.

Workplace health and safety legislation imposes a duty on employees to take reasonable care that their actions at work do not risk the health and safety of others. The Fair Work Commission (FWC) found that he breached that duty because, on his own admission, he was unfit for work – including being unfit to drive. This amounted to a valid reason for dismissal. He had chosen to go to work in order to avoid losing possession of the vehicle.

The employer had erred by not providing the real reason for dismissal in its notification, but the gravity of his misconduct overrode that omission. The risk he posed to others by returning to work was a stronger justification for dismissal than the absences and other misconduct that the employer relied on. The FWC said that the reasons for dismissal given by the employer did not amount to a valid reason to dismiss him, and there were also procedural deficiencies in the way the employer handled the dismissal. However, the breach of safety provisions overrode that and provided a valid reason.

The employer offered fears of risk to the safety of other employees as a reason for not following correct procedures (eg giving the employee an opportunity to respond to the reasons for proposed dismissal). The FWC found that the employer’s concerns were genuine, but could have been offset by using written communication.

The employee also sent a very offensive text message to the owner of the business threatening physical violence against her after he was dismissed. However, as this occurred after dismissal, it was not a reason for dismissal.

 

DECISION

The FWC rejected the claim of unfair dismissal.

 

WHAT THIS MEANS FOR EMPLOYERS

This case is an example where having a valid reason for dismissal took precedence over following the correct procedures for dismissal. It is unusual because the “valid reason” identified by the FWC differed from the reasons used by the employer.

The latter is not recommended practice, however. In cases where the “valid reason” was not as strong as this one, the FWC has found that dismissed employees were entitled to compensation for the unfair manner of their dismissal, even though dismissal was justified.

 

READ THE JUDGMENT

Doherty v Defend Fire Services Pty Ltd T/A Defend Fire [2024] FWC 1444 (3 June 2024)