An emergency responder at a mine has lost his unfair dismissal claim after he was sacked for driving across the site at nearly twice the company’s speed limit. 

The worker was employed as an emergency response team leader by a business providing industrial medical and emergency response fire and rescue services to a coal mining company that operates five mines in Queensland.

On 24 April 2024, while responding to an emergency call to attend a fire, the worker drove along a haul road at the site of the mine at high speed – initially he was driving at 113km per hour in a 60km limited area. 

After he was advised on the radio that there was no threat to life and the fire had been extinguished, he dropped his speed to about 90 km per hour for the rest of the trip, though he was still in a 60km limited zone.

His breach of the company’s safe driving policy prompted the company operating the mine to withdraw the worker’s access to the site. His employer tried to change that decision, but without success. They then offered him a different role – as a security guard for another client – but he declined. 

His employment was then terminated on the grounds that he couldn’t do the job if he had no access to the site, and his speeding amounted to serious misconduct.

The worker denied that his actions constituted misconduct, and claimed the company’s policy around driving to emergencies was unclear. 

He applied for relief from unfair dismissal, seeking either reinstatement or compensation, and the case was heard in the Fair Work Commission.

 

In the Commission

The Commission’s task was to consider the merits of the application and decide whether the dismissal was harsh, unjust or unreasonable.

The employer submitted there was a valid reason for dismissal, as its client, the mining company, had revoked the worker’s site access, so he could not fulfil the inherent requirements of the job, and when offered a different position, he’d declined. 

Alternatively, the employer argued that there was a valid reason for dismissal because he engaged in serious misconduct when he drove at great speed on the mine site, which was inherently unsafe and was a serious breach of policy/procedure.

The worker attempted to justify his speeding on the grounds of getting to the fire sooner, but Deputy President Theresa Dobson heard evidence that at the time he was speeding across the site, he had a passenger in the vehicle who was getting dressed, he didn’t know if she was wearing a seat belt, he had one hand on a handheld radio and one on the steering wheel, was untrained for driving in emergency conditions, and he was unclear about conditions on a site that evening.

In addition, there had been a recent fatality on that site due to a vehicle driving over the site speed limit.

When the worker was asked why he did not drop to the 60 km speed limit after hearing that the fire was extinguished, he said that he was concerned about a ‘risk of reignition’.

Deputy President Dobson did not accept that a possibility of reignition amounted to an emergency situation, or that an emergency would justify his speeding.

She accepted the evidence of the company’s site superintendent that there was ‘no grey area in breaching speed limits even in circumstances of emergencies’.

She found that it should have been clear to the worker that to do so was not only unacceptable, it was very dangerous in the circumstances, and unacceptable for someone in his position.

The worker argued that even if there was a valid reason for his termination, it was still unfair, as the decision was harsh, unjust and unreasonable. 

The worker referred to an earlier decision in which a labour hire worker in the mining industry was reinstated, but Deputy President Dobson took the view that the present case was materially distinguishable in that the employer made attempts to have the worker’s site access reinstated. Moreover, she found that the worker’s dangerous driving amounted to serious misconduct that warranted dismissal in and of itself.

Taking account of the criteria set out in s.387 of the Fair Work Act 2009, the Deputy President was satisfied that the worker was notified of the allegations against him when he was stood down, he was given an opportunity to respond, and there was no unreasonable refusal to let him have a support person present at relevant dismissal discussions. 

The worker had already been the subject pf a previous disciplinary action in the form of counselling in relation to an earlier incident regarding a failure to follow standard operating procedures. He also held a second job, which was in breach of his employment contract. His employer had lost confidence in him.

Deputy President Dobson concluded that there was a valid reason for the worker’s dismissal. His employment could not continue in circumstances where the client had revoked his site access, despite his employer’s attempts to change this situation. Further, his conduct was so egregious in the circumstances, that the allegation of serious misconduct was substantiated, and his termination was not harsh, unjust or unreasonable.

His application was dismissed.

 

What it means for employers

Given the potential severity of the consequences, dangerous driving on site may amount to serious misconduct and may justify dismissal, provided proper processes are followed.

 

Read the decision

Paul Conicella v MSS Strategic Medical and Rescue Pty Ltd T/A MSS