By Mike Toten Freelance Writer

An Accounts Manager, who had a company car was unfairly dismissed after he lost his driving licence for six months. The employer claimed that the alternative arrangements it put in place to manage around the situation were not working effectively. The judgment examined the issue of whether driving was an “inherent” part of his job.

Facts of case

The employee was an Accounts Manager dealing with clients in southern regional New South Wales. When he told his employer that he might lose his licence, the employer promised to manage around the situation.

When he did lose it for six months, the employer made the following arrangements:

  • He could work from home
  • He could maintain contact with clients by phone
  • Co-workers could drive him to client visits every four to six weeks

However, the employee was not told that these arrangements were on a trial basis only. The employee successfully completed a three-day client visit trip, and in his monthly online meetings with his manager, the latter did not raise any job performance issues.

However, no further client visits were arranged after that, and at the next online meeting, the employee was told without any prior warning that he would be dismissed because there were performance problems. The manager claimed that sales figures had dropped, but the employee claimed he had not received the support for client visits he was promised, and had also had clients taken off him.

The dismissal letter claimed that losing his licence meant that he no longer had the ability to perform the inherent requirements of the job (which included face-to-face contact with clients), quoting the sales figures as evidence.

Decision

The FWC found that the employee was unfairly dismissed, for the following reasons:

  • The drop in his sales figures was not a significant amount, and the figures were similar to those for other Accounts Managers.
  • He was not warned about the concerns about his performance before being dismissed and did not have an opportunity to respond to them or have a support person present.
  • The employer failed to continue to honour its promises to accommodate his loss of licence. When it initially provided support, his sales figures exceeded targets, but they only dropped after it withdrew the support.

The FWC added that it was an inherent requirement of the job to make sales, not to hold a driving licence. Even without the licence, he could still make sales and perform the job.

It awarded the employee compensation of 12 weeks’ pay, amounting to $27,600.

What this means for employers

Losing a driving licence may be a valid reason to dismiss an employee, but only where it is clearly an inherent requirement of the job, eg for a truck, bus or emergency vehicle driver. And even in those cases, the employer should first investigate whether there are practicable ways to manage around the situation until the employee regains his/her licence.

In this case, it is doubtful whether having a licence was an inherent part of the job, alternative arrangements appeared to be feasible, and then the employer did not implement the dismissal in a procedurally fair way.

Read the judgment

Mr Martin Gunn v Polymaster Pty Ltd - [2024] FWC 1978 | Fair Work Commission