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Dismissal unfair, despite employer having just cause

Adam Zuchetti
Adam Zuchetti
10 August 2018 2 minute readShare
Dismissal, fired, employer

A former driver will receive compensation of more than $10,000 after his employer was found to have unfairly dismissed him, despite the Fair Work Commission acknowledging there were legitimate grounds for termination.

Hanson Construction Materials was the subject of an unfair dismissal claim by former employee Darren Pericich, who had worked for the business as a tip-truck driver for approximately 4.5 years prior to his termination in November 2017.

The Fair Work Commission (FWC) heard that Mr Pericich was involved in a serious “near-miss” in the truck at a railway crossing, by failing to stop at a red light.

Following the incident, the business issued Mr Pericich with a termination letter, suggesting he had breached the company’s policy by engaging in unsafe behaviour.

“I refer to the incident at around 9:10am on 9 November 2017 when your truck and trailer that you were driving had a serious near-miss when you failed to stop on the red lights on the railway crossing on Cape Cleveland Road with the bullet passenger train approaching,” the transport manager wrote in the letter.

“Hanson’s motor vehicle policy requires that company vehicles must always be driven in a safe manner and all traffic laws must be complied with in full, at all times. It is part of our overall risk management strategy to eliminate “risky” or unsafe behaviour.

“This letter serves as a Termination Letter to you for unsafe driving, effective immediately. You will be paid one week’s pay in lieu of notice.”

While Mr Pericich admitted the incident “could be described as a serious misjudgement as to when the lights were going to trigger”, he disputed that the incident amounted to a “serious near-miss”, and claimed the vehicle was operated safely and no damage was sustained to it, him or to public infrastructure.

However, it was not just the reason for termination but also the process to which Mr Pericich objected.

He argued that he had not been afforded procedural fairness, in that the decision to terminate was taken without him being afforded an opportunity to respond to the allegations beforehand.

The FWC determined that while the incident did in fact constitute a valid reason for dismissal, it upheld that dismissal was unfair because of the way in which it was carried out.

“The Applicant was not afforded procedural fairness. The allegations were not clearly addressed with him prior to the dismissal. He was also not given a proper opportunity to respond with a witness present, prior to being stood down and then prior to the termination,” it said.

“He was also not given the opportunity to view the footage of the incident from the dash cam on his truck prior to the dismissal, nor allowed an opportunity to comment on such to the Respondent. The Applicant was denied natural justice.

“The Respondent is a large employer and had the ability to seek expert advice to avoid dismissal of the Applicant without allowing the required procedurally fair process.”

In determining the amount of compensation to be paid, the FWC heard that the sacking had a significant impact on Mr Pericich and his family, and that job opportunities in his regional location were severely restricted.

“As set out, [Hanson] significantly failed to provide a procedurally fair process in implementing the dismissal. The Respondent is a large organisation, with access to HR and IR advice and resources. However, the Applicant’s conduct in relation to the driving incident (that resulted in the termination) contributed to the dismissal,” the FWC concluded.

“Accordingly, a 30 per cent deduction has been made for this conduct. This reduction represents an amount of $4,693.67

“[As such,] the amount of compensation… to be paid within 14 days of this decision... is $10,951.87.”

Dismissal unfair, despite employer having just cause
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Adam Zuchetti
Adam Zuchetti

Adam Zuchetti is the former editor of MyBusiness and a senior freelance media professional, specialising in the fields of business, personal finance and property. In 2020, he also embarked on his own business journey – inspired in part by the entrepreneurs and founders he had met through his journalistic work – with the launch of customised pet gifting and subscription service Paws N’ All.

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