Is the Fair Work Commission taking the piss?

The Fair Work Commission has ordered that a Melbourne garbage truck driver be reinstated after he was sacked for urinating in a CBD laneway during his shift. His employer was also ordered to compensate him for the wages he lost as a result of the dismissal.

What happened?

The driver was caught in the act by a council inspector and issued with an infringement notice for public urination. Both the driver and the inspector later notified the driver’s employer of what had occurred.

The company organised a meeting in which the driver was asked to explain his actions. The Company informed the driver that it was considering terminating his employment and he was asked to provide reasons as to why his employment should not be terminated.

While accepting that the driver had expressed remorse for his actions, the potential for reputational damage and the nature of the misconduct led the company to terminate his employment.

The Fair Work Commission Decision:

In considering the driver’s application for an unfair dismissal remedy, Commissioner Michelle Bissett considered whether the decision to terminate his employment was harsh, unjust or unreasonable within the meaning of the Fair Work Act.

The Commissioner found that there was a valid reason for the dismissal and that the company had provided the driver with an adequate opportunity to respond to the allegations. The driver had even been allowed to have a support person attend each of the disciplinary meetings.

Despite this, the Commissioner found that the decision to sack him was harsh because it was disproportionate to the gravity of the misconduct. The company had also failed to consider the adverse consequences that the decision may have on the driver and his family. Commissioner Bissett ordered that the driver be reinstated and that the employer compensate him for lost wages dating back to 22 August 2016.

What this means for you:

The decision highlights the risks that employers face in terminating employment. A valid reason is not enough. You must also afford the person procedural fairness, and consider whether the particular circumstances may mean that the decision is harsh, unjust or unreasonable.

For more information on the recommendations and what this means for you, clients should contact the HR Assured team. If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.