A truck driver who was sacked for making seriously lewd, sexist and offensive remarks to colleagues at a coal mine has won his job back after convincing the Fair Work Commission that he had engaged in nothing more than inappropriate banter.

The decision has understandably left HR professionals dumbfounded, with many now asking how they can legally dismiss a worker that has engaged in misconduct.

The decision:

The driver accepted that he had engaged in misconduct when his supervisor overheard him making a number of clearly inappropriate and offensive remarks to other drivers via the two-way radio system. An investigation later revealed that he had breached the company’s safe operating procedures in using a radio channel specifically reserved for training purposes for an extended period of time.

The Fair Work Commission agreed that the driver had engaged in substantial breaches of company policy and said that this had provided the company with a ‘sound, defensible and well-founded reason for dismissal’. So how did this worker win his job back?

Commissioner Saunders highlighted that a valid reason based on breach of company policy and procedure does not prevent a dismissal from being unfair. Indeed, this is a well-established rule that can easily catch HR professionals off guard.

The Fair Work Commission paid careful attention to the driver’s length of service, his exemplary employment record and the circumstances in which the comments were made. While not unjust or unreasonable, the decision to sack the driver was found to have been harsh. The driver was given his job back along with an order that his continuity of service be maintained.

The lesson:

A number of recent decisions have emphasized the importance of following due process, even when there is a valid reason for firing an employee. In particular, you should consider the following:

  • The nature and extent of the misconduct
  • The broader context in the workplace in which the misconduct occurred
  • The personal circumstances of the worker, including his or her length of service and prior disciplinary history

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.