Summary dismissal is it justified?
In matters involving serious misconduct and summary dismissal it is important for employers to understand what constitutes each and when it is appropriate to summarily dismiss. Failure to reach the requisite standard can result in a successful unfair dismissal application.
Ian Nieuwpoort v South West Transit Group Pty Ltd – Fair Work Commission Perth 22 September 2017
In a recent matter before the Fair Work Commission the applicant Mr Ian Nieuwpoort was employed as bus driver. The case involved the applicant driving with expired driver’s licence, he became aware licence had expired when requested to produce it for examination.
He advised his supervisor he was in possession of expired licence and would ask wife for renewed licence at home. The applicant left message for wife and then departed depot undertaking driving duties without confirmation that his driver’s licence had been renewed.
The applicant called into meeting two days later and dismissed he claimed respondent South West Transit Group Pty Ltd had already determined would be dismissed summarily prior to meeting and respondent not interested in his explanation
The applicant’s case was that when advised that his driver’s licence appeared to not have been renewed respondent allowed applicant to complete driving duties for day, he was not contacted by respondent asking him to stop driving or return to depot during shift.
He claimed that his actions were neither wilful nor deliberate and that he acted immediately to renew driver’s licence once it was drawn to his attention that it had expired.
The respondent submitted that applicant was terminated based on valid reason and that he was provided with opportunity to respond to allegation of driving on expired driver’s licence.
The applicant submitted that Road Traffic Act 1974 (WA) (RT Act) provides an exemption to offence of driving while not authorised ‘because the licence expired’ and grace period of six months to continue driving without committing offence.
At the FWC DP Bull found that applicant’s driver’s licence no longer current until further renewed within six-month period with effect from date of renewal and rejected the argument that the Act provides for exemptions or grace period.
The Commission satisfied valid reason for dismissal in that driving motor vehicle without current driver’s licence an offence and therefore amounted to serious misconduct however it accepted that decision to drive made spur of moment while applicant was in state of shock rather than action taken designed to destroy employment relationship in wilful manner.
The FWC found that the applicant demonstrated remorse for actions and had an unblemished employment record of seven years and age taken into consideration
The Commission found despite finding of valid reason, Commission found actions of applicant did not justify summary dismissal and therefore the dismissal was unfair based on its summary nature. The Commission held compensation should be ordered in the amount of payment of five weeks wages being Mr Nieuwpoort’s entitlement based on his termination of employment with notice.
Some questions arise from this matter;
- Why was Mr Nieuwpoort allowed to drive the bus on the day it was discovered that his licence had expired?
- Why wasn’t it checked that the licence had been renewed prior to Mr Nieuwpoort taking the bus out?
- Why did South West Transit Group summarily dismiss Mr Nieuwpoort two days later. Summary dismissal indicates some sort of urgency is required to prevent injury or harm to the business or it’s employees
- Why wasn’t Mr Nieuwpoort unblemished record of service taken into account?
Summary dismissal is it justified – Lesson for employers
- Understand what summary dismissal and serious misconduct are and what the thresholds are – have a look at this article for more details – http://awpti.com.au/summary-dismissal-2/
- Don’t try and save the 4 weeks pay, it not worth it in the long run.
- If your managers and HR professionals are unsure get some training – http://awpti.com.au/investigation-training/
Full text of the case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc4887.htm
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