Driver's loss of licence not a valid reason for instant dismissal

Thursday 13 March, 2014

The Fair Work Commission (FWC) has ruled that an employee who lost their licence, and consequently was unable to fulfil their contractual duties, was unfairly dismissed.

The employee, who was hired by Surf Toyota – a new and used car sales and service operation – was hired primarily as a Spare Parts Storeman/Parts Interpreter. A small component of the position included motor vehicle delivery driving.

On the morning of Friday 2 August 2013, the employee was caught by Police driving at 45kms an hour over the speed limit, in which his driver’s licence was suspended immediately. The employee advised his immediate supervisor that he was unable to attend work as a result of losing it, and advised that he would be taking the day off to attempt to get it back for work purposes.

The employee was unable to obtain any form of conditional or concessionary driver’s licence for work purposes, and as a result, informed his employer that he was unable to perform any of his driving components for the entirety of the six month suspension.

On Monday 5 August the employer instantly dismissed the employee stating that without a valid driver’s licence, “the employee could not fulfil a “major part” of his role”. The employer advised that he would be dismissed that day, but offered the employee to continue working for the remainder of the day. After the employee refused he was paid his accumulated annual leave entitlements, together with payment for one day of work.

The employee conceded that whilst the loss of licence was reason enough for his dismissal, he did not believe it was serious misconduct and therefore should have been afforded procedural fairness in receiving his entitled 3 weeks’ notice period.

Commissioner Cambridge declared that while the loss of a driver’s licence for a six month period could be considered a valid reason for the dismissal of the applicant with notice, “the employer unfortunately acted upon misconceived advice that the loss of licence could represent a valid reason for summary dismissal”.

The FWC reiterated that what may be a valid reason for a termination with notice, may not be a valid reason for instant dismissal. In doing so, the FWC again highlighted the high threshold test set for instant dismissals.

Commissioner Cambridge noted whilst the driving component of the employee’s duties “could be reasonably circumvented in the short term... the applicant did not commit any serious and wilful misconduct such as would be necessary to justify summary dismissal”.

Furthermore, the Commissioner confirmed that “the procedure that the employer adopted in dealing with the employment issues which arose from the suspension of the applicant’s driver’s licence was, regrettably, deficient”.

In providing his conclusion, Commissioner Cambridge noted that the employer failed to provide notification of the reason for dismissal; did not provide the employee an opportunity to respond to any prospects, short or long term, which might accommodate the loss of the driver’s licence and  did not offer a support person.

It is for these reasons the Commissioner confirmed the employee’s dismissal was harsh, unjust and unreasonable and awarded the employee 3 weeks’ notice.

Members are reminded to always ensure that when contemplating terminating an employee’s employment, they identify a valid reason and afford the employee procedural fairness. CCIQ’s EAL team can assist members faced with the decision to terminate an employee’s employment. CCIQ members can contract the EAL team on 1300 731 988 or advice@cciq.com.au.

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