The Fair Work Commission (FWC) has upheld an employer’s decision to terminate the employment of its delivery driver employee following an isolated incident involving theft by another of a company vehicle he was driving.
The background
On 5 November 2019, Mr Stanley Sully (Mr Sully) was dismissed by his employer, CBMG North Pty Ltd (CBMG) due to allegedly engaging in serious misconduct when a company vehicle he was driving was stolen from outside a house he was “housesitting”.
Mr Sully said that the reason for attending the house was to pick up a pen to fill out a logbook as the pen provided by CBMG was unsuitable. As such, Mr Sully maintained that his dismissal was unfair because such action was disproportionate to his conduct and he sought reinstatement of his employment.
In issue
- The FWC was required to consider whether the dismissal of Mr Sully was unfair.
FWC decision
The FWC considered the criteria stipulated under s 387 of Fair Work Act 2009 (Cth) that is, whether the dismissal was harsh, unjust or unreasonable. The following provisions were of paramount importance to the decision reached by the FWC in finding that the dismissal was not unfair.
Section 387(a) - whether there was a valid reason for the dismissal
The FWC was satisfied that there was a valid reason for Mr Sully’s dismissal in that:
- it was more probable than not that Mr Sully left the keys of the vehicle in the ignition when he entered the house resulting in the vehicle being stolen. Mr Sully’s version of events where he maintained that he took the keys inside with him and left them on a table were rejected; and
- he was carrying confidential financial information relating to CBMG’s customers. As such, his conduct was careless and negligent as it exposed CBMG to damage with its customers by compromising their private financial information.
Section 387(b) - whether the person was notified of that reason
Mr Sully was not notified of the reason for his dismissal before a decision to dismiss him was made as he was only made aware of the reasons for the termination in the termination letter.
Section 387(c) – opportunity to respond
Mr Sully was not provided a reasonable opportunity to respond to the termination allegations as the decision to dismiss him had been made and effected by CBMG before he was offered the opportunity to discuss the matter.
Despite this (among other circumstances which in fact amounted to procedural unfairness) Deputy President Asbury did not accept that this was of such significance that the provision of this opportunity would have resulted in Mr Surry remaining in employment.
Implications for you
This case serves as a reminder that an employee’s negligence can amount to serious misconduct. As such, employees should be cognisant of ensuring that they take reasonable care of property belonging to an employer.
Further, even if an employee is not notified of the reason(s) of dismissal or provided an opportunity to respond to the reason(s) prior to dismissal, this in itself will not necessarily amount to an unfair dismissal.
