A truck driver sacked by telephone for speeding has won his unfair dismissal case, but will receive no compensation or his job back.
The Fair Work Commission found the employer had a valid reason for the dismissal, but failed to provide procedural fairness.
Commissioner Ian Cambridge said workers should never be sacked by telephone or text message, describing it as “unnecessarily callous”.
Industrial advocates say the case is a reminder to employers to follow proper processes when dismissing a worker.
Truck driver worked for company for five years
James Folwell worked for Hi-Trans Express as a long haul truck driver since February 2015.
His duties involved driving B-doubles – a prime mover with two trailers – interstate.
Speed limiters fitted to the company’s trucks stop them going above 100km per hour.
However, vehicles can exceed the 100km limit when travelling downhill if the driver doesn’t engage the braking system.
The company monitors their vehicles at its Adelaide headquarters using a GPS system.
The monitoring system triggers an alert when vehicles reach 106km and another at 116km.
Truck driver caught speeding three times
In March 2018, Hi-Trans issued Folwell with a formal warning in respect to speed when monitoring systems recorded him driving up to 116km.
Additionally, the company issued the driver a second formal warning after it recorded his vehicle driving up to 116km in October 2018.
Then, on the 9th of October 2019, an email alert at head office indicated Folwell’s prime mover reached a speed of 116km.
Company launches investigation
Hi-Tans immediately suspended Folwell and commenced an investigation.
During a telephone meeting, the driver and his support person offered a number of explanations, including:
- he suffers disturbed sleep creating a fatigue problem,
- he was driving an unfamiliar truck,
- the speedometer was hard to see because of his driving position.
He also pointed to his substantial length of service and good driving record over five years.
Following the investigation, a manager telephoned Folwell to inform him of his immediate dismissal.
Fair Work Commission dismisses excuses
Commissioner Cambridge described Folwell’s excuses as “unfounded, spurious and unlikely propositions.”
Furthermore, he found the driver’s misconduct involving the overspeed incident in October 2019, “represented a critical infringement and gross breach of safety”.
“Therefore, there was valid reason for the dismissal of the applicant.
“The finding of misconduct made by the employer, has established sound, well-founded and defensible reason for the dismissal of the applicant.”
Employers should not sack workers over the telephone
Despite finding Hi-Trans had a valid reason to dismiss the driver, Mr Cambridge criticised the company’s method of dismissal.
“Advice of dismissal should not be conveyed by telephone, text message or other electronic communication.
“Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face.
“To do otherwise is unnecessarily callous.
“The advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally.”
As a result, Mr Cambridge found the absence of due process made the dismissal “harsh” and therefore “the applicant has succeeded in establishing that his dismissal was unfair.”
However, the Commission ruled reinstatement or payment of compensation inappropriate, despite Folwell winning the case.
Lesson for employers
Industrial advocate Miles Heffernan from Dismissals ‘R’ Us says the case is a lesson for all employers.
“Employers must follow proper processes when dismissing an employee,” he said.
“Businesses not aware of the correct steps to take when sacking someone should seek urgent expert advice before commencing any disciplinary process.”
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