Beverage giant underscores 'repeated violations' and 'lost confidence' against claim
The Fair Work Commission (FWC) recently dealt with a claim from a worker who alleged that he was unfairly dismissed by his former employer, Coca-Cola Europacific Partners Australia Pty Ltd.
Coca-Cola said that the worker was fired “after a long history of unacceptable conduct, for misconduct and breach of company policies,” and denied the worker’s unfair dismissal case.
A series of company breaches
The employee, Thien Huy Xuan Dang, was a regional technician since October 2016. His job required him to use a company vehicle to attend to the installation, servicing, quality control and maintenance of the Respondent’s machinery within the southern region of New South Wales.
For this job, the worker had to drive thousands of kilometres for work each month to go to customer premises. The employer took measures to introduce systems, policies and procedures to attempt to eliminate speeding and have employees who drive company vehicles adopt safe driving practices.
Between March 2021 and December 2022, the employer’s LogbookMe speed monitoring system recorded 10 different speeding events involving the worker.
After this incident, he was reported for more speeding offences that alarmed the employer and subjected him to a disciplinary process.
During the show-cause procedure, the worker said he was “remorseful” for his behaviour. He also said that there might be an issue with the “cruise control stick” of his vehicle.
He added that he had “personal problems relating to family stresses,” and said that he “will never ever do it again.”
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After “various informal cautions, two counselling letters, two written warnings and ongoing training, within the span of less than two years,” the employer concluded that “there [was] nothing further that could have been done to support the [worker] to cease engaging in speeding events.”
The employer dismissed the worker and that it had “afforded [him] with numerous opportunities to demonstrate conduct in line with your employment contract.”
Worker wanted more technical support
The worker argued that the employer should have been more supportive. He listed the company’s faults and other defences, which include:
- Refused to purchase him a market-available GPS navigation system to put in his work vehicle so as to warn him about changes to road conditions and regulations;
- The speedometer on his work vehicle (or van) always displayed 4km more (or faster) than the speed that was being reflected on the Waze mobile application;
- The company refused to have the speedometer and cruise control checked on the worker’s vehicle so as to have this fault confirmed;
- The employer’s speed monitoring system is inaccurate; and
- The training and learning modules that [he] undertook were not real life scenarios and were hard to apply in practice.
‘A critical part of the worker’s role’
The employer emphasised that “safe driving was a critical part of the [worker’s] role and included the very obvious requirement not to speed.” It also said that between late 2020 and early 2021, the employer “had a sharpened focus on speeding.”
“The [worker] had an abysmal record of over 10 speeding events in less than two years prior to his dismissal. The company had an extensive policy framework for safe driving which [he] was aware of and had been trained in,” the employer said.
“[He] was dismissed for multiple speeding events and, in particular, his blatant and purposeful safety breach,” it added.
An employment relationship’s ‘mutual trust and confidence’
In its decision, the FWC noted that the worker “has always accepted that speeding is wrong.”
“To the extent that he may have been speeding, the [worker] said that such speeding occurred because he did not see a speeding signpost, or because he had to take a different and unfamiliar route to a customer (e.g. because of road flooding).”
But the Commission said that “the regularity of the speeding events cannot be explained away by these generalised assertions.”
The worker also attempted to defend his claim by pointing out that “he has not received any speeding or infringement notices by the police or other regulatory authorities in the last 10 years, and that he obtained a 50 percent discount on his license renewal based upon his good driving record,” however, the Commission was likewise not convinced by his argument.
“Even accepting this evidence, the test for safe driving in the employer’s workplace is not based upon whether a driver has been caught unlawfully speeding by law enforcement,” it said.
“Ultimately, the [worker’s] repeated and unsafe misuse of his tool of trade vehicle strikes at the core of the relationship of mutual trust and confidence which is required to sustain an employment relationship,” the Commission said.
“In circumstances where the role necessarily required the [worker] to engage in extensive driving, it is reasonable that the [employer] lost confidence in his ability to safely do so.”
Thus, the FWC ruled that the worker was not unfairly dismissed. “In all the circumstances, dismissal was the only available disciplinary outcome in respect of the misconduct,” it added.