Claims removal of vital equipment from work vehicle ended employment
The Fair Work Commission (FWC) recently dealt with a case involving a truck driver who claimed he was unfairly dismissed by his employer, a landscape supply company.
The worker argued that a heated exchange with the company director, followed by the removal of essential equipment from his work vehicle, effectively ended his employment.
This case raises important questions about the nature of casual employment and the circumstances under which an employee can be considered dismissed.
Company removes equipment from vehicle
In January 2024, a casual truck driver started working for a landscape supply company in Brisbane. Due to a previous drink driving offence, the driver needed an interlock device installed in any vehicle he drove. The company allowed this device to be installed on their "Smurf Truck", which the driver used for deliveries.
The driver's work was irregular, depending on the availability of specialised loads for the Smurf Truck. The company would usually inform him of work the afternoon or evening before. Despite also working as a labourer for his neighbour, the driver prioritised his availability for the landscape supply company.
During his employment, the driver raised concerns about award entitlements, driving hours, and safety issues with the truck. These ongoing discussions set the stage for the events that followed.
Worker’s heated exchange with company director
On 26 April 2024, after a long day of deliveries, the driver returned to the company's yard. An incident occurred where the driver was allegedly driving faster than the yard's 10 km/h speed limit, nearly hitting a dog. This led to a heated exchange with the company director.
The driver said the director told him, "you're done", to "rip out the interlock on Monday", and to "f*** off". This exchange formed the basis of the driver's claim that he was dismissed.
The landscape supply company contested the dismissal claim. They argued that the driver had not been fired, pointing to text messages exchanged after the incident where they had tried to schedule a meeting with the driver to discuss the events.
In one message, the company asked, "Following the events of Friday afternoon can you be available for a meeting tomorrow afternoon at 2pm for further discussion?"
The driver replied that he had another job commitment and couldn't make that time. He also asked for more information about the meeting's purpose, stating, "Being casually employed, I am unsure as to the reason you both require a meeting on this matter."
Did the fight lead to employment’s end?
The FWC had to consider several factors in determining whether a dismissal had occurred. These included the words spoken during the heated exchange, the subsequent actions of both parties, and the nature of casual employment.
The Commission referred to previous cases, noting:
"Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."
After weighing the evidence, the FWC determined that the driver had indeed been dismissed. The Commission found the director's words on the day of the incident, along with the subsequent removal of the interlock device, amounted to actions that ended the driver's employment.
The FWC said:
"[These] two events, when considered individually or collectively, were actions by [the employer] that directly and consequentially resulted in the termination of [the worker's] employment."
The Commission also said:
"Even if I was to find that the words of [the director] did not constitute a dismissal, it would not have changed my finding that [the worker] was dismissed."
Lastly, the FWC said:
"[The employer] took no steps to confirm [the worker's] intention or to confirm that his employment was not terminated. Rather, [the employer] proceeded to have the interlock device removed the following day which meant [the worker] could no longer work for [the employer]."
The FWC dismissed the company's jurisdictional objection and scheduled the matter for further conference. This case serves as a reminder for employers to be cautious in their interactions with employees, especially in heated moments, and to ensure clear communication about employment status.
