A recent decision of the Fair Work Commission highlights the importance of determining whether an employee’s action strikes at the core of the employment relationship to the point that the statutory entitlement to notice should be withheld.

In this matter, an employee lodged a claim for unfair dismissal when he was dismissed without notice for serious misconduct. The employee, a bus driver was alerted to the fact that his licence may have expired by an Administrative Assistant. After examining his driver’s licence and discovering the expiry date had lapsed almost three weeks earlier, he made efforts to contact his wife to confirm she had renewed his licence. Before receiving any information from his wife, he undertook his driving duties without confirmation that his licence had been renewed.

When the employee returned home at the end of his shift he discovered that his licence had not been renewed by his wife. He contacted the employer and explained the situation, advising that his licence had expired “the day before last”, and that he would be renewing his licence the following morning.

The employee was called into a meeting and asked to explain what had occurred. The employee was summarily dismissed, without notice, at the conclusion of the meeting. He received written reasons for the dismissal the following day, namely the decision to drive without a valid Driver’s licence amounted to serious misconduct.

The employee argued that the licence not being renewed was a genuine oversight that did not amount to serious misconduct and that the employer condoned his driving the bus when an alternate driver was not arranged when the Administrative Assistant stated, “go quickly and sort it out as fast as possible”. The employee also argued that the law allows for what is effectively a grace period of 6 months before the driver commits an offence, so should not be so severe that the employee should be summarily dismissed.

The employee, when asked why he drove without a valid licence, he stated “I don’t know, but I could have just lied about it and I would have been fine”. The employer’s representative believed that the employee was aware of the importance of holding a valid driver’s licence, the employer’s zero tolerance policy to driving without a licence and that he had been sufficiently trained on the matter during induction, in the code of conduct and other correspondence with his employer. When provided an opportunity to respond, at no point did he allege that he was given permission to drive without a licence. The representative also indicated that the employee’s lack of remorse contributed to the decision to terminate his employment.

The Commission rejected the employee’s interpretation of the law, that there is a grace period for expired licences. Instead, the commission noted that the employer had established that it was a condition of employment that the employee hold a current driver’s licence, which was the employee’s responsibility to maintain. The Commission held that there was a valid reason for terminating the employee and that the employee intentionally misled his employer by stating that the licence had only expired “the day before last” when it had in fact expired almost three weeks earlier.

The Commission found that whilst there was an oversight in relation to the expiration of the licence, there was a grave error in judgement that the employee drove, once alerted to the expired licence. Although acknowledging the Employer’s entitlement to dismiss, the Commission did not see the offence as serious enough to warrant termination without notice and ordered compensation to the employee equal to the employee’s entitlement to payment in lieu of notice.

This case serves as a warning to any employer seeking to rely on a zero tolerance policy to justify summary dismissals. Each case should be looked at separately to examine whether the conduct strikes at the heart of the employment relationship.

If you are faced with having to make a difficult decision, ensure you have an expert by your side. Contact a GTAG Workplace Relations Expert on 02 8355 5111.