Fair Work Australia has upheld Hunter Water Corporation’s dismissal of one if its employees who failed to take his defective car to be serviced immediately.
Troy Powell was dismissed after he reported a transmission fault with his work vehicle and was instructed by his supervisor to take the car to a local car dealership to be serviced and not attend any further jobs that day.
However, Powell drove the car to two more jobs, before taking it to a dealership the following day.
Before the incident occurred, Powell had already been warned twice during his more than two years of working at the water corporation, receiving a verbal warning – later confirmed in writing – for an inappropriate email, and a written warning for speaking to his supervisor in an “inappropriate and offensive manner”.
A meeting was convened and a decision made to terminate Powell’s employment for ignoring a supervisor’s direction and putting “(himself), members of the public and (Hunter Water’s) asset at risk”.
The letter of termination also outlined how the employee had given his supervisor a false report of his location, confirmed by GPS records.
At the FWA hearing, Powell’s representative argued the investigation was influenced by bias and that Hunter Water could not rely on the vehicle incident to determine it had lost all trust and confidence in the employee.
However, FWA commissioner John Stanton dismissed the application, saying: “I do not believe the (Hunter Water’s) decision to dismiss (Powell) … was a disproportionate response taking into account his service and work history.”
Stanton took into account that Powell had been warned on no less than three occasions that any further breach of the corporation’s policies would be met with further disciplinary action up to and including dismissal.
“The corporation is entitled to expect compliance with lawful work directions given to employees and its express workplace policies and procedures,” he said.
Richard Clancy, executive director of workplace relations at the Victorian Employers Chamber of Commerce and Industry, told SmartCompany the “common sense decision” highlighted the process to be followed in situations where an employee has been given prior warnings and trust breaks down between employee and employer.
“It’s always good to have a disciplinary process that you follow and that you outline the issues and concerns to the employee and give them an opportunity to explain their actions,” says Clancy.
“What we take out of it is that the commissioner was prepared to look at the employment history and say there had been a pattern of failing to follow company policies so it meant that the company had lost confidence in the employee.”
Clancy says failing to take the car in for service when directed to do so was not a minor issue.
“They were acting because of a reasonable concern for his and others safety, so it is heartening that the commission accepted this as a valid reason,” he says.
Health and safety concerns were the key factors in the case, according to Andrew Douglas, partner at M+K Lawyers.
“Where a person is aware of an obligation that exists at law and breaches that obligation then it is reasonable to discipline the person,” says Douglas.
Douglas says each state’s occupational health and safety act imposes an obligation on a worker to take reasonable care not to hurt themselves or others and Powell was likely to have breached this responsibility by failing to take the car in for a service when directed to do so.
“If you are in an organisation where you have trained people because they have a capability and are aware of the safety system and they breach that then they are failing to comply with a lawful direction, which is serious misconduct under the Fair Work Act and allows someone to be dismissed summarily.”
Douglas says there are a series of cases which show that FWA will not tolerate people doing something that they know is in breach of an obligation and in doing so placing other people at risk, including many in the mining industry involving employees failing alcohol limits.
“The learning for business out of this is that it is no longer acceptable to have lengthy policies and procedures that don’t demonstrate the outcome of the misbehaviour,” says Douglas.
“Policies must be driven as outcome based.”
SmartCompany contacted Hunter Water for comment but no response was available prior to publication.
