The Fair Work Commission has awarded a truck driver $16,128 in unfair dismissal compensation from his employer after he was caught on camera urinating on a Woolworths warehouse while at work.
The case is the latest in a string of unfair dismissal cases won by employees due, at least in apart, to procedural reasons. Similar cases include the marijuana smoking ferry driver, a childcare worker accused of smacking a two-year-old child and the Qantas flight attendants who allegedly misused their Cabcharge cards.
Truck driver David Cowan was employed by a company called Sargeant Transport. As part of his job, he was required to make five to 10 deliveries per week to a Woolworths Regional Distribution Centre at Barnawatha, near Wodonga in northeast Victoria.
On February 28, Cowan was caught on a closed circuit security camera urinating on a wall of the warehouse, before pressing an intercom button and making his scheduled delivery.
The incident was in violation of the company’s driver’s manual, which clearly states: “All employees are to conduct themselves in a polite and courteous professional manner at all times whilst on duty. Whilst on a customer’s premises drivers are expected to adhere to any rules applicable at the site.”
Within days of the incident, on March 6, a manager from Woolworths informed Sargeant Transport’s group operations manager Simon Gray about the security footage. The supermarket giant advised him that, under its company policy, Cowan would be banned from making deliveries to its company sites for three months.
A day later, a human resources manager from Sargeant, Kate Jewell, had a short discussion with Cowan over the phone about the footage.
Gray was then invited by Woolworths on March 12 to view the footage, and after a discussion with Jewell, decided to dismiss Cowan.
While not seeking to be reinstated by Sargeant, Cowan filed an unfair dismissal claim against Sargeant Transport seeking compensation.
In the decision, Fair Work Commissioner Bissett found that urinating at the entrance to the distribution centre “is not conduct that could be described as ‘polite and courteous’ or ‘professional’”.
“I am satisfied that the applicant did urinate at the entrance to the RDC on 28 February 2014. Further, I am satisfied that the conduct was in breach of the respondent’s policy as set out in the Drivers Manual,” Bissett said.
However, despite the parties agreeing that it was inappropriate to urinate on a customer’s warehouse, and despite the rules being clearly stated in the driver manual, Sargeant Transport was still found to have unfairly dismissed Cowan.
“At no stage was any allegation put to the applicant in writing, nor the extent of the evidence explained to him. Further, some relevant information, such as the length of the ban from Woolworths, was not given to the applicant,” said Bissett.
“The conduct warranted disciplinary action but I consider dismissal a harsh decision.”
SmartCompany contacted both Sargeant Transport and Woolworths this morning but no official comment was available prior to publication.
Employment lawyer Peter Vitale told SmartCompany he would not classify the most recent decision as being part of a trend towards employees winning cases on procedural grounds.
“But certainly there have been some decisions recently which have, for various reasons indicated a tolerance for misconduct,” Vitale says.
“In this case the commission found that an employer’s investigation was unsatisfactory and it failed to provide a reasonable opportunity or the employee to have a support person present.”
Vitale says even in cases where an employee doesn’t wish to regain their old job, they can still ask the Fair Work Commission for compensation for unfair dismissal.
“However, the usual approach of the commission is to reduce the compensation to take into account anything the employee has earned elsewhere in the meantime,” he says.
“In this case, the commission also took discretion to reduce the employee’s compensation by 30% on the grounds their own conduct contributed to their dismissal.”
Andrew Sadauskas is a former journalist at SmartCompany and a former editor of TechCompany.
