Termination Upheld for Employee Dismissed for Serious Misconduct

In an unusual case, the Fair Work Commission has rejected an unfair dismissal claim from an employee despite finding that the grounds provided to him in his termination letter were either unproven or not sufficient grounds to support the dismissal.

The worker 'Mr D' had been employed by Defend Fire Services Pty Ltd ("Defend") as a Fire Technician since 23 June 2021, based in the Northern Territory.

He was dismissed for engaging in serious misconduct, including:

1. Using a work vehicle for personal travel without authorisation and failing to maintain the vehicle in a suitable condition.
2. Concealing a tool in a work vehicle despite being asked to return it.
3. Concerns about Mr D's presentation and actions on his work site.
4. Sending an abusive text message to his supervisor on 18 October 2023.
5. Unreasonable lengthy absences from work without reasonable grounds.

Commissioner Stephen Crawford did not find that any of the above reasons provided to Mr D were sufficient to warrant the dismissal. For example, he believed that Mr D's personal use of a work vehicle was known to Defend and had never previously been raised prior to the decision to dismiss him.

However, the Commissioner upheld the termination because Mr D undertook work whilst in a mental state that breached his legislative obligation for his own health and safety.

In evidence before Commissioner Crawford, Mr D admitted that he was "mentally ill" and "wasn't ready" when he worked "6hrs the first day 4 then next 6hrs on the Monday and I think 4 or 5 on the Tuesday." Mr Doherty stated in oral evidence that he was "not the same person" at this time.

 Commissioner Crawford suggested that he may, in fact, have been unfit to drive to work, let alone perform his normal duties. He dismissed Mr D's submission that he had been forced to work because his employer was seeking to remove his allocated work vehicle from him.

As the Commissioner noted,

"In any event, Mr (D) decided that keeping the work vehicle was his priority and that he was prepared to attend work in an unfit state to keep the vehicle. That decision created a substantial safety risk for Mr D and any other employees or contractors working on the site. I find this serious breach of safety laws to be serious misconduct that provided a valid reason for dismissal".

Although acknowledging that there were serious deficiencies by Defend in regard to procedural fairness in the matter, Commissioner Crawford determined that the risk of injury to others posed by Mr D warranted his termination.

Consequently, the application for unfair dismissal was declined.

OD v Defend Fire Services Pty Ltd T/A Defend Fire [2024] FWC 1444 (3 June 2024)

For queries about allegations of misconduct, safety obligations, duty of care, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.