This case highlights a dismissal could be ruled unfair if poor performance is mistaken for misconduct.

Senior deputy president Hamberger from the Fair Work Commission has ordered domestic postal freight company Startrack Express to pay one of its drivers $17,500 in compensation after it was found that the company had unfairly dismissed an employee of eight years.

While there were several reasons as to why this case amounted to unfair dismissal, the most interesting issue was that Hamberger ruled the employee’s poor performance was wrongly treated as misconduct – because the mistake caused the employer to behave in a way that worked against them at the hearing.

Run down of run sheets

From December 2014 the dismissed employee was working as a bulk fleet supervisor. In 2016-2017 he was also given the duties of the bulk fleet clerk whenever the clerk was on leave. These checker duties involved reviewing drivers’ run sheets and signing them off as either compliant or non-compliant. By the time he was dismissed the employee had taken on the responsibility on an ongoing basis.

The run sheets were used to ensure compliance with the company’s internal safety policies. On the run sheet was a timeline across 24 hours which the drivers had to record their rest and work times.

The compliance process involved auditing 13 elements on a run sheet to ensure they were done correctly. The clerk told the court that he had explained to the employee in detail how to do this process and was satisfied the employee could do this process properly.

Hamberger highlighted the fact that by law Startrack Express was not required to ensure heavy machinery drivers kept a diary of run sheets as their deliveries did not generally exceed 100km in distance.

The dismissal

In October 2018, the company carried out an audit of driver run sheets. To do this, they selected 10 run sheets on five random dates across a five month period and checked for accuracy and compliance. This audit found 14 of the applicant’s ‘compliant’ run sheets were non-compliant. With further investigation (looking at the same drivers) they found a total of 39 run sheets were incorrectly signed off as compliant by the applicant.

After a disciplinary meeting in November 2018 where the applicant was presented with four of the non-compliant run sheets, there was a long correspondence between them where the employee realised his job was on the line and tried to keep it, including by answering the allegations, and the employer conveyed its preliminary view that his behaviour amounted to misconduct. The employee was ultimately dismissed in early December.

The employer’s letter of dismissal treats the whole matter as if it were dealing with misconduct. It outlines the allegations and the applicant’s responses (he insisted he’d had inadequate training and that he genuinely thought he was filling out the sheets correctly).

As you would expect from a dismissal about misconduct, it referred to the company’s ethical policies and minimum standards. It focuses on breaches of these rather than inadequacies of performance. So it’s no wonder it found the applicant’s claims about insufficient training unpersuasive.

Following the employee’s dismissal the employer’s performed another audit which “identified a very large number of failures by the applicant with regard to his checking of run sheets: including instances where drivers had failed to take the correct breaks as well as a wide range of other issues.”

Crucially, the employee had not seen or been spoken to about this newer audit before he was dismissed – thus he was unable to defend himself against these allegations.

Misconduct vs poor performance

There were a few factors Hamberger took into account in determining whether the employee’s dismissal was “harsh, unjust or unreasonable”. First of all, he found that the company did have a valid reason for sanctioning the employee – he even thought it impressive.  

“The [employer] is to be commended for its diligence in not only adhering to the minimum legislative safety obligations, but also enforcing policies that go beyond these,” says Hamberger. “The [employer] was entitled to expect the [employee] to follow all its policies, and to sanction him for his failures.”

However (as discussed above) the employer failed to make the employee aware of the serious misconduct allegations and he was unable to respond to them prior to dismissal.

Hamberger determined that the employee’s process in reviewing the four run sheets were treated incorrectly as a matter of misconduct rather than poor performance as Hamberger says the “failures in question were not wilful or deliberate.” This appears to be the crucial lesson – the distinction between poor performance and misconduct is often intent.

Hamberger continues, “I am satisfied that they were in the nature of mistakes and were presumably the result of a lack of due diligence, rather than any decision on the part of the applicant not to perform this part of his role.”

He also noted that the applicant had shown a willingness to be coached and undertake further training to fix his performance.

The proper process that the employer should have followed was to give the driver a warning about his unsatisfactory performance.

“The applicant indicated a willingness to undertake further training and to work to try and resolve the issues with his performance. He was not afforded that opportunity,” says Hamberger.

Hamberger noted that Startrack Express is a large business and it is reasonable to expect it would have followed a rigorous dismissal process. Hamberger also took into account that the employee had a largely unblemished record.

“Balancing all of the above considerations, I am satisfied that the applicant’s dismissal was harsh and unreasonable,” says Hamberger. “The respondent should not have dismissed him without giving him a warning and a chance to improve.”

The driver did not seek reinstatement but instead sought compensation as he has successfully gained employment elsewhere. Hamberger ordered Startrack Express to pay the driver $17,500 for the 10 weeks he was unemployed.