Flouting COVID-19 rules and refusing to comply with directions on multiple occasions amounted to serious misconduct, the FWC has found.

In August 2021, a national delivery service was informed that one of its delivery drivers in NSW refused to wear a mask, failed to sign-in with a QR code and talked about conspiracy theories at a client’s workplace.

The driver was instructed to not return to the client’s workplace, yet on 20 August, the client emailed the employer noting that the same driver had shown up at the workplace and was “once again spouting his conspiracy theories and demanded to know who wrote the email about him. He was also not wearing a mask… again”. He also allegedly “went off on a tangent of how he doesn’t watch mainstream media stuff because it’s all ‘bullshit’ and you can’t believe it, and then started talking about how Jeffrey Epstein died and how it’s a conspiracy”.

When the driver’s manager became aware of this information, the driver was allegedly told to refrain from driving his van and that he would be given “indoor duties” while an investigation was conducted.

He then is said to have driven off in the van, despite the manager and supervisor trying to stop him leaving and warning that if he drove the vehicle off the premises, the police would be notified.

The employer said the manager disregarded these warnings and continued on his path, arriving at the main distribution centre where he was told by the centre manager that he had been suspended. 

After being suspended, the driver allegedly showed up at the client’s workplace again to explain why he wasn’t wearing a mask and again began spouting claims about COVID-19 conspiracies.

The driver, who claims he was then unfairly dismissed in October last year, took the matter to the Fair Work Commission.

Although the driver had a satisfactory performance history across his 32-year tenure, this did not excuse his “misconduct in failing to comply with the reasonable and lawful directions of his employer on multiple occasions”, said Commissioner Alana Matheson, who found in favour of the employer.

“His actions could not be described as a single error of judgment in an otherwise unblemished career but rather a decision to embark on a deliberate course of action to return to the [client’s workplace] and talk to the staff about the complaint on multiple occasions when he had been told not to do so,” Matheson said in her decision notes.

A spokesperson from the delivery service told HRM: “We note the judgement from the Fair Work Commission and are pleased with the outcome. Safety and integrity are both core values at Australia Post.”

Dean Cameron, Legal Practice Director at Workforce Advisory Lawyers, unpacks the key findings in the case and the main takeaways for HR.

Refusing to follow instructions

The driver’s alleged failure to adhere to COVID-19 safety protocols as per NSW health orders and insistence on discussing conspiracy theories were “the fuel that started the fire”, says Cameron.

“However, these could’ve been managed. If the driver had stopped there he might’ve been issued a warning or been retrained in COVID-19 procedures… But the driver instead took the matter into his own hands by going back to the client about the complaint. 

“An action like that rarely ends well for the employee because it washes the hands of the employer in relation to any processes the employee then undertakes.”

This type of behaviour, in the context of employee-client relationships, is very familiar to Cameron.

“Unfortunately this is something we see regularly whereby delivery drivers who build up hundreds of interactions with clients develop their own understanding of that relationship, and derive satisfaction in their work from that relationship.”

This means when something goes pear-shaped in the relationship, the employee often feels compelled to jump in and fix it, says Cameron.

“This case is a classic example of someone wanting to do that and they’ve completely mucked it up… The driver’s sense of ownership of the relationship and his pride is probably largely to blame.”

The other major factor contributing to the judge’s ruling was the alleged unlawful use of a company vehicle.

Commissioner Matheson noted that “even the threat of police notification if he drove the vehicle off the premises did not deter him from proceeding to do so”.

“This put the nail in the coffin for the driver,” says Cameron. “It could be regarded as a safety risk as well. That alone would’ve been sufficient to justify dismissal because of the dangerous nature of it.”

If an employee is accused of misconduct, it’s important to conduct a fair and thorough investigation. AHRI’s short course on Investigating Workplace Misconduct can help you do that. Sign up for the next course on 21 July.

Managing relationships

While it’s natural and expected that many employees will form close working relationships with clients, employers would be wise to put some guardrails in place to avoid problems emerging, or at least to manage issues from snowballing. Cameron suggests organisations could:

• Run customer awareness training to educate employees about positive customer interactions and how to best maintain professional relationships with clients.
  
  Because drivers’ interactions with clients are often short and sharp, they can easily be misread, misperceived or miscommunicated, says Cameron. Customer awareness training can help to mitigate the likelihood of that happening.
• Consider attaching body cameras to employees who have frequent interactions with customers.
  
  “Police and security guards all have body worn cameras, and I think in years to come we’ll see that a lot of people who have these sorts of quick interactions will have body worn cameras too.”
  
  If there is a complaint, having a recording on hand can help to clarify any misunderstandings and eliminate ambiguity about what took place.
  
  However, this is a decision that shouldn’t be made lightly, and one that should be arrived at after close consultation with your employees, workplace experts and other relevant stakeholders.
• Establish a clear stand-down clause.
  
  “It might say the employee is permitted to access files and resources for the purpose of responding to allegations, and it should have very explicit actions about who they can and cannot have contact with.”
• Limit access to emails if an employee has been stood down or placed on suspension.
  
  “A lot of the time, IT will arrange for read-only access to emails so that employees can prepare their defence. They can’t receive or send emails, but they can read what’s in the archive.”

In the event that misunderstandings or problems emerge in the employee-client relationship, taking these steps can help to protect the company’s relationship with the client, as well as the interests of the employer and employee involved in the process.