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27 Jul 2020

HHG Legal Group’s Employment Law team’s Associate, Gemma Wheeler-Carver and Lawyer, Fintan Roberts provide an update on some recent employment law cases involving employee dismissals. 

20200727 employment In article

With all of the news recently covering the devastating impact of COVID-19 on employment conditions, employees need to remember that despite the ever-changing employment environment, all of the usual employment obligations and duties still apply. Two recent cases in the Fair Work Commission demonstrate this aptly.

Case #1: Failure to provide a urine sample

Last month, the Fair Work Commission heard a case in which an employee was directed to take a drug and alcohol test after the worker’s GPS showed that he had driven to the wrong location and he explained this to his employer by saying that he must have “zoned out.” The employee went to the toilet at the clinic before seeing the testing doctor and claimed over the next 3 hours that he was unable to urinate. After leaving the clinic without providing a sample, his employment was terminated by his employer. The employee claimed that this was an unfair dismissal.

The Deputy President held that the dismissal was valid and that the employee had failed to “take all reasonable measures to enable himself to provide a sample”, which would have included fetching and drinking multiple cups of water or soft drink. The Deputy President found that did not matter or make sense that he was too angry and upset to provide a sample. Emphasis was placed on the importance of occupational health and safety standards in a safety-critical industry such as heavy road transport and that actions of an employee that were not consistent with those standards justified summary dismissal.

Case #2: Care of company property 

Even more recently in early July, the Fair Work Commission upheld the employer’s decision to terminate the employment of its delivery driver employee following the theft of a vehicle that he was driving. The employee had stopped off briefly at his house when the company vehicle was stolen from outside the house. The employee stated that his reason for attending the house was to pick up a pen to fill out a logbook as the pen provided by the company was unsuitable. On this basis, the employee had argued that the dismissal was unfair. Interestingly enough, the Deputy President found that the dismissal was not unfair even though the employee was not given an opportunity to respond to the termination allegations before dismissal.

On closer inspection during the giving of evidence, it was determined that the reason for the dismissal was not that the employee stopped at his residence while undertaking deliveries, but rather that he left the vehicle in circumstances where it could be stolen (keys allegedly left in the ignition with door open), with the vehicle containing confidential information about customers, vehicle manuals and keys.

Key Takeaways

These cases demonstrate a few key takeaways, namely that:

  • As an employer, it is still open to you to take disciplinary action against an employee for breaches of their employment contract, even where subsidies such as JobKeeper are being accessed
  • As an employer, it is important to make sure you take the correct steps when terminating an employee’s contract
  • As an employee, you should take reasonable measures to assist and comply with reasonable and lawful directions given by your employer and in particular be wary of how you treat and use company property that is your responsibility
  • As an employee, be aware that your obligations to your employer continue notwithstanding JobKeeper subsidies and the current world situation

How HHG can assist

Whether you are an employer considering the dismissal of an employee, or an employee who believes you have been unfairly dismissed, our employment law team are always available to help you with any questions that you may have. If you require any further advice or assistance regarding your obligations and rights, please contact our team at (08) 9322 1966.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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