Patrick O'Sullivan v Qube Logistics (2016)

Facts

Recently. the Fair Work Commission (FWC) was asked to determine if Qube Logistics had a valid reason for dismissing an employee accused of workplace safety breaches, after he had already received formal verbal and written warnings.

Background

The worker, Mr O'Sullivan, brought an unfair dismissal application against his former employer after his dismissal in January 2016 as a truck driver delivering shipping containers and bulk products from Qube Logistics' facility to various sites.

Mr O'Sullivan was dismissed for "serious and ongoing [safety] breaches" of his role, deemed as misconduct. He had been provided with ample notice to improve by means of formal meetings and written warnings. These disciplinary issues arose from seven safety-related incidents involving Mr O'Sullivan, including:

• in late 2013, Mr O'Sullivan drove one of Qube Logistics' vehicles into a level crossing with warnings lights or bells (no formal warning);
• in March 2014, he drove in an unsafe manner (issued with a written warning and forewarned of further disciplinary action [including dismissal] pursuant to any future breaches);
• in June 2015, he spilt 1 tonne of product onto the ground at a customer's site (final written warning - warned of further disciplinary action being ta ken, including a review of his ongoing employment);
• in August 2015, Mr O'Sullivan was stood down for failing to provide his employer evidence that he held a current valid driver's licence (no further disciplinary act ion);
• in October 2015, he was caught speeding in one of Qube Logistics' vehicles (signed Manual Compliance Non Conformance Report no other disciplinary action);
• in December 2015, he was caught speeding in his employer's vehicle, for which they received an Infringement Notice (suspended to allow for response);
• in January 2016, Qube Logistics received a complaint from a member of the public relating to two separate incidents on the same day:

• speeding and dangerous driving;
• and tailgating.

Mr O'Sullivan was found to be in control of one of Qube Logistics' vehicles operating in the area at the time of the first incident, and most likely in control of the vehicle involved in the second incident. Qube Logistics issued a show cause letter, to which Mr O'Sullivan responded in writing and during a meeting with a support person.

Mr O'Sullivan was then summarily dismissed in late January 2016 due to the ongoing failure to perform duties safely, professionally and in line with Qube Logistics' standards and procedures.

Judgment

The FWC first looked at whether the reason to terminate Mr O'Sullivan's employment was deemed valid. The FWC explained there were two threshold issues. Namely:

• whether the alleged conduct took place; and
• if so, whether it constituted a valid reason.

Based on both parties' submissions, and verbal evidence provided by various employees of Qube Logistics, the FWC was satisfied the above series of events did occur, and was relied upon by the company in deciding to dismiss Mr O'Sullivan.

The FWC was also satisfied that the reason for Mr O'Sullivan's dismissal was valid, concluding that Mr O'Sullivan was clearly notified of the reason for his dismissal, having been provided with ample time and opportunity to address the various safety concerns.

Considering all this, the FWC held that Mr O'Sullivan's dismissal was not harsh, unjust or unreasonable.

Lessons

This decision highlights several key take-away lessons for employers. These include:

• ensuring all allegations of breaches of a company's safety policies or procedures are notified to the employee in detail, providing the opportunity to respond before disciplinary action is earned out with relevant support if need be; and
• ensuring that the reason for an employee's dismissal is clearly outlined in any employment termination meeting or letter.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.