Q: We employ four truck drivers to carry out local and interstate deliveries. We have policies and procedures for all drivers to follow and I am pleased to say that we have an excellent record to date that goes back 7 years.

However, over the last 6 months, we have received three complaints from members of the public in relation to one driver and his apparent tailgating. We have gone over these concerns with him and have re-enforced that we expect all drivers to follow the road rules. His attitude is that the members of the public are overreacting and that, unless we can produce some evidence, we cannot do anything in relation to this.

What is our legal position? Each person who has complained has given us their name, but they have each asked us to respect their privacy and not pass on their details. We are concerned and believe that after three incidents we should be issuing a warning in relation to following road rules. Could you please provide some advice in this matter?

A: Disciplinary action may be required if a worker has been:

(a) underperforming and has not improved in response to remedial action; or

(b) found to have engaged in misconduct.

Unless the worker has been found to have committed serious misconduct, you should issue the worker with a warning before considering other disciplinary action.

Your warning letter should be written concisely and should include the following things:

(a) an outline of the allegations, including:

(i) a summary of the misconduct or work performance issue, e.g. a breach of policy; and

(ii) the findings of the investigation that gave rise to the warning. In this case, as an employer, you are entitled to form an opinion based on the statements you have received from the members of the public. In other words, you are entitled to accept the truth of those statements (unless there is good reason not to believe them) as a basis for concluding in your investigation that this particular driver has breached the safety policies by tailgating.

For example, the fact that there have been three complaints about the same type of conduct would tend to corroborate the fact that the conduct occurred on each occasion;

(b) an outline of an action plan that sets out:

(i) your expectations for improvement;

(ii) dates for improvement; and

(iii) review dates, i.e. when the worker’s performance or conduct will be reassessed; and

(c) a statement confirming that further disciplinary measures, including dismissal, may be taken if:

(i) the worker’s performance or conduct does not improve; or

(ii) the worker has any other performance or conduct issues.

We recommend you review chapter D6 Disciplining Workers for further information.

Please note: The answer is correct at the time of publishing. Be aware that laws may change over time. Refer to Disciplining workers for current advice.