The Fair Work Commission has knocked back a ‘trust and confidence’ submission made by an employer.
The Fair Work Commission reinstated a portable toilet delivery driver who’s employment was terminated with Coates Hire Operations Pty Limited for a safety breach. The Commission rejected the employer’s claims that the delivery driver should not be returned to the job because it no longer had ‘trust and confidence’ in him.
Commissioner Booth said the driver’s behaviour did not constitute serious misconduct because there was no element of the conduct being “wilful or deliberate”. Commissioner Booth said the driver’s error “was not a deliberate, wilful, reckless or even negligent breach of safety requirements“.
Coates dismissed the driver after he stopped his truck on the then new 13km Gold Coast Light Rail line early in 2014.
Commissioner Booth accepted that the driver genuinely believed the track and wires were not live and that it was safe to park his truck on the track while he picked up a damaged portable toilet. The Commissioner noted that video evidence indicated “no visible hazard zone signs, tape, bunting or other indicia that would objectively give rise to concern that the site was live and dangerous”.
The Commissioner took into account evidence from Coates’ northern region HR Manager that the dismissed driver’s group had not been “toolboxed” about the advice provided to Coates about when the line would go “live“.
The HR Manager also admitted in evidence to the Commission that the work order given to the driver did not contain a safety warning, whereas work orders issued after the driver’s incident incorporated such a warning.
Commissioner Booth rejected Coates’ argument that the driver should not be reinstated because it had lost ‘trust and confidence’ in him. The Commissioner said the driver “struck me as an honest and very willing worker, albeit one who had, in his own words and with hindsight, done the wrong thing, an admission against interest that reinforces my conclusion” and if reinstated there is no reason why “he would not perform his duties in a satisfactory manner and in the best interests of Coates”.
The Commissioner noted that the driver had served the Company for almost 12 years without any criticism of his work performance.
Commissioner Booth has requested Coates and the former employee provide further submissions on compensation for lost earnings.
[Harrington v Coates Hire Operations Pty Limited  FWC 2598 (6 May 2015)]
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