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TWU member receives excellent result in Unfair Dismissal matter


Unfair dismissal win for truck driver in Adelaide

Fraser Murray was employed by Reliable Petroleum (“Reliable”), a subsidiary business of Peregrine Corporation (commonly known for the OTR petrol/convenience stores). He was employed as a fuel truck driver and had been with the industry for nearly 40 years when he was terminated in early 2017.

The reason for his dismissal related to the fact that Fraser had been recorded exceeding the posted speed limit on the South Eastern Freeway travelling towards Adelaide, South Australia.

The employment relationship is the legal link between employer and employee. Through this relationship various rights, protections and obligations are born and belong to both the employer and the employee.

For employees in Australia, we are protected from unfair dismissal through various mechanisms provided under the Fair Work Act 2009. However, despite this protection being in place, unfair dismissals often occur, with over 10,000 applications being made each year!

To make matters worse, only a handful of unfairly dismissed employees ever get their jobs back, with only 12 applications in 2016/17 for unfair dismissal resulting in reinstatement to their former positions. That’s less than .001%!

Fraser Murray, a long term member of the Transport Workers Union of Australia SA/NT Branch was one of those unlucky ones who found themselves without a job after being unfairly dismissed by his employer.

What was the reason for Fraser’s dismissal?

Fraser was recorded at 88kph by a fixed speed camera, in a 60kph zone; approximately 300 metres after a 90kph zone.

After the incident, Fraser continued to perform work for Reliable until he was stood down approximately four weeks later.

With the assistance of his Union, the TWU, Fraser lodged an Unfair Dismissal Claim.

What happened when the matter went to the Fair Work Commission?

Recognising the seriousness of the speeding incident, the Fair Work Commission found that a valid reason existed for Reliable to dismiss Fraser. However, in all the circumstances, the Fair Work Commission also found that there were a number of factors that made the dismissal “harsh”.

This included the exact nature of the conduct and the circumstances in which the incident took place:

  • It was a single incident involving inattention rather than a deliberate act of recklessness.
  • The Fair Work Commission was satisfied that there was objectively little room for concern that Fraser’s speeding incident would be repeated.
  • The Commission considered it important that Fraser had recognised and acknowledged that his conduct was not appropriate and that he was genuinely contrite.
  • Finally, Fraser’s unblemished work record and the impact of the dismissal on Fraser (given his age) were relevant to the Commission’s decision in finding that the dismissal was an unfair dismissal.

Having found that Fraser had been unfairly dismissed, the Commission had to consider the appropriate remedy in the circumstances.

Based on the evidence before the Tribunal, the Commission found that the employment relationship between Fraser and Reliable had not been irreparably damaged and ordered that the company reinstate Fraser to his truck driving duties.

The company lodged an appeal against the decision of the Fair Work Commission

Unfortunately for Fraser, the decision of the Fair Work Commission was not enough to convince the company to reinstate him and they subsequently lodged an appeal. The company also made an application for the Order of the Commission to be “set aside” until the appeal was dealt with.

This would mean that Fraser would have to wait for months until the appeal was finalised. However, in the end, the application to set the reinstatement aside was denied by the Commission and Fraser was allowed to return to work pending the appeal.

To further complicate the matter, after the company’s application to set aside the Orders of the Fair Work Commission had failed, Reliable then applied to have one of the Judges removed from the Bench of Judges due to hear their appeal. They believed he had shown bias toward the applicant.

Ultimately, this application was also rejected and the appeal went ahead as directed.

Finally, on 8 November 2017 the Full Bench of the Fair Work Commission dismissed the appeal of the company as the Full Bench was not persuaded by any of the arguments made by Reliable Petroleum in relation to the Commission’s findings, stating that the Commission’s approach to the question of reinstatement was in an orthodox manner.

What part did the Union play in this big win?

The moral of this 11 month ordeal is that no matter who you work for, no matter how big or small the employer, it always pays to be Union! If Fraser did not have his TWU by his side, the cost of the proceedings would have exceeded $20,000 and that doesn’t include all the other applications and appeals that were dealt with.

Throughout each step of this process, Fraser was represented by his TWU – The Transport Workers Union of Australia. The TWU supported him through its delegate structure in the workplace and continued to provide legal support until he was given his day in court. This was possible because Fraser’s workplace is 90% TWU and each member pledged their support to Fraser’s return to work.

In an era of record profits, soaring executive salaries, insecure work and the lowest wage growth in 50 years, there has never been a more important time to be Union.

Edward Lawrie (BJusSoc, LLB)
Guest Blog Writer
Branch Assistant Secretary
Transport Workers Union SA/NT

 

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Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.