Former Ambrose Haulage driver wins unfair dismissal claim

By: Brad Gardner


Driver awarded $6,016 because company did not follow correct dismissal procedures.

 

Small trucking outfit Ambrose Haulage has been ordered to compensate a former truck driver for failing to follow correct procedures when sacking him.

In a lesson to other small businesses, Ambrose Haulage left itself exposed for not complying with the Small Business Fair Dismissal Code.

The code applies to firms with fewer than 15 employees and outlines when dismissals can occur and what a company must do before showing an employee the door.

Ambrose Haulage had 13 employees when it summarily dismissed Martin Cochrane in late 2014, but Fair Work commissioner Chris Simpson found that Cochrane’s actions did not justify the company’s decision.

"I have read all the material submitted by the Applicant [Cochrane] and the Respondent [Ambrose Haulage], and I am satisfied that the conduct of the Applicant did not meet the criteria to justify the summary dismissal in accordance with the Small Business Fair Dismissal Code," Simpson says in his written judgment.

"The Applicant’s conduct was not conduct sufficiently serious to justify immediate dismissal."

Cochrane was awarded $6,016 in compensation.

The Small Business Fair Dismissal Code states an employer can dismiss an employee without warning for serious misconduct like theft, fraud, violence and serious breaches of occupational health and safety procedures.

Ambrose Haulage argued it was within its rights to summarily dismiss Cochrane because of his attitude toward fellow employees and the company’s clients and for not undertaking a shift he was required to work.

However, Simpson says the company did not warn Cochrane his behaviour was unacceptable.

"In the circumstances I cannot be satisfied any of these issues provided a valid reason for termination," Simpson says.

Likewise, he adds that the driver’s failure to perform a shift did not mean Ambrose Haulage could summarily dismiss him.

Simpson says Cochrane sent a text message to Ambrose Haulage director Jamie Ambrose on the night of the shift telling him he was going to bed and that he might not work the following day.

Cochrane sent the message after another driver that was due to handover to him did not make contact.

"Whilst the Applicant should not have reacted to the circumstances as he did, it is the context of being a long distance driver who would reasonably have some expectations about certainty concerning when he will and will not be working, and the failure of the communication system led to frustration on his part," Simpson says.

"In my view it did not provide a valid reason for dismissal. It is clear the Respondent decided to terminate the Applicant when he was not fully apprised of the facts of what happened that night. The Applicant did not fail to attend work as was initially claimed by the Respondent."

Simpson says Cochrane was not told of the reason for his dismissal or given the opportunity to discuss the dismissal — both conditions that must be met under regular dismissal procedures.

He ruled against reinstating Cochrane, saying the relationship between the driver and Ambrose Haulage "was becoming increasingly difficult and unstable".

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