Truck driver fails in unfair dismissal bid

Fair Work finds in Hi Trans favour due to driver's ability to work elsewhere through an agency

Truck driver fails in unfair dismissal bid
The FWC found against the driver’s claim


A truck driver who took Hi Trans Express work through an employment agency has failed in a Fair Work Commission (FWC) unfair dismissal bid.

Though decided on its own facts, the case has echoes of the high-profile Federal Court Jamsek v ZG Operations case, which hinged on the difference between contractors and employees in that the driver involved contended he was employed because the company had sacked him.

Against that, Fair Work Australia found no evidence in his favour.

Though he had previously worked long-haul for the company for several years early in the 2010s, his time there last year was through labour hire agency 1800 Drivers.

Unlike in Jansek, where the lack of opportunity to drive for other firms was a determining factor in the court deciding against ZG, the driver in the Kym Wheare v Hi Trans Express case was able to take jobs with other companies.

At contention was that Hi Trans believed the driver was "driving in excess of industry standards and legal requirements in that he was not taking full mandatory rest breaks", the ruling notes.

Wheare insisted his "level of accreditation permitted longer driving shifts" and, separately, he "believed that Hi Trans had not provided safe vehicles or adequate facilities".   

Read how the Jamsek v ZG Operations case was decided, here

Along with the lack of written or oral contract of employment, Hi Trans argued he was referred there by 1800 Drivers, paid by that entity and Hi Trans was invoiced by it.

Also, notification of the parting of ways had been communicated by the labour hire agency.

Wheare argued that:

  • Hi Trans employees gave him his rostered shifts
  • Hi Trans funded his remuneration and checked whether the remuneration to be paid matched his work roster
  • He dealt with Hi Trans on any operational issues that arose
  • He drove Hi Trans-owned and logoed trucks
  • His original accreditation had been certified by Hi Trans in about 2011
  • His essential worker border pass allowing him to cross borders during the Covid-19 period was issued by Hi Trans
  • Even though he occasionally worked for other trucking companies, most of his work in 2020 was with Hi Trans.

In the end the FWC found, among other things within the totality of the relationship, there was the lack of an employment relationship with Hi Trans and the driver was not barred from working for other firms. This meant there could be no unfair dismissal by Hi Trans.


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