In brief - Fair Work Commission determines repeated speeding incidents when driving for work valid reason for terminating employment. 

In the recent decision of Susanna Jean Meijer v Coca Cola Pacific Partners [2022] FWC 1286, the Fair Work Commission (FWC) held that an employer can terminate an employee for repeated speeding incidents that constituted a breach of their code of conduct. 

This case serves as a reminder for employers and Persons Conducting a Business or Undertaking (PCBU) of the requirement to assess the risks of workers driving vehicles for work purposes and implement reasonably practicable controls to ensure the workers' safety and the safety of others that may be impacted by the business.

Employee's employment terminated following repeated breaches of the company's policies and Code of Conduct

The applicant was a full-time employee of the respondent and was required to drive the company provided car on a daily basis for her role. To monitor and prevent injury while driving, the employer had implemented workplace safety measures, including a speed monitoring system, safe driving guidelines, tools of trade vehicles policy and e-training modules to manage the safety of workers while driving at work. 

The employee, based in Melbourne, had recorded 62 speeding events, which were monitored by the employer's speed monitoring system during a 19-month period. Over this period, the employee was given several formal warnings on the safety breaches and referred to training materials. Following another incident on the 1 November 2021, the employer commenced a disciplinary process which, in accordance with the 'Managing Driver Behaviour Guidelines', could result in termination of employment. 

In light of the employee's driving record, the employer issued a Show Cause letter on 4 January 2022 to which the employee claimed her breaches were not deliberate and were potentially impacted by medication prescribed for a workplace injury. 

The employer proceeded to terminate her employment owing to her repeated inappropriate conduct, breach of the Code of Conduct, and an ongoing failure to follow company policies and the employment contract. 

FWC finds decision to dismiss the employee was not harsh, unjust or unreasonable 

The employee made an unfair dismissal application to the FWC claiming the employer did not have a valid reason for the termination. A valid reason for termination is a key consideration set out in section 387 of the Fair Work Act when determining whether a termination is 'harsh, unjust or unreasonable'. This criterion requires an employer to have a 'valid reason' for exercising their right to terminate an employee. This valid reason must be 'sound, defensible or well founded' (Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 271 at p. 373). 

The employee contended that the monitoring system was inaccurate, that she did not receive email alerts from the system and that she was likely impaired by the medication she was on at the time of the 1 November 2021 incident. 

The Commission was not convinced by the employee's further reasoning that the speeding incidents only represented a small percentage of her total driving and therefore had no merit, providing (at [114]) that:

"to suggest that her speeding events were only a small percentage of her driving thus excusing the conduct is tantamount to stating it is ok to ignore a critical safety policy so long as you don't do it very often.

The Commission concluded that the employer had not erred in terminating the employee owing to the:

  • employee's multiple speeding incidents that remained ongoing; 

  • employee's breach of the Employer's Guidelines, Tool of Trade Policy and Code of Conduct;

  • training provided to the employee;

  • warnings the employee was given; and 

  • opportunity to respond to the 1 November 2021 incident. 

It was held that the decision to dismiss the employee was not harsh, unjust or unreasonable, and the application was dismissed. 

A safe driving policy, where relevant to the business, is a reasonable measure to manage risks to employees and others, and to fulfill health and safety obligations

Employers and PCBUs are required to ensure, so far as reasonably practicable, the health and safety of employees at work and that the health and safety of other persons is not put at risk from the conduct of the business or undertaking. These duties are required under the Work Health and Safety Act (WHS Act) in all states and territories of Australia, but for Victoria, where the duties under the Occupational Health and Safety Act are expressed in similar terms.

The meaning of workplace under the WHS Act includes vehicles and any place a worker goes, or is likely to be, while at work.

Employers and PCBUs are required to assess the risks of workers driving vehicles for work purposes and implement reasonably practicable controls to ensure the workers' safety and the safety of others that may be impacted by the business.

The implementation of a safe driving policy is a reasonable measure to manage the risks faced by employees and workers. The Government statistics regarding motor vehicle incidents and injuries, related to speeding motor vehicles, are well known. In 2021, the deaths from vehicle collisions exceeded 1,000 people across Australia.

Where PCBUs and employers provide motor vehicles for their workers, where the workers are required to drive for work purposes each working day, appropriate safety management systems must be implemented to manage the known risks.

Implementing a "Safe Driver Behaviour" policy and procedure relevant for your business will be one key step in meeting the safety duties upon employers, business and officers.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.

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