A small business must pay $17,000 to a truck driver it sacked for speeding after the Fair Work Commission (FWC) found he was unfairly dismissed.
Green Gables Express Pty Ltd conducted a retrospective review of the employee’s driving speeds during delivery runs after he hit a dead kangaroo and caused damage to the company’s vehicle.
The employer used the truck’s GPS monitoring system which recorded the truck’s speed and location at approximately every second.
It concluded that not only was the employee driving at 98 kilometres per hour in an 80 kilometre per hour zone when he hit the kangaroo, but he had also been speeding on every other day that it reviewed.
The employer then dismissed the driver. In its termination letter it wrote:
“Green Gables Express Pty Ltd has a zero tolerance of speeding and on several occasions the vehicle you were in control of on your run … was recorded speeding over the legal speed limit through the navigational monitoring system installed in the vehicle.
Management have spoken to you about speeding previously and as you have continued to drive over the legal speed limit your employment is terminated effective from the 19 December, 2018.”
Along with the termination letter, the employee was handed a copy of a document dated three days before the kangaroo incident which read:
“Please be advised that our company has zero tolerance of speeding. Any driver recorded speeding will be terminated.”
The employee contended that he had not seen this document prior to his dismissal. FWC Vice President Adam Hatcher accepted this.
Also, the employee had not been informed about the employer’s investigation into the kangaroo incident and his speeding, or that he could face any disciplinary action as a result of the investigation.
Further, Vice President Hatcher found that the GPS data the employer submitted as evidence of speeding could not be relied on.
“[T]he GPS does not show the road speed limit at any location,” he said.
“[S]peeds recorded vary significantly second by second, even where it is clear that the vehicle is on the open road and travelling at speed.
“Variations of up to 5 km/h from one second to the next are common.
“This leads me to conclude that the data should be analysed on the basis that, in order to ascertain whether there has been any ‘speeding’ in the conventionally understood sense, it is necessary to identify a reasonable period over which the [vehicle] has travelled over the speed limit.
“There is no evidence of the actual speed limits over the route, so the best that can be done is to apply the rule that non-urban roads which are not motorways have a default speed limit of 100km/h, while recognising that poorer quality or more difficult roads may be sign-posted at 90km/h or 80km/h.
“It is common ground that on no part of the route was there a speed limit higher than 100 km/h.”
While Vice President Hatcher did acknowledge that the employee had been speeding in a “strict sense”, he pointed out that the employer had not taken into account the following three mitigating factors:
- (1) The periods of speeding demonstrated are generally brief, and the occasions on which there were more sustained periods of speeding are few in number.
- (2) Overwhelmingly, where the speed exceeded 100km/h it only exceeded it by less than 5 km/h, and often it was only less than 2 km/h. Having regard to the difficulty earlier identified with the speedometer in the Isuzu, as well as the speedometer design rule tolerance of 4-8%, it is more than possible that the Isuzu’s speedometer did not show that he was exceeding 100km/h.
- (3) The occasions on which he was recorded as travelling more than 5km/h over 100km/h were generally only for one second at a time, and at most for only a few seconds.
Vice President Hatcher found that the dismissal was “harsh and unjust”.
“[The employee] was not notified of the reason for his dismissal prior to being informed of his dismissal, and accordingly was not given an opportunity to respond. He was denied procedural fairness” he said.
“The dead kangaroo incident was one of the matters motivating the dismissal, and [the employee] was denied the chance to demonstrate that [the employer’s] analysis of the time and place of this incident, and the applicable speed limit, was wrong.
“[The employee] may not have been dismissed at all if he had been able to demonstrate that he was not speeding at the time of the collision with the dead kangaroo.
“[The employee] was also denied the opportunity to explain, if confirmation was necessary, the he was not aware of any zero tolerance policy concerning speeding.”
Vice President Hatcher found that the employee would have been entitled to $38,192.54 in compensation for lost earnings, but reduced this amount by 20% because of the small business’s “limited financial capacity to cope with unexpected expenses”.
He then reduced this by a further 40% as the employee’s “misconduct in engaging in occasional speeding clearly contributed to a very substantial degree to the decision to dismiss him”.
The employer was ordered to pay the delivery driver $17,415.80 in 28-day instalments “to mitigate any potential cash flow effects” on the small business.