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.