Monday 14th November 2016
Commission slashes worker’s penalty
|In today's Workplace Bulletin:|
- Sacking too harsh for being ‘caught short’
|A garbage truck driver who was sacked after being caught urinating in a CBD laneway by a City of Melbourne inspector, has won his unfair dismissal case and has been reinstated.|
On Sunday 12 June 2016 at 8.30am, the driver was six and a half hours into a 10-hour shift when he was caught urinating by a City of Melbourne Inspector and issued with an infringement notice for public urination.|
At the completion of his shift, the driver called his supervisor and told him what had happened. The City of Melbourne inspector also emailed the driver’s employer, Citywide Service Solutions (Citywide) advising of the incident and expressing his concern.
Citywide held a meeting with the driver, who confessed he had urinated in the laneway and that he had received a fine from the Council. The meeting was adjourned to allow the driver to gather evidence as to why he could not ‘wait’ to find a toilet.
At the follow-up meeting, the driver provided no evidence and Citywide advised him that it took the incident seriously, his actions were against the law and had the potential to cause reputational damage to Citywide. He was then dismissed.
At the Fair Work Commission hearing, Citywide told Commissioner Bisset that the driver would have had numerous opportunities to use a public toilet during his shift and that businesses, including fast food restaurants, which were very accommodating of employees who needed to use the toilet (more than they might be of members of the public who were not customers).
The company added that the laneway was overlooked by residential apartments and the driver could easily have been seen by a resident in an apartment.
The driver argued that at the time he urinated it was urgent and he did not have time to find a toilet.
Commissioner Bisset said he found that there was a valid reason for the dismissal of the driver. He was also satisfied that the decision to terminate the driver’s employment was not made until after the driver was given adequate opportunity to respond.
In determining whether the decision to sack the driver was harsh, Commissioner Bisset commented that the driver had testified that his life had been difficult since he was dismissed; he had not found other work and the jobs he had applied for had been for considerably less pay. Also, he had taken out a bank loan to meet his day-to-day living expenses.
He added that the driver had not tried to hide the incident and had apologised to Citywide and shown contrition.
“In the circumstances before me I am satisfied that the termination of [the driver’s] employment was harsh in that it was disproportionate to the gravity of the misconduct and for the consequences on [the driver].
“I accept that urinating in a public place is not acceptable and, without sound medical reasons as to why it could not be avoided, is never acceptable,” the Commissioner said.
“I have balanced this against the fact that [the driver] reported the incident as soon as his shift ended, that he has apologised on a number of occasions to Citywide and his dismissal has had a range of personal consequences for him in circumstances where he has a dependent wife and two small children.
“For these reasons I am satisfied that the termination of his employment was harsh. I am satisfied that [the driver] has been unfairly dismissed,” said Commissioner Bisset.
The Commissioner ordered that the driver be reinstated to Citywide in the position he held previously and that his period of continuous service with Citywide should be maintained.
Commissioner Bisset also commented that there had been many (perhaps too many) decisions of the Commission where an employee has had his employment terminated for urinating other than in the toilet.
Punishment fits the crime
Would you have sacked one of your workers for a similar crime? Would your investigations have revealed that your actions were harsh and therefore unfair?
Any employer needing help in this area should have their own copy of Managing Misconduct.
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How much time and money could good advice save you?
Keep up the good work,
Editor, Workplace Bulletin
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