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Get your facts strange or risk unfair dismissal

A large rail industry employer has been ordered to reinstate a train driver after he was dismissed for what the employer deemed were breaches of safety protocols.

The first incident relied upon for the termination was the employee leaving his co-driver behind after she disembarked the locomotive for a toilet break. The co-driver was found to have told the employee that she was going to the toilet.  However, the employee wrongly assumed that she was using the on-board toilet facilities.  He then recommenced the trip not realising that she was not on board.

The other incident relied upon was that, during the same trip, the employee had exceeded the speed limit on 855 occasions.

In relation to the toilet break incident, the Fair Work Commission noted a conflict between the evidence of the co-driver and what was recorded in the investigation report relied upon by the Employer. In the report, it was recorded that the co-driver had said to the employee, ‘I am going to the toilet, don’t leave without me’.  However, the FWC found that the words ‘don’t leave without me’ were never said by the co-driver in her interview.  The FWC said that the implications of this were critical given it created the negative impression that the train driver knew the co-driver left the train.

In terms of the speeding offence, the FWC found that the employer’s allegation ‘plainly overstated the instances of speeding, thereby exaggerating the applicant’s culpability’. It was found that the speed data log was such that it measured the speed over a few seconds repetitively, thereby recording the same speed over and over.  Despite the exaggeration, it was found that the allegation was largely made out.  However, the employer’s failure to terminate the co-driver for the same reason, made the termination of the train driver for speeding unreasonable in the circumstances.

The employee was subsequently reinstated.

This case is a good lesson for all employers to ensure that they can substantiate the evidence upon which a decision to terminate an employee is based.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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