The Fair Work Commission has reinstated a portable toilet delivery driver who was sacked for a safety breach. This is despite the employer claiming it no longer had trust and confidence in him, following an incident where a portaloo that he was picking up came too close to live tram wires.

Early last year, the company dismissed the driver after he stopped his truck on the then new Gold Coast Light Rail line.  At some point during the removal of the toilet, a tram approached and signalled its presence by flashing its lights and sounding its horn. The worker, on seeing the tram, hastened his loading then left the site.

After leaving the site, he was informed by a lead contractor representative that the site was live and his presence had resulted in the zone being isolated from power.

The driver claimed a genuine belief that the track and wires were not live and that it was safe to park his truck on the track while picking up the damaged portable toilet.  This was backed up by video evidence that indicated “no visible hazard zone signs, tape, bunting” to show that the site was live and dangerous.

A company HR manager also indicated that the dismissed driver’s group had not been “toolboxed” about when the line would go “live”.  He also conceded that the work order given to the driver did not contain a safety warning, whereas work orders issued after the driver’s incident incorporated such a warning.

The Commissioner indicated that the driver’s behaviour didn’t constitute serious misconduct, because there was no element of it being wilful, deliberate, reckless or even negligent. She rejected the employer’s argument that the employee should not be reinstated because it had lost trust and confidence in him.

She said the driver “struck me as an honest and very willing worker, albeit one who had, in his own words and with hindsight, done the wrong thing, an admission against interest that reinforces my conclusion”.

Key elements of performance management include regularity, consistency and setting meaningful expectations.  The Commissioner concluded that the driver had not received the most up-to-date safety training before the incident.  Furthermore, the driver served the company for almost 12 years without any criticism of his work performance.  As such, the FWC’s decision drew on precedent around the harshness of dismissing workers with unblemished records.

Furthermore, a critical element of managing performance procedural fairness – allowing the employee a right of reply and genuinely considering their side of the story – was found to be lacking in this case.


iHR Australia’s Managing Everyday Performance provides techniques to conduct effective everyday performance conversations and give feedback to staff that is fair, accurate and consistent with the expectations of workplace law.  It also teaches the importance of fairness and accuracy when managing performance and maintaining consistency between all elements of the performance management process, as well as establishing possible causes of performance issues, appropriate resolution activities and legal considerations and procedural fairness.


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