Employee terminated following vehicle pursuit incident and integrity breach concerns
The Fair Work Commission (FWC) recently examined an unfair dismissal claim involving a surveillance operative who argued his termination was unjust following a vehicle pursuit incident during an anti-corruption operation.
The case arose when the worker followed a member of the public who had left the scene of a minor collision with a colleague's vehicle, leading to allegations of dangerous driving and subsequent dishonesty about the incident.
The worker argued his dismissal was unfair because he was acting to protect a colleague's safety and welfare after she reported being involved in a collision during the surveillance operation.
He maintained that his pursuit of the departing vehicle was instinctive and justified, and that he had followed instructions from his supervisor to track the vehicle that had damaged an organisational asset.
The employer contested the worker's claim, arguing the dismissal was justified due to serious misconduct involving dangerous driving that endangered public safety and subsequent dishonesty in official correspondence.
Collision incident triggers pursuit
The employment relationship involved a surveillance operative with almost 15 years of service, having commenced employment with a predecessor organisation in 2010 before transferring when the current employer absorbed that agency in 2013.
On 8 May 2024, several surveillance operatives, including the worker and his supervisor, were engaged in a surveillance operation concerning a person of interest.
A colleague reported at approximately 8:30 pm that a member of the public had reversed and collided with their parked vehicle.
Following the collision report, the worker drove to the location to establish that his colleague was unhurt and safe.
The supervisor also went past the collision scene, observed the colleague standing at the rear of her vehicle, and continued driving without stopping, as the worker was already providing observation coverage.
Vehicle pursuit escalates
After an initial exchange between the colleague and the driver who had collided with their vehicle, they went back to the car to retrieve their driver's licence and paperwork to exchange details.
When they looked up, they saw the other vehicle leaving the car park fairly quickly, which was also observed by the worker, who then turned on his lights to obtain the vehicle registration details.
The worker immediately followed the departing vehicle eastward along the main road for approximately 250 metres before executing what he later admitted was an illegal right-hand turn into a side street while pursuing the other vehicle.
This occurred before he received what he claimed was an instruction from his supervisor to follow the car, explaining his decision as instinctive and believing he would face criticism for allowing someone who damaged an organisational vehicle to simply drive away.
The supervisor's evidence indicated that when he asked whether operatives could follow the vehicle to obtain an address, he observed both cars travelling at an estimated 70 kilometres per hour in a 50-kilometre zone, with the worker's vehicle only one car length behind the pursued vehicle.
Multiple colleagues later reported hearing the worker state over the radio that he had "gone hard" or was "on him pretty hard" when describing his pursuit of the other vehicle.
Dangerous driving creates public safety risks
The FWC found the worker's conduct constituted serious safety violations, noting: "The execution of an illegal right hand turn in a darkened, quiet, and narrow suburban street has the clear potential to place members of the public, including unlit pedestrians, at risk."
The Commission rejected the worker's contention that his illegal manoeuvre was merely a misjudgement, finding his resistance to accepting that road rule breaches were inherently unsafe showed an impressive lack of insight.
The worker's pursuit continued into the side street where his supervisor was parked, with the supervisor observing the close pursuit before the worker lost sight of the other vehicle.
Shortly afterwards, colleagues reported seeing the pursued vehicle driving back along the main road at speed, overtaking another car on the wrong side of the road before running a red light at a major intersection.
The Commission determined: "The behaviour of the [other] driver was in my view consistent with a belief he was being followed and seeking to flee the scene as quickly as possible. This inferentially supports that [the worker] had at one point been closely pursuing [the vehicle]."
The FWC found this conduct was contrary to road safety rules, organisational policies, and posed imminent risk to public health and safety.
Official correspondence conceals details
Following the incident, the worker filed a bullying complaint against his supervisor on 15 May 2024, which included a detailed description of the 8 May events.
However, the Commission found this account was deliberately misleading, omitting crucial details about his pursuit of the other vehicle and the illegal right-hand turn he executed during the chase.
In his official correspondence, the worker stated: "At no time did I chase this vehicle as my priority was the welfare of my co-worker."
The FWC found this representation was "patently false and misleading," noting the worker had left out critical details that would have revealed the true nature of his conduct during the incident.
The Commission determined: "It was clear that by including the detail of the 8 May 2024 incident in the email... [the worker] took the opportunity of putting his side of the story. However, in putting his side of the story, [the worker] left out critical details of the incident and plainly misrepresented what had occurred."
The FWC found this dishonesty was foreshadowed by the worker's earlier statement to his supervisor that he would simply deny the incident happened and that it was "his word against" the supervisor's.
Investigation process reveals integrity concerns
The worker was subsequently stood down on 30 May 2024 pending completion of an independent investigation into the events.
He was formally notified of allegations on 17 September 2024, which included driving in a manner that placed team members and the public at risk, and making false statements in official correspondence contrary to the public service code of conduct.
Following an interview with external investigators on 20 November 2024, the investigation outcome was communicated on 21 January 2025. The employer stated:
"Your conduct was unsafe and demonstrated that you were unable to exercise sound judgement and decision-making in undertaking your duties... As a staff member of [the organisation], and in particular as a surveillance operative, there is a heightened expectation and requirement for good judgment, honesty, trustworthiness and maturity."
The worker was provided with an opportunity to respond to the findings and proposed termination by 5 February 2025, which he did on 12 February 2025.
However, his employment termination was confirmed on 27 March 2025, with the employer determining that the misconduct warranted dismissal given the critical importance of trust and integrity in surveillance operations.
FWC weighs misconduct against service record
The FWC acknowledged several factors weighing in the worker's favour, including his almost 15 years of service, blemish-free disciplinary record, and positive regard from colleagues who described him as a good, experienced operative whose performance was "up there with the best."
The Commission noted he had never been subject to previous disciplinary action, and his supervisor held no concerns about his performance prior to the incident.
However, the Commission found these factors insufficient to outweigh the gravity of the misconduct. The FWC stated:
"The weight I attach to those matters is not however sufficient to displace the gravity of the misconduct and what was a procedurally fair process."
The Commission emphasised that surveillance operatives must exercise sound judgement in stressful, demanding situations and often work independently without direct supervision.
The FWC also considered the worker's argument about differential treatment compared to other employees who had received traffic infringements, but found no evidence of comparable circumstances. The Commission noted:
"The [worker] made a conscious decision to follow another vehicle, drove on the wrong side of the road to execute an illegal right hand turn on a darkened street, and then pursued the other vehicle in an unsafe manner. These circumstances are qualitatively different in terms of the gravity of the misconduct."
FWC upholds dismissal
The Commission found the dismissal process was procedurally fair, noting the worker was properly notified of allegations, given opportunities to respond during investigation interviews, and provided with a final chance to address the proposed termination.
The FWC determined: "I am satisfied that [the worker] was provided with an opportunity to respond to the reasons relied on by [the employer] in dismissing him."
The Commission concluded that both grounds of misconduct - the dangerous driving and subsequent dishonesty - constituted valid reasons for dismissal. The FWC stated:
"Whether considered separately or together the conduct establishes a valid reason for [the worker's] dismissal and given the gravity of the conduct, this weighs strongly in favour of a finding that the dismissal was neither harsh, unjust, or unreasonable."
The FWC ultimately dismissed the application, finding: "Having considered each of the matters specified in s 387 of the Act, I am satisfied that the dismissal of [the worker] was not harsh, unjust, or unreasonable."
The Commission emphasised that for an anti-corruption agency that expects high standards of integrity, the worker's dishonesty was "utterly inconsistent" with organisational values, including holding themselves to the same high standards expected of others.
