The worker was dismissed only after a secondary investigation
In a recent decision, the Fair Work Commission considered a Sydney Trains worker dismissed after accidentally reversing a company vehicle into a power pole. One morning in August 2019, the applicant, a plant mechanic, worked alongside a colleague and an apprentice on machines inside the rail corridor at Wollongong Station. The applicant had driven down an access road to reach the worksite.
Upon finishing their work, the applicant and apprentice began the journey back. The applicant stated the access road ended in a dead-end and, with no room to make a three-point turn, he had no choice but to reverse towards the entrance. A service box containing work tools was affixed to the vehicle, which impaired the applicant’s rear vision. The applicant reversed approximately 200m before colliding with a power pole. After the collision, the applicant immediately checked on the apprentice, who was sitting in the passenger seat, before assessing the damages and reporting the incident to his team leader.
Following a workplace investigation and a formal interview, the applicant undertook a driver training course and returned to his role. However, eight months later, the applicant was notified of misconduct allegations related to the accident. The respondent stated that he provided false and/or misleading information during the initial investigation when he stated that he was driving at 10km/h immediately before the collision.
The applicant maintained that, to the best of his recollection, he never stated with certainty that he was travelling at 10km/h, as he was not looking at the speedometer and could not be sure of the speed at which he was travelling. Nevertheless, the applicant was dismissed from his employment almost 12 months after the initial workplace investigation concluded. The Commission was satisfied that a valid reason was present for the applicant’s dismissal as, at the time of the incident, he did not demonstrate an appropriate level of driving diligence.
However, it also found that it was “grossly unfair to revisit the event and arrive at a different outcome nearly 12 months later when essentially the same facts and circumstances relied upon to justify the applicant’s dismissal existed at the time of the event”.
The Commission found that this second investigation rendered the applicant’s dismissal unjust and unreasonable and ordered that the applicant be reinstated.
Key Takeaways:
- Reopening a workplace investigation to arrive at a different conclusion may give rise to an unfair dismissal
