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Enforcing CoR policies gets commission’s blessing

May 17, 2018

The Fair Work Commission (FWC) last year rejected a truck driver’s claim for unfair dismissal, finding that his employer acted reasonably in terminating his employment for serious misconduct involving Heavy Vehicle National Law (HVNL) breaches.

The driver had deliberately driven a B-triple vehicle in excess of the 90kmh speed limit and on a route that was not approved for such vehicles. Among the reasons the driver gave for the conduct were:

  • he wished to conclude his driving before he exceeded his daily hours’ limit; and
  • he did not have his medication or bedding, which would allow him to sleep in the vehicle.

While no incident occurred, the FWC found that the conduct risked the safety of the driver, other road users, road infrastructure and the employer’s HVNL compliance.

Serious breach

The FWC upheld the employer’s decision that the seriousness of the breach outweighed considerations including the employee’s age, length of service, unblemished work history and his reasons for breaching.

This case demonstrates that it can be permissible and appropriate to dismiss an employee if they have seriously breached the HVNL. It highlights the importance of employers having clear policies setting out in their Chain of Responsibility (CoR) expectations and the potential consequences for breach.

Employers must ensure that they train employees in, and inform them of, their CoR policies. Employers also need to have appropriate procedures in place that they must follow to ensure the disciplinary process is fair and just.

It is essential that employers enforce their policies to the letter. Any relaxed application of CoR policies may show a court that the employer is not actually taking any steps, let alone all reasonably practicable steps, to avoid breaches of the CoR laws, including through employee disciplinary measures.

In CoR Adviser – the monthly newsletter written in plain English by the transport law experts at Holding Redlich – you’ll find comprehensive explanations of CoR laws, how they apply to your business, case law examples (like this one), hints and tips to help you avoid costly penalties for non-compliance.

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