Archive: Dec 24, 2021, 12:00 AM

Dismissal of truck driver for poor performance found not to be harsh, oppressive, or unfair

The Commission has dismissed a bus driver's application for unfair dismissal, finding that the employer provided reasonable opportunity for the driver to improve following warnings of poor performance.

Background

The applicant was employed by the respondent as a casual bus driver working six to seven days each week. He worked from October 2020 until 7 June 2021. On 7 June 2021, the applicant returned late to the bus depot from the job.

Contentions

The applicant submits that he was unfairly dismissed immediately on 7 June 2021 for returning late to the bus depot

The respondent submitted that it did not dismiss the applicant. Rather, that they told the applicant on this day ‘they were not sure that [they] had any work that he was able to do’ within the respondent’s business, due to repeated incidents of poor performance.

The respondent further submitted that they had provided verbal warnings and a written warnings to the applicant regarding incidents that included speaking on the phone while driving; wearing inappropriate footwear; and for failing to escort passengers as directed. The respondent indicated that it had tried to find him other work in the business that he could do but that they exhausted all their options and did not have any work that he could do. The respondent submitted that, if it did dismiss the applicant, his dismissal was not unfair because of his poor performance.

Findings

The Commission considered the evidence of both parties. The Commission found that the evidence from witnesses called by the respondent was preferred, and that they presented as truthful and reliable witnesses.  On the other hand, the Commission found that the applicant in his evidence was not forthcoming; did not answer questions put to him; and that much of the evidence was implausible.

The Commission found that the evidence showed that there were many instances of poor performance, and that warnings were given that indicated continuation of such instances could lead to possible separation of employment. The Commission considered that the respondent gave the applicant a reasonable opportunity to improve his performance, but that this did not improve to the standard reasonably expected of an employee in his role. 

The Commission considered that the respondent did not dismiss the applicant in such a way that was so harsh, oppressive, or unfair that it amounted to an abuse of that right and dismissed the application. 

The decision can be read here.