Fair Work Australia dismissed a truck driver's unfair
dismissal claim after finding that termination of his employment
for falsifying his fatigue management records was not unfair.
The employee had worked for Linfox as a truck driver for 10
years. In July 2010 the employee continued to drive after he had
reached the maximum number of hours permitted under his fatigue
management scheme. In a further breach of the fatigue management
scheme the employee immediately began unloading his vehicle. He
attempted to conceal the breach by making false time entries in his
In a meeting requested by Linfox the employee admitted that he
had deliberately made false entries on his worksheet. The employee
was stood down and another meeting was held on 7 July 2010. At the
7 July meeting his employment was terminated with immediate
On behalf of the employee the Transport Workers Union argued
that the dismissal was unfair because:
the conduct was caused by a momentary lapse of judgment;
the employee gained no financial benefit from falsifying the
the employee had a long history of employment and a relatively
Fair Work Australia considered that:
the employee was aware of the importance of accurately
recording information for driver fatigue management and that he had
deliberately falsified his worksheet in an attempt to conceal his
a deliberate falsification of records in the absence of an
acceptable excuse justifies summary dismissal;
a breach of fatigue management legislation may have harsh
consequences for public safety and the employer.
Fair Work Australia was critical of Linfox for preparing the
termination letter before the 7 July meeting as this did not allow
the employee an opportunity to justify his misconduct. However,
Fair Work Australia found that this procedural error did not cause
any injustice to the employee, as no subsequent justification for
the falsification was found.
While the employee's application was dismissed, Fair
Work Australia placed considerable weight on the fact that he
attempted to conceal his breach and then later admitted that it was
a deliberate act. This decision may have been different if the
employee had not deliberately attempted to cover up his breach.
For information or advice please contact either Peter Dwyer on
07 3231 2478 or Annie Smeaton on 07 3231 2946.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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