In the recent decision in Chris Birt v K&S Freighters
Pty Limited, Deputy President Swan found it unfair to
terminate a truck driver who had an accident and refused to pay for
the truck repairs.
The applicant was a 49 year old truck driver when he commenced
employment with the respondent in May 2008. He became ill with
cancer in early 2009 and took some time off work on sick leave. The
applicant returned to the workplace in April 2009. On 25 August
2009, the applicant was involved in an accident whilst driving his
truck. He hit a fence when performing a u-turn at a loading
The respondent had a policy that employees pay for damages to
vehicles when, in the employer's view, the damage was caused by
the driver's negligence. The applicant denied knowledge of this
policy, prior to his accident.
The respondent requested that the applicant pay $3,100 plus GST
for a new bumper bar, and proposed to deduct $100 per week from his
pay, in that regard.
The applicant refused to authorise the deduction and was
dismissed on 9 September 2009.
It was held that an accidental error occurred whilst the
applicant was performing his duties. A high level of skill and
concentration is required by truck drivers, and accidents which are
not the result of negligence, in the true sense of the word, would
from time to time occur. That the applicant did not respond
positively to the demands of the respondent in respect of repairs
to the truck did not justify his termination, or constitute
misconduct so as to reduce compensation. By the time of hearing,
the applicant had mitigated his loss by obtaining alternative
casual and then permanent employment. However, 20 weeks
remuneration was ordered to be paid to the applicant by the
respondent, equalling $21,000.
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