In Millard v K & S Freighters Pty Ltd
 FWC 105, the Fair Work Commission found that an
employer's decision to dismiss an employee on the basis of
circumstantial evidence was harsh and unreasonable.
A driver was dismissed by his employer for serious misconduct
for tampering with an internal driver-facing camera by spraying a
substance on the lens of the camera in his vehicle.
The employer 'show caused' the driver by showing him the
tampered camera and telling him the obscuring substance was
believed to be deodorant. The employer also noted that the driver
had previously raised privacy concerns when the camera was first
installed in the vehicle.
In turn, the driver:
denied any involvement and pointed out that, on the day in
question, the vehicle was left unattended and he remained out of
the cabin for substantial periods of time;
said he did not bring deodorant to work; and
claimed it was 'common knowledge' amongst the drivers
that the placement of the camera on the windscreen meant that it
could be covered by simply opening the vehicle's sun visor and
that if he wanted to cover the lens he could have done so in this
After a further meeting (during which he continued to maintain
his innocence), the driver was dismissed on the grounds of serious
The driver made an application in the Commission alleging his
dismissal was harsh, unjust or unreasonable. The employer argued
that the driver-facing cameras were a necessary safety feature to
ensure compliance with appropriate health and safety standards and
the safe transportation of clients' products. The employer
submitted that its decision to dismiss the driver was due to:
the employer being satisfied that the driver had deliberately
defaced the camera;
the driver's previous conduct concerning repeated disregard
for health and safety requirements; and
the driver's assertion that someone else may have tampered
with the camera being 'implausible' as he would have known
if something had been sprayed in the confined space of the
The Commission held that the decision to dismiss the driver on
grounds of serious misconduct was based on circumstantial evidence
and that much more could have been done by the employer to validate
or confirm the evidence that formed the basis of the decision to
dismiss the driver. Relevantly, the Commission said that no
analysis was made of the substance on the camera, no-one in the
workshop was asked how the camera lens was cleaned after the
incident or how difficult this was, and at the time the allegation
was first raised with the driver, the supervisor refused the
driver's offer to search his bag for evidence of deodorant.
The Commission was not satisfied that on an objective analysis
of the facts, it could be concluded that the driver was responsible
for tampering with the camera. Further, the fact that the camera
was undamaged and able to continue functioning in a proper manner
meant it was difficult to justify dismissal for serious
The Commission held that the driver's dismissal was 'at
least harsh and unreasonable' and ordered the employer to pay
$46,151 as compensation to the employee.
Lessons for transport operators
While 'safety breaches' may form a valid reason for
dismissal, a proper and objective investigation of the incident
should be undertaken.
Circumstantial evidence (without any further inquiries or
investigations being undertaken) is unlikely to be sufficient to
Safety breaches by drivers may not always be sufficient to
justify termination for 'serious misconduct'.
Cooper Grace Ward is a leading Australian law firm based in
This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
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