EMPLOYERS MUST FOLLOW DISCIPLINARY PROCESSES: EMPLOYEE GETS RE-INSTATED
October 13, 2022A recent case saw a Melbourne tram driver reinstated after the Fair Work Commission found his employer, Yarra Trams hadn’t followed the correct disciplinary processes when terminating his employment.
The tram driver, Mr. Gregory Bass, was a loyal employee for eleven years before being sacked for two incidents, ten months apart, that he put down to playful behaviour with a colleague he had a close working relationship with.
Two days after the second incident occurred where he raised his knee to his colleague’s groin, he received a letter of suspension for misconduct from his team manager, pending investigation. The letter did not provide information on what the alleged misconduct was, where it took place or who made the complaint. After a few meetings with the manager, he received a show cause letter, which stated the manager had previously informed him that this type of behaviour could end in his termination. The tram driver was eventually dismissed even after responding to the letter with a sincere apology and promise not to act in such a way again.
In court Mr. Bass submitted that he was never verbally warned such conduct could result in losing his job, rather it was a friendly discussion between himself and his manager, and there was no mention of disciplinary action. He said he was familiar with the Yarra Trams Enterprise agreement and that verbal warnings were part of the formal disciplinary process that also allowed employees the right to a representative.
Deputy President Alan Coleman from the FWC found the driver’s version of events more believable and while acknowledging his behaviour was inappropriate it didn’t fall under misconduct. He considered the two incidents to be “very different’’, rather than ‘’substantially similar”, as the team manager described them in the show cause letter. Although in both incidents the driver raised his knee, the first involved moderate force while the second incident involved no force and no contact. He found the dismissal “harsh’’ and also emphasized the company’s failure to provide the driver with clear expectations of what behaviour is acceptable and what isn’t, saying “If the manager could not clearly draw the line, how could the tram driver be expected to do so?’’
The Deputy President also found that Yarra Trams did not comply with the disciplinary process set out in the Yarra Trams Enterprise Agreement 2019- Operations which states the following;
where there is clear evidence of misconduct which justifies action, the following procedures shall apply:
(a) Interview with verbal warning;
(b) Written advise and instruct;
(c) Written warning;
(d) Final written warning
Deputy President Coleman reinstated the tram driver and awarded him $29,000 in lost wages after deciding the dismissal was unfair due to the company’s non- compliance on disciplinary process which deprived him of his procedural rights and its lack of reason for terminating his employment.
The outcome of this case shows the importance of employers following the correct procedures when disciplining employees. Many employees are unaware of their workplace rights, and dealing with any kind of disciplinary action from their employers can be stressful and confusing. It is our job as experts in Employment Law to guide people through any workplace matters and disputes: For more detail see: Gregory Brass v KDR Victoria Pty Ltd t/a Yarra Trams [2022] FWC 2527 (21 September 2022)
