Honesty and trust are critical to a successful working relationship. The Fair Work Act states that workers should be truthful in all dealings with their employer. Not only does this ensure employees can be trusted to provide accurate and reliable information, but it provides for accuracy of records and the safety of the workplace. This is especially true for any changes to relevant employee licences and qualifications.
So, are employers obliged to continue the employment, or provide alternative duties, if an employee ceases to hold a licence required to perform their duties, and fails to declare it. Does this give an employer safe ground to terminate?
Case study
The Griffith city council employed a worker as a team leader in the country’s traffic facilities. One of the key criteria of the position state that it is essential for the employee to hold an Australian driver’s licence class MR or equivalent.
The Roads and Maritime Services notified the employee of traffic offences he had incurred, and consequently, that his driver’s licence would be suspended for six months. The employee did not inform his employer of the suspension, with the employer only becoming aware through a report it received a few months later.
The employee was called to a meeting with his direct manager, the works manager for maintenance for the council. During the meeting the worker confirmed that he had lost his licence, had not told anyone at work and was unaware that he was required to, and had lost his licence for a period of three months.
The council suspended him with pay pending an investigation. The employee was called for another meeting where the issue of the employee driving a council vehicle around the depot when his licence was suspended was raised. Additionally, the fact that the employee had not notified anyone at the council of the suspension, explaining that ongoing health issues and anxiety were the reason he did not come forward.
The employer stated that the employee had lied in the initial stages of the investigation when asked about the length of his licence suspension, after having failed to declare it was suspended in the first place. With this in mind, the Council concluded that the employee’s conduct amounted to misrepresentation and dishonesty, and that these acts were destructive to the mutual trust between the employer and employee.
The employee was dismissed in writing on the same day, effective immediately and that he would receive five weeks’ pay in lieu of notice. Consequently, the employee filed before the New South Wales’ Industrial Relations Commission, requesting to be reinstated to his employment with back pay.
The Commission’s decision
The Commission said an employer is entitled to honesty from an employee, and vice versa, and that although the employee had been dishonest about the period for which his licence had been suspended, he had not been dishonest about the suspension itself. The Commission also found that the council did not prove what the worker stood to gain by engaging in the dishonesty.
The Commission stated that the misconduct was inconsistent with a person in a supervisory position, being that the employee was a team leader and was required to lead, supervise and coordinate a small crew. However, the objective seriousness of the dishonesty was not sufficient to be considered at the higher end of the scale of misconduct.
With this in mind, it was ruled that the employee’s dismissal was unfair and unreasonable and the council was ordered to reinstate him to his position immediately on the terms and conditions before being dismissed.
Important considerations for employers
There is a risk that any employee terminated following a licence suspension may lodge an unfair dismissal application with the FWC. An employee may succeed in such a claim if the termination was harsh, unjust or unreasonable, which includes the absence of a valid reason for termination.
In circumstances where holding a driving licence is an inherent requirement of the role, termination for licence suspension is a valid reason for termination. But, when coming to a final view about whether a termination is harsh, unjust or unreasonable, the FWC can consider any matters it considers relevant.
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