Gordon O’Hehir v Toll Holdings Limited T/A Toll SPD

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The recent decision of Senior Deputy President Hamberger on 11 January 2012 in the case of Gordon O’Hehir v Toll Holdings Limited T/A Toll SPD provides comfort to employers who wish to terminate employees for a breach of workplace policies. However, employers must ensure that they bring appropriate policies to the attention of all employees and document all warnings to employees and that they give employees a ‘fair go all around’ in the disciplinary and ultimately the termination process.

Mr Gordon O’Hehir (the applicant) lodged an application with FWA seeking an unfair dismissal remedy on 26 June 2011.

Mr O’Hehir commenced employment in June 1985 as a truck driver with Toll. On 20 January 2010 Mr O’Hehir was involved in an incident where substantial damage was caused to a prime mover when the vehicle rolled backwards and struck another trailer. Mr O’Hehir jumped back inside the moving vehicle to apply the brakes. Mr O’Hehir received a written first warning dated 22 January 2010.

Further incidents involving Mr O’Hehir’s driving and “dropped trailers” occurred on 12 February 2010, 8 October 2010 and 29 October 2010. Mr O’Hehir received a written warning from the Company setting out that immediate improvement was required and further instances or errors due to lack of attention and failure to follow procedures would result in disciplinary action.

On 23 February 2011 safety alerts were issued by Toll in relation to two recent incidents where trailers had become detached from the prime movers resulting in a “dropped trailer”. Further to that on 25 February 2011 a Toolbox Meeting was held to discuss the issue of “dropped trailers” and other matters. Mr O’Hehir was present at that meeting.

On 11 July 2011 Mr O’Heir was involved in a further incident of a “dropped trailer”. It was not contested that on 11 July 2011 Mr O’Hehir  did not check whether the trailer was connected to the prime mover prior to the trailer being dropped.

On 12 July 2011 Mr O’Hehir attended a meeting with Toll management  and gave details of the incident the previous day. Mr O’Hehir was told at this meeting that it was a potentially serious matter that could lead to termination. He was further told that no decision would be made that day as the matter was under investigation.

A further meeting took place on 13 July 2011. Mr O’Hehir was given a typed copy of his statement of the previous day to verify. Mr O’Hehir was asked if he had anything further to add to his statement. Mr O’Hehir stated that given the time that had passed he could not remember if he had pulled the pin. It was pointed out to Mr O’Hehir that this was one of the reasons that the drivers were asked to check and to perform a ‘tug test’. It was also brought to Mr O’Hehir’s attention that this was not the first incident he was involved in where a trailer had been ‘dropped’. That had resulted in his being given a first written warning. Toll had received a mechanical report on both the prime mover and trailer involved in the 11 July incident and no mechanical fault had been found. As a result of that and, as Mr O’Hehir had admitted that he did not perform the required checks, Toll terminated his employment.

Fair Work Considerations

Mr O’Hehir was dismissed for failing to check that a trailer was properly fixed to a prime mover prior to driving off resulting in the trailer dropping to the ground. This was not the first incident of that kind that Mr O’Hehir was involved in. An incident in January 2010 resulted in Mr O’Hehir being given a first written warning letter. Mr O’Hehir was involved in further incidents in 2010 that resulted in his receiving a written warning letter that stated that further instances or errors due to lack of attention to detail and/or failure to follow set procedures would result in disciplinary action and may lead to his termination.

Senior Deputy President Hamberger was satisfied that based on Mr O’Hehir’s conduct there was a valid reason for termination, and that he was aware that his conduct could result in his termination.

Having regard to the need to accord a “fair go all round” to both the employer and employee concerned, Senior Deputy President Hamberger was satisfied that the dismissal was not harsh, unjust or unreasonable.

Lessons

In order to improve an employer’s ability to terminate for not following appropriate procedures, it is important to ensure that the employer has appropriate policies dealing with matters such as how safety checks are required to be performed. Employer’s must be in a position to prove that the employee has been made aware of the existence of the policy and has appropriate training to ensure that the employee can comply with the policy.  Employer’s must provide written warnings for all serious performance and conduct issues and ensure that a follow up procedure is implemented and managed.

We can assist in formulating and implenting these proceures.

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