Mark Branagan and Sophie Donaghey

Pedal to the Flaw! Roo accident driver bounces back

Mark Branagan and Sophie Donaghey

2 July 2019

Employment Disputes

Truckie wins unfair dismissal after flawed workplace investigation.

A NSW truck driver who was fired after hitting a dead kangaroo and for allegedly speeding was recently awarded $17,416 after the Fair Work Commission (FWC) found he was denied procedural fairness during the investigation process: Rodney Wilkins v Green Gables Express Pty Ltd [2019] FWC 2892.

Background

Mr Wilkins hit the dead kangaroo just before dawn on a country road causing substantial damage to his Isuzu truck. Mr Wilkins told his employer that he stopped immediately after the impact but could not see any damage. He later discovered significant damage underneath the truck that required repairs.

Investigation and dismissal

Following the incident, the employer examined the GPS tracking data for the truck to ascertain why Mr Wilkins had not been able to avoid the roadkill. The employer concluded that Mr Wilkins must have been speeding (travelling 98km/h in an 80km/h zone) when he struck the kangaroo, and that he failed to exercise due diligence as he did not stop the truck immediately after the impact to determine whether it was safe to continue driving.

The employer then undertook a wider review of the GPS records for the previous 12 months. Following this further investigation, the employer concluded that:

  • Mr Wilkins disregarded road rules by speeding every day along his regular trucking route;
  • Mr Wilkins passed 38 roadside speed signs along his regular trucking route, but regularly chose to ignore them;
  • Mr Wilkins was speeding by significant amounts on every shift, and on occasion had exceeded the speed limit by up to 30km/h; and
  • Mr Wilkins was speeding in 50km/h, 60km/h, 80km/h and 100km/h zones.

While that information would normally provide solid material for disciplinary action, nobody told Mr Wilkins about the investigations, nor was he given an opportunity to respond to the findings.

Mr Wilkins was dismissed on the grounds that he had engaged in excessive speeding and had not complied with the employer’s ‘zero tolerance’ speeding policy.

Decision

Vice President Hatcher determined there was a real possibility that the GPS data was inaccurate. The GPS data could not, for example, identify the time or place of the collision with the kangaroo, nor could it establish that Mr Wilkins engaged in sustained speeding. Mr Wilkins was denied the chance to demonstrate that the employer’s analysis of the time and place of the kangaroo incident, and the applicable speed limit, were wrong. Mr Wilkins was also denied the chance to inform the employer that he was not aware of the employer’s zero tolerance speeding policy.

The FWC also found that the proven instances of speeding were generally brief and few in number, and may have had a reasonable explanation. Accordingly, firing Mr Wilkins on this basis was “disproportionate to the conduct”. The FWC also determined there could have been valid safety reasons for not stopping the truck immediately after the incident to check for damage.

VP Hatcher ultimately found that the dismissal was unjust because Mr Wilkins was denied procedural fairness. This was not merely a technical failure, but one of substance. Mr Wilkins was not notified of the reason for his dismissal prior to being informed of his dismissal, and accordingly was not given an opportunity to respond.