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Excavator Drivers to be compensated for unfair sacking despite history of “foul tirades”

The recent decision from the Fair Work Commission is a timely reminder of the importance of following the correct procedure to avoid claims for unfair dismissal.

Commissioner Jennifer Hunt awarded compensation to two excavators after their sacking was found to have been procedurally unfair.

Summary of the findings:

  1. Commissioner Hunt found in favour of the two excavators but she also maintained that both excavators’ behaviour in the workplace was unacceptable.
  2. While Commissioner Hunt found that the excavators “were so incredibly difficult to work with”, the employer could not dismiss them without notice.
  3. The excavators were dismissed February this year after a complaint was made by a trainee that he was bullied, belittled, and harassed by both excavators .
  4. The trainee said he “had never been so belittled or spoken to as rudely in his life as he was treated by the [excavator operators] during the course of that day”.
  5. Commissioner Hunt found that the employer should have still given the excavators substantial notice and that the employer failed to comply with a procedurally fair practice.
  6. Commissioner Hunt concluded that “Whilst I have been critical of each of [excavator operators’] conduct, I have decided against drawing a conclusion that it constituted misconduct …. Accordingly, I find that each of the [excavator operators] were unfairly dismissed.”

Full case: Mrs Carmen-May Olver and Mrs Linda Waldron v Perrotts Cartage Pty. Ltd. T/A Coast Cat Excavations [2019] FWC 4901

Note: The content of this blog post should not be considered legal advice however, if you would like to speak to someone about how the contents of this post, please contact (03) 7019 9200 or Amy Nhan at amy.nhan@aderolaw.com.au.