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Perspective

Justified dismissal: Aggressive behaviour, bad language and dangerous driving

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The Fair Work Commission (FWC) recently heard a case involving a driver’s aggressive and dangerous driving. The case highlights the responsibility of our employees outside of the workplace.

A bulk oil tanker driver (Mr Young) was involved in a traffic-related incident which was partially captured on dashboard camera (dashcam) footage from another truck owned by Cookers. He was cut off by a passenger vehicle numerous times which resulted in both of them driving erratically then exiting their vehicles for a heated verbal confrontation. The dashcam clearly showed Mr Young swerving aggressively into the passenger’s lane twice.

Mr Young phoned his manager to report the incident in particularly colourful language. His manager advised him he was in the car with his family and asked that he stop swearing. Mr Young continued swearing profusely. He also made admissions of his own threatening and dangerous driving during the phone call, including that he “nearly hit an innocent cyclist”, “cut the driver off out of spite” and “wanted to smash his face in and kill him”.

Following investigation, he was dismissed for gross misconduct. The FWC rejected Mr Young’s unfair dismissal claim based on his aggressive and dangerous conduct during the incident and his use of inappropriate language when reporting the incident to his manager.

See Young v Cookers Bulk Oil Systems Pty Ltd [2020] FWC 4551

Lessons

  1. When a person is at work how they behave to third parties (not clients or employees) is still relevant where they breach safety law. Remember all employees must exercise reasonable care to prevent injury to others under safety law. At common law they must always act in the best interest of the business. Mr Young’s behaviour in this case created an imminent risk to health and safety of another person and the reputation of Cookers (see definition of serious misconduct FWR 1.07).
  2. When considering what (if any) disciplinary action should be taken against an employee for swearing, it is important to consider the context. There is a difference between occasionally swearing and swearing offensively in front of their parties in breach of a direction to cease. There is also a difference between swearing to describe or express frustration, and swearing in a intimidating or threatening manner. Even if there is an culture of swearing in the workplace, the latter would still justify disciplinary action.

Written by Nes Demir

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Our team is here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Andrew Douglas.

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