Dismissal for not loading freight upheld at FWC

A Tasmanian driver’s attempt to avoid a drug test might have worked, except for one detail


A former truck driver with Tasmanian Freight Services has lost his unfair dismissal claim against the company.

The Fair Work Commission (FWC) has ruled the business was within its rights to dismiss Shane Adams for refusing to follow legitimate directions, but the transgression that sealed his fate was not what the company might have expected.

Deputy president Wells heard evidence that Adams had hoped to avoid driving a journey to a specific mine site in the west of Tasmania.

Devonport operations manager Adam Emery told the FWC he believed Adams wanted to avoid a compulsory drug test on that site.

He indicated Smith had told him that if he had to drive to the mine, he wouldn’t have a job.

Emery did not change the roster, and ordered Smith to load the required freight on the day before the journey was scheduled in April.

The FWC heard that Smith was seen taking his personal belongings from the truck, and told a colleague he was likely to lose his job the next day.

He did not load the freight that afternoon, and did not turn up to drive the journey on the following day.

Instead, Smith called in sick, and obtained a medical certificate that noted he was unfit to work that day.

He returned to work a few days after his scheduled trip to the mine, and made some local deliveries before Emery and operations manager Robert Dart approached him to formally terminate his employment.

Wells accepted that the medical certificate – which was not challenged by Tasmanian Freight Services – precluded Smith from duties on the two days that he did not attend work.

The chance that he may have failed a drug test was also not relied up on in her decision.  

However, Wells says Smith’s failure to load the freight on the previous day was a sackable offence in itself.

"I am satisfied on the evidence at hearing that the loading of freight was part of the employment of Mr Adams as a truck driver, and that any instruction for him to do so would be lawful and reasonable," she says.

"I have determined [this] as serious misconduct justifying a valid reason for dismissal which, after considering all the circumstances, was not harsh, unjust or unreasonable."


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