Crane Driver Who Shut Down Crane and Left Building Site Without Telling Anyone Loses Unfair Dismissal Claim
An crane driver sacked from his job on a 39-storey residential development in Adelaide has lost his unfair dismissal claim after the Fair Work Commission (FWC) agreed with his employer’s submission that his conduct in shutting down the crane and leaving the site at noon without telling anyone was the equivalent of a ‘two fingered salute’ to the employer.
What happened?
The crane driver was dismissed on 10 July 2019 on the ground that his conduct was wilful and/or deliberate and inconsistent with the continuation of his contract. The employer contended that the conduct included numerous allegations of the crane driver refusing to perform ‘lifts’ without reason, failing to work reasonable overtime and leaving the site without reason. The incident which led to the dismissal occurred on 6 July 2019 when the crane driver shut down the crane and left the site at noon without telling anyone or seeking permission.
Evidence before the FWC
The crane driver gave evidence that guidelines stipulated a 72 km/h wind gust limit for the crane on the site. But he did not have a memory of any of the specific occasions when he decided that the crane would not operate due to wind gusts. Commissioner Platt of the FWC observed that it appeared the crane driver ‘unilaterally determined when the crane would be operated’. Evidence provided by the crane driver from the Bureau of Meteorology detailing windspeeds for the dates in question failed to establish that the windspeed exceeded 72 km/h. The crane driver also had no recollection of his conduct on 6 July 2019 which led to the dismissal.
A former colleague of the crane driver told the FWC in his evidence that if the weather conditions prevented work, the correct procedure was to wait for four hours to see if the conditions changed, and only then to leave the site. A witness for the company gave evidence that it was his view that the crane driver was deliberately conducting himself in a manner which led to a loss of site efficiency, including refusing to lift form tables if the wind was over 20 km/hr, leaving the site on Fridays at 3.30 pm and not undertaking lifts after 4.30 pm.
The crane driver submitted to the FWC that his conduct did not amount to serious misconduct and there was no valid reason for his dismissal. He said he was not afforded procedural fairness and the company’s failure to pay him notice meant that his dismissal was harsh, unjust or unreasonable. The employer submitted the conduct was a valid reason for dismissal and that it constituted serious and wilful misconduct such that dismissal without notice was justified.
What the FWC found
Commissioner Platt found the crane driver’s evidence unconvincing. He said the crane driver was unable to prove that the crane would be unsafe to operate. That the crane driver had no recollection about the events of 6 July 2019 meant that the Commissioner preferred the evidence of the other witnesses as to the events that day. The Commissioner agreed with the company’s description of the crane driver’s conduct on 6 July as representing a ‘two fingered salute’ to the company. The conduct on that day was in contravention of the crane driver’s employment obligations and a valid reason for the dismissal. It was wilful or deliberate behaviour which was inconsistent with the continuation of the contract of employment and the summary dismissal of the crane driver was appropriate, the Commissioner concluded.