Dead Roo dismissal bites Employer

The Fair Work Commission has awarded a delivery driver over $17,000 in compensation, finding his dismissal for hitting a dead kangaroo whilst allegedly speeding was disproportionate to his conduct and subsequently unfair.

The driver was dismissed in December 2018, in part, for having hit a dead kangaroo the month prior whilst allegedly doing 98km/hr in an 80km/hr zone, causing damage to the truck’s radiator, bull bar and cabin grill. The employer argued the driver had “failed to exercise due diligence by stopping to establish the damage to the vehicle” and “failed to exercise due diligence by stopping to ensure it was safe to drive the vehicle”. Upon examination of the GPS data from the previous 12 months, the employer further claimed the driver had been “speeding on every single day” on his regular route to deliver newspapers, magazines and general freight, in breach of the employer’s “zero tolerance” policy on speeding (which the driver claimed not to be aware of).

Vice President Hatcher considered the GPS data but concluded it was not possible to determine the actual speed limit of any location to know whether, or by how much, a driver may be speeding at a point in time. The Vice President also noted that, in reference to the time at which the driver allegedly hit the dead kangaroo in the 80km/hr zone, the GPS data shows he was consistently driving “well under” 90km/hr, not the 98km/hr claimed by the employer. Furthermore, the Vice President found that the evidence indicated the speedometer in the truck was underestimating its actual speed and concessions were given for the fact that “the Australian design rule for vehicle speedometers provides that they have a tolerance of a minimum of 4% and a maximum of 8% against the actual speed of the vehicle”.

Upon consideration of all the evidence, Vice President Hatcher concluded that, if applying a rule that non-urban, non-motorway roads have a default speed limit of 100km/hr, “in a strict sense, the [truck] was on occasions driven at speeds which exceeded the road speed limit”. Although these instances of speeding provided a valid reason for termination, the Vice President determined the dismissal to be harsh and disproportionate to the conduct, given the “proven speeding was occasional and for brief periods” (at times for just a matter of seconds). The ‘dead kangaroo incident’ was rejected as a valid reason for dismissal, as it was based on incorrect assumptions about time and location, with no firm evidence of speeding, nor did the driver’s refusal to stop necessarily constitute a failure to “exercise due diligence”, with the Vice President finding “no evidence as to whether it was practicable or safe” to immediately pull over and check the truck at the time.

Vice President Hatcher categorized the dismissal as unjust, criticizing the employer for failing to notify the driver the ‘dead kangaroo incident’ was being investigated or allowing him to respond to the results of the investigation. The driver was also “denied the opportunity to explain, if confirmation was necessary, [that] he was not aware of any zero tolerance policy concerning speeding” but the Vice President conceded the employer did not need “any properly-articulated” policy for the driver to know he should not speed.

Having found the driver, who did not seek reinstatement but had been “otherwise a satisfactory employee”, to have been unfairly dismissed, Vice President Hatcher awarded compensation which started at over $60,000. Once deductions were made for various considerations including the viability of the employer’s small transport company; the lack of effort the driver had made to secure other employment and, most significantly, that the driver’s “misconduct in engaging in occasional speeding clearly contributed to a very substantial degree to the decision to dismiss him”, the final compensation amount was determined to be $17,415.80.

Wilkins v Green Gables Express Pty Ltd [2019] FWC 2892 (14 June 2019)