In a recent decision the Fair Work Commission has dismissed an application for unfair dismissal by an electrical technician who was excluded from site by the legal occupier because of unsafe driving in the work car park.
The Facts
The employee was an electrical technician at Port Botany, Sydney.
His employer provided maintenance services at the port to Patricks which occupied and operated the port under a lease.
He was identified in CCTV footage as driving unsafely in the work carpark on 28 May 2024 and 3 July 2024.
On 9 July 2024 he was suspended by his employer on full pay while it carried out an investigation.
On 22 July 2024 Patricks informed the employer that the employee’s access to the site was revoked until further notice.
The employer’s investigation substantiated the allegations and on 26 July 2024 the Applicant was issued with a written warning.
The employer informed the employee and Patricks that the employee would be returning to work on 5 August 2024, having been given a warning.
On 1 August 2024 Patricks wrote to the employer advising that the employee was no longer approved to enter the site.
The employer subsequently notified the employee of its preliminary view that he would be unable to perform the inherent requirements of the position.
On 5 August 2024 the employee had a meeting with the employer to consider his redeployment options however it was resolved that none existed at the time.
On 16 August 2024 the employer sent the employee a show cause letter notifying that it was considering terminating his employment and inviting him to respond in writing.
After considering the employee’s response the employer terminated the employment by a letter dated 23 August 2024 because the employee could not perform the inherent requirements of the role and no suitable alternatives were available. He was paid 3 weeks in lieu of termination notice.
The employee applied for unfair dismissal.
The Decision
The Commissioner dismissed the application, finding that:
- Patricks had the legal right to exclude the employee from the site.
- Although the employer endeavoured to have Patricks withdraw the site refusal, this was refused by Patricks.
- The employer had no ability to redeploy the employee to another suitable job or role outside the site.
- The employee was treated fairly in terms how the site refusal was brought to his attention and was dealt with by the employer.
Implications
For site-based work where the employer does not control the site, the case is a reminder of the importance of observing the rights and expectations of the site operator/controller.
Employees need to be aware of the risks of behaviour that may lead to their site access being removed.
Employers are reminded of the importance of following a careful process in situations where site access has been removed. In appropriate situations this may include reasonably endeavouring to have the site refusal withdrawn and investigating redeployment alternatives.
At WorkLegal our experienced team can answer your questions and put you on the right track. A range of fixed-price Initial Consultations will suit most people’s needs in quickly learning what their options are.