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Getting tired of an employee doesnt cut it – FWC awards driver compensation in unfair dismissal case – Unfair/ Wrongful Dismissal

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The Fair Work Commission (FWC) has recently
found that a truck driver was unfairly dismissed and entitled to
compensation in the case of Kyle Ogden v Prestia Holdings Pty Ltd
[2022] FWC 2234

The facts of the case

  • The Applicant, Mr Kyle Ogden, was employed by the Respondent,
    Prestia Holdings Pty Ltd (Prestia), as a licenced
    heavy vehicle dangerous goods driver from December 2020 until his
    employment was terminated in February 2022.

  • Prestia’s principal, Mr Prestia, died suddenly on 18
    January 2022 and his wife, Ms Prestia, was required to take over
    the business.

  • On 7 February 2022, Mr Ogden texted his supervisor, Mr Gunston,
    to inform him that he had received a driving infringement notice
    outside of work hours for using a mobile phone while driving.

  • Mr Ogden was stood down on pay immediately and on the following
    day was given a show cause notice, which is a written request that
    the employee respond to allegations which may result in
    disciplinary action, with the three allegations raised being

  • he breached fatigue management laws by driving longer than 12
    hours in an 18-hour shift on 18 January 2022;

  • he started work an hour late on the same day; and

  • received an infringement notice for using a mobile phone while

  • Mr Ogden’s employment was then terminated.

  • Mr Ogden then made an unfair dismissal application to the FWC
    under section 394 of the
    Fair Work Act 2009 (Cth)

The dispute

The central dispute between the parties was whether Prestia
tolerated or encouraged contraventions of fatigue management laws,
and whether doing so made Mr Ogden’s dismissal unfair.

The applicant’s submission

Mr Ogden contended that Prestia had done so by directing him to
perform jobs that required him to drive longer than 12 hours in a
shift on a regular basis.

The Fair Work Commission’s decision

Despite finding that wilful breaches of fatigue management laws
by a driver would be a valid reason for dismissal, and Mr Ogden had
obligations to make sure that he complied with those laws, the FWC
found that the termination was harsh, unjust or unreasonable.

The FWC held that the termination was an unfair dismissal
because Prestia:

  • instructed Mr Ogden when his employment commenced that he would
    lose his job if he did not perform additional work as

  • directed Mr Ogden to work excess hours on 18 January 2022 and
    so its termination on that ground was not a valid reason for

  • was entitled to change its approach to fatigue management
    requirements, that is, its alleged adoption of a strict approach
    toward compliance, but did not notify Mr Ogden of this change;

  • ultimately had a history of tolerating and encouraging Mr Ogden
    to perform his work in a manner that would breach fatigue
    management laws.


Since Prestia made all of its drivers redundant by 30 June 2022
and there was no prospect of the reinstatement of Mr Ogden’s
employment, the FWC ordered Prestia to compensate Mr Ogden as
provided for by section 390(1) of the
Fair Work Act 2009

The FWC ordered Prestia to pay Mr Ogden $15,645 (less taxation,
and plus superannuation) to compensate him for three weeks of his
average weekly wage which he would have otherwise received if his
employment had continued until he had been made redundant with the
other drivers, and four weeks of severance pay.

Key takeaways

Employers are entitled to (and should) direct employees to
comply with the laws governing their work, particularly work health
and safety laws. Employers that not only know that their employees
are breaching work health and safety laws, but also direct
employees to work in a manner which would result in the breach of
laws may be liable for fines and penalties.

Incoming managers are entitled to change their approach to
compliance with work health and safety laws to one which is
stricter, but they should notify their employees of this change in
their expectations and instructions.

In this case, Prestia’s failure to notify Mr Ogden of the
change in its expectations and instructions meant that it could not
dismiss Mr Ogden for conduct which it had a history of not only
knowing and tolerating, but also encouraging him to do so by
threatening dismissal.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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