The truck driver was fired after his manager caught him sleeping in his truck. However, according to the worker, he was resting in the truck and trying to stay dry during a potential downpour. 

Fair Work Commission deputy president Gerard Boyce said that the worker had no reason to be resting up or escaping the rain in the truck. 

“Taking shelter in the truck from rain is contrary to the employer’s inclement weather procedures,” he said. 

“There is always work to do indoors if work in the yard cannot be performed due to bad or unsavoury weather, and there is an undercover table and chairs where employees can rest if they are not working in the yard.”

The worker did not notify his supervisor or any other employee working that day that he was removing himself to the truck.

“I find that there was a valid reason to dismiss the applicant from his employment,” Mr Boyce said. 

However, the FWC found that while the applicant was advised of the reason for his dismissal (sleeping on duty), he was not given an opportunity to respond or raise issues of mitigation before the decision was made to dismiss him. 

The commission ultimately found that the dismissal was unfair, based on an absence of procedural fairness in his dismissal. 

The driver sought reinstatement or, in the alternative, compensation for lost earnings up to the statutory limit.

Mr Boyce said reinstating the worker would be inappropriate. 

“The applicant has denied that he was asleep on duty on 7 April 2022. Despite these denials, I have found that he was asleep,” he said. 

“The applicant has shown no contrition or remorse for his conduct. There is clear animosity between the applicant and the respondent’s management. Had the respondent effected the applicant’s dismissal in a procedurally fair manner, it is unlikely that I would have found his dismissal unfair. The issue of remedy, therefore, turns to whether compensation should be awarded, and if so, its quantum.”

The deputy president programmed further hearings to determine compensation.

Read the judgment

Brett Steed v Active Crane Hire Pty Ltd [2023] FWC 15 (25 January 2023)