Posted on February 2, 2014 by Lindsay Taylor

Council unfairly dismisses employee after loss of drivers licence

In Neville Brown and Parramatta City Council [2014] NSWIRComm 1002, Tabbaa C in the Industrial Relations Commission of NSW held that the Applicant had been unfairly dismissed by the Council from his employment after having lost his driver’s licence, despite being able to drive being an ‘inherent requirement’ for his employment with the Council.

The Applicant’s driver’s licence was suspended for 12 months following his conviction for refusing to be breath tested. At the time the Applicant lost his licence, he was working alternative duties because of an injury in respect of which he had made an unsuccessful claim for workers’ compensation.

The Council contended that it had exhausted alternative suitable duties for the Applicant by the time of his licence suspension and had advised him to use his remaining leave entitlements to cover his absences from work. However, it did not offer him leave without pay. Soon after his leave entitlements were exhausted, the Applicant’s employment was terminated. The reason given for the termination was his loss of his driver’s licence, not his injury.

The Commission found on the evidence that:

  • the Applicant had an unblemished work record throughout the period of his employment,
  • driving was an inherent part of his duties,
  • the Council had provided him with alternative suitable duties in relation to his injury well after it had been required to do so under s49 of the Workplace Injury Management and Workers Compensation Act 1998,
  • the Council had accommodated other employees, including him, during instances of loss of drivers licences,
  • it was likely that the Applicant’s dismissal, despite the reason given by the Council, had been precipitated by a dispute between the Applicant and the Council relating to ongoing treatment for his injury.

In the result, the Commission held that the dismissal was unfair because the Applicant could have been offered leave without pay for the period of his licence suspension. The Commission ordered the Council to pay the Applicant an amount equivalent to four weeks pay and provide him with a Certificate of Service.

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