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Performance shortcomings: lost wheels not enough to lose job

February 1, 2017

In a decision handed down on 2 September 2016 the IRC Full Bench considered whether poor performance by a State Transit Authority (STA) bus mechanic justified his dismissal. The termination of his employment followed an incident in which a bus serviced by the mechanic lost two wheels as it rounded a corner.

Facts

Mr Sunil Dissanayake worked as a qualified motor mechanic with the State Transit Authority (STA) from March 2009 and serviced vehicles at the Ryde Depot. His dismissal followed an incident in August 2014 when it is alleged he failed to perform a specific work instruction requiring him to correctly secure the wheels of a bus he was servicing. As a result, the bus lost two of its wheels while being operated by the STA, placing its passengers and the driver at serious risk.

In the initial claim against his termination, Stanton C found the summary dismissal of Mr Sunil Dissanayake a proportionate response to his breach of vehicle maintenance and safety procedures, but nevertheless found the dismissal harsh due to the employee’s age and difficulty in obtaining alternative employment.

 

Consideration and finding

On appeal, the Full Bench of President Walton and Commissioners Tabba and Murphy considered the various work instructions and work orders concerned with the checking of wheels on vehicles being serviced. The appeal identified sufficient inconsistencies in these instructions and found Mr Dissanayake’s summary termination to be unlawful. Key to this was their identification of a third work instruction issued on the need to tension wheel nuts, which had only been issued after the service on the bus in question. As a result, they ordered payment of 18 weeks’ compensation.

 

Comments on the decision

While the decision confirms the risk employers run in terminating staff summarily rather than with notice, some more contentious points raised by the Full Bench in their decision are of interest. These included:

  1. Mr Dissanayake was issued a written warning just over 15 months prior to the August 2014 incident for failing to perform his duties competently, resulting in another bus travelling uncontrolled and leading to damage of both the bus and the Depot. The Full Bench differentiated this previous written warning as irrelevant to the facts at hand.

  2. Differentiating between a refusal to obey a reasonable and lawful instruction as against an act of incompetence arising from carelessness, and finding the latter is generally to be regarded of a lesser gravity for misconduct.

On both these points, it is considered the Full Bench may be open to criticism by future judicial consideration of these issues.

 

Tips for Local Government and Public Sector employers

An important observation of the Full Bench was of the STA’s differential treatment of Mr Dissanayake compared with that of his supervisor, who also signed off on the work done to the bus. The Full Bench found this disproportionate treatment of the supervisor failed to reflect their higher degree of responsibility.

 

Dissanayake v State Transit Authority [2016] NSWIRComm 10

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