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Can an employer dismiss an employee if they are unable to maintain relevant registration or licences required for their job? Senior Workplace Relations Adviser Phil Eberhard wades through a difficult ruling to get to the answer.
A long-running dispute between BHP Coal Pty Ltd t/a BHP Billiton v Construction, Forestry, Maritime and Energy Union ended up in the Fair Work Commission again recently.
The dispute erupted when an employee of BHP Coal Pty Ltd had his driver’s licence suspended after failing to pay a number of fines.
As the employee had lost his licence he was incapable of undertaking a number of his allocated duties; primarily those relating to the operating of vehicles and mobile plant/equipment.
The dispute centred on whether, or not, the employer had an obligation to provide the employee with alternative duties rather than being sent home and forced to use his leave entitlements.
The dispute notification was first heard by Deputy President Ingrid Asbury who found that:
“A requirement for (the employee)… to operate a vehicle and/or mobile plant and equipment in circumstances where he could not comply with the Safe Operation of Vehicles SOP is not unlawful. As (the employer)… correctly submits, prior to the suspension of (his)… driver licence it was lawful for the Company to require (him)… to operate vehicles and mobile equipment on site. During the suspension the requirement did not cease to be lawful. What changed was (the employee’s)… ability to carry out that lawful instruction.”
In the appeal decision, the Commission found that:
“At all relevant times (the employee)… worked in the Prestrip Department at the mine and his work duties primarily involved the on-site operation of vehicles and mobile equipment. At the mine, (he)… had adopted a standard operating procedure, GRM SOP 0027, for the use of vehicles and mobile plant equipment pursuant to s76 of the Coal Mining Safety and Health Regulation 2001 (Qld).”
The SOP required: - All operators of vehicles and mobile equipment must hold a current Australian Driver license. Loss of license must be reported immediately to the Supervisor. Approval from the SSE or delegate is required for the Operator to continue to operate vehicles or mobile equipment on site.
It was not in dispute that the employee was not permitted to resume his duties and was sent home, and subsequently did not attend work and was not paid until the period of his licence suspension ended.
The dispute was about the extent to which the employee might have been allocated alternative duties rather than being sent home.
The Commission continued: “In evidence before the Deputy President (he)… and other CFMEU witnesses identified a number of other duties (he)… could have performed, but (the employer)… said there were limited duties able to be performed that did not require a driving licence and (the employer)… needed every member of (the)… crew to be able to operate vehicles and mobile equipment.
“Because of (the employee’s)… failure to maintain his licence over the relevant period, (he)… put himself in a position where (he)… was unable to perform the tasks that would normally be required of him ‘while complying with all legal and statutory obligations’… and likewise was not in a position to ‘work as directed’.
“The Agreement did not, in the applicable circumstances, confer upon… (the employee)… any entitlement to payment beyond that provided by his contract of employment.”
“(The employee)… was not ready or able to provide the service required by (the employee’s)… contract and clause 4.1 of the Agreement because of (the employee’s)… failure to continue to hold his driver’s licence.”
Lessons to be learned
While all decisions turn on the circumstances peculiar to the decision, this decision demonstrates that should an employee not maintain the relevant licence or registration, the employer may be able to stand down the employee (without pay) because that employee cannot undertake the task/s that require such licence or registration.
In such circumstances, the employee would not be able to comply with their contractual obligations and as such, the employer could stand down the employee until their licence or registration is reinstated.
Prior to standing down an employee, the employer should look to see whether there are alternative duties that could be undertaken by the employee concerned.
In some circumstances, there could be alternative duties and these could be offered to the employee, in other circumstances there would be no alternate duties available and the employee would need to be stood down until they can lawfully undertake the tasks.
As an aside to the main aspect of the decision, the Commission also confirmed that the intent and purpose of clauses in Awards / Agreement that deal with Employer and Employee Duties (refer to Clause 18 of the Union Agreement) is to broaden, rather than minimise or lessen the scope of work that an employee can undertake.
The only condition is that the employee is lawfully able to carry out such an instruction.
Should there be any questions please contact Phil Eberhard, Senior Workplace Relations Adviser, Master Plumbers on phone 03 9321 0720, mobile 0425 790 722 or email [email protected]