Interesting case decided recently by the Fair Work Commission (“FWC”) in Bonny Walia v Citywide Service Solutions [2016] FWC 7814 (9 November 2016). It concerned a garbage truck driver who was busted by a Council inspector (and later sacked) for urinating in a CBD laneway during his shift. The FWC (in their wisdom) found the conduct insufficient to justify his dismissal and reinstated him back into his position!

This is yet another instance of the ‘vibe’ s 387(h) “other matters that the FWC considers relevant” to a dismissal trumping a valid reason and sound process in a dismissal. The FWC agreed valid reason to dismiss Mr Walia existed, and Citywide followed a comprehensive pre-dismissal process but, for factors subjective to the dismissed driver, the dismissal was “harsh” given (inter alia) he may have trouble finding another job and had a family to feed.

What’s an employer to do in such circumstances? Citywide was rightly concerned one of it’s drivers exposing himself and urinating in a CBD laneway – overlooked by residential apartments (not to mention extensive CCTV) – had the potential to make the company look bad. Bissett C of the FWC seemed to get this when she held “I do not consider urinating in a public laneway in the CBD to be acceptable conduct by an employee of Citywide”.

Also counting in the employer’s favour was that the driver:

• provided no “cogent” reason for failing to stop to find a public toilet on his route;
• made-up a claim he was unaware of where to find one, but this was found to be “disingenuous” because he had worked for Citywide for four years and knew the Melbourne city garbage collection route intimately;
• admitted he had 90 minutes within which he ‘felt the urge’ to urinate and so could have accessed a public toilet to do so;
• was busted by a City of Melbourne inspector (i.e. the Company’s client!) who caught him relieving himself in the laneway and issued him an infringement notice;
• had the inspector follow up with Citywide to express his concern about the driver’s conduct;
• was met with by Citywide twice pre-dismissal to discuss the incident and find out why he was unable to wait until he could find a toilet; and
• was unable to offer an explanation for his actions but, to ‘save his skin’, later claimed he was crook and might have had a bladder infection. Yet, when Citywide attempted to confirm this with his treating practitioner the driver frustrated this confirmation by refusing to sign a release permitting this. Hmm, this doesn’t seem fishy at all, does it! So much for the obligation on an employee to cooperate fully with their employer in an investigation or disciplinary review.

Yet, despite the overwhelming factors above, the driver was reinstated to his former role. Bissett C held the dismissal was “harsh” because it was disproportionate to his misconduct. Seriously? What’s an employer to do?

Time to make some hard decisions Commission

The FWC has a role to play to make hard decisions, at times, so as to set an example and deter other employees from engaging in misconduct at work. Bissett C noted there were “many (perhaps too many)” decisions involving the dismissal of urinating employees” coming before the FWC but then shirked the hard decision, forgave the conduct and gave the driver his job back. Well, we’re unlikely to see any reduction in the perhaps too-high number of “decisions involving the dismissal of urinating employees” whilst the Commission keeps treating them with kid gloves, waving away their offending conduct as nothing serious and reinstating them.

What do you think? Was the employee taking the p1ss with his misconduct at work, and should have lost his job? Or, is the sack for one ‘slip up’ from an otherwise dependable employee (quickly admitted to and for which they are sorry for) too harsh a price to pay.