We have recently reviewed a decision of the Fair Work Commission (the Commission) involving the Southern Midlands Council, Tasmania (the Council) and an animal management employee. The decision serves as a useful reminder for employers who provide vehicles to their employees to have clear policies in place regarding their usage.
A bit of background on the jurisdiction
Local governments in Tasmania are regarded as National System Employers because of Tasmania’s decision to refer a portion of its (previously) state industrial relations system to the Commonwealth by way of the Industrial Relations (Commonwealth Powers) Act 2009 (Tas). This means the Fair Work Act 2009 (Cth) applies to local governments in Tasmania and their employees. This is different from the position in Queensland where local governments are still within the state industrial relations system covered by the Industrial Relations Act 2016 (Qld).
What happened between the Council and the employee?
The kickstarter for the employee’s dismissal was a complaint from the employee’s neighbour that the employee was hooning in a council vehicle (by doing ‘burnouts’). The Council investigated the neighbour’s complaint by reviewing GPS records for the vehicle, however it was unable to conclude whether the complaint was substantiated.
The investigation into the GPS records inadvertently led to the Council becoming aware the employee was frequently leaving her home significantly after her start time of work. There was a subsequent investigation into allegations of timesheet fraud (given the employee had represented in her timesheets she was working full-time hours). The investigation found the allegations were substantiated and on that basis the employee was dismissed.
What did the Council do correctly?
The Council had conducted a workplace investigation into the allegations of timesheet fraud. The GPS data was compared with timesheets submitted by the employee (selected at random by the investigator). The results suggested the employee had regularly used the council vehicle outside of her work hours. It was also clear the employee was frequently travelling to her partner’s residence and staying for some time during her work hours.
The Council had a clear policy in place for the fitting of the GPS device and the recording of data. The Council also had a clear policy in place addressing the use of its vehicles. At the commencement of her employment, the Council’s policy on vehicle use was provided to the employee and she was informed she fell into the ‘Commuter Use Only’ category, which did not allow for private use of a council vehicle unless permission was obtained from a manager.
What could the Council have done better?
The employee’s manager accepted he had a discussion with the employee (early in her employment) in relation to the employee picking up her children from school. The manager believed the employee was merely performing a “quick errand” incidental to her employment duties (i.e. driving to and from work) and did not appear to reprimand the employee, explaining she would not be penalised for occasionally picking up her children. Relevantly, the manager was unaware the employee was extensively using a council vehicle for other private purposes.
The Commission concluded the employee was “given an inch and taken a mile” and thereafter believed she could use her council vehicle for private purposes. Nonetheless, the Commission accepted the employee’s manager had sent “mixed messages” to the employee and found the Council could not rely on the employee’s conduct of picking up her children as misconduct.
The Commission was also somewhat critical of the fact the employee’s manager did not notice the employee’s misuse of a council vehicle, despite having easy access to the GPS records. The Commission jokingly suggested the employee’s manager was “asleep at the wheel” when it came to managing the employee, however it ultimately concluded the failure to manage did not have the effect of condoning the employee’s behaviour.
Three (3) tips for employers
Tip 1 – Clear and concise policies
· Employers providing vehicles to employees should set out their expectations in writing using a policy;
· If there are GPS tracking devices used in vehicles, employers should ensure they have a policy in place regarding their use;
· Provide relevant policies to employees and document their receipt; and
· Ensure employees are made aware of any subsequent amendments to the policy.
Tip 2 – Consistent application of policy
· If policies expressly prohibit certain conduct, ensure employees are not permitted to engage in conduct contrary to the policy;
· Provide training to managers to ensure they fully understand a policy to avoid ‘mixed messages’ being conveyed to employees which may affect enforceability; and
· Ensure any discussions regarding the scope of a policy are conducted in writing (or otherwise promptly confirmed in writing following an oral discussion) to avoid any subsequent dispute on the content of a discussion.
Tip 3 – Act promptly on breaches of a policy
· Upon becoming aware of a breach, employers should promptly take action to avoid being found to have condoned improper behaviour;
· Employers should conduct a workplace investigation into serious allegations of misconduct (such as theft, fraud or assault) and engage an external investigator (if necessary). Our office is experienced in conducting workplace investigations; and
· If deficiencies are identified within a policy following a workplace investigation or a review, ensure amendments are made to prevent further incidents. Amended policies should be provided to employees as soon as practicable.
As the lawyers for employers, we assist employers with ensuring their expectations are communicated to employees, whether by preparing policies, contracts or conducting training. We also assist with conducting workplace investigations into sensitive and complex allegations in the workplace. Should you require assistance please contact us to arrange an obligation free consultation on +61 (07) 3876 5111
About the Authors
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
Dan Chen is an associate at NB Lawyers, the lawyers for employers, and specialises in employment law. Dan is passionate about assisting business owners, small and large understand their obligations under Australia’s complex workplace relations system.
 Helen Bryant v Southern Midlands Council  FWC 4738.