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Sacked: keys left in ignition on Cup Day

The dismissal was upheld despite being done quickly.
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Sacked: keys left in ignition on Cup Day

Sacked: keys left in ignition on Cup Day

16 July 2020

By Mike Toten

An employee was validly dismissed for leaving a company vehicle unlocked with its keys in the ignition. There was sensitive commercial information inside the car which could have put the employer’s security at risk had it been misused.

The dismissal was upheld despite being done quickly, resulting in some procedural fairness oversights.



Car left unattended

The employee was a casual delivery driver for a car dealership. The incident happened on Melbourne Cup Day and he was dismissed about 1.5 hours after the race.

He left the car unattended on the driveway of his home with its keys in the ignition for (he claimed) about five minutes, and it was stolen. He claimed he had returned home briefly to collect a pen needed for work purposes, but did not tell the employer he was doing so. The car was recovered (but later written off), but contents inside it that included spare keys for other company vehicles and documents with private financial information about customers were not. The keys belonged to new unsold vehicles, and would have been costly and inconvenient to replace.

On the day it was stolen, he returned to his workplace and submitted a report that claimed the keys were stolen from a table inside his home. However, he had earlier told both his supervisor (via a written report) and the police that he left the keys in the ignition.

The employer dismissed him on the day of the incident, and made the decision within 90 minutes after the Melbourne Cup.

The Fair Work Commission found that in its haste to dismiss him the employer had not given him an opportunity to respond to the allegations of misconduct. The HR manager claimed that she had tried to phone the employee, but the employee claimed that his phone was among the items stolen from the car, and that the HR manager knew this. She later contacted his father.

The employer also presented evidence that the employee had regularly incurred driving demerit points during his employment, and was close to losing his licence.


Decision

The FWC found that there was a valid reason for dismissal, and this outweighed the lack of procedural fairness caused by not giving him an opportunity to respond. The employee was well aware that there was sensitive and private information inside the car and had exposed the employer’s customers to potential danger. His driving record would also have been a valid reason. His conduct was careless and negligent, so his claim of unfair dismissal failed.

The bottom line: The employee’s conduct in this case was not merely an oversight. Leaving a work car unlocked and unattended with its keys in the ignition and sensitive work-related documents inside it amounted to both careless and negligent conduct, which should have been obvious to the employee. His attempts to change his story and a poor driving record also weakened his case.

His degree of misconduct was serious enough to outweigh the employer’s failure to provide him with an opportunity to respond to the allegations.


Read the judgment

Sully v CBMG North Pty Ltd [2020] FWC 3509, 3 July 2020

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