Job descriptions are not contracts of employment and the inability of an employee to undertake a duty within his job description does not of itself justify dismissal – read what the SA Employment Tribunal had to say in this article about an employee who was terminated after he lost his drivers license
Stevens v City of Victor Harbor  SAET 67 (14 August 2023)
The South Australian Employment Tribunal is witnessing a rising number of cases related to unfair dismissals, thus emphasising the increasing importance for employers to familiarise themselves with handling such disputes. In the recent case of Stevens v City of Victor Harbor  SAET 67 (14 August 2023), Deputy President Judge Lieschke presided over a dispute involving section 108 of the Fair Work Act 1994, focusing on the question of whether a termination could be characterized as unduly harsh or unreasonable. This case underscores the crucial lesson that, in order to prevent legal conflicts, employers should carefully explore alternative options before resorting to dismissal.
Mr Craig Stevens was employed as a construction worker by the Corporation of Victor Harbor (‘the Council’). However, his employment was suspended after he lost his driver’s licence as a result of drink driving. On 2 January 2023, the Council suspended Mr Stevens from his duties, alleging that he had “breached” his “position description” by having his licence suspended because his licence was an “inherent requirement” of his role. Following Mr Stevens’ suspension, at a meeting on 5 January 2023, Mr Stevens’ employment with the Council was terminated, despite his Team Leader’s assertion that there was ample work available that did not necessitate a driver’s licence.
By utilising s 108 of the Fair Work Act 1994, Mr Stevens argued that the Council’s decision to dismiss him was unduly harsh, unjust and unreasonable. Mr Stevens contended that there were sufficient tasks that he could perform without a licence and cited the inconsistent treatment of two other employees who had not been dismissed after losing their driver’s licences in similar circumstances. However, the Council denied that the dismissal was in breach of s 108 of the Fair Work Act 1994, asserting that a valid driver’s licence was an inherent or essential requirement of Mr Stevens’ position. The Council also argued that accommodating Mr Stevens’ 12 month driving restriction would lead to additional costs and inefficiencies.
DPJ Lieschke scrutinised the Council’s reasons for dismissal, holding that a breach of a position description was not a valid reason for dismissal because such a document is not a contract of employment but merely describes the features and requirements of a position. As stated by Judge Lieschke, “An employee might not satisfy all the requirements but that alone is not a valid reason for dismissal.” Therefore, DPJ Lieschke then turned to whether it was indeed impossible for the Council to provide Mr Stevens with suitable duties without incurring extra costs.
It was revealed that the CEO of the Council had received poor advice, leading to a mistaken belief that hiring a replacement for Mr Stevens would be necessary, consequently incurring significant additional costs. Furthermore, the CEO also had not been informed that Mr Stevens’ Team Leader had identified plenty of work that could be performed without a driver’s licence. As such, Judge Lieschke found that it was likely Mr Stevens could have been productively employed in his original position, provided that duties were reallocated as suggested by the Team Leader. Therefore, DPJ Lieschke held that the grounds for dismissal resulted from a confused allegation and an unreasonable investigation that had failed to consider Mr Stevens’ and his Team Leader’s compelling arguments against dismissal. As such, DPJ Lieschke ruled that the dismissal was undeniably harsh and unreasonable and was therefore in breach of s 108 of the Fair Work Act 1994. Consequently, the Council was ordered to re-employ Mr Stevens.
In conclusion, Stevens v City of Victor Harbor will act as a powerful precedent for employees who have potentially been unfairly dismissed. Consequently, this case serves as a crucial reminder to employers that, although termination might appear convenient, it may not necessarily be the wisest course of action. To avoid legal conflicts, it is advisable to explore alternative employment solutions before resorting to dismissal.