Fair Work Commission Delivers Chilling Decision on Driver’s Dismissal Over Melted Ice-Cream

| August 17, 2026

On 13 July 2026, in the decision Jeremiah Manly v ERH Refrigerated Transport Pty Ltd, the Fair Work Commission (FWC) upheld an employer’s summary dismissal of a line haul truck driver for failing to check the temperature in a refrigerated trailer.¹

The entire load of ice-cream the driver was transporting defrosted, resulting in the loss to the employer of over $100,000.00.

Despite some irregularities regarding the dismissal procedure, the FWC held that:

• the one instance of misconduct constituted a valid reason for dismissal; and
• the procedural irregularities did not have a significant impact on the outcome of the dismissal.

The decision illustrates that one instance of misconduct may be considered a valid reason for dismissal even in the face of procedural irregularities, provided that the procedural irregularities were not significant enough to affect the fairness of the dismissal.

Background

The driver, Mr Manly, had worked for the company, ERH Refrigerated Transport Pty Ltd (ERH) full-time since 4 November 2022, making daily trips between Wagga Wagga and Melbourne. In that time, ERH estimated that he had made 600 trips.

On 3 December 2025, Mr Manly was tasked with transporting a large shipment of ice-cream from Truganina to Wagga Wagga where another driver would continue to drive the truck to an ERH customer in Sydney.

Mr Manly was responsible for turning on the refrigeration unit in the truck and setting it to the required temperature of minus 22 degrees Celsius.

Instead, the temperature in the truck was set at minus 1 degree Celsius for the entirety of the 5-hour trip between Truganina and Wagga Wagga.

The mistake was not discovered until 1 am on 4 December 2025 when ERH’s night manager remotely corrected the temperature. By then the entire load had defrosted.

Mr Manly was terminated on 8 December 2025.

He filed an application for unfair dismissal remedy with the FWC pursuant to section 394 of the Fair Work Act 2009 (Cth) (FWA).

Was the Dismissal Unfair?

A dismissal (other than a case of genuine redundancy) will be unfair if it is harsh, unjust and unreasonable.²

In considering whether Mr Manly’s dismissal was harsh, unjust or unreasonable, Commissioner Sloan addressed the factors outlined in section 387 of the FWA, including:

• If there was a valid reason for the dismissal related to the employee’s capacity or conduct; and
• If the employee was notified of that reason; and
• If the employee was given an opportunity to respond to any reason related to their capacity or conduct; and
• Any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to the dismissal; and
• If the dismissal related to unsatisfactory performance, whether the employee had been warned about that unsatisfactory performance before the dismissal; and
• The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
• The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
• Any other factors that the FWC considers relevant.³

A Valid Reason for Dismissal

The key issue for determination was whether misconduct had occurred.

ERH stated the misconduct occurred when Mr Manly failed to set the temperature correctly and failed to check the temperature during the trip.

Mr Manly claimed there was no misconduct because he had set the temperature correctly before the trip commenced, but that the door to the truck was not closing properly and as a result the refrigeration unit must have malfunctioned.

He also maintained that the incorrect temperature was not entirely his fault because the distribution centre in Truganina and the second driver from Wagga Wagga to Sydney should also have been aware of the incorrect temperature.

Commissioner Sloan determined that, even if Mr Manly had initially set the temperature correctly in Truganina, as he contended:

• The temperature in the truck stayed at around 0 degrees;
• The night manager was able to correct the temperature remotely leading to the conclusion that the refrigeration unit was operating correctly; and
• Mr Manly had six opportunities to check the temperature between leaving Truganina and arriving at Wagga Wagga.

The Commissioner further determined that Mr Manly did not have to be the sole person responsible in order to be held accountable for his misconduct. The fact that the cold storage facility in Truganina may not have followed its own policies (not to transfer its product unless the temperature of the trailer was at least minus 12 degrees Celsius) and that the second driver also failed to check the temperature, did not preclude Mr Manly’s misconduct from being a valid reason for dismissal.

Of note, the other driver’s employment was also terminated.

Lastly, Commissioner Sloan determined the misconduct was a valid reason for dismissal even though ERH was unable to provide sufficient evidence of a repeated pattern of behaviour or warnings. The consequences of the misconduct were clearly foreseeable and resulted in significant loss to ERH so that the ‘one-off’ instance of misconduct was significant enough to warrant dismissal.

Procedural Irregularities: The Horse Had Bolted⁴

One of the procedural factors outlined in section 387 of the FWA requires the employer to notify the employee why it is considering dismissal so that the employee can be given an opportunity to respond before the employer makes a final decision regarding dismissal.

Commissioner Sloan found that ERH made the decision to dismiss Mr Manly prior to the meeting on 8 December 2025 where he was told (at the beginning of the meeting) that he was being terminated with immediate effect, meaning that Mr Manly did not have the chance to respond.

However, given that Mr Manly was unable to give an explanation for what happened, even at the FWC hearing, Commissioner Sloan found it unlikely that the procedural irregularity – ‘closing the stable door after the horse had bolted’, meaning that the decision to dismiss had been made prior to the meeting – had a material impact on the outcome of the decision.

The FWC’s Decision and What This Means for Employers

ERH dismissed Mr Manly for a valid reason and the procedural irregularity was not significant enough to render the dismissal unfair.

For employers, the key takeaways are:

• Even a one-off instance of misconduct, if significant, may be a valid reason for dismissal.
• Employers must be able to provide evidence that the misconduct occurred.

How to Avoid Unfair Dismissal Claims

This FWC decision reminds us that the procedural requirements are there for a reason – to provide the employee with a real opportunity to respond prior to the employer making a decision regarding dismissal.

However, as noted in Commissioner Sloan’s decision, minor procedural irregularities may not render a dismissal unfair if there is a valid reason for dismissal and the irregularities are unlikely to have affected the outcome of the dismissal.

Supporting Fair and Defensible Dismissal Processes

Even where there is a valid reason for dismissal, following a fair and considered process remains important.

IRiQ Law can assist employers with performance management, disciplinary processes and termination procedures to help reduce the risk of unfair dismissal claims.

If you need support managing a disciplinary or termination process, contact the IRiQ Law team.

Footnote

¹  Jeremiah Manly v ERH Refrigerated Transport Pty Ltd [2026] FWC 2636. 

² Fair Work Act 2009 (Cth) s 385(3).

³ Fair Work Act 2009 (Cth) s 387. 

⁴ Jeremiah Manly v ERH Refrigerated Transport Pty Ltd [2026] FWC 2636, [30] citing Crozier v Palazzo Pty Ltd (2000) 98 IR 137 at [73].