Employees less-than-credible ‘David Beckham cologne’ defence falls flat

A Sydney garbage truck driver who argued that his “David Beckham cologne” contributed to his positive alcohol test has had his unfair dismissal claim rejected. The Fair Work Commission “immediately” dismissed this argument and noted that the sacking had come after many instances of insubordination, flouting of workplace policies, and lack of employee credibility.

]This decision demonstrates that if you have a bad track record of conduct with your employer, it can often seal your fate at the Fair Work Commission. A single instance of misconduct may often warrant a warning from your employer. But when it is preceded by multiple transgressions, it can often lead to a fair sacking. 

In this article, we look at the events of this unfair dismissal case Roland Barber v Liverpool Veolia Recycling and Recovery Pty Ltd [2025]. We also look at another recent Fair Work Commission case where an employee’s poor track record weighed against him. 

Dismissed truckie’s cologne excuse doesn’t wash with Fair Work

Roland Barber began working for Veolia Recycling & Recovery Pty Ltd in September 2014 as a garbage truck driver. He was most recently working at the company’s site in the south of Sydney. Mr. Barber had a checkered history at Veolia. In October 2023, he was involved in two separate vehicle accidents. He only accepted responsibility for the first accident and refused to accept a warning letter from management.

In February 2024, Mr Barber violated a direction from Veolia’s Road Safety Team after he was seen driving a truck on the “operator/pickup side,” which the Team had said he could not do. In the same month, he was also caught speeding.

‘You will be losing your house over this:’ Worker stood down

At around 4:30am on 12 April 2024, a stop work meeting occurred at Veolia’s site in south Sydney due to safety concerns. Mr Barber’s supervisor reported that he was “discouraging drivers” who had already left the stop work meeting from leaving. The meeting went for about 10 minutes. When a regional manager asked Mr. Barber if the workers could return to work, he told the manager that the meeting would continue until 7.00am and not when “management decides.”

Mr Barber was subsequently called into a meeting and issued a stand down letter. Mr Barber told his supervisor “I will be letting everyone know” about his stand down order. He also told his supervisor that “you will be losing your house over this.” He added that this is what happened to the last person that stood down a health and safety representative.

Issued final warning – employee credibility is tested

Mr Barber then walked out into the yard and said: “I have just been stood down.” When he attempted to photocopy the stand down letter, his supervisor told him he could not as the letter was confidential. Mr Barber was later issued a letter that alleged that he had failed to follow a reasonable and lawful direction. He was subsequently issued a final written warning for the events of 12 April 2024.

Dismissed for positive alcohol test 

On 20 June 2024, Mr Barber met with New South Wales Premier Chris Minns at a Transport Workers’ Union function. He took a photo with the Premier and later that night drank 6 beers and ate a meal at the function, Mr Barber told the Fair Work Commission. He said that he stopped drinking at 8.00pm and went to bed two hours later. 

The next day, Mr Barber woke up at 2:30 am and headed to work for his shift. At 3.58am, he underwent drug and alcohol testing and returned a low-level positive test for alcohol (0.013%). A second test at 4.22am was also positive (0.007%). On 16 July 2024. Mr Barber was sacked by Veolia for violating its drug and alcohol policy. He subsequently lodged an unfair dismissal claim with the Fair Work Commission.

Blamed positive reading on David Beckham’s cologne

In his unfair dismissal claim, Mr Barber argued to the Fair Work Commission that his dismissal was harsh. This was because his second alcohol reading was “below the company policy of 0.00.” He stated that standing anyone down for a reading of 0.007% was “extreme.”

Mr Barber also alleged that Veolia had not properly administer the alcohol test, violating its own policy. He also said that he had put on “David Beckham Cologne” that morning and that this may have influenced the reading. 

Employee credibility is hit after ‘misconceived’ claims

At Mr Barber’s unfair dismissal hearing, the Fair Work Commission rejected many of his arguments. With respect to blaming David Beckham’s cologne, it said that this theory can be “immediately discounted.” The Commission stated that the results of the alcohol test were “valid and correct.”

It did concede that the “low level” of Mr Barber’s test result would not have violated NSW law to drive on the roads. However, it said that it still violated Veolia’s zero-tolerance drug and alcohol policy. The Commission also dismissed Mr Barber’s arguments about the test being improperly administered as “misconceived.”

Veolia’s violation of own policies deemed not significant

The Fair Work Commission, however, did agree with Mr Barber’s claim that Veolia violated its drug and alcohol policy by allowing him to partake in a handover process for two hours following his positive alcohol result.

It also agreed with him that the company had violated its policy when he was stood down. This was because it had asked if he was ok to get home but did not offer transport to get there. In granting these violations, the Commission ruled that they were of “marginal significance” to the fairness of his sacking.

Dismissal ruled fair for ‘repeated’ infractions

Ultimately, Mr Barber’s checkered record at Veolia served do undo his unfair dismissal claim. The Fair Work Commission ruled that his sacking was “reasonable and proportionate.” This decision took into account his “repeated” violations of safety protocol and the multiple occasions in which he refused to obey lawful directives.

It noted that his past indiscretions involved threatening his manager or refusing to cooperate with Veolia. He had also tried to photocopy a confidential letter and refused to leave the work site despite given multiple orders to do so. The employees credibility had already been questioned, therefore his final infringment was the ‘final straw’.

The Commission did not accept Mr Barber’s claim that his union role was the reason for his dismissal. Commissioner McKinnon observed that bargaining had “all but concluded” and found no evidence that Veolia dismissed him because of his involvement in an industrial activity. The Fair Work Commission therefore rejected Mr Barber’s unfair dismissal claim.

Driver with history of speeding gets wrecked at Fair Work

Another unfair dismissal case where the employee’s lack of credibility harmed his chances is Thien Huy Xuan Dang v Coca-Cola Europacific Partners Australia Pty Ltd [2023]. Thien Huy Xuan Dang started working for Coca-Cola Europacific Partners Australia a regional technician in October 2016. The role required him to drive a company vehicle across a large part of New South Wales to visit clients. While with clients, he performed tasks such as installation, servicing, quality control, and maintenance of machinery.

Mr Dang’s company vehicle was fitted with a speed monitoring system. Between March 2021 and December 2022, he had been caught speeding 10 times. He was first issued a warning for speeding in October 2022. On 29 November 2022, when further speeding incidents came to light, Mr Dang was issued a second warning. Coca-Cola told the Fair Work Commission it advised Mr Dang that further speeding events could result in termination of employment. 

Said he would ‘“never do it again’

The second warning to Mr Dang was made in the “strongest possible terms,” according to Coca-Cola. The company also required him to obey with specific directions. This included not misusing company assets, driving safely, remaining vigilant about speed, re-reading the vehicle policy and completing specific training.

Mr Dang confirmed via email that he understood the vehicle policy and completed the required training. He told Coca-Cola that he was “remorseful” for the speeding violations and that he would “never do it again.”

Worker blamed speeding on faulty cruise control 

However, on 19 December 2022, just two weeks after receiving the second warning, Mr Dang was involved in two further speeding events. On both occasions he had been driving 9 kilometres per hour over the speed limit. Mr Dang was subsequently sent a letter of allegations regarding these events. 

On 20 January 2023, Coca-Cola told Mr Dang that the allegations had been substantiated. He was issued a letter to show cause why his employment should not be terminated. Mr Dang was stood down on the same day. Mr Dang provided a written response to the show cause letter and attended a meeting management.

In his response, Mr Dang claimed that the speeding may have been due to a faulty “cruise control stick” in his vehicle. Mr Dang also said that his personal problems related to “family stresses” could have contributed to his speeding. Coca-Cola claimed to the Fair Work Commission that Mr Dang admitted to deliberately speeding by setting his speedometer 5 kilometres above the speed limit

History of infractions saw him dismissed

On 31 January 2023, after considering Mr Dang’s responses and disciplinary history, the decision was made to terminate his employment. Coca-Cola told the Fair Work Commision that Mr Dang’s admission of deliberately speeding was a “determinative factor.”

This was particularly the case given his disciplinary history and prior warnings. Mr Dang was paid five weeks’ pay in lieu of notice. In justifying the dismissal, Coca-Cola cited Mr Dang’s previous warnings and counselling letters for speeding.

Employees credibility fails in argument to Fair Work

In his unfair dismissal claim, Mr Dang argued to the Fair Work Commission that Coca-Cola should have been more supportive. He said that it had refused to purchase a GPS navigation system for his work vehicle, to warn him of changes in road regulations.

Mr Dang also claimed that the speedometer in his truck always displayed 4 kilometres more than the speed displayed on an app he used to measure speed. He also alleged that the speed monitoring system fitted to the vehicle was inaccurate and that Coca-Cola had refused to check the cruise control and speedometer. 

Mr Dang also told the Fair Work Commission that in the last decade he had not received any speeding or infringement notices by the police. He also claimed that his good driving record saw him get a 50 per cent discount on his license renewal.

Employer highlighted track record of speeding

Coca-Cola, meanwhile, argued that it had given Mr Dang a lawful and reasonable direction to follow road rules and drive safely. Violating this direction, the company argued, constituted a valid reason for dismissal. Coca-Cola said that it was a “very obvious requirement” not to speed while driving the company vehicle. 

It highlighted that Mr Dang had engaged in multiple speeding events on 19 December 2022. Coca-Cola said that this was a “blatant and purposeful” safety breach. It said that in addition he had an “abysmal record” of 10 speeding events prior to December 2022. It said that he was fired for his “multiple speeding events” and particularly for his “purposeful” safety breach.

The company also told the Fair Work Commission that Mr Dang had never prior to his second warning raised concerns with the speedometer in his vehicle and its interaction with his speed measuring app.

It said that he did not deny, and in most cases, accepted that he had engaged in the various speeding events. The company maintained that there was “no reason” to believe there were any issues with the vehicle speed monitoring system.

Fair Work slams worker for repeated speeding

At Mr Dang’s unfair dismissal hearing, the Fair Work Commission acknowledged that he “always accepted” that speeding was not acceptable. It also acknowledged his explanations for why he was caught speeding so often. This included that he did not see a speeding signpost or because he had taken an unfamiliar route.

However, the Commission said that “the regularity” with which Mr Dang was caught speeding could not be “explained away.” by these excuses. It also took issue with his statement about having a good driving record in his private life. The Commission said that this did not reflect at all on his driving record for his employer.

It was found that Mr Dang’s regular speeding offences struck at the “trust and confidence” that is the basis of all employment relationships. It said it was “reasonable” for Coca-Cola to have lost confidence in his ability to drive safely. 

The Fair Work Commission therefore ruled that Mr Dang’s sacking had been fair. His unfair dismissal claim was therefore rejected.

Have you been unfairly dismissed?

Our team at A Whole New Approach has over three decades’ experience helping Australian workers make unfair dismissal claims. Call us today on 1800 333 666 to discuss our situation with our team. We can help you lodge a claim and put your best foot forward at the Fair Work Commission. AWNA are not lawyers, but the nation’s leading commentators, advisors and influences.

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