20 Jul 2017
Dominos fail to fall for the driver who wanted to have her pizza and eat it too
By Dan Trindade, James Daff
Employers should avoid, as far as practicable given their aim, creating competitions, incentives or bonuses which use language that suggests obligation.
A recent Fair Work Commission decision has identified that dispute resolution procedures under enterprise agreements will not generally apply to gifts and prizes under workplace competitions (Hart v Domino's Pizza Enterprise Ltd t/a Domino's Pizza  FWC 3268).
No dough for pizza delivery driver
In 2016, Domino's Pizza Enterprise Ltd offered a competition to its pizza delivery drivers, offering a prize of $15,000 to the Domino's "Delivery Driver of the Year". Ms Hart had won the first prize of a brand new car in 2015 and was determined to win the prize two years running.
The "Delivery Driver of the Year" award was awarded to the driver with the highest overall score on the driver leader board. The score was assessed by number of deliveries, customer feedback and data recorded through the company GPS system. During the year, Ms Hart noticed that her ranking on the leader board began to slip and raised complaints with Dominos regarding the accuracy of the GPS data.
The 2016 competition was won by a Domino's delivery cyclist, who peddled away with the $15,000 first prize. Ms Hart, who came in second and won a $1,000 fuel voucher, was "bitterly disappointed" with the outcome and made an application under the Fair Work Act 2009 (Cth) to the Fair Work Commission disputing the outcome.
Fair Work Commission delivers unpalatable result
Ms Hart brought an application under section 739 of the Act, claiming that Domino's had breached the Domino's Enterprise Agreement. However the Fair Work Commission dismissed the application, determining that it did not have jurisdiction to hear the dispute.
The Commission rejected a number of bases for the claim made by Ms Hart (including bullying). As for her argument that the dispute could be characterised as a dispute arising under the Agreement, it held that:
- Section 739 of the Act only granted jurisdiction to FWC to hear the dispute if the Agreement required or allowed it.
- The proper characterisation of the dispute was a dispute over whether Dominos used correct data in in the competition, which was not a matter set out in the Agreement.
- As such the dispute was not one that was required or allowed to be dealt with under the Agreement and could not proceed. There was no clause in the Agreement generally or specifically stating that the Commission could deal with disputes over Domino's incentive schemes. There was no mention of employee incentive schemes in Domino's policies or code of conduct. Furthermore, Domino's obligation under the Act to keep accurate records did not apply to the competition because it was completely discretionary in nature and could be changed at any moment by Domino's.
In this instance both the Agreement and the documentation in respect of the competition were appropriately worded so that there was no jurisdiction for the Fair Work Commission to review or investigate the competition and its result.
The take-away for employers
Workplace competitions, incentives and bonuses can be great for staff morale ‒ but they can also lead to workplace conflict. The fact of workplace conflict does not, however, automatically mean that enterprise agreement dispute procedures can be used to challenge discretionary decisions of management in respect of competitions, incentives and bonuses.
To avoid having those discretions fettered or subject to review and scrutiny employers should:
- Ensure that dispute resolution procedures in enterprise agreements are drafted carefully to only include those disputes that you want to include.
- Ensure that competitions, incentives and bonuses that are intended to be discretionary are drafted carefully to make it clear that they are discretionary and are not subject to challenge or review.
In particular, employers should avoid, as far as practicable given their aim, creating competitions, incentives or bonuses which use language that suggests obligation ‒ for example suggesting that employees can "earn a bonus" should be appropriately qualified by use of terms such "discretionary" or "at the company's discretion" or "no obligation".