A construction worker on Sydney’s Westconnex who was fired for allegedly almost running over a co-worker with a dump truck has been awarded $54,000 for unfair dismissal.

The Fair Work Commission found CPB Contractors’ serious allegations against the female driver, implying either attempted murder or deliberate intimidation, did not stack up, particularly given her co-worker later used an emoji to jokingly refer to the incident.

“This is not the behaviour of someone who, about 20 minutes earlier, genuinely thought that he had come within 30 centimetres of being deliberately killed and who ‘was thinking of his kids and about how close he was to never seeing them again’,” senior deputy president Jonathan Hamberger said.

The co-worker alleged that the day before the incident the driver had directed a stream of abuse at him, calling him a “a smart ass … an arrogant prick … a f—g dickhead … [and] a c–ksmoker”.

The driver disputed that account and said her co-worker had responded aggressively to her request that he return some tools, including by saying that everyone hated her.

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She admitted responding by telling him “everyone thinks you’re a c—ksmoker” but argued that was not as harsh as what her co-worker said.

The next day the co-worker alleged he had to jump off a pedestrian crossing to avoid getting hit as the driver accelerated towards him in a truck.

He said the truck missed him by just 30 centimetres and “all I could think about were my two daughters and how close I was to never seeing them again”.

He said he was left shaking, and alleged the driver walked passed him 40 minutes later and stuck her middle finger out at him.

The driver denied the claims and said she had been “going at a snail’s pace” and had stopped six to 10 metres before him.

‘Clearly light-hearted’

Senior deputy president Hamberger found the co-worker had implied either the driver was trying to murder him or was driving in such a reckless manner as to place his life in “grave danger”, perhaps to “intimidate him”.

“One would need very good evidence before accepting that such an allegation is true on the balance of probabilities.”

However, he found the co-worker’s version of events “inherently implausible”.

“There is simply no indication that [the prior verbal altercation] was so inflammatory as to have motivated the applicant to try and kill [the co-worker] or recklessly endanger his life.”

He noted that in text messages sent to his supervisor shortly after the incident, the co-worker jokingly asked if it would “count” in his favour if the driver had tried to run him over with a Moxy.

When his supervisor joked “that’s normal. No points”, the co-worker replied “shit I’d thought I’d be worth 5 points” and added a sad face emoji to the end of his message.

The senior deputy president said the “clearly light-hearted” dialogue contradicted the co-worker’s evidence that he was left shaking and unresponsive by the incident.

He ordered CPB to pay the driver $54,000 in unfair dismissal compensation after deducting $2000 for giving her co-worker the finger after the incident.

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