Anthony Cini v Pickering Transport Group

[2015] FWC 2372

[2015] FWC 2372

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Cini
v
Pickering Transport Group
(U2014/13070)

VICE PRESIDENT WATSON MELBOURNE, 7 APRIL 2015

Application for unfair dismissal remedy - whether termination of employment harsh, unjust or unreasonable - whether valid reason for dismissal - dismissal related to conduct and performance - application dismissed - Fair Work Act 2009, ss.387 and 394.

[1] This decision, edited from a decision on transcript on 25 March 2015, concerns an application for unfair dismissal remedy by Mr Anthony Cini pursuant to s.394 of the Fair Work Act 2009 (the Act). The application concerns the termination of Mr Cini’s employment with Pickering Transport Group. That termination was effected by way of a letter dated 18 September 2014.

[2] The question that I have to determine is whether that dismissal was harsh, unjust or unreasonable, and pursuant to s.387 of the Act I must take into account the factors that are set out in that section. I also have regard to other factors contained in the submissions of the parties and other relevant matters in forming a view, in an overall sense, whether the termination was harsh, unjust or unreasonable.

[3] The factors that are set out in that section are clearly intended to be a guide as to what constitutes an unfair dismissal or a dismissal that is properly regarded as fair.  So I propose to look at each of those matters as far as they are relevant. 

[4] The first question is whether there was a valid reason for the dismissal related to the person's capacity or conduct, including its effect on the safety and welfare of other employees. Most of the evidence in this matter related to that question.  The letter of termination sets out the grounds for termination and the evidence establishes that Mr Cini did not have an unblemished record.  There were a series of issues that arose during the course of his employment, which was not a lengthy period. Since the commencement of his employment a number of counselling communications and verbal warnings were given to him about various aspects of his work, and they certainly related to his communications with other employees and his reliability.  So that pattern of performance is part of the background to this matter.

[5] Then there was a series of issues that arose from an injury and a partial incapacity to perform work which was subject to a worker's compensation claim. Workers compensation payments were discontinued. Many of the events that were ultimately relied upon by the employer arose from those set of circumstances in August and September of last year.

[6] I think it is fair to say on the evidence that there was a final event which crystallised the concern of the employer and was seen as the last straw, as it were, justifying termination on the grounds of misconduct. This was based on the view of the company that Mr Cini had driven a vehicle from Broken Hill when he was medicated and did not believe that he was able to safely drive the vehicle.  He communicated his concerns about that in a form that indicated that he was attempting to absolve personal responsibility for that situation, but drove the vehicle nevertheless.

[7] There is some confusion in the evidence as to the precise circumstances on that evening of 9 September.  In interviews that the company undertook with him, Mr Cini essentially admitted that he took the medication and drove with that medication in an unsafe manner.  In his evidence today he said that he did not take that medication until after he completed the journey and that he was confused as to the dates of different events.

[8] That incident occurred after earlier instances where essentially Mr Cini did not attend for work and undertake a delivery.  The evidence suggests that the absences were not subject to prior notification or medical approval, that the company was required to deploy other employees to complete the trip and was therefore inconvenienced and damaged as a result of those failures.  But it really is the final event of 9 September which appears to have brought this matter to a head.

[9] The test of whether there is a valid reason for a dismissal and whether it is a summary dismissal or otherwise is whether the reason is sound and defensible and well founded and not fanciful, prejudiced or capricious.  That is the test that needs to be applied. Given the circumstances that arose, the communications that were made by Mr Cini to the company prior to the journey and after the journey when it investigated the matter, and sought his response to the allegations, I consider that it was appropriate for the company to form the view that the relevant conduct occurred and that in all of the circumstances there was a valid reason for the termination.

[10] The next consideration I am required to have regard to is whether Mr Cini was notified of that reason.  The evidence discloses that Mr Cini was suspended from his employment the following day, 10 September, by way of a letter which indicated the concern the company had, but did not indicate the details of the allegations.  The letter of 10 September foreshadowed a formal discipline hearing to occur on Wednesday 17 September.  On 17 September the company outlined its reasons for termination, which were subsequently communicated in the termination letter, and Mr Cini was given an opportunity to respond to that material.  But in terms of whether he was notified of the reason there is a clear correspondence between what was communicated to him at the meeting of 17 September and the reasons for termination which are set out in the letter of termination of 18 September.  So I find that Mr Cini was notified of that reason.

[11] The next question which follows closely from the previous factor is whether Mr Cini was given an opportunity to respond to that reason. The evidence discloses that at the meeting of 17 September the allegations were particularised and explained to him.  Mr Cini had a support person and also had a representative of the Transport Workers’ Union of Australia on the phone line.  He provided certain responses during the course of the meeting which Mr Mitton described as admissions—admitting that he was affected by medication and should not have been in control of the vehicle that evening and admitting that he was under the influence of medication on 9 September when in control of a heavy vehicle.

[12] After he provided those responses a further adjournment was provided and a further opportunity was given to respond further.  The wording of this criterion is whether Mr Cini was given an opportunity to respond to the reason relating to his conduct.  Unless the opportunity was in effect no opportunity at all then it must be concluded that, in the circumstances I have outlined, an opportunity was given.  There was certainly no evidence that Mr Cini sought further opportunities to make a considered response, but the details were explained to him at that meeting and he did provide a response. I find therefore that he was given an opportunity to respond.

[13] The next criterion is whether there was an unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal.  It is not alleged that there was any such refusal and that I find that there was no such refusal in the circumstances.

[14] The next factor is if the dismissal related to unsatisfactory performance by the person whether the person had been warned about the unsatisfactory performance before the dismissal.  I think it is fair to say that the reasons for termination, although culminating in the events of 9 September, followed the employment history and the other events of absenteeism which preceded them. I find that the counselling and warnings that were previously given to Mr Cini put him on notice that he needed to attend to all requirements of his employment and that further breaches, especially matters of a serious nature, would have put his employment in jeopardy.

[15] In a sense this criterion is more related to a termination for a lesser offence than the one that was ultimately relied upon because the employer regards the termination as serious misconduct—driving in an unsafe manner. Nevertheless I think insofar as the previous history was taken into account, that factor, and my findings in relation to it have some relevance.

[16] The next factor is the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal.  The employer is not a small employer, it has dedicated human resources expertise and procedures are set out in writing and correspondence in a way which I think put Mr Cini on notice as to the concerns of the company.  Obviously given the nature of the operation, the nature of long haul truck driving, certain communications between management and employees are more informal and the history of communications discloses that.

[17] One might be critical of the company in certain respects in that the letter of suspension of 10 September did not articulate all of the detail of the reasons which are ultimately relied upon, but in the scheme of things I do not consider that those matters are critical to the outcome, or disclose any substantial defect in the procedure. This factor is essentially one that might excuse a small employer from the detailed procedures that a large employer might follow and to that extent I do not think that it is a relevant factor in these circumstances.

[18] The next factor is a similar matter and it is 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.  There was no absence of expertise and I do not consider that to be a relevant factor.

[19] The final criterion is any other matters that the Commission considers relevant and I have regard to all of the circumstances of Mr Cini's employment, obviously the difficult situation he was in given that he had an unfortunate workplace injury.  Apparently because of his inattention to detail in relation to the WorkCover entitlements his workers compensation benefits were discontinued and he found himself in financial difficulties. He had medical limitations on working a certain number of shifts per week yet was not being paid for the shifts he did not work.  That caused a significant amount of stress and tension.  That is disclosed in the communications he made with the company which displayed an element of frustration.  Added to that I think there is certainly an element of frustration that in order to drive on the shifts that he was allocated he felt that he did require medication, yet he was concerned about the effects of that medication on his ability to drive.

[20] I take those factors into account, and I must have regard to all of those factors in relation to the ultimate question of whether the termination was harsh, unjust or unreasonable. Given the findings that there was a valid reason for the dismissal and there was an opportunity to respond to that reason and the procedure which allowed Mr Cini to have input into the consideration by the company, and the importance of those factors in the overall scheme of things and taking into account all of the matters, I find that the termination was not harsh, unjust or unreasonable.

[21] It follows from that conclusion that the application in this matter should be dismissed.

VICE PRESIDENT

Appearances:

Mr Lawrie of the Transport Workers’ Union of Australia for Mr Cini.

Mr Spottiswood of the National Road Transport Association for Pickering Transport Group.

Hearing details:

2015.

Mildura.

25 March.

Final written submissions:

Mr Cini on 24 February 2015.

Pickering Transport Group on 16 March 2015.

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