Anthony Davey v Jr Bulk Liquid Transport T/A Blu Logistics Solutions

[2014] FWC 7597

[2014] FWC 7597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Davey
v
JR Bulk Liquid Transport T/A BLU Logistics Solutions
(U2014/7673)

DEPUTY PRESIDENT BOOTH SYDNEY, 29 OCTOBER 2014

Application for relief from unfair dismissal.

[1] Anthony Davey was employed as a milk tanker driver by JR Bulk Liquid Transport Pty Ltd trading as Blu Logistics Solutions for approximately 18 months from October 2012. He was based at the JR Bulk Liquid Transport depot in Casino, NSW. He drove company owned specialist milk tankers to collect milk from local dairy farms and deliver the milk to milk product users such as the Norco Ice Cream factory at Labrador on the Gold Coast, over the border in Queensland. He drove the tankers on both large main roads and smaller country roads. Over the 18 months of his employment JR Bulk Liquid Transport received a number of complaints about Mr Davey’s driving conduct on some of the country roads. On 12 May 2014 his employment was terminated by JR Bulk Liquid Transport on the grounds that he was unlikely to reform his driving conduct and was a risk to the reputation and safety culture of the business.

[2] Mr Davey says his dismissal was unfair and he has lodged an application pursuant to s.394 of the Fair Work Act 2009 seeking financial compensation for unfair dismissal. He says he was dismissed because he would not sign a First and Final Warning given to him following a complaint from a local farmer and this is not a valid reason for dismissal. He also says he was not treated fairly in the process of his dismissal because he was not forewarned that the meeting he attended on 12 May 2014 with local managers, Mr Burton and Mr Fraser, might result in the termination of his employment.

[3] The issues before me are whether Mr Davey was unfairly dismissed and, if so, what is the appropriate remedy? I have considered the initial matters to be considered before the merits of the case as set out in s.396 of the Act and I conclude that there is no reason that the merits of Mr Davey’s case cannot be heard. 1

[4] To determine whether Mr Davey was unfairly dismissed I must consider whether his dismissal was harsh, unjust or unreasonable. 2 In so doing I must consider the following:

• whether JR Bulk Liquid Transport had a valid reason or reasons for dismissing him; 3 and



• whether he was afforded procedural fairness 4 and the impact of the size of the business and its human resource capability;5 and



• any other relevant considerations. 6

Did JR Bulk Liquid Transport have a valid reason or reasons for dismissing Davey?

[5] Mr Davey was verbally dismissed in a meeting with Mr Burton and Mr Fraser on 12 May 2014. He was provided with an Employment Separation Certificate citing “unsafe driving habits” as the reason for dismissal. The written documentation in his possession during the meeting was a “First and Final Warning” dated 27 April 2014 but signed by Mr Fraser on 7 May 2014. This document read as follows:

“Dear Anthony,

We have recently received a complaint from Norco in relation to speeding on Norco property. You have also been verbally warned on various occasions about your speed on farm. Not adhering to speed limits is a breach of breach of (sic) JR Bulk Liquid Transport policy.

It is a requirement of all JR Bulk employees that they follow instructions and procedures in all areas of our business, failure to do so will result in dismissal.

Labrador Site Speed Limits:

The speed limit as soon as a tanker comes through the gates onto the site is 10 km/h with this dropping to 5 km/h when entering the tanker bay.

These speed limits are in place to reduce the potential of any accidents or incidents between tankers and other vehicles/pedestrian staff.

This written warning will stay in effect for twelve months and your performance will be managed during this time.

If you have any questions please don't hesitate to contact me...”

[6] In evidence Mr Fraser said that he decided to dismiss Mr Davey in the latter phase of the meeting because “...Anthony would not change his driving habits to suit our needs”. 7 I am satisfied that the reason Mr Davey was dismissed was that on at least four occasions his driving conduct did not meet the standards expected by JR Bulk Liquid Transport, that this driving conduct jeopardised the reputation of JR Bulk Liquid Transport and that he was resistant to accepting that his driving conduct should be improved. I do not agree with Mr Davey’s submission that he was dismissed because he would not sign a First and Final Warning. Whilst Mr Davey’s refusal to sign the document was a feature of the circumstances giving rise to the dismissal, it is far too narrow a construction of the reason’s he was given.

[7] I consider that it was reasonable for Mr Fraser to come to the conclusion that Mr Davey was unlikely to change his behaviour and that JR Bulk Liquid Transport was likely to receive more complaints of the kind received on four occasions during Mr Davey’s employment. In the presentation of his case Mr Davey was unrepentant. He accepted that the incidents complained of occurred but he denied that he was speeding, submitting that he did not exceed the speed limit of 100km per hour. He did not understand that it was his employer who set the acceptable standard of driving required in his employment not the road regulations.

[8] These are sound, defensible and well founded reasons to terminate his employment. 8

[9] It is important to establish that the conduct upon which my conclusion is drawn actually happened.

[10] The conduct arising from the incidents is summarised below:

Date of incident	Nature of complaint//incident	Mr Davey’s submission	JR Liquid Transport’s submission	Does the Commission accept that the incident occurred?
3 April 2013	Complaint about speeding on Wiangaree Rd on three occasions, the last being 3 April 2014.	Says he passed a truck. Says he was not speeding. Accepts he should have used the UHF (two way radio).	Warning clearly given and recorded in writing as a verbal warning for internal purposes by Mr Fraser but not seen by Mr Davey.	Yes. I accept that the complaint was made and at least one incident complained of occurred.
18 April 2013	Complaint about speeding on Bolans Rd.	Accepts dust was created by the truck but says it was because “gravel was pooled up in the corner” 9 and after that he slowed down.	Verbal warning given and recorded in writing for internal purposes by Mr Fraser but not seen by Mr Davey.	Yes. I accept that the complaint was made and the incident occurred.
22 April 2013	Minor accident driving tanker into the ditch.	The traffic controllers were at fault.	No warning. Mr Fraser “not blaming you for that” 10	Yes. Provides background but not relied upon in drawing conclusion.
21 August 2013	Minor accident with tanker hitting a car.	The other car was at fault.	Verbal warning given and recorded in writing for internal purposes by Mr Fraser but not seen by Mr Davey. Mr Fraser “not condemning him”.  11	Yes. Provides background but not relied upon in drawing conclusion.
29 August 2013.	Complaint of excessive speed in Norco factory grounds.	Accepted at the time that he “rolled in there a little bit quicker than normal” and said he would not do it again. 12	First “First and Final warning” given in writing signed by Mr Fraser and Mr Davey on 29 August 2014.	Yes. Complaint made and incident occurred.
April 2014	Speeding fine issued in Casino after tanker left depot and entered a 50k per hour zone.	In a 50 km zone and the truck picked up momentum exceeding 50 km per hour and when the brake was applied the exhaust (auxiliary) brakes were not working properly.	No warning given.	Yes. Provides background but not relied upon in drawing conclusion.
27 April 2014	Complaint of excessive speed on Hogarth Range Road.	Agrees MT Data reveals speed of up to 67k on the unsealed road and up to 87k on sealed road. Contends the speed limit is 100K and he was not speeding. Says the car being driven by the complainant was on the wrong side of the road. Refused to sign the “First and Final Warning” in the form it was in because he did not accept that he had been driving at excessive speed.	Speed as indicated from MT Data is excessive for Hogarth Range Road. Reprimand given orally on 6 May 2014 and Second and last “First and Final Warning” provided in writing on either 7 or 8 May 2014.	Yes. Complaint made and incident occurred.

[11] Mr Davey made submissions that any mistakes he made during his employment were as a result of fatigue. This does not sit comfortably with my impression that JR Bulk Liquid Transport has a strong safety culture. Indeed their desire to maintain this culture appeared to me to be the reason they took Mr Davey’s conduct so seriously. The submissions made concerning their remuneration framework being deliberately designed to remove pressure for deadlines to be met were convincing. In oral submissions Mr Davey did not press this point and said that he never felt fatigued during his working hours. He accepted that he signed on as being fit for work when he commenced work but and said that it was only when he ceased driving the milk tankers for JR Bulk Liquid Transport that he concluded that he was fatigued during that period.

[12] JR Bulk Liquid Transport Company Rules and Policies include a warning that an employee may be dismissed for, amongst other things “Drive at excessive speed” and “Fail to follow supervisor’s instructions, particularly regarding safety practices”.

[13] Each one of the instances noted above, by themselves, would not be a valid reason for dismissal. But taken together, and combined with Mr Davey’s resistance to accepting that his driving needs improving, they do warrant the conclusion Mr Fraser came to and I find that this was a valid reason for dismissal.

Was Davey afforded procedural fairness?

[14] The provisions of the Act that I am required to consider to answer this question go to the heart of procedural fairness in a termination of employment.

[15] I have concluded that Mr Davey was not afforded procedural fairness in the way in which he was dismissed. I find that his dismissal was harsh and therefore unfair.

[16] The questions I have considered in coming to this conclusion are:

Was Davey notified of the reason for his dismissal? 13

[17] Mr Davey was notified of the reason for his dismissal at the time the decision was made by Mr Fraser on 12 May 2014.

Was Davey given an opportunity to respond to this reason as it related to his conduct? 14

[18] Mr Davey had been given a Second “First and Final Warning” which in part read:

“This written warning will stay in effect for twelve months and your performance will be managed during this time. If you have any questions please contact me”.

[19] Mr Davey believed that he was meeting with Mr Burton and Mr Fraser on 12 May 2014 to discuss this document with a view to him signing it once it was amended in a way that was acceptable to him. It had been provided to him on 7 or 8 May 2014 and he was reluctant to sign it in the form it was in. When he was contacted by Mr Burton on 12 May 2014, a day he was not scheduled to work, he was told to come in and see Mr Fraser about the document. He explained his failure to initiate contact with Mr Fraser as the result of being on night shift from the time he was spoken to about the complaint. I accept that he was on night shift and his lack of contact with Mr Fraser or Mr Burton over this period was reasonable. Mr Fraser gave evidence that he had not intended to dismiss Mr Davey but came to the conclusion that dismissal was appropriate towards the end of the meeting.

[20] It follows that Mr Davey was not on notice that his employment may be terminated in this meeting. Mr Davey’s evidence was that he went to the meeting without any expectation that the consequence could be dismissal. He was given an opportunity to respond to the conduct that underpinned Mr Fraser’s decision to dismiss him. Indeed it was his resistance to the conclusions in the “First and Final Warning” that was the reason for dismissal and this was what Mr Davey had come in to the meeting to discuss. However it could not be said that he had the opportunity to respond to this as the reason for dismissal.

[21] This contributes to a finding that his dismissal was harsh.

Was Davey unreasonably refused a support person at any discussions relating to his dismissal? 15

[22] It follows from my conclusion about Mr Davey’s understanding of the reason for the meeting on 12 May 2014 that he was, in effect, prevented from having a support person present at the meeting relating to his dismissal as he did not know that his employment may be terminated in this meeting. He did not ask for a support person to come to the meeting so he was not explicitly refused the presence of a support person. However the circumstances were such that he may not have expected to need a support person and the absence of clarity as the range of possible outcomes from this meeting in effect denied him this opportunity.

[23] This contributes to a finding that his dismissal was harsh.

To the extent that the dismissal related to unsatisfactory performance, had Davey been warned about this before the dismissal? 16

[24] The dismissal related to Mr Davey’s conduct and his attitude towards changing that conduct rather than from his work performance. Although the line between conduct and performance in this case is somewhat blurred I do not regard this criterion as relevant in this case. In any event he was warned on a number of occasions. His first “First and Final Warning” on 29 August 2013 that was still in force at the time of his second “First and Final Warning”.

[25] This does not contribute to a finding that the dismissal was harsh.

Did the size of JR Bulk Liquid Transport impact the procedures followed in dismissing Davey? 17

[26] JR Bulk Liquid Transport is a large specialist bulk milk transport company with 45 trucks across the group working in Queensland, NSW and most recently established in South Australia. There is no evidence that the size of the company had an impact on the procedures adopted in the dismissal.

Did JR Bulk Liquid Transport have a dedicated human resource management specialist or specialists and if not did this impact the procedures followed in dismissing Davey? 18

[27] JR Bulk Liquid Transport did not have specialist human resource function or expertise in the Casino depot where the dismissal was determined. Mr Fraser and Mr Burton are operational managers. However JR Bulk Liquid Transport is a large enough employer to have developed policies and procedures for dismissing employees and I would have expected a more considered approach to be taken to addressing Mr Davey’s situation. Once Mr Fraser came to the conclusion he came to he should have advised Mr Davey he was considering terminating his employment for the reason given. He should have allowed Mr Davey an opportunity to return for another meeting with a support person, or adopt another fair process to allow him to put his case as to why he should not be dismissed. He was not obliged to act on whatever Mr Davey put forward, but he was obliged to listen. The absence of a dedicated human resource management specialist does not explain why Mr Fraser did not take more care with the process. This is a circumstance where the principle that a “fair go all round” is accorded to the employer and the employee concerned was not met. 19

[28] This contributes to a finding that Mr Davey’s dismissal was harsh.

Are there any other relevant considerations in determining whether Davey’s dismissal was unfair?

[29] Mr Davey did not have a particularly long period of service with JR Bulk Liquid Transport . His length of service does not contribute to a finding that his dismissal was harsh. Mr Davey has children from a first and second marriage and found his period of unemployment following dismissal particularly difficult. He was forced to negotiate payment plans in relation to some debts and his wife returned to the workforce to a job she does not consider a long term career option. This is unfortunate but not an unusual consequence of losing a job. Mr Davey was successful in obtaining employment 8 weeks after he was dismissed and is happy in his new role. Nothing in this circumstance contributes to a finding that the dismissal was harsh.

Conclusion

[30] I have found that JR Bulk Liquid Transport had a valid reason for dismissing Mr Davey. I find that the dismissal was neither unjust nor unreasonable. However I find that the dismissal was unfair because of the way in which it was done. Mr Davey was not afforded procedural fairness and I find as a consequence that his dismissal was harsh and therefore unfair.

Remedy

[31] Both Mr Davey and JR Bulk Liquid Transport submit that reinstatement would not be an appropriate remedy. Mr Davey says, in effect, he could not work for JR Bulk Liquid Transport again after the way they treated him. He has another job that is suiting his needs better than the job with JR Bulk Liquid Transport. JR Bulk Liquid Transport say it would not be appropriate because they could not trust him to drive appropriately and not generate more complaints. I accept that reinstatement would not be an appropriate remedy. However I have found that Mr Davey was unfairly dismissed so compensation is appropriate. 20

Compensation

[32] In determining the amount of compensation that is appropriate I must apply the provisions of s.392 of the Act. In so doing I am guided by a recent decision of the Commission, Brett Haigh v Bradken resources Pty Ltd T/A Bradken, 21 where the Full Bench reviewed the authorities on the calculation of compensation. The Full Bench in this case confirmed the approach to be taken as set out in Sprigg v Paul Licensed Festival Supermarket22 noting that the legislation has been amended since this decision to permit a reduction in the amount of compensation otherwise payable if an employee’s misconduct contributed to the decision to dismiss. The Full Bench also noted that the Full Bench in Smith v Moore Paragon23 commented that the guidelines laid down in Sprigg v Paul Licensed Festival Supermarket are not a substitute for the words of the Act.

[33] I estimate that Mr Davey would have remained in employment for one year from the date of his dismissal and would have received or would have been likely to receive payment for this period. 24

[34] He was successful in obtaining employment on 18 August 2014. His earnings from 18 August 2014 to 12 May 2015 (the anniversary of his dismissal) constitute 38 weeks pay. 25

[35] I must deduct a period of 38 weeks from the 52 week period leaving 14 weeks. Mr Davey was paid 2 weeks pay in lieu of notice and I deduct this amount leaving 12 weeks.

[36] I consider that Mr Davey’s conduct was such as to warrant a 2/3 reduction in compensation. I so order in accordance with s.392 (3) of the Act.

[37] I order JR Bulk Liquid Transport to pay compensation for unfair dismissal equal to 4 weeks pay to Mr Davey.

[38] This amount is unlikely to affect the viability of the employer’s enterprise, 26 is appropriate considering the length of Mr Davey’s service27 and takes into consideration Mr Davey’s efforts to mitigate the loss of his employment by seeking a new job.28 It is less than the compensation cap pursuant to s.392 (5) of the Act.

DEPUTY PRESIDENT

Appearances:

A. Davey, the Applicant

T Jensen, for the Respondent

Hearing details:

2014.

Sydney

10 October.

Final written submissions:

Respondent’s Submissions received 3 October 2014.

Applicant’s Submissions received 17 September 2014.

 1 Section 396 Fair Work Act 2009.

 2 Section 385(b) Fair Work Act 2009.

 3 Section 387(a) Fair Work Act 2009.

 4 Section 387(b) to (e) Fair Work Act 2009.

 5 Section 387(f) to (g) Fair Work Act 2009.

 6 Section 387(h) Fair Work Act 2009.

 7   Transcript PN 406.

 8   Selvechandran v Peteron Plastics Pty Ltd [1995] IRCA 333

 9   Transcript PN 256.

 10   Transcript PN 159.

 11   PN Transcript 125.

 12   PN Transcript 290.

 13   Section 387(b) Fair Work Act 2009.

 14   Section 387(c) Fair Work Act 2009.

 15   Section 387(d) Fair Work Act 2009.

 16   Section 387(e) Fair Work Act 2009.

 17   Section 387(f) Fair Work Act 2009.

 18   Section 387(g) Fair Work Act 2009.

 19 Section 381 Fair Work Act 2009.

 20 Sections 391 and 392 Fair Work Act 2009.

 21   [2014] FWCFB 236.

 22 (1998) 88 IR 21.

 23   [2011] FWAFB 1080.

 24 Section 392(2)(c) Fair Work Act 2009.

 25 Section 392(2)(e) and (f) Fair Work Act 2009.

 26 Section 392(2)(a) Fair Work Act 2009.

 27 Section 392(2)(b) Fair Work Act 2009.

 28 Section 392(2)(d) Fair Work Act 2009.

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