Ben Starkey v Cootes Transport Group Pty Ltd - [2011] FWA 228

[2011] FWA 228

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Ben Starkey
v
Cootes Transport Group Pty Ltd
(U2010/10120)

DEPUTY PRESIDENT SAMS

SYDNEY, 20 JANUARY 2011

Application for unfair dismissal remedy - applicant dismissed for using a mobile phone while driving a fuel tanker - serious misconduct - numerous incidents of breach of policy and the law - dismissal not unfair - application dismissed.

BACKGROUND

[1] Mr Ben Starkey (‘the applicant’) was employed as a fuel tanker driver by Cootes Transport Group Pty Ltd (‘the respondent’). He commenced employment with the respondent on 20 November 2008. He was dismissed on 31 March 2010, after being observed on 25 March 2010, by three employees from two different organisations, talking on a handheld mobile phone, while driving through the town of Greta, New South Wales. His letter of dismissal was in the following terms:

Ben,

As discussed on Wednesday, 31st March, this letter is to confirm that your employment with Cootes transport has been terminated with immediate effect.

This is a result of your actions on Thursday 25th when you where (sic) observed talking on a handheld mobile phone whilst driving a company owned fuel tanker. This demonstrates wilful disregard for company policy and local legislation and is considered gross misconduct.

This incident follows a similar occurrence in August last year and after our discussions on 7th September last year, you personally assured me, on no less than two occasions, that this type of behaviour would not happen again.

Cootes Transport has a duty of care under OH&S and road transport legislation to ensure the highest level of safety for our staff, customers and the public. This latest occurrence is possible only when a conscious decision to breach known policy and legislation is taken, subsequently compromising our ability to maintain our duty of care responsibilities.

Your entitlements and payment in-lieu will be processed on the first pay run after you return all company owned equipment and PPE.

Yours sincerely

Ross Coleman

[2] The applicant lodged an application for an unfair dismissal remedy, under s 394 of the Fair Work Act 2009 (‘the Act’), on 29 June 2010. The application was listed for telephone conciliation on 20 July 2010. However, the conciliation proved unsuccessful. At some point, it appears the applicant had engaged an agent, a Mr A Kelemen, to represent him. However, Mr Kelemen did not appear for him at the conciliation or at any other time subsequently.

[3] It will be immediately apparent that the application was lodged outside the 14 day time limit set by s 394(2) of the Act. The respondent objected to Fair Work Australia (FWA) dealing with the application on these grounds and the matter proceeded to a jurisdictional hearing on 17 September 2010. The applicant was unrepresented at the hearing and Mr M Callanan, Solicitor, appeared for the respondent. On that day, Raffaelli C extended the time for filing the application, under the discretion available…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ben Starkey v Cootes Transport Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FWA 228
Decision Date: 20 JANUARY 2011

CaseChat Overview and Summary

Ben Starkey applied for a remedy for unfair dismissal against Cootes Transport Group Pty Ltd. The applicant, employed as a fuel tanker driver, was dismissed for using his mobile phone while driving, in breach of company policy and statutory requirements. The primary dispute centred on whether the dismissal constituted unfair dismissal under the Fair Work Act 2009. The Fair Work Commission was tasked with determining the fairness of the dismissal in light of the applicant's repeated breaches of policy and the law.

The court had to consider whether the dismissal was harsh, unjust, or unreasonable. Key issues included the nature and seriousness of the misconduct, the consistency of the company's policy enforcement, and whether the applicant had a reasonable opportunity to remedy the situation. The court also evaluated whether the dismissal was proportionate to the offence committed. The applicant argued that the dismissal was unfair, citing a lack of prior warnings and the absence of a clear policy on mobile phone usage. The respondent, however, maintained that the dismissal was justified due to the serious and repeated nature of the breaches, which posed significant safety risks.

The Fair Work Commission found that the applicant's dismissal was not unfair. The court held that the applicant had been repeatedly warned about using his mobile phone while driving and that the company had consistently enforced its policy. The repeated breaches, coupled with the significant safety risks involved, justified the dismissal. The court also noted that the applicant had not demonstrated that the dismissal was disproportionate to the offence. Consequently, the application for an unfair dismissal remedy was dismissed.

Orders