Brooke Stephens v The Trustee for Price Family Trust T/A Kingaroy Freight Express
[2022] FWC 1373
•31 MAY 2022
| [2022] FWC 1373 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brooke Stephens
v
The Trustee For Price Family Trust T/A Kingaroy Freight Express
(U2021/11603)
| DEPUTY PRESIDENT LAKE | BRISBANE, 31 MAY 2022 |
Application for an unfair dismissal remedy – Valid reason found – no procedural unfairness – application dismissed
Ms Brooke Stephens (the Applicant) contends she was unfairly dismissed by The Trustee for the Price Family Trust T/A Kingaroy Freight Express (the Respondent), for whom she had worked since 5 February 2020. She seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was terminated from her position on the 24 November 2021 for “serious misconduct”.
As the matter could not be resolved by conciliation, a Member Assisted Conciliation was offered however the parties did not avail themselves of the opportunity. Directions were issued for the filing of material and a hearing was listed for 1 April 2022. The Applicant was represented by Mr Michael Alkan from HR Experts and Mr Paul Murray from Bristow Legal represented the Respondent. The Applicant was the only witness for the Applicant and the Respondent had Joan Price and Shannon Ashcroft as witnesses.
Both the Applicant and Respondent sought to be represented. Granting permission to be represented under s.596 requires the satisfaction of two elements.
· The presence of one of the criteria under s.596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”[1]
· Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[2]
I exercised my discretion and granted permission pursuant to s.596(2), to both parties, as I was satisfied that the matter would be dealt with more efficiently and effectively, considering the complexity of the matter and the capabilities of the parties. As both parties were represented, it is not unfair to allow representation.
Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the application. Neither party disputed and I am satisfied that the Applicant made her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal (as she earned less than the high-income threshold), that her dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.
Background
The Respondent operates a family owned freight business and has approximately 50
employees. It is located in Kingaroy, QLD. On 5 February 2020, the Applicant commenced as a permanent full-time employee, employed in an administrative role and occasionally filling in for drivers. The terms of the Applicant’s employment are contained in the Applicant’s employment contract dated 31 March 20201. A Drug and Alcohol policy (D&A policy) was also provided at this time and a signed acknowledgment completed by the Applicant.
The D&A policy provided that:
the sale, purchase, distribution or supply of any drug during work hours was prohibited(cl6.1);
any worker charged or convicted of use or possession of a drug must, as soon as practicable, notify the Respondent of the fact they have been charged or convicted and the circumstances of the charge or conviction(c6.4);
a worker commits a serious breach of the D&A policy if they are charged with the use or possession of a drug(cl11.3); and
disciplinary action for a breach of the D&A policy may include the termination of a worker’s employment.(Cl11.2)
On 3 September 2021, the Applicant returned 60 to 90 minutes late from a delivery run and the Applicant informed the Respondent that the delay was due to a special delivery in Blackbutt, QLD. However, Joan Price of the Respondent (Price) reviewed the relevant vehicle tracking data which revealed that the Applicant had made a stop at another property not on the assigned route (the Tarong property). The Applicant disputes that this conversation occurred.
On 6 September 2021, Mrs Price asked the Applicant why she had been delayed in
returning on 3 September 2021. The Applicant maintained that she was delayed because
of a special delivery. Mrs Price told the Applicant that this was not correct, and that tracking
data showed that she had driven to and parked at the Tarong property. Mrs Price directed the Applicant to not make personal stops or depart from the assigned route when making delivery runs.
On 27 September 2021, the Applicant was late returning from a delivery run to Esk, QLD, by about 60 to 90 minutes. The vehicle tracking data revealed that the Applicant had driven to the Tarong property on 8 September 2021, 27 September 2021 and 28 September 2021. On 29 September 2021, Mrs Price met with the Applicant and discussed the information from the tracking data. Mrs Price confronted the Applicant with the vehicle tracking data which revealed that the Applicant had continued to make stops at the Tarong property despite her clear direction to not make any unauthorised stops.
The Applicant said she was seeing a friend who had troubles at home. Mrs Price stated the tracking data clearly had the vehicle stationary at the same Tarong property. As the Applicant had breached her direction several times following Mrs Price’s instruction the Applicant was no longer to be given runs that would go near the Tarong property and further reinforced the direction not to make any personal stops or deviate from the assigned route when completing delivery runs.
On or about 1 October 2021, the Applicant was again late returning from a delivery run. A review of tracking data by the Respondent disclosed that the Applicant had made multiple unauthorised stops at the Applicants home whilst completing a delivery run. On 5 October 2021, Mrs Price informed the Applicant that tracking data disclosed that she had continued to make personal stops while on delivery runs in breach of her directions. Mrs Price told the Applicant that she could no longer be trusted to complete deliveries and that she would be removed from all delivery runs.
On or about 19 November 2021, media reported that a police raid had been conducted on the Tarong property as part of a significant anti-drug-trafficking operation. The Respondent understood the Applicant had recently attended Kingaroy Magistrates Court and then obtained records which disclosed that the Applicant had entered a guilty plea to two drug offences - possession of dangerous drugs and possession of drug paraphernalia.
The Respondent requested a meeting with the Applicant on 24 November 2021. The Respondent revealed that it was aware that the Applicant had been charged with and convicted of drug offences which she had failed to report in breach of the companies D&A Policy;
The Applicant accepted that she should have told the Respondent of the charges however the Applicant stated that she did not know the Tarong property was being used for drug purposes and organised crime and was under police surveillance. The Respondent stated that by driving and parking at the Tarong property that this could cause harm to the Respondents reputation and business.
The Respondent informed the Applicant that they could not continue her employment and offered the Applicant a further 24 hours to consider her position; the Applicant declined the offer of further time to consider her response but asked if she could continue until Christmas. This request was refused;
The Applicant was dismissed summarily and was paid two weeks wages in consideration of the Christmas period.
Applicant’s Material
The Applicant submits that there was no valid reason for the dismissal. Specifically, she was charged with possession of drugs in her personal time, with there being no evidence she consumed or had drugs during work hours; She offered to do a drug test and was rebuffed by the Respondent.
The Applicant maintains that the decision to terminate her was a pre-meditated decision by the Respondent and motivated by the charge of drug possession, that any “warning” she had received was not related to drugs and gave no indication that her employment was at risk thus the warning carries little weight. Further she does not recall receiving a copy of the purported Drug and Alcohol Policy and/or Code of Conduct.
The Applicant submits that given the Respondent points to Performance issues, the termination reason cannot be re- characterised as misconduct. Furthermore, not every breach of policy/procedure will provide a valid reason for termination of employment The Applicant further submits that other employees, Luke Calder and “Blake” had issues similar to the Applicant (deviating off route and charged with domestic violence) but both kept their jobs; It is well settled that differential treatment of comparable cases can be a relevant matter to consider in determining whether a termination has been “harsh, unjust or unreasonable”.[3]
The Applicant submits that there have been a number of cases in the Commission relating to drug use namely Sydney Trains v Hilder12 and Harris v Meadowbrook Golf Club which are relevant to the current matter and in particular point to an order of reinstatement or compensation as no evidence has been put forwards to suggest the Applicant was engaged in drug use at work.
The Applicant acknowledges she was provided reasons for her dismissal however, she was not given a proper opportunity to respond to any reason related to the capacity or conduct of the person and she was not allowed to have a support person at the dismissal meeting.
Finally, the Applicant asserts that whilst she had been given a warning making unauthorised stops and deviating off the route that she had not undertaken similar behaviour since her warning. The Applicant claims that the dismissal put her at risk of significant personal and economic hardship given that her most recent employment history with the Respondent reflects termination
Applicant’s Evidence
The Applicant claims that she was only informed once and informally around September 2021 for deviating from the designated route. She claims this occurred on two or so occasions. The Applicant had explained to the Respondent that a friend of hers was experiencing domestic violence and that the Applicant had gone to assist her friend. On another occasion the Applicant admits that she returned home to collect some items such as water, hat and sunscreen which she did not bring to work that day as she was not aware that she would be doing a delivery run that day. The applicant asserts that during the verbal warning that she had apologised for any wrongdoing and agreed that it would not occur again. Following the warning she contends that she did not deviate again from the authorised route.
On 24 November 2021 The Respondent initiated a meeting with the Applicant and stated that they had become aware of the recent court matter to which the Applicant had submitted a guilty plea regarding a drug possession charge that she was convicted for and also the Respondent had identified that the deviation from the route was to a property recently raided by the police for drug related matters.
The Applicant was informed in the same conversation that the Respondent claimed reputational damage had occurred to their business because of the Respondent’s truck being parked at the property that the police had been surveilling. Further, that the Applicant had breached the Respondent’s drug and alcohol policy by failing to inform the Respondent of the conviction.
The Applicant claimed that she was not given notice of the meeting or that it would result in her termination and that she was not given an opportunity to respond to the allegations nor have a support person.
The Applicant stated that she explained to the Respondent that her friend resides in a
share house and that she had no idea that the house was the much publicised, following the police raid, ‘Drug House’ She further claimed that she had not been requested to undergo a drug test and therefore there was no evidence she was under the influence of any substance whilst at work and offered to be tested on 24 November 2021 which the Respondent had declined. Furthermore, the drug possession charge was for the Applicant possessing cannabis and not for driving under the influence.
The Applicant further contended that once she had been warned in September 2021 that she never deviated from the route again and there was no evidence that she had deviated. Also, that it was never made clear to the Applicant that her job might be at risk following the warning.
The Applicant stated that she did not recall receiving a copy of the Respondent’s drug and alcohol policy nor whether she had signed it but that it may have been possible however she was not tested on the contents nor was there any refresher training.
The Applicant contended that two other employees kept their jobs in circumstances which were similar, and that the termination has had a detrimental impact on her both emotionally and financially. And that she has been unable to secure full time employment since the termination. However, she did confirm that she had gained casual employment, but to date had only earned about $445.
Respondent’s Material
The Respondent asserts the Applicant was dismissed for her wilful and deliberate misconduct constituted specifically:
“• on 3 September 2021, driving a company vehicle off the assigned route and to 46 Tanduringi Drive, Tarong, QLD (Tarong property), being a property where police allege serious criminal activity was occurring, namely drug trafficking and illegal firearm possession;
· after having been directed on 6 September 2021 not to make personal stops or depart from the assigned route, driving the Respondent’s vehicle to the Tarong property while on delivery runs on 8 September 2021, 27 September 2021 and 28 September 2021;
· after being directed on 6 September 2021 not to make personal stops or depart from the assigned route, and again on 29 September 2021, making personal stops at her place of residence on 1 October 2021 while on a delivery run;
· dishonesty to her employer during a disciplinary process, in respect of her answers provided on 6 September 2021 and 29 September 2021 when questioned as to her whereabouts on 3, 8, 27 and 28 September, and her deliberate attempt to conceal driving the Respondent’s vehicle to the Tarong property;
· committing serious breaches of the Respondent’s Drug & Alcohol Policy (D&A Policy) by failing to report the charges and convictions for drug offences on 25 October 2021; and
· dishonesty in concealing that she had been charged and convicted of drug offences in circumstances where she was on notice of her obligation pursuant to the D&A Policy to report such charges or convictions to the Respondent as soon as possible.”
The Respondent claims that that each of the matters listed either individually or combined constituted serious misconduct and thus a valid reason existed for the Applicants termination.
The Applicant was given an opportunity to respond to the allegation prior to her termination.
The Applicant was requested to attend a meeting on the 24 November 2021 where she was confronted by the information the Respondent’s had received regarding the drug charges and conviction and that she had not informed the Respondent contrary to the Drug and Alcohol policy. The Applicant put forth that;
· the Applicant told the Respondent she had mislead police and ‘taken the wrap’ as
the drugs and drug equipment belonged to her husband.
· the Applicant accepted that she should have told the Respondent of the charges
and conviction.
· the Applicant was told that she had continued to drive to the Tarong property despite the First Direction and the Tarong property had now been associated with organised crime and had been under police surveillance.
· the Applicant admitted to continuing to drive to the Tarong property and said that
she did not know at the time that the property was used for drug trafficking.
Further the Respondent told the Applicant that by deliberately disobeying a direction by the Respondent by driving to the Tarong property the Applicant had caused or was likely to cause harm to the Respondent’s business.
The Applicant was told that the Respondent did not consider it could continue with her employment and offered the Applicant a further 24 hours to consider her position. The Applicant declined the offer of further time to consider her response but asked if she could continue until Christmas. This request was refused by the Respondent and the Applicant was dismissed.
The Applicant was paid two weeks wages to help her to meet living expenses during
the Christmas period.
Witness Statement of Joan Price
Mrs Joan Price is the owner of Kingaroy Freight Express which employs approximately 50 employees and operates a fleet of vehicles from Depots in Kingaroy, Brisbane, Richlands, Toowoomba, Mundubbera and Monto.
Mrs Price oversees all aspects of the operations and is responsible for staff induction. The operations are subject to the Heavy Vehicle National Law (Qld) which requires the operations to comply with risk and compliance and to mitigate hazards and risks to staff and other road users.
Her evidence was that Kingaroy Freight’s Drug and Alcohol Policy (D&A Policy) is a resource to mitigate hazards and risk and it is Mrs Prices’ practice to ensure that:
(a)all staff are provided with a copy of the D&A Policy at the commencement of their employment.
(b)all staff acknowledge they had read and understood the D&A Policy;
(c)she was familiar with the terms of the D&A Policy and the obligations of staff under the policy; and
(d)the D&A Policy is implemented, including by taking appropriate disciplinary action in the event of a breach or serious breach.
The Applicant was hired in early February 2020 as an administrative staff member and as she had a forklift and medium truck licence it was intended that she would also act as a back up driver. The Applicant had previously worked for a client of the Respondent and had a good understanding of the type of business the Respondent operated.
In about May/June 2021 the Applicant commenced delivery runs to cover other staff absences. On Friday 3 September 2021 the Applicant was scheduled to complete a run to Yarraman/Blackbutt. The Applicant requested a ‘special delivery’ to a customer due to the large quantity. Mrs Price duly authorised this delivery. The Applicant returned to the Depot approximately 60 – 90 minutes late. Mrs Price considered this was excessive and determined to review the vehicle tracking data.
The testimony of Mrs Price was that the tracking data revealed that the Applicant had made a significant deviation from her assigned route which added 15 kms to the total journey. During the deviation the Applicant had parked at the Tarong Property (46 Tanduringie Drive)
On the 6 September 2021 Mrs Price asked the Applicant about the trip on the 3 September and the Applicant offered no explanation. Mrs Price instructed/directed the Applicant not to deviate off the assigned route again nor make personal stops.
Mrs Price noted that the Applicant was delayed and returned late on the 27 September and the following day Carl Price and Mrs Price reviewed the vehicle tracking data. The data confirmed that on the 27 October 2021 the Applicant had driven to the Tarong Property and had driven at speeds in excess of 20km more than the designated speed limit. Further, that on 28 September 2021 the vehicle and the Applicant again retuned to the same property and on a further review of the vehicle logs the Applicant had driven to the property on the 8 September 2021.
Tracking data and manifests in evidence supported the allegations that the Applicant had continued to drive off the designated route and stop at the same property that she had visited on the 3 September 2021 in contrary to the specific direction of the respondent.
On 29 September 2021, Mrs Price spoke with the Applicant at the depot about what had
been discovered in the tracking data. Mrs Price informed her that tracking data showed that she had continued to drive into the Tarong area after she had been directed not to deviate from the assigned route or make personal stops.
The Applicant stated that she had a friend and met her on the side of the road. Mrs Price stated that it was not acceptable to meet with her friend on company time and furthermore the tracking data clearly showed that she did not stop on the side of the road but rather at the Tarong Property. Mrs Price told the Applicant that the delivery runs are time critical and that on this occasion she had deliveries that had to be made before a specific time. The Applicant insisted that that she met her friend on the side of the road in spite of the vehicle tracking data showing otherwise.
Mrs Price determined that the Applicant could not be trusted to do the routes on the Esk or Blackbutt runs and repeated her direction that she not deviate from the assigned routes or make personal stops. Mrs Price stated to the Applicant that she had lost trust in the Applicant and that she was not being honest about where the Applicant had been going.
On 1 October 2021 the Applicant was assigned a run to Wondai/Murgon and the Applicant made this run several times that week. The Mrs Price observed that the Applicant was delayed on most occasions returning from this run and so she reviewed the tracking data. The Tracking data confirmed that the Applicant had been making stops at her home address on multiple occasions outside lunch time.
Mrs Price spoke with the Applicant and informed her that due to her continuing to fail to follow a specific direction that she could not be trusted with driving duties and therefore she would be no longer assigned driving duties and her tasks would be confined to administrative duties.
Mrs Price gave evidence that the Applicant’s work performance began to deteriorate and there were some issues. Specifically, on the 12 October 2021, some damage to an item was raised by a client because of the item being dropped by the forklift driven by the Applicant. Mrs Price reviewed video footage and determined that the Applicant had been careless operating the forklift.
Mrs Price then decided to prepare a written warning letter regarding the unauthorised stops and deviation from the route as well as the Applicant’s work performance. Mrs Price did not issue the warning letter to avoid giving the Applicant more stress. At this stage Mrs Price did not know that the Tarong Property was involved with organised crime.
On or about the 25 October 2021 Mrs Price became aware the Applicant appeared in the Magistrates Court criminal list.
On 15 November 2021, Mrs Price had a conversation with the Applicant regarding her work performance. Mrs Price stated that the Applicant was making mistakes, that her productivity was an issue and that she appeared stressed at times in the office. The Applicant requested work outside the office which Mrs Price replied that she could not send her out on the road because of her deliberately disobeying her previous directions.
Mrs Price stated that she became aware over the weekend of the 20-21 November 2021 that a major police drug raid had occurred at the Tarong Property visited by the Applicant previously. Mrs Price was shocked and mortified that the company branded truck had visited and parked at the property suspected of being involved in organised drug trafficking. Mrs Price recalled that the Applicant had been charged with drug offences in late October. Mrs Price obtained a copy of the orders relating to the Applicant and discovered that the Applicant had entered guilty pleas to drug possession and drug paraphernalia and a conviction recorded.
Mrs Price considered that the Applicants failure to report the charges and/or convictions was a serious breach of the drug and alcohol policy. Mrs Price requested that the Applicant attend a meeting with herself to respond to her concerns that the Applicant had engaged in serious misconduct.
The Applicant attended a meeting on the 24 November 2021 and Mrs Price informed the Applicant that she had a copy of the Court record which recorded that she had been charged and convicted with drug offences on 25 October 2021. The Applicant stated that she had entered a guilty plea and had ‘taken the rap’ for her husband. The Applicant did not consider that the drug charges and conviction required her to report the charge and convictions to the Respondent. The Applicant apologised for the non-reporting. Mrs Price further raised the issue that the Tarong property had been the subject of a police raid which resulted in the seizing of drugs, weapons and money and the issuing of serious criminal charges to a number of persons. The Applicant denied that she knew that the property was used for illegal activities and said she was just visiting her friend.
Mrs Price indicated to the Applicant that her actions had put the Respondent in a difficult position and enquired if she would like 24 hours to consider her position. The Applicant requested that she be kept on by the Respondent till Christmas (two weeks) to prove herself. Mrs Price considered her response but that the matters were so serious as to warrant immediate dismissal for serious misconduct but given the circumstances, just prior to Christmas that the Respondent would pay two weeks’ pay.
Mrs Price had acknowledged that she had concerns that the Respondent’s business might become the subject of a police investigation for their branded vehicle being present at the so named ‘Drug House’.
Witness Statement of Shannon Ashcroft
Ms Ashcroft is the daughter of the owner of the business Ms Joan Price, she commenced in the business in 2017 and her duties include managing payroll and finances. She confirmed that all employees are provided with and inducted into the Respondent’s policies and further that each employee signs a written acknowledgement that they have read and understood the relevant policy. Evidence was provided that the Applicant had signed and returned the Drug and Alcohol policy upon her commencement with the business.
Ms Ashcroft confirmed that the Applicant had been employed to undertake administrative duties and act as a back-up driver. This required the Applicant to hold relevant heavy vehicle licences. The Applicant was assigned a delivery run in May 2021 to Blackbutt when the regular driver broke her wrist. On 6 September 2021 Ms Ashcroft viewed the vehicle tracking data with Mr and Mrs Price for the truck that the Applicant drove on the 3 September 2021. The tracking data revealed that the Applicant had driven off the route and stopped at the Tarong Property. The deviation and stoppage accounted for the Applicant adding 15 kilometres to her journey and being 60-90 minutes late on returning to the Depot. Mrs Price told Ms Ashcroft that she would speak to the Applicant and direct her not to deviate or make personal stops on a delivery run.
The Applicant again arrived late at the Depot on the 27 September 2021 and Ms Ashcroft viewed and saved the tracking data which showed that the Applicant had visited the Tarong property whilst making delivery runs on the 8th , 27th and 28th of September 2021. The Applicant was removed from the Blackbutt run shortly afterwards however continued runs in the Wondi/Murgon direction which did not go past the Tarong Property.
On the 1 October 20921 Ms Ashcroft observed that the Applicant had been absent from the depot for an extended time and so she accessed the tracking data which showed that the Applicant had made multiple extended stops at her home address. Following a conversation with the Applicant, Mrs Price informed Ms Ashcroft that the Applicant would no longer be undertaking any driving duties due to her continued personal stops.
On the 25 October 2021 Ms Ashcroft noticed in the online edition of the local paper that the Applicant would be appearing in the Kingaroy Magistrates Court. The Applicant attended work that day, Ms Ashcroft was unaware that the charges were drug related.
On 19 November 2021 the Applicant requested an advance on her pay as a result of a sudden financial difficulty, Ms Ashcroft was surprised as the normal pay would have arrived in her account the day before. The request could not be granted. That evening or over the weekend Ms Ashcroft read in the Courier Mail the headline ‘Major Meth Racket Busted’.
The article reported that following a five-month police operation on Thursday 18 November 2021 police raided a property in Tarong and were reported to have charged 57
people, and seized drugs, cash and weapons. They had also charged a man residing at the property with allegedly supplying over $20,000 of ice amphetamine in the area over the five-month period.
Ms Ashcroft on noticing the mention of a Tarong property in the article, undertook a number of searches online and discovered that the property raided was the same one that the Applicant had been diverting to off her route and stopping. Ms Ashcroft discussed this matter with Mrs Price and the fact that the Applicant had appeared recently in court they determined that they would seek further information from the court
The registry provided a copy of the Court record which showed that, on 25 October 2021, Ms Stephens was charged and entered a guilty plea for:
(a) possessing dangerous drugs, date of offence 3 October 2021;
(b) possessed utensils or pipes that had been used, date of offence 3 October 2021;
(c) contravened direction requirement of police, date of offence 11 October 2021.
Ms Ashcroft and Mrs Price and Mr Price discussed the new information and agreed that the non-reporting appeared to be a breach of the Drug and Alcohol policy. Further there may have been reputational damage having a company vehicle visit this property on a number of occasions. The breaches of Mrs Price’s directions were also brought back into focus and so it was agreed that Mrs Price would meet with the Applicant to discuss these matters.
The Applicant attended a meeting on the 24 November 2021and Mrs Price and Ms Ashcroft conducted the meeting. Mrs Price put forward that they had documents from the court that stated the Applicant had been charged and convicted of drug offences on the 25 October 2021. The Applicant stated that she had” taken the rap” for her husband. Mrs Price said that under the D7A policy the Applicant was obligated to report those matters to the Respondent. The Applicant stated that she had not thought about it at the time but could see that under the policy she should have reported the matter. The Applicant apologised for not doing so. The Matter of the Tarong Property was also raised and the Applicant.
Legislation
Section 387 of the Act provides that, in consideration whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a)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); and
(b)whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)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; and
(h)any other matters that the FWC considers relevant.
I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.[4]
The Respondent relies upon the following for the termination:
· in breach of the First Direction, being a reasonable and lawful direction, the Applicant drove the Respondent’s vehicle to the Tarong property on 8 September 2021, 27 September 2021 and 28 September 2021;
· the Applicant was dishonest in providing information as to her whereabouts on 3, 8,
27 and 28 September by attempting to conceal that she had driven the Respondent’s vehicle to the Tarong property when questioned on 6 September 2021 and 29 September 2021;
· in breach of the First Direction and Second Direction, which were reasonable and lawful directions, the Applicant made personal stops while on a delivery run on 1 October 2021;
· Non-compliance with the D&A policy, the Applicant did not disclose the drug possession
charges.
6.4 Any Worker who is charged with or convicted of the use, consumption, possession, manufacture, sale, purchase, transfer, distribution, or supply of any Drug must, as soon as practicable, notify their supervisor and the Depot Manager of:
(a) the fact that they have been charged or convicted; and
(b) the circumstances of the charge or conviction.
Failure to do so will constitute misconduct and may result in disciplinary action in accordance
with clause 11 of this policy.
Consideration
(a) whether there was a valid reason for the dismissal
To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[5] and should not be “capricious, fanciful, spiteful or prejudiced.”[6] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.
That test is to be applied in a common sense way to ensure that the employer and employee have both been treated fairly[7]. The question that the Commission must address is whether there was a good or sufficient reason, and a substantiated reason, for the dismissal.[8]
In cases relating to alleged misconduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the employee engaged in the impugned conduct.[9] Although the employer bears the evidentiary onus of proof, it need only satisfy the Commission that it is ‘more probable than not’ that the relevant conduct occurred.[10] The Commission is required to assess whether there was ‘a’ valid reason for dismissal, based on the evidence led at any hearing. It does this by reference to any valid reason(s) sought to be relied upon by the employer.[11]
The Applicant was charged and convicted for drug offences, which under the D&A policy, which is a reasonable one, requires the Applicant to disclose any charges or convictions. I find that she did not comply with the policy, one that she had read and signed that she had done so. The Respondent operates in the transportation industry, and it is reasonable that they require disclosure to mitigate any possible risk on the road.
I find that Mrs Price directed the Applicant not to deviate or stop on the 6 and 29 September 2022. The Applicant continued, contrary to, and in defiance of the reasonable direction not once but several times. The Applicant has made no concessions or disclosures as to her reasons for the departure from the clear and unambiguous directions of her employer. Given the deceptive conduct that she undertook, the Respondent confirming her continued departures in the tracking data (which was not disputed) changed her pattern of travel and ultimately decided to remove the Applicant from all the back-up runs due to her continued refusal of a reasonable and lawful direction.
The Respondent, rightly, after considering her conduct in the light of the drugs charges identified not only an unwillingness of the Applicant to follow lawful and reasonable directions but that there may be reputational damage as their truck which was clearly identifiable had been driving off the route and past customers and possibly observed by police surveillance outside the residence where illegal activities were conducted.
The Applicant would like to characterise the off route as, performance infractions, however they were the subject of clear directions Mrs Price made it clear on the 6 September after examining the tracking data that the Applicant was not to stop or deviate from her route. Then again on the 29 September 2021 after reviewing the tracking data which again confirmed that she had made stops and deviated Mrs Price reiterated her directions to not stop or deviate.
The allegations put by the Respondent were not related to the use of drugs at work, that was never the subject of an allegation, they did not require the Applicant to undertake a drugs test as the Respondent did not make any allegations regarding the use of drugs at work. The allegation squarely put to the Applicant, and I find occurred was that she was in breach of the Drug and Alcohol policy by not reporting any drugs charges or convictions. The Applicant maintains that she was not aware of the policy clause that required this, that is no excuse and a convenient misdirection, as the evidence shows that she signed for receiving, reading and understanding the D&A policy. The Applicant had breached a significant and serious policy requirement and had continued in contravention of a specific direction by the Respondent to not deviate nor make personal stops during work time.
In my view, the breach of the policy was a valid reason for the dismissal and further I find that the continued refusal to follow the reasonable and lawful directions of Mrs Price a further valid reason. An additional concern I have is that the Applicant has lied to the court when she claims to have taken the rap for her husband and plead guilty.
(b) and (c) whether the person was notified of that reason and had an opportunity to respond
Subsections 387(b) and (c) of the FW Act require consideration of whether an employee was notified of the reason for the dismissal prior to the decision to dismiss being made, and whether the employee was given an opportunity to respond to that reason.22
Based on the evidence provided and the submissions made, I am satisfied that the Applicant was made aware before her termination of the concerns the Respondent had regarding her conduct. The Respondent at the meeting on the 24 November 2021 put the matters to the Applicant and told the Applicant that the Respondent considered she had engaged in misconduct, outlined the details of the misconduct and asked for the Applicant’s response. The Applicant admitted to the alleged misconduct conduct. The Respondent told the Applicant they intended to take disciplinary action which was likely dismissal and offered the Applicant a period of 24 hours to further consider her position, which the Applicant declined. The Respondent proceeded to dismiss the Applicant for serious and wilful misconduct.
This weights factor weights positively in favour of the dismissal being not unfair.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
The Applicant was not refused a support person and was afforded 24 hours to consider her position. The Applicant could have brought a support person should the Applicant have
wished to do so on 24 November 2021 or the next day. This weights positively in favour of the termination not being unfair.
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
This is not a factor to be considered in this matter as the termination was over allegations of misconduct and not performance related.
(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed
The Respondent’s business has under 50 employees and a small administrative function without dedicated HR personnel. The Respondents followed a process that considering the business size was reasonable. This factor weighs in favour of finding the dismissal was not unfair.
(h) any other matters that the FWC considers relevant
The Applicant did not have a long period of service and was paid two weeks despite the termination being regarded by the Respondent as serious misconduct.
Conclusion
There was a valid reason for the Applicants dismissal the other factors I must consider under s386 are not weighted against a finding of unfairness.
I therefore order that the matter be dismissed.
DEPUTY PRESIDENT
[1] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618
[2] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268, [48]
[3] Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 at [36]
[4] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
[5] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
[6] Ibid
[7] Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 at 372
[8] Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878 at [36].
[9] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
[10] Law v Groote Eylandt Mining Company Pty Ltd T/A GEMCO [2018] FWC 1824
[11] Livingstones Australia v ICF (Aust) Pty Ltd [2014] FWCFC 1276; (2014) 240 IR 448 at [64]-[66], Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at [10] and [14], King v Freshmore (Vic) Pty Ltd (Print S4213); [2000] AIRC 1019 at [24] and B, C and D v Australian Postal Corporation [2013] FWCFB 6191; (2013) 238 IR 1 at [34]
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