Bruce Steenstra v J.J. Richards and Sons Pty Ltd

[2015] FWC 7918

[2015] FWC 7918

FAIR WORK COMMISSION

DECISION

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

Bruce Steenstra
v
J.J. Richards & Sons Pty Ltd
(U2015/4669)

DEPUTY PRESIDENT SAMS SYDNEY, 18 NOVEMBER 2015

Termination of employment – waste collection driver – application for an unfair dismissal remedy – dismissal for poor work performance – failure to meet productivity targets over an extended period – numerous warnings - whether productivity targets unreasonable and unachievable – other Drivers able to meet productivity targets – surveillance – applicant’s explanations –targets not unreasonable – mitigating factors – no issues of procedural unfairness - dismissal not ‘harsh, unreasonable or unjust’ – application dismissed.

BACKGROUND

[1] Mr Bruce Steenstra (the ‘applicant’) was employed as a Waste Truck Driver by J.J. Richards & Sons Pty Ltd (the ‘respondent) pursuant to a waste collection contract the respondent has with Toowoomba Regional City Council (the ‘Council’) in Queensland. The applicant is a 58 year old truck driver who commenced employment with the respondent on 18 February 2013 and was dismissed on 2 April 2015 for poor performance and a failure to follow management’s instructions. The applicant is a member of the Transport Workers’ Union (the ‘Union’) and the Union represented him in this proceeding.

[2] The applicant’s termination of employment letter said, inter alia:

‘As discussed at our meeting on the 02/04/15, you have failed to meet you [sic] obligations as JJ Richards SOLO driver by not meeting your reasonable performance targets set by management. We believe this demonstrates that with all additional training and assistance we have provided to meet your targets, you have continued to fail in achieving these reasonable performance figures.

This is not the first incident of this type that you have been involved in. You have received one verbal warning, two written warnings and one final written warnings with regards to performance:
i. Written Warning 23-9-14: Performance, failure to follow instructions,
ii. Written Warning 20-11-14: Performance & failure to follow instructions,
iii. Final Written Warning 10-03-15: Performance, failure to follow instructions.

You have been on notice since the 10-3-15 that your employment may be terminated if you were involved in any further similar incidents. You have nw failed to meet these targets in the 2 week period agreed to in the final otice on the 10-3-15. As a result of this continued patter of non-compliance with procedure, we have decided to terminate your employment effective 02-04-2015.

You will not be required to work out your notice period and will be instead paid 2 weeks’ notice in accordance with law. You will be paid all accrued entitlements in accordance with law.’

[3] On 9 April 2015, the Union filed an unfair dismissal application with the Fair Work Commission (the ‘Commission’) on behalf of the applicant, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Shortly stated, the applicant seeks reinstatement and orders for lost remuneration. He claims that the productivity targets set by the respondent were unreasonable and unachievable and, accordingly, his dismissal for poor performance was ‘harsh, unjust and unreasonable’, within the meaning of s 387 of the Act.

[4] The application was the subject of a conciliation conference on 1 May 2015, but no settlement of the matter was achieved. The matter was listed for arbitration before me in Brisbane on 17 and 18 August 2015, with Mr A Carter, the Union Assistant Branch Secretary, appearing for the applicant and Ms K Tierney, General Counsel, appearing with Ms L Rich for the respondent.

[5] At this juncture and pursuant to s 396 of the Act, I can dispose of any preliminary issues by making the following findings:

(a) the applicant’s unfair dismissal application was lodged within the 21 day statutory time period, set out in s 394(2)(a) of the Act;
(b) the applicant was a national system employee and the respondent is a national system employer, as defined (ss 13, 14);
(c) as the respondent is not a small business, the Small Business Fair Dismissal Code is not relevant in this case (s 396(c));
(d) the applicant’s dismissal was not a case of genuine redundancy (ss 382, 396(d));
(e) the applicant was a person protected from unfair dismissal in that:

(i) he had completed the minimum employment period (s 383);
(ii) his employment was covered by Waste Services Management Award 2010 [MA000043].

The only matter left to be determined by the Commission is whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b) of the Act).

THE EVIDENCE

[6] The following persons gave written and oral evidence in the proceeding:

• The applicant;



• Mr Craig Williams, Organiser for the Union;



• Mr John Lilley, a private investigator of Redi Services – Process Servers and Private Investigations;



• Mr Nathan Bond, Domestic Contracts Manager – Toowoomba and Lockyer Valley Regions for the respondent;



• Mr Thomas Richards, Toowoomba Branch Manager for the respondent



• Mr Matthew Schoemaker, Chief Information Officer for the respondent;



• Mr Christopher Sikorski, Driver for the respondent;



• Mr Brian Garthe, Driver for the respondent;



• Mr Anthony Thornton, Driver for the respondent;



• Mr Ronald Wilkes, Driver for the respondent; and



• Mr Joshua Halter, Driver for the respondent.

The applicant

[7] Mr Steenstra has a long history of driving trucks and has held a multi-combination truck licence for around 38 years. He has delivered general freight and driven fuel tankers, tippers to deliver sand, gravel, building products and grain and side tippers delivering mining ore. Prior to working for the respondent, he had driven and operated a Heavy Rigid Vacuum truck for a liquid waste company.

[8] When he was first employed by the respondent, the applicant was initially engaged as a green waste Driver (as distinct to general waste and/or recycling). He said that he did not receive a copy of his letter of appointment or a contract of employment at the time, although he could recall signing a lot of documents on his first day. On that day, the applicant spent two hours in a recycling truck with another Driver, one hour of observation, then another hour operating the truck under supervision. He achieved a tipping rate of 84 bins per hour (BPH). The applicant believed he should have spent more time ‘buddied’ with another Driver, but there were insufficient Drivers available in the yard. On his first two days, the applicant completed a number of online training modules, including:

• manual handling;



• truck awareness;



• how the truck worked;



• power lines; and



• fatigue management.

[9] The applicant recalled hearing of a ‘union sanctioned’ tipping rate of 161 BPH. However, green waste tipping rates ranged from 60-100 BPH with an average of 80. This was because green waste bins were generally placed further apart than other bins. The applicant said that he sometimes assisted on other runs and he could easily manage 170-180 BPH, if doing no bin maintenance. Around March 2014, the applicant was transferred from green waste to general waste collection on a set run (Run 2), which included bins in local parks. He understood from other Drivers in the yard that 161 BPH was a standard benchmark. He emphasised that he had not been consulted, or told about any bin tipping targets when he commenced general waste duties.

[10] The applicant detailed his pre-run duties and the operation of the j-Track system - an on-board computer system which tracks and monitors truck activity. Each run is preset by j-Track and identifies where Council, street, park and infirm bins are located (Infirm bins are those used by residents not well enough to take out and collect their bins). When the truck approaches a bin, j-Track sounds a warning to alert the Driver. The system records the bin count, but the count is stopped when Drivers are on a break, if there is a truck breakdown or when the load is tipped. J-Track is programmed in accordance with fatigue management regulations and relies on the Driver to stop and start the count at the beginning and end of a break. The system records whether or not a Driver takes the minimum breaks, which is emailed to the yard to advise the manager if a Driver has not taken the required break/s. Drivers may be subject to disciplinary action if they do not take their breaks. The applicant said that the j-Track bin count does not stop for bin repairs, putting down new bins, doing infirms, park bins, street bins, spills or jams. Missing bins or repairs can be reported and then registered on a worksheet which is recorded in a separate report.

[11] The applicant described the method of tipping the bins. It is sometimes difficult due to parked cars or other obstructions. If all the refuse does not come out, the bin is left on the arm for longer and the Driver does a ‘double strike’. It is a Council requirement for all bins to be left upright and if any have fallen over, the Driver must get out of the truck and put them upright on the nature strip. If a bin is damaged, the Driver is required to repair it if it is a relatively simple job, such as replacing a lid or wheels. This could take up to 5-6 minutes. All repairs and replacements are reported and recorded. In addition, attending to spills can take 3-5 minutes. Drivers are also required, when collecting infirm bins, to collect the bin from the resident’s property, empty it and return it to the property. Missed bins can also drastically reduce the bin rate. The applicant explained that residents often complained that their bin was not tipped, when they had not actually put it out. This is checked through the truck’s CTV and if the bin was legitimately missed, the Driver must go back and service it. Trucks are also required to tip the refuse during the runs, if the weight exceeds its legal limits. The truck tipping mechanism can also ‘jam’, which requires the Driver to turn off the engine and clear the ‘jam’. The bin counter does not stop in these circumstances.

[12] The applicant set out the following factors which can affect the tipping rate on the same run, on different days, and which are not taken into account in the j-Track system:

• the number of damaged bins requiring either repair or replacement;



• whether there is a requirement to return to an area to collect missed bins;



• the number of times the Driver has to get out of the truck to deal with a bin which has fallen over;



• the number of times the Driver has to get out of the truck to deal with a spill;



• the number of times the Driver has to get out of the truck to reposition bins for tipping because they are either too close together or are obstructed by parked cars or other obstacles;



• the number of ‘jams’ on the truck and the time taken to clear them;



• bad weather;



• traffic, including peak times and road works;



• whether the truck is functioning normally;



• type of garbage – for example, wet grass clippings take longer to tip as they tend to be heavy and stick to the bin, meaning the bin has to be left on the arm of the truck for longer or be ‘double struck’ and re-tipped.

[13] The applicant described his post run duties, which included refuelling, washing, checking and tidying the truck and handing in his paperwork.

[14] The applicant detailed the meetings he had with management from June 2014. On 23 June 2014, Mr Bond told him his tipping rate was not good enough and needed to improve. After explaining that his rates were ‘ok’, Mr Bond did not accept his explanation as to the additional tasks he was required to perform. Mr Bond said all Drivers had to do the extra tasks and younger Drivers were doing much better than him.

[15] The applicant attended a performance review on 11 July 2014 with Mr Bond and Mr Chris Hielshier (Leading Hand, Relief Driver) in which he was told that his tipping rates had not improved. He was shown daily tipping rates which disclosed an average of 151.9, 148.1, 157.2, 156.5 BPH. He believed his rates were ‘ok’ and did not reflect on his work performance. Mr Bond disagreed and told him that Mr Hielshier was to do his run with him for a week, so that he could pick up pointers on how to improve. Mr Bond told him that he must meet Mr Hielshier’s standard or improve on it.

[16] In the week of 14-18 July 2014, when he ‘buddied’ with Mr Hielshier, his average was 163.5 BPH. During the week, the applicant recorded six new bins, one lid repair, one spill and one jam. After this week, he continued to record the variations on his run. For the first two weeks of September, he exceeded the target set by Mr Hielshier, despite more variations (15 new bins and one more jam).

[17] The applicant attended a disciplinary meeting on 24 September 2014 with Mr Bond. Because he felt that Mr Bond was unfairly targeting him, he requested that Mr Tom Richards (Director, Toowoomba Region) attend. Mr Bond indicated that there were ongoing problems with his performance. However, he pointed out that he had exceeded Mr Hielshier’s tipping rate in the first two weeks of September 2014 - 163.9 BPH and 173 BPH respectively. The applicant said both Mr Bond and Mr Richards acknowledged that his tipping rate had improved and was very good, but drew his attention to his ‘truck hours’ when he was ‘buddying’ with Mr Hielshier. Mr Bond told him that he had claimed 45 hours in the week he spent with Mr Hielshier, but was now claiming 50 hours a week. He explained that he had not undertaken pre and post run duties when he worked with Mr Hielshier and would do repairs on the way to the tip. The applicant said that Mr Richards then became very angry and said that was not how he was trained and it cost the company extra in fuel and wear and tear. He was given a written warning and lost his monthly bonus.

[18] Mr Bond insisted that he maintain the 163.5 BPH target and continue to do bin repairs on the run. The applicant claimed he felt attacked in the meeting (over his ‘wages’ time) and was so stressed that he forgot to mention his truck had gone in to the dealer for warranty work, three times in the previous fortnight for transmission problems. This time of 15-20 minutes each way to the dealer was recorded as ‘truck time’ and not ‘tipping time’. The applicant said he received no further training after this warning. He had not been previously told he could not do bin maintenance after the run was finished and when he was on the way to the tip.

[19] On 20 November 2014, the applicant attended a further disciplinary meeting with Mr Bond and Ms Sharon Bowers (Administration Manager). He was told that Mr Hielshier had performed his run while he was on annual leave and on a Tuesday had averaged 256 BPH per hour. The applicant did not believe this rate was possible given the run has six infirm bins, nine park bins and three street bins. He referred to his own rate of 163.5 BPH set in the week of 14 July 2014 and showed Mr Bond his figures for the week of 10 November 2014, where his average was 162.3 BPH and he had put down 17 new bins, did 17 bin repairs and had three ‘jams’. Mr Bond told him to stop making excuses, that variables were factored in and challenged whether he was following the j-Track route (set by Mr Hielshier). He said he was not intentionally not following j-Track. He demonstrated it was not possible to follow j-Track in the manner in which Mr Hielshier had set it up. Mr Bond accepted this, but still told him he must improve his figures and reduce his wages hours. Mr Bond focused on the week of 3 November 2014, which had an average rate of 159.8 BPH. The applicant showed Mr Bond and Ms Bowers his own figures. This seemed to annoy them. He pointed out that in that week, he had put down 16 new bins, did 15 lid repairs, one wheel repair, had two spills and three ‘jams’. Mr Bond was dismissive of his figures. He said it was irrelevant and that his figures ‘are still bad’.

[20] Mr Bond then gave the applicant the following targets:

To reduce his truck hours:

• Monday, from 9.7 to 9 hours;



• Tuesday, from 8.2 to 7.5 hours;



• Wednesday, from 9.5 to 8.5 hours;



• Thursday, from 9.6 to 8.5 hours; and



• Friday, from 8.8 to 8 hours.

To improve his tipping rates:

• Monday – 140 (134)



• Tuesday – 190 (200)



• Wednesday 172 (173)



• Thursday – 155 (139)



• Friday – 200 (185)

[21] The figures in brackets were the targets set in the week of 14-18 July 2015. The applicant believed that this demonstrated that his BPH count had increased to 171.4 from 163.5 BPH. The applicant was also directed not to perform any work after ‘clocking off’. The warning was downgraded from a final, to a written warning and he lost one month’s bonus.

[22] In a review meeting on 4 December 2014, Mr Bond presented the applicant with figures which represented a weekly average of 178.6 BPH. While he had not quite achieved the wages hours target, Ms Bowers said it was ‘close enough’. He said he undertook no reported bin repairs or replacements. Mr Bond challenged him on this and insisted that bin maintenance must be done and will have no impact for the tipping rates. The applicant pointed out that on Monday 1 December, he had five new bins and did three lid repairs and averaged 135 BPH. He believed he had demonstrated that he could exceed the target by achieving 177.1 BPH, but he could not sustain this and continue to do bin maintenance. A further review meeting arranged for 4 January 2015, did not take place.

[23] On 11 March 2015, the applicant attended another disciplinary meeting with Mr Bond and Mr Jason Doig (Trade Waste Manager) and with a Union Organiser as his support person. When he was shown his BPH rates for February 2015 of 158, 157 and 155, he tried to explain other variables, such as ‘jams’ and spills and extra trips to the tip, but Mr Bond insisted the targeted bin rates can be met, with the other tasks included. The applicant raised problems with his truck’s cooling fan, which affected the speed of the truck and the time it took to tip. He said he had reported it, ‘many times’. The meeting was adjourned to allow Mr Bond to check this claim and when he returned, he said only two reports of the truck’s problem had been recorded. Mr Bond told the applicant that he had two weeks to meet the target of 170 BPH, including bin maintenance, or his employment would be terminated. The applicant protested this outcome as unfair and indicated that he wanted to take his grievance further. He was given a final warning. He later found problems with his truck recorded in the fault book on six occasions in the past year.

[24] At his dismissal meeting on 2 April 2015, Mr Bond read from his letter sent to the applicant the day before, which included the following:

‘This letter is to notify you that we require your attendance at a disciplinary interview on the 02 April 2015 at 0800 am, which is to be held at the Toowoomba depot with Nathan Bond, Tom Richards and/or Jason Doig. The purpose of the disciplinary interview is to discuss your alleged failure to meet performance targets as required by management in your role as SOLO driver at J.J. Richards. Specifically, it is alleged that:

• Continued underperformance: You have failed to achieve the required performance levels for daily and weekly average bins per hour over the last 2 weeks as set forth in the disciplinary meeting on 11 March 2015.

The above allegations are very serious and, as such, J.J. Richards is considering terminating your employment as a result. At the disciplinary interview, you will be given the opportunity to respond to the above allegations and will be asked to provide any reasons why you consider your employment should not be terminated. J.J. Richards will then make a final determination regarding the future of your employment with the company.’

[25] The applicant agreed with the figures Mr Bond referred to for the past two weeks and the applicant read a prepared list of factors affecting bin tipping rates. Mr Bond said that all Drivers faced these factors and they should have no impact on the tipping rates. The applicant referred to his excellent attendance record and his attendance for work on time. He could not believe he was ‘going through all this for a few bins per hour’. Both Mr Richards and Mr Bond acknowledged that he was a ‘good guy’, with a good attendance record and no sick leave. He was reliable and got on with the other guys, but ‘solo tipping was just not your thing’. He was dismissed with immediate effect, with two weeks’ pay in lieu of notice. The applicant requested his sick leave paid out (as some of the other older employees had), but this was refused.

[26] The applicant identified some twenty jobs for which he had applied since being dismissed. He had earnt $1,400 mowing lawns and applied for Centrelink benefits with the first payment of $136.20 received on 25 May 2015. Registering with Centrelink required that he look for twenty jobs per month. He had been complying with this, but with no success.

[27] Through the applicant, Mr Carter tendered his written contract of employment, Relevantly, it described his position description as follows:

‘The employee is employed as a driver, but may be required to perform other tasks at the manager’s or supervisor’s discretion. The employee is not permanently assigned to any particular equipment, specific vehicle, unit or scheduled run. The employee may be required to use varying equipment and perform duties within the scope of the assignment that may differ from those initially undertaken on appointment as directed by JJR from time to time.’

[28] Mr Carter also tendered weekly j-Track records for all Drivers on Run 2 for 36 weeks from 1 July 2013 to 21 March 2014. These records disclose an average BPH count of 156.4 during this period.

[29] In further evidence, the applicant said that he was aware that both Mr Sikorski and Mr Hielshier had a practice of running from the truck to the bin, from the bin to the truck, emptying it and running it back. It was not his practice. The applicant believed that it was unusual for Mr Sikorski to have commenced work before the default start time of 6:00am. If he had started at 5:39am on Friday 17 April 2015, he would have donated 21 minutes of his own time to the Company. While this would not have affected his tipping rate, it most certainly would have an impact on the work hours that day. The applicant was aware of other Drivers, who adopted the practice of doing their pre-starts, leaving the depot and being on site, ready to tip at the default start time. He did not know why they did this.

[30] The applicant accepted that Drivers were expected to repair a damaged bin, if they had the necessary resources on the truck. Each truck could carry four new bins, five lids and items such as axles, wheels and pins. The applicant said that generally, he might replace three bins and repair 4-5 lids each day. This could take a few minutes each time.

[31] The applicant said the concerns with his tipping rate started around June 2014. He explained the purpose of ‘buddying’ with Mr Hielshier. The targets set by Mr Bond were 171-172 BPH. The purpose of the meeting was to set a target based on Mr Hielshier’s performance. He did not sign his warning meeting outcomes as an acknowledgement of agreement with Mr Bond’s view, but because Mr Bond told him that signing the warnings was merely an indication he had attended the meeting. The applicant said he was never explicitly told not to go back over his run to do repairs.

[32] The applicant said that he was told his rate was 170 BPH and then when he returned from holidays it was increased to 172 BPH, based on rates the Relief Drivers had achieved during his absence. The applicant said he was unaware of a practice of some Drivers not taking a break at park stops and emptying bins instead, so that 15 minutes were included in the tipping rate when the Driver should be taking mandatory breaks.

[33] The applicant described a verbal incident he had with Mr Bond on 21 February 2014. He said he did not want to argue with Mr Bond at the time and told him to put his concerns on paper. He denied he was disrespectful towards him.

[34] The applicant described the process of removing a ‘jam’ while at the same time exaggerating or inflating productivity. This could be done by exaggerating the ‘jam’ time while tipping and being counted when the truck is not recording any time for the tipping.

[35] The applicant denied that his targets were always the same. He insisted they were increased when he came back from holidays. He said that it was made clear to him that if he did not succeed as a solo Driver, there were no other job opportunities for him at J.J. Richards. However, this was incorrect, as there were a number of other roles he could have performed, including skip bins, yard work and delivering industrial bins and collecting green waste. He would have accepted any other job offered to him. By reference to his last group certificate, the applicant earned $63,500 in the 39 weeks prior to dismissal, averaging $1,620 per week.

[36] The applicant said he had given evidence to the RSRT inquiry into the waste sector on 16 July 2014. His evidence concerned the pressures on Drivers on meeting targets and bonus requirements.

[37] In cross examination, the applicant was asked about his meetings with Mr Bond in 2014. He could not remember Mr Bond setting him a BPH of 171-2 on 3 April 2014, notwithstanding, it was set out in the later counselling document he had signed. The applicant believed he may not have read the document as it was prefilled in and, in any event, Mr Bond told him that signing the document did not mean he agreed with its contents.

[38] The applicant was asked why he did not complain, through the grievance process, that he was being ‘infringed’ for not reaching targets of which he was not aware. He replied he had always made clear his view that it was incredibly unfair. At the time, he was comfortable that Mr Herlshier was going to demonstrate what his target should be. The applicant acknowledged that he was keeping his own records of how many infirm bins, park bins and street bins and calculating his own tipping rates around this time. He did this in his own time, not to prove j-Track wrong, but to demonstrate the variables affecting his performance. He denied making his own records while he was working, although he admitted to doing so for ‘a minute, maybe less’. He agreed he could have relied on the respondent’s records for this anyway. He also recalled telling Mr Bond that stopping at traffic lights impacted on the tipping figures.

[39] The applicant believed Mr Bond had been targeting him and putting him under pressure by requiring him to attend five formal meetings in six months to talk about his BPH rate. He accepted that doing bin maintenance after the run improved the tipping rates and as that was the focus, he decided to do the bin maintenance after the run. He was not exaggerating his hours, but using an opportunity to keep his bin rate up. He did not accept that this meant going back over the run he had just completed, he was just doing it on the way to the tip. He conceded that Mr Bond and Mr Richards (angrily) told him not to continue this practice. However, he had not previously been told not to undertake this practice.

[40] The applicant explained that the transmission problems with his truck went back to 2014 and had caused the truck to slow down. He had recorded eight incidents, although Mr Bond could only find two recorded in the system. The applicant was aware of the problem, because he had previously worked as a mechanic, although he had not completed an apprenticeship. He did not raise this issue at the time, as it would only have had a slight impact on his tipping rates. Nor had he sought more time to prepare his defence for the 24 September 2014 meeting, because his tipping rates had improved and he ‘was not expecting this meeting to get ugly’. He had had confidence in Mr Richards, but the meeting did not turn out well. He then sought the Union’s assistance. He agreed that neither he, nor the Union, had lodged a grievance about the matter, despite knowing where to view the grievance policy.

[41] The applicant was asked about the period he was on annual leave (6-24 October 2014), when Mr Hielshier achieved 172 bins per hour on his shift. While the applicant believed this was achievable without doing bin maintenance, Mr Hielshier achieved this result and did twelve bin repairs and three bin replacements. The applicant pointed out that he had informed Mr Bond that his run in the j-Track system was not the same as it was previously. Adjustments were made and Mr Bond simply told him to follow the j-Track system.

[42] It was the applicant’s evidence that management encouraged Drivers to undertake bin maintenance. He estimated an average of 2-3 minutes for each maintenance task. The applicant estimated a total of 15-20 minutes for bin maintenance during the course of a run. He believed bin maintenance was less of a priority for Relief Drivers. He acknowledged that he had never received an infringement notice for not performing bin maintenance appropriately, or replacing a bin when required. As he ‘owned’ the run, it was his desire to keep the bins in good repair. He agreed that going back to pick up a missed bin, would affect productivity.

[43] During the surveillance exercise on 7 and 14 May 2015, the applicant witnessed bins left tipped over and missed bins. The target set for those days was 155 BPH, but the Driver achieved 163 and 160 BPH respectively. The applicant agreed that for most weeks, he had not achieved the target of 170 BPH. However, he was not ‘infringed’ or otherwise penalised when he had not achieved the target of 170. He was not suggesting that Mr Bond was setting unreasonable targets. Rather, Mr Bond refused to accept that bin maintenance had an adverse effect on tipping rates because other Drivers were subject to the same requirements and met their targets.

Mr Craig Williams

[44] Mr Williams has oversight of the Union’s organising activities in the waste management sector. He had ten years’ experience himself as a waste truck driver working on a contract to Brisbane City Council. He described the side loader truck as a very sophisticated vehicle in terms of dual driving controls, controls to operate the side arm loading device, cameras and electrical displays. Mr Williams added that side loader drivers must constantly be on the look out for vehicles and pedestrians, with a number of serious incidents recorded in recent years. Drivers must also take care with the vehicle and its controls, in order to minimise expensive damage. Mr Williams concluded that Drivers must perform their work in a methodical manner, without rushing. In describing the operation of the truck, Mr Williams said that the bin must be returned to the nature strip, while ensuring that it remains upright and no waste is spilt. Spilt waste should be picked up by the Driver. Drivers are also required to repair and replace bins.

[45] Mr Williams said that in his experience, local Councils insist on high standards from the contract company, otherwise resident complaints become common. Most Councils also have a policy to collect bins from ‘infirm’ residents. Most Councils also require the waste service provider to service Council bins in parks and on streets where there are ratepayers. This involves the Driver getting out of the truck and manually collecting, emptying and returning the bins.

[46] Mr Williams described some of the many factors which affect the rate of bin collections. These include:

a. The density of the housing in which the service is being performed. In an area of medium or high density housing a driver can collect many bins more quickly because there is only a very short distance between each bin. In contrast, it can be a very long distance between each bin in rural areas.
b. The layout of the streets - it is more difficult to collect bins in an area with a high number of cul de sacs. This is because it takes more time to manoeuvre the truck into the right position and then extend the collection arm to the bin and return it to its position.
c. The amount of traffic and parked cars (this is affected by the time of day).
d. The number of bin repairs and replacements required on a given day.
e. The number of infirm services, Council, park and street bins required to be serviced in an area.
f. Equipment or vehicle breakdown and jammed equipment.
g. The number of trips to the transfer station that are required. In summer months there is generally a lot more waste to be collected than in winter months.
h. Weather conditions (bad conditions can reduce tipping rates).
i. The skill of the Driver in operating and looking after equipment.
j. The level of care and attention of the Driver in ensuring that bins are serviced to the required standards.
k. The level of care and attention of the Driver in ensuring the safety of himself, pedestrians and other road users.

[47] In his experience, Mr Williams said that the same Driver on the same route can achieve a high bin collection rate in one week and a lower collection rate the next, due to the above factors and others. Mr Williams believed that Drivers with high bin collection rates, are usually compromising quality of delivery, safety or both, by:

• leaving bins overturned;



• not picking up spilled waste;



• running when servicing the bins for infirm ratepayers or in parks;



• deliberately failing to collect some or all Council park and street bins;



• not repairing or replacing damaged bins;



• failing to keep a proper lookout; and



• failing to look after the side loading equipment.

[48] In his Union duties, Mr Williams negotiates enterprise bargaining and other productivity targets for the following companies which have contracts with Councils in Queensland:

• J.J. Richards;



• Transpacific Industries;



• SITA Australia (now Suez);



• Redmondis; and



• Veolia.

[49] While the Union does not object to group or team productivity targets (which translate to bonuses to employees), Mr Williams said that the respondent was the only waste collection company that sets individual productivity targets and where a failure to meet targets may result in a loss of bonus as well as disciplinary action, which can include termination of employment. He noted that Transpacific does provide for individual productivity targets, but without disciplinary sanctions and where targets vary according to each run. He said that SITA employees are required to meet a team target of 144 BPH averaged over the entire day, including trips to the transfer station and back. The Brisbane City Council Contract Drivers generally achieve high bin rates due to the higher housing density in the city. They do not perform bin repairs or service park bins. Mr Williams said that in his work experience with SITA and Cleanaway, new Drivers undergo a month of on truck instruction with another experienced Driver.

[50] Mr Williams believed that a team productivity measure balances out slower and faster Drivers and ensures individual Drivers are not put under pressure to compromise on quality or safety or cause accidents when they are concerned about losing their job. Mr Williams added that individual productivity targets must be consistently achievable over a period longer than a week. There might be some weeks in which:

a. The weather is fine;
b. Traffic is light and there are relatively fewer parked cars;
c. There are relatively few infirm services;
d. The operator does not service all Council park and street bins;
e. There are no or a relatively small number of breakdowns or equipment jams;
f. There are low volumes of waste due to the time of the year;
g. There are relatively few bin repairs and replacements; and
h. The operator is not having due regard to safety and the care of the equipment they operate.

[51] It was Mr Williams’ view that, to be fair to the individual Drivers, targets must be subject to constant review to take account of many variables. One way of doing this would be to set out a ‘range’, rather than a specific target. Mr Williams noted that the Union intended to raise the issue of unachievable individual productivity targets during an inquiry by the Road Safety Remuneration Tribunal (RSRT) into the waste sector of the road transport industry to be heard later this year.

[52] In cross examination, Mr Williams agreed that he had no experience in implementing performance based measures in respect to productivity and efficiency in the industry. However, from his experience, Drivers primarily ‘cut corners’ in their work for two reasons – to get home early or to meet the pressures from management to meet targets. He acknowledged that there were a small number of Drivers who have a natural ability to go quickly, others who are slow and the majority who are in the middle.

[53] Mr Williams did not dispute the respondent’s right to set individual performance targets, provided they are fair and reasonable. He had undertaken an exercise, from his experience at Cleanaway on the Brisbane City contract involving 56 Drivers. 10-12 had significantly better than average rates, 5 or 6 were very slow and the remainder were in a range in the middle. Mr Williams believed on the basis of a one week training course and his own experience in the industry that individual bin targets are unsafe. He did not accept that the industry’s various players adopted different targets and had different expectations. All the companies were mostly doing the same basic functions - collecting refuse from bins.

[54] After viewing the video surveillance, Mr Williams offered his view that Mr Sikorski was operating unsafely by running between bins. He agreed that he had not observed Mr Sikorski slip or trip. Mr Williams accepted that Mr Sikorski was also a personal trainer. He did not believe the respondent gave any direction to Mr Sikorski to work in that way. Nevertheless, Mr Williams understood the respondent’s duty of care obligations under the Work Health and Safety Act2011(Qld). He conceded he had not performed a formal risk assessment in relation to a Driver running to pick up and return bins. Even so, Mr Williams said it was not ‘rocket science’ that running puts more pressure on the body than walking and increases the risk of injury by slipping and tripping. He acknowledged that a person’s fitness level was also a relevant factor. He accepted a proposition that he had no probative evidence to demonstrate that running was less safe than walking. It was just his opinion. He also acknowledged that there are still risks with walking, but if all of the protocols were followed, the employer would have done its best to provide a safe working environment. He conceded it was not possible to ‘engineer out’ all risks. Mr Williams also agreed that Drivers may bring family or personal issues to work and this may affect their performance.

[55] Mr Williams was asked to identify any examples of a safety incident occurring as a result of setting individual productivity targets. He did not have details with him, but believed he could find examples in the Union’s files. He conceded he knew of no such incident that involved J.J. Richards’ employees. Nevertheless, many of the respondent’s Drivers had told him of being ‘pressured’ to do the job faster.

[56] Mr Williams agreed that the respondent has a right to infringe a Driver if he/she does something wrong while driving. As to productivity targets, Mr Williams believed Drivers either ‘cut corners’ or they worried about being ‘infringed’ for not meeting targets. If targets are unachievable or change, the Drivers will be worried and feel pressured to meet the targets. He accepted that the respondent had a right to discipline an employee for failing to meet ‘reasonable’ targets. Mr Williams added that he had not had any disciplinary issue with other companies enforcing their ‘reasonable’ targets. Mr Williams acknowledged there were some Drivers who ‘pad up’ their hours so as to be paid overtime. This can be managed through the j-Track system. When asked how the respondent could manage the applicant’s maximum wage hours from 10.4 hours to 8.9 hours, Mr Williams suggested that further training might be necessary.

Mr John Lilley

[57] Mr Lilley was engaged by the Union to conduct surveillance of one of the drivers (Mr Christopher Sikorski) and a vehicle performing work on the run previously performed by the applicant (Run 2). Mr Lilley conducted the surveillance on Thursday 7 May 2015 and Thursday 14 May 2015, accompanied by his assistant and the applicant. Attached to his statement were photos and maps. A video of the surveillance conducted on 14 May 2015 was also tendered in evidence. I summarise Mr Lilley’s evidence as to this surveillance below.

7 May 2015

[58] No video footage was taken on this day. However, a number of photographs were taken during the period from 5:00am until 1:15pm. Mr Lilley identified and photographed incidents in the following streets on the route.

Wylie St – missed bin and refuse spilled on the road which the driver did not pick up;
Water St – missed bin;
Mann St – missed bin;
Mann St – bin emptied with missing lid;
Western Steven St – two missed bins;
Mann St – missed bin. Driver observed dragging a park bin 50 meters. Another bin left on road, rather than nature strip;
Diagonal St – spilt refuse not picked up;
James St – five bins left on road rather than returned to nature strip;
Joyce St – bin left on road and not returned to nature strip;
Kenric St – bin left on road and not returned to nature strip;
Joyce St – bin not returned to nature strip and left on the road;
Tointon St – bin not returned to the yard of an infirm resident;
Kenric St – damaged bin not repaired;
Digian St – emptied bin left knocked over;
Gore Highway – bin left on road and not returned to nature strip;
Stephen St – 12 bins left on road and not returned to nature strip. One left knocked over;
Dalgliesh St – emptied bin left knocked over;
South St – damaged bin lid not repaired;
Fifth Ave – missed bin;
Justin St – four bins left knocked over;
Dunkley St – bin left on road and not returned to nature strip;
Dunne St – damaged bin not repaired; and
Second Ave – bin emptied with missing lid.

[59] During this surveillance, Mr Lilley’s assistant made a running tally of the bin count per hour of work, as follows:

5:07am to 6:00am: 114
6:00am to 7:00am: 128
7:00am to 8:00am: 103
8:00am to 9:00am: 99
9:00am to 9:30am: 62
9:30am: Driver leaves for transfer station.
10:00am to 10:30am: Driver Lunch Break
10:31am to 11:00am:95
11:00am to 12:00pm: 109
12:00pm to 1:10pm: 206

14 May 2015

[60] Video footage was taken of the same Driver and truck on parts of the same run. This exercise did not disclose the same number of bins missed or left on the road as in the previous week. The Driver was observed at a number of park locations (Stevens Park and Goggs Park) ‘running’ to collect the park bins, returning to the truck and ‘running’ back again. Mr Lilley described various aspects of the video when it was shown during his evidence. In oral evidence, Mr Lilley said that it was possible that mistakes were made when the applicant had been communicating the street names during his surveillance. Mr Lilley expressly denied ‘concocting’ any of the photographs taken on 7 May 2015.

[61] In cross examination, Mr Lilley could not confirm whether the truck in the video was a J.J. Richards vehicle. He relied on the applicant telling him it was. Mr Lilley believed that two days’ surveillance was adequate, because the Union was happy with the information provided. It was Mr Lilley’s evidence that he had not witnessed the Driver in the video cause an accident or be involved in a near miss. However, he saw him breach the road rules by reversing down a one way street. Mr Lilley added that when he observed the Driver ‘running’ with the bins, he did not fall or trip, did not appear to be ‘strained’ and did not incur any injury.

[62] Mr Lilley said that he, his assistant and the applicant all conducted the bin count and his assistant tallied the results. Mr Lilley acknowledged that his comments about bins not being serviced, or requiring repair, were based on the applicant conveying that information to him. Although it was not within his direct knowledge, he did generally know the difference between commercial, recycling and general waste bins, although he later conceded he did not know what a commercial bin looked like. Mr Lilley confirmed that the only bins being observed and recorded were general waste bins. However, he conceded that some of the photos did not make clear which bin was being photographed and that multiple services for different waste streams can occur on the same day.

For the respondent

Mr Nathan Bond

[63] Mr Bond described his role as Domestic Contracts Manager as follows:

a) General management of the Contract, which includes employee management;
b) Addressing all service issues that arise;
c) Enforcing compliance with the respondent’s systems’ requirements;
d) Ensuring the service are performed in accordance with the Contract; and
e) Ensuring the services are performed as efficiently as possible (having regard to pick-up routes and hours worked by employees.

[64] In respect to run reviews, Mr Bond said that a major component of his role was to ensure that allocated runs are as efficient as possible. Runs are constantly under review to determine whether improvements can be made. Mr Bond said that when undertaking a run review, he takes account of the following:

(a) The geographical location of the run (i.e. whether the run is in a high collection area or a more regional area). For example, generally a run in the middle of Toowoomba will have a higher BPH, than a run on the outskirts of the Toowoomba region, where there are larger residences and greater distances between collections;
(b) U-Turn cancellations;
(c) The number of street bins, park bins and infirm services, as these types of services generally takes more time because a driver needs to get out of the truck to perform the service;
(d) Turn around points;
(e) Free-flowing runs;
(f) The length of time previous drivers have taken to perform the run; and
(g) Previous drivers’ BPH counts.

[65] Through January-March 2014, Mr Bond required Drivers to attend meetings to review run issues and performance. These meetings were consultative and the discussions involved how the Company and each driver could work together to improve their assigned run. Many of the Drivers were able to rectify identified issues, without further review. The applicant was among this group.

[66] On 3 April 2014, Mr Bond and the applicant met to determine his BPH targets. These were:

(a) Monday: 140+ BPH:
(b) Tuesday: 195+ BPH;
(c) Wednesday: 170+ BPH;
(d) Thursday: 155+ BPH; and
(e) Friday: 195+.

[67] Mr Bond said that these targets were based on figures achieved by Mr Hielshier which were then adjusted, based on other identified efficiencies. In addition, the applicant was to:

• complete his run and associated duties within nine hours per day;



• follow the j-Track route;



• stop manually recording all the infirm, park bins, street bins and collection times during the run;



• achieve a BPH of 170-171, based loosely on Mr Hielshier’s figures.

Mr Bond believed that these targets were reasonable. They were discussed with, and agreed upon by all parties as a goal.

[68] Mr Bond regularly reviewed j-Track data between April and July 2014. It was clear the applicant was not reaching his targets. Mr Bond accepted there were some weeks where he had a valid reason for not doing so, but on the whole, there was not. Mr Bond spoke to him on 23 June 2014 regarding BPH rates of 155, where he had been able to achieve 180-200 BPH. Mr Bond also expressed his concern that the applicant’s work hours were regularly between 10-10.5 hours. When Mr Bond asked for any explanation, the applicant said he ‘sort of’ followed the j-Track directions. He produced a piece of paper with lots of figures and times recorded on it. He referred to park bins, street bins and infirm bins as affecting his productivity. Mr Bond told him the targets were set having regard to these variances. The applicant asked to see Mr Hielshier’s figures, before the more recent changes. Mr Hielshier’s work hours were 8.5.

[69] Mr Bond told the applicant he was wasting time maintaining and recording his own information, as all this information was recorded on j-Track. He directed him to stop doing so. The applicant told Mr Bond he was committed to improving his performance.

[70] On 11 July 2014, Mr Bond met with the applicant to more formally record his ongoing concern with the applicant’s targets. They discussed an average of 172 BPH and Mr Bond said he would be happy if he could achieve 170 BPH - but not below this figure. His high work hours also remained a concern. Mr Bond offered the applicant training with Mr Hielshier and noted:

‘Bruce is interested in improving his figures and is keen to have Chris train him on the run.’

The meeting’s record shows that there was no impact on his bonus.

[71] At a performance review on 24 September 2014 Mr Bond met with the applicant (who declined a support person) and Mr Tom Richards. The applicant informed them that he went back over his run to do bin repairs and replacements. Mr Bond told him to stop this practice immediately and do bin repairs and replacements, as they arose during the run. He believed the applicant knew this was the correct practice. Mr Bond informed the applicant that after his week with Mr Hielshier, his wages hours decreased slightly to 9.6 from 9.9, but they were still too high. Since his previous review, the applicant had failed to reach his weekly BPH target on all, but one occasion. The applicant received a written warning and lost his monthly bonus.

[72] Mr Bond said that while the applicant was on annual leave from 24 September to 20 November 2014, Mr Hielshier achieved an average rate of 172.8 BPH, while also performing three bin replacements and twelve bin repairs. On 20 November 2014, the applicant attended a disciplinary meeting with Mr Bond and Ms Sharon Bowers (Administrative Manager). He declined an opportunity for a support person. The applicant said that he felt his job was being threatened. He was stressed. He claimed that he was not told of any productivity targets when he commenced employment. Mr Bond asked him why he could not meet targets which had been set over a long period. He again referred to ‘jams’ and bin replacements. Mr Bond told him that all runs have these issues. The applicant agreed that he had sufficient training and understood the j-Track system. When pressed by Mr Bond, he conceded he had not exactly followed j-Track and had made changes to the route, without telling Mr Bond. The applicant was directed to follow j-Tack. His targets were reconfirmed and he was issued with a further warning for underperformance.

[73] Mr Bond referred to a follow up meeting with the applicant on 4 December 2014, in which he was told that he had achieved the targets since their meeting on 20 November. Council had not directed any bin replacements or bin repairs during this period. Mr Bond gave him positive feedback and reinstated his bonus. However, the applicant informed him that he had only met the targets because he had not performed any ad hoc bin maintenance or replacements.

[74] From 8 December 2014 to March 2015, the applicant’s targets fluctuated, but were consistently below the target. He was rarely completing his duties within the maximum wages hours target. Mr Bond did not include the Christmas/New Year period, because multiple public holidays and heavier bins would impact on bin targets.

[75] Mr Bond highlighted a graph of the applicant’s weekly BPH compared to the targets over a twelve month period from 24 February 2014, which I reproduce below:

[76] The applicant attended another performance review on 11 March 2015 with his support person, Mr Brendan Bogle, Mr Bond and Mr Jason Doig (Operations Manager – Trade Waste). Mr Bond informed the applicant of his productivity figures from early December 2014 to 11 March 2015 and directed him to perform bin replacements and bin maintenance. The applicant responded by arguing that:

• the truck transmission was ‘getting hot’ which slowed the truck down;



• bin repairs were the reason he could not meet the targets;



• truck ‘jams’ were holding him up; and



• the targets were unreasonable and should have been 164 BPH.

[77] Mr Bond made inquiries with the workshop and was told the transmission problem would not cause the truck to slow down. As the applicant was averaging 160 BPH, he was placed on notice that his employment was at risk and issued with a final written warning. Between 11 March and 10 April 2015, the applicant’s BPH averages ranged between 166-167.4 BPH and his average daily hours were 10.468 - more than 1.968 hours above target.

[78] The applicant was dismissed following a meeting on 2 April 2015. At this meeting, Mr Bond told him that he had consistently failed to meet the BPH target and the maximum hours target during the recent period. The applicant alleged that the Company had changed the target since the one originally set in April 2014. Mr Bond told him that this was incorrect and the targets had remained the same. Mr Bond explained that all drivers are faced with the issues he claimed inhibited his performance, and were still able to achieve their targets. Mr Bond added that he was performing no more bin maintenance than any other Driver. Mr Bond and Mr Richards adjourned the meeting. It was decided that as the applicant had over twelve months to achieve his targets and training was not an issue, his employment should be terminated. Mr Bond referred to three other infringements by the applicant on 21 February and 12 June 2014 and 2 January 2015.

[79] In further evidence,Mr Bond said that from 2 April 2015 – 5 June 2015, a number of Relief Drivers performed the applicant’s run (Run 2). None of the Drivers had previously performed the run or had been given additional training for Run 2. Mr Bond recorded their details, which disclosed the following:

• Joshua Halter – worked on four days and exceeded the target for each day;



• Ronald Wilkes – worked the run on five days and exceeded the target for each day; and



• Anthony Thornton – worked the run for two days and exceeded the target each day by 32 BPH and 40.3 BPH respectively.

[80] Mr Bond set out Mr Sikorski’s productivity results over a six week period on Run 2 after the applicant’s dismissal. Mr Sikorski had not performed the run before, had not been trained and was a relatively new Driver (starting in October 2014). Mr Sikorski was not told of the targets for Run 2 and was instructed to complete the run as per j-Track and complete all bin repairs and replacements. Mr Sikorski exceeded the target in each of the six weeks, within the maximum wages hours and by performing 35 bin repairs and 57 bin replacements. Mr Sikorski also assisted on five other runs after completing Run 2 on five out of the six weeks. While performing all his duties, he averaged 8.945 hours. This included two major breakdowns which adversely impacted on his maximum wages hours. A graph of his average weekly BPH results during this period is reproduced below:

[81] Mr Bond commented on Mr Lilley’s surveillance of Mr Sikorski and made the following observations:

• a bin alleged to have been missed was not a Council bin;



• a bin alleged to have been missed on a photograph that could not be verified;



• While Mr Sikorski failed to service a number of bins, bin repairs are set at the Driver’s discretion taking into account time, safety, location and available tools;



• Two park bins allegedly missed were not part of Run 2;



• Mr Sikorski is not prevented from ‘running’ if he chooses to do so;



• the number of bins allegedly not returned to the nature strip, or knocked over, could not be verified and some do not appear to correspond to the named street location;



• the bin allegedly not returned for an infirm resident was not an infirm service;



• the respondent received no complaints from Council for 7 May 2015;



• Mr Lilley’s running tally of bins collected (916) was not correct (1123), and the methodology of calculation was incorrect.

[82] In his supplementary affidavit, Mr Bond updated the productivity figures for Run 2 between 8 June and 31 July 2015. The run had not been altered since the applicant performed Run 2. For the week commencing 8 June 2015, Mr Brian Garthe achieved a 187.8 BPH weekly average and for the following seven weeks, Mr Sikorski exceeded the average weekly target by between 5.2 to 13.6 BPH. He consistently averaged 7.72 and 8.64 wages hours per day. During this period, there were:

• no safety incidents;



• no complaints from Council; and



• all bin replacements and repairs were completed.

[83] In further evidence in chief, Mr Bond explained the bonus system at the Toowoomba yard. Bonuses are paid monthly and take into account a Driver’s attendance, punctuality, attitude and at fault accidents. For a first year Driver, the bonus is $200 a month and increases by $20 annually. However, if a Driver does something out of the ordinary, or goes beyond their duties, their bonus may be doubled, at the discretion of management. At fault accidents might cost a Driver between $50-$100 lost for that month. Accidents are fully investigated and discussed with the Driver. Additional bonuses are not paid for high productivity.

[84] In cross examination, Mr Bond denied that the applicant had lost his bonus, at any time, for not achieving productivity. However, he did lose his bonus for failing to follow directions when he drove back over his run to do a bin repair or replacement and when he failed to follow the j-Track system.

[85] Mr Bond said that when an employee signs a counselling record, it is not necessarily an acknowledgement of agreement as to what was said in the counselling. Nevertheless, he stressed that the Drivers should read and understand the issue and comment if they wish to.

[86] It was Mr Bond’s evidence that training for new employees is variable depending on of an individual’s familiarisation with the on line training j-Track system and one on one instruction with a Trainer. For example, Mr Sikorski was driving alone within three weeks, while the longest period a new Driver might require, could be 4-5 weeks. Mr Bond agreed that the training would be inadequate if the applicant had only two hours of one on one instruction, when he first started.

[87] Mr Bond said that the Council requires that bins be returned to the point of their collection. Tipped over bins are to be righted and spills caused by the Driver must be cleaned up. Repairs need not be performed unless Council notifies of a repair. However, Council requires that a bin be repaired in the next service after notification. Performance targets are largely left to management. Mr Bond stressed that there is no specific productivity policy, as every contract, run and Driver is different. It is for this reason that targets are not mentioned in the Induction Handbook.

[88] Mr Carter questioned Mr Bond on the Union’s BPH calculations for a period of 33 weeks from July 2013 to 21 February 2014, which disclosed an average of 157.66 BPH for Drivers (including Mr Hielshier). He also relied on a graph prepared by the Union, which I reproduce below, indicating the applicant’s BPH rate from 24 February 2014 to 27 February 2015 by reference to the BPH rates of 163.5, 170 and 172:

[89] Mr Bond explained that when he first took over as the Toowoomba Contract Manager, he identified and changed a number of practices which were impeding productivity, such as banning truck U-turns and requiring Drivers to take the most direct route from the Depot to the tip. At the time, about 85-90% of Drivers arrived for work early, completed their pre shift duties, started the truck and then sat in the smoko room until 6:00am. However, the truck time would have already commenced and would therefore be counting towards the tipping rate. This meant a loss of about 30 minutes for each Driver. He stopped this practice. Mr Bond agreed that BPH rates were lower before he corrected these inefficiencies.

[90] Mr Bond said that the process of setting the rate of 171/172 BPH involved looking at the figures, the neighbouring suburbs, what other Drivers were achieving and removing the inefficiencies. It involved discussions with the applicant. This discussion occurred in April 2014. The applicant was not correct when he claimed that no such meeting was held. Mr Bond denied a proposition that he had adopted a flawed methodology by not relying on long term data. He said that in respect to other Drivers, the majority of them had achieved their targets relatively quickly.

[91] Mr Bond denied that the applicant’s targets of 171/172 BPH were first set in mid-July 2014. He reiterated that the meeting with the applicant was in April 2014. Mr Bond did not document this meeting at the time as his management style was to talk to the Drivers first. The majority of Drivers did achieve their figures, without any paperwork being required. However, by July 2014, Mr Bond was instructed by his managers (Mr Richards and Mr Rob Nicholson) to make it more ‘official’ in order to assist the applicant in meeting his targets.

[92] Mr Bond denied that the target set for Mr Hielshier and the applicant in July 2014 was 163.5 BPH, because it had already been set at 171/172 BPH. At the time, the applicant was achieving around 150 BPH and Mr Hielshier was achieving a BPH rate in the high 160s. It was never the case that the applicant was to achieve Mr Hielshier’s target. It was designed purely for training purposes. In the first week , Mr Hielshier achieved 169.5 BPH, while the records show his maximum wages hours were ten hours. This was high because of his other Leading Hand duties.

[93] Mr Bond reaffirmed that there was never a target of 163.5 BPH in September 2014, or at any other time. Mr Bond said it was possible for Mr Hielshier to achieve 256 BPH on one Tuesday, because it was a particularly high density area. In any event, Mr Bond denied that he withdrew this figure because it was a ‘pretty dodgy figure’ in light of the applicant pointing out that on that day there were six infirms, nine park bins and three street bins. Mr Bond reiterated that the applicant’s BPH rate had not changed in November 2014, despite the counselling record disclosing the following:

‘Targets set out in November 2014 are still current for Bruce to achieve.’

This sentence was merely recorded that the targets had not been altered since April 2014. Mr Bond denied telling the applicant that he must do ad hoc bin repairs. In fact, he had told him to reduce his extra bin repairs, if it was going to assist him in meeting his targets.

[94] Mr Bond agreed that it would be unfair to set a target and then raise it without explanation. Mr Bond also agreed that Mr Sikorski had occasionally left the Depot before his default starting time. This was certainly not encouraged and Drivers are always questioned about the reasons for starting early. Nor was he aware of any practice of the Drivers performing work before ‘swiping on’. Mr Bond was also unaware of Drivers logging in their rest breaks, but continuing to empty bins in order to inflate their productivity results. In any event, he could tell if a truck is stationary, by reviewing the video footage. He had done this regularly since he commenced as the Manager.

[95] Mr Bond acknowledged that a Driver who performs more bin replacements and repairs than another Driver may have lower productivity. He also conceded that a Permanent Driver may have greater pride in looking after his/her customers than a Relief Driver. However, Mr Bond added that the Drivers who took over Run 2 after the applicant’s dismissal, were not classified as Relief Drivers; they were simply helping out.

[96] Mr Bond denied that there was any evidence that Mr Sikorski’s work was of poor quality. However, he agreed that quality of service would not show up in the productivity figures. He emphasised that quality is but one of the factors which is taken into account. Mr Bond gave evidence that after the applicant’s dismissal, he had actually observed Mr Sikorski doing his job, without him being aware that he was being audited. Moreover, Mr Bond said that the applicant had been the subject of a number of complaints, such as failing to return bins correctly and deliberately knocking bins over. This was not in Mr Bond’s statement, because it was not a factor in the applicant’s dismissal and issues such as this were usually resolved after talking to the Driver directly, with no further action being necessary.

[97] Mr Bond stressed that there was no policy or management direction to Drivers to ‘run’ when collecting or returning park bins. It was their personal choice if they did so. Indeed, up until he reviewed Mr Lilley’s surveillance, he was unaware of any Driver running. He saw nothing wrong with it, especially when a Driver might want to stretch out after sitting in the truck for long periods. He believed it was no more a risk than walking across a road.

[98] It was Mr Bond’s evidence that the Company had investigated all of the issues the applicant raised as impacting on his productivity. However, the applicant was not compared to other Drivers. He had been given training, agreed he needed to improve, but over a twelve month period, could not demonstrate a consistency in doing so. Mr Bond said that he had tried the applicant on different runs. For example, when he was on green waste, he had problems there as well, and when he refused to do a recycle run, it was agreed he would do the garbage run. Mr Bond believed it would be unfair to take Drivers off other runs to do the applicant’s run. It was also unfair to compare his performance between two runs, which may have been different.

[99] Mr Bond explained that he had consulted with a number of people about the decision to terminate the applicant’s employment. It had been determined that he had been given every opportunity to improve his performance, but had failed to do so.

Mr Tom Richards

[100] Mr Richards is responsible for the respondent’s performance under the domestic waste contract with Toowoomba Regional City Council. Mr Bond reports to him. Mr Richards said that Driver performance is vital to the successful running of the business. This involves a number of truck drivers’ performance indicators: truck hours, payroll hours, complaints, compliance with procedures and directions, safety and BPH.

[101] Mr Richards explained that truck hours are recorded through the j-Track system. Truck hours commence when the vehicle is turned on and cease when the vehicle is shut down. Payroll hours are monitored through the Kronos pay system. The process requires each Driver to swipe on and off to record their shift hours. As Drivers are allocated to a set run, which generally has similar hours, it is possible to set payroll benchmarks to specific runs and include non-driving times for paperwork and truck cleaning. Monitoring the payroll hours is used to reduce wasted time and increase productivity.

[102] Mr Richards referred to the respondent’s pride in customer service. Complaints received from Council and members of the public are taken seriously. Drivers are spoken to after complaints are investigated and found to be justified. Safety is a high priority for the respondent and any near misses, traffic violations or damage to vehicles or property, caused by a Driver, are unacceptable. If a Driver is found to be at fault, it could involve disciplinary action, retraining and even termination of employment.

[103] Mr Richards believed that BPH is the best indicator of a Driver’s ability to operate the truck and the lifter arm. It begins when the first bin is collected and excludes basic driving time (travel to the depot and landfill site). The bin lifting technique requires skill and concentration to line the bin up, grab it in one motion, empty it and place it back to its original location. Good productivity flows from a good lifting technique. A focus on this indicator informs an assessment of whether a Driver is an efficient side loader operator.

[104] Mr Richards said that every contract and every run was different because of:

(a) density of bins to collect;
(b) bin weight;
(c) number of park bin services;
(d) number of infirm services;
(e) terrain of collection area;
(f) distance from depot; and
(g) distance from disposal location.

Each run is analysed with reference to the most efficient route and by using other Drivers to develop a standard. These are not the ‘best rates’ for a particular run. Benchmarks are set by taking the best possible rate and then reducing it to a level which can be achieved in the majority of the time, taking account of regular variations in working conditions, such as traffic, obstructions etc. Overall performance is set by three related benchmarks:

(a) that a run should be completed within X number of Truck hours;
(b) that a run should be completed within X number of Payroll (wages) hours; and
(c) that a Driver should collect X number of bins per hour.

[105] Mr Richards explained that benchmarks are goals not expected to be reached every day or over every week. There will always be circumstances which negatively impact on targets, but these do not include infirm bins, park bins, bin repairs and replacements and usual traffic. These matters are factored into the set benchmarks. Mr Richards added that a Driver’s performance is monitored over a period of time to ‘iron out’ any infrequent variations. However, when benchmarks consistently fail to be met, a Driver may be asked to explain his/her reasons for not doing so and may be retrained or disciplined.

[106] Mr Richards concluded that operating a single person vehicle is like any other job in that some people can do it better than others. Costs can be substantial if a Driver consistently fails to meet targets. Mr Richards provided what was said to be a conservative costing summary of the applicant’s costs in comparison to a Relief Driver on the same run:

Truck Hours	Payroll Hours
Bruce Steenstra	47.3	50.08
Relief Driver	42.3	44.28
Hours Savings (weekly)	5	5.8
Dollar saving over Contract	$67,200.00	$87,328.51
TOTAL SAVINGS	$ 154, 528.51

[107] Mr Richards described an incident on 30 October 2013 in which the applicant caused his vehicle to collide with a letter box and had failed to report the incident. This was contrary to the respondent’s requirements. A meeting was held with the applicant on 5 November 2013, in which he agreed that he was at fault. He was issued with a written infringement and his bonus was lost for three months for failing to report the incident.

[108] Mr Richards was involved in the final dismissal meeting with the applicant and Mr Bond on 2 April 2015. Mr Richards believed that the applicant’s performance had been of concern for over twelve months because of his failure to consistently meet the run’s BPH target and his very high wages hours.

[109] At this meeting, Mr Bond set out the applicant’s recent targets and said that for the week 12-20 March 2015 his rate was 166 BPH, with an average of 9.54 hours per day. This was well below his BPH target and well above his maximum wages hours. For the week 23 -28 March 2015, his BPH was 167.4 and his wages hours were 9.48.

[110] Mr Richards said that in response, the applicant explained that he did not think his figures were that bad and he had failed his target on a particular days because of weather issues, bin maintenance and missed services. He had also alleged that his targets were increased from those Mr Bond originally set in April 2014. However, Mr Bond told him the targets had remained the same since April 2014, that all the other Drivers faced the same issues he complained of, and were still achieving their targets and that he was not performing more bin maintenance than other Drivers. The applicant replied that he ‘tried the best he could’.

[111] It was Mr Richards’ evidence that he and Mr Bond then adjourned and considered the applicant’s productivity figures and his explanation as to why he could not reach his targets. As the applicant had been afforded 12 months to reach his targets, and training was not an issue, he and Mr Bond agreed that there was no other option, but to terminate his employment. Mr Richards believed the applicant’s targets were ‘moderate’ and since the applicant’s dismissal, other Drivers had not only met the targets on Run 2, but exceeded them.

[112] In cross examination, Mr Richards was asked why parts of his affidavit appeared to be ‘word for word’ to Mr Bond’s written evidence. He denied it had been a ‘cut and paste’. They were his words. He insisted that Mr Bond told the applicant at the 2 April 2015 meeting that his targets had not changed since April 2014.

[113] Mr Richards described his understanding of the Company’s training requirements for the Drivers. He accepted that the training could take up to five weeks. He expected training would be longer than two hours. While training can get a Driver to a certain level, they were still expected to achieve the required productivity targets. Mr Richards denied that five days and two hours of in truck supervision, was inadequate.

[114] Mr Richards accepted that there was no written policy setting out the targets for the Drivers. The Induction Handbook set out that employees are to follow the reasonable and lawful directions of management and supervisors. This includes complying with productivity targets. Mr Richards did not accept that the applicant was unaware of the respondent’s requirements.

[115] Mr Richards explained the system of paying bonuses to employees which was not different to the evidence of Mr Bond on this subject (see para [83]). Mr Richards said that about half of the Drivers are above the average and half are below the average. Mr Richards agreed it would not be fair to set a benchmark by comparison to the ‘best’ Driver and generally reference would be made to the average Driver.

[116] Mr Richards believed that a good comparator of whether a Driver’s performance could be obtained, was when a Relief Driver takes over while the usual Driver is on holidays. Mr Richards denied a proposition this was an unfair comparison because Relief Drivers did not take the same ‘ownership’ and care for their runs, as a Permanent Driver does. Mr Richards said the expectation was that bin repairs are to be carried out, but not if the Driver is behind with the run. This was told to the applicant time and again.

[117] Mr Richards was shown Union calculations which revealed that Mr Hielshier’s performance over an eight month period (prior to April 2014) on Run 2 was 157.66 BPH, whereas for the following twenty weeks, the applicant’s BPH rate was 151.41. Mr Richards agreed that this demonstrated a fairly similar BPH rate, all things being equal.

[118] Mr Richards criticised questions asserting that Mr Sikorski was not doing a good job. He said Council and the respondent had no concerns with Mr Sikorski’s work, and in the last five months, there had been no complaints about his work.

[119] In re-examination, Mr Richards said he had never issued a warning to the applicant or any Driver for failing to undertake extra bin maintenance. Mr Richards believed that a Permanent Driver should always exceed a Relief Driver in running a run efficiently.

Mr Matthew Schoemaker

[120] Mr Matthew Schoemaker has been employed by the respondent since August 1989. He is presently the Chief Information Officer, having responsibility for the governance, oversight, management system design and strategic direction of the respondent’s information systems. Mr Schoemaker provided an affidavit, but was not required for cross examination.

[121] Mr Schoemaker’s affidavit dealt with the operations and functionality of the j-Track system, including details of its starting up processes and how the bin tally, rest breaks, packer ‘jams’, bin repairs and replacements are recorded. He also explained the breakdown mode, various alerts, alarms and linkages to other systems which measure time and attendance and measurement of collection time hours.

[122] Mr Schoemaker emphasised the bin counter does not measure productivity on its own. BPH is derived by looking at bin lift cycles and collection hours.

Mr Christopher Sikorski

[123] Mr Sikorski has only driven waste collection trucks since 1 October 2014. He described his duties as collecting bins, making bin repairs or replacements where necessary, tipping loads and carrying out extra work prior to completing his shift, such as ‘missed’ services or helping another Driver on another run.

[124] Mr Sikorski first performed work on Run 2 on 17 April 2015. He had not worked on the run previously and relied on j-Track to guide him through the collections. He commenced work at 5:39am and finished at 2:56pm. Mr Sikorski continued performing work on Run 2 between 20 April and 29 May 2015, during which time he completed 33 bin repairs and 59 replacements and easily achieved the BPH rate. It was Mr Sikorski’s evidence that he was not made aware of the targets set for Run 2, but he averaged 171 BPH. He considered the targets reasonable and achievable.

[125] In oral evidence, Mr Sikorski said he would only do bin repairs if they fitted into his allocated hours. If there were other breakdowns, he would not do the bin repairs, unless expressly requested by Council. Mr Sikorski understood that when he started work early doing prep work (for example, on 17 April 2015 at 5:39am), he would swipe on at 5:39am and be paid from that time.

[126] Mr Sikorski said that when he started Run 2, he had been unaware that the applicant’s employment had been terminated for not meeting productivity targets and he was not told what the targets were. Nor was he aware of the Union’s investigation conducted by Mr Lilley, until his evidence was produced.

[127] It was put to Mr Sikorski that he was observed during the surveillance to have missed bins and spilled rubbish, not to have placed bins back on the nature strip and not righted toppled over bins. He agreed he was required to do all these things and explained what might have happened on that day - 7 May 2015. He could not recall being in a hurry on that day.He said that he did the best he could within the time and the limits of available parts and tools.

[128] Mr Sikorski agreed that he sometimes ran to collect and return park bins, but this was because he is fit and healthy and likes to stretch out after sitting in the truck for up to eight hours. While he agreed that this practice might improve productivity, it would only be five minutes a day. Mr Sikorski agreed he may have missed an infirm bin and a park bin, because he was not yet completely familiar with the run. He denied he missed the park bin to improve his productivity. In fact, it took him longer to look for it.

Mr Brian Garthe

[129] Mr Garthe has twenty years’ experience in driving side loading waste collection trucks. He has been working in the industry for 34 years. He performed Run 2 from 1 June 2015 to at least the date of his affidavit (12 June 2015) and was aware of the 171 BPH target. He said he had no concerns with meeting this target and believed the targets were reasonable and achievable, including in circumstances when he is required to do extra bin repairs and replacements or when other issues disrupt bin collections. He also believed his BPH rate increased as he became more familiar with the run itself.

[130] In oral evidence, Mr Garthe said that he continues to learn on the job in trying to better his technique. New Drivers vary as to how quickly they pick up on how to do the job. Mr Garthe did not know if Relief Drivers are told what the targets are for a relief run.

[131] Mr Garthe said that bin repairs are conducted according to Council’s requirements or otherwise at the Driver’s discretion, depending on the task, gear available and other factors, such as timeliness. As a permanent Driver, he likes to keep the bins on his run ‘in good shape’.

[132] Mr Garthe was not aware of practices designed to inflate BPH rates, such as Drivers servicing park bins during a break, notifying of a breakdown on j-Track and continuing to collect bins, or servicing some park bins one week and servicing the rest in the following week. Mr Garthe agreed that doing bin repairs could affect productivity.

Mr Anthony Thornton

[133] Mr Thornton has 11 years’ experience as a side lift waste truck Driver. Mr Thornton worked on Run 2 on two occasions (9 and 10 April 2015). He completed no bin replacements or bin maintenance on these days. As Mr Thornton’s evidence as to the targets for Run 2 was similar to Mr Garthe’s, I need not repeat it here.

[177] Ms Tierney described the applicant as having ‘fought us all the way’. He had maintained detailed records of his run, as they were being performed, refused to follow the maps given to him by the respondent and performed excessive bin maintenance, even after being directed not to do so. He continued to blame external factors, like traffic lights, the truck, and issues with the bins. However, other Drivers, presumably faced with the same issues, could perform at the required level.

[178] Ms Tierney submitted that in the event that the Commission found that the applicant’s dismissal was procedurally unfair, reinstatement would be inappropriate, given his incapacity to perform to the relevant standards. If the Commission was to award compensation, it should consider that it was unlikely that the applicant would have remained employed for much longer. As to the applicant’s submission that he could be redeployed into a role in green waste, Mr Bond had referred to non-specific ‘issues’ during his previous time working in that role. The Commission should also consider the other warnings and infringement notices issued to the applicant.

CONSIDERATION

[179] This is a relatively straightforward case involving an employee dismissed for alleged poor work performance over an extended period. Earlier at para [5] of this decision, I dealt with the preliminary matters the Commission is required to take into account, before considering the merits of the case. The only issues now before the Commission are whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act, and if so, what remedy, if any, should be awarded by the Commission, pursuant to s390 of the Act.

[180] Section 387 of the Act is expressed as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.

[181] Mr Carter argued that the applicant’s dismissal was ‘harsh, unjust and unreasonable’ and therefore ‘unfair’ because the benchmark targets set by the respondent were both unreasonable and unachievable and the methodology for setting the benchmarks was flawed. It followed, in Mr Carter’s submission, that there was no valid reason/s for the applicant’s dismissal and he should be reinstated.

[182] The meaning of the phrase ‘harsh, unjust or unreasonable’ is to be found in the well-known quote from Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 (‘Byrne’), where McHugh and Gummow JJ said:

‘It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted’.

[183] The meaning of ‘valid reason’ is that the reason for dismissal is ‘sound, defensible and well founded’. This meaning is drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’), in which His Honour said:

‘In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly.’

[184] I emphasise that the Commission must apply the provisions of s 387, in particular sub-section (a) in a practical, common-sense way to ensure that the employer and the employee are treated fairly. This observation is synonymous with the overarching consideration in unfair dismissal cases, for the Commission to ensure a ‘fair go all round’, as mandated by s 381(2) of the Act.

[185] It would seem to me, having considered the detailed submissions of Mr Carter, that the following questions arise:

• Were the benchmarks/targets set by the respondent unreasonable and/or unachievable?



• Did the respondent increase the benchmark targets and thereby ‘shift the goal posts’ in order to set the applicant up to fail?

Were the benchmarks set by the respondent unreasonable and/or unachievable?

[186] A central feature of the respondent’s case was its reliance on the employer’s prerogative to manage its business as it sees fit, by the setting of individual productivity targets. In this context, both parties addressed the principles of managerial prerogative. That an employer has a right to conduct and manage its business, as it sees fit, and without external interference, is not disputed. It is a well known and long held principle, stemming from such seminal cases as the XPT Case and Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 (‘Cram’).

[187] On the other hand, that right may be open to challenge in circumstances where the employer proposes to enforce such a right, by requiring an employee to comply with unlawful or unreasonable direction/s. It is my understanding, that while the Union vigorously opposes, more generally, the setting of individual productivity targets in the waste collection industry, it does not argue against the legality of the practice.

[188] The contemporary state of the law in respect to managerial prerogative was considered by Lawler VP in CFMEU v HWE Mining. I cite a lengthy passage from His Honour’s judgement below, which I respectfully adopt. At paras [7]-[12], His Honour said:

‘[7] The law recognises that there is an area of managerial prerogative in which an employer has the right to make decisions on how to manage their business. In Re Cram, ex parte N.S.W. Colliery Proprietors Association Limited  the High Court observed that “many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee”. That case was concerned with whether the jurisdiction of the federal tribunal (under the then legislation based on s.51(xxxv) of the Constitution) to make an award in settlement of a dispute was constitutionally limited so as to prevent any interference with managerial decisions. The High Court rejected any such limitation, observing:

“... we reject the suggestion, based on the remarks of Barwick C.J. in Melbourne & Metropolitan Tramways Board, that managerial decisions stand wholly outside the area of industrial disputes and industrial matters. There is no basis for making such an implication. It is an implication which is so imprecise as to be incapable of yielding any satisfactory criterion of jurisdiction: see Federated Clerks Union. Indeed, the difficulty of making such an implication is accentuated by the fact that the extended definition of ‘industrial matters’ proceeds on the footing that many management decisions are capable of generating an industrial dispute.

These considerations indicate that the objection voiced by O’Connor J. in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted.”
(footnotes omitted)

[8] Subject to express terms, there is an implied term in the contract of employment that the employee will comply with the lawful and reasonable directions of the employer. This is one of the principal ways in which the employer’s managerial prerogative arises from a legal perspective and forms the basis on which an employer may be said to have a right to make and vary policies that employees are required to observe.

[9] As was observed by the Full Bench in Woolworths v Brown:

“[24] In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.”

[10] However, managerial prerogative in relation to employees (including the employer’s right to make and vary policies that employees are required to observe) is subject to legal constraints. It may be constrained by statute or the terms of an award. It may also be constrained by the terms of a contract of employment or a statutory agreement that the employer chooses to make. For example, an enterprise agreement might provide that all work must be carried out in accordance with a roster pattern specified in the agreement. In that example, unless the agreement also confers a right on the employer to vary the roster pattern, the employer has bound itself not to require employees to work a different roster pattern. In particular, an employer can bind itself in a statutory collective agreement not to change a policy or policies without, for example, the agreement of a relevant union or a majority of employees.

[11] If an employer’s exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment, the basis for a tribunal such as Fair Work Australia, acting as an arbitrator of a dispute, interfering with what would otherwise be a lawful exercise of managerial prerogative (such as the making or varying of a policy which employees are required to observe) was laid down Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (XPT case):

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable. The ACTU submitted to us that we should apply the test as to whether the demand of the employer was just and equitable having regard to all the circumstances. It is our view that under any given set of facts the test suggested by the ACTU would not lead to a different decision from the test which the Commission has applied over time. Accordingly in reaching our decision we have approached the matter from the point of view of making a judgement whether the request of the SRA that the XPT be manned by one man is unjust or unreasonable.”

[12] I proceed on the basis that an exercise of managerial prerogative will not be unreasonable in this sense if a reasonable person in the position of the employer, could have made the decision in question.
[endnotes omitted]’

[189] While I can understand why Mr Carter focused on the claim that the target BPH rate on Run 2 was unreasonable and unfair because it was unachievable, this assertion begs the obvious question. If the target of 171 BPH was unreasonable and unachievable, why is that the applicant was the only one out of five other Drivers who gave evidence that, not only did they believe the BPH target was reasonable and achievable, but consistently, after a relatively short period working on Run 2, exceeded the BPH target?

[190] In my view, it was no answer to submit that the applicant was subject to an unfair comparison because he was required to perform more bin repairs, replacements and paid more attention to his work. This is so because the evidence of the other Drivers and Mr Bond and Mr Richards was to the effect that all Drivers are required to do Council-directed bin repairs and replacement and any additional ad hoc repairs and replacements are to be at the Driver’s discretion.

[191] Moreover, the applicant conceded that at one point, he actually did the repairs or replacements by going back over his run when it was completed, thereby ‘blowing out’ his maximum wages hours, but making little impact on his BPH rate. Unsurprisingly, as he had not been told to do so and no other Driver engaged in such a practice, Mr Bond directed him to cease doing this work after his run had been completed. In addition, the other explanations offered by the applicant, such as the faulty truck transmission, bad weather, infirm bins and a list of other circumstances affecting productivity (see para [12]) do not satisfactorily explain why all the other Drivers can still meet the targets, being subject to the same circumstances. This corroborates the respondent’s evidence that the productivity benchmarks are set by factoring in, inter alia, all of the variables affecting all of the Drivers.

[192] It is also relevant, in my view, that the other Drivers’ evidence was from a broad cross section of Operators; from a Driver with eight months experience, through to another Driver with twenty years’ experience. I reject the Union’s submission that the comparisons were unfair because the selected Drivers from Run 2 were the ‘gun operators’. In addition, the Drivers’ evidence was overwhelming that while individuals become proficient in the job after different periods of time, varying from 2-3 weeks to a few months, nowhere was it suggested that a Driver would take over twelve months to become familiar with a particular run or achieve competency in operating the truck efficiently.

[193] In my opinion, the preponderance of evidence in this case was simply inconsistent with the applicant’s claim that the benchmark BPH targets on Run 2 were unreasonable and unachievable. However, they are other aspects of the applicant’s case which are of concern and, which to my mind, do not support the Union’s arguments in support of the applicant.

[194] Firstly, the Union Organiser’s evidence went solely to the Union’s general concerns with individual productivity targets in the waste collection industry as creating unsafe working conditions for the Drivers and raising safety concerns for the public. His evidence did not address the specific allegations of poor performance against the applicant. Indeed, Mr Williams did not even know the applicant. Mr Carter referred to the present inquiry by the RSRT into the waste collection industry and the Union’s general concerns with the safety issues associated with productivity targets. With respect, this diversion did nothing to assist the applicant’s case. Moreover, in my view, it is inappropriate and improper to use this unfair dismissal case (or any other) as a ‘mini-inquiry’ into matters which have major industry-wide implications and which are the subject of proceedings before the RSRT.

[195] Secondly, the Union engaged a surveillance company and relied on Mr Lilley’s evidence as demonstrating that the Driver on Run 2 after the applicant’s dismissal – Mr Sikorski – was careless and paid little attention to good customer service. He also ‘ran’ with the bins in parks. Amongst other criticisms, it was said he missed bins, did not return bins to their correct position, failed to perform repairs and replacements.

[196] Presumably, this evidence was designed to discredit the respondent’s case as to reasonableness of the BPH targets and to demonstrate that the applicant had been unfairly compared to Mr Sikorski. Putting aside that the respondent did not rely on Mr Sikorski’s productivity figures as a basis for the applicant’s dismissal, in my view, the Union’s reliance on a rather crude, unscientific and, with respect, poorly prepared and executed surveillance did not assist the applicant’s case, let alone ground a conclusion that the productivity targets were unreasonable.

[197] Moreover, reliance on just two days’ worth of surveillance (both on a Thursday) to justify the argument that the Relief Driver met the targets by ‘cutting corners’ and compromising safety and service, fails for the very same reason that he criticised the respondent’s case. Put another way, Mr Carter sought to highlight a few examples in the last few weeks of the applicant’s employment where he met the BPH targets to demonstrate that the applicant was on the trajectory to continuing improvement.

[198] It must be obvious that the applicant was not dismissed because of a few isolated instances of poor performance, but because of his consistently poor performance over twelve months, having undergone specific one-on-one training and in the face of numerous warnings. If the objective was to criticise Mr Sikorski’s performance based on two days of surveillance, even assuming the Union’s observations were correct, then I find it a poor and unrealistic comparison to make, particularly given that there was no evidence of any complaints from Council or the public about Mr Sikorski’s work on those two days (or any other time).

[199] Thirdly, in addition the Union brought no evidence to substantiate its claims that individual productivity targets posed a safety risk for employees and the public. It relied on speculation and assumption, without a shred of direct evidence. The closest it got to any observations of a safety concern, was a rather ‘hollow’ debate about the alleged greater risk of ‘running’ rather than ‘walking’ the bins. Apart from this not being a direction of the respondent – it being a matter of personal choice – there was no evidence that Mr Sikorski had experienced any injury or incident by his ‘running’ of the bins. Mr Carter dramatically said that it was only a matter of time before someone was killed because of unrealistic individual productivity targets in the industry. For the Commission to make findings in such a serious matter of alleged safety risks in the industry, without a proper evidentiary case being advanced and tested, would be capricious and liable to justifiable criticism.

[200] Fourthly, at this juncture, it is appropriate to comment on the applicant’s evidence. I found Mr Steenstra to be an honest, sincere and thoughtful witness. His evidence was carefully delivered. He was not prone to exaggeration or hyperbole. He was not an argumentative witness or unduly defensive and he gave answers truthfully, sometimes against his own interests. There were points of critical difference concerning whether the BPH rate of 171 was set in April 2014 or whether it was increased to 171 BPH in July after having been told it was 162 BPH. I shall return to this conflict shortly.

[201] That said, I accept that the applicant holds strong views about his own work performance and ethics and he has a genuine belief that he was being treated unfairly. He believes he was always doing the right thing by his job and that he had constantly sought to improve his performance and comply with management’s directions as to productivity targets. Mr Bond frankly acknowledged that the applicant was reliable, a ‘good guy’, who got on well with everyone and that he had a good attendance record, with no sick leave. There was evidence that the applicant knew he was not performing to the respondent’s requirements and promised to improve. It was said that in the 2 April 2015 dismissal meeting, he had explained, ‘I tried the best I could’.

[202] Regrettably, trying to do one’s best, or even performing to one’s best ability, is not the relevant test in a case such as this. This is clear from the decision in Crozier v Palazzo, where the Full Bench said at paras [62] and [63]:

‘62 We find that there was a valid reason for the termination of Mr Crozier's employment related to his capacity. In our view an employee's performance is an incident of his or her “capacity” within the meaning of that word in s 170CG(3)(a). A consequence of the adoption of the test posited by the appellant would be that an employer would never have a valid reason to terminate an employee based on his or her capacity if the employee was doing his or her best. This would be so despite the fact that the employee may be entirely unsuited for their position or they do not fulfil a key requirement of their position which was reasonable in the circumstances, as was the case in the matter before us.

63 Mr Crozier knew that a substantial part of his job was to acquire new business in a difficult market. He also knew that the main focus of his position was to generate new business and substantially increase occupancy levels. He was an experienced sales person who listed among his attributes a “proven ability to find new prospects in difficult market areas”. Despite his best endeavours Mr Crozier failed to meet the key objective for which he was employed. He only achieved one sale — valued at $1300 — during the six and a half months of his employment. Contrary to the submission put on behalf of the appellant we find that the weight of the evidence does not support the contention that external factors or the respondent's failure to provide appropriate support and assistance were significant factors in Mr Crozier's lack of success in securing sales.’

[203] It seems to me that the problem was that the applicant simply could not meet the respondent’s targets or complete his job within the maximum wages hours. While I accept that the applicant’s belief as to the unfairness of his dismissal is a genuinely held, heartfelt belief, the question remains as to why he could not met the benchmark targets, when others could? On one view, it might be said that the respondent exercised commendable restraint and patience with an employee, who almost from the outset of his employment, was unable to meet the expectations of the respondent as a waste collection Driver.

[204] Fifthly, it was argued that the bin rate of Mr Hielshier, the Driver he was ‘buddied’ to and whose targets he believed were those he was required to meet, were an average of 157.66 in the eight months prior to the applicant taking over Run 2. However, Mr Bond explained he had reviewed and increased the targets when he commenced employment as the Manager and identified inefficiencies in all the runs in early 2014. One of these inefficiencies was that the Drivers would come in before shift start time, start their truck and then have a coffee before commencing their run. This evidence was not refuted. But, in any event, reliance on what Mr Hielshier did prior to Mr Bond’s appointment did not answer the question as to why all of the Drivers, post the applicant’s dismissal met, or exceeded 171 BPH.

[205] Sixthly, Mr Carter criticised the respondent for not taking the applicant off general waste collection and returning him to green waste or general yard duties, as an alternative to dismissal. Indeed, he suggested the Commission might make orders to this effect. While redeployment options might be relevant if the applicant’s job had been made redundant, this is not a genuine redundancy case.

[206] It cannot be disputed that an employee engaged by the respondent on a waste collection contract is required to be proficient in all aspects of waste collection, including green waste, general waste and recycling and are subject to direction as to where and when they work. So much so is plainly evident from the applicant’s position description referred to by Mr Carter (See: para [27]). Additionally, there is a requirement from time to time for employees to alternate between particular services or assist on another run in the absence of the run’s dedicated Driver.

[207] While I accept that Drivers might be more proficient in one area of waste collection over another, it is not too difficult to imagine the resentment of other Drivers, if a Driver is redeployed to their preferred option, when they are unable to satisfy the full range of their required duties. In any event, a recent Full Bench determined that the Commission, in the exercise of its unfair dismissal jurisdiction, is precluded from ordering reinstatement of an unfairly dismissed employee on terms or conditions. In Cartisano v Sportsmed SA Hospitals Pty Ltd[2015] FWCFB 1523, the Full Bench said at paras [41]-[42]:

‘[41] Having regard to the similarity between the former s.170CH(3) of the Workplace Relations Act 1996 and s.391(1) of the Act, but noting the change from the use of the discretionary “may” to the obligatory “must”, we consider that Blackadder dictates an interpretation of s.391(1) under which any reinstatement order made under the subsection must be one which effects a real and practical return to work and the performance of work duties. In the case of an order made under s.391(1)(a), the order must be one which achieves an actual return to work in the employee’s pre-dismissal position; in the case of an order made under s.391(1)(b), the order must achieve an actual return to work in the alternative position identified in the order. There is no power to make any other type of reinstatement order.

[42] The attachment to a purported reinstatement order of a condition, term or proviso which has the effect that the order does not achieve, or does not necessarily achieve, the actual reinstatement of the employee in the sense discussed in Blackadder,is not authorised by s.391(1). It is not a reinstatement order of the type either in paragraph (a) or (b).’

[208] Reinstatement can only be ordered to the position the dismissed employee previously occupied (s 391(1)(a)) or to a commensurate alternative position (s 391(1)(b)). It seems to me that the Commission would be precluded from ordering the applicant to his former position and requiring him to meet productivity benchmarks, less than those expected by the employer, or arguably, by reinstating the applicant to a Run in which he feels he is more comfortably able to comply with lower productivity targets.

Did the respondent ‘shift the goalposts’?

[209] The main area of evidentiary conflict in this case arises from the applicant’s evidence that he was not told in April 2014 that the BPH target for Run 2 was 171-172 and that he believed it was increased from 162 to 171-172 to set him up to fail. Mr Bond strenuously refutes this assertion. He acknowledges that there was no formal record of such a meeting in April 2014. He explained that this was because he had met with all the Drivers, around this time, after reviewing all the runs and merely had an informal discussion about the targets for their runs. Mr Bond insisted that the applicant knew the target BPH rate was 171 in April 2014 and it never changed from that point. There could be no suggesting nor was it ever the intention to ‘shift the goal posts’ in order to set him up to fail.

[210] If the Commission was to accept the applicant’s evidence on this issue, it would have the consequential effect of finding that Mr Bond’s evidence was either deliberately false or perhaps at best, he was mistaken. More significantly, the counselling document signed by the applicant in July 2014, would have to have been later ‘doctored’ by someone to insert a reference to the standard of 172 BPH being set on 3 April 2014. Given that it would also call into doubt Mr Richards’ evidence that Mr Bond had told the applicant in the dismissal meeting on 2 April 2015 that the BPH rate had not changed since April 2014 (which the applicant also denied), I am comfortably satisfied that the serious implications of the applicant’s claim are so implausible as to be rejected. As I said earlier, I found the applicant to be a truthful witness. That said, I believe that it was not Mr Bond who was mistaken, but rather the applicant who was possibly confused or genuinely mistaken as to what was expected of him from April to July 2014.

[211] In any event, it was perhaps unnecessary to make findings as to this matter as the primary question as to whether there was a ‘shift in the goal posts’ is secondary to the question of why the applicant could not consistently meet the BPH target of 171 (even from the later date of July 2014 to April 2015), when it was later made plainly obvious every other Driver, no matter how experienced, could do so.

CONCLUSIONS

[212] For the aforementioned reasons, I find that there was a valid reason for the applicant’s dismissal on 2 April 2015 in that he was unable to meet the reasonable and achievable productivity expectations of the respondent, over an extended period.

[213] Although a finding of valid reason is a significant matter under s 387 of the Act, it may still be open for the Commission to make a finding of unfairness, based on any, or a combination of the other factors in sub-sections (b)-(h) of s 387. This proposition is now well established and was expressed, in an emphatic way, I might say, by the majority (Lawler VP and Cribb C) in B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191, where at para [41], it was said:

‘[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.’

[214] In turning to the other matters in s 387, it may be readily observed that sub-sections (b)-(g) are relevantly concerned with procedural fairness issues. I do not apprehend that Mr Carter’s most forceful or persuasive arguments concerned matters arising from claims of procedural unfairness. Nevertheless, the Commission is still required to take such matters into account in making an overall assessment of whether the applicant’s dismissal was ‘harsh, unreasonable or unjust’. It is to these matters to which I now turn.

Whether the applicant was notified of the reason for his dismissal (s 387(b))

[215] There is no doubt the applicant was aware of the reasons for his dismissal, as expressly conveyed to him in the dismissal meeting on 2 April 2015. For the discrete purpose of this sub-section, it is not relevant that the applicant disputes the reasons for his dismissal.

Whether the applicant was given an opportunity to respond (s 387(c))

[216] The evidence is clear that the applicant was given a number of opportunities to respond to the employer’s concerns with his consistent failure to meet the productivity targets and exceeding his maximum wages hours. He did this both in meetings with Mr Bond, and later with Mr Richards, and in writing when he set out the factors he believed were adversely impacting on his productivity targets.

Whether there was any unreasonable refusal by the employer to allow the applicant to have a support person present (s 387(d))

[217] The undisputed evidence of Mr Bond was that in all of the formal meetings he had with the applicant, the applicant was offered the opportunity to have a support person present. In at least one meeting, the Union Organiser, Mr Bogle, was in attendance.

Warnings for unsatisfactory performance (s 387(e))

[218] The respondent’s records indicate that the applicant had at least six formal warnings about his poor performance. These were recorded as follows:

• 23 June 2014 – verbal warning;



• 11 July 2014 – further verbal warning;



• 24 September 2014 – final written warning;



• 20 November 2014 – final written warning;



• 4 December 2014 – further warning;



• 11 March 2015 – final written warning; and



• 2 April 2015 – dismissal.

[219] In all of these documented counsellings/warnings, the applicant has acknowledged that there had been a meeting to discuss his performance and he signed the record to acknowledge the meeting had taken place. I accept, of course, that the applicant did not agree with the basis for the meeting or its outcomes. Mr Bond, however, records the applicant’s responses as follows:

• 11 July 2014 – Bruce is interested in improving his figures and is keen to have Chris train him on the run.



• 24 September 2014 – Bruce said he has been trying hard to meet the targets.



• 20 November 2014 – ‘I understood what is required of me and will try to achieve this in the time frame.’



• 11 March 2015 – ‘This is not fair and I think I should be able … appeal this and go over your head.’

The degree to which the size of the employer’s enterprise and access to human resources management specialists was likely to impact on the procedures in effecting the dismissal (ss 387(f) and (g))

[220] The respondent is a relatively large employer with 2,000 employees under numerous Australia-wide contracts in the waste collection industry. There is nothing to suggest that the size of the employer’s enterprise and its access to dedicated human resources specialists adversely impacted on its processes for dealing with a disciplinary process and consequential dismissal of the applicant for poor performance. This is a neutral consideration.

Other relevant matters (s 387(h))

[221] I have taken into account that the applicant is 58 years of age. I accept that he may have difficulty finding alternative employment in a regional Queensland city, although he does have considerable truck driving experience. There was no evidence of other truck driving opportunities, in and around Toowoomba, for which the applicant is suitably qualified.

[222] Balanced against the applicant’s age is the fact that he has had only two years’ service with the respondent, and from an early point in his employment, he was experiencing difficulties in meeting the respondent’s productivity targets. I am also cognisant of Mr Bond’s evidence that the applicant is a ‘good guy’, that he got on well with other employees and had a good attendance record.

[223] However, I do not consider any of the factors favouring the applicant, or any combination of them, are of sufficient weight to justify the Commission’s interference in the respondent’s decision to dismiss the applicant for poor work performance, over an extended period and in light of repeated warnings, that he needed to improve his productivity targets.

[224] In short, while I have some sympathy for the position in which the applicant finds himself, I do not consider his dismissal was ‘harsh, unreasonable or unjust’, within the meaning of s 387 of the Act. That being the case, the applicant’s claim for an unfair dismissal remedy must be dismissed.

[225] Orders to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr A Carter of the Transport Workers’ Union of Australia for the applicant.

Ms K Tierney and Ms L Rich for the respondent.

Hearing details:

2015

Brisbane:

17, 18 August.

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