Chris Birt VK&S Freighters Pty Limited

[2010] FWA 6732

[2010] FWA 6732

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chris Birt

V

K&S Freighters Pty Limited
(U2009/12294)

DEPUTY PRESIDENT SWAN BRISBANE, 31 AUGUST 2010

[1] This application is made by Mr Christopher Birt [the applicant]. Mr Birt seeks relief pursuant to s.385 of the Fair Work Act 2009 (the Act) for his allegedly unfair dismissal as a truck driver for K & S Freighters Pty Ltd [the respondent].

[2] Mr Birt was represented by Mr Carter, an advocate for the Transport Workers’ Union of Australia, Queensland Branch (the Union), and the respondent was represented by Mr Vitale (Solicitor).

Reason for Dismissal

[3] The reason for the dismissal was the applicant’s refusal to comply with the respondent’s Policy that employees pay for damages to vehicles when, in the employer’s view, the damage was caused by the driver’s negligence.

Brief background to Birt’s employment

[4] Mr Birt is a 49 year old man who has been a truck driver for all of his working life. He has held a Heavy Combination drivers’ licence since 18 years of age and a Multiple Combination drivers’ licence since 2009. He has never had an accident driving heavy vehicles.

[5] Mr Birt commenced employment with the respondent in May 2008. Mr Birt became very ill with cancer in early 2009 and took some time off work on sick leave. He returned to the workplace in April 2009 and his services were terminated on 9 September 2009.

[6] Mr Birt was employed on a full time basis.

The employer Policies

[7] “4.20 Vehicle Policy

…

Accidents or damage must be immediately reported. Negligent damage will be costed to the employee.” [K&S Freighters Pty Ltd Employee Handbook]

[Exhibit 6 – KE 1]

Note [This Policy was in existence from 2005 but lay dormant until February/March 2009 when the following policy was enforced:].

Vehicle Policy

“Accidents/Incidents

All accidents or damage observed to the vehicle must be reported immediately to the employee’s manager and the insurance Department within 24 hours of the accident on the Incident Report Form. An employee may be required to meet part or all of the cost of repairing any damage caused to a Company vehicle, where the employee or a driver authorised by the employee was negligent.” [KE 2 – Exhibit 6]

Applicant Witnesses

[8] Mr Birt

Mr Taylor

Mr Birt’s evidence

[9] At his initial job interview with the respondent’s Transport Supervisor, Mr Wayne Woolacott, the applicant was not advised of any company policies or procedures. At an Induction Course conducted by the respondent upon the applicant’s return to work in 2009, the applicant was required to answer questions around driving issues, but the issue of paying for damage to trucks and/or dismissal as a consequence of not paying, was not mentioned.

[10] Upon his return to work in 2009 after being absent on sick leave, the applicant, undertaking a re-induction course, signed the back of a document saying that he had read and understood the Employee Handbook. He had no opportunity to look at the Handbook at that time because his supervisor, Mr Woolacott was in a hurry to get home. At the time of signing this document, the Vehicle Policy [Exhibit 6 – KE 2] had been updated in March 2009

[11] The applicant says he had never sighted the Vehicle Policy during his employment with the respondent. There is no evidence of the applicant ever signing a form relating to that document.

[12] The applicant also advised that, after the enforcement date of the Vehicle Policy, Union meetings were held in the morning and, as he worked on the afternoon shift, he was not aware of what discussions were held. Prior to the enforcement date of the Policy, the applicant had attended a couple of Union meetings, but the issue of payment for damages to vehicles had not arisen.

[13] Upon the applicant’s return to work in April 2009, he was unable to work a full day, however, after a month of shorter days, he returned to full time duties, working the afternoon shift.

[14] On 25 August 2009, the applicant was involved in an accident whilst driving his truck.

[15] On that day, the applicant had commenced duties at 2.30pm. He was driving a vehicle with an extendable trailer.

[16] At around 7.30pm, the applicant was in the process of delivering a load of steel rods to a business in Acacia Ridge (a Brisbane suburb). That business had two loading docks – one at the front of the building and the other at the right hand of the building [the side loading dock].

[17] The side loading dock was difficult to access as it was down a laneway which was fenced.

[18] The applicant had delivered goods to this site on a few prior occasions.

[19] The applicant was delivering these goods at between 7.00pm and 7.30pm. He says it was dark at that time of the night. There was a floodlight in the area but when the truck was in a certain position, the light shone into the mirrors and some driver vision could be lost because the light would be reflected into the driver’s eyes. Also, at that time, there were no other people present who might have been able to assist the applicant in positioning the vehicle. [PN207]

[20] The applicant said that he had been instructed by the respondent how to deliver goods to this side loading dock. He was told to perform a “U” turn very close to the fence and then to back into the loading dock.

[21] On 25 August 2009, while at the side loading dock, he turned his vehicle at the fence-line and it appeared that the front left hand side of the bumper bar hooked on to a fence pole thereby bending the bumper bar outwards.

[22] The applicant was unaware of any damage to the vehicle at the time, and only noticed the bent bumper bar when he walked to the front of his truck.

[23] The applicant immediately advised the respondent and continued on with his work.

[24] The applicant met with Mr Woolacott a few days later. The applicant was advised by Mr Woolacott that the incident was caused by “driver error” and that he was to pay to the respondent $3,100 plus GST for a new bumper bar.

[25] The applicant said that he could not afford to pay that amount, and was told that the respondent would accept $100 per week being deducted from his pay until the full amount was paid.

[26] The applicant says that this was the first occasion upon which he was aware that employees would have to pay for damage to trucks.

[27] The applicant again spoke to the respondent saying that he couldn’t afford $100 per week repayment, but that he could pay $50.00 per week.

[28] The following day, after considering his situation and after work colleagues had decided to collect money to help him pay his debt, the applicant withdrew his offer to pay $50 per week as he did not believe that he had been careless in driving the truck.

[29] After advising the respondent of his decision, the applicant was told that his employment was to be terminated.

[30] On 9 September 2009, the applicant met with Mr Gailer, [the respondent’s Queensland Manager], Mr Greer and Mr Harvey Taylor [Union job delegates].

[31] The applicant says that his conversation with Mr Gailer was as follows:

Gailer	Have you changed your mind?
Birt	No

[32] The applicant was then handed a letter dated 9 September [CB-1]. That correspondence, inter alia, states:

“On 25 of August 2009 you were involved in an incident, where you drove D2177 causing damage to the Company vehicle.

At the conclusion of the investigation it has been determined you were negligent whilst performing your driving duties.

As a result of this negligence the Company seeks to recover the cost of the damage for the Company vehicle of $3,100 from you, by way of instalments of $100 per week. Should you agree to pay this amount, included in this letter is a section for you to sign and return to me.

Failure to repay this cost of damage may affect your ongoing employment, and result in the termination of your employment.

Yours sincerely

Don Gailer

State Manager

K&S Freighters”

[33] The conversation between Mr Gailer and the applicant continued:

Gailer I’ll have to wait for a call from Melbourne. Off the record, you should pursue

this as far as you can because what is being done here in unfair. If you repeat this I will deny saying it.

[34] After receipt of a telephone call, Mr Gailer said to the applicant:

Your employment has been terminated. You will need to wait for a letter.

[35] A short time later, the applicant received another letter dated 9 September 2009 [CB-2]

[36] That correspondence, inter alia, states:

“I wish to confirm details of our discussion today in relation to your employment with K&S Freighters – based at Coopers Plains, Qld.

At the conclusion of the investigation into a vehicle accident on 25^th August 2009, it was determined you were negligent whilst performing your driving duties.

As such the Company sought from you to recover the cost of this damage to which you refused, and as a result it is with regret that I advise you that your employment is terminated effective immediately.”

Yours sincerely

Don Gailer

State Manager

K&S Freighters

Applicant’s financial position pre and post termination of employment

[37] Prior to his dismissal, the parties agree that the applicant was earning a gross weekly wage of $1050.00

[38] Since being dismissed, the applicant has worked casually as a driver earning an income of $4,555.24. Since April 2010, the applicant obtained a full time position.

Mr Taylor’s evidence

[39] Mr Harvey Taylor, truck driver with the respondent, gave evidence in support of the applicant.

[40] Mr Taylor has been employed by the respondent for over 15 years. Mr Taylor is a Union job delegate.

[41] Upon commencement of his employment with the respondent, Mr Taylor was not aware of any company document which said that drivers would have to pay for any damage they might have caused to a vehicle.

[42] He did, however, become aware of such a Policy [Exhibit 6 – KE 2] about one year ago when the respondent had circulated a memorandum to employees to that effect. All drivers were asked to sign the document. Mr Taylor did not sign the document and to his knowledge, neither did any other employee.

[43] Two weeks after the memorandum had been circulated, a meeting was held between drivers and management. The company Policy [Exhibit 6 – KE 2] regarding payment for damaged vehicles was explained and drivers were asked to acknowledge receipt of the new handbook. Mr Taylor did not sign the document as he disagreed with the new Policy.

[44] Mr Taylor thought that the applicant may not have been at that meeting because he worked on the afternoon shift and the meeting had been held in the morning.

[45] Mr Taylor was involved in meetings between the applicant and management and specifically between the applicant and Mr Gailer around the time of the applicant’s accident at work. After that initial meeting, where the applicant had been told that he had to pay for the damage to his vehicle, Mr Taylor contacted other drivers, without the knowledge of the applicant, and arranged for a contribution to be made by drivers to assist the applicant to pay for the amount of the damage.

[46] Upon the applicant becoming aware of the driver’s proposed contribution, he says that the applicant was uncomfortable with others assisting him and had determined that he should not have to pay for the damage as he claimed not to have been careless or negligent in driving the truck.

[47] A further meeting was held between the applicant and Mr Taylor with Mr Gailer.

[48] Mr Taylor confirmed that Mr Gailer had made the comments so alleged by the applicant to the effect that the applicant should pursue the matter because of its unfairness.

Respondent Witnesses

[49] Ms Kaye Evans

Mr Don Gailer

Ms Kaye’s Evans’s evidence

[50] Ms Evans is the National Human Resources Manager for the respondent. There is no Queensland based Human Resources Manager.

[51] The respondent Policy that drivers must pay for damages caused to a vehicle due to drivers’ negligence is contained within the K&S Employee Handbook and also in the Vehicle Policy [Exhibit 6 – KE 2 – updated in March 2009].

Ms Evans stated that there was no mention of the respondent’s Policy position concerning damage to vehicles in the Certified Agreement between the parties [K & S Freighters Pty Ltd Transport Employees’ (Queensland) Agreement 2005 (AG2008/1307)] [the Enterprise Agreement].

[52] Clause 9.5 of the Enterprise Agreement, under the heading Employee Issues states at sub-clause (d):

“Incidents of serious misconduct such as fighting, under the influence of alcohol, stealing, unsafe practices, use of illegal drugs or drug abuse, harassment, bullying, serious or potentially serious vehicle accidents, equipment abuse, etc will result in termination. Other unacceptable behaviour may result in termination.”

[53] When queried, under cross-examination, as to whether the incident in which the applicant had been involved could be considered as ‘serious’, Ms Evans agreed that it did not fit within that category.

[54] The Policy [Exhibit 6 KE 1] had existed since 2005, but had not been enforced until February or March 2009 when Exhibit 6 KE 2 was introduced. After that period, four or five drivers had been dismissed for failure to pay for damages incurred – one being dismissed over the non-payment of damages of $200.00

[55] Ms Evans said the Incident Report Form had been sent to K&S Executive General Manager based in Melbourne [Mr Steve Fanning], herself and the Queensland Operations Manager.

[56] Mr Steve Fanning made the decision that the applicant had been at fault and should pay for the damages to the truck. On the evidence, the information on the front of the Incident Report Form was all that was available to the General Manager when making his determination.

[57] Exhibit 5 is a copy of the Incident Report Form – Notification and Investigation document upon which the particulars of the incident were recorded.

[58] Under the heading “Type of injury & Part of body injured/equipment/ plant/vehicle/freight damaged”, the following is written:

“Bent the bumper bar front left hand side”

Under Point 3 “Incident Description” is recorded:

“Driver alleges when I was backing into the dock at Onesteel, Acacia Ridge I must have got the left hand corner of the bumper Bar caught on the fence and bent it”.

Under Part 4 “Immediate Containment Action” is recorded:

“Chris was able to straighten it before he returned to the depot and advised him to be more careful and aware of your surroundings”

[59] Ms Evans referred to correspondence she claimed the applicant had sent to the respondent admitting that he was at fault in the accident. That correspondence [DG2] to Exhibit 4, dated 1 September 2009, states that:

Dear Sirs,

Approximately one and a half weeks ago (mid August 2009), I had an accident in one of the company trucks while performing my duties at work. I admit fully to liability for this accident in accordance with standing company Policy. I have since been informed that I am to pay one hundred dollars ($100.00) per week from my nett pay, until the amount owing for the repairs is reimbursed to the Company.

Due to previous health issues affecting my work, and subsequent debts and continued living expenses, this amount is over and above my current means.

I would humbly ask for an extension for this payment plan. I am willing and able to pay the amount of fifty dollars ($50.00) per week, beginning after the start of 2010.

Please find attached a copy of my current financial incomings and outgoings, these all being approximated amounts to clarify my situation.

I look forward to hearing favourably from you in the near future. Thank you

Sincerely

Chris Birt

[60] This correspondence was written on letterhead which had Eureka Flags on either side of the page. The applicant denied any knowledge of this letter. It was asserted by the applicant that Mr Greer (a work colleague known to the applicant) had written and sent the letter to the respondent. The applicant says all that he discussed with Mr Greer was his financial position at the time. The applicant later became aware that Mr Greer was a Union job delegate.

[61] Ms Evans was unaware whether the applicant had been informed about the company’s Vehicle Policy [Exhibit 6 – KE 2], however, she stated that the applicant had signed an acknowledgement of receiving and reading the handbook [Exhibit 6 – KE 1].

[62] Ms Evans was asked to consider the detail of the Vehicle Policy by the advocate for the applicant specifically where it stated, inter alia that:

“Accident/Incidents

.…

An employee may be required to meet part or all of the cost of repairing any damage caused to a Company vehicle, where the employee or a driver authorised by the employee was negligent”. [FWA emphasis]

[63] Ms Evans stated that the ramifications of that Policy upon the employee who had authorised another to drive their vehicle [and where an accident/damage occurred to the vehicle] were unfair.

[64] Ms Evans stated that contrary to the provisions of the Employee Handbook [Exhibit 6 – KE 1] which states inter alia, that:

“2.25 Workplace Relations

The Company aims to provide a fair and reasonable rate of pay and terms and conditions to its employees in accordance with current workplace relations legislation and industry standards. Should you have any queries relating to your employment conditions, please contact your Manager or Human Resources Manager for assistance.”

the Policy in place did not accord with “industry standards”.

[65] Ms Evans also stated that no employee of the respondent had any training in terms of what constituted ‘negligence’ [PN640].

Mr Gailer’s evidence

[66] Mr Gailer’s evidence was that since enforcement of the Policy in 2009 [Exhibit 6 – KE 2], four or five drivers had been dismissed because of failure to comply with the Policy.

[67] When questioned by the advocate for the respondent, Mr Gailer said he was unaware of whether or not all of those dismissed were Union delegates/members.

[68] Mr Gailer stated that Mr Fanning made the decision to terminate the services of the applicant based upon a report produced by the applicant’s direct supervisor, Mr Wayne Woolacott.

[69] Upon hearing that the applicant was not intending to repay the amount of the damages, the decision to terminate his services was made.

[70] Mr Gailer stated that he did not know what process was utilised by Mr Fanning to determine negligence on the part of a driver.

[71] Mr Gailer was also unaware whether Mr Fanning had spoken to the applicant about his version of events. However, Mr Gailer agreed with the proposition put by the advocate for the applicant that the decision to terminate the applicant’s employment would have been made quickly by Mr Fanning on the basis of the first page of the Incident Report Form. [PN516]

[72] The applicant had not admitted to Mr Gailer during his meeting that he had been negligent in driving the truck.

Consideration of Evidence and Conclusion

[73] It is generally accepted that “negligent” conduct is established when a person’s conduct has fallen below the standards of behaviour expected of a reasonably prudent person acting under similar circumstances.

[74] The respondent’s submissions were that there was a valid reason for the applicant’s termination of employment pursuant to s. 387(a) of the Act.

[75] The respondent had found that the failure to comply with the Policy constituted serious and wilful misconduct.

[76] The respondent says that it was not in contention that the applicant was driving the vehicle which was damaged, and that the respondent had a Policy [Exhibit 6 – KE 2] which required employees who had damaged company vehicles through negligence to compensate the company for the damage or face termination of employment.

[77] The respondent states that it is established at common law that an employer is entitled to recover from an employee monetarily for damage which is caused negligently by the employee to the employer’s property. [Lister v Romford Ice & Cold Storage Ltd (1957) AC 555; Bolton Gems Pty td v Gregoire – Supreme Court of New South Wales Equity Division – 2622 of 1992]]

[78] Overall, the respondent asserts that:

(a) it had a clear Policy, which was both reasonable and lawful;

(b) the applicant had driven the respondent’s vehicle in a negligent manner in that he had failed to look out for obstacles while reversing the vehicle;

(c) the applicant’s conduct was a hazard to health and safety; and

(d) the applicant failed to comply with the Vehicle Policy to repay the damage to the vehicle.

[79] The applicant has submitted that the Vehicle Policy [Exhibit 6 – KE 2] could not form part of the employee’s contract of employment. The respondent however, says that it was available to employees and employers to agree on variations to their employment contract from time to time. They say that this is exactly what the applicant did when he underwent the re-induction process and agreed to the updated Policy [Exhibit 6 – KE 2].

[80] The evidence, however, does not lead to this conclusion. I have accepted that the applicant at no stage was aware of either Policy (Exhibit 6 – KE 1 and KE 2] or had agreed to the contents therein.

[81] The respondent says that the Vehicle Policy [Exhibit 6 – KE 2] constituted a reasonable and lawful direction by the respondent to the applicant. Within that context, the respondent (and the applicant) cited Woolworths Ltd t/a Safeway and Brown (2005 AIRC, PR963023, Full Bench) and the cases referred to therein – The Technical Service Guild of Australia and Concurrent Computer Corporation Pty Ltd (1990 AIRC, Lear C, Print J3468).

[82] In Brown, the Full Bench commented (at [34], footnotes excluded) as follows:

“In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded. A failure to comply with a direction to do or refrain from doing something in compliance with a employer’s policy will not provide a valid reason for termination of employment where:

(a) the policy, or a direction to comply with the policy, is illegal;

(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(c) the policy, or a direction to comply with the policy, is unreasonable.

What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT Case, albeit in a somewhat different context, it is not the role of the Commission “… to interfere with the right of the employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”

Even where a breach of policy (or failure to comply with a direction to observe a policy) provides a valid reason for termination of employment, it is well established that the termination may nevertheless be harsh, unjust or unreasonable.

For example:

. the employee may establish ignorance of the policy;

termination of employment may be a disproportionate response to the breach having regard to its nature and the employee’s length of service and prior history;

the employee may demonstrate prior non-enforcement of inconsistent application of a policy which, in the particular circumstances, render termination for breach of the policy harsh, unjust or unreasonable (although it should be noted that “…..merely because in the past, another employee in breach of the policy may have been dealt with in a particular way other than dismissal is not, of itself, a reason why subsequent dismissals in similar circumstances might be said to be harsh.”;

the evidence may disclose that the policy is being applied in a discriminatory fashion or is used as a pretence to disguise a real reason that is impermissible (e.g. union membership or non union membership).

This list is not intended to be exhaustive and each case will turn on its own facts.”

[83] The circumstances contained within the authorities presented to the Tribunal are discretely different. However, primarily, the common thread is that Policies of the type under consideration would only come into effect upon the establishment of negligence on the part of the employee.

[84] It is clear that the applicant had an obligation to perform his duties with due diligence. The circumstances of this case, however, go to other questions of whether the Policy was reasonable; whether the applicant had knowledge of the employer’s Policy regarding negligent driving; whether the applicant had been negligent in his driving; the extent of the investigation undertaken by the employer into the alleged ‘negligence’; whether the applicant had been given a reasonable opportunity to respond to the allegations of negligent driving and whether there were any mitigating circumstances to which the respondent should fairly have regard.

[85] The respondent says that the applicant was afforded procedural fairness by the respondent and had the opportunity to defend himself against the assertions made by the respondent. In all, the respondent says that the applicant was given a “fair go all round” and not denied substantive fairness (s. 381(2) of the Act.

[86] There is no evidence before the Tribunal to show that ‘procedural fairness’ was afforded to the applicant by the respondent. I have accepted the applicant’s evidence that he was simply told by Mr Woolacott that “driver error” had occurred and that he was required to pay for the damages to the truck. .

In addressing any remedy which might be considered by the Tribunal if the application was successful, and acknowledging that the applicant was not seeking reinstatement, the respondent says that compensation should not be more than nominal “for the reason that the Applicant’s own misconduct contributed to the termination of his employment, and accordingly the Commission is obliged to reduce the amount of compensation it would otherwise have awarded (see s. 392(3) of the Act.

[87] In considering the evidence before the Tribunal, I have found that the applicant gave honest and straight forward evidence. His driving history was both lengthy and impressive. Apart from being absent from work for a short period of time because of his illness, he had an incident free record with the respondent and an incident free record whilst driving heavy machinery.

[88] I have determined that the evidence given by the applicant and Mr Taylor was truthful when they recounted comments made by Mr Gailer to the effect that the Policy was unfair and it should be challenged.

[89] Upon the question of whether the applicant had viewed and/or read the Employee Handbook, the only credible direct evidence given was that of the applicant. He was adamant that he had not been advised of the respondent’s Policy upon the commencement of his employment in 2008 and at his re-induction course in 2009, and I have accepted that evidence.

[90] Notwithstanding the fact that the applicant’s signature was on the back page of a document in May 2009 [Exhibit 6 – KE 3], when the applicant returned to work and was undergoing a re-induction program, the applicant had not ticked the “yes” boxes to indicate that he had read and understood all of the material contained in the Handbook. While the respondent says that the failure to record a “yes” to all questions posed is of no real significance because the applicant ultimately signed the back page, I have formed the view that the failure to record a “yes” on the document is more indicative of an employee signing something in a hurry. The applicant’s evidence around this point that his supervisor, Mr Woolacott was in a hurry to go home has been accepted.

[91] I have therefore accepted that the applicant signed the page without any knowledge of the content of the Handbook.

[92] There has been no challenge to the applicant’s claim that because he worked on the afternoon shift, he was not present at Union meetings or when Mr Gailer held a toolbox meeting with drivers to discuss the reinforcement of the Policy [Exhibit 6 – KE 2], because those meetings were held in the mornings. Previously, the applicant had attended a couple of meetings but there had been no mention of the employer Policy at that time.

[93] I have accepted the applicant’s evidence that he was unaware of the unsigned correspondence sent to the respondent presumably on his behalf by Mr Greer.

[94] The applicant referred the Tribunal to s. 326(1) of the Act and its provisions relating to certain terms contained within an employment contract which have no effect. These terms go largely to establishing, amongst other things, that the employer must not deduct an amount from the amount payable to an employee in relation to the performance of work under certain circumstances.

[95] The respondent’s says that it never sought to deduct any money from an employee’s wages unilaterally but would only do so with the agreement of the employee.

[96] In the circumstances of this case, I have not accepted respondent’s submissions that employees had signed their acceptance of the Policy. The direct evidence of the applicant and Mr Taylor show that this is not true. It can also be reasonably inferred from the dismissal of other employees since the enforcement of the Policy, that there was no overall acceptance of the employer’s Policy.[Exhibit 6 KE 2

[97] The applicant asserts that in the circumstances of this case, the Policy [Exhibit 6 – KE 2] permits the respondent to make a unilateral and unreviewable determination of negligence. The evidence in this case supports that proposition.

[98] The applicant states that he denied any negligence on his part, and notwithstanding those protestations, the respondent determined that ‘negligence’ on his part had occurred. There was no genuine investigation conducted on the part of the respondent into the alleged ‘negligence’. On the respondent’s own evidence, there had been no training given to any party as to what constituted ‘negligence’ by a driver of a vehicle.

[99] Mr Gailer was unaware of what processes were undertaken by the respondent in its investigation of the applicant’s claims. The applicant had not spoken to Mr Fanning and there was no suggestion by the respondent that Mr Fanning had sought to discuss the issue with the applicant.

[100] I have accepted the applicant’s evidence that he exercised due care and diligence whilst driving the truck on 25 August 2009. The applicant was an experienced driver with an impeccable driving record. Against that background, a find of “negligent” driving on this one occasion is highly questionable.

[101] The applicant gave evidence during the hearing of mitigating circumstances concerning the accident. These related to the time of the evening when the accident occurred; that there were no other people around who might have been able to assist him in positioning his vehicle and that the reflection from the lights in the yard caused difficulty with driver vision. On the evidence, these concerns do not appear to have been considered by the respondent at the time.

[102] In the course of cross-examination, the applicant said that with “hindsight” the accident may have been avoided. In my view, this is not an admission of guilt as asserted by the respondent but rather a common sense comment which would be made by the average person when reflecting upon any unfortunate incidents/accidents in which they have been involved from time to time.

[103] The applicant asserts that the Policy [Exhibit 6 – KE 2] “operates to make employees the de facto insurer for the employer”. Further, it states that the terms and conditions of employment in the Enterprise Agreement do not alert an employee to the level of risk they are undertaking in their employment.

[104] On the respondent’s own evidence [Ms Evans], a policy (Vehicle Policy – KE2 – Exhibit 6) which states, inter alia that:

“…An employee may be required to meet part or all of the cost of repaying any damage caused to a Company vehicle, where the employee or a driver authorised by the employee was negligent”

is unfair.

[105] Notwithstanding the use of the word “may” in the Policy [Exhibit 6 – KE 2], there is no question that the Policy with the above inclusion, without any further explanation or qualification as to how it could or would be implemented, has all the hallmarks of unfairness.

[106] The applicant cited s. 324(1) of the Act when questioning the legitimacy of the employer’s demand for payment for damages. This section of the Act primarily relates to what are termed “permitted deductions”. Authorisation by an employee for deductions to be made is at the core of the section.

[107] There was never agreement between the applicant and the respondent that he would agree to pay for damages to his vehicle.

Considering the submissions made around Brown:

[108] “(a) the policy, or a direction to comply with the policy, is illegal; [Brown]

The respondent was entitled to implement a Policy. However, that comment must be read in conjunction with the following decisions.

In M. Wake and Queensland Rail (U2006/4054 – PR974391 at PN23 the Full Bench of the Australian Industrial Relations Commission stated:

“There is one additional issue requiring comment. The applicant’s policy states that any deliberate breach involving pornographic or sexually related material will result in termination of employment. Although in this case we have decided not to interfere with the application of that policy, it ought not be assumed that the Commission would uphold the employer’s right to apply the sanction of termination in all cases of deliberate breach regardless of the circumstances. As s. 652 of the Act makes clear, in determining whether a termination of employment is harsh, unjust or unreasonable the Commission is required to take a range of matters into account. In addition the statutory provisions are intended to ensure a “fair go all round”: s.635(2). In the proper exercise of its functions the Commission must exercise its own judgment. Whatever sanction the employer’s policy prescribes, the Commission must decide whether the termination is harsh, unjust or unreasonable.” [FWA emphasis]

Further, the Full Bench in Brown states:

“It is possible to discern in decisions of the Commission involving a breach of an employer’s policy a conceptual tension as to whether mitigating factors ought be treated as going to the existence of a valid reason for termination within the meaning of s.170CG(3)(a) or only as relevant to the overall determination of whether the termination was harsh, unjust or unreasonable in accordance with s. 170CG(3). In our opinion, the better view is that where a breach of policy involves a breach of the implied term requiring an employee to obey lawful directions sufficient to justify dismissal at common law then the breach will be a valid reason for termination of employment in the sense of a reason that is “sound, defensible or well-founded.”[25] Mitigating circumstances are then relevant (pursuant to s. 170CG(3)(b) to (e) to a determination of whether the termination of employment is harsh, unjust or unreasonable notwithstanding the existing of that valid reason.” [FWA emphasis]

[109] “(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee”; [Brown]

The respondent made submissions that the Policy is designed to reduce costs relating to damage to vehicles. Ms Evans’ evidence was that the Policy existed because of “concerns around careless and negligent driving, which had resulted in several hundred thousands of dollars cost to the company” [Exhibit 6 – point 3]

From those submissions, it appears that the Policy is more directly linked to ensuring that the employer does not have to meet the cost of any damage caused to their vehicles. However, that being said, the subject matter does relate to the matter of employment.

[110] (c) the policy, or a direction to comply with the policy, is unreasonable”; [Brown]

In the discrete circumstances of this case, the implementation of and direction to comply with the Policy was unreasonable.

It should be noted that while the two Policies [Exhibit 6 – KE 1 and 2] are identical when it comes to the requirement for an employee to pay for damages to a vehicle where negligence on the driver’s part has occurred, KE 2 adds the further component of compelling an employee who has authorised another employee to drive his vehicle to accept liability in the event that the authorised employee has driven the vehicle negligently.

Notwithstanding that the circumstances of this case were that the applicant and not an authorised driver had damaged his vehicle, the Vehicle Policy [Exhibit 6 – KE 2] in toto is unfair and unreasonable.

There were significant mitigating circumstances concerning the applicant’s involvement in the accident which should have been considered and there was a clear lack of process and thereby fairness afforded to the applicant. Further, the unreasonableness of the decision to terminate the services of the applicant shows a significant level of harshness. These issues will be addressed hereunder

Consideration of s.387 of the Fair Work Act 2009

[111] Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 any other matters that FWA considers relevant.

[112] Re (a)

The failure of an employee to obey a lawful direction from the employer in the case of Policy [Exhibit 6 – KE 1] would provide, prima facie, a valid reason for termination of employment.

As it relates to the findings in this case, the comments in Brown – ie “mitigating circumstances are then relevant (pursuant to s.170G(3)(b) to (e) to a determination of whether the termination of employment is harsh, unjust or unreasonable notwithstanding the existence of that valid reason” must be considered.

[Exhibit 6 – KE 2] which, from the evidence, was the Policy which was enforced by the respondent as from March 2009, requires different consideration. In terms of the facts of this case, it is the same principle which is relied upon in each Policy – ie a driver paying for damages if found to be negligent in driving a vehicle. The question of an authorised driver driving the vehicle is not in issue. That Policy, in toto, however, is unfair and unreasonable.

While a valid reason exists for the termination of employment pursuant to the application of Policy [Exhibit KE 1), the implementation of Policy [Exhibit 6 – KE 2] in its totality is an argument for another day if and when in full the Policy was to be enforced.

[113] Re (b)

The applicant was notified of the reason for his termination of employment by his supervisor. The reason given by the applicant’s immediate supervisor, Mr Woolacott was “driver error”

[114] Re (c)

The applicant was not given the opportunity to respond to the reason given for his termination of employment. His supervisor, Mr Woolacott, simply told him that his ‘driver error’ meant that he would have to pay for the damages to the vehicle or face termination of employment. Upon further discussion with the respondent, the focus of the debate continued in that vein.

[115] Re (d)

The applicant was permitted to have his job-site delegates in attendance with him. The applicant understood that Mr Taylor was an on-site job delegate of the Union, but he was unaware that Mr Greer was a Union delegate.

[116] Re (e)

The termination of employment related to the alleged ‘negligence’ on the part of the applicant. The applicant believed that he had driven carefully. Further, the applicant had no knowledge of the Policies [Exhibit 6 KE 1 and KE 2] or that a relatively minor accident in the truck he was driving would lead to the immediate termination of his employment unless payment was made by him for the damage caused. Against that background, the applicant had not been warned about the ramifications of an accident prior to the decision made to terminate his employment.

All that realistically could have been relied upon was the terms of the Enterprise Agreement between the parties which made reference to the type of behaviour which might constitute misconduct – this included “potentially serious vehicle accidents”. Ms Evans, for the respondent, did not believe that the incident which occurred with the applicant’s truck was of a serious nature.

[117] Re (f)

The respondent is adamant that the Policy has been introduced to reduce increasing costs associated with damage to vehicles.

[118] Re (g)

The dedicated Human Resources officer for the respondent was based in Melbourne. Even had there been a dedicated human resources officer in Brisbane, the evidence shows that no-one in a senior position within the company understood what process had been undertaken by the ultimate decision-maker (save for looking at the front page of the Incident Report Form) to terminate the applicant’s employment. As well, there had been no training instigated by the respondent around what constitutes ‘negligent’ driving on the part of a driver.

[119] Re (h)

The employer was aware of the nature of the applicant’s illness (cancer) and that he had undergone considerable medical treatment, at some monetary cost, whilst off work. The applicant had returned to his position with the respondent company and worked his way back to performing full time duties. He had an incident free working history with the respondent and had never been reprimanded or counselled for poor work performance.

The accident which had occurred was not of a serious nature. The nature of the damage to the vehicle was not serious and from the evidence before me, there was no risk of injury to anyone.

The respondent did not take into account the work history of the applicant nor any mitigating circumstances which applied. The Policy in question, as it has been implemented in this case, appears to be a non-negotiable Policy with the question of ‘negligence’ being unilaterally determined by the respondent without any consideration of the employee’s views.

[120] In all, I have found that the termination of the applicant’s employment was harsh, unjust and unreasonable.

Remedy

[121] The respondent states that the Tribunal, if it found in favour of the applicant’s claim, should make a nominal payment because of the applicant’s “misconduct” in the performance of his duties.

[122] There is nothing in the evidence which shows or suggests that the applicant’s behaviour could constitute misconduct. That he did not respond positively to the demands of the Respondent, in the circumstances of this case did not constitute misconduct.

[123] An accidental error occurred whilst the applicant was performing his duties. A high level of skill and concentration is required by drivers of this type of vehicle. However, given the nature of the work performed. it seems not unusual that accidents which are not the result of negligence (in the true sense of the word) will occur. The possibility of that occurring was, on the available evidence, never considered by the respondent.

[124] The applicant has not sought reinstatement. I find in the circumstances of this case that compensation is the appropriate remedy for the reasons that follow. The applicant seeks to be paid an amount equal to the remuneration he would have received between the date his employment was terminated and the date upon which new employment was commenced.

[125] The relevant statutory provisions governing the award of a remedy of compensation are set out below:

“392 Remedy-compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.”

[126] There is nothing before the Tribunal to suggest that an order for compensation would have any effect on the viability of the employer’s enterprise.

[127] The applicant’s period of employment is not long, however, in the particular circumstances of this case, there is sufficient evidence which weighs in favour of the remedy sought.

[128] There is nothing before the Tribunal to suggest that the applicant would not have continued in the employment of the respondent for a further twelve months but for the termination of his employment.

[129] The applicant has mitigated the loss of employment by undertaking casual employment and then by gaining permanent employment. The applicant has earned the amount of $4,055.24 gross from one employer since the termination of his employment. The applicant received a further amount of $500.00 from another employer during the months of January and February 2010. The total amount earned is $4,555.24. The applicant’s full time employment commenced in April 2010.

[130] No notice or payment in lieu of notice was given or made to the applicant in relation to the termination of his employment.

[131] There has been no misconduct found on the applicant’s part and therefore there are no grounds to reduce any considered remedy on such account.

[132] The amount of compensation ordered does not include any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal.

[133] The amount of compensation Ordered does not exceed the lesser of the total remuneration of the applicant for the period of his employment during the 26 weeks immediately before the dismissal, and half the amount of the high income threshold immediately before the dismissal.

[134] There are no other matters which the Tribunal should take into account.

[135] For all of the above reasons, I have decided that an amount equal to 20 weeks remuneration be paid to the applicant by the respondent. This amount equals $21,000.

[136] Accordingly, a separate Order [501148] providing for this remedy in these terms will be issued.

DEPUTY PRESIDENT

Appearances:

A. Carter for Birt

P. Vitale for K&S Freighters

Hearing details:

2010

Brisbane

May 4, 5.

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<Price code C,PR501168