Darren Brittain v Nova 5 Group Pty Ltd T/A AJM Transport

[2017] FWC 1577

[2017] FWC 1577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Brittain
v
Nova 5 Group Pty Ltd T/A AJM Transport
(U2016/12511)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 MARCH 2017

Application for an unfair dismissal remedy.

[1] Mr Darren Brittain was employed by Nova 5 Group Pty Ltd trading as AJM Transport from 12 October 2015. Mr Brittain alleges he was unfairly dismissed on 4 October 2016. AJM alleged that Mr Brittain had not been dismissed, but that he had abandoned his employment.

[2] In accordance with ss.398 and 399 of the Fair Work Act 2009 I decided after conferring with the parties to conduct the matter by way of a conference.

Evidence of Mr Brittain

[3] Mr Brittain said that on 27 September 2016 he sent a text message to Mr Phil Dilosa, the Operations Manager, that he had had an accident. In a follow up phone call he was told to drive to the Melbourne Depot. When he arrived at the Depot he explained to Mr Dilosa what had happened and he was told to go home and was told he would be contacted.

[4] In a subsequent telephone call with Mr Dilosa he was told he was to have that night off and was told he would be allocated local work until further notice. At the time of the accident Mr Brittain was a change over driver. He would drive the trailer to a pick up point and then swap the trailer and then bring the new trailer back. He told Mr Dilosa that he could not do local work. In his oral evidence Mr Brittain said that he found doing local work too stressful and he had medical advice not to do this work.

[5] He said that Mr Dilosa told him it was not his decision and the request had come from head office. After attempting to discuss this with Mr Dilosa and getting nowhere, he said “this is bull shit, I have not done anything wrong, I told you what happened. Whatever I will take the night off.” He then hung up.

[6] That night he called another company to see if they had any work and he performed work on 28 September 2016.

[7] No-one from AJM contacted Mr Brittain for the rest of the week. He assumed he was stood down because he would not do local work. Mr Brittain said was normally called and told what work he was to do.

[8] Because he had plenty of sick leave, when he submitted his run sheet on 2 October 2016, he put down personal leave/sick leave. On 4 October 2016 he did not get paid sick pay but his annual leave was paid out. He was paid until 26 September 2016.

[9] On 5 October 2016, he sent an email to Ms Debbie Thomas in payroll to ask about his pay and to get someone to call him to discuss his employment. He also provided a medical certificate which he had obtained on 5 October 2016.

[10] He called Mr Roohan on 8 October 2016 in response to an email asking him to call. Mr Roohan told him he had abandoned his employment. He then sent Mr Roohan an email in which he advised that he had not been told that he was no longer employed and he had not advised that he no longer wished to be employed, but got no response. He said he expected to return to work on Thursday as an interstate driver as per his medical certificate.

[11] On 11 October 2016, he sent another email to Ms Debbie Thomas querying his pay. On the same day, she replied was that she was advised to pay him for what he had done; pay out his leave; and terminate him in their system. He then replied advising that he had not been terminated. He pointed out that he needed to be told he had been terminated.

[12] On 13 October 2016, he lodged this application.

[13] Ms Andrea Brittain, Mr Brittain’s cousin and house mate, gave evidence that she heard the telephone conversations with Mr Dilosa and Mr Roohan. She said that in his telephone conversation with Mr Dilosa, Mr Brittain did not resign his employment. She said he did not say “best we should part ways.”

Evidence of AJM Transport

[14] On 4 October 2016, Mr Anthony Mansell, the owner of AJM, made the decision to pay out Mr Brittain’s annual leave. He did so because they had been trying to get hold of Mr Brittain and had not been able to.

[15] Mr Mansell said he believed that Mr Brittain had abandoned his employment. At the time he reached this conclusion, Mr Mansell was aware that Mr Brittain had put in a time sheet and that he had put on the time sheet that he was sick. He said that Mr Brittain had not come into to talk to them; Mr Brittain was working for another company; and was non contactable. He understood that in a conversation between Mr Brittain and Mr Dilosa, Mr Brittain had said that “we’d better part ways.” So he decided Mr Brittain had abandoned his employment so he arranged for his entitlements to be paid.

[16] Mr Mansell said he knew Mr Brittain was working for someone else as they use the same agency and he had spoken to them and was told that Mr Brittain worked through them. He said that Mr Brittain had worked on 28 September 2016¹ for the agency.

[17] In response to a question about what attempts had been made to contact Mr Brittain, Mr Mansell said that Mr Dilosa had tried to contact Mr Brittain. He was referring to the one text message sent by Mr Dilosa on 27 September 2016. No further attempt was made to contact Mr Brittain.

[18] When asked why Mr Brittain was taken off the truck, Mr Mansell said Mr Brittain took himself off the truck. Mr Mansell said that Mr Brittain was told he had to come and see them. When it was put to Mr Mansell that Mr Brittain had been told he would need to do local work Mr Mansell said Mr Diloso said that was incorrect. He was told to come in the next day as he had had an accident and that was consistent with their induction. He had to have the night off as a safety requirement.

[19] Mr Dilosa, the State Manager of Victoria, said that on 27 September 2016 Mr Brittain had had an accident whilst driving his truck. Mr Brittain said his truck had been hit by a car but the car did not stop and he could not get any details of the vehicle. Mr Dilosa told him to drive to the Melbourne Depot.

[20] Mr Dilosa said when Mr Brittain arrived at the Depot he took photos of the truck and told Mr Brittain that he had reviewed the truck tracking device and he could not see that anything had occurred at Albury where Mr Brittain had said the accident occurred. He told him to think about the details because Mr Dilosa would need to explain what happened and it would need to match the tracking data. Mr Dilosa told Mr Brittain to go home and have a rest. He said he would talk to the managers in Newcastle and give him a call in the afternoon after he had found out what they wanted him to do.

[21] Later that day Mr Dilosa sent Mr Brittain a text message telling him he was not required to work that night and for him to give him a call later. Mr Dilosa said he did not require him to work because of the accident.

[22] Mr Brittain rang him and Mr Dilosa told him the action plan. Firstly, he was to have the night off; then they would do a drug and alcohol test; and then it might be time to have a rest off the line haul which was the night work. While he said that he may do local work he denied telling Mr Brittain that he would be doing local work. However it was clear that if he didn’t do local work, he would not have been provided with work. It was either local work or have time off. It was Mr Dilosa’s view that Mr Brittain should have a break from working nights.

[23] Mr Dilosa said Mr Brittain was offended because no-one was concerned about his safety. Mr Dilosa explained that this was why he was having the night off. Mr Brittain then told him he didn’t want to play games, that he didn’t do anything other than line haul and that they knew that. After saying again that he didn’t play games he said that it was best if they parted ways. Mr Brittain then hung up.

[24] Mr Dilosa tried to call him back and left a voice message but Mr Brittain did not return the call as he was upset at the time. He sent Mr Dilosa a text message advising that he would call back when he calmed down.

[25] He said he had no intention of letting Mr Brittain go. He made no further attempt to contact Mr Brittain.

[26] Mr Dilosa told the Operations Manager in Newcastle that Mr Brittain had said it was best that they part ways. Mr Dilosa did not initially take this comment seriously but when Mr Brittain did not call him back and he found out he was working for someone else, he concluded that Mr Brittain had chosen to leave his job.

[27] In cross examination, Mr Dilosa said that Mr Brittain did not advise him that he was sick nor did he ask for any leave.

[28] Mr Dennis Roohan, the General Manager, was told by Mr Dilosa that there had been an incident on 27 September 2016.

[29] Mr Roohan said that because Mr Brittain was driving a competitor’s vehicle and because he had told Mr Dilosa that it was best for them to part ways it was decided that Mr Brittain had left the company.

[30] It was Mr Roohan’s view that his drivers could not drive for a competitor in the same period because of the limitation on driving hours. But apart from this there was no prohibition on driving for other companies.

[31] Mr Roohan said that at the time the decision was taken to pay out Mr Brittain’s annual leave and remove him from the system, he did not know that Mr Brittain had completed timesheets advising that he was sick because they came in after the event.

[32] Mr Roohan did not have contact with Mr Brittain until after he had been removed from the books. He spoke to Mr Brittain and the conversation was short. He told Mr Brittain that they had not yet discussed the incident and that Mr Brittain’s last words to Mr Dilosa were that it was best if we part ways. He had been seen driving another truck. Mr Brittain denied this and said he had been a passenger and then he hung up.

[33] Mr Roohan accepted that he had no discussion with Mr Brittain prior to making the decision to remove his from the system.

Was Mr Brittain dismissed by AJM Transport?

[34] The evidence established that Mr Mansell decided to remove Mr Brittain from the books and pay out his annual leave. He made this decision knowing that Mr Brittain had submitted time sheets in which he had advised that he was unfit for work though he had not provided a medical certificate. The evidence also established Mr Brittain was not offered work after 27 September 2016. While reference was made by Mr Dilosa about local work Mr Brittain was never contacted and directed to perform local work. I am satisfied that Mr Brittain did not abandon his employment and his employment was terminated by AJM.

Was the termination of employment harsh, unjust or unreasonable?

[35] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[36] Mr Mansell made the decision to remove Mr Brittain from the books because he did not attend for work; he did not contact his employer; he had said to Mr Dilosa that it was “best we part ways”; and he had been seen driving for another employer.

[37] Mr Brittain said that he did not attend for work because he was not contacted by AJM and told what work he was to do. It was said that the normal practice was each day he would receive a phone call telling him what he was loading and where he was going.

[38] Mr Brittain denied saying that it was best if they parted ways. He accepted that he didn’t contact Mr Dilosa after 27 September 2016 despite agreeing to do so.

[39] He accepted that he drove for one night for another employer. However given he was not offered work by AJM this was not unreasonable.

[40] He accepted that he did not advise Mr Dilosa that he was unwell and he did not provide a medical certificate for the period until after his employment was ended. In fact, Mr Brittain did not attend his doctor until 5 October 2016.

[41] I am not satisfied that AJM had a valid reason to dismiss Mr Brittain.

[42] At the time the decision was made to dismiss Mr Brittain, AJM was aware that Mr Brittain had submitted timesheets that advised that he was claiming personal leave. Mr Mansell was aware he had driven another truck but given Mr Brittain had not been offered work by AJM and there was no prohibition on drivers working for others provided they did not breach the driving hours rules, he had not acted inconsistently with his contract of employment.

[43] I prefer Mr Dilosa’s evidence that Mr Brittain told him that it was best if they part ways to the evidence of Mr Brittain and Ms Brittain. I do so because I accept that Mr Dilosa bore Mr Brittain no animosity. It was his evidence that he did not want Mr Brittain to go. He had no issues with Mr Brittain’s performance. He did not take Mr Brittain’s comment seriously until he was made aware that Mr Brittain was driving for someone else. Mr Dilosa passed on Mr Brittain’s comment to Mr Mansell and Mr Roohan prior to the decision to remove Mr Brittain from the books.

[44] However that comment was made in a context where Mr Brittain believed he was only going to be offered local work which he said he was medically incapable of doing. I do not consider that that remark of itself justified the termination of Mr Brittain’s employment, particularly when he submitted timesheets which advised AJM that he was unwell. Mr Brittain’s failure to provide a medical certificate with his timesheet may have made him ineligible for paid sick leave but it did not justify his dismissal.

[45] Claiming sick leave whilst working for another employer might have provided AJM with a valid reason for the dismissal. However, I accept Mr Brittain’s evidence that he was medically fit to do interstate driving and that it was only local driving that he was medically not able to do and that at the time he thought that was all that was on offer by AJM.

[46] Mr Brittain’s dismissal was a result of a serious miscommunication between Mr Brittain and AJM which could have been resolved if either party had bothered to contact the other.

[47] However AJM in this matter relied on Mr Brittain’s conduct to justify the dismissal. That conduct was his failure to attend work. However Mr Brittain was not offered work after 27 September 2016. AJM’s reliance on him performing work for another employer does not justify his dismissal in circumstances where there was no policy preventing him from so doing and it did not conflict with his work for AJM. Further while his failure to notify AJM of his illness until he put in his timesheets contributed to the miscommunication, it did not justify his dismissal.

s387(b) whether Mr Brittain was notified of that reason;

[48] Mr Brittain was not notified of the reason for his dismissal prior to the dismissal.

s387(c) whether Mr Brittain was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[49] Mr Brittain was not given an opportunity to respond to the reasons for his dismissal.

s387(d) any unreasonable refusal by the employer to allow Mr Brittain to have a support person present to assist at any discussions relating to dismissal;

[50] As there was no meeting, this criterion is not relevant.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Brittain had been warned about that unsatisfactory performance before the dismissal;

[51] His dismissal was not related to unsatisfactory performance so this criterion is not relevant.

s387(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;

[52] I do not consider the size of the business impacted on the procedures followed.

s387(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;

[53] There were no dedicated human resources management specialists or expertise. I consider that this did impact on the procedures followed. However what is surprising about this matter is that not one of the managers involved decided to call Mr Brittain to ask him what was going on. Had that occurred then this whole situation may have been avoided.

s387(h) any other matters that the Fair Work Commission considers relevant.

[54] There were no submissions that there were any other relevant factors.

Conclusion

[55] I am satisfied that the dismissal was unjust and unreasonable. There was no valid reason for the dismissal and Mr Brittain was not afforded procedural fairness.

Remedy

[56] Mr Brittain is not seeking reinstatement of his employment.

[57] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[58] There was no evidence that any order would have an effect on the viability of AJM.

(b) the length of the person’s service with the employer;

[59] Mr Brittain had only been employed for a year when his employment was terminated. This is not a long period of service.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[60] The submissions in relation to this criterion were scant. However it was clear that this job suited Mr Brittain’s personal circumstances and there was no suggestion that he would have resigned his employment in the near future. Further there was no evidence of any concerns about Mr Brittain’s performance of his duties. I am satisfied that he would have remained in employment for at least one year. I asked for and was provided with his payroll records which disclosed that on average Mr Brittain earned $2,149.16 per week and had $109.44 per week paid to his superannuation account.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[61] Mr Brittain has obtained work from 14 November 2016.

(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;

[62] Mr Brittain has earned $25,982.15 plus $1,070.86 in superannuation since 14 November 2016 being approximately $8,660.72 per month plus $356.95 super per month.

(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;

[63] I anticipate Mr Brittain will continue to earn this amount monthly.

(g) any other matter that the Fair Work Commission considers relevant.

[64] It was submitted that as a result of losing his job Mr Brittain is required to do interstate driving which requires him to drive longer distances and be away from home for longer periods of time.

[65] While I appreciate these submissions I cannot ignore that what occurred was in part caused by Mr Brittain’s own behaviour. His failure to call Mr Dilosa or any other person at AJM as well as his decision to work for another employer without notice to AJM all contributed to the miscommunication that lead to his dismissal.

Conclusion

[66] Mr Brittain was out of work for five weeks. In that period he lost $10,745.80 plus $574.20 in superannuation. Since gaining employment he has earned a comparable amount.

[67] I therefore order Nova 5 Group Pty Ltd pay Mr Brittain $10,745.80 less tax according to law plus $574.20 to his superannuation fund within 21 days. An order to his effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

A. Brittain on his own behalf.

A. Mansell for the Respondent.

Hearing details:

2017.

Melbourne:

14 February.

1 Exhibit R1

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