David Burke v Evolution Traffic Control Pty Ltd T/A Evolution Traffic Control

[2016] FWC 238

[2016] FWC 238

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.739—Dispute resolution

David Burke
v
Evolution Traffic Control Pty Ltd T/A Evolution Traffic Control
(C2015/6841)

COMMISSIONER RYAN MELBOURNE, 18 FEBRUARY 2016

Alleged dispute about the conduct of an employee resulting in a first and final warning.

[1] An application was made on 7 October 2015 under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with the dispute resolution process found in clause 17 of the Evolution Traffic Control Victoria and AWU Traffic Management Agreement 2011 to 2012 (the Agreement). The application was filed by The Australian Workers’ Union (AWU) on behalf of the Applicant, Mr David Burke.

[2] The Agreement was approved under the Fair Work Act 2009 (the Act) on 30 January 2012. The employer covered by the Agreement is Evolution Traffic Control Pty Ltd (Evolution).

[3] The matter was subject to a conciliation conference of the parties on 27 October 2015 and 4 November 2015. The parties consented to the matter in dispute being arbitrated and the matter was listed for arbitration for 13 January 2015 and directions were issued to the parties.

[4] The AWU filed submissions and witness evidence on 26 November 2015. The respondent filed a series of documents on 17 December 2015.

[5] The material which the Respondent filed amounted to largely the same set of documents which it had produced to the Commission in response to an Order to Produce on 13 November 2015. The Respondent did not file an outline of submissions or any witness evidence.

[6] On 21 December 2015 I caused an email to be sent to the Respondent in the following terms:

“The respondent appears not to have complied with the Directions issued by the Commission, namely that it file:

(a) an outline of submissions;
(b) the names of any witnesses the Respondent intends to call and an outline of the evidence they will give;
(c) a copy of any document upon which it intends to rely; and
(d) a list of any authorities upon which it intends to rely,
by midday on 17 December.

It appears that, to date, the respondent has only filed a series of documents it intends to rely upon.

The Commissioner now directs you to file witness statements and an outline of submissions (arguments) by close of business on 22 December 2015.”

[7] The respondent requested an extension for filing additional material and this was refused.

[8] Despite this, the Respondent filed two witness statements on 12 January 2016 for Mr Ian Schramm and Mr Graham Dougan. On the day of the hearing the Respondent sought to introduce a further witness statement from Mr Christopher Rowe and sought to have Mr Rowe give evidence for the Respondent.

Background to the Dispute

[9] The Respondent provides traffic control services to other businesses. In March 2015 the Respondent was providing traffic control services to the Infrastructure Services part of the Downer Group of companies at a road resurfacing/reconstruction site along Jones Rd just south of the intersection with Bungower Rd in Somerville, Victoria. Jones Rd was a dual roadway with one lane for each direction. At the time of the incident Downer employees were engaged in the resurfacing of the west (or north bound) lane of Jones Rd whilst the east (or south bound) lane was used for traffic travelling in both directions. The construction area was about 1 km in length and as two side roads intersected Jones Rd within the construction area the Respondent had 5 employees engaged in traffic control at the time of the incident. The five Respondent employees comprised 4 Traffic Controllers and one Team Leader with all engaged in traffic control activities. The 4 Traffic Controllers were at fixed positions whilst the Team Leader moved along the roadway as the Downer employees who were engaged in the resurfacing work moved along the roadway. At the time of the incident on 19 March 2015 the Respondents employees were in the following positions. A Traffic Controller was located at each end of the stretch of Jones Rd being resurfaced. The Applicant was located towards the northern end of the work site at the intersection of Jones Rd with Two Bays Drive. Mr Daniel Sheppard, Plans and Permit Coordinator (who was filling in because of an otherwise unavailable employee) was located towards the southern end of the work site at the intersection of Jones Rd with The Vines. Mr Justin Bryant, Team Leader was near the intersection of Jones Rd and The Vines about 30 metres north of the Mr Sheppard.

The Incident

[10] A simple overview of the incident is set out below. A female driver drove a white 4WD vehicle through the work site travelling north along Jones Rd. The female driver appeared to deliberately strike a number of the safety bollards erected to separate north and south bound traffic. The female driver was driving in excess of the 40kph speed limit. The female driver ignored the slow and stop signs of the traffic controllers and appeared to aim her vehicle at two of the traffic controllers being Mr Bryant and the Applicant. The female driver nearly hit Mr Bryant as she drove past him. The female driver failed to stop when the Applicant held up his stop sign and he was forced to jump out of the way of her vehicle. The female driver did stop a short distance past the Applicant and when the Applicant approached her vehicle a heated exchange took place between the female driver and the Applicant. The female driver then drove off at higher than the regulated speed and past the last traffic controller.

[11] Separately Mr Sheppard and then the Applicant left the work site and followed the female driver’s vehicle.

[12] The Applicant located the female driver’s vehicle in the parking area at a nearby Woolworths. The Applicant parked his work vehicle so as to prevent the other vehicle leaving. When the female driver returned to her vehicle a heated exchange took place between the female driver and the Applicant. Mr Sheppard then arrived and directed the Applicant to return to the work site whilst Mr Sheppard engaged with the female driver and other persons present.

[13] When Mr Sheppard had not returned to the work site after period of time the Applicant with permission of Mr Bryant left the worksite and returned to the Woolworths car park. An exchange occurred between the Applicant and male friends/companion of the female driver. Mr Sheppard again directed the Applicant to return to the work site. Phone calls were made to the police by both Mr Sheppard and the Applicant at different times during the above sequence of events.

The Dispute

[14] The dispute was described in the application as follows:

“6. On the same day, Downer Group Project Manager Theo Tekmeridis, issued an email to the employer (email attached) requesting specific details of the incident, including the name of the controller involved, and stated:

“The traffic controller involved in the incident is to never work on a Downer site again.”

7. The employer has refused to provide its response to the email from Downer, including whether it specifically named Mr Burke and the basis upon which it did so.

8. The employer subsequently claimed it had investigated the incident. However, the supervisor had provided a very different version of events to what Mr Burke had provided as to what had occurred.

9. The employer failed to consider all the key facts including interview key witnesses and Mr Burke’s side of the story.

10. It is submitted that had the employer done so it would have seen the health and safety risk presented to Mr Burke at the time and that he was justified in taking the actions he did based on his understanding of the instructions from his supervisor.

11. On 20 March 2015 the employer issued Mr Burke with a first and final warning based on its apparent investigation of the incident (warning attached).

12. Consequently, it appears Mr Burke’s reputation has been tarnished and he has been stopped from gaining future work at Downer sites, probably due to the information the employer has provided Downer.

13. The AWU wrote to the employer requesting details of the information provided to Downer and the basis upon which the warning was issued as well as retraction of the warning and ‘ban’ from work on Downer sites (letter attached). The AWU made it clear that the issue of the warning was not warranted or justifiable in the circumstances.

14. The employer refused to provide these details and has maintained its response was correct (employer response attached).

15. Mr Burke considers his employer used him as the scapegoat to appease Downer rather than because he had engaged in any real wrong doing.”

[15] At the hearing of this matter on 13 January 2016 it was conceded by the Union and the Applicant that the first and final warning issued to the Applicant had now expired and as such was no longer on the Applicant’s employment file with the Respondent. The purpose of the hearing, from the Applicant’s perspective, was to have the evidence of events on 19 March 2015 examined by the Commission so that any decision of the Commission could be used by the Union and the Applicant to influence Downer to rescind their ban on the Applicant.

[16] At an earlier stage of this matter the Applicant sought an undertaking from the Respondent that the Respondent would contact the Downer with a view to getting Downer to retract their ban on the Applicant. Mr Dougan, National Human Resources Manager for the Respondent wrote to the AWU on 25 November 2015 promising that the Respondent would use its “best endeavours” to have Downer permit the Applicant to work on Downer sites. However in a later email from Mr Boyd, Chief Operating Officer of the Respondent to
Mr Theo Tekmeridis, Project Manager Downer Group on 7 January 2016, Mr Boyd said, inter alia: “You instructed that this Traffic Controller was never to work on a Downer site again. Fair decision.” In all respects the comments of the Respondent’s COO to Downer endorsing the decision of Downer to ban the Applicant from working on Downer sites confirms the real position adopted by the Respondent and shows that the letter from the Respondent’s National HR Manger to the AWU was meant to be nothing but a sop to the AWU and the Applicant.

[17] It is in this context that Commission has been asked to make findings of fact in relation to what occurred on 19 March 2015. Such findings of fact may then be used by the AWU and the Applicant to influence Downer to review or rescind its decision that the Applicant is no longer permitted to work on Downer sites.

[18] The findings of fact are made after having considered the sworn evidence of the Applicant, Mr Bryant and Mr Rowe and the additional material filed and relied on by both the Applicant and the Respondent. Appropriate weight has been given to sworn and unsworn evidence and to the material filed by the parties in this matter. The incident falls neatly into separate parts: (1) Events at the work site, (2) Events at the Shopping Centre Car Park

Events at the Work Site

[19] All accounts agree that a female driver drove a white 4WD through the work site travelling north along Jones Rd. The female driver drove at a speed in excess of the 40kph speed limit for the work site. The female driver deliberately aimed for and ran over the bollards set up to separate the west lane of Jones Rd where resurfacing work was being undertaken from the east lane of Jones Rd which was used for traffic travelling both north and south on Jones Rd. The female driver drove over a bollard next to Mr Bryant. The female driver having passed Mr Bryant aimed at and ran over other bollards. Mr Bryant alerted the other traffic controllers of the actions of the female driver. As the 4WD vehicle approached the Applicant he held up a STOP sign to attempt to stop the vehicle. The female driver ignored the STOP sign held up by the Applicant and forced him to jump out of the way of her vehicle. The STOP sign held by the Applicant struck the vehicle as the Applicant jumped out of the way of the vehicle. The 4WD vehicle skidded to a stop. The female driver stopped her vehicle past the Applicant and when the Applicant approached the vehicle a heated exchange took place between the female drive and the Applicant. Profanities were used by the female driver.

[20] After the female driver had passed the point where Mr Bryant was, Mr Sheppard then left his position with the permission of Mr Bryant and, using one of the Respondent’s vehicles, drove very fast through the work site and along Jones Rd in pursuit of the female driver driving a white 4WD. Mr Sheppard did not seek permission from any Downer employee to leave the worksite. The sworn evidence of both Mr Bryant and the Applicant is to be preferred over the statements made by Mr Sheppard to the Respondent shortly after the incident occurred.

[21] Once Mr Sheppard had driven past the point where the Applicant was on duty the Applicant also left his position with the consent of Mr Bryant to follow Mr Sheppard in another of the Respondents vehicles. In the case of both they had the specific permission of Mr Bryant, Team Leader for the Respondent to leave the work site to pursue the female driver and the white 4WD. The Applicant returned to the work site about 15 minutes later and reported to Mr Bryant. After about a further 15 minutes both Mr Bryant and the Applicant had become concerned as to the welfare of Mr Sheppard who had been left at the Woolworths car park with the female driver. Mr Bryant agreed that the Applicant should return to the car park to ascertain the wellbeing of Mr Sheppard. The Applicant left the site and travelled to the car park at Woolworths and returned a short time later. The evidence of the Applicant is clear in that he did not seek permission from anyone at Downer before he left the work site on two occasions. The evidence of Mr Bryant and the Applicant makes clear that none of the traffic controllers managed to record the registration number of the 4WD as it passed through the work site. However, a member of the public did record the registration number of the 4WD and provided it to the Applicant.

[22] Paragraphs [19] to [21] above are supported by the specific evidence of Mr Bryant and the Applicant as set out below:

Mr Bryant’s evidence

“17. At approximately 11.00am, Downer was waiting for more asphalt to arrive and had stopped work. The site had also greatly reduced in size due to the amount of asphalt already laid by that stage. Daniel and I were still positioned nearby to one another on Jones Road. I gradually moved along Jones Road along with the Downer workers so as to provide a safe work presence.

18. At around this time, a white coloured four wheel drive travelling north on Jones Road proceeded through the safe work area and knocked over the bollard that I was standing next to and almost struck me. The left side of the vehicle missed me by less than a foot. At the time I had my bat on “slow” towards the oncoming traffic.

19. I got a glimpse of the female driver as she drove through. She had an evil look about her and seemed half asleep. I wear polarised sunglasses so I can see through windscreens and make eye contact with drivers.

20. The driver continued north on Jones Road and repeatedly swerved into bollards. She was slamming into them, which I found strange and deliberate. The driver was obviously angry about our site. Luckily, there were no asphalt works being done on the other side of the road.

21. I was furious with the female driver for what she had done. She nearly ran me over

and was now having fun wrecking the site. She travelled between approximately 40-60 km/h.

22. I called out my disgust about the incident over the radio. I asked Melissa to get the registration details of the vehicle as it passed her position. However, for some reason she wasn’t able to get the registration details.

23. I didn’t hear David over the radio at the time. It happened very quickly. I expect David would have heard Daniel and I trying to alert everyone of the incident and the need to gain registration details.

24. After I heard from Melissa that she had missed the vehicle registration, I then immediately rushed towards my light truck with the intention of driving after the vehicle. I just wanted the registration.

25. Daniel was nearby and tried to stop me saying, “No, don’t you go, I’ll go”. I agreed this was a better idea because I was too angry and shocked after being so close to being hit by the driver.

26. I then heard Daniel say words to the effect “That b...h needs to be taken off the road”.

27. Daniel did not stop to ask any of the Downer workers to relieve him at his position before he drove off. I was with him at the time and had the area under control.

28. Daniel then got in my light truck, rather than his vehicle, and drove after the vehicle.

He drove at speed. He drove with the same intent that I would have had except Daniel is usually more diplomatic.

29. I believe Downer workers observed Daniel as he sped off after the vehicle. I gained the impression from speaking to some of them that they were pleased we had tried to catch the driver’s registration.

30. I don’t recall Daniel ever stopping to pick up the bollards that had been knocked over by the female driver along Jones Road as he rushed through the site. I picked up quite a few and some of the Downer guys picked up some. It is a straight stretch of road. I didn’t see Daniel stop at all. As far as I knew, Daniel kept driving past Melissa’s location and out of site to look for the vehicle.

31. A short time later David radioed me and stated “I am gonna go with Shep.” I replied: “Go for it”.

32. I then heard Daniel communicating on the radio, repeating words to the effect, “That b...h is off her head and needs to be taken off the road!” From this statement I thought Daniel too was very keen to find the driver so she could be reported to the police. And a little while later, it seemed he was trying to coordinate locating the vehicle with someone, I assumed with David. David had another company truck. I heard Daniel say words to the effect “Go that way”.

33. Roughly 15 minutes later, David came to see me at my position. He told me they had found the vehicle and the driver had threatened him when she saw he was parked near her car. He said he never got out of his truck. David told me he left Daniel to talk with the driver. David was very calm and didn’t seem anxious or angry at all. I was the one still shocked and angry about what had happened.

34. We then couldn’t reach Daniel over the two-way radio as it was probably beyond the one kilometre radius of the repeater. He also wasn’t answering his mobile phone. It seemed like 30 minutes or more that Daniel was away.

35. David and I became worried that Daniel may need support. We didn’t know if things had become hostile and he may be in danger. He was gone for quite a while and didn’t answer his phone.

36. I suggested to David that he go back to the car park and check on Daniel. We both agreed Daniel may at the least need a witness to what was happening. David was the only one who knew where Daniel was last seen and I was still too angry with the driver.

37. At a later time, David told me that he had asked for Daniel’s whereabouts in the area where he had last seen him but a guy became angry and threatened him. He said Daniel had indicated he had it under control and asked him to return to site.”

The Applicant’s evidence

“17. At approximately 10:50am a call came through on my radio from Justin Bryant, my Team Leader at the site on the day. When I took the call, I heard a commotion. What I deciphered was Justin telling me to stop a white 4WD travelling towards me. Justin yelled words to the effect:

JB: Stop the white 4WD, it just ran over my bollards!

18. I also heard the voices of Daniel Sheppard and another co-worker on site in the background but they were talking over one another and I couldn’t understand what they were all saying.

19. I spotted the 4WD approaching and held out my stop/slow bat to STOP in its line of path as it was approaching. The car came towards me and accelerated. I prepared myself to jump out of the way and at the last minute jumped left with the stop bat in my right hand.

20. I believe the bat hit the car at which time the driver skidded to a stop. She wound down her window, stuck her head out of it and aggressively yelled “Don't you threaten me.” It appeared to me that the driver was drug or alcohol affected.

21. As I was approaching the vehicle, I learned from Justin over the radio that the driver had aimed the vehicle at him causing him to jump for cover and that she had run over several bollards that we had erected earlier that morning along the centre of Jones Road, before making her way towards me.

22. When I reached the vehicle I reminded the driver that she needed to follow the warning signs and stop when asked. I told her she just hit our bollards. However, she started abusing me.

23. Words to the following effect were exchanged:

DB: I haven't opened my mouth but I'm wondering what you're doing trying to run over me and my guys and running over all our bollards?

Female driver: What do you care? It's not your stuff, it’s Evolution’s DB: The stuff isn't mine but you tried to run me over! Female driver: I don't give a f..k - you have no right to stop my car

DB: [When I realised there was a child in the car] What are you doing?

You've got a kid in the car!

Female driver: Get f….ed!

24. The driver wound up her window and drove off in a northerly direction on Jones Road.

25. I radioed Melissa Blake to see if she had gotten the driver’s registration number so that we could report her to police, but she had failed to do so.

26. However, a moment after speaking to Melissa, a concerned member of the public who was driving behind the 4WD pulled over and asked me if I was ok. She stated she had witnessed everything and had written the vehicles registration number on a piece of paper, and handed this to me.

27. I then tried calling the Frankston Police Station to give the registration details. The time was around 10:54am. I couldn’t get through or leave a message.

28. I then saw Daniel Sheppard, Manager at Evolution, drive in Justin’s light truck through the site and past me heading north at a very high speed. I radioed Daniel and words to the following effect were exchanged:

DB: What’s up Shep?

DS: That b...ch is off her head, and needs to be taken off the road. I'm going to stop her.

29. I knew this meant Daniel was going to try to find the driver. I thought as things had escalated that he would need a witness, so I radioed Justin and explained what had happened.

30. I told Justin I needed to leave the site to check on Daniel and he agreed. I believe Justin was okay for me to leave the site because there was no work going on site at this time as we were waiting for asphalt to arrive.

43. Daniel told me he would wait for the police to arrive and told me to return to site. The man then took photos of mine and Daniel’s vehicles. The man appeared calm. I agreed to leave as it appeared safe to do so. Daniel exited my truck and I then drove off.

44. When I got back to the site I spoke to Justin and explained what had happened and said I may need to go back if the police arrive. Justin as Team Leader agreed. The Downer supervisor praised me for my action.

45. I waited for Daniel to return to site and after about 20 minutes I called him at 11:24am and 11:27am with no reply. As Dan didn’t arrive Justin told me to go and check on him as we were concerned for his safety.

46. When I arrived at the previous location outside of Woolworths I could see Daniel’s vehicle but not Daniel himself. I drove forward looking for him and saw the first male with four other males I hadn’t seen earlier. They saw me and threatened me with statements like:

Unnamed: You like to follow people? We're very good at following people, and you're going to be in a world of shit!

DB: I'm just looking for my friend

47. At that time Daniel appeared at my passenger window and said:

DS: I've got it under control just go back to site

DB: Are you sure you're ok? I don't want to leave you here

48. Daniel reassured me calmly that he was okay and repeated for me to go. As long as Daniel was alright, I felt it was safe to leave him and so I left. I drove around the corner and this time rang 000 at around 11:39am and gave details to questions the operator asked of me. I was concerned to leave Daniel on his own with the 5 other men.”

Events at the Shopping Centre Car Park

[23] The only sworn evidence in relation to the events that took place at the car park near the Woolworths store in Somerville comes from the Applicant. Any conflict between the sworn evidence of the Applicant and the unsworn statements of Mr Sheppard in relation to the events at the shopping centre should be resolved in favor of the Applicant. This approach is consistent with and supported by the Commission’s resolution of the conflict between the sworn evidence of both Mr Bryant and the Applicant and Mr Sheppard as to events at the worksite where the Commission has clearly preferred and accepted the sworn evidence of both Mr Bryant and the Applicant on that matter. Additionally, the Commission also notes that comments attributed to a store owner near where the events at the shopping centre took place are not inconsistent with the Applicant’s sworn evidence.

[24] I consider that the facts identified in the witness statement of the Applicant are true and correct. Rather than try to restate the facts it is sufficient to repeat the detailed evidence of the Applicant. After recounting the circumstances of his leaving the work site and travelling first to the Coles supermarket and then to the Woolworths supermarket the Applicant’s evidence is as follows:

“32. I drove through the Coles car park and couldn't see Daniel or the driver. So I left, and went via the Safeway car park instead and that's where I saw the female driver’s car parked in the car park. The car was empty and Daniel was nowhere in sight.

33. I tried to get through to Daniel on the radio but couldn’t so I rang Daniel on his mobile at around 11:02am and we exchanged words to this effect:

DB: I've found the car next to the post office. What do you want me to do?

DS: Wait there, I’m right behind you, I'll be there in two seconds

34. As Daniel had still not arrived, at 11:03am I called Daniel back and words to the following effect were exchanged:

DB: Where are you, are you coming? Should I go?

DS: Just wait I'm around the corner

35. As I was on the phone to Daniel, the female driver came out from the shops. She appeared to be calm and indifferent. I believe she put her child in the car then approached me in my car and words to the following effect were exchanged:
Female driver: [Aggressively] What are you doing here?

DB: I’m waiting for my boss to get here

36. At this point I told Daniel I had to hang up the phone and did so. The driver continued: Female driver: I don't know what you're thinking but this isn't going to end well for you. You don’t know who you’re messing with. Are you blocking my car in?

DB: No, I'm double parked until the police get here, you ran over those bollards deliberately - that's an offence, it’s a fine of $300 per bollard, you aimed your car to run over two people, you won't have a licence for a year and you shouldn't be driving around with a child in the car.

Female driver: That's none of your fu..king business.

DB: How's that not my business you tried to run me over you crazy c..t

37. I then saw Daniel arrive in his truck, so I drove forward a few feet and said:

DB: I can't be bothered with this shit, you can talk to my boss

38. As I drove out, Daniel stopped his light truck behind the 4WD to block it again, I thought, until the police arrived.

39. At this time a man who I assumed was related to the driver approached my vehicle.

Words to the following effect were then said:

Male [subsequently identified as Travis Robinson]:

What are you doing threatening women and children?

DB: I haven't threatened anyone. Her driving is the reason we tried to stop her. I'm concerned because she is clearly off her head on ice or something. And there is a child in th car…

Male: You better watch who you say that to

40. I recall making it clear to the male that the police had been called and were on their way.

41. The male then went and spoke with the female driver and then approached my vehicle again. The man then told me to move the truck Daniel was in. However, I replied I couldn’t as I was in my own truck.

42. I believe he then approached Daniel and requested the same thing from Daniel, to which Daniel complied by moving his truck behind mine. Daniel then came into the passenger seat of my vehicle.

43. Daniel told me he would wait for the police to arrive and told me to return to site. The man then took photos of mine and Daniel’s vehicles. The man appeared calm. I agreed to leave as it appeared safe to do so. Daniel exited my truck and I then drove off.

44. When I got back to the site I spoke to Justin and explained what had happened and said I may need to go back if the police arrive. Justin as Team Leader agreed. The Downer supervisor praised me for my action.

45. I waited for Daniel to return to site and after about 20 minutes I called him at 11:24am and 11:27am with no reply. As Dan didn’t arrive Justin told me to go and check on him as we were concerned for his safety.

46. When I arrived at the previous location outside of Woolworths I could see Daniel’s vehicle but not Daniel himself. I drove forward looking for him and saw the first male with four other males I hadn’t seen earlier. They saw me and threatened me with statements like:

Unnamed: You like to follow people? We're very good at following people, and you're going to be in a world of shit!

DB: I'm just looking for my friend

47. At that time Daniel appeared at my passenger window and said: DS: I've got it under control just go back to site
DB: Are you sure you're ok? I don't want to leave you here

48. Daniel reassured me calmly that he was okay and repeated for me to go. As long as Daniel was alright, I felt it was safe to leave him and so I left. I drove around the corner and this time rang 000 at around 11:39am and gave details to questions the operator asked of me. I was concerned to leave Daniel on his own with the 5 other men.

49. At around 11:47am I rang Daniel to tell him I had called 000 and the police were on their way but it went to voicemail. Then I returned to site.”

[25] The above facts both in relation to the events at the worksite and at the shopping centre car park deal with issues raised by Downer with the Respondent.

[26] In his email at 2.10pm on 19 March 2015 Mr Theo Tekmeridis, Project Manager, Downer Group wrote to the Respondent in the following terms:

“Subject: Incident- Jones Rd, Somerville

Chris/Daniel,

As you are aware, there was an incident today at Jones Rd in Somerville where a member of the public knocked down a row of bollards on site which led to a traffic controller following that driver, resulting in a confrontation.

The issues are as follows:

• Traffic controller left his post without advising Downer's supervisor.

• Traffic controller acting as a vigilante chasing after a member of the public

Please provide me with the following:

• A copy of your incident report

• Details where all traffic controllers were positioned at the time of the incident.

• Name of the traffic controller involved in the incident. I will then check if he is Downer inducted

• A copy of your SWMS indicating if that traffic controller has signed it.

• A copy of Downer's Authority to Work Permit Indicating if the traffic controller has signed it.

The traffic controller involved in the incident is to never work on a Downer site again.

Regards…”

[27] On 7 January 2016 the following emails were exchanged between the Respondent and Downer

Mr Boyd, Chief Operating Officer for the Respondent sent an email to Mr Tekmeridis, Project Manager at Downer as follows:

“On 7 Jan 2016, at 3:32PM, Andy Boyd wrote

Theo

If possible I need your help.

On 19 March you wrote to Chris Rowe and Daniel Sheppard regarding an incident when one of our Traffic Controllers left site and was involved in an incident. You instructed that this Traffic Controller was never to work on a Downer site again. Fair decision.

The Traffic Controller has taken us to the Fair Work Commission. He is contending that the instruction you gave in the email is referring to Daniel Sheppard.

Are you able to confirm the name of the Traffic Controller that the email was referring to.

Any help much appreciated.
Regards
Andy

Andy Boyd
Chief Operating Officer
Evolution Road Maintenance Group Limited”

[email addresses omitted]

Mr Tekmeridis replied as follows:

“From: Theo Tekmeridis
Sent: Thursday, 7 January 2016 3:45PM
To: Andy Boyd
Cc: Steve Thomas; Brooke Gow
Subject:Re: Emailing- Attachment DB-4 Email from Downer.pdf

Hi Andy,

I don't know the traffic controller's name but it certainly wasn't Daniel Sheppard. Daniel was the one trying to negate the situation. Daniel chased after the traffic controller to bring him back to site, where he had found that this TC had blocked the member of the public in a carpark.

The email is clearly addressed to Chris and Daniel and I requested the name of the traffic controller. From my email, I don't know how Andy is trying to claim otherwise.

Let me know if you require any further information. I am happy to help.

Regards,
Theo Tekmeridis
Project Manager Downer Group”

[email addresses omitted]

[28] It is very apparent from the text of the email from Mr Tekmeridis that his understanding of what happened on 19 March 2015 is very different from what actually happened.

[29] What is very clear from the evidence in this matter is that Mr Sheppard was the traffic controller who left the worksite in pursuit of the white 4WD and that he drove through the worksite at speed.

[30] It is very clear from the evidence in this matter that Mr Sheppard did not chase after the Applicant to bring him back to site. Rather it was the Applicant who chased after Mr Sheppard in order to assist him in relation to the 4WD.

[31] On key issues Mr Tekmeridis and Downer have considered the Applicant to be wholly at fault whereas significant fault lies with the conduct of Mr Sheppard.

[32] Having said that, it is important in the context of this matter that the Commission draw attention to certain important facts.

[33] When the white 4WD drove past Mr Bryant’s location narrowly missing him and then deliberately running over safety bollards Mr Bryant as the Respondent’s site supervisor radioed to the traffic controller at the northern end of the work site to get the registration details of the vehicle. It is also clear from Mr Bryant’s evidence that Mr Sheppard was also using the radio system to alert both the Applicant and the traffic controller at the northern end of the worksite to get the registration details of the white 4WD vehicle.

[34] Apart from the expressive language used by Mr Sheppard when he left the worksite in pursuit of the white 4WD it is accepted that a purpose of Mr Sheppard leaving the worksite in pursuit of the white 4WD was to obtain the registration details of the white 4WD vehicle. The manner of his pursuit by driving at speed through the worksite is a matter of real concern, as is the implied threat in the language used by Mr Sheppard in his comments to both Mr Bryant and the Applicant.

[35] What is very clear from the evidence in this matter is that there was no reason for either Mr Sheppard or the Applicant to leave the worksite in order to obtain the registration number of the white 4WD.

[36] As the Applicant’s evidence makes very clear a member of the public who was driving behind the white 4WD stopped at the Applicant’s location and gave him the registration number of the white 4WD. This occurred before Mr Sheppard drove past the Applicant’s position at the work site.

[37] The evidence of both the Applicant and Mr Bryant is very clear in relation to three very important matters. Firstly, the Applicant did not use his radio to advise all of the traffic controllers, including Mr Bryant (his supervisor) and Mr Sheppard who was about to leave the worksite that he, the Applicant, had the registration number of the white 4WD. Secondly, when the Applicant spoke to Mr Sheppard on the radio after Mr Sheppard drove past the Applicant in pursuit of the white 4WD, the Applicant did not inform Mr Sheppard that he, the Applicant, already had the registration number of the white 4WD. Thirdly, when the Applicant sought permission from Mr Bryant to leave the worksite to assist Mr Sheppard in locating the white 4WD the Applicant did not tell Mr Bryant that he, the Applicant, already knew the registration number of the white 4WD.

[38] If the purpose of pursuing the white 4WD to the shopping centre car park was to get information to assist the police to deal with the driver of the white 4WD then there is no reason why either the Applicant or Mr Sheppard would need to have any interaction with the female driver nor is there any reason why either the Applicant or Mr Sheppard would need to park behind the white 4WD so as to block the white 4WD in a parking space. Even if both the Applicant and Mr Sheppard wanted to identify the female driver that could have occurred without the need for interaction with the female driver and without the need to block her vehicle in a parking space. A simple photo of the female driver, even taken from a distance, would have been sufficient. Modern mobile phones, even of the basic type, generally have inbuilt cameras. Given that both the Applicant and Mr Sheppard had their phones with them the likelihood that neither had a camera in their phone is very remote. The police could have done much with the registration details of the white 4WD and a simple photo of the female driver.

[39] Whilst Mr Tekmeridis and Downer have blamed the wrong traffic controller for some actions on 19 March 2015, the conduct of the Applicant warranted some form of disciplinary action from the Respondent and the warning, which has now expired, was sufficient.

[40] Mr Tekmeridis and Downer should reconsider their position in relation to the Applicant in light of this decision.

COMMISSIONER

Appearances:

L. Aksu for The Australian Workers’ Union.

G. Dougan for the Respondent.

Hearing details:

2016.

Melbourne:

January 13.

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<Price code C, PR576064>