David Perrin v Des Taylor Pty Ltd
[1995] IRCA 114
•24 March 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2421 of 1994
BETWEEN:
JAMIE KLINGENBERG
Applicant
AND
I.R. COOTES PTY LTD
Respondent
REASONS FOR JUDGMENT
24 March 1995 Judicial Registrar Murphy
Introduction
The applicant in these proceedings seeks reinstatement to his position as a LPG tanker driver with the respondent and payment of the loss of remuneration sustained since he was terminated from his employment on 9 November 1994. The evidence in the proceeding consisted of evidence from the applicant and from Mr Ian Lawrie, LPG Manager - Victoria (“Lawrie”) for the respondent. The evidence ranged widely over performance matters and it is most convenient to consider it chronologically. The operations of the respondent are that it transports LPG gas in large articulated tankers during winter and in summer its drivers also transport bitumen.
Performance Issues Prior To Termination
The applicant gave evidence that he commenced employment as a casual driver with the respondent in July 1993. For a couple of months prior to that he had worked as a truck jockey with another driver familiarising himself with the operations of the respondent and he subsequently obtained casual employment. Around that time in order to commence as a casual driver he completed a drivers reference book which was provided to a supervisor of the respondent, Mr Donnegan. He also later signed another employment application form, which was tendered in evidence, and which was completed and witnessed by a supervisor Mr Alan Yates. Yates is now the manager of the Sydney operation of the respondent. In the latter document the applicant was asked whether he had been involved in any previous accidents. He replied “yes” and when asked to give details completed the date “1987”.
The applicant’s casual employment with the respondent was converted to permanent in November 1993.
Lawrie commenced employment with the respondent in June 1994. He said that about three weeks after commencing he had occasion to discuss with the applicant his attitude to employment. The applicant’s evidence was that he had initiated a discussion with his immediate supervisor, Mr Pell (“Pell”), in relation to the allocation of work. The applicant claimed that he had been unfairly treated. Pell offered to take the matter up with Lawrie. The applicant could not recall any discussion with Lawrie at that time. Lawrie’s evidence however was that it was a general discussion at which time the applicant’s attitude was raised, including his relations with other staff members, as well as the issue of how much work he was receiving. It was only a short meeting.
In July 1994 the applicant undertook a trip to Sydney. The applicant’s unchallenged evidence was that the trip was completed on a very tight schedule. After the truck returned to Melbourne the computer print out of the trip revealed that the applicant had been speeding and had failed to log on to computer. The matter was the subject of a discussion between the applicant and Lawrie and Lawrie issued a formal warning in relation to that incident.
In October the applicant gave evidence that there was a discussion between himself and Pell in relation to the time that he took to undertake a trip to Naracoorte. Lawrie’s evidence was however that the discussion was directly with himself and he raised the issue of the time that the applicant took to complete jobs in general. Lawrie’s evidence was that the discussion “was a general discussion, not to be a warning letter or anything like that”. As a result of the applicant’s attitude Lawrie arranged for the applicant to share a truck with the senior driver at the depot, Mr Barrot. Barrot was to be a sort of senior partner to “help [the applicant] lift his game”.
On 1 November 1994 the applicant was driving in Sydney and executed a left hand turn. A female driver of a vehicle stopped his truck and claimed that when the truck had executed the turn it had damaged her left hand front blinker. The applicant observed no debris on the road and no scratches on the truck and formed the conclusion that the “accident” as alleged by the other driver could not have occurred. Despite requests from the other driver he refused to provide his name and address. He claimed that he indicated that the truck signage contained details of ownership. He reported that accident to Yates, the Sydney Manager, and completed an accident form.
The accident form was relayed to Melbourne. Lawrie was concerned because the company’s drivers’ manual had not been complied with. This requires all drivers to exchange names and addresses when accidents occur.
The applicant was contacted by his superior, Pell, and a meeting was arranged at 4:00pm on 3 November, when the applicant returned from his Sydney trip. The applicant returned from the trip at 5:00am on 3 November and at that stage was involved in some difficulties at home. As a result of those difficulties his wife arranged a meeting late that afternoon with a marriage guidance counsellor. As a result of that meeting he failed to attend the meeting scheduled with Lawrie at 4:00pm on that afternoon. He did not contact Lawrie to explain his absence. He said that he didn’t consider it as big as his home life, and it was the last thing in his head at the that stage.
Lawrie’s evidence was that in preparation for that meeting he had prepared a final warning for the applicant in relation to his failure to comply with the company’s drivers manual. He intended to administer it at that meeting. After 3 November and before 8 November, the applicant completed two trips to Sydney and one trip to Horsham.
On 8 November Lawrie, concerned that he had still not arranged to see the applicant to discuss the accident report matter, had him contacted at home around midday after he had returned from a trip to Horsham. A meeting was arranged with the applicant at 4:00pm on 8 November. The applicant gave evidence that he overslept. He had finished his trip to Horsham at 5:00am that morning and was in bed when he received the call about the meeting. He arrived at the depot at 6:10pm.
Events Of Interview On 8 November 1994
The applicant’s version of the interview is that Lawrie proceeded to discuss the Sydney accident with him and to hand him the written warning. The applicant stated that he refused to accept the written warning because the warning was required to be witnessed and the senior driver Barrot was not present. On the applicant’s version Lawrie then commenced to discuss more general issues relating to his performance. The respondent admitted that its discipline policy provides for three written warnings including a final warning before termination. The applicant raised this with Lawrie in the course of that meeting and refused to sign the letter except in the presence of Barrot. The actual letter of warning tendered was not signed by the applicant. This is consistent with his version that he wanted the involvement of his union in the matter. Lawrie’s evidence was that the applicant brushed aside the warning letter. He also failed to explain his failure to attend the meeting on 3 November. He did not mention anything about his family problems.
Lawrie then mentioned to him earlier discussions with Barrot about his attitude, that he was now back to his old habits and was insolent in the situation. Lawrie said that he felt that the applicant did not want to accept that he wasn’t doing his job correctly and Lawrie felt that he wasn’t being concerned with his role as a driver with the respondent. Lawrie then suggested that he had no future with the company and believed that he should terminate him. The applicant then asked him to reconsider this and a further meeting was scheduled for the following morning.
A further meeting did occur on the following morning. Before that Lawrie had spoken to his superiors and determined to confirm his decision to terminate the applicant.
The meeting occurred and the same ground that had been gone over in the previous meeting was discussed. In particular Lawrie raised the question of the time that the applicant was taking to complete jobs. The applicant, on Lawrie’s version, then accused the supervisor Pell of providing wrong information. Pell was then called into the meeting, the meeting at that point degenerated into a slanging match. The applicant abused Lawrie, claimed that everyone was against him and no-one wanted to help him. The applicant was then terminated.
In the letter of termination dated 9 November 1994 the respondent relied on the following matters:
“Following are the incidents which have taken us to this position.
June -Discussion re: inappropriate attitude.
July -Written warning regarding speeding and not logging into the fleetcom.
Oct. -My discussion with you regarding times to do allocated tasks. My discussion with Alan Barrot on same issue.
Nov. -Not giving or acquiring information regarding an alleged accident.
Nov. -Not turning up for a meeting when requested.”
Other Evidence
There was extensive evidence in relation to two other matters. The first of these was whether the applicant had misled the respondent in relation to his driving record at the time he commenced employment. Lawrie gave evidence that the issue of prior accident record is a significant factor in insurance premiums of the company and also for the company’s attitude to its drivers. The company takes a very serious view of its responsibilities in a highly regulated industry and he would have found great difficulty being involved with someone who had rolled a truck. The applicant gave evidence that he had been involved in two accidents. In 1987 a vehicle strayed onto his side of the road resulting in a head on collision. The other driver was charged with negligent driving.
In 1989 he rolled a truck. He gave evidence that when Yates completed the employment application form Yates told him that the company was only interested in accidents less than five years ago. He and Yates had had a discussion about the two accidents that the applicant was involved in and tried to work out the dates that they occurred. It was then that the 1987 accident was referred to in the employment application form. The applicant also claimed that the previous supervisor of the respondent, Donnegan, also knew about the 1989 roll-over. The applicant said that he was unsure of the actual date of the two accidents and for that reason had not referred to the 1989 accident in his application form. The respondent did not call Yates, who remains employed with it. No explanation for the failure to call Yates was advanced.
The second issue was whether the applicant had made an excessive claim for the trip to Horsham which he completed on 8 November. The applicant claimed a total of 24 hours for the trip. He gave evidence that he arrived at the depot at 9:00pm on Sunday 6 November. His truck would not start and he had to contact a mechanic who attended and started the truck. The computer trip meter indicates that the truck commenced idling at 22:03 hours on that date. At 22:35 it travelled 14kms. He gave evidence that he drove the truck from Seaford to Dandenong for loading. He claimed four hours for the trip from Seaford to Dandenong. The applicant gave evidence that he was in a queue for sometime and took about an hour and a half to load. After the loading the truck would not start again. The mechanic was again called and another truck had to be brought from Seaford to tow it off the weigh‑bridge. At that point a flat tyre was discovered and the tyre had to be changed by a tyre mechanic.
The trip from Dandenong to Horsham including loading and unloading in the evidence of the applicant takes around sixteen hours for the return journey. This is the time that he said that drivers in the yard claim for that journey, being a bench-mark time. Lawrie gave evidence that the trip was about fourteen hours but the applicant’s evidence on this point was not challenged. The applicant stated that he had to keep the truck idling while he was on the trip for fear that it would not restart. He said that he did not have a break for the entire 24 hours. He also said that he had to divert to Footscray for some warranty work on the truck on the evening of 7 November. The record shows that he had stop period of 1.46 hours commencing at 7:11pm on 7 November. The meter reveals that the overall journey ceased back at the depot at 22:23pm on 7 November. The applicant gave evidence that he arrived home that day at 5:00am after washing his truck after he attended at the depot. He had been away from home for approximately thirty hours. He claimed 20 hours for the Dandenong - Horsham trip, making a total claim of 24 hours.
The system of payment for the respondent is that drivers are only paid for the period that they are driving and for loading and unloading the truck. They are not paid for rest breaks. Lawrie gave evidence that the claim for 24 hours was therefore excessive and that at most the applicant would be entitled to claim 14 hours for the trip to Horsham and back plus the time spent attending to repairs and loading and unloading. Lawrie denied that there was any practice of “bench-mark” times and that drivers were paid for actual times only.
In cross examination the applicant admitted that on his own figures he had made an excess claim of 1½ hours. He did state however that he had not had a proper break for 24 hours over that period because of the need to keep the truck idling at all times. The applicant’s records of payment are based on a claim form prepared by the applicant. That claim form recorded the fact that the truck would not start and had to be towed off the weigh‑bridge and the flat tyre changed. The trip meter extract is dated at 1:15pm on 8 November 1994. The alleged excessive payment only came to light, according to Lawrie’s evidence, after he had been terminated from his employment.
Findings On The Evidence
There is no real dispute between the parties on a number of issues within this case and thus it is unnecessary for me to make findings in relation to some matters. The applicant was the subject of sustained cross examination as to his credit. I am satisfied that he was a truthful witness attempting to recall events as best he could. He was a difficult historian who admitted that he was not good on dates. I accept that he did not deliberately attempt to mislead the Court. I accept the evidence of Lawrie who impressed as a witness with a genuine concern for the interests of the respondent and for its responsibilities to ensure the safety of its operations.
It follows that I find that there was a discussion between Lawrie and the applicant in June 1990 regarding his inappropriate attitude. Lawrie himself admitted that at that stage he was only getting to know the drivers and the applicant had indicated that Lawrie had only been employed there a short time. Lawrie also said that it was a general discussion. He did not suggest that it was any form of counselling session.
I also find that Lawrie had a discussion with the applicant in October in relation to the times to do allocated tasks. The applicant admitted that the discussion related to a particular journey while Lawrie claimed that it was of a more general nature. I accept the respondent’s version of this. On either view it did not descend to any form of formal counselling.
In relation to the interview on 8 November I accept Lawrie’s evidence that the interview commenced with him attempting to administer a final warning in relation to the Sydney accident. I accept the applicant’s evidence however that he then raised the issue of the discipline procedure and in particular that he wanted to have Barrot present at that meeting.
I find that subsequent to that Lawrie formed the view that the applicant’s attitude left a lot to be desired and he determined to terminate his employment. Lawrie was however prepared to reconsider the matter and the further meeting was then undertaken on 9 November. At the meeting on 9 November the applicant sought to get his job back but Lawrie on his own evidence had decided to terminate him. I accept Lawrie’s evidence that the applicant became abusive. I am not prepared to accept the evidence of Lawrie that the applicant criticised his superior Pell. The respondent failed to call Pell and no satisfactory explanation was given as to that.
I am unable to find that the applicant sought to mislead the company in relation to his driving record. The applicant’s evidence was that two supervisors in the company, Yates and Donnegan, knew that he had been involved in a “roll‑over”. The employment application form is in Yates’ handwriting and it has clearly not been fully completed. The form requires details to be given of the accident and also requires detailed comments in relation to an applicant for employment. Neither of these have been completed. This leads me to the conclusion that Yates was prepared to waive any strict compliance with the respondent’s procedures in order to assist the applicant obtain employment. I draw an inference against the respondent for its failure to call Yates to contradict the applicant’s evidence in relation to the respondent’s knowledge of the circumstances of the roll‑over of the truck.
I am also not prepared to accept that the applicant made a fraudulently inflated claim for his time on the trip to Horsham which ended on 8 November. The applicant’s unchallenged evidence was that he went for 24 hours without a break and he commenced at the depot at 9:00pm on 6 November. While he conceded in cross examination that the claim had been excessive, I am prepared to accept that were the matter the subject of a full investigation the applicant’s version of the claim would be seen as reasonably based. The basis on which the applicant came to his claim for the hours worked was, in the Court’s view, reasonable. On this basis I certainly am not prepared to find that the applicant’s claim constituted an attempt to defraud the respondent such as to entitle it to summarily terminate him.
Did The Respondent Comply with Section 170DC Of The Act?
The requirements of procedural fairness imported into the employment relationship by section 170DC of the Industrial Relations Act 1988 (“the Act”) have been discussed in cases such as Byrne v Australian National Airlines Limited (1994) 52 IR 10 and Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233. The requirements are flexible but are not to be taken for granted. In particular, as Wilcox CJ said in Nicolson at 243, the provision requires an employee to be given an adequate opportunity to respond to any allegations and to put a case in response to allegations which place his or her job at risk.
In this case the respondent conceded that the discipline procedure of the respondent contained a requirement that an employee be given three warnings. In the applicant’s case there is no dispute that he was given a first warning in July 1994. Lawrie was proceeding to administer a final warning at the meeting of 8 November 1994. As a result of the applicant’s response to that final warning Lawrie then proceeded to raise a range of matters which I have discussed above in relation to his performance and attitude. Lawrie proceeded to terminate him on the basis of those matters. The matters included the matter the subject of the proposed final warning, namely the Sydney incident. The matters also included the failure to attend the meeting on 3 November and, on Lawrie’s own evidence, the applicant’s attitude to the warning. The applicant’s evidence that he required the presence of the senior driver Barrot at the meeting was not challenged in cross examination and I accept that is what the applicant sought. His evidence on this point is not surprising given the previous warning and his involvement with Barrot.
Lawrie’s action in proceeding to terminate the applicant on the basis of his response to the final warning was unfair to the applicant because it failed to meet the requirement of Wilcox CJ in Nicolson which is that the employee be given “an adequate opportunity to make a case” (emphasis added). Here there was no urgency in this matter and no reason was given as to why Lawrie could not have adjourned the meeting to a later time. It is difficult for an employee to adequately respond to a wider set of allegations in a meeting called to administer a warning on a single incident. There is also an element of unfairness in the decision to terminate the applicant on the basis of matters that had occurred in the past. Only one of the five matters relied on had been the subject of a previous warning and the Sydney incident was the subject of the warning dated 8 November. At no time was the applicant informed that his failure to make the meeting on 3 November was such as to put his employment at risk. On the contrary the evidence was that the applicant did three trips for the respondent after that meeting. All trucks were equipped with a mobile phone. Lawrie thus had adequate opportunity to contact the applicant prior to 8 November in order to raise with him his concerns about the failure to attend the meeting on 3 November. The failure of the applicant to attend that meeting on 3 November could not on any objective view justify the termination of his employment.
At all events the applicant was entitled to have an adequate opportunity to put his response to the issue of his attitude which was the basic reason for the termination.
The respondent sought to argue that it had complied with section 170DC because in the circumstances here it was not reasonable, within the meaning of section 170DC(b), for the respondent to put these allegations to the applicant. The grounds for this were the nature of the respondent’s business, its duty to the community by virtue of the hazardous nature of the goods transported and the need to ensure adequate driver standards. The difficulty with this line of argument is that the respondent was happy to have the applicant do three trips for it after the Sydney incident. Further, the Sydney incident, and the earlier warning on speeding, were the only matters that went directly to the applicant’s driving ability. It follows from this that there was no reason why the operational requirements of the respondent prevented it from according the applicant his rights under section 170DC of the Act.
For these reasons I conclude that the respondent has breached section 170DC of the Act and it is now necessary for me to turn to the issue of remedy.
Remedy
In a recent decision of the Full Court, Liddell v Lembke, (1994) 127 ALR 342 at 359 when Wilcox CJ and Keely J were considering the provisions of section 170DC they said this:
“A similar situation applies in relation to a termination in contravention of section 170DC, the procedural fairness provision of the Commonwealth Act. The effect of that section is that the dismissal of an employee in circumstances of procedural fairness is unlawful. If procedural unfairness is established, the employee may be reinstated, unless this is impracticable; and, if it is impracticable, may receive compensation instead. This is so even if the employee was guilty of conduct that would have entitled the employer, adopting proper procedures, to terminate the employment under section 170DE.”
So the effect of this decision is that where there is a breach of section 170DC of the Act, then the employee is entitled to a remedy under section 170EE. This is confirmed at 359-60 where the majority said:
“Because of these considerations, and the fact that the Commonwealth Act makes a termination in violation of the requirements of section 170DC unlawful in itself, whatever the employees merits or lack of them, it would not be right to withhold a remedy for a breach of section 170DC because of considerations listed in section 170DE(1). They are factors that permit an employer acting fairly to terminate an employee's employment.” (emphasis in original)
The respondent argued that in the event that the Court found any breach of the Act the matters relating to the applicants driving record and the claim for the trip to Horsham must be taken into consideration in determining whether any remedy should be granted to the applicant.
In this matter I have already found that the respondent was aware of the applicant’s driving record at the time of the termination and therefore find that the respondent cannot now rely on that matter in order to deny the applicant any remedy.
I have also found that the applicant had not falsely made an excessive claim in relation to the Horsham trip. On the basis of the evidence before it the Court could not be satisfied that the claim of the applicant was excessive in the circumstances. I am therefore not satisfied that this constitutes conduct which would disqualify him from the primary remedy under the Act.
The case of Liddell (above) indicates that the discretion conferred in section 170EE is a confined discretion and a respondent has a heavy onus to prove that re-employment is impracticable. At 368 of his reasons in that decision, Gray J said that:
“Reinstatement is therefore required if it can be done. If the employer is still employing or able to employ someone to perform the same or similar tasks, then reinstatement will be practicable. Its practicability does not depend on notions of loss of confidence in the employee. Nor does it depend on the existence of grounds which would have justified termination but which were not relied on, because unknown to the employer at the time of the termination.”
Nothing that the respondent has put in its evidence or submissions would indicate that it is impracticable to reinstate the applicant to his position. While Lawrie may have some reservations about employing a driver that had been involved in a roll‑over, it is clear that at the time the applicant commenced employment Yates had no such reservations. I have earlier rejected the other two bases relied on by the respondent. There is nothing in Liddell (above) which would suggest that I am bound by the authorities to refuse the order sought by the applicant. For these reasons then I propose to order that the respondent re-employ the applicant.
The applicant also sought his loss of remuneration as a result of the unlawful termination. He gave evidence that he had earned a total of $3,946.00 in casual employment and that he had made no claim for unemployment benefits. The evidence was that in the twelve months to November 1994 he had earned a total of $75,475.70. This is a monthly average of $6,290.00. The applicant also pointed to the fact that he was entitled to 5% employer’s superannuation contributions. I have calculated his gross loss of remuneration at $28,305.00. The basis of that is the period from the date of termination to date is 4½ months. I have deducted his earnings in the sum of $3,946.00 leaving a net loss of $24,359.00. I propose to make an order for that loss of remuneration and also to order that he be treated for all purposes as being in continuous employment, including his employer superannuation contributions.
The respondent argued that the applicant had failed to mitigate his loss by not applying for unemployment benefit. The applicant claimed that he made partially successful attempts to obtain casual driving employment and did not wish to resort to government provided benefit. I am not persuaded that his actions were unreasonable and do not propose to make any adjustment to the loss of remuneration claimed.
Order Of The Court
That the respondent re-employ the applicant in his former position as a LPG tanker driver.
That the respondent pay to the applicant loss of remuneration in the sum of $24,359.00 within 14 days.
That the period from 9 November 1994 to date be treated for all purposes, including employer superannuation contributions, as continuous employment.
I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.
Associate:
Dated: 24 March 1995
Representative for the Applicant:
Mr Morrie Lester of the Transport Workers Union
Solicitor for the Respondent:
Counsel for the Respondent:Minter Ellison
Mr M. McDonaldDate of hearing:
6 March 1995
Date of Judgment:
24 March 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - previous written warnings - non compliance with discipline procedure - whether applicant accorded procedural fairness - reinstatement - relevance of information acquired after termination to exercise of discretion - finding that some information was already known to respondent - material insufficient to refuse order for reinstatement.
Industrial Relations Act 1988, ss.170DC, 170DE and 170EE.
Byrne v Australian National Airlines Limited (1994) 52 IR 10
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233
Liddell v Lembke, (1994) 127 ALR 342
JAMIE KLINGENBERG -v- I.R. COOTES PTY LTD
NO. VI 2421 of 1994
Before: MURPHY JR
Place: MELBOURNE
Date: 24 MARCH 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2421 of 1994
BETWEEN:
JAMIE KLINGENBERG
Applicant
AND
I.R. COOTES PTY LTD
Respondent
MINUTES OF ORDER
24 March 1995 Judicial Registrar Murphy
THE COURT ORDERS THAT:
That the respondent re-employ the applicant in his former position as a LPG tanker driver.
That the respondent pay to the applicant loss of remuneration in the sum of $24,359.00 within 14 days.
That the period from 9 November 1994 to date be treated for all purposes, including employer superannuation contributions, as continuous employment.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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