Donald Bamford v Qube Logistics (Wa1) Pty Ltd T/A Qube Logistics

[2015] FWC 7563

[2015] FWC 7563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donald Bamford
v
Qube Logistics (WA1) Pty Ltd T/A Qube Logistics
(U2014/16650)

COMMISSIONER WILLIAMS PERTH, 5 NOVEMBER 2015

Termination of employment.

[1] This matter involves an application made by Mr Donald Bamford (Mr Bamford or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Qube Logistics (WA1) Pty Ltd T/A Qube Logistics (Qube or the respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.

[3] Mr Bamford was employed as a Truck Driver with Qube. On Friday, 5 December 2014 he was involved in a collision with another truck. Following an investigation by Qube the company concluded that Mr Bamford was responsible for the accident and consequently his employment was terminated.

[4] At the hearing of this matter Mr Bamford was represented by the Transport Workers’ Union of Australia (the TWU). Mr Bamford gave evidence as did Mr Steve Perkusich (Mr Perkusich), an Organiser with the TWU. The respondent was represented by Mr Coulton, the respondent’s National IR & BD Manager who called the following witnesses, Mr Sarveet Singh (Mr Singh) the Driver of the other truck involved in the collision who was also employed by Qube, Mr Adrian Raddock (Mr Raddock) another employee of Qube, Mr Matthew Natale (Mr Natale) a Qube Truck Driver, Mr Kelly Heke (Mr Heke) a Qube Fleet Controller and Mr Stephen Bray (Mr Bray) Qube’s Western Australia Operations and Business Manager.

Factual findings

[5] Having considered the witness evidence I make the following factual findings.

[6] Mr Bamford is 67 years old and was first employed by Qube in May 2012. Mr Bamford was dismissed on 15 December 2014.

[7] Mr Bamford has been a professional Truck Driver for most of his working life.

[8] Mr Bamford has had a number of incidents recorded against him over the course of his employment whilst operating Qube’s vehicles. These are:

1. 29 August 2012 he struck a letterbox which was obstructed by a tree whilst trying to reverse on a narrow road.

2. 15 October 2012 broken lines on Mr Bamford’s truck spilt fuel at a customer’s premises.

3. 24 January 2013 he hit two kangaroos on Brockton Highway causing minor damage to the truck.

4. 2 May 2013 a twist lock had not been undone correctly and was torn off when a container was lifted from his truck.

5. 3 October 2013 a container swung and hit the tire rim of Mr Bamford’s truck.

6. 1 November 2013 an employee at a customer’s premises opened the doors on Mr Bamford’s truck but did not secure them and the doors hit the loading dock.

7. 15 July 2014 he reversed the trailer into a parked truck whilst using a spotter who was on the wrong side.

8. 2 August 2014 he hit a gate whilst reversing out of a customer’s premises.

9. 12 August 2014 he hit the barrier on the side of a freeway exit ramp causing extensive damage to the trailer which was no longer roadworthy.

[9] On the evidence I accept that a number of these incidents were not Mr Bamford’s fault but others were his fault.

[10] On 5 December 2014 at approximately 23:00 hours Mr Bamford was involved in a collision with another Qube truck driven by Mr Singh. Mr Bamford’s truck was towing an unloaded container side loader trailer whilst Mr Singh’s truck was a prime mover towing two loaded trailers.

[11] The collision occurred at the intersection of Port Beach Road and Tydeman Road Fremantle.

[12] This intersection is controlled by traffic lights. At this intersection the northbound lanes of Port Beach Road are made up of three lanes. The left lane continues straight northbound along Port Beach Road. The middle lane allows vehicles to either continue northbound along Port Beach Road or turn right into Tydeman Road. The right lane only allows vehicles to turn right into Tydeman Road.

[13] Both trucks had been travelling in a northerly direction on Port Beach Road until they were stopped by the traffic lights. Mr Bamford and Mr Singh’s trucks were stopped side by side at the lights.

[14] Both trucks were waiting to turn right from Port Beach Road into Tydeman Road. Mr Bamford was in the middle lane and Mr Singh was in the right lane.

[15] When the light turned green both vehicles moved forward and proceeded to turn right. Part way through the turn the vehicles collided with the passenger side door of Mr Singh’s truck making contact with the middle section of the trailer behind Mr Bamford’s truck.

[16] Both Drivers brought their vehicles to a stop as soon as they were aware they had collided. The vehicles were stopped such that they were blocking the intersection.

[17] Mr Bamford and Mr Singh had some words with each other after they alighted from their vehicles.

[18] Mr Singh rang Mr Heke who was the Fleet Controller on night shift and his evidence was that Mr Singh told him that Mr Bamford had crashed into the left-hand side of Mr Singh’s vehicle while they were turning right at the Port Beach and Tydeman Road intersection.

[19] Mr Heke gave Mr Singh some instructions about securing the vehicle and cordoning off the accident site. He then rang Mr Raddock and requested that he go to the scene of the collision, assess the situation and take photos before the vehicles were moved.

[20] Later that night both Drivers returned to the depot and spoke to Mr Heke. Mr Bamford was told by Mr Heke that he should complete an incident report but he did not do this. Mr Bamford did not complete his incident report until the following day. Mr Singh filled out his incident report that night.

[21] Both Drivers took photographs of the collision scene. Both Drivers gave evidence as to their views of what these photos demonstrated as did a number of the other witnesses. However in my view the evidence witnesses gave based on these particular photographs is inconclusive. The photos showed some of the damage to the vehicles and where the vehicles had been stopped by their respective Drivers. The photos had been taken at night and were generally of poor quality. The photographs are also incomplete in that they did not show the scene from all the angles necessary to be notionally useful in providing insight into where the vehicles were when they collided.

[22] Mr Bamford’s evidence was that he had commenced the right-hand turn paying careful attention to leave enough room for his trailer to swing around the apex of the corner on a proper line and that his vehicle remained within his lane. His evidence was that it was Mr Singh who had taken the turn to widely and his vehicle had crossed over into Mr Bamford’s lane and so Mr Singh was fully responsible for the collision.

[23] His evidence was that the line markings on the intersection had faded considerably and were barely visible on the night.

[24] Mr Singh’s evidence was that Mr Bamford did not take a wide enough turn and as a result he crossed over into Mr Singh’s lane. Mr Singh’s evidence was that he had maintained a proper line throughout the turn and his vehicle had remained within his lane.

[25] Mr Perkusich gave evidence that he was a professional Truck Driver and had been for over 30 years. There is no doubt as to his experience operating all classes of vehicles in the transport industry. He had previously been involved in an internal investigation and disciplinary proceedings involving Mr Bamford and Qube. This was in respect to the incident on 12 August 2014 when Mr Bamford had hit the left hand side barrier on a freeway exit ramp. His evidence was that Mr Bamford’s explanation for him striking the barrier on the side of the freeway was that he had been looking at a mobile data unit which was lying next to the driver’s seat. His view was that it was the respondent’s fault in part in that the data unit should have been properly fixed to the vehicle’s dashboard. The respondent’s failure to do so he believed had encouraged an unsafe driving practice by Mr Bamford and that he had to take his eyes off the road momentarily to operate the data unit.

[26] Mr Perkusich was involved in the disciplinary meeting held on 11 December 2014 concerning the collision on 5 December 2014. At that meeting he viewed a number of photographs provided by the respondent and in his assessment contrary to Qube’s view these demonstrated that Mr Bamford was not at fault in any way for the collision.

[27] His evidence was that the intersection is considered somewhat notorious by transport workers who regularly make this turn side-by-side with another truck. His evidence was that the line markings require constant attention and become faded and unrecognisable within a few months due to heavy traffic at the intersection.

[28] His evidence at the hearing was that he believes based on the photographs of where the vehicles were stopped that it was Mr Singh who took the turn incorrectly and did not maintain a proper line and strayed outside of his lane towards the left into Mr Bamford’s lane and so it was Mr Singh who was responsible for the collision. In his evidence he conceded that where Mr Singh’s vehicle was stopped it appears to look as if it is in the correct position within the right-hand lane. His evidence was that he believed Mr Singh may have not stopped his truck as quickly as he could have after become aware the vehicles had collided and that this allowed him to improve the position of his vehicle and effectively move it back so that it stopped within the right-hand lane creating the appearance that he had correctly stayed within his lane when he had not. Simply put Mr Perkusich’s evidence was that based on the photographic evidence he had seen he believed the collision was Mr Singh’s fault not Mr Bamford’s.

[29] Mr Natale’s evidence is that he drives a road train of the same type that Mr Singh was driving on the night in question. He had finished his work for that night and was driving in a northerly direction on Port Beach Road approaching Tydeman Road at approximately 23:00 hours. His evidence is that as he approached the traffic lights at the intersection he saw the two trucks beginning to turn right into Tydeman Road. He observed Mr Bamford’s truck start moving ahead of Mr Singh’s truck and observed Mr Bamford’s truck start to make a course towards the right lane where Mr Singh’s truck was positioned and then observed Mr Bamford’s truck cross over to the right-hand side of the white line that is the demarcation between the two turning lanes. As a result of Mr Bamford’s truck crossing over into Mr Singh’s lane he observed Mr Bamford’s truck collide with Mr Singh’s truck. He saw both Drivers stop their vehicles. He then stopped his car in the adjacent car park and got out to ensure both Drivers were okay. He tried to calm them down and remained there until Mr Raddock arrived to take photos and inspect the crash.

[30] Under cross-examination his evidence was that he had taken the corner himself many times and that there is plenty of lighting there. In terms of there being a white dotted demarcation line separating the middle lane and the right lane showing the correct line to take through the right-hand turn Mr Natale believes it was visible on the night but agrees that it cannot be seen in the photographs put to him under cross examination. His evidence was that if there were no lines there he would still know what the correct line to take was. He did not resile from his evidence that it was Mr Bamford’s truck that had moved to the right crossing into the lane Mr Singh’s truck was in.

[31] Mr Raddock’s evidence was that he is an experienced Accident Assessor having attended no less than 120 vehicle crashes. He attended the scene of the collision at the request of Mr Heke and took photographs.

[32] At the scene he noted that the collision had caused catastrophic damage to the cab of Mr Singh’s road train. His evidence was that it is difficult to determine where the vehicles actually were at the point of impact. He observed that Mr Singh’s road train was stopped near the impact point in the right-hand side of the turning lane.

[33] From his observations that night he assessed that the turn engaged in by Mr Singh’s road train in the right-hand lane appeared to be correct for the intersection. This assessment was based on his observations that:

• The right-hand side of Mr Singh’s road train was approximately 6 feet from the left-hand side island curb in the middle of Tydeman Road.



• That the left side of Mr Singh’s prime mover was approximately 2 feet inside the marked centreline acting as a demarcation between the left and right turning lanes.



• That the rear right-hand side of the rear trailer of Mr Singh’s road train was still directly adjacent to the left-hand side island curb in the middle of Port Beach Road and the rear wheels of the rear trailer were only approximately 6 inches from this curb.

[34] Mr Raddock did not accept the proposition under cross-examination that Mr Singh’s road train had travelled more distance than it should have before stopping after the collision. 1

[35] He was not able to determine where Mr Bamford’s truck was at the point of collision because it had been moved by the time he arrived. His statement refers to the marked centre demarcation line between the left and right turning lanes.

[36] His evidence was that the particular intersection was upgraded a few years ago because of the volume of heavy vehicles negotiating that corner. Approximately 2000 trucks turn that corner every day. His evidence was that the intersection was adjusted so that two road trains could turn safely in both lanes at the same time.

[37] His evidence indicates that the demarcation lines between the two turning lines were visible on the night of the accident and is consistent with Mr Natale’s evidence. I find on balance that the white dotted lane demarcation lines where visible on the road on the night of the collision.

[38] The evidence is that the route taken on the night of the accident was one that Mr Bamford regularly took as part of his employment with Qube.

[39] As I have indicated in my findings the photos provided to the Commission as part of the evidence in this matter do not allow the Commission to independently come to any conclusion as to whether Mr Bamford or Mr Singh was at fault with respect to this collision.

[40] Summarising the evidence as to who was at fault, Mr Bamford and Mr Singh are each adamant that the other incorrectly executed the right turn and so was at fault.

[41] Mr Natale saw the two trucks turn right and saw Mr Bamford’s truck cross into Mr Singh’s lane meaning Mr Bamford was at fault.

[42] Then there is what might be called the expert opinions of Mr Perkusich and Mr Raddock.

[43] Mr Perkusich having viewed photographs of the scene is of the opinion that Mr Singh did not execute the right hand turn correctly and drifted to the left into Mr Bamford’s lane and so was at fault. He concluded Mr Singh was at fault.

[44] Mr Raddock’s assessment having attended the scene of the collision is that Mr Singh properly executed the right-hand turn. This leads to the conclusion that Mr Bamford was at fault.

[45] Because of Mr Raddock’s specific expertise in accident assessment and that he had the advantage of attending the scene of the collision I prefer his evidence over Mr Perkusich’s.

[46] The weight of evidence above supports a finding that it was Mr Bamford who moved his truck to the right into Mr Singh’s lane as they turned right from Port Beach Road into Tydeman Road and so caused the collision. I am satisfied then on the basis of the evidence that the collision was the fault of Mr Bamford.

[47] Mr Bray, Qube’s Operations and Business Manager, met with Mr Bamford on the afternoon of Monday, 8 December 2014 as part of the investigations into the accident. Prior to this he spoke to Mr Raddock who explained his view as to what he believed had occurred.

[48] Mr Bray’s evidence was that during that interview Mr Bamford’s explanations were vague and unclear. Mr Bray elected to suspend Mr Bamford from driving on full pay whilst further investigations were carried out.

[49] The same afternoon Mr Bray interviewed Mr Singh who gave his explanation of what had occurred. Mr Bray directed Mr Singh to return to work.

[50] Having considered the evidence, Mr Bray invited Mr Bamford to a disciplinary meeting on Thursday, 11 December 2014. Mr Bamford attended accompanied by Mr Perkusich. At the meeting it was put to Mr Bamford that he was at fault and so responsible for the accident. Mr Bamford did not accept this and he and Mr Perkusich put arguments to Mr Bray as to why the respondent should not conclude it was Mr Bamford’s fault. During these discussions Mr Bamford mentioned that he believed there was another Driver who had been a witness to the accident on the night it occurred.

[51] Until then Mr Bray had not been aware of this other witness. Consequently during a break in the meeting he made some inquiries and concluded that this potential witness was likely to have been Mr Natale. Mr Bray then rang Mr Natale and spoke to him. Mr Natale told Mr Bray he witnessed Mr Bamford veer into Mr Singh’s lane. 2 This was put to Mr Bamford when the meeting resumed but he maintained it was not his fault. The meeting ended and Mr Bamford was advised that Qube would consider what action it would take in the circumstances.

[52] The next day Mr Bamford accompanied by Mr Perkusich attended another meeting with Mr Bray and was advised his employment was terminated on the basis that the company believed he had been at fault and caused the collision of the two trucks.

[53] Mr Bray’s evidence was that in coming to the conclusion that Mr Bamford should be dismissed he considered the fact that all the evidence indicated in his opinion that Mr Bamford was at fault for the accident but also that he had received prior warnings and had a history of accidents.

[54] Qube have an alcohol and other drugs policy. That policy provides in part that:

“For cause testing: Testing is to be conducted when an employee:

i. has been involved in an accident or incident;...”

[55] This statement in the company’s policy indicates that testing of employees involved in accidents is mandatory. On this occasion however neither Mr Bamford nor Mr Singh were required by Qube to undergo an alcohol or drug test on the night of the accident nor any time thereafter.

[56] Considering that policy the evidence is clear that Mr Heke as the respondent’s Fleet Controller should have directed both employees to undergo an alcohol or drug test on the night of the accident. His evidence however was that he believed that this was not a mandatory requirement. Under cross-examination when it was put to him that the company’s policy required testing in instances of an accident his evidence was that he believed both parties on this occasion were not affected by drug or alcohol and he took it upon himself to determine that testing was not necessary. The evidence is that this was the first time an accident had occurred whilst Mr Heke was in charge as the Fleet Controller. 3

[57] Mr Heke presented as an open and honest witness and I accept his failure to require Mr Bamford and Mr Singh to undertake a drug and alcohol test was because of his misunderstanding of the requirements of the respondent’s policy.

[58] There is no evidence to suggest that either Mr Bamford or Mr Singh were affected by drugs or alcohol on the night of the accident.

Submissions

[59] For Mr Bamford it is submitted that he is an experienced Driver who was dismissed from his employment of 2½ years for reasons of negligently causing a vehicle accident that resulted in damage to the vehicles owned by the respondent but that he disputes this was his fault or he was in any way negligent. For Mr Bamford it is submitted that it was Mr Singh who was at fault but he was unfairly not subject to any disciplinary procedures.

[60] It is submitted that the respondent failed to adhere to its own drug and alcohol policy in not ensuring that Mr Bamford and Mr Singh were tested for drug and alcohol following the accident.

[61] It is submitted that the respondent was uninterested in the expert opinion of Mr Perkusich a highly experienced transport worker who supported Mr Bamford’s assertion that he was not at fault.

[62] It is submitted that the demarcation lines painted on the road between the two turning lanes were not visible on the night in question and this may have contributed to the accident.

[63] It was submitted that a person with a reasonable understanding of how large trucks are operated and behaved while navigating corners would determine that Mr Bamford took a suitable approach to the corner. It was submitted that photographs show that Mr Bamford had come to virtually an immediate stop once contact had been made between the vehicles. It is asserted that Mr Singh however continued forward some 5 to 10 m before stopping and so attempted to correct the direction of travel by steering away from the centre of the road, towards the inside of the corner median strip on Tydeman Road. In this way it is submitted Mr Singh’s truck appeared to be in a more correct position when stopped than it had been at the point the impact occurred.

[64] It was submitted that it was Mr Singh’s failings that was the root cause of this accident and that he clearly misjudged his approach to this corner causing the collision.

[65] Mr Bamford was not at fault for this accident and so there was not a valid reason to terminate his employment. Further is submitted the respondent’s failure to adhere to its policies and procedures and conduct an unbiased investigation rendered the decision to dismiss harsh, unjust and unreasonable.

Consideration

[66] Section 387 of the Act sets out the criteria for the Commission when considering whether or not an employee’s dismissal was harsh, unjust or unreasonable. Section 387 is set out below:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

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

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Valid reason

[67] On Friday, 5 December 2014 Mr Bamford whilst driving his employer’s truck was involved in a collision with another truck also owned by his employer. Considerable damage was caused to the vehicles. The weight of evidence is that Mr Bamford, while making a right-hand turn moved his truck outside the boundaries of his lane and partially crossed into the lane of the adjacent truck as they both turned and so caused the two trucks to collide. I am satisfied on the basis of the evidence that the collision was the fault of Mr Bamford.

[68] Mr Bamford’s action in causing the collision of the two trucks was a valid reason for dismissal.

Notification of that reason

[69] Before Mr Bamford was dismissed he had been notified that the employer was considering dismissing him for having caused the collision.

Opportunity to respond

[70] At the disciplinary meeting Mr Bamford had the opportunity to respond to the reason for which the employer was considering dismissing him and did so.

Refusal to allow a support person

[71] Mr Bamford was not refused having a support person present at any discussion relating to his dismissal.

Unsatisfactory performance warnings

[72] Mr Bamford had received two previous warnings for unsatisfactory performance the first on 2 August 2014 for having hit a gate whilst reversing out of the pine warehouse and again on 12 August 2014 for hitting the barrier on a freeway exit ramp.

Size of the employer’s enterprise

[73] The employer is a large business and the procedures followed were appropriate in this circumstance.

Dedicated human resource management specialists

[74] The employer does have dedicated human resource management specialists and the procedures followed were appropriate as would be expected.

Other matters

[75] Mr Bamford is 67 years of age and it is submitted on his behalf that as a consequence he will find it more difficult than some other employees to find alternative employment. This point does weigh in favour of concluding the dismissal was unfair.

[76] Over his 2½ years of employment Mr Bamford had been involved in a number of other incidents where his driving has been deficient which has resulted in some cases in damage to the respondent’s vehicles. This point weighs against concluding the dismissal was unfair.

[77] Neither Mr Bamford nor Mr Singh were alcohol or drug tested on the night of the collision however there was no suggestion either was affected by alcohol or drugs at that time. The failure of the respondent to properly follow its drug and alcohol policy on this occasion is not relevant to the question of whether the dismissal was harsh, unjust or unreasonable.

Conclusion

[78] In this case Mr Bamford was responsible for a collision which caused significant damage to another of the respondent’s vehicles. Contrary to the submissions on his behalf the balance of the evidence is that the demarcation lines between the two lanes were visible at the time of the collision and in any event Mr Bamford was familiar with this turn because he would regularly take this route as part of his daily duties. Consequently there are no mitigating circumstances.

[79] Mr Bamford does not have an unblemished driving record. In his 2½ years of employment with the respondent he has been involved in a number of other driving incidents. I accept the dismissal will pose some particular difficulties for Mr Bamford because of his age.

[80] Considering all of these circumstances my decision is that the dismissal of Mr Bamford was not harsh, unjust or unreasonable.

[81] The dismissal of Mr Bamford was not unfair and this application will now be dismissed. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

J. Clarke of the TWU for the applicant.

D. Coulton from the respondent.

Hearing details:

2015.

Perth:

July 30.

 1   Transcript at PN588 and PN589.

 2   Ibid., at PN935.

 3   Ibid., at PN482.

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