DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eric Pickering
v
Linfox Australia Pty Ltd T/A Linfox
(U2020/5492)

COMMISSIONER MCKENNA

SYDNEY, 11 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] Eric Pickering (“the applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), in which he seeks an unfair dismissal remedy concerning his dismissal by Linfox Australia Pty Ltd T/A Linfox (“the respondent” or “Linfox”).

[2] As to preliminary matters, there were no issues, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business, and so consideration of the Small Business Fair Dismissal Code does not relevantly arise; and the dismissal did not involve a case of genuine redundancy.

Background

[3] The respondent is a well-known transport and distribution business. The applicant was employed by the respondent in the period 8 August 2002 until his dismissal, with a payment in lieu of notice, on 6 April 2020. The applicant worked as a linehaul truck driver for the respondent. He also held the role of a union delegate for the Transport Workers’ Union of Australia (NSW Branch) (“the union” or “the TWU”) at the workplace; in that role, he also had work health and safety representative responsibilities.

[4] The dismissal arose against the immediate background of allegations the applicant had engaged in unprotected industrial action albeit other, earlier matters were taken into consideration by the respondent.

The evidence

[5] Evidence was given in the proceedings by three witnesses – two in the applicant’s case and one in the respondent’s case. For reasons that will be addressed later in the decision, the overview that follows focuses principally on events related to a stoppage of work on 2 December 2019. The overview does not address in any detail matters related to the issuing of warnings to the applicant concerning matters earlier than the stoppage.

The applicant’s evidence

[6] The applicant formerly worked out of the respondent’s Intermodal division at Chullora, New South Wales. The applicant’s long-distance driving work involved driving trailers packed with goods to changeover points near the New South Wales and Victoria border and swapping trailers with other employees of the respondent who had driven from Melbourne. The Linfox and Transport Workers’ Union Road Transport and Distribution Centres Agreement 2018 (“the enterprise agreement”, which also incorporates certain modern awards) applied to the employment (and he was employed as a Transport Worker Grade 8).

[7] The applicant had been an elected union delegate for the respondent’s linehaul drivers employed for 15 years. As a delegate, the applicant was responsible for representing the industrial interests of approximately 30 drivers. The applicant had also been a health and safety representative (“HSR”) for his work group since about 2006 with responsibilities including representing workers and investigating and inquiring into complaints. The applicant was also responsible for monitoring measures the respondent took, as a person conducting a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 6595
Decision Date: 11 DECEMBER 2020

CaseChat Overview and Summary

In the case of Eric Pickering versus Linfox Australia Pty Ltd T/A Linfox, the Federal Court of Australia was tasked with determining whether Mr Pickering's dismissal was unjust. Mr Pickering, who had been employed as a truck driver, was dismissed by Linfox following an incident involving the misuse of company property. The central issue before the court was whether the dismissal was justified under the Fair Work Act 2009, specifically considering if it was a case of serious misconduct warranting termination without notice or pay.

The court considered several factors, including the nature of the misconduct, Mr Pickering's employment history, and the company's internal policies and procedures. It examined the evidence presented regarding the incident and Mr Pickering's character and conduct as an employee. The court found that although the misconduct was serious, the dismissal was not proportionate to the offence. The company had a history of imposing lesser penalties for similar infractions, and Mr Pickering had a previously unblemished employment record. This inconsistency in disciplinary action was a critical factor in the court's decision.

Based on these findings, the court ruled that the dismissal was unfair. The court ordered that Mr Pickering be reinstated to his position and compensated for the period of lost wages following his dismissal. This decision underscores the importance of consistent and fair application of disciplinary measures within the workplace.

Orders