Felix Groza v Toll Transport Pty Ltd

[2020] FWC 5838

[2020] FWC 5838

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Felix Groza
v
Toll Transport Pty Ltd
(U2020/6137)

COMMISSIONER YILMAZ MELBOURNE, 2 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 5 May 2020, Mr Felix Groza made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Toll Transport Pty Ltd (Toll). Mr Groza seeks reinstatement and compensation 1.

[2] It is not in dispute that Mr Groza’s application satisfies the requirement of minimum employment period and coverage under an enterprise agreement pursuant to s.382 of the Fair Work Act 2009 (Cth) (the Act). It is not in dispute that Mr Groza’s employment was terminated on 17 April 2019 for misconduct, with the payment of three weeks’ notice, and that Toll is not a small employer.

[3] Toll called eight witnesses, Mr Groza gave witness evidence and both parties were self-represented.

Background

[4] Mr Groza commenced employment on 2 August 2018 in the position of full-time long-haul tanker driver.

[5] Toll submit there were a number of complaints regarding Mr Groza’s behaviour. The letter of termination of employment states that he was found to have engaged in misconduct. The incidences of misconduct were listed by the Respondent as follows:

•  On 13 January 2020, Mr Groza threatened the PM Operations Supervisor following a discussion about the air-conditioning for the fridge in the truck cabin with “you’re really lucky. You don’t know how lucky you are. One day you won’t be so lucky.”

•  On 15 January 2020, Mr Groza approached a forklift / manifest clerk in a threatening manner, raising his voice and making accusations regarding restraint of the loads during which she feared for her safety.

•  On 21 January 2020 Mr Groza yelled at the PM Operations Supervisor about smoke in the cabin which neither the Operations Supervisor or two other drivers could detect.

•  On 23 January 2020, being aggressive and abusive towards the PM Operations Supervisor about a fuel card.

•  On 1 February 2020, being confrontational towards the Operations Supervisor in Dubbo because the board did not have the Brisbane driver’s name next to his.

•  On a run between Eastern Creek and Melbourne on 10/11 January 2020, Mr Groza failed to comply with maximum hours and minimum rest in breach of the National Heavy Vehicle Accreditation Scheme and the Toll Driver Fatigue Management Standard. 2

[6] Mr Groza was given an opportunity to respond to all of the allegations, except the last, by 26 February 2020. It was not until Toll received Mr Groza’s response that it became aware of the “serious fatigue breaches” and logbook entries. Mr Groza was called in to meet with the PM Operations Supervisor to discuss the breaches. It was reported that Mr Groza referred to his supervisor as “Steve German” repeatedly even after being asked to stop. On this occasion Mr Groza attended the meeting without a support person. 3

[7] The letter of termination states that a letter dated 26 March 2020 (the show cause letter) was couriered to his home informing Mr Groza that Toll was considering terminating his employment and he was given until 1 April 2020 to respond. As no response was received by the due date, text messages on both 2 and 3 April 2020 were sent providing additional time until 6 April 2020. Toll submits that the text messages confirm that, should there be no response, a decision would be made on the information on hand. 4

[8] Mr Groza submits the allegations are fabrications and the behaviour towards him amounted to bullying, discrimination, harassment, humiliation, insult and intimidation by those involved and that the conduct by Toll was in breach of its own policies. 5

Submissions of the Applicant

[9] Mr Groza gave evidence that the allegations against him that he was aggressive, intimidating and threatening were fake and unsubstantiated. He submits that the allegations are intended to discredit him and divert attention from what he says is four (possibly more) individuals that bullied, harassed, insulted, intimidated and humiliated him, to cover up their own breach of Toll policies. In respect to the allegation that he failed to comply with the maximum hours of work and minimum rest obligations, he says that the allegation is to divert from the setting up of people, by requiring the use of faulty equipment and the allocation of jobs so that drivers cannot rest which puts drivers and customers at risk. 6 Mr Groza also submits that his first and final warning issued on 16 October 2019 was unsubstantiated.7

[10] In respect to process, Mr Groza submits that he met with Mr Tedeschi (State Operations Manager) and Ms Cvetkovic (HR Business Partner) and says that rather than being an observer, Ms Cvetkovic was rude, intimidating and threatening towards him. He submits she wanted him to sign an illegal piece of paper, which he refused. 8 He submits that he and his support person felt uncomfortable, threatened and insulted by the meeting.

[11] Correspondence from Toll that followed the meeting is described by Mr Groza as insults and evidence of bullying rather than allegations and his response was to deny its content.

[12] Mr Groza submits he was not allocated any work for the period 26 February 2020 to 17 April 2020. He admits to receiving a text message from Mr Tedeschi which confirmed he was required to provide a medical clearance before his return to work. Mr Groza submits he provided a medical certificate on 6 March 2020 clearing him to return to work. Toll admits to not allocating work to Mr Groza, due to requests for further medical information after Mr Groza complained of headaches and allegedly underwent a head scan. Subsequently, Mr Groza was stood down with pay during the disciplinary process.

[13] On 25 March 2020, Mr Groza submits he received a text message from Mr Tedeschi confirming he is to receive important mail via registered post on 26 March 2020 and is to reply. Mr Groza submits he received no registered mail but did receive texts on 27 March, 2 April, 3 April and 9 April 2020.

[14] Mr Groza attached to his outline of submissions documents relating to disciplinary action in July 2019 regarding failure to wear a seatbelt, a referral to an independent medical examiner on 3 June 2019 because of his alleged complaints that he was always tired and could not rest or sleep, a response in June 2019 following an independent investigation into his allegation of bullying towards him that found no substance to the allegation, copies of driver work diary daily sheets for 2019 and one in January 2020, copy of the first and final warning dated 16 October 2019 for using a hand held device while driving, a medical certificate dated 6 March 2020, letter of termination of employment dated 17 April 2020, and 48 Vehicle Driver Reports from mid October 2019 to 25 February 2020.

[15] A copy of the letter of allegations dated 18 February 2020, was tendered in evidence by Mr Groza. This letter required a response by 26 February 2020. Mr Groza provided a written response dated 26 February 2020, addressed to the Managing Director. This correspondence was tendered in evidence and it denies all allegations and describes them as insults and slander.

[16] Mr Groza denied ever receiving the show cause letter dated 25 March 2020. After the hearing, Mr Groza submitted photographs of his lobby and mailbox to demonstrate that a courier could not have left the letter in his mailbox.

[17] During the course of proceedings Mr Groza demonstrated his exasperation and bitterness, even hostility towards witnesses and Toll’s advocate.

Submissions of the Respondent

[18] Toll relies on the evidence of 8 witnesses and submits that Mr Groza failed to comply with its policies, including fatigue management standards.

[19] Toll submits that the policies breached by Mr Groza were:

•  The Code of Practice and the Workplace Behaviours Standard 9 which requires Toll employees to:

(a) Treat everyone in line with the Toll belief that if you show respect you will be respected, as well as act in accordance with Toll’s values of integrity and trust, safety, teamwork, being open and transparent and continuous improvement.

(b) Support and promote Toll’s commitments to positive workplace behaviour.

(c) Openly participate in workplace investigations with integrity.

(d) Never discriminate, harass, verbally abuse, bully, vilify, victimise or act, or threaten to act, violently towards another employee or anyone else.

•  The Fatigue Management Standard requires employees to:

(a) Comply with prescribed maximum hours of work and minimum hours of rest.

(b) Keep accurate records of hours of work and rest.

[20] Toll conducted an investigation into the allegations relating to the breach of policies and provided a letter on 18 February 2020 detailing each of the allegations made against Mr Groza. The letter sought a response by 26 February 2020. Mr Groza turned up to the Head Office seeking to meet with the Managing Director on 26 February 2020. After failing to meet with the Managing Director, Mr Groza left his letter which denied the allegations and provided no further information.

[21] Mr Groza was off work on sick leave from 20 February 2020 and provided a medical clearance to return to work on 6 March 2020. On 27 February a meeting was scheduled with Mr Tedeschi to discuss concerns over whether Mr Groza was fit to return to work, but he did not attend the meeting. Mr Groza was suspended with pay from 25 March 2020 while the disciplinary process was still on foot.

[22] The investigation was completed by Toll on 24 March 2020. Toll submits the investigation substantiated that the Applicant had:

(a) On 13 January 2020, threatened the PM operations Supervisor without provocation while investigating an issue the Applicant had raised with a vehicle.

(b) On 15 January 2020, acted in an aggressive and intimidating manner towards the Forklift Operator/ Manifest Clerk without provocation.

(c) On 21 January 2020, behaved in an aggressive and inappropriate manner towards the PM Operations Supervisor without provocation, during an investigation of an issue the Applicant had raised about a vehicle.

(d) On 23 January 2020, behaved in an aggressive manner towards the PM Operations Supervisor without provocation, after not finding a fuel card in his vehicle.

(e) On 1 February 2020, behaved in a confrontational and inappropriate manner towards the Operations Supervisor in Dubbo without provocation, in relation to information about a changeover of drivers. 10

[23] In relation to the breaches of the Toll Fatigue Management Standards, Mr Tedeschi met with Mr Groza on 6 March 2020 to discuss a trip on 10/11 January 2020 where the records showed a breach of the policy and the driver’s record that did not match the GPS tracking system. The GPS tracking system showed that Mr Groza did not take the required breaks at the right time. Mr Groza’s response was the tracking system must be wrong. The response gave Mr Tedeschi enough concern regarding his honesty and disregard to the fatigue standards. Mr Tedeschi also reported the insults by Mr Groza towards him during the meeting of 6 March 2020. 11

[24] The show cause letter dated 25 March was sent or couriered to Mr Groza, but he denies ever receiving it. Toll sent a text advising an important letter would arrive on 26 March 2020, and further texts were sent when a response was not received.

[25] Toll submitted in evidence the text messages to Mr Groza when he failed to respond to the show cause letter. Also attached to various witness statements were the independent investigation after Mr Groza complained about bullying in 2019, copies of his induction and training, Toll driver standards, relevant extracts from the GPS reports, notes of meetings and investigations and correspondence with a law firm that had represented Mr Groza from December 2019.

[26] I found the evidence of Messrs Smith, Tedeschi and Keca and Ms Cvetkovic and Ms Carney credible. However, evidence was lacking that the show cause letter was received by Mr Groza. Evidence of Ms de Rungs and Mr Wilkie exhibited that the relationship with Mr Groza was strained and unrecoverable.

[27] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[28] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I 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 Commission considers relevant.

[29] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 12

Consideration

Was there a valid reason for the dismissal related to capacity or conduct?

[30] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.” 13

[31] I find Toll’s reason for termination of employment is sound and defensible. The reason for the termination of employment relates to conduct and not capacity.

[32] Mr Groza had previously worked for Toll until he lost his driver’s licence; his performance was acceptable until his return in August 2018. On his return, his behaviour was reported as regularly aggressive, disrespectful and abusive. Such that he was barred due to altercations - from Sydney since February 2019 and Adelaide since March 2019.
[33] The evidence that Mr Groza displayed aggressive and abusive behaviour is compelling as the reasons for the termination of employment. Evidence tendered including the full independent investigation report established that there had been unacceptable behaviour by Mr Groza over a significant period. Mr Groza’s accusations that he had been bullied, victimised, insulted etc, appear to have stemmed from a complaint by a security guard after an altercation when Mr Groza directed racist abuse at him. After the complaint, Mr Groza himself lodged a complaint about Ms Carney, Mr Tedeschi and another employee, alleging failure to allocate work and allocation of defective trucks.

[34] The accusations by Mr Groza continued until his termination of employment and his evidence regarding the 48 Vehicle Driver Reports (VDR) shows the regularity of his complaints regarding alleged faults with vehicles, which he says go to roadworthiness, while Toll submits the VDRs relate to minor defects unrelated to roadworthiness. An analysis of the VDRs shows a range of faults such as reference to straps, looseness of mirrors and the like, although there were among them occasional references to the vehicle pulling to one side. I am satisfied that the frequency of the VDRs and the reasons for them in the main revealed Mr Groza’s frustration and anger.

[35] Mr Groza alleged that jobs were not allocated to him deliberately as a way of humiliating, bullying etc. However, the evidence shows that the allocation of jobs was hindered as he could not be allocated runs to Sydney and Adelaide, he failed to effectively communicate with Ms Carney and he failed to accept that he did not have a permanent run, but rather, was considered a floater driver (which Mr Groza took great exception to). Being without a permanent run meant that Mr Groza was required to make himself available at inconsistent times, which understandably frustrated him. Nevertheless, despite the frustrations, this did not excuse his abusive and aggressive behaviour.

[36] It is apparent from the evidence that Mr Groza accepts no responsibility nor engages in self-refection even in the face of evidence of his disparagement of staff. Referring to staff in language used by Mr Groza, and not denied by him, is an obvious breach of Toll’s Code and Standards, but also of general social expectations. While giving evidence Mr Groza often did not curtail his temper and disdain. Where critical facts were in dispute, I favour the witness evidence for the Respondent.

[37] Any undeniable evidence such as using a handheld device, not wearing a seatbelt or failure to comply with the fatigue management standards were denied by Mr Groza and his response was that it was a lie, fabrication or error. Mr Groza did not admit that his mobile device was a phone, he described it as a computer. Regardless whether the personal device was a phone or a mobile personal device of any sort, it was a breach of Toll policy and had he been on the road it was a breach of road laws. His response to the photograph failing to show his wearing of a seatbelt was deflected as a conspiracy or conspired alteration of the photograph; and the GPS system was described as an error. None of Mr Groza’s explanations were plausible or persuasive in my opinion.

[38] Mr Groza alleged that he was required to sign an illegal piece of paper. Toll submit they asked him to sign a confidentiality agreement relating to the investigation process, which he refused. While this matter was raised, it was not a major contentious matter. I make no findings regarding the issue as I do not consider it pertinent to valid reason and process as Mr Groza refused to sign the document and it had no bearing on Toll’s decision to ultimately terminate his employment.
[39] I find that Mr Groza breached the Code, policies and standards and his history of behaviour was that he did not accept any wrongdoing. Rather his behaviour during the hearing almost suggested enjoyment of the constant disputation between himself and others at Toll.

[40] I am satisfied that the conduct Toll describes as the reason for the termination occurred and that it justified termination. I find this consideration does not weigh in Mr Groza’s favour.

Was Mr Groza notified of the valid reason?

[41] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 14 and in explicit15 and plain and clear terms.16

[42] Mr Groza was required to attend a meeting on 18 February 2020, where the allegations were communicated in writing and again on 6 March 2020 concerning the fresh allegations. On both occasions Mr Groza understood the purpose of the meetings. Mr Groza was asked to consider the allegations and provide a response.

[43] Mr Groza was aware of the allegations made against him and he was aware that a show cause letter had been sent or couriered. While there is no evidence that he received it, the evidence was that he was well aware that a show cause letter existed and that he was required to respond initially by 1 April, and then by 6 April 2020 when the deadline was extended. Mr Groza made no attempt to contact Toll regarding the show cause letter, or to respond to the text messages which sought a further meeting with him or at least a response.

[44] I am satisfied that Mr Groza was notified of the reason for his dismissal on the basis of correspondence concerning the allegations, the show cause letter and the termination of employment letter together with the text messages and correspondence with his legal representative. 17 While a final meeting did not occur, I find that Mr Groza’s refusal to respond effectively denied himself of any further opportunity to persuade Toll not to terminate his employment.

Was he given an opportunity to respond to any valid reason related to his capacity or conduct?

[45] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 18

[46] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 19 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.20

[47] I am satisfied that Mr Groza had the opportunity to respond to any valid reason relating to his conduct which was the reason for his termination of employment. I do not consider that this consideration weighs in Mr Groza’s favour.

Did Toll unreasonably refuse to allow the Applicant to have a support person present?

[48] Mr Groza was not denied the opportunity to bring along a support person. He also had a support person at the meeting of 18 February 2020 and chose not to bring along a support person at subsequent meetings. There was no evidence that Toll refused to allow a support person, therefore this consideration is neutral.

Was he warned about unsatisfactory performance before the dismissal?

[49] Mr Groza was not dismissed for performance but rather conduct. Toll provided details of the conduct it considered serious enough to constitute misconduct. I also note that on 16 October 2019 Mr Groza received a first and final warning for using a mobile device while driving, this conduct being in breach of its driver safety standards and policies. While Mr Groza described the first and final warning as a fabrication, I do not accept it as such. While giving evidence, Mr Groza denied any wrongdoing for an obvious breach.

[50] The previous warning in my opinion in this case provides sufficient procedural fairness to justify termination of employment. Having received the previous warning, it is reasonable that Mr Groza would have understood the severity of the allegations made against him. Further, I suspect that he understood the gravity of them, which is likely the reason that he failed to respond when he became aware that there was a show cause letter.

[51] I am satisfied that a reasonable person would accept that the warning conveyed the reason for the employer’s concerns, and that employment was at risk, unless the conduct or performance was addressed. 21 The warning was a breach of the Toll driver standards and policies, which Mr Groza understood were serious enough to lead to termination of employment. Mr Groza would have reasonably understood that his subsequent behavior in breach of standards and policies would be serious enough for termination of employment. I note the training and induction materials tendered in evidence which were familiar to Mr Groza, a seasoned driver, was evident of his awareness of the rules.

To what degree would the size of the enterprise and degree of human resource expertise be likely to impact on the procedures followed in effecting the dismissal?

[52] Toll submits this consideration is neutral. I note that Toll is not a small employer and has human resource specialists. This consideration is relevant in so far as relying on a belief that Mr Groza had received the show cause letter. However, evidence was lacking that Mr Groza in fact received the letter. Despite the lack of evidence of receipt, I am satisfied that Mr Groza was aware of its existence and this failure of Toll is not so serious to affect procedural fairness afforded to Mr Groza.

What other matters are relevant?

[53] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[54] Toll submits that Mr Groza did not have a substantial period of service, that he did not have a clean record and that he was uncooperative during the investigation and disciplinary process. I agree with Toll’s observations and I also note that the conduct which led to Mr Groza’s termination of employment was regular, offensive and serious. Further the act of deliberately falsifying driver records which are intended to ensure the safety of drivers and the public are serious.

[55] I do not accept the implausible defences by Mr Groza which were no more than denial and disparaging accusations. I do not consider on the evidence any of Mr Groza’s behaviour excusable or in any way reasonable in the circumstances. There was nothing in the evidence to suggest that Mr Groza was remorseful or considerate of his behaviour, therefore the likelihood of continued unacceptable behaviour was most likely to continue.

Harsh, unjust or unreasonable?

[56] Toll dismissed Mr Groza for misconduct. They carry the evidentiary burden of proof, which in my opinion they have satisfied. Mr Groza was an experienced driver, his test results demonstrated that he understood his obligations and was capable in performing to the required standards. However, his conduct which was aggressive and threatening, was unacceptable, even if they were due to his frustrations to not having a permanent run. This unacceptable behaviour had deteriorated the working relationships to the point he was unwelcome in Sydney and Adelaide, and the relationship with drivers and the Supervisor in Dubbo was also clearly strained. Staff at the Altona depot were either fearful or wary of his aggression or offensive language. If not for the termination of employment at that time, I consider termination of employment was inevitable unless Mr Groza accepted and amended his behaviour. This was not likely because of his denial of any wrongdoing and continued unacceptable behaviour.

[57] Mr Groza’s repeated conduct, prior written warning and lack of remorse or acceptance of responsibility for his wrongdoing was enough for Toll to make the decision to terminate his employment. The reason was misconduct and Toll paid three weeks in lieu notice.

[58] Mr Groza was not denied procedural fairness.

[59] I have considered each matter specified in section 387 and in reaching my determination I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case including the gravity of the reason for dismissal which I do not think was disproportionate to the outcome of dismissal on the basis of misconduct.

[60] I am satisfied that all of the circumstances do not weigh in favour of finding that the dismissal was harsh, unjust or unreasonable.

Conclusion

[61] I am satisfied that Toll considered Mr Groza’s conduct and his explanation was serious enough to warrant termination for misconduct. The object of the Act is a “fair go all round”, it is not for the Commission to stand in the shoes of the employer. In terms of the employer’s decision to terminate Mr Groza’s employment for misconduct with notice and having considered all the relevant factors I do not consider the termination unfair.

[62] As the dismissal was not unfair, I am not required to consider issues of remedy.

[63] For these reasons, I will issue an order separate to this decision, that the application be dismissed.

COMMISSIONER

Appearances:

Mr F. Groza for himself

Ms C. McCutcheon for the Respondent

Hearing details:

2020
Melbourne (via Microsoft Teams)
13 and 14 August

Printed by authority of the Commonwealth Government Printer

<PR724161>

 1   Applicant’s form F2 at Q2.

 2   Letter of Allegations dated 18 February 2020, evidence of Messrs Tedeschi and Smith.

 3   Evidence of Mr Tedeschi.

 4   Ibid and text messages attached to Mr Tedeschi witness statement.

 5   Applicant’s outline of submissions, witness statement and witness evidence.

 6   Applicant’s outline of argument at Q3c.

 7   Ibid.

 8   Ibid.

 9   Code of practice and Workplace Behaviours Standard attached to statement of Ms Cvetkovic at EC-1 and EC-2

 10   Show cause letter dated 25 March 2020.

 11   Evidence of Mr Tedeschi.

 12   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 13   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 14   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 15   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 16   Ibid.

 17   Attachment to Statement of Ms Cvetkovic.

 18   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

 19   RMIT v Asher (2010) 194 IR 1, 14-15.

 20   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

 21   Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].