DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Fraser Murray
v
Reliable Petroleum Pty Ltd
(U2017/1796)

COMMISSIONER HAMPTON

ADELAIDE, 20 JULY 2017

Application for relief from unfair dismissal – transport driver – single speeding incident – conduct not deliberate but inattention in breach of policies, road traffic law and reasonable requirements – serious incident and despite immediate recognition and remorse valid reason for dismissal found – no prior counselling and no previous incidents of speeding or other traffic offences in over 39 years of truck driving – incident and responses by applicant not sufficient to objectively lead to a loss of trust – no reasonable basis for concerns about future conduct – dismissal harsh and unreasonable in the circumstances – remedy – remedial benefit of reinstatement – contrition and reasonable basis for future expectation of safe work – insufficient grounds for loss of trust and confidence found – reinstatement appropriate and ordered – six months loss of wages will result and no order to be made – order for continuity of employment and service – application granted.

1. Introduction and case outline

[1] This decision deals with a difficult matter, not because of significant factual disputes or any conjecture about the application of the relevant legislation. Indeed, the parties have agreed upon a comprehensive set of facts and the differences that exist in the evidence are not about the substantive facts. Further, there is in general terms common ground about the principles which should be applied. Rather, the difficulty arises from the balanced judgement that has to be made as to whether the dismissal of Mr Fraser Murray by Reliable Petroleum Pty Ltd (Reliable Petroleum) for a single, but serious, speeding incident as a driver was unfair in all of the relevant circumstances. In the end result, that judgement becomes clear when the circumstances are considered objectively in light of the Commission’s statutory charter.

[2] Mr Murray was engaged to drive fuel tankers in and around Adelaide and some regional locations for Reliable Petroleum and had done so since October 2015. Indeed, Mr Murray had been a fuel tanker driver for other companies, including predecessors to the business now operated by Reliable Petroleum, for over 39 years without incident or incurring any speeding or traffic offences in that capacity. However, on Monday 5 December 2016, Mr Murray was recorded by a fixed speed camera located on the South Eastern Freeway travelling down from the Adelaide Hills as travelling at 88kms per hour some short distance into a 60 kms per hour zone. That speed limit applies only to trucks and buses at that point and it is a reasonable inference that the limit was established to slow down heavy vehicles before what is a long and relatively steep and potentially dangerous decline into metropolitan Adelaide.

[3] The statutory context for this decision is that Mr Murray has made an application under s.394 of the Fair Work Act 2009 (the FW…

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: [2017] FWC 3552
Decision Date: 20 JULY 2017

CaseChat Overview and Summary

In the case of Fraser Murray v Reliable Petroleum Pty Ltd, the applicant, a transport driver for the respondent, sought relief from a decision to terminate his employment. The dismissal was based on a single incident where the applicant exceeded the speed limit, which led to a charge under the Road Traffic Act. Although the incident was not deliberate, it breached the respondent’s policies and reasonable requirements as a transport driver. The applicant had an unblemished record of over 39 years without any speeding or other traffic offences. The applicant immediately recognised his mistake and expressed remorse, but the employer proceeded with the dismissal.

The central legal issue was whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The court had to consider whether the incident, in isolation, justified the termination of employment and whether the applicant's contrition and long-standing safe record could mitigate the employer's concerns. The court also needed to determine if the dismissal was necessary to preserve the employer's legitimate interests, including the maintenance of trust and confidence.

The court found that while the incident was serious, it was not deliberate and there was no prior counselling or previous incidents to suggest a pattern of unsafe behaviour. The applicant's immediate recognition of the mistake, his remorse, and his long history of safe driving indicated that the incident did not objectively lead to a loss of trust. The court concluded that the dismissal was harsh and unreasonable because the incident and the applicant's responses did not justify the loss of employment. The court ordered the applicant's reinstatement and continuity of employment, but did not award any additional compensation for the six months' loss of wages.

The final orders of the court were that the dismissal was unfair, and the applicant was to be reinstated to his position. The court also ordered that the applicant's employment and service would continue as if the dismissal had not occurred, with no additional compensation for the loss of wages.

Orders