Geoffrey Ross Rowan and Driver Education Centre of Australia Ltd

[1994] IRCA 165

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1182 of 1994

BETWEEN:

GEOFFREY ROSS ROWAN
Applicant

AND

DRIVER EDUCATION CENTRE OF AUSTRALIA LTD
Respondent

MINUTES OF ORDER

21 December 1994  Judicial Registrar Fleming

THE COURT ORDERS:

1. That in terminating the employment of the applicant the respondent did not contravene Section 170DC of the Act.

2. The application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1182 of 1994

BETWEEN:

GEOFFREY ROSS ROWAN
Applicant

AND

DRIVER EDUCATION CENTRE OF AUSTRALIA LTD
Respondent

COURT:        Judicial Registrar Fleming

PLACE:         Melbourne

DATE:  21 December 1994

REASONS FOR JUDGMENT

In this matter the applicant alleges that his employment was terminated in contravention of Section 170DC and Section 170DE of the Industrial Relations Act 1988 (“the Act”). The applicant seeks the following orders:

1. An order declaring the termination of the employee to have contravened Division 3 of Part IVA of the Act and an order requiring the respondent to reinstate the employee.

2. An order that the respondent make compensation to the employee.

Background And Summary Of Findings

The applicant was employed by the respondent for 10 years.  His employment with the respondent terminated on 12 July 1994.

The applicant gave evidence which is uncontested that he instructed learner truck drivers.  In the week commencing 6 June 1994 he was instructing Leanne Anderson, Peter McPherson, Michael Sinclair and Shane Higginson in a long haul course.  It was a five day course, four days working in the depot or driving around town and one day was spent driving along the Hume highway.

Ms Anderson gave evidence that while she was driving the truck, under the supervision of the applicant and in the presence of the other three students, at the overpass at Barnawatha (on the Hume highway) the applicant instructed her to move while the truck was in motion so that another student could drive.  Ms Anderson’s evidence is that as the truck was coming down the entry ramp towards the Hume highway the applicant said to her “shift your arse” to which she replied “you have got to be kidding” and she said she did as she was told as quickly as she could so as to minimise the danger.  She also said that she was frightened.  She said the applicant had taken control of the wheel and she did not feel that she could argue with him.  The vehicle was without a driver for ten to twenty seconds and its speed was approximately 20 kph.

Ms Anderson gave evidence that Mr McPherson moved into the drivers seat to replace her and that there was some confusion.  Mr McPherson corroborated Ms Anderson’s evidence as did Mr Sinclair.

Ms Anderson gave evidence of the second incident later on that day when only three students were present as Mr McPherson had left for the day.  It was an incident at the same location involving Mr Higginson who was driving and he was told by the applicant to swap and did so with Mr Sinclair.  The vehicle was travelling at approximately 40-60 kph and it was driverless for 10-15 seconds.  The changeover was smoother on this occasion because students now knew what was expected of them.

A complaint was made on 24 June 1994 by Ms Anderson to Mr Sutherland of the respondent who in turn rang Mr Hoenfagles who then spoke with Mr Palamountain.

Mr Palamountain sought a written report and sought written statements from the students.  Ms Anderson and Messrs Sinclair and McPherson provided statements which on his evidence Mr Palamountain received on 5 July 1994.  Mr Palamountain then spoke  to the Chief Executive Officer of the respondent Mr Bushby on 6 July and it was agreed that the applicant would be called into the office and given details of the allegations against him and an opportunity to respond.

A letter detailing the allegations was prepared and at a meeting on 7 July which the applicant attended the allegations and a copy letter was given to him.  He was told he did not have to respond then but to go home and think about it.  He was told the allegations were serious enough to warrant immediate suspension with pay, he was told to attend another meeting on 11 July with is representative.

On 11 July the applicant attended with his solicitor and his union representative and Mr Bushby and Mr Palamountain of the respondent were also present.

Mr Palamountain gave evidence and after statements were read to the meeting, the applicant’s solicitor sought copy statements.  Copy statements were shown to the applicant’s solicitor but copies were not provided by the respondents.

Mr Palamountain decided that because there was a conflict in the evidence, that is, that the applicant denied there had been a changeover in the manner alleged, that Mr Palamountain would make further investigations.  Later that same day he rang the students again and on his evidence the students were emphatic that it had happened.

At a further hearing on 12 July 1994 attended by the applicant and his legal representative and his union representative and also Mr Bushby and Mr Palamountain of the respondent the applicant was given another opportunity to elaborate and to put his case.  The applicant maintained his denial of the incident alleged.  It was at this meeting that Mr Bushby stated that in view of the seriousness of the allegations that the actions of the applicant amounted to gross negligence and he placed the lives of the students and other road users in danger and also put at risk a significant asset of the respondent.

Mr Bushby however sought to give the applicant four weeks salary and Mr Bushby’s evidence was that he did not think the applicant had any difficulty understanding the allegations against him and the significance thereof.

In his evidence in court the applicant stated for the first time that there had been an incident on the entry ramp onto the Hume highway where there was a swap or changeover but that the vehicle was not moving.  He also stated that if the conduct alleged had in fact occurred it would not be possible to justify.

I accept the evidence of Ms Anderson corroborated by Messrs McPherson, Higginson and Sinclair.  I accept that there was a changeover of driver on the Barnawatha overpass entry ramp to the Hume highway and that this placed all occupants of the vehicle plus other road users in danger.  It also put at risk an asset of the respondent and also the respondent’s reputation as a provider of professional teaching services.  I do not accept the evidence of the applicant that he did not understand the allegations made against him either on 7 July or 11 or 12 July.

Section 170DC - Employee Opportunity To Respond To Allegations

Section 170DC provides:

“an employer must not terminate an employees employment for reasons related to the employees conduct or performance unless

a)the employee has been given the opportunity to defend himself or herself against the allegations made; or

b)the employer could not reasonably be expected to give the employee that opportunity.”

I accept the evidence of the witnesses for the respondent that the allegations were put to the applicant on at least three occasions. I accept that the applicant was given an opportunity to respond to those allegations and that I note the only time he admitted to any changeover in the vehicle with the students was in court. I accept that he had never admitted prior to his giving evidence that there had been any changeover of drivers. The obligation arising under section 170DC requires that the employer accord an opportunity and to truly do this the employer must take steps to ensure that employees are aware that prior to the termination of the employment he will be heard in his own evidence. In this regard I refer to the decision relied upon by the respondent’s counsel, Ms Davis, in the decision of Wilcox CJ N Nicolson -v- Heaven & Earth Pty Ltd (unreported, 20 September 1994), wherein the Chief Justice said at page 23-24:

“the paragraph does not require any particular formality. But this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170DC carries into Australian Labour Law a fundamental component of the concept known to lawyers as “natural justice” or, more recently, “procedural fairness”. The relevant principle is that a person should not exercise legal power over another, to that persons disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well established in public administrative. It was accepted in international labour law when article 7 was inserted in the Termination of Employment convention. Section 170DE is directly modelled on article 7. The principle is, I believe, well understood in the community. It represents part of what Australians call “a fair go”. In the context of Section 170DE it is not to be treated lightly. The employee is to be given an opportunity to defend himself or herself “against allegations made”; that is, the particular allegations of misconduct or poor performance that are putting the employee’s job at risk. Section 170DC is not satisfied by a mere exhortation to improve.”

It is my finding that the respondent did accord the applicant such an opportunity in this case. I find therefore that in terminating the employment of the applicant the respondent complied with Section 170DC of the Act.

Section 170DE(1) - Valid Reasons

In relation to my earlier findings of fact I am satisfied that the respondent did have a valid reason for the termination of the applicant’s employment.  I find that the termination was not harsh, unjust or unreasonable given the applicant’s conduct in failing to responsibly execute his duties as a driving instructor.  I find that the applicant has a duty to instruct students in the operation of long haul vehicles which includes road safety.  The applicant has a higher duty than other road users given he is in a position of authority and given he was teaching students.  The applicant’s evidence was that if the conduct alleged in fact had occurred he would find it hard to justify.  This court adopts the same view.

Orders

1. That in terminating the employment of the applicant the respondent did not contravene Section 170DC of the Act.

2. The application be dismissed.

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.

Associate:

Dated:            21 December 1994

Representative for the Applicant:	Leon Carter
Solicitor for the Respondent: Counsel for the Respondent:	Arthur Robinson & Hederwicks Sandra S. Davis
Date of hearing:	2 December 1994
Date of Judgment:	21 December 1994