Glenn Gervasoni v Rand Transport (1986) Pty Ltd
[2009] FWA 1269
•2 DECEMBER 2009
Note: An appeal pursuant to s.120 (C2009/11380) was lodged against this decision - refer to Full Bench decisions dated 30 March 2010 [[2010] FWAFB 2526] and 19 August 2010 [[2010] FWAFB 6324] respectively for result of appeal.
[2009] FWA 1269 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
v
Rand Transport (1986) Pty Ltd
(U2009/10299)
COMMISSIONER BLAIR | MELBOURNE, 2 DECEMBER 2009 |
Termination of employment - arbitration.
[1] This is a decision arising out of an application by Mr Glen Gervasoni (the Applicant) under s.643 of the Workplace Relations Act 1996 alleging that his termination was harsh, unjust and unreasonable.
[2] The Respondent in the matter is Rand Refrigerated Logistics (the Respondent).
[3] The matter was unable to be resolved in conciliation therefore the matter presented itself for arbitration. The arbitration was dealt with on 12 November 2009. Mr Dircks represented the Applicant and Mr Heathcote represented the Respondent.
[4] In the Applicant’s form R27 he states that he commenced employment on 29 October 2007 and the last day he worked was 19 June 2009. The date the termination took effect was 24 June 2009.
[5] On the form R27 the Applicant states that his termination was harsh, unjust and unreasonable. The Applicant also believes that there was a breach of s.659 in that the Applicant believes that his recent illness was a factor in his dismissal.
[6] In the Respondent’s form R28, they stated that the reasons for the termination were that in relation to the Applicant’s claim under s.643 the Respondent stated that the Applicant was dismissed because he performed his duties ie: he drove a truck in an unsafe manner. In regards to the claim under s.659 the Respondent denies that they dismissed the Applicant for a prohibited reason or for reasons that included a prohibited reason.
[7] The Applicant’s outline of submissions states the following:
“1. The applicant was dismissed for alleged speeding.
2. The evidence on which the respondent drew conclusions of speeding was solely on the basis of a GPS tracking device installed on a trailer he was driving.
3. The tracking device was installed and operating without the applicant’s consent or knowledge.
4. The applicant disputes that the alleged speeds on a GPS tracking device are necessarily accurate.
5. We submit that such evidence if allowed to be admitted provides a poor evidentiary basis on which to dismiss an employee.
6. The applicant had no warnings. We stress the relevance of warnings, given that the applicant had previously been pulled over by police about speeding.
7. The respondent’s response at the time was to ignore the speeding issue and to instruct the applicant to instruct a driver to hook up and take the trailer to Adelaide against police instructions.
8. We submit that in doing so the respondent has condoned speeding behaviour.
9. If the employer condones the employee’s misconduct then the right to summarily dismiss the employee will be treated as having been waived: 1
“The word (condonation) is used as applicable to a case where a master with full knowledge of a servant’s misconduct continues to retain him in his, the master’s service . . . The master must be fully aware that the servant by his misconduct forfeited his right to be continued in his master’s service, which is the correlative of the master’s right to dismiss him, before that can be held to waive that forfeiture.” 2
10. It is understood that the applicant was travelling in the same manner and speed as two other drivers from the same company doing the same route that night.
11. Neither of the others was terminated.
12. It is not known whether they also had tracking devices placed on their vehicles.
13. The applicant’s view is that he was singled out on the basis of his medical restrictions, which were a problem for the employer.
14. If the applicant and the other drivers were driving in the same manner it would appear that the applicant was treated inequitably.
15. The Commission has previously held “The differential treatment of employees in the same, substantially similar or otherwise relevant circumstances has been judged to be relevant for consideration in matters such as this by a number of decisions of Full Bench's and single members of the Commission.” 3
[8] A further issue arises out of the Applicant’s submissions and that relates to admissible evidence in that the argument is the speed limits alleged to have been incurred by the driver were identified on a GPS tracking device fitted to the trailer of the semi-trailer. The Applicant states that under the Evidence Act 1995, section 138, the evidence obtained by using the GPS tracking system should not be entertained by the Tribunal.
[9] The Tribunal’s attention was also drawn to the Surveillance Devices Act 1999, section 8. Section 8 states:
“8. Regulation of installation, use and maintenance of tracking devices
(1) Subject to subsection (2), a person must not knowingly install, use or maintain a tracking device to determine the geographical location of a person or an object-
(a) in the case of a device to determine the location of a person, without the express or implied consent of that person; or
(b) in the case of a device to determine the location of an object, without the express or implied consent of a person in lawful possession or having lawful control of that object.”
[10] In regard to the issue of valid reason, the Applicant’s outline of submissions states the following:
“1. There is no valid reason for the dismissal related to the applicant’s capacity or conduct that is sound or defensible.
2. The applicant was driving a speed limited truck and it was acceptable and common practice to roll the truck off the hills.
3. The GPS data is not to be automatically accepted as providing any reliable evidence of misconduct.
4. There is no body of accepted evidence that the use of such devices is a reliable measure of speed over short distances.
5. Owners of mobile phones with GPS facility are likely to be aware of the disparity between actual movement and the registered movement on screen.
6. Literature from overseas also points to calibration issues that bring the probative value of GPS data into doubt.
7. Put briefly, the data could be plainly wrong.
8. In the document “File note” the employer concludes that the speed limited device was most probably disabled. There is absolutely no evidence of this.
9. That is, the employer is aware that both the GPS as a speed measuring device and the truck’s speed limiter are not consistent.
10. The applicant did not disable the speed limiter. Therefore if the speed limiter was operative it is likely that the GPS data is simply not reliable.
11. The applicant had never had prior warnings to speeding from the employer and in fact on the prior occasion when the applicant notified the employer he was caught speeding by the police the employer accepted the transgression as an acceptable part of employment practice and did not issue any warning.
DISPROPORTIONATE RESPONSE AND UNFAIR TREATMENT:
12. On a previous occasion a driver was given a first and final warning whereas the applicant’s employment has been terminated.
13. The employer was inconsistent in their approach. On one hand they were prepared to instruct that a trailer be moved whilst unregistered, were prepared to overlook speeding by other drivers but were not prepared to afford the same outcome to the applicant.
14. The only difference in relation to the applicant is that he had a medical condition which restricted him to four days a week and this clearly did not suit the employer and coupled with the fact that other employees were only warned about speeding. The logical conclusion is that the applicant’s medical condition played a role in the decision to terminate him.”
[11] The Respondent, in the Outline of Submissions, states the following:
“1. The Applicant made an Australian Workplace Agreement (“AWA”) with the Respondent on 3 September 2007. The Applicant agreed, pursuant to clause 6 of the AWA, to:
(a) be diligent and careful about the way he performed his work; and
(b) comply with all applicable occupational health and safety laws and regulations, and with the Respondent’s occupational health and safety policies and instructions.
2. On 5 October 2007, the Applicant completed an Employment Application Form, undertaking to:
(a) abide by all Award conditions; and
(b) observe all of the Respondent’s regulations and statutory regulations including in relation to health and safety matters.
3. The Applicant commenced employment with the Respondent as a line-haul driver on 29 October 2007.
4. On 14 November 2007, the Applicant participated in the Respondent’s induction training that included instructions about:
(a) following the Respondent’s safety standards and procedures;
(b) not misusing safety equipment;
(c) ensuring that vehicles are in a condition that complies with road safety laws; and
(b) ensuring that all mobile plant and vehicles are in a satisfactory condition prior to being used.
5. On 16 November 2007, the Applicant signed an Employee Induction Acknowledgement form confirming that:
(a) he had participated in the Respondent’s induction programme and had been instructed in the required work procedures, paperwork requirements, human resources policies, occupational health and safety and emergency procedures; and
(b) he undertook to work within the provisions of the Occupational Health and Safety Act 2004 (VIC) and Regulations and to abide by all of the Respondent’s rules.
6. On 2 January 2008, the Applicant completed an Incident Report for being ‘booked’ by the police for travelling at 126km/hr. The Applicant claims that the speed limiter fuse was blown which resulted in the speedometer not working. The Applicant states that he replaced the blown fuse with a spare fuse from the glove box when he arrived at Nhill. The Applicant did not explain why he didn’t replace the blown fuse immediately.
7. The Applicant was verbally warned by Shaun Coniglio (at that time, the Respondent’s Regional Manager for Victoria) for speeding.
8. The Respondent has contracted with APS, a labour hire company, to provide it with drivers. On 25 April 2009, the Applicant sent the Respondent’s then Regional Manager for Victoria an email, alleging that an APS driver was speeding (travelling at 110km/hr) in circumstances where the truck the Respondent had supplied to the APS driver was speed limited to 99.2km/hr. The Applicant claimed the APS driver could not have travelled at such speed “without pulling the fuse”. It is clear that the Applicant has a working knowledge of how to disable a speed limiter by removing the relevant fuse.
9. On 19 June 2009, the Applicant drove prime-mover 302 (PM302) from the Respondent’s Derrimut depot to Tarcutta. On reaching Tarcutta, the Applicant was to meet a similar south-bound truck from Sydney, swap trailers, and then return to the Respondent’s Derrimut depot.
10. The journey the Applicant undertook on 19 June 2009 was a journey he had undertaken at least 3 times per week during his employment.
11. On 22 June 2009, information became available to the Respondent, from the CoolTrax system which the Respondent was trialling, to suggest that the Applicant had been speeding on 19 June 2009. In particular, the information suggested that the Applicant had travelled at:
(a) more than 110km/hr on at least 24 occasions from Derrimut to Tarcutta;
(b) an overall average speed of 94.65km/hr from Derrimut to Tarcutta;
(c) an overall average highway speed of 108km/hr from Clonbine on the Hume Hwy to Tarcutta; and
(d) a maximum speed of 129.6km/kr at Kyeamba, New South Wales.
12. The Applicant met with the Respondent’s State Manager (David Cartan) and Administration Manager (Kevin Forte) on the evening of 22 June 2009. At the meeting, the Respondent informed the Applicant that:
(a) the Respondent had information to suggest that the Applicant was speeding on 19 June 2009, and had travelled at speeds of up to 129km/hr;
(b) the Respondent would test the information that suggested the Applicant had been speeding to ensure that it was accurate;
(c) the Applicant was to be stood down during the investigation;
(d) if the investigation confirmed that the Applicant had been speeding, then the Applicant’s employment was at risk; and
(e) the Respondent would contact the Applicant once the information had been reviewed.
13. During the meeting, the Applicant:
(a) admitted that he had been speeding;
(b) claimed that he was following a driver nicknamed “Rocket Rod” and asserted that, if he was speeding, then Rocket Rod was speeding too; and
(c) claimed that his speed could be accounted for by “running the truck down the hill”.
14. The investigation undertaken by the Respondent, through the CoolTrax supplier and the truck servicing and repair agent, concluded that:
(a) the speed limiter on PM302 was electronically and mechanically sound, and when tested against a GPS, functioned properly and speed limited to 99.5km/hr; and
(b) the GPS device on the CoolTrax system is accurate 95% of the time to within 0.1km/hr.
15. The Respondent considered that information and concluded that:
(a) the CoolTrax system’s information was that the Applicant had been speeding;
(b) the speed limiter on PM302 was functioning properly after the Applicant’s journey but not during the journey;
(c) the Applicant did not report any malfunctioning of the speed limiter;
(d) the road conditions from Derrimut to Tarcutta and “running the truck down the hill”, could not account for the high maximum speeds driven by the Applicant;
(e) the Applicant had sped consistently throughout the journey – it was not an accident;
(f) the Applicant had probably tampered with the speed limiter so that he wasn’t prevented from speeding.
16. The Applicant met with the Respondent’s State Manager and Administration Manager again on 24 June 2009. At that meeting, the Respondent informed the Applicant that:
(a) the data the Respondent had collected confirmed that the Applicant had been speeding on 19 June 2009;
(b) given the high speeds at which the Applicant was travelling, the Respondent had no alternative than to dismiss the Applicant;
(c) the Applicant’s employment was to be terminated; and
(d) the Applicant would receive his final payment within 24 hours.
17. During the meeting, the Applicant:
(a) stated that he expected a warning for his conduct;
(b) stated that he understood the Respondent’s reasons for terminating his employment;
(c) was provided with a copy of the document titled “File Note: Situation with Rand Employee – Glen Gervasoni”, which the Applicant signed to acknowledge receipt; and
(d) was provided with a letter of termination dated 24 June 2009, which the Applicant signed to acknowledge receipt.
18. The Applicant’s employment terminated at 3:00pm on 24 June 2009.
Surveillance Devices Act 1999 (Victoria)
19. The Respondent denies that the CoolTrax system is a “tracking device” under the Surveillance Devices Act 1999 (Vic) (“the SD Act”).
20. The SD Act defines a “tracking device” as “an electronic device the primary purpose of which is to determine the geographical location of a person or an object” (our emphasis).
21. Although the CoolTrax system is capable of reporting the geographical position of the trailer and calculating the speed at which it is moving, this is not its primary purpose.
22. The primary purpose of the CoolTrax system is to remotely monitor the environment in which cold-stored goods are transported. The CoolTrax system includes a monitoring device that is fitted to a refrigerated trailer that is capable of detecting:
(a) significant changes in internal trailer temperature;
(b) loss of pressure in the compressor; and
(c) various other indicators of plant or equipment failure.
23. Given the CoolTrax system is not a “tracking device”, the Respondent is not obliged to provide drivers with notice that the CoolTrax system was fitted to the trailers.
Admissibility of evidence
24. Even if the CoolTrax system is a “tracking device” under the SD Act, which the Respondent denies, and even if the Respondent was obliged to inform its drivers that the CoolTrax system had been installed, which it denies, the Respondent submits that the information the Respondent derived from the CoolTrax system should be accepted because:
(a) section 110(1)(b) of the Workplace Relations Act 1996 (Cth) (“the WR Act”) states that the Commission is “not bound by any rules of evidence, but may inform itself on any matter in such manner as it considers just”;
(b) it is a reliable record of critical matters of fact;
(c) it was a significant factor in the Respondent’s deliberation about the Applicant’s conduct and its response to that conduct;
(d) the evidence from the CoolTrax system:
(i) has probative value: section 138(3)(a) of the Evidence Act 1995 (Cth) (“the Evidence Act”);
(ii) is important to the proceedings: section 138(3)(b) of the Evidence Act; and
(iii) was not obtained by the Respondent improperly or in consequence of an impropriety, despite the fact it was gained without the Applicant’s knowledge: section 138(3)(c)-(g) of the Evidence Act and Ponzio v Multiplex [2005] FCA 1410 at [97].
(e) the Federal Court of Australia has admitted evidence obtained from a “listening device” pursuant to the SD Act, in circumstances where the “recording of the conversations may be seen by reasonable observers as devious and underhanded” but the evidence was not “obtained improperly or in consequence of an impropriety”; Ponzio v Multiplex [2005] FCA 1410.
25. The Commission should rely upon the approach adopted by the Full Bench in Australia Meat Holdings Pty Ltd v McLauchlan (No. 40215 of 1998), namely to find the Respondent’s findings, formed from its investigation, as relevant to the Commission's determination of the issues before it because:
(a) the Respondent conducted a full and extensive investigation into all of the relevant matters as was reasonable in the circumstances;
(b) the Respondent gave the Applicant every reasonable opportunity to respond to the allegation against him; and
(c) the Respondent’s findings were based upon reasonable grounds.
Dismissal not unfair
Valid reason – section 652(3)(a)
26. The Respondent had a valid reason for the termination of the Applicant’s employment, namely:
(a) the Applicant sped in breach of his contractual obligations, his health and safety obligations, and in breach of road safety laws;
(b) the Applicant disabled the speed limiter on his truck in breach of his contract, occupational health and safety, and traffic laws; and
(c) the Applicant lied about speeding when questioned.
27. The Respondent relied on the objective, reliable information it obtained from the CoolTrax system, its supplier, and the truck service and repair agents in relation to the accuracy of the speed information and the functionality of the speed limiter device. The information showed that on 19 June 2009 the Applicant had travelled at:
(a) more than 110km/hr on 24 occasions from Derrimut to Tarcutta;
(b) an overall average speed of 94.65km/hr from Derrimut to Tarcutta;
(c) an overall average highway speed of 108km/hr from Clonbine on the Hume Hwy to Tarcutta;
(d) a maximum speed of 129.6km/kr at Kyeamba, New South Wales;
and he could not have done so without disabling the speed limiter.
28. The Applicant’s conduct constituted serious misconduct.
29. The Respondent’s reaction to the Applicant’s conduct is consistent with its understanding of the Chain of Responsibility legislation.
30. The Commission should rely upon the rationale adopted by the Full Bench in Brown v NQX Freight System (C2001/5718) at [9]-[10], namely:
(a) to acknowledge, with respect to a valid reason, that there is a need for an employer to establish and retain discipline and observance of lawful requirements or directions in order for the relationship of trust and confidence to exist and continue between the parties; and
(b) to be concerned not to jeopardise the safe and efficient operational requirements and reputation of the employer’s business and to provide employees and management with as safe a working environment as possible, in accordance with company procedures, rules or policies, and occupational, health and safety legislation – the importance of which, becomes even more highlighted in industries such as road transport.
31. The Commission should reach similar conclusions as those reached by the Full Bench of the Western Australian Industrial Relations Commission in The Constructions, Forestry, Mining and Energy Union of Workers v BHP Billiton Iron Ore [2004] WAIRComm 11180 (2 October 2003) at paragraphs 154-156, in relation to the unsafe driving practices of a train driver, namely:
(a) that the dismissal was justified and not unfair because, inter alia, the driver of a fully laden ore locomotive employed by the respondent is in a particular position of trust and responsibility;
(b) this is obvious because he is charged, in his employment, and under the regulations and the rules with the control of, the driving of, and the responsibility for his locomotives, his train and the safe handling of all of them. That is the trust reposed in him by his employer. He is in charge of a fully laden iron ore train weighing in all over 28,000 tonnes. That is an occupation requiring the exercise of responsibility of a high order. Further, a person cannot drive the train unless his is properly accredited and qualified pursuant to regulations and the rules;
(c) the harm likely to be caused to people, equipment and property if such a huge and heavy aggregation of machinery such as a train, loaded or unloaded, becomes unsafe, is entirely obvious;
(d) a driver must exercise, as part of his contract of employment, the utmost care to say nothing of what the regulations and rules require;
(e) even without the regulations and rules it was open to find that the employee’s acts and omissions constituted a breach of his obligations under his contract of employment, and serious negligence in control of the train and its safe working, on all of the evidence.
Reason given – section 652(3)(b)
32. The Applicant was notified of the reason for his dismissal.
Opportunity to respond – section 652(3)(c)
33. The Applicant was offered an opportunity to respond to the misconduct allegations he faced.”
[12] Evidence was provided for the Applicant by the Applicant.
[13] Evidence on the part of the Respondent was provided by:
1. Mr Michael Amery White, is the Managing Director of CoolTrax Asia Pacific Pty Ltd, trading as CoolTrax;
2. Mr David Roy Cartan, the Respondent’s Victorian State Manager;
3. Mr Kevin Thomas Forte, the Administration Manager of the Respondent’s Victorian operations; and
4. Mr Shaun Peter Coniglio, the Respondent’s National Operations Manager.
[14] On the primary point of the inadmissibility of the evidence because, as asserted by the Applicant, that the CoolTrax system is a tracking device which is used for the primary purpose to determine the geographical location of a person or an object, the Tribunal, having considered the material available to it, would determine that on this primary point the CoolTrax system is not a tracking device as defined under the Surveillance Devices Act 1999. The primary purpose of the CoolTrax system is not to determine the geographical location of a person or an object. However, if it can determine the geographical location of a person or an object this is purely incidental to its primary purpose. The CoolTrax system’s primary purpose is to remotely monitor the environment in which cold stored goods are transported. The CoolTrax system includes a monitoring device fitted to a refrigerated trailer that is capable of detecting (a) significant changes in internal trailer temperature, (b) loss of pressure in the compressor and (c) various other indicators such as plant or equipment failure.
[15] The Tribunal puts the CoolTrax system in the same category a GPS that a lot of motorists now use in their vehicles. The primary purpose of the GPS is to allow a person to travel from one point to another with the aid of being directed by the GPS rather than relying on, what is commonly called, a Melways map that is used in the state of Victoria. However, in using a GPS in a vehicle a number of things can be identified, such as the speed of the vehicle and the location of speed cameras as well as the time it takes to trave from point A to point B, are simply incidental to the primary purpose of a GPS.
[16] Having determined that the CoolTrax system is not a tracking device as defeined under the Surveillance Devices Act 1999, the information that has been gleaned from the CoolTrax system as part of this matter will be deemed to be admissible as evidence by the Tribunal.
[17] Now dealing with the primary reason for termination, that is the alleged speeding by the Applicant, the Applicant does acknowledge that he was speeding but not to the extent alleged by the Respondent.
[18] The Applicant states that he was driving a speed limited truck (approximately 100 kph) and it was acceptable and common practice to roll the trucks off the hills. The Applicant refutes the Respondent’s assertion that the speed limited device was most probably disabled. This is in contrast to the Respondent’s argument that on 19 June 2009 the Applicant had on at least 24 occasions travelled in excess of 110 kph from Derrimut to Tarcutta, an overall average speed of 94.65 kph, with an overall average highway speed of 108 kph from Conbine, on the Hume Hwy to Tarcutta. At one point the Respondent asserts that there was a maximum speed of 129.6 kph at Kyeamba, NSW.
[19] The Applicant’s argument has consistently been that the speeds identified in the GPS are not accurate and there are deficiencies in the data that has been printed that the Respondent had relied upon to terminate the Applicant’s services. The data that was provided is attached to the statement of Mr Cartan and is marked DRC1. Attached to that is a documented entitled CoolTrax Mapping. It identifies that on 19 June 2009 at 5.02pm, the vehicle was stationary at 44 Little Boundary Road, Laverton North, Victoria. Further down states that at 5.17pm the vehicle was at 22 Swan Dr, Derrimut; however, there is well over an hour for the next identification, at 7.02pm at 19 Swan Dr, Derrimut and the vehicle is doing a speed of 18.1kph.
[20] The Tribunal has been advised that the depot address of the Respondent is 16 Swan Dr, Derrimut not 44 Little Boundary Road, Laverton North where there is a 0 kph speed identified on the documentation.
[21] The Respondent was unable to explain why there is a difference of over one hour on 19 June between 5.17pm and 7.02pm when at 5.17pm the vehicle was at 22 Swan Dr, Derrimut and at 7.02pm it was at 19 Swan Dr, Derrimut.
[22] Further, the document states that at 10.58pm the vehicle was at 85 Swift St, Holbrook NSW and travelling a speed of 114.6 kph. Swift St, Holbrook is a street in between Steel St and Bath St, Holbrook, two suburban streets away but running parallel to Albury St, which is part of the Hume Hwy. 85 Swift St, Holbrook is a domestic house. Swift St, Holbrook has approximately 14 houses that occupy either side of Swift St and yet the GPS identifies that the Applicant was doing 114.6 kph in a domestic street.
[23] Further, at 11.39pm the CoolTrax system has the vehicle at 4 College St, Tarcutta, NSW travelling at a speed of 123.7 kph. College St is off the Hume Hwy. To get to College St from the Hume Hwy, one must do a sharp left hand turn onto College St which then runs off on an angle with Myrtle St and Gresham St, running into College St. It would appear that College St is a street that covers no more than two domestic wide streets. At the end of the College St there is a sharp right hand turn into Gresham St.
[24] In viewing the Google map the Tribunal is convinced it is absolutely absurd to assert that on such a street a vehicle weighing approximately 40 tonnes (as described by the Respondent) would be travelling at a speed of 123.7 kph. And then, within a matter of minutes, appear back on the Hume Hwy at Tarcutta doing a speed of 25.7 kph.
[25] As well as the Applicant raising the discrepancies in the speed limits asserting that the CoolTrax system was inaccurate, the Applicant also asserts that the bearing as identified under the heading of “Bearing” is also, in a number of areas, inaccurate. For instance, the vehicle, according to the CoolTrax system, is travelling through Tallarook in a west south west or east south east direction
[26] The Tribunal, having considered all the material and the evidence provided by the Applicant and the Respondent, is not satisfied, given the discrepancies in the directions that the vehicle was travelling, the speed limits, the beginning of the Applicant’s trip where there is a lost one and three quarter hours that cannot be explained as well as the two obvious errors that relate to Swift St, Holbrook, NSW and College St, Tarcutta, NSW, that the Respondent had reasonable grounds to terminate the services of the Applicant.
[27] Rather than relying on information as provided for by Adtrans, which is an authorised Adecco dealer who service Adecco trucks, had the Respondent done a proper analysis themselves they should have come to the conclusion that they could not solely rely upon the information provided by the CoolTrax system. Even Adtrans acknowledge that the fuse panel, in which it is alleged that the Applicant removed the fuse that restricted the vehicle to 100kph had not been tampered with.
[28] The Tribunal is therefore of the view that the Applicant should have been given the benefit of the doubt, given that the information provided by the CoolTrax system is not totally reliable.
[29] The Tribunal is also satisfied that the Respondent is not able to rely upon a previous incident where it is alleged that the Applicant removed a fuse to disarm the 100 kph limiter, given that in that instance the Applicant stated that a fuse had blown and he was not in a position to replace that fuse given that it was night time and he was not able to see the fuse box correctly until he was able to get under sufficient street lighting, and the Respondent could not establish that the fuse was deliberately disengaged.
[30] The Tribunal therefore determines that there was not a valid reason for the termination of the Applicant in the matter. Although the Applicant admitted to speeding, that speeding was on the basis that the Applicant would disengage the gears, not tamper with speed limiter and simply roll down, what some may term as angels’ gear (neutral) on hills that allowed him to do it, consistent with what would appear to be a common practice.
[31] The Tribunal rejects the Applicant’s claim that there had been a breach of section 659 of the Act. No evidence has been provided that substantiates such a claim.
Remedy
[32] The Applicant does not seek reinstatement in the matter but seeks compensation.
[33] In determining remedy Mr Dircks states that the employment would have continued for a further 12 months, believing that the Applicant would have earned $75,598.64. If that amount is divided by 52 weeks the weekly amount is $1,453.82.
[34] In determining compensation, the Tribunal determines that the sum of 22 weeks, the period from the date the termination took effect to the date the matter was first dealt with in arbitration, is reasonable. This equates to the sum of $31,984.04 less $2500 earned as a tattoo artist.
[35] Therefore the Tribunal determines that the sum of $29,484.04 be paid to the Applicant no later than two weeks from the date of this Decision and accompanying Order.
COMMISSIONER
1 “ Law of Employment, Macken O’Grady Sappideen Warburton [eds], Lawbook Company 2002 [5th ed] at 219
2 Federal Supply and Cold Storage Co of South Africa v Ahgehrn (1910) 103 LT 150
3 Lewin C in Candido v Hi Fi Supermarket Pty Ltd PR935645”
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