Greg McIntyre v Qube Logistics (SA) Pty Ltd

[2017] FWC 3667

[2017] FWC 3667

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Greg McIntyre
v
Qube Logistics (SA) Pty Ltd
(U2017/3407)

COMMISSIONER PLATT ADELAIDE, 11 JULY 2017

Application for an unfair dismissal remedy – valid reason – dismissal not harsh, unjust or unreasonable – application dismissed.

Summary

[1] Mr McIntyre lodged an application on 29 March 2017 pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer, Qube Logistics (SA) Pty Ltd (Qube).

[2] On 9 May 2017, directions were issued to the parties for the preparation of submissions and statements and the matter was listed for hearing on 6 July 2017 in Mount Gambier. Both parties submitted material in accordance with the directions.

[3] At the hearing on 6 July 2017, Mr Edward Lawrie of the Transport Workers’ Union represented Mr McIntyre and Mr Anthony Gluyas, General Manager, represented Qube.

[4] On 6 July 2017, I read my decision on transcript and dismissed the application. Below are the reasons for my decision.

[5] Mr McIntyre commenced his employment with Qube on a fulltime basis as a Truck Driver on 24 July 1996, at the time of his dismissal he was a fulltime Professional Operator (Truck Driver) based in regional South Australia.

[6] Mr McIntyre’s employment was terminated on 10 March 2017.

[7] It is not in dispute that Mr McIntyre is a person who is protected from unfair dismissal.

[8] Mr McIntyre submitted a statement and gave evidence on his own behalf. 1 Qube submitted statements from:2

● Ms Emily Link - General Manager HR;
● Mr Benjamin Harris - Maintenance and Purchasing Manager; and
● Mr Tom Trader - Hynam Depot Logistics Supervisor.

[9] The fact that Mr McIntyre drove a B-Triple on a road that it was not permitted to travel on was not in dispute.

[10] The issue for determination in this matter is whether Qube’s decision to dismiss Mr McIntyre was harsh, unjust or unreasonable. The witness evidence relevant to this issue is summarised below.

Greg McIntyre

[11] On 8 February 2017 Mr McIntyre reported, to Mr Trader, that there was a crack in his rear tipper that he was towing.

[12] Mr McIntyre was instructed to swap both trailers at Bordertown, but he indicated that he wanted to bring the A trailer back.

[13] Upon arriving at the Bordertown depot, at approximately 3:30am on 11 February 2017, Mr McIntyre realised that the trailer to go to Hynam would require reconfiguration if he was to bring the A trailer back. By this stage he had already worked for 10.5 hours and only had 1.5 hours remaining of driving/working time.

[14] Instead of decoupling both trailers, he hooked up both trailers to his existing A trailer which he believes saved him 45 minutes.

[15] His decision was also explained by him being fatigued, needing to get home to take medication and that he did not have any spare/clean bedding to stay the night if he exceeded his maximum driving hours.

[16] After hooking up both trailers, Mr McIntyre then left Bordertown at 4:33am and arrived at Hynam at 5:42am. The vehicle was configured as a B-Triple.

[17] During this trip, Mr McIntyre accepts the accuracy of Qube’s data report which shows that Mr McIntyre exceeded the 90km/h speed limit required for B-Triple combinations. 3

[18] Mr McIntyre was unaware that the road he travelled on was only gazetted for a single combination (where truck and trailer does not exceed 19m). Mr McIntyre gave evidence that his B-Triple combination was approximately 33m in length.

[19] Mr McIntyre was contrite and remorseful about the incident.

Emily Link

[20] Ms Link gave evidence that on or around 13 February 2017 she received a telephone call from Mr Alderson. Mr Alderson informed her of the incident that had occurred and indicated that an investigation had commenced.

[21] Ms Link instructed Mr Alderson to prepare a show cause letter, the letter was provided to her to which she made some amendments to and then given to Mr McIntyre by Mr Alderson.

[22] On 27 February 2017, Ms Link received, via email, Mr McIntyre’s response to the show cause letter.

[23] On 7 March 2017, Ms Link held a telephone conference with Mr McIntyre together with his support persons. During the telephone conference, Mr McIntyre raised concerns about the historical non-conformance notices referred to in the show cause letter dated 24 February 2017. Ms Link advised that the alleged prior issues with performance as stated in the letter should not have been inserted.

[24] Ms Link gave evidence that herself and Mr Dan Coulton were the ultimate decision makers who, after considering Mr McIntyre’s age, length of service, the severity of the incident, the kind of work he performed and his performance to date (noting that the alleged non-conformance issues in the show cause letter dated 24 February 2017 were not taken into consideration), decided to terminate his employment for serious misconduct.

[25] Ms Link gave evidence that she did not consider the conduct to be an isolated incident and that she did not consider alternatives to dismissal, such as a final warning, due to the severity of the conduct.

[26] After making this decision, Ms Link prepared the termination letter dated 10 March 2017, a statement of service and approved the final payment calculations.

[27] Mr Alderson, the South Australian Logistics Manager, signed the dismissal letter dated 10 March 2017 4 which was emailed and posted to Mr McIntyre.

Benjamin Harris

[28] Mr Harris is employed by Qube as Maintenance and Purchasing Manager. Mr Harris’ responsibilities include general and national purchasing, dealing with accounting issues and assisting with invoice enquiries as well as dealing with OHS issues, transport planning and ensuring compliance with a range of laws.

[29] On 13 February 2017, Ms Link and Mr Alderson requested Mr Harris to:

● Review the depot camera footage;
● Review the MTData to see who was logged into the truck;
● Review driver work diary pages for any fatigue breach;
● Review off route driven with combination for legalities; and
● To simulate the time to un-hook a trailer combination and re-hook a trailer combination.

[30] Mr Harris gave evidence that a gazette is distributed to each driver. The gazette is contained in a folder and is kept in every prime mover, either under the passenger seat or on a shelf in the cabin.

[31] He gave evidence that each morning the driver must perform a check which involves ensuring the truck is registered, permits are complied with etc.

[32] He gave evidence that the limit for a B-Triple combination is 90km/h and further that Mr McIntyre had committed a breach by driving a non-approved vehicle on a non-approved road.

[33] He could not identify the penalty that would be incurred by Mr McIntyre and Qube, however, he referred to the incident as a significant breach.

Tom Trader

[34] Mr Trader is employed by Qube as the Hynam Depot Logistics Supervisor.

[35] On 8 February 2017, Mr McIntyre reported to him that the top side of the rear tipper that he was towing had developed a crack. It was agreed that Mr McIntyre would leave the A and B trailers at Bordertown and replace them with the A and B trailers which had been configured in the yard.

[36] Mr McIntyre indicated that he would prefer to keep his lead trailer, to which Mr Trader replied that he didn’t mind as long as there was a set of trailers for the “kill” on Monday. Mr Trader left the decision as to which 2 trailers he would transport to Mr McIntyre’s discretion.

[37] On Saturday 11 February 2017, he received a call from Brent Gibbs who advised that there was an A trailer missing.

Findings of Fact

[38] No issues of credit arise from the witness evidence.

[39] The factual circumstance that led to the dismissal is not in dispute.

[40] I find that Mr McIntyre drove a B-Triple vehicle for approximately 94 kilometres over a period of one hour and 8 minutes between Bordertown and Hynam on a route that was not approved for such vehicles.

[41] During this period, the vehicle driven by Mr McIntyre regularly exceeded the 90km/h speed limit for B-Triple vehicles over a period of 50 minutes as recorded by the vehicle monitoring system.

[42] From a risk perspective, I note that the road was not an approved route for the smaller B-Double vehicles, the travel occurred at night in a country location. No incident occurred and no complaint was received.

[43] Mr McIntyre accepts that he made a deliberate decision to tow the third trailer with the knowledge that the vehicle in that configuration was not permitted to drive on that route.

[44] Mr McIntyre contended that his error of judgement was explained by his desire;

● to the return a specific trailer to Hynam;
● not to delay his journey by spending additional time rearranging the trailer configuration; and
● to conclude his driving before he exceeded the statutory limit which would have required him to take a rest break, which was amplified by the fact he did not have his medication on board or clean bedding which would allow him to sleep in the vehicle, and that he was about to commence annual leave.

[45] I find that Mr Trader instructed Mr McIntyre to drop the A and B trailers at Bordertown and collect preconfigured A and B trailers to take to Hynam. I accept that this task would have taken 10-15 minutes and not put any time pressure on Mr McIntyre. I find that it was a decision by Mr McIntyre to depart from this approach and caused the time pressure relied upon to support his decision to configure the vehicle as a B-Triple. The fact that Mr Trader allowed Mr McIntyre discretion to reconfigure the load from his instructions does not adequately explain the decision of Mr McIntyre to knowingly drive a B-Triple on a non-approved route. I find that the time pressure relied upon by Mr McIntyre to justify his decision to configure the vehicle was of his own making.

[46] Mr McIntyre accepts he exceeded the 90km/h speed limit for B-Triple vehicles on the non-approved route. Mr McIntyre states he was unaware of this limit. This is difficult to accept considering Mr McIntyre has two decades of experience as a heavy vehicle driver. It appears to me that Mr McIntyre was driving at that speed as a result of his desire to arrive home at an earlier time. I find that the excessive speed compounds the risk presented by diving the B-Triple on a non-approved route.

[47] Whilst I find that Mr McIntyre had used that route for B-Double vehicles on a number of previous occasions, I accept his explanation that he was ignorant of the fact that the route was not approved for B-Double vehicles.

[48] I find that the conduct of Mr McIntyre in driving a B-Triple vehicle on a non-approved route at an excessive speed was a significant breach of the Heavy Vehicle National Law and the obligations of his contract of employment.

[49] I find that the conduct of Mr McIntyre risked the safety of himself and other road users, particularly in circumstances where the road design on the route was such that it could not accommodate the length and movement of the B-Triple vehicle such that it may have strayed onto the wrong side of the road, where some corners and the road shoulder width may not have accommodated the vehicle, and the potential for other road users to be impacted by the presence of such a vehicle which was 14 metres greater than the length of a single combination which the route is approved for.

[50] In addition, it is possible that road infrastructure may have been damaged by Mr McIntyre’s conduct.

[51] I find that Mr McIntyre’s conduct put Qube’s National Heavy Vehicle Regulator compliance at risk.

[52] I find that Mr McIntyre’s conduct was a valid reason to terminate his employment.

[53] There was no issue taken with the procedure adopted in the investigation and disciplinary proceedings.

[54] The only issue is whether the dismissal was harsh, unjust or unreasonable.

[55] Mr McIntyre asked Qube to consider his age, length of service, unblemished work history, the reasons why he configured the vehicle as he did and his desire to return to Hynam before his daily hours limit expired. Qube considered these matters but believed that the breach was so serious that it terminated his employment.

[56] At the hearing, Mr McIntyre asked me to further consider the difficulty he would have in seeking alternative employment. I note that Mr McIntyre has secured employment as a heavy vehicle driver but not at the frequency and thus not at the same remuneration that he had with Qube.

Was the dismissal harsh unjust or unreasonable?

[57] Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 FWC considers relevant.”

Valid reason - s.387(a)

[58] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd⁵which requires the reason for termination to be “sound, defensible or well founded”.

[59] In light of my findings of fact, I find that Mr McIntyre’s conduct was a valid reason to terminate his employment.

Notification of valid reason - s.387(b)

[60] There is no dispute that Mr McIntyre was notified of the reasons for his dismissal.

Opportunity to respond - s.387(c)

[61] There is no dispute that Mr McIntyre was given the opportunity to respond.

Any unreasonable refusal by the employer to allow Mr McIntyre to have a support person present to assist at any discussions relating to dismissal - s.387(d)

[62] There is no dispute that Mr McIntyre had access to a support person.

Warnings relative to unsatisfactory performance - s.387(e)

[63] Mr McIntyre was dismissed because of his conduct not his on-going performance, which had not been subject to adverse comment.

Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)

[64] Qube is a large employer with dedicated HR and IR support.

Other matters considered relevant - s.387(h)

[65] Whilst the matter relates to a single incident it is an extremely serious one which could have resulted in a significant accident.

[66] I accept Mr McIntyre has a long unblemished work history and that he has suffered a loss of remuneration and job security as a result of the dismissal.

[67] I accept that Mr McIntyre genuinely expressed remorse for his actions during the investigation.

[68] The fact that no person reported being impacted or made a complaint does not reduce the significant risk Mr McIntyre’s actions presented to road users and transport infrastructure.

[69] I note that Mr McIntyre has secured employment as a heavy vehicle driver but not at the same frequency and thus not at the same remuneration that he had with Qube.

[70] Having considered each of the factors detailed in s.387 of the Act, I am not persuaded that the termination of Mr McIntyre’s employment was not harsh, unjust or unreasonable and as such the application has been dismissed.

[71] An Order⁶ reflecting this decision will be issued.

COMMISSIONER

Appearances:

Mr E.Lawrie of the Transport Workers’ Union on behalf of the Applicant.

Mr A.Gluyas on behalf of the Respondent.

Hearing details:

2017.

Mount Gambier:

6 July.

 1   Exhibit M1

 2   Exhibits R1, R2, R3, R4

 3   See Annexure TT6 to Exhibit R4

 4   See Annexure EKL-3 to Exhibit R1

5 (1995) 62 IR 371 at 373

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