Jason Hutton v ACFS Port Logistics Pty Limited

[2020] FWC 4693

[2020] FWC 4693

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Hutton
v
ACFS Port Logistics Pty Limited
(U2020/7539)

DEPUTY PRESIDENT BEAUMONT PERTH, 25 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] Mr Hutton had been driving trucks for ACFS Port Logistics Pty Limited (the Respondent) for some seven months. He had 18 years’ experience behind the wheel. Ten of those were in Australia and the remainder, in New Zealand. On 8 May 2020, whilst driving the Respondent’s prime mover (truck) he collided with an empty container. He said he did so at a very low speed, but the right side of the truck was impacted. He took accountability for the incident, informing his employer that he lost situational awareness. The damage bill was $13,600.00 and the truck, by all accounts, was out of operation for approximately 59 days.

[2] At the time of the incident, Mr Hutton was reversing the truck into a dock at a client’s site. Having hit the container, he stopped, ensured the area was safe, took photos of the truck, informed the Respondent’s Controller, Mr Steve Gallagher, about the incident, completed the job, returned the truck to the workshop and completed an incident report form. That form was handed to a Mr Anthony Hughes, the Respondent’s Transport and Depot Manager. It was accompanied with an explanation of the incident and again, Mr Hutton’s acceptance of responsibility for it.

[3] Following an investigation into the incident, the receipt of a damage bill and the provision of a ‘show cause letter’ and a discussion of the same, the Respondent dismissed Mr Hutton with two weeks’ pay in lieu of notice. Mr Hutton has applied to the Commission for an unfair dismissal remedy. He seeks reinstatement to his former position and subsequent orders restoring continuity of service and lost pay.

[4] I have taken into account each of the matters specified in s 387 of the Fair Work Act 2009 (Cth) (the Act) and I am satisfied that based on Mr Hutton’s conduct, the Respondent had a valid reason for dismissing Mr Hutton. Mr Hutton’s dismissal was neither unjust, unreasonable nor harsh. Therefore, the application is dismissed. My reasons for dismissing the application are as follows.

Background

[5] Mr Hutton commenced work on 7 October 2019. He was employed under the TWU-ACFS Fair Work Agreement 2017, 1 at a classification of Grade 6. Mr Hutton had participated in various competency assessments on commencement, including the ‘ACFS Port Logistics Heavy Vehicle Operator Competency Assessment’, which he sat on 9 October 2019. Included in that assessment were traffic skills, one of which was ‘reverses correctly’. This was checked as competent.

[6] On 8 May 2020, he was asked by Mr Gallagher to pick up a ‘sliding A skel trailer’ which was carrying an empty 20ft container from the worksite of a client. Mr Hutton was then directed to proceed to another client to pick up a 40ft skel trailer carrying an empty 40ft container. Thereafter, he was to return to Fremantle and ‘dehire’ both containers at a container park. 2

[7] Mr Hutton stated that he drove one of the Respondent’s trucks and collected the trailer. At approximately 1210hrs, he arrived at CTI Logistics where he proceeded to Dock 16A, which was where the designated empty container was. 3 He parked parallel to both the Dock and the trailer (which was holding the empty container).4 Mr Hutton said that he got out of the truck and checked that the container was empty, raised the trailer to the normal ride height and then removed the chock from the rear axle.5

[8] Upon entering the truck again, Mr Hutton said he looked around to see whether there was any oncoming traffic, and if there was anything around. 6 Having assessed that it was clear to proceed, he reversed the truck on an angle to the Dock as he normally would.7 It was at this point, he said, that he noticed another container was on the ground opposite the Dock.8 According to Mr Hutton, this container was ‘located probably a bit closer than normal, but I decided that I had enough room to manoeuvre to back onto the trailer without hitting it’.9

[9] At hearing, Mr Hutton gave evidence that he looked around the area when he had disembarked from the truck and then again when he entered the vehicle.

[10] As he was backing his truck and trailer on his offside, Mr Hutton said he was concentrating on the back-left hand corner of his trailer – with a view of lining it up with the trailer on the dock. 10 Mr Hutton gave evidence that he was proceeding at a slow pace of 2-4km/hr in reverse and was following the site rule of a one-way traffic area.11

[11] With the belief that he had enough space between the truck and the container on the ground, he continued to reverse towards the trailer on the Dock. 12 However, the container on the ground was closer than Mr Hutton initially believed, and because he was concentrating on where his trailer was going whilst reversing, he said he lost his situational awareness of where the container on the ground was.13 Mr Hutton said that the right side of the truck hit the container. At hearing, Mr Hutton acknowledged that he did not disagree that the damage to the truck was substantial.

[12] As part of his evidence Mr Hutton sought to rely on a site map of the client’s worksite viewed from above. Upon that map, he had interposed some shaded rectangular shapes which were said to represent additional containers or stacks that were present on 8 May 2020. One of the shapes was said to be the ‘offending’ container. Mr Hutton gave evidence that the interposed shapes were not to scale, and when asked, he agreed that they were completely disproportionate. The Respondent produced a site map of A3 size. The rectangular shapes that Mr Hutton had interposed on his map were missing. It appeared that some containers or stacks were not permanently placed in the area but were there for a temporary period.

[13] In cross examination, Mr Hutton considered it correct to say that when reversing a double articulated vehicle, it was more difficult, and one required more awareness, and that it was important to be aware of surroundings. When it was emphasised that the manoeuvre of an articulated vehicle required one to have complete awareness of surroundings, such as – objects and personnel, Mr Hutton said that this statement was also correct. However, when asked if he had been careless, he said that he had not. When asked if he had exercised poor judgment, he said that he had not. Expanding on this, he conceded that his judgment was not spot on, but was not poor. When asked if his initial assessment of the situation was careless, Mr Hutton stated that the assessment was wrong.

[14] When confronted with the scenario of – what if the container had been a ‘spotter’ (i.e. a person), Mr Hutton said that the spotter would have walked away and could talk – that is the spotter had the ability to communicate.

[15] Counsel for the Respondent proposed to Mr Hutton that he could have looked intermittently left and right whilst reversing, and the container would have been obvious to him – he could have observed that he was slowly encroaching upon the trailer. When the statement was made that Mr Hutton didn’t pay or have sufficient regard to his mirrors, travelling at the speed he was, because if he had he would not have hit the container, Mr Hutton stated ‘potentially, yes’.

[16] Mr Hutton stated that, immediately following the accident, he stopped what he was doing, got out of the truck and made sure the area was safe. He then took photos of the truck and informed Mr Gallagher of what had happened, and the amount of damage the truck sustained. 14 While Mr Hutton took photos of the damage to the truck, when questioned at hearing by Counsel for the Respondent about any other photos taken, he conceded he did not take photos of the relevant container (that had been hit), or photos that showed the proximity of the structures between which Mr Hutton was manoeuvring.

[17] On arriving back to the Respondent’s depot, and having disconnected the trailers and parked up the truck in the workshop, Mr Hutton filled in an incident report form, and then informed Mr Hughes of the incident and how it occurred. Mr Hutton said that he informed Mr Hughes that if he found himself in a similar situation again, he would firstly get a spotter to observe his manoeuvre, detach the trailer he was pulling, back the truck onto the trailer he was collecting from that site and then pick up the original trailer to make up the ‘B double’. 15 Mr Hutton said that Mr Hughes acknowledged receipt of the form, and told him that he was busy so he would look at the incident report on Monday. Mr Hutton said that he was advised to still attend work on the Monday.16 Mr Hutton gave evidence that he presented to work on the Monday and the incident was not mentioned.17 He stated that it was not until 20 May 2020 that he was instructed to attend a meeting at the Respondent’s depot – and advised he could bring a support person to the meeting, which he did.18

[18] Mr Hughes confirmed that when Mr Hutton presented to the depot and provided him with the incident form, they had a discussion about the collision. Mr Hughes denied having informed Mr Hutton he was too busy to look at the incident report form. His evidence was to the effect that he would need to seek direction from management.

[19] At the meeting on 20 May 2020, Mr Hutton was provided with a ‘Show Cause’ letter. 19 He was then informed that he was required to attend a meeting on 22 May 2020 to provide reasons why his employment should not be terminated.20 Mr Hutton was advised that he was to go home and that he would not be required to work in the interim.21 Mr Hughes gave evidence that Mr Hutton was instructed not to attend work so as to enable him to prepare for the Show Cause meeting.

[20] Mr Hutton stated that because the subject line of the Show Cause letter read ‘Show Cause – Notice of Intention to Terminate Employment’, this indicated to him that the Respondent had already decided to terminate his employment without hearing his version of events. 22 Further, the letter categorised Mr Hutton’s conduct as ‘unacceptable conduct and unsatisfactory performance’ – one month earlier, Mr Hutton said, he had passed his probationary period with no performance issues raised.

[21] At the meeting on 22 May 2020, Mr Hutton provided a written response to the Show Cause letter and provided verbal responses to questions asked of him. In his evidence, Mr Hutton reports having informed Mr Medina, the Respondent’s Senior HR Advisor, that he had been to the client’s site previously, but had not been there to make up a ‘B double’. In his evidence at hearing, Mr Hutton conceded that the statement was not correct and he had done this previously (presumedly the making up of the ‘B-double’).

[22] In cross examination, Mr Hutton was asked a series of questions about what occurred after the incident. When Mr Hutton was asked whether the Respondent wanted to hear his version of events, Mr Hutton said that this was correct. When asked if he was given the opportunity to respond to the allegations, again Mr Hutton stated this was correct. When asked if he conceded it was his fault (with respect to the incident) and he lost situational awareness, again Mr Hutton stated this was correct. When stated that Mr Hutton did not pay enough attention to what he was doing – Mr Hutton replied - no that is not correct. Mr Hutton said it was correct to say that there was a difference between losing situational awareness and not paying attention.

[23] Mr Hughes stated that he had reviewed the site or site map, where the incident occurred, around 18 May 2020. When asked why it had taken so long, Mr Hughes explained he had other incidents he was dealing with at the time.

[24] When it was proposed to Mr Hughes that initially he did not view the incident as particularly serious, Mr Hughes responded to the effect that it can be the case that when there is damage to the vehicle, until you know all the things one hundred percent, the severity of the incident is difficult to ascertain. Mr Hughes said that this would be different if a truck rolls over on a public road – for example. When again asked that, as of 8 May 2020, he did not view the incident particularly seriously – Mr Hughes stated that at that point in time ‘no’ he did not.

[25] Mr Hughes was asked what changed his view regarding the seriousness of the incident. He explained that it was his conversation with Mr Medina and the State Manager. 23 He considered the State Manager’s point of view as to the severity of the damage, and nature and circumstances of the incident. Mr Hughes gave evidence that the State Manager had many more years of experience in the transport industry. When asked whether he viewed the incident as particularly serious, Mr Hughes noted that from a $13,000.00 of costs perspective, he didn’t believe that it was of high severity.

[26] Through the course of cross examination, Mr Hutton acknowledged that his judgement was wrong on two occasion, and that when reversing he was not paying attention to the right hand side of the truck.

[27] The meeting on the 22 May 2020 appeared to proceed on the basis that Mr Hutton was aware of the allegations against him, he was asked for his response and was provided with every opportunity to put his side of things across. The meeting was adjourned for a period whilst Mr Medina and Mr Hughes considered Mr Hutton’s responses. Mr Hughes gave evidence that after discussing the matter with the State Manger and Mr Medina, it was collectively decided that Mr Hutton should be dismissed.

[28] Mr Medina gave evidence that later in the day on 22 May 2020, he emailed the termination letter to Mr Hutton advising that his employment had been terminated. Mr Hutton was paid two weeks’ pay in lieu of notice.

Hutton’s submissions

[29] In brief, Mr Hutton pressed he was unfairly dismissed for several reasons. First, he disputed that the incident itself warranted the termination of his employment. Second, making the decision to terminate his employment on the basis of the incident only was, said Mr Hutton, harsh. Third, the process by which the Respondent terminated his employment was unjust and unreasonable.

Respondent’s submissions

[30] The Respondent submitted that the manner in which the task was undertaken had to be considered because it lay at the heart of the issue. The fundamental proposition advanced was that Mr Hutton had been careless. It was not the damage itself that resulted in the dismissal, although it was a relevant factor in determining whether to dismiss Mr Hutton. If it had simply been a scratch or broken mirror, the outcome may have been quite different. However, again the Respondent emphasised it was not the damage itself, as that was only one consideration. Rather, it was a consideration of whether Mr Hutton had fulfilled the duties in his employment contract. That employment contract included at cl 3.2(a), the obligation to act diligently and perform the duties associated with his position with reasonable care and utilising the appropriate skills.

Initial matters to be considered

[31] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Hutton’s application. There is no dispute between the parties concerning these matters, and I am satisfied of the following. First, the application was made within the 21 day period required by s 394(2) of the Act. Second, Mr Hutton was a person protected from unfair dismissal, as he earned less than the high income threshold (s 382). Third, Mr Hutton’s dismissal was not a case of genuine redundancy. Fourth, no question of compliance with the Small Business Fair Dismissal Code arises.

Unfair dismissal

[32] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable (s 385(b)). Conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 24

[33] The Commission must take into account the matters specified in s 387 in reaching its determination as to whether conduct is harsh, unjust or unreasonable. It is convenient to use those criteria, set out in s 387, to outline my consideration of the matter. However, before doing so, I note that s 387 contemplates that the Commission will undertake an overall assessment as to the nature of the dismissal. In so doing, the criteria in s 387 must, where relevant, be weighed up in totality.

Valid reason for the dismissal related to capacity or conduct (including its effect on the safety and welfare of other employees)

[34] While the Commission is obliged to take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct, 25 this provision should not be construed as requiring there to be a valid reason. Although, whether there is or not will have bearing on the decision reached.

[35] To explain further, ‘valid’ in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. 26 The provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly.27

[36] In the context of termination of employment related to the conduct of an employee, it is well established that the Commission must make a finding as to whether the conduct in question occurred. So much is clear from the decision of the Full Court of the Federal Court in Edwards v Giudice, 28 and numerous subsequent decisions of the Full Bench of the Commission.29

[37] It was alleged that Mr Hutton had:

a) not shown awareness and judgement that was expected of a professional ACFS Port Logistics employee;

b) caused damage to the container and significant damage to the cabin of the truck;

c) made a significant safety and operator error;

d) caused approximately $13,600.00 worth of damage.

However, the Respondent’s primary allegation of misconduct is that Mr Hutton breached his duty to exercise care and diligence in the performance of work by reversing the truck such that it hit the empty container. I am satisfied that he did breach this duty for the following reasons. However, first it must be acknowledged that Mr Hutton has, from the time of the incident, been candid as to its occurrence. He has not denied that it occurred, but notes that it was an accident and it occurred because he lost situational awareness. It is therefore not in dispute that Mr Hutton was driving the truck when it collided with the right side of the empty container. Nor is it in dispute that Mr Hutton did not do so intentionally. He did so mistakenly, having formed the impression, albeit incorrectly, that he had enough room to reverse both truck and trailer into Dock 16.

[38] The issue remains, however, that if Mr Hutton had exercised care and due diligence in his approach to the task, the way he performed the task would have been fundamentally differed.

[39] Perhaps it may have been the case that he would have still conducted two assessments – one outside the truck and one inside the truck, and incorrectly assessed the amount of space available to conduct the manoeuvre. However, the collision may still have been averted.

[40] In cross examination, it became exceedingly evident that the simplest of interventions could have prevented the incident. Mr Hutton admitted that he did not check his mirrors during the course of reversing the truck. At all times, his gaze was fixed toward the left-hand distal part of the truck.

[41] I am satisfied that had he looked intermittently left and right it would have been obvious to him that he was slowly encroaching upon the container. The action of looking left and right in the truck’s mirrors clearly could have averted the collision. Mr Hutton, an experienced truck driver, conceded as much. When it was stated to him that he didn’t pay or have regard sufficiently to his mirrors travelling at the slow speed, because if he had he would not have hit the container, he replied ‘potentially yes’. It was very likely that one of the probable causes of the incident was Mr Hutton’s failure to look left and right in the truck’s mirrors, a task that would have been undertaken had he been exercising care and diligence – which he was not.

[42] That does not bring to a close the consideration of whether there was a valid reason for dismissal. When asked how he would have done things differently, Mr Hutton identified that he would have used a ‘spotter’ and would have broken up the original trailer. I am cognisant that Mr Hutton was on a client’s site and there was little in the way of probative evidence before me to show the availability of a spotter. Notwithstanding, as Mr Hutton appeared to think it a viable option to negate the same incident occurring again in the future, I am therefore satisfied that had Mr Hutton exercised care and diligence – he would have engaged a spotter.

[43] Of more importance, however, was Mr Hutton’s acknowledgment that he would have broken up the original trailer. The difficulties of reversing a double articulated vehicle were traversed by Counsel for the Respondent. Mr Hutton did not appear to take issue with Counsel’s identification of this issue. When asked whether it was more difficult to reverse such a vehicle and whether one required more awareness, Mr Hutton replied, ‘yes it is correct’. When asked whether it was important to be aware of surroundings, Mr Hutton again replied ‘yes it is’. The site maps provided were not to scale. Therefore, I cannot evaluate the constraints of the space. However, on an objective level I do consider that ‘breaking up’ the original trailer fell within the scope of Mr Hutton exercising care and diligence. In the absence of doing so, be breached the duty outlined in cl 3.2(a).

[44] Mr Hutton’s inattention and carelessness constituted a breach of his duty to act with the requisite care and diligence. While he reported the incident promptly, admitted his responsibility for the incident and did not act deliberately in causing the collision, it remains the case that Mr Hutton’s conduct constituted a breach of his duty to act with requisite care and diligence, and in the circumstances constitutes a valid reason for dismissal.

[45] In Parmalat Food Products Pty Ltd v Wililo, 30 the Full Bench held that the existence of a valid reason is a very important consideration in any unfair dismissal case, the absence of which will almost invariably render the termination unfair. The Respondent had a valid reason for Mr Hutton’s dismissal, however, let us now consider its response to all that had occurred.

Notification of the valid reason and an opportunity to respond

[46] The Commission must take into account whether notification of a valid reason for termination has been given to an employee protected from unfair dismissal before the decision is made, 31 and in explicit,32 plain and clear terms. It is accepted that this is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality.33

[47] It is an indubitable fact that Mr Hutton received a ‘Show Cause’ letter on 20 May 2020. The letter clearly outlined the factors which had caused the Respondent to consider terminating the employment of Mr Hutton. While Mr Hutton submitted that the letter was framed in such a manner that the decision was pre-determined, I am not satisfied that is the case. All that is apparent from the evidence is that the Respondent conducted its enquiries and arrived at a view that the incident, and its outcomes, warranted dismissal, unless of course anything further came to light regarding Mr Hutton’s response. The decision to terminate employment had not, as of 20 May 2020, been made.

[48] Mr Hutton was afforded the opportunity to provide a response to the allegations made. He did so both in writing and verbally. He was not denied procedural fairness.

An unreasonable refusal by the Respondent to allow a support person

[49] When considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.

[50] Mr Hutton’s representative at the hearing also accompanied him to the meeting on 22 May 2020. Therefore, there was no unreasonable refusal by the Respondent to allow a support person.

Dismissal is related to unsatisfactory performance

[51] I am satisfied that the dismissal was not related to unsatisfactory performance. The allegations Mr Hutton faced sat squarely under the remit of misconduct, not unsatisfactory work performance. As such, prior warnings about performance are irrelevant.

[52] While the representative for Mr Hutton pointed to the Show Cause letter referring to Mr Hutton’s conduct falling under ‘Unacceptable Conduct and Unsatisfactory Performance’, Mr Medina explained that in the context of the letter, the reference to ‘performance’ took into consideration Mr Hutton’s actions whilst operating the vehicle. The circumstances were not those where an employee had, for a period, been underperforming. Mr Hutton had successfully completed his probationary period, and there was no suggestion that unsatisfactory work performance, per se, was an issue.

Impact of the size of the respondent on procedures followed and absence of dedicated human resources management specialist/expertise on procedures followed

[53] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (a) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (b) 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.

[54] The Respondent has internal capability to deal with industrial and human resource issues. Its size and internal capability provide no basis for the employer to provide other than substantive and procedural fairness to its employees, which it did.

Other relevant matters

[55] The Commission is to take into account any other matters that it considers relevant, when considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable.

[56] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. In B v Australian Postal Corporation, 34 the Full Bench stated that:

That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable. 35

[57] Mr Hutton submitted that his behaviour immediately after the incident and during the dismissal process is very noteworthy. Such behaviour, said Mr Hutton, indicated that there was no wilfulness or carelessness in his actions. Mr Hutton considered that his behaviour showed a willingness to act in the Respondent’s best interests.

[58] I am unpersuaded that honesty, cooperation and taking responsibility for one’s actions are ‘noteworthy’ behaviours. They are simply behaviours that are to be expected in any relationship between employer and employee. As such, Mr Hutton has conducted himself, not in a manner that is noteworthy, but in a manner that is to be expected in an employment relationship.

[59] Mr Hutton’s representative sought to impugn the integrity of the Respondent’s enquiry, on the basis that Mr Hutton was not interviewed once the enquiry or investigation had commenced. In pursuing this line of argument, the Representative drew attention to Mr Hughes’ discussion with Mr Hutton having taken place before the enquiry actually started. It was an artificial boundary to draw. I am of the view that the information garnered by Mr Hughes during the course of his conversation with Mr Hutton on 8 May 2020 was able to be relied upon by the Respondent. There was no evidence to suggest that the information proffered by Mr Hutton was not provided voluntarily.

[60] Inevitably events or incidents will occur within a workplace and subsequent enquiries into the same will be made. However, such enquiries or investigations will not always necessitate an interview with the employee alleged to have done wrong. It will of course depend on the circumstances of the matter. The situation that unfolded in this case was that Mr Hutton, having collided with an empty container, returned back to the Respondent’s depot and spoke to Mr Hughes about what had happened, and what, in hindsight, he would do differently. The Respondent’s decision not to interview Mr Hutton as part of Mr Hughes’ enquiries into the incident, does not, in the circumstances of this matter, give rise to procedural fairness concerns. Mr Hutton gave an account of what occurred on 8 May 2020. Thereafter, he was provided with an opportunity to provide a written response to the allegations made and verbal responses to the same – all prior to the Respondent making a decision concerning Mr Hutton’s employment. Further questions were also asked of Mr Hutton in the meeting of 22 May 2020, again before the Respondent arrived at its decision.

[61] I have considered that Mr Hutton was involved in a single act of misconduct. I have, in addition, given due regard to the integrity Mr Hutton displayed after the incident. However, having considered the gravity of Mr Hutton’s breach of duty, noting that some basic interventions, such as intermittently checking his mirrors and breaking up the original trailer, may have precluded the incident, and being mindful that Mr Hutton’s period of service with the Respondent was of short duration, I am unable to conclude that his dismissal was unfair.

[62] Mr Hutton claimed to have lost situational awareness, a factor which purportedly was the predominate reason why the incident occurred. That loss of situational awareness was easily addressed by the checking of mirrors – an act which Mr Hutton concedes he did not do, notwithstanding his extensive experience as a truck driver. Having hired a truck driver with the wealth of experience Mr Hutton purportedly had, it was not unreasonable for the Respondent to have required Mr Hutton to act with reasonable care and with diligence. He was, after all, contractually obliged to do so, and he did not.

[63] Whilst I appreciate the impact the dismissal has had on Mr Hutton because he has lost his job, I am unpersuaded that the mitigating factors presented give rise to a conclusion of harshness.

Conclusion on nature of dismissal

[64] Having taken into account all of the circumstances and the considerations in s 387, I can only conclude that Mr Hutton’s dismissal was not unfair.

DEPUTY PRESIDENT

Appearances:

S Farrell of SJF Work Advice Pty Ltd for the Applicant;
M Baroni of Counsel for the Respondent.

Hearing details:

2020:
Perth (Sydney by video link);
September 3.

Printed by authority of the Commonwealth Government Printer

<PR722432>

 1   AE500132.

 2 Witness Statement of Jason Hutton [5].

 3 Ibid [6].

 4 Ibid [8].

 5 Ibid [8].

 6 Ibid [9].

 7 Ibid [9].

 8 Ibid [9].

 9 Ibid [9].

 10 Ibid [11].

 11 Ibid [11].

 12 Ibid [12].

 13 Ibid [12].

 14 Ibid [14].

 15 Ibid [21].

 16 Ibid [23].

 17 Ibid [24].

 18 Ibid [25].

 19 Ibid [28].

 20 Ibid [29].

 21 Ibid [29].

 22 Ibid [34].

 23 Witness Statement of Mr Anthony Hughes [18].

 24 (1995) 185 CLR 411, 463.

 25   Fair Work Act 2009 (Cth) s 387(a).

 26   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 27   Potter v WorkCover Corporation (2004) 133 IR 458, and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17, [36].

 28 (1999) 169 ALR 89, 92.

 29   King v Freshmore (Vic) Pty Ltd, Print S4213, Ross VP, Williams SDP, Hingley C.

 30 (2011) 207 IR 243, [24].

 31   Trimatic Management Services Pty Ltd v Bowley[2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 32   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Previsic v Australian Quarantine Inspection Services, Print Q3730.

 33   Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15.

 34 (2013) 238 IR 1.

 35   Ibid 41.