John Phillips v Lumbars Transport Pty Ltd
[2019] FWC 6609
•1 OCTOBER 2019
| [2019] FWC 6609 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Phillips
v
Lumbars Transport Pty Ltd
(U2019/5013)
COMMISSIONER JOHNS | SYDNEY, 1 OCTOBER 2019 |
Application for an unfair dismissal remedy.
[1] On 1 May 2019, Mr John Phillips (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Lumbars Transport Pty Ltd (Respondent/Employer/Lumbars). The Applicant seeks compensation.
When can the Commission order a remedy for unfair dismissal?
[2] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[5] In the present matter it is not in contest that the Applicant was protected from unfair dismissal. 1 I am satisfied that the Applicant was so protected.
When has a person been unfairly dismissed?
[6] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[7] In the present matter it is not contested that the Applicant was dismissed by the Respondent. 2 The Small Business Fair Dismissal Code3 and the genuine redundancy4 are not relevant. The only outstanding issue is whether the dismissal was harsh, unjust or unreasonable.
Background
[8] The uncontested factual background to the matter is as follows:
a) The Applicant commenced employment with the Respondent on 25 January 2006.
b) The Applicant was employed as a truck driver.
c) The Applicant was employed full-time. He worked variable hours, but approximately between 80 to 100 hours per week (inclusive of driving time, loading, unloading, waiting time and also rest periods).
d) The Applicant’s base rate of pay was $824.60 per week. However, he elected to be paid on a variable rate based on the kilometres he travelled. His gross pay averaged between $2,500 and $2,600 per week. In the financial year to 30 June 2018 the Applicant earned $109,188 (or $2099.76 per week).
e) Between 3 and 10 April 2019 the Applicant undertook an extensive trip from Perth to Queensland and home to Deniliquin. The Respondent accepted the correctness of the Applicant’s description of the details of the trip. 5
f) On 3 April 2019, having delivered freight to Perth, the Applicant loaded general freight destined for Queensland. He drove from Perth to Northam where he collected a second trailer also loaded with general freight. He then journeyed to Norseman where he stopped overnight.
g) On 4 April 2019 the applicant drove from Norseman to Nundroo where he stopped overnight.
h) On 5 April 2019 the Applicant drove from Nundroo to a parking bay stop between Oodla-Wirra and Yunta where he stopped overnight.
i) On 6 April 2019 the Applicant:
i. drove from the parking bay stop to Yunta where he stopped for meal break.
ii. noticed smoke coming from the brakes underneath the second trailer.
iii. endeavoured to telephone his employer Mr Eddie Lumbar, without success. The Applicant then telephoned a work colleague and asked him to make contact with Mr Eddie Lumbar. The work colleague called the Applicant and reported that Mr Lumbar had said words to the effect of “what the fuck does he want me to do about it?”
iv. inspected the brakes on the trailer. He ascertained that a brake booster had failed and he needed to be replaced. He did not have replacement booster kit.
v. attended Yunta Transport. They did not have a booster.
vi. decided,
“to effect repairs by mechanically winding the boosted brakes back of the drums and then cut the airlines that drive the booster breaks and clamp the airlines shut so that they did not leak air from the remainder of the pneumatic brake system.” 6
The Applicant understood that as a result of his actions the trailer was now “technically unroadworthy”. 7
j) The Applicant then proceeded to Broken Hill. He had two new tires fitted to the truck. He did not get the brakes on the trailer repaired. 8 He then continued to Little Topar where he stopped for the night.
k) On 7 April 2019 the Applicant travelled from Little Topar to a parking bay between Charleville and Augathella where he stayed overnight.
l) On 8 April 2019 the Applicant drove to Aramac where he unloaded 1½ of the trailers. He then proceeded to Longreach where he stopped overnight.
m) On Tuesday, 9 April 2019 the Applicant:
i. unloaded the remaining freight at Longreach.
ii. made contact with his employer. Either Frank or Eddie Lumbar told the applicant to load up the second trailer and “piggy-back” it home on the first trailer. The Applicant followed the direction.
iii. stopped overnight in Wyandra.
iv. checked his logbooks and realised that he was overdue for a compulsory 24 hour rest period.
n) On Wednesday, 10 April 2019:
i. despite being required to take a compulsory 24 hour rest period, the Applicant decided to proceed home to Deniliquin. He falsified his logbook. 9
ii. after breakfast the Applicant left Wyandra and proceeded to Cunnamulla.
iii. at about 10 am or 11 am the Applicant had a telephone conversation with Eddie Lumbar (First 10 April Phone Call). Mr Lumbar asked the Applicant to divert his trip home by going to Parkes, NSW to collect the load of freight.
iv. the Applicant told Mr Lumbar that he (the Applicant) had a problem with his logbook and he was overdue for his scheduled 24-hour break.
v. Mr Lumbar said words to the effect of “it’ll be alright, go the back way.” 10
vi. after the First 10 April Phone Call the Applicant thought about the direction to go to Parkes.
vii. at about 11 am or 12 noon the Applicant called Mr Lumbar (Second 10 April Phone Call) and told him he “was not prepared to take the risk and go to Parkes.” There is a dispute about how Mr Lumbar responded. I deal with that dispute below.
viii. the Applicant was dismissed from his employment.
o) It is not uncommon for drivers to be asked to collect a load if they are returning to the depot with no load.
p) The Respondent sent another driver to Parkes, NSW to collect the crate (at an additional cost to the Respondent).
q) The Applicant drove home to Deniliquin, NSW. The trip from Wyandra to Deniliquin was about 12 hours. The diversion to Parkes, NSW would have resulted in an additional 24 hours (because of the time to drive and load).
r) On Thursday, 11 April 2019 the truck that had been by the Applicant was in the Respondent’s yard.
s) On Friday, 12 April 2019 the Applicant attended at the Respondent’s workplace. The Applicant asked “do I have the sack?” Mr Lumbar responded to the effect that “what do you think? Did you pick up the crate?” 11 The Applicant walked off.
t) The Applicant was subsequently paid five weeks’ pay in lieu of notice (albeit at a reduced rate than he would otherwise have been entitled to). That is say he was paid at the basic wage of $800 per week and not at his average rate of income per week. The Respondent undertook to remedy the underpayment of notice during the hearing on 12 August 2019. 12
u) In his 13 years of employment the Applicant was usually compliant with requests that he pick up additional loads of freight if he was returning to the depot empty. 13
v) The Applicant is 68 years of age.
The hearing
[9] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
[10] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing.
Permission to appear
[11] Both the Applicant and the Respondent sought to be represented before the Commission by a lawyer and paid agent respectively.
[12] Relevantly, section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
[13] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[14] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act. 14 The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.15
[15] At the mention/directions hearing on 12 June 2019 I gave the Applicant permission to be represented, by Mr Peter Hebbard of solicitors, Mills Hebbard Moore, on the basis that I was satisfied the Applicant was unable to represent himself having regard to his level of education and experience. At the hearing on 12 August 2019 the Respondent sought to be represented by Mr Don Cooke of Don Cooke Consulting. Fairness between the parties dictated that I should grant the Respondent permission to be represented and I did so. 16
Witnesses
[16] The Applicant gave evidence on his own behalf.
[17] Eddie Lumbar, a director of the Respondent, gave evidence on behalf of the Respondent.
Exhibits
[18] In advance of the hearing the parties filed the following materials. I have had regard to all of the exhibits in coming to this decision.
Exhibit Number | Description | Transcript Reference |
1. | Form F2 – Unfair Dismissal Application | PN28 |
2. | Form F3 – Employer Response to Unfair Dismissal Application | PN29 |
3. | Applicant’s Outline of Arguments | PN30 |
4. | Statement of John Phillips | PN31 |
5. | Payslip document dated 21 February 2019 | PN32 |
6. | Payslip document dated 28 February 2019 | PN33 |
7. | Payslip document dated 28 March 2019 | PN34 |
8. | Payslip document dated 4 April 2019 | PN35 |
9. | Payslip document dated 11 April 2019 | PN36 |
10. | Tax Estimate for the Applicant for the 2017/2018 period dated July 2018 | PN37 |
11. | Respondent’s Outline of documents | PN44 |
12. | Statement of Eddie Lumbar | PN45 |
13. | Bundle of repair documents | PN254 |
Was the dismissal harsh, unjust or unreasonable?
[19] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[20] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 17
[21] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[22] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 18 and should not be “capricious, fanciful, spiteful or prejudiced.”19 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.20
[23] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.21 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 22
Submissions
[24] The Applicant submitted that there was no valid reason for the dismissal related to his capacity or conduct because he was entitled to refuse to divert to Parkes, NSW. He contended that he was not obligated to go to Parkes, NSW because of the state of the brakes on the trailer and because he was required to have a compulsory 24 hour break (notwithstanding that he decided not to take the compulsory break).
[25] The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s performance, namely his refusal (in their mind) to comply with a lawful and reasonable direction to divert to Parkes, NSW to collect a load of freight (namely a crate).
Evidence
[26] What happened in the Second 10 April Telephone Call between the Applicant and Mr Lumbar is crucially important to whether there was a valid reason as contended by the Respondent. However, each of the Applicant and Mr Lumbar has a different recollection of their discussion. That does not mean that one of the men is lying. Memory is an imperfect thing. By the time the men came to give their evidence 4 months had passed since the conversation occurred. There is unlikely to be a single truth about what was said. Witnesses filter out information that is not important to them. Memory is largely a reconstruction of events. Witnesses can have false memories without being a liar.
[27] The Applicant says 23 that when he told Mr Lumbar that he was not prepared to take the risk to drive to Parkes, the conversation that ensued was to the following effect:
• The Applicant: “you know the problems I’ve got with my logbook and the trailer brakes”.
• Mr Lumbar: “look John that’s just a small problem.”
• The Applicant: “it’s not a small problem.”
• Mr Lumbar: “if you coming straight home, when you get home you can take your shit out of the truck and fuck off.”
[28] Mr Lumbar gave evidence 24 that the conversation was to the following effect:
• The Applicant: “there is a leaking brake booster on one of the trailers. I won’t go to Parkes.”
• Mr Lumbar: “Use the other trailer.
• The Applicant: “I’m out of hours”.
• Mr Lumbar: “have your 24 hour break then pick up the crate” (from Parkes).
• The Applicant: “I’m not going to do it”.
• Mr Lumbar: “If you can’t do that, you can go”.
Findings
[29] The Second 10 April Telephone Call between the Applicant and Mr Lumbar occurred whilst the Applicant was on the road from Wyandra to Cunnamulla. It was a heated exchange. The version of events advanced by the Applicant and Mr Lumbar are similar, but differ in one important respect. That is whether Mr Lumbar told the Applicant to take his 24 hour break before travelling to Parkes, NSW. Mr Lumbar says he did say those words. The Applicant says he did not. 25 The Applicant denied that he was given until Friday, 12 April 2019 to pick up the crate in Parkes, NSW.26 Mr Lumbar says he communicated this to the Applicant.27 At the time the conversation happened the Applicant was already in breach of his obligation to take a compulsory 24 hour break.
[30] The Applicant struck me as a witness of truth. He used the colourful language no doubt often used by him. He spoke honestly about falsifying his logbook. He openly conceded that he drove home to Deniliquin illegally. 28 He conceded he was annoyed by what he considered to be Mr Lumbar’s lack of civility towards him on 10 April 2019. There was no way he was going to go to Parkes, NSW. He considered it too great a risk of getting caught (a greater risk than travelling directly to Deniliquin in breach of the compulsory 24 hour break requirement).
[31] I found Mr Lumbar to be less believable. That is not to say he was a liar. However, his attempt to characterise his phrase “go the back way” as directional advice was far-fetched. It was clear that he was suggesting that the Applicant might better avoid detection by authorities if he went “the back way.” Mr Lumbar was focused on the collection of the crate in Parkes, NSW. He was less focused on the genuine issues being raised by the Applicant. His attempt to innocently characterise the phrase, “go the back way”, reflected poorly on Mr Lumbar. He was trying to fashion his evidence. Noting his propensity to do so, I think it is also more likely that Mr Lumbar did not invite the Applicant to take his 24 hour break. Mr Lumbar wanted the crate collected in Parkes, NSW and for the Applicant to “go the back way” to collect it. For these reasons I do not prefer the version of the conversation advanced by Mr Lumbar. I am more inclined to accept that, when the Applicant resisted diverting to Parkes, Mr Lumbar told the Applicant to “fuck off”. That language was more consistent with the language used by both the Applicant and Mr Lumbar. Theirs was a robust relationship.
[32] I find that the direction to divert to Parkes, NSW was not lawful or reasonable. Mr Lumbar did not invite the Applicant to take his 24 hour break before going to Parkes. Mr Lubmar already knew that the Applicant was in breach of that requirement. The Applicant’s failure to comply with the direction to divert to Parkes, NSW was not a valid reason for dismissal.
[33] However, that is not the end of the matter. I am deeply troubled by the Applicant’s decision to falsify his logbook and to travel back to Deniliquin in breach of the lawful obligation that he have a 24 hour rest period. Mandated rest periods are for the benefit of truck drivers and also for the benefit of other drivers on the road. Fatigue kills.
[34] The Applicant’s decision to travel back to Deniliquin in breach of the lawful obligation that he have a 24 hour rest period was misconduct. It provided a valid reason for the termination of his employment. The Respondent did not elect to terminate the Applicant’s employment for that reason, but it was entitled to do so. However, having regard to the findings I made above about Mr Lumbar’s direction to the Applicant that he divert to Parkes, NSW it would appear that the Respondent was prepared to be complicit in the breach. There should be a consequence for both the Applicant and the Respondent for their respective preparedness to ignore rules around fatigue.
[35] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s conduct (namely his breach of the fatigue rules) although that is a different reason to the one relied upon by the Respondent when it dismissed the Applicant.
Was the Applicant notified of the valid reason?
[36] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 29 and in explicit30 and plain and clear terms.31 In the present matter the Applicant accepted that he was notified of the reason for dismissal.32
[37] Having regard to the matters referred to above, I find that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[38] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 33
[39] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 34 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.35
[40] In the present matter the Applicant was given an opportunity to respond to the direction that he divert to Parkes, NSW. The argument between him and the Mr Lumbar on 10 April 2019 was that opportunity. For the reasons I have stated above the Applicant was entitled to reject the direction given by Mr Lumbar.
[41] In all the circumstances, I find that the Applicant was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[42] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[43] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”36
[44] In the present matter the Applicant did not ask to have a support person. Consequently, the matter is not relevant. The Applicant accepted the same during the hearing. 37
Was the Applicant warned about unsatisfactory performance before the dismissal?
[45] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[46] In all the circumstances, I find that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal. This was conceded by the Respondent. 38
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[47] For the same reason as with the size of the Respondent’s enterprise, in all the circumstances, I find that the absence of dedicated human resource management specialists in the Respondent’s enterprise had an impact on the procedures followed in effecting the dismissal.
What other matters are relevant?
[48] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Submissions
[49] The Applicant submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:
a) his unblemished employment record.
b) his age.
c) the difficulty that a 68 year old man has finding alternative employment in rural NSW.
[50] I consider each of the matters referred to above as relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable. Each of them weigh in favour of finding that the dismissal was harsh.
[51] The fact that the Applicant is 68 years old and is living in a rural town limits his employment opportunities considerably. The Applicant gave evidence that he had tried to find work since the termination of his employment, but had been unsuccessful. That is not surprising. Older workers are routinely discriminated against. One does not have to be Nostradamus to predict that, more likely than not, the Applicant will never work again. It is almost certain that, at his age, he will never again find a job that pays $109,188 per annum. According to the most recent Census, Deniliquin has an unemployment rate of 5.4% and personal median annual income of $30,472. 39
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[52] I have made findings in relation to each matter specified in s.387 as relevant.
[53] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 40
[54] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh.
Conclusion
[55] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.
Remedy
[56] Being satisfied that the Applicant:
a) made an application for an order granting a remedy under s.394; and
b) was a person protected from unfair dismissal; and
c) was unfairly dismissed within the meaning of s.385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
[57] Under s.390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
[58] Further, s.381 of the FW Act sets out the objects of the Commission’s unfair dismissal jurisdiction. I am guided by s.381 in determining the nature of the remedy to award the Applicant. Accordingly, I have had regard to s.381(c) and the fact that Parliament has by express intendment provided for an emphasis on reinstatement.
Is reinstatement of the Applicant inappropriate?
Submissions and evidence
[59] The Applicant submitted that reinstatement is inappropriate because of the break down in the relationship between him and Mr Lumbar.
[60] The Applicant said,
“Even the old days we work together, we drank together, we played up together, we’ve done everything together, but as he’s got to become a bigger businessman I suppose people change, he’s got a lot on his mind and all the rest of it, and, you know, like you never - you never expected – a couple of me and my other mates they’ve been there 14, 15 years, you know, we just love the job, but everything just changed in the last six or seven years or so and is no communication. Frank’s a little bit different, is more talkative and a bit more cooperative sort of thing, but Eddie he’s just got no time for anybody except himself - well, I want to say I know all his work commitments and everything like that, so - but, no, there is no chance of me ever going back there I’m sorry to say. As much as I like the job everything, but that just wouldn’t be any-any hope.” 41
[61] The Respondent submitted that reinstatement is not inappropriate. When asked about the prospect of reinstating the Applicant Mr Lumbar said,
“Commissioner, it’s very hard to get good drivers and I’ll say John is probably one of my better drivers, a lot better driver.” 42
[62] I asked “would you take him back?” Mr Lumbar responded,
“Yes, I would take him back.” 43
[63] The Applicant and Mr Lumbar have known each other for about 35 years. They have a robust relationship. They are, at times, like two old bulls in a paddock. The events of 10 April 2019 are regrettable. Neither man would put aside his pride to,
a) in the case of the Applicant, ask for his job back, or
b) in the case of Mr Lumbar, invite the Applicant back to work.
[64] But despite the events that have passed and noting the difficulty that the Applicant has found finding employment, I think it best that the working relationship be restored. Both men should respectfully and courteously sort out their differences and go back to working with each other. They should both commit to working with each other productively.
[65] Mr Lumbar should commit to being more respectful of the Applicant. Noting that the Applicant had rarely refused to be diverted on the trip home when he was empty, when the Applicant put forward cogent reasons why he should not be diverted in April 2019, Mr Lumbar should have accepted those reasons. Mr Lumbar behaved unreasonably. As I have found, he unfairly dismissed the Applicant.
[66] For his part the Applicant needs to focus on his intention to retire in two years’ time and to maximise his income in that period. As a 68 year old man living in Deniliquin he can best to do that by returning to work for the Respondent. The order that the Respondent reinstate the Applicant does not compel the Applicant to work for the Respondent. He may decline to be reinstated. He may resign at any time after he is reinstated. That is a matter for him. However, the order of reinstatement recognises that the Applicant was unfairly dismissed and is best able to maximise his pre-retirement income by returning to work for the Respondent.
[67] Having regard to the matters referred to above, I consider that reinstatement is not inappropriate.
Reinstatement – to what position should the Applicant be appointed?
[68] Section 391(1) of the FW Act provides that an order for the Applicant’s reinstatement must be an order that the Applicant’s employer at the time of the dismissal reinstate the Applicant by:
(a) reappointing the Applicant to the position in which the Applicant was employed immediately before the dismissal; or
(b) appointing the Applicant to another position on terms and conditions no less favourable than those on which the Applicant was employed immediately before the dismissal.
[69] I find that the position the Applicant had prior to his dismissal (that of truck driver) remains available for him to be reinstated into.
[70] Consequently, I am satisfied that it is open to me to make an order reappointing the Applicant within 21 days of the date of this decision to the position in which the Applicant was employed immediately before the dismissal.
Reinstatement - is it appropriate to make an order to maintain continuity?
[71] Section 391(2) of the FW Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to maintain the following:
(a) the continuity of the Applicant’s employment;
(b) the period of the Applicant’s continuous service with the employer or, if applicable, the associated entity.
[72] In all the circumstances, I consider it appropriate to make an order to maintain the Applicant’s continuity of employment and period of continuous service with the employer since 10 April 2019.
Reinstatement - is it appropriate to make an order to restore lost pay?
[73] Section 391(3) of the FW Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.
[74] Section 391(4) of the FW Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:
(a) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the Applicant during the period between the making of the order for reinstatement and the actual reinstatement.
[75] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate. 44 Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.45
[76] Having found that the Applicant engaged in misconduct by not taking the legally required rest break I have decided that it would not be appropriate to award the Applicant lost pay for all of the period since the dismissal. There must be some consequence for his breach of important road rules requiring compulsory breaks.
[77] However, having regard to the findings I made above about Mr Lumbar’s direction to the Applicant that he divert to Parkes, NSW it would appear that the Respondent was prepared to be complicit in the breach.
[78] Therefore, it seems to me that, a fair go all round dictates that the Applicant and the Respondent equally share the responsibility for the Applicant’s lost pay in the period since his employment.
[79] I require the parties to calculate the partial restoration of lost pay as follows:
a) Calculate the number of weeks between the dismissal date (10 April 2019) and the date that the reinstatement occurs = “weeks out of work”.
b) Multiply “weeks out of work” by average weekly salary ($2,099.76) = “maximum lost income”.
c) Deduct from the maximum lost income:
i. any amounts paid to the Applicant by way of payment in lieu of notice; and
ii. any income (from any source, including social security payments) earned by the Applicant since 10 April 2019,
= “net lost income”.
d) Divide net lost income by 2.
[80] The quotient of net lost income divided by 2 is the amount of wages to be restored to the Applicant (less tax).
[81] If the parties have difficulty agreeing upon the amount of wages to be restored to the Applicant, they have liberty to apply to have the matter relisted for a determination of the same.
Conclusion
[82] In the present matter I have decided that:
a) the Applicant was protected from unfair dismissal,
b) the Applicant was dismissed by the Respondent,
c) the dismissal was harsh and, consequently, unfair,
d) the Applicant should be reinstated into his employment as a driver within 21 days,
e) continuity of service should be maintained, and
f) there be a restoration of lost pay calculated in accordance with paragraph [79].
[83] An order [PR712691] to the above effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr P Hebbard, for the Applicant.
Mr D Cooke, for the Respondent.
Hearing details:
12 August 2019, Sydney via video conferencing to Deniliquin Court House.
Printed by authority of the Commonwealth Government Printer
<PR712690>
1 Transcript PN310-313.
2 Transcript PN304-305.
3 Transcript PN316-317.
4 Transcript PN318-319.
5 Transcript PN208.
6 Exhibit 4.
7 Ibid.
8 The Applicant’s evidence was that, because of the response from Mr Lumbar he had reported to him by his colleague, he decided he did not have authority to incur the cost of fixing the brakes. He conceded that he was “pissed off” with Mr Lumbar (Transcript PN92). In any case it was likely difficult to arrange a repair on a Saturday night in Broken Hill.
9 Transcript PN96.
10 Although Mr Lumbar concedes that he said words to this effect, he gave evidence that he was giving an instruction about the quickest route from Bourke to Parkes. I reject this evidence. The Applicant is an experienced truck driver. There was no need for Mr Lumbar to give him directional advice. He was suggesting the “back way” to avoid detection from authorities.
11 The Respondent contended that Mr Lumbar was genuinely inquiring about whether the Applicant had picked up the crate from Parkes, NSW. I reject that contention. Mr Lumbar had already sent another diver to collect the crate in Parkes, NSW. The Applicant’s truck had been returned the day before. Mr Lumbar knew full well that the Applicant had not collected the crate in Parkes, NSW. The question “Did you pick up the crate?” was not a genuine question.
12 Transcript PN354.
13 Transcript PN257.
14 Warrell v Fair Work Australia [2013] FCA 291.
15 Ibid.
16 Transcript PN27
17 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
18 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
19 Ibid.
20 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
21 Edwards v Justice Giudice [1999] FCA 1836, [7].
22 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
23 Exhibit 4.
24 Exhibit 12.
25 Transcript PN107.
26 Transcript PN112.
27 Transcript PN262.
28 Transcript PN115.
29 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
30 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
31 Ibid.
32 Transcript PN320-321.
33 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
34 RMIT v Asher (2010) 194 IR 1, 14-15.
35 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
36 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
37 Transcript PN326-327.
38 Transcript PN328-329.
39 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
41 Transcript PN292.
42 Transcript PN296.
43 Transcript PN297.
44 Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].
45 See, eg, Regional Express Holdings Ltd v Richards[2010] FWAFB 8753, [29].
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