Kirkbright v K&S Freighters Pty Ltd
[2016] FWC 1555
•24 March 2016
[2016] FWC 1555
DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| Colin Kirkbright | |
| v | |
| K&S Freighters Pty Ltd T/A NTFS | |
| (U2015/11297) | |
| COMMISSIONER BISSETT | MELBOURNE, 24 MARCH 2016 |
| Application for relief from unfair dismissal. |
[1] Mr Colin Kirkbright has made an application to the Commission pursuant to s.394 of
the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. Mr Kirkbright was
employed by K&S Freighters Pty Ltd T/A NTFS (NTFS).
[2] Mr Kirkbright commenced employment with NTFS in 1982. At the time his
employment was terminated Mr Kirkbright was working for NTFS as an operations
supervisor. Mr Kirkbright’s employment was terminated on 17 August 2015 for:
knowingly sending freight without preparing the necessary documentation required
under policy and procedure;
knowingly sending freight without the necessary documentation, without charge
and without permission from his line manager;
knowingly using a fuel card on annual leave without permission of and as directed
1
by the General Manager.
[3] Mr Kirkbright was represented by the Transport Workers’ Union of Australia (TWU)
in the hearing. NTFS was represented, with permission, by Mr Bob Ironmonger.
Background
[4] On 17 August 2015 Mr Kirkbright was called to a meeting with Mr Ben Clifton, the
NT Area Manager for NTFS. Also present at the meeting was Brendan Carlson, a co-worker
of Mr Kirkbright. Mr Kirkbright was asked if he wanted a support person which he declined.
[5] At the meeting Mr Kirkbright was advised that he had not filled in the appropriate
paperwork for a freight delivery from the Darwin depot to the Adelaide depot when he did not
have permission from his line manager to do so, that he had delivered freight without charge
and without permission and that he had used a company fuel card whilst on annual leave
[2016] FWC 1555
when he did not have permission to do so. Mr Kirkbright agreed that he had done each of
these but said it was how things were done in the past.
Evidence
[6] Evidence was given for Mr Kirkbright by himself and Mr Trevor Marslen who was
General Manager of NTFS for 22 years until 2011.
[7] Evidence was given for NTFS by Mr Andrew Thompson, General Manager of NTFS;
Mr Ben Clifton, Area Manager for NTFS; Mr Brendan Carlson, Operations Manager for
NTFS and Mr Matthew Lymn, Administration Officer for NTFS.
[8] Mr Kirkbright says that when K&S Freighters took over NTFS he was given a letter
stating that there would be no changes in his employment. He said he did some online training
on K&S Freighters policies. There were about 30 policies and he did all of the training in a
couple of hours and cannot remember what it all was.
[9] Mr Clifton said that the training provided to Mr Kirkbright was known as ION and
that it contained or referenced the relevant policies. Mr Clifton says that Mr Kirkbright, in his
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behaviour, generally breached the requirements of ION.
[10] At the request of the Commission NTFS produced a copy of ION which was a screen
dump of the training program. It also provided a copy of the employee handbook which is a
necessary tool for completion of the training.
[11] Mr Thompson’s evidence is that ultimately he was responsible for the decision to
dismiss Mr Kirkbright and that this decision was made after input from the relevant staff and
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| advice from HR. | He did not view any CCTV footage as part of his considerations. |
[12] Mr Clifton’s evidence is that he was not the ultimate decision maker with respect to
the decision to terminate Mr Kirkbright’s employment and that the ultimate decision maker
4
| was the human resources department. | Mr Clifton said that, while his name was at the bottom |
of the dismissal letter, he delivered the letter on instructions from Ms Kaye Evans from HR.
[13] Mr Thompson said that the investigation process into misconduct should, in due
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| course, involve an interview with the person of concerned | but did not agree that, if this did |
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| not occur, the investigation would be incomplete. | Mr Thompson said that the interview with |
Mr Kirkbright on 17 August 2015 was an attempt to gather information from him but it was
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‘abruptly shut down and an aggressive nature shown and it…blew up.’
[14] Mr Thompson said that his instructions of the meeting were that the information and
evidence was to be put to Mr Kirkbright, an explanation sought from him and he was to be
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asked why his employment should not be terminated.
[15] Mr Thompson accepts that the conduct for which Mr Kirkbright had been dismissed
had been going on for some time (not specifically by Mr Kirkbright) but says the ‘disciplines’
to arrest such conduct had also been in place for some time. Further, he says that there were
employees who had been dismissed for similar behaviour prior to Mr Kirkbright and it should
have been abundantly clear that such behaviour could result in disciplinary action.
[2016] FWC 1555
[16] Mr Thompson said that he did not consider a warning appropriate for Mr Kirkbright as
he had a discussion with him with respect to the fuel card which Mr Kirkbright ignored. He
gave Mr Kirkbright a clear instruction to not to use the fuel card and Mr Kirkbright did not
abide by that instruction.
[17] Mr Carlson accompanied Mr Clifton to the meeting with Mr Kirkbright on 17 August
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2015. He agreed that, in his mind, the purpose of the meeting was to dismiss Mr Kirkbright.
[18] Mr Clifton said that while the letter of termination delivered to Mr Kirkbright had
been written prior to the meeting with him, the outcome of the meeting was not
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| predetermined. | Mr Clifton later agreed that he was instructed to dismiss Mr Kirkbright at |
11
| the meeting on 17 August 2015 and that the decision to dismiss was predetermined. | Mr |
Clifton said that Mr Kirkbright admitted to the conduct prior to the termination of his
employment.
[19] Mr Thompson said that some staff based in Darwin historically had cars as part of a
salary package. These had now been replaced by an allowance. Only two staff currently have
the allowance as part of their package. The change in arrangements came into place prior to
March 2015 when K&S Freighters acquired NTFS.
Sending freight without documentation and without charge
[20] Mr Kirkbright said he does not recall if any of the training he undertook was in
relation to freight documentation.
[21] Mr Kirkbright said that it was common practice to send freight for subcontractors
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| without a consignment note. | He said that he had sent freight without charge in the past for |
subcontractors of the business when they had ordered spare parts that needed to come from
Darwin.
[22] Mr Kirkbright agreed that he sent freight to Adelaide for a person who was not an
employee of NTFS. In his written statement Mr Kirkbright says this person was an ex-
subcontractor. He agreed that he did not tell anyone he was doing so free of charge because
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such a decision had always been at his discretion.
[23] Mr Kirkbright gave evidence that he was never told to raise a consignment note in
previous years for freight being carried free of charge. Even when he was asked to raise a
consignment note for such freight Mr Kirkbright did not do so ‘because we have never done
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in the past.’
[24] Mr Marslen gave evidence that when he was General Manager all freight required a
15
consignment note, even where it was transported for free.
[25] Mr Clifton said that he discussed with Mr Kirkbright the use of consignment notes
‘many a time’ and that freight, regardless of its value, ‘does not travel without a
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con[signment] note being raised.’
[26] He said that he became aware that freight was being sent without a consignment note
through a co-worker of Mr Kirkbright and he reported this to the General Manager and to
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| HR. | He said he ‘collated and investigated and reported to HR’ but this did not include an |
[2016] FWC 1555
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| interview with Mr Kirkbright. | In undertaking the investigation Mr Clifton said he ‘followed |
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the process.’
[27] Mr Clifton agreed that no counselling or formal warnings had been issued to Mr
Kirkbright regarding the need to issue consignment notes. He further said that the policy with
respect to the need to keep proper business documentation is relevant to the need to always
issue consignment notes.
[28] Mr Carlson reports to Mr Clifton. He said that his role was to undertake the
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| investigation into whether freight was moving without consignment notes. | He said he |
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| viewed CCTV footage, followed up paperwork and questioned others, | in particular |
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| administrative staff about consignment notes. He did not interview Mr Kirkbright. | He |
reported the result of his investigation to Mr Clifton. As a result of the investigation he drew
the conclusion that some freight was moving without consignment notes. He was not involved
in the decision to dismiss Mr Kirkbright.
[29] Mr Carlson said that were a number of other incidents of Mr Kirkbright sending
freight without invoices but there was no CCTV footage to support this.
[30] Mr Thompson gave evidence that it is not the case that freight for subcontractors is
carried for free although it is permitted under certain circumstances and with proper approval.
Staff do not have the authority to make such a decision.
Using fuel card whilst on annual leave
[31] Mr Kirkbright agreed that he did use the fuel card whilst on annual leave. He said that
he had a discussion with Mr Thompson about vehicle usage in July 2015 but this did not
include fuel card usage on annual leave. The conversation was instigated by Mr Kirkbright to
clarify if he had access to a company vehicle. Mr Kirkbright says that Mr Thompson agreed
that his work car was a tool of trade which he understood to mean he could use it to drive to
and from work. He says he had no other conversation about motor vehicles with Mr
Thompson.
[32] Mr Kirkbright said he told Mr Clifton that he was going to use the fuel card and was
not told he could not.
[33] Mr Kirkbright went on holidays on 3 July 2015. He did not deny that fuel card
transactions between 3 and 19 July 2015 whilst he was on leave, were to the value of $838.00.
Mr Kirkbright says that he had a fuel card, that it was for company vehicles and that he had
previously used a company fuel card when he had used a company vehicle to go ‘down
South.’ He said he would not have used the fuel card when he was on leave if he was not
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allowed to because ‘why would [he] jeopardise [his] job.’
[34] Mr Kirkbright said that none of the ION training related to motor vehicle usage or fuel
card use.
[35] Mr Marslen ceased working for NTFS in 2011. He said that when he was General
Manager Mr Kirkbright was entitled to use a fuel card when he was on annual leave as
‘having the use of a fuel card whilst they were on annual leave was far more beneficial to
them [than] receiving bits and pieces of extra money they would pay a heap of tax on and
[2016] FWC 1555
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| those things.’ | He said that Mr Kirkbright’s package included the use of a Ute and a fuel card |
and that the Ute could be used during periods of annual leave. Mr Marslen agreed that
arrangements could have changed after he left the company and he would not necessarily be
aware of those changes.
[36] Mr Thompson said that he received a call from Mr Kirkbright in July 2015, about the
time Mr Kirkbright was going on leave. Mr Kirkbright asked his about the use of the fuel card
when he was on holidays. He said he told Mr Kirkbright that he could not use the fuel card
25
while he was on leave and that it was for business use only.
Mr Clifton’s evidence is that he had a number of conversations with Mr Kirkbright
about the restrictions on his use of the fuel card including that they were for use for work
related purposes and travel to and from work. Mr Clifton say he had a specific conversation
with Mr Kirkbright about this prior to him going on leave and advised him that he was not to
use the fuel card while on leave without approval of Mr Thompson. Mr Clifton says that after
this conversation Mr Kirkbright made a telephone call to Mr Thompson.
Post dismissal conduct
[38] Mr Kirkbright agreed that he took LED lights home from the workplace. He said he
told Mr Clifton about the lights and Mr Clifton knew he had taken them.
[39] Mr Kirkbright agreed that he did have two fuel cards in his possession at the time his
employment was terminated. He suggested that this came about when he had to change over
vehicles and he may not have handed in the old fuel card. He says that this was not deliberate.
He says he returned the two fuel cards to the TWU after his was dismissed who sent them on
to NTFS.
[40] NTFS allege that Mr Kirkbright had fraudulently used a fuel card to purchase fuel for
reasons other than the use in company cars and that this was discovered after Mr Kirkbright
was dismissed.
[41] Mr Clifton said that, while he had no CCTV or other footage to show it was Mr
Kirkbright (mis)using the fuel card, he knows the card in question was in Mr Kirkbright’s
possession as it was returned to NTFS by Mr Kirkbright (via the TWU) after Mr Kirkbright’s
employment was terminated. Mr Clifton said he concluded that the fuel card had been used by
Mr Kirkbright on the dates specified as the fuel card had been allocated to him. The car that
the fuel card was attached to was no longer part of the NTFS fleet.
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[42] Mr Clifton relied on a report showing fuel card use.
At my request NTFS produced a statement by Mr Greg Lockwood who is employed
by K&S Freighters as administration manager for K&S Agencies (a division of K&S
Freighters). He is responsible for the allocation of fuel cards across all divisions of K&S
Freighters, including NTFS.
[44] He stated that fuel card number 7071 3400 7435 7475 was allocated to vehicle FMS
1436 and was used by Mr Kirkbright. It was last used on 25 May 2015.
[2016] FWC 1555
Fuel card number 7071 3400 7611 1921 was allocated to vehicle FMS 1670 and was
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used by Mr Kirkbright. It was last used on 8 August 2015.
[46] A number of other matters in relation the Mr Kirkbright’s conduct that were not
discovered until after he was dismissed were also put to me although no direct evidence was
given of the conduct.
Was Kirkbright unfairly dismissed?
[47] I am satisfied that Mr Kirkbright is protected from unfair dismissal. I am also satisfied
and do find that he has been dismissed, the Small Business Code does not apply and the
dismissal did not relate to redundancy. In determining if Mr Kirkbright was unfairly
dismissed it is therefore necessary to determine if his dismissal was harsh, unjust or
unreasonable.
[48] The Fair Work Act 2009 (the Act) states:
387 Criteria for considering harshness etc.
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.
[49] I have considered each of these criteria in reaching my decision.
(a) a valid reason
[2016] FWC 1555
[50] Mr Kirkbright’s employment was terminated for sending freight without the
appropriate paperwork and without charge and for using a fuel card whilst on annual leave
without permission.
[51] Subsequent to his dismissal NTFS discovered irregularities in the use of fuel cards by
Mr Kirkbright and also rely on this as a reason for his dismissal.
[52] The ION induction training referred to by Mr Clifton for NTFS states:
The K&S Freighters handbook is provided to all employees as an information resource
when commencing employment with and a reference guide in the course of your
employment. The handbook contains company policies, procedures and
information….This online training [ION] will need to be read in conjunction with the
K&S Freighters Employee handbook.
[53] I am satisfied that Mr Kirkbright completed the ION training and that, in doing so, he
would had access to the Employee Handbook. I note that he completed that training in June
2015, before he travelled on annual leave. I am not aware of the date he is said to have sent
the freight.
[54] The Employee Handbook says, in section 4.12 – Business Records and Documentation
| that: | |
| All business records and documentation must be prepared accurately and any | |
| procedures associated with such must be strictly adhered to. Deliberate falsification of | |
| any documentary record, whether such is a Company document or not, will lead to | |
| dismissal whether there is any gain to the employee(s) concerned or not. | |
| [55] | The Employee Handbook also states, in section 4.20 – Vehicle Policy, that: |
| Fuel cards are only to be used for the nominated driver and vehicle for authorized fuel | |
| only. | |
| [56] | With respect to sending material without a consignment note no further material with |
respect to procedures for documenting freight movement was put before me. I do accept
however, on the basis of the evidence of Mr Marslen and current employees of NTFS, that it
is standard practice in the business to provide a consignment note for all freight that moves
through the business. It seems nonsensical to not provide a consignment note even if freight is
moving without charge because, without that note, there is no way of knowing what goods are
being freighted and where they might be.
[57] Mr Kirkbright agreed that he sent freight without consignment notes and I accept this
evidence.
[58] I do not accept that Mr Clifton spoke to Mr Kirkbright on a number of occasions about
consignment notes. Whilst his evidence was that he spoke to him ‘many a time’ on
consignment notes there is nothing that indicates that these discussions were about the need to
always provide consignment notes in circumstances where Mr Kirkbright thought they were
[2016] FWC 1555
not required. I do accept however that at least once Mr Kirkbright was told to issue a
consignment note and he said he did not need to.
[59] I find that Mr Kirkbright did send freight without consignment notes.
[60] I am also satisfied that Mr Kirkbright sent freight for free. Mr Kirkbright admits that
he did so and believes that it was his decision to make.
[61] Whilst it may be that freight has been sent in the past for free for subcontractors, Mr
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| Kirkbright’s evidence is that he sent the goods for free for an ex-subcontractor. | This is not |
the same as sending freight for free for staff or subcontractors. The person in question had no
current connection with NTFS and whilst Mr Kirkbright may have felt some sympathy for
him there are no grounds on which he could justify his actions.
[62] Whilst NTFS relied on CCTV footage in respect of this incident the non-provision of
that material to the Commission does not alter my conclusion. Mr Kirkbright admitted that he
sent the freight for free.
[63] I do not accept that Mr Kirkbright or any other employee would have the sole
authority to determine if freight should travel without charge.
[64] The weight of evidence in respect of the use of the fuel card on annual leave is against
Mr Kirkbright.
[65] I prefer the evidence of Mr Thompson with respect to the conversation between him
and Mr Kirkbright in July 2015 about the use of the fuel card. I consider that Mr Kirkbright
heard what he expected and wanted to hear. His evidence suggests that on previous occasions
when he has used the fuel card whilst on annual leave he ‘had used company cars to go down
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| south’. | He was of the view that he had an entitlement to continue to use the fuel card, even |
in circumstances where he was apparently not driving a company car.
[66] I also prefer the evidence of Mr Clifton to that of Mr Kirkbright. There is no
reasonable explanation as to why Mr Clifton would allow Mr Kirkbright to use a fuel card for
private purposes in circumstances where he had reinforced with Mr Kirkbright that the car
and fuel card were for work purposes. Mr Clifton’s evidence explains why Mr Kirkbright
contacted Mr Thompson, and not human resources, to get the matter clarified.
[67] Mr Thompson was clear in his evidence that, at the time he joined NTFS three years
ago, there were only two employees who had a motor vehicle as part of their salary package –
Mr Kirkbright was not one of these. In any event both of these employees have now moved
onto an allowance in lieu of the car.
[68] Mr Marslen’s evidence does not assist me in this matter. Mr Marslen has not worked
for NTFS for four years – his knowledge of existing practices is necessarily limited. That he
may have given Mr Kirkbright permission in the past to use a fuel card whilst on annual leave
does not mean Mr Kirkbright could continue to do so at will and in the face of an explicit
instruction not to do so.
[69] Mr Kirkbright was told not to use the fuel card whilst he was annual leave but
proceeded to do so. He clearly breached a direction given to him.
[2016] FWC 1555
[70] I am satisfied that Mr Kirkbright used the fuel card whilst on annual leave and that he
did so despite a direction being given to him not to.
[71] Of the matters discovered following the termination of Mr Kirkbright’s employment I
am satisfied that he took two LED lights. I am not satisfied that this occurred without
permission. Mr Kirkbright’s evidence is that he told Mr Clifton he was taking the lights. No
evidence was given by Mr Clifton of the matter such that I could draw any conclusion about
the conduct. In any event I have not been appraised of the cost to NTFS if, in fact, this was
done.
[72] With respect to the use of fuel cards I am not satisfied there is sufficient evidence
before me on which any finding could be made that Mr Kirkbright misused a fuel card. Mr
Kirkbright’s explanation of the fuel cards was not convincing but the allegation has been
made by NTFS and it is up to them to provide me the evidence on which I could make a
finding on the balance of probabilities.
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| [73] | NTFS has put material in front of me | but has not given me the grounds on which I |
could draw the inference it seeks.
[74] In coming to my conclusion I have not rejected the statement of Mr Lockwood as
sought by Mr Kirkbright. It does no more than confirm what Mr Clifton said about the
allocation of fuel cards and is supported by Mr Kirkbright’s admission that he had two fuel
cards in his possession when his employment was terminated.
[75] On other post dismissal matters raised by NTFS Mr Kirkbright has denied the
allegations and the only material before me is hearsay. I am not satisfied that Mr Kirkbright
engaged in the conduct alleged.
[76] In summary, I am satisfied that Mr Kirkbright sent freight without consignment notes,
sent freight without charge and used a fuel card whilst he was on annual leave. Each of these
actions was without permission and in breach of established NTFS practices.
[77] Mr Kirkbright’s argument that this is how it has always been is not satisfactory.
[78] I am satisfied that this conduct of Mr Kirkbright provides a valid reason for dismissal.
(b) notified of the reason
[79] Notification of a valid reason for dismissal must be given before the decision to
dismiss an employee is made.
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| [80] | In Crozier v Palazzo Corporation Pty Ltd | , the Full Bench said: |
[73] As a matter of logic procedural fairness would require that an employee be
notified of a valid reason for their termination before any decision is taken to terminate
their employment in order to provide them with an opportunity to respond to the
reason identified. Section 170CG (3)(b) and (c) would have very little (if any) practical
effect if it was sufficient to notify employees and give them an opportunity to respond
[2016] FWC 1555
after a decision had been taken to terminate their employment. Much like shutting the
stable door after the horse has bolted.
[81] Whilst the decision in Crozier was made under previous legislation the wording under
the Fair Work Act 2009 has not altered such that the principal should be set aside.
[82] In this case I am not satisfied that Mr Kirkbright was notified of the reason for his
dismissal prior to the decision being made to terminate his employment.
[83] Whilst I accept Mr Thompson’s evidence that the meeting on 17 August 2015 should
have been part of the investigation process this was not the basis on which either Mr Clifton
or Mr Carlson approached the meeting.
[84] Mr Clifton, whilst at first said the decision to terminate had not been made prior to the
meeting with Mr Kirkbright on 17 August 2015, ultimately agreed that he was instructed to
dismiss Mr Kirkbright at that meeting.
[85] Mr Carlson – who was charged with investigating the matters which ultimately led to
Mr Kirkbright’s dismissal – understood that the purpose of the meeting was to terminate Mr
Kirkbright’s employment.
[86] Whilst Mr Carlson gave uncontested evidence that each of the matters was put to Mr
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| Kirkbright in the meeting on 17 August 2015 | this does not overcome the apparent intent of |
| Mr Clifton in going into the meeting. |
[87] On the basis of the evidence before the Commission from Mr Clifton and Mr Carlson I
am satisfied that Mr Kirkbright was not notified of the reason for his dismissal before the
decision to dismiss him was made.
[88] I do not put any weight on the letter of termination having been prepared prior to the
meeting on 17 August 2015 to reach this conclusion. The existence of a letter written in
advance – particularly in circumstances where the human resources staff assisting line
management may not be co-located – is not unusual. It may or may not be provided,
depending on the course of the meeting. It does not, alone, determine whether an employee
was notified of the reason for dismissal before the decision is made. This decision can only be
made after weighing up all of the evidence from those who participated in the decision
making and the meeting with the employee concerned.
(c) opportunity to respond
[89] Mr Carlson gave uncontested evidence that in the meeting of 17 August 2015 Mr
Kirkbright was asked of each of the incidents on which the Respondent relied in terminating
his employment. His evidence is that the Mr Kirkbright got agitated and angry in that
meeting.
[90] Whilst Mr Thompson gave similar evidence I accept that he relayed only what he had
been reported to him. There is no suggestion that he was in the meeting such that he had first-
hand knowledge of what took place.
[2016] FWC 1555
[91] Despite this, given my finding above, I am not satisfied that Mr Kirkbright was given
an opportunity to respond such that NTFS might alter is proposed course of action in
terminating his employment.
(d) support person
[92] I am satisfied that Mr Kirkbright was not unreasonably denied a support person during
the meeting of 17 August 2015.
(e) performance
[93] Mr Kirkbright’s employment was not terminated for performance related reasons. I do
not need to consider this matter.
(f) & (g) the size of the employer’s enterprise and access to human resource expertise
[94] NTFS is a division of K&S Freighters Pty Ltd. K&S Freighters has about 2000
employees and has a human resources department. The Employee Handbook shows that it
was approved by the General Manager Human Resources. The evidence of Mr Clifton is that
he was given assistance and guidance by the HR area and Mr Thompson gave evidence that,
while he was the ultimate decision maker, the human resources area played a critical role in
the decision making process.
[95] I am therefore satisfied that the size of the employer’s undertaking would not impact
on the procedures followed in effecting the dismissal.
[96] NTFS had access to human resource expertise such that I do not consider the absence
of such access would impact on the procedures followed in effecting the decision.
(h) any other matters
[97] Mr Kirkbright had over 30 years’ service with NTFS. In that time he had an
unblemished record. He has actively sought work since his dismissal.
Conclusion as to harsh, unjust or unreasonable
[98] The process of investigation undertaken by NTFS in respect of Mr Kirkbright’s
conduct left much to be desired.
[99] At no stage was Mr Kirkbright advised that matters with respect to his conduct were at
issue or were being investigated. He was not provided with an opportunity to consider the
claims that were being made or to properly provide an opportunity to respond.
[100] Whilst Mr Kirkbright’s language in the meeting of 17 August 2015 leaves much to be
desired; he displayed an appalling lack of respect for his manager and co-worker and this was
the first time he had been confronted with the allegations. His reaction was not outside the
realm of possibilities and should have been foreseen. The human resource manager, if she had
not, should have walked Mr Clifton through what to do in such a circumstance. The meeting
should have been halted, Mr Kirkbright given the allegations in writing and he should have
[2016] FWC 1555
been given an opportunity to respond either in writing or in a meeting at a future date (which
could have been in a couple of days).
[101] The lack of procedural fairness in the investigation and in effecting the dismissal is a
substantial matter in my consideration as was Mr Kirkbright’s long service with NTFS.
[102] I have had to balance these against Mr Kirkbright’s disregard of a clear direction given
to him not to use the fuel card while he was on annual leave, a direction given to him by Mr
Clifton and then by Mr Thompson.
[103] I have also taken into account that Mr Kirkbright undertook his training and had
access to the Employee Handbook about one month before he went on annual leave and that
the instruction in the Employee Handbook in relation to fuel and motor vehicles is clear.
[104] Whilst I have found that there was a valid reason for the dismissal of Mr Kirkbright I
am nonetheless satisfied that the decision to dismiss him, in circumstances where he was not
afforded procedural fairness and in circumstances where, had an open investigation been
undertaken and had he been given an opportunity to respond an alternative penalty may have
been applied and in circumstances where he otherwise has a 30 year unblemished record is
both harsh in that it is disproportionate and unreasonable in that the totality of Mr
Kirkbright’s circumstances were not taken into account.
Conclusion as to unfair dismissal
[105] For these reasons I am satisfied that Mr Kirkbright was unfairly dismissed.
Remedy
[106] Mr Kirkbright seeks reinstatement.
[107] NTFS says that reinstatement would not be reasonable as it has lost trust and
confidence in him.
[108] Mr Clifton says that the workplace relies on teamwork and autonomous trust. He says
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| he no longer believes Mr Kirkbright displays these attributes. | Further, Mr Clifton says that |
things have happened since Mr Kirkbright has left the business that reinforces this lack of
trust.
[109] Mr Thompson said that he had lost trust in Mr Kirkbright. His concern was that the
activities of Mr Kirkbright had been going on for some time and did not believe the trust
could be re-established if he returned to the workplace.
[110] In circumstances where Mr Kirkbright showed disregard for a direction given to him
and where his attitude seems to be that he can keep doing things as he does because that is
how he has always done them I do not consider reinstatement to be appropriate. I am satisfied
that Mr Thompson and Mr Clifton no longer trust Mr Kirkbright to abide by instructions
given to him and am satisfied that it will be difficult to rebuild that trust.
[111] I shall therefore consider compensation.
[2016] FWC 1555
[112] I have carefully considered the material that has been provided to me in these
proceedings. I am not satisfied that the parties have addressed those matters necessary to
enable me to properly determine the appropriate level of compensation.
[113] I shall therefore issue further directions for the filing of written submissions and
evidence relevant to those matters under s.392 of the Act. On receipt of this material the
parties will be required to advise me if a hearing on the material is required in which case a
video or phone hearing will be arranged.
COMMISSIONER
| Appearances: |
E Lawrie of the Transport Workers Union for the applicant.
B Ironmonger and E Compitiello for the respondent.
Hearing details:
2015.
Darwin:
15 December
Final written submissions:
Applicant, 5 Feb 2016
Respondent, 29 January 2016
1
Exhibit A3.
2
Transcript PN646.
3
Transcript PN1086 and 1094.
4
Transcript PN487-8.
5
Transcript PN1108.
6
Transcript PN1122.
7
Transcript PN1136.
8
Transcript PN1139.
9
Transcript PN965.
10
Transcript PN 509.
11
Transcript PN709.
12
Transcript PN157.
13
Transcript PN276-7.
14
Transcript PN195.
15
Transcript PN413.
[2016] FWC 1555
16
Transcript PN482-3.
17
Transcript PN697.
18
Transcript PN702 and 704.
19
Transcript PN706.
20
Transcript PN869.
21
Transcript PN851-7.
22
Transcript PN863.
23
Transcript PN240.
24
Transcript PN387.
25
Transcript PN1078.
26
Exhibit R2.
27
See provided statement of Greg Lockwood dated 21 December 2015.
28
Exhibit A1, paragraph 29.
29
Transcript PN144.
30
Exhibit R2.
31
(2000) 98 IR 137.
32
Exhibit R4, paragraphs 28-38.
33
Transcript PN758-9.
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