Kyle Ogden v Prestia Holdings Pty Ltd - [2022] FWC 2234

[2022] FWC 2234

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kyle Ogden
v

Prestia Holdings Pty Ltd

(U2022/3037)

DEPUTY PRESIDENT EASTON

SYDNEY, 22 AUGUST 2022

Application for an unfair dismissal remedy – valid reason not found – changes in approach to fatigue management requirements and company practice – no warning or notice about changes –– dismissal was unfair – remedy – compensation awarded.

Mr Kyle Ogden made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed from his employment with Prestia Holdings Pty Ltd.

Mr Ogden was employed by Prestia Holdings Pty Ltd (Prestia) as a licenced heavy vehicle dangerous goods driver from December 2020 until his dismissal in February 2022.

Prestia’s principal, Mr Sam Prestia, died suddenly on 18 January 2022 and his wife, Ms Naz Prestia, was required to take over the business. Prior to Mr Prestia’s death Ms Prestia had worked as the payroll officer for some time but was not otherwise involved in running the business.

On 7 February 2022 Mr Ogden sent an SMS to his supervisor, Mr Gunston, asking that certain documents be printed out for him at the start of his run, and indicated that he had received a driving infringement notice relating to alleged use of a mobile phone while driving outside of work hours.

The news of the infringement notice was passed on to Ms Prestia who then had a conversation with Mr Ogden. Mr Ogden was immediately stood down on pay and was given a show cause notice the next day.

Ms Prestia gave oral evidence of the conversation she had had with Mr Ogden on 7 February 2022 in relation to the infringement notice. She said she became very concerned about Mr Ogden’s “cavalier” approach to safety, based on what she says was a discussion between the two of them about the legality of “touching” a mobile phone whilst driving. Mr Ogden, she says, indicated to her that he thought certain conduct with the phone whilst driving was legal (or at least not illegal) but Ms Prestia says she was adamant that no driver can touch their phone whilst driving.

The show cause letter was issued the next day and it invited Mr Ogden to respond to three allegations – the infringement notice and two other matters. The show cause letter referred to a “serious and escalating pattern of misconduct”. The allegations put in the show cause letter were as follows:

“As you are aware there have been a series of incidents recently where you have failed to follow instructions including:

- On 18/01/2022 you breached instructions to contact the business after your last scheduled delivery and took it upon yourself to make further deliveries without communication which resulted in you going over hours, which is a breach of fatigue management laws, and
- On 18/01/2022 you were instructed to commence work at 1am instead you commenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 2234
Decision Date: 22 AUGUST 2022

CaseChat Overview and Summary

In the case of Kyle Ogden v Prestia Holdings Pty Ltd, Mr Ogden, a licensed heavy vehicle driver, sought a remedy for unfair dismissal under s.394 of the Fair Work Act 2009. His employment with Prestia Holdings Pty Ltd was terminated following a series of incidents, including an infringement notice for using a mobile phone while driving and allegations of fatigue management law breaches. The primary issue before the court was whether the dismissal was unfair and, if so, what remedy should be awarded.

The court considered whether there was a valid reason for dismissal related to Mr Ogden’s capacity or conduct. While there was evidence of fatigue management breaches and an infringement notice, the court found that these issues were not valid reasons for dismissal, given that the employer had previously tolerated similar conduct. Additionally, the court determined that Mr Ogden was not adequately notified of any changes in the company's expectations regarding fatigue management or safety protocols. The court also found that the dismissal process lacked procedural fairness, as Mr Ogden was not given clear warnings or opportunities to respond to the allegations against him.

Given these findings, the court concluded that Mr Ogden's dismissal was unfair. The court further determined that compensation was the appropriate remedy, as reinstatement was not feasible. The compensation was calculated using the Sprigg formula, considering factors such as Mr Ogden’s length of service, potential earnings, and efforts to mitigate losses. The court awarded Mr Ogden $15,645 in compensation, including an adjustment for the severance pay he would have received if his employment had continued until redundancy.

The final orders of the court mandated that Prestia Holdings Pty Ltd pay Mr Ogden the determined compensation amount, inclusive of superannuation, within 21 days of the decision.

Orders