Michael Collins v Elfbill Pty Ltd t/a Alfies Towing

[2017] FWC 5785

[2017] FWC 5785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Collins
v
Elfbill Pty Ltd t/a Alfies Towing
(U2017/6850)

COMMISSIONER SIMPSON BRISBANE, 9 NOVEMBER 2017

Application for an unfair dismissal remedy – Out of time objection – Application within time - Small Business Fair Dismissal Code objection – Contested evidence concerning conversation on 6 June – Evidence of Respondent witness preferred – Employer complied with Code – Application dismissed.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Michael Collins who alleges that the termination of his employment with Elfbill Pty Ltd t/a Alfies Towing (Alfies Towing) was unfair. The originating application did not correctly identify the legal name of the respondent, however it was agreed by the parties at the commencement of the hearing of the matter that the correct legal name is as has been identified above and I have proceeded on that basis.

[2] Mr Collins commenced employment at Alfies Towing on 3 July 2009 as a driver until his dismissal on 6 June 2017. Mr Collins submitted in his application that the reasons given for his dismissal included unsatisfactory work performance and misconduct as an employee. Mr Collins submitted he was not offered counselling in the matter, nor did he receive any written warnings, and that he had been employed at Alfies Towing for nine years.

[3] Alfies Towing raised an initial jurisdictional objection that the matter was filed out of time. This objection was dismissed during a directions hearing on 15 September 2017 as it was apparent the application was filed on the last day within time.

[4] Alfies Towing also raised a jurisdictional objection on the basis it was a Small Business under the Small Business Fair Dismissal Code and complied with the Code. Alfies Towing submitted it had a reasonable belief that Mr Collins had engaged in serious misconduct on 5 June 2017, due to the “unsafe and illegal way” in which Mr Collins had secured three vehicles on a car carrier. It was not disputed that Alfies Towing was a small business at the time of termination and on that basis I am satisfied the Small Business Fair Dismissal Code applies.

[5] The matter was listed for a non-compliance hearing on 20 October 2017 when Alfies Towing advised the Fair Work Commission (FWC) that Mr Collins had not filed any material as required by the directions. Alfies Towing requested that the FWC dismiss the application on that basis. Given Mr Collins was self-represented and served some material on the FWC but not on the respondent it was determined to amend the directions. Given the narrow scope of the matters in dispute it was also determined that the hearing would proceed by telephone on 6 November 2017.

[6] Mr Collins was the only witness to give evidence in his case, and Mr Di Salvo the only witness for Alfies Towing. Neither witness filed a witness statement as such. Mr Collins’ material went to his earnings including a tax file number declaration, a document setting out what Mr Collins explained was his hours of work in the two weeks prior to dismissal, tax returns over a number of years, a PAYG summary, a letter concerning his earnings dated 30 July 2013 and copies of pages from his daily work diary.

[7] Alfies Towing filed a letter from Mr Di Salvo which stated that the business had been operating since 2006, and employed up to six employees. Alfies Towing currently has two tilt tray tow trucks, one four car carrier, and one seven car carrier.

[8] Alfies Towing is the Cairns agent for multi-national company CEVA Logistics, and work for CEVA comprises 75% of Alfies Towing work, the balance being made up of transportation of vehicles for the major car dealers in Cairns and Pickles Auctions in Townsville.

[9] The letter also said that Alfies Towing has always had a policy of a minimum of three wheel straps on each vehicle for highway use, preferably four wheel straps, and for local transportation a minimum of two wheel straps diagonally. The letter said that this is also the policy of CEVA and Pickles Auctions, and Mahhiem Auctions. Alfies Towing also provided a document headed ‘Damage History Michael Collins’ and listed dates when it was said Mr Collins was responsible for vehicles being damaged.

[10] Alfies Towing also filed a document which was a policy of CEVA titled ‘Vehicle Logistics Load Restraint Procedure’. The introduction of the document states as follows;

“The procedures describe the processes by which vehicles are to be restrained on CEVA Logistics Contract Carriers (Vehicle Distribution). Contract Carriers and their nominated drivers and Authorised Personnel are responsible for complying with these procedures at all times when securing vehicles for transport.”

[11] Clause 2 of the Procedure includes the following;

“2.1.2 Straps on single decked Carriers

Metro

Tilt trays/one car Carriers three straps. Two car Carriers and above – Three straps to back car.

Rural – Three straps to overhead (4 carriers) and back vehicle.

Long – haul – Three straps to overhead (4 car carriers) and back vehicle.

All other vehicles are to have two straps diagonally opposed.

2.2 The lashings must be located on diagonally opposite corners of the vehicle – unless specifically otherwise approved.”

[12] Alfies Towing also filed a document titled ‘Legal Requirements for keeping work diary records.’

[13] Mr Collins stated on a number of occasions in the course of the directions hearings and the hearing itself that the application would be resolved if Mr Di Salvo would agree to pay his long service leave entitlement. It became apparent that Mr Collins maintained his entitlement to be paid pro-rata long service leave on termination was frustrated by his dismissal for alleged misconduct. It also became apparent that Mr Collins believed that Alfies Towing’s true motivation for dismissing him was to avoid having to pay him long service leave. Mr Collins explanation for this was that he had raised the matter with a Mr Craig Lynch who worked for Alfies Towing the week before his termination. Mr Di Salvo gave evidence that he was unaware of Mr Collins having raised an entitlement to long service leave until a week after the termination.

Incident 5 June 2017

[14] Mr Collins gave oral evidence that on the 5 June 2017 he was transporting vehicles on a Car Carrier from Townsville to Cairns. He said he had secured the cars on the Car Carrier adequately. Mr Collins said he had been doing that run for approximately three years without there ever being an issue. Mr Collins submitted that issue about how the vehicles were secured was only raised when word got around that he was seeking to claim his long service leave.

[15] Mr Collins submitted that at approximately 5:30pm he parked the vehicle carrying the cars out in the open, where it was left outside overnight. Mr Collins submitted there had been previous incidents with things being stolen from trucks left outside. Mr Collins submitted that the following morning, Mr Di Salvo told Mr Collins “you’re out, it’s all over, you only had two straps on.” Mr Collins submitted there was no other conversation. Mr Collins submitted anything could have happened to the truck that night while left outside overnight.

[16] Mr Collins gave evidence that it is possible for a load to be carried with two straps. Mr Collins submitted that while working for Mr Di Salvo he had always used four straps on the car. Mr Collins submitted he has never previously been fined by the Department of Transport for unsecure straps, and submitted diary notes to support this submission.

[17] Mr Di Salvo submitted that on 5 June 2017 Mr Collins got back sometime that afternoon and left the vehicle with the load on it before going home. Mr Di Salvo submitted he needed to use the truck that night to do another job, so he unloaded it himself which is when he discovered the cars only had two straps. Mr Collins accepted that it was possible Mr Di Salvo unloaded the truck that evening.

[18] Mr Di Salvo submitted two straps are only permitted for local jobs providing the driver does not exceed 60 km an hour. Mr Di Salvo further submitted that if only two straps are used they must be secured diagonally, not across the same axle. Mr Di Salvo submitted Mr Collins had secured the two straps across the same axle. Mr Di Salvo also submitted that as the job Mr Collins performed required driving from Townsville to Cairns on the Bruce Highway, it required a minimum of three straps as per the policy.

Was Mr Collins made aware of policy?

[19] Mr Di Salvo submitted that Mr Collins was shown personally by Mr Di Salvo how to correctly secure the load using a minimum three straps on the first day he drove the four Car Carrier. He concedes Mr Collins was never shown a copy of the policy, though Mr Collins was well aware of it.

[20] Mr Collins again gave evidence that he always uses four straps while doing long distance, and around town it would usually be three straps. Mr Di Salvo submitted this is evidence Mr Collins was clearly aware of the rules and regulations.

[21] When asked whether he had four straps on the vehicles on 5 June, Mr Collins said he would have had three straps. Mr Collins submitted that the three straps would have been two on the back over the tyres and one on the front. Mr Collins agrees the straps were not applied diagonally though that is acceptable.

[22] Mr Di Salvo submitted that at no point until the day of the hearing did Mr Collins dispute that he only used two straps. Mr Di Salvo submitted that Mr Collins had in fact argued with him that there was nothing wrong with using two straps, and this was in fact the reason for his dismissal.

Conversation morning 6 June 2017

[23] Mr Di Salvo submitted that on the morning of 6 June he said to Mr Collins words to the effect of they needed to “sit down and talk” or “we have to have a talk”. Mr Di Salvo claimed the conversation was lengthy. He submitted he put it to Mr Collins that the cars on the carrier only had two straps. Mr Di Salvo submitted that Mr Collins responded that there was nothing to worry about because the cars had not been lost.

[24] Mr Di Salvo submitted he explained to Mr Collins that this was not the point, and Alfies Towing would not be covered by insurance and that someone could have been hurt or died. Mr Di Salvo submitted Mr Collins said he was “making a mountain out of a mole hill” because there had been no damage caused. Mr Di Salvo gave evidence to the effect that he may not have dismissed Mr Collins but for the fact that Mr Collins wanted to argue about the issue and did not accept the requirement to follow the Procedure. Mr Di Salvo submitted he told Mr Collins this was not good enough and at that point told Mr Collins that it was time for them to part ways.

[25] Mr Collins disputed this conversation occurred and submitted there was only a brief exchange between himself and Mr Di Salvo whereby Mr Di Salvo told him to leave, using words to the effect of “Your out of here”. He denied that Mr Di Salvo raised the issues concerning his load at that point.

[26] Mr Collins submitted that the real reason for his dismissal was because he had raised with office staff that he was intending to claim his long service leave, and Mr Di Salvo was looking for any way to push Mr Collins out of the business. Mr Di Salvo submitted he was not even aware Mr Collins was entitled to continuous service.

[27] Alfies Towing submitted that if Mr Collins had not been dismissed, it would only be a matter of time before there would have been a serious avoidable accident.

Conclusion

[28] It was common ground that the dismissal was a summary dismissal. The Code reads as follows in regard to dismissal without notice:

“Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

[29] A dismissal cannot be found to be unfair if the employer complies with the Code. The Commission does not have to make a finding on the evidence that the conduct occurred. 1 The Commission needs to find whether the employer had a reasonable belief that the conduct of the employee was serious enough to warrant immediate dismissal. It is not necessary for the Commission to determine whether the employer was correct in the belief that it held.2 Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived misconduct and pay regard to the explanations and views given by the employee.3

[30] Mr Di Salvo gave evidence that he is 57 and has been self-employed for most of his working life. He claimed Mr Collins is the first person he has had to dismiss. Mr Collins disputed this. It was apparent from the evidence of both Mr Collins and Mr Di Salvo that they have known each other, and worked with each other for a long time. Mr Di Salvo said that Mr Collins had been a friend.

[31] I explained to Mr Collins and Mr Di Salvo, who are the only two witnesses to the exchange on the morning of 6 June that I would be required to determine on the balance of probability whose version I prefer. I am inclined to accept Mr Di Salvo’s version.

[32] Mr Collins’ version is less plausible. Mr Collins’ version that Mr Di Salvo would simply dismiss him with no discussion seems unlikely given the lengthy relationship between the two men. Mr Collins’ premise is that it can be explained by Mr Di Salvo being motivated by Mr Collins raising the prospect of a long service leave entitlement. The evidence of Mr Collins was that he raised this with another employee, not directly with Mr Di Salvo, and there is no direct evidence to controvert Mr Di Salvo’s evidence that he was not even aware of the issue until after the termination. Mr Di Salvo’s evidence was to the effect that he did not understand that Mr Collins was entitled to the long service leave in any event. Whilst the long service issue is not the issue before me, it would appear from the evidence Mr Collins is likely to have had continuity of service as a casual employee and would otherwise appear to have been likely to have an entitlement to pro-rata long service leave if it were to be found he was unfairly dismissed.

[33] Mr Di Salvo’s evidence was consistent concerning his claim that the issue was only ever in connection with the fact that he had discovered the vehicles had not been safely secured on the Car Carrier by Mr Collins. It seems less likely that he invented the issue as a concocted excuse to dismiss Mr Collins to avoid having to pay long service leave at some point in the future, or that he made up the allegation that the cars had only been secured with two straps when this was not true. It also seems odd that Mr Collins’ originating Form 2 application makes no mention of a claim that he did in fact secure the cars in accordance with the correct Procedure and that Mr Di Salvo invented an allegation that he did not if this was in fact what occurred. In response to the question why the dismissal was unfair, Mr Collins has simply written in his application that there were no counselling or written warnings.

[34] Having considered the available evidence I prefer Mr Di Salvo’s version that he found the vehicles on the Car Carrier driven by Mr Collins were secured in a manner that did not conform with the policy of Alfies Towing or its major clients required Procedure, and further proceeded to open a conversation with Mr Collins about that issue the next morning on the basis that he believed on reasonable grounds that Mr Collins did not comply with the Procedure.

[35] I am satisfied that the issue itself could be properly regarded as sufficiently serious to warrant dismissal given I accept the evidence that Mr Collins was well aware of the requirement to comply with the Procedure for highway travel. Having preferred on balance Mr Di Salvo’s version of the conversation on the morning of 6 June, I am fortified in my view that Mr Di Salvo was entitled to believe on reasonable grounds that Mr Collins conduct was sufficiently serious to justify immediate dismissal because Mr Collins did not accept Mr Di Salvo’s characterisation of the matter as serious in the course of their conversation on the morning of 6 June.

[36] To the contrary Mr Collins characterised Mr Di Salvo’s view as “making a mountain out of a mole hill”. It is unarguable that a failure to secure a vehicle safely on the back of a Car Carrier travelling on a major highway for approximately 350km between Townsville and Cairns is a serious breach of a safety procedure. Mr Collins has given evidence that in his view the vehicles were safely secured, but for reasons set out above I have preferred the evidence of Mr Di Salvo that they were not secured in accordance with the Procedure, and therefore not secured safely.

[37] Mr Collins refusal to accept his employer’s stated position that the vehicles were not secured safely to my mind puts beyond doubt Mr Di Salvo’s entitlement to dismiss Mr Collins without notice or warning. That is so because Mr Collins refusal to accept the serious nature of the issue and his stated view that the manner he transported the vehicles was safe, satisfied Mr Di Salvo on reasonable grounds that the combination of Mr Collins conduct on 5 June and his responses to Mr Di Salvo on 6 June were indicative of a real potential for him to repeat the conduct if he continued in employment.

[38] On the basis of the findings set out above Alfies Towing dismissal of Mr Collins complied with the Small Business Fair Dismissal Code and therefore the application is dismissed.

COMMISSIONER

Appearances:

Mr M. Collins appearing on his own behalf

Mr A. Di Salvo appearing on behalf of Alfies Towing

Hearing details:

2017,

Brisbane:

November 6

 1 Pinawin v Domingo (2012) 219 IR 128 [27] and [29]

 2 Pinawin v Domingo (2012) 219 IR 128 [29]

 3 Pinawin v Domingo (2012) 219 IR 128 [38]

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