Mr Andrew Giglia v Universal Concrete Construction Pty Ltd

[2010] FWA 3608

[2010] FWA 3608

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andrew Giglia
v
Universal Concrete Construction Pty Ltd
(U2009/13798)

COMMISSIONER ROE MELBOURNE, 6 MAY 2010

Termination of employment – misconduct.

[1] The matter arises from an application filed on 16 November 2009 under s 394 of the Fair Work Act 2009 (the Act) by Mr Andrew Giglia (the Applicant) for relief in respect to the termination of his employment from Universal Concrete Contractors Pty Ltd (the Respondent). The original application referred to the Respondent by a trading name Universal Concrete Constructions Pty Ltd.

[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a hearing.

[3] Directions were issued by Fair Work Australia and the matter was heard on 4 May 2010.

[4] At the hearing the Applicant represented himself and his partner Ms Giglia was present to support him and Mr J McKenna of counsel appeared with leave on behalf of the Respondent.

[5] The Applicant gave evidence. There was some contact between Fair Work Australia and the Applicant concerning the issue of other witnesses for the Applicant. The Applicant in his outline of submission received by FWA on 16 March 2010 requested that three persons be able to give evidence over the mobile phone. A fourth person was named as a witness but it was not clear how it was proposed that person would give evidence. Immediately upon receiving the file and becoming aware that there had been some telephone contacts between FWA, my Associate wrote to the Applicant concerning this matter as follows:

“The Commissioner notes your submission which you emailed to Fair Work Australia on the evening of 16 March 2010. The Commissioner has been advised that there has been some discussion between Fair Work Australia and yourself about the issue of witnesses for you at the proceeding on 4 May. We understand from the correspondence that Mr Mifsud will be in attendance but that you have requested Gary Pett, Andrew Sharp and Andrew Mcleod to be excused for attendance but be able to give evidence over their mobile phones.

Mesers Pett, Sharp and Mcleod are not able to give any direct evidence about the circumstances surrounding your dismissal but we understand that you would want them to give evidence of your driving ability, work habits and in Mr Sharp’s case about the likely cause of damage to vehicles.

Evidence which is given must generally be able to be tested through cross examination. That is the other side in the proceedings must be able to ask questions. If this does not happen the Commissioner may be able to have some limited regard to the statements a person makes but it would not be fair to put much value on the evidence if it has not been subject to cross examination. The only exception to this is if the other side does not require the witness to be cross examined. It is not possible to cross examine a witness over a mobile phone in a court room.

Therefore the Commissioner advises that you have the following options in respect to the evidence of Mesers Pett, Sharp and Mcleod.

1. You can ask them or some of them to come to court; or

2. You can ask Fair Work Australia, through me, to summons one or more of them to attend; or

3. You can put in statements signed and witnessed from one or more of them. Such a statement may have some limited value even if it is not subject to cross examination but it may be challenged by the other side; or

4. You can decide not to rely on any evidence from Mesers Pett, Sharp and Mcleod.

You will need to let us know what you intend to do in respect of this matter as soon as possible.”

[6] For the Respondent evidence was given by:

• Mr Steve Hulmes, a mechanic employed by the Respondent responsible for assessing and repairing the trucks some of which were driven by the Applicant.



• Mr Peter Sterjovski, a supervisor responsible for allocating work to the Applicant and front line supervision of his work.



• Mr Andrew Sirianni, managing director of the Respondent who made the decision to dismiss the Applicant.

[7] Each witness provided a written statement which was admitted into evidence and this was supplemented by further oral evidence and each witness was available for cross examination.

[8] During the proceedings the parties agreed and I am satisfied that:

• The Respondent is not a small business as it employs approximately 50 persons.



• There is no issue of redundancy.



• The Applicant had been employed continuously as a truck driver since 3 December 2008 and therefore his period of employment was in excess of the minimum period required under the Act. The Applicant was a full time employee working approximately 45 hours per week.



• The Respondent earned less than the high income threshold.



• The Applicant and the Respondent was at the time of the dismissal bound by the provisions of the Transport Workers (Mixed Industries) Award 2002.

The dismissal

[9] On 9 November 2009 the Respondent terminated the Applicant’s employment. The letter of dismissal 1 states

“Period of Service: December 2008 – October 2009. Universal Concrete Constructions Australia wishes to acknowledge your recent termination. This is your third incident involving damage to company plant, and it is with regret that we have terminated your employment. We would like to thank you for all your hard work and dedication to the company, and wish you all the best for the future.”

[10] The dismissal letter was signed by Andrew Sirianni, Managing Director. There is no doubt the dismissal solely related to the alleged poor performance by the Applicant of his driving duties leading to damage to the employer’s vehicles.

[11] The termination was a summary dismissal in that no notice was paid and the company submitted that it was for “serious misconduct”. There is no evidence that the Applicant was told at any stage that he was being dismissed summarily for serious misconduct.

[12] It is not contested that on 26 October 2009 the truck which was being driven by the Applicant was unable to be moved out of gear. On the same day the Applicant was told to leave the premises and await the outcome of an assessment by the mechanics whom the Respondent regularly utilised for major vehicle repairs, Dieselfix Victoria. The Applicant understood that if the damage to the vehicle was found to be his fault then he would be dismissed.

[13] The Applicant was, without his approval, paid his annual leave during the period he was told not to attend work.

[14] The Applicant contacted Mr Sirianni on a number of occasions after 26 October to inquire as to what was happening. On 10 November Mr Sirianni advised the Applicant by SMS that:

“you have been dismissed due to equipment negligence. This has been your third severe incident involving the damage and negligence to company plant. You have been paid your full entitlements according to the act…” 2

[15] The Applicant received the dismissal letter dated 9 November (which is quoted at paragraph 9 above) sometime after this.

The performance of the Applicant.

[16] The Managing Director, Mr Sirianni stated that:

“During his employment Mr Giglia was a diligent and enthusiastic employee who tried very hard to improve as an employee however he was unable to perform to the level of expectation required to drive a truck and trailer during within this organization.” 3

[17] The Respondent alleges that there were three incidents of poor driving practice which led to damage to company vehicles.

• Incident 1: in April 2009, the Applicant started a truck at 6am by reaching through the window of the cab in order to move that truck out of the way of the truck he needed to drive. The Applicant failed to get into the vehicle to check it was not in gear and with the handbrake on. The truck was in gear and it moved into the truck in front causing damage to the windscreen.



• Incident 2: in August 2009, the Scania truck which was being regularly driven by the Applicant became unserviceable and Dieselfix attributed this to damage to an air filter which caused dust to get into the engine resulting in the engine having to be rebuilt. The Respondent alleges that the damage to the airfilter was caused by the Applicant when he was cleaning it.



• Incident 3: in October 2009, the gear box failed on the Freightliner truck which was being driven by the Applicant which Dieselfix stated was due to driver error and which resulted in the dismissal of the Applicant.

[18] Witnesses for the Respondent also suggested that there were a couple of other incidents of poor driving practice. However, the evidence for this was vague and inconsistent. There is no clear evidence that these matters were raised with the Applicant. I don’t give these matters any weight particularly given the statement of the Managing Director quoted in paragraph 16 above.

[19] The Applicant concedes Incident 1 took place as described by the Respondent. It is conceded that the damage was relatively minor but the Respondent alleges that the practice of starting a truck whilst not in the driver’s seat is a serious risk to health and safety. The Applicant did not accept that the action was a serious OHS risk as he said the truck was only a couple of inches away from the truck in front and that starting the trucks in this way was common practice at Universal and that it was reasonable for him to assume that the previous driver had done the right thing and parked the truck in neutral with the handbrake on. There was no written warning. The Applicant concedes that the Managing Director yelled at him and called him an idiot but says that he was not told that it was a formal warning.

[20] I draw the following conclusions in respect to Incident 1. Considering the evidence of the Applicant and the Managing Director I doubt that there was a formal warning but the Applicant was in no doubt that the employer was very angry about his actions and that such actions should not be repeated. The actions of the Applicant were clearly wrong and a danger to the health and safety of others, and in my view justified a warning.

[21] The Applicant concedes Incident 2 took place to the extent that the Scania truck became unserviceable, the air filter damage was the cause, the truck engine had to be rebuilt and this cost the company approximately $13,000 in repairs and up to $15,000 in having to hire a replacement vehicle. 4 The Applicant says that he did not damage the air filter and that someone else must have done that, possibly another driver using the truck on a Saturday. The Respondent says that no one else drove the truck and that if someone else did drive the truck on a Saturday they would not have changed the air filter as it was the job of the principal driver to do that task every few months. Dieselfix provided a very short letter to the Respondent for the purposes of these proceedings, dated 13 April 2010.5 It stated:

“Checked why Engine breathing, stripped engine and found dusted, remove Air Cleaner, found air Cleaner damaged by driver, which has caused Engine breathing. Reco Engine.”

[22] This letter was signed by Mr Parissis, Director of Dieselfix. There was no suggestion that this report was written at the time of the incident rather it was submitted that it was prepared for these proceedings.

[23] There was conflicting evidence as to how much force would have been required to cause the damage to the air filter. There was no direct evidence of anyone observing the Applicant cleaning the air filter incorrectly or damaging the air filter. There was no suggestion that the Applicant deliberately damaged the air filter. The Applicant and Mr Hulmes said that to do the damage reported would have required considerable force not just dropping it whilst holding it close to the ground. The Applicant denied that he dropped the air filter and said that the process he used to clean it involved holding the air filter only a small distance off the ground. The Applicant said he cleaned the air filter every couple of months during the 8 months he drove the Scania truck.

[24] There is no doubt that the Applicant received a clear verbal warning from the Respondent in respect to Incident 2. There is no doubt that the Applicant has consistently and vociferously denied that his actions damaged the air filter. Mr Sirianni and Mr Sterjovski gave evidence that a written warning was drawn up 6 and that Mr Sterjovski attempted to give this warning to the Applicant and asked him to sign it. Mr Sterjovski says that the Applicant refused to sign the document and he did not take the document. Mr Giglia accepts that both Mr Sterjovski and Mr Sirianni blamed him for the damage to the air filter and that Mr Sirianni warned him but he denies that Mr Sterjovski ever attempted to give him a written warning or asked him to sign one.

[25] The Respondent gave evidence which was not contested that a memorandum dated 15 October 2009 was distributed to all employees of the Respondent. 7 The Respondent gave evidence that this occurred at least partly in response to Incident 2. The evidence of the Respondent was that this notice was distributed with the pay slips. The memorandum read as follows:

“It has come to our attention that some team members are becoming complacent with Universal Property. It is recognized that from time to time genuine incidents may occur, however in the event that an incident is caused due to negligence of any employee, costs will be re numerated back to the company. Please be advised that this memo is served as a warning to all team members.”

[26] There is no dispute that Incident 3 occurred. The evidence of the Respondent is that the damage cost more than $20,000 in repairs and hire of replacement vehicle. The evidence of Mr Sirianni was that on 9 November Dieselfix advised him that the damage to the gear box of the Freightliner truck which was driven by the Applicant for the previous two months was caused by driver error. Mr Sirianni said that he was told that it was the first three gears which were stripped off. He said that Dieselfix said that the damage was consistent with either a driver changing gears with the high low range changer in the wrong position and as a consequence moving to low numbered gear when intending to move to high numbered gear, or, as a result of starting with a jump in first gear.

[27] The Respondent tendered a letter from Diesefix dated 4 February 2010. This letter stated that

“Vehicle towed to Dieselfix by AAA Towing. Remove Gerabox and stripped, found auxiliary drive gear broken and mainshaft broken, caused by driver abuse as there was no wear and tear in gearbox, gears were broken with a clean cut. Management has ok’d Dieselfix for Repairs to this vehicle.”

[28] This letter was signed by Mr Parissis, Director of Dieselfix. There was no suggestion that this report was written at the time of the incident rather it was submitted that it was prepared for the conciliation conference in this matter.

Notification of reasons for dismissal and opportunity to respond

[29] The Applicant was given no opportunity to see the report of Dieselfix, nor was he given an opportunity to respond to the report prior to the termination. The Applicant did have the opportunity to speak to Mr Sirianni during the two week period between his “suspension” from normal duties and his termination. It is clear that the Applicant did not accept that the damage to the vehicle was his responsibility and this was clearly communicated to Mr Sirianni. 8

[30] There is no doubt that the Applicant was advised that dismissal was being contemplated by the employer as a result of Incident 3 and of the reason why dismissal was being contemplated. There is no doubt he was then subsequently advised of the dismissal and the reason for it.

[31] Mr Sirianni gave evidence that when he employed the Applicant, as was normal practice he ensured that he was given a document on company letterhead entitled “Job Description – Truck Driver”. 9 On the second page of that document there is a statement that:

“The company has a strict policy and warning structure. All warnings whether it is verbal and/or written will be assessed during your job performance. Should the employee reach 3 written or verbal warnings it is managements decision whether to terminate their employment or provide additional support and ongoing training.”

[32] The Applicant does not recall receiving this document.

Was the Applicant responsible for the damage to the vehicles?

[33] There is no dispute the Applicant was responsible for the minor damage done in Incident 1. However, he has vigorously and consistently denied responsibility for the damage in Incident 2 and Incident 3.

[34] The evidence of the Applicant was that the level of maintenance at Universal was very poor. He stated that “they disliked spending money to fix their equipment properly, arguing that it was always the driver’s fault.” 10 It was not contested that Mr Giglia made this very clear to the Respondent on a number of occasions during his employment. It is not something he has made up as a convenient excuse after the event.

[35] He wrote a letter to Mr Sirianni on 12 November 2009 immediately after his termination. 11 In that letter he said that “U don’t authorise the mechanics to fix things properly, but to “patch it up” instead.” In respect to the Freightliner which was the subject to Incident 3:

“Note, the first day I was given the go ahead to drive it, there was absolutely no oil in it, no water, no grease at all. It was also well over due for a service and who knows what else general wear and tear maintenance needed… If I didn’t say something straight away, who knows how much sooner I would have been fired. The list of things to fix, on that truck was ridiculous. But I was the last to drive it, so it was all “my fault” when it broke down.”

[36] It was not contested that the Applicant provided the Respondent in January 2009 with a three page list of faults with the Scania truck which he drove for approximately 8 months until Incident 2. 12 It was not contested that the Applicant provided the Respondent in September 2009 with a list of faults with the Freightliner truck that he drove for two months prior to Incident 3.13 I believe it is of significance that it states at the top of that list, “gears missing”. There was no dispute that this document was given by the Applicant to the Respondent some time before Incident 3. The Respondent in contrast relies on a report from Dieselfix produced several months after Incident 3 to contend that the gear box damage was solely caused by the Applicant’s poor driving practice.

[37] It is in my view unlikely that someone else damaged the air filter which Dieselfix say led to the damage to the Scania engine in Incident 2 during the period leading up to the incident. The Applicant was the only person who would have had cause to remove the air filter. However, I have no reason to disbelieve the Applicant when he says that he did nothing to deliberately damage the air filter and that he took care when cleaning the air filter and that he used compressed air to clean the filter not a process of banging it against the floor. I believe it is possible that the Applicant might have accidentally dropped the air filter when cleaning it. However, I am uncertain as to whether this would have been sufficient to cause the damage. The Respondent certainly believed that more force was necessary and that it must have been “slammed against the ground to rid it of dust”. 14

[38] It is possible that the air filter might have been weakened some time earlier by the action of someone else other than the Applicant. There was nothing conclusive put to me which would allow me to discount this possibility. Dieselfix was not available for cross examination and the evidence in the letter they provided some 8 months after the event was simply that the air filter was damaged by a driver. Dieselfix of course have no way of knowing who caused the damage all they are attesting to is that the air filter damage was consistent with human action and I accept this evidence.

[39] I found Mr Sirianni to be a credible witness but he had no direct knowledge of what led to the damage in Incidents 1 and 2.

[40] I found Mr Sterjovski to be an unreliable witness. In his statement 15 he said in respect to Incident 3 that “I issued Andrew with another verbal warning when he returned to the office. This was his final warning and I instructed him to leave the premises until further notice.” Mr Sterjovski, Mr Giglia and Mr Sirianni all conceded that in fact Mr Sterjovski did not issue a verbal warning in respect to Incident 3 and he was not in the office. Also in his statement Mr Sterjovski said in respect to Incident 2 that he was “informed by management to issue a second warning”. Yet it was the evidence of Mr Sterjovski in proceedings that he gave two warnings in respect to Incident 2: first he says that he gave a verbal warning and then subsequently he says he was asked by Mr Sirianni to give Mr Giglia a written warning and get Mr Giglia to sign in acknowledgement. Mr Giglia denies that Mr Sterjovski attempted to give him a written warning. Given the importance of this it is most surprising that Mr Sterjovski did not mention in his statement that he tried to give Mr Giglia a written warning and to get him to sign it and that Mr Giglia refused to accept it.

[41] Mr Hulmes in his statement lists five matters concerning damage to vehicles due to driver behaviour involving the Applicant. He says “on review of his file the following issues were brought to management attention” and then lists the five matters. 16 In proceedings Mr Hulmes confirmed that he only had direct knowledge of two of these incidents. The other three incidents which he conceded he did not have any direct knowledge or involvement in were Incidents 1, 2 and 3. The two incidents which he says that he had involvement in were “crunching gearbox and shuttering truck resulting in tail shaft to pop out” and “reversing over draw-bar causing ring feeder to wear and replacement of draw bar”.17 However, in proceedings he said that the first incident was in fact not tail shaft popping out but “range change failing”. There is no similarity between these two things. In respect to the second incident when it was put to him by the Applicant that the Scania truck did not have a ring feeder on it he conceded this and said it was in fact a “bartlett ball”. I therefore, as I found at paragraph 16 above, don’t think that any weight can be given to the evidence about these two alleged incidents. Mr Hulmes also says that he was concerned about the Applicant’s driving ability as he “was constantly hearing grinding of gears and/or missing gears when he left the premises in the morning”. This may be the case but it could also be consistent with what Mr Giglia says were problems with the vehicles which had not been maintained.

[42] The Applicant was generally a credible witness. However, I am not convinced that his judgment and memory is always reliable. I note his failure to acknowledge the inappropriateness of starting a truck whilst not in the drivers seat (incident 1). I also note that during the proceedings he at first denied he had received the termination letter 18 but then realised that in fact he had received it. I put this down to some general confusion and the intimidating nature of representing himself in the Tribunal. I believe he was focused on maintaining his denial of the fact that he had received any written warnings. I therefore take nothing from this incident except that it does show that his memory might not be totally reliable. Mr Giglia understandably feels his dignity has been offended by the dismissal and the allegations against him.

[43] The Respondent raised another inconsistency in the Applicant’s evidence. In his letter to Andrew Sirianni of 12 November 2009 19 Mr Giglia stated that:

“Now this incident with the Freightliner jamming in 1st gear. I only drove it less than 2 months, it was a pleasure to drive that Freightliner, every gear went in “smooth as butter”. Why did it jam on me? I have no idea, nor what the previous drivers were like, how rough, whatever…….”

[44] This seems to contradict the Applicant’s statements that there were problems with the first gear on the Freightliner. However, he goes on in the letter as I have noted earlier to talk about the poor maintenance practices on the Freightliner and more generally so I don’t think too much can be made of this. Mr Giglia did say in his evidence that compared to the Scania the Freightliner was a pleasure to drive and the gears were good apart from the first gear. Furthermore, it is not contested that he complained about the first gear on the Freightliner soon after he was allocated the vehicle.

[45] The Applicant’s evidence that the lists of defects on the vehicles was generally ignored is somewhat undermined by evidence that the problem with the first gear on the Freightliner was looked at and no fault with the gears could be found.

Was there a valid reason for summary dismissal?

[46] The Applicant claims that the Respondent treated other incidents of damage to vehicles quite differently to the way he was treated. He gave some examples of where other employees were not subject to any consequences for damage to vehicles. 20 Given that the Tribunal has not had before it evidence to show who was responsible for the incidents involving other drivers I do not believe that this has much effect on the fairness or otherwise of the treatment of the Applicant.

[47] The Applicant was dismissed summarily. There is no suggestion that the Applicant deliberately damaged the company property or that he seriously disobeyed lawful instructions. In fact the Managing Director, Mr Sirianni said he was:

“a diligent and enthusiastic employee who tried very hard to improve as an employee however was unable to perform to the level of expectation to drive a truck and trailer during within this organization.”

[48] The Fair Work Regulations 2009 define serious misconduct for the purposes of the Act.

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

[49] There is nothing in subregulation 2(a) or in subregulation (3) which is relevant to this case. There is no suggestion of wilful or deliberate behaviour in Incident 3. Counsel for the Respondent submitted that the conduct was such as to cause serious and imminent risk to the reputation, viability or profitability of the employer’s business. The single event, Incident 3, could not fairly be described as causing serious and imminent risk to the viability or profitability of the business. There was no evidence presented to support such a proposition. This is a medium sized business and although having a truck needing repair and temporary replacement is expensive and could not be tolerated if it was repeated regularly a single incident of this sort did not cause serious and imminent risk.

[50] Serious misconduct is action which makes the employment of a person during the notice period unreasonable. This is not the case even if Incident 3 is looked at in the context that there were two earlier warnings for driver action causing damage to vehicles.

[51] It is not suggested that the actions of the Applicant caused serious and imminent risk to the reputation of the employer. There was no evidence or submission presented of any complaints or of any possible consequences for the reputation of the business.

[52] There was nothing in the behaviour of the Applicant apart from Incident 1, which was many months earlier, that was suggested to be putting health and safety at risk. The conduct in Incident 3 was not submitted to be reckless or deliberate. The conduct could not be said to cause serious or imminent risk to health and safety.

[53] I therefore find that there was no valid reason for summary dismissal.

Was there a valid reason for dismissal with notice?

[54] However, there may have been a valid reason for dismissal with notice.

[55] The employer was clearly concerned about the driving ability of the Applicant. The employer did warn the Applicant arising from two previous incidents. The first warning was clearly for a valid reason. The second warning was for a valid reason but there is some doubt about the extent to which the Applicant should be held responsible for the damage given the troubling aspects of the evidence which I have canvassed. The memorandum of October 15 where employees generally were warned about damage to property should also be given some limited weight. A question to be considered is whether or not, in the context of the previous behaviour of the Applicant, Incident 3 provided sufficient evidence of poor driving performance which warranted dismissal rather than a final warning and a further opportunity to improve performance.

[56] The Respondent’s own policy 21 includes the option of “additional support and ongoing training” in response to a third incident of poor performance. This clearly implies that the employer would provide support and where relevant training provided in response to the first two incidents. There was no evidence at all or submission that suggested that the Respondent had done anything to provide the Applicant with remedial instruction in driving to correct the faults they claim to have existed with his driving ability.

[57] On balance I believe that there would be a valid reason for dismissal with notice in the circumstances of this case if it can be established on the balance of probabilities that the damage to the gear box in Incident 3 was caused by a failure of performance by the Applicant. I say this given the economic loss such behaviour caused to the employer.

[58] The Respondent did not call the mechanic who examined the Freightliner gear box to give evidence. There was hearsay evidence from Mr Sirianni about what Dieselfix had said to him about the cause of the damage at the time of the dismissal. There was a written report from Dieselfix some months after the incident saying that it was caused by driver abuse but not giving any detailed explanation. Dieselfix said that it:

“found auxiliary drive gear broken and mainshaft broken, caused by driver abuse as there was no wear and tear in gearbox, gears were broken with a clean cut.”

[59] I am satisfied that the employer sought a report from a separate firm, Dieselfix as to the cause of the gear box damage. The evidence of the Managing Director and the Applicant is that the Managing Director said that he would not dismiss the Applicant unless Dieselfix confirmed the damage was caused by the Applicant. I am satisfied that the Managing Director believed that is what Dieselfix told him. He believed that what they had found confirmed the Applicant’s responsibility. He believed that the damage was caused by a single incident at the time that the gear box failed. Dieselfix told him that the absence of wear and tear in the gearbox and the fact that the gears were broken with a clean cut was evidence of this.

[60] On the other side of the equation I am convinced that what Dieselfix told Mr Sirianni was what Mr Sirinanni wanted to hear. For this reason Mr Sirianni did not ask further questions. He did not ask further questions of Dieselfix to eliminate the possibility that the damage was not caused solely by the Applicant’s poor driving skills or performance but that other factors may have contributed.

[61] I was not satisfied that other possibilities such as metal fatigue or that the particular gears that were broken had been damaged or weakened by the negligence of earlier drivers or that a fault with some other instrument such as the hi/lo gear switch could be reasonably excluded or whether poor maintenance or lubrication contributed to the incident occurring. This could only be done by getting evidence from someone who actually examined the damaged gear box after the event and had the relevant technical expertise. I was not satisfied that the actions of the Applicant were the only possible explanation for the damage.

[62] If there had been an opportunity to cross examine a person who actually examined the gear box I might then have been able to establish whether such alternative explanations were only a remote possibility or if they were probable explanations. In the absence of such an opportunity I have to rely on the evidence before me. One reason why I could not dismiss such alternative possibilities without some further evidence is because the Respondent did not provide a response to the evidence of the long list of maintenance problems with the Freightliner and Scania vehicles that were the subject of Incident 2 and 3, presented by the Applicant to the Respondent, which the Applicant says were not properly or promptly attended to.

[63] I think it is a fine balance. I believe that the concerns of the Applicant about the maintenance priorities of the Respondent have some basis. I believe that the Applicant did advise of problems with the first gear of the truck shortly after he began driving it and a considerable period before the failure of the gear box. I believe that the Respondent took no steps to provide instruction or training to rectify perceived problems with driving ability. I believe it is possible that other factors may have contributed to the gear box failure. However, the strongest and most concrete evidence is the evidence of Mr Sirriani and of Dieselfix that the damage was not caused by wear and tear and was caused by driver abuse. This makes it more likely that it was caused by recent driving and therefore by the actions of the Applicant. The mechanic Mr Hulmes did not examine the damage to this particular gear box but he gave evidence that in his opinion that the amount of damage reported without evidence of wear and tear meant that the damage could not have occurred several months ago. He said “you would have heard it or the truck wouldn’t have moved a lot earlier.” 22 In summary I find on the balance of probabilities that the employer had a valid reason to dismiss the Applicant because he had independent evidence that his poor driving skills or performance led to the gear box failure in the context that there had been previous warnings about this mater.

[64] However, as I have found earlier there was not a valid reason for summary dismissal. The summary dismissal was unreasonable, unjust and unfair. In addition I believe that the failure to allow the Applicant to respond to the report from Dieselfix which led to the dismissal was a serious and material failure of process. I say this because if the Applicant had had the opportunity to see and respond to the report it might have led the employer to then have a responsibility to consider other possible reasons for the failure of the gear box. Such further inquiries in order to eliminate those reasons might well have revealed that there were other reasons which contributed to the gear box failure. This would have meant that a valid reason for dismissal no longer existed. For these reasons I find that the dismissal was unreasonable, unjust and unfair.

Other criteria in Section 387

[65] I have found that the Applicant was notified of the reason for dismissal. (Section 387(b) of the Act).

[66] I have found that the Applicant was given some opportunity to respond to the reason for dismissal which did relate to his capacity or conduct (Section 387(c) of the Act). However, as discussed above the reason for the dismissal was clearly to be found in the technical report from Dieselfix and the Applicant should have been provided with a copy of this and had an opportunity to respond to it. The failure to do this was a significant failure of procedural fairness as it could have altered the outcome for the reasons detailed above.

[67] I find that there was no evidence in the proceedings that the employer unreasonably denied the Applicant a support person (Section 387(d)).

[68] I find that the Applicant was previously warned about the unsatisfactory performance that led to the dismissal – that is poor driving practice leading to damage to the company vehicles. The Applicant was not specifically told that such action could lead to dismissal. However, I do not have find that this factor is sufficient to make the dismissal harsh, unjust or unreasonable (Section 387(e)).

[69] The size of the employer is not one I found had an impact on the procedures followed (Section 387(f)).

[70] The Respondent did not have a dedicated human resource manager but I do not believe that this had a significant effect on the procedures followed in this case (Section 387 g)).

Remedy

[71] Neither the Applicant nor the Respondent, seek reinstatement as a remedy. In all of the circumstances I find reinstatement to be inappropriate. The relationship of trust is not able to be restored. In all of the circumstances I find that an order for compensation is appropriate.

[72] The factors I take into consideration in determining compensation are:

• The uncontested evidence of the Applicant that he was unemployed for a period of five weeks (8 November to 16 December).



• The fact that the Applicant did not receive one week’s notice to which he was entitled given that there was no proper basis for summary dismissal.



• The fact that the Applicant was put on annual leave without his consent during the two week period between the incident which led to the dismissal and the actual dismissal. I do not believe that this action was reasonable or open to the employer under the Award.



• The uncontested evidence of the Applicant that his current employment is on a casual basis but that he has a reasonable expectation it will become permanent. It was his evidence that his new employer is very happy with his driving abilities and work performance.



• The uncontested evidence of the Applicant that his earnings, excluding overtime, with casual loading are similar to his previous earnings excluding overtime. He is working less overtime at the moment but he expects that he will get more overtime in the future. He did not receive any social security payments. Therefore I conclude that when the Applicant becomes permanent with his new employer he will be earning approximately 25% less than he was with the Respondent.



• The Applicant was employed for almost one year. I don’t find that the length of service affects the appropriate compensation level in the circumstances of this case.



• I find that it is unlikely that the Applicant’s employment with the Respondent would have continued given that there was a valid reason for dismissal. Some reasonable time for the Applicant to respond would have been required prior to dismissal and the employer would then need some limited time to consider the response. In the event that the Applicant’s response led to the dismissal not being valid then it is unlikely that the employment would have continued for more than a few months. I think it is clear that the Applicant’s supervisor was hostile to him and the Respondent with some basis lacked confidence in his driving ability.

• I find that the Applicant did mitigate the loss he suffered in that he did look for and found work within a reasonable period.



• The Respondent is a medium sized enterprise and my order will not affect the viability of the Respondent.



• The Applicant’s own behaviour, did contribute to the situation in which he found himself and the lack of confidence the employer had in his driving abilities.

[73] Taking these factors into consideration and the principle of a fair go all round I order a payment of four weeks compensation. This includes allowance for: one week’s notice and two week’s annual leave. This amounts to $3,496.00 gross. This is based upon a 38 hour week and the Applicant’s hourly rate on his last pay slip which is shown as $23 per hour. The amount should be paid within two weeks of this decision. The Respondent is at liberty to apply for a variation to this time period.

COMMISSIONER

Appearances:

Mr McKenna for the Respondent.

Mr Giglia represented himself.

Hearing details:

2010

Melbourne

4 May

 1   Exhibit M3.

 2   Exhibit M2.

 3   Exhibit M4.

 4   Exhibit M7 and evidence of Mr Sirianni.

 5   Exhibit M6.

 6   Exhibit M8.

 7   Exhibit M1.

 8   .Mr Sirianni states this in his statement, Exhibit M4.

 9   Exhibit M5.

 10   Exhibit G1.

 11   Exhibit M2.

 12   Exhibit G2.

 13   Exhibit G2.

 14   Exhibit M11 – evidence of Steve Hulmes.

 15   Exhibit M10.

 16   Exhibit M11.

 17   Exhibit M11.

 18   Exhibit M3.

 19   Exhibit M2.

 20   Exhibit G1.

 21   Exhibit M5.

 22   PN959.

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