Mr Christopher Kohen v Linfox Australia Pty Ltd

[2015] FWC 3967

[2015] FWC 3967

FAIR WORK COMMISSION

DECISION

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

Mr Christopher Kohen
v
Linfox Australia Pty Ltd
(U2015/3844)

COMMISSIONER BULL SYDNEY, 16 JUNE 2015

Application for relief from unfair dismissal, loss of driver’s licence, inherent requirement of position, application dismissed.

[1] This matter was heard in Sydney on 4 June 2015. At the conclusion of the hearing, I advised the parties that I would hand down my decision on transcript the following day, 5 June 2015. This is the published version of the transcript decision edited for style and clarity.

[2] In this matter, the applicant Mr Christopher Kohen alleges he was unfairly dismissed by his employer, Linfox Australia Pty Ltd (Linfox). The applicant was represented by Mr Arjonilla from the Transport Workers' Union of Australia, New South Wales Branch (TWU), and the respondent by Mr Leon an in house lawyer.

[3] The applicant was employed as a truck driver for Linfox on a full-time basis, since 2004, prior to which he worked as a casual driver for the respondent since 1999. The applicant worked on the respondent's Lion Dairy & Drinks contract operating out of its Hexham, New South Wales site.

[4] The termination of the applicant’s employment arose due the loss of his driver's licence, which is an essential requirement for him to perform his job as a truck driver.

[5] Mr Kohen seeks reinstatement and lost wages.

Background

[6] The applicant’s loss of licence came about when he drove his private vehicle outside of working hours on the evening of Thursday, 15 January 2015.

[7] At approximately 10pm that evening, after having been pulled over by the police Mr Kohen provided a prescribed concentration of alcohol reading, (PCA), of 0.1 at the local police station. The applicant’s driver’s licence was immediately suspended.

[8] Mr Kohen was due to commence his duties as a truck driver with Linfox the following morning (16 January 2015) at 4am.

[9] Mr Kohen contacted his supervisor and advised of his circumstances and that he would not be able to attend work. Mr Kohen then applied for and was granted annual leave.

[10] On 20 January 2015, the applicant requested a meeting with Linfox management to explain his circumstances and how he believed he could remain in employment.

[11] The requested meeting was held on 4 February 2015; in attendance with the applicant was Mr Grant Rodger an official of the TWU. For Linfox, Mr Russell Grant the Operations Manager for the Lion (Dairy) business based at its site in Penrith, New South Wales; and Mr Rob Dalton, a HR advisor.

[12] At the meeting, Linfox advised that no action would be taken until the outcome of the court case of the applicant’s PCA charge was known. Mr Kohen was advised by Linfox that termination of employment may be an outcome following his court appearance.

[13] During the meeting, Mr Kohen asked Linfox to take into consideration the circumstances of other drivers who had licence suspensions and remained in employment on the basis they were able to take leave during the period of their licence suspension.

[14] Mr Kohen appeared before the East Maitland Local Court on 11 February 2015, where he pleaded guilty to driving with a mid-range PCA. His driver's licence was suspended for a period of 8 months. The 8 month suspension expires on 15 September 2015.

[15] Mid-range PCA applies to drivers with a blood alcohol concentration of between 0.08 and 0.149 grams per 100 millilitres.

[16] Following the conviction of Mr Kohen a meeting was arranged with Linfox management to be held on 20 February 2015.

[17] At the meeting of 20 February, the applicant was supported by Mr Rodger, who requested that Mr Kohen serve out his suspension on leave or be re-deployed during the period of suspension.

[18] After listening to Mr Rodger’s request made on behalf of Mr Kohen, Linfox management contacted the respondent’s Melbourne office and shortly thereafter advised Mr Kohen that his employment would be terminated.

Applicant’s submissions

[19] The applicant provided a witness statement and gave evidence which was subject to cross-examination.

[20] Mr Grant Rodger, (TWU), also prepared a written statement and gave evidence on behalf of the applicant.

[21] Mr Arjonilla, from the TWU, submitted that there was no valid reason for Mr Kohen's termination and that the dismissal was harsh, unjust, or unreasonable. It was submitted that Mr Kohen was an active member of the TWU which operated to his prejudice. The applicant was a union delegate and had previously been a health and safety representative. It was further submitted that the suspension of the applicant's driver licence was not an ongoing impediment but for a fixed, known and temporary period.

[22] It was submitted that Mr Kohen’s work performance was not at issue, having had a long exemplary employment record with the respondent. It was further submitted that other employees with suspended licences had been accommodated by Linfox without termination of their employment.

[23] It was submitted that Mr Kohen’s dismissal was unfair as alternative employment that did not require a driver's licence was not considered by Linfox and that Mr Kohen had been open and forthright regarding his loss of driver's licence and the circumstances surrounding the evening of 15 January 2015.

[24] It was also submitted that Mr Kohen was contrite in that the circumstances involved a one-off, out of character event, particularly considering Mr Kohen's commitment to occupational health and safety.

[25] Reinstatement was sought on the basis that the 8 month suspension period could have been served by a combination of paid and unpaid leave, including long service leave on half pay, or by re-deployment to a non-driving position.

[26] It was put that Mr Kohen had the support of his work colleagues, which was evidenced by a signed petition 1. Although Mr Kohen resides 18 kilometres from his worksite without access to public transport, he submitted he would be able to ride a pushbike to and from work.

Respondent’s submissions

[27] Mr Russell Grant, the Operations Manager gave evidence and was cross-examined. Mr Grant confirmed that it was his decision to terminate the applicant's employment and that he wrote and provided the applicant with the letter of termination 2 which stated:

“On 16 January 2015, you advised that your licence had been suspended following a positive breath test.

On 11 February2015, you advised that following your court attendance your licence had been suspended for a further 7 months.

As a driver for Linfox, maintaining a valid driver's licence is an inherent requirement for your position.

With your licence suspended you are unable to perform the inherent requirements of your position, and therefore Linfox has taken the decision to terminate your employment, effective immediately.

Linfox will forward all outstanding entitlements to your nominated bank account.”

[28] It was submitted on behalf of the respondent that Mr Kohen was not terminated for his out of hours conduct; rather, it was a loss of the applicant’s driver’s licence meaning that he was unable to perform the inherent requirements of his job.

[29] An alternative non-driving position did not exist at the applicant’s worksite in Hexham, and the Linfox Lion Dairy contract did not provide for a non-driving position. Further, the Hexham site is a small operation with only four trucks and six full-time employees, two casual employees and some agency employees. Following the applicant’s termination one truck has been transferred to the respondent’s Penrith site.

[30] With respect to the allegation of differential treatment between employees, the respondent submitted that the circumstances of previous employees were not comparable. The respondent argued that in each circumstance, the loss of a driver's licence was not due to a PCA offence, the period of suspension was shorter, and they did not work from a small regional site.

[31] Linfox did not consider it reasonable that a combination of paid and unpaid leave be granted for the period of the suspension, the worksite was small and Mr Kohen's position needed to be filled.

[32] Needless to say, Linfox submitted that the decision to terminate Mr Kohen was made without regard to his status as a TWU delegate or representations in safety matters.

Conclusion

[33] The factual matters in this application are relatively straightforward and generally agreed between the parties. The issue in dispute is whether the termination of employment was an unfair exercise of the employer's right to terminate.

[34] Having heard the evidence I have no reason to question the credibility of the applicant, or Mr Grant for the respondent. As there is no direct conflict in their evidence, I am not required to determine or conclude that a particular view of the evidence is to be preferred over another. The question essentially relates to whether the dismissal was unfair when judged under the criteria specified under s.387 of the Act.

[35] Section 387 of the Act lists a number of factors that the Commission must take into account in determining whether a dismissal was harsh, unjust, or unreasonable. I will consider these factors separately; the first being whether there was a valid reason for the dismissal based on the person's capacity or conduct.

(a) Valid reason

[36] In order for a reason for termination to be a “valid reason” within the meaning of the Act, the reason must be sound, defensible, or well founded; and a reason which is capricious, fanciful, spiteful, or prejudiced, will unlikely be a valid reason. 3

[37] Determining whether a reason is valid requires an objective analysis of the facts, but it is not the role of the Commission to substitute its view for that of the employer, but to assess whether the employer had a valid reason. It is generally the case that a valid reason for dismissal exists where an employee is unable to perform the inherent requirements of their position. In Michael Smith v Capral Aluminium 4, Lawler VP cited a number of authorities and summarised these in the following manner:

“[17] Thus, subject to an obligation to provide continuing employment arising under state legislation 5 incapacity arising from a work-related injury provides a valid reason for termination of the employment of an incapacitated employee where:

(a) further performance of the employee's contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment; or

(b) continued employment would involve imposing a material productivity burden or some other unreasonable burden on the employer; or

(c) continued employment would impose an unreasonable burden on other employees.”

[38] In this case, the incapacity to fulfil the inherent requirement of the position of a truck driver arises from incapacity to operate a motor vehicle due to the loss of the applicant’s driver's licence. In one sense, (although not in a legal sense), the contract was frustrated. Based on the evidence which is before the Commission, I conclude that a valid reason did exist for the termination.

[39] This conclusion is inevitable in view of the loss of a driver’s licence by the applicant and thus his inability to drive a truck being his occupation and there being no other suitable non-driving positions available.

[40] Other than submissions made by the applicant's representatives that the dismissal was connected to his union and safety activities, and a denial of this by the employer, there was no evidence to corroborate these allegations.

[41] Having found a valid reason exists under s.387(a) of the Act does not alleviate the necessity to complete the exercise the Commission is required to undertake in determining whether a dismissal is harsh, unjust, or unreasonable. Further, a failure to consider the balance of the criteria under s.387 or to concentrate solely on whether a valid reason exists would be an erroneous application of s.387 as described by Cowdroy J in Coal v Allied Mining Services Pty Ltd v Lawler 6.

[42] The Full Bench in Woolworths Limited, trading as Safeway v Cameron Brown 7having held a valid reason for termination existed, stated the dismissal may still be harsh, unjust, or unreasonable.

“[32] Mitigating circumstances are then relevant to a determination of whether the termination of employment is harsh, unjust, or unreasonable, notwithstanding the existence of that valid reason.

[43] Similarly, in the Full Bench decision of Atfield v Jupiters Limited, t/a as Conrad Jupiters Gold Coast 8, in finding a valid reason for dismissal existed stated that in each case all the circumstances must be taken into account in determining whether a dismissal was harsh, unjust, or unreasonable.

“[13] Furthermore, it is well established that the mere fact that there is a valid reason for termination does not mean the termination cannot be harsh, unjust, or unreasonable.”

(b)(c) Was the person notified of that reason and given an opportunity to respond to any reason related to the capacity or conduct of the person?

[44] In considering whether the applicant was notified of the reason for his termination, it is clear that Mr Kohen was advised at the meeting on 20 January 2015 that if the loss of his driver's licence was endorsed by the court, his employment was at risk. An opportunity was provided to the applicant to respond to being terminated due to his loss of licence, albeit that the applicant argued that this was not considered fully, but rather done in a perfunctory manner. The consideration of the applicant’s response may have been conducted in a short time frame but an opportunity to provide a response was provided.

(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

[45] Mr Kohen was provided with an opportunity to have a support person at the relevant meetings and exercised that right.

(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal.

[46] This matter did not proceed on the basis that the work performance of the applicant was unsatisfactory, in fact the operations manager, Mr Grant, accepted that Mr Kohen had an exemplary work record and was a trusted employee.

(f) (g) 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 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.

[47] The procedure followed in effecting the dismissal was not impacted upon due to the size of the employer. Further, Linfox did not suffer from a lack of human resource management.

(h) Any other matters that FWC considers relevant

[48] I am also required to consider any other relevant matters. In respect of differential treatment, I find that the treatment of other employees in similar circumstances to that of the applicant is a relevant factor to consider pursuant to s. 387(h) of the Act.

[49] In National Jet System Pty Ltd v Mollinger 9, the Full Bench concluded that in the particular factual circumstances it was appropriate for the Commission to have regard to different treatment afforded to another employee involved in the same incident when considering whether a dismissal was harsh, unjust, or unreasonable. Where there is no proper basis for distinguishing between employees’ treatment by an employer it is a factor in favour of a finding that the dismissal was harsh, unjust, or unreasonable.

[50] In John Sexton v Pacific National ACTU Pty Ltd 10 Lawler VP dealt with the question of differential treatment in comparable circumstances. In that decision the Vice President referred to comments of the Full Bench in Serco Gas Services Pty Ltd v Alkenamde and others11 at paragraph 35:

“[35] Moreover, in Serco Gas Services the Full Bench considered a submission that the decision in Loty v Holloway v The Australian Workers' Union 12 (the decision from which the notion of "A fair go all round" is drawn) "is consistent with the notion of employer's treating different classes of employees differently, provided that the individual is given a fair go as between the employee and the employer, and the employer's conduct is a rational and logical consequence of that circumstance.” The Full Bench agreed “that Loty's case does not preclude the differential treatment of employees in relation to the application of the principle of a fair go all round."

[51] And relevantly the Vice President went on to state:

“[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust, or unreasonable. In particular it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable. The Commission must ensure that there it is comparing apples with apples. There must be sufficient evidence of the circumstance of the alleged comparable cases to enable a proper comparison to be made. Obviously, where, as in National Jet Systems, there is a differential treatment between persons involved in the same incident, the Commission can more readily can more readily conclude that the cases are properly comparable. However, even then the Commission must approach the matter with caution. Specifically, the Commission must be conscious that there may be considerations subjective to the circumstances of an individual that caused an employer to take a more lenient approach in an allegedly comparable case. For example, a worker guilty of particular misconduct justifying termination might be shown leniency because of extreme need or stress arising from the serious illness of a close dependent. Another worker guilty of the same misconduct could not necessarily rely upon the leniency shown to the first worker as a basis for demonstrating that his or her termination was harsh, unjust or unreasonable. Many other examples could be constructed.”

[52] Clearly, each case must be considered on its own facts and circumstances. This is not a case of two or more employees at the same time in the same circumstances, being treated differently. The examples provided were not like with like, and had occurred 5 or more years ago. In this matter, the examples of previous situations relied upon by the applicant were not, in my opinion, directly comparable, and failed to demonstrate a level of unequal treatment to such a degree to result in a conclusion rendering the termination of Mr Kohen harsh, unjust, or unreasonable.

[53] With respect to the ability or otherwise for the applicant to exhaust his leave entitlements and then take unpaid leave, I refer to the decision in Salesh Chand v Endeavour Energy 13which was relied upon by the applicant in this case. Here, similar circumstances did exist where the employee's driver licence was suspended for a period of 12 months, resulting in the employee's termination. The employee was employed as a transmission technical support officer and disputed that having a driver's licence was an essential requirement of his position. In the decision, the Deputy President held that while an employer may choose to reorganise work, it was not incumbent upon them to do so. Gooley DP opined that had the suspension been for a shorter period of time it may have been reasonable for the employer to have accommodated the loss of licence.

[54] In the present case, Linfox had a valid reason for the termination of Mr Kohen's employment as he was not able to perform the inherent requirements of his employment. It was not unreasonable, in my view, for Linfox, having reviewed alternatives, to determine that it could not accommodate his inability to drive until at least 16 September 2015. Even had Mr Kohen been permitted to exhaust all his leave entitlements, this would have left a period of three and a half months of unpaid leave on the basis that the respondent was not agreeable to the taking of long service leave on half pay.

[55] Linfox did not immediately dismiss Mr Kohen but awaited the outcome of his court case. That was a reasonable course of action as it was shown that one previous employee employed by Linfox had been successful in the first instance in having their driver's licence reinstated.

[56] While Mr Arjonilla has put the best case forward for Mr Kohen, it is not sufficient for the Commission to determine that the dismissal of Mr Kohen's employment as being harsh, unjust, or unreasonable. The applicant was simply unable to perform his job as a truck driver for a period of 8 months which could not be accommodated by Linfox.

[57] Mr Kohen has a long and exemplary record of service with Linfox. It is regrettable that a single poor judgment resulting in the loss of his driver's licence has now resulted in the loss of his employment due to the nature of his work.

[58] There may have been a different outcome had Mr Kohen been convicted of low range PCA where the penalty is a shorter suspension of licence. Fortunately, it would appear that Linfox has not ruled out the applicant's possible return to truck driving upon application, when he re-acquires his driver's licence.

[59] On the basis of my conclusions in this matter, Mr Kohen's application is dismissed.

COMMISSIONER

Appearances:

Mr Hugh Arjonilla (TWU) on behalf of the applicant

Mr Nick Leon for the respondent

Hearing details:

2015.

Sydney

4 June 2015

 1   Attachment B of the applicant’s written statement dated 20 April 2015

 2   Attachment A of the applicant’s written statement dated 20 April 2015

 3   Selvachandran v. Petron Plastics Pty Ltd (1995) 62 IR 371 at 373

 4   PR944238 (U2003/110)

 5   A reference to worker's compensation

 6 [2011] FCAFC 54

 7   PR963023

 8 (2003)124 IR 217

 9   R3130

 10   PR931440 (U2002/5282)

 11   R6090

 12 (1971) AR (NSW) 95

 13   [2014] FWC 7414

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