Mr Ganesh Changan v Linfox Australia Pty Ltd T/A Linfox Linehaul
[2014] FWC 2790
•22 MAY 2014
[2014] FWC 2790 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ganesh Changan
v
Linfox Australia Pty Ltd T/A Linfox Linehaul
(U2013/16326)
COMMISSIONER SPENCER | BRISBANE, 22 MAY 2014 |
Application for relief from unfair dismissal.
[1] This decision relates to an application filed in the Fair Work Commission (the Commission) by Mr Ganesh Changan(the Applicant), pursuant to s.394 of the Fair Work Act 2009 (the Act). The application alleges that the Applicant was unfairly dismissed from his employment, by Linfox Australia Pty Ltd T/A Linfox Linehaul (the Respondent/Linfox).
[2] The application was the subject of conciliation before a Fair Work Commission Conciliator but was unable to be resolved.
[3] The matter was further allocated to the Commission, as presently constituted, at the request of the Applicant’s representative. The Commission had previously dealt with another matter in dispute between the Respondent and the Transport Workers’ Union of Australia (the TWU/Union). This matter raised particular issues in relation to the Transport Industry.
[4] Directions for the filing of material and evidence were issued. Further directions were set for the filing of final submissions. The evidentiary case of both parties was heard over two days. By consent, the matter was relisted for closing submissions in Brisbane, after the parties had the benefit of transcript in the matter.
[5] The matter was also the subject of a site inspection at the Linfox Linehaul premises. This will be discussed further below.
[6] The Applicant was represented by Mr A Carter, Legal Officer of the TWU. Permission was granted for the Respondent to be represented by Mr D Williams, Partner of Minter Ellison.
[7] The Respondent’s representative, prior to Hearing, filed submissions in relation to representation in relation to the matter. Mr Carter, on behalf of the Applicant, did not object to the Respondent’s representation by Mr Williams. However, the Commission must still be satisfied that representation should be granted pursuant to s.596 of the Act. Section 596 relevantly states:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”
[8] Permission was granted on the basis that the matter involved some complexity and that representation of the Respondent would enable the matter to be dealt with more efficiently. In particular it was taken into account that the credit of the Applicant was likely to be in dispute in the matter and that a consideration of the Respondent’s policies, employment contracts and safety issues would form central evidentiary issues in relation to the matter. It is also pertinent that Mr Carter, representing the Applicant, is legally qualified and an experienced industrial advocate with significant experience in the Transport Industry. The Applicant’s representative had indicated that operational elements covered by this matter had wider relevance and application to the Respondent’s operations and the industry more generally. The Respondent submitted that whilst it engaged in-house lawyers, these lawyers are not specialised in employment or industrial relations law in terms of the conduct of a matter before the Commission. As a matter of fairness between the parties the granting of permission to appear was warranted.
[9] While not all of the evidence and submissions in this matter have been referred to all of such have been considered.
Background
[10] Linfox is a large, national transport company that employs approximately 5000 employees. Linfox submitted that the nature of its operations, involving the operation of large transport vehicles (heavy transport), can be potentially dangerous.
[11] The Applicant was employed as a Linehaul Truck Driver. At the time of his dismissal, the Applicant had approximately 18 months service with the Respondent on a full time basis. Prior to this period of service with the Respondent, the Applicant provided labour to the Respondent through a labour hire company.
[12] The Respondent summarily dismissed the Applicant, for alleged serious misconduct. The termination of the Applicant’s employment was in relation to the process of coupling and uncoupling of trailers to and from prime movers and, in particular, in relation to an incident on 6 or 7 November 2013, the parties are in dispute about the date on which the incident occurred. However, nothing significant, in terms of the events, turns on this.
[13] In summary terms, the incident involved the Applicant allegedly performing the coupling procedure, which failed, and resulted in a “detached trailer” - that is the trailer dropped to the chassis of the truck but did not ‘drop’ to the ground. The Applicant reported the incident, as he was required to do. An investigation followed.
[14] The Respondent called the Applicant to a meeting on 12 November 2013. This meeting was the subject of dispute between the parties. The result of the meeting, however, was that the Applicant’s employment was terminated for serious misconduct. There was no letter of termination in evidence that set out the specific reasons for the termination.
Relevant Legislation
[15] The application has been made pursuant to s.394 of the Act, which provides as follows:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3)...”
[16] Prior to considering the merits of the matter the Commission must decide those matters prescribed by s.396 of the Act as follows:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[17] There is no dispute that the application was filed within the time period prescribed. The Commission’s file indicates that the application was filed on 28 November 2013. The originating application stated that the dismissal took effect on 12 November 2013. The employer’s subsequent response stated that the dismissal took effect on 11 November 2013. However, the Respondent’s submissions and evidence in relation to the Arbitration of this matter stated that the Applicant’s employment was terminated on 12 November 2013, with immediate effect. The discrepancy does not alter a conclusion that the application was made within the period required in s.394(2) of the Act.
[18] The Respondent has not raised any objection to the application on the basis of those matters set out in s.396(c) and/or (d) of the Act, being that the dismissal was consistent with the Small Business Fair Dismissal Code, or was a case of genuine redundancy. The Respondent is not a Small Business for the purposes of the Small Business Fair Dismissal Code and therefore cannot rely upon the Code in response to the application. Similarly, the Respondent did not rely upon a reason of a genuine redundancy in the Applicant’s dismissal. The Commission is satisfied that the Small Business Fair Dismissal does not apply and that the dismissal was not a case of genuine redundancy.
[19] A person is protected from unfair dismissal, at a time, if that person satisfies those matters prescribed by s.382 of the Act, as follows:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[20] There is no dispute between the parties that the Applicant had completed the minimum employment period and was either not a high income employee and/or that an enterprise agreement, the Linfox Road Transport & Distribution Centres National Enterprise Agreement 2011 (the Agreement), applied to the Applicant in relation to the employment.
[21] The Commission is satisfied, on that basis, that the Applicant was a person protected from unfair dismissal at the time of dismissal.
[22] The Applicant alleged that he has been unfairly dismissed within the meaning of s.385 of the Act which states as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[23] There is no dispute that the Applicant is a person who has been dismissed. Those matters in ss.385(c) and (d) do not arise.
[24] The Applicant has alleged that his dismissal was harsh, unjust or unreasonable. The Applicant sought reinstatement. In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable the Commission must take into account those matters specified by s.387 of the Act, as follows
“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.”
Summary of Applicant’s Submissions and Evidence
[25] The Applicant relied upon evidence from the Applicant, Mr Ken Allen, Linfox employee and TWU Co-delegate, Mr David Buchanan, Linfox employee and TWU Delegate, Mr James Eleison, former Linfox employee and Mr Brett Boreham, Linfox IGA Employee. The Applicant also relied upon an expert report by Dr Peter Hart, Consultant.
The reasons for dismissal
[26] The Applicant stated that he had not received a letter of termination at the meeting, or subsequently. The Applicant has also not received any payment in lieu of notice.
[27] On 27 January 2014, the Respondent filed a Form F3 Employer’s Response (the Response). The Response stated that the application was terminated for “serious misconduct”. More specifically the Respondent alleged that the Applicant engaged in the misuse and abuse of equipment, contrary to clause 42.2 of the Agreement, which defines serious misconduct to include misuse or abuse of equipment. The Response does however state at item 3.1 “[W]hat were the reasons for dismissal?” that the Applicant was dismissed for failing for follow the Linfox coupling/uncoupling procedures (discussed below).
[28] The Response also alleged that the Applicant admitted that he failed to check whether the coupling release level was in the locked position. This alleged admission, discussed later, is denied by the Applicant.
[29] The events preceding the Applicant’s dismissal relate to the Applicant’s performance of the coupling of a prime mover to a trailer and, specifically, the related visual and “tug tests” on 6 November 2013. In performing the “tug test” (discussed below) the trailer that the Applicant was attempting to couple to the prime mover “detached” landing on the chassis of the prime mover; the Applicant submitted that no damage resulted to the trailer.
[30] The Applicant concedes that the coupling and uncoupling of trailers to and from prime movers is covered by the Respondent’s procedures. The Applicant also concedes that he received training in this procedure while working for Linfox through the labour hire arrangements. 1 The Applicant submitted that he was assessed as competent in the procedure by Linfox at that time, and during his employment with Linfox,2 and that he followed the procedure in coupling the trailer on the occasion, in issue, in this matter. Given that the procedure is a central consideration in this matter, it is appropriate to consider the procedure.
Coupling and Uncoupling Procedure
[31] The procedure is known as “TSF 0111 Safe Working Procedure - Coupling/Uncoupling (Prime Mover and Semi-Trailer, Lightweight B-Doubles and Restricted Combinations)” (the Procedure). A copy of the Procedure was in evidence. 3 The Procedure is 17 pages in length and contains a list of instructions (dependent upon the specific trailer combination being coupled/uncoupled by the Driver), with the inclusion of some pictures. Some drivers gave evidence on behalf of the Applicant that they have not seen the Procedure4 but these drivers concede they are nevertheless tested on coupling regularly, and the procedures are generally discussed at toolbox meetings on a regular basis.
[32] In general terms, the Procedure is for the purpose of ensuring that trailers are safely and properly coupled or uncoupled to a prime mover. The Procedure identifies as “Identified Risks” associated with the procedure, the “potential for serious injury to the operator, other road users and pedestrians” as well as “potential for serious damage to plant, structure, equipment and freight”.
[33] The Procedure, in a number of places, states, in capitalised and bolded lettering:
“FAILURE TO COMPLY WITH THIS PROCEDURE WILL RESULT IN DISCIPLINARY ACTION BEING TAKEN AGAINST INDIVIDUALS CAUSING DAMAGE THROUGH NEGLIGENCE.”
[34] The Procedure involves several visual checks, to assess that the “kingpin” of the trailer has properly locked into the “turntable’ (or “fifth wheel”). The procedure also requires a driver to perform a series of “tug tests” whereby pressure is applied to the connection (between the trailer and the prime mover) by moving the prime mover forward. The purpose of the “tug tests” is at issue in this matter.
[35] The Applicant submitted that the purpose of the “tug tests” is to ensure that the driver has correctly coupled the trailer and prime mover and/or to ensure that there is no mechanical defect in the “turntable” or “fifth wheel”. The dispute arises in that the Applicant submitted that he followed the procedure and, consistent with the purpose of the procedure, a tug test identified that the trailer had not properly coupled. The evidence of a number of drivers was called by the Applicant to confirm their understanding of the purpose of the tug tests. 5
[36] The Applicant drew the Commission’s attention to the requirement of the Procedure that the first tug test be performed while the legs of the trailer are down. This had the practical effect of decreasing the force that the driver can apply to the coupling in the first tug test (to avoid damage to the legs). Drivers gave evidence that they generally perform a rudimentary tug test for the first test, to avoid any possibility of damage to the trailer’s legs. 6
Evidence of the event
[37] The Applicant submitted that on the day of the incident, he was operating a truck which utilised a “dual height turntable”. 7 This turntable can be raised and lowered and is not generally used on the Respondent’s vehicles. This turntable was, in the Applicant’s evidence, damaged by the actions of another driver, approximately a year before the incident in question in this matter.8 Following this other incident the dual height turntable was damaged and permanently set to the “upper height”. The hydraulics that operated the dual height turntable, were disconnected by the workshop following this damage.
[38] After commencing work at 6am, and undertaking a number of other duties, the Applicant was instructed that his next job would involve the trailer in question in this matter. This type of trailer has a kingpin which, according to the Applicant, is situated a “fair way forward on the trailer” 9 in comparison to other large trailers. The Applicant’s evidence is that the kingpin on this trailer is less than one meter from the front of the trailer, whereas in other large trailers it is several meters from the front of the trailer.
[39] The Applicant stated that he performed a visual check of the turntable to see that the “jaws” were open. 10 The Applicant then reversed the prime mover back, to perform the coupling, and stated that he heard the turntable “click” which indicated that the turntable has hooked onto the king pin. The Applicant stopped the truck because he could not drive the truck back anymore.
[40] The Applicant stated that he then performed “two gentle tug tests” for the purpose of confirming that the turntable was hooked. 11 The “legs” of the trailer were still down at this time. The Applicant stated that he then visually checked the coupling with a torch, consistent with the Procedure.
[41] This visual check involved checking the “release handle”, which is a safety mechanism of the turntable which, if properly coupled, fully retracts and “locks” so that the kingpin cannot unexpectedly uncouple from the turntable. As part of a further safety measure, the release handle has a locking tab which, if correctly locked, will be in the down position. The Applicant’s evidence is that it “appeared to [him] to have fully retracted and locked in place”. 12 The Applicant also checked that there was no gap between the turntable and the trailer. The Applicant also checked if the jaws of the turntable were locked by performing a visual check. The Applicant’s evidence is that the jaws were locked in place.13
[42] After having performed the visual checks, the Applicant wound up the trailer legs and connected the airlines and electrical power lead. The Applicant then entered the cabin of the truck to perform the further tug tests.
[43] The Applicant stated that he applied the brakes and moved the truck forward. The Applicant noticed, in the rear vision mirror, the trailer breaks “locking up” and the trailer being “pulled up”. This indicated to the Applicant that the tug test had been successful and that the trailer had coupled correctly. 14 The Applicant then gave evidence of the final tug test as follows:
“I then did a final tug test by moving the truck forward again and engaging the trailer brakes by pulling the [brake] level all the way down. Keeping an eye on the rear vision mirror I saw the trailer brakes locking up and the trailer had stopped but I felt the truck was still moving.
I then quickly stopped the truck by applying the foot brake.” 15
[44] The Applicant stated that because of the location of the king pin on the trailer (being about a meter from the front of the trailer) the trailer had slid onto the chassis of the truck. The trailer did not fall to the ground and when inspected, the Applicant did not notice any damage to the truck. The Applicant wound down the legs of the trailer to secure it.
[45] The Applicant was concerned that there was a mechanical failure or defect with the turntable. The Applicant stated that he noticed that the safety lever was “slightly out of the turntable”; the Applicant did not touch the safety lever following the incident. The Applicant also stated his observation that the turntable of the truck was thickly layered in grease. The area around the locking latch was also thick with grease, as was the handle itself.
[46] In accordance with the Respondent’s reporting procedures, the Applicant immediately reported the incident, by telephone, as a “near miss incident” to Mr John Buckler, his Supervisor/Allocator. 16 The Applicant’s evidence is that if he had not reported the incident the Respondent would not have been aware of any issue, because there was no damage to the truck or trailer. This evidence is contradicted by the photographs tendered in evidence that show the state of the chassis wheel. Four photos were tendered that show a significant indentation on the chassis under the trailer as well as scratches to the paint and chassis.17
[47] After a discussion with Mr Buckler, Mr Scott Clulow, Line-haul Manager, came to the truck. The Applicant’s evidence is that he explained the steps he had taken to Mr Clulow. The Applicant stated that he told Mr Clulow that he (the Applicant) could not understand how the trailer detached.
[48] The Applicant was requested, before the left the site to make an incident report. That report was a handwritten report. A translation of that report is as follows:
“To whom it may concern,
I namely Ganesh Changan had an incident with trailer 852 while hooking up. I lined up the truck with the trailer reversed backi, the trailer being a bit lower which made the turntable lift up the trailer as I reversed under. I heard the click as usual when it locks in then I did a couple of tugs lightly, put air brakes on got out of the truck to check the pins. I noticed the pin in lock position and so I raised the legs, did the airlines, checked oil and diesel on the tipper motor then went back in the truck to do the tug test. First tug was okay, second tug test moving forward engaged the level and felt the truck still moving and I applied the truck brake quickly and the trailer dropping on the chassis it is a short trailer and the pin sits fairway forward.
I follows the hookup procedure as always but am not sure about how this could have happened. In the past I did have hook up problem with Fox224 but when re-do the hookup it worked. To my knowledge it could be mechanical problem as I did do the hookup procedure.” 18 (errors in original)
[49] After Mr Clulow inspecting the truck, and the Applicant taking some time to come to terms with the incident, Mr Clulow asked the Applicant to make a handwritten report of the incident. The Applicant’s evidence is that he was not given a copy of this report. The Applicant was subsequently tested for drug and alcohol.
[50] The Applicant was stood down at this time and the Respondent caused the truck to be sent to the manufacturer of the “turntable”, Jost, to be examined. The Applicant’s evidence is that Mr Clulow stated:
“You will be stood down with pay until I receive a report from Jost, the manufacturers of the turntable. After the report from Jost has been received it will be sent to Melbourne where the decision will be made about the incident. It’s all out of my hands because these decisions are made in Melbourne by my boss and he is a hard man.” 19
Meeting on 12 November 2013
[51] The Applicant was called by Mr Clulow on 11 November 2013 to advise that he had received the report from Jost and that the Applicant was required to attend a meeting the following morning. The Applicant’s evidence is that this call was received “in the evening”. 20 The Applicant did not receive the report from Jost until the commencement of these proceedings.
[52] Mr Buchanan, the Applicant’s support person and TWU Delegate, gave evidence that he was sent a text message, at 8am on 8 November 2013, from Mr Clulow in the following terms:
“Will need you here Monday so the day extra for your holidays will have to be another time.” 21
[53] Mr Buchanan was on leave at this time. Mr Buchanan’s evidence is that he was not aware of the reason for Mr Clulow’s calling Mr Buchanan back into work. Mr Buchanan stated he did not find out about the meeting until Sunday, 10 November, when he was advised by Mr Allan, his co-Delegate. Upon returning to work on Monday, 11 November, Mr Buchanan approached Mr Clulow and requested clarification about why he was required to return to work. Mr Buchanan stated that Mr Clulow advised that he was there to attend a meeting. When further queried about the meeting Mr Buchanan’s evidence is that Mr Clulow stated “I’m not going to say”. 22 Mr Buchanan asked if the meeting was in relation to the Applicant, and Mr Clulow responded “I can’t say, you will have to wait until the meeting”.23
[54] The Applicant attended at the workplace at 8.50am. The Applicant met with Mr David Buchanan, TWU Delegate, before the meeting which was to occur at 9.00am. The Applicant stated that he, Mr Buchanan, Mr Clulow and Mr Scott Travers attended the meeting.
[55] The Applicant gave evidence as to the meeting as follows:
“[Mr Clulow]: “I have received the report from Jost. Are you happy with the incident report – do you want to change anything?”
[Applicant]: “When I wrote the incident report I was not in the right state of mind but tried to do the best I could on the day”.
[Mr Clulow] then read out part of the report from Jost. The conversation continued:
[Mr Clulow]: Are you sure that you did your checks properly?”
[Applicant]: “I have always followed the procedure and everything looked fine to me”.
[Mr Clulow]: “On the basis of the report from Jost, my boss has instructed me that your employment is to be terminated. Is there anything you want to say”.
[Applicant]: “What about you put me in a body truck”.
[Mr Clulow]: “No, this has come from my boss, it’s out of my hands”.
[Applicant]: “I’m not happy with the decision and I will need to get some advice from the union”.
[Mr Clulow]: “That’s fine - whatever you want to do. You will need to hand over the keys and gate pass. David will escort you to the gate”.” 24
[56] The Applicant stated that he did not concede, at any point during this meeting, that he did not follow the coupling procedure. Mr Buchanan’s evidence is also that the Applicant did not concede any non-compliance with the Procedure. 25
[57] Mr Buchanan, gave evidence as to the conversation at the meeting as follows:
“Mr Clulow: “Is there anything you want to add to your statement?”
Ganesh: “I am happy with it”.
Mr Clulow: “We’ve had the turntable inspected by Jost. They can’t find any fault with the turntable and they put it down to not following procedure”.
I could see that Mr Clulow had a copy of a document with him that was headed with the word “Jost”.
Myself: “Can I see the report?”
Mr Clulow: “No. The union will be given a copy”.
Myself (to Ganesh): “Did you do your visuals. Did you do the procedure correctly?”
Ganesh: “To the best of my knowledge, yes”.
Mr Clulow: “We’ve got to terminate your employment. The decision has been made by Melbourne and I have to follow through on my instructions. Have you got anything to say?”
Ganesh: “Can you put me in a body truck?”
Mr Clulow: “No, the decision has been made. You’ve got to go. Can I have your key and gate pass. Dave will walk you out”.” 26
[58] There was some contest in the proceedings about who the eventual decision maker was. Mr Allan gave evidence of a conversation with Mr Clulow, approximately a week after the incident, as follows:
“Myself: “David has said that he followed the procedure and that you should have checked the cameras”.
Scott: “I checked the camera and it only covered the fenceline. You can only see the end of the trailer”.
Myself: “It’s a bit strange to only cover the fence with all of the equipment that Linfox has here”.
Myself: “Would it have helped if you put in a character report regarding David”.
Scott: “I wrote a report out and I sent it down to Melbourne”.
Myself: “Do you put in a character report - about his work ethic,
any problems with customers, always being on time?”.
Scott: “Yes, I did all that, but whether that was taken into consideration I do not know”.
Myself: “You’ve now got to replace David, you have teach a new driver side loading and tipping”.
Scott: “I know, but my hands are tied. It’s all up to Melbourne”.” 27
Truck maintenance
[59] The Applicant stated that drivers, like the Applicant, are not permitted to perform any maintenance work on the trucks; all maintenance is performed by the workshop. 28 The Applicant also stated that Drivers are not permitted to wash their turntables, despite the presence of a wash bay at the depot, because the workshop manager complains about the presence of grease in the washbay.29
[60] The Applicant’s recollection is that the turntable of his truck was not serviced or maintained unless there was an issue with the turntable requiring rectification. This has occurred on “a couple of occasions” where the jaws of the turntable would not engage (ie lock) when the prime mover was reversed to the trailer. 30 The Applicant’s evidence is that the workshop staff identified that these previous issues were as a result of the handle of the turntable being bent. The Applicant stated that these previous issues were rectified by the workshop staff manually straightening the handle using a crow bar.
[61] The Applicant did state however that trucks are serviced at regular intervals. 31 The Applicant’s evidence is that this occurred about every three to four months.32 The Applicant stated that during the regular servicing the workshop staff apply fresh grease to the top of the turntable, this is however done without cleaning off the old grease. The Applicant’s evidence is that the grease builds up overtime and foreign objects (including dirt and dust) stick to the grease.33 The Applicant stated that the build-up of grease “can make it harder to perform the visual checks” including checking that the locking tab is in the correct position and that the release handle is fully engaged.34 The Applicant’s evidence in this regard was consistent with the evidence of Mr Allan and Mr Buchanan.35Mr James Dene Eleison, former Driver with the Respondent, also gave evidence that in his experience the turntables were “generally” caked with excessive amounts of grease. Mr Eleison’s evidence is that this occurs because the workshop does not clean off the old grease when apply new grease.36
[62] The Applicant stated his understanding that in Melbourne, turntables are cleaned of old grease, prior to the application of new grease. The Applicant stated that he was told this Mr Shalendra Kumar, a diesel mechanic/office work at the Willowong Depot, the depot at which the Applicant was employed. Mr Kumar was said to have previously been a mechanic for the Respondent in Melbourne.
The expert evidence
[63] Before the Commission are two reports; the Jost report and the report of the opinion of Dr Peter M Hart, regarding the fifth wheel coupling procedures. The parties are in dispute about the application of these reports. The Applicant submitted that the report prepared by Jost was incorrect because the inspection conducted by Jost in arriving at the findings was “entirely inadequate” and the circumstances and testing methodology were “flawed”.
[64] The Jost report signed by Mr Robert Martin, Area Manager of Jost Australia, dated 11 November 2013, stated, in its entirety, as follows:
“Introduction
Colin Macdonald received a call from Rob Marsh at Linfox Brisbane, advising that a Linfox prime mover had dropped a trailer. The truck was brought to Jost Brisbane for inspection.
Jost Brisbane
JSK 37 CZ serial number 1862510146
The above mentioned fifth wheel was inspected, the lock jaw and lock bar were found to be in good working condition, with no obvious witness marks to suggest that the king pin may have been located on top of the jaw.
We inserted a fifth wheel lock tester and found the fifth wheel to be operating correctly. This was tested several times and the fifth wheel coupled correctly each time.
Conclusion
It is our conclusion that the fifth wheel did not couple correctly, and this was not noted by the operator. We suspect that the handle was not all the way in and the secondary safety latch had not engaged. In this condition, the jaw is not fully closed and the lock bar is not fully across and it is possible for the king pin to force past the partially opened jaw and lock bar and allow the trailer to come away from the fifth wheel.” (editing in original)
[65] Mr Clulow’s evidence is that this report was read to the Applicant at the termination meeting but a copy was not provided to the Applicant, or his representative, before or after the termination meeting.
[66] Mr Martin is a qualified motor mechanic and has worked in the supply chain logistics industry for approximately 19 years. 37
[67] Mr Martin stated that the beginning of the inspection process, following a dropped trailer, is to inspect the “top surfaces” to check for witness marks. Mr Martin stated that witness marks will be present if the kingpin of the trailer has dropped directly onto the lock jaw and the truck then moved forward (via a tug test). 38 If the kingpin is locked, Mr Martin’s opinion is that there is only one possible way for the kingpin to come out; if the handle comes open. Further, the only possible way for the handle to come open is if the handle is not locked all the way and the secondary latch has not engaged.
[68] Mr Martin gave specific evidence regarding the process undertaken to test the functionality of the fifth wheel using a tester. The Commission viewed this procedure during the inspection at the Respondent’s premises.
[69] Dr Hart’s report stated that the report was commissioned by the TWU; the letter of instructions from the TWU to Dr Hart was annexed to Dr Hart’s report. Dr Hart was requested to give his opinion about the following matters:
“The purpose of conducting a ‘tug test’ when a prime-mover is being coupled to a semi-trailer. In particular, the purpose when the trailer brakes are applied.
Whether a tug-test and a visual inspection are always reliable in verifying correct coupling.
What the industry generally regards as the purpose of tug testing and particularly the purpose of tug testing performance with the trailer brakes applied.” 39
[70] Dr Hart stated that he was provided with the Procedure, an excerpt from the NSW Heavy Vehicle Driver Handbook, the Jost report (being a letter signed by Mr Bob Martin of Jost) and photos of the fifth wheel in question. Dr Hart also had regard to the Jost Australia product catalogue, repair manual and a report by SAF Holland, ‘About Fifth Wheels’.
[71] Dr Hart stated in his report that he had specialist knowledge of heavy trucks generally and, specifically, to mechanical couplings. Dr Hart’s experience and qualifications was stated in his report. Mr Williams, on behalf of the Respondent, did challenge Dr Hart’s qualifications to give the evidence he provided in these proceedings. 40
[72] Dr Hart has performed work for Jost Australia, being their certification agent for more than 10 years and having overseen testing of, and the preparation of submissions for, a range of Jost Australia’s mechanical couplings.
[73] I am satisfied that Dr Hart is a person of considerable training and experience, particularly in the heavy vehicle industry and, more specifically, with knowledge of the Jost equipment in question. Dr Hart’s evidence was considered on that basis. Dr Hart made a series of amendments to his report at the outset of his evidence. An adjournment was provided to the Respondent to take instructions on the amended evidence.
[74] Dr Hart stated that there are four “normal states of engagement” of the fifth wheel (coupling mechanism). These states include:
“1. Jaws open - uncoupled. The handle is fully out
2. Jaws incompletely closed - unsafely coupled. The handle is in an intermediate position.
3. Jaws closed but the mechanism is unlocked - unsafely coupled. The handle is close to the locked position
4. Jaws closed and the mechanism is locked - safely coupled. The handle is in the locked position.” 41
[75] This fourth “state” is the only safe state in which to tow a trailer. Dr Hart stated that there was a “fifth state” which can arise if the mechanism is broken. This state arises where the level is “fully in and locked” but the broken mechanism does not close the jaws. Another state also arises where the mechanism is buckled or bent.
[76] It is Dr Hart’s opinion that the ordinary/intended operation of the locking mechanism is such that, if the correct amount of force is applied, the fifth wheel will go from state 1 to state 4; this is a safe and complete couple. However, Dr Hart’s opinion is that, even with a perfectly operational fifth wheel, the coupling may not be entirely effective and can enter state 2 or state 3.
[77] Dr Hart gives some comments on the report of Mr Martin, about the condition of the fifth wheel in this matter. Dr Hart notes that the report of Mr Martin is not accompanied by any photos of the fifth wheel in question. Dr Hart’s opinion is that the findings reported by Mr Martin are consistent with the fifth wheel being in state 3 above.
[78] Dr Hart’s opinion is that Mr Martin’s conclusion is based upon the logic that as Jost was unable to identify any defect in the fifth wheel or any excessive wear, and then the fault must be due to an incomplete coupling action. Dr Hart agrees that this is a possibility but his opinion is that the level of detail in the report is insufficient. In particular Dr Hart notes that no information is provided in the report as to what checks were conducted by Jost.
[79] Dr Hart stated that he viewed photos of the fifth wheel on the Applicant’s truck, which were provided by the TWU. Dr Hart included a picture of the fifth wheel, while uncoupled, which, in Dr Hart’s opinion, showed that the grease is “excessive” and that the fifth wheel had not been cleaned for a considerable time.
[80] Dr Hart stated that the exact type of fifth wheel used on the vehicle operated by the Applicant is not the same exact type used by Mr Martin in preparing his opinion. Dr Hart stated that the type used by Mr Martin had a “completely different pivot design”. Given that the identification plate on the fifth wheel has been incorrectly identified in the report of Mr Martin, it indicated that the identification plate was not checked. Dr Hart stated that the plate is underneath the grease. Dr Hart questioned whether this indicated if the grease was removed to enable proper inspection of the unit by Jost.
[81] As to the Procedure adopted by the Respondent as to coupling, Dr Hart’s opinion is that the visual and audible checks required by the Procedure “cannot verify that the fifth wheel is locked (state 4) because the locking detect has not been inspected”. 42 Dr Hart stated that a fifth wheel in state 3 could pass the initial tug test. Importantly Dr Hart stated:
“The visual checks that the jaws have closed on the kingpin are necessary to verify that the mechanism has not broken.
The visual check 7 can only be passed in the fifth wheel is in state 4.
None of the subsequent checks 8-10 can [verify] state 4. Failure of a tug-test indicates that state 4 was not achieved.” 43
[82] Mr Martin was able to comment upon Dr Hart’s report. Mr Martin generally does not agree with Dr Hart’s opinion. Specifically, Mr Martin does not agree that with Dr Hart’s opinion that the photos of the fifth wheel he inspected lead to a conclusion that it had excessive grease on it. This view was consistent with the view of Mr Colin MacDonald, Operations Manager of Jost, who conducted the inspection of this vehicle. With that amount of grease Mr Martin’s opinion is that it would still be possible for a driver to identify if the handle had locked and the safety latch engaged.
[83] Similarly, Mr Martin clarified that Jost was not asked to undertake a full inspection (involving degreasing, steam cleaning and checking of all components of the fifth wheel).
[84] Mr Martin specifically disagreed with Dr Hart as to the possible causes which may contribute to a failure of the secondary safety latch to engage as follows:
“I do not agree that the following are factors which would contribute to a failure of the secondary safety latch to engage:
wear on the edges of the detents on the handle bar;
grease at the detent that might help the bar to slip; or
excessive wear in the mechanism.
Wear on the edges of the detents on the handle bar allows greater clearance between the fifth wheel handle and the secondary safety latch. This makes it easier for the secondary safety latch to engage.
Grease on the detents of the handle bar provides lubrication which allows the handle bar to slide in easier as the handle is pulled into place by a dual return spring.
Excessive wear of the fifth wheel components causes the trailer king pin to be loose in the fifth wheel. Such wear would not prevent the handle from travelling all the way into the fifth wheel, nor not allow the secondary safety latch to drop down and engage.” 44
Summary of Respondent’s Submissions and Evidence
[85] The Respondent stated that a coupling failure was one of the most significant risks to the safety of the Respondent’s drivers and the general public. Coupling failure can result in death.
[86] Mr Clulow had attached to his statement the Respondent’s Safety Strategy. 45 The ‘Vision’ of the strategy states:
“Linfox believes that all incidents are preventable.
We aim to achieve:
ZERO Fatalities
ZERO Injuries
ZERO Motor Vehicle Incidents
ZERO Net Environmental Emissions
ZERO Tolerance of Unsafe Behaviour & Practices
Linfox aims to achieve vision ZERO through strong and uncompromising leadership, safe behaviour and continuous improvement of our safety management systems.” 46
(emphasis in original, graphics not reproduced)
[87] Mr Clulow’s evidence was that the safety policy meant that where it was found that there were unsafe behaviours, the Respondent maintained a zero tolerance stance. Mr Clulow countered that every incident needed to be assessed on its merits. He stated that the compliance with the Procedure was paramount. He agreed that an example of the Applicant of the Procedure on an inconsistent basis was in relation to Mr Max Tillitson. Mr Allen gave evidence regarding the incident involving Mr Tillitson as follows:
“In the latter half of 2011 Mr Max Tillitson was sacked by Linfox for a detached trailer incident. Max (now deceased) had been employed by Linfox for over 20 years. I remember the day he received his official Linfox tie for 20 years of good and faithful service.
The incident for which Max was sacked involved Linfox 202. Max had delivered an empty trailer to Smiths Crisps at Murarrie and was to pick up a trailer loaded with crisps.
Max told me that he had done all of checks but when he went to depart the yard the trailer detached and fell onto the chassis of the truck.
Max could have wound up the legs of the trailer and no one would have known about the incident. Instead he reported the incident as soon as it happened.
Max was stood down and another driver was sent out to pick up the truck to take it back to the yard.
The prime mover or the turntable was sent to Jost and apparently they found no fault with the turntable.
Linfox determined that Max had not followed the coupling procedure and his employment was terminated.
A few weeks after Max was dismissed, Linfox replaced the turntable on Linfox 202. I thought that was odd given that Jost had found that there were no problems with it. I believe that the turntable was replaced after another driver, Merv Kent, reported problems with the turntable.
I recall that I had a conversation with Scott Clulow (Depot Manager) about the replacement of the turntable. The conversation was as follows:
Myself: “Why was the turntable on Max’s truck replaced?”
Scott: “According to Mike Bird (workshop manager) it was nearing its time to be replaced”.
After Max was sacked I was involved in a meeting between TWU representatives and Gaylene Neil who was the HR Manager. The meeting was arranged to discuss the termination of Max’s employment and to seek his re-instatement.
At the meeting I gave to Gaylene a document that outlined the problems with Fox 202 and problems with turntables on other Linfox prime movers. A copy (unsigned) of that document is attached and marked “KA-1”.
Linfox did not re-instate Max Tillitson. Max died last year.”
[88] The previous Respondent policy allowed for 4 strikes for infringements before an employee’s employment was in jeapordy. Mr Clulow was questioned about the implications of a decoupling during the tug test that decoupled onto the fifth wheel with potentially no damage but potentially damage if decoupled onto chassis (glass, fragile products may be damaged). The Applicant at the time had a trailer of alumina, a powdery substance.
[89] Emails of 19 and 24 August 2011 from Mr Christopher Hensworth, National Safety Manager, were tendered, including a toolbox safety alert. These emails provided an alert regarding a decoupling incident, not at the Respondent, as follows:
“Please find attached a Toolbox Safety Alert titled Dropped trailer leaves man fighting for life following a tragic incident that occurred in Melbourne yesterday.
Facts: A man is fighting for his life after a trailer fell free from a truck and careered into his car in Melbourne’s outer west yesterday afternoon.
The man, aged in his 30s, was trapped in his car and suffered multiple fracture and possible abdominal injuries.
He was flowing to The Alfred hospital in an induced coma, an Ambulance Victoria spokeswoman said.
A nine-month-old baby girl and a woman, believed to be the man’s wife and daughter, were uninjured but were taken to hospital for observation.” 47
[90] The correspondence also included a direction to the Respondent’s managers as follows:
“Please communicate the content of this Toolbox Safety Alert with all drivers including Employee, Agency, Haulier and Subcontractors.
Please reinforce with all drivers that Linfox applies ZERO Tolerance to unsafe behaviour and practices and any driver found responsible for a trailer coupling failure will be removed from the business.
Completed toolbox Safety Alert Briefing Attendance Forms are to be returned with Weekly Safety Returns to Linehaul Weekly Safety Reports email address on the global address listing by 13:00 on Monday 12 Sep 11.” 48 (emphasis in original)
[91] Mr Clulow confirmed that this was not the first time such a direction was provided.
[92] The Respondent considered that this has lead to a consistent approach that, where it is determined that a driver has failed to follow the Procedure, and absent mechanical failure, the conduct is serious and justifies termination of the driver’s employment.
[93] The Respondent submitted that Mr Clulow determined that the Applicant had breached the Procedure and, accordingly, had committed an act of serious misconduct.
[94] The Respondent was mainly in agreement with the factual scenario provided by the Applicant’s material.
[95] The Respondent submitted that the Jost report found that the lock jaw and lock bar were in good working condition with no obvious “witness marks” and further, that the fifth wheel was operating correctly. Jost further found that the fifth wheel did not couple correctly; the handle was not in al the way and the safety latch had not engaged. This “implied” that the incident occurred as a result of human error. A visual inspection, as required by the Procedure, could have identified the failed coupling.
[96] The Respondent’s evidence as to the termination meeting is significantly in conflict with the Applicant’s.
The day of the incident
[97] Mr John Guckley, Fleet Controller for the Respondent, was present on the day of the incident and was the first to respond to the Applicant. Mr Buckely gave evidence that he attended at the vehicle and made an inspection while waiting for Mr Clulow to arrive. Mr Buckley stated that he did not observe an over abundance of grease “on or around” the fifth wheel. 49 Mr Buckley also stated that he did notice that the handle was sticking out. Mr Buckley confirmed that the Applicant’s statements shortly after the incident were that he had complied with the Procedure.50 Mr Buckely stated that when Mr Clulow arrived and the Applicant recounted his version of events, those events were consistent with the Procedure.51
The termination meeting
[98] The Respondent’s evidence is that at the termination meeting, the Applicant was asked to provide his version of events. The Respondent generally accepts that the Applicant maintained throughout the meeting that he had followed the Procedure and that the statement he prepared shortly after the incident was an accurate reflection of his recollection. However, during the final meeting Mr Clulow stated he noted that the Applicant recanted this position.
[99] Mr Clulow stated that he read the Jost report to the Applicant “word for word” and asked the Applicant to respond with any concerns he had with the contents of the report. It is Mr Clulow’s evidence that the Applicant responded by saying words to the effect of “I am not sure if I checked if the locking handle was all the way in”. 52
Consideration
[100] Section 387 of the Act (extracted above) set out those matters that the Commission must consider in relation to an unfair dismissal application. Each will be considered in turn.
(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)
[101] The Applicant submitted that there must be a valid reason for the termination, related to the employee’s capacity or conduct. The Applicant submitted the well known test, that the reason must be “sound, defensible or well founded”. 53 The Applicant submitted that the Respondent bears the onus of demonstrating that the conduct complained of was sufficiently serious to justify summary dismissal.54 The Respondent conceded that it bore the onus of proof of demonstrating that the alleged misconduct took place.55
[102] The Applicant denies the alleged misconduct. The Applicant submitted that he complied with the policy and that because of that compliance he was able to identify the failed coupling (ie by performing the tug tests the coupling failure was identified).
[103] The Applicant submitted that the three stage tug test, required by the Procedure, was to ensure that the “trailer is securely hitched and the trailer brakes are serviceable” or “the confirm [the] trailer is securely hitched, and supply and service pressure to the trailer brakes have reached operating levels”. Given this purpose, the Applicant submitted that the Respondent cannot complain where the policy is followed and a problem is identified consistent with the purpose of the tests.
[104] The evidence of Mr Allan, a Driver of Linfox as to why he performs tug tests was put as follows:
“I perform the tug tests to confirm that the trailer has coupled correctly to the prime mover. The second tug test will determine whether I have made an error in any of the visual checks or whether there is a mechanical fault with the turntable. The second and third tug tests are also used to check that the brakes of the trailer and prime mover are working.” 56
[105] The Applicant submitted that the Jost report was an insufficient basis for concluding that the Applicant had failed to perform visual checks during the coupling process. If the Commission is satisfied that the Applicant was negligent in this regard, the Applicant submitted that such conduct would nevertheless be questionable as constituting serious misconduct and summary termination.
[106] In this regard, the definition of serious misconduct in the Agreement, relevantly including the words “misuse or abuse of equipment”, was submitted as an indication of an element of intention to cause damage or reckless indifference to causing damage.
[107] The Applicant submitted that termination provisions in an Agreement that confer a right of summary dismissal upon an employer, will generally be construed as incorporating the common law principles, unless specifically dealt with by the Agreement. 57 The common law principles, it was submitted, are incorporated into the Fair Work Regulations 2009 which defines serious misconduct at regulation 1.07.
[108] Consequently, the Applicant submitted that, at common law, an employer may be entitled to dismiss an employee summarily if they are negligent in the course of their employment. The Applicant submitted however that it would need to be a “very grave case of negligence, causing substantial damage to justify dismissal for a single act of negligence”. 58
[109] The Applicant submitted that the following matters ought to be considered by the Commission in making a finding as to whether the Applicant engaged in serious misconduct:
“The Applicant’s claim that he followed the coupling and uncoupling procedure correctly and evidence suggesting that the Applicant was diligent in his performance of the procedure;
The purpose of the procedure and in particular the purpose of tug tests and particularly those tug tests conducted after visual checks have been performed and the trailer brakes have been applied;
The manner in which the turntables of the Linfox Linehaul fleet of trucks were and are maintained by Linfox and in particular the failure by Linfox to clean away the build up of excessive grease on the turntable thereby making the locking tab and release handle less visible to the driver and increasing the risk that the release handle might slip out (see paragraphs 450, 460, 530 and 540 of the expert report of Mr Hart);
The fact that Linfox do not follow industry best practice by ensuring that the release handle of the turntable is painted with brightly coloured paint and that a work light is provided (see paragraph 520 of the expert report of Mr Hart).” 59
[110] If a finding of serious misconduct cannot be made, the Applicant submitted that the Commission should have regard to the Respondent’s driver behaviour policy (the Policy). The driver behaviour policy is reflected in clause 64 of the Agreement, which states:
“Linfox requires strict compliance with its Driver Behaviour Policy. This policy was formerly known as the Three Strike Policy.”
[111] The application of this policy is such that if a finding of serious misconduct is not made, the application of the Policy would have resulted in the Applicant being given “half a strike” and his employment maintained on the basis that the incident in question did not cause damage to the Respondent’s property.
[112] The Respondent submitted that the Applicant was dismissed for failing to follow the Procedure; a procedure in which the Applicant was trained.
[113] That conduct, if proved, was said to be a serious risk to the Applicant’s health and safety, that of his fellow workers and more generally the public.
[114] The Applicant was sufficiently aware that health and safety was a priority for the Respondent and that a breach of the policy could lead to disciplinary action being taken. These obligations were contained in the Applicant’s contract of employment, the Agreement, the Policy and reinforced at toolbox meetings. This does is not disputed by the Applicant.
[115] The Respondent also took into account the inconsistency of the Applicant’s written statement and that he maintained he followed the Procedure and the concession that the Respondent alleged the Applicant made at the termination meeting that the Applicant was not sure if he checked the locking handle. The Applicant made the concession during cross-examination that he may have missed something.
[116] The Respondent submitted that it conducted a “full investigation” into the incident, including obtaining “expert advice” to rule out mechanical failure. It is the findings of that expert advice which the Respondent relies upon. Specifically the evidence was submitted to be:
“the handle of the fifth wheel was in the out position;
there was no mechanical failure of the fifth wheel; and
the fifth wheel failed to couple correctly.” 60
[117] The Respondent submitted that the only conclusion consistent with this evidence was a failure on the Applicant’s part to follow the Procedure. That failure was said to be that if he had complied with the Procedure he would have identified that the handle of the fifth wheel was in the out position and that the safety latch was not in place.
[118] The Respondent submitted that the conduct is consistent with the Regulations in that the Applicant’s actions were both wilful and deliberate in that he knew of the Procedure and he failed to follow the Procedure. Further, the conduct was said to cause a serious and imminent risk to the health and safety of the Applicant and others.
[119] The Respondent submitted that it has discharged it’s onus to establish that the conduct took place and submitted a significant number of previous decisions to establish that a safety breach can be a valid reason for termination. 61
[120] In relation to s.387(a), the question for determination is: did the alleged conduct occur, and if so, did that conduct amount to a valid reason for dismissal.
[121] The conduct that the Commission must consider is the allegation by the Respondent that the Applicant did not follow the coupling procedure; specifically that the Applicant did not complete, or thoroughly complete, the visual checks required of him.
[122] The Respondent has reasoned, on the basis that Jost could not find any mechanical fault with the fifth wheel, that the mechanism must not have locked or coupled fully and that had the Applicant performed the visual checks appropriately, this failure to lock would have been identified prior to the tug tests having been conducted and the trailer detaching or dropping.
[123] The Applicant’s case is that he did complete all the checks that were required of him. The Applicant poses two alternative scenarios for consideration: that the coupling mechanism did fail to couple but that the visual check could not have identified this, and/or, there was so much grease present on the fifth wheel that this obstructed the Applicant’s view to a point where he was unable to tell, by completing the visual inspections, whether the locking mechanism had fully engaged.
[124] On the balance of probabilities the evidence leads to a finding that the applicant did not undertake the visual inspections appropriately.
[125] I have discounted the Applicant’s grease theory for two main reasons: one, the Applicant’s evidence is not that there was so much grease at the time of the incident that it did in fact obscure his view, and, two, that even if it did obscure his view, the appropriate course of action was to remove the grease or report such to the Respondent and not continue to couple the trailer in an unsafe manner.
[126] As to the first reason, the Applicant’s evidence is that he checked the handles and he “believed that [he] saw that the “L” shaped locking tab was in the down position”. 62 Further, in the contemporaneous statement that the Applicant produced shortly after the incident the Applicant stated that “[he] noticed the pin in [the] lock[ed] position” and consequently he continued to perform the coupling procedure.63 The purpose of the visual inspections is undoubtedly for the driver to satisfy him or herself that the locking mechanism has engaged fully. If a driver is unable to satisfy themselves accordingly the appropriate course would be to abandon the coupling and retry or contact the Respondent to notify a possible mechanical failure.
[127] The consistent evidence of the Respondent’s witnesses was that the grease present on the fifth wheel in question was consistent with that ordinarily seen on other trucks. As a matter of probability if the presence of grease is such a serious issue, then it would be a more prevalent issue causing coupling failures. There is no evidence of such an issue previously.
[128] Mr MacDonald conceded, in cross-examination, that the photo showing the fifth wheel does not have a trailer on it and therefore must have been moved. He also conceded he did not look at the compliance plate on the fifth wheel. Mr MacDonald says it was possible that the compliance plate was covered in grease. In relation to the grease he stated:
“Grease on the fifth wheel acts as a lubricant between the skid plate and the fifth wheel, both of which are made of metal. If there is not a sufficient amount of grease, there is a risk that metal shavings may be produced.
On inspection of the fifth wheel, the amount of grease was not any more excessive than what I have observed on other fifth wheels.” 64
[129] Mr MacDonald agreed however, that it was best that the secondary latch is free of grease. It was put to Mr Martin that the fifth wheel should be cleaned in accordance with Jost’s recommendations, Mr Martin countered that if grease is impeding the driver’s view of the locking mechanisms in during coupling, someone should clean the grease.
[130] Mr MacDonald set out the operation of the secondary safety latch as follows.
“Where the handle of the fifth wheel is in the out position, it indicates the fifth wheel has not locked and the driver has not come back far enough and touched the king pin.
There is a secondary safety latch located next to the handle. If this latch is observed as being horizontal, it indicates that it is open and has not locked into place. If the latch is observed as having dropped down and the handle is in, this indicates that the handle has locked into place and has connected properly.
The safety latch will not drop down unless the handle is in all the way.” 65
[131] In relation to the cleaning of the fifth wheel, Mr MacDonald stated that excess grease can be wiped off with a piece of cardboard. The fifth wheel model in question was the dual height fifth wheel; the servicing of this equipment is dealt with at page 19 of the Jost JSK-DH document. 66 The servicing requirements particularly stated:
- Clean the duel height fifth wheel...”
“The following section describes how to service and clean the dual height fifth wheel.
The servicing and cleaning work for the fifth wheel coupling is described in separate installation instructions and owner’s handbook.
4.1 Cleaning
The deal height fifth wheel is to be cleaned with the remainder of the vehicle. No special cleaning is required.
The dual height fifth wheel is to be cleaned before every service.
Do not aim a high pressure cleaner directly at bearings or grease nipples.
4.2 Servicing work
The servicing work is to be completed at short intervals, at the latest every 40,000 km.
The following work is required for a complete service:
[132] Mr MacDonald in response to questioning stated that a foreign object (potentially arising from the greased surface) would not interfere if the latch arm was closed, if the foreign object did interfere with putting the latch arm in closed position, the latch arm would not drop.
[133] The second scenario submitted by the Applicant was that the coupling mechanism was, essentially, mechanically deficient in that it was possible for the locking mechanism to, upon visual inspection, look as though it has locked fully but not in fact be locked. This scenario was put as a possibility even in the absence of any identified mechanical defect in the fifth wheel.
[134] The Applicant relied upon the evidence of Dr Hart in this regard. With respect to Dr Hart, I am unable to conclude, on the basis of the material and evidence provided and on the balance of probabilities, that it is possible for a fifth wheel to look as though it is fully locked, and therefore has correctly coupled, when it is in fact not in the fully locked position and can “uncouple”.
[135] Dr Hart, at the commencement of the hearing in this matter, made significant amendments to his expert report, some of which were substantial amendments. The Doctor also made a number of amendments to the terminology used throughout his statement. I have also taken into account that Dr Hart has not personally viewed the specific locking mechanism in question in this matter. The consistent evidence of the Jost witnesses was that it was not possible for a fifth wheel to appear locked, when it is not in fact locked.
[136] The Applicant submitted that the Jost report should be attributed little weight in the consideration of this matter. The Applicant questioned the report on the ground that Jost was biased in its assessment due to the nature of the commercial relationship between Jost and Linfox. The Applicant submitted that Jost was unlikely to identify a mechanical fault in the equipment that they manufacture for fear of losing their contract of supplying such to Linfox. I discount this entirely. The evidence is that Jost has previously reported on mechanical faults in incidents involving a coupling failure. In these instances the driver was not found at fault and was not disciplined.
[137] It also arose during evidence that the Jost report was copied from a previous report prepared for Linfox in relation to a fifth wheel inspection. Mr Martin’s evidence in this regard was that he had used a previous report but had not correctly amended the report to reflect the specific fifth wheel inspected in this matter. Whilst Mr Carter was correct in adducing during cross-examination that this was not merely a typographical error, Mr Martin was consistent in his evidence that the Jost report was provided as a result of the inspection undertaken by Mr MacDonald. I accept this evidence. However, the use of the template document was somewhat disappointing given the known serious consequences for the employment (of the Union’s members) that can flow from the findings of Jost’s report.
[138] I am satisfied, on the substantive weight of the evidence, that the Applicant did fail to adequately conduct a visual inspection as required by the Procedure. The Applicant conceded that he might have missed something in conducting his visual inspections. 67 The Applicant’s evidence, during cross examination, was also that he wasn’t sure if he had missed something or if it was his fault.68 It was visible on the CCTV footage that the Applicant did a “walk around” the vehicle before conducting the further tug tests but the footage was obstructed of the Applicant conducting the visual inspection of the locking handle. On the basis of the Jost report, the evidence and the uncoupling, I am not satisfied that the Applicant performed the visual test to the requisite standard. Had the Applicant done so, on the balance of probabilities (and in the absence of a mechanical fault), the failure to couple would have been identified or, if the view of the mechanism was impeded by grease, the Applicant should have abandoned the process to remove grease and then recommenced the procedure. The Respondent has discharged the onus of proof that the Applicant engaged in the conduct as alleged, consistent with clause 42.2 of the Agreement. The conduct provided a valid reason for dismissal, particularly against the evidence that the Respondent repeatedly reinforced compliance with the Procedure.
[139] The next question is: was the conduct as found sufficiently serious to justify summary dismissal? I find that it is.
[140] The Applicant attempted to draw a distinction between a coupling failure that occurs “in the yard” or once the journey has commenced. I see no utility in drawing such a distinction. The possible consequences of a coupling failure are significant whether it occurs in the yard or on the road. The Applicant conceded that the Procedure is a very important safety procedure and the most important procedure that the Applicant followed. 69 The evidence in this matter includes evidence of a coupling failure that occurred “in the yard”. That incident involved serious injury to the employee.
[141] A coupling failure has the potential to cause, at worst, a serious risk to life, whether it is in the yard or on the road. There is also a risk of damage to the Respondent’s assets, being the truck and trailers and potentially the contents under transport, and the Respondent’s business. The evidence is, and the Applicant accepted, that the Procedure and compliance with it is continually reinforced by the Respondent. 70 The Applicant also accepted that a failure to carry out the Procedure is unsafe behaviour.71
[142] The evidence in this matter did give rise to a question as to whether the Applicant was conducting his final tug test or whether he had finalised the tug tests and was commencing his journey. The Applicant’s evidence was that he was performing a final tug test when the coupling failure occurred. The submission followed that this was a less serious breach than if the coupling failure had occurred while on his journey. The Applicant submitted that the purpose of the tug test is to identify coupling failures and that where a coupling failure occurred during the tug test the employee should be subject to a lesser disciplinary penalty than if the coupling failure had occurred on the road.
[143] The distinction drawn by the Applicant is this regard is verging upon an exercise in semantics. The consequences of a coupling failure are serious, whether it occurs on the road or as a result of a tug test. The Procedure is predicated on the understanding that an employee has, prior to completing the final tug tests, performed a thorough visual inspection and satisfied him/herself that the coupling had occurred and the locking mechanism has fully engaged. The tug test cannot be said to act as a “backup” for if the employee fails to perform visual inspections appropriately.
[144] In any event the Applicant’s evidence that he was conducting a “third” tug test is unconvincing. The Applicant, during cross-examination, introduced into his evidence that it was his usual practice to conduct three tug tests, rather than the two required by the Procedure. 72 This evidence was said to arise after having seen the CCTV footage which was only produced by the Respondent late in the previous week as a result of an order to produce.
[145] It was put to the Applicant in cross-examination that this usual practice of three tug tests was not in any of his previous evidence, including the statement that he wrote on the day of the event. 73 The Applicant’s recent introduction of the third tug test into his evidence is unconvincing. On the balance of probabilities I am satisfied that the Applicant had, at the time of the coupling failure, intended to commence his journey, having completed the two mandatory tug tests. I note however that this conclusion would not have otherwise altered the ultimate finding of this decision.
[146] However, against the Procedure, the Vision Zero and the evidence in this matter, the Applicant’s conduct was sufficiently serious to justify dismissal. I have taken into account the Applicant’s individual circumstances.
[147] The Applicant submitted that the conduct was however not sufficiently serious to justify summary or instant dismissal; that is without notice. This submission centred on the use of “abuse and misuse” as that term appears in the Agreement. Having made findings on a consideration of the evidence and submissions, that the Procedure is a serious safety procedure and that the Respondent continually reinforced compliance with the Procedure (through regular toolbox meetings) I am satisfied that the conduct was sufficiently serious to justify summary dismissal. The potential ramifications o the incident are at the highest possible consequence for the Applicant, his fellow employees, the Respondent and the general public.
(b) whether the person was notified of that reason;
[148] The Applicant submitted that notification of reasons for termination must clearly set out the grounds relied upon. 74 The Applicant submitted that the Applicant was terminated as a result of the incident and that the report from Jost concluded that driver error was to blame. The Applicant reiterated that he was not provided with a copy of the Jost report, despite a request from the Applicant’s representative.
[149] The Respondent submitted that the termination meeting was convened to consider the Jost report and to “notify” the Applicant that he was required to show cause as to why his employment should not be terminated.
[150] It was submitted that after failing to provide any compelling reasons as to why employment should not be terminated the Applicant was notified of the reasons. There is no mention as to why the Applicant was not provided with written notification of his dismissal and the reasons for such.
[151] I find that the Applicant was notified of the reason for dismissal at the meeting. Written notification of the dismissal and the reasons for such are conspicuously absent in this matter. However, even on the Applicant’s evidence he was aware of the reason for the dismissal. Whether he was provided with the Jost report is not relevant to a consideration of whether he was notified of the “reason”; it is however discussed below.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[152] The Applicant submitted that the obligation is a positive obligation upon an employer to put all the allegations against an employee to them, before requesting a response. 75
[153] The Applicant submitted that he was not afforded an adequate opportunity to respond to the allegations and that he was not, given the Applicant’s evidence regarding Mr Clulow’s statements that he was not the ultimate decision maker, afforded an opportunity to respond directly to the person making the decision.
[154] If the Applicant’s evidence regarding Mr Clulow’s statements is accepted, the Applicant submitted a denial of procedural fairness existed where the Applicant did not have the opportunity to put his case face to face with the actual decision maker. 76
[155] Further to this submission, the Applicant stated that a predetermined decision can be seen from the timeline of events in that the Melbourne based manager, the ultimate decision maker, must have made a decision prior to Mr Clulow discussing the matter with the Applicant and conveying the termination decision. Any response given by the Applicant was said to be futile, given that any response he had put could not have been conveyed to the decision maker prior to the ultimate decision and communication of that decision.
[156] Further the Applicant submitted that without a copy of the Jost report, relied upon by the Respondent, the Applicant was unable to seek advice regarding that report and appropriately respond.
[157] The Respondent submitted that it did afford the Applicant procedural fairness in both the investigation and the disciplinary process. This included the Applicant being given the opportunity to provide a written statement and to respond to the allegation at the termination meeting.
[158] The Respondent’s submissions do not address why the Jost report was not provided to the Applicant.
[159] I find that the Respondent has not provided the Applicant with a full opportunity to respond to the report. The report has played the central consideration in the Respondent’s conclusions as to the alleged misconduct. Whilst, the Report is concise, it is of a somewhat technical nature and it would have been appropriate to provide to the Applicant so that he could consider its contents, the finding made within it and formulate a response. The fact that Mr Clulow read the report to the Applicant is not sufficient in this case. The Respondent has not provided any submission or evidence as to why the Jost report was not provided or could not have been provided to the Applicant, and a break taken to allow he and his representation to consider it and respond.
[160] I also find that Mr Clulow was, commensurate with his evidence, the ultimate decision maker in relation to the Applicant’s dismissal. Mr Clulow’s evidence was consistent that, while he did seek advice or discuss the dismissal with his colleagues in Melbourne, it was in the end his decision.
[161] I note the evidence in this matter indicating a strong direction from the Respondent’s senior managerial employees in Melbourne, regarding the business expectations of managers when faced with incidents such as the present. I am unable to reach a view however that this somehow meant that Mr Clulow was not the decision maker. It was Mr Clulow who dealt with the Applicant following the incident and who conducted the termination meeting. It is however not unusual for a company to have strict standards in place for an employer in relation to employee matters. The Respondent was clear in terms of its consistency of approach to coupling matters, particularly emphasising these safety matters.
(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
[162] The Applicant concedes he was provided the opportunity to have a support person with him at the discussion relating to the dismissal. This did in fact occur, with Mr Buchanan being present as the Applicant’s support person. However, it is recognised that whilst Mr Buchanan was brought back early from leave to provide support to the Applicant, he was given no forewarning of the reason for this, nor were he, or the Applicant, provided with the Applicant’s initial written account of the incident, the Jost report or a letter of termination.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[163] The Applicant conceded his previous incident for which he received “one strike”. The Applicant submitted however that the scratch that resulted in the strike was never repaired by Linfox and should only have attracted a half strike.
[164] The Applicant reiterated that he was otherwise of good standing amongst the Respondent’s employees and “perhaps” local management.
[165] The Respondent did not make any submissions as to this matter. This incident alone, on the material, formed the basis of the dismissal.
(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
[166] The Respondent is a large, national employer, employing over 5000 employees, with dedication employee relations advisors. The deficiencies in procedural fairness offered to the Applicant, whilst not fatal in this matter, should not occur in the practical discharge of a matter by this Respondent given its size and the serious outcome for the Applicant.
(h) any other matters that the FWC considers relevant
[167] I have taken into account the Applicant’s personal circumstances. The Applicant is a father of 5 children, with 3 children under the age of 10. 77 One of these young children is approximately 6 months of age and the Applicant is expecting another child in the near future. The Applicant is responsible for the payment of maintenance in respect of his older children. The Applicant has received support from Centrelink. The Respondent acknowledged these matters but submitted they should not discount the Applicant’s conduct as it was “clearly” serious enough to justify dismissal.
[168] I have also had regard to the Applicant’s employment history. The Applicant submitted that he had a good employment record with the Respondent, and was well regarded by both his peers and Linfox local management. 78 The Applicant did however give evidence of a prior disciplinary incident whereby the wheel of a trailer was scraped on a weighbridge.79 The Applicant stated that this incident occurred on 27 July 2012 and as a result he was issued with a “strike” under the Respondent’s disciplinary policy. The Applicant’s evidence is that he is not entirely clear on what occurred following the incident but that he recalls signing paperwork in relation to “what seemed to be” an insurance claim.80 The Applicant does not dispute that this incident occurred but does dispute the issue of a full strike for the incident. There is no further detailed evidence or submission regarding this matter.
[169] In a wider context, the Applicant submitted that the Commission should have regard to the effect that the summary termination of employees who report detached trailers will have on the “reporting culture” within the Respondent. The Applicant submitted that the disciplinary action evident in this matter will not encourage a reporting culture amongst the Respondent’s employees. On the material the Respondent has taken this into consideration in its operations, in balancing the potential hazards associated with failed coupling incidents.
Conclusion
[170] I find on the balance of probabilities that the Applicant did not perform the visual checks required of him by the Procedure or, at least, did not complete them to the requisite standard. I have discounted the alternate theories posed by the Applicant regarding the visual checks on the basis of the evidence before the Commission.
[171] I find that failing to perform the visual checks was a valid reason for his dismissal because of the serious potential consequences that this created for the health and safety of the Applicant, the Applicant’s fellow employees and the general public. This reason is defensible in the face of the evidence before this Commission.
[172] While I have noted some procedural defects in the manner in which the termination meeting was handled and, in particular, the provision of information to the Applicant, these defects in relation to the current circumstances have not altered the current outcome. They were not so serious as to have precluded the Applicant fairness in the way the Respondent dealt with the termination. The Applicant had sufficient knowledge of the incident, he had recorded his view of such, and the Jost report’s outcome was short enough to have been comprehensible at the meeting. Further, the link between the finding and the disciplinary outcome had been clearly and repeatedly enunciated as being the approach the Respondent would take to such incidents.
[173] For the aforementioned reasons the Applicant’s dismissal was not harsh, unjust or unreasonable.
[174] The application filed pursuant to s.394 of the Act is therefore dismissed.
[175] I Order accordingly.
COMMISSIONER
1 Affidavit of Ganesh Changan at para 51.
2 Affidavit of Ganesh Changan at para 51.
3 Affidavit of Scott John Clulow at SJC-2.
4 For example Affidavit of Kenneth Allan at para 11.
5 See Affidavit of Kenneth Allan at para. 6.
6 See Affidavit of Kenneth Allan at para 7.
7 Affidavit of Ganesh Changan at para 12.
8 Affidavit of Ganesh Changan at para 13.
9 Affidavit of Ganesh Changan at para 17.
10 Affidavit of Ganesh Changan at para 18.
11 Affidavit of Ganesh Changan at para19.
12 Affidavit of Ganesh Changan at para 20.
13 Affidavit of Ganesh Changan at para 20.
14 Affidavit of Ganesh Changan at para 23.
15 Affidavit of Ganesh Changan at paras 24 to 25.
16 Affidavit of Ganesh Changan at para. 31.
17 Exhibit 26.
18 Affidavit of Scott Clulow at SJC10.
19 Affidavit of Ganesh Changan at para 40.
20 Affidavit of Ganesh Changan at para 43.
21 Affidavit of David Buchanan at para 4.
22 Affidavit of David Buchanan at para 7.
23 Affidavit of David Buchanan at para 7
24 Affidavit of Ganesh Changan at para 46.
25 Affidavit of David Buchanan at para 12.
26 Affidavit of David Buchanan at para 11.
27 Affidavit of Kenneth Allan at para 39.
28 Affidavit of Ganesh Changan at para 52.
29 Affidavit of Ganesh Changan at para 57; Affidavit of Kenneth Allan at para 44.
30 Affidavit of Ganesh Changan at para 53.
31 Also see Affidavit of Kenneth Allan at para 40.
32 Affidavit of Ganesh Changan at para 54.
33 Affidavit of Ganesh Changan at para 54.
34 Affidavit of Ganesh Changan at para56.
35 Affidavit of Kenneth Allan at para 43; Affidavit of David Buchanan at paras 25 to 26.
36 Affidavit of Mr James Dene Eleison at paras 23 to 24.
37 Affidavit of Robert James Martin at para 2.
38 Affidavit of Robert James Martin at para 7 to 8.
39 Report of Dr P Hart at p3.
40 PN471 to PN476.
41 Report of Dr P Hart at p8.
42 Report of Dr P Hart at p19.
43 Report of Dr P Hart at p19.
44 Affidavit of Robert James Martin at paras 43 to 46.
45 Affidavit of Scott Clulow at SJC-1.
46 Ibid.
47 Exhibit 17.
48 Exhibit 17.
49 Affidavit of John Gerard Buckley at para 11.
50 Affidavit of John Gerard Buckley at para 9.
51 Affidavit of John Gerard Buckley at para 13.
52 Affidavit of Scott Clulow at para 51.
53 Selvachandran v Peteron Plactics Pty Ltd (1995) 62 IR 371 at p373.
54 Miller v AIRC (2001) 108 FCR 192.
55 Respondent outline of submissions at para 24.
56 Affidavit of Kenneth Allan at para 6.
57 Printing Industry Employees Union of Australia v Jackson O’Sullivan Pty Ltd (1957) 1 FLR 175.
58 Elcom v ETU 5 IR 267.
59 Applicant outline of submissions at para 32.
60 Respondent outline of submissions at para 25.
61 For example Ross Kitchen v E Karras Refrigerated Transport & Storage Pty Ltd [1999] AIRC 550; Travis Northey v Bradken Resources Pty Ltd [2013] FWC 6423.
62 Affidavit of Ganesh Changan at para 20.
63 Affidavit of Scott Clulow at SJC-10.
64 Affidavit of Colin MacDonald at paras 18 to 19.
65 Affidavit of Colin MacDonald at paras 24 to 27.
66 Exhibit 18.
67 PN1185.
68 PN1255.
69 PN1131.
70 PN1137 to PN1141.
71 PN1151.
72 PN1333.
73 PN1340.
74 Gutteridge v AC & R Pty Ltd (1998) AIRC Print P7971.
75 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50.
76 Allan Robinson v Woolworths Limited [2012] FWA 1179.
77 Affidavit of Ganesh Changan at para 3.
78 Applicant outline of submissions at 4.
79 Affidavit of Ganesh Changan at para 59.
80 Ibid.
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