Mr Iain Lockyear v Freight and Logistics Queensland Pty Ltd T/A CNQ Freight Services

[2021] FWC 4020

[2021] FWC 4020

FAIR WORK COMMISSION

DECISION

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

Mr Iain Lockyear
v
Freight and Logistics Queensland Pty Ltd T/A CNQ Freight Services
(U2020/11234)

DEPUTY PRESIDENT LAKE BRISBANE, 9 JULY 2021

Application for unfair dismissal remedy – whether Applicant’s conduct constituted misconduct – whether dismissal harsh, unjust or unreasonable – application dismissed.

[1] On 19 August 2020, Mr Iain Lockyear (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that he was unfairly dismissed from his employment with Mr Graeme Cox. The application was subsequently amended to name Freight and Logistics Queensland Pty Ltd T/A CNQ Freight Services (the Respondent/CNQ) as the appropriate Respondent to the application. It is appropriate to exercise the discretion under s.586 to amend

[2] The Applicant was dismissed by the Respondent on 10 August 2020, for failing to follow a directive of Mr Cox, and for previous conduct including a breach of the Respondent’s Drug and Alcohol Policy. The Applicant contended that there was no valid reason for his dismissal, that he was not previously provided any warnings or notice, and that he had been underpaid by the Respondent.

[3] An application was lodged by the Applicant on the 19 August and a conciliation was held on the 9 September and was unsuccessful the matter was then allocated to my Chambers. I issued directions and following further communications a date was set down for an in person conference. Due to repeated non-compliance, I initially dismissed the application. The Full Bench, having overturned that interlocutory decision under s.546, re-allocated the matter to me for determination on the merits.

[4] The matter was listed for hearing on 15 March 2021. The Applicant appeared on his own behalf.The Respondent sought to be represented by Mr Sam Sciacca of Optimum Legal. Granting permission to be represented under s 596 requires the satisfaction of two elements.    1 The first pre-requisite: the presence of one of the criteria under s 596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3 In this matter, I was satisfied that the assistance of legal representation would allow the matter to run more efficiently. It was particularly important that the Respondent be legally represented because it is a business run by Mr and Mrs Cox, both of whom were to be called as witnesses. In those circumstances, it would be difficult for the Respondent to be properly represented without legal assistance. Accordingly, I gave Ms Sciacca permission to appear.

[5] At the hearing, the Applicant gave evidence on his own behalf. The Respondent called Noel Tomkins, Graeme Charles Cox and Diane Margaret Cox. I will deal with each witness’ evidence below.

Background

[6] The Respondent is engaged in long haul logistics and freight distribution services across Queensland and interstate. The Respondent services linehauls on average of 30 trucks per week into Far North Queensland, with delivery times that are managed with driver logbook hours, driver breaks and availability.

[7] The Respondent employs approximately 27 employees, with operations and administration staff based in Brisbane and Cairns. All other employees are employed to undertake general administrative duties, or to drive trucks or forklifts as their duties require.

[8] The Applicant was employed by the Respondent on 28 October 2018 as a Linehaul Driver, towing a B double set of trailers. His employment was in accordance with the Road Transport (Long Distance Operations) Award 2020. The Applicant was employed by the Respondent for approximately 22 months.

[9] The Respondent provided that the Applicant had engaged in inappropriate conduct during his employment, including:

a) making inappropriate comments of a sexual nature about another employee;
b) breaching the Drug and Alcohol policy; and
c) making disrespectful and threatening statements to employees in breach of the CNQ Professional Drivers Manual.

[10] The Applicant was dismissed on 10 August 2020, for failing to follow a direction given by Mr Cox on 8 August 2020, in addition to the conduct as outlined above.

Preliminary matters

[11] Several preliminary matters are required to be considered prior to determining whether the Applicant was unfairly dismissed. The application was made within the time required in s.394(2) of the Act. It is not in dispute that the Applicant is a person protected from unfair dismissal consistent with s.382 of the Act, that the Respondent is not a small business or that the dismissal was not a case of a genuine redundancy. Further, there was no dispute that the Applicant’s employment was terminated at the initiative of the Respondent. I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the Act.

[12] Havingdisposed of any potential jurisdictional issues, I now turn to consider the merits of the Applicant’s application.
Applicant’s Submissions and Evidence
[13] The Applicant filed various handwritten submissions in this matter. It should be stated that these handwritten submissions were no more than a few sentences. They were brief, at times unsubstantiated, and did little to address the legal question of whether the dismissal was unfair. With that said, in addition to the further evidence and oral submission made at the hearing, the Applicant’s case can be understood as follows.

[14] The Applicant submitted that he had worked for the Respondent for just under two years, that Mr Coxwas violent, and had been “ripping him off” along with other staff members. He submitted that his employer had at times sworn and “gone off his handle” at him.

[15] The Applicant submitted that during his employment, he had undergone an operation, and had advised the Respondent he would be off work for around 4 weeks. He said that during his time off, the Respondent made a number of calls to him, including at the 3-week mark when he says his employer “went of (sic) and abused [him]”.

[16] The Applicant said that he then returned to work. However, he said that there were issues at work, including that he had to say “yes” all the time and could not say “no”, otherwise his employer would “go of (sic) and swear and yell at staff”.

[17] He said that his employer called him on 10 August 2020 and swore and yelled at him “like [he] was a Dog”. The Applicant said that he “put up” with this for 5 minutes, and then said:

“take you (sic) chill pills and then he said get out of the Truck and left me stranded in Townsville swear & yelling and said went (sic) you get back to the yard in Brisbane I am going to Bash you”.

[18] The Applicant alleged that Mr Cox began yelling, screaming and carrying on. When the Applicant told Mr Cox to relax, he reportedly responded by yelling, “Don't tell me to do that, I'm going to belt you and bash you when - you can get out of my effing truck and get out… get out of my truck and just leave it parked there.  Get out of my truck.” 

[19] Further, the Applicant submitted that the Respondent underpaid his entitlements by approximately $11,500.

[20] The Applicant explained that he was not paid to go to Ilbilbie to do the changeover, so instead took the changeover in Mackay. He says that he could not have refused Mr Cox’s direction – as is alleged – to conduct the changeover in Ilbilbie because Mr Cox never directly gave him that instruction.

[21] As to the allegations made by the Respondent, the Applicant stated:

•  that he did not make inappropriate comments about a female colleague;

•  he had never use drugs but agreed that he had a beer at work after he had finished for the day. He said that this was commonplace that employees would have a beer at the depots. He said Mr Tompkins and others would sit around and have a six pack. The Applicant was aware of the policy but said that “there can't be a policy for me and not for everybody else”; and

•  he had never been threatening to anyone while he worked there, though he said he may have sworn.

[22] The Applicant further asserted that he:

•  feared for his life when he went to pick up his car;

•  was not given the appropriate warning ahead of his dismissal. He submitted that he was underpaid and has been subject to an unfair dismissal; and

•  was required to pay for a flight to Brisbane at a cost of $240.00 which he sought be reimbursed by the Respondent.

[23] The Applicant made reference to a recording of a telephone conversation with Mr Tompkins. However, when asked to produce a copy of the recording, the Applicant stated that his phone had reset itself and the recording was no longer available. The Applicant stated that during the conversation he alleged that Mr Tompkins had lied in his statutory declaration filed in the Commission. The Applicant states that Mr Tompkins had denied knowing what he was talking about, and then threatened to “belt the Applicant to death”. The Applicant said that Mr Tompkins had yelled on the phone to him, but at the end of the call he changed tone and said, “it doesn’t have to be like this”.

[24] The Applicant seeks compensation of 26 weeks’ pay calculated at $23,050.04, being 38 hours per week for 26 weeks at a rate of $23.33 per hour.

[25] The Applicant filed a signed witness statement in these proceedings. His statement supported his handwritten submissions. He stated that Mr Cox had yelled and sworn at him at work and threatened to “Belt and Bash” him when he returned to the depot on 10 August 2020.

Respondent’s Submissions and Evidence

Mr Graeme Cox

[26] Mr Graeme Cox, Consultant Operations Manager of Freight and Logistics Queensland Pty Ltd trading as CNQ Freight Services, gave a witness statement in these proceedings.

[27] Mr Cox submitted that his role as Consultant Operations Manager involves the following:

•  logistical planning for local and linehaul vehicles;

•  managing drivers’ hours, work diaries and rest breaks to enable the Respondent to meet client deadlines; and

•  any other day to day tasks as required.

[28] Mr Cox submitted that on 10 August 2020, he had a telephone conversation with the Applicant which ended with the Applicant's employment being terminated due to misconduct.

[29] Mr Cox described the events leading to the Applicant’s termination as follows:

“(a) It was brought to my attention by numerous parties but more particularly Mr Noel Tompkins that inappropriate comments were made against another employee Ms Ashleigh White and Mr Lockyear's desire to have sexual relations with that employee. The comments were made to Mr Noel Tompkins who also happens to be that employee's uncle who made it clear that the comments were not appropriate, nor would they be welcome.

(b) On 17 July 2020 Mr Lockyear was at the Cairns Depot of CNQ Freight Services when he was required pursuant to his obligations in accordance with the CNQ professional driver manual to assist in the unloading of the freight he had transported from Brisbane to Cairns using CNQ equipment. The Depot Manager, Noel Tompkins asked Mr Lockyear to help with the unstrapping of the load and to remove the gates to enable the freight to be removed from the trailers with a forklift. Mr Lockyear's response was no I have beer to drink and proceeded to sit in the warehouse consuming alcohol. The drug and alcohol policy clearly states that the consumption of drugs or alcohol at the workplace will not be tolerated and can lead to termination…

(c) Mr Lockyear was habitual in his refusal to undertake his duties in accordance with the CNQ professional driver manual regularly failing to follow lawful instructions from management and would consistently ask for time off without reasonable notice. All these actions had a direct impact on the time management of CNQ and that of his fellow employees. Time management is particularly important in the logistics industry as deadlines must be met. For example, CNQ linehauls on average 30 trucks per week into far North Queensland, all have delivery times which must be managed with driver logbook hours, driver breaks and availability. If you have a driver requesting leave without notice, not wanting to do a particular route or flatly refusing to leave when requested it has a domino effect on all of the fleet and CNQ's ability to meet its obligations to its clients.

(d) On Saturday 8 August I directed Mr Lockyear to do a truck "change over" at Ilbilbie, south of Mackay, with another driver, Graeme Seager. A truck change over required Mr Lockyear to meet Mr Seager at Ilbilbie, change trailers and return to Townsville with freight from Brisbane.

On Monday 10 August I called Mr Lockyear because I had been advised by Mr Seager that Mr Lockyear had not driven to Ilbilbie for the truck "change over".

When I called Mr Lockyear to determine why he was not at Ilbilbie, Mr Lockyear said he was not going to travel to Ilbilbie because he was not paid enough to do so.

The consequence of Mr Lockyear failing to follow the direction given to him by me on 8 August 2020 was that:

•  It caused disruption to fleet planning;

•  Added pressure to other drivers including Mr Seager as it made him late for his other collections / deliveries; and

•  Could have caused deliveries to be missed or delayed causing reputational and financial harm to CNQ.”

[30] Mr Cox said that, on 10 August 2020, he raised the issues with the Applicant who responded in an aggressive, confrontational manner, stating that he had not taken Mr Cox’s pills to keep him on the straight and narrow.

[31] Mr Cox viewed this comment as “the straw that broke the camel’s back” and so he terminated the Applicant’s employment. He told the Applicant to clean out his truck and the Respondent would fly him back to Brisbane. The Applicant declined this offer and said he would make his own way back to Brisbane during which time he stated to Mr Cox that upon his return to Brisbane he would sort Mr Cox out. Mr Cox took this as a direct threat of violence.

[32] Mr Cox’s evidence was that the aggression was on the back of an underpayment issue which he raised during the same conversation and which he had never raised or sought redress before that conversation. That matter has now been investigated and resolved with an appropriate back payment being made.

[33] Mr Cox submitted that he denied that at any time he threatened the Applicant. He stated that he always treated the Applicant with respect and care and would often provide assistance to him or a friendly ear with the numerous relationship issues or other troubles that seemed to occur on a regular basis in the Applicant’s personal life.

[34] Mr Cox said that the termination on 10 August 2020 was a combination of numerous issues stemming from:

“(i) a consistent failure to follow lawful directions;

(ii) sexual harassment and inappropriate conduct in the workplace; and

(iii) disrespectful and threatening statements made to me and other staff.”

Evidence of Ms Diane Cox

[35] Ms Diane Cox, Administration Manager at Freight and Logistics Queensland Pty Ltd trading as CNQ Freight Services, provided a witness statement in these proceedings and gave evidence at the hearing.

[36] Ms Cox submitted that her role as administration manager involved her dealing with payroll, accounts, reviewing driver paperwork and other general administrative duties as required.

[37] Ms Cox’s evidence was that the Respondent employs approximately 27 staff on both a fulltime, parttime and casual basis. The Respondent’s management team consists of Andrew Cox (Director), Graeme Cox (Consultant Operations Manager), Noel Tompkins (Depot Manager) and herself. The business is mainly managed from the Brisbane depot, though Mr Tomkins manages the Cairns depot.

[38] Ms Cox submitted that the Applicant was employed with the Respondent on 28 October 2018 as a linehaul driver towing a B Double set of trailers and paid pursuant to the Road Transport (Long Distance Operations) Award 2020.

[39] Ms Cox said that the Applicant was a difficult employee who worked against lawful management directives which put extra pressure on his fellow drivers and affected the ability of the management team to achieve optimum results for the linehaul fleet.

[40] Ms Cox stated that the Applicant had a belief that he was being underpaid and errors were made relating to kilometres. She said that an investigation was undertaken, an error was identified, then rectified. Despite that, the Applicant maintains that there has been an underpayment which is not the case.

[41] Ms Cox’s evidence was that on Monday, 20 July 2020 she was in the proximity of Mr Graham Cox (her husband) when she overheard a conversation between him and the Applicant. She stated that she could only hear one side of the conversation, being the statements made by Mr Cox. She said that the parts of the conversation she heard was Mr Cox asking the Applicant to go to the truck wash and wash his truck and trailers prior to him leaving the depot as he was about to commence a period of annual leave.

[42] Ms Cox stated that she was aware that the truck given to the Applicant was new, being only some three weeks old and there is a requirement to ensure that the vehicle is maintained in a proper condition as contained in the CNQ professional driver manual. She said that during that conversation the Applicant refused the lawful direction and stated that he had too much beer to drink to finalise his duties prior to going on leave and the truck was not washed.

[43] Ms Cox’s evidence was that later that day she observed the Applicant outside the warehouse door at the Brisbane depot and proceeded to ask him why he did not wash his truck as lawfully directed to do so. His answer to her was he did not have enough time and he asked if she wanted him to go and do it right then and there.

[44] Due to the time of the day and the fact that the truck was required to go out and collect a direct load with another driver, Ms Cox told him it was too late and it would have to go out as it was. She explained to him that he was legally obliged to follow lawful directions given to him by management and his continual refusal to do so was extremely disrespectful and could lead to disciplinary action.

[45] Upon further inspection of the truck, Ms Cox said that on that day that he had not swept out his trailers as required after his load had been delivered. After the Applicant returned from annual leave, she said she had cause to speak to him about the state that the trailers were left in and showed in photographs of same. He acknowledged at that point in time that he had not undertaken his duties as was required and stated he would make sure his equipment was left clean and tidy in the future.

[46] Ms Cox said that from this point until the time of his termination, the Applicant failed to ensure that he met his obligations in accordance with the CNQ professional driver manual and that he failed to ensure that his truck and trailers were kept clean and tidy.

[47] Ms Cox said that the issues mentioned above are not the only issues that she had witnessed the Applicant. The way he conducted himself in the workplace and behaviour towards management was not acceptable. Furthermore, she was not surprised that there was an altercation with Mr Cox which ultimately led to the termination of the Applicant’s employment.

Mr Noel Tompkins

[48] Mr Tompkins, the Respondent’s Depot Manager in Cairns, provided a witness statement in these proceedings and was called to give evidence at the hearing.

[49] He stated that his role as Depot Manager involves the following:

(a) unloading and loading of linehaul vehicles;

(b) checking freight against relevant manifests;

(c) managing local Cairns drivers;

(d) ensuring linehaul drivers have sufficient hours and required rest breaks prior to leaving the depot for their Brisbane return; and

(e) general management of the day to day running of the Cairns depot.

[50] Mr Tompkins stated that he had cause to interact with the Applicant during the time he was employed with CNQ. He said that his interactions with the Applicant were always interesting, though the Applicant’s conversations could be quite inappropriate and against CNQ policies.

[51] Mr Tompkins said that there was a specific incident which he recalled whilst having a conversation with the Applicant when he was unloading is truck at the Cairns depot. He stated that Mr Lockyear commenced a conversation with him about another employee, Ashleigh White, saying to him, “wouldn't mind rooting her”. Mr Tompkins said he explained to the Applicant at the time that Ms White was his niece and that she would kill him if he tried anything on her as she is trained in self-defence. The Applicant’s reply to Mr Tompkins response was “What a way to go”. Mr Tompkins stated that he found this conversation extremely concerning because of the nature of the conversation, especially as it was about his niece. Mr Tompkins said that he explained to the Applicant at the time that it was inappropriate.

[52] Mr Tompkins submitted that he has also been involved in numerous other conversations where Mr Lockyear has spoken to him about his girlfriend and how she was a “good fuck”, that “that's all she was good for”, and other comments which were not appropriate especially in a work context.

[53] Mr Tompkins said that he also recalled another conversation with the Applicant at the Cairns Depot when he arrived on a Sunday afternoon. As part of Mr Tompkins duties as the Depot Manager, he requested the Applicant to unstrap his load ready for Monday morning however he refused the lawful direction and stated to Mr Tompkins’ that it was cutting into his drinking time. He then proceeded to sit down and drink a beer in breach of CNQ policies and despite Mr Tompkins lawful direction.

Respondent’s Submissions

[54] The Respondent submitted that on 8 August 2020, Mr Graeme Cox directed the Applicant to do a truck change over at Ilbilbie, with another driver, Mr Seager. This change over required the Applicant to meet Mr Seager at Ilbilbie, change trailers, and return to Townsville with freight from Brisbane.

[55] The Respondent submitted that on Monday, 10 August 2020, Mr Cox had called the Applicant as he had been advised the Applicant had not performed the change over as requested. The Respondent submitted that Mr Cox contacted the Applicant, who advised Mr Cox he had not travelled to Ilbilbie because he was not paid enough to do so.

[56] Relying on Mr Cox’s evidence, the Respondent submitted that because of the Applicant’s failure to follow the direction on 8 August 2020 disruption was caused to fleet planning and pressure was added to other drivers including Mr Seager as it made him late for his other collections/delivers. It also had the potential to cause deliveries to be missed or delayed causing reputational and financial harm to the Respondent.

[57] The Respondent submitted the Applicant was therefore dismissed during the conversation with Mr Cox on 10 August 2020, for these reasons and in light of the Applicant’s conduct and breaches of policies.

Valid reason

[58] The Respondent submitted that the evidence before the Commission established that the Applicant’s employment was terminated due to the Applicant engaging in misconduct and the Applicant engaged in misconduct by failing to follow Mr Cox’s lawful and reasonable direction to drive to Ilbilbie for the truck change over, which had negative consequences as outlined above, and that these constituted valid reasons for dismissal.

[59] The Respondent submitted that the Applicant has failed to provide any evidence in support of his application to demonstrate that the Respondent did not have a valid reason to terminate his employment.

[60] The Respondent cited the decision in International Ship Management P/L v Culpeper, 4 in which a Full Bench of the Australian Industrial Commission made the following comments regarding matters involving misconduct:

“[19] Before turning to the first matter, we summarise the proper approach to be taken to a finding in respect of whether the termination based on misconduct was harsh, unjust or unreasonable:

…

In determining whether the alleged conduct took place and what it involved, the Commission must make a finding on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination …

It is not the Court’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Court btu rather it is for the Court to assess whether the employer had a valid reason connected with the employee’s capacity or conduct…

In deciding whether there is a valid reason, the Commission must look at the applicant’s conduct and determine on the balance of probabilities what the conduct was and whether it took place …

In matters involving misconduct there is an onus on the employer to establish that the misconduct took place…”

[61] The Respondent submitted that on the balance of probabilities, on the evidence before the Commission:

a) the Applicant engaged in misconduct;
b) the misconduct took place as alleged by the Respondent;
c) the misconduct justified the dismissal because it was conduct that was so serious that it goes to the heart of the contract; and
d) the Applicant’s employment was terminated due to misconduct.

[62] The Respondent cited the decision in R v Darling Island Stevedoring and Lighterage Company Ltd; ex parte Halliday and Sullivan, 5 in which Justice Dixson stated:

“Orders which must be obeyed must also be reasonable:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable … what is reasonable is not ... Determined … in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled”.

[63] The Respondent submitted that the direction given by Mr Cox was lawful and reasonable, and the Applicant therefore had an obligation to follow that direction. It submitted that by failing to follow the direction, the Applicant engaged in misconduct that was “so serious that it goes to the heart of the contract”, which created a valid reason to terminate the Applicant’s employment.

Notification of the reason for dismissal

[64] The Respondent confirmed that the Applicant was dismissed during a telephone conversation with Mr Cox on 10 August 2020, for failing to follow a reasonable direction, and that the Applicant had not been provided any notification prior to this conversation.

Opportunity to respond

[65] The Respondent submitted the Applicant was not provided any opportunity to respond to the reason for his dismissal.

Support person

[66] The Respondent acknowledged that in the context of the dismissal, there was no opportunity for the Applicant to have a support person present.

Size of the employer’s enterprise and human resources specialists

[67] The Respondent submitted that it employs around 27 employees across Australia and is a relatively small employer that does not have a dedicated human resources department.

Other relevant matters

[68] While the Applicant has not made any submissions regarding the procedural flaws regarding his dismissal, the Respondent conceded there was a failure to:

a) notify the Applicant of the reason for his dismissal;
b) provide the Applicant an opportunity to respond; and
c) provide the Applicant with an opportunity to have a support person.

[69] It however submitted that, despite these flaws, these are only factors to be considered by the Commission in determining if the termination was harsh, unjust or unreasonable. 6

Reinstatement not appropriate

[70] The Respondent submitted made submissions that reinstatement would be inappropriate, noting that the Applicant has used derogatory language in communications with the Commission about Mr Cox. The Respondent submitted it has lost trust and confidence in the relationship with the Applicant.

Compensation

[71] In the event the Applicant’s dismissal is found to be harsh, unjust or unreasonable, the Respondent submitted that any award for compensation should be substantially reduced in accordance with s.392, by reason of the Applicant’s misconduct.

[72] The Respondent also submitted that any amount of compensation should be reduced in accordance with any income received by the Applicant since his dismissal, which the Applicant has not provided evidence of in his submissions to the Commission.

CONSIDERATION

Was the dismissal harsh, unjust or unreasonable?

[73] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.”

[74] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 7

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

What constitutes a valid reason?

[75] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 8 and should not be “capricious, fanciful, spiteful or prejudiced.”9 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.10

[76] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination:

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”  11

[77] In Sully v CBMG North Pty Ltd, Deputy President Asbury summarised the following:

“[11] Where the reason for the dismissal is misconduct, the Commission must be objectively satisfied that the misconduct occurred. However, as Vice President Hatcher observed in Bista v Glad Group Pty Ltd, the case law does not establish that a minor failing on the part of an employee could constitute a valid reason for dismissal simply because it was proven to have occurred. Dismissal on such a basis could not be sound, defensible or well founded. His Honour also cited the majority judgement of Moore J in Edwards v Giudice where it was held that:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee may elect to contest the termination in the arbitration on the basis that the conduct took place but it did not provide a valid reason and perhaps by relying on the other grounds in [the section].”

[12] That judgment was relied on by Vice President Hatcher as authority for the proposition that, the consideration of whether there is a valid reason for dismissal requires, where the relevant conduct upon which the dismissal is proceeded is found to have occurred, an assessment of whether the conduct was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well-founded response to the conduct.

[13] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.”  12

[78] While the three criteria above each have a unique ambit, they have the propensity to intersect in practice. Byrne v Australian Airlines elaborates on this overlap and distinguishes the three grounds stated above: 13

“It may be that the termination is harsh but not unjust or unreasonable. unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[79] The Respondent relied on the Applicant’s conduct throughout his employment, and a failure to follow a directive of Mr Cox on 8 August 2020.

[80] The Applicant has made submissions that Mr Cox was “abusive” towards him during the phone conversation about the changeover and alleged underpayment.

[81] Further, the Applicant submitted that the Respondent underpaid his entitlements by approximately $11,500.

[82] As to whether there was a valid reason for dismissal, the Applicant stated that he did not refuse Mr Cox’s direction to conduct the changeover in Ilbilbie because he was never issued with such a direction. He also denied the allegations that he made inappropriate comments about a female colleague or his personal life to colleagues or being threatening to them. In respect of the drinking at the depot, he submitted that many employees had a drink once they’d finished work despite the policy.

[83] I am persuaded by the testimony and evidence of Mr Cox that he did indeed request that a truck changeover be conducted at Ilbilbie. The Applicant denies that the conversation took place and also offers the reason for not going was that he was not “paid enough”. The Applicant did not choose to question in cross examination the Respondent’s view or put a different version of events to the Respondent. Mr Cox provided cogent evidence and the directions he gave.

[84] On balance, I find that Mr Cox did issue that direction as he was coordinating another truck in his fleet to meet at that location for a driver handover. It is unlikely that the Respondent would direct a truck of his own fleet to a location where there was no customer or transport requirement without a solid business foundation. I am satisfied the direction to attend Illbilbie was given and that it was lawful and reasonable.

[85] I am satisfied that the failure to follow a reasonable direction to conduct a truck changeover in Ilbilbie constituted a refusal of significance which led the Respondent to conclude that the Applicant should be dismissed. In a transport operation such as the Respondents business it is entirely lawful and reasonable to direct the trucking fleet and coordinate the fleet operations to ensure customers receive the service contracted for in a timely and efficient manner. The refusal by the Applicant to follow a straightforward and fundamental direction such as a changeover in a location that was identified as the most suitable point for the operations provides grounds for a valid reason for termination.

[86] Given the nature of the Respondent’s business, I am satisfied that the failure of the Applicant to follow a reasonable direction – to conduct a changeover of the truck – that is of such a fundamental nature and important to fulfilling the Respondent’s function does constitute serious misconduct and is a valid reason for dismissal.

[87] While this conduct alone is sufficient to constitute a valid reason for dismissal, I am also satisfied that the Applicant engaged in conduct of an inappropriate nature of the type described by Mr Tompkins. I found Mr Tompkins’ evidence to be more persuasive than the Applicant. The evidence of the Applicant lacked detail and presented as self-serving. Mr Tompkins presented more credibly and so his evidence was preferred. Therefore, I am also satisfied that the Applicant made comments that were sexual and inappropriate in nature and, coupled with refusal to follow a reasonable direction, would also constitute a valid reason for dismissal.

[88] As to allegations of drinking, I do not find this to be a valid reason for dismissal given the lack of specific evidence presented by the Respondent.

Was the Applicant notified of the valid reason?

[89] The Respondent has accepted that the Applicant was not notified of the reason for his dismissal. This weighs in favour of the Applicant.

Was the Applicant given an opportunity to respond to any valid reason?

[90] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 14 and in explicit15 and plain and clear terms.16

[91]  The Full Bench in Odgers provides recent commentary surrounding the application of s 387(c):

“[40] In our determination of this matter, the observations of the Full Bench in Abdel-Karim Osman v Toyota Motor Corporation Australia Ltd are apposite. The Full Bench described the obligation to provide an opportunity to respond as requiring an employer to take reasonable steps to investigate the allegations and give the employee a fair chance of answering them. It adopted the observations of Wilcox CJ in Gibson v Bosmac Pty Limited, approved by Northrop J in Selvachandran v Peteron Plastics Pty Ltd, where Wilcox CJ said:

“…Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, common sense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employers concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.”

[92] The Respondent has acknowledged that the Applicant was not provided any opportunity to respond, nor was he provided the opportunity, within that context, to have a support person.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[93] The Applicant had not been formally warned about his unsatisfactory performance. However, I accept that Mr Tompkins told the Applicant that he was not happy with the comments about his niece.

Size of the Respondent’s Enterprise (s 387(f)) and Presence of a Human Resource Specialist (s 387(g))

[94] The Respondent has submitted that it is a small employer, with no human resource specialist employees.

What other matters are relevant?

[95] In light of my finding that a valid reason was found, there is still the matter that an adequate process as per the requirements of the Act was not followed. The Applicant was not offered a reason nor provided an opportunity to respond to the termination that occurred. It was made swiftly and without recourse provided to the Applicant to plead his case. This is a serious defect in the termination process. This weights in favour of the Applicant.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[96] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 17 I have weighed each of the factors and found that the failure to follow a lawful and reasonable direction amounted to a serious misconduct. Therefore, summary dismissal is appropriate in the circumstances. Consequently, the failure of the Respondent to engage in the show cause process and the failure to provide an opportunity to respond does not make the dismissal harsh, unjust or unreasonable.

[97] In the event that the conduct could not properly be classified as serious misconduct, any award of compensation would reflect the length of time that would be required to engage in the show cause process. Given the inappropriate conduct of the Applicant, I am satisfied that any award of compensation would be appropriately reduced to nil.

[98] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR731528 >

 1   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268.

 2   Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19(3)].

 3   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender[2021] FWCFB 268, [48].

 4 [2004] AIRC 261.

 5 (1948) 60 CLR 601.

 6   The Respondent cites the decision in Anthony Farquharson v Qantas Airways Limited [2006] AIRC 488 at [41].

 7   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 8   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 9   Ibid.

 10   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 11   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]. See also Edwards v Justice Giudice [1999] FCA 1836, [7].

 12   Mr Stanley Sully v CBMG North Pty Ltd[2020] FWC 3509, [11]-[13].

 13   Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ) (Byrne).

 14   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 15   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

 16   Ibid.

 17   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].