Mr Jason Stafford v Vision Trucks Pty Ltd T/A Summit Water Services

[2015] FWC 3276

[2015] FWC 3276

FAIR WORK COMMISSION

DECISION

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

Mr Jason Stafford
v
Vision Trucks Pty Ltd T/A Summit Water Services
(U2014/15960)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 MAY 2015

Unfair dismissal application - Departures from company policies and procedures - non-reporting of defects and mechanical damage et cetera - workplace health and safety concerns

[1] This decision concerns an application by Mr Jason Dean Stafford under s.394 of the Fair Work Act 2009 (“the Act”), the purpose of which is to seek an unfair dismissal remedy in relation to his dismissal by Vision Trucks Pty Ltd T/A Summit Water Services (“the Company”).

[2] The Company’s business undertakes the supply of bulk water delivery for commercial and domestic purposes. Its Manager/Director is Mr Gregg Wagner. Mr Stafford commenced duties with the Company on 21 February 2013 as a water truck driver. Mr Stafford was dismissed from his employment on 5 December 2014.

[3] The Company is a national system employer and there is no express or implied jurisdictional impediment to the application being heard. That is, Mr Stafford is a person who is protected from unfair dismissal for the purposes of section 382 of the Act.

[4] Mr Stafford contends that on 5 December 2014 at approximately 7 AM he attended a meeting with Mr Wagner at the Company office at Mr Wagner's request (the previous day).

[5] According to Mr Stafford, the request to attend a meeting followed an incident the previous day in which Mr Stafford was asked whether or not he had checked the radiator water level before commencing his duties that day. Mr Stafford was asked this question in the course of a telephone conversation during which he was in transit. Mr Stafford indicated at that time that he had not carried out this check and intended to pull over and conduct the inspection. As it was, Mr Stafford subsequently indicated that the water level was satisfactory. When questioned in the course of the hearing as to why he had not carried out the check of his water levels in his pre-start inspection, Mr Stafford claimed that he “totally forgot”.

[6] Mr Stafford was invited to attend a meeting the following morning (5 December 2014).

[7] At that meeting, Mr Stafford claims that Mr Wagner stated to him:

Mr Wagner: “I can’t afford for trucks to be wrecked or broken. I'm going to sack you and give you your holiday pay and one week’s pay.”

Mr Stafford: “I thought I would get two weeks pay if you sack me?

Mr Wagner: “Think yourself lucky getting one.”

[8] Mr Stafford contends that no further reasons were given to him as to the basis of the dismissal, nor had he been given any opportunity to have a support person at the meeting. Mr Stafford argues that he was not given any opportunity to reply to any of the reasons for the dismissal, and that Mr Wagner had predetermined the outcome of the meeting in any event.

[9] Mr Stafford therefore contends that Mr Wagner had no valid reason for his dismissal as it relates to his capacity or conduct and, in effect, that Mr Wagner had departed from any requirements to afford him procedural fairness.

[10] Apart from the above, I have otherwise set out Mr Stafford’s evidence as it arose in respect of Mr Wagner’s evidence below.

[11] Mr Wagner contended that Mr Stafford had a checkered history with a company.

[12] Mr Wagner contended that he had counselled the Applicant in relation to smoking in the trucks, which is counter to the Company policy. Mr Wagner argued that employers were obligated to ensure that the employees when working in closed environments were not exposed to tobacco smoke. He claimed the Company had introduced a no smoking policy in company vehicles and that Mr Stafford had not complied with this policy, despite having knowledge of his employer's expectations in this regard.

[13] On 29 October 2014, an official letter of warning was issued to Mr Stafford for non-compliance with the Company non-smoking policy. Mr Wagner also claimed that he had verbally counselled Mr Stafford about the same issue on a number of occasions. The letter of warning at this time expressly indicated that the Applicant's employment may be terminated for further breaches of company policies and procedures.

[14] In respect of this matter, Mr Stafford had claimed that Mr Wagner in actuality “didn’t care too much”. Mr Stafford also claimed however that he was informed that Mr Wagner held a dim view of him because he was obsessed about the violation of the smoking policy. In any event, Mr Stafford took the view the smoking policy was flouted by other drivers, including his supervisor (who, it appears, resigned on 29 October 2014 because he could not stop smoking and was unable to conform to his employer’s policy).

[15] On 29 October 2014, Mr Wagner stated that an official letter of warning was also issued to Mr Stafford in respect of his negligence arising from “unreported damage” of a company truck for which he was responsible. Mr Wagner claimed that “substantial damage” had been sustained to the petrol pump of the Company vehicle. The petrol pump appears to have had a damaged cover and a cracked head on the pump motor which is mounted on the rear of the Company vehicle.

[16] Mr Wagner claimed that Mr Stafford did not report this damage as per the requirement of the Company's pre-operational inspection and defect checklist. If the vehicle damage had gone unnoticed the vehicle may have been unable to be used and have resulted in substantial loss of revenue to the Company.

[17] Mr Stafford contended that he was not responsible for the damage. In the course of the hearing, Mr Stafford claimed that he had not reported the damage to the vehicle because he had failed to check the rear of the truck during his pre-start inspection. Of course, in failing to check the rear of the truck (and having failed to observe the damage to the vehicle) Mr Stafford had also failed to check the operation of his brake and rear tail lights as required in the pre-start check list.

[18] Mr Wagner claims that Mr Stafford was trained in order to carry out his duties safely and without risk to himself or others. To this end, on 2 July 2013 Mr Stafford was said to have received training from the workplace health and safety officer on maintenance and management policies and practices. On that training day, Mr Stafford was said to have been trained in and had demonstrated his capacity to meet the competency requirements in relation to the procedures and maintenance management and paperwork requirements that the Company required of its employees.

[19] Mr Wagner claimed that the plant pre-operational inspection and defect checklist is a documented instruction amounting to a roadworthiness check. Mr Stafford was obligated expressly to complete the daily check, acknowledge that the vehicle was roadworthy and has no visible signs of damage. It is only upon completion of this preoperational inspection and defect checklist that a truck is permitted to leave the yard.

[20] The Company has obligations under the National Heavy Vehicle Accreditation Scheme (NHVAS) Maintenance and Mass Management System to complete and maintain evidence of its preoperational inspection and defect checklists, and can be audited in this regard. The non-compliance with the regime may have resulted in the suspension of the Company's authority to operate under the system.

[21] Mr Wagner held that had Mr Stafford been operating a truck that had been contracted to one of its contractor clients and had an on the spot compliance audit been undertaken, the Company would have been suspended from the contract on grounds of a failure to fulfil its obligations under the workplace health and safety act.

[22] On 12 November 2014, Mr Wagner issued a further official letter of warning to Mr Stafford on the basis of his non-compliance in respect of handing in incomplete Company paperwork at the end of each shift. That warning read in part:

“On numerous occasion you have been verbally addressed regarding your non-compliance of handing in your completed coming paperwork at the end of each shift, prior to your next shift.”(sic)

“On Tuesday, 11th November 2014 you failed to hand in your driver’s log sheet and relevant plant hire dockets for processing, despite having been instructed to do so on previous occasions. It is the responsibility of the driver; and a requirement of your position to ensure your paperwork is correctly completed and handed in at the end of each shift, prior to your next shift.”

[23] The letter of warning also indicated that the Company viewed the “reoccurrence of breach of company policy as consistent disregard for our requirements for your compliance of company policy.” The letter of warning went on to indicate that Mr Stafford’s “conduct is sufficiently serious to justify further disciplinary action including employment termination.”

[24] On Monday, 17 November 2014, Mr Wagner claimed that a complaint was made to Ms Danni Watts (the administration officer) from a client in relation to the conduct of Mr Stafford in completing a domestic water delivery. Ms Watts referred the complaint to Mr Richard Anderson, who is the transport operations manager for the Company.

[25] The complaint was said to have concerned the manner in which Mr Stafford completed a water delivery task contracted by Ms Fox. It was claimed that Mr Stafford was required to hand water the front and rear lawn of Ms Fox’s residence but instead of doing so he backed the Company vehicle up to the lawn and used the rear sprayers to water the lawn. This meant that too much water was deposited on some areas of the lawn within a small amount of time and other areas of the lawn went under watered.

[26] It was necessary for Mr Anderson to attend at Ms Fox's residence and to himself spend 3.5 hours hand watering the client’s lawn as per the original contract.

[27] Ms Watt’s evidence was that the client had contacted her as to whether Mr Stafford would be returning to the job as she did not believe the watering of her lawns had been completed. Mr Stafford booked the job for one hour when it appears from the evidence that the watering task would have needed to be carried out over a much longer period to be effectively completed. In the course of the hearing Mr Stafford claimed that he had failed to book charges for the client to and from the depot and to count that time in the time he had booked for the job. Of course, if he had not conceded this point he would have attended at the client’s house for a much shorter time indeed.

[28] The Company maintained a Code of Conduct (“the Code”), which it claims "aims to foster and maintain public trust and confidence in the integrity and professionalism of the employees of" the Company. The code sets out in some reasonable detail the range of public behavioural expectations amongst other company specific requirements.

[29] Mr Stafford's conduct was said to have breached the code in so far as he had not conducted his duties in respect of Ms Fox in a professional manner.

[30] Mr Wagner also claimed that on 4 December 2014, it was reported to him that the right hand steer brake was locking on the Company vehicle for which Mr Stafford had responsibility. Mr Stafford was said to have mentioned to Mr Anderson that the brake had been locking for some two weeks but it had come good and as a result he didn't bother reporting the defect.

[31] Mr Wagner held that Mr Stafford's conduct in this regard departed from his training and the Company's expectations as to recording defects and completing pre-operational inspection and reporting mechanical defects immediately after they become evident. Mr Wagner held that Mr Stafford's continuing conduct in this regard presented a workplace health and safety risk to the Company, and represented negligence on the part of Mr Stafford.

[32] Mr Stafford held the view that the brake had seized on one occasion only and he believed that this was because of a build up of heat given the working conditions that day in question. Mr Stafford admitted he was unsure as to why the brake had locked and that he was not a diesel mechanic. Mr Stafford admitted that he did not report the brake incident (as he felt confident in his own judgment the incident was of a one-off kind).

[33] On Wednesday, 3 December 2014, Mr Stafford verbally reported to Mr Anderson that his truck engine was overheating/boiling. Notwithstanding this, on Thursday 4 December 2014 Mr Stafford failed to conduct and correctly complete his pre-operational inspection and defect checklist of the same vehicle before he commenced operations that day.

[34] The truck’s coolant and water levels were not checked despite Mr Stafford having indicated the previous day that the truck engine had been overheating/boiling.

[35] Mr Stafford contended in his evidence that he intended to check them - but that of course presumes that he had known that they needed to be checked prior to the operation of the truck but had elected to complete the check at some other point in time.

[36] Mr Wagner took the view that Mr Stafford’s continuing conduct and disregard for the Company safety checks could have resulted in a serious risk of health and safety to Mr Stafford himself and other people with whom Mr Stafford must work, or the public generally. Mr Wagner also held that Mr Stafford’s continuing conduct - in the context of counselling - posed both a reputational and commercial risk to the Company. As a result, Mr Wagner dismissed Mr Stafford from the Company's employment.

[37] Mr Wagner's evidence was supported by the evidence of Mr Anderson, who is the transport operations manager for the Company and to whom I made earlier reference.

[38] Mr Stafford also held that he had been dismissed at a difficult time of the year and that he had been economically disadvantaged by Mr Wagner's conduct.

[39] Mr Anderson's evidence under oath (and in writing in the form of a statutory declaration) was to the effect that:

● He had been present when Mr Stafford had been verbally counselled by Mr Wagner regarding his failure to hand in completed paperwork;
● There was a customer who had made comments to himself about Mr Stafford's attitude to the effect that Mr Stafford had a “bad chip on his shoulder”;
● He had been present at “many Toolbox meetings where Mr Wagner had address concerns with attitude and the reporting of mechanical issues; and
● That despite Mr Stafford's claims about Mr Wagner’s hostility towards him, he (Mr Anderson) was not of the view that Mr Wagner “had it in for” Mr Stafford and did not converse with Mr Stafford in an undisciplined or unprofessional manner.

Legislative context

[40] Section 387 of the Fair Work Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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; 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 FWA considers relevant.”

Consideration

(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)

[41] The evidence of Mr Stafford and Mr Anderson was compelling to the extent that it set out a range of company concerns with Mr Stafford's conduct over time.

[42] It is difficult to accept that Mr Wagner was uninterested in Mr Stafford smoking in the truck when a letter of warning had been generated at the time that specifically referred to that concern. Mr Stafford also mentioned in his written statement that Mr Wagner “couldn't get the smoking thing out of his head”. This suggests that Mr Stafford's claim that Mr Wagner was indifferent to the smoking issue is not authentic evidence.

[43] But be this as it may, once Mr Stafford was warned about smoking in the truck, no further incidents arose, and there does appear to have been a practice of flouting the smoking policy (at least up until 29 October 2014). I do not place a great deal of weight on Mr Stafford’s conduct in relation to smoking on Mr Wagner’s part in relation to whether there was a valid reason for the dismissal.

[44] I do, however, think that Mr Stafford’s claim that Mr Wagner was not genuine in his concerns reflected poorly on Mr Stafford’s evidence and his appreciation of the policy underpinnings to the corporate smoking requirements. Indeed, Mr Stafford claimed they were just Mr Wagner’s personal rules, and did not have any other public status.

[45] In other respects, I accept the evidence of Mr Wagner that Mr Stafford had failed to report mechanical defects or to attend to his pre-start checklists. Mr Stafford’s evidence did not wholly challenge these claims (though he did seek to condition them by wider explanation).

[46] In respect of the failure by Mr Stafford to report his brakes having locked up over a two week period, I accept Mr Stafford’s claim that the brakes on his truck only failed on one occasion before they corrected themselves. I think there is a sound basis for me to conclude so given my questioning of Mr Anderson, which suggested that Mr Stafford may have misunderstood the information he conveyed to him about the brakes having locked. Mr Anderson’s evidence was more to the effect that Mr Stafford had not reported his brakes having locked up two weeks prior, as opposed to Mr Wagner’s claim that the brakes locked up over a two week period. Mr Stafford did not explain why he did not report the mechanical failure at that time.

[47] That said, Mr Stafford admitted that he was not a diesel mechanic and had only presumed there was no mechanical defect in relation to his brakes when they locked up. Given the nature of the industry and the expectations as to safety and mechanical defect reporting, Mr Wagner had reasonable concerns as to Mr Stafford’s conduct in failing to report the incident.

[48] Mr Stafford did complain that it had been Mr Wagner who had exposed him to risk by allowing him to drive an un-roadworthy truck (which had defective brakes and leaking coolant). But this was a point on which Mr Wagner provided a vigorous refutation and set out the procedures for dealing with mechanical defects.

[49] Mr Stafford also indicated that he had failed to carry out an inspection of the truck for which he was responsible and in doing so had not observed substantial damage to its rear end. As indicated above, Mr Stafford had also failed to carry out a pre-operational inspection of his truck’s rear lighting, including his brake lights.

[50] Mr Stafford had no defence against the claims that though he had alerted his employer on 3 December 2014 that he was having engine difficulties whilst traversing the ranges at Toowoomba, he did not carry out a safety inspection the following morning. I have set out the detail of the evidence above in relation to this matter.

[51] Generally, as indicated above, Mr Stafford was dismissed only for his persistent failure to conform to company procedure in relation to a range of matters; the departure from the Company policies on 3 December 2014 was a "last straw" issue for Mr Wagner.

[52] There were three events of significance which concerned proper observational and reporting practices for which Mr Stafford had no reasonable explanation.

[53] In my view, the Company had a valid reason for the dismissal of Mr Stafford from its employment. The inspection and reporting demands in the industry are important and Mr Stafford was well aware of them.

(b) whether the person was notified of that reason

[54] Mr Stafford was not afforded procedural fairness in so far as he was not given an explanation on the day of his dismissal as to the particular reason or reasons for his dismissal. As I have indicated above, there were a range of interactions between Mr Stafford and Mr Wagner over a lengthy period of time regarding conduct issues, including a clear indication of a threat to dismiss Mr Stafford in the event of further misconduct and/or failures to comply with company procedures. On the day of his dismissal, however, Mr Stafford was not informed of the particular reasons of his dismissal at that time.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[55] Because of my finding immediately above, Mr Stafford was demonstrably unable to respond at the time to the reason or reasons for his dismissal.

(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;

[56] This is not a situation where the employer had unreasonably refused an opportunity for its employee to have a support person present to assist in the dismissal discussions. This is because Mr Stafford was not informed that the intention of the meeting was to effect a dismissal. This is a consideration for the purposes of s.387(h) of the Act, as it is a relevant matter to the dismissal though not a matter germane to this subsection.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[57] Mr Stafford had had quite a number of interactions with his employer about its concerns with the manner in which he was performing his duties.

(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;

[58] The Company is a small business and employs some 11 employees in total. But it is a company in a wider group which employees some 140 employees. No special consideration needs to be given to the requirements of the sub section in such a context. It appears from the evidence there was considerable cross-usage of staff across the various businesses.

(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

[59] The Company has no dedicated human resource management specialists. It is reasonable to assume that the precipitous manner in which Mr Stafford was dismissed arose because of the absence of advice from such expertise. Ms Watt’s was an administration officer who dealt with people management issues incidentally, it appears. Other than that there was an employee who was focused on safety and induction procedures but was not involved in disciplinary processes.

(h) any other matters that FWA considers relevant.

[60] As I have referred to above, Mr Stafford was not afforded an opportunity for a support person during the termination meeting. It appears that Mr Wagner attended the meeting with the intention of dismissing Mr Stafford and that Mr Wagner's view of Mr Stafford’s conduct and performance had passed beyond a point where Mr Stafford could have provided a reasonable defence of his actions (or otherwise). There was an element of harshness to the dismissal because of the procedural processes adopted, and perhaps also in the less than sensitive manner in which the dismissal was communicated. Mr Stafford claimed, too, that the dismissal was harsh as well because of the time of the year it occurred (which reasonably has caused him an economic penalty).

Conclusion

[61] The manner of the dismissal of Mr Stafford represented a departure from the standards of procedural fairness anticipated by the legislation. That is, Mr Stafford was dismissed abruptly and without full explanation or an opportunity to provide a defence of his actions. Mr Stafford was economically penalised as a consequence of the dismissal.

[62] But against this, I consider that there were three occasions on which Mr Stafford had not taken steps to conduct pre-operational checks and report a potentially dangerous defect.

[63] Because of this, and in the context of the industry in which he works and in the context of its regulatory requirements as explained above, I consider Mr Stafford’s dismissal not to have been harsh, unjust or unreasonable. As set out above, there were reasonable grounds for Mr Wagner to have lost confidence in Mr Stafford to apply the necessary road safety (and other policies it had promulgated).

[64] Because I have so found, Mr Stafford’s application under s.394 of the act is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr J Stafford,Applicant

Mr G Wagner, of the Respondent

Hearing details:

By telephone

2015

13 May

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