Mr Jeffrey Cranny v Buccini Transport
[2012] FWA 9542
•9 NOVEMBER 2012
[2012] FWA 9542 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jeffrey Cranny
v
Buccini Transport
(U2012/7712)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 9 NOVEMBER 2012 |
Summary: unfair dismissal - conduct and performance - obligations falling on driver - cavalier attitude to compliance with procedures - procedural fairness deficiencies.
[1] On 20 April 2012, Mr Jeffrey Michael Cranny (“the Applicant”) lodged an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in respect of his dismissal from his employment at Buccini Transport (“the Respondent”).
[2] The Applicant had been employed as a full time truck driver for some 8 months by the Respondent before being dismissed for a combination of reasons. One of the reasons was that the Applicant had been involved in two vehicle accidents (one on 21 December 2011 and another in January 2012) for which he had received a warning. The Applicant was informed at this time (by way of the warning) his employment would be reviewed if there were any further incidents or accidents.
[3] The second reason for the dismissal was because of the Applicant’s alleged conduct in a further incident involving a major client. In this latter incident (“the April incident”), which occurred on 18 April 2012, the Applicant was accused of having been abusive to a customer and having failed to cover up his load, which was damaged by rain (and the losses for which the customer has now sought compensation from the Respondent). The Respondent contends that this incident caused it reputational damage.
[4] The hearing of this matter took place in Brisbane on 12 September 2012 and 7 November 2012. The delay between hearing dates was because a witness requested to appear by the Applicant was overseas and unavailable for cross examination until a later time.
Prior Vehicle Accidents
21 December 2011
[5] The Respondent’s concern about the first accident on 21 December 2011 principally arose from the alleged fact that the Applicant did not initially advise that he was in an accident involving a motor vehicle. When the Respondent was contacted in relation to the accident, Mr Buccini, the managing director and owner of the Respondent’s business, inquired as to the relevant circumstances. Mr Buccini’s evidence was that the Applicant denied their having been an accident and the Respondent responded to the claim in such terms. 1
[6] Subsequently, the Applicant indicated awareness of the accident in a written statement prepared for insurance purposes. In that written statement, the Applicant admitted directly that he had pulled into a side street to examine the damage to the truck, thereby acknowledging his awareness that the accident had occurred. 2
[7] The Respondent took an adverse view about the Applicant’s conduct in such circumstances.
[8] I have no reason to doubt Mr Buccini’s evidence in these regards. His recollections were sound and consistent and he was unmoved under cross examination. Generally, the Applicant’s evidence, by contrast, was indirect and elusive, and resulted in quite some frustration in the examination process. One example will suffice:
Did you say in response to the failure to cover the goods that the tarp was at Banyo?---Well the tarp was at Banyo.
So you admit saying that? Do you admit saying that?---I don't know that I said it with general knowledge that the tarp was at Banyo.
No. I'm asking you did you say the tarp was at Banyo?---I would have to say no because I don't recall saying that.
Okay. Do you deny you argued with the customer at all?---Yes I do.
So you admit that you denied arguing with the customer?---I admit that I didn't argue with the customer like I had from my offset.
Do you admit in your response to Mr Erkell you denied arguing with the customer at all?---I definitely deny arguing with the customer.
I'm going to ask you the question again. During the meeting with Mr Erkell did you say words to the effect I deny or I didn't argue with the customer?---Yes.
Okay. So you admit saying that. You admit saying that?---Well I've told you that, yes. But you seem to lose the track every now and again.
And you admit saying the tarp was in Banyo, but you don't admit any - - -?---I don't admit saying the tarp was in Banyo at all. Just take the question one at a time, simple.
If you are going to be rude and abusive, it's totally unacceptable?---Well you're asking the same question over and over again.
Because you're not answering my question, Mr Cranny, that's why?---No I didn't say the tarp was in Banyo.
Okay. I asked you the question because you failed to answer it in regard to whether you said to Mr Erkell words to the effect I didn't abuse the customer. I asked that three or four times?---I know you've asked it, and you've got the same answer every time you asked it. It's getting a bit much. Let's move on from that. I didn't argue with the customer. You have said that in Mr Buccini's statement, you have said this in Mr Erkell's statement, you've said it in your statement.
Mr Cranny, I am asking you a question. Please answer the question and stop being so rude?---The answer is no. The answer to all the questions from now on will be no. 3
January 2012
[9] In January 2012 the Applicant again failed to report an accident to the Respondent. On this occasion the Applicant admitted having entered an intersection governed by a Give Way sign and impacted a B-double. No immediate report was made to the Respondent. However, the owner of the other vehicle contacted the Respondent about the accident. The Applicant had come back to the depot and taken another delivery in the meantime, without alerting anyone to the accident.
[10] When the Applicant was questioned about the accident upon his return to the Depot he is said to have said words to the effect that there was no damage to the B-double (that he had impacted) and he was just going to tidy up the front bar of the Respondent’s truck. A claim was subsequently brought against the Respondent by the owner of the B-double.
[11] The Applicant admitted not having acted strictly in accordance “with the book”, by which I take the Applicant to have been referring to the Respondent’s Drivers’ Manual. This seems to be so because he did not consider the accident to be significant (even though he and the other driver had exchanged details at the site of the incident, or nearby).
[12] The Respondent’s Drivers’ Manual requires that all accidents causing damage to a Company vehicle or other vehicles or property must be reported immediately by phone. In neither of the incidents in December 2011 or in January 2012 did the Applicant immediately notify the Respondent of the accident. The Applicant had access to the manual and had acknowledged having read and understood its contents.
[13] The Applicant’s departure, on this occasion, from performance of his duties in accordance with his employer’s policies and procedures did not result in significant loss or damage to the employer’s reputation. But the incident again demonstrated that the Applicant did not approach his duties with close regard to his obligations as a driver, and was not frank with his employer.
[14] The Applicant’s approach is exemplified in his evidence under cross examination:
Are you supposed to immediately notify Buccini Transport if you have a motor vehicle accident out on the road? Are you supposed to immediately notify them?---Well perhaps by the book we are if we read the book and memorise it and do everything perfectly.
You have read the book because you've signed that you have?---Yes, but that doesn't say I've got to remember every ounce of it every day of the week.
Okay. So you do admit that - - -?---I filled in a claim form that afternoon before I went home.
Can you let me finish the question? You do admit that in accordance with the manual, in accordance with your duties as a driver, you are supposed to immediately notify my client of any motor vehicle accident you have. Immediate being immediate?---That's what it says in the book. That's not what I remember on the relevance of the subject. Of course if anyone was injured, if it was a serious accident, I would have called straight away because I would have needed them to organise a tow truck. When it was a minor thing, we exchanged names and addresses and further thing to the driver's manual before, the part that I did find relevant is never admit you're in the wrong. 4
[15] The Buccini Transport Drivers’ Manual reads relevantly as follows:
All accidents causing damage to a company vehicle, other vehicles or property must be reported immediately by phone.
[16] The Applicant was warned as a result of his conduct in relation to the above incidents.
The April incident
[17] On 18 April 2012 the Applicant conveyed cargo for a major client of the Respondent to a destination in Tweed Heads.
[18] The client subsequently corresponded with the Respondent alleging the following concerns:
- Only 59 of the 62 packages were delivered;
- The cargo, which was contained in cardboard boxes, was delivered in a wet condition;
- When the Applicant was questioned about the condition of the cargo he was abusive to the relevant persons - who appeared to have been Chinese - and had no answers as to why the cargo was wet or where the missing packages were.
[19] The client complained that other transport companies it contracted covered freight during rain periods. The client indicated that some 10% of the client’s product was now un-sellable.
[20] The Respondent was informed of the client’s concern that same day by way of a telephone call from Ms Rhonda Moag (ASEAN Cargo Pty Ltd). Ms Moag formally complained in writing on 24 April 2012. The evidence in these proceedings was that ASEAN was a major client for the Respondent with over $2 million worth of business in the previous financial year. Ms Moag threatened to withdraw that business from the Respondent because of the Applicants conduct and the condition in which the freight was delivered.
[21] Ms Moag’s evidence was that her client had complained to her of the condition in which the goods had arrived at the dock, the stock loss, and the abusive conduct of the Applicant to the Chinese gentlemen who accepted delivery.
[22] A number of photographs were taken (by the receivers of the stock) of the packages on the back of the truck which appear to demonstrate that there was water damage to the cardboard boxes. These were led in evidence as exhibits. There appears to me to be good reason why the photographs were taken of the condition of the load whilst it was being unloaded; the cardboard packages are very much affected by water entry.
[23] Mr Buccini claimed in his evidence that the Applicant was under an obligation through the Drivers’ Manual (referred to earlier above) and by practice common in the workplace to secure his load. The Drivers’ Manual reads relevantly in this regard as follows:
Check load and restraint before you leave and during your trip.
[24] Mr Buccini also claimed that the Applicant had been instructed to secure his load in this manner previously, and Mr Erkell gave related evidence that drivers are expected to secure their loads and that this was a matter of custom and practice. 5 Mr Buccini also outlined the ordinary induction procedures for new employees that require any new employee to work alongside an experienced driver in order to be exposed to the range of company policies and practices. Using tarpaulins to restrain loads and protect them from weather is one of the elements of the induction process.6
[25] Mr Adam Langridge, a fleet supervisor for the Respondent, was said by Mr Buccini to have telephoned the Applicant as the Applicant returned to Brisbane in light of Ms Moag’s complaint about the condition of the delivery and the Applicant’s conduct. Mr Langridge claimed, it is said, that the Applicant denied the conduct and the Applicant became very irate and deployed expletives over the course of the telephone conversation such that he was asked to calm down. Mr Langridge said the Applicant then terminated the telephone conversation at his own initiative.
[26] Mr Langridge was not available to give evidence in these proceedings as he had left the Respondent’s employment after the Applicant’s dismissal and was not able to be located, despite the Respondent’s demonstrated efforts to do so. The claims made on his behalf cannot be accorded any significant weight as a consequence.
[27] The Applicant was interviewed by Mr Craig Erkell on 20 April 2012 about the complaints arising from the 18 April 2012 delivery.
[28] The Respondent queried the Applicant in relation to the circumstances of the complaint that it had received. The evidence of the Respondent was that the Applicant stated that it wasn’t raining when he left the yard and there had been light rain on the way down from Brisbane to Tweed Heads. When asked why he did not cover the load, the Applicant is said to have replied that his tarp was elsewhere (and not retained in the vehicle’s toolkit as is custom and practice). The Applicant also argued that the tarp, even if it was available, had been too heavy for him to manoeuvre on his own (despite there having been mechanical and human assistance at the depot at the time of loading):
MR CRANNY: Well, what we're trying to get at is, you know, I mean, the tarp hadn't been on the truck for many, many months?---But you still could have requested it.
Yes, I still could have requested it if I'd known what the weather was. Other people can't forecast weather but I'm supposed to. Is that right?---But it's not just for weather, it's for securing your load.
Yes, and how do you think we would have got it up there?---Got it up on top of the - - -
On top of the load?---There's plenty of manpower there to help. There's forklifts. 7
[29] The Applicant claimed at the hearing that the vehicle was only exposed to the rain for a short period and only upon his arrival at the client’s depot in Tweed Heads and that he had not conceded at all that there had been light rain on the journey between Brisbane and Tweed Heads.
[30] The Applicant also denied having argued with the Respondent’s client:
Do you – what do you say – did you ever make derogatory comments about these gentlemen and the fact that they were Asian?---I said their second language was English. And that I had difficulty understanding them, they probably had difficulty understanding me. So how could you have an argument with someone that you really can't talk with? 8
[31] In all, the Applicant took no responsibility for the incident.
[32] As a result of that meeting the Applicant’s employment was terminated for deficiencies in the performance of his work and for misconduct. The Respondent took the view that the Applicant refused to accept any responsibility for or have any insight into his conduct and could no longer sustain its trust as an employee.
[33] The Applicant was dismissed with one week’s notice being paid in lieu (having been employed for some 8 months as a full time driver).
LEGISLATIVE PROVISIONS
[34] The relevant legislative provisions arise under s.387 of the Act which reads as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 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)
[35] Not all the claims in the Respondent’s evidence can be made out. Mr Langridge, who was said to have been the recipient of some particularly uncooperative conduct by the Applicant, was not at hand to provide evidence under oath. While Ms Moag gave evidence about the complaint of her client in relation to the Applicant’s conduct and performance of his duties, the Chinese gentlemen who were said to have been the recipient of the Applicant’s abusive conduct did not give direct evidence themselves.
[36] Be that as it may, the Applicant’s conduct manifested a pattern of disregard for policy and procedure, which reflected both on his performance and conduct as a driver.
[37] The Applicant had disregarded the appropriate response to reporting traffic accidents on two occasions within close proximity and had been warned by his employer as a consequence. Not only did these two incidents reflect poorly on the Applicant’s regard for protocol, but also reflected detrimentally on his willingness to be honest in his dealings with his employer.
[38] The third incident involved the difficulties that arose from the delivery of goods on 18 April 2012. The evidence is compelling in so far as it is evident that the cardboard boxes delivered by the Applicant were in part damaged by rain, as the exhibited photographs reveal. It seems reasonable to infer that the resultant stock losses were actual and not inflated or exaggerated. It also seems reasonable to infer from the photographs that the load was exposed to something much more sustained over the course of the journey than a passing shower at the loading dock upon parking the truck.
[39] I accept that the Applicant was instructed over the course of his employment, as Mr Buccini contended in his evidence, to cover his load for security and weather. The Applicant denied having any such obligations - which appeared somewhat unreasonable for a truck driver in charge of conveying loads, and particularly one who drew on his own experience in the industry to describe the importance managing risks in relation to covering a load:
I can’t tell where it’s going to rain, where it’s not. There’s wording around in truck places that if you do tarp it, it doesn’t rain; if you don’t tarp it, it does rain. 9
[40] At other times the Applicant seemed to be of the view he only had an obligation to cover his load if he could predict with surety there was to be rain on the journey:
MR CRANNY: Well, what we're trying to get at is, you know, I mean, the tarp hadn't been on the truck for many, many months?---But you still could have requested it.
Yes, I still could have requested it if I'd known what the weather was. Other people can't forecast weather but I'm supposed to. Is that right?---But it's not just for weather, it's for securing your load. 10
[41] The Applicant also claimed that he was not physically able to secure the load in a manner required by the driver’s manual by using the tarpaulin (an example of which was exhibited). The evidence of Mr Buccini and Mr Erkell (which was given frankly and on the basis of firm knowledge not seriously challenged upon examination) discredited the Applicant’s claims in this regard. This is largely because the Applicant’s claims were predicated on the false assumption that there were no tarpaulins and no assistance (of either human or mechanical kind) for him at the depots to secure and cover his load before departing on his journey on 18 April 2012. The evidence in particular was to the contrary, and starkly so.
[42] It is apparent to me having heard the evidence that the Applicant is in denial generally in relation to the obligation which fell upon him as a driver in charge of a load.
[43] The Applicant disregarded policy and procedures in relation to the incidents of December 2011 and January 2012, and was cavalier in his explanation for his non-compliance. He again disregarded his instructions and the reasonable practices of the business in relation to restraining and covering loads in the 18 April 2012 incident.
[44] The Applicant’s failure to comply with this instruction and the express expectations placed upon him as a driver for the Respondent resulted in financial loss and reputational damage to the Respondent (in the view of an important client). The sum of these (three) incidents (which occurred all within an eight month period of employment) evinces a pattern of conduct that brings into question, fundamentally, the trust the Respondent must have in its employee to perform his duties faithfully and in accordance with the Respondent’s intended, reasonable prescriptions.
[45] For these reasons, the Respondent had a valid reason for the Applicant’s dismissal.
(b) whether the person was notified of that reason
[46] The Applicant was informed on 20 April 2012 that he was required to attend a meeting to discuss the incident of 18 April 2012. Mr Erkell’s evidence was that he explained to the Applicant that a complaint had been received regarding the incident of 18 April 2012. He set out the various allegations. The Applicant responded, and rejected the various allegations. Mr Erkell gave evidence that he considered the Applicant’s response, noting his failure to take any responsibility for the incident and that his attitude was similar to the attitude that he displayed in the previous two traffic incidents. The Applicant was subsequently dismissed.
[47] I have no reason to doubt Mr Erkell’s evidence, which was given frankly and without serious contest. As I have cited above, the Applicant’s evidence in relation to the interview with Mr Erkell was opaque. The Applicant was notified of the reason for the dismissal in advance of the communication of the decision that he was dismissed.
[48] But while he was notified of the reason in so far as it related to the incident of 18 April 2012, the evidence before me does not demonstrate that the Applicant was notified that the decision to dismiss him was also based on the two prior incidents (the December 2011 incident and the January 2012 incident).
[49] The statutory requirement to notify the Applicant of the reasons for the dismissal is therefore not wholly discharged.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[50] Consistent with the evidence of Mr Erkell as set out above, the Applicant was given an opportunity to give his view of the events of 18 April 2012 prior to the communication of the Respondent’s decision to dismiss him from its employment.
[51] But while this was the case, I do not consider on the evidence that Mr Erkell also extended to the wider set of reasons for the dismissal (which included his reflection upon the two prior incidents - the December 2011 incident and the January 2012 incident - which expressly impacted upon the judgment he (Mr Erkell) made to dismiss the Applicant).
(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
[52] Mr Erkell gave evidence that he had offered the Applicant an opportunity to have a support person in attendance at the meeting of 20 April 2012. The Applicant declined this opportunity. I have no reason to question the evidence that is before me in this regard.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[53] The Applicant had been warned as a result of his conduct and performance of his duties as a result of prior incidents set out above.
(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
[54] No evidence was led in relation to this particular statutory consideration and I am left with no material basis to speculate about the size of the business and any implication of this to the dismissal process.
(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
[55] Again, no evidence was led in relation to this particular statutory consideration and I am left with no material basis for speculation as to Mr Erkell’s human resource experience and competency.
(h) any other matters that FWA considers relevant.
[56] There are no other matters that I consider relevant the purposes of the determinative task before me. The Applicant made no special considerations known to me in his evidence. Nor was his employment for anything but a short period, so far as duration of employment is a relevant consideration.
CONCLUSION
[57] I have not found all the claims made against the Applicant to have been made out on the evidence. Further, the Applicant was not fully informed of the scope of the considerations the Respondent was relying upon to consider the grounds for his (the Applicant’s ) dismissal, or given an opportunity revisit them.
[58] But in my view not a great deal turns on the partial deficiency in discharging these procedural fairness provisions (being s.387(b) and s.387(b) of the Act).
[59] The Applicant had been exposed to the Respondent’s views of his conduct and performance in relation to the two prior incidents and had received a warning. Further agitation of the incidents by revisiting them once again was unlikely to materially have changed the circumstances that now face me. In any event, there is very little likelihood whatsoever the Respondent’s views would have been modified in any way. I add to this that the December incident, in particular, was the subject of some investigation in the hearing and the Respondent’s evidence was not seriously challenged. Mr Buccini, in particular, was not moved from his claims whatsoever by the Applicant’s cross examination. This confirms my prior view that even if the Applicant had been afforded further opportunities to respond to the prior incidents, little of bearing would have come of this.
[60] On balance, therefore, given the findings I have reached on the available evidence, the Applicant in my view was not dismissed ultimately on terms that were harsh, unjust and unreasonable.
[61] The application under s.394 of the Act as made by the Applicant is therefore dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
M. J Cranny for the Applicant
Ms A. Smeaton of Cooper Grace Ward Lawyers for the Respondent
Hearing details:
2012.
12 September and 7 November.
Brisbane.
1 For example, transcript of proceedings, 7 November 2012 at PNS 1169-1171.
2 Transcript of proceedings, 7 November 2012 at PNS 1169-1171.
3 Transcript of proceedings, 12 September 2012 at PNS 287-299.
4 Transcript of proceedings, 12 September 2012 at PNS 132-135.
5 Transcript of proceedings, 12 September 2012 at PNS 958-962.
6 Transcript of proceedings, 7 November 2012 at PNS 1150-1156 and 1163.
7 Transcript of proceedings, 12 September 2012 at PNS 932-935 and transcript of proceedings, 7 November 2012 at PNS 1156-1160.
8 Transcript of proceedings, 12 September 2012 at PN 230.
9 Transcript of proceedings, 7 November 2012 at PN 1429.
10 Transcript of proceedings, 12 September 2012 at PNS 932-933.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR531170>
0
0
0