Mr Mark Eustace v K.K.R Transport Pty Ltd

[2011] FWA 8213

[2011] FWA 8213

FAIR WORK AUSTRALIA

DECISION

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

Mr Mark Eustace
v
K.K.R. Transport Pty Ltd
(U2011/9674)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 16 DECEMBER 2011

Summary: termination of employment - whether dismissal harsh, unjust or unreasonable - employee’s conduct - dangerous goods driver - dysfunctional view of employer - misconduct.

[1] This is an application under s.394 of the Fair Work Act 2009 (“the Act”) by Mr Mark Eustace, who seeks an unfair dismissal remedy in respect of his dismissal by K.K.R. Transport Pty Ltd (“the Respondent”). The Applicant was dismissed on 29 June 2011 and his application was lodged with Fair Work Australia (“FWA”) on 7 July 2011. The application is compliant with the 14 day statutory time frame (at s.394(2) of the Act) within which applications under s.394 of the Act must be lodged.

[2] There is no contest that the Respondent is a national system employer, and that the Applicant was an employee thereof. The Applicant is otherwise protected from unfair dismissal under Part 3-2 of the Act.

[3] The Applicant was employed as a fuel tanker driver for the Respondent, and had been since August 2007.

[4] On the morning of 29 June 2011, the Applicant delivered fuel to a customer on Stradbroke Island. The Applicant had delivered fuel to this customer in the same manner between 2 to 4 times a week for some three years and ten months, without incident.

[5] In the course of the delivery that morning, the Applicant inadvertently pumped a relatively large volume of diesel fuel into the customer’s premium unleaded fuel compartment, thereby contaminating the fuel therein.

[6] The Applicant contacted his supervisors promptly and proceeded to drain the contaminated fuel compartment (the volume of which was 12,000 litres). This took several hours.

[7] The process for pumping fuel from the truck to the storage compartment is particularly simple. It requires, in effect, only the connection of colour coded hoses between the appropriately identified inlet and outlet valves between the storage compartment and the truck.

[8] There is no contest in respect of these facts.

[9] The Applicant claimed that the performance of his duties that day was marred principally for reason that he was very “upset” because of a memo he had received that morning from the Respondent. That memo appeared to change some truck washing and car parking arrangements, and indicated, amongst other things, the Respondent's general approach to working on public holidays.

[10] The Applicant’s state of mind upon receiving the memo is clearly evidenced in his own witness statement, in which he claimed “we were being forced to do illegal activities at the risk of severe penalties and at the same time were being lied to and cheated by KKR”. This was a reference (perhaps amongst other things) to a claim that washing down the trucks in a particular location might infringe Council by-laws.

[11] The Applicant had sent an email to the Respondent on the morning of 29 June 2011 in which he had detailed his concerns with the memo, and sought clarification in respect of some issues. This was particularly so in relation to the understanding, which until that time had been recognised consistently by the Respondent, that he was not required to work on public holidays.

[12] Be that as it may, the Applicant, sometime later, claimed to have been distracted sufficiently by the memo for it to have affected the performance of his duties when transferring the fuel, as referred to above. Indeed, in the Applicant's evidence, the memo had come to surpass the meaning of its actual content and had become emblematic, as it were, of the wider concerns he had come to hold about the Respondent over a number of years.

[13] The Respondent indicated that it incurred, and would incur, losses of some degree as a consequence of the fuel contamination and that the incident had been unhelpful to its reputation with its client.

[14] Immediately following the incident, Mr Ken Tree, a Director for the Respondent and effectively one the Applicant's two direct reports (the other being Mr Rob Hannan, the Managing Director), requested by SMS text message that the Applicant attend a meeting upon his return to the depot. This was not an unusual method of communication, as the parties had been texting one another previously that day in respect of the circumstances of the contamination incident.

[15] Upon the request to meet being made, the Applicant telephoned Mr Tree from his truck, as he was en route back to the depot.

[16] Unknown to Mr Tree, the Applicant recorded his subsequent two telephone conversations (“the recordings of 29 June 2011”) by means of a digital recorder. The Applicant filed those recordings as evidence in these proceedings. Issues of legality under both State and Federal law readily arise over the manner in which this evidence was obtained, and these were brought to the attention of the parties by the tribunal (and particularly so the extent to which the tribunal should hear evidence that might have been unlawfully obtained).

[17] Notwithstanding this, the Respondent demonstrated a preparedness to rely on the Applicant's evidence for purposes of its case as well. Both parties were of a common view as to the admissibility of the recordings of 29 June 2011 as evidence in proceedings before this tribunal.

[18] The Applicant also led in evidence a further telephone recording of a discussion with Mr Tree that he recorded without Mr Tree’s consent or knowledge in July 2010 (“the recording of July 2010”). This discussion, which took place quite some time before the dismissal, concerned an exchange between them about a range of workplace issues.

[19] The recordings of 29 June 2011 and July 2010 also raise issues of credit in their own right. This is because the Applicant, as the knowing recorder, is able to orchestrate his manner and approach in a way that is denied to the Respondent. The recordings even indicate that the Applicant made observations to the anticipated listener. In short, the evidence can be self-serving to some degree as the Applicant and the Respondent are not in equal positions relative to the context of the discussions. This is most evident where the Applicant (in the recordings of 29 June 2011) speaks on two occasions to the anticipated listener.

[20] I have transcribed the recordings of 29 June 2011 and have invited both the Applicant and the Respondent to confirm the accuracy of the text.

[21] My transcription of the recordings of 29 June 2011 is attached as Annexure One to this decision. Both parties have agreed that the transcription is accurate. Of course, the transcript does not capture the tenor or tone of the interaction between the Applicant and Mr Tree, which is important.

[22] The transcript, in summary only, unfolds as follows.

[23] The first of the telephone conversations revealed the following:

• The Applicant commenced abruptly with the words “...You wanted to see me...what do you want?”



• The Applicant is then requested by Mr Tree, in a neutral tone, to attend a meeting at the depot upon his return;



• The Applicant then indicated that he was disinclined to attend a meeting where Mr Tree and Mr Hannan would “gang up” on him, and he was in no mood for arguments 1;



• The Applicant also said that he didn’t want an argument with Mr Tree and that he (Mr Tree) could talk to him now on the phone in lieu of a meeting;



• Mr Tree requested a face to face meeting and informed the Applicant that he had an obligation to come in and talk to them;



• The Applicant repeatedly asked if he was going to be dismissed and whether he needed a union representative;



• Mr Tree said that the Applicant could do what he liked in relation to representation;



• The Applicant claimed that Mr Tree was going to “shaft” him; and



• The Applicant requested to be told the purpose of the meeting and whether he was going to be penalised for a mistake before such time as he would consider attending the meeting.

[24] The Applicant’s discussion with his employer in this first telephone conversation is characterised by a profoundly suspicious, uncooperative and argumentative tone and manner (despite the Applicant being the knowing recorder of the discussion).

[25] Mr Tree requested that the Applicant come in and meet with the Respondent on multiple occasions over the course of the first telephone conversation, but for the reasons set out above, the Applicant withheld his cooperation.

[26] The first telephone conversation ended when Mr Tree hung up on the Applicant.

[27] The Applicant shortly thereafter initiated a second telephone conversation.

[28] In this conversation Mr Tree revealed his frustration with the Applicant by stating that the reason he had terminated the first telephone conversation was because he was “f...ing sick of arguing” with the Applicant.

[29] The Applicant then stated that if Mr Tree had an intention to “shaft” him he would “just park the truck up now”. The conversation went on as follows:

“I don’t want the arguments... I just want to be left alone to do my job. Do you want me to work with you or not?”

“Well, just bring the truck back here and I’ll unload it.”

“I take it from that you intend to shaft me.”

[30] The Applicant then persisted in demanding to know whether the Respondent was going to dismiss him. Mr Tree ultimately said: “Yeah, well, that’s right, I am going to finish you up.”

[31] The Applicant and Mr Tree then went on to have an exchange about their mutual perceptions of one another and reference was made by Mr Tree to prior exchanges in which the Applicant had expressed matters, that to him, were argumentative in nature.

[32] On 29 June 2011, the same day of the above conversations, the Applicant received an email from the Respondent indicating formally that he had been dismissed.

[33] On 30 June 2011, the Respondent issued a letter of termination. In that letter, the Respondent stated:

“Your aggressive behaviour towards Management, wilful misconduct, refusal to observe directions given and negligence this morning resulting in a fuel mix contamination is not acceptable and not in line with company policy.”

Consideration

[34] The first telephone conversation showed that the Applicant was argumentative, avoided committing to attend a face to face meeting (in respect of which there were approximately eleven requests made by his employer) and set conditions upon his attendance at a meeting.

[35] It appears to me that following a fuel contamination incident of the kind that occurred in this matter, it is reasonable for an employer to request a face-to-face meeting with the relevant employee. The Applicant appeared to accept this, but would not attend the meeting unless its content and purpose was revealed to him:

With respect, Mr Eustace, what did you think the conversation was going to be about? You've just contaminated the fuel supplies of a major client of the employer. Don't you think that the employer wants to talk about that incident?

---Absolutely, but I don't - - -

So what's your concern?---My concern was the email that I'd sent five hours previous. The main body of that email was to do with the location of the washing of the trucks within the yard.

So you're back to the memo?---That's what I was concerned about. If Kenny had told me that it was just about doing a report or talk about the incident, there wasn't a problem, that's all I had to know.

Do you accept the proposition that the employer is entitled to give an employee directions as to what they want the employee to do?---Absolutely.

So do you accept that it's reasonable for an employer to ask and direct an employee to attend a meeting?---Absolutely.

Do you accept also that an employer does not have to, chapter and verse, tell an employee what's to be discussed at a meeting?---No, I disagree.

On what basis?---On what basis? On the contents of the meeting. There's such a thing as employee rights, if I understand, and I'm entitled to representation if there's going to be disciplinary action 2.

[36] The Applicant maintained this view despite the fact that Mr Tree had conceded (in the recorded conversation) that the Applicant could bring any person he liked to the meeting.

[37] As is evident from the recordings of 29 June 2011, the Applicant's manner of conversing with his employer - Mr Tree - left a great deal to be desired, particularly following an incident in which the employer would rightly have a considerable concern.

[38] But that said, it is necessary to consider the wider circumstances in respect of the relationship between the Applicant and the Respondent.

[39] There had been a number of issues between the Applicant and the Respondent over the course of the Applicant’s employment. That is, the employment relationship exhibited some prior measure of tension. This was evident in the Applicant's evidence that he carried with him a digital recorder to ensure he protected his interests. In fact, he sought to bring into evidence the recording of July 2010 of a conversation with his managers in an effort to attack their credit. This was a conversation that was not recorded with either of the manager’s consent.

[40] There appears to have been other tensions over an agreement making issue in 2008 and various interactions about issues such as the appropriate place for parking private vehicles near the depot. I note also that the Applicant explained his lapse in judgement in re-fuelling the wrong fuel compartment at the service station on the basis that he was “very upset” by an email memo he received some hours earlier from the Respondent and to which reference has been made above.

[41] It was the Applicant’s claim that the memo came to be representative of a range of concerns that he had with the Respondent over a period of time. Hence his emotional response to the memo, the intensity of which caused him to be so distracted as to be the principal cause of the fuel contamination incident, was an actual response to a build up of issues over time. This much, of course, was not immediately evident in his e-mail to Mr Tree earlier on the morning of 29 June 2011. On its face, the email exhibited a considered and calculated tone, and indicated very little by way of the emotional turbulence that was apparently to overtake the Applicant a short while later.

[42] Of course, in this context, a reasonable question arises over the capacity of the Applicant to fulfil his duties as a dangerous goods driver when he is affected so significantly by such relatively moderate workplace stressors, such as those he had related to the memo and the surrounding circumstances. Indeed, for purposes of s.387(a) of the Act, a serious question arises over whether the Applicant's conduct posed a threat to the safety of others, given his ability to perform his duties safely was affected by his lack of emotional control and his admitted inability to identify when he was at risk of misjudgement and error. There is further discussion of this matter below.

[43] The Applicant also suggested that he was rushed the day of the fuel contamination incident.

[44] This contention does not fit well with the Applicant's experience in making the Stradbroke Island trip (which he had undertaken several hundreds of times) and his frequent reference to his own level of professionalism as a dangerous goods driver. Indeed, the Applicant indicated that he had only missed the ferry back to the mainland on a handful of occasions over the period in which he had made deliveries to the island 3.

[45] That all said, it is apparent from the recordings of 29 June 2011, that the Applicant was given a reasonable and lawful direction by his employer to attend a meeting.

[46] It is indeed a matter of fine judgment as to whether the Applicant's conduct, in adopting an uncooperative and argumentative posture in response to his employer’s reasonable and lawful direction to attend a meeting, is sufficient in its own right to warrant dismissal. The context and significance of the direction are important in fully characterising the nature of the conduct under consideration.

[47] The Applicant's persistent requests for disclosure of the purpose of the meeting, and the argumentative manner in which he escalated a situation that otherwise might have been amenable to an alternative outcome or amended procedure, are matters of some gravity. While no employee is required to be servile, the Applicant, in the circumstances in which he found himself that day, would be expected ordinarily to conduct himself in a civil and cooperative manner in respect of a reasonable request made by his employer following an incident of the kind described above. From the very outset of the conversations of 29 June 2011, the Applicant clearly did not conduct himself in such a way.

[48] Equally so, the Respondent bears some measure of responsibility for not taking some common sense steps to diffuse the situation that developed. It was always open to Mr Tree to have indicated that the meeting would be for disciplinary purposes and that the Applicant should take some steps to prepare for that process. Mr Tree could also have diffused the situation by requiring the Applicant to attend a meeting the following day, when it became apparent that the Applicant was acting impulsively.

[49] Further, Mr Tree might have warned the Applicant that if he persisted in being argumentative in the face of a reasonable direction to attend a meeting, that in itself might lead to disciplinary action, including dismissal. The persistence of the Applicant’s conduct following such a warning would have placed the Applicant’s behaviour in a more serious context still.

[50] But none of these interventions arose and the exchanges between the parties escalated.

[51] In such situations, the facts must be constructed objectively.

[52] So construed, the Applicant's conduct placed the employment relationship under very considerable stress. But despite this, I do not conclude that his conduct was so repugnant or abusive so as to not give the Respondent cause to intervene in the process responsibly, and perhaps either warn the Applicant, or else stand the proposed meeting down to the following day.

[53] I reach this conclusion because the Applicant did not refuse outright to attend a meeting with his employer (though the effect of the Applicant's conduct might make that an arguable point). Further, the Applicant did not personally abuse Mr Tree or otherwise direct profanities at him. Nor did the Applicant conduct himself in the context of an express warning from Mr Tree.

[54] The Applicant was, as I said above, particularly argumentative and uncooperative, but not personally abusive. Had the context of the conversations of 29 June 2011 exhibited an abusive tone as opposed to an argumentative and uncooperative tone, the outcome might have been very much different. I note, in any event, that the evidence in these proceedings demonstrates that the parties did not shrink from incorporating expressive crudities in their everyday exchanges.

[55] Further, the fuel contamination incident was not unimportant, but in its own right it does not have the standing of a dismissible event. This remains the case when taken together with the Applicant's conduct during the telephone conversations of 29 June 2011. The incident was important and warranted disciplinary action, but it was not so important (in the context of the Respondent’s otherwise high regard for the Applicant’s driving skills) as to contribute to a decision (along with the Applicant's conduct) to terminate the Applicant's employment.

[56] In my view, considering the totality of the evidence before me, as arguable as the alternative might be, the Respondent did not have a valid reason for dismissing the Applicant (for purposes of s.387(a) of the Act).

[57] Having so concluded, I now turn to the further requirements of s.387 of the Act.

[58] In respect of the requirements of s.387(b) of the Act, as indicated above, the Applicant was informed of his dismissal in a telephone conversation on 29 June 2011. Notice of the dismissal was not effected in advance as anticipated by s.387(b) of the Act, but the circumstances set out above explain why that was the case.

[59] For purposes of s.387(c) of the Act, in the circumstances I have set out above, the Applicant was not provided an opportunity to respond to the reasons for his dismissal. If the matter had progressed through to a face-to-face meeting with the Respondent, as Mr Tree had sought, such an opportunity may have presented itself. But that was not to be the case. Mr Tree succumbed to the Applicant's persistent requests to provide a prior indication of his intention, and in doing so, denied the Applicant an opportunity to respond to the reasons for the dismissal.

[60] No issues arise for purposes of s.387(d) of the Act. The Applicant was not denied an opportunity to be assisted in a meeting by a support person. The Applicant was given an opportunity to have such a support person attend the meeting, but no meeting eventuated for the reasons explained above.

[61] For purposes of s.387(e) of the Act, I note that the Respondent indicated to the Applicant in the letter of termination that one of the reasons for the decision taken was the apparent negligence demonstrated by the Applicant in the fuel contamination incident. I have taken this to be a conduct related matter rather than a performance related matter. There appears to have been nominal concern with the Applicant's performance of his duties bar the particular fuel contamination incident. From the Applicant's perspective, the fuel contamination issue arose from his reaction to a workplace issue not from some inherent performance related concern.

[62] In any event, should it be possible to construe the fuel contamination incident as being related to performance, it must be concluded that the Applicant received no warning in relation to his actions in bringing about the fuel contamination incident (or "shandy" as it is called in the industry) on 29 June 2011. Again, the absence of any warning must be construed in the particular circumstances of the two telephone conversations of 29 June 2011.

[63] No issues arise for purposes of s.387(f) and s.387(g) of the Act. The Respondent was not a small business employer, but equally, whilst it possessed no dedicated HR resources, the decision to dismiss the Applicant did not turn on this circumstance in any important way.

[64] For purposes of s.387(h) of the Act, I must also take into account any other relevant matter.

[65] There are no other matters that are relevant that I need to consider.

[66] There were various references over the course of the hearing regarding prior interactions between the Applicant and the Respondent. References were made to the Applicant's training and his obligations to report incidents to his supervisors, and other issues of the relative credit between the parties were ventilated but none of these were critical to the findings which I must make for the purposes of s.387 of the Act.

[67] In the very particular circumstances of this matter, I find that the Applicant was harshly, unjustly and unreasonably dismissed from his employment.

Remedy

[68] Section 390 of the Act concerns the circumstances in which FWA may order a person's reinstatement or payment of compensation. Section 391 of the Act concerns the remedy available in relation to reinstatement. Under this section, FWA may appoint the person who has been dismissed to the position in which the person was employed immediately before the dismissal, or appoint the person to another position on terms and conditions no less favourable than those which the person received immediately before the dismissal. However FWA can only reinstate a person in accordance with s.390 of the Act when it considers that it is appropriate to reinstate the person.

[69] For reasons that I shall detail below, in the circumstances of this case it is demonstrably inappropriate that I make an order to reappoint the Applicant to the same position or appoint the Applicant to another position with the Respondent (should such a position be in existence).

[70] Accordingly s.392(1) states that an employer may be required by an order of FWA to pay compensation to an employee in lieu of reinstatement. FWA may only do so however, when it considers that an order for the payment of compensation is appropriate in all the circumstances of the case. There are no circumstances that distinguish this case such that an order for compensation should not be made. I do not see that I should exercise the discretion available to me under s.392(1) of the Act by referring to considerations arising subsequently (for example under s.392(3) of the Act).

[71] In making an order for compensation FWA must have regard to s.392(2) of the Act, which sets out the criteria for deciding the amounts to be ordered as compensation. Section 392(2)(a) requires me to consider the effect of the order I might make on the viability of the employer's enterprise. There is no evidence before me that any order that I might make may possibly affect the Respondent’s enterprise in this case.

[72] I have considered s.392(2)(b) of the Act, which relates to the length of the Applicant’s service with the Respondent. In this case the period of service was some 3 years and 10 months, which is not an insignificant period of service.

[73] Section 392(2)(c) of the Act requires me to determine the remuneration that the Applicant would have received, or would have been likely to receive, if he had not been dismissed. There is an element of speculation involved in such a judgement. Nonetheless, such a judgement must be informed by the circumstances of the case.

[74] I do not consider that the Applicant would have enjoyed a very long period of further employment at all with the Respondent following the incident of 29 June 2011. There are various interlocking circumstances that arose from the evidence led in these proceedings that have encouraged me to form this view.

[75] The Applicant exhibited a particularly intense negative view of the Respondent, so much so that it is very unlikely that the employment relationship would have been sustainable beyond a very short period of time.

[76] Over the course of the proceedings, the Applicant variously described Mr Tree as having “lied many times”, being “vindictive”, being a “shady character” and involved in “illegal activities”.

[77] The Applicant even described Mr Tree as “dishonest” and “sleazy”, and indicated that Mr Hannan was developing Mr Tree’s characteristics:

A moment before, though, you said that you had a respect for both Rob Hannan and Ken Tree, so isn't that inconsistent with you now saying you trusted them and you respected them, but you kept a digital recorder handy at all times?---No, I disagree. Ken Tree is the sort of bloke who on one hand you can like him a hell of a lot. He's a really nice fellow, and then he'll turn around and flip on you, and he'll do something really dishonest and sleazy. Rob Hannan on the other hand I found to be a good bloke to begin with, but he's slowly becoming more and more like Ken Tree. Just to go further in regards to that, is that in this industry you get a lot of people making accusations and all the rest of it, and so having a digital recorder on hand is a protection against false accusations 4.

[78] The Applicant's evidence, as cited above, also suggests that he had developed an unusually intense suspicion about the Respondent’s motives and modus operandi, which resulted in him (the Applicant) carrying a digital recorder to protect himself. Indeed, in its overall context, the Applicant's relationship with Mr Tree, and to a lesser degree with Mr Hannan, may be described as dysfunctional.

[79] I add to this that the manner in which the Applicant conversed with Mr Tree on 29 June 2011 was unusual in its degree of uncooperativeness and underlying suspicion. This more recent development, layered on top of the previous history of suspicion, goes against any finding that the Applicant would have enjoyed anything other than a short period of further employment with the Respondent.

[80] The Applicant also exhibited what would appear to be a high degree of anxiety in relation to a number of workplace issues in which he had an interest. These matters concerned issues such as whether or not he would be required to perform any weekend or public holiday work, where he was to park his car, wash his truck and so forth. It appeared from the evidence that some of these matters, such as the requirement to work public holidays, could have been quickly resolved as the comments had been in respect of the general workforce and did not mean to displace the particular arrangement (but for one occasion) observed unswervingly over time with the Applicant.

[81] But the Applicant's case was that the various issues which he had interacted with the Respondent about had brought about such a high level of stress that he was distracted from his core duties as a dangerous goods driver (and contributed to the fuel contamination incident which followed). It appears to me that a person who has such strong emotional reactions to stressors of the kind described above is unlikely to enjoy a particularly long period of employment at all with the relevant employer in that context.

[82] Indeed, such was the scale of the Applicant's anxieties, he appears to have struggled with his ability to identify when he himself was fit to drive a dangerous goods vehicle:

How do you perform those duties competently if you are so disposed to distraction by such issues as workplace tensions of that order, about a memo? In the scheme of things, you know, they're relatively - they might be - some importance to you of course and there's some history to these matters, and as stressors come and go they might be sort of moderate stressors maybe at best, but how do you conduct those duties responsibly if you're so disposed to stressors of that kind that cause you to not be able to perform your duties?---Well, I don't consider that I'm supposed to be upset by just a simple memo but the build up of events to reading that memo is what upset me and if I thought I was too upset to drive the fuel tanker competently I would park it up. I have parked the truck up previously - - -

You didn't feel like you should park it up that day?---At that time, no. But by the time I had gotten down to Cleveland and another phone call had taken place with Gary Kellett - and at that time Gary Kellett had made threats to go to Queensland Transport and I felt as though the company was unravelling, the employees were unhappy, Ken had - - -

[...]

But you didn't feel as though you were so stressed that you should park the vehicle up?---No, well, how do you know at the time? It was a build up and just things were playing on my mind until I had made a mistake. I don't realise - I didn't realise that - you know, to me if I thought I wasn't in a fit mental state that would be negligence to keep driving but I didn't realise until I had made the mistake that I was too upset to do my job properly. I made that error and I deeply regret that, I wish I had just stopped and thought about things 5. [My emphasis]

[83] The Applicant's emotional reaction to a number of workplace issues had led him to a point at which he was “too upset to do [his] job properly”. On the basis of this self-assessment, I could not conclude (if only on this basis alone) that the Applicant could remain in his current position very long at all.

[84] Following the memo of 29 June 2011, the Applicant also formed the view that the company he worked for was “unravelling”, such was his emotionally escalated perspective on the workplace issues before him (and to which I have referred above). Such a judgment on the employer’s business does not lend support to a conclusion that the Applicant would have remained an employee for anything other than a short period.

[85] The Applicant had indicated in the proceedings that he had in the immediate past decided for whatever reason to remain in the Respondent's employment when he had another option. But in very recent times matters appeared to have come to a head (or a “build up” as the Applicant put it). I therefore consider that the Applicant, particularly given his unusual and intensely negative disposition towards his employer, his recent conduct, and the depth of his anxieties regarding various workplace issues he had accumulated over a lengthy period of time, was likely to remain in his employment at the very most for a further 2 to 3 weeks. In my judgement, I will fix that period as being a further three weeks only.

[86] For the purposes of s.392(2)(d) and (e) of the Act, I note that the Applicant was dismissed on Wednesday, 29 June 2011 but by the following Monday he had managed to obtain casual work with another trucking company. The work was as a casual employee and paid at $30 per hour for a 38 hour week (which was guaranteed to him by his new employer whether or not he worked those hours).

[87] Though there was some argument around whether the Applicant ought to have more vigorously sought to mitigate his losses following the dismissal, I have put those arguments aside. It appears to me that the efforts made by the Applicant were sufficiently timely following the date of his dismissal and that the level of remuneration he achieved in mitigation was reasonable in the circumstances (which include that he did not wish to relocate given his familial situation). Though the work the Applicant obtained was casual work, it appears on the evidence to have been regular and systematic over the period, and extended on some quite generous terms by the new employer.

[88] I have not deducted any contingencies for the Applicant's period of prospective employment, as the period of time is quite short.

[89] The Applicant's evidence was that he was paid $30.00 per hour for 38 hours per week by his new employer. This amounts to the sum of $1140.00 per week, or $3420.00 for a three week period. The Applicant, however, did not work the first three days following his dismissal. Therefore the Applicant actually earned an amount equal to his hourly rate of pay multiplied by 7.6 hours (as worked each day) multiplied by 12 (being the number of days he worked with the new employer in the three weeks following the dismissal).

[90] Section 392(2)(f) of the Act does not apply in the circumstances of this case, as will be evident below.

[91] Section 392(2)(g) of the Act is not relevant in the circumstances of this matter.

[92] Section 392(3) of the Act states that if FWA is satisfied that the misconduct of a person contributed to the employer's decision to dismiss the person, FWA must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[93] I have discussed the character of the Applicant's uncooperative and argumentative nature in those telephone conversations above. I consider that this conduct was material to the decision to bring about his dismissal. In my view, having heard this matter, it is appropriate in the circumstances that I reduce the amount I would otherwise order the Respondent to pay the Applicant by one week's salary because of the contributory role the Applicant's conduct (which I have set out above) played in his own dismissal.

[94] For purposes of s.392(5) and (6) of the Act I conclude as follows.

[95] As noted above, the Applicant did not obtain work until three working days after he was dismissed. The first three days for which the Applicant was unemployed are owed to him and are to be paid at his hourly rate with the Respondent. Given that the Applicant worked 12 hour shifts, the applicant would have worked 36 hours during that period. Earnings for that period would have amounted to $982.80 ($27.30 multiplied by 36 (hours)).

[96] The Applicant’s earnings with his new employer over the residual seven working days (7.6 hours per day) were paid at $30.00 per hour. This amounts to $1,596.00.

[97] Had the Applicant worked the seven residual days with the Respondent he would have earned $2293.20 (which is the sum of seven 12 hour shifts worked at $27.30 per hour).

[98] The gap between the Applicant’s actual earnings and the earnings he would have received with the Respondent in the prospective period of employment amount to $697.20.

[99] The amount owed to the Applicant is the sum of $982.80 and $697.20, which equals $1680.00.

[100] I therefore order that the respondent pay to the Applicant the sum of $1680.00 gross, subject to ordinary taxation.

[101] This amount must be paid within 14 working days of the date of the order, which has been issued simultaneously with this decision, directly to the Applicant's usual bank account, or otherwise as indicated by the Applicant through the Applicant’s representative.

[102] No issue arises for purposes of s.393 of the Act such that I should consider requiring the Respondent to pay the amount in instalments.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr. Tayler for the Applicant

Mr. Hughes for the Respondent

Hearing details:

2011.
16, 17 and 18 November.
Brisbane.

Final written submissions:

2011.
7 December.

ANNEXURE 1

First telephone conversation

Mr Eustace: Yeah right, so umm yeah with wanting to talk to me ... what do you want? You got me now so...

Mr Tree: I wanted, I wanted to talk to you when you get back in.

E: Yeah, well, you know, look I really don’t want to have an argument with you blokes, you know. Like every time I seem to talk to the both of youse, youse gang up on me you know so...

T: Well, you still got to come in and see us.

E: Hey?

T: I still want you come in and see us.

E: Well, I am talking to you now so and I’m giving you an opportunity, you know like I’m, I’m not in the mood...

T:... I don’t want,I don’t want to talk to you over the phone Mark ... I want to talk to you face-to-face over it.

E: Yeah, so what, you gunna to sack me?

T: Mark, just come in and talk to us.

E: Well I want to know, do I need a union representative there, you gunna to sack me? Or you know?

T: Just come in and talk to us.

E: Well I need to know, Ken.

T: No you don’t.

E: Yes, I do.

T: No you don’t...

E: ... I do

T: You want to do what I ask or not, or do you want to argue again?

E: No, I don’t want to argue, this is the whole point.

T: Right, well come in and see us when you come in.

E: Well, do I need a representative from the union is what I’m asking.

T: You can do what you, you can do what you like.

E: Well, well it sounds like...

T: ...Just come in and see us...

E: ... Well it sounds like you want to try and shaft me.

T: Right, OK.

E: Is that the case?

T: Just come in and see us mate...

E: ... No, no - just tell me straight up Ken, is that the case...

T: ...Just come in and see us when you when you get here. I don’t want to talk to you over the phone, I’m fucking sick of arguing with you, just come in and see us.

E: I don’t want to argue this is the whole point Ken...

T: ... Yep ...

E: Right, so you know how seriously I take my work how so you think I feel at the moment? You know? And have a guess what I was thinking about when I fucked up? You know? Like...

T: ... I don’t know what you are thinking.

E: Oh well... Yeah.

T: Just come and see us when you get here.

E: Well, hey, I need to know...

T: ... No you don’t...

E: I need to know what it’s about and what you intend to do.

T: Well, find out when you get here.

E: I won’t, I won’t be coming to talk to youse unless you tell me what it is about because if it’s going to be a confrontation, I want someone to represent me because I don’t want to argue with you.

T: OK, no worries (Mr Tree hangs up).

E: So, what’s the answer? Is it a confrontation? Are you trying to penalise me for a mistake? And Ken just hung up... (to himself).

Second telephone conversation

Mr Tree: Yeah Mark

Mr Eustace: Yeah mate, you hung up on me.

T: Yep, I’m fucking sick of arguing with you.

E: I don’t want to argue Ken, this is the whole point. Can we just put the fucking boss employee thing aside and talk how we used to talk? You know? Man, this is why I’ve stayed out of your face like, you know. It’s just fucking bullshit. So I just want to know, Ken you know, like you got intentions of fucking shafting me, fine I’ll just fucking park the truck up now.

T: You wanna what?

E: I’ll just park the truck up now if you want to fucking shaft me, you know. I don’t want to walk, like I’m sick of youse two ganging up on me and I’m sick of all these bullshit accusations, all that shit Rob that said to me in that email, that’s fucking bullshit. Whoever’s been...

T: ... Like that letter, that email you sent this morning?

E: What about the email that I sent this morning?

T: Yeah

E: I was just outlaying some stuff and that’s what I was thinking about this morning, you know. And I’ve already had drivers whinging and bitching to me about that, like it’s just one thing after another. But it’s, I don’t want the arguments mate, I just want to be left alone, do my job. Do you want me to work with you or not?

T: Well bring the truck back here then, I’ll go and I’ll take it up and unload it.

E: Well I’m not saying I won’t but I wanna know. But I’m taking from that that you intend to umm shaft me.

T: You can take it any way you like Mark.

E: No, no well I’m asking you Ken, what what’s the go? What are you, what are you intending on doing here?

(pause)

T: Yeah well, that’s right, I am gunna to finish you up.

E: Fff... huh... huh. Alright. Oh well. Yep, you know, I didn’t want it to go to that, but I will be seeing you in court.

T: Yep, no worries mate.

E: Yeah. Yeah. You do every illegal thing under the sun and I bust my arse for you and this is how you fucking treat me.

T: Yeah, well, that’s fine. I’m sick of all the crap and that that goes on.

E: All the crap!

T: Yeah. All the innuendos and letters and fucking shit you don’t want to...

E: ... Hey. Hey...

T: ...Hang on. Hang on...

E: Nah. Nah.

T: ...You haven’t performed anything we ask, anything we say you can’t even park your fucking car where Homeward asked us for you to park...

E: ...No one ever asked me to park anywhere different.

T: Well what’s in that letter?

E: That’s the first time...

T: ... Yeah...

E: And after, after those cars got broken into and damaged I don’t want to put it anywhere else. I’ll put it out on the street.

T: Well that’s (indistinct)...

E: ...Look, you haven’t got any valid reason to terminate my employment. I’ve worked my arse off no matter what youse have done to me.

T: Yep, well, like you said mate, see us in court then.

E: Yeah, well, yeah, alright. I’m, I’m really sorry you’ve, you’ve taken this line Ken.

T: Yep, no worries mate.

E: Yeah, alright. (Alright, I just got sacked - to himself)

SENIOR DEPUTY PRESIDENT

 1   Transcript of proceedings dated 16 November 2011 at PN 372.

 2   Ibid at PNS 392 - 398.

 3   Ibid at PN 859.

 4   Ibid at PN 293.

 5   Transcript of proceedings dated 17 November at PNS 1216 - 1221.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR517254>