Mr Nigel Corrie v C.J Curran & S.L Curran

[2016] FWC 7847

[2016] FWC 7847

FAIR WORK COMMISSION

DECISION

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

Mr Nigel Corrie
v
C.J Curran & S.L Curran
(U2016/9776)

COMMISSIONER ROE MELBOURNE, 28 OCTOBER 2016

Termination of employment – small business code.

[1] Mr Corrie was employed as a long distance truck driver from July 2014 until 21 July 2016. The business operates one truck and has a contract with Toll for delivery between Adelaide and Mildura. C.J Curran & S.L Curran is a small business which is reliant upon the maintenance of its contract with Toll.

[2] Mr Curran gave evidence that Mr Corrie was told that he was required to abide by certain policies that Toll required its contractors to follow. It is not disputed that Mr Corrie received induction in respect to those policies in March 2016 which is not long before his dismissal and signed to acknowledge his understanding of the policies. Mr Corrie argues that the Toll policies are not necessarily the policies of C.J Curran & S.L Curran. However, Mr Corrie acknowledged that he was told that there was a changed situation in March 2016 when management moved from GRE to Toll and that the changed situation was that contractors had to sign up to and follow the Toll policies. I am satisfied that Mr Corrie was told that the policies were the policies he was required to follow at least from March 2016.

[3] The policies document “Toll IPEC Management System Linehaul Contractor Induction and Policy Awareness” is dated July 2012 and is six pages long. On 17 March 2016 Mr Curran and Mr Corrie travelled to Adelaide to receive training in these policies. I accept Mr Curran’s evidence that he had never seen these policies prior to March 2016 and that he was required to sign up to these policies, along with his employees, in March 2016 when management shifted from GRE to Toll.

[4] The first three pages of the policy contain 25 specific policies. The fourth page is a general policy statement about health and safety. The fifth page is a depot map showing the emergency assembly areas. The final page is an awareness competency test which was completed and signed by Mr Corrie on 17 March 2016.

[5] Relevantly one of the policies is as follows: “Unauthorised Passengers: Toll IPEC does not permit passengers, particularly children, to travel in heavy vehicles at any time. Contractors must not bring any unauthorised visitors on to any IPEC or customer site. Contractors must not operate for or on behalf of Toll IPEC whilst carrying passengers.” One of the questions in the “awareness competency test” is “are you able to travel with unauthorised passengers?” Mr Corrie has correctly answered this question “False”. Another of the policies refers to acts of misconduct which can lead to instant removal from the site and this includes “deliberate acts that endanger your safety and the safety of others.” Another policy deals with “Conditions of entry to site” and it includes the requirement that “Children under 15 are not permitted into the operational areas.”

[6] I am satisfied that given the central importance of the Toll contract to the employer, these policy requirements are policy requirements for employment with C.J Curran & S.L Curran and this was understood by Mr Corrie from March 2016. Mr Corrie accepts that he and Mr Curran jointly signed up to the policies in March and that he attended induction into the policies. Mr Corrie argues that the force of this message was undermined because he had previously been told to bend the policies to suit and because he believed that he was asked by Mr Curran to carry a passenger some time after the induction and he was not made aware at the time that Toll had authorised this instance.

[7] Mr Corrie had his children in the truck with him on the trip from Adelaide to Mildura on 12/13 July. Immediately following that trip which finished in Mildura at around 3am, Mr Corrie went on a period of two weeks of scheduled annual leave. Whilst on leave on 21 July 2016 Mr Corrie was summarily dismissed from his employment because of his breach of the policy. The employer argues that this breach was a serious breach of occupational health and safety procedures and posed a potential threat to the company’s contract with Toll and hence a threat to the viability of the business.

[8] Some hours prior to the trip from Adelaide to Mildura on 12 July 2016 there was a text message exchange between Mr Corrie and Mr Curran. Mr Curran advised Mr Corrie that: “Mike bland the spare driver will go with you tonight so show him the ropes and get him inducted in Adelaide”. Mr Corrie responded: “Looks like full truck have kids with”. Mr Curran responded one hour later at 4.44pm: “Tolls policy is no kids remember”. The trip from Adelaide to Mildura commenced at around 9.30pm to 10.30pm. 1

[9] Mr Corrie gives evidence in respect to the Toll policy in respect to passengers that:

“Approximately 2 to 3 months before dismissal Chris asked me to pick up his cousin from a service station near the IPEC depot in Adelaide and bring him back to Mildura. He didn’t tell me that he had permission from Toll.

There was a Toll policy that drivers were not allowed to have passengers in the depot or in the truck. I had to sign that.

Chris told me at the time that could change if Chris wanted somebody to go in the truck it would be okay so long as they were not there in the IPEC depot in Adelaide.

There had been a number of instances where before I signed the Toll policy that I had asked Chris if I could bring my children back from Adelaide in the truck and Chris said this was okay.

Chris later told me just before dismissal on 20 July 2016 that he had permission from Darren the IPEC warehouse manager to carry the passenger.” 2

[10] In his further witness statement in response to the evidence of Mr Curran Mr Corrie says:

“There have always been conversations with Chris Curran on matters of having people travelling in truck with no inductions. It was always a matter of what suits his circumstances on the day. Chris Curran has always accepted over the term of my employment for me to travel with my children. I had been told by him many times to bend the policies to suit and ignore the way the loads are stacked and packed because he does want to organize or have conversations with IPEC and to shut up about it.”

[11] The policy relates to “unauthorised passengers”. There is no breach of the policy if the passenger is authorised as was the case when Mr Corrie was asked to carry Mr Curran’s cousin and in the case where Mr Corrie was asked to carry the spare driver Mr Bland.

[12] Mr Corrie gave evidence that he thought it was okay to carry the children because it had been okay previously. He also argued that because of the experience with Mr Curran’s cousin he thought it was okay to carry the children so long as they were not in the Toll depot.

[13] Mr Corrie also had the children in the truck when he was unloading in the depots at Berri, Wakerie and Mildura on the trip on 12/13 July 2016. The Berri and Mildura depots are owned by Toll. The Mildura depot is also directly operated by Toll. Mr Corrie argues that the policy does not apply to these depots because he was not given a separate induction at these depots. I am satisfied that the policy clearly applies to all Toll depots and that having the children in the truck in these depots was a breach of the policy.

[14] Mr Curran also referred to an earlier incident in May 2016 where it is alleged that there was damage to goods in the Toll yard when Mr Corrie used a fork lift. Mr Corrie says that the incident was not raised with him at the time and he says that the damage was not his fault but due to poor securing of the load. In the hearing Mr Corrie accepted that the incident was raised verbally with him at the time but he was not shown the email complaint. Mr Curran says that Toll raised the issue with him at the time and told him that there was a risk that Toll may refuse to use C.J Curran & S.L Curran if Mr Corrie continued as a driver. Mr Curran says that the incident arose because Mr Corrie used a forklift contrary to instructions from the Toll supervisor. I accept Mr Curran’s evidence because it is supported by the email correspondence about the May incident in which the Toll manger said “we don’t need people like him in our business”.

[15] Mr Corrie says that there were many instances of loads not being correctly packed or secured in the Toll depots and that his complaints about these issues did not result in improvement and that Mr Curran just told him to get the job done regardless. Mr Corrie also gave evidence that Mr Curran was difficult to contact and about the poor level of communication between Mr Curran and himself which made resolution of issues difficult. I am not satisfied that the May incident can be part of a valid reason for dismissal. I am not satisfied that there was any warning or investigation or that the evidence establishes that Mr Corrie was at fault. However, I accept that the May incident contributed to Mr Curran’s anxiety about the potential loss of the contract if there were breaches of Toll policies and that this anxiety was reasonably based.

[16] Mr Curran in the proceedings conceded that prior to March 2016 he had authorised Mr Corrie to carry his children on one occasion and had requested two passengers be carried on one other occasion. He also accepts that he was aware that the children were being carried on other occasions. Mr Corrie says that the children were carried on about four occasions prior to March 2016. Mr Corrie says that at the time of the policy induction in March 2016 he raised the issue of the children with Mr Curran and that Mr Curran had said that “it shouldn’t be a problem and we’ll work something out.” Mr Curran denies this and says that he told Mr Corrie that he would have to make other arrangements for the children. I am satisfied that Mr Curran believed that his contract depended upon following the Toll policies from March 2016 onwards and for this reason I prefer Mr Curran’s evidence about the conversation. I am also not convinced that Mr Curran told Mr Corrie that policies could be bent or ignored. I accept that Mr Corrie found both Toll and Mr Curran unresponsive to his concerns about the securing and arrangements of loads but this is not the same thing as Mr Curran telling Mr Corrie to ignore or bend policies.

[17] I am not satisfied that the fact that Mr Corrie was able to carry his children in the truck prior to his induction concerning Toll policy changes the meaning of the text message “Tolls policy is no kids remember.” I am satisfied that the recent policy induction process meant that Mr Corrie understood that in the future he must comply with Toll policy in respect to unauthorised passengers, particularly children. The text message reinforced this and in my view it is reasonable for the employer to believe that this message was an instruction not to take the children as passengers.

[18] The policy clearly relates to both transport in the vehicle and to being in the depots. There is no reasonable basis for the suggestion that it might apply only to being in the depots. The fact that Mr Corrie was authorised by Mr Curran to take a passenger a few months earlier does not alter this. There was no reasonable basis for Mr Corrie to assume that if Mr Curran authorised the passenger it was not also authorised by Toll. The fact that the passenger was being collected outside the depot does not alter this. The suggestion that Mr Corrie was focused on the policy relating to entry to the site which prohibited children under 15 in operational areas and considered that Mr Curran regarded it as OK to carry children in the truck is not sustainable. I do not consider it reasonable to read Mr Curran’s response to his advice that he would be carrying the children in the truck as referring only to Toll’s policy about entry to the site and not the policy about unauthorised passengers.

[19] I am satisfied that Mr Corrie took the children in the truck despite knowing that it was contrary to policy and despite a written reminder about the policy from the employer immediately prior to the incident.

[20] The relevant section of the small business code is as follows:

“Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

[21] The meaning of this section of the code has been the subject of consideration by a Full Bench of the Commission in Ryman v Thrash Pty Ltd 3:

“[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”

[22] In the circumstances of this case I am satisfied that:

● Mr Curran dismissed Mr Corrie without notice; that is, with immediate effect. Mr Corrie was not requested or permitted to perform any further work after Mr Curran first became aware of the conduct which he alleged was serious misconduct.
● Mr Curran dismissed Mr Corrie on the ground that Mr Corrie had allegedly committed serious misconduct. It is necessary to consider if the conduct alleged falls within the scope of the definition in regulation 1.07. Mr Curran alleged that the conduct represented a serious breach of occupational health and safety procedure and a risk to the viability of the business. These alleged grounds fall within the scope of the definition of serious misconduct in regulation 1.07.

[23] It is therefore necessary to now consider whether Mr Curran genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Mr Curran gave evidence to this effect and I have no reason to doubt this. He acted consistently with what he says was his belief at the time.

[24] It remains to be determined if the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element. I am satisfied that reasonable investigation was conducted. Mr Curran ascertained the views of Toll about the conduct. Mr Curran confirmed that the alleged conduct had in fact occurred and gave Mr Corrie an opportunity to provide an explanation and responded to that explanation. The more difficult question is whether or not there were reasonable grounds for the belief that the conduct was serious misconduct that justified immediate dismissal.

[25] Mr Corrie argues that the conduct was not sufficiently serious for the employer to believe on reasonable grounds that it justified immediate dismissal. Mr Corrie argues that:

● The fact that the dismissal took place a week after the incident demonstrates that the dismissal was not immediate and that the delay is evidence that it was not viewed as serious misconduct justifying immediate dismissal.
● That the definition of serious misconduct “includes theft, fraud, violence and serious breaches of occupational health and safety procedures” and this was not a serious breach of occupational health and safety procedures. Serious misconduct is defined in Section 12 of the Act and in Regulation 1.07. What constitutes serious misconduct must be considered objectively against this definition.
● The summary dismissal was clearly a disproportionate response to a single instance of policy breach and that such a single instance could not be reasonable grounds for a belief that it was serious misconduct that justified immediate dismissal.

[26] Mr Curran gave evidence that he first became aware that Mr Corrie had breached the policy when contacted by Mr Roddy who is in charge of the Mildura Toll depot at about 5pm on 18 July 2016. Mr Roddy informed him that Mr Corrie had children in the truck last week and that this was not acceptable to Toll. The following day Mr Curran says that he contacted Mr Butler who is his contact point for Toll in Adelaide and who is in charge of the Mildura and Berri depots to discuss the issue. Mr Curran says that Mr Butler said that “if you don’t put him off then that might be it for your job”. Mr Curran says that after he concluded the telephone conversation with Mr Butler he rang Mr Corrie. He says that in that conversation:

● Mr Corrie admitted that he had the children in the truck.
● When asked why he had the children in the truck despite the text message Mr Corrie said that he didn’t want to have to drive all the way back to Adelaide the next day to collect the children and thus lose a day of his holidays.
● Mr Curran said that they would need to meet the next day to discuss the issue and that his job might be at risk.

[27] Mr Curran and Mr Corrie met the next day on 20 July 2016. Mr Curran’s sister was present as was Mr Corrie’s partner. Mr Curran says that Mr Corrie said that he thought that it would be OK to take the children given that some time earlier Mr Curran had approved him taking his cousin. Mr Curran says that he told Mr Corrie that Toll had approved the trip with his cousin. Mr Curran says that Mr Corrie was given the opportunity to respond to the allegation. At the conclusion of the discussion Mr Curran told Mr Corrie that he was dismissed.

[28] In circumstances where Mr Curran only became aware that Mr Corrie had defied his instruction not to carry the children after Mr Curran had gone on leave, the period of one week between the event and the termination is reasonable. If Mr Corrie was not going on authorised annual leave then the period of delay may well have led to a conclusion that the termination was not immediate and that the delay was evidence that there was not a belief on reasonable grounds that the conduct justified immediate dismissal. I am satisfied that Mr Curran acted within a reasonable time period after he became aware of the situation, taking into account that Mr Corrie was on annual leave and when Mr Curran first became aware that the children had been carried in the truck.

[29] The code does not confine serious misconduct to theft, fraud, violence and serious breaches of occupational health and safety procedures. I agree, consistent with the Full Bench authority quoted earlier, with the submission that regard should be had to the definition of serious misconduct in the Regulation. I also consider that the use of the expression that serious misconduct “includes theft, fraud, violence and serious breaches of occupational health and safety procedures” when read in conjunction with the regulation underlines that there is a high bar for misconduct which can reasonably form the basis for summary dismissal. There is no doubt that what occurred was a breach of occupational health and safety procedures. With three passengers in the cabin and the driver there were not enough seat belts to secure all passengers. There were only two seat belts in the truck. It is not a breach of road traffic law to carry passengers. The carrying of passengers does not of itself create a serious risk to health and safety. The policy seems more likely to be directed at issues of insurance and liability. I accept that the policy has a health and safety element, particularly in respect to children being present at the depot or passengers not being properly restrained.

[30] There is no dispute in this case that the employer believed that the conduct was sufficiently serious to justify immediate dismissal. The grounds were that:

● The contract upon which the business depended for survival was potentially at risk. There was a reasonable basis for the view that Toll may end the contract if there were further breaches of policy and Mr Corrie continued to drive for Toll work.
● The employer believed that the breach of policy was deliberate and contrary to instructions immediately prior to it occurring. That instruction was both lawful and reasonable and consistent with the employment contract.
● The breach of policy was arguably a breach of occupational health and safety procedures.

[31] Conduct will not meet the definition of serious misconduct if the conduct was not conduct that made employment during the period of notice unreasonable. 4 It will be uncommon for a single instance of breach of policy or direction to mean that employment during the period of notice would be unreasonable. This is particularly the case in circumstances where in the past the behaviour of taking children as passengers was accepted and the change in policy had only recently occurred. In this case I was satisfied that the reminder about the policy was effectively an instruction not to take the children. However, the fact that the instruction was not explicit but was implicit reduces the seriousness of the misconduct and increases the reasonableness of employment during the period of notice. The risk to the viability of the business would be removed by the termination of employment with notice. The health and safety risk was significant. I am particularly concerned about the carrying of a passenger without a seat belt. However, it is not uncommon for truck drivers to breach road rules including speeding and seat belt regulations. A single instance of breach of such road rules, although significant, would rarely be serious misconduct which made employment during the period of notice unreasonable.

[32] However, in dealing with a dismissal under the small business code I am not required to decide whether or not the conduct was sufficiently serious to justify immediate dismissal rather I am required to decide whether or not the employer held that belief on reasonable grounds. In this case there are reasonable grounds for the belief that the conduct was sufficiently serious to fall within the definition in the regulation. That is, the employer had reasonable grounds to believe that the viability of the business was at risk if the employment was not terminated immediately. Although some of the evidence for this was hearsay I was on balance satisfied by the evidence. Mr Curran gave consistent evidence that the Toll employee had told him that the contract would be at risk if Mr Corrie was not dismissed. There was also the direct evidence of the email concerning the earlier alleged incidents concerning use of the forklift and damage to goods which included an implied threat. It is not disputed that Mr Curran only became aware that Mr Corrie had taken the children in the truck despite his text message reminding Mr Corrie of the no kids policy when advised by Toll. It is reasonable to assume that Toll would not have contacted Mr Curran about this matter if they were not unhappy and expecting action to be taken about the matter. Mr Curran gave evidence that he believed that there was a risk of further incidents if there was not immediate termination. The employer also had reasonable grounds to believe that there had been a wilful defiance of a written direction and that direction was reasonable and lawful and given the risk to the business the issue was reasonably regarded as serious. In these circumstances I accept Mr Curran’s evidence that he believed that the risk of continuing employment during notice was too great and I accept that Mr Curran had reasonable grounds for his belief that the conduct made employment during the notice period unreasonable.

[33] I am therefore satisfied that there were reasonable grounds for the belief that the conduct was sufficiently serious to justify immediate dismissal.

[34] As I have concluded that the dismissal was in accordance with the small business code the unfair dismissal application must be dismissed.

COMMISSIONER

Appearances:

Mr N Corrie represented himself.

Mr C Curran appeared for the Respondent.

Hearing details:

2016

Mildura

October 26

 1   Statement of Mr Corrie at para 6.

 2   Statement of Mr Corrie at paras 16-20.

 3   [2015] FWCFB 5264.

 4   See Regulation 1.07.

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