Mr Ronald Hemi v BMD Constructions Pty Ltd

[2013] FWC 8664

[2013] FWC 8664

FAIR WORK COMMISSION

DECISION

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

Mr Ronald Hemi
v
BMD Constructions Pty Ltd
(U2013/8052)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 4 NOVEMBER 2013

Whether dismissal harsh, unjust or unreasonable - whether serious misconduct - road rage incident whilst in charge of a company vehicle.

[1] Mr Ronald Hemi (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) on 2 April 2013, seeking an unfair dismissal remedy. The Applicant had been dismissed from his employment at BMD Constructions (“the Respondent”) on 11 March 2013.

[2] His application initially gave rise to a jurisdictional objection. That objection was dealt with by decision in [2013] FWC 3593. In that decision, the application, I found the application to be jurisdictionally competent (owing to the operation of the Acts Interpretation Act 1901 in relation to s.394 (2) (a) of the Act).

[3] The application moved then to a conciliation conference before a Fair Work Commission conciliator in July 2013. The parties were unable to resolve the matter.

[4] The application thereafter returned to me for purposes of the substantive consideration of the merits. It is to that task that I now turn.

[5] I should add that I did conduct a programming conference with the parties to determine if they both wished to proceed to hearing. They did so. As a consequence, any obligation I might have in relation to s.399 of the Act is discharged as a result.

[6] The hearing of this matter has been delayed owing to issues around witness availability.

Alleged reasons for dismissal

[7] The Applicant was dismissed for reasons of serious misconduct in that the Respondent formed the view that he had been involved in a dangerous driving incident involving a member of the public while in charge of a vehicle owned by the Respondent (that being a company car, which was branded as such).

[8] The critical evidence in this regard was given by Mr Patrick Ryan Ford, who was the member of the public said to have been affected by the Applicant’s conduct.

[9] Mr Ford was the site manager for a portable and temporary building company unrelated to the Respondent’s business.

[10] On Thursday 28th February 2013, Mr Ford stated that he was driving home to Brisbane from a site near Chinchilla. He recounted that as there had been heavy rains around that time and roadwork’s on the highway, there was heavy traffic.

[11] Mr Ford claimed that at the first overtaking section on the highway he moved his vehicle to the right-hand lane to pass a few slow trucks. At that time he further recounts that he noticed a utility vehicle in his rear vision mirror that was so close to his bumper that he couldn't see that it had front headlights. He applied his brakes to stop the tailgating but the vehicle persisted in so doing for the next few kilometres, he claimed.

[12] The utility vehicle subsequently overtook Mr Ford, and Mr Ford claims that the passenger in the utility vehicle gave him “the finger” and yelled abuse at him as the vehicle passed.

[13] Once in front of Mr Ford, the driver flicked his cigarette but at the car and then started throwing stones which were, he said, “just a bit smaller than a golf ball up in the air so they would hit my car”.

[14] The Applicant thereafter telephoned (from his in-vehicle phone) the head office of BMD constructions in Brisbane and reported the licence plate of the vehicle. The licence plate read BMD 27, and was registered in Victoria. The Applicant complained of the misconduct that had occurred to the Respondent’s receptionist who advised that she would pass the details of his call on to another person.

[15] Mr Ford claims that the stone throwing went on for about 10 km. He stated that he stayed well back from the Applicant vehicle to make sure the stones did not hit the hire car that he was driving.

[16] Mr Ford claims that another passing lane appeared ahead and the Applicant didn't move to the right hand lane to pass the slower trucks. Mr Ford says he took the opportunity to move into the right-hand lane himself and to pass the Applicant’s vehicle in the slower trucks. But as soon as he attempted to pass the Applicant vehicle, he claimed that the Applicant cut him off by swerving into his path and tried to push into oncoming traffic. At this time Mr Ford says he was travelling at approximately 100 km/h. The Applicant’s conduct, it was said, caused Mr Ford to brake suddenly in moving behind the Applicant vehicle once again.

[17] Because of this second incident he again called the Respondent’s head office and this time was put through to one of the managers. That manager appears to have been Mr Michael Brian Finniss.

[18] Mr Finniss recalled being telephoned at 11:53 AM and speaking directly with Mr Ford about the tailgating, flashing of headlights and abuse that he had been exposed to on the Warrego Highway near Dalby, lost in heavy rain. Mr Finniss also recalled that Mr Ford had complained about the vehicle with the registration BMD 27. The vehicle was a vehicle owned and operated by the Respondent and is registered in Victoria. Mr Finniss undertook to investigate the incident, as it then was. Mr Finniss thereafter contacted Mr Jonathan Eames, a project manager for the Respondent, and informed him of the incident.

[19] As the vehicles approached Toowoomba, Mr Ford says that the Applicant’s vehicle slowed down to around 60 km/h. Mr Ford attempted to make a further pass of the Applicant’s vehicle by utilising the right-hand lane. But this time the Applicant lent out the window and yelled at Mr Ford to pull over, as well as yelling other abuse at him. Mr Ford went on to claim that he wound down his passenger window and informed the Applicant that he had contacted his place of business.

[20] Mr Ford says that the Applicant attempted to throw a stone (with his right arm) through the open passenger window (of Mr Ford’s vehicle) at this point. But because Mr Ford braked to get behind the Applicant vehicle, the stone struck the front window of his hire car, putting a chip in the glass in the process.

[21] Mr Ford states that thereafter took steps to separate from the Applicant’s vehicle by driving in an opposite direction. He states that he again (now for a third time) called the Respondent’s business and spoke to a project manager to convey the severity of the situation he had encountered.

[22] Mr Finniss, to his part, recalls being telephoned again by Mr Ford (following the 11:53 AM telephone conversation). He recounted that this second call was at approximately 12:02 PM on 28 February 2013. Mr Finniss recalled that Mr Ford was “very upset” and that one of the objects that the Applicant had thrown at his hire car had cracked the windscreen. Mr Finniss thereafter contacted Mr Jonathan Eames, and indicated that the incident had escalated and that a full investigation was warranted.

[23] The Applicant was not interviewed until after such time as he returned from his R&R, for which the Applicant had left site on the day of the incident, 28th February 2013.

[24] Mr Eames indicated that Mr Peter Bell, the superintendent, drove down to the site where the Applicant was working. Mr Bell was said to have spoken to the Applicant and his passenger in the vehicle, Mr Ryan Whiteside. Mr Eames said that Mr Bell outlined the nature of the complaint made by Mr Ford, which included tailgating, attempting to swerve into his vehicle, using abusive language and throwing objects from the Company vehicle at Mr Ford’s vehicle. It was said that Mr Bell received the Applicant’s version of events regarding the incident at this time.

[25] Mr Eames stated that on 5 March 2013 he spoke with Mr Ford, who was “quite upset” and stated that he (Mr Ford) was prepared to sign a statutory declaration relating to the incident.

[26] Mr Eames claimed that he initially drew up a warning letter to be given to the Applicant in relation to his conduct as it appeared to have been. However, the Respondent Human Resource Manager, Mr Steve Thomas, indicated to Mr Eames that the matter should be investigated further and that if Mr Ford was being truthful, then the Applicant behaviour was “totally unacceptable and we should consider terminating the Applicant”.

[27] The Applicant met with Mr Peter Bell and Mr Jack Hill, the two superintendents on the project, on Wednesday, 6 March 2013. The Applicant was informed the investigation was still ongoing.

[28] On Thursday, 7 March 2013 Mr Eames stated that he telephoned the Applicant and requested a statutory declaration in respect of his claims. Mr Ryan Whiteside also provided a statutory declaration. Mr Whiteside, however, did not appear as a witness for the Applicant in these proceedings.

[29] The statutory declarations were provided to Mr Thomas in his capacity as Human Resources Manager.

Applicant's contentions

[30] The statutory declarations by the Applicant and Mr Whiteside (who, again, did not appear in these proceedings and whose evidence therefore was untested) were largely similar in their content.

[31] Both the Applicant (and Mr Whiteside, ostensibly) said that they were overtaking some semitrailers when the car in front of them slammed on its brakes.

[32] The Applicant stated that the action by the driver of the other vehicle caused “us to run off road in the rain” (sic). Mr Whiteside said the incident caused the vehicle in which the Applicant was in charge to nearly [run] off the road”.

[33] Both the Applicant and Mr Whiteside said the vehicle conducted itself in the same way again, which caused the vehicle in which the Applicant was in charge to “brake hard and slide” (at least according to the Applicant). Mr Whiteside gave no evidence (to the effect it is evidence) in his declaration in this regard as to the consequences of the second breaking incident is alleged. That is, his declaration is silent on any vehicle control issue arising from the second incident about which the Applicant made express claims.

[34] When the Applicant’s vehicle subsequently passed Mr Ford’s vehicle both the Applicant and Mr Whiteside claimed that the Applicant did no more than wave his hands around in a manner that invited a question as to, “What are you doing?”

[35] That was the full extent of the incident involving Mr Ford’s vehicle as provided by the Applicant and Mr Whiteside. Once the Applicant had passed Mr Ford’s vehicle after the so-called second breaking incident, they did not see his car again, they claim.

[36] Mr Eames spoke with the Applicant and Mr Ford. On Monday, 11 March 2013 Mr Eames said that he further discussed the matter with Mr Thomas and ultimately reached the view that Mr Ford had been genuine, and accepted his version of events. The Applicant was subsequently dismissed by way of a meeting at which Mr Eames, Mr Peter Bell and Mr Jack Hill attended, along with the Applicant.

[37] The Applicant provided a further statement in these proceedings.

[38] In a statement he made the following claims in summary:

● He admitted that when he was in the overtaking lane he was a bit close to the car in front of him (Mr Ford’s vehicle) but not on purpose;
● Mr Ford’s vehicle “slammed his brakes on in the rain”;
● This caused the Applicant “to brake hard which made the car skid and swerve, nearly crashing”;
● Mr Ford’s vehicle put its brakes on hard again, but “this time I wasn't so close and didn't have to skid”;
● The vehicle in front of him was seeking to cause an incident and that when he passed that vehicle he noticed that Mr Ford “was laughing and pointing at me”; and
● The Applicant said that,” I let him know I wasn't happy. I am guilty of giving the middle finger”.
● The Applicant also claimed that he had no access to any stones or objects of any kind to throw out the window of his vehicle as Mr Ford had alleged.

[39] The Applicant claims that throughout his dealings with his employer he was not told that there was an investigation or that the matter was serious in so far as his employment was at risk. The Applicant claims that Mr Bell had indicated to him in relation to the incident that “it's nothing serious” but that he could get representation if he wished.

[40] The Applicant also maintained that Mr Jack Hill indicated that his job was not at risk and that he would just receive a warning “maybe”.

[41] The Applicant therefore argues generally that he was denied procedural fairness in relation to the dismissal. He did not appreciate that an investigation was on foot; that his employment was in jeopardy’ or that representation might be warranted in the circumstances.

Consideration

[42] The allegation of misconduct on the Applicant's part essentially turns on whether the Applicant can be found to have participated in what is euphemistically called a road rage incident whist in charge of a company vehicle.

[43] I make two observations about the Applicant’s evidence.

[44] His statement the purposes of these proceedings differs from that statutory declaration that he declared for the purposes of the Respondent’s investigation. And it did so in ways that were particularly important.

[45] In the statutory declaration as set out above, the Applicant declared that in respect of the first breaking incident, Mr Ford’s conduct had “nearly caused us to run of road in the rain” (sic). Mr Whiteside’s statutory declaration largely reflects this claim.

[46] In his written statement in these proceedings, the Applicant claimed that Mr Ford’s conduct caused him “to brake hard which made the car skid and swerve, nearly crashing”. There is no reference to nearly running off the road in the Applicant’s written statement of these proceedings.

[47] In his written statement for these proceedings the Applicant conceded that he had been travelling somewhat too close to Mr Ford’s vehicle. The Applicant so claimed for the purposes of these proceedings. But he had not made such a concession in his statutory declaration as given to his employer.

[48] In respect of the second breaking incident, the Applicant had stated in his statutory declaration that Mr Ford's conduct had caused him to “brake hard and slide”.

[49] But in his statement for these proceedings, the Applicant stated in respect of the second breaking incident that “this time I wasn't so close and didn't have to skid”.

[50] It seems to me on the evidence that having conceded that he was too close to Mr Ford’s vehicle in the first breaking instance (as he alleges), the Applicant was keen to demonstrate that he was not too close to Mr Ford’s vehicle in the second braking incident (as he alleges).

[51] If the Applicant had been too close to Mr Ford’s vehicle on two successive occasions in the rain, he may be exposed to a finding of dangerous driving or tail gating in poor driving conditions.

[52] But because the Applicant has attempted to demonstrate that on the second braking incident that he was not once again too close to Mr Ford’s vehicle (in rain conditions), he has had to change his evidence - in my view - from his statutory declaration (in which he had declared that he had stated that he had to “brake hard and slide”). The declaration was given only a few days after the incident, I should add, and is more contemporaneous than the statement prepared for these proceedings.

[53] I see no other explanation as to how the Applicant's declared evidence has subsequently been modified. The modifications in the Applicant's evidence are too substantial to merely reflect further and closer recollection and appear crafted for a particular effect. In actuality the Applicant himself did not have an explanation for the changes other than that he had become “caught up”.

[54] I have no confidence in the Applicant's evidence as being a truthful or accurate reflection of the circumstances as they were at the time. His recollections in his various statements are too inconsistent, and appear to me to be self serving.

[55] In so concluding I am conscious that I have construed the Applicant's concession in his evidence differently from the concession made by Mr Ford in his evidence (as discussed below). But the context and surrounding circumstances warrant a different construction.

[56] I prefer instead the evidence of Mr Ford.

[57] I prefer Mr Ford’s evidence not solely because there are weaknesses in the consistency of the Applicant’s evidence, but because Mr Ford’s evidence has compelling elements to it, in hand with other circumstances that arose in the evidence.

● Firstly, Mr Ford is a person unknown to the Applicant or to the Respondent prior to the incident. That is, Mr Ford has no ulterior motive or other interests that might taint his evidence.
● Mr Ford made concessions counter to his interests in the examination process, and admitted to breaking suddenly, which was a dangerous action in the conditions, to force the Applicant's vehicle to retreat.
● The Applicant held a responsible and senior position at another place of business. In all, by demeanour in the witness box he gave an indication of reasonable judgment and clarity of mind. That is, there was no evidence Mr Ford was a serial complainant or inclined to seek public attention (let alone any benefit from the Respondent).
● Mr Ford’s complaints to the Respondent were made contemporaneously with the incidents, indeed in near real time.
● Mr Ford’s evidence was consistent in respect of the narrative of events (from the point of his complaints and throughout the examination process in these proceedings).
● Mr Ford’s evidence included reference to the Applicant having flicked a cigarette but from his vehicle - the Applicant conceded he was a smoker. This is a fact that would have been unknown to Mr Ford but for the Applicant exhibiting the behaviour in the course of the incident.
● Mr Ford’s evidence was the Applicant threw an object across his body with his right hand. The Applicant gave evidence that he was right handed.
● Mr Ford gave evidence that the Applicant threw small stone from his vehicle and perhaps other hard materials (possibly hardened mud). The Applicant is a concreter by trade and worked with small stone materials and aggregate at the site from which he was travelling. It had rained at that site on prior days.

[58] Read against the Applicant's evidence, I have little difficulty accepting Mr Ford’s evidence as being the more credible.

[59] The Applicant's conduct whilst in charge of a company vehicle was serious misconduct. It was also conduct that jeopardised the safety of others, including Mr Ford, Mr Whiteside, the Applicant himself and the wider public.

[60] That misconduct as made out warrants dismissal.

[61] The Respondent had a valid reason for the dismissal.

s.387 (b) whether notified of reason for dismissal

[62] I cannot on the evidence be satisfied that the Applicant was notified of the reasons for his dismissal prior to the being dismissed. Mr Bell, Mr Hill and Mr Thomas did not give evidence themselves, and I only have Mr Finniss’ accounts of what they told him. The Applicant was aware the matter was under investigation. He was also aware of the circumstances that gave rise to the investigation (Mr Ford’s complaints).

[63] But the Applicant did not, he says, act on the basis that his employment was in jeopardy. In the end, he was dismissed as a consequence of the Respondent's findings from its investigation. At no time was the Applicant expressly informed prior to his dismissal that he was to be dismissed because of particular findings arising from the investigation.

S.387(c) Whether opportunity to respond

[64] The statute anticipates that once notified of the reason(s) for the dismissal, an employee will be afforded an opportunity to respond to the reason(s). I cannot discern in the Respondent's processes effecting the dismissal where the Applicant was provided with such an opportunity.

[65] Notwithstanding, I am satisfied that the Applicant's views about the incident were solicited, and solicited, too, in the context of his knowledge of the claims made against him. The Applicant's statutory declaration and that of Mr Whiteside attest to this.

[66] But having so said, what else could the Applicant have brought to the issue but that which he had declared, and to assert his innocence against Mr Ford’s claims, which Mr Finniss had preferred?

s.387 (d) unreasonable refusal of support person

[67] The Applicant was not unreasonably denied the role of a support person to assist him in the dismissal process. Such circumstances did not arise, given the manner of the dismissal.

s.387 (e) unsatisfactory performance

[68] The dismissal did not relate to the unsatisfactory performance of the Applicant. It is not a relevant factor to which I can have regard for the purposes of the determination at hand.

s.387 (f) size of the employer’s establishment or undertaking

[69] There is no relevant submission that the size of the Respondent’s establishment in some manner affected the procedures leading to the dismissal.

s.387 (g) availability of human resource specialists

[70] My view in regard to the availability of human resource specialists is as set out above in relation to s.387 (f) of the Act.

s.387 (h) other matters

Length of employment

[71] The Applicant had been an employee with the Respondent for some 10 years. That is a considerable period of time, which can be taken into account.

[72] The Applicant is genuinely despairing of the position he has come to be in. The dismissal has had a number of adverse affects upon him, or at least consequentially. But the Applicant’s state of mind is distinguishable from an employee who accepts responsibility for his conduct (which he has resisted) and shown remorse and contrition in that context.

[73] The Applicant did not appreciate that his employment was at risk at the time the Respondent's was investigating the incident. It is quite possible that Mr Hill informed the Applicant that he was exposed to a warning, and no more. This may well have affected the Applicant's judgment, for example, as to whether or not to seek representation to assist him to resist the claims made against him.

[74] In all, I think there were elements of the process effecting the dismissal which were harsh, noting also that I doubt the Applicant was informed expressly of the reasons for his dismissal and given an opportunity to respond in that strict order. This, of course, is not to say that the Respondent took deliberate steps to inform itself about the Applicant's perspective on the issues, and to weigh these against those of the complainant, Mr Ford.

Conclusion

[75] In the end, there is little that the Applicant could have reasonably brought to the investigation that would have affected its course in some dramatic way. Nothing he has put to me has overawed the substantive case of misconduct which informed the finding of there being a valid reason for dismissal. That is, even if the Applicant had been accorded more extensive procedural fairness, what could he have brought to the matter other than what is before me? And that material is unpersuasive, for the reason I have given.

[76] In all, the Applicant's conduct as I have found it to be was misconduct that warranted dismissal. The Applicant's dismissal was not harsh, unjust or unreasonable, as a consequence.

[77] The application as made under s.394 of the Act is dismissed, as a consequence.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr R. Hemi, for the Applicant.

Mr G. Power, of Drayton’s Workplace Consultants Pty Ltd, for the Respondent.

Hearing details:

Brisbane

2013

28 October

Printed by authority of the Commonwealth Government Printer

<Price code C, PR544122>