Mr Victor Morrison v Villacare Pty Ltd T/A Bunker Freight Lines

[2013] FWC 4737

[2013] FWC 4737

FAIR WORK COMMISSION

DECISION

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

Mr Victor Morrison
v
Villacare Pty Ltd T/A Bunker Freight Lines
(U2013/7421)

COMMISSIONER CARGILL SYDNEY, 25 JULY 2013

Application for relief from unfair dismissal.

[1] This decision arises from an application by Mr V Morrison (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Villacare Pty Ltd T/A Bunker Freight Lines (the respondent or the company). The applicant’s dismissal occurred on 21 February 2013 and his application for relief was lodged on 11 March 2013.

[2] The matter was dealt with by a Conciliator on 8 April 2013 but did not settle. It was heard by me in Sydney on 2 and 11 July 2013. The matter proceeded by way of hearing as I considered that it was appropriate to do so having taken account of the factors set out in section 399 including the views of the parties noted in the Conciliator’s Report.

[3] The applicant represented himself. The respondent was represented by Mr Mead and Ms Rodriguez from The Australian Industry Group (AIG), an organisation of which the respondent is a member.

[4] The applicant gave sworn evidence. His witness statement was marked Exhibit Applicant 1 and his oral testimony is at PN 206-952 of Transcript. The following witnesses gave evidence in the respondent’s case:

Mr C. Pearce	General Manager of the respondent. His statement was marked Exhibit Respondent 2 and his oral testimony is at PN 964-1086 of Transcript;
Mr K. Stent	Queensland State Manager of the Respondent. His statement was marked Exhibit Respondent 3 and his oral testimony is at PN 1088-1207 of Transcript;
Mr S. Gialouris	New South Wales State Manager of the respondent. His statement was marked Exhibit Respondent 4 and his oral testimony is at PN 1266-1880 of Transcript.

FACTS AND EVIDENCE

[5] The applicant commenced employment with the respondent in August 2007. He was employed as a full-time permanent linehaul driver. His evidence is that he has been driving heavy vehicles for 30 years. In September 2010 the applicant was critically injured in an accident with another heavy vehicle. After a lengthy period of rehabilitation he returned to full-time duties. It is his belief that those events were the real motive for his dismissal.

[6] The respondent is a long distance linehaul transport provider. It describes itself as the biggest such business in Australia. It has depots in several locations including, relevantly for this matter, Sydney, Brisbane, Melbourne and Dubbo. The company owns all of the vehicles which are used by its employees who are linehaul drivers.

[7] It is the evidence of Mr Pearce that the company’s scheduling and rostering arrangements are based on the assumption that a driver will return from their outward journey with their assigned vehicle. If that vehicle is left at another depot it could create an imbalance in the network which may result in a cost to the company of between $2,000 and $7,500 in lost work.

[8] There is a legal requirement that heavy vehicle drivers must not drive at more than 100kms per hour. Companies such as the respondent are required to have speed limiters installed in all of their heavy vehicles and road trains. These devices ensure that the vehicles cannot accelerate to more than 100kms per hour. It is the evidence of Mr Pearce that, despite the speed limiters, vehicles can still exceed the speed limit, for example, when going down a hill. His evidence is that drivers are expected to use their brakes to ensure that does not happen.

[9] It is the evidence of Mr Pearce that, when he was recruited into the company in January 2011, there was no speeding policy in place. Part of his role was to ensure the development of such a policy as well as others dealing with issues including fatigue management, bullying and sexual harassment. Mr Pearce’s evidence is that, in June 2012, he conducted a series of safety and compliance road shows to inform drivers of the new policies and the company’s expectations of them.

[10] The applicant’s evidence is that, although he attended one of these road shows, he was present for a short time only as he had been taking his mandatory rest period. The applicant could not recall whether he ever received the new driver handbook. It is the evidence of Mr Gialouris that the applicant completed and signed a safety and compliance questionnaire, Annexure SG5 to Exhibit Respondent 4, in which he acknowledged that he had received a copy of the June 2012 handbook.

[11] The driver handbook, Annexure CP2 to Exhibit Respondent 2, informs drivers that they must drive within the speed limit and that all of the company’s vehicles are fitted with a satellite tracking system which provides the company with the ability to monitor speed and other driving behaviours. The handbook notes that termination of employment is a possible outcome in cases of misconduct which include breaches of company policies such as speed and fatigue management.

[12] It is the evidence of Mr Pearce that the company’s satellite tracking systems are monitored by an independent company, MT Data (MTD). MTD provides a daily report on whether any drivers have exceeded the speed limit on the previous day. That report is sent to Mr Pearce and the respondent’s occupational health and safety manager and a written warning is generated in relation to any speeding incident. Those warnings are sent to the relevant State Manager who is responsible for providing them to the particular driver and counselling them. Mr Pearce testified that he has complete faith in the accuracy of MTD’s data.

[13] The company has a three level speeding breach procedure. For heavy vehicles a Level 1 breach occurs when the vehicle has been monitored as travelling at 105 to 109kms per hour for more than seven seconds. A Level 2 breach occurs when the vehicle has been monitored at 110 to 114kms per hour for more than seven seconds. A Level 3 breach occurs when the vehicle has travelled at 115kms per hour or more for any period of time. It is the evidence of Mr Pearce that the seven second tolerance for Level 1 and Level 2 breaches had been agreed to with the Transport Workers’ Union of Australia (TWU).

[14] On 30 March 2012 the applicant received two written warnings for speeding incidents, one of which occurred on 19 March and the other on 20 March. Both included Level 2 and Level 3 breaches. Although the applicant initially denied having received any warnings for speeding, he acknowledged that it was his signature on each of the warning documents, Tabs 1 and 2 in Exhibit Respondent 1. The warnings were apparently provided by and signed for the company by the predecessor to Mr Gialouris.

[15] I note that the MTD reports at both Tabs 1 and 2 contain the vehicle registration number. That number, and the dates of the breaches, correspond to the excerpts from the applicant’s signed work diary also contained at each of those Tabs.

[16] It is the evidence of Mr Gialouris that, on two separate occasions, he spoke to the applicant about speeding breaches. On 15 November 2012 he spoke to the applicant about a Level 2 breach which occurred on 27 September 2012 and provided him with a written warning, Annexure SG6 to Exhibit Respondent 4 and Tab 6 in Exhibit Respondent 1. It is the evidence of Mr Gialouris that the applicant refused to sign the warning. The applicant’s evidence is that no such discussion took place neither did he receive the written warning.

[17] It is the evidence of Mr Gialouris that he also spoke to the applicant on 8 January 2013 about speeding breaches which occurred on 10 November, 3 and 17 December 2012 as well as 4 January 2013 and provided him with written warnings, Annexures SG7, 8, 9 and 10 to Exhibit Respondent 4 and Tabs 7, 8, 9 and 10 to Exhibit Respondent 1. The 17 December incident involved a Level 3 breach, the others were Level 2 breaches. It is the evidence of Mr Gialouris that the applicant refused to sign the warnings. The applicant’s evidence is that no such discussion took place neither did he receive the written warnings. The applicant says that Mr Gialouris spoke to him about logbook breach notices but not about speeding.

[18] The MTD reports which formed the basis for the written warnings referred to in the previous two paragraphs do not contain any vehicle registration number or driver name. Each of the reports refers to a “vehicle number” however that is not a registration number but appears to be a fleet number. The relevant signed excerpts from the applicant’s work diary only contain the registration number.

[19] Tabs 3, 4 and 5 in Exhibit Respondent 1 contain material concerning speeding events on 24, 26 and 28 March 2012. However Mr Gialouris provided no evidence on these and indeed they occurred before he began his employment with the respondent. The warnings are not signed by anyone and there is no evidence that they were provided to the applicant. Again, the MTD reports at these Tabs do not contain a vehicle registration number or driver name.

[20] Each of the written warnings referred to in the previous paragraphs is in a standard form and includes a statement that it is a formal warning that the employee’s conduct has been unacceptable and must not be repeated. It goes onto provide that, if the conduct reoccurs, it could lead to disciplinary action which may include termination of employment.

[21] The applicant does not accept that he has a history of speeding. His evidence is that, on the contrary, he has a good driving record particularly when consideration is given to the very lengthy hours that he spends driving. The applicant provided a print out of his driving record from the New South Wales Roads and Maritime Services, formerly the Roads and Traffic Authority, Exhibit Applicant 2. The record extends from August 1978 until 20 October 2012. It shows several speeding and other offences, however, it is over an almost 35 year period and many did not involve the driving of a heavy vehicle.

[22] The applicant questions whether the MTD data is accurate. Under cross-examination he ultimately accepted that it might have been his truck which was involved in some of the speeding incidents but suggested that he was not driving it at the particular times. It is the applicant’s evidence that overuse of the brakes on heavy vehicles can lead to various safety issues such as overheating of the brakes and hubs catching fire. His evidence is that he prefers to keep his brakes for emergencies.

[23] It is the evidence of Mr Gialouris that there would not be enough hills in succession on the particular roads for axels or hubs to overheat unless a driver was continuously riding the brakes. It is also the evidence of Mr Gialouris that he is not aware of any problems with the MTD data and understands that MTD is used by a number of major transport companies. Mr Gialouris gave evidence that he had no reason to believe that the speed limiters on the vehicles which had been driven by the applicant had been tampered with. He says that the applicant had never complained that such a thing had occurred.

[24] For some extended period of time prior to December 2012 the applicant carried out set runs for one particular customer of the respondent. This involved leaving Sydney at 7pm, driving to Melbourne, staying in accommodation at the Melbourne depot for 10-12 hours, leaving Melbourne at 7pm on the second day, returning to Sydney at about 7am on the third day. This work took place over five nights a week. The applicant was also required to do other runs from time to time, for example, from Sydney to Dubbo.

[25] At some point during December 2012 the customer for whom the applicant had been doing the set runs decided to change the pick-up times by two hours. There were discussions between the applicant and Mr Gialouris about this change. It is the evidence of Mr Gialouris that the applicant told him that he wanted to do another run from the end of January 2013. It is also his evidence that he told the applicant that all that was available were “ad hoc” runs and that the applicant said that he wanted to “give that a go”. It is the evidence of Mr Gialouris that if he had given the applicant another set run at that time it would have displaced one of the other permanent drivers.

[26] The applicant’s evidence is that he did not understand that he was to be an “ad hoc” driver. His evidence is that he believed Mr Gialouris was going to look for another permanent run for him. The applicant agrees that he did some local runs after he finished his long term set run. He then took some annual leave.

[27] In mid-February the applicant was allocated a job which involved driving from Sydney to Brisbane and back again. Although there was no evidence of the exact date it appears that this happened on 15 and 16 February. The applicant was then given this job again leaving Sydney on 18 February. It is the applicant’s evidence that he understood that this was to be his new set run. The evidence of Mr Gialouris is that it was an “ad hoc” run.

[28] After his arrival at the Brisbane depot on 19 February the applicant attended the office to inquire about his return trip. His evidence is that he was told that he would not be allocated a return load and would be “held over” in Brisbane. The relevant enterprise agreement, Bunker Freight Lines & TWU Enterprise Agreement 2011 (the Agreement) provides for the payment of a “held over allowance” in certain circumstances. The applicant’s evidence is that he refuses to work under conditions where he would not receive his usual rate of pay.

[29] It is Mr Stent’s evidence that the applicant was not told that he was to be “held over” in Brisbane. His evidence is that he overheard the Brisbane allocator telling the applicant that there was no load for him at that stage and that he should go and get some rest. There is a requirement that heavy vehicle drivers have at least 10 hours rest before driving again. Mr Stent’s evidence is that he then told the applicant that they were trying to source work for him so he should rest and return later. The applicant denies that Mr Stent had any part in this discussion.

[30] The applicant attempted to contact Mr Gialouris. There is some difference between them as to when they spoke, however, at some point, the applicant was told to return to the Brisbane office to clarify the situation. His evidence is that he was told that he would not be allocated a return load and should remain at the Brisbane depot. He asked for this to be put in writing.

[31] Mr Stent’s evidence is that he heard the allocator telling the applicant that nothing had changed and that he, the applicant, should go and sleep. It is Mr Stent’s evidence that he told the applicant that he was not going to put anything in writing, he was not refusing to give the applicant a load but was hoping to get something for him soon. Again, the applicant denies that Mr Stent took part in this discussion.

[32] Mr Stent’s evidence is that the applicant came back sometime later and said that the situation was “playing with his fatigue”. He asked why he couldn’t be given one of the outbound loads displayed on a whiteboard in the office. Mr Stent’s evidence is that he explained that those loads were all set runs and if he gave one of them to the applicant there would be drivers in the wrong city at the wrong time. He again told the applicant to go and have his rest. Mr Stent’s evidence is that the applicant again asked for something in writing which he refused. The applicant denies that this conversation occurred.

[33] Mr Stent’s evidence is that, because the applicant kept hassling him, he arranged to bring forward a load from Brisbane to Dubbo as he knew that the applicant would then be given a load from Dubbo to Sydney. The Dubbo run was to leave Brisbane at 11.30pm or midnight that night.

[34] The applicant returned to the office at around 1.30pm. Mr Stent’s evidence is that he informed the applicant about the Dubbo run. The applicant’s evidence is that it was actually Mr Gialouris who informed him of this. The applicant does however agree that he had a conversation with Mr Stent during which he informed Mr Stent that he couldn’t do the Dubbo run because he didn’t have sufficient time for his rest. Mr Stent’s evidence is that he told the applicant to get to bed as there was plenty of time for sleep before the run was due to depart.

[35] The applicant informed Mr Stent that he was returning to Sydney. His evidence is that he believed that it would be unsafe for him to do the trip to Dubbo because he would not have had enough rest. The applicant’s evidence is that someone in Brisbane, possibly Mr Stent, told him that if he did not remain in Brisbane he would be surrendering his employment.

[36] Mr Stent denies making any such remark. His evidence is that he told the applicant that he couldn’t just leave the truck and that he would have to take the matter up with the applicant’s manager. It is the evidence of Mr Stent that he has the authority to give directives to interstate drivers when they are at the Brisbane depot. The applicant agreed that interstate managers and supervisors could give directives to drivers.

[37] The applicant’s evidence is that he had appointments in Sydney on the morning of 20 February and he needed to return for these. It is the evidence of both Mr Stent and Mr Gialouris that the applicant did not mention any such appointments to them.

[38] The applicant and Mr Gialouris had a telephone conversation during which the applicant said that he was in an agitated state and was going to return to Sydney. Mr Gialouris told him that it was his choice to abandon the truck in Brisbane but that, if he did, the matter would be discussed when the applicant returned to Sydney. It is the evidence of Mr Gialouris that he told the applicant that he would contact him the next day to arrange a meeting. The applicant’s evidence is that this part of their discussion took place in a further telephone call after he had landed in Sydney after the flight from Brisbane.

[39] During a telephone conversation on 20 February between the applicant and Mr Gialouris arrangements were made for a meeting to be held the following day at the Sydney depot. Mr Gialouris informed the applicant that he would not be allocated any further work until the events in Brisbane had been discussed. He also informed the applicant that he could bring a support person with him to the meeting. The applicant agreed that he had been informed of this.

[40] At the meeting on 21 February both the applicant and Mr Gialouris were present. A manager from the respondent’s Western Australian operations attended as a witness. Mr Gialouris told the applicant that there were two issues to be discussed: the events in Brisbane and a speeding incident on 16 February 2013.

[41] The applicant provided Mr Gialouris with a letter giving his version of what had taken place in Brisbane. The letter is dated 19 February and is Annexure SG12 to Exhibit Respondent 4. The applicant’s evidence is that the time on the letter of 1300hrs was Daylight Savings Time and that it was 12.30pm in Brisbane. He also agreed that, when he wrote the letter, he knew that he still had 11 hours in which to rest before the Dubbo load was due to leave the Brisbane depot.

[42] In the letter the applicant states that he decided to return to Sydney “to defuse an increasingly volatile situation”. He also states that the Brisbane events were the latest in a series regarding work allocation since the “termination of my permanent Sydney to Melbourne run”. The applicant claims that his job had become increasingly difficult to the point of being hazardous and notes that he had raised the issue with various supervisors and occupational health and safety representatives.

[43] It is the evidence of Mr Gialouris that he read the applicant’s letter, asked the applicant if he had anything to add and, upon receiving a negative reply, told the applicant that it was not acceptable. His evidence is that he then informed the applicant that he had received another Level 3 speeding breach on 16 February. He showed the applicant the MTD report and the applicant’s speeding history for the previous year, Annexures SG13 and SG14 to Exhibit Respondent 4. It is the evidence of Mr Gialouris that the applicant stated that the reason he was speeding from time to time was because he was given different trucks to drive. Mr Gialouris informed the applicant that, regardless of the truck, speeding was not tolerated.

[44] The applicant’s evidence is that, although he and Mr Gialouris had a brief discussion about the Brisbane events and Mr Gialouris looked at the letter of 19 February, there was no mention of speeding on 16 February nor was he provided with the MTD report. I note that the MTD report at Annexure SG13 contains a vehicle registration number and the applicant’s name as the driver. There is no excerpt from the applicant’s work diary for this date. I also note that Annexure SG14 shows the applicant as being the driver in each instance but there are no work diary excerpts to support this.

[45] Mr Gialouris left the meeting and telephoned Mr Pearce in Melbourne. After a discussion between them Mr Pearce made the decision that the applicant’s employment should be terminated. His evidence is that the reasons for his decision were the applicant’s history of speeding breaches and his actions in Brisbane including the fact that he had abandoned the truck. It is the evidence of Mr Pearce that the applicant’s accident in 2010 was not a matter he considered in making his decision.

[46] Mr Gialouris returned to the meeting and informed the applicant of Mr Pearce’s decision and the reasons for the dismissal. The applicant’s evidence is that he was not provided with any reasons. A letter of termination dated 22 February 2013 was posted to the applicant. His evidence is that he did not receive it until about five working days later and he did not receive his final pay until 10 working days after his dismissal.

[47] The letter of termination and summary of the applicant’s final pay is at Annexure SG15 to Exhibit Respondent 4. The letter is also attached to Exhibit Applicant 1. In the letter Mr Gialouris refers to the matters discussed in the meeting of 21 February and then states:

“Your response to the allegations was reviewed and put forward to senior management of the business for consideration. Upon review senior management advised that your response was unacceptable. Your failure to respond to a reasonable directive whilst you were in Brisbane put unnecessary pressure and strain on our business. Further, your continued disregard for the company Speed policy and procedure will no longer be tolerated. Your speeding offence on 16 February 2013 was the eleventh breach in the past 12 months.

“For these reasons your employment with the company will end immediately.

“You will be paid the required notice period in accordance with the Enterprise Agreement and any accrued entitlements and outstanding remuneration, including superannuation, up to your termination date of 21 February 2013.”

APPLICANT’S SUBMISSIONS

[48] A written outline of submissions was provided prior to the hearing. The applicant also made oral submissions.

[49] The applicant stated that he was a long-serving employee of 52 years of age and had expected to complete his working life in the employment of the respondent. He was unable to afford legal representation.

[50] The applicant submitted that he had a good driving record especially in light of the many thousands of driving hours he had undertaken during his career. He noted that there had been no previous issues with his performance and submitted that he had never received a formal safety warning. The applicant also noted that he had not received any official infringement notices for any of the speeding breaches which had been alleged by the respondent.

[51] The applicant submitted that the alleged breaches had never been raised with him. The evidence of the respondent’s witnesses about conversations alleged to have taken place with him were creations and just cynical attempts to lead me in the wrong direction. In addition the application submitted that it was unfair to scrutinise the minute details of his work history. The applicant questioned why, if he did have such a bad record, he had not been dismissed earlier.

[52] The applicant submitted that his accident in 2010 had made him a safer driver. He refused to watch the speedometer all the time as it was more important to observe the road conditions and other traffic. The applicant submitted that there were circumstances in which it was unsafe to reduce speed. He also submitted that, in his view, over-zealous policing of the road transport industry was making it less safe. The applicant submitted that the real motive for his dismissal was his 2010 accident and its aftermath.

[53] The applicant submitted that I should prefer his evidence as to what he was told in Brisbane to that of Mr Stent which was a creation. He was told that he was to be held over without proper pay. The applicant submitted that the company’s refusal to allocate work to him in Brisbane on 19 February 2013 effectively amounted to the termination of his employment on that day.

[54] The applicant submitted that his dismissal after only a 10 or 15 minute telephone discussion was very harsh and unfair.

[55] The applicant stated that he was shocked by the dismissal. Further, it had caused significant financial and other strains upon him and his family. The applicant stated that he has not been able to find alternative employment. He provided several character references.

[56] The applicant stated that he was dismissed without notice and was not provided with a statement of any payments made to him. I note that the letter of termination referred to in paragraph 47 of this decision indicates that notice was to be paid in accordance with the requirements of the Agreement. The attached statement referred to the payment of five weeks in lieu of notice as well as other entitlements.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[57] A written outline of submissions was provided prior to the hearing. Ms Rodriguez also made oral submissions on the respondent’s behalf.

[58] It was submitted that the applicant’s employment was regulated by his contract of employment, the Agreement, the driver handbook, the company’s speed and fatigue management procedures as well as relevant road transport and health and safety legislation.

[59] The respondent submitted that there were valid reasons for the applicant’s dismissal. Those reasons were the applicant’s refusal to comply with Mr Stent’s lawful and reasonable direction as well as his repeated speeding breaches.

[60] Ms Rodriguez submitted that the undisputed evidence was that on 19 February 2013 the applicant decided to return to Sydney before being told about the allocation of the run to Dubbo. Even after being informed of the allocation he persisted with his plan and in so doing refused to carry out his duties.

[61] Ms Rodriguez noted that the applicant’s evidence is that he had appointments in Sydney on the morning of 20 February. She also noted that he had not told anyone in the company about those appointments. Ms Rodriguez submitted that I should reject the applicant’s evidence that he returned to Sydney because the Dubbo run was unsafe: he had already decided to return before knowing about this run; he did not include such a reason in his letter or witness statement; and, he still had more than 10 hours in which to rest before the Dubbo run was due to depart.

[62] Ms Rodriguez submitted that Mr Stent’s direction to the applicant was entirely legitimate and reasonable. She noted Mr Pearce’s evidence as to the potential cost to the business because of the imbalance in the network caused by the applicant leaving the truck in Brisbane.

[63] Ms Rodriguez submitted that the respondent had provided irrefutable evidence that the applicant had breached its speeding policy on several occasions. She noted that six of the written warnings were for Level 3 breaches and four for Level 2 breaches. Ms Rodriguez submitted that the applicant’s work diary corresponds to the MTD report in each instance.

[64] Ms Rodriguez submitted that the applicant’s speeding breaches put lives at risk and were not justifiable. Further they showed that he had a complete disregard for road safety, transport legislation and the respondent’s policies and procedures. Ms Rodriguez also noted that the respondent had a special duty of care because of the nature of the industry.

[65] Ms Rodriguez submitted that the applicant had been informed of the reasons for his dismissal, had been given an opportunity to respond and had been told that he could bring a support person to the meeting on 21 February 2013. She submitted that if any procedural deficiencies are found, they are outweighed by the serious nature of the applicant’s conduct.

[66] The respondent submitted that the dismissal was not harsh, unjust or unreasonable.

[67] The respondent relied on the following cases in support of its submissions: Starkey v Cootes Transport Group Pty Ltd [2011] FWA 228; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Miller v University of New South Wales [PR910187]; Farquharson v Qantas Airways Limited [2006] AIRC 488; Holcim (Australia) Pty Ltd v Serafini[2011] FWAFB 7794; Qantas Airways Ltd v Cornwall [1998] FCA 865; Rand Transport (1986) Pty Ltd v Gervasoni[2010] FWAFB 2526; Serafini v Holcim (Australia) Pty Ltd[2011] FWA 4214; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; Potter v Workcover Corporation (2004) 133 IR 458; Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (Selvachandran); Sprigg v Paul’s Licensed Festival Supermarket [Print R0235]; Tosco Mihajlovski v I R Cootes Pty Ltd [PR943954]; and , Woolworths v Brown [PR963023].

CONCLUSIONS

[68] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[69] As will have been apparent from paragraph 1 of this decision the application was made within the period required in subsection 394(2). There is no dispute that the applicant is a person protected from unfair dismissal. Paragraphs (c) and (d) of subsection 396 have no relevance in the present matter.

[70] Section 385 provides that a person has been unfairly dismissed if FWC is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[71] Paragraph (a) is clearly met in relation to the applicant. Paragraphs (c) and (d) have no relevance.

[72] In order to decide whether the dismissal of the applicant was harsh, unjust or unreasonable it is necessary to turn to section 387 which sets out the factors which must be taken into account by FWC. Those factors are as follows:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWC considers relevant.”

[73] The first matter which must be taken into account is whether there was a valid reason for the applicant’s dismissal. The meaning of valid reason has been the subject of much consideration by the Courts as well as by this Tribunal and its predecessors. There seems to be general acceptance of the often quoted words of Northrop J in Selvachandran that it means “sound, defensible or well founded”.

[74] The reasons relied on for the termination in this matter relate to the alleged misconduct of the applicant. In this regard I have to determine for myself whether the misconduct, or any part of it that is contested, took place and, if so, whether it amounted to a valid reason for the dismissal: King v Freshmore (Vic) Pty Ltd [Print S4213].

[75] It is alleged that the applicant failed to follow a reasonable and lawful direction from Mr Stent to obtain the required rest and then refused to carry out his duties by returning to Sydney without his vehicle. It is also alleged that he had several speeding breaches in the last 12 months of his employment.

[76] As will have been apparent from my earlier recitation of the evidence, there is a conflict between Mr Stent and the applicant as to what was said to the applicant in the Brisbane depot on 19 February 2013. I prefer the evidence of Mr Stent in this regard and reject the applicant’s submission that Mr Stent’s evidence was a creation. Mr Stent had no previous dealings with the applicant and played no part in the dismissal. There was nothing before me to suggest that Mr Stent had any reason to concoct his evidence.

[77] The directions to go and rest given by Mr Stent to the applicant were reasonable and lawful and the applicant’s repeated failure to comply with them amounted to misconduct. In addition, the applicant’s actions in refusing to do the Dubbo run and leaving the truck in Brisbane was also misconduct. I do not accept that it would have been unsafe for the applicant to have carried out the run to Dubbo. At the point when he was informed of the run he still had adequate time in which to undertake his requisite period of rest.

[78] By accepting Mr Stent’s evidence I have found that the applicant was not told that he was being “held over” in Brisbane. However, even if he was, the Agreement permits such a circumstance and the fact that the applicant himself refuses to work in such a situation is not the point. Of course there may be instances in which it would be unreasonable to require a driver to be “held over” but that would depend on the particular facts.

[79] The applicant’s evidence is that he had appointments in Sydney the next day and needed to return to attend them. However the applicant did not tell Mr Stent or Mr Gialouris about the appointments and they are first mentioned in the letter that the applicant gave to Mr Gialouris in the meeting on 21 February 2013. There is nothing before me as to what those appointments were for.

[80] As stated in paragraph 77 I have found that the applicant engaged in misconduct. I am satisfied that such misconduct amounted to a valid reason for his dismissal. I now turn to consider the matter of the alleged speeding breaches.

[81] The evidence is clear that the vehicle that the applicant has acknowledged he was driving on 19 and 20 March 2012 breached the respondent’s speeding policy on several occasions on each of those dates. The applicant received and signed written warnings in respect of both dates.

[82] However the situation in relation to the remainder of the alleged breaches is not as straightforward. Whilst I accept Mr Gialouris’s evidence that he spoke to the applicant on 15 November 2012 and 8 January 2013 about those breaches the paperwork does not provide the necessary evidentiary basis to establish that the applicant was driving the relevant truck on each occasion. It follows that I am unable to be certain that the applicant was responsible for each or indeed any of those breaches.

[83] I accept that, in the context of the road transport industry and the respondent’s policies, any speeding breaches are serious matters and should be dealt with appropriately. However, in circumstances where I can only be satisfied that the applicant offended in this regard almost 11 months prior to his dismissal I do not consider that this in itself provides a valid reason for the termination.

[84] Nevertheless, as stated earlier, I have found that there was a valid reason for the dismissal.

[85] I now turn to consider what might be termed the “procedural fairness” factors in section 387, namely paragraphs (b), (c) and (d). I am satisfied that the applicant was notified of what I have found to be a valid reason for his dismissal. He was provided with an opportunity to respond to that reason. There was no unreasonable refusal to allow the applicant to have a support person at the meeting on 21 February 2013 and in fact he was informed that he could bring such a person to that meeting.

[86] Paragraph (e) of section 387 is not relevant in this matter as the applicant was not dismissed for performance reasons. I have taken account of paragraphs (f) and (g). The company’s response to the applicant’s claim was signed by its Human Resources Manager and notes that, at the time of the applicant’s dismissal, it employed 237 employees.

[87] There are several matters I wish to consider under paragraph (h) of section 387. The first is the applicant’s length of service. The second is the effect that the dismissal has had upon the applicant’s personal and financial circumstances. The third is the fact that the applicant has been unable to obtain other employment. The fourth is the applicant’s claim that the real reason for the dismissal was his 2010 accident and its aftermath. I accept that the applicant genuinely believes that this is the case. However Mr Pearce specifically denied this and I accept his evidence.

[88] In all of the circumstances and having taken account of each of the factors in section 387 and my findings thereon I have determined, on balance, that the dismissal of the applicant was not harsh, unjust or unreasonable. It follows from this and other matters addressed in paragraphs 70 and 71 that the dismissal was not unfair.

[89] The application is dismissed. An order PR538983 to this effect is issued at the same time as this decision.

[90] It should be noted that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all round” has been accorded to each of the parties as provided in section 381(2) of the Act.

COMMISSIONER

Appearances:

V. Morrison the applicant

M. Mead and F Rodriguez from The Australian Industry Group for Villacare Pty Ltd T/A Bunker Freight Lines.

Hearing details:

Sydney.

2013.

July, 2 and 11.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR538982>