Patrick O'Sullivan v Qube Logistics (SL) Pty Ltd T/A Qube Logistics

[2016] FWC 5581

[2016] FWC 5581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick O’Sullivan
v
Qube Logistics (SL) Pty Ltd T/A Qube Logistics
(U2016/4494)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 11 AUGUST 2016

Application for relief from unfair dismissal - harsh, unjust or unreasonable – dismissal found to be fair – application dismissed.

[1] Mr Patrick John O’Sullivan (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 11 February 2016 alleging that the termination of his employment by Qube Logistics (SL) Pty Ltd T/A Qube Logistics (the Respondent) on 28 January 2016 was unfair.

[2] The application was heard on 25 July 2016. At the hearing, Mr O’Sullivan appeared and gave evidence on his own behalf. Mr Luke McCrone, an Organiser with the Transport Workers’ Union of Australia (TWU), also gave evidence on behalf of Mr O’Sullivan. Mr Daniel Coulton, the Respondent’s National Industrial Relations Manager, appeared for the Respondent. Mr Richard Spall, the Respondent’s General Manager; Mr Nigel Clifford, the Respondent’s Safety, Health and Environment Coordinator; Ms Emily Link, the Respondent’s National Human Resources and Branding Manager; Mr Adrian Pasa, Branch Manager at the Respondent’s Altona North site; and Mr Timothy Rodier, the Respondent’s Transport Manager, all gave evidence for the Respondent.

[3] For the reasons outlined below, I have found that Mr O’Sullivan’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Background

[4] Mr O’Sullivan was employed as a Professional Operator (truck driver) to deliver shipping containers and bulk products from the Respondent’s Altona facility. In his application Mr O’Sullivan stated that he commenced employment with the Respondent on 10 November 2009. The Respondent on the other hand contended that Mr O’Sullivan had commenced employment with it on 5 September 2012. The difference is not material in the context of determining whether or not Mr O’Sullivan’s dismissal was unfair.

[5] The Respondent in its written submissions 1 provided a detailed overview of aspects of Mr O’Sullivan’s employment record, highlighting a number of disciplinary issues. The following summary is largely drawn from that overview and other material before the Commission.

• In late 2013 the Respondent received a Traffic Expiation Notice relating to an incident involving one of its vehicles which was driven by Mr O’Sullivan. The offence involved the vehicle entering a level crossing with warning lights or bells. There is no material before the Commission indicating that Mr O’Sullivan was counselled or given a formal warning as a result of this incident.

• On 20 March 2014 Mr Spall reported an incident of unsafe driving involving one of the Respondent’s trucks, with it later established that Mr O’Sullivan was in control of the vehicle at the time of the incident. Mr O’Sullivan was stood down on 1 September 2014 pending an investigation into the incident and on 18 September 2014 was issued a written warning as a result of the incident. The written warning stated, inter alia, as follows:

“I refer to the information gathering meeting you attended on 4th September 2014, the meeting was in regard to the allegation that:

• On the morning of 20th March 2014, you were observed driving in an unsafe manner whilst driving an Aurizon Prime Mover, this caused an incident with a passenger vehicle. The other vehicle was forced to take evasive action to avoid a collision.

I have determined that allegation was substantiated, this issue represents a breach of Aurizon’s Code of Conduct, in particular:

• Code of Conduct – Put our safety and that of others first – Zero Harm.



• Code of Conduct – Use our systems, equipment property and tools appropriately – Safeguard our systems, equipment, property and tools from damage and misuse.

…

Having considered all of the information available I have decided to issue you with a warning … Any future breaches of the Aurizon Code of Conduct may result in further disciplinary action including termination of your employment …” 2

By way of background, Qube Logistics acquired the company CRT Group Pty Limited (CRT) on 1 December 2014. CRT was a wholly owned subsidiary of Aurizon, hence the reference to the Aurizon Code of Conduct in the above written warning. CRT’s business name was formally changed to that of the Respondent’s on 4 February 2015.

• In early March 2015 Mr O’Sullivan returned to work following a lengthy absence as a result of an injury that occurred in mid-2013. Upon his return to work, the Respondent arranged for a competency assessment to be undertaken due to Mr O’Sullivan’s extended absence and the complicated nature of work performed by him. Mr O’Sullivan failed the competency assessment and was assigned to a competent driver for refresher training. Mr O’Sullivan subsequently underwent a further competency assessment on 14 May 2015 and was deemed fit to operate the equipment specific to his role.

• On 9 June 2015 there was a product spillage at a customer’s site involving one of the Respondent’s vehicles which discharged one tonne of product onto the ground. Mr O’Sullivan was in control of discharging product from the vehicle’s container into the customer’s silo. An investigation was subsequently undertaken and concluded that the incident was a direct result of operator negligence. More specifically, the investigation established that Mr O’Sullivan had failed to follow fundamental aspects of the Respondent’s Operating Procedure for Rotary Valve and Discharge Trailers. On 19 June 2015 Mr O’Sullivan was issued a final written warning as a result of the incident. The final written warning read as follows:

“RE: Final Written Warning

On 9th June 2015 you were … assigned to deliver product … to Britax at Sunshine using a rotary unit.

During this delivery a significant amount of product (approximately one tonne) was spilled due to ‘silo hose end came off’ and ‘rubber plastic ring failed’. You completed and [sic] incident report which described you had left the system running while unattended as you ‘went to the toilet’. The incident report also describes the use of a ‘rubber plastic ring’ to secure the hose.

…

The Operating Procedure for Rotary Valve and Discharge Trailers is clear in relation to the above two critical errors.

10.3.2 Set Up Procedures:

• “Make sure all fittings are firm and tight. Tape the cam locks to avoid accidental loosening”

10.3.6 Commencing discharge at delivery site:

• “Check all filling hoses and couplings are fixed securely”



• “Do not leave the system running while unattended”



• “The Operator is required to be in the vicinity of the controls in case of unforeseen circumstances”

In this instance you failed to follow the Company procedures and as a result have caused significant financial loss to the Company, loss of reputation with our client and significant operational downtime.

The Company is confident you are aware of the correct procedures to follow in your usual role as a Professional Operator and notes a written warning dated 18/09/2014 for breaching the Company Code of Conduct is contained on you [sic] file. This failure to complete your duties correctly and in line with working procedures is not acceptable. The Company considers this negligent behaviour and is a serious matter. It is imperative that you complete your duties in line with company procedures … A copy of this written warning will be retained on your personnel file in Company records and may be relied on in the future. Any further failure to comply with the obligations of your role may result in further disciplinary action which may include a review of your ongoing employment.” 3

• On 12 August 2015 Mr Rodier informed Mr O’Sullivan that his driver’s licence would expire at midnight that night and that if he was unable to provide evidence of his licence renewal that he would not be able to commence work the following day. Mr O’Sullivan arrived for work on 13 August 2015 and was unable to provide evidence that he held a current valid driver’s licence and was subsequently stood down. The matter was subsequently investigated but did not result in any disciplinary action being taken against Mr O’Sullivan.

• On 28 October 2015 the Respondent prepared a Manual Compliance Non Conformance Report due to an over speed being recorded by a vehicle being driven by Mr O’Sullivan on 20 October 2015. Mr O’Sullivan signed a copy of the Report on 9 November 2015. The speeding was detected by C-Track, a GPS monitoring device installed in the Respondent’s vehicles which among other things monitors vehicle speed.

• On 30 December 2015 the Respondent received an Infringement Notice for speeding regarding one of its vehicles relating to an offence which occurred on 14 December 2015. The Respondent established that Mr O’Sullivan was in control of the vehicle at the time of the offence. The Respondent met with Mr O’Sullivan on 12 January 2016 to discuss the infringement notice. Mr McCrone of the TWU also attended the meeting. The meeting was suspended to enable Mr O’Sullivan time to gather further information.

• At some stage between 12 and 15 January 2016 Ms Link received notice of a complaint from a member of the public dated 19 December 2015 pertaining to two separate incidents on that day, with a photograph of the vehicle involved in the second incident attached to the complaint. The complaint read as follows:

“I would like to make a formal complaint with regards to 2 of your drivers that I was unfortunate enough to have to witness driving today.

First experience early this morning shocked me at how recklessly close he was to my vehicle and then several others as he weaved through lanes back and forth across 3. I am well aware of no nose on a truck and that they may sometimes appear closer than they may be however this man was certainly driving dangerously close and tailgating and putting unnecessary pressure on drivers. Disturbing enough to wonder which company he would drive for. Then to have a similar experience again this afternoon you can imagine my dismay when it was another qube vehicle. I find it worrisome that qube would hire or contract drivers which have such disregard for personal and public safety. I have pictures that i have attached and expect someone at some level or follow-up with this driver and trust you will pass this on to whoever is necessary.” 4

• The Respondent established that Mr O’Sullivan was in control of one of the Respondent’s vehicles operating in the area at the time and determined it probable that Mr O’Sullivan was in control of the vehicle involved in the second incident. Ms Link sent a Notice to Show Cause letter to Mr O’Sullivan on 15 January 2016 concerning the abovementioned speeding infringement and complaint. That letter was also copied to Mr McCrone. Mr O’Sullivan responded on 21 January 2016. In his response Mr O’Sullivan accepted both that he had been speeding and responsibility for his brief period of inattention but highlighted that he had only been travelling 5 km/h over the speed limit. As to the complaint, Mr O’Sullivan contended, inter alia, that given the lack of details regarding the incident attributed to the vehicle he was driving it was likely that the complainant was “upset they had missed the opportunity to take a photo of the earlier incident and saw this as an opportunity to make up for this.” 5

• Mr O’Sullivan was summarily dismissed on 28 January 2016. The termination letter stated as follows:

“Ongoing Employment with Qube Logistics

I refer to our notice to show cause dated 15/01/2016 relating to a speed breach and a complaint of dangerous driving received from a member of the public and your response (undated) received via email on 21/01/2016.

The ongoing failure to perform your duties safely and professionally and in line with Company standards are of serious concern.

You attended a verbal discussion with myself, your Manager Tim Rodier and a support person of your choice (Luke McCrone) on 12/01/2016 and your verbal responses during this conversation in addition to your written response to the show cause notice were carefully reviewed by the Company. The Company believes that the responses you have provided do not justify or suitably explain your behaviour. The Company is confident you are aware of the obligations of your employment.

On 18thSeptember 2014 you received a written warning for driving in an unsafe manner. On 19th June 2015 you received a final written warning for failing to follow Company working procedures which resulted in financial loss, loss of reputation and significant operational downtime.

Although we have taken your responses into consideration we cannot condone these serious and ongoing breaches of your role which we consider to constitute misconduct.

As you are aware, it is a fundamental requirement of your role as a Truck Driver to follow safe operating procedures and to represent the Company professionally at all times that you are completing Company work.

The Company has determined that your behaviour is inconsistent with the continuation of your contract of employment. As such your employment will be terminated effectively immediately (28/01/2016). You will be paid a notice period and any monies owing to you within a reasonable timeframe.” 6

The Applicant’s case

[6] In his written submissions Mr O’Sullivan set out his version of events relating to a number of incidents in which he was involved, in particular the August 2015 licence renewal issue, the complaint from a member of the public, the unsafe driving incident in March 2014 and the June 2015 spillage. In short, Mr O’Sullivan submitted that:

• the Respondent’s conduct regarding the licence renewal issue, and in particular the disproved allegations made by Mr Rodier that he had threatened Ms Link, highlighted that it would resort to any tactics to obtain its objectives, adding that he could not see how any credibility could be given to the Respondent’s evidence regarding the issue because there had been a long campaign of harassment against him over the previous 12 months;

• with regard to the complaint from the member of the public – the complainant did not identify him, the photograph provided could have been taken at any time, the allegation that he was driving in a radical manner was false and he felt the complaint was fabricated;

• as to the unsafe driving incident in 2014 – there was no complaint from the driver of the vehicle and there had been no grounds for him to be issued with a warning as there was no accident, complaint or anything to substantiate that he had been driving dangerously;

• in respect of the spillage – the spillage had occurred because the equipment had failed as the cam locks came undone as they were worn, adding that as a result he considered the Respondent partially responsible for the spillage; and

• he was aware of a situation where another driver was involved with a spillage yet that driver had not received a written warning, adding that certain “things” get reported to human resources management while others were overlooked.

[7] At the hearing Mr O’Sullivan reiterated much of the above. In addition, Mr O’Sullivan submitted, inter alia, that:

• he considered the written warning issued to him as a result of the unsafe driving incident in 2014 to have been unfair given his view that the other driver was speeding;

• the photograph provided by the complainant had been photoshopped by the Respondent;

• with regard to the complaint, there was no proof that the incident took place, adding that he considered that the Respondent had sought to exploit the complaint to their advantage by building a case against him for dangerous driving;

• he probably had done the wrong thing in leaving the vehicle unattended on the day of the spillage;

• there was no tape available on the day of the spillage;

• other drivers used methods other than tape to secure the cam locks;

• the Respondent was partially responsible for the spillage as a result of the cam locks not being properly maintained; and

• with regard to 2013 level crossing incident, he had been placed under undue pressure by the Respondent to get new tyres fitted as the vehicle had not been properly maintained.

[8] As to remedy, Mr O’Sullivan submitted that having heard the Respondent’s submissions and evidence he no longer considered reinstatement appropriate and therefore sought compensation in lieu of reinstatement.

[9] Key aspects of Mr O’Sullivan’s viva voce evidence were that:

• with regard to 2013 level crossing incident, he had been placed under undue pressure by the Respondent to get new tyres fitted as the vehicle had not been properly maintained;

• he had received a written warning as a result of the unsafe driving incident in 2014, adding that he disagreed that he pulled out in front of the car and that Mr Spall’s statement did not match up with the statistics in terms of the other vehicle’s speed and distance;

• he disputed that the other vehicle had to take action to avoid a collision;

• the other driver created the dangerous situation by his excessive speed;

• when discharge is taking place from a vehicle the driver is meant to be in the vicinity of the vehicle, acknowledging that on the date of the spillage he had left the vehicle;

• standard operating procedure specifies that cam locks be secured with tape, adding that on the day of the spillage he had secured the cam lock with a rubber ring which was allowed if there was no tape available;

• he was sure he would have asked the office for tape on the day of the spillage;

• drivers use alternative means to secure the cam locks because there are quite a lot of times when tape is not available;

• in his incident report regarding the spillage he acknowledged that he was at fault in two significant ways, i.e. he was away from the vehicle and he failed to follow correct procedure;

• had the cam locks been taped the incident would not have occurred;

• tape is normally kept in a driver’s toolbox, with most drivers carrying extra tape in their toolbox;

• he had received a final written warning as a result of the spillage incident and understood the requirement set out in that final written warning for compliance in all facets going forward;

• he accepted he was speeding on 20 October 2015;

• he probably did walk in front of a moving forklift in the Respondent’s yard on 20 October 2015;

• there were marked lines in the yard where pedestrians had to walk;

• there was no actual photographic stamp on the photograph provided by the complainant;

• he disputed that date stamp on the photograph attached to Ms Link’s witness statement 7 because it stated that the source of the photograph as “This PC” and did not identify the device/mobile phone on which the photograph was taken;

• he was operating a vehicle on the day of the incident leading to the complaint, acknowledging that the trailer in the photograph was the trailer combination that he was towing that day;

• the photograph could have been taken at any time; and

• he did not receive a written warning as a result of the licence renewal issue.

[10] Among other things, Mr McCrone deposed in his witness statement 8 that he was personally aware of one other of the Respondent’s drivers who was allowed more warnings than Mr O’Sullivan had been in relation to speeding. Mr McCrone also deposed that he considered that Mr O’Sullivan had not been given a fair opportunity to respond to the complaint made by a member of the public because there were no specific allegations contained in the complaint relating to the truck which Mr O’Sullivan was operating. In his oral evidence, Mr McCrone reiterated the material in his witness statement regarding the differential treatment of the other driver, adding that the other driver had also been dismissed but primarily as a result of failing to take appropriate equipment with him to a customer’s site. Beyond this, Mr McCrone attested that the Respondent had been very good about making sure that employees were given the opportunity to respond to allegations, other dismissals by the Respondent which he had been involved with had overwhelmingly been safety related and he considered it fair to say that the Respondent took a very dim view of repeated safety breaches.

The Respondent’s case

[11] The Respondent in its written submissions addressed each of the considerations set out in s.387 of the Act (discussed in detail below). In short, the Respondent contended that Mr O’Sullivan’s dismissal should not be viewed as harsh, unjust or unreasonable and that his application should be dismissed. The Respondent reiterated that view at the hearing. Also at the hearing, the Respondent:

• contended that as was apparent from Mr O’Sullivan’s submissions, it was a common trait throughout his employment that “it was always someone else’s fault” 9;

• submitted that throughout its investigations of the various incidents involving Mr O’Sullivan it had looked at all angles and had been more than fair and reasonable with Mr O’Sullivan; and

• highlighted that Mr O’Sullivan had been involved in seven safety related incidents since his return from workers’ compensation in March 2014, adding that it took a very hard line on compliance and safety.

[12] As to remedy, the Respondent submitted that reinstatement was not appropriate and that, as it had paid Mr O’Sullivan four weeks’ notice despite him being summarily dismissed, no further compensation should be awarded.

[13] In terms of the Respondent’s evidentiary case, Messrs Spall, Clifford and Pasa in their witness statements 10 outlined their version of events relating respectively to the unsafe driving incident in March 2014, the competency assessments undertaken by Mr O’Sullivan in March and May 2015 and the complaint from the member of the public in late 2015. Ms Link in her witness statement11 dealt with Mr O’Sullivan’s employment with the Respondent and her involvement with Mr O’Sullivan in respect of his workers’ compensation claim, his March and May 2015 competency assessments, the August 2015 licence renewal issue, the December 2015 speeding infringement and the complaint received from a member of the public. Mr Rodier in his witness statement12 set out his version of events regarding the June 2015 spillage issue which resulted in Mr O’Sullivan being issued with a final written warning and the August 2015 licence renewal incident. All of the Respondent’s witnesses in their witness statements disputed aspects of Mr O’Sullivan’s submissions.

[14] Key aspects of the Respondent’s witnesses’ oral evidence are set out below.

Mr Spall

• The vehicle he was driving on the day of the unsafe driving incident had tinted windows.

• His very clear recollection of the incident, as viewed in his rear vision mirror, was that the other vehicle had to take evasive action.

Mr Clifford

• Spillages were not a common occurrence and occurred perhaps three to five times per year, with contaminations less common than spillages.

• In respect of both spillages and contaminations, it was senior management that determined what, if any, disciplinary action might be appropriate.

• It was standard operating procedure for drivers to be reassessed after a long absence from work.

• The Respondent’s Safety, Health and Environment area was a compliance department as opposed to an enforcement department.

Ms Link

• It would be the Respondent’s State General Manager and/or one of the Directors that would make the decision to terminate an employee’s employment.

• The photograph that was submitted with the complaint from a member of the public had not to her knowledge been photoshopped by the Respondent.

• The complaint had initially been sent to Qube Ports and Bulk and given the time of year, Christmas and New Year, had not been forwarded to her until mid-January 2016.

• In investigating the complaint she had examined the run sheets to determine the position of the Respondent’s vehicles at the time of the photograph.

• She did not recall Mr O’Sullivan including in his response of 21 January 2016 to the show cause letter an assertion that Mr Ryan Davies, the other of the Respondent’s drivers working in the area on that day, had driven erratically in the morning of the day of the alleged incident as he had been late for work.

• It is a driver’s responsibility to present a valid licence when requested by the Respondent.

• On 13 August 2015 Mr O’Sullivan presented for work without evidence of having a valid licence and was stood down as a result. The receipt provided by Mr O’Sullivan and date stamped 13 August 2015 13 did not indicate that he had paid his licence renewal as it indicated an amount outstanding of $76.00, while the receipt date stamped 14 August 2015 indicated that Mr O’Sullivan held a current licence as it indicated an amount outstanding of zero dollars.

• Mr O’Sullivan had been dismissed for multiple safety and speed breaches exclusive of the licence issue.

Mr Pasa

• Forklifts have right of way in the Respondent’s yard at all times.

Mr Rodier

• Mr O’Sullivan had been stood down on 14 August 2015 because he had not presented the previous day with evidence that he held a current driver’s licence.

• Maintained that Mr O’Sullivan had made threatening remarks regarding Ms Link despite the comments not appearing in a recording of a meeting with the Respondent regarding the licence renewal issue.

• Contended that what was on the recording was completely different to what he had heard.

• Mr O’Sullivan had worked well.

• C-Track had been fitted to all of the Respondent’s trucks in early 2014.

• When C-Track had first been introduced drivers were advised that speed would be monitored and that corrective actions would be sent to managers six weeks after C-Track had been installed, with any drivers who started after that six week period of grace advised that if they were detected speeding that corrective action would be taken.

• When Mr O’Sullivan returned to work in March 2015 he was advised that C-Track had been installed in the Respondent’s vehicles and that it monitored speed among other things.

• He considered that Mr O’Sullivan had had the benefit of a six week grace period given that he returned to work in March 2015 and his first corrective action for speeding occurred in late October 2015.

• With regard to the spillage incident, there were two key issues, i.e. Mr O’Sullivan had not followed procedure by leaving the vehicle unattended and the cam lock fittings which are on the end of the hose to connect to the customer’s silo had not been properly secured.

• The tape used to secure the cam lock fittings is on hand in the Respondent’s operations office and is always in stock, adding that with regard to the Respondent’s vehicles the tape is usually kept in a driver’s tool box.

• He was not aware of drivers using any other means to secure cam locks.

• Mr O’Sullivan did not receive any form of written warning or disciplinary measure as a result of the licence renewal issue. Further, the issue did not form part of the reasons for Mr O’Sullivan’s dismissal.

• Mr O’Sullivan had been dismissed for multiple safety and speed breaches.

The statutory framework

[15] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr O’Sullivan is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows:

“385 What is an unfair dismissal

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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:

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

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

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

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

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

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

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

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

[16] There is no dispute that Mr O’Sullivan was dismissed, so s.385(a) of the Act is satisfied. Mr O’Sullivan contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Mr O’Sullivan was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[17] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria.

(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)

[18] In Rode v Burwood Mitsubishi 14 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd15. The following is an extract from the Full Bench’s decision in Rode.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added)

[19] While Mr O’Sullivan accepted responsibility for some aspects of the issues which lead to his dismissal, he also sought to attribute responsibility to the Respondent for some aspects of those issues, e.g. maintenance of the cam locks. Beyond this, Mr O’Sullivan disputed a number of aspects of the Respondent’s evidence and made a number of assertions, including that the photograph provided by the complainant had been photoshopped by the Respondent. In short, Mr O’Sullivan disputed the validity of the issues which underpinned his dismissal.

[20] The Respondent contended that Mr O’Sullivan had been dismissed as a direct result of incidents concerning the unsafe operation of a prime mover, a failure to follow proper procedures in the operation of a rotary valve and a speeding breach, adding that the repeated nature of these actions exhibited conduct that negatively affected the safety and welfare of employees and the general public. In support of its submission, the Respondent relied on the Full Bench decision in Aperio Group (Australia) Pty Ltd T/a Aperio Finewrap v V Sulemanoski 16.

[21] An analysis of the material before the Commission indicates, among other things, that:

● Mr O’Sullivan received a written warning on 18 September 2014 after the unsafe driving incident;

● Mr Spall’s evidence was that his very clear recollection of the incident was that the other vehicle had to take evasive action to avoid colliding with the vehicle driven by Mr O’Sullivan;

● upon his return to work in March 2015 Mr O’Sullivan had been advised that C-Track had been fitted to the Respondent’s vehicles and that it monitored speed;

● on 19 June 2015 Mr O’Sullivan received a final written warning after the spillage incident;

● Mr O’Sullivan acknowledged that he left the vehicle unattended while it was discharging and secured the vehicle’s cam locks using rubber rings;

● the Respondent’s Operating Procedures for Rotary Valve Discharge Trailers 17 states:

“Note: Make sure all fittings are firm and tight. Tape the cam locks to avoid accidental loosening” 18, and

“DO NOT LEAVE THE SYSTEM RUNNING WHILE UNATTENDED.

The Operators is not to sit in the cabin of the truck when the system is running.

The Operator is required to be in the vicinity of the controls in case of unforeseen circumstances” 19;

● C-Track detected the vehicle which Mr O’Sullivan was operating on 20 October 2015 to be travelling above the speed limit, with Mr O’Sullivan accepting in his evidence that he was speeding that day;

● the vehicle which Mr O’Sullivan was operating on 14 December 2015 was detected by a speed camera doing 5kmh over the speed limit;

● the Respondent’s Human Resources Handbook states that:

“Qube is committed to providing a workplace that does not require, encourage or reward speeding by heavy vehicle drivers … Any operators failing to comply with our Speed Policy will face disciplinary action. For more information please refer to our Speed Policy.” 20;

● Mr O’Sullivan acknowledged that he was operating a vehicle on the day of the incident leading to the complaint and that the trailer in the photograph was the combination he was towing that day;

● Ms Link attested that she was not aware of the photograph having been photoshopped by the Respondent; and

● Mr McCrone attested that the Respondent took a very dim view of repeated safety breaches.

[22] As previously noted, Mr O’Sullivan disputed the validity of the issues underpinning his dismissal. As such, I will consider each of those issues more closely.

[23] Firstly, Mr O’Sullivan disputed that he was at fault in the March 2014 unsafe driving incident, contending that the other driver was speeding. In short, Mr O’Sullivan disputed Mr Spall’s version of events. Mr Spall’s clear evidence was that other the vehicle had to take evasive action to avoid colliding with the vehicle operated by Mr O’Sullivan. The credibility of Mr Spall’s evidence was not in my view undermined by Mr O’Sullivan’s questions regarding the speed of the other vehicle and its distance from his vehicle. This does not point to the written warning issued to Mr O’Sullivan regarding the incident being inappropriate.

[24] With regard to the spillage incident, Mr O’Sullivan’s acknowledged that he had left his vehicle unattended whilst it was discharging and that he had not used tape to secure the cam locks. This was clearly in breach of the Respondent’s Operating Procedures for Rotary Valve Discharge Trailers. Further, Mr O’Sullivan provided no probative evidence or material to support his contention that the Respondent was partially at fault as a result of its failure to maintain the cam locks. Finally, I note that the competency assessment undertaken by Mr O’Sullivan in May 2015 included an assessment in respect of Rotary Valve Discharge Procedures which included a task observation assessment regarding “Camlocks secured.” 21 Again, the above analysis does not point to the written warning issued to Mr O’Sullivan regarding the incident being inappropriate.

[25] As to the complaint made by a member of the public, as previously noted Mr O’Sullivan contended, among other things, that the complaint had been fabricated, that the photograph provided by the complainant had been photoshopped by the Respondent, and that there was no date and time stamp on the photograph. However, I note that:

● Mr O’Sullivan attested that he was operating a vehicle on the day of the incident leading to the complaint and that the trailer in the photograph was the trailer combination that he was towing that day; and

● Ms Link’s evidence was that in investigating the complaint she had examined the run sheets to determine the position of the Respondent’s vehicles at the time of the photograph.

[26] As to Mr O’Sullivan’s assertion that the photograph had been photoshopped by the Respondent, he again provided no probative evidence to support his assertion. Beyond this, I note that the date stamped version of the photograph tendered by the Respondent 22 is dated “Saturday, 19 December 2015 at 3.57 PM” which is consistent with the file title “20151219_155728(0).jpg”. Contrary to Mr O’Sullivan’s contention that the date stamped version of the photograph does not identify the photograph as having been taken by a mobile phone, it does in fact identify the Device as a “SM-G9251” which is a Samsung Galaxy S6 edge mobile phone23.

[27] More broadly regarding the complaint, Mr McCrone deposed in his witness statement that he considered that Mr O’Sullivan had not been given a fair opportunity to respond to the complaint because there were no specific allegations contained in the complaint relating to the truck Mr O’Sullivan was operating. However, I note that Mr O’Sullivan’s response of 21 January 2016 24 to the show cause letter regarding the incident appears to be have been drafted by Mr McCrone and simply on forwarded to Ms Link by Mr O’Sullivan. Further, the response did make the point that the “lack of any actual allegations makes it very difficult to provide a detailed response.”

[28] Against that background, it was reasonably open to the Respondent to conclude that Mr O’Sullivan was in control of the vehicle involved in the second incident referred to in the complaint.

[29] I note that Mr O’Sullivan did not dispute that he was speeding on 20 October and 14 December 2015.

[30] Finally, I note that no probative evidence was provided to support either Mr O’Sullivan’s or Mr McCrone’s contention that Mr O’Sullivan had been treated differently to other employees who had been speeding or involved in spillages.

[31] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the then AIRC in King v Freshmore (Vic) Pty Ltd (King) 25. In its decision in King the Full Bench, drawing on Justice Moore’s comments in Edwards v Guidice26, stated:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[32] What needs to be determined is firstly whether the alleged conduct took place and, if so, whether it constituted a valid reason for Mr O’Sullivan’s dismissal. Consistent with the decision in King, the threshold issue needs to “be determined by the Commission on the basis of the evidence in the proceedings before it.”

[33] In this case, it is not disputed that the March 2014 unsafe driving incident occurred, what is disputed is whether or not Mr O’Sullivan’s driving was unsafe. Based on Mr Spall’s evidence and for the reasons outlined above I am satisfied that the other vehicle had to take evasive action to avoid a collision as a result of Mr O’Sullivan’s actions. With regard to the spillage incident, Mr O’Sullivan acknowledged that he had left his vehicle unattended whilst it was discharging and that he did not use tape to secure the cam locks, with both of those actions in breach of the Respondent’s Operating Procedures for Rotary Valve Discharge Trailers. Similarly, Mr O’Sullivan did not dispute that he was speeding on 20 October 2015 and again on 14 December 2015. As to the complaint, Mr O’Sullivan considers the incident to have been fabricated by the Respondent. While it is impossible to be certain that Mr O’Sullivan was driving in the manner suggested in the complaint, the material before the Commission points to Mr O’Sullivan being the driver of the vehicle in the photograph submitted by the complainant. Against that background, based on the material before the Commission, I am satisfied that the various instances of Mr O’Sullivan’s conduct relied upon by the Respondent in deciding to terminate his employment did occur.

[34] As to whether there was a valid reason for Mr O’Sullivan’s dismissal, the above analysis supports a finding that there was, particularly when regard is had to the Respondent’s Operating Procedures for Rotary Valve Discharge Trailers, its Human Resources Handbook and the warnings previously issued to Mr O’Sullivan. The various other issues which arose in the course of Mr O’Sullivan’s employment would, if relied upon by the Respondent, reinforce that finding.

[35] Against that background, drawing on the language in Rode, I am satisfied that there was a valid reason for Mr O’Sullivan’s dismissal, that the reasons for the dismissal were defensible or justifiable on an objective analysis of the relevant facts and that the dismissal was not “capricious, fanciful, spiteful or prejudiced.”

(b) Whether the person was notified of that reason

[36] Mr O’Sullivan acknowledged at the hearing that he was notified of the reason for his dismissal, albeit that it he was not notified in great detail 27.

[37] The Respondent submitted that this factor should be considered a neutral consideration as Mr O’Sullivan was issued a show cause notice outlining its concerns on 15 January 2016 and responded on 21 January 2016.

[38] Against that background, I am satisfied that Mr O’Sullivan was notified of the reason for his dismissal.

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

[39] Mr O’Sullivan stated at the hearing that he had been provided an opportunity to respond and that he did so with the assistance of the TWU 28.

[40] The Respondent again submitted that this factor should be considered a neutral consideration as Mr O’Sullivan had been given the opportunity to respond to the show cause notice issued on 15 January 2016 and was also given an opportunity to discuss the speeding issue in the meeting of 12 January 2015.

[41] In circumstances where it is not disputed that Mr O’Sullivan was given the opportunity to respond to the reason for his dismissal, I consider this factor weighs against a finding that his dismissal was harsh, unjust or unreasonable.

(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

[42] At the hearing, Mr O’Sullivan acknowledged that there was not any unreasonable refusal by the Respondent to allow him to have a support person present at any discussions relating to his dismissal 29.

[43] The Respondent submitted that Mr O’Sullivan was allowed a support person throughout the process, adding that Mr O’Sullivan was supported by Mr McCrone of the TWU until the TWU ceased representing him.

[44] Accordingly, I consider this factor to be a neutral consideration.

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

[45] Mr O’Sullivan submitted at the hearing that he had never been warned about that unsatisfactory performance, adding that he had only been warned about the issues that had been canvassed before the Commission 30.

[46] The Respondent submitted that Mr O’Sullivan had been dismissed for performance related issues, adding that there was a history of safety breaches and failure to follow procedures and policies. The Respondent further submitted that Mr O’Sullivan had received written warnings and been involved in verbal counselling regarding his performance and behaviour. Against that background, the Respondent contended that this factor should be considered a neutral consideration.

[47] While I note the Respondent’s submission regarding this factor, the termination letter states “we cannot condone the serious and ongoing breaches of your role which we consider to constitute misconduct” and “The Company has determined that your behaviour is inconsistent with the continuation of your contract of employment” (underlining). In other words, the termination letter points to Mr O’Sullivan having been dismissed as a result of his conduct as opposed to unsatisfactory performance, albeit there may have been some cross over.

[48] Against that background, I consider this factor to be a neutral consideration.

(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

(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

[49] Mr O’Sullivan did not specifically address these factors in his submissions.

[50] The Respondent submitted that it was a medium-sized employer with industrial relations professionals and that the procedures it followed in this case provided Mr O’Sullivan procedural fairness. As such, the Respondent submitted that these factors should be considered neutral considerations in this case.

[51] Based on the material before the Commission, I do not consider that either of these factors impacted on the procedures followed in effecting Mr O’Sullivan’s dismissal. Accordingly, I consider them to be neutral considerations.

(h) Any other matters that FWC considers relevant

[52] Neither party pointed to any other matters which the Commission should take into account. Accordingly, I find that there are no other relevant matters.

Conclusion

[53] Drawing on the above analysis, I find that there was a valid reason for Mr O’Sullivan’s dismissal, that Mr O’Sullivan was notified of that reason and given an opportunity to respond to that reason, and that there are no other relevant matters. Beyond that, I find that the remaining criteria in s.387 of the Act are neutral considerations in this case.

[54] Having considered all of the criteria in s.387 of the Act I find that Mr O’Sullivan’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

P.J. O’Sullivan on his own behalf.

D. Coulton for the Respondent.

Hearing details:

2016.

Melbourne:

July 25.

 1   Outline of Submissions for the Respondent

 2   Exhibit 4 at Attachment EKL-11

 3   Ibid at Attachment EKL-15

 4   Ibid at Attachment EKL-30

 5   Ibid at Attachment EKL-32

 6   Ibid at Attachment EKL-33

 7   Ibid at EKL-34

 8   Exhibit 1

 9   Transcript at PN1324

 10   Exhibits 2, 3 and 5 respectively

 11   Exhibit 4

 12   Exhibit 6

 13   Exhibit 4 at Attachment EKL-16

 14   Print R4471

 15 (1995) 62 IR 371

 16 (2011) 203 IR 18

 17   Exhibit 6 at Attachment TJR-6

 18   Ibid at page 17

 19   Ibid at page 23

 20   Exhibit 4 at Attachment EKL-8 at page 17

 21   Exhibit 3 at Attachment NTC-2

 22   Exhibit 4 at Attachment EKL-34

 23     Exhibit 4 at Attachment EKL-32

 25   Print S4213

 26 (1999) 169 ALR 89 at 92 per Moore J

 27   Transcript at PN1277

 28   Ibid at PN1279

 29   Ibid at PN1281

 30   Ibid at PN1283-1289

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