Paul Hamilton Box v Linfox Australia Pty Ltd

[2022] FWC 2894

[2022] FWC 2894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Paul Hamilton Box
v

Linfox Australia Pty Ltd

(U2022/1819)

COMMISSIONER WILLIAMS PERTH, 2 NOVEMBER 2022

Application for an unfair dismissal remedy

1. This decision concerns an application made by Mr Paul Hamilton Box (Mr Box or the applicant) under section 394 of the Fair Work Act 2009. The respondent is Linfox Australia Pty Ltd (Linfox or the respondent).

1. The termination of employment letter dated 3 February 2022 received by the applicant says that whilst employed by the respondent he had been engaged in secondary employment at another transport company, but he had not sought express written permission to be engaged in this secondary employment. The letter says this was contrary to a clause in his contract of employment and also a clause in the applicable enterprise agreement. This conduct, the letter explained, was the reason for his dismissal.

1. At the hearing of this matter, the applicant gave evidence and called the following witnesses in support: Mr Shaun Skaines, Mr Carl Tito and Mr Lindsay Murray, all of whom are truck drivers employed by the respondent.

1. For the respondent, evidence was given by Mr Gary Pyne, the General Manager – Resources & Industrial West, Mr Andrew Dodds, Senior Operations Supervisor – Resources & Industrial Division, and Mr Alan Battle, the Port Hedland Fuel Supervisor of BHP Group Limited.

Evidence and factual findings

1. The evidence is that the applicant was first employed in 2013. The offer of employment letter from the respondent dated 17 December 2013[1] in the second paragraph refers to the Linfox Road Transport and Distribution Centres National Enterprise Agreement 2011.

1. On page 3 of the offer of employment letter, under the heading “Duties” is the following:

“You must not engage in work for or provide services to any other company, business or individual, except with the consent in writing of Linfox.”

1. Mr Box signed the offer of employment, acknowledging that he had read and understood the letter, on 17 December 2013.

1. Consistent with this contractual obligation at the time of the applicant’s dismissal, the applicable enterprise agreement, the Linfox Road Transport and Distribution Centres National Enterprise Agreement 2018, included clause 70 which reads as follows:

“70. OTHER EMPLOYMENT

70.1 Permanent Employees must not work for another company, person or enterprise while employed by Linfox.

70.2 The only exception is where Linfox has given written permission to the Employee. Such permission will not ordinarily be withheld if Linfox is of the opinion that the other employment will not harm Linfox, or affect the ability of the particular Employee to carry out his/her normal function or duties, or affect Linfox’s workers compensation position or affect any other matters in this Agreement.”

1. When the applicant was first employed in 2013, the applicable agreement was the Linfox Road Transport and Distribution Centres National Enterprise Agreement 2011 which includes an identically worded clause at clause 41, the replacement agreement, the Linfox Road Transport and Distribution Centres National Enterprise Agreement 2014, contained exactly the same provision, but numbered clause 70, and this clause was again included as above in the 2018 agreement.

1. The Commission notes that on 4 March 2022, the Linfox Road Transport and Distribution Centres National Enterprise Agreement 2021 was approved by the Commission which also includes the identically worded clause regarding secondary employment.[2]

1. To summarise, a clause with exactly the same wording regarding secondary employment has been included in the applicable enterprise agreements throughout all of the applicant’s eight years of employment with the respondent.

1. The applicant’s evidence in chief is that he worked as a diesel fuel tank driver based in Port Hedland on the BHP contract.

1. He worked for four days and had three days off each week.

1. He says in early June 2021 he spoke to Mr Battle at the BHP office and explained to him he was thinking of doing work outside Linfox and asked him if this was okay. He told Mr Battle the secondary employment would not be fuel related as that would be a conflict of interest.

1. The applicant says Mr Battle responded by saying this would be okay as long as he followed fatigue guidelines.

1. Mr Battle in his evidence in chief, in response to the applicant’s evidence about this discussion, says that he responded to Mr Box saying he personally did not have a problem with Mr Box working for another employer as long as long as it does not impede his driver fatigue management but BHP is not his employer and as such he needed to speak to Linfox for any approvals around working for someone else.[3]

1. Mr Battle’s evidence in chief was that at no point did he give authority for Mr Box to work for an employer other than Linfox. He did not have the authority to approve this.

1. His evidence was that no one from Linfox management approached him about Mr Box working for another employer.

1. Mr Box in his supplementary witness statement regarding this evidence of Mr Battle states that Mr Battle’s recollection of their conversation around early June 2021 is more or less correct.

1. Mr Battle was not cross-examined and I accept his evidence. To the extent his evidence differs with the evidence of Mr Box, I prefer the evidence of Mr Battle.

1. Mr Box’s evidence in chief was that a week after speaking to Mr Battle he saw Mr Andrew Dodds of Linfox at the depot. He had noticed Mr Skaines seated in the foyer.

1. He says he explained to Mr Dodds he was thinking of obtaining work outside the company that is not fuel-related and mentioned he had already spoken to Mr Battle who was okay with it. He says Mr Dodds’ response was that as long as BHP does not have a problem with this work then he does not have a problem either.

1. Mr Box says he offered to share any running sheets with Mr Dodds to show compliance with fatigue management and recalls Mr Dodds shrugged his shoulders and shook his head.

1. Relevantly, Mr Dodds’ evidence is that Mr Box was rostered to work a maximum of 14 hours per day with Linfox, being 56 per week. This was consistent with BHP’s rule that no employee on a BHP site would work more than 112 hours in a fortnight.

1. In response to Mr Box’s evidence in chief about their discussion, Mr Dodds’ evidence was that at no point in his dealings with Mr Box did he advise him that if BHP does not have a problem with other work that he would not have a problem with it either.

1. Mr Dodds denies in any of his dealings having a conversation regarding the run sheets for the work Mr Box performed elsewhere.

1. His evidence was he had one conversation with him in which Mr Box advised him about a mate that had asked Mr Box to do some work with him. He says he advised Mr Box that his mate needed written permission from Linfox and that was the end of the conversation. He says Mr Box never asked for permission to work for another employer and he never told him that he commenced employment with another employer.

1. Mr Dodds evidence is consistent with an email dated 27 January 2022[4] that he sent to a Mr Calderon, a Linfox Workplace Relations Adviser, who by email had asked Mr Dodds whether he had ever spoken to Mr Box about working at Campbell’s and to detail that conversation, when it occurred and whether there was anybody else present.

1. His evidence was he was not aware Mr Box was working for another company until he received an email from Ms Rebecca Miller, Linfox Senior Operations Supervisor, on 21 January 2022 to this effect.

1. Mr Box in his supplementary statement denies that the conversation he had with Mr Dodds in June 2021 was in reference to a mate of his. He says Mr Dodds never reminded him that written approval from Linfox must be obtained prior to commencing work for another employer.

1. His supplementary witness statement, however, says whilst explaining to Mr Dodds that he was thinking of obtaining work outside the company, he recalls mentioning to him that a mate of his had wanted him to do some work for him. He says Mr Dodds never advised him that his mate would need written approval from Linfox prior to commencing work for another employer.

1. Mr Box then says in his supplementary statement that he recalls in December 2021 he offered to share his running sheets with Mr Dodds but Mr Dodds just shrugged his shoulders and shook his head.

1. Mr Dodds under cross-examination explained that at the time of the relevant events, he reported to the Regional Manager, Mr Greg Harvey. He agreed if there were staff queries about obtaining secondary employment, this would be escalated to Mr Harvey and the driver would need to see Mr Harvey.[5]

1. Under cross-examination regarding the conversation he said he had with Mr Box about a mate of his, Mr Dodds’ evidence was this occurred at Linfox’s Wedgefield site. His evidence was it did not take place in the foyer of the office but rather it occurred out in the yard.[6]

1. He denied this occurred in June 2021 his evidence was it was early 2021.[7]

1. He rejected the proposition that Mr Box was effectively saying he was thinking of doing secondary employment.[8]

1. His evidence was that he did tell Mr Box that his mate would need written permission from Linfox.[9]

1. Mr Dodds denied Mr Box ever offered to show him his run sheets from his employment at Campbell’s.[10]

1. Mr Dodds was unshaken in cross-examination.

1. The evidence in chief of Mr Skaines was that around mid-July 2021, he was sitting in the foyer entrance doing some paperwork at the Linfox depot. He says Mr Box was also present and Mr Box said that he had a conversation with Mr Battle about obtaining work on his days off.

1. Mr Skaines’ evidence in chief is that Mr Dodds walked out to the foyer and he saw Mr Box stop him and he could see both men as they were in the same room about one metre away from him.

1. He says Mr Box asked Mr Dodds whether it was okay if he could pick up extra work. Mr Dodds replied it was okay as long as it had been cleared by Mr Battle.

1. His evidence in chief was that Mr Dodds told Mr Box that is good and reminded him to not go over his 72 hours, take all required breaks and also have some documents showing that he had taken his proper breaks.

1. After their conversation, Mr Dodds walked off and Mr Skaines says Mr Box turn to him to say that was easy.[11]

1. Mr Skaines evidence in cross-examination was that there was initially a door between Mr Box and Mr Dodds and himself and the two men then walked into the foyer and finished the conversation.[12]

1. His evidence was that for part of the conversation he was in the same room with Mr Box and Mr Dodds.[13]

1. Mr Skaines evidence was that he had overheard all of the conversation between Mr Box and Mr Dodds[14] notwithstanding his evidence was that their conversation started in the main office, which a door separates, and they then walked out into the foyer and finished their conversation.[15]

1. Under cross-examination, Mr Box’s evidence regarding Mr Skaines being present was that his handwritten statement dated 2 February 2022 did not mention there was a witness to his conversation with Mr Dodds because he did not think there was one, because he did not know Mr Skaines was in the foyer listening.

1. Mr Box then immediately contradicted himself when he then explained that when he came out, Mr Skaines told him “I heard everything you said.”[16]

1. Later in re-examination, Mr Box repeated his earlier evidence that Mr Skaines was in the foyer. He says he left Mr Skaines in the foyer and went in to speak with Mr Dodds’s. He says he was in the office and that he could not see Mr Skaines behind the wall. He says he did not know whether he was there or not. He did not know whether he had heard the conversation or not. He says he did not know he was there at the time.[17] This is again inconsistent with Mr Box’s earlier evidence that Mr Skaines immediately after the conversation with Mr Dodds said he had overheard it:

“Sure. And how did you become aware he was listening?

Because when I come out, he said, ‘I heard everything you said’. I went, ‘Oh, righto’…”[18]

1. This evidence, if true, means that when Mr Box handwrote his first statement for the respondent on 2 February 2022 and when he made his witness statement on 27 June 2022, he knew that Mr Skaines had overheard the conversation with Mr Dodds but inexplicably did not mention this in either instance. But Mr Box’s own evidence explaining this omission is that he did not know that Mr Skaines was there at the time and had overheard it.

1. This evidence of Mr Box is not only internally inconsistent, it is also inconsistent with Mr Skaines’ evidence. Mr Skaines’ evidence was that all three men, for part of the conversation, were in the same room and they were one metre away from him. Mr Skaines’ evidence was that Mr Box would have seen him when both Mr Box and Mr Dodds continued their conversation in the foyer. Contrary to this, however, the evidence of Mr Box was that he could not see Mr Skaines and he did not know whether Mr Skaines had heard the conversation or not.

1. Having had the opportunity to view Mr Box and Mr Skaines give their evidence and noting their evidence is on the one hand inconsistent as to where the conversation between Mr Box and Mr Dodds took place and how it was that Mr Skaines was able to overhear all of that conversation, but on the other hand surprisingly consistent as to the detail of the conversation between Mr Box and Mr Dodds, my conclusion is that neither Mr Box’s nor Mr Skaines’ evidence is credible regarding these events.

1. The Commission does not accept the evidence of Mr Skaines that he overheard the particular conversation he said he did between Mr Box and Mr Dodds.

1. The Commission does not accept the evidence of Mr Box that as he came out into the foyer, Mr Skaines told him that “I heard everything you said” referring to the conversation with Mr Dodds.[19]

1. In re-examination with respect to the Record Of Interview,[20] Mr Box was referred to his answer to question 26 which was in part “…I did inform Andrew Dodds (verbally) of my intentions to go and work at Campbell’s.” His evidence was that he sought permission from Mr Dodds to work there and his intention was to go to Campbell’s.[21]

1. Mr Box, in his handwritten statement to the respondent on 2 February 2022 and in both witness statements filed with the Commission, does not mention that he told Mr Dodds it was his intention to go to Campbell’s. In addition, the applicant’s witness statement dated 27 June 2022 states at paragraph [15] – [20] that after he had spoken to Mr Dodds, around June or July 2021, he approached MGM Bulk and it was only after having worked there for four shifts that he decided to move to Campbell Transport and commenced there in September 2021. This evidence of the applicant is self-evidently inconsistent with what he told the respondent during the interview and inconsistent with his evidence under re-examination that he told Mr Dodds that he was intending to go to Campbell’s.

1. Under re-examination, Mr Box’s evidence was that he had viewed the enterprise agreements over the years.[22] He became aware of the enterprise agreement when they were negotiating them.

1. He says around the middle of 2021, his understanding of his obligations when seeking secondary employment was that he had to get permission to work outside the company.[23] His evidence was that he spoke to a lawyer who was a friend’s brother and from that understood companies cannot restrict you on your working hours.

1. The evidence is unchallenged that Mr Dodds had no authority to give permission to any employee to accept other employment.

1. The applicant on his own evidence gave no details about possible other employment to Mr Dodds, nor on the applicant’s own evidence did Mr Dodds ask for any details. Mr Box did not tell Mr Dodds what work he might do or where he might work or how many days or how many hours he might work.

1. The applicant also says that he first took up other employment with MGM sometime after he had spoken to Mr Dodds. Then sometime after this, with no further discussion with Mr Dodds, he commenced other employment with a different employer, Campbell Transport. The applicant apparently on his evidence had been given carte blanche permission by Mr Dodds to work for whatever employer he liked whenever he liked and for as many hours as he liked and indeed had permission to change employers whenever he liked as well.

1. The contention that Mr Dodds positively gave his permission to Mr Box to undertake other employment with no information about that other employment is highly improbable.

1. Having seen and listened to the applicant give his evidence, as to any conversation between Mr Box and Mr Dodds regarding other employment, I prefer the evidence of Mr Dodds.

1. Considering all of the evidence, I am not satisfied that on balance of probabilities Mr Dodds in any conversation with Mr Box gave the applicant his permission to take up other employment.

1. Regarding the interview on 26 January 2022, under re-examination, Mr Box said he did not disclose his previous employment with MGM Bulk because when they asked if he was working outside the company at that time he was working at Campbell’s.

1. He says he did four shifts at MGM Bulk.

1. He says he did seven shifts at Campbell Transport from September 2021 to January 2022.[24]

1. Mr Box’s evidence was that during the Linfox training PowerPoint presentation regarding fatigue awareness, he does not recall whether anything was mentioned about secondary employment.

1. He says he does not know who in Linfox is in the Executive Leadership Team nor who you must go to if you want to increase your hours.

1. Returning to the events leading up to the applicant’s dismissal, Mr Box’s evidence in chief is that in mid-January 2022, he was approached by Ms Miller and she asked him if he had been moonlighting.

1. He replied to her, “Not to my knowledge”. She asked him “So you work for another company?”

1. He says he responded “Yeah Alan Battle and Andrew (Dodds) know about it. I got permission from them, I’m not moonlighting.”

1. He told her he had been working for Campbell’s Transport. She asked whether the big bosses knew about it and he answered that he did not know. He says Ms Miller then asked, “Did you get that in writing?”, to which he replied, “No I didn’t, I did not know I had to get it in writing. If I had known that, I would have got it in writing.”

1. On 21 January 2022, he says he was stood down pending an investigation.

1. On 25 January 2022, he was called to a meeting for the following day and was offered the opportunity to have a support person.

1. The next day, 26 January 2022, he attended the meeting with a support person and met with Ms Miller and Mr Dodds. He recalls Ms Miller questioned him on how he got permission from Mr Battle and Mr Dodds. He says he explained that he did not know he had to get written permission and if he had known he would have obtained it.

1. The respondent documented what was said at that meeting in a Record of Interview (ROI).[25]

1. The ROI records the reason for the interview as:

“Investigation into allegations of Paul Box “moonlighting” or working for another company without permission from Linfox to do so.”

1. The applicant was then shown copies of both his contract of employment and the agreement and the respective clauses that state he must not engage in other employment except with the written permission of Linfox.

1. In response to questioning the ROI records, the applicant agreed he had been working outside of Linfox on his days off and had been since September or October 2021.

1. He said he had been working at Campbell’s.

1. He was asked if he considered what BHP might think about this and replied that he had asked BHP permission.

1. When asked if he sought permission or approval, he replied yes. He replied that he sought permission from Mr Battle.

1. He replied that he did not get that permission in writing it was just verbal. He said he did not think he needed it in writing.

1. When asked if he agreed he had breached the terms of the agreement and of his contract of employment, he replied in both instances no, and he explained this was because he sought permission from BHP.

1. The ROI ends as follows:

“Is there anything else you would like to add for Linfox to consider?

I sought permission. It’s not about the money. I’ve only done 6 trips since I’ve been there. Its about the experience. I did inform Andrew Dodds (verbally) of my intentions to go and work at Campbells. I had a discussion with my solicitor, regarding the work hours.

If required – I will get permission, in writing from BHP.”

1. The ROI is signed by Mr Box and his support person and dated 26 January 2022.

1. Mr Box in his supplementary witness statement regarding the interview says that whilst he was shown the relevant clauses in the contract of employment and the agreement and they were read to him, that should not be taken as him being aware of the required nature of approvals to work for another employer:

“My responses were to accept what was stated to me about the terms of the contract of employment and the Agreement. This should not be taken as me being aware of the required nature of approvals to work for another employer. I was aware that I needed approval from Linfox before taking secondary employment, however I did not think I needed it in writing.”

1. Mr Box’s evidence in chief is that in late January 2022, he was handed an investigation outcome letter (show cause letter). He says this stated Linfox’s preliminary view was that there was a basis for the termination of his employment.[26]

1. The applicant says on 3 February 2022, he was called into a meeting with Ms Miller and he attended with his support person Mr Skaines and also with Mr Dawson, the TWU Branch Secretary, by video link.

1. After some discussion there was a break in the meeting and 20 minutes later Ms Miller came back into the room and advised the applicant that his employment with Linfox was terminated.

1. The evidence in chief of Mr Tito is that he has known Mr Box since 2012 and they both worked together at another company. He is presently employed by Linfox as a fuel tanker driver and has been in that role since 2016.

1. His evidence in chief was that around December 2021, the applicant mentioned to him that he had commenced secondary employment and had sought the permission of Mr Battle, BHP Fuel Supervisor, and Mr Dodds, Linfox Senior Operations Supervisor.

1. Mr Tito says in January 2022, he approached Mr Battle and mentioned to him that he was thinking of doing what Mr Box was doing and whether he had a problem with that. He says Mr Battle replied that as long as it does not affect his job with Linfox and he manages his fatigue status, Mr Battle did not have a problem with it.

1. A week later, he approached Ms Miller and told her that he was looking at doing the job that Mr Box was doing and asked her whether that was okay. He recalls she did not react to what he asked her and instead responded that she will check it out and get back to me.

1. A few days later, he found out Mr Box had been stood down due to him undertaking a second job.

1. Mr Battle’s unchallenged evidence, which I accept, in response to Mr Tito’s statement, was that he advised Mr Tito that if he wanted to work for another employer, he did not have a problem with it but that was a matter between him and Linfox. No one from Linfox management approached Mr Battle about Mr Tito working for another employer. Mr Battle says that at no time did he ever say “yes you can” to Mr Tito in relation to working for another employer other than Linfox.

1. The evidence in chief of Mr Murray[27] is that he is presently employed by Linfox as a fuel tank driver and has been since January 2018. He has been on leave since December 2021. He has known the applicant for about four years.

1. Mr Murray recalls that around August 2021, Mr Box mentioned he had spoken to Mr Battle and Mr Dodds about obtaining secondary employment.

1. About 10 days later, Mr Murray asked Mr Battle his thoughts about working for someone else on Mr Murray’s off days. Mr Battle responded, “What do you mean?” and he said to Mr Battle that he was thinking of doing truck driving.

1. Mr Battle responded that as long as Mr Murray was not doing fuel-related work for another company, he was fine with that. Then, he asked Mr Murray what company he was thinking of working for and Mr Murray replied he had not really thought about it. Mr Battle then mentioned that his son worked for Qube.

1. A week later, Mr Murray saw Mr Dodds and told him that he was thinking of taking up side tipping work on his days off and mentioned he had already run it past Mr Battle who was fine with it. He then asked Mr Dodds his thoughts. Mr Murray’s evidence was he recalls Mr Dodds shrugged his shoulder and said “yeah it’s alright” and then proceeded to walk away.

1. Mr Murray’s personal statements provided to the respondent on 2 February 2022[28] says the outcome of his discussion with Mr Dodds was an acknowledgement of his intent from Mr Dodds, with no verbal yes or no, and he was not made aware from the Linfox management perspective that he would need to formally apply in writing to obtain approval to do secondary employment.

1. Mr Battle’s unchallenged evidence, which I accept, in response to Mr Murray’s statement, was that he advised Mr Murray that if he wanted to work for another employer, he did not have a problem with it but that was a matter between him and Linfox. No one from Linfox management approached Mr Battle about Mr Murray working for another employer. And Mr Battle says that at no time did he ever say “yes you can” to Mr Murray in relation to working for another employer other than Linfox.

1. Under cross-examination, Mr Murray said that when Mr Box told him in August 2021 that he had secondary employment, he told him that he was looking at MGM.

1. Mr Murray says that the outcome of the discussion with Mr Dodds was Mr Dodds shrugging his shoulders which Mr Murray assumed was a “yes”.

1. Mr Murray said Mr Dodds did not verbally say it was okay.[29]

1. Under re-examination, Mr Murray said that you do not get a lot of “yes” and “no’s” out of Mr Dodds and when he shrugs his shoulders that is almost like a sign of consent. Mr Murray says that is how he interpreted it at the time. Mr Murray says he may have interpreted it wrong but that was his interpretation.[30]

1. Mr Murray’s evidence was that the best way to describe Mr Dodds was that he was the wrong man for the job. He said you could never get a straight answer out of him.

1. The evidence of Mr Pyne, the General Manager – Resources and Industrial West was that one of the sites Linfox operates from is the Wedgefield site in the Pilbara region in the north of Western Australia, where the applicant was based.

1. Linfox runs a fleet of heavy vehicles that distribute Petroleum Products between Port Hedland and BHP Mine sites throughout the Pilbara.

1. Mr Pyne’s evidence is that heavy transport is a potentially dangerous industry, particularly truck driving, which involves large, heavily loaded trucks sharing public roads with all other vehicles in metropolitan and rural regions.

1. He says the safety culture of the industry (or at least the majority of it) has improved substantially over the last several decades.

1. This has been a response to many things, including enhanced safety regulation and high public expectations. There is a general recognition by most of the industry that anything other than a comprehensive and consistent approach to safety is unacceptable.

1. His evidence was that one of the reasons he took up the position at Linfox is because he believes Linfox has a superior approach to safety.

1. Linfox’s safety systems and culture are driven through its ‘Vision Zero’ strategy.

1. Linfox has a specific goal to attain zero fatalities, zero injuries, zero motor vehicle incidents, zero net environmental emissions and zero tolerance for unsafe behaviour and practices.

1. Mr Pyne provided a copy of the Linfox Safety, Health and Wellbeing Policy relevant to its Vision Zero approach.[31]

1. His evidence is that Linfox reinforces its requirement for employees to adhere to and comply with its Vision ZERO safety strategy when they are inducted into Linfox. All drivers attend Red Book training when they commence with Linfox and are provided a copy of the handbook (Red Book).

1. Mr Pyne says that employees also complete mandatory periodic refresher training in the Red Book. Further, the management of drivers’ fatigue is important and for this reason all employees (management and drivers) attend compulsory fatigue training sessions.

1. The evidence of Mr Dodds, which is not challenged, is that Mr Box last completed his Red Book training in June 2021. He also most recently completed training in fatigue awareness on 9 September 2020.

1. Mr Dodds in his evidence points to page 55 of the fatigue awareness training pack[32] which references approvals to vary and concerns any variation to work outside Linfox work and rest periods. It states that an ELT (executive leadership team) member must approve variation from Linfox work and rest periods and reads as follows.

“Linfox work and rest periods must be applied when scheduling rosters, unless approval is obtained from your BU President to work outside of this. Please note, in some circumstances, Linfox Work and Rest Periods exceed the regulatory requirements for Standard and Basic Fatigue Management Driving Hours

Your BU ELT member, in consultation with the Group Compliance Manager Aus/NZ, must provide approval for variation from Linfox Work and Res Periods, in line with regulatory requirements.”

1. Mr Dodds is not a member of the ELT and does not have authority to approve employees working additional hours for Linfox nor for another company.[33]

1. Mr Pyne’s evidence is that Linfox has a contract to haul fuel for BHP in Newman and Port Hedland at the mine sites located in the Pilbara region.

1. Linfox employees access the BHP sites to undertake this work. All Linfox employees must complete inductions before access is granted by BHP.

1. BHP restricts workers to a maximum of 112 hours of work per fortnight for the purposes of fatigue management. Linfox ensures it complies with this requirement.

1. Mr Pyne was advised in late January 2022 of the investigation into Mr Box.

1. He says he reviewed the responses from Mr Box and Mr Battle from BHP. He also had a conversation with Mr Dodds who denied ever giving permission to Mr Box.

1. Consequently, he advised Mr Harvey, Linfox Pilbara Regional Manager, and Mr Dodds that given the responses provided by Mr Box, he did not obtain written approval from Linfox to work for another company.

1. His evidence was that the requirement to obtain written approval was expressed in his employment contract and the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2018.

1. He determined that Mr Box failed to comply with the company’s policy to obtain written authority to work for another company.

1. He says Mr Box was working outside of Linfox without management’s authorisation or knowledge and this placed Linfox’s operation at risk, in particular the inability to monitor his work and rest time which were in place specifically for the North West Fuels operation.

1. Mr Pyne says that on this basis, he formed the view that Mr Box had not provided a reasonable explanation for his conduct and there was basis to terminate his employment due to the significance of the breach.

1. On 31 January 2022, Mr Box was issued with a show cause letter.

1. Prior to the subsequent show cause meeting, Mr Pyne had formed the view that unless Mr Box was able to provide a reasonable explanation for his misconduct, he could not continue in his employment with Linfox.

1. Mr Pyne’s view was that Mr Box had worked elsewhere without Linfox’s knowledge. As such, management in Port Hedland were unaware of the additional hours he worked as a heavy vehicle driver.

1. Mr Box was aware that his roster requiring him to work 4 days on and 3 days rest was to be strictly followed. Linfox does not allow employees to work on their rest days when working for BHP or for that matter other customers within its remit.

1. Any request to undertake other employment is always escalated to Mr Pyne.

1. His evidence is that he has had one request in his time at Linfox, since October 2019, for an employee to work casually elsewhere. This was not approved.

1. Ultimately, the show cause meeting was held on 3 February 2022. Mr Pyne did not participate in the show cause meeting as he was in Perth. However, after Ms Miller and Ms D’Lima, Human Resources Advisor, had discussed the company’s show cause letter with Mr Box, they spoke to Mr Pyne and briefed him on Mr Box’s explanations.

1. They advised him that Mr Box maintained that Mr Dodds approved for him to work for another employer and BHP had authorised him to work for another employer.

1. Mr Pyne found this to be extremely unlikely and based on the material collected throughout the investigation, the explanation provided by Mr Box was not compelling enough to alter the preliminary decision to terminate his employment. Consequently, Mr Pyne informed Ms D’Lima and Ms Miller to proceed to advise Mr Box that his employment was terminated.

1. The termination letter dated 3 February 2022 was then provided to Mr Box.[34]

1. Mr Box was terminated with five weeks’ notice and all outstanding entitlements were paid.

Submissions

The applicant

1. The TWU on behalf of the applicant recognised that the applicant’s contract of employment and the applicable agreement both include provisions that state an employee must not work for another company except with written permission from Linfox.

1. The TWU submits that the applicant had sought permission to engage in secondary employment from Linfox through Mr Dodds, although he did this verbally. In doing that, the applicant sought to comply with the Linfox’s policy. As well, the applicant mentioned to Mr Dodds on at least one other occasion that he was engaged in secondary employment.

1. It is submitted that once the applicant had raised the matter of secondary employment with Mr Dodds, the onus was on Mr Dodds to remind the applicant that the request for secondary employment had to be made in writing. Mr Dodds did not do that. The inference that follows from this, is, that in practice, the need for requests regarding secondary employment to be made in writing was not something that Linfox considered to be important.

1. Alternatively, the TWU submits that as Mr Dodds had given the applicant verbal approval to seek secondary employment, and further, he was reminded by the applicant later on that he had secondary employment and did not respond to that, Linfox, through Mr Dodds, waived the requirement for the applicant to obtain written permission for secondary employment. Accordingly, Linfox cannot now use the failure by the applicant to obtain written permission to engage in secondary employment as a basis for the termination of his employment.

1. In the circumstances, to the extent that the applicant’s actions did amount to a breach, the TWU submits that it was not substantial or wilful as he did attempt to comply with the policy.

1. There is no basis, according to the TWU, for the statement by Linfox in the termination letter that the applicant’s actions amounted to a consistent pattern of behaviour that evidenced a repeated disregard for and refusal to comply with Linfox’s policies and procedures. The applicant did attempt to comply with the policies and procedures by approaching Mr Dodds, and also Mr Battle, to seek permission to undertake secondary employment before he engaged in that secondary employment.

1. Further, the applicant offered to address the respondent’s concerns by obtaining written permission.

1. The applicant denies that answers which he provided to the respondent during the interview on 26 January 2022 were dishonest and/or were intended to mislead, as alleged by the respondent. Further, Linfox has not provided any information or evidence to support those claims.

1. The TWU submits that the applicant acted reasonably by obtaining verbal permission to engage in secondary employment from Mr Dodds. Accordingly, there was no valid reason for the applicant’s dismissal.

1. If the Commission finds that the respondent had a valid reason for the dismissal of the applicant, then the dismissal of the applicant, on balance, was harsh, unjust and unreasonable.

1. Similarly, the respondent’s decision to dismiss the Applicant, on the grounds stated in the termination letter, was disproportionate to the gravity of the misconduct. Taking into account the fact that the applicant had sought Mr Dodds’ permission to engage in secondary employment, albeit verbally, the more appropriate disciplinary outcome in this would have been to issue a warning to the applicant.

1. Linfox, according to the TWU, did not go to any length to alert employees of the policy that if they wanted to engage in secondary employment, they had to obtain written permission of the company, and/or warn them that a breach of this policy would lead to a dismissal.

1. When the applicant worked for MGM, and for Campbell Transport, the work was not in competition with work done by the respondent. Further, that work was infrequent – a total of 11shifts over a period of about 26 weeks – and did not affect his ability to carry out his duties for Linfox.

1. The applicant was employed for over eight years before his dismissal. The applicant did not have any prior disciplinary matters or warnings.

1. The applicant ensured that when working in secondary employment, he was compliant with the ‘fatigue rules’ under regulation 3.132(2)(a) of the Occupational Safety and Health Regulations 1996 (WA), now regulation 184E(2)(a) of the Work Health and Safety (General) Regulations 2022 (WA).

1. Having regard for the matters as outlined above, the TWU submits that the respondent’s dismissal of the applicant was harsh, unjust and unreasonable.

The respondent

1. Linfox submits that it places great importance on its employees working safely as outlined in the Health and Safety Policy and the agreement.

1. One of the fundamental reasons for clause 70 of the 2018 agreement and similar wording in the contract of employment is to minimise driver fatigue.

1. Driver fatigue is one of many, if not the principal, cause of incidents in the heavy transport industry. Incidents that may occur while transporting dangerous goods can have catastrophic impacts to employees, members of the public, equipment and the environment.

1. Due to the nature of the dangerous goods being transported and fatigue being a risk to the safe operation of the company’s activities, Linfox does not allow permanent transport employees to engage in secondary employment without informed and written consent.

1. Safety is of paramount importance to Linfox. Even if a driver is wishing to engage in secondary employment, this is not something that is considered lightly and requires authority at a senior level for this to be accepted.

1. Keeping track of driver fatigue by monitoring their work and rest periods lowers risks of incidents occurring, lowers the company’s public liability risk and lowers risks for workers’ compensation.

1. Linfox must have sufficient trust and confidence with its employees that are transporting dangerous goods that they are not engaging in secondary employment.

1. Employees engaged on the 4 days on 3 days off roster are working 56 hours in a week. Linfox submits that managing driver fatigue is both lawful and reasonable as well as responsible of Linfox as an employer.

1. All drivers, including Mr Box, attend Fatigue Awareness training.

1. It was evident to Linfox from the interview with him that Mr Box had not sought either verbal or written permission to engage in other employment. Furthermore, the proposition that Linfox had provided tacit approval for Mr Box to engage in other employment is entirely disputed.

1. Linfox, after consideration of all the material before it, formed a preliminary view that there was a valid reason to terminate Mr Box’s employment.

1. Linfox submits that following a show cause process and Mr Box providing nothing new for the company to consider, Linfox came to the view that he had not complied with his conditions of employment. He was working outside of Linfox without management’s authorisation or knowledge which placed their operations at risk and which meant Linfox was unable to monitor his work and rest time as they must to manage the risk.

1. Consequently, the decision was made to terminate Mr Box’s employment with notice.

1. It is submitted for Linfox that the evidence is that Mr Box obtained secondary employment contrary to his contract of employment and the agreement. These conditions of employment are specifically in place to ameliorate the risks of fatigue associated with the heavy transport industry and the transportation of dangerous goods.

1. It is the evidence of Linfox’s witnesses that at no point was there any form of approval from the company, either implied and certainly not in writing as required.

1. Mr Box’s behaviour constituted misconduct sufficient to warrant termination with notice.

1. It is submitted that the act of not seeking written approval to engage in secondary employment in a highly regimented and dangerous industry is not only repugnant to the employment relationship, but also anathema to Linfox’s safety focus.

1. Linfox has promulgated policies in the workplace concerning professional and safe driving practices and Mr Box was inducted in relation to these policies.

1. Linfox submits that the applicant’s actions constituted a clear breach of the extensive safety training provided to him and a clear breach of the conditions of his employment.

1. The Full Bench of the Commission has outlined the principles applicable when considering what constitutes a valid reason in Sydney Trains v Gary Hilder [2020] FWCFB 1373 at [26] (Sydney Trains):

1. In reference to the principles as outlined in Sydney Trains, Linfox submits the following:

• The reason for termination was valid. It was also sound, defensible and well reasoned when taking into consideration all matters outlined in the above submissions.

• The evidence is Mr Box’s own admissions that he obtained secondary driving employment and that no approval in writing from Linfox was obtained.

• The conduct has occurred and in all circumstances justified termination of employment. This is a matter that relates to safety of employees, those around them and to Linfox equipment as well as the environment.

• In the circumstances, with its public liability and the welfare of its employees to consider, Linfox was justified in terminating Mr Box’s employment.

1. Linfox submits that the evidence demonstrates that the dismissal of Mr Box was procedurally fair and satisfies the expectations of section 387 of the Act.

1. Addressing arguments put on behalf of the applicant, Linfox submits that Mr Box’s conduct was sufficiently serious to warrant his dismissal. This is so because the potential and actual consequences of Linfox not minimising its risk related to fatigue in the transport industry and particularly of dangerous goods cannot be overstated, as they can be catastrophic and lead to serious injury or fatality.

1. It is submitted that in this case there had been no tacit approval from Linfox for Mr Box to act in the way he did.

1. Linfox was not aware of Mr Box’s secondary employment. When it did become aware, the matter was investigated. It cannot be demonstrated that Linfox provided tacit or implied approval for secondary employment.

1. The applicant’s submissions erroneously assert that Linfox did not go to any length to alert employees of the requirement to obtain written permission if they wanted to engage in secondary employment.

1. Linfox submits this is not the case in this matter. Mr Box signed an employment contract which explicitly stated this requirement. Furthermore, Mr Box was also aware of this requirement under the three enterprise agreements he was covered by during his employment, the 2011, 2014 and 2018 agreements.

1. Linfox submits that Mr Box’s conduct was unacceptable and constituted a valid reason for his dismissal.

1. The dismissal was neither harsh, nor unjust, nor unreasonable and this application should therefore, according to Linfox, be dismissed.

The legislation

1. Section 387 prescribes matters the Commission must have regard for in determining whether the dismissal of the applicant was harsh, unjust or unreasonable:

“387      Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the 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 the FWC considers relevant.”

Consideration

Valid reason

1. The applicant’s contract of employment, which he signed to confirm he had read and understood it, says:

“You must not engage in work for or provide services to any other company, business or individual, except with the consent in writing of Linfox.”

1. The three agreements applicable to the Applicant over the period of his employment all included the following clause:

“Permanent Employees must not work for another company, person or enterprise while employed by Linfox.

The only exception is where Linfox has given written permission to the Employee.
…”

1. There is no dispute that Mr Box whilst he was employed by Linfox undertook other employment with two other employers, and he did this without Linfox’s written permission.

1. Mr Box says, and it is submitted in mitigation on his behalf, that he did not know he was required to obtain Linfox’s written permission. However, even if this is accepted to be the case, in other matters before the Commission it has been held that conduct having an effect on the safety and welfare of other employees need not be wilful or intentional to be conduct the Commission under s.387 must take into account:

“the Act requires the Commission to have regard to “whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees)”. It appears to me that the kind of conduct exhibited by the Applicant is the kind of conduct that is intended to be captured by the Act. That is, the kind of conduct that is relevant need not only be wilful, malicious or intentional conduct, but conduct that can imperil or put other employees in the workplace in jeopardy.”[35]

1. The prohibition on employees undertaking other employment without written consent from Linfox included in the contract and in the agreement is a simple unambiguous statement of each employee’s obligation.

1. Mr Box’s conduct was a breach of his contract of employment and of clause 70 of the agreement.

1. Mr Box at the time never advised Linfox of the extent of his other employment. Consequently, the additional hours he was working were not allowed for in the work and rest periods Linfox scheduled for him.

1. Not advising Linfox how much he was working in his other employment was a breach of Linfox’s fatigue management rules in which he had been trained, and this put at risk the safety of other employees. This was a serious safety breach by Mr Box.

1. A Full Bench of the Commission in Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 1166 made the following statement recognising the importance of enforcing safety rules in the workplace:

“[18] In our view this case raises important questions about the respective rights and obligations of employers and employees in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

[19] In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so can send a message to the workforce that safety breaches can occur with impunity.” 

1. Mr Box’s conduct in undertaking other employment without Linfox’s written permission breached his contract and the agreement and ignored his employer’s fatigue management rules. This conduct was definitely not minor or inconsequential; it was serious and the Commission consequently finds this conduct was a valid reason for Mr Box’s dismissal.

Notification of the reason

1. In the show cause letter that Mr Box was provided, he was notified of the reasons Linfox was considering dismissing him and this occurred before the respondent had made its final decision.

Opportunity to respond

1. Mr Box, following receipt of the show cause letter, did have an opportunity to respond to the reasons that Linfox was considering dismissing him for and he did so at the final meeting.

Refusal of support person

1. At meetings to discuss Mr Box’s possible dismissal, he was accompanied by a support person.

Warnings of unsatisfactory performance

1. The reason for the applicant’s dismissal was not related to unsatisfactory performance so the issue of warnings is not relevant.

Size of the enterprise and absence of HR specialists

1. The respondent is a large enterprise and does have in-house specialist human resource management expertise. The procedures followed in effecting the applicant’s dismissal were consequently appropriate.

Other relevant matters

1. Mr Box was employed for approximately 8 years.

1. Mr Box says he did not know he was obliged to obtain written permission before undertaking other employment.

1. The applicant’s evidence is however that he obtained some informal legal advice as to whether or not an employer could restrict his hours and whether he was allowed to find extra work.[36] From this, coupled with the fact Mr Box spoke to Mr Battle about the issue, the Commission infers that the applicant had some appreciation that he may not be entirely free to work elsewhere.

1. Mr Box though apparently had not sought advice from his union about working elsewhere nor did he directly ask Linfox what the rules about other employment were. He also apparently did not review his contract or the agreement.

1. An employer with a policy that it may unilaterally change from time to time is naturally required to take steps to ensure employees are aware of any new or changed requirements which their employees will be held to.

1. In this case, the obligation on Mr Box to obtain written permission before undertaking other employment was not a company policy that could be unilaterally changed by Linfox. Rather, the obligation was a clause of the applicant’s contract of employment and separately a provision in the agreement that a majority of the employees who had voted supported.

1. When he was employed, Mr Box signed his contract of employment as having read and understood it.

1. During Mr Box’s employment, he would have been entitled to vote on a replacement agreement on two sperate occasions, in 2014 and again in 2018. The Act requires that on each of these occasions Mr Box would have been given a copy of the text of the new agreement.[37]

1. The responsibility was on Mr Box to ensure he was aware of his obligations, both under his contract of employment and under the agreement.

1. There is no reason in these circumstances for the Commission to accept that this responsibility was somehow shifted to Linfox who then had an unwritten obligation to remind Mr Box, assumedly repeatedly in case he ever thought of undertaking other employment, that he was obliged to obtain written permission before accepting other employment.

1. Both employees and employers have duties regarding safety under legislation. Section 20 of the Occupational Safety and Health Act 1984 (WA) imposes a duty on employees to ensure their own safety at work and to avoid adversely affecting the safety of other persons through any act or omission at work. This legislation provides that an employee contravenes this if they fail to comply, so far as they are reasonably able, with instructions given by their employer for the safety or health of the employee or for the safety or health of other persons.

1. For the Commission to accept the respondent had an obligation to remind Mr Box of the term of his contract and the provision of the agreement is also akin to rewriting both the contract and the agreement. 

1. Whilst the Commission accepts that Linfox could, but did not, waive the requirement in the applicant’s contract of employment to have received written permission before taking up other employment, there is no such capacity for Linfox to waive the same requirement in the agreement.

1. Mr Box’s failure to comply with his obligations was his failure alone.

1. The fact that Linfox has seen fit to include the prohibition on other employment without written permission in the various iterations of the agreement for many years underscores the concern about this issue from the respondent’s perspective in this industry.

1. The Commission accepts that the inclusion of this express obligation on employees in both the agreement and the contract is an important initiative taken by Linfox designed to assist Linfox manage the hazard of driver fatigue and is part of the safety regime Linfox has in place so that it may meet its legal obligations to ensure, as much as is possible, that its drivers operate safely.

1. The respondent was unaware Mr Box was working elsewhere. Linfox did not know where he was working, what work he was doing, how many days nor hours he was working, all of which is information it could have asked him for if he had requested permission in writing to work elsewhere. With this information Linfox could have then made an informed decision as to whether written permission would be provided or not considering the issues set out in clause 70.2 of the agreement as Linfox is obliged to. This approach is what both the clause in Mr Box’s contract and the provision in the agreement enable.

1. Failing to comply with this obligation was not a minor failing by the applicant. The applicant failed to comply with an important safety requirement.

1. The fact Mr Box had only worked a limited number of shifts elsewhere ignores the reality that if Linfox had not become aware he was engaged in the other employment, he could have continued working whatever additional hours he wished indefinitely.

1. It is not for the Commission to stand in the shoes of the respondent, particularly so in a case where the circumstances involve the respondent’s legislated duty regarding workplace safety.

1. Finally, the Commission notes Mr Box was not entirely forthright about his other employment in the interview with the respondent on 26 January 2022 nor at the show cause meeting. Mr Box during the investigation did not tell Linfox he had worked for MGM. Also, his evidence at hearing was that he had worked 11 shifts for the two other employers but during the interview he told Linfox just that “I’ve only done 6 trips..” at Campbell’s.

Conclusion

1. Considering all the circumstances of this case, the Commission does not accept that the dismissal of Mr Box was either, harsh, unjust or unreasonable.

1. Mr Box was not unfairly dismissed.

1. An order to that effect will be issued in conjunction with this decision.

Appearances:

L Slaney of the TWU for the applicant.
G Katsifolis for the respondent.

Hearing details:

2022.
Perth:
5 September.

Final written submissions:

Applicant, 16 August 2022.
Respondent, 25 July 2022.

[1] Witness Statement of Gary Pyne, attachment GP-3.

[2] [2022] FWCA 765.

[3] Witness Statement of Alan Battle, [18].

[4] Witness Statement of Andrew Dodds, attachment AD-7.

[5] Transcript, PN 967.

[6] Transcript, PN 1020.

[7] Transcript, PN 1025.

[8] Transcript, PN 1031–7.

[9] Transcript, PN 1038–9.

[10] Transcript, PN 1048.

[11] Witness Statement of Shaun Skaines, [11] – [18].

[12] Transcript, PN 693.

[13] Transcript, PN 695.

[14] Transcript, PN 698–703.

[15] Transcript, PN 692–3.

[16] Transcript, PN 487–8.

[17] Transcript, PN 629–32.

[18] Transcript, PN 488.

[19] Transcript, PN 488.

[20] Witness Statement of Andrew Dodds, attachment AD-6.

[21] Transcript, PN 639–42.

[22] Transcript, PN 551.

[23] Transcript, PN 556.

[24] Transcript, PN 600.

[25] Witness Statement of Andrew Dodds, attachment AD-6.

[26] Witness Statement of Gary Pyne, attachment G4-3.

[27] Exhibit A5.

[28] Witness Statement of Lindsay Murray, attachment LM-1.

[29] Transcript, PN 800–1.

[30] Transcript, PN 817.

[31] Witness Statement of Gary Pyne, attachment GP-1.

[32] Witness Statement of Andrew Dodds, attachment AD-3.

[33] Witness Statement of Andrew Dodds, [17] – [22].

[34] Witness Statement of Gary Pyne, attachment GP-5.

[35] Gottwald v Downer EDI Rail Pty Ltd[2007] AIRC 969 (Richards SDP, 30 November 2007) [102].

[36] Supplementary Witness Statement of Paul Box, [6].

[37] Fair Work Act 2009 (Cth) s.180(1).

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