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

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).

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.

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.

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

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.

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.”

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

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.”

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Paul Hamilton Box v Linfox Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 2894
Decision Date: 2 NOVEMBER 2022

CaseChat Overview and Summary

This case involves an application by Mr Paul Hamilton Box for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The respondent is Linfox Australia Pty Ltd. The applicant, Mr Box, was employed by the respondent from 2013 and was dismissed in February 2022 for engaging in secondary employment without obtaining the necessary written permission from Linfox. The applicant argues that his dismissal was unfair, claiming that he had sought permission for his secondary employment from two Linfox employees, Mr Battle and Mr Dodds. Linfox contends that the dismissal was fair, as the applicant's conduct constituted a serious breach of company policy and safety regulations, and that there was no tacit approval for the secondary employment.

The Commission found that the applicant's evidence was not credible regarding his conversations with Mr Dodds about secondary employment. The Commission accepted Mr Dodds' evidence that he did not give the applicant permission to undertake other employment and that the applicant never asked for permission to do so. The Commission concluded that the dismissal was not harsh, unjust, or unreasonable, as the applicant's conduct constituted a valid reason for dismissal related to his capacity or conduct, specifically his failure to obtain written permission for secondary employment. The Commission found that the dismissal was procedurally fair and that Linfox had a valid reason to terminate the applicant's employment due to the safety risks associated with driver fatigue and the transportation of dangerous goods. The application for an unfair dismissal remedy was dismissed.

Orders