Phillip Genio v Woolworths Limited
[2012] FWA 6678
•15 AUGUST 2012
[2012] FWA 6678 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Phillip Genio
v
Woolworths Limited
(U2012/5718)
COMMISSIONER GOOLEY | MELBOURNE, 15 AUGUST 2012 |
Application for unfair dismissal remedy.
[1] Mr Phillip Genio (the Applicant) was employed by Woolworths Limited (the Respondent) from 18 September 2002 until his employment was terminated on 29 February 2012.
[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that he was unfairly dismissed.
[3] Mr Garry Dircks was given permission to appear for the Applicant and Mr Luke Connolly was given permission to appear for the Respondent.
Background
[4] The Applicant was employed by the Respondent as a truck driver. On 14 February 2012, while driving along the Monash Freeway, the Applicant moved his truck without warning into the adjoining lane, colliding with a car in that lane and pushing it over to the barriers in the middle of the freeway. The car then bounced off the steel barriers before ending up in the middle of the freeway. 1
[5] The Applicant was not aware of the accident until he was pulled over by a driver who told him about the accident. He immediately advised the Respondent. 2
[6] A meeting was held on 16 February 2012 with the Applicant to discuss the accident. 3 The Applicant’s employment was suspended at that meeting.4 A further meeting was held on 29 February 2012 to discuss the accident. At that meeting the Applicant was advised that his employment would be terminated.5
[7] On 2 March 2012 a letter of termination was provided to the Applicant. It advised that the Applicant’s employment had been terminated due to a breach of the final warning issued to him on 2 December 2011. 6
[8] The Respondent had formed the view that the accident occurred because the Applicant was tailgating the car in front of him and therefore had insufficient distance to allow him to react when the driver of the car in front of him applied his or her brakes. The Respondent also concluded that the Applicant should have assessed the situation after he moved suddenly into the adjoining lane and been aware that there had been a collision. 7
[9] The Respondent had regard to previous warnings issued to the Applicant since 2006 and to previous complaints it had received about the Applicant from members of the public. It also had regard to the letter of warning provided to the Applicant on 2 December 2011 and concluded that his “actions amount[ed] to a serious breach of the terms and conditions of [his] final warning and as such, constitute[d] misconduct justifying termination of [his] employment effective today.” 8
[10] On 2 December 2011 the Applicant had received a written warning in which he was advised that the Respondent would “no longer tolerate in any way any breach of [his] obligations and failure to comply [would] jeopardise [his] ongoing employment with the Company.” 9
The accident
[11] In his witness statement, the Applicant said that he was driving in the left hand lane of the freeway when a car overtook him and cut in front of him without indicating. He “immediately took evasive action by touching [his] brakes and checking [his] right hand mirror to ensure that the lane immediately to [his] right was clear.” While he was doing this the driver of car in front of him slammed on his or her brakes so [he] immediately moved into the right hand lane to avoid a collision. 10 That car then exited the freeway. The Applicant did not notice that he had hit another car.
[12] On 15 February 2012, the Applicant was interviewed about the accident by Mr Phil Carter, the Respondent’s Health and Safety Officer, who prepared a statement for the Applicant and gave him a copy to read. The Applicant said he did not read it at the time and that it was not an accurate record of what he said to Mr Carter. That statement made no reference to the car cutting in front of the Applicant.
[13] Mr Carter said he assisted the Applicant with this statement because the Applicant had difficulty expressing himself. In that interview Mr Carter said that the Applicant only referred to the car in front of him braking suddenly and that he had to swerve to avoid hitting the car. Mr Carter asked him if he had checked his mirrors and the Applicant told him he had done so before he moved into the adjoining lane but had not done so after he had moved. Mr Carter was “surprised that [the Applicant] had not re-checked his mirrors after swerving.” 11
[14] Mr Carter said he typed up what the Applicant had told him and a copy was given to the Applicant by someone else. It was not put to Mr Carter in cross examination that the record of interview was not accurate.
[15] At the meeting on 16 February 2012 Ms Jannifer Kerr, the Respondent’s Human Resources Manager, referred to this statement and told the Applicant that she wanted further clarification. Ms Kerr took notes of the meeting and they were tendered as evidence.
[16] The Applicant told her that he had swerved to change lanes as the car in front of [him] braked suddenly and then exited the freeway. 12 He told Ms Kerr that he did not know that he had hit another vehicle. The Applicant did not tell Ms Kerr that the statement prepared by Mr Carter was inaccurate.
[17] Ms Kerr said that the Applicant said that he was two car lengths behind the car in front of him. Mr Kevin Wallace, the Transport Workers Union delegate, was at the meeting and he did not recall the Applicant making any admissions about any distance. Mr Gavin Keelty, the Respondent’s Site Fleet Manager, was at the meeting and he agreed that the Applicant said the car was two car lengths or more in front of him. 13 This is reflected in his notes of the meeting.14
[18] The Applicant denied that he had ever said that he was two car lengths behind the car. 15
[19] In examination in chief the Applicant said that as he approached the Blackburn Road overpass there was a lane to his left which was coming to an end. He said a car moved in front of him at this point and stayed in front of him until just before the Ferntree Gully exit when the driver slammed on his brakes. The Applicant said he was a safe distance behind the car until the driver slammed on his brakes. 16 The Applicant said that it was only a few seconds after the car came in front of him that the driver hit the brakes.17
[20] Despite saying in his own witness statement that the driver of the car had cut him off, the Applicant in cross examination, denied that the driver of the car had cut him off. 18
[21] Ms Shabi Curry, the driver of the car hit by the Applicant, was driving behind the Applicant for about 10 -15 minutes. She did not see any car overtake the Applicant. 19
[22] Given the nature of the accident she also did not accept that the Applicant did not know he had hit her car “given the noise and damage done and the scene that was going on behind him and which would have been visible in his rear view mirrors.” 20
[23] The Applicant denied knowing he had caused an accident. It was his evidence that he looked in his left hand mirror to see what the car that had braked in front of him was doing 21 and he did not look in his right hand mirror. He also suggested that he probably would not have seen the car he had hit any way as there was a sweep in the road.22
[24] Mr Carter inspected the truck immediately after the accident. It was his evidence that “there were three obvious points that the car had collided with the trailer.” 23 Having viewed the truck Mr Carter could not understand how the Applicant did not feel the impact of the collision.24
[25] The police report into the accident was tendered without objection. That report included a note as follows “No Further Police Action - The independent witness to this matter has stated that an unknown vehicle has cut the truck off and to avoid colliding with this vehicle the truck driver has had to brake heavily and take evasive action. In doing this the trailer of the truck has collided with vehicle “xxx” which was travelling in the lane to the trucks right. I recommend no further police action in this matter due to the above factors.” 25
The December 2011 warning
[26] The Applicant had received a letter of warning on 2 December 2011 as a result of a complaint about his driving made by Mr Keir Dernelley. Mr Dernelley had complained to the Respondent of the “dangerous and reckless conduct of one of [their] truck drivers.” 26 Mr Paul Nelson, the Fleet Site Manager, spoke to Mr Dernelley who complained that a “Woolworths truck tailgated his car along CityLink from the Bolte Bridge to the Burnley Tunnel.”27 Mr Nelson said that Mr Dernelley also complained that when he tried to move into the left hand lane the truck cut him off.”28
[27] The truck was driven by the Applicant. 29
[28] On 30 November 2011 Mr Nelson and Mr Taylor, the Fleet Manager, met the Applicant to discuss this complaint. The Applicant denied doing anything wrong. The Applicant was suspended pending an inquiry. The Applicant was asked to “consider his situation and write a letter to Woolworths showing a willingness to comply with his obligations as an employee.” 30
[29] A further meeting was held on 2 December 2011 and Mr Wallace attended the meeting with the Applicant. In addition to Mr Taylor and Mr Nelson, Ms Kerr attended the meeting. The Applicant provided a letter but that letter, according to Mr Nelson, did not satisfy them that the Applicant understood that his behaviour had been wrong. 31 At that meeting Ms Kerr gave the Applicant a document which set out the history of his performance management and complaints.32
[30] Mr Wallace told the Respondent at the meeting that he had visited the Applicant at his home and told him that he would not support him if he “messed up again.” 33 Mr Wallace told the Respondent’s representatives that the Applicant would change. The Applicant told the meeting that there would “be no more bullshit or complaints from the public.”34
[31] In his witness statement the Applicant did not address this warning other than to say that he objected to the complaints from members of the public being relied upon by the company. He said he objected at the time of each and every complaint. 35
[32] The Applicant at the hearing denied tailgating Mr Dernelley and denied cutting him off.
[33] Mr Dernelley gave evidence about this incident. 36 He was driving on the CityLink freeway along the Bolte Bridge towards the city at approximately 100kms per hour. He had his two young children in the car. He was in the far right lane as he wanted to take the exit to the Westgate Bridge to go to the western suburbs.37
[34] He checked his mirrors and saw a truck driving very close to him. He could see the truck logo in his mirror. He said the truck was only a couple of metres behind him. He said the truck tailgated him for about a minute and, once he was able, he changed lanes to get away from the truck. As the truck passed him he saw it was a Woolworths truck. The truck then changed lanes in front of him and he then moved back to the right hand lane. He observed the truck tailgating another car. 38
[35] In examination in chief Mr Dernelley clarified that it had been the Volvo logo that he could see in his rear vision mirror. 39
[36] In cross examination Mr Dernelley gave evidence that the incident occurred on the freeway leading up to the Bolte Bridge and not as he described in his witness statement. 40
[37] Further in cross examination Mr Dernelley said that the truck was so close to him that he could not slow down because he thought it would cause a collision. 41
[38] Mr Taylor gave evidence that he considered terminating the Applicant’s employment at the time of this incident but he took account of Mr Wallace’s statement as well as the Applicant’s personal situation and decided to issue the Applicant with a final warning. 42
[39] The Applicant was advised that the final warning he was given was an alternative to the termination of his employment. In that letter of warning reference was made to written warnings given to the Applicant on 20 January 2010 and 30 June 2011 as well as a discussion with the Applicant on 24 August 2011 where the Applicant was reminded of the Respondent’s expectations. 43
[40] While Mr Taylor said that Mr Wallace handed back the letter of warning given to the Applicant on this occasion 44 Mr Wallace denied doing so.45 However Mr Wallace did say he disputed the warning for the Bolte Bridge incident.46 This evidence was inconsistent with his statement in the meeting that he had warned the Applicant about his conduct.
[41] There was no record of the Applicant lodging a grievance about that letter of warning.
Other incidents
[42] Evidence was given about a number of other warnings given to the Applicant throughout his employment. I do not intend to detail all the evidence about these incidents. While the Applicant only acknowledged one warning given on 4 October 2007 that document sets out a series of incidents involving the Applicant commencing on 6 October 2006 and culminating in a first and final written warning dated 4 October 2007 which said as follows:
“You have shown a blatant disregard for Company policy and rules and have not shown any attempt to improve your behaviour to comply with the Workplace Standard. You are hereby advised that any further breach/s of the Workplace Standards will result in the termination of your employment. This warning will remain for (sic) place for a period of 12 months.” 47
[43] Further complaints were received after this date but again I do not intend detailing the evidence about these complaints. For the purpose of this decision it is not necessary for me to make findings in relation to each and every complaint received about the Applicant.
[44] The warnings referred to in the 2 December 2011 letter were not for unsafe driving.
Submissions of the Applicant
[45] It was submitted that the incident on 14 February 2012 was an unfortunate accident. It was submitted that it could not be concluded that the Applicant had been tailgating the car in front. It was submitted that the car in front of the Applicant did something unexpected which caused the Applicant to swerve to avoid a potential collision. It was submitted that this was corroborated by the independent witness referred to in the police report. 48
[46] It was further submitted that there was a dispute about safe driving practices. It was submitted that just because the Applicant had to swerve to avoid an accident does not support the conclusion that he was tailgating. 49
[47] It was submitted that the termination was unfair because other drivers of the Respondent who have been involved in accidents have not been dismissed 50, yet the Applicant’s employment was summarily terminated.51
[48] It was submitted that the Applicant’s conduct was not serious misconduct and therefore the failure to pay him notice made the dismissal unfair. 52 It was said that misconduct involves something more than mere negligence, error of judgement or innocent mistake.53 The mere fact that there had been a collision does not warrant a finding of misconduct.54
[49] It was submitted that the Applicant had not had a similar road accident in 35 years as a truck driver and it was submitted that the evidence did not support a finding that the Applicant was reckless. 55 It was submitted that there was no breach of the Workplace Standard as there was no reckless commission of an act.56
[50] The Applicant submitted that the Respondent was wrong to conclude that the Applicant should have been aware of the incident. 57
[51] The Applicant submitted that there was a dispute over whether the Applicant admitted that he was only two car lengths from the car in front of him. It was submitted that even if it were accepted that he was two car lengths behind the car in front of him no conclusion could be drawn as to what that distance was, as a car length is not a unit of measure. 58 It was submitted that the drivers were never instructed about what a safe distance was and that the distance proposed by Ms Kerr was not realistic.59
[52] It was submitted that if a truck driver kept the distance, proposed by Ms Kerr, between it and the vehicle in front of it then other vehicles would move into the space or the truck driver would have had to brake dramatically to maintain the safe distance. 60
[53] It was submitted that the Tribunal could not conclude the Applicant was driving unsafely and therefore there was no valid reason for the termination of the Applicant’s employment. 61 Even if the Tribunal found that there was misconduct, then the Applicant was treated differently to other drivers as the evidence showed that other drivers who had been involved in accidents had not had their employment terminated.62
[54] It was further submitted that if the incident on 14 February 2012 provided a valid reason for the termination of the Applicant’s employment then regard must be had to the other matters relied upon by the Respondent to justify terminating the Applicant’s employment.
[55] It was submitted that the warning that arose from Mr Dernelley’s complaint should be disregarded as Mr Dernelley’s evidence should not be relied upon, in particular because Mr Dernelley gave inconsistent evidence about where the incident occurred. 63
[56] It was submitted that the warning given in 2007 was spent on its own terms. 64
[57] It was submitted that the reasons for the dismissal were not put to the Applicant before the decision to terminate his employment was made 65 and he was therefore not provided with an opportunity to respond. Further the earlier matters relied upon by the Respondent were not put to the Applicant and he was therefore denied procedural fairness.66
[58] It was submitted that the termination of the Applicant’s employment without notice makes the dismissal unfair. 67 It was submitted that the only basis on which an employee’s employment can be terminated without notice or payment in lieu of notice is if the employee is guilty of serious misconduct and in this case the Applicant was not guilty of serious misconduct. Serious misconduct involves, it was submitted, “more than mere negligence, error of judgement or innocent mistake.”68
[59] It was submitted that the Applicant did not breach the workplace standards which included:
“Recklessly committing a potentially dangerous or unsafe act which could result in harm to one’s self or others. This includes but not limited to horseplay, skylarking and/or practical jokes.” 69
[60] It was submitted that recklessness is “a deliberate disregard of the consequences, rashness or heedlessness of the danger.” It was submitted that there was no evidence to support a finding the Applicant had been reckless. 70
Submissions of the Respondent
[61] The Respondent submitted that the Applicant’s employment was terminated for dangerous driving which was a breach of the Code of Conduct and a breach of his final warning. 71
[62] While the Code of Conduct was provided to the Applicant he had refused to sign a declaration that it had been read and understood. Be that as it may, the Respondent submitted that a breach of the policy was serious misconduct. 72
[63] The Respondent submitted that this conclusion was supported by the evidence that the Applicant was not driving a safe distance from the car in front of him. 73 The Respondent submitted that the evidence supported the conclusion that the Applicant was tailgating the car in front of him. To support this conclusion the Applicant relied upon the Victorian Bus and Truck Drivers Handbook that provided that a minimum of a two second gap should be left between the vehicles.74
[64] Further the Respondent submitted that there was a valid reason for the termination of an employee’s employment if there was “an ongoing pattern of behaviour of complaints coupled with warnings to the employee about this behaviour, and the employee has not resolved the behaviour complained of.” 75 It was submitted that it did not have to establish that the Applicant was guilty of the conduct alleged in each complaint.76
[65] It was submitted that at the meetings on 16 February 2012 and 29 February 2012, the Applicant was put on notice that his employment was at risk and he was provided with an opportunity to respond to the allegations. 77
[66] Further, it was submitted the Applicant had had a similar opportunity to respond to the complaint of Mr Dernelley prior to being given his final warning. It was submitted that the Applicant had never raised a grievance about the warnings he had been given.
[67] It was submitted that the Tribunal is able to determine that a safe distance is one where “you do not have to swerve violently to your right without an opportunity to brake; to safely brake.” 78
[68] The Respondent accepted that the car in front of the Applicant had braked unexpectedly. It was submitted that the Applicant should have had enough distance between him and that car to have been able in those circumstances to brake safely. 79
[69] It was submitted that no regard should be had to the statement in the police report because the person who made the statement was not called. 80 It was submitted that an adverse inference should be drawn from the fact that this witness was not called.81
[70] It was submitted that there was no evidence that other drivers who had accidents were not terminated. 82
[71] It was also submitted that Mr Dernelley’s evidence was credible and should be believed. It was submitted it did not matter where the incident occurred only that it had occurred. 83
[72] It was submitted that the Applicant was on notice that his employment was at risk as he had received a warning three months before about dangerous driving. 84 It was submitted that the Applicant had been given ample opportunity to improve his behaviour and he ignored those warnings.85
[73] While it was accepted that the warning given in 2007 was spent, it was submitted that it should not be totally disregarded as it established a pattern. 86 The Respondent submitted that the Applicant’s evidence about the complaints showed that the Applicant refused to take any responsibility for his own actions and is unlikely to do so in the future.87
Was the termination of employment harsh, unjust or unreasonable?
[74] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the following:
s387(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);
[75] The Applicant’s employment was terminated for misconduct. In determining whether there is a valid reason for the termination of the Applicant’s employment the Tribunal must determine if the conduct occurred. 88
[76] In this case it is first necessary to determine if the Applicant was driving unsafely. Irrespective of whether the Applicant signed that he had read and understood the Code of Conduct it cannot be disputed that a professional driver must be aware of his obligation to keep a safe distance from the vehicle in front of him.
[77] The Victorian Bus and Truck Drivers’ Handbook (2011) (the VicRoads handbook) which is published by VicRoads states that “when travelling at 100km/hour, the driver of a heavy vehicle should drive at least six to seven seconds behind the vehicle in front.” 89 It was not suggested that the Applicant had been provided with a copy of this document or that the Applicant had been told by the Respondent that he was required to keep this distance from the vehicle in front of him.90
[78] However the Applicant described himself as a professional driver and he would be expected to know what distance he needed to be safely behind the vehicle in front of him. It should be remembered that the reason a safe distance is required is because other road users do unexpected things like braking without warning.
[79] It was not contested by the Respondent that the car travelling in front of the Applicant braked suddenly.
[80] The Applicant denied telling Ms Kerr that his vehicle was two car lengths behind the car in front. Mr Wallace could not recall the Applicant saying this but Mr Keelty said that the Applicant said he was driving two car lengths or more behind the car in front of him.
[81] I accept the evidence of Ms Kerr and Mr Keelty that the Applicant did make reference to two car lengths. I found their recollection of the interview to be more reliable than the Applicant or Mr Wallace. Even if the Applicant said two car lengths or more I do not accept the submissions that this is an indeterminate distance. While a car length is not a precise measure of distance I am able to conclude that the Applicant was less than three car lengths from the car in front of him when the car in front of him braked.
[82] A vehicle travelling at 100kms per hour is travelling at 27.77 metres per second. VicRoads says that the safe distance for a truck in these circumstances is 166.62 -194.39 metres.
[83] The Applicant made submissions that this was not realistic. It relied upon the evidence of Mr Wallace to support this submission. 91 It was also submitted that this distance was not realistic given the circumstances on our roads. While I accept that other vehicles will move in front of other vehicles and therefore reduce the safe space the driver has, it is incumbent on the driver to then take action to increase the space until it is a safe distance.
[84] I consider that the reliance by the Respondent on the VicRoads handbook was not unreasonable. I do not find the Applicant’s submissions on this point convincing. Even if the safe distance were half of that recommended by VicRoads the Applicant should have been 80-100 metres behind the car in front of him, not 15 to 20 metres assuming a car length is about five metres long. 92
[85] The Applicant’s evidence about how this accident occurred was contradictory. His witness statement and his evidence before the Tribunal differed. In his witness statement he described a car overtaking him and “a split second” later immediately slamming on his brakes. 93
[86] In his evidence before the Tribunal he said that the car came in from the left because the lane had run out and this was not a problem for him. The car braked suddenly at the next exit which, it was not contested, was approximately 800 metres from the overpass where the car had come into his lane. 94
[87] I do not accept the Applicant’s evidence that he was a safe distance behind the car in front of him.
[88] I do not consider that I should give any weight to the statement of the independent witness as this evidence was not able to be tested. Further the statement is inconsistent with both versions of the incident given by the Applicant.
[89] I find that the Applicant’s conduct in not driving a safe distance from the car in front of him caused the Applicant to have to swerve suddenly when the car in front of him braked suddenly. This caused a collision with another car. This conduct showed a reckless disregard for this own safety and the safety of others.
[90] I accept the evidence of the Applicant that he was not aware that he had hit another vehicle. I accept that he should have looked in his right hand mirror to ensure that he had performed the manoeuvre safely. He seemed to be more concerned with seeing what the car, which had braked suddenly, was doing rather than assessing whether he had moved safely into the adjoining lane.
[91] This was not the first incident of unsafe driving involving the Applicant. While I accept that there were inconsistencies in Mr Dernelley’s evidence about where the tailgating incident occurred I do not doubt that the Applicant drove too closely to Mr Dernelley which caused him to fear for his safety. The Applicant was given a letter of warning about this conduct. That letter put him on notice that his employment was at risk. Mr Wallace warned him that he would not support him “if he messed up again” 95.
[92] This was not the first warning the Applicant had received. He received a warning in October 2007. However this warning was only to remain active for 12 months. I do not accept that, having advised the Applicant that the warning would remain in place for 12 months, the Respondent can now rely upon the warning to justify the termination of the Applicant’s employment.
[93] I find that the Respondent had a valid reason for terminating the Applicant’s employment. The Applicant caused a serious accident by failing to drive at a safe distance from the car in front of him. At the time of the incident the Applicant was on a final warning for driving too close to a vehicle in front of him. Such reckless disregard for his own safety and the safety of others warranted the termination of his employment.
s387(b) whether the Applicant was notified of that reason;
[94] The Applicant was advised in December 2011 that any further breach of his obligations put his employment at risk.
[95] After the incident on 14 February 2012 he was stood down on pay while the incident was investigated. At the final meeting on 29 February 2012 the Applicant was told what the issues were and his representatives responded on his behalf. His representatives told the Respondent that the Applicant had done nothing wrong. The Applicant’s representative told them that the decision was to terminate his employment. When that happened the Applicant’s representatives asked for an adjournment. After the adjournment the Applicant’s representatives invoked the dispute resolution procedure of the enterprise agreement. There was then a further break and the Respondent again advised that it had decided to terminate the Applicant’s employment. Further discussion took place but the Respondent did not resile from its assessment of the incident. 96
[96] The Applicant was subsequently provided with a letter of termination dated 2 March 2012 in which he was advised that his employment was terminated effective 2 March 2012. 97
[97] It was submitted that the Applicant was not notified of all the reasons set out in that letter at the meeting on 29 February 2012 and therefore he was denied procedural fairness. There is no doubt that the list of incidents referred to in that letter, were not put to the Applicant in that meeting. However while those matters were considered by the Respondent it is clear that the reason for the termination of the Applicant’s employment was the incident on 14 February 2012. The Applicant was advised of the reason for the dismissal before a final decision was made.
s387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[98] The Applicant and his representatives were given an opportunity to respond to the reason for the dismissal. They did this when they denied the Applicant had done anything wrong. They disputed the basis on which the Respondent determined that the Applicant was not driving at a safe distance but their contentions were not accepted by the Respondent and the Respondent confirmed its decision to terminate the Applicant’s employment in its letter dated 2 March 2012.
s387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;
[99] The Applicant had a representative at each meeting.
s387(e) if the dismissal related to unsatisfactory performance by the person—whether the Applicant had been warned about that unsatisfactory performance before the dismissal;
[100] The Applicant had been warned about safe driving in December 2011 after a similar incident in which he drove at an unsafe distance behind another vehicle.
s387(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;
[101] The Respondent is a large employer and this would not have an impact on the procedures adopted by the Respondent.
s387(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;
[102] The Respondent had a dedicated human resource management specialist and therefore this criterion is not relevant.
s387(h) any other matters that FWA considers relevant.
[103] It was further submitted that the termination was harsh because of the personal circumstances of the Applicant. He has no qualifications other than his driving licences; he comes from a non English speaking background and has limited English and maths skills. He left school at year 8. He lives in an area of high unemployment for mature age males and he is unlikely to obtain other employment in the future. 98
[104] The Applicant had worked for the Respondent for 9.5 years. His wife had died suddenly 18 months earlier and he has four children who still live at home. The death of his wife has been difficult for the Applicant both emotionally and financially.
[105] The Respondent contended that while these are relevant factors the Respondent had taken them into account when it decided in December 2011 to issue the Applicant with a final warning rather than terminating his employment for unsafe driving. 99
[106] These are important considerations however I am unable to conclude that the termination is harsh even though it will have significant consequences for the Applicant. 100 If this incident had been a one off event I would have taken a different view.
[107] The Applicant submitted that other drivers who have had accidents have not had their employment terminated and therefore the decision to terminate the Applicant’s employment was harsh. 101
[108] However there was no evidence that other drivers who were on a final warning who caused an accident because of unsafe driving practices were treated differently to the Applicant.
[109] Further the Applicant submitted that regard should be had to the fact that the Applicant had always been paid a “bingle bonus” which was paid to employees who had not had an accident. While there was some disagreement about the criteria used to assess whether an employee was entitled to be paid the “bingle bonus” there was no suggestion that the Applicant had previously been at fault in a traffic accident. 102
[110] It was submitted that as the Applicant was not guilty of serious misconduct the failure to pay the Applicant notice of termination makes the termination unfair.
[111] The Fair Work Regulations define serious misconduct as “conduct that causes serious and imminent risk to the health and safety of a person.” 103 In this matter I have found that the Applicant’s conduct caused a serious and imminent risk to the health and safety of himself and other road users. Importantly this conduct was not something that had only occurred once. Therefore the Respondent was entitled to terminate the employment summarily.
[112] After the hearing the Applicant communicated by email directly with my chambers without the knowledge of the Respondent. A copy of that correspondence was provided to the Respondent and I advised both parties that I would have no regard to the contents of that email in my decision.
Conclusion
[113] In all the circumstances, I am unable to conclude that the termination of the Applicant’s employment was harsh unjust or unreasonable. The Respondent had a valid reason for its decision to terminate the Applicant’s employment. The Applicant was provided with an opportunity to explain what happened. The Applicant denied any wrong doing. The Applicant was represented at all times. The Applicant was provided with procedural fairness.
[114] While the loss of his job will have a significant impact on the Applicant it cannot be ignored that his conduct put his and other road user’s lives at risk and he had only been warned two months earlier about such conduct. While the consequences for the Applicant are regrettable those consequences arise because the Applicant ignored the clear warnings given by the Respondent about his conduct.
[115] The application is dismissed.
COMMISSIONER
Appearances:
G Dircks for the Applicant.
L Connolly for the Respondent.
Hearing details:
2012.
Melbourne:
June 6, 7 and 29.
1 Exhibit A2 at [5]-6]
2 Ibid at [7]-[8]
3 Exhibit R4 at [57]
4 Ibid at [62]
5 Ibid at [68]-[71]
6 Ibid at JK27
7 Ibid
8 Ibid
9 Exhibit R13 at PT4
10 Exhibit A2 at [5]
11 Exhibit R10 at [20]-[21]
12 Exhibit R4 at JK22
13 Exhibit R9
14 Exhibit R9 at GK1
15 Transcript PN 368
16 Ibid PN 348-356
17 Ibid PN 357
18 Ibid PN 691
19 Exhibit R8 at [11]
20 Ibid at [16]
21 Transcript PN 742
22 Ibid PN 764
23 Exhibit R10 at [12]
24 Ibid at [15]
25 Exhibit A5
26 Exhibit R12 at PN 6
27 Ibid at [14]
28 Ibid
29 Ibid
30 Ibid at [16]
31 Ibid at [18]
32 Exhibit R4 at JK18
33 Ibid at JK19
34 Ibid at [49]
35 Exhibit A2 at [14]
36 Exhibit R7
37 Ibid at [1]-[2]
38 Ibid at [3]-[8]
39 Transcript PN 1569
40 Ibid PN 1581
41 Ibid PN 1616
42 Exhibit R13 at [18]
43 Ibid at PT4
44 Ibid at [21]
45 Transcript PN 118-119
46 Ibid PN 129
47 Exhibit R4 at JK 14
48 Transcript PN 2258-2259
49 Ibid PN 2260
50 Ibid PN 2261
51 Ibid
52 Ibid PN 2262
53 Ibid
54 Ibid PN 2266
55 Ibid PN 2269
56 Ibid
57 Ibid PN 2273
58 Ibid PN 2280
59 Ibid PN 2281
60 Ibid PN 2282
61 Ibid PN 2296
62 Ibid PN 2300
63 Ibid PN 1330-2333
64 Ibid PN 2356
65 Ibid PN 2358
66 Ibid PN 2358
67 Ibid PN 2262
68 Ibid PN 2263
69 Ibid PN 2267-2268
70 Ibid PN 2269
71 Exhibit R14 at [20]
72 Ibid at [26]
73 Ibid at [22]
74 Ibid at [24]
75 Ibid at [28]
76 Ibid at [29]
77 Ibid at [30]
78 Transcript PN 2402
79 Ibid PN 2406
80 Ibid PN 2408
81 Ibid
82 Ibid PN 2410
83 Ibid PN 2411
84 Ibid PN 2419
85 Ibid PN 2420
86 Ibid PN 2425
87 Ibid PN 2428
88 Edwards v Giudice 169 ALR 99 at [7]
89 Exhibit R4 at [76]
90 Exhibit A2 at [12]
91 Exhibit A1 at [12]
92 Transcript PN 2281
93 Exhibit A2 at [5]
94 Transcript PN 348-356
95 Exhibit R4 at [49]
96 Exhibit R4 at JK27
97 Ibid
98 Exhibit A6 at [23]
99 Exhibit R14 at [55]
100 Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 at 465
101 Transcript PN 315, PN 1793
102 Ibid PN 2486
103 Regulation 1.07
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