Randall v Greyhound Australia Pty Ltd
[2008] FMCA 1191
•29 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RANDALL v GREYHOUND AUSTRALIA PTY LTD | [2008] FMCA 1191 |
| INDUSTRIAL LAW – Alleged unlawful termination – claims for breach of contract – breach of agreement – negligence – termination for serious neglect of duty – application dismissed. |
| Workplace Relations Act 1996 (Cth) ss.659(2)(f), 664, 666 |
| Bahonko v Sterjov [2007] FCA 1244 McDonald v Parnell Laboratories (Aust) [2007] FCA 1903 |
| Applicant: | BRIAN RANDALL |
| Respondent: | GREYHOUND AUSTRALIA PTY LTD |
| File Number: | MLG 1130 of 2007 |
| Judgment of: | O’Sullivan FM |
| Hearing dates: | 3 & 4 March 2008 |
| Date of Last Submission: | 21 May 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Counsel for the Respondent: | Mr M. Willoughby-Thomas |
| Solicitors for the Applicant: | Martin Willoughby-Thomas |
| Counsel for the Respondent: | Mr P. Ginnane |
| Solicitors for the Respondent: | Deacons |
ORDERS
The application filed 17 August 2007 be dismissed.
The respondent will have 14 days to file and serve any submissions it may wish to make in relation to the application for costs.
The applicant will have a further 14 days to file and serve any submissions in relation to the application for costs made by the respondent.
The respondent will have a further 7 days to file and serve anything in reply.
Unless requested in those submissions any application for costs will be considered on the papers.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1130 of 2007
| BRIAN RANDALL |
Applicant
And
| GREYHOUND AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
Greyhound Australia Propriety Limited (“the respondent”) is a national coach operator providing coach services between 1,100 cities and towns Australia wide and estimates it transports 1,000,000 passengers each year.
Mr Brian Randall (“the applicant”) is 53 years of age and was employed full time as a coach captain with the respondent from 28 July 2004 until 13 June 2007.
On 13 June 2007 the respondent terminated the applicant’s employment, in circumstances which are in dispute.
On 22 June 2007 the applicant filed an application for relief in relation to the termination of his employment in the Australian Industrial Relations Commission (“the AIRC”). Following a conciliation conference, on 30 July 2007 a certificate under s.650 of the Workplace Relations Act 1996 was issued by the AIRC.
On 16 August 2007 the applicant filed a notice of election pursuant to s.651 of the Workplace Relations Act 1996 (“the WR Act”) to commence proceedings in this Court. The applicant filed a claim for unlawful termination pursuant to section 663 of the WR Act the following day.
On 14 September 2007 orders and directions were made for hearing including for the filing of contentions of fact and law. The applicant filed contentions of fact and law on 11 October 2007 and the respondent on 29 October 2007.
The matter was listed for mention on 21 February 2008 as the applicant had raised issues in correspondence about compliance with the directions made on 14 September 2007. As a result further orders were made that day giving the applicant leave to file a further affidavit and providing for the balance of the earlier directions to stand.
The hearing commenced on 3 March 2008 and concluded on 4 March 2008. At the hearing the applicant was represented by his solicitor Mr Willoughby-Thomas, and the respondent by Mr Ginnane of Counsel. At the conclusion of the hearing directions were made for the filing of submissions by both parties.
The applicant filed submissions on 9 April 2008 and the respondent on 12 May 2008. The applicant filed submissions in reply on 21 May 2008.
The applicant made repeated complaints in final submissions regarding alleged deficiencies on the respondent’s part in discovery. Whilst there had been orders by consent for discovery, no application was made prior to or during the hearing for an adjournment by reason of the complaints referred to in submissions. Instead the applicant’s solicitor chose to make florid and misconceived submissions after the hearing on the issue. This and the conduct of the applicant’s case more generally is a matter to which I will return.
Finally, public awareness has risen in the last number of years of the dangers associated with speeding or driving whilst fatigued. Allegations of both, and a claim of unlawful termination and other claims, are made in this case.
Application
The grounds of the application filed 17 August 2007 (“the application”) were:
“(a)Unlawful termination;
(b)Breach of contract;
(c)Negligence;
(d)Breach of agreement
(e)In relation to grounds (a)-(d), see the affidavit and the draft statement of claim attached.”
The application filed 17 August 2007 sought the following orders:
“A.Pursuant to s.665 of the Workplace Relations Act, an order imposing a penalty on the Respondent in relation to the unlawful termination.
B.An order that the penalty be paid to the Applicant.
C.Pursuant to s.665 of the Act, an order that the Respondent reinstate the applicant together with orders to maintain continuity of employment and to compensate the applicant for the remuneration lost due to the termination of employment.
D.In the alternative to paragraph C, an order that the Respondent pay the Applicant compensation in lieu of reinstatement.
E.Pursuant to s.665 of the Act, an order that the Respondent apologise to the Applicant.
F.Pursuant to s.665 of the Act, any other order that the Court thinks necessary to remedy the effect of termination.
G.Any consequential orders pursuant to s.665 of the Workplace Relations Act.
H.Pursuant to s.719 of the Workplace Relations Act, an order imposing penalties in the Respondent in relation to the breaches of the McCaffretys Greyhound Pty Ltd Certified Agreement 2004.
I.An order that the penalties be paid to the Applicant.
J.An order that the respondent pay the Applicant damages, including aggravated damages, in relation to the breaches of contract.
K.An order that the Respondent pay the Applicant damages, including aggravated and exemplary damages, in relation to negligence.
L.Such other or further orders as the Court deems just.”
The claims made in the affidavit sworn by the applicant’s solicitor and the draft statement of claim accompanying the application as filed can be summarised as follows:
i)unlawful termination;
ii)breach of contract by reason of inter alia a breach of the duties of good faith and fidelity and mutual trust and confidence;
iii)breach of the McCaffretys Greyhound Pty Ltd Certified Agreement 2004 and civil penalties pursuant to s.719 of the WR Act for same; and
iv)negligence.
By response filed 5 October 2007 the respondent opposed the orders set out in paragraph 13 above and sought that the application be dismissed. In its contentions of fact and law filed 29 October 2007 the respondent also sought that the applicant pay its costs.
The respondent’s stated reason for termination of the applicant’s employment was summarised in its contentions of fact and law as follows:
“22.The continued failures to give a reasonable or valid response to the over speeds, failure to cease driving whilst fatigued, continued over speeding and failure to make a proper statement in explanation of the over speeds were serious neglects of duty. In particular the Applicant was in breach of his obligations under the respondent’s Drivers manual which formed part of the terms and conditions of employment of the applicant…
23.In light of the serious neglect of duty, the applicant’s history of over speeding and the 2 warnings the applicant had previously received, and the respondents duty of care to its passengers, the respondent decided to terminate the applicant’s employment.
24.Termination of employment was for gross misconduct constituted by serious neglect of duty in accordance with 2.3(g)(iii) of the Agreement.”
At the hearing the applicant gave evidence and was cross examined as was Colin Beveridge and Kevin Nelson who were called as witnesses by the applicant. The applicant did not call evidence from his solicitor Mr Willoughby-Thomas which is a matter to which I will also return.
Evidence for the respondent was given by Michaela Magennis, Lynette Johnson, Mark Macpherson and Andrew Hoffman. All the respondent’s witnesses save for Mr Hoffman were required for cross examination.
Conduct of Case
It was clear from the affidavit material filed by the parties that the applicant’s solicitor had been involved in the disciplinary meeting in November 2006, when the applicant was warned his employment may be terminated for further incidents of speeding and also present at the meeting on 13 June 2007 when the applicant was terminated. Despite this the applicant’s solicitor was not called to give evidence.[1]
[1] The applicant had sought to rely on notes taken by his solicitor at those meetings but these were not admitted into evidence.
The respondent raised this matter in submissions at paragraph 118 and the applicant responded at paragraphs 30-37 of his submissions in reply.
The respondent submitted that the Court was entitled, in accordance with the principles stated in Jones v Dunkel (1959) 101 CLR 298 to draw the inference, to the extent it were necessary to do so, that any evidence he could have given would not have assisted the applicant’s case. The respondent said in submissions:
“…The Court could have expected that in regard to the counselling and disciplinary meetings the applicant would have called Mr Willoughby-Thomas. His subsequent position as a solicitor for the applicant in the conduct of the subsequently instituted legal proceedings would not have forestalled him giving evidence of what occurred in the meetings. The Court should reject the explanation that Mr Willoughby-Thomas did not give evidence because of solicitor client confidentiality in the event the applicant responds to the issue and relies upon that ground. A critical fact in issue at the second disciplinary meeting was whether the respondent was at liberty to rely upon the ground of fatigue or not. The respondent contends it was so entitled. The respondent contends that the reason of fatigue was not distances by the applicant in the course of the meeting and was in fact restated as the explanation by Mr Willoughby-Thomas. The applicant has chosen not to put Mr Willoughby-Thomas on oath in regard to this point. That the applicant continued to rely upon (sic) being been fatigue (sic) and that this was his reason for the speeding should be found to have been the case.”[2]
[2] Para 118 of respondent’s submissions
Jones v Dunkel (supra) inferences arise in circumstances where a witness who is otherwise available is not called and the failure to call them cannot be explained. Leaving to one side whether the reason referred to in submissions was an explanation and noting it wasn’t provided to the Court at the hearing it was not unexplained. In any event I don’t need to draw any inference as I have the evidence of Ms Johnstone of what was said by Mr Willoughby-Thomas and I accept that evidence.
Unfortunately this was not the end of the difficulties associated with this matter.
As referred to earlier whilst having made no application for an
adjournment the applicant had levelled criticisms at the respondent over alleged failures to provide discovery which it was said told against the respondent’s ability to discharge the burden under s.664.
The applicant repeated this contention at paragraphs 38, 51 and 62 of
his submissions.
The respondent addressed these criticisms at paragraphs 131 to 144 of its submissions. The respondent’s submissions contended that the applicant’s criticism’s “reveal a startlingly fundamental misunderstanding or deliberate attempt at obfuscation about the reasons why his employment was terminated” and “an ongoing misapprehension by the applicant of the case he commenced.”
As the respondent said in submissions:
“142.It should be borne in mind that the supposed relevance of this category of documents to any fact in issue in the proceeding arises exclusively because of the applicant’s assertion that no other driver was terminated for overspeeding.
143.Thus when the respondent’s Ms Magennis annexed to her affidavit documents identifying the existence of employees other than the applicant who were terminated for reasons that included speeding, the applicant unilaterally altered the parameters of the debate and would now contend (see paragraph 77) that the annexed documents do not record the termination of any other driver for “overspeeding recorded on the internal Greyhound systems i.e. VDO or tachograph – other than Brian Randall that is”. The respondent submits that the applicant’s conduct warrants adverse comment. In the face of the allegation that the applicant was singled out and treated differently in that no other driver was terminated by the respondent for overspeeding and being met by evidence establishing the contrary, the applicant after the cases closed has impermissibly changed the goal posts. The respondent submits that it has met the allegations and answered it.”
I accept the respondent’s submission that it met the obligation and answered it. Whilst not I am prepared to find the applicant’s solicitor’s “ex-cathedra” comments by way of written submissions were mischievous they were certainly unhelpful.
That quality was unfortunately an all too common hallmark of the conduct of the applicant’s case and here I note the repeated attempts in submissions to recast the evidence given by Ms Johnstone along with attempts, as the respondent said, to “move the goal posts” beyond those contained in the contentions of fact and law[3]. There was also the particularly unhelpful practice adopted by the applicant’s solicitor of advancing by way of submissions a case that was never put to witnesses for the respondent.
[3] see para 187-188 of respondent’s submissions
A couple of other examples illustrative of this unhelpful attitude by the applicant’s solicitor (along with the tendency to make florid statements) associated with the conduct of the case are:
a)Ms Magennis gave evidence that the solicitor for the applicant had “likened” the respondent’s HR policies to living in “Hitler’s Germany”; and
b)the statement made by the solicitor for the applicant when the parties were being asked by the Court at the conclusion of the hearing to provide written submissions that he was “out of pocket”, “may file a notice of ceasing to act” and this was not a justice system because of the constraint on finances.
Suffice it say each party made criticisms of the other in submissions on issues in connection with the conduct of the case. To the extent that it is necessary to do so those criticisms are also referred to below when considering the issues.
Background
I have not recited, nor do I intend to recite, all of the evidence that was presented over the two days of hearing although all the evidence has been considered and taken into account as have the submissions filed by both parties. In what follows a statement of fact constitutes a finding of fact unless the context suggests otherwise.
As a national transport operator the respondent must meet State and Federal Government regulations. As part of meeting these requirements the respondent is required to monitor driver performance.
To do this the respondent operates a fleet management system known as the VDO system. In order to properly understand what follows
it is necessary to set out some detail about how that system operates and what the respondent does with the information gathered from it.
Mr Macpherson’s evidence was:
“4.The VDO system monitors driver and vehicle performance, and has an internal GPS system that can record GPS information such as GPS speed and location.
5.Each driver is assigned an identification key which much be used to log onto the VDO system. If the ignition is turned on and the driver does not log on, the VDO system audible buzzer will sound until the driver identifies. The key is unique and identifies the driver so that Greyhound can know which driver is driving which coach.
6.The VDO system is a box that is placed in the vehicle. It has wiring connected to a permanent power supply, the ignition ON power supply, the speed sender unit signal of the Speedometer and the engine RPM signal, brake alight signal, plus various other electrical inputs.
7.The VDO system is designed to provide for location management, vehicle management and driver management. In particular, for each journey that a vehicle fitted with the VDO system take, the suite of information includes date and time, distance, engine hours, vehicle speed, engine speed (or revolutions per minute), trip start and end time, trip depart and arrive time, driver identification, and vehicle identification and “event” times.
8. The VDO system records, amongst other driver violations, overspeeding. This is known as an “event”. The VDO system installed in Greyhound coaches records an overspeed “event” when a vehicle is operated at a speed greater than 105 kilometres an hour
…
10.The VDO system is connected to the speedometer by wiring. When the VDO system reads that the vehicle is being operated above 105 kilometres per hour or more, the VDO system registers an overspeed event, and the buzzer on the vehicle dash sounds to alert the driver that he or she is overspeeding…”[4]
[4] Exhibit R5
The VDO system generates an overspeeding report and overspeed notices are sent to the relevant regional office to be provided to the coach driver involved. The respondent requires all drivers who receive an overspeed notice to provide an explanation about the events contained therein so it can ensure it meets its regulatory requirements.
Ms Magennis gave evidence about how and why the respondent dealt with overspeed events identified by the VDO system:
“14.Greyhound determines whether a driver has consistently or excessively speeded on a case by case basis taking into account any number of variable factors that might embrace matters as diverse as the weather conditions, the speed zone, where the infringement occurred etc. The action taken against a driver (if any) is also determined by a number of factors, including the explanation of the overspeed, the above mentioned factors and the driver’s attitude towards the overspeed. Overspeeds can occur when a coach is carrying passengers or when a coach is empty save for its driver. Once the driver receives an overspeed notice, a uniform process is put in train and followed. The driver’s written response determines whether or not a face to face meeting needs to occur. If a driver submits an inadequate response (eg. Insufficient information or information which may prove false or about which there may be suspicion) then a face to face meeting is required to ensure that we adequately understand the circumstances of the speeding.
…
17.Greyhound is subject to Operator Accreditation Standards administered by the Safety Branch within the Office of the Director of Public Transport on behalf of the Victorian Department of Infrastructure and in accordance with the Public Transport Competition Act 1995. Greyhound is required to monitor driver performance at all times. In compliance with this requirement, Greyhound has commenced fitting coaches with a fleet monitoring device (named VDO) which meets the accreditation standards. Not all vehicles have been fitted with a VDO yet, but all vehicles are fitted with some form of driver monitoring device and all are speed limited.
18.Every Greyhound driver is issued with a unique VDO key, and, prior to driving a coach, the driver must “log on” to a coach by inserting their unique key into the VDO recording device. The VDO recording device records driver, mechanical and coach movements and performance. In particular, it records all details concerning a vehicle’s movements (including speed) in accordance with legislation. A coach driving at or below the speed limit of 100 kilometres per hour will not record overspeeds. When a coach is driven above the parameters set within the system (which is set no less than 100 kilometres per hour), a buzzing noise sounds on the dashboard, alerting the driver that the coach is being operated over speed and should be slowed down.
19.When a driver records that a coach is being operated at a speed higher than the parameter set in the system, the VDO records the overspeed “event”. The VDO system can then generate an overspeed notice. Laurel Fahy, Fleet Administrator, is responsible for printing the overspeed notices from the VDO system once a week. Depending on the identity of the driver identified as overspeeding, Laurel then sends the overspeed notices to the appropriate Regional Manager to issue to the identified driver.
The overspeed notice sets out the type of offence, the date and time of the offence, the duration of the offence, the vehicle number and the maximum speed at which the vehicle was operated. The overspeed notice directs that the driver is to provide a written statement on a specified form within
3 days of receipt of the notice. The statement must explain why the vehicle listed on the notice appears to have been operated at speeds exceeding 100 kilometres per hour. As set out at paragraph 14 above, any driver who consistently or excessively exceeds speed limits will be subject to disciplinary action or dismissal.
20.As part of the accreditation process in all states and territories in which Greyhound operates, driver and operator responses to overspeeding are audited. In particular, in Victoria the Department of Infrastructure conducts regular audits. One aspect of Greyhound’s operations that is checked as part of the audit is a random sample of overspeed notices. Greyhound must show in relation to that random sample that it has investigated and addressed the overspeed. If Greyhounds is unable to show that it has investigated and addressed the overspeed, the accreditation could be revoked. Accordingly, it is important that overspeed notices are properly responded to by Greyhound’s drivers so that Greyhound can demonstrate to the Department that it has adequately investigated and addressed the overspeed.”
With that background as to how the respondent monitors its coaches and drivers, and why, I now turn to the other factual background to this matter.
The applicant in this case applied for employment with the respondent on 27 July 2004. As a part of that application he disclosed he suffered from type 2 diabetes.
The applicant commenced employment with the respondent in the position of coach captain on 28 July 2004. The applicant’s contract of employment incorporated the McCaffertys Greyhound Pty Ltd Certified Agreement 2004 (“the Agreement”) which was made pursuant to s.170LJ of the WR Act on 5 November 2004.
In its terms the Agreement provided that it “shall operate from
13 July 2004 and shall remain in force for 3 years.”The Agreement consists of a number of Schedules. Schedule A provides general conditions for all employees and Schedule B provides additional conditions for coach captains. The Agreement contained the following:
“1. TITLE
This Agreement shall be known as the ‘McCaffertys Greyhound Pty Ltd Certified Agreement 2004’.
1.1 AGREEMENT APPLICATION
(a) The parties to this Agreement are:
(i)McCaffertys Greyhound Pty Ltd – A.C.N. 104 326 383 (the Company);
(ii)All McCaffertys Greyhound Pty Ltd Employees and (sic) referred to in Schedules B, C, D, E, F and G of this Agreement (McCaffertys Greyhound Employees);
…
(c)This Agreement sets out the terms and conditions of McCaffertys Greyhound Employees, no other award or agreement shall apply to McCaffertys Greyhound Employees.
…
1.2. PERIOD OF OPERATION
(a)This Agreement shall operate from 13th July 2004 and shall remain in force for 3 years. The nominal expiry date will be 12th July 2007. However, following certification, McCaffertys Greyhound Employees will, from the date of operation be paid the rates prescribed in this Agreement.
…
PART 2 TERMS AND CONDITIONS OF EMPLOYMENT
2.1 CONTRACT OF EMPLOYMENT
…
2.3 TERMINATION
…
(c) Termination by the Company
The Company may terminate a McCaffertys Greyhound Employee’s employment:
(i)without notice if the McCaffertys Greyhound Employee is guilty of gross misconduct as defined in Clause 2.3(g); or
…
(g) Gross misconduct includes but is not limited to:
…
(iii) serious neglect of duty;
2.6 POLICIES AND PROCEDURES
(a) The Company will implement policies, procedures and staff manuals during the term of this agreement to be strictly followed by McCaffertys Greyhound Employees.
(b)The policies will be available from:
(i)the Company Intranet site;
(ii)McCaffertys Greyhound Employees’ Manager / Supervisor;
(iii)McCaffertys Greyhound Employees’ WLT Representative.
(c)Staff manuals will be made available from McCaffertys Greyhound Employees’ Manager/Supervisor or the Human Resources Department.
…”
PART 4 NON-STANDARD OVERTIME AND BREAKS
4.1. CONVERSION OF NON-STANDARD OVERTIME
(a)For the purpose of this clause “non-standard overtime” means any hours outside a McCaffertys Greyhound Employee’s rostered hours which have not been included on a standard roster.
(b)A McCaffertys Greyhound Employee may elect to convert non-standard overtime to time off in lieu of payment at the rate of one hour off for each hour of non-standard overtime worked.
(c)Any non-standard overtime converted to time off in lieu will not attract Annual Leave Loading.
(d)Any time taken off duty in lieu of non-standard overtime will be taken at a time convenient to the Company and the McCaffertys Greyhound Employee.
(e)Where the employment of a McCaffertys Greyhound Employee is terminated (by either party), McCaffertys Greyhound Employee will be entitled to be paid for any non-standard overtime converted to time off in lieu which has not been taken, at the rate of one hour for each hour of non standard overtime worked.
(f)All time off in lieu of non-standard overtime must be recorded on a Time in Lieu Form and approved by the manager before forwarding to payroll.
(g)In the event that a McCaffertys Greyhound Employee has time in lieu accumulated of 10 Days or more or has untaken time in lieu for a period of 18 months the Company may either require the McCaffertys Greyhound Employee to take all or part of the time owed to the McCaffertys Greyhound Employee or pay out all or part of the time as a non standard overtime payment.
…
PART 6 MISCELLANEOUS PROVISIONS
6.1 EQUAL EMPLOYMENT OPPORTUNITY
(a)The Company is committed to equal opportunity in employment consistent with the principles of equity and fairness and conforms to the spirit of intent of equal opportunity, anti-discrimination and affirmative action legislation.
(b)The Company accepts its responsibility to create a work environment free from discrimination and to ensure that the principle of merit operates.
(c)McCaffertys Greyhound Employees agree to comply with the Company’s anti-discrimination policy contained in the Company’s Policy and Procedures and Employee Hand book.”
The respondents’ policies and procedures (referred to in the Agreement) included the Greyhound Australia Drivers Manual (“the drivers manual”) which set out the responsibilities of drivers employed by the respondent.[5] The drivers manual amongst other things provided as follows:
[5] Annexure MM3 to Exhibit R2
“Responsibilities of Drivers
…
The following offences may result in termination of employment and/or the pursuit of criminal or legal charges:
Loss of licence or authorisation where this is essential in carrying out job.
…
Gross negligence in the operation of Company vehicles e.g:
Running out of Fuel
Over revving, excess idling, speeding etc
Failure to comply with a lawful direction from a supervisor.
Breaching safety rules, policy or procedures.
…
Failure to observe Company Policy as stated in Driver’s Manual and/or Notices as issued from time to time.”
(emphasis added)
The respondent’s policies also included a Counselling and Discipline Policy (Exhibit A7) which inter alia provided:
Counselling/Warning and Discipline procedures:
1. Counselling
…
2. Dismissal
…
What does NOT constitute a justifiable ground for dismissal includes:
· Temporary absence from work because of illness or injury;
· Union membership or legitimate union activities;
· Non-membership of a union;
· Seeking to be or acting as a representative of employees;
· Filing a complaint against an employer or being involved in legal actions against the employer;
· Race, colour, martial status, religion, etc – the full range of grounds outlawed under anti-discrimination legislation;
· Absence from work during any form of parental leave;
· Refusing to negotiate; make or sign etc an Australian workplace Agreement (AWA).
3. Notice
…
4. Summary or Instant Dismissal
In the case of serious or gross misconduct, the Manager/Supervisor must notify the Vice President HR/IR as soon as possible. The employee, after investigation, may be dismissed summarily without notice of dismissal or a payment in lieu. Summary dismissal may only be approved by the Vice President HR/IR and Chief Executive Officer.
Employees violating any of the following operational rules may be instantly or summarily dismissed and/or the subject of civil action:
· Consuming alcohol whilst on duty or reporting for duty whilst under the influence of alcohol;
· Use or possession of any illicit drugs or substances at any time;
· Theft;
· Wilful destruction, vandalism or removal of property belonging to a guest, staff or the Company;
· Possession of firearms, spear guns, explosives, illegal items or publications;
· Immoral conduct – including soliciting for the purpose of alcohol, drug use or immoral purposes;
· Gambling with Company premises;
· Ignoring or refusing an instruction given by a Manager/Supervisor;
· Violating any health and safety or security rules or practice on Company premises;
· Any act, which in the reasonable opinion of the Company is discrimination or sexual harassment;
· Unauthorised use of vehicles;
· Unauthorised travel or use of the Company’s products or services;
· Intimidating, threatening or physically hurting staff members or guests;
· Fighting resulting in physical conduct;
· Serious neglect of duty or incompetence;
· Wilful inefficiency;
· Dishonesty;
· Misrepresentation of qualifications or work history;
· Conviction of a criminal offence which in the opinion of the company affects an employees suitability for the position;
· Failing to have, in the reasonable opinion of the Company, a positive and constructive attitude towards the performance of their duties;
· Misconduct of any kind which may injure the Company’s reputation;
· Wilful disobedience of lawful directions given by the company;”
The respondent’s policy on Equal Employment Opportunity and Affirmative Action (Exhibit A5) provided:
“Procedure
The Company is committed to providing an environment that is safe for its employees. You will not be disadvantaged in your employment conditions or opportunities as a result of lodging a complaint.
1.If any incident occurs in the workplace that is believed to be in breach of this policy, then the employee concerned should immediately follow the procedures as laid out in the Grievance Policy HR006 or as outlined in Schedule A, Clause 2.5 of Greyhound Australia Pty Ltd Collective Agreement 2007.
2. If it is impractical, or if the circumstances surrounding the compliant involve a Manager/Supervisor, then the employee concerned should immediately contact the Human Resources Department.
3.As aggrieved employee may also choose to complete the written Grievance Statement and forward this to the Chief Executive Office through the Human resources Department.
4.The employee can also contact their state Anti-Discrimination Commission and the Human Rights and Equal Opportunity Commission at any time during this process for further information. The employee may also contact their Union Representative for advice.
5.A confidential investigation of the complaint will be untaken by the Human Resources Department and the appropriate Senior Manager/s as soon as possible, or at least within
24 hours of the receipt of the complaint.
6.If the complaint is substantiated, then disciplinary action will be taken against the offending employee. This action may involve a counselling, written warning, transfer, demotion, dismissals or other appropriate action, depending on the circumstances and severity of the breach.
7.Should a complaint prove to be false or misleading, appropriate disciplinary action will be taken against the complainant. This action will be as stated in point 6.
8.By following the procedures it will ensure a swift response and early resolution of any breach of this policy.”
The respondent’s policies also included an Anti-Discrimination policy (Exhibit A6) which provided:
Procedure
1.If any incident occurs in the workplace that is believed to be discriminatory, the employee concerned should immediately follow the procedures as laid out in the Grievance Policy HR006 or as outlined in Schedule A, Clause 2.5 of Greyhound Australia Pty Ltd Collective Agreement 2007.
2. If it is impartial, of if the circumstances surrounding the complaint involve a Manager/Supervisor, then the employee concerned should immediately contact the Human Resources Department.
3. An aggrieved employee may also choose to complete the written Grievance Statement, which is located on the Intranet under forms and forward this to the Chief Executive Officer through the Human Resources Department.
4.The employee can also contact their state Anti-Discrimination Commission or the Human Rights and Equal Opportunity Commission at any time during this process for further information.
5.The Human Resources Department and the appropriate Senior Manager/2 will undertake a confidential investigation of the complaint as soon as possible, or at least within 24 hours of the receipt of the complaint.
6.If the complaint is substantiated, then disciplinary action will be taken against the offending employee. This action may involve counselling, written warning, transfer, demotion, dismissal or other appropriate action, depending on the circumstances and severity of the breach.
7.Should a complaint prove to be false or misleading, appropriate disciplinary action will be taken against the complainant if required. This action will be as stated in point 6.
8.By following the procedures it will ensure a swift response and early resolution of any breach of this policy.”
On 4 August 2004 the respondent sent a letter to the applicant confirming his appointment and in summarising the main terms and conditions governing his employment. That letter from the respondent contained the following:
“The terms and conditions of your employment with the Company are bound by the McCaffertys’ Certified Agreement 2004. Please read the Agreement carefully to ensure you fully understand this document. We have summarised the main terms and conditions of your employment as follows:
Industrial Instrument: McCaffertys’ Certified Agreement 2004, Schedules A & B
…
Position: Coach Captain
…
Termination: Notice of termination by either party will be as per McCaffertys’ Certified Agreement 2001, Part 2, Terms and Conditions of Employment, Clause 2.3 Termination.
…
I hereby agree to be bound by the terms and conditions of this letter of appointment. Further, I will ensure I retrain a copy of the letter of offer and return this signed original to the Human Resources Department within 7 days.”
The applicant signed this letter on 11 August 2004.
On 8 July 2006 the applicant’s driving licence was suspended by Vic Roads due to concerns about his fitness to drive[6] during which time he took both paid and unpaid leave.
[6] Exhibit R1 paragraphs 8 & 9 affidavit of L Johnstone filed 15 February 2008
Following the reinstatement of his licence on 15 August 2006, the applicant returned to work and continued to be rostered as a coach captain by the respondent.
On 12 and 14 September 2006 the vehicle the applicant was driving recorded a total of 3 overspeed events which generated an overspeed notice.
On or around 11 October 2006 the applicant provided the respondent with a medical certificate which restricted the hours he could be rostered for duty.
On 9 November 2006 the vehicle driven by the applicant recorded another overspeed event which generated an overspeed notice.
As a result of these overspeed events the applicant was issued with request to respond to the overspeed notices.
The applicant responded to these overspeed notices in late November 2006. His responses were that ‘Appear’ does not constitute a violation of the Road Traffic Act. He was advised by the respondent his responses were inadequate.
On 29 November 2006 the applicant attended a doctor and obtained a medical certificate which continued the existing restrictions on the hours that he could drive.[7]
[7] Exhibit A4 annexure O affidavit of B Randall filed 25 January 2008
By that time the respondent had already directed the applicant to attend a disciplinary meeting on 30 November 2006. At that meeting where he brought a witness, the applicant had the allegations of overspeeding put to him, was given an opportunity to respond and that response was considered. Offers had been made when queries about the speed were raised to check the speedometer but these weren’t taken up. There were no allegations those overspeeds occurred because of faults in the coaches.
The applicant was issued with a written warning which made clear any further speeding could result in the termination of his employment.[8]
[8] Annexure MM11-MM12 Exhibit R2
In March 2007, the shift for the coach service the applicant drove was changed to accommodate operational demands by half an hour.
The applicant subsequently attended his own doctor and another doctor nominated by the respondent who confirmed the applicant could continue to be rostered for duty as a coach captain subject to a restriction on the hours.
On 2 May 2007 the vehicle the applicant was driving recorded three overspeed events. One of those overspeed events recorded the applicant driving at 112km/hr for 25 seconds.
As a result the applicant was issued with request to respond to the overspeed notice.
The applicant was asked for a response, which he provided as “Driver fatigue”. This was deemed not satisfactory to the respondent.
The applicant was advised there was to be a meeting to deal with the over speed notice and his response. The applicant had a witness (his solicitor) accompany him to this meeting on 13 June 2007 was advised of the allegations against him given an opportunity to respond, that response was considered before he was told his employment was to be terminated for serious neglect of duty.
Evidence
Mr Beveridge
Mr Beveridge gave evidence he had been employed as a coach captain for seven years with the respondent. He acknowledged having received overspeed notices whilst working for the respondent.
He agreed that coach captains employed by the respondent had an obligation to explain incidents and to be honest. He acknowledged the overspeed notices he had received whilst working for the respondent were probably due to misjudgements on his part and he gave evidence of what he did when he received overspeed notices.
Mr Beveridge gave his evidence in a straightforward manner. He was willing to make concessions in cross examination. By way of example he conceded it would have been reasonable for him (and for any driver) if there had been a problem with the buzzer or speedo on a coach to have notified the respondent of same. He also conceded that his only knowledge of the reasons for and circumstances behind the termination of the applicant’s employment was based entirely on what he had learned from the applicant.
Mr Nelson
Mr Nelson gave evidence acknowledging that his employment with the respondent came to an end in circumstances which he believed were unfair. In relation to Mr Nelson the respondent had said:
“156. …The respondent submits that no account should be given (sic) the evidence of Nelson. In regard to the only report proffered by way of annexure to his affidavit of a driver report identifying an alleged failure with the buzzer, the witness agreed that it had not been written by the driver but added by him under his own hand.”
Mr Nelson acknowledged he had not been involved in the events leading up to the applicant’s termination, that he had amended driver reports from others which he had attached to his affidavit and sought to rely on in his evidence. It was clear from his evidence that he continues to harbour considerable enmity towards the respondent concerning the circumstances around his termination which involved assault allegations being made against him. Given the above his evidence was of little assistance to the Court in determining the applicant’s claims.
The applicant
The applicant gave evidence that the respondent had known that he had type 2 diabetes when he was employed, had maintained him in his employment when his driving license was suspended in 2006 due to his medical condition and had accommodated the changes to the shifts he could work as a result of his medical condition.
He acknowledged the overspeeding notices he received for incidents in 2006. He agreed that after being warned for those incidents he continued to work the restricted hours introduced to accommodate his medical condition for some time. He agreed he continued to work that roster without any threat from the respondent or inference that his employment was at risk because of this.
The applicant agreed the change in the roster for the coach service he drove in early 2007 was “not in any way” to impinge on his capacity to work. He agreed he had presented a certificate to the respondent which he had instructed his doctor to amend and having done so the respondent asked him to attend Dr Eaton who concurred with his capacity to work the amended roster.
He confirmed the evidence contained in his affidavit that he believed that he was being set up by the respondent in relation to the overspeed incident in May 2007, but acknowledged he never raised this in the meeting on 13 June 2007. In cross examination the applicant sought to explain away the conflict between his response to the overspeed notice of “Driver fatigue” as one he believed to be correct at the time of filling out the form and his claims after the event he believed this “incorrectly”. The applicant did not explain why he believed this incorrectly.
The applicant agreed in cross examination that he remembered the respondent had taken issue with statements made by or on his behalf at the meeting on 13 June 2007 that the VDO instruments hadn’t been working properly and that the response to that statement had been if that was the case the overspeeds would have been “more consistent throughout the service”.
The applicant agreed he had not reported defects in the functioning of the speed warning buzzer or speedo of the coach he had been driving on 2 May 2007 or raised it at the meeting on 13 June 2007. There had been offers made to check the speedometers on the coaches the applicant drove in 2006 (when he had been warned for overspeeding and questioned the result) but these hadn’t been taken up. The applicant asked the Court to accept he did not raise a claim that the buzzer or speedo was not working on the coach he was driving on 2 May 2007 at the meeting on 13 June 2007 where he knew his employment may be terminated, as he was “surprised”.
The applicant agreed the respondent had said due to the “company’s duty of care for both driver and passengers” the main concerns that arose from the incident the subject of the overspeed notice in May and his explanation, were speeding and fatigue.
The applicant agreed he hadn’t asked for the coach he drove at the time of the overspeed notice to be checked and that he wasn’t saying the VDO system wasn’t “totally accurate”. When asked in cross examination to comment on the VDO system the applicant’s position was he didn’t have anything to do with the VDO system and he didn’t know what was being recorded.
The applicant asked the Court to accept he didn’t put in his response to the overspeed notice “was unaware buzzer not sounding” as he believed that was an unacceptable answer. The applicant was unresponsive in cross examination when asked given the position he adopted why he hadn’t said at the meeting on 13 June 2007 (when he knew his employment could be terminated) he had never seen the speedo record that speed or heard the buzzer sound during the service to which the overspeed notice related.
The applicant agreed that neither he nor his solicitor argued against the provision of the notice of termination in the meeting on 13 June 2007 by alleging that the termination was in truth occasioned by the restrictions on his rostering due to his disability.
The applicant admitted in cross examination that prior to the commencement of these proceedings he had never suggested the overspeed notices were false. He agreed that many of the allegations he now made against the respondent were issues he had raised only after the termination of his employment.
Overall the applicant’s evidence, given his admission referred to above, left the impression that it had been recreated after the event with a view to bringing a claim capable of falling at a prima facie level under the rubric of the unlawful termination provisions of the WR Act.
His failure to explain matters and the inherent implausibility of others left doubts over the veracity of his evidence in relation to key events.[9]
[9] see para 106 of respondent’s submissions
In summary much of the applicant’s material related to his grievances (and those of other disaffected former employees) against the respondent which he candidly acknowledged in cross examination were only raised after the termination of his employment. Save for Mr Beveridge who gave his evidence in a direct and candid manner I have reservations about accepting the evidence of the witnesses for the applicant and am unable to accept it where it is in conflict with that given by witnesses for the respondent.
The respondent
In contrast I found the witnesses called by the respondent to be credible witnesses and I accept their evidence.
Ms Magennis and Ms Johnstone gave evidence of their involvement in events up to and including the termination of the applicant’s employment. The evidence led by the respondent outlined a history of incidents involving the applicant culminating in the termination of his employment.
Ms Johnstone
Ms Johnstone was the respondent’s regional manager at the relevant time. It became clear whilst Ms Johnstone was being cross examined that she had included in her affidavit notes of meetings including the termination meeting on 13 June 2007 which she admitted were not her own. These were notes taken (over the phone) of the meetings she attended.
Ms Johnstone was cross examined. She acknowledged the issue of the accuracy of the VDOs and speedometers generally was raised at the meeting. Ms Johnstone’s evidence was, as a participant in the meeting (and not I note the decision maker) she was concerned about the applicant’s response to the overspeed notice, about what was contained in it but she could not tell the applicant what to put in it and she had to take what he had put in at face value.
It is an entirely different thing to suggest as the applicant repeatedly sought to do in submissions that Ms Johnstone agreed the respondent failed to follow its own counselling and disciplinary policy. This was not the only attempt by the applicant to recast the evidence in submissions. The applicant had submitted:
“10. Crucial admissions by Ms Johnstone were:
· that Greyhound’s attitude at the June 13 dismissal meeting was that Brain (sic) Randall could not have been fatigued [Transcript Page 142 lines 1 to 5];
· that Greyhound’s assertion that he was driving while fatigued was based purely on his statement form [Transcript Pages 143 lines 31 to 44, 144 lines 1 to 15, 145 lines 36 to 45, 146 lines 1 to 28 and 149 lines 30 to 38];
· that Brian Randall did not assert at the June 13 meeting that he had been fatigued [Transcript 143 lines 4 to 10];
· that Greyhound had no evidence of any of the driver fatigue factors listed in the Greyhound Driver’s Manual [Exhibit R 2 Annexure 2 page 45] – other than the three brief overspeeds [ and thus (sic) on her interpretation his speed became ‘variable’] [Transcript Page 144 line 26 to page 145 line 15];
· that no information was sought from the passengers [whose lives Greyhound was claiming were at risk][Transcript Page 145 line 20 to 40]; and
· that no investigation, follow up or questioning of any kind was undertaken [Transcript Page 146 lines 14 to 28, Page 147 lines 20 to 22, Page 149 lines 18 to 24 and Page 150 lines 27 to 32].
·that Greyhound failed to follow its own counselling and discipline policy [Transcript Page 146 line 41 to Page 150 line 32”[10]
[10] Para 10 Applicant’s submissions
The applicant repeated the same submission at paragraph 153 and 174 of his submissions. The applicant did not put that case to the respondent’s witness who made the decision to terminate. Moreover the applicant’s submissions in this regard appear to misunderstand the evidence, the relevant policies, the issues that were the subject of the investigation and meeting on 13 June 2007.
In any event as the respondent submitted:
“116It was permissible for Ms Johnstone to tell the applicant that fatigue could not have been an element of his speeding given he had just had a RDO and had had (sic) been recorded as taking his scheduled breaks during the course of his service. She was entitled to act on facts known to her and to question the veracity or reliability of the explanation furnished. This she did.
117Whilst Ms Johnstone’s evidence was that she proceeded on the explanation furnished to Greyhound based on the applicant’s written response she responded when it was put to her in cross examination that she wasn’t interested in an explanation by saying that ‘He didn’t give me an explanation’ The cross examiner then asserted ‘But he didn’t assert he was fatigued, did he, other than on the form? –On the form, yes, he gave it on the form’ And at the meeting, he didn’t did he? –I can’t recall.
…
200The applicant relies upon certain answers in evidence given by Ms Johnstone, to support the contentions that the respondent was uninterested in the applicant’s response or in the truth of the matter. Indeed the evidence of the extent of the matters put and explored and the adherence to the provision of procedural fairness was exemplary. The first and most notable is that it is a matter for the Court and not the parties to render judgment on the sufficiency of the investigation of the matter. Second, and assuming for the sake of argument Ms Johnstone was content to rely on the reason given by the applicant on his form, it may be asked, why was she obliged to do more. The evidence identifies that there was a number of questions asked of the applicant about the circumstances that surrounded his fatigue and the reliance upon the speed recorded and in particular the most lengthy of the
3 recorded overspeeds that the applicant was being spoken to about. Third Ms Johnstone was only one of a number of personnel from Greyhound to whom fell the consideration of and decision making about the matter. Ms Magennis who hold the position Vice President Human Resources and Industrial Relations and who was present at the meeting gave the following affidavit evidence (paragraph 57) and about which not one question was asked in cross examination…”
It was clear that Ms Johnstone found the experience of giving evidence trying. However I am satisfied she was doing her best in difficult circumstances. Those circumstances included that the cross examination of Ms Johnstone was conducted in what at times was a querulous manner and so much is clear from the following exchange:
“ His position was that, “Really I’m not sure if I was fatigued. I don’t remember that far back.” That was what he was putting to you, wasn’t it? –I don’t know what he was putting to me. I can only go on what was written down.
So you were only going on what was on the form?—That’s right.
And you weren’t really interested in what else he might be saying to you at the meeting?---I asked for a statement and that was the statement he gave me.
Okay, and you weren’t really interested in any alternative explanation that he might offer at the meeting were you? He didn’t give me an explanation.
But he didn’t assert he was fatigued, did he, other than on the form? ---On the form, yes, he gave it on the form.
…
Now, what evidence do you have that Brian was fatigued?---The evidence that he wrote himself.
…
And no one in Greyhound rang any of them (the passengers) to see if Brian was hallucinating and wandering around the road?---There was no need. Brian said himself he was driver fatigued.
Brian had put it on the form? -That’s right.
Brian had put it on the form. Do you think you have some obligation to make inquiries? --I didn’t think Brian was lying when he put it on.
You didn’t think Brian was lying?-No. I took him on face value.
…”
Having reread the transcript and having regard to the evidence as a whole I am unable to accept the applicant’s submissions that Ms Johnstone accepted the respondent hadn’t investigated the matter, failed to follow its own counselling procedure or that her evidence was capable of grounding the findings the applicant submitted were open.[11]
[11] see for example para 10, 153 and 174 of applicant’s submissions
There is also the matter that the applicant’s solicitor failed to put many of the allegations made in submissions to all the respondent’s witnesses. As the respondent submitted:
“122 It is incumbent upon those persons who practice as advocates before the Courts and to whom is conferred the privileges of audience to adhere to the fundamental tenets of fairness. The applicant’s solicitor, rather than complying with the obligation of “puttage” in regard to the evidence of Ms Magennis, has instead determined to advance by way of submission, a case that was never put to Ms Magennis or which she had the opportunity to meet…
…
201 The respondent presented Ms Magennis for cross examination. In regard to her affirmative evidence that it was she who recommended the termination and did so against the background of previous speeding and the present circumstances that combined speed and fatigue, she was asked not a single question. Thus the respondent submits that there is no evidence that the respondent failed to investigate the revealed circumstances of the incident and failed to have regard to the comments made by the applicant and on his behalf. The evidence of Ms Magennis is that collectively the respondent did so and her evidence was never challenged”[12]
[12] para 122 -201 of respondent’s submissions
Ms Magennis
Ms Magennis was the respondent’s Vice President Human Resources/Industrial Relations at the relevant time. Ms Magennis’s evidence was that at the meeting on 13 June 2007 the applicant began by saying he was tired on the day of the overspeeds:
“45.Mr Randall explained that he was tired as he had been attending medical appointments the whole of the day prior to the overspeeding. The day prior was in fact a rostered day off for Mr Randall. I regarded Mr Randall’s responsibility as one which ensured that he was rested for his shift the next day or, if this proved impossible then to call in sick, or if fatigue was experienced during the operation of his service, then to notify Greyhound and call for the dispatch of another driver.
46 Ms Johnstone explained that she was particularly concerned because Mr Randall had recorded overspeeds previously and she referred to Greyhound’s obligations to passengers as well as drivers and other road users.
47 I considered it particularly serious that one overspeed lasted 25 seconds during which time, as Mr Randall stated in his response, he was experiencing fatigue. Potentially any period of fatigue places a driver and others at risk but the period in question of 25 secs made the issue starkly apparent to me. I was aware that the service operated by Mr Randall had a passenger manifest of 16 people.
48 Mr Randall responded to the issues raised by Ms Johnstone. The first was to the question the validity of the instruments that record coach movements. Ms Johnstone’s suggested that if this was the case, more overspeeds would be likely to have occurred consistently over the duration of the trip. Mr Randall did not press this issue any further.
49 Mr Randall then suggested that it may have been hills which caused the overspeeds. This is not a satisfactory explanation for overspeeds as it is a driver’s responsibility to obey traffic regulations at all times, and it is particularly dangerous to overspeed when travelling down hill especially if fatigued”[13]
[13] Exhibit R2
Ms Magennis said in her evidence:
“54. The meeting was adjourned and Ms Johnstone and I considered the responses. We considered that Mr Randall had not given a reasonable or acceptable response to the overspeeds, and had occurred previously he had failed to make a proper statement in explanation of the overspeeds. We also considered the issue of continuing to drive whilst fatigued. There was no evidence of Mr Randall attempting to manage his driver fatigue by either pulling off the road or notifying Greyhound that he was fatigued and needed a replacement driver, as is required if a driver suffers fatigue.
55.These failures constituted a serious neglect of duty which potentially endangered not only Mr Randall’s life but also the lives of passengers on the coach and other road users.
…
58.We reconvened the meeting and Ms Johnstone asked Mr Randall if he had any further information to add in response. Mr Randall stated that he did not.
59. Mr Randall was advised that in light of the three overspeeds, the failure to manage fatigue whilst driving a service, the inadequacy of Mr Randall’s response to the overspeeds, his history of overspeeding and the 2 warnings he had received on 30 November 2006, and Greyhound’s duty of care to its passengers, a decision had been taken to terminate his employment. Termination of employment was for serious neglect of duty…”[14]
[14] Ibid
Ms Magennis gave evidence of instances over the last 4 years when drivers had been subject to disciplinary action and/or termination of employment for reasons which included overspeeding.[15]
[15] (MM1-MM5) – R3 affidavit filed 28 February 2008
Ms Magennis was asked in cross examination about the documents provided regarding action taken against other employees.[16] Her evidence was, and showed, the respondent treated other employees in the same manner as it had with the applicant and addressed overspeeding and failure to provide an adequate explanation to an overspeed notice as a disciplinary matter.
[16] Annexure MM1-MM5 Exhibit R3
Ms Magennis, who was the decision maker, was not cross examined on any fact in relation to the conduct of the meeting on 13 June 2007.
As the respondent submitted:
“…Perhaps even more remarkably Ms Magennis was not cross examined by the asking of a single question on behalf of the applicant of the sole issue by which the applicant was able to enliven the jurisdiction…it was not contended in cross examination of Ms Magennis that any part of her evidence was at odds with that of Ms Johnstone.”[17]
[17] Para 120 of Respondent’s submissions
Finally, Ms Magennis gave evidence that:
“The reasons for Greyhound’s termination of Mr Randall’s employment were related to his performance and conduct as a driver. Greyhound did not terminate Mr Randall’s employment for the reason or for reasons including his medical condition. To the contrary, Greyhound repeatedly made reasonable accommodations for Mr Randall’s medical condition during his employment.”[18]
[18] Para 61 Exhibit R2
Other witnesses
Mr MacPherson gave evidence and was cross examined. Mr MacPherson is responsible for technical support of the speed monitoring devices fitted to the respondent’s vehicles. He gave evidence that the VDO system monitored driver and vehicle performance and records, amongst other driving violations, overspeeding.
Mr MacPherson gave evidence that on the basis of his tests the vehicles operated by the applicant on 12 September 2006, 14 September 2006,
9 October 2006and 2 May 2007 recorded overspeed events and did so accurately. He was not challenged on that evidence. Mr MacPherson’s evidence was that vehicles operated by the applicant accurately recorded speed.
I accept the respondent’s submissions that:
“124…Expert evidence was given about the (VDO) system, its capabilities and limitations by Marc McPherson an employee of Sgesco-Max Instruments the company responsible for the installation of the system into the respondent’s coaches. The VDO system records a suite of information for each journey taken by a coach and in particular this includes, date and time, distance, engine hours, vehicle speed, engine speed, trip start and end time, trip depart and arrive time and the vehicle identification and event times. An event includes a violation such as overspeeding....When an overspeed occur, that is to say when the coach exceeds 100kph a warning buzzer installed in the coach and connected to the VDO system will trigger a buzz that is audible to the driver. Mr McPherson’s evidence was that the VDO systems in each relevant coach driven by the applicant and which recorded overspeeding events were operating correctly on the respective dates the overspeeding was recorded.”
Mr Hoffman, the respondents’ operations manager gave evidence.
He was not required for cross examination. He gave evidence about the accreditation requirements the respondent was required to meet, as a public transport operator, the conditions that can be imposed on such accreditation and what the respondent had done to comply with those requirements including installing driver and vehicle monitoring systems and why this was important to meet those requirements.
Approach to unlawful termination
102.Section 663 of the WR Act provides for applications to the Court for orders under s.665 in respect of alleged contraventions of s.659 of the WR Act.
The Court’s jurisdiction when dealing with a claim of contravention of s.659 is subject to s.663(5) which states:
“(5)An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 659, 660 or 661 may not be made to a court unless the applicant:
(a)has received a certificate under subsection 650(2) regarding conciliation of an application made wholly or partly on the grounds of the alleged contravention; and
(b)has elected under section 651 to begin proceedings in that Court for an order under section 665 in respect of the alleged contravention.”
The applicant contended that the respondent terminated his employment by reason or for reasons which included disability in breach of section 659(2)(f) of the WR Act which provides:
“(2) Except as provided by subsection (3) and (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
…
(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
…”
A certificate under s.650(2) of the WR Act is required from the AIRC to invoke this Court’s jurisdiction. A certificate was issued by the AIRC on 30 July 2007 pursuant to s.650 and the details of the dates of the filing of the present application have already been set out above.
By virtue of s.664 of the WR Act, the respondent bears the onus of proving that it did not terminate the applicant’s employment for a prohibited reason, or for reasons that included a prohibited reason. Section 664 reads as follows:
“In any proceeding under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:
(a)it is not necessary for the employee to prove that the termination was for a proscribed reason; but
(b)it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).” (Emphasis original)
Section 664 is substantially identical to s.170CQ of the WR Act as it stood prior to the Workplace Relations (Work Choices) Act 2005. The authorities on section 170CQ and the predecessor provisions are therefore relevant: (see e.g., Laz v Downer Group Ltd [2000] FCA 1390; (2000) 108 IR 244 (‘Laz’) at 255 per Moore J and Bahonko v Sterjov [2007] FCA 1244 at 100 (“Bahonko”)).
In Bahonko Jessup J said:
“The jurisprudence to which I refer, of course, is that which made it part of the prosecutor’s (or applicant’s) case to prove as an objective fact that the circumstances alleged to constitute the basis of the ‘reason’ to which the reverse onus section applied.”
The reverse onus can be discharged on the conventional balance of probabilities. A respondent normally adduces evidence that attempts to explain the rationale behind dismissing the applicant. In cases of this sort the respondent will be called on to demonstrate that the reason for the termination did not include the alleged proscribed reason.
This usually will be the only direct evidence the Court will receive on that issue. If that evidence is accepted as true, then the applicant’s case will fail. The reserve onus of proof does not require the Court to view the evidence of the respondent with scepticism or suspicion. Usually, the respondent’s evidence is tested by cross-examination to assist the Court to decide whether or not to accept the respondent’s case.
110.Section 665(1) of the WR Act provides that, if the Court is satisfied that an employer has contravened s.659 of the WR Act, the Court may make one or more of the following orders:
“(a) an order imposing on the employer a penalty of not more than $10,000;
(b) an order requiring the employer to reinstate the employee;
(c) subject to subsections (2), (3), (4) and (5), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate;
(d) any other order that the Court thinks necessary to remedy the effect of such a termination;
(e) any other consequential orders.”
In relation to this part of the applicant’s claim the fairness or unfairness of the termination are not issues for this Court. If it was an unfair dismissal application it would have been heard in the AIRC. The case that the respondent has to meet in relation to this claim is whether the termination of the applicant’s employment was unlawful.
There are three elements that must be established to succeed in a s.659(2) action:
a)the Respondent terminated the employment of the Applicant (termination of employment);
b)the Applicant had a particular attribute described in one of the paragraphs in subsection 659(2) (proscribed attribute); and
c)the Respondent terminated the Applicant’s employment by reason of the Applicant having the attribute, or for reasons that included that attribute as an operative reason (proscribed reason).
The parties made detailed submissions on the construction of s.659 and s.664 in the context of this particular matter. The respondent’s submission (by way of an analysis of s.664) was set out at paragraphs 40-52 of the submissions filed 12 May 2008. In reply at paragraph 15-16 of his submissions filed 21 May 2008 the applicant took issue with that analysis. Both parties referred to the decision of Moore J in Laz v Downer [2000] FCA 1390.
In his submissions the applicant described the respondent’s analysis on this issue as “a sort of Hegelian dialectic”. If by that the applicant sought to suggest the respondent’s submission were internally inconsistent much of the applicant’s case suffered from the same vice.
The Respondent had submitted that:
“54. The question posed by s 659 is not whether an employer terminated the employment of an employee who had a physical disability but whether an employer terminated the employment of an employee with a physical disability for the reason of (ie because) or for reasons including the reason of physical disability.
55. The uncontested evidence is that the respondent gave employment to the applicant in the full knowledge that he suffered from diabetes. There was no evidence that from the time of the commencement of his employment until he presented with a doctor’s certificate in September 2006 the applicant’s diabetes impacted upon or impeded the discharge of his full range of employment duties.
The respondent submits that if the allegation were merely that the applicant was terminated because of his diabetes then there exists no evidence that the applicant’s diabetes constituted a physical disability in his employment and the applicant’s case would of necessity on this basis fail.”
The respondent made this submission:
“…because it is not the existence of the physical disability that appears the gateway to unlawfulness under s.659 but rather the consequences of the disability occasioned by it or its characteristics. The applicant proved able as a diabetic for many years to discharge his employment and able to do so for months after becoming insulin dependent diabetic[19]”
[19] Paragraph 69 Respondent’s submissions
The Court was not referred to any case that considered the particular issue raised by the parties in submissions on this matter in the context of the WR Act. However, the decisions that the Court was referred to lead to the decision of Gavlin v Renito Pty Ltd [1999] FCA 1005 which concerned the question of whether an employee had been terminated for reasons including physical or mental disability. In that case Ryan JR indicated, while it was not necessary to decide that he would be:
“…likely to find that an applicant has no onus to establish…knowledge by the respondent’…”[of the disability] [20]
[20] Gavlin v Renito Pty Ltd [1999] FCA 1005 at paragraph 32
I am mindful that for the purposes of an application alleging a breach of s.659(2) of the WR Act the applicant must establish in this Court, that:
a)their employment was terminated; and
b)the facts sufficient to prove as an objective fact the proscribed reason relied on in that subsection.;
before the onus shifts, pursuant to s.664, to the respondent to prove that the applicant’s employment was not terminated for a reason or for reasons including that proscribed reason (see Bahonko v Sterjov [2007] FCA 1244 at 100).
The respondent contended that the applicant bore the onus to establish that the disability impacted on his ability to carry out duties and it was only then that the onus shifted. Put simply the respondent contended, whilst implicitly acknowledging there was evidence of the applicant’s disability, that the applicant bore an onus to identify how that disability adversely impacted on the respondent. The Court was not referred to any direct authority for the respondent’s submission.
I am not satisfied that qualification could be made or is necessary to make in this case. In any event I can see no warrant, on the authorities referred to by the respondent, for the applicant to prove anything other than the proscribed reason, in this case a physical disability. Notwithstanding the respondent’s submissions at paragraph 72 and given “the real reason for a dismissal may be locked up in the employer’s breast” I don’t accept that part of the respondent’s submission. It is the applicant’s case that it was by reason of his disability that the termination occurred. However, as the respondent submitted there is no evidence that the applicant’s diabetes or its consequences was an issue at the time of the overspeeds in May 2007 or at the meeting on 13 June 2007 for the respondent. This is a matter that can be weighed in the balance when determining whether the respondent has met the burden of proof.
In this case then I will proceed on the basis that the applicant’s employment was terminated and that he had a physical disability. I will determine the matter on the basis that the question before the Court, and the case the respondent must meet, is whether the applicant’s employment was terminated for that reason or for reasons including that reason. For the reasons set out below I am comfortably satisfied on the balance of probabilities it was not.
Consideration of claim of unlawful termination
The applicant’s claim was that his employment was terminated for a prohibited reason, specifically a physical disability in breach of s.659(2)(f).
The applicant in written submissions filed on his behalf noted that it was common ground that he was an insulin dependant diabetic and that this had led to the need for there to be rostering restrictions imposed to accommodate his condition. The applicant’s submissions were to the effect that:
a)the respondent’s actions in terminating his employment for serious neglect of duty were not warranted;
b)whilst he had conceded during the interview on 13 June 2007 that despite what was contained in his response to the over speeding notice fatigue “may not have been the explanation”, the respondent appeared uninterested in pursuing this and “with hindsight…[the respondent] seemed to have determined that this was the issue they would use to terminate [his] employment”; and
c)the efficacy of respondent’s speed monitoring equipment, the delay in provision of overspeed notices and what was alleged to be differential treatment of other employees who received overspeed notices all undermined the respondent’s stated reason for termination.
Given this, the applicant submitted, the respondent’s stated reasons for the applicant’s termination were not the reason and there must have been for some other reason. Accordingly, it was submitted that the respondent had failed to discharge the burden of proof provided for in s.664 of the WR Act.
The respondent denied that it terminated the applicant’s employment by reason of, or for reasons which included the applicant’s physical or mental disability. The respondent contended the applicant was terminated for serious neglect of duty, for exceeding legal speed limits and for driving while fatigued. The respondent contended the applicant had a prior warning for exceeding speed limits and for failing to follow directions. The respondent contended that the continued failure by the applicant to give a reasonable or valid response to the overspeeds, his failure to cease driving whilst fatigued, continued overspeeding and failure to make a proper statement in explanation of the overspeeds were serious neglects of duty.
In his opening Counsel for the respondent said:
“We contend that the revealed history identifies that this employer took the applicant on aware of his disability. It took the applicant on and provided him with work, no different from other drivers. It took the applicant on and maintained him in circumstances where the applicant found himself in circumstances where the applicant found himself in an open ended position of being unable to perform his duties due to the suspension of his heavy vehicle licence by VicRoads in July 2006.
We contend that the commendation we urge the court to find in regard to the treatment of my client towards Mr Randall is exemplified, not exclusively by but in part by, Mr Randall’s own evidence that Ms Johnstone telephoned him and said words to the effect that the job was there for him in circumstances where as a matter of legal right, if not practical discretion, it was open to the employer after a period of 14 days, pursuant to the provisions of the certified agreement, to dispense with the applicant’s employment. It did not do so. When the applicant returned, that is to say when VicRoads reinstated the licence and the applicant returned to duties, the applicant continued in accordance with operating the roster that applied to him. It is important we contend in the discharge of our onus, that is to say to bat out of the ballpark any evidentiary basis that suggests that a reason or reasons included a prohibited reason for termination.”
The applicant had deposed that he believed the reason for termination was his insulin dependent diabetic condition. However, he had also deposed that the respondent was aware he suffered from diabetes when he commenced employment.
In the applicant’s affidavit, and in his evidence before the Court, the applicant acknowledged the respondent had maintained his employment despite extended absences due to his medical condition and the suspension of his licence by VicRoads in 2006.
The applicant in his affidavit acknowledged having been told previously his responses to overspeed notices were unacceptable. It was clear that he had received warnings for failing to follow directives and overspeeding. Those warnings provided that his employment may be terminated for further occurrences of this conduct or overspeeding.
In his affidavit the applicant deposed that his recollection was that it may have been indicated in the meeting on 13 June 2007 that the driver’s manual contained provisions on fatigue. The applicant denied having received a copy of that manual. He maintained that position in his evidence but agreed he had never advised the respondent he had not received a copy prior to or at the termination meeting on 13 June 2007.
The applicant acknowledged in cross examination that at the meeting on 13 June 2007 the overspeed notices were raised, that despite his position in his affidavit being it would have been extraordinary if the buzzer had not sounded he did not say to the respondent that he did not hear the buzzer at the time of the overspeeds at that meeting.
He confirmed he did not believe the overspeed incidents were grounds for his termination. He acknowledged he did not say at the meeting the overspeeding allegations were not true or that the investigation was inadequate or that the stated reasons given for his termination masked the alleged “real” reason for his termination at that meeting on 13 June 2007.
He agreed the allegations of overspeeding were put to him, that the respondent’s representatives adjourned the meeting and reconvened after a break, asked him if he had anything else to say before coming to a decision to terminate his employment. He agreed the respondent’s representative had made clear their concerns about speeding, the nature of his response(s) to the matters raised with him and his claims regarding fatigue. He acknowledged that the respondent’s representatives had indicated they believed his behaviour amounted to serious neglect of duty and that he would be terminated as a result.
Reduced to its essence the applicant’s case in relation to this part of his claim was that:
a)he was summarily dismissed for serious neglect of duty; and
b)that the reasons relied on by the respondent did not warrant that action; and
c)there “has to have been some other reason”; and
d)an inference can be drawn[21] that his disability was a reason, if not the reason, for his termination.
[21] The applicant relied on the chronology at para 131 of his submissions
The applicant submitted he had been singled out for different treatment and referred to Barhoum v All Districts Coating [2008] FMCA 172.
In that case Nicholls FM found the employer had not discharged the burden of proof under s.664 and that the employee had been terminated for a proscribed reason.
At paragraphs [29] to [51] Nicholls FM said:
“29. The respondents submit that the termination of the applicant’s employment stemmed from the decision that was made that the second respondent cease trading, due to the various difficulties that had been encountered, and that this then led to the termination of all employees including the applicant. In these circumstances, whether or not the applicant was absent due to injury, was not relevant to, and not part of, the termination.
30.Even accepting the evidence of the third respondent that the decision to cease trading of the second respondent was taken sometime in late 2005, and certainly by February 2006, which predated the latest and relevant injury suffered by the applicant, this is not, in my view, sufficient, in all the circumstances of this case, to exclude the relevant proscribed reason (s.659(2)(a)) from the set of reasons for the termination of the applicant’s employment. A clear distinction can be drawn between the decision taken by the third respondent for the second respondent to cease trading (whenever that decision may have been taken) and the termination of the applicant’s employment.
31.I am persuaded by the applicant’s submissions in this regard because of (on the evidence) the view that I take about the conduct of the business involving all four respondents, the difficulties that I have with some relevant aspects of the evidence of the third respondent, and that the applicant was dealt.
…
49.From Mr Habibeh’s evidence, letters were sent to the four other employees (these are reproduced at annexures G, H, I and J). (The best evidence is that these were all other employees involved, other than for Mr Habibeh himself, who for some purposes was also named as an employee of the second respondent). The wording of the letters sent to , in effect, all the other employees is identical:
·“We wish to inform you that All Districts Coating (Aust) Pty Ltd ABN: 66 084 767 895, will cease trading at the 13th of April 2006 and close down.
For any further information please do not hesitate to contact me at the above numbers
….”
50.What is immediately noticeable as between the letter sent to the applicant and the letter sent to all the other employees, is that while the word “termination of employment,” or words to that effect, are not directly used in the letter to the applicant, such intention is clearly implicit with the reference to an enclosed cheque as payment for notice (presumably, in context, notice of termination). Only the applicant’s letter contains such a plain inference. The letters to the other employees merely inform the addressee that the second respondent will cease trading as of 13 April 2006. There is no other evidence before the Court that the other employees were sent any other letter notifying them of the termination of their employment.
In McDonald Buchanan J considered a similar claim relying on an alleged implied term of mutual trust and confidence.
His Honour expressed reservations that such a term would meet the tests for implication in B.P Refinery (Westernport) Pty Ltd v Hasting Shire Council (1977) 180 CLR 266 at 283 but said in any event:
“…However that may be, in many cases in which the suggested term is sought to be invoked it will collide to some extent or another with express terms of the contract of employment. In the resent case, it would be of no avail to suggest that such an implied term restricted a right of termination in accordance with the express terms of the contract of employment.”
The duties referred to in Russell do not interfere with the right of a party to terminate the contract. The issue that gave rise to the breach of the duty of good faith in Russell was the failure by the Church to interview a witness face to face.
The ground raised in submissions on this issue was that the respondent failed to exercise prudence, caution and diligence in investigating the allegation of overspeeding.[37]
[37] see para 172-177 of Applicant’s submissions
I have already found there was sufficient evidence for the respondent to be satisfied to the requisite standard and to have come to the conclusion that it did.
The only evidence the applicant pointed to for his submissions on this issue was the assertions made regarding what could be made of Ms Johnstone’s evidence. For the reasons already referred to those submissions are not a fair or correct interpretation of that evidence and I reject them as I do the assertion that the respondent failed to exercise prudence, caution or diligence.
Contrary to the applicant’s submission Mr Macpherson’s evidence was the speed devices were accurately recording and accurately recorded the overspeeds that the applicant was confronted with and asked to explain. Neither Ms Johnstone nor Ms Magennis had put to them that they had fabricated the overspeed notices.
In the circumstances the implied duties contended for (to the extent they didn’t defer to the terms of the contract) would require the respondent to investigate the complaint and not act without proper and reasonable cause. I am satisfied that they did act with proper and reasonable cause. The respondent had no reason prior to the meeting to suspect that the applicant questioned either the occurrence of the overspeed or that his explanation of “Driver fatigue” was other than genuine.
When the veracity of the recording equipment was called into question the applicant’s allegation was interrogated and found wanting. It was clear the rejection of the applicant’s alternative explanation that was proffered at the meeting was not unreasonable as overspeeds would have been recorded across the coach service in question were that the case. This was made plain to the applicant at the meeting on 13 June 2007. Moreover the ground of fatigue was not one invented or constructed by the respondent and was one it was entitled to take at face value. The evidence is that the meeting on 13 June 2007 (which was a part of the investigation) considered the applicant’s explanations and found them wanting.
Unlike Russell in this case there was no suggestion on the evidence that the applicant had not interviewed a complainant or not done something the applicant had raised in his response or driver reports. There was no evidence having regard to what was before the respondent that ought to have suggested other reasonable avenues should be pursued or that it hadn’t made proper inquiries. The applicant’s own evidence is his explanation for the overspeeding was “Driver fatigue” but he failed to explain to the respondent then or to this Court why he says now that was incorrect.
I am satisfied that the evidence shows the respondent on a bona fide basis formed the view having received the overspeed notice, having sought an explanation from the applicant, considered that response, given him an opportunity to explain that response, brought to his attention the queries it had with that along with the concerns it was left with and given him an opportunity to explain and then considered those responses before making a decision complied with any implied duty that hadn’t already deferred to the express provisions of the contract.
In my view the pursuit of disciplinary proceedings against the applicant in good faith (and there is no evidence capable of persuading me on the balance of probabilities to the contrary) and on a proper prima facie evidentiary basis (and there is sufficient evidence here to find that is the case) could not be said to amount to a breach of any implied duty.
As the respondent submitted (and I am satisfied this is the case):
“The applicant did not prove according to the requisite standard that the allegations of speeding were made by the employer knowing them to be false or being careless as to the truth or falsity of the allegation or for the purpose of using them as a mask to hide a desire to terminate the employment because of the (alleged) adverse impact to it of the applicant’s restricted hours occasioned by his medical condition…”[38]
[38] Para 192 of respondent’s submissions
Given this, the existence of express terms of the contract upon which the respondent acted and for the reasons set out above the other claims made by the applicant that the respondent breached the applicant’s contract of employment or any implied term of trust and confidence or good faith also fail.
Breach of Agreement
In his contentions of fact and law the applicant’s position was:
“54.The Certified Agreement required the Respondent to:
[a]only terminate an employee summarily for gross misconduct as defined in clause 2.3[g] of the Agreement [clause 2.3[c][i];
[b] pay an employee an additional amount for non-standard overtime [clause 4.1];
[c]accord an employee annual leave and to pay out any accrued leave on termination [clause 5.3 and Schedule B clause 4.1];
[d]commit itself to equal opportunity in employment consistent with principles of equity and fairness and confirm to the spirit and intent of equal opportunity and anti-discrimination legislation [clause 6.1];
[e] pay an employee meal allowances where they are away from their driver base and where a meal is not provided [Schedule B clause 2.4];
55.The Respondent breached the provisions of the Certified Agreement referred to in clause 54.”
In submissions filed on his behalf on this issue the applicant submitted:
PART 5: BREACHES OF THE CERTIFIED AGREEMENT
188. Under the terms of the Certified Agreement:
[a]the Respondent could only terminate the Applicant without notice if he was guilty of gross misconduct as defined in clause 2.3[g] [see clause 2.3[c][i] of the Certified Agreement]. Clause 2.3[g] defines gross misconduct as including ‘serious neglect of duty.’
[b]if the Applicant was not guilty of gross misconduct then he was entitled to notice pursuant to clause 2.3[c][iii].
[c]the Respondent was required to confirm to the spirit and intent of equal opportunity and anti-discrimination legislation including the creation of a work environment free from discrimination [clause 6.1].
[d]the Applicant accrued leave at the rate of 4.6153 hours per week [Schedule B clause 4.1 [a]] and was entitled to be paid for unused accrued annual leave on termination [clause 5.3[g]]. There is no provision that allowed Greyhound to withhold leave payments as an offset.
[e]the Applicant was entitled to be paid for non-standard overtime i.e. hours outside the employee’s rostered hours [clause 4.1].
[f] the Applicant was entitled to be paid a meal allowance when he was away from his driver’s base and a meal was not provided at a meal stop pr accommodation arranged by the company [Schedule B clause 2.4].
189.The Respondent summarily dismissed the Applicant for serious neglect of duty claiming that he drove at speed while fatigued thus putting the lives of 16 passengers at risk.
190.There was no credible evidence that Brian Randall was driving while fatigued [as to which see Part 1 Section B].
191.Further, Greyhound well knew that Brian Randall was not driving while fatigued and was wholly uninterested in any evidence that would establish otherwise.
192.In summarily dismissing Brian Randall, the Respondent breached clause 2.3[c][i] of the Certified Agreement and also clause 2.3[c][iii].
193The Respondent dismissed the Applicant because of or for reasons which included his disability.
194.As such, it breached clause 6.1 of the Certified Agreement.
195.On termination of the Applicant’s employment, the Respondent withheld an amount of annual leave entitlements equivalent to $267.60 to cover company property not returned. It withheld this amount without authority from or reference to the Applicant [see Exhibit A4 paragraph 92 and annexure Z]. As such, it breached clause 5.3[g] of the Certified Agreement. It subsequently paid this amount.
196.The Applicant was entitled to certain payments in relation to non standard overtime and meal allowances totalling $339.70 details of which are set out in annexure AA to Exhibit A4. [Note the total underpayments claim is $602.70 but only $339.70 of this related to entitlements covered by the Certified Agreement].
197.The respondent failed to pay these amounts until just before the trial commenced [see Transcript page 10]. As such, it breached clause 2.4 of Schedule B of the Certified Agreement.”
The respondent denied it breached the Agreement.[39] The respondent’s submissions on this issue were:
[39] Para 221 of respondents submissions
“222.In relation to each of the breaches of the Agreement alleged by the applicant, the respondent contends that:
(a)It terminated the applicant’s employment after a finding that the applicant was guilty of gross misconduct by way of serious neglect of duty as defined in 2.3(g)((iii) of the agreement.
(b)The respondent paid non-standard overtime to the applicant in accordance with clause 4.1(a) of the Agreement. The respondent’s policy for claming non-standard overtime, which sets out the procedure for claiming non-standard overtime and with which the applicant was bound to comply is contained in clause 2.6 of the Agreement.
(c) At all times during the employment, the respondent provided the applicant with annual leave in accordance with Schedule B clause 4.1 of the Agreement.
(d)After the termination of the applicant’s employment, the respondent paid the applicant all accrued but untaken annual leave that the applicant was entitled to in accordance with clause 5.3(g).
(e)At clause 6.1, the respondent states in the Agreement that it is committed to equal opportunity in employment consistent with the principles of equity and fairness and conforms to the spirit of intent of equal opportunity, anti-discrimination and affirmative action legislation. The respondent did not breach this commitment in relation to the applicant. It is furthermore notable that the applicant made no attempt in his written case to identify the constituent elements if the principles of equity and fairness to which he contends he was entitled and was denied. Neither was the respondent’s witnesses called upon to meet such a case when cross-examined.
(f)In any event, however, the respondent contends that if afforded the applicant treatment amounting to equity and fairness at all times including during the disciplinary process, made reasonable accommodations for the applicant’s medical situation (including allowing the applicant to take unpaid leave when he lost his heavy vehicle licence) and rostering the applicant and other employees of the respondent around the working hours restrictions arising from the applicant doctor’s suggestion and confirmed by the respondent’s Dr Eaton and treated the applicant no less favourably as it has shown itself to have treated other employees.
(g)The respondent did not subject the applicant to any less favourable treatment of impose any detriment on the applicant because of his diabetes. The applicant has not shown the existence of any detriment afforded the applicant by reason of his diabetes.
(h)The respondent paid meal allowances and reimbursements to the applicant in accordance with schedule B clause 2.4 of the Agreement and the respondent’s “Company Travel & Reimbursement of Company Related Expenses” policy, which set out the procedure for claiming the meal allowance and which the applicant was bound to comply with as set out in clause 2.6 of the Agreement. The applicant has led no evidence to identify his compliance with the procedure. Annexure AA to the affidavit of the applicant is not evidence of compliance with company procedures.
223.As the respondent did not breach the Agreement, the applicant is not entitled to any relief.
224.Amounts paid by the respondent after the commencement of litigation and without admission of liability were expressed by it as having been made in an effort to avoid a prolongation of the hearing and in order to confine the hearing to the principal allegation concerning the termination. They do not evidence liability.”
When confronted with the respondent’s submissions the applicant’s submission in reply was:
“66.We point out that it is a matter of fact that the Applicant was not paid meal allowance and non standard overtime to which he was entitled and a proportion of his annual leave entitlement was withheld on termination. These are entitlements per se and cannot be avoided by the mere assertion of non compliance with the Respondent’s claims procedures as the Respondent appears to be contending in sub paragraphs 222[b] and [h].
67.Further, on any reasonable view of the evidence, the Applicant was not guilty of gross misconduct but was nonetheless summarily dismissed and he was terminated because of, or for reasons which included, his disability [in breach of the spirit and intent of equal opportunity and anti-discrimination legislation]. Termination is an obvious ‘detriment’ despite the claims by the Respondent in sub-paragraph 222[g].”
The applicant said in reply that the entitlements under the Agreement or otherwise cannot be avoided by the “mere assertion” of non compliance with the respondent’s claims procedures.
For the reasons set out above it is not necessary to deal with many of the applicant’s claims of breach of the Agreement as for those reasons they cannot be made out on evidence before the Court.
The evidence in this case is such that it is pellucidly clear the applicant, and those advising him, did not believe overspeeding warranted the sanction of termination. However the Agreement which governed his employment reserved to the respondent such right. The respondent’s reasons for termination, set out above, were not shaken in evidence.
In the circumstances and for the reasons set out above, the applicant’s claim that the respondents actions in terminating his employment amounted to a breach of the Agreement must fail.
The applicant had alleged that the respondent had breached its policies on Equal Employment Opportunity and Affirmative Action and Anti Discrimination.
However, there was little if any evidence from the applicant on this part of his claim. The applicant did not lead and could not point to any evidence that the respondent had failed to deal with a complaint made pursuant to those policies or a failure to follow the procedures laid down therein in relation to such a compliant.
In relation to the claimed ‘Equal Opportunity Breaches’[40] as set out above I am comfortably satisfied the respondent did not terminate the applicant by reason of his disability or for reasons which included his disability or subject him to any less favourable treatment.
[40] Paragraph 144 Applicants submissions
In relation to the ‘Summary Dismissal Breaches’[41] as set out earlier the respondent has satisfied the Court on the balance of probabilities that the applicant was terminated for serious neglect of duty.
[41] Paragraphs 146-149 Applicants submissions
In relation to the ‘Counselling and Discipline Breaches’[42] the applicant’s asserted grounds of such breaches set out at paragraph 150 of his submissions are either not made out in the evidence, have already been addressed above and found wanting or are untenable glosses on the evidence so far as the applicant relies on evidence for those assertions.
[42] Paragraph 150 Applicants submissions
Finally in relation to the other claims as the respondent’s submissions set out above make clear the applicant had either received the amounts claimed prior to the hearing, not claimed the amounts in accordance with the relevant policies procedures or failed to lead evidence to demonstrate an entitlement.
Illustrative of the difficulties facing the applicant’s claims in this regard was his evidence that in relation to non standard overtime he believed the respondent should know what the expenses he claimed were and that they had all the information they needed.
As the respondent noted in opening “the evidence that the applicant has adduced does not identify that he conformed with the obligations under [the Agreement].” It is no answer to assert they are “entitlements per se” if the conditions laid down for claiming them have not been met. On what is before me I am satisfied to the extent that they haven’t already been paid that that’s the case.
Accordingly, or to put it another way, on what is before me I cannot be satisfied that the respondent has breached the Agreement.
Negligence
In his contentions of fact and law the applicant’s position was:
“38.At all relevant times, the Respondent owed the Applicant a duty of care. That duty included an obligation to take reasonable care to ensure that it:
(a)did not act in a manner which breached agreements binding on it;
(b)did not act in a manner which breached an employee’s contract;
(c)acted in accordance with equal opportunity principles;
(d)did not act in a manner which denied an employee fairness and due process;
(e)did not terminate employment on the basis of untrue, trivial or contrived allegations or in circumstances which were harsh, unjust or unreasonable;
(f)acted on the basis of accurate information;
(g)acted on the basis of objective fact.
39.This duty of care arose from the employment relationship between the parties.
40. In breach of its duty of care, the Respondent:
(a)failed to ensure that the terms of the McCaffertys Greyhound Pty Ltd Certified Agreement were adhered to;
(b)failed to ensure that the terms of the Applicant’s contract of employment were adhered to;
(c)failed to ensure that equal opportunity principles were applied;
(d)allowed the Applicant’s contract to be wrongfully terminated;
(e)failed to take any action to preserve or restore mutual trust and confidence;
(f)failure to ensure that the Applicant was accorded due process;
(g)failed to act on the basis of accurate information;
(h)failed to act on the basis of objective fact;
(i)failed to ensure that the Applicant’s employment was not terminated on the basis of untrue, trivial or contrived allegations or in circumstances which were harsh, unjust or unreasonable;
(j)failed to monitor and controlled the actions of its human resources personnel.”
The respondent denied it breached its duty of care to the applicant. The respondent contended:
·it ensured the terms of the Agreement and the applicant’s contract of employment were adhered to;
·it applied its policies on inter alia EEO;
·it did not terminate the applicant’s employment unlawfully;
·the applicant breached the implied duty of mutual trust and confidence by serious neglect of duty;
·the applicant was accorded due process;
·the termination of the applicant’s employment was justified in accordance with the express terms of his contract of employment, the Agreement and it was reasonable and proper for the respondent to terminate the applicant’s employment; and
·there was no basis for the applicant’s other contentions on this ground.[43]
[43] see paragraph 32-33
The applicant asserted that an employer has a duty of care to provide accurate information to employees. The applicant submitted (again seeking to rely on the same facts as in the other claims) that what it asserted was the respondent’s failure to adhere to its own policies, and failure to observe the duty of good faith and fidelity would constitute negligence.
In submissions on this issue the applicant referred to the decision in Cornwell v The Commonwealth [2005] ACTSC 14 (“Cornwell”)[44].
It was the applicant’s submission:
“we can say with certainty that an employer has a duty of care to provide accurate information to employees.”
[44] Paragraph 179-184 Applicant’s submissions
In that case Mr Cornwell was employed by the Department of the Interior and the ACT Government between 1962 and 1994. In 1965, his manager advised him that he was ineligible to join the Commonwealth Superannuation Fund. This information was incorrect and Mr Cornwell successfully argued in the High Court that he should have been allowed to join the superannuation scheme.
Whilst the case dealt with an action in negligence and when it accrues for the purpose of limitation acts, beyond the precedent value of such a case where a Court was considering negligent advice about superannuation I am unable to see its relevance to this matter.
The applicant submitted:
“185.At very least therefore, the assertion by Greyhound that Brian Randall was speeding while fatigued while having failed to make any reasonable enquiries regarding the accuracy of the assertion was a negligent misstatement. Brian Randall suffered damage as a result of that negligence because he was dismissed from his employment as a result. There is also the issue of aggravated and exemplary damages.
186.Given the congruence between the duty in tort and the implied contractual obligation referred to by Higgins CJ, it is a small step to extend the contractual obligation endorsed by Rothman J in Russell to act with prudence, caution and diligence into a duty of care in similar terms.
187.We submit that it is open to the Court to so find and if it did, then the manifest failure by Greyhound to adhere to its own policies [including its Anti-discrimination and Counselling and Discipline policies] – as to which see Part 3 Section A and B]- and its failure to exercise good faith and fidelity – as to which see Part 3 Section C and D], would constitute negligence.”
In submissions the respondent’s position was that Cornwell was irrelevant to the case before the Court and:
“208.There is no reported or to the knowledge of counsel for the respondent any decided authority to support a proposition that a cause of action will sound in negligence for a breach of a certified agreement.
209.The respondent did not owe the applicant a duty of care that included obligations set out in the applicant’s Contentions of Fact and Law at paragraph 38.[a] to 38[g]. In any event the applicant failed to prove the alleged particulars of amounting to negligence.
210.As the respondent did not owe the applicant a duty of care as contended, and even if such duty of care were owed to the applicant, the respondent has not breached any such duty of care and the applicant is not entitled to any damages for breach of a duty of care.”
In Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 Jessup J at [324]-[326] said:
“That an employer is under an obligation unproved by law, to take reasonable care for the safety of employees is well established. There is no shortage of authority for the proposition that a source of that obligation is a term which the law implied into all contacts of employment…
…
The employer’s contractual duty arising at common law to provide a safe system of work etc is a duty to take that degree of care which is reasonable in all the circumstances and thus, in point of content, corresponds with the like duty arising under the law of tort…”
The respondent did not take issue with this. Contrary to the applicant’s submissions[45] the respondent acknowledged that the law recognises the duty of care it owed to the applicant to provide a safe place and system of work.[46]
[45] Para 178 of applicant’s submissions
[46] See paragraph 205-207 of respondent’s submissions
That is not the case put by the applicant here. The applicant’s submissions appear to suggest that an employer has a duty of care to provide accurate information to employees. The applicant’s claim in this regard appears from the submissions (as opposed to the contentions) to rest on the assertion made therein that the respondent “failed to make any reasonable enquiries regarding the accuracy of the assertion” of overspeeding on the applicant’s part.
Leaving to one side whether there is such a duty the applicant’s claim in this regard faces a number of insuperable difficulties the first of which is that he failed on the evidence for the reasons set out earlier. The applicants own evidence detailed the enquiries made by the respondent. There was nothing capable of persuading me it was not reasonable for the respondent to rely on the information gathered during the course of the investigation. The gloss that the applicant seeks to put on reasonable in submissions does not render them unreasonable after the event. In any event I note the respondent’s submission that the applicant failed to prove the particulars amounting to the negligence nor was the Court pointed to any evidence of an objective standard said to have been breached.
The difficulty with the applicant’s claims (to the extent that they were made in the application rather than in submissions after the hearing) that a failure to adhere to policies and to exercise good faith and fidelity would constitute negligence are highlighted in his own submissions at paragraph [186] wherein the Court is asked to “extend” the contractual obligation it was submitted was “endorsed” in Russell “into a duty of care.”
Leaving to one side the absence of direct authority for taking such “a step” the absence of evidence justifying it in any event means the claim cannot be made out.
Conclusion
The applicant may have believed the termination of his employment was unfair. However he elected to pursue a claim for unlawful termination. I have concluded that the applicant’s claim alleging a breach of s.659 of the WR Act must fail as the respondent has discharged the onus imposed by s.664 of the WR Act.
Furthermore, I am satisfied for the reasons set out above that the other claims made by the applicant are not made out. As a result, the application filed 17 August 2007 must be dismissed.
These are proceedings to which s.666 of the WR Act applies.
The respondent has sought costs and sought to make further submissions on this issue.In the circumstances I will hear the parties on the issue of costs.
The respondent will have 14 days to make any submissions it may wish to make in relation to costs and the applicant a further 14 days to respond and then the respondent a further 7 days for anything in reply. Unless the parties make a request to the contrary in those submissions the application for costs will be heard on the papers.
For these reasons I make the orders set out at the beginning of these reasons for judgment.
I certify that the preceding two hundred and fifty-two (252) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Associate: Rachelle Lombardo
Date: 29 August 2008
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