Raymond Johns v Twentieth Super Pace Nominees Pty Ltd t/as Sct Logistics
[2009] FWA 766
•2 DECEMBER 2009
[2009] FWA 766 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
v
Twentieth Super Pace Nominees Pty Ltd t/as SCT Logistics
(U2009/10269)
COMMISSIONER FOGGO | MELBOURNE, 2 DECEMBER 2009 |
Termination of employment; extension of time.
[1] This is an application made by Raymond Johns (the Applicant) on 13 July 2009 for relief in respect to the termination of his employment from Twentieth Super Pace Nominees Pty Ltd t/as SCT Logistics (the Respondent). The application was made pursuant to s.643(1)(a) and ss.659(2)(e) and (f) of the Workplace Relations Act 1996 (the Act).
[2] The matter was allocated to the Commission as currently constituted whereupon contact was made to both the Applicant directly and his representative, the Transport Workers’ Union of Australia (the TWU) to clarify apparent errors in dates regarding length of service in the responses to question 19 of the application. On 12 August 2009 an amended application was received. The amended application served to add the additional ground of s.660 of the Act to the application however did not amended the apparent error at question 19.
[3] The matter was listed for conciliation conference in Shepparton on 15 September 2009 but cancelled upon receipt of the Form R28 Notice of employer’s appearance on 3 September 2009. The Respondent lodged an objection to the Commission extending the time for lodgement of the application and objected to conciliation before the issue was determined.
[4] A notice of invitation was issued pursuant to s.648 of the Act advising parties that the matter would be determined on the papers and seeking additional information from the parties. The parties were advised of the relevant principles Brodie-Hanns v MTV Publishing Limited 1as per the note to s.643(15) of the Act, namely:
“(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.
(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.
(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.
(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”
[5] The applicant was initially required to file submissions by 11 September 2009. Nothing was received by this date however after contact was made with both the Applicant and his representative by Chambers the Applicant himself sent an email on 16 September 2009 which stated:
“The late filing of the R27 Form for wrongful dismissal is due to having sent a letter to Mr Paul Thompson of SCT. After giving Mr Paul Thompson sufficient time, and no forthcoming response was received it was then that I made the decision to Lodge the R27 Form for wrongful dismissal.”
[6] This letter referred to by the Applicant on his application where he states the reason for the late lodgement was:
“Attempts have been made for reinstatement see attached letter, but no response has been received. Therefore this is my next step.”
[7] The letter was attached to the application and reads:
“19th June 2009
Mr Paul Thompson
National Linehaul Manager, SCT Logistics
PARKES NSW
Paul Thompson
I would ask you to reconsider my dismissal as I strongly feel I have been unfairly dismissed.
SCT Long Distance Driver Compliance Manual states on page 4 under Occupational Health & Safety Policy that SCT Logistics will: Provide safe equipment and systems of work. I was not provided with safe equipment to work with. Numerous requests were submitted to SCT for the repair of the trailers I was using at the time of the accident.
The resulting damage would not have been caused to the trailers had SCT done their part and repaired those trailers. Yet you dismissed me for the damage. No responsibility has been taken by SCT for the condition those trailers were in. When a maintenance problem with a trailer was submitted the trailers were handed over to another driver instead of being repaired.
Page 3 under the heading Workplace Diversity Policy of your Manual states SCT is committed to providing a workplace free of all forms of discrimination, harassment and bullying, where all personnel are treated with dignity, courtesy and respect. This had not been my experience. I have found myself to have been placed under pressure and harassment by members of your company on a regular basis. I have been discriminated against regularly with loads and times behind those who are favoured in the company.
Page 5 under the heading Fatigue your manual states Driver's shifts will be designated so that you will be able to have adequate rest breaks to minimise the chance of fatigue and to comply with regulations. I have not found this to be the case with the loading and unloading times not taken into consideration when our run times are given to us.
The expectation to work over and above the legally required hours with equipment well below standard, the discrimination, harassment and pressure placed on me by staff members of the company all contributed to the chain of events on the day that I was sent home until further notice, which resulted in my termination.
The written warning that was issued to me by SCT on the 18th August 2008 was not dealt with in the correct manner and I was placed under duress to sign it.
I have tolerated these conditions during my employment with SCT as I enjoyed my job.
I apologise for my actions that were untoward on this occasion, I also ask SCT to take accountability for their demise in this instance.
On these matters your understanding would be appreciated and I ask to have my position reinstated.
Yours sincerely
Raymond Johns”
[8] At the request of both the parties the dates to submit written submissions provided for in the Invitation was extended. The Applicant’s representative filed submissions on 25 September 2009. Relevantly they state:
“Mr. Johns was terminated on 3 June 2009, Fair Work Australia received an R27 Application on 13 July 2009. Mr. Johns was suffering from depression at the time of the incident due to stress and fatigue allegedly caused by the company. This contributed in the late application to FWA.”
[9] The remainder of the submissions go to the events surrounding the incident that lead to the Applicant’s termination which the TWU believe demonstrate mitigating circumstances that make the extension of time for the lodgement of the application fair and reasonable. They are:
- Mr. Johns adhered to the request of the Company, the 6 hour delay caused a “blow out” of Mr. Johns driving and work time. Mr. Johns was directed by management to continue his delivery route to Brisbane. Once he got to the Acacia Ridge Depot due to a shortage of local drivers, Mr. Johns was also directed to unload. This was to Mr. Johns detriment as he was now in excess of 20 hours.
- This resulted in fatigue and caused Mr. Johns to feel ill and thus result in error of judgement that caused damage to the Company truck.
- SCT terminated Mr. Johns employment on the grounds of the alleged damage to the Company truck.”
“— Mr. Johns was on a scheduled linehaul run for SCT from Melbourne to Brisbane when a fellow colleague was involved in a Truck Accident (rollover). Mr. Johns was directed by Management to back track to the site of the accident and remain at the scene. Mr. Johns was also instructed by Management to take photos and make notes of the accident. Mr. Johns was at the site of the accident from 1 am to 7 am.
[10] The Respondent’s submissions were received on 2 October 2009. They also address the incident and relevant background as well as addressing the principle in Brodie-Hanns directly. The Respondent’s outline of the background to the termination of employment states:
“1 On 3rd June 2009 the Applicant was involved in an incident following the unloading of his truck whereby damage was caused to the Respondents vehicle as a result of the Applicant's failure to adequately secure the side curtains of the trailer before moving off from the unloading bay.
2 The Respondent investigated the incident and provided the Applicant with a full opportunity to explain how the damage occurred.
3 Following that investigation the Respondent concluded that the damage was caused by the Applicant's failure to abide by procedures and exercise reasonable care in the tying down and restraint of side curtains which would have eliminated the possibility of the damage occurring.
4 The damage to the side curtains is valued at approximately $5,000.00.
5 The Applicant has been previously warned of the importance of exercising care in use of Company vehicles following an incident on 19 July 1998 where he failed to apply the parking brake of a vehicle causing the vehicle to roll forward uncontrolled and collide with a tree in a rest area.
6 The value of the damage on this occasion was approximately $45,000.00 in respect of the vehicle and $8,000.00 in respect of the rest area.
7 SCT and their insurers have covered the costs of both incidents without seeking contribution from the employee.
8 The employee was issued with a final written warning in respect of this incident.
9 The termination of employment was communicated to the Applicant on 4 June 2009 and confirmed in writing on 5 June 2009, a copy of that letter is attached.”
[11] The representative of the employer also addressed each of the principles arising from the Brodie-Hanns decision. They noted that the application was 17 days out of time and none of the issues arising from Brodie-Hanns had not been addressed in the response for Mr Johns.
[12] A major issue of difference between the submissions regarding the events which led to the termination of Mr Johns employment is that the Respondent states that the “The incident to which the TWU refer and blame for the late lodgement of the Application occurred in July 2008, 11 months prior to the Applicant’s dismissal.”
[13] The respondent further states that the incident had no bearing or relevance to the termination of Mr John’s employment or the extension of time arguments.
[14] The Respondent noted that the Applicant contested the termination of employment after his dismissal and sought reinstatement in a letter to the employer dated 19 June 2009. The Respondent did not respond on the grounds that:
“there was no basis for the Applicant to believe that such a request would be considered by the Respondent. There is nothing in the Respondent’s policies or procedures that provide for any right of review and at the time the request was made the Applicant was not an employee of the Respondent.
The Respondent did not respond to the letter as they did not feel there was any obligation on them to do so. This decision took account of the fact that 14 days had passed between the termination and the request for a review. There remained a further 14 days during which time the Applicant could have lodged his claim for Unfair Dismissal.
The Respondent submits that having not received any response within a short period after writing the letter dated 19 June 2009 the Applicant could reasonably be expected to conclude that no response was going to be forthcoming.”
[15] The employer stated further that there was time for the Applicant to make an application within the 21 day time limit and he had made no attempt to follow up the letter with a phone call.
[16] The Respondent submitted that it would not suffer any prejudice as a result of the delay in lodgement so far as defending any proceedings is concerned but emphasized that the absence of prejudice is insufficient to grant an extension of time.
[17] The Respondent stated however that it would suffer prejudice on the basis that once the 21 days had passed they should be able to conclude that they are no longer under the risk or have potential exposure in relation to any claim by the employee. In this regard it relied on the decision in Brisbane South Regional Health Authority v Taylor which stated:
“People should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them...” 2
[18] The employer submitted that there was no merit regarding Mr Johns’ application and in fact the submissions on his behalf had failed to address the merits of Mr Johns claim. The reliance on the incident 11 months prior in an extension of time argument was it said misplaced.
[19] The Respondent stated that the decision to terminate Mr Johns employment was made following investigation of Mr Johns failure to tie back truck curtains on 3 June 2009 thus causing some $5,000 damage. Regarding the Applicant’s allegations that the truck was defective the Respondent also stated that as follows :
- The Applicant had driven the vehicle with that alleged fault for a considerable period and had been able during that time to properly secure the curtains, thus avoiding damage.
- The Respondent has a procedure for notifying faults in order that they can be repaired promptly and with minimum disruption to the business.
- The Applicant did not complete any paperwork indicting a fault nor did he at the time notify any person that a fault existed.
- On review of prior logs there is no record of any reported fault with this vehicle.
- The Respondent reasonably concluded that the Applicant had acted either recklessly or negligently and as a result caused damage to the Respondent’s vehicle.
- This is not the first occasion where damage has been so caused.
- The cost of repairing the damage has been significant on both occasions.
- The Respondent contend the decision to terminate is both fair and reasonable and us not unjust.”
“— The Applicant informed the Respondent that the decision not to tie down the curtains was deliberate to show the Respondent that there was a fault with the vehicle.
[20] The Respondent submitted that Mr Johns had caused the damage and that there were no mitigating circumstances which made the decision to terminate the employment unreasonable. The Respondent did not summarily dismiss Mr Johns without payment of notice although it has done so previously in similar circumstances and it believed that Mr Johns secured work within a reasonably short period of time following the termination.
[21] The final issue raised by the Respondent was that it did not have details regarding the involvement of the TWU with Mr Johns application but if it was prior to the expiry of the 21 day time limit Mr Johns would have been advised of the 21 day time requirement. In all the circumstances the Respondent submitted that the Applicant had failed to discharge his burden of providing an acceptable explanation for the delay in lodging his claim within 21 days and the time limit should not be extended.
Conclusion
[22] The invitation to the Applicant and the Respondent to lodge written submissions in order that this application could be heard on the papers, prescribed the issues which the Commission would be taking into account in determining this application. The issues arise from the decision in Brodie-Hanns v MTV Publishing Limited. They are directly relevant to this application. Each issue is considered below.
[23] The first principle staes “(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.”
[24] All the issues must be considered prior to establishing whether the Commission is ‘positively satisfied’ that there is an ‘acceptable reason for the delay.’ In this case the Applicant states that the termination of employment occurred on 8 June 2009 and that he last worked for the employer on 3 June 2009. The Applicant states that he commenced work for the Respondent on 19 February 2006.
[25] I refer above to a number of conflicting statements in the application Form R27. On the basis of the letter of termination issued by the employer on 5 June 2009 and the wording of that letter it would appear that this is the date on which the termination of employment became operative. The Respondent states in their written submissions that the termination took effect on 4 June 2009 and Mr Johns states that the termination of employment occurred on 8 June 2009. The letter of termination is therefore considered the operative date and within the scheme of the then Act, the due date for lodgement of an application for relief from termination of employment was 26 June 2009.
[26] The Application by Mr Johns was filed with the Registry of the Commission on 13 July 2009 some 17 days after the period for lodgement finished.
[27] The second issue arising from the Brodie-Hanns principles states “(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.”
[28] Mr Johns wrote to the Respondent on 19 June 2009 explaining the issues which had arisen during his employment, citing poorly maintained trucks, discrimination and harassment and fatigue caused by the failure of the Respondent to adhere to its policies. He acknowledged that he had received a written warning on 18 August 2008 but insisted that it had not been correctly dealt with at that time.
[29] While Mr Johns did not specify the date or the incident to which he was referring, he apologised for his actions which he stated ‘were untoward on this occasion’. It seems apparent that the apology is in regard to the incident on 3 June 2009 during which an error by Mr Johns led to damage to the truck curtains to the value of approximately $5,000. Mr Johns also sought that he be reinstated to his position.
[30] The Respondent received the letter and did not respond. In its view “they did not feel there was any obligation on them to do so.” In my view this does not constitute best industrial relations practice let alone common courtesy. Mr Johns could have expected a reply to his letter seeking reinstatement and the Respondent should have provided him one.
[31] The third issues to be addressed regards whether “(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.”
[32] The Respondent submits that it will not suffer prejudice as a result of the delay but states that a future prejudice would occur if after 21 days the employer was unable to conclude it would not be ‘under the risk’ of a claim by a previous employee.
[33] The fourth principle states “(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time” and is noted in consideration of this application.
[34] The fifth issue states that “(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.”
[35] On the basis of the written submissions and supporting documentation such as the termination letter, the written warning issued on 19 June 2008 (even though Mr John states that it was given to him one month later than that date) and the letter of Mr Johns dated 19 June 2009, I am of the view that there is limited merit in the application for relief from termination of employment made by Mr Johns.
[36] Having received the written warning in 2008 he would have known, because it was stated in the letter, that any future breaches of procedure ‘will’ result in termination of employment. The incident on 3 June 2009 when Mr Johns damaged the side curtains resulted from a breach of procedure in that he drove off without securing the curtains thus causing damage. His own letter on 19 June 2009 acknowledges his fault in the incident.
[37] The final principle to consider in determining whether or not to extend the time to lodge an application states “(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court’s discretion.”
[38] This principle does not have direct relevance to this application.
[39] On the basis of the above I do not consider that there is an acceptable explanation for the delay in Mr Johns lodging an application for relief from the termination of his employment. While the employer should have at least responded to Mr Johns’ letter dated 19 June 2009, Mr Johns could similarly have made further enquiries when he did not receive a reply. Of note also is the fact that Mr Johns contacted his union the TWU after the termination of his employment although the submissions are silent on the date this occurred.
[40] The submissions for Mr Johns do not accurately reflect what the Commission believes to be the time frame over which incidents occurred during Mr Johns’ employment. I am satisfied on the detail provided in the Respondent’s submissions that the incident whereby he was directed by management to attend the site of an accident of another company truck occurred on 11 July 2008. In such circumstances I reject totally any reliance on this incident as a mitigating circumstance for the incident involving Mr Johns on 3 June 2009 nearly one year later.
[41] While Mr Johns attempted to be reinstated and took the initiative to urge that course on the Respondent, that alone does not constitute an acceptable reason for the delay in lodging an application as required by the Act and I do not accept that the 21 day time limit should be extended to allow lodgement of the application. An Order will issue giving affect to this Decision and dismissing the application.
COMMISSIONER
1 (1995) 67 IR 298.
2 1996 [HCA] 25.
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