Robert Drysdale v John L Pierce Pty Ltd
[2017] FWC 1251
•9 MARCH 2017
| [2017] FWC 1251 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Drysdale
v
John L Pierce Pty Ltd
(U2016/14052)
COMMISSIONER SAUNDERS | NEWCASTLE, 9 MARCH 2017 |
Application for an unfair dismissal remedy – valid reason – dismissal not harsh, unjust or unreasonable
[1] Mr Robert Drysdale was employed by John L Pierce Pty Ltd (JLP) as a fuel delivery driver. His primary function was to deliver petroleum and diesel fuel to service stations. Mr Drysdale was summarily dismissed on 4 November 2016 as a result of his conduct when delivering diesel fuel to the Caltex service station in Raymond Terrace on 14 October 2016. In particular, JLP contends that Mr Drysdale used his mobile phone while the unloading of diesel fuel was taking place and failed to establish an exclusion zone in accordance with JLP’s policies and procedures. Mr Drysdale admits the former allegation but denies the latter. He alleges his dismissal was harsh, unjust and unreasonable. JLP denies those allegations.
[2] Mr Drysdale gave evidence in support of his claim, as did his wife, Ms Jacinta Drysdale. Mr Philip Pierce, Chief Operating Officer of JLP, was called by Mr Drysdale to give evidence pursuant to an order under s.590(2) of the Fair Work Act 2009 (Cth) (the Act). JLP adduced evidence from Mr Peter Silver, General Manager, Mr Steve Hill, Senior Driver Trainer, Mr Dean Bennett, Senior Driver Trainer, and Mr William Weilley, Newcastle Operations Manager.
Initial matters to be considered
[3] I am required by s.396 of the Act to decide four matters before I consider the merits of Mr Drysdale’s application. There is no dispute between the parties and I am satisfied on the evidence that:
(a) Mr Drysdale’s application was made within the period required by s.394(2) of the Act;
(b) Mr Drysdale was a person protected from unfair dismissal;
(c) JLP was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and
(d) Mr Drysdale’s dismissal was not a case of genuine redundancy.
Was Mr Drysdale’s dismissal unfair?
[4] I am required by s.387 of the Act to take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Drysdale’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.
Was there a valid reason for Mr Drysdale’s dismissal (s.387(a))?
[5] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 The reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3
[6] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).5
[7] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.6 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7
[8] In cases, such as the present, where allegations of serious misconduct are made, the standard of proof in relation to the alleged conduct remains the balance of probabilities but "the nature of the issue necessarily affects the process by which reasonable satisfaction is attained" 8 and such satisfaction "should not be produced by inexact proofs, indefinite testimony, or indirect inferences"9 or "by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion".10 Put another way, the application of the Briginshaw standard means that I should not lightly make a finding that an employee engaged in the misconduct alleged against him or her.11
[9] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 12as follows:
"[35]... as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a "valid reason" where "valid" has its ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the requirement for a "valid reason" should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal."
[10] JLP relies on two reasons which it contends are “valid reasons” for Mr Drysdale’s dismissal:
(a) First, Mr Drysdale used his mobile phone and failed to observe the point where the tanker’s fuel hose connected to the service station’s underground storage tank while unloading diesel fuel at the Caltex service station in Raymond Terrace on 14 October 2016; and
(b) Secondly, on 14 October 2016 Mr Drysdale failed to establish an exclusion zone prior to unloading diesel fuel in accordance with JLP’s applicable policies and procedures.
First reason – use of mobile phone
[11] The following parts of JLP’s policies and procedures establish rules in relation to the use by an employee of a mobile phone when loading or unloading fuel [emphasis added]:
(a) JLP Employee Reference Manual, Chapter 3, Section 3:
“Mobile Phones
Mobile phones are an invaluable tool for communication and have many benefits when used safely, in accordance with the law and safety guidelines. When used improperly they have the potential to cause serious incidents.
DO… | DON’T… |
Turn off all phones when | ● Receive calls or dial when driving |
a) In Fuel Terminals | ● Use the handset when driving |
b) Fuel Depots | ● Receive calls and less totally safe |
c) When Unloading | ● Use a phone when loading or unloading |
d) In accordance with site rules | |
e) in accordance with procedures” |
(b) JLP Employee Reference Manual, Chapter 3, Section 3:
“Gravity Delivery Procedures
SAFETY WARNINGS
The following risks during delivery must always be remembered.
1. Traffic – be aware of vehicle movements. High risk while keeping tanks.
2. Fire – be vigilant and constantly scanned for possible ignition sources.
3. Spillage – ensure tank openings and fittings are secure, deliver only two SFL, constantly monitor delivery.
4. Contamination – triple check for product compatibility before opening outlet valves.
5. Distractions – avoid entering into conversations with other people during delivery. If you become distracted, stop, walk back through the task and double check compliance with this procedure.
6. Public – bulk delivery is very likely to be carried out in the work environment where the public is not aware of the hazards of handling petroleum products. It is therefore up to you to be alerted to the presence of potential hazards. These might arise through public ignorance, deliberate risk taking, or careless and inadequate attention to procedures.
7. Do not deviate from this procedure. If at any time it becomes unsafe to deliver, stop the delivery and contact your operations Manager.
(c) JLP Safe Work Method Statement (SWMS), Bulk Fuel Delivery
“Hazards
1. Traffic – Be aware of vehicle movements, this is extremely high risk whilst dipping tanks.
2. Manual Handling – Back injuries, muscle strains etc. Identify associated risks within work area.
3. Fire – Be vigilant and constantly scanned for possible ignition sources.
4. Mobile Phones – Must not be carried, all phones in cabin and switched off from start to end of discharge.
5. Static – Ensure only tested in–date hose in good condition are used and followed bonding procedures.
6. Spillage – Ensure tank openings and fittings are secure, deliver only to SFL, and constantly monitor delivery.
7. Contamination – Triple check for product compatibility before opening outlet valves.
8. Distractions – Avoid entering into conversations with other people during delivery. If you become distracted, stop, walk back through the task and double check compliance with this procedure.
9. Public – Bulk delivery is very likely to be carried out in a work environment with the public is not aware of the hazards of handling petroleum products. It is therefore up to you to be alerted to the presence of potential hazards. These might arise through public ignorance, deliberate risk taking, or careless and inadequate attention to procedures.
10. Do not deviate from this procedure – If it any time it becomes unsafe to deliver, stop the delivery and contact your operations manager.”
(d) JLP Bulk Refined Driver Competency Assessment:
Mobile Phone Use
- Can explain mobile phone use policy
- Not to be used unless vehicle is stopped and park brake applied
- Must be turned off and not carried when loading or unloading, inspecting vehicle
- Not to be used or turned on within loading facilities
- Understands non-compliance with phone use policy will result in dismissal”
…
Dealing With Distractions During Delivery
● Understands that only driver and other persons specifically authorised by JLP are to occupy exclusion zone during delivery
● Only delivery related tasks are to be undertaken whilst delivery is taking place
● Understands that engaging in conversation with other persons during delivery should be avoided as this takes concentration away from unloading
● Delivery operations MUST STOP if distractions are present
● Any complaints regarding delivery
- should be referred to site staff or JLP Management
- do not engage in any debate or argument
- no conversation to be entered into whilst delivery is taking place”
[12] I am satisfied on the evidence that Mr Drysdale was trained in the relevant policies and procedures set out above.
[13] At about 7pm on 14 October 2016 Mr Bennett was driving his car past the Caltex service station at Raymond Terrace. As he drove by the Caltex service station, Mr Bennett noticed a JLP branded fuel tanker parked in the unloading zone of the site. Mr Bennett drove into the service station because he was concerned that the tanker driver, Mr Drysdale, had not used safety cones to mark out an exclusion zone. Mr Bennett says he observed Mr Drysdale leaning on the tanker’s wheel arch, between the tanker’s two trailers, and looking towards the service station’s bowsers and shop. Mr Bennett says Mr Drysdale had his back to the spill box. There were two diesel hoses running from the front trailer of the fuel tanker into the spill box and the tanker was in the process of unloading diesel fuel. Mr Bennett observed Mr Drysdale with a mobile phone in his hand and he was holding it near his ear. Mr Drysdale was talking on his mobile phone. Mr Bennett watched Mr Drysdale talk on his mobile phone for approximately 30 seconds, at which time Mr Bennett says that Mr Drysdale turned and saw him. Mr Bennett then says that Mr Drysdale quickly placed his phone in his pocket, walked over to Mr Bennett’s vehicle and spoke to him.
[14] Mr Drysdale admits that he had been talking on his mobile phone for about 40 seconds when Mr Bennett pulled up in his car. 13
[15] Mr Drysdale denies that he had his back to the spill box when he was talking on his mobile phone. I prefer Mr Bennett’s evidence in relation to this issue because:
(a) Mr Drysdale admitted in cross examination to having his back to the spill box, albeit he says he only did so “briefly”; 14
(b) Mr Drysdale conceded in cross examination that he was not looking at the spill box at all times; he says he was completing “paperwork”; 15
(c) I accept Mr Silver’s evidence that Mr Drysdale admitted to Mr Silver in a telephone conversation on 27 October 2016 that he was not “watching the connection point while I was using the phone”; 16 and
(d) I found Mr Bennett to be a more reliable and credible witness than Mr Drysdale, for the reasons set out below.
[16] Mr Drysdale’s conduct in talking on his mobile phone for about 40 seconds while unloading diesel fuel on 14 October 2016 and having his back to the spill box constituted a clear and patent breach of JLP’s policies and procedures. Mr Drysdale conceded that he was not giving his full attention to what was going on around him when he was talking on his mobile phone. 17
Second reason – exclusion zone
[17] The following parts of JLP’s policies and procedures establish rules in relation to the establishment of an exclusion zone by an employee delivering fuel to a site [emphasis added]:
(a) SWMS – Bulk Fuel Delivery
Step 2: Site Arrival & Hazard Identification
…
Establish a work area around fill points using a minimum of six safety cones, placed at minimum - 4 meter hazard zone that extends laterally from the tanker discharge point and 3 metres from the tank fill point (this can overlap).
…
Step 3: Pre-Delivery Planning
Identify and create a Safe Work Area utilising cones and barriers.
…
Step 5: Discharge
Control
n Appropriate use of Safety Cones and Extendable Barriers”
(b) JLP Employee Reference Manual, Chapter 3, Section 4:
“Execute Delivery
n Place safety cones around discharge area to mark out work area and divert any traffic flow.”
[18] I am satisfied on the evidence that Mr Drysdale was trained in the relevant policies and procedures set out above.
[19] There is a factual dispute between Mr Drysdale and Mr Bennett in relation to the number and location of safety cones placed by Mr Drysdale at the Caltex service station on 14 October 2016.
[20] Mr Drysdale gave the following evidence in his witness statement in relation to this issue:
“12. On 14 October 2016 at approximately 7PM I delivered a B–double truck of diesel fuel to a Caltex service station on the corner of Gleneig Street and Adelaide Street, Raymond Terrace, NSW, 2324.
13. There had been an accident on the Pacific Highway on 13 October 2016 that delayed the driver who was going to deliver the truck that I was going to drive on my next shift. The delay was a period of 8 hours. That then delayed my journey and moved my sleep cycle. At the time I was suffering mentally from the delay, fatigue, the conduct of Mr Weilley, and repeated denials of my requests for annual leave.
14. The Caltex is part of a busy shopping centre that includes a gym and supermarket. The three businesses share a car park that also contains the discharge point for fuel that is being delivered to Caltex.
● Exclusion Zone
15. When discharging fuel we drivers are required to set up an exclusion zone of cones around the discharge point to prevent members of the public coming close to where the fuel is being discharged. The training that I received was that there must be six cones and they must be placed in a manner that forms a zone of up to 4 metres from discharge point as the site allows.
16. When I pulled up I found 2 vehicles parked inside the area that would be a safe exclusion zone around the discharge point. I proceeded to set up my cones, six in total, 4 metres away from the discharge point.
17. Whilst unloading diesel fuel, 2 people from the gym arrived back to their vehicles and asked me how long I was going to be blocking them in for. I said it would take around 40 minutes to reposition and let their vehicles out as I had only just started the delivery. They appeared to become very agitated. I began to feel anxious. I said to them I will move it as quickly as possible.
18. I disconnected my truck from the fill point and moved forward to let them out without further aggression towards me. I moved the cones at the rear of the truck to allow the second car to exit. I then placed the cones back into position after repositioning the truck and reconnecting to the fuel discharge point.
19. The exclusion zone that I have established on that day had the car park blocked so that further cars could not park beside me.
20. My 6 cones were deployed appropriately in the situation I was in. 4 cones in the front and 2 in the rear. The rear two cones were closer to the rear of my vehicle as there was an air-pump that people would have just walked through the gap in the cones to get to if the cones were not closer together at the rear of the vehicle.
21. During my training with Steve Hill who was my driver trainer when I started in the Fuel Division in Sydney it was stated to me that driver discretion was to be used at difficult sites similar to the Caltex and that 6 cones were to be used to establish an exclusion zone. This is exactly what I did as per my training.”
[21] Mr Drysdale gave evidence in his witness statement of his conversation with Mr Bennett on 14 October 2016, but did not suggest they discussed the subject of safety cones.
[22] In cross examination, Mr Drysdale accepted that he was required to have three cones at the front of the truck and three cones at the rear of the truck, in the positions shown in the diagram prepared by Mr Bennett. 18 Mr Drysdale then gave the following evidence in relation to the number and location of cones he had out on 14 October 2016:19
“You’re saying that you had witches hats at the rear of the vehicle?--- Correct.
How many?--- I had my three out to give me a combined total – I think I had about seven to eight out all up. I had about four or five out to the front, spread out where I can to block as many of those cars, and my three out on - very similar, probably a little bit further back than normal, because I’d only just recently moved the truck forward, which would have left a gap where Dean would have spotted the truck from the street, driven straight in that gap and---
Okay. So you’re saying you had three at the front and four at the back?--- Yes - no, three to the rear.
Three to the rear and three at the front?--- That’s correct.
And where did you have the three at the rear?--- On the same angles as - roughly on the same angles as what is on the second map.
So you’re saying you blocked it off at the back on the second map?--- Yes, but because I’d moved the truck up, moved the truck forward, there might have been - may have been a little bit of a gap there.”
[23] In cross examination, Mr Drysdale agreed that on 14 October 2016 Mr Bennett asked him “where’s your hats, Rob?” It was then put to Mr Drysdale that he walked to the back of the tanker and retrieved more witches hats. Mr Drysdale denied doing that. Instead, he claims that the cones “were already out to the rear of the vehicle and deployed, but because I just moved that truck up a couple of feet to gain access to the box after letting three or four cars out there may have been a little gap there and he’s driven in behind and obviously not noticed them, but the hats were at the front of the vehicle they were at the rear of the vehicle.” 20
[24] Mr Bennett gave the following evidence in his witness statement in relation to what he says he observed by way of safety cones on the evening of 14 October 2016:
“10. I drove into the service station to see what was happening as I was concerned that what I had observed was not a proper exclusion zone and so I could speak to the driver about this. I was travelling in a westerly direction and I turned my car around to travel in the opposite direction at the next roundabout and entered the Caltex service station. I drove towards the JLP tanker and up to the area where the exclusion zone should have been set up.
11. I stopped my car a few metres from the tanker. I could not see any witches hats set up. I saw Rob Drysdale, a driver employed by JLP… Mr Drysdale then walked over to my vehicle and we had a conversation to the following effect:
Me: What’s going on?
Mr Drysdale: I’m sick of putting up with all the crap here. I’m thinking of handing in my notice at the end of my shift.
Me: Where are your hats Rob?
12. Mr Drysdale then walked back to the tanker and retrieved more witches hats and began setting them up. It was then I noticed he had three witches hats already set up in a line blocking off some car parks near the front area of the truck. However, these witches hats were not preventing anyone from driving or walking up to the spill box while unloading of the fuel was taking place. This is the purpose of establishing an exclusion zone.”
[25] I prefer Mr Bennett’s evidence over Mr Drysdale’s evidence in relation to the number and location of safety cones in place at the time Mr Bennett attended the Caltex service station on 14 October 2016, for the reasons set out in the following eight paragraphs.
[26] First, on 25 October 2016 Mr Bennett interviewed Mr Drysdale in relation to the incident on 14 October 2016. Mr Bennett sent an email to Mr Weilley about an hour and a half after his interview with Mr Drysdale, setting out his account of their discussion during the interview. That email states, in part:
“… I then moved onto the topic of unloading, and asked him how do his family problems tie in with him not putting any witches hats out?
He said he did have some out but only at the front. I told him that I did see those there that they weren’t set as an exclusion zone. He agreed and said that he used them to block off car parks so that he wouldn’t block in any cars when he moved the truck up to unload the back trailer.
I asked him why then, didn’t he have any at the back? He said that he would need too many of them to block the parks off and isolate the truck too.
I drew a diagram to point out to him how he could do both. (Isolate the truck and block the parks off). He said that people would ‘just come and kick them over while his back was turned.’
I asked him then about why he was on the phone and unloading at the same time? He said he was trying to organise a solicitor as he doesn’t have time through the day due to being on nights. (This was 7pm. I think the average solicitor might finish by 5pm)
I told him that we have had a couple of incidents leading up to this Caltex work, and this was a pretty big deal, and if the wrong person seen him, it could put the contract in jeopardy.
He agreed and said it won’t happen again…”
[27] Mr Drysdale conceded in cross-examination that he said to Mr Bennett in their meeting on 25 October 2016 words to the effect that “people would just come and kick them over while his back was turned.” 21 That evidence lends weight to the likelihood that Mr Drysdale did not have any safety cones put out to the rear of the truck at the time Mr Bennett attended the site, and he was seeking to provide Mr Bennett with an explanation for his failure to do so.
[28] Mr Drysdale also gave evidence that his recollection of what was said towards the end of the meeting with Mr Bennett on 25 October 2016 was hazy. 22 The placement of safety cones by Mr Drysdale at the Caltex site was one of the topics discussed towards the end of the meeting on 25 October 2016. Given that Mr Drysdale’s recollection of that conversation was hazy, Mr Bennett made a contemporaneous note of his recollection of the conversation and has given evidence consistent with that contemporaneous note in the course of these proceedings, and Mr Bennett was not challenged in cross examination on the accuracy of the content of his 25 October email, I find, on the balance of probabilities, that Mr Bennett’s email dated 25 October 2016 is an accurate and reliable record of the conversation he had with Mr Drysdale about the placement of safety cones at the Caltex site on the evening of 14 October 2016. It follows that Mr Drysdale admitted on 25 October 2016 that he did not have any safety cones placed at the rear of the truck with Mr Bennett attended the site on 14 October 2016.
[29] Secondly, Mr Drysdale was sent a copy of JLP’s draft incident report for his comment on 28 October 2016. The draft report asserted, inter alia, that Mr Drysdale had “not established a proper exclusion zone around the fill points.” Mr Drysdale provided the following comments in relation to the “exclusion zone” part of the draft report, including an admission that he did not have safety cones “placed to the rear of my vehicle”:
“… I reinforced my exclusion zone to the best of my physical ability without conflict with the general public. The site is a very busy (unloading point is situated directly on top of a carpark that is occupied by a 24 hour gym). It is a very difficult site to manage exclusion zones during peak periods. Not uncommon practise to have to disconnect truck several times to allow parked cars to leave premises. Just because I did not have hats placed to the rear to my vehicle does not mean that I did not have hats deployed.
My hats were in a position such to eliminate any need for me to disconnect and start again. Therefore eliminating or reducing any possibility of a cross over or conflict the public (sic). I am not stupid enough to deliberately not establish an exclusion zone. Every site has its idiosyncrasy and needs to be managed as per current conditions.
Forecourts are ever changing environments and I do believe that in the circumstances that I was presented with on the afternoon I had all appropriate measures in place and yes, the general public do move hats and cones at their will, in order to honour their gym membership. I’m not going to start and never will start a fight with the public whilst wearing company colours…” [emphasis added]
[30] Thirdly, there are inconsistencies between the evidence given by Mr Drysdale in his witness statement and the evidence given by him in cross examination. In particular, in his witness statement Mr Drysdale said that he had four safety cones at the front of the truck and two at the rear, whereas in his oral evidence he claimed that he had between three and five safety cones at the front of the truck and three at the rear. Further, Mr Drysdale claimed in his witness statement that the “rear two cones were closer to the rear of my vehicle”, whereas in his oral evidence he stated that there was a gap between the back of the truck and the cones at the rear of his vehicle.
[31] Fourthly, Mr Bennett gave evidence during the hearing, which I accept, to the effect that he is confident he would have seen any safety cones placed to the rear of the truck on 14 October 2016 had they been present. In light of the fact that Mr Bennett drove his car into the area where the exclusion zone would have been had it been set up at the rear of the truck, it is unlikely in my view that Mr Bennett would have failed to see safety cones at the rear of the truck had they been placed in that area by Mr Drysdale.
[32] Fifthly, on 17 October 2016, which was three days after the incident at the Caltex service station on 14 October 2017, Mr Bennett sent an email to Mr Weilley in which he set out his version of events. In that email Mr Bennett stated: “I asked him where were his witches hats and told him that he needs to put them out. He didn’t answer me, he just turned around and went to the back of the truck and got them.” That contemporaneous account is consistent with the evidence given by Mr Bennett both in his witness statement and orally at the hearing. However, the contemporaneous email is not consistent in all respects with the evidence given by Mr Bennett in his witness statement and orally at the hearing. In particular, in his email to Mr Weilley on 17 October 2016 Mr Bennett asserted that Mr Drysdale had “no witches hats out”, whereas in his witness statement and in his oral evidence Mr Bennett said that when Mr Drysdale went to retrieve witches hats from his truck he noticed that there were three witches hats already set up in a line blocking of some car parks to the front of the truck. Mr Drysdale did not make a note in his diary or otherwise make a contemporaneous note of the events that took place on 14 October 2016.
[33] Sixthly, Mr Drysdale conceded in cross examination that he lied on a number of occasions to JLP because he thought it might assist him or save his job. In particular, Mr Drysdale told Mr Bennett during his investigation in relation to the incident that he (Mr Drysdale) was talking to his solicitor on his mobile phone at the time of incident, whereas he was in fact talking to his wife; 23 Mr Drysdale gave evidence that he was untruthful in his response to the draft incident report when he informed JLP, in writing, that he was fit for work at the time of the incident;24 and Mr Drysdale gave evidence that he was untruthful when he JLP completed timesheet forms and stated that he was fit for work.25 In contrast, Mr Bennett presented as an honest and reliable witness. He gave direct answers to the questions put to him in cross examination and was prepared to concede points against his interests, including that he completed a competency assessment on Mr Drysdale’s behalf and he drove into an area that would have been within the exclusion zone had it been established by Mr Drysdale at the rear of the truck on 14 October 2016. For those reasons, I found Mr Bennett to be a more reliable and credible witness than Mr Drysdale.
[34] Because I prefer Mr Bennett’s evidence over Mr Drysdale’s evidence in relation to the number and location of safety cones in position at the time Mr Bennett attended the site on 14 October 2016, I find that Mr Drysdale failed to comply with his obligation under JLP’s policies and procedures to establish an exclusion zone around the discharge area. In particular, the fact that there were no safety cones at the rear of the truck meant there was no exclusion zone established around the discharge point. I have not made these findings lightly. I am satisfied that the evidence to which I have referred above comfortably establishes, to the Briginshaw standard, that Mr Drysdale engaged in the conduct alleged against him in relation to the non-placement of safety cones at the rear of the truck and his conduct in that regard constitutes a clear and patent breach of JLP’s policies and procedures.
Conclusion on valid reason
[35] Mr Drysdale’s substantial breaches of policy and procedure, as set out above, gave JLP a sound, defensible and well founded reason to dismiss Mr Drysdale. I am therefore satisfied that JLP had a valid reason for Mr Drysdale’s dismissal related to his conduct, including its effect on the safety and welfare of other employees.
Was Mr Drysdale notified of the reasons for his dismissal and given an opportunity to respond (s.387(b)&(c))?
[36] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 26, and in explicit27 and plain and clear terms.28 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[37] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 29
[38] Mr Bennett interviewed Mr Drysdale on 25 October 2016 as part of JLP’s investigation into the allegations that Mr Drysdale had used his mobile phone while unloading fuel and had not set up an exclusion zone on 14 October 2016. Mr Drysdale was given the opportunity to, and did, respond to those allegations at that interview.
[39] On 28 October 2016, Mr Silver provided Mr Drysdale with a copy of his draft investigation report for Mr Drysdale’s review and comment.
[40] Mr Drysdale provided his written response to the draft investigation report on 30 October 2016. Mr Silver made minor amendments to the investigation report following his review of Mr Drysdale’s response to it.
[41] The final investigation report was provided to Mr Drysdale on 31 October 2016.
[42] Mr Drysdale was invited to a meeting on 2 November 2016 to discuss the outcome of the investigation. Prior to this meeting, Mr Drysdale was informed that his employment with JLP may be at risk.
[43] On 2 November 2016, Mr Drysdale attended a meeting with Mr Silver and Mr Pierce. At that meeting Mr Drysdale was asked to provide further information for JLP to consider before making its decision in relation to his ongoing employment with JLP. Mr Drysdale did provide further information, including making allegations of bullying and harassment against Mr Weilley and allegations that JLP required Mr Drysdale to perform his duties in contravention of heavy vehicle laws.
[44] JLP consider Mr Drysdale’s responses and made some enquiries in relation to his allegations prior to making its decision to terminate his employment.
[45] By letter dated 3 November 2016, Mr Drysdale was provided with written notice of the termination of his employment with JLP, including the reasons for it.
[46] On the basis of the facts set out in the previous eight paragraphs, I am satisfied that Mr Drysdale was (a) notified of the reasons for the termination of his employment prior to the decision to terminate his employment, and (b) given an opportunity to respond to the reasons for his dismissal prior to his dismissal.
Was there an unreasonable refusal to allow Mr Drysdale to have a support person present (s.387(d))?
[47] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[48] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”30
[49] Mr Drysdale was given the opportunity to have a support person present during the meeting on 2 November 2016; he took up that opportunity by taking his wife to the meeting. I am satisfied that there was no unreasonable refusal by JLP to allow Mr Drysdale to have a support person present to assist at any discussions relating to his dismissal.
Warnings about unsatisfactory performance (s.387(e))
[50] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.
[51] In this case, the reasons for dismissal related to Mr Drysdale’s conduct, rather than his performance, so this consideration is not relevant.
Impact of size of JLP on procedures followed in effecting the dismissal (s.387(f))
[52] JLP operates a reasonably large business enterprise; it operates about 150 trucks and employs approximately 380 people. I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Drysdale’s dismissal.
Absence of dedicated human resource management specialists or expertise (s.387(g))
[53] JLP employed a human resources manager at the time of Mr Drysdale’s dismissal, so this consideration is not relevant.
Other relevant matters (s.387(h))
[54] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[55] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 31 in the following terms:
“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]
[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.
...
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):
“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”
[56] In this case there are a number of “other matters” which are relevant to my assessment of whether Mr Drysdale’s dismissal was harsh, unjust or unreasonable. I will deal with each of those matters in turn below.
[57] The first relevant matter is the length and quality of Mr Drysdale’s employment record with JLP. Mr Drysdale commenced employment with JLP in May 2014, having worked for JLP as a sub-contractor from about 2010 until May 2014. This contracting role was not related to the delivery of fuel. Mr Drysdale provided services for JLP’s general freight division. Although Mr Drysdale’s period of employment with JLP was relatively short (about 2.5 years), he had not previously received any warnings during his employment with JLP. This weighs in Mr Drysdale’s favour of the question of whether his dismissal was harsh in all circumstances.
[58] Mr Drysdale contends that his breaches of policy and procedure were minor. He says that he did not wilfully or deliberately use his mobile phone in contravention of JLP’s policies and procedures; he describes his use of the mobile phone as a “30 second error of judgement”. Similarly, Mr Drysdale submits that any failure by him to establish an exclusion zone in accordance with JLP’s policies and procedures was inadvertent, rather than deliberate. He points to the difficulties associated with working at the site in question, including having to deal with patrons parking near the unloading point and wanting to leave the site part way through Mr Drysdale’s delivery of fuel to the site. Mr Drysdale also says that nobody was harmed by his breaches of policy and procedure, and there was no real prospect of any significant harm as a result of his use of the mobile phone for short period of time and any failure by him to put out the requisite number of safety cones, which can be moved or ignored by patrons on the site. Mr Drysdale points to the fact that that spill pit, which is the contact point between the fuel delivery hoses from the delivery truck and the fuel storage facility at the service station, is sunken below ground level, with the result that it can contain a fuel spillage or leakage into a small area. Mr Drysdale contends that he should have been issued with a final warning, rather than be dismissed without notice. Mr Drysdale relies on all these matters in support of his argument that his dismissal was harsh because it was disproportionate to the gravity of the misconduct in respect of which the employer acted.
[59] In assessing the gravity of Mr Drysdale’s misconduct and his argument that his dismissal was harsh, it is necessary to have regard to the nature of the industry in which Mr Drysdale worked when he was employed by JLP. The transportation of fuel is a dangerous undertaking. There are significant risks associated with the loading, transportation and unloading of fuel. JLP has developed comprehensive policies and procedures to address such risks. Many of those policies and procedures are based on legislative or industry requirements or standards, such as the Dangerous Goods (Road and Rail Transport) Regulation 2009 (NSW), the Australian Dangerous Goods Code, Australian Standard 6007910.1, the Protection of Environment Operations Act 1997 (NSW), and the Work, Health and Safety Act 2011 (NSW).
[60] If a JLP employee becomes distracted during a delivery of fuel to a service station because, for example, the employee is speaking on a mobile phone or a car has driven in close proximity to the delivery point because an exclusion zone was not established and there is a leakage or spillage at the connection point, the employee is less likely to be able to activate the emergency stop device in the tanker at the earliest possible point in time. If a driver fails to immediately stop the unloading of fuel in circumstances where there is a leakage or spillage at the connection point, there is the potential for the tanker to unload up to thousands of litres of fuel onto the client’s site in a short period of time. In the case of petroleum fuel, this creates a significant risk of fire as petroleum fuel is highly combustible. In the case of diesel fuel, which was being transported and unloaded by Mr Drysdale on 14 October 2016, the toxicity of the fuel has the potential to place the health and safety of the driver, any customers at the client’s premises and the general public at significant risk as well as damage the surrounding environment. A significant spillage of fuel can leak into gutters and stormwater systems and impact sources of drinking water. JLP accepts that Mr Drysdale’s use of his mobile phone did not create a fire risk because he was delivering diesel fuel, rather than petroleum fuel.
[61] It is no answer to say, as Mr Drysdale does, that the use of safety cones do not physically prevent people from entering the exclusion zone and patrons at service stations can, and quite often do, kick or remove the safety cones and enter into the exclusion zone. JLP has developed policies and procedures to minimise and control the risks associated with the loading, transportation and unloading of fuel. The fact that compliance with such policies and procedures does not eliminate the risks or guarantee the health and safety of persons in the vicinity is not to the point. Employees such as Mr Drysdale, who are aware of and trained in the relevant policies and procedures, are required to comply with them as part of the employer’s measures to deal with the risks. Non-compliance with such policies and procedures can give rise to potentially serious consequences, with the result that it is not appropriate, in my view, to characterise Mr Drysdale’s breaches of policy and procedure as minor.
[62] I accept that Mr Drysdale did not wilfully or deliberately breach any of JLP’s policies or procedures on 14 October 2016. However, having regard to the nature of the industry in which Mr Drysdale worked for JLP and the serious risks associated with the task of unloading diesel fuel at a service station, I am satisfied that Mr Drysdale’s breaches of policy and procedure on 14 October 2016 were significant. Further, I am satisfied that Mr Drysdale’s conduct caused serious and imminent risk to the health or safety of persons at the Caltex service station on 14 October 2016. 32
[63] I accept that Mr Drysdale was under mental stress at the time he spoke on his mobile phone and failed to establish a proper exclusion zone at the Caltex service station on 14 October 2016. The stress arose as a consequences of a range of factors, including the long hours Mr Drysdale was working for JLP, his difficulties working night shift and trying to sleep during the day in a house in which his wife and children were living, his unsuccessful requests for annual leave during school holidays, and the limited time he was having with his children. Indeed, Mr Drysdale’s stress had reached a point where he was seriously considering resigning from his employment with JLP in about October or November 2016. The stress Mr Drysdale was under on 14 October 2016 is a relevant mitigating factor and I have taken it into account in my assessment of whether his dismissal was harsh, unjust or unreasonable.
[64] I do not accept that Mr Drysdale was fatigued during his shift on 14 October 2016. He asserted, in writing, in response to the draft investigation report that he “strongly disagree[d]” with the claim that he was not fit for work on 14 October 2016. Further, his diary, unlike other dates, does not include any note that he was fatigued on 14 October 2016, and Mr Drysdale completed his timesheet for 14 October 2016 by answering “yes” to the following questions:
● I am rested and fit for work; and
● Was this shift completed in compliance with the correct Driver Fatigue Management Guide?
[65] I accept that Mr Drysdale has always admitted he was on his mobile phone when unloading diesel fuel on 14 October 2016, and has repeatedly apologised for his use of his mobile phone at the Caltex site. His contrition is diminished a little by his attempt in his witness statement to argue that JLP’s Driver’s Reference Manual permitted him to use his mobile phone in the circumstances that he did on 14 October 2016. 33 The reference in the JLP Driver’s Reference Manual to a driver being entitled to use a mobile phone “when the vehicle is stopped and the park brake applied” is plainly intended to deal with the use of a mobile phone in the cabin of a truck, as distinct from during the process of unloading fuel at a service station. Use of a mobile phone in those circumstances is expressly prohibited in JLP’s policies and procedures, and JLP’s employees are, or ought to be, aware that “non-compliance with phone use policy will result in dismissal.”34
[66] I also accept that the consequences of Mr Drysdale’s summary dismissal were difficult for his personal and economic situation. He has a wife and children to support. He lives in a regional area 35 where it is difficult to obtain alternative full time employment. Mr Drysdale has obtained some alternative employment since his dismissal with JLP, but he has earned considerably less than he would have earned had he remained employed by JLP.
[67] In all the circumstances, I am satisfied that Mr Drysdale’s dismissal was not disproportionate to the gravity of the misconduct in which he engaged, nor was it harsh in any other sense.
Alleged bullying
[68] Mr Drysdale contends that Mr Weilley bullied and harassed him in a number of different ways and that caused him to become stressed and act in the way that he did on 14 October 2016. I do not accept Mr Drysdale’s allegations of bullying and harassment, nor do I accept that any conduct on Mr Weilley’s part caused Mr Drysdale to act in the way that he did on 14 October 2016. I address the primary allegations of bullying and harassment below:
(a) Mr Drysdale applied to take annual leave during school holidays on two occasions. Mr Weilley rejected both applications on the basis that other employees had already applied for, and had approved, applications for annual leave during those periods and the business could not sustain another employee being on annual leave at the same time. I accept Mr Weilley’s evidence that he rejected the applications for annual leave for those reasons and did not place any prohibition on Mr Drysdale taking annual leave at other times. Mr Silver also gave unchallenged evidence that Mr Drysdale had annual leave approved over the Christmas period in 2016/17. Having regard to all the relevant circumstances, I am satisfied that Mr Weilley did not bully or harass Mr Drysdale in relation to his applications for annual leave;
(b) I accept Mr Weilley’s evidence that he asked Mr Drysdale on two occasions to provide certain documentation in relation to a delivery of fuel made by Mr Drysdale. The documentation sought by Mr Weilley was required for billing purposes, but was not provided by Mr Drysdale. Mr Weilley came into work on a Saturday or Sunday and became frustrated at the fact that Mr Drysdale had not provided the document he requested. Mr Weilley sent a text message to Mr Drysdale to the effect that his paperwork was atrocious. Mr Drysdale took offence at the text message, including that it was sent to him on his day off on a weekend. The use of the word “atrocious” may have been a little intemperate on Mr Weilley’s part, but the text message did not, in my view, constitute bullying conduct in circumstances where Mr Drysdale had repeatedly failed to provide the document sought. The fact that the text message was sent on a weekend is not of any great moment. Mr Drysdale regularly worked weekends during his employment with JLP; he could have ignored the text message until he returned to work;
(c) Mr Drysdale asked Mr Weilley for some gloves for himself and his partner, Mr Greg Rice. Mr Drysdale says that Mr Weilley responded by saying words to the effect: “Fuck Rico I’m sick of you cunts why can’t he get his own pair?” Mr Weilley says that, in an attempt to be humorous, he said to Mr Drysdale “do you want two left or two right gloves”, at which time Mr Drysdale giggled. Mr Weilley said he went on to say “fuck Rico tell him to get his own”, at which time Mr Drysdale again giggled. No complaint was made by Mr Drysdale about this incident at about the time it occurred. If the discussion happened in the terms alleged by Mr Drysdale and he was, as he claims, intimidated by the way Mr Weilley spoke to him, it is likely, in my view, Mr Drysdale would have complained at the time. Further, no evidence was adduced as to why Mr Weilley may have been “sick” of Mr Rice and Mr Drysdale. For those reasons, I prefer Mr Weilley’s evidence over Mr Drysdale’s evidence in relation to this issue. I am satisfied that Mr Weilley was attempting to be humorous when he made these comments and Mr Drysdale viewed the comments in that way when they were made;
(d) On 19 December 2015, Mr Drysdale was given the task of delivering fuel to a Shell service station in Kempsey. At that time Mr Drysdale was on shift for 14 hours, including breaks. Mr Drysdale challenged Mr Weilley about it not being possible to do the delivery to Kempsey within the period of his shift. I accept Mr Weilley’s evidence that he told Mr Drysdale that he would get someone else to do the delivery and give him something else, at which time Mr Drysdale seemed to take offence, grabbed the paperwork and stormed out of the door. I also accept that Mr Weilley was genuine in his offer to provide other work to Mr Drysdale if Mr Drysdale did not wish to do the Kempsey run; and
(e) In December 2015, Mr Drysdale raised with Mr Weilley the fact that he was having difficulty sleeping at home because his kids were at home and they were making noise while he was trying to sleep. Mr Drysdale contends that Mr Weilley said to him words to the effect: “If your kids won’t shut up and let you sleep throw them out on the street.” Mr Weilley contends that he said words to the effect: “If your kids are the root of you not getting sufficient rest then perhaps your wife should respectfully get the kids away from the house to allow you to gain reasonable rest.” I am not persuaded that Mr Weilley used such soft language in his discussion with Mr Drysdale. Having observed and listened to Mr Weilley, a very experienced Operations Manager of a regional depot for a transport company, give evidence in these proceedings, I believe he would have been more direct in his response to Mr Drysdale and it is unlikely, in my view, that he used expressions such as “respectfully” and “reasonable rest”. I am satisfied, on the balance of probabilities, that Mr Weilley communicated to Mr Drysdale the message that if the source of his difficulties in obtaining sufficient sleep was the noise being made by his children, then Mr Drysdale should take action to have his children taken out of the house when he was trying to sleep. The message may well have been delivered by Mr Weilley in a blunt way, but it was a practical piece of advice aimed at assisting Mr Drysdale to get the sleep he needed. Mr Weilley assisted Mr Drysdale to deal with the hours he was working by commencing work late one day and by starting or finishing a shift at Nabiac, closer to Mr Drysdale’s home. In all circumstances, I am satisfied that Mr Weilley’s conduct in relation to this issue did not constitute bullying or harassment.
[69] In light of my conclusion that Mr Weilley did not bully or harass Mr Drysdale, I do not need to decide the factual dispute concerning whether Ms Drysdale informed Mr Pierce of the range of bullying allegations against Mr Weilley.
Inconsistent treatment
[70] Mr Drysdale asserts that he was unfairly afforded inconsistent treatment by JLP in relation to his dismissal. He points to other employees who either received oral warnings or no sanction as a consequence of their conduct at other times.
[71] In Darvell v Australian Postal Corporation[2010] FWAFB 4082, the Full Bench made the following comments in relation to the question of differential treatment between employees (at [21]-[24] references omitted):
“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton's case, his Honour said:
"[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made."
[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.
[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:
"[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that 'there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable." [Footnotes omitted]
[24] We respectfully concur with their Honours.”
[72] Mr Drysdale contends that he was treated unfairly by being summarily dismissed compared to:
(a) Mr Bennett, who drove into where the exclusion zone would have been had it been set up by Mr Drysdale on 14 October 2016 and proceeded to distract Mr Drysdale by speaking to him. Further, Mr Bennett admitted in cross examination that he completed a competency assessment for Mr Drysdale. Mr Bennett was not disciplined in relation to either incident; and
(b) Mr Hill, who has been fined for traffic infringements, namely passing through a red light camera and making a right hand turn out of hours. Mr Hill was given an oral warning by JLP for his traffic infringements.
[73] As to Mr Bennett, there is no evidence to suggest that JLP was aware that Mr Bennett undertook the competency assessment for Mr Drysdale. In addition, no evidence was adduced in relation to the circumstances in which Mr Bennett undertook the competency assessment for Mr Drysdale, including why he did it or whether it gave rise to any risk. It is not possible to undertake a proper comparison between Mr Bennett’s conduct and Mr Drysdale’s conduct without such evidence.
[74] Mr Bennett gave oral evidence that he drove his car to a position about five metres away from Mr Drysdale’s truck and the spill box on 14 October 2016. 36 Mr Bennett accepted in his oral evidence that he drove into the area where the exclusion zone would have been had it been set up at the rear of the truck,37 but maintained that he kept a safe distance away.38 In his email to Mr Weilley dated 17 October 2016, Mr Bennett informed him that his car was “3-4 metres away from the truck.”39 That is broadly consistent with his oral evidence of about five metres, as is his assertion in his witness statement that he stopped his car “a few metres from the tanker”.
[75] JLP’s SWMS requires a delivery driver to “establish a work area around fill points using a minimum of six safety cones, placed at minimum - 4 meter hazard zone that extends laterally from the tanker discharge point and 3 metres from the tank fill point.” JLP’s policies and procedures also require a delivery driver to cease unloading fuel if they are distracted. These obligations are imposed on the delivery driver, not a Senior Driver Trainer such as Mr Bennett, who approaches a driver on site because the driver is not following JLP’s policies and procedures. If the driver is distracted by the Senior Driver Trainer or any other person, he must stop delivering fuel. Even if, contrary to my earlier finding, the obligations were imposed on Mr Bennett in his capacity as a Senior Driver Trainer attending the site because he identified a safety breach, there is a further flaw in Mr Drysdale’s argument of inconsistent treatment. In particular, there is no evidence that JLP was aware of any breach of policy or procedure by Mr Bennett in relation to the positioning of his car on 14 October 2016. Taking the evidence at its highest, Mr Bennett notified Mr Weilley in his email dated 17 October 2016 that he drove his car to “within 3-4 metres away from the truck”. That email does not disclose how close Mr Bennett’s car was to either the “tanker discharge point” or the “tank fill point”. JLP was therefore not on notice that Mr Bennett had driven his car within any prohibited distance of either the “tanker discharge point” or the “tank fill point”. It follows that JLP did not treat Mr Drysdale unfairly compared to Mr Bennett.
[76] As to Mr Hill, no evidence was adduced as to the circumstances of either traffic infringement or the risks associated with the conduct in which Mr Hill engaged at the time. Absent such evidence, it is not possible to undertake a proper comparison between Mr Drysdale’s conduct and Mr Hill’s conduct.
[77] For the reasons set out above, I find that the different treatment of Mr Drysdale to Mr Bennett and Mr Hill was not unfair.
Conclusion
[78] JLP had sound, defensible and well founded reasons for dismissing Mr Drysdale on the basis of his conduct. In particular, Mr Drysdale’s dismissal was based on his substantial breaches of JLP’s policies and procedures. JLP undertook a detailed investigation into Mr Drysdale’s conduct. JLP gave Mr Drysdale every chance to participate in the investigation and respond to the allegations made against him before the final decision was made to terminate his employment. He was afforded procedural fairness throughout the process.
[79] After considering each of the matters specified in section 387 of the Act, I am satisfied that JLP’s dismissal of Mr Drysdale was not harsh, unjust or unreasonable. Mr Drysdale’s unfair dismissal application is therefore dismissed.
COMMISSIONER
Appearances:
Mr M Lynch, solicitor, appeared for the Applicant
Mr M Seck, of counsel, appeared for the Respondent, instructed by Mr M Parker, solicitor
Hearing details:
2017
Newcastle
February 27 and 28
1 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
2 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
3 Ibid
4 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
5 Ibid
6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].
7 Ibid
8 Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363
9 Ibid per Dixon J at p 362
10 Ibid per Rich J at p 350
11 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
12 [2013] FWCFB 6191
13 Exhibit 1 at [25]
14 PN695
15 PN693
16 Exhibit R4 at [58]
17 PN704
18 PN705-9; Exhibit R5 at DB-4
19 PN729-734
20 PN742
21 PN780
22 PN799-804
23 PN783-786
24 PN952-955
25 PN957-965 & PN993
26 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
27 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
28 Previsic v Australian Quarantine Inspection Services Print Q3730
29 RMIT v Asher (2010) 194 IR 1 at 14-15
30 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].
31 [2013] FWCFB 6191
32 Regulation 1.07(2)(b) of the Fair Work Regulations 2009 (Cth)
33 Exhibit A1 at [27]
34 See paragraph [11] above
35 Forster
36 PN2094
37 PN2099-2103
38 PN2154
39 Exhibit R5 at annexure DB-1
Printed by authority of the Commonwealth Government Printer
<Price code C, PR590696>
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