Roy Lucas v Bingo Group T/A Homebush Bay Recycling Centre
[2012] FWA 5945
•16 JULY 2012
[2012] FWA 5945 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Roy Lucas
v
Bingo Group T/A Homebush Bay Recycling Centre
(U2011/9907)
COMMISSIONER HARRISON | SYDNEY, 16 JULY 2012 |
Application for unfair dismissal remedy.
[1] This decision arises from an application by Mr Roy Lucas for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment by Bingo Group T/A Homebush Bay Recycling Centre (Bingo).
[2] At the hearing on 5 July, Mr Lucas was represented by Mr C. Burge, solicitor. Bingo was represented by Mr D. Knoll of counsel instructed by Mr M. Abrahamian, solicitor.
[3] Evidence was given by Mr Lucas on his own behalf and by Mr Hamendra Kumar, pursuant to an order to attend. The following witnesses gave evidence on behalf of Bingo:
- Mr Bruce Gunter - Transport and Plant Manager
- Mr Brad Guilfoyle - Plant and Maintenance Supervisor
- Mr Eddie Sarkis - Site supervisor
- Mr Darren Scanlon - Workshop Supervisor
[4] At the time of his termination on 9 July 2011 Mr Lucas was employed as a Plant Mechanic and his duties included driving trucks to and from various locations.
[5] On 21 June 2011 Mr Lucas was driving a 6 tonne truck laden with 300 litres of fuel when he ran into the rear of a vehicle, which was towing a boat and trailer whilst it was stationary at traffic lights.
[6] The stretch of road where the accident occurred is a black spot and the approaches are sign posted “Steep Descent 1 Km ahead” and “Trucks & Buses must use Low Gear” in addition to a speed limit of 20 km/h for trucks and buses.
[7] Following the accident Mr Lucas was charged with negligent driving. He appeared in Manly Local Court on 9 February 2012, pleaded not guilty but was convicted and fined.
[8] The reasons for termination were set out in a letter signed by Mr Gunter, Transport Manager to Mr Lucas which in part, stated:
- Negligent driving resulting in a vehicular accident.
“This letter is to give you notice that your employment with HBRC Pty Ltd (the Company) is terminated with immediate effect.
The Company is terminating your employment because you have engaged in the following misconduct:
On 21 June 2011 at approximately 1.00pm you were driving down Brookvale Hill (junction of Warringah Road and Pittwater Road) in company vehicle BIN636 at speeds, which by your own admission, were in excess of the 20km/hr speed limit for trucks in this area, resulting in the rear end collision of Bin 636 and a vehicle towing a boat trailer which was stationary at the lights of the above mentioned intersection. On questioning and investigation by police arriving at the accident, you admitted to them that your were driving at excessive speed which has resulted in you being charged with negligent driving.
This conduct constitutes gross misconduct. You have been given an opportunity to provide reasons why we should question the facts outlined above, but nothing in your response and subsequent confirmation by the police involved in responding to the accident, and our internal investigation, suggests our findings are misplaced.”
Applicant’s Evidence
[9] Mr Lucas denied that he was negligent in causing the accident. He stated that he had reported the truck brakes as faulty seven or eight days before the accident to his superiors. The truck was inspected and “... found it had leaking oil cylinders.” 1
[10] As the truck was under warranty it was decided by the respective supervisors, Mr Scanlon and Mr Guilfoyle to return it to the authorised dealer, Gilbert & Roach, to replace the cylinder.
[11] It was Mr Lucas’ evidence that on the day of the accident he had been travelling from his base at Homebush to Brookvale to deliver fuel. He stated he was not happy with the brakes and stopped at a service station to buy refreshment. At this time”... I just walked around the truck, had a look, to make sure there were no leaks, and then I continued on ... Did you notice any leaks? ... No.” 2
[12] In his evidence in chief, Mr Lucas described the lead up to the accident as follows:
“As you approached that area where the speed limit drops for trucks, did you do something?---Yes, I was trying to slow down, going down through the gears, and I applied the brakes and nothing happened. It just went straight to the floor and then I applied the park brake. Nothing happened again. The truck just kept on going.
I think again it’s common ground that eventually there was a collision at the bottom of the hill - - - ? --- That’s right.
- - - where the vehicle ran into the back of a boat trailer and a boat? - - -That’s correct.” 3
[13] Following the accident police attended the scene. Sergeant Buko and Constable Drake took statements from Mr Lucas. The Brookvale site manager for Bingo. Mr Eddie Sarkis also attended. He told Mr Lucas he had to drive the truck back to Homebush.
[14] When Mr Lucas arrived back at Homebush he spoke to Mr Brad Guilfoyle and told him, “The brakes just completely went. There was nothing there.”
[15] During cross examination Mr Lucas contradicted his earlier evidence that when he stopped at the garage for refreshment he looked for leaks. He stated, “I looked around the truck. I didn’t say I looked for leaks.” 4
[16] Mr Lucas stated he did not consider refusing to drive the truck back to Homebush after the accident.
[17] Mr Hamendra Kumar is a motor mechanic employed by Bingo. It was his evidence that he had driven the truck in question a number of times before and after the accident. He suspected the brakes “... were not 100%”. He advised Mr Gunter the Transport Manager who took the truck for a test drive.
“What did, if anything, did you notice about the vehicle as he was driving it?
---When he came back, he drove through the wheel wash, and a lot of steam came out from the tyres, and after that he told me that the brakes were right, he had tested it, he had gone really hard on it, and through that smoke that came out from the wheel wash, I knew that he had really tested, and he said to me that the brakes on those trucks worked that way.” 5
[18] In cross examination it was put to Mr Kumar that the test drive could have taken place after the accident. He replied he was not a hundred percent certain.
“If it was after the accident, when there was a lot of pressure applied to the brakes going down a hill, you would expect to see the drums were glazed and looked like they had been heated, yes?---Yes.” 6
...
I'll make it clear. As a motor mechanic, you would be able to recognise if drums had been glazed? ---Yes, sure.
If the drums are glazed, they're much more likely to give off steam than if they're not glazed? ---Yes.
So if you saw steam coming off the brakes, you would accept that it's quite likely, that's because they'd been glazed? ---Yes.”
Would you now accept from me that when you observed the steam coming from the brakes, that was after they had been glazed on 21 June? ---Yes.” 7
Respondent’s Evidence
[19] Mr Bruce Gunter is the Transport and Plant Manager for Bingo. It was his evidence in chief that he test drove the truck after the 21 June accident following a conversation with Mr Kumar.
[20] Mr Gunter confirmed it was normal procedure for faults to be recorded in a faults record book. In his witness statement Mr Gunter states that as a mechanic, it was open to Mr Lucas to use the “Lock Out Tag Out System” to ensure that the truck was not moved until it had been inspected or repaired. This was not done before or after the accident.
[21] In cross examination Mr Gunter conceded that his findings of gross misconduct against Mr Lucas were never put to him before he was terminated. He stated his decision to terminate arose from a conversation he had with Sergeant Buko the day before.
[22] In his witness statement Mr Gunter sets out the conversation he had with Sergeant Buko which gave rise to his decision to terminate:
“On 8 July 2011, I telephoned Sergeant Michael Buko of the NSW Police, Northern Beaches Local area Command. We had a conversation to the following effect:
BG:- ‘Why wasn’t the truck towed from the scene?
MB:- ‘Because the driver said he had sped down the hill, he didn’t say there was any mechanical fault or other reason as to why it could not be driven.’
BG:- ‘Has Roy Lucas been charged with any office?’
MB:- ‘Yes, he’s being fined for negligent driving. He admitted to me that he was speeding down Brookvale Hill, and that he hit a car and trailer at the bottom of the hill.’
BG:- ‘Roy told me that the brakes on the truck failed.’
MB:- ‘As I was speaking to him, I gave him an opportunity to say that the brakes had failed, but Mr Lucas didn’t say that. I asked him if the main factor was that he was going too fast down the hill. He agreed that he had been going too fast. In the course of speaking to him, I told him a story about a child who had been incinerated in an accident on the same hill, and the same intersection, a few years ago in the same circumstances. Mr Lucas showed no interest in that story at all, he showed no remorse. I contacted Mr Brad Guilfoyle on the night of the accident and told him about that. I also tried to call Mr Lucas twice to tell him he was going to be charged, and to discuss the accident, but he has not called me back. Has Mr Lucas returned to work?’
BG:- ‘Yes he has.’
MB:- Well I’m glad you contacted me and that you are taking action in relation to this, but I’m disappointed that he’s still driving trucks. His driving was negligent, and he was driving too fast down that hill. I felt the front wheels on the truck when I arrived at the accident, they were red hot.” 8
[23] Mr Gunter’s evidence concerning the above conversation was not challenged.
[24] Mr Brad Guilfoyle is the Plant and Maintenance Supervisor for Bingo. In his witness statement he recalled receiving a phone call from Mr Lucas on 21 June reporting he had an accident on Brookvale Hill. He recalled the conversation with Mr Lucas saying he was travelling at 40km/h down the hill and the truck did not stop at the bottom. When Mr Lucas arrived back at Homebush he and Mr Gunter had the following conversation:
“GB:- ‘What happened?’
RL:- ‘I was doing only 40km/h down the hill and when I got to the bottom the truck wouldn’t stop.’
BG:- ‘Well the hill has a truck speed limit of 20km/h. You must have cooked the brakes. What happened to the other car?’
RL:- ‘The car had a boat trailer. It was damaged a bit.” 9
[25] Mr Guilfoyle then drove the truck to Gilbert & Roach for brake testing. In his opinion the brakes were working normally as he drove and the test results were normal. A printout of the test results was annexed to Mr Guilfoyle’s statement.
[26] Under cross examination Mr Guilfoyle denied Mr Lucas had told him the brakes were faulty. He was aware a wheel cylinder had been replaced under warranty following detection of leaking fluid on the backing plate as distinct from the brake drum.
[27] In further evidence for Bingo, Mr Eddie Sarkis stated Mr Lucas did not suggest brake failure as a cause when he attended the accident scene. He denied Mr Lucas objected to driving the truck back to Homebush. In cross examination Mr Sarkis agreed he told him to drive the truck if it was okay to drive.
[28] It was Mr Darren Scanlon’s evidence that in his opinion as a 17 year qualified Diesel Mechanic, burnt brake drums and glazed brake shoes would only slightly reduce braking efficiency and would not cause brake failure.
[29] Sergeant Michael Buko and Senior Constable Drake of the NSW Police provided statements which were also tendered in the Manly Local Court proceedings. Neither officer was called for cross examination. Part of Sergeant Buko’s statement is as follows:
“I approached the accused LUCAS and had a short conversation with him. I walked over to the drive’s side of the truck and stood near the tyre. I immediately felt extreme heat coming from the disc area of the front right wheel. I looked down and could see a light red glow on the disc of the brakes.
I then took a version from the driver of the van towing the boat being Stewart BUCHAN.
I now produce a copy of this statement I obtained.
I had a conversion with Senior Constable DRAKE who informed me that the accused believed his truck brakes were faulty.
I approached the accused and said words to the effect of, ‘I have spoken to Senior Constable DRAKE and she informed me that you think your brakes are faulty. Firstly I want to inform you that you made a statement to her stating you were travelling at 40-45km/h. This is a well known sign posted truck zone speed limit area 20km/h. You should be using air brakes or very little brakes coming down here, which I can tell you, have not done so by the heat coming from the wheels of your truck. This scene right here years ago was where a young baby was killed because a truck exceeded the 20km/h truck speed limit, the truck crashed into the car and the baby burnt to death. If you continue with this notion that your truck brakes are faulty it will be red labelled and towed’.
The accused made no reply.
The truck was inspected and appeared to still be driveable and following Mr Sarkis and the accused having a conversation it was decided that they would continue to drive the vehicle back to their yard.” 10
Applicant’s Submissions
[30] It was submitted that the termination of Mr Lucas was both substantially and procedurally unfair. The replacement of the truck’s braking system post accident was said to support the contention that the system was faulty.
[31] Mr Lucas was never given an opportunity to put his version of events before he was terminated. Mr Burge submitted that in this matter where a man is contesting a negligent driving charge, his employer pre-emptively did the job of the court and terminated him without an opportunity to respond to matters with which they had held discussions with police officers.
Respondent’s Submissions
[32] It was submitted Mr Lucas knew he could refuse to drive the truck if he felt it was unsafe both before and after the accident. Rather, he behaved negligently and recklessly as to his safety and the safety of other road users.
[33] The evidence of Messrs Gunter, Guilfoyle, Scanlon and Sarkis was that the truck had been driven almost every day before and after the accident and they found no problem with the brakes when they each drove it. It was said “there are people who, from time to time, persist with a constructive version of the facts that cannot alight with reality. Mr Lucas is such a person.” 11.
[34] Bingo submitted that the Tribunal should not depart from the finding of the magistrate concerning the negligence of Mr Lucas.
Conclusions
[35] In this matter there is no issue that the Applicant is a person protected from unfair dismissal. The question for determination is whether the termination of the Applicant’s employment was unfair within the meaning of s.385 of the Act.
[36] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied that:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
Paragraphs (c) and (d) are not relevant in this matter.
[37] In determining whether the termination was harsh, unjust or unreasonable I turn to s.387 of the Act, which sets out the factors to be taken into account. Those factors are:
“(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[38] I have carefully considered the evidence in this matter particularly the testimony of Mr Sakis and Sergeant Buko.
[39] Mr Sakis attended the accident scene on 21 June and spoke to Mr Lucas whom he states did not suggest that the brakes had failed in any way. Furthermore Mr Sarkis was unswerving in rejecting the claim that Mr Lucas did not want to drive the truck back to Homebush.
[40] The unchallenged evidence of Sergeant Buko was that the brakes on the truck were extremely overheated consistent with overuse yet on later inspection the truck was still driveable. Despite being provided an opportunity to blame faulty brakes Mr Lucas failed to do so.
[41] Where the evidence of Mr Lucas differs with that of Messrs Sarkis and Buko, I prefer the evidence of the latter.
[42] On the evidence before me the truck brakes were not faulty at the time of the accident. On the balance of probabilities the truck was travelling over the 20 km/h speed limit on a steep incline causing the brakes to overheat but not fail.
[43] Mr Gunter reached the same conclusion in deciding to terminate Mr Lucas. He also noted Mr Lucas was not contrite or prepared to accept responsibility which led to loss of trust and confidence in the employment relationship.
[44] Having regard to the evidence before me of the findings I have made I am satisfied there was a valid reason for the termination of Mr Lucas’ employment.
[45] Mr Lucas was notified of the reasons for termination in a letter given to him at the time of termination. He had not been previously warned or given the opportunity to have a support person with him. Mr Lucas was not given an opportunity to respond to any allegations before the decision had been made to terminate his employment. The termination process was no more than an ambush and Mr Lucas was denied procedural fairness.
[46] Bingo employs 160 persons and at the time of the termination did not employ or engage dedicated human resource specialists. This was a factor in the unsatisfactory termination process. Mr Lucas was entitled to better.
[47] In all of the circumstances of this matter I find the termination was harsh and the termination procedure unfair.
Remedy
[48] Mr Lucas was employed by Bingo for over two years. He is 66 years of age and since the termination he has made some attempt to find other work but in his own evidence “... I couldn’t get anywhere with the jobs, and that’s when I eventually went for my war pension.” 12 He has been a recipient of the war service pension since December 2011.
[49] Given the loss of trust and confidence, the effluxion of time and Mr Lucas’ current arrangements, reinstatement is not an appropriate remedy in this matter. I therefore turn to consider a payment of compensation in lieu.
[50] Section 392(2) of the Act provides:
“(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.”
[51] Having regard to the criteria above, nothing was put to me during the hearing concerning the effect an order may have on the viability of Bingo.
[52] I have noted above the period of service of Mr Lucas which is relatively short.
[53] Prospective estimates of future remuneration and efforts to mitigate loss are in the circumstances of this matter somewhat academic given the decision by Mr Lucas to retire on a war service pension.
[54] Section 392(3) of the Act provides:
“(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.”
[55] In this matter misconduct was the contributing factor in the termination.
[56] Having regard to all of the factors regarding remedy above I consider the amount I should order shall be the equivalent of six weeks remuneration.
[57] The gross weekly pay for Mr Lucas at the time of termination was $1140. Having considered all of the matters under s.392 I determine that the amount of compensation to be ordered in this matter is $6,840 less applicable taxation.
[58] An order giving effect to this decision will issue as print PR526346.
COMMISSIONER
Appearances:
C Burge for the applicant.
D Knoll of counsel with M Abrahamian for the respondent.
Hearing details:
2012.
Sydney:
July 5
1 Transcript PN75
2 Transcript PN95-96
3 Transcript PN92-94
4 Transcript PN331
5 Transcript PN557
6 Transcript PN574
7 Transcript PN582-585
8 Exhibit K5, para. 9
9 Exhibit K6, para. 8
10 Exhibit K4 paras. 5-10
11 Transcript PN1025
12 Transcript PN491
Printed by authority of the Commonwealth Government Printer
<Price code C, PR526274>
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