Russell v Dyers Gippsland Transport
[2009] FWA 887
•29 OCTOBER 2009
[2009] FWA 887 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Dyers Gippsland Transport
(U2009/10074)
COMMISSIONER WHELAN | MELBOURNE, 29 OCTOBER 2009 |
Application for unfair dismissal remedy.
[1] This is an application by Mr Russell under the provisions of section 394 of the Act in which he claims an unfair dismissal remedy on the basis that the termination of his employment by the respondent was harsh, unjust or unreasonable.
[2] Mr Russell represented himself and gave evidence on his own behalf. Mr Dyer represented the company and Mr Rendall gave evidence for the company.
Background
[3] Mr Russell was employed by the respondent in December 2007. He was, at the time, an experienced driver and held a Certificate III in warehouse and transport distribution. His duties involved the delivery of refrigerated and dry groceries to IGA and Foodworks Supermarkets in metropolitan Melbourne and country Victoria.
[4] Mr Russell’s employment was terminated on 1 July 2009. It was Mr Russell’s evidence that on that day he had been delivering refrigerated goods in the Frankston area. It was raining heavily with gusty winds.
[5] He drove his truck and trailer into the dairy area of the depot and noticed Mr Rendall looking at his vehicle. When he looked up he could see damage on the top right hand corner of the trailer. This was the first time he was aware of the damage.
[6] He then drove the vehicle down to the dry goods area and parked outside the office. Mr Rendall was inside talking to Mr Dyer. After Mr Dyer left, Mr Rendall asked to see him. Mr Rendall pointed out the damage to the vehicle. Mr Russell told him that he had only just noticed it.
[7] Mr Rendall’s evidence was that he noticed damage to the vehicle in the yard. He expected Mr Russell to report the damage. He did not report the damage and was instead taking the trailer back to the dairy area where it would be hard to determine who was responsible for the damage. When he spoke to Mr Russell he told him that he had hit a tree doing a delivery in Norman Avenue, Frankston. When asked why he had not reported the damage, Mr Russell said that he was going to do so but Mr Rendall did not believe him.
[8] Mr Rendall spoke to Mr Dyer and they decided to terminate Mr Russell’s employment immediately. Mr Russell had previous warnings, including one for not reporting damage to a vehicle. During the period of his employment he was involved in eight incidents resulting in damage to the vehicle he was driving and had two prior written warnings.
Submissions
[9] Mr Russell submitted that the termination of his employment was unfair because there was no valid reason for the termination. He had not knowingly caused damage to company equipment. He did not believe that damage to the roof was the driver’s responsibility because the employer was sending vehicles that are in excess of 3.9 to 4 metres down residential streets where there are trees and power lines. Further, he was not given procedural fairness. He did not believe that the prior warnings were justified.
[10] Mr Dyer submitted that Mr Russell’s record of damage to vehicles was five or six times that of any of the other drivers. On the day Mr Russell blamed the weather conditions for the damage to his trailer, no one else reported any damage. The company has a big problem with unreported damage. The next driver to take the vehicle should not be responsible for reporting the damage. It is bad for morale. IGA also has expectations of the company in terms of how the trailers (which are badged ‘IGA’) are presented.
[11] The company were very patient with Mr Russell. They only asked him to report damage. There are certain standards they try to uphold.
Conclusions
[12] Mr Russell’s employment was terminated for a failure to report damage to a vehicle he was driving. He had a previous warning for failure to report damage to a vehicle and a second warning for leaving perishable goods outside a store without obtaining a delivery signature or ringing a supervisor to seek advice on what he should do.
[13] In the period of about 18 months he had been involved in eight incidents which resulted in damage to a company vehicle. It was Mr Dyer’s assessment that Mr Russell had trouble with the nature of the job.
[14] I am satisfied that Mr Rendall’s version of the events on 1 July 2009 should be preferred and that it was reasonable for Mr Rendall to conclude that unless he had noticed the damage to the vehicle being driven by Mr Russell it would not have been reported.
[15] There are criticisms that can be raised of the procedure adopted by Mr Rendall and Mr Dyer on that day. The version of events given by both Mr Rendall and Mr Russell suggest Mr Russell was not given the opportunity to respond to the reason for the termination prior to the dismissal being effected. He did not request a support person when he was spoken to by Mr Rendall. He had previous warnings, one of which was for a similar incident. The employer is not a large business and did not appear to have any specialist human resources staff.
[16] While there may have been flaws in the process, I am satisfied that it would not have altered the outcome if Mr Russell had been given a greater opportunity to defend himself.
[17] For these reasons I am satisfied that the termination was not harsh, unjust or unreasonable and the application is therefore dismissed.
COMMISSIONER
Appearances:
M. Russell, applicant in person.
G. Dyer with M. Russell for Dyers Gippsland Transport.
Hearing details:
2009.
Melbourne:
October 8.
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