Salesh Chand v Endeavour Energy

[2014] FWC 7414

[2014] FWC 7414

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Salesh Chand
v
Endeavour Energy
(U2014/7872)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 OCTOBER 2014

Application for relief from unfair dismissal.

[1] Mr Salesh Chand alleged that the termination of his employment by Endeavour Energy was unfair.

[2] On 22 March 2014, Mr Chand’s driver’s licence was suspended. Mr Chand reported this to his employer. Mr Chand was due to attend court on 15 April 2014 in relation to this suspension. On 26 March 2014, Mr Chand was advised that the suspension of his licence meant he could not perform the inherent requirements of his position and he was stood down on special paid leave. He was advised that should his licence be suspended, Endeavour Energy would need to review his ongoing employment. He was put on notice that his employment may be terminated.

[3] On 24 April 2014, Mr Chand’s licence was suspended for 12 months. On 15 May 2014, Mr Chand lodged an appeal against that decision.

[4] On 26 May 2014, Mr Chand met with Mr Darren Baker and Mr Steven Baker from Endeavour Energy. Mr Chand said he was sick at the time but he decided to attend the meeting.

[5] Mr Darren Baker told Mr Chand that Endeavour Energy was going to terminate his employment and gave him a termination letter. Mr Darren Baker gave Mr Chand a copy of the job description of a technical support officer and Mr Ian Sharp told him that was his position. Mr Chand told them that that was incorrect and that he had not applied for that position. 1 Mr Chand was paid four weeks pay in lieu of notice.

[6] Mr Chand attended work the next day to return property and told Mr Steven Baker that he was willing to do alternative work that didn’t require a driver’s licence. He also told Mr Steven Baker that there were other employees that had lost their licences who had been given alternative roles to help them. 2

[7] After his employment was terminated Mr Chand discontinued his appeal.

[8] The parties are in dispute about whether it was an inherent requirement of his employment that Mr Chand have a driver’s licence.

[9] Mr Chand gave evidence that he was employed as a Transmission Technical Support Officer. Mr Chand denied that having a driver’s licence was an essential requirement of his position. To support that submission he relied up the job advertisement and the job offer he received at the time. 3

[10] Endeavour Energy provided a position description for a Technical Support Officer/Projects/Maintenance which was submitted to be the position description for Mr Chand’s role. That job description provided that the employee was required to hold a Class 1A Driver’s Licence. 4

[11] Mr Chand disputed that this was his job description and pointed to the fact that the name of the person on the job description was not him, and he relied upon the fact that Endeavour Energy had not produced a copy of a job description with his name on it.

[12] Mr Chand gave evidence that when he commenced employment his job was purely office based. After 2007, he was directed by his manager to help with project work. He said that his job involved 20% driving after 2007. 5 Mr Chand said project work included major fit outs for substations. This meant he had to go out to sites. He went to sites by himself and at times with other staff.6

[13] Prior to 2012, Mr Chand was provided with a vehicle which he could take home. In 2012, Endeavour Energy revised its car allocations and determined that as Mr Chand was not required to be on a standby roster, or was not a front line manager who was on call, or was not required to start or finish on the job at least 40% of the days, there was no business case for him to have a take home vehicle. After 2012, Mr Chand’s vehicle was reclassified as a pool vehicle and it was no longer able to be taken home. 7 Mr Chand was one of a number of employees who challenged this decision in the Commission.8

[14] The number of times Mr Chand had to go out to site varied from week to week. 9 Mr Chand tendered his performance review and career development plan for 2008/09 and 2009/10. Those plans provided as one of his KPI’s that he was required to regularly visit work sites.10

[15] Mr Chand gave evidence that another employee who was not required to drive as part of his duties had agreed to swap jobs with him. 11

[16] Mr Chand gave evidence that other employees who were unable to drive for a variety of reasons, including that they had lost their drivers’ licence, were accommodated either by being transferred to office based jobs or by having other employees drive them. 12

[17] Mr Chand submitted that having a driver’s licence was not a condition of his employment. 13

[18] Mr Chand said it was unfair for Endeavour Energy not to wait until his appeal was heard. He submitted that the letter to him dated 26 March 2014, said that the company would await the decision of the court and they should have waited until the appeal was heard. 14

[19] Mr Chand also submitted that Endeavour Energy failed to consider the job swap he had arranged. 15

[20] Mr Chand also submitted that Endeavour Energy failed to have regard to his 11 years service and his above average performance. 16

[21] Mr Chand also submitted that Endeavour Energy did not give him the opportunity for a show cause meeting. 17

[22] Mr Chand submitted that Endeavour Energy failed to allow him to take his long service leave at half pay which would have meant there was only four months when he couldn’t drive. Also if he had been employed when the appeal was heard, he could have agreed to have an interlock device fitted to his vehicle and his suspension would have been reduced to six months. He also submitted that he could have arranged other ways for material to be delivered to sites at no cost to Endeavour Energy. 18

[23] Mr Chand also submitted that Endeavour Energy had failed to have regard to his personal circumstances. 19

[24] Mr Darren Baker gave evidence for Endeavour Energy. 20 Mr Baker gave evidence that Mr Chand was required to regularly attend work sites to provide technical support and deliver materials when required. He explained that the position description relied upon by Endeavour Energy was a generic position description for all technical support officers. The reason it had another employee’s name on it was because the last time the position description was evaluated it had the then incumbent’s name on the position description.21

[25] Mr Baker said that Mr Chand would have been given a copy of the position description when he applied for the original position. He said that the position description was attached to his recruitment file along with the letter of offer. 22

[26] In response to my question as to why Mr Chand’s proposal that he swap positions with another employee who had an office based job could not proceed, Mr Baker said that the other employee was only willing to do this for a short period of time. 23 Mr Baker said there were no other vacant positions.24

[27] Mr Baker gave evidence that the car assigned to Mr Chand since 2007 had travelled 88839kms being approximately 13,400kms per year. 25

[28] Endeavour Energy submitted that at the time of his suspension, neither Mr Chand nor his union challenged Endeavour Energy’s contention that having a driver’s licence was an inherent requirement of the job. 26

[29] Endeavour Energy submitted that it did comply with its undertaking to await the outcome of the court case. It was submitted that it had never undertaken to await the outcome of the appeal. 27

[30] Endeavour Energy submitted that Mr Chand could have, at any time during the two month suspension, challenged Endeavour Energy’s decision to stand him down. He could have also challenged the advice that his employment was at risk but he took no action. 28

[31] Endeavour Energy submitted had it permitted Mr Chand to take long service leave, even at half pay, it would not have covered the entire period of the suspension and it would have been required to fill his position for the remaining time and it would have had a surplus employee upon his return. 29

[32] Endeavour Energy submitted that Mr Chand was given eight weeks paid special leave and four weeks’ pay in lieu of notice and that to accommodate Mr Chand would have placed an unreasonable burden on Endeavour Energy. 30

[33] Endeavour Energy accepts that a job swap was discussed but it submitted that it never agreed to the proposed job swap. 31

[34] In response to Mr Chand’s proposed alternatives to dismissal Endeavour Energy submitted that these were not proposed prior to his termination and in any event were not acceptable to Endeavour Energy. 32 In response to Mr Chand’s proposal that he could have organised suppliers to deliver materials, Endeavour Energy submitted that this did not suit their business needs.33

[35] Whilst acknowledging Mr Chand’s personal situation it was submitted that this was not relevant consideration. 34

Was the termination of employment harsh, unjust or unreasonable?

[36] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[37] I find, for the following reasons, that it was an inherent requirement of Mr Chand’s job that he have a driver’s licence.

[38] The job description makes the requirement explicit. I accept the explanation about why another person’s name was on the job description. Further Mr Chand, other than challenging the title of the job and that it did not have his name on the document, did not challenge the content of the job description.

[39] Even if the position description had not been given to Mr Chand when he commenced employment, Mr Chand’s evidence was that he was required as part of his duties to attend sites and that he did so at least once a week.

[40] It is also uncontested that from 2007 until 2012, Mr Chand was provided with a car to enable him to attend sites. After that date, while the car was a pool car, it was still assigned to Mr Chand to enable him to attend sites.

[41] Mr Chand tendered performance appraisals, which provided that attending sites was a key requirement. Apart from having someone else drive him to the sites, Mr Chand did not give any evidence about how he could meet this requirement if he did not have a licence.

[42] Also Mr Chand did not deny the proposition put to him, that in 2012, Mr Chand’s union had put that the take home vehicles should not be taken away from the employees including him because they were used for work purposes. 35 After 2012, Mr Chand did the same work but used a pool car instead.

[43] Mr Chand clearly recognised that he could no longer do his job, because when he lost his licence, he immediately sought to swap his job with a job that did not involve driving.

[44] If Mr Chand and his representatives were of the view that having a driver’s licence was not an inherent requirement of his job, Mr Chand could have disputed the stand down at the time. He did not.

[45] I also accept the evidence of Endeavour Energy, that there was not another position Mr Chand could have filled for 12 months. There was no evidence that any other employee was willing to swap with Mr Chand for this period of time.

[46] Mr Chand gave examples of other employees who were unable to drive for a variety of reasons, who were either given an alternative role or had someone drive them.

[47] Whilst in these circumstances an employer may chose to reorganise work, it is not incumbent on them to do so. It is not clear from the examples provided by Mr Chand when these events occurred or for how long the employees were not been able to drive. In any event at the time Mr Baker said Endeavour Energy was not willing to require another employee to vacate his or her position and there were no vacant positions for Mr Chand to fill.

[48] I find therefore that Endeavour Energy had a valid reason to terminate Mr Chand’s employment.

s387(b) whether Chand was notified of that reason;

[49] Mr Chand was put on notice, that if his loss of licence was endorsed by the court his employment was at risk.

s387(c) whether Chand was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[50] Mr Chand was not given an opportunity to respond to the decision. Mr Chand was called to a meeting and given his letter of termination. He was not provided with an opportunity at that meeting to propose any alternatives, or put forward any reasons as to why his employment should not be terminated. While I accept that Mr Chand could have put forward alternatives in the two months between his suspension and the termination, this does not mean that it was not necessary for Endeavour Energy to meet with Mr Chand and advise him that it had determined to move to terminate his employment subject to anything he might wish to put in mitigation.

s387(d) any unreasonable refusal by the employer to allow Chand to have a support person present to assist at any discussions relating to dismissal;

[51] Mr Chand had a support person with him.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Fowler had been warned about that unsatisfactory performance before the dismissal;

[52] Mr Chand’s dismissal did not relate to unsatisfactory performance.

s387(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;

[53] No submissions were made on this criterion.

s387(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;

[54] No submissions were made on this criterion.

s387(h) any other matters that FWA considers relevant.

[55] Mr Chand submitted that regard should be had to his length of service and his personal circumstances. Further Mr Chand submitted that regard should be had to his honesty in advising Endeavour Energy of the loss of his licence. Whilst I have had regard to the former matters, I have not had regard to the fact that Mr Chand advised his employer of his loss of licence. He did no more than would be expected of any employee in his position. Given his length of service and his willingness to take long service leave, had the suspension been for a short period of time it may have been reasonable for Endeavour Energy to have accommodated Mr Chand, however given his suspension was for 12 months, Endeavour Energy did not unreasonably refuse to accommodate Mr Chand.

[56] I have had regard to the fact that Endeavour Energy did not immediately terminate Mr Chand’s employment and stood him down on pay pending the outcome of the court case.

Conclusion

[57] Endeavour Energy had a valid reason for the termination of Mr Chand’s employment as he was not able to perform the inherent requirements of his employment. It was not unreasonable for Endeavour Energy, having reviewed alternatives, to determine that it could not accommodate Mr Chand’s inability to drive for 12 months.

[58] Endeavour Energy did not immediately dismiss Mr Chand but awaited the outcome of his court case. That was a reasonable course of action. Endeavour Energy was not being unreasonable when it decided not to await the outcome of any appeal.

[59] Whilst Endeavour Energy should have provided Mr Chand with an opportunity to put forward alternatives to the termination, this failure is not sufficient for me to determine that the termination of Mr Chand’s employment was harsh, unjust or unreasonable. Therefore Mr Chand’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Chand on his own behalf.

M. Greenhill for the Respondent.

Hearing details:

2014.

Melbourne:

7 October.

 1 Exhibit A1 at [9].

 2 Ibid at [10].

 3   Ibid at attachment B.

 4   Exhibit R1 at attachment E .

 5   Transcript PN 24.

 6   Ibid PN 25-27.

 7   Exhibit A3.

 8   Transcript PN 62.

 9   Ibid PN 37.

 10   Exhibit A11.

 11 Exhibit A1 at [2].

 12   Ibid at ‘Points to consider’.

 13   Ibid at ‘Reasons for the dismissal to be unfair. unjust and harsh’.

 14   Ibid.

 15   Ibid.

 16   Ibid.

 17   Ibid.

 18   Ibid.

 19   Ibid.

 20   Exhibit R2.

 21   Transcript PN 163-164.

 22   Ibid PN 180-181 and 188.

 23   Ibid PN 183-184.

 24   Ibid PN 185.

 25   Exhibit R2.

 26 Exhibit R1 at [1].

 27 Ibid at [2].

 28 Ibid at [3].

 29 Ibid at [5].

 30 Ibid at [6].

 31 Ibid at [8].

 32   Ibid.

 33   Ibid.

 34   Ibid.

 35   Transcript PN 65.

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