No judgment structure available for this case.

[2016] FWC 3653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sam Chisholm
v
Coates Hire Operations Pty Limited T/A Coates Hire
(U2015/15205)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 6 JUNE 2016

Application for relief from unfair dismissal - harsh, unjust or unreasonable - dismissal found to be fair - application dismissed.

[1] Mr Sam Chisholm (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 19 November 2015 alleging that the termination of his employment by Coates Hire Operations Pty Ltd T/A Coates Hire (Coates – the Respondent) on 11 November 2015 was unfair.

[2] The application was heard on 9 March 2016. At the hearing, Mr Chisholm appeared and gave evidence on his own behalf, while Ms Frances Thomas of the Australian Industry Group appeared for Coates. Mr Matthew Ball, Regional Manager, Southern NSW and ACT; Mr Andrew Cheney, Territory Manager, Southern NSW and ACT; Ms Therese Sakr, Human Resources Business Partner; and Mr Warren Chavasse, Fitter Mechanic – Field Service, all gave evidence for Coates.

[3] For the reasons outlined below, I have found that Mr Chisholm’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Background

[4] Mr Chisholm commenced employment with Coates on 24 August 2011 and at the time of his dismissal was working as Assistant Branch Manager at Coates Queanbeyan (NSW) Branch.

[5] At about 9.00pm on 21 October 2015 the company vehicle allocated to Mr Chisholm was involved in a single vehicle accident.

[6] On 22 October 2015 Coates stood Mr Chisholm down on full pay pending receipt of a police report regarding the incident. Later that day, Mr Chisholm sent an email to Coates stating:

“Hello all, after discussions with my lawyer he wants a written reference to what I am stood down and a referral with evidence win [sic] what policy I’ve breached.

I’m clearly denying all accusations and will need to seek compensation if a proven answer cannot be given.

Further more [sic] my lawyer wants an indication of finalising the situation as police investigations with Coates as police investigations can go on and never end without a decision.” 1

[7] In early November 2015 Mr Ball telephoned Mr Chisholm and discussed Coates undertaking its own investigation into the incident rather than awaiting finalisation of the police investigation. Mr Chisholm was amenable to that approach and attended an interview on 3 November 2015 with his mother as his support person.

[8] On 6 November 2015 Mr Ball wrote a “Show Cause” letter to Mr Chisholm. The letter stated, inter alia, that:

“The company has now concluded its investigation into the events which have occurred on 21 October 2015 where a company vehicle was involved in an incident which resulted in a substantial amount of damage.

Having considered all the information available, including your formal statement which was provided on 3 November 2015 the company is of the view that you have seriously breached the conditions of your employment and the company expectations by not exercising due care with the vehicle. This is a serious matter and in the circumstances, the Company is considering taking further disciplinary action which includes termination of your employment. However, before a decision is made about your employment, the Company wishes to provide you with an opportunity to raise any other matters that you wish the Company to take into account.

If you wish to respond, please provide your written response to me in writing on Monday 9 November 2015. We will meet with you on Monday 9 November 2015 at 4:00pm to discuss your response. You may have a support person present at this meeting. If you do not wish to provide any further information to me, or do not reply by this time, a final decision will be made based upon the information available.” 2

[9] Mr Chisholm provided his response to the Show Cause letter to Mr Ball at the scheduled meeting of 9 November 2015. However, Mr Chisholm’s response was not discussed and the meeting was rescheduled for the following day so as to provide Mr Ball with an opportunity to consider Mr Chisholm’s response. Mr Chisholm was dismissed at the meeting on 10 November 2015. Also at that meeting, Mr Chisholm was provided with a termination letter. The termination letter stated that:

“This letter is in relation to your ongoing employment with Coates Hire and activities that resulted in your Company allocated vehicle sustaining significant damage.

On 6th November you were issued with a Show Cause Notice regarding these matters. You attended a meeting with Matthew Ball and Andrew Cheney on 9th November to discuss the matter. At that meeting you provided a detailed response. In your response you brought up a number of issues that warranted further consideration. The Company has reviewed these matters as raised.

I have considered your response most carefully and determined that you have breached the conditions of your employment and the company expectations by not exercising reasonable care and control with the company vehicle

The Company regards your behaviour in this matter to be unacceptable and the ultimate reason for the Company Vehicle being significantly damaged. The company has therefore decided to terminate your employment effective from 11 November 2015. You will be paid one (1) months’ notice and your unused leave entitlements upon return of all company property in your possession.” 3

The Applicant’s case

[10] Mr Chisholm stated in his application that on 21 October 2015 the keys to the company vehicle which had been assigned to him were either lost by him or stolen from him, adding that the vehicle was taken by someone unknown to him and was involved in a crash. Mr Chisholm further stated in his application that he considered his dismissal to be:

unjust because he did not cause any damage to the vehicle;

unreasonable because he believed that Coates, without evidence, had wrongfully assumed that his behaviour in losing the keys to the vehicle was the ultimate reason for it being significantly damaged; and

unfair and excessively harsh as it was totally disproportionate to the gravity of the offence. 4

[11] Mr Chisholm reiterated the above in his written submissions, adding that he failed to see how losing or having his car keys stolen constituted a breach of his conditions of employment and company expectations. Mr Chisholm further submitted that he considered the reason for his dismissal without any evidence of consideration of alternative disciplinary actions to be unjust, unfair, unreasonable and excessively harsh. In terms of remedy, Mr Chisholm sought reinstatement with continuity of service and payment of wages backdated to 11 November 2015.

[12] At the hearing Mr Chisholm submitted that it was his view that he had been dismissed as a result of assumptions with no actual evidence that proved anything to be true. Mr Chisholm also contended that he did not think his mother’s evidence that she had picked him up from the Queanbeyan Golf Club was in dispute to explain why he did not ask her to give evidence in the matter, alluding that she was in the hearing room and was willing to give evidence. Finally, Mr Chisholm stated that he deliberately chose not to ask his former girlfriend to give evidence as he had little contact with her since 21 October 2015 and he did not consider her appearance either appropriate or necessary given that she had left the Club before the incident.

[13] In his witness statement 5 Mr Chisholm deposed that on the evening of 21 October 2015 he was at the Queanbeyan Golf Club with his girlfriend when they had an argument and she left. Mr Chisholm further deposed that he then rang his mother in tears and told her of his distress, adding that she advised him to stay put as she did not want him driving as he had consumed two or three beers and was in an emotional state. Mr Chisholm also deposed that his mother collected him from the Club at around 8.00pm and drove him home. Mr Chisholm contended in his witness statement that he had previously won some meat trays and purchased some takeaway food and put these items in the vehicle, locked the vehicle and returned to the Club, adding that at some stage following his return to the Club his keys had either been lost or stolen. Beyond this, Mr Chisholm deposed, inter alia, that:

later that evening while he was at home he received a call from Mr Cheney advising him that his Coates’ vehicle had been involved in an accident;

Mr Cheney also asked him whether he would attend Queanbeyan police station to give a statement, adding that he agreed to do so;

his interview at the Queanbeyan police station was suspended when he confirmed to the interviewing officer that he had been drinking;

the officer then enquired as to whether he and his mother would be prepared to give a statement in future, but that a lawyer friend subsequently advised him that he should await a more formal police process before giving a statement to the police; and

he had not subsequently been contacted by the police.

[14] Key aspects of Mr Chisholm’s oral evidence were that:

he disputed that he called his mother from the Metro Service Station on Tharwa Road and told her that he had been involved in an accident and that this was why she was “shook up”;

he rang his mother from the Golf Club on his personal mobile phone at around 8.00pm;

he put the meat trays and takeaway food in the vehicle before 8.00pm, just before his mother came and picked him up;

after doing so, he returned to the club and spoke to his girlfriend who “left in a hiss” 6 and then had a couple of beers and rang his mother;

he had not asked his mother to give evidence as she had nothing further to add and he did not think it was appropriate to ask his girlfriend to give evidence as “a lot of this has caused a breakdown of the relationship” 7;
he did not recall taking the vehicle keys out of his pocket, adding that they might have come out of his pocket when he went to the toilet, when he was walking around or when he took his mobile phone out of his pocket, adding that someone could have taken them from him;
he had three beers over the period 5.30pm to 8.00pm;
he had not made a statement to the police;
he sent a text message to Mr Ball and Mr Cheney on 22 October 2015 stating that he wanted an outcome before the police investigation had concluded, adding that this was just him trying to find out when he could go back to work rather than him pressing Coates for a response before the police investigation had been completed;
he had a support present person present at all meetings with Coates regarding the incident, provided a written response to Coates which covered all the issues he wanted to address in respect of the incident of 21 October 2015, that he understood that Coates held him responsible for the damage to the vehicle and that Coates thought he had been driving the vehicle at the time of the accident;
he had previously been the subject of an informal disciplinary procedure at Coates; and
after receiving Mr Chavasse’s statement he had sent him a text message asking him to stop talking about the situation and stop bad-mouthing him to people 8.

The Respondent’s case

[15] Coates submitted that it had a fair reason for dismissing Mr Chisholm due to his reckless lack of care for its property, breaching its policies and consequently creating a risk to his safety and that of third parties. Coates further submitted that Mr Chisholm was at all material times aware of the allegations against him and was given numerous opportunities to provide his own account of events, adding that its conclusion and resultant decision to dismiss him were reasonably open to it and were executed in a fair and reasonable manner. Coates contended that, as such, Mr Chisholm was not entitled to a remedy under s.394 of the Act.

[16] In its submissions Coates also contended that the following circumstances, among others, did not support Mr Chisholm’s case being accepted:

Mr Chisholm had advanced no logical reason why he would place takeaway food and trays of raw meat in the vehicle, then return to the Golf Club prior to making the decision to not drive;

there was no evidence of any items being stolen from the vehicle (consistent with theft);

when Mr Chisholm telephoned Mr Cheney at the accident scene he unnecessarily put his mother on the phone and avoided further discussion;

Mr Chisholm’s mother, without being asked or prompted, volunteered “he’s been with me all night”;

this contradicted Mr Chisholm’s evidence that he had only been with his mother after she picked him up from about 8.00 to 8:30pm that evening; and

the accident scene was on the most direct route between the Golf Club and Mr Chisholm’s home address.

[17] Coates submitted that, were the Commission to find that Mr Chisholm’s dismissal was harsh, unjust or unreasonable, reinstatement was not appropriate in this case having regard to its conclusion about the veracity of the information provided to it by Mr Chisholm. Coates also pointed to the irreparable breakdown in its trust and confidence in Mr Chisholm, particularly given his relatively senior position. The Respondent further submitted that any award of compensation should be small in this case.

[18] At the hearing, Coates highlighted, among other things, the inconsistencies between Mr Chisholm’s statement as part of its investigation and his evidence to the Commission. In addition, Coates emphasised the fairness of the process leading up to Mr Chisholm’s dismissal.

[19] Mr Cheney in his witness statement 9 set out in some detail the events of the evening of 21 October 2015. Key aspects of his witness statement in that regard were that:

he attended the accident scene after having received a call from Mr Chavasse at about 9.40pm;

he tried to call Mr Chisholm on his work mobile telephone and left a message at about 10.00pm;

a police officer at the accident scene, Senior Constable Drake, mentioned that there was a report of someone matching Mr Chisholm’s description having been seen at the nearby Metro Service Station;

Mr Chisholm returned his call at about 10.30pm; and

when he picked up Mr Chisholm and his mother to take them to the Queanbeyan police station to be interviewed he observed that Mr Chisholm had been drinking fairly heavily.

[20] Beyond that, Mr Cheney deposed, inter alia, that he had subsequently sought to obtain closed circuit television (CCTV) footage from the Metro Service Station but was unable to do so as it had already been provided to the police, continued to liaise with the police regarding its investigation into the incident and that he had previously counselled Mr Chisholm regarding several unrelated incidents.

[21] In his oral evidence Mr Cheney reiterated a number of aspects of his witness statement. In addition, he attested that:

at the accident scene he saw no signs of the car having been broken into;

there was quite a lot of blood and bits and pieces on the vehicle’s airbags;

he did not request CCTV footage from the Queanbeyan Golf Club;

from a drug and alcohol perspective, Coates’ policy required a zero blood and alcohol reading;

when he picked Mr Chisholm up he did not notice any visible signs of bruises or cuts; and

he was not involved in the decision to terminate Mr Chisholm’s employment.

[22] In his witness statement 10 Mr Ball set out the chronology of events leading up to Mr Chisholm’s dismissal. As to the reasons he decided to dismiss Mr Chisholm, Mr Ball deposed that, after weighing up all the information he had, he was concerned that Mr Chisholm’s account of events was not substantiated and that he had real concerns about whether he could trust Mr Chisholm, particularly given his position of Assistant Branch Manager which demanded a high level of trust. More specifically, Mr Ball deposed that the following factors, among others, weighed particularly heavily in him concluding that he did not believe Mr Chisholm’s account of events:

Mr Cheney’s and Mr Chavasse’s reports/statements that the police had a report of someone matching Mr Chisholm’s description having been seen at the Metro Service Station not far from the accident scene calling his mother to fetch him;

he found it unconvincing that Mr Chisholm would have put meat trays and the takeaway food in the vehicle if he did not intend to drive home;

Mr Chisholm’s interview and his written response did not provide any information which suggested that it was not him driving the vehicle;

from Mr Cheney’s reports of the police investigation it appeared that Mr Chisholm was the primary suspect; and

the keys were not in the vehicle, which he found strange because if the vehicle had been stolen it would seem logical that the thief would leave the keys in the ignition.

[23] At the hearing, Mr Ball reiterated key elements of his witness statement and attested that Mr Chisholm’s mother supported her son’s version of events at the meeting of 3 November 2015, adding that Mr Chisholm did not bring his girlfriend to that meeting. Mr Ball further attested that:

the vehicle involved in the accident was a write-off;

the Show Cause letter was directed at the damage to the vehicle as opposed to Mr Chisholm not taking care of the vehicle keys;

in deciding to dismiss Mr Chisholm he did not take into account his performance, adding that Mr Chisholm’s dismissal was as a result of how he had acted with company property not how well he worked in his job;

the decision to dismiss Mr Chisholm was based on the evidence available to Coates, acknowledging that while some of that evidence was circumstantial it pointed to Mr Chisholm;

that evidence included the vehicle, no keys, and the meat trays and takeaway food being in the vehicle; and

his belief that Mr Chisholm was not being completely honest with him was based on what Mr Chavasse and Mr Cheney had told him, as well is what the police had told Mr Cheney.

[24] Mr Chavasse in his witness statement 11 set out his version of the events of the evening of 21 October 2015, deposing that he came across the accident scene when returning home from a call out. Among other things, Mr Chavasse deposed that:

he happened upon the accident scene around 9.20-9.30pm;

when approached by one of the police officers attending the scene he responded that the vehicle was Mr Chisholm’s and described Mr Chisholm to the officer, with the officer indicating that the description matched that of some witnesses to the accident who saw the driver run off through the bushes;

he contacted Mr Cheney to advise of the accident;

the police also said to him that they had a report of someone crying at a nearby service station while on the telephone to his mother asking her to come and pick him up as he had just been involved in an accident;

he unsuccessfully tried to call Mr Chisholm;

he observed Mr Cheney when he arrived try and contact Mr Chisholm;

when Mr Chisholm returned Mr Cheney’s call, the latter put the call on loudspeaker so that the police officer and he could hear the conversation; and

during that conversation Mr Chisholm handed over to his mother who said “He’s been with me all night”.

[25] Mr Chavasse’s oral evidence included that he tried to call Mr Chisholm on both his personal and work mobile phone multiple times from the accident scene without success and that he did not witness the accident, nor speak to any witnesses at the scene of the accident. As to the difference between his recollection of the phone conversation between Mr Chisholm and Mr Cheney on the night of the accident, Mr Chavasse stated that his witness statement reflected what he heard. Finally, Mr Chavasse attested that he received a number of threatening text messages 12 from an unknown person on the Wednesday after he had provided his witness statement in this matter, adding that he had reported the matter to the police, adding that he believed that the text messages had been sent by Mr Chisholm13.

[26] Ms Sakr in her witness statement 14 set out her involvement in this matter. Among other things, Ms Sakr deposed that she discussed the content of Mr Chisholm’s response of 7 November 2015 with Mr Ball and Mr Cheney on 9 November 2015, adding that in that discussion she expressed the view that Mr Chisholm had breached Coates’ vehicle policy, failed to take care of company property and was less than accurate about events than he should have been. Ms Sakr further deposed that she had formed the view that Mr Chisholm’s version of events was not supported and did not add up, with that view based on several factors including:

that Mr Chisholm left the meat trays in the vehicle rather than taking them with him when his mother picked him up from the Golf Club;

that Mr Chisholm’s mother stated in the interview on 3 November 2015 that she was “shook up”, adding that this did not make sense on the basis of Mr Chisholm having had a fight with his girlfriend and that she considered it was more likely that she was shaken up because Mr Chisholm had been involved in a motor vehicle accident;

Mr Cheney’s and Mr Chavasse’s reports/statements that the police had a report of someone matching Mr Chisholm’s description being seen at the Metro Service Station not far from the accident scene, with that person calling his mother to fetch him;

Mr Cheney’s reports of the police investigation which indicated that Mr Chisholm remained the primary suspect;

that it appeared to be a profound coincidence that the company vehicle was found on route between the Queanbeyan Golf Club and Mr Chisholm’s residential address;

that no keys were found in the vehicle when it was abandoned; and

that she found it surprising that Mr Chisholm would not have noticed that he had lost the keys given his statement that he only discovered his keys were missing when he was called by Mr Cheney.

[27] At the hearing Ms Sakr attested that Mr Chisholm had been dismissed as a result of serious misconduct but later stated that Coates did not treat the dismissal as serious misconduct as it had paid Mr Chisholm a period of notice. Ms Sakr also attested that while a first and final warning had been considered in this case it was ruled out almost immediately given Coates policies and its view that Mr Chisholm was lying about the incident. Ms Sakr further stated that Coates did not trust Mr Chisholm to come back into the business. Beyond that, Ms Sakr reiterated a number of aspects of her witness statement.

The statutory framework

[28] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Chisholm is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:

(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 FWC considers relevant.”

[29] There is no dispute that Mr Chisholm was dismissed, so s.385(a) of the Act is satisfied. Mr Chisholm contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. Coates is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Mr Chisholm was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[30] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria.

(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)

[31] In Rode v Burwood Mitsubishi 15 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd16. The following is an extract from the Full Bench’s decision in Rode.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added)

[32] Mr Chisholm disputedthere was any evidence to support Coates’ contentions that he consumed alcohol at the Golf Club, drove the company vehicle home in an unsafe manner, crashed the vehicle, abandoned the accident scene and conspired with his mother to advance an alternate version of events. Mr Chisholm described drink driving, negligent driving causing damage and abandoning the scene of an accident as valid reasons for dismissal. Mr Chisholm further submitted that failing to provide a full and accurate account of events to Coates and out of hours conduct may well be valid reasons for his dismissal if there was any factual data to prove that he was in fact driving the company vehicle at the time of the crash.

[33] Coates contended that Mr Chisholm:

drove a company vehicle at night when it was not necessary to do so and when he knew that he would be consuming alcohol in breach of its Car/Motor Vehicle – Supporting Policy;

drove the company vehicle when he was not competent to do so and after he had consumed alcohol in contravention of its Drug and Alcohol Policy and Procedure;

drove in a way which put third parties and himself at risk in breach of its Responsible Driving Procedure; and

was involved in an accident and did not report it either to the police or to Coates in breach of Coates’ Car/Motor Vehicle – Supporting Policy.

[34] Coates further contended that it came to the very well formed conclusion that Mr Chisholm simply lied to it, adding that any employee lying to his or her employer during an investigation was a serious matter. In its submissions, Coates relied on the Full Bench decision in Smith and Others v Moore Paragon Australia Ltd 17 (Smith) which considered the circumstances in which regard may be had to circumstantial evidence.

[35] Coates’ Car/Motor Vehicle – Supporting Policy provides as follows:

“7.3 Safety

Employees are responsible for the safety of themselves, passengers and community when driving a company vehicle … Driving at night should be avoided where possible.

…

7.14 Accidents

In the case of an accident, drivers are required to comply with the particular State or Territory laws concerning notification to the Police. Regardless of the extent or estimated damage caused by the accident, the incident is to be reported immediately to the employee’s Manager and logged in the B-Safe system.” (Underlining added)

[36] Coates’ Responsible Driving Procedure provides that:

“4.2 Driver Fatigue, Drugs and Alcohol

… Drug and alcohol management is detailed in the Drug and Alcohol Procedure. With regard to mitigating risks associated with these concerns, Coates Hire personnel shall;

…

Not be impaired by alcohol or drugs whether a prescription or illicit.” (Underlining added)

[37] Finally, Coates’ Drug and Alcohol Policy and Procedure provides as follows:

“10 Managing Positive Results for Alcohol

10.1 If the Individual Returns a Positive Screen for Alcohol

In the event of a result above the permissible blood alcohol concentrate [sic] defined in Appendix 1 being recorded…

In the case of a positive BAC result the following process will be undertaken:

* The individual shall be advised that they have returned a positive reading for Alcohol.

* …

* The individual is to present to work the following day upon which Formal Disciplinary counselling procedures will be implemented.

* Where there are no mitigating circumstances the individual will be dismissed without notice i.e. summary or instant dismissal.

* Where an individual records a positive test conducted by state police whilst in possession of a Company Vehicle the individual be dismissed without notice i.e. summary or instant dismissal

…

Appendix 1

Permissible BAC Level

A blood alcohol concentration of more than 0.00%, or where the limit set by a State or Territory law for the relevant work activity, is higher, that higher limits set by legislation, whilst at a Coates hire operation shall apply.” (Underlining added)

[38] By way of background, Mr Chisholm’s Employment Agreement of 21 November 2013 states that:

“7 Company Policies and Procedures

The Company has, or will have, various policies which apply to your employment. You must familiarise yourself with these policies and follow them. A material failure to do so may jeopardise your employment.” (Underlining added)

[39] Based on the above, were Mr Chisholm to have been driving the vehicle on 21 October 2015 there is no doubt that it would be in breach of the above abovementioned policies and consistent with those policies constitute a valid reason for his dismissal. Accordingly, the issue then becomes whether it was reasonably open to Coates to conclude that Mr Chisholm was driving the vehicle at the time of the accident.

[40] More broadly, an analysis of the material before the Commission indicates, among other things, that:

Mr Chisholm disputed that he was driving the vehicle at the time of the accident;

the police said to Mr Cheney and Mr Chevasse that they had a report of someone matching Mr Chisholm’s description being seen at the Metro Service Station not far from the accident scene with that person calling his mother to fetch him;

a police officer at the accident scene had said to Mr Chevasse that his description of Mr Chisholm that the description matched that of some witnesses to the accident who saw the driver run off through the bushes;

the police indicated to both Mr Cheney and Ms Sakr that Mr Chisholm was the primary suspect;

Mr Chisholm had not provided a statement to the police;

when Mr Cheney picked Mr Chisholm up from home on the evening of 21 October 2015 he did not notice any visible signs of bruises or cuts;

the accident occurred on the most direct route between the Queanbeyan Golf Club and Mr Chisholm’s home address.

[41] Further, I note that Mr Chisholm provided no evidence to corroborate his version of events, e.g. witness evidence from his mother or his former girlfriend or material such as his personal mobile phone records to verify that he called his mother from the Queanbeyan Golf Club as he attested.

[42] Beyond this, it is noteworthy that there are inconsistencies between Mr Chisholm’s statement at the interview of 3 November 2015 and his evidence to the Commission. For instance, at the interview of 3 November 2015 Mr Chisholm stated that his girlfriend “… came in, had a couple of drinks and she got the shits and left in a hissy fit … I won some meat trays there. Got some food and put it in the car. I locked the car and went back in. I was pretty upset, rang my mum …” 18 Whereas at the hearing, Mr Chisholm attested that he put the meat trays and takeaway food in the vehicle and after doing so, he returned to the club and spoke to his girlfriend who “left in a hiss” and then had a couple of beers and rang his mother.

[43] Aspects of Mr Chisholm’s version of events raise some obvious questions regarding his actions/conduct on the evening such as:

why didn’t he take the meat trays and takeaway food out of the vehicle when his mother picked him up?

why did he go back into the Club to call his mother on his personal mobile phone?

why did he ring his mother at all, particularly if he only had three beers (as he attested) over a period of two and a half hours?

[44] Finally, the Full Bench in Smith considered the question of whether a particular inference can be drawn from the facts found or agreed, considering a number of authorities and setting out the following principles drawn from those authorities:

“[42] The statement of principles set out above may be summarised as follows:

an inference is assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts;

the drawing of an inference is part of the process of fact finding;

an inference can be drawn if it is reasonably open on the basis of agreed or proved facts;

the question whether a particular inference can be drawn from the facts found or agreed is a question of law;

where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference;

the circumstances must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture;

matters to be taken into account in drawing an inference include circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed;

generally it is not lawful to take into accountmoral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations;

the degree of probability required to found the necessary inference will depend on the nature of the proceeding:

- in a criminal case the facts must be such as to exclude reasonable hypotheses consistent with innocence,
- in a civil case you need only circumstances raising a more probable inference in favour of what is alleged;

a party’s failure to give evidence on some issue in cases where it is within that party’s power to provide or give evidence, may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.” (Underlining added)

[45] While I acknowledge that based on the material before the Commission it is not possible to be absolutely certain that Mr Chisholm was driving the vehicle on 21 October 2015 when it crashed, drawing on the decision in Smith, I believe that the material points to Mr Chisholm having been the driver at the time of the accident. This in turn supports a finding that Mr Chisholm was therefore in breached of the abovementioned Coates policies, which as noted above would constitute a valid reason for his dismissal. Further, drawing on the language in Rode, I am satisfied that the reason for Mr Chisholm’s dismissal was defensible or justifiable on an objective analysis of the relevant facts and that it was not “capricious, fanciful, spiteful or prejudiced.”

[46] I would finally note that on 22 April 2016, i.e. just over six weeks after a decision in this matter was reserved, Mr Chisholm emailed the Commission advising that he had not been charged by the police despite the six month time limit for laying charges having expired. However, as the Commission is unable to verify the veracity of that advice and given that it was not copied to Coates, I have not attached any weight to the email.

(b) Whether the person was notified of that reason

[47] As noted above, Mr Chisholm attested that he understood that Coates held him responsible for the damage to the vehicle and that Coates thought he had been driving the vehicle at the time of the accident.

[48] Coates submitted that it notified Mr Chisholm of the reasons for his dismissal in writing on 22 October 2015 and 6 and 10 November 2015 and also discussed the reasons leading to his termination of employment in meetings on 6 and 10 November 2015.

[49] Against that background, I am satisfied that Mr Chisholm was notified of the reason for his dismissal.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[50] Mr Chisholm attested that he had provided a written response to Coates which covered all the issues he wanted to address in respect of the incident of 21 October 2015.

[51] Coates submitted that Mr Chisholm was given the opportunity to respond to the reasons and did so in writing in a letter dated 7 November 2015 which was given to Mr Ball on 9 November 2015 and considered by it prior to his dismissal on 10 November 2015.

[52] In circumstances where it is not disputed that Mr Chisholm was given the opportunity to respond to the reason for his dismissal, I consider this factor weighs against a finding that his dismissal was harsh, unjust or unreasonable.

(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

[53] It is not disputed that Mr Chisholm had a support person present at all meetings with Coates regarding the incident.

[54] Accordingly, I consider this factor to be a neutral consideration.

(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[55] It was not disputed that Mr Chisholm had not been dismissed as a result of his performance. Accordingly, this factor is not a relevant consideration.

(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

(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

[56] Mr Chisholm did not specifically address these factors in his submissions.

[57] Coates submitted that one Human Resources Business Partner is assigned to provide human resources assistance to its managers in southern NSW and the ACT region. Coates further submitted that it did not have the benefit of information available to the police in relation to the incident of 21 October 2015 and that it would not have been prudent, or indeed fair to Mr Chisholm, for it to wait for the conclusion of a police investigation before making its own enquiries and instituting its internal disciplinary procedure. As such, Coates submitted that it was tasked with relying on its own enquiries and drawing conclusions from those to determine whether Mr Chisholm’s version of events could be supported.

[58] Based on the material before the Commission, I do not consider that either of these factors impacted on the procedures involved in Mr Chisholm’s dismissal. Accordingly, I consider them to be neutral considerations.

(h) Any other matters that FWC considers relevant

[59] Mr Chisholm submitted that his dismissal was totally disproportionate to the gravity of either losing or having stolen from him the vehicle keys. However, as previously noted, Mr Ball attested that the Show Cause letter was directed at the damage to the vehicle as opposed to Mr Chisholm not taking care of the vehicle keys. This does not support Mr Chisholm’s submission on this aspect.

[60] Mr Chisholm further submitted that he had been treated differently to Mr Chavasse who was recently involved in a road accident which saw him charged with negligent driving yet he remained employed by Coates. On this issue Ms Sakr attested that Mr Chavasse had been tested at the accident scene and nothing came back positive, there was nothing to indicate that Mr Chavasse was speeding or under the influence of alcohol or anything like that, that Coates had investigated the matter in terms of Mr Chavasse’s phone records and he was not using his mobile phone at the time and that Mr Chavasse had been for some time complaining about the brakes on the vehicle. Ms Sakr further attested that Coates’ investigation concluded that Mr Chavasse had done nothing negligent and that the vehicle could have been a contributing factor to the accident, adding that Coates nevertheless took Mr Chavasse off the road for a while and had him undertake a driver course. Based on Ms Sakr’s evidence, I am satisfied that the two incidents are materially different and that as a result Mr Chisholm has not been treated differently to Mr Chavasse.

[61] Coates in its submissions that regard should be had to the fact that Mr Chisholm had not advanced evidence from either his former girlfriend or his mother to support his case, adding that the Commission should draw an inference from this under the rule in Jones v Dunkel 19. The Commission when considering whether or not there was a valid reason for Mr Chisholm’s dismissal, noted that he had provided no evidence to corroborate his version of events, e.g. witness evidence from his mother or his former girlfriend. The absence of such evidence was one of several considerations in the Commission concluding that there was a valid reason for Mr Chisholm’s dismissal. Accordingly, I consider regard has already been had to this factor.

[62] Against that background, I find that there are no other relevant matters.

Conclusion

[63] Drawing on the above analysis, I find that there was a valid reason for Mr Chisholm’s dismissal, that Mr Chisholm was notified of that reason and given an opportunity to respond to that reason, and that there are no other relevant matters. Beyond that, I find that Mr Chisholm’s performance is not a relevant consideration and that the remaining criteria in s.387 of the Act are neutral considerations in this case.

[64] Having considered all of the criteria in s.387 of the Act I find that Mr Chisholm’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

S. Chisholm on his own behalf.

F. Thomas for Coates Hire Operations Pty Ltd T/A Coats Hire.

Hearing details:

2016.

Canberra:

March 9.

1 Exhibit T2 at Attachment MB-2

2 Ibid at Attachment MB-7

3 Ibid at Attachment MB-9

4 Form F2 – Unfair Dismissal Application at Item 3.2

5 Exhibit C1

6 Transcript at PN113

7 Ibid at PN127

8 Ibid at PN369

9 Exhibit T1

10 Exhibit T2

11 Exhibit T3

12 Exhibit T4

13 Transcript at PN842

14 Exhibit T5

15 Print R4471

16 (1995) 62 IR 371

17 PR915674

18 Exhibit T2 at Attachment MB-4

19 (1959) 101 CLR 298

Printed by authority of the Commonwealth Government Printer

Actions

Download as PDF Download as Word Document

Citations

Sam Chisholm v Coates Hire Operations Pty Limited T/A Coates Hire [2016] FWC 3653

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

0

Jones v Dunkel [1959] HCA 8

Luxton v Vines [1952] HCA 19