Shannon Dawson v Railway Transport Services Pty Ltd T/A Cartage Australia

[2011] FWA 4915

[2011] FWA 4915

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shannon Dawson
v
Railway Transport Services Pty Ltd T/A Cartage Australia
(U2011/6540)

COMMISSIONER BISSETT MELBOURNE, 4 AUGUST 2011

Application for unfair dismissal remedy

[1] This is an application by Mr Shannon Dawson (the Applicant) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Dawson was employed by Railway Transport Services Pty Ltd T/A Cartage Australia(RTS or the Respondent) as a truck driver on 26 August 2010. His employment was terminated on 21 March 2011.

[3] The Respondent is a cartage company with 69 employees, many of whom, but not all, are truck drivers. The trucks driven by employees of the Respondent are large heavy vehicles.

[4] The notice of termination of employment indicates that the Applicant’s employment was terminated with one week’s pay in lieu of notice because the Applicant ‘appered [sic] to be under the influence of achol [sic] and sent home on 19-3-11. When sent home you said to me “yeah well I had a big night last night”’. The notice was handed to the Applicant by Mr Batrouney on 21 March 2011.

[5] Evidence was given by Mr Dawson on his own behalf.

[6] Evidence for the Respondent was given by Neil Jones (Operations Manager), David Batrouney (Supervisor), Shannon Logan (heavy vehicle driver) and Barry Andrews (driver).

Evidence

[7] On 19 March 2011 Mr Dawson attended for work at 4.30am. Mr Batrouney, Mr Logan and Mr Andrews gave evidence that the Applicant smelt of alcohol, appeared unsteady, slurred his words and was boisterous.

[8] Mr Batrouney says he got as close as two to three feet from the Applicant 1 when he walked past him to go into the lunch (smoko) room. It was at this time he smelt alcohol on the Applicant.2 Mr Batrouney checked that the applicant had logged into the management system and then approached the Applicant ‘where he was standing with Shannon Logan, Barry Andrews and Darren Kemp.’3 He called the Applicant away from the group to talk to him. Mr Batrouney says he stood ‘a couple of feet, three feet maybe’4 from the Applicant as you would in a normal conversation. He formed the view that the Applicant was ‘over the limit’ and would need to go home. He was satisfied that Mr Dawson intended to work as he had logged on and completed his paperwork, which included certification that he had a blood alcohol content (BAC) of 0.00%. Mr Batrouney’s evidence is that when he told the Applicant he could not work and would have to go home the Applicant replied that he had had ‘a big night last night.’5

[9] Mr Batrouney, after having sent the Applicant home, spoke to Mr Jones during the course of the morning where they came to an understanding that Mr Dawson’s employment should be terminated ‘given the seriousness of his misconduct.’ 6

[10] Mr Jones is the Operations Manager and was not at the site where these events took place. He had the authority to decide to dismiss the Applicant. The decision to dismiss the Applicant was taken by him ‘along with Dave Batrouney’. 7 Mr Jones believed that, given the seriousness of the issue, the Applicant would have rung him ‘to see why he had been sent home’.8 Mr Jones did not consider it was his job ‘to chase people around.’9 Mr Jones considered that they could not let the Applicant continue to work as they could not take the chance that he was ‘over the limit’.10

[11] Mr Logan’s evidence is that he was standing at the door of the smoko hut with some co-workers talking when the Applicant said that he had been told to go home. Mr Logan says that the Applicant was a bit more than a metre away from him 11 and he could smell alcohol on the Applicant’s breath.12

[12] Mr Andrews’ evidence is that he knocked off at about 4.30am that day having worked the night shift. He was offered and took a beer from Mr Kemp, a co-worker who had also just finished the night shift. He says that he, Mr Logan and the Applicant were standing around a 60 litre drum that is used as an ashtray. 13 This drum apparently has some type of lid on it and a funnel down which cigarette butts are dropped. The butts are regularly covered with sand to minimise odour from the drum. Mr Andrew’s evidence is that he was standing close to the Applicant and he could smell alcohol on his breath.

[13] Mr Andrews gave evidence that if Mr Batrouney had not been on the site he would have called him, as he did not consider the Applicant in any fit state to drive a truck.

[14] Mr Andrews says that he does not normally drink a beer after work. He is aware that drinking on the company’s premises is contrary to the company’s drug and alcohol policy.

[15] The Applicant gave evidence that, as is his usual practice, he had been to his local hotel the night before where he consumed three or four pots of heavy beer and had a meal. He says he went home at about 8.00pm, did not consume any more alcohol, fed his dogs and went to bed. In the morning he got up, had some orange juice, brushed his teeth and went to work. He is a smoker.

[16] When he arrived at work the Applicant says he started his truck, did his paperwork and then proceeded to the smoko hut. His evidence is that his co-workers were sitting on a bench outside the smoko hut. The bench is quite long being capable of seating about 15 people. He says he sat at the far end of the bench from the door into the hut next to Mr Kemp. Next to Mr Kemp was Mr Andrews and near Mr Andrews standing in the doorway was Mr Logan. The Applicant’s evidence is that he was never any closer than 15 feet to Mr Logan 14 and a bit closer to Mr Andrews.

[17] The Applicant says that he was called over by Mr Batrouney away from the smoko hut. Mr Batrouney said to him that he suspected he was under the influence of alcohol and had to go home. The Applicant’s evidence is that he was never any closer than three to four metres to Mr Batrouney.

[18] The Applicant says that he knows his limit and he was not under the influence of alcohol that morning. He is also well aware that it is against the law to drive a truck with any blood alcohol content. He says that he may have appeared unsteady or slurring his words as he was tired. It was early in the morning and he had been working long hours and was suffering from fatigue.

[19] On the following Monday while driving to work the Applicant received a phone call from Mr Batrouney in which he was advised his employment was terminated. Mr Batrouney says the Applicant was called while he was on his way to work his next shift (the Monday morning) so that he would go to the office and not to the yard.

[20] The Applicant says his employment was terminated because he refused to change tyres on his truck, 15 a task he believed he could be fined for performing. Following a disagreement with management over this the Applicant says that ‘management made it hard’ for him16 including giving him less favourable runs.

[21] The evidence indicates that the company does have a range of policies including a drug and alcohol policy, employee induction manual, a changing tyres safe working practice document and a fatigue policy. The evidence is that the Applicant attended training on each of these policies on 23 December 2010. Mr Batrouney says that he delivered the training by providing each policy to the employees attending training, giving them time to read the documents and then answering any questions that may have arisen from the policies. The Applicant says that the training was cursory at best.

Was there a valid reason?

[22] It is against the law in Victoria for a truck driver to have a BAC above 0.00% 17 and an employer would be grossly negligent to allow a driver suspected of a BAC over 0.00% to take a truck out on the road. This must be so regardless of the company drug and alcohol policy. The Applicant admitted that he is aware of this road rule.

[23] However, in this matter it is not known if the Applicant did have a BAC above 0.00%. The Respondent at the time had no testing kit to enable that fact to be objectively determined. The Applicant was not told when he was sent home that his employment was in jeopardy because it was thought he had a BAC above 0.00% such that he might go and have a BAC test done at a doctors or police station.

[24] However, there was a strong suspicion that the Applicant did have a BAC above 0.00%. Alcohol was smelt on his breath by three employees of the Respondent. Mr Andrews was so concerned he was going to contact the supervisor, Mr Batrouney, if he was not on site as he did not believe the Applicant should be allowed to drive a truck in the condition he was in.

[25] The evidence of the Applicant conflicts with that of the witnesses for the Respondent with respect to where people were in relation to each other at the smoko hut. I prefer the evidence of Mr Logan and Mr Andrews as to where people were early that morning, that is that they were next to or near the barrel used as an ashtray. I reject the Applicant’s evidence that people were seated on the bench outside the smoko hut. I also prefer the evidence of Mr Logan, Mr Batrouney and Mr Andrews as to how close they were to the Applicant. Having found that people were not seated along the bench, I accept the evidence of Mr Batrouney, Mr Andrews and Mr Logan that they were close enough to smell alcohol on the Applicant’s breath.

[26] Both Mr Logan and Mr Batrouney made written statements around early May that they smelt alcohol on the Applicant’s breath. 18 These statements indicate that Mr Batrouney and Mr Andrews were close enough to the Applicant to smell his breath. Their evidence has remained consistent. Mr Andrews gave evidence that indicates he and a co-worker were in breach of company policy with respect to drug and alcohol use in the workplace. It is to his credit that he was honest about this and I see no basis on which to think he was truthful on a matter detrimental to himself and not truthful on a matter of no benefit to himself.

[27] Further, the evidence in this matter suggests no other unstated reason as to why the Respondent would terminate the Applicant’s employment. In terminating Mr Dawson’s employment the Respondent was left a driver short, which had cost implications for the Respondent.

[28] Whether the Applicant did or did not say he had had a big night is not relevant to determining if there was a valid reason for the termination of his employment. Alcohol was smelt on him and the employer took action to ensure he did not drive his truck.

[29] The company has a range of policies and procedures including an induction manual, a drug and alcohol policy, a changing tyres safe working practice document and a fatigue management manual. Employees are trained in the policies and, having completed the training, sign off on an attendance and ‘verification of understanding of training’ sheet. The training is delivered by the Operations Manager. I find that the Applicant was provided with training on these policies. I accept that this training may not have been detailed or intense but the policies were brought to the attention of the Applicant, he was given an opportunity to raise any issues about the content of the policies and he signed a sheet indicating that he had undertaken the training and understood the policies.

[30] To the extent that it is relevant to these proceedings I find that the Applicant could have refused to work additional hours if he was fatigued and that fatigue may explain some slurring or unsteadiness early in the morning but it does not explain the smell of alcohol on his breath.

[31] The Respondent does not have a zero tolerance drug and alcohol policy in that a breach of the policy does not automatically lead to dismissal. The drug and alcohol policy says that an employee may be counselled, given a formal warning or have their employment terminated if they are found to have breached the drug and alcohol policy.

[32] That the policy allows for counselling, formal warning or dismissal should not be taken to imply that dismissal is not an option unless discipline and formal counselling have already occurred. That would not make sense.

[33] The drug and alcohol policy also provides for an investigation process including discussing the matter with the employee, possibly requesting for the employee to undergo testing, suspension etc. It also allows for an assessment of the presence of alcohol to be made ‘by observation’ where there is no medical evidence. The policy ultimately allows the company to make whatever decision it feels is reasonable. That the drug and alcohol policy process may not have been adhered to is not relevant to whether or not there was a valid reason for the termination of the Applicant’s employment although it may be relevant to the overall question as to whether the termination was harsh, unjust or unreasonable.

[34] In Potter v Workcover Corporation 19 a Full Bench of the Australian Industrial Relations Commission observed:

[67] Of course breaching an employer’s policy will not of itself automatically give rise to a valid reason for termination of employment. It depends on the character of the policy and the nature of the breach. The policy in question must be lawful and reasonable.

[35] In Woolworths v Cameron Brown 20 a Full Bench of the Australian Industrial Relations Commission considered the legal principles associated with a breach of policy as grounds for termination of employment. After considering a number of cases dealing with the issue the Full Bench concluded:

[34]In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.”A failure to comply with a direction to do or refrain from doing something in compliance with a employer’s policy will not provide a valid reason for termination of employment where:

(a) the policy, or a direction to comply with the policy, is illegal;

(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(c) the policy, or a direction to comply with the policy, is unreasonable.

(footnotes omitted)

[36] In this case compliance with the policy by the Applicant would not be illegal, the policy clearly relates to the subject matter of the Applicant’s employment and the policy is reasonable.

[37] Regardless of the existence of a policy, it is appropriate and proper for an employer to take action to stop an employee breaching the law. Action in circumstances where the employer believes the employee may have a BAC over 0.00% and the employee is about to drive a truck is warranted. To do otherwise would be negligent.

[38] The term ‘valid reason’ was considered by Northrop J in Selvachandran v Petron Plastics Pty Ltd: 21

In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. 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 (1995) 60 IR 1, when considering the construction and application of a s170DC.

[39] On the basis of the evidence in these proceedings I find that the Applicant had alcohol on his breath. On this basis I find it was reasonable to assume that the Applicant had a BAC in excess of 0.00% on the morning of 19 March 2011. The evidence shows that the Applicant had logged on to the work system and was prepared to commence work. To allow the Applicant to drive a truck in circumstances where this would be a breach of the law is wrong and the Respondent was within its rights to send the Applicant home. To arrive at work with a BAC over 0.00%, in the context of the business and the work to be performed, is a valid reason for the termination of the Applicant’s employment.

[40] Further, I find that there is no evidence to suggest that the Applicant had his employment terminated because he refused to change truck tyres. There was no evidence and no basis on which I could find that such an activity is unlawful.

[41] The Respondent had a sound and defensible reason for terminating the Applicant’s employment. It is a breach of the law to drive a truck with a BAC over 0.00%. It is also a breach of the Respondent’s policy. There was a valid reason for the termination of the Applicant’s employment.

Was the person notified of the reason?

[42] The Applicant was notified of the reason for the termination of his employment on 21 March 2011, two days after the conduct complained of but not on the day the termination took effect. That notification stated that he had arrived at work under the influence of alcohol and, when sent home, replied that he had had a big night the night before.

[43] The notice of termination indicates that the Applicant was paid one week’s pay in lieu of notice.

Was the Applicant given an opportunity to respond?

[44] The practical effect of being given an opportunity to respond was considered in Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport 22 where a Full Bench of the Australian Industrial Relations Commission stated that:

[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their 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 170CG(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.

[45] If, because of some transgression by an employee, consideration is being given to the termination of that employee’s employment, the employee should be advised of this at the earliest opportunity to enable him or her to mount a defence to the transgression claimed.

[46] The process by which this termination of employment was effected denied an opportunity to the Applicant to respond to the reason for the termination of his employment. Whilst it was clear to him that he was sent home on 19 March 2011 because alcohol was smelt on his breath, he was not at this time advised of the potential consequences of this. This is despite Mr Batrouney having in his mind from very early on that the Applicant should be dismissed from his employment and the decision being made that day to terminate his employment.

[47] Had the Applicant been advised that consideration was being given to the termination of his employment he could have taken action to provide evidence (that is respond) that he did not have alcohol in his system by visiting a doctor to have a blood test or by being given a breath test. It is not the responsibility of the Applicant to second guess what is going on in the mind of his supervisor and to provide a defence against or response to that guess. The Applicant had a right to know when he was sent home that termination of his employment was a possibility. The obligation is squarely on the Respondent to give the Applicant an opportunity to respond by advising the Applicant of the potential consequences of his actions. This did not occur in this case.

[48] Mr Jones gave evidence that it was up to the Applicant to contact the Respondent to find out why he had been sent home or what was going to happen to him. Such a proposition is absurd. Even if the Applicant knew the drug and alcohol policy word for word he was not to know that his employment was to be terminated. The policy provides for any one of three outcomes. Termination of employment was considered on Saturday morning and the decision to terminate was made Saturday afternoon but the Applicant was not advised until two days later.

[49] Timing in these circumstances is everything, as it is pointless having a breath test two days later. As the Applicant was not advised of the likely ramifications of being sent home he was denied the opportunity to respond in any meaningful way to the reason for the termination of his employment.

A support person

[50] Given that there was no discussion with respect to dismissal there was no unreasonable refusal to allow the Applicant to have a support person present.

Access to human resources expertise

[51] The Respondent employed 69 employees at the time of the termination. It did not have a human resource specialist at the time.

Any other matters

[52] Breath testing equipment was developed in response to a need for an objective mechanism of determining if a person has alcohol in their system. A subjective ‘observation’ is not a rigorous system.

[53] The Respondent submitted that because, in its mind this was a summary dismissal, aspects of procedural fairness can be set aside. I do not agree. Procedural fairness requires that the employee be advised of the likely consequences of their conduct so that they may take action to defend themselves. This is not something to set aside without good reason. That there was no objective test of the Applicant’s BAC conducted at the worksite suggests that procedural fairness in the decision making process is necessary. Had the Respondent had a test kit that could be utilised and a true reading ascertained it may have had grounds for immediate termination of employment, but this was not the case.

[54] Whilst it does not bear on my findings I note that evidence given in these proceedings indicates that alcohol is consumed on site by at least one, possibly two employees when they finish their night shift with an indication that it is known that one of those employees gets in his car and drives while drinking. The Respondent needs to put a stop to such practices. The drug and alcohol policy indicates that alcohol is not to be consumed on site except for ‘special occasions’ where approval is required. I doubt that a beer on the way to the car after finishing night shift constitutes a ‘special occasion.’

[55] The Respondent should not pay lip service to its policy. If it is serious about drugs and alcohol at the workplace it needs to take positive action to control drinking in the workplace; and ensure that employees have access to breath testing facilities.

Was the termination of employment harsh, unjust or unreasonable?

[56] In Byrne v Australian Airlines Limited 23their Honours McHugh and Gummow JJ said:

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted...

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. The submissions for the respondent in the present appeals appear to concede this. But the burden of the respondent’s submissions is that there was error in determining the issue without regard to the very material circumstances of the finding of the primary judge as to the complicity of the appellants in pilfering.

[57] While the decision to send the Applicant home when alcohol was smelt on his breath was reasonable and while the presence of alcohol provides a valid reason for the termination of the Applicant’s employment, the lack of procedural fairness in advising the Applicant that his employment may be terminated and the absence of an opportunity to provide evidence that he did not have a BAC over 0.00% makes the decision of the Respondent unjust.

[58] Mr Dawson was not afforded procedural fairness in that he was not given any opportunity to show that he did not have any alcohol in his system and there was no mechanism at the work site where he could test himself.

[59] I therefore find that the termination of Mr Dawson’s employment was unfair.

Remedy

[60] The Applicant does not seek reinstatement; rather he seeks compensation in lieu of reinstatement.

[61] In determining the amount of compensation under s.392 of the Act the following matters must be taken into account in addition to all of the circumstances of the case:

(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.

[62] In determining the amount of compensation I firstly observe that there was very little put to assist me in determining the remedy I should award. I have taken into account the following matters in determining remedy. The Applicant’s evidence of his earnings was minimal. He stated that he has, since the time of his dismissal, earned between $5000-$5500 while working part time. No pay slips were tendered.

[63] I have considered the likely earnings of the Applicant had he not been dismissed. His average wage prior to dismissal, based on the material provided, was $1413 per week gross. 24 His earnings from the time of dismissal until the time of hearing in a part time job were $5000-$5500 although I do not know if this is gross or net. I have assumed that he will continue to receive this income. I have deducted an amount of 25% for contingencies.

[64] There was little evidence of attempts by the Applicant to mitigate his losses. He claims he has ‘been looking for work’ 25 but provided no further detail.

[65] The Applicant submits that he would have continued to work for the Respondent for at least another year but also gave evidence that he was working long hours, was fatigued and it was difficult to get time off. Further, he had had a run in with the owner of the company where the Applicant claimed he was being directed to undertake unlawful duties by being required to change the tyres on the truck and that he was given boring runs while other drivers got varied runs and their wishes, but not his, were accommodated.

[66] I consider that, had the Applicant not been dismissed, he would have continued to work for the Respondent for another six months. This assessment is based on his evidence of a level of dissatisfaction with work with respect to hours, his runs and his disagreement with the owner on changing tyres. In this respect an applicant cannot rely on one version of events as a defence against the actions of the employer in terminating the employment but then, on remedy, attempt to ignore or brush over these.

[67] I have considered the Applicant’s short period of employment and do not consider this a relevant consideration beyond that above.

[68] The Applicant’s conduct led him to the situation he found himself in. I have found that he did smell of alcohol, which did put the employer in the position of having to send him home and not allow him to work on 19 March 2011. I have reduced the amount of compensation for this reason.

[69] I have taken into account all of the circumstances of this case in determining compensation, in particular that the Applicant was given no opportunity to respond to the reason for the termination of his employment. By the time he was aware of the reason for the termination he could do nothing to defend himself.

[70] I do not consider the making of this order shall affect the viability of the Respondent’s enterprise.

[71] In determining remedy I have fully considered the approach to the determination of remedy set out by a Full Bench of Fair Work Australia in Tabro Meats Pty Ltd v Heffernan. 26

[72] In all of the circumstances I have decided to make an order for compensation of seven week’s pay based on the Applicant’s average earnings of $1413. The total amount of compensation awarded is therefore $9891 subject to normal taxation arrangements. Added to this shall be an amount of $469.21 (equivalent to seven weeks superannuation) to be paid as superannuation into the Applicant’s superannuation account. An order to this effect will be issued.

COMMISSIONER

Appearances:

G. Dircks for the Applicant.

M. Daly of counsel for the Respondent.

Hearing details:

2011.

Melbourne.

12 July

 1   PN528.

 2   PN537.

 3   Exhibit R10 paragraph 6.

 4   PN536.

 5   Exhibit R10 paragraph 9.

 6   Exhibit R10 paragraph 12.

 7   PN384.

 8   PN403. Also see PN 456, 459 and 470.

 9   PN404.

 10   PN445.

 11   PN955.

 12   PN959.

 13   PN794.

 14   See PN52. The distance identified by the witness was approximately 15 feet.

 15   Exhibit A1, paragraph 14.

 16  Exhibit A1, paragraph 23.

 17   Road Safety Act 1986 (Vic) s 52(1A).

 18   Exhibit R12 and Form F3.

 19 (2004) 133 IR 458, 475.

 20   PR963023 (26 September 2005).

 21 (1995) 62 IR 371, 373.

 22   AIRC, S5897, 11 May 2000.

 23 (1995) 185 CLR 410, 465, 468.

 24   See exhibit A1. Note that this calculation varies from the amount claimed in paragraph 2 of Exhibit A1.

 25   PN17, 23.

 26   [2011] FWAFB 1080.

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