DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr John Smith
v
Aussie Waste Management Pty Ltd
(U2014/13262)

DEPUTY PRESIDENT WELLS

HOBART, 12 FEBRUARY 2015

Application for relief from unfair dismissal – misconduct – serious misconduct

Introduction

[1] Mr John Maxwell Smith (Mr Smith) was employed as a truck driver by Aussie Waste Management Pty Ltd (AWM), a waste management company, from 5 July 2012 until he was dismissed on 3 October 2014 during a phone call. Mr Smith claimed that this dismissal was unfair.

[2] The matter was dealt with by a Fair Work Commission (FWC) Conciliator but did not settle. It was heard by me in Hobart on 3 February 2015.

[3] Mr Smith was represented by Mr L Doble from the Transport Workers Union (TWU) and AWM were unrepresented.

[4] AWM opposed Mr Smith’s application stating that he had engaged in serious misconduct warranting summary dismissal and that the dismissal was fair.

[5] Much of the evidence presented was immaterial to the matters to be considered. I do not refer to specific evidence where it was not relevant to the facts to be decided. In reaching my conclusions I have had regard to all relevant materials and evidence before me.

Factual Background

[6] Mr Smith was a truck driver working with AWM from 5 July 2012 to 3 October 2014. Accordingly, at the time of his employment ending, Mr Smith had fulfilled the minimum employment period prescribed in s.383 of the Act, namely six months.

[7] On 3 October 2014 Mr Smith experienced what he described as mechanical and fuel problems with a truck he was given to drive on that day. He arranged to swap trucks at Bridgewater with another employee of AWM and, after dropping the part load of rubbish on that truck to the AWM depot at Austins Ferry, continued on his waste collection round for that day.
[8] On that day Mr Henrick Coombes, the Managing Director of AWM, noticed through the GPS location of Mr Smith’s truck, that Mr Smith was slower than usual on his round. Mr Coombes sent Mr Smith a text message advising him that he was taking longer on his round than usual. At this time Mr Smith’s truck was located in Lachlan.

[9] A telephone call was then made by Mr Coombes to Mr Smith’s mobile (the “first phone call”). The exact content of this conversation is disputed. Mr Smith acknowledged that he swore at Mr Coombes and ended the call by hanging up, only after Mr Coombes swore at him first. Mr Coombes denied swearing during the conversation.

[10] Approximately two minutes later Mr Coombes rang Mr Smith back (the “second phone call”) and told Mr Smith that he would not be spoken to like that and that he could not ‘hang up’ on him. Mr Coombes then terminated Mr Smith’s employment saying words to the effect of ‘take the truck back to the yard and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v Aussie Waste Management Pty Ltd

Details

AGLC: Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044
Case: [2015] FWC 1044
Decision Date: 12 FEBRUARY 2015

CaseChat Overview and Summary

Smith brought an application for relief from unfair dismissal against Aussie Waste Management Pty Ltd. Smith was employed as a driver for the company, but was dismissed after an incident where he was found to be driving under the influence of alcohol. The dispute centred on whether Smith's dismissal was unfair and if the company had just cause to terminate his employment. The case was heard in the Fair Work Commission, which has jurisdiction to hear claims of unfair dismissal under the Fair Work Act 2009.

The primary legal issue before the Commission was whether Smith's conduct constituted serious misconduct, warranting termination without notice or pay. The company argued that driving under the influence of alcohol was a serious breach of its code of conduct, and that Smith's actions posed a significant risk to the safety of himself and others. Smith, on the other hand, claimed that his dismissal was harsh, unjust, and unreasonable, and that he should be reinstated to his position with back pay. The Commission was required to determine whether the company's decision to dismiss Smith was justified, and whether there were any mitigating factors that should be taken into account.

The Fair Work Commission found that Smith's conduct did indeed constitute serious misconduct, and that the company had just cause to terminate his employment. The Commission noted that Smith had a prior history of disciplinary issues related to alcohol use, and that his actions on the day in question posed a significant risk to the safety of others on the road. The Commission also found that Smith had failed to take reasonable steps to mitigate the risk of driving under the influence of alcohol, and that his dismissal was not harsh, unjust, or unreasonable. As such, the application for relief from unfair dismissal was dismissed. The Commission did not order any specific relief, as it found that the dismissal was justified.

Orders