Susanna Jean Meijer v Coca Cola Euro Pacific Partners
[2022] FWC 1286
•26 MAY 2022
| [2022] FWC 1286 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Susanna Jean Meijer
v
Coca Cola Euro Pacific Partners
(U2022/961)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 26 MAY 2022 |
Application for an unfair dismissal remedy – dismissal not harsh, unjust or unreasonable – application dismissed.
On 20 January 2022, Ms Meijer (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging she had been unfairly dismissed from her employment with Coca Cola Euro Pacific Partners (the Respondent) on 13 January 2022. The Applicant seeks an order for compensation.
Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 23 May 2022. After hearing from the parties, I determined to conduct a hearing pursuant to s.399 of the Act.
At the hearing, the Applicant was self-represented and gave evidence herself. The Respondent was granted permission to be legally represented pursuant to s.596(2) of the Act and was represented by Mr Luis Izzo of Australian Business Lawyers & Advisors who called the following witnesses to give evidence:
· Mr Rick Jones – District Sales Manager
· Ms Cassandra Scott – Health and Safety Wellbeing Partners SA/NT
· Mr Julian Gambaro – District Sales Manager
Background and evidence
Applicant’s employment
The Applicant commenced employment with the Respondent on 23 September 2019[1] in the position of Business Development Executive. She was engaged on a full time basis, was covered by the Commercial Sales Award 2020[2] and at the time of her dismissal was in receipt of a salary of approximately $75,283 per annum inclusive of superannuation. In her role she was entitled to the use of a fully maintained company motor vehicle for both business purposes and private use.
At the time of her dismissal the Applicant reported to Mr Julian Gambaro who was a District Sales Manager, to which role he was appointed on 11 October 2021. In that role he was responsible for ten sales employees including the Applicant[3]. Prior to Mr Gambaro’s appointment to that position, the Applicant reported to Mr Rick Jones who is also a District Sales Manager and to whom the Applicant reported to from September 2020 until October 2021.
The Applicant, along with other direct reports to Mr Gambaro (and Mr Jones before him), was required to visit between 15-20 customers of the Respondent a day which are generally located in the western suburbs of Melbourne and regional Victoria. As Mr Gambaro’s direct reports are required to visit customers in person, they must spend a significant portion of their time driving their company supplied motor vehicles to and from customer businesses.
Company policies and procedures
On 16 November 2020, the Respondent’s National Safety Manager, Sarah Moore, sent an email[4] to staff providing an update on the Respondent’s transition to measuring drivers’ speed against the designated speed limit. She stated in her email that while the Respondent was not currently reporting these numbers via Driver Safety reports due to the “settling in” period, this would change on 27 December 2021. Ms Moore encouraged staff to turn on their “end of trip” notifications on the employee app provided and also attached to her email a “how to” guide[5] on the driver app which included information on how to challenge a speed event notification.
On 12 February 2021, the Respondent’s CEO released a communication to all staff titled “Drawing a line in the sand – There is no such thing as safe speeding”[6]. The communication identified that the Respondent was drawing a line in the sand regarding unsafe driving behaviour by its staff and attached a copy of the Respondent’s “Managing Driver Behaviour Guidelines” document[7]. Mr Jones states the Applicant would have received this communication from the CEO.
On 15 February 2021, Mr Jones states that he held an on-line meeting with his team, which he says the Applicant would have attended. During his presentation[8] at that meeting Mr Jones played a video presentation[9] from the Respondent’s CEO in which the CEO talked about the Respondent drawing a line in the sand in respect of speeding.
In February 2021, the Respondent released a document titled ‘Managing Driver Behaviour Guidelines’ (the Guidelines), which set out the procedures that were to be followed when a driver was involved in a speeding event[10]. The guidelines identified the progressively more serious counselling and disciplinary approach that would be taken according to where an employee’s driving behaviour fell within the following specified speeding event ranges;
· Moderate Range Events – a speeding event of greater than 5km/h and up to 10km/h over the speed limit would result in;
1.Conversation with employee;
2.Ongoing Behaviour > 5 in a month or 3 consecutive months initiate investigation process for events within this speed range; and
3.INVESTIGATION - may lead to disciplinary process with outcomes up to (and including) termination based on aggravating/mitigating factors.
· Mid Range Events – a speeding event of 11km/h and up to 20km/h over the speed limit would result in;
1.INVESTIGATION - may lead to disciplinary process with outcomes up to (and including) termination based on aggravating/mitigating factors.
· High Range Event – a speeding event of 21km/h or more over the over the speed limit would result in;
1.Initiate INVESTIGATION process for any event within this speed; and
2.Preliminary position is that termination the likely outcome, subject to mitigating and aggravating factors.
In March 2021, the Respondent also released a document titled ‘Safe Driving Guidelines’ which imposed safety related requirements on employees driving vehicles for work purposes[11].
On 2 March 2021, the Applicant completed a training module on safe driver behaviours following a warning being issued to her regarding her speeding. Mr Jones states the training was delivered in a ‘Flash’ software system; the contents of which presentation[12] were provided by Mr Jones in his evidence. The training module included information on the Respondent’s speed monitoring software, which is discussed further below, and how employees could monitor their data via the provided mobile phone app.
On 2 March 2021, Sarah Moore sent a further email[13] to the Respondent’s drivers using ‘tool of trade vehicles’, which included the Applicant. Ms Moore referred to the Respondent having drawn a line in the sand with respect to speeding. Recipients of the email received a new e-training module which they were required to complete. The Applicant on the same day emailed Mr Jones confirming that she had completed the training and would work hard in the future to comply with the Respondent’s driving requirements[14].
On 17 May 2021, Mr Jones held a further meeting with his team, which the Applicant would have attended. While the meeting included sales results and business performance data, Mr Jones states he dedicated part of the meeting to talking about the Guidelines as can be seen in the presentation used by him at the meeting[15].
Mr Gambaro states the above described policies and guidelines operate in conjunction with the Respondent’s ‘Tool of Trade Vehicle Policy’[16] which was updated in August 2021 and before that in July 2017. Mr Gambaro also identified the Respondent’s ‘Code of Conduct’[17] as applying to the Applicant and which, amongst other things, requires employees to comply with all relevant road rules.
During cross-examination, the Applicant acknowledged she had received the 12 February 2021 “Line in the sand” email from the CEO, was aware of the Guidelines, agreed that the Guidelines were the subject of discussion and presentation in team meetings held by Mr Jones and that she had undertaken an on-line training module referred to above at [12]. The Applicant, while unable to describe the content of the training, rejected that the training she had undertaken was that set out in Mr Jones’ evidence at Exhibit R1 Annexure RJ-6. She also stated that she could not recall seeing the document headed Driver Safety App and Signposted Speeds – FAQs[18].
Monitoring driver behaviour
According to Mr Jones, the Respondent started to apply a sharper focus on safe driving in the period from September 2020 to July 2021[19]. He further states that in November 2020 the Respondent started to roll out its new program of monitoring driver behaviour to all drivers who had what is called a ‘tool of trade’ motor vehicle. This was communicated to staff including the Applicant in an email from Sarah Moore on 16 November 2020[20]. The email included an FAQ document which specifically dealt with the Driver Safety App which recipients were encouraged to download to their phones[21].
Cassandra Scott gave evidence that she holds the position of Health, Safety and Wellbeing Partner SA/NT, she has held that position for 14 months and one element of her role is that of monitoring the driving behaviour of employees required to drive as part of their job. She states that the primary tool she uses in that task is a technology service provided by LBM Fleet Solutions (LBM) which is generally referred to by its former name ‘LogbookMe’[22].
Ms Scott states that the LBM service monitors speed of tracked vehicles in the following manner;
“a physical device is installed into the vehicle that is to be monitored;
b.the device contains a GPS tracker that records the vehicle's GPS location and speed at regular intervals and then submits this data to LBM;
c. LBM take the vehicle's speed data and compares it to the speed limit for the road that is being driven on;
d. the relevant speed limit is identified with reference to data provided by HereMaps - a major third party provider used by LBM and many other navigation and mapping companies;
e."speeding event" is recorded if the recorded speed of the vehicle exceeds the speed limit for 450m or more; and
f.a margin of 10% is applied so that, for example, a vehicle travelling at 65km/h in a 60km/h zone will not trigger a speeding event.”[23]
Ms Scott further states that in addition to the physical device, the driver of the vehicle has an app installed on their phone that;
“
a.a. notifies the driver when a "speeding event" is recorded;
b. allows a driver to review any speeding events at the end of their journey (and at any point afterwards); and
c. allows a driver to challenge any speeding events that they have recorded (e.g., if they believe the speed limit used was incorrect).”[24]
Ms Scott also states that in addition to the app installed on drivers’ phones she understands that drivers receive emails notifying them of speeding events and are also able to access data and challenge speeding events via a web portal.[25]
Ms Scott also gave the following further relevant evidence;
· LBM provide a web portal that allows the Respondent to access the data recorded by devices installed in its fleet of vehicles[26].
· Ms Scott monitors the data on a daily basis to look for any high range readings where the speed limit was exceeded by 21km/h or more, and where such readings are verified by LBM, she reports the speeding event to the relevant line manager[27].
· Ms Scott does not request LBM to verify readings where the speed limit is exceeded by less than 21km/h as these readings are considered legitimate if the driver has not challenged the reading within 3 days of the speeding event[28].
· A monthly report is generated that includes all of the speeding events which is then distributed to the general manager of the relevant state/territory[29].
The Applicant states that the LBM system, while tracking current speed vs a database of speed limits, gives no indication to the driver of what it has determined the speed limit to be for any given area which she says is problematic where the data base is in error and where speed signposts are obscured or missing. She further states, that while aware of the email notification mechanism/process to dispute a speeding event, she was not trained or even made aware that she could dispute speed events until the final event notification on 1 November 2021. She also claims to have not received any emails from LBM so she was unable to dispute any speeding events[30]. She did however acknowledge under cross-examination that she had received a Speeding Alert notification email on 10 May 2021[31] which she had raised with Mr Jones. She further conceded that she may have received other Speeding Alert notifications but states she did not get all alerts.
Mr Jones rejects the Applicant’s evidence and states that on each occasion that the Applicant’s vehicle speed was recorded as exceeding the speed limit, both he and the Applicant would receive an email alert which notified the GPS coordinates of the event and the speed being travelled[32]. He further states that there was an ability to challenge these notifications as was identified in the materials previously circulated to the Applicant and other drivers. He also states that the Applicant was reminded by him in an email on 10 May 2021 of her ability to challenge the LBM notifications and was invited to contact him if she had any difficulties doing so[33].
Applicant’s speeding and vehicle incidents
Ms Scott gave evidence that based on the LBM data available to her, she was able to identify that the Applicant had recorded 62 speeding events between 21 February 2020 and 27 November 2021[34]. The number of monthly speeding events in that period may be summarised as follows;
· February 2020 - 1 event
· September 2020 - 2 events
· October 2020 - 7 events
· November 2020 - 15 events
· December 2020 - 10 events
· January 2021 - 9 events
· February 2021 - 13 events
· April 2021 - 1 event
· May 2021 - 2 events
· June - 2 events
· November 2021 - 2 events
Ms Scott gave evidence that the Applicant challenged one of the speeding events at the time of the event, that being an incident on 10 May 2021 when she was recorded driving at 71km/h on a road in Rockbank that was speed limited to 60km/h. The Applicant disputed the event stating that she was “Following behind Tiff Docherty who did not get a safety event whilst in her car.”[35] Ms Scott states that the LBM data revealed that Ms Docherty was travelling just under or slightly above the relevant speed limit at the time of the Applicant’s speeding event and where Ms Docherty did exceed the speed limit it was within the margin (of 10%) allowed before a speeding event is recorded. Two maps showing the respective speeds of the Applicant and Ms Docherty on the stretch of road in question were tendered in evidence by Ms Scott[36].
While the Applicant agreed that the list of 62 speeding events represented a large number of incidents over an 18 month period and revealed a pattern, she states that not all LBM data is accurate. She specifically challenged several recorded speeding events in the proceedings[37], those being;
· On 15 February 2021, the Applicant was recorded doing 90km/h in a 70km/h zone in Altona. She claims that the 70km/h speed limit was not sign-posted, and while acknowledging there was a 40km/h speed limit sign at one point on the road, she believed this applied for a short section of the road that included a speed hump. The Applicant accepted the proposition that legally she was obliged to keep her speed at the signposted 40km/h speed on that stretch of road unless another sign indicated otherwise.
· On 25 February 2021, three sequential events of 95 km/h in an 80km/h zone were recorded (and admitted by the Applicant) on the Calder freeway. She states that she placed the car on cruise control in the immediately preceding 100km/h zone section of the freeway, was engaged in a hands free phone call with a customer and failed to observe the speed limit change where the 100kmh zone changed back to 80km/h for 1.5 km.
· On 28 February 2021, the Applicant was recorded doing 71km/h in a 60km/h zone at Little River. She claims that the speed limit was not signposted in the direction she was travelling while acknowledging there was a 60km/h sign that was visible when travelling in the opposite direction.
· On 10 May 2021, the Applicant was recorded doing 71km/h in a 60km/h zone. She states she was closely following a co-worker Tiff Docherty (who did not record a speeding event) in a 60km zone and could not have exceeded the speed limit for an extended period, otherwise she would have ran into the back of Ms Docherty’s car.
· On 19 May 2021, the Applicant is recorded as having been doing 97km/h in an 80km/h zone at Taradale. She states there was insufficient detail provided in the report, including no road title. She further says there was no way to confirm or deny if an actual speed limit sign was visible in the area and speculated that the signs may have been obscured by vegetation at the time of the recorded speeding event.
· On 21 June 2021, two sequential events of 111km/h in a 100km/h zone were reported (and admitted by the Applicant). She states that the event was on the Western Freeway where the speed limit drops from 110km/h to 100km/h, that she was on cruise control at the time of the speeding event, was unfamiliar with the road and was on a hands free call with a customer at the time.
Mr Gambaro gave evidence in relation to the Applicant’s challenge of a number of the recorded speeding. In respect of the event on 15 February 2021, Mr Gambaro states as follows;
· that this speeding event occurred on Merton Street in Altona, a map of which he appended to his statement and marked with an X where the event was recorded[38];
· he drove to the site of the speeding event on 13 May 2022 to see if he could see any visible speed limit signs[39];
· approaching from the south he observed a 40km/ speed limit sign approximately 1.15km before the area where the Applicant was recorded speeding[40];
· he also observed two 20km/h advisory speed limit signs adjacent to speed humps approximately 1.15km before the area where the Applicant had been recorded speeding[41];
· otherwise, he did not see any other speed limit signs, end speed limit signs or derestriction signs[42];
· the road was continuous between the 40kmh speed limit sign and the area where the Applicant weas recorded speeding[43];
· he marked the approximate location of the 40km/h speed limit sign on the map and took a photo of the sign[44];
· the 40km/h sign did not appear to have been recently installed and he also observed what appeared to be the same sign, in the same location in historical Google Street View imagery taken in 2019[45]; and
· he concedes that his observations support the Applicant’s claim that there no 70km/h speed limit signs but there was nothing to suggest that the speed limit was anything other than 40km/h.
In respect of the event on 28 February 2021, Mr Gambaro states as follows;
· the event occurred on You Yangs Road, Little River, a map of which he appended to his statement and marked with an X where the event was recorded as occurring[46];
· he states that he drove to the site of the event on 13 May 2022 to see if he could see any visible speed signs and observed that the road runs roughly east to west and as he was unsure which direction the Applicant was driving he looked for speed signs in both directions[47];
· approaching from the east he observed three 60km/h speed limit signs approximately 800 metres, 525 metres and 250m metres respectively before the area the Applicant was recorded speeding[48];
· approaching from the west he observed three 60km/h speed signs approximately 575 metres, 225 metres and 150 metres before the area where the Applicant was recorded speeding[49];
· none of the signs, of which he took photographs[50], appear to have been recently installed with the exception of the sign observed by Mr Gambaro to be 150 metres from the area when he was travelling west[51]; and
· he observed what appeared to be the same signs, in the same location in historical Google Street View imagery taken in March 2015[52].
In respect of the event on 19 May 2021, Mr Gambaro states as follows;
· the event occurred in Taradale, a map of which he appended to his statement and marked with an X where the event was recorded as occurring[53];
· he states that he drove to the site of the event on 13 May 2022 to see if he could see any visible speed signs and observed that the road runs roughly north to south and as he was unsure which direction the Applicant was driving he looked for speed signs in both directions[54];
· approaching from the north he observed three 80km/h speed limit signs approximately 500 metres, 360 metres and 110 metres respectively before the area the Applicant was recorded speeding[55];
· approaching from the south he observed an 80km/h speed limit sign approximately 100 metres before the area the Applicant was recorded speeding[56];
· none of the signs, of which he took photos[57], appeared to have been recently installed and he observed what appeared to be the same signs, in the same location in historical Google Street View imagery taken in March 2010[58].
On 25 March 2021, after attending a meeting with Mr Jones at approximately 3.00pm to discuss allegations of speeding, the Applicant was caught exceeding the speed limit by a speed camera at 3.42pm on the way home from the meeting. An infringement notice was subsequently issued by Victoria Police in relation to the speeding offence[59].
On 5 August 2021, the Applicant was involved in a motor vehicle accident in Castlemaine. According to Mr Jones, the Applicant called him on that day to notify him of the accident during which conversation he recalled her saying words to the effect “I was involved in an accident. I was at fault.”[60] Following the incident the Applicant completed a document in the Respondent’s ‘BeaKON’ system recording her version of the accident. The investigation of the accident by the Respondent identified the Applicant as being at fault and needing to take ‘additional time’ when driving.[61]
The following table provided by the Respondent summarises the speeding events that occurred after the 12 February 2021 “Line in the sand” email from the CEO and which of those events were challenged by the Applicant;
| Date | Time | Location | Speed limit (km/h) | Actual speed | Response by Applicant | |
| 1 | 15/2/21 | 12.30.00 | Koroit Ck, Altona | 80 | 89 | Challenged |
| 2 | 15/2/21 | 17:04:00 | Merton St, Altona | 70 | 90 | No response |
| 3 | 25/2/21 | 09:00:00 | Calder | 80 | 95 | |
| 4 | 25/2/21 | 09:00:00 | Calder | 80 | 95 | |
| 5 | 25/2/21 | 09:00:01 | Calder | 80 | 95 | |
| 6 | 28/2/21 | 10:15:00 | Little River | 60 | 71 | Challenged |
| 7 | 25/3/21 | 15:42:00 | Oakleigh East | 40 | 45 | |
| 8 | 18/4/21 | 08:39:00 | Port Melbourne | 80 | 90 | |
| 9 | 10/5/21 | 10:09:00 | Rockbank | 60 | 71 | Challenged |
| 10 | 19/5/21 | 02:32:00 | Taradale | 80 | 97 | Challenged |
| 11 | 21/6/21 | 11:50:00 | Leigh Creek | 100 | 111 | |
| 12 | 21/6/21 | 11:49:00 | Leigh Creek | 100 | 111 | |
| 13 | 1/11/21 | 16:20:00 | Ardeer | 70 | 79 |
In addition to the above speeding events, there was one further speeding event that was recorded against the Applicant, that being on 27 November 2021 at which point the investigation into the 1 November 2021 speeding event was underway. The 27 November 2021 event involved the Applicant being recorded travelling 63km/h in a 50km/h speed limit area. The Applicant claims that she disputed that recorded speeding event directly with LBM and that the speeding event was expunged from her records. The Respondent produced evidence that contradicted that claim. Ms Scott confirmed that the record was checked by LBM, was confirmed as correct and was not expunged[62].
Warnings
The Applicant received various counselling and several formal warnings in relation to her recorded speeding. These are set out below.
On 21 January 2021, a record of a ‘Coaching Review’ discussion held with the Applicant was made by Mr Jones. While the record captured other elements of the Applicant’s performance, the note specifically recorded their conversation relating to a speeding incident and said as follows;
“…had a conversation around the speeding incident logged at 122km. Comfortable that this will not happen again.”[63]
On 12 February 2021, the Applicant was issued with a written warning (the First Warning) by way of email by Mr Jones following various recorded speeding events in January 2021. The email identified that the Applicant had been recorded speeding on several occasions in January 2021, that excess speeding has the potential to cause serious harm and that if further instances occurred, without reasonable cause, the Applicant may be subject to formal disciplinary action.[64]
On 26 March 2021, the Applicant was issued with a further written warning by way of letter (the Second Warning) by Mr Jones following her being recorded speeding on several occasions in February 2021. The letter identified seven speeding incidents, acknowledged some mitigating factors but concluded that the allegation that she had driven at excessive speed had been substantiated based on the Applicant’s own admission. After acknowledging steps the Applicant was taking to address the conduct, the Respondent concluded that a Written Warning was the appropriate sanction. The letter went on to relevantly state;
“…
This letter serves as a Written Warning in light of the above specified allegations.
Further to this and as discussed with you today, it is:
1. Imperative that you ensure a high level of safety at all times. Amatil takes breaches of workplace health and safety extremely seriously;
2. Ensure that you remain diligent in checking your speed and using your vehicle’s speedometer and NAVMAN where appropriate and;
3. Re-read the Tool of Trade Policy by the 2 March 2021, confirming your understanding of the policy by email.
You have received all the appropriate communications and training, however, should you require any further support or require additional training of what is expected moving forward, I would like to encourage you to reach out.
Consequences of Not Meeting Required Expectations
Please be aware that a failure to meet the expected standard of conduct, without reasonable cause, may result in further disciplinary action up to and including termination of your employment.
…”[65]
On 8 June 2021, the Applicant was issued with a further warning (the Third Warning) by way of email from Mr Jones following her being found speeding on a further two occasions across April/May 2021. The email referred to the Applicant’s and Mr Jones conversation earlier that day in relation to the alleged speeding. The email went on to identify the substantiated speeding events, stated that the Applicant had breached the Respondent’s Tool of Trade Policy and road safety rules and that such conduct created a potential for serious harm. The Applicant was advised that the conduct needed to be remedied immediately and that if the issue arose again she may be subject to formal disciplinary action.[66] The Applicant responded by email that same day stating, “Thanks for the heads up Rick I will keep not speeding front of mind.”[67]
On 7 July 2021, the Applicant was issued with a further formal written warning (the Fourth Warning) by Mr Jones following her having been found speeding on a further five occasions in May and June 2021. The letter also identified the speeding fine referred to above at [31] that was incurred on 25 March 2021. The letter identified that the allegations of speeding were substantiated based on the Applicant’s own admission. The letter relevantly stated as follows;
“…
Outcome and Warning Details
We appreciate that you are aware of breaching multiple company policies, in addition to having received a written warning for speeding in February 2021. We acknowledge that your speeding events have reduced, and your driver safety record has improved. We want to reiterate that CCEP takes speeding very seriously and holds safety as a priority for its employees.
We have given thorough consideration to the mitigating factors you raised in response to the above allegations, your employment history and other surrounding circumstances. Similarly, we have given thorough consideration to the seriousness of the substantiated conduct and breaches to the Health & Safety and the ToTV policies.
As a result of the matters raised in this letter, you are being issued with a written warning which will be placed on your personnel file. Susanna, as has hopefully been made clear throughout this process, the issues raised are of particularly serious concern to the business. The business was considering whether you should be asked to show cause as to why the termination of your employment was not the most appropriate outcome, and this warning is provided to you in the strongest possible terms.
This letter serves as a Written Warning in light of the above specified allegations.
Further to this and as discussed with you today, our ask of you is:
1. To maintain a high level of safety at all times to avoid any future breaches of policy;
2. Ensure that you remain diligent in checking your speed at all times when using your company TOTV;
3. Re-read the Tool of Trade Policy and Health & Safety Policy by 9 July 2021, confirming your understanding of the policy by email.
You have received all the appropriate communications and training, however, should you require any further support or require additional training of what is expected moving forward, I would like to encourage you to reach out.
Consequences of Not Meeting Required Expectations
Please be aware that a failure to meet the expected standard of conduct, without reasonable cause, may result in further disciplinary action up to and including termination of your employment.
…”[68]
On 13 September 2021, the Applicant received a Counselling Letter from Mr Jones in relation to the vehicle accident she had been involved in on 5 August 2021.[69]
The Applicant states that as part of the driver behavioural improvement process, she had made every effort to improve her driving record. She says she took steps including driving 5km/h under the sign posted speed limit and buying a Navman device out of her own pocket to ensure she was able to receive audio and visual speed notifications. She also claimed that both Mr Jones and Mr McKenna acknowledged that her speeding was not deliberate[70]. Mr Jones agreed under cross-examination that he acknowledged in meetings held with the Applicant in 2021 that he understood that her speeding while persistent, was not deliberate.
The Applicant’s dismissal
On 1 November 2021, the Applicant was involved in another speeding event, which was brought to the attention of her Manager Mr Gambaro. Mr Gambaro states that he spoke to the Applicant on 15 November 2021 and asked her to provide her version of events. The details of the allegation were set out in a letter[71] (the Allegations Letter) that same day along with a direction to attend an on-line meeting on 17 November 2021. The Applicant claims she was not offered a support person for the meeting on 17 December 2021.
On 17 November 2021, the Applicant responded to Mr Gambaro by email[72] in the following terms;
“…
I am disappointed with myself that a driving behaviour incident has happened again, it was not intentional. I am in a new territory and the appearance of the arterial road approaching the Western Ring Road on-ramp is a 6 lane highway with a large central median strip. Considering the size and appearance of the area, I incorrectly assumed it was an 80 km zone.
At the time, I was on my way to see my Doctor who was issuing a certificate of capacity for an ongoing workplace injury issue, and was in some discomfort at the time. I will give more details of my medical issues if necessary but the short version is that these issues are getting much closer to being effectively managed now.
I apologise for the lapse in judgment, and I will make every effort to prevent future speeding incidents.
…”
On 19 November 201, the Respondent wrote to the Applicant’s treating medical practitioner seeking further information in relation the medical condition referred to by the Applicant to establish whether that may have contributed to the incident[73]. Mr Gambaro states that later that day the Applicant contacted the Respondent’s HR team and advised that her doctor would be unable to respond to the medical information request for an indefinite period of time[74].
On 19 November 2021, the Applicant confirmed in an email[75] to the Respondent that the medication she was on did not prevent her from performing her duties safely. The email relevantly stated as follows;
“…
Regarding the discussion around the allegation on Monday and then the response I gave you. There seem to be ongoing concerns regarding medication and its effects. I have full medical clearance to work. If I was feeling effected by the medication I would not be on the road. My doctor was satisfied that this medication would enable to perform my duties as a BDE safely. When I need to increase the dose, this has been done over the weekend when I am not required to drive.
…”
Mr Gambaro states that shortly after her email of 19 November 2021, the Applicant commenced a period of personal leave in support of which she produced a medical certificate stating she was unable to work for a period of fourteen days. He further states that as a consequence of the Applicant’s personal leave he suspended the disciplinary proceedings relating to the speeding event, the suspension of the investigation being consistent with Respondent policy in circumstances where an employee under investigation is unwell[76].
The Applicant gave the following evidence in relation to her medical condition which she says may have impacted on the speeding event on 1 November 2021. She variously states;
· she was referred to a pain specialist, Dr Malcolm Ong in September 2021 in relation to a workplace injury she says she previously sustained in the course of performing her duties in Castlemaine on 25 November 2020;
· she was advised by Dr Ong that the medication prescribed for her would not prevent her from performing her normal duties but she should not drive for 24 hours after a medication dosage increase;
· in responding to the 1 November 2021 speeding event notification, she said to Mr Gambaro on 17 November 2021 that she did not believe the medication had impaired her ability to drive;
· when the Respondent requested additional medical information from her treating doctor on 19 November 2021, that request could not be immediately met as her doctor had left the practice and it was necessary for the Applicant to engage with a new physician;
· she says she met with her new physician, Dr Amutha Manuel, in December 2021 following which Dr Manuel wrote a letter to the Respondent regarding the medication the Applicant had been prescribed;
· in the letter sent to the Respondent, Dr Manuel advised that the Applicant should not drive for 72 hours after any increase in medication dosage; and
· on the basis of Dr Manuel’s advice, the Applicant believes she was impaired at the time of the speeding event on the 1 November 2021.[77]
On 8 December 2021, the Applicant produced a medical report from Dr Samuel that set out details of her medical condition. Mr Gambaro states that while the medical report indicated that the medication the Applicant could have some potential side effects in certain situations, it also indicated to him that she was not really affected by it on 1 November 2021[78].
The letter from Dr Samuel on 8 December 2021 relevantly stated as follows;
“…
Gabepentin has the potential to impair Ms Meijer’s ability to drive/safely operate her work vehicle due to fatigue, sedation and/or cognitive dysfunction, especially at timepoints that correspond to commencement of modification or increase of dose. There has been a steady increase of dosing from commencement on 7 September 2021. The last increase of dose as per medical records (prior to my involvement) was November 16, 2021. Medical reports indicate that reports of drowsiness with the commencement of Gabepentin but minimal side effects since then. Ms Meijers appears to have stabilised on her current dose at my first consultation with her on December 1, 2021. It is my practice to advise patients to refrain from driving or operating heavy machinery for 72 hours after the mentioned changes. Additionally, I also advise patients to refrain from afore-mentioned activity if they feel effects from the medication at any other time. I have provided the same advice to Ms Meijers at my first consultation with her on 1 December 2021.
…”[79]
On 4 January 2022, a ‘Show Cause’ letter[80] was sent to the Applicant. Mr Gambaro states that the decision to issue the Show Cause letter was only taken after consideration of the Applicant’s driving record, previous warnings issued to her, the Applicant’s 17 November 2021 email response and the information on the medication she was on[81]. The Show Cause letter set out the allegations, indicated that the Respondent had lost confidence in the Applicant, identified she had breached her contract of employment and various policies and stated that the Respondent had formed a preliminary view that her employment should be terminated. The Applicant was invited to provide a written response by 5 January 2021 and was stood down on pay pending finalisation of the matter.
On 7 January 2021, the Applicant responded to the Show Cause letter relevantly stating as follows;
“…
With regard to the event. I realise my driving history coupled with this most recent event 4 months after my last transgression would suggest that I am not willing to change. This is not the case. I never want to breach the speed limit again. The event was not a deliberate act. It was a mistake. I misread the road and travelled at the speed the other vehicles were going, assuming I was doing the right thing in the absence of seeing a road-sign or receiving an alert from my Navman.
With regard to my medical information. The information I have from Dr Amutha, both in the letter attached and through discussions I’ve had with her, the most recent of which was on Monday 5th of Jan, have made me realise that I was potentially impacted by the medication prescribed for my workplace injury. Though generally I felt fine and not woozy or unbalanced, I was experiencing a sensation similar to feeling startled. It is difficult to describe but it feels like a small electric shock, like when you get a fright, but without a physical response in the body. This may be a side effect of the medication or it may be a stress response.
I understand that the business has lost confidence in me, and nothing is more important to me than restoring that confidence. Consequently, I am taking the following steps to show how serious I am about restoring myself in the eyes of the business.
With regard to my Navman. My Navman requires manual updating and was slightly behind the latest revision. I have since done this to ensure the speeds it indicates are the ones that are most up to date on that platform.
With regard to my current medical status. Dr Amutha has prescribed weaning the medication down and I will cease taking it altogether shortly. While on medical leave I have placed a great "JG-17" 2 deal of focus on my injury treatment as well as trying to reduce my anxiety. I am practising yoga each day and meditating, I have changed my diet and reduced my caffeine intake. I am having regular physio and acupuncture and am about to start psychology for the pain management part of the program.
With regard to road safety. I have no desire to speed, I have no desire to flout the safety policies of CCEP. I have booked a half day safe driving course with ITS to ensure my driving skills improve.
There is no such thing as safe speeding. I love working with the team a CCEP and I wish to assure you all that you can trust and have confidence that I am committed to staying with the speed limits, driving safely and representing CCEP appropriately.
…”
During cross examination, the Applicant gave the following evidence in relation to her medical condition;
· at the time of the 1 November 2021 speeding event, she was having episodes every 3-5 minutes where she felt ‘startled’ which she thought at the time was due to stress but now believes may have been due to the Gabepentin medication she was on;
· claimed that based on the information provided to her by Dr Samuel in early December 2021, she could have been affected by the medication on 1 November 2021;
· was unable to reconcile her evidence that she was experiencing side effects at the time of the 1 November 2021 speeding event with Dr Samuel’s report that the side effects had abated shortly after her commencement on Gabepentin in September 2021;
· agreed that the medication she was on in December 2021 was at a similar level to that she was on at 1 November 2021 and despite stating she had been experiencing side effects in early November 2021, she continued to drive a vehicle after she received advice of potential side effects from Dr Samuel in early December 2021;
· agreed that she felt safe to drive and was not feeling drowsy at the time of the 1 November 2021 speeding event and nor were the side effects affecting her ability to read road signs;
· accepts in hindsight that it may have been unsafe to drive while she was on Gabepentin, which continued up to February 2022 when her medication changed; and
· accepts that she was responsible for the speeding event on 1 November 2021.
Mr Gambaro states that in reaching a conclusion regarding the Applicant’s employment he considered the four month gap between previous speeding events of the Applicant and the 1 November 2021 event and whether that gap suggested the Applicant was making an effort to stop speeding. He says he considered it more likely that the gap in speeding events was attributable to the most recent Covid lockdown Melbourne, which was in place from 5 August 2021 to 21 October 2021, during which period the Applicant conceded she was required to work from home. He says he also took into account that the Applicant had expressed contrition following previous speeding events yet continued to speed. He further states that he had lost confidence in the Applicant and was very confident that she would continue to speed which exposed her and others to the risk of a serious incident[82].
Mr Gambaro states that as he had only been in the role for a short period of time, he consulted with his Manager, Mr David McKenna and the Respondent’s HR team over the decision on the Applicant’s employment. He says that all agreed that there was no option other than terminating the Applicant’s employment in the circumstances. A letter confirming the termination of her employment[83] (the Termination Letter) was sent to the Applicant on 13 January 2021. The Termination Letter relevantly stated the following;
“…
In your show cause response, you raised the following points for CCEP to consider in making its decision regarding your employment:
• Your speeding was not a deliberate act;
• The actions you are taking to ensure it does not occur again, namely updating your Navman, enrolling in a driving course and stopping medication, and;
• You are starting to place more of a focus on your wellbeing such as by practicing yoga and meditating. Since your written show cause response, CCEP has taken the time to carefully consider your responses through this process.
Notwithstanding your responses, CCEP has considered the sustained nature of the incidents, coupled with a lack of ownership, remains of great concern.
Given the above, CCEP has made the decision to terminate your employment. The reasons for termination are:
• Your repeat inappropriate conduct
• Your unacceptable breaches of our Code of Conduct
• Your ongoing failure to follow company policies, your employment contract, and subsequent business expectations as it relates to engaging with contractors in a respectful manner.
…”
Mr Gambaro confirmed during cross examination that reference in the Termination Letter to the dismissal being in part due to “……subsequent business expectations as it relates to engaging with contractors in a respectful manner” was in error. He confirmed that at no point had the dismissal been due to the Applicant’s engagement with contractors. The dismissal was, according to Mr Gambaro, purely driven by the Applicant’s driving behaviour.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Initial matters
Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
Relevant to the determination of the preliminary matters I am satisfied that;
· the Applicant was dismissed on 13 January 2022 and filed her unfair dismissal application on 20 January 2022, that latter date being within 21 days of the date of his dismissal;
· at the time of the Applicant’s dismissal the Respondent employed over 3000 employees and is therefore not a small business employer within the meaning of s.23 of the Act;
· the Applicant commenced employment with the Respondent on 23 September 2019 and at the time of her dismissal had been employed for a period of over two years, that period being in excess of the minimum employment period of 6 months;
· the Applicant was covered in her employment by the Commercial Sales Award 2020 and was on an annual salary of approximately $75, 283 per annum; and
· the Applicant was not dismissed due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), the Applicant was a person protected from unfair dismissal, the small business fair dismissal code does not apply, and the dismissal was not a genuine redundancy. I am now required to consider the merits of the application.
Was the dismissal harsh, unjust, or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission 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 the FWC considers relevant.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s 387(a)?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[84] and should not be “capricious, fanciful, spiteful or prejudiced[85].” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer[86].
The Applicant was dismissed with five weeks pay in lieu of notice on 13 January 2021 following an investigation into a speeding event on 1 November 2021. The Letter of Termination stated that the Applicant’s conduct was inappropriate, breached the Respondent’s Code of Conduct, represented an ongoing failure to follow company policies and comply with the Applicant’s contract of employment. The dismissal followed four previous warnings issued to the Applicant in 2021 in respect of similar behaviour.
It is apparent on the evidence and both parties readily agreed that safe driving was a critical part of the Applicant’s role. It is also clear that the 1 November 2021 speeding event which led to the Applicant’s dismissal occurred against the background of a major driver safety initiative of the Respondent in which a new driver safety monitoring system (LBM) was rolled out in 2020 and fully implemented and reported on from 27 December 2020. The LBM system recorded and reported on drivers using company vehicles in which monitoring devices were fitted. Vehicle speed against road speed limits is captured and reported on where the speed of the vehicle exceeds the speed limit for a particular road for a sustained period of 450 metres or more by more than 10% above the designated speed limit. The Applicant had use of a company vehicle in which such a monitoring device was fitted.
The evidence reveals that the new driver behaviour monitoring system was communicated to staff in late 2020 and was supported by an email from the Respondent’s CEO on 12 February 2021 that launched the new Guidelines and communicated to staff that the Respondent was “drawing a line in the sand” in respect of speeding. The Applicant acknowledged that she was aware of the LBM system, the Guidelines that were rolled out and the CEO’s “line in the sand email.” She also agreed that the Guidelines and the “line in the sand” communication were the subject of presentations and discussions in team meetings held by Mr Jones. She also agreed that she had undertaken training in the Guidelines although rejecting that she received training in how to dispute a recorded speeding event.
Against the above-described background of the new driver behaviour monitoring system and the Respondent’s sharpened focus on speeding, it would be an understatement to say that the Applicant had a poor record of speeding events, which she acknowledged. Up to the 12 February 2021, the Applicant was recorded by the LBM system as having incurred approximately 50 speeding events in the period from February 2020 to 12 February 2021. Between the 12 February 2021 and her dismissal on 13 January 2022 she recorded a further 13 speeding events. The majority of speeding events fell into the category of ‘Mid-Range’ events which under the Guidelines triggered an investigation.
While the Respondent may have adopted a less rigorous approach to speeding events prior to 12 February 2021, that changed following the launch of the Guidelines and the CEO’s email to staff on that date. In the case of the Applicant, her poor record of speeding drew immediate attention with the First Warning issued on 12 February 2021. Further warnings followed quickly, culminating in the Fourth Warning issued on 7 July 2021 which made it abundantly clear to the Applicant that her employment was at risk if there were further speeding events recorded. Significantly, the Fourth Warning, which was issued in the “strongest possible terms”, explained that the Respondent had been considering asking the Applicant at that point to show cause why she should not be dismissed, but it elected to issue a formal warning. The Applicant conceded that she had been repeatedly warned regarding her speeding.
The Applicant’s poor driving record is revealed most strikingly by the events of 25 March 2021. Following a meeting between the Applicant and her then Manager Mr Jones, the very subject of which was the Applicant’s speeding record, the Applicant was captured exceeding the speed limit by a speed camera on her way home. She was subsequently issued with an infringement notice by Victoria police. It beggars belief that the Applicant was caught speeding immediately after she left a meeting during which she was warned regarding her speeding.
I am comfortably satisfied that the Applicant was on notice regarding her speeding record as a result of the four warnings she received. That she appreciated the improvement she needed to make in her driving is evident from the contrition she expressed to Mr Jones in an email on 8 June 2021 following receipt of the Third Warning. If there were any doubt as to what was required of her, that doubt was unequivocally removed when she received the Fourth Warning which any reasonable person would have taken for what it clearly was, a final warning.
Notwithstanding the Applicant’s acknowledgement of the Respondent’s policies, her poor driving record and the warnings she had received, the Applicant nonetheless contends that the dismissal lacked a valid reason for her dismissal for a number of reasons. Firstly, she claims the LBM system was not entirely accurate and she challenges a number of speeding events which the Respondent relied on in issuing the various warnings. Secondly, she claims not to have received email alerts of speeding events or received training in how to dispute a recorded speeding event with LBM. Thirdly, she claims that she was likely to have been impaired by the medication she was on at the time of the 1 November 2021 speeding event that led to her dismissal.
Applicant’s challenge of speeding events
Dealing firstly with the accuracy of the LBM system and the Applicant’s challenge of particular speeding events. The Applicant seeks to impugn the accuracy of the LBM system, and specifically the accuracy of the data relied on by LBM in respect of speed limits on particular roads against which a driver’s speed is measured. The Applicant identified a number of specific recorded speeding events that underpinned the warnings she received, which she says were inaccurate. I turn to consider those speeding events.
The first speeding event raised was that recorded on 15 February 2021 at Merton St Altona in which the Applicant was recorded driving at 90km/h in a 70km/h speed limit zone. She states that there was no 70km/h speed limit sign visible, a point on which Mr Gambaro agreed having visited and taken photos of the site on 13 May 2022. While there was no 70km/h speed limit sign, there was also no 80km/h or 90km/h speed limit signs. There was however a 40km/h speed limit sign present which the Applicant conceded. While conceding that the law required her to observe the last speed sign on a particular road the Applicant was unable to reconcile that concession with her recorded speed of 90km/h when there was no sign to indicate a speed of greater than 40km/h was permitted on the relevant stretch of road.
I do not accept the Applicant’s explanation of her recorded speed of 90km/h on Merton Road in Altona or that the recorded speeding event was in error. There was no sign permitting a speed of 90km/h on that particular road or 80km/h for that matter. The only visible speed limit sign on the relevant stretch of road based on Mr Gambaro’s unchallenged evidence was that of 40km/h. For the Applicant to say she simply drove to what she regarded as the safe and allowed speed, revealed a concerning lack of care and attention on her part. The incident was appropriately relied on by the Respondent in issuing the Second Warning. Even if the Applicant’s explanation were accepted, there were five other speeding events relied for the Second Warning.
The next speeding event challenged by the Applicant occurred on 28 February 2021 on You Yangs Rd in Little River. The Applicant in her evidence states that there were no visible speed limit signs in the area aside from one 60km/h sign that was only visible if she had been driving in the opposite direction to that she was driving on the day. Mr Gambaro’s evidence directly contradicts the Applicant in that he identified and took photos of several 60km/h speed limit signs on the relevant stretch of road that were visible when travelling in either direction. He gave further unchallenged evidence that his review of historical Google Earth View imagery revealed that the signs were not new as suggested by the Applicant but were in place at least as early as March 2015.
I prefer Mr Gambaro’s evidence as to the presence of the 60km/h speed limit signs as it was not challenged or effectively rebutted by the Applicant beyond her speculating that the signs were new. I also accept Mr Gambaro’s evidence as to his review of historical Google Earth View images. This leads me to conclude that the relevant road was signposted with 60km/h speed limits on the 28 February 2021 and as such I do not accept the Applicant’s challenge of the speeding event recorded for that day. It was open to the Respondent to rely on the speeding event of 28 February 2021 in issuing the Second Warning. Even if I am wrong in my finding on this particular speeding event, there were five other speeding events (including the Merton Rd Altona speeding event of 15 February 2021) relied on by the Respondent in issuing the Second Warning.
A further speeding event challenged by the Applicant occurred on 10 May 2021 in which she was recorded driving at 71km/h in a 60km/h speed limit zone. The Applicant states that she was closely following a work colleague Ms Docherty who did not receive a speeding event notification on the same stretch of road at that time. The Applicant contends that it would not have been possible for her to speed given her proximity to Ms Docherty and the risk of her driving into the back of Ms Docherty’s car had she been speeding. Data produced by Ms Scott in her evidence indicated the respective speeds of Ms Docherty and the Applicant. The Applicant rejected that it was possible for her to have sped given the close proximity of her to Ms Docherty.
Ms Docherty was not called to give evidence that would have confirmed or contradicted the Applicant’s evidence. It consequently falls to assess the reliability of the Applicant’s evidence. In doing so I note that this particular event is the only speeding event in which the Applicant challenges the accuracy of her recorded speed whereas other speeding events challenged by the Applicant involved her either challenging the accuracy of the LBM’s sign posted speed limit data or she claimed that speed limit signs were not visible. The Applicant was also unwilling to concede the possibility that in following Ms Docherty, she may have fallen behind then sped to catch up.
In circumstances where the accuracy of the Applicant’s speed data was not challenged in any of the other recorded speeding events and where the Applicant had a poor driving record over the previous 18 months, I find it more likely than not that the Applicant was exceeding the speed limit when trailing Ms Docherty in Rockbank on 10 May 2021 for a distance of 450 metres. If, however I am wrong in my conclusion and I were to accept that the recorded 10 May 2021 speeding event was in error, this would leave five other speeding events and the speeding infringement of 25 March 2021 open to be relied on by the Respondent in issuing the Fourth Warning.
Turning now to the speeding event recorded in Taradale on 19 May 2021 where the Applicant was recorded doing 97km/h in an 80km/h speed limit zone. The Applicant states she is familiar with that area and claims that the road was not signposted with 80km/h speed limit signs. Her evidence was again directly rebutted by Mr Gambaro who gave unchallenged evidence, including photos of speed limit signs, which established there were 80km/h speed limit signs visible when travelling in either direction on the relevant stretch of road. He also gave evidence of his review of historical Google Earth View imagery which confirmed the signs were present at least as early as March 2010.
The Applicant suggested on viewing Mr Gambaro’s photos of the speed limit signage that the signs were obscured by vegetation on 19 May 2021 which may explain why she had not seen the speed limit signs, evidence I found to be entirely unconvincing. Mr Gambaro gave unchallenged evidence on the presence and visibility of the signs which I prefer. Accordingly, I am not persuaded by the Applicant that the speeding event of 28 May 2021 was in error. It was relied on in part by the Respondent in issuing the Fourth Warning. Even if I am wrong in my conclusion regarding the validity of the 19 May 2021 speeding event, there were four other unchallenged speeding events referred to in the Fourth Warning and the additional matter of the Victoria Police speeding infringement referred to above at [69].
At this point I note that there are other speeding events raised by the Applicant in her material, those being three sequential speeding events recorded on the Calder Freeway on 25 February 2021 and two sequential speeding events recorded on the Western Freeway on 21 June 2021. The Applicant does not contest the accuracy of the recorded speeding events on those days but advances mitigating factors including that she was at the time of the speeding events on cruise control and also engaged in hands free phone calls with customers, which factors she says contributed to her not observing the speed limit changes on those days. Those mitigations must be rejected in my view. The Applicant bore sole responsibility for driving safely to the speed limit on those two days and the fact that she may have allowed herself to be distracted by phone calls or been overly reliant on use of cruise control, serves to reinforce the legitimate concern held by the Respondent regarding her driving habits and behaviour.
It follows from the above that I am not persuaded that the Respondent erroneously relied on several speeding events that are now challenged by the Applicant in issuing the Second Warning and Fourth Warning. The warnings issued were properly based on recorded speeding events, which I am not persuaded were inaccurate.
Applicant’ training in and use of LBM system
The Applicant contends that she did not receive email Speeding Alert notifications from LBM. She also states that she did not receive any training in and was not aware of how to dispute a speeding event until the 1 November 2021 speeding event. The significance of the Speeding Alert notifications is that for a ‘Moderate’ or ‘Mid-Range’ speeding event, the affected driver has three days within which to dispute the speeding event at which point it (the speeding event) is taken to be a legitimate speeding event and is then reported on to the Respondent’s management. The Applicant contends that as she was not receiving the alerts, she was unable to dispute the reading in a timely manner.
While initially claiming she did not receive email Speeding Alert notifications from LBM, the Applicant adjusted her evidence when confronted during cross examination with evidence of a Speeding Alert email notification she received from LBM on 10 May 2021[87] which she forwarded on to Mr Jones that same day. She then claimed during cross examination that she may have received some but did not receive all email notifications from LBM. Mr Jones rejected that evidence and stated that both he and the Applicant received email notifications after each speeding event.
I prefer Mr Jones’ evidence for the following reasons. Firstly, the Applicant changed her evidence when confronted with the email of 10 May 2021 which causes me to approach her evidence with some caution. Secondly, Mr Jones was clear in his evidence that both he and the Applicant received email alerts. Thirdly, the tone of the email from the Applicant was not one of questioning the nature or origin of the email but querying how the speed monitoring worked in the circumstances of the particular incident of her following Ms Docherty who did not receive a speeding alert. A fair reading of the email in my view is that the Applicant was not unfamiliar with driving alert notifications.
I am consequently satisfied that contrary to the Applicant’s evidence, she did in fact receive Speeding Alert notifications by email. Even if I am wrong, the Applicant also had access to the mobile phone app which notified drivers of a speeding event and she could also access the data and challenge a speeding event via a web portal. There were a number of avenues through which the Applicant was made aware of her speeding events, including the series of warnings she received. The Applicant’s claim that she did not receive the email Speed Alert notifications from LBM thereby mitigating her driving conduct is rejected.
Turning now to the training undertaken by the Applicant in how to challenge a speeding event. The Applicant conceded that she was aware of the Guidelines following their launch in February 2021 and that she was present at team meetings when the Guidelines as well as the CEO’s ‘line in the sand’ email were discussed. She also agreed that she had undertaken training in the Driver Behaviour Guidelines when taken in cross-examination to her email of 2 March 2021[88] in which she advised Mr Jones that she had completed the training module issued by Sarah Moore. While conceding she had completed some training, the Applicant was unable to say what the training included, while steadfastly maintaining that the training module she completed was not that provided in evidence by Mr Jones.
Mr Jones’ evidence was that the Applicant completed a module that relevantly included information on how an employee could dispute a speeding event. He included in his evidence a ‘dump’ of the slides[89] that were included in the on-line e-module. Several slides in the pack dealt with the process of disputing speeding events through use of the mobile phone app.
Mr Jones’ evidence as to the content of the training course was clear whereas all that the Applicant expressed certainty about was that the course did not include the material on how to dispute a speeding event. Inconveniently for her case, the Applicant was unable to describe any aspect of the content of the course. This leads me to favour the evidence of Mr Jones. Moreover, Mr Jones reinforced with the Applicant on 10 May 2021 that a speeding alert could be challenged, as can be seen by his email[90] in response to her query about the 10 May 2021 Rockbank speeding alert. The Applicant was encouraged by Mr Jones in his response to contact him if she had any further questions regarding the process. She did not.
Finally, if the Applicant is to be believed that she did not receive any training on and/or was not aware of how to dispute a speeding alert, it seems almost inconceivable that after having received various warnings including the Fourth Warning, the Applicant took no steps to establish how to challenge reported speeding events she disagreed with.
For the reasons set out above, I do not accept that the Applicant was neither trained in nor unaware of the process of challenging a speeding event until the 1 November 2021 speeding event. I am satisfied that the Applicant was trained in and made aware of the process of disputing a speeding event notification. This finding does not assist the Applicant’s contention that the Respondent lacked a valid reason to dismiss her.
Applicant’s medication
The Applicant states that she was prescribed Gabapentin to manage pain arising from a workplace injury she sustained in August 2020. She says she was made aware by her medical practitioner Dr Samuel in early December 2021 that the medication had potential side effects that could impact on her ability to safely drive a motor vehicle. According to Dr Samuel’s letter to the Respondent on 8 December 2021, potential side effects were more likely to correspond with commencement of the medication or when a dosage increase occurred. As the Applicant commenced on the medication on 7 September 2021 and steadily increased the dosage up till 17 November 2021 she stated it was her belief that she may have been impaired when driving on 1 November 2021.
The Applicant’s belief that she may have been impaired when driving on 1 November 2021 is undermined however by the following;
· Dr Samuel in her letter to the Respondent on 8 December 2021 referred to case file notes of the Applicant which indicated initial reports of drowsiness on commencement of the medication in September 2021 but minimal side effects since.
· Dr Samuel was not called to give evidence as to the condition of the Applicant on 1 November 2021.
· The Applicant was adamant in her email to Mr Gambaro on 19 November 2021 that she was safe to perform her normal duties and that had she felt affected by the medication on 1 November 2021 she would not have been on the road.
· In her Show Cause Letter response on 7 January 2021, the Applicant stated that she did not feel “woozy or unbalanced” but described a feeling of being startled which she surmised may be a side effect of the medication.
· While opining that the Gabapentin medication may have impaired her when driving on 1 November 2021, she could not reconcile that with her decision to continue driving while taking a similar medication dosage after learning of potential side effects from Dr Samuel on 8 December 2021.
Having regard to the above, the Applicant’s evidence can be put no higher than the Applicant’s believes that she may have been impaired on 1 November 2021. There is insufficient material before me to establish that the Applicant was impaired at the time of the 1 November 2021 speeding event. In fact, a number of matters tell strongly against such a finding, including the troubling inconsistency of the Applicant’s view of her potential impairment on 1 November 2021 with her decision to continue driving even after she received advice on the potential side effects of Gabepentin in early December 2021.
I am satisfied that the Applicant was not impaired such that she was unable to read speed limit signs or control the vehicle speed on 1 November 2021. As she properly conceded during her cross-examination, she alone was responsible for that speeding event. It follows that the Respondent was entitled to rely on the 1 November 2021 speeding event in determining whether to dismiss the Applicant.
Conclusion on valid reason
As earlier set out above, the Applicant was on notice regarding her speeding following the Fourth Warning that made clear that her employment would be at risk if a further speeding event occurred. The Applicant was aware of her obligations under the Guideline and the Tool of Trade policy and acknowledged the repeated warnings she received. The matters raised by the Applicant in mitigation of her conduct were unpersuasive for the reasons set out above.
It follows from the above that the Applicant’s conduct of repeatedly breaching the Guidelines, the Tool of Trade Policy and Code of Conduct founds a valid reason for her dismissal. This weighs in favour of a finding that the dismissal was not unfair.
Notification of the valid reason – s.387(b)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[91] and in explicit[92], plain and clear terms[93].
The Applicant was notified in the Show Cause Letter of 4 January 2022 that the Respondent was considering the termination of her employment having lost trust confidence in her arising from substantiation of the speeding event allegation. I am satisfied that the Applicant was notified of the valid reason for her dismissal before a decision to terminate her employment had been made. This weighs in favour of a finding that the dismissal was not unfair.
Opportunity to respond to any reason related to capacity or conduct – s.387(c)
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment[94].
The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly[95]. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[96]
The Applicant was invited by Mr Gambaro to provide her version of events following notification of the 1 November 2021 speeding event. She did so in a meeting on the 17 November 2021 and in an email to Mr Gambaro that same day. Following the completion of the Respondent’s investigation, the Applicant was issued a Show Cause Letter on 5 January 2022 which invited her to respond to the matters raised in the letter including the preliminary view the Respondent had reached that her employment should be terminated. The Applicant responded in writing to the Show Cause Letter on 7 January 2022.
The Applicant contends that the opportunity to respond was not genuine and merely tokenistic. Beyond that submission there is no evidence to support the claim. To the contrary, the evidence supports a conclusion that the Respondent afforded the Applicant a genuine opportunity to respond. Mr Gambaro first spoke with the Applicant on 15 November 2021 regarding the speeding event of 1 November 2021 during which the Applicant raised her medical condition as a potential explanation of the incident. The Respondent then sought further medical information from the Applicant’s treating medical practitioner, which was received on 8 December 2021. In the interim period the Respondent had also suspended the investigation for a period due to the Applicant having been unwell. It was not until after the further medical information was provided and reviewed by the Respondent that the Show Cause Letter was issued which then invited the Applicant’s response. These actions of the Respondent do not assist the Applicant’s claim that the process was tokenistic.
Having regard to the above, I am satisfied that the Applicant was provided with an opportunity to respond to the reasons relied on by the Respondent in dismissing her. This weighs in favour of a finding that the dismissal was not unfair
Support person – s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[97]
The Applicant claims she was not offered a support person for the meeting on 17 November 2021. That claim is however contradicted by the Allegations Letter of 15 November 2021 which specifically referenced her right to be accompanied by a support person. I am consequently satisfied that the Applicant was provided with the opportunity to be accompanied by a support person in any discussions held with the Respondent regarding her dismissal. In the circumstances, I regard this factor as a neutral consideration.
Warnings regarding unsatisfactory performance – s.387(e)
The dismissal related to the Applicant’s persistent unsatisfactory conduct in respect of multiple speeding events over a 12 month period. The Applicant had received multiple warnings from her previous manager, Mr Jones, in respect of her unsafe driving behaviour including the Fourth Warning issued on 7 July 2021. That warning in my view ought to have left the Applicant with no uncertainty as to the consequences of any further speeding events. It specifically stated that the Respondent had been considering asking her to show cause why her employment should not be terminated at that point but had decided to issue a formal written warning in the circumstances. The Fourth Warning was issued in the “strongest possible terms.”
As a result of the previous warnings issued to the Applicant, the most recent being the Fourth Warning on 7 July 2021, the Applicant was on notice regarding her driving and specifically her speeding. I am comfortably satisfied that the Applicant had been warned repeatedly of the issue of her speeding. This weighs in favour of a finding that the dismissal was not unfair.
Impact of the size of the Respondent on procedures followed – s.387(f)
The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed approximately 3000 employees. There is no evidence before me, and nor did either party contend, that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
The evidence in this matter indicates that the Respondent had access to the services of an in-house human resources specialist. This factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
There are a number of further matters the Applicant contends are relevant to consideration of whether her dismissal was harsh and thereby unfair. Those matters may be summarised as follows;
· The Applicant took steps to improve her speeding record over the course of 2021 which resulted in demonstrable improvement in her record over the six months prior to her dismissal.
· The final speeding event relied on by the Respondent occurred on 1 November 2021 some four months after the most recent preceding speeding event on 21 June 2021.
· The recorded speeding events (whether challenged or not) represented a small percentage of the total distance travelled by her in her job. She estimated it represented .02% of the total distance travelled in the period 22 March 2021 and 1 July 2021 of 11,981km.
· The Applicant enjoyed her role, was totally focussed on the required business outcomes in her role and she had been dramatically impacted financially by the loss of her job.
· The Applicant claimed that her dismissal was motivated by her workplace injury rather than her driving behaviour.
Dealing with each of the matters raised by the Applicant, I turn firstly to the steps taken by the Applicant to improve her speeding record. I accept that she took steps to comply with the Guidelines and Tool of Trade Policy which included the purchase at her own expense of a Navman device which assisted her control her speeding by providing real time audible and visual warnings of speed limits. I also accept that her performance improvement following the ‘line in the sand’ email and launch of the Guidelines on 12 February 2021 was not insignificant. Speeding events recorded between February 2020 and February 2021 numbered almost 50 while speeding events recorded between 12 February 2021 and her dismissal on 13 January 2022 reduced to 13.
While it is true there was improvement (i.e. a reduction) in the Applicant’s recorded speeding events after 12 February 2021, improvement came off an extremely low performance base. Notwithstanding the improvement, her performance remained at an unacceptable level for the reasons earlier set out having regard to the criticality of safe driving in her role and the four warnings she received. I also note that notwithstanding the improvement I have identified, she was still involved in a motor vehicle accident on 5 August 2021, in which she acknowledged and the Respondent subsequently established she was at fault. Having regard to all of these factors, the Applicant’s recognition of the need to improve and her actual improvement (albeit of a low base) weighs only marginally in favour of a finding that the dismissal was harsh and thereby unfair.
It is correct to say that there was a four month gap between the speeding events of 21 June 2021 and 1 November 2021 which on first blush looks like a dramatic improvement in the Applicant’s performance. That however would be misleading given that Melbourne was in a coronavirus pandemic lockdown between 5 August 2021 and 21 October 2021 during which period the Applicant worked exclusively from home and was not required to drive for work purposes. In fact, between the issuing of the Fourth Warning on 7 July 2021 and the 1 November 2021 speeding event, there was only a 5-6 week period in which she was actually able to drive for work purposes due to the lockdown restrictions. More concerningly, the Applicant recorded a speeding event only a week and a half after Melbourne lockdown restrictions were lifted on 21 October 2021. This speaks to the pattern of the Applicant’s speeding recidivism, which is highlighted by the further recorded speeding event on 27 November 2021, which quite remarkably occurred after the investigation into the 1 November 2021 speeding event was initiated. This weighs against a finding of harshness.
The Applicant’s claim that her speeding events represent a small percentage of her total driving has no merit. That is because the entire focus of the Respondent’s driver behaviour improvement was based on the CEO’s statement in his 12 February 2021 email that “There Is No Such thing as Safe Speeding”, a sentiment the Applicant agreed with in her response to the Show Cause Letter on 7 January 2022. To suggest that her speeding events were only a small percentage of her driving thus excusing the conduct is tantamount to saying it is ok to ignore a critical safety policy so long as you don’t do it very often. Such an argument must be rejected. This weighs against a finding that the dismissal was harsh and thereby unfair.
I accept without hesitation that the Applicant enjoyed and was focussed on her role with the Respondent and that she is likely to be impacted financially by her dismissal. While those factors may weigh in favour of a finding of harshness, I note that the Applicant’s service was only just over 2 years which significantly reduces the weight I place on these factors.
Finally, the Applicant’s claim that her dismissal was motivated by her workplace injury rather than her driving behaviour is rejected. There was simply no evidence advanced that would support that claim and the weight of evidence points overwhelmingly to the Applicant’s history of recorded speeding events being the reason for her dismissal.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?
I have made findings in relation to each matter specified in s.387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust, or unreasonable29.
As set out above, I am satisfied that a valid reason for the Applicant’s dismissal related to her speeding conduct, of which she had been repeatedly warned, has been established and that the dismissal process followed by the Respondent was procedurally fair. The size and capacity of the Respondent did not impact on the procedures that it followed and as such these matters weigh neutrally in my consideration of whether the dismissal was unfair. While other matters raised by the Applicant weigh marginally in favour of a finding that the dismissal was harsh, those matters are not of sufficient weight to displace the weight I attach to the valid reason for dismissal, the process followed by the Respondent and the warnings the Applicant had received in respect of her conduct.
It follows from the above, having considered each of the matters specified in s.387 of the Act, that I am satisfied that the dismissal of the Applicant was not harsh, unjust, or unreasonable. There was a valid reason for the dismissal, the process followed by the Respondent was procedurally fair and no other factors weigh sufficiently in favour of a finding that the dismissal was unfair.
Conclusion
Not being satisfied that the dismissal was harsh, unjust, or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.
The application is dismissed. An Order will be separately issued giving effect to my decision.
DEPUTY PRESIDENT
Appearances:
S Meijer, Applicant.
L Izzo for the Respondent.
Hearing details:
2022.
Melbourne (by Microsoft Teams):
May 23.
[1] Exhibit R2, Witness Statement of Julian Gambaro, dated 17 May 2022 at [21]0, Annexure JG-7, Letter of Employment dated 20 September 2019.
[2] M000083.
[3] Exhibit R2, Witness Statement of Julian Gambaro dated 17 May 2022 at [4].
[4] Exhibit R1, Witness Statement of Rick Jones, dated 17 May 2022, Annexure RJ-1, email from Sarah Moore dated 16 November 2020 re ‘Signposted Speed – Driver Update and Pulse Check.
[5] Exhibit R1, Annexure RJ-2, Driver Safety App and Signposted Speed – FAQs.
[6] Exhibit R1 at [12], Annexure RJ-4, CEO message to staff titled “Drawing a line in the sand – There is no such thing as safe speeding”.
[7] Exhibit R1, Annexure RJ-4, Managing Driver Behaviour Guidelines.
[8] Exhibit R1, Annexure RJ5, ‘#GUARDIANS TEAM MEETING’ presentation.
[9] Ibid.
[10] Exhibit R2 at [15], Annexure JG-2, Managing Driver Behaviour Guidelines – Check In Post Peter West’s Video.
[11] Exhibit R2 at [16], Annexure JG-3, Safe Driving Guidelines.
[12] Exhibit R1, Annexure RJ-6, Training module titled “There is no such thing as safe speeding”.
[13] Exhibit R1 at [19], Annexure RJ-7, Email dated 2 March 2021 from Sarah Moore titled ‘Managing Driver Behaviour Guidelines – What you need to know’.
[14] Exhibit R1 at [20], Annexure RJ-8, Email from Applicant dated 2 March 2021.
[15] Exhibit R1 at [21]-[23], Annexure RJ-9, Guardians Team Meeting Presentation 17 May 2021.
[16] Exhibit R2 at [18]-[19].
[17] Ibid at [20], Annexure JG-6, ‘Our Code of Conduct’.
[18] Exhibit R1, Annexure RJ-2.
[19] Exhibit R1 at [7].
[20] Ibid at Annexure RJ-1, Email dated 16 November 2020 from Sarah Moore titled “Signposted Speed – Driver Update and Pulse Check”.
[21] Ibid.
[22] Exhibit R3, Witness Statement of Cassandra Scott dated 17 May 2022 at[1], [7].
[23] Ibid at [9].
[24] Ibid at [10].
[25] Ibid at [11].
[26] Ibid at [15].
[27] Ibid at [16]-[18].
[28] Ibid at [19].
[29] Ibid at [20].
[30] Exhibit A1, Witness Statement of Susan Meijer at pp 1- 2.
[31] Exhibit R1, Annexure RJ-17.
[32] Exhibit R1 at [42].
[33] Ibid, Annexure RJ17, Email dated 10 May 2021 “Re; Driver Behaviour Alert: Speeding – Susan Meijer”.
[34] Exhibit R3 at [23], Annexure CS-2, Susan Meijer Speeding Events 2020-2021.
[35] Exhibit R3 at [25]-[26].
[36] Ibid, Annexure CS-3, Speed data for Tiff Docherty and Susan Meijer.
[37] Exhibit A1 at pp 2-3.
[38] Exhibit R2 at [69], Annexure JG19, Altona Map.
[39] Exhibit R2 at [71].
[40] Ibid at [72].
[41] Ibid at [73].
[42] Ibid at [74].
[43] Ibid at [75].
[44] Exhibit R2, Annexure JG-19.
[45] Exhibit R2 at [76].
[46] Ibid at [80].
[47] Ibid at [83]
[48] Ibid at [84]-[87], Annexure JG-20, Map of You Yangs Road Little River.
[49] Exhibit R2 at [88]-[91].
[50] Exhibit R2, Annexure JG-20.
[51] Exhibit R2 at [93].
[52] Ibid.
[53] Ibid at [95].
[54] Ibid at [97].
[55] Ibid at [98]-[100].
[56] Ibid at [101].
[57] Ibid, Annexure JG-21, Map of Taradale.
[58] Exhibit R2 at [104].
[59] Exhibit R1 at [36]-[40], Annexure RJ-16, Infringement Notice.
[60] Exhibit R1 at [46]-[47].
[61] Ibid, Annexure RJ-18, Motor vehicle accident report completed 10 August 2021.
[62] Exhibit R4, Email re ‘Driver Behaviour Error Report’, dated 30 November 2021.
[63] Exhibit R1, Annexure RJ-10, Coaching Review dated 21 January 2021.
[64] Exhibit R1, Annexure RJ-11, Email to Applicant dated 12 February 2021 titled ‘Driver Safety’.
[65] Exhibit R1, Annexure RJ-12, Workplace Investigation Outcome letter dated 26 March 2021.
[66] Exhibit R1, Annexure RJ-13, Email to Applicant dated 8 June 2021 titled ‘Driver Safety Report – Incidents as discussed’.
[67] Exhibit R1, Annexure RJ-14, Email from Applicant dated 8 June 2021 ‘Re; Driver Safety Report – Incidents as discussed’.
[68] Exhibit R1, Annexure RJ-15, Workplace Investigation Outcome dated 7 July 2021.
[69] Exhibit R1, Annexure RJ-19, Counselling Matter letter dated 13 September 2021.
[70] Exhibit A1 at p4.
[71] Exhibit R2, Annexure JG-13, Workplace Investigation letter dated 15 November 2021.
[72] Exhibit R2 at [37]-[38], Annexure JG-14, Email from Applicant dated 17 November 2021 titled ‘Driving behaviour incident’.
[73] Exhibit R2 at [39].
[74] Ibid at [40].
[75] Ibid, Annexure JG-19. Email from Applicant dated 19 November 2021 titled “Fwd: Driver Incident”.
[76] Exhibit R2 at [42]-[43].
[77] Exhibit A1 at pp 4-5.
[78] Ibid at [45].
[79] Exhibit A1, Annexure SM-1,Letter from Dr Samuel to Respondent dated 8 December 2021 re ‘Ms Susanne Meijer’.
[80] Ibid, Annexure JG-16, Show Cause – Termination Pending letter dated 4 January 2021.
[81] Exhibit R2 at [46]-[48].
[82] Ibid at [54]-[57].
[83] Ibid, Annexure JG-18, Letter to Applicant dated 13 January 2021 titled ‘Your employment with Coca-Cola Europacific Partners’.
[84] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[85] Ibid.
[86] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[87] Exhibit R1, Annexure RJ-17.
[88] Exhibit R1, Annexure RJ-8.
[89] Exhibit R1, Annexure RJ-6.
[90] Exhibit R1n Annexure RJ-17.
[91] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[92] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[93] Ibid.
[94] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[95] RMIT v Asher (2010) 194 IR 1, 14-15.
[96] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[97] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
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