Trevor Grant Taudevin and Brambles Australia Limited (ACN 000 164 938)

[1994] IRCA 186

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

NO. QI151 OF 1994

BETWEEN:
  TREVOR GRANT TAUDEVIN

Applicant

AND:
  BRAMBLES AUSTRALIA               LIMITED (A.C.N. 000 164 938)

Respondent

REASONS FOR JUDGMENT

BOULTON J.R.

This is an application seeking the usual relief following upon the termination of employment of the applicant by the respondent. 

At the outset, I need to deal with a submission on behalf of the respondent that I ought to decline to determine the application on the

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basis that there is available to the applicant an adequate alternative remedy within the meaning of s. 170EB of the Industrial Relations Act 1988. The respondent submits that the applicant’s employment was award free. I approach the matter on the basis that before I accede to the respondent’s submission I need to be satisfied that the applicant was not covered by the terms of a federal award.

The exercise to be undertaken involves an interpretation of a definition in the Transport Workers’ Award, 1983, and then a consideration of  whether the duties of the applicant as proved bring him within that definition or not.

It is necessary to shortly say something about the duties of the applicant’s employment.  He took up employment with the respondent as a forklift driver on 2 November 1993.  He was then covered by the terms of the said award.  The respondent specialises in the distribution, warehousing, transport and storage of goods.  Some time prior to early February 1994 the applicant took on the duties of fleet controller, not being formally promoted to that position until about 9 February 1994.  After promotion, his duties were, in general terms, to co-ordinate and control the interstate movements of goods, including the movement of

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shipping containers to and from the shipping wharves and the interstate rail depots.  He was offered the position of fleet controller because the respondent discovered while he was working as a forklift driver that the applicant had significant back damage and was thus considered an inappropriate person to be in charge of a forklift. 

The respondent submitted that for the applicant to come within the terms of the said award (ex. R11), the applicant in his performance of the duties of fleet controller would have to come within the definition of “radio operator”.  “Radio operator” is defined to mean:

“(a)     an employee whose major duties shall be the manning of a              mobile two-way radio system used in the day to day   operation and shall include all instructions appertaining to               the movement of freight”.

On this point only, I accept the applicant’s evidence, at page 27 of the transcript to this effect:

(Did you act as) a radio operator? --- Yes
           How often? ---  Quite often....

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And how much time in the day would that take? --- A lot of your   time.
           ...Can you nominate a figure? --- 70 per cent
           How many hours a day did you work? ---  My average working      day was around 10 hours.
           So you say you were on the radio for 7 hours a day? --- Well, 7      hours a day - radio was calling on/off, on/off, all day long as well     as phones.
           ...Were you simply having access to the radio, or were you              operating it? --- I operated the radio as well as having access to
           the radio.
           And what was the purpose of doing that ? --- To direct the trucks
           for pickups...

I refer also to the evidence of one of the respondent’s witnesses, a Ms. Bryant, Operations Manager of the respondent, at page 65 of the transcript.

In the circumstances, I am not satisfied that the applicant does not come within this definition.  Interestingly, I note that a Mr. Dietrich, a representative of the respondent who swore its affidavit in response to

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the applicant’s application, informed Spender J. on 15 July 1994 that the applicant was covered by a federal award, namely the said award.

Accordingly, I do not uphold the respondent’s submission that I ought to decline to determine the application.

As to the merits of the application, there is a substantial body of evidence which conflicts with the principal assertions relied on by the applicant.  Generally, unless otherwise indicated, I prefer the evidence led on behalf of the respondent to that of the applicant.

I have already provided some background to the applicant’s employment.  The facts as I find them are that the applicant had problems with the paperwork involved in his job.  Some of those problems appear in paragraph 4 of Ms. Bryant’s affidavit (ex. R7) and in paragraph 5 of the affidavit of a John Robert Reddacliff, Dangerous Goods Officer of the respondent (ex. R9).

Ms. Bryant detected further problems with the applicant’s work in about April 1994 when she filled in for him while he was away sick.

On 11 May 1994 there was a meeting between a Mr. Eden, State

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Manager of the respondent, Ms. Bryant and the applicant.  At that meeting there was discussion about points raised in a document titled “Notes in Relation to Poor Performance of Trevor Taudevin” (ex. A2).  The applicant commented he did not feel comfortable in the job nor did he feel as though he were capable of performing it properly.  However, he indicated he wanted to continue in the job, there being no other positions with the respondent which he might fill.  The applicant was given the opportunity to answer each of the matters the subject of ex. A2.  Mr. Eden instructed Ms. Bryant to supervise the applicant particularly closely in the weeks after 11 May 1994, and to report to him about the applicant’s progress.

The applicant was also warned in writing that “should there be any further failings on your part to meet the performance standards expected, your employment will be immediately terminated......” (ex. A3).

I find that the level of supervision and training (including training in the handling of dangerous goods) provided by the respondent to the applicant during the course of his employment was adequate.

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On 17 May 1994 the applicant processed paperwork relating to the pick up of a shipping container from Fisherman’s Island.  The paperwork (ex. A4) accompanying the container was ambiguous, and the applicant sought the advice of a Mr. Caton, Warehouse and Distribution Manager of the respondent.  Mr. Caton noted that a code appearing on the document in relation to the goods stated “3.3 - Flamable (sic) Liquids Flash Point Above + 23C”.  He pointed out to the applicant that the 3.3 in that code referred to combustible liquids which were not classified as dangerous goods but told him that flammable liquids which have a flash point above 23°C were classed as dangerous goods, and clearly the shipping document was inconsistent and incorrect.  Mr. Caton also said to the applicant, words to the effect of :  “something’s not right with the paperwork here, you should check it out”.

Mr. Caton also swore that during the time he had been employed with the respondent he had noticed that shipping documents were quite often incorrect.  He had dealt with them before and knew that the applicant had also dealt before with incorrect shipping documents.  The standard method of checking shipping documents is to telephone the shipping company or the client (or both) to ascertain the exact nature of the goods in the container concerned.  Mr. Caton has also been the fleet controller for the respondent.

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I reject the applicant’s evidence that Mr. Caton told him the goods were non-dangerous.

The applicant did not further check the position, as suggested by Mr. Caton.  The next morning he arranged for a sub-contract driver to pick up the subject container.  He gave the driver the paperwork, ex. A4.  Later that morning the driver contacted him and told him the container had class 3 stickers on it (which indicated dangerous goods).  The applicant was aware that the driver would then be armed with a document titled “handover agreement” (ex. R3) given to him when he arrived to pick up the container.  The applicant did not ask the driver to look at ex. R3 and tell him what was written there (in order to assist him to discover the true nature of the goods in the container).  Instead, he instructed the driver to remove the stickers from the container.  The container was then transported minus the stickers.

The removal of the stickers came to the attention of the Department of Transport.  One of its officers told Mr. Reddacliff that the container was checked, and found to be carrying a class 3 flammable liquid (a dangerous good).

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The applicant was suspended from duties on full pay that day, pending an investigation by the respondent.  Representatives of the respondent met with the applicant twice on 18 May 1994, to discuss these recent events.  The respondent obtained statements from relevant witnesses, including Mr. Caton, on or before 24 May 1994 and provided those to the applicant before he presented his own version of events, after meeting with Mr. Eden and Mr. Reddacliff on 25 May 1994.  At that meeting the applicant was given the opportunity to discuss the events of 17 and 18 May 1994.

On 27 May 1994 a decision was made to terminate the applicant’s employment.  The applicant, Mr. Reddacliff and Ms. Bryant met on 30 May 1994 at which time the applicant was advised of the decision to terminate his employment, and presented with a letter dated 30 May 1994 (an attachment to ex. R4).  The applicant received one month’s pay in lieu of notice.

The representative of the respondent Mr. Dietrich, to whom I have earlier made reference, swore an affidavit filed on 27 June 1994 in which he described the reason for the respondent’s decision to terminate the applicant’s employment as being that the applicant’s actions on 18 May 1994 were of such a serious nature as to constitute

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serious and wilful misconduct.  I do not consider the applicant’s conduct to amount to this.  What the respondent has proved, however, in my view is that there was a valid reason (for the termination) connected with the applicant’s capacity to properly perform the duties of his job as fleet controller, of which the events of 17 and 18 May 1994 were the final straw.  I am not convinced that the applicant’s termination was harsh, unjust or unreasonable, or that his termination was vitiated for any other cause.

In my opinion, the termination of the applicant’s employment did not contravene ss.170DE(1) of the Act. 

It remains for me to deal with three other matters.  First, in the event that I ruled in favour of the respondent’s submission concerning adequate alternative remedy, the applicant asked me to make an order for costs against Mr. Dietrich personally on account of his submissions before Spender J. on 15 July 1994.  I need no longer to consider this matter, having ruled against the respondent on the question of adequate alternative remedy.

Secondly, the applicant asked me to make an order for costs against the respondent on account of its cavalier attitude to discovery.  I reserved

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the question of costs on both 27 September 1994 and 15 November 1994, having on the earlier of those dates ordered the respondent to make discovery on oath and on the later date in respect of a notice of motion brought by the applicant on account of further non-compliance by the respondent on the matter of discovery.  I consider that I have no power to make the orders sought against the respondent.

Thirdly, I note that the transcript of evidence wrongly records ex. R12 as being Print K2858 - Order of Commissioner Maher dated 5.6.92 whereas ex. R12 is a document from the Queensland Industrial Relations Commission headed “Trevor Grant Taudevin (NO. B590 of 1994) Directions Order dated 27 June 1994”.

The order I make is that the application be dismissed.

This and the preceding TEN (10) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.

........ ........ ........ ........ ........ ........ ........ ........ ......
JUDICIAL REGISTRAR

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DATED:  31 January 1995

Counsel for the applicant:  Mr. Hardin

Solicitors for the applicant:  J.R. Manners

Counsel for the respondent:  Mr. G. Martin

Solicitors for the respondent:  Freehill, Hollingdale & Page

Dates of hearing:  13 & 15 December 1994
Date of judgment:       31  January 1995