Tu Noanoa v Linfox Pty Ltd - [2011] FWA 306

Note: An appeal pursuant to s.604 (C2012/2676) was lodged against this decision - refer to Full Bench decision dated 12 March 2012 [[2012] FWAFB 2008] for result of appeal.

[2011] FWA 306

FAIR WORK AUSTRALIA

DECISION

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

Mr Tu Noanoa
v
Linfox Pty Ltd
(U2010/10878)

COMMISSIONER CAMBRIDGE

SYDNEY, 18 JANUARY 2011

Unfair dismissal - misconduct - falsification of daily worksheet - deliberate attempt to conceal breach of driver fatigue management regulation - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 22 July 2010. The application was made on behalf of Tu Movere Noanoa (the applicant), and the respondent employer was identified to be Linfox Pty Ltd (the employer).

[2] The application stated that the date of the applicant’s dismissal was 18 July 2010. Consequently the application appeared to have been made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] However, the application included a letter of dismissal dated 7 July 2010 and the evidence has verified that the dismissal of the applicant took effect from 7 July 2010. The applicant received the letter of dismissal by post on or around 18 July 2010, but he was unambiguously informed of the dismissal at the time that it took effect, 7 July 2010.

[4] The application was made by the Transport Workers Union of Australia (the TWU), acting as the representative of the applicant. Therefore it was curious that the application document stated a date for the dismissal which was plainly wrong but which conveniently put the lodgement of the claim within the legislative time limit. No issue was taken with the erroneous date of dismissal stated in the application and the matter has progressed as if it had been lodged within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[5] Conciliation of the claim was unsuccessful and the matter proceeded to arbitration before Fair Work Australia (FWA) in a Hearing conducted in Sydney on 4 November 2010. The evidence was finalised during the Hearing and at the request of the Parties, a timetable for the provision of final submissions was established which included that the applicant’s final material be submitted by 13 December 2010.

[6] At the Hearing the applicant was represented by Mr N McIntosh, a legal officer from the TWU. The applicant was the only witness called in support of the claim. The employer was represented by Mr L D’Apice, who was assisted by Ms G Neill. The employer adduced evidence from two witnesses, Mr Andrew Michael Lawrence and Ms Nina Michelle Russell, both of whom were managers of the employer.

Factual Background

[7] The applicant had worked for the employer for about 10 years in total. The applicant was initially employed as a casual Truck Driver and…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Tu Noanoa v Linfox Pty Ltd

Details

AGLC: Mr Tu Noanoa v Linfox Pty Ltd [2011] FWA 306
Case: [2011] FWA 306
Decision Date: 18 JANUARY 2011

CaseChat Overview and Summary

In Tu Noanoa v Linfox Pty Ltd, the applicant sought relief for an alleged unfair dismissal. The applicant, a truck driver, was dismissed from his employment by Linfox Pty Ltd after being found to have falsified his daily worksheet to conceal a breach of driver fatigue regulations. The matter was heard in the Fair Work Commission. The central issue before the Commission was whether the applicant's dismissal was unfair within the meaning of section 383 of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the dismissal was harsh, unjust, or unreasonable, and if there were valid reasons related to the applicant's conduct associated with the workplace.

The Commission found that the applicant's actions constituted serious misconduct. By deliberately falsifying his daily worksheet, the applicant had attempted to conceal a breach of safety regulations designed to protect both himself and the public. The Commission was satisfied that the employer had valid reasons related to the workplace for the dismissal, and that the penalty of termination was not disproportionate to the seriousness of the misconduct. Given the high standard of care required in industries involving heavy vehicles and the potential for significant harm if safety regulations were not followed, the Commission concluded that the dismissal was neither harsh, unjust, or unreasonable.

The Commission dismissed the applicant's claim for unfair dismissal, holding that the employer had acted reasonably in terminating the applicant's employment. The Commission did not make any orders regarding reinstatement or compensation, as it found the dismissal to be justified.

Orders