Vennell and Transport Workers Union v Brambles Australia Ltd trading as Cleanaway

[1996] IRCA 243

DECISION NO:  243/96

C A T C H W O R D S

INDUSTRIAL LAW -TERMINATION OF EMPLOYMENT - VALID REASON - SERIOUS MISCONDUCT - HARSH UNJUST or UNREASONABLE termination - driver allows unlicensed driver to drive vehicle - both dismissed.

Industrial Relations Act 1988 ss170DC, 170DE, 170EDA

CASES:Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.

GEOFFREY DAVID VENNELL
and TRANSPORT WORKERS UNION
-v- BRAMBLES AUSTRALIA LTD trading as CLEANAWAY

No. VI 5725 of 1995

AND

DAVID RAYMOND FENWICK
and TRANSPORT WORKERS UNION
-v- BRAMBLES AUSTRALIA LTD trading as CLEANAWAY

No. VI 5726 of 1995

Before:  Judicial Registrar Murphy
Place:  Melbourne
Date:  31 May 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5725 of 1995

B E T W E E N :

GEOFFREY DAVID VENNELL and
TRANSPORT WORKERS UNION
Applicants

AND

BRAMBLES AUSTRALIA LTD trading as CLEANAWAY
Respondent

AND

VI 5726 of 1995

B E T W E E N :

DAVID RAYMOND FENWICK and
TRANSPORT WORKERS UNION
Applicants

AND

BRAMBLES AUSTRALIA LTD trading as CLEANAWAY
Respondent

MINUTES OF ORDERS

Judicial Registrar Murphy     31 May 1996

THE COURT ORDERS:

1. That each of the applications is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5725 of 1995

B E T W E E N :

GEOFFREY DAVID VENNELL and
TRANSPORT WORKERS UNION
Applicants

AND

BRAMBLES AUSTRALIA LTD trading as CLEANAWAY
Respondent

AND

VI 5726 of 1995

B E T W E E N :

DAVID RAYMOND FENWICK and
TRANSPORT WORKERS UNION
Applicants

AND

BRAMBLES AUSTRALIA LTD trading as CLEANAWAY
Respondent

Before:          Judicial Registrar Murphy
Place:            Melbourne
Date:              31 May 1996

EX-TEMPORE REASONS FOR JUDGMENT

In these proceedings each individual applicant seeks reinstatement to his position with the respondent.  The applicant, Mr Fenwick, was employed as a driver, while the applicant, Mr Vennell, was employed as a driver's assistant.  Mr Vennell does not hold a driver's licence. 

The incident
On 1 November 1995, a supervisor of the respondent, Mr Lever, had occasion to be in the Healesville area at 8 am to check on the performance of one of the respondent's employees.  He was proceeding east on McGregor Avenue, Healesville, looking for one of the respondent's trucks.  As he approached a left-hand turn in the road he observed a truck through a clump of trees about 100 metres away.

He reversed and waited on a corner where the bitumen ceases for the truck to approach him.  The truck approached after executing two bends in the road and stopped beside his company utility.  Mr Vennell emerged from the driver's cabin.  A short conversation ensued.  While they were talking, Mr Lever saw the applicant, Mr Fenwick, lean around from the back of the truck.  He was at a height consistent with being on the step at the back of the truck.  The conversation was short.  Mr Vennell said: “Well, you have got us.  What are you going to do?  Mr Lever said he had no choice but to report the matter.  The men asked whether it was possible for him to let the matter go, but he said no. 

Mr Lever reported the matter to his superiors, including Mr Nuttall, the branch manager.  The yard delegate of the applicant union, Mr Spencer, was advised and a meeting arranged between Mr Nuttall, Mr Spencer, the two applicants and another executive of the respondent.  At the meeting the two applicants were asked by Mr Nuttall what had happened that day.  Mr Vennell responded that he had only moved the truck 40 metres while Mr Fenwick was in the bushes relieving himself.  This version conflicted with what Mr Lever had earlier that morning told Mr Nuttall.

Mr Nuttall directly asked Mr Fenwick whether he was aware that Mr Vennell as driving the truck.  His response was “I might have been, I might not have.”  He gave no definite answer.  Mr Nuttall formed the view that he may have been covering up.  Mr Nuttall also asked Mr Fenwick whether he had removed the keys from the truck, and he said “No”. 

The respondent's representatives adjourned to consider the matter.  Mr Nuttall formed the view that Mr Fenwick should have been aware of his responsibility for his vehicle, and that he had placed the company at serious risk in allowing Mr Vennell to drive the truck.  Mr Nuttall formed the view that both applicants had been guilty of serious misconduct and were to be summarily dismissed.  The men were called in.  Mr Vennell was advised that he was dismissed for driving the truck without a licence.  Mr Fenwick was advised that he was dismissed for knowingly allowing him to drive the vehicle.

In court much of the evidence just mentioned was uncontested.  Mr Lever's evidence about the first conversation was not contested.  In particular, that the account given by Mr Vennell, namely he had only driven the truck a short distance, only emerged at the meeting later that morning.  Mr Lever was also clear in his evidence that he saw the truck some 100 metres away and watched it approach.  Further, he maintained that Mr Fenwick did not emerge from the bushes.  He said that when he saw Mr Fenwick he was on the back step of the truck.  Mr Lever also said that when he saw the truck approach it was travelling at about 20 kilometres per hour.  Mr Fenwick said that the actual distance travelled by it was about 25 metres and that the truck reached that speed between two pick-ups.

Mr Fenwick claimed that the reason he was given for his dismissal was his failure to remove the keys.  He admitted he had received a Drivers Manual (Exhibit R1) but said he had received no detailed instructions in its contents.  He said however that he had read it.  He said he had worked with the applicant, Mr Vennell, for 2 years and that this was the first time that Mr Vennell had driven the truck.  He maintained that it was common practice at the respondent for unlicensed drivers to move trucks around the yard. 

Mr Vennell said that he moved the truck because the position it had been left in by Mr Fenwick was unsafe.  He said he did not consider his actions were putting his job at risk, and claimed that on numerous occasions he had moved trucks to Mr Lever's knowledge from the yard to the workshop.  This involved going on a public road. 

Mr Charlie Spencer, the yard delegate, gave evidence and said that the respondent had a discipline procedure that usually involved three warnings, but that since Mr Nuttall assumed his duties it was not being used.  He agreed that he would not expect the respondent to allow unlicensed drivers to drive its vehicles. 

Findings on the evidence
Except on some limited issues, there was no great dispute in the evidence, Having heard the evidence, I prefer the accounts of Mr Lever and Mr Nuttall of the events of that day.  In particular, I accept that the version of the incident given by the applicants at the meeting was not given to Mr Lever at the first opportunity in the conversation with them on McGregor Avenue.  I therefore prefer to accept his version that he first saw the applicant, Mr Fenwick, on the back step of the truck.  I also accept that Mr Fenwick gave an equivocal response in the meeting as to whether he was aware Mr Vennell was driving the truck.  I also accept the respondent's version that the reason for Mr Fenwick's dismissal was given as knowingly allowing Mr Vennell to drive the vehicle, and not merely failure to remove the keys.

Did the respondent have a valid reason to terminate the applicants' employment? 
It has been said on a number of occasions in the court that the provisions of the Industrial Relations Act (“the Act”) must be applied in a practical manner in a commercial and industrial environment. A valid reason is one which is “sound, defensible or well-founded”:  Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

Under s170EDA(1) of the Act, the respondent carries the onus of proof that it had a valid reason to terminate the applicants' employment. The respondent had in place its Drivers’ Manual. Mr Fenwick admitted he had read it. Mr Nuttall gave evidence that its provisions are strictly enforced. In paragraph 4.2 Rules 2 and 14a it makes explicit reference to the need for vehicles to only be operated by those with licences. Mr Lever observed a breach. The respondent conducted an investigation. The yard delegate of the applicant union was involved. The two applicants were given the opportunity to contribute to the investigation. After an appropriate investigation Mr Fenwick was found in breach of it in allowing Mr Vennell to drive the truck. The respondent then formed the view that its operational requirements were such that each of the applicants should be terminated. The respondent therefore, having formed that view, had a valid reason based on its operational requirements to terminate his services.

It follows from this that I reject Mr Lester's submission that the respondent has failed in its duty to properly instruct Mr Fenwick in relation to the Drivers Manual.  He admitted that he had read it, and it is common sense that a driver of a vehicle such as this must take all reasonable steps to ensure that an unlicensed person not drive it. 

The same position applies in relation to Mr Vennell.  He broke the road traffic laws.  He cannot complain that the respondent, given its obligations to the community at large, formed the view that his conduct in driving the truck unlicensed was unacceptable.  The respondent had a valid reason to terminate his services. 

Harsh, unjust or unreasonable, and procedural fairness
It was only faintly argued that the respondent had failed to accord the applicants' procedural fairness. It did not fail to accord them procedural fairness. They were given an opportunity to explain their versions with the yard delegate present. The requirements of s170DC of the Act had been met.

The applicants carry the onus of proof, under s170EDA(1), that the termination of their employment was harsh, unjust or unreasonable under s170DE(2). Mr Nuttall's evidence that the respondent takes its safety obligations seriously was not contested. The actions of Mr Fenwick in allowing Mr Vennell to drive the truck were serious, in breach of the road traffic laws and in breach of the explicit provisions of the Drivers’ Manual.

It is not a disproportionate response for the respondent to terminate his services in these circumstances.  While such a decision will have an impact on him, that is not decisive.  The response of the respondent, taken after a proper investigation and consideration, was reasonable and one which accords with community values.  The applicant, Mr Fenwick, has not satisfied me that the termination of his employment was harsh, unjust or unreasonable. 

The same applies in relation to Mr Vennell. I reject his evidence that there was any sort of culture within the respondent to allow unlicensed persons to drive vehicles. He must have known that his action breached the respondent’s policies and the road traffic laws. He cannot complain that the respondent treated it seriously. The respondent's response in his case also accords with community values and is not disproportionate to his actions. It is not harsh, unjust or unreasonable. He has not discharged his onus of proof under s170DE(2).

The applicants were dismissed summarily. I am satisfied that, given the way the respondent characterised their actions, they were not required to be given any pay in lieu of notice under s170DB(1) of the Act. Both applicants had been guilty of serious misconduct which, under s170DB(1)(b) of the Act, is “misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period”.  I am satisfied that it is proper to characterise their conduct in this fashion. 

The applicants have not satisfied me of any breach of the Act, and each of their applications must be dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That each of the applications is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:                 
Dated:  31 May 1996

Representative for the Applicants:             Transport Workers Union
Appearing for the Applicants:  Mr M Lester

Appearing for the Respondent:                   Mr David Tulip

Date of hearing:  31 May 1996
Date of judgment:  31 May 1996