Wissell v Twentieth Super Pace Nominees Pty Ltd
[2019] FWC 7539
•1 NOVEMBER 2019
| [2019] FWC 7539 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394—Unfair dismissal
Wayne Wissell
v
Twentieth Super Pace Nominees Pty Ltd T/A SCT Logistics
(U2019/6597)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 1 NOVEMBER 2019 |
Application for an unfair dismissal remedy – truck driver – summary dismissal – gross negligence – valid reason – procedural fairness – whether dismissal harsh – singular incident of negligence – personal impact of dismissal – dismissal not harsh, unjust or unreasonable – application dismissed
[1] On 14 June 2019 Mr Wayne Wissell (Mr Wissell or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his summary dismissal by Twentieth Super Pace Nominees Pty Ltd T/A SCT Logistics (SCT, the Respondent or the employer). He claims to have been unfairly dismissed on 30 May 2019.
[2] At the date of dismissal Mr Wissell was employed by SCT as a full-time truck driver under the SCT Logistics (Penfield Operations) Enterprise Agreement 2015.
[3] Mr Wissell had five years and six months of service with SCT until he was dismissed on 30 May 2019.
[4] Mr Wissell claims his dismissal was harsh, unjust or unreasonable. He seeks an order for compensation. He does not seek reinstatement.
[5] SCT oppose the application. It says it terminated Mr Wissell’s employment summarily on the ground of serious misconduct on 30 May 2019. SCT contend the dismissal was not harsh, unjust or unreasonable, and no issue of remedy arises.
[6] No jurisdictional issues arise in determining this matter. Mr Wissell was protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.
[7] Conciliation of the application by a Commission-appointed conciliator occurred on 22 July 2019. It did not resolve. The application was referred to me for hearing and determination.
[8] On 2 August 2019 I issued directions concerning case management.
[9] The issue of representation was contested. On 23 August 2019 I granted permission for SCT to be represented by a legal practitioner. 1
[10] A further interlocutory issue arose concerning the attendance of a witness (Mr Holmes), a truck driver and training assessor employed by SCT. On 30 August 2019 SCT made an application for Mr Holmes to be ordered to attend the hearing. On 5 September 2019 SCT advised that Mr Holmes had agreed to voluntarily participate in proceedings. The interlocutory application was not further pressed. I granted leave for a late witness statement to be filed by Mr Holmes. Mr Holmes attended the hearing voluntarily.
[11] I heard the matter (merits and remedy) by determinative conference in Adelaide on 10 and 11 October 2019.
[12] Mr Wissell was represented by a legally qualified industrial officer of the Transport Workers Union (TWU), Mr Boughey, who was assisted by a senior official Mr Lewis. SCT was represented by Mr Broadbent, a legal practitioner.
The Evidence
[13] I received oral evidence, written statements, documents (including those produced in consequence of directions) and outlines of submissions from both Mr Wissell and SCT.
[14] I heard evidence from four persons:
• Wayne Wissell (Applicant);
• Maxwell Bourke (South Australian State Manager, SCT);
• Ryan Jenkins (Operations Manager, SCT); and
• Craig Holmes (Driver and Training Assessor, SCT).
[15] It is appropriate to mention two items of evidence. Mr Wissell submitted a report dated 8 October 2019 from his treating medical practitioner Dr Johannes van den Bos. 2 Dr Van den Bos was not called to give evidence. SCT filed an undated statement from a former Transport Manager, Mr Peter Myers.3 Mr Myers had left SCT’s employ by the date of hearing. SCT did not call Mr Myers. Upon receiving these materials, I advised the parties that failure to call these persons would affect the weight to be attached to such material. Both the statements of Dr Van den Bos and Mr Myers include content that is in dispute. Given that, I give no weight to either statement except where they refer to otherwise agreed or corroborated facts.
[16] Some facts concerning the alleged misconduct are in dispute, as are some facts concerning the employer’s disciplinary investigation. Issues of credit are relevant.
[17] Mr Wissell gave evidence sincerely, but a significant degree of caution is required. He was quarrelsome under cross examination, and portrayed a degree of selectiveness and dismissiveness. His evidence shifted ground leading to inconsistencies. I conclude that material portions of Mr Wissell’s evidence are a reconstruction rather than recall. Some assertions made late in the hearing were not disclosed in his earlier witness statement or evidence in chief.
[18] Mr Burke was a conscientious witness willing to make reasonable concessions whilst holding ground under cross examination. His evidence was generally reliable.
[19] Mr Jenkins was an impressive witness who gave evidence calmly without emotion or embellishment. He was a witness of credit.
[20] Mr Holmes’s evidence requires some degree of caution. He was a witness of relatively few words and short answers. He was firm and consistent in his evidence about what had occurred and in particular what he had said to Mr Wissell whilst he conducted an induction on 4 April 2019. He was however evasive about why he had subsequently refused to sign a statement during the employer’s investigation concerning that very induction. That evasiveness, whilst not tainting Mr Holmes evidence as a whole, leads me to apply particular scrutiny to it notwithstanding its otherwise plausibility.
[21] Where relevant to my decision, I make findings based on the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating documentary evidence and the inherent plausibility of versions of events.
[22] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence or surrounding circumstances, or where it was uncontested or inherently plausible.
The Facts
[23] I make the following findings:
Background
[24] SCT is a large national business in the transport and logistics industry, employing approximately 800 persons, many of whom drive prime mover tucks in urban and regional areas.
[25] Its operations in South Australia are based at Penfield in Adelaide’s northern suburbs.
[26] In March 2019 SCT took possession of fifteen prime movers leased from Mercedes on five year leases. Each carried a warranty for that period and a market value in excess of AUD$200,000.
[27] The new prime movers were progressively commissioned into service in March and April 2019.
[28] Mr Wissell commenced work with SCT in December 2013. At the date of dismissal he had been employed for five and a half years. He is 62 years of age. He holds requisite heavy vehicle licenses. He has had 25 years of experience driving heavy vehicles in the industry, including as an owner-driver. He lives in Adelaide. He worked for SCT as a full time employee.
[29] In 2015 Mr Wissell sustained a work related injury. After a period of absence he returned on light duties. Once certified fit to resume normal duties he was allocated a daily run of two return trips from Outer Harbour in Adelaide’s north-west to Monarto east of Adelaide. It entailed 11 or 12 hours of work each day. The run suited both Mr Wissell and SCT. Until dismissed, that was his daily run.
Induction
[30] Prior to April 2019 Mr Wissell had been driving a Kenworth day cab. He had earlier driven Volvo and Western Star trucks and, whilst an owner-driver, a Freightliner truck.
[31] The new Mercedes Benz Actros Prime Movers contained upgraded technology and systems requiring SCT’s drivers to be inducted in the new vehicles. Inductions occurred on a one-to-one basis in March and April 2019 between an individual driver and an assessor. Mr Holmes, one of SCT’s drivers, was also an assessor. He had undertaken training on the new vehicle with Mercedes in March 2019 and was tasked by SCT to induct other drivers. Whilst the vehicles contained new features and technology, Mr Holmes did not consider them particularly complex from a driver’s perspective.
[32] The inductions conducted by Mr Holmes (under the authority of the then Transport Manager, Mr Myers) had no particular formality. They were conducted orally in the depot yard and took between 20 to 30 minutes. The inductions typically involved Mr Holmes familiarising each driver with the vehicle’s main features, its specifications and the manufacturer’s requirements especially where they may be new or differ from existing SCT vehicles. They also typically included Mr Holmes sitting in the passenger seat of the cabin whilst each driver drove the new vehicle a short distance into local streets (and back) in order to satisfy Mr Holmes that each driver could handle the vehicle.
[33] No paperwork was exchanged between Mr Holmes and the driver at the time of induction, though mention was made of the vehicle’s handbook and its location in the truck. At the completion of the induction each inducted driver was asked to sign an Induction Acknowledgment Sheet.
[34] Mr Wissell was inducted by Mr Holmes at the depot on 4 April 2019.
[35] After the induction, Mr Wissell signed and dated the Induction Acknowledgment Sheet as follows: 4
“I have received induction and familiarisation to the new Mercedes Prime Mover and I am confident to move into the new vehicle.
Name | Received copy and understand changes | Signature | Date |
[36] It is not in dispute that the typical features of the induction mentioned above applied to Mr Wissell’s induction. However, on two fundamental issues the evidence differs:
• Mr Holmes says that during each induction, including with Mr Wissell, he unlatched the bonnet of the truck and showed the engine block to each driver. Mr Wissell denies that this occurred; and
• Mr Holmes says that during each induction, including with Mr Wissell, whilst the engine block was being shown he verbally instructed each driver that, based on instructions from Mercedes and with one exception, they were not to top-up any fluids in the engine because specific Mercedes products were required to be used, and that an off-site contractor had been engaged for that purpose. The exception was that drivers were permitted to top-up the windscreen washer reservoir which could be filled with water. Mr Wissell denied that any advice or instruction along these lines was given to him.
[37] I make a finding on these disputed matters in considering whether a valid reason for dismissal existed.
[38] Mr Jenkins, SCT’s Operations Manager, also had cause to speak to Mr Wissell about the new trucks. Believing that Mr Wissell had previously smoked (contrary to policy) whilst driving company trucks, Mr Jenkins gave Mr Wissell a ‘heads-up’ that strict application of the no-smoking policy would be applied to the new trucks, given the importance of Mercedes being advised of any irregularity or use contrary to the manufacturer’s requirements.
Pre-trip procedures
[39] Both prior and subsequent to the commissioning of the Mercedes Prime Movers, SCT drivers were required to adhere to established procedures set out in a Daily Driver Runsheet. 5
[40] The procedures included a mandatory pre-trip inspection of the vehicle and trailer by each driver. It read:
“• PRE TRIP INSPECTION – Under Chain of Responsibility legislation it is a requirement to inspect your vehicle and trailer prior to commencing work. It is essential you inspect the OIL, WATER, FUEL, WHEELS, TYRES and LIGHTS. Any issues can be noted on the comments field. It is an SCT requirement that you complete the FAULT/DEFECT NOTIFICATION FORM to advise of any issues and hand in the form to the office at the completion of your work day. If the vehicle or trailer requires immediate attention and is not roadworthy you MUST notify relevant employees.”
[41] The Daily Driver Runsheet was not modified upon the use by SCT of the Mercedes Prime Movers.
Events of Tuesday 21 May 2019
[42] Mr Wissell had been driving one of the new Mercedes Prime Mover for about three weeks on his regular run. He was scheduled to do so again on 21 May 2019.
[43] His shift commenced from the depot at about 6:00am. He conducted a pre-trip inspection. After switching on the engine, he noticed the warning indicator for coolant was illuminated on his dash.
[44] He drove the truck out of the depot. Some 20 minutes later, whilst driving along the Port River Expressway at Dry Creek, he stopped at a service station.
[45] Whether the coolant light remained lit during this trip is the subject of disputed evidence. Mr Wissell inferred that it was lit during the trip, but later in his evidence suggested that it was only lit in the period before he drove out of the depot. I make a finding on this when considering whether a valid reason for dismissal existed.
[46] The purpose of stopping at the service station was also the subject of disputed evidence. Mr Wissell suggested that it was to top-up the coolant in the engine’s radiator. Later in his evidence he claimed that he was only intending to insert his finger in the radiator to test the coolant level. 6 I make a finding on this when considering whether a valid reason for dismissal existed.
[47] What is not in dispute is what happened at the service station.
[48] Mr Wissell parked his truck under a canopy high enough for semi-trailers that was illuminated by overhead electric lights.
[49] He opened the engine bonnet.
[50] He started opening the radiator cap. It was pressurised. He released the cap to a level that allowed pressure to escape, but did not remove it.
[51] Whilst pressure from the radiator was being released, he decided to top-up the windscreen washer reservoir with water. He obtained a container of water based fluid from the service station.
[52] He returned to the truck. He placed his hand into the engine bay along the side of the engine where he believed, from past knowledge, the fill point for the windscreen washer reservoir would be positioned. He removed a cap. He then started pouring water based fluid from the container into the opening where he had removed the cap.
[53] Unknown to Mr Wissell, he had removed the cap to the oil sump. He was pouring water into that part of the engine made only to take oil.
[54] After wondering why an unusual amount of water was being consumed, he stopped and looked more closely. He consulted the truck manual. He realised that he had poured a number of litres of water into the engine oil sump, not into the windscreen washer reservoir.
[55] Mr Wissell called the depot. He spoke to the transport allocator (Mr Sommers) and then the Transport Manager, Mr Myers. He told them what he had done. He was told to call Mercedes and seek their instruction. He did so.
[56] At cost to SCT, Mercedes immediately sent a technician to the service station. The technician arrived within 40 minutes. The technician assessed the situation and drained the oil sump of the combined oil and water mixture. He then replenished the sump with oil. He considered that the truck could be driven (and it was).
[57] An SCT supervisor and a replacement driver arrived at the service station. Mr Wissell was driven back to the depot by the supervisor. The truck was left with the Mercedes technician and the replacement driver.
[58] Upon arrival at the depot Mr Wissell was taken to SCT’s office where he was asked to make a statement. He did so in the presence of Mr Myers and a human resources and safety officer, Ms Hook.
[59] Notes of the 21 May 2019 meeting are in evidence. 7
[60] Mr Wissell made admissions and gave certain explanations. He said that he knew he had “fucked up”. He said that he stopped at the service station as the coolant light had been on and that he intended to top-up the coolant. In explanation he said that:
• he could have just kept driving the truck and not told the company but he chose to make contact and disclose the incident;
• he did not recognise or know of the international symbol for oil that was marked on the top of the oil cap, and suggested better labelling;
• he had known washer reservoirs to have always been on the side of the engine bay he removed the cap from and believed this to be recall from his “previous familiarisation” of this truck; and
• the truck was new to him.
[61] Mr Wissell told the meeting that he was stressed and incidents like this were affecting his stress levels.
[62] Mr Wissell was stood down with pay pending an investigation.
[63] The matter was reported to Mr Bourke, the State Manager. At Mr Bourke’s suggestion, Mr Holmes was approached by Mr Myers. They had a brief discussion in the yard. Mr Myers asked Mr Holmes if he (Mr Holmes) had shown the engine bay to Mr Wissell during his induction and if he had instructed Mr Wissell about drivers not topping-up fluids except the windscreen washer reservoir. Mr Holmes told Mr Myers that he had done so and that he believed Mr Wissell had understood this at the time.
[64] SCT contacted Mercedes (Daimler) concerning the warranty on the truck in light of the incident. Mercedes advised that they could not be specific about the status of the warranty. They indicated that the warranty had not been automatically voided but that it may be voidable at a future time at Mercedes’ discretion in light of the incident, but that as time passed and given that the truck remained road-worthy it may be harder for Mercedes to directly link a future warranty claim for engine damage to the incident.
[65] Mr Myers typed the notes of his brief discussion with Mr Holmes. Shortly thereafter he asked Mr Holmes to sign a record of the discussion. Mr Holmes declined. The notes were retained as part of the investigation and marked “unwilling to sign”. They are in evidence. 8
The disciplinary process and dismissal
[66] The discussions with Mr Wissell, Mr Holmes and Mercedes were reported to Mr Bourke. Mr Bourke also accessed the meeting notes of 21 May 2019, the written (but unsigned) record of conversation between Mr Myers and Mr Holmes and the Induction Acknowledgment Sheet.
[67] Mr Bourke considered that a disciplinary process was warranted. On 24 May 2019 he wrote to Mr Wissell 9 advising that an investigation had been conducted, that his conduct was contrary to an instruction, was an unacceptable “disregard and level of carelessness” that “may amount to serious misconduct” and that the company wished to meet Mr Wissell (with a support person if needed) on 28 May 2019. The letter went on to say:
“SCT has not formed any preconceived ideas in terms of outcome, but inform you that if it is satisfied your conduct amounts to serious misconduct a decision will be taken in terms of suitable disciplinary action which may involve termination of employment.”
[68] The meeting was subsequently rescheduled to 30 May 2019. Mr Wissell attended with a support person, Mr Lewis of the TWU. Mr Bourke and Mr Jenkins were in attendance. Notes of the meeting are in evidence. 10
[69] Mr Bourke sought to hear directly from Mr Wissell his version of events, and explanation. Mr Bourke distributed and read from the meeting notes of 21 May 2019. Mr Wissell agreed with that record. He asked questions of Mr Wissell about what he had said on 21 May 2019, and sought clarification and further explanations. Further explanations given by Mr Wissell were:
• That it was dark at 6.20am on 21 May 2019 and the electric lighting above the truck caused shadowing over the engine block from the lifted bonnet;
• That he didn’t see the oil symbol on the cap;
• That he (Mr Wissell) was in a rush to get to his pick-up destination that morning and didn’t look closely at the labels on the caps;
• That the induction from Mr Holmes was brief and he had to learn about the truck ‘on the run’;
• That the induction did not lift the bonnet or show the fill points of the engine;
• That the induction did not instruct Mr Wissell to raise issues with Mercedes rather than deal with them himself; and
• His actions were not deliberate or intentional and would not happen again.
[70] Mr Bourke advised Mr Wissell that Mercedes technicians had advised the company that about 4.5 litres of water had been poured into the sump (not 2 litres as claimed by Mr Wissell) and that had the truck been started and driven off without the sump being drained (as Mr Wissell had suggested he could have done but chose not to) it would have “been lucky to make it five minutes up the road”. Mr Bourke told Mr Wissell that the warranty on the truck had been compromised.
[71] Mr Jenkins claimed that he had spoken to another driver (Mr Hutchinson) who had been inducted by Mr Holmes and that their version of their induction was different to Mr Wissell’s version (Mr Bourke had made a similar enquiry of a driver, Mr Meertens). Mr Wissell responded that he was telling the truth about his induction.
[72] Mr Bourke asked Mr Wissell and Mr Lewis to wait outside while he made a decision.
[73] Mr Bourke discussed the matter with Mr Jenkins. Both Mr Jenkins and Mr Bourke concluded that: 11
• Mr Wissell had breached an instruction not to touch the engine coolant;
• Mr Wissell had poured water into the oil sump;
• Mr Wissell had given contradictory and inadequate explanations for doing so; and
• There was a direct financial cost to the company from his actions plus a compromised warranty for the vehicle resulting in a significant future financial risk.
[74] Both Mr Bourke and Mr Jenkins concluded that Mr Wissell’s conduct was serious misconduct and that termination was the appropriate sanction. They also formed the view that whilst they did not expect Mr Wissell would put water in the oil again, given Mr Wissell’s responses and explanations they could not have faith in Mr Wissell not disobeying other instructions or being careless. 12
[75] Mr Wissell and Mr Lewis were called back into the meeting. Mr Bourke advised that Mr Wissell was summarily dismissed for serious misconduct. Mr Lewis protested that the sanction was “too harsh” given that the warranty was only compromised not voided.
[76] Mr Bourke indicated that the decision stood.
[77] Mr Bourke confirmed the summary dismissal in writing on 5 June 2019.
[78] Mr Wissell commenced these proceedings on 14 June 2019.
Consideration
[79] The issue for determination is simply put: was Mr Wissell’s dismissal “harsh, unjust or unreasonable” having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?
[80] I am under a duty to consider each of the criteria in section 387 of the FW Act, 13 and now do so. In so doing, I take into account all of the evidence and submissions before me.
[81] Section 387 of the FW Act provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.”
Valid Reason (section 387(a))
[82] An employer must have a valid reason for the dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” 14 and should not be “capricious, fanciful, spiteful or prejudiced.”15
[83] In a conduct-based dismissal 16 the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it.17
[84] Where an employee is dismissed for misconduct, as in this case, an evidentiary onus rests on an employer to establish that on the balance of probabilities the misconduct occurred. 18
[85] It is also well settled that where, as in this case, an employer dismisses for serious misconduct, the standard of proof requires “a proper level of satisfaction” 19that the conduct did in fact occur having regard to the seriousness of the allegations. This is commonly referred to as the Briginshaw standard20. This requires more than mere satisfaction that it is more likely than not that conduct occurred. Rather it requires a proper degree of satisfaction that the conduct did in fact occur.
[86] The employer’s central allegation of misconduct is that Mr Wissell breached his duty to exercise care and diligence in the performance of work by pouring water into the oil sump of the Mercedes Prime Mover on 21 May 2019.
[87] The employer’s case goes beyond this central allegation. The employer advances three subsidiary and related allegations:
• That Mr Wissell acted contrary to his duty by allegedly driving the truck out of the depot on 21 May 2019 with the coolant warning light illuminated;
• That Mr Wissell acted contrary to his duty by allegedly stopping the truck on 21 May 2019 for the purposes of topping-up the radiator with coolant; and
• That Mr Wissell acted contrary to his duty by allegedly giving misleading or inconsistent responses to explain his conduct or intentions on 21 May 2019, which eroded the employer’s trust and confidence in him.
[88] I now consider whether these alleged breaches of duty occurred and, if so, whether they collectively or individually constitute a valid reason for dismissal.
Pouring water into the oil sump
[89] I have made findings on Mr Wissell’s conduct at the service station.
[90] It is not in dispute that Mr Wissell poured a considerable quantity of water from a container he was holding into the oil sump of the truck. Whether that quantity was two litres (as Mr Wissell estimated during the investigation) or four and a half litres (as the employer had been advised by Mercedes) is not material to this decision. On either measure the quantity was significant, evidenced by the fact that it was only because of the lengthy time being taken to pour the water that caused Mr Wissell to re-assess what he was doing.
[91] Nor is it in dispute that Mr Wissell did not do so intentionally. He did so mistakenly. He was intending to pour the water into the windscreen fluid reservoir, not the oil sump.
[92] That notwithstanding, the evidence before me leads to the conclusion that this was an act of gross negligence and recklessness. Whilst unintentional and in that respect a mistake, there are circumstances which render the conduct serious misconduct. These are:
• Mr Wissell was an experienced driver (25 years of experience). Experienced drivers are reasonably expected to apply their experience to avoid or mitigate against error or mistake, including on basic matters such as topping-up windscreen fluid via the correct receptacle;
• On Mr Wissell’s own evidence, he placed his hand into the engine bay along the side of the engine where he believed, from his past knowledge of trucks, that the fill point for the windscreen fluid reservoir would be positioned. In doing so, he acted on an assumption that the cap he removed to expose the fluid entry point was the correct reservoir. In evidence he said:
“I knew the windscreen washer was in the front of the truck. Where exactly I did not know. I just assumed, which was an error in judgment, that that was the receptacle you filled.” 21
“I just assumed that was the right receptacle.” 22
“It was just a general assumption with trucks.” 23
“I couldn’t find anything else so that’s what I filled.” 24
“I thought I knew where the fill points were.” 25
• His further evidence was that he didn’t look or didn’t look closely at what he was doing 26;
• The cap Mr Wissell removed had embossed on it the international symbol for oil. Had Mr Wissell been paying attention, that symbol would have alerted Mr Wissell to the error he was making; and
• The vehicle was new. Mr Wissell had only been driving the truck for three weeks. He believed that his induction had been brief and inadequate. His evidence was that this was the first time he had lifted the bonnet of the truck to do a task in the engine block. 27 His evidence was that the truck was different from anything he had ever driven.28 Making an assumption about the location of a fluid receptacle in an engine in those circumstances adds to the degree of recklessness.
[93] I conclude that it was extraordinarily foolish (as well as unsafe) for a driver, let alone an experienced driver, to place their hands into an engine block to perform a task without looking or not looking attentively at what they were doing under the engine bonnet. I further conclude that there was no reasonable basis on which Mr Wissell made the assumptions he did, and that doing so in the circumstances was grossly negligent and reckless.
[94] Mr Wissell reported the incident promptly to SCT. This is a material issue in mitigation. He did not try to cover-up the incident by continuing his journey as if nothing had happened.
[95] The prompt reporting of the incident was conduct consistent with the incident being unintentional. It allowed a Mercedes technician to attend within the hour and drain oil from the sump and replace it with fresh oil without the combined water and oil moving from the sump into the mechanics of a running engine. Whilst there was direct cost to the employer for the call out by Mercedes ($1,656.20) 29 and disruption to client deliveries that day and to SCT staff resources, the prompt reporting had the effect of providing an opportunity for SCT to minimise the cost and damage, and to not have a $2000,000 leased asset rendered un-roadworthy.
[96] I take this into account. However, it was conduct after an already completed act of negligence and recklessness. It is conduct in the nature of remediation of the breach of duty, not mitigation of the incident itself.
[97] I do not consider Mr Wissell’s decision to not continue his journey as if nothing had happened to be mitigation. Had he done so this would have been a separate and independent act of recklessness (if not deceit) that may have rendered the engine beyond repair. Not engaging in a subsequent act of recklessness or cover-up does not mitigate an already completed act of negligence and recklessness.
[98] Aside from not having intended to open the oil sump cap and having promptly reported the incident, there is very little else before me that mitigates the degree of negligence and recklessness. Mr Wissell refers to inadequate lighting. I accept that it was dark outside, in Adelaide at 6.20am in late autumn. However, Mr Wissell had parked under an illuminated canopy. It is possible that the raised bonnet caused shadowing over the engine block, though I make no finding to that effect as I have insufficient evidence of the positioning of the truck vis-a-vis the lighting. I need not do so because, if there was shadowing, that was more reason for Mr Wissell to not just look, but look more carefully, at what he was doing. Mr Wissell’s claim of darkness, shadowing or poor lighting does not mitigate the seriousness of his conduct.
[99] I take into account that Mr Wissell was permitted to top-up the windscreen fluid reservoir (as, for reasons that follow, I find that this was an exception to the instruction that he and other drivers received not to place fluids in the engine of these prime movers). However, being permitted to do something in the course of employment does not mitigate the seriousness of doing it negligently.
[100] Nor is the seriousness of Mr Wissell’s conduct mitigated by the activities of any other person. He was in charge of the truck at the relevant time. He was not compelled or directed by others to top-up the windscreen fluid reservoir, or when, or how he was to do so. He made that decision whilst the radiator cap was de-pressurising. Nor was his conduct attributable to someone distracting him or rushing him beyond his regular driving schedule.
[101] I have characterised Mr Wissell’s inattention and carelessness as gross negligence and recklessness. Aside from the fact that it was not deliberate and that he made a prompt report, there are no other material factors in mitigation.
[102] I conclude that Mr Wissell’s conduct was serious misconduct. It was a serious breach of his duty to act with requisite care, attention and diligence. In the circumstances, it was negligence and recklessness at the higher end of the scale. It was, in its own right, a valid reason for dismissal.
Driving with coolant warning light illuminated
[103] SCT allege that on 21 May 2019 Mr Wissell drove out of the depot and on public roads with the coolant warning light illuminated on his dash. SCT submit that this was a breach of duty. It says that a driver’s obligation under site practice and the Daily Driver Runsheet is to notify relevant employees before driving out of the depot if the pre-trip inspection raises any issues requiring immediate attention, such as a warning light.
[104] The factual dispute on this question involves evidence from Mr Wissell that is difficult to reconcile. It is not in dispute that when Mr Wissell turned on the engine at the depot, the coolant warning light came on. In his witness statement Mr Wissell said as follows: 30
“I did my pre-start checks and I saw the coolant light was on in the truck. I pulled into the BP Service Station on the Port River Expressway at around 6.20am. I attended to the radiator in exactly the same way that I had done with every other truck that I have driven.”
[105] I accept this evidence. He gave similar evidence in chief before me. It is plausible. The clear inference from this evidence is that the light was on whilst at the depot and remained lit on the dash during his journey, and that Mr Wissell pulled into the service station to attend to the issue.
[106] This was the understanding Mr Wissell provided the employer on 21 May 2019 and 30 May 2019. The meeting notes record:
“Wayne…did his pre-start checks in the terminal and noted it came up with coolant so he left the terminal and pulled into the BP Service Station…” 31
“Wayne confirmed that during the pre-trip inspection that “Coolant” signal came up on the dashboard and on the way to Qube he would fill it up at the service station.” 32
[107] In evidence, Mr Wissell agreed that the notes of those meetings were an accurate record. 33
[108] In cross examination, Mr Wissell asserted that that the coolant light came on at the depot but turned off. 34 He had not previously advanced this position.
[109] I do not accept this evidence. It was belated and self-serving. It was a not too subtle attempt to counter employer evidence of a breach of duty. It is implausible. If the coolant warning light had cleared before driving the truck out of the depot that morning it is highly unlikely that Mr Wissell would have made an unscheduled stop at a service station. It is far more plausible that the coolant light came on at the depot, remained on during the journey and that this caused Mr Wissell to stop en-route. The first thing Mr Wissell did at the service station was to try to remove the radiator cap. There was a sufficient urgency for him to stop en-route. Had the warning light no longer been illuminated (nor been illuminated at any time whilst on public roads) that degree of urgency would not have existed.
[110] Although Mr Wissell did not give specific evidence that the coolant light remained on during the journey, the evidence before me leads strongly to that conclusion. I find, based on the balance of probabilities and to a proper level of satisfaction, that the coolant light on the truck dash was illuminated when Mr Wissell drove out of the depot and that it remained illuminated during the journey until he switched off the engine upon arrival at the service station.
[111] I also find that driving the truck out of the depot with a warning light displayed was a breach of duty.
[112] Mr Wissell’s evidence was:
“I wouldn’t have driven the truck with that light on. It had to have gone out otherwise I wouldn’t have driven it. When the light comes on that says there is an issue.” 35
[113] I accept the employer’s evidence that issues that come to the attention of a driver as part of the pre-trip inspection and before they leave the depot should be reported and, if necessary, attended to before taking the truck onto the road. Mr Wissell could have done so but chose not to. 36 Only weeks earlier Mr Jenkins had cautioned Mr Wissell to take extra care with the new truck and strictly observe established policy.
[114] Given that the warning light was an alert, this failure of duty was material but not at the serious end of the scale. Individually it warranted counselling or warning but was not a valid reason for dismissal. However, being a departure from required practice, it is relevant to an overall decision as to whether breaches of duty were collectively a valid reason for dismissal.
Intending to top-up coolant
[115] SCT submit that Mr Wissell breached his duty by intending to top-up coolant in the vehicle, contrary to an instruction given during his induction that, apart from the windscreen fluid, no fluids were to be placed into the engine by drivers and that all such work was to be performed by Mercedes.
[116] This proposition requires me to be satisfied of two matters: that Mr Wissell held the relevant intention, and that an instruction to the contrary had been given.
[117] I am satisfied that Mr Wissell held the relevant intent. His evidence in chief was: 37
“I attended to the radiator in exactly the same way that I had done with every other truck that I have driven.”
[118] This included topping-up radiator coolant, as he had in the past. 38 I have found that Mr Wissell stopped at the service station en-route because a coolant warning light had remained illuminated since leaving the depot.
[119] In his statements to the employer on 21 and 30 May 2019 Mr Wissell led the employer to believe that he was intending to top-up the radiator coolant. This was the clear inference from his evidence in chief before me. He openly said that he started removing the radiator cap and only paused to allow it to fully depressurise.
[120] In cross examination Mr Wissell said that he was only intending to “check” the coolant level (not fill it) 39, and in later evidence he said that he intended to do this by placing his finger in the radiator, and that if the level was low he was intending to then drive the truck to the Mercedes service provider to have the coolant topped-up.40
[121] I do not accept this evidence. It was belated and self-serving. Placing a finger in a radiator of a truck that had just been driven on an expressway to test coolant levels is an act of potential self-harm. That an experienced driver would do so in the course of their employment stretches credulity. That Mr Wissell interrupted his trip by stopping his prime mover en-route with the intention of doing an act of potential self-harm but doing no more is far-fetched. A far more plausible explanation is that Mr Wissell intended to top-up the radiator with coolant, because the warning light was still displayed on his dash. Mr Wissell’s belated evidence that he intended to travel to Mercedes if the coolant level was low was not given in chief, but only stated when questioned about his intent. He never proffered this view to the employer during its investigation or at the 21 May 2019 disciplinary meeting.
[122] I find that Mr Wissell intended to top-up the radiator with coolant at the service station.
[123] This finding does not, of itself, constitute a breach of duty. Generally speaking, drivers of vehicles are entitled to top-up fluids in the engines of vehicles they drive. Giving effect to this intent would only be in breach if Mr Wissell had been advised by his employer or the manufacturer not to do so.
[124] Was such an instruction given to Mr Wissell by Mr Holmes during his induction on 4 April 2019?
[125] On this there is disputed evidence. Mr Wissell was consistent in his evidence that no such instruction had been given. He also advanced this view to the employer on 30 May 2019.
[126] Mr Holmes was equally adamant in his evidence that he gave Mr Wissell such an instruction (verbally, not in writing) after having opened the bonnet of the truck and shown Mr Wissell the engine bay.
[127] The credibility of the evidence of both witnesses on this matter was challenged.
[128] Mr Wissell’s evidence about the induction was said to be selective. I agree. I accept his evidence, not contested by Mr Holmes, that the induction took only 20 to 30 minutes and was oral not written. However, Mr Wissell’s evidence that the bonnet of the truck was not opened during the induction was not convincing. I much prefer Mr Holmes evidence on that point. Mr Holmes was sure that he had done so, and not just walked around the truck and sat in the cabin. It is far more plausible that one driver assessor giving another driver an induction on a new truck would, during the induction, open the bonnet to show the engine bay. I accept Mr Holmes evidence that he did so. It was expressed clearly and succinctly.
[129] Mr Wissell’s evidence that the bonnet was not opened during the induction was a reconstruction designed to rebut Mr Holmes’s evidence that the alleged instruction to not fill fluid points was given whilst the bonnet had been opened on 4 April 2019 and the engine block displayed.
[130] Mr Holmes’s evidence was challenged on the ground that he had refused to sign a written record created by Mr Myers which set out his (Mr Holmes) discussion with Mr Myers about his (Mr Homes) induction discussion six weeks earlier with Mr Wissell.
[131] I treat Mr Holmes’s evidence with some caution given his evasiveness in answering questions about why he refused to sign Mr Myers’s record.
[132] However, whatever Mr Holmes’s reasons for not wanting to sign Mr Myers record of the Myers/Holmes discussion on or about 21 May 2019, his evidence about his induction discussion with Mr Wissell on 4 April 2019 was direct evidence not lacking credibility, even taking this caution into account. It was firm, consistent and plausible.
[133] Mr Holmes’s evidence was, in chief and in cross examination, that he (Mr Holmes) had received a briefing from Mercedes prior to inducting the drivers. He says that at that briefing, Mercedes had advised that, except for the washer fluid reservoir, “under no circumstances was anyone other than Mercedes to touch the fluids in the engine as they all required specific grades of fluid and must only be maintained by Mercedes.” 41 Mr Holmes went on in his evidence:42
“I expressly told all drivers, including Wayne, that under no circumstances should any driver be topping-up any fluids in the engine bay because they all required specific fluids and this would be managed by Mercedes. I also confirmed that the washer bottle could be filled by them and I pointed out where it was.”
[134] Mr Holmes gave this evidence via a witness statement that he voluntarily signed on 11 September 2019, and in chief under oath before me on 10 October 2019. He remained steadfast in this evidence under cross examination notwithstanding his evasiveness as to why he did not wish to sign the Myers record of the Myers/Holmes discussion.
[135] What ultimately is in issue is whether I am satisfied, to the requisite standard of proof, that the Holmes/Wissell discussion of 4 April 2019 occurred as deposed by Mr Holmes, or the alternate version advanced by Mr Wissell. That Mr Holmes refused to sign a subsequent record of a conversation between himself and a manager and to explain to the Commission why he so refused is relevant to credit. However, that record of conversation, which is in evidence, is not the induction discussion but hearsay about the induction discussion. Even if the record was signed by Mr Holmes, it would not be evidence of the truth of the induction discussion. I have direct (but conflicting) evidence of Mr Wissell and Mr Holmes about the induction discussion.
[136] Even with an appropriate level of caution applied, I prefer the evidence of Mr Holmes about the induction discussion. I am satisfied, on the balance of probabilities and to a proper level of satisfaction, that Mr Wissell was advised by Mr Holmes on 4 April 2019 that, apart from the windscreen fluid, no fluids were to be placed into the truck engine by drivers and that all such requirements were to be done by Mercedes or their agent.
[137] Having been given that instruction, and having stopped the truck on 21 May 2019 with the intention of topping-up coolant fluid, Mr Wissell acted contrary to his duty.
[138] This failure of duty displayed a degree of indifference to the instruction given or inattention during the induction. However, conduct in breach of the instruction did not materialise as events overtook Mr Wissell’s intent. It was a material failure of duty but, not having been given effect to, was not at the serious end of the scale. Individually it warranted warning but was not a valid reason for dismissal. However, being an intent to depart from an express instruction, it is relevant to an overall decision as to whether breaches of duty collectively were a valid reason for dismissal.
Giving misleading or inconsistent explanations
[139] SCT submit that Mr Wissell failed in his duty to provide complete or consistent information about his induction and the events of 21 May 2019, and that this eroded the employer’s trust and confidence in him.
[140] I am satisfied on the evidence before me that aspects of Mr Wissell’s statements made to the investigation were inconsistent and shifted ground, in similar ways that I have concluded that aspects of his evidence before the Commission was a reconstruction of events.
[141] However, whilst this reasonably impacted the confidence SCT had in Mr Wissell, the bigger picture is that Mr Wissell was, initially at least, open and truthful about what had occurred. He drew the incident to the employer’s attention by promptly reporting it. Upon being returned to the depot, he voluntarily sat with managers and openly declared that he had “fucked up”. It was only as days passed and he reflected on the consequence for his employment that his version shifted ground, disclaiming that the bonnet had been open during the induction, challenging that Mr Holmes had provided an instruction to not top-up fluids and arguing that he was impeded by darkness and bad light.
[142] Overall, I do not consider Mr Wissell’s incomplete or inconsistent explanations, in the context of his initial disclosure, constitute a valid reason for dismissal. However, they raise legitimate issues of credit even taking into account an employee’s desire to cast their conduct in the most favourable light possible during a disciplinary investigation. I consider these issues of some but limited relevance to a consideration of whether the breaches of duty were collectively a valid reason for dismissal.
Conclusion on valid reason
[143] There was a valid reason for dismissal.
[144] I have concluded that Mr Wissell’s negligence and recklessness in pouring water into the oil sump of the Mercedes prime mover was, in the circumstances, serious misconduct warranting termination of employment in its own right.
[145] The further breaches of duty in driving the truck out of the depot on 21 May 2019 with an active warning light illuminated and Mr Wissell’s intention to top-up radiator coolant contrary to an express instruction added to the seriousness of the misconduct.
[146] I further conclude that were (contrary to my conclusion) mitigation factors weighty enough to not render the act of pouring water into the oil sump a valid reason for dismissal in its own right, when coupled with the two related breaches of duty on that same day, the breaches collectively constitute a valid reason for dismissal.
[147] As such, the reasons individually and collectively form a sound, defensible and well-founded reason for dismissal.
[148] This conclusion weighs strongly against a finding of unfair dismissal.
Notification of the reason for dismissal (section 387(b))
[149] Mr Wissell was verbally notified of the reason for dismissal by Mr Bourke on 30 May 2019. His termination letter of 5 June 2019 confirmed his summary dismissal but did not repeat the reason for dismissal. That notwithstanding, Mr Wissell was notified orally of the reason for dismissal.
[150] This conclusion weighs marginally against a finding of unfair dismissal.
Opportunity to respond (section 387(c))
[151] The evidence before me is that Mr Wissell was provided a clear and fair opportunity to respond to the allegations against him.
[152] He was given an opportunity to explain the incident while fresh in his mind on 21 May 2019. He was provided a written summary of this meeting and signed that summary later that day.
[153] By letter dated 24 May 2019 he was formally advised that a disciplinary process had been commenced, and of the allegations against him. They were twofold: that he had “demonstrated a disregard and level of carelessness that is unacceptable” and that he “acted in breach of an instruction”.
[154] At the disciplinary meeting on 30 May 2019 he was provided a full opportunity to explain his position and respond to the allegations. He did so in the presence of two managers and his support person.
[155] I conclude that SCT provided Mr Wissell a reasonable opportunity to respond to the allegations of misconduct levelled against him. He was not denied procedural fairness.
[156] This conclusion weighs somewhat against a finding of unfair dismissal.
Opportunity for support person (section 387(d))
[157] Mr Wissell was afforded the opportunity to attend the disciplinary meeting on 30 May 2019 with a support person. This was specifically made known to Mr Wissell via the disciplinary letter of 24 May 2019.
[158] Mr Wissell chose to attend with a support person.
[159] I conclude that SCT did not unreasonably refuse Mr Wissell a support person.
[160] This is a neutral consideration in this matter.
Warnings concerning performance (section 387(e))
[161] This matter concerns allegations of misconduct, not unsatisfactory work performance. As such, prior warnings about performance are not directly relevant.
[162] Of relevance is my finding that a prior instruction had been given to Mr Wissell not to top-up fluids in the engine bay other than the windscreen fluid reservoir. Also of relevance is my finding that Mr Jenkins had taken Mr Wissell aside prior to 21 May 2019 and counselled him to strictly observe company policy and practices when driving the new fleet of trucks which had been commissioned into service.
[163] There is no evidence before me that Mr Wissell had previously been warned about performance and conduct, other than having been spoken to by Mr Jenkins about smoking in trucks contrary to policy. The evidence before me is that he was an experienced and competent driver.
[164] This is a neutral consideration in this matter.
Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))
[165] SCT is a large national business in the transport and logistics industry, employing approximately 800 persons. It has internal capability to deal with industrial and human resource issues. Its size and internal capability provide no basis for the employer to provide other than substantive and procedural fairness to its employees.
[166] This is a neutral consideration in this matter.
Other matters (section 387(h))
Mitigation: single act of misconduct
[167] Mr Wissell submits that this was a single act of misconduct in the context of an employee with unblemished service. He says that dismissal for a single act of non-intentional misconduct is harsh. Mr Wissell makes a related submission that he has learned his lesson. He points to the employer’s evidence 43 that Mr Bourke did not consider it likely that Mr Wissell would again pour water into the oil of a truck engine.
[168] I give weight to these submissions. They weigh in favour of a finding of harshness. There is no evidence that Mr Wissell was other than a competent driver with an unblemished record. He displayed regret. He promptly reported what he had done. That reporting minimised the risk of the truck engine suffering catastrophic damage.
[169] There are instances where a single act of non-intended misconduct, particularly where remorse is shown and the conduct is unlikely to be repeated, would be harsh. However, each matter falls to be considered on its own facts.
[170] In this case, three considerations weigh against accepting this submission.
[171] Firstly, the seriousness of the conduct. It was gross negligence and recklessness directly attributable to Mr Wissell that led to a substantial quantity of water being poured into the oil sump of a significant business asset for which he was responsible.
[172] Secondly, whilst I have found that the negligence and recklessness warranted dismissal, I have found more than a single breach of duty. Aside from the failure to take due care when placing fluid into the truck engine, I have found that Mr Wissell also intended to breach an instruction, and earlier that morning had failed to follow established departure procedures when leaving the depot.
[173] Thirdly, there are reasonable grounds for the employer’s loss of trust and confidence in Mr Wissell given the nature of his reckless assumptions in dealing with the engine and the multiple breaches of duty that arose.
[174] That this was a single act of misconduct by an employee who was otherwise competent and is unlikely to be repeated does not, in the circumstances of this case, render the dismissal harsh.
Mitigation: personal circumstances
[175] Mr Wissell submits that he was suffering diagnosed stress and anxiety in the months preceding dismissal.
[176] I do not have medical evidence before me of probative value about the precise nature of Mr Wissell’s condition, but I accept his evidence that he was prone to stress, taking medication and seeing a psychologist.
[177] These were not matters which Mr Wissell had disclosed in any formal way to the employer. I accept the evidence of Mr Bourke that SCT had no material knowledge of Mr Wissell’s condition, other than being aware that Mr Wissell had occasionally submitted a medical certificate for short periods of absence. 44 At no relevant time did Mr Wissell seek to be relieved from driving either his former or the new trucks on the ground of stress and anxiety. When the employer did place Mr Wissell on light duties after a workplace accident in 2015, he took exception to remaining at the depot and not being allowed to drive until medically cleared, and this caused him frustration and stress.45
[178] During the 21 May 2019 meeting, after the oil in the water incident, Mr Wissell displayed a level of stress which prompted managers to ask him if there was more he wanted or needed to disclose on that front. 46
[179] Whilst I accept that Mr Wissell suffered bouts of stress and anxiety prior to the incident, I am unable to conclude that the incident on 21 May 2019 was attributable to stress and anxiety or that this was a material contributing factor in mitigation. Mr Wissell’s evidence was that when he presented to work on 21 May 2019 he was fit and well to drive the truck. 47
[180] I do however accept, and find, that the incident, the disciplinary process and then the dismissal have deeply affected Mr Wissell, and accentuated his stress. His evidence was that he has been diagnosed by his psychologist as unable to work or seek employment since dismissal. 48
[181] The consequent impacts on Mr Wissell, socially and financially are self-evident. He was intending to work until retirement, but now at age 62 he fears he may not work again. He has lost the value and routine that work brings to one’s sense of well-being, and continues to need to pay his living costs including a car lease payment.
[182] These are real impacts, and I take them into account.
[183] In considering the significance of these factors I must weigh them alongside the self-evidently serious nature of the misconduct, as well as my overall findings concerning procedural fairness.
[184] I conclude that each of these considerations, whilst relevant, are not unique. They do not carry sufficient weight to set aside the breaches of duty and the valid reason they constitute. They do not sufficiently transform this dismissal for a valid reason into one that can be characterised, at law, as harsh. 49
Conclusion
[185] This matter concerns summary dismissal for serious misconduct.
[186] My role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal of Mr Wissell was harsh, unjust or unreasonable.
[187] The onus of proof in establishing that a dismissal was harsh, unjust or unreasonable rests on an applicant, in this case Mr Wissell.
[188] However, in cases such as this, the employer carries an evidentiary burden of proof to establish that the misconduct which they allege did in fact occur. I have made findings of fact having regard to the evidentiary onus borne by the employer. Those findings of fact have been based on the requisite standard of proof.
[189] The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 50 as follows:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[190] In reaching my conclusion, I adopt the approach set out by a Full Bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post: 51
“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;
against
(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.
[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”
[191] Both Mr Boughey and Mr Broadbent referred me to cases where dismissal for serious misconduct, including singular incidents of misconduct, has been found respectively to be unfair, and not unfair. I have taken these cases and submissions into account. However, as the case examples themselves illustrate, each matter has its peculiar facts, as do these proceedings. In comparing and contrasting past misconduct cases, while general principles relating to the application of the FW Act are relevant, the outcome of those cases is of lesser value given the unique and distinguishing features of each matter.
[192] I have found that there were valid reasons for Mr Wissell’s dismissal based on serious breaches of duty and in particular Mr Wissell’s misconduct at the service station on 21 May 2019 when he poured a substantial quantity of water into the engine oil sump of a new Mercedes prime mover in a manner that was grossly negligent and reckless.
[193] Individually, and collectively with other breaches, the serious misconduct established a well-founded loss by the employer of trust and confidence in Mr Wissell’s capacity to work with due care and diligence, to work according to instructions and to not put its operating assets at risk.
[194] Nor was Mr Wissell denied procedural fairness. Reasonable criticism can be made of SCT that its induction was basic, largely informal and no documentation was provided beyond the vehicle operating manual and that the instruction about drivers not being permitted to top-up engine fluids on the new fleet of vehicles (other than the windscreen fluid reservoir) was oral, not in writing. This represented a change to established practice. Whilst I have found that Mr Wissell was verbally instructed on the new policy, SCT’s failure to reduce it to writing or include that revision in a revised Driver Daily Runsheet was a deficiency in its induction procedures. Nonetheless, the induction was conducted and Mr Wissell was assessed as competent to take the vehicle on his regular run. That was not an unreasonable decision. Nor was the disciplinary process unfair.
[195] In these circumstances the dismissal was neither unjust nor unreasonable. There was a sound, defensible and well-founded reason. Dismissal was not pre-meditated. The sanction was not disproportionate to the misconduct.
[196] I have considered whether the dismissal was harsh in two contexts: harsh because it was a single incident of misconduct; and harsh because of personal factors and impacts on Mr Wissell, particularly his age, his stress and anxiety and his future chances of securing comparable employment.
[197] The sanction imposed was the most severe available to the employer: summary dismissal. However, the dismissal is not rendered harsh simply because a lesser sanction was an option open to SCT. It is not uncommon that a number of reasonable disciplinary courses may be available to an employer on a given set of facts. The test under the FW Act is not whether the Commission would have dismissed in the circumstances that the employer did or whether the employer could have or should have been more lenient or taken different steps to make the sanction fairer. 52 It is not the Commission’s role to stand in the shoes of an employer to determine which of those courses it may or should choose.53
[198] The statutory object is one of ‘a fair go all round’ having regard to the decision that was made and all relevant circumstances.What is required to be determined is whether, in all those circumstances, the dismissal was, in objective terms, harsh, unjust or unreasonable.
[199] I have concluded that the singular nature of the incident (noting multiple breaches on the relevant day) and Mr Wissell’s otherwise clear record does not outweigh the seriousness of the breach of duty. I have also concluded that personal factors do not materially contribute to or explain the misconduct and, whilst real, are not unique or sufficiently weighty in the context of the misconduct to render the dismissal harsh.
[200] Whilst the employer did not decide a lesser sanction, it cannot be objectively said that the dismissal was harsh, unjust or unreasonable. Mr Wissell made a grave error borne of his negligence and recklessness and whilst intensely believing that he was treated unfairly, was not denied a fair go.
[201] As the dismissal was not unfair, I am not required to consider issues of remedy.
[202] For these reasons and in conjunction with the publication of this decision I issue an Order that the application be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Boughey of the Transport Workers Union (SA Branch) with Mr J Lewis, for the Applicant
Mr C Broadbent, for the Respondent (with permission)
Hearing details:
2019.
Adelaide.
10 and 11 October 2019
Printed by authority of the Commonwealth Government Printer
<PR713911>
1 [2019] FWC 5862
2 A7
3 R13
4 R1
5 A1
6 Audio 10 October 2019, 3.37pm
7 R2
8 R3
9 R5
10 R6
11 R12 Statement of Mr Bourke paragraphs 42 – 43; R11 Statement of Mr Jenkins paragraph 19
12 R12 Statement of Mr Bourke paragraphs 43(h) and (i)
13 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]
14 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373
15 Ibid
16 except where the Small Business Fair Dismissal Code applies
17 King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]
18 Edwards v Guidice (1999) 94 FCR 561 [6]-[7]
19 Budd v Dampier Salt Ltd (2007) 166 IR 407 at [14] - [16]
20 Briginshaw v Briginshaw (1938) 60 CLR 336
21 Audio 10 October 2019, 12.36pm
22 Audio 10 October 2019, 12.37pm
23 Audio 10 October 2019, 12.39pm
24 Audio 10 October 2019, 12.35pm
25 Audio 10 October 2019, 1.03pm
26 Audio 10 October 2019, 12.34pm – 12.37pm
27 Audio 10 October 2019, 12.23pm
28 Audio 10 October 2019, 12.22pm
29 R7
30 A8 paragraphs 15 - 16
31 R2 page 1
32 R6 page 1
33 However, at 12.34pm Mr Wissell said that “if it is written down there I must have said it”.
34 Audio 10 October 2019, 12.26pm
35 Audio 10 October 2019, 3.34pm
36 Audio 10 October 2019, 12.34pm
37 A8 paragraph 16
38 Audio 10 October 2019, 3.39pm
39 Audio 10 October 2019, 12.25pm
40 Audio 10 October 2019, 3.36pm-3.38pm
41 R10 paragraphs 5 and 6
42 R10 paragraphs 10 and 11
43 R12 paragraph 43(i)
44 Audio 10 October 2019, 4.32pm
45 Audio 10 October 2019, 12.09pm
46 Audio 10 October 2019, 12.32pm
47 Audio 10 October 2019, 12.11pm
48 A4
49 For example, Dawson v Qantas Airways Limited[2017] FWCFB 1712 at [48]
50 [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ
51 [2013] FWCFB 6191
52 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185 at [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
53 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685
2