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[2017] FWC 3552
Fair Work Commission
2017-07-20
Original judgment source is linked above.
6.1. sought employment with Goolwa Bus Service; and
6.2. offered employment with (name provided) as a casual employee commencing July 2017.
The Applicant commenced employment with the Respondent on 1 October 2015 in the position of "driver".
The sole purpose of this position was to operate a fuel tanker which transported fuel.
The Applicant was employed on a permanent and full time basis working on average fifty (50) hours per week.
The BP Australia (Regional Operations) Consolidated Bulk Fuel Transport (South Australia) Agreement 2012 has terms and conditions relevant to the employment of the applicant.
The Applicant's employment was terminated by the Respondent on 31 January 2017 after the Respondent was satisfied that the Applicant had engaged in serious and wilful misconduct on 5 December 2016.
16.1. Section C.5 of the Manual covers "safe driving practices".
16.2. Point viii. of section C.5 clearly states "always drive within the legal speed limit".
16.3. Point xxi. of section C.5. clearly states "always observe the road regulations".
Signage on Freeway and Location of Incident
A vehicle travelling towards Adelaide on the Freeway, prior to approaching the Crafers interchange, must pass through the Stirling interchange.
On and through the Stirling interchange, the speed limit for all vehicles is ninety (90) kilometres per hour, unless otherwise signed.
As a vehicle travels towards Adelaide past the Stirling interchange, just prior to the Crafers "off ramp", there is a fixed road sign on the left hand side of the road. This sign says "60 ahead all trucks and buses 500m".
This is the first road sign which informs truck and bus drivers that a change in speed limit is imminent.
As a vehicle proceeds through the Crafers interchange, it must pass under the Waverly Ridge Road Bridge which runs perpendicular to the Freeway (the Bridge).
Prior to approaching the Bridge, there is a fixed road sign. This sign states "60 all trucks and buses 100m". This is the second road sign which informs truck and bus drivers that a change in speed limit is imminent (before the speed camera in question).
After this sign, but again prior to the Bridge, there is a further fixed road sign. This sign states "60 all trucks and buses unless 40km/h applies".
From this sign, all trucks and buses must travel at sixty (60) kilometres per hour to the bottom of the Freeway, unless a forty (40) kilometre per hour restriction applies.
There is also a fixed sign on the Bridge that states "safety camera ahead". This is a reminder to all drivers that they are approaching a speed camera.
After passing under the Bridge and before the Craters on ramp, there is a fixed road sign which states "long steep descent 500m ahead". This is a reminder to truck and bus drivers that a descent is approaching.
The speed restriction for trucks and buses from the Crafers Interchange has been in place since 1September 2014.
The Crafers Interchange marks the beginning of a seven (7) kilometre steep descent into Adelaide (the Descent) which concludes at a large intersection of the Freeway, Cross Road, Glen Osmond Road and Portrush Road.
The Respondent first became aware of the Incident when in or about late December 2016, it received a traffic expiation notice (Notice Number N1751479A) for the Fuel Tanker (the Expiation Notice).
The Expiation Notice alleged that on 5 December 2016, at 2.01pm CDST at Craters West, the Fuel Tanker was travelling at eighty eight (88) kilometres per hour and exceeding the speed limit of sixty (60) kilometres per hour by twenty eight (28) kilometres per hour.
Mr Zacharjak notified Mr Marks of the Expiation Notice. Mr Marks then notified Mr Riley of the Expiation Notice for the purpose of identifying the driver of the vehicle.
Mr Riley's review of the Respondent's records revealed that the Applicant was driving the vehicle.
On 10 January 2017, the Applicant was then contacted by his line Manager, Mr Schroeder, and advised of the Expiation Notice.
On 17 January 2017, the Applicant was provided with a letter of allegation regarding the Incident (Letter of Allegation).
The Letter of Allegation alleged that the Incident amounted to serious and wilful misconduct and informed the Applicant that he was suspended from his duties on full pay.
On 25 January 2017, the Applicant attended a meeting with the Respondent's representatives.
The Respondent's representatives were Mr Chris Cornwall, Senior HR Advisor, Peregrine Corporation and Mr Rick Conti, General Manager, Reliable Petroleum.
Mr Phil McAuley attended the meeting as the Applicant's support person.
49.2. he was not distracted at the time the Incident occurred; and
49.3. there was no reason or justification for him to be speeding at the time the Incident occurred.
After some discussion, the Respondent's representatives took a break for approximately twenty five (25) minutes to consider the Applicant's responses.
The Respondent's representatives then adjourned the meeting until 31 January 2017 to enable them to consider the matter further and undertake further investigation.
On 31 January 2017, the Applicant attended a further meeting with the Respondent's representatives.
The Respondent's representatives were again Mr Cornwall and Mr Conti.
Mr Dean Watt also attended the meeting as the Applicant's support person.
During this meeting, the Respondent's representatives advised the Applicant that the investigation was complete, the allegations had been substantiated and that the Applicant's employment was being terminated for serious and wilful misconduct.
The Applicant was given notice of his immediate termination and was not paid in lieu of notice of termination.
A letter of termination was sent to the Applicant's residential address on or about 3 February 2017.
[20] It is also appropriate to make some additional factual findings based upon the evidence that is before the Commission and these should be read in conjunction with the agreed facts.
[21] Mr Murray has worked as a fuel tanker driver for much of the 39 years he has been in the road transport industry. Prior to the events of 5 December 2016, he had not received a speeding fine or committed a traffic offence as a truck driver in that entire career.
[22] Some of that prior service was with companies which are predecessors of the business now conducted by Reliable Petroleum.
[23] During the period of employment with Reliable Petroleum, Mr Murray was well regarded by the both management and fellow drivers. Prior to the events leading to this application, there were no disciplinary issues and he has demonstrated by his actions and conduct that he was committed to safety.
[24] Mr Murray usually drove within the Adelaide metropolitan area and did not normally travel on the Freeway. Mr Murray had previously driven a heavy vehicle on the Freeway however this was prior to the changes in speed limits and signage referred to in the statement of agreed facts.
[25] Amongst the training provided to Mr Murray was a session on "adherence to local conditional requirements ie South Eastern Freeway".[2] Based upon the evidence before the Commission that training was about load-mass management and route requirements rather than the dual speed limits on the Freeway. Mr Murray was however aware of the fatalities and other incidents that occurred on the end of the Freeway in recent years involving heavy vehicles, and in effect, was cognisant of the fact that the Freeway was heavily policed by speed cameras.
[26] Reliable Petroleum is part of the Peregrine Group and that group of companies are very high profile in the South Australian community. In particular, the group conducts a large chain of fuel retail outlets and is a major sponsor of sporting and other community activities.
[27] Reliable Petroleum has a business relationship with BP Australia and at least some of the fuel tankers that are used include the logos of both businesses.
[28] I will later deal with Mr Murray's evidence about his response to the speeding incident. His evidence about that incident beyond that reflected in the statement of agreed facts was to the following effect:
He was travelling back into Adelaide from Callington (about 100 kms round trip out of the city) in the left lane, going with the traffic and not over-taking any vehicles - noting that the speed limit for other vehicles at that point was 90kms per hour;
He was looking for the illuminated speed signs that are used on the Freeway at other points but for some reason he missed the various signs leading to, and at the point, where the 60 kms per hour speed limit starts to apply for heavy vehicles and continued at a speed (88 kms per hour) consistent with the previous limit (90 kms per hour);
He became concerned, in the last slightly uphill part of that section of the Freeway (something less than 500 metres into the zone) and before the continuous decline in the road commenced, that he should have slowed to 60 kms per hour and did so at that point; and
He proceeded down the remaining part of the Freeway within the relevant speed limit as confirmed by the presence of an additional speed camera in the descent and the absence of any further expiation notices.
[29] I accept Mr Murray's evidence about these matters, however, I will return to the consequences and characterisation of his conduct later in this decision. This includes the seriousness of what could be described as the major inattention evident in the above circumstances.
[30] Based upon my findings, travelling at 88 kms per hour, Mr Murray's truck was above the speed limit for approximately ten seconds at the point of the speed camera and he was travelling at the correct speed within a further 20 seconds or so.[3] There is no evidence that the speed of the truck caused any embarrassment to other drivers on the Freeway.
The response of Reliable Petroleum and the reasons for the dismissal
[31] The expiation notice was provided by the relevant authority to Reliable Petroleum, as the registered owner of the vehicle, in or about late December 2016. The notice stated that its date of issue was 20 December 2017. The respondent then took steps to ascertain which driver was involved. On 10 January 2017, Mr Murray's direct line manager contacted him and advised that the expiation notice for the speeding offence had been received and that his employment was being terminated. That manager did not give evidence in this matter and it is apparent from the evidence that was led that termination of employment at that point prior to an investigation was not contemplated by the respondent's policies and procedures.
[32] Mr Cornwall, and subsequently on 12 January 2017, Mr Conti became aware of the manager's actions. On 13 January 2017, Mr Conti contacted Mr Murray and advised that he had not been dismissed despite what he may have been informed, that he would be suspended on full pay pending an investigation and that there would be a formal meeting. A letter of allegation was also to be sent and this occurred on 17 January 2017.
[33] The two meetings with Mr Murray about these allegations are detailed in the agreed facts set out above. I will also further deal with Mr Murray's response below.
[34] Mr Conti, with the support of Mr Cornwall, determined that Mr Murray's employment should be terminated. It is apparent that this decision was a difficult and considered one for the respondent given its views about the conduct and the standing that Mr Murray had in the business.
[35] The substance of Mr Conti's decision was that he considered that Mr Murray could not be trusted not to repeat the speeding incident. Further, he considered that the incident represented serious and wilful misconduct and importantly, that the company would be open to public criticism if it did not act on the misconduct and a further incident occurred. The basis of that decision as drawn from his witness statement and oral evidence may be summarised in the following terms:
The answers provided by Mr Murray did not justify or excuse the speeding given his job as a dangerous goods truck driver;
The extent of the speeding (28 kms per hour over the limit) and the location - being a well-known and extensively policed "black spot" made the incident more serious;
The conduct was beyond a reasonable misunderstanding; and
The respondent was left with no real choice but to dismiss Mr Murray so as to avoid setting a dangerous precedent for other employees.
[36] Mr Conti also understood Mr Murray's response to represent excuses and in particular that:
"Going with the flow of traffic" - might suggest that it was okay for him to speed if other road users were travelling at a different speed;
"Travelling to the conditions at the time" - did not make sense given that there was no suggestion of poor road conditions or other similar factors;
Being unfamiliar with the road was not an excuse for a very experienced driver and he was required at all times to apply his professional knowledge and adapt to changing speed limits and other factors, and to be aware of such particularly on unfamiliar roads; and
Speeding was as bad on any road.
[37] However, Mr Conti and Mr Cornwall accepted that Mr Murray was truly remorseful for his conduct leading to the speeding incident.
[38] In reaching its decision, Reliable Petroleum also considered an informal transport industry practice that apparently operates to the effect that speeding offences in excess of 15 kms per hour would be considered for potential dismissal. I note that this is not reflected in any policies of the respondent, and that appropriately, no simple decision-rule was applied in this case.
[39] I have set out earlier Mr Murray's evidence about the actual events on 5 December 2016, which I have accepted. His response during the investigation process, and the view formed by Reliable Petroleum have also been set out in the agreed statement of facts and the findings immediately above.
[40] I note further that Mr Murray contested the expiation notice and that the Magistrate who heard the matter did not record a conviction and did not order that Court costs be paid (as would be normal in the case of an unsuccessful contest). The fine did however stand. Mr Murray contested the notice in an attempt to reduce the consequences of the offence in light of the dismissal and his view that it was unfair; rather than as an attempt to deny or downplay the seriousness of the conduct itself.
[41] I have considered the responses provided by the Mr Murray in light of his evidence to the Commission about the incident.
[42] Without detracting from that detail, the responses included to the effect that:
He was going with the traffic and travelling to the conditions at the time;
He was unfamiliar with the road and the revised speed limit changes and was looking out for the illuminated signs used elsewhere on the Freeway; and
It was not as if he was speeding in the metropolitan area (such as Greenhill Road) where the general speed limit of 60 kms per hour applied.
[43] It was evident that Mr Murray did not suggest that these various factors represented any form of excuse for the conduct. Mr Murray genuinely regrets the speeding incident and its impact upon his long-standing reputation as a safe and professional driver. Rather, the comments made about the incident during the investigation must be seen in the context that he had been stood down pending a decision about his future employment. Further, the comments now provided represent both an attempt to provide context and to justify why the conduct did not warrant dismissal.
[44] For example, 'going with the flow of traffic' is relevant to what was taking place around Mr Murray at the time and 'travelling to the conditions' touches upon one of the requirements placed upon the drivers by the respondent's policies. Further, the place that the incident occurred is relevant to the degree of risk and the potential consequences of the conduct.
[45] However, as conceded by Mr Murray and will become clear in this decision, these factors are not an excuse for the conduct. Rather, they go to Mr Murray's state of mind and his actual response to the conduct. A proper understanding of that response is also relevant to ascertaining whether the respondent's apparent loss of trust is objectively well founded and whether the inferences drawn from the conduct and the responses were reasonable.
[46] I also note that after the events leading to this application, Mr Murray successfully applied for the renewal of his Dangerous Goods permit.
[47] Section 385 of the FW Act provides as follows:
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy."
[48] Mr Murray was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.
[49] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.
[50] The FW Act relevantly provides as follows:
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 is 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."
[51] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.
[52] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) - whether there was a valid reason for the dismissal related to Mr Murray's capacity or conduct (including its effect on the safety and welfare of other employees).
[53] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.[4]
[54] The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee's employment.[5] It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.[6] Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.[7]
[55] In Woolworths Limited (t/as Safeway) v Cameron Brown[8] a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,[9] considered when a failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:
"In summary, a breach of an employer's policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is "sound, defensible or well-founded." A failure to comply with a direction to do or refrain from doing something in compliance with an employer's policy will not provide a valid reason for termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or
"Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination." [12]
[57] Although also dealing with considerations beyond the existence of a valid reason, in Bostik (Australia) Pty Ltd v Gorgevski (No 1)[13] the Court observed:
"Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable."[14]
[58] Mr Murray's conduct essentially involved inadvertence in not looking out for the multiple change of speed limit signage and slowing at the point required. Although not deliberate, this was a serious oversight in all of the circumstances. This led to a situation where he was driving a heavy vehicle with an empty fuel tanker in tow at some 28 kms per hour over the speed limit, on a section of road where, for reasons outlined earlier, that circumstance was potentially significant. Mr Murray's lack of familiarisation with the road represents an additional factor why care should have been taken. The conduct led to an offence that was expiable by the payment of a fee and with the loss of some demerit points under the relevant road traffic legislation and was not consistent with other safety obligations and requirements cited by the respondent. Despite the contextual and mitigating circumstances that I will return to, this represents a serious breach of his various duties as a driver.
[59] The policies and procedures of Reliable Petroleum and the other obligations were sufficiently explained to Mr Murray and understood by him. They were also reasonable and appropriate given the nature of the industry and the public, personal and business risks associated with the work of a heavy vehicle driver.
[60] I am satisfied that there was a valid reason for dismissal.
Section 387(b) - whether Mr Murray was notified of the reasons for dismissal.
[61] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.[15]
[62] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.
[63] Mr Murray was notified of the reasons.
Section 387(c) - whether Mr Murray was given an opportunity to respond to any reason related to his capacity or conduct.
[64] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.
[65] This process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. [16]
[66] I find that Mr Murray was aware of the nature of the employer's concerns about his conduct and had a reasonable opportunity to respond to these concerns.
Section 387(d) - any unreasonable refusal by the respondent to allow Mr Murray a support person.
[67] Mr Murray was afforded an opportunity to have a support person attend the meetings leading to the dismissal and this occurred.
Section 387(e) - if the dismissal is related to unsatisfactory performance by Mr Murray- whether he has been warned about that unsatisfactory performance before the dismissal.
[68] This consideration relates to performance of the job. Performance in this context includes the employee's capacity to do the work, and the diligence and care taken with that work.[17]
[69] In this case, the dismissal was fundamentally related to conduct.
Section 387(f) - the degree to which the size of the respondent's enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Section 387(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.
[70] Reliable Petroleum is a large business and has access to dedicated human resources expertise, which was involved in the process leading to Mr Murray's dismissal.
Section 387(h) - other matters considered to be relevant.
[71] Amongst other considerations, the Commission should have regard to the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission.[18]
[72] Further, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed.[19]
[73] There are competing considerations in this regard. These include the seriousness of the incident, the potential impact upon reputation and public risk and the extent of the speeding and the context in which it occurred. Further, the fact that Mr Murray performed driving functions before and after the speeding incident without other concerns, and had a very long history of driving without previous speeding offences, are also relevant considerations.
[74] Despite that very long and impeccable driving history, which is relevant to the likelihood of any further such conduct, Mr Murray's service with Reliable Petroleum was relatively short.
[75] Reliable Petroleum was rightly concerned about the potential for adverse publicity if it did not take appropriate action against Mr Murray in circumstances where another incident occurred into the future and other road users or infrastructure was involved in any such incident. The capacity for conduct to have such a result has been recognised as relevant to the present context.[20] This meant that the respondent could not condone the conduct and it was necessary and appropriate that a serious response be provided. This did not mean that dismissal was the only option and the fairness of that response remains for this Commission to determine in all of the prevailing circumstances. This includes consideration as to whether, objectively, there were sufficient grounds to conclude that Mr Murray could no longer be trusted to safely and compliantly perform his job including whether appropriate inferences were drawn in that regard.
[76] Having considered all of the circumstances, I consider that there are a number of factors that make the dismissal of Mr Murray harsh. These include:
The exact nature of the conduct and the circumstances in which the incident took place including that it was a single incident involving inattention rather than a deliberate or reckless action, and objectively there was little room for concerns that the behaviour would be repeated;
Mr Murray's immediate recognition that his conduct was not appropriate and his genuine contrition;
The likely impact upon Mr Murray of the dismissal given his age and industry service;
The absence of any actual reputational or other consequences for Reliable Petroleum; and
His work history, the nature of the work he had been assigned over that time, and the nature and circumstances of his employment.
[77] When weighed in the context of all of the circumstances, including those factors that led to the finding of a valid reason for dismissal and the potential risks and consequences arising from the conduct, I find that the dismissal was harsh.
[78] I also consider that the view taken by Reliable Petroleum that it could no longer trust Mr Murray was based upon inferences that were not reasonably drawn.
[79] I have weighed all of the factors and circumstances of this application.
[80] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,[21] the Full Bench observed:
"[24] ... ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open."
[81] In Byrne and Frew v Australian Airlines Pty Ltd,[22] the following observations were made by McHugh and Gummow JJ:
"It may be that the termination is harsh but not 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."
[82] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position.[23] Further, the fact that the employer could have chosen a lesser penalty is not, of itself, a ground to find that the dismissal was unfair. The Commission is also directed to ensure a "fair go all round". This is reinforced by the objects of this Part of the FW Act in s.381 including ss.(2) which provides as follows:
"The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned."
[83] I have found that a valid reason for dismissal existed and there are no concerns about procedural unfairness.
[84] However, having regard to the provisions of s.387 of the FW Act as applied to all of my findings in this case, I am for reasons set out above, persuaded that Mr Murray's dismissal was harsh and unreasonable.
[85] The dismissal was therefore unfair within the meaning of the FW Act.
[86] Mr Murray seeks reinstatement to his former position with some associated orders. If reinstated, he does not seek an order for lost wages between his dismissal and the resumption of his employment. The provision of any remedy is opposed by Reliable Petroleum.
[87] Division 4 of Part 3-2 of the FW Act provides as follows:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person's reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) the FWC may make the order only if the person has made an application under section 394.
(3) the FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer's enterprise; and
(b) the length of the person's service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order."
[88] The prerequisites of ss.390(1) and (2) have been met in this case.
[89] Mr Murray seeks reinstatement to his former position with the maintenance of continuity of service. He has not secured any significant or on-going work since his dismissal and has taken reasonable steps to seek alternative employment.
[90] Reliable Petroleum is opposed to that outcome on a number of grounds including that, in effect, it has lost trust and confidence in Mr Murray to perform work in the future in a safe and policy compliant manner. It also expressed concerns about the impact of reinstatement upon its capacity to enforce its safety policies into the future.
[91] Section 390 of the FW Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, it is proper to firstly consider whether reinstatement is appropriate.
[92] In Australia Meat Holdings Pty Ltd v McLauchlan[24] a Full Bench of the AIRC, having considered the language of the Act operating at that time, which is comparable to the present provision, said:
"In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability.
We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.
In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full Court of the Industrial Relations Court said:
"... We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.
While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case."
[93] More recently, a Full Bench of the Commission further considered the statutory scheme surrounding the remedy provisions including the role played by an alleged loss of trust and confidence felt by the employer. In Colson v Barwon Heath,[25] the Full Bench found as follows:
"[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing remedies if a dismissal is found to be unfair, which is one element of the object of Part 3-2. Section 381(2) of the Act requires as part of the object that a "fair go all round" is accorded to both the employer and employee concerned in deciding on and working out remedies under Part 3-2. Section 390(3) of the Act provides that the payment of compensation should not be ordered unless the Commission is satisfied that reinstatement of the person is inappropriate (and an order for compensation is appropriate).
[31] The approach of the Deputy President is consistent with that of the Full Bench in Regional Express Holdings Limited trading as REX Airlines v Richards which stated:
"[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a remedy is appropriate, compensation must not be ordered unless the tribunal is satisfied that reinstatement is inappropriate. Seen in the proper context the Commissioner's statement that reinstatement is the presumptive remedy is not indicative of any error in the decision. The section provides that compensation must not be ordered unless reinstatement has been found to be inappropriate. There is no basis for concluding that the Commissioner interpreted the section differently. Rex's first submission on remedy must fail.
[24] In relation to remedy, therefore, the first question is whether reinstatement is appropriate."
[94] The Full Bench further observed that consideration of reinstatement involved a balancing of the relevant considerations based upon evidence,[26] and that the approach outlined in Perkins remains sound and requires consideration of the "rationality" of the basis of the employer's concerns.[27]
[95] In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter[28] the Full Bench conveniently summarised the approach required as follows:
"[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party."
[96] Given the potential remedial benefit of reinstatement in the circumstances of Mr Murray, it is appropriate to assess the basis upon which that course of action is opposed within the framework provided by the decisions outlined above, along with other considerations bearing upon this discretionary judgment.
[97] Reliable Petroleum contends that it has lost trust and confidence in Mr Murray and as a result, he should not be reinstated. Further, it contends that his reinstatement would undermine its capacity to apply its policies and to defend itself from risk of public criticism.
[98] Without overlooking the witness statements and the statement of agreed facts, the oral evidence of Mr Conti and Mr Cornwall about these matters, and the potential for a reinstatement order to be made, included the following:
Mr Cornwall: "The relationship had become untenable on that basis, that there was a level of irretrievable trust...Probably could have looked past the speed limit, but the initial response I just felt wasn't appropriate for a driver of that experience, taking into consideration too we're carrying dangerous goods. Additionally... what would have happened if say, the applicant had an accident in six months' time and someone was seriously injured or worse? I think we all know that we wouldn't see through the press and the media that, company treats its drivers well, pays its drivers well. It would be Peregrine Corporation has allowed this driver to continue to work after serious incident on the south eastern, why was that allowed to occur? For mine, I couldn't take that risk."[29]
"Accept that he showed contrition... and that he was remorseful...the applicant is a nice bloke, a nice guy, it's a terrible situation that was put before us but unfortunately we've got to look at the bigger picture too, we've got corporate responsibilities and obligations that we need to adhere to...unfortunately it's not just about the person... if it was a personal decision and a decision based on popularity, the applicant I have no doubt would still be in his role but unfortunately we don't have that luxury."[30]
Mr Conti: "I had many of his colleagues ringing me, supporting Fraser's good record, so I was definitely aware of his good record."[31]
"No, I don't think it was a pattern on misconduct."[32]
"Far from it, far from it, Fraser is not recalcitrant at all."[33]
"I think for this, if we did a final written warning, in terms of scale, for us, for myself in transport management, this is at the most serious end so I didn't think that all of those other mitigating factors were enough to steer us away from how serious it was on the continuum...I couldn't think of a more serious speed breach that would deserve it."[34]
"I don't think there was ever any concern about getting Mr Murray off the road straight away. That's not the way I thought about it... for me there was no feeling from everyone inside the company that we had to expedite."[35]
[99] When asked how Mr Conti reconciles the initial delay in dealing with the matter and not being concerned about ensuring Mr Murray was no longer on the road with the decision to dismiss him without notice for serious and wilful misconduct, Mr Conti stated:
"I'm making that judgement now, because I've met Mr Murray and had several discussions with him so I'm at ease with his behaviour from that point of view."[36]
[100] In relation to whether Mr Conti believed Mr Murray could return to Reliable Petroleum and be a valuable employee, Mr Conti responded:
"I'm sure Fraser would do his best...valuable is probably not the right word...it would also come with a whole bunch complications for us to manage...sends a signal to all our drivers that you can go up to 28 kilometres over the limit and still be reinstated."[37]
[101] Mr Murray's evidence bearing upon the prospect of returning to work included the following:
"I take full responsibility for my actions... I find it very embarrassing."[38]
"I have never, since I've been a tanker driver in 1978, I have never had anyone from the public or motorist ever phone and complain about my professionalism as a driver."[39]
Yes because I have a very good relationship with the management at the Largs terminal and I have very good relationship with the drivers and I get along well with everyone.[41]
I think that I would be a valued employee...It's my first mistake in 39 years, I didn't intentionally do it."[42]
"What is the likelihood of this incident or a similar incident happening again?
After what's happened, you wouldn't make the same mistake twice."[44]
[102] Having regard to the totality of the evidence and the context in which the above testimony was provided, all of this evidence is genuine and the issues involved reflect the balanced nature of the decision that the Commission must make for itself in this matter.
[103] In this case, I have found that the taking of disciplinary action in connection with the incident was warranted and, in effect, the maintenance of appropriate discipline within Reliable Petroleum in that regard was particularly important given the nature of the work and safety risks within the industry. Further, those factors that have led to the view that the dismissal was harsh and unreasonable are also important contrary considerations.
[104] I have found that a valid reason for dismissal existed, but determined that the termination was unfair given the entire context. Depending upon the circumstances, an order for reinstatement might be appropriate as it is capable of directly addressing the impact of the dismissal. However, each case must be considered on its own facts and there is no automatic relationship between the findings on merit and remedy.[45]
[105] In this case, I consider that reinstatement of Mr Murray is appropriate. There is not a sufficient evidentiary basis to objectively justify the contention that there has been a loss of trust and confidence in the employment relationship. This includes the actual nature of the conduct, Mr Murray's response to that conduct when considered in context and his genuine recognition and remorse. In reaching this conclusion I have also considered the responses provided by Mr Murray in evidence about how he might conduct himself if returned to the workplace and the evidence of the management representatives in that context. This indicates that Mr Murray was, and is, a well-regarded driver within the workplace and I am satisfied that he could return to productively and appropriately perform the duties of a heavy vehicle driver. The nature of the workplace is also conducive to such an outcome. Further, his long history as a driver and the absence of any incidents both before and after the speeding incident are strong indicators that Mr Murray will not "reoffend".
[106] There is nothing in the other circumstances evident here that means that reinstatement is inappropriate or inconsistent with a fair go all around.[46] Indeed, I consider that a mutually safe and productive working relationship can be resumed and that a full understanding of the circumstances of the conduct and the basis of the reinstatement will not have the negative consequences feared by Mr Conti.
[107] Section 391(3) of the FW Act contemplates that the Commission may make an Order to restore lost pay. This is a discretionary power and given the desirability of reinforcing the need to comply with safety polices, I do not consider that such an Order is appropriate here and no Order under s.391(3) will be made. I will however make an Order maintaining the continuity of Mr Murray's employment and service under s.391(2) of the FW Act as I consider that step to be appropriate in all of the circumstances.
[108] I also consider that the action Reliable Petroleum is able to apply under its disciplinary policy to Mr Murray given any reinstatement (the capacity to issue a final written warning), when combined with the very significant loss of earnings (almost six months' income) resulting for Mr Murray from his dismissal and the absence of any order for lost wages, will mean that the safety culture Reliable Petroleum applies in its workplace will not be undermined.
[109] To the extent that the issue of the risk of future adverse publicity for Reliable Petroleum is relevant to this discretion, the Commission has made an objective assessment about the conduct of Mr Murray and of the future risk associated with his reinstatement. Further, the factors mentioned immediately above represent a significant practical sanction which demonstrates that the conduct has not been condoned in any sense.
[110] An Order[47] to give effect to this decision is being issued in conjunction with this decision. The Order will come into force with a lead time of just over two weeks. This is appropriate given the need for both parties to make the necessary arrangements and the absence of an order for lost wages.
Mr E Lawrie of the Transport Workers' Union of Australia for Fraser Murray.
Mr M Kay with Ms E Gordon of Wallmans Lawyers, with permission, for Reliable Petroleum Pty Ltd.
[2] VZH Driver Induction Record - attachment KT2 to the Statement of Ms Kirsten Tyack - Exhibit R3.
[3] The fixed speed camera is shortly after the commencement of the 60km per hour limit for the heavy vehicles.
[4] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].
[5] Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.
[6] See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.
[7] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.
[10] PR963023 (26 September 2005) at [34]. See also B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [48], [65] and [67].
[11] [2009] AIRC 893 (16 October 2009).
[13] [1992] FCA 209; (1992) 41 IR 452 per Sheppard and Heerey JJ.
[15] See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
[16] RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
[17] See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
[18] Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
[19] See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
[20] Although relevant to the issue of notice, the definition of serious misconduct in the Fair Work Regulations 2009 includes reference to conduct that represents serious and imminent risk to the reputation, viability or profitability of the employer's business (reg 1.07).
[23] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]; Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147 at [13].
[24] AIRC Print Q1625, per Ross VP, Polites SDP and Hoffman C, 5 June 1998.
[29] Sound file of hearing at 11:51 am.
[45] JBS Australia Pty Ltd v Mr Scott Challinger [2015] FWCFB 520 at [22].
Printed by authority of the Commonwealth Government Printer
Fraser Murray
Reliable Petroleum Pty Ltd [2017] FWC 3552
(1997) 72 IR 186
(1998) 84 IR 1
(1990) 27 FCR 427
(2010) 194 IR 1
(2000) 98 IR 137
(1996) 142 ALR 681
(1995) 62 IR 371
(2004) 133 IR 458
(1999) 94 FCR 561
(1931) 45 CLR 359
(1995) 185 CLR 410
(1992) 41 IR 452
(2000) 98 IR 233
(2003) 132 FCR 147