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[2018] FWC 1336
Fair Work Commission
2018-05-25
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Hanson Construction Materials Pty Ltd T/A Hanson Construction Materials Pty Ltd
[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) was made by Mr Darren "Pez" Pericich (the Applicant) alleging that the termination of his employment from Hanson Construction Materials Pty Ltd T/A Hanson Construction Materials Pty Ltd (the Respondent) was harsh, unjust and or unreasonable.
[2] The Applicant commenced employment with the Respondent on 10 April 2013 and was dismissed on 14 November 2017. The Applicant had been employed for over four years as a professional tipper driver with the Respondent. On 13 November 2017, the Applicant was provided with the following letter of termination:
I refer to the incident at around 9:10 AM on 9 November 2017 when your truck and trailer that you were driving had a serious near miss when you failed to stop on the red lights on the railway crossing on Cape Cleveland Road with the bullet passenger train approaching.
Hanson's motor vehicle policy requires that company vehicles must always be driven in a safe manner and all traffic laws must be complied with in full, at all times. It is part of our overall risk management strategy to eliminate "risky" or unsafe behaviour. This letter serves as a Termination Letter to you for unsafe driving, effective immediately. You will be paid one week's pay in lieu of notice.
[3] The matter was heard in Brisbane with a video link to Townsville. The Applicant was represented by Ms Kerri-Lee Fredericks of Anderson Fredericks Turner and the Respondent was represented by Mr Phil Copeland of Copeland Legal. Both parties were granted permission to be represented pursuant to s.596 of the Act. The parties sought to provide written closing submissions and Directions were set for the filing of this material.
[4] Whilst not all of the submissions and evidence are referred to in this decision, all of such have been considered.
SUMMARY OF THE APPLICANT'S SUBMISSIONS AND EVIDENCE
[5] The Applicant submitted that there was no valid reason for dismissal. In the alternative, the Applicant contended that if the alleged conduct amounted to a valid reason for dismissal, that he was not afforded procedural fairness. Further, the Applicant submitted that the dismissal was disproportionate to the alleged conduct.
[6] The Applicant argued that the evidence demonstrated that he was not involved in a "serious near miss", as alleged by the Respondent, and stated as follows:
"a. The dashcam footage capturing the incident demonstrates he was travelling at a safe speed;
b. That he took reasonable precautions on approaching the intersection taking into account the distance of the train and the traffic conditions at the time;
c. That he took the corner safely in taking into account the size and nature of his vehicle;
d. He manoeuvred the vehicle around the corner in a way that ensured the safety of the truck and prevented any collateral damage to the surrounding infrastructure;
e. That he exercised reasonable judgement on the approach taking into account the facts and circumstances available to him at the time;
f. He exercised such judgement as a man or woman of ordinary skill and fortitude might reasonably be expected to have exercised in the circumstances;
g. While the conduct could be described as a serious misjudgement as to when the lights were going to trigger, the conduct could not be described as deliberate, wilful or the result of belligerent disregard for traffic laws or the Respondent's policies and procedures;
h. The fact that this was a single isolated incident in an otherwise good employment record."[2]
[7] The Applicant relied on evidence from other truck drivers with experience driving heavy vehicles, and a mathematician who provided evidence on the estimated speed of travel at the time of the incident. He also provided video footage of other truck drivers, traversing he same rail crossing, the subject of his driving in this matter.
[8] The Applicant relied on the decision of the Commission in Murray v Reliable Petroleum Pty Ltd (Murray).[3] In that case, Mr Murray had been engaged to drive fuel tankers in Adelaide and some regional locations, and had been a driver for 39 years without incident. Mr Murray had been recorded by a fixed speed camera located on the south eastern freeway travelling down from the Adelaide hills at 88 km/h, some short distance into a 60 km/h zone. In considering the evidence in the matter, the Applicant referred to the following extract of that decision:
"[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.
[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. 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."[4]
[9] The decision in Murray was upheld on appeal.[5] The Applicant submitted that the Commission was guided by the following facts and circumstances in Murray, and adopts those as arguments in the current case:
"a. Firstly, that there was not a valid reason for dismissal and in that regard he contended as follows:
b. That for a reason to be valid it must be sound, defensible and well founded;
c. Ordinarily where an employee has blatantly, wilfully and recklessly failed to observe lawful and reasonable safety laws or directions, the employee may be terminated for valid reasons.
d. The incident of 5 December 2016 was not a case of blatant, wilful and reckless disregard for reasonable safety policies and procedures. The incident occurred because the applicant was unfamiliar with the service route and was not intentional.
e. Notwithstanding the above, the applicant does not deny that he is responsible for his actions nor does he deny that the incident was in breach of the standing speed limit.
f. Accordingly, although the applicant accepts responsibility for his mistake, the applicant submits that the incident on 5 December 2016 does not provide a valid reason for dismissal and that at most the incident on 5 December 2016 should have enlivened counselling or a written warning.
g. Secondly, the applicant contended that the dismissal was harsh and unreasonable on the following basis:
i. He had an unblemished service record and history with the respondent;
iii. the Respondent did not incur any costs and was not brought into disrepute or subject to financial/contractual hardship as a result of the 5 December 2016 incident;
iv. He is remorseful, contrite and open to any further training or counselling and is well received and respected by management and peers;
v. He has been in the industry for more than 30 years without incident; and
vi. At 65 years of age, he is unlikely to find employment of similar job security."[6]
[10] It was submitted on behalf of the Applicant that he was not provided with procedural fairness or natural justice, in that he was not clearly and explicitly notified of the reasons leading to the dismissal, prior to the decision being made. It was also argued he was not given an appropriate opportunity to respond to the allegations, prior to the dismissal taking effect.
[11] On 11 November 2017, the Applicant was verbally notified that he was stood aside, pending an investigation into the alleged incident on 9 November 2017. The Applicant stated that he requested written notification however none was initially provided. Later on 11 November 2017, the Applicant sent the following email to the Respondent:
In light of the allegations made against me, from Thursday morning the 9th of November 2017.
On Friday 10th of November 2017, I freely supplied my supervisor with the SD card containing the alleged incident.
At time of this document, I have been told verbally by Micheal O'Grady on Saturday morning 11th of November 2017, of myself being stood down pending an investigation. With or without pay has not been notified.
I wish to cooperate fully with Hanson to have this issue dealt with in a timely fashion and to continue my employment as soon as possible.
I am formally requesting a copy of all documentation regarding the allegation, the pending investigation and determination of myself being stood down.
I am formally requesting a copy of the footage from the dashboard camera of the event.
I am formally requesting an opportunity to defend my actions, as I deemed it was not safe to stop in time with the triggering of the signals in relation to my short distance from the stop line.
[12] On 13 November 2017, the Applicant received the following response from the Respondent:
You are currently stood down on full pay while this is being investigated. I hope to come back to you today or tomorrow.
[13] In reference to this correspondence, the Applicant submitted:
"a. The Respondent unreasonably refused requests to provide him with information in relation to the investigation;
b. The Respondent unreasonably refused requests to provide him with a copy of the footage in circumstances where it is apparent other persons, not involved in the matter, were at liberty to see the footage;
c. The Respondent unreasonably refused requests to provide him with an opportunity to respond to the allegations in circumstances where he particularly asked for an opportunity to do so;
d. The Respondent made the decision to dismiss him sometime after he was stood down, but before he had been given an opportunity to meet and respond to the allegation or show cause why he should not be dismissed;
e. The Respondent's conduct was particularly callous when considered in light of the fact that as a valuable employee the person tasked with the role of dismissing him could not shed any light on the matter or answer any of his questions."[9]
[14] A series of witness statements (as set out below) were provided in addition to the evidence of the Applicant. The Respondent only sought to cross-examine the Applicant. The other statements were accepted and tendered.
[15] Mr Michael McMillan, Managing Director and Senior Mechanical Engineer of Australian Expedition Vehicles Pty Ltd, provided evidence that he holds a Masters of Science in Vehicle Technology and a Bachelor of Engineering in Mechanical Engineering.
[16] He stated that he had seen the dashboard camera (dash cam) footage taken from the Applicant's truck on 9 November 2017, and had used that footage for his calculations in relation to speed. He set out the basis for his calculations and methodology. Using that methodology, he calculated that the truck was driving at the speed of 28 km/h in comparison to the posted speed limit for that section of road leading to the crossing, being 100 km/h. He concluded that the driver was decelerating significantly to negotiate the corner and crossing.
[17] Further, Mr McMillan stated in relation to the stopping distance of the truck as follows:
"23. The stopping distance once the lights activated (and the relative position of the vehicle with respect to the start of the lights flashing red), is difficult to determine without accurate data on the load, the actual mechanical braking system and other unknown variables: however, the time interval from the footage is approximately 1.5 -2.5 seconds, given the equations of motion and speed that the driver was decelerating, it would be approximately another 15 - 18 meters to stop, which in my estimate would not have brought the vehicle to a stop safely before the level crossing"[10]
[18] Whilst Mr McMillan's statement was accepted, the Respondent in earlier correspondence (after this statement was provided), objected that this evidence did not meet the Commission's requirements for expert witness evidence.[11] The expert evidence has been considered against these requirements.
[19] The Applicant's partner, Ms Margaret Stacy also provided evidence in these proceedings. She stated they have four children: aged 24, twins aged 19, and a seven-year-old daughter. She set out that she was a qualified Trainer and Assessor in allied health. Ms Stacy recounted the events of the afternoon on 10 November 2017, after the Applicant had returned home. She stated he had driven the truck home with him to clean.
[20] Ms Stacy stated that the Applicant had told her that Mr Michael O'Grady of the Respondent, had told him that there had been a complaint and he needed to hand over his secure digital (SD) card that contained dash cam footage of the alleged incident. She stated that her father had been an interstate truck driver, and she thought this was just a routine matter.
[21] She stated that Mr O'Grady had attended their home at 8.00 am on Saturday, 11 November 2017, seeking the truck's keys from the Applicant and Mr O'Grady stated that the Applicant had been stood down, pending an investigation. In relation to the incident, she stated:
"51. Pez told me that he had come over the hill at Cungulla, had backed it off, he was in the slip lane, saw the train, he slowed down to a speed slower than what he would normally do. He said that the lights were not flashing, he was still going slowly, the lights had not triggered so he thought it safe to keep going. He said when he got to the apex of the turn the lights triggered and he continued through. He told me the lights triggered at a point where he could not stop.
52. Pez told me that he had asked Michael O'Grady for paperwork. He asked me whether he would be stood down with or without pay. I said that I had no idea. We actually just sat there like stunned mullets.
53. Pez said to me that he asked Mick when he watched the video to let me know.
54. Pez kept asking how they could make a decision without watching the video.
55. I remember I was also asking Pez questions like "Was there an oncoming car? Was there something else?"
56. Pez drafted an email asking for a copy of the footage and exactly what the allegation was. He asked me to read the email to see if it was okay before sending it. Pez then sent the email."[12]
[22] Ms Stacy contacted Queensland Rail by telephone on 15 November 2017, and confirmed that a report had been made by an employee of the Respondent on 13 November 2017, however they had no record of a near miss incident on 9 November 2017. The Queensland Rail representative who spoke with Ms Stacy said that because there was no incident on 9 November 2017, he could not forward documentation confirming the same to Ms Stacy, and confirmed that had a near miss occurred, the incident would have been referred immediately to the Queensland Police Service.[13]
[23] The Applicant stated that he had also made enquiries of Queensland Rail on 14 and 21 November 2017, in which it was repeated to the Applicant, that the train drivers had not made any report on 9 November 2017 and that the police would have been contacted in such an instance. The Applicant requested Queensland Rail's footage from that time of day and was advised he would need to make a Right to Information request.[14]
[24] Ms Stacy set out the personal circumstances of the Applicant, with regard to his dependent children, two of whom they support and have special needs. The Family Doctor had provided a medical certificate, setting out that the Applicant and his partner had been his regular patients for the past 10 years and also stated that both children have severe disabling and complicated health issues and their care (emotional, financial and physical), depends entirely on the Applicant and his partner.
[25] Ms Stacy set out the emotional impact of the dismissal, that she had witnessed the Applicant, suffering from depression, mood swings and anxiety and that he was experiencing difficulty sleeping. She also set out the personal and financial impact on herself and the family.
[26] A witness statement was also provided by Ms Heather Harker. Ms Harker stated that she was an experienced truck driver, she and her husband owned their own company, and she had driven trucks for 10 years on an interstate basis. She stated that she did not know the Applicant, but knew his partner.
[27] She stated she had seen the dash cam footage taken from the Applicant's truck on 9 November 2017 and that she was very familiar with the Cape Cleveland Crossing, where the alleged incident occurred. She stated she used to drive six wheel dump trucks through there for a company, that contracted with the Respondent. She further stated that it was her understanding that the flashing lights trigger with sufficient time to allow vehicles to stop, if it is safe to do so. She considered after having watched the footage, the Applicant approached the corner safely and made the right decision not to slam on his brakes.
[28] Mr Sean Hassett, Leading Hand of the Respondent, provided evidence that he had known the Applicant for approximately five years. He stated that the Quarry Manager, Mr Steve Drochmann had requested he sit in during a meeting with the Applicant on 13 November 2017. He stated the meeting was to inform the Applicant that he had been dismissed.
[29] He stated that there was not a meeting about the incident prior to the one in which the Applicant was informed that his employment was terminated. He further stated that he considered there were no difficulties with the Applicant's capabilities or standards, in relation to driving trucks inside the quarry, and that he would be happy to work with the Applicant, if the Applicant were reinstated.
[30] Mr Simon Stern also provided a statement of evidence in these proceedings. He stated he was presently working with Black River Quarry and Entire Recruitment at the Port and that he had previously worked with Holcium Quarry Roseneath as a Machine Operator.
[31] He stated he has track side access for Queensland Rail and is aware of their strict standards. He stated he had never actually worked with the Applicant. Having seen the dash cam footage, his evidence was that, there is no way a truck of that size could have safely stopped at that distance.
[32] Ms Valerie Larson provided a statement in these proceedings. She stated she had held a Medium Rigid truck license for two and a half years and that she had been loading and towing floats for more than 30 years. She stated she had left the neighbourhood for eight years and was very familiar with intersection coming off the highway and travelling to Cape Cleveland Road. She stated she regularly travels to ride horses, and drives towing a horse float. She stated that she often saw the Applicant driving trucks coming out of Riley right onto Carty Road, whilst she was on horseback.
[33] She emphasised he was a cautious driver, and she had seen the relevant footage. She stated that in her opinion, having driven that corner many times, she considered by the time he approached the intersection before the lights went on, he would not have been able to stop, even if he were going very slowly. From her experience driving large vehicles around that corner she considered in the circumstances of the Applicant, carrying a double load on the back, that he would not have been able to stop and if he had he would have been in "big trouble".
[34] The Applicant provided evidence that the Respondent is a large company that supplies heavy building materials to the construction industry, as well as producing and delivering aggregates and premixed concrete to customers throughout Australia. He stated he was a Tipper Driver in the Transport Section for the entirety of his employment. He was a full-time employee with an annual wage of approximately $70,000.
[35] He stated that on 14 November 2017, his employment with the Respondent had been terminated on the basis that, allegedly he had a serious near miss when he had failed to stop at the lights at the railway crossing, with a bullet passenger train approaching.
[36] He described the truck he was driving as follows:
"14. The truck I was assigned and driving on 9 November 2017 was a Mack Granite tipper with a quad dog trailer, covered by the Hanson livery. It has a tare weight of 16 tonne and measures 19 metres in length. The truck bears Queensland registration 431 SRZ with designation number PCA 4026 ('the Truck').
15. The Truck, as with all transport trucks owned by Hanson, was installed with many recording technologies provided by Trimble technology. Some notable functions include:
(a) G-force triggers that log excessive cornering speed; and
(b) Real time location and speed monitoring which is transmitted via GPS and satellite back to Hanson.
16. The Truck was also equipped with a dashboard camera with a wide-angle lens. The footage from the dashboard camera is stored on a Secure Digital card ('SD Card') and can be subsequently downloaded on a relevant computer system.
17. I understand that the Truck, as with all transport trucks owned by Hanson, are on lease for a five (5) year term.
18. I understand that the lease for the Truck had ended in approximately July 2017 and that Hanson were intending to replace the Truck in mid/end November 2017."[15]
[37] In relation to the transport team, the Applicant provided evidence as follows:
"19. The Transport team located in Townsville ('the Transport Team') is headed by Michael O'Grady ('Mick'). Mick is based in Townsville and reports to Justin Munro ("Justin").
20. As at 14 November 2017, Justin was the Transport Country Northern Region Manager based in Brisbane. However, I understand that after my termination, Justin was reallocated to the Metro division of the company.
21. During my employment, the Transport Team consisted of three (3) full-time drivers (this included myself).
22. However, in approximately September/October 2017, a temporary position was created for Mick's friend, Terry Ryan ("Terry"). The position was for Terry to be a tipper driver for a three (3) month period for the purpose of filling a job of 5000 tonne of sand being taken from the Burdekin River to the Hanson Quarry in Roseneath. I understand that Terry's truck was brought up from Biloela for this purpose."[16]
[38] His evidence in relation to the incident on 9 November 2017, was as follows:
"23. It is alleged that at approximately 9:10AM on 9 November 2017, I drove through a red light at a railway crossing on Cape Cleveland Road causing a near miss situation between the Truck and a Bullet passenger train.
24. My recollection of events from 9 November 2017 around 9:10AM are as follows:
(a) I was driving from Mount Saint John's Concrete Plant to the Cungulla Sand Plant. I had an empty load.
(b) As I was driving on the Bruce Highway, I could see the train off in the distance from my elevated position. In seeing this, I approached the intersection much slower than I normally would have, as I was expecting the stoplight to trigger. I was 'prepared to stop';
(c) However, once I reached a distance that I deemed would have been safe to stop in time, the lights had still not triggered, and the train was still a long way off;
(d) My 'point of no return' has now been reached, and the lights have still not signalled. I am now way past my 'point of no return' and committed to make the turn safely, releasing pressure from the brake pedal;
(e) I recall the red lights triggered as I was at the apex of the corner;
(f) I continued to proceed over the railway track without incident;
(g) I believe without a doubt, that when the lights triggered, if I had panicked or made an emergency stop, that I would have come to rest directly on the tracks, resulting in a catastrophic event, colliding with the train.
25. I continued to drive to the Cungulla Sand Plant and continued my shift as normal."[17]
[39] The Applicant submitted that he had had a conversation that afternoon, with Mick O'Grady:
"Soon after we ended our telephone conversation, I met up with Mick and handed him the SD card as requested by him. At that point, we continued to have a conversation which was to the following effect:
What is going on? (with reference to the SD card)
I gotta (sic) take this card and look at it, someone has rung up and said that you nearly derailed the train. If we don't take action, they are threatening to go to the police
Why would someone only threaten to go to the police? If the allegation is that I nearly derailed a train, then the police need to be involved. In fact, I want the police involved.
Was the allegation from Queensland Rail or a member of the public?
I figured as much as if it was QR then the police would have kicked down my door yesterday."[18]
[40] The Applicant submitted he had considered that the dash cam footage would have cleared up the incident.
[41] The Applicant submitted that he had not been given an appropriate opportunity to respond to the allegations, with respect to the termination of his employment. He stated despite requesting a copy of the footage, the first time he was provided with an opportunity to view such was when it was provided as part of the Respondent's response to his application in the matter.
[42] He stated on 14 November 2017, he had lodged an inquiry with Queensland Rail regarding the near miss incident on 9 November 2017 and stated the relevant reference number for this enquiry.
[43] In relation to this, the Applicant stated:
"68. Margaret has advised me that during the conversation the following was discussed:
(a) Mr Carie confirmed that on 13 November 2017, an employee of Hanson contacted QR and filed a report;
(b) However, QR records show that there was no near miss incident on 9 November 2017;
(c) Margaret requested to have this information verified in writing to which Mr Carie replied that he could not forward any documentation and as far as he was concerned, no incident happened at 9:10AM on 9 November 2017 at that intersection;
(d) Mr Carie advised that if a near miss incident occurred, QR would have immediately directed the incident to the Queensland police.
69. On 21 November 2017, I telephoned Jodie from QR for the purpose of following up my enquiry. The following transpired during the conversation:
(a) Jodie advised that due to the seriousness of the allegation, she has been advised that I need to apply to the Right to Information if I require the dash camera footage from the passenger train;
(b) Jodie assured me that there was no report made of a near miss by the train drivers and if that were the case, the police would have contacted me immediately.
70. At 4:06PM on 21 November 2017, I received an email from Jodie of QR directing me to contact the Right to Information.
76. On the 21 November 2017 I was contacted via phone by Queensland rail in response to my inquiry of 14 November.
77. When I told her the events, she said she did not realise the gravity of the situation, and said she was going to get her supervisors to investigate it immediately. She said that someone would get back to me as soon as possible.
78. She told me that her records show that no near miss was reported by Queensland Rail staff on 9 November 2017. I was given reference number CFT-17-8556."[19]
[44] The Applicant provided a series of photographs and videos of the Cape Cleveland Rail Crossing.
[45] The Applicant stated the Respondent's trucks are fitted with a G-Force trigger that activates if a vehicle "goes around a corner faster than normal."[20] He stated that he considered if he had braked hard, turned hard and accelerated hard over that 60 second period, then the system would have deemed it to be an aggressive action and a spike would have been logged on the Respondent's system. That is, he stated if he had been driving at an excessive speed on 9 November the G-Force trigger would have registered an event, however the documents confirm that such a trigger did not occur.
[46] He submitted that the email provided on 8 February 2018 from the Respondent regarding the complaint was as follows:
"108. On 8 February 2018 Hanson provided me with an email, through my lawyer, from Renata Gans to Justin Munro. Stating:-
I just received a complaint the one of the quarry trucks in Townsville crossed the rail line at 9:10am on a red flashing light in front of a passenger train. The gentlemen who made the complaint wants a call or he will pass the complaint onto the police. His name is Lloyd on [redacted]."[21]
[47] The Applicant provided a further statement, indicating that he had watched the footage and that the driver on that occasion had chosen to swing right onto the highway lane so as to increase his angle of approach to the corner and that this had meant that he crossed the dotted white line marking the verge:
"4. In doing so he created a wider angle at which he could enter the crossing having already completed much of the arc needed to execute the turn.
5. While we cannot see the rest of the truck and trailer in my experience swinging wide by using the highway as part of the turn both the truck and trailer would have travelled onto the highway in executing the turn.
6. This manoeuvre was not available to me on 9 November 2O17 as I had traffic following close behind. Had I have executed the manoeuvre in the same way as the driver did in SB-9 it is likely that the truck and trailer may have clipped other cars as they were passing me on the highway."[22]
[48] He stated he prides himself on being a safe driver and has never been accused of unsafe driving or any other form of misconduct. The Applicant stated in regard to road safety, that he would never disregard the safety of himself or other road users; driving is his profession and provided the financial support for himself and his family:
"121. The Truck I drive is a Mack Granite tipper with a quad dog trailer, covered by the Hanson Livery which is easily identifiable by the public. It has a tare weight of 16 ton. It measures 19 meters in length.
122. It has been installed with a number of recording technologies provided by Trimble, which some functions include G-force triggers that log excessive cornering speed, real time location and speed monitoring. This data is transmitted via GPS and satellite back to Hanson.
123. I am constantly aware that 'Big Brother' is watching, and would never intentionally partake in risky behaviour."
128. From 15 November 2012 to 15 November 2017, I have not had any traffic infringements."[23]
[49] The Applicant gave evidence of the significant personal effect the dismissal has had on himself and his family. He did not consider there was any impediment to reinstatement and he considered he had maintained a very good relationship with the staff of his employer, their customers, clients and contractors:
"144. I also value safety very highly, not only in working for Hanson but in this industry. I take it very seriously because I drive trucks for a living and it is in mine, my families and my colleague's best interests that trucks are always driven safely on the road."[24]
SUMMARY OF THE RESPONDENT'S SUBMISSIONS AND EVIDENCE
[50] The Respondent stated that it operated a recognisable fleet of over 2,100 heavy vehicles across Australia transporting bulk concrete and raw materials. The Respondent submitted:
"4. Logistics manager Shane Blank is responsible for Hanson's Queensland Country transport operations. A major part of his role is ensuring that Hanson's heavy vehicles are operated safely on public roads and enhance Hanson's reputation as a good corporate citizen. Each year he personally travels throughout the state and gives a safety presentation to drivers.
5. Mr Blank makes a particular point of instructing drivers that they are to take their time and not rush any job. He consistently speaks to drivers (including Mr Pericich) about road safety and regulations, stating "It's not worth the risk and we pay you by the hour, so why take it". Mr Pericich most recently attended this presentation on 17 July 2017.
6. Hanson's requirements are repeated in clause 7.3.1 of the enterprise agreement applicable to Mr Pericich's employment ie:
"Hanson has a high public profile with many distinctively branded trucks on the road. Employees agree to maintain and enhance the public image of Hanson wherever possible. Employees agree to show a safe and courteous driving manner to other road users, plus ensure that trucks and equipment are presented in a clean and tidy condition."
7. On 9 November 2017 Hanson received a complaint from a member of the public that a quarry truck had crossed a rail line at 9:10am on a red flashing light in front of a passenger train. Investigations revealed that at approximately 9:10am on 9 November Mr Pericich was driving his empty tipper truck and trailer southward on the Bruce Highway to pick up a load of sand at Hanson's Cungulla Sand Plant (approx. 54km south-west of Townsville) and deliver to Hanson's Mt St John's concrete manufacturing plant in Townsville.
8. There was no urgency attached to this trip and Mr Pericich was under no pressure from Hanson to complete the trip within any particular timeframe.
9. Mr Pericich's route required a 90 degree left turn from the Bruce Highway across the adjacent railway line onto Cape Cleveland Road. While Mr Pericich was approaching the turnoff from the turning slip lane he had a direct, head-on view of a high-speed passenger train (the "Spirit of Queensland") rapidly approaching the railway crossing.
10. Despite this, Mr Pericich committed to crossing the rail line. As he started the turn the flashing warning lights came on at the railway crossing. It was too late for Mr Pericich to stop the truck and trailer so he continued on through the red lights. At this point the train was only around 11 seconds away from the crossing. Since his rig was 19 meters long, he had to take the turn at speed, which required him to veer the truck across white double lines completely into the opposing lane.
a. committed a serious error of judgement and took an unnecessary risk involving a passenger train and his heavy vehicle through:
i. being fully aware that the high-speed passenger train was rapidly approaching the crossing;
ii. being under no time pressure to prevent him from stopping to let the train clear the crossing before driving his 19-meter rig across;
iii. approached the crossing at a speed that prevented him from safely stopping at the red lights;
i. breaching traffic rules by driving through red lights and crossing double lines;
ii. negotiating the turn at an excessive speed that caused him to cross double lines and veer the truck completely into the opposing lane; and
c. damaged the reputation of Hanson with at least one member of the public who made a formal complaint."[25]
[51] The Respondent relied on two statements from Mr Blank and similar to the Applicant, placed significant reliance on the dash cam video of the alleged incident. Further extracts of the evidence, is referred to in the considerations.
[52] In considering whether a dismissal is harsh, unjust or unreasonable, the Commission must have regard to the matters in s.387 of the Act:
(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
[53] In cross-examination, Mr Blank was asked at what point the rail crossing lights started, relative to the Applicant's position and Mr Blank stated, "I would say as he touched the apex of that corner, they came on, and SB 7 sort of like indicates that. You can see the bullet train there is closer now, and at my recollection it's about 250 metres."[26] Mr Blank pointed out the approaching train, visible from the rail crossing.
[54] In terms of the Applicant crossing the centre meridian, Mr Blank stated:
"At that point, decisions should be made on what we're going to do. And we know we're going to come to a crossing which is probably 20 meters, 15 metres, around that corner. We're going to have to stop. Like, that's what we're going to do. It's a passenger train loaded with people. Our decision should be we've got a slip lane, we have to slow down for a corner, why would we try and race it? And ideally if we slowed to... take the corner, we would have remained on our side of the road, which would be even beneficial for any motor vehicles or transport that's over the other side of the crossing. Because it took some 500, 600 metres to get the truck back on our side of the road, after crossing the railway line."[27]
[55] Mr Blank gave evidence that had there been a collision, there may have been legal ramifications on him personally. He stated:
"My opinion and my decision was based on clearly that dash cam footage and our positioning on a road. Like I said, you know, maybe two seconds more, five seconds more, we're going to be sitting in a different court with a whole different world of pain around us. There were some really bad decisions in the way we approached that crossing, and that's what our decision was based on, and we did not have confidence that Darren was so confident that he did nothing wrong, that he could not see the errors. That's my concern. Because he's going back on the road; I'm responsible for him and the way he acts on the road, and I'm not prepared to be a part of next time we mightn't make it and injuring so many people."[28]
[56] Mr Blank agreed that the Respondent was a significantly large employer, with approximately 2,100 heavy vehicles on the road and approximately 3,000 employees.[29] He stated that the Applicant was given an opportunity to respond to the allegations and did so in his email dated 11 November 2017. He stated that the decision to dismiss the Applicant was made on 13 November 2017 after he had the opportunity to consider the dashboard camera (dash cam) footage of the incident. Mr Blank set out the process utilised by the Respondent on 13 November 2017 to review the footage:
"The process on that day was Justin certainly got it and he viewed it, himself. He then shared it with our risk person. They viewed it and had a conversation about it. It was then viewed by the State manager and the two other parties. I wasn't in the office on that morning. I came in the afternoon and I viewed it in the afternoon. I then had a discussion with the State manager on what we thought was appropriate, and the appropriate action was that we would terminate the employee."[30]
[57] Mr Blank conceded that he was unsure of whether the allegations had been put to the Applicant prior to the dismissal:
Ms Fredericks: Was the allegation that ended in the termination, was it put to the applicant prior to termination?
Mr Blank: I couldn't be sure. I don't know whether Justin [Munro] or someone else had said that to the applicant. I'm unsure of that.[31]
[58] It was put to Mr Blank that he was not interested in hearing from the Applicant in respect of the allegations. Mr Blank stated that he had considered the Applicant's response in the email of 11 November 2017. Mr Blank referred to the Applicant's email of 11 November 2017 and in particular the statements, "I am formally requesting a copy of all documentation regarding the allegation of the pending investigation and determination of myself being stood down. I formally request a copy of the footage from the dashboard camera of the event. I formally request an opportunity to defend my actions, as I deemed it was not safe to stop in time for the triggering of the signals in relation to my short distance from the stop light." It was put to Mr Blank that the Applicant was requesting an opportunity to respond to the allegations and Mr Blank agreed.[32] Despite the Applicant's request, he was not permitted to view the footage.[33]
[59] In relation to the Applicant's response, Mr Blank stated:
"Well, the unfortunate part of having a dash cam is that it can be your saviour but it can also incriminate you, and it's very hard to say that a) we weren't on the wrong side of the road, and b) we didn't go through a red flashing light with an oncoming train. So it's very hard to rationalise how you did a good job - you missed it this time, hope you do it next time. We can't operate like that, and I refuse to operate my division in that manner."[34]
[60] This matter turns on a single incident. Whilst some evidence was led with respect to previous warnings issued to the Applicant, these were not relied on.[35]
[61] The Respondent submitted that the Applicant had an obligation to follow the road rules. Instead, the Respondent alleged the Applicant had failed to stop at the red signal at the level crossing. In its response to the application, the Respondent also listed several other derogations from its expectations of the Applicant to drive and to drive safely, namely that: he had not cleared his windscreen; he should have been aware of the approaching passenger train; he negotiated the turn at an excessive speed causing his vehicle to veer into the opposing lane across the white lines; and he was not under any impediment to wait for the train to pass and yet approached the crossing at a speed which prevented him from safely stopping at the lights.
[62] It is relevant to note that, on the Applicant's evidence, Queensland Rail did not record a near miss at that crossing on 9 November 2017.[36] It was submitted that the Applicant had an unblemished traffic record going back five years prior to the incident, a copy of which was attached to his statement of evidence.[37]
[63] Further, in his statement of evidence, the Applicant stated that stopping suddenly at the crossing, at the point when the lights were triggered, would cause the trailer to swing into the infrastructure at the crossing. He also stated that taking the corner too narrowly could have a similar effect. The Applicant said that he is familiar with this intersection and takes that corner approximately 10 times per week.[38]
[64] The Applicant provided video evidence of vehicles making the turn and entering the crossing. The Applicant said he had filmed all vehicles regardless of size within the time period that he was present. It was clear on that evidence that the heavier vehicles, and medium vehicles such as small buses or people-movers, also took the corner wide.[39]
[65] The Respondent provided video evidence of other vehicles making the same turn and submitted that the crossing could have been safely negotiated without crossing the double white lines and going into the oncoming lane.[40] These videos were attached to the Further Witness Statement of Shane Blank, who stated that he caused a "re-enactment" of a Hanson truck and trailer, similar to that driven by the Applicant, performing the left hand turn at the same crossing at a safe speed.[41]
[66] It is recognised that the Respondent's driver was aware of the "re-enactment", and under instructions from the employer, causing the execution of the left-hand turn potentially to be executed in a manner that was contrived and not necessarily in the same conditions as those that the Applicant found himself in on 9 November 2017. The Applicant's video evidence also did not replicate the exact same conditions.
[67] Upon cross-examination by the Applicant's solicitor Ms Fredericks, Mr Blank conceded that the G-force trigger did not log any events on 9 November 2017.[42] The Applicant stated that he drove the truck so as not to trigger the G-force system.
[68] The Respondent relied on the dash cam footage but contended that it took serious issue with the Applicant's lack of remorse or concessions that he had done anything wrong. It was argued that the Applicant should have seen the train approaching, even before the lights at the crossing were triggered. The Applicant regularly travelled this route and was aware of this rail crossing. The Respondent, in managing a large fleet of vehicles and a significant workforce of drivers, placed continuing emphasis on the need for drivers to drive safely. By way of example, Mr Blank gave the following evidence:[43]
"MR BLANK: I'm actually in the chain of responsibility, and should that have been an accident, it has got serious ramifications on me personally as well as for the company that I work for.
THE COMMISSIONER: What are the ramifications on you personally?
MR BLANK: There are certainly legal ramifications. I can get fines, I can have - - -
THE COMMISSIONER: Are you in a statutory safety role?
MR BLANK: Well, in the chain of responsibility everyone from where we load a truck to when it gets back, anyone that has responsibility - and at the NHVR - to act accordingly to the best of their ability. And the best of my ability in this case is I've got a very dangerous situation and I'm not prepared to have a person work for me in that situation should they not see the fault of what has gone down, and it clearly hasn't been."
[69] Further, he made the following observations in his statement:[44]
"2. Hanson manufactures and delivers bulk concrete (and raw materials) throughout Australia and has a fleet of over 2,100 heavy vehicles (bulk concrete agitator trucks/tankers/tipper trucks). These vehicles have distinctive Hanson livery and are readily recognizable by road users. This creates the potential for serious damage to Hanson's reputation if its trucks are involved in any road incidents, and Hanson sets high expectations that its drivers promote a positive company image on public roads.
5. A major part of my role is ensuring that Hanson's heavy vehicles are operated safely on public roads and enhance Hanson's reputation as a good corporate citizen. This requirement is stated in the Hanson Construction Materials Pty Ltd Northern Region Country Queensland Tipper & Tanker Drivers Enterprise Agreement 2015 (which covered Mr Pericich's position). Clause 7.3.1 of the Agreement states:
"Hanson has a high public profile with many distinctively branded trucks on the road. Employees agree to maintain and enhance the public image of Hanson wherever possible. Employees agree to show a safe and courteous driving manner to other road users, plus ensure that trucks and equipment are presented in a clean and tidy condition."
[70] The Respondent objected to the evidence of certain of the Applicant's witnesses, and referred to the decision of the Full Bench in 4 yearly review of modern awards - Penalty rates.[45] In that case, the Full Bench considered that despite the Commission's broad powers to inform itself and dispense with the rules of evidence, there is still the need for a "sufficient connection between the opinion actually being expressed by the witness and the witness' specialised knowledge based on training, study or experience."[46] In this matter, this standard has not been made out, and the witness cannot be considered to be an expert witness.
[71] On balance, in considering all of the factors in this matter, a valid reason existed for the dismissal. The conduct of the Applicant involved taking an unnecessary risk that could have resulted in a serious accident. This conduct was fundamental to his duties as a truck driver. There was no reason for the Applicant not to stop at the lights. He was not carrying a load, nor was he on a time constraint. Regardless of whether a compliant was received, there were good reasons for the Applicant to ready his vehicle to stop at this well-known crossing, particularly given the approaching train and the associated risks.
(b) whether the person was notified of that reason; and
[72] The termination letter refers to an alleged "near miss" incident on 9 November 2017, when the Applicant failed to stop at the red flashing lights on the railway crossing in circumstances where a tilt train was approaching.
[73] The Applicant was not appropriately notified of the reason under consideration prior to the dismissal. The Applicant was solely notified of his failure to stop at the railway crossing when the lights triggered and the Respondent's assessment that this caused a potentially dangerous near miss incident. The Applicant was also not given a prior opportunity to view the available footage of the incident.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
[74] It was submitted by the Applicant that no opportunity was afforded to him to respond to the allegation of unsafe driving in relation to the incident of 9 November 2017. The Applicant submitted that on three separate occasions, verbally and in writing, he requested an opportunity to respond to the dismissal and the allegations grounding his dismissal.
[75] Evidence from Mr Hassett,[47] a Leading Hand at Hanson, of the termination meeting on 14 November 2017, indicated that the Quarry Manager, Mr Drochmann was ordered to hand the Applicant his termination letter, and was unable to respond to the Applicant's questions or explain the allegations with any precision.
[76] The Applicant continued to seek a copy of the dash cam footage on 11, 14 and 15 November 2017, but this was not provided to him prior to the dismissal or any time prior to making the application.
[77] The Respondent submitted that not having access to the video footage did not preclude the Applicant from responding to the allegation. It was noted that he had responded by email, and since the Applicant later viewed the footage and took no issue with the footage itself, it would not have had an impact on the outcome had he been shown the footage earlier. In support of this contention, the Respondent relied upon the consideration of Hatcher VP in Gurdil v The Star in arguing this criterion should be given neutral weight in such circumstances.[48] The Vice President held that the Applicant in that matter, whilst not being given an opportunity to respond to the allegations against him, was fairly terminated:
"However, I consider this factor as being neutral on the question of whether Mr Gurdil's dismissal was harsh, unjust or unreasonable. This is because I consider that, had Mr Gurdil been given an opportunity to respond directly to any reason relating to his capacity or conduct, it is highly unlikely that he would or could have said anything additional to what he actually did say which would have made any difference to the outcome."
[78] In cross-examination, Mr Blank conceded that it would not have been difficult to provide the Applicant with a copy of the footage and afford him an opportunity to respond.[49] The Respondent submitted however, that the Applicant had responded to the allegations via his email of 11 November 2017, even before a meeting was held with him.
[79] That email was not invited by the Respondent as a formal response, and was initiated by the Applicant to state his willingness to cooperate with managers during the investigation, and to ask for a copy of the relevant footage and an opportunity to respond to it. However, given the Applicant's email request to see the footage of the incident under consideration, the email could not have been regarded by the Respondent as a final response by the Applicant. No such response or further response was invited by the Respondent and the Applicant's requests for the footage were not met. The non-provision of the footage to the Applicant and not providing him an opportunity to respond after viewing the footage, meant that the allegations were not clearly identified to the Applicant and as such, detrimentally impacted the ability of the Applicant to respond to the allegations.
[80] A clear opportunity was not provided to the Applicant, and certainly not a clear opportunity after considering the allegations and having viewed the related video footage.
(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
[81] It was agreed that the Respondent allowed a person to be present in the role of witness or support person. However, given that the meeting did not occur in a procedurally fair manner, the addition of a support person did not overcome this.
(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
[82] The Applicant had submitted he had received one warning in relation to a "dirty" truck and that no further action was taken once the issue was rectified, and none in relation to the Applicant's driving ability, safety or any other conduct. The Respondent recorded two formal warnings and one verbal warning in 2015. There were no warnings that directly related to the circumstances leading to the Applicant's dismissal.
[83] The Applicant had not been warned about the particular conduct previously. The dismissal related to a single, discrete incident and the existence of previous warnings was not relied upon by the Respondent in relation to the dismissal. The Respondent relied on the constant caution given to drivers to operate carefully and the need to adhere to their policies.
(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
[84] The Respondent is a large company with over a thousand employees, on its own estimate.[50] This should not have detrimentally impacted on the procedures followed in effecting the dismissal. However, there were significant procedural issues in effecting the dismissal.
[85] The person who made the decision to terminate the Applicant was not involved in communicating this directly to the Applicant; the person who was charged with communicating the termination did not appear to fully recognise the omission of the required procedural fairness steps, and was unable to respond to the Applicant with any details. The footage of the alleged contravention was also shown to other employees by management to seek their acceptance of the proposed dismissal. However, as mentioned above, the Applicant himself was not given the opportunity to view the footage before the dismissal.
[86] Given the size of the Respondent and its workforce, the flawed procedures followed in effecting the dismissal impacts on the fairness of the termination. This contributes to a finding that the dismissal was unfair.
(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
[87] The Applicant contended that the Respondent is a large business with access to dedicated human resources expertise and therefore a proper and procedurally fair process should have been afforded to the Applicant.
[88] There is no evidence suggesting that the company does not have a human resources department or officer, however no human resources team was involved in the dismissal. However, access to legal advice was available and no significant defence to the lack of procedural fairness was provided.
(h) any other matters that the FWC considers relevant.
[89] It was submitted on behalf of the Applicant that all of the circumstances of the case and the dismissal should be considered when assessing fairness of the termination. It was set out that the dismissal was disproportionate to the conduct and that the dismissal had significant economic and personal consequences for the Applicant. It was submitted on behalf of the Applicant:
"61. In assessing the personal impact it is submitted that there are competing contentions that must be considered including:-
b. The potential impact on the reputation of Hanson;
c. The relevant likelihood of any further such conduct;
d. Whether dismissal was the only option open to Hanson in all the circumstances;
e. Whether there are sufficient grounds to conclude that Mr Pericich can no longer be trusted to do his job."[51]
[90] The Applicant submitted that the loss of his employment had caused him significant personal and financial issues. As described above, the Applicant supports two children with special needs, and provided a medical certificate from their General Practitioner attesting to severe autism in his seven year old child, and Klinefelter syndrome, ADHD and Severe Behaviour Disorder in one of the 19-year-old twins.[52]
[91] The severe impact of the dismissal on the Applicant's family and household income is a factor which goes to harshness.
[92] The allegations were not clearly put to him for response. He was not afforded the opportunity to view the footage of the incident prior to the dismissal. The addition of his responses after dismissal has not however, undermined the reasons supporting the dismissal.
[93] Having determined that a valid reason existed for the dismissal but that the Applicant was unfairly dismissed, due to the lack of procedural fairness afforded in the process of dismissal, it is necessary to determine whether a remedy for the unfair dismissal should be applied. In relation to remedy, s.390 of the 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."
[94] For reasons set out below, s.391 of the Act in relation to remedy is not relevant. In relation to compensation s.392 of the Act provides:
(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."
[95] Sections 390(1)(a) and (b) of the Act, are satisfied as the Applicant was a person protected from unfair dismissal, and he has been unfairly dismissed.
[96] The Applicant has made an application for an unfair dismissal remedy under s.394 of the Act, seeking in the first instance, reinstatement. Although there were statements from colleagues of the Applicant supporting his reinstatement, it was made clear by the Respondent at the managerial level that trust and confidence in the Applicant had been lost, and that this incident had been one of high risk conduct, that was in breach of the required conduct.
[97] It was submitted by the Respondent, that reinstatement, in these circumstances, was not an appropriate remedy, as the Respondent cannot be concerned that employees operating their trucks will take risks that may endanger lives.
[98] In regard to the remedy, the Applicant sought reinstatement to his former position with the maintenance of continuity of service. It was submitted that the Applicant has not secured any significant or ongoing employment since the termination of his employment however he had taken reasonable steps to secure such alternative employment.
[99] The Applicant stated that he had been offered, on 14 February 2017, casual employment as required for a total of 56 hours at $27.50 per hour. He stated that employment was not secure and that therefore he maintained his application for reinstatement with the Respondent.
[100] As noted earlier in this decision, the Applicant relied upon the decision of Fraser Murray v Reliable Petroleum Pty Ltd to support his contention that, should a valid reason be substantiated, it would not necessarily preclude reinstatement in light of other matters under s.387(h).
[101] The Respondent distinguished the current facts from the Murray case and emphasised it considered that the Applicant had not shown contrition or indeed any recognition that his conduct was inappropriate, and therefore, a warning would not have been adequate to guarantee his safe driving in the future. It was also on this basis that the Respondent vigorously opposed reinstatement. The Respondent also contended that the Applicant had found alternative casual employment.
[102] As to whether trust and confidence has been genuinely lost, the Full Bench of the Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd observed:
"So 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 impracticable, provided that such loss of trust and confidence is soundly and rationally based.
In most cases the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether the standard is reach in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by the party.
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable." [53]
[103] In the present case, it was evident that the Respondent's concern with the Applicant's conduct and their loss of trust and confidence in the Applicant was beyond "some friction and doubts". In his evidence, some of which is extracted above, Mr Blank frequently voiced his concerns about the safety practices of his drivers being of paramount importance to the Respondent, and that the Respondent continually reinforced this message of compliance with safe driving practices. Mr Blank's primary concern in respect of the Applicant's continued employment was that the Applicant did not appreciate the gravity of his conduct, or even concede that his decision to drive through the crossing when a bullet train was rapidly approaching was dangerous.
[104] Given the significant concerns held by the Respondent, it is considered that it is inappropriate for the Commission to intervene and that reinstatement is an inappropriate remedy in the circumstances.
[105] To assess an Order for compensation, it is necessary, in accordance with the decision in James Jones T/A The Pet Cemetery & Crematorium v Ms Raquel Ciuzelis,[54] to have received an assessment of how long each party considered the employment relationship would have continued.
[106] The Applicant was not afforded procedural fairness. The allegations were not clearly addressed with him prior to the dismissal. He was also not given a proper opportunity to respond with a witness present, prior to being stood down and then prior to the termination.
[107] He was also not given the opportunity to view the footage of the incident from the dash cam on his truck prior to the dismissal, nor allowed an opportunity to comment on such to the Respondent. The Applicant was denied natural justice. The Respondent is a large employer and had the ability to seek expert advice to avoid dismissal of the Applicant without allowing the required procedurally fair process.
[108] The Respondent has not however addressed the estimated period of the continuing employment relationship. Therefore, a Direction allowing for a short period to respond on this issue to allow for the compensation to be calculated, and a decision on that, to be shortly released.
Ms Kerri-Ann Fredericks of Anderson Fredericks Turner for the Applicant.
Mr Phil Copeland of Copeland Workplace Law for the Respondent.
[1] Statement and Affidavit of Darren Pericich dated 12 February 2018 at Annexure DP-03.
[2] Applicant's Outline of Submissions dated 12 February 2018 at para 9.
[4] [2017] FWC 3552 at [102] - [108].
[5] Reliable Petroleum Pty Ltd v Murray [2017] FWCFB 5843.
[6] Applicant's Outline of Submissions dated 12 February 2018 at para 17.
[7] Statement and Affidavit of Darren Pericich dated 12 February 2018 at Annexure DP-01.
[9] Applicant's Outline of Submissions dated 12 February 2018 at para 54.
[10] Statement and Affidavit of Michael McMillan dated 11 February 2018 at para 23.
[11] 4 yearly review of modern awards - Penalty rates [2015] FWCFB 6509 at [8] - [13], [17] - [18].
[12] Statement and Affidavit of Margaret Stacy dated 11 February 2018 at paras 51 - 56.
[14] Statement and Affidavit of Darren Pericich dated 12 February 2018 at paras 65 - 71, 76 - 78, Annexures DP-04 & DP-05.
Mr Darren Pericich
Hanson Construction Materials Pty Ltd T/A Hanson Construction Materials Pty Ltd [2018] FWC 1336