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[2008] FMCA 1191
Federal Magistrates Court of Australia
2008-08-29
Mr P
Original judgment source is linked above.
The applicant repeated this contention at paragraphs 38, 51 and 62 of
his submissions. 7. The respondent addressed these criticisms at paragraphs 131 to 144 of its submissions. The respondent's submissions contended that the applicant's criticism's "reveal a startlingly fundamental misunderstanding or deliberate attempt at obfuscation about the reasons why his employment was terminated" and "an ongoing misapprehension by the applicant of the case he commenced." 8. As the respondent said in submissions: * "142. It should be borne in mind that the supposed relevance of this category of documents to any fact in issue in the proceeding arises exclusively because of the applicant's assertion that no other driver was terminated for overspeeding. * 143. Thus when the respondent's Ms Magennis annexed to her affidavit documents identifying the existence of employees other than the applicant who were terminated for reasons that included speeding, the applicant unilaterally altered the parameters of the debate and would now contend (see paragraph 77) that the annexed documents do not record the termination of any other driver for "overspeeding recorded on the internal Greyhound systems i.e. VDO or tachograph - other than Brian Randall that is". The respondent submits that the applicant's conduct warrants adverse comment. In the face of the allegation that the applicant was singled out and treated differently in that no other driver was terminated by the respondent for overspeeding and being met by evidence establishing the contrary, the applicant after the cases closed has impermissibly changed the goal posts. The respondent submits that it has met the allegations and answered it." 9. I accept the respondent's submission that it met the obligation and answered it. Whilst not I am prepared to find the applicant's solicitor's "" comments by way of written submissions were mischievous they were certainly unhelpful. 10. That quality was unfortunately an all too common hallmark of the conduct of the applicant's case and here I note the repeated attempts in submissions to recast the evidence given by Ms Johnstone along with attempts, as the respondent said, to "" beyond those contained in the contentions of fact and law. There was also the particularly unhelpful practice adopted by the applicant's solicitor of advancing by way of submissions a case that was never put to witnesses for the respondent. 11. A couple of other examples illustrative of this unhelpful attitude by the applicant's solicitor (along with the tendency to make florid statements) associated with the conduct of the case are: 1. Ms Magennis gave evidence that the solicitor for the applicant had "" the respondent's HR policies to living in ""; and 2. the statement made by the solicitor for the applicant when the parties were being asked by the Court at the conclusion of the hearing to provide written submissions that he was "", "" and this was not a justice system because of the constraint on finances. 12. Suffice it say each party made criticisms of the other in submissions on issues in connection with the conduct of the case. To the extent that it is necessary to do so those criticisms are also referred to below when considering the issues.
it is necessary to set out some detail about how that system operates and what the respondent does with the information gathered from it. 4. Mr Macpherson's evidence was: * "4. The VDO system monitors driver and vehicle performance, and has an internal GPS system that can record GPS information such as GPS speed and location. * 5. Each driver is assigned an identification key which much be used to log onto the VDO system. If the ignition is turned on and the driver does not log on, the VDO system audible buzzer will sound until the driver identifies. The key is unique and identifies the driver so that Greyhound can know which driver is driving which coach. * 6. The VDO system is a box that is placed in the vehicle. It has wiring connected to a permanent power supply, the ignition ON power supply, the speed sender unit signal of the Speedometer and the engine RPM signal, brake alight signal, plus various other electrical inputs. * 7. The VDO system is designed to provide for location management, vehicle management and driver management. In particular, for each journey that a vehicle fitted with the VDO system take, the suite of information includes date and time, distance, engine hours, vehicle speed, engine speed (or revolutions per minute), trip start and end time, trip depart and arrive time, driver identification, and vehicle identification and "event" times. * 8. The VDO system records, amongst other driver violations, overspeeding. This is known as an "event". The VDO system installed in Greyhound coaches records an overspeed "event" when a vehicle is operated at a speed greater than 105 kilometres an hour
...
- 10. The VDO system is connected to the speedometer by wiring. When the VDO system reads that the vehicle is being operated above 105 kilometres per hour or more, the VDO system registers an overspeed event, and the buzzer on the vehicle dash sounds to alert the driver that he or she is overspeeding..."[4]
The overspeed notice sets out the type of offence, the date and time of the offence, the duration of the offence, the vehicle number and the maximum speed at which the vehicle was operated. The overspeed notice directs that the driver is to provide a written statement on a specified form within
3 days of receipt of the notice. The statement must explain why the vehicle listed on the notice appears to have been operated at speeds exceeding 100 kilometres per hour. As set out at paragraph 14 above, any driver who consistently or excessively exceeds speed limits will be subject to disciplinary action or dismissal. * 20. As part of the accreditation process in all states and territories in which Greyhound operates, driver and operator responses to overspeeding are audited. In particular, in Victoria the Department of Infrastructure conducts regular audits. One aspect of Greyhound's operations that is checked as part of the audit is a random sample of overspeed notices. Greyhound must show in relation to that random sample that it has investigated and addressed the overspeed. If Greyhounds is unable to show that it has investigated and addressed the overspeed, the accreditation could be revoked. Accordingly, it is important that overspeed notices are properly responded to by Greyhound's drivers so that Greyhound can demonstrate to the Department that it has adequately investigated and addressed the overspeed." 3. With that background as to how the respondent monitors its coaches and drivers, and why, I now turn to the other factual background to this matter. 4. The applicant in this case applied for employment with the respondent on 27 July 2004. As a part of that application he disclosed he suffered from type 2 diabetes. 5. The applicant commenced employment with the respondent in the position of coach captain on 28 July 2004. The applicant's contract of employment incorporated the McCaffertys Greyhound Pty Ltd Certified Agreement 2004 ("the Agreement") which was made pursuant to s.170LJ of the WR Act on 5 November 2004. 6. In its terms the Agreement provided that it "shall operate from
13 July 2004 and shall remain in force for 3 years." 7. The Agreement consists of a number of Schedules. Schedule A provides general conditions for all employees and Schedule B provides additional conditions for coach captains. The Agreement contained the following: * "1. TITLE * This Agreement shall be known as the 'McCaffertys Greyhound Pty Ltd Certified Agreement 2004'. * 1.1 AGREEMENT APPLICATION * (a) The parties to this Agreement are: * (i) McCaffertys Greyhound Pty Ltd - A.C.N. 104 326 383 (the Company); * (ii) All McCaffertys Greyhound Pty Ltd Employees and (sic) referred to in Schedules B, C, D, E, F and G of this Agreement (McCaffertys Greyhound Employees); * ... * (c) This Agreement sets out the terms and conditions of McCaffertys Greyhound Employees, no other award or agreement shall apply to McCaffertys Greyhound Employees. * ... * 1.2. PERIOD OF OPERATION * (a) This Agreement shall operate from 13th July 2004 and shall remain in force for 3 years. The nominal expiry date will be 12th July 2007. However, following certification, McCaffertys Greyhound Employees will, from the date of operation be paid the rates prescribed in this Agreement. * ... * PART 2 TERMS AND CONDITIONS OF EMPLOYMENT * 2.1 CONTRACT OF EMPLOYMENT * ... * 2.3 TERMINATION * ... * (c) Termination by the Company * The Company may terminate a McCaffertys Greyhound Employee's employment: * (i) without notice if the McCaffertys Greyhound Employee is guilty of gross misconduct as defined in Clause 2.3(g); or * ... * (g) Gross misconduct includes but is not limited to: * ... * (iii) serious neglect of duty; * 2.6 POLICIES AND PROCEDURES * (a) The Company will implement policies, procedures and staff manuals during the term of this agreement to be strictly followed by McCaffertys Greyhound Employees. * (b) The policies will be available from: * (i) the Company Intranet site; * (ii) McCaffertys Greyhound Employees' Manager / Supervisor; * (iii) McCaffertys Greyhound Employees' WLT Representative. * (c) Staff manuals will be made available from McCaffertys Greyhound Employees' Manager/Supervisor or the Human Resources Department. * ..." * PART 4 NON-STANDARD OVERTIME AND BREAKS * 4.1. CONVERSION OF NON-STANDARD OVERTIME * (a) For the purpose of this clause "non-standard overtime" means any hours outside a McCaffertys Greyhound Employee's rostered hours which have not been included on a standard roster. * (b) A McCaffertys Greyhound Employee may elect to convert non-standard overtime to time off in lieu of payment at the rate of one hour off for each hour of non-standard overtime worked. * (c) Any non-standard overtime converted to time off in lieu will not attract Annual Leave Loading. * (d) Any time taken off duty in lieu of non-standard overtime will be taken at a time convenient to the Company and the McCaffertys Greyhound Employee. * (e) Where the employment of a McCaffertys Greyhound Employee is terminated (by either party), McCaffertys Greyhound Employee will be entitled to be paid for any non-standard overtime converted to time off in lieu which has not been taken, at the rate of one hour for each hour of non standard overtime worked. * (f) All time off in lieu of non-standard overtime must be recorded on a Time in Lieu Form and approved by the manager before forwarding to payroll. * (g) In the event that a McCaffertys Greyhound Employee has time in lieu accumulated of 10 Days or more or has untaken time in lieu for a period of 18 months the Company may either require the McCaffertys Greyhound Employee to take all or part of the time owed to the McCaffertys Greyhound Employee or pay out all or part of the time as a non standard overtime payment. * ... * PART 6 MISCELLANEOUS PROVISIONS * 6.1 EQUAL EMPLOYMENT OPPORTUNITY * (a) The Company is committed to equal opportunity in employment consistent with the principles of equity and fairness and conforms to the spirit of intent of equal opportunity, anti-discrimination and affirmative action legislation. * (b) The Company accepts its responsibility to create a work environment free from discrimination and to ensure that the principle of merit operates. * (c) McCaffertys Greyhound Employees agree to comply with the Company's anti-discrimination policy contained in the Company's Policy and Procedures and Employee Hand book." 8. The respondents' policies and procedures (referred to in the Agreement) included the Greyhound Australia Drivers Manual ("the drivers manual") which set out the responsibilities of drivers employed by the respondent.[5] The drivers manual amongst other things provided as follows: * "Responsibilities of Drivers * ... * The following offences may result in termination of employment and/or the pursuit of criminal or legal charges: * Loss of licence or authorisation where this is essential in carrying out job. * ... * Gross negligence in the operation of Company vehicles e.g: * Running out of Fuel * Over revving, excess idling, speeding etc * Failure to comply with a lawful direction from a supervisor. * Breaching safety rules, policy or procedures. * ... * Failure to observe Company Policy as stated in Driver's Manual and/or Notices as issued from time to time."
24 hours of the receipt of the complaint. * 6. If the complaint is substantiated, then disciplinary action will be taken against the offending employee. This action may involve a counselling, written warning, transfer, demotion, dismissals or other appropriate action, depending on the circumstances and severity of the breach. * 7. Should a complaint prove to be false or misleading, appropriate disciplinary action will be taken against the complainant. This action will be as stated in point 6. * 8. By following the procedures it will ensure a swift response and early resolution of any breach of this policy." 3. The respondent's policies also included an Anti-Discrimination policy (Exhibit A6) which provided: * Procedure * 1. If any incident occurs in the workplace that is believed to be discriminatory, the employee concerned should immediately follow the procedures as laid out in the Grievance Policy HR006 or as outlined in Schedule A, Clause 2.5 of Greyhound Australia Pty Ltd Collective Agreement 2007. * 2. If it is impartial, of if the circumstances surrounding the complaint involve a Manager/Supervisor, then the employee concerned should immediately contact the Human Resources Department. * 3. An aggrieved employee may also choose to complete the written Grievance Statement, which is located on the Intranet under forms and forward this to the Chief Executive Officer through the Human Resources Department. * 4. The employee can also contact their state Anti-Discrimination Commission or the Human Rights and Equal Opportunity Commission at any time during this process for further information. * 5. The Human Resources Department and the appropriate Senior Manager/2 will undertake a confidential investigation of the complaint as soon as possible, or at least within 24 hours of the receipt of the complaint. * 6. If the complaint is substantiated, then disciplinary action will be taken against the offending employee. This action may involve counselling, written warning, transfer, demotion, dismissal or other appropriate action, depending on the circumstances and severity of the breach. * 7. Should a complaint prove to be false or misleading, appropriate disciplinary action will be taken against the complainant if required. This action will be as stated in point 6. * 8. By following the procedures it will ensure a swift response and early resolution of any breach of this policy." 4. On 4 August 2004 the respondent sent a letter to the applicant confirming his appointment and in summarising the main terms and conditions governing his employment. That letter from the respondent contained the following: * "The terms and conditions of your employment with the Company are bound by the McCaffertys' Certified Agreement 2004. Please read the Agreement carefully to ensure you fully understand this document. We have summarised the main terms and conditions of your employment as follows: * Industrial Instrument: McCaffertys' Certified Agreement 2004, Schedules A & B * ... * Position: Coach Captain * ... * Termination: Notice of termination by either party will be as per McCaffertys' Certified Agreement 2001, Part 2, Terms and Conditions of Employment, Clause 2.3 Termination. * ... * I hereby agree to be bound by the terms and conditions of this letter of appointment. Further, I will ensure I retrain a copy of the letter of offer and return this signed original to the Human Resources Department within 7 days." 5. The applicant signed this letter on 11 August 2004. 6. On 8 July 2006 the applicant's driving licence was suspended by Vic Roads due to concerns about his fitness to drive[6] during which time he took both paid and unpaid leave. 7. Following the reinstatement of his licence on 15 August 2006, the applicant returned to work and continued to be rostered as a coach captain by the respondent. 8. On 12 and 14 September 2006 the vehicle the applicant was driving recorded a total of 3 overspeed events which generated an overspeed notice. 9. On or around 11 October 2006 the applicant provided the respondent with a medical certificate which restricted the hours he could be rostered for duty. 10. On 9 November 2006 the vehicle driven by the applicant recorded another overspeed event which generated an overspeed notice. 11. As a result of these overspeed events the applicant was issued with request to respond to the overspeed notices. 12. The applicant responded to these overspeed notices in late November 2006. His responses were that 'Appear' does not constitute a violation of the Road Traffic Act. He was advised by the respondent his responses were inadequate. 13. On 29 November 2006 the applicant attended a doctor and obtained a medical certificate which continued the existing restrictions on the hours that he could drive.[7] 14. By that time the respondent had already directed the applicant to attend a disciplinary meeting on 30 November 2006. At that meeting where he brought a witness, the applicant had the allegations of overspeeding put to him, was given an opportunity to respond and that response was considered. Offers had been made when queries about the speed were raised to check the speedometer but these weren't taken up. There were no allegations those overspeeds occurred because of faults in the coaches. 15. The applicant was issued with a written warning which made clear any further speeding could result in the termination of his employment.[8] 16. In March 2007, the shift for the coach service the applicant drove was changed to accommodate operational demands by half an hour. 17. The applicant subsequently attended his own doctor and another doctor nominated by the respondent who confirmed the applicant could continue to be rostered for duty as a coach captain subject to a restriction on the hours. 18. On 2 May 2007 the vehicle the applicant was driving recorded three overspeed events. One of those overspeed events recorded the applicant driving at 112km/hr for 25 seconds. 19. As a result the applicant was issued with request to respond to the overspeed notice. 20. The applicant was asked for a response, which he provided as "Driver fatigue". This was deemed not satisfactory to the respondent. 21. The applicant was advised there was to be a meeting to deal with the over speed notice and his response. The applicant had a witness (his solicitor) accompany him to this meeting on 13 June 2007 was advised of the allegations against him given an opportunity to respond, that response was considered before he was told his employment was to be terminated for serious neglect of duty.
His failure to explain matters and the inherent implausibility of others left doubts over the veracity of his evidence in relation to key events.[9] 13. In summary much of the applicant's material related to his grievances (and those of other disaffected former employees) against the respondent which he candidly acknowledged in cross examination were only raised after the termination of his employment. Save for Mr Beveridge who gave his evidence in a direct and candid manner I have reservations about accepting the evidence of the witnesses for the applicant and am unable to accept it where it is in conflict with that given by witnesses for the respondent.
3 recorded overspeeds that the applicant was being spoken to about. Third Ms Johnstone was only one of a number of personnel from Greyhound to whom fell the consideration of and decision making about the matter. Ms Magennis who hold the position Vice President Human Resources and Industrial Relations and who was present at the meeting gave the following affidavit evidence (paragraph 57) and about which not one question was asked in cross examination..." 6. It was clear that Ms Johnstone found the experience of giving evidence trying. However I am satisfied she was doing her best in difficult circumstances. Those circumstances included that the cross examination of Ms Johnstone was conducted in what at times was a querulous manner and so much is clear from the following exchange: * " His position was that, "Really I'm not sure if I was fatigued. I don't remember that far back." That was what he was putting to you, wasn't it? -I don't know what he was putting to me. I can only go on what was written down. * So you were only going on what was on the form? - That's right. * And you weren't really interested in what else he might be saying to you at the meeting?---I asked for a statement and that was the statement he gave me. * Okay, and you weren't really interested in any alternative explanation that he might offer at the meeting were you? He didn't give me an explanation. * But he didn't assert he was fatigued, did he, other than on the form? ---On the form, yes, he gave it on the form. * ... * Now, what evidence do you have that Brian was fatigued?---The evidence that he wrote himself. * ... * And no one in Greyhound rang any of them (the passengers) to see if Brian was hallucinating and wandering around the road?---There was no need. Brian said himself he was driver fatigued. * Brian had put it on the form? -That's right. * Brian had put it on the form. Do you think you have some obligation to make inquiries? --I didn't think Brian was lying when he put it on. * You didn't think Brian was lying?-No. I took him on face value. * ..." 7. Having reread the transcript and having regard to the evidence as a whole I am unable to accept the applicant's submissions that Ms Johnstone accepted the respondent hadn't investigated the matter, failed to follow its own counselling procedure or that her evidence was capable of grounding the findings the applicant submitted were open.[11] 8. There is also the matter that the applicant's solicitor failed to put many of the allegations made in submissions to all the respondent's witnesses. As the respondent submitted: * "122 It is incumbent upon those persons who practice as advocates before the Courts and to whom is conferred the privileges of audience to adhere to the fundamental tenets of fairness. The applicant's solicitor, rather than complying with the obligation of "puttage" in regard to the evidence of Ms Magennis, has instead determined to advance by way of submission, a case that was never put to Ms Magennis or which she had the opportunity to meet... * ... * 201 The respondent presented Ms Magennis for cross examination. In regard to her affirmative evidence that it was she who recommended the termination and did so against the background of previous speeding and the present circumstances that combined speed and fatigue, she was asked not a single question. Thus the respondent submits that there is no evidence that the respondent failed to investigate the revealed circumstances of the incident and failed to have regard to the comments made by the applicant and on his behalf. The evidence of Ms Magennis is that collectively the respondent did so and her evidence was never challenged"[12]
As the respondent submitted: * "...Perhaps even more remarkably Ms Magennis was not cross examined by the asking of a single question on behalf of the applicant of the sole issue by which the applicant was able to enliven the jurisdiction...it was not contended in cross examination of Ms Magennis that any part of her evidence was at odds with that of Ms Johnstone."[17] 6. Finally, Ms Magennis gave evidence that: * "The reasons for Greyhound's termination of Mr Randall's employment were related to his performance and conduct as a driver. Greyhound did not terminate Mr Randall's employment for the reason or for reasons including his medical condition. To the contrary, Greyhound repeatedly made reasonable accommodations for Mr Randall's medical condition during his employment."[18]
9 October 2006 and 2 May 2007 recorded overspeed events and did so accurately. He was not challenged on that evidence. Mr MacPherson's evidence was that vehicles operated by the applicant accurately recorded speed. 3. I accept the respondent's submissions that: * "124 ...Expert evidence was given about the (VDO) system, its capabilities and limitations by Marc McPherson an employee of Sgesco-Max Instruments the company responsible for the installation of the system into the respondent's coaches. The VDO system records a suite of information for each journey taken by a coach and in particular this includes, date and time, distance, engine hours, vehicle speed, engine speed, trip start and end time, trip depart and arrive time and the vehicle identification and event times. An event includes a violation such as overspeeding....When an overspeed occur, that is to say when the coach exceeds 100kph a warning buzzer installed in the coach and connected to the VDO system will trigger a buzz that is audible to the driver. Mr McPherson's evidence was that the VDO systems in each relevant coach driven by the applicant and which recorded overspeeding events were operating correctly on the respective dates the overspeeding was recorded." 4. Mr Hoffman, the respondents' operations manager gave evidence.
He was not required for cross examination. He gave evidence about the accreditation requirements the respondent was required to meet, as a public transport operator, the conditions that can be imposed on such accreditation and what the respondent had done to comply with those requirements including installing driver and vehicle monitoring systems and why this was important to meet those requirements.
This usually will be the only direct evidence the Court will receive on that issue. If that evidence is accepted as true, then the applicant's case will fail. The reserve onus of proof does not require the Court to view the evidence of the respondent with scepticism or suspicion. Usually, the respondent's evidence is tested by cross-examination to assist the Court to decide whether or not to accept the respondent's case. 9. Section 665(1) of the WR Act provides that, if the Court is satisfied that an employer has contravened s.659 of the WR Act, the Court may make one or more of the following orders: * "(a) an order imposing on the employer a penalty of not more than $10,000; * (b) an order requiring the employer to reinstate the employee; * (c) subject to subsections (2), (3), (4) and (5), an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate; * (d) any other order that the Court thinks necessary to remedy the effect of such a termination; * (e) any other consequential orders." 10. In relation to this part of the applicant's claim the fairness or unfairness of the termination are not issues for this Court. If it was an unfair dismissal application it would have been heard in the AIRC. The case that the respondent has to meet in relation to this claim is whether the termination of the applicant's employment was unlawful. 11. There are three elements that must be established to succeed in a s.659(2) action:
The respondent submits that if the allegation were merely that the applicant was terminated because of his diabetes then there exists no evidence that the applicant's diabetes constituted a physical disability in his employment and the applicant's case would of necessity on this basis fail." 15. The respondent made this submission: * "...because it is not the existence of the physical disability that appears the gateway to unlawfulness under s.659 but rather the consequences of the disability occasioned by it or its characteristics. The applicant proved able as a diabetic for many years to discharge his employment and able to do so for months after becoming insulin dependent diabetic[19]" 16. The Court was not referred to any case that considered the particular issue raised by the parties in submissions on this matter in the context of the WR Act. However, the decisions that the Court was referred to lead to the decision of Gavlin v Renito Pty Ltd [1999] FCA 1005 which concerned the question of whether an employee had been terminated for reasons including physical or mental disability. In that case Ryan JR indicated, while it was not necessary to decide that he would be: * "...likely to find that an applicant has no onus to establish...knowledge by the respondent'..."[of the disability] [20] 17. I am mindful that for the purposes of an application alleging a breach of s.659(2) of the WR Act the applicant must establish in this Court, that: 1. their employment was terminated; and 2. the facts sufficient to prove as an objective fact the proscribed reason relied on in that subsection.;
before the onus shifts, pursuant to s.664, to the respondent to prove that the applicant's employment was not terminated for a reason or for reasons including that proscribed reason (see Bahonko v Sterjov [2007] FCA 1244 at 100).
In that case Nicholls FM found the employer had not discharged the burden of proof under s.664 and that the employee had been terminated for a proscribed reason. 15. At paragraphs [29] to [51] Nicholls FM said: * "29. The respondents submit that the termination of the applicant's employment stemmed from the decision that was made that the second respondent cease trading, due to the various difficulties that had been encountered, and that this then led to the termination of all employees including the applicant. In these circumstances, whether or not the applicant was absent due to injury, was not relevant to, and not part of, the termination. * 30. Even accepting the evidence of the third respondent that the decision to cease trading of the second respondent was taken sometime in late 2005, and certainly by February 2006, which predated the latest and relevant injury suffered by the applicant, this is not, in my view, sufficient, in all the circumstances of this case, to exclude the relevant proscribed reason (s.659(2)(a)) from the set of reasons for the termination of the applicant's employment. A clear distinction can be drawn between the decision taken by the third respondent for the second respondent to cease trading (whenever that decision may have been taken) and the termination of the applicant's employment. * 31. I am persuaded by the applicant's submissions in this regard because of (on the evidence) the view that I take about the conduct of the business involving all four respondents, the difficulties that I have with some relevant aspects of the evidence of the third respondent, and that the applicant was dealt.
49. From Mr Habibeh's evidence, letters were sent to the four other employees (these are reproduced at annexures G, H, I and J). (The best evidence is that these were all other employees involved, other than for Mr Habibeh himself, who for some purposes was also named as an employee of the second respondent). The wording of the letters sent to , in effect, all the other employees is identical:
- "We wish to inform you that All Districts Coating (Aust) Pty Ltd ABN: 66 084 767 895, will cease trading at the 13th of April 2006 and close down.
For any further information please do not hesitate to contact me at the above numbers
50. What is immediately noticeable as between the letter sent to the applicant and the letter sent to all the other employees, is that while the word "termination of employment," or words to that effect, are not directly used in the letter to the applicant, such intention is clearly implicit with the reference to an enclosed cheque as payment for notice (presumably, in context, notice of termination). Only the applicant's letter contains such a plain inference. The letters to the other employees merely inform the addressee that the second respondent will cease trading as of 13 April 2006. There is no other evidence before the Court that the other employees were sent any other letter notifying them of the termination of their employment.
51. This, even on its own, clearly reveals that the applicant was dealt with differently to the other employees at that time. In evidence, the third respondent stated that "termination payments" were given "in hand" to the other employees at the relevant time. There is no other evidence before the Court to corroborate the third respondent's evidence in this regard. However, even if this was the case, what still remains clear is that the applicant was dealt with differently to the other employees even in this regard, as at the time of the stated ceasing of operations of the second respondent. While all the other employees "continued" in their employment (albeit formally for the first respondent) and in one case, on what is, in effect, a contractual basis, only the applicant was in the position of not continuing in employment for any of the respondents."
The applicant nonetheless says that the respondent declined to undertake a proper of sufficient investigation of matters raised by him or on his behalf in the meeting. * 180. It is by no means clear from the applicant what it was that the company did not do that it was obliged to do.
The applicant contested the contention that the company had investigated the matter at all. The respondent begs to differ. The respondent investigated the matter by calling for the applicant to give his explanation in the Written Request of Statement, which he did. In response to this step in the investigation, the applicant explained his overspeeding by giving the reason as "driver fatigue". The next step in the investigation by the company was to summon the applicant to a meeting to flesh out this two-word explanation. This it did by permitting the applicant to attend the meeting with a witness. As part of the meeting process the applicant's witness appears to have again been a very strong advocate for the applicant's interests. * 181. The applicant took issue with the accuracy of the speed VDO system and the bus speedometers. The applicant's lawyer did not suggest that the speedometer in the applicant's coach on the date of the service was incorrect. The applicant says that his lawyer argued at the meeting that the provision of information by the company was insufficient to enable a driver to respond to an event such as was being asked for. As pointed out earlier in this submission, an examination of the overspeed notices disclose a reasonable amount of information to assist a driver in identifying the circumstances and they include the date, the time and the coach number in service, the duration of the overspeed and the speed recorded. The extent of this information had been made available to the applicant from the moment he was notified of the overspeed notices. No evidence has been advanced by the applicant that he asked for the provision of nay further information prior to completing his response to the overspeed and proffering as the reason "Driver fatigue". * 182. The respondent submits that it was legitimate for it to have terminated the applicant in light of the information given to it by the applicant and the Q&A session conducted with him in the presence of and with the assistance of his legal representative. No request for an adjournment of the proposed meeting was made either before or in the course of the meeting or prior to the meeting being adjourned by the respondent to enable it to consider its decision. Moreover any failure by the respondent in the manner of the termination, as opposed to the reasons for the termination was a matter for pursuit in the Australian Industrial relations Commission pursuant to the unfair dismissal provisions, had the applicant been so inclined." 10. Unfortunately for the applicant the ineluctable conclusion from the evidence is that this part of the applicant's case could be said to be as the respondent submitted a "conspiracy theory" in that the applicant appears to have convinced himself of it after the event. 11. The respondent had contended that the allegation made by the applicant was inherently unlikely as: * "Much of the applicant's evidence comprised supposition and apparent suspicion as to the motives of his employer.
A substantial difficulty is that in the face of the evidence, there is no basis in fact upon which the suspicions and suppositions aired by the applicant can be supported. The respondent disavowed any additional burdens or the existence of any operational difficulties occasioned to it in managing the applicant's requirements and the respondent was never challenged on its evidence."[22] 12. As the respondent submitted Ms Magennis was not cross examined about the "sole issue" by which the applicant was able to enliven the jurisdiction of this Court. I accept her evidence[23]. In my view it is inherently improbable that the respondent would have terminated the applicant for the reason or for reasons including his disability having regard to the matters set out above and noting that:
The respondent's submissions were the reasons for termination were for serious neglect of duty and in terms of this part of the applicant's claim said: * "18. In terms of disciplinary matters the applicant was entitled to expect to be accorded treatment in conformity with the respondent's Counselling & Disciplinary Policy...The application of the policy, indeed any policy, is dependent upon the revealed circumstances of a given situation...The respondent submits that such parts of the policy that were relevant to the revealed circumstances concerning the applicant were applied." 6. The respondent then went on in submissions to deal with compliance with its policies at paragraphs 19-35 and 180-182. 7. Given the stated reasons for termination I now turn to consider the authorities on this issue. 8. In Blyth Chemicals v Bushnell (1933) 49 CLR at 81-82 it was said misconduct justifying summary dismissal must be: * "Conduct which, in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee. ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not sufficient that ground for uneasiness as to his future conduct arises." 9. In Laws v London Chronicle [1959] 2 All ER 285 at 287 it was stated: * "...if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service." 10. In Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117 ("Rankin") at 250 Gillard J summarised the law as follows: * "The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature." 11. Gillard J in Rankin said an employer may dismiss an employee summarily if the employee is negligent in the course of the employment. His Honour said: * "On the other hand, there is a good ground for the dismissal of an employee if he is negligent in the course of his employment. However, it would indeed be a very grave case of negligence, causing substantial damage, to justify dismissal for a single act of negligence. As a general proposition, the neglect would have to be habitual." 12. His Honour referred at [334] to the decision in Baster v London and County Printing Works (1899) 1 QB 901 where at 903, Darling J said - * "Neglect as often arises from forgetfulness as from anything else; and, if the forgetfulness is with respect to an important thing it may well, in my view, be good ground for dismissal of the servant without notice. I do not say that it would be a good ground for dismissal in every case. Some trivial acts of forgetfulness might not even justify a complaint or remark; but to forget to do a thing which, if not done, may cause considerable damage to the master, or to his property, or to fellow servants, may be a serious neglect of duty. * ...
The lives of hundreds of [people] may be sacrificed because of something done, or not done, in a moment of forgetfulness by a man in change of machinery. To any one who knows about the working of mines and railways in this country, and remembers that a moment of forgetfulness may cost the lives of a hundred men, it is impossible to give weight to the contentions put forward for the appellant - and forgetfulness is not neglect unless it is habitual, and that forgetfulness whilst in charge of complicated machinery should be treated with exceptional leniency."
His Honour adopted the comments of Smithers and Evatt JJ in North v Television Corp Pty Ltd (1976) 11 ALR 599 at 609 that: * "Until the terms of the contract are known and identified it is impossible to say whether or not any particular conduct is in breach thereof or is a breach of such gravity or importance as to indicate a rejection or repudiation of the contract. One cannot begin the inquiry without ascertaining what work ... the employee was employed and had undertaken to perform. It is also necessary to ascertain what particular obligations the parties had agreed upon as important or even vital." 2. In McDonald v Parnell Laboratories (Aust) [2007] FCA 1903 ("McDonald") Buchanan J in dealing with a claim by a former employee of unlawful discrimination on the grounds of family responsibilities considered the cases examining 'misconduct' 'serious misconduct' and 'serious and wilful misconduct' beginning at paragraph 48 of His Honour's decision. * "48. The terms 'misconduct', 'serious misconduct' and 'serious and wilful misconduct' are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term 'serious misconduct' is under consideration an evaluation of what conduct represents 'serious' misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied." 3. Buchanan J then went on at paras [49] - [53] to review decisions where the phrases "serious and wilful misconduct" and "serious misconduct" were considered. At paragraph [54] His Honour considered the decision of Gillard J in Rankin and extracted paragraphs [239] to [254] from that decision as of particular relevance to the matter before him. 4. In Rankin Gillard J noted at [240] that there is no rule of law that defines the degree of misconduct which would justify dismissal without notice. At paragraph [254] His Honour noted: * "[254] ... the authorities do establish that there are offences which justify dismissal but which would not, in themselves, show that the employee was intending not to perform contractual obligations in the future. There may be an example of a one-off serious act of misconduct which would justify dismissal, even though the probabilities were high that it would not occur again." 5. In McDonald Buchanan J found at [54] that the applicant's actions in that case that led to the termination did amount to misconduct and at [63] confirmed that misconduct provided a "sufficient foundation for her summary dismissal". 6. In this case Mr Hoffman gave evidence about the accreditation requirements the respondent was obliged to meet and the possible adverse consequences of a breach of these including a loss of accreditation and inability to operate a coach transport business. * "4. In order to operate, Greyhound must maintain Operator Accreditation (accreditation) in the various states and territories. Each state and territory has its own accreditation requirements that Greyhound must meet. For example, the Public Transport Competition Act 1995 (Victoria) (PTC Act) provides for accreditation of operators of public transport in Victoria. Now produced and shown to me and marked "AH1" is a copy of the PTC Act. * 5. The PTC Act applies to a road transport passenger service, which is defined to be a service consisting of the carriage of passengers for hire or reward by a bus. Accordingly,, Greyhound is a road transport passenger service for the purposes of the PTC Act as Greyhound operates within, or partly within, Victoria. * 6. The purposes of accreditation under Part 2 of the PTC Act is to attest that the accredited person is considered to be a suitable person to operate a road transport passenger service of the kind to which the accreditation relates. It is also to attest that the accredited person is considered to have the capacity to meet any prescribed standards relating to: * (a) the ability to provide road transport passenger services; * (b) safety of passengers and the public; * (c) service to passenger; * (d) vehicles and equipment (including their design, service, maintenance and condition; and * (e) any other prescribed matter. * 7. Public Transport Safety Victoria within the Office of the Director of Public Transport (ODPT) administers bus operator accreditation on behalf of the Department of Infrastructure. Under the PTC Act, a person may apply to the Safety Director for accreditation, and after considering prescribed matters, the Safety Director may either give or refuse accreditation. Accreditation must be maintained and renewed. * 8. The Safety Director may take action against a road transport passenger operator if the operator has failed to have a driver monitoring program that includes a record of complaints against drivers of public passenger vehicles operated by the road transport passenger operators, action taken by the road transport passenger operator regarding counselling, discipline and response to complaints and infringements against the PTC Act, the Road Safety Act 1986, the Transport Act 1983 and any regulations under those Acts. * 9. The Safety Director may also take action against a road transport passenger operator if the operator fails to have measures in place to ensure that drivers of public passenger vehicles operated by the operator are made aware that they are required to comply with section 59(1)(c) of the Road Safety Act 1986 (which relates to inspection of driver log books), or any other specified law, and to have appropriate procedures in place to monitor and record compliance. * 10. If the Safely Director is satisfied, based on the criteria for taking action set out inn paragraphs 7 and 9 above, that there is proper cause to take action, the Safety Director may impose new conditions on the accreditation, shorten the accreditation period, suspended the accreditation or cancel it immediately. In addition, the Safety Director may disqualify the operator from holding an accreditation. * 11. In accordance with the accreditation requirements set out above, Greyhound has installed on all of its buses a driver and vehicle monitoring system. In many instances it is called the "VDO", however it may also be a "Tripmaster" or "Tachograph" system. The VDO system has been installed and it's maintained by Sgesco-Max. Sgesco-Max is an electrical and electronic vehicle system specialist. * 12. To operate in Victoria, a Greyhound vehicle must operated (sic) in accordance with the accreditation requirements of the PTC Act regardless of which state that Greyhound vehicle is physically in at any one point in time. For example, a Greyhound coach being driven in Sydney must be operated according to Victorian accreditation requirements under the PTC Act, or Victorian accreditation could be suspended or cancelled. This is the case even though the coach is not operating in Victoria. * 13. Other states and territory in Australia in which Greyhound operates have similar accreditation requirements to those outlined herein and in the PTC Act for Victoria."[27] 7. Ms Magennis gave evidence which made clear why responding to incidents such as those that the applicant was involved in was important. * "5. As part of the accreditation process in all States and Territories in which Greyhound operates, driver and operator responses to overspeeding are audited, which audits being prevalent. In responding to an audit, Greyhound must show in relation to a random sample of overspeed notices that it has investigated and addressed each overspeed. Failure to do so may result in Greyhound being issued with a notice to address the issue or in a more extreme case, accreditation may be revoked. * 6. It is for this reason that each driver who receives an overspeed notice is required to respond in a manner that enables Greyhound to understand the reason for the overspeed and if necessary to provide an explanation to those responsible for conducting the audit. * 7. Provided that the driver provides an explanation which enables Greyhound to understand the circumstances of the overspeed, commits to avoiding a recurrence of the overspeed and generally furnishes Greyhound with an (sic) reasonable explanation, then generally speaking Greyhound will be satisfied with the response, particularly for first time or irregular occurrences. * 8. By comparison, an employee who does not take the issue of passenger safety seriously and chooses to make light of the issue by refusing to respond to an overspeed notice in a reasonable manner will be subject to discipline action which may result in the termination of their employment."[28] 8. Counsel for the respondent in opening noted the applicant: * "...acknowledged himself in the witness box that of there was a recurrence of overspeeding or a recurrence of what falls under the rubric of insubordination, then there would be a further investigation and it may lead to further disciplinary action, including termination. * ... * He continued to work that shift and he continued to work that shift up until the time of his termination and the termination was wrought by the consequences of a second set of overspeed which were recorded as having on 2 May 2007. In respect of one of the three over speeds the applicant was recorded as having travelled in his coach for a period of 25 secs whilst the coach was travelling at 112 kilometres per hour. * What did the respondent do in response to this? It did what it had done previously. It conducted an investigation. It requested the applicant to furnish it with a request statement, that is to say a written statement as to his reasons for the over speed and this the applicant did by writing two words "driver fatigue" on the notice...as part of its investigation it did what it did the year before. It notified the applicant that it wished to meet with him. It notified the applicant that he was entitled to present with him a witness... * Mr Randall's contest with the VDO system was that much of the information is electronically gathered whilst the coach is in service and relayed in a manner that the applicant or a driver does not have real time identification of all the information that regulates and calibrates and records the events happening in the coach."[29] 9. In submissions the applicant repeatedly took issue with alleged "deficiencies" in the VDO system. The applicant also took issue with the respondent's evidence of other drivers who had been subject to disciplinary action for overspeeding by suggesting that in several of those cases the overspeeds had been detected by police or speed cameras. Leaving to one side that this ignores the seriousness of any incident of overspeeding and that these comparisons were raised after the event this also ignores the absence of evidence capable of persuading me that the applicant denied overspeeding at the meeting on 13 June 2007. Indeed there is evidence he suggested during the meeting the overspeeds may have been due to going down hills. 10. Moreover, to the extent the applicant sought to advance a case after the event about those issues I accept the respondent's submissions that: * "194. The evidence of Mark McPherson sufficiently addresses the allegation of insufficient calibration of the vehicles. * 195. ...in respect of none of the vehicles driven by the applicant the subject of the overspeeds in 2006 and 2007 or indeed in respect of any other coach driven by the applicant during the course of his employment with the company has he produced any driver report made by him identifying a problem with any part of the VDO operational system...If the applicant was aware of problems associated with coaches that he drove as part of the services operated for his employer then an obligation resided with him to bring such matters to the attention of his employer... * ... * 198. The use and reliance by the respondent on the ground of fatigue was a reasoned and rational response given that it was the reason offered up to it by the respondent...." 11. In cross examination the applicant's solicitor asked Ms Johnstone whether she had spoken to passengers on the coach service when the applicant was recorded overspeeding. The solicitor for the applicant also asked questions in cross examination of Ms Johnstone and Ms Magennis about whether they had checked the accuracy of the VDO system. In contrast confronted with evidence from Mr Macpherson who had deposed to the accuracy of those recordings the solicitor for the applicant asked the fatuitous question (given his client had never claimed the buzzer wasn't working at the termination interview) whether the buzzers were working when the coaches were on the road. 12. Whilst the applicant deposed he had concerns with speedo calibration and the VDO system his evidence was he made no report of deficiencies with the coach the subject of the overspeed events before or at the time of the termination. 13. To the extent queries were raised at the meeting the applicant's own evidence was there might have been "a couple of hills in the area so that might be the explanation" for the overspeeding. 14. When the applicant had raised issues during the meeting Ms Johnstone deposed: * "57. I said to Brian that he had not raised concerns regarding the validity of the speed monitoring instruments on his written statement, and had mentioned driver fatigue only. * 58. I explained to Brian that I was particularly concerned because he had had overspeeds previously and Greyhound has a duty of care to passengers as well as drivers and other road users. One overspeed lasted 25 seconds, during which time, as Brian acknowledged in his statement of explanation, he was experiencing fatigue. This is a dangerously long period for a large vehicle carrying
16 passengers to be operated over speed by a fatigued driver. It raised a matter of concern regarding the potential safety of both Brian and passengers and this concern arose irrespective of the speed the coach was travelling. In addition to dangers to himself and others Brian's fatigue had the potential to exposes (sic) Greyhound to various statutory and other legal liabilities. * 59. Towards the end of the meeting, Mr Willoughby-Thomas said he assumed that Brian's overspeeds were due to a momentary period of driver fatigue." 15. Contrary to the applicant's claims in submissions the respondent did investigate the overspeed incidents. The interview with the applicant (who was accompanied by his solicitor and who I am prepared to find said the overspeeds were due to "a momentary period of driver fatigue"[30]) formed part of that process. As the respondent said in submissions: * "180. It is by no means clear from the applicant what it was the company did not do that it was obliged to do...The respondent investigated the matter by calling for the applicant to give his explanation in the Written Request for Statement which he did. In response to this step in the investigation the applicant explained his overspeeding by giving the reason "Driver fatigue". The next step in the investigation by the company was to summon the applicant to a meeting to flesh out this two-word explanation. This it did by permitting the applicant to attend the meeting with a witness. As part of the meeting process the applicant's witness appears to have been again a very strong advocate for the applicant's interests. * 181. The applicant took issue with the accuracy of the speed VDO system and the bus speedometers. The applicant's lawyer did not suggest that the speedometer in the applicant's coach on the date of service was incorrect. The applicant says that his lawyer argued at the meeting that the provision of information by the company was insufficient to enable a driver to respond to an event such as being asked for. As pointed out earlier in this submission, an examination of the overspeed notices disclose a reasonable amount of information to assist a driver in identifying the circumstances and they include the date, the time and the coach number in service, the duration of the overspeed and the speed recorded.
The extent of this information had been made available to the applicant from the moment he was notified of the overspeed notices. No evidence has been advanced by the applicant that he asked for the provision of any further information prior to completing his response to the overspeed and proffering the reason "Driver fatigue". * 182. The respondent submits that it was legitimate for it to have terminated the applicant in light of the information given to it by the applicant and the Q&A session conducted with him in the presence of and with the assistance of his legal representative. No request for an adjournment of the proposed meeting was made either before or in the course of the meeting or prior to the meeting being adjourned by the respondent to enable it to consider its decision..." 16. On the information available to the respondent the applicant's circumstances included 7 instances of overspeeding, a background of a previous warning, an admission of fatigue on a coach service carrying 16 passengers on a public highway by a driver who claimed to be fatigued where there had been no reports of defects with that service, there had been offers to check speedo readings previously and there was no objective evidence to suggest other lines of inquiry than those pursued at that meeting. 17. In the context of the allegations made by the applicant in this matter about the respondent's requirements for compliance with its policies and directions the comments by the Full Bench of the AIRC in Woolworths Limited (t/as Safeway) v Cameron Brown (2005) 145 IR 285 are apt. 18. The Full Bench said at [24]: * "In the modern era employees face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the mostly obvious examples. Employees face potential liability arising from their common law duty of care to their employees and to members of the public. Employees may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary for employees to put in practice these policies with which employees must comply to facilitate the employer's compliance with its obligations and duties."
His driving will be monitored. If [the applicant] speeds again, an investigation will be conducted that may lead to ... dismissal". 22. Contrary to the extraordinary submission made on behalf of the applicant[34] the respondent did not condemn the applicant for the "occasional inadvertent overspeeding". Indeed I find the converse was the case. This was a matter about which the applicant had been warned previously and involved on the information available to the respondent at the time speeding on public highway of a coach service carrying
16 passengers. 23. The decisions to which the Court was referred led to the decision in Alidair Limited v Taylor (1977) ICR 446 where Bristow J held: (at 453-54): * "In our judgment there are activities in which the degree of professional skill which must be required is so high, and the potential consequences of the smallest departure of that high standard are so serious, that one failure to perform in accordance with those standards is enough to justify dismissal. The passenger-carrying airline pilot, the scientist operating the nuclear reactor, the chemist in charge of research into possible effects of, for example, thalidomide, the driver of the Manchester to London express, the driver of an articulated lorry full of sulphuric acid are all in situation in which one failure to maintain the proper standard of professional skill can bring about and make a disaster." 24. Importantly for present purposes Ms Magennis gave evidence that: * "Given that an overspeed canvases an inherent increased likelihood of placing passenger and road user safety at risk, if a driver refuses to respond appropriately and seriously to the overspeed notice or provides an unsatisfactory reason for the overspeed, the company's accreditation may be at risk and more serious disciplinary action may be warranted. This can and has in the past included performance counselling and/or termination of a driver's employment."[35] 25. By their very nature allegations of overspeeding involving large buses transporting members of the public on Australia's roads are serious matters. 26. However, in my view on the balance of probabilities there is sufficient evidence that the applicant's conduct constituted serious neglect of duty as set out in the Agreement. I am satisfied the applicant's conduct did involve overspeeding on repeated occasions. I am satisfied this was a matter about which the applicant had been previously warned.
The conduct occurred in situations where if there was non compliance with safety and regulatory requirements this may have led to considerable damage to the respondent (let alone the passengers or public if there had been an accident) and where the applicant had proffered fatigue as the response during the investigation into the overspeeding and this was the reason the applicant's employment was terminated. 27. Mindful of the terms of the Agreement, and that it is an agreement between the parties, in my view the applicant's conduct could not be said to be some "trivial act of forgetfulness". The matter involved an employee who had been warned as a result of previous incidents of overspeeding. The matter involved an employee who provided an explanation of 'Driver fatigue' when called upon to explain the most recent notice, who at the time had charge of a large coach on a public highway carrying 16 passengers. The matter involved an employee where the allegations of a serious nature were investigated by way of interview and meeting the results of which left the respondent with real concerns about not only the applicant's responses but that it had little other option (given what had gone on previously) than to do what is said could happen in November 2006 (were it to happen again) having regard to the possible consequences of speeding or driving while fatigued. The matter involved the respondent doing what the Agreement in any event reserved to it the right to do. 28. I accept the respondent's submission that the reasons expressed to the applicant identified the conduct that constituted neglect of duty. I accept that the applicant's conduct had the capacity to injure the respondent's reputation and potentially visit on it far more extensive and serious consequences. I accept that by reason of the repeated instances of overspeeding against a background of a prior warning...[that had] put the applicant on notice about the jeopardy to his continued employment in the event of a recurrence ...[the respondent did not] breach the Agreement or the contract. Moreover, having regard to the above matters in my view it could not be said the action did not warrant the sanction and penalty imposed by the respondent.[36] 29. Turning to the applicant's claim of a breach of implied duty of trust and confidence the applicant had cited several local and overseas authorities in support of his submission that consistent with the implied obligation that an employer will not without reasonable care, conduct itself in a manner likely to destroy the relationship of trust and confidence, the respondent's actions involved conduct which did breach that implied duty. 30. The applicant had relied on amongst other decisions Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney NSW Supreme Court, 19 February 2007, Rothman J [2007] NSWSC 104. 31. In that decision Mr Russell, was dismissed on 31 January 2003 from his duties as Director of Music at St Mary's Cathedral, following dismissal of criminal charges in 2000 and an internal investigation by the Roman Catholic Church (the Church) into alleged sexual misconduct. Mr Russell commenced proceedings in March 2006.
He sought damages for breach of contract, in particular for breach of allegedly implied terms of good faith and/or mutual trust and confidence. Alternatively he sought damages for wrongful dismissal. 32. Rothman J considered that previous Australian case law had not ruled that the implied duty of good faith exists and had not ruled at an appellate level that the implied duty of trust and confidence exists, although there was some existing judicial support at lower levels. 33. Rothman J held that the implied duty of trust and confidence was a duty, not to conduct oneself without reasonable and proper cause in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. His Honour held that the duty is mutual and is an aspect of the trust and confidence which is essential for the employment relationship. 34. His Honour held that the Church had a duty to ensure that the investigation was carried out with 'prudence, caution and diligence' to avoid adverse consequences to the other party. However, relevantly for present purposes Rothman J said at [141] that: * "[A]lmost by definition, the implied duty, not to act to destroy the relationship of trust and confidence, will not interfere with the right of a party to a contract of employment to terminate the contract." 35. In conclusion, Rothman J found that: * the contract of employment between the Church and Mr Russell had an implied duty of good faith. * the contract also had an implied duty that the Church would not, without proper and reasonable cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties. * the Church had breached the implied duties and had wrongfully dismissed Mr Russell but that no damage was sustained as a result of the breaches. 36. In McDonald Buchanan J considered a similar claim relying on an alleged implied term of mutual trust and confidence. 37. His Honour expressed reservations that such a term would meet the tests for implication in B.P Refinery (Westernport) Pty Ltd v Hasting Shire Council (1977) 180 CLR 266 at 283 but said in any event: * "...However that may be, in many cases in which the suggested term is sought to be invoked it will collide to some extent or another with express terms of the contract of employment. In the resent case, it would be of no avail to suggest that such an implied term restricted a right of termination in accordance with the express terms of the contract of employment." 38. The duties referred to in Russell do not interfere with the right of a party to terminate the contract. The issue that gave rise to the breach of the duty of good faith in Russell was the failure by the Church to interview a witness face to face. 39. The ground raised in submissions on this issue was that the respondent failed to exercise prudence, caution and diligence in investigating the allegation of overspeeding.[37] 40. I have already found there was sufficient evidence for the respondent to be satisfied to the requisite standard and to have come to the conclusion that it did. 41. The only evidence the applicant pointed to for his submissions on this issue was the assertions made regarding what could be made of Ms Johnstone's evidence. For the reasons already referred to those submissions are not a fair or correct interpretation of that evidence and I reject them as I do the assertion that the respondent failed to exercise prudence, caution or diligence. 42. Contrary to the applicant's submission Mr Macpherson's evidence was the speed devices were accurately recording and accurately recorded the overspeeds that the applicant was confronted with and asked to explain. Neither Ms Johnstone nor Ms Magennis had put to them that they had fabricated the overspeed notices. 43. In the circumstances the implied duties contended for (to the extent they didn't defer to the terms of the contract) would require the respondent to investigate the complaint and not act without proper and reasonable cause. I am satisfied that they did act with proper and reasonable cause. The respondent had no reason prior to the meeting to suspect that the applicant questioned either the occurrence of the overspeed or that his explanation of "Driver fatigue" was other than genuine. 44. When the veracity of the recording equipment was called into question the applicant's allegation was interrogated and found wanting. It was clear the rejection of the applicant's alternative explanation that was proffered at the meeting was not unreasonable as overspeeds would have been recorded across the coach service in question were that the case. This was made plain to the applicant at the meeting on 13 June 2007. Moreover the ground of fatigue was not one invented or constructed by the respondent and was one it was entitled to take at face value. The evidence is that the meeting on 13 June 2007 (which was a part of the investigation) considered the applicant's explanations and found them wanting. 45. Unlike Russell in this case there was no suggestion on the evidence that the applicant had not interviewed a complainant or not done something the applicant had raised in his response or driver reports. There was no evidence having regard to what was before the respondent that ought to have suggested other reasonable avenues should be pursued or that it hadn't made proper inquiries. The applicant's own evidence is his explanation for the overspeeding was "Driver fatigue" but he failed to explain to the respondent then or to this Court why he says now that was incorrect. 46. I am satisfied that the evidence shows the respondent on a bona fide basis formed the view having received the overspeed notice, having sought an explanation from the applicant, considered that response, given him an opportunity to explain that response, brought to his attention the queries it had with that along with the concerns it was left with and given him an opportunity to explain and then considered those responses before making a decision complied with any implied duty that hadn't already deferred to the express provisions of the contract. 47. In my view the pursuit of disciplinary proceedings against the applicant in good faith (and there is no evidence capable of persuading me on the balance of probabilities to the contrary) and on a proper prima facie evidentiary basis (and there is sufficient evidence here to find that is the case) could not be said to amount to a breach of any implied duty. 48. As the respondent submitted (and I am satisfied this is the case): * "The applicant did not prove according to the requisite standard that the allegations of speeding were made by the employer knowing them to be false or being careless as to the truth or falsity of the allegation or for the purpose of using them as a mask to hide a desire to terminate the employment because of the (alleged) adverse impact to it of the applicant's restricted hours occasioned by his medical condition..."[38] 49. Given this, the existence of express terms of the contract upon which the respondent acted and for the reasons set out above the other claims made by the applicant that the respondent breached the applicant's contract of employment or any implied term of trust and confidence or good faith also fail.
40. In breach of its duty of care, the Respondent:
- (a) failed to ensure that the terms of the McCaffertys Greyhound Pty Ltd Certified Agreement were adhered to;
- (b) failed to ensure that the terms of the Applicant's contract of employment were adhered to;
- (c) failed to ensure that equal opportunity principles were applied;
- (d) allowed the Applicant's contract to be wrongfully terminated;
- (e) failed to take any action to preserve or restore mutual trust and confidence;
- (f) failure to ensure that the Applicant was accorded due process;
- (g) failed to act on the basis of accurate information;
- (h) failed to act on the basis of objective fact;
- (i) failed to ensure that the Applicant's employment was not terminated on the basis of untrue, trivial or contrived allegations or in circumstances which were harsh, unjust or unreasonable;
- (j) failed to monitor and controlled the actions of its human resources personnel."
It was the applicant's submission: * "we can say with certainty that an employer has a duty of care to provide accurate information to employees." 4. In that case Mr Cornwell was employed by the Department of the Interior and the ACT Government between 1962 and 1994. In 1965, his manager advised him that he was ineligible to join the Commonwealth Superannuation Fund. This information was incorrect and Mr Cornwell successfully argued in the High Court that he should have been allowed to join the superannuation scheme. 5. Whilst the case dealt with an action in negligence and when it accrues for the purpose of limitation acts, beyond the precedent value of such a case where a Court was considering negligent advice about superannuation I am unable to see its relevance to this matter. 6. The applicant submitted: * "185. At very least therefore, the assertion by Greyhound that Brian Randall was speeding while fatigued while having failed to make any reasonable enquiries regarding the accuracy of the assertion was a negligent misstatement. Brian Randall suffered damage as a result of that negligence because he was dismissed from his employment as a result. There is also the issue of aggravated and exemplary damages. * 186. Given the congruence between the duty in tort and the implied contractual obligation referred to by Higgins CJ, it is a small step to extend the contractual obligation endorsed by Rothman J in Russell to act with prudence, caution and diligence into a duty of care in similar terms. * 187. We submit that it is open to the Court to so find and if it did, then the manifest failure by Greyhound to adhere to its own policies [including its Anti-discrimination and Counselling and Discipline policies] - as to which see Part 3 Section A and B]- and its failure to exercise good faith and fidelity - as to which see Part 3 Section C and D], would constitute negligence." 7. In submissions the respondent's position was that Cornwell was irrelevant to the case before the Court and: * "208. There is no reported or to the knowledge of counsel for the respondent any decided authority to support a proposition that a cause of action will sound in negligence for a breach of a certified agreement. * 209. The respondent did not owe the applicant a duty of care that included obligations set out in the applicant's Contentions of Fact and Law at paragraph 38.[a] to 38[g]. In any event the applicant failed to prove the alleged particulars of amounting to negligence. * 210. As the respondent did not owe the applicant a duty of care as contended, and even if such duty of care were owed to the applicant, the respondent has not breached any such duty of care and the applicant is not entitled to any damages for breach of a duty of care." 8. In Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 Jessup J at [324]-[326] said: * "That an employer is under an obligation unproved by law, to take reasonable care for the safety of employees is well established. There is no shortage of authority for the proposition that a source of that obligation is a term which the law implied into all contacts of employment... * ... * The employer's contractual duty arising at common law to provide a safe system of work etc is a duty to take that degree of care which is reasonable in all the circumstances and thus, in point of content, corresponds with the like duty arising under the law of tort..." 9. The respondent did not take issue with this. Contrary to the applicant's submissions[45] the respondent acknowledged that the law recognises the duty of care it owed to the applicant to provide a safe place and system of work.[46] 10. That is not the case put by the applicant here. The applicant's submissions appear to suggest that an employer has a duty of care to provide accurate information to employees. The applicant's claim in this regard appears from the submissions (as opposed to the contentions) to rest on the assertion made therein that the respondent "failed to make any reasonable enquiries regarding the accuracy of the assertion" of overspeeding on the applicant's part_._ 11. Leaving to one side whether there is such a duty the applicant's claim in this regard faces a number of insuperable difficulties the first of which is that he failed on the evidence for the reasons set out earlier. The applicants own evidence detailed the enquiries made by the respondent. There was nothing capable of persuading me it was not reasonable for the respondent to rely on the information gathered during the course of the investigation. The gloss that the applicant seeks to put on reasonable in submissions does not render them unreasonable after the event. In any event I note the respondent's submission that the applicant failed to prove the particulars amounting to the negligence nor was the Court pointed to any evidence of an objective standard said to have been breached. 12. The difficulty with the applicant's claims (to the extent that they were made in the application rather than in submissions after the hearing) that a failure to adhere to policies and to exercise good faith and fidelity would constitute negligence are highlighted in his own submissions at paragraph [186] wherein the Court is asked to "extend" the contractual obligation it was submitted was "endorsed" in Russell "into a duty of care." 13. Leaving to one side the absence of direct authority for taking such "a step" the absence of evidence justifying it in any event means the claim cannot be made out.
The respondent has sought costs and sought to make further submissions on this issue. 4. In the circumstances I will hear the parties on the issue of costs.
The respondent will have 14 days to make any submissions it may wish to make in relation to costs and the applicant a further 14 days to respond and then the respondent a further 7 days for anything in reply. Unless the parties make a request to the contrary in those submissions the application for costs will be heard on the papers. 5. For these reasons I make the orders set out at the beginning of these reasons for judgment.
I certify that the preceding two hundred and fifty-two (252) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
[1] The applicant had sought to rely on notes taken by his solicitor at those meetings but these were not admitted into evidence.
[2] Para 118 of respondent's submissions
[3] see para 187-188 of respondent's submissions
[6] Exhibit R1 paragraphs 8 & 9 affidavit of L Johnstone filed 15 February 2008
[7] Exhibit A4 annexure O affidavit of B Randall filed 25 January 2008
[9] see para 106 of respondent's submissions
[11] see for example para 10, 153 and 174 of applicant's submissions
[12] para 122 -201 of respondent's submissions
[15] (MM1-MM5) - R3 affidavit filed 28 February 2008
[17] Para 120 of Respondent's submissions
[19] Paragraph 69 Respondent's submissions
[20] Gavlin v Renito Pty Ltd [1999] FCA 1005 at paragraph 32
[21] The applicant relied on the chronology at para 131 of his submissions
[22] Para 196 of Respondent's submissions
[23] See inter alia Respondent's submissions at para 121 referring to para 61 of Exhibit R2
[25] Galvin at 28 citing Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617
[26] Galvin at 28 citing Mason J in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 617
[29] Transcript 4 March 2008 Line 33 P-113 to Line 20 P-116
[33] MM 11 to affidavit of ms Magennis filed 15 February 2008 exhibit R2
[34] Paragraph 44 of applicant's submissions
[35] Paragraph 12 Affidavit filed 28 February 2008 Exhibit R3
[36] Footnote 66 to Para 222 in respondent's submissions
[37] see para 172-177 of Applicant's submissions
[38] Para 192 of respondent's submissions
[39] Para 221 of respondents submissions
[40] Paragraph 144 Applicants submissions
[41] Paragraphs 146-149 Applicants submissions
[42] Paragraph 150 Applicants submissions
[44] Paragraph 179-184 Applicant's submissions
[45] Para 178 of applicant's submissions
[46] See paragraph 205-207 of respondent's submissions
Randall
Greyhound Australia Pty Ltd [2008] FMCA 1191
(1933) 49 CLR 66
(1976) 12 ALR 605
(2000) 108 IR 244
(2001) 107 IR 117
(1976) 11 ALR 599
(2005) 145 IR 285
(1959) 101 CLR 298
(1976) 26 FLR 257
(1977) 180 CLR 266