[1] Mr Raimond Serafini was employed as a truck driver by Holcim (Australia) Pty Limited and attached to the company's quarry depot at Albion Park. His services were terminated on Friday, 17 December, 2010 after nine years of employment following an allegation of his aggressive and dangerous driving and breaching site safety rules. Mr Serafini had received three written warnings over his conduct. He was on a final warning when the incident occurred which led to his dismissal.

[2] Mr Serafini is a member of the Transport Workers' Union of Australia which on Wednesday, 22 December, 2010 lodged an application on his behalf under s.394 of the federal Fair Work Act. The matter was the subject of conciliation in a telephone conference on Thursday, 17 February, 2011 but that conference was unsuccessful in resolving the matter and it was allocated to me for arbitration. The TWU sought that the matter be heard in Wollongong (although Holcim preferred that the matter be heard in Sydney). I set the matter down for a mention and programming in the premises which Fair Work Australia now shares with the New South Wales Industrial Relations Commission at 90 Crown Street, Wollongong and ultimately set the matter down for arbitration in a hearing on Monday, 23 May, 2011, Tuesday, 24 May, 2011 and Wednesday, 25 May, 2011. Notwithstanding the request of Holcim for the matter to be heard in Sydney, I believed it to be more convenient to convene that hearing in Wollongong. That was the location where Mr Serafini and most of the witnesses called to give evidence in the hearing lived and worked.

[3] Mr Bull represented Mr Serafini and the TWU in the hearing, calling Mr Serafini to give evidence. Statements by three Holcim drivers were also admitted into evidence without the need for them to be subject to cross-examination: Mr Craig Arnold, Mr Dave Thomas (currently TWU delegate) and Mr Roger Woll. Mr Bull has sought Mr Serafini's reinstatement in employment. Mr Moir represented Holcim in the hearing. He called seven witnesses in the hearing to give evidence: Mr Mark Noble, transport and logistics manager, Mr Geoff Gill, the regional transport manager, Mr Mario Copo and Mr Craig Ridding, transport supervisors, Ms Tam Beveridge, a safety and health systems manager, and Mr Denis Renton and Mr Steve Couzins, raw materials transport operators. Statements by Mr Anthony Quinn, safety and health co-ordinator, and Ms Penny Karvouniaris, a solicitor, were admitted into evidence without their being required for cross-examination. Mr Moir argues that there was no justification for my intervention in support of Mr Serafini.

[4] Mr Serafini commenced his employment originally with Readymix Holdings Pty Limited in 2001 as a casual driver. He obtained a permanent position one year later. The Readymix operations were taken over by Rinker Australia Pty Limited, later Cemex Australia Pty Limited, and ultimately Holcim (Australia) Pty Limited. The major part of his work was carting blue metal from a quarry at Albion Park to various Holcim concrete plants throughout New South Wales. He also performs some casual ad hoc driving work for two other businesses (and has apparently continued to do so after his dismissal).

[5] Between 2008 and 2010 Mr Serafini was TWU delegate for Holcim. He claims in the written statement which formed the basis of his evidence that the role of TWU delegate frequently brought him into conflict with Holcim management. Mr Serafini subsequently resigned as TWU delegate. He conceded that the role of TWU delegate may have gone to his head and he may have been "too vocal in representing the drivers' interest", placing him in a position where he was making his working relationship with Holcim management more difficult. He had also formed the view that he was not getting the support for his role as TWU delegate from the other Holcim transport employees that he had expected. He was also involved in safety improvement team [SIT] meetings and was the safety officer for the Albion Park depot.

[6] Mr Serafini holds a number of certificates for courses he completed to improve his skills as a driver for Holcim - the Safety Management Training Workshop, Heavy Combination Defensive Theory (4 hours), Driver Assessor (5 days) and Certificate IV in Assessment and Workshop Training. He holds a licence to drive multi-combination trucks. He asserts that he has an excellent driving record. There are nevertheless four offences recorded on his personal driving record over a period of 26 years - driving contrary to a stop sign for which he received a fine of $90.00 (1985); exceeding the speed limit by more that 30kph for which he received a fine of $80.00 (1986); exceeding the speed limit by not more than 15kph whilst driving a heavy vehicle, for which he received a fine of $131.00 (1991); exceeding the speed limit by not more than 15kph whilst driving a heavy vehicle for which he received a fine of $148.00 (1993); exceeding the speed limit by not more than 15kph whilst driving a coach or heavy vehicle for which he received a caution (2008).

[7] Also in evidence in this hearing is a disc containing videos of truck accidents which Mr Serafini placed on the YouTube website and on his own Facebook page entitled "Truck Pictures Old and New". He had photographed those traffic accidents with his mobile telephone whilst he was driving a heavy vehicle. Not only was that clearly an unsafe act, it may have led to him being fined with a further driving offence. Mr Serafini clearly understood that he was doing the wrong thing in photographing the truck accidents as he drove. There were, naturally enough, ambulance officers, police officers, tow truck operators and other persons attending those accidents and yet Mr Serafini drove past in his heavy vehicle without reducing his speed to any noticeable degree. He is, in fact, observed in one of the videos lowering his mobile telephone when he observed a police officer at the scene of one of the truck accidents, clearly indicating that he knew he was wrong in what he was doing. Mr Noble in his evidence regarded this issue, which did not come to the attention of Holcim management until after Mr Serafini's dismissal, as serious. So do I.

[8] Mr Bull has not opposed this after-acquired information being admitted into evidence and I see no reason not to admit it [Paech v. Big W Monarto Warehouse/590 Regional Distribution Centre [2007] AIRCFB 1049]. The High Court (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ) in Byrne and Frew v. Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 made its position clear on that issue. In particular, in their joint judgement Brennan CJ, Dawson and Toohey JJ put the matter succinctly (at p.430), viz:

"…And facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable…"

[9] Notwithstanding his use of a mobile telephone to photograph traffic accidents while driving a heavy vehicle, however, there appears to have been no safety issue involving him or any complaints made about him by other road users or customers. The evidence of Mr Copo and Mr Ridding supports the view I have formed that he was a competent driver of heavy vehicles and his employment as a truck driver was relatively uneventful up to the event which led to his dismissal.

[10] However, Mr Serafini's employment with Holcim has not been without incident - what Mr Gill accepted to be a general lack of respect for authority and a difficult relationship with Holcim management from time to time. In particular, he has consistently failed to comply with paperwork which Holcim management claimed was necessary to meet its organisational requirements and occupational health and safety and road safety obligations. Mr Ridding recalls a conversation with Mr Serafini in late 2010, viz:

Mr Serafini: I don't do hazard reports. This company does not give a shit about health and safety. It's just a box ticking exercise.

Mr Ridding: Holcim puts a lot of time into health and safety in comparison to another local transport company and I am qualified to know this.

Mr Serafini: That's bullshit. It's just another way to blame drivers for anything that goes wrong.

[11] Contrary to what Mr Serafini said in that conversation with Mr Ridding, from time to time he did, in fact, complete hazard reports over what he claimed to be excessive paperwork and the unrealistic requirements placed on drivers to meet deadlines. He also completed hazard reports on what Mr Ridding claims occasionally to be "strange" issues. There must be some suspicion that he was handing in hazard reports on trivial matters in an attempt only to cause some inconvenience to Holcim management and undermine its safety policies. Nevertheless, those hazard reports were forwarded to Ms Beveridge, whose job it was to assess them. She was required to take those reports seriously and she did so. She makes no conclusion concerning whether or not those hazard reports reflected Mr Serafini's genuine concerns but she was often not able to really identify why Mr Serafini regarded the concerns as significant.

[12] Chiefly Mr Serafini's complaints were what he saw as an excessive amount of unnecessary paperwork which he had now to complete and which had not been formerly pressed under previous management of the Albion Park operations. Ms Beveridge recalled him reporting on one occasion that he felt "stressed and under pressure due to too much paperwork" and telling her:

"Sometimes you can do it but other times it's too much. There are too many activities going on. There's too much doubling up. I mean the timekeeping is done via truck tracking. "

[13] Apparently Mr Serefini was not alone in believing that the demands for the completion of necessary paperwork was making excessive demands on the drivers and a number of drivers with lengthy periods of employment were apparently also resentful of the demands in that respect placed on them and had resisted attempts to follow the directions made by Holcim management that they complete the necessary paperwork for their runs.

[14] On Friday, 4 September, 2009 Mr Serafini received his first formal warning from Mr Gill (CEMEX) concerning his failure to follow direction in that respect, ie refusing to undertake a competency assessment and declining to sign a sheet acknowledging his attendance at a training session over that issue. That letter stated:

"Competency assessment is an integral part of our safety system. It is essential that employees participate so that their comprehension of training can be assessed. Where employees have not fully understood training material they will need to participate in re-training. Your refusal to complete the compency assessment was also a breach of the terms of the workplace agreement, namely Clause 31.1(c) of the CEMEX Australia - Albion Park Aggregates Transport Agreement 2009 - 'active participation and attendance at safety meetings'.

CEMEX has the following expectations of your performance:

You will work within the terms of the workplace agreement, which includes participation at safety and training meetings and (a) completing all competency based assessments and (b) signing attendance sheets acknowledging your attendance at meetings and training sessions. I will schedule retraining in the completion of drivers daily work sheets for you as soon as can be arranged.

Failure to correct your unsatisfactory performance may lead to further disciplinary action, including termination of your employment."

[15] Mr Serafini refused to sign at the foot of that warning letter in the space provided, although he did subsequently give a formal response to that warning letter (no doubt reflecting the position he took as TWU delegate and the views of some of the other drivers at that time), viz:

"First issue: when the matter regarding the paper work and time keeping of the worksheets was presented to the drivers at a communication meeting, there were a few concerns that were brought up by myself and other drivers. From that communication meeting I feel that there was lack of consultation with us drivers and that our concerns were ignored. I then handed in a hazard

report on the excessive amount of time keeping and paperwork that I was being forced to complete.

Second issue: while attending the workshop induction, there were certain questions that I had raised that no-one had answers for. Thus I feel I couldn't complete and sign that I had attended and agreed on how I was expected to complete the daily worksheets. I feel that the company's approach in this matter is unfair and the severity is unjust in this alleged incident. My employment and safety record in the eight years I have been employed at CEMEX speaks for itself.

Please attach this correspondence to the warning letter issued to me."

[16] Mr Serafini received a second warning letter dated Tuesday, 13 April, 2010 from Mr Gill (Holcim) in similar terms concerning his continuing refusal to undertake a competency assessment and declining to sign a sheet acknowledging his attendance at training. Mr Serafini had attended various toolbox and communications meetings and failed to sign attendance sheets. On Monday, 18 January, 2010 and again on Wednesday, 10 February, 2010 he also failed to make contact for allocations of work as per instructions given to him. And on Wednesday, 14 April, 2010 he received a final written warning essentially over the same concerns. Again Mr Serefini refused to sign the letters to acknowledge receipt of them.

[17] To my mind, Mr Serafini's failure to sign for attendance at training sessions and toolbox meetings is not necessarily the same thing as providing an acknowledgement and agreement to what was being discussed in those training sessions and toolbox meetings. But it is an indication that Mr Serafini was not assisting Holcim management in workplace issues, including workplace safety. Mr Copo indicated that Mr Serafini was not always co-operative in those training sessions and toolbox meetings and sometimes screwed up documents given to him by Mr Copo.

[18] Mr Arnold (who has also received similar warning letters) recorded in his written statement:

"In my opinion, the employees at Holcim Albion Park are not being consulted on workplace changes, safety issues and changes in company policies which have an impact on the way we perform our duties safely. Under previous management everything was consulted and agreed upon mutually before any changes occurred. However, under this current management there is no consultation or agreement on any policy changes and if you disagree or have different opinion with it, the employee may be issued with a warning letter as a deterrent to voice your opinion."

[19] Mr Thomas indicated in his written statement:

"Warning letters are being issued for the most trivial of matters...Warning letters are also being issued when a driver makes a stance on matters such as safety, worker's rights and driver's responsibility if it interferes with productivity."

[20] Mr Woll (who has also received warning letters over his daily run sheets and refusal to sign attendance sheets at communication meetings) also commented in his written statement:

"I feel that I'm working in an environment of threat of termination when I raise issues regarding my job description, safety and workers' rights in the workforce."

[21] Mr Gill indicated in his evidence that when he commenced employment with Holcim in the middle of 2008 he was alerted to the fact that some of the drivers - a core group including Mr Arnold, Mr Thomas and Mr Woll - with lengthy employment had a habit of not signing attendance sheets and he made it a priority to tighten up those loose practices.

[22] At approximately 6.30am on Wednesday, 8 December, 2010 Mr Serafini had parked his truck - a Mack CH truck and trailer [739] - in the lube bay near the amenities area in front of the lunch room at the quarry. His truck was fully loaded at the time with approximately 48 tonnes of blue metal and he had stopped to have his brakes checked and to go to the toilet before he took the truck out on the road. When he again climbed into the truck to drive, because he claimed there was another truck parked against a fence near the exit, it was necessary for him to do a u-turn. He conceded that he had to turn "a bit sharp" and the wheel spun on the gravel in the yard for a few seconds. Nevertheless, he does not believe that he had driven dangerously.

[23] At a tool box meeting with Mr Ridding prior to that time [5.00am], it had been explained to Mr Serafini that there were obligations placed on him by the New South Wales Road Transport (General) Act 2005 for him to attend to the paperwork provided to him. Mr Serafini's complaint again was essentially that there was an excessive amount of paperwork to hold in the cabin of the vehicles and no proper space to place that paperwork. He was seeking a pocket in the side of the cabin of the trucks but believes that his requests in that respect were being ignored by Holcim management. Mr Serafini conceded that he had been upset over what had been said at the meeting but he denies that he subsequently drove the vehicle aggressively as a result of his dissatisfaction at the outcome of the meeting. Mr Ridding does not believe that Mr Serafini was still carrying his aggression over from the meeting to the time he was driving his truck. However, Mr Moir suggested otherwise in his submissions and he asserted that Mr Serafini was, in fact, displaying some contempt to Holcim management when he left the site in his truck.

[24] Mr Ridding, Mr Renton and Mr Couzins observed Mr Serafini drive out of the quarry site. Mr Renton was at that time standing in the lunch room near the door looking out towards the yard. His evidence, contained in a written statement is as follows:

"I saw a vehicle reversing out of the workshop area. I saw that the vehicle was being driven by the applicant. I saw the vehicle reverse in a strange angle and then I saw it turn at full lock in a tight arc to the left (a left hand turn).

Once it had cleared the workshop, I then saw the applicant's vehicle suddenly accelerate as it moved towards the gate to the yard. I heard four gear changes from the time the applicant's vehicle cleared the workshop and moved towards the gate. A normal gear box has a range change of eight gears. The 'splitter' gearbox gives higher or lower ranges within each gear. From the sound I heard, the applicant's vehicle did not split gears.

After it had cleared the workshop, the applicant's vehicle took off in first gear and I heard the truck rev to maximum revs per minute [rpm], which is about 1800rpm (out of a possible range of about 500 to 1800rpm). The engine went through second and third gears and I heard the truck rev again to maximum rpm in each gear. I then heard the vehicle change into fourth gear. By this stage, the applicant's vehicle had reached the yard gate. Based on the number of gear changes I heard and the aggressive way the applicant was revving the engine, I estimate that the applicant's truck was travelling at a speed of 27 or 28km per hour by the time it reached the gate to the yard. I am sure that the applicant was driving over the speed limit on that occasion due to the aggressive way he was driving and the number of gear changes I heard.

What I witnessed and heard was unusual because the Albion Park transport yard is a pedestrian area so drivers drive in a steady way in the area. I was surprised by what I saw and heard. I said to Mr Ridding and Mr Couzins words to the following effect: 'That was a bit radical.'. What concerned me most about the incident was the aggressive way the applicant drove the vehicle and the speed.

There is a sign at the entrance of the Albion Park quarry that designates the quarry as a 20kph area... Even 10kph is quite fast in that area, especially when a truck is loaded and is exiting down the ramp. I did not see the brake lights on the applicant's vehicle light up at any point. The speed at which the applicant was driving as he approached the gate would have made it difficult for him to take evasive action if necessary. When coming out of the yard, it is important to drive up to the gate at a slow pace because if another truck is coming up the ramp, there is not enough room for two trucks."

[25] Mr Ridding indicated in his written statement that:

"At approximately 6.15am I heard the sound of a truck revving its engine. The loadness of the sound prompted me to move to the doorway of the meeting room and step outsid - there is a sliding glass door which is open - to see who it was. I was standing at the top of a small ramp and could see straight out onto the yard. Mr Renton and Mr Couzins also came and stood at the ramp with me.

I then noticed the vehicle [739], which was the applicant's vehicle for the day, had reversed out of the lube bay in the workshop. I saw the applicant was driving the vehicle. Once it had reversed straight out of the lube bay and was clear of the workshop, I then saw it turn in a sharp manner at full lock. From where I was standing, looking out to the yard, I saw the vehicle turn in an anti-clockwise direction (ie make a left hand turn away from the driver's side.).

The truck engine noise sounded like it was over-revving and the wheels were spinning, throwing gravel outwards as the truck lost traction due to the vehicle being turned at such a sharp angle. Usually a driver would reduce acceleration when a vehicle loses traction to prevent damage to the drive components of the vehicle. At no time did the applicant reduce acceleration. At the time there were two other vehicles parked in the yard."

[26] The evidence of Mr Couzins concerning the incident, contained in his written statement, is:

"I saw a truck execute a sharp right hand turn in front of the workshop...and proceed to gain speed as it drove down the exit of the yard. I could not see the driver of the truck. I heard the gears of the truck increase the whole time it was being driven down the ramp and exiting the transport compound. At no point did I see the truck's brake lights go on. Although I cannot be certain, in my opinion it appeared that the truck was travelling in excess of the 20kph (the speed limit that applies in the Albion Park site) by the time it had reached the ramp.

The way the truck was being driven could have been a danger to others, especially if there were pedestrians on the ramp. If a truck is loaded, which I am now aware that the truck was, it is more difficult to try and stop the truck quickly in comparison to when a truck is unloaded. If a person were to come up the ramp, and they do not make any attempt to move away from the truck, it would be difficult for the truck to avoid the person, even if the truck's brakes were applied immediately."

[27] There is some conflict in the evidence on the direction of Mr Serafini's u-turn. Mr Ridding claims that Mr Serafini's u-turn was made to the left of his vehicle but Mr Serafini, Mr Renton and Mr Couzins appear to confirm that Mr Serafini's u-turn was to the right, ie on the driver's side of the truck, which was the safer way to proceed. (Mr Renton has therefore contradicted what he said initially in his written statement in that respect.) Mr Couzins indicated that he was not 100% certain of the direction of Mr Serafini's u-turn but, in the circumstances, I have concluded from the evidence that Mr Serafini turned his truck to the right. It is also abundantly clear that there is a certain amount of animosity between Mr Renton and Mr Serafini and that Mr Couzins was a somewhat reluctant witness in the hearing to produce any evidence against Mr Serafini's interests. Nevertheless, I accept that their evidence is a fairly accurate account of the incident involving Mr Serafini and that he was reving the engine of his truck and skidding on the gravel at the site - and possibly travelling in the yard and down the ramp faster than the prescribed 20kph limit.

[28] But from the evidence before me in this hearing, I do not believe that I am able to identify the speed Mr Serafini was actually travelling with his truck with any confidence. As Mr Bull asserted in his submissions, if the wheels of the vehicle were spinning in the gravel of the yard, there would initially have been no or little traction and consequently less likelihood of an acceleration of the truck. The speed of the vehicle was only what was observed by Mr Ridding, Mr Renton and Mr Couzins. It must be no more than an educated guess on their part.

[29] Later that morning Mr Serafini received a telephone call from Mr Ridding who said words to the following effect:

"Keep an eye on your speed exiting the compound. It seemed that you were going too quickly."

[30] A mild rebuke, I would think. Mr Ridding claimed that Mr Serafini was laughing when he spoke to him and therefore not taking his comments seriously.

[31] Mr Serafini believed that would have been an end of the matter and that he had not performed any actions which were really unsafe. Later that day Mr Ridding observed Mr Serafini driving "excessively" slowly at the site. He believes that Mr Serafini was driving at that very low speed in the depot because he was "making a point" and, to some extent, acting sarcastically to make that point.

[32] Mr Serafini carried out his normal driving duties until the afternoon of Monday, 13 December, 2010 when he was called into a meeting in Mr Ridding's office and given a letter signed by Mr Gill suspending him with pay and directing him to attend a further meeting on Tuesday, 14 December, 2010 to show cause why he should not be terminated, viz:

"On Wednesday, 8 December, 2010 you were observed operating truck 737 in a manner that was aggressive and dangerous. The speed you were witnessed manoeuvring the vehicle at was excessive and had potential to cause injury and/or damage to yourself, other employees, the vehicle and/or other property. This is verified by three separate eye witness statements provided to Holcim management.

Your actions breached the Traffic Management Plan for Albion Park quarry. It also showed a blatant disregard for safety and the safety practices and policies applied by Holcim. As explained previously during your most recent re-induction (Wednesday, 17 March, 2010), the company has certain expectations of you as an employee with Holcim. Those expectations are that you:

(i) do not steal, mistreat or make unreasonable personal use of company assets;

(ii) behave safely, report hazards and safety incidents and near misses.

Your actions are an unacceptable breach of the company's code of ethics and breach the Albion Park Quarry Traffic Management plan.."

[33] In the letter Mr Gill drew Mr Serafini's attention to the previous warning letters Mr Serafini had already received and which I have described earlier in this decision.

[34] On Tuesday, 14 December, 2010 Mr Serafini attended a meeting with Mr Gill and Mr Ridding at the Albion Park depot of Holcim. Mr Serafini was accompanied by Mr Thomas as his support person. Mr Serafini recalled the conversation at the meeting. Mr Gill told him that he had been observed driving dangerously and aggressively. Mr Serafini claimed that he did not believe he had done anything wrong and he added:

"I wasn't driving my normal truck and the retard brakes were not as powerful as what I was normally used to."

[35] Mr Serafini also indicated that his foot had been caught by the floor mat in the cabin of the truck. He commented in his written statement which formed the basis of his evidence:

".I tried to explain myself as best I could. I was 'clutching at straws'' as I really did not have any idea that anything I had done was particularly unsafe."

[36] Mr Gill indicated that he would need to take this matter to senior Holcim management and the meeting concluded on that basis - but Mr Gill did make a recommendation for Mr Serafini's dismissal in his subsequent communications with Holcim senior management. Mr Serafini waited at home for a response and on Wednesday, 15 December, 2010 he forwarded an e-mail pleading for his job, viz:

"I've never been in the position I'm in now ever before in my working life. Having these days off and sleepless nights has given me a lot of time to think of my attitude towards my job and attitude towards others. As I have said to Mr Gill in yesterday's meeting, I don't believe I drove aggressively in the compound the other day. However, having this time to think, I am not proud of myself for putting myself in a position with these warning letters. I have not taken these warning letters seriously until now.

I realized yesterday my attitude and aggressive nature changed when I became union delegate in, I think, 2008. I think I took the delegates job way too seriously and I'd say I was trying to please as many drivers as I could. You could say I was trying to make the drivers proud of me. I loved doing the delegate's job but it was making me crankier and crankier. The position I'm in now has given me a giant wake up call. I love my job and I want to stay. I want (to) feel proud of working here and driving 709 like I used to. (I have pictures of 758 and 709 on my garage wall.)

I would like you to consider giving me a chance to prove to myself and to management that my attitude will and has changed and I once again can be a valued employee and a credit to Holcim."

[37] Because Mr Serafini was so anxious concerning the impending threat to terminate his employment on Friday, 17 December, 2010 Mr Gill telephoned him and informed him that a decision had been taken to terminate his services. Subsequently, a letter from Mr Gill dated Monday, 20 December, 2010 was forwarded to him, confirming that his services had been terminated, viz.

"This letter formally advises that your employment with Holcim has been terminated effective from Friday, 17 December, 2010. You will receive payment in lieu of notice.

The reasons for termination were discussed with you at our meeting on Tuesday, 14 December, 2010... At that meeting it was explained to you that your actions were in breach of the Traffic Management Plan for Albion Park quarry and subsequently demonstrated a blatant disregard for the safety practices and policies applied by Holcim.

You will also be aware that you have previously received three separate written warnings for unsatisfactory work performance. Your response to these matters, including your length of service and employment history was carefully considered. The decision to terminate your employment was made after a full investigation and consideration of the facts."

[38] My primary task in this hearing is to determine whether or not, in all the circumstances, Mr Serafini's dismissal was, in terms of s.385(b) "harsh" - meaning too severe having regard to all the circumstance, "unjust" - meaning unfair, inequitable, undeserved or biased, or "unreasonable" - meaning immoderate, excessive or extravagant [Parker v. Capital Painters Pty Limited (1996) 68 IR 100 ap p.104]. In terms of s.381(2) I am required in this hearing to:

"....ensure that a 'fair go all round' is accorded to both the employer and the employee concerned..."

[39] That is a concept which initially found approval by Sheldon J of the former New South Wales Industrial Commission in Re Loty and Holloway and the Australian Workers Union (1971) AR(NSW) 95 at p.99 and which has now been adopted and given statutory recognition in s.381(2).

[40] In particular, the criteria for considering whether a dismissal was unfair in that context is set out in s.387 and I take those matters into account in my determination of the s.394 application the TWU lodged on behalf of Mr Serafini, viz:

"In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and

(e) if the dismissal related to the unsatisfactory performance by the person - whether the person had been warned about the unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant."

[41] Mr Serafini was notified of the reason for his dismissal [s.387(b)] and given an opportunity to respond to the allegation made against him [s.387(c)]. He had a support person present when he was interviewed over the incident [s.387(d)]. This issue turns entirely, as so many s.394 applications do, on whether there was a valid reason for the dismissal [s.387(a)]. I note in that respect particularly that s.387(a) has emphasised "...the safety and welfare of other employees...", highlighting the importance that the safety and welfare of employees has in the structure of the FW Act. This hearing centres essentially on an issue of workplace safety.

[42] It is trite to say that it is in an employee's own interests, and the interests of the employees with whom he works, to ensure that at all times he acts with safety at work [Vehicle Builders Employees Federation of Australia v. Toyota Manufacturing Australia Limited (1987) 24 IR 784]. And that he drives at all times in a safe manner, following all speed limits imposed on his driving at workplaces [Rand Transport (1986) Pty Limited v. Geravasoni [2010] FWAFB 2526 at para.14]. I accept that where Mr Serafini drove on that day is an area with pedestrian access and heavy vehicles coming and going on a ramp which only has room for one truck to pass at a time. Nevertheless, notwithstanding the evidence of Mr Ridding, Mr Renton and Mr Couzins, there must still be some doubts concerning the actual speed of the vehicle Mr Serafini was driving when he left the site, albeit I believe that it is open to me to conclude from their evidence that he was probably exceeding the 20kph speed limit.

[43] But, as Mr Bull indicated in written submissions:

"Where misconduct is alleged as a valid reason to terminate employment, the tribunal must determine for itself whether in fact the conduct occurred. The respondent must discharge an evidentiary onus and establish the misconduct to a reasonable degree of certainty. Further, where an allegation involves misconduct which may lead to grave consequences for the accused person, the tribunal should closely scrutinize the evidence and require clear, cogent or strict proof before holding any such allegation proved: Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Neat Holdings Pty Limited v. Karajan Holdings Pty Limited [1992] HCA 66; (1992) 110 ALR 449 at pp.449 and 450."

[44] What I can confidently accept from the evidence of Mr Ridding, Mr Renton and Mr Couzins is that Mr Serafini moved rapidly though the gears, revving his engine excessively in the process, turning very sharply and skidding on the loose gravel of the yard. The rest is speculation, to my mind.

[45] However, what does chiefly concern me in this hearing is what appears to be the attitude of Mr Serafini (and Mr Arnold, Mr Thomas and Mr Woll) to what I regard as essential paperwork required for road transport legislation and for occupational health and safety reasons. The Road Transport Act requires certain paperwork to be completed by the driver. I note also that an obligation is placed on all employees in New South Wales under s.20(2) of the Occupational Health and Safety Act 2000 to co-operate with their employer and comply with any direction concerning workplace safety. Mr Serafini failed to do that.

[46] Furthermore, consistent with that statutory obligation on employees, the CEMEX Australia - Albion Park Aggregates Transport Agreement 2009 under which Mr Serafini was engaged provides [Clause 31.1] as follows:

"The parties are committed to the personal safety of all personnel. To this end, the company and employees seek to achieve a reduction in incidents and injuries to a zero level. The employees agree to be proactive in improving the safe working ethic, identifying possible problem areas and actively contributing to safety improvement initiatives such as:

(a) working responsibly in a manner that is not detrimental to the employee's own safety, or the safety of others, or that is likely to cause damage to the environment;

(b) continually seeking and suggesting improvements to minimise the risk of injury to the employee and others;

(c) active participation and attendance at safety meetings;

(d) reporting all near misses, and work injuries immediately and, if medical treatment is required, co-operating with the company recommended medical practitioner to achieve the best possible management of the injury; and

(e) fully co-operating in all accident investigations."

[47] That is what Holcim management was seeking from Mr Serafini and that is what he was apparently reluctant to provide. It remains a condition of his employment.

I accept that at least some of Mr Serafini's past difficulties with Holcim management may have stemmed from his former role as TWU delegate, from which he has now resigned. As Mr Serafini's evidence before me appears to suggest, the position of trade union delegate is often a thankless and unrewarding job - an intermediary between workers and management with the individual taking the heat from both sides. The role of trade union delegate has many onerous responsibilities. But it also carries with it some protection to the occupant of the position to match those responsibilities, eg protection from adverse action [s.346]. An employer is navigating dangerous waters if he dismisses an employee as a consequence of his conduct as a trade union delegate, no matter how unhelpful the employer may have regarded the employee acting in that capacity [Transport Workers' Union of Australia v. CWS Transport Services Pty. Limited [1990) 39 IR 8].

[48] But a trade union delegate will not be excused conduct which for any other employee would be grounds for dismissal. In the Newcastle Steel Works Case (1961) AR 48 the Full Bench of the former New South Wales Industrial Commission (Richards, Beattie and Kelleher JJ) commented in that respect (at p.66) as follows:

"While the Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability for wrongful actions."

[49] It seems to me that from the outset Mr Serafini was acting as much in his own interests as in the interests of a small but vociferous group of colleagues who shared his views on the demands Holcim was making on the drivers - not, it would appear to me, the workforce as a whole, which was his responsibility as TWU delegate.

[50] But did Mr Serafini's conduct justify his dismissal or was his dismissal too harsh a penalty to him in all the circumstances? I do not believe that his dismissal was warranted. It is a legitimate function of industrial tribunals in this country to examine the severity of a particular penalty imposed on a dismissed employee and to determine if, in all the circumstances, it is excessive: such an approach is suggested by the word "harsh" in s.385(b): the punishment should fit the crime [Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR(NSW) 231 at p.233]

[51] Mr Moir drew my attention in written submissions to the decision of Friday, 24 December, 2010 of a Full Bench of Fair Work Australia (Lawler VP, O'Callaghan SDP and Roberts C) in Lawrence v. Coal and Allied Mining Services Pty Limited [2010] FWAFB 10089. The Full Bench there considered an issue involving an employee dismissed for a serious breach of safety, ie his failure to follow isolation procedure. The majority decision of Lawler VP and Roberts C was for the reinstatement of the dismissed employee. The majority had this to say [at para. 38]:

"We regard the unqualified dismissal of an exemplary employee with 28 years of service, an impeccable disciplinary record and an otherwise impeccable safety record for a policy breach the sort that occurred in this case - particularly when the policy itself contemplates that breaches will not necessarily lead to disciplinary action, let alone dismissal, and having regard to the personal consequences for the employee and his family - as manifestly harsh. We accept that the misconduct reasonably called for a disciplinary sanction and that a period - even an extended period - of suspension without pay may still have been within the acceptable range. But in all the circumstances unqualified dismissal was, in our view, manifestly harsh. On the rehearing we find that (the employee) was unfairly dismissed."

[52] An appeal against that decision to the Federal Court [Marshall, Cowdroy and Buchanan JJ) was dismissed on Tuesday, 19 April, 2011 [Coal and Allied Mining Services Pty Limited v Lawler [2011] FCAFC 54].

[53] As Mr Moir submitted, Mr Serafini was not necessarily an "exemplary employee" as described of the dismissed employee in Lawrence v. Coal and Allied Mining Services Pty Limited; nor was Mr Serafini's employment with Holcim and its predecessors (nine years) as long. But nor was his alleged misconduct as serious, in my opinion and there is still some doubts in my mind as to how fast Mr Serafini was actually travelling. I also believe there are a number of factors which I believe I should take into account in terms of s.387(h), viz:

* at least some of Mr Serafini's difficulties in the past had arisen over his conduct as TWU delegate;

* notwithstanding the YouTube and Facebook entries which Mr Serafini made, clearly indicating an unsafe action by Mr Serafini while he was driving a heavy vehicle (but which I regard as an aberration on his part), his driving record is conceded by Holcim management to be satisfactory up to the incident on Wednesday, 8 December, 2010 which led to his dismissal;

* whilst I am willing to accept that Mr Serafini was possibly travelling in excess of the 20kph required at the site on Wednesday, 8 December, 2010, there remains some doubts in my mind as to his actual speed at the time, based as it is entirely on the observations of the witnesses - insufficient, in my opinion, to discharge the onus required by the test in Briginshaw v. Briginshaw;

* the past difficulties Mr Serafini had with Holcim management appear essentially to relate to his reluctance to comply with directions given to him - something he shared with at least some other drivers; and

* I believe that Mr Serafini has shown genuine remorse and contrition over his past conduct and an undertaking to improve his attitude to directions given to him in future.

[54] For those reasons I propose to order the reinstatement of Mr Serafini from the date of this decision in terms of s.391(1) to his former driving position with Holcim and preserve continuity in employment for him in terms of s.392(2)(a).

[55] However, I would not wish by this decision to be taken to in any way be undermining the approach to safety issues at work which Holcim has adopted, which I regard as sensible and appropriate. Mr Serafini (and Mr Arnold, Mr Thomas and Mr Woll) must appreciate that continued employment is dependent upon strict observance of all reasonable and lawful directions in that respect. Mr Serafini continued employment rests in his own hands. And I decline to recompense Mr Serafini for any loss of earnings due to his dismissal in accordance with s.391(3). Mr Bull does not press a claim in that respect and Mr Serafini's conduct over the incident, and his previous conduct with Holcim management, still merits some censure and a penalty to him, in my opinion.

Stephen Bull for the applicant and the Transport Workers' Union of Australia

Printed by authority of the Commonwealth Government Printer