https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc6609.htm

Introduction

In the circumstances, the Commissioner did a great job of restoring – not only a working relationship, but (maybe) a friendship.

The Commissioner was also careful in not condoning the breach of law relating to logbooks.

In short, a strange – but excellent – outcome!

Summary

This matter relates to a 68-year-old truck driver who had worked for a rural transport company for 13 years. The Commissioner in this matter not only decided to reinstate the applicant but got the parties (who had known each other for years) to agree on a number of important grounds.

The Commissioner also commented on age discrimination when seeking employment.

Falsifying the Logbook admitted

The issue of falsifying the logbook was one of contention, with the Commissioner preferring the evidence of the applicant over that of the respondent, stating:

“The Applicant struck me as a witness of truth. He used the colourful language no doubt often used by him. He spoke honestly about falsifying his logbook. He openly conceded that he drove home to Deniliquin illegally.

“I found [the respondent’s witness] to be less believable. That is not to say he was a liar. However, his attempt to characterise his phrase ‘go the back way’ as directional advice was far-fetched. It was clear that he was suggesting that the Applicant might better avoid detection by authorities if he went ‘the back way’.

Fatigue kills

The Commissioner finding that:

“I find that the direction to divert to Parkes, NSW was not lawful or reasonable. Mr Lumbar did not invite the Applicant to take his 24-hour break before going to Parkes. [the respondent’s witness] already knew that the Applicant was in breach of that requirement. The Applicant’s failure to comply with the direction to divert to Parkes, NSW was not a valid reason for dismissal.

However, that is not the end of the matter. I am deeply troubled by the Applicant’s decision to falsify his logbook and to travel back to Deniliquin in breach of the lawful obligation that he have a 24-hour rest period. Mandated rest periods are for the benefit of truck drivers and also for the benefit of other drivers on the road. Fatigue kills.

“The Applicant’s decision to travel back to Deniliquin in breach of the lawful obligation that he have a 24-hour rest period was misconduct. It provided a valid reason for the termination of his employment. The Respondent did not elect to terminate the Applicant’s employment for that reason, but it was entitled to do so. However, having regard to the findings I made above about [the respondent’s witness] direction to the Applicant that he divert to Parkes, NSW it would appear that the Respondent was prepared to be complicit in the breach. There should be a consequence for both the Applicant and the Respondent for their respective preparedness to ignore rules around fatigue”.

Valid reason to dismiss the employment, but…

Whilst the respondent had a valid reason for dismissing the applicant, the Commissioner found that it was the applicant’s refusal to divert to Parks was the reason given and, this reason being unlawful, made the dismissal unfair.

In commenting on the reason given for the dismissal provided by the respondent to the applicant, the Commissioner noted:

“…The argument between him and [the respondent’s witness] 2019 was that opportunity. For the reasons I have stated above the Applicant was entitled to reject the direction given by [the respondent’s witness].”

The Commissioner found that the dismissal was “harsh” given the applicants unblemished employment record, his age, and the difficulty that a 68-year-old man has finding alternative employment in rural NSW.

“The fact that the Applicant is 68 years old and is living in a rural town limits his employment opportunities considerably. The Applicant gave evidence that he had tried to find work since the termination of his employment but had been unsuccessful. That is not surprising. Older workers are routinely discriminated against. One does not have to be Nostradamus to predict that, more likely than not, the Applicant will never work again. It is almost certain that, at his age, he will never again find a job that pays $109,188 per annum. According to the most recent Census, Deniliquin has an unemployment rate of 5.4% and personal median annual income of $30,472. 39”.

Reinstatement: Employee says no, Respondent says yes…

The applicant submitted that reinstatement was not a practical solution given the fractious relationship between the applicant and [the respondent’s witness].

The Applicant said:

“Even the old days we work together, we drank together, we played up together, we’ve done everything together, but as he’s got to become a bigger businessman I suppose people change, he’s got a lot on his mind and all the rest of it, and, you know, like you never – you never expected – a couple of me and my other mates they’ve been there 14, 15 years, you know, we just love the job, but everything just changed in the last six or seven years or so and is no communication. [Another employee of the respondent] a little bit different, is more talkative and a bit more cooperative sort of thing, [the respondent’s witness] he’s just got no time for anybody except himself – well, I want to say I know all his work commitments and everything like that, so – but, no, there is no chance of me ever going back there I’m sorry to say. As much as I like the job everything, but that just wouldn’t be any-any hope.”

However, the Respondent did not agree, commenting:

“Commissioner, it’s very hard to get good drivers and I’ll say John is probably one of my better drivers, a lot better driver.” [The respondent’s witness] then said when prompted by the Commissioner “Yes, I would take him back.”

Commissioner resolves stubborn behaviour?

The Commissioner adding:

“The Applicant and [the respondent’s witness] have known each other for about 35 years. They have a robust relationship. They are, at times, like two old bulls in a paddock. The events of [leading to the dismissal] are regrettable. Neither man would put aside his pride to:

  1. a) in the case of the Applicant, ask for his job back, or
  2. b) in the case of [the respondent’s witness], invite the Applicant back to work.

“But despite the events that have passed and noting the difficulty that the Applicant has found finding employment, I think it best that the working relationship be restored. Both men should respectfully and courteously sort out their differences and go back to working with each other. They should both commit to working with each other productively”.

Financial advice?

And in providing financial advice to the applicant, the Commissioner said:

“For his part the Applicant needs to focus on his intention to retire in two years’ time and to maximise his income in that period. As a 68-year-old man living in Deniliquin he can best to do that by returning to work for the Respondent. The order that the Respondent reinstate the Applicant does not compel the Applicant to work for the Respondent. He may decline to be reinstated. He may resign at any time after he is reinstated. That is a matter for him. However, the order of reinstatement recognises that the Applicant was unfairly dismissed and is best able to maximise his pre-retirement income by returning to work for the Respondent”.

The time between being dismissed and reinstatement

In this regard in a nod to biblical “wisdom of Solomon”, the Commissioner found both the applicant and respondent equally culpable and awarded the applicant half the remuneration lost during this period.

However, continuity of employment was ordered.