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Introduction
You can read the full decision here.
This case involves an employee who was, despite previous warnings, was dismissed for speeding in the employer’s B-Double. Having won the case because the dismissal was done via telephone (rather than in person), the Commissioner decided to provide no award of compensation or reinstatement. So, in summary, whilst the applicant won, he lost.
It is also instructive to note that the lack of an experienced advocate did not help the advocate’s case AND the importance of ensuring that dismissals are done face-to-face.
Background
The applicant commenced work with the employer in February 2015. The applicant was employed as a Line Haul Driver, performing long-distance truck driving duties associated with the operation of heavy combination vehicles comprising a prime mover and two trailers which are referred to as “B-doubles”.
The prime mover vehicles operated by the employer are fitted with speed limiters which prevent the vehicles from accelerating above speeds of 100 kilometres per hour (kph). However, the vehicles can exceed the 100 kph limit when travelling downhill if the driver does not operate one or both of the braking systems so as to reduce the speed of the vehicle.
The prime movers are also fitted with a global positioning system (GPS), and an engine control module (ECM) monitoring system which independently track the movement of the vehicle and provide location and speed data to the employer’s headquarters. These vehicle tracking systems record the location and speed of the vehicle and have specific alerts when the vehicle speed exceeds established limits. Consequently, the GPS and ECM vehicle tracking systems alert the employer’s headquarters in any instance where the vehicle speed exceeds established limits such as initially, 106 kph, and a further alert is triggered at 116 kph.
Warnings
In March 2018, the applicant was issued a first formal warning in respect to excessive speed whereby the GPS and ECM monitoring systems recorded that the applicant had driven a vehicle at up to 116 kph. In October 2018, the applicant was issued a second formal warning in respect to excessive speed whereby the GPS and ECM monitoring systems recorded that the applicant had driven at up to 116 kph.
The suspension
On the morning of 9 October 2019, the employer’s National Linehaul Manager received an email alert that indicated that the GPS and ECM monitoring systems had recorded that the prime mover that the applicant was driving had reached a speed of 116 kph. Shortly after receiving this email alert, National Linehaul Manager, telephoned the applicant and asked him if he was aware that he had driven overspeed at 116 kph earlier that morning. The applicant said that although he thought that he may have gone overspeed he did not believe that he had travelled at 116 kph. National Linehaul Manager advised the applicant that he was immediately suspended from duty whilst an investigation would be conducted into the overspeed event. Further, the applicant was advised that, as part of the employer’s investigation, he would be required to attend a telephone conference interview which would be held at 10:30 am on 11 October 2019, and the applicant could bring a support person to the interview.
The telephone conference
Shortly after 10:30 am on 11 October 2019, the applicant, who was accompanied by his support person, participated from Sydney in a telephone conference interview with National Linehaul Manager. During this interview, National Linehaul Manager made inquiries about the applicant’s knowledge of his overspeed on the morning of 9 October 2019 which, according to the GPS and ECM monitoring data, showed that at about 3:45 am the prime mover that was being driven by the applicant had reached a speed of 116 kph for a period of about one minute. The applicant did not agree that he had reached a speed of 116 kph.
The applicant and his support person provided responses to National Linehaul Manager which offered various explanations for the overspeed incident and which included that; the applicant had disturbed sleep that created a fatigue problem; the applicant was driving an unfamiliar truck; the applicant was experiencing problems with his personal GPS system; and, that the speedometer in the truck was hard to see because of the applicant’s driving position. Further, the applicant also told Mr Thomas that he had noticed that he had reached a speed of 103 kph and that the brakes on the truck were not operating with sufficient efficiency so as to slow the vehicle. In addition, as part of the defence for the applicant that was advanced by his support person, he told National Linehaul Manager that the applicant had a substantial length of service with a good driving record for over five years.
The meeting concluded with the applicant remaining suspended whilst further investigation and consideration of the matter was undertaken by the employer.
The dismissal
On the evening of 15 October 2019, the company telephoned the applicant and told him that his services were no longer required due to the overspeed incident. This was confirmed in writing in a letter dated the same day.
Since being dismissed, the applicant had made a lot of job applications that have been unsuccessful.
The Case for the Applicant
The applicant’s “unpaid” representative made oral submissions in addition to documentary material that he had filed on behalf of the applicant.
The oral submissions made were somewhat surprising as they contradicted significant aspects of the filed written submissions.
The Commissioner commenting:
“Allowing for generous accommodation in respect to [the applicant’s representative] inexperience as an advocate, it has nevertheless been very difficult to reconcile the conflicting positions that were advanced on behalf of the applicant regarding any challenge to the actual conduct of the applicant in respect of the overspeed incident, and any assertion as to whether that conduct represented valid reason for dismissal. It appeared that despite what was initially included in the written submissions filed on behalf of the applicant, there was ultimately an acceptance that the conduct of the applicant in respect of the overspeed incident on 9 October 2019, as was found by the employer, had occurred and was not denied”.
The Case for the Employer
The employer was represented by its employer organisation.
Submissions were made which stressed the seriousness of the overspeed incident involving a substantial overspeed in a vehicle weighing some 60 odd tonnes travelling on a public road. The two previous warnings were also reinforced for exactly the same issue.
The employer also rejected all of the alleged mitigating factors which the applicant had attempted to rely upon as explanation for the overspeed incident, including the suggestion that the applicant was unable to control the speed of the vehicle because of some alleged inefficiency with the braking system, stating:
“So it’s frankly untenable, and really a lie to say he was unable to control the speed at Rainbow Flat when he was able to control it everywhere else.”
Findings
The Commissioner finding:
“In this case the applicant was dismissed as a direct consequence of his misconduct involving the overspeed incident…Although the actual misconduct of the applicant was initially disputed, subsequently any challenge to the actual overspeed incident and the applicant’s misconduct, has been abandoned.
“The case advanced on behalf of the applicant has sought to introduce alleged mitigating factors that might provide some explanation for the misconduct of the applicant. The various factors that were introduced by and on behalf of the applicant as some form of explanation or mitigation in respect of the overspeed incident, have unfortunately, operated only to discredit the applicant and his representative.
“The various unfounded, spurious and unlikely propositions that were advanced by and on behalf of the applicant as some explanation or defence for his overspeed misconduct have only served to provide additional foundation for an understandable but very regrettable loss of trust and confidence in the applicant. There was no factual basis for the suggestions that the applicant was driving a vehicle that he was unfamiliar with, or that the vehicle did not have a device to warn of excessive speeding (albeit not an alarm), or that there was an issue with the brakes of the vehicle such that it would have contributed to the overspeed incident”. [My emphasis].
Notification of Reason for Dismissal
Whilst the Commissioner noted that the employer provided written notification of the applicant’s dismissal in a termination of employment letter dated 15 October 2019. This letter represented documentary confirmation of the verbal advice of dismissal given by the employer when he telephoned the applicant on the evening of 15 October 2019.
The Commissioner:
“Advice of dismissal should not be conveyed by telephone, text message or other electronic communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous. Even in circumstances where telephone, text message or other electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and provision of documentary confirmation at the time of dismissal”.
But other people were caught speeding…
The Commissioner finding/commenting that the case that was advanced on behalf of the applicant suggested that the treatment of the applicant for speeding was inconsistent with the treatment of other employees.
“However, there was no sound evidentiary foundation to support findings of inconsistency in the treatment of the applicant in any comparable circumstances. Circumstances where other employees may have committed driving offences in their own vehicles and outside of work time, simply do not represent comparable circumstances”.
Conclusion
The Commissioner concluding that this case involved the applicant being dismissed for misconduct. The misconduct occurred early in the morning of 9 October 2019, when the applicant permitted the heavy vehicle that he was driving to exceed the speed limit and travel at a speed of 116 kph for a period of about a minute. The employer characterised this misconduct of the applicant as a critical infringement and gross breach of safety.
“In the context of two prior formal warnings about almost identical overspeed incidents, the misconduct of the applicant has been confirmed.
“Consequently, the employer dismissed the applicant for valid reason relating to the applicant’s conduct. The employer correctly characterised the misconduct as a critical infringement and gross breach of safety.
“However, the applicant was advised of his dismissal by way of a telephone call and he was denied an opportunity to show cause or make other representations to plead for reconsideration of the decision to invoke a penalty of dismissal. Consequently, the dismissal of the applicant involved clear procedural deficiencies and these errors in procedure must be balanced against all other relevant factors.
The Commissioner then considered the serious nature of a big, heavy B-Double travelling at speed, plus the dishonesty of the applicant in trying to talk his way out of trouble “operated to compound the misconduct…”
Because of the applicant being dismissed by telephone “has meant that a finding that the dismissal of the applicant was harsh has become inescapable”.
Therefore, the Commissioner found that:
“Consequently, the dismissal of the applicant was harsh. Therefore, the applicant has succeeded in establishing that his dismissal was unfair”.
Remedy
Having regard to the particular circumstances of this case, the Commission is satisfied that reinstatement of the applicant would be inappropriate, and further, the Commission considers that an Order for payment of any compensation would not be appropriate in all the circumstances of the case. In any event, if the Commission was considering any Order for payment of compensation, the amount would be reduced to zero.
“Therefore, the application for unfair dismissal remedy has been established such that the dismissal of the applicant was unfair, but the Commission has decided to make no Order to provide for any remedy”.
