WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2014 WAIRC 00960

DELIVERED : THURSDAY, 21 AUGUST 2014

FILE NO. : M 75 OF 2013

CLAIMANT

AND

G & A Lombardi Pty Ltd (ACN 009 007 687)

RESPONDENT

Catchwords : Alleged contravention of the Fair Work Act 2009 and the Road Transport and Distribution Award 2010, constituted by the employer’s failure to pay its employee two weeks’ pay in lieu of notice of termination; whether the employee’s conduct amounted to serious misconduct therefore allowing the employer to terminate the employment relationship without notice; claim for 30 minutes’ pay conceded.

Legislation : Fair Work Act 2009

   Fair Work Regulations 2009     

Instruments : Road Transport and Distribution Award 2010 [MA000038]

Result : Claim succeeds in part

Representation

Claimant : In Person

Respondent : Mr M Dunbar (General Manager) appeared on behalf of the   Respondent

REASONS FOR DECISION

Background

1         G & A Lombardi Pty Ltd (ACN 009 007 687) (the Respondent) employed Mr Glen Rodney Dusenberg (the Claimant) as a transport worker between April 2011 and November 2012.  At all material times the Claimant was employed on a full time basis, Monday to Friday inclusive.  The terms and conditions of his employment were governed by the Road Transport and Distribution Award 2010 [MA000038].

2         On 22 November 2012, the Claimant’s employment was terminated.  The Respondent says that it terminated the Claimant’s employment without notice because of his serious misconduct.   The Claimant says that he was not given any reason for his termination and in any event denies serious misconduct.

3         Subsequent to his dismissal, the Claimant contacted the Respondent, claiming that he was owed $2,016.00 (nett), being two weeks’ pay in lieu of notice.  He also claimed $13.50 in unpaid wages.  It suffices to say that the Respondent did not pay him the amounts claimed.

Claim

4         The Claimant claims two weeks’ pay in lieu of notice and $13.50 (nett) in unpaid wages. 

5         The Respondent disputes the claim for two weeks’ pay in lieu of notice. It says that the Claimant’s conduct disentitled him to notice of termination or payment in lieu thereof. 

6         The claim for unpaid wages is accepted by the Respondent.

Issue

7         The main issue to be determined is whether the Claimant should have been given two weeks’ notice of termination, or alternatively, been paid in lieu thereof.

Legislation

8         Section 117(2) of the Fair Work Act 2009 (FW Act) provides:

“117 Requirement for notice of termination or payment in lieu

…

Amount of notice or payment in lieu of notice

(2)  The employer must not terminate the employee’s employment unless:

(a) the time between giving the notice and the day of the termination is at least the period (the minimum period of notice) worked out under subsection (3); or

(b)  the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.

(3) Work out the minimum period of notice as follows:

(a) first, work out the period using the following table:

(b)  then increase the period by 1 week if the employee is over 45 years old and has completed at least 2 years of continuous service with the employer at the end of the day the notice is given.”

9         The operation of section 117 of the FW Act is limited by section 123 of the FW Act, which provides:

“123 Limits on scope of this Division

Employees not covered by this Division

(1)  This Division does not apply to any of the following employees:

(a)  an employee employed for a specified period of time, for a specified task, or for  the duration of a specified season;

(b)  an employee whose employment is terminated because of serious misconduct;

(c)  a casual employee;

(d)  an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;

…”

10      Section 123(1)(b) of the FW Act enables an employer to terminate an employee’s employment without having to provide the required period of notice or payment in lieu thereof, if the termination occurs by reason of the employee’s serious misconduct.  The Respondent relies on that provision in denying this claim.

11      The Fair Work Regulations 2009 (FW Regulations) define “serious misconduct” in regulation 1.07:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious  misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

12      The Respondent alleges that the Claimant’s conduct at the time of his dismissal fell within the meaning of “serious misconduct” as is defined in regulations 1.07(2)(a), 1.07(2)(b)(i) and 1.07(3)(c).

Onus and Standard of Proof

13      The Respondent bears the onus of proving, on the balance of probabilities, that the Claimant committed the serious misconduct it alleges, thereby disentitling the Claimant to payment in lieu of notice.

14      If serious misconduct, within the meaning of regulation 1.07(3)(c) of the FW Regulations is proven, then the Claimant bears the onus of proving, on the balance of probabilities that in the circumstances, his conduct was not such that it made his continued employment during the period of notice unreasonable.

Was There Serious Misconduct?

15      On the morning of 22 November 2012, the Claimant was in the yard of the Respondent’s premises.  He had used a prime mover to transport a side tipper trailer weighing approximately 8.8 tonnes to a wash bay at the rear of the premises.  Having positioned the trailer proximate to the wash bay, the Claimant disconnected the trailer from the prime mover and then used a seven tonne forklift to shift the trailer into its correct position within the bay.

16      The forklift was coupled to the trailer by the use of a “pod” positioned on the forklift tines.  The pod provided the insertion point for the king pin on the trailer’s coupling assembly.

17      There is no dispute about the fact that whilst the Claimant attempted to position the trailer into the wash bay, he lost control of the operation.  At that point, the forklift was at right angles to the trailer with its rear wheels off the ground.  Rather than lowering the tines of the forklift and desisting in what he was doing, the Claimant made the conscious decision to continue to manoeuvre the trailer into the wash bay.  Clearly, what he did at the time was not safe.  The forklift could have toppled over at any time. When cross-examined about the incident, the Claimant conceded that what he did was unsafe.

18      Mr Michael Dunbar, the Respondent’s General Manager, witnessed the incident as he approached the forklift.  Mr Dunbar says that as he got closer to it, he saw another employee, Mr Christopher Harvey, positioned between the trailer and a solid fence.  In Mr Dunbar’s view, Mr Harvey was at risk of injury.  Consequently, Mr Dunbar yelled at the Claimant and told him to stop.  Mr Dunbar alleges that the Claimant refused to do so.  Concerned with what had occurred, Mr Dunbar determined that he should immediately dismiss the Claimant. 

19      The Claimant denies that Mr Harvey was between the fence and the trailer.  He says that Mr Harvey was between one and two metres away to the right of the forklift and trailer.  He also denies that he ignored Mr Dunbar’s demand to stop.  He says that a demand to stop was never made.

20      It is common ground that Mr Dunbar went to the side of the forklift and told the Claimant that his employment was terminated, and that he should leave and not return.  The Claimant testified that he was not told at that time, the reason for his dismissal.  His evidence was that Mr Dunbar went to him and said:

“F… off, don’t come back to these premises again”.

21      Mr Dunbar explained in his evidence that he terminated the Claimant’s employment with immediate effect because of the Claimant’s disregard for safety that day, and that was against a background of his previous conduct demonstrating lack of care.  Another reason for the Claimant’s dismissal was his failure, on that day, to obey a lawful instruction.

22      The Respondent is required to prove that the Claimant’s conduct on 22 November 2012 constituted serious misconduct warranting his instant dismissal.

23      There are two primary factual issues in dispute about the events that occurred on 22 November 2012.  The first is whether the Claimant refused to obey Mr Dunbar’s direction to stop and the second is whether Mr Harvey was between the fence and the trailer.

24      There is no evidence about those issues other than that which comes from the Claimant and Mr Dunbar. Mr Harvey was not called to give evidence.  The Claimant says that he was unable to call Mr Harvey because he was unaware of his whereabouts.  The Respondent on the other hand, decided not to call him because it was of the opinion that he might not give accurate evidence of the events of 22 November 2012 in light of the fact that he too was, for reasons unconnected with the events of 22 November 2012, dismissed from his employment.  In light of the explanations given, no adverse inference can be drawn from the failure to call him to give evidence. 

25      The factual issues in dispute require resolution.  Sometimes when an issue in dispute is to be decided on the conflicting evidence of one witness against the other, it may not be possible to prefer the evidence of one witness over another.  However in this instance that is not so.  For the reasons that follow, I prefer the evidence of Mr Dunbar.

26      In respect to the disputed facts, being Mr Harvey’s location and the Claimant’s refusal to obey an order, I find that the events occurred as Mr Dunbar has described them.  In the circumstances, each of those events alone warranted summary dismissal. 

27      The failure to obey Mr Dunbar’s instruction comes within the meaning of “serious misconduct” as provided by regulation 1.07(2)(a) and 1.07(3)(c) of the FW Regulations.  The manoeuvring of the trailer whilst Mr Harvey stood between it and the fence also constitutes “serious misconduct” within the meaning of regulation 1.07(2)(b)(i) of the FW Regulations. The latter was conduct that caused serious and imminent risk to the health or safety of a person.

28      Even if the Respondent had not been able to satisfy me of those factual issues, the undisputed evidence nevertheless establishes “serious misconduct”.  The Claimant’s own evidence was that in manoeuvring the trailer using a forklift, he lost control of that operation and that the rear tyres of the forklift lifted off the ground.  He conceded that the event was unsafe. The forklift could have toppled over.  The conclusion that he put his own safety at risk is self-evident.  His version of events also supports a finding that Mr Harvey was also at risk of being injured given his proximity to the forklift.   Had the forklift toppled over, which was entirely possible, the Claimant and Mr Harvey would have been at risk of significant injury or even death.  On the Claimant’s evidence alone, serious misconduct within the meaning of regulation 1.07(2)(b)(i) of the FW Regulations, is clearly established.

29      In the circumstances the requirement under section 117 of the FW Act that the Respondent give the Claimant notice of termination, or payment in lieu of that notice, did not apply because of the provisions of section 123(1)(b) of the FW Act.  Given that one of the grounds giving rise to a finding of serious misconduct is that the Claimant’s conduct was such as to cause serious and imminent risk to the health or safety of a person, the Claimant is unable to invoke the provisions of regulation 1.07(4) of the FW Regulations.

Other Incidents

30      Mr Dunbar testified that his decision to terminate the Claimant was taken against the background of other incidents in which the Claimant demonstrated a lack of care and/or disregard for safety.  The Claimant admitted being involved in the incidents but says that they occurred as a result of factors outside of his control and/or, by reason of deficiencies in the Respondent’s operation.

31      The incidents complained of are as follows.

1. Prime Mover Running off the Road

32      The Respondent contends that in wet conditions the Claimant drove a prime mover without a trailer attached in an unsafe manner causing it to run off the road and go through a fence on the side of the road.  The unsafe manner alleged was that the Claimant was following too closely behind another vehicle.

33      The Claimant admits the incident but says he was forced to swerve and run off the road when the vehicle in front of the vehicle he was driving gave him a late indication. In the circumstances he was forced to take evasive action to avoid a collision.

2. Faymonville Trailer

34      When the Claimant took a newly arrived Faymonville Trailer to Forrestfield to be weighed, he caused it to hit the weigh bridge thereby damaging the trailer.  The trailer needed to be repaired prior to it being picked up by the Respondent’s customer.

35      The Claimant testified that the incident occurred because of his lack of experience and training in driving such a trailer with a different steering mechanism.  He said that only minor damage was done to the ladder of the trailer.

3. Reversal of Trailer into Workshop

36      When the Claimant reversed a trailer into the Respondent’s workshop at Abernethy Road Forrestfield he caused it to hit a concrete pillar.  The trailer and the wall were damaged as a consequence.

37      The Claimant testified that the incident occurred because the Respondent failed to provide a spotter to assist him when reversing the vehicle.  When cross-examined, the Claimant conceded that having identified the risk of there being a blind spot, he made a conscious decision to reverse the trailer without a spotter.  He said that he had requested a spotter, but was not provided with one, and because he had to get the job done he reversed the vehicle despite the risk of doing so without assistance.

38      The Claimant testified that only minor scrapings were caused to the trailer in that incident.  He was challenged about that and shown exhibits 1 and 2, which are photographs depicting the cracking of a concrete wall.  The Claimant denied causing such damage.  Mr Dunbar’s evidence was that he inspected the damage caused to the wall soon after the occurrence.  He says that the photographs of the damaged wall taken soon after the event (exhibits 1 and 2) accurately depict the damage caused by the Claimant.

39      Mr Dunbar said that he spoke to the Claimant about the incident and warned him about his lack of care.  The Claimant denies having had such a conversation or receiving a warning of any type.

4. Big Wheels

40      The Claimant drove a prime mover with a trailer to Big Wheels Truck Alignment next door to the Respondent’s premises.  In the process, he misjudged his angles and caused his vehicle to hit a cement pillar.  He said the impact was at low speed causing paint to be scraped off the trailer.

41      When cross-examined, the Claimant was shown photographs (exhibits 3.1 to 3.4) which        Mr Dunbar later testified were taken immediately after the incident.  The Claimant denied the extent of the damage shown in the photographs and suggested that the photography distorted the extent of the damage caused.

5. Fuel Tank Rupture

42      When moving a trailer to Roadwest Transport Equipment and Sales Pty Ltd, an associated company of the Respondent, the Claimant caused the prime mover he drove  pulling the trailer to clip a pod on a forklift, rupturing the prime movers’ fuel tank.  Mr Dunbar suggested that the incident occurred as a result of the lack of care shown by the Claimant.  When cross-examined, the Claimant explained that he did not see the yellow pod which he clipped.   He agreed that he did not get out of his vehicle to check what was behind his vehicle before he started reversing.

Overview of the Five Incidents

43      The Claimant testified that he was never given any verbal or written warnings about the incidents that he was involved in.  Whilst I accept that he was not given written warnings about those incidents, I do not accept that he was not given a verbal warning or at least spoken to about those incidents, or some of them.

44      It is more probable than not that given the number of incidents in which he was involved and the extent of the damage caused by him that he would have at some stage been verbally warned about his conduct. The extent of damage caused in the Big Wheels incident (as evidenced in exhibits 3.1 to 3.4), supports the conclusion that such would have been the subject of a warning given as Mr Dunbar suggests.

45      In that regard, I find it probable that Mr Dunbar spoke to the Claimant about those incidents and in particular about the Big Wheels incident.  I accept Mr Dunbar’s evidence in that regard.  For those reasons, Mr Dunbar’s evidence is preferred over that of the Claimant.

46      The Claimant’s credibility is adversely affected by what he said about the damage he caused at Big Wheels.  His evidence is inconsistent with the damage depicted in the photographs (exhibits 3.1 to 3.4), which I accept are true photographs of the damage caused.

Conclusion

47      The Claimant’s conduct as exemplified by the various incidents described above, prior to the incident of 22 November 2012, indicate inadequate care, control and/or attention to safety.  Although none of those incidents alone or in combination would have warranted his summary dismissal, clearly the incident on 22 November 2012 did.

48      Although Mr Dunbar terminated the Claimant’s employment by reason of what occurred on 22 November 2012, against the background of the earlier incidents, it was clearly the case that he was justified in immediately terminating the Claimant’s employment as he did, based solely on the events which occurred on 22 November 2012.

49      In the circumstances, the Claimant was not entitled to notice of termination or payment in lieu thereof.  His sole entitlement is that of $13.50 (nett) for the half hour’s work that he performed which remains unpaid.

50      I propose to make an Order for judgement in favour of the Claimant in the sum of $13.50 (nett), exclusive of tax.  The Respondent will be liable to remit to the Australian Taxation Office the appropriate tax payable with respect to the payment for the half hour’s work performed. The Claim is otherwise dismissed.

G. CICCHINI

INDUSTRIAL MAGISTRATE