Fair Work Act 2009
s.394—Unfair dismissal

Sapandeep Toor
v
Cleanaway Operations Pty Ltd
(U2021/11564)

Application for an unfair dismissal remedy.

[1] Mr Sapandeep Toor (Mr Toor) worked for Cleanaway Operations Pty Ltd (Cleanaway) as a casual Driver – Rear Lift between 8 November 2019 and 30 November 2021. On 30 November 2021, his employment was terminated for serious misconduct with immediate effect. The reasons given for termination were falsification of run sheets and failure to take fatigue breaks in accordance with heavy vehicle fatigue management law and company policy.

[2] Mr Toor challenges the fairness of his dismissal under section 394 of the Fair Work Act 2009 (Act). Mr Toor says that while he made mistakes, he was not solely responsible for ensuring compliance with fatigue management laws and policies. Cleanaway effectively condoned his conduct, mostly through instructions given by supervisors about the performance of work and their approval of his run sheets. In any event, the national heavy vehicle fatigue management laws and regulations did not apply to Mr Toor because the vehicles he drove had a gross vehicle mass (GVM) of 4.5-6.2 tonnes. Mr Toor submits that the real reason for dismissal was that Cleanaway did not want to convert his employment from casual to permanent. Mr Toor also submits that he was not warned about his conduct; the dismissal had a serious effect on his family; he had shown remorse for his mistakes; and was treated differently to his supervisors in connection with the run sheet allegations.

[3] Cleanaway denies that Mr Toor’s dismissal was unfair. It relies on his alleged breaches of its “Life Saving Rules”, to which a zero-tolerance policy applies. It submits that Mr Toor engaged in misconduct by fraudulently misrepresenting his break times and failing to take breaks as required by fatigue management laws and its policies. Cleanaway denies any connection between Mr Toor’s request to convert to permanent employment and his dismissal.

[4] I have decided that Mr Toor was unfairly dismissed and that compensation is the appropriate remedy. These are my reasons.

Preliminary matters

[5] Under section 382 of the Act, a person is protected from unfair dismissal if, at that time:

a) they have completed at least the minimum employment period; and

b) they are either covered by a modern award; or an enterprise agreement applies to them in relation to their employment; or their annual earnings are less than the “high income threshold” 1.

[6] Mr Toor was employed by Cleanaway for more than 12 months. The Cleanaway Blacktown Depot Drivers Enterprise Agreement 2019 applied to him in relation to his employment. Mr Toor is protected from unfair dismissal.

[7] A person has been unfairly dismissed under the Act if the Commission is satisfied that:

(a) the person has been dismissed,

(b) the dismissal was harsh, unjust or unreasonable,

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code, and

(d) the dismissal was not a case of genuine redundancy. 2

[8] There is no dispute that Mr Toor was dismissed from his employment on 30 November 2021. His application was filed on 13 December 2021, within the prescribed 21-day period.

[9] Cleanaway employs approximately 6,000 employees. 3 The dismissal could not have been consistent with the Small Business Fair Dismissal Code4 because Cleanaway was not a small business employer at the time of dismissal.5

[10] The dismissal was not a case of genuine redundancy.

[11] The question is whether the dismissal was harsh, unjust or unreasonable.

Relevant history

[12] The relevant facts of this matter are these. On 27 June 2021, Mr Toor was told by his supervisor, Mr Jyoti Bhanot, that he had the right to elect to convert from casual to permanent part-time employment and that he should do so by 22 July 2021. Mr Bhanot also told Mr Toor that he should think about not converting and continue on as a casual employee. Mr Toor thought about it and decided that he would convert to permanent employment. He went to see Mr Bhanot to tell him of the decision but Mr Bhanot had left for the day.

[13] Mr Toor approached Mr Bhanot about the matter on the following day. Mr Bhanot said the form he needed to sign was with the manager, who was not in the office. Mr Toor did not want to miss the offer of permanent employment so he sent a text message to Mr Bhanot on 28 June 2021. The message said:

“Hello Jyoti

Thanks for the part time opportunity offered to me yesterday. I would like to sign the contract. Plz let me know the days and the time that I will be working.”

[14] From 28 June 2021 to 11 July 2021, Mr Toor’s hours of work were reduced from an average of 38.9 hours in the previous six months to an average of 13.83 hours per week (16.41 hours, 12 hours and 13.08 hours respectively).

[15] On 2 July 2021, Mr Bhanot responded to Mr Toor’s message. He did not comment on the conversion request and simply advised his upcoming days of work and shift times.

[16] On 18 July 2021, Mr Toor sent a follow up message to the Operations Supervisor, Mr Rodney Trenholme. The message said:

“Hello Rod

Hope you are doing well. It’s almost three weeks, since I consent signing the permanent part-time contract to Jyoti.

I have not heard anything back yet. Was wondering, when can I sign it? Please let me know.

Kind regards

Sapandeep”

[17] Mr Toor says that after he sent this message, Mr Trenholme tried to intimidate him by giving him only 16 hours a week. Mr Toor is mistaken about the sequence of events. His hours of work were reduced at a time that coincided with his request to convert to permanent employment. It is possible that this was done to discourage Mr Toor from converting to permanent employment. While the timing also coincides with a pandemic-related lockdown in New South Wales, other lockdown periods do not appear to have translated to an equivalent reduction in Mr Toor’s hours of work. From 12 July 2021 until 11 October 2021, while the State remained in lockdown, Mr Toor’s hours of work increased to an average of 44 hours per week.

[18] On 18 September 2021, Mr Toor was admitted to hospital for high blood pressure.

[19] On 21 September 2021, Mr Toor sent a message to Mr Trenholme asking about the status of his contract and whether there were any updates.

[20] On 22 September 2021, Mr Trenholme replied to the message. He said:

“Hi Sap

It hasn’t been forgotten as u can imagine with the COVID standowns the company has held back

We are looking at what days you work in the mornings during the week once we have a plan I will let u know.”

[21] On 24 September 2021, Mr Trenholme sent a message to Mr Toor asking if he could call him later. Mr Toor replied:

“Rod

In regards to contract I am happy when ever next month you sign the contract. But i spoke to Kirk the union delegate. He want to do a meeting with you in wed after 2 pm if possible. Plz let know.”

[22] Mr Trenholme replied:

“Due to COVID we are unable to have meeting for 3-4 weeks

We will let you know when we are ready for you to bring union delegate in for meeting”

[23] Mr Toor responded:

“Rod

He is saying if you can do a phone meeting with them or a out door meeting?”

[24] Mr Trenholme replied to the effect that he would need to check.

[25] On 28 September 2021, Mr Bhanot gave Mr Toor a copy of the letter (dated 24 June 2021) about his right to convert to permanent employment. Mr Toor signed the letter and handed it back to Mr Bhanot. Mr Bhanot appeared annoyed and said to Mr Toor, in words to the effect:

“Every reaction has a consequence and you’ll have to bear it.”

[26] After this exchange, Mr Toor sent a text message to Mr Rodney Grech, CDS Operations Manager. The message said:

“Hi Rod Grech,

Thank you for offering the contract. I was really happy but unfortunately while I signed yes to the offer,.Jyoti [Bhanot] said.. “Every reaction has a consequence and you’ll have to bear it.” How can a supervisor be so unprofessional to say that before someone is starting their shift. It’s quite upsetting to listen to such things. I’m in limbo.. whether should I be happy about getting the offer letter or should I be scared that I’m getting the contract???

Hope you will look into the matter.

Regards,

Sap.”

[27] Mr Grech responded by speaking to Mr Toor about the responses he had received from Mr Trenholme and Mr Bhanot.

[28] On 29 September 2021, Mr Toor sent a text message to Mr Bhanot. The English translation of the message, which was sent in Punjabi, was this:

“Bro

I have no intention of creating issues or to bother anybody. Neither I have any issue with Rod T & Rod G. I just want to be permanent. I have join the union not to bother any one. After I get my permanent contract I will keep working honestly. I have been waiting for contract since I join company. I wanted contract because for last 2 years in a week I started work at 3 am and other days I started at 2 pm, causing my blood pressure to be high. Both the times were opposite and were affecting my body negatively. Few months before GP had asked me to maintain my lifestyle. But I was ignoring that because I did not want the office staff to think that I do not want to work. Recently BP went so high that I had to be in hospital. I know that when new casual will come after they finish the training Rod T would have send me to council work, which will lead to my ill health. Because council work is very early in morning and my body is not able to sleep before 12 at night. Body will get used to when I will start to get regular pattern of work. I writing to request you that I have to work for you, no matter how Rod T & Rod G treat me… that is not in my hands, but you don’t poison you mind for me. And I have no intention of creating any kind of issue with anyone. I reported you yesterday because I really got upset by what you said. I have write this message for you. You may delete the message & rest is up to you.”

[29] Mr Bhanot did not respond to the message, except to confirm Mr Toor’s shift the following Friday.

[30] On 5 October 2021, Mr Toor was working. At 7.19pm he contacted his supervisor, Marcelo, to say that he was hungry, that he had started his break, and that the lifter handle of the truck was broken. Marcelo told him that it was a busy day and the handle needed to be fixed immediately or work would not be finished. He told Mr Toor to go to the IGA in Meadowbank straight away, buy pliers to fix the handle, fix the handle and then take his break. He told him to record his break on the run sheet and that he would take care of the fatigue break time at his level.

[31] Mr Toor did as he was instructed. He went to the IGA, bought the pliers and fixed the handle. Another supervisor, Brad, called him at 7.48pm and 8.03pm to follow up on his progress. At 8.04pm Mr Toor resumed his break. He recorded this time on the run sheet as the start of his break and wrote notes about the broken handle.

[32] On 4 November 2021, Mr Bhanot conducted an audit of Mr Toor’s runsheet. Cleanaway submits that this was a random audit, but I am not satisfied that it was. Random audits are said to involve 5-15 drivers at a time but there is no evidence that any other audit was carried out on that day. The audit identified discrepancies between the information on Mr Toor’s run sheet and Cleanaway’s “Telogis” record. Three of the recorded times were out by 1 minute. One of the recorded times was out by 3 minutes and one by 5 minutes.

[33] Mr Bhanot’s comments on the audit sheet made no reference to the potential mitigating circumstance of the broken lifter handle or to the fact that some of the identified breaches had been signed off by the relevant supervisor. The comments were damning:

“Multipal fatigue breaches, 14 mins 1st, 17 mins 2nd, 27 mins 3rd break. 58 mins total breaks. 6 hours worked without break between 2nd and 3rd break. Driver only had two 15 mins breaks in 12.45 hrs shift.”

[34] On 5 November 2021, Mr Trenholme sent an email to Ms Alana Arnold, Human Resources Officer advising that Mr Toor had been subject to a random Safe Truck Safe Driver audit. Mr Trenholme advised that Mr Toor had contravened Cleanaway’s Fatigue Management Policy, Lifesaving Rules and Chain of Responsibility Policy on 5 October 2021. Ms Arnold advised Mr Trenholme to suspend Mr Toor. Mr Toor was then suspended with pay. Later that evening, he sent Mr Trenholme an explanation for the events of 5 October 2021. The explanation did not expose the full facts of what had occurred that day. I accept Mr Toor’s explanation that this was because he did not want to get his supervisor into trouble. Likely, he also did not want to get into trouble.

[35] On 8 November 2021, there was a meeting between Mr Toor, Mr Toor’s wife, Ms Arnold and Mr Trenholme. Allegations of unsafe behaviour were put to Mr Toor in relation to not taking adequate rest breaks on both 5 and 26 October 2021. The issue in relation to 26 October 2021 was that Mr Toor had not taken the minimum 30 minutes break time within 8 hours of work. This breach was also apparent on the run sheet submitted by Mr Toor that day, which had been signed off by his supervisor, Mr Bhanot.

[36] It is not clear that Mr Toor was put on notice before the meeting on 8 November 2021 that he would also be required to respond to allegations about his run sheet of 26 October 2021. Mr Toor responded to the questions he was asked, but his responses to these allegations indicate that he could not recall what had happened on that day. Mr Toor explained that on 5 October 2021, he had been in discussion with his supervisor who knew that his breaks would be affected by the problems he was having. He told Ms Arnold and Mr Trenholme that his supervisor had asked him to “work around it” and that when he told his supervisor that the next place he had to go closed at 8.00pm, the supervisor said that he would “manage it”. Mr Toor also reported other examples of supervisors asking him to adjust or misrepresent his breaks, including to get a tyre fixed and to write down bathroom breaks as rest breaks. Ms Arnold formed the impression that Mr Toor was not taking responsibility for his actions. Mr Toor raised the issue of his conversion to permanent employment and Ms Arnold responded that as he had not given his consent by 22 July 2021 (which she may not have known was factually incorrect) he had lost the opportunity to become permanent.

[37] Following the meeting on 8 November 2021, a further audit of Mr Toor’s run sheets was conducted for the period from 21 September 2021 to 26 October 2021. The audit identified another 10 fatigue breaches and 3 misrepresentations of rest break lengths. A majority of the breaches related to working too long without taking a break, contrary to Cleanaway’s Standard Hours Rules. These breaches were apparent on the run sheets and had been signed off by relevant supervisors on each occasion.

[38] On 11 November 2021, Ms Arnold asked Mr Trenholme to schedule a second meeting with Mr Toor to discuss the second audit results.

[39] On 12 November 2021, Mr Toor was interviewed by Mr Trenholme in the presence of Mr Ken Hurst from the Transport Workers’ Union (TWU) and Ms Arnold. Mr Toor again raised the involvement of his supervisors in his not taking breaks. Ms Arnold and Mr Trenholme both formed the view that Mr Toor was not taking responsibility for his actions and was instead continuously seeking to “project blame” on to the local management group for non-compliance. Ms Arnold requested Mr Anthony Pellegrino, NSW/ACT Senior Health and Safety Business Partner, to review the audit findings.

[40] On 14 November 2021, Mr Toor was due for refresher training in relation to driver fatigue awareness, including the Standard Hours Rules. The training was not provided to Mr Toor. Instead, on 15 November 2021, Mr Pellegrino confirmed the audit findings and advised that the matter should be escalated to the executive management team as a “lifesaving breach”.

[41] On 16 November 2021, Ms Arnold spoke to Mr Trenholme and passed on Mr Pellegrino’s advice. She then wrote to Mr Toor formally rejecting his application to convert to permanent employment. The reason given was that Mr Toor’s hours and days of work fluctuate, and the request would require “significant changes to accommodate”.

[42] On 18 November 2021, Ms Arnold asked Mr Trenholme to set up a further meeting with Mr Toor in relation to Cleanaway’s proposal to terminate his employment.

[43] On 19 November 2021, Mr Toor met with Mr Trenholme and Mr Peter Lane from the TWU. Mr Toor was given a letter signed by Ms Arnold about the “opportunity to respond” to Cleanaway’s proposal to terminate his employment. The letter advised that Cleanaway had upheld allegations that Mr Toor had not complied with mandatory fatigue breaks in line with the NHVR requirements and company fatigue management policy and that he had falsified legal documents, by declaring that he had taken adequate breaks that did not reflect the actual breaks taken as per his vehicles’ tracking report. A response was sought by 22 November 2021. The deadline was extended by 24 hours on request of the TWU.

[44] Separately on 19 November 2021, Mr Trenholme spoke to Mr Toor. He told him that if Mr Toor wrote a letter of apology, he could return to work within a week. He asked Mr Toor to call him on Sunday so that he could guide him about what to write in the apology letter. Mr Toor did as Mr Trenholme suggested. The two spoke on Sunday 21 November 2021 for approximately 17 minutes. Mr Toor then sent the apology letter to Ms Arnold and Mr Trenholme on 22 November 2021. He also sent a message to Mr Trenholme to say this had been done. Mr Trenholme replied by asking Mr Toor if he would like him to submit the letter. Mr Toor replied yes, but that he had already forwarded it to Ms Arnold.

[45] The apology letter did not have the effect that Mr Trenholme had suggested and surprisingly, the exchange does not feature at all in the witness statement of Mr Trenholme. The impression given by Mr Trenholme’s statement is that his only involvement in the apology letter was his receipt of it by email from Mr Toor on 22 November 2021.

[46] On 25 November 2021, Ms Arnold prepared a report to management about Mr Toor’s fatigue breaches. The report noted that there had been a separate issue in relation to casual conversion, but that it had been “resolved”. The report also identified breaches by supervisors in relation to the approval of non-compliant run sheets.

[47] From 25 to 26 November 2021, relevant management confirmed their support for Ms Arnold’s recommendation that Mr Toor be dismissed. Ms Arnold asked Mr Trenholme to schedule a termination meeting with Mr Toor.

[48] The termination meeting was held on 30 November 2021 between Mr Toor, Mr Trenholme, Mr Grech and Mr Lane. Mr Toor was given a letter terminating his employment with immediate effect for serious misconduct.

Was the dismissal harsh, unjust or unreasonable?

Was there a valid reason for the dismissal related to Mr Toor’s capacity or conduct?

[49] As has been noted above, there were two reasons given to Mr Toor for his dismissal:

1. Falsifying his run sheet with the intent to mislead on multiple occasions in the month of October 2021, and

2. Failing to take fatigue breaks in line with heavy vehicle (fatigue management) national regulation requirements and company fatigue management policy on 10 separate occasions between September and October 2021.

Falsification of run sheets

[50] I accept that Mr Toor’s run sheets were not always accurate. In most cases, this was because Mr Toor recorded that his break ended 1-6 minutes later than it actually did. I find that where this occurred, Mr Toor misrepresented his breaks on the run sheet to show that he had taken minimum 15 and 30-minute breaks. He did so to avoid getting himself and his supervisors into trouble for prioritising the completion of work over driver safety.

[51] I also find that when Mr Toor took a shorter break than required or did not take his break on time, the supervisor on duty at the time likely knew about it. This finding relies on the evidence of Mr Toor, which I accept, that he always asked his supervisors about when he could take his break and that sometimes, supervisors would ask him to delay his break to meet operational requirements. It is also consistent with the fact that supervisors regularly signed off on run sheets that showed inadequate rest breaks being taken, and Mr Grech’s evidence to the effect that drivers need to call their supervisors when they are due for a break.

[52] Mr Toor knew that it was important to accurately record his hours on the run sheets. He had attended training on Cleanaway’s Driver fatigue awareness module which spelt out the Standard Hours Rules and he had been warned about the consequences of failure to accurately record breaks in a tool box talk. Cleanaway’s Life Saving Rules require drivers to take “all fatigue management breaks” and the related competency assessment form asks drivers to respond to the question “As a heavy vehicle driver, am I allowed to work through my fatigue breaks to get more work completed?” On 24 January 2021, Mr Toor answered the question by marking the box “Never”.

Failing to take breaks in line with fatigue management laws and company policy

[53] Mr Toor’s failure to take breaks was not in breach of relevant fatigue management laws because they did not apply to him. Mr Toor drove a vehicle with a GVM of less than 12 tonnes. His vehicles were not covered by the mandatory break provisions in the Heavy Vehicle National Law because they were “heavy vehicles” but not “fatigue regulated heavy vehicles”.

[54] However, Mr Toor was covered by Cleanaway’s fatigue management policy, which although not clearly worded, extends the scope of fatigue management laws to all of Cleanaway’s heavy vehicle drivers. The purpose of the policy is to “ensure that all heavy vehicle drivers adhere to the mandatory fatigue laws governed by the National Heavy Vehicle Regulator (NHVR) and state-based regulatory authorities. The policy covers “all heavy vehicle drivers”, including rear-loaders such as those driven by Mr Toor. In my view, the language is intended to reflect the language of the National Heavy Vehicle Law, which defines a heavy vehicle as one that has a GVM of more than 4.5 tonnes, and a “fatigue regulated heavy vehicle” as a vehicle with a GVM of more than 12 tonnes (individually or in combination) or a bus with a GVM of more than 4.5 tonnes (fitted to carry more than 12 adults).

[55] The fatigue management policy applied to Mr Toor but only applied in part. The policy is mostly concerned with drivers of fatigue regulated heavy vehicles. However, clause 6 sets out the process for management and reporting of fatigue. The policy requires schedulers and front-line leaders (including supervisors and branch managers) to plan routes / run sheets to incorporate breaks according to the Cleanaway Fatigue Guidelines. It also requires drivers to record their fatigue work and rest breaks and present them to their supervisor for review and debrief at the end of each shift/day. Front line leaders are required to review each driver’s daily run sheet at the completion of each shift/day. Non-compliance findings are to be reported in “Vault”. They are also to be investigated with appropriate action taken to ensure the situation does not occur again. Audits are to be undertaken by branch managers. Fleet, health and safety business partners and internal audit respectively are to carry out regular audits to ensure compliance with fatigue guidelines.

[56] The obligations imposed under the policy were not met by anyone in relation to the fatigue breaches of Mr Toor:

1. Mr Toor complied with the letter of the policy by completing his run sheets each day and presenting them to his supervisor for sign off, but he did not comply with the spirit of the policy by failing to accurately record his breaks.

2. Supervisors did not comply with the policy because they did not ensure that Mr Toor’s planned routes accommodated appropriate breaks. They regularly either encouraged or turned a blind eye to Mr Toor’s resulting non-compliance with fatigue guidelines. When the supervisors reviewed daily run sheets, they signed without any debriefing, reporting in “Vault”, investigating or taking appropriate action in relation to non-compliance. This was despite many of the breaches being apparent on the face of the run sheets.

3. Mr Trenholme, as branch manager, did not comply with the policy because he delegated the audit function to supervisors instead of conducting them himself. When made aware of non-compliance involving Mr Toor and supervisors, he took steps toward the sanctioning of Mr Toor but took no action in relation to supervisors to ensure the situation did not occur again. The only action he took was to signal the potential for future warnings. This was inadequate to prevent further occurrence of what appears to have been a longstanding practice of non-compliance.

Was there a valid reason for Mr Toor’s dismissal?

[57] For these reasons, I find that Cleanaway had a valid reason for the dismissal of Mr Toor, being his repeated false recording on his run sheets of the time his breaks finished. These were not simply mistakes. They had the purpose of ensuring that the run sheets appeared to comply with Cleanaway’s Standard Hours Rules.

Was Mr Toor notified of the reason for dismissal?

[58] Mr Toor was notified in the letter of 19 November 2021 that Cleanaway was proposing to terminate his employment. The letter provided two reasons for dismissal. The first was not a valid reason for dismissal to the extent that it relied on Mr Toor’s failure to take mandatory fatigue breaks in line with NHVR requirements. It was however a valid reason for dismissal in relation to non-compliance with Cleanaway’s fatigue management policy, which I have found applied to Mr Toor.

[59] The second reason given for dismissal was the falsification of legal documents by declaring that Mr Toor had taken breaks that did not reflect the actual breaks taken as per his vehicle’s tracking report. As I have found, this was a valid reason for dismissal.

Was Mr Toor given an opportunity to respond?

[60] Mr Toor was given an opportunity to respond to the reason for his dismissal and did so in his response of 5 November 2021, in meetings on 8 and 12 November 2021 and through his letter of apology on 22 November 2021. Despite these opportunities, Mr Toor’s responses were unlikely to result in an outcome other than dismissal because not all relevant circumstances were brought to the attention of relevant decision makers. On 15 November 2021, Jason Gardner, Heavy Vehicle Driver Trainer, provided advice internally that “under the LSR (Life Saving Rules) policy the driver should be stood down immediately for termination. Unless it can be proven that the driver has not been trained in our Driver Fatigue Awareness training and Life Saving Rules training.” The record-keeping breaches were evident on the run sheets and Mr Toor had attended the relevant training.

Did Cleanaway unreasonably refuse to allow Mr Toor to have a support person present to assist him with discussions relating to his dismissal?

[61] There was no unreasonable refusal by Cleanaway to allow Mr Toor to have a support person present to assist him in discussions about the dismissal. Mr Toor had support persons present for each meeting where the prospect of his dismissal was discussed.

Was Mr Toor warned about unsatisfactory performance?

[62] Mr Toor had been warned in a group “toolbox” setting that accurate recording of hours and breaks was important and that failure to comply might result in disciplinary action, including termination of employment. He had also received training to this effect. However, he was not warned that Cleanaway had concerns about his conduct in relation to the taking or recording of breaks except through the investigation and show cause process.

The size of the employer’s business and access to dedicated human resources management specialists or expertise

[63] Cleanaway employs approximately 6000 employees. The size of the business and its established processes and structures are sufficient to ensure procedural fairness when dealing with disciplinary action. In Mr Toor’s case, relevant allegations were put, an investigation conducted and an opportunity to respond given. The procedure that was followed was not without blemish, because the decision to dismiss had been made before the final opportunity to respond to the proposed termination of employment was provided. Further, the process failed to ensure that relevant decision-makers had knowledge of all of the circumstances of the case, including the events of 5 October 2021, the conduct of Mr Toor’s supervisors in relation to his breaks and Cleanaway’s resistance to the election made by Mr Toor to convert from casual to permanent employment.

Other relevant matters

[64] There are gaps and discrepancies in the evidence of Mr Grech and Mr Trenholme. For this reason, and while I do not accept the submissions of Mr Toor without qualification, where there is a conflict between his evidence and the evidence of Mr Grech or Mr Trenholme, I have preferred the evidence of Mr Toor.

[65] Both Mr Trenholme and Mr Grech stated that Mr Trenholme conducted the random audit of Mr Toor’s run sheets on 5 November 2021. However, the documents show that it was Mr Bhanot conducted the audit on 4 November 2021. Mr Trenholme later clarified that Mr Bhanot had done the audit and asked him for help to look over it. Mr Bhanot did not give evidence in the proceeding. Given his involvement in the history of the matter including as the person who undertook the audit that led to dismissal, I infer that his evidence is not likely to have assisted Cleanaway.

[66] Mr Grech’s evidence in relation to the audit is unreliable. At the time of audit, Mr Grech had limited oversight and no direct knowledge of relevant audit activities. He gave evidence that run sheet errors would usually only be picked up at the audit stage and would not normally be apparent on the run sheets. However, this was not the case in relation to the majority of breaches relied upon to dismiss Mr Toor. Mr Grech also gave evidence that audits were done one at a time from a pile of run sheets, with the ‘random’ element being different days, different times and different drivers. This evidence was different to the evidence of Mr Trenholme who stated that 5-15 drivers would be audited at the same time and that none of the other audits came across his desk. There was no other evidence about audits carried out in relation to any person other than Mr Toor in the proceeding.

[67] Ms Arnold gave evidence that Mr Grech was responsible for actioning her investigation report finding that there was a practice of supervisors signing run sheets in breach of the fatigue management policy each day that should be looked into and rectified in line with Chain of Responsibility guidelines. Mr Grech does not appear to have taken any such action. His evidence was that Mr Trenholme would “no doubt” have followed up the recommendation and “definitely” would have spoken to supervisors about checking run sheets and ensuring breaks are taken properly. He stated that he “would have” asked Mr Trenholme to follow it up (but not that he did) and that in the past, he had given a supervisor a breach “for the same thing as here”.

[68] Mr Trenholme’s evidence is similarly unclear about whether he spoke directly with supervisors or only with Ms Arnold and Mr Grech about supervisor’s non-compliance with fatigue management policy. It may have been that he spoke to both groups. If he did, he simply reminded them about the importance of the run sheet and said that the next person found to have signed off on a mistaken timesheet would receive a verbal or written warning. He took no other action in response to the investigation report, except in relation to Mr Toor. The supervisors who signed off on Mr Toor’s failure to take adequate breaks were not investigated or subject to any disciplinary action. Overall, Mr Trenholme’s evidence appears slanted against Mr Toor, including by drawing attention to irrelevant prejudicial matters (an alleged speeding offence that is denied by Mr Toor and does not appear on his driving record) while omitting directly relevant matters such as his role in relation to the apology letter.

[69] Mr Trenholme stated that the hearing of this case was the first time he had heard about supervisors being involved in the deferral of breaks by drivers, and run sheets not being reviewed and debriefed correctly by supervisors. I cannot accept this evidence. Firstly, it is inconsistent with his evidence about the investigation report. Secondly, if Mr Grech had previously issued a supervisor with a breach of the same kind, it is likely that Mr Trenholme (his direct report) would have known about it. Thirdly, Mr Trenholme was repeatedly told by Mr Toor on and from 5 November 2021 that his supervisors had been involved in the failure to take and/or accurately record breaks.

[70] Cleanaway relies in this case on its zero-tolerance policy for breaches of its Life Saving Rules. However, it is far from clear that a zero-tolerance policy is applied to the taking of breaks in practice. A “non-conformance register” produced following the hearing indicates that formal recording of non-compliance with safety policies, including the failure to take adequate breaks) is rare. Only 3 breaches of the same kind as led to Mr Toor’s dismissal were recorded in the 12-month period from June 2020 to May 2021. And yet a toolbox talk that appears to have occurred over a similar period identifies that “a few drivers” were not taking their breaks and were “deliberately falsifying their run sheets”. Even going on Mr Toor’s run sheets alone, it would seem likely that the incidence of such non-compliance is much higher than recorded. Ensuring drivers take adequate breaks is an important safety objective. However, the value of written safety procedures is quickly undermined if and when they are not applied in practice.

[71] The elephant in the room in this case is the relationship between Mr Toor’s request to convert from casual to permanent employment and the process that led to his dismissal. I am not satisfied that there was no link between the two. The timing is too coincidental and the evidence into the origins of the audit is incomplete. What is clear is that Mr Toor was the only one subject to investigation and disciplinary action for the fatigue breaches even though his supervisors were also involved in those breaches.

[72] Almost from the minute it notified Mr Toor of his right to request conversion to permanent employment in June 2021, Cleanaway did not support his choice to convert. On or about 24 June 2021, Mr Toor was shown but not given the form by which he could elect to become a permanent employee. His attempts to obtain and sign the form were rebuffed and even actively discouraged. Barriers were placed in the way of a request for a meeting with the TWU to progress the matter. When Mr Toor was finally given the form to sign and did so, Cleanaway responded by saying that he had missed the deadline. This response was later replaced with vague operational reasons about the difficulty of accommodating the request because his hours fluctuated. When senior management were told about the issue in the investigation report, they were told simply (and misleadingly) that the matter had “been resolved”. Mr Toor’s request had been refused but the matter was not resolved. He had asked the TWU to become involved and the TWU had agreed. It is likely the matter would have remained in dispute between Cleanaway and Mr Toor had he not soon after been dismissed.

Conclusion on the merits

[73] On balance, I am satisfied that Mr Toor’s dismissal was unreasonable. Cleanaway had a valid reason for his dismissal, but the process it adopted in relation to the dismissal was tainted by the issues discussed above. The fact that Mr Toor was singled out for disciplinary action in its most severe form gives credence to Mr Toor’s submission that the audit arose in connection with his casual conversion request. No consideration was given to alternative disciplinary action that might equally have resolved Cleanaway’s concerns such as a warning and/or the retraining that was then due and/or the close monitoring of his run sheets for a time. The fatigue management policy was not followed and the zero-tolerance policy in relation to the taking of fatigue management breaks was not consistently applied in practice. No other person involved in the breaches attributed to Mr Toor was investigated or sanctioned for their conduct.

[74] Mr Toor was unfairly dismissed.

Remedy

[75] Mr Toor has since found alternative employment and does not seek reinstatement; a position echoed by Cleanaway. I agree that reinstatement would be inappropriate in this case and that compensation is the appropriate remedy.

Viability (s.392(2)(a))

[76] Cleanaway is a business of significant size and there is no evidence that an order of compensation in favour of Mr Toor would impact on the viability of Cleanaway’s enterprise.

Remuneration that would have been received, or would have been likely to receive (s.392(2)(c))

[77] But for the dismissal, Mr Toor is likely to have remained in employment with Cleanaway for a further three months. I make this assessment on the basis that Mr Toor would likely have been the subject of closer scrutiny in the period after 30 November 2021 if he had been warned about the discrepancies on his run sheets instead of being dismissed.

[78] Mr Toor’s average weekly earnings as a casual employee in the 6 months prior to dismissal (not including shutdowns related to the pandemic) were $2,233.59 gross per week. This is the amount that Mr Toor is likely to have earned before tax each week in the 3-month period after 30 November 2021, but for his dismissal.

[79] On that basis, Mr Toor would have earned a gross amount of $29,036.67 in the 3-month period to the end of February 2022 had he not been dismissed.

Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))

[80] As a casual employee, Mr Toor was not given notice of termination or paid in lieu. One month after dismissal, he registered for work and worked for three weeks as an Uber driver. He then worked for 2 days at another waste management company before leaving. I do not have specific details of his earnings in this regard. I assess them as $600 per week for the period driving on the Uber platform (a total of $1800) and $350 per day for the 2 days’ work at the waste management company ($700). Total earnings to the end of February 2022 are assessed as $2500.00 gross.

[81] Accordingly, the calculation of compensation is adjusted as follows:

(a) $29,036.67 (anticipated gross earnings in 3-month period after dismissal)

(b) Less $2500.00 (expected earnings to the end of February 2022)

(c) Subtotal = $26,536.67 gross.

[82] This calculation is intended to put Mr Toor in the position he would have been in but for the termination of his employment.

Length of service (s.392(2)(b))

[83] Mr Toor had just over 2 years’ service with Cleanaway. No adjustment in the amount of compensation is made on this account.

Mitigation efforts (s.392(2)(d))

[84] Mr Toor made reasonable efforts to obtain alternative employment although in my view he could have done more. This is because there is no evidence of any steps taken by Mr Toor to mitigate his loss in the month after dismissal. The amount of compensation should be reduced by 10% ($2653.67) to $23,883.00 gross.

Other matters (s.392(2)(g))

[85] The amount of compensation does not need to be adjusted for contingencies as the 3-month period following dismissal had passed at the time of hearing.

Misconduct (s.392(3))

[86] Mr Toor’s failure to accurately record his break times on the run sheets was a serious matter. The amount of compensation is reduced on this account by a further 10% ($2388.30). This leaves a compensation amount of $21,494.70 gross.

Shock, Distress (s.392(4))

[87] The amount of compensation does not include a component for shock, humiliation or distress.

Compensation cap (s.392(5)&(6))

[88] The gross amount of $21,494.70 is less than the compensation cap of 26 weeks’ pay. No further adjustment of the amount is necessary.

Instalments (s.393)

[89] Cleanaway did not apply to pay any award of compensation by instalments. No order will be made to that effect.

Conclusion on remedy

[90] The compensation figure arrived at in this case does not yield an amount that is clearly excessive or clearly inadequate. I am satisfied that a remedy of compensation in the sum of $21,494.70 gross in favour of Mr Toor is appropriate in the circumstances of this case. Order [PR744174] will issue separately to that effect.

COMMISSIONER

Appearances:

S Toor on his own behalf.
S Edwards on behalf of the respondent.

Hearing details:

2022.
Sydney (by video):
May 23.

Final written submissions:

May 27.

Printed by authority of the Commonwealth Government Printer

<PR743961>

 1   See s. 382(b)(iii) and Reg. 3.05 of the Fair Work Regulations 2009.

 2   Fair Work Act 2009 (Cth), s.385.

 3   Form F3.

 4   Fair Work Act 2009 (Cth), s.388.

 5   Fair Work Act 2009 (Cth), s.23.