[2014] FWC 5656
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.739 - Application to deal with a dispute

Transport Workers' Union of Australia
v
Linfox Australia Pty Ltd
(C2014/3401)

VICE PRESIDENT HATCHER

SYDNEY, 22 AUGUST 2014

Dispute about matters arising under the enterprise agreement and the NES.

[1] This decision reproduces in edited form the reasons for decision which were stated on transcript at the conclusion of the hearing of this matter on 18 August 2014.

[2] The Transport Workers’ Union of Australia (TWU) has made an application pursuant to s.739 of the Fair Work Act 2009 for the Commission to deal with a dispute in accordance with clause 33 of the Linfox and Transport Workers’ Union Road Transport and Distribution Centres Agreement 2014 (the Agreement). Relevantly, clause 33 of the Agreement allows the Commission to arbitrate any dispute about the Agreement or the employment relationship if the prior steps identified in clause 33 have not led to a resolution of the dispute.

[3] The dispute concerns a written warning issued to a truck driver employed by Linfox Australia Pty Ltd (Linfox), Mr Michael Poulson, on 5 February 2014. The warning letter states that at about 10.00pm on 23 January 2014, while driving a Linfox truck with the registration BX51VF on the Hume Highway near South Gundagai, Mr Poulson was observed by another third party truck driver discarding a lit cigarette from the window of his truck. According to the letter, that driver, who is also a volunteer firefighter for the NSW Rural Fire Service, challenged Mr Poulson about this on the UHF radio, and received in reply a tirade of abusive and threatening language. The warning letter stated that smoking in Linfox vehicles was prohibited, and discarding cigarettes butts was a fire hazard, and that Mr Poulson’s conduct constituted not only a breach of the law but also a serious breach of and failure to comply with company instructions and policies. It warned that further disciplinary action would be taken for any future failure to follow company instructions and policies.

[4] The TWU challenges the issue of the letter on the basis that the conduct alleged on the part of Mr Poulson simply did not occur; or alternatively, that it was not reasonable for Linfox to issue the letter in circumstances where there was conflicting evidence about the allegations against Mr Poulson.

[5] Mr Poulson made a witness statement for the purpose of this matter, and was cross-examined on that witness statement. Mr Poulson’s evidence in his statement was to the following effect:

[6] In his oral evidence, Mr Poulson alleged that at about the time of the alleged incident, he had attempted to overtake, ultimately unsuccessfully, the Greenfreight truck driven by the driver who had made the complaint against him, and had then been tailgated by this driver. I note that there is nothing in the evidence which suggests Mr Poulson has ever made this allegation before. It was also made clear by Mr Poulson in his evidence that his truck had a smoke detector in it. Mr Poulson accepted in his evidence that when first questioned about the incident on 24 January 2014 he said “I suppose this is about the Greenfreight driver”. He also accepted that he was a cigarette smoker at the relevant time.

[7] The TWU also called evidence from two other Linfox truck drivers, Mr Jeffery Tisdell and Mr Graeme Shennan, who corroborated Mr Poulson’s evidence concerning the mobile phone calls on 23 January 2014. It was also established from their evidence that it was their practice, when making phone calls while driving, to turn down the UHF radio so it could not be heard during the phone conversation.

[8] Finally, the TWU tendered a statement from another Linfox truck driver, Mr Malcolm Douglas. He said that he had driven the truck with registration BX51VF - that is, the truck which Mr Poulson had driven on 23 January 2014 - on the following day. He did not smell cigarette smoke in the vehicle, or any deodorant which may have been used to mask it.

[9] Linfox called two witnesses in its case. The first was the truck driver who had made the complaint, Mr Anthony Stone. Mr Stone is an interstate truck driver for Greenfreight. He has been an interstate truck driver for 35 years. He is also a volunteer firefighter with the NSW Rural Fire Service. In his written witness statement and in his oral evidence, Mr Stone said:

[10] Linfox also called Mr Christopher Hensworth, its National Safety Manager for its Linehaul Business Unit to give evidence. Mr Hensworth gave evidence about the process taken to investigate Mr Stone’s complaint leading up to the issue of the warning letter. He said that Mr Anastas, Mr Poulson’s direct manager, had initially investigated the incident. Mr Anastas had told him:

[11] Mr Anastas has resigned his employment with Linfox and was not called to give evidence.

[12] Mr Hensworth also gave evidence about the safety risks associated with smoking whilst driving a truck and described a previous incident where this had led to a Linfox driver rolling over a truck when he dropped his cigarette and tried to retrieve it.

[13] I consider that I would only intervene in Linfox’s decision to issue Mr Poulson a warning letter in one of two situations:

[14] I note that the warning in the letter is primarily, if not wholly, concerned with the allegation that Mr Poulson was smoking in his truck and threw the cigarette butt out of his window. That is, although the warning letter included in its narrative of events the alleged abuse of Mr Stone by Mr Poulson, the warning is concerned with the breach of policy and the safety implications involved in smoking in the truck and discarding the butt. This must therefore be the focus of my consideration.

[15] The TWU has not persuaded me that Mr Poulson did not smoke in his truck, and then threw a lit cigarette butt out of his window, at about 10.00pm on 23 January 2014. Indeed I am comfortably satisfied that this occurred as alleged, principally on the basis of the evidence given by Mr Stone. In reaching this conclusion, I rely upon the following matters:

[16] Mr Poulson could provide no credible explanation for why he said “I suppose this is about the Greenfreight driver” when he was told by Linfox that they wanted to discuss an incident with him. And I consider, from the fact that Linfox had to undertake an investigation of CCTV footage to see if Mr Poulson smoked, that he did indeed deny outright being a smoker when first confronted about the issue.

[17] In my opinion, the conclusion that Mr Poulson did indeed smoke in his truck and then throw a lit cigarette butt out the window is sufficient to justify the reasonableness of the issue of the warning letter. For the reasons explained by Mr Hensworth, smoking in the truck is considered a potentially significant risk to safety. Further, as explained by Mr Stone, throwing a lit cigarette butt out the window, especially in dry summer conditions, creates a risk of starting a fire. In relying on Mr Stone’s complaint and statutory declaration to issue a warning letter about this, Linfox clearly had a reasonable basis upon which to act.

[18] It is therefore not strictly necessary for me to make a finding about whether Mr Poulson abused Mr Stone over the UHF radio as alleged. Mr Warnes has submitted that one cannot be absolutely sure that it was Mr Poulson to whom Mr Stone was speaking on the UHF. That is probably correct, although there are good grounds to be reasonably confident that it was Mr Poulson for the reasons explained by Mr Stone. I note that, on Mr Stone’s version of events, he heard Mr Poulson saying that his truck had a smoke detector. It is curious to note that the TWU now rely on Mr Poulson’s truck having a smoke detector to rebut the smoking allegation. It is further curious to note that during the UHF conversation, there appears to have been no doubt that it was a Linfox driver that Mr Stone and the others who later became involved were speaking to - but it has not been suggested that there was any other Linfox driver in the vicinity. In any event, as I have indicated, it is not necessary for me to state any final conclusion about this.

[19] For the reasons I have given, I am not persuaded that I should interfere with Linfox’s decision to issue a written warning to Mr Poulson.

[20] Accordingly, the TWU’s application is dismissed.

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VICE PRESIDENT

Appearances:

T. Warnes for the Transport Workers’ Union of Australia

N. Leon with R. Dalton for Linfox Australia Pty Ltd

Hearing details:

2014.

Sydney:

18 August.

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