[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:
● He did not smoke in the truck at all on the night of 23 January 2014.
● He only used the UHF radio to contact a fellow Linfox employee, Mr Jeffery Tisdell, to tell him he would call him on his mobile phone.
● In the period from 9.44pm to about 10.21pm he was engaged in a series of telephone calls with other Linfox drivers (using a hands-free device).
● Screenshots of his mobile phone taken the following day identified the telephone calls made at the time he stated. I interpolate at this point that the screenshots identified times but not dates, in that they referred only to the date as “yesterday”. However I did not understand Linfox to dispute that they identified calls which Mr Poulson had actually made or received on 23 January 2014.
● He could not therefore have had the abusive conversation alleged in the written warning, because, if he had, the other Linfox drivers he was speaking to would have heard it over their mobile phones.
[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:
● He was driving north on the Hume Highway at about 10.00pm on 23 January 2014, at a location he identified south of Gundagai, when he was overtaken by a Linfox B-double.
● He observed the make of the truck (Volvo), the B-trailer registration (VT58IN), that it was a drop-deck trailer, and that it was red with Arnott’s markings.
● After the Linfox vehicle passed him, he observed the Linfox driver throw a lit cigarette butt out the window. He saw it come out of the window, hit the base of the drop-deck of the A-trailer and bounce alongside the B-trailer, emitting a shower of sparks as it did so. He was about 30 metres behind the rear of the Linfox truck when this happened, and 56 metres behind its cabin, and it was night-time; however his truck headlights were illumating the vicinity of the Linfox truck at this time.
● He then used his UHF radio to contact the Linfox driver. He addressed his call to the driver of a Linfox B-double, and received an immediate response from the driver. His UHF radio was indicating a signal strength of 9 at the time indicating that the driver he was speaking to was not very far away.
● He reproved the Linfox driver for throwing the cigarette butt out the window. The driver abused him in reply, but also said that his truck was fitted with a smoke detector. Some other drivers then joined in the conversation, including one who alleged that Linfox drivers chucked cigarette butts out their windows and caused fires, which prompted further abuse from the Linfox driver.
● Mr Stone then called Linfox the following morning to make a complaint.
[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:
● When told that Mr Anastas wanted to discuss an incident which had occurred the previous day, Mr Poulson said “I suppose this is about the Greenfreight driver”.
● During the initial discussion, Mr Poulson had said that he did not even smoke and was on his mobile phone at the time.
● Mr Anastas then viewed CCTV footage of Mr Poulson smoking in the yard. When he subsequently raised this with Mr Poulson, Mr Poulson had said “I gave up smoking at the start of January but I still have the occasional puff”.
[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:
1. if I was positively persuaded by the TWU that the matters the subject of the warning letter simply did not occur; or
2. there was no material upon which Linfox could reasonably have formed the conclusion that those matters occurred.
[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:
● Having seen and heard Mr Stone give evidence, I am satisfied that he was a witness of truth. There was no suggestion that he knowingly gave false evidence, nor did he have any identifiable reason to do so.
● His evidence was entirely consistent with his original complaint to Linfox on 24 January 2014, and with the statutory declaration he made about the incident on 28 January 2014.
● Those matters which were capable of independent verification in his original complaint and statutory declaration were all confirmed to be correct. He was able to correctly and precisely identify Mr Poulson’s truck - that it was a Linfox truck, the make of the truck, the truck configuration, the B-trailer registration, and the Arnott’s markings. Further, his identification of the location of the truck and its direction of travel as at 10.00pm on 23 January 2014 was confirmed by Linfox’s Foxtrax data system.
● His description of the lit cigarette butt being ejected from the window was entirely believable and in accord with common everyday experience. No credible alternate explanation for what Mr Stone saw was suggested.
● Mr Poulson admitted to being a cigarette smoker in his evidence.
● Aspects of Mr Poulson’s evidence diminished his credibility such that I could not accept his evidence over that of Mr Stone where they conflict. For example, Mr Poulson’s evidence that Mr Stone had been tailgating him bore all the hallmarks of a recent invention intended to cast doubt on Mr Stone’s evidence. Mr Warnes for the TWU showed proper judgment in declining to put this allegation to Mr Stone.
[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.
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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