[2016] FWC 7952


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Andreas Zang
Toll Transport Pty Ltd



Application for relief from unfair dismissal – transport driver – answered fixed satellite phone call from company whilst driving in remote location – whether aware of obligations at the time – whether in breach of policies – whether misconduct given the circumstances – whether valid reason for dismissal – valid reason found – some prior counselling – permitted to work after the incident on the basis that applicant could be trusted to work safely – conduct not condoned but objectively reasonable to permit return to normal duties – dismissal harsh and unjust in the circumstances – remedy – remedial benefit of reinstatement – contrition and reasonable basis for future expectation of safe work – insufficient grounds for loss of trust and confidence found – reinstatement appropriate and ordered – no order for lost wages – order for continuity of employment and service – application granted – ss.391 and 394, Fair Work Act 2009.

1. Background and case outline

[1] Mr Andreas Zang has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal carried out by his former employer, Toll Transport Pty Ltd (Toll).

[2] Mr Zang is now 56 years of age and commenced his employment in September 2011, as an Infield Driver, originally for Toll Energy Logistics. In July 2015, his employment was “transferred” to Toll. Toll is a major transport and logistics company operating in most regions and industry sectors in Australia. Mr Zang’s position primarily involved the transportation of dangerous goods by B double and B triple trucks in the Cooper Basin in far northern South Australia and the Eromanga Basin in south eastern Queensland, pursuant to a contract between Toll and Santos Limited (the Santos contract).

[3] The Santos contract provides for the transportation of crude oil, water and general freight as well as the provision of mobile lighting towers, rigid vehicles and other related transport services. The Santos contract requires Toll to operate from three locations, including Moomba in South Australia. Toll directly employs in the order of 50 staff in connection with the Santos contract.

[4] Mr Zang was employed on a “fly in - fly out” basis; being two weeks on and two weeks off. He reported to the Moomba based Supervisor, although as an infield driver, he spent little time at the Moomba site itself, working mainly remotely, within the range of 200 to 300 kilometres from that base.

[5] Mr Zang was dismissed on 19 July 2016 on the basis that he had allegedly breached three related policy requirements established by Toll. These all pertain to a single incident involving the use of a phone whilst driving back to the Moomba base on 9 July 2016.

[6] The phone in question was a satellite phone fixed within the vehicle. It was one of three methods of communication provided by Toll and fixed within the prime mover; with the other two being a UHF radio and a “Santos set” or radio, which is a two-way radio linked to a network open to employees and contractors (working for Santos and contracted businesses) in the Cooper Basin and related areas.

[7] In general terms, Mr Zang contends that his dismissal was unfair on the following grounds:

[8] Mr Zang contends that as a result, there was no valid reason for his dismissal, that the dismissal was harsh in the circumstances, and he should be reinstated to his former position.

[9] In general terms, Toll contends that the dismissal of Mr Zang was not unfair on the following grounds:

[10] As a result, Toll contends that there was a valid reason for dismissal, that a fair procedure was followed in making the decision, and that the termination was fair and reasonable in the circumstances. Toll opposes any remedy and indicated that a reinstatement order would not be appropriate or practical given the implications for enforcement of its safety rules.

[11] The various factual disputes and competing contentions must be determined and considered in light of the statutory framework discussed later in this decision.

2. The witness and other evidence

[12] Mr Zang provided a witness statement and gave evidence in the matter. He also relied on the witness statement and oral testimony of Mr David Hook. Mr Hook is employed by another transport contractor which supplies trucks and services to Toll in the Cooper Basin. Mr Hook worked with Mr Zang from the Moomba base for much of the past 6 years, was generally subject to the same policy conditions and arrangements as Mr Zang, and acted as a support person in the show-cause interview leading to the applicant’s dismissal.

[13] Toll relied on the witness statements, and oral evidence of the following Toll employees:

[14] I found that Mr Zang was a nervous witness who sometimes became confused about the sequence of events and his understanding at various times. He also had a tendency to accept propositions that were put to him, even if not entirely consistent with his evidence more generally. Having had the benefit of seeing and hearing Mr Zang give evidence, I am satisfied that these tendencies are a product of his desire to tell the truth in circumstances where he was uncomfortable, rather than an attempt to customise and change his evidence as he went along. Indeed, notwithstanding these concerns, I found that he was an honest witness who gave his perspective in an open and self-effacing manner.

[15] I found that the evidence given by Mr Hook, Mr Richardson and Ms Withers about the facts to be reliable and honest. There are elements of their evidence going to the subjective fairness of events, and these are matters for this Commission to determine.

[16] There are some factual disputes between the parties and I have resolved these according to my assessment of the witnesses, the degree to which the evidence represents a first-hand account of the events, and the natural tendency for recollections of events to be influenced by a range of factors including their subjective views as to what was fair and reasonable.

[17] Toll also provided the in-vehicle footage of Mr Zang taking the call on the satellite phone.

3. The events leading to Mr Zang’s dismissal

3.1 The safety and communications systems in the prime mover and more generally

[18] The general public may well be surprised by the extent of safety systems applied by leading transport industry employers such as Toll. Amongst other systems and technology, those utilised by Toll include:

[19] These safety systems are supported by comprehensive policies and awareness raising initiatives that I will canvass below.

[20] The emphasis upon safety is important for Toll, its drivers and the general public given the nature of heavy vehicle haulage and the risks involved. Distraction from the road is a serious issue in the road transport industry and for drivers more generally. In the case of driving in the Cooper Basin region, there may be fewer risks associated with the level of traffic. However, its isolation and extreme climatic conditions bring other risks including those associated with changing road conditions, and the potential consequences of breakdowns or other mishaps.

[21] These risks made it desirable for Toll to utilise those employees who they assessed could safely and appropriately undertake the particularly remote work. Mr Zang was, at the time of his dismissal, one of the employees trusted to work in the more remote parts of that environment.

[22] I have earlier outlined the three communication systems within the vehicle operated by Mr Zang. Although they operate using somewhat different technology and handsets, each essentially allow for two-way communications. They are all located within easy reach of the driver.

[23] The UHF radio and Santos set are open radio channels, which are accessible to others who are on the correct frequency. They are “answered” by picking up the handset and pushing a button to talk.

[24] The satellite phone uses satellite technology to connect the callers through a “private” conversation. To use, the operator merely picks up the phone and speaks in the conventional sense, without the need to push any buttons.

[25] The use of each of the three communication systems involves the driver physically locating the handset, picking it up, and replacing it when finished. To some extent, the degree of distraction associated with the satellite phone is less, given that it only needs to be picked up and no other operation is necessary to use it. However, I also note that unless the satellite phone is part of an integrated hands-free system, which was apparently not the case here, the driver cannot monitor who the caller is or hear the incoming communication without physically answering the phone. The UHF radio and Santos set can be monitored without picking up the handset.

[26] There is a distinction drawn between satellite (and other phones) and the two-way radios in the policies of Toll and I will return to this aspect shortly.

3.2 The use of the satellite phone by Mr Zang on 9 July 2016

[27] In general terms, there is no dispute about the events on 9 July 2016. I find as follows:

[28] The footage of the incident shows that Mr Zang looked away from the road to replace the handset. It is likely that prior to this vision being recorded, he also looked away for a moment to locate and pick up the handset. This triggered the DSS camera system and led in due course to a report being provided to Toll management.

[29] There is no suggestion that Mr Zang used a personal mobile phone at that, or any other, time.

3.3 The relevant policies

[30] Toll essentially relies upon three policies concerning the use of phones and other communication systems. The Toll Energy, Reasons to Live By document is considered by management 2 to be the primary “front of mind” policy and it relevantly provides:

[31] The Toll Energy, Reasons to Live By document emphasises the importance of safety and notes that a breach of the policy runs the risk of a finding of serious misconduct and disciplinary action potentially including dismissal. 4 Further, the policy distinguishes between the seriousness of the breach and whether the breach was the consequence of inattention or wilful conduct. Appropriately given the context, the policy does not provide an automatic link between the conduct and the disciplinary outcome, with individual cases being assessed according to their own circumstances.5

[32] The Toll Energy Mobile Phone and Audio Devices Procedure presently provides as follows:

… …

… …

[33] Accordingly, the mobile phone policy treats satellite phones as mobile phones and provides that they must not be used except where the vehicle is completely stationary and parked safely. However, I note that the definition of “mobile phone” was apparently added to this procedure in late March 2016. 7 There is no evidence before the Commission as to whether the procedure contained an earlier version of a definition, or any definition, of a “mobile phone” at all.

[34] The third strata of policies are the more general health and safety policy documents. These do not specifically address the detailed requirements but emphasise the obligations to think and act safely.

[35] Toll did not directly rely upon the potential treatment of Mr Zang’s conduct under the relevant road laws and did not contend for a particular application of the laws to the present circumstances. I note that it is likely that answering a satellite phone, even if fixed within the vehicle, would not be permitted under the Australian Road Rules 8 applicable in South Australia where the phone could not be operated without touching the phone itself.9 Further, it is likely that “CB” radios and any other two-way radios are not treated as mobile phones, and not caught by the restriction, under those Rules.10

3.4 Mr Zang’s understanding of the policy requirements

[36] There is evidence to support the notion that Mr Zang was aware of the Rules to Live By and that these were reinforced through various means including tool box meetings. In particular, Mr Richardson undertook a series of presentations in January 2016 about that document and tool box meetings dealing with it were also conducted in June 2016. There is some evidence to indicate that Mr Zang did not attend the actual tool box meeting concerned, despite having signed the attendance sheet.

[37] Mr Zang claimed in cross-examination to the effect that his supervisor gave him the relevant information at the start of his shift, and in order to avoid a delay in work, requested he sign off on the tool box meeting. Whilst this evidence was given convincingly, Toll was not under notice that this proposition would be advanced and I do not consider that it is appropriate to make a finding without the employer having a proper opportunity to deal with this issue. In the end result, it is also not necessary to do so.

[38] I am satisfied that Mr Zang was aware of the Rules to Live By through a variety of means and understood the importance of its message.

[39] There is much less evidence to support the notion that Mr Zang received any specific training in relation to the detail of the mobile phone policy. It is that policy that explicitly confirms that satellite phones are mobile phones according to Toll.

[40] Mr Zang’s position is that he understood at the time of the incident that the satellite phone would only be used in the case of emergencies. It is evident to me that this was a genuine, albeit incorrect, understanding based upon his interpretation of what he had been told and his own experience. That is, Mr Zang was informed by supervisors that, in effect, the satellite phone was not a personal phone and was not to be used for personal calls, other than in the case of emergencies, and in the over four years that he was employed, the phone was only used by Toll on very rare occasions and in circumstances where urgent contact was required. It was not the normal or expected communication channel as far as Mr Zang was aware.

[41] Based upon the evidence before the Commission, the satellite phone is available for normal communications, notwithstanding that the common practice is to use the Santos set, or to a lesser degree, the UHF radio, as the norm. However, the satellite phone has potentially more coverage in some limited areas and has the benefit of allowing for a private conversation should that be required.

[42] In terms of whether Mr Zang understood at the time that he should not answer or use the satellite phone whilst driving, he indicated as various times during his evidence that he was aware that this form of phone was covered by the mobile phone policy, he knew he should not be answering the phone, and did so only as reflex reaction. 11 This was also consistent with the position he advanced at the show-cause interview. However at other times, Mr Zang indicated that he was not told that he should not answer the satellite phone whilst driving and only became aware of the policy requirement after his dismissal.12

[43] I have earlier made some observations and findings about Mr Zang's evidence and they are most apposite here.

[44] On the balance of probabilities, I find that Mr Zang’s understanding about the satellite phone at the time of the events of 9 July 2016 was as follows:

[45] Mr Zang later considered the matter and when informed by Mr Richardson on the next day that he would, in effect, have to fight to retain his job, and having reviewed the written material, he then understood the exact policy requirements and the serious nature of the breach. He also considers that the fact that he could use the UHF radio and Santos set in the same circumstances, but without any risk of sanction, puts his behaviour in context.

[46] These findings are also consistent with the thrust of the position advanced by Mr Zang at the show-cause interview outlined below. However, the concept of the satellite phone being used only for emergencies was not raised by Mr Zang at that time. For reasons outlined earlier, I consider that this was the genuine view of Mr Zang despite not being mentioned at the show-cause interview.

3.5 The show-cause interview leading to the dismissal

[47] Mr Zang was advised of the alleged conduct by Mr Richardson on 10 July 2016. Mr Zang acknowledged that he had answered the satellite phone whilst driving and did not give any further explanation. Mr Richardson confirmed that it was a serious incident and, in effect, that Mr Zang’s employment was in jeopardy. However, Mr Zang was permitted to return to, and continue with, his normal roster and duties, which he did.

[48] A show-cause interview was conducted on 18 July 2016.

[49] There is some tension between the parties as to the detail of the interview. I consider that these differences are influenced by the subjective views of the parties about the fairness of the process. In general terms, I accept that the record of the interview 13 as confirmed by Mr Richardson is a reliable, but not verbatim, summary.

[50] Based upon that summary and the evidence of those who attended, I find that the following major events took place during the course of the interview.

[51] The purpose of the interview as explained by management was to provide Mr Zang with an opportunity to “show-cause” in relation to why his employment should not be terminated following alleged breaches of the multiple procedures; namely, Rule to Live By number 1 – Always drive safely and to the law, TE HSE P618 Mobile Phones and Audio Devices Policy and the Toll Group Code of Practice.

[52] Management acknowledged the role of Mr Hook as Mr Zang’s support person and explained that role in the following terms:

[53] Mr Hook perceived this as being an indication that he could not advocate or speak on behalf of Mr Zang.

[54] The specific allegations were put to Mr Zang in the following terms:

[55] Mr Zang responded to the following effect:

[56] Mr Zang was advised that the matter was serious and that his on-going employment with Toll was under review. He was given the opportunity to raise other factors he wanted Toll to take into consideration. Mr Zang responded to the effect that:

[57] Mr Richardson indicated that “we’ve had these conversations previously about drivers stopping in safe location and ringing back the office.” 18

[58] The interview concluded with an indication that Toll would consider the matter and would shortly advise of a phone meeting to provide the decision. Mr Zang further emphasised that he was very apologetic about the situation.

[59] Mr Zang returned to his normal roster and duties following the interview and for most of the following working day.

3.6 The dismissal

[60] Mr Richardson rang Mr Zang during the course of his shift on 19 July 2016, and advised him that his employment would be terminated, effective immediately, with pay in lieu of notice.

[61] By letter dated 19 July 2016 from Ms Withers, the dismissal of Mr Zang was confirmed in the following terms:

3.7 The earlier safety issues

[62] Toll has a categorised approach to warnings and discipline with various options depending upon the nature and seriousness of the conduct. This includes conversations between supervisors and managers, where a note is taken in the form of a record of conversation (RoC). These are noted on the personnel file through Human Resources but not normally escalated to more senior managers. More formal warnings and disciplinary action, including graduated warnings, are also contemplated. Dismissal is also an option open to Toll where warranted.

[63] The earlier incidents relied upon by Toll are all RoCs. They are, in reverse chronological order, as follows:

[64] I note that in relation to two of these RoCs, Ms Withers incorrectly assumed that the fatigue breaches were a breach of working hours rather than a problem with the recording of the breaks as would appear to be the case from the ROCs themselves. In that regard, the need to maintain proper records is also an important part of the BFM regulations but different from an actual breach of the driving hours requirements. Further, one apparent fatigue breach was the joint responsibility of Mr Zang’s supervisor or other management (who apparently set the hours) and Mr Zang (who apparently worked the hours without notifying management or seeking a change).

[65] I note that none of these incidents, or the events on 9 July 2016, involved any police involvement or infringement notices.

[66] These RoCs are relevant to this matter. They indicate that Mr Zang has breached some safety rules in the past and has been counselled about them. However, the circumstances of the incidents, the nature and level of the counselling, and the fact that none of these led to any formal warnings is also relevant.

4. Was Mr Zang’s dismissal unfair within the meaning of the FW Act?

[67] Section 385 of the FW Act provides as follows:

[68] Mr Zang was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[69] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[70] The FW Act relevantly provides as follows:

[71] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

[72] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Zang’s capacity or conduct (including its effect on the safety and welfare of other employees).

[73] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.20

[74] The failure to follow a lawful instruction or comply with policy which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee’s employment.21 It is however, clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.22 Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.23

[75] In Woolworths Limited (t/as Safeway) v Cameron Brown24 a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,25 considered when a failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:

[76] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,27 Deegan C determined that:

[77] Although also dealing with considerations beyond the existence of a valid reason, in Bostik (Australia) Pty Ltd v Gorgevski (No 1) 29 the Court observed:

[78] I am, on fine balance, satisfied that there was a valid reason for dismissal. Despite some uncertainty about Mr Zang’s awareness of the detail of the mobile phone policy, I have found that he was aware that he should not be answering or using the satellite phone without parking the vehicle, yet did so. There are both contextual and mitigating circumstances that must be taken into account and I will return to these shortly.

[79] However, the policies of Toll are reasonable and compliance with the policies is important particularly given the nature of Mr Zang’s work and the public and personal risks associated with that work. The importance of the safety rules and the potential consequences of a serious breach were also explained to Mr Zang by Toll through various avenues.

Section 387(b) – whether Mr Zang was notified of the reasons for dismissal.

[80] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 31

[81] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.

[82] Mr Zang was notified of the reasons.

Section 387(c) – whether Mr Zang was given an opportunity to respond to any reason related to his capacity or conduct.

[83] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[84] This process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.  32

[85] I find that Mr Zang was aware of the nature of the employer’s concerns about his conduct and had a reasonable opportunity to respond to these concerns.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Zang a support person.

[86] Mr Zang was afforded an opportunity to have a support person attend the meeting leading to the dismissal and this occurred.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Zang – whether he has been warned about that unsatisfactory performance before the dismissal.

[87] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 33

[88] In this case, the dismissal was related to conduct. I have however had regard to the counselling provided to Mr Zang in relation to his safety performance as part of the other considerations below.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[89] Toll is a very large business and has dedicated human resources expertise, which was involved in the process leading to Mr Zang’s dismissal.

Section 387(h) - other matters considered to be relevant.

[90] Amongst other considerations, the Commission should have regard to the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 34

[91] Further, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed. 35

[92] There are competing considerations in this regard. These include the nature of the conduct, including its relative seriousness, and the context in which it took place. Namely, that the breach of the mobile phone policy is serious given the nature of the work and safety risks within the industry involved and that Mr Zang’s conduct involved an immediate reaction to answer the satellite phone in circumstances where he believed that it represented an emergency. In addition, the earlier RoCs must also be considered. When the substance and context of the RoCs are considered, they do raise some concerns but do not reveal a repeated course of conduct, or a negative attitude by Mr Zang towards the safety rules, of the nature now contended by Toll.

[93] It is apparent, given the context, that some significant disciplinary action was appropriate. The policies provide for a series of options depending upon the circumstances and it is evident that Toll does not apply a policy of dismissal for any breach, but rather, assesses the circumstances of each case. The safety and policy considerations outlined earlier in this decision set the context for that assessment and are very important.

[94] Mr Zang relies upon the fact that the phone call on 9 July 2016 was made by Mr Zang’s Acting Supervisor and that it was unnecessary to make the call, given access to the UHF and Santos radios and global positioning data. This forms part of the context but are not mitigating factors in their own right. That is, whilst there is little doubt that this circumstance adds to Mr Zang’s concerns about his treatment, he was not entrapped in any way. Further, there was nothing improper in the Acting Supervisor making the call using the satellite phone and none of this detracts from the fact that Mr Zang could, and should, have parked the vehicle before dealing with the phone call or used one of the radios to contact the base.

[95] The dismissal had a significant impact upon Mr Zang. He lost his employment of some four and half years and has had difficulty in obtaining regular alternative employment despite reasonable efforts to do so. The basis of the dismissal would also not be helpful in that regard. However, in the absence of mitigating or other relevant circumstances, this would not mean that a dismissal for misconduct would be unfair on this basis alone.

[96] I have considered the fact that Mr Zang was permitted to return to normal duties and shift arrangements after Toll became aware of the conduct. It also did so after the show-cause interview. I do not consider that Toll has condoned the behaviour by adopting this course of action. 36 Toll also made payment in lieu of notice and this was appropriate given the decision not to suspend Mr Zang. However, it is evident to me that management took the view that despite being aware of the conduct, it could trust Mr Zang to undertake his work safely and appropriately. This arises from the evidence of Mr Richardson and is significant given the earlier RoCs and the relatively isolated and unsupervised nature of Mr Zang’s work. In any event, I also consider that this assessment was objectively correct and reasonable in the circumstances. Further, there was nothing in the show-cause interview that should have changed that confidence. On the contrary, his continuing acceptance of responsibility and contrition would have objectively added to that confidence.

[97] Having considered all of the circumstances, I consider that there are a number of factors that make the dismissal of Mr Zang harsh and unjust. These include:

Conclusions on the dismissal

[98] I have weighed all of the factors and circumstances of this application.

[99] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,37 the Full Bench observed:

[100] I have found, on fine balance, a valid reason for dismissal.

[101] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position. 38The Commission is also directed to ensure a “fair go all round”. This is reinforced by the objects of this Part of the FW Act in s.381 including ss.(2) which provides as follows:

[102] There was no procedural unfairness associated with the dismissal.

[103] Having regard to the provisions of s.387 of the FW Act as applied to my findings in this case, I am persuaded that Mr Zang’s dismissal was harsh and unreasonable. The dismissal was therefore unfair within the meaning of the FW Act.

5. Remedy

[104] Mr Zang seeks reinstatement to his former position with associated orders. In the alternative, he seeks compensation. This is opposed by Toll.

[105] Division 4 of Part 3-2 of the FW Act provides as follows:

[106] The prerequisites of ss.390(1) and (2) have been met in this case.

[107] Mr Zang seeks reinstatement to his former position with the maintenance of continuity of service. He has not secured any significant or on-going work since his dismissal and has taken reasonable steps to seek alternative employment. Mr Zang did not advance any specific proposal in terms of the compensation for the lost remuneration arising from the period between dismissal and any reinstatement, but rather, expressly left that issue in the hands of the Commission.

[108] Toll is opposed to that outcome on a number of grounds including that, in effect, it has lost trust and confidence in Mr Zang to perform work in the future in a safe and policy compliant manner. It also expressed concerns about the impact of reinstatement upon its capacity to enforce its safety policies.

[109] Section 390 of the FW Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, it is proper to firstly consider whether reinstatement is appropriate.

[110] In Australia Meat Holdings Pty Ltd v McLauchlan39 a Full Bench of the AIRC, having considered the language of the Act operating at that time, which is comparable to the present provision, said:

[111] More recently, a Full Bench of the Commission further considered the statutory scheme surrounding the remedy provisions including the role played by an alleged loss of trust and confidence felt by the employer. In Colson v Barwon Heath,40 the Full Bench found as follows:

[112] The Full Bench further observed that consideration of reinstatement involved a balancing of the relevant considerations based upon evidence,41 and that the approach outlined in Perkins remains sound and requires consideration of the “rationality” of the basis of the employer’s concerns.42

[113] In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter43 the Full Bench conveniently summarised the approach required as follows:

[114] Given the potential remedial benefit of reinstatement in the circumstances of Mr Zang, it is appropriate to assess the basis upon which that course of action is opposed within the framework provided by the decisions outlined above, along with other considerations bearing upon this discretionary judgment.

[115] In this case, I have also found that the taking of disciplinary action in connection with the incident was warranted and, in effect, the maintenance of appropriate discipline within Toll in that regard was particularly important given the nature of the work and safety risks within the industry. Further, those factors that have led to the view that the dismissal was harsh and unjust are also important contrary considerations.

[116] I have, on fine balance, found that a valid reason for dismissal existed, but determined that the termination was unfair given the entire context. Depending upon the circumstances, an order for reinstatement might be appropriate as it is capable of directly addressing the impact of the dismissal. However, each case must be considered on its own facts and there is no automatic relationship between the findings on merit and remedy.44

[117] In this case, I consider that reinstatement of Mr Zang is appropriate. There is not a sufficient objective basis to support the notion of a loss of trust and confidence given all of the evidence now before the Commission. This includes the actual nature of the conduct, Mr Zang’s response to that conduct and his genuine recognition and remorse, and the assessment made by Toll itself in the period following the discovery of the conduct. In reaching this conclusion I have also considered the responses provided by Mr Zang to evidence about how he might conduct himself if returned to the workplace. This indicates that he is now aware of the detail of the relevant obligations and is genuinely committed to following them. I have also considered the fact that at one point in his evidence, Mr Zang indicated to the effect that he would do his very best to ensure that there would be no future safety issues, but this fell short of an absolute guarantee.  45 When considered in context, this is a reflection of his honesty and general nature, rather than an indication of a lack of commitment.

[118] Further, there is nothing in the other circumstances evident here that would mean that reinstatement is inappropriate or inconsistent with a fair go all around.46

[119] Section 391(3) of the FW Act contemplates that the Commission may make an Order to restore lost pay. This is a discretionary power. Given the circumstances, the fact that Mr Zang has obtain some limited work and received some remuneration from alternative employment at a rate significantly less than his income when with Toll, and the desirability of reinforcing the need to comply with safety polices, I do not consider that such an Order is appropriate here. I will however make an order maintaining the continuity of Mr Zang’s employment and service under s.391(2) of the FW Act.

[120] I also consider that the action Toll is able to apply under its disciplinary policy to Mr Zang given any reinstatement, when combined with the significant loss of earnings resulting for Mr Zang from his dismissal and the absence of any order for lost wages, will mean that the safety culture Toll seeks to apply will not be undermined.

[121] An Order 47 to give effect to this decision is being issued in conjunction with this decision. The Order will come into force with a lead time of just over two weeks. This is appropriate given the location of the work in question and the need for both parties to make the necessary arrangements.



E Lawrie, of the Transport Workers’ Union of Australia, for Mr Andreas Zang.

C McCutcheon, on behalf of Toll Transport Pty Ltd.

Hearing details:



2 November.

 1   An AB triple consists of a prime mover, a semi-trailer, a converter dolly, and a B-double trailer.

 2   The evidence of Mr Richardson.

 3   Attachment GW4 to the Statement of Ms Withers (Rule 1 of the Rules to Live By) Exhibit R1.

 4   Attachment IR2 to the Statement of Mr Richardson – Exhibit R2.

 5   Ibid – flowchart appended to the policy document.

 6   Attachment GW3 to the Statement of Ms Withers Exhibit R1.

 7   Noted in the policy document and a variation made in March 2016.

 8   Australian Road Rules as adopted by South Australia under its Road Safety legislation.

 9   Ibid at Rule 300(1). This assumes that a satellite phone would be treated as a “mobile phone”.

 10   Ibid at Rule 300(4).

 11   Including- recording at 10.52 am and 11.20 am.

 12   Recording at 10.56 am and 11.22 am.

 13   Attachment IR6 to the Statement of Mr Richardson – Exhibit R2.

 14   Ibid.

 15   Ibid.

 16   Ibid.

 17   Ibid.

 18   Ibid.

 19   Attachment GW6 to the Statement of Ms Withers Exhibit R1.

20 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].

21 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.

22 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 (17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.

23 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

24 PR963023 (26 September 2005) (footnotes omitted).

25 PR928970 (19 March 2003) at [14].

26 PR963023 (26 September 2005) at [34]. See also B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 at [48], [65] and [67].

27 [2009] AIRC 893 (16 October 2009).

28 Ibid at [54].

 29   (1992) 41 IR 452 per Sheppard and Heerey JJ.

 30   Ibid at p 460.

 31   See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

 32   RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

 33   See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

 34   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 35   See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

 36   See the discussion of condonation in Rowland and Rollason v Austar Coal Mine Pty Limited [2010] FWA 8011 and by the Full Bench in Marijan v Rail Corporation New South Wales T/A Rail Corp [2013] FWCFB 215..

37 [2011] FWAFB 1166.

 38   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]; Miller v University of New South Wales (2003) 132 FCR 147 at [13].

39 AIRC Print Q1625, per Ross VP, Polites SDP and Hoffman C, 5 June 1998.

40 [2014] FWCFB 1949.

41 Ibid at [49] to [51].

42 Ibid at [60].

43 [2014] FWCFB 7198. See also JBS Australia Pty Ltd v Mr Scott Challinger [2015] FWCFB 520.

44 Ibid at [22].

 45   Recording at 11.25 am.

46 s.381 of the FW Act.

 47   PR587571.

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