| [2017] FWC 105 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bob Millard
v
K & S Freighters Pty Ltd T/A K&S Freighters
(U2016/6862)
COMMISSIONER GREGORY |
MELBOURNE, 6 JANUARY 2017 |
Application for relief from unfair dismissal.
[1] In February 2014 Mr Bob Millard was employed by DTM as a truck driver based at the Air Liquide bulk division depot in Altona. DTM is a division of K & S Freighters Pty Ltd T/A K & S Freighters (“K & S”) and provides the prime movers that haul Air Liquide’s tankers. However, in April last year Mr Millard was accused of tampering with an internal driver facing camera in one of the trucks. It was alleged he had sprayed something on the lens of the camera. The cameras had only recently been installed in the vehicles. He was subsequently dismissed on 29 April 2016 for allegedly “defacing a safety device”. 1
[2] On 11 May 2016 Mr Millard filed an unfair dismissal application with the Fair Work Commission (“the Commission”) and this decision deals with that application.
[3] Mr Garry Dircks appeared on behalf of Mr Millard. Mr Bob Ironmonger appeared on behalf of K & S. Both were granted permission to appear under s.596(2)(a) of the Fair Work Act 2009 (Cth) (“the Act”) as the matter involves a degree of complexity and their involvement might enable it to be dealt with more effectively.
[4] Mr Millard claims he has been unfairly dismissed because his dismissal was harsh, unjust or unreasonable. In dealing with the application the Act requires that the Commission must take into account the various considerations in s.387. It states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(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; and
(h) any other matters that the FWC considers relevant.” 2
[5] The Commission is accordingly required to determine whether Mr Millard’s dismissal was harsh, unjust or unreasonable taking into account the matters in s.387.
[6] Mr Millard was employed by K & S in February 2014 and worked as a truck driver operating from the Air Liquide site in Altona. In the latter part of 2015 K & S began installing driver facing cameras in the vehicles. This system is known as “Drive Cam” and is designed to provide footage of what is happening inside the vehicle when unexpected incidents occur.
[7] On 26 April 2016 Mr Millard was accused of spraying something on the lens of the camera in a truck he was driving during the course of a shift that commenced on the afternoon of Friday 22 April 2016. The shift concluded in the early hours of the following morning. The first written notification he received stated:
“As you are aware, we are currently investigating an incident where a safety device (Drive Cam) has been intentionally defaced/disabled...we are of the belief that you have potentially caused this damage wilfully…At this stage the company is considering termination of employment …” 3
[8] Mr Millard was then dismissed on 29 April 2016 on grounds of serious misconduct despite denying he was involved. He submits the investigation into what occurred was not procedurally fair, and K & S has not satisfied the standard of proof required to find he engaged in serious misconduct that justified summary dismissal. His submissions deal with each of the matters in s.387.
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[9] Mr Millard submits there was no valid reason for his dismissal relating to his capacity or conduct and K & S has not provided evidence to contradict his denial he was involved. He continues to submit the reasons provided for his dismissal were not “sound, well founded and defensible.” 4 He also submits, in the alternative, that if the Commission finds he was responsible the decision to dismiss him on grounds of serious misconduct was disproportionate.
[10] His evidence indicates he had previously worked at the Air Liquide site prior to commencing with K & S, and it was keen to engage him because his familiarity with the work meant he would not be required to undergo extensive training. He said he often received praise and positive feedback about his work performance, but also acknowledged in cross-examination that he was counselled and warned about his conduct and performance on occasions, including a final warning given to him in April 2015. However, he also understood from what he had been told by the HR Department that this warning lapsed after a period of 12 months.
[11] In late 2015 K & S began installing the driver facing “Drive Cam” camera system in the trucks at the site. Mr Millard and a number of other drivers raised privacy concerns about the cameras, and suggested if they were recording constantly this would be an invasion of their privacy. Mr Millard continued to raise these concerns in tool box meetings after the cameras were installed, but then “used them without issue over the months that they were installed prior to my dismissal.” 5
[12] On 22 April 2016 he arrived at the site prior to his normal start time of 4.30pm. He assisted another driver with a truck that was having some problems, and carried out various other tasks in preparation for his departure. The vehicle he was to drive was unattended in the yard for much of this time. In addition, another sub-contractor, who was in the yard at the time, was known for playing practical jokes on other drivers.
[13] He didn’t notice anything unusual when he returned to the vehicle and left the depot to commence his deliveries. He said the shift proceeded as normal, apart from a delivery to a site in Rowville where the street was unusually busy and “packed with cars.” 6 He also indicated that when the gas is transferring during the course of a delivery he is required to be at the rear of the vehicle at all times, and this means he is out of the cabin for a substantial period during the course of any shift.
[14] On 26 April 2016 he was asked to attend a meeting with Mr Jamie O’Malley, who is the Contract Supervisor at the depot. Mr O’Malley told him there was a problem with one of the cameras in a vehicle Mr Millard had been driving, and it appeared something had been sprayed on the camera lens. Mr O’Malley said this had occurred when the vehicle was driven to Geelong. However, when Mr Millard looked at the footage he noticed it was taken on the East Link freeway, rather than on the Geelong route. Mr O’Malley then changed the date when the incident was alleged to have occurred to a time when Mr Millard was working on the afternoon and early morning of 22/23 April 2016. Mr O’Malley told him it didn’t matter anyway, and asked how he was going to explain to his Manager what had happened.
[15] Mr Millard then asked if he could see the camera. Mr O’Malley took him out to the truck and showed him the camera, which appeared to have something white and dusty on the lens. Mr Millard said he told Mr O’Malley that if the substance was on the camera during his shift he didn’t notice it. Another employee who was with them at the time said the substance had a deodorant scent. Mr Millard indicated, in response, that he didn’t bring deodorant to work.
[16] Mr Millard also said it was “common knowledge amongst the drivers that the placement of the camera on the windscreen meant that it could be covered by simply opening the truck sun visor,” 7 and if he had wanted to prevent the camera from filming in the cabin it could have been blocked in this way. He was also contacted by the driver who first noticed the substance on the camera, Mr Shane Brown, who told him it was 3 to 4 hours into his shift before he noticed anything. He also told Mr Millard he wasn’t aware of any smell in the cabin and just happened to notice the camera by chance.
[17] However, Mr O’Malley refused to accept his denial and told him he was to be stood down while the matter was investigated further. He received an email later that day which indicated, in part, “we are of the belief that you have potentially caused this damage wilfully” 8 and provided him with less than 24 hours to respond. He then prepared a written response and was asked to attend a further meeting on 29 April 2016.
[18] Mr Millard said he was told in this meeting that the investigation had revealed he had previously made comments in tool box meetings about the cameras being an invasion of privacy. He responded by indicating that if the cameras were filming 24/7 it would be an invasion of privacy, but he was now aware they were not recording constantly. He continued to deny he had anything to do with whatever was on the camera lens, and was again told it was believed to be deodorant. He again indicated that he didn’t bring deodorant to work. He also asked whether the camera footage showed the incident, but was told there was no need to look at the footage. He was then asked why he should not be dismissed. He responded by indicating, “Well, for starters, I didn’t do what you are accusing me of. Also, I take pride in my work, I come in early, and I can’t remember last time I took a sick day. I’m a hard worker.” 9 No other issues were raised about his work performance in the meeting.
[19] He was then told to wait outside while a decision was made. He was called back in and told by the HR Manager, Ms Kay Evans, that it had been decided to terminate his employment, with effect immediately, on grounds of serious misconduct. Mr Millard stated in response that he believed there was some “hidden agenda about this.” 10 He also said he had not been involved in the investigation, in circumstances where he had been stood down and was unable to discuss the issue with other drivers. He was subsequently provided with a termination letter which indicated K & S had “determined that you caused this damage wilfully” and it “will not tolerate any person who wilfully damages/defaces these devices.”11
(b) whether the person was notified of that reason
[20] Mr Millard submits there was no valid reason for his termination, but acknowledges the reason for his dismissal was provided to him prior to him being dismissed.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[21] Mr Millard was provided with an opportunity to respond to the allegations made, but claims his explanation was not given due consideration.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[22] It is acknowledged that there was no refusal to allow a support person to be present.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[23] The dismissal did not concern unsatisfactory performance.
(f) and (g) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and 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
[24] Mr Millard submits that employees are entitled to expect a “fair go” 12 in matters concerning termination of employment, regardless of the size of the business or the extent of its human resource expertise.
(h) any other matters the Commission considers relevant
[25] Mr Millard submits he has been dismissed on grounds of serious misconduct in the absence of evidence to support that decision. He continues to submit this will make it difficult for him to obtain similar employment in the future, and impact on his personal and financial circumstances.
[26] Mr Millard submits, in conclusion, that his dismissal was unjust because the evidence does not support the conclusion that he was responsible for alleged conduct. He relies on the decision in Byrne and Frew v Australian Airlines Ltd 13 in support of this submission. He also submits that, in any case, the decision to terminate on grounds of serious misconduct was disproportionate in all the circumstances because no damage was caused to the camera, and it was apparently able to simply be wiped clean without incident. In this context he submits the references to the camera being “defaced” was an overstatement, and what occurred could not constitute serious misconduct. He also submits that previous Commission decisions have established that finding serious misconduct has occurred requires a more onerous standard of proof to be satisfied.
[27] He also submits that it was not put to him in cross-examination that he was responsible for what is alleged, and his evidence denying he was involved has not been challenged. He submits this is in breach of the rule in Browne v Dunn. 14
[28] He continues to submit that the evidence does not establish he was responsible for what occurred. Firstly, no reasonable investigation was carried out. For example, his bag was not checked to see if he was in the habit of carrying deodorant, despite his offer for it to be inspected. No tests were carried out on the substance on the camera lens. A photograph of the camera taken by another driver was not produced in evidence. In addition, K & S did not take any photographs to substantiate what occurred. Finally, no enquiries were made of staff in the workshop about how the substance was removed from the camera and how difficult this was.
[29] Mr Millard also submits there were opportunities for other people to access the vehicle. For example, the truck was in the depot for 2 hours before he left to begin his deliveries at 6.30 p.m., and he was also out of the cabin while unloading, when the vehicle was unlocked, for approximately 5 hours during the shift, according to the shift log. In addition, it made no sense for him to interfere with the camera, given the likelihood of being found out. Actions of this kind also conflicted with the evidence of his practice of reporting incidents immediately after they occurred.
[30] He also indicated that he was not the only driver who had raised privacy concerns in tool box meetings about the cameras and no one had ever questioned the drivers’ entitlement to raise these issues in those discussions.
[31] It is also noted that an issue was raised on behalf of Mr Millard about whether the dates and times accompanying the camera shots relied upon by K & S actually coincided with the dates and times when he was driving the vehicle. Both parties were given an additional opportunity to provide further submissions and evidence about this issue. However, the respective evidence and submissions provided were inconclusive.
[32] K & S submits, in response, that its contract with Air Liquide requires it to ensure that appropriate health and safety standards are complied with to ensure safe transportation of the product. It can also be liable for any damage and cost associated with breach of this obligation. In this context, in the middle of 2015, Air Liquide requested that it introduce driver facing cameras in the vehicles to assist in incident analysis and to enhance driver training and development.
[33] Mr Millard, along with the other drivers, was provided with information about the introduction of the cameras as part of this initiative. However, despite being informed about the operating limits of the system he repeatedly raised concerns about the cameras being installed. He repeated these concerns in a toolbox meeting in April 2016.
[34] It also submits that he was also counselled about failing to report damage to a vehicle, and on another occasion received a final written warning. On another more recent occasion he admitted he was not wearing his seat belt when driving between customer sites.
[35] Mr O’Malley met with Mr Millard on 26 April 2016 to discuss the incident involving the camera. He was provided with camera views of the events that caused the camera to be triggered and the footage on that shift. It submits the first photo was taken at approximately 4.30 pm and shows Mr Millard in the picture. The second photo, taken at approximately 1.00 am on the following morning, is illegible. It submits Mr Millard indicated to Mr O’Malley that he may have accidentally sprayed deodorant in the cabin, and this might have caused the camera to be obscured.
[36] Mr Millard was then suspended on full pay and provided with an opportunity to respond to the allegations. He provided a written response in an email. He then attended the meeting on 29 April 2016, however, after considering his response, it decided to terminate his employment on grounds of serious misconduct.
[37] K & S submits it made this decision because it was satisfied Mr Millard had deliberately “defaced” the driver facing camera. It submits his explanation about how the substance might have got on the camera was implausible. In addition, his previous conduct had demonstrated repeated disregard for health and safety requirements.
[38] It submissions continued to address each of the matters in s.387.
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[39] K & S submits it had a valid reason to terminate Mr Millard because he had interfered with a safety device installed in the vehicle to assist in the prevention of road accidents and this constituted serious misconduct.
(b) whether the person was notified of that reason
[40] He was notified of the reason for his termination on 29 April 2016.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[41] K & S submits Mr Millard was provided with the opportunity to respond to the allegations in the discussions with Mr O’Malley on 26 April 2016. He was then offered a further opportunity to provide a written response, which he did. A further meeting was then held with him on 29 April 2019, prior to the decision to terminate his employment.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[42] Mr Millard was provided with the opportunity to have a support person present in these discussions.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[43] K & S submits Mr Millard was counselled and provided with written warnings “on numerous occasions related to his unsatisfactory performance.” These related to incidents in which he was involved in some minor collisions. He also received another warning about not wearing a seat belt.
(f) and (g) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and 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
[44] K & S acknowledges that is does have a dedicated National Human Resource Manager but makes no further submissions regarding these matters.
Mr Beau Harris
[45] Mr Beau Harris is the Contract Manager for the Air Liquid contract and has been in that role since May 2015. He is responsible for overseeing the operational activities at the depots, which employ around 40 drivers.
[46] In late 2015 the business began the process of implementing the “Drive Cam” in cab camera system. This commenced with toolbox discussions and other presentations to the drivers. All vehicles were fitted with the cameras by 14 December 2015 and the system became operative from that date.
[47] On 15 April 2015 Mr Harris met with Mr Millard to discuss an incident that occurred on 13 April 2015, which had been witnessed by another driver. It was alleged that the vehicle driven by Mr Millard had sustained damage to the rear light assembly. At the conclusion of this meeting Mr Millard was told he must complete a competency assessment and was not to return to driving duties until this had been done. However, he became aggressive and annoyed and refused to sign the standard operating procedures document.
[48] It was accordingly decided that HR would conduct an investigation into his behaviour, and another meeting was held with him on 20 April 2015. He was issued with a first and final warning and then completed the required documentation and returned to driving duties.
[49] Mr Harris also indicated in cross-examination that Mr Millard had previously been provided with warnings about his work performance, but these were not a factor that contributed to his dismissal. He also indicated in cross-examination that he understood Mr O’Malley had asked IVCS , the business that operated the Drive Cam system, about whether other footage from the shift was available, but he had not seen this request. He also acknowledged that the substance on the camera had not been tested, but it was assumed it might have been spray-on deodorant. He also acknowledged he had used the word “defaced” to describe what occurred, but agreed the camera was not damaged as a consequence of the incident.
[50] On 26 April 2016 Mr O’Malley notified Mr Harris about the report of a camera being interfered with in one of the vehicles. Mr O’Malley was asked to carry out an investigation, and after reviewing the outcome, including the response provided by Mr Millard, it was decided to terminate his employment. Mr Harris said their client has clear expectations about appropriate safety standards, and by defacing the camera Mr Millard had “bypassed” 15 those expectations.
Mr Jamie O’Malley
[51] Mr Jamie O’Malley is the Contract Supervisor for the Air Liquide contract and has been in that role since May 2015. He reports to Mr Harris and is responsible for supervision of the drivers, including day-to-day allocation of driving tasks. He is also responsible for reviewing a range of information, including the Drive Cam data.
[52] He indicated that Mr Millard “did complain of [sic] a regular basis about the operation of the in cab camera being an invasion of privacy.” 16 He also told Mr O’Malley that “Mr Harris was out to get him.”17 He also had occasion to speak to Mr Millard earlier this year about not wearing a seat belt when driving, and not wearing protective gloves while operating the valve on the tanker. He was provided with a written warning about this incident.
[53] At around 9.00 pm. on 25 April 2016 he was contacted by the Leading Hand on the shift who told him that one of the night shift drivers in vehicle D2304 had reported that the camera in the vehicle had something sprayed on the lens, and was not operational. Mr O’Malley began an investigation into this report on the following morning, and started by examining the online camera data to see if any events had been recorded.
[54] The data indicated that at 4.30 pm. on Friday, 22 April 2016 the camera had been triggered by a jolt in the truck. It also indicated that Mr Millard was the driver at the time. The camera had also been triggered at 1.58 a.m. on the following morning, however, it “showed the camera to be white.” 18 He then spoke with Mr Harris and it was agreed he would discuss the situation with Mr Millard.
[55] Mr O’Malley then arranged to meet with Mr Millard at 3.00 pm on Tuesday 26 April 2016. Mr Ricky O’Brien, the Leading Hand on the day shift, was also present in this meeting as a support person/witness. Mr O’Malley told Mr Millard what had been reported to him and asked if he knew anything about what had occurred. He also showed Mr Millard the photos taken by the camera and suggested it appeared to have been sprayed with something. Mr Millard indicated in response that he had no idea how the camera could have been sprayed in that way, however, after viewing the camera in the truck he asked Mr O’Malley if he would like him to say he had sprayed deodorant around the cabin, and some had sprayed on the camera lens. After a break in the meeting, and a further discussion with HR, it was agreed Mr Millard would be suspended pending further investigation, and a letter confirming this was given to him. He was then suspended on full pay until his termination on 29 April 2016.
[56] Mr Millard provided a written response on 27 April 2016 and this was taken into account. However, it was decided that it was implausible that a third person might have entered the cabin and interfered with the camera, without taking anything. It was also considered that if this had occurred Mr Millard would have been aware, either by sight or smell, of the presence of the substance. It was therefore decided he was responsible and his behaviour constituted serious misconduct given it involved interference with a safety device installed in the vehicle at the request of Air Liquide. It was also decided that the camera had most likely been blocked to prevent an image being triggered of unsafe behaviour, such as not wearing a seat belt or using a mobile phone.
[57] A further meeting was then held with Mr Millard on 29 April 2016. Ms Evans told Mr Millard that the investigation had concluded he had defaced the camera, and this was considered to constitute serious misconduct. He was then provided with an opportunity to indicate why his employment should not be terminated, and he referred in response to his driving attendance and work ethic. However, after further consideration it was decided his employment should be terminated.
[58] Mr O’Malley also indicated in cross-examination that he believed someone had sprayed deodorant on the camera, however, the substance had not been tested, and he had not tried to replicate the incident by spraying deodorant onto glass. However, he said the substance smelt like deodorant, and he had seen it leave similar white marks on other occasions. He also indicated in cross examination that he had put his nose to the camera lens and the substance smelt like deodorant. The vehicle was also driven by other drivers between Friday night/Saturday morning, when the alleged incident occurred, and the following Tuesday when Mr O’Malley inspected the vehicle. He also agreed that Mr Millard offered to let him inspect the bag he took to work each day, but he declined because he “didn’t want to go through his things.” 19 In addition, he had not checked with the workshop to ask how the substance was removed from the camera, and whether this process provided any indication about the nature of the substance.
[59] He also indicated in cross-examination that he had asked the providers of the Drive Cam system, IVCS, whether they could provide any further footage from the evening, but had been told the vision is “pretty much erased straight away.” 20 He also confirmed that the previous warning provided to Mr Millard played no part in the decision to terminate his employment. He also indicated that if the camera had been sprayed prior to Mr Millard leaving the depot to commence his shift he was sure he would have noticed it “because he was very thorough in his pre-checks.”21
[60] He also agreed that it would be an act of stupidity and out of character for Mr Millard to “vandalise the camera in his own truck.” 22 He also agreed that the surveillance cameras in the yard at Air Liquide were not operating at the time, although he was unsure why this was. He also confirmed that Mr Millard was the “loudest person”23 among the drivers “in voicing his disapproval of the Drive Cam system,”24 but acknowledged there was nothing wrong with him expressing these concerns in the regular tool box meetings. He also acknowledged he had received complaints from drivers, including Mr Millard, about a sub-contractor in the yard, and his practice of playing practical jokes on other drivers, however, Mr Millard had not wanted this taken further when he made mention of it.
[61] K & S submits, in conclusion, that Mr Millard’s termination was “just” 25 as he was fully aware of its requirements and had “deliberately defaced the in-cab camera.”26 In addition, his explanation about what might have occurred were “implausible”27 as he would have been aware at the time if something had been sprayed in the confined space of the cabin of the vehicle by someone other than him. In addition, his previous conduct had demonstrated his disregard for compliance with relevant health and safety requirements.
[62] The decision to dismiss Mr Millard on grounds of serious misconduct was based on circumstantial evidence. K & S submits the in cab camera was sprayed with a substance, which appeared to be deodorant, during a shift when he was in charge of the vehicle. Mr Millard had previously expressed concerns that the cameras were an unreasonable invasion of the drivers’ privacy. K & S accordingly concluded he was responsible for the substance being on the camera, and he had “defaced” the camera intentionally. By contrast Mr Millard denies he had anything to do with what occurred. I now turn to consider whether his dismissal was “harsh, unjust or unreasonable” taking into account the considerations in s.387 I must have regard to.
[63] It is noted at the outset that an explanation about the nature of conduct or behaviour that might be encompassed within the phrase “harsh, unjust or unreasonable” is contained in the decision in Byrne & Frew v Australian Airlines Ltd 28 when McHugh and Gummow JJ stated as follows:
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 29
[64] The decision of the Full Bench of Fair Work Australia in the matter of L. Sayer v Melsteel Pty Ltd 30 also provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:
“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 31
[65] I now turn to deal with each of the considerations in s.387 having regard to these authorities.
[66] It is noted, firstly, that it has been established that the existence or not of a “valid reason” is invariably an important issue in any unfair dismissal application, and is often determinative. For example, in the often cited decision of Parmalat Food Products Pty Ltd v Kasian Wililo 32 a Full Bench of the Commission made the following statement about the importance of “valid reason”:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination.” 33
[67] It is also clear that the reason must be objectively valid. It is not sufficient that the employer believes it had a valid reason for termination. This was made clear in the Full Bench decision handed down in Rode v Burwood Mitsubishi 34 at paragraph 19 where the Full Bench held:
“...the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” 35
[68] The decision in Selvachandran v Peterson Plastics Pty Ltd 36 also makes clear that the reason should also be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”
[69] Mr Millard was provided with a letter from Mr O’Malley on 26 April 2016. The letter commenced by stating:
“I write to confirm details of our discussion today.
As you are aware, we are currently investigating an incident where a safety device (Drive Cam) has been intentionally defaced/disabled in D2304. At this stage of the investigation we have determined that the incident has occurred on 22/23 April between the hours of 16:30 and 01:58. It has also been confirmed that you were the only driver of that vehicle during these times and as such we are of the belief that you have potentially caused this damage wilfully and as such we seek your formal response.
It is important that you understand the serious nature of this investigation. At this stage the company is considering termination of your employment and therefore you should also address this in your response.” 37
[70] Mr Millard provided a written response, as requested, setting out when he arrived at work on that day and what he did in the yard before leaving. This included assisting another driver with his vehicle. He also suggested that the camera might have been interfered with while he was making deliveries, as he was out of the vehicle for a considerable period of time. He also denied interfering with the camera in any way. However, he was informed at the conclusion of the investigation that K & S had decided he had “caused this damage wilfully” 38 and it could “not tolerate any person who wilfully damages/defaces these devices.”39
[71] I have already referred to the circumstantial evidence that led K & S to conclude that Mr Millard sprayed the substance on the camera. Mr O’Malley’s evidence also indicates that Mr Millard told him he had sprayed deodorant in the cabin and some might have landed on the camera. Mr Millard denies saying this. His evidence is that he offered to provide the explanation that the deodorant had been sprayed on the camera because Mr O’Malley was so concerned about how he was going to explain to management what had occurred.
[72] The evidence provided on behalf of K & S indicates an investigation was carried out after the substance was discovered on the camera. Mr Millard was stood down while this occurred. That process of investigation recalled that he had previously been the “loudest,” although not the only critic of the cameras, on the basis that they represented an unreasonable invasion of the drivers’ privacy. This, combined with the fact Mr Millard was in charge of the vehicle when the alleged incident apparently occurred, was considered sufficient to justify his immediate termination on grounds of serious misconduct.
[73] However, the evidence also makes clear that a number of things were not done during the investigation into what occurred. No attempt was made to carry out any form of analysis of the substance on the camera, apart from Mr O’Malley apparently sniffing it. No photos were taken of the substance on the camera lens by K & S. No one in the workshop was asked how the camera lens was cleaned after the incident, or how difficult this was, and whether it revealed anything about the nature of the substance on the lens. Mr Millard offered to let Mr O’Malley inspect the bag he took to work each day to see whether it contained deodorant, but this offer was not taken up. There is no evidence of any attempt to ascertain whether someone else, other than Mr Millard, might have been involved in spraying the camera. To compound the problem the surveillance cameras in the yard at the depot were not working at the time, although no explanation was sought or provided about why this was the case. The evidence provided on behalf of K & S also acknowledged that Mr Millard was thorough in regard to his vehicle checks and quick to report vehicle damage when incidents occurred. The process of investigation also seems to have lacked objectivity from the outset with Mr Millard being informed, in his initial discussion with Mr O’Malley, that the camera had been damaged and it appeared he had caused the damage wilfully.
[74] It was also suggested that the camera was sprayed to obscure what was happening in the cabin at the time when it appears the same outcome could be achieved by simply lowering the sun visor. Mr O’Malley also indicated at the outset that the incident occurred while the vehicle was being driven in the Geelong region, when the camera footage relied on indicated it was actually in an entirely different location at the time.
[75] As indicated, the decision to dismiss Mr Millard was based on circumstantial evidence. However, the evidence also indicates much more could have been done to validate or confirm that evidence. Regrettably these things were not done.
[76] Mr Millard also denies he was involved in any way. This evidence was not tested or challenged in any significant way. In addition, there is no evidence that the camera was damaged. There is no evidence that it was in any way difficult to clean the substance from the camera. There is no evidence of deliberate intent to cause damage. There is no evidence indicating Mr Millard had deodorant with him at work There is no suggestion that anything else was a contributing factor in the decision to dismiss him.
[77] These circumstances do raise a significant issue about whether K & S had a valid reason to dismiss Mr Millard. As the decision in Rode v Burwood Mitsubishi 40 makes clear it is not sufficient for an employer to simply maintain or act in the belief that the termination was for a valid reason. It must instead have a valid reason that is defensible and can be justified on an objective analysis of the relevant facts. In the face of Mr Millard’s denials that he was responsible I am not satisfied that on an objective analysis of the facts it can be concluded that he was responsible for what occurred.
[78] A further issue is also raised in this context. Even if Mr Millard was involved an issue of proportionality arises. The camera does not appear to have been damaged in any way. The evidence does not indicate it was difficult to clean. Its operation does not appear to have been impaired in any ongoing way. While it is acknowledged that the cameras are viewed as an important tool in promoting safe driving practices the circumstances involved in this matter do raise a significant issue about whether they provided a valid reason for summary dismissal on grounds of serious misconduct.
[79] Mr Millard was told in a discussion with Mr O’Malley on 26 April 2016 that an incident he was alleged to have been involved in was to be investigated. The details were subsequently set out in a letter provided to him later that day. The matter was again discussed in a meeting on 29 April 2016 when Mr Millard’s termination was confirmed. A further letter notifying him of the reason for his dismissal was provided to him at the time.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[80] Mr Millard was provided with an opportunity to respond, following the discussions with Mr O’Malley on 26 April 2016. He subsequently provided a written response. He was again provided with the opportunity to respond in the meeting on 29 April 2016.
[81] There is no evidence involving any reasonable refusal by K & S to allow Mr Millard to have a support person present in any discussions relating to his dismissal.
[82] This consideration is not relevant as the witness evidence confirms Mr Millard’s termination was not due to unsatisfactory performance.
[83] Mr Millard submits K & S is a relatively large organisation and has the capability and resources to be aware of the appropriate procedures to follow in dealing with matters concerning termination of employment.
[84] K & S does have a dedicated human resource management function but it does not appear that this consideration is of particular significance in terms of providing any explanation for its actions.
[85] I am not aware of any further issues that need to be considered in this context.
[86] In conclusion, having considered each of the matters in s.387 that the Commission is required to take into account I am satisfied in all the circumstances that Mr Millard’s dismissal was at least harsh and unreasonable. In coming to this decision I have had particular regard to the conclusions reached in regard to “valid reason.” I am now required to consider what is an appropriate remedy in the context of the provisions contained in ss.390 and 392.
[87] Section 390 of the Act provides as follows:
“(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.” 41
[88] Previous decisions of the Tribunal have clearly acknowledged that trust and confidence is a necessary ingredient in any employment relationship and, where trust and confidence is lost, reinstatement may be impractical. However, the same authorities have also held that the rationale for the loss of trust and confidence must be sound and rationally based.
[89] In Perkins v Grace Worldwide (Aust) Pty Ltd 42 the Full Court of the Industrial Relations Court of Australia came to the following conclusion:
“Trust and confidence is a necessary ingredient in any employment relationship… So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
…
Each case must be decided on its own merits … In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive.
…
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 43
[90] In addition, in the decision in Australian Meat Holdings Pty Ltd v McLaughlin 44 a Full Bench of the Commission found that:
“We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessary conclusive.” 45
[91] Mr Millard had been employed for just over 2 years at the time he was dismissed. The evidence indicates he was involved in several incidents at work during this time. In June 2014 the vehicle he was driving collided with a bollard while delivering to a customer’s premises. Later that month the left hand side mirror of his vehicle came into contact with a light pole. In November 2014 he apparently reversed into a parked trailer on a customer’s premises in Sunshine. Then, in April 2015, the light fittings on the vehicle he was driving were damaged. When this issue was raised with Mr Millard he was apparently less than the cooperative, and initially refused to undertake further training he was asked to participate in. He was then stood down from driving duties for a period of 2 days until he finally agreed to participate in the training. He received what was described as a first and final warning as a consequence of this incident, although his evidence is that he understood the warning, expired after a period of 12 months.
[92] In February 2016 he received what was described as a “friendly reminder” 46 about not wearing a seatbelt while driving. He then received a further written warning in April for not wearing protective gloves while opening the valve on the tanker during the course of a delivery. Later in the same month the incident involving the camera occurred. In addition, it is presumed that Mr Harris and Mr O’Malley continue to be of the view that Mr Millard was responsible for what occurred, despite the decision I have come to.
[93] It is also noted that aspects of Mr Millard’s behaviour and work performance appear to have been viewed favourably. The evidence of Mr O’Malley indicated that Mr Millard could be relied upon to carry out the required vehicle checks and to report vehicle damage when it occurred. The evidence also indicates he was prepared to assist other employees, when necessary, and was acknowledged for his performance from time to time. However, I am satisfied, on balance, that the various incidents that occurred during his period of employment have led K & S to have a lack of trust and confidence in him. This seems to be the case, in particular, on the part of Mr Harris. I am also satisfied that the incidents referred to provide a rational basis to support this view. In all the circumstances I am accordingly satisfied that reinstatement is not a practicable option. I now turn to consider whether an order for compensation is appropriate.
[94] Section 392 of the Act states:
“Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1 must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.” 47
[1] In deciding what, if any, compensation should be ordered I have had regard to each of the matters contained in s.392 and the evidence I consider relevant in this context. It is also clear from previous decisions that orders in regard to compensation are designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to their unfair dismissal. I have also had regard to the approach adopted by the Full Bench in the decision of Sprigg v Paul’s Licensed Festival Supermarkets (Sprigg). 48 In summary, it requires that the following process be applied. Firstly, an estimate should be made of the remuneration the employee would have received if they had not been dismissed. This requires that an estimate be made about the anticipated period of future employment. Secondly, any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment should be deducted. Thirdly, an amount for contingencies should be deducted. This generally involves the deduction of an amount due to changes in earnings or earning capacity. The figure should next be adjusted for the impact of taxation. Finally, the figure should be assessed against the compensation cap. If the amount is more than the cap then it should be reduced to that level.
[2] K & S is a large organisation. There is nothing to suggest an order for compensation would impact on its viability. Mr Millard was employed for a period of just over 2 years. This is a reasonable period of time, but is not by any means a long period of service. I consider this to be a neutral consideration. K & S submits Mr Millard was unlikely to have continued in employment for a long period given his “track record of damaging equipment and not following safety procedures.” 49 Mr Millard submits, in response, that any issues to do with damage to the vehicles occurred some time ago. It is always difficult to estimate with any certainty how long a person would likely remain in employment. However, despite the incidents referred to I am satisfied it is reasonable to assume Mr Millard would have remained in employment with K & S for a period of at least 6 months, being 26 weeks. Given his weekly gross salary was approximately $3,200.00 this amounts to total earnings of $83,200.00.
[3] Mr Millard’s evidence indicates he made contact with a number of businesses following his dismissal in an endeavour to find other work. He eventually obtained employment at the beginning of August 2016 as a driver, although at a significantly lower salary. Payslips tendered on his behalf indicate his gross earnings per week with that business were approximately $1,224.00 per week. He was also unable to work prior to this time for a period of approximately 5 weeks because of an operation he was required to have.
[4] Applying the approach in Sprigg if Mr Millard had remained in employment for a further period of 6 months he would have earned approximately $83,200.00. When his weekly earnings of $1,224.00 over a period of 13 weeks from the beginning of August 2016 through until 29 October 2016 are deducted a figure of $67,288.00 remains. Despite being summarily dismissed the submissions provided on behalf of K & S indicate Mr Millard received an additional amount of 3 weeks’ pay at the time of termination. This amount should also be deducted. This leaves a figure of $57,688.00. Some of Mr Millard’s earnings also involved additional overtime. This may or may not have continued in the future. I am satisfied that it is accordingly appropriate to deduct a further 20% in respect of contingencies, leaving an amount of $46,151.00. This amount will obviously be required to be taxed accordingly to law. I accordingly find that an amount of $46,151.00 should be awarded to Mr Millard, less taxation. This amount is to be paid within 30 days of the date of this decision. An order to this effect is also issued in conjunction with this decision.
COMMISSIONER
Appearances:
G Dircks for the Applicant.
B Ironmonger for the Respondent.
Hearing details:
2016.
Melbourne:
August 23.
September14.
Final written submissions:
Applicant’s final written submissions received 28 September 2016.
Respondent’s final written submissions received 21 September 2016.
1 Respondent’s Outline of Submissions, submitted 25 July 2016, at [29].
2 Fair Work Act 2009 (Cth) s 387.
3 Applicant’s Outline of Submissions, submitted 1 August 2016, at Attachment BM01.
4 Ibid at [20].
5 Exhibit GD1 at [12].
6 Ibid at [17].
7 Ibid at [46].
8 Ibid at [53].
9 Ibid at [78].
10 Ibid at [82].
11 Ibid at [83].
12 Above n 3, at [44].
13 (1995) 185 CLR 140.
14 (1893) 6 R 67 (HL).
15 Exhibit KS2 at [28].
16 Exhibit KS3 at [8].
17 Ibid at [9].
18 Ibid at [17].
19 Transcript at PN822.
20 Transcript at PN847.
21 Transcript at PN978.
22 Transcript at PN981.
23 Transcript at PN1056.
24 Transcript at PN1056.
25 Respondent’s Final Submissions, submitted 21 September 2016, at [18].
26 Ibid at [18](a).
27 Ibid at [18](b).
28 (1995) 185 CLR 410.
29 Ibid at 465.
31 Ibid at [20].
33 Ibid at [24].
34 Print R4471, 11 May 1999, Ross VP , Polites SDP , Foggo C.
35 Ibid at [19].
36 (1995) 62 IR 371 at 373
37 Applicant’s Outline of Submissions, submitted 1 August 2016, at Attachment BM01.
38 Ibid at Attachment BM03.
39 Ibid.
40 Print R4471, 11 May 1999, Ross VP , Polites SDP , Foggo C.
41 Fair Work Act 2009 (Cth) s 390.
42 (1997) 72 IR 186.
43 (1997) 72 IR 186, 191-2.
44 Print Q1625, 5 June 1998, Ross VP, Polites SDP, Hoffman C.
45 Ibid at page 17.
46 Exhibit KS3 at Attachment JO1.
47 Fair Work Act 2009 (Cth) s 392.
48 (1998) 88 IR 21.
49 Respondent’s Final Submissions, submitted 21 September 2016, at [44](c).
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