| [2018] FWC 6273 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Natalie Bain
v
CPB Contractors Pty Ltd
(U2018/5376)
SENIOR DEPUTY PRESIDENT HAMBERGER |
SYDNEY, 9 OCTOBER 2018 |
Application for an unfair dismissal remedy – alleged serious misconduct – Briginshaw principle – misconduct not established by the evidence – dismissal was unfair – compensation ordered.
[1] Natalie Bain (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy on 23 May 2018 under Part 3-2 of the Fair Work Act 2009 (the FW Act), in relation to her dismissal by CPB Contractors Pty Ltd (CPB or the respondent) on 3 May 2018.
[2] The applicant’s letter of dismissal included the following:
‘This letter confirms the details of the discussion held with you on 3rd May 2018.
The meeting arose as a result of a formal complaint received regarding an incident involving you on 21st April 2018. A thorough investigation was carried out and you were given the opportunity to respond on 30th April 2018 and your response was taken into consideration before issuing this termination letter.
In accordance with the WestConnex New M5/AWU Tunnelling Works Greenfields Agreement 2016-2020, your employment will be terminated effective immediately 3 May 2018….
Glen Day
General Superintendent – Arncliffe
WestConnex New M5’
[3] I heard this application in Sydney on 22 August 2018. Ms Bain gave evidence in support of her case, along with Pera Hauraki. CPB adduced evidence in support of its case from Robert Skinner, Ben Meers, Timothy Corbett, Tim Winitana, Deirdre Foley, and Glen Day.
[4] The applicant represented herself. The respondent was represented, with permission, by A DeBoos of K & L Gates, solicitors.
[5] Section 396 of the FW Act sets out four matters which I am required to decide before I consider the merits of Ms Bain’s application.
[6] There is no dispute between the parties, and I am satisfied on the evidence, that:
(a) Ms Bain’s application was made within the period required in s.394 (2) of the FW Act;
(b) Ms Bain was a person protected from unfair dismissal;
(c) the respondent was not a ‘small business employer’ as defined in s.23 of the FW Act, so the Small Business Fair Dismissal Code does not apply to the dismissal; and
(d) Ms Bain’s dismissal was not a case of genuine redundancy.
[7] It remains, therefore, for me to consider whether Ms Bain’s dismissal was harsh, unjust or unreasonable. Section 387 of the FW Act 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.’
[8] In determining whether Ms Bain’s dismissal was harsh, unjust or unreasonable, I will consider and take into account each of the matters specified in paragraphs (a) to (h) of s. 387 of the FW Act.
[9] In addressing s.387(a) of the FW Act, the Commission must consider whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).
[10] In cases relating to alleged misconduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 1
[11] In cases where allegations of serious misconduct are made, such as the present, the standard of proof in relation to the alleged conduct remains the balance of probabilities, but, as Dixon J said in Briginshaw v Briginshaw 2 (Briginshaw), ‘…the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.’
[12] In Briginshaw, Dixon J said:
‘Except upon criminal issues to be proved by the prosecution, it is enough that that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.’ 3
[13] At all material times, the respondent was in a joint venture for the construction of the WestConnex New M5 Project (Project) in Sydney.
[14] The applicant commenced employment with the respondent on 2 May 2016 as a receptionist at the head office in Mascot. 4 She subsequently became an administrator at the Project’s Arncliffe site.5
[15] In around July 2017, the applicant expressed an interest in becoming a plant operator, and received the appropriate training. 6 This included a safety induction. In March 2018, she signed a Safe Working Method Statement for the Arncliffe site, which included a section on operating mobile equipment.7
[16] At the time of her dismissal the applicant was employed to operate articulated dump trucks (‘Moxys’) at the Arncliffe site. According to the applicant, there were two types of these trucks at the site, 730 and 740 tonnes. 8 My understanding is that there are indeed two truck models produced by Moxy Engineering – one has a capacity of 28 tonnes and the other a capacity of 40 tonnes. I assume that these are the trucks referred to by the applicant.
[17] It is clear from her dismissal letter that the applicant was terminated for her alleged misconduct during an incident on Saturday, 21 April 2018. However, an incident that occurred the previous day provides some relevant context.
[18] In her statement, Ms Bain said:
‘On Friday the 20th of April there had been a verbal exchange between myself and Robert Skinner when he came to borrow tools from the area I worked in. It started when I asked if he would make sure the tool was returned. He asked ‘who do you think you are?’ he then told me ‘everyone hates you’ I replied ‘well everyone thinks you are a cocksmoker’. 9
[19] During her cross-examination, the applicant said that prior to this incident she had not had much to do with Mr Skinner. 10
[20] The applicant said during her cross-examination that when she asked Mr Skinner whether he was going to return the tool, he told her he was not the one who would be using it.
‘I said that if you’re borrowing it you need to ensure it’s returned. A lot of the tools had gone missing so we were instructed to just be aware of who was taking them and you know, where they were going, who had them. He said to me from memory, who do you think you are, which I couldn’t understand the aggression behind that when I was asking something we’d all been told to ask…
That’s when he told me it’s true what everyone thinks about you and that’s when I said, what is that? He said everyone hates you. That’s when I replied everyone thinks you’re a cocksmoker.’ 11
[21] The applicant conceded this was not her ‘finest moment… but I don’t think it was harsh in comparison to what he’d just said.’ 12 She said that she did not say anything else to Mr Skinner.
[22] The applicant said that she reported this exchange to her shift boss Pera Hauraki later that day. 13 She said during her cross-examination that she was insulted by the way Mr Skinner had spoken to her, but was not angry.14
[23] In his written statement to the Commission, Mr Skinner said that he had known the applicant since she first started working on the permanent shafts at the Arncliffe site. They rarely had any interaction:
‘Until 20 April 2018, we had only exchanged pleasantries and were always polite.’ 15
[24] Mr Skinner described the 20 April 2018 incident in his statement in this way:
‘On 20 April 2018, at approximately 4:30 pm, a colleague asked me to request a hammer drill from Pera Hauraki. I approached Pera who was standing next to Natalie at the time.
Pera and I had a brief discussion:
Me: “Our TE 70 hammer drill stopped working. Can we use yours?”
Pera: “Yes. I’ll check if we have one.”
At this point Pera’s phone rang and he walked away to take the call. Natalie then started talking to me:
Natalie: “Are you going to bring it back?”
Me: “I’m not the one using it so I don’t know”
Natalie: “If you can’t guarantee it’s coming back then you’re not taking it.”
Me: “Yep. OK.”
Natalie: “Why are you such a smart ass?”
Me: ‘I’m not”
Natalie: “You’re an arrogant prick.”
Me: “I’m not asking you Nat. I’m asking Pera.”
Natalie: “You’re a fucking dickhead. You’re just a dickhead.”
Me: “So is it true what everyone says about you.”
Natalie: What? Your dickhead crew?”
Me: “No. Everyone.”
Natalie: “I don’t care what everybody thinks”
Me: “That’s lucky”.
Natalie: “Do you know what everybody thinks about you?”
Me: “Don’t use my line, Nat”
Natalie: You’re a fucking cock smoker.”
I laughed.
Natalie: “Just leave. Just go. Go back over there. You’re such a fucking dickhead.”
Pera finished his call, looked for the hammer drill and told me he could not find one. I thanked him and left. I did not mention to Pera the verbal exchange I had just had with Natalie.’ 16
[25] During his oral evidence, I put it to Mr Skinner that his version of events was implausible. However, he replied:
‘That’s exactly how it happened’. 17
[26] Mr Skinner said his reference to ‘what everyone says’ about the applicant was ‘to stay away from her… That she’s trouble. That she is argumentative that always starts arguments… which I’d never found her to be that way… Until that day.’ 18 Our exchange continued:
‘Right. So you’re saying people said – so who had said to you that she was difficult or argumentative?---Other guys on the other crew that have dealt with her.
On her crew--- or your crew? --- Both. Both crews.’ 19
[27] Mr Skinner said that later that day, Carl Glendining, the supervisor, called him into his office in relation to this incident, and asked for something in writing about what had happened. 20
[28] Mr Hauraki said in his statement:
‘I was in the vicinity of our toolbox with Robbie who was asking to borrow a tool. Nat asked Robbie if he was going to return the item. Robbie began to answer when my phone rang. I moved away and took the call.
Apparently a verbal exchange had taken place between the pair whereby they both insulted each other.
There didn’t seem to be anything else other than the name calling.’ 21
[29] In response to a question, Mr Hauraki said there was rivalry between work crews. 22 He said that he and the applicant were in one crew, and Mr Skinner, Mr Meers, Mr Winitana and Mr Corbett were in another crew.23
[30] There is no doubt, from the evidence of both Mr Skinner and the applicant, that there was a bad-tempered verbal altercation between them, after the former asked to borrow a tool. However, they give rather different versions as to how the argument developed. I find Mr Skinner’s description of the event inherently implausible. In particular, he says that after the applicant told him he could not borrow the tool, he responded ‘Yep. OK.’ Following this, according to Mr Skinner, the applicant, with no obvious provocation, directed a stream of abuse at him, calling him ‘a smart ass… an arrogant prick… [and] a fucking dickhead.’ 24
[31] The applicant’s version, on the other hand, makes logical sense. Mr Skinner, on being challenged by the applicant about borrowing the tool, responded with a ‘who do you think you are?’ in an aggressive tone, and then made his comment about what other people thought about her. She responded by abusing Mr Skinner.
[32] Mr Skinner gave the following evidence in his statement about the 21 April 2018 incident.
[33] He said that he was standing on the side of the road at an intersection, when he heard a dump truck revving. 25
[34] He said that he was trying to reach a pedestrian crossing so he could cross the road. He described this crossing as ‘a designated crossing for pedestrians crossing that road, which all workers at the site are aware of.’ 26
[35] He said that he thought he had ample time to cross the road. 27
‘However, by the time I had reached the crossing and was crossing the road, I had heard the dump truck change gears three times. The dump truck was travelling quite fast and not slowing down so I quickened my pace. When I was on the crossing the dump truck was only 10 metres away from me and the driver began beeping the horn.
When the driver started beeping the horn, I looked up at and saw it was Natalie driving.
I had to jump off the crossing to avoid getting hit by the dump truck. It missed me by about 30cm. It had passed me at full speed (which is limited to 20km/h on those vehicles.)
I turned around and heard the dump truck roar as it slammed its brakes to avoid colliding with a sweeper truck at the intersection.’ 28
[36] Mr Skinner said in his statement that Ben Meers (who was with Tim Corbett) yelled out to him:
‘That was dangerous! You should report that!’ 29
[37] Mr Skinner said that he then walked over to a supply shaft where he saw Marty Delaney and Wade Cairns. He said he told them:
‘Nat almost run over me with the Moxy.’ 30
[38] Mr Skinner said that he was shaking after the incident, so he went and sat in an excavator to calm down. 31
[39] Mr Skinner said that while in the excavator, Tim Winitana came to see him. He asked him if he was OK and Mr Skinner told him what had happened:
‘I was not being very responsive and did not feel like talking. I was thinking about my kids and about how close I was to never seeing them again. I just wanted to go home.’ 32
[40] Mr Skinner said that after sitting in the excavator for about 40 minutes, he got down and saw the applicant walk past. He says that she stuck her middle finger up at him. He shook his head and turned to walk in the opposite direction when he saw Tim Winitana again, who asked him what the applicant’s problem was. Mr Skinner says he responded ‘Mate, she’s got issues’. 33
[41] In his statement Mr Skinner said that he just wanted to go home ‘as all I could think about were my two daughters and how close I was to never seeing them again.’ 34
[42] Mr Skinner said in his statement that shortly after the incident, Mr Glendining texted him following up on the written report he had asked him for the previous day about the verbal exchange with the applicant. He attached a series of text messages between himself and Mr Glendining on Saturday, 21 April 2018. This included the following:
10:54 ‘Send me email as requested please. Nat wants to see me today.’ (Carl Glendining)
10:59 ‘I sent it yesterday afternoon? I’ll send it again.’ (Robert Skinner)
11:02 ‘Did you get it?’ (RS)
11:07 ‘Didn’t get anything’ (CG)
11:09 ‘Spoken to her today’ (CG)
11:10 ‘She just tried running me over with a moxy. Does that count?’ (RS)
11:22 ‘That’s normal. No points for that.’ (CG)
11:26 ‘Shit I thought I’d be worth 5points’ (sad emoji) (RS)
11:27 ‘I sent it again let me know if you don’t get it’ (RS) 35
[43] In his statement, Mr Skinner said he was standing on the side of the road when the truck started ‘revving’. 36 He said that as he was crossing the road he distinctly heard the dump truck change gears three times and observed it travelling, if not at full speed, then close to it.37
[44] In his oral evidence, Mr Skinner said that he was already on the pedestrian crossing when he saw the truck coming. 38
[45] During cross-examination, the applicant said to Mr Skinner:
‘You were back at work on the Monday night after the Saturday incident. So you’re saying – you’re alleging that I tried to kill you on the Saturday but I was in my truck on the Monday night driving and you were in and around the vicinity of my truck over a period that night. I can remember you walking over to the temp shaft at one point. What changed? --- I recall going to the toilet. Like I walked over there but I wasn’t comfortable going over there.
But there are multiple toilets on site. You didn’t have to come near me at all on the Monday night? --- Well, that’s just the toilet I go to.
So were you scared of me because I tried to hurt you, but you went to the toilet right near where I was parked? --- I made sure that there was plenty of people when I walked over there.’ 39
[46] According to Mr Skinner’s statement, Mr Glendining asked him on Monday, 23 April 2018 whether he was willing to put everything with the applicant behind him. He said he was prepared to let go of the events of 20 April 2018, ‘but not the fact that she tried to run me over the next day’.40
[47] In response to a request from Mr Glendining, Mr Skinner provided him with a written statement. This included the following:
‘Incident 2 – Saturday 21 April 2018 at 10:40am
On Saturday 21/04/18 I was walking back from the toilet block to the supply shaft. I was at the intersection near the wheel wash when I heard a moxy start to rev up I didn’t hear any horn signals as I began to cross the road I had heard the moxy change gears 3 times. I looked down the road and seen that the moxy was moving very fast, I started to walk faster across the road (pedestrian crossing) at this point the moxy was within 10m from me and the driver began to beep the horn.
I had to jump forward on my last step to avoid the moxy from hitting me, which at that point had missed me by less than 30cm, the moxy had gone passed me which I believe at full speed I turned around and seen that the moxy had to slam on the brakes to avoid a collision with the sweeper truck.
Then Ben Meers a fellow worker who was walking with Tim Corbett along the walkway near the gold course (sic) yelled out at me saying “that was dangerous and that I should go and report it”. I walked over to the supply shaft and seen Marty Delaney and Wade Cairns I was shaking at this point, they asked what happened? I told them that Nat almost run over me with the moxy, ben and Tim walked over and asked if I was OK?
Still shaking I went and sat in an excavator to calm down, after about 40min I got out of the excavator and Nat was walking past I looked over at her and she gave me the middle finger I shook my head and turned and walked in the opposite direction, I seen Tim Winitana and he said “I just seen that what’s her problem?” I told him what had happened. I just wanted to go home the only thing I could think about were my two daughters and that today was close to them never seeing me again.’41
[48] In his statement, Mr Skinner said that he was later interviewed by Deirdre Foley from human resources in relation to what had happened on both 20 and 21 April 2018. Mr Glendining was also there. The record of that interview attached to his statement included the following:
‘DF asked Robert to explain what happened on Saturday 21 April 2018
• Coming back from smoko crossing the road
• I didn’t walk in the pedestrian walkway because the shaft is pumping out water so I avoided it by walking along the edge of the road and then on to the pedestrian crossing
• On the corner of the intersection I heard the moxey rev up and take off – it changed gears really quickly
• When I was on the pedestrian crossing the moxey was 10 meters from me
• I thought I had ample time to cross
• She missed me by “that much, 30 cm I’d say”
• I had to jump off the crossing so I wouldn’t get hit
At what point did you know who was in the moxey?
When she started beeping I looked up and seen it was her, Nat Bain
…
What are the site rules plant vs people?
I thought pedestrians had right of way on a pedestrian crossing like with road rules. She did not attempt to slow down. She seen me.
Did anyone else witness this happening?
Ben Meers and Tim Corbett were across the road from the intersection. Ben yelled “that’s bullshit go report that now.”
…
Have you ever seen Natalie drive erratic since this incident?
No it was out of character for her because she is a good driver usually she drives in first gear because she is driving towards the intersection and only down to the deline shed… ’42
Mr Meers’ evidence about the 21 April 2018 incident
[49] In his written statement, Mr Meers said that on 21 April 2018, he was with his colleague, Mr Corbett, when he saw Robert Skinner nearly get hit by a dump truck being driven by the applicant. He said that Mr Skinner was crossing the road at a designated walkway at the time. 43 He attached a typed copy of a handwritten statement he had made to the respondent on 24 April 2018. This included the following:
‘On Saturday around 10:40am I was walking back to work from smoko break when I observed a moxy at high speed along the side haul road, as I looked over a seen someone (Robert skinner) on the pedestrian walkway, at this time the moxy didn’t attempt to slow down maintaining the same speed started beeping the horn like crazy.
The moxy had passed and the person (RS) walked up the stairs, before I knew it the moxy came to a screaming halt as there was a sweeper truck headed up the haul road the moxy then drove off like nothing happened.
I immediately rushed over to the worker (RS) to see if they were OK as I really thought this was all too close for comfort. I suggested we report this as he seemed shaken up and how much of a near miss it was and how aggressive the driver seemed to be (a loaded moxy at high speed = dangerous). After a while he settled down and we went back to our duties.
All this seemed very dangerous and unsafe and needs to be addressed.’ 44
[50] Mr Meers was interviewed by Carl Glendining and HR advisor Deirdre Foley on 26 April 2018. The ‘Record of Conversation’ was attached to his written statement. 45 This included the following comments from Mr Meers:
‘I asked Ben to explain what he saw on Saturday, 21 April 2018
…
• It was pretty scary what happened, I just happened to look up, it was so quick
• The moxey was travelling at high speed about 20km and was the width of the road
• Bobby (Robert Skinner – RS) was walking half way across the road and nearly got hit by the moxey, it was bloody close
• About 10-15 meters away from the pedestrian walkway where RS was, the moxey started beeping the horn like crazy but did not slow down
• Moxey was screaming down the road & it had to pump the brakes to come to a halt at the intersection and that was after the pedestrian walkway
• It was NB in the moxey
• The moxey nearly hit the sweeper truck, the sweeper plods along at 2km
• RS jumped off the road and we lost vision of him for a minute because formwork was blocking our view
• Then we saw him (RS) on top of the stairs
• I called out to him, I am quite loud, ‘holy f*ck that was close are you OK’ I thought we were going to have to pick him up off the ground…’
[51] Mr Meers is recorded as saying that he did not report the incident on the day because ‘safety were on call… and Pera was the only Shift boss on duty Pera and Nat are close, I didn’t want to stick my nose in too much but I was honestly worries [sic] about RS.’ He said that he had never seen the applicant drive erratically before and said ‘she is a good enough driver.’ 46
[52] During the hearing I asked Mr Meers what he could see. He replied ‘Everything’. 47
‘Right? --- So I could see the truck from when it was – when it took off ---
Right? --- heading straight along the haul road.
Right. And so it was driving along when Mr Skinner walked into the area – the crossing area? ---Yes.
So it was already driving down that road? --- Yes. Yes.
And did it accelerate when he was on the road? --- It was already full steam ahead.
Right. Okay. So it was already full steam ahead and then he walked on the road? --- Sorry. He was – the distance – there’s designated walkways there.
Yes? --- And the truck was heading along that road and he was already walking on that crossing – walking across the crossing? --- Oh, God ---
How wide is the crossing roughly? ---A bit – one lane.
Yes?---Probably.
So it wouldn’t take very long to cross it, would it? --- No.
So well it was two or three seconds or five seconds? --- Yes, maybe five seconds.
Five seconds. So when he was on the road how far – so the truck was already driving?---Correct.
So how far away was it when he walked on the road? --- I didn’t see that.
Right. So you didn’t see him walk on the road? ---No.
So the truck was – so are you saying – so how close did the truck get to him?---I think I – approximately about probably 10 to 15 metres I reckon.
Ten to 15 metres? ---Yes, it was just all very close. Too close for my liking.
Right? --- Considering the side of the truck et cetera.
Right. So he was – so you’re saying that the truck got as close to 10 to 15 metres from him? ---Well, that’s yes, my approximate.
Yes?---I can’t give a definite thing.’ 48
[53] In his written statement, Mr Corbett said that on 21 April 2018, he saw the applicant driving a dump truck which nearly hit Mr Skinner, as he crossed a pedestrian crossing. He said he was with Mr Meers at the time. 49
[54] Mr Corbett attached a typed version of a written statement he gave to the respondent on 24 April 2018. This included the following (with typographical errors corrected):
‘On Saturday around 10:40am I was walking back from the crib rooms. When I heard a moxy accelerating aggressively toward another worker who was going across the pedestrian crossing the driver had seen who it was and started to beep the horn and head straight for the other worker with what looked like the intent to hit as the driver narrowly missed the worker they then realised they had almost entered on to the haul road and kicking up the brakes and stopping just before coming in contact with a sweeper truck, there was definitely no need for what happened especially with the little space we do have.’
[55] Mr Corbett was interviewed by Mr Glendining and Ms Foley on 26 April 2018. The ‘Record of Conversation’ included the following:
‘I asked Tim to explain what he saw on Saturday 21 April 2018
• I was walking along with Ben Meers and we were opposite the intersection when attention was drawn to a beeping horn & saw the moxey driving around 16km down the haul road
• It was accelerating aggressively, gear changing. It’s all in my statement.
• I seen co-worker (RS) walk ¾ way across the pedestrian walkway and the moxey nearly hit the RS
• The moxey then had to slam brakes at the intersection to avoid hitting the sweeper truck
• It was pretty dangerous
…
You said in your witness statement that there was an ‘intent to hit’, that is a big accusation to make
Yes, maybe intimidate is a better word.’
[56] During the hearing I asked Mr Corbett what he saw on 21 April 2018:
‘---Yes, I was just walking across going back from smoko.
Mm-hm? --- Yes, smoko and yes, I just seen the haul truck coming down the road at –
So how fast was it coming?---Oh, it would have been in top gear because I didn’t hear how they rev as I drive one myself.
So it was in top gear? --- Yes.
So you didn’t hear it – kind of ---?---Yes, I heard it change up as I was walking across but I didn’t really take any notice at the time.
Right?---I was walking across – until – yes, Ben said there was Robbie that was walking across the haul road.
So what did you see? Sorry? --- Oh, I seen it coming down the road obviously.
Yes?---But, yes, I didn’t really take much notice to the speed it was travelling.
It was coming down the road. So, you didn’t notice the speed---I did notice the speed that it was moving fast, yes.
Right? --- But I didn’t really register at the time. I was just like a normal day as I was walking past.
Right? --- Yes.
So when did you register something? --- Like until I seen Robbie was like walking but I didn’t like---
Sorry, I’m confused? --- Oh, you’re confusing me sorry.
Well, I want you to describe what you saw? --- Yes, well the dump truck was coming down the road.
Yes? --- Robbie was walking across which is ---
So why did you notice him walking across? --- Like Benny called out. He’s like “Robbie’s close to the dump truck.” Yes.
So you didn’t register anything until your colleague told you, “Oh, look”? --- Yes.
“There’s someone – you know – that Robbie’s walking on the road.”---Correct.
“And the dump truck.” And so was the dump truck was it slowing down? Speeding up? --- No, it was---
Going a steady speed? --- and then I heard the horns beeping which ---
Right? --- yes, and then ---
And then what? ---Yes, there was no slowing down at all.
And so how close did the dump truck get? So did you see how close-sorry, the truck got to Skinner?---No, I couldn’t see as I was walking past another machine.
So you couldn’t see how close it got? --- No.
Well, why couldn’t you see? --- Because there was a machine on the haul road. So you had to walk past it and it blocked the view.
Right. And so you didn’t see it go past him or you didn’t? --- No. I missed that part – yes.
So you didn’t see – you know – so you didn’t see – you know – so you didn’t see how close it was to him?—Mm.
Right. Yes So what did you see? --- Just the coming down – like coming down fast on the haul road.’ 50
[57] During his re-examination, Mr Corbett said that he noticed the speed the dump truck was travelling when he heard the horns. 51 He said at that point he heard the truck revving at top gear.52
[58] In her written statement, the applicant did not go into detail about the 21 April 2018 incident. She did however say that she told Carl Glendining on Monday, 23 April 2018 (before night shift started) that Mr Skinner had walked on to the haul road in front of her Moxy in Saturday 21 April.
[59] The applicant also said in her statement to the Commission:
‘I strongly dispute Roberts [sic] version of events’. 53
[60] The applicant had given a more detailed version of events in the statement she made on 30 April 2018 to Ms Foley and Mr Glendining during its investigation of the incident. A ‘Record of Conversation’ was attached to Ms Foley’s statement. 54
‘DF: There is an allegation against you whereby you were driving a moxey dangerously on site towards Robert Skinner the next day 21/04/2018. Can you tell me in your own words what happened. This is an aerial map of where the incident was reported to have happened, can you point out where you were and where Robert was
NB: you mean when RS stepped out in front of me?
NB: I was told by the excavator operator to go with the load
I looked down the road and I seen RS & BM & TC from where I was parked up.
I drove 2/3km down the road
RS stepped out to cross the road
I beeped twice and put hands up to say are you kidding me
I stopped the moxey and waited for him to cross
He should have waited for me to pass
DF: Did the moxey come to a complete stop?
NB: yes
DF: why did you beep the horn?
NB: because he should have waited, he just stared at me when crossing the road
I drove off and went to the decline shed
I reported it to PH after because it was just getting ridiculous
He was being a nuisance
DF: What was ridiculous about the situation?
The stare down as he crossed plus he should not have crossed.
NB: I seen BM & TC looking over when I beeped, they were on the other side of the road at the intersection
I then stopped at the intersection
DF: What are the site rules plant vs people?
NB: Pedestrians wait for the plant – plant has right of way
Pedestrian crossing is access for people but does indicate right of way
DF: did you stop until RS was completely across the road?
NB: yes
DF: where was RS when you drove off again?
NB: on the stairs, the truck doesn’t take off quickly
I got to the intersection and normally the traffic controller would be there to signal go, otherwise you use your common sense
DF: when you stopped at intersection was there any trucks or sweepers coming L or R?
NB: no I had clear visibility
DF: did you hear BM or TC call out or reacting at all?
NB: no
DF: Did you see RS after that incident?
NB: No I didn’t see him again, I continued to move the kibble for the rest of the shift and left at 1pm when shift ended
I reported him walking in front of me to PH before the shift ended because it was all so childish and antagonistic. I didn’t think it was a big deal but it can’t continue
DF: what wasn’t a big deal?
NB: Truck incident wasn’t a big deal he shouldn’t have stepped out but lots of things happen on site
You should check the camera after smoko around 11am
DF: what is the speed limit along that haul road (pointed at map)
NB: 20km but you would not get that fast
I don’t drive fast
I only go 16km when I get to the shed, speed bumps at water treatment plant
DF: was your speed 16km on the haul road driving towards Robert?
NB: no way! Impossible that did not happen! From where I was to where I stopped. I was driving 5kms tops.
I had time to stop
Protocol is he should not have stepped out on to the road
DF: you stopped the truck to a complete halt at the crossing and again at the intersection
NB: yes
NB asked – why wasn’t this reported on Saturday if it was so concerning?
DF: Nat the incident was reported on Saturday to CG
NB asked – were CCTV camera’s checked
DF: yes they were, there is no clear visual of the road where this happened
NB to CG: did you check the camera on the perm shaft?
CG: that camera just takes still shots every 15 minutes, which is no good as it is not a video camera
NB: I was stood down based on a lie and you have no proof because you have no footage. Benny is texting people on site to say I nearly ran someone over.’
[61] The applicant was asked about her version of the incident during her cross-examination.
[62] The applicant said that it was 100 metres or less from when she started up her dump truck to the crossing. 55 She said that Mr Skinner had not been in the road when she first saw him.56 However, he walked into the road after he saw her ‘take off’.57 The applicant said she saw Mr Skinner walk into the road when he was a little more than eight metres away from her, though she said she did not know the exact distance.58 She said that she was not going very fast.59 Indeed, she said:
‘Well because I was going at a snail’s pace I stopped immediately’.
[63] The applicant was asked by Ms DeBoos:
‘When you made your statement, you were quite clear that you stopped about six to eight metres before you reached him?---Well, again, I had to guess an actual distance without being on site, without having any scale of what – I could see his whole body, so the trucks are high and when people would come and walk in front of the truck they disappear because you’re so high up.’ 60
[64] The applicant later reiterated that she stopped around 6 to 10 metres away from the crossing. ‘Like I said, I could see his full body. It wasn’t close.’ 61
[65] The applicant agreed that the road she was driving on was not much more than three metres wide. 62 While she said it would not take long to cross the road, ‘… he did stop in the middle of the road, so it took him longer than it would take me.’63
[66] The applicant was asked how fast she was travelling down the haul road at the time.
‘I’ve estimated five to eight kilometres, but again I – there’s mention in here of trucks going up to 20 kilometres an hour, but the one I was in was modified, it was only 16 kilometres an hour. They’d come off another job site which must have had a different speed limit. Considering the weight of the truck, it’s not like you can take off quickly. You can’t get up to 16 kilometres in any given time.’ 64
[67] The applicant denied that she would have been able to get up to ‘a reasonable speed’.
‘It’s a 740 tonne truck with – so it’s got 40 tonne on it. They didn’t take off quickly and they didn’t pick up speed quickly.’ 65
[68] The applicant denied she slammed the brakes on when she stopped at the intersection. 66
[69] Mr Skinner’s allegation against the applicant is very serious. To accept his evidence is to accept that the applicant deliberately drove a very large truck at full speed directly at him and that she only missed hitting him by about 30 centimetres. This implies that the applicant was either trying to murder Mr Skinner, or was driving in such a reckless manner as to place his life in grave danger (perhaps in order to ‘intimidate’ him, to use Mr Corbett’s word). Consistent with the principle in Briginshaw, therefore, one would need very good evidence before accepting that such an allegation is true on the balance of probabilities.
[70] I find myself unable to accept Mr Skinner’s version of events, for a number of reasons.
[71] First, it is inherently implausible. While Mr Skinner and the applicant had had a verbal altercation the day before, there is simply no indication that it was so inflammatory as to have motivated the applicant to try and kill Mr Skinner or recklessly endanger his life. Apart from the argument the day before, the respondent does not suggest any other possible motivation.
[72] Secondly, I am very concerned by the inconsistencies in Mr Skinner’s evidence. Mr Skinner said that he was shaking after the incident, so he went and sat in an excavator to calm down. Mr Skinner said that while in the excavator, Tim Winitana came to see him. Mr Winitana asked him if he was OK and Mr Skinner told him what had happened. He said he was not being very responsive and did not feel like talking. He was thinking about his kids and about how close he was to never seeing them again. He just wanted to go home.
[73] However, Mr Skinner also attached a series of text messages between himself and Mr Glendining to his written evidence, which took place shortly after the incident. Mr Glendining was chasing Mr Skinner up for his response in relation to the applicant’s complaint concerning the verbal altercation the day before. Mr Skinner, apparently in passing, asked if it would ‘count’ in his favour that the applicant had just tried to run him over with a Moxy. 67 The dialogue that followed with Mr Glendining was clearly light-hearted, with Mr Skinner joking that running him over should have been worth at least five points and adding an emoji to the end of his message. This is not the behaviour of someone who, about 20 minutes earlier, genuinely thought that he had come within 30 centimetres of being deliberately killed and who ‘was thinking of his kids and about how close he was to never seeing them again.’
[74] Thirdly, I am concerned about the poor quality of the evidence of the two supposed eyewitnesses, Mr Meers and Mr Corbett. Indeed, the evidence of Mr Meers, who said he could see ‘everything’, directly contradicted the evidence of Mr Skinner on a key point. When asked how close the truck got to Mr Skinner, Mr Meers said about 10 to 15 metres. While Mr Meers said he could not be exact, even so, this is clearly totally different from the 30 centimetres referred to by Mr Skinner.
[75] Mr Corbett’s oral evidence was particularly vague. He told the Commission he could not see how close the truck came to Mr Skinner. This contradicts his statement to the respondent during its investigation, in which he had said that he had seen the truck driving straight at Mr Skinner ‘with what looked like the intent to hit as the driver narrowly missed the worker’. While he changed ‘intent to hit’ to ‘intimidate’ in his interview with the respondent, he still maintained that he saw the truck nearly hit Mr Skinner.
[76] Having had the opportunity to ask questions of these two witnesses and observe them give their evidence, I do not consider either of them to be credible.
[77] I also note that both Mr Meers and Mr Corbett work in the same crew as Mr Skinner, and could reasonably be inferred to be his ‘mates’. Mr Hauraki said there was rivalry between work crews. This makes the failure of the respondent to call the sweeper truck driver (who would presumably not have been from the same crew) even more concerning, as it would potentially have provided corroborating evidence from someone who was not in Mr Skinner’s crew. While the sweeper truck driver may not have seen Mr Skinner cross the haul road, he or she surely could have confirmed (or contradicted) the evidence of the respondent’s witnesses that Ms Bain nearly collided with his or her truck.
[78] In summary, I have grounds to seriously doubt the veracity of the evidence given by the respondent’s witnesses in relation to the 21 April 2018 incident.
[79] By contrast, I found the evidence of the applicant about what occurred that day to be credible. She gave her evidence in a clear and direct manner, and made concessions when appropriate. There were no significant inconsistencies between what she said to the Commission and what she had told the respondent during its investigation. Accordingly, where there is an inconsistency between the applicant’s version of what occurred on 20 and 21 April 2018 and that of the respondent’s witnesses, I prefer the former.
[80] In particular, I am satisfied that the applicant was driving at her normal speed of five to eight kilometres per hour 68 down the haul road when Mr Skinner walked out in front of her at the crossing. This annoyed the applicant, who thought she had right of way, and she sounded her horn. However, she still stopped her truck and allowed Mr Skinner to cross. She neither drove in a dangerous manner nor put Mr Skinner’s safety at risk. It follows, accordingly, that the respondent had no valid reason to dismiss the applicant.
[81] I am satisfied that the respondent notified the applicant of the reasons why it was considering dismissing her and gave her an opportunity to respond.
[82] I am satisfied that the applicant was not unreasonably refused a support person.
[83] In this case, the reason for dismissal related to the applicant’s conduct, not her performance, so this consideration is not relevant.
[84] The respondent is a large business enterprise. I do not consider that its size would be likely to impact on the procedures followed in effecting the applicant’s dismissal.
Absence of dedicated human resource management specialists or expertise (s.387(g))
[85] The respondent has dedicated human resource management specialists and expertise, so this consideration is not relevant.
[86] I do not consider there are any other relevant matters that I need to consider.
Conclusion in relation to whether the applicant’s dismissal was harsh, unjust or unreasonable
[87] I am satisfied, on the evidence, that the applicant did not engage in the misconduct for which she was dismissed. In those circumstances, I must conclude that her dismissal was unjust.
[88] The applicant is not seeking reinstatement and I do not consider that it would be appropriate to make such an order.
[89] I do, however, consider that an order for compensation in lieu of reinstatement is appropriate.
[90] At the close of the hearing on 22 August 2018, 69 I asked the parties to provide me with further information on the applicant’s earnings. I received two documents in response. The respondent sent me the applicant’s final pay slip (for the period 30 April to 6 May 2018), and the applicant sent me her pay slip for the period 16 to 22 April 2018. I have based my assessment of the appropriate compensation amount on these.
[91] Sections 392 and 393 of the FW Act provide as follows:
‘392 Remedy—compensation
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.
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.’
[92] There is no evidence that any order I might make would have any effect on the viability of the respondent.
[93] The applicant had about two years’ service with the respondent at the time of her dismissal. I consider this a neutral factor in determining an amount of compensation.
[94] I will adopt the approach in Sprigg 70 in assessing the amount of remuneration the applicant would have received or would have been likely to receive if he had not been dismissed.
[95] The first step is to estimate the length of time the applicant would have been employed if he had not been dismissed.
[96] The applicant said that the part of the project that she was working on was expected to finish by around December 2018 or January 2019. I therefore estimate the applicant would have been employed for a further eight months if she had not been dismissed.
[97] Based on the applicant’s oral evidence 71 and some of the applicant’s pay slips, I estimate that the applicant would have earned about $96,000 during this period (taking into account her hourly rate of pay, plus an amount for anticipated compulsory overtime).
[98] The second step is to deduct any remuneration received (or expected to be received) by the applicant between her dismissal and the end of her anticipated period of employment. The applicant’s evidence is that she has been earning about $800 a week as a temporary clerical employee (though she has applied for infrastructure work). 72 I will deduct an amount of $26,000, leaving a figure of $70,000.
[99] The third step is to make an allowance for contingencies. I consider that a deduction of 20 per cent would be reasonable, reducing the provisional amount to $56,000.
[100] As in Sprigg, I propose to settle on a gross amount, before taxation.
[101] In relation to the issue of mitigation, I am satisfied that since her dismissal the applicant has obtained alternative (though lower-paid) employment, and has applied (if so far unsuccessfully) for better-paid work on infrastructure projects.
[102] I am satisfied that I should apply a small discount for misconduct by the applicant. She behaved inappropriately (even if provoked) during the altercation with Mr Skinner on 20 April 2018. There is also uncontested evidence that she made a rude gesture to Mr Skinner after the incident on 21 April 2018. I will deduct $2,000 for this misconduct.
[103] This leaves a figure of $54,000. I am confident this is well under the compensation cap, based on the applicant’s earnings over the six months prior to her dismissal.
[104] The respondent should pay $54,000 in compensation to the applicant as a remedy for unfairly dismissing her. An order to this effect will issue concurrently with this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
N Bain, the applicant, in person.
A DeBoos, solicitor, for CPB Contractors Pty Ltd.
Hearing details:
Sydney.
2018.
August 22.
Printed by authority of the Commonwealth Government Printer
<PR701181>
1 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, 17 March 2000).
2 Briginshaw v Briginshaw (1938) 60 CLR 336, 363 (Dixon J).
3 Ibid 362.
4 Exhibit 10 [14]; PN54.
5 Exhibit 10 [16].
6 PN55-60.
7 Exhibit 10 attachment GD-4.
8 PN83.
9 Exhibit 1 [1].
10 PN109.
11 PN111-2.
12 PN114.
13 Exhibit 1 [2].
14 PN128.
15 Exhibit 5 [4]-[5].
16 Ibid [6]-[9].
17 PN563.
18 PN569-71.
19 PN572-3.
20 Exhibit 5 [11].
21 Exhibit 4.
22 PN529, 539.
23 PN534-7.
24 Exhibit 5 [8].
25 Ibid [13].
26 Ibid [14].
27 Ibid [15].
28 Ibid [16]-[19].
29 Ibid [20].
30 Ibid [21].
31 Ibid [23].
32 Ibid [24].
33 Ibid [26].
34 Ibid [27].
35 Ibid attachment R2.
36 Ibid [35].
37 Ibid [36].
38 PN635.
39 PN594-6.
40 Exhibit 5 [29].
41 Ibid attachment RS-2.
42 Ibid attachment RS-5.
43 Exhibit 6 [8].
44 Ibid attachment BM-1.
45 Ibid attachment BM-2.
46 Ibid.
47 PN708.
48 PN709-29.
49 Exhibit 7 [5].
50 PN753-81.
51 PN792.
52 PN769.
53 Exhibit 1 [14].
54 Exhibit 9 attachment DF-3.
55 PN189.
56 PN194.
57 PN195.
58 PN210.
59 PN214.
60 PN227.
61 PN292.
62 PN234.
63 PN236.
64 PN237.
65 PN240.
66 PN313.
67 Exhibit 5 attachment RS-2.
68 PN237.
69 PN1192-204.
70 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21.
71 PN437-43.
72 PN449-60.