[2021] FWC 354
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr David Stewart
v
Linfox Australia Pty Ltd
(U2020/8505)

DEPUTY PRESIDENT LAKE

BRISBANE, 25 JANUARY 2021

Application for an unfair dismissal remedy – whether there existed a valid reason for dismissal – serious misconduct – application dismissed.

[1] On 19 June 2020, Mr David Stewart (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Linfox Australia Pty Ltd (the Respondent) was unfair.

[2] The matter was heard by video conference on 15 October 2020. The Applicant was represented by Ms Michelle Kelly, a solicitor from Twomey Dispute Lawyers. Mr Blake Byrne, a workplace relations advisor, appeared for the Respondent. On the basis of both parties being represented, and no objections raised, the parties were granted leave to be represented in this matter.

BACKGROUND

[3] The Respondent is in the business of transport and logistics services. The Applicant was employed by the Respondent as a Transport Worker from 14 February 2014 until his dismissal on 30 May 2020. At the time of the Applicant’s dismissal, he was employed as Fuel Driver at the Murrena Street site in Pilbara (site).

[4] On 10 May 2020, the Applicant reported to Ms Mallory Tucker, the Site Manager, that during his shift driving a Linfox Road Train on 9 May 2020, he had to brake hard to avoid hitting cattle on the road (the braking incident). The Applicant submitted a hazard report for the braking incident on 10 May 2020.

[5] On 19 May 2020, the Respondent reviewed the camera footage to examine the braking incident. The camera footage revealed that during the Applicant’s shift, for approximately 10 seconds, the Applicant used his mobile phone while driving. The Respondent subsequently commenced an investigation into the Applicant’s conduct.

[6] On 21 May 2020, the Applicant’s supervisor, Mr Andrew Dodds, requested a meeting with the Applicant. The Applicant was advised he could bring someone to the meeting. The Respondent submitted that the Applicant was aware of the purpose of the interview prior to its commencement. The Applicant contends he was not advised what the meeting was in relation to.

[7] On 23 May 2020, the Applicant attended the meeting with his support person, Mr Nigel Smith. The interview was recorded. The Applicant was shown the video footage of him using his phone while driving and was questioned by Mr Dodds regarding the footage. During the meeting, the Applicant provided his responses, took a break in the meeting to discuss his responses and signed the Record of Interview (ROI). At the end of the ROI, the Applicant was stood down by the Respondent, pending the outcome of the investigation.

[8] On 29 May 2020 at 2:56pm, the Applicant was advised he was to attend a show cause meeting the next day at 10:00am regarding the matters discussed in the ROI. On 30 May 2020, the Applicant attended the meeting with his support person. Mr Dodds also attended the meeting, as well as Ms Katie D’Lima, a Human Resources Advisor.

[9] The Applicant was afforded an opportunity to provide his view as to why his employment should not be terminated, however it was ultimately determined that the Applicant’s reasons why his employment should not be terminated were not compelling, and at the conclusions of the meeting the Applicant was informed that his employment was terminated by the Respondent. He was provided a termination letter terminating his employment for serious misconduct.

EVIDENCE

Applicant’s statement of evidence

Background to employment with the Respondent

[10] The Applicant provided a witness statement in these proceedings.

[11] He stated that he commenced full-time employment with the Respondent around 14 February 2014, as a Fuel Driver, on a fly in fly out basis from the Port Headland, Western Australia depot. He said that he engaged in a number of further contracts with the Respondent since this time, and from 18 June 2019, he worked as a Fuel Driver operating residentially out of the Port Headland, Western Australia depot. The Applicant stated that this role involved loading fuel from the Port Headland depot and transporting it to BHP mines in the Pilbara, unloading the fuel, and returning to the Port Headland depot.

[12] The Applicant’s supervisor at the Port Headland depot was Mr Andrew Dodds, Senior Operations Supervisor.

[13] The Applicant stated that his employment with the Respondent was governed by the Linfox and Transport Works Union Road Transport and Distribution Centres Enterprise Agreement 2018 (the Agreement). The Applicant was paid $53.70 per hour plus superannuation in accordance with the Agreement, and worked 56 hours per week. He says that he also received meal and accommodation allowances in accordance with the Agreement.

Braking Incident

[14] The Applicant said that during his shift of 9 May 2020, while driving a Linfox Road Train from Port Headland to Newman, at approximately 5.45pm, his Supervisor, Ms Katherine Young, called his phone. He said that he answered the phone over the Bluetooth in the cab of the truck. He stated that daily, his supervisors would call or text him while he was driving, regarding work-related matters such as logistics details and instructions. He said on that occasion, he was driving and speaking to his Supervisor over Bluetooth, and came across a herd of cattle on the road ahead of him.

[15] The Applicant said that he braked hard, to avoid hitting the cattle, and his supervisor heard the incident over the Bluetooth in the cab and asked if he was alright. He indicated he was fine and called over the “UHF radio” to inform another driver, who was driving the same road in the opposite direction, that there were cattle on the road. The Applicant said once the cattle had moved off the road, he continued driving to the Capricorn Road House.

[16] The Applicant acknowledged that the cab of the Road Train he was driving on 9 May 2020 was equipped with video cameras which recorded footage of him in the cab while driving.

[17] He said that on 10 May 2020, he reported the braking incident to Ms Mallory Tucker, the Pilbara Manager for the Respondent, and completed a hazard report in respect of the incident. He provided the hazard report to Ms Tucker at the end of his shift.

[18] The Applicant said after providing the hazard report, he did not receive any further information about or update in relation to the Braking Incident from the Respondent.

Notification of record of interview

[19] The Applicant stated that at 8.35am on Thursday 21 May 2020, he received a text message from Mr Dodds stating: “Hello Dave, Can you give me a call as soon as you can please, I need to have a talk with you”.

[20] He said that this was one of his rostered days off, and he was not rostered to return to work until Saturday 23 May 2020. Nevertheless, at 8.45am on 21 May, he called Mr Dodds and they had a conversation to the following effect:

Mr Dodds: Can you please come in. I need to have a talk with you.

Me: What do you need to talk to me about?

Mr Dodds: I can’t tell you what it is about. You can bring someone with you.

Me: What is this about?

Mr Dodds: I can’t tell you.

Me: If you cannot tell me what it is about, then I will not come in until I am

rostered back on for work on Saturday.

[21] The Applicant said he did not receive any further communication from Mr Dodds or the Respondent after this phone call.

[22] Also on 21 May 2020, the Applicant was playing golf with one of his colleagues, Mr Nigel Smith, a Fuel Driver. He advised Mr Smith that he had been asked to attend a meeting with Mr Dodds and that he could bring a support person to the meeting. He asked Mr Smith to be his support person, and Mr Smith agreed.

[23] On 22 May 2020 at 7.25pm, the Applicant sent Mr Dodds a text message asking: “Am I working tomorrow”. The Applicant noted his supervisor usually sent a text message the night before a shift to confirm his shift for the following day, but he had not received any text message. Mr Dodds replied: “Come in and we will have a meeting after prestart”.

Record of interview

[24] On 23 May 2020, the Applicant attended the Port Headland depot for the usual prestart meeting which was held in an open plan office at the depot. Ms Sally Ivison, Transport Administrator, was sitting at her desk during the prestart meeting and Mr Dodds conducted it.

[25] The Applicant said after the prestart meeting, he waited with Mr Smith for his other colleagues to leave, following which Mr Dodds invited them to follow to a meeting room. Ms Ivison also attended.

[26] Mr Dodds advised the Applicant that the purpose of the meeting was for a record of interview (‘ROI’) and that Ms Ivison was there as a witness on behalf of the Respondent. Mr Dodds said words to the effect that he was going to play some video footage, and played a short video clip of the Applicant in the cab of the Road Train from 9 May 2020. The Applicant noted that the footage showed him in the cab of the Road Train picking up his mobile phone for approximately 10 seconds while driving the Road Train to change the music that was playing. He said this was the first time any allegation of him touching his phone while driving had been raised with him.

[27] The Applicant said after the footage was played, Mr Dodds asked the following questions and he answered as recorded here:

(a) Q: Do you agree that you have been offered a support person?
A: Yes.

(b) Q: Do you agree you worked on 9 May 2020?
A: Yes.

(c) Q: What size vehicle were you driving on 9 May 2020?
A: Triple road train.

(d) Q: Were you loaded or empty?
A: Half loaded.

(e) Q: Were you displaying dangerous goods signs at the time?
A: No.

(f) Q: I am now playing you footage of the inward facing camera in the truck of you driving. The time stamp of the footage is 09:33:50 on 5 May 2020. Do you agree?
A: Yes.

(g) Q: Is that you in the footage?
A: Yes.

(h) Q: In the beginning of the footage it shows you picking up something off the dash. What did you pick up?
A: My phone.

(i) Q: Was it your mobile phone?
A: Yes.

(j) Q: Do you agree that you hold your phone, look down and up from it with one hand on the steering wheel for approximately 10 seconds?
A: Yes

(k) Q: Do you agree you were distracted from driving for approximately 10 seconds in that footage?
A: No

(l) Q: Do you agree that you were not holding the steering wheel in the correct manner during the time you were looking at your mobile phone?
A: It depends on what you would call the correct manner.

(m) Q: Why did you not wait until you were stationary before touching your mobile phone?
A: I don’t know. I just grabbed it. I play music through it.

(n) Q: Do you have anything else to add?
A: No.

[28] The Applicant said that at the end of the questions being put to him, Mr Smith indicated he wanted to speak with the Applicant outside about his answers. Mr Dodds adjourned the meeting briefly accordingly.

[29] The Applicant said that Mr Smith said words to the effect that he was not looking at his phone for 10 seconds as asked of him in question (j) above, and said the Applicant should amend his answer. Accordingly, they re-entered the meeting room, and the Applicant said he told Mr Dodds he sought to change his answer to question (j) to ‘No I wasn’t’, and Mr Dodds crossed out the initial answer to the question and replaced it. The Applicant said he initialled next to the crossed-out answer on the ROI Document.

[30] The Applicant said that at “some point” during the meeting, he advised Mr Dodds that question 6 contained an error, as the time stamp on the footage was 9 May 2020 and not 5 May 2020 as provided in question 6. Mr Dodds indicated he would amend the document; however the Applicant said this was never amended.

[31] The Applicant and Mr Smith signed and dated the ROI Document; and Mr Dodds made a copy for the Applicant’s records. Mr Dodds then advised the Applicant he was stood down pending further investigation by the Respondent into the matters raised during the ROI.

Show cause meeting

[32] On 29 May 2020 the Applicant received a phone call from Mr Dodds, who advised that the Applicant was required to attend a show cause meeting on 30 May 2020 regarding the matters raised in the ROI. Mr Dodds said the purpose of the show cause meeting was to give the Applicant an opportunity to explain why his employment should not be terminated, and the Applicant was advised he could bring a support person to this meeting.

[33] The Applicant attended the show cause meeting of 30 May 2020, with his support person Mr Smith, and Mr Dodds and a HR representative in attendance on speaker phone.

[34] Mr Dodds advised the Applicant that he was going to read a show cause letter from a digital copy on his phone. The Applicant said he recalled it beginning with: “This is about your termination. All information regarding this meeting is confidential and you are not to repeat this inside or outside of work with anyone else.” The Applicant said he stopped Mr Dodds and asked for a copy of the letter he was reading so he could read through it. His evidence is that he found listening to Mr Dodds read the letter difficult to understand and process. However the Applicant said Mr Dodds replied to the effect that he could not print the letter for him because his computer was “playing up”. Accordingly, Mr Dodds continued reading from his phone.

[35] The Applicant said during the meeting, he told Mr Dodds that he had told a manager about the braking incident, and that is the reason why the footage from 9 May 2020 was reviewed, and not for any other reason. The Applicant said that Mr Dodds replied to the effect that the ‘telematics team’ had reviewed the footage because the Applicant had reported the incident, and the telematics team could not find any evidence of cattle on the road or any evidence of hard braking from the footage, but did find footage of the Applicant using his mobile phone while driving the Road Train.

[36] The Applicant replied with words to the effect that none of that information was disclosed to him during the ROI, and he had not been provided a chance to prepare for or defend himself in the ROI, nor was he told by Mr Dodds what the ROI was about, until the time of the ROI. The Applicant said that Mr Dodds asked why he had used his phone while driving, and he replied to the effect that he touched his phone to play music through Bluetooth in the truck, and did not used the phone while driving to call or text.

[37] The Applicant said the meeting was adjourned for 5 minutes so that Mr Dodds and the HR representative could discuss the matters raised during the meeting. On his return, Mr Dodds informed the Applicant that his employment was being terminated immediately without notice. The Applicant said he again asked for a copy of the show cause letter Mr Dodds had been reading during the meeting, and the HR Representative advised that all the information contained in the letter Mr Dodds was reading was in the Applicant’s termination letter from the Respondent.

[38] Mr Dodds handed this termination letter to the Applicant at the end of the meeting. It provided that the telematics team reviewed the footage from 9 May 2020 on 19 May 2020, “some nine (9) days after the Braking Incident was reported”. The Applicant said the termination letter also contained an error, as the conduct he was terminated for happened on

9 May 2020, not 7 May 2020 as described in the termination letter.

Respondent’s evidence

Mr Andrew Dodds

[39] Mr Andrew Dodds, Senior Operations Supervisor – Resources & Industrial division for the Respondent, filed a witness statement in these proceedings.

[40] As the Senior Operations Supervisor, Mr Dodds is responsible for day to day operations within the Pilbara for its BHP and FMG Fuels and General Freight work.

[41] Mr Dodds stated that the Respondent runs a fleet of heavy vehicles that distribute Petroleum Products between Port Headland and BHP Mine sites throughout the Pilbara.

Events leading up to the Record of Interview (ROI)

[42] Mr Dodds’s evidence is that on 9 May 2020, Mr Stewart reported a hazard and provided management with a note indicating that he had to apply harsh braking due to cows being on the road. Accordingly, Mallory Tucker, Regional Manager, requested the Respondent’s ‘Telematics Team’ to obtain footage of the incident.

[43] On 20 May 2020, Ms Tucker advised Mr Dodds that the Telematics Team did not identify the alleged hazard reported by Mr Stewart, however it did identify him using his mobile phone while operating the Linfox Road Train.

[44] Mr Dodds contacted Mr Stewart by text message 21 May 2020, requesting that he attend the site to discuss an incident in a record of interview. Mr Dodds stated that as he had footage he needed to show Mr Stewart, he believed it would be easier to explain the nature of the meeting in person rather than over the phone or in a text message. Mr Stewart then called him, asking what Mr Dodds wanted to meet with him about, and Mr Dodds stated: ‘I need to talk to you about an incident, you can bring someone with you’, and: ‘I will take you through it once you get here with the information I have’.

[45] Mr Dodds stated that Mr Stewart was not comfortable coming to site on a non-rostered day under the circumstances, and told Mr Dodds he would not come in until his next rostered days. Mr Dodds said he had no further conversations with Mr Stewart on 21 May 2020. Further, Mr Dodds said he advised the planning team not to allocate any work for Mr Stewart’s next rostered shift of 23 May 2020, so that he could complete the record of interview.

[46] Mr Dodds’s evidence confirmed that on 22 May 2020, Mr Stewart sent him a text message asking whether he was working the next day, and Mr Dodds replied: ‘come in and we will have a meeting after prestart’.

Record of Interview (ROI) on 23 May 2020

[47] Mr Dodds conducted the normal pre-start meeting on 23 May 2020, and he noted that Mr Stewart was present. At the conclusion of the pre-start meeting, he asked Mr Stewart to stay back with his support person Mr Nigel Smith, Transport Worker, to complete the ROI, including showing him footage of the incident he was involved in.

[48] Mr Dodds said he was supported by Ms Sally Ivison, Administrator, who was acting as a company witness for the ROI. Mr Dodds said that Mr Stewart was a willing participant in the ROI, and at no point did he advise that he was not comfortable to continue or review the

questions Mr Dodds had for him. Mr Dodds’s evidence is that before he asked Mr Stewart any questions, he advised and asked him the following:

The purpose of today’s interview is to ask you some questions regarding MTData Footage that was captured of you while operating a Linfox vehicle on a public road. The footage I will show you has a time stamp which is UTC – Universal Time Code. The time in WA is UTC + 8 hrs. Do you understand this?

[49] Mr Dodds said he then asked Mr Stewart a series of questions regarding the type of vehicle he was driving, the nature of his load and showed him the footage captured by the MTData Camera fitted to his vehicle. He said that Mr Stewart agreed that the footage he was shown showed him picking up and using his mobile phone while driving.

[50] Mr Dodds said that Mr Stewart was afforded the opportunity to read through the responses he provided, and that he elected to take a short break with his support person to discuss his responses, following which he came back into the room and made some small amendments. Mr Dodds noted that Mr Stewart signed the declaration section of the document, and Mr Dodds provided him with a copy.

[51] At the conclusion of the meeting, Mr Dodds advised Mr Stewart that he was suspended with pay so that the Respondent could consider his responses and complete its investigation into the incident of 9 May 2020. Mr Stewart asked how the footage was captured of him using his mobile phone while driving, and Mr Dodds said he advised it was identified while the Telematics Team was investigating his alleged hazard of cattle on the road.

Events leading up to the Show Cause Meeting

[52] Following that meeting, Mr Dodds said he provided the signed copy of the ROI to Ms Tucker and Ms Katie D’Lima, Human Resources Advisor. He said that Ms Tucker discussed the matter with Mr Gary Pyne, General Manager R&I West, who is Ms Tucker’s manager and Mr Dodds’s two-up manager.

[53] On 29 May 2020, Ms Tucker advised Mr Dodds that Mr Pyne had formed a preliminary view that Mr Stewart’s conduct on 9 May 2020 was serious breach of driver behaviour and he was considering the termination of his employment. Mr Dodds said that Ms Tucker instructed him to make contact with Mr Stewart and request he attend site for a ‘Show Cause’ meeting at which Mr Dodds would be supported by Ms D’Lima via phone. Accordingly, he phone Mr Stewart and requested he attend the site for a ‘Show Cause’ meeting to close out the investigation into the incident on 9 May 2020. Mr Dodds said he advised Mr Stewart that the Respondent was considering the termination of his employment and the purpose of the meeting was for him to respond to the Respondent’s preliminary decision. He said he also advised Mr Stewart that he could have a support person at the meeting.

Meeting and termination of employment – 30 May 2020

[54] Mr Dodds met with Mr Stewart and his support person Mr Smith, on 30 May 2020. Ms D’Lima was in attendance by phone. Mr Dodds said he had been provided with a script for the meeting by Ms D’Lima, which he read from along with some notes he had prepared prior to the meeting.

[55] He said that he advised Mr Stewart that Linfox had formed a preliminary view to terminate his employment following the incident identified on 9 May 2020 and asked him to provide any mitigating reasons as to why Linfox should not proceed with the termination of his employment.

[56] Mr Dodds’s evidence is that Mr Stewart showed no remorse or took any responsibility for his actions, rather he aggressively questioned why the matter was investigated in the first place. Mr Dodds said that he asked Mr Stewart why he used his mobile phone while driving, and Mr Stewart’s only response was words to the effect of, ‘I play music through it’. Mr Dodds said he asked Mr Stewart again if he had any other mitigating circumstances he would like Linfox to consider, however Mr Stewart provided no further information for consideration.

[57] Mr Dodds said he adjourned the meeting and discussed with Ms D’Lima and Mr Pyne (over the phone) the reasons provided by Mr Stewart as to why his employment should not be terminated. Mr Pyne advised that Mr Stewart had not provided any reasons to change his preliminary view and instructed Mr Dodds to proceed with the termination of Mr Stewart’s employment. Mr Dodds noted the adjournment went for approximately 20 minutes.

[58] Mr Dodds said that he returned to the meeting and advised Mr Stewart that Linfox had made a final decision with respect to his ongoing employment. He provided Mr Stewart with a copy of the termination letter and read the letter verbatim to him.

Mr Gary Pyne

[59] Mr Gary Pyne, General Manager –Resources & Industrial West for the Respondent, provided a witness statement in these proceedings.

[60] As the General Manager – Resources & Industrial West, Mr Pyne is responsible for delivering operational outcomes and service excellence in accordance with the Respondent’s contractual arrangements within the Western Australia Resources & Industrial business. He is also responsible for meeting both safety and financial targets set by the Respondent and its customers.

[61] Mr Pyne stated that he was the decision maker regarding the termination of Mr Stewart’s employment.

The safety culture at Linfox Resources and Industrial

[62] Mr Pyne gave evidence that heavy transport is a potentially dangerous industry, particularly truck driving, which involves large, heavily loaded trucks sharing public roads with all other vehicles in metropolitan and rural regions.

[63] He said that the safety culture of the industry has improved substantially over the last several decades, at least while he has been in the industry. He said this has been in response to enhanced safety regulation and high public expectations. He noted there is a general recognition by most of the industry that anything other than a comprehensive and consistent approach to safety is unacceptable.

[64] Mr Pyne said that one of the reasons he took up his role with the Respondent, is because he believes the business to have a superior approach to safety, and the training it invests in its drivers. He said the Respondent’s safety systems and culture are driven through its ‘Vision Zero’ strategy, and it has a specific goal to attain zero fatalities, zero injuries, zero motor vehicle incidents, zero net environmental emission and zero tolerance for unsafe behaviour and practices.

[65] My Pyne said the Respondent reinforces its requirement for employees to adhere to and comply with its Vision ZERO safety strategy when they are inducted into Linfox. All drivers attend ‘Red Book’ training when they commence with Linfox and are provided a copy of the Red Book. He said employees also complete mandatory periodic refresher training in the Linfox Red Book induction.

Mr David Stewart

[66] Mr Pyne’s evidence confirmed that Mr Stewart was engaged as a Fuel Driver (Transport Worker) by the Respondent on 11 February 2014. He said Mr Stewart has held various positions between 11 February 2014 and his dismissal on 30 May 2020, being:

(a) 11 February 2014 to 15 March 2015 (inclusive) – Transport Worker delivering petroleum products (WA)

(b) 16 March 2015 to 2 July 2017 (inclusive) – Transport Worker delivering Gas products (Qld)

(c) 3 July 2017 to 17 June 2019 (inclusive) – Transport Worker delivering Petroleum products (Qld)

(d) 18 June 2019 to 30 May 2020 (inclusive) - Transport Worker delivering petroleum products (WA)

[67] Mr Pyne said that all of these roles involved Mr Stewart transporting products categorised as ‘Dangerous Goods’.

[68] He said that Mr Stewart’s role in Resources and Industrial West required that he work around 56 hours per week on a common hourly rate of $53.7092, which equates to an approximate annual salary of $156,401.19 (assuming all 52 weeks are worked). He said Mr Stewart also received the following allowances in addition to his wages:

(a) Accommodation Allowance on $600.00 per week for working in the Pilbara. This equates to an approximate annual figure of $31,200 (assuming all 52 weeks are worked).

(b) 4 units of a specified meal allowance of $24.54 per week. This equated to an approximate annual figure of $5,104.32 (assuming all 52 weeks are worked).

Written Warning 9 March 2020

[69] Mr Pyne stated that on 4 January 2020, Ms Tucker advised him that one of the wires connecting the MTData Unit (which included the camera unit) connected to Prime Mover 1GJA362 had been cut. Mr Pyne instructed Ms Tucker to undertake an investigation, which identified that Mr Stewart was the driver of Prime Mover 1GJA362 between 4 and 6 January 2020.

[70] Mr Stewart was interviewed on 25 January 2020 regarding damage to the MTData Unit, and during the interview Mr Stewart admitted to cutting the wire and not immediately reporting the defect to management. He was asked why he chose to cut the wires instead of stopping and reporting the defect, and Mr Pyne’s evidence is that Mr Steward replied: ‘Continue on with trip – nothing else could be done with it’.

[71] Mr Pyne said the Respondent had concluded that Mr Stewart failed to follow the Red Book Induction in which he was trained in on 6 March 2019. Mr Stewart was issued a Written Warning which he signed on 9 March 2020.

Incident on 9 May 2020

[72] Regarding Mr Stewart’s hazard report, Ms Tucker advised Mr Pyne that an investigation would take place. Subsequently on 20 May 2020, Ms Tucker advised him that she had received the findings from the Telematics Team, who could not identify any cattle but did identify that Mr Stewart had appeared to be using his mobile phone while driving. Mr Pyne said that he asked Ms Tucker to speak to her team and arrange for an investigation to be completed regarding the incident, as handling a mobile phone while driving constitutes a significant breach of protocol.

[73] My Pyne said that on 23 May 2020, Ms Tucker provided him with the Record of Interview (ROI) document which Mr Stewart participated in, along with the relevant footage of the incident.

Linfox Red Book Induction – Using a mobile phone

[74] Mr Pyne’s evidence is that Mr Stewart’s training records indicated that he completed training in the Linfox Red Book Induction on 12 February 2014, 6 June 2016, 31 January 2018 and most recently on 6 March 2019. Mr Pyne noted that the Linfox Red Book contains the following in relation to the using a mobile phone device:

3. Vehicle operating standards

Linfox sets a high standard for safe driving which includes your vehicles roadworthiness.

You must:

  Not use a mobile phone while driving.

3.8 Mobile phones and radios

Mobile phones and radios, where fitted or issued, are for company business use only and must only be used in accordance with local traffic regulations.”

Induction – Linfox Driver Behaviour Policy Procedure

[75] Mr Pyne said that on 21 April 2020, Mr Stewart was inducted by way of a Toolbox Talk in the new Linfox Driver Behaviour Policy Procedure, which he said was a replacement of the policy that had existed since 2011. Mr Pyne said that Mr Stewart signed the Toolbox Talk Attendance Sheet on 21 April 2020.

[76] Mr Pyne stated that the Linfox Driver Behaviour Policy – Procedure defines a Serious MVI to include, among other things:

Employee Driver conduct or behaviour that warrants termination of employment following suspension and investigation with notice. Fundamental or serious breaches of Employee Driver conduct or behaviour/obligations, that warrants termination without notice.

Examples of a ‘Serious MVI’ include but are not limited to;

  using a handheld mobile phone/device while driving

Incident Conclusion

[77] Mr Pyne said that after reviewing the interview responses, the dashcam footage, the training Linfox had provided and Mr Stewart’s disciplinary history, he had concluded that Mr Stewart acted unprofessionally and highly inappropriately. He said in particular, Mr Stewart:

(a) was driving a Triple Road Train;

(b) willingly picked up and used his mobile phone; and

(c) was distracted by taking his eyes off the road to look at his phone while in control of the Linfox Triple Road Train.

[78] Mr Pyne said that on this basis, he formed the view that Mr Stewart had not provided a reasonable explanation for his behaviour, and there was basis to terminate his employment for serious misconduct.

Period leading up to the termination

[79] Mr Pyne’s evidence confirmed that on 29 May 2020, he notified Ms Tucker that he had formed a preliminary view that Mr Stewart’s employment should be terminated. He said however, he wanted to give Mr Stewart a final opportunity to advise the Respondent why his employment should not be terminated. Mr Pyne said that he requested Ms D’Lima to contact Mr Dodds and arrange for the Show Cause meeting, as outlined in Mr Dodds’s evidence, be convened.

[80] Mr Pyne said that Ms D’Lima contacted him to confirm the meeting was scheduled to take place the following day, 30 May 2020.

Meeting and termination of employment – 30 May 2020

[81] Mr Pyne stated he was aware the meeting was scheduled to take place around 10am on 30 May 2020, to discuss Mr Stewart’s employment. Mr Pyne stated he was not in the Pilbara region on that day and was working remotely from his home office in Perth. He said that he advised Ms D’Lima he was contactable to discuss Mr Stewart’s response to his preliminary view.

[82] He said that Ms D’Lima and Mr Dodds briefed him that Mr Stewart, along with his support person, was informed that Linfox had formed a preliminary view to terminate his employment due to a serious breach of driver behaviour arising from the incident on 9 May 2020. Mr Stewart was given an opportunity to provide his view as to why his employment should not be terminated. Mr Pyne’s evidence is that prior to this meeting, he had formed a view that unless Mr Stewart was able to provide any reasonable explanation for his misconduct, he could not continue in his employment with the Respondent.

[83] He said Ms D’Lima and Mr Dodds called him during a break in the meeting and informed him that Mr Stewart ‘aggressively questioned’ Mr Dodds as to why an investigation was undertaken, and advised he uses his mobile phone to play music and showed no remorse or took any responsibility for his actions. Mr Pyne said that the reasons provided by Mr Stewart were not compelling enough to alter his decision to terminate his employment. He therefore informed Ms D’Lima and Mr Dodds to proceed with the termination of Mr Stewart’s employment.

LEGAL FRAMEWORK

[84] Section 382 of the Act provides that a person is protected from unfair dismissal, if at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[85] The Applicant had been employed by Respondent for over six years, and his employment was covered by the Linfox and Transport Workers Union Road Transport and Distribution Centres Agreement 2018 (Agreement) at the time of his dismissal. I am satisfied that the Applicant was protected from unfair dismissal.

[86] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[87] In Byrne v Australian Airlines Ltd, McHugh and Gummow JJ explained the ambit of the conduct that may fall within the phrase ‘harsh, unjust or unreasonable’:

“… 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.” 1

[88] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[89] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me 2. I set out my consideration of each below.

CONSIDERATION

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)

Applicant’s submissions

[90] When considering whether there is a valid reason for dismissal, the reason must be ‘sound, defensible or well founded.’3 A reason which is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason.4 The Respondent contended that the Applicant was dismissed for misconduct.

[91] In the Applicant’s witness statement, it was submitted that during his shift on 9 May 2020, the Applicant answered a phone call over the Bluetooth in the cab of the truck, from his supervisor, Ms Katherine Young. According to the Applicant, on a daily basis, his supervisors would call or text him while he was driving, regarding work related matters.

[92] The Applicant submitted that while he was driving and speaking to his supervisor over Bluetooth, a herd of cattle appeared on the road ahead of him. It was submitted that his supervisor heard the Applicant brake the Road Train to avoid hitting the cattle. The Applicant submitted that he called over the radio in inform another driver that was driving the road in the opposite direction, that there was cattle on the road. The Applicant submitted that once the cattle moved off the road, he continued driving.

[93] The Applicant submitted that at the meetings on the 23 May 2020 and 29 May 2020, the Respondent showed footage of him using his mobile phone for approximately 10 seconds. The Applicant submitted that at the show cause meeting:

Mr Dodds asked me why I used my phone while driving. I said to Mr Dodds words to the effect that I touched my phone to play my music through the Bluetooth in the truck and that I did not use my phone while driving to call or text.”

Respondent’s submissions

[94] The Respondent submitted that Mr Stewart’s contract of employment, dated 23 January 2014 and which he signed, contained the following statements:

10. “You must diligently and faithfully perform all the duties and responsibilities of the position to which you have been appointed, in accordance with the directions and policies issued and amended by Linfox from time to time”.

You must act in good faith in the best interests of Linfox at all times in the performance of your duties and responsibilities”.

During your employment, you must comply with all applicable occupational health and safety policies and legislation. You must at all times behave in manner which is safe and without risk to the health of any person, including yourself. A failure to do so may result in disciplinary action being taken against you, including the termination of your employment”.

[95] Further, the Agreement covering Mr Stewart’s employment contains the following clauses:

12. COMMITMENT TO LINFOX VISION ZERO

12.1 It is the policy of Linfox to provide, maintain and endeavour to improve high standards of health and safety in all work activities. Linfox will continue its efforts to:

(a) provide safe working conditions for all Employees;

(b) provide and maintain safe motor vehicles, plant and equipment;

(c) provide sufficient and ongoing training;

(d) take all practical steps to avoid accidents;

(e) regard all accidents as preventable;

(f) develop the awareness and attitudes of management and Employees to the need for maintaining sound work practices and to eliminate as far as reasonably possible, all accidents in the future;

(g) constantly review the work process and conditions;

(h) provide immediate access to qualified medical and rehabilitation assistance as may be required in the event of injury;

(i) enforce safety rules without exception or favour; and

(j) require all Employees, visitors, contractors and third parties to follow safe operating practices and procedures that will safeguard themselves, the public and other Employees at all times.

25. SAFETY AND COMPLIANCE

All Employees are required to comply with both Linfox and site safety rules and regulations and are at all times to report safety issues as they arise.

29. DRIVER BEHAVIOUR POLICY

29.1 Linfox requires strict compliance with its Driver Behaviour Policy.”

[96] Mr Stewart was aware of his obligation to not use a mobile phone while driving when he attended training namely during his:

(i) Red Book Training which outlined that:

“3.8 Mobile phones and radios

Mobile phones and radios, where fitted or issued, are for company business use only and must only be used in accordance with local traffic regulations.

3. Vehicle operating standards

Linfox sets a high standard for safe driving which includes your vehicles roadworthiness. You must:

  Not use a mobile phone while driving.”

(ii) The Toolbox Talk which rolled out the Driver Behaviour Policy Procedure which outlined:

2.0 DRIVER BEHAVIOUR EXPECTATIONS

The following describes the behaviours expected and required of persons operating a vehicle engaged by Linfox:

2.5 Drivers are law-abiding road users who are well versed in the relevant state and federal road and heavy vehicles laws and regulations. Drivers are to keep up to date with changes to road law and regulations that impact on their duties.

2.7 2.7 Drivers are to ensure that they adhere to all policy and procedures.

(iii) The Toolbox Talk which rolled out the revised Driver Behaviour Policy - Procedure which outlined:

Serious MVI

Employee Driver conduct or behaviour that warrants termination of employment following suspension and investigation with notice. Fundamental or serious breaches of Employee Driver conduct or behaviour/obligations, that warrants termination without notice. Examples of a ‘Serious MVI’ include but are not limited to;

  using a handheld mobile phone/device while driving,

  smoking in Linfox vehicles”

[97] The Respondent stated that it places great importance on its employees working safely as outlined in the Health and Safety Policy.

[98] It is clear from the evidence that Mr Stewart had used the mobile phone, which he said he used for the purpose of playing music. The video evidence would suggest that the phone was being used for communication as the screen was visible to the internal video camera and showed that a call was underway. The policies regarding the use of a mobile phone are outlined in the Red Book and through two subsequent Toolbox talks the organisation stated that any mobile phone usage whilst driving is a breach of the Employee Driver Conduct and the behaviour obligations that Linfox places upon its employees. Furthermore, there is a potential breach of the state regulations for motorists that may have occurred, although this was not pressed by the Respondent.

[99] Mr Stewart breached his obligations to Linfox in the most fundamental manner, in direct contravention of the requirements stated in his contract of employment.

During your employment, you must comply with all applicable occupational health and safety policies and legislation. You must at all times behave in manner which is safe and without risk to the health of any person, including yourself. A failure to do so may result in disciplinary action being taken against you, including the termination of your employment”.

[100] It does not matter for what purpose the mobile phone was being utilised, that the Applicant admitted to its use and was presented with the video footage meant that the facts were clear. The employer had specifically nominated the use of mobile phones as attracting the penalty of termination of employment as it was in contravention of the Health and Safety obligations it held as an employer and the for driver as a user of the public road system.

[101] I am satisfied that there was a valid reason for the Applicant’s dismissal.

s.387 (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

[102] McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd5 sets out that the purpose of a warning about unsatisfactory performance must be to identify the performance that is of concern and must make it clear that a failure to heed the warning places the Applicant’s employment at risk. Such a warning gives an employee an opportunity to improve in those areas identified as requiring improvement. An integral part of such a warning must be to clearly identify the areas of deficiency, the assistance or training that might be provided, the standards required and a reasonable timeframe within which the employee is required to meet such standards.

[103] In order to constitute a warning for the purposes of s.387(b), it is not sufficient for the employer merely to exhort their employee to improve their performance.6 The warning must “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”7

[104] Further, an employee must be notified of the reason for termination and must also be given an opportunity to respond to that reason before the decision to terminate is made.8 This process does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly.9

[105] The Applicant was required to attend a meeting on 23 May 2020 which was recorded and at that time he was made aware of the matter and indeed signed the Record of Interview. During this meeting the reason for the meeting was explicit and he was able to provide responses. He was then stood down. Noting the evidence particularly at paragraph [53] of this decision, a further meeting was held on 29 May 2020. At this meeting it was made clear to the Applicant that the Respondent was considering terminating his employment, the basis for such, and he was granted an opportunity to provide reasons why his employment should not be terminated. The Applicant provided his responses and reasons, however the Respondent concluded to terminate his employment and accordingly read and provided a termination letter which outlined the reasons for dismissal.

[106] I am satisfied that Mr Stewart was notified of the valid reasons for the dismissal and had the opportunity to respond.

s. 387(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

[107] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. There is no positive obligation on an employer to offer an employee the opportunity to have a support person. This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them. 10

[108] The Respondent did not refuse a support person and I note that Mr Stewart was accompanied by a support person that he had nominated.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[109] This matter relates to the conduct of the Applicant and not performance. It was not required that the Applicant have a prior warning regarding the use of the mobile phone.

(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

[110] No submissions were made on this matter, the Respondent is a large, well-resourced company and this does not weigh in my consideration of this matter.

(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

[111] The Respondent has well qualified Human Resource professional and this factor does not have weight in my decision.

(h) any other matters that the FWC considers relevant

[112] The Commission is obliged to weigh the gravity and proportionality of the Applicant’s conduct as per B v Australia Post. In this matter the use of a mobile phone whilst driving a very large articulated vehicle on a public road weighs strongly towards dismissal. The employer in this case by terminating the employment of the Applicant was not, in my view, harsh, unjust or unreasonable. The Applicant stated that the use of his mobile phone was only for a short period and it was for music and not for a call. By being distracted for even a second or two with a large articulated road tanker, is all it might take to cause a catastrophic accident. With such considerations, the employer made a balanced decision to terminate the Applicant’s employment for wilfully violating an important employment obligation and further potentially a state road regulation.

CONCLUSION

[113] Having considered all of the evidence and submissions in the context of the statutory considerations, I am satisfied that the Applicant’s dismissal was not harsh, unjust or unreasonable. As a result, the dismissal was not unfair within the meaning of the Act.

[114] The application is therefore dismissed.

[115] I Order accordingly.

Title: Lake DP - Description: Seal of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR726404>

 1   Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 465.

 2   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

3 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), [(1995) 62 IR 371 at p. 373].

4 Ibid.

5 [2013] FWC 3034, [32].

6 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

 7  Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

8 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at para. 75, [(2000) 98 IR 137].

9 Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200 (Watson VP, Acton SDP, Williams C, 3 March 2010) at para. 26, [(2010) 194 IR 1]; citing Gibson v Bosmac Pty Ltd [1995] IRCA 222 (5 May 1995), [(1995) 60 IR 1, at p. 7 (Wilcox CJ)].

 10   Explanatory Memorandum to Fair Work Bill 2008 at para. 1542.