[2010] FWAFB 2526 [2010] FWAFB 2526 Download Word Document FAIR WORK AUSTRALIA DECISION Workplace Relations Act 1996 s.120 - Appeal to Full Bench Rand Transport (1986) Pty Ltd v Mr Glenn Gervasoni (C2009/11380) SENIOR DEPUTY PRESIDENT ACTON DEPUTY PRESIDENT SAMS COMMISSIONER WILLIAMS MELBOURNE, 30 MARCH 2010 Appeal against decision [2009] FWA 1269 of Commissioner Blair at Melbourne on 2 December 2009 in matter number U2009/10299. Introduction [1] This is an appeal, for which leave is required, against a decision 1 and order 2 made by Commissioner Blair on 2 December 2009. In the decision the Commissioner found there was no valid reason for the termination of the employment of Mr Glenn Gervasoni by Rand Transport (1986) Pty Ltd (Rand) and ordered that Rand pay Mr Gervasoni the sum of $29,484.04. [2] The appeal was originally made pursuant to s.604 of the Fair Work Act 2009 (Cth) (the FW Act). However, the appellant subsequently sought to amend their Notice of Appeal to bring the appeal within s.120 of the Workplace Relations Act 1996 (Cth) (the WR Act), having regard to the provisions of item 11 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act). Pursuant to item 11 of Schedule 18 of the Transitional Act an appeal under s.120 of the WR Act is now dealt with by Fair Work Australia. Mr Gervasoni conceded we had power to allow the amendment of Rand’s Notice of Appeal but submitted we should not do so. As the amendment does not affect the bases of appeal we will allow the amendment of the Notice of Appeal as sought by Rand and will deal with the appeal on its amended basis. Background [3] Mr Gervasoni worked for Rand as a line-haul driver from 29 October 2007 to 24 June 2009. 3 Around the time of his dismissal he was regularly driving from Melbourne to Tarcutta and then returning to Melbourne several times a week. 4 The return trip is some 920 kilometres. 5 [4] On 19 June 2009 he left Derrimut in Melbourne around 6:45 p.m. and arrived in Tarcutta around 11:30 p.m. 6 The prime mover Mr Gervasoni was driving on 19 June 2009 had a speed inhibitor connected to it limiting the prime mover’s speed to no more than 100 kilometres per hour. Mr Gervasoni knew how to disable the speed inhibitor. 7 The trailer attached to Mr Gervasoni’s prime mover on 19 June 2009 was fitted with a CoolTrax system which Rand was trialling. The primary function of the CoolTrax system is to monitor the condition of a refrigerated trailer. However, it is also capable of monitoring the trailer’s location, which allows reporting of speed and direction. [5] The Global Positioning System (GPS) chip in the CoolTrax system constantly checks location, speed and direction. The CoolTrax system reports the data from the GPS chip at five minute intervals. With respect to speed, both the average and maximum speed over the 5 minutes is reported. 8 Commissioner’s decision [6] In deciding there was no valid reason for the termination of Mr Gervasoni employment by Rand, the Commissioner stated as follows: “ [17] Now dealing with the primary reason for termination, that is the alleged speeding by the Applicant, the Applicant does acknowledge that he was speeding but not to the extent alleged by the Respondent. [18] The Applicant states that he was driving a speed limited truck (approximately 100 kph) and it was acceptable and common practice to roll the trucks off the hills. The Applicant refutes the Respondent’s assertion that the speed limited device was most probably disabled. This is in contrast to the Respondent’s argument that on 19 June 2009 the Applicant had on at least 24 occasions travelled in excess of 110 kph from Derrimut to Tarcutta, an overall average speed of 94.65 kph, with an overall average highway speed of 108 kph from Conbine, on the Hume Hwy to Tarcutta. At one point the Respondent asserts that there was a maximum speed of 129.6 kph at Kyeamba, NSW. [19] The Applicant’s argument has consistently been that the speeds identified in the GPS are not accurate and there are deficiencies in the data that has been printed that the Respondent had relied upon to terminate the Applicant’s services. The data that was provided is attached to the statement of Mr Cartan and is marked DRC1. Attached to that is a documented entitled CoolTrax Mapping. It identifies that on 19 June 2009 at 5.02pm, the vehicle was stationary at 44 Little Boundary Road, Laverton North, Victoria. Further down states that at 5.17pm the vehicle was at 22 Swan Dr, Derrimut; however, there is well over an hour for the next identification, at 7.02pm at 19 Swan Dr, Derrimut and the vehicle is doing a speed of 18.1kph. [20] The Tribunal has been advised that the depot address of the Respondent is 16 Swan Dr, Derrimut not 44 Little Boundary Road, Laverton North where there is a 0 kph speed identified on the documentation. [21] The Respondent was unable to explain why there is a difference of over one hour on 19 June between 5.17pm and 7.02pm when at 5.17pm the vehicle was at 22 Swan Dr, Derrimut and at 7.02pm it was at 19 Swan Dr, Derrimut. [22] Further, the document states that at 10.58pm the vehicle was at 85 Swift St, Holbrook NSW and travelling a speed of 114.6 kph. Swift St, Holbrook is a street in between Steel St and Bath St, Holbrook, two suburban streets away but running parallel to Albury St, which is part of the Hume Hwy. 85 Swift St, Holbrook is a domestic house. Swift St, Holbrook has approximately 14 houses that occupy either side of Swift St and yet the GPS identifies that the Applicant was doing 114.6 kph in a domestic street. [23] Further, at 11.39pm the CoolTrax system has the vehicle at 4 College St, Tarcutta, NSW travelling at a speed of 123.7 kph. College St is off the Hume Hwy. To get to College St from the Hume Hwy, one must do a sharp left hand turn onto College St which then runs off on an angle with Myrtle St and Gresham St, running into College St. It would appear that College St is a street that covers no more than two domestic wide streets. At the end of the College St there is a sharp right hand turn into Gresham St. [24] In viewing the Google map the Tribunal is convinced it is absolutely absurd to assert that on such a street a vehicle weighing approximately 40 tonnes (as described by the Respondent) would be travelling at a speed of 123.7 kph. And then, within a matter of minutes, appear back on the Hume Hwy at Tarcutta doing a speed of 25.7 kph. [25] As well as the Applicant raising the discrepancies in the speed limits asserting that the CoolTrax system was inaccurate, the Applicant also asserts that the bearing as identified under the heading of “Bearing” is also, in a number of areas, inaccurate. For instance, the vehicle, according to the CoolTrax system, is travelling through Tallarook in a west south west or east south east direction [26] The Tribunal, having considered all the material and the evidence provided by the Applicant and the Respondent, is not satisfied, given the discrepancies in the directions that the vehicle was travelling, the speed limits, the beginning of the Applicant’s trip where there is a lost one and three quarter hours that cannot be explained as well as the two obvious errors that relate to Swift St, Holbrook, NSW and College St, Tarcutta, NSW, that the Respondent had reasonable grounds to terminate the services of the Applicant. [27] Rather than relying on information as provided for by Adtrans, which is an authorised Adecco dealer who service Adecco trucks, had the Respondent done a proper analysis themselves they should have come to the conclusion that they could not solely rely upon the information provided by the CoolTrax system. Even Adtrans acknowledge that the fuse panel, in which it is alleged that the Applicant removed the fuse that restricted the vehicle to 100kph had not been tampered with. [28] The Tribunal is therefore of the view that the Applicant should have been given the benefit of the doubt, given that the information provided by the CoolTrax system is not totally reliable. [29] The Tribunal is also satisfied that the Respondent is not able to rely upon a previous incident where it is alleged that the Applicant removed a fuse to disarm the 100 kph limiter, given that in that instance the Applicant stated that a fuse had blown and he was not in a position to replace that fuse given that it was night time and he was not able to see the fuse box correctly until he was able to get under sufficient street lighting, and the Respondent could not establish that the fuse was deliberately disengaged. [30] The Tribunal therefore determines that there was not a valid reason for the termination of the Applicant in the matter. Although the Applicant admitted to speeding, that speeding was on the basis that the Applicant would disengage the gears, not tamper with speed limiter and simply roll down, what some may term as angels’ gear (neutral) on hills that allowed him to do it, consistent with what would appear to be a common practice.” Consideration [7] We think the Commissioner erred in concluding the only speeding engaged in by Mr Gervasoni on 19 June 2009 was when he disengaged the gears of the prime mover he was driving and rolled down hills. [8] At first instance, Rand tendered data which reported Mr Gervasoni’s maximum speed on 57 occasions during his trip from Derrimut to Tarcutta on 19 June 2009. That data indicated that on 54 of those occasions Mr Gervansoni was driving at a speed of more than 100 kilometres per hour, on 24 of the 57 occasions he was driving at a speed of more than 110 kilometres per hour and on five of the 57 occasions he was driving at a speed of more than 120 kilometres per hour. On one of the 57 occasions he was driving at a speed of 129.6 kilometres per hour. 9 [9] The Commissioner is critical of the maximum speed data on the basis it is associated with an unexplained absence of pre-trip data and with address and bearing data that the Commissioner considers improbable. However, there was evidence before the Commissioner that the maximum speed data is accurate to within 0.1 kilometres per hour 95 per cent of the time. Further, the maximum speed data considered by the Commissioner is a report of the maximum speed achieved over a period of time and not, as the Commissioner seems to consider, a report of the speed at a specific location at a specific point in time. 10 For example, the maximum speed of 123.7 kilometres per hour that the Commissioner incidences as occurring at 11:39 pm actually occurred around 11:35 pm. 11 It appears in the report of maximum speeds at 11:39 pm because it was the maximum speed achieved in the five minutes preceding 11:39 pm. [10] Moreover the data on Mr Gervasoni’s maximum speeds during the trip seem to be corroborated by the evidence that the 460 kilometre trip took four hours and 45 minutes and involved travelling through two towns where the maximum speed limit was less than 100, being Holbrook where the speed limit is 60 kilometres per hour and Woomargama where the speed limit is 80 kilometres per hour, 12 and some hills. 13 The length of trip and distance travelled indicate Mr Gervasoni averaged 96.8 kilometres per hour during the trip. Given he had to travel through towns where the speed limit is considerably less than 100 kilometres per hour and also had to go up hills, we think it is unlikely he could have averaged 96.8 kilometres per hour on the trip without considerable speeding over 100 kilometres per hour during it. [11] As a result we do not think it was reasonably open to the Commissioner to conclude the only speeding engaged in by Mr Gervansoni on 19 June 2009 was when he disengaged the gears of the prime mover he was driving and rolled down hills. Since that conclusion formed the basis on which the Commissioner concluded there was no valid reason for the termination of the employment of Mr Gervasoni by Rand, the Commissioner’s decision was attended by appealable error. We therefore grant leave to appeal and will deal with Mr Gervasoni’s application under s.643 of the WR Act ourselves. Section 652(3) of the WR Act [12] Section 652(3) of the WR Act provides that: “(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to: (a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and (b) whether the employee was notified of that reason; and (c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and (d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and (e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and (g) any other matters that the Commission considers relevant.” [13] We turn then to the provisions of s.652(3) in relation to Mr Gervasoni’s s.643 application. Valid Reason [14] In our view, there was a valid reason for Rand to terminate Mr Gervasoni’s employment based on his conduct being his disabling of the speed inhibitor on the prime mover he was driving on 19 June 2009 and his repeated driving on that day at a speed in excess of the 100 kilometres per hour the prime mover was intended to be limited to. The speed at which heavy vehicles are driven is a legitimate concern of those in the road transport industry because of the potential for high speed to endanger the safety of road transport employees and other road users. [15] For the reasons already given, we accept the evidence before the Commission which indicates Mr Gervasoni drove over the speed limit for the prime mover he was driving on numerous occasions on 19 June 2009 and at times excessively so. We do not accept Mr Gervasoni’s denial that he did not disable the speed inhibitor on the prime mover on 19 June 2009. The evidence indicates he knew how to disable the speed inhibitor and the data on his speeding suggests the speed inhibitor must have been disabled. The evidence the speed inhibitor had not been tampered with does not preclude a conclusion that it was disabled at some stage. Notified of reason and opportunity to respond [16] Mr Gervasoni was notified of the valid reason for the termination of his employment on 22 and 24 June 2009 and given an opportunity to respond to it. 14 Unsatisfactory Performance warnings [17] Section 652(3)(d) is not relevant in the circumstances of this matter. Size of employer and human resource management [18] We are not persuaded the matters in ss.652(3)(e) and (f) impacted on the procedures followed in effecting the termination. Other relevant matters [19] We consider the fact that the speeding in this matter involved only one trip, that Mr Gervasoni was not advised the CoolTrax system was in the trailer attached to the prime mover he was driving and that the applicant has medical restrictions affecting his employment weigh in favour of a conclusion that the termination of his employment by Rand was harsh, unjust or unreasonable. We do not accept the suggestion that Rand was motivated by Mr Gervasoni’s medical restrictions to terminate his employment. There is no sufficient basis for us to conclude they were so motivated. Nor do we think the absence of paid notice weighs in favour of a conclusion the termination was harsh, unjust or unreasonable given the nature of the valid reason for the termination. Conclusion [20] In all the circumstances, we conclude the termination of Mr Gervasoni’s employment by Rand was not harsh, unjust or unreasonable. The nature of the valid reason for the termination of Mr Gervasoni’s employment is sufficient to outweigh the factors favouring a conclusion the termination was harsh, unjust or unreasonable. [21] In light of our conclusion that the termination of Mr Gervasoni’s employment by Rand was not harsh, unjust or unreasonable we quash the decision and order of Commissioner Blair of 2 December 2009 and dismiss Mr Gervasoni’s s.643 application. [22] An order giving effect to our decision is published in conjunction with it. 15 SENIOR DEPUTY PRESIDENT Appearances : S. Heathcote, appearing for the appellant G. Dircks , appearing for the respondent Hearing details: 2010. Melbourne: March 16. Final written submissions: 2010 Melbourne: March 24 and 25. Endnotes : 1 Gervasoni v Rand Transport (1986) Pty Ltd , [2009] FWA 1269 . 2 Gervasoni v Rand Transport (1986) Pty Ltd, PR991384 . 3 Exhibit G1 at paragraphs 1-2. 4 Ibid at paragraphs 14-19. 5 Transcript of 12 November 2009 at PN 241. 6 Exhibit G2. 7 Transcript of 12 November 2009 at PN 92. 8 Exhibit R4 at paragraphs 17-28. 9 Exhibit R5 at paragraph 37 and attachment DRC 1. 10 Exhibit R4 at paragraphs 17-28. 11 Exhibit R5 at attachment DRC 1. 12 Transcript of 12 November 2009 at PN 77-786. 13 Exhibit R5 at paragraph 56. 14 Exhibit F1 at paragraphs 23-42 and exhibit R6 at paragraphs 36-47. 15 PR995534 . Printed by authority of the Commonwealth Government Printer <Price code C, PR995533>