TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for a hearing to settle an industrial dispute

Transport Workers' Union of Australia
Tasmanian Branch
(T.3072 of 1991)

and

Tamarack Transport

Termination of employment - harsh, unjust, unreasonable

REASONS FOR DECISION

This was an application for a dispute hearing made under Section 29 of the Act by the Transport Workers' Union of Australia, Tasmanian Branch (the Union) arising out of the termination of the employment of a Mr Neil Salter by Tamarack Transport of Launceston (the Company).

There were two hearing days involved with this matter at both of which Mr B Hansch appeared on behalf of the Union for Mr Salter and Mr M Fruin appeared for the Company.

The prime facts, born out in evidence, were that on 23 April 1991 Mr Salter, an employee of the Company, was driving an unloaded truck and log jinker for the Company when on rounding a bend just outside Railton he lost control. The truck left the road and before coming to rest it hit a number of objects causing about $16 000 worth of damage to the truck. Mr Salter was not injured, but his employment was immediately terminated on the grounds of a recently introduced Company policy that such action would follow any serious accidents involving the Company's trucks caused by the negligence of the driver.

Mr Salter appeared as a witness for the Union and the following points were made both in examination and cross-examination:-

• Mr Salter who was 53 years of age had an excellent driving record for 36 years; for thirty years he had driven heavy trucks and the only conviction in that time had been one in Hobart in 1981 for speeding. He did not drink alcohol. He had worked for about ten employers during his driving career.

• Prior to this occasion Mr Salter had never been dismissed and he had not been cautioned nor had any problems with his employment.

• Put simply, for some time prior to the accident, Mr Salter (and other drivers employed by the Company) had worked 12 1/2 hours a day for 11 days each fortnight without proper breaks for meals.

In detail, Mr Salter was picked up at his home in Launceston each morning at around 5.00 am by a Company car and with other drivers was taken to a depot, either at Fingal or Railton, whence the truck driving duties for the day would commence. He was then returned to his home in the same way at about 8.00 pm each night. These arrangements operated from Monday to Friday each week and for some periods on every second Saturday. Saturday work had been introduced for a while about one month before the accident.

• Each driver was required to wash and grease his truck every week outside the hours mentioned above. Mr Salter drove the same truck during all of his time with the Company.

• The Company had a quota of logs to deliver each week - 2 000 and each driver was required by the Company to deliver six loads each day.

• Mr Salter's private doctor signed a note soon after the accident saying that Mr Salter was "medically fit to drive a log truck" and "on examination he was normal, except for elevated blood pressure which may have been due to the accident."

The doctor also said he believed Mr Salter "had the accident due to tiredness and working excessive hours."

• Mr Salter had not taken excessive sick leave.

• About two weeks prior to the accident Mr Salter had returned from absence occasioned by a workers compensation injury incurred during an unloading accident. During his treatment on account of that accident he was discovered to have higher than normal blood pressure and was put on a course of medication which he was under at the time of the accident.

• The Company was unaware of the medication.

• Mr Salter was not angry or antagonistic to the Company, he was just anxious to resume his work.

• In February this year Mr Salter had completed a Log Truck Accreditation driving course satisfactorily.

• Mr Salter had not been wearing a seat belt at the time of the accident: this had been volunteered by Mr Salter immediately after. (Whilst this omission is not to be condoned in any way, I believe it was not relevant to the cause of the accident or contributory negligence, if any).

• Even though Mr Salter could not remember having done so, it appeared that he had completed an insurance claim form report of the accident. In that report the reason for the accident was that Mr Salter "fell asleep". Despite this Mr Salter was not completely clear that he had fallen asleep at the wheel.

• Mr Salter had been spoken to on two occasions by management, once about a complaint by a third party as to his speeding through a forest plantation and on another occasion about the unloading accident. (Mr Salter felt that he had adequately answered both these "queries" whereas I believe the company through its Transport Manager Mr Reynolds considered it had cautioned Mr Salter in both cases).

• There was some dispute as to the length of time required in loading and unloading logs and also whether or not a driver was required to stay within the cab of his truck during such times: this, I believe, was related to the un-structured or non-existent meal breaks arrangements.

• Mr Salter was satisfied that the truck he drove was in good running order and did not contribute to the cause of the accident.

• Mr Salter believed he was being used as an example to the other Company drivers since there had previously been a number of serious accidents with Company trucks which had brought about the new policy of immediate termination. His was the first major accident since the new policy was introduced.

The Union, in its submissions, relied upon what it claimed were the excessive hours of work and travelling time required of the drivers as being the cause of Mr Salter's accident. It said that there were no proper periods of rest and this also was the Company's fault.

Whilst it was unclear in the evidence the Company, through its Transport Manager, Mr Reynolds, had confirmed with the Union that driver error was the reason for Mr Salter's termination even though this had not been clearly intimated to him.

The Union claimed that Mr Salter had a good driving record, he had not been properly cautioned prior to his termination and the accident could not be attributed to negligence on his part. It sought reinstatement for Mr Salter without loss of earnings or continuous service.

In response the Company advised that it operated eight trucks and employed fifteen people. Its trucks travelled thousands of kilometres on the State's roads each week and it had a good record.

It confirmed, through its witness, Mr Reynolds, that it had indeed adopted a policy that serious accidents caused by driver neglect or fault would result in instant dismissal. This was the reason Mr Salter was dismissed.

It was submitted that falling asleep at the wheel was negligent and therefore the dismissal was warranted. The Company could not accept the responsibility of re-employing Mr Salter.

The Company also pointed out that, whilst Mr Salter had been employed as a casual driver for about four years, in truth that had been intermittent and his permanent full-time employment only commenced about 10 months prior to the accident.

The Company submitted that the Union had not satisfied the criterion that the dismissal had been harsh, unjust and unreasonable, moreover, it considered that Mr Salter's age and medical condition pointed to his future employment being outside the log-hauling industry.

In closing the Union submitted that falling asleep is not necessarily negligence, and in any case, there was not clear evidence that Mr Salter had fallen asleep even though that seemed probable. It also said that the hours of work required of the drivers were excessive this included all the time the drivers were away from home, from 5.00 am - 8.00 pm each working day without proper breaks. The Union also said that, as the Company policy had not been clearly notified to each driver it could not be claimed by the Company that all its drivers knew the policy.

At the end of the first hearing I reserved my decision, but advised the parties that I would be seeking advice as to the significance of falling asleep whilst driving and the maximum number of hours considered safe for driving log trucks each day. I said my ultimate decision would be very much influenced by the results of my investigations which would be advised to the parties beforehand with an opportunity for formal comment being made available. The results of my investigations were conveyed to the parties in the following terms:

"EXCESSIVELY LONG DRIVING TIMES

As to the maximum number of hours considered safe for driving a log truck each day my enquiries have revealed that the only requirement in this State is that of Regulation 15 of the Traffic (Public Vehicles) Regulations 1967 which provides as follows:

"15 - (1) The following conditions are prescribed as conditions in relation to every licence, namely:-

(a) the licensee shall not permit the licensed vehicle to be driven by a person who has been driving in the aggregate more than 11 hours in the immediately preceding period of 24 hours;

(b) the licensee shall not drive the vehicle if he has been driving in the aggregate more than 11 hours in the immediately preceding 24 hours;

(c) the licensee shall observe the provisions of any industrial award relating to wages, hours of labour, and conditions of employment of a person employed in connection with the licensed vehicle."

In this case (as in many others no doubt), on account of the breaks from the actual driving in loading and unloading and waiting, the Regulation was probably not ever transgressed even though Mr Salter (and others) was at work for around 13 hours a day or, if travelling time were included, for 15 hours per day.

I understand that in the industry (especially as a result of recent serious mainland accidents) the whole matter of driving times and close regulation is under widespread discussion and scrutiny. It is expected that stricter and more detailed guidelines or rules for these matters will result from the discussions, but as yet nothing has been decided or implemented.

It is my own opinion that Mr Salter and the Company's other drivers were driving or working overly long hours, however I am aware that such practices are common in the industry, some working even longer hours. In this case, had the accident concerned not happened and no termination occurred Mr Salter would no doubt have been happy to continue under the same conditions as before without complaint.

I do not propose to rely on the factor of long working or driving hours in my decision: this is not to say that they are of no concern or should be disregarded generally in the future.

NEGLIGENCE AND FALLING ASLEEP WHILST DRIVING

For negligence to be found a duty of care must first be established. It seems to me that a driver ipso facto has a duty of care; even more so must a log truck driver have a duty of care.

I accept that a driver has failed prima facie in his or her duty of care if he or she falls asleep at the wheel.

In this case the only remaining questions were whether or not the driver actually fell asleep or was it proved that he fell asleep."

The second hearing was convened to enable the parties to comment on my findings, recall the witnesses and make any consequent final submissions.

The Union submitted that rather than falling asleep, Mr Salter must have lost concentration for a "split second" and as a result lost control of the truck. It further submitted that Mr Salter had been tired and the Company was responsible for this because of the long hours involved; in this instance Mr Salter had worked for almost nine days straight of over twelve hours per day, plus two hours travelling time each day plus maintenance work (this was based upon a total of six full days worked the week prior to the accident plus maintenance work on the Sunday plus the two days worked on the week of the accident including the day itself, Tuesday).

The Union continued to lay great stress on the Company's failure to abide by the Award's meal break provisions and submitted that the lack of a proper meal break of at least half an hour had been another contributory factor in the accident.

A second medical report was produced also saying that Mr Salter had been examined on 10 July 1991 and he was fit to drive.

The Union also confirmed that on medical advice Mr Salter's blood pressure medication would not have caused a blackout at the time of the accident.

The Company submitted that whether Mr Salter fell asleep or lost concentration made no difference, he was negligent in either case. It also said that the drivers were "their own bosses" and by agreement had chosen to take breaks outside the Award requirements.

Mr Reynolds, the Company's Transport Manager, was recalled as a witness and, amongst other points, he said that the incidence of Saturday work in the Company's operations was minimal - around 10% he said. He also agreed that it was hard to imagine a driver falling asleep so soon after leaving the unloading yard.

Decision

Whilst it is not absolutely clear what happened to cause the accident involved in this matter the closest and most reasonable explanation is that Mr Salter, in a very short period of inattention to his driving, lost control of the log truck. Objectively speaking he should not have allowed his attention to stray, even for the shortest period of time, and that being so, he must be reckoned as negligent and therefore responsible for the accident.

Were he to have fallen asleep, which seems highly unlikely to me, he would still have been negligent.

There was no evidence that any extraneous factor or event could have directly caused the accident.

Even though comparatively little damage was caused by the accident, in comparison to the havoc and loss of life that may have occurred, it was reasonable for the Company to have regarded that damage to the truck per se as sufficient for termination of employment. In addition to that, however, and even more seriously, the Company would not accept the responsibility of continuing Mr Salter's employment on the grounds that a similar accident might reasonably be expected again with disastrous results: I cannot disagree with this latter position.

For these reasons, therefore I consider the Company's decision to terminate Mr Salter's employment was not harsh, unjust or unreasonable.

The Company's role in all this, however, was not blameless. In my view the Company's failure to require compliance with the Award provisions as to meal breaks was reprehensible and that, together with the excessively long hours of work expected of the drivers each and every day were contributory factors in the accident. It is not acceptable for the Company to say that the employees agreed to the arrangements outside the Award; such an agreement was illegal.

I leave it to the parties to remedy the situation.

In fairness to the Company and its employees I must say it seems to me that the unsatisfactory practices I have referred to are common in the transport industry. In that context the Company could well be one of the better ones so far as general standards and control of hours worked is concerned. It is to be hoped that the current moves to improve standards throughout the transport industry generally are successful.

P A Imlach
COMMISSIONER

Appearances:
B Hansch for the Transport Workers' Union of Australia, Tasmanian Branch.
M Fruin for Tamarack Transport.

Dates and place of hearing:
1991.
George Town: May 30.
Launceston: July 16