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T12029

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Christopher Damien Agostini
(T12029 of 2005)

and

Colonial Car Rentals Pty Ltd
Trading as Thrifty Car Rental

 

COMMISSIONER T J ABEY

HOBART, 23 June 2005

Industrial dispute - alleged unfair termination of employment - valid reason for summary termination not found - termination harsh and unfair - denial of procedural fairness - reinstatement impracticable - compensation ordered

REASONS FOR DECISION

[1] On 15 April 2005, Christopher Damien Agostini (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Colonial Car Rentals Pty Ltd t-a Thrifty Car Rental, arising out of the alleged unfair termination of his employment.

[2] This matter was listed for a conciliation conference on 10 May 2005 and further listed for hearing on 7 June 2005. Mr C D Agostini, the applicant, was self-represented. Mr R Crawford, with Ms L McCann, appeared for the respondent.

[3] Mr Agostini was employed as a car detailer on 26 July 2004. This was a full-time position which, according to his contract of employment,1 became "permanent" after a three-month probationary period.

[4] On 6 April 2005, Mr Agostini was handed a letter terminating his employment effective from close of business on that day. The letter read:2

"As a result of repeated incidents of vehicular misconduct, it has become necessary that I, on behalf of the company directors, hereby give you notice of the termination of your employment, effective close of business today.

I refer to our recent discussions with you regarding your speeding infringement in a company vehicle, in addition to incidents formally addressed by my correspondence to you in January this year.

The company directors have had the opportunity to consider their response to your actions, and collectively agree that this wilful misbehaviour entirely contravenes your contract of employment.

The consequences of your persistent misconduct in company vehicles and misuse of our trust has had an extremely negative impact upon customer service and teamwork, and this can no longer be tolerated.

Your entitlements, including payment in lieu for one week's work, will be processed in the normal manner."

[5] Mr Agostini asserts that he was unfairly terminated, both in terms of absence of valid reason and procedural fairness. This is denied by the company.

[6] A conciliation conference on 10 May 2005 failed to resolve the dispute and at the request of the applicant, the matter was listed for hearing.

[7] Neither party was represented. Both Mr Agostini and Mr Richard Crawford, the Company Director, gave sworn statements and were subject to cross-examination.

Events Prior to Termination

[8] In late December 2004 Mr Agostini was involved in an incident whereby he used a company hire vehicle for his own private purposes, returned the vehicle without refuelling and subsequently claimed a $30 "ferry run" fee. This was in breach of company policy and caused the employer to write to Mr Agostini in the following terms:3

"As a result of discussion between myself and Shawn Fyfe, it appears necessary that I formally raise with you the issue of your recent misuse of a company vehicle.

In his leadership capacity, it is Shawn's role to monitor the professional conduct of staff at Launceston, and report his observations to myself and the company directors.

The incident I refer to is your personal use of one of our trucks over the weekend, in particular your return of this vehicle without refuelling. I understand that your use of the truck was redeemed in lieu of over time worked, however it is the point of returning the vehicle empty and your subsequent request for payment for the vehicle movement as a ferry trip, which causes Shawn and I concern. This is not acceptable on the basis that it compromises our policy on staff use of vehicles and is perceived as a manipulation of our leniency.

Chris, I do not welcome having to address this issue with you as I have seen potential in you to be an excellent worker. However, this incident raised strong concerns that I was unable to overlook. Please take this issue as seriously as I am Chris, and undertake to abide by our procedures relating to staff use of company vehicles in the future."

[9] Mr Agostini accepted that he had "stuffed up" and subsequently made full restitution.

[10] On 17 February 2005, Mr Agostini was engaged on a ferry run from Launceston to Hobart. He said it was his day off and he was engaged as a "contractor".

[11] During the course of this run he incurred a speeding ticket. Mr Agostini said he overtook an unmarked police vehicle in an overtaking lane, allegedly at 130km/h in a 110km/h zone. Mr Agostini said he had foreshadowed his intention to contest the allegation and would be entering a not guilty plea. At the time of hearing no date had been set to hear the matter in the Magistrates Court.

[12] Mr Agostini said that same day he phoned Mr Rob McDonald, the fleet manager based in Hobart, and informed him of the speeding ticket. Mr Agostini's recollection of Mr McDonald's response was:4

"Right. And what did he say?---He turned around and said, "Well," he said, "Basically, it is a no no. It is not supposed to happen, but you are allowed one mistake a year." And at this point, it was the first mistake I had made for 2005, and he said, "Look, we won't see any more from it from there," because I had previously nearly got a speeding ticket in August last year when I was coming up in a four-wheel drive. Like, the camera went off, but it didn't, like, get me."

[13] Two days later Mr Agostini informed his Launceston manager. His recollection of this conversation was:5

"What did he say?---He turned around and said, "Well, why didn't you tell me straightaway?" and I said, "Well, because I was told by the management to leave it alone and just worry about it when it comes through," which is what I had gathered that came from the conversation with Rob McDonald.

Right?---Because he said, "Look, you know, you are allowed one mistake a year." I didn't think anything was going to come of it. I had known people had been speeding before and nothing had happened, so I just let it go."

[14] Mr Agostini said that rumours began to circulate in the workplace, which in Mr Agostini's view, greatly exaggerated the seriousness of the alleged offence. As a consequence Mr Agostini telephoned the company human resources manager, Ms Lisa McCann. Mr Agostini recalled this conversation as follows:6

Okay. Now, let us - take me through that conversation, as best you recall it?---I rang up Lisa McCann and I said to her - I said, "I am ringing you up because I am disappointed" - well, maybe not; I might not have used the word disappointed, I might have used upset - "about what is going on with these rumours about the speeding ticket." I informed her that I have a copy of the speeding ticket, "I am quite willing to fax you down a copy of the speeding ticket, because I think it is unfair that I am being labelled for something that I have done that I haven't been done. And I am getting rather upset about it because I am putting up with rumours." This was not the first conversation I had had with Lisa McCann over the time, over rumours that were going around about me, and I turned around and

I just stated to her that, "Look, you know, I will fax the ticket down to you if you want to have a look at it, and I am quite happy to sign a piece of paper that states you can check the Transport Division to make sure I have got points and I am not cheating you out." And I was told at that point that that was okay, not to worry about it, let it go. The people to be - not worried about it, because at this point, I had also heard that Gary Crawford, which is another owner of the company, was upset. And I didn't want to upset the hierarchy, you know, naturally, and this is half the reason why I rang Lisa about it. And then, yes, I was basically told that, "That is okay, we will get it sorted out. Just don't listen to the rumours and get on with your job." So such is that, that is what I did."

[15] It would seem that this conversation took place on or about 24 March 2005.

[16] Mr Agostini said that nothing further happened until the date of termination, i.e. 6 April 2005.

Termination of Employment

[17] Mr Agostini said he had no prior warning that he was to be terminated.

[18] Mr Agostini's recollection of events that day was as follows:7

"Was it addressed to your home address or did you get it at work?---No, it was - I was told by the manager at that point that I would be let go that morning, and that the letter would come through by lunch time, that it was going to be faxed up to me.

You were told by the Launceston manager?---Yes. Yes, the area manager, which was Shaun Fyfe at the time. He turned around and he goes, "Sorry. I am sorry to do this, but I have to let you go because of misuse of company vehicles." And I said, "Well, look, you know," I was naturally distraught and a bit upset about it, so I went for a bit of a walk. Then he came back and said to me, he said "Look, you know, don't, you know, take this out on staff and company and stuff like that, or get upset about it, you know. It is just the way things go." And I said to him, I said, "Well, you know, don't worry. I am not going to hold anything against you or the company or anything for it, but I think it is unfair," straight up. And he just turned around and he said, "Look, you know, you can stay the rest of the day until your shift is finished or you can just go home." And I said, "Well, I will wait until the letter comes through and then I will make my decision." So the letter came through at about 1 o'clock that afternoon. I read it, made my decision on it, and at approximately - between about 2 and 3 o'clock, I left and went home."

[19] In his sworn statement Mr Crawford said that on this occasion, "following nine months of a pattern of behaviour", the company had chosen not to exercise discretion and give Mr Agostini the benefit of the doubt. He said that Mr Agostini had not been unfairly treated and due process was followed.

[20] Questioned on the matter of due process, Mr Crawford said:8

"THE COMMISSIONER: On the question of due process, was Mr Agostini given any opportunity to put any explanation or his side of the story?

MR CRAWFORD: He was. It was attempted through his manager, but his manager refused to discuss it with him, according to Chris, and therefore, I directly had no contact with Chris beforehand. However, it was his manager's role to do that, it was his manager's role to fire him and to discuss it with him, and he refused to do either."

[21] Mr Crawford also said:9

"The background unfortunately over nine months did trouble me, and forced me to make the decision that I did make - and I take full responsibility for the decision. But over a nine-month period, Chris had been given a written warning for misuse of company vehicles. It is a fact that the vehicle - and the attachment is provided to you, Commissioner - the vehicle was used for private use and then $30 cash was taken for a ferry run that was done for the vehicle, and the vehicle at all times was used for his own personal use. Now, that forced us obviously to write a warning, and that didn't leave a very good taste in our mouths. In addition to that, I had four different staff come to me in different ways making accusations, not in relation to this speeding offence, but in relation to other matters, and I chose not to act. Lisa on two occasions made contact with Chris, as he mentioned, and asked him about certain incidents, one involving the kicking of the vehicle with the damage to a vehicle, but again we took Chris' word for it. But after I had received four different complaints from staff and Lisa had received two, an unsavoury pattern of behaviour over a period of just nine months had really emerged. So when I found out that a speeding infringement had taken place, I chose to invoke the clause in Chris' employment contract which indicates that an offence may lead to dismissal."

[22] It would seem that aside from the December 2004 "ferry run" issue, two of these complaints were taken up with Mr Agostini but not pursued. Presumably his explanation was accepted. Mr Agostini was not made aware of the other two complaints referred to by Mr Crawford.

Contract of Employment

[23] The Contract of Employment10 contains the following clauses relevant to this matter:

"4. Termination of Employment

Employment with this company may be terminated either by the Company or the employee upon giving one week's notice in writing. Notwithstanding any period of notice that may otherwise apply the Company may terminate the contract of employment without notice forthwith upon the happening of any of the following:

Should there be persistent breach of any of the terms of the employment contract or should the employee engage in an act of serious misconduct.

Should the employee's drivers licence be suspended.

Should the employee be convicted of any serious criminal offence which by its nature diminishes the Company's confidence in the employee's capacity to perform the inherent requirements of the position.

Should the employee drive whilst under the influence of alcohol or any illegal substance whilst in charge of a Company vehicle.

...

6. Preservation of Assets

This contract may be terminated if there is a failure by the employee to protect Company property which includes motor vehicles, equipment, money, and services. In addition, any taking, giving to another, using for personal benefit, property belonging to the Company, or aiding others in so doing by the employee may result in the termination of this contract."

Findings

[24] I am prepared to accept that speeding tickets incurred by employees of a hire car firm might be viewed more seriously by the employer than would be the case in the wider employment market.

[25] Clause 4 of the Contract of Employment makes it clear that a suspension of licence or driving under the influence of alcohol or illegal substances may result in the termination of employment.

[26] In Mr Agostini's case neither of these circumstances apply. Further, he has not yet been convicted and has foreshadowed that he will be contesting the charge.

[27] Clause 6 Preservation of Assets seems to be targeted more at the security of company property. There is no suggestion that Mr Agostini was driving in a reckless manner likely to cause physical damage to the vehicle. It would seem something of a long bow to rely on this clause in relation to what, on its face, appears to be an unremarkable speeding ticket.

[28] Mr Agostini reported the incident to the fleet manager on the day it was incurred. Two days later he told his Launceston manager and some weeks later he informed the human resources manager. The uncontested evidence is that on each occasion the managers responded along the lines that whilst a speeding ticket was an issue and certainly not condoned by the company, it would not be taken any further.

[29] Mr Agostini said, again uncontested, that he was aware of other staff who had incurred speeding fines and not been disciplined.

[30] I have taken into account the "ferry run" incident, which gave rise to the formal correspondence of 5 January 2005. I note that all parties appear to accept this correspondence as a "warning", even though the word is not mentioned.

[31] Even allowing for this warning, I am of the view that a single speeding ticket, which is to be contested, does not amount to a valid reason for summary termination.

[32] There seems little doubt that in the mind of Mr Crawford, there were other issues on foot. He referred to a "pattern of behaviour over nine months" and what he described as an aggressive and intimidatory nature on the part of Mr Agostini.

[33] Whether this view was justified or not is not the point. On the available evidence, these issues were never raised with Mr Agostini. The complaints referred to by Mr Crawford were either not pursued or not raised at all. Indeed in the circumstances Mr Agostini might be entitled to take some comfort from the following comment in the 5 January 2005 letter:

"Chris I do not welcome having to address this issue with you as I have seen potential in you to be an excellent worker."

[34] Even if Mr Crawford's concerns were validly held, it would be quite unfair to rely on them to justify a summary termination, if they had not previously been brought to Mr Agostini's attention and been given the opportunity for explanation and/or to redress his behaviour.

[35] I turn now to the matter of procedural fairness, which in summary, amounts to the right to be heard.

[36] Mr Agostini did not have any prior warning of his possible or impending termination.

[37] The two-week delay between the time the speeding ticket was brought to Mr Crawford's attention and the date of termination would ordinarily be of concern when issues of alleged misconduct are concerned. I do however accept Mr Crawford's explanation as to the intervention of Easter.

[38] It is clear that Mr Agostini was not at any stage given an opportunity to offer any explanation or defence. Mr Crawford said that this was the responsibility of the Launceston manager, who refused to do it.

[39] That circumstance is a management issue; it can hardly be sheeted home to Mr Agostini.

[40] I find there has been denial of procedural fairness.

Remedy

[41] From the demeanour of the witnesses during the hearing I conclude that there has been a fundamental breakdown in employment relationship, which is unlikely to be rectified. I therefore find that reinstatement is impracticable.

[42] I am of the view that Mr Agostini was terminated in a harsh and unfair manner.

[43] In assessing compensation I am required to take into account Mr Agostini's length of service, which was relatively short.

[44] I am also conscious there may well have been other employment issues which had not been properly addressed by management. I suspect that, but for the termination, Mr Agostini's future with the company may not have been long term, had a more appropriate counselling/disciplinary process been followed.

[45] In all the circumstances I assess the appropriate level of compensation as the equivalent of four weeks' wages.

ORDER

Pursuant to s.31 of the Industrial Relations Act 1984. I hereby order that Colonial Car Rentals Pty Ltd trading as Thrifty Car Rental, 11-17 Argyle Street, Hobart, Tasmania 7000, pay to Christopher Damien Agostini an amount equivalent to four weeks' wages, such payment to be made not later than 5.00pm Friday 15 July 2005.

 

Tim Abey
COMMISSIONER

Appearances:
Mr C D Agostini, self-represented
Mr R Crawford, with Ms L McCann, for Colonial Car Rentals Pty Ltd trading as Thrifty Car Rental

Date and Place of Hearing:
2005
May 10
June 7
Launceston

1 Exhibit R2
2 Exhibit A1
3 Exhibit R1
4 Transcript PN 55
5 Supra PN 59/60
6 Supra PN 63
7 Supra PN 68/69
8 Supra PN 187/188
9 Supra PN 133
10 Exhibit R2