T12452
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Ian Deacon and Holloway Quarries & Transport Pty Ltd
Industrial dispute - termination - procedural fairness denied - termination unfair - reinstatement impracticable - compensation ordered REASONS FOR DECISION [1] On 7 December 2005, Ian Deacon (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 Holloway Quarries & Transport Pty Ltd arising out of the termination of his employment. [2] This matter was listed for a hearing (conciliation conference) on 21 December 2005 and 10 January 2006, and for a hearing on 17 January 2006. Mr I Deacon was self-represented. Mr S Wright, solicitor, of Crisp Hudson & Mann, appeared, with Mr L Holloway, for the respondent. [3] The employer's business is that of cartage and stone crushing. The principal of the business, Mr Llewellyn Holloway, has owned the company for approximately 40 years. [4] Mr Deacon has been employed by the business as a truck driver at least since July 2004, and possibly from December 2003, although the precise starting date was in dispute. It would seem that Mr Deacon had been employed by Mr Holloway on previous occasions in various capacities. [5] Mr Deacon was employed on a casual basis. Initially Mr Deacon was engaged when work was available. However according to his uncontested evidence, in the latter part of his employment he rarely worked less than 40 hours per week and usually more. He presented for work each working day without being advised the previous day as to whether or not he was required. [6] The relevant award is the Transport Workers General Award. [7] Mr Deacon's employment contract was terminated on 24 November 2005 following a vehicle accident the previous day. He claims that the termination was unfair and seeks reinstatement. [8] Sworn evidence was taken from the following witnesses: · Ian Deacon, the applicant. · Llewellyn George Holloway, the owner of the business. · Lindsay William Tyne, employed for four years as a crusher operator and maintenance fitter. [9] On the morning of 23 November 2005 Mr Deacon was operating a semi tipper truck. Whilst in the process of unloading with the trailer in the elevated tipping position, both the trailer and truck overturned. [10] Mr Deacon was not obviously injured. There was however extensive damage to the truck and trailer (approximately $80,000). [11] Mr Deacon telephoned the depot and spoke to a Mr Duniam. Mr Deacon referred to Mr Duniam as transport manager, although it transpired that Mr Duniam was a truck driver currently engaged on light duties. There can be no doubt however that Mr Deacon reported to Mr Duniam each day, who in turn gave him his work instructions for the day. [12] Mr Duniam arranged for cranes to restore the position and Mr Deacon completed his day's work in another truck. [13] Mr Paul Cook was the only other person present at the time of the accident. Apparently Mr Cook was not available to give evidence. [14] The following is Mr Deacon's account of what happened the next day, 24 November:1
[15] Mr Holloway was made aware of the incident some time on 23 November. As Mr Duniam had arranged for cranage he took no further action until the following day. His evidence was as follows:2
[16] Later, in response to questioning by the Commission, Mr Holloway said:3
[17] The evidence of Mr Tyne, who was present at the time of the dismissal, was as follows:4
[18] Mr Tyne, who had attended the scene some time after the accident, expressed the view that the trailer had been placed in the tip position on uneven ground. [19] Mr Deacon stated that the allegation of uneven ground was not raised at the time of termination. Nor was his previous conduct in relation to vehicle damage. [20] Mr Deacon disagreed that the ground was uneven. In his view the accident was the result of modifications to the trailer, which in turn caused the load (concrete rubble) to become blocked whilst the trailer was in the elevated position. Mr Tyne agreed that if this did occur, it would cause the trailer to fall over. [21] Mr Deacon acknowledged that he had been previously warned by Mr Holloway in relation to vehicle damage, to the extent that his employment was in jeopardy if there was no improvement. [22] Mr Holloway said that whilst Mr Deacon's conduct had been "reasonable" he would not consider reinstatement in that he lacked confidence in his driving ability, particularly in relation to vehicle damage. Findings [23] The vehicle incident was serious and the damage extensive. Given Mr Deacon's previous work history and in particular the warning in relation to vehicle damage, the incident may well have amounted to a valid reason for termination, provided of course that driver negligence was involved. [24] In this instance Mr Holloway accepted without question the word of Mr Cook that the cause of the accident was uneven ground. Mr Holloway terminated Mr Deacon's employment without the benefit of any form of investigation, independent or otherwise. [25] The Commission understands that an investigation was undertaken by Workplace Standards Tasmania. Indeed the availability of their report was one of the reasons for the delay in hearing, although the report, assuming it exists, was not tendered in the hearing. [26] It may well be that uneven ground was the cause of the accident. However from the Commission's point of view Mr Deacon's explanation was equally plausible. Only a proper investigation could draw a proper objective conclusion as to the cause of the accident, and whether or not driver negligence was involved. [27] From the evidence I am quite satisfied the Mr Holloway had a predetermined position that Mr Deacon was to be terminated. I am further satisfied that the allegation in relation to uneven ground was not put to Mr Deacon, nor was he given any opportunity to provide an alternative explanation as to the cause of the accident. [28] Further, I find that Mr Deacon's action in reporting the accident to Mr Duniam was reasonable, given that it was Mr Duniam who provided Mr Deacon with day-to-day instructions, and no alternative process for reporting accidents was in place. [29] I have reached the inevitable conclusion that Mr Deacon was denied procedural fairness, and given the uncertainty as to the cause of accident; I find that he was unfairly terminated. [30] The conflict in the evidence as to whether or not notice was given is not a deciding factor. At best Mr Deacon was given four days' notice, which is not one week's notice, as submitted by Mr Wright. [31] Whilst the primary remedy is reinstatement, I have, with some reluctance, reached the conclusion that this would be impracticable. The relationship between Mr Deacon and Mr Holloway was somewhat stormy, and Mr Holloway now, rightly or wrongly, clearly lacks confidence in Mr Deacon's driving abilities. It would seem highly improbable that a satisfactory working relationship could be re-established. [32] In assessing compensation I have taken into account Mr Deacon's length of service and the likely duration of continuing employment, but for the termination. The previous warning/s is a relevant consideration in this assessment. I have also had regard for the fact that Mr Deacon was engaged on a casual basis, albeit that the characteristics of the employment arrangement had many of the hallmarks of permanent employment. [33] In all the circumstances I consider that the appropriate level of compensation to be six weeks' pay, calculated on the basis of 40 hours per week at $18 per hour. From this amount any payments received by way of worker's compensation are to be deducted. Order Pursuant to section 31 of the Industrial Relations Act 1984 I hereby order that Holloway Quarries & Transport Pty Ltd pay Ian Deacon an amount of four thousand three hundred and twenty dollars ($4320), less any payments received by Mr Deacon in the nature of weekly workers' compensation during the period 30 November 2005 and 17 January 2006. Such payment is to made not later than 5.00pm on Friday 10 March 2006.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript PN 41 to 50
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