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T12452

 

TASMANIAN INDUSTRIAL COMMISSION

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

Ian Deacon
(T12452 of 2005)

and

Holloway Quarries & Transport Pty Ltd

 

COMMISSIONER T J ABEY

HOBART, 16 February 2006

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

"I arrived at work at 6.50 am, parked in the yard from where I would be going to work in a truck. Graeme Duniam came up to the yard and we discussed previously the day's events [sic] - the previous day's events, rather - the cause of the accident etcetera briefly. He then told me what truck I was to drive, my job destination, the material I was to cart and the time I was to get it loaded. I then checked the truck for fuel, water and oil etcetera. I was walking down the yard to get oil for the motor. Lou Holloway and Lindsay Tyne -

maintenance man -

were coming in my direction. From several feet away I said, "Good morning LG -

which is the common thing to Mr Holloway from me -

Morning, Lindsay." No reply. Holloway stepped in my path and started roaring as follows. Holloway: "You never reported that you tipped that truck over to me yesterday." Me: "I was not aware I had to report it to you personally. I rang your office and told your transport manager so he could get cranes etcetera organised." Holloway: "What manager? I am the manager here, everything is reported to me." Me: "Okay. I reported it to Graeme Duniam, who answered the phone in your office, the man from whom I receive my work related instructions." Holloway: "He is nothing, I run this place, you're fired." Me: "Okay. Effective of when?" Holloway: "Now; you're finished now." Me: "Okay". I then turned to go home. Holloway: "No, wait a minute. You can't go now. You have to drive that truck today. I'll finish you Friday night." Me: "Okay, we'll see about that." Holloway: "There's nothing to see about. You never washed the clarifier yard last night, you're finished Friday." Me: "Listen, mate. I get all my instructions from there, Australia Paper -

meaning Australia Paper -

I've worked there for long enough to know what to do and what I can and can't do. For your information, I finished at the yard at 4 o'clock yesterday. My timesheet will verify that. I then went into the clarifier yard and pushed up the day's clarifier carted from Wesley Vale because the clarifier semi had to leave that and cart in place of my semi. The clarifier yard will be hosed down when the Wesley Vale clarifier has been carted, which will be before Monday morning - - - 

MR WRIGHT: Who is saying this, sorry?---I am.

Right?---

- - when the clarifier starts producing here. Holloway: "Well, I've finished you up." Me: "Okay." "

[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

"Thank you. So you were with Mr Tyne when you encountered Mr Deacon the next day on the 24th of November; that is correct?---Yes.

You had a conversation with Mr Deacon did you not?---I did.

Was that a normal conversation or was there something unusual about it?---Well, I suppose it was unusual in the way that I was about to give him a week's notice.

Okay. Was it a heated discussion though?---I beg your pardon?

Was it a heated discussion?---No, I wouldn't say so.

Okay. Now, what did you say? What did you say to Mr Deacon?---I just asked him what happened and why he rolled her over and why he didn't come and tell me. He said, "I didn't have to tell you," because he said, "I'd already told Graeme Duniam and Wayne Lawson."

All right?---I said, "Well, that's not me" I said, seeing as I own the business, but I said, "Anyway Ian it never should have happened - - - 

Why do you say that?---I beg your pardon?

Why do you say that?---Because I thought it was a bit of carelessness on his part.

Okay, and how did you come to that conclusion?---Same way as you come to any conclusions, I had warned Ian on several occasions about being rough on the gear and that sort of thing and told him I'd finish him up if he didn't pull his socks up as the old saying and that sort of thing, and - - - "

"Now, I will just recount. You said that you had this discussion the following morning in the presence of Mr Tyne whereby you had said to Mr Deacon, "I'd warned you before about the vehicle." I asked you about how you formed the opinion about the careless, what you considered careless. On what basis or what information were you given to form that view?---I wasn't given any information it was my own personal sights of the vehicle and different things that were done previously.

Okay. What were you told about the accident?---I knew nothing about the accident, only what I was told.

Yes, and what were you told?---I was told that Mr Deacon had rolled the truck and trailer over up at the Mooreville Road Dump and the first thing I said, "Was anybody hurt?" And they said no, the truck is badly damaged and so is the trailer.

What did they tell you about the cause of the accident?---I was told by Paul Cook that he thought he shouldn't have been tipping where he was because you always tip on a very square surface instead of on a slope.

So what were you told about where Mr Deacon was tipping this day?---That was what I was told by Paul Cook.

You were told what, sorry, can you say that again?---That it was on an angle and never should have been tipped on an angle like it was.

Okay, thank you. So what did you say to Mr Deacon when you encountered him about his employment?---Well, I just told him that I would finish him up and Mr Deacon said, "When, right now?" I said, "Well, you can please yourself." And I thought for a second or two and I said, "I think you had better make it next Tuesday, the end of the pay." "

[16] Later, in response to questioning by the Commission, Mr Holloway said:3

"THE COMMISSIONER: Mr Holloway, you indicated that you accepted - please sit down Mr Deacon - that you accepted what, I think, Mr Paul Cook told you about the accident; is that right?---Paul Cook did tell me, yes.

Did you seek to verify the accuracy of that or did just accept what he said?---No, I more or less accepted what he said, he's been with me a long, long time and he's a pretty competent sort of a chap."

[17] The evidence of Mr Tyne, who was present at the time of the dismissal, was as follows:4

"Can you tell the Commission in your own words the general nature - not exactly, but the general nature of that conversation, what occurred?---As far as I can recall Lou asked Deak whether he'd cleaned up or something and there was a bit of a tiff about that and Lou asked him whether he'd reported it to him and then why didn't he report the accident to him. Further to that Lou said well you consider yourself on notice, I think Deak said, "Well, when do I finish?" Lou said, "You can finish now if you want to or you can work out a week and told him to go and get a 10 yard truck and go to work."

What if anything was said about the accident?---Not very much as I can recall, not at that meeting. Other than - no there wasn't a lot said about the actual accident at that particular meeting."

[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
COMMISSIONER

Appearances:
Mr I Deacon, self-represented
Mr S Wright, solicitor, Crisp Hudson & Mann, with Mr L Holloway, for Holloway Quarries & Transport Pty Ltd

Date and Place of Hearing:
2005
December 21
2006
January 10, 17
Ulverstone

1 Transcript PN 41 to 50
2 Transcript PN 283 to 292 and 299 to 305
3 Transcript PN 353/4
4 Transcript PN 414/5