1
Fair Work Act
2009
s.394 - Application for unfair dismissal remedy
Fraser Murray
v
Reliable Petroleum Pty Ltd
(U2017/1796)
COMMISSIONER HAMPTON ADELAIDE, 20 JULY 2017
Application for relief from unfair dismissal – transport driver – single speeding incident –
conduct not deliberate but inattention in breach of policies, road traffic law and reasonable
requirements – serious incident and despite immediate recognition and remorse valid reason
for dismissal found – no prior counselling and no previous incidents of speeding or other
traffic offences in over 39 years of truck driving – incident and responses by applicant not
sufficient to objectively lead to a loss of trust – no reasonable basis for concerns about future
conduct – dismissal harsh and unreasonable in the circumstances – remedy – remedial
benefit of reinstatement – contrition and reasonable basis for future expectation of safe work
– insufficient grounds for loss of trust and confidence found – reinstatement appropriate and
ordered – six months loss of wages will result and no order to be made – order for continuity
of employment and service – application granted.
1. Introduction and case outline
[1] This decision deals with a difficult matter, not because of significant factual disputes
or any conjecture about the application of the relevant legislation. Indeed, the parties have
agreed upon a comprehensive set of facts and the differences that exist in the evidence are not
about the substantive facts. Further, there is in general terms common ground about the
principles which should be applied. Rather, the difficulty arises from the balanced judgement
that has to be made as to whether the dismissal of Mr Fraser Murray by Reliable Petroleum
Pty Ltd (Reliable Petroleum) for a single, but serious, speeding incident as a driver was unfair
in all of the relevant circumstances. In the end result, that judgement becomes clear when the
circumstances are considered objectively in light of the Commission’s statutory charter.
[2] Mr Murray was engaged to drive fuel tankers in and around Adelaide and some
regional locations for Reliable Petroleum and had done so since October 2015. Indeed,
Mr Murray had been a fuel tanker driver for other companies, including predecessors to the
business now operated by Reliable Petroleum, for over 39 years without incident or incurring
any speeding or traffic offences in that capacity. However, on Monday 5 December 2016,
Mr Murray was recorded by a fixed speed camera located on the South Eastern Freeway
[2017] FWC 3552 [Note: An appeal pursuant to s.604 (C2017/4410) was
lodged against this decision - refer to Decision dated 12 September 2017
[[2017] FWC 4704] and Full Bench decision dated 8 November 2017
[2017] FWCFB 5843 for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2017FWCFB5843.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc4704.htm
[2017] FWC 3552
2
travelling down from the Adelaide Hills as travelling at 88kms per hour some short distance
into a 60 kms per hour zone. That speed limit applies only to trucks and buses at that point
and it is a reasonable inference that the limit was established to slow down heavy vehicles
before what is a long and relatively steep and potentially dangerous decline into metropolitan
Adelaide.
[3] The statutory context for this decision is that Mr Murray has made an application
under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair
dismissal. There is no contest that Mr Murray was protected from unfair dismissal and that a
valid application has been made.
[4] Mr Murray was represented by Mr Lawrie of the Transport Workers’ Union of
Australia and in general terms the applicant contends that the dismissal was unfair on two
substantive grounds. Firstly, that there was not a valid reason for dismissal and in that regard
he contends as follows:
That for a reason to be valid it must be sound, defensible and well founded.
Ordinarily where an employee has blatantly, wilfully and recklessly failed to
observe lawful and reasonable safety laws or directions, the employee may be
terminated for valid reasons.
The incident of 5 December 2016 was not a case of blatant, wilful and reckless
disregard for reasonable safety policies and procedures.
The incident occurred because Mr Murray was unfamiliar with the service route
and was not intentional.
Notwithstanding the above, Mr Murray does not deny that he is responsible for his
actions nor does he deny that the incident was in breach of the standing speed limit.
Accordingly, although the applicant accepts responsibility for his mistake, the
applicant submits that the incident on 5 December 2016 does not provide a valid
reason for dismissal.
[5] Mr Murray further contends that at most the incident on 5 December 2016 should have
enlivened counselling or a written warning.
[6] Secondly, Mr Murray contends that the dismissal was harsh and unreasonable on the
following basis:
He had an unblemished service record and history with the respondent;
Reliable Petroleum is a large employer;
Reliable Petroleum did not incur any costs and was not brought into disrepute or
subject to financial/contractual hardship as a result of the 5 December 2016
incident;
He is remorseful, contrite and open to any further training or counselling and is
well received and respected by management and peers;
He has been in the industry for more than 30 years without incident; and
At 65 years of age, he is unlikely to find employment of similar job security.
[2017] FWC 3552
3
[7] Mr Murray seeks reinstatement to his former position.
[8] Reliable Petroleum was represented with permission by Mr Kay of Wallmans Lawyers
and it contends that there was a valid reason for dismissal based upon what it describes as the
serious and wilful misconduct of Mr Murray. In support of that proposition, Reliable
Petroleum contends that there was a sound, defensible and well founded reason for
termination. That is, there can be no suggestion, on the agreed facts or the admitted
statements, that the decision to terminate was in any way capricious, fanciful, spiteful or
prejudiced.
[9] In relation to the seriousness and characterisation of the speeding incident, Reliable
Petroleum contends that:
Mr Murray was engaged to operate a truck in a legally compliant manner. By his
own admissions, this did not occur.
Mr Murray’s behaviour breached road traffic laws and work health and safety laws
and regulations. It also breached a number of the respondent's internal safety and
compliance policies and was inconsistent with the obligations of the relevant
Enterprise Agreement.
The transportation of petroleum is inherently risky and highly regulated as a
consequence. Mr Murray’s conduct put at risk a critical contractual stakeholder
relationship with the respondent's fuel provider, BP Australia.
This was not a trivial breach. It was a breach with significant potential legal
consequences for the respondent, and potentially significant consequences for the
public, in a highly regulated environment, particularly if the respondent was
perceived to have not taken the appropriate steps to address the misconduct.
Although Mr Murray cannot be said to have had specific intent to breach his
professional obligations in precisely the manner he did (for example, by having
knowledge of the precise speed being travelled) in all of the circumstances his
behaviour remained wilful because of the magnitude and consequences of the
misconduct.
The context for the conduct included that the incident occurred on a notoriously
high-risk stretch of road (the end of the South Eastern freeway) where major traffic
incidents have occurred and Mr Murray must have been wilfully blind or recklessly
indifferent to the multiple signage that warned or confirmed the reduced speed
limit for heavy vehicles.
The admitted conduct strikes at the very heart of the respondent's ability to have the
requisite trust and confidence in Mr Murray to perform the duties in question. The
Commission has affirmed the importance of trust and confidence in the
employment relationship, and that it can be destroyed by a single act.
[10] Reliable Petroleum also contends that the dismissal was procedurally fair and that it
should not be found to be harsh given all of the circumstances. In that latter regard, it submits
that:
[2017] FWC 3552
4
Harshness cannot be solely determined in relation to Mr Murray’s personal factors,
but must be determined in light of any countervailing factors surrounding the
serious misconduct.
The respondent took into account all reasonable and valid mitigating
circumstances, which included Mr Murray’s service record, age, contrition and the
potential difficulties he may face in sourcing alternative employment. However,
these factors were not sufficient to mitigate the serious nature of the misconduct.
Substantial weight had to be given to:
the extent to which Mr Murray exceeded the legal speed limit;
the notoriously dangerous location of the misconduct;
the breach of numerous legal and industrial obligations;
the disregard of the respondent's policies, procedures and documented
training; and
the respondent's responsibility to uphold its core safety values.
[11] Further, Reliable Petroleum contends that any alternative response to the applicant's
misconduct, other than termination, would have been misaligned with its safety standards and
also community standards. That is, as a very high profile transporter and distributor of
dangerous goods, the respondent places paramount importance on the safety of its employees
and members of the public who may be affected by its operations. The potentially adverse
reputational repercussions for the respondent, if the dismissal were found to be unfair or if
Mr Murray were reinstated, would be significant.
[12] That is, if the termination were found to be unfair, the respondent would then be
placed in the particularly onerous position of having to justify to its stakeholders, customers,
other road members and the public more generally, why it had been compelled to compensate
and/or provide employment to a truck driver who was exceeding the speed limit so
excessively and in this location.
2. The evidence
[13] Mr Murray provided a witness statement and gave sworn evidence as part of the
hearing of this matter.
[14] Reliable Petroleum provided witness statements and led sworn evidence from the
following senior employees:
Mr Christopher Cornwall - Senior Human Resources Advisor of Shahin Enterprises
Pty Ltd (which is the parent company of the respondent);
Ms Kirsten Tyack – Work Health and Safety Manager of Shahin Enterprises; and
Mr Rick Conti – General Manager of Reliable Petroleum.
[2017] FWC 3552
5
[15] Mr Conti was the ultimate decision maker in relation to the dismissal but acted in
conjunction with Mr Cornwall. Ms Tyack provided information for the investigation and
decision making process conducted by the respondent.
[16] I found that Mr Murray and each of the respondent’s witnesses in this matter were
honest and open in their evidence. Each gave evidence in a manner that was consistent and
credible and they made appropriate concessions.
[17] The differences that exist between their evidence relate largely to judgements about
the implications of, and inferences that should be drawn from, certain events or the fairness of
actions taken; rather than the substantive facts. These judgments are ultimately matters for
this Commission to make as part of its statutory charter.
[18] In addition to the witness evidence, the parties relied upon various documents
including:
The traffic expiation notice issued in relation to the speeding incident;
Various relevant policies, procedures and responsibility statements and written
acknowledgements of these;
Employment contracts relating to Mr Murray’s engagement with Reliable
Petroleum;
The BP Australia (Regional Operations) Consolidated Bulk Fuel Transport (South
Australia) Agreement 2012;
The allegation letter provided to Mr Murray as part of the investigation; and
The letter of dismissal dated 3 February 2017.
3. The facts of the matter
3.1 The agreed facts
[19] The agreed statement of facts provided by the parties, as modified during the hearing
of this matter, largely sets the scene for this decision. The statement is as follows:
“The Parties
The Applicant
1. The Applicant is Mr Fraser Murray, a sixty-five (65) year old male.
2. The Applicant has thirty-nine (39) years of experience in the truck driving
industry.
3. The Applicant holds (and has held) relevant licenses in:
3.1. Heavy Vehicle Operation; and
[2017] FWC 3552
6
3.2. Dangerous Goods.
4. The Applicant is currently unemployed.
5. The Applicant has been unemployed since his employment with the
Respondent was terminated on 31 January 2017.
6. Since the termination of his employment, the Applicant has taken the following
steps to look and apply for paid employment:
6.1. sought employment with Goolwa Bus Service; and
6.2. offered employment with (name provided) as a casual employee
commencing July 2017.
The Respondent
7. The Respondent is Reliable Petroleum Pty Ltd, trading as Reliable Petroleum.
8. The Respondent is a South Australian based distributor of fuels and lubricants
which services the "On the Run" petrol stations.
9. The Respondent is an associated entity of Peregrine Corporation Pty Ltd
(Peregrine Corporation) which forms part of the Peregrine Group.
Employment
General
10. The Applicant commenced employment with the Respondent on 1 October
2015 in the position of "driver".
11. The sole purpose of this position was to operate a fuel tanker which transported
fuel.
12. The Applicant was employed on a permanent and full time basis working on
average fifty (50) hours per week.
13. The BP Australia (Regional Operations) Consolidated Bulk Fuel Transport
(South Australia) Agreement 2012 has terms and conditions relevant to the
employment of the applicant.
14. The Applicant's employment was terminated by the Respondent on 31 January
2017 after the Respondent was satisfied that the Applicant had engaged in
serious and wilful misconduct on 5 December 2016.
[2017] FWC 3552
7
Prior Disciplinary or Performance History
15. Prior to the incident that occurred on 5 December 2016, the Applicant had not
received any warnings, counselling or been subject to any disciplinary action.
Safety Induction and Related Training
16. In or about late 2016, the Respondent provided the Applicant with a copy of
the BP Drivers' Manual (the Manual).
16.1. Section C.5 of the Manual covers "safe driving practices".
16.2. Point viii. of section C.5 clearly states "always drive within the legal
speed limit".
16.3. Point xxi. of section C.5. clearly states "always observe the road
regulations".
17. The Manual will be included with the statements of the Respondent.
The Speeding Incident
18. On 5 December 2016, the Applicant was driving a fuel tanker bearing
registration number SBO2KO (the Fuel Tanker) on the Princes Highway (also
known as the South Eastern Freeway) (the Freeway) travelling towards
Adelaide, South Australia.
19. At 2.01pm CDST, the Fuel Tanker was recorded as travelling at eighty eight
(88) kilometres per hour by a fixed speed camera located near the Crafers West
"on ramp" (the Incident) .
20. The speed limit for trucks and buses on that section of the Freeway is sixty
(60) kilometres per hour.
21. The Applicant was exceeding the speed limit by approximately twenty eight
(28) kilometres per hour.
The Freeway
22. The Freeway forms part of the highway connecting Adelaide, South Australia
and Melbourne, Victoria.
The Fuel Tanker
23. The Fuel Tanker was and is owned by the Respondent. The Fuel Tanker has a
very large and identifiable "Reliable Petroleum" logo written across the fuel
tank.
24. The Fuel Tanker weighs approximately 14.5 tonne and is classified as a truck
in accordance with the Rule 4 of the Australia Road Rules.
[2017] FWC 3552
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25. The Fuel Tanker was not carrying any fuel when the Incident occurred.
26. A photograph of the fuel tanker will be annexed to a Respondent statement.
Signage on Freeway and Location of Incident
27. A vehicle travelling towards Adelaide on the Freeway, prior to approaching the
Crafers interchange, must pass through the Stirling interchange.
28. On and through the Stirling interchange, the speed limit for all vehicles is
ninety (90) kilometres per hour, unless otherwise signed.
29. As a vehicle travels towards Adelaide past the Stirling interchange, just prior to
the Crafers "off ramp", there is a fixed road sign on the left hand side of the
road. This sign says "60 ahead all trucks and buses 500m".
30. This is the first road sign which informs truck and bus drivers that a change in
speed limit is imminent.
31. As a vehicle proceeds through the Crafers interchange, it must pass under the
Waverly Ridge Road Bridge which runs perpendicular to the Freeway (the
Bridge).
32. Prior to approaching the Bridge, there is a fixed road sign. This sign states
"60 all trucks and buses 100m". This is the second road sign which informs
truck and bus drivers that a change in speed limit is imminent (before the speed
camera in question).
33. After this sign, but again prior to the Bridge, there is a further fixed road sign.
This sign states "60 all trucks and buses unless 40km/h applies".
34. From this sign, all trucks and buses must travel at sixty (60) kilometres per
hour to the bottom of the Freeway, unless a forty (40) kilometre per hour
restriction applies.
35. There is also a fixed sign on the Bridge that states "safety camera ahead". This
is a reminder to all drivers that they are approaching a speed camera.
36. After passing under the Bridge and before the Craters on ramp, there is a fixed
road sign which states "long steep descent 500m ahead". This is a reminder to
truck and bus drivers that a descent is approaching.
37. The speed restriction for trucks and buses from the Crafers Interchange has
been in place since 1September 2014.
[2017] FWC 3552
9
38. The Crafers Interchange marks the beginning of a seven (7) kilometre steep
descent into Adelaide (the Descent) which concludes at a large intersection of
the Freeway, Cross Road, Glen Osmond Road and Portrush Road.
Respondent Investigation and Termination
39. The Respondent first became aware of the Incident when in or about late
December 2016, it received a traffic expiation notice (Notice Number
N1751479A) for the Fuel Tanker (the Expiation Notice).
40. The Expiation Notice alleged that on 5 December 2016, at 2.01pm CDST at
Craters West, the Fuel Tanker was travelling at eighty eight (88) kilometres per
hour and exceeding the speed limit of sixty (60) kilometres per hour by twenty
eight (28) kilometres per hour.
41. Mr Zacharjak notified Mr Marks of the Expiation Notice. Mr Marks then
notified Mr Riley of the Expiation Notice for the purpose of identifying the
driver of the vehicle.
42. Mr Riley's review of the Respondent's records revealed that the Applicant was
driving the vehicle.
43. On 10 January 2017, the Applicant was then contacted by his line Manager,
Mr Schroeder, and advised of the Expiation Notice.
44. On 17 January 2017, the Applicant was provided with a letter of allegation
regarding the Incident (Letter of Allegation).
45. The Letter of Allegation alleged that the Incident amounted to serious and
wilful misconduct and informed the Applicant that he was suspended from his
duties on full pay.
46. On 25 January 2017, the Applicant attended a meeting with the Respondent's
representatives.
47. The Respondent's representatives were Mr Chris Cornwall, Senior HR Advisor,
Peregrine Corporation and Mr Rick Conti, General Manager, Reliable
Petroleum.
48. Mr Phil McAuley attended the meeting as the Applicant's support person.
49. During this meeting, the Applicant admitted:
49.1. the Incident had occurred;
49.2. he was not distracted at the time the Incident occurred; and
49.3. there was no reason or justification for him to be speeding at the time
the Incident occurred.
[2017] FWC 3552
10
50. After some discussion, the Respondent's representatives took a break for
approximately twenty five (25) minutes to consider the Applicant's responses.
51. The Respondent's representatives then adjourned the meeting until 31 January
2017 to enable them to consider the matter further and undertake further
investigation.
52. On 31 January 2017, the Applicant attended a further meeting with the
Respondent's representatives.
53. The Respondent's representatives were again Mr Cornwall and Mr Conti.
54. Mr Dean Watt also attended the meeting as the Applicant's support person.
55. During this meeting, the Respondent's representatives advised the Applicant
that the investigation was complete, the allegations had been substantiated and
that the Applicant's employment was being terminated for serious and wilful
misconduct.
56. The Applicant was given notice of his immediate termination and was not paid
in lieu of notice of termination.
57. A letter of termination was sent to the Applicant's residential address on or
about 3 February 2017.
Average weekly earnings
58. The Applicant's average gross weekly earnings at the time of termination were
$1,704.26.
59. The Applicant's average nett weekly earnings at the time of termination were
$1,268.11.”1
3.2 Additional facts
[20] It is also appropriate to make some additional factual findings based upon the evidence
that is before the Commission and these should be read in conjunction with the agreed facts.
Mr Murray’s work history
[21] Mr Murray has worked as a fuel tanker driver for much of the 39 years he has been in
the road transport industry. Prior to the events of 5 December 2016, he had not received a
speeding fine or committed a traffic offence as a truck driver in that entire career.
[22] Some of that prior service was with companies which are predecessors of the business
now conducted by Reliable Petroleum.
[2017] FWC 3552
11
[23] During the period of employment with Reliable Petroleum, Mr Murray was well
regarded by the both management and fellow drivers. Prior to the events leading to this
application, there were no disciplinary issues and he has demonstrated by his actions and
conduct that he was committed to safety.
[24] Mr Murray usually drove within the Adelaide metropolitan area and did not normally
travel on the Freeway. Mr Murray had previously driven a heavy vehicle on the Freeway
however this was prior to the changes in speed limits and signage referred to in the statement
of agreed facts.
[25] Amongst the training provided to Mr Murray was a session on “adherence to local
conditional requirements ie South Eastern Freeway”.2 Based upon the evidence before the
Commission that training was about load-mass management and route requirements rather
than the dual speed limits on the Freeway. Mr Murray was however aware of the fatalities and
other incidents that occurred on the end of the Freeway in recent years involving heavy
vehicles, and in effect, was cognisant of the fact that the Freeway was heavily policed by
speed cameras.
The business of Reliable Petroleum
[26] Reliable Petroleum is part of the Peregrine Group and that group of companies are
very high profile in the South Australian community. In particular, the group conducts a large
chain of fuel retail outlets and is a major sponsor of sporting and other community activities.
[27] Reliable Petroleum has a business relationship with BP Australia and at least some of
the fuel tankers that are used include the logos of both businesses.
The circumstances of the speeding incident
[28] I will later deal with Mr Murray’s evidence about his response to the speeding
incident. His evidence about that incident beyond that reflected in the statement of agreed
facts was to the following effect:
He was travelling back into Adelaide from Callington (about 100 kms round trip
out of the city) in the left lane, going with the traffic and not over-taking any
vehicles – noting that the speed limit for other vehicles at that point was 90kms per
hour;
He was looking for the illuminated speed signs that are used on the Freeway at
other points but for some reason he missed the various signs leading to, and at the
point, where the 60 kms per hour speed limit starts to apply for heavy vehicles and
continued at a speed (88 kms per hour) consistent with the previous limit (90 kms
per hour);
He became concerned, in the last slightly uphill part of that section of the Freeway
(something less than 500 metres into the zone) and before the continuous decline in
the road commenced, that he should have slowed to 60 kms per hour and did so at
that point; and
[2017] FWC 3552
12
He proceeded down the remaining part of the Freeway within the relevant speed
limit as confirmed by the presence of an additional speed camera in the descent and
the absence of any further expiation notices.
[29] I accept Mr Murray’s evidence about these matters, however, I will return to the
consequences and characterisation of his conduct later in this decision. This includes the
seriousness of what could be described as the major inattention evident in the above
circumstances.
[30] Based upon my findings, travelling at 88 kms per hour, Mr Murray’s truck was above
the speed limit for approximately ten seconds at the point of the speed camera and he was
travelling at the correct speed within a further 20 seconds or so.3 There is no evidence that the
speed of the truck caused any embarrassment to other drivers on the Freeway.
The response of Reliable Petroleum and the reasons for the dismissal
[31] The expiation notice was provided by the relevant authority to Reliable Petroleum, as
the registered owner of the vehicle, in or about late December 2016. The notice stated that its
date of issue was 20 December 2017. The respondent then took steps to ascertain which driver
was involved. On 10 January 2017, Mr Murray’s direct line manager contacted him and
advised that the expiation notice for the speeding offence had been received and that his
employment was being terminated. That manager did not give evidence in this matter and it is
apparent from the evidence that was led that termination of employment at that point prior to
an investigation was not contemplated by the respondent’s policies and procedures.
[32] Mr Cornwall, and subsequently on 12 January 2017, Mr Conti became aware of the
manager’s actions. On 13 January 2017, Mr Conti contacted Mr Murray and advised that he
had not been dismissed despite what he may have been informed, that he would be suspended
on full pay pending an investigation and that there would be a formal meeting. A letter of
allegation was also to be sent and this occurred on 17 January 2017.
[33] The two meetings with Mr Murray about these allegations are detailed in the agreed
facts set out above. I will also further deal with Mr Murray’s response below.
[34] Mr Conti, with the support of Mr Cornwall, determined that Mr Murray’s employment
should be terminated. It is apparent that this decision was a difficult and considered one for
the respondent given its views about the conduct and the standing that Mr Murray had in the
business.
[35] The substance of Mr Conti’s decision was that he considered that Mr Murray could not
be trusted not to repeat the speeding incident. Further, he considered that the incident
represented serious and wilful misconduct and importantly, that the company would be open
to public criticism if it did not act on the misconduct and a further incident occurred. The
basis of that decision as drawn from his witness statement and oral evidence may be
summarised in the following terms:
The answers provided by Mr Murray did not justify or excuse the speeding given
his job as a dangerous goods truck driver;
[2017] FWC 3552
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The extent of the speeding (28 kms per hour over the limit) and the location –
being a well-known and extensively policed “black spot” made the incident more
serious;
The conduct was beyond a reasonable misunderstanding; and
The respondent was left with no real choice but to dismiss Mr Murray so as to
avoid setting a dangerous precedent for other employees.
[36] Mr Conti also understood Mr Murray’s response to represent excuses and in particular
that:
“Going with the flow of traffic” – might suggest that it was okay for him to speed if
other road users were travelling at a different speed;
“Travelling to the conditions at the time” – did not make sense given that there was
no suggestion of poor road conditions or other similar factors;
Being unfamiliar with the road was not an excuse for a very experienced driver and
he was required at all times to apply his professional knowledge and adapt to
changing speed limits and other factors, and to be aware of such particularly on
unfamiliar roads; and
Speeding was as bad on any road.
[37] However, Mr Conti and Mr Cornwall accepted that Mr Murray was truly remorseful
for his conduct leading to the speeding incident.
[38] In reaching its decision, Reliable Petroleum also considered an informal transport
industry practice that apparently operates to the effect that speeding offences in excess of
15 kms per hour would be considered for potential dismissal. I note that this is not reflected in
any policies of the respondent, and that appropriately, no simple decision-rule was applied in
this case.
The response of Mr Murray to the allegations
[39] I have set out earlier Mr Murray’s evidence about the actual events on 5 December
2016, which I have accepted. His response during the investigation process, and the view
formed by Reliable Petroleum have also been set out in the agreed statement of facts and the
findings immediately above.
[40] I note further that Mr Murray contested the expiation notice and that the Magistrate
who heard the matter did not record a conviction and did not order that Court costs be paid (as
would be normal in the case of an unsuccessful contest). The fine did however stand. Mr
Murray contested the notice in an attempt to reduce the consequences of the offence in light
of the dismissal and his view that it was unfair; rather than as an attempt to deny or downplay
the seriousness of the conduct itself.
[41] I have considered the responses provided by the Mr Murray in light of his evidence to
the Commission about the incident.
[2017] FWC 3552
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[42] Without detracting from that detail, the responses included to the effect that:
He was going with the traffic and travelling to the conditions at the time;
He was unfamiliar with the road and the revised speed limit changes and was
looking out for the illuminated signs used elsewhere on the Freeway; and
It was not as if he was speeding in the metropolitan area (such as Greenhill Road)
where the general speed limit of 60 kms per hour applied.
[43] It was evident that Mr Murray did not suggest that these various factors represented
any form of excuse for the conduct. Mr Murray genuinely regrets the speeding incident and its
impact upon his long-standing reputation as a safe and professional driver. Rather, the
comments made about the incident during the investigation must be seen in the context that he
had been stood down pending a decision about his future employment. Further, the comments
now provided represent both an attempt to provide context and to justify why the conduct did
not warrant dismissal.
[44] For example, ‘going with the flow of traffic’ is relevant to what was taking place
around Mr Murray at the time and ‘travelling to the conditions’ touches upon one of the
requirements placed upon the drivers by the respondent’s policies. Further, the place that the
incident occurred is relevant to the degree of risk and the potential consequences of the
conduct.
[45] However, as conceded by Mr Murray and will become clear in this decision, these
factors are not an excuse for the conduct. Rather, they go to Mr Murray’s state of mind and
his actual response to the conduct. A proper understanding of that response is also relevant to
ascertaining whether the respondent’s apparent loss of trust is objectively well founded and
whether the inferences drawn from the conduct and the responses were reasonable.
[46] I also note that after the events leading to this application, Mr Murray successfully
applied for the renewal of his Dangerous Goods permit.
4. Was Mr Murray’s dismissal unfair within the meaning of the FW
Act?
[47] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal
Code; and
(d) the dismissal was not a case of genuine redundancy.”
[2017] FWC 3552
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[48] Mr Murray was dismissed, the employer is not a small business within the meaning of
the FW Act, and the concept of a genuine redundancy is not relevant here.
[49] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or
unreasonable.
[50] The FW Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal;
and
(e) if the dismissal is related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory
performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely
to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[51] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature
of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of
considerations that must, where relevant, be treated as a matter of significance in the decision
making process and weighed up accordingly.
[52] It is convenient therefore to use the various provisions of s.387, with reference to the
relevant circumstances, to outline my consideration of the matter.
[2017] FWC 3552
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Section 387(a) – whether there was a valid reason for the dismissal related to
Mr Murray’s capacity or conduct (including its effect on the safety and welfare of other
employees).
[53] Valid in this context is generally considered to be whether there was a sound,
defensible or well-founded reason for the dismissal. Further, in considering whether a reason
is valid, the requirement should be applied in the practical sphere of the relationship between
an employer and an employee where each has rights, privileges, duties and obligations
conferred and imposed on them. That is, the provisions must be applied in a practical,
common sense way to ensure that the employer and employee are each treated fairly.4
[54] The failure to follow a lawful instruction or comply with policy which was reasonable
in the circumstances may provide an employer with a valid reason to terminate an employee’s
employment.5 It is however, clear from the authorities that the reason for termination must be
defensible or justifiable on an objective analysis of the relevant facts before the Commission.
That is, it is not enough for an employer to rely upon its reasonable belief that the termination
was for a valid reason.6 Equally, facts justifying dismissal, which existed at the time of the
termination, should be considered, even if the employer was unaware of those facts and did
not rely on them at the time of dismissal.7
[55] In Woolworths Limited (t/as Safeway) v Cameron Brown8 a Full Bench of the AIRC,
after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach
of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,9 considered when a
failure to abide by a policy of an employer would amount to a valid reason for termination of
employment and when it would not:
“In summary, a breach of an employer’s policy involving or amounting to a failure to
obey a lawful and reasonable direction of the employer sufficient to justify dismissal at
common law will amount to a valid reason for termination of employment within the
meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-
founded.” A failure to comply with a direction to do or refrain from doing something
in compliance with an employer’s policy will not provide a valid reason for
termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or
matters affecting the work of the employee; or
(b) the policy, or a direction to comply with the policy, is unreasonable.”10
[56] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,11 Deegan C
determined that:
“Not every breach of a policy will provide a valid reason for termination of
employment. However in circumstances where the policy is both lawful and
reasonable and an employer has stressed the importance of the particular policy to the
business and made it clear to employees that any breach is likely to result in
[2017] FWC 3552
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termination of employment, then an employee who knowingly breaches that policy
will have difficulty making out an argument that there is no valid reason for the
termination.” 12
[57] Although also dealing with considerations beyond the existence of a valid reason, in
Bostik (Australia) Pty Ltd v Gorgevski (No 1)13 the Court observed:
“Employers can promulgate polices and give directions to employees as they see fit, but
they cannot exclude the possibility that instant dismissal of an individual employee for
non-compliance may, in the particular circumstances of an individual case, be harsh,
unjust and unreasonable.”14
[58] Mr Murray’s conduct essentially involved inadvertence in not looking out for the
multiple change of speed limit signage and slowing at the point required. Although not
deliberate, this was a serious oversight in all of the circumstances. This led to a situation
where he was driving a heavy vehicle with an empty fuel tanker in tow at some 28 kms per
hour over the speed limit, on a section of road where, for reasons outlined earlier, that
circumstance was potentially significant. Mr Murray’s lack of familiarisation with the road
represents an additional factor why care should have been taken. The conduct led to an
offence that was expiable by the payment of a fee and with the loss of some demerit points
under the relevant road traffic legislation and was not consistent with other safety obligations
and requirements cited by the respondent. Despite the contextual and mitigating
circumstances that I will return to, this represents a serious breach of his various duties as a
driver.
[59] The policies and procedures of Reliable Petroleum and the other obligations were
sufficiently explained to Mr Murray and understood by him. They were also reasonable and
appropriate given the nature of the industry and the public, personal and business risks
associated with the work of a heavy vehicle driver.
[60] I am satisfied that there was a valid reason for dismissal.
Section 387(b) – whether Mr Murray was notified of the reasons for dismissal.
[61] This consideration requires the Commission to assess whether the applicant concerned
was relevantly notified of the reasons leading to the dismissal before that decision was
taken.15
[62] The evident purpose of this consideration is that notification of the valid reason to
terminate must be given to the employee before the decision to terminate the employee is
made and the notification needs to be in explicit and clear terms.
[63] Mr Murray was notified of the reasons.
[2017] FWC 3552
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Section 387(c) – whether Mr Murray was given an opportunity to respond to any reason
related to his capacity or conduct.
[64] The relevant reasons are those arising from the valid reasons found by the
Commission. This consideration is therefore directly related to the above discussion.
[65] This process contemplated by the FW Act does not require any formality and is to be
applied in a common sense way to ensure the employee has been treated fairly. 16
[66] I find that Mr Murray was aware of the nature of the employer’s concerns about his
conduct and had a reasonable opportunity to respond to these concerns.
Section 387(d) – any unreasonable refusal by the respondent to allow Mr Murray a
support person.
[67] Mr Murray was afforded an opportunity to have a support person attend the meetings
leading to the dismissal and this occurred.
Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Murray–
whether he has been warned about that unsatisfactory performance before the
dismissal.
[68] This consideration relates to performance of the job. Performance in this context
includes the employee’s capacity to do the work, and the diligence and care taken with that
work.17
[69] In this case, the dismissal was fundamentally related to conduct.
Section 387(f) – the degree to which the size of the respondent’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal.
Section 387(g) – the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal.
[70] Reliable Petroleum is a large business and has access to dedicated human resources
expertise, which was involved in the process leading to Mr Murray’s dismissal.
Section 387(h) - other matters considered to be relevant.
[71] Amongst other considerations, the Commission should have regard to the impact of
the dismissal upon the applicant given all of the circumstances. This includes consideration as
to whether the dismissal was harsh in the sense that it was disproportionate to the actual
conduct found by the Commission.18
[72] Further, a dismissal may, depending upon the overall circumstances, be considered to
be harsh on the applicant employee due to the economic and personal consequences resulting
from being dismissed.19
[2017] FWC 3552
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[73] There are competing considerations in this regard. These include the seriousness of the
incident, the potential impact upon reputation and public risk and the extent of the speeding
and the context in which it occurred. Further, the fact that Mr Murray performed driving
functions before and after the speeding incident without other concerns, and had a very long
history of driving without previous speeding offences, are also relevant considerations.
[74] Despite that very long and impeccable driving history, which is relevant to the
likelihood of any further such conduct, Mr Murray’s service with Reliable Petroleum was
relatively short.
[75] Reliable Petroleum was rightly concerned about the potential for adverse publicity if it
did not take appropriate action against Mr Murray in circumstances where another incident
occurred into the future and other road users or infrastructure was involved in any such
incident. The capacity for conduct to have such a result has been recognised as relevant to the
present context.20 This meant that the respondent could not condone the conduct and it was
necessary and appropriate that a serious response be provided. This did not mean that
dismissal was the only option and the fairness of that response remains for this Commission
to determine in all of the prevailing circumstances. This includes consideration as to whether,
objectively, there were sufficient grounds to conclude that Mr Murray could no longer be
trusted to safely and compliantly perform his job including whether appropriate inferences
were drawn in that regard.
[76] Having considered all of the circumstances, I consider that there are a number of
factors that make the dismissal of Mr Murray harsh. These include:
The exact nature of the conduct and the circumstances in which the incident took
place including that it was a single incident involving inattention rather than a
deliberate or reckless action, and objectively there was little room for concerns that
the behaviour would be repeated;
Mr Murray’s immediate recognition that his conduct was not appropriate and his
genuine contrition;
The likely impact upon Mr Murray of the dismissal given his age and industry
service;
The absence of any actual reputational or other consequences for Reliable
Petroleum; and
His work history, the nature of the work he had been assigned over that time, and
the nature and circumstances of his employment.
[77] When weighed in the context of all of the circumstances, including those factors that
led to the finding of a valid reason for dismissal and the potential risks and consequences
arising from the conduct, I find that the dismissal was harsh.
[78] I also consider that the view taken by Reliable Petroleum that it could no longer trust
Mr Murray was based upon inferences that were not reasonably drawn.
[2017] FWC 3552
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Conclusions on the dismissal
[79] I have weighed all of the factors and circumstances of this application.
[80] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,21 the Full Bench observed:
“[24] ... ... The existence of a valid reason is a very important consideration in any
unfair dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
conclusion of harshness is open.”
[81] In Byrne and Frew v Australian Airlines Pty Ltd,22 the following observations were
made by McHugh and Gummow JJ:
“It may be that the termination is harsh but not unreasonable, unjust but not harsh or
unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will
overlap. Thus, the one termination of employment may be unjust because the
employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[82] In determining matters in this jurisdiction, the Commission will not stand in the shoes
of the employer and determine what the Commission would do if it was in that position.23
Further, the fact that the employer could have chosen a lesser penalty is not, of itself, a ground
to find that the dismissal was unfair. The Commission is also directed to ensure a “fair go all
round”. This is reinforced by the objects of this Part of the FW Act in s.381 including ss.(2)
which provides as follows:
“The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner
of deciding on and working out such remedies, are intended to ensure that a “fair
go all round” is accorded to both the employer and employee concerned.”
[83] I have found that a valid reason for dismissal existed and there are no concerns about
procedural unfairness.
[84] However, having regard to the provisions of s.387 of the FW Act as applied to all of
my findings in this case, I am for reasons set out above, persuaded that Mr Murray’s dismissal
was harsh and unreasonable.
[85] The dismissal was therefore unfair within the meaning of the FW Act.
[2017] FWC 3552
21
5. Remedy
[86] Mr Murray seeks reinstatement to his former position with some associated orders. If
reinstated, he does not seek an order for lost wages between his dismissal and the resumption
of his employment. The provision of any remedy is opposed by Reliable Petroleum.
[87] Division 4 of Part 3-2 of the FW Act provides as follows:
“Division 4—Remedies for unfair dismissal
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement,
or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair
dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) the FWC may make the order only if the person has made an application
under section 394.
(3) the FWC must not order the payment of compensation to the person
unless:
(a) the FWC is satisfied that reinstatement of the person is
inappropriate; and
(b) the FWC considers an order for payment of compensation is
appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s
employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was
employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions
no less favourable than those on which the person was employed
immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before
the dismissal is no longer a position with the person’s employer at
the time of the dismissal; and
[2017] FWC 3552
22
(b) that position, or an equivalent position, is a position with an
associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was
employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no
less favourable than those on which the person was employed
immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it
appropriate to do so, the FWC may also make any order that the FWC
considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or
(if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it
appropriate to do so, the FWC may also make any order that the FWC
considers appropriate to cause the employer to pay to the person an
amount for the remuneration lost, or likely to have been lost, by the
person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection
(3), FWC must take into account:
(a) the amount of any remuneration earned by the person from
employment or other work during the period between the dismissal
and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned
by the person during the period between the making of the order for
reinstatement and the actual reinstatement.
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order
that the person’s employer at the time of the dismissal pay compensation
to the person in lieu of reinstatement.
Criteria for deciding amounts
[2017] FWC 3552
23
(2) In determining an amount for the purposes of an order under subsection
(1), the FWC must take into account all the circumstances of the case
including:
(a) the effect of the order on the viability of the employer’s enterprise;
and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would
have been likely to receive, if the person had not been dismissed;
and
(d) the efforts of the person (if any) to mitigate the loss suffered by the
person because of the dismissal; and
(e) the amount of any remuneration earned by the person from
employment or other work during the period between the dismissal
and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the
person during the period between the making of the order for
compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the
employer’s decision to dismiss the person, the FWC must reduce the
amount it would otherwise order under subsection (1) by an appropriate
amount on account of the misconduct.
Shock, distress etc. Disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection
(1) must not include a component by way of compensation for shock,
distress or humiliation, or other analogous hurt, caused to the person by
the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection
(1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before
the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
[2017] FWC 3552
24
(whichever is higher) for any period of employment with the
employer during the 26 weeks immediately before the
dismissal; and
(b) if the employee was on leave without pay or without full pay while
so employed during any part of that period—the amount of
remuneration taken to have been received by the employee for the
period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may
permit the employer concerned to pay the amount required in instalments
specified in the order.”
[88] The prerequisites of ss.390(1) and (2) have been met in this case.
[89] Mr Murray seeks reinstatement to his former position with the maintenance of
continuity of service. He has not secured any significant or on-going work since his dismissal
and has taken reasonable steps to seek alternative employment.
[90] Reliable Petroleum is opposed to that outcome on a number of grounds including that,
in effect, it has lost trust and confidence in Mr Murray to perform work in the future in a safe
and policy compliant manner. It also expressed concerns about the impact of reinstatement
upon its capacity to enforce its safety policies into the future.
[91] Section 390 of the FW Act makes it clear that compensation is only to be awarded as a
remedy where the Commission is satisfied that reinstatement is inappropriate and that
compensation is appropriate in all the circumstances. As a result, it is proper to firstly
consider whether reinstatement is appropriate.
[92] In Australia Meat Holdings Pty Ltd v McLauchlan24 a Full Bench of the AIRC, having
considered the language of the Act operating at that time, which is comparable to the present
provision, said:
“In our view a consideration of the appropriateness of reinstatement involves the
assessment of a broader range of factors than practicability.
... ...
We accept that the question of whether there has been a loss of trust and confidence is
a relevant consideration in determining whether reinstatement is appropriate. It is one
factor to be taken into account, but it is not necessarily conclusive.
In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, the Full
Court of the Industrial Relations Court said:
[2017] FWC 3552
25
"... We accept that the question whether there has been a loss of trust and
confidence is a relevant consideration in determining whether reinstatement is
impracticable, provided that such loss of trust and confidence is soundly and
rationally based.
At the same time it must be recognised that, where an employer, or a senior
officer of an employer, accuses an employee of wrongdoing justifying the
summary termination of the employee's employment, the accuser will often be
reluctant to shift from the view that such wrongdoing has occurred, irrespective
of the Court's finding on that question in the resolution of an application under
Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed
the relationship of trust and confidence between employer and employee, and
so made reinstatement impracticable, an employee who was terminated after an
accusation of wrongdoing but later succeeded in an application under the
Division would be denied access to the primary remedy provided by the
legislation. Compensation, which is subject to a statutory limit, would be the
only available remedy. Consequently, it is important that the Court carefully
scrutinise any claim by an employer that reinstatement is impracticable because
of loss of confidence in the employee.
Each case must be decided on its own merits."
While Perkins was decided under the former statutory scheme the above observations
remain relevant to the question of whether reinstatement is appropriate in a particular
case.”
[93] More recently, a Full Bench of the Commission further considered the statutory
scheme surrounding the remedy provisions including the role played by an alleged loss of
trust and confidence felt by the employer. In Colson v Barwon Heath,25 the Full Bench found
as follows:
“[26] Section 381(1)(c) of the Act requires an emphasis on reinstatement in providing
remedies if a dismissal is found to be unfair, which is one element of the object of Part
3–2. Section 381(2) of the Act requires as part of the object that a “fair go all round” is
accorded to both the employer and employee concerned in deciding on and working
out remedies under Part 3–2. Section 390(3) of the Act provides that the payment of
compensation should not be ordered unless the Commission is satisfied that
reinstatement of the person is inappropriate (and an order for compensation is
appropriate).
...
[31] The approach of the Deputy President is consistent with that of the Full Bench in
Regional Express Holdings Limited trading as REX Airlines v Richards which stated:
[2017] FWC 3552
26
“[23] It is clear from the terms of s.390(3)(a) that, in circumstances where a
remedy is appropriate, compensation must not be ordered unless the tribunal is
satisfied that reinstatement is inappropriate. Seen in the proper context the
Commissioner’s statement that reinstatement is the presumptive remedy is not
indicative of any error in the decision. The section provides that compensation
must not be ordered unless reinstatement has been found to be inappropriate.
There is no basis for concluding that the Commissioner interpreted the section
differently. Rex’s first submission on remedy must fail.
[24] In relation to remedy, therefore, the first question is whether reinstatement
is appropriate.”
[94] The Full Bench further observed that consideration of reinstatement involved a
balancing of the relevant considerations based upon evidence,26 and that the approach outlined
in Perkins remains sound and requires consideration of the “rationality” of the basis of the
employer’s concerns.27
[95] In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese
Community Ethnic School South Australian Chapter28 the Full Bench conveniently
summarised the approach required as follows:
“[27] The following propositions concerning the impact of a loss of trust and
confidence on the question of whether reinstatement is appropriate may be distilled
from the decided cases:
Whether there has been a loss of trust and confidence is a relevant consideration in
determining whether reinstatement is appropriate but while it will often be an
important consideration it is not the sole criterion or even a necessary one in
determining whether or not to order reinstatement.
Each case must be decided on its own facts, including the nature of the
employment concerned. There may be a limited number of circumstances in which
any ripple on the surface of the employment relationship will destroy its viability
but in most cases the employment relationship is capable of withstanding some
friction and doubts.
An allegation that there has been a loss of trust and confidence must be soundly
and rationally based and it is important to carefully scrutinise a claim that
reinstatement is inappropriate because of a loss of confidence in the employee. The
onus of establishing a loss of trust and confidence rests on the party making the
assertion.
The reluctance of an employer to shift from a view, despite a tribunal’s assessment
that the employee was not guilty of serious wrongdoing or misconduct, does not
provide a sound basis to conclude that the relationship of trust and confidence is
irreparably damaged or destroyed.
The fact that it may be difficult or embarrassing for an employer to be required to
re-employ an employee whom the employer believed to have been guilty of serious
wrongdoing or misconduct are not necessarily indicative of a loss of trust and
confidence so as to make restoring the employment relationship inappropriate.
[2017] FWC 3552
27
[28] Ultimately, the question is whether there can be a sufficient level of trust and
confidence restored to make the relationship viable and productive. In making this
assessment, it is appropriate to consider the rationality of any attitude taken by a
party.”
[96] Given the potential remedial benefit of reinstatement in the circumstances of
Mr Murray, it is appropriate to assess the basis upon which that course of action is opposed
within the framework provided by the decisions outlined above, along with other
considerations bearing upon this discretionary judgment.
[97] Reliable Petroleum contends that it has lost trust and confidence in Mr Murray and as
a result, he should not be reinstated. Further, it contends that his reinstatement would
undermine its capacity to apply its policies and to defend itself from risk of public criticism.
[98] Without overlooking the witness statements and the statement of agreed facts, the oral
evidence of Mr Conti and Mr Cornwall about these matters, and the potential for a
reinstatement order to be made, included the following:
Mr Cornwall: “The relationship had become untenable on that basis, that there was a
level of irretrievable trust…Probably could have looked past the speed
limit, but the initial response I just felt wasn’t appropriate for a driver
of that experience, taking into consideration too we’re carrying
dangerous goods. Additionally… what would have happened if say, the
applicant had an accident in six months’ time and someone was
seriously injured or worse? I think we all know that we wouldn’t see
through the press and the media that, company treats its drivers well,
pays its drivers well. It would be Peregrine Corporation has allowed
this driver to continue to work after serious incident on the south
eastern, why was that allowed to occur? For mine, I couldn’t take that
risk.”29
…
“Accept that he showed contrition… and that he was remorseful…the
applicant is a nice bloke, a nice guy, it’s a terrible situation that was put
before us but unfortunately we’ve got to look at the bigger picture too,
we’ve got corporate responsibilities and obligations that we need to
adhere to…unfortunately it’s not just about the person… if it was a
personal decision and a decision based on popularity, the applicant I
have no doubt would still be in his role but unfortunately we don’t have
that luxury.”30
Mr Conti: “I had many of his colleagues ringing me, supporting Fraser’s good
record, so I was definitely aware of his good record.”31
…
“No, I don’t think it was a pattern on misconduct.”32
[2017] FWC 3552
28
…
“Far from it, far from it, Fraser is not recalcitrant at all.”33
…
“I think for this, if we did a final written warning, in terms of scale, for
us, for myself in transport management, this is at the most serious end
so I didn’t think that all of those other mitigating factors were enough
to steer us away from how serious it was on the continuum...I couldn’t
think of a more serious speed breach that would deserve it.”34
…
“I don’t think there was ever any concern about getting Mr Murray off
the road straight away. That’s not the way I thought about it… for me
there was no feeling from everyone inside the company that we had to
expedite.”35
[99] When asked how Mr Conti reconciles the initial delay in dealing with the matter and
not being concerned about ensuring Mr Murray was no longer on the road with the decision to
dismiss him without notice for serious and wilful misconduct, Mr Conti stated:
“I’m making that judgement now, because I’ve met Mr Murray and had several
discussions with him so I’m at ease with his behaviour from that point of view.”36
[100] In relation to whether Mr Conti believed Mr Murray could return to Reliable
Petroleum and be a valuable employee, Mr Conti responded:
“I’m sure Fraser would do his best…valuable is probably not the right word…it would
also come with a whole bunch complications for us to manage...sends a signal to all
our drivers that you can go up to 28 kilometres over the limit and still be reinstated.”37
[101] Mr Murray’s evidence bearing upon the prospect of returning to work included the
following:
“I take full responsibility for my actions… I find it very embarrassing.”38
“I have never, since I’ve been a tanker driver in 1978, I have never had anyone from the
public or motorist ever phone and complain about my professionalism as a driver.”39
“I take safety very seriously.”40
“Do you think you can return to Reliable?
Yes because I have a very good relationship with the management at the Largs
terminal and I have very good relationship with the drivers and I get along well
with everyone.41
I think that I would be a valued employee…It’s my first mistake in 39 years, I
didn’t intentionally do it.”42
[2017] FWC 3552
29
“What is the likelihood of this incident or a similar incident happening again?
Nil… It wouldn’t happen again.”43
After what’s happened, you wouldn’t make the same mistake twice.”44
[102] Having regard to the totality of the evidence and the context in which the above
testimony was provided, all of this evidence is genuine and the issues involved reflect the
balanced nature of the decision that the Commission must make for itself in this matter.
[103] In this case, I have found that the taking of disciplinary action in connection with the
incident was warranted and, in effect, the maintenance of appropriate discipline within
Reliable Petroleum in that regard was particularly important given the nature of the work and
safety risks within the industry. Further, those factors that have led to the view that the
dismissal was harsh and unreasonable are also important contrary considerations.
[104] I have found that a valid reason for dismissal existed, but determined that the
termination was unfair given the entire context. Depending upon the circumstances, an order
for reinstatement might be appropriate as it is capable of directly addressing the impact of the
dismissal. However, each case must be considered on its own facts and there is no automatic
relationship between the findings on merit and remedy.45
[105] In this case, I consider that reinstatement of Mr Murray is appropriate. There is not a
sufficient evidentiary basis to objectively justify the contention that there has been a loss of
trust and confidence in the employment relationship. This includes the actual nature of the
conduct, Mr Murray’s response to that conduct when considered in context and his genuine
recognition and remorse. In reaching this conclusion I have also considered the responses
provided by Mr Murray in evidence about how he might conduct himself if returned to the
workplace and the evidence of the management representatives in that context. This indicates
that Mr Murray was, and is, a well-regarded driver within the workplace and I am satisfied
that he could return to productively and appropriately perform the duties of a heavy vehicle
driver. The nature of the workplace is also conducive to such an outcome. Further, his long
history as a driver and the absence of any incidents both before and after the speeding incident
are strong indicators that Mr Murray will not “reoffend”.
[106] There is nothing in the other circumstances evident here that means that reinstatement
is inappropriate or inconsistent with a fair go all around.46 Indeed, I consider that a mutually
safe and productive working relationship can be resumed and that a full understanding of the
circumstances of the conduct and the basis of the reinstatement will not have the negative
consequences feared by Mr Conti.
[107] Section 391(3) of the FW Act contemplates that the Commission may make an Order
to restore lost pay. This is a discretionary power and given the desirability of reinforcing the
need to comply with safety polices, I do not consider that such an Order is appropriate here
and no Order under s.391(3) will be made. I will however make an Order maintaining the
continuity of Mr Murray’s employment and service under s.391(2) of the FW Act as I
consider that step to be appropriate in all of the circumstances.
[2017] FWC 3552
30
[108] I also consider that the action Reliable Petroleum is able to apply under its disciplinary
policy to Mr Murray given any reinstatement (the capacity to issue a final written warning),
when combined with the very significant loss of earnings (almost six months’ income)
resulting for Mr Murray from his dismissal and the absence of any order for lost wages, will
mean that the safety culture Reliable Petroleum applies in its workplace will not be
undermined.
[109] To the extent that the issue of the risk of future adverse publicity for Reliable
Petroleum is relevant to this discretion, the Commission has made an objective assessment
about the conduct of Mr Murray and of the future risk associated with his reinstatement.
Further, the factors mentioned immediately above represent a significant practical sanction
which demonstrates that the conduct has not been condoned in any sense.
[110] An Order47 to give effect to this decision is being issued in conjunction with this
decision. The Order will come into force with a lead time of just over two weeks. This is
appropriate given the need for both parties to make the necessary arrangements and the
absence of an order for lost wages.
COMMISSIONER
Appearances:
Mr E Lawrie of the Transport Workers’ Union of Australia for Fraser Murray.
Mr M Kay with Ms E Gordon of Wallmans Lawyers, with permission, for Reliable Petroleum
Pty Ltd.
Hearing details:
2017
Adelaide
4 July.
Printed by authority of the Commonwealth Government Printer
Price code G, PR594286
WORK COMMISSION AUSTRALIA THE SEAL OF THE FAI
[2017] FWC 3552
31
1 Exhibit A2 as amended.
2 VZH Driver Induction Record – attachment KT2 to the Statement of Ms Kirsten Tyack – Exhibit R3.
3 The fixed speed camera is shortly after the commencement of the 60km per hour limit for the heavy vehicles.
4 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458
and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at
[36].
5 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.
6 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213
(17 March 2000) per Ross VP, Williams SDP, Hingley C; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo
Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 (11 May 2000) per Ross VP, Acton
SDP and Cribb C, and Rode v Burwood Mitsubishi AIRCFB Print R4471 (11 May 1999) per Ross VP, Polites SDP, Foggo C.
7 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v
McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 (8 October 2002), per Ross VP,
Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v
Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.
8 PR963023 (26 September 2005) (footnotes omitted).
9 PR928970 (19 March 2003) at [14].
10 PR963023 (26 September 2005) at [34]. See also B, C and D v Australian Postal Corporation T/A Australia Post [2013]
FWCFB 6191 at [48], [65] and [67].
11 [2009] AIRC 893 (16 October 2009).
12 Ibid at [54].
13 (1992) 41 IR 452 per Sheppard and Heerey JJ.
14 Ibid at p 460.
15 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
16 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
17 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
18 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
19 See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
20 Although relevant to the issue of notice, the definition of serious misconduct in the Fair Work Regulations 2009 includes
reference to conduct that represents serious and imminent risk to the reputation, viability or profitability of the employer’s
business (reg 1.07).
21 [2011] FWAFB 1166.
22 [1995] HCA 24.
23 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685]; Miller v University of New South Wales (2003) 132
FCR 147 at [13].
24 AIRC Print Q1625, per Ross VP, Polites SDP and Hoffman C, 5 June 1998.
25 [2014] FWCFB 1949.
26 Ibid at [49] to [51].
27 Ibid at [60].
28 [2014] FWCFB 7198.
29 Sound file of hearing at 11:51 am.
30 Ibid 11:56 am.
31 Ibid at 1:46 pm.
32 Ibid at 1:46 pm.
33 Ibid at 1:47 pm.
34 Ibid at 1:47 pm.
35 Ibid at 2:06 pm.
[2017] FWC 3552
32
36 Ibid at 2:12 pm.
37 Ibid at 2:14 pm.
38 Ibid at 10:20 am.
39 Ibid at 10:21 am.
40 Ibid at 10:27 am.
41 Ibid at 10:28 am.
42 Ibid at 10:49 am.
43 Ibid at 10:29 am.
44 Ibid at 10:26 am.
45 JBS Australia Pty Ltd v Mr Scott Challinger [2015] FWCFB 520 at [22].
46 s.381 of the FW Act.
47 PR594531.
