DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rodney Wilkins
v
Green Gables Express Pty Ltd
(U2018/13625)

Application for an unfair dismissal remedy.

Introduction

[1] Mr Rodney Wilkins has applied under s 394(1) of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of the termination of his employment with Green Gables Express Pty Ltd (Green Gables). Mr Wilkins commenced employment with Green Gables on 24 May 2016 as a truck driver and was notified of his dismissal on 13 December 2018 which took effect on 19 December 2018. The termination letter issued to Mr Wilkins on 13 December 2018 and signed by Rodney Davis, then Director of Green Gables, gave the reason for the dismissal as follows:

“Green Gables Express Pty Ltd has a zero tolerance of speeding and on several occasions the vehicle you were in control of on your run (BV05LH) was recorded speeding over the legal speed limit through the navigational monitoring system installed in the vehicle.

Management have spoken to you about speeding previously and as you have continued to drive over the legal speed limit your employment is terminated effective from the 19 December, 2018.”

[2] Mr Wilkins contends that his dismissal was unfair because he did not engage in the conduct alleged in the letter of termination and that he was denied procedural fairness. He seeks compensation as a remedy.

Procedural difficulties

[3] In his unfair dismissal remedy application lodged on 24 December 2018, Mr Wilkins identified two entities as his employer: “Central West Logistics” and Green Gables. Central West Logistics Pty Ltd (CWL) and Green Gables are both road transport businesses located at 91 Lone Pine Way in Orange, NSW. It is not clear whether they are related corporations but, as will be related later in this decision, there appears to be a degree of operational interchangeability between them.

[4] When Mr Wilkins’ application was the subject of conciliation conducted by a staff member of the Commission on 6 February 2019, the manager of CWL (Ms Victoria Burton) appeared and contended that Green Gables and not CWL had been Mr Wilkins’ employer. Green Gables did not appear, and accordingly no substantive conciliation occurred. The matter was then allocated to me.

[5] On 14 February 2019 I conducted a telephone directions hearing in the matter, which was attended by Mr Wilkins, Mr Wilkins’ legal representative, and Mr Davis on behalf of Green Gables. Directions for the filing of evidence and submissions and the hearing date and location were discussed at this hearing and a consensus position was reached. On 15 February 2019 I issued directions consistent with that position requiring Mr Wilkins to file and serve his evidence and submissions by 7 March 2019 and Green Gables to file and serve its evidence and submissions by 28 March 2019, with the hearing listed for 12 April 2019 in Bathurst. Mr Wilkins filed his evidence and submissions on 6 March 2019 in accordance with the directions, together with an application for permission for legal representation pursuant to s 596 of the FW Act.

[6] On 25 February 2019 Mr Wilkins applied for a Form F52 Order requiring production of documents to be sent to Green Gables. Because of the extreme breadth of the categories of documents sought, and after giving the parties an opportunity to comment, I issued the order for production in a narrower form on 6 March 2019. The order as issued required Green Gables to produce the following categories of documents:

1. All documents recording or concerning disciplinary proceedings or warnings in relation to the applicant Rodney Allan Wilkins.

2. All documents recording or concerning traffic infringements in relation to any vehicle owned or operated by the Respondent or driver in the employ of the Respondent in the period from 24 May 2016 to date.

3. All log books, records, notes, time sheets and other documents concerning or recording the driving performance of the Applicant in the period from 24 May 2016 to date.

4. All employment policies, procedures and induction manuals in existence as at or brought into existence after 24 May 2016.

5. The employment file in relation to Rodney Allan Wilkins.

[7] On 19 March 2019 Green Gables sent to the Commission an email which stated (omitting formal parts):

“As requested please find attached documents in relation to Schedule items 1, 2, 4, 5. Please note 4d contains further files in relation to general procedures and policies to be sent under separate email.

1a Letter from Operations Manager

1b Rodney Davis version of events

1c HR Version of events

1d Analysis undertaken

2a Traffic Infringements

4a Speeding Policy

4b Navman on dashboard of Rodney Wilkins vehicle

4c Navman Notice to employees

4e Notice Board in Drivers room

5a Employee Card

5b Rodney Wilkins Drivers licence

Could you please confirm you have received the documents.”

[8] The documents were attached to the email. Consistent with the terms of the covering email set out above, the documents were initially understood to be responsive to the order for production. However it has subsequently become apparent that the documents went beyond this, and in retrospect it appears that document 1c is in the nature of a submission about the merits of Mr Wilkins’ application and documents 1a and 1b are in the nature of witness statements concerning the application. On 22 March 2019 Green Gables sent a USB stick containing, in electronic form, the records requested in item 3 of the order for production. This material was in electronic form only, and it was not in a form that could fairly be characterised as accessible.

[9] Green Gables did not in terms file any evidence or submissions by 28 March 2019 pursuant to the directions made on 15 February 2019, nor did it apply for any extension of time to do so. On 4 April 2019, a week before the hearing was scheduled to take place, my Chambers contacted Green Gables and requested advice as to whether it intended to file any evidence or submissions. A response received the same day from Green Gables claimed that the directions had not been received, and requested an extension of time. Green Gables did not suggest that its evidence and submissions were to be found amongst the material filed in response to the order for production on 19 March 2019. Chambers records demonstrated that the directions had in fact been sent to the email address of Green Gables which it had previously provided (and in any event the content of the directions to be made had been discussed at the telephone directions on 14 February 2019). Nevertheless I allowed a short extension of time, until 9 April 2019, to allow for Green Gables to submit its materials. On 9 April 2019, my Chambers received two emails from Green Gables containing a completed Form F3 Employer response to unfair dismissal application, two short statements made by Mr Davis, a statutory declaration made by Geoffrey Dwight, a Green Gables manager, and some documents. One of the statements of Mr Davis was the same as document 1b filed on 19 March 2019, and the statutory declaration of Mr Dwight was similar in substance as document 1a.

[10] Noting that neither Mr Wilkins nor his legal representative was copied into those emails, my Chambers contacted Green Gables requesting email confirmation that its materials had been sent to the applicant. No such confirmation email was received. On the morning of 11 April 2019, the day before the hearing, an email was received from Mr Wilkins’s legal representative indicating that he had only been provided with the evidence and submissions of Green Gables that morning, and would accordingly object to reliance on the materials at the hearing.

[11] Later on 11 April 2019, Mr Davis emailed my chambers advising that he had attempted to serve Green Gables’ evidence by email but that it had “bounced back”. Mr Davis requested that, if the evidence was to be deemed inadmissible, Mr Dwight be allowed to attend as a witness. A response sent the same day from my chambers to Mr Davis stated that Mr Dwight’s attendance at the hearing would be permissible.

[12] The hearing took place as listed at Bathurst Courthouse on 12 April 2019. It was conducted as a determinative conference pursuant to s 398 of the FW Act (and not as a formal hearing pursuant to s 399), which meant there was considerable informality in the conduct of the matter. It was attended by Mr Wilkins and his legal representative, and by Mr Davis on behalf of Green Gables. Mr Dwight was not in attendance despite the approval of Mr Davis’ request concerning his attendance. Green Gables did not oppose the grant of permission to Mr Wilkins for legal representation, and I granted such permission because I was satisfied as to the jurisdictional prerequisite in s 596(2)(b) and I considered that the grant of such permission would be appropriate in all the circumstances.

[13] At the hearing Mr Wilkins gave evidence, as did Mr Davis. I admitted the material filed by Green Gables on 9 April 2019 into evidence over the objection of Mr Wilkins, including the statutory declaration of Mr Dwight. However further evidentiary difficulties emerged during the course of the hearing. The fundamental element of Green Gables’ case at the hearing was that, following an incident on 22 November 2018 in which Mr Wilkins hit a dead kangaroo while performing his delivery run resulting in damage to the vehicle he was driving, Mr Davis conducted a review of Mr Wilkins’ speed while driving on that occasion and on a range of earlier dates. This was able to be done because Mr Wilkins’ truck contained a GPS monitoring system which recorded the truck’s speed and location at approximately every second. Mr Davis’ conclusion was that Mr Wilkins had not only been speeding at the time he hit the dead kangaroo (at 98 kilometres per hour in an 80 kilometre per hour zone), but also found other instances of speeding on every day that he reviewed.

[14] Beyond the generalised allegation of speeding contained in the dismissal letter, the only date specified by Green Gables upon which any speeding occurred prior to the hearing was 22 November 2019, the date of the dead kangaroo incident. There was no specification of any earlier dates reviewed. The materials filed by Green Gables on 9 April 2018 did not contain any evidence concerning the road speed limits applicable at relevant locations beyond an assertion that the speed limit was 80 kilometres per hour at the location where the dead kangaroo incident occurred. Nor did they include any of the GPS records for 22 November 2018 or any earlier date reviewed by Mr Davis. It is not clear these records were even included in whole in the material produced on the USB stick on 22 March 2019. At the hearing, it proved impossible to locate the full (as distinct from a partial) GPS record for 22 November 2018 from the material produced.

[15] Mr Davis sought to remedy this at the hearing in two ways. First, after Mr Wilkins had closed his evidentiary case, he produced and tendered a document prepared by Ms Burton, the manager of CWL (and Ms Davis’ ex-wife). The document purported to be a record of the speed limits on the regular delivery route Mr Wilkins was required to drive each shift which Ms Burton was said to have prepared by driving the route herself. The document was produced for the first time at the hearing, and Ms Burton was not in attendance in court. I rejected the tender. My ruling at the hearing was as follows:

“I won’t admit the document for 2 reasons: first of all, it was prepared by a person who is not present in court and therefore cannot be tested and secondly because it has only been provided after the applicant has closed his case on the day of the hearing and was not provided in accordance with the directions which were intended to ensure that no party was caught by surprise in the proceedings.”

[16] Second, Mr Davis requested that he be able to show the Commission the actual GPS records for 22 November 2018 and the earlier days that he had reviewed. He explained that these were difficult if not impossible to reproduce in a hard copy format, and were best viewed by accessing the website of the company which operated the GPS equipment. I adjourned the hearing for a period to enable Mr Davis to retrieve his laptop from his car in order to be able to conduct a demonstration of this. This process was undertaken on the basis that Mr Davis agreed to show the records for 22 November 2018 and for a sample of four other dates to be selected by him. Mr Davis took advantage of this opportunity and conducted a demonstration at the bar table of the GPS information available on the website for 22 November 2018, 22 October 2018, 21 September 2018, 22 August 2018 and 20 July 2018. However I became concerned that this process would not give Mr Wilkins a fair opportunity to respond to the information conveyed by Mr Davis. Accordingly I indicated that I would direct Green Gables, after the conclusion of the hearing, to provide in hard copy the data he had shown to the Commission on his laptop, and then provide Mr Wilkins with an opportunity to make further submissions about this.

[17] The parties then made oral closing submissions to the extent they were able at that point. I became concerned that Green Gables, which was not legally represented, was not in a position due to unfamiliarity with the relevant provisions of the FW Act to properly address the issue of the amount of compensation which might be awarded under s 392 of the FW Act should Mr Wilkins’ dismissal be found to be unfair. I therefore indicated that I would provide the parties with information concerning the relevant requirements of s 392 and then give the parties a further opportunity to make submissions concerning the issue of compensation should it arise.

[18] Subsequent to the completion of the hearing, on 16 April 2019, I issued the following directions:

1. By 5.00pm 17 April 2019, Green Gables Express Pty Ltd shall send to the Commission and to Mr Wilkins and his legal representative:

(a) the complete raw data showing the speed travelled by the vehicle driven by Mr Wilkins during the whole of his shift for the following dates:

•  22/11/2018

•  22/10/2018

•  21/09/2018

•  22/08/2018

•  20/07/2018

(b) screenshots of the data shown to the Commission in respect of the above dates by Mr Davis at the conference on 12 April 2019.

The above may be provided in hard copy or electronic form.

2. Mr Wilkins shall submit his written closing submissions by 5.00pm 24 April 2019.

3. Green Gables Express Pty Ltd shall submit its written closing submissions in reply by 5.00pm 1 May 2019.

4. In the event that Mr Wilkins’ dismissal is determined to be unfair, it may be necessary for the Commission to assess an amount of monetary compensation. Section 392(2) requires the Commission to take into account a number of matters in determining compensation, and the parties are requested to address each of these in their closing submissions as relevant to this case. For the assistance of the parties, s 392(2) provides:

Criteria for deciding amounts

(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.

5. Additionally, the parties are requested to address s 392(3) in their submissions. Section 392(3) provides:

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.

[19] Green Gables filed and served the data required by the first direction above shortly afterwards on 16 April 2019. Mr Wilkins filed his further submissions on 23 April 2019. Green Gables filed its submissions in reply on 30 April 2019. Green Gables’ reply submissions contained a number of new assertions of fact.

The facts

The witnesses and the other evidence

[20] As earlier stated, both Mr Wilkins and Mr Davis gave evidence. Although most of the evidence they gave was broadly credible, in certain important matters of detail their evidence could not be accepted, as will later be explained. This has made it difficult to determine a number of the issues in this case. I have taken into account the statutory declaration of Mr Dwight but placed limited weight upon it because his non-attendance meant that his evidence could not be tested.

[21] There was no dispute that the GPS data records were what they purported to be, namely records of the location and speed of the truck driven by Mr Wilkins in the course of his duties. I have accordingly taken into account and given weight to these records.

The Green Gables business

[22] Green Gables is a small road freight business located, as earlier stated, in Orange. Mr Davis was the Director of the business whilst Mr Wilkins was employed there. Green Gables’ Form F3 stated it employed 25 workers at the time of Mr Wilkins’ dismissal, of which eight were school students who worked two four hour shifts per week on a four-week rotating roster and about three to five were engaged for weekend duties to supplement the wage paid to them by their respective primary employers. The composition of the workforce will be discussed later in the context of whether Green Gables is a small business as defined in s 23 of the FW Act.

Commencement of Mr Wilkins’ employment

[23] As previously stated, Green Gables employed Mr Wilkins as a truck driver commencing on 24 May 2016. Although Mr Wilkins apparently held a heavy vehicle driver’s licence at the time he commenced employment, he had been employed in manufacturing establishments since about 1992. Mr Wilkins’ duties were to deliver newspapers, magazines and general freight. His duties involved night work (starting in the late evening or very early morning), and he was usually required to make deliveries within Orange and then follow a delivery route to Millthorpe, Blayney, Carcoar, Mandurama, Cowra (and sometimes Grenfell), Canowindra and Cargo, and then return to Orange. He performed this work in a light truck, and after the first 12 months he was generally driving a 4 tonne Isuzu truck with the registration BV05LH (the Isuzu). At the time of his dismissal he was being paid $1,224.12 per week and was occasionally paid overtime if additional hours were worked.

[24] Mr Wilkins’ engagement was not attended with any formality. He first commenced work on the evening of the day he was interviewed for the job. He was not engaged pursuant to any written contract of employment. His induction and training consisted of spending the first three nights of his employment accompanying another driver on the usual route. He was not provided with any documents setting out any policies or procedures concerning speeding or anything else that he was required to comply with, nor was there any discussion about the business’ policies about speeding or any other matter. Mr Wilkins was not fined for committing any speeding offence while performing his work for Green Gables. He was last fined for speeding in his private vehicle on 3 January 2016 (and before that on 9 October 2006), and was also fined for disobeying a traffic light in 30 August 2017.

GPS system and prior warnings for speeding

[25] Most of Green Gables’ vehicles, including the Isuzu, have since 2017 or afterwards been fitted with a GPS monitoring system, known as a “Navman”, which reports the vehicle’s position and speed approximately every second whilst the vehicle is on the road. As earlier discussed, the GPS data is recorded and accessible via an internet portal. A photo of the interior of the Isuzu which was included in Green Gables’ evidentiary material shows that it was in the form of a small black box affixed to the inside of the windscreen, and it was explained that the box displayed a navigation map and the vehicle’s speed (in addition to the speed shown on the truck’s speedometer). In his oral evidence, Mr Wilkins said that the black box was not always affixed to the windscreen, and sometimes he found it lying on the floor of the Isuzu or in the glovebox. His evidence, which was not contradicted by Mr Davis and which I accept, was that he was never directly advised that the trucks were being fitted with GPS monitoring systems which could track their speed remotely. He must however have become aware of this, because his own evidence is that in about November 2016, Mr Davis told him that he had “a computer printout of you speeding” (which Mr Wilkins denied) and warned him not to do it again.

[26] Mr Davis gave evidence that “Mr Wilkins has been verbally warned on numerous occasions by myself personally” and that on each occasion Mr Wilkins had responded by saying that there was a discrepancy between the speed displayed on the GPS and the truck speedometer. Mr Davis also said that he had asked his manager Mr Dwight to speak to Mr Wilkins about speeding. Mr Dwight’s statutory declaration stated that he had “spoken to Rodney Wilkins on a few occasions on him speeding” to which the reply was “the truck was not able to do those speeds” and that “each time Rodney would blame the speedo calibration”. Mr Dwight went on to say that he also mentioned to Mr Wilkins to check the Navman with the speedometer to match them. Neither Mr Davis nor Mr Dwight identified the dates on which these verbal warnings were given, even approximately, and there was no record of these warnings.

[27] Mr Wilkins denied that he was warned on more than the one occasion he identified. He said that because of the hours he worked, he had only spoken with Mr Davis three or four times during the course of his employment. He also gave evidence that the issue of the calibration of the speedometer with the GPS arose in a different context. He said that approximately 12 months before the hearing he was pulled over by the police and warned for travelling 5 km/h over the speed limit. Mr Wilkins said that the truck speedometer did not show he was speeding at the time, and he brought this up with Geoffrey Dwight, who said that he would raise the matter with Rodney Davis.

[28] Ultimately the evidence before me is not such as to permit any firm conclusion about the number of times Mr Wilkins was warned about speeding. He was clearly warned at least once by Mr Davis (although this may have occurred after November 2016, since Mr Davis said that the Isuzu did not have the GPS system installed at that time). It is possible he was warned on a further occasion or occasions by Mr Davis and/or Mr Dwight, but that Mr Wilkins does not now remember this. However, having regard to the lack of any precision or particularity in his written and oral evidence, I consider that Mr Davis was exaggerating in saying that Mr Wilkins was warned “on numerous occasions”, and I place limited weight upon the content of the statutory declaration of Mr Dwight given that he did not attend the hearing and thus his evidence could not be tested. The following conclusions about the warning/warnings may also be stated:

(1) At no stage did Mr Davis or Mr Dwight show Mr Wilkins any of the data from the GPS system demonstrating that Mr Wilkins had been speeding. Mr Davis asserted at one point in his oral evidence that he had provided Mr Wilkins with printouts of the data, but this was not stated in his witness statements and I consider that it was an extemporisation lacking credibility.

(2) Mr Davis or Mr Dwight, on their own accounts, did not even identify in any warnings the speed which Mr Wilkins was said to have been doing at the relevant time or the extent this was over the speed limit.

(3) Neither Mr Davis nor Mr Dwight suggested that, in verbally warning Mr Wilkins, they told him that he would or might be terminated if he repeated this conduct. Mr Davis made the general statement that “As part of the process of rolling out the GPS, driver are warned of any speeding occurrences identified, and warned that continued speeding incidents will result in termination.” However he did not give evidence that he personally communicated this to Mr Wilkins, and there was no evidence of any general communication to drivers to that effect.

[29] I accept Mr Wilkins’ evidence concerning the circumstances in which he raised the issue of the calibration of the speedometer in the Isuzu. His admission that he was warned for a minor speeding infraction, in the context of an unfair dismissal case in which he was dismissed for alleged speeding, was an admission against interest which gives his evidence probative force. The evidence demonstrates that the speedometer in the truck was underestimating its actual speed. Mr Davis said that “Our workshop staff have driven and compared the variation between the 2 reading[s]”, but he did not give evidence that the problem had been rectified. His evidence is also consistent with an assertion of fact contained in Green Gables’ written reply submissions, namely that “…the Australian design rule for vehicle speedometers provides that they have a tolerance of a minimum of 4% and a maximum of 8% against the actual speed of the vehicle”.

Dead kangaroo incident and subsequent investigation

[30] As earlier stated, Mr Wilkin’s dismissal arose out of an incident which occurred on the morning of 22 November 2018 when he hit a dead kangaroo whilst performing his duties. His evidence was that this occurred on the last leg of his normal delivery route, on Cargo Road between Nashdale and Orange, at about 7.00am. Mr Wilkins said that he was driving the Isuzu behind a truck and two cars, and the kangaroo rolled out from under the car in front of him and went under the Isuzu. The car in front did not stop. Mr Wilkins’ evidence was that he stopped and checked the Isuzu for damage, but he could not see anything because it was only just coming into daylight and he did not have any light with him. He said the kangaroo was still on the road and looked like it had been dead for some time. He then proceeded to a petrol station in Orange, when he got under the Isuzu to check again for damage and found that the radiator was leaking. He reported this to Green Gables’ mechanic when he returned to the depot.

[31] Mr Wilkins denied that he was speeding when he hit the dead kangaroo. He said he was travelling between 80 and 90 km/h at the time, and the speed limit on Cargo Road was at various places 80 km/h, 90 km/h and 100km/h. The Isuzu was taken off the road for repairs, and Mr Wilkins was assigned another truck to perform his duties.

[32] A few days after the incident, on 27 November 2018, Mr Wilkins was required to fill out the “Driver Details” and “Incident Details” in an insurance claim form. He gave the completed form to Ms Burton, the director of CWL. This appears to have been because the “Vehicle Details” in the form identifies CWL, not Green Gables, as the registered owner of the Isuzu and the insured person under the policy. In the form, Mr Wilkins said simply that that he had “Run over kangaroo”, and that this had occurred on Cargo Road at “Orange/Nashdale” at 7.10 am on 22 November 2018 while the vehicle was moving at 80 km/h. Mr Wilkins had not been informed that the dead kangaroo incident was being investigated or that he faced any disciplinary action or indeed any difficulty at all at the time he filled out the insurance form.

[33] After Mr Davis became aware of the dead kangaroo incident, he examined the GPS records for the Isuzu for 22 November 2018 “to ascertain why we couldn’t avoid a dead kangaroo”. The conclusions he reached about the incident from the GPS data are made apparent from the following propositions contained in his witness statement:

•  On November 22 at 6.42am, Rodney Wilkins struck a kangaroo whilst travelling in a 80km/h zone.

•  The GPS revealed a travel speed of 98km/h in an 80km/h zone at the point of impact with the dead kangaroo.

•  The GPS also revealed that despite a massive impact that resulted in a damaged bull bar, crushed cabin grill and ruptured radiator, Rodney did not stop to check the condition of the truck.

[34] Mr Davis then undertook a wider review of the GPS records for the Isuzu, examining each day’s records for the previous 12 months. His conclusion was that Mr Wilkins had been speeding on every single day on his regular delivery route. He did not say anything in this witness statement about this further investigation, but the main propositions about it were contained in Green Gables’ Form F3 as follows:

•  The applicant displayed complete disregard for the road rules by regularly speeding.

•  The applicant passes 38 roadside speed signs along the regular route driven in the course of his employment but chose to regularly ignore these signs.

•  More extensive analysis of the GPS monitoring revealed the applicant was speeding by significant amounts on every shift.

•  GPS monitoring revealed speeding in excess of 30 kilometres.

•  GPS monitoring revealed speeding in 50km/h, 60 km/h, 80kn/h and 100km/h zones.

[35] Mr Wilkins was not informed that he was being investigated in respect of the dead kangaroo incident or for speeding generally, nor was he given any opportunity to respond to the results of the investigation.

The dismissal

[36] Mr Wilkins’ evidence, which was not contested, was that on 13 December 2018, upon returning to the depot after completing his normal run, he was approached by Ms Burton 1, who said to him: “Mr Davis isn’t happy with you”. Mr Wilkins asked “Why?”, upon which Ms Burton handed him the dismissal letter which has earlier been set out.

[37] Mr Wilkins also gave evidence that after he was given the dismissal letter, he was also given a copy of a document dated 21 November 2018 (the day before the dead kangaroo incident) which was addressed to all staff and signed by Mr Davis. The document read: “Please be advised that our company has zero tolerance of speeding. Any driver recorded speeding will be terminated.” Mr Wilkins hand wrote the date he received the document (13 December 2018) upon it. Mr Davis did not specifically contradict this evidence, but said that the document had been displayed at an earlier time. However, he was unable to identify any time at or means by which this had been done. I accept Mr Wilkins’ evidence in this respect, and reject that of Mr Davis.

[38] Mr Wilkins was required to work out the period of notice provided for in his termination letter. His duties over this period consisted of training the replacement driver for his run, which involved him sitting in the passenger seat supervising the driver.

Does the GPS data demonstrate speeding?

[39] A number of initial observations need to be made about the form and the content of the GPS data. First, the data is presentable in a number of forms. It may be presented in a hard-copy or spreadsheet format in which, either for every second or every two seconds, the system provides (relevantly) the speed of the vehicle and its position coordinates. Alternatively it may be presented online, either projected on a route map whereby the relevant data is disclosed when the pointer is placed at a particular location, or in the form of a chart which graphs the speed over the relevant time period. In these formats, Green Gables was unable to produce the data in hard copy except as a screen shot.

[40] Second, the GPS does not show the road speed limit at any location.

[41] Third, an examination of the data shows that the speeds recorded vary significantly second by second, even where it is clear that the vehicle is on the open road and travelling at speed. For example, on 22 November 2018, the date shows the Isuzu was travelling at 82.4 km/h at 6.17.54 am, 77.3km/h at 6.17.55am, 82.4 km/h at 6.17.56am, 79.7km/h at 6.17.57am, and 80.9km/h at 6.17.59am. Variations of up to 5 km/h from one second to the next are common.

[42] This leads me to conclude that the data should be analysed on the basis that, in order to ascertain whether there has been any “speeding” in the conventionally understood sense, it is necessary to identify a reasonable period over which the Isuzu has travelled over the speed limit. There is no evidence of the actual speed limits over the route, so the best that can be done is to apply the rule that non-urban roads which are not motorways have a default speed limit of 100km/h, while recognising that poorer quality or more difficult roads may be sign-posted at 90km/h or 80km/h. It is common ground that on no part of the route was there a speed limit higher than 100 km/h.

[43] In relation to 22 November 2018, the data does not of course disclose in terms the time or place of the collision with the dead kangaroo. Insofar as Mr Davis’ witness statement asserts that the collision occurred at 6.42am while Mr Wilkins was travelling at 98km/h in an 80km/h zone, the data shows that this is incorrect. For the reason earlier stated, Mr Davis could not have gleaned from the data that the speed limit at the location where the truck was at that time was 80km/h, but in any event the speed recorded at around this time was well under 80km/h. Mr Davis explained in his oral evidence that he considered this was the time the collision must have occurred because at an earlier time, the Isuzu was travelling at in excess of 90km/h before slowing down to around 40km/h and then speeding up again. However this could have occurred for any number of reasons. At the time identified by Mr Davis, the Isuzu was not at the location where Mr Wilkins said the collision with the dead kangaroo occurred, namely between Nashdale and Orange; rather it was some distance before Nashdale. In short, there is no substantive reason to conclude that Mr Davis correctly identified the time and place at which the collision occurred.

[44] The period during which the Isuzu was travelling from the Nashdale locality to the outskirts of Orange can be identified, using the location coordinates in the data, as about 6.43.58am to 6.47.16am. The data shows that there was a period of about 30 seconds where the Isuzu’s speed exceeded 90km/h, and otherwise it was generally well under 90km/h. It again cannot be determined whether there was speeding without knowing the speed limit for each part of the road over this section. Mr Davis asserted that the speed limit on this part of the road was also 80km/h, but this was contradicted by Mr Wilkins who drove the route for over two years, and no proper basis for Mr Davis’ assertion was established.

[45] However the data does expose two difficulties with Mr Wilkins’ evidence about the dead kangaroo incident. The first, which is less serious, is that Mr Wilkins’ time estimate of the incident as being at 7.00am or later is inaccurate. The second is that it is clear that, contrary to his evidence, Mr Wilkins did not stop the vehicle immediately after impact to check for damage (although the data supports his assertion that he later stopped at a petrol station in Orange where he said he checked again). This is significant because in its Form F3 (but not in its letter of dismissal) Green Gables stated that the reasons for dismissal included that, following the impact with the dead kangaroo, Mr Wilkins “failed to exercise due diligence by stopping to establish the damage to the vehicle” and “failed to exercise due diligence by stopping to ensure it was safe to drive the vehicle”.

[46] At other times during Mr Wilkins’ shift on 22 November 2018, there are instances where it is clear that, for periods exceeding ten seconds, he exceeded the maximum possible speed limit of 100km/h

•  From 3.10.12am to 3.10.49am (a period of 37 seconds), the Isuzu exceeded 100km/h and reached 106.6km/h at one point.

•  From 3.14.50am to 3.16.10am (a period of 1 minute and 20 seconds), the Isuzu exceeded 100km/h and reached 106.6km/h at one point.

•  From 3.28.47am to 3.30.38am (a period of 1 minute and 55 seconds) the Isuzu exceeded 100km/h and reached 108.3km/h at a couple of points.

•  From 31.31.18am to 3.31.32am (a period of 14 seconds) the Isuzu exceeded 100km/h.

•  From 4.02.10am to 4.03.39am (a period of 1 minute and 29 seconds) the Isuzu exceeded 100km/h and reached between 105km/h and 109.5km/h at a couple of points.

•  From 4.05.55am to 4.06.30am (a period of 35 seconds) the Isuzu exceeded 100km/h and specifically exceeded 105km/h from 4.06.03am to 4.06.21am (a period of 18 seconds), reaching up to 113km/h at a couple of points.

•  From 5.39.50am to 5.40.30am (a period of 40 seconds) the Isuzu exceeded 100km/h and reached 106.1km/h at one point and 105km/h at a couple of points.

•  From 5.41.32am to 5.41.49am (a period of 47 seconds) the Isuzu exceeded 100km/h and reached 109.4km/h at one point and 110km/h at a couple of points.

•  From 5.41.58am to 5.42.10am (a period of 12 seconds) the Isuzu exceeded 100km/h and reached 108.7km/h at one point.

•  From 5.43.19am to 5.43.36am (a period of 17 seconds) the Isuzu exceeded 100km/h and reached 109.4km/h at one point and 110.5km/h at another point.

•  From 3.15.58am to 3.16.10am (a period of 12 seconds), the Isuzu exceeded 100km/h and reached 106.6km/h at one point.

•  From 3.28.47am to 3.29.42am (a period of 55 seconds) the Isuzu exceeded 100km/h and reached 108.3km/h at a couple of points.

[47] The GPS data for the other sample dates selected by Mr Davis for analysis at the hearing - 20 July, 22 August, 21 September and 22 October 2018 - show a broadly similar pattern. There are occasional instances where the speed was in excess of 100km/h to a significant degree and where the speeding persisted for somewhat longer periods. The worst examples are:

•  From 3.37.47am to 3.39.37am (a period of 1 minute and 50 seconds) on 20 July 2018 the Isuzu exceeded 100km/h and reached between 105km/h and 113km/h at a number of points.

•  From 3.44.45am to 3.47.05am (a period of 2 minutes and 20 seconds) on 22 August 2019 the Isuzu exceeded 100km/h and reached between 105km/h and 112km/h at a couple of points.

•  From 5.02.02am to 5.03.45am (a period of 1 minute and 43 seconds) on 22 August the Isuzu exceeded 100km/h and reached between 105km/h and 113km/h at a number of points.

•  From 4.06.18am to 4.09.59am (a period of 3 minutes and 41 seconds) on 21 September 2018 the Isuzu exceeded 100km/h and reached between 105km/h and 113km/h at a substantial number of points.

•  From 4.47.47am to 4.49.36am (a period of 1 minute and 49 seconds) on 21 September 2018 the Isuzu exceeded 100km/h and reached between 105km/h and 116km/h at a substantial number of points.

•  From 5.40.52am to 5.43.22am (a period of 1 minute and 30 seconds) on 21 September 2018 the Isuzu exceeded 100km/h and reached between 105km/h and 112km/h at a couple of points.

•  From 6.04.52am to 6.06.18am (a period of 1 minute and 28 seconds) on 21 September 2018 the Isuzu exceeded 100km/h and reached between 105km/h and 115km/h at a number of points.

•  From 3.39.22am to 3.41.42am (a period of 2 minutes and 40 seconds) on 22 October 2018 the Isuzu exceeded 100km/h and reached between 105km/h and 108km/h at a couple of points.

•  From 3.57.56am to 4.02.50am (a period of 4 minutes and 54 seconds) on 22 October 2018 the Isuzu exceeded 100km/h and reached between 105km/h and 107km/h at a couple of points.

•  From 5.26.27am to 5.27.55am (a period of 1 minute and 28 seconds) on 22 October 2018 the Isuzu exceeded 100km/h and reached between 105km/h and 110km/h at a couple of points.

[48] While the GPS records show the Isuzu speeding in the strict sense, a number of qualifications must be borne in mind:

(1) The periods of speeding demonstrated are generally brief, and the occasions on which there were more sustained periods of speeding are few in number.

(2) Overwhelmingly, where the speed exceeded 100km/h it only exceeded it by less than 5 km/h, and often it was only less than 2 km/h. Having regard to the difficulty earlier identified with the speedometer in the Isuzu, as well as the speedometer design rule tolerance of 4-8%, it is more than possible that the Isuzu’s speedometer did not show that he was exceeding 100km/h.

(3) The occasions on which he was recorded as travelling more than 5km/h over 100km/h were generally only for one second at a time, and at most for only a few seconds.

[49] Of course the above analysis assumes a speed limit of 100km/h. The position would be quite different if the speed limit was lower than this. However, beyond saying that it can be inferred from the data that Mr Wilkins was driving on the open road in the instances described above, it is not possible to tell what the speed limits actually were.

[50] It is apparent from the GPS data that, when the speed recorded for the Isuzu reduces to much lower speeds, Mr Wilkins was driving in an urban area with lower speed limits. This can be confirmed by mapping the coordinates recorded in the GPS data. For example, on 22 November 2018 it is apparent that after about 6.46.16am Mr Wilkins entered the town of Orange on the western side, passed through the town, stopped at a petrol station, and eventually returned to Green Gables’ depot on the south-eastern edge of the town. The data shows his speed was generally in the range from 50km/h to 60km/h, and reached a maximum of 63.8km/h for one second. As earlier stated, the default urban speed limit is 50km/h, but many urban roads are signposted at 60km/h or more. It is impossible therefore without mapping the precise route which the Isuzu took and obtaining evidence concerning the speed limits along that route to conclude that there was any evidence of speeding. An examination of other instances in the data where Mr Wilkins was evidently driving through a township along his route does not permit any different conclusion to be reached.

[51] In conclusion, the GPS data does demonstrate that, in a strict sense, the Isuzu was on occasions driven at speeds which exceeded the road speed limit. However there are clearly a number of mitigating factors that will need to be taken into account in due course.

Events since the dismissal

[52] Mr Wilkins’ gave evidence (on my invitation) concerning the personal and financial effects of his dismissal. He said that he had been searching for alternative employment but without success. His evidence was that he has mainly been seeking driving jobs, but employers have generally told him that he is too old (he is 59). No particulars of Mr Wilkins’ efforts to find alternative employment were provided. Green Gables asserted that there was a shortage of truck drivers in the Orange area and a number of vacancies. I accept that Mr Wilkins has made some effort to mitigate the effects of his dismissal and find other employment, but the evidence is not such as to permit me to conclude that he has made all reasonable endeavours in this respect.

[53] Mr Wilkins also gave evidence that he has earnt no income since his dismissal, has not received any social security payments, and has been living off his savings. I accept this evidence, which was not the subject of any contradiction.

[54] In Green Gables’ submissions in reply, it asserted that since the dismissal the insurance claim on the Isuzu had been rejected by the insurer on the basis that the Isuzu was exceeding the 80km/h speed limit by 18km/h at the time of impact, consequently “costing the company $11,680”. These assertions are problematic in two respects. First, the insurer’s information concerning the Isuzu’s speed at the time of contact with the dead kangaroo must, I infer, have come from Mr Davis, since it repeats exactly his analysis of what occurred from the GPS data. That analysis was, for the reasons earlier explained, incorrect. Mr Davis must therefore bear substantial responsibility for the refusal of the insurance claim. Second, I have earlier noted that the Isuzu was actually owned by CWL, not Green Gables. Assuming it is correct that the repairs cost $11,860 (which is hard to reconcile with the fact that Mr Wilkins had no difficulty in driving the truck back to the depot after the collision with the dead kangaroo), the basis upon which this became a cost to Green Gables rather than CWL is obscure.

Preliminary matters

[55] Section 396 of the FW Act requires that four specified matters must be decided before the merits of Mr Wilkins’ application may be considered. I will deal with each of these in turn.

Section 396(a) – time for making application

[56] Mr Wilkins’ application was made within the 21-day period required by s 394(2).

Section 396(b) – whether person protected from unfair dismissal

[57] I am satisfied that Mr Wilkins is a person protected from unfair dismissal within the meaning of s 382. He was employed by the respondent for a period of in excess of two years. His work as a truck driver is covered by the Road Transport and Distribution Award 2010 and additionally he earned less than the high income threshold.

Section 396(c) – whether dismissal consistent with Small Business Fair Dismissal Code

[58] In its Form F3 Green Gables objected to Mr Wilkins’ application on the ground that it was a small business employer and had complied with the Small Business Fair Dismissal Code (Code). However in response to question 1.7 of the standard form, which requires the employer to identify how many employees the employer had at the time of the dismissal including regular and systematic casual employees, Green Gables gave the following response:

“1. Green Gables Express employed 25 workers at the time of dismissal.

2 - Eight employees are school students who work 2 four hour shifts per week on a 4 week rotating roster. IE each team of 2 work 8 hours every 4 weeks.

3 - 5 employees are engaged for weekend duties to supplement their wage paid to them by their respective primary employers.”

[59] I note that elsewhere in the Form F3 Green Gables, in connection with its contention that it was a small business employer, Green Gables asserted (underlining added):

“1 - Green Gables Express currently employs 24 staff.

2 - This number exceeds the 15 employees threshold by 9.

4 – (sic) A further 4 employees have full time employment with other employers and perform weekend duties to supplement their full time wage.”

[60] If the above is to be taken literally, it adds to 29 employees, not 25. However I will proceed on the assumption that the number is 25. I tested with Mr Davis at the hearing whether any casual employees in that number were employed on a regular and systematic basis. His evidence suggested that the 3-5 employees who performed work on weekends as secondary employment were not engaged on any systematic basis. However it is clear that the eight school student employees are engaged regularly and systematically, since they work according to a fixed roster. I am satisfied therefore that Green Gables was not a small business employer within the meaning of s 23 of the FW Act at the time of Mr Wilkins’ dismissal, and accordingly the issue of compliance with the Code does not arise.

Section 396(d) – whether dismissal was a genuine redundancy

[61] Green Gables did not contend, nor is there any basis to conclude, that the dismissal of Mr Wilkins was a case of genuine redundancy within the meaning of s 389.

Was Mr Wilkins unfairly dismissed?

[62] Section 385 of the FW Act provides that a person has been unfairly dismissed if:

(a) the person has been dismissed;

(b) the dismissal was harsh, unjust or unreasonable;

(c) the dismissal was not consistent with the Code; and

(d) the dismissal was not a case of genuine redundancy.

[63] There was no dispute, and I find, that Mr Wilkins was dismissed by Green Gables. I have already dealt with s 385(c) and (d): the Code did not apply to the dismissal, and the dismissal not a case of genuine redundancy. Accordingly it only remains necessary to deal with s 385(b) – that is, whether the dismissal was unfair.

Was the dismissal harsh, unjust or unreasonable?

[64] In considering this question of whether the dismissal was harsh, unjust or unreasonable, s 387 of the FW Act requires the Commission to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in relation to Mr Wilkins in turn below.

Section 387(a) - Whether there was a valid reason for the dismissal related to the person’s capacity or conduct

[65] Green Gables has, in substance, contended that there were three valid reasons for Mr Wilkins’ dismissal: speeding on 22 November 2018 at the time of the collision with the dead kangaroo, failure to stop and check the condition of the Isuzu after the collision with the dead kangaroo on 22 November 2018, and repeated speeding on that day and other days.

[66] I do not consider that there was a valid reason for dismissal arising from the dead kangaroo incident on 22 November 2018. The evidence does not permit me to be satisfied that Mr Wilkins was speeding at the time he hit the dead kangaroo. As earlier explained, Mr Davis’ analysis of the incident was based upon an incorrect assumption about the time and therefore the location of the accident. The incident in fact occurred on the road between the locality of Nashdale and the outskirts of Orange. The Isuzu was, except for a very short period, travelling under 90 km/h on this part of the trip, and it has not been established to my satisfaction that this was ever in excess of the speed limit on that part of the road.

[67] I have found that, contrary to his evidence, Mr Wilkins did not stop to check the condition of the Isuzu immediately after colliding with the dead kangaroo. However I do not consider that this necessarily constituted any failure to “exercise due diligence” as contended by Green Gables. The evidence does not suggest that the collision caused damage to the Isuzu that was immediately obvious or affected its driveability. There was no evidence as to whether it was practicable or safe to pull over the truck on the Nashdale-Orange road to check its condition. Mr Wilkins did check the vehicle shortly afterwards when he stopped at a petrol station. I do not consider that this constituted a valid reason for dismissal.

[68] However I am satisfied that Mr Wilkins was speeding on other occasions, and that this constituted a valid reason for his dismissal. It is clear that speeding is a significant safety issue in the road transport industry. Vehicle collision is the cause of almost a third of all work-related fatalities according to Safe Work Australia, and driving at excessive speed is undoubtedly a significant contributor to this. Additionally, driving in excess of the speed limit is unlawful. Although it is apparent that Green Gables did not have any properly-articulated policy concerning speeding during Mr Wilkins’ employment, Mr Wilkins properly conceded in his evidence that there did not need to be such a policy for him to know that he should not speed.

[69] The lack of evidence concerning the speed limits on Mr Wilkins’ regular delivery route means that it cannot be established that he was speeding with the regularity asserted by Green Gables. However it can be identified from the GPS data, as earlier set out, that Mr Wilkins did on some occasions drive in excess of the maximum possible speed limit of 100 km/h, and on a smaller number of occasions did so by a significant amount and/or for periods exceeding a minute. In doing so Mr Wilkins placed himself and other road users at risk. Additionally, although the Heavy Vehicle National Law did not apply because the Isuzu was less than 4.5 tonnes GVM, Green Gables was nonetheless exposed to liability under workplace health and safety laws in the event of any accident and injury.

Section 387(b) and (c) - Whether the person was notified of that reason and was given an opportunity to respond to any reason related to the capacity or conduct of the person

[70] Mr Wilkins was not notified of the reason for his dismissal prior to being informed of his dismissal, and accordingly was not given an opportunity to respond. He was denied procedural fairness.

Section 387(d) - Whether there was any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[71] There were no discussions as such relating to the dismissal, so the issue of a support person does not arise.

Section 387(e) - If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[72] Insofar as Mr Wilkins’ dismissal related to “unsatisfactory performance” in the form of speeding, he was given a verbal warning about this on at least one occasion prior to his dismissal.

Section 387(f) and (g) - The degree to which the size of the employer’s enterprise or 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 

[73] Although it is not a small business within the meaning of s 23 of the FW Act, Green Gables is relatively small in size and lacks any dedicated human resource specialists or expertise. This undoubtedly had an impact on the procedure adopted to effect Mr Wilkins’ dismissal. However I do not consider that this provides a justification for the failure simply to ask Mr Wilkins for his explanation of the dead kangaroo incident, and his response to instances of alleged speeding said to have been disclosed by the GPS data, prior to dismissing him.

Section 387(h) - Any other matters that the Commission considers relevant 

[74] I consider the following matters to be relevant:

(1) I have earlier identified the limited instances in which I am satisfied that Mr Wilkins was exceeding the speed limit. The occasions when the maximum speed limit of 100km/h was exceeded were fairly isolated instances and for the most part relatively short in duration. Because the instances of alleged speeding were never identified at any time prior to the hearing, Mr Wilkins never had any opportunity to explain the circumstances in which this might have occurred. It is possible, for example, that they occurred on a downhill stretch of road where it is more difficult to control the speed of the vehicle, or when an overtaking lane was being used to overtake a vehicle. The evidence did not establish that Mr Wilkins engaged in sustained speeding.

(2) Most of the speeding identified from the GPS data fell within the calibration tolerance level of 4-8% for the speedometer on the Isuzu. As earlier identified, Mr Wilkins did raise a concern about the calibration of the speedometer, but nothing appears to have been done about it. This occurred after he was pulled over by police and warned for exceeding the speed limit by 5km/h in circumstances where the speedometer did not show that he was speeding. Accordingly there is a real possibility that in respect of most of the instances of speeding recorded by the GPS device, the speedometer did not show that he was speeding. The Navman device did at all times separately show the Isuzu’s speed as measured by the GPS, but it has not been established that Mr Wilkins was clearly advised that he should prefer the speed shown on the Navman rather than that show on the speedometer.

(3) The reason for dismissal given in the dismissal letter said that Green Gables had zero tolerance for speeding. However, as earlier stated, I am satisfied that Green Gables did not inform employees (and certainly not Mr Wilkins) that it had a zero tolerance policy concerning speeding until after it had informed him of his dismissal. Green Gables own assertion that it had warned Mr Wilkins about speeding on a number of earlier occasions is directly inconsistent with the existence of a zero tolerance policy. To the extent that Mr Wilkins was warned about speeding, he was never told that any future recurrence would result in dismissal.

(4) It is apparent that the dead kangaroo incident formed part of the reason for Mr Wilkins’ dismissal (as well as motivating the wider examination of the GPS speed data for the Isuzu). However I have found that the evidence does not demonstrate that anything about this incident constituted a valid reason for dismissal.

(5) Apart from one verbal warning about speeding (and perhaps more), Mr Wilkins had an unblemished disciplinary record, and there is nothing in the evidence to suggest that otherwise he was other than a diligent and conscientious employee.

(6) Mr Wilkins’ dismissal has resulted in him being unemployed and living off his savings.

Conclusion

[75] Taking into account the matters stated above, I conclude that Mr Wilkins’ dismissal was harsh and unjust. It was harsh because I consider that the penalty of dismissal was, on balance, disproportionate to the conduct which I have found to have occurred which constituted a valid reason for the dismissal. The proven speeding was occasional and for brief periods, in circumstances where Mr Wilkins’ was never warned that Green Gables’ had adopted a zero tolerance policy concerning speeding. Mr Wilkins was otherwise a satisfactory employee, and the dismissal has caused him economic loss in the form of extended unemployment.

[76] The dismissal was unjust because Mr Wilkins was denied procedural fairness. This was not merely a technical failure, but one of substance. The instances of proven speeding may, as earlier explained, have had a reasonable explanation which Mr Davis may ultimately have accepted. The dead kangaroo incident was one of the matters motivating the dismissal, and Mr Wilkins was denied the chance to demonstrate that Mr Davis’ analysis of the time and place of this incident, and the applicable speed limit, was wrong. Mr Wilkins may not have been dismissed at all if he had been able to demonstrate that he was not speeding at the time of the collision with the dead kangaroo. Mr Wilkins was also denied the opportunity to explain, if confirmation was necessary, the he was not aware of any zero tolerance policy concerning speeding.

[77] I therefore find that Mr Wilkins’ dismissal was unfair.

Remedy

[78] I do not consider that reinstatement is an appropriate remedy. Mr Wilkins does not wish to return to employment with Green Gables, and I am concerned that the attitude which Mr Davis displayed towards Mr Wilkins at the hearing would mean that a viable working relationship in the context of a reasonably small employer could not be re-established.

[79] I consider that an award of monetary compensation to Mr Wilkins would be appropriate given that his unfair dismissal has caused him to be unemployed for an extended period. It is therefore necessary for an assessment to be made as to the amount of compensation which should be ordered. In assessing compensation, it is necessary under s 392(2) of the FW Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a)-(g) of the subsection, and it is also necessary to consider the other relevant requirements of s 392. My assessment as to the quantum of compensation will be based on the methodology articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. 2

Section 392(2)(c) - Remuneration that would have been received if the dismissal had not occurred

[80] If Mr Wilkins had not been dismissed, and a reasonable approach had been taken towards the issue of speeding, I consider it likely that Mr Wilkins’ employment would have continued for at least another 12 months. As stated above, Mr Wilkins’ weekly gross remuneration at the time of dismissal was $1,224.12. He would therefore have earned (at least) $63,654.24 (52 x $1,224.12) had he not been dismissed.

Section 392(2)(e) and (f) - Remuneration earned and income reasonably likely to be earned

[81] Mr Wilkins has not earned any other income from the date his employment ended to the date of the hearing. However I consider that there is a reasonable prospect that Mr Wilkins will obtain at least three months employment at the rate of his former employment during the 12 month period he would have been employed had he not been dismissed. I will deduct $15,913.56 (13 x $1,224.12) on this score, leaving $47,740.68.

Section 292(2)(g) - Other relevant matters

[82] I consider that there should be a reduction for contingencies to account for the possibility that Mr Wilkins’ employment may have ended within the 12 months’ estimated future employment for some other reason. I will deduct 15 per cent of income over the 12 months on this account, amounting to $9,548.14 (15% of $63,654.24). This leaves $38,192.54. In relation to taxation, compensation should be determined as a gross amount and it should be left to Mr Wilkins to pay any amount of taxation required by law.

Section 392(2)(a) – Viability

[83] Green Gables submitted that it is a small transport operator which operates on low industry margins and has limited financial capacity to cope with unexpected expenses, and that a majority of Green Gables’ revenue is directed at the payment of wages and operational expenses. While this did not rise above the level of assertion, I accept that a compensation sum of significant size may pose a risk to the viability of a business of relatively small size such as Green Gables. Accordingly I will reduce the compensation amount by 20 per cent on this score, leaving $30,554.00 (80% of $38,192.54).

Section 392(2)(b) - Length of service

[84] Mr Wilkins’ period of service does not justify any adjustment to the amount of compensation that might otherwise be ordered.

Section 392(2)(d) - Mitigation efforts

[85] As earlier stated, although I accept that Mr Wilkins has made some effort to obtain alternative employment, I am not satisfied that he has made all reasonable endeavours to mitigate his loss by seeking alternative employment. I will deduct 5% on this account, leaving $29,026.30 (95% of $30,554.00).

Section 392(3)

[86] Mr Wilkins’ misconduct in engaging in occasional speeding clearly contributed to a very substantial degree to the decision to dismiss him. I consider that a 40 per cent reduction on this score is appropriate. The amount is therefore reduced to $17,415.80 (60% of $29,026.30).

Section 392(4) - No component for shock, distress, humiliation or other analogous hurt

[87] I confirm that the compensation amount assessed contains no component for any shock, distress, humiliation or other analogous hurt suffered by Mr Wilkins as a result of the manner of his dismissal.

Section 392(5) - Compensation cap

[88] The amount of compensation proposed is below the compensation cap of $31,827.12 (26 x $1,224.12).

Section 393 – Instalments

[89] I consider that the compensation should be paid in four equal instalments, each 28 days apart, in order to mitigate any potential cashflow effects on Green Gables’ relatively small business.

Conclusion

[90] I consider that a total compensation amount of $17,415.80, less applicable tax, would be appropriate in all the circumstances. The first instalment shall be payable in 14 days, and each remaining instalments will be payable in 28-day intervals. An order to give effect to this conclusion will be issued in conjunction with this decision.

VICE PRESIDENT

Appearances:

A Edwards on behalf of Rodney Wilkins.

R Davis for Green Gables Pty Ltd.

Hearing details:

2019, Bathurst:

12 April.

Printed by authority of the Commonwealth Government Printer

<PR707603>

 1   Erroneously identified in Mr Wilkins’ witness statement as “Vicky Bennett”.

 2    [2013] FWCFB 431, 229 IR 6