DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Zirilli
v
StarTrack Express Pty Limited
(U2018/13480)

Application for an unfair dismissal remedy – valid reason – poor performance not misconduct – no warnings given – dismissal unfair – compensation ordered.

[1] On 21 December 2018, Steven Zirilli (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of his employment by StarTrack Express Pty Limited (the respondent) on 5 December 2018, for misconduct.

[2] The application was heard in Sydney on 22 May 2019. The applicant was represented by L Saunders, counsel and the respondent by N Furlan, counsel.

[3] The following witnesses gave evidence and were cross examined:

•  The applicant himself;

•  Kevin Crisp (a driver employed by the respondent);

•  Troy King (the respondent’s State Operations Manager NSW/ACT); and

•  Ian Wood (the respondent’s Senior Supervisor).

The Evidence

[4] To the extent that the facts were contested, the following includes my findings on the balance of probabilities.

[5] The applicant was employed by the respondent from 7 March 2011 until his dismissal on 5 December 2018. He had performed the role of Bulk Fleet Supervisor since 1 December 2014 and was based at the Minchinbury depot.

[6] During 2016 and 2017 the applicant was asked to perform additional duties on a relief basis: reviewing drivers’ run sheets and signing them off as compliant or non-compliant with requirements (Checker duties). At the time the task was primarily the responsibility of the Bulk Fleet Clerk, Ian Wood. When Mr Wood was on leave the task was distributed to the supervisors, one of whom was the applicant. 1

[7] I found Mr Wood to be an impressive witness and I accept his evidence that he explained to the applicant - in detail - the process for auditing the run sheets. This occurred the first time that the applicant was given the relief Checker duties, shortly before Mr Wood took annual leave in early 2016. 2 The process involved checking 13 points on a driver’s run sheet to ensure that they had been accurately completed.

[8] As part of this training, the week before Mr Wood commenced annual leave, the applicant performed the Checker function and Mr Wood reviewed the applicant’s work. Mr Wood was satisfied that the applicant understood the process and was capable of carrying out the task. 3

[9] Mr Wood also explained to the applicant the disciplinary action that he should take if he identified a non-compliant run sheet. 4 I accept Mr Wood’s evidence that he provided further refresher training to the applicant the next time he reprised the relief Checker role.5

[10] In addition to the training he received from Mr Wood, the applicant received instructions on how to perform the task in the form of emails sent to him by his manager, Mr Osborn. Attached to these emails were slides entitled ‘How to achieve 100% Compliance’ and ‘Drivers Daily Run Sheet’. 6 These set out the 13 elements of a run sheet that a Checker must audit. It is not to his credit that the applicant doesn’t recall opening or reading these emails.

[11] The driver run sheets are used by the respondent to ensure compliance with its internal policies regarding safety and fatigue management, and with Chain of Responsibility (COR) laws. 7 It is important to note that, as the Minchinbury bulk fleet did not generally do deliveries more than 100 kilometres away, the completion of the work diary (also referred to as timeline) is not a requirement under the Heavy Vehicle National law. It was nevertheless the respondent’s policy that drivers of all vehicles 12 tonnes and over kept a work diary.⁸

[12] The respondent sent an email to the applicant on 23 May 2018 requiring an increase in focus on COR compliance levels. 9 The applicant understood that COR compliance was something that the respondent took very seriously.10

[13] On the evidence before me I do not accept the applicant’s contention that he was trained to sign off driver run sheets as compliant as long as the rest breaks section was correct – even if there were errors elsewhere in the document. 11 I do accept that the applicant thought that checking that the rest breaks were correct was more important than checking whether the hours recorded in the timeline were totalled correctly. He nevertheless signed off as compliant a number of run sheets where the drivers failed to take the correct breaks.12

[14] There is a dispute as to when the Checker duties were assigned permanently to the applicant; Mr Wood says this occurred in around November 2017 13 whereas the applicant says that James Brown took over the duties in November 2017 and he did not have full time responsibility for it until May 2018.14 Mr King, the respondent’s State Operations Manager, believed that the applicant started doing the role full time in March 2018.15 I note that the applicant accepts that the run sheets in Annexure 17 to Exhibit 10 appear to bear his signature.16 Some of these are dated March and April 2018. I find that the applicant commenced doing the Checker duties on an ongoing basis in March 2018.

[15] The applicant had to check 70-80 run sheets for compliance, by 11 am each morning. Apart from the addition of the new duties the applicant’s job did not change at all. 17

[16] In October 2018 the respondent carried out an audit of driver run sheets and work diaries at a number of facilities in New South Wales, including Minchinbury. Ten run sheets for five random dates over a five month period were checked for accuracy and compliance: 50 run sheets in total. The respondent found 14 were non-compliant. A further group of 28 run sheets were then selected for review, targeting those drivers who were identified as non-compliant in the initial sample. Of these 25 were found to be non-compliant. All of the 39 sheets in question had incorrectly been signed off by the applicant as compliant. 18

[17] The respondent had meetings with the applicant on 2 November 2018, 5 November 2018, and 7 November 2018 during which the applicant was shown four examples of run sheets he was said to have incorrectly signed off as compliant. Initially, in cross examination, Mr King said that he had showed the applicant more than four run sheets from the audit. 19 However, after he had reviewed the respondent’s letter of 15 November 201820 – which states that the applicant was provided with four examples of incorrectly completed driver run sheets – Mr King agreed that these were what had been provided to the applicant.21 I am satisfied that the applicant was not shown the rest of the 39 run sheets said to have been identified during the audit as incorrectly checked by him.

[18] Mr King was the only person who stated that any of the four run sheets shown to the applicant involved non-compliance with rest breaks (as opposed to incorrect totalling of hours) – and he appeared to resile from this position in cross examination. The four run sheets were not tendered as evidence in these proceedings. I am satisfied on the evidence before me that the errors identified in the four examples shown to the applicant pertained only to incorrect total solo and total rest hours. 22

[19] After a driver completed the 24 hour timeline to record their work and break times, the driver was obliged also to calculate the totals of each and record them in the box next to the timeline. If the calculation was not done, or was done incorrectly, although the respondent would have the important safety information they required (recorded on the timeline), the run sheet would be incorrectly completed. This is because it was a breach of the respondent’s policy to not calculate, or incorrectly calculate, the totals. 23

[20] The applicant was given an opportunity to provide evidence that he had taken action in relation to drivers who were non-compliant on their run sheets. In cross examination the applicant said:

‘I did hand in the written warnings to them and the first meeting I said “you get anything with a written warnings (sic)” – I did present this to them and they were – they didn’t want it. They wanted – said in the last three months. And I said I can’t present the last three months because there was no – there was no warnings. 24

… So as far as you were concerned they were compliant, there was nothing to talk to them about? --- Yes, in the three months, yes.” 25

I accept that the applicant did not produce evidence of disciplinary action he had taken against drivers in the three months prior to November 2018 because he had believed, perhaps mistakenly, that all the run sheets he had checked during that period were compliant.

[21] The day after the disciplinary meeting of 7 November 2018 with Michael Takacs and Troy King the applicant sent them following email:

‘Dear Michael/Troy

After yesterday meeting I left feeling very distressed and upset and

disappointment and the affect it has taken on my wife and family is enormous

After 8 years of loyal employment, I’ve always had the best intentions for the company and always did my best, making this very hard to comprehend, given that you have indicated your intentions for my dismissal. I need to provide detail to my legal counsel, can you please provide me with,

1. Can company confirm I was suspended with full pay

2. Details of the process

•  Clarification of the allegation to me in writing

•  When will the meeting take place next

Thank you for your co-operation in this matter, I’m looking forward to hearing from you soon’ 26

[22] The email suggests that the applicant understood, by this date, that the respondent intended to terminate his employment.

[23] The respondent sent the applicant a letter on the 15 November 2018, setting out the allegations in writing and stating that ‘[i]n view of the above, StarTrack has formed a preliminary view that your conduct amounts to misconduct, justifying the termination of your employment.’

[24] The applicant responded to the allegations by letter dated 17 November 2018. His response was summarised by the respondent in subsequent correspondence which is reproduced below. The following paragraph from the applicant’s response was not included in the respondent’s summary:

‘I take these allegations seriously and note that it is clear that I haven’t been provided proper training. As such, I request a copy of the policies and procedures in relation to these matters so that I can familiarise myself with them and proper training which will ensure that I am properly signing of [sic] drivers run sheets.’ 27

[25] The applicant also sent the respondent a personal statement which concluded:

‘I am ready and willing to work with StarTrack to resolve these matters so that I can continue to contribute to the success of StarTrack.’ 28

[26] There was a further exchange of correspondence between the parties which of little consequence to these proceedings.

[27] In deciding to terminate the applicant’s employment Mr King said that the applicant:

‘showed no real understanding of the importance of the issues raised with him, and gave no indication that he was prepared to work with StarTrack to ensure compliance going forward. As I have said, his focus during this [sic] interviews was on blaming others.’ 29

[28] Mr King said that he took into account the applicant’s length of service and the fact that he did not have a formal warning on his file, but ultimately decided to terminate the applicant:

‘given the very serious safety concerns that led to the disciplinary process undertaken with respect to Mr Zirilli and his lack of understanding of the seriousness of those concerns, and his unwillingness to take responsibility and commit to proper process.’ 30

[29] On 5 December 2018 the applicant received a termination letter, signed by Brian Osborn, that relevantly stated:

‘I refer to the show cause letter issued to you on 15 November 2018 and to the subsequent meeting with you on 19 November 2018 to discuss your response. … The meeting was held to provide you with an opportunity to respond to the proposed termination of your employment for the reasons set out in the show cause letter. In summary the letter referred to the following:

•  You failed to correctly perform your role as a Supervisor in that you signed off on driver run sheets which did not meet with the mandatory requirements under Chain of Responsibility and did not take any action against drivers incorrectly completing the forms.

You were provided with 4 examples of incorrectly completed driver run sheets that you signed off as compliant. These were for:

- Monday 9 April 2018 Run, No 571 – Incorrect Total Solo and total Rest hours were entered incorrectly

- Friday 22 June 2018 Run, No 272 – Nil total Solo hours and Nil Total Rest hours had not been entered

- Friday 22 June 2018 Run No. 878 – Incorrect Total Solo and Total Rest hours were entered incorrectly

- Friday 26 October 2018 Run 877 – Incorrect Total Solo and Total Rest hours were entered incorrectly

Before making a final decision on your continued employment you were given the opportunity to provide StarTrack with any additional information as to why your employment should not be terminated. Whilst not intended to be a detailed record of your response, in summary you responded as follows:

•  I note that the task of ‘signing driver run sheets’ was given to me as an extra duty by Mr Ian Wood. Upon being put in charge of this task Mr Ian Wood the previous employee who held this task was promoted. Mr Wood gave me training on how to check the run sheets’ so that they are compliant or non-compliant.

•  During the training that I received, Mr Wood advised me that the most important part of the ‘run sheet’ is the drivers ‘rest breaks’ during their working day. Mr Wood advised me that if the ‘rest breaks’ section is correct then then [sic] the driver is compliant.

•  Furthermore, Mr Wood told me that if the total ‘rest’ and ‘solo’ hours do not add up or are not filled out “this isn’t a problem, just leave it, as the most important part is the required rest breaks”.

•  The training that I received from Mr Wood I believed was the proper training and as such at all times I complied with what I though [sic] was required from me.

•  Furthermore, I have been in charge of this task for approximately 6 months at no stage did StarTrack offer training in relation to the correct procedure for filling out run sheets that I should familiarise myself with. As stated above, at all times I thought I was doing the correct thing.

•  I confirm that I’m aware of the Chain of Responsibility Laws in particular, the work and rest hours therefore, each time I ticked a ‘run sheet’ I ensured that the driver was compliant with their rest hours. I ensured that the driver was complying with the safety hazards for the road transport and, other road users.

Steven, your conduct is in direct violation of company policies and procedures and has failed to meet the appropriate standards of workplace behaviour. Specifically you have breached the following clauses from Our Ethics and our Minimum Standards:

Our Ethics

•  perform all work safely [refer Our Ethics, page 6, Health, safety & work environment, ethical standard 1.1a)]

•  comply with the laws, regulations and codes relevant to your work [refer Our Ethics, page 7, Compliance with laws & regulations, ethical standard 2.1a)]

•  comply with the laws, regulations and codes relevant to your work [refer Our Ethics, page 7, Compliance with laws & regulations, ethical standard 2.1a)]

•  comply with all our policies and procedures, and all laws, industrial awards and agreements that apply to your job [refer Our Ethics, page 8, Work practices & performance, General requirements, ethical standard 3.1.1a)]

•  ensure that anything you state about yourself or your colleagues is true and correct [refer Our Ethics, page8, Work practices & performance, General requirements, ethical standard 3.1.1b)]

•  consistently perform work to the expected standard or higher [refer Our Ethics, page 8, Work practices & performance, General requirements, ethical standard 3.1.1e)]

•  exercise due care and diligence in your work [refer Our Ethics, page 8, Work practices & performance, General requirements, ethical standard 3.1.1f)]

•  ensure that all records, declarations or statements you prepare are factual, accurate, complete, honest, objective and timely [refer Our Ethics, page 20, Corporate records, ethical standard 7.1a)]

•  only authorise records that are accurate and complete [refer Our Ethics, page 20, Corporate records, ethical standard 7.1b)]

Unacceptable behaviour includes but is not limited to:

•  any activity or work that might be hazardous to yours or others [refer Our Ethics, page 6, Health, safety & work environment, unacceptable behaviour 1.2a)]

•  ignoring or failing to act in response to a work health and safety issue that has come to your attention (whether raised by another person or identified by you) [refer Our Ethics, page 6, Health, safety & work environment, unacceptable behaviour 1.2f)]

•  reckless acts or omissions that cause, or could cause, damage or harm, or adversely affect the employment relations [refer Our Ethics, page 8, Work practices & performance, General requirements, unacceptable behaviour 3.1.2 b)]

Minimum Standards:

Workplace Safety – Safety is one of our shared values and it is the most important part of everyone’s job every day.

•  Safety is everybody’s responsibility, and we are all held accountable.

•  We never put ourselves or others at risk.

After consideration of all the available information and having allowed for all factors, I found your response and explanation as insufficient to address my concerns therefore I made the decision to terminate your employment with StarTrack with notice due to misconduct effective close of business 5 December 2018.

You will receive a payment in lieu of your notice period, which along with any outstanding entitlements will be processed and paid at the earliest opportunity. …’ 31

[30] Subsequent to the applicant’s dismissal, in 2019, another audit was conducted by Mr Wood (the second audit); this time of two random dates in the months of March 2018, April 2018 and June 2018. This audit identified a very large number of failures by the applicant with regard to his checking of run sheets: including instances where drivers had failed to take the correct breaks as well as a wide range of other issues. 32 A sample of eighteen incorrectly completed run sheets from this audit were attached to Mr Wood’s statement of 30 April 2019, as was a summary table of the non-compliance identified in the second audit.33 The applicant had not seen, or been spoken to, about these prior to these proceedings.

[31] After examining the 18 run sheets attached to Mr Wood’s statement, the applicant accepted that he had made mistakes and failed to mark as non-compliant run sheets where drivers had worked for too long without taking a break. He said:

‘If I had been told before my dismissal that I was making too many mistakes, I would have taken this on board. I would have checked each sheet even more carefully, with a particular focus on these issues. I might have asked for time to do this, or for someone else to help me and share the load.’ 34

The legislation

[32] It is not in dispute that the applicant is a person protected from unfair dismissal. I am satisfied that he is so protected.

[33] In considering whether the applicant’s dismissal was harsh, unjust or unreasonable I am required to take into account the factors outlined in s.387 of the FW Act.

[34] Section 387 of the FW Act provides:

‘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 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.’

[35] I will deal with each of these factors in turn.

Valid reason: s.387(a)

[36] I am satisfied that the respondent had a valid reason for dismissing the applicant because of his repeated failure to identify non-compliant run sheets and take appropriate disciplinary action against drivers. The respondent is to be commended for its diligence in not only adhering to the minimum legislative safety obligations, but also enforcing policies that go beyond these. The respondent was entitled to expect the applicant to follow all its policies, and to sanction him for his failures.

Notification of the reason and opportunity to respond: s.387(b) and (c)

[37] Before his dismissal, the applicant was notified of the respondent’s concerns regarding his failures to identify non-compliant run sheets; however only run sheets with incorrect total hours were brought to his attention. The applicant was not given an opportunity, prior to his dismissal, to respond to the more serious allegations.

Support person: s.387(d)

[38] The applicant was not unreasonably refused access to a support person.

Warnings about unsatisfactory performance: s.387(e)

[39] The applicant’s dismissal was incorrectly treated as a matter of misconduct rather than poor performance. The failures in question were not wilful or deliberate. I am satisfied that they were in the nature of mistakes and were presumably the result of a lack of due diligence, rather than any decision on the part of the applicant not to perform this part of his role.

[40] The applicant was not – but should have been - issued with a warning about his unsatisfactory performance. To the extent that he has previously been counselled (about unrelated matters) he had shown himself to be responsive to coaching. 35 The applicant indicated a willingness to undertake further training and to work to try and resolve the issues with his performance. He was not afforded that opportunity.

The impact of the size of the employer’s enterprise and any human resource management specialists: ss.387(f) and (g)

[41] The respondent is a large business and could reasonably have been expected to have followed a rigorous procedure in effecting the applicant’s dismissal.

Other relevant matters: s.387(h)

[42] The applicant had a lengthy and largely unblemished record with the respondent.

Was the dismissal harsh, unjust or unreasonable?

[43] Balancing all of the above considerations, I am satisfied that the applicant’s dismissal was harsh and unreasonable. The respondent should not have dismissed him without giving him a warning and a chance to improve.

Remedy

[44] The applicant has not sought reinstatement and I am satisfied that an order for payment of compensation is appropriate in all the circumstances of the case.

[45] Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation.

Viability of employer’s enterprise: s.392(2)(a)

[46] There was no evidence that any order would affect the viability of the respondent.

Length of service: s.392(2)(b)

[47] The applicant had a relatively lengthy period of service: nearly eight years.

Remuneration that would have been received: s.392(2)(c)

[48] The Applicant’s remuneration with the respondent was $88,963.47 per annum or $1,710.84 per week, plus superannuation.

[49] I have some sympathy with the respondent’s submission that any compensation should be limited by the fact that the applicant had been failing to carry out his function properly for some time1, though this needs to be balanced against the evidence that he had previously responded well to coaching.

[50] If he had not been dismissed it is likely that the applicant would have remained working for the respondent for a further year and would have received $88,963.47.

Mitigating efforts: s.392(2)(d)

[51] The applicant was able to mitigate his loss by securing alternative employment. He was unemployed for approximately 10 weeks. He was, however, paid in lieu of notice, which I infer was equivalent to four weeks’ pay.

Remuneration earned or likely to be earned: s.392(2)(e) and (f)

[52] The applicant now earns $80,000 per annum ($1,538.46 per week). Taking into account the 10 weeks in which he had no income and the payment of four weeks’ pay in lieu of notice, the applicant’s remuneration during the 12 months of anticipated further employment would likely be $71,458.68.

Other matters: s.392(2)(g)

[53] I do not consider there are any other relevant matters to take into consideration.

Misconduct: s.392(3)

[54] I have found there was no misconduct by the applicant that contributed to the dismissal.

Shock, distress etc.: s.392(4)

[55] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[56] The amount of compensation I will order does not exceed the compensation cap.

Conclusion

[57] The applicant was unfairly dismissed. I order that the respondent pay the applicant the amount of $17,504.79, less applicable taxation, plus superannuation. An order to this effect will issue concurrently with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

L Saunders, counsel with S Skoric, solicitor, for Steven Zirilli.

N Furlan, counsel, with L Tehan for StarTrack Express Pty Ltd

Hearing details:

Sydney.

2019.

May 22.

Printed by authority of the Commonwealth Government Printer

<PR708602>

 1   Exhibit 10 [48].

 2   Ibid [48]-[50]; Transcript PN361.

 3   Exhibit 10 [54]; Transcript PN337.

 4   Exhibit 10 [30], [57]-[59].

 5   Ibid [55].

 6   Ibid Annexure 10; Exhibit 7; Exhibit 8.

 7   Exhibit 10 [15].

8 Exhibit 1 [30]-[31]; Exhibit 4 [7]; Exhibit 5 [2]; Transcript PN712-4.

 9   Exhibit 6.

 10   Transcript PN307.

 11   Exhibit 1 [10].

 12   Exhibit 3 [3] and [5]; Exhibit 10 Annexure 17.

 13   Exhibit 10 [24].

 14   Exhibit 2 [2].

 15   Transcript PN786.

 16   Exhibit 3 [1].

 17   Transcript PN910, PN1117, PN1133-5.

 18   Exhibit 9 [26]-[27]; Exhibit 10 [73]-[74]; Transcript PN1146.

 19   Transcript PN836.

 20   Exhibit 1 Annexure SZ-04.

 21   Transcript PN852-5.

 22   Transcript PN855-8; Exhibit 9 Annexure 1.

 23   Transcript PN976-85.

 24   Transcript PN433.

 25   Transcript PN475.

 26   Exhibit 1 Annexure SZ-02.

 27   Exhibit 1 Annexure SZ-05; Exhibit 9 Annexure 1.

 28   Exhibit 9 Annexure 1.

 29   Exhibit 9 [50](d).

 30   Ibid [52].

 31   Exhibit 1 Annexure SZ-09.

 32   Exhibit 10 [76]-[77].

 33   Exhibit 10 Annexures 17 and 18.

 34   Exhibit 3 [7].

 35   Exhibit 9 [23].