Note: An appeal pursuant to s.604 (C2010/3238) was lodged against this decision - refer to Full Bench decision dated 1 June 2010 [[2010] FWAFB 4082] for result of appeal.
[2009] FWA 1406 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
DEPUTY PRESIDENT HAMILTON |
MELBOURNE, 2 MARCH 2010 |
Summary Dismissal of Employee – Alleged Harsh, Unjust Unreasonable Termination - Employer Directions to Employee – Directions Breached – Alleged Lack of Consistency of Employer Policies – Alleged Reasonable Belief about Non-Compliance – Claimed Safety Objections to Compliance – Application Dismissed
[1] On 17 July 2009 Mr. Wayne Darvell lodged an application under section 394 of the Fair Work Act 2009 on the grounds that the termination of his employment on 7 July 2009 was harsh, unjust or unreasonable. Conciliation on 26 August 2009 was unsuccessful and Mr. Darvell elected to proceed to arbitration.
[2] Mr.A.Weinmann of counsel appeared for Mr.Darvell, and Mr.C.O’Grady of counsel for Australia Post. Given the nature of the proceedings, with issues of fact and law in dispute, many witnesses who were required for cross examination, and having regard to the views of the parties, I decided pursuant to s.399 to conduct the proceedings by way of a hearing 1.
[3] Evidence was given by:
Mr. Wayne Darvell
Ms. Joan Doyle
Mr. Brendan Henley
Mr. Neil Stevens
Mr. Andrew Rawlins
Ms. Rose Genovese
Mr. Peter Druce
Mr. John Campbell
Mr. Christian McDougall
Mr. Geoffrey Elsegood
Mr. Michael Bailey
Mr. David Humble
Mr. Michael Kelly
Summary Dismissal of Mr.Darvell on 7 July 2009
[4] Mr.Darvell’s employment was summarily terminated in a letter dated 7 July 2009. The letter provided:
‘I refer to the recent Discipline Inquiry conducted by Mr.David Humble Melbourne Metropolitan Hub Network, into your recent breaches of the Australia Post Code of Ethics.
The alleged breaches that were the subject of the Discipline Inquiry were that you failed to:
• Be aware of, and comply with, Australia Post policies and all applicable laws, industrial awards and agreements governing your business conduct, and seeking clarification if needed;
• Ensure, to the best of your knowledge, that all declarations or statements relating to Australia post are true and correct;
• Consistently perform work to an agreed standard or higher
• Exercise due care in your work;
• Perform all work safely;
• Use safe work practices and safety protection equipment as trained and instructed.
At our meeting on Friday 3 July 2009 you acknowledged receipt of Mr.Humble’s Inquiry report containing the notification he had found all breaches proven and recommended that you be dismissed from your employment with Australia Post.
I am satisfied that the Disciplinary Inquiry was thorough and fair and that you were given ample opportunity to respond to the allegations made against you.
Having considered the Inquiry report and the content of our discussion of Friday 3 July 2009 my decision is that you:
1. Be summarily dismissed from your employment with Australia Post.
The above recommendation will be effective immediately as of Tuesday 7 July 2009.’
Submissions and Background
[5] Australia Post submitted that it terminated Mr.Darvell for failing to comply with directions from the Respondent, having regard to Mr. Darvell’s poor work history, and other matters.
[6] Mr. Darvell submitted that it was not misconduct, that he was treated in a harsher manner than other employees accused of similar conduct, that his role as the Health & Safety Representative and Deputy Shop-Steward was a factor in Australia Post’s decision to terminate, and that Australia Post failed to undertake adequate consultation with the union before changes to work practices took effect.
[7] Mr. Darvell was employed as a Postal Transport Officer with Australia Post. His duties included truck driving and from time to time loading and unloading his truck. He had worked for Australia Post for almost 20 years and was at the time of dismissal an Occupational Health & Safety Representative and Deputy-Shop Steward.
[8] Mr.Darvell was required to comply with the directions given by his employer. Two directions particularly relevant to the dismissal of Mr. Darvell, in the view of Australia Post, include:
(a) a direction that he comply with his statutory obligations as to the weight labelling of goods collected by him from customers for transport to mail depots;
(b) a direction that in off-peak times he load and unload his vehicle at the Melbourne Parcel Facility.
[9] Australia Post submitted that Mr. Darvell’s employment was terminated in part because he did not comply with these directions. It submitted that Mr. Darvell demonstrated a lack of candour prior and during the investigation process as part of the disciplinary inquiry that preceded the termination of his employment.
[10] It is agreed that Mr.Darvell refused to unload his vehicle at the Melbourne Parcel Facility on 2 June 2009, and 18 June 2009, in breach of Australia Post directions, and picked up unlabelled ULDs on 2 June 2009. However, it is not agreed that these breaches justified Australia Post terminating Mr.Darvell’s employment, or summary dismissal.
[11] I have had regard to all the submissions and evidence before me.
Direction Given to Mr.Darvell Regarding the Loading and Unloading of Trucks During the Off-Peak Period
[12] On 4 May 2009 Australia Post advised a Joint Consultative Committee meeting of a change to the practice of loading and unloading trucks with changes to take effect 1 June 2009. Mr.McDougall advised the meeting that Post was proposing to have truck drivers use forklifts to load and unload vehicles at the Melbourne Parcel Facility during the off-peak period between 3 am and 4 pm. He presented the meeting with a Staff Information Bulletin headed ‘Drivers Loading/Unloading’, dated 4 May 2009, and read out the contents. He said that Mr.Henley from the CEPU raised concerns about consultation, and Mr.Darvell raised some concerns 2.
[13] The Staff Information Bulletin 3 of 4 May 2009 said that a review had been conducted and that:
‘Accordingly, a recommendation has been made for drivers arriving at MPF [Melbourne Parcel Facility] to load/unload their own vehicles between the hours of 3:00 am and 4:00 pm. Outside of these hours, drivers will only be required to load/unload their vehicles in the absence of a designated Dock forklift operator.’
[14] Mr.Rawlins gave evidence about the method by which Australia Post communicates new policies, procedures and work practices to its employees. He said that firstly Australia Post issues ‘Staff Information Bulletins’:
‘Drivers are regularly reminded of Australia Post policies and procedures. One of the ways in which this is done is through the issuing of Staff Information Bulletins (SIBs) to drivers. An SIB is a paper document that is posted on the Staff Information Bulletin Board, which is located in the driver’s rest room/lunch room. SIBs may also be attached to a driver’s duty board for the day. SIBs outline changes to policies and procedures, or reinforce current policies and procedures’ 4
[15] He said that where a significant change is proposed, Australia Post then follows the Staff Information Bulletin up by convening meetings with employees, known as ‘Toolbox meetings’:
‘Where a Staff Information Bulletin contains a significant change, a Toolbox is arranged. A Toolbox is a meeting with drivers and a Supervisor or Manager. The person conducting the Toolbox ranges from the shift Supervisor up to the Facility Manager. The person conducting the Toolbox reads the Staff Information Bulletin to the drivers, and explains it to them. The drivers then have an opportunity to ask any questions or express concerns. An attendance record of the meeting is made, and drivers are required to sign next to their name. Toolbox meetings are normally held during overtime pre or post shift. Where a driver does not attend the Toolbox they are normally Toolboxed by a supervisor one on one.’ 5
[16] Mr.Rawlins said that Mr.Darvell attended a Toolbox meeting about the 4 May 2009 Staff Information Bulletin, but that he declined to sign the attendance form 6. In cross-examination, Mr. Darvell stated ‘he ‘honestly didn’t recall that Staff Information Bulletin’7. He later said that he declined to sign ‘because I was only there for half the meeting. I didn’t get all the information’8. He was later asked during cross-examination, ‘So you knew as at 7 May that from now on Australia Post was telling you that you were required to load and unload at the MPF?’ to which Mr. Darvell replied, ‘I’ve already admitted that, yes.’9
[17] Between the period 25 May-29 May Mr. Darvell attended an Occupational Health & Safety training course given his role at the company as an Occupational Health & Safety Representative. 10
[18] On 1 June 2009 the proposed new procedures came into effect in relation to the loading an unloading of trucks and the requirement for customers to provide weight on all unit loading devices.
[19] However, the CEPU advised employees not to undertake unsafe work related to the new practices 11. Mr.Darvell received an undated union notice on 1 June 2009 headed ‘Ban of Unsafe Work’, which said that:
‘Management has informed the union that they will force drivers to load and unload trucks at the Melbourne Parcel Facility… IT IS OUR ADVICE THAT MEMBERS SHOULD NOT UNDERTAKE THIS UNSAFE WORK’ 12
[20] Mr.Darvell later received an amended and again undated union notice which contained similar advice 13.
[21] On 1 June 2009 Mr. Darvell met with Mr. Neil Stevens, Australia Post Facility Manager, Dandenong Transport Facility. Mr. Stevens provided Mr. Darvell with a copy of a Staff Information Bulletin in relation to the loading and unloading of trucks at the Melbourne Transport Facility 14, which was dated 29 May 2009 and ‘Urgent Notice – Drivers Loading & Unloading – MPF’15. The Bulletin stated:
‘The change to loading/unloading procedures at MPF due to commence on 1 June 2009 were first outlined to all drivers and the CEPU on 4 May 2009 and have been toolboxed to staff on 4 May 2009 and again on 26 May 2009 (MTF).
At all times during the consultation process an Issues Register has been provided at each facility to allow all staff including drivers, dock staff and supervisors, the opportunity to list issues and/or concerns.
Accordingly we expect that all drivers will continue to perform all duties in accordance with the terms and conditions of their employment, Australia Post operational requirements and their supervisor’s directives. We will be closely monitoring all activities relating to loading and unloading at Melbourne Parcels Facility and all other corporate facilities to ensure all staff undertake all activities as required and that high safety standards are maintained at all times.
All drivers are again reminded that any action taken by individuals to ban or refuse to undertake duties as prescribed in their work level standards – including the loading and unloading of vehicles at MPF – will be viewed to constitute unlawful industrial action and may be subjected to further action being taken under the Australia Post Employee Counselling and Disciplinary Policy.’
[22] Mr.Stevens gave evidence about his discussion with Mr.Darvell:
‘Mr. Darvell advised me that he had been given two different directions regarding the process of loading and unloading at MPF, the Australia Post direction and that of the union. I asked Mr. Darvell if he was referring to the union flier dated 29 May 2009, and gave him a copy of the flier. Mr. Darvell then flicked a copy of the union flier I had given him at me. 16
Mr. Darvell responded that he was going to follow the union flyer, not Australia Post’s SIB. I then said to Mr. Darvell words to the effect of “I give you a clear direction that you are to follow the Australia Post Staff Information Bulletin dated 29 May 2009.” Mr. Darvell repeated that he would follow the union flier, and would not load or unload his vehicle at MPF. 17
I warned Mr.Darvell with words to the effect of “If you follow that [the union ban] you will be treated under the Employee Counselling and Discipline Process.” Mr. Darvell then left my office and commenced his shift.’ 18
[23] I am satisfied that the direction that Mr.Darvell load and unload trucks during off peak periods was clearly communicated to Mr.Darvell by Australia Post, and that Mr.Darvell understood the direction.
Direction Given to Mr.Darvell About Collecting Unit Load Devices Without Weight Labels
[24] On 19 May 2009 a Staff Information Bulletin 19 was issued which provided:
‘All Driving Staff should note that under CoR Legislation and Australia Post policies and procedures, all ULD’s collected from customer premises should now have a label and weight clearly displayed on the ULD when presented for dispatch.
As of Monday June 1 2009, any ULDs presented without weight labels or weights affixed on the product label should not, under any circumstance be collected.’
On 20 May 2009 a Toolbox meeting took place in relation to a Staff Information Bulletin on the topic of label and weights on Unit Load Devices. Mr.Darvell signed the Toolbox Attendance Records form, stating that he had attended the meeting 20.
[25] I am satisfied that Mr.Darvell received the direction from Australia Post that no ULDs be collected without weights or labels affixed, and that he understood the direction.
2 June 2009 Actions Taken by Mr.Darvell in Breach of Australia Post Directions – Refusal to Unload Vehicle, and Picking Up Unlabelled ULD
[26] On 2 June 2009 Mr.Darvell refused to load and unload his truck as required under the company’s new procedures.
[27] Ms.Genovese also gave evidence that:
‘Mr.Darvell got out of his vehicle and walked across the docks. Mr.Darvell did not use the walkway. I was on a forklift clearing the docks at the time, near doorway number 5 of the Melbourne Parcel Facility.’ 21
[28] Mr.Darvell denied that the walkways were clearly marked, and did not deny that he walked across a number of loading bays 22, and said similar things in his witness statement.
[29] I accept the evidence of Ms.Genovese and am satisfied that Mr.Darvell did not use the designated walkway.
[30] Mr.Darvell also visited one of the company’s customers, Chance Trading, and was only able to provide the customer with seven unit loading devices and not the 20 requested. None of these unit loading devices had a marking indicating their weights. Mr. Darvell gave the following evidence:
‘I questioned the customer about the lack of weights on the ULDs. He said words to the effect of “I don’t have any scales and I have been doing this for 18 months…I ordered 20 cages. What am I supposed to do?...I believed that even though four of the ULDs may have been over weight, I could transport them safely because I had an empty truck which had a capacity for 28 ULDs. I was confident that the total weight loaded in the truck would not exceed the weight limits required by law. I had to make a judgment call on whether to upset the customer by refusing the ULDs, or to load the ULDs.’ 23
Discussion Between Mr.Darvell and Australia Post About 2 June Breaches of Direction
[31] Mr.Darvell met later that day with Mr. Andrew Rawlins, Australia Post Nightshift Supervisor who worked at the Dandenong Transport Facility. Mr.Rawlins 24 gave evidence that Mr. Darvell said that he:
(a) ‘has been actively trying to educate this customer’;
(b) ‘has had overweight and unlabelled ULDs from them previously’;
(c) ‘was not Australia Post’s policeman’;
(d) ‘was looking after the customer’;
(e) ‘suspected several ULDs loaded on his truck [on June 2] to be overweight’; &
(f) ‘would continue to look after the customer by loading unlabelled ULDs’
[32] Under cross-examination, Mr.Darvell was asked whether he had said these things. He said that he did not recall meeting with Mr.Rawlins and might have said all these things except for the words in paragraph (f):
‘I may have, but I don’t recall the meeting with the gentleman.
Why do you say you’d never say number (f) as I understand your evidence you knew that Australia Post had told you that under no circumstances you were supposed to pick up these ULDs without labels on before you picked them up and you went ahead and did it because you were torn between your obligations to the customer and your direction from Australia Post? --- That’s right
So why do you say you’d never say number (f)? --- Because I’m not trying to be aggravating to my management at all and I was drawn between the two, well, say wrongs, because at a previous time in my history with the Post I got in trouble by just a verbal talking to with the previous manager and hence the reason why I had reservations about letting a customer down.’ 25
[33] Mr. Rawlins gave further evidence in relation to the discussion:
‘My conversation with Mr. Darvell concluded with him stating that he was following the union directive on this issue that staff should refuse to load or unload and use the OH&S Act as the reasoning behind the refusal. He then stated that he was itching for me to put him on a code of conduct. As he was leaving he further stated that it was not his job to unload or load it was “theirs”.’ 26
[34] In relation to the discussion, Mr. Darvell gave the following evidence:
‘I do not recall Andrew Rawlins talking to me on 2 June about the unlabelled ULDs Staff information Bulletin. If it was at about 6.40pm on 2 June, as alleged by Australia Post it would have been as I was leaving work and I do not recall the conversation.’ 27
[35] There is some inconsistency between Mr.Rawlins’ evidence and for example an earlier email. The CEPU submitted that this discredits his evidence. However, it is not unusual for there to be some degree of discrepancy between various versions of events, and the CEPU submission places too much weight on such alleged inconsistencies rather than looking at the totality of the evidence. I found Mr.Rawlins to be a credible witness who endeavoured to answer questions accurately. Mr.Darvell was not such a witness. I am satisfied that Mr.Darvell made the statements described by Mr.Rawlins in paragraphs (a) to (f) above. Mr.Darvell accepted that he might have said all except paragraph (f), and I found Mr.Darvell’s claims about paragraph (f) to be unlikely. A statement of that sort would not be inconsistent with the pattern of conduct of Mr.Darvell revealed by the evidence.
[36] On 4 June 2009, Mr. Darvell met with Mr. Michael Bailey, Australia Post Occupation Health Safety and Environment Adviser, in relation to what had occurred on 2 June 2009. Mr. Bailey gave the following evidence:
‘...I then asked Mr Darvell why he had not loaded or unloaded his vehicle on 2 June 2009. He replied it was because he was having the ULDs checked. I then asked him if there was any reason why he could not have unloaded the truck and checked the weights. Mr Darvell replied that he did not see his role as a policeman. Mr Darvell told me “I can’t knock back stuff from a customer. I am just a bloody truck driver. But what I can do is make my load safe”.’ 28
[37] Mr.Bailey said that Mr. Darvell refused to discuss the matter further with Mr. Bailey on the grounds that he did not think the occasion presented the appropriate forum insisting any discussion should take place at an Occupational Health & Safety Committee meeting. Mr.Bailey told Mr. Darvell that it was appropriate to discuss the issue now. 29 Mr.Darvell’s gave evidence about the events, accepted that he was given a clear direction by Australia Post, but gave no good reason for refusing to follow it30.
[38] I accept the evidence of Mr.Bailey. Again, in saying that he ‘can’t knock back stuff from a customer’, Mr.Darvell at the very least raised real questions about whether or not he would comply with Australia Post directions in future.
Provisional Improvement Notices
[39] Mr.Darvell, as an Occupational Health & Safety Representative, had the power to issue Provisional Improvement Notices. On 7 June 2009, Mr. Darvell issued a Provisional Improvement Notice in relation to the loading and unloading of trucks. The Notice included ‘concerns about the lack of consultation regarding the changed work practices’ 31. The contravention cited by Mr. Darvell in the notice was ‘no consultation with OH&S Rep on changes to work practices. Bullying of drivers to do work against them claiming unsafe [work practices]’.
[40] On 9 June, Mr. John Campbell, Operations Manager, Dandenong Transport Facility, Parcels Transport Business Unit spoke with Mr. Darvell and wrote a letter to Mr. Darvell outlining the company’s response to the Provisional Improvement Notice issued by Mr. Darvell on June 7 2009 32. The letter claimed that the notice lacked required specificities and that matter did not proceed through appropriate forum before its issue. Part of the contents of the letter appear below:
‘…As per our discussion today I requested you advise what specific safety concerns you had in relation to the loading/unloading as you failed to note any specific safety concerns on your PIN notice. I further note that you were provided information on the loading / unloading requirement at MPF on 4 May 2009 and yet, to date, you have not raised any safety concerns through any of the correct escalation procedures including the local issues register and/or your immediate supervisor before issuing this PIN. I further note that you refused to provide any information to Mr Michael Bailey, OHS Advisor Transport, when he spoke to you on Thursday 4 June.’
[41] The letter further notes that Mr. Darvell identified a number of safety concerns at the meeting on the day and that a formal response to these concerns would be provided at the next Dandenong Transport Facility Occupation Health & Safety Committee meeting on 10 June 2009.
Disciplinary Inquiry
[42] On 10 June 2009 Mr. Darvell was notified that a Disciplinary Inquiry was to be held into alleged serious breaches of the Australia Post Code of Ethics.
[43] At the Occupational Health & Safety Committee meeting on 17 June 2009, Mr. Darvell indicated that he was not content with Australia Post’s response to the Provisional Improvement Notice issued by him.
[44] Mr. Bailey, present at the meeting, gave evidence about the meeting 33:
…On 10 June 2009 I attended the Health & Safety Committee Meeting at the Dandenong Transport Facility. At this meeting Mr Darvell raised a number of operational issues about driver loading/unloading. Mr Campbell, the meeting chair, then asked if there were any further issues. No further issues were raised about the driver loading/unloading.
I am aware that John Campbell wrote to Mr Darvell following this meeting advising him that Australia Post considered his PIN notice had been responded to, and that no further action was required.
[45] On 17 June 2009 Mr. Darvell attended a Disciplinary Hearing conducted by Mr. David Humble, Australia Post Manager, Melbourne Hub Network. Mr. Darvell was accompanied by Mr. Brendan Henley, Elected Official of the CEPU Postal and Telecommunications Branch Victoria.
[46] At the hearing Mr Humble began by explaining to Mr Wayne Darvell how the interview and Disciplinary Inquiry would proceed:
‘In relation to confidentiality requirements, Mr Darvell responded that he didn’t agree with the confidentiality requirements contained in the Code of Ethics, and that a Commissioner had advised him he could talk to anyone he wanted to.’ 34
[47] In relation to the allegation of loading unlabelled unit loading devices Mr. Humble gave evidence that he ‘found Mr. Darvell to be aggressive in his attitude, responses and language’ 35. When Mr. Darvell was shown a copy of the Staff Information Bulletin dated on or around 19 May (20 May) Mr. Humble gave evidence that Mr. Darvell stated, “No don’t recall seeing it”36. In relation to the allegation of failing to load and unload at Melbourne Parcel Facility, according to Mr. Humble, ‘Mr Darvell then claimed he hadn’t been approved by Australia Post to load/unload vehicles. He admitted he had a forklift licence, but said that no MTF staff have “approval”. He then claimed he had never been reviewed or trained by Learning & Development in the use of a forklift, and that not one driver at DTF had.’37. Mr. Humble in his evidence further stated:
‘When Mr Darvell said this, he responded in an aggressive manner. This aggression was shown in his tone of voice and his body language. He seemed to be angry at being questioned about the allegations. Mr Darvell was belligerent, argumentative and showed little if any respect to the Inquiry process and Inquiry officer. I said “Wayne you are being very aggressive.” I again proceeded to explain the Disciplinary Inquiry Process advising it was not the Inquiry Officer who provided the allegations and that it was my role to review and make a decision based on the facts provided by all relevant areas.’ 38
[48] Under cross-examination Mr. Darvell indicated that he had in fact been trained:
‘…Most if not all of Australia Post’s truck drivers are forklift drivers licenced? --- As far as I know, yes
And you certainly are forklift licenced? --- Yes
And you’ve been trained to drive a forklift? --- No
You don’t say you’ve been trained to drive a forklift? --- I have not been trained by Australia Post to
…You’ve been trained to drive a forklift, haven’t you? Yes
And indeed Australia Post have put you into a professional course to drive a forklift? --- not really
Not really? --- I’m sorry, to be truthful
They send you to people who do training for a living? --- Yes
And you’ve been trained by those people? --- Yes
And Australia Post have paid for it? --- Yes
And they’ve taken steps to make sure that your licence is up to date? --- Yes
And the course they sent you to was with a crowd called Bayside Forklift Training, wasn’t it, Mr Darvell? --- I don’t know. I believe that may be right.
But you don’t dispute the fact that you were appropriately licensed to drive a forklift? --- Yes
And you don’t dispute that you were trained to drive a forklift? --- Yes
And the situation, Mr Darvell, I put to you is that prior to 1 June 2009 part of your job at various facilities operated by Australia Post was to use a forklift to load and unload your truck, do you accept that?’ 39
[49] Mr.Henley denied that Mr.Darvell was aggressive and belligerent 40.
[50] I accept the evidence of Mr.Humble. I am satisfied that Mr.Darvell was aggressive. I am satisfied that Mr.Darvell denied that he had seen the Staff Information Bulletin of 19 May, when in fact he had seen that Bulletin. He denied he had been sufficiently trained in forklifts when he had been sufficiently trained.
18 June 2009 Further Breach of Direction to Load and Unload Truck
[51] On 18 June 2009 Mr. Darvell refused to unload his truck as required under the new guidelines. According to the evidence of Mr. Darvell:
‘I had some stock for Sunshine Hub which I was to drop off. Geoff Elsegood, Training Officer, was waiting for me. He said words to the effect of “Are you going to unload?” I said words to the effect of “No as I consider it unsafe. My PIN is still being investigated by Comcare”.’ 41
[52] On the same day Mr. Darvell spoke with Mr. Christian McDougall, Australia Post Facility Manager, Northern and Eastern Hub Network. Mr. McDougall gave the following evidence:
‘I then asked [Mr. Darvell] why he was not loading/unloading his truck. Mr Darvell replied that he was not doing it until Comcare completed their investigation into the practice and the Provisional Improvement Notice. He then said, “no one was consulted on this process and you can’t force this onto people without consultation”.
I then asked Mr Elsegood to witness the conversation between Mr Darvell and me. In Mr Elsegood’s presence, I asked Mr Darvell for a second time the reason why he was refusing to load/unload his truck in accordance with the direction issued on 4 May 2009. Mr Darvell then replied he had never received a Toolbox talk or been issued with the SIB dated 4 May 2009 in relation to drivers loading/unloading. I again asked Mr Darvell for his reason for refusing to follow the direction. Mr Darvell replied, “I am not going to answer that without a witness of my own…
I then asked Mr Darvell if he intended to load/unload his truck on the North dock as required by the next part of Mr Darvell’s duty. Mr Darvell relied “No I will collect my stock but I will not load/unload my vehicle.” The conversation then ended.’ 42
[53] That day Mr. Darvell also met with Mr. Stevens whom he told he would not pick up unlabelled unit loading devices any more’ 43. This meeting was witnessed by Mr. Henley. Mr. Darvell was subsequently told he was ‘off the road’ for refusing to unload the truck44.
[54] On the same day Mr. Darvell also met with Mr. Geoffrey Elsegood, Australia Post Transport Trainer, Dandenong Transport Facility. Mr. Elsegood gave the following evidence:
‘On 18 June 2009 I attended MPF. I took copies of the Safe Operating Procedures regarding loading/unloading, loading patterns for vehicles and use of Load Shifting Equipment including forklifts.
Mr Darvell arrived at MPF at approximately 12:45pm. He was driving a 28 ULD truck which he parked on dock 20 on the Southern dock area at the Sunshine Hub. Sunshine Hub and MPF are in the same facility. As Mr Darvell got out of his vehicle he asked me what I was doing there. I told him I was there to assist him with any problems he may have loading or unloading his vehicle and to provide any training he would like or need. Mr Darvell replied that he did not need any assistance and that he would not be unloading or loading any vehicle “as there is an ongoing Comcare investigation happening and I will not be performing loading or unloading duties until this is resolved’. 45
[55] I am satisfied that Mr.Darvell refused to unload his vehicle on 18 June 2009, and that he indicated that he would not do so in the future because of alleged safety concerns, and alleged lack of consultation by Australia Post, and other matters. I am not satisfied that there were legitimate safety concerns justifying a refusal to unload the vehicle. I am not satisfied that Australia Post failed to consult as required. It sought views, for example, at the Joint Consultative Committee meeting held on 4 May 2009. Even if this is not sufficient this does not justify a refusal by Mr.Darvell to load or unload his vehicle in breach of clear directions from Australia Post that he do so. Any alleged failure to consult by Australia Post was not such as to justify an employee such as Mr.Darvell refusing to follow a direction from Australia Post. I am not satisfied that Mr.Darvell had a legitimate reason to refuse to follow Australia Post’s directions.
25 June 2009 Disciplinary Hearing
[56] A further Disciplinary Hearing took place on 25 June 2009 and was again conducted by Mr. Humble who in his evidence recounted the following:
‘Mr Darvell was asked how he was and replied: “I can say the same, Terrible. Wised up to Australia Post over the last 18 years, that’s why I’m in trouble”.
I then read the following to Mr. Darvell: “Mr. Darvell at the previous interview held on 17 June 2009 I advised you on a number of occasions that I felt you were failing to treat me with Courtesy and respect. I bring to your attention paragraph two of the workplace relations Section of the Code of Ethics.” Mr. Darvell was then shown a copy of the Code of Ethics pamphlet, and section 2 of the Code of Ethics was read aloud to Mr. Darvell. I then advised Mr. Darvell “As the Inquiry Officer my role is to investigate the allegations to provide you with the opportunity to answer and provide me with your side of the events to the allegations put to you. I am advising you that if during today’s interview you fail to treat me with courtesy and respect, I will caution you that I feel you are failing to treat me with courtesy and respect and if it continues I will terminate the interview and base my findings on the information I have been provided to date”.
Mr. Darvell replied “are you threatening me?”
I replied with words to the effect of “No I’m not, I’m advising you the process requires that we need to treat each other with courtesy and respect”.’ 46
[57] In relation to the Staff Information Bulletin headed ‘Drivers Loading/Unloading – MPF’ and Toolbox attendance record dated 7 May, Mr. Humble stated:
‘The attendance sheet recorded that Mr. Darvell refused to sign the attendance record. I asked Mr. Darvell about this SIB and Toolbox. Mr Darvell said “No I don’t recall seeing a copy of the SIB…I was not here.” ’ 47
[58] At the hearing, in relation to the Staff Information Bulletin headed ‘Chain of Responsibility Labels/Weights on ULDs’, Mr. Humble gave the following evidence
‘I asked if it was his signature on the attendance record. Mr Darvell replied “Yes.” He said he could remember “something” about the SIB but that his “head was not around all of this after OH&S training.” He also said that he had taken a rostered day off on the Monday 18 May 2009, and when he had returned to work he “had a lot on my mind”. He then said that he was trying to help the customer and that “you’re just nit picking”, and that it had “slipped my mind”. He said “I have had 20 years of it being drilled in that I have to look after the customer. All of a sudden it changes.” 48
I then asked Mr Darvell if he could remember the conversation he had with Mr Neil Stevens on 1 June 2009 at the commencement of Mr Darvell’s shift. I asked Mr Darvell if he had told Mr Stevens he would not load/unload his vehicle at MPF and would not abide by the SIB that instructed drivers to do so. I then showed Mr Darvell a copy of an email sent from Neil Stevens that day, outlining his conversation with Mr Darvell and a copy of Mr Darvell’s clockings for 1 June 2009 which showed he was on duty that day. Mr Darvell told me I was wrong and that his diary stated that he was not at work. 49
Mr Darvell was adamant that his diary could not be wrong. He insisted that he was on a rostered day off on 1 June 2009 and that Mr Stevens was wrong. Mr Darvell said he was not at work so how could have a conversation with Neil Stevens? I then gave Mr Darvell details on his start and finishing times as per his clocking on and off for the day. Mr Darvell then accepted he was at work that day. He said that he must have recorded his attendance incorrectly in his diary, and that he must have been at work on overtime. He then said he would follow the Union direction not to load/unload at the MPF as it was an unsafe work practice. This response by Mr Darvell concerned me. He initially denied being at work; having the conversation with Mr Stevens; or that he had failed to follow a direction. Once he had been shown that he was at work and had clocked on and off for the day as well as the Inquiry Officer having a copy of an e-mail dated 1 June 2009 sent by Mr Stevens, he responded that he “vaguely remembered the conversation”. I formed the view that Mr Darvell was being evasive in respect of this issue.’ 50
[59] According to Mr. Humble, Mr. Darvell then made an allegation that he had been bullied throughout the process:
‘…Mr. Darvell then said “I feel these proceedings are another form of bullying me and also why am I being singled out for not being treated the same as everyone else?” I advised Mr. Darvell that in my role as Inquiry Officer I was following the process outlined in the ECDP and others who had failed to follow the direction to load/unload had been dealt with under the ECDP. I advised Mr. Darvell that the Disciplinary Inquiry was not instigated to bully him, and that he would be given every opportunity to provide input into the Inquiry. 51
Mr. Darvell then responded that refusing ULDs without weight labels from customers “puts me in a very unfair position” as a “policeman” for Australia Post. He continued “It’s your responsibility to deal with the customer. How dare you put me in this position? The system is trying to crucify me for being understanding, I didn’t do anything illegal. Drivers here are required to pick up and deliver from point A to point B, never been given a copy of the legislation.” He then said that he had already said he would conform with the Chain of Responsibility legislation which is the basis for Australia Post’s policy requiring ULDs to be weight labelled, and that “You’re harassing me”.’
[60] At the meeting, in relation to the Staff Information Bulletin dated 4 May 2009 headed ‘Drivers Loading/Unloading – MPF’ and Joint Consultative Committee meeting held same day, Mr. Humble gave the following evidence:
‘Mr. Darvell responded “at the JCC (Joint Consultative Committee) the SIB (Staff Information Bulletin) was imposed on us. I was shocked at the lack of consultation.” Mr. Darvell then became aggressive, interrupting as the SIB was read out, claiming Australia Post was not following procedure and again began to insist that he was not at work on 1 June 2009 as his diary stated he was on a rostered day off so Mr. Stevens did not talk with him then. 52
I reminded Mr. Darvell that I had received confirmation that he had been at work that day, and of his commencement and cessation times. Mr. Darvell again became aggressive in his behaviour. This was reflected in his body language of folding his arms, shaking his head, raising his voice and interrupting me when I tried to speak. He eventually acknowledged again that he must have been at work on 1 June 2009.’ 53
[61] Mr.Humble’s evidence was convincing and I accept it, even if it is inconsistent with that given by Mr.Darvell. I accept that Mr.Darvell denied being present at a toolbox meeting in relation to the 4 May 2009 Staff Information Bulletin concerning loading and unloading of vehicles, when he had been there for a sufficient time. I am satisfied that Mr.Darvell was repeatedly aggressive in his behaviour during the various interviews. In my view Mr.Darvell did not show a sufficient willingness to comply with Australia Post directions. He was defiant in his attitude and behaviour when asked legitimate questions about his conduct.
[62] Mr Humble recommended that Mr. Darvell be dismissed from employment with Australia Post and noted the following factors as relevant to his decision:
Mr Darvell’s conduct was serious and wilful;
Mr Darvell’s previous behaviour as an employee of Australia Post and previous action under the ECDP;
the extent to which Mr Darvell was prepared to accept and abide by the conditions of his employment, work level standards of a Postal Tranport Officer and the Australia Post Code of Ethics; and
the extent to which Mr Darvell demonstrated a capacity to improve his behaviour and to achieve and maintain appropriate behaviour in the future. 54
Further Provisional Improvement Notice
[63] On 25 June 2009 Mr.Darvell issued a second Provisional Improvement Notice – alleged contravention being ‘Removal of PIN Notice at Dandenong Transport also not informing Ardeer drivers of same.’ 55
Further Meeting Between Australia Post and Mr.Darvell
[64] On 1 July 2009 Mr. Darvell met with Mr. Michael Kelly, State Manager for the Parcels and Transport Business Unit, and Delegate under the Employee Counselling and Discipline Policy. According to the evidence of Mr. Kelly:
‘Australia Post conducts Disciplinary Inquiries in accordance with the Employee Counselling and Discipline Policy. The ECDP outlines when a Disciplinary Inquiry should occur, the process that should be followed, the recommendations that may be made by an Inquiry Officer, and the role of the Delegate in making the final decision.
Under the ECDP, once an employee has received the Disciplinary Inquiry Investigation Report and recommendations from the Inquiry Officer, they have five calendar days to contact the Delegate and make written or verbal submissions about the recommendation. 56
Mr Darvell said that he did not want to leave Australia Post but in response to the comment by Mr Henley that the only way to do his job as a Postal Transport Officer was to follow Australia Post guidelines he went on to say
“Of course I try! I get on the two-way – I try and stick with the policy – but there are so many policies! They go back years! How am I going to stick to a policy I don’t know about! A policy I was told about back in 2006! I try and look after everything…you get one policy from 2006 – how far back am I supposed to go! We have toolbox talks all the time…we get information overload!” 57
When I tried to explain why it is that policies evolve over time Mr Darvell asked “are we expected to follow all of them? I responded that “of course you are” and that the vast majority of them were just common sense. 58
The impression I got from Mr Darvell’s comments in the interview was that whilst he said that he “regretted” the incident, he was not prepared to acknowledge that he had done the wrong thing. Further, he only grudgingly accepted that he had an obligation to comply with these policies into the future. Rather his approach was one of taking issue with the policies and the way that they were communicated. 59
In reading the report I formed the view that Mr. Darvell’s previous disciplinary history over the last two years was inconsistent with Mr. Darvell’s insistence to me that he had been a good employee. It reinforced my concerns as to Mr. Darvell’s willingness to comply with Australia Post policies into the future.’ 60
[65] I accept the evidence of Mr.Kelly, which again supports a view that Mr.Darvell could not be relied upon in future to follow legitimate Australia Post directions on matters within the scope of Mr.Darvell’s duties.
Comcare Report on Mr.Darvell’s Provisional Improvement Notices
[66] On the 4 August 2009 Comcare issued a Report of Investigation into the Provisional Improvement Notices at Melbourne Transport Facility, issued by Mr Darvell on 7 June 2009 and 25 June 2009 61. In dismissing the substance and form of Mr. Darvell’s Provisional Improvement Notice as issued on 7 June 2009, it found the following:
… 71. I find that Mr. Darvell’s PIN of 7 June did not comply with the requirements of section 29(1) of the Act which requires an HSR to enter into consultations with the person supervising the work performed by employees.
72. I am further satisfied that Mr. Darvell acted unreasonably and capriciously in the use of his powers as an HSR. He initially raised his concerns with regard to the new procedure in his capacity as a union representative. When his protests did not prevent or delay the implementation of the process, Mr. Darvell reverted to his powers as an HSR in an attempt to align what was essentially at the time an industrial issue, to a safety issue, and therefore attempt to force APC to enter into consultation and negotiations.
73. I find that APC made several attempts in good faith to consult with Mr. Darvell, however Mr. Darvell refused to engage in consultation with appropriate management and supervisory representatives of APC both prior to, and immediately after, the issue of the PIN. Throughout the process, Mr. Darvell remained ambiguous with regard to the specific health and safety issues he had with the proposed work procedures at the MTF. He personally refused to attend any information sessions when provided to staff and he declined personal offers of training and information. 62
…102. I find that the procedure implemented at the MTF whereby PTOs are required to load and unload their own vehicles does not pose any extra unacceptable or increased risk to the health and safety of employees and I am satisfied that no further risk assessment was required before implementation of the this procedure as it actually further minimises an identified risk, being that of pedestrian/forklift interaction.
103. I find that APC conducted adequate research into the new procedure and consulted broadly with staff and their representatives prior to its implementation. 63
…113. As per my findings above, the APC’s research, consultation and implementation of the procedures for PTOs loading and unloading their own vehicles at the MTF is reasonably practicable.
…116. The PIN issued by Mr. Darvell on 7 June 2009 is invalid in both its format and that Mr Darvell refused to engage in appropriate consultation.
117. Notwithstanding these two points, the APC did do everything reasonably practicable with respect to the issues articulated in the PIN and were entitled to reasonably believe that they had satisfied their obligation with respect to the PIN. 64
[67] In relation to the Provisional Improvement Notice issued by Mr. Darvell on 25 June 2009, the report found that the notice:
‘…79. ..did not comply with section 29(1) of the Act [Occupational Health & Safety Act 1991]. He [Mr. Darvell] made no attempt to consult with appropriate representatives of APC [Australia Postal Corporation] management prior to issuing the PIN.’ 65
[68] Paragraphs 100 to 111 of the report also conclude that the Respondent provided sufficient consultation to all relevant channels and did not in any manner breach it’s obligations under legislation 66.
[69] I have formed my views of the evidence, and have not relied on the Comcare report in doing so. Nevertheless the Comcare report is not inconsistent with the views that I have formed on the evidence before me.
Mr.Darvell’s Work History
[70] In addition to the refusal to carry out two key directions as requested, the Respondent also noted that Mr. Darvell’s work history was a significant factor in its decision to dismiss him. Ultimately, the Respondent argued that it was:
‘Mr. Darvell’s ‘pattern of non compliance assessed in the context of the Applicant’s poor work history, which left the Respondent in the position that it could have no confidence that the Applicant would comply with its directions into the future.’ 67
[71] Furthermore, in response to the allegation that Mr. Darvell had been singled out, the Respondent argued that:
‘The fact that other employees having a different work history, in different circumstances did not have their employment terminated when they refused to comply with one or other of the directions, does not mean that there was not a valid reason for the termination of the Applicant’s employment or that the termination of his employment was harsh, unjust or unreasonable’.
[72] Mr. Darvell, in his witness statement, notes that ‘…since I became health and safety delegate I noticed that I was more frequently criticised by my supervisors.’ 68
[73] Ms Sharon Robinson, Human Resource Manager at Australia Postal Corporation, in her statement to the Comcare report, lists and provides brief detail of 53 incidents involving the work performance history of Mr. Darvell 69. These incidents go back to July 2000 and include situations where no formal warning or caution was given. In response Mr. Darvell notes that he cannot recall all of the incidents alleged and that ‘most of the allegations are informal counselling’70. Mr Darvell, in his response said:
‘When an informal counselling is delivered, in most cases the manager does not say “I am giving you an informal counselling”. They just give you an instruction, or a criticism. It is not treated as a formal process, where allegations are put carefully and I am invited to respond, with the assistance of a union representative.’ 71
[74] Mr. Darvell also said that:
‘A number of the allegations relate to vehicle collisions. In my experience, it is regrettable but almost inevitable that an Australia Post driver, who spends all day driving and manoeuvring a large vehicle in sometimes difficult circumstances, will have over a long period of employment collisions in the course of their duties from time to time’ 72.
[75] Many of the incidents are not denied, or Mr.Darvell claims to have no recollection of them. I am satisfied that Mr.Darvell did not overall have a good performance record, and that this was relevant to decisions taken by Australia Post.
Alleged Inconsistency of Treatment of Employees Regarding Breach of Australia Post Directions
[76] In his witness statement, Mr Stevens said:
‘In my experience at DTF (Dandenong Transport Facility) there is 100% compliance with the policy requiring drivers to load and unload their vehicles during off peak times.
I am aware of two drivers who had concerns at the commencement of the loading/unloading policy at MPF (Melbourne Parcel Facility). [One]…did not actually refuse, but parked his truck incorrectly and could not unload. He was assisted by docks staff. The other driver…was not disciplined for refusing to load/unload as he had a medical disability, and was being managed under the Non Work Related Medical Restrictions policy.
Where Drivers do not comply with Australia Post policy to only collect ULDs (unit loading devices) with weight labels, they are dealt with under formal counselling. In my experience there have been no repeat offenders. Once counselled, the drivers have not done it again. To my knowledge no driver other than Mr. Darvell has indicated that he would continue to pick up unlabelled ULDs upon having the issue raised with them. Because of the safety issues associated with transporting unlabelled ULDs I would take any such indication seriously and would consider instituting a Disciplinary Inquiry’. 73
[77] In response, Mr. Brendan Henley, a Union Official who sat in support with Mr.Darvell at a number of meetings, in his witness statement claimed:
‘I am aware of eight drivers refusing to load/unload their vehicles. The Union represented the members in the six matters that were proceeded with. No action was taken in the case of the other two. The results varied from the matter no longer being pursued to Warning Counselling. Wayne Darvell was the only one dismissed.’ 74
[78] There was also other evidence from other witnesses about the manner in which various employees were treated when policies were breached. Evidence was given about Messrs.Marsicano, Druce, and others 75. However, different employees have different work histories, respond in different ways when issues of performance are raised with them, the nature of the breach may be arguably different because of different jobs and the context, and other matters. These matters explain what appears on the surface to be an inconsistency of approach to some degree76.
[79] I also prefer the evidence of Mr.Stevens. Even if Mr.Henley is correct, factors such as the poor performance record of Mr.Darvell explain any difference in treatment.
[80] I am not satisfied that there was any inconsistency in the application of policies such as to undermine Australia Post’s right to issue directions to employees, and to discipline employees if those directions were breached.
Comcare Report on Dismissal of Mr.Darvell
[81] On 7 October 2009 Comcare issued a Report of Investigation into allegations made by Mr. Darvell alleging he was dismissed from Australia Post for performing his duties as an elected Health & Safety Representative. This was a Report of Investigation into allegations following Mr. Darvell’s dismissal and made by Mr. Darvell under section 76 of the Occupational Health & Safety Act 1991. This second Comcare report found that
(1) Australia Post, in following the Employee Counselling and Discipline Policy (ECDP) exercised their legitimate management authority;
(2) Australia Post was able to demonstrate through Mr. Darvell’s work history that they applied the ECDP and escalated the disciplinary action to the highest level of intervention and terminated his employment with Australia Post;
(3) Australia Post did not breach section 16 of the Act in respect of their actions taken to manage Mr. Darvell for incidents on 31 March 2008, 2 June 2009 and 17 June 2009;
(4) Australia Post did not breach section 76 of the Act with respect to the dismissal of Mr. Darvell; and
(5) the reason for Mr. Darvell’s dismissal from Australia Post was due to his work history which showed numerous incidents where he did not follow directions provided by supervisors and placed himself and others at risk of injury through his actions. 77
[82] I have formed my own view of the evidence before me and have not relied on the Comcare report in so doing. Nevertheless the Comcare report is not inconsistent with the view of the evidence before me that I have formed.
Decision
[83] Section 387 provides:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia 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 Fair Work Australia considers relevant.
Whether there was a valid reason for termination of employment
[84] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 78, in relation to s.170DE of the Industrial Relations Act 1988. There are many legislative changes which make earlier decisions of less or no relevance, because of changes in the objects or the relevant provision of the Act. However, Selvachandran continues to be of relevance and continues to be applied. I am also guided by a decision of a Full Bench of the Australian Industrial Relations Commission in Annetta v. Anset Australia Ltd79, and other authorities. An employee is required to follow lawful directions of the employer within the scope of his duties.
[85] I have in this decision preferred the evidence of the various employer witnesses, such as Messrs. Rawlins and Humble, where Mr.Darvell’s evidence is inconsistent. Mr.Darvell was a less convincing witness, whose evidence was on occasion inconsistent or even evasive.
[86] I find that there was a valid reason for the termination of Mr.Darvell’s employment, namely breach of Australia Post directions by accepting ULD’s without weight labels, refusing to unload his vehicle, and walking outside the designated area at the Melbourne Parcel Facility.
Whether the person was notified of the valid reason
[87] Mr.Darvell was notified of the valid reason for termination of his employment.
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the employee
[88] Mr.Darvell was given an opportunity to respond to reasons relating to his conduct.
Whether there was any unreasonable refusal to allow the employee to have a support person present to assist at any discussions relating to the dismissal
[89] Mr.Darvell was afforded a right to have a support person to assist in discussions relating to the dismissal.
In relation to any unsatisfactory performance by the person - whether the person had been warned about the unsatisfactory performance before the dismissal
[90] Dismissal was for misconduct rather than unsatisfactory performance. However, Mr.Darvell had received numerous warnings for unsatisfactory performance.
Degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[91] Australia Post is a large corporation that should follow appropriate procedures in terminating the employment of an employee.
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
[92] Not relevant.
Any other matters Fair Work Australia considers relevant
[93] I have had regard to all relevant matters.
Harsh, Unjust or Unreasonable
[94] Mr.Weimann submitted that while Mr.Darvell did pick up unlabelled ULDs, this and other matters do not justify termination. This is because of factors such as the fact that Mr.Darvell did not conceal the fact that he picked up the ULDs, the breach occurred on only the second day after the new policy was introduced, he was attempting to keep the customer happy, he now acknowledges that he should not have done this, and evidence that Australia Post does not treat non-compliance with the policy as a serious disciplinary matter. Similarly, Mr.Weinmann submitted that Mr.Darvell genuinely believed that he was entitled to refuse to unload his truck, and this belief was reasonable, Australia Post did not consult in accordance with clause 3 of the Australia Post Enterprise Agreement, and other matters. Mr.Weinmann submitted that Mr.Bailey could not have reasonably formed the view that Mr.Darvell denied all knowledge of the policy against picking up unlabelled ULDs 80. He put other submissions.
[95] Mr.O’Grady submitted that there was no contest that Mr.Darvell had breached the policy on transporting goods without weight labelling and that he load and unload his vehicle on off peak times, but there was a dispute over whether he walked outside the designated area at the Melbourne Parcel Facility 81.
[96] In my view Australia Post had promulgated a policy on weight labels and communicated it to Mr.Darvell, and it was entitled to expect Mr.Darvell to comply. It is true that the failure to comply was shortly after the policy. However, it was an intentional breach, and Australia Post could not reasonably be satisfied that it would not occur again. There may be on occasion questions raised about the degree to which Australia Post is fully consistent in the application of its policies, but not in this case such as to undermine its right to issue directions and have them complied with. As discussed earlier, if comparisons are to be made between the treatment of various employees they have to take into account the different contexts, which include work history, the responses made by each employee, the nature of the job and other matters. I found Australia Post’s witnesses such as Mr.Rawlins to be convincing witnesses of truth.
[97] I also find that the refusal of Mr.Darvell on two occasions to unload his vehicle to be a serious and deliberate breach of Australia Post’s directions. There was no justification for Mr.Darvell’s refusal to unload his vehicle. Various safety objections to the direction were raised during proceedings, but none of them were in my view substantiated. Comcare reports are consistent with this view. The direction was lawful and within the scope of Mr.Darvell’s duties. A belief held on the part of Mr.Darvell that he was entitled to refuse to unload does not in this case, in all the circumstances, justify a refusal to unload. The reliance placed by the CEPU on DTR Nominees Pty Ltd v. Mona Homes 82 is misplaced83. The Commission has repeatedly found that lawful employer directions within the scope of employment must be complied with. If it found otherwise the effect on the ability of Australia Post and other employers to manage workplace issues would be substantially undermined.
[98] Finally, Mr.Darvell did not use a designated walkway on 2 June 2009. This is not by itself an issue of overwhelming importance, but in conjunction with other issues it is of some limited significance. Mr.Darvell breached Australia Post directions on three occasions, and this is yet another instance of a breach of directions. Mr.Darvell’s employment was terminated for these matters, not because he was a shop steward or an occupational health and safety representative.
[99] Mr.Darvell had discussions with many supervisors and managers at Australia Post about his actions. He met with and had discussions with Mr.Stevens on 1 June 2009, with Mr.Rawlins on 2 June 2009, with Mr.Bailey on 4 June 2009, with Mr.Humble on 17 June 2009 and 25 June 2009, with Mr.McDougall on 18 June 2009, Mr.Elsegood on 18 June 2009, and Mr.Kelly on 1 July 2009.
[100] Australia Post showed an almost exemplary patience in dealing with Mr.Darvell. It repeatedly gave Mr.Darvell the opportunity to put his case, responded to his stated concerns, and clarified and made clear the nature of the directions it was giving him. Mr.Darvell’s explanations for his conduct were not satisfactory. He was consistently defiant in his attitude. He did not show a sufficient willingness to comply with legitimate directions given by Australia Post.
[101] Australia Post had reasonable and defensible grounds for believing that Mr.Darvell could not be relied upon to in future comply with reasonable directions. Australia Post was entitled to expect that Mr.Darvell would comply with reasonable directions, and this was a most serious issue going to the heart of the employment relationship. For a whole range of reasons including safety, and legitimate business interests, employers must be able to issue directions to employees as to how work is performed. Directions on loading and unloading vehicles at the Melbourne Parcel Facility, and on weight labels on ULDs, are also serious issues going to the heart of Mr.Darvell’s duties, and involve legislative obligations on Australia Post in the case of ULDs. Breach of such directions are not minor, trivial or ancillary issues.
[102] It is unnecessary to my decision, but other valid reasons for termination existed and add to the weight to be given to the matter.
[103] Mr.Darvell was summarily dismissed, and there is a reasonably high threshold to be reached before such a dismissal is consistent with a fair go all round. However, Australia Post has met that threshold. I find that Mr.Darvell was afforded a fair go all round. The termination of his employment was not harsh, unjust or unreasonable. I dismiss his application.
DEPUTY PRESIDENT
Appearances:
Mr A Weinmann, Barrister, for Mr W Darvell
Mr C O’Grady, Barrister, for Australia Post
Hearing details:
Melbourne
2009
11, 12 and 30 November
Final written submissions:
7 December 2009
18 December 2008
23 December 2009
1 PN8-11
2 Exhibit A12, Witness statement of Mr Christian McDougall, paragraph 8
3 Ibid. Attachment CM1
4 Exhibit A7, Witness statement of Mr Andrew Rawlins, paragraph 7
5 Ibid. Paragraph 8
6 Ibid.Paragraph 13, Attachment AR3
7 PN 346
8 PN 360
9 PN 369
10 Exhibit A4, Witness statement of Mr Neil Stevens, paragraph 6
11 Exhibit D2, Witness statement of Mr Wayne Darvell, paragraph 36
12 Ibid. Attachment WD3
13 Ibid. Attachment WD3
14 Exhibit A4, Witness statement of Mr Neil Stevens, paragraph 7
15 Exhibit A12, Witness statement of Mr Christian McDougall, Attachment CM4
16 Exhibit A4, Witness statement of Mr Neil Stevens, paragraph 8
17 Ibid paragraph 9
18 Ibid paragraph 10
19 Exhibit A7, Witness statement of Mr Andrew Rawlins, attachment AR4
20 Ibid paragraph 14
21 Exhibit A5, Witness statement of Ms Rose Genovese, paragraph 5
22 PN472-476
23 Exhibit D2, Witness statement of Mr Wayne Darvell, paragraph 19
24 Exhibit A7, Witness statement of Mr Andrew Rawlins, paragraph 18
25 PN 502-03
26 Exhibit A7, Witness statement of Mr Andrew Rawlins, paragraph 20
27 Exhibit D2, Witness statement of Mr Wayne Darvell, paragraph 28
28 Exhibit A11, Witness statement of Mr Michael Bailey, paragraph 18
29 Ibid paragraphs 19 and 20.
30 PN592-622, Witness statement of Mr.Wayne Darvell, paragraphs 51-57
31 Exhibit D2, Witness statement of Mr Wayne Darvell, paragraph 39
32 Ibid Attachment WD5, page 24
33 Exhibit A11, Witness statement of Mr Michael Bailey, paragraph 27
34 Exhibit A13, Witness statement of Mr David Humble, paragraph 15
35 Ibid paragraph 19
36 Ibid paragraph 20
37 Ibid paragraph 26
38 Ibid paragraph 27
39 PN 283 - 297
40 PN1702
41 Exhibit D2, Witness statement of Mr Wayne Darvell, paragraph 42
42 Exhibit A12, Witness statement of Mr Christian McDougall, paragraphs 25, 26 and 27
43 Exhibit D2, Witness statement of Mr Wayne Darvell, paragraph 29
44 Ibid paragraph 44
45 Exhibit A9, Witness statement of Mr Geoffrey Elsegood, paragraph 8
46 Exhibit A13, Witness statement of Mr David Humble, paragraphs, 49, 50 and 51
47 Ibid paragraph 57
48 Ibid paragraph 58
49 Ibid paragraph 63
50 Ibid paragraph 64
51 Ibid paragraph 66
52 Ibid paragraph 71
53 Ibid paragraph 72
54 Ibid paragraph 93
55 Exhibit A11, Witness statement of Mr Michael Bailey, paragraph 30
56 Exhibit A14, Witness statement of Mr Michael Kelly, paragraphs 4 and 5
57 Ibid paragraph 17
58 Ibid paragraph 18
59 Ibid paragraph 20
60 Ibid paragraph 23
61 Exhibit A11, Witness statement of Mr Michael Bailey, Attachment MB5, Report of Investigation, Investigation Number: 4212
62 Ibid p14 paragraphs 71-73
63 Ibid p18 paragraphs 102 and 103
64 Ibid p19 paragraphs 113, 116 and 117
65 Ibid
66 Ibid
67 Exhibit A1, Respondent’s outline of submissions, paragraph 3
68 Exhibit D2, Witness statement of Mr Wayne Darvell, paragraph 11
69 Exhibit A11, Witness statement of Mr Michael Bailey, attachment MB6. Statement of Ms Sharon Robinson for Comcare Report pp 4-10 paras 25-81
70 Exhibit D4, Mr. Darvell’s response to Ms Sharon Robinson’s statement for Comcare Report, p 1
71 Ibid p 1
72 Ibid p.1
73 Exhibit A4, Witness statement of Mr Neil Stevens, pp 8-9 paragraphs 35, 36 and 37
74 Exhibit D6, witness statement of Mr Brendan Henley, paragraph 7
75 Applicant’s Written Submission, 7 December 2009, paragraph 5e
76 Australia Post written submission, 18 December 2009, paragraph 73
77 Exhibit A11, witness statement of Mr Michael Bailey, attachment MB6, Comare Investigation No. 4222 (7 October 2009)
78 (1995) 62 IR 371 at 373
79 S6824, 7 June 2000, Guidice J, Williams SDP, Cribb C.
80 Applicant’s Submissions, 7 December 2009, paragraphs 2-45
81 Respondent’s Submissions, 18 December 2009
82 (1978) 138 CLR 423 at 432
83 Australia Post Submissions, 18 December 2009, paragraph 47
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