Company forced to reinstate owner-driver

Company forced to reinstate owner-driver despite declaring him a "safety risk" for causing almost $30,000 damage to tanker trailer

Company forced to reinstate owner-driver
Company forced to reinstate owner-driver
By Brad Gardner

A company has been forced to reinstate an owner-driver despite declaring him a "safety risk" for causing almost $30,000 damage to a tanker trailer.

The NSW Industrial Relations Commission has found Downer EDI guilty of unfairly terminating a sub-contractor after he dented and scratched the company's trailer by hitting a telegraph pole.

The Commission heard owner-driver Brendon Small was given no work following the incident on June 27 last year, which caused $29,355 in damages to the trailer.

Although Small claimed faulty trailer suspension caused the accident, Downer EDI told the 65-year-old he was unfit to drive and needed to find a replacement to keep the contract to carry bitumen.

Small, however, said he could not afford to hire another driver, prompting Downer EDI to end a 30-year association with Small. But Commissioner Peter Connor ruled Small’s driving record meant Downer EDI should not have ended the contract.

Although Small had three incidents in 2008 while working for Downer EDI, Connor said the driver’s "relatively unblemished driving record" of two traffic infringements since 1960 should have been taken into account.

"I see no reason why Mr Small should not return to work for Downer EDI, as he has done for a lengthy period of time already," Connor says.

Prior to legal action, the Transport Workers Union (TWU) contacted Downer EDI to resolve the situation, but the company’s Jim Dinarkis told the union "I won’t sleep at night knowing this guy is on the road".

"Mr Small is a safety risk as far as we’re concerned and he will not be driving for the company again," Dinarkis told the TWU’s Darren Wait.

During the hearing, Downer EDI refuted claims by Small that faulty suspension had caused the trailer to swerve sideways into the pole when he turned a corner.

The company argued the extent of the damage and the fact the pole had shifted due to the force of the collision meant Small failed to abide by a stop sign and had cut the corner at speed.

"It is highly improbable that the tanker crabbed sideways while Mr Small turned the corner, given that the tyre tracks left by the tanker in the dirt alongside the telegraph pole were straight without scuffing whatsoever," Downer EDI’s William Twyman says.

Connor, however, was unconvinced, saying if speed was a factor then it was possible the trailer would have overturned.

Connor made the assertion following evidence from a TWU organiser who had driven Small’s prime mover on the section of road.

According to the TWU, the pole was obscured by the truck’s sleeper cab, while the section of road forced the driver to do a sharp turn and a right hand u-turn immediately afterwards around a traffic island.

"Even if I had not stopped at the stop sign, it would be necessary to slow to a very slow speed to take the corner," the delegate told the court.

"In any scenario, in my view, it would be impossible to take a semi-trailer around the corner at speed."

It took three months to fix the trailer, which Downer EDI estimated cost the company $119,950 in lost revenue.

Small’s two other incidents both occurred in 2008, with the first attributed to negligent driving.

Court documents show Small had to brake heavily to stop the tanker from sliding down an embankment after he attempted to turn the vehicle on a narrow dirt road.

Less than a month later, Downer EDI reported another incident after Small left the bitumen hose connected at the fill point of the silo at the company’s asphalt plant.

Downer EDI alleged the incident had the potential to cause injury if heated bitumen leaked from the hose. However, Small claimed it was "common for contract drivers to leave the hose attached to the fill point on the silo".

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