Owens Transport cops spray for sacking subbie


Commissioner blasts Owens Transport for sacking subbie accused of tying a noose to a colleague's forklift

Owens Transport cops spray for sacking subbie
Owens Transport cops spray for sacking subbie
By Brad Gardner | January 14, 2010

Wharf cartage operator Owens Transport has been accused of denying an owner-driver "natural justice" after it sacked him for allegedly tying a noose to a colleague’s forklift.

NSW Industrial Relations Commission Deputy President Peter Sams blasted the actions of Owens general manager Cameron Clode, saying the handling of the incident raised real concerns.

He says the company failed to give its long-time subcontractor Edward Wosik an opportunity to consider and respond to the allegation of tying the noose and then fastening it to forklift’s roof.

Wosik admitted to tying the noose but only throwing it on the roof.

Sams says there was a "rush to termination" and that Clode did not tell Wosik of the allegations against him before a disciplinary hearing.

"In my view, the respondent’s handling of Mr Wosik’s termination was less than satisfactory," Sams says.

"This was a denial of natural justice."

Sams says Clode also gave the impression he would terminate Wosik’s employment before the owner-driver had a chance to explain his actions.

"This, too, was a denial of natural justice," Sams says.

Owens was ordered to reinstate Wosik who had worked for the operator for 15 years.

"I find the termination of Mr Wosik’s contract was unfair, both substantively and procedurally," Sams ruled.

The commission was told Owens Transport may have acted promptly because the forklift’s driver, Hirdesh Chand, feared for his safety and said he would call the police if immediate action was not taken.

Chand said he had enemies within the workplace and considered the noose was meant as a threat.

Owens relied on CCTV footage to justify Wosik’s sacking, claiming it showed the owner-driver tying the noose and then fastening it to the roof.

The operator claimed the footage also showed the noose hanging from the roof when another subcontractor, Brian Hoggerty, drove the forklift.

But the latter footage was subsequently wiped and photos also taken by the CCTV failed to show the noose hanging down.

The Transport Workers Union represented Wosik and argued the footage was inconclusive.

Sams agreed and says the photos show the rope bunched on the roof.

Furthermore, he says the existing CCTV footage does not show Wosik fastening the noose.

According to Sams, there were at least four other people aware of the noose but they were not asked about their version of events.

He says it is also unclear as to how many subcontractors were in the depot between the time of the incident and when Chand found the noose.

"I am unable to positively conclude that the respondent has satisfied the onus it bears in establishing the conduct took place," Sams says.

"Accordingly, the Commission cannot positively conclude, given the state of the evidence and, on the balance of probabilities, that Mr Wosik did tie off the noose to the roof of the forklift."

Owens Transport argued against reinstating Wosik over concerns it would send a message that his behaviour was tolerated in the workplace.

Wosik had apologised to Chand, which he had a good working relationship with, after the incident and said he never intended any hurt or to upset him.

The commission was told Wosik had no history of threatening behaviour and he was not the type of person who would deliberately hurt or bully anyone.


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