Driver didn't know of K&S policy, court hears


Driver fired under K&S Freighters' policy on damaged on vehicles could not have known obligations at the time of incident

By Brad Gardner | June 8, 2010

A truck driver fired under K&S Freighters' policy on damaged on vehicles could not have known his obligations at the time of the incident, the NSW Federal Court has been told.

James Lee was terminated on February 17 last year when he refused K&S permission to deduct money from his wages to repair a semi-trailer he reversed into a pole at a loading dock.

Drivers who do not agree to pay up to $2,000 from their wages to cover damages deemed negligent by the company face the sack.

But during cross-examination, K&S Managing Director Leigh Winser revealed the stance on deduction or dismissal did not appear in the policy.

The directive was made to company executives in an email on February 11 last year - the same day Lee damaged the truck.

"How would he know [the policy]?" the barrister representing Lee, Adam Hatcher, asked Winser.

During his testimony, K&S Executive General Manager Steve Fanning told the court the email was passed on to managers on February 12 to inform staff and that Lee did not have a copy of Winser's directive.

"This is the genesis of this policy," Justice Dennis Cowdroy says, referring to Winser's email.

Winser's message also instructed a minimum weekly deduction of $100 from the wage of a driver considered to have negligently damaged a vehicle.

"That is a requirement that did not appear in the vehicle policy," Hatcher says.

"This was a new requirement that you imposed on 11 February 2009."

The court was told the $2,000 liability limit did not exist in writing, but Winser says it is "well known" throughout the company.

"I could get managers who could clearly state this fact," he says.

The Transport Workers Union is trying to have the policy overturned, claiming a company's insurance should cover damages. It is also seeking a claim on Lee's behalf.

Winser says the policy is there to improve safety and employees' attitudes toward company equipment.

He says the policy has led to a decline in vehicle incidents.

According to Winser, provisions on negligent damage exist in a handbook given to drivers.

DRIVER RESPONSIBILITY

The court heard that Lee, like all drivers, was given a handbook during induction training outlining their obligations and company policies.

"You were told what was in the handbook was what the company expected drivers to do," barrister for K&S Chris O'Grady says.

Lee responded: "Yes."

According to O'Grady, the company gave drivers the opportunity to read the handbook and seek advice from their supervisor if necessary.

Furthermore, Lee agreed with O'Grady's assessment that he used the loading dock at the site of the incident "many hundreds of times" and knew there was a pole near where he needed to reverse.

O'Grady says Lee should have looked out the side of the truck window if he was having trouble reversing because the incident happened on the driver's side.

But Lee says drivers rely on a truck's mirrors to reverse a vehicle. The court heard Lee's vision was impaired because the sun was shining directly into the mirrors at the time.

"You couldn't see it," Lee says of the pole.

He also rejected O'Grady's suggestion he was told by K&S it wanted him to pay for the damage before it issued him a document seeking his authorisation to deduct money.

The case continues.

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