Federal Court reserves judgement on K&S policy


Judgement reserved on legality of K&S Freighters' sacking of driver James Lee, amid warnings for and against allowing company to dismiss workers who refuse to pay for damaged vehicles

Federal Court reserves judgement on K&S policy
Judgement reserved on K&S policy

By Brad Gardner | June 11, 2010

Judgement has been reserved on the legality of K&S Freighters' sacking of driver James Lee, amid warnings for and against allowing the company to dismiss workers who refuse to pay for damaged vehicles.

Justice Dennis Cowdroy yesterday deferred a decision on whether K&S was right to terminate Lee after he refused weekly deductions from his wages to repair a semi-trailer he reversed into a pole on February 11 last year.

Barrister Adam Hatcher claimed the policy of deduction or dismissal "strikes at the heart and foundation" of employment awards because minimum rates of pay may not be guaranteed if a company can deduct money by threatening the sack.

"This is not a trivial matter," Hatcher, who is representing Lee and the Transport Workers Union, told the court.

Hatcher wants Cowdroy to determine if the industrial agreement Lee was employed under, which does not mention deductions or dismissal, permits K&S to deduct wages.

But K&S' barrister Chris O'Grady cautioned against striking down the operator's ability to take action against drivers deemed to have negligently damaged vehicles.

If Hatcher's submission is upheld, O'Grady claims K&S may be powerless even in a blatant case of negligence that had been thoroughly investigated where the driver may admit fault.

"This is the scenario that might well occur," O'Grady argued.

"My client would not have the right to terminate the employment of the employee."

Hatcher, however, disputed O'Grady's claim K&S may be powerless as an "extreme example", saying it is OK to deduct money if an employee consents without being threatened with the sack.

Hatcher also reiterated his argument K&S acted inappropriately because Lee was not told when he began working for the company in August 2008 he could be terminated for refusing to pay for damage to vehicles.

The directive on deductions or dismissal was made on February 12 last year in an email to company executives from K&S Managing Director Legh Winser.

Cowdroy questioned how Winser's order could apply to Lee.

"How can you say the company had that right if it was not known to Mr Lee?" he asked O'Grady, who reiterated that K&S' vehicle policy and driver handbook permitted the company to recover money.

Deductions, he argued, were a means to getting the money.

The handbook, which outlines K&S policies and was given to Lee during induction training, states: "Negligent damage will be costed to the employee."

The separate vehicle policy says negligent damage "may" be costed to the employee.

But Hatcher argued the term "costed to the employee" does not permit K&S to deduct money.

"The words in that document simply cannot support that proposition," Hatcher told the court.

"There's nothing in that language that imposes any obligation on the employee."

Furthermore, Hatcher claimed Lee never signed or recalled seeing a page in the handbook giving his consent to company policies.

He said K&S could not sack Lee instantly because the award the driver was employed under stated he could only be summarily dismissed for serious misconduct.

According to Hatcher, Lee did not commit serious misconduct when he reversed into a pole.

During his submission, O'Grady argued Lee was bound by the handbook because he never raised any objections to its contents despite being given the opportunity to do so.

The court heard that Lee was also told by K&S representatives the handbook contained policies the company expected him to abide by.

During proceedings this week, a K&S operations manager, Mark Ticehurst, produced a copy of the vehicle policy he claimed Lee had signed on February 12 - one day after the driver's accident.

Lee claimed he never saw the document and did not recognise the signature, leading Hatcher to accuse Ticehurst of being "untrue".

The TWU, which wants K&S' policy abolished, is seeking about $45,000 n damages on behalf of Lee.

During his testimony, Winser told the court K&S' decision to hold drivers financially liable improved safety and reduced the number of incidents.

The hearing was extended to June 10. The Federal Court originally allocated three days to the matter from June 7 to June 9.

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