K&S accused of being 'untrue' on vehicle policy


Doubt cast on authenticity of document K&S Freighters used to sack driver James Lee

By Brad Gardner | June 9, 2010

Doubt has been cast on the authenticity of a document K&S Freighters used to sack driver James Lee, who claims he never signed it despite his signature appearing on the piece of paper.

In the NSW Federal Court yesterday K&S operations manager, Mark Ticehurst, produced a copy of the company's vehicle policy containing the clause that drivers may be liable for negligently damaging vehicles. It did not state that drivers may be sacked for refusing to pay repair costs.

The court heard the policy was issued to drivers to sign on February 12 last year, one day after K&S Managing Director Leigh Winser emailed company executives ordering the instant dismissal of drivers who refused to pay for negligently damaging vehicles.

Ticehurst told the court he called Lee into his office on February 12 - one day after the driver reversed a truck into a pole - and handed him the document, saying: "If you don't sign it there won't be a position here."

Lee was sacked on February 17 for refusing to pay for the damage.

But while Ticehurst maintained Lee signed the policy, the driver told the court he never saw it and did not recognise the signature on the document.

Lee's comments prompted Adam Hatcher, the barrister representing Lee and the Transport Workers Union, to accuse Ticehurst of not telling the truth.

"I want to put it to you that it simply didn't happen," he told Ticehurst.

"That is not his signature on the document."

"It did happen," Ticehurst replied.

Hatcher also questioned why the policy did not mention Winser's directive specifying $100 weekly deductions or instant dismissal considering it was used against Lee.

The document also forced a quick adjournment and objections from Hatcher, who was unaware it existed because he was not given a copy prior to proceedings.

Winser and K&S Executive General Manager Steve Fanning did not mention the document during their testimonies, while Ticehurst neglected to refer to it in his affidavit.

"Your evidence about this is untrue," Hatcher told him.

"I am telling the truth," Ticehurst responded.

"I've overlooked this with this affidavit. I made a mistake."

Ticehurst also told the court the policy on deductions or dismissal was only enforced from February 12 after Winser's email was sent to executives.

NO BASIS FOR SACKING: HATCHER

Following Ticehurst's testimony, Hatcher argued K&S had no right to dismiss Lee the way it did.

Hatcher told the court Lee was not given a policy prior to his employment outlining that he must agree to deductions for damaging vehicles or face being dismissed.

"It says nothing about deductions, it says nothing about summary dismissal," Hatcher told the court.

"It says nothing about the requirements to have $100 deducted from your pay."

Hatcher also highlighted that the deduction or dismissal directive was missing from the handbook, which only mentions that drivers may be held liable to pay.

According to Hatcher, K&S did not investigate the incident to assess Lee's claim that his vision was impaired by sunlight and that the pole was in a blind spot.

The court was told K&S breached its obligations to Lee because employees can only be instantly dismissed for serious misconduct or a serious accident.

Hatcher claimed Lee should not be bound by the driver's handbook because had not signed it to consent to being held liable for negligently damaging a vehicle.

HANDBOOK PART OF CONTRACT: O'GRADY

However, K&S' barrister Chris O'Grady argued Lee was bound by the handbook.

During a brief submission before court was adjourned, O'Grady told the court Lee was given the handbook and was told he was expected to comply with company policies.

"In my submission it is clearly contractual in nature," O'Grady argued.

According to O'Grady, Lee had the opportunity to consider the liability policy in the handbook and did not raise any concerns with the company.

By not objecting, O'Grady claimed Lee was bound to comply with the handbook's requirements.

The barrister also argued there were implied terms in Lee's employment contract such as due care and responsibility and a duty to the employer.

O'Grady is due to continue his submission when court resumes at 2:15pm today.

The TWU is trying to have K&S' vehicle policy overturned and is seeking about $45,000 in damages on behalf of Lee.

The union claims a company's insurance should cover costs.

During proceedings, Winser defended the policy by saying it helped improve safety and led to a decline in accidents.

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