K&S right to use vehicle policy and driver handbook to sack driver despite the documents not mentioning staff can be dismissed, NSW Federal Court hears
By Brad Gardner | June 10, 2010
K&S Freighters was right to use its vehicle policy and driver handbook to sack James Lee despite the documents not mentioning staff can be dismissed, the NSW Federal Court has heard.
The barrister representing K&S, Chris O’Grady, yesterday mounted a defence of the operator’s use of the documents, which mention employees are financially liable for negligently damaging vehicles.
The documents do not stipulate a driver can be sacked if they do not agree to deductions to pay for damage.
Lee was fired on February 17 last year for refusing to pay to repair a semi-trailer he reversed into a pole at a loading dock.
But O’Grady says the omission does not negate K&S’ ability to deduct funds because it is asserting its rights.
“The right to recover money is articulated,” O’Grady argued, referring to the handbook clause stating: “Negligent damage will be costed to the employee.” The vehicle policy states negligent damage “may” be costed to the employee.
K&S Managing Director Legh Winser issued the directive on deductions or dismissal in an email to executives on February 11 last year, the same day of Lee’s accident.
Barrister Adam Hatcher, who represents Lee and the Transport Workers Union, argued Lee should not have been sacked because he was not informed prior to his employment on August 25, 2008 he could lose his job for refusing deductions.
During proceedings yesterday, Justice Deenis Cowdroy questioned the application of Winser’s directive because Lee was unaware of it.
“Where is it said by Mr Lee that ‘I agree with this?’” Cowdroy asked.
“Wouldn’t he need to have notice of this before it can said to be binding?”
While accepting there was no evidence Lee knew or agreed to deductions or dismissal, O’Grady responded that K&S had “unfettered discretion” to recover damages.
O’Grady told the court Lee was aware of K&S’ expectations because he was given the handbook outlining company policies during induction training.
“Mr Lee was on notice by virtue of the handbook,” O’Grady argued.
He said the company sought acknowledgement from drivers that they understood and agreed with the handbook’s terms.
“Mr Lee did not raise any objection at any time to anything contained in the handbook,” he said.
“Your honour should proceed on the basis Mr Lee did acknowledge it.”
Cowdroy also questioned the section of the enterprise agreement under which Lee was employed which states that incidents will be “thoroughly investigated”.
K&S sacked Lee without first investigating his claims the accident happened due to the sun impairing his vision and the pole being in a blind spot.
“If the company didn’t fulfil that obligation isn’t it in breach of contract?” Cowdroy asked.
O’Grady responded the company was right to assume Lee was negligent because he was an experienced driver, he used the loading dock multiple times a day and faced no time constraints and distractions when the accident happened.
“Your honour should find on this occassion the driving was negligent,” O’Grady told Cowdroy.
The barrister is due to conclude his argument when the case resumes today.
The TWU, which wants K&S’ policy abolished, is seeking almost $45,000 in damages on behalf of Lee.
The hearing has been extended to today. The Federal Court originally allocated three days to the matter from June 7 to June 9.