Rand wins but still $30k worse off

Rand Refrigerated Logistics denied opportunity to reclaim compensation paid to sacked driver after unfair dismissal is overturned

By Brad Gardner | August 20, 2010

It managed to defeat an unfair dismissal claim, but Rand Refrigerated Logistics’ bid to recoup the compensation it paid to its driver has been scuttled.

The full bench of Fair Work Australia has rejected Rand’s request for Glenn Gervasoni to pay back the $29,484.04 he was awarded in 2009 for unfair dismissal. The decision was overturned in March this year on appeal.

Rand, also known as Rand Transport, paid compensation before launching the appeal and now says it is entitled to recover the money.

But in its written judgement, the full bench says "we are not persuaded" that Fair Work Australia should make Gervasoni return the cash. According to the full bench, Rand did not seek a stay on compensation when the matter was heard by Blair.

"Rand said it did not seek an order in such terms because it believed that a Full Bench order quashing Commissioner Blair’s order implicitly obliged Mr Gervasoni to repay the monies," the judgement reads.

"Rand also indicated that while it could take action to recover the monies through restitution proceedings in the courts, that would be time inefficient and costly for it and Mr Gervasoni and has risks."

The full bench dismissed the argument by saying Rand might need to pursue court action regardless of any order issued, adding that "we do not think the time and cost considerations raised by Rand are a sufficient basis for us to exercise our discretion".

Gervasoni was sacked by Rand after GPS data revealed he was speeding and had disabled the speed limiter.

In the original matter, Blair ruled the technology was inaccurate and the driver was dealt with harshly. But the full bench accepted evidence on appeal that the tool was accurate to within 0.1 km/h 95 percent of time.

It also accepted that Gervasoni had driven more than 100km/h 54 times during a trip from Derrimut in Victoria to Tarcutta in NSW despite the vehicle having a 100km/h limiter.

The full bench found Rand complied with its industrial relations obligations by notifying Gervasoni of why he was being terminated and giving him an opportunity to respond.

Related stories:
Operators warned against reliance on GPS systems
Rand wins appeal against speeding driver

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