A transport operator punished its driver after he voiced concerns about fatigue management breaches
By Brad Gardner | June 7, 2011
A waste transport operator turned on its truck driver by refusing to give him work after he raised concerns about potential fatigue management breaches.
Fair Work Australia has ruled that United Resource Management told Tony Richard Forrow not to bother coming back to work as punishment for questioning the company’s request for drivers to work longer hours.
Commissioner Ian Cambridge ruled that United Resource Management’s action amounted to unfair dismissal and was particularly devastating because Forrow was denied work around Christmas time.
“The evidence has firmly established that the reason for the instruction to the applicant not to work on 21 December and beyond was a punishment in retaliation for the applicant raising issue about working hours in excess of the fatigue management regulations,” Cambridge says.
“It is relevant to recognise that the events under examination were occurring in the week before Christmas and this would have heightened the financial pressures that were created by the instruction to the applicant to not attend for work.”
In his written judgement, Cambridge labelled United Resource Management’s decision “unconscionable” and unlawful.
Fair Work Australia was told the company – operating under a contract with Warringah Municipal Council – asked drivers to work longer to clear a backlog of tasks.
Forrow told his supervisor, Ernesto Butera, he would exceed his permitted work hours if he continued driving. When Forrow returned to the depot, Butera told him not to come back.
Butera claimed he took Forrow’s name off the roster because he did not think the driver’s services were needed.
However, witnesses confirmed the period before Christmas was busy and that demand for work would increase. Furthermore, Cambridge says an unexpected absence of about five drivers and vehicle breakdowns meant the company had unfinished jobs.
“All of these factors contributed to a demand for more rather than less collection vehicle drivers to be rostered for work,” Cambridge says.
Forrow made notes of the conversation with Butera, and Cambridge accepted the former’s evidence for the reasoning behind his dismissal.
“Conversely, the performance of Mr Butera as a witness was, at best, regrettable. Mr Butera’s answers to questions during cross examination were often evasive and guarded,” he says.
Another hearing is due to be held this month to determine compensation for Forrow, who was represented by the Transport Workers Union (TWU).
In his ruling, Cambridge also took aim at the truck driver for his decision to go the press after the company refused to give him work.
“Following the commencement of his unfair dismissal claim the applicant sought to publicly denigrate the employer,” Cambridge says.
While saying Forrow’s decision did not affect the ruling, Cambridge added that it might have an influence on the amount of compensation he receives.
“On balance, I believe that the post dismissal actions of the applicant connected with the public denigration of the employer are regrettable, broadly counter-productive and should not be endorsed,” he says.
CASUAL OR PERMANENT?
During proceedings, Fair Work Australia heard that Butera made his directive in the belief that Forrow was a casual employee.
The driver’s employment letter clearly stated he was a permanent employee, but United Resource Management altered the letter it had by scrubbing out the word permanent and replacing it in handwriting with the word casual.
It did not, however, notify Forrow. Cambridge ruled that the driver had to receive written confirmation that he was employed as a casual.
“In the absence of such written information the applicant would be entitled to rely upon the written advice that he was given which stated that he was engaged as a permanent employee as opposed to as a casual,” he says.
Apart from being paid casual loading, Cambridge says there was no proof Forrow was a casual worker under the Waste Management Award he was employed under.
He says United Resource Management did not follow the conditions set out for casuals under the Award, such as paying Forrow by the hour, telling him he was a casual and giving notice of the likely number of hours he would need to work.
Cambridge says the company mistakenly believed it could treat Forrow as a casual worker because it paid him casual loading rates.
“However unless the minimum terms of the Award which prescribe the basis for establishing casual employment are satisfied the payment of casual loading does not operate so as to negate or avoid those minimum terms,” he says.
Unless the minimum terms are met, Cambridge says an employer cannot treat a worker as a casual employee.