Company evidence dearth and GPS limits on show at FWC


Drivers win cases, with defence deficits to the fore, though ‘misconduct’ sees payouts fall

Company evidence dearth and GPS limits on show at FWC
Lack of supporting evidence for GPS data questioned in FWC finding

 

Two truck drivers have won recent Fair Work Commission (FWC) unfair dismissal cases in circumstances where their former employers have had difficulties providing evidence effectively or at all.

Despite that, the FWC was still able to provide companies some succour on payout amounts due to the drivers' actions.

The Green Gables Express case in New South Wales relates to a dismissal due to speeding and hinged on whether its former driver had been given sufficient warning both on the company’s zero-tolerance policy to speeding or after alleged incidents of speeding.

But it also brought into question use of evidence from a GPS system, described only as "a Navman", and the possibility, as the driver claimed, that there was a disparity between what speedo of the truck in question reflected and the speed the GPS recorded. Teletrac Navman confirms that it has no record of the device in question being one of its own.

Green Gables’ submission does note that "...the Australian design rule for vehicle speedometers provides that they have a tolerance of a minimum of 4% and a maximum of 8% against the actual speed of the vehicle".  

In a statement in his ruling that may inform similar cases in future, FWC vice president Adam Hatcher notes that:

  • the GPS does not show the road speed limit at any location
  • speeds recorded vary significantly second by second, even where it is clear that the vehicle is on the open road and travelling at speed and Variations of up to 5 km/h from one second to the next are common.

"This leads me to conclude that the data should be analysed on the basis that, in order to ascertain whether there has been any ‘speeding’ in the conventionally understood sense, it is necessary to identify a reasonable period over which the [truck] has travelled over the speed limit," Hatcher says.

"There is no evidence of the actual speed limits over the route, so the best that can be done is to apply the rule that non-urban roads which are not motorways have a default speed limit of 100km/h, while recognising that poorer quality or more difficult roads may be sign-posted at 90km/h or 80km/h.

"It is common ground that on no part of the route was there a speed limit higher than 100 km/h."

That said, while there was speeding "in the strict sense", three "mitigating factors" are noted:

(1) The periods of speeding demonstrated are generally brief, and the occasions on which there were more sustained periods of speeding are few in number

(2) Overwhelmingly, where the speed exceeded 100km/h it only exceeded it by less than 5 km/h, and often it was only less than 2 km/h. Having regard to the difficulty earlier identified with the speedometer in the Isuzu, as well as the speedometer design rule tolerance of 4-8%, it is more than possible that the Isuzu’s speedometer did not show that he was exceeding 100km/h

(3) The occasions on which he was recorded as travelling more than 5km/h over 100km/h were generally only for one second at a time, and at most for only a few seconds.


See how the FWC was treated in the federal Budget, here


Hartcher’s findings emphasise that speeding is a valid reason for dismissal and that though the Heavy Vehicle National Law (HVNL) did not apply because the truck used was less than 4.5 tonnes GVM, Green Gables was "nonetheless exposed to liability under workplace health and safety laws in the event of any accident and injury".

However, lack of evidence from the company meant the weight of its evidence on that point could not be ascertained.

Hartcher views the sacking as harsh and unjust.

Harsh because the response circumstances surrounding damage caused by a collision with a kangaroo and the driver’s response to it, which played a part in the dismissal, was disproportionate

Unjust because the driver denied procedural fairness as he "was not notified of the reason for his dismissal prior to being informed of his dismissal, and accordingly was not given an opportunity to respond".

While the driver could have been inline for a gross payout of $63,654.24 if he failed to find re-employment in the next 12 months, his prospects of reemployment were deemed to be good, so that was reduced to $47,740.68.

The possibility that he may have ended employment for "some other reason" reduced that to $38,192.54.

That Green Gables is small transport firm operating on low industry margins and has limited financial capacity to cope with unexpected expenses was accepted in mitigation and the figure was reduced $30,554.

Despite the questions surrounding the accuracy of the speedo, "misconduct in engaging in occasional speeding clearly contributed to a very substantial degree to the decision to dismiss him" and the figure was further reduced by a hefty 40 per cent to $17,415.80.

The total is to be paid in 28-day instalments "in order to mitigate any potential cashflow effects on Green Gables’ relatively small business".

In the case involving Adelaide Refrigerated in South Australia, it gave no evidence nor did it appear before FWC when the case was heard.

Its former driver sought compensation rather than reinstatement.

As the company gave no evidence, the assertion that his dismissal lacked procedural fairness was not contradicted and there could be no mitigation of the effect of the order on its viability.

Given his short employment history with the firm, compensation of $3,281 plus superannuation is the outcome.

The cash amount was 30 per cent less than it might have been as he left the keys to his B-double in the ignition after abandoning the truck when it ran out of fuel.

The driver’s evidence was that the firm’s fuel payment policy was unsatisfactory and he had been unable to contact the company when the truck was running low.

 

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