Both parties culpable in unfair dismissal case


Employer 'unfairly' dismissed driver for disobedience, not misconduct

Both parties culpable in unfair dismissal case
The FWC has suggested further consequence for both parties

 

A driver hauling an ‘unroadworthy’ trailer, and falsifying his logbook, who was dismissed by his employer not for misconduct but for refusing to deliver another load while in breach of fatigue laws, has won an unfair dismissal case at the Fair Work Commission (FWC).

In John Phillips v Lumbars Transport Pty Ltd, the commission heard the matter arose between April 3 and 10, 2019, when the driver undertook an extensive trip from Perth to Queensland and home to Deniliquin, NSW.

TRAILER 

On return from the Perth leg, at Yunta, SA, the driver noticed smoke from the brakes underneath the second trailer.

The commission heard Phillips "endeavoured to telephone his employer Mr Eddie Lumbar, without success. The Applicant then telephoned a work colleague and asked him to make contact with Mr Eddie Lumbar. The work colleague called the Applicant and reported that Mr Lumbar had said words to the effect of 'what the fuck does he want me to do about it'"

Phillips determined the brake booster had failed and needed to be replaced. He did not have a replacement booster kit, and upon enquiry neither did local business Yunta Transport.

The commission adds, "to effect repairs by mechanically winding the boosted brakes back of the drums and then cut the airlines that drive the booster breaks and clamp the airlines shut so that they did not leak air from the remainder of the pneumatic brake system. The Applicant understood that as a result of his actions the trailer was now 'technically unroadworthy'.

"The Applicant then proceeded to Broken Hill. He had two new tires fitted to the truck. He did not get the brakes on the trailer repaired."

Phillips continued his drive over the coming days, eventually reaching Longreach, Queensland, where he unloaded the remaining freight.

"He made contact with his employer. Either Frank or Eddie Lumbar told the applicant to load up the second trailer and 'piggy-back' it home on the first trailer. The Applicant followed the direction."

It was while stopping overnight in Wyandra, that Phillips realised that he was overdue for a compulsory 24-hour rest period.

LOGBOOK

On Wednesday, 10 April 2019, despite being required to take a compulsory 24-hour rest period, Phillips decided to proceed home to Deniliquin, falsifying his logbook.

That morning he phoned Eddie Lumbar, who asked him to divert his trip to Parkes, NSW, to collect another load of freight.

"The Applicant told Mr Lumbar that he had a problem with his logbook and he was overdue for his scheduled 24-hour break.

"Lumbar said words to the effect of ‘it’ll be alright, go the back way’."

The commission notes the trip from Wyandra to Deniliquin was about 12 hours. The diversion to Parkes would have added another 24 hours (because of the time to drive and load) to the trip.

In a later phone call, the driver said he "was not prepared to take the risk and go to Parkes."

There is a dispute about how Lumbar responded – but the result was the driver was sacked at that point.

Another driver was sent to Parkes to collect the load at an additional cost to Lumbar.

"GO THE BACK WAY"

The commission heard both parties’ accounts of the exchange.

Phillips’ account was:

• The Applicant: "you know the problems I’ve got with my logbook and the trailer brakes".

• Mr Lumbar: "look John that’s just a small problem."

• The Applicant: "it’s not a small problem."

• Mr Lumbar: "if you coming straight home, when you get home you can take your shit out of the truck and fuck off."

Lumbar’s evidence was:

• The Applicant: "there is a leaking brake booster on one of the trailers. I won’t go to Parkes."

• Mr Lumbar: "Use the other trailer.

• The Applicant: "I’m out of hours".

• Mr Lumbar: "have your 24 hour break then pick up the crate" (from Parkes).

• The Applicant: "I’m not going to do it".

• Mr Lumbar: "If you can’t do that, you can go".


How the FWC upheld a driver dismissal over a microsleep event


In determining if Lumbar did in fact tell Phillips to take a 24-hour break before travelling to Parkes, the commissioner ruled that this was invalid as "at the time the conversation happened the Applicant was already in breach of his obligation to take a compulsory 24 hour break".

He was critical of the "go the back way" phrase, which he interpreted as a direction to take a route to avoid the attention of road authorities.

"[Lumbar’s] attempt to characterise his phrase "go the back way" as directional advice was far-fetched. It was clear that he was suggesting that the Applicant might better avoid detection by authorities if he went "the back way."

"Mr Lumbar was focused on the collection of the crate in Parkes, NSW. He was less focused on the genuine issues being raised by the Applicant."

RULING

The commissioner said he viewed Phillips "as a witness of truth" and found the dismissal, within context, was harsh and, consequently, unfair.

"He spoke honestly about falsifying his logbook. He openly conceded that he drove home to Deniliquin illegally. He conceded he was annoyed by what he considered to be Mr Lumbar’s lack of civility towards him on 10 April 2019.

"There was no way he was going to go to Parkes, NSW. He considered it too great a risk of getting caught (a greater risk than travelling directly to Deniliquin in breach of the compulsory 24-hour break requirement).

"I find that the direction to divert to Parkes, NSW was not lawful or reasonable.

"Mr Lumbar did not invite the Applicant to take his 24 hour break before going to Parkes. Mr Lubmar already knew that the Applicant was in breach of that requirement.

"The Applicant’s failure to comply with the direction to divert to Parkes, NSW was not a valid reason for dismissal."

CRITICISM

Tthe commissioner was reticent to award Phillips lost pay for the dismissal period due to his own transgressions.

"There must be some consequence for his breach of important road rules requiring compulsory breaks."

He notes that breaching the 24-hour rest period counted as misconduct and was a valid reason for dismissal.

"The Respondent did not elect to terminate the Applicant’s employment for that reason, but it was entitled to do so.

"However, having regard to the findings I made above about Mr Lumbar’s direction to the Applicant that he divert to Parkes, NSW it would appear that the Respondent was prepared to be complicit in the breach."

Due to this, and taking into account Phillips’ life circumstances (68-year-old living in Deniliquin with limited prospects for re-employment elsewhere before retirement), he ruled Phillips be reinstated into his employment as a driver and there be a restoration of lost pay.

Most damningly, however, in his assessment of the case, the commissioner suggested further action be taken against the parties for their behaviour in the matter.

"There should be a consequence for both the Applicant and the Respondent for their respective preparedness to ignore rules around fatigue."

 

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