Blenners incurs wrath of Fair Work Commission over unfair dismissal, while Queensland Government investigates business for fatigue management compliance
By Brad Gardner | May 28, 2013
Blenners Transport is facing a compensation claim of more than $40,000 for sacking one of its managers, as the Queensland Government continues to investigate the business for compliance with fatigue management laws.
The Fair Work Commission (FWC) upheld an unfair dismissal claim from Stephen Gleeson, who lost his job as operations manager of Blenners Tully depot in August last year for alleged customer complaints relating to his performance.
But in a ruling that showed the pitfalls businesses face when dismissing staff, Commissioner Paula Spencer found Blenners failed to meet its obligations under the Fair Work Act when dealing with Gleeson.
Spencer says the company decided to sack Gleeson, who took on his role in December 2011, before a meeting was held with him and before he had been made aware of the alleged complaints.
Furthermore, Gleeson was not given the opportunity to argue his case against termination or have a support person present at the meeting – two key conditions in the Act that must be met.
“There were significant procedural deficiencies in the manner in which the termination was effected, that is the Applicant was not aware of the nature of the meeting that lead to his dismissal,” Spencer says in her written judgment.
“He was not aware of the performance issues or given an opportunity to respond or have a support person present.”
Spencer agreed Gleeson should be compensated and will make a decision on the amount on May 30. The Transport Workers Union (TWU), which represented the former owner-driver during proceedings, wants $42,500 – the equivalent of 26 weeks of pay.
She says Blenners’ approach put Gleeson at a significant disadvantage, while the lack of a dedicated human resources branch left the company exposed.
“The lack of these resources and the absence of particular advice from specialists on the termination process has negatively impacted on the procedural fairness afforded to the Applicant,” Spencer says.
During proceedings, the FWC was told Gleeson was in his role when the Queensland Department of Transport and Main Roads began investigating Blenners for compliance with fatigue management laws.
The department began sniffing around in February last year and conducted formal interviews with company drivers in August, around the time Blenners’ compliance manager resigned.
Gleeson says he tried to improve compliance within the company prior to the investigation and that the arrival of Transport and Main Roads caused a lot stress on him and other employees.
While noting the investigation, Spencer added no clear information was raised during the unfair dismissal hearing relating to any alleged deficiencies on the part of Blenners.
“The issue of compliance investigation was not a matter for consideration before the Commission,” she says.
The department’s investigation continues.
The FWC hearing pointed to tensions between Gleeson and consultant Ray Lamari, who joined Blenners in April last year, as a catalyst for Gleeson’s departure.
Gleeson fired off a terse email to Lamari and senior management in August after Lamari excluded him from the decision-making process on compliance issues.
Spencer found the email contributed to Gleeson’s sacking, although owner Les Blennerhassett denied it played a part.
“The email had a belligerent, demonstrative tone and was manipulatively forwarded to a range of other employees,” Spencer says.
Blennerhassett told the FWC he received a call from a major customer while attending the Banana Race Day event at Innisfail. He claims the customer complained about Gleeson and that he made the decision then to sack him. However, the union produced evidence showing the race day was held after Gleeson was fired.
Blennerhassett claimed Gleeson’s performance issues included a failure to properly diarise truck availabilities for pickups, not returning customer calls and not following company policy of directing work to employee drivers before subcontractors. Gleeson was not given any prior warnings regarding his performance before his dismissal.
Furthermore, a document handed to Gleeson at the August meeting did not list customer complaints as a reason for his dismissal. Spencer says a second document was created after Gleeson’s departure containing new allegations, including spreading rumours about Lamari and receiving customer complaints.
“He had not received any detail regarding the complaint or an opportunity to respond to any warnings,” Spencer says.
She also labelled Blenners’ actions harsh because Gleeson had to relocate his family to take up the position of operations manager.
Spencer says Blenners could have implemented a performance management plan for Gleeson and monitored the situation with its customers.
“There was an onus on the Respondent to manage the Applicant in a fair manner. Given the Applicant had moved his family to Tully and was invested in making the role work, it is anticipated ongoing employment with appropriate discussions and monitoring should have been trialled,” she says.
The Queensland TWU was crowing after the ruling, with State Secretary Peter Biagini calling it a great outcome for Gleeson and the transport industry.
“Blenners are an example of what companies and bosses can and cannot do and the decision by [the] Fair Work Commission will help ensure other companies comply to industry rules and standards,” he says.
The family-owned Blenners Transport began in 1988 and is predominately involved in carting fresh produce from its Tully headquarters to sites around the country.
ATN has contacted Blenners for comment.