Trevor Grant Taudevin v Brambles Australia Ltd [1995] IRCA 229

CATCHWORDS INDUSTRIAL LAW - termination of employment - whether termination harsh unjust or unreasonable Industrial Relations Act 1988, s 170DE No. QI 151 of 1994 TREVOR GRANT TAUDEVIN v BRAMBLES AUSTRALIA LTD MOORE J BRISBANE 1 JUNE 1995

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. QI 151 of 1994 ) QUEENSLAND DISTRICT REGISTRY ) BETWEEN: TREVOR GRANT TAUDEVIN Applicant AND: BRAMBLES AUSTRALIA LTD Respondent JUDGE: Moore J PLACE: Brisbane DATE: 1 June 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application is dismissed. 2. Costs are reserved. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. QI 151 of 1994 ) QUEENSLAND DISTRICT REGISTRY ) BETWEEN: TREVOR GRANT TAUDEVIN Applicant AND: BRAMBLES AUSTRALIA LTD Respondent JUDGE: Moore J PLACE: Brisbane DATE: 1 June 1995 REASONS FOR JUDGMENT This is a review under s377 of the Industrial Relations Act 1988 ("the Act") of the exercise of the power by a Judicial Registrar to dismiss an application made by Mr Trevor Taudevin under s170EA of the Act. The application was filed on 10 June 1994 and finally determined in January 1995. As a result of a direction of Spender J this review is being heard by reference to the transcript of the evidence given before the Judicial Registrar and exhibits tendered. Mr Taudevin commenced employment with Brambles Australia Ltd ("Brambles") on 2 November 1993 as a forklift driver. As a result of a medical examination Brambles required to him undertake, it emerged he had a back problem that meant he could not work as a forklift driver. Brambles then sought to place him in other work with the result that from approximately 9 February 1994 he worked as a Fleet Controller. His duties were to coordinate and control the transportation of containers including their pick up from the wharves of Brisbane. He learnt what was required in the position as he went along though he also underwent more formal training. In the review, his counsel accepted that his performance in that position had not been satisfactory. Indeed his counsel relied upon his unexpected assumption of the job of Fleet Controller from the position of forklift driver and the consequential difficulties Mr Taudevin had as matters that supported his application. In any event it is plain from a letter dated 10 May 1994 he was given on that or the following day, his employer was dissatisfied with his performance. The letter concluded: "Should there be any further failings on your part to meet the performance standards expected, your employment will be immediately terminated and one month's pay provided in lieu of notice." Nothing occurred for the following week or so that might have enlivened this paragraph. However on 17 May 1994, Mr Taudevin had to arrange for the transportation of a container from Fisherman's Island which was to be delivered to the yard of United Transport Services ("UTS") in Rocklea. UTS is the business enterprise of Brambles for which Mr Taudevin worked. On that day Mr Taudevin received documentation from the shipper, P & O Containers Ltd, which contained two pieces of relevant information. It was a standard form containing details of the container. A box marked "Hazard" was marked with a cross, which, viewed in context, signified that the container was of this character. At another point is a space above which is marked "Haz: IMDG/UN No code/description" which firstly is a reference to the Industrial Maritime Code used for dangerous goods, secondly the United Nations code number which identifies precisely the hazardous goods and thirdly the description of the goods. The space had been filled in with the entry "3.3 - Flammable Liquids Flash Point Above +23C". Mr Taudevin recognised that this entry might indicate that the goods were dangerous goods. If they were it would have been necessary for the driver carrying the container to have had in the cabin of the truck an Emergency Procedures Guide ("EPG"). The EPG would contain instructions on what should be done with the dangerous goods in the event of an accident or spillage. It would have been Mr Taudevin's duty to issue the EPG. However when he saw the entry, Mr Taudevin believed the reference to "3.3" was a reference to the Australian Dangerous Goods Code ("Australian Code") and believed it was a reference to a product that was no longer treated as dangerous goods. He consulted another Fleet Controller and then Mr Bradley Caton who was the Assistant Dangerous Goods Officer. Mr Caton's and Mr Taudevin's account of their conversation differed in a material respect. They both agreed there was a discussion about the document and its meaning. Mr Taudevin said in his statement made on 12 December 1994 that Mr Caton said the goods were "declared non-dangerous" and confirmed they would not need any documentation to pick them up. Mr Caton said in his affidavit sworn on 8 December 1994 that he told Mr Taudevin: "Something is not right with the paper work here, you should check it out." A note made by Mr Caton on 19 May 1994 records that he told Mr Taudevin that 3.3 meant combustible liquids which is not classified as a dangerous good but the description of the goods indicated it constituted dangerous goods. He also records he told Mr Taudevin that there was something wrong with the document and that he, Mr Taudevin, should check it out. As a matter of fact, so I was informed, 3.3 signifies in the International Maritime Code that the goods are dangerous goods, 3.3 was used to signify combustible goods but not dangerous goods in the Australian Code that was superseded in April 1993, and 3.3 is not used in the Australian Code that is now in use and was in use in May 1994. Under the present Australian Code the relevant designation for the goods in question is class 3. I have read the evidence of Mr Taudevin and the evidence of Mr Caton given orally before the Judicial Registrar and it is difficult, reading the evidence, to discern whose account of the conversation is correct. It would have been curious, on Mr Caton's version of events, for Mr Taudevin to have ignored Mr Caton's advice given that Mr Taudevin had taken the trouble to consult him in circumstances where his job was at risk if he failed to perform to the standard demanded in the letter of 10 June 1994. It is not as if Mr Taudevin blithely ignored the perceived ambiguity in the document. Equally, however, it is unlikely that Mr Caton would have viewed the information on the document as indicating unequivocally and unambiguously that the goods were not dangerous. However, for reasons which emerge shortly, it is unnecessary for me to resolve this conflict in the evidence. I should add, however that even were I to accept Mr Caton's account of what happened, he showed what, in my view, was a somewhat casual response to Mr Taudevin's approach to him. He identified a problem, failed to recognise that "3.3" related to the International Maritime Code and not the Australian Code, and simply placed squarely on Mr Taudevin's shoulders the responsibility of resolving an issue that may well have required his assistance. The following day the container was picked up by a driver dispatched by Mr Taudevin. He had no EPG. The driver found the container had signs on it signifying that it contained class 3 dangerous goods. The driver rang Mr Taudevin who instructed him to remove the signs which he did. This was observed by officials from the Department of Transport which led to the exposition of the whole incident. If at the time of the call from the driver Mr Taudevin believed the goods were not dangerous because, on his account, he had been told so by Mr Caton the day before, he was nonetheless not justified in telling the driver to remove the signs. At the very least, he should have made further enquiries within UTS and/or of P & O Containers Ltd. What he did was irresponsible and potentially quite dangerous. His explanation was that he believed it would have been unlawful for the driver to have carted goods that were not dangerous in a container marked as if they were. He was not cross examined on this belief. However I find it a rather facile explanation for directing the driver to remove signs that should have, in my opinion, on any reasonable view aroused suspicion that would have warranted further investigation. I view with some sympathy the circumstances Mr Taudevin found himself in. He was in a position, the duties of which he was essentially ill-equipped to perform and perhaps being required to do them with inadequate training. I nonetheless have concluded that the incident of 18 May 1994 taken together with his accepted earlier poor performance provided a valid reason for his dismissal as that expression appears in s170DE(1). I have also concluded that his termination was not harsh, unjust or unreasonable and, in reaching this conclusion, I have been substantially influenced by the circumstances in which he came to be employed as a Fleet Controller. Mr Taudevin was employed as a forklift driver. Unable to do that work, he was offered work as a Fleet Controller which was a job, on his own admission made through counsel, he did not do well. To that extent, Brambles was endeavouring to assist Mr Taudevin. No other work was available. His direction to remove the signs was a significant error of judgment and could reasonably have been viewed by Brambles as the final act of any employee who was not discharging his duties satisfactorily which justified dismissal. I dismiss the application. I reserve the question of costs.