Fair Work Commission: Upset and swearing truckie fairly dismissed

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Introduction

This decision relates to the dismissal of a driver of a bulk cooking oil truck and his (angry) response to “being cut-off” by a car driver. A case where a spur of the moment decision can lead to big trouble.

Life-Threatening Road Rage by Truck Driver was the email heading of complaint of a car driver against the applicant. Add to this an angry and upset truck driver’s account by telephone (“F’s” and “C’s”) to his manager (who was travelling in his car with his fiancé and young child), ended in the truckie’s dismissal.

Background

The applicant was employed by the respondent as a bulk oil tanker driver from 9 May 2018 until the dismissal on 20 January 2020. The dismissal, with a payment in lieu of notice, arose against the general backdrop of a traffic-related incident on 15 January 2020, and the alleged actions of the applicant in relation to that incident; and the contents of a telephone call to a manager to report the incident.

The applicant was driving a six-tonne vehicle at the time of the incident. Aspects of what occurred in the incident were captured on dashboard camera (“dashcam”) footage from another of the respondent’s trucks being driven by one of the applicant’s colleagues, which was not far behind the vehicle driven by the applicant.

The incident

The applicant’s evidence indicated matters including that on 15 January 2020 he was travelling in a company vehicle on a road where two lanes merge into one. A vehicle (“the red car”) sped-up beside him and cut him off, forcing him to brake heavily to avoid hitting the red car or, separately, a cyclist. The applicant’s first reaction was to beep his horn. The applicant made a right-hand turn where the driver of the red car continued driving erratically, and the driver cut-off the applicant two more times. There was an oversized truck which the applicant was trying to get around. Once again, the applicant was cut-off by the red car.

After continuing down a roadway with normal traffic flow the applicant and the red car approached an intersection, and the applicant attempted to merge into the right-hand lane. As the applicant was indicating to the driver of the red car to move over, the red car “sped up in the right lane to block [the applicant] from moving over” and the driver started beeping his horn at the applicant. It became clear to the applicant the driver of the red car “wasn’t going to let [the applicant] in the right-hand lane so [he] remained in the centre lane of traffic”.

When the traffic was stopped at traffic lights, the applicant was looking in his driver’s side mirror when he saw the driver of the red car exit his vehicle with something in his hand, and, in what that applicant considered was a threatening manner, slammed his car door shut and approached the applicant’s truck. The applicant exited his truck. The applicant indicated this was because he was feeling threatened by the other driver’s actions and his body language and was ready to defend himself. On the applicant’s account, the driver of the red car proceeded to record the applicant and scream abuse at the applicant. Upon realising that the driver of the red car was not going to physically attack him, the applicant “hopped back in” his truck. Separately, the driver of the red car then proceeded to “harass” a “colleague”, who was driving the second truck, allegedly “abusing him and threatening him and taking photos of his licence plate”.

At this point, the applicant thought he should take a photograph of the red car’s number plate, which he did before getting back into his truck for a second time. The applicant and the driver of the red car then resumed driving their respective vehicles and went their separate ways without further incident.

Company policy

Under the respondent’s policies, employees are to contact the relevant supervisor/manager to report work-related incidents. The applicant promptly telephoned the Manager of the ACT/NSW Branch of the respondent’s business, to inform him about the incident. The applicant said he was “still very shaken up” and “angry”. The applicant then recounted his description of matters involving the driver of the red car to the manager. As recounted in the applicant’s own evidence-in-chief, the conversation with the manager then continued in the following way:

“[The manager] then said, “calm down mate so what else has happened?” I then said to [the manager] “I want to cut that c**t off just to spite him, the f**king c**t. I should’ve run him off the road into a tram.” He told me “you can’t do that mate, so your response to him cutting you off is to cut him off?” I replied “yes, f**k him he nearly made me hit a cyclist mate I am still shaken by it I am p**sed off that he done that and then attacked me!”

The manager then said, “so do you think running him in to a tram is the correct response?” I replied, “I don’t care, death to the c**t.” he said that “you can’t react like that, to cut someone off out of spite.” I said, “I didn’t cut him off I am just angry at the whole situation.” He responded, “you need to calm down mate go take 10 minutes have a smoke and calm down before you start making deliveries.” I then told him “he got out of his car and took photos of mine and Johns’ truck. So, you might get a phone call or a complaint, that’s why I am ringing to let you know what’s happened.” He said, “just calm down mate take a break and once you’re calm carry on with your run.” I said “no worries. Talk to you later, catch ya” And the call ended.”

Unfortunately (for the applicant), when the applicant rang his manager, the manager was driving and had his finance and young child in the vehicle with him.

Swearing is workplace culture?

[13] As to what the applicant said, and considered in the context of the applicant’s evidence that swearing was part of the workplace culture, the manager’s evidence was:

“… I acknowledge that from time to time people do swear in the workplace. However, the odd swear word is one thing, but swearing profusely with nearly every second word being either “F” or “C’ in a completely other situation [sic]. I do not agree that the odd swear word is then allowing for open slather swearing when the person on the other end of the phone tells you that his family is present and to moderate your language. However, it was not only the swearing that was of concern. The vehemence of [the applicant’s] threat to the other driver was quite frightening.”

The “red car” version

At around 9.00 am on the same day the manager received a telephone call from the driver of the red car and listened to that person’s account of matters. The manager then escalated matters by contacting senior managers and HR personnel for advice and/or instruction. In consequence, the applicant was placed on paid suspension pending an investigation. As part of that investigation, the manager asked the driver of the red car to send his allegations in writing. Mr Rowland also viewed the dashcam footage from the second truck. (After viewing the dashcam footage, manager spoke with the second driver) about the footage that showed him interacting with the driver of the red car and showing potentially aggressive behaviour to the driver; the manager cautioned the second driver about this).

The driver of the red car and by then a complainant set out in writing his characterisation of what had occurred in an email with a subject line which read “Life-Threatening Road Rage By [respondent] Driver”. The complainant did not give evidence in the proceedings, and his name was redacted in an email which was in evidence (following upon his earlier request to the respondent concerning confidentiality). Given the complainant did not give evidence in the proceedings, what is said in his email was evaluated and “weighed accordingly”. The Commissioner explaining:

“The complaint is recounted in this decision because its contents form part of the fabric against which the decision was made to dismiss the applicant”.

Shortly stated, the complainant recounted in his email his account and perceptions of what had occurred on 15 January 2020. Relevantly, the complainant “sensed” that the applicant was trying to follow him for about 3 km and then engaged in driving which he considered to be frightening and life-threatening - in that the applicant, upon levelling with his car, (allegedly) deliberately and very noticeably swung his truck into the complainant’s lane almost forcing him to crash. Immediately thereafter, the traffic stopped due to red lights at an intersection and the complainant “jumped out of the car” to take photographs with his telephone. As recounted by the complainant, the applicant immediately got out of his car and started to approach him until he saw the camera. According to the complainant, the applicant “then quickly covered his face and turned around and gave me the f**k finger signal and got back in the truck.” The complainant also took photographs of the number plate of the second truck and the face of the driver and while doing so noticed a dashcam in the second truck. The complainant recounted how the driver of the second truck had immediately revved his engine and the truck jumped forward slightly, whereupon the complainant “threw [his] hands in the air in astonishment and asked the driver if he was going to run me down on the highway”. The driver of the second truck responded by saying “Yes I Will!”. Upon returning to his car, the complainant was informed by his wife that the applicant had approached the red car; his wife, the email continued, “who was already in a state of shock, said she felt very intimidated and fearful.” The complainant also recounted that he turned off the highway soon after and immediately contacted the Police and, later, the manager (whom he spoke of in favourable terms in relation to his handling of the initial telephone complaint).

Subsequent developments

Later that same day of 15 January 2020, the applicant was stood down pending a meeting about the incident.

Meeting and support person

Matters were put in motion to arrange a meeting with the applicant. The meeting initially was scheduled for 17 January 2020 but was rescheduled to 20 January 2020. Although the applicant wished to have the second driver attend the meeting as his witness/support person, the respondent did not consider this was appropriate given the second driver’s own involvement in matters and because the second driver may be subject personally to disciplinary action. In consequence, another work colleague was enlisted for the purpose of being a witness/support person for the applicant. A meeting was conducted on 20 January 2020 involving the applicant, his support person and managerial employees - and (via Zoom) the respondent’s Human Resources Manager.

The dashcam footage

Matters were outlined to the applicant by the respondent’s management relevant to the complaint by the driver of the red car, the dashcam footage and the statement prepared by the manager’s fiancé as to what she heard unfold in the applicant’s telephone conversation with the manager. The applicant was advised that the footage showed his truck swerving into the right-hand lane on two occasions; the applicant explained, in such respects, he was just trying to merge into the right-hand lane. When asked about his comments to kill and run the other driver off the road, the applicant responded: “Well I was angry because he just kept stopping me from getting into the lane”.

The dashcam footage showed the truck swerving into the right-hand lane on two occasions, in what looked to the managers “to be quite aggressive action by the applicant towards the driver of the red car.

Tit for tat

One of the managers said in the meeting it seemed the applicant was using the truck to intimidate and potentially run the other driver off the road. The applicant replied: “Well he wouldn’t let me in and had pushed in front which nearly caused an accident earlier” - to which a manager indicated that the applicant’s actions were more likely to have caused a severe accident. The applicant agreed he had continued to swear in his telephone conversation with the manager, notwithstanding that the manager asked him to stop several times. According to the evidence in the respondent’s case, the applicant “acknowledged that he had said that he wanted to smash the other drivers face and kill him. He tried to justify his actions by saying that he was upset.” The HR Manager said of the meeting:

“It was my observation of [the driver] during the interview, that he felt he was justified in being aggressive and trying to intimidate the other driver. He did not appear to show any remorse for his actions. His attitude was it was the other driver’s fault and he deserved to be run off the road. I was somewhat shocked at this attitude and glad I wasn’t sharing the same roads as he, as I felt there was a good chance he could do the same to someone else, in similar circumstances where he felt slighted by another driver.”

Decision to dismiss

The managers discussed the complaint by the driver of the red car and found it to be a credible account, especially as it tallied with what was shown in the dashcam footage. A number of matters were also discussed between the managers, including concern for the wife of the driver of the red car given her close proximity to the company vehicle as it swerved right. Further matters that were discussed included that there was company badging on the vehicle (as it would have, for example, reflected badly on the company if an accident occurred) and the telephone discussion in which the applicant reported matters to his manager. Discussion also ensued about the lack of any previous disciplinary matters involving the applicant and his length of service.

The manager described the outcome of the managers’ consideration of matters as follows:

“We were satisfied on the information before us that [the applicant] had deliberately driven in a dangerous manner out of anger at another driver. We were not satisfied that he had any credible excuse for doing so. We determined that this was in itself gross misconduct that could have caused a serious and possibly fatal road incident involving a [respondent] vehicle.

“We were also satisfied that [the applicant] in his phone conversation with me while I was in the car with [my fiancé] had acted inappropriately in threatening the life of another driver and continuing a swearing tirade after being asked to stop several times. We determined that this was further misconduct.

“On the basis of our discussions we were satisfied that it was appropriate to terminate [the applicant’s] employment for gross misconduct. The company could not condone nor risk this action happening again.

“We decided to pay him in lieu of two weeks’ notice, given it was just after Christmas.

“After about a 30-minute break for our discussions both [the applicant] and [his support person] were called back to the office. [The HR Manager] advised [the applicant] that his employment was being terminated for gross misconduct. I gave [the applicant] a termination letter.”

The Commissioner deciding

In deciding that there was a valid reason for dismissing the applicant, the Commissioner stated:

“Having regard to the evidence (including the dashcam footage, at the places described in transcript) and submissions, I am satisfied the respondent had valid conduct-related reasons for the dismissal directly related to wilful and deliberate gross misconduct. While there were differences in the evidence, there is enough even from the applicant’s own evidence to lead me to conclude that the applicant was indeed very angry at the driver of the red car and conducted himself inappropriately in the course of his driving duties in his employment with the respondent.

“The applicant’s own evidence was that he had been cut-off by the driver of the red car and this, in turn, resulted in a cyclist potentially being endangered by the applicant. There is nothing to contradict the applicant’s evidence in such respects and I accept it. Moreover, there was evidence of [the second truck driver], in which he described the driver of the red car as having cut-off the applicant and other drivers, and having been involved in “maniacal driving”; [the second truck driver] was resolute in his cross-examination that, on the basis of what he observed, the driver of the red car was a “crazed driver”. That the driver of the red car cut-off the applicant with the result he may have hit a cyclist did not mean that the applicant’s own responses were appropriate in his employment, let alone “proportionate”. “As the respondent submitted, and I accept on the balance of probabilities occurred:

‘Following this claimed cut off, the Applicant drove his vehicle to catch up with the other car and twice he deliberately verged his truck into that car’s lane, forcing the other driver to take evasive action’ and this was ‘deliberate and wilful unsafe action by the Applicant’…the applicant himself recounted to them a very short time after the incident. Even on the applicant’s own account, he was then still angry and had stated he had wanted to run the driver of the red car off the road – which is, it cannot go unremarked, effectively what the driver of the red car alleged the applicant had done in his driving/swerving”.

Commentary

Whilst the Commissioner found there was no premeditation in relation to the dismissal (ie the respondent has already made up its mind to sack him prior to the meeting), I disagree. The termination letter was handed to the applicant, which given the circumstances and timing was a little too convenient.

Better to send on such a letter later that day or the next day.

Also, the aspects of driver training were not explored. Such (induction) training should clearly set out how professional drivers should respond in such situations. I say this because I take into consideration it being two weeks before Christmas and nerves can become frazzled, additional traffic on the road, etc.

Overall, I think a first and final warning would not have been sufficient to protect the respondent’s brand, and whilst the process could have been avoided (a big “maybe”) a short toll-box meeting on driver behaviour overall and especially during the “silly season” may have avoided the behaviour. As I said “maybe”.

The swearing and (idle?) threats were, whilst being unfortunate, should have been given more sympathy given the circumstances?