Rand wins appeal against speeding driver

Transport operators may have more power to sack drivers for disabling speed limiters or who are caught by GPS systems breaking road laws

April 21

Transport operators may have more power to sack drivers for disabling speed limiters or who are caught by GPS systems breaking road laws.

The full bench of Fair Work Australia this month overturned an unfair dismissal decision against Rand Refrigerated Logistics after it fired Glenn Gervasoni based on GPS information.

In the original case, Commissioner Wayne Blair ruled Rand’s termination of Gervasoni was harsh because of anomalies in the speed and location data of the GPS, forcing the company to pay $29,484.04 compensation.

But the full bench accepted evidence the tool was accurate to within 0.1 km/h 95 percent of time and Gervasoni had driven more than 100km/h 54 times during a trip from Derrimut in Victoria to Tarcutta in NSW despite the vehicle having a 100km/h limiter.

"In our view, there was a valid reason for Rand to terminate Mr Gervasoni’s employment based on his conduct being his disabling of the speed inhibitor on the prime mover he was driving …," the full bench wrote in its judgement.

"The speed at which heavy vehicles are driven is a legitimate concern of those in the road transport industry because of the potential for high speed to endanger the safety of road transport employees and other road users."

The full bench dismissed the driver’s claims he did not fiddle with the limiter and ruled there does not need to be evidence of tampering to show it happened.

"The evidence indicates he knew how to disable the speed inhibitor and the data on his speeding suggests the speed inhibitor must have been disabled," the judgement reads.

"The evidence the speed inhibitor had not been tampered with does not preclude a conclusion that it was disabled at some stage."

The full bench also found Rand complied with its industrial relations obligations by notifying Gervasoni of why he was being terminated and giving him an opportunity to respond.

"In all the circumstances, we conclude the termination of Mr Gervasoni’s employment by Rand was not harsh, unjust or unreasonable," the judgement says.

In the original matter, Blair criticised the reliability of Rand’s GPS system because it showed Gervasoni speeding down a NSW domestic street at 114.6km/h and travelling 123.7km/h on another street with a sharp right hand turn.

In its appeal, Rand submitted evidence that Gervasoni’s 460km trip from Derrimut to Tarcutta in four hours and 45 minutes showed he was speeding because he averaged 96.8km/h.

The full bench ruled that the number of towns Gervasoni had to travel through and the hills he had to climb meant it was unlikely he could have reached that average without exceeding 100km/h.

The original case also clarified a transport operator's obligation to notify drivers if a GPS unit is installed in a vehicle.

The primary function of Rand's GPS was to monitor the temperature of refrigerated freight and tracking speed was incidental to its main purpose.

Because of this, Blair found the device was not bound by the Surveillance Devices Act and Rand had no responsibility to inform Gervasoni.

He also accepted the GPS data as evidence because it was not bound by the Act.

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