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DOWN UNDER TRUCKING: drug-driving kills truckers; court orders re-hire of dodgy truck loader; speeding trucker wins US$12k compensation

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Drug use caused crash that killed truck driver and passenger, Coroner rules

Coroner Elizabeth Ryan of the NSW Coroners Court has concluded that Cameron Bloomfield (29) and his partner, Meaghan Bird (27), died as a consequence of drug use that caused driving impairment. That led, in turn, to their heavy freight vehicle, a prime mover and two trailers fully laden with flammable chemicals, to leave the road, roll over and catch fire.

Bloomfield’s driving was likely impaired owing to the effects of the methylamphetamine that he had consumed. Both Baird and Bloomfield had “toxic to lethal” levels of methylamphetamine in their post-mortem blood samples.

Bird died directly as a result of fatal head injuries when the truck rolled over. Bloomfield died directly because of inhalation of smoke as the truck caught fire when it rolled.

Both Baird and Bloomfield died in a single vehicle crash on the Pacific Highway on the mid-north New South Wales coast on April 10, 2014.

On April 8, 2014, Bloomfield, accompanied by Baird, were driving the 936 kilometer (582 miles) Brisbane-Sydney route on behalf of Archerfield Transport & Storage, a sole proprietorship owned by Allen Mark Aitchison. Archerfield owned a freight depot in Brisbane. Aitchison directed the use of heavy freight trucks and scheduled operations.

Bloomfield and Baird arrived in Sydney early in the morning of April 9. During the day, Bloomfield was contacted “several times” by Aitchison during “what was supposed to be his seven hour continuous rest break”.

Bloomfield, again accompanied by Baird, started off from Sydney en route for Brisbane at about 20:30pm.

The vehicle, a 2005-built prime mover, was towing two trailers and was hauling a load of corrosive chemicals, paint thinners and other flammable and hazardous materials.

A witness stated that at 03:00am, about 175 miles to the north east of Sydney, Bloomfield’s truck overtook his car. The witness saw the car drive off the left side of the road, fall over, and slide. The cabin caught on fire and spread to the trailers.

Police and other emergency services arrived to find “the cabin and trailers were engulfed in flames. The heat was intense and aerosol cans from the load were exploding into the air”.

It took firefighters at least two, to two-and-a-half, hours to put the fire out before the two bodies were retrieved.

Forensic examiners were unable to say why the vehicle left the road. There was no evidence of braking or sharp turning, which would suggest the truck was out of control. There were no other vehicles. There was no evidence of mechanical defects in the prime mover or the trailers.

The post-mortem examiner discovered “toxic to lethal” levels of methylamphetamine in the blood samples of Baird and Bloomfield. A specialist toxicologist concluded that they had ingested the drug within “a few hours” of their deaths. In her opinion, the toxicologist believed the drug could have contributed to the crash by impairing the driver’s ability or it could have caused the driver’s death by coma, respiratory depression or a fatal heart attack.

The Coroner accepted the conclusion that a toxic-to-fatal level of drugs in Bloomfield’s blood explained the loss of control of the truck.

It was also considered whether fatigue had any role in the crash.

A week before the fatal crash, Baird’s parents visited the couple at their home. Baird was apparently worried that Bloomfield was “so exhausted” from driving that he might fall asleep at the wheel, according to Baird’s mother. She also described a dinner with Bloomfield who complained of being exhausted from work. The coroner also noted that there were statements from people in contact with Bloomfield on the day of the crash saying he looked tired or that he had been complaining of a lack of sleep.

Following the crash, Aitchison and various others at the freight depots in Brisbane and Sydney were charged, tried, convicted and fined in relation to fatigue related offenses. These included failing to take all reasonable steps to ensure that business practices did not cause Bloomfield to drive while in breach of work-rest hours; there was no system to check the work diaries of drivers; there was no fatigue management training for drivers; there was no use or monitoring of in-vehicle GPS systems; there were no trip plans that allowed drivers to complete trips other than within strict time limits. Truck loaders were charged with failing to take reasonable steps to ensure Bloomfield did not driver while apparently fatigued.

However, despite all that evidence, the Coroner could not conclude that fatigue was a factor. And that’s because Baird herself was known to have gotten a heavy freight licence so she could help Bloomfield with driving when he got tired.

“In these circumstances it is not possible to exclude the possibility that Ms Baird drove the vehicle for some periods during the nights of 8 and 9 April. Consequently it is not possible to be certain about the number of hours Mr Bloomfield himself was driving during this period. It is for this reason that I am unable to make a positive finding that driver fatigue on Mr Bloomfield’s part caused the fatal crash,” the Coroner said.

Both Baird and Bloomfield left behind parents and siblings. Bloomfield also leaves behind two children from an earlier relationship.

“The crash which took the lives of these two people was shocking in its circumstances. And it has left parents, brothers and sisters, and children grieving the loss of their beloved family member. On behalf of all of us at the Coroner’s Court I hope these families will accept our sincere sympathy for their loss,” the Coroner said.

Labor court forces re-hire of truck-unloader validly fired for negligence

Steelworks BlueScope Steel has been ordered by the Fair Work Commission (a type of employment tribunal) to rehire a negligent truck-unloader, Mr Zaki Habak, who negligently tipped a very heavy steel coil onto a walkway.

Employees cannot be fired in Australia without just cause. Specifically, under the Fair Work Act, employees are protected from “unfair dismissal,” which happens if the termination of employment was “harsh, unjust or unreasonable”.

A person who is fired for an invalid reason will have been unfairly dismissed. Businesses also have to follow fair and reasonable procedure in all ways at all times. Specifically, employees must be warned about their performance in advance, they must be notified of the reason for a potential firing, they must be given an opportunity to have a support person attend any disciplinary meetings, and they must be given an opportunity to any accusations against them.

An investigation by the employer concluded that crane driver Mr Zaki Habak had worked in an unsafe way in breach of the company’s critical safety procedures and policies. It also noted that he had been repeatedly warned about working in an unsafe manner and that he was on his final warning. The company concluded Habak was incapable of working safely as the driver of a crane to unload trucks and fired him.

In Zaki Habak v BlueScope Steel Limited, Commissioner Riordan of the Fair Work Commission ruled that BlueScope had a valid reason for firing Habak. He further ruled that the company had complied with all of its procedural obligations.

However, Commissioner Riordan went on to rule that the BlueScope’s dismissal of Habak was “harsh and unreasonable”.

“The tipping of a coil where there was no damage to the coil or cost to the Respondent, in a situation which did not provide an imminent risk of injury to another person whilst using a crane which was not operating properly, does not justify or warrant a future of personal and economic devastation to [Habak]. The penalty of termination was disproportionate to the act of tipping the coil,” the Commissioner ruled.

Habak then asked for the Commissioner to order reinstatement. The company resisted that request, arguing it had lost trust and confidence because it was not satisfied that Habak would work safely in the future.

Commissioner Riordan commented that there was “no doubt that the attitude of [Habak] needs to change. He needs to take more care in undertaking his role”. However, he then ordered the reinstatement of Habak to his former role.

Court awards speeding truck driver US$12k after being unfairly fired

A truck driver who was fired after repeatedly speeding, and who hit a dead kangaroo, has been awarded A$17,416 (about US$12k) by a labor tribunal because he was unfairly fired.

Australia requires there to be a just cause, and fair procedure to be followed, before the job of an employee can be terminated. A dismissal is unfair if it is “harsh, unjust or unreasonable”. There also has to be a “valid” reason for dismissal. Employers must also follow fair procedure in every way at all times during a potential dismissal otherwise the dismissal will be unfair. An unfair dismissal finding renders the company liable to pay compensation and / or it could be forced to re-hire the employee on the same terms and conditions.

Truck driver Rodney Wilkins was driving a Green Gables Express truck at speed in Outback Australia on November 22, 2018, when he hit the body of a dead kangaroo that was lying on the road. That caused damage to his truck. It sustained a damaged bull bar, crushed cabin grill and ruptured radiator. Wilkins later stopped at a petrol station to check for damage.

The company reviewed the in-cab second-by-second GPS tracking data and concluded that he was speeding by driving 98 kilometers an hour in an 80 kilometer per hour zone (US 61mph in a 50 mph zone). The data also confirmed that Wilkins did not immediately stop at the side of the road to check for damage but that he had stopped at a later time. GPS data also showed a pattern of repeated speeding generally at a variety of locations over a period of time. Sometimes that speeding was considerably in excess of the locally sign-posted speed limits.

Because the company had zero tolerance for speeding (both on the day of running over the dead kangaroo and more generally) and because he had not immediately stopped to check for damage to the truck, Wilkins was fired.

Wilkins then sued the company for unfair dismissal.

There were two main problems with the company’s conclusion that he was speeding. Firstly, the speed tracking data of the GPS box potentially has a plus/minus margin of error of up to eight percent faster or slower than the truck is actually driving. So Wilkins could have been driving a few km/h slower than the 98 km/h that the GPS had recorded.

Secondly, the GPS did not show the speed limit on the road nor was the speed limit posted on that Outback road. Aussie road rules say that the default speed limit on unmarked non-urban roads is 100 k/mh. So, regardless of the accuracy of the GPS at that exact time, it nonetheless could not be used to prove that Wilkins had exceeded the speed limit at that exact point in time.

The Commissioner held in Wilkins v Green Gables Express that not immediately stopping to check the truck was not a valid reason to dismiss. There could have been roadside safety issues at that point in the road making it unsafe to stop. It was also held that the allegation of speeding at the time of hitting the kangaroo could not be proved. And so dismissal on that basis was also not valid. However, the Commissioner was satisfied that Wilkins was repeatedly speeding in his general driving and that was a valid ground to fire him.

“Speeding is a significant safety issue in the road transport industry. Vehicle collision is the cause of almost a third of all work-related fatalities according to Safe Work Australia, and driving at excessive speed is undoubtedly a significant contributor to this. Additionally, driving in excess of the speed limit is unlawful,” the Commissioner said.

However, the company did not correctly notify Wilkins of the reason for his dismissal and he was not given a proper opportunity to respond to the reasons for the dismissal – he could have been asked about the context of the dead kangaroo incident and why the GPS data showed him speeding.

The Commissioner therefore concluded that, despite there being a potentially valid reason for dismissal (the pattern of general speeding), firing him was “disproportionate to the conduct”. It was also held that the company had denied procedural fairness to Wilkins.

Accordingly the dismissal was held to be unfair and the Commissioner ordered Green Gables Express to pay Wilkins pay A$17 (US$12k) as compensation.

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