ASU v Greater Dandenong CC

The conversation trailed off with the comment from Mr Kinsella: "It is just a simple logistical exercise, of moving bins from point 'A" to point "B". 23 Having found Mr Kinsella unreceptive, Mr Purdy decided at this point not to continue to discuss the issue and as he left, he observed that the cane supervisor, John Tait, as well as another manager of the Co-operative, were standing next to the other door which led into the room in which Mr Kinsella and he had been speaking. He was surprised to see them and he gave evidence that they looked startled when he turned around and saw them. He had not heard them speaking while he was talking to Mr Kinsella. 24 Mr Purdy also gave evidence of his interview with the Co-operative representatives on the 9th February, 2005, Mr Alex Dangler and Mr Bob Briggs from SCT. 25 The next event occurred on the 28th March, 2005, when Mr Dangler phoned him to tell him that he was unsuccessful at the interview and was not required by SCT, and upon enquiring as to why, Mr Dangler replied "I cannot tell you. It is confidential" and Mr Dangler repeated that answer when pressed by Mr Purdy. 26 Mr Purdy gave evidence of being stunned at the rejection of his application, given his nine years of employment with Mills Transport in a supervisory position for four of those years and having received no complaints against him or any warning about his work performance in that time. Neither did he have any entries on his driving record, a copy of which was provided to the Commission. He went on in his statement to say that he had learnt that drivers with less experience than he had in cane deliver operations had been offered employment by the respondent and one driver who had only worked for Mills Transport for two seasons was now employed with SCT. He also learnt from discussions with members of the local transport industry and the general community, that SCT had been ringing people outside of the transport industry and former drivers that did not apply for the positions, to ask if they would like to work and were also employing drivers who were employed only as relief drivers for Mills Transport. 27 Mr Purdy gave evidence that his reputation was damaged as a result of the rejection of his application, particularly in Murwillumbah where he lived and worked in a small rural community. He also testified that his work ethics had been wrongly put into doubt in the minds of his peers. 28 On the 10th May Mr Purdy had written to North Coast Workforce to ask for information they may have collected on him in an attempt to understand why he had been rejected. He annexed a copy of his response and the reply received on the 16th May to his statement, which claimed that he could not be provided with the information due to the fact that North Coast Workforce had been named as an interested party in this application and the letter concluded "therefore, in terms of the national privacy principles, we are unable to provide you with the information you have requested". 29 He completed his statement, giving details of the difficulties of obtaining other work and the earnings of which he has obtained during that period. CONSIDERATION 30 Ms McKenzie's final submissions began with an attempt to convince the Commission that there was a lack of connection between Mr Purdy's approaches to the various authorities including the Mill itself in his complaints about the liability of drivers for falling cane billets from overloaded bins and his failure to achieve employment with the respondent. 31 She firstly attempted to show that the reliance by the union upon the non employment of Mr Purdy because of the alleged victimisation over his representations in respect to the overloaded bins was in effect putting the chicken before the egg. In that argument she claimed that whilst there was some evidence of expressions of concern regarding the incorrect overloading of cane bins, it was not extensive enough in terms of documentation to establish the causal connection necessary for the Commission to hold that that the company had been sufficiently aware of Mr Purdy's activities before them to decide not to employ him. 32 Ms McKenzie's extensive argument referring to the various pieces of correspondence and the like to deny that threshold connection was, in the end, impossible to accept.

33 Her contention, that the documentation shows a primary concern with any R.T.A. fines upon drivers, rather than OH&S issues fell well short of the mark, where it was clear to the Commission that even in the correspondence referred by her, Mr Purdy's references to driver's liability was clearly much broader than simply the question of fines. For instance, that same correspondence alluded to the chance of the drivers being sued, and his reference to the prospect that the general members of the public might be injured and bring an action against drivers, as the ones primarily responsible and in control of the vehicles at the time, showed a much wider safety liability concern well beyond the substantial $579 RTA fine. 34 That more encompassing concern was rather obviously born out by the evidence that at one stage the mill advised that it was prepared to pay the fines and yet the evidence shows sustained and continued pursuit of the issue by Mr Purdy, on the wider OH&S front. He interpreted that offer as setting a precedent and causing a more sloppy approach by drivers to overloading, apparently in the absence of the prospect of paying the fine themselves. At another stage of his evidence, Mr Purdy related how the employer at the time, Mills Transport, was taking responsibility for the payment of damages claims against drivers, passed on by the Co-operative, which again shows that Mr Purdy had bigger safety concerns in mind apart from any immediate fines or even minor damage claims. 35 That threshold issue of whether Mr Purdy was sufficiently involved in the so-called safety issue sought to be discounted by Ms McKenzie must fail also when it was effectively demonstrated that Mr Purdy's profile on the overloading of the bins had exposed himself to the new contractors and to the mill as being someone persisting with something which was finally the subject of serious conferences between the drivers and the mill and the new contractors in late October, and early November, 2004. It remained controversial with the arrival of the respondent on the scene. 36 Still on that "connection" argument, Ms McKenzie highlighted the fact, (acknowledged by him), that Mr Purdy's evidence was unclear as to what he said at the teleconference with the Mill representatives and others in late October. However, whilst his recollection was not in direct speech, this demonstrated to me that he was prepared not to exaggerate his recollections of what took place, and only enhanced his credibility with the Commission. After all, he may have been in an obviously stronger position had he been able to recall what he believed were his protests at the conference in October, which would then have made much more emphasis on the union's claim in this case. His caution in that area of his recollection was in any event made up for in the more direct evidence of his more precise involvement, but it was obvious from his evidence in any event that he had continued to raise his concerns with the arrival of the new contractor on site to prepare for changeover. 37 Accordingly, the Commission had no reason to disbelieve Mr Purdy's recollection of another more important conversation with Mr Kinsella, for the respondent, dealt with elsewhere.

38 Having accepted that there was sufficient evidence from the available documentation, (which included the petition signed by many drivers, including Mr Purdy as the very first signatory in late 2004), establishing that Mr Purdy was very actively involved in O.H.& S. matters, as opposed to the mere imposition of fines by the RTA. I have been comfortable in focussing upon the oral evidence of not only Mr Kinsella, but Mr Dangler.

39 Even by Mr Kinsella's own recollection in his affidavits to this Commission which was exhibit 9, he had a significant conversation with Mr Purdy, where he said words to the following effect to Mr Purdy, when he raised concerns about the filling of the cane bins directly with Mr Kinsella and received the following response: "some of the drivers I have spoken to tell me that you've been to the RTA as well as the local council and police with regard to the sugar cane issue. I am surprised that an employee would take this sort of action instead of his employer."

Mr Purdy was recalled as saying to Mr Kinsella: "I agree, but Mills Transport tend not to get involved in any of this stuff."

Being satisfied of the connection between Mr Purdy and the raising of the safety issue, the Commission then had to consider the next area of connection with his non-selection for a position with the respondent.

40 I have also had to consider the point made by Mr Hatcher as to the inferences to be drawn from the failure of the respondent to bring evidence in respect of the interview process from the likes of Mr Tait, Mr Dines and Mr Briggs, which also was relevant to the reverse onus in this area of the legislation. Mr Briggs was the joint decision maker with Mr Dangler. Mr Dangler, being the outside consultant from the recruitment company hired to make the selections, along with Mr Briggs from the respondent. 41 The evidence of Mr Dangler in the absence of Mr Briggs from North Coast Recruitment was important in respect of the selection criteria adopted and relied upon by the company. 42 Mr Kinsella was also involved in the interviews, but not in relation to Mr Purdy, because Mr Briggs had taken over the role of company representative on the selection committee. 43 As part of the structure of those interviews there were ten different criteria with a total score of one hundred. Six of those ten criteria were assessed by the structured interview, as already said, involving Mr Briggs and Mr Dangler in the case of Mr Purdy. 44 Of the remaining four criteria, the first was a primary reference check with the Co-operative as the customer involved, i.e. the Condong Mill. The second was the references from former employers, which was in the case of Mr Purdy, involved Mills Transport. The third was a driving record and the fourth, a medical report. 45 Whilst on its face, the last four criteria should be unremarkable and recognised as a commonsense approach, Mr. Hatcher successfully identified a far more sinister agenda invoked with that scheme. He understandably compared the scores which Mr Purdy obtained, firstly from his former employer, Mills Transport, which involved a remarkable a score of nine out of ten, with the curiously low score he obtained from the primary reference check, the Condong Mill, provided by Mr Tait and Mr Dines from the Co-Op., where he obtained a mere four out of ten. 46 I have had to agree with a succession of Mr Hatcher's contentions from the evidence, firstly, that it was curious that Mr Kinsella appeared to be unaware of the fact that even if a driver obtained more than fifty out of a hundred, if you scored less than five out of ten for any of the three particular criteria of the primary reference check, driving record and medical record, the application would fail, no matter how highly a driver scored on any of the other areas, including the former employers reference check, which in Mr Purdy's case as already said was nine out of ten. His vagueness on that crucial aspect of the process regarding the primacy of the customer reference score was hard to believe, especially as he shared the interview process with Mr Briggs, but if he was truly ignorant of that feature, it begs the question of whether other candidates interviewed by him were actually subjected to that test. 47 Mr Hatcher effectively emphasised that point, apparently escaping Mr Kinsella, that theoretically on this system, if a driver such as Mr Purdy failed the primary customer reference check, but got ten out of ten for everything else, so that in the end he still obtained a score in the nineties, that driver's application would still fail according to the criteria adopted by North Coast Workforce in conjunction with the respondent SCT. 48 It was sensibly acknowledged in the union's submissions that an unsatisfactory driving or medical record should fail the driver, but the union rightfully took issue with the dominance of the primary reference check, (i.e. with the Co-operative) in giving it such a weighting as to effectively nullify all the other criteria, i.e. in the absence of reasons for clarification. 49 As posed by Mr Hatcher in final submissions, the Commission found it significant that Mr Dangler has, like Mr Kinsella, provided no satisfactory explanation for the adoption of the strict rule in respect of the primary reference check, as opposed to the driving record or medical record. Mr Dangler had conceded that reference checks were normally obtained from former employers, as distinct from clients of the employers in this case involving the mill. He conceded that interviewees usually nominated their own referees, from which references had to be obtained, as opposed to here where the customer became the nominated referee. Mr Hatcher pointed out that Mr Dangler had conceded in paragraph 11 of his statement that that system was actually adopted with some sort of prompting from Mr Kinsella that he has some special need to have a good working relationship with the drivers and the Co-operative. This also ran against Mr Kinsella's claim of some ignorance of that aspect, which the Commission saw as a likely issue affecting the veracity of the respondent's contentions on the point, if not Mr Kinsella's own credit on that issue. 50 The Commission has found it impossible to accept that the primary reference check with the Co-operative, i.e. Condong Mill, should have on its own, without proper enquiry, have been sufficient to derail an application such as Mr Purdys', where other important criteria placed him in an extremely strong position, compared to the vast majority of other drivers, without some display of logic for that extraordinary low score. 51 The Commission has found that the incongruously low score obtained from Mr Tait at the Condong Co-Op Mill as the primary reference point gave rise to a strong inference of ulterior motives, again when there was no other evidence to explain why the primary reference obtained from Mr Tait stated that Mr Purdy was unco-operative and failing to communicate. 52 Likewise, there was a lack of explanation from Mr Dangler as to why Mr Purdy was rated so low when it came to communication skills in the other area of criteria rated by interviewers, Dangler and Briggs. The Commission has otherwise been able to judge Mr Purdy as being a somewhat skilful and measured communicator of concerns, at least in writing, which were articulate and moderate. His conversation with Mr Kinsella upon meeting him, not contested in the evidence, also displayed a level of commonsense, restraint and diplomacy. The fact that he was a supervisor with Mills Transport should perhaps have counted for something either for or against him. 53 Another valid point made by Mr Hatcher; was that of the ninety-three people actually applying from Mills Transport, there was another twenty-three who had never worked on the sugar milling Co-operative from Mills Transport, and these people could not have satisfied the primary reference check, because they had never done the work in the first place. 54 Whilst it might be argued that this was a gamble which the new employer, (the respondent in these proceedings), was at liberty to take, it does beg the question as to why any negative reference from the customer, the Condong Co-operative should rate so highly, without proper enquiry, when those significant number of drivers could not be tested against the customers likes or dislikes to any real extent. 55 There was another aspect which raised the Commission's concern as to the true motives of the respondent, where Mr Hatcher pointed out that the document reporting on the criteria in respect of Mr Purdy, was all phrased in the past tense. Perhaps more importantly when such issue was put to Mr Dangler, he appeared to contradict himself and become confused when he first told the Commission that the interview sheet was prepared in early March, 2005, i.e. after all interviews and after the primary reference check. He then changed his evidence that it was early February, but then conceded that his evidence placed the preparation of the document at a time after the interviews had already commenced, and finally claimed that he could not be sure whether the documents were prepared before or after the 9th February interview. Mr Hatcher contended that this entitled the Commission to conclude that the selection criteria, which included the primary reference check from the Condong Co-operative, had not been established before the selection process, but was introduced perhaps even after the interviews had been completed, which again raises real doubts about the authenticity of the whole process. He rightly concluded that the effect of what SCT, the respondent, and North Coast Workforce had done, is crucial to the reverse onus question, where it gave an effective veto over the employment of any applicant, regardless of how they were assessed by the respondent SCT and North Coast Workforce themselves. The Commission agrees this can only be taken that they effectively delegated the Co-operative power to veto applications for employment. 56 The Commission likewise agrees that the confused evidence of Mr Dangler over dates raises a serious question as to the Purdy interview being anything but a contrived exercise and combined with this last point raised, sufficiently demonstrated the causal link of what motivated the decision to refuse employment.

57 At this stage of my findings, the Commission has noted the following aspects as being established by the evidence: · Mr Purdy obtained a significantly higher score as shown by exhibit 1 than a lot of other employees in obtaining seventy-four out of one hundred. · He obtained forty-one out of sixty during the interview with Mr Briggs and Mr Dangler, which involved six of the criteria raised during the interview, doing better than a lot of other employees who were eventually recruited by SCT. · Mr Purdy obtained ten out of ten for driving record and medical. · He obtained nine out of ten in respect of the reference from his former employer, Mills Transport, which was the highest result of any driver from the Condong Mill. · Mr Purdy failed upon one single criteria, the primary reference check obtained from Mr Tait, the Co-operative's Cane Supply Superintendent at Condong, and Mr Dines, a manager from another mill, who rated Mr Purdy four out of ten. · In the sub categories in the primary reference check, Mr Purdy obtained two out of ten for communication and one out of ten for co-operation. · Mr Tait (and Mr Dines) had passed Mr Purdy on driving/tipping efficiency, adherence to OH&S and work performance, whilst failing him on the communication and co-operation.

58 There were further findings in the consideration of this case given rise to a number of reasonable inferences, quite apart from the question of the reverse onus in the context of Section 210ss(2).

59 The Commission has also had to recognise the significant point driven home by Mr Hatcher that other employees, who were successful in obtaining work from the respondent, had obtained less than five out of ten through their reference from their former employer, Mills Transport, but were given jobs by SCT, upon being assessed to be suitable by SCT. This again demonstrates the decisive role which the primary reference check with the Co-operative played, and it is established for the Commission that Mr Purdy's failure to obtain employment was the direct result of Mr Tait's negative assessment of him, which also contained a negative contribution from Mr Tait's co-manager Mr Graham Dines, who was from a different Mill and did not directly know Mr Purdy. 60 Mr Dangler by his own evidence, made no real attempt to enquire as to the remarkable and unexplained difference between the assessment provided by Mr Purdy's former employer, Mills Transport and that given by Mr Tait, although at one stage appeared to connect it to some failure by the applicant to go through proper channels, which itself was significant for reasons later dealt with.

61 The Commission was therefore more than concerned about the huge disparity between the assessment by Mr Purdy's previous employer, Mills Transport, and that given by Mr Tait from the Co-operative and the failure of Mr Dangler to enlighten the Commission as to why that such a reference was given by Mr Tait (combined with Mr Dines). It was of additional concern when, as already noted, the evidence shows that the confirmation process carried out involved a Mr Dines, who was the cane supply manager from a different Mill entirely from the Condong Mill, from which Mr Purdy worked. Mr Dangler had confirmed that Mr Dines' knowledge of former Mills Transport employees would not have been direct. Again, the Commission has drawn a reasonable inference from the fact that neither Mr Tait nor Mr Dines was called to give evidence, and when added to the failure of Mr Briggs, to give evidence, even though present at the first days hearing, who was the joint decision maker at interview with Mr Dangler, it confirms in the mind of the Commission that the whole process was contrived to rob Mr Purdy of a proper opportunity to be selected. 62 In a more than interesting twist to Mr Dangler's evidence, he offered that he was aware of the Co-operative's belief that the applicant had communicated matters of occupational health and safety in a way which the customer found inappropriate. His evidence on this point can be described as suspiciously stumbling and finally resorting to vagueness when pressed, but included saying "my guess there are certain channels - workplaces that you go through. It was sort of those issues". At that point he was giving an important response to why Messrs Tait and Dines had scored Mr Purdy so low. A reasonable inference has to be drawn that this was the matter behind the fatal score from the Co-Op managers. 63 Allied to that, Mr Kinsella had conceded certain matters being discussed with Mr Forbes about Mr Purdy, where he likewise referred to incorrect channels with the wrong people, and accordingly, the Commission is reinforced in the conclusion that it was Mr Purdy's communication of the overloaded cane being the reason, which drew the disapproval of the Co-operative through the negative reference given by Messrs. Tait and Dines, especially where there was no evidence of any other issue, as to his style of poor communication or inco-operative attitude. 64 Taking that matter further, I have had to adopt the reasoning put forward on this point by Mr Hatcher that it is likewise indicative of the failure of the respondent, SCT to fulfil the reverse onus, where no explanation has been given to lead the Commission to conclude that the Co-operative had a proper basis for those general complaints about Mr Purdy. 65 The wider evidence of Mr Kinsella was important in the overall scheme of what had occurred with Mr Purdy's non employment with the respondent, particularly where he said to Mr Purdy on the 8th December, 2004 "I hear you contacted the RTA". Mr Purdy's evidence was that Mr Kinsella went on to say "I do not approve of that. I would not employ anyone who didn't go through the right channels in management". 66 I have agreed with the deductions of Mr Hatcher, that it was significant that, even though invited to disagree with anything else in Mr Purdy's statement, Mr Kinsella initially did not disagree with Mr Purdy's recollection of that controversial conversation and he repeated that he had no difficulty with that area of Mr Purdy's statement, except when finally this specific issue was gone into, and Mr Kinsella attempted to withdraw. The Commission is understandably not impressed with that belated shift of position, especially given Mr Kinsella's status and maturity. I have therefore preferred the Purdy recollection, which is a significant finding that a very direct statement of intent towards Mr Purdy's chances of being employed was made that day by a key decision maker of the respondent. 67 The Commission has noted Mr Hatcher's comparison with that area of Mr Kinsella's evidence (albeit denied) and that recalled by Mr Dangler in what he recalled Mr Tait saying to him on the communications issue as to going through the wrong channels, and issues being raised inappropriately. It was also noteworthy that Mr Kinsella informed the Commission that he had had discussions between the Co-operative and himself on the basis of all of that.

68 The next matter to be considered in a similar vein is the conversation between Mr Forbes and Mr Kinsella. 69 The first contentious issue between Mr Forbes and Mr Kinsella was Mr Forbes' recollection of Mr Kinsella saying to him "I'm concerned about employing someone who pursued issues on an individual basis", to which Mr Forbes replied "what are you referring to" and he recalled Mr Kinsella saying "Steve Purdy from Condong". 70 It is more than significant that that was not actually denied by Mr Kinsella at any stage in his evidence, and I have to agree that he therefore effectively conceded that he had expressed some concern about employing someone who had done what Mr Purdy had done in his representations and had actually nominated Mr Purdy to Mr Forbes as the person involved. Mr Kinsella clearly disapproved according to Mr Forbes' recollection of Mr Purdy pursuing matters directly with the Sugar Milling Co-operative, and according to Mr Forbes, went further to say, "I view this as misconduct". 71 Only the last reference was absolutely denied by Mr Kinsella, but conceded that he said words to the effect in the first part. 72 In another area, not denied by Mr Kinsella, and actually confirmed by him, he had said to Mr Forbes "no employee of ours would ever pursue an issue directly with our customer. The SCT would not permit it to happen." There is no doubt that this is another clear indication of the opposition by Mr Kinsella of any employee doing what Mr Purdy had done. 73 Somewhat more controversially, Mr Forbes also recalled Mr Kinsella saying in that conversation "I don't think that someone like Steve Purdy would be a suitable employee, at least not as a supervisor" and that, whilst Mr Kinsella felt that he would not have said such a thing, he could not remember concisely what he did say. By comparison, Mr Forbes was totally confident that that was said to him by Mr Kinsella, which was all prior to the selection process. 74 I found no reason to doubt the credibility of Mr Forbes and have preferred his account over the much less certain recollection of Mr Kinsella. Likewise, Mr Purdy's recollection was entirely plausible and believable. 75 I believe that there was a reasonable inference to be drawn from all of that, that Mr Tait's veto of the applicant reflected a pattern of opposition of his raising the Occupational Health and Safety issue of the falling cane billets caused by excessive loading. 76 The final interview assessment sheet prepared in respect to Mr Purdy's interview on 9th February, 2005 is reproduced as follows: NORTH COAST WORKFORCE STEVE PURDY Final Assessment: Selection Criteria (Interview): 1. Heavy Vehicle Driving Experience 8/10 2. Tipping Experience 7/10 3. Mechanical Ability 8/10 4. Communication and Team Work Skills 5/10 5. Capacity to Accept Responsibility 6/10 6. Flexibility and Adaptability 7/10 Selection Criteria (Other): 7. 1st Reference Check 4/10 8. 2nd Reference Check 9/10 9. RTA Driving Record 10/10 10. Pre- Employment Medical & ……… Examination 10/10 TOTAL: 74/100

Final Recommendation: Yes No Comments:

CONCLUSION 77 The union's claim on behalf of Mr Purdy for victimisation has been established to the satisfaction of the Commission particularly having regard to the reverse onus applying as it does in respect of such claims under Section 210(2). 78 That much is clear from the findings that start with the fact that Mr Purdy pursued a broad agenda on an important safety issue with expressed concerns going beyond the liability of drivers to pay the R.T.A. $579 fine entailed. There was a broad safety issue including the chance of injury to the public among other aspects. The Commission was shown that the Co-operative and the respondent in the person of several key players were pressured largely by Mr Purdy and the T.W.U. to take an active interest in the issue and were more than aware of Mr Purdy's pivotal role in pursuing the matter towards the end of his involvement as union delegate through his previous employer, who held the previous cartage contract with the Co-operative. 79 The Commission has confidently found that the interview process resulting in some extraordinarily inconsistent and inexplicable ratings gave rise to the reasonable inference that Mr Purdy's candidature for employment with the respondent was effectively derailed by a contrived agenda of injecting into the process an outriding requirement of customer satisfaction in respect of the Co-operative "primary reference check" item in the criteria. That specific requirement on its face looked innocent enough if it had not been giving such a weighting as to nullify an excellent overall score otherwise obtained, without proper explanation and when evidence could have been brought to clarify such an apparent anomaly. In the case of Mr Purdy, dealt with in detail elsewhere, this lead him to be discounted against persons who were very likely much less deserving drivers, who for whatever reason, were either not rated by the Co-operative in some twenty odd cases in the "primary reference check" or survived it to varying levels. 80 It is unreasonable that there was no enquiry as to the curiously low marking given by the Co-operative managers, one of whom did not operate from the Condong Mill. Neither of them gave evidence. The failure to bring Mr Briggs, the co-interviewer with Mr Dangler, also gave rise to a reasonable inference that their evidence would not have assisted the respondent's case. 81 I have also preferred the evidence of both Mr Purdy and Mr Forbes where it differed from the recollections of Mr Kinsella, who was found to have made some profoundly indicative observations on the attitude the respondent intended to take to Mr Purdy's candidature for employment. 82 The Commission's assessment of the evidence of all witnesses, left no doubt of an entrenched concern by the respondent for the role played by Mr Purdy on the safety issue of overloaded cane billets, and that causal connection was satisfactorily established to the Commission. Mr Purdy was actively sidelined and therefore victimised in terms of Section 210 subsections (a) and (j) inter alia, by a deliberately flawed process of selection of the drivers employed by the previous contractor, as well as from outside that source. O R D E R S 83 Pursuant to Section 213(2)(d) of the Industrial Relations Act NSW 1996 Mr Steve Purdy is to be employed by the respondent in Matter No. IRC 1966 of 2005, Twentieth Super Pace Nominees Pty Ltd t/as Specialised Container Transport (SCT) to perform work pursuant to its contract(s) with the Co-operative in connection with the Condong Sugar Mill, whilst ever S.C.T. retains such contract. 84 An order under Section 213 2 (c) is also made that Mr Purdy be paid remuneration lost as a result of not being employed by S.C.T. since the beginning of the 2005 sugar harvesting season at the rate of $1,300 gross per week, less any amounts earned by Mr Purdy in alternative work.

85 - 25 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Transport Workers' Union of New South Wales (on behalf of Steve Purdy) and Twentieth Super Pace Nominees Pty Ltd t/as (Specialised Container Transport).

Application by Transport Workers' Union of New South Wales on behalf of its member Steve Purdy for relief from victimisation under s.213 of the Industrial Relations Act 1996

1 Mr Purdy was a 58 year old transport driver employed with the one Murwillumbah transport company for approximately nine years until his then employer, Mills Transport, lost a cane haulage contract to cart sugar cane from the Condong Co-operative Sugar Mill, with the contract being awarded to the respondent.

2 It was the failure of Mr Purdy to achieve employment with the replacement successful tenderer, the respondent in these proceedings: (hereinafter called SCT), which gave rise to an application by Mr Purdy's union, the applicant in these proceedings for relief from victimisation pursuant to Section 213 of the Industrial Relations Act 1996. The union sought to establish that its member had been victimized because of his prior activities as the union delegate in his former employment as contemplated by two areas listed under Section 210: SECTION 210 FREEDOM FROM VICTIMISATION 210(1) {Reasons for victimisation} An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000 3 Hearing of this matter commenced on the 9th August, followed by a further hearing on the 23rd September, 2005, when the Commission reserved its decision. BACKGROUND 4 In his evidence before the Commission, Mr Purdy outlined his extensive experience in the mechanical and transport area, the main feature of which was that he was employed for nearly ten years by the predecessor company, Mills Transport, who operated the contract for the removal of cane from the Condong Co-operative Mill, until September, 2004, when Mills Transport announced to its staff that it had lost the contract to cart the cane from the Mill. 5 The Mills Transport drivers were invited to apply for positions within the three mills in the area, inclusive of the Condong Mill, from which Mr Purdy operated. The new contractor, Specialised Container Transport (the respondent) hereinafter called SCT, using an employment recruitment agency by the name of North Coast Workforce conducted interviews in around early February, 2005. Mr Purdy was unsuccessful.

The Applicant's evidence 6 The applicant began his evidence with his long work experience in the industry and elsewhere and included some history of his employment at the Condong Mill operation. He was elected as union co-delegate in or around 2000. He was made shift supervisor also in 2000. The Commission was provided by Mr Purdy with a description of the controversial sugar bins hauled by his and other driver's trucks. The smaller of those was 65 cubic metres, whilst the super bin was 85 cubic metres. The bins do not have covers and had mesh sides towards the top. 7 Mr Purdy gave important evidence that he developed a concern over the security of cane billets whilst in transportation. Billets are short lengths of cane which are quite solid and make up the loads in question. In extreme cases Mr Purdy contended that the cane could be piled between 800 millimetres and one metre above the rim of the bins. He maintained that the problem was exaggerated when the cane was loaded in an uneven manner. The construction of the bins meant that the cane billets could migrate through the mesh around the top of the bins and under the bin doors because of the size of the mesh and the gaps that existed between the bottom of the bin doors and the bin's base. This was primarily a problem with the super bins introduced in around 2002. Attached to the applicant's affidavit exhibit 2, marked SP2 was a photo showing such a gap. 8 The applicant submitted that the overfilling and insecurity of the bins meant that travelling down the highways could result in billets blown off the pile with a serious risk to fellow road users. He also insisted that such was unlawful and was monitored by the RTA and the police. The RTA load restraint guidelines required that "loads should not move relative to the vehicle". He maintained that drivers were held accountable by the authorities and the RTA fined drivers $579. 9 The applicant maintained that up until August, 2004 neither Mills Transport nor the Co-operative accepted responsibility for the payment of such fines. It was his understanding that when complaints of damage by escaping cane billets were received, the sugar Co-operative passed them on to his then employer, Mills Transport, who paid for the damage to be repaired. 10 The applicant provided the Commission with documentation produced by other interested parties advising against the overloading of bins, which included SP3 and SP4 attached to his affidavit. SP5 was a copy of a letter to a local newspaper headed "Cane Danger" describing the risks for motorists. Despite those communications and complaints, the problem remained, which he said was not addressed by the Co-operative, with the bins being continually overfilled by harvesting crews. Whilst his employer at the time, Mills Transport, issued instructions that drivers were not to pick up bins that were posed a safety risk, it was very difficult for individual drivers to refuse a load, and many drivers found themselves in heated discussions when they told harvesting crews of the policy. Mr Purdy was acquainted with these arguments because drivers rang him as shifts supervisor to tell him the problems they were experiencing. With the turn around period said to be seven minutes, drivers were under tight timetables to meet delivery time tables. He claimed that pressure to keep bringing in the cane was placed upon drivers by the Co-operative, which is best illustrated by the eventual instruction to drivers in late 2004, to bring in the cane because the Co-operative would cover the fines incurred with the RTA. He was aware that some drivers were not prepared to stand up and say that it was not right. At SP6 attached to the applicant's witness statement, exhibit 2, the applicant wrote on the 26th August, 2004 to Mr Kelvin Mills, his former employer, and in that letter to his former employer, he said amongst other things, "that high loads attracted more attention and more susceptible to the wind disturbance at highway speeds. Burnt or green cane has extraneous matter that is blown from the bins." He complained about the fact that some harvesting crews failed to use levelling bars provided. He went on to suggest that the Co-operative management was unwilling or unable to correct this attitude shown by some crews. Because there was zero input by drivers into the matter, he believed they should have zero liability and it was his view that fines or interception problems should be handed directly to the harvesting crews that had loaded the bins in question and to be made accountable for their part in the transport chain. His memorandum finished up talking about broken windscreens and abuse from the general public, who he said would determine where the offending cane billet fell from the load and advised Mr Mills "I am seeking exemption from liability on this matter". 11 In a footnote to his former employer the applicant talked about the instance of one driver who, having refused through his supervisor to take a badly loaded super bin, was overruled by Mr John Tait of the Co-Op and who stated "the Co-Op will pay for any fines incurred". Significantly, the applicant completed that footnote with the statement "this (payment of fines by the Co-Op) has created a precedence in this area and now less notice will be taken of bins being transported". (The significance of this last notation was that it might have demonstrated to the Commission that, since the Co-Op offered to pay the fines, the applicant was not primarily concerned about the actual payment of the fine as suggested by Ms McKenzie in her final submissions, but rather it was an element of the broader liability involved, which motivated his representations). 12 Attached to the applicant's affidavit material was a petition signed by drivers which included Mr Purdy's signature as the first entry. Mr Forbes gave evidence that the petition was not actually forwarded on by the union at the time, and Mr Forbes told the Commission that it was because he believed action was being taken around the time, late 2004 to ensure some solution to the problem. 13 At SP8 to the applicant's affidavit, was a letter from the Co-operative Sugar Mill signed by Mr Walker dated the 26th October addressed to Mr Forbes of the union, replying to Mr Forbes' earlier correspondences of the 28th September and 22nd October, 2004, where concerns were raised as to the loading of the cane bins. The letter claimed that the guidelines were currently in place; adopted the union's suggestion of a drivers consultative committee to discuss and implement ideas on safety; referred to the so-called "chain of responsibility legislation" pending before Parliament; expressed reservations about the danger tags suggestion of Mr Forbes; went on to talk about a drivers consultative committee; and finally the letter speculated on some changes to the tarping and mesh side of bins, but acknowledged that there was a need to further address legitimate concerns. 14 A few days later on the 1st November, a further reply was sent to Mr Forbes referring to a teleconference that had taken place since the earlier letter. The letter began by addressing the issue of liability discussed during that teleconference; indicated that the liability policy response would be difficult to determine in fictitious circumstances; suggested that an accident would normally be covered by the compulsory third party insurance; and the truck driver would be covered by the insurance policies in place. The letter finished up (again signed by Mr Walker) by suggesting that the guidelines would be further strengthened, claimed that drivers' judgement would be respected and that the Co-operative would support the driver legally and financially if that judgement was later questioned, provided the driver followed the guidelines correctly. Next in the attachments to Mr Purdy's statement was what purported to be minutes taken of a consultative committee meeting of drivers held on the 3rd November. Apart from Mr Walker, (the signatory to the previous two letters), the other significant people at the meeting were Mr Purdy and also Mr Graham Dines, Cane Supply Manager, and Mr John Tait, Cane Supply Superintendent, Condong Mill who were the gentlemen providing the controversial references referred to in this decision, which resulted in the non-employment of Mr Purdy. 15 The applicant gave evidence that he had never received the guidelines referred to in Mr Walker's correspondence to Mr Forbes dated the 26th October and more importantly claimed that from his observations, the guidelines were not being followed by drivers, or anyone else. 16 As pointed out by Ms McKenzie on behalf of the respondent, the applicant was unable to recall precisely what he said at the 28th October teleconference, but claimed that, whilst he could not recall exactly what was said during the conference "I expect that I spoke on behalf of the drivers, saying I was very concerned about the risk the bins exposed to the public and that I did not believe it was fair that the drivers are the ones who are held responsible when it was caused by the harvesting crew and the Co-operative." He recalled about that conference that the Co-operative had expressed the view that the loading of cane bins was not much of an issue, and that it was a low risk exercise. 17 The applicant gave evidence that he was very concerned about the 1st November letter sent under Mr Walker's signature from the Co-operative (Exhibit 2 SP9), as it appeared to him that the Co-operative wanted to run the risk and cover up. He was unhappy with the issue of liability and not happy that drivers could be liable. The reference in the letter that the Co-operative would only help the drivers if they had "followed the guidelines correctly", only confirmed for Mr Purdy his concerns given the pressure that the drivers were on to pick up bins. 18 The issue was again discussed on the 3rd November meeting with the Co-operative and driver representatives, which included Mr Purdy. The issue of meal breaks and fatigue breaks was raised, in view of a tight timetable referred to earlier in Mr Purdy's statement of a seven minute drop off time. He believed the timetable did not allow for rest breaks to drivers and that there was only an estimated time of arrival involved. Scheduled breaks were required, particularly during busy points of the season and Mr Purdy testified that he regarded such as an important occupational health and safety issue, which he repeatedly raised with the Co-operative and received the response that they would "look into it, but had done nothing by the 3rd November". 19 The applicant gave important evidence that, following Mr Walker's claim at the 3rd November meeting, where it was said by management of the Co-Op. that 300 millimetres above the rim was an acceptable height of a load, he contacted the Road Transport Authority on the 4th November. The RTA information previously given to him by his former employer, showed that the loads should have been completely within the sides of the bins. Accordingly, he sought to find out the correct position and spoke to Richard Rosengrin, Industry Liaison and Education Officer of the RTA. He gave evidence that Mr Rosengrin had told him "no, there are no exemptions. All those are within the confines of the bins. Please put your enquiry in writing." On the next day, the 5th November, Mr Purdy wrote to Mr Rosengrin as he had suggested and in that letter mentioned among other things, "surely this is not an acceptable practice, as one cane billet could cause a serious accident when it falls from the load during transport on public roads". He went on in that letter to complain that the Sugar Milling Co-Op rejected approaches from the union to modify their stance on the basis that they regarded it as "low risk claiming they have had minimal public complaint". 20 Of more direct impact upon the Commission's view of this case, Mr Purdy gave crucial evidence of a meeting on the 8th December with Peter Kinsella, one of the managers of the respondent, who met with drivers of the Condong Sugar Mill to introduce himself. At the conclusion of the meeting, Mr Purdy approached Mr Kinsella, as the union delegate and representative of the drivers, and in an endeavour to explain their concerns about the safety of the bins, assured him that it was a matter nothing to do with SCT (up to that point) and that the drivers had attempted to fix the problem before SCT came into the picture. According to Mr Purdy, Mr Kinsella seemed to know who he was and outlined his concerns about the cane bins saying to Mr Kinsella "we are trying to rectify all these problems before SCT comes in", to which Mr Kinsella replied: "I hear you contacted the RTA" Purdy: "Yes I did". Kinsella: "I do not approve of that. I would not employ anyone who didn't go through the right channels in management". 21 Mr Purdy's evidence was that he agreed at the time with Mr Kinsella, but because of the attitude displayed by Mr Kinsella, he was not able to explain that whilst he had gone outside management (i.e. Mills Transport), he had the full approval of his former employers in approaching the RTA on behalf of the drivers. 22 Mr Purdy recalled that Mr Kinsella said at some stage during that conversation, words to the effect: "You do not have any support with regards to the safety issues".

The conversation trailed off with the comment from Mr Kinsella: "It is just a simple logistical exercise, of moving bins from point 'A" to point "B". 23 Having found Mr Kinsella unreceptive, Mr Purdy decided at this point not to continue to discuss the issue and as he left, he observed that the cane supervisor, John Tait, as well as another manager of the Co-operative, were standing next to the other door which led into the room in which Mr Kinsella and he had been speaking. He was surprised to see them and he gave evidence that they looked startled when he turned around and saw them. He had not heard them speaking while he was talking to Mr Kinsella. 24 Mr Purdy also gave evidence of his interview with the Co-operative representatives on the 9th February, 2005, Mr Alex Dangler and Mr Bob Briggs from SCT. 25 The next event occurred on the 28th March, 2005, when Mr Dangler phoned him to tell him that he was unsuccessful at the interview and was not required by SCT, and upon enquiring as to why, Mr Dangler replied "I cannot tell you. It is confidential" and Mr Dangler repeated that answer when pressed by Mr Purdy. 26 Mr Purdy gave evidence of being stunned at the rejection of his application, given his nine years of employment with Mills Transport in a supervisory position for four of those years and having received no complaints against him or any warning about his work performance in that time. Neither did he have any entries on his driving record, a copy of which was provided to the Commission. He went on in his statement to say that he had learnt that drivers with less experience than he had in cane deliver operations had been offered employment by the respondent and one driver who had only worked for Mills Transport for two seasons was now employed with SCT. He also learnt from discussions with members of the local transport industry and the general community, that SCT had been ringing people outside of the transport industry and former drivers that did not apply for the positions, to ask if they would like to work and were also employing drivers who were employed only as relief drivers for Mills Transport. 27 Mr Purdy gave evidence that his reputation was damaged as a result of the rejection of his application, particularly in Murwillumbah where he lived and worked in a small rural community. He also testified that his work ethics had been wrongly put into doubt in the minds of his peers. 28 On the 10th May Mr Purdy had written to North Coast Workforce to ask for information they may have collected on him in an attempt to understand why he had been rejected. He annexed a copy of his response and the reply received on the 16th May to his statement, which claimed that he could not be provided with the information due to the fact that North Coast Workforce had been named as an interested party in this application and the letter concluded "therefore, in terms of the national privacy principles, we are unable to provide you with the information you have requested". 29 He completed his statement, giving details of the difficulties of obtaining other work and the earnings of which he has obtained during that period. CONSIDERATION 30 Ms McKenzie's final submissions began with an attempt to convince the Commission that there was a lack of connection between Mr Purdy's approaches to the various authorities including the Mill itself in his complaints about the liability of drivers for falling cane billets from overloaded bins and his failure to achieve employment with the respondent. 31 She firstly attempted to show that the reliance by the union upon the non employment of Mr Purdy because of the alleged victimisation over his representations in respect to the overloaded bins was in effect putting the chicken before the egg. In that argument she claimed that whilst there was some evidence of expressions of concern regarding the incorrect overloading of cane bins, it was not extensive enough in terms of documentation to establish the causal connection necessary for the Commission to hold that that the company had been sufficiently aware of Mr Purdy's activities before them to decide not to employ him. 32 Ms McKenzie's extensive argument referring to the various pieces of correspondence and the like to deny that threshold connection was, in the end, impossible to accept.

33 Her contention, that the documentation shows a primary concern with any R.T.A. fines upon drivers, rather than OH&S issues fell well short of the mark, where it was clear to the Commission that even in the correspondence referred by her, Mr Purdy's references to driver's liability was clearly much broader than simply the question of fines. For instance, that same correspondence alluded to the chance of the drivers being sued, and his reference to the prospect that the general members of the public might be injured and bring an action against drivers, as the ones primarily responsible and in control of the vehicles at the time, showed a much wider safety liability concern well beyond the substantial $579 RTA fine. 34 That more encompassing concern was rather obviously born out by the evidence that at one stage the mill advised that it was prepared to pay the fines and yet the evidence shows sustained and continued pursuit of the issue by Mr Purdy, on the wider OH&S front. He interpreted that offer as setting a precedent and causing a more sloppy approach by drivers to overloading, apparently in the absence of the prospect of paying the fine themselves. At another stage of his evidence, Mr Purdy related how the employer at the time, Mills Transport, was taking responsibility for the payment of damages claims against drivers, passed on by the Co-operative, which again shows that Mr Purdy had bigger safety concerns in mind apart from any immediate fines or even minor damage claims. 35 That threshold issue of whether Mr Purdy was sufficiently involved in the so-called safety issue sought to be discounted by Ms McKenzie must fail also when it was effectively demonstrated that Mr Purdy's profile on the overloading of the bins had exposed himself to the new contractors and to the mill as being someone persisting with something which was finally the subject of serious conferences between the drivers and the mill and the new contractors in late October, and early November, 2004. It remained controversial with the arrival of the respondent on the scene. 36 Still on that "connection" argument, Ms McKenzie highlighted the fact, (acknowledged by him), that Mr Purdy's evidence was unclear as to what he said at the teleconference with the Mill representatives and others in late October. However, whilst his recollection was not in direct speech, this demonstrated to me that he was prepared not to exaggerate his recollections of what took place, and only enhanced his credibility with the Commission. After all, he may have been in an obviously stronger position had he been able to recall what he believed were his protests at the conference in October, which would then have made much more emphasis on the union's claim in this case. His caution in that area of his recollection was in any event made up for in the more direct evidence of his more precise involvement, but it was obvious from his evidence in any event that he had continued to raise his concerns with the arrival of the new contractor on site to prepare for changeover. 37 Accordingly, the Commission had no reason to disbelieve Mr Purdy's recollection of another more important conversation with Mr Kinsella, for the respondent, dealt with elsewhere.

38 Having accepted that there was sufficient evidence from the available documentation, (which included the petition signed by many drivers, including Mr Purdy as the very first signatory in late 2004), establishing that Mr Purdy was very actively involved in O.H.& S. matters, as opposed to the mere imposition of fines by the RTA. I have been comfortable in focussing upon the oral evidence of not only Mr Kinsella, but Mr Dangler.

39 Even by Mr Kinsella's own recollection in his affidavits to this Commission which was exhibit 9, he had a significant conversation with Mr Purdy, where he said words to the following effect to Mr Purdy, when he raised concerns about the filling of the cane bins directly with Mr Kinsella and received the following response: "some of the drivers I have spoken to tell me that you've been to the RTA as well as the local council and police with regard to the sugar cane issue. I am surprised that an employee would take this sort of action instead of his employer."

Mr Purdy was recalled as saying to Mr Kinsella: "I agree, but Mills Transport tend not to get involved in any of this stuff."

Being satisfied of the connection between Mr Purdy and the raising of the safety issue, the Commission then had to consider the next area of connection with his non-selection for a position with the respondent.

40 I have also had to consider the point made by Mr Hatcher as to the inferences to be drawn from the failure of the respondent to bring evidence in respect of the interview process from the likes of Mr Tait, Mr Dines and Mr Briggs, which also was relevant to the reverse onus in this area of the legislation. Mr Briggs was the joint decision maker with Mr Dangler. Mr Dangler, being the outside consultant from the recruitment company hired to make the selections, along with Mr Briggs from the respondent. 41 The evidence of Mr Dangler in the absence of Mr Briggs from North Coast Recruitment was important in respect of the selection criteria adopted and relied upon by the company. 42 Mr Kinsella was also involved in the interviews, but not in relation to Mr Purdy, because Mr Briggs had taken over the role of company representative on the selection committee. 43 As part of the structure of those interviews there were ten different criteria with a total score of one hundred. Six of those ten criteria were assessed by the structured interview, as already said, involving Mr Briggs and Mr Dangler in the case of Mr Purdy. 44 Of the remaining four criteria, the first was a primary reference check with the Co-operative as the customer involved, i.e. the Condong Mill. The second was the references from former employers, which was in the case of Mr Purdy, involved Mills Transport. The third was a driving record and the fourth, a medical report. 45 Whilst on its face, the last four criteria should be unremarkable and recognised as a commonsense approach, Mr. Hatcher successfully identified a far more sinister agenda invoked with that scheme. He understandably compared the scores which Mr Purdy obtained, firstly from his former employer, Mills Transport, which involved a remarkable a score of nine out of ten, with the curiously low score he obtained from the primary reference check, the Condong Mill, provided by Mr Tait and Mr Dines from the Co-Op., where he obtained a mere four out of ten. 46 I have had to agree with a succession of Mr Hatcher's contentions from the evidence, firstly, that it was curious that Mr Kinsella appeared to be unaware of the fact that even if a driver obtained more than fifty out of a hundred, if you scored less than five out of ten for any of the three particular criteria of the primary reference check, driving record and medical record, the application would fail, no matter how highly a driver scored on any of the other areas, including the former employers reference check, which in Mr Purdy's case as already said was nine out of ten. His vagueness on that crucial aspect of the process regarding the primacy of the customer reference score was hard to believe, especially as he shared the interview process with Mr Briggs, but if he was truly ignorant of that feature, it begs the question of whether other candidates interviewed by him were actually subjected to that test. 47 Mr Hatcher effectively emphasised that point, apparently escaping Mr Kinsella, that theoretically on this system, if a driver such as Mr Purdy failed the primary customer reference check, but got ten out of ten for everything else, so that in the end he still obtained a score in the nineties, that driver's application would still fail according to the criteria adopted by North Coast Workforce in conjunction with the respondent SCT. 48 It was sensibly acknowledged in the union's submissions that an unsatisfactory driving or medical record should fail the driver, but the union rightfully took issue with the dominance of the primary reference check, (i.e. with the Co-operative) in giving it such a weighting as to effectively nullify all the other criteria, i.e. in the absence of reasons for clarification. 49 As posed by Mr Hatcher in final submissions, the Commission found it significant that Mr Dangler has, like Mr Kinsella, provided no satisfactory explanation for the adoption of the strict rule in respect of the primary reference check, as opposed to the driving record or medical record. Mr Dangler had conceded that reference checks were normally obtained from former employers, as distinct from clients of the employers in this case involving the mill. He conceded that interviewees usually nominated their own referees, from which references had to be obtained, as opposed to here where the customer became the nominated referee. Mr Hatcher pointed out that Mr Dangler had conceded in paragraph 11 of his statement that that system was actually adopted with some sort of prompting from Mr Kinsella that he has some special need to have a good working relationship with the drivers and the Co-operative. This also ran against Mr Kinsella's claim of some ignorance of that aspect, which the Commission saw as a likely issue affecting the veracity of the respondent's contentions on the point, if not Mr Kinsella's own credit on that issue. 50 The Commission has found it impossible to accept that the primary reference check with the Co-operative, i.e. Condong Mill, should have on its own, without proper enquiry, have been sufficient to derail an application such as Mr Purdys', where other important criteria placed him in an extremely strong position, compared to the vast majority of other drivers, without some display of logic for that extraordinary low score. 51 The Commission has found that the incongruously low score obtained from Mr Tait at the Condong Co-Op Mill as the primary reference point gave rise to a strong inference of ulterior motives, again when there was no other evidence to explain why the primary reference obtained from Mr Tait stated that Mr Purdy was unco-operative and failing to communicate. 52 Likewise, there was a lack of explanation from Mr Dangler as to why Mr Purdy was rated so low when it came to communication skills in the other area of criteria rated by interviewers, Dangler and Briggs. The Commission has otherwise been able to judge Mr Purdy as being a somewhat skilful and measured communicator of concerns, at least in writing, which were articulate and moderate. His conversation with Mr Kinsella upon meeting him, not contested in the evidence, also displayed a level of commonsense, restraint and diplomacy. The fact that he was a supervisor with Mills Transport should perhaps have counted for something either for or against him. 53 Another valid point made by Mr Hatcher; was that of the ninety-three people actually applying from Mills Transport, there was another twenty-three who had never worked on the sugar milling Co-operative from Mills Transport, and these people could not have satisfied the primary reference check, because they had never done the work in the first place. 54 Whilst it might be argued that this was a gamble which the new employer, (the respondent in these proceedings), was at liberty to take, it does beg the question as to why any negative reference from the customer, the Condong Co-operative should rate so highly, without proper enquiry, when those significant number of drivers could not be tested against the customers likes or dislikes to any real extent. 55 There was another aspect which raised the Commission's concern as to the true motives of the respondent, where Mr Hatcher pointed out that the document reporting on the criteria in respect of Mr Purdy, was all phrased in the past tense. Perhaps more importantly when such issue was put to Mr Dangler, he appeared to contradict himself and become confused when he first told the Commission that the interview sheet was prepared in early March, 2005, i.e. after all interviews and after the primary reference check. He then changed his evidence that it was early February, but then conceded that his evidence placed the preparation of the document at a time after the interviews had already commenced, and finally claimed that he could not be sure whether the documents were prepared before or after the 9th February interview. Mr Hatcher contended that this entitled the Commission to conclude that the selection criteria, which included the primary reference check from the Condong Co-operative, had not been established before the selection process, but was introduced perhaps even after the interviews had been completed, which again raises real doubts about the authenticity of the whole process. He rightly concluded that the effect of what SCT, the respondent, and North Coast Workforce had done, is crucial to the reverse onus question, where it gave an effective veto over the employment of any applicant, regardless of how they were assessed by the respondent SCT and North Coast Workforce themselves. The Commission agrees this can only be taken that they effectively delegated the Co-operative power to veto applications for employment. 56 The Commission likewise agrees that the confused evidence of Mr Dangler over dates raises a serious question as to the Purdy interview being anything but a contrived exercise and combined with this last point raised, sufficiently demonstrated the causal link of what motivated the decision to refuse employment.

57 At this stage of my findings, the Commission has noted the following aspects as being established by the evidence: · Mr Purdy obtained a significantly higher score as shown by exhibit 1 than a lot of other employees in obtaining seventy-four out of one hundred. · He obtained forty-one out of sixty during the interview with Mr Briggs and Mr Dangler, which involved six of the criteria raised during the interview, doing better than a lot of other employees who were eventually recruited by SCT. · Mr Purdy obtained ten out of ten for driving record and medical. · He obtained nine out of ten in respect of the reference from his former employer, Mills Transport, which was the highest result of any driver from the Condong Mill. · Mr Purdy failed upon one single criteria, the primary reference check obtained from Mr Tait, the Co-operative's Cane Supply Superintendent at Condong, and Mr Dines, a manager from another mill, who rated Mr Purdy four out of ten. · In the sub categories in the primary reference check, Mr Purdy obtained two out of ten for communication and one out of ten for co-operation. · Mr Tait (and Mr Dines) had passed Mr Purdy on driving/tipping efficiency, adherence to OH&S and work performance, whilst failing him on the communication and co-operation.

58 There were further findings in the consideration of this case given rise to a number of reasonable inferences, quite apart from the question of the reverse onus in the context of Section 210ss(2).

59 The Commission has also had to recognise the significant point driven home by Mr Hatcher that other employees, who were successful in obtaining work from the respondent, had obtained less than five out of ten through their reference from their former employer, Mills Transport, but were given jobs by SCT, upon being assessed to be suitable by SCT. This again demonstrates the decisive role which the primary reference check with the Co-operative played, and it is established for the Commission that Mr Purdy's failure to obtain employment was the direct result of Mr Tait's negative assessment of him, which also contained a negative contribution from Mr Tait's co-manager Mr Graham Dines, who was from a different Mill and did not directly know Mr Purdy. 60 Mr Dangler by his own evidence, made no real attempt to enquire as to the remarkable and unexplained difference between the assessment provided by Mr Purdy's former employer, Mills Transport and that given by Mr Tait, although at one stage appeared to connect it to some failure by the applicant to go through proper channels, which itself was significant for reasons later dealt with.

61 The Commission was therefore more than concerned about the huge disparity between the assessment by Mr Purdy's previous employer, Mills Transport, and that given by Mr Tait from the Co-operative and the failure of Mr Dangler to enlighten the Commission as to why that such a reference was given by Mr Tait (combined with Mr Dines). It was of additional concern when, as already noted, the evidence shows that the confirmation process carried out involved a Mr Dines, who was the cane supply manager from a different Mill entirely from the Condong Mill, from which Mr Purdy worked. Mr Dangler had confirmed that Mr Dines' knowledge of former Mills Transport employees would not have been direct. Again, the Commission has drawn a reasonable inference from the fact that neither Mr Tait nor Mr Dines was called to give evidence, and when added to the failure of Mr Briggs, to give evidence, even though present at the first days hearing, who was the joint decision maker at interview with Mr Dangler, it confirms in the mind of the Commission that the whole process was contrived to rob Mr Purdy of a proper opportunity to be selected. 62 In a more than interesting twist to Mr Dangler's evidence, he offered that he was aware of the Co-operative's belief that the applicant had communicated matters of occupational health and safety in a way which the customer found inappropriate. His evidence on this point can be described as suspiciously stumbling and finally resorting to vagueness when pressed, but included saying "my guess there are certain channels - workplaces that you go through. It was sort of those issues". At that point he was giving an important response to why Messrs Tait and Dines had scored Mr Purdy so low. A reasonable inference has to be drawn that this was the matter behind the fatal score from the Co-Op managers. 63 Allied to that, Mr Kinsella had conceded certain matters being discussed with Mr Forbes about Mr Purdy, where he likewise referred to incorrect channels with the wrong people, and accordingly, the Commission is reinforced in the conclusion that it was Mr Purdy's communication of the overloaded cane being the reason, which drew the disapproval of the Co-operative through the negative reference given by Messrs. Tait and Dines, especially where there was no evidence of any other issue, as to his style of poor communication or inco-operative attitude. 64 Taking that matter further, I have had to adopt the reasoning put forward on this point by Mr Hatcher that it is likewise indicative of the failure of the respondent, SCT to fulfil the reverse onus, where no explanation has been given to lead the Commission to conclude that the Co-operative had a proper basis for those general complaints about Mr Purdy. 65 The wider evidence of Mr Kinsella was important in the overall scheme of what had occurred with Mr Purdy's non employment with the respondent, particularly where he said to Mr Purdy on the 8th December, 2004 "I hear you contacted the RTA". Mr Purdy's evidence was that Mr Kinsella went on to say "I do not approve of that. I would not employ anyone who didn't go through the right channels in management". 66 I have agreed with the deductions of Mr Hatcher, that it was significant that, even though invited to disagree with anything else in Mr Purdy's statement, Mr Kinsella initially did not disagree with Mr Purdy's recollection of that controversial conversation and he repeated that he had no difficulty with that area of Mr Purdy's statement, except when finally this specific issue was gone into, and Mr Kinsella attempted to withdraw. The Commission is understandably not impressed with that belated shift of position, especially given Mr Kinsella's status and maturity. I have therefore preferred the Purdy recollection, which is a significant finding that a very direct statement of intent towards Mr Purdy's chances of being employed was made that day by a key decision maker of the respondent. 67 The Commission has noted Mr Hatcher's comparison with that area of Mr Kinsella's evidence (albeit denied) and that recalled by Mr Dangler in what he recalled Mr Tait saying to him on the communications issue as to going through the wrong channels, and issues being raised inappropriately. It was also noteworthy that Mr Kinsella informed the Commission that he had had discussions between the Co-operative and himself on the basis of all of that.

68 The next matter to be considered in a similar vein is the conversation between Mr Forbes and Mr Kinsella. 69 The first contentious issue between Mr Forbes and Mr Kinsella was Mr Forbes' recollection of Mr Kinsella saying to him "I'm concerned about employing someone who pursued issues on an individual basis", to which Mr Forbes replied "what are you referring to" and he recalled Mr Kinsella saying "Steve Purdy from Condong". 70 It is more than significant that that was not actually denied by Mr Kinsella at any stage in his evidence, and I have to agree that he therefore effectively conceded that he had expressed some concern about employing someone who had done what Mr Purdy had done in his representations and had actually nominated Mr Purdy to Mr Forbes as the person involved. Mr Kinsella clearly disapproved according to Mr Forbes' recollection of Mr Purdy pursuing matters directly with the Sugar Milling Co-operative, and according to Mr Forbes, went further to say, "I view this as misconduct". 71 Only the last reference was absolutely denied by Mr Kinsella, but conceded that he said words to the effect in the first part. 72 In another area, not denied by Mr Kinsella, and actually confirmed by him, he had said to Mr Forbes "no employee of ours would ever pursue an issue directly with our customer. The SCT would not permit it to happen." There is no doubt that this is another clear indication of the opposition by Mr Kinsella of any employee doing what Mr Purdy had done. 73 Somewhat more controversially, Mr Forbes also recalled Mr Kinsella saying in that conversation "I don't think that someone like Steve Purdy would be a suitable employee, at least not as a supervisor" and that, whilst Mr Kinsella felt that he would not have said such a thing, he could not remember concisely what he did say. By comparison, Mr Forbes was totally confident that that was said to him by Mr Kinsella, which was all prior to the selection process. 74 I found no reason to doubt the credibility of Mr Forbes and have preferred his account over the much less certain recollection of Mr Kinsella. Likewise, Mr Purdy's recollection was entirely plausible and believable. 75 I believe that there was a reasonable inference to be drawn from all of that, that Mr Tait's veto of the applicant reflected a pattern of opposition of his raising the Occupational Health and Safety issue of the falling cane billets caused by excessive loading. 76 The final interview assessment sheet prepared in respect to Mr Purdy's interview on 9th February, 2005 is reproduced as follows: NORTH COAST WORKFORCE STEVE PURDY Final Assessment: Selection Criteria (Interview): 1. Heavy Vehicle Driving Experience 8/10 2. Tipping Experience 7/10 3. Mechanical Ability 8/10 4. Communication and Team Work Skills 5/10 5. Capacity to Accept Responsibility 6/10 6. Flexibility and Adaptability 7/10 Selection Criteria (Other): 7. 1st Reference Check 4/10 8. 2nd Reference Check 9/10 9. RTA Driving Record 10/10 10. Pre- Employment Medical & ……… Examination 10/10 TOTAL: 74/100

Final Recommendation: Yes No Comments:

CONCLUSION 77 The union's claim on behalf of Mr Purdy for victimisation has been established to the satisfaction of the Commission particularly having regard to the reverse onus applying as it does in respect of such claims under Section 210(2). 78 That much is clear from the findings that start with the fact that Mr Purdy pursued a broad agenda on an important safety issue with expressed concerns going beyond the liability of drivers to pay the R.T.A. $579 fine entailed. There was a broad safety issue including the chance of injury to the public among other aspects. The Commission was shown that the Co-operative and the respondent in the person of several key players were pressured largely by Mr Purdy and the T.W.U. to take an active interest in the issue and were more than aware of Mr Purdy's pivotal role in pursuing the matter towards the end of his involvement as union delegate through his previous employer, who held the previous cartage contract with the Co-operative. 79 The Commission has confidently found that the interview process resulting in some extraordinarily inconsistent and inexplicable ratings gave rise to the reasonable inference that Mr Purdy's candidature for employment with the respondent was effectively derailed by a contrived agenda of injecting into the process an outriding requirement of customer satisfaction in respect of the Co-operative "primary reference check" item in the criteria. That specific requirement on its face looked innocent enough if it had not been giving such a weighting as to nullify an excellent overall score otherwise obtained, without proper explanation and when evidence could have been brought to clarify such an apparent anomaly. In the case of Mr Purdy, dealt with in detail elsewhere, this lead him to be discounted against persons who were very likely much less deserving drivers, who for whatever reason, were either not rated by the Co-operative in some twenty odd cases in the "primary reference check" or survived it to varying levels. 80 It is unreasonable that there was no enquiry as to the curiously low marking given by the Co-operative managers, one of whom did not operate from the Condong Mill. Neither of them gave evidence. The failure to bring Mr Briggs, the co-interviewer with Mr Dangler, also gave rise to a reasonable inference that their evidence would not have assisted the respondent's case. 81 I have also preferred the evidence of both Mr Purdy and Mr Forbes where it differed from the recollections of Mr Kinsella, who was found to have made some profoundly indicative observations on the attitude the respondent intended to take to Mr Purdy's candidature for employment. 82 The Commission's assessment of the evidence of all witnesses, left no doubt of an entrenched concern by the respondent for the role played by Mr Purdy on the safety issue of overloaded cane billets, and that causal connection was satisfactorily established to the Commission. Mr Purdy was actively sidelined and therefore victimised in terms of Section 210 subsections (a) and (j) inter alia, by a deliberately flawed process of selection of the drivers employed by the previous contractor, as well as from outside that source. O R D E R S 83 Pursuant to Section 213(2)(d) of the Industrial Relations Act NSW 1996 Mr Steve Purdy is to be employed by the respondent in Matter No. IRC 1966 of 2005, Twentieth Super Pace Nominees Pty Ltd t/as Specialised Container Transport (SCT) to perform work pursuant to its contract(s) with the Co-operative in connection with the Condong Sugar Mill, whilst ever S.C.T. retains such contract. 84 An order under Section 213 2 (c) is also made that Mr Purdy be paid remuneration lost as a result of not being employed by S.C.T. since the beginning of the 2005 sugar harvesting season at the rate of $1,300 gross per week, less any amounts earned by Mr Purdy in alternative work.

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