REASONS FOR JUDGMENT
1 The corporate respondents, Sita Coaches Pty Ltd ("Coaches") and Sita Bus Lines Pty Ltd ("Bus Lines") are effectively controlled by the second respondent, Giuseppe (also known as George) Sita ("Mr Sita"). Hereafter in these reasons, when it is unnecessary or impossible to distinguish between them, Coaches and Bus Lines are collectively referred to as "Sita". Between them, Coaches and Bus Lines have conducted coach or bus services consisting partly of a tourist operation devoted to carrying visitors to scenic attractions and places of interest like Phillip Island and Sovereign Hill at Ballarat. Another part of the business has consisted of the provision of public bus services over designated routes under contract to the Public Transport Corporation. A third aspect of the business has been the conduct of school bus services and the letting of buses on charter. Mr Sita claimed that Bus Lines and Coaches were separate, although he "owned" both of them. In-bound tourist work and charter work was carried out by Coaches.
2 In 1998, there had been negotiations between Bus Lines and the Transport Workers Union of Australia with a view to concluding a certified agreement under the Workplace Relations Act 1996 ("the Act"). Such an agreement was certified by the Industrial Relations Commission of Australia ("the Commission") on 12 August 1998 and stipulated weekly wage rates for the following classification:
Regular Service drivers
School Bus drivers
Charter and Tour drivers
Greasers
Cleaners / Bowser attendants
School Bus Supervisors.
3 The applicant in proceedings VG 743 of 1999, Mr Napoli, commenced work in the business in 1982. He believes that his original employer was Bus Lines and that his employment was later transferred to Coaches. However, it seems that a group tax certificate for the year ended 30 June 1993 shows Bus Lines as his employer and a later certificate for the year ended 30 June 1998 shows Bus Lines as an employer of Mr Napoli and as having paid him gross wages of $18, 284.00. A similar certificate issued by Coaches shows it also to have employed Mr Napoli during the same period and to have paid him gross wages of $13, 583.00.
4 Mr Napoli has testified that for most of the last eleven years of his employment he was engaged mainly on tourist work and was occasionally required to do morning school runs. On other occasions he drove buses on charter. Less frequently he drove buses on designated public routes, usually to relieve a regular driver who was on leave or absent for some other reason. He regarded the tourist work as more congenial because it usually attracted significant amounts of overtime and tips or gratuities were often received from tourists.
5 In or about September or October 1997 Mr Sita raised with Mr Napoli the prospect of entering into an individual employment contract. Mr Napoli was originally attracted to the idea because he thought it would prescribe more precisely the basis of his remuneration. He claimed that, at the same time, Mr Sita said that "if people don't sign the contracts he would not give them any overtime."
6 In late November or early December 1997 Mr Sita revived with Mr Napoli the question of an individual employment contract and requested him to sign a form of Australian Workplace Agreement ("AWA") which he then produced. Mr Napoli requested a few days to consider the terms of the proposed AWA which, he says, were accorded reluctantly by Mr Sita who, on Mr Napoli's version, said, "I really don't want to give it to you because if I give it to you I have to give it to everybody else." At all events, Mr Sita provided to Mr Napoli a copy of the draft AWA which had been prepared by Freehills, solicitors, on 19 November 1997. Mr Napoli made a photocopy of that document. On the following morning, Mr Sita asked Mr Napoli about his reaction to the AWA and Mr Napoli claims that he expressed dissatisfaction with the stipulation of a minimum of forty hours and a maximum of seventy-two hours a week and the requirement for drivers to be available to work on six days a week. He also complained that an hourly rate of $13.75 was inadequate for the amount of hours that could be demanded.
7 According to Mr Napoli, that response provoked an angry reaction from Mr Sita who stormed out of the room saying "I'm going to fix you up". A few days later, Mr Sita requested the return of the AWA which Mr Napoli gave to him but retained the photocopy which he had made. On 2 December 1997 a request was made to Freehills, solicitors, for a variation of the first version of the AWA to provide for an hourly rate of $13.77 and a changed formulation of the employer's right to stand down employees "for any strike, or any other unforeseen problem that may arise, eg. fuel strike, any stoppage of work for which the company cannot reasonably be held responsible." Those changes were incorporated in a fresh version of the AWA prepared by Freehills on 2 December 1997. Yet another version of the AWA was prepared, also by Freehills, on 5 December 1997 and was signed by Mr Sita as "Director". Mr Sita said that he attended a third meeting of drivers held after Christmas 1997 at which certain changes to the proposed AWA were suggested and accepted. Neither Canturi nor Napoli was present at that meeting. After that meeting, the revised AWA was, Mr Sita believed, distributed to all drivers by Robert Bruce, one of the drivers' spokesmen. In the result, copies of that document were executed by some sixteen employees and forwarded to Freehills, who acknowledged their receipt under cover of a letter dated 6 January 1998.
8 On his evidence, Mr Napoli, within a short time of his expressing dissatisfaction with the proposed AWA, was directed by the paymaster, Ms Lamburyani, to relieve another driver on the public bus route from Footscray to Melbourne. According to Mr Napoli, Ms Lamburyani indicated that the relief work would be for a short time. However, after doing that work for two weeks, it became apparent to Mr Napoli that he had been rostered on it permanently.
9 Mr Sita asserted that Mr Napoli's transfer to route service work was originally intended to be temporary but had been extended when the driver whom he replaced, Mr Stampo, failed to return to work. Mr Sita further asserted that Mr Napoli suffered no diminution in income as a result of his transfer to route service work. Mr Napoli was selected for that temporary transfer, Mr Sita said, because he had substantial previous experience on route service work. Mr Stampo's first sick leave certificate was for two weeks. At the beginning of January 1998, Mr Stampo furnished another certificate supporting a further month's absence. Mr Sita then decided to transfer Mr Napoli indefinitely to Mr Stampo's route service work. Some other drivers who had been engaged on in-bound tourist work were also diverted to route service work during January 1998. Mr Sita also claimed that he was unaware at what point Mr Napoli had conclusively refused to sign an AWA.
10 In about March 1998, Ms Torchia, a receptionist employed by Coaches, claimed to have found a discrepancy of about $48 in the returns of takings from a public bus route made by Mr Napoli. She left a note to that effect in his locker. It was the practice of the Sita business to require drivers to make up from their own money discrepancies of that kind. Mr Napoli disputed the claim that there had been a discrepancy for which he was responsible, but Ms Torchia re-calculated her reconciliation and claimed that it still disclosed the same discrepancy. She left a second note to that effect for Mr Napoli which, she claims, he later threw at her when refusing to make good the shortfall which he could not explain. She then reported the matter to Mr Sita who took away Mr Napoli's till and locker and gave instructions that Mr Napoli should no longer be rostered on routes which involved the receipt of cash. Thereafter, Mr Napoli was transferred to a school run. On one occasion, he asserted, Ms Lamburyani offered him work on a temporary public transport route which had been created because some tram tracks were under repair. However, after Mr Napoli suggested that the offer might require Mr Sita's approval, it was withdrawn. On that day, according to Mr Napoli, Mr Sita angrily said to him that he would rather lose the job than give him (Napoli) overtime. Ms Lamburyani acknowledged that she had asked Mr Napoli to do the emergency work in question. It was further her impression that, after a discussion with Mr Sita, Mr Napoli did not do the work. Mr Sita rejected Mr Napoli's assertion that he (Napoli) had been denied extra work while tram tracks were under repair.
11 On 1 June 1998, when Mr Napoli was playing squash with Mr Canturi, the applicant in proceeding VG 742 of 1999, and Mr Giovanni (John) Bono, the operations manager for the Sita business, Mr Canturi complained about his being confined to work on school runs. Mr Bono, according to Mr Napoli, replied that he, Mr Paton, Sita's job cards manager, and Paul Marchant, the assistant operations manager, had been instructed by Mr Sita that neither Canturi nor Napoli were to be given any overtime because they had not signed the AWAs.
12 On 26 June 1998 Mr Napoli complained to Mr Sita about the restriction on his ability to earn overtime. Then, according to Mr Napoli, Mr Sita replied:
"Why you come and talk to me like this instead of coming and apologise for what you did? It's not my fault, it's your fault. I told you and Michael Canturi that if you don't sign the contract I not give you any overtime. I can't afford to pay you over time of $24 an hour when 1 can give it to the people who signed the contract for $14 an hour."
13 Mr Napoli deposed that he replied "I can't go on living on $400 a week. I resign." That resignation was accepted and Mr Napoli signed a letter prepared on Mr Sita's instructions and addressed to Coaches which recited:
"I hereby wish to formally advise you of my decision to tender my resignation from Sita Coaches Pty Ltd effective 26 June 1998."
14 Mr Sita acknowledged, in relation to Mr Napoli's resignation, that the latter had complained of his inability to earn overtime. Mr Sita accepted that he had referred to a difference between $24 an hour and $14 an hour but claimed that the latter was an inadvertent statement. He also explained that he had made that statement because it was more palatable than reminding Mr Napoli that he had been taken off route service work because he could no longer be trusted with money.
15 About two weeks after his resignation, Mr Napoli obtained other work as a labourer for a transport company. At the end of July 1998, he formed a company, Napoli Removalists Pty Ltd and commenced, through it, to carry on business as a cartage contractor.
16 The evidence adduced on behalf of Mr Canturi, the applicant in proceeding VG 742 of 1999, was broadly similar to that of Mr Napoli. Mr Canturi commenced employment in the Sita business as an apprentice mechanic. Thereafter, he worked in the business in various capacities until 1986 when he became a casual coach driver. He commenced work as a full time driver in March 1994 and concentrated on driving tourist coaches although he often started the morning with a school bus run. He claims that he frequently worked long hours and was often required seven days a week.
17 When Mr Sita first broached the matter of individual employment contracts with Mr Canturi, the latter's reaction was initially favourable. However, according to Mr Canturi, when he asked "What happens if I don't sign?", Mr Sita replied, "If you don't sign then no work." Mr Canturi's affidavit then continues:
"I enquired as to whether I would be paid a flat rate to which Mr Sita replied "Yep." I said something like "At least 1 will be able to work out what I am getting paid." I found the calculations set out in my payslips confusing and often didn't seem to correspond with my hours worked. As 1 said that, Mr Sita made the sign of the cross across his chest and slammed his fist onto the table. There was no further discussion and I walked out of the room."
18 On or about 19 November 1997, according to Mr Canturi, Mr Sita gave him a copy of the draft AWA, a copy of which had also been given to Mr Napoli and said "Here, have a look at this, give it back to me tomorrow signed." In his next discussion with Mr Sita, according to Mr Canturi, he expressed dissatisfaction with the stand-down time and the hours of work stipulated by the AWA, whereupon Mr Sita snatched the documents out of his hands and said "No contract for you. I'll fix you. I'm going put you on thirty-eight hours."
19 There was no further contact between Mr Canturi and Mr Sita before a few days later when, Mr Canturi says, he spoke to Mr Giovanni Bono, Sita's operations manager. The conversation, as deposed to by Mr Canturi, was in these terms:
"Mr Bono said to me "Why did you question the contract? I now have to put you on school runs." I told Mr Bono that I didn't tell Mr Sita that I wasn't going to sign the contract and that I had just questioned it. Mr Bono said "You know what George is like. He will just push them through any way that he can. Just go and tell him you are going to sign." I asked Mr Bono whether he had read the contract. He said It is no worse than what you are getting now." I said "What I am getting now is not correct anyway."
20 According to Mr Sita, Mr Canturi, after an opportunity to peruse the 19 November draft of the AWA, responded that he wanted $22 an hour. Mr Sita further asserted that it had been conveyed to him through other drivers, Mr Bruce, Mr Pearce and Mr Johnson, that Mr Canturi, like Mr Napoli, was not prepared to sign the AWA in its final form of 5 December. That information was received before Christmas 1997 although, according to Mr Sita, he had no conversation directly with Mr Canturi about the latter's signing an AWA. Mr Sita denied that Mr Canturi had been "singled out" from other drivers after his refusal to sign an AWA. He claimed that any restrictions in the hours or kind of work provided to Mr Canturi resulted from the latter's expression of a wish not to work at night or at weekends as he had found alternative work as a "security officer/bouncer". But for that indication, as I understood Mr Sita's evidence, Mr Canturi, as his nephew, would have continued to enjoy his preferential right to have the first choice of the "cream" of the charter work. Mr Sita under cross-examination was unable to recall when he was told of Mr Canturi's expression of a desire to work elsewhere at nights and weekends. However, when re-examined, he said that it came to his knowledge early in January 1998. Mr Sita further claimed that he was unaware that the nature of Mr Canturi's work had changed after the beginning of December 1997.
21 Mr Giovanni Bono claimed in oral evidence that he had been told by Mr Canturi in the presence of Dominic Sita and John Paton in October or November 1997 in the canteen at the bus depot that he, Canturi, had another job and was unavailable to undertake work which required early starts or driving after 5.00 pm. However, no mention of that request was made in Mr Bono's affidavit in response to Canturi's assertion that he had been taken off in-bound charter work on Mr Sita's instruction after he had failed to sign the AWA. Significantly, Mr Giovanni Bono deposed in his affidavit in each application:
"6. ... ... ... I was never told by any director of Sita that after the implementation of Australian Workplace Agreements I should only give overtime to workers who had signed an agreement. However, I knew as a matter of practice that to allocate a driver who was under the award would involve costs to Sita of time and a half or double time for overtime work. For drivers who had signed the Workplace Agreement, the cost to Sita was $15.00 per hour. As my responsibility to Sita was to reduce costs, I would as a matter of course allocate overtime work to contract drivers in preference to award drivers, but I did not exclude award drivers from overtime work, as evidenced by the fact that Napoli did a considerable amount of overtime."
22 For whatever reason, the work allocated to Mr Canturi which attracted overtime was significantly reduced and, in December 1997, he was confined to school bus runs and school-related and local charter work, except for one occasion on 2 January 1998 after a particular tour group operator had specifically requested his services as the driver for a group. Mr Canturi complied with that request which had been relayed through Mr Bono but on 3 January, when he was due to carry the same group on the next day, he was telephoned by Mr Bono who said that Mr Sita had found out and had "hit the roof". According to Mr Canturi, Mr Bono went on to say "George got really angry and told me to tell you, you can't do the job so don't come in tomorrow." Thereafter, Mr Canturi was confined to bus runs to and from the airport and to school bus runs and school-related charter work. He had no weekend work and received only minimal other overtime.
23 Mr Canturi corroborated Mr Napoli's version of the squash court conversation of 1 June 1998. He also deposed that he was off work from 2 June 1998 to 12 June 1998 because of an ankle injury, for which he submitted a workers' compensation claim.
24 On 12 June 1998, Mr Canturi was telephoned at home by Mr Andreacchio, Sita's accountant, who said "There is no work for you so Mr Sita has decided to pay you out." Mr Canturi disputed the assertion that there was no work, pointing to the number of part-time drivers then working for Sita. After Mr Andreacchio made no response, Mr Canturi asked him to put his intimation in writing. There was thereupon delivered to Mr Canturi's home on the following day a letter dated 12 June 1998 which recited:
"Dear Michael
RE: TERMINATION OF YOUR EMPLOYMENT
1 am writing to inform you that your services as a Coach Driver at Sita Coaches Pty. Ltd have been terminated as of 12 June 1998. The reason for your dismissal is that we doubt your claim that you injured yourself whilst performing your work duties.
We have evidence to substantiate that on the evening of 1 June 1998 youplayed squash without any signs of incapacity or complaint of injury. On the morning of the 2 June 1998 you rang the office informing them of your inability to attend work due to an alleged work related injury allegedly sustained on the 1 June 1998. You finished work at approximately 4.30 pm on the 1 June 1998 without reporting any injury to any staff member, you then went on to play squash that same evening. Accordingly, the last time you drove a coach or bus could only have been prior to playing squash on the evening of 1 June 1998 and therefore unable to sustain a work related injury.
This alleged injury' resulted in two medical certificates for one week each. Furthermore you were seen driving your vehicle, whilst claiming incapacity to drive a fully automatic bus.
We consider this to be a most serious breach and a dereliction of your terms of employment. Accordingly, enclosed is your termination pay and your medical bill of $30.85 which is returned to you due to the nature of the claim.
We regret having to take these measures but we feel that you have left us with little alternative."
25 The applicants also adduced evidence from Mr Mesiti, a former district operations officer with the Public Transport Corporation, who had been employed by Bus Lines from October 1991 to February 1998 as Route Service Supervisor and Training Supervisor. In the course of that employment, he had been required to investigate complaints made against Sita drivers. The only complaints he recalls having been made against Mr Canturi were one that he had used a mobile telephone while driving, and another that he had been guilty of speeding. He also deposed:
"I was the person who was responsible for the rostering of weekend work which was obtained by Sita from the Public Transport Corporation. In or about December 1997, Mr John Paton of Sita advised me that Frank Napoli and Michael Canturi were not to be put on any weekend rosters and were not to be provided any extra overtime. He told me that they would not be given any inbound work. Mr Paton stated that the reason for this was that they had not signed workplace agreements and that they were not to be provided extra overtime until the agreements were signed. The conversation took place in the office in which John Paton and I had our desks. As a result of this conversation I did not roster Mr Napoli or Mr Canturi for extra work when it became available. At this time there was work available on weekends."
26 An affidavit by Giovanni Bono, the Sita Operations Manager, was filed on behalf of the respondents. He deposed that he was aware that there had been discussions between Mr Sita and various drivers or their representatives about successive drafts of the AWA "before the final version was agreed to by nearly all the drivers". Mr Bono also deposed that he was under no instruction from Mr Sita stipulating that Napoli and Canturi should not work any overtime.