Gatzounas v Toll Transport Pty Ltd

Statutory Framework

1. Sections 314 and 315 of the Act relevantly provide: 314 Jurisdiction with respect to reinstatement of contracts (1) The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or contract of carriage that has terminated. (2) Reinstatement of a contract includes re-engagement under a similar contract. (3) A contract determination under this section may be made on such terms and conditions as the Commission thinks fit, including provision for any period after the termination of the contract to be treated as a period of engagement under relevant contracts. (4) If the Commission considers that it would be impracticable to make a determination for reinstatement, the Commission may order the bailor to pay to the driver, or the principal contractor to pay to the carrier, an amount of compensation not exceeding the amount of remuneration of the driver or carrier under relevant contracts during the period of 6 months immediately before the termination of the contract. (5) When assessing any compensation payable, the Commission is to take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received in alternative engagements, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements. (6) A contract determination under this section takes effect when it is made, and is not required to have a specified term or to be published on the NSW industrial relations website. 315 Conference to precede contract determination (1) When application is made to the Commission to exercise its jurisdiction under this Part, the Commission must, before it considers the application, summon to attend and confer with the Commission the applicant and such other persons served with the application as the Commission may direct. (2) At the conference, the Commission is to: (a) ascertain which of the matters with which the application is concerned are in dispute and which are not, and (b) ascertain whether there are any special circumstances or problems existing with respect to contracts of the class with which the application is concerned, and (c) take all reasonable steps to effect an amicable settlement of any matters in dispute. (3) After conferring on an application, the Commission may: (a) dismiss the application, or (b) proceed to hear the application or specify a time and place at which it will be heard, or (c) adjourn the application for such period or periods as it thinks fit. (4) Before hearing an application, the Commission may require service of the application on such persons as it may direct.
2. Section 314 of the Act does not, on its face, provide any real guidance as to how applications should be dealt with in circumstances where reinstatement of the contract is sought. In Transport Workers' Union of New South Wales (on behalf of Jay Peter Hornsey) and Langmana Pty Ltd and others [2015] NSWIRComm 1025, the Commission as presently constituted referred to the decision of Justice Backman in Transport Workers' Union of New South Wales (on behalf of Darren Roger Bargwanna) and Robar Enterprises Pty Ltd [2013] NSWIRComm 84 where her Honour stated at [56] - [57]: 56. Section 314 gives no guidance on the principles to be applied. Section 314(1) simply refers to a contract of carriage "that has terminated". Commentary to the section set out in the Butterworth's looseleaf service refers to termination (of the contract) by the principal contractor or by the carrier or by the effluxion of time or by operation of law. Section 314(1) empowers the Commission to make a contract determination with respect to reinstatement. A provision in identical terms to s 314(1) was the now repealed s 680(3) of the Industrial Relations Act 1991. In Deltec International Courier Pty Limited v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341, a Full Bench made the following observations on the operation of the sub-section (at 349): The first thing to observe about the sub-section is that it enables the Commission to make a contract determination referable to a contract of carriage "that has terminated": and to grant relief "with respect to the reinstatement" of that contract. The sub-section is thus concerned, in its terms, with relief against contracts which have come to an end for whatever reason, termination by the principal contractor or by the carrier or by the effluxion of time or by operation of law, and where there may or may not be cause for terminating the contract, and the relief provided is a determination with respect to the reinstatement of the contract. In other words, the sub-section is not concerned with the concept of dismissal as in an employment relationship and which is catered for now in Pt 8 of Ch 3 of the Act, or previously by s 20A and other relevant provisions in the former Industrial Arbitration Act, where the remedies of reinstatement, re-employment and compensation for lost wages are available. Here, there is the single remedy of a determination with respect to the reinstatement of a contract of carriage between a principal contractor and a carrier, not, we emphasise, concern with some concept of re-engagement or the re-making of a contract of carriage comparable to the re-employment of an employee. 57. In Cherry v Allied Express Transport (1997) 73 IR 305, Peterson J, dealing with an application under s 314 of the Act, referred to an amendment made to the Industrial Arbitration Act 1940 which resulted in the conferral of power to make a contract determination for the reinstatement of a contract of carriage, "that has terminated". In the course of reasons on the issue, Peterson J also considered the historical context underpinning the amendment, remarking (at 309): ... In the light of this history, it seems to me appropriate to interpret the power as one which is to be applied, at least if not solely, in circumstances where there has been an "unfair" termination of a contract of carriage. This means that it may be applied in the same circumstances as apply to employees. Here that involves considerations of resignation or constructive dismissal, reinstatement and compensation.
3. The decision in Cherry v Allied Express Transport (1997) 73 IR 305 supports the proposition that when considering an application under s 314 of the Act, the Commission should consider the various factors set out under s 88 as are relevant to the termination of a contract determination.
4. Section 314 is also enlivened on the grounds that the respondent terminated the contract. Further, the jurisdictional requirement that the applicant has elected to seek reinstatement has also been satisfied. It is only in circumstances where the Commission considers that reinstatement is not practical that it may order compensation.
5. A conference pursuant to s 315 of the Act was convened on 11 September 2015. That conference failed to resolve the matter and Directions for arbitration were subsequently issued.

Respondent's Policies and Contractual Terms

1. The respondent sought to rely on the following policies and contractual terms to support the proposition that termination of the applicant's contract was not harsh, unjust or unreasonable: 1. Clause 12 of the contract carrier agreement which sets out "Toll Values" in the following terms: The parties agree that they will treat each other, and perform their respective rights and obligations under this Agreement, in accordance with the Toll values of: 1. Integrity and trust 2. Safety 3. Continuous Improvement 4. Teamwork 5. Being open and transparent 1. Clause 14 of the contract carriers agreement deals with "Carrier Commitment" where: ...the Carrier Commits: 1. To performing their duties faithfully and diligently; 2. To provide faithful service during their engagement with Toll and to act in Toll's best interest at all times; and 3. To promote Toll's interests, prosperity and reputation. 1. The Toll Group Code of Practice - Workplace Behaviours and Standard which deals with the distinction between appropriate and inappropriate behaviour and seeks to promote the respondent's commitment to positive workplace behaviour and the requirement to "comply with the law".

Evidence

1. In deciding this matter, I have given consideration to all the written and oral witness evidence. Key aspects of that evidence is set out below.

Mr Con Gatzounas

1. The evidence of Mr Gatzounas was that he commenced work with the respondent in July 2011. At that time, he received no on-the-job training.

September 2014 Newtown Incident

1. On 2 September 2014, Mr Gatzounas made a delivery to a house in Alice Street, Newtown at or around 4:10pm. The customer was waiting on her verandah and when the applicant approached her to make the delivery, he noticed she was visibly upset. He asked, "How are you?" and the woman failed to respond. As he began to pass the parcel to her, the customer "snatched it from my hand". When asked to sign the scanner as required by the respondent, she simply turned around and walked away. The applicant deposed he followed her and stated words to the effect: "You need to sign for the delivery."
2. The customer subsequently signed the scanner and when asked for her name, as required by the respondent, she replied with words to the effect: "What do you think it is, you idiot! It's on the parcel, can't you see." The applicant replied with words to the effect: "I'm just confirming that the signature is the same as the name on the parcel." The customer subsequently replied: "Idiot, my name is on the parcel."
3. Following the above exchange, the customer stated the respondent's parcel service was disgraceful. She had been tracking the parcel since 6:00am and enquired why the parcel had travelled to Bankstown from the Erskineville Depot and back again. Mr Gatzounas told her he did not know those reasons. In response to her demeanour, he backed away from her which was consistent with a management instruction to be applied in hostile circumstances.
4. Mr Gatzounas confessed that as he walked away from the customer towards his delivery van, he mumbled under his breath, words to the effect: No, you're the idiot, not me. Mr Gatzounas did not think the customer heard his exchange, as there was no reaction from her. He subsequently continued his delivery run without further incident.
5. On 3 September 2015, the Fleet Supervisor, Mr Sam Boland contacted Mr Gatzounas to advise that a complaint had been made concerning the Newtown delivery. Mr Boland intimated, "The woman sounded like a bit of a nutter" and sought his explanation of the alleged incident It was the applicant's understanding that "Mr Boland and I considered the matter resolved".
6. Shortly thereafter on 8 September 2014, Mr Gatzounas received a letter from the then Branch Manager, Mr Pomroy containing three allegations concerning his conduct. He was subsequently stood down pending an investigation.
7. Mr Pomroy sought to rely on the following allegations to support the proposition that Mr Gatzounas had engaged in misconduct and accordingly, had breached the Toll Group's values of trust and integrity: Allegation 1 On 2 September 2014, during the delivery of consignment AMHA639171, you verbally abused the customer saying to her "you can stick it up your arse"; Allegation 2 On 2 September 2014, during the delivery of consignment AMHA639171, you verbally abused the customer calling her an "idiot"; Allegation 3 Your verbally abusive conduct on 2 September 2014 damaged the reputation of Toll Holdings Ltd. The respondent contended it was seeking to rely on the evidence concerning the customer's complaint to the Toll customer service line and information provided by Mr Gatzounas to Mr Boland and a Mr Darrell Piper.
8. Mr Gatzounas subsequently provided the following written response to the allegations: Allegation 1 I did not say at any time, "you can stick it up your arse". Allegation 2 I did not verbally abuse the customer at any point. Allegation 3 I am fully aware of my obligation to Toll and value my position in the company highly. I would never put myself in a position to jeopardise Toll's reputation. Or my own intentionally.
9. On 17 September 2014, Mr Gatzounas was informed the investigation had substantiated allegations two and three. Such behaviour was in breach of the Toll Group Code of Practice. He received a first and final written warning.

April 2015 Incident

1. In April 2015, Mr Boland advised Mr Gatzounas of a complaint concerning an incident at Sydney University A few days later, he met with Mr Boland, Mr Moore, Delivery Manager, and the Union delegate, Mr Paul Newton where it was alleged: …you nearly ran someone over while reversing at the University while they were walking behind your van. Mr Gatzounas' response was as follows: I was reversing and I heard someone yell something out. I poked my head out the window, apologised and drove off. I thought that was the end of it. Mr Moore subsequently stated the complainant "has got photos of you doing it. I don't know what he's doing if he has time to take photos if you're reversing into him. As Mr Moore did not take the matter further, Mr Gatzounas considered the University incident had been resolved.

July 2015 Incident

1. On 10 July 2015, Mr Gatzounas was required to make a number of inner Sydney deliveries. Those deliveries were made in the following order:

• Colostomy Association, 7 Bridge Road, Stanmore;
• Reece Plumbing, 20 Bridge Road, Glebe; and
• Glebe Dental, 246 Glebe Point Road, Glebe.

1. Mr Gatzounas' explanation concerning the sequence of his deliveries and the delivery route taken was set out and clearly marked on a Google Map attached to his statement. He was emphatic that he did not drive down Wentworth Park Road as alleged.
2. Mr Gatzounas contended that after he left the Colostomy Association in Stanmore, he turned right onto Parramatta Road before turning left onto Pyrmont Bridge Road. He then continued along Pyrmont Bridge Road as it turns into Bridge Road Glebe.
3. After the Reece Plumbing delivery, Mr Gatzounas stated he drove through a left-hand bend along Bridge Road before turning right into Railway Street and then left into Darling Street, Glebe.
4. Following the Reece Plumbing delivery, Mr Gatzounas stated that as he was about to drive off, "a man approached me with his mobile phone out, seemingly recording me". Mr Gatzounas wound his window down and "the man raised three points about me that he was unhappy with". Two issues he recalled concerned "parking in a no stopping zone and almost running him over". Mr Gatzounas also recalled telling him he had parked in a loading zone before driving off, "removing myself from the situation".
5. Shortly afterwards Mr Boland called him to check his registration details and advised him that a complaint had been made concerning his conduct. He was later suspended pending an investigation. He subsequently met with Mr Boland and two others on 13 July 2015. He could not recall that during the course of that meeting he had denied the allegations.
6. Mr Gatzounas met with Mr Nick Kypreos, Branch Manager and Mr Newton on 22 July 2015 when the text of a show cause letter was read to him setting out the following allegations: Allegation It is alleged that on Friday, 10 July 2015, you were rude and abusive towards a member of the public while conducting deliveries on behalf of Toll Priority.

Particulars to the Allegation (a) You drove very close to and behind a member of the public who had not yet finished crossing Wentworth Park Road as you turned into the same road; (b) As you turned into Wentworth Park Road, you sounded your horn, shouted at, and raised your middle finger at the member of the public; (c) You then parked your van and when the member of the public approached you about your behaviour towards him, you did not deny his comments that you had driven close behind him, sounded your horn at him, shouted at, and raised your middle finger towards him. (d) This conversation was filmed by the member of the public on his mobile phone. The alleged behaviour outlined above is inappropriate because: (a) Through your behaviour you have breached the Toll Code of Practice, Workplace Behaviours section which states that we will treat everyone in line with our belief that if you show respect you will be respected; (b) We will support and promote Toll's commitments to positive workplace behaviour; (c) Through your behaviour you have breached the Toll Workplace Behaviours Policy which states that we will ensure that our customers, suppliers and other external parties are treated by Toll representatives in line with our beliefs and values; and (d) Your behaviour resulted in a complaint which has a potential to impact on Toll's reputation. As indicated, Toll Priority is treating this matter seriously and dependant on your response will consider all its options including termination of your contract. Please be aware that in deciding appropriate disciplinary action, I will also be taking into consideration your performance history. This includes: 1. A First and Final Warning issued to you on 16 September 2014, following receipt of a complaint that you verbally abused a Toll customer. 2. A verbal Warning issued to you on 23 April 2015 following receipt of a complaint from a member of the public that you nearly ran him over when you reversed your van, and yelling at and abusing that member of the public. If the allegations are found to be substantiated, this matter may lead to disciplinary action being taken against you, which may include termination of your contract with Toll Priority.

1. Mr Gatzounas was subsequently directed to provide a written response to the allegations and "show cause" why his contract should not be terminated for breach of the respondent's policy.
2. In a "show cause" response dated 28 July 2015, Mr Gatzounas denied he was rude and abusive towards a member of the public "whilst driving on Wentworth Park Road" as alleged on 10 July 2015. He was emphatic that no such incident took place. Moreover, the Reece Plumbing loading bay had just received a bulk delivery rendering it inaccessible. In such circumstances, it was customary for delivery drivers to park in the loading zone. His response included the following statements: In the paragraph pertaining to particulars to the allegation, you state when this person filmed me, I did not deny his comment. This is due to the fact that this was the first time I had ever seen this person and didn't know what he was talking about. The video clearly demonstrates this. I would like to point out management has encouraged minimal to non-engagement in such circumstances. I was of the opinion this man was challenging me over where I parked my van. Not being exactly sure what he was upset about I tried to politely explain that I was parked in a loading zone. I felt this man's tone of behaviour was confrontational so I ceased further engagement immediately. In regards to the parking issue, I would like to explain the circumstances. Reece Plumbing is a regular delivery within that run area so I am familiar to the problems encountered affecting that particular day. On that particular day, the loading bay had just taken receipt of a bulk delivery rendering it inaccessible. In such circumstances, it is customary practice with approval of Reece to park where I did to effect the delivery.
3. Mr Gatzounas also stated he and Mr Newton were afforded an opportunity to review the video provided by the complainant on 24 July 2015 and in his view, "the video showed that I had done nothing wrong and that I hadn't abused the member of the public as alleged".
4. On 12 August 2015, Mr Gatzounas met with Messrs Kypreos, Newton, Pirc, Moore and a human resources representative and was advised that his contract would be terminated with immediate effect, on the grounds that the allegations made had been proven to the requisite standard and, that he had been warned on two previous occasions concerning similar behaviour. The letter of termination issued by Mr Kypreos stated in part: I have considered your responses at the meeting with Sam Boland and Michael Moore, your written responses to this allegation, the previous two complaints and your responses to those complaints. I have considered your age and length of service with Toll. The behaviour outlined above has breached Toll's Value of Integrity, Toll's Code of Practice, that section dealing with Workplace Behaviours, and Toll's Workplace Behaviours Policy. Your behaviour towards Toll's customers is not in accordance with the behaviours expected of you as a Toll representative. I am concerned at your lack of acknowledgement and failure to accept responsibility for your conduct. I am also concerned at the similarity of the conduct with the previous two incidents, even though you were given the benefit of the doubt in the second incident. I am satisfied that you have engaged in an unacceptable pattern of behaviour which has resulted in complaints to Toll, potentially impacting our reputation. After considering all the information before me, I have determined that Toll cannot continue to engage you. Accordingly, I have decided to terminate your engagement with Toll Priority effective immediately on receipt of this letter. You will be required to return all Company property in your possession before final payment is made to you.
5. In cross-examination, Mr Gatzounas confirmed that whilst employed by the respondent, he had received no formal training as opposed to any on-the-job training.
6. In relation to the September 2014 Newtown incident, Mr Gatzounas further denied he had been abusive, aggressive or had made inappropriate remarks to the customer. Moreover, in relation to that particular incident, Mr Gatzounas did not regard the fact that he had "removed himself from the situation" as recommended by management could be classed as training.
7. Mr Gatzounas confirmed that he was given "the benefit of the doubt" in relation to the April 2015 Sydney University incident where it was alleged that he had both abused and had nearly reversed his vehicle into a customer.
8. In relation to the July 2015 Reece Plumbing incident, Mr Gatzounas denied there was any heated exchange between the complainant and himself.
9. Mr Gatzounas agreed with the proposition that in working for the respondent, he needed to understand the importance of the Toll brand and its reputation as well as the requirement to be polite and courteous at all times to customers and the general public. In that regard, Mr Gatzounas said he understood the respondent would not tolerate drivers being rude or abusive to customers and that such conduct could cause it reputational damage
10. In re-examination, Mr Gatzounas stated that in relation to the September 2014 Newtown incident, the respondent had found on the balance of probabilities that he was guilty of calling a customer an idiot. The remaining allegations could not be substantiated.
11. Mr Gatzounas also reconfirmed that in the course of his employment with the respondent, he had received no formal training. He said that he received "learning on-the-job" through a buddy system where another driver would teach him various work-related procedures. Mr Gatzounas also stated that during the course of a Toolbox meeting at the Erskineville Depot, the Union had instructed drivers to remove themselves from difficult situations involving customers.

Mr Paul Newton

1. Mr Newton was not required for cross examination.
2. Mr Newton deposed he was a contract driver for the respondent.
3. Mr Newton contended the respondent did not provide adequate training to contract carriers. The Erskineville Training Co-Ordinator position had been vacant since late 2014.
4. Mr Newton stated that in circumstances where a carrier may face an irate or unhappy customer, the respondent together with the Union's delegates have instructed the carrier to disengage and move themselves away from the customer. It was Mr Newton's evidence that the respondent had relied on tool box talks to instruct carriers on how best to deal with irate customers and no formal training had been afforded to them.
5. It was Mr Newton's evidence that the video concerning the Reece Plumbing incident showed Mr Gatzounas disengaging from the member of the public.
6. Mr Newton supported Mr Gatzounas during the relevant investigations. Despite a number of requests seeking information, the only information related to the Reece Plumbing incident concerned a redacted email dated 10 July 2014 written by the respondent's Fleet Supervisor concerning the complaint made at that time.

Mr Robert Pirc

1. Mr Pirc is an official employed by the Union. He was not required for cross examination.
2. Mr Pirc provided industrial support to Mr Gatzounas in relation to the July 2015 Reece Plumbing incident. Mr Pirc did not consider the respondent had provided any "hard" evidence to support the allegations concerning this incident.
3. Mr Pirc considered the complainant's video shows Mr Gatzounas had "disengaged" from the situation created by the member of the public filming him at the time, consistent with the respondent's training and policy.
4. Mr Pirc contended Mr Gatzounas would have been in a position to better respond to the allegations had all the evidence relied upon by the respondent been made available to him.
5. Mr Pirc recalled that on 14 August 2015, he attended a meeting at the respondent's Bankstown depot with Ms Stephanie Callaghan (NSW/ACT Operations Manager), Mr Kypreos, and Mr Matt Cook (Bankstown Manager). Mr John Visser (TWU Delegate), Mr Barry Faucett (TWU Head Delegate and Committee of Management Member) and Mr Nathan Kitt (Manager, First Choice Diagnostics) were also present at the meeting called to discuss random drug and alcohol testing. Mr Pirc deposed that during the course of the meeting he said words to the effect: "Maybe not now but in the near future we need to have a meeting with regard to driver protocols and setting something up when dealing with members of the public".
6. Ms Callaghan subsequently stated she was happy to have such a discussion. Shortly thereafter, Mr Pirc recalled the following discussion with Ms Callaghan: Pirc: What we're upset about is that we've been asking for a policy about handling members of the public for a while now and nothing has happened. Now we've got a member of ours who was sacked this week because a nutter came up to him … videoing him with a phone. He disengaged, as he should but he was sacked anyway. We want to develop a set of protocols to deal with it. Callaghan: Well there's more to it than that, the guy who complained was on a video conference call when the incident occurred. The video conference people heard the driver swear and told the complainant to follow it up. Pirc: This is the first we've heard about this...
7. The delegates and Mr Pirc subsequently met and determined Mr Gatzounas required "all the evidence" to properly defend the allegations. They met with Ms Callaghan again on 17 August 2015. However, their request for a copy of the relevant video evidence was refused. They were given a copy of the redacted email referred to below in Mr Visser's evidence.

Mr Johannes Visser

1. Mr Visser was a work colleague of Mr Gatzounas and Bankstown Depot Union delegate.
2. Mr Visser deposed that he met with Ms Callaghan, Union delegate Mr Faucett, Mr Kypreos and others in August 2015 to discuss elements of the respondent's drug and alcohol policy.
3. Immediately prior to the commencement of the meeting, Mr Pirc was discussing Mr Gatzounas's circumstances with Ms Callaghan and the need for driver training concerning abusive customers. Mr Visser subsequently noted the following: During the meeting Ms Callaghan stated there was other evidence relating to Mr Gatzounas's matter. She said that the person who had complained about Mr Gatzounas was on a video conference call when the incident was alleged to have occurred. Ms Callaghan further made mention that it was alleged that the people on the video conference with the complainant could hear him abusing the complainant as he drove by. I asked 'what about the video evidence from when the guy approached Con?' Ms Callaghan replied 'we did not use that'.
4. Following the meeting, Mr Visser, Mr Pirc and Mr Faucett met to discuss the conversation with Ms Callaghan. Mr Pirc was subsequently instructed "to demand that Ms Callaghan provide the TWU with all the relevant information".
5. On 17 August 2015, a further meeting was held with Ms Callaghan, Mr Pirc, Mr Faucett, Mr Newton, Mr John Peacock, (General Manager Operations) and Ms Emilia Cvetkovic (HR Manager). During this meeting Mr Pirc stated "We need to see that evidence you were talking about on Friday". Ms Callaghan denied the respondent had taken into account evidence other than what had been provided to Mr Gatzounas and said 'that has nothing to do with it'.
6. It was Mr Visser's evidence that despite representations made to the respondent for "all the evidence", the Union was only provided with a redacted email from a supervisor concerning the complaint made by the member of the public.

Ms Emilia Cvetkovic

1. Ms Cvetkovic is the respondent's Regional Human Resources Manager.
2. Much of Ms Cvetkovic's evidence focussed largely on the nature of the allegations, the investigation(s) undertaken by the respondent, the investigation findings, Mr Gatzounas' ultimate show cause response culminating in the decision to terminate his contract.
3. The nature of the complaint concerning the 10 July 2015 Reece Plumbing incident was set out in an internal communication attached to Ms Cvetkovic's statement: Hi Team Syd Toll driver - Drivers rego: CD6XXX Incident occurred: Glebe/Pyrmont area Greg was crossing the street this morning - about 8am - the driver drove quickly behind the customer and became abusive towards Greg - he proceeded to stop in a no stopping zone to make a delivery this morning. When confronted by Greg - the driver denied parking in a no stopping zone, but a loading bay. Greg was coincidentally making a film at the time - and has filmed this incident. Customers Expectation - to receive written apology from the driver - or customer will release this video to the media and "authority" - wants anger management counselling for driver -Toll to remind driver the importance of general road rules …
4. However, Ms Cvetkovic's written evidence concerning the applicants alleged conduct differed slightly: "…Toll's Feedback line received a complaint alleging that a driver (subsequently found to be the applicant), drove quickly behind him before he had finished crossing the road, sounded his horn, shouted out, and raised middle finger at the complainant. The complainant followed the applicant around the corner where he had allegedly parked the vehicle illegally in a no stopping zone and approached the applicant about his previous driving behaviour and illegal parking of the van …" (emphasis added)
5. It was Ms Cvetkovic's evidence that when interviewed, Mr Gatzounas denied he drove quickly behind the customer and that the vehicle had been illegally parked.
6. Ms Cvetkovic spoke to the complainant on 15 and 16 July 2015 and was provided online access to the complainant's video footage concerning the incident.
7. Ms Cvetkovic stated she had also considered the September 2014 Newtown incident and in that regard, a copy of the relevant Toll Operations Driver Service Failure Report dated 2 September 2014 was attached to her statement. The nature of that complaint, the Newtown incident, was stated to be as follows: Customer called absolutely irate, saying she has had multiple issues with Toll in the past and when she expressed these concerns to the driver who delivered her item today he responded by saying "Stick it up your ass" and left.
8. In the course of conducting her enquiries concerning the 10 July 2015 incident, Ms Cvetkovic became aware of a further Driver Service Failure Report concerning Mr Gatzounas dated 15 April 2015 concerning the Sydney University incident. In that Report, the complainant had stated: I was crossing a laneway on campus of University of Sydney. This driver was stopped in the laneway in reverse gear. I waited for him to back out, but he was on his computer or phone and not moving. I started to cross the laneway only to have him reverse (without looking) and almost hit me with the vehicle. I had to yell at him to stop. He then proceeded to yell abusive language at me, and try to blame me for the incident. I have photos of this incident.
9. Following an investigation, the respondent decided not to further pursue this particular matter.
10. Ms Cvetkovic stated it was Ms Callaghan who ultimately decided that termination was appropriate given two complaints of inappropriate and unprofessional conduct over a ten month period. Toll could ill afford to have its reputation tarnished by Mr Gatzounas' conduct.
11. Ms Cvetkovic stated that Mr Pirc had alleged the respondent had made a decision based on information not made available to Mr Gatzounas. It was her evidence that both she and Ms Callaghan "attempted to assure Mr Pirc and other TWU members present ... that this was not the case".
12. Ms Cvetkovic stated that during the course of the meeting convened to discuss drug and alcohol testing on 14 August 2015, Ms Callaghan said the evidence supported the respondent's decision to terminate the contract carrier agreement. Moreover, the decision was based on a pattern of unacceptable behaviour that put the respondent's reputation at risk.
13. Ms Cvetkovic also stated that Ms Callaghan had attempted to minimise discussion concerning Mr Gatzounas. However, she did state that she was aware that a number of people who were conferring with the complainant during his phone teleconference had urged him to make a complaint.
14. In cross examination, Ms Cvetkovic confirmed that she was involved in the Newtown and Reece Plumbing incident investigations.
15. In relation to the September 2014 Newtown incident, it was Ms Cvetkovic's evidence that the respondent relied upon the following customer complaint to justify the first and final warning: Customer called absolutely irate, saying she has had multiple issues with Toll in the past and when she expressed these concerns the driver who delivered her item today he (sic) responded by saying "stick and up your ass" and left.
16. With respect to the Reece Plumbing incident, Ms Cvetkovic stated there was nothing in the available video evidence to suggest that Mr Gatzounas was abusive or offensive towards the complainant. She further confirmed there was no video to support the proposition that Mr Gatzounas had abused the complainant. The complainant had failed to provide his reasons for not supplying the video footage to support his allegation concerning abusive conduct. The following exchange ensued: Q: Right. So it didn't concern you as an investigator, and ultimately a counsel in a disciplinary procedure that video was alleged to have existed and then it didn't exist, you nevertheless believe that the video would have existed somewhere along the line? A: The complainant said that he was on a meeting, a video conference or something like that, while Mr Gatzounas was driving behind him, and that others heard the abuse of Mr Gatzounas. The complainant then said that weekend his phone broke, his phone, and he was not able to retrieve that video evidence. So, I have no reason to doubt that it didn't exist, but it didn't exist after he said that his phone broke. … Q: And it wasn't of concern to you that the video, the first video, the incriminating video, was otherwise unavailable? A: It's not whether it was a concern to me or not. The complainant said it was and then it wasn't. There is nothing that I can do about that.
17. Ms Cvetkovic could not recall whether the formal Reece Plumbing incident report was given to Mr Pirc as requested during the course of the 14 August 2015 meeting. While Ms Cvetkovic recalled a conversation between Mr Pirc and Ms Callaghan during that meeting concerning Mr Gatzounas, where the Union had sought the additional information mentioned by Ms Callaghan, she maintained there was no additional information to provide.
18. Ms Cvetkovic stated all the evidence relied upon by the respondent in making its decision had been provided to Mr Gatzounas. She could not recall Ms Callaghan saying words to the effect of, to Mr Pirc, "Well, there's more to it than that".
19. Ms Cvetkovic was aware that Mr Gatzounas had denied that his vehicle was illegally parked at Reece Plumbing and the fact that delivery drivers occasionally parked across driveways in order to make their deliveries.
20. In relation to the rollout of the respondent's Workplace Behaviours Policy, Ms Cvetkovic contended Mr Gatzounas should have been involved in the April 2015 briefings at the Erskineville depot. However, she had been unable to determine whether or not Mr Gatzounas actually attended the briefing because the Union delegates at the time had directed employees not to sign the relevant attendance list.
21. Ms Cvetkovic stated that she had asked her managers to make a note of who attended the briefings. However, no records were found during the investigation to support the proposition that Mr Gatzounas had been trained.
22. Moreover, Ms Cvetkovic reluctantly agreed with the proposition that there was nothing in her statement that established there was an actual rollout of the Policy. Similarly, there was no evidence to suggest that Mr Gatzounas had been trained in the Toll Group Code of Practice Policy since she had commenced work with the respondent in August 2014. To her knowledge, there was also no evidence that he had been given a copy of the Policy or had been tested concerning its application.
23. Further, Ms Cvetkovic also agreed "there was no, in any shape or form", remedial training given to Mr Gatzounas following this incident in 2014.
24. The following exchange ensued concerning the Reece Plumbing incident investigation: Q: So you just thought it appropriate to put the policies to him in any event? A: I thought it appropriate because it's expected that people would be aware of the Toll Group Code of Practice and also because Mr Gatzounas had received a previous warning, a first and final warning, informing him of the Workplace Behaviours and Toll Group's Code of Practice.
25. Ms Cvetkovic confirmed that she prepared the draft show cause letter dated 22 July 2015 for Mr Kypreous and agreed that the respondent had no evidence concerning Code of Practice and the Workplace Behaviours Policy and Standard training afforded to Mr Gatzounas. Moreover, the Reece Plumbing video evidence did not show that Mr Gatzounas had breached either of those policies.
26. It was Ms Cvetkovic's evidence that she simply did not know whether the respondent took steps to investigate whether the Reece Plumbing incident complainant had had any previous issues with its courier services.
27. Ms Cvetkovic acknowledged that in relation to the September 2014 Newtown incident, where in part the customer alleged Mr Gatzounas had told her to "stick it up your arse", she could not recall any specific conversations with the complainant during investigation to determine whether she heard his comment, "you're the idiot, not me". She agreed Mr Gatzounas had volunteered that he had made that comment "to himself". The following exchange ensued: Q: Now the customer never once said, or alleged, that Mr Gatzounas called her an idiot, did she? A: No Q: And that the only evidence before Toll was that Mr Gatzounas mumbled "you're the idiot, not me", that's correct? A: Correct.
28. Ms Cvetkovic said she regarded the "stick it up your arse" and "you're the idiot, not me" comments disparaging and offensive.
29. In response to a question concerning how the respondent could, on the balance of probabilities, determine that the mumbled comment, "you're the idiot, not me", was actually heard by the complainant and therefore substantiated, Ms Cvetkovic stated: A: A disparaging comment was made. The complainant heard something, whether it was "stick it up your arse" or him mumbling that "she's an idiot", both of them are totally unacceptable conduct. So we believe that the complainant heard something, that is (sic) was disparaging, it was offensive and she complained about him, and that did damage the reputation of Toll. … Q: He admitted that he mumbled it and that he was of the view she didn't hear did she not? A: That was his view but he still referred to one of our customers as an idiot. Q: But the evidence supports - their evidence, the complainant's evidence, supports that she didn't hear that doesn't it? A: Her evidence is that he told … her to stick it up your arse, yes. Q: But her evidence is not that he mumbled, "you're the idiot, not me" A: No.?
30. Ms Cvetkovic agreed with the proposition that in relation to the Sydney University incident on 15 April 2015, there simply wasn't enough evidence to proceed with the matter beyond a discussion between Mr Gatzounas and his managers. It was also customary for local management to deal with minor disciplinary or performance related issues. The following exchange ensued: Q: So would you agree with me that the matter was put to bed at that point, the matter was resolved? A: Well local management took no further action on it, they didn't inform senior management or myself about it, but as far as local management was concerned, they'd closed off. … Q: Right. And no further action was taken with respect to Mr Gatzounas? A: No. Q: And no further investigation was conducted in relation to the incident on 15 April 2015? A: No. Q: Right. Was the incident of 15 April 2015 taken into consideration when dismissing Mr Gatzounas? A: Yes.
31. Ms Cvetkovic explained the respondent's investigation concerning the Sydney University incident comprised a discussion between Mr Gatzounas and local management. No warnings were given. Ms Cvetkovic stated the abusive behaviour subject to this complaint was similar to the Newtown and Reece Plumbing incident complaints. She conceded that despite management taking no action against Mr Gatzounas and "closing this matter out", "the complaint was similar to the previous complaints so was taken into consideration".
32. Ms Cvetkovic agreed it was possible that Mr Gatzounas drove down Bridge Road towards Reece Plumbing and rather than Wentworth Park Road as alleged.
33. Ms Cvetkovic confirmed a photograph taken by the complainant to the Sydney University April 2015 incident showed nothing other than a white van. Efforts were made to contact the complainant directly. However, such efforts had failed. Similar efforts were made to contact the complainant concerning the July 2015 Reece Plumbing incident "to confirm his statement with him directly". That complainant failed to return the respondent's telephone calls.
34. It was Ms Cvetkovic's evidence that she had never met Mr Gatzounas. Nor had Ms Callaghan and Mr Joshua Peacock who collectively provided advice to Ms Felicity Heron, the ultimate decision maker.

Ms Stephanie Callaghan

1. Ms Callaghan is the respondent's NSW/ACT Operations Manager.
2. Ms Callaghan deposed she was aware of the 10 July 2015 incident, the final warning given to Mr Gatzounas "for similar behaviour" concerning the Sydney University incident in September 2014 and the Newtown incident in April 2015.
3. When Ms Callaghan met with Mr Kypreos following the Reece Plumbing incident, she became aware of the fact that the complainant had uploaded video footage of the incident "onto the web".
4. Ms Callaghan contended that after she had spoken to the complainant directly, she concluded, "based on the evidence (I) formed the view that what he said happened to be the truth". Mr Gatzounas was subsequently stood down "immediately after the complaint had been received". Mr Gatzounas was given an opportunity to respond to the allegations and "denied any wrongdoing".
5. Ms Callaghan considered Mr Gatzounas' conduct was in breach of the respondent's Code of Practice - Workplace Behaviour and Standard as it demonstrated a pattern of aggressive and inappropriate behaviour contrary to the requirements of the relevant contract carrier agreement.
6. Following a review of the evidence and options available to the respondent, Ms Callaghan determined that given Mr Gatzounas' previous final warning and his denial of the allegations, the contract should be terminated.
7. In cross-examination, Ms Callaghan stated the Reece Plumbing video evidence was taken by the complainant after the alleged incident and "did not show Mr Gatzounas not really responding, to be honest … But I would say that Mr Gatzounas didn't engage"
8. In relation to the April 2015 Sydney University incident, Ms Callaghan stated the "incident got discussed, but it was obviously not a factor, because Mr Gatzounas was already on a first and final for similar, abusive behaviour." She further elaborated: the central finding said the person is on a first and final, which was given in less than a year, and then a similar incident happens, which based on the evidence in front of us, on all balance of probabilities, I probably sided with the complainant's evidence over Mr Gatzounas', because of the level, (of) effort he had gone to, to publish his proceedings, he seemed to be very insistent about what happened.
9. Ms Callaghan stated "the crux of the decision" was dismissal based on the complainant's evidence and the fact that Mr Gatzounas was on a first and final warning for the similar behaviour.
10. In relation to the Toll Group's Workplace Behaviour Standard and Code of Practice policies, Ms Callaghan stated that she had no evidence to show that Mr Gatzounas had received a copy of the Standard and, whilst there was a verbal conversation concerning the Code of Conduct following the April 2015 incident, there was no specific record to support the proposition that he had received training concerning that particular policy.

Union

1. I have considered the Union's written and oral submissions in support of Mr Gatzounas' case. Shortly stated, the Union considered the termination of Mr Gatzounas' contract carrier's agreement harsh, unjust and unreasonable. Mr Gatzounas was not afforded a proper opportunity to respond. The termination was also harsh given Mr Gatzounas' personal and economic circumstances.
2. Mr Gatzounas had not received training concerning the respondent's policies and procedures relied upon to terminate his contract.
3. In relation to the 10 July 2015 Reece Plumbing incident, Mr Gatzounas contended he did not turn into Wentworth Park Road prior to the delivery of a parcel to Reece Plumbing. Rather, the route driven that day first included a delivery to the Colostomy Association on Bridge Road, Stanmore prior to the Reece Plumbing delivery. In support of that proposition, Mr Gatzounas further contended that his next delivery that day to Glebe Dental did not involve him driving on or near Wentworth Park Road. Accordingly, the Union's view was that Mr Gatzounas had been incorrectly identified by the complainant as the driver of the vehicle involved in that particular incident.
4. The mobile phone video footage made available to the Union showed Mr Gatzounas had disengaged himself from the member of the public, wound up his window and driven off.
5. The redacted email correspondence from the fleet supervisor simply makes mention of the fact that the member of the public was almost knocked down by a van and there was a disagreement over where Mr Gatzounas had stopped outside the Reece Plumbing site in Glebe. The email also makes note that a follow up call would be made the following Monday. No evidence or file note of the follow up call, a statement, or any other contact with the complainant was made available to the Union.
6. It is unclear how Ms Callaghan came to be aware that the complainant was on a video call when it is alleged that he was almost knocked down by a van. In any event, the Union submitted that there was simply insufficient evidence to substantiate the claims that Mr Gatzounas was the driver who almost knocked down the complainant on Wentworth Park Road. Moreover, there is no evidence whatsoever to suggest that Mr Gatzounas was rude and abusive to the complainant on 10 July 2015.
7. The Union submitted Mr Gatzounas had not been trained in the respondent's policies and accordingly, could not be terminated for any breach.
8. The respondent sought to rely on previous warnings given to Mr Gatzounas in September 2014 and April 2015 for his alleged conduct towards members of the public. In that regard, the Union contended that the September 2014 verbal warning was never given to Mr Gatzounas nor was it raised in the context of the April 2015 disciplinary meeting or shortly thereafter.
9. Mr Gatzounas was issued with a show cause letter setting out the allegations against him on 22 July 2015 in relation to his alleged conduct on 10 July 2015. At that point in time, he had not been given any evidence to substantiate the claims. It was only after a request was made by Mr Newton that the video of the incident at Reece Plumbing was shown to Mr Gatzounas.
10. Further, the content and nature of the initial complaint from the member of the public was not made available to Mr Gatzounas and was only made available to the Union after Ms Callaghan made passing reference to it on 19 August 2015.
11. In conducting an inquiry into the termination of a contract carrier's agreement, the Union argued that procedural fairness was a significant consideration in determining whether the termination was harsh, unjust or unreasonable, or unfair. The withholding of evidence from Mr Gatzounas characterises the unjust nature of Mr Gatzounas' dismissal.
12. The termination of Mr Gatzounas was harsh and disproportionate to the gravity of the misconduct alleged. Mr Gatzounas had worked for the respondent for some seven and and a half years respectively. It would appear that his work conduct only became an issue for the respondent commencing in September 2014.
13. Mr Gatzounas' personal circumstances were that he was the sole wage earner for his family comprising his wife, three children and elderly mother. He has a large mortgage and vehicle payments of some $300 per week. His current income was significantly less that that earned with the respondent.

Respondent

1. The respondent's submissions were quite short. The decision to terminate the contract on 12 August 2015 was made following a determination that Mr Gatzounas had been rude and abusive towards a member of the public while conducting deliveries for the respondent on 10 July 2015 and he had previously received a first and final warning on 14 September 2014 following a complaint from a customer. The investigation found Mr Gatzounas had been rude and abusive towards the customer.
2. The respondent further submitted: 1. Mr Gatzounas was engaged under a contract carrier's agreement with the respondent, Toll Priority from 2011 until August 2015; 2. Mr Gatzounas' "actions" on 16 September 2016 in being rude and abusive to a member of the public formed a pattern of behaviour that was contrary to the requirements of the Toll Code of Practice - Workplace Behaviour and Standard and in breach of contract carrier agreement; and 3. Mr Gatzounas' conduct caused damage to the reputation of the respondent.
3. Mr Gatzounas was required to comply with the contract carriers agreement. Clause 12 of that Agreement sets out the respondent's "Values": 1. Integrity and trust 2. Safety 3. Continuous improvement 4. Teamwork 5. Being open and transparent
4. Clause 14 of the Agreement required Mr Gatzounas to perform work "faithfully and diligently", "to act in Toll's best interest at all times" and promote "Toll's interests, prosperity and reputation".
5. The respondent also sought to rely upon the September 2014 Newtown incident where Mr Gatzounas had denied that the incident had occurred and was given the benefit of the doubt and the April 2015 Sydney University incident where the complainant alleged that the applicant "nearly reversed into him as he was walking behind the van and then abused the complainant and tried to blame him for the incident".
6. On 23 April 2015, Mr Gatzounas, with his support person, met with management to discuss this particular complaint. Mr Gatzounas denied the incident had occurred and "was given the benefit of the doubt".
7. On 6 August 2015, management met to discuss the Reece Plumbing incident complaint, Mr Gatzounas' response and the investigation outcome. It was subsequently determined that given Mr Gatzounas' previous warning and pattern of behaviour, it was appropriate to terminate his contract.
8. The respondent also contended that Mr Gatzounas' conduct had damaged its reputation and his pattern of "rude, abusive and inappropriate behaviour towards customers and a member of the public was a breach of the contract agreement. It was also conduct inconsistent with the "Values of Toll, the Code of Practice and Standard".
9. Mr Gatzounas was subsequently given a letter of termination on 13 August 2015.
10. The respondent submitted the termination was neither harsh, unreasonable or unjust. There were no procedural fairness deficiencies. Mr Gatzounas was notified of the allegations at a meeting on 13 July 2015 accompanied by a support person and later in writing on 22 July 2015 as part of the respondent's show cause process.
11. The respondent submitted it had lost trust and confidence in Mr Gatzounas. The following grounds and reasons were put forward in support of that proposition: 1. Trust and confidence is central to the employment relationship; 2. Following the termination, members of the Union took unprotected industrial action. The respondent considered that as a result of that particular industrial action "there was no way the employment relationship with the applicant could be repaired. Reinstatement should not be considered". 3. Mr Gatzounas, by his own misconduct and as "soundly and rationally based" in the termination letter, has "irreparably damaged the employee/employer relationship".
12. In terms of remedy, the respondent submitted, "due to the applicant(s) own misconduct, he should not be awarded any compensation in the event that the termination of his contract is held to be harsh, unjust and unreasonable".

Was the dismissal of the respondent harsh, unreasonable or unjust?

Relevant principles

1. As stated above, the decision in Cherry v Allied Express Transport supports the proposition that when considering an application under s 314 of the Act, the Commission should consider the various factors set out under s 88 as are relevant to the termination of a contract determination.
2. Part 6 of Chapter 2 of the Act requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. The exercise of the Commission's powers in relation to an unfair dismissal requires a determination as to whether a particular dismissal was harsh, unreasonable or unjust. Section 88 of the Act relevantly provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.

Was the dismissal of the respondent unreasonable or unjust?

1. It is convenient to first deal with some general legal principles related to breach of an employer's policy as a basis for termination of employment. Such principles are of course directly relevant to the termination of a contract of employment.
2. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employees may be subject to contractual obligations that require them to conduct themselves in the workplace in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer's compliance with its obligations and duties. In a commercial sense, such obligations may also relate to matters such as the requirement to preserve customer relations and reputation.
3. Once given a policy and I would argue, trained so as to ensure the employee understands the application and intent of the relevant policy and any penalty for non-compliance, there is an obligation on the employee to observe the policy at all times. Employees need to be squarely on notice that non-compliance may lead to dismissal as was the case here.
4. The rigid requirement to observe a policy may be an express term of the contract. In that regard, I note that Clause 12 of the contract determination deals with "Toll Values". However, there is no reference to the respondent's policies relied upon to terminate Mr Gatzounas' contract.
5. In the absence of any express term, it would appear that the respondent seeks to rely on the implied term to obey lawful directions of the employer, in this case, compliance to various policies to justify the decision to terminate: Adami v Maison de Luxe Ltd (1924) 35 CLR 143. In circumstances where a breach of the employer's policy involves a breach of the implied term requiring an employee to obey a lawful direction to comply with a particular policy sufficient to justify dismissal at common law, the resultant termination of employment is more likely than not, to be sound and defensible.
6. Notwithstanding that an employer's decision to terminate for breach of a policy may be soundly based, the dismissal may nevertheless be unjust and unreasonable in circumstances where it is established: 1. the employee expresses ignorance of the policy, has not been given or been trained in the purpose and obligations arising from that policy; and 2. the decision to terminate may be a disproportionate response to the breach having regard to the circumstances or controversy surrounding the breach, the employee's length of service and prior employment record. The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it.
7. In circumstances where a dismissal is based on misconduct, the Commission must determine whether the conduct relied upon by the employer actually occurred and what was involved. That question can only be determined on the evidence before the Commission applied against the civil standard of proof, that is, "the balance of probabilities".
8. The reasons justifying dismissal must be objectively valid. It is merely not sufficient for the employer to simply believe it had a valid, sound and defensible reason for the dismissal.
9. The test however, is not whether the employer believed on reasonable grounds following an investigation that the employee was guilty of the conduct which resulted in termination. The Commission must be satisfied the evidence meets the civil standard of proof and must be careful not to rely on indefinite testimony or indirect inferences.
10. It matters not that an employee may have been on a first and final warning immediately prior to his dismissal. What does matter is that the reason for the dismissal must be sound and defensible. In any event, warnings of unsatisfactory conduct are not required in cases concerning dismissal for misconduct: Australian Services Union of New South Wales (on behalf of J Davidson) and Hunter Water Corporation [2004] NSWIRComm 7 at [50].
11. In the event that the conduct as alleged by the employer did occur, the Commission is required to determine whether the dismissal was harsh, unreasonable or unjust, having regard to all the circumstances of the case. In making that determination, the Commission must assess whether there was a fair and reasonable explanation to underpin the dismissal.
12. In circumstances where the Commission finds that the dismissal of an employee was in all the circumstances of the particular case, "harsh, unreasonable or unjust", the Act provides remedy.
13. Procedural fairness entitled Mr Gatzounas to be given an opportunity to respond to the complete suite of allegations of improper conduct prior to the decision being made to dismiss or terminate the contract.
14. Critically, procedural fairness also mandates that prior to being asked to give an explanation regarding an allegation concerning conduct or performance, the contract carrier must first be given sufficiently detailed information about the nature of the allegations and an adequate opportunity to respond.
15. In relation to the July 2015 Reece Plumbing incident, while Mr Gatzounas was afforded the opportunity to have a Union support person present at all times during the investigation and show cause process, he and his Union were adamant that he had not been given all the information concerning the allegations against him. However, I am unable to determine whether there was anything additional that the respondent could have provided him other than better particulars or sworn statements from the complainants.
16. Whether a particular termination can be deemed harsh, unreasonable or unfair can turn on the question of procedural fairness. Industrial tribunals have universally stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to, and including, the employee's dismissal. The decision of the Full Bench in Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd [2003] NSWIRComm 211 at [118] is indicative of those views: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious.
17. Relevantly, the Full Bench in Antonakopoulos v State Bank (1999) 91 IR 385 at 389 and 390 considered the basis upon which procedural issues might be considered in the context of an alleged unfair dismissal: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures, which are unfair, and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust.
18. Mr Gatzounas received a first and final warning in relation to the September 2014 Newtown incident. The principal purpose of issuing a "warning" is to advise the employee that their conduct or work performance is inadequate and in the event they do not raise their level of performance to the required standard, dismissal may follow.
19. Such a warning may articulate the employer's expectations, identify what conduct or performance needs to be remedied. The warning may also identify a specific aspect of the employee's work that requires attention and propose a course of remedial action the employer considers will enable the employee to perform to the required standard.
20. Both the show cause letter setting out the Newtown incident allegations dated 9 September 2014 and the first and final warning dated 17 September 2014 refer to Mr Gatzounas' responsibilities under the relevant Toll Policies, but fail to provide him with copies to assist him prepare his show cause response and, take the necessary steps urged upon him by the first and final warning so as to ensure his compliance into the future. There is no performance management plan to ensure Mr Gatzounas bothers to acquaint himself concerning all aspects of the Toll Code of Practice and Workplace Behaviours policies.
21. The respondent is entitled to expect all contractors to adhere to the standard of behaviour required of them pursuant to its policies. They are not optional, but rather they are mandatory in nature. The quid pro quo to the respondent's rights concerning contractor compliance must be that its contractors have firstly been given the policies and second, have also received training in all aspects concerning those important policies.
22. Clearly, the evidence in this matter supports the proposition that on the balance of probabilities it is reasonable to conclude that Mr Gatzounas neither received a copy of the relevant policies nor was he afforded appropriate training. The evidence of Mr Gatzounas in cross examination was that he had received no formal training whatsoever whilst engaged by the respondent.
23. The unchallenged evidence of Mr Newton was that the respondent did not provide adequate training to contract drivers. Moreover, the Erskineville depot training coordinator position had been vacant since late 2014.
24. The unchallenged evidence of Mr Pirc was that contract drivers had been urging the respondent to develop a formal policy and appropriate training concerning driver protocols dealing with how best to deal with members of the public in difficult situations for some time.
25. In relation to the September 2014 Newtown incident, Mr Gatzounas denied the allegation that he told the customer, "You can stick it up your arse". Rather, his early admission to Mr Boland and Mr Piper was that he had mumbled to himself, "you're the idiot, not me" and he did not consider the customer had heard that comment.
26. The show cause letter of allegations concerning the Newtown incident dated 9 September 2014 stated in part: According to the customer's complaint, she said that during delivery of the parcel, you said to her "you can stick it up your arse". According to information provided by you to Mr Sam Boland the following morning, you said that you may have called the customer an idiot. When you were interviewed by Darryl Piper, you denied making the statement referred to by the customer. Based on information that you may have said what is alleged by the customer, or by you, I am satisfied that, on the balance of probabilities, you did verbally abuse the customer. (emphasis added)
27. It would appear Mr Boland subsequently contended Mr Gatzounas' reference to "may" was an admission that he did actually call the customer an idiot. The word "may" in this context is generally used to describe or express a possibility that something occurred in circumstances where the truth is yet to be determined.
28. The show cause letter dated 9 September 2015 at paragraph 1 states "An investigation is being conducted into the complaint". Notwithstanding that positional statement of the respondent, paragraph 4 states, "on the balance of probabilities, you did verbally abuse the customer".
29. There is simply no evidence whatsoever the respondent formally interviewed the complainant to determine the precise factual basis of the complaint and whether the complainant had embellished her version of events. It must follow that the absence of Mr Boland eliciting further particulars from the complainant, he was not in a position to determine Mr Gatzounas' guilt.
30. Critically, Ms Cvetkovic in cross examination could not recall any specific conversations with the complainant to confirm that she actually heard his mumbled comment. Moreover, she agreed with the proposition that the complainant had never said or alleged that Mr Gatzounas had called her an idiot. There is no evidence that the complainant actually heard the mumbled comment relied upon to underpin the first and final warning.
31. A formal interview with the complainant as part of the investigation may have put beyond doubt the allegations levelled against Mr Gatzounas or, in the alternative, may have determined that the complainant had embellished her complaint.
32. In Franklins Ltd v Webb (1996) 72 IR 257, a case that dealt with summary dismissal for serious misconduct, the Full Bench at [262] observed that employers: ...need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.
33. The Full Bench observation in Franklins Ltd v Webb also confirms the onus upon an employer to ensure that allegations concerning an employee's performance are investigated in a proper and procedurally fair manner.
34. The investigation into the Newtown incident lacks the degree of certainty required to determine Mr Gatzounas' guilt on the balance of probability. It must therefore follow that the respondent cannot rely upon the 9 September 2015 Newtown incident to support the decision to terminate Mr Gatzounas' contract carrier agreement. On the evidence before the Commission, I cannot be satisfied that the respondent's investigation proceeded in a proper and procedurally fair manner.
35. In my view, it was also unfair for the respondent to seek to rely upon the April 2015 Sydney University incident, where it was ultimately decided not to take any action against Mr Gatzounas.
36. In relation to the July 2015 Reece Plumbing incident, Ms Cvekovic agreed in cross examination that it was possible Mr Gatzounas drove down Bridge Road rather than Wentworth Park Road as alleged by the complainant. If that was the case, then it was not Mr Gatzounas' van that caused angst to the complainant when crossing Wentworth Park Road. Nor was it Mr Gatzounas who sounded his horn, shouted at and raised his finger to the complainant.
37. Moreover, a formal interview with the complainant here may have afforded the respondent the evidence it required to justify the decision taken to terminate the contract or determine the complaint frivolous or vexatious.
38. Ms Callaghan also confirmed the respondent held no specific record to show that Mr Gatzounas had been given copies and received training in the workplace policies relied upon to terminate his contract.
39. In the absence of any formal interview with the July 2015 Reece Plumbing incident complainant, Ms Callaghan confirmed in cross examination that the respondent took into consideration the fact that Mr Gatzounas was on "a first and final" and given a similar incident, she "probably sided with the complainant's evidence over Mr Gatzounas', because of the level, (of) effort he had gone to, to publish his proceedings, he seemed very insistent about what happened".
40. In circumstances where the investigation process is flawed and, there is a lack of certainty underpinning the allegations, it is difficult to prove the decision to terminate the contract carrier agreement was both sound and defensible on the balance of probability.
41. It was open to the respondent to subpoena one or more of the complainants to give evidence in support of its case against Mr Gatzounas.
42. In the particular circumstances of this case, I have considered the respondent's evidence against the decided authorities and determined that the termination of Mr Gatzounas' contract was both unreasonable and unjust.

Was the dismissal of the respondent harsh?

1. The Commission is also required to determine whether or not Mr Gatzounas' dismissal was harsh and, whether the ultimate sanction of dismissal was disproportionate to the gravity of the alleged misconduct. The Full Bench decision in Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 is authority for the proposition that it is open to the Commission to determine whether the sanction of dismissal was, in all the circumstances of the case, too severe. At 302-303, the Full Bench stated: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch [1973] AR 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances -even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (Our italics)
2. In Corrective Services NSW v Danwer [2013] NSWIRComm 61, the Full Bench observed at [21]: The Industrial Relations Act 1996 (IR Act) provides for certain remedies where the Commission finds that the dismissal of an employee from employment was "harsh, unreasonable or unjust": see s 89. It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24;(1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. (See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25] - [32]).
3. On the evidence in this matter when viewed against the relevant authorities, it must follow that the termination of Mr Gatzounas' contract was harsh and disproportionate to the gravity of the alleged misconduct. If there was any concern about his behaviour, it might have been appropriate to counsel Mr Gatzounas, consider a performance management plan or bring all drivers in for some training. The fact that he was on a final warning does not displace the obligation to have a sound, defensible and valid reason for termination.
4. I have considered each limb of the tripartite test. Having considered all the material put by the parties in these proceedings, I have determined that it was harsh, unjust and unreasonable to terminate Mr Gatzounas' contract. Mr Gatzounas' dismissal as a contract carrier was disproportionate to the gravity of the alleged misconduct. For the reasons set out above, the evidence relied upon by the respondent was insufficient to ground the decision to terminate Mr Gatzounas' contract carrier agreement.
5. The evidence in this matter also suggests the respondent did not give any real consideration to the mitigating factors concerning Mr Gatzounas' potential difficulty in obtaining alternative employment, his family and carer responsibilities and financial circumstances.

Remedy

1. The position of the respondent in arbitration was that in the event the Commission determined that the dismissal of Mr Gatzounas was harsh, unreasonable or unjust, no compensation was warranted. It further argued that reinstatement was inappropriate on the grounds that Mr Gatzounas had "irreparably damaged the employee/employer relationship" and his conduct had caused reputational damage. There is no substantive evidence to support the proposition that the Newtown and Reece Plumbing incidents caused the respondent reputational damage.
2. In determining the appropriateness of reinstatement, the Commission is required to determine whether sufficient trust exists to make the employment relationship viable and productive once more. It logically follows that the Commission is required to assess whether the respondent's contention that trust and confidence has been destroyed is soundly and rationally based and sufficient to make the restoration of the employment relationship inappropriate.
3. The respondent is a large and highly reputable employer involved in transport logistics.
4. It is trite law that reinstatement is the primary remedy and it is only in circumstances where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94]. Reinstatement being the primary remedy was reinforced by the Full Bench in Plummer v Stannard Bros Launch Service [2005] NSWIRComm 301 at [115]: Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211;(2003) 128 IR 37 at [125]. Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453.
5. Where a loss of trust and confidence is pressed, it is plainly not sufficient for an employer to simply assert the allegations that lead to the dismissal support the proposition that there has been a loss of trust and confidence. A proper case needs to be made out. There is little substance to the respondent's case against reinstatement.
6. I am mindful of the decision of the Full Bench in Perkins v Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 at [191]: …trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause. . . The implication is not confined to employers; it extends to employees: see for example Blyth Chemicals Limited v. Bushnell [1933] HCA 8; (1933) 49 CLR 66 at pp.81 and 82 and North v Television Corporation Limited (1976) 11 ALR 599 at p.609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based…
7. I also draw upon the observations of Cahill J in New South Wales Public Service Professional Officers Association v. Forestry Commission of New South Wales (1990) 39 IR 46 at 50: ... industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the manner of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship ...
8. Mr Gatzounas commenced working for the respondent in July 2011. Immediately prior to that employment, he worked for a company that was a subcontractor to the respondent. On the material before the Commission, there were no issues with his work performance prior to the Newtown incident. The relevant show cause responses prepared by Mr Gatzounas exhibit a degree of contrition and contain a positive statement that he did not wish to involve himself in any conduct that could cause the respondent embarrassment or reputational damage.
9. On the evidence in this matter, it would appear that the relationship between a contract driver and the respondent is considerably more remote than most employment situations. The contract driver is allocated particular work and performs that work away from the respondent's work depot. He does not fall under direct supervision in the general sense.
10. Given my finding that the termination of Mr Gatzounas' contract carrier agreement was harsh, unreasonable and unjust, I have determined on the material before the Commission that the employer/contractor relationship is capable of restoration. Accordingly, I find that reinstatement is appropriate given all the circumstances of this particular case.

Orders

1. The orders that I make in relation to this matter are these: 1. The Commission orders the respondent, Toll Transport Pty Ltd trading as Toll Priority reinstate Mr Con Gatzounas' contract carrier agreement with full continuity of service on terms not less favourable to him than those that would have been applicable if the contract had not been terminated, within 21 days of today's date. 2. The Commission orders that the respondent shall pay to the applicant, Mr Con Gatzounas, the amount of earnings he would have otherwise received had his contract carrier agreement not been terminated, less any other earnings received during the period from the termination to reinstatement. The amounts so ordered shall be payable within 28 days of today's date. 3. Any disagreement as to the calculation of the earnings in these orders shall be referred to the Commission for final determination. Liberty to apply is available in those circumstances. J D Stanton Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2017