Toll's drivers (including owner drivers) are allocated work, from time to time, by Toll's Fleet Controllers. The Fleet Controllers coordinate pickups and deliveries, which are logged through a computer framework known as TollWorks. A Fleet Controller's primary responsibility is to make sure that the freight is picked-up and/or delivered.

When allocating work to particular drivers, Fleet Controllers take into account any known limitations of the driver or the vehicle. Driver limitations exist, for example, where the driver is not licensed to carry dangerous goods or where the driver suffers from a physical impairment, such as a back injury that prevents them from lifting heavy objects. Vehicle limitations include, for example, the load capacity of the vehicle or whether the vehicle is licensed to carry dangerous goods.

1. In about May 2006, the respondent discovered discrepancies in the applicant's run sheets. This gave the respondent ground for suspicion that the applicant was not filling in the run sheets correctly which, in turn, could possibly mean that the applicant was getting remuneration to which he was not entitled. The information that should be contained in the run sheet is referred to in paragraph 11 of Mr Read's statement, which states :

Toll owner drivers are required to fill out a daily run sheet, or run sheets, which details the work performed by the owner driver on any given day. Owner drivers are required to complete various information on their run sheets including :

(a) the location of pick up, or delivery of freight;

(b) the owner driver's arrival and departure time;

(c) the transport contract number for the freight;

(d) the number of pallets picked up or delivered; and (importantly for this case)

(e) any fatigue breaks, including the mandatory fatigue breaks, taken by the owner driver.

1. As a result of obvious discrepancies in the applicant's run sheets, surveillance was ordered.
2. Mr Borg at paragraph 15 of his statement states why the surveillance was ordered. He states :

In May 2006, Michael Curran (another employee of the respondent whose witness statement was tendered) approached me and stated that he had noticed that the start and finish times in the Complainant's run sheets did not change over time and that he considered this was unusual in that the Complainant's work hours had not changed despite the fact that Toll's work volume had decreased in the month of May.

It then goes on to state that Mr Curran approved of the surveillance and at paragraph 16 states that :

Toll has previously and continues to conduct surveillance on individuals from time to time when reasonable concerns exist about their performance or behaviour.

1. As a result of the suspicion, surveillance was arranged, as previously stated, by TISS Australia. As a result of the surveillance, it became very clear that there were enormous discrepancies in the places that the applicant and his truck were at a particular time and what he had written on the run sheet. In fact, the only correct part of the run sheet was when the applicant was at the respondent's depot.
2. At paragraphs 45 and 46, Mr Borg describes the discrepancies in the run sheets as compared with the surveillance. He there states :

The discrepancies in the Complainant's run sheets can be summarised in general terms as follows :

• The Complainant recording on his run sheets that he started work at 6.00 am when he actually commenced work at 7.00 am each day.
• Fatigue breaks were noted on his run sheets but the Complainant was stationary for longer period than what was recorded on his run sheets.
• Pickup times recorded on the Complainant's run sheets did not line up with actual times he was at the client's site;
• Pickups recorded on the Complainant's run sheets were false in that the Complainant did not attend the client site on that day
• The Complainant sitting idle for long periods of time during the day.

The above discrepancies have nothing to do with whether the Complainant actually completed the jobs, the time taken to complete runs, or whether he was waiting for work. The run sheets were inaccurate in terms of what actually took place.

... the taking of extra fatigue breaks was not recorded on the Complainant's run sheets. The Complainant's claim of taking additional fatigue breaks does not explain why the times recorded on his run sheets do not line up and importantly, it does not explain why he consistently left home late at 7:00 am instead of 6:00 am as recorded on his run sheets.

1. The applicant stated the reasons for discrepancies in the run sheets and I will try and summarize those reasons. He said that -
   • he was not paying enough attention to the time
   • he sat in the truck for long periods either because he was fatigued or he was waiting for a job to be allotted to him by the controller through the MDT (mobile data terminal)
   • he said failing to record fatigue breaks in the run sheet was because there was not enough space on the run sheets. However, in relation to that requirement, I think it was quite unlikely because there was always space on the run sheet where it could have been done above the space of the fatigue times or he could have started another sheet
   • he also states that in 2002, the respondent said it would show leniency to the applicant because of the chronic fatigue syndrome from the Q-Fever.
2. I find the applicant's explanations difficult to accept and I think Mr Piripitsi who gave evidence for the applicant put the matter at its highest when he said that the respondent said that the run sheets must be presentable. By being presentable, Mr Piripitsi was attempting to show that they could just be filled in the best way possible. But I do not interpret the respondent's instructions in that way. I think it would be incredible for the respondent to say that they did not want accuracy in the run sheets considering that they were to do with pickup of goods and also to do with the payment of the driver. It is very important to know exactly where the driver has been during the day and when the driver was at those places. Also, a very important matter to both the respondent and the applicant is the pay that was received for work.
3. At paragraph 25 of the applicant's statement, he summarises the reasons for him being stationary at times. He there states :

My vehicle was stationary from time to time due to any of the following reasons :

• awaiting a call from the fleet manager for the next job;
• waiting for scheduled pick ups/drops;
• completing necessary paperwork and/or communicating with the depot; and
• taking a necessary fatigue break.

1. The importance of the run sheets and the effect that the discrepancies can have on the way of operation are described in paragraph 19 of Mr Borg's statement. He there states :

Discrepancies on drivers' run sheets can affect the amount that they are paid by Toll. For example :

(a) The Complainant stated on his run sheets that he worked 10 hours on 29 May 2006, 11 hours on 31 May 2006 and 11 hours on 2 June 2006. Assuming that he stated on his run sheets that he worked 11 hours on both 30 May 2006 and 1 June 2006, his run sheets would show that he worked 54 hours that week and Toll would have paid the Complainant $2,736.66 for that week.

(b) According to the TISS Australia report, the Complainant overstated the hours worked by 3.42 hours, 3.56 hours and 2.59 hours on the days he was under surveillance. Assuming that he overstated the hours worked on his run sheets by an average of 3.5 hours on both 30 May 2006 and 1 June 2006, the amount payable by Toll based on the actual hours worked by the Complainant would have been $1,901.37.

(c) The amount overpaid by Toll for that week would be $835.29. Assuming that this discrepancy is consistent over the period of 52 weeks the amount of overpayment over the course of one year would be approximately $43,435.08.

Thus, it is important for these run sheets to be extremely accurate.

1. I found the applicant to be a very unsatisfactory witness. Even though he had been filling in the run sheets for 36 years (ie the time he has been an owner/driver), he did not seem to know the purpose for recording the location and time. I find that quite incredible and I do not accept it.
2. The applicant said he wrote 6:00 am as the start on his run sheet because he needed time to check his truck and was told by the respondent to write 6:00 am. In relation to the time to check his truck, he said that he took one hour. I have seen the work that is needed to check the truck and, on the evidence that has been given by Mr Italiano, Mr Read and Mr Borg, I cannot accept that it would take that long. I accept the evidence of the respondent's witnesses that at most it would take 20 minutes and possibly even shorter. I cannot accept the fact that any one in the respondent's organisation would have told the applicant to write 6:00 am as his start time when in fact he only started at 7:00 am. It would seem too ridiculous to be true that the respondent would wish to pay the applicant for an extra hour's work, each day, that he was not doing. I just cannot understand it and I do not believe that there was any sufficient evidence to prove such a matter and it is so unlikely that I do not accept it.
3. I also mention in relation to the time that it took to check the truck the fact that Mr Mihelcic said before me it took him the hour but that was never mentioned in any of the three meetings he had just before and subsequent to his dismissal with the respondent. Further, the applicant stated that he was required to check 100 wheel nuts on his truck. However, when pressed in cross-examination, he admitted his truck had only 60 wheel nuts.
4. The applicant also said that he spent time parked on the side of the road to receive jobs and do paperwork. He said that it takes approximately one hour per day to write down the jobs he has received. I find that very difficult to accept also. Mr Read gave evidence that the time taken is three quarters of an hour at the most but probably only half an hour and looking at the paperwork, I would have thought that is a very generous estimate indeed.
5. It was also said by the applicant that his MDT would not work in all locations and therefore he had to drive around to try and find locations where he could contact the fleet controller so as to receive jobs and give the necessary information to that fleet controller. On the three days of surveillance, there was no video shown to me which looked like the applicant was driving looking to find wireless reception. However, I accept the fact that I was not shown the whole video of the three days of the applicant driving around. I do accept the fact that the respondent has made tests of this machinery by way of a two-way radio which has the same frequency and uses the same system as the MDT and in the area covered by the applicant, there was no black spots. The applicant said it may have changed over two years. However, Mr Read gave evidence that it had not changed and it would be the same as when he did the tests a short while ago. Thus, I do not accept the applicant's explanation as to why he did not ring in to get jobs.
6. I think it was telling that perhaps the only place that the applicant was able to substantiate his run sheet with the surveillance was at the depot. One can imagine the reason why that would be because the applicant knew it was relatively easy for the respondent to check the depot and it was important that he wrote the correct times when he entered the depot and when he left the depot.
7. The applicant also said that a lot of the problem was the fatigue breaks. If it was fatigue breaks, then it should have been written on the run sheets and, as I have previously said, I do not accept the applicant's explanation that there was insufficient room on the run sheets. The run sheets did only allow provide lines for three fatigue breaks but there was evidence given he could have used another run sheet and, as I said, looking at the run sheet, there was ample unused space where it could have been written.
8. The applicant's credit to my mind was also very badly damaged. In a witness statement which was filed shortly before the hearing, at paragraph 6 the applicant stated as follows :

On each of the days that surveillance was conducted, namely 29 May 2006, 31 May 2006 and 2 June 2006, I went to my first pick up but was called on my mobile phone by the dispatch forklift driver not to come in as the company was having problems with its computers. I recorded the pickup as no freight and notified the fleet controller and told him of the situation.

1. In the witness box under vigorous cross-examination from Mr Sneden, the respondent's counsel, the applicant finally admitted that he was not informed by the dispatch forklift driver on 31 May or 2 June 2006 not to come in. When I asked him why he made those statements, he said that it was unexplainable.
2. When one compares the applicant's evidence to the evidence of the respondent's witnesses, I take the view that I should accept the evidence of the respondent's witnesses where there is a discrepancy between the two. The respondent's witnesses all gave their evidence without hesitation with full knowledge of the facts and indeed conceded matters when it was appropriate. On the other hand the applicant, as I have said, had a number of discrepancies in his evidence and appeared to be attempting to tailor his evidence to what best suited his case.
3. As I have said, the applicant's case is that the respondent did not have good reason to order surveillance and it ordered surveillance because of his disabilities. I do not accept that the respondent ordered surveillance because of the applicant's disabilities. In my view, it is perfectly clear that the discrepancies on the applicant's run sheets prior to the surveillance were sufficient to put any employer on notice that there was something very strange about the matter.
4. Mr Piripitsi, the applicant's witness, said that these matters should have been brought to him as the owner/driver's advocate and representative prior to the surveillance. I believe that would have been ridiculous. If such matter was told to Mr Piripitsi prior to the surveillance taking place, he would have undoubtedly informed the applicant of the surveillance and he would have acted quite differently to what would be his usual conduct. I think it is fanciful to suggest that any worldly person would inform the person they had under surveillance that surveillance was taking place. They clearly would not get what they expected.
5. I also accept that once having received the surveillance which showed the major discrepancies which did exist between the surveillance sheet and the video on the one hand, and the run sheet of the applicant on the other, there was good reason for any employer to dismiss the applicant.
6. In the hearing of the case, I did not hear any evidence whatsoever which would link the respondent to the suggestion that they wanted to dismiss the applicant because of his problems in relation to any impairment he may have. All the evidence tended one way and that was that both the surveillance and the dismissal took place because of the discrepancies on the run sheet. I find that the applicant's impairment did not play any part whatsoever in the respondent's decision to either conduct the surveillance or dismiss the applicant.
7. I should make a final mention that Mr Sneden was concerned that the pleadings may mention some indirect discrimination in the form that it may be adduced from the pleadings that someone with the disabilities and impairments that the applicant has may not have been able to fill the run sheets in correctly. However, it is clear from the evidence that was given both by Mr Piripitsi and the applicant himself that neither Q-Fever or the applicant's other impairments would have prevented him from filling in the run sheet correctly. I also emphasize that this is not an industrial case about whether the dismissal was justified or not. The only question that I have had to decide is whether there was any discrimination by the respondent coming to its decision to put the applicant under surveillance and then to dismiss him. I find that there was no discrimination whatsoever in that regard. As I have said already, the decisions were entirely based on the discrepancies which appeared in the run sheets. Under those circumstances, I will dismiss the application.

1. Subsequent to making the decision which I have already made whereby the applicant's claim was dismissed, Mr Sneden on behalf of the respondent has made an application for costs. Claims that are brought under the Equal Opportunity Act, like other claims in this Tribunal, are subject to s 109 of the Victorian Civil and Administrative Tribunal Act 1998 unless there is specific legislation which exempts them. I know from the Transport Accident Act and the Retail Tenancies Act that there is legislation which exempts s 109, however no such legislation exists in relation to the Equal Opportunity Act. The structure of s 109(1) is that each party should bear their own costs. However, sub-section (2) gives the Tribunal the power to make an award of costs and sub-section (3) provides that the Tribunal may make an award of costs if it is fair to do so having regard to certain factors, and it is sub-section 3(c) which Mr Sneden relies on. Sub-section 3(c) reads as follows :

(3) The Tribunal may make an order under sub-section (2) only if it is satisfied it is fair to do so having regard to

(c) the relative strengths of the claim made by each of the parties including whether a party has made a claim that has no tenable basis in fact or law.

1. Mr Sneden referred to the fact that I have made findings on the facts that were put before me that the applicant would not have succeeded and indeed I did find that there was no evidence whatsoever to link the respondent with the alleged discrimination. Thus, I can come to the conclusion here that there is no tenable basis in fact or law for the applicant's claim. Having come to that conclusion, in my view, I take into account that the respondent has been forced to engage solicitors and have counsel here that has obviously taken a considerable amount of time to prepare this case and to prepare the statements, including the witness statements. They had several of their employees here for the three days of the hearing. They have been put to great expense and inconvenience by this application being made and I take this into account. Having taken that into account, I conclude that it would be fair to award costs in these circumstances bearing in mind that the applicant's case had no tenable basis in fact or law.
2. The applicant says that he is a man of modest means, in fact he has no means whatsoever, apparently he is on sickness benefits and new start benefits and says that he owes $20,000 on a credit card. I have no idea what his assets are. I know that he has told me during the course of his evidence that he still owns the truck. I do not know what the value of that is. However, I do not believe it is appropriate in a case such as this for me to look at a party's financial position. I think, looking whether it is fair to award costs, I have got to look within the parameters of the case itself and looking within the parameters of this case, in my view, it is fair to make an award of costs.
3. Mr Sneden has asked that that award be on County Court Scale D. He did refer me to a case I decided Williams v Monash University [2005] VCAT 958. There, I looked at the fact that this is a remedial type legislation and awarded costs on Scale B. However, I noted that was a case concerning examination marks. This is a case that if the applicant had been successful, he could have possibly been asking for a figure of around $100,000, on the way he based his claim. He was asking, inter alia, for two years wages or two years reimbursement. Under those circumstances, while the actual scale of the County Court does not necessarily have to be applied rigidly in this Tribunal, it is a guide, and I think Scale D is appropriate and I will make an order accordingly.