K-Dan Pty Ltd v Downer EDI Works Pty Limited [2009] NSWIRComm 1020
Cherry v Allied Express Transport 73 IR 305
Transport Workers' Union of New South Wales (o/b of TWS NSW Pty Ltd and Ready Transport) and Smartskip (NSW) Pty Ltd [2008] NSWIRComm 55
Transport Workers Union of NSW o/b Kojic v Toll Transport Pty Limited t/a Toll Priority [2015] NSWIRComm 1006 [at 6]
Source
Original judgment source is linked above.
Catchwords
K-Dan Pty Ltd v Downer EDI Works Pty Limited [2009] NSWIRComm 1020Cherry v Allied Express Transport 73 IR 305Transport Workers' Union of New South Wales (o/b of TWS NSW Pty Ltd and Ready Transport) and Smartskip (NSW) Pty Ltd [2008] NSWIRComm 55Transport Workers Union of NSW o/b Kojic v Toll Transport Pty Limited t/a Toll Priority [2015] NSWIRComm 1006 [at 6]Transport Workers' Union of New South Wales (o/b Sidhu Freight Pty Ltd v Toll Transport Pty Ltd trading as Toll Contract Logistics [2015] NSWIRComm 36
Transport Workers' Union of New South Wales (o/b Darren Roger Bargwanna) v Robar Enterprises Pty Ltd [2013] NSWIRComm 84
Jalea v Sunstate Airlines (Queensland) Pty Ltd t/a Qantas Link [2012] FWA 1360
Matthew Malouney v ACM Group Ltd [2012] FWA 9386
Young v Janart Holdings Pty Ltd [2014] FWC 8410
Judgment (18 paragraphs)
[1]
Background
Mr Richard Hendrie was engaged by Boral Resources (NSW) Pty Ltd (the Respondent) from around 1995 as a Lorry Owner Driver (an LOD) in the South Coast.
In late 2012, as the work on the South Coast dried up, he acceded to a request from the Respondent that he works for Boral in the Sydney metropolitan area. In December 2012, he moved to Mascot where the Respondent paid for his accommodation for several months.
In July 2013, when the Respondent stopped paying for his accommodation, Mr Hendrie moved in with Mr Ogden in Gymea. Mr Ogden was a Boral employee who subsequently also became an LOD. Mr Hendrie paid Mr Ogden rent fortnightly and in advance calculated at $250 a week. He provided food for the house and cooked for both of them. When his wife visited on weekends, she assisted with the cleaning. Mr Hendrie was not required to pay for gas or electricity. There was no written lease arrangement between both men. Mr Hendrie moved out in February 2015.
In 2013, the Respondent required Mr Hendrie to purchase a prime mover for the Sydney work if he wanted a contract with the firm as a Contract Carrier. He bought a 2013 8-wheeler Freightliner and set himself up as sole director of MRA Transport Pty Ltd (the Contract Carrier). Boral mounted its transit mixer (also variously called barrel or agitator or mixer) on the back of the prime mover for the purpose of carting concrete.
The Contract Carrier and Boral Resources (NSW) Pty Ltd (the Respondent) were parties to a contract dated 2 August 2014 (the Head Contract) which incorporated the Boral Resources (NSW) Pty Limited Sydney Metropolitan Contract Determination (the Contract Determination). Mr Hendrie was also the nominated driver for the purposes of the Head Contract.
Mr Hendrie alleged that he suffered bullying and harassment from another co-worker, Mr Brett Hughes, who was also a friend of Mr Ogden.
On Saturday, 22 August 2015, a sticker which read "YOUR ACCOUNT IS OVERDUE" was allegedly placed against Mr Hendrie's name on the allocation sheet on the board. Mr Hendrie considered it to be a thinly veiled reference to Mr Ogden's on-going antagonism about bills.
Later on the same day, an altercation occurred between Mr Hendrie and one of the Respondent's employed drivers, Mr Rod Eastwood. The altercation became physical. Both drivers were suspended pending an investigation into the incident.
The Respondent determined that Mr Hendrie had breached two of its policies thereby entitling it to summarily terminate his contract on 16 September 2015. MRA had ten years left to run on its contract with the Respondent.
Mr Eastwood's employment also ceased following the incident. He resigned in finalisation of a related disciplinary process with respect to him.
The Transport Workers' Union of New South Wales (the TWU), on 28 September 2015, lodged an application on behalf of its member, Richard Hendrie, operating as MRA Transport Pty Ltd (MRA), seeking a determination of reinstatement of a contract of carriage or, alternatively an order for compensation pursuant to section 314 (4) of the Industrial Relations Act 1996 (the Act) against the Respondent. The relief sought was expressed as follows:
That the contract of carriage which existed between Richard Hendrie, operating as MRA Transport Pty Ltd, on the one hand and Boral Resources (NSW) Pty Ltd on the other hand be reinstated along with compensation for loss of income between the date of termination and the date of reinstatement calculated at $3262.05 per week.
The TWU volunteered an alternative remedy as follows:
That Boral Resources (NSW) Pty Ltd pay MRA Transport Pty Ltd $84,813.25 representing 26 weeks' compensation.
All reasonable steps to effect a conciliated settlement failed in proceedings held on 7 December 2015 before Newall C and directions were issued. Newall C did not identify any special circumstances within the meaning of s 315 (2)(b). The matter was listed for hearing on 5 and 6 April 2016 at which time Mr Luke Maroney entered an appearance on behalf of the TWU and called evidence from:
Mr Richard Hendrie Contract Carrier
Mr Geoff McDonnell Operations Manager-Concrete (Metropolitan)
[2]
Mr Luis Izzo, Solicitor, entered an appearance on behalf of the Respondent and called evidence from:
Mr Mark Pizzol Production Manager
Ms Judaline Hartnett Agitator Truck Driver
[3]
The issues to be decided are:
1. Whether or not the Contract Carrier was the initiator of, and aggressor in, a physical brawl with an employee of the Respondent?
2. Whether in all the circumstances the termination of the contract of carriage was unfair.
[4]
Client Complaints against Mr Hendrie
Incident 1
Mr Hendrie contended that the traffic controller on a client's site had asked him to reverse over a median strip into the car park which resulted in his mudflaps being ripped off.
As he was leaving the site, Mr Hendrie noticed the same traffic controller sitting under a tree on the footpath using his mobile telephone. He did not stop the traffic to allow Mr Hendrie to exit the building site causing the latter to call out to him to "get off the phone and do your job". The traffic controller did just that but he did not look pleased. As Mr Hendrie was leaving the site, he said he accidentally clipped a traffic controller's sign which was laying half on the footpath and half on the road.
Mr Hendrie insisted that he had not swerved at the traffic controller. He accepted that he did not challenge that client's ban on his attendance at their site. The ban was lifted after about a week because there was no evidence of him doing what he had been accused of.
Mr Pizzol did not issue Mr Hendrie with a warning letter regarding that ban which, he recalled was for 2 or 3 weeks, but definitely more than a week.
Incident 2
Mr Hendrie recalled that as a labourer was directing him into the Ceerose site (because there was no trained traffic controller in attendance), he guided him to where there was some steel protruding from the ground and that caused damage to his truck. Mr Hendrie asked if the labourer was going to pay for the damage to his truck which was inspected by the Site Manager. The protruding steel was covered by witch's hats as a result.
Mr Hendrie stated that he had been upset but not abusive. He had reported the incident to Mr Pizzol when he returned to the yard. The next day he had shown Mr Pizzol the footage he obtained from his dash camera and provided him with a copy on a USB. He recalled that Mr Pizzol had agreed that he was not at fault and stated that he would approach the Site Manager to determine what could be done about the damage to his truck. To date, he has not received a response. He pointed out that he had not received a warning either in relation to that incident.
Incident 1: Mr Pizzol did not issue a letter of warning to Mr Hendrie about an incident with a Mr Barber.
Mr Pizzol agreed that none of the above 3 incidents featured in the respondent's consideration of whether or not Mr Hendrie should be terminated.
[5]
The 26 & 27 November 2013 Incident
Mr Hendrie contended that Mr Brett Hughes, another LOD, came out of his vehicle on 26 November 2013 and called him names, including "fat pig", "dumb cunt" and "dumb old bastard" when he, Mr Hughes backed onto a pump at the Boral Hurstville site as he watched a Pump Operator instead of watching Mr Hendrie guide him. Similar insults were targeted at him by Mr Hughes when Mr Hendrie, on 27 November 2013, sought an apology from him for the name calling the previous day, "58 year old has-been", "dumb old cunt", a "fat pig", "a disgrace", "a slob" and so on. He said Mr Hughes followed him into the crib room and kept on abusing him in the presence of other workers and also abused the driver who sat next to him prior to storming out.
Mr Hendrie stated that he was aware that the Respondent was dealing with several harassment complaints at that time in which he was not involved. He agreed that he had not formally reported that Mr Ogden and Mr Hughes had called him a "58-year old has-been" a number of times in 2013. He did not make any further complaints because nothing happened when he lodged the initial complaint on 26 November. He did "mention" it to Mr Mark Pizzol, the Yard Manager. He conceded that the behaviour ceased after he reported it. However, it was replaced by innuendo, pig sounds, hand gestures, calling out and so on at least 3-4 times a week.
Mr Pizzol gave evidence that he had neither heard nor received complaints about Mr Hendrie been called "a 58-year old has-been" over the two-way radio.
[6]
The 11 December 2013 Incident
On 11 December 2013, both Mr Hughes and Mr Hendrie were on a job in Zetland. They had backed their trucks onto pumps next to one another. When Mr Hendrie finished unloading his load, in accordance with standard practice, he hosed down the back of his truck in order to avoid the concrete going hard while he was driving.
Mr Hendrie stated that, as he was hosing his truck, he accidentally got fresh water on Mr Hughes, "a couple of drops… just a little bit overspray". Mr Hughes completely lost his temper, grabbed his hose, walked around the truck and drenched him with water. Mr Hendrie said he retaliated by hosing him back. Mr Hendrie said Mr Hughes "went berserk", threw his hose on the ground and screamed names at him just inches from his face prior to spitting in his face. He had not responded verbally to Mr Hughes.
He argued that if the water Mr Hughes spat out was the water that landed on his mouth, he saved it until he came from his side of the truck, past Mr Hendrie's side of the truck and then up to his face before he decided to spit it out!
When he returned to the yard, Mr Hendrie verbally reported the incident to Mr Pizzol who asked him for formal written notification of the incident in order to follow it up. Mr Hendrie said he declined to formalise his complaint on the basis that "he has got a young wife and kid. I don't want him to get sacked, but it's getting to a point now."
Mr Hendrie stated that Mr Pizzol advised him later that he had spoken to Mr Hughes who admitted to his behaviour during the November and December 2013 incidents.
Mr Hendrie stated that every time he saw Mark Pizzol he repeated that Mr Hughes was still harassing him but he was trying to be "the bigger guy" in the hope that Mr Hughes will wear himself out and leave him alone. He agreed that he made it clear that he did not want anything done about it because "… I'm not the type of person that wants someone to lose their job over something like that … because of his young family…".
Mr Pizzol stated that Mr Hendrie made a verbal complaint in late 2013 and, as the investigation was continuing, followed it up with a formal written complaint that Mr Hughes had spat in his face. Mr Hughes argued that he spat dirty water out of his mouth. Mr Pizzol said he spoke to both men and told them in no uncertain terms that the activity they had engaged in was unacceptable to Boral and that if they could not work together or speak together in a civil manner, then they were to stay away from each other. It was only two days between receiving the written complaint and meeting with the two men.
[7]
The 24 December 2013 Incident
Mr Hendrie decided to lodge a formal complaint with Mr Pizzol on 30 December 2013 in relation to the behaviour of Mr Hughes in the lunchroom on 24 December 2013 at the Botany plant. He contended that Mr Hughes was making sarcastic comments about older people and fat people leading Mr Hendrie to ask him what was wrong with him. Mr Hughes responded by unleashing another tirade against him "If I ever catch you walking past my place again, I'll break your fucking legs". Apparently Mr Hendrie has to walk past Mr Hughes' house on his way to the bowling club for dinner. Mr Hendrie stated that the abuse and ridicule were made in the presence of other St Peter's plant drivers who were in the crib room at the Botany plant.
Mr Hendrie participated in an investigation conducted by Mr Geoff McDonnell, Operations Manager. He was aware that Mr Hughes had also been interviewed but, to his knowledge, none of the witnesses to the lunchroom incident of 24 December 2013 were interviewed. He was not aware of any action being taken in relation to the incident.
Mr Hendrie stated that he noticed that Mr Hughes did not direct any more verbal abuse towards him after the investigation. However, other, more subtle forms of abuse were implemented - such as the two finger salute, showing him the middle finger and innuendo - on a daily basis.
Mr Hendrie stated that every time Mr Pizzol asked him how things were going between himself and Mr Hughes he would reply that "he's the same as he was". Mr Hendrie said he also reported the abuse to the TWU delegate.
Mr McDonnell confirmed that he received the first complaint from Mr Hendrie on 25 December 2015. There was the annual Christmas shutdown and he was going on leave. He noted that it was an urgent matter and met with Mr Pizzol as soon as he could in early January (7th or 9th) and then met with Mr Hughes on 30 January 2016 as soon as possible on his return from leave to put the allegations to him. As a result of his investigations, and based on his own admissions, a first and final warning was issued to Mr Hughes.
[8]
The Ogden Issue
Mr Hendrie moved out of Kyle Ogden's townhouse in late February 2015 when his wife relocated from the South Coat to live with him. He recalled that both he and his wife had separately asked Mr Ogden if he was owed anything and he had confirmed that they did not. Mr Ogden was a friend of Mr Hughes.
On 27 July 2015, Mr Hendrie received a text message from Mr Ogden saying that he had forgotten to charge for gas and power bills and will be calculating the debt and advising him. Mr Hendrie wrote back an offensive reply telling him, amongst other things, that he was owed nothing, "that ship left 5 months ago" and calling him a "tight arse".
Mr Hendrie stated that in early August 2015, Mr Ogden approached him in the lunchroom and said to him words to the effect, "I will get you one way or another. I can be a sneaky bastard and I will get you out of the yard." Mr Hendrie advised Mr Pizzol of the tension between him and Mr Ogden. Mr Pizzol noted that it was a private matter between both men.
Mr Hendrie received, on 9 August 2015, a text message setting out the amount owed to him in energy bills and offering to receive the total amount of $1527.65 in instalments. Once again the response from Mr Hendrie was offensive and rude.
Mr Hendrie did not hear any more from Mr Ogden but was aware of rumours around the workplace that he was trying to rip Mr Ogden off.
[9]
Other Harassment Concerns
Mr Hendrie complained that other harassment issues he had been subjected to including rubbing out his number on the allocation whiteboard. He conceded, during cross-examination, that other drivers' numbers had been rubbed off too. He had seen numbers rubbed off accidentally by someone leaning against the whiteboard but had not witnessed anyone intentionally rubbing off the numbers. He agreed that Boral had replaced the whiteboard with a magnetic name system to address that problem. Nevertheless his magnetic nameplate had disappeared on several occasions. On one occasion he had to wait for over a week for a replacement. He could not recall that happening to other drivers.
The parties were in agreement that there were several instances of inappropriate use of the 2-way radio during 2015 but management was unable to determine who was playing the music because it did not have visibility over who was actually using the 2-way radio at any particular point in time.
Mr Hendrie gave evidence that in about August 2015, Mr Ogden played "One Way or Another" by Blondie over the two-way radio on the day following the verbal altercation in the lunch room when he threatened that he would get Mr Hendrie. He felt that the lyrics, "one way or another, I'm gonna get you, get you, get you" were intended to intimidate him.
Messrs McDonnell and Pizzol addressed the issue by:
1. Mr Pizzol modifying the radio systems gradually so as to be able to identify who was using the radio at a particular point in time; and
2. Mr Pizzol holding regular toolbox discussions relating to inappropriate use of the 2-way radio and directing employees to only use it for work purposes.
Mr Hendrie agreed that the practice dramatically reduced once Boral installed appropriate software in the trucks in about May or June 2015 and the matter was addressed at toolbox meetings.
On one occasion, the L J Hooker advertisement, "Thank you Mr Hooker" was played over the 2-way radio, presumably to annoy Mr Hendrie, as his wife worked in a real estate agency. Messrs McDonnell and Pizzol met with Mr Ogden and provided him with a written warning in relation to that matter.
[10]
The 22 August 2015 Incident
Mr Hendrie attended for work on Saturday, 22 August 2015 or earlier in 2015 and it was a particularly hard day. He attended the lunchroom at around 11 am where he saw Mr Rod Eastwood and Ms Jude Harnett.
Mr Hendrie noticed a sticker next to his name on the roster which read "a friendly reminder YOUR ACCOUNT IS OVERDUE".
Mr Hendrie recalled saying to Mr Eastwood words to the effect, "You know who put that on the notice board. You should tell your mate to stop it or he could lose his job over it." In his oral evidence, Mr Hendrie stated that up until then he had considered Mr Eastwood as his work buddy and considered that they got along pretty well. He said that the comment he made to Mr Eastwood was "a throwaway line". It appeared that Mr Eastwood took offence at the reference to "your mate". He now knows that Mr Eastwood and Mr Ogden are not friends. Mr Hendrie stated that "it was a yelling match type of thing and, to be honest, it's nothing that wouldn't happen on a rainy day in that yard anyway. It' a pretty regular event, you know, a couple of drivers yelling at each other…". Mr Hendrie said Mr Eastwood had responded yelling words to the effect, "Are you accusing me? Are you accusing me?" Mr Hendrie said he explained, "I'm not accusing you. You know who did it though".
Mr Hendrie stated that, at that point, they were both shouting with Mr Hendrie telling him not to be such a "bullshit artist" and Mr Eastwood chest charging him and repeating his question. Mr Hendrie insisted that, despite saying in the 22 August 2015 Incident Report, that he had braced himself and pushed Mr Eastwood away when the latter chest charged him, he was referring to pushing him away with his own chest. He was adamant that he had not pushed Mr Eastwood in any way with his hands and never grabbed him.
Mr Hendrie said that Mr Eastwood would not leave it alone and kept carrying on. Ms Harnett was telling them to go to their trucks and forget about it. Mr Hendrie said he stood his ground because Mr Eastwood would not leave it alone. He said he felt that he could not back off because of the intense rage in Mr Eastwood's face. Mr Eastwood started chest charging him again and he kept blocking him. In his written report on the incident written later that afternoon, Mr Hendrie stated that, at that point, Mr Eastwood put him in a headlock and threw him to the ground where he sat on top of him with his hand on Mr Hendrie's throat trying to choke him and threatening "to punch the shit out of me". Mr Hendrie said that he did not retaliate in any way but told him to have a free shot because he would not fight back. Mr Eastwood got off him telling him he was a "scum bag" and "a troublemaker".
[11]
Disciplinary Procedure
Mr Hendrie, accompanied by the TWU Lorry Owner Driver delegate, Mr Robertson, attended an interview on 25 August 2015 with Mr Pizzol. The meeting was conducted by Daniel Riad, HR Advisor. Mr McDonnell was overseas at the time.
Mr Hendrie was given an opportunity to provide a full explanation regarding the events of 22 August, the history with Messrs Hughes and Ogden and the more general bullying and harassment issues in the yard. As Mr Riad had not been aware of his bullying and harassment claim, Mr Hendrie provided him with a copy of his 22 August Incident Report and asked Mr Pizzol to provide Mr Riad with a copy of his earlier report. At the conclusion of the meeting, he said he was advised that he was being stood down indefinitely.
Both Mr Hendrie and Mr Eastwood were required to attend another meeting at Boral Head Office on 7 September 2015. Mr Eastwood's meeting preceded Mr Hendrie's. Prior to the meetings commencing, Mr McDonnell had read the report provided by the witness, Mr Hartnett:
I proceeded into the lunch room to check what my next load was. Rod was already in there and Richard came in later.
Richard saw there was a "sticker" which read "account overdue" with an arrow pointing to his truck number (422).
Richard then in an aggressive manner accuses Rod of putting it up there and that he's going to lost his job and Rod replied "I don't know what you're talking about." Richard replied if you didn't do it you know who did and they're going to lose their job. They kept arguing about it and Richard kept saying you know who did and Rod was protesting his innocence at all times then they came face to face with Richard grabbing Rod who put his hands up in defence and they both fell over each other and landed on the ground. They got up still arguing about it and Richard went to his truck to do his next load and Rod called someone. Then I went to do my next load.
Mr McDonnell had also listened to an audio-tape in the presence of Mr Eastwood who had not been aware of its existence prior to that interview meeting. The conversation in that audio-tape was recorded in the immediate aftermath of the brawl that took place in the St Peter's lunch room. The contents of that audio-tape were weighed up in reaching a determination on the disciplinary action to be applied to both owner drivers.
Mr McDonnell recalled that Mr Eastwood stated at the meeting words to the effect:
He [Mr Hendrie] started it. Richard said to me he would get me sacked for putting that sticker on the board.
He started it verbally and he started it physically.
There was some chesting then Richard raised his arms in an act of aggression. I responded by raising my own arms.
[12]
In response to Mr Hendrie's attempt to downplay the seriousness of the incident, Mr McDonnell reminded him, "It only takes one knock. Look at the Kelly kid at Kings Cross and it turns into a fatality."
Mr McDonnell insisted, during cross-examination, that Mr Hendrie had not raised a single issue of bullying in the workplace in the previous 15 months - between the previous incident in December 2013 and the physical altercation incident on 22 August 2015 in the lunch room at St Peters. During the said interview, Mr Hendrie took in a statement with him and started talking about allegations that had not previously been dealt with. He passed the statement across the table to him and he saw that it was the same one that Mr Hendrie had provided Boral on 24 December 2013. Mr McDonnell considered that the previous issue had been dealt with and was keen to move on to the altercation incident and not dwell on the past, particularly when they provided little basis to justify Mr Hendrie's attack on Mr Eastwood.
One of the allegations against Mr Hendrie was that he used inappropriate language in the workplace. During cross-examination, Mr McDonnell agreed that he may have used the word "fucking" during the conversation with Mr Hendrie explaining "I was actually frustrated that we were going off at a tangent when we were there to investigate a pretty serious matter".
Mr Hendrie accepted that his behaviour was inappropriate but argued that it was not uncommon. Mr Hendrie provided reasons in mitigation.
The meeting was adjourned. Mr McDonnell obtained legal advice as he was not familiar with the industrial laws applicable to lorry owner drivers. The advice confirmed his decision to terminate Mr Hendrie's contract effective 16 September 2015 for the following reasons:
1. Both drivers had engaged in a fight at the workplace;
2. Mr Hendrie was the aggressor from both a verbal and physical perspective;
1. All 3 persons present confirmed that he entered the lunch room and accused Mr Eastwood of either placing, or knowing who placed an inappropriate sticker against his truck number on the roster board. It was that accusation that resulted in a heated verbal exchange;
2. Ms Harnett, an independent witness, confirmed Mr Eastwood's contention that Mr Hendrie started the fight physically; and
3. Mr Hendrie admitted to starting the physical fight.
1. Both drivers had the opportunity to de-escalate the situation and walk away:
1. They were both screaming and swearing at each other for a few minutes before the verbal altercation became physical. Neither of them had walked away; and
2. They were chesting each other several times before laying hands on one another yet neither of them chose to walk away.
[13]
Post Termination
Mr Hendrie's Boral truck was parked on his friend's property as it is a limited vehicle having been painted up and built to Boral specifications.
Mr Hendrie confirmed that he had received a call from Mr Gow on 17 September 2015 to advise that he wanted to remove the Boral's barrel from his truck. Mr Hendrie sought advice from the TWU.
Mr Geoffrey McDonnell gave evidence that he became aware from an email from the TWU that it was going to dispute Mr Hendrie's termination. He acquiesced to a request from Mr Tony Woolgar (TWU) not to remove the transit mixer for the time being. As the matter got drawn out, he requested, after the conciliation, for the barrel to be returned. Three letters were forwarded to Mr Hendrie dated 22 December 2015, 27 January 2016 and 15 March 2016. The barrel would have been redeployed onto one of Boral's own prime movers or onto another lorry owner driver's truck.
Mr Hendrie explained that he had not returned the barrel after he received the first letter because he went to the TWU offices where an official, Mr Giddings, rang and spoke to Mr McDonnell. It was agreed during that conversation that the barrel would remain on the back of his truck until the dispute was resolved. During further cross-examination, Mr Hendrie agreed that Mr Giddings did not tell him that Mr McDonnell said it was alright to hold on to the barrel.
Mr Hendrie confirmed that he had received correspondence from Mr McDonnell regarding the return of Boral company property. He denied receipt of the letter dated 22 December 2015 but agreed that he had received the letters dated 27 January 2016 and 15 March 2016. The letters sought the return of the barrel, the property of Boral, which request he had refused despite an offer by Boral to have it removed from the truck so that his vehicle can be driven off without it. The replacement value of the barrel was in the vicinity of $50,000.
Mr Hendrie conceded that he had been asked for its return, once again, at the conclusion of the conciliation conference on 7 December 2015 but could not trust to return it. He pointed out that he had not refused to return to barrel but he had not received responses to his questions. Firstly, he had received conflicting estimates on how long it would take to remove the barrel - one or two days - and Boral had not provided any response to his question about compensation for his time in bringing it back. In addition, he had not been advised about what Boral was going to do to fix up his truck once the barrel was removed.
[14]
The TWU submission
The TWU addressed the evidence under four headings: the altercation between Messrs Hendrie and Eastwood; the history of bullying in the yard and its relevance to the decision to terminate Mr Hendrie; the fairness of the disciplinary procedure and, finally, the issue of the barrel.
The TWU summarised the evidence of Mr Hendrie. In conclusion, it was submitted that Mr Hendrie's evidence refutes the allegation that he acted violently and contends that he had been the victim of violence.
It was submitted that, over the 18 months leading up to the termination of MRA's engagement, Mr Hendrie made several complaints to the Respondent about bullying and harassment in their workplace. The issues were not resolved.
It was also submitted that Mr Hendrie's evidence illuminated a 2-year history of unaddressed or inadequately addressed bullying concerns. The Respondent did not have adequate procedures in place to protect Mr Hendrie's health and safety in the workplace. The comment from Mr Riad that he was unaware of bullying concerns demonstrated that the Respondent had inadequate procedures in place.
The placement of the offensive sticker against Mr Hendrie's name on the Board provided the flashpoint to the incident for which he was terminated.
Mr Hendrie considered that management was not capable of dealing with the bullying and it needed to be dealt with informally amongst peers. In view of the above, the history of bullying also went some way to mitigating Mr Hendrie's participation in the verbal altercation.
The TWU encouraged the Commission to find that Mr Hendrie was not the instigator of violence and did not act violently.
The TWU also submitted that in approaching the termination of a contract of carriage, similar principles to those pertaining to the termination of employees ought apply. In other words, the reason for dismissal must be one that is "sound, defensible or well founded": Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. In view of the above reasons, the termination of the Contract Carrier could not be considered as "sound, defensible or well founded" and, as a result, the termination was without a valid reason and generally unfair.
The TWU submitted that the termination of the Contract Carrier was, in the circumstances, unfair for the following reasons:
1. There was no proper or "valid" reason for the termination of the Head Contract;
2. The termination was tainted by procedural unfairness. It was contended that Mr McDonnell had prejudged the situation without having heard Mr Hendrie's version` of events. That is evidenced by the comment to Mr Hendrie "are you aware of the one punch laws?" and his later comment that other witness reports contradicted Mr Hendrie's version without giving Mr Hendrie an opportunity to respond to those reports.
3. There was a denial of natural justice as is evidenced by Mr McDonnell's failure to consider the issue of bullying and harassment. There was a lengthy history of unaddressed bullying of Mr Hendrie. The termination of the Contract of Carriage was unfair with respect to the manner in which it was effected. Mr Geoff McDonnell, Operations Manager, explicitly stated that he would not take the issue of bullying and harassment into account in considering the termination advising Mr Hendrie "that has nothing to do with this". The bullying and harassment was part of the essential substrata which led to the incident for which Mr Hendrie was terminated.
[15]
The Respondent's Submission
The Respondent provided the following grounds and reasons in support of its rejection of the claim:
On 22 August 2015, the Respondent became aware of an altercation that had occurred that morning between Mr Hendrie and one of the Respondent's employed drivers, Mr Rod Eastwood.
Both drivers were suspended pending the outcome of an investigation into the incident.
Mr Hendrie attended an investigation meeting with members of the Respondent's management team on 24 August 2015 in relation to the incident.
The allegations against Mr Hendrie were:
1. He had knowingly and willingly initiated a heated verbal exchange with Mr Eastwood, alleging that Mr Eastwood had placed a sticker against his name next to a roster, stating "your account is overdue".
2. He knowingly and willingly began confronting Mr Eastwood physically, bumping chests with Mr Eastwood.
3. He was asked to cease his behaviour by Ms Hartnett, an independent witness to the incident. Ms Hartnett is another of the Respondent's drivers.
4. He continued with the altercation thrusting his arms towards Mr Eastwood.
5. Mr Eastwood responded by placing his own arms up in self-defence.
6. Both drivers then brawled physically and fell to the ground, continuing their fight on the ground, and
7. He was the aggressor throughout the course of this fight.
Mr Hendrie admitted to numerous aspects of the above allegations.
The investigation revealed that all of the above allegations were established. It also found no evidence to suggest that Mr Eastwood was responsible for the sticker posted against Mr Hendrie's name on the roster.
Clause 3 of Schedule D defines "serious misconduct" as including the following behaviours:
1. "any act of violence, fighting, brawling or any other disorderly or undesirable conduct on Boral time or property" or
2. "conduct endangering the life, safety or health of others"; or
3. "failure to … work harmoniously with plant staff, other operators and employee drivers".
Clause 5.2 (f) of the Head Contract provides that the Respondent:
may immediately terminate this Head Contract by notifying the Operator in writing of such termination if … the Operator commits a serious breach of this Head Contract or the Contract Determination.
[16]
Legislation Framework
Section 314 (1) of the Industrial Relations Act 1996 empowers the Industrial Relations Commission power, after inquiry, to reinstate a contract of carriage that has been terminated.
Sections 314 (2) and (3) of the Act give the Commission the power to reinstate a contract of carriage that has been terminated on terms that it considers fit, including treating the period of the termination to be a period of engagement under the contract.
Section 314 (4) of the Act provides an alternative in that, if the Commission is not satisfied that reinstatement is practicable, it may order that the Respondent pay the Contract Carrier an amount of compensation not exceeding the amount of remuneration that the Contract Carrier received in the preceding six months prior to the termination of the contract of carriage.
Section 314 (5) provides that, in considering the compensation that is payable to the Respondent, the Commission must take into account whether the Contract Carrier sought and obtained alternate engagements and if not, the remuneration that the Contract Carrier would have received if they had obtained such engagements.
The parties were agreed that the earlier practice of the Commission, when conducting the inquiry into the termination of a contract of carriage, was to give consideration to whether the termination was "harsh, unjust or unreasonable". Cherry v Allied Express Transport 73 IR 305 [at 309] was cited as authority for that proposition:
It is appropriate to interpret this 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.
This approach was cited with approval in Transport Workers' Union of New South Wales (o/b of TWS NSW Pty Ltd and Ready Transport) and Smartskip (NSW) Pty Ltd [2008] NSWIRComm 55 (per Sams DP):
88 It seems an assailable proposition then that the traditional notions of unfairness in the dismissal of an employee may also be applied to the termination of a contract of carriage by a principal contractor. Such a finding may well result in the reinstatement of the contract, or in the event of the impracticality of reinstatement, orders for compensation to a maximum of six months pre-termination earnings.
[17]
Consideration
Mr Hendrie's Head Contract with Boral sets out the Operator's responsibilities as follows:
2.1 The Operator shall perform the cartage work in:
(a) accordance with this Head Contract;
(b) accordance with the Contract Determination; and(a)
(c) compliance with all relevant laws…
2.4 Until this Head Contract is terminated the Operator shall ensure that their nominated driver:
(a) performs the cartage work as required of the Operator by Clause 2.1; and
(b) does not do or omits anything which gives rise to a breach by the Operator of this Head Contract.
The Boral Resources (NSW) Pty Ltd Sydney Metropolitan Contract Determination provides at clause 30 Operating Procedures, an obligation on the Operator to perform the cartage work:
(c) in accordance with any procedures or policies relevant to the performance of the cartage work provided that they have been inducted into the policy or procedure and provided with a copy of it. …
Boral relied on the fact that it considered that both drivers had breached its Working with Respect Policy and its policy on Treatment of Serious Misconduct. With respect to the latter policy, it quite clearly indicates that the purpose of the policy is to outline the type of behaviour that constitutes serious misconduct and to stress that:
When an investigation reveals that serious misconduct by an employee or contractor has occurred, the summary dismissal of the employee, or the immediate termination of the contract arrangement in the case of a contractor, should be anticipated.
The said policy sets out examples of the type of behaviours that constitute serious misconduct including:
Any act of violence, fighting, brawling, or any other disorderly or undesirable conduct on company time or property.
Finally, the Head Contract between the Respondent and MRA Transport Pty Ltd sets out in clause 1 the consequences of committing serious and wilful misconduct and in clause 3 of Schedule D a list of indicative unsatisfactory behaviour and/or work performance which may constitute serious misconduct:
1. Principles
(a) ….
(b) …..
(c) Serious and wilful misconduct committed by the nominated driver shall constitute a serious breach of our Head Contract for the purposes of clause 5.2.
3. Unsatisfactory Behaviour etc.
(c) any act of violence, fighting, brawling or any other disorderly or undesirable conduct on Boral time or property;
(d) conduct endangering the life, safety or health of others.
[18]
Decision
The Application by the Transport Workers' Union of New South Wales (on behalf of Richard Hendrie operating as MRA Transport Pty Ltd ) seeking a determination of reinstatement of a contract of carriage is dismissed.
I Tabbaa AM
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: 05 April 2017
Mr Pizzol pointed out that if the alleged assault had been clear-cut, Mr Hughes would have, in normal circumstances, been stood down pending the outcome of an investigation. However, having spoken to both men, both their stories appeared viable and that was why Mr Hughes was not stood down over that allegation.
Mr McDonnell, Operations Manager - Concrete (Metropolitan), stated that he had interviewed Mr Hughes who admitted to using offensive language towards Mr Hendrie. He denied making pig noises and denied some of the offensive language he was alleged to have used. In relation to the spitting, Mr Hughes explained:
We were both spraying each other with water. Richard squirted me with water and my back got hosed. I sprayed him back. It was all over in about 30 seconds. We were both saturated. I was wringing wet and had water over my face. I slurped it and spat it out and some of it hit Richard.
Mr McDonnell said he issued Mr Hughes with a first and final warning in relation to his conduct towards Mr Hendrie. He said he advised Mr Hendrie that Mr Hughes had been counselled and that Boral had taken appropriate action.
Mr Hendrie gave evidence that he was not aware until he saw the documents produced in these proceedings that Mr Hughes received a breach notice in relation to that behaviour.
Mr Hendrie conceded that he noted some improvement in Mr Hughes' conduct and that when Mr Pizzol checked with him from time to time, he would state that there were still a few little things but "nothing to worry about".
Mr McDonnell stated that he continued to ask Mr Pizzol about Mr Hughes' behaviour during 2014 and 2015 and received feedback from him that on one occasion Mr Hendrie had complained about Mr Hughes being up to his old tricks but the former did not want him to act on that information. Mr McDonnell said he expected, and understood, that Mr Pizzol was continuing to monitor the relationship between both drivers. He contended that he had not been made aware of any other incidents between both drivers in the period April 2014 to September 2015.
Mr Hendrie stated that as they were yelling they had both approached one another at the same time bumping chests with Ms Hartnett trying to get them to stop and walk away. Apart from the chest contact, he did not initiate any other form of contact with Mr Eastwood prior to turning to walk away because he had a delivery to do.
In his witness statement, Mr Hendrie's stated that he did not have any recollection of how he wound up on the ground or of being pushed. During cross-examination, Mr Hendrie stated that he had his back to Mr Eastwood and took one pace before he found himself on the ground with Mr Eastwood on top of him. He said he had no recollection how he got on his back. Asked about why he would put in his 22 August letter that Mr Eastwood put him in a headlock and threw him to the ground, Mr Hendrie responded that he had assumed that it was the manner in which he was brought to the ground. He insisted that Mr Eastwood threw him to the ground, got on top of him, put his hands around his throat with his fists clenched and threatening "to punch the shit out of me". Mr Hendrie said he lay there with his arms apart and his palms open and said words to the effect, "Rod, if you're going to have a go, have a free shot because I won't retaliate. My job's worth more than that." He insisted that the only thing he did not recollect from the entire incident was how Mr Eastwood got him to the ground.
During cross-examination, he agreed that he was shouting at Mr Eastwood and using the word "fucking" multiple times but denied that he called him a "cunt". He also agreed that he told Mr Eastwood that he, and the person who posted the sticker, would lose their jobs.
In his statement in the proceedings, Mr Hendrie said he turned to walk away to complete a delivery and all of a sudden found himself on the floor on his back with Mr Eastwood sitting on top of him with his left hand on Mr Hendrie's throat and his right hand clenched in a fist positioned ready to hit him. He said he stayed on his back with his arms spread out and palms open and said words to the effect, "go ahead. Have a free shot. You can throw your job away, but I'm not".
Mr Hendrie left to deliver a load while Mr Eastwood phoned to report the incident to the Dispatcher on duty. When Mr Hendrie returned to pick up another load, the Dispatcher advised him that he was not being loaded anymore. Both he and Mr Eastwood were being suspended. He was advised to ring Mr Pizzol.
Mr Hendrie telephoned Mr Pizzol who advised him that they were both being stood down until the incident was investigated. Mr Hendrie understood that he would be able to return to work in 2 days. Mr Pizzol was definite that he would not have told Mr Hendrie that the stand down was for 2 days only.
An hour or two after he arrived back home, the Hendries heard a car sounding its horn repeatedly at the front of their unit. When they investigated, they saw Mr Hughes passing by in his truck - he was not sounding his horn at the time he was seen.
Mr Eastwood was not available to give evidence. It was obvious that he wanted to protect himself by telling someone but did not want to take it further. Nevertheless, he had to advise Mr Pizzol because his verbal telephone report to the Dispatcher, "Simmo", had been recorded. The transcript of that conversation states as follows:
Eastwood: Yeah, Simmo. I have got to tell you this, right. If this cunt goes to HR, right, I've got a fucking witness here, Judy, right. I've just put this cunt on the deck and I could have fucking smashed his head in. Right? This fucking 422 cunt, right. Someone's written something up on his - on his number, right?
….. and he's accusing me of knowing who it is, right. He said: "You fucking know who it is. You'll lose your job and fucking they will too."
I said: "What? Are you accusing me of losing my fucking job you…"
That's how it started, right. He started the fucking thing. So then we've come face to face, right? And then it got to a fucking screaming match right in each other's face so we've both grabbed each other. We're both on the fucking deck and I got on top of the cunt. But Ju-like, Judy was here to witness it and she's put - she said: "Don't Rocket! Don't! Don't do no -"
I never hit him or anything. But he's the one that brought it on, mate.
In response to questioning from "Simmo" as to who grabbed the other first, Mr Eastwood replied:
I've got Judy here. Judy! He approached me, didn't he Judy?
And Ms Hartnett confirmed: "Yes, yes!"
Judaline Hartnett has worked at the St Peters depot for about 3 years. She confirmed that it was common knowledge that there was a dispute between Mr Ogden and Mr Hendrie.
In her statement, she stated that both men leaned in towards each other so that they were face to face with their chests sticking out but without either of them initiating any contact. When Mr Hendrie put his hands up, Mr Eastwood did the same without either action creating a space between them and then they tussled and fell over each other to the ground. She could not recall who fell over whom. No words were exchanged when they were both on the ground. It was after Mr Eastwood got up that he said words to the effect, "I should fucking smash you, you cunt" as he was claiming innocence and asking Mr Hendrie why he was accusing him of something that he did not do.
Mr Eastwood asked her, as a witness, to accompany him upstairs to report it to Mr Pizzol.
She gave evidence that at no time did Mr Hendrie turn to walk away. Both men were face to face the whole time, both came together and both had hands on each other. She was also emphatic that at no stage was Mr Eastwood on top of Mr Hendrie. They might have rolled over and Mr Eastwood, being more slender, got up quicker.
Ms Hartnett gave evidence that there was widespread bullying throughout the St Peters yard.
Mr Hendrie stated that he was aware that Mr Eastwood's employment had been terminated at a meeting immediately before his and the TWU had negotiated for him a resignation with payment of all his benefits in lieu of dismissal.
Present at the meeting with Mr Hendrie were his support persons, Mr Robertson and a TWU Organiser, Mr Grahame Hastings. Representing management were Messrs McDonnell, Pizzol and Riad. Mr Riad described Mr Hendrie's behaviour on 22 August 2015 as serious misconduct. Mr McDonnell questioned him as to his awareness of "one punch laws" pointing out that someone could have been killed. Mr Hendrie pointed out that no punches were thrown and the only physical aspect of the altercation was him being thrown to the ground. In response to a question from Mr McDonnell as to why he should not be terminated, Mr Hendrie said he relied on the 2-year history of victimisation.
Mr McDonnell recalled the following exchange with which Mr Hendrie agreed:
McDonnell: You were the verbal and the physical aggressor?
Hendrie: I pushed him, he pushed me. Our chests bounced off one another. We were screaming and yelling, pushing and shoving one another.
Riad: What and that's acceptable?
Hendrie: No that's not acceptable… I put my hands in the air, that was not an act of aggression. I said "if you want a free shot go ahead but I'm not going to have you". For one minute, the crazy button was pressed. It's a shit thing that happened
McDonnell: You understand that fighting is serious misconduct?
Hendrie: Yes
McDonnell: This is an act of violence that constitutes serious and wilful misconduct. Boral has the right, if it chooses, to terminate your contract with immediate effect. Do you have any reasons why we should not exercise our right to terminate the contract?
Hendrie: I'm an asset to the Company. I uprooted myself from Milton to come to Sydney to help Boral. I've done everything for the Company, including travelling and I made a huge sacrifice to come to Sydney with my family. I'm rarely on the two way radio. It was one stupid moment of anger. I made a mistake - everyone makes mistakes….
He was referred to clause 5.2 of their contractual arrangement which entitled Boral to terminate the Head Contract immediately for "serious breaches":
Serious and wilful misconduct committed by the nominated driver shall constitute a serious breach of our Head Contract for the purposes of clause 5.2.
Boral considered that violence in the workplace amounts to serious and wilful misconduct which gives rise to a serious breach of the Head Contract.
Mr Hendrie gave evidence that he was supposed to be stood down with pay for two days while Boral decided what action was going to be taken against him. When he was terminated, he was not paid for the period in question.
Mr Hendrie has been working in alternative employment with Metromix since mid-February 2016. He was contacted by a former Transport Manager of Boral and offered the position. A brand new truck was purchased for him to operate. That Manager was with Boral when the incident occurred and was aware of the history behind it.
As a result of Mr Hendrie withholding the transit mixer, the Respondent had to hire a truck and agitator from a contractor/hire company/a competitor at a cost of between $750 - $1,200 per day.
The TWU was seeking the primary remedy of reinstatement available to the Commission to make under s. 314 of the Act: K-Dan Pty Ltd v Downer EDI Works Pty Limited [2009] NSWIRComm 1020 [at 52]. It was contended that reinstatement was not impracticable given that the number of workers at whose hands Mr Hendrie suffered from bullying and harassment were in the minority and given that the Respondent is a large company and Mr Hendrie can be reinstated to a similar contract in another of its yards in accordance with s 314 (2) of the Act.
In relation to the time between termination and his reinstatement, it was submitted that the period should be treated as a period of engagement and should be paid as though the Contract Carrier had been working on its average weekly earnings during that time in accordance with s 314 (3) of the Act.
In addition, Clause 30.1 of the Contract Determination requires the Contract Carrier to perform the cartage work "in accordance with any procedures or policies relevant to the performance of the cartage work".
The two policies relevant to the incident were:
1. The Working with Respect Policy - which requires individuals to treat others respectfully and with dignity and which prohibits conduct that a reasonable person would find intimidating and;
2. The Treatment of Serious Misconduct Policy - which indicates that "any act of violence, fighting, brawling or any other disorderly or undesirable conduct", constitutes grounds for dismissal or immediate termination of contract arrangements.
The behaviour of the Contract Carrier's nominated driver and sole director, constituted a serious breach of both the Head Contract and the Contract Determination and, as such, fell within the circumstances contemplated by Clause 5.2(f) of the Head Contract. The Respondent then gave genuine consideration to the react thereby entitling the Respondent to summarily dismiss the Contract Carrier's contract.
Prior to summarily terminating the Head Contract, the Respondent undertook the following steps:
1. A meeting was held with Mr Hendrie and his representative on 24 August 2015;
2. It considered Mr Hendrie's responses to the allegations;
3. Another meeting was held with Mr Hendrie on 7 September 2015:
1. To advise him of the investigation findings;
2. To explain that the Contract Carrier was considered to be in serious breach of the Head Contract and that the Respondent could choose to exercise the right to terminate the Head Contract in accordance with Clause 5.2 (f); and
3. To ask the Applicant to show cause as to why the Head Contract should not be terminated.
1. The Respondent then gave genuine consideration to the reasons provided by Mr Hendrie as to why it should not terminate their contract. The Respondent did not finalise its decision to terminate the Contract Carrier's contract until 16 September 2015 - some 9 days after the show cause meeting with Mr Hendrie.
Despite not being the aggressor in the altercation, Mr Eastwood was treated in a similar fashion by the Respondent and his employment ceased following the incident.
It was clearly obvious that the Respondent applied procedural fairness and parity of treatment in arriving at its decision.
The Respondent submitted in conclusion that the following were taken into account in ultimately resolving to terminate the Head Contract:
1. Mr Hendrie, sole director and nominated driver, of the Contract Carrier initiated a physically violent brawl with one of the Respondent's employees;
2. The disproportionate reaction of Mr Hendrie in response to a sticker placed on a roster;
3. The seriousness of Mr Hendrie's conduct in relation to the incident;
4. Mr Hendrie admitted his conduct;
5. Although his significant service was acknowledged, it was not without incident. There was evidence before the Commission of numerous instances when Mr Hendrie had engaged in inappropriate workplace behaviour, including aggressive behaviour, which have attracted verbal counselling;
6. The Respondent's duty of care to provide to other workplace participants, as far as is reasonably practicable, a workplace free from risks to their health and safety;
7. The Head Contract provided for summary termination for serious and wilful misconduct. Mr Hendrie was engaged in fighting or brawling and therefore seriously breached Schedule D of the Head Contract;
8. Mr Hendrie had also breached the Working with Respect Policy and the Treatment of Serious Misconduct Policy which expressly prohibits fighting and brawling and, as a result, has breach the terms of both the Determination and the Head Contract;
9. There was, therefore, a valid reason for the termination of Mr Hendrie - his behaviour of itself coupled with the breaches of policies and the Head Contract; endHe and
10. It was denied that Mr McDonnell had pre-judged what had taken place or had been disinterested in Mr Hendrie's version of events. The Contract Carrier was afforded procedural fairness prior to the termination taking place:
1. Mr Hendrie participated in a meeting on 25 August 2015 at which time he was provided with an opportunity to describe what occurred on 22 August 2015;
2. Mr Hendrie was invited to a meeting with the decision maker, Mr O'Donnell, on 7 September 2015 at which he was advised of the allegations of serious misconduct against him and provided with an opportunity to provide his version of events and provide a response to the proposed sanction. Mr Hendrie spoke about the bullying issue at the hands of Mr Hughes for approximately 10 minutes at that meeting and therefore it cannot be said that he did not have the opportunity to be heard on that issue and its relevance to the incident on 22 August 2015;
3. Mr Hendrie was permitted to have a support person at both meetings;
4. Mr McDonnell did not make a decision to terminate Mr Hendrie employment on 7 September 2015. Mr Hendrie's views were considered, and Mr McDonnell took advice on the matter, prior to any decision being taken regarding a disciplinary sanction. Mr McDonnell gave evidence of that consideration:
In relation to the previous incidents pertaining to Mr Hughes, I did take this into account in my deliberations. However, I did not consider that incidents in the past between Mr Hughes and Mr Hendrie excused Mr Hendrie's behaviour on 22 August 2015. I accordingly thought they provided little basis to justify Mr Hendrie's attack on Mr Eastwood.
1. Unlike other matters involving subtleties of particular comments and grievances, the incident on 22 August 2015 involved a very simple factual scenario. Mr Hendrie knew the substance of the allegations - a verbal argument followed by a physical altercation - and was given a fair opportunity to explain what he did and why he did it: Jalea v Sunstate Airlines (Queensland) Pty Ltd t/a Qantas Link [2012] FWA 1360. That is particularly so in circumstances where Mr Hendrie has consistently denied the allegations. Mr Hendrie did not suffer any disadvantage but not knowing who had made the allegations against him or by not being provided with copies of their statements: Matthew Malouney v ACM Group Ltd [2012] FWA 9386; Young v Janart Holdings Pty Ltd [2014] FWC 8410.
2. If the Commission finds flaws in the Respondent's argument in relation to procedural fairness, then the Respondent relied on the decision in Anthony Farquharson v Qantas Airways Limited [2006] AIRC 488 as authority for the principle that such procedural flaws do not invalidate the sanction ultimately imposed by the Respondent in this case:
[41] The fact of unfairness in the employer's decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken into account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstance where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect.
1. The bullying issues fell under three headings:
1. Inappropriate treatment of Mr Hendrie by Mr Hughes. The Respondent's investigations revealed that the only inappropriate behaviour that singled out and was directed towards Mr Hendrie was behaviour by Mr Hughes. The Respondent initially informally counselled Mr Hughes and later gave him a final written warning in January 2014. Monitoring of Mr Hughes' behaviour continued beyond that date. Later behaviour of Mr Hughes did not justify any disciplinary response. As those incidents pre-dated the 22 August 2015 incident by in excess of 18 months, it cannot be contended that they influenced Mr Hendrie's behaviour towards Mr Eastwood;
2. Removal of Mr Hendrie's name from the roster board. Mr Hendrie was one of a number of drivers who were subjected to immature, school-yard behaviour by other drivers by having their names removed from the roster board. The Respondent had provided evidence of the efforts made to address that behaviour - it conducted toolbox meetings during which it directed that the behaviour cease and it replaced the whiteboard roster with a magnetic roster board. It was contended that the behaviour ceased.
3. Playing of music over the 2-way radio. This complaint related to playing songs over the radio. The Respondent's management was unable to identify who was participating in this immature and professional use of the 2-way radio and took steps to address the problem by holding toolbox meetings during which a direction was issues to cease that behaviour and software was put in place to detect the culprit resulting in the practice ceasing. The investigations revealed nevertheless, that the subject of most of the inappropriate use of the 2-way was not Mr Hendrie but another driver. The Respondent issued a written warning to another driver, Mr Ogden in relation to misusing the 2-way radio to broadcast music from the L J Hooker advertisements. The Respondent was never aware of any songs being directed towards Mr Hendrie. In addition, the Respondent had no evidence that Blondie's "One Way or Another" was either played over the 2-way radio or, if it was played at all, that Mr Ogden was the individual responsible for it. Once again, it was contended that the mere misuse of the 2-way radio was no excuse for Mr Hendrie's behaviour on 22 August 2015.
In conclusion, the Respondent urged the Commission to dismiss the application on the basis that the decision to terminate the Contract Carrier's engagement was based on a valid reason and was not procedurally unfair.
The Respondent pointed out that DP Sams, who was upheld on appeal, in Smartskip relied upon existing case law on the terms "harsh, unjust or unreasonable" in order to determine whether unfairness existed in the termination he considered [at 90-92].
The TWU went on to point out that more recent authority indicates that the approach adopted is that it is not "necessary to gloss [the] term [unfair] further": Transport Workers Union of NSW o/b Kojic v Toll Transport Pty Limited t/a Toll Priority [2015] NSWIRComm 1006 [at 6].
That approach, the TWU argued, was consistent with the longstanding precedent in Cherry as noted by Kite AJ in Transport Workers' Union of New South Wales (o/b Sidhu Freight Pty Ltd v Toll Transport Pty Ltd trading as Toll Contract Logistics [2015] NSWIRComm 36 [at 12-3] because "the statute provides no specific criteria by which that discretion is to be exercised" and the principles in earlier cases were but one iteration of the discretion and how it ought to be exercised in the context of the Act.
The Respondent pointed out that Kite J, in Sidhu, had dismissed the application having concluded that the effects of the termination were not "harsh".
The TWU submitted that the Commission must determine whether the termination was unfair on the ordinary meaning of that work relying on the summary by Backman J of the views expressed in earlier matters before the Commission : Transport Workers' Union of New South Wales (o/b Darren Roger Bargwanna) v Robar Enterprises Pty Ltd [2013] NSWIRComm 84 [at 59]:
It matters little, in any view, what terminology such as "no valid reason", "unfair", "unreasonable" or "unjust" termination may be invoked in coming to a view about the circumstances of the termination of the agreement under s 314.
The Respondent pointed out that the authorities relied on by the TWU nevertheless indicate that an assessment of the harshness of the termination will likely be required in order to determine whether the termination is unfair. For example, in Bargwanna, her honour considered the impact of the termination from a "harshness" perspective from paragraphs [60] to [70]. Having considered all of the effects of the termination, her honour ultimately concluded that the termination "[71] …. was not harsh" and accordingly dismissed the application. Her honour found that the termination was "[59]… neither unfair, unjust nor unreasonable, nor was it lacking "a valid reason".
The Respondent distilled the task of the Commission in applying s 314 as follows:
1. Firstly, the Commission must satisfy itself that a contract has been terminated;
2. Secondly, the Commission must satisfy itself that the termination was "unfair". In the absence of any specific criteria mandated by the Act for consideration in determining whether the termination was unfair, it is likely that considerations regarding whether the termination is harsh, unjust or unreasonable and whether there was a valid reason for termination will be influential in determining whether a termination is unfair; and
3. Thirdly, only if a finding of unfairness is made, the Commission is empowered to impose a remedy which includes reinstatement of a contract or compensation is the former is impracticable.
The Respondent submitted that there were no grounds for making a Contract Determination or a compensation order in favour of the Contract Carrier for the following reasons:
1. The Commission must be satisfied that the termination of the Contract Carrier was "unfair"; and
2. There was a valid reason for the termination of the Contract Carrier which was not harsh, unjust, unreasonable or otherwise unfair.
There is no evidence before the Commission as to who put up the sticker on the roster board. More importantly, there was no evidence to suggest that Mr Eastwood was responsible for the posting of that sticker.
Based on Mr Hendrie's own evidence, Mr Eastwood was already in the lunchroom with Ms Hartnett when Richard Hendrie walked in. The evidence also indicates that Mr Hendrie considered himself a "work buddy" of Mr Eastwood. Mr Hendrie assumed, up until the altercation commenced, that Mr Eastwood was a friend of Mr Ogden.
Mr Hendrie cannot refute the allegation that he acted violently and contend that he had been the victim of violence. Despite the summary provided by the TWU as to how the fight commenced and progressed, Mr Hendrie's evidence was to the effect that they had approached one another at the same time bumping chests.
Although Mr Hendrie classified his comment to Mr Eastwood as "a throwaway line", during cross-examination he agreed that he was shouting at Mr Eastwood and using the word "fucking" multiple times and telling him that he, and the person who posted the sticker, would lose their jobs. During the interview on 7 September 2015, he had admitted to being the verbal aggressor.
There was no evidence of anyone being put in a headlock. Mr Hendrie stated that he had absolutely no recollection of how he got to the ground. The reliance, therefore, is on the independent witness who stated that Mr Hendrie never turned away from Mr Eastwood.
During the interview on 7 September 2015, Mr Hendrie admitted that he had pushed Mr Eastwood and Mr Eastwood had pushed him back and that their chests had bounced off one another. He agreed that both of them were screaming and yelling, pushing and shoving one another.
How Mr Hendrie landed on the ground is immaterial. The physical altercation had already commenced and Mr Hendrie was, by his own admission, the physical aggressor. Once a tussle began, it was inevitable that one of them would land on the deck despite the fact that there was no evidence of punches being thrown.
The TWU submitted that Mr Hendrie's evidence illuminated a 2-year history of unaddressed or inadequately addressed bullying concerns. I also note that Ms Hartnett gave evidence to the effect that there was widespread bullying throughout the St Peters yard.
The evidence before the Commission indicates that there are adequate policies and procedures in place. Policies and procedures are not worth the paper they are written on unless they are applied systematically and uniformly across the workplace. Local management needs to be pro-active in that regard. They need to be trained to identify early warning signs and respond adequately.
In this instance, Mr Hendrie provided a verbal complaint about the spitting incident to Mr Pizzol but declined, at first, to formalise it. Nevertheless, Mr Pizzol did have a word with Mr Hughes about his behaviour and Mr McDonnell issued him with a first and final warning.
Mr Hendrie advised Mr Pizzol that Mr Hughes kept on harassing him after that but again made it clear that he did not want anything done about it. Mr Hendrie conceded that Mr Pizzol kept checking with him from time to time throughout 2014 and 2015 and Mr Hendrie kept repeating that there were "a few little things" but "nothing to worry about".
Management had addressed the issue of the abuse of the 2-way radio which led to a written warning being issued to Mr Ogden.
I accept that Mr Hendrie had been subjected to very unsavoury conduct from other drivers in the yard and his patience was wearing thin. However, he cannot, on the one hand refuse to allow management to take action and then state that there was a lengthy history of unaddressed bullying resulting in having to deal with it informally himself. In any event, there was no history or any iota of evidence that Mr Eastwood, who copped the brunt of his anger on that occasion, had participated in any bullying or harassment against Mr Hendrie.
I find that Mr Hendrie breached the terms of the Head Contract and the policies and procedures set out above. There was, therefore, a valid reason for the termination of the Head Contract.
Procedural fairness was afforded to Mr Hendrie. Both drivers were stood down pending the investigation. A statement was obtained from Ms Hartnett. Mr Hendrie was required a preliminary interview on 25 august 2015 to which he was accompanied by the TWU Lorry Owner Driver Delegate during which it was not denied that he was provided with an opportunity to provide a full explanation on the events of 22 August; to provide a history of the ongoing dispute with Hughes and Ogden and more general bullying and harassment issues in the yard, to provide a copy of his 22 August Incident Report and ask Mr Pizzol to provide Mr Riad with his earlier report from 2013.
A further meeting was held with Mr Hendrie on 7 September 2015 at which time he was accompanied by his delegate and a TWU Organiser. It cannot be said that Mr McDonnell had pre-judged the situation by, firstly, accepting the contents of the independent witness statement over the response of Mr Hendrie. Mr Hendrie gave evidence that he had no recollection whatsoever of how he landed on the ground. The independent witness had a clear recollection and described it. Secondly, in relation to "one punch laws" Mr McDonnell explained that he had brought it up in response to Mr Hendrie's attempt to downplay the seriousness of the incident.
Finally, Mr McDonnell did not make up his mind on what disciplinary measure to apply, if any, until he had adjourned the show cause meeting and sought legal advice. Mr McDonnell provided clear and concise reasons for the decision to terminate Mr Hendrie some nine days later.
In Incident 1 related above, I found that Mr Hendrie had been rude to a client's traffic controller as he was leaving the site. Whilst that person may have been abrogating his duties, the manner in which Mr Hendrie spoke to a client's employee was rude.
Regarding the alleged Ogden debt, I can find nothing offensive in relation to the "manner" in which Mr Ogden sought payment. What I find most unfortunate is the manner in which Mr Hendrie responded - it was personal and it was abusive. If it had been responded to in a different way it may have been resolved differently. I do not pretend to know, from the evidence, if there was anything else between those two men that would have cause Mr Hendrie to respond in the manner that he did. My observation is strictly in relation to the evidence before the Commission.
I found Mr Hendrie to be truthful in his evidence. He was very hurt over matters that he had allowed to brew over many years but did not pursue further because he did not want any disciplinary measures to impact on the drivers' young families. Nevertheless he allowed his hurt to develop into anger which, unfortunately, was leashed on an innocent man who ended up losing his job because he did not walk away from Mr Hendrie's verbal aggression.
I do not find the termination to be either unfair, unjust or unreasonable nor was it lacking a valid reason.