Transport Workers' Union of New South Wales (on behalf of Edward Wosik t-as Wosik Transport Pty Ltd) and Owens Transport Pty Ltd [2009] NSWIRComm 210

Industrial Relations Commission (NSW)|2009-07-01|Before: Sams DP

CITATION: Transport Workers' Union of New South Wales (on behalf of Edward Wosik t-as Wosik Transport Pty Ltd) and Owens Transport Pty Ltd [2009] NSWIRComm 210

APPLICANT Transport Workers' Union of New South Wales (on behalf of Edward Wosik t/as Wosik Transport Pty Ltd) PARTIES: RESPONDENT Owens Transport Pty Ltd

TERMINATION OF CONTRACT OF CARRIAGE - allegation of serious misconduct against contract carrier - incident involving tying of a noose and it being found tied to roof of a forklift - complaint by forklift driver the next day - complainant threatens Police involvement - complainant's difficulties with other employees - complainant upset and fearful - respondent's investigation - CCTV footage - respondent convenes disciplinary meeting - driver admits tying a noose, but not tying it to the roof of the forklift - long service with respondent - personal, family and economic circumstances - contract terminated - whether redundancy relevant - claims of procedural unfairness - CCTV footage unclear - missing footage of another driver moving forklift - jurisdiction of Commission. CATCHWORDS: Held; Commission finds CCTV footage inconclusive and unclear - driver's consistent denials - findings made on balance of probabilities - onus of proving the misconduct not made out - redundancy not real reason for termination - driver not told of allegation before disciplinary meeting - driver not given reasonable and proper opportunity to respond - decision may have already been made - decision hastily made - driver denied procedural fairness - termination of contract harsh, unreasonable and unjust substantively and procedurally - failure to give proper consideration to driver's personal and economic circumstances - driver's apology genuine - driver never intended any hurt or upset - reinstatement of contract not impractical - glowing reference from manager - no animosity from complainant - no condonation of conduct - conduct not acceptable - no orders for lost remuneration - orders made to restore contract without loss of continuity.

LEGISLATION CITED: Industrial Relations Act 1991 Industrial Relations Act 1996

Bankstown City Council v Paris (1999) 100 IR 363 Briginshaw v Briginshaw (1936) 60 CLR 336 Byrne v Australian Airlines Limited (1995) 185 CLR 410 CASES CITED: Cherry v Allied Express Transport (1997) 73 IR 305 Deltec International Courier Pty Limited v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341 K-Dan Pty Limited v Downer EDI Works Pty Limited [2009] NSWIRComm 1020 McMullen and New South Wales Department of Education and Training [2009] NSWIRComm 83 Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy [2009] NSWIRComm 126

HEARING DATES: 5 November 2009; 6 November 2009

APPLICANT Mr S Bull Assisted by: Ms T Walton Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr S Meehan of Counsel Assisted by: Mr A Massaro Russell Kennedy Solicitors

44 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Transport Workers' Union of New South Wales (on behalf of Edward Wosik t/as Wosik Transport Pty Ltd) and Owens Transport Pty Ltd

Application by Transport Workers' Union of New South Wales on behalf of Edward Wosik t/as Wosik Transport Pty Ltd for a contract determination of reinstatement pursuant to section 314 of the Industrial Relations Act 1996 DECISION [2009] NSWIRComm 210 1 Mr Edward Wosik (t/as Wosik Transport Pty Ltd) seeks the reinstatement of his contract of carriage with Owens Transport Pty Ltd ('the respondent') following the termination of the said contract on 14 August 2009. While the terms of the contract between Mr Wosik and the respondent were not put in evidence in the proceedings, there was no dispute that the contract relevantly provided for the summary termination of Mr Wosik's services in the event of his misconduct. Similarly, there was no dispute that Mr Wosik had been engaged by the respondent, as a contract driver, for some 15 years, save for a period of two years from October 2002 to November 2004 when his vehicle was unavailable following an accident. Mr Wosik performed no work for the respondent during this period. 2 On 14 August 2009, following a disciplinary meeting, Mr Wosik was advised by the respondent's General Manager, Mr Cameron Clode, that his contract was to be summarily terminated. The termination was confirmed in a letter dated the same day. The letter was expressed as follows: Following our meeting this morning regarding your act of making and placing a noose on a fellow team members forklift, Owens Transport has no option but to terminate your contract. This termination is effective immediately. You are required to have our tautliner curtains removed from your tailer and returned to Owens Transport within 7 days. You are also required to remove any Owens livery from your trailer and prime mover. Owens has also immediately cancelled your company issued BP card and your E tag. These are also required to be returned. Once any livery is removed and Owens Transport has proof of this and the tautliner curtains are returned Owens will pay you all outstanding charges. 3 On 21 August 2009, the Transport Workers' Union of New South Wales ('the Union') filed an application, on Mr Wosik's behalf, for the reinstatement of his contract of carriage and compensation for lost earnings, pursuant to s 314 of the Industrial Relations Act 1996 ('the Act') or, in the alternative, the payment of $78,000, as compensation calculated at 26 weeks x $3,000 per week, pursuant to subsections (4) and (5) of s 314 of the Act. 4 The application was listed for conciliation on 2 September 2009, pursuant to s 315(1) and (2) of the Act, but no resolution of the matter was achieved. The Commission proceeded to hear the application (or, more correctly, conducted an inquiry) pursuant to s 315(3) on 5 and 6 November 2009. BACKGROUND 5 The circumstances leading to the termination of Mr Wosik's contract are relatively straight forward. They involve an incident in the afternoon of 12 August 2009, while Mr Wosik was preloading his truck for deliveries the next day. During preloading he was talking to two of the respondent's forklift drivers, Mr Damian Crisp and Mr Brett St Clair. Mr Wosik and Mr Crisp were playing with a rope and tied it into a noose. The noose subsequently found its way to being tied to the roof of a forklift, so that it dangled at head height in the operator's cage. Mr Wosik did not deny that he had tied the noose and said he had then inadvertently thrown the rope on the roof of the forklift. However, he strenuously denied tying off the rope in the manner in which it was found the next day by the forklift's usual operator, Mr Hirdesh Chand. The forklift had been moved from where it was left on the afternoon of 12 August to a location some 20 metres away (from one of the aisles to near the roller doors). Mr Wosik speculated that someone else must have tied the rope to the roof of the forklift and, presumably, whoever moved the forklift between the afternoon and the next morning, knew something about it. As Mr Chand had work problems with Mr Crisp and Mr St Clair, he had assumed it had been done by them to frighten and/or threaten him. There was no dispute that Mr Wosik and Mr Chand enjoyed a friendly working relationship. Mr Chand complained to Management and threatened to go to the Police if something was not done to ensure his health and safety at work. 6 The respondent's investigation primarily relied on CCTV footage which Mr Clode had viewed on 13 August at P&O Transport - the Company responsible for the CCTV footage at the depot. He viewed the footage of Mr Wosik tying the rope around 2:30pm on 12 August, Mr Wosik then throwing the rope over the forklift cabin and Mr Wosik entering the cabin to adjust the rope on the roof. Mr Clode also viewed footage of a subcontractor, Mr Brian Hoggerty, getting into the forklift and reversing it back at approximately 4:00pm. This latter continuous footage had since been destroyed and Mr Clode explained that the CCTV footage is stored on hard drive and once the hard drive gets to memory capacity, it rewrites over earlier footage, usually after two to three weeks. However, there were photos of the movement of the forklift by Mr Hoggerty. It would appear to be undisputed that Mr Hoggerty could not have missed seeing the rope, but he did not report it or complain about it. Sections of the CCTV footage and still photographs of various frames in the deleted footage were tendered in evidence. The Union claimed that the CCTV footage was inconclusive as to the crucial issue of whether Mr Wosik had tied off the noose to the forklift. 7 After Mr Chand's complaint, Mr Clode conducted an investigation that day and Mr Wosik became aware that he and Mr Crisp were being investigated about the incident. That night, Mr Wosik rang Mr Chand and expressed his regret for any upset caused to him. He also told him that he did not know Mr Chand was the driver of that particular forklift. 8 The next day a disciplinary meeting was held involving Mr Wosik, Mr Crisp, Mr Clode and Mr Paul McCracken, the Depot Manager. Mr Wosik volunteered his version of events, without seeing the CCTV footage. Mr Clode asked Mr Wosik if he had any explanation for his behaviour. He told him he had not meant to upset anyone and was sorry for the incident. He also questioned what had happened to the forklift when it was moved. Mr Clode then told Mr Wosik and Mr Crisp their services were to be terminated. There is an evidentiary dispute as to whether Mr Clode had told Mr Wosik he had made his decision the night before. THE EVIDENCE 9 Both parties were afforded considerable latitude in the written evidence filed and during the course of the examination in chief and cross-examination of the witnesses. Nevertheless, I am satisfied that the proceedings were conducted thoroughly and in a manner which did not compromise the integrity of the Commission's processes. Mr Wosik's evidence 10 Mr Wosik's statement differs in a number of significant respects from the evidence of the respondent's witnesses. These differences can be summarised as follows:

Mr Wosik claimed that after tying the noose and after the three of them dispersed, he went to the office to collect his paperwork while still carrying the rope. He said the office was about 50 metres away and he took ' maybe 5 minutes ' to go from where he was with Mr Crisp to the office and back. The respondent relied on the CCTV footage which showed that this sequence only lasted 17 seconds and it would have been impossible to have walked to the office and back (a distance of 150 metres) in that time.

Mr Wosik said as he walked past the forklift, he threw the rope over the cage of the forklift and it fell down the other side. He went back and threw it over again so it just hung down over the cage. The CCTV footage did not disclose the rope falling down the other side.

Mr Wosik denied tying the noose to the roof of the forklift. The respondent said the CCTV footage shows Mr Wosik spending about 30 seconds inside the forklift tying the rope to the roof.

Mr Wosik claimed that he did not know that forklifts were allocated to particular drivers, nor did he recognise that Mr Chand usually drove the only forklift which had a taller mast than all the others. This was the only difference to all the other six forklifts. He said that standing the forklifts side by side, the difference would be readily apparent (see photo Exhibit A), but without a comparator it was difficult to judge. Mr Chand's evidence was that Mr Wosik knew it was his forklift, as he had used it to load Mr Wosik's truck every day for two years.

Mr Wosik said that Mr Chand had told him, in the phone conversation on the night of 13 August, that he was going to withdraw his complaint now that he realised it was him who had placed the noose on the forklift and that he would not have complained had he known it had been Mr Wosik. Mr Chand denied both these parts of the conversation.

Mr Wosik claimed that when Mr Clode told him his contract was to be terminated, he had said he had made his decision the night before and the decision was not reversible. Mr Clode denied this and further denied telling Mr Keith Stone, the Union delegate, the day before the disciplinary meeting, that he was intending to terminate Mr Wosik's contract. 11 Mr Wosik relied on a reference signed by Mr McCracken on the day his contract was terminated. The reference was in the following terms: Mr Eddie Wosik has been employed by Owens Transport as a sub-contractor owner driver for the past 15 years. During this period, I have always found Eddie to be a punctual, pleasant and customer service focused operator. He has never damaged any loads and is a big loss to this operation. We wish Eddie all the best in any future employment. If you need to contact me on this matter, please use the phone numbers listed below. 12 Much of Mr Wosik's evidence in chief was directed towards his personal and economic circumstances and was not subject to challenge. Mr Wosik was born in Poland and is 55 years of age. His English is reasonably good and he has no difficulty in communicating in English. However, he has some difficulty in writing English. He arrived in Australia as a single man in 1979 and married in 1987. He has two children, aged 15 and 16, who live at home and attend a local private Anglican school. Both are on scholarships. His son is a gifted violinist who has private tuition. He has travelled overseas with the school orchestra at his parents' expense. 13 Mr Wosik's wife, who has had a history of cancer, had a part time job in a chemist. However, as a result of her husband losing his contract, she now works seven days a week. The family home has a $40,000 mortgage. The family also have an investment property, with a mortgage of $220,000. The mortgage is not fully recouped through rent and Mr Wosik described it as a poor investment. 14 Mr Wosik's truck is a Mercedes prime mover which he purchased in 1999 and which is valued at $264,000. His lease payments were around $3,200 per month for the first seven years and then he borrowed money from his brother to pay the residual on the truck of $44,000. Mr Wosik said his wife looks after the Company accounts. A record of the Company's business outgoings was tendered, which included vehicle insurance, workers' compensation and the registration of the truck. 15 Mr Wosik explained his movements on 12 August 2009, by reference to the depot's floor plan which was marked up by him in the witness box. He was also shown a photo of the forklift (taken by Mr Chand) with the noose tied to the roof of the cabin. He denied that he had tied the noose in the manner shown. He said he had just thrown the rope on the roof and didn't attach it to anything. Mr Wosik added that he didn't know whose forklift it was, because they all look the same. Mr Wosik said he had worked with Mr Chand for around two years and they had a friendly relationship. He had once bought some wholesale priced rice for him and Mr Chand had once come from his home and opened up the depot for him. 16 Mr Wosik claimed that he was not aware that Mr Chand had a difficult relationship with Mr Crisp and Mr St Clair until Mr Chand told him the night when he rang. Mr Wosik told Mr Chand he was very sorry for what had happened. Mr Chand had accepted his apology and told him he would withdraw his complaint. Mr Wosik performed three deliveries the next day and returned to the depot around 3:30pm to preload for the next day. During the preload, Mr Wosik was told that Management had directed his truck be unloaded. He was then told to attend a meeting at 9:00am the next day. 17 At this meeting, Mr Wosik was asked if he wanted to see the CCTV footage. He declined because he knew what had happened. Mr Clode asked him for an explanation of his conduct. Mr Wosik pleaded for another chance after having worked so long for the respondent, without complaint. Mr Clode had said he would not reverse the decision, which he had made last night. Mr Wosik said he received the termination letter a day or so later. 18 Mr Wosik deposed that after termination he did not work for eight weeks. During this time, he did some home renovations, but then started to run out of money. He obtained three days driving work from a friend doing work for Woolworths and some other short term engagements with Cahill Transport and Walker's Haulage. Mr Wosik said he was also owed outstanding payments from the respondent. 19 Mr Wosik said that he had intended to stay with the respondent until retirement and he wanted his job back. He had no animosity towards Mr Chand, or anyone else at the depot. Mr Wosik said he had never been warned or disciplined for bullying behaviour or for threatening anyone in the workplace. 20 In cross-examination, Mr Wosik acknowledged that there were four permanent forklift drivers at the depot and that it was Mr Chand who had mostly loaded his truck. This was because Mr Chand worked the morning shift. 21 On the depot layout diagram, Mr Wosik traced his movements on 12 August 2009, from when he said he left Mr Crisp, went to the office, collected his paperwork and returned to his truck. Mr Wosik denied spending around 30 seconds securing the rope to the top of the forklift. He agreed he did not throw the rope, but had stepped on the side step and put the rope on the roof of the cage. He had told Mr Chand he had tied the noose, but had not tied it to the forklift. He believed someone else had done so. After viewing the footage again, he now accepted that he spent around 30 seconds putting the rope on the roof. Mr Wosik consistently denied tying the rope in order to mislead the respondent as to what had happened. Mr Wosik said he had never meant to hurt anyone and had never tried to mislead anyone. However, he agreed what he had done was 'silly'. 22 Mr Wosik claimed that he did not know Mr Chand's forklift was different to the others, except the mast was slightly higher. He said he had approached the forklift from the back. Mr Wosik said that if the forklifts were parked in a line the difference is obvious, but if the taller one is parked separately one would not notice any difference between them. Mr Wosik said individual forklifts were not allocated to a particular driver. There were sometimes 10 subcontractors in the depot, who would use any available forklift. Indeed, he had used a forklift himself. Even having now seen the video, Mr Wosik could not say if it was Mr Chand's forklift (with the taller mast) in the footage because they all look the same. Mr Wosik agreed that he had no idea who would be using the forklift later that day or the next day. 23 Mr Wosik said that in the disciplinary interview, Mr Clode had said that his contract was terminated unless he could explain (his conduct) and he then said 'Sorry Eddie, I made my decision last night'. 24 In re-examination, Mr Wosik said he had admitted his involvement straight away because he regarded the incident as a stupid joke and he meant nothing by it. He certainly would not have done it if he had known the distress it caused Mr Chand. It was a big mistake and he was very sorry. Mr Wosik said that with the layout of the depot, he had taken the most direct route from the office, back to his truck which passed the forklift. 25 Mr Stone is the Union delegate at the depot. He has been a truck driver for around 30 years and a delegate for around five years. He has known Mr Wosik since 1999 and had found him to be an affable and easygoing colleague, very hard working, reliable and with a strong work ethic. He had never heard of any complaints about him. Mr Stone said he had not had any training on the respondent's bullying and harassment policies. He deposed that he had found some occupational health and safety policies in the office lunchroom, but said this was not an area where the drivers would usually go. Mr Stone deposed that the depot had a normal 'blokey' culture in which the occasional prank would be played by the drivers. 26 Mr Stone said that as a member of the Site Committee, he had attended a meeting on 24 July 2009, with Management, in which the respondent had discussed the lack of work and the possibility of redundancies. There was another meeting on 28 July where the issue was raised again in the context of voluntary redundancies. However, when the cost of two long term drivers, who were interested in redundancy was raised, the respondent 'pulled the redundancy back off the table'. In cross-examination, Mr Stone reiterated that redundancy had been put on the table at these two meetings. It had actually been noted in the minutes of the meetings. 27 In cross-examination, Mr Stone deposed that, after he left work on the afternoon of 13 August, Mr Clode had called him as a courtesy, because he was the depot delegate. He told him that he intended terminating Mr Wosik and a forklift driver (Mr Crisp) the next morning and that he, as the depot delegate, might be called into the disciplinary meeting. Mr Stone denied that Mr Clode said that he was conducting a disciplinary meeting the following morning and there was the possibility of a dismissal arising out of it. Mr Stone said he rang Mr Clode back and said he should consider suspending them. Mr Stone noted that he would not have rung back, if Mr Clode had not said he was intent on terminating them.

28 Mr Sam Catena is a contract carrier engaged by the respondent and has known Mr Wosik for seven years. He said Mr Wosik was polite and pleasant to work with and had never gone out of his way to offend anyone or cause any trouble. Mr Catena also agreed the workplace culture was 'blokey' and the drivers would 'kid around' from time to time. 29 Mr Catena confirmed that he was at the depot meetings on 24 and 28 July where the issue of redundancies was raised by Mr Clode because of a lack of work. Mr Catena said a couple of long term drivers put their names forward. However, when the Company calculated the cost of their redundancy, it was not anywhere like $5,000 or $6,000, so they took the issue off the table. 30 Mr Chand deposed that he would load and preload Mr Wosik's truck using the same forklift nearly every day. He estimated doing so on no less than 1000 occasions in two years. Mr Chand said the mast on his forklift is about one metre taller than the other forklifts in the depot and was designed to be able to access higher pallet racking. 31 Mr Chand said that when he arrived for work around 4:50am on 13 August he noticed a noose hanging from the roof of his forklift. He said he was angry and felt threatened. As he usually arrived early, and was the only person around, he felt it could be a warning of being physically harmed. He said he had 'enemies' in the depot and the noose made him think that those people were threatening him. He took four photos of the forklift with the noose as he found it. He did not touch it because he thought the Police might want to fingerprint it. 32 Mr Brian Doyle, the Warehouse Supervisor, arrived at 5:30am and Mr Chand showed him the forklift. Mr Chand said that, by this stage, he was quite shaken and felt threatened and angry. He suspected Mr Crisp and Mr St Clair were responsible, because he did not have a good working relationship with them. Previously, they had been aggressive towards him, yelled at him and drove their forklifts in an aggressive manner to cut him off. Mr Chand said he continued working that day, but wanted to know who had tied the noose and why. He decided if no one owned up, he would take the matter to the Police. Mr Chand understood Mr Doyle questioned each team member as they arrived for work, but no one admitted their involvement. 33 Later that day, Mr Chand spoke to Mr Clode. He was still upset and angry and said he would take the matter to the Police if it was not addressed. Mr Clode told him he would be reviewing the CCTV footage and that the matter was viewed seriously by Management. Later, Mr Doyle told Mr Chand that the culprits had been identified and would be dealt with the next morning. 34 Mr Chand agreed that Mr Wosik phoned him around 6:00pm that evening. Mr Wosik had said he did not know it was his forklift. He told him he tied the noose and had just thrown it on the roof of the forklift. Mr Chand told him that someone must have tied it and he suspected one of the other forklift drivers, who did not like him. Mr Chand agreed Mr Wosik had apologised for upsetting him. 35 In cross-examination, Mr Chand said there had been some bullying in the workplace, but not from Mr Wosik, who he described as a friend. Mr Chand did not initially believe that Mr Wosik had tied the noose, but suspected Mr Crisp and Mr St Clair. Mr Chand said that he had reported earlier behaviour of Mr Crisp and Mr St Clair to Management and some action had been taken; including them being warned. Mr Chand agreed he went to Management because their behaviour appeared to have escalated. He also thought it was a Police matter and if Management did not do anything, he would take it to the Police.

36 Mr Chand said that, although the keys to his forklift are always left in the ignition, he was surprised that it had been moved from where he had left it that day. Mr Chand agreed that, on the day in question, there may have been three or four other subcontractors on site, who also have forklift licences. 37 Mr Chand agreed Mr Wosik was remorseful and sorry he had been hurt. He had admitted tying the noose, but had said he had not tied it off to the roof of the forklift. Mr Chand agreed he could work with Mr Wosik if he was to return to the depot.

38 Mr Clode commenced working with the respondent in May 2001. Mr Clode described the operations and the staffing at the depot. He has known Mr Wosik for eight years and knew Mr Chand often loaded his truck. He was also aware that Mr Chand had problems with two other store persons in the depot. 39 Mr Clode was advised of a problem at the depot around 9:45am on 13 August. He met Mr Chand and Mr Doyle around 10:00am. Mr Chand appeared very upset and distressed and said he suspected Mr Crisp and Mr St Clair's involvement. Mr Chand said he would take the matter to the Police, if the Company did not adequately deal with the matter. At Mr Clode's request, Mr Chand completed an incident report. 40 Mr Clode said he then arranged for Mr Gavin Dobbs of P&O Transport - the head tenant on the site and the controller of the CCTV footage - to view the footage from around 2:30pm on 12 August to around 5:00am the next day. When Mr Dobbs called back, he told him he had observed three persons tying a noose in a length of rope and another individual tying the noose to the forklift. Mr Clode said that due to the size of the CCTV file, Mr Dobbs could not email the entire video, but sent him some still photos. 41 However, Mr Clode deposed that he viewed the complete footage around 1:00pm on 13 August and identified Mr Wosik as the individual who tied the noose to the roof of the forklift. At 2:30pm, Mr Clode contacted the respondent's Human Resources Manager, Mr Martin Devereux, and told him what had happened. Mr Devereux called back and told him Mr Wosik and Mr Crisp should be suspended and required to attend a disciplinary meeting the next morning. Mr Clode later told Mr Doyle not to preload Mr Wosik's truck. 42 At 4:15pm that day, Mr Clode called Mr Stone and told him that there would be a disciplinary meeting at 9:00am the next morning with Mr Wosik and Mr Crisp which could potentially lead to their dismissal. He asked Mr Stone to be around, if he was required to attend the meeting. (Mr Clode did not record in his statement that Mr Stone called him back to ask for Mr Wosik's suspension.) At 4:20pm, Mr Wosik approached Mr Clode and asked why he was not driving the next day. Mr Clode told him there was to be a disciplinary meeting at 9:00am the next day and he could have someone there to represent him. 43 Mr Clode said that even before he opened the meeting on 14 August, Mr Wosik said words to the effect of 'I tied the noose. If it's about the noose I did it'. Mr Clode replied that he knew he had done so because he was on the CCTV footage. The footage was shown and Mr Clode and Mr McCracken left the meeting to allow Mr Wosik and Mr Crisp to consider if they had any response. Upon returning, Mr Wosik pleaded his family and economic circumstances. Mr Crisp said nothing. Mr Clode denied telling Mr Wosik that his decision had been made the night before. 44 Mr Clode responded to Mr Stone' statement and said that the respondent's various policies are displayed in the workplace. He also claimed that the respondent had received complaints about Mr Wosik's behaviour as a driver from members of the public and he had received warnings about his conduct. There was no written record of these warnings tendered in evidence. 45 In examination in chief, Mr Clode explained how the CCTV footage for the time after Mr Wosik was seen at the forklift came to be destroyed. He said that the respondent has no role in administering or managing the CCTV footage. A few weeks after the incident, when he arranged for the Union, Mr Devereux and himself to attend the P&O Transport office to view the footage, Mr Dobbs had told him it had been written over the day before. However, having downloaded the footage from around 2:30pm he had then requested 14 hours from 3:00pm to 5:30am. These files were too large and had been written over. There were still shots, however of where the camera was 'tripped' by movement in the depot. He explained that while the cameras are operating 24 hours a day, seven days a week, if someone walks past a camera it will take a snapshot. That was how he was able to ascertain who moved the forklift and when. However, Mr Clode said he did view the continuous footage the day before it was wiped. 46 Mr Clode said that when he viewed the wiped footage, the noose was hanging behind Mr Hoggerty's head. He didn't touch it, or tie it and he moved the forklift about 10 metres. This was around 4:00pm. Mr Hoggerty had denied he saw the noose. He said 'I wasn't interested, it didn't worry me'. 47 Mr Clode said that after viewing the footage he formed the view that nobody had tampered with the rope after Mr Wosik tied it to the roof of the forklift. He had taken this into account, together with Mr Wosik's inability to offer any explanation for his conduct. 48 Mr Clode deposed that the distance between the office and where the forklift was shown in the video was around 150 metres. Mr Clode further deposed that the respondent's Occupational Health and Safety policy is displayed in various locations at the workplace, including the meal room. The respondent's bullying policy is also displayed in three areas - on the notice boards in the office, meal room and training room. 49 Mr Clode denied there had been any discussions about redundancies in the depot and there had been no proposal, in or around July 2009, of retrenching any employee or contractor in the depot. 50 Mr Clode said that he had not decided to terminate Mr Wosik's contract before the meeting with him on 14 August and had never said he had made his decision to do so the night before. 51 Mr Clode said that Mr McCracken had not asked if he could provide a reference for Mr Wosik and the respondent did not endorse what he had said in the reference. 52 In cross-examination, Mr Clode agreed that part of his duties as manager was to ensure the situation following the incident on 13 August, 'did not get out of control'. Mr Clode said he did not instruct Mr Chand not to go to the Police and he denied terminating Mr Wosik's contract so as to ensure Mr Chand did not go to the Police. Mr Clode said that the poor relationship between Mr Chand and Mr Crisp had been sought to be resolved by separating them in the workplace, but it was not the ideal solution. Mr Clode agreed that he had wanted to make sure that bullying and racism would not be tolerated. 53 Mr Clode said that there were no other incidents involving Mr Wosik at the workplace, but there had been several complaints of him driving dangerously, such as cutting off other vehicles and an incident of him throwing a milkshake at another driver. There were no formal records of these incidents. 54 Mr Clode said the initial purpose of his investigation was to identify the person responsible for tying the noose to the forklift by reviewing the CCTV footage. He observed Mr Wosik and Mr Crisp tying the noose and Mr Wosik tying it to the forklift. Mr St Clair was a bystander. Mr Clode said the noose was hanging down when Mr Hoggerty drove the forklift 15 minutes later. He agreed the still photos do not show this, but he claimed the CCTV footage had done so. He agreed that when Mr Hoggerty said he could not see the noose, he believed he was lying. Nevertheless, Mr Clode said that Mr Hoggerty did not touch the rope. 55 Mr Clode said that on 13 August 2009, when Mr Wosik's truck was being unloaded, Mr Wosik had approached him. He agreed there was no reason why he could not have told him what was happening. He agreed that he had not told Mr Wosik what the disciplinary meeting was about and could not now say why he did not do so. In any event, Mr Clode said that Mr Wosik would have known, because he had contacted Mr Chand that night. 56 Mr Clode deposed that when he rang Mr Stone that day, he did so out of courtesy to his position in the depot. He denied trying to head off a problem. He further denied he told him that Mr Wosik was to be terminated. Mr Clode agreed that Mr Stone had phoned back and suggested suspension, rather than dismissal. Mr Clode had said that, at the meeting, Mr Wosik would have an opportunity to explain his actions and he would make a decision then. Mr Clode could not comment on whether Mr Stone had the impression that Mr Wosik was to be dismissed. Rather, he said the phone call was a strong indication of the relationship between the respondent and the Union. 57 Mr Clode said that Mr Wosik did not offer an explanation, but was merely pleading for his job. However, Mr Clode could not say what would have been such an explanation. He did not believe that saying it was a joke was an acceptable explanation. Mr Clode agreed Mr Wosik had asked for one more chance. He had mentioned his family and his financial responsibilities. 58 Mr Clode deposed that there had been no loss of work for contract carriers in the Botany business. However, he agreed that in the meeting of 24 July 2009, there was the mention of potential redundancies and that it may be something the respondent could look at. At the next meeting, Mr Clode said he opened the meeting by saying that they should not be discussing redundancies. In any event, Mr Clode said Mr Wosik would not have been considered for redundancy because of where he worked. Mr Clode denied 'crunching any numbers' as to the cost of any redundancies. He further said that, in fact, Mr Wosik's termination had created problems for the respondent, because he was the exclusive operator of the tautliner and the respondent had to source another one. However, Mr Wosik was not replaced - another driver used the leased tautliner. 59 Mr Clode agreed that he did not know if Mr Wosik had received the respondent's manual, which included the Occupational Health and Safety policy. He was not aware of any training offered to drivers on bullying in the workplace. Mr Clode did not agree that there was a culture of joking around in the workplace - it was more about jostling by the drivers to get more hours. 60 Mr Clode believed that if Mr Wosik was reinstated it would send a seriously bad message that his behaviour was tolerated in the workplace. His duty as a manager was to provide a safe working environment and to take action if inappropriate behaviour occurs. Mr Clode did not agree that terminating Mr Wosik was designed to send a message to the workforce. 61 In questioning from the Commission, Mr Clode agreed that Mr Wosik and Mr Crisp were 'possibly not' equally culpable in the incident, yet they had received the same punishment (dismissal). SUBMISSIONS For the Union and Mr Wosik 62 Mr S Bull provided a written outline of his submissions which included a background of the factual matters, the jurisdiction of the Commission, the definition of misconduct, the meaning of 'harsh, unreasonable or unjust' and the principles of reinstatement and compensation for lost remuneration. 63 In his oral submissions, Mr Bull invited the Commission to accept Mr Wosik as a credible and honest witness. Mr Wosik had admitted his involvement in tying the knot and placing the rope on the forklift roof. He made these admissions, even before viewing the CCTV footage. Mr Wosik, however, vehemently denied tying off the rope to the forklift roof. Mr Bull said the CCTV footage is quite indistinct and inconclusive in this regard. 64 Mr Bull said that now, during the course of these proceedings, it was learnt that Mr Hoggerty had actually moved the forklift after Mr Wosik's involvement, yet Mr Hoggerty was not called to give evidence. Mr Bull said that he would have asked Mr Hoggerty if he had changed the placement of the rope. His absence leaves a significant gap in the evidence which should be resolved in Mr Wosik's favour. Mr Bull said the still photos of Mr Hoggerty are indistinct, but they certainly show he would have been aware of the noose, yet strangely he did nothing about it. The other gap in the evidence is the wiping of the continuous footage of Mr Hoggerty moving the forklift. 65 Mr Bull submitted that Mr Chand's ultimatum to Management 'do something about it or I'm going to the Police' affected the respondent's response and resulted in Management overreacting. It was every manager's nightmare - a bullying, racist incident that might spill outside the workplace. Mr Clode wanted to contain it and to be seen to have acted quickly and decisively. He was obliged to be more balanced and analyse Mr Wosik's involvement more carefully. He should have considered whether it was an incident worthy of summary termination. Mr Bull said it was particularly relevant that there was no history of bad blood or bullying between Mr Wosik and Mr Chand. 66 Mr Bull put that, as Mr Wosik's contract was summarily terminated for misconduct, the onus shifts to the respondent to prove the misconduct to a higher level where serious misconduct is alleged. Mr Bull said the conduct needed to be such as to constitute a repudiation of the contractual relationship. In this case, the conduct can be properly characterised as a thoughtless, mindless prank gone wrong. Mr Wosik had no history of bullying or threatening behaviour. Mr Wosik's actions were never seen as a malicious threat and he even sought to make amends with Mr Chand by apologising for what he had done. Mr Bull noted that the reality is that guilty people usually keep quiet. Mr Bull emphasised that Mr Wosik's apology was genuine, unprompted and meant some risk to him. Mr Bull said that, at the time, Mr Wosik did not know there was CCTV footage linking him to the incident. He has consistently told the same story, albeit with his limitations with English. He deserves credit for his consistent and candid admissions. 67 Mr Bull said that Mr Wosik had raised a successful family as a migrant to Australia. He was at an age where he expected to be contracted to the respondent until his retirement. He had made a huge investment in his truck. He had worked for the respondent for 16 years, save for a break of two years. After this, the respondent was very willing to take him back. He has an excellent history of service. 68 Mr Bull added that the incident was an isolated one and there was no bad blood between Mr Wosik and Mr Chand. They had got on well and would be able to work together if he was reinstated. Mr Bull said that this was not an incident deserving of summary dismissal, particularly as the drivers had had no training on bullying and harassment in the workplace.

69 Mr Bull submitted that the respondent's investigation was inadequate and designed to produce only one result. Mr Clode could not even say what would have been a reasonable explanation which might have changed his mind. Mr Clode was under pressure to take action, and it resulted in a 'brutal' outcome. Mr Wosik was not told what the disciplinary meeting was about. He was isolated and had no meaningful opportunity to respond. However, Mr Wosik readily engaged with the respondent during the meeting. 70 Mr Bull submitted that reinstatement was sought in this case, being the primary remedy under the Act. This was so considering Mr Wosik's age, job prospects and the substantial investment in his truck. Mr Bull said that there was no evidence of the impracticality of reinstatement. 71 Mr Bull put that Mr Wosik had lost earnings of $3,000 per week. This was a conservative estimate. He has had other post termination earnings which would obviously be taken into account in respect to any order for lost remuneration. Mr Bull put, in the alternative, that the Commission might consider discounting any compensation, if the misconduct is found to have been proven. By doing so, the Commission would 'send a message' to the workforce about this kind of behaviour. For the respondent 72 Mr S Meehan of Counsel accepted that the onus was on the respondent to prove Mr Wosik's misconduct and this onus had been discharged through a number of means. Firstly, Mr Wosik's own admissions as to tying the noose and, on the way to the office, throwing the rope over the roof of the forklift and coming back to do it again when the rope fell over the side. 73 Secondly, the CCTV footage makes it entirely clear as to what he did. In analysing the footage, Mr Meehan said that Mr Wosik had not thrown the rope over the roof, but rather had put his hands underneath the roof in a number of distinct movements so as to fasten the noose to the roof. 74 Thirdly, Mr Chand's photographs taken the next day, demonstrate the manner in which the rope had been tied. No one else had any involvement in touching the noose, including Mr Hoggerty (as Mr Clode described from his viewing of the footage). 75 Mr Meehan said the test in this case is not giving Mr Wosik the benefit of the doubt, but rather the test is, whether, on the balance of probabilities, the misconduct had been proven. There could be no doubt that this test had been met and the Commission would be comfortably satisfied that Mr Wosik spent about 30 seconds fastening the noose to the top of the forklift so that it hung just over the driver's seat. Mr Meehan said that if the Union wished to demonstrate someone else's involvement, it must bring some evidence to that effect. It was not up to the respondent to prove someone else was involved. 76 Mr Meehan put that Mr Wosik's evidence about going to the office was intentionally misleading. The timing of the footage showed he left Mr Crisp and arrived at the forklift 17 seconds later. He could not have gone to the office in the meantime (which Mr Clode said was 150 metres away) and picked up his paperwork and returned to the forklift. His own evidence was that he took five minutes to do so. In truth, Mr Wosik tied the noose to the forklift roof over a timespan of about 30 seconds. Mr Meehan said there was no throw over the forklift and no trip to the office. 77 Mr Meehan said that Mr Wosik had continued to propagate a misleading version of events when he spoke to Mr Chand and Mr Clode. He wanted to deflect his involvement from the seriousness of his conduct. Whether Mr Chand felt threatened or not, does not alter Mr Wosik's conduct. Anyone who saw such a noose would feel apprehensive about it, particularly if one did not know who had put it there, or why. The conduct could not be objectively viewed as a joke, as anyone could have seen it. Mr Meehan said it was a reasonable inference to draw that it was directed towards Mr Chand. Only four employees were in the area at the time and Mr Crisp and Mr St Clair were present when the noose was tied. Mr Meehan contended that it was implausible that Mr Wosik did not know the forklift was Mr Chand's, given he had loaded his truck almost exclusively with the same forklift. 78 Mr Meehan referred to the CCTV footage and described what was occurring at different points in time. There was no indication of the rope falling off the forklift. Mr Wosik was clearly shown under the canopy or the roof and his left arm is extended and moving up. Mr Meehan submitted that this conduct was serious misconduct. It constituted a threat and raised concerns with occupational health and safety. 79 As to the investigative process, Mr Meehan said that Mr Wosik was given an opportunity to view the CCTV footage and to offer some explanation. He did not do so and rather pleaded to retain his job. He had the opportunity for a Union representative to be present. The investigation was not 'brutal'. Mr Wosik had everything he needed to respond. 80 As to the apology, Mr Meehan submitted that it was made after Mr Wosik knew he had been caught out. There was not a skerrick of evidence that Mr Hoggerty had anything to do with tying the rope. Further, Mr Meehan said there was no evidence that the respondent condoned bullying or threatening behaviour. A culture of joking around does not amount to this type of conduct. Mr Meehan said there was no evidence that Mr Clode had decided the matter the night before or that the outcome was pre-determined. 81 Mr Meehan submitted that Mr Wosik's post termination earnings was around $17,000. Although Mr Wosik's personal circumstances must be considered by the Commission, they would not be outweighed by the seriousness of the misconduct. The application should be dismissed. In reply 82 Mr Bull said the 17 seconds between leaving Mr Crisp and arriving at the forklift, does not make any difference. Mr Wosik may have simply made a mistake about whether he placed the rope on the roof on the way to the office or on the way back. Mr Bull said the CCTV's times could be wrong. Mr Bull said the still photos show the rope sitting on the roof, pretty much as was described by Mr Wosik. 83 Mr Bull said, in any event, the CCTV footage was inconclusive as to whether he tied off the noose. Mr Bull said it was never put to Mr Wosik that he was lying about going to the office or how far away the office was. 84 Mr Bull added that there was no intention by Mr Wosik to frighten or threaten anyone. Mr Hoggerty was not affected by the noose. It was a mindless act, but it was not intentional. This would mitigate the behaviour. Mr Bull agreed that Mr Wosik must have intended to so something. Mr Bull said Mr Wosik's apology was significant because it was made without him knowing what evidence there was against him. 85 Finally, Mr Bull said he did not submit that the workplace culture involved condoning bullying. However, it did involve silly pranks, which may go wrong from time to time or get out of hand. While Mr Wosik's conduct was inappropriate and the situation got out of hand, he was apologetic for what had occurred. CONSIDERATION Jurisdiction of the Commission 86 The Commission's power to make a contract determination, with respect to the reinstatement of a contract of carriage, which has been terminated, is found at s 314 to s 316 of the Act and provides as follows: 314 Jurisdiction with respect to reinstatement of contracts (1) The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or contract of carriage that has terminated. (2) Reinstatement of a contract includes re-engagement under a similar contract. (3) A contract determination under this section may be made on such terms and conditions as the Commission thinks fit, including provision for any period after the termination of the contract to be treated as a period of engagement under relevant contracts. (4) If the Commission considers that it would be impracticable to make a determination for reinstatement, the Commission may order the bailor to pay to the driver, or the principal contractor to pay to the carrier, an amount of compensation not exceeding the amount of remuneration of the driver or carrier under relevant contracts during the period of 6 months immediately before the termination of the contract. (5) When assessing any compensation payable, the Commission is to take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received in alternative engagements, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements. (6) A contract determination under this section takes effect when it is made, and is not required to have a specified term or to be published on the NSW industrial relations website. 315 Conference to precede contract determination (1) When application is made to the Commission to exercise its jurisdiction under this Part, the Commission must, before it considers the application, summon to attend and confer with the Commission the applicant and such other persons served with the application as the Commission may direct. (2) At the conference, the Commission is to: (a) ascertain which of the matters with which the application is concerned are in dispute and which are not, and (b) ascertain whether there are any special circumstances or problems existing with respect to contracts of the class with which the application is concerned, and (c) take all reasonable steps to effect an amicable settlement of any matters in dispute. (3) After conferring on an application, the Commission may: (a) dismiss the application, or (b) proceed to hear the application or specify a time and place at which it will be heard, or (c) adjourn the application for such period or periods as it thinks fit. (4) Before hearing an application, the Commission may require service of the application on such persons as it may direct. 316 Making of contract determinations (1) After hearing an application for it to exercise its jurisdiction under this Part, the Commission may: (a) dismiss the application, or (b) make a contract determination with respect to the application. (2) When the Commission makes a contract determination: (a) it may defer the operation of the determination wholly or in part for such period or periods as it thinks fit, and (b) it must specify the class or classes of contracts in respect of which the determination is to operate (including classes defined by reference to a named bailor or principal contractor). 87 These provisions are relevantly no different to those previously found in s 680 of the Industrial Relations Act 1991. This power, under the 1991 Act, was discussed in Deltec International Courier Pty Limited v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341, where a Full Bench of the Commission said at page 355: In any event, and importantly for present purposes, the observations of the Full Court in Terrigal, which we have cited above, persuade us that the general scope of the reinstatement power in terms of remedies available has long been seen as available under the general industrial matters" power, even absent a provision such as s.20A of the former industrial Arbitration Act dealing more specifically with the relief available. The decision of the Full Commission (Fisher P., Peterson J., and Connor C.C.) in Hudson considered s.680(3) as to its scope in enabling the reinstatement of contracts of carriage involving a series of discrete and finite contracts. Although the particular point in Hudson was not an issue before us, the Full Commission was required to comment generally as to Ch. 6 and did so as follows (46 IR at 162): We consider that the history of Chapter 6, its precursors and amendments makes it entirely clear that reinstatement by way of a contract determination with respect to reinstatement, as appears in s.680(3) has to be read in relation, not to the meaning of reinstatement within the terms of conventional employment, but in relation to the meaning that reinstatement as an industrial remedy beats in the context of the specific provisions of Chapter 6 for the carrying out of a quite different industrial relationship and that relationship's particular exigencies.

The distinction between weekly and casual employment, and also term employment, are not existent here. True it is that some elements of each form of contract may exist but we prefer the view that any perceived analogy must be limited to a general indication that the concept of reinstatement should apply to contracts of carriage; not that a system of reinstatement having each of the aspects of principle developed for particular and markedly different contracts should attach to, let alone defeat, the concept as it can apply to contract carriers. We respectfully agree with those observations and emphasise the point there made, as we have endeavoured to make it, that s.680(3) is not concerned with reinstatement in terms of the ordinary employment relationship but rather with a remedy in the somewhat different relationship of principal contractor-carrier.

And at pages 356 and 357: We conclude that the concept of reinstatement in s.680(3), in itself, is sufficiently wide to comprehend the power for a determination to be made for the reinstatement of a contract of carriage, and as including compensation for loss of income during the reinstated period, retrospective to a date not before the date of termination of the contract. Alternatively, a determination may be made with respect to a reinstatement effected from a future date for compensation for loss of income retrospective to a date not before the date of termination of the contract. The course adopted by the Commission in any particular case will depend on the circumstances of that case and the making of a determination appropriate thereto. In the present case, the conciliation commissioner adopted the alternative approach as we have stated it, except that the compensation allowed for the loss of income was limited to the period from the date of the application for a determination to the date of the decision and even though reinstatement was deferred for six days after the decision was given. That was, in our view, within the parameters of the power under s.680(3) and a matter for the conciliation commissioner's discretion; it was a course properly open in the circumstances. To the extent necessary,, the expression in sub-s.(3) "with respect to", if anything, extends and emphasises the wide extent of power otherwise found. 88 Peterson J had cause to consider the provisions of s 314 of the Act in Cherry v Allied Express Transport (1997) 73 IR 305, where his Honour said at page 307; It may be immediately observed that the section is not expressed in the same way as s 84 dealing with the reinstatement of employees where a termination by the employer is harsh, unreasonable or unjust. The power to make a contract determination with respect to reinstatement referred to in s 314(1) concerns relevantly, a contract of carriage "that has terminated". This provision is in identical terms to s 680(3) of the Industrial Relations Act 1991 (NSW) which was the subject of consideration by the Full Commission of the former Commission in Deltec International Courier Pty Ltd v Transport Workers Union of Australia (NSW Branch) (1993) 50 IR 341 (Hungerford and Marks JJ, Sheils CC) where the Full Commission made certain observations concerning s 680(3) concerning its ability to support jurisdictionally an order for the payment of an amount of remuneration relevant to the period between the date the contract of carriage was terminated and its reinstatement.

And at page 309 said: In the light of this history, it seems to me appropriate to interpret the power as one which is to be applied, at least if not solely, in circumstances where there has been an "unfair" termination of a contract of carriage. This means that it may be applied in the same circumstances as apply to employees. Here that involves considerations of resignation or constructive dismissal, reinstatement and compensation.

See also more recently K-Dan Pty Limited v Downer EDI Works Pty Limited [2009] NSWIRComm 1020. 89 It will be plainly obvious from the cases cited above that the Commission is to apply, in the present circumstances, the same principles which would ordinarily apply in an alleged unfair dismissal case, where serious misconduct is the reason given for an employee's dismissal. This includes the principles discussed in a long line of cases under Pt 6 Ch 2 of the Act, and which are usefully summarised by reference to a recent Full Bench decision in Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy [2009] NSWIRComm 126. That decision considered:

a) whether the employee's misconduct had been proven to the requisite standard i.e. on the balance of probabilities;

b) whether the employee's conduct warranted summary dismissal;

c) whether the employee's dismissal was harsh, unreasonable or unjust; and

d) the appropriate remedy, having regard for the primacy given to reinstatement where a finding of unfairness is established. 90 A further matter arises in this case which also has equivalent resonance in unfair dismissal matters; and that concerns whether Mr Wosik was denied procedural fairness in the process leading up to, and including, the termination of his contract on 14 August 2009. For discussion of the relevant principles, I refer to McMullen and New South Wales Department of Education and Training [2009] NSWIRComm 83, at par [205]: 205 The thrust of the applicant's argument here is that the entire process was biased and everyone involved in it had been tainted, one way or another. Authorities for the proposition that an unfair process might invalidate a dismissal are to be found well summarised in Austin v NF Importers Pty Ltd (2005) 146 IR 113, where the Industrial Court said at paras [12] to [17]: 12 However, Mr Austin's fourth allegation - that he was not given an opportunity to respond to the general manager's belief that he had improperly turned a blind eye to the copying of illegal software - goes to the heart of the misconduct relied upon by the respondent, NF Importers Pty Ltd, and we gave anxious consideration whether to grant leave to appeal in relation to the relevant grounds in the application for leave to appeal and appeal. On balance, having regard to the reasons given by Staff J in this respect and the submissions made on behalf of the respondents, we also decided to decline leave in this respect.

13 At paragraphs [152] - [153] of the judgment at first instance, Staff J held: [152] I reach this conclusion [that the summary dismissal was not unfair] notwithstanding an allegation that the respondent failed to follow appropriate processes during the investigative and determinative aspects of the respondent's process. Viewed objectively, the termination of the applicant's employment by reason of his conduct did not, in all the circumstances, constitute relevant unfairness. The alleged failure to follow these provisions, even if established, could have no effect on this conclusion. [153] As Hill J said in Mason v Electricity Commission of New South Wales t/a Pacific Power (1995) 62 IR 436 at 442 (which was endorsed by Walton J, Vice-President, in Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122 at 204): Clearly the employer must be a judge in its own cause, may be biased and indeed may have prejudged the matter. But these considerations will not affect a dismissal which is otherwise justified on the merits.

14 If paragraph [152] were read in isolation, it may appear that Staff J concluded that the first respondent's actions did not constitute unfairness prior to considering and evaluating Mr Austin's allegations that he had not been afforded procedural fairness. Such an approach would underrate the potential significance of the failure to observe procedural fairness.

15 As the Full Bench stated in Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 50, unfair dismissal cases provide guidance when dealing with a claim under s 106 that the contract has become unfair primarily as a result of the actions of the respondent in terminating it. The correct approach in relation to procedural fairness in unfair dismissal cases has been stated by the Court in a number of cases, including Abboud, Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37; Starr v Commissioner of Police [2001] NSWIRComm 226; and Gow v Cronulla Sutherland Leagues Club Ltd (2002) 119 IR 122. Failure to follow an appropriate procedure may result in a dismissal being harsh, unreasonable or unjust; but not every failure of a procedural kind will warrant the intervention of this Court.

16 There are many cases where findings relating to procedural fairness will be critical to the essential elements of the case, particularly in the context of allegations of serious misconduct. In those cases, the employer bears the evidentiary burden of establishing a proper basis for summary dismissal for misconduct: see ( Pastry Cooks Union v Gartrell White (No 3) (1990) 35 IR 70 at 83; Franklins Ltd v Webb (1996) 72 IR 257 at 260). Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd provides the following graphic illustration of the manner in which a denial of procedural fairness can cast real doubt upon or taint the finding of serious misconduct and can indicate the need for real caution in evaluating a respondent employer's case: [114] Thirdly, the dismissal was harsh, unreasonable and unjust due to the procedures adopted by the club in terminating the appellant. Notwithstanding that at all relevant times the appellant knew the general nature of the allegations against her, there was, in reality, a deprivation of any proper "opportunity" (to use the language of s 88(b) of the Act) to make out a defence in relation to the allegations made against her, or to give an explanation of the conduct which was said to warrant dismissal. Whilst the respondent appropriately interviewed the appellant and invited her to provide an explanation, she was deprived of the actual records to which the allegations related. This failure so fundamentally affected the appellant's opportunity to give an explanation or provide a defence as to effectively, if not formally, deny that right absolutely. [115] This denial of access to the club records amounted to a substantive failure to provide such an opportunity and thereby was a substantially unfair procedure. To the extent that illustration of this is necessary, this was demonstrated by the fact that, in a sense, the whole process in this case miscarried in consequence of it -- leading not only to the appellant's summary dismissal, but also to the lack of assistance afforded to the Deputy President in hearing the matter, in that his Honour received only limited submissions or analysis because of the lateness of the receipt of the records in question. [116] By virtue of the respondent's unfair investigation procedure, from the outset the appellant was placed in a false position in relation to the allegations. She was, in effect, invited to incriminate herself by providing information to explain conduct which purported to have been her own, but in circumstances in which it was not effectively possible for her to confirm that the anomalies for which she was deemed responsible were even within her command.

17 In some cases, a denial of procedural fairness may give rise to a conclusion that the contract was unfair simpliciter . In Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 389, the Full Bench stated: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.

See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Frew v Australian Airlines; Burke v McGirr (1995) 185 CLR 410; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1995) 87 IR 57; Abboud v the State of New South Wales (Department of School Education) (1992) 92 IR 32; Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 and D&R Commercial Pty Ltd v Flood (2002) 113 IR 344. Who tied the noose to the roof of the forklift? 91 The answer to this question lies at the heart of my determination of this application. However, that is not to suggest that this will be an easy or straightforward matter. On the one hand, there is the unequivocal denials of Mr Wosik that he did nothing more than tie the noose and throw the rope onto the roof of the forklift. On the other hand, there is Mr Clode's conclusion that the CCTV footage makes it clear that Mr Wosik did, in fact, tie off the noose to the forklift in the manner in which it was found the next day by Mr Chand. The evidence pointing in Mr Wosik's favour includes:

While the CCTV footage shows Mr Wosik spending some 30 seconds in and around the forklift and handling and placing the rope on the roof, it is not, in my opinion, and having viewed it many times, sufficiently clear to definitely establish that he was actually tying the rope off to the roof of the cabin. 2. There are still photos activated by Mr Hoggerty moving the forklift. In my view, the photos do not clearly disclose the noose hanging from the roof. The rope appears to me to be 'bunched' up on the roof.

There is no doubt that someone moved the forklift and would have done so with the rope on, or attached to, the roof. There is no available CCTV footage of the forklift being moved by Mr Hoggerty from its location in the aisle to where it was found the next morning near the roller doors. Mr Clode identified one subcontractor driver, Mr Hoggerty, who was driving the forklift during the relevant period, around 4:00pm. Mr Hoggerty did not complain about it or report the noose to Management. He gave no evidence in these proceedings as to how the rope appeared when he entered the forklift. It is possible that he had something to do with attaching the noose. However, the evidence is inconclusive in that respect, and I cannot make such a finding.

Even if Mr Wosik knew it was Mr Chand's forklift, it would make no sense, having regard for their friendly relationship, why he would deliberately intend to threaten or frighten him.

I cannot discount the possibility that the respondent's initial motivation to take decisive action against Mr Wosik and Mr Crisp was because Mr Chand had threatened to involve the Police. 6. Mr Wosik has consistently said he did not tie off the noose, but has admitted from the outset he had tied the knot. He willingly volunteered what he had done before seeing the footage. This might mean he was open and honest from the outset and did not need confirmation from the video. He could not have known what was on the footage and whether it would conclusively prove he had, or had not, tied off the noose. In the alternative, as Mr Meehan suggested, it might mean he knew he had been caught out and had no option but to admit his involvement, while still not acknowledging tying off the noose.

Mr Wosik has no history of threatening or intimidatory behaviour in the workplace and I am satisfied from my observations of him in the witness box, and from the evidence of his work colleagues, that he does not present as a person who would deliberately intend to hurt, threaten or bully anyone.

There was evidence that at least four other persons, in addition to Mr Wosik, who were aware of the existence of the noose. None of them were called to give evidence as to their knowledge of the chain of events which followed the tying of the noose.

It is not entirely clear how many other subcontractor drivers (other than Mr Hoggerty) were in the depot at the relevant time between around 4:00pm on Wednesday, 12 August to 5:00am on Thursday, 13 August 2009. Mr Chand said he believed there may have been three or four subcontractors around at the time and who all had forklift licences. 92 In the alternative, the following matters can be identified as being against Mr Wosik's version of events:

Mr Clode was firmly of the view, having seen the complete CCTV footage, that it positively identified Mr Wosik tying the noose to the roof of the forklift. 2. On 13 August 2009, Mr Clode observed the actual footage which was later wiped and said that he did not see Mr Hoggerty touch or tie the noose. It was hanging behind his head. Mr Clode said Mr Hoggerty denied seeing it and had said 'I wasn't interested. It doesn't worry me' .

It makes no sense why Mr Wosik would carry the rope to the office and back again. In any event, I accept that the time Mr Wosik left Mr Crisp to his arrival at the forklift was 17 seconds. It would have been impossible for him to have gone to the office and return, when the office was 150 metres away. Moreover, his own evidence was that he spent about five minutes going to the office and back.

Mr Chand said that Mr Wosik was not telling the truth when he said he did not know it was his forklift. He had used the same forklift on over 1000 occasions and had been observed by Mr Wosik loading his truck with the same forklift.

Mr Chand denied telling Mr Wosik during the phone call on the night of 13 August that he would not have complained if he knew it was him and he denied telling Mr Wosik he intended to withdraw his complaint. I have no reason to doubt Mr Chand's evidence. Perhaps, Mr Wosik had misunderstood him.

93 Given this was a serious matter, I am reminded of what the High Court said in Briginshaw v Briginshaw (1936) 60 CLR 336, at pages 361 and 362: ...The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

In balancing the forgoing considerations, and because this matter involves a dismissal for serious misconduct, I am unable to positively conclude that the respondent has satisfied the onus it bears in establishing the conduct took place. Accordingly, the Commission cannot positively conclude, given the state of the evidence and, on the balance of probabilities, that Mr Wosik did tie off the noose to the roof of the forklift. 94 However, even if Mr Wosik did not tell the whole truth concerning his role in the incident, it does not necessarily mean that such a finding would be fatal to his claim for the reinstatement of his contract (if he was otherwise entitled to such relief). In this respect, I refer to the following passage from Bankstown City Council v Paris (1999) 100 IR 363, where the Full Bench said at page 369: On the other hand, if Mr X's assertion that Mr Paris was present on the particular occasion was accepted (and we do not consider it was), it does not follow that thereby Mr Paris' evidence otherwise is necessarily to be rejected. The Council cited before us as authority for the proposition that the failure to resolve this conflict amounted to a failure to exercise jurisdiction, the judgment of Wright J of the Supreme Court of Tasmania in Mills v. Industrial Fish Tasmania Pty. Ltd ((1993) 49 IR 416 at 429-430) where his Honour referred to the judgment of Gray J in Wheeler v. Philip Morris Ltd ((1989) 32 IR 323 at 340): "There is no general principle that a party to court proceedings who fails to tell the truth is bound to lose, and to lose completely, on that ground. Deliberate falsehood on oath is punishable separately as a criminal offence, and not by deprivation of rights which exist otherwise. A court is bound to find the facts as best it can according to the evidence before it. There can be no mechanical process of finding every aspect of a case against a party who has refused to be frank with the court in some respects. This is not to say that the court condones evidence given otherwise than in accordance with an oath or affirmation. It is simply to draw attention to the function of a court in a civil case. It is true that there are some remedies, notably equitable ones, which may be denied to a party otherwise entitled to them on the ground that that party has failed to approach the court in a conscientious manner. For the most part, however, parties will not be deprived of remedies to which they are otherwise entitled, even if they are found to have failed to reveal the whole truth." 95 In any event, as I said earlier, I am unable to reconcile the evidence such as to make a positive finding that Mr Wosik had tied the noose to the roof of the forklift and I am 'reasonably satisfied' that he did not do so. Was Mr Wosik's dismissal 'harsh, unreasonable or unjust'? 96 The meaning of this expression is found in the oft quoted authority in Byrne v Australian Airlines Limited (1995) 185 CLR 410, at page 465: ...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 97 Having concluded, as I have, that the respondent has not been able to discharge the onus it bears in proving the allegation against Mr Wosik, it follows that I also make a finding that his summary dismissal was 'harsh, unreasonable and unjust'. It was particularly 'harsh' given Mr Wosik's:

e) genuine expectation of continuing his contract until retirement;

g) otherwise good record of service, as Mr McCracken's reference demonstrated. 98 Notwithstanding this finding, I would made the following four observations of the evidence. Firstly, whether the respondent displayed its bullying and harassment or occupational health and safety policies in the workplace and whether the drivers had received training about appropriate behaviour in the workplace, does not, in my view, materially advance Mr Wosik's case very far. It did not require a displayed policy for any reasonable person to know that what he did was wrong and inappropriate. The fact that Mr Wosik apologised, further demonstrates that this must be so. He knew what he did was wrong and hurtful and he did not need a manual or written policy to tell him so. 99 Secondly, I do not consider that Mr Wosik was dismissed as a means of saving money in the context of the discussions about redundancies. I accept there were two discussions about redundancies in July 2009. However, Mr Clode took a decision based on his view as to the seriousness of the incident. It simply does not follow that it was a convenient means of getting rid of a driver without paying redundancy. In any event, it made no sense for the respondent to make Mr Wosik redundant, when his was the only truck with a tautliner and after his termination the respondent had to source a tautliner from elsewhere. 100 Thirdly, it cannot be of any assistance to the respondent's case that Mr Wosik would have, or should have, known the forklift was the one usually driven by Mr Chand. The fact was that the forklift was not exclusively used by Mr Chand, as Mr Hoggerty's use of it on the day plainly demonstrated. Moreover, it was left with the keys in the ignition so anyone could use it, or move it out of the way. I accept Mr Wosik's evidence that when standing the forklifts side by side the difference would appear to be obvious, but when viewed individually they do not appear to be different. Even so, Mr Wosik may not have given any thought at the time, as to whose forklift it was. 101 Fourthly, I accept Mr Wosik's contrition and apology were genuine and that he meant to cause no offence or hurt to Mr Chand or anyone else by his actions. Was there a denial of procedural fairness? 102 In my view, the respondent's handling of Mr Wosik's termination was less than satisfactory. It must call into question whether he was denied procedural fairness, such as to warrant a finding that the termination of his contract was procedurally unfair. It seems to me that there was an unseemly and indecent haste in investigating Mr Wosik's guilt and deciding to summarily dismiss him. It all took around 24 hours. It may be said that the CCTV footage was decisive (although I disagree). However, that does not immune the respondent from adopting a fair and reasonable process before terminating Mr Wosik's contract. Perhaps Mr Clode was anxious to be seen to be acting promptly and decisively, particularly in the face of Mr Chand's insistence that something must be done or he would go to the Police. Even so, the rush to termination, raises real concerns, in my mind, that Mr Wosik was not given an appropriate and reasonable opportunity to properly consider, and cogently respond to the allegation, particularly given some limitations with the English language. In addition, I am concerned with three other aspects of the process. 103 Firstly, Mr Wosik was entitled to know the nature of the allegations against him before the disciplinary meeting. I do not consider it was good enough that Mr Wosik had to be told by Mr Crisp or that Mr Clode simply directed him to a disciplinary meeting without telling him what it was about. This was a denial of natural justice. 104 Secondly, it was somewhat disingenuous for Mr Clode to ask Mr Wosik to give him an explanation for his conduct. The fact that Mr Clode could not think of one in the witness box, makes it obvious that it would be difficult, if not impossible, for anyone to give a satisfactory explanation for such conduct. Indeed, I cannot think of one, except perhaps for some medical aberration. All Mr Wosik could do was to plead for his job, having regard for his personal and economic circumstances and cite his long period of service. 105 Thirdly, both Mr Wosik and Mr Stone said that Mr Clode had made up his mind to dismiss Mr Wosik and Mr Crisp the night before the disciplinary meeting. Mr Clode strenuously denied telling Mr Stone the day before or telling Mr Wosik at the disciplinary interview that he had made up his mind (to terminate the contract) the night before. The following extract from Mr Clode's cross-examination is important:

Q. You agree that the reason you rang Keith Stone is there was a strong or good possibility that Eddy was going to be summarily terminated next day? A. The purpose of the phone call was to inform him of the disciplinary meeting and that we would be comfortable if he was required to attend that meeting, for him to attend that meeting.

Q. I put it to you the reason you rang him is because you intended to summarily terminate Mr Wosik the next day and you wanted to try and soften the blow with the union; I put it to you? A. No.

Q. Mr Stone, after you had this telephone conversation, Mr Stone rang you back; is that correct? A. Yes he did.

Q. When he rang you back he suggested maybe you should consider suspending Eddy's - thereafter the substance, the second call - A. - Yes, Mr Stone did suggest it was better if we suspended Mr Wosik as opposed to dismiss him. I responded with, we have the meeting tomorrow morning. Let Mr Wosik have an opportunity to explain his actions and we will make a decision then.

Q. Suspending someone is lesser outcome than summarily terminating them; would you agree with that proposition? A. Yes.

Q. So you would agree that the fact he rings you back second time indicates that you gave Mr Stone the impression that you were going there was a strong possibility you would terminate Mr Wosik the next day. You would agree with that suggestion? A. I couldn't comment on what Mr Stone's impression was. I can only comment on what I said. 106 It seems curious why Mr Stone would ring Mr Clode back and ask for Mr Wosik to be suspended, rather than being dismissed, if Mr Stone was not already aware, or had the clear impression, he was to be dismissed. I also note that Mr Clode did not refer at all to the second phone call from Mr Stone in his filed statement. 107 Nevertheless, giving Mr Clode the benefit of the doubt, and even if he did not actually use the express words that his mind was made up, I believe he had conveyed a very clear impression that termination was the likely result of the disciplinary meeting the next day. That being so, I consider that Mr Clode either deliberately, or unintentionally conveyed the message that termination was to occur before Mr Wosik had a chance to explain himself. This too, was a denial of natural justice. Appropriate remedy 108 There can be no doubt that the reinstatement of a contract under s 314 of the Act, is the primary remedy in circumstances where its termination, and following the Commission's inquiry, is found to be unfair. I find that the termination of Mr Wosik's contract was unfair, both substantively and procedurally. He is entitled to the primary remedy of reinstatement. There is no basis for a conclusion that Mr Wosik's reinstatement would be impractical. This was a one-off, isolated incident in a long, relatively blemish free period of service. Mr Chand's evidence was that he could work with Mr Wosik again. I have also had regard for the glowing reference provided to Mr Wosik by the Depot Manager, Mr McCracken. I do not believe this reference can be so easily ignored by Mr Clode asserting that it was not the respondent's position. In my view, Mr McCracken was perfectly positioned to attest to Mr Wosik's work performance and ethics. 109 However, in view of the understandable concern of Management that reinstatement would send the wrong message to the workforce, I do not intend to make an order for lost remuneration. That said, I do not consider that any reasonable person would regard this decision as condoning such conduct and I wish to make it abundantly clear that I do not. As I said, I do not propose to order any compensation for lost remuneration to Mr Wosik. This, I think, will be a sufficient penalty such as to demonstrate that Mr Wosik's admitted conduct will not be compensated for, or rewarded by payments of monies for time he did not work. I have also taken account of the amount of around $17,000 Mr Wosik has earned during the period since his contract was terminated. ORDERS 110 Pursuant to s 314 of the Industrial Relations Act 1996, the Commission orders that:

The contract of carriage between Owens Transport Pty Ltd and Wosik Transport Pty Ltd is to be reinstated within 14 days.

The time between the termination of the contract of carriage between Owens Transport Pty Ltd and Wosik Transport Pty Ltd (14 August 2009) and the date of the reinstatement of the contract shall be treated as a continuous engagement.

There shall be no orders for compensation for lost remuneration.

These proceedings are concluded. Peter J Sams, AM Deputy President

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.

Industrial Relations Act 1991(NSW)

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