I have listened carefully to the submissions made by both advocates that they would each prefer the matter to be stood over for a period of time allowing them to obtain a transcript and then make some submissions. The enquiries I have made make it clear that, on any basis, that will mean that the submissions are not heard, let alone a decision handed down, until 2016.
I have an obligation under s.163 of the Industrial Relations Act to deal with matters expeditiously and I also have obligations, as do the parties, under s.56 of the Civil Procedure Act 2005 to take every step that would result in a quick and cheap resolution of proceedings.
That of itself means nothing if it is not possible to form a view about the case, but the position here is this; I have formed a very clear view about this case on the evidence that I have heard. The evidence is entirely fresh in my mind. I am aware of the law applying to this particular kind of application and I have formed a view about a part of the case. That is to say, I have formed a view about the way in which the case should be determined, save for one aspect of it, on which aspect I will hear the parties.
This is an application by the Transport Workers' Union, New South Wales branch, on behalf of its member RRA Enterprises Pty Ltd in respect of a contract of carriage between that company and Corporate Express Supply Chain Pty Ltd trading as 'Staples'. I have heard the evidence in the matter and I have formed a view about the proper disposition of a part of the matter and I propose to now give on the record a short ex tempore judgment setting out my decision as to the disposition of the first part of the matter.
The first thing to be considered is whether the necessary jurisdictional prerequisites are met for an application before the Commission. In this case, they are. There was a contract for carriage between the applicant and the respondent, an independent contractor agreement, and, secondly, that contract of carriage has come to an end. The contract of carriage was, in fact, one under which the applicant in the form of its principal Mr Moghaddam would drive goods sent by Staples, to use that short form of the respondent's name, as I will throughout this decision, to its customers from Staples' depot to various delivery points. That is what RRA Enterprises and its principal Mr Moghaddam were to do under the contract.
I touch on the Commission's jurisdiction with respect to contracts of this kind and the reinstatement of them. The Commission may, subs.314 (1) of the Act provides, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or contract of carriage that has terminated. Subsection 4 provides a step that is to be taken by the union on behalf of a contract carrier. That has been done. The Commission is provided with this statutory power, that if reinstatement of the contract of carriage which is the primary remedy is impracticable, monetary compensation can be awarded.
In this case, the submission was that reinstatement of the contract of carriage was not sought. I would not have granted it in any event but it is not sought, and so I formally determine that I will not reinstate the contract of carriage.
Section 314 of the Act does not in terms provide guidance as to the circumstances in which the Commission may exercise powers under that section. However, the jurisprudence of this Commission has developed on the basis that the power may properly be applied in circumstances where there has been an "unfair" termination of a contract of carriage, as that term is used in Part 6 of the Act, which is not the part in which this section finds itself. That approach to the jurisprudence finds support in the decision of the Commission in Cherry v Allied Express Transport (1997) 73 IR 305 at 309. That decision has been followed by the Commission without challenge in a number of cases, including particularly and recently Transport Workers' Union of New South Wales on behalf of Lynch v Nationwide Transport and Logistics [2012] NSWIRComm 15, a decision of the then President Boland J.
I do not agree. In my view the power to award compensation is, on the plain words of the statute, unfettered and does not depend on any preliminary finding that the termination was "unfair". Indeed, in my view that limits improperly the range of circumstances in which the Commission may exercise its discretion to reinstate a contract or alternatively award compensation.
However, given the decision in Lynch and those that preceded it, my own personal view of the way in which the legislation should be properly read, so far as my view does not accord with the jurisprudence established by the Commission, is necessarily subordinate to that established jurisprudence. I will apply the jurisprudence of the Commission as established.
Given that, I approach this matter on the basis that the grounds on which the Commission would consider ordering reinstatement or ordering compensation would be analogous to those that would be regarded as leading to that outcome under Part 6 of the Act. That is to say, that the contract of carriage was unfairly terminated.
Here the respondent company brought the contract of carriage to an end for one reason. That is, that on a particular day the principal of the company RRA Enterprises Pty Limited, Mr Moghaddam, was observed to be driving a forklift and did not have a licence to drive a forklift. As a matter of fact, that is correct. He did drive a forklift and he did not have a licence to drive a forklift.
Evidence was advanced in the proceedings going to the proposition that the principal of RRA, Mr Moghaddam, was a difficult driver with a less than entirely satisfactory performance. However, nobody says before this Commission that the termination was for any reason other than the express reason given by the respondent and stated again very clearly by Mr Barlow in his evidence. I proceed on the basis that the question of fairness is to be decided entirely on the stated reasons for the termination given by the company. Nobody asks me to consider the matter any differently. I do not have any justification for so doing and I do not.
Mr Barlow's letter of 19 August 2014 says expressly this. Mr Moghaddam admitted to knowingly driving a forklift at the Erskine Park facility with the knowledge that he did not hold a valid or current forklift licence. It was then said that this was a serious safety breach and Mr Barlow then went on to say,
"given the significant safety risk posed by your actions, the respondent has decided "immediately to terminate the independent contractor agreement between us".
Safety is a fundamental matter in any workplace. A company is not only entitled to have enforceable safety procedures and policies in place, it must under relevant legislation have those safety procedures and policies in place. Any employee or any contractor who wilfully and knowingly or even recklessly flouts safety provisions and policies of an employer or a principal invites the loss of their contract, whether it is an employment contract or a contract of carriage, and in general the Commission will be unsympathetic to a person who loses their contract because of a deliberate flouting of safety provisions if an application is brought here.
In this case, however, there are some unusual factors. I have said that the contract of carriage is one under which Mr Moghaddam - and I will use his name throughout this decision, as the principal of the party to the contract of carriage - would drive goods in a van or truck sent by Staples to its customers out to various delivery points. That is what he was to do under the contract. He was not required under the contract to drive a forklift. He was not a company employee charged with driving a forklift. The company chose to allow contractor drivers to use forklifts. Precisely why is not entirely clear but that is a choice that the company knowingly made. They even put Mr Moghaddam through a forklift safety course.
Mr Moghaddam used a forklift daily, he says; five times a day, says Mr Daly, the company's witness, in evidence today; daily, says Mr Cuyson. Mr Daly and Mr Cuyson were in the loading dock every day, and I accept their evidence of what they saw. That is to say, Mr Moghaddam used the forklift many times a day. Mr Moghaddam says himself that, and that evidence is consistent. Even Mr Barlow's evidence was that he understood that Mr Moghaddam routinely drove a forklift truck. So it was well known to the company at a range of levels of supervision, up to Mr Barlow who had the power to make and terminate contracts, that Mr Moghaddam did drive a forklift. He did so, on the evidence, for in excess of six years, and he was put through a forklift safety test or course by the company. So the company knew perfectly well for more than six years that Mr Moghaddam used a forklift ancillary to his actual duties under the contract, daily, and in all of that time the evidence discloses that nobody ever once asked to see his licence. Had they asked once, the position would have immediately become clear, but nobody asked to see his licence in six years plus, even though it was well known that he was driving a forklift every day.
That is absolutely extraordinary, in my view. I accept that a person who is using equipment has a responsibility to be licensed and, perhaps even more so than an employee, a contractor who is responsible for taking out his own insurance and providing himself with licences for the work he holds himself out to do. Again, of course, the contract of carriage did not require Mr Moghaddam to drive a forklift. Had it done so in terms, he would have had an obligation to render himself licensed, but it did not.
Here the respondent on one hand says to the Commission: "Our safety policies are so strict that one breach of them, that is, one occasion on which you are detected driving a forklift without a licence, warrants, itself and without more," - which is Mr Barlow's evidence - "the immediate termination of the contract of carriage". The respondent says that and advances that position to the Commission in defence of this application brought against it. However, in the same breath the respondent says: "Our policies are so lax that we have knowingly allowed you to drive a forklift multiple times a day for six years and never once bothered to check your licence, to actually see your licence."
In my view, it is the company's responsibility to view the licences that a person brings to a contract, whether a contract of employment or a contract of carriage. The evidence was, in this case, from Mr Barlow, and again I accept it, that there is a check done on contractors to make sure that they have their driver's licences, their insurance up to date and the other things they bring to the contract. It is accepted that the principal contractor is required to oversee the people that work for it, whether as contractors or employees, to be sure that they are appropriately licensed. Ultimately, the responsibility lies there. It does not exonerate individual employees and contractors from a responsibility to be licensed, but the company accepts that ultimately it must check for itself. Here, this was not done.
That is so even when, on Mr Barlow's evidence, the issue of licences was actively drawn to the company's attention by the changeover in licence rules and the moratorium on old licenses of which Mr Barlow and other members of the company were aware. Again, when licences were required to be shown for the new cards to be issued after 1 June 2014, nobody asked to see Mr Moghaddam's licence. I am told by Mr Barlow, and I accept the truth of his evidence, that there were random checks done. But in six years that random check never included Mr Moghaddam, even though he used a forklift every day and, even though they put him through a forklift safety course, they did so without asking to see his licence.
At the changeover to the new forklifts on 1 June 2014, people were required to present their licence to get access. Every day after that, on the unchallenged evidence, Mr Moghaddam went on using a forklift truck; that went on for two and a half months. It was not just a matter of swiping him on to the forklift; it meant that every day, on Mr Daly's evidence, which I accept on this point, either Mr Moghaddam or somebody acting for him had to, on the keypad set into the forklift, answer the ten questions required, on Mr Barlow's evidence, for the forklift to operate. So that process was gone through every day for two and a half months without anyone actually saying, "We ought to carry out our responsibility to see if this man has in fact got a licence. Let us see it."
That, as I say, goes together with the fact that the company actually put Mr Moghaddam through a forklift safety course in its premises. I do not make the finding that Mr Daly did the test for Mr Moghaddam. A serious allegation of that kind needs to be made out at a level of proof such as that set out at s.140 of the Evidence Act, routinely referred to as the Briginshaw level of proof. In my opinion it is not made out, and that has an effect on other aspects of this matter that I will come to.
The point is this. Safety is important, fundamentally important. Driving a forklift without a licence is a safety breach. Absent anything else, it is a breach that warrants disciplinary action, whether of a contractor or an employee. There is no doubt about that. The first time it was done in circumstances where the company had not troubled to check a man who had used a forklift daily for over six years, in my view, does not warrant the immediate termination of the contract. To put it another way, it is very difficult for the company to persuade this Commission that driving a forklift without a licence on one occasion, in circumstances where the company has actively put the person through a forklift safety course and has actively each day for the last two and a half months before this occasion swiped him onto a forklift to use, is so gravely serious that it warrants and substantiates the immediate termination of a contract of carriage.
Mr Daly's evidence was that the company knew that Mr Moghaddam had a key to the old forklifts. There is Mr Zohorie's unchallenged evidence, about which he was not required for cross-examination, at paragraph 18 of his statement: "Often people without licences would operate forklifts with the keys in place". There is Mr Manning's evidence at paragraphs 10 and 13 of his statement to a very similar effect. Mr Manning, who was also not required for cross-examination, says:
"It was common for unlicensed drivers to borrow the keys of licensed drivers and operate the forklifts. Sometimes the keys were left in the ignition, leaving a forklift for anyone to use as required."
Then he goes on to say:
"To my knowledge, no driver other than Mr Moghaddam has been warned or counselled about operating a forklift without a licence, although,"
he says,
"the practice of borrowing keys or cards by unlicensed drivers continued after the introduction of the new forklifts."
In that context, the termination of the contract of carriage for an incident of a driver or contractor, in this case Mr Moghaddam, driving a forklift without a license is not justified. It is a disproportionate response to the single act committed by Mr Moghaddam and it renders the termination unfair.
Mr Moghaddam is not without fault in this matter. Firstly, he did not have a licence, there is no evidence that he ever had a licence, and that is not acceptable. He ought not to have been driving a forklift without a licence. There is also the evidence of Mr Daly that he asked Mr Moghaddam if he had a licence and Mr Moghaddam said that he did. Mr Daly was not shaken on that evidence, and I am bound to accept it. Balancing that, of course, there was some justification for Mr Moghaddam's belief that he was entitled to, on the Staples premises, as he said, drive a forklift. That is because he had been put through the forklift test by the company and had passed it, and he had been allowed to drive the forklift for years after that test without anyone taking issue with it. But he is at fault in not having a licence, in telling Mr Daly when he was asked that he did have a licence, and in another matter as well, and that is this.
When the matter was detected, in my view Mr Moghaddam was not entirely candid with the principal contractor, with Staples. He told the company he used to have a licence but it had elapsed. There is not a shred of evidence he ever had a licence, and I do not accept that he did have a licence, and I do not accept the excuse that he advanced, that Mr Daly did the test for him. I accept that he did the test and that gave him a sense of entitlement to drive within the Staples premises. He was to a real degree justified in that view but I do not accept that Mr Daly did the test for him.
I do not see, I observe in passing, that Ms Sourlas is at fault. I think in her efforts to assist her member and deal with the company she went with what material she had in a rushed state of mind.
The position then is this. The termination is one which was carried out in a manner which was unfair. There is no question of restoration of the contract but, in my view, compensation should be ordered. Compensation has to be considered pursuant to the statutory regime which considers what has been earned or what could have been earned by a contractor, the Act so provides, and in my view there is disentitling conduct by Mr Moghaddam in the way he conducted himself when detected.
Employees and contractors have an obligation to be candid with their principal contractor and employer. I went to some length to set this out in a decision called Bibby v RailCorp [2013] NSWTAB 4. I will not repeat all that here but in my view there is no doubt about this. If an investigation is being carried out by an employer, the more so if it is to do with safety, there is an absolute obligation on every employee, even the one being investigated, to be candid. Once an employee begins not to be candid or chooses not to be entirely candid with the employer, then that has an effect upon the relationship. Further, it has a disentitling effect on any discretionary award that may follow. I make it clear, in my view it is not a sufficiently disentitling effect to mean that no compensation will be ordered but it is one that in my view will bear upon my discretion.
I will hear the parties as to compensation before issuing a decision on that matter.
PETER NEWALL
Commissioner
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Decision last updated: 18 November 2015
Parties
Applicant/Plaintiff:
Transport Workers' Union of New South Wales (on Behalf of RRA Enterprises Pty Limited)
Respondent/Defendant:
Corporate Express Supply Chain Pty Limited Trading as Staples