Transport Workers Union of NSW o/b WRT Transport Pty Ltd v Star Track Express Pty Ltd

Relevant law

1. Section 314 gives the Commission power to make a contract determination. No specific criteria are set out in the section, but the Commission has repeatedly held that the powers under s.314 may be exercised, as a matter of discretion, where, relevantly, the termination of the contract was 'unfair': Cherry v Allied Express Transport (1997) 73 IR 305 at 309, Transport Workers' Union of New South Wales (on behalf of TWS NSW Pty Ltd and Ready Transport) and Smartskip (NSW) Pty Ltd [2008] NSWIRComm 55.
2. I observe that on the plain words of the statute the power to reinstate a contract or to award compensation is unfettered and does not depend on any preliminary finding that the termination was 'unfair'. Indeed, in my view any requirement for such a finding limits improperly the range of circumstances in which the Commission may exercise its discretion to reinstate a contract or alternatively award compensation. The section is not only enlivened when a party terminates a contract; it is available in relation to a contract which has concluded by effluxion of time: Deltec International Courier Pty Limited v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341.
3. However, given the decisions in Lynch and those that preceded it, my own view of the way in which the legislation should properly be read, so far as that 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.
4. Even so, I do not see that, in the absence of an express statutory provision inserted by the parliament, the consideration of whether a termination was "unfair" for the purposes of s.314 should be further defined by such terms as 'harsh, unjust or unreasonable', terms which the parliament has elsewhere chosen to employ under the Act but not here.

The events of 5 May 2016

1. In my view much of the dispute as to the factual details of the events of 5 May 2016 falls away in the face of the one matter of real significance which must be considered.
2. On Mr Thompson's evidence, what occurred in relation to the single controversial parcel pickup on that day can be summarised in this way. There was a contest by the respondent about some details, but in my view it is unnecessary to resolve those differences, and I am prepared to proceed on Mr Thompson's account of the pickup.
3. At about 2:15 pm on 5 May 2016, he completed his last scheduled delivery, in Lane Cove. That permitted him to take his lunch break. He drove to the Rosenthal Avenue carpark in Lane Cove, parked, ate a sushi lunch, and went to the gym in Longueville Road. He necessarily changed out of his uniform into gymwear. He competed a gym session, and about 3:15 returned to his vehicle to find that he had been allocated an ad-hoc pickup from the Chemist Warehouse Lane Cove.
4. The instructions concerning this ad hoc pickup included that he take a consignment note with him, and that it was an overnight service to be delivered the next day. Mr Thompson did not have any consignment notes in his vehicle. Accordingly, as he could not complete the pickup without a consignment note, he recorded job as 'futile' in the scanning system.
5. Having 'futiled' the job, he then, he gave evidence, went to the Chemist Warehouse to advise them that he would not carry out the pickup. He did not change back into his uniform before he went there, because time was of the essence. When he got there he was told that the pickup was urgent. He then, he said, agreed to take the article without a consignment note, on the basis that he would collect a note from the depot and bring it back the next day.
6. That conversation was disputed in its terms by the employee of Chemist Warehouse to whom Mr Thompson spoke, who gave evidence before the Commission, but what is undisputed is that Mr Thompson took a parcel from Chemist Warehouse, Lane Cove. He can be seen on CCTV footage taking the parcel.
7. It may seem curious that Mr Thompson 'futiled' the job before going to the pickup premises, and that having changed his mind and collected the item he did not inform the respondent that he had after all done so, but it is not possible to draw any firm conclusion about those matters and I do not do so.
8. On one view, Mr Thompson was providing outstanding customer service in taking a parcel for which there was no consignment note. On another view, he was at fault in not having consignment notes in his vehicle, and for that reason he was bound to take the parcel and do what he could to get it delivered.
9. On the respondent's evidence, Mr Thompson was at fault in collecting a parcel without a consignment note, which I am satisfied on the evidence he had been trained not to do. I do not, however, regard that as a matter of substance in determining this application.
10. From the point where Mr Thompson actually picked up the parcel, which was in the form of a blue satchel, the accounts of what occurred, and the inferences to be drawn about what must have occurred, differ radically.
11. What is known is that the parcel was not delivered to the addressee. It was not found in the respondent's warehouse despite a search, and has never been seen again. I am satisfied on the evidence that a thorough search was made on the respondent's electronic systems without finding in them any trace of the parcel beyond the initial instruction to Mr Thompson to make the collection.
12. I here observe that much was made of the fact that the pickup involved a Schedule 8 drug. It did, but it must be pointed out that the Schedule 8 drug in question was contained in small amounts in two bottles of cough mixture, one of which had leaked. As a prescription medicine it had a value of a few dollars. I take judicial knowledge of the fact that it was unsaleable on the black market.
13. But there is a further curious aspect to that matter. On Mr Thompson's evidence, he did not know that the pickup involved a dangerous drug before he attended the Chemist Warehouse premises. Certainly the job notification send to him via his scanner did not show that detail. On the evidence of Ms Patel, the employee with whom he dealt there, Mr Thompson told her that he was there to pick up a 'DD credit for Sigma.' There was a three-minute telephone call between Mr Thompson and the respondent's radio room at the time of the pickup. No firm evidence was given of that conversation, and it is possible, although not obvious, that in that conversation lay the answer to the differing evidence on this point. I am not required to resolve it, for reasons that will become apparent.
14. As I say, the parcel Mr Thompson collected from Chemist Warehouse was not delivered to its addressee and has never been found. No record of it exists on the respondent's record system. Mr Thompson for his part maintains that he scanned the parcel into the system, the fuller details of which process which I turn to shortly, and physically delivered the parcel to the respondent's depot.
15. In my view, in addressing the application presently before the Commission the single critical matter to be resolved on the evidence is this: did Mr Thompson deal with the parcel he collected from Chemist Warehouse in the way in which he told the company, and the Commission, he did, or did he not?
16. I say that for this reason. WRT, through Mr Thompson, had an unblemished record of service over more than 8 years and several contracts with the respondent. It might well be thought to be 'unfair,' to use the term that has emerged from the Commission's jurisprudence, to terminate a contract for one error in 8 years' service, if that is what occurred. That might be thought to be the more so in circumstances where the manner in which the termination was effected was peremptory and offered Mr Thompson little chance to assemble his case. Indeed, on the respondent's own evidence it did not give Mr Thompson any specific and concrete reason why his company's contract was being terminated, although in his evidence Mr Thompson disputes this.
17. If Mr Thompson's account is accepted, then he has done nothing worse than attend a client whilst not in uniform, failed to carry, as he ought to have done, a supply of consignment notes in his truck, and accepted a parcel for pickup without a consignment note, contrary to his training and instructions. On his account the loss of the parcel and of any record of its existence is simply inexplicable, not his fault, and the lack of any record of it is due to a series of coincidences. No doubt the respondent would have something to say to Mr Thompson about those matters, but, even given all that, it might well be thought that termination of the contract for one such occurrence after eight or more years of unblemished service could be called 'unfair'.
18. If, however, Mr Thompson has not given a faithful account of his actions to the respondent, to whom he owed contractual duties, and not given a faithful account of his actions to the Commission, then that is conduct which is disentitling conduct for a party coming before a tribunal seeking discretionary relief, even if on a general view of the facts it might have been available to the party: Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16; Marroun v State Transit Authority (2016) 259 IR 122 at [106], upheld on appeal. To put it squarely, if Mr Thompson's account of what happened is not able to be accepted, then the Commission will not be moved to restore the contract.

The steps taken after the parcel was picked up

1. Mr Thompson's evidence of what occurred after he collected the parcel is as follows.
2. Having collected the parcel, he walked back to his van, placed the parcel within it, changed back into his uniform and continued with his afternoon pickups. He did not deviate from his usual routes for collection of items. The GPS data from his scanner supports that contention.
3. At about 5:00 pm he attended Arrow Scientific at Gladesville to pick up items. That was to be his last pickup for the day.
4. Mr Thompson knew the proprietor of Arrow, a Mr Petrin. Mr Petrin gave evidence before the Commission that Mr Thompson asked him for a consignment note and he gave him a blank note from a bundle in his possession. I accept Mr Petrin's evidence as truthful. It is not perfectly clear from Mr Petrin's evidence whether it was a Star Track consignment note or an Australian Air Express consignment note, but Mr Thompson says it was an Australian Air Express consignment note.
5. Mr Thompson's evidence is then that he filled in the consignment note with information concerning the Chemist Warehouse pickup, using the information from his PDA scanner for that purpose. He then scanned the barcode located on the front page of the manual consignment note into this PDA scanner and stuck the note onto the Chemist Warehouse item.
6. I note in relation to this aspect of the matter that I was invited by the respondent, in a note furnished to my chambers after the proceedings concluded, to draw certain inferential conclusions about the reasons Mr Thompson asked for this consignment note and what he did with it. I do not do so and I do not proceed in any way guided by any conclusion I was there invited to draw. That is because the propositions now advanced were not put to Mr Thompson when giving his evidence. He may have offered any number of explanations had he been asked. The principle of fairness that underpins the rule in Browne v Dunn (1893) 6 R 67, even if the rule itself does not in strict terms apply here, operates against my having any regard to the respondent's proposition.
7. Mr Thompson then removed an article sticker from a roll of Star Track article stickers in his van. He did that because, he said, the scanner does not allow a pickup to be completed without having an article sticker assigned to the consignment note. He scanned that sticker.
8. He then removed the 'Finance Copy' from the Air Express consignment note he had filled out with the Chemist Warehouse details, but inadvertently did not remove the 'Sender Copy' that he had told Chemist Warehouse he would return with the next day.
9. He then returned to the depot and unloaded all the items he had collected, including, he says, the Chemist Warehouse item. He handed these items to the receiving section. Having done that he handed in his paperwork for the day to the nightshift supervisor, including the 'Finance Copy' from the manual consignment note he had filled out for the Chemist Warehouse item.
10. The paperwork Mr Thompson handed in, his Driver Claim Sheet, included reference to one, and only one, item which bore a manual consignment note. That item has been traced and was a parcel associated with Woolworths.
11. Mr Thompson's vehicle was inspected by the security guards on leaving the depot; no items were found to remain in his vehicle on departure.
12. On Mr Thompson's evidence, therefore, he delivered to the respondent's receiving section a parcel to which was attached a manual consignment note. He also, separately, physically delivered to the night shift supervisor the 'Finance Copy' of that consignment note. He also scanned the consignment note into his PDA scanner. He attached a manual sticker to the parcel, and he also scanned the manual sticker into his PDA scanner. By oversight he failed to retain the 'sender' copy of the consignment note as he had advised Chemist Warehouse he would do.
13. I am satisfied on the evidence of Messrs Smith, Aickin and Dick that thorough searches have been made of the respondent's physical premises and electronic records. Those searches disclosed the following.
14. The satchel itself was not delivered to its addressee. It has not been found within the respondent's premises. I am satisfied that a proper search was made for it. No record exists of the consignment note being scanned into Mr Thompson's PDA scanner. In that context I note Mr Dick's evidence that the scanning system is not completely foolproof: his evidence was that 'it is extremely rare for a pickup scan not registering at all'. No record exists of the article sticker being scanned into Mr Thompson's scanner. No record exists of either the finance copy of the consignment note, or the image of that finance copy, which I am satisfied was the recording process adopted by the respondent. No record exists of the 'sender' copy which Mr Thompson says he inadvertently left with the manual consignment note. No record exists of the parcel being scanned out to leave the depot the next day, which I am satisfied is the process adopted by the respondent.
15. This is the case in the context of there being no evidence of Mr Thompson's scanner being faulty on the day - every other item he scanned is recorded. I accept the evidence that 0.3% of scans made by PDA scanners misread, although the scans identified by that figure were scans to do with delivery, not pickup. However, the fact is that there is no suggestion of any other faulty scan by that scanner on that day.
16. It is also the case in the context of Mr Thompson's 'Driver's Daily Claim Sheet', a document that he handed to the respondent every evening, containing, as I say above, a reference only to one parcel brought in on a manual consignment note. That parcel has been definitively traced and is not the Chemist Warehouse satchel and it did not bear a number which matched any of the possible numbers on the consignment note which, on Mr Petrin's evidence, he gave to Mr Thompson.
17. I accept that Mr Thompson downloaded the data from the scanner to his Daily Claim Sheet, and that simply recorded, as he said in his evidence, whatever numbers were on the scanner. However, the fact remains that he handed in a daily claim sheet showing one manual consignment note, when on his evidence there were two such parcels, the second being the Chemist Warehouse parcel, and did that in circumstances where a parcel with a manual consignment note was an unusual occurrence.
18. The first conversation that anyone from the respondent had with Mr Thompson about the issue of the Chemist Warehouse pickup after 5 May 2016 appears to have been on 26 May 2106, when he was spoken to by Ms Alexis Arnell. Ms Arnell was employed by the respondent expressly to deal with parcels which were not able to be traced. In that context she telephoned Mr Thompson. Her evidence, which is supported by a short contemporaneous note, is that at that time Mr Thompson did not remember the particular pickup concerned. Mr Thompson, on the other hand, in his statement of !8 November 2016, gives a detailed account of a conversation about the parcel in which, he says, he gave Ms Arnell a short-form version of what he said to the Commission. Ms Arnell denies that the conversation occurred in those terms. Ms Arnell struck me as a witness of truth, although I do accept that memory does fade and that it is not always possible to be confident about a conversation one had some months before. I do not form an adverse conclusion about Mr Thompson's evidence based on these conflicting accounts.

Resolution and disposition of the matter

1. In sum, the position on the evidence is this. In order to accept Mr Thompson's version of events, I have to find that, in relation to one and only one parcel on that day, the contentious lost parcel from Chemist Warehouse, he 'futiled' the job and then picked it up after all, after a conversation denied by the employee of the consignor who spoke to him; that the scan of the manual consignment note on his PDA scanner failed when no other scans that day failed; that the scan of the activity label on his PDA scanner failed when no other scans that day failed; that the parcel itself went unexplainedly missing after he handed it in, with no record of its having been handed in or scanned out appearing on the respondent's records, a search having been made twice for it in the respondent's premises, and the consignee reporting not having received it; that the finance copy of the consignment note (handed to a different person, on Mr Thompson's evidence, to the parcel itself) went utterly missing, without (as is the respondent's practice) any image of it being recorded; and that the sender copy of the consignment note also went missing. And I must find that in circumstances where Mr Thompson's daily driver claim sheet does not record the manual consignment note in relation to the Chemist Warehouse pickup, but does record one other manual consignment note pickup that day.
2. I am simply unable to accept all that. I am compelled to the conclusion that the account Mr Thompson gave the Commission, and also to the respondent, is not a fully accurate one. I accept that the circumstances in which the respondent demanded an explanation from him about the matter were poorly managed and not designed to give him a fair chance to set out his position. However, by the time the matter came before the Commission he had every chance to reflect on the events of the day, with the assistance of experienced and competent solicitors. I regret to say that even with that I cannot accept his account of events.
3. That means that I am not prepared to reinstate the contract of carriage. I am not prepared to do so because I am not prepared to grant what is in practical terms equitable relief to an applicant for that relief whose account of the relevant factual circumstances giving rise to the termination of the contract I am unable, on careful reflection, to accept. I adopt in that regard the principles set out in Gilmore v Allied Air Express, to which I refer above, which draws in turn on Saliba v John Hearder Ltd (1986) 15 IR 36; these were cases decided in the context of s.88F of the Act's predecessor Act and s.106 of the Act, but the principle is directly applicable here.

Order

1. Accordingly, the Order that I make in the matter is as follows: The application brought pursuant to s.314 of the Act by the Transport Workers Union of NSW on behalf of its member WRT Transport Pty Ltd is dismissed.

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