Transport Workers' Union of NSW on behalf of R H Road Tranz Pty Ltd (ABN 61 602 831 130) v StarTrack Express Pty Ltd

What Principles should be applied to applications pursuant to s 314 of the IR Act?

1. In Transport Workers' Union of New South Wales (on behalf of Sidhu Freight Pty Ltd) and Toll Transport Pty Ltd trading as Toll Contract Logistics [2015] NSWIRComm 36 ("Sidhu"), Kite AJ considered the principles to be applied in an application under s 314 of the IR Act stating at [8] - [13]:

"[8] The decision of Peterson J in Cherry v Allied Express Transport (1997) 73 IR 305 ("Allied Express") has been cited with apparent approval by a number of members of the Industrial Relations Commission of New South Wales ("the Commission").

[9] In Transport Workers' Union (NSW) v Robar Enterprises Pty Ltd [2013] NSWIRComm 84; 238 IR 84, Backman J referred to Allied Express and also considered the principle of "no valid reason" which the parties appearing before her sought to import from the federal jurisdiction. In the end her Honour observed at [59]:

"It matters little, in any view, what terminology such as "no valid reason", "unfair", "unreasonable" or "unjust" termination may be invoked in coming to a view about the circumstances of the termination of the agreement under s 314."

[10] Her Honour considered that these concepts were all directed to whether the respondent was entitled to terminate the agreement on the ground(s) relied upon. Backman J did however consider separately the question of whether the termination was harsh "in all the circumstances". In regard to that aspect her Honour referred to dicta from Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union (NSW Branch) [1973] AR (NSW) 231; Electricity Commission of NSW T/as Pacific Power v Crump (1993) 48 IR 296 and Electricity Commission of NSW t/a Pacific Power v Nieass and ors (1995) 81 IR 46.

[11] More recently in Transport Workers Union of NSW o/b Kojic v Toll Transport Pty Limited t/a Toll Priority [2015] NSWIRComm 1006 Newall C summarised the approach at [5]-[6]:

"[5] The parties correctly submitted that s.314 does not in terms provide guidance as to the circumstances in which the Commission may exercise powers under the Section, but agreed 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. That approach finds support in the decision of the Commission in Cherry v Allied Express Transport (1997) 73 IR 305 at 309, followed by the Commission without challenge in, inter alia, 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.

[6] I approach the matter on the basis that the grounds on which the Commission would consider ordering the reinstatement of a contract of carriage, or alternatively compensation, would be analogous to those which would be regarded as leading to that result under Part 6 of the Act; that is, that the termination of the contract was unfair. I do not see that it is necessary to gloss that term further, and in the absence of an express statutory provision inserted by the parliament I do not see, contrary to the Applicant's submissions, that it is required that unfairness for the purposes of s.314 be further defined by such terms as 'harsh, unjust or unreasonable'."

[12] While the statute clearly provides for the exercise of discretion, as noted by many members of the Commission, the statute provides no specific criteria by which that discretion is to be exercised. In that sense the exercise of discretion is unconfined. That does not mean it can be exercised arbitrarily or in an unlimited way. In such circumstances the exercise of discretion is informed by the context, that is, the subject matter, scope and purpose of the IR Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; 144 CLR 45 at 49-50; Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746 at 757-8; and Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505.

[13] In my view the approach of Peterson J in Allied Express represents an application of these principles. The other decisions to which I have referred, although using slightly different language, do likewise. I will approach the resolution of this matter bearing these statements of principle and their practical application in mind."

1. His Honour's approach was reflected in the Applicant's submissions and StarTrack did not take issue with these submissions. I will apply the same approach adopting a consideration of relevant matters set out at s 88 of the IR Act.

Is the Commission prohibited from ordering reinstatement due to the expiry of the 2019 Contract and the changed terms and conditions now provided to contract carriers engaged by StarTrack?

1. StarTrack submits that a threshold issue before the Commission is whether it can reinstate the 2019 Contract not whether it should make a new contract carrier agreement on similar terms. StarTrack says that regardless of the merits of the 2024 Application, the Commission cannot award reinstatement pursuant to s 314(1) of the IR Act as the 2019 Contract has expired and the terms and conditions the Applicant received under the 2019 Contract are no longer available.
2. Relying on Deltec International Courier Pty Limited v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341 at 354 (Deltec), StarTrack says that the term reinstatement "...in itself expressly and necessarily implies as a concept the ability to notionally restore the position as existing at the point of termination of a contract."
3. StarTrack submits that the 2019 Contract cannot be "reinstated" in the sense of restoring the position as existing at the point of termination of the contract, and it follows that the Commission cannot order reinstatement. This arises from the terms of the relief on which the Applicant has conducted its case, and it would be procedurally unfair to StarTrack for the Commission to entertain a case put on a different basis.
4. StarTrack says that the Applicant has been legally represented at all times, and the 2024 Application claimed "...a contract determination of reinstatement",[5] and set out the terms on which he said the determination be made as follows:

"That the contract of carriage which existed between Mr Rashpal Singh t/as RH Road Trans Pty Ltd 61 602 831130 (the Carrier) on the one hand and Australian Postal Corporation (Australia Post) on the other hand be reinstated along with compensation for loss of income between the date of termination and the date of reinstatement calculated at $2,660.90 (gross) per week."

1. StarTrack submits that this is a threshold issue because Deltec says it is only if reinstatement of the 2019 Contract is available, and the Commission then decides that reinstatement of the 2019 Contract is not appropriate, that the Commission may order an alternative remedy, such as compensation.
2. The Applicant accepts that the 2019 Contract expired on 13 November 2024 and accepted that contract carriers are now engaged under a piece/incentive rate and not on an hourly rate as under the 2019 Contract. Mr Singh stated that he would be willing to work on a piece rate if it "was reasonable and financially viable".[6]
3. Mr Foran submitted that StarTrack has a standard form agreement that applies across the contract carriers in its business and which is negotiated with the TWU. Consequently, the TWU knew, at the time of commencing the 2024 Application, that the terms of the 2019 Contract were no longer available. Relying on Deltec and the TWU's knowledge of the terms of the current contract carriers agreement, Mr Foran says that the lack of specificity in the 2024 Application about what contract should be reinstated means reinstatement is unavailable to the Applicant.[7]
4. Deltec was a case brought pursuant to s 680(3) of the Industrial Relations Act 1991 (1991 Act). At the time that Deltec was heard and determined, the 1991 Act provided:

(3) The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of carriage that has terminated.

1. The 1991 Act did not have provisions equivalent to subsections 314(2) and 314(3) which are set out above at [28]. The text of s 314 of the IR Act, and particularly these two sub-sections, does not support StarTrack's submission that the 2024 Application is confined to reinstatement on the precise terms of the 2019 Contract. Subsection 314(1) empowers the Commission to "make a contract determination with respect to the reinstatement of a ... contract of carriage that has terminated." Subsection 314(2) clarifies that "reinstatement" includes "re-engagement under a similar contract". The language "includes" in subsection (2) indicates that this subsection is definitional rather than conferring a separate power. Further, subsection 314(4) addresses only the impracticability of reinstatement and does not refer to re-engagement. This omission is consistent with this interpretation because re-engagement is encompassed within reinstatement; re-engagement under a similar contract does not require a distinct pleading as it is a subset of reinstatement as defined by subsection (2).
2. The Commission has decided a number of cases consistent with the interpretation of the text of s 314 that I have set out in [39]: see Ryan v TNT Australia Pty Limited [2004] NSWIRComm 1107 at [11], Field v Toll Transport Pty Limited [2005] NSWIRComm 1148 at [4] and [5], K-Dan Pty Limited v Downer EDI Works Pty Limited [2009] NSWIRComm 1020 at [6], Moulds v Toll Transport Pty Limited, trading as Toll Priority DX Solutions [2011] NSWIRComm 1032 at [5], and Transport Workers' Union of New South Wales (on behalf of Richard Hendrie operating as MRA Transport Pty Ltd) and Boral Resources (NSW) Pty Ltd [2017] NSWIRComm 1012 at [120]. Relying on the text of the statute, and supported by these authorities, I do not accept that the 2024 Application is restricted to reinstatement on the terms of the 2019 Contract.
3. I accept that there may be a factual contest about what is a "similar contract". StarTrack takes issue with the fact that the 2019 Contract is no longer available and that the method by which contract carriers' remuneration is calculated has changed. Given the statement by Mr Singh that he would be willing to work on a piece rate if it "were reasonable and financially viable", I am satisfied that in this instance a contract to do the same work with the remuneration being calculated on the basis of piece rates may be a similar contract for the purposes of s 314 of the IR Act.
4. Regardless of the manner in which the Applicant has set out its case in the 2024 Application, the application of s 314 is a matter for the Commission to interpret consistent with the principles of statutory construction and relevant precedent. I do not consider there to be any procedural unfairness as a result of my statutory interpretation concluding that reinstatement under s 314 of the IR Act includes re-engagement under a similar contract particularly as my interpretation is consistent with the authorities referred to in [40].
5. Further, the Commission is not a court of strict pleadings and matters often evolve when submissions and evidence are filed and read or tendered. If the Applicant's case for reinstatement or re-engagement was not clear to StarTrack prior to the hearing, StarTrack had sufficient opportunity at the hearing to make an application to address any asserted procedural unfairness and elected not to do so.
6. The 2024 Application does not fail on the basis that reinstatement may be, or as StarTrack asserts must be, on terms other those of the 2019 Contract.
7. I now turn to the circumstances of the termination of the contract of carriage and the unfairness alleged in the 2024 Application.

Do the asserted grounds for termination have a basis in fact?

1. StarTrack submits that in Schedule A to the 2024 Application and in cross-examination at the hearing, the Applicant conceded the key breaches of StarTrack's policies that led to the termination of the 2019 Contract. These included admitting to not signing the FFD declaration form and engaging in inappropriate interactions with management, in the context of a history of non-compliance and safety breaches.
2. On their face, paragraphs 4 and 6 of the 2024 Application are admissions of all the breaches alleged by StarTrack and extracted at [16] above:

"4. On 4 November 2020, the Carrier failed to sign the Fit for Duty (FFD) declaration as required by the drivers daily run sheet.

...

6. It was during this meeting that the following discussion or words to that effect took place.

Carrier "Didn't have to sign it (FFD) as it was not at his workstations." "No-one told me that I have to go up front to sign FFD."

Mr Baldock stressed the importance of FFD Carrier responded in alleged raised voice "Bullshit, Bullshit, I didn't pass out, did I fucking faint, did I come and do my run."

Mr Laface asked the Carrier to stop swearing the Carrier replied I'm talking now, you fucking listen to me."

The Carrier was again asked to stop swearing by Mr Laface and the Carrier replied, "I'm not fucking swearing...I'm talking so fucken listen to me."

Mr Laface asked Mr Ross for assistance to stop the Carrier swearing."

1. During the oral submissions, Mr Grumley accepted that the 2024 Application may be read as an admission of the conduct.[8] StarTrack says that these admissions support the termination of the 2019 Contract.
2. During the cross-examination of Mr Singh,[9] he was taken to Schedule A to the 2024 Application, in particular paragraphs 4 and 6. When asked about its accuracy, Mr Singh confirmed during cross-examination that Schedule A was true and correct,[10] giving the following evidence:

"Q. Do you recall sending (sic) this document?

A. (No verbal reply)

Q. This is your application. This is the document by which you commenced these proceedings?

A. Do I have these ones.

...

A. Yep, this is the application. Yes.

Q. This is the application? And at the back three pages you'll see something that says "Schedule A"? Do you see that? It says, "Grounds and Reasons"?

A. Yep.

Q. That's where you set out what your grounds are for seeking the orders that you want from the Commission. Is that right? I'm not asking you to read it, I'm just saying, you said you've seen this document. Is that right?

A. Yes, yes. That's right.

Q. That means you've seen Schedule A which sets out your grounds and reasons?

A. Schedule A, yes.

Q. And this is a document that presumably you read before it was filed? I'm not asking you to read it now, I'm just asking whether you recall reading this before it was filed with the Commission?

A. Yeah, I'm just to make sure if these are the one.

...

Q. And - and like with your - with your statement, you recalled earlier, you would accept that the reasons - the grounds and reasons that you've put in here are true and correct, is that right?

A. Yes.

Q. Now, can I just take you to paragraph 6 - sorry, paragraph 4 of that? At paragraph 4 you say that you failed to sign a fit for duty declaration on 4 November?

A. Yep.

Q. That's right? And then on 5 November you met with two Australia Post representatives, Michael Baldock and Robert LaFace, along with Graham Ross. Is that right?

A. Yes.

Q. And then there was a conversation on 5 November about the failure to - the failure to sign the fit for duty--

A. Yeah.

Q. --declaration?

A. Yeah.

Q. And in that conversation - and this is what you've put in your application - you said you didn't have to sign it as it was not at your workstation. "No-one told me that I have to go up to sign the fit for duties". Is that right?

A. Yep.

Q. And then Mr Baldock stressed the importance of the FFD and then you responded in a raised voice, "Bullshit. Bullshit. I didn't pass out. Did I fucking faint? Did I come to do my run?". You said that?

A. No.

Q. No?

A. No.

Q. Well, you've said - and I will go on - "Mr LaFace asked the carrier to stop swearing and the carrier replied, 'I am talking now. You fucking listen to me'". You said that?

A. Not with swearing words.

Q. Well, why have you put it in your application if you didn't say it?

GRUMLEY: Objection, Senior Commissioner. If I may, Mr Singh didn't make the application, the TWU made the application. Mr Singh cannot make these applications. It was made on his behalf, just to clarify.

SENIOR COMMISSIONER: I understand but I think Mr Foran asked the applicant - he'd seen the application and the schedule--

GRUMLEY: Yep.

SENIOR COMMISSIONER: --so he's been - but I understand that description but--

GRUMLEY: Yeah. It's not his - his words.

SENIOR COMMISSIONER: I think Mr Foran set up the premise.

GRUMLEY: Yep.

FORAN: He said it was true and correct."[11]

1. In re-examination, Mr Singh gave evidence that he did not create the 2024 Application. I accept this is the case.
2. The Commission is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just.[12]
3. Pursuant to s 311 of the IR Act, four classes of entities are entitled to make an application under Chap 6, Pt 2 of the IR Act, in which s 314 falls. As set out in s 311(1), the following may make an application for the Commission to exercise a function under Pt 6:

"(a) a bailor under a contract of bailment, if the average number of different bailees with whom the bailor entered into contracts of bailment on each working day during the period of one month that last preceded the making of the application was not less than 10, or

(b) a principal contractor under a contract of carriage, if the average number of different carriers with whom the principal contractor entered into contracts of carriage on each working day during the period of one month that last preceded the making of the application was not less than 10, or

(c) an association of employing contractors, or any other association, which represents bailors or principal contractors who are, or some of whom are, parties to contracts of the class concerned, or

(d) an association of contract drivers or an association of contract carriers that represents bailees or carriers who are, or some of whom are, parties to contracts of the class concerned."

1. The 2024 Application was lodged by the TWU on behalf of Rashpal Singh and R H Road Tranz. The TWU is an entity within the meaning of paragraph (d) and therefore entitled to make the application. Neither Road Tranz nor Mr Singh are in a class of entities entitled to make this kind of application, despite the nomenclature of "the Applicant" used in this decision for convenience to describe them: see Transport Workers' Union of New South Wales on behalf of Rebtech Pty Ltd v Star Track Express Pty Ltd [2025] NSWIRComm 1011 (Rebtech) at [2]-[3].
2. Pursuant to section 163 of the IR Act, I am entitled to, and do, infer from the responses provided by Mr Singh and the questions posed by Mr Grumley that the TWU prepared the 2024 Application.
3. The Commission operates in an informal manner, and as already stated, applications under section 314 of the IR Act proceed without formal pleadings. Despite Mr Grumley's concession as to how the 2024 Application may be read, the parties filed evidence and submissions setting out their respective positions. The Applicant's material clearly indicated that the Applicant had not intended to make the relevant admissions and these admissions were not raised by StarTrack in its material.
4. Taking into consideration the evidence and submissions relied on by the Applicant, it is my view that the purported admissions in the 2024 Application were intended to be references to the allegations made against the Applicant by StarTrack rather than admissions. It would be unfair to conclude this matter on the basis of what are said to be admissions in the 2024 Application which the Commission considers to be a drafting error by the TWU.
5. StarTrack relies on other concessions made by the Applicant during the hearing in addition to the content of the 2024 Application. The RCS sets out at par 14, the concessions StarTrack asserts that Mr Singh made during cross examination:

"(a) that when asked to stop swearing by Mr LaFace he replied, "I'm not fucking swearing, I'm talking so fucking listen to me" [Transcript p. 12 L49-50];

(b) that the conduct in (a) was not appropriate in the workplace and a breach of the respondent's "Our Ethics" policy [Transcript p. 13];

(c) that he has never (prior to cross examination) acknowledged that his interactions with Mr LaFace in (a) were wrong [Transcript p. 13];

(d) that in his response to the allegations that led to his termination, he acted inappropriately by purporting to blame Mr LaFace for how Mr LaFace managed his own dock [Transcript p. 24];

(e) that despite being warned about his failure to complete compulsory training modules, a month after receiving that warning he had still failed to complete the modules [Transcript p. 27];

(f) that the fitness for duties form was an important step to ensure workplace safety and his failure to complete that form posed a massive risk to the Respondent [Transcript p. 30];

(g) that in the proceedings he made serious allegations against Mr Laface without any evidence" [Transcript p. 25].

(Footnotes inserted into text)

1. While the ACRS does not expressly accept the extent of all of the admissions outlined in [57], the Applicant appears to acknowledge that some admissions were made. Relevantly, the Applicant consistently submitted that the relevant standard by which its conduct should be judged should be "of men and not of angels" citing Jupiter General Insurance Company Limited v Andeshir Bomanji Shroff (1937) All ER 67 at 73-74 and Mr Phillip Slater v Patrick Port Logistics Pty Ltd [2012] FWA 7204. Such a submission implies that there is an acceptance of some misconduct which is to be judged by an appropriate standard.
2. I will now determine whether the substantiated allegations relied on in the Termination Letter are made out to my satisfaction. I will then consider whether the admitted and/or proven conduct justifies upholding the termination of the 2019 Contract.

Fitness for Duty (FFD) declaration - Allegations 1 and 2(a) (Admission (f))

1. StarTrack says that its policies and procedures require that "all employees, subcontractors, freight handlers, [and] supervisors" of vehicles must sign a FFD declaration before they can begin work.[13] StarTrack alleges that on 4 November 2020, Mr Singh on behalf of Road Tranz, refused to sign the FFD declaration.
2. The requirement to sign the FFD declaration is set out at cl 5 of the CoR Compliance Process.[14] However, cl 1.1 of the CoR Compliance Process includes a paragraph outlining the application of the CoR Compliance Process:

"This compliance and auditing process applies to vehicles over 12 tonne GVM only. That is not to say that vehicles of 12T GVM and under should not comply with specific regulations or should not be audited, it is only to say that they are not taken into account in this document."

1. Counsel for StarTrack, Mr Foran, conceded at the hearing on 18 September 2025 that the Applicant's vehicle was less than 12T,[15] but submitted that the obligation to sign the FFD declaration arose from a management direction and pursuant to cl 6.19 of the 2019 Contract, StarTrack could notify the drivers, including the Applicant, of the application of policies from time to time.
2. In support of this submission, StarTrack relies on the evidence of Mr Gourlie including Annexure MG4 to his statement which is the 2019 Contract. Clause 6.19 of the 2019 Contract states:

"6.19 Compliance with Policies

The Contract Carrier shall ensure that its employees and agents, including the Approved Driver and any Alternate Driver, are trained and act in accordance with their responsibilities as required by:

9a) all relevant WHS Laws ... and whatever is agreed between the parties."[16]

1. Mr Gourlie's evidence is that the requirement for all workforce participants, including contractors and employees, to sign a FFD declaration came into effect in late 2019, around the time of the COVID pandemic. Mr Gourlie did not give evidence as to how this was communicated, whether orally or written. In his witness statement, Mr Gourlie outlined these matters and noted an absence of complaints by the drivers about the location of the form that the drivers were required to complete:

"7 The requirement for all workforce participants, including contractors and employees, to sign a FFD came into effect in late 2019 to early 2020 around the time the COVID pandemic began. Annexed hereto and marked "MG-3" is a copy of the CoR Compliance, Drivers Daily Run Sheet & Fitness for Duty Auditing Process (CoR Compliance Process) dated 18 February 2020, which applies to drivers and other specified staff and sets out StarTrack's requirement for drivers to complete a FFD declaration at section 5. I believe this was the document that managers relied on to advise employees and contractors of StarTrack's compliance obligations and requirement to complete the FFD declaration, including during toolbox talks. I believe it was also available on the intranet to view at the time.

8. The purpose of a FFD was to place responsibility on an individual to confirm there are no factors, such as injuries or any side effects from medication, that could impact on an individual's fitness for work. A FFD declaration was particularly important for high-risk roles such as the Applicant's role as a Driver which involved driving and working an area that [contains] operational machinery, plant and equipment. StarTrack had obligations to ensure that drivers were fit to perform their work, and the FFD process was subject to national auditing and reporting requirements under the CoR Compliance Process.

...

10. I do not recall the Applicant or other subcontractors raising safety concerns regarding the FFD process, including any issues with lack of parking outside the scanner room or lack of marked parking in the area. I also do not recall subcontractors being told to sign the FFD in their own unpaid time."

1. In cross-examination of Mr Singh the following exchange about the requirement to sign the FFD declaration form and the application of the three points of contact illustrated a confusion between the requirements for drivers of cargo vans vis a vis drivers of rigid vehicles:

"Q. And then this is also the reason why you don't sign the fit for duty form on 4 November, isn't it, because you say you'd put the FFD process in dispute?

A. The sheets going to front door, yes.

Q. So your attitude to compliance with StarTrack's policies was if you disputed it, or your union disputed it, you just weren't going to do it? Is that right?

A. We'll do it but with--

Q. But on your terms?

A. Not on our terms on right terms. I think - I think without - without paying means getting contractors or any worker getting the trainings done or the job done without getting paid or you know, asking us to drive through the trucks a forklift and park in unsafe spots and then walk from there, sign the sheets in - in the main door and they're not providing us proper parking spots. I think that was unfair that was unsafe and these were the things I had mentioned. It really--

Q. So you just chose not to do it?

A. It's - no, I chose to communicate.

Q. You've agreed that you didn't sign the fit for duties form on the 4th because it was still in dispute. They're your words?

A. Yes. I did not refuse to sign. It was not available there.

Q. Well you would agree, wouldn't you, that the fitness for duties form was an important part of StarTrack ensuring that you were fit every day to go out on the road.

A. Yes, it is.

Q. And so without that document, they couldn't be sure that you were fit for duties?

A. That's - that's right.

Q. So if you didn't sign it and you were out on the road, that posed a massive risk for StarTrack?

...

A. Yes, it is.

Q. We're going to move on to the vehicle policy. You've said in your statement that you take safety very seriously. Is that right?

A. Yep.

Q. In relation to vehicles, you drove what's known as a rigid vehicle, a van?

A. Yes.

Q. Every day when you were going out on the road, you would fill out something called a "predeparture check", where you tick a whole lot of boxes?

A. Yes, it is. Sorry, I would like to clarify that. It's not rigid vehicle, it's cargo vehicle.

Q. Cargo vehicle?

A. Yep.

Q. But in any case, you would fill out a form that said that your vehicles were compliant with what they had to be compliant with?

A. Yep.

Q. I'll show you one of those in a moment. You would agree, wouldn't you, that there are the--

A. Three points of contact, yes.

Q. --three points of contact, required there to be grab handles on the doors?

A. Yep.

Q. And the three points of contact is that you had to have three points of contact?

A. To hold to get on and off, yes. Yes.

Q. To get on and off. So that if you jumped off the vehicle--

A. Yep.

Q. --you wouldn't have three points of contact because you would be in the air?

A. Agree. Agree.

Q. So jumping off a vehicle was not in compliance with that three points of contact?

A. Again, I would like to clarify those three point contacts, it's - they mostly apply to rigid vehicles like trucks, MR trucks, HR trucks but our vans they are as low clearance as cars, like four wheel drive so we have these talks with StarTrack before and we told them if you - if we need to do the three point contacts on the vans, we need to - our vans need to be fitted with three point contact by company because company are responsible of all of those things. At that--

Q. Sorry, is this in your statement?

A. It's not in papers. It's not in papers. Yes.

Q. Continue?

A. And they - they agree with that, that vans are low clearance to get in and out and they do not require three point contact.

Q. But you say that your van wasn't compliant with the three point of contact?

A. No. As StarTrack said, these vans, they don't need to be fitted with three point contact because they have low clearance as a step to get in and out of the cargo.

Q. Where does StarTrack say that? In one of their policies?

A. It - it - it was in meetings what we had with StarTrack. It was - like, again, if you go back to start - if you go back to any contractor and ask there is nothing StarTrack provide you in return. I think these are the reason--

Q. Mr Singh, are any of these other contractors giving evidence today?

A. Not today.

Q. Is there any evidence of these matters about StarTrack saying that your vehicle didn't have to comply?

A. No, not today.

Q. So you accept that your vehicle didn't have the grab handles?

A. Yep.

Q. You would accept that as a part of the Chemist Warehouse investigation, there were findings about you not complying with the three point of contact. Is that right?

A. According to that stage, yes, what they said but as they - what they said before that our vehicle don't need that and we don't need to comply with three point contact.

Q. But you must have known after you received that breach notice that your vehicle--

A. Yes.

Q. --needed to comply with three point of contact?

A. That was, I would say, surprised or shock that--

Q. Did you take steps to put handles on your vehicle?

A. It's - again, it's not - it's not our responsibility. We - our responsibility is only to provide vehicle. Any other safety measurements, they were to be provided again, like say, fit our uniform or any safety views we do, it was provided by StarTrack. We had these talks before. StarTrack refused to put three point contact on our vans."[17]

1. In oral submissions, and in response to questions from me, Mr Foran noted that the requirement to sign the FFD declaration form was never contested by the TWU, Mr Foran maintained that clause 6.19 of the 2019 Contract allowed StarTrack to require the FFD declaration form regardless of the written policy and emphasised that the policy was communicated to carriers, as confirmed by Mr Singh's acknowledgment at a toolbox meeting.[18]
2. In response to this submission, Mr Grumley mounted very little resistance:

"GRUMLEY: ... Yeah, the evidence before you is what it is. In response to that, without the benefit of the transcript, as well, I'm in the dark a little bit here on what might have been said and recalling everything that might have been said, but my view is that I had put questions to Mr Gourlie about the policy and the decision to terminate Mr Singh was based on this policy or part of it and that's what I put to him is my recollection.

SENIOR COMMISSIONER: If you've got the court book, at 64, what Mr Foran's relying on is the acceptance by Mr Singh of the instruction.

GRUMLEY: Yes. Well, I accept that, that that is in the evidence, yes."[19]

1. Despite Mr Grumley's concession set out above, it has not been established that the Applicant was required to sign the FFD declaration form. Nevertheless, the Applicant did not assert specifically that the CoR Compliance Process was inapplicable nor that the requirement to sign the FFD declaration did not apply.
2. I accept that the Applicant believed that he was required to sign the FFD declaration form and that he had been informed at a toolbox meeting that the form was now to be signed "at the front". I do not accept Mr Gourlie's evidence that the drivers had not complained about the location at which the form was to be signed, as Mr Singh clearly disputed the location at which he was required to sign the form, the impact on him of this, and safety issues he perceived as a consequence of the location of the form.

Allegations 2(b), (c), (d), and (e) - Conduct during the meeting on 5 November 2020 (Admissions (a) and (b))

1. StarTrack alleges that on 5 November 2020, at a meeting to discuss the Applicant's alleged failure to sign the FFD declaration form, Mr Singh failed to meet the appropriate workplace standards, specifically by swearing at two company representatives, Mr LaFace and Mr Baldock.
2. StarTrack asserts that Mr Singh admitted in cross-examination that when he was asked to stop swearing by Mr LaFace he replied, "I'm not fucking swearing, I'm talking so fucking listen to me" and this conduct was not appropriate in the workplace and a breach of StarTrack's "Our Ethics" policy.
3. In addition to the evidence extracted at [49] about Mr Singh's interaction with Mr Baldock and Mr LaFace at the meeting on 5 November 2020, the following exchange during the cross-examination of Mr Singh deals with the admissions about the alleged swearing:

"Q. And you were - you were asked to stop swearing by Mr LaFace and the carrier replied, "I'm not fucking swearing, I'm talking so fucking listen to me"?

A. Yes, I recall this.

Q. Now, Mr Singh, you've said in your - in the written submissions filed on your behalf that you're to be assessed - "That language is to be assessed against the standard of men, not angels". Do - do you recall saying that in your written submissions through your legal representative?

GRUMLEY: I'd object to that as well. Mr Singh didn't write the submissions.

...

Q. Mr Singh, did those - those words that you've just agreed to saying, "I'm not fucking swearing, I'm talking so fucking listen to me", do you believe that that's appropriate language to use in the workplace?

A. No, it's not but it was used from both sides.

Q. But, Mr Singh, my question was do you think it's appropriate--

A. No.

Q. --in the workplace?

A. No, it's not.

Q. And, in fact, it's a breach of the, "Our Ethics", policy that applies to you. Is that right?

A. Yep.

Q. But nowhere in either of your statements have you accepted that you did the wrong thing by saying those words. Is that right?

A. Yep."[20]

1. Mr Singh also later admitted that swearing in the workplace was inappropriate:

"Q. Mr Singh, did those - those words that you've just agreed to saying, "I'm not fucking swearing, I'm talking so fucking listen to me", do you believe that that's appropriate language to use in the workplace?

A. No, it's not but it was used from both sides.

Q. But, Mr Singh, my question was do you think it's appropriate--

A. No.

Q. --in the workplace?

A. No, it's not."[21]

1. Mr LaFace's written evidence about the incident on 5 November 2020 disputes Mr Singh's version of events. Mr LaFace states that he asked Mr Ross to assist him to deal with Mr Singh and that they "had to end the meeting because the Applicant would not settle down".[22]
2. While being cross-examined, Mr LaFace gave the following evidence touching on the swearing allegations:

"Q. No, okay. Mr Singh says that he never refused to sign the fitness for duty declaration. What do you say about that?

A. When, on 4 November 2020 I had a supervisor, Michael Baldock at the time, approach myself, explained that Rashpal had refused to sign fitness for duties. I went and seen him with another union delegate to, as a support person, asked him why he would, why he refused to sign fitness for duties and became quite aggressive, started swearing to the point where I actually had to reach out for support from a TWU delegate to ask him to stop.

Q. All right. So you're saying that he refused, yes?

A. Yes."[23]

"Q. Okay. That's not true, is it? That Mr Singh used many swear words?

A. Yes, it was true.

Q. What were the swear words, do you know?

A. The F word. Telling me, "No, stop, you effing listen to me". It's quite aggressive nature, which I didn't approve.

Q. Mr Singh says he didn't say that. Mr Singh said he used the word "bullshit". Would you agree with that?

FORAN: I object to the question. We've had this objection before, about Mr Singh says he didn't say that. That was not the evidence of the witness. I don't want it put as a proposition when that's not what the witness said.

GRUMLEY: There are circumstances though I do have the right to ask about particulars, do I not?

SENIOR COMMISSIONER: But, what Mr Foran is saying, in the evidence that fell in cross-examination, it wasn't a denial.

GRUMLEY: Okay. All right.

SENIOR COMMISSIONER: And, so the proposition that you're putting to this witness--

GRUMLEY: Yes, I'm just rehashing things. I get that.

SENIOR COMMISSIONER: --is not consistent with the evidence that fell from your member. That's what Mr Foran is saying. Do you want to be heard on that objection?

GRUMLEY: No, it's fine. I agree. That's fine."[24]

1. Mr Gourlie's written evidence about the incident on 5 November 2020 disputes Mr Singh's version of events and in short form supports Mr LaFace's evidence.[25] Mr Gourlie attaches an Investigation Report to his statement which includes what is stated to be Mr LaFace's account of the incident and the swearing he attributes to Mr Singh.[26] It is not clear from Mr Gourlie's statement,[27] or the face of the Investigation Report, who prepared this report. However, the Show Cause Letter authored by Mr Gourlie refers to "my investigation".
2. Mr Gourlie was cross-examined in respect of the swearing allegations and the following exchange occurred:

"Q. In your evidence you say the applicant was invited to a meeting to discuss the issue and he became aggressive. Is that correct?

A. That's written down, yes.

Q. And swore at managers, yes. You didn't take part in this, did you?

A. Where he swore?

Q. Yeah.

A. No.

Q. And there are a number of alleged swear words that were used on that day. Are you familiar with those?

A. Not familiar with the, the terminology used at the time, seeing how far, far away it was, no.

Q. For instance, back to 236--

A. Mm-hmm.

Q. --the second allegation, MD 12, 5 November, Mr Michael Baldock and Robert LaFace met with you, as in Mr Singh?

A. Mm-hmm.

Q. And then below it, it points out he didn't have to sign the FFD. It was not his work station. No one told him. ...(not transcribable)... He responded with a raised voice, "This is bullshit, bullshit. Did I pass out? Did I fucking faint?"

A. Mm-hmm.

Q. That's what the allegations are, yes?

A. Yes.

Q. Mr Singh says that he didn't use some of the alleged swear words towards the managers, though. For instance, the "fucking" words, basically. H--

FORAN: I object to the question. That wasn't Mr Singh's evidence.

GRUMLEY: It's in his statement, I believe, where he denies it--

FORAN: He was challenged on that specifically and he admitted it.

GRUMLEY: Yeah, you're right. Okay. No I withdraw that. That's fine."[28]

1. In the AOS and ACS, the Applicant denies using the word "fuck" but despite this denial also submits that his exchange with Mr LaFace and Mr Baldock should be assessed by the standards of men and not angels and the use of the word "fuck" in a robust workplace during a heated conversation should not give rise to termination of a contract of carriage.
2. In the later-filed submissions, the ACRS, the Applicant appears to accept that this language was used:

"27) In response to paragraphs seventeen (17) and eighteen (18) the IRC is required to consider the termination of contract in all circumstances from a factual matrix and not from a factual vacuum focussing only on what was alleged to have been said.

28. It is the year 2025 and depending on a number of factors it should not be viewed as being controversial to use the "fuck" word in a workplace.

29. It would be inappropriate to apply a one size fits all approach when determining what language may or not be appropriate in the workplace without taking into consideration the industry, location and the workplace itself.

30. RH Tranz was engaged in the transport industry based in working class Western Sydney where standards and or sensitivities would be completely different to a workplace such as hair dressing salon based in the more privileged Eastern Suburbs of Sydney,

31. The use of the "fuck" word in a robust workplace during a somewhat heated conversation should not give rise to termination of contract."

1. I have considered the written and oral evidence of Mr Singh and the evidence of Messrs LaFace and Gourlie. I have also considered the content of the submissions, in particular the ACRS, and the cross-examination questions posed by the Applicant's representative.
2. I am satisfied that: Mr Singh swore at the meeting on 5 November 2020 and the language was in the nature of that alleged in Allegations 2(b), (c) and (d) and; Mr LaFace asked Mr Ross for assistance as alleged in Allegation 2(e). Allegation 2(a) is addressed at [60] - [68] above.

Was there a justifiable basis for the termination of the contract?

1. StarTrack has established to my satisfaction that Mr Singh engaged in the conduct asserted in the Allegations 1 and 2. I will now consider whether the established conduct provides a justifiable basis for termination of the 2019 Contract.
2. The Applicant accepted that the CoR Compliance Process applied and acknowledged its safety rationale. With safety a priority in transport companies, refusing or failing to sign the FFD declaration is a serious matter. The phrase "refused to sign" was used during the hearing, but neither the investigation nor its findings adopted this language. Instead, they consistently referred to a "failure to sign".
3. Mr Singh explained that he did not sign the FFD declaration because he had placed the process "in dispute," objecting to its location rather than the requirement itself. The Applicant stressed the distinction between failing to sign and refusing to sign, but StarTrack argues this distinction is immaterial. StarTrack says that either way, the conduct repudiated safety processes Mr Singh acknowledged as important.
4. In this instance, where the failure was deliberate and not accidental, I do not accept that there is a material difference between refusing to sign and failing to sign.
5. Despite Mr Singh's complaints about the location at which he was required to sign the FFD declaration form and the safety implications of this and the time this added to the start of his day, given he acknowledged the safety reasons for the declaration, he should not have simply refused to sign the form. There were dispute resolution avenues available to the Applicant to raise issues such as the applicability of the CoR Compliance Process to the Applicant's vehicle and the placement of the FFD declaration form, including through the TWU to the Commission which offered a path to resolution without ignoring the safety consequences.
6. The Applicant submits that the CoR Compliance Process required a graduated response to the failure to sign. Yet, that graduated approach applies only where non-conformance is due to carelessness. As the failure was wilful, I am not satisfied that the graduated response was mandated by the CoR Compliance Process.
7. StarTrack contends that the CoR Compliance Process allows for stronger disciplinary measures, including termination for a first breach, where the breach is deliberate or serious. Mr Singh's failure to sign the FFD declaration form was deliberate; he believed the placement of the form created unnecessary difficulty, he asserted safety issues, and sought to have these matters addressed. While Mr Singh's manner was unnecessary and unhelpful and he did not use the dispute resolution avenues available to him, given he had cited safety reasons for not signing the form, his failure to sign the declaration warranted a disciplinary response. A one off incident of this type would not however, on its own, reach the level of seriousness required to justify termination of the 2019 Contract.

Swearing and associated conduct on 5 November 2020

1. StarTrack says that in respect of the swearing and associated conduct at the meeting held on 5 November 2020, the Commission should reject the "standards of men and not angels submission" as the standards of 2025 do not permit such hostile interactions which are inconsistent with a safe workplace. StarTrack relies on Commissioner Muir's statement in respect of a similar submission in Rebtech at [109]:

"Submissions that the nature of the workplace would allow for more robust language and more aggressive behaviour, have limited use. The often quoted "standards of men not of angels" has some value, but it is of standards in 2024 (as the events were), not decades past."

1. In an employment context, swearing during a disciplinary meeting, without other substantiated allegations, will not automatically justify termination of employment. While offensive language can amount to misconduct, it is necessary to consider whether the language was directed at a person, whether it breached workplace policies, and whether it undermined authority. In Salloum v Jayco Unit Trust [2016] FWC 3746, the Fair Work Commission distinguished between casual swearing and abusive language aimed at colleagues, finding that the latter could justify dismissal.
2. In Zopf v Industrial Relations Secretary [2020] NSWIRComm 1012, the Full Bench upheld a finding that while Mr Zopf's swearing during a disciplinary meeting constituted misconduct, the dismissal was harsh due to the mitigating factors such as the stressful circumstances and Mr Zopf's long service record. In its decision, the Full Bench accepted that reinstatement was impractical due to a breakdown in trust, and therefore compensation was an appropriate remedy. However, the Full Bench also reinforced that termination for a single outburst of swearing in a disciplinary context can be disproportionate.
3. Respect at work is a reasonable expectation of all persons at the workplace in 2025, whether they are employees or contract carriers. At the meeting on 5 November 2020, Mr Singh engaged in abusive and offensive language aimed at Messrs Baldock and LaFace. It warranted a strong disciplinary response.
4. The cumulation of the Applicant's failure to sign the FFD declaration form and Mr Singh's conduct at the meeting on 5 November 2020 provided a sufficient (or valid) reason to terminate the 2019 Contract.

Was the Applicant accorded procedural fairness?

Was the investigation fair and was the Applicant given an opportunity to make out a defence?

"in the absence of such evidence [as to how long earlier contract breaches could be considered] being provided ... it cannot be established that RH Tranz was afforded procedural fairness throughout the investigation and subsequent termination process."[29]

1. The investigation, conducted by Mr Gourlie, included interviews with each of the relevant persons. The responses were fact-checked and not all matters subject to the investigation were made out. For example, an initial claim that Mr Singh failed to sign the FFD declaration on 2 November 2020 was reviewed and found incorrect.
2. The Applicant asserted that Mr Singh was unaware until after termination of the 2019 Contract of StarTrack's view that Mr Singh refused to sign the FFD declaration.[30] I am satisfied that Mr Singh was aware that the interview on 18 November 2025 was in respect of the allegations that he had refused to sign the FFD declaration form on 4 November 2025 and his conduct towards Messrs Baldock and LaFace on 5 November 2025.
3. StarTrack allowed Mr Singh a support person at the meeting on 5 November 2020, Graeme Ross,[31] and a different support person, Tomi Latu, during his meeting on 18 November 2025. At the meeting on 18 November 2025 Mr Singh was given an opportunity to respond to the allegations, including that he failed to sign the FFD declaration form. StarTrack then issued the Show Cause Letter containing the substantiated allegations and noting that "before making a final decision [the Applicant] shall be afforded an opportunity to provide StarTrack with any additional information as to why [its] contact should not be terminated".
4. Under cross-examination, Mr Singh agreed he received the Show Cause Letter and responded to it.[32]
5. The Applicant has not established any unfairness in the interview or show cause process.

1. There was an increasingly disharmonious relationship between Mr Singh and his contacts within StarTrack. Mr Singh appears frustrated with the purported application of safety-related policies to him without a recognition that some of the safety-related matters including those which apply under the Heavy Vehicle National Law should not necessarily apply to vans like the one operated by him, such as the three points of contact. Although the Applicant did not raise this issue directly, and Mr Singh accepted he had been instructed to complete the FFD declaration form, his frustration displayed at the meeting on 5 November 2020 was in my assessment, connected to the application of the CoR Compliance Process and obligations on carriers that applied under the Process, to the Applicant, despite clause 1.1 of that Process stating it applies to heavy vehicles.
2. The IR Act gives the Commission the power, after inquiry, to make a contract determination with respect to the reinstatement of a contract of carriage that has terminated.
3. I have determined that the Applicant had an opportunity to make out a defence and there were no specific procedural deficiencies with the investigation or show cause process. However, after inquiry, I have formed the view that reliance on the CoR Compliance Process, which on its face was not applicable to the Applicant, and on a verbal direction that the FFD disclosure form must be completed, renders the process procedurally imperfect. The Applicant's acceptance of the FFD declaration form does not resolve concerns about the fairness of alleging breaches under the CoR Compliance Policy, nor about treating van drivers the same as heavy vehicle drivers without specific consideration. This supports the conclusion that the process leading to termination was unfair.
4. If StarTrack had responded to the Applicant's complaints about the location of the FFD declaration form and other complaints by Mr Singh and had provided evidence of the application of the CoR Process to the Applicant both to him and to the Commission, I would have considered the termination of the 2019 Contract as a fair and reasonable outcome and I would have dismissed the 2024 Application.

1. The Applicant submits that StarTrack could not rely on any previous breaches in making the decision to terminate the 2019 Contract as the asserted previous breaches were not accepted by him and were not properly established by StarTrack. The Applicant submits that it disputed all of these issues through the TWU official, Michael Collins, who had these matters removed from the Applicant's service record.
2. The Termination Letter later states that "while StarTrack has not relied upon these breaches to terminate" the Contract, StarTrack has "taken it into consideration in deciding whether to terminate" the Contract. Consistent with StarTrack's decision, I have determined that the conduct explicitly relied on by StarTrack to terminate the 2019 Contract was sufficient, consequently, the treatment of the prior breaches is relevant only to whether there was appropriate procedural fairness given to the Applicant.
3. I have determined that the application of the CoR Compliance Policy to the Applicant without specific consideration that the relevant vehicle was not a heavy vehicle resulted in unfairness in the process leading to the termination of the 2019 Contract and I accept that Mr Singh took issue with the breach finding in respect of the three points of contact. However, the removal of these issues from the Applicant's service record is not borne out in the evidence.
4. The Applicant submits further that StarTrack did not make Mr Singh aware it was considering the previous breaches in support of the reason to terminate the 2019 Contract and thus this is unfair.
5. StarTrack says that the Applicant was on its "last chance" as it had narrowly avoided termination in relation to other allegations in 2020. The Termination Letter includes a history of other times that Mr Singh and/or Road Tranz were issued with a Breach of Contract. These were listed as: 13 July 2017, 4 July 2017, 4 May 2020, 18 August 2020, and 22 September 2020.
6. Taking the latest in time breach by way of example, being as determined by StarTrack that during a delivery to Chemist Warehouse Parramatta, Mr Singh had failed to use three points of contact, and there was a complaint about the manner Mr Singh delivered the items and his use of foul language. Mr Singh also made counter complaints about the difficulty of unloading his van at the site. The breach is dealt with in the letter from Mr Gourlie dated 22 September 2020, which included the following paragraphs warning Mr Singh that:

"Please be advised that any future breach of your obligations under your contract of engagement may result in the termination of your contract as detailed in clause 9 of your agreement

...

Rashpal, please be advised that you are required to rectify your conduct, performance and every requirement to perform your duties safely, as per all StarTrack policy and procedures, within 14 days of this letter and ensure this remains rectified on an ongoing basis. If any of the above breaches are repeated in the future, we will consider the breach to be unrectified and we will seek to terminate your contract as per clause 9 of your agreement."[33]

1. The Show Cause Letter referred to the recorded breaches under the heading of "Past History and Performance". Although the Show Cause Letter did not contain a specific statement that StarTrack would be considering the Past History when assessing whether to terminate the contract, under cross examination, Mr Singh conceded that "according to the papers", he was aware that StarTrack was considering other matters.[34]
2. The Applicant also submits that the previous breaches may have been outside their limitation period. The Applicant led no evidence as to the length of a relevant limitation period.
3. Other than the application of the CoR Compliance Policy to the Applicant, the Applicant has not established any procedural or substantive unfairness in relation to StarTrack's consideration of the past breaches.

1. StarTrack says that the Commission has a long history of prompt and active intervention in industrial disputes and such promptness is reflected in the express statutory purposes in the IR Act. To allow the 2024 Application in light of such a delay would be expressly contrary to the purpose, function and history of the Commission.
2. StarTrack submits that the Commission should rely on the delay of four years and Mr Singh's failure to explain this delay as well as Mr Singh's apparent disinterest in the case as reasons to dismiss the 2024 Application.
3. In his first written statement, Mr Singh states:

"I am no longer trying to enforce that agreement after Star Track refused to accept it."[35]

1. During cross-examination, Mr Singh did not provide a clear explanation for the substantial delay in approaching the Commission since the last listing of the 2020 Application, stating:

"I had my own reason which I mention here, why I did not put through my brother in before. As he didn't have a full‑time work visa before and once they refused it and then that's why we are here because I don't want to end up with nothing."[36]

1. Later, Mr Singh was asked "You never intend on enforcing that deed?", and replied:

"I didn't - like, I'm - I mean - I - I don't get the clarity of what you mean by 'didn't intend to force'. We - we tried to communicate to them and then we were in court for the same reason last time and they refused to give the opportunity."[37]

1. Neither StarTrack nor the Applicant asserted that the Commission should make orders pursuant to s 174 of the IR Act to enforce the settlement reached in early 2021 which resulted in the 2020 Application being administratively closed. Nor did either party assert that the settlement resulted in an agreement which fell into the first or second categories set out in Masters v Cameron  [1954] HCA 72; (1954) 91 CLR 353.
2. Mr Singh's evidence is unclear as to why he did not seek to enforce the agreement to resolve the 2020 Application, or why he took so long to reactivate an application for reinstatement, other than that his brother's immigration status, made the settlement difficult to enforce and he did not wish to "end up with nothing".[38]
3. The four year delay without an adequate explanation is inconsistent with the prompt resolution of industrial disputes referred to in the objects of the IR Act at s 3(g) and the overriding purpose mandated by s 56 of the Civil Procedure Act 2005 (NSW) (CP Act) being the just, quick and cheap administration of justice. However, unlike applications pursuant to s 84 of the IR Act which must be commenced within 21 days unless the Commission considers there is a sufficient reason to extend that time period,[39] or other applications on which the Parliament has seen fit to impose a strict limitation period which cannot be extended, such as public sector disciplinary appeals pursuant to s 100A of the IR Act which must be commenced within 28 days as required by s 100B, there is no limitation period applicable to applications pursuant to s 314.
4. As there is no limitation period for applications such as this and there was no application pursuant to s 174 of the IR Act, I do not consider that the 2020 Application nor the delay in bringing the 2024 Application preclude me making an order pursuant to s 314.

1. As set out above at [57], StarTrack asserts that the Applicant made a number of admissions during the hearing which it says support its decision to terminate the 2019 Contract. Those admissions that are relevant to whether the reasons for termination had a basis in fact are dealt with above. Some of these admissions are not relevant to the reasons for termination, but are relevant to the question of reinstatement:

(1) a failure to acknowledge his interactions with Mr LaFace were inappropriate (Purported Admission (c));

(2) blaming Mr LaFace for the situation (Purported Admission (d));

(3) that despite being warned about his failure to complete compulsory training modules, a month after receiving that warning he had still failed to complete the modules (Purported Admission (e)); and

(4) making serious accusations against Mr LaFace (Purported Admission (g)).

Prior to cross examination Mr Singh did not acknowledge that his interactions with Mr LaFace were wrong - purported admission (c)

1. Mr Singh accepted in cross-examination that his conduct towards Mr LaFace was inappropriate. There is no evidence that Mr Singh accepted this prior to the hearing. I consider this is relevant in assessing whether reinstatement is impracticable, and weighs against reinstatement.

Blaming Mr LaFace for the situation and making serious accusations against Mr LaFace - purported admissions (d) and (g)

1. In his second witness statement Mr Singh made the following allegation about Mr LaFace:

"20. In response to paragraph (5) I do not agree with this as there were occasions when he asked me to perform personal pickups for him at my own expense that I refused to do. There was one (1) occasion when he asked me to pick up a bulbar for his 4wd from Blacktown which I though was not reasonable. There were other occasions when he asked me to pick up and deliver alcohol to his home address. There was also an expectation that I would provide him with alcohol as a gift for what he said was looking after me on the dock which I never did."

1. This allegation was denied by Mr LaFace in oral evidence in chief,[40] and he was not cross-examined on it.
2. At the hearing Mr Singh continued to blame Mr LaFace for the manner in which he reacted at the meeting and maintained the allegations against Mr LaFace:

"Q. In this letter where you were showing to management, or trying to show to management, that you should remain engaged, your response is in relation to a supervisor, "Robert's doing something wrong. He should concentrate more on what he's doing and less on me"?

A. On his dock. Yes.

Q. In your view, that was an appropriate way to engage with the issue with Michael Gourlie?

A. No answer.

....

Q. Do you think it was appropriate to blame Robert for what he's doing on his dock in a letter about responding to allegations against you?

A. No.

...

Q. Do you think that that's a breach of the Our Ethics Policy?

A. It - it's only when I said when Robert was trying to interfere, I would say, just to pick on me but--

Q. My question was, do you think that's a breach of the Our Ethics Policy?

A. I'm not sure. I'm not sure, to be honest.

....

Q. Well your inability to engage respectfully with management by blaming someone else for your failures, that's a reason why they might lose trust and confidence in you?

A. Not sure.

Q. Don't know. Can I take you to page 368?

A. Yep.

Q. This is your reply statement that you adopted earlier?

A. Yes.

Q. Do you see at - at paragraph 20 you're responding to the statement of Mr LaFace?

...

And in there - in that response you say, "There was one occasion when he asked me to pick up a bull bar for his four wheel drive from Blacktown"--

A. Yep.

Q. --"which I thought was not reasonable"?

A. Yep.

Q. Do you have any evidence for him making that request?

A. I know someone who did this job instead of me.

Q. Well, I'm asking whether - it's quite a serious allegations, isn't it, against Mr LaFace?

A. Yeah. It was all verbal, yes.

Q. But - no. My question was, it's a serious allegation to make against Mr LaFace--

A. Yes, it is.

Q. --that he was asking you in work time to take StarTrack - to use StarTrack time - to do something personal for him?

A. Yes.

Q. Very serious allegation against him?

A. Yes.

Q. And you've got nothing more by way of evidence than what you're saying right here. Is that right?

A. Yep.

Q. And then you go on and say, "There were other occasions when he asked me to pick up and deliver alcohol to his home address"?

A. Yes.

Q. Again, do you have any text messages or any - any other--

A. It was all verbal, yes.

Q. It was all verbal. So you had no - you have no other evidence apart from what you're saying to make that very serious allegation?

A. Yeah, it was verbal.

Q. Making serious allegations against a supervisor without evidence is a serious matter, isn't it?

A. It is, yes.

Q. And isn't that another reason why StarTrack might not have trust and confidence in you?

A. But as I said, this is a true statement and I know who has done this job instead of me, and -

Q. I suggest to you that it's not a true statement and that you've made it up?

A. It's not. It's - it's a true statement. I have not made it up.

Q. And - and you say that there is someone else that could substantiate this statement?

A. Yes.

Q. And are they in court today?

A. No.

Q. Have you led evidence from them?

A. No.

Q. Do you have any material from them in your evidence to substantiate that?

A. Not today.

Q. So, again, making allegations without any evidence, that would be a reason that StarTrack would lose trust and confidence in you, wouldn't it?

A. I'm not sure."[41]

1. I have not taken the nature of these allegations into consideration in assessing whether StarTrack was entitled to terminate the 2019 Contract as this was not a ground relied upon: see Sidhu at [10]. These allegations are relevant to whether reinstatement is impracticable. There is no evidence before the Commission that supports Mr Singh's allegations which were made only when Mr Singh understood the 2019 Contract was likely to be terminated. Mr LaFace denied the allegations, and he was not cross-examined on this denial. While there was also no evidence that the allegations were investigated by StarTrack, in these circumstances I accept Mr LaFace's denial, and I consider that Mr Singh making these allegations weighs against the practicability of reinstatement.

Failure to complete the training modules - Purported Admission (e)

1. In cross-examination, Mr Singh admitted that he had one training module outstanding but put into issue StarTrack's requirement for him to complete it at home in his own time when he spends "all time at work on roads, concentrating on the roads, delivering, doing everything".[42]
2. StarTrack provided Mr Singh with an opportunity to rectify his breach and gave Mr Singh additional time to complete the modules but he failed to do so.
3. I accept that Mr Singh considered that the requirement to complete this training at home was unfair but he did not seek to address this requirement in an appropriate way through the dispute resolution processes available to him and chose instead not to complete the training. I have not taken the failure to complete the training modules into account in assessing whether StarTrack was entitled to terminate the 2019 Contract as it was not a ground relied upon. The failure to complete the model rather than addressing the issue in an appropriate way does however, weigh against the practicability of reinstatement.

1. In light of the matters set out above, and the status of the parties' relationship, and the fact that Mr Singh does not hold a heavy vehicle license, reinstatement is not practical, and compensation pursuant to s 314(4) is the appropriate remedy.

1. As Commissioner Stanton stated in Upshot Pty Ltd v Veolia Environmental Services (Australia) Pty Ltd [2017] NSWIRComm 1011 at [27], "... there is no arbitrary scale for compensation. Rather, compensation is determined by the Commission independently following an assessment having regard to all the circumstances of a particular case including mitigation."
2. Although the Applicant sought reinstatement, it indicated that in the alternative it sought compensation of six months' remuneration at the rate of $2,660.90 per week (gross). The Applicant did not provide any evidence of this amount but Mr Foran conceded in oral submissions that this amount was not put to Mr Singh in cross-examination.[43] I intend to use this amount as the gross weekly remuneration.
3. While there is no "arbitrary scale for compensation" when assessing any compensation payable, s 314(5) of the IR Act requires the Commission to take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements. During the period between the termination of the 2019 Contract and the hearing, Mr Singh secured alternate employment but he refused to provide evidence of his income, unless he were issued with a summons. Startrack sought a summons to be issued prior to the hearing but as it was sought to be issued with less than five days' notice the application was denied by the Registrar. Hence no helpful evidence was before the Commission.
4. In assessing compensation, I have taken into account that Mr Singh found an alternative engagement and Mr Singh's failure to provide any information about his or Road Tranz's remuneration since the termination of the 2019 Contract.
5. I have taken into account several other factors. These factors include that there was a valid reason for termination. I have also taken into account that the unfairness arose in the context of StarTrack's failure to deal with Mr Singh's complaints about matters such as the three points of contact and the application of the CoR Compliance Process, and that the Applicant had dispute resolution processes available to it which it did not use.
6. I have taken into account the Chemist Warehouse Parramatta incident. Despite Mr Singh's view that the three points of contact did not, or at least should not, apply to vans, his behaviour at Chemist Warehouse which included using foul language towards a customer similar to the language he used with Mr LaFace and Mr Baldock on 5 November 2020 was not appropriate.
7. Despite there being no limitation period, I have also taken into consideration the significant delay between the termination of the 2019 Contract in 2020 and the commencement of the 2024 Application and Mr Singh's failure to explain adequately why he did not finalise a similar application made in 2020 or act earlier to seek arbitration. Just, quick and cheap resolution of the real issues in proceedings is more likely when parties act with reasonable speed when prosecuting their rights through litigation regardless of there not being a limitation period.
8. The allegations made by Mr Singh against Mr LaFace are serious and appear unfounded. However, without any evidence before the Commission to substantiate the allegations nor any evidence that the allegations were investigated and found to be unsubstantiated, I have not taken Mr Singh's actions in taking the allegations into consideration in assessing the quantum of compensation.
9. As the 2019 Contract was terminated in 2020, I am conscious that there has been a significant change in the value of money during that time. However, as the Applicant did not press the 2020 Application (nor the settlement of it) and would not provide the Commission with useful information as to why he did not. I have decided not to make any adjustments to the quantum of compensation on this basis.
10. Applying the factors referred to above, I consider that appropriate compensation is an amount equivalent to one week's remuneration at the rate of $2,660.90 (gross) per week as set out in the 2024 Application.
11. This outcome reflects a practical application of the principles established under the unfair dismissal provisions to this jurisdiction in circumstances where there was a valid reason for termination but I have found that unfairness arose in the context of the application of the CoR Compliance Process and StarTrack's failure to deal with Mr Singh's complaints and concerns.

(1) Startrack Express Pty Limited pay Road Tranz Pty Ltd an amount of $2,660.90 (gross).

[1] Application filed 1 November 2024, p 1.

[2] While it is not of great significance, I note that 26 x $2,660.90 = $69,183.40.

[3] Annexure MG-13 to the witness statement of Michael Gourlie made 26 March 2025.

[4] Annexure MG-14 to the witness statement of Michael Gourlie made 26 March 2025.

[7] Tcpt 18 September 2025, p 9 at 32-38.

[8] Tcpt 18 September 2025, p 6 at 28-35.

[10] Tcpt 22 May 2025, p 11 at 30-33 above.

[11] Tcpt 22 May 2025, p 10 at 32 - p 12 at 45.

[13] Par 11(b)(ii) of Exh R3, the witness statement of Robert LaFace.

[14] Annexure MG-3 to Exh R2, the witness statement of Michael Gourlie.

[15] Tcpt 18 September 2025, p 4 at 15.

[16] Annexure MG-4 to Exh R2, the witness statement of Michael Gourlie.

[17] Tcpt 22 May 2025, p 29 at 39 - p 32 at 22.

[18] Tcpt 18 September 2025, p 4 at 39 - p 7.

[19] Tcpt 18 September 2025, p 5 at 17 - 28.

[20] Tcpt 22 May 2025, p 12 at 49 - p 134 at 33

[21] Tcpt 22 May 2025, p 13 at 16 - 25.

[22] Paragraph 11(l) of Exh R3, the witness statement of Robert LaFace.

[23] Tcpt 22 May 2025, p 82 at 44 - p 83 at 5.

[24] Tcpt 22 May 2025, p 93 at 42 - p 94 at 23.

[25] Par 18 of the Statement of Michael Gourlie.

[26] Annexure MG-11 to Exh R2, the witness statement of Michael Gourlie.

[27] Par 19 of Exh R2, the witness statement of Michael Gourlie.

[28] Tcpt 22 May 2025, p 69 at 22 - p 70 at 11.

[30] Par 92 of Exh A1, the witness statement of Rashpal Singh dated 26 February 2025.

[33] Annexure MG-10 to Exh R2, the witness statement of Michael Gourlie.

[41] Tcpt 22 May 2025, p 23 at 46 - p 26 at 19.

[42] Tcpt 22 May 2025, p 27 at 30 9 p 28 at 15.

[43] Tcpt 22 May 2025, p 27 at 30 9 p 28 at 15.