TWU (o/b M Burrell) v Westlakes Haulage & Earthmoving [2002] NSWIRComm 213

Industrial Relations Commission of New South Wales

CITATION : TWU (o/b M Burrell) v Westlakes Haulage & Earthmoving [2002] NSWIRComm 213 APPLICANT Transport Workers Union of Australia, NSW Branch PARTIES : on behalf of Mark Burrell RESPONDENT Westlakes Haulage & Earthmoving FILE NUMBER: IRC 2955 of 2002 CORAM: Harrison DP CATCHWORDS : Unfair dismissal - allegations of poor work performance not made out - assertion that client directed removal of applicant from site unsubstantiated. Held - termination of employment harsh, unreasonable and unjust - reinstatement ordered without loss of wages or continuity of employment LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 08/15/2002 EXTEMPORE JUDGMENT DATE : 08/23/2002

APPLICANT Mr M Kaine, Solicitor for TWU

LEGAL REPRESENTATIVES: RESPONDENT Mr D Eager for NSW Road Transport Association Inc.

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 23 August 2002 Matter No IRC 2955 of 2002 TRANSPORT WORKERS' UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH (ON BEHALF OF MARK BURRELL) AND WESTLAKES HAULAGE & EARTHMOVING PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION [2002] NSWIRComm 213 1 This matter was subject to arbitration on 15 August 2002 consequent upon unsuccessful attempts at conciliation. 2 Mr M Kaine Solicitor appeared for the Transport Worker's Union of Australia, New South Wales Division ("the Union") on behalf of Mr Mark Burrell ('the applicant') . 3 Mr D Eager of the Road Transport Association of New South Wales appeared on behalf of Westlakes Haulage & Earthmoving Pty Ltd, the respondent employer. 4 Mr Kaine brought evidence from Mr D Evans, an official of the Union; Mr L Roberts, an employee of the respondent; Mr B Burrell, an employee of the respondent and father of the applicant; and Mr M Burrell, the applicant. 5 Mr Eager brought evidence from Mr G Ellison, Managing Director of the respondent. 6 An ex tempore decision was issued at the conclusion of proceedings. Reasons in full and orders are now published. 7 The primary facts in this matter are largely undisputed. 8 The applicant was employed by the respondent as a loader driver on 21 June 1999 and subsequently reallocated to truck driving, the position occupied at the time of termination of employment. During the course of his employment the applicant worked various rosters, five days per week, Monday to Friday. 9 On 3 May 2002 the applicant was given an "official warning" in writing (Ex 9), which states: