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: On the 16th April 2002 you undertook a random drug test at New Wallsend No 2 Colliery. The result of that test was that you proved positive to a prohibited substance, namely "Cannabis Metabolite". As a result of that finding I have no alternative but to issue you with an official warning. 10 It is curious that the official warning does not specify the nature and detail of that warning though invites the inference that the recipient should modify behaviour to ensure no further occurrence. The warning cannot be said to have terminated the applicant's employment; on the contrary, it conveys an expectation of continued employment, although this did not occur. The applicant has not been afforded work or wages by the respondent since 16 April 2002. 11 The applicant submitted to a further drug test, the result being negative to the prohibited substance. The applicant sought to resume employment and was refused. 12 The respondent made no formal advice that the applicant's employment was terminated until correspondence to Mr D Evans of the Union on 13 May 2002 (Ex 10). There is, so far as the evidence shows, no formal advice direct to the applicant. 13 The reasons for refusal to continue employment are set out in exhibit 10 in the following terms: HISTORY Mark commenced employment with Westlakes Haulage and Earthmoving Pty Limited on 21 June 1999. He is employed as a casual operator. He started as a loader driver on afternoon shift. After a period in that capacity, Greg Ellison decided to switch Mark to day work with the view of training him as a rigid tipper driver - a position he has held until the present time. PERFORMANCE The following points have been brought to Mark's attention during his time as a rigid tipper driver: · Too much time spent on non-work related matters · Work rate not up to scratch · Not enough care in standard work procedures · Proper care and maintenance of vehicle not taken · Inappropriate time sheet entries · Reluctance to follow "Colliery" instructions · Negative attitude to plant and equipment · Criticism of employer over Colliery 2-way radio GENERAL OBSERVATIONS Mark has openly stated on a number of occasions that he is not suited to and does not want to be a truck driver. He states "he should not have to get his hands dirty". In accordance with the Transport Industry (State) Award, Mark has received three official warnings in relation to his work performance. On the 16 April 2002, Mark underwent a random drug test (requested by the Colliery). He proved positive to the prohibited substance cannabis metabolite, resulting in his immediate removal from Colliery grounds (as per Colliery OH & S protocol). As a result of this, Mark was issued with his third and final warning. A meeting was held between New Wallsend Coal and Ellisons Bulk Haulage (Westlakes Haulage & Earthmoving) on 3 May 2002, which came to the conclusion that New Wallsend Coal did not want Mark to continue working at their site. After careful consideration of Mark's history, work performance and general observations as an employee of Westlakes Haulage & Earthmoving we have no positions available for him to continue working for our company. 14 The issues of performance are supported by "official warning" letters of 6 February 2002 concerning intentional misuse of a vehicle (Ex 7), and 14 February 2002 in respect to criticism of employer over the colliery two way radio system (Ex 8). 15 In rebuttal of Ex 10, the applicant's evidence is that the shift change was an unfair and unprovoked punitive measure, dressed up as job rotation and workforce flexibility, which cost him earnings of $200 per week. 16 The applicant's evidence is that other than those two events none of the other issues had been raised with him in any way. 17 The applicant denies the allegation of too much time spent on non-work related matters. The allegation is that he spent too much time on the telephone in the truck shed, which the applicant put is the usual means of communication to Mr Taylor and Mr Samson. 18 The applicant denies that his work rate was not up to scratch. The applicant's evidence is supported by work records, Ex 4 and 4A, which show that the applicant met the daily expectation of seven or more loads per hour. 19 The allegation of insufficient care in standard work procedures was not capable of comprehensible explanation by the respondent. 20 The failure to take proper care of vehicles is alleged to relate to driving on under-inflated tyres. Mr Ellison conceded that he had never observed the applicant driving on under-inflated tyres, relying on reports from Messrs Allan and Samson. 21 The allegation of inappropriate time sheets is put as claiming payment for time not worked. This is denied. Mr Ellison concedes that he has not seen a time sheet completed by the applicant to support the allegation. 22 Reluctance to follow colliery instructions is not particularised in any adequate manner. 23 The assertion that the applicant stated that "he does not want to be a truck driver"; and, "should not have to get his hands dirty", are refuted by the applicant. His evidence is that these comments occurred in a jocular and throw away sense in a conversation between himself and Mr Allen whilst he was changing a tyre on a wet and muddy dirt road, the procedure resulting in him becoming covered in mud. The applicant emphasised in his evidence that he changed the tyre, cleaned himself up and got on with the job though expressed a view that a tyre change crew from the tyre supplier would be preferable. 24 The applicant's evidence is that the warning in respect to misuse of a vehicle resulted in an observation by Mr Dennis Taylor, the site supervisor employed by the respondent, of difficulty he experienced with the gear mechanism of a water cart, identified as vehicle no 45. Evidence was adduced from Mr L Roberts, an employee of the respondent that the gear mechanism of this vehicle is difficult to operate and accordingly requires some force. 25 The applicant's evidence is that the issue of criticism over the colliery two way radio system was an innocuous conversation between himself and a loader driver, identified as Mr Lyle Burrell (a cousin of the applicant's father) concerning the need to "push" a coal dump and the difficulty experienced at the time with wet weather and apparently little progress. The applicant contends that Mr Lyle Burrell was not subject to warning or censure. This evidence is not challenged. 26 The applicant's evidence is that the warnings arising from those two incidents are over reactions by Mr Taylor and Mr G Samson, the Surface Manager employed by New Wallsend Coal from whom instructions were taken as required. 27 The applicant contends in his evidence that he and his father (also an employee of the respondent) were subject to continual harassment and unfair dealings by both Mr Samson and Mr Taylor. No evidence is brought by the respondent to refute these assertions. 28 The evidence of the applicant is that in a meeting with Mr Greg Ellison, Managing Director of the respondent, he and Mr Evans were advised that he could return to employment subject to any duty of care issues which Mr Ellison required to investigate. 29 The applicant was subsequently informed that there was no impediment on a duty of care basis, however, the client would not allow a return. 30 The evidence of Mr Evans is found in his statement (Ex 1) in the following terms: 3. In the first of those meetings, held on or around 23 April, Mr Ellison said words to this effect, "Once Mark returns a negative test he can return to the Pitt." 4. In the second meeting which occurred on or around 29 April 2002, after Mark had returned a negative test, Greg Ellison said words to this effect, "I need to check out if there are any duty of care issues involved in him returning to work." 5. In the third meeting, held on or around 1 May 2002, Greg Ellison said words to this effect, "The duty of care's fine but the Pitt doesn't want him so we're not going to put him back on. There are no positions. For me to give him another loader job at another mine site I would have to put someone else off and I'm not going to do that." 6. Sometime after this meeting I contacted the Mine Manager, James Cauldron, and asked whether Mark had in fact been barred from the site he replied with words to this effect, "He's not barred but we'd prefer he didn't come back on site." 31 Mr Kaine also introduced into evidence the Certified Agreement covering employees of the New Wallsend Coal Company (Ex 11). This is a comprehensive document providing wages and condition of employment. 32 Of particular relevance to these proceedings are the provisions relating to drug and alcohol policy found within Ex 11 which are appropriately set out below: 23.0 DRUG & ALCOHOL POLICY 23.1 The signatories to this agreement recognise that employees under the influence of performance debilitating substances represent a safety hazard both to themselves and those working around them. 23.2 Accordingly New Wallsend Colliery has adopted rules and procedures covering education counselling, random testing and the actions to be undertaken when an employee is suspected of being under the influence of performance debilitating substances. These rules and procedures will cover all personnel at New Wallsend Colliery. (Annexure 3) FIRST OFFENCE Transported home and not paid for shift, including bonus and interviewed by the undermanager, on or before the commencement of the offender's next normal shift. SECOND OFFENCE: (a) Same as first offence and to attend a meeting with the Mine Manager, Undermanager and Union Delegate and sent to E.A.P. for counselling and/or treatment. (b) A second offence occurring two (2) years after a first offence will be treated as a first offence with the exception that he/she will attend a meeting with the Mine Manager, Undermanager and Union Delegate. THIRD OFFENCE: Termination. OTHERS: The use of performance debilitating substances on the mine site will result in instant dismissal. Refusal of a test is considered to be an offence under this policy. All offences will be recorded on the person's file. 33 The evidence of Mr Ellison is that he had not observed any of the issues of conduct attributed to the applicant, relying entirely on reports from Mr Taylor and Mr Samson. Mr Ellison conceded that the Transport Industry (State) Award [2000] 315 IG 192 does not provide a requirement of three warnings as he contends in Ex 10. 34 It is Mr Ellison's evidence that he was called to a meeting with the Mine Manager, whom he could not identify, and Mr Samson, where he was told that Mr Burrell could not return to the mine site. From the evidence of Mr Ellison, Mr Cauldron, referred to as the Mine Manager by Mr Evans, is a senior executive officer of the New Wallsend Coal Company to whom the mine manager reports. 35 Mr Ellison's evidence is that a replacement employee is working in a satisfactory manner, attracting the approval of the client. 36 Mr Ellison further deposed that, whilst the contract for haulage extends into 2003, it is anticipated that the mine will close towards the end of 2002, bringing the contract to a premature conclusion. CONSIDERATION 37 The evidence of Mr Ellison is that the respondent is in the process of developing a driver policy manual (Ex 2) which includes a drug and alcohol policy. Mr Ellison conceded that this policy has not been implemented or communicated to employees as it remains in development. It is Mr Ellison's contention that drug and alcohol sanctions applied in the coal industry are insufficient for application in the transport industry. 38 I find the issues of conduct and behaviour are not made out. There is no direct evidence of inappropriate behaviour or that the issues were appropriately addressed by management. The investigation by Mr Ellison went no further than Mr Taylor and did not afford the applicant appropriate opportunity to provide defence or explanation 39 There may be issues of conduct that require attention by both the applicant and his supervisors. These should have been advised at the relevant time in an appropriate manner. 40 The grounds for termination of the applicant's employment is the expression of preference by the Colliery Manager and a desire by the respondent not to offend its client. 41 The requirement attributed to the Colliery management is significantly more severe than the requirement they place on their own employees. 42 Termination of employment on the whim or preference of a client not called to defend or deny that view is unsustainable. The attitude attributed to the Colliery management suggests a capricious and unreasonable use of commercial power to injure a third party in employment. Such external influence is, in my view, reprehensible and objectionable, made more offensive by failure of the external party to appear to defend the position attributed to it. 43 In consideration of the facts of this case against the criteria set out in s88 of the Industrial Relations Act 1996 ('the Act'), I find that the action of the respondent, influenced as it was by a third party, offends s88(a), s88(b), and s88(c) of the Act . 44 I find the termination of the applicant's employment to be harsh, unreasonable and unjust. 45 The applicant seeks reinstatement which, on the evidence in my view, is not impractical. I do not consider that satisfactory performance by a replacement employee or the alleged premature conclusion of the contract are reasons which mitigate against the practicality of reinstatement. 46 I order reinstatement of the applicant to his former position, without loss of wages or continuity of employment, in terms no less favourable than that occupied at the time of his termination. 47 Restoration of wages lost is reduced by earnings of $859.20, detailed in exhibit 13. Exhibit 12 is pay advice dockets for the applicant for the weeks of 16 April 2002, revealing gross earnings of $782.24; and 19 February 2002, revealing gross earnings of $929.88. 48 I assess restoration of wages be calculated at $850.00 per week, or $170.00 per day, for the 87 days from termination to 15 August 2002, the date of the ex tempore decision, and thereafter at that rate until the applicant is provided with employment in accordance with the orders issued herewith. 49 Placement of the applicant on truck driving, loader driving, or at another location within the respondent's operations is open to the respondent subsequent to reinstatement. oo0oo 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 Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDERS [2002] NSWIRComm 213 1. Pursuant to s89(1) of the Industrial Relations Act 1996 Westlakes Haulage & Earthmoving Pty Ltd is ordered to reinstate Mr Mark Burrell to his former position on terms no less favourable than those applicable had he not been dismissed. 2. Pursuant to s89(3) of the Industrial Relations Act 1996 Westlakes Haulage & Earthmoving is ordered to pay the amount of $13,930.80 (thirteen thousand, nine hundred and thirty dollars and eighty cents) to Mr Mark Burrell as wages lost to 15 August 2002 within 14 days of this Order; and thereafter at $170.00 (one hundred and seventy dollars) per day until compliance with Order 1 hereof. 3. Pursuant to s89(4) of the Industrial Relations Act 1996 the employment of Mr Mark Burrell is taken not to have been broken by the dismissal. I so order. The Hon. R W Harrison Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.