Industrial Relations Commission of New South Wales CITATION: Field v. Toll Transport Pty Limited [2005] NSWIRComm 1148 APPLICANT Transport Workers' Union of New South Wales PARTIES: RESPONDENT Toll Transport Pty Limited FILE NUMBER(S): 7081 of 2004 CORAM: Connor C contract of carriage - termination of contract - absenteeism and punctuality - warnings given - claim of unfair termination of contract CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Cherry v. Allied Express Transport (1997) 73 IR 305 CASES CITED: Deltec Internantional Couriers Pty Limited v. Transport Workers Union of Australia (1993) 50 IR 341 Little v. Commissioner of Police (No.2) (2002) 112 IR 212 Transport Industry (General Carriers) Contract Determination Case (1993) 46 IR 154 HEARING DATES: 06/14/2005; 09/02/2005 DATE OF JUDGMENT: 09/23/2005 APPLICANT Charlie Heuston Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Maurice Baroni Clayton Utz, Solicitors DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 23 September, 2005 Matter No IRC 7081 of 2004 Jason Field and Toll Transport Pty Limited, trading as Toll Priority Application by the Transport Workers' Union of New South Wales under S.314 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1148 Preliminary 1 Pursuant to the provisions of Part 4, Dispute Resolution, of Chapter 6, Public Vehicles and Carriers [S.314], of the 1996 Industrial Relations Act the Transport Workers' Union of New South Wales lodged an application on behalf of its member, Mr Jason Field, who was engaged as a contract carrier by Toll Transport Pty Limited (Toll Priority). He was engaged under the terms of the Transport Industry - General Carriers Contract Determination and a contract agreement - the Mayne Logistics Network (Sydney) Contract Agreement. (Toll had subsequently taken over the business from Mayne Nickless Limited, trading as Mayne Logistics.) Mr Field's contract of carriage with Toll was suspended on Monday, 8 November, 2004 and terminated on Monday, 15 November, 2004. The TWU has sought the reinstatement of Mr Field's contract of carriage with Toll (with compensation for loss of earnings from the date the contract of carriage was terminated to the date of reinstatement) or, alternatively, monetary compensation in lieu thereof. 2 The matter was allocated to me by Registry staff and set down for a preliminary hearing on Thursday, 16 December, 2004 and a conference on Wednesday, 19 January, 2005. Conciliation failed to settle the matter. I programmed it for arbitration. That hearing was scheduled for Tuesday, 14 June, 2005. Mr Heuston represented Mr Field and the TWU in the proceedings. He sought an adjournment of the matter but Mr Baroni, representing Toll in the proceedings, opposed the adjournment and the hearing proceeded and continued on Friday, 2 September, 2005. Mr Heuston called Mr Field to give evidence in the hearing. Mr Baroni called four employees of Toll as witnesses to give evidence in the hearing: Ms Ngatuaine Tairea, a radio operator, Mr Phil Lambie, the zone controller at the time that Mr Field's services were terminated, Mr Robert Sheargold, the fleet manager, and Mr Brian Baker, the shift manager. Jurisdiction 3 Where a contract driver's contract of carriage is terminated, the TWU, acting on his behalf, may pursue a claim in the form of a contract determination for its reinstatement or, alternatively, monetary compensation to the contract driver in lieu thereof. Such a contract determination for reinstatement may be made if the TWU satisfies the Commission that the termination of the contract of carriage was unfair - harsh, unreasonable or unjust, to use the language of S.84(1) for dismissed employees [the Transport Industry (General Carriers) Contract Determination Case (1993) 46 IR 154 and Deltec International Couriers Pty Limited v. Transport Workers Union of Australia (1993) 50 IR 341]. To that extent, the scheme of the legislative protection for contract drivers in Chapter 6 mirrors the scheme of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] for claims for the unfair dismissal of employees. In Cherry v. Allied Express Transport (1997) 73 IR 305 Peterson J commented on Chapter 6, confirming the view (at p.309) that: "…it seems to me to be appropriate to interpret the power as one which is to be applied in the same circumstances as apply to employees…" 4 My jurisdiction in this hearing arises by virtue of S.314(1) which reads as follows: "The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or a contract of carriage that has terminated." In terms of S.314(2) reinstatement extends to include "…re-engagement under a similar contract…" and in terms of S.314(3) the reinstatement: "...may be made on such terms and conditions as the Commission thinks fit, including provision for any period after the termination of the contract to be treated as a period of engagement under relevant contracts..." Which contemplates Mr Heuston's claim for monetary compensation for loss of earnings from the date that Mr Field's contract of carriage was terminated to the date of his reinstatement. 5 Following the same course as the remedy of reinstatement for dismissed employees in Part 6, reinstatement or re-engagement of a terminated contract of carriage under Ss.314(1) and (2) remain the primary remedies [Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346 and Little v. Commissioner of Police (No.2) (2002) 112 IR 212 at p.243]. However, there is also the remedy of monetary compensation in S.314(4) which reads as follows: "If the Commission considers that it would be impracticable to make a determination for reinstatement, the Commission may order the bailor to pay to the driver, or the principal contractor to pay to the carrier, an amount of compensation not exceeding the amount of remuneration of the driver or carrier under the relevant contracts during the period of six months immediately before the termination of the contract." In assessing the level of compensation under S.314(4) I am directed by S.314(5) to: "…take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received in alternative engagements, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements…" Background 6 Mr Field was initially employed as a dockhand with Wards Skyroads in 1992 and four years later he took up a position as a "floater" contract driver with Wards, ie he filled in for absent contract drivers with set run work. Mayne Logistics took over the Wards operations in 1997 and in 2001 Mr Field commenced a permanent all day designated delivery run from Bankstown airport (Hangar 61) to Penrith which he continued when Toll subsequently took over the contract up to the termination of his services on Monday, 15 November, 2004. 7 For contract drivers on the morning run they are expected to start at 6.00am and load their vehicles. It is Mr Sheargold's role to monitor the performance of contract drivers. He had formed the view that Mr Field was a good worker when he presented himself for work but his poor punctuality and attendance at work in general had been an ongoing problem. In particular, Mr Field was frequently late for his starts and Mr Sheargold diarized his frequent absences. He recorded in a witness statement which formed the basis of his evidence that Mr Field: "...was very often late and had a substantial amount of time off when he did not report to work at all. In the 2004 calendar year, prior to the termination of his employment...Mr Field was absent for approximately 64 shifts. Most of these were unexplained absences. However, some of them were explained, often with not very reasonable or reliable excuses. Mr Field regularly reported late to work at the top hangar, where he was initially required to report at the commencement of his shifts..." To assist him, Mr Field's start time was extended by Mr Baker from 6.00am to 6.30am and subsequently to 7.00am. But Mr Field continued to arrive at work late no matter how far the start time was moved for him. Actually, a later start would also effect Mr Field's earnings since some urgent matters, eg hospital deliveries, would have to be sent out by the casual "floater" drivers. 8 Mr Field attributes his poor attendance to an allergy he has suffered for some five years which gives him a rash, swells up his face and affects his vision. He takes medication for it but sometimes it is slow to work. Whilst Mr Field conceded in his evidence that he was frequently late, he asserted that he still left on his run at the prescribed time - 8.00am - which he achieved by simply loading his vehicle faster. He asserted that when he arrived earlier the loads were often not ready for him and he saw no real concern with his late arrivals provided he left on his run at the proper time. It was the time of delivery that was important in his mind and not the time of his arrival at the depot. 9 But I would believe that the arrival time at the depot would also effect delivery times and the uncertainty concerning Mr Field's attendance and punctuality clearly would create logical problems for Toll in organising the distribution of work for runs. I accept, even if Mr Field appears not to, that work for Toll carries with it the obligation on each one of its contract drivers to be at the depot and start their delivery runs at set times. Mr Sheargold also disputed Mr Field's claim that the loads were not ready earlier. 10 There are a series of warnings to Mr Field by Mr Sheargold. On Tuesday, 13 May, 2003 Mr Sheargold wrote to Mr Field in the following terms: "...You have missed 24 shifts since Monday, 13 January, 2003. Your attendance will be monitored every month and if it does not improve further disciplinary action may be taken. Your behaviour is unacceptable and will not be tolerated or condoned by this company and is considered a serious matter. As a result you are being issued with a file note..." On Wednesday, 20 August, 2003 Mr Sheargold wrote again to Mr Field: "...Since your verbal warning on Tuesday, 13 May, 2003 you have missed a further 8 shifts. Your attendance has been monitored every month and it has not improved. As a result I am issuing you with a first written warning. Your attendance will continue to be monitored and if it fails to improve further disciplinary action will be taken. Your behaviour is unacceptable and will not be tolerated or condoned by this company..." 11 Mr Sheargold's diary records that on Tuesday, 30 September, 2003 and Wednesday, 8 October, 2003 problems with Mr Field's punctuality at work were again raised with him. On Friday, 30 January, 2004 a further letter from Mr Sheargold to Mr Field (described by Mr Sheargold as a "verbal warning", notwithstanding the fact that it is in writing) confirmed that he was being issued with: "...a verbal warning for your continued failure to be at the depot at the agreed time of 6.30am. Your punctuality has been monitored every day and it has not improved. You have been spoken to on two occasions regarding your punctuality. Your punctuality will continue to be monitored and if it fails to improve further disciplinary action will be taken. Your behaviour is unacceptable and will not be tolerated or condoned by this company..." Mr Field signed that letter in acknowledgement of its contents. 12 In a further letter dated Tuesday, 16 March, 2004 to Mr Field (which Mr Field signed in acknowledgement), Mr Sheargold again spoke of Mr Field's: "...continued failure to be at the depot at the agreed time of 6.30am. Your punctuality has been monitored every day and it has not improved. You have been spoken to on two previous occasions and been issued a verbal warning regarding punctuality. As a result I am issuing you with a first written warning. Your punctuality will continue to be monitored and if it fails to improve over the next month further disciplinary action will be taken and, in the long term, could result in termination. Your behaviour is unacceptable and will not be tolerated or condoned by this company..." 13 On Monday, 10 May, 2004 Mr Sheargold wrote a second warning letter to Mr Field concerning his repeated failure to attend at the work depot at 6.30am, viz: "...Your punctuality has been monitored every day and it has not improved. You have been spoken to on two previous occasions and been issued a verbal warning as well as a first written warning regarding punctuality. As a result of this failure to improve, I am issuing you with a second written warning. Your punctuality will continue to be monitored for the remainder of this month and failure to improve will result in termination as a sub-contractor. Your behaviour is unacceptable and will not be tolerated or condoned by this company..." Mr Field refused to sign that letter. 14 On Tuesday, 31 August, 2004 Mr Field attended a counselling session with Mr Baker. It was stressed to him that there could be no further instances of unconfirmed days off as he had already reached his limit and any further unsubstantiated absences from work would result in Mr Field being removed from his current specified route and re-located to the bottom of the "floater" pool of drivers, substantially affecting his earnings. That procedure was consistent with guidelines attached to the contract agreement covering the Toll operations for contract drivers with excessive periods of non-engagement (which I will discuss in more detail later in this decision). Instead, it was agreed to place Mr Field back in the top hangar where he had formerly worked (and where, apparently, the impact on operations at that work site was less for late arrivals). His start time was moved back to 7.00am to assist him. 15 Notwithstanding those changes, however, his unpunctuality continued to be a problem. He was suspended on Thursday, 9 September, 2004 until Wednesday, 22 September, 2004 and he received a final warning from Mr Sheargold dated Thursday, 9 September, 2004 (which Mr Field signed in the space provided), viz: "...After you had been issued with a verbal warning and two written warnings regarding your punctuality, we had a commitment from you in the meeting of Tuesday, 31 August, 2004 that you would be in the depot each morning by the newly agreed time of 0700. You have failed on every occasion since this date to meet that commitment. As a result of this I am suspending you from duty for a period of two weeks commencing immediately. The date your suspension ends is Wednesday, 22 September, 2004. Your punctuality will continue to be monitored on your return and failure to improve will result in termination as a sub-contractor. Your behaviour is unacceptable and will not be tolerated or condoned by this company..." And on Wednesday, 20 October, 2004 Mr Sheargold received a final warning (which he refused to sign) to the following effect: "...I am issuing you a final warning for your continued failure to be at the depot at the agreed time of 0700. Your punctuality has been monitored every day and if you are late on one more occasion for whatever reason you will be terminated as a contract driver. Your behaviour is unacceptable and will not be tolerated or condoned by this company.." The Termination of Mr Field's Contract 16 For each morning or afternoon run, Toll's contract drivers are required to "call-on" whether or not they are on their way. That must be done before 5.30am for morning shift or 11.00am for afternoon shift to permit the organisation of work around any absences with "floater" drivers. If a contract driver does not "call on" it is marked on his attendance sheet that is absent. Some contract carriers contact Toll if they are not available to drive on any given day and some contract drivers apparently do not. To some extent, that represents a departure from an obligation set out in Clause 6, Responsibilities of the Contract Carrier, of the contract agreement covering the Toll contract carriers, viz: "...The contract carrier is to notify immediately the principal contractor of the contract carriers inability to perform contracts of carriage on any day..." 17 Rather than expecting the contract carriers to communicate their inability to attend on any day, Toll management concludes by their failure to make such contact that they will be absent and arranges for the deliveries to be allocated to casual "floater" drivers. But excessive absenteeism is also an issue for the contract drivers and guidelines are annexed to the contract agreement which set out steps to eliminate excessive absenteeism: counselling, written warnings, demotion to a non-designated "floater" driver with a loss of seniority (and remuneration) and, ultimately, termination of the contract of carriage. 18 For the morning shift on Monday, 8 November, 2004 Mr Field did not contact Toll and when that was brought to Mr Sheargold's attention he made several unsuccessful attempts to contact him on his mobile telephone. At around 10.30am Mr Field called in on the two-way radio to Ms Tairea and informed her that he was available for the afternoon run. Ms Tairea recalled Mr Field saying: "I'm calling on the two-way because I've misplaced my mobile, so I didn't have an alarm this morning and I don't have a landline at home. But I'm letting you know that I'm working this afternoon." Mr Field denies that he had informed Ms Tairea that he slept in or that he had misplaced his mobile telephone. 19 It is Mr Field's claim that on or around Thursday, 4 November, 2004, whilst he was checking his load, he had informed Mr Sheargold that he was intending to have his new van service, possibly on Saturday, 6 November, 2004, but if that was not available it would be done later during the following week. He believed that Monday, 8 November, 2005 would be the most convenient day for that to occur. In addition, Mr Field claimed that he had informed Mr Sheargold that he had a rental inspection of his premises on Monday, 8 November, 2004. Mr Field also asserted that he had given Mr Lambie similar information on Friday, 5 November, 2004 and told him that he would need to take off the morning of Monday, 8 November, 2004 for the rental inspection. 20 Neither Mr Sheargold nor Mr Lambie recall the conversation which Mr Field allegedly had with them. Mr Sheargold's recollection is that, whilst Mr Field informed him that he may require a day off work to have his van serviced, he neither mentioned any date for that would occur nor that there was to be a rental inspection. Mr Lambie asserted that some two weeks previously - approximately Monday, 25 October, 2004 - Mr Field had mentioned that he was intending to get his van serviced on Saturday, 6 November, 2004. Mr Lambie denied that such any conversation took place on Friday, 5 November, 2004 with Mr Field. No doubt, as Mr Heuston suggested in his cross-examination of Mr Lambie, some conversation is likely to have taken place between Mr Field and Mr Lambie but Mr Lambie is clear that Mr Field gave him no indication that he intended to take off the morning shift on Monday, 8 November, 2005. 21 And I understand that Mr Field did not, in fact, get his van serviced on Monday, 8 November, 2004, in any event. More likely, Mr Field simply slept in, as Ms Tairea claimed. Certainly, a document which Mr Baroni tendered into evidence outlining Mr Field's attendance at work records numerous occasions where the reason Mr Field gave for his absence from work was that he slept in and left his mobile telephone out of service. 22 Ms Tairea informed Mr Sheargold that Mr Field had "called-on" for the afternoon shift but Mr Sheargold informed her not to allocate work to him and he telephoned Mr Field again on his mobile telephone telling him not to start and that he would be suspended: "Don't start your afternoon run. You are suspended for not attending to-day and in the light of your excessive absenteeism while we investigate what we are going to do." 23 Mr Field was directed to attend a meeting in the Bankstown depot on Wednesday, 10 November, 2004. Mr Field's services were not terminated at the meeting. He was informed by Mr Baker that a decision would be made concerning the matter and on Monday, 15 November, 2004 a courier delivered a memorandum from Mr Baker to the following effect: "...You have been the subject of a number of counselling sessions over the past few months relating to your continued lack of punctuality and poor attendance. Subsequently, you received a two week suspension from duties on Thursday, 9 September, 2004 because of your ongoing failure to turn up for work at the time agreed. On Wednesday, 20 October, 2004 you were summoned to a further meeting and in the presence of witnesses (including a site TWU delegate) you were issued with a final warning regarding your punctuality. At this time it was made absolutely clear to you that any further instances would result in your services as a contract carrier being terminated. Given your failure to comply a further gathering was convened on Wednesday, 10 November, 2004... After considerable debate, the meeting was concluded with my statement that a decision on the outcome would be advised the following morning. After due consideration of all the circumstances, on Thursday, 11 November, 2004 I conveyed to the TWU delegates my intention to terminate your services..." Conclusion 24 I accept that all contract drivers are entitled to expect a certain amount of flexibility and independence in the performance of their work. They are not employees who are required to present themselves for work at prescribed times and paid according to the hours they work rather than the amount of work they actually perform. Contract drivers are invariably paid instead according to the deliveries they actually make and their failure to present themselves for work means that they receive less remuneration for that work. That is essentially a matter for them - and the amount of remuneration they wish to earn. The nature of the work of contract drivers is such that they enjoy a certain amount of flexibility in their working hours which is not ordinarily available to employees. 25 But the nature of Toll's business means that there is a requirement for the contract drivers it engages in its priority delivery service to present themselves for work at the prescribed times and the contracts of carriage under which they work obliges them to comply with that requirement. Mr Field's continued casual approach to his work sits at odds with that obligation - and his attitude is extraordinary in view of the numerous warnings he has received from Mr Sheargold that he was expected to improve his punctuality and attendance. If he wishes to retain less control on his activities he would need to seek work other than that to which Toll provides. 26 Mr Heuston submitted that the termination of Mr Field's contract of carriage with Toll was procedurally unfair, relying to that extent on the reasoning of the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Redman C) in Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 at p.389, viz: "…We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under S.84. Further…where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust…" 27 Mr Heuston argued that Toll did not strictly follow the steps in the guidelines annexed to the contract agreement covering the contract carriers. In the counselling session on Tuesday, 31 August, 2004 Mr Baker had threatened Mr Field with demotion as a non-designated "floater" driver but, ultimately that had not occurred and Mr Field's contract of carriage had been terminated - the last step in the guidelines. But, as Mr Baroni submitted in the hearing, there was not much use in demoting Mr Field to a non-designated "floater" driver, who would be expected to present himself at the depot at 5.30am for work when Mr Field could not even cope with a 7.00am start. 28 In my opinion, Toll management have been exceptionally tolerant with Mr Field. The final warning he received on Wednesday, 20 October, 2004 from Mr Sheargold was in unambiguous terms - "..if you are late one more occasion for whatever reason you will be terminated as a contract driver...". Technically, Mr Field was not late on Monday, 8 November, 2004: he simply failed to present himself for work for the morning shift. But I draw no real distinction between unpunctuality and absenteeism in this case. Both presented equal logistical problems for Toll in the organisation of its operations. And in the light of the evidence of Ms Tairea, Mr Sheargold and Mr Lambie, whose evidence I accept in preference to Mr Field, I conclude that Mr Field's absence from work on Monday, 8 November, 2004 was simply that he had slept in yet again. 29 In the circumstances, I see no grounds for my intervention in support of Mr Field and I decline to do so. P J CONNOR Commissioner 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.