Transport Workers' Union of New South Wales (on behalf of Darren Shiels) and Linfox Australia Pty Ltd [2009] NSWIRComm 167

Industrial Relations Commission of New South Wales

CITATION: Transport Workers' Union of New South Wales (on behalf of Darren Shiels) and Linfox Australia Pty Ltd [2009] NSWIRComm 167

APPLICANT Transport Workers' Union of New South Wales (on behalf of Darren Shiels) PARTIES: RESPONDENT Linfox Australia Pty Ltd

FILE NUMBER(S): IRC 843 and 877 of 2009

CORAM: Sams DP

INDUSTRIAL DISPUTE - dismissal of truck driver - strike action in support of reinstatement - unfair dismissal application - termination of employment with notice - failure to follow lawful and reasonable directions of Management - driver's transfer from Ingleburn to Chullora - flexible hours of work - failure to follow safety procedures - accident in yard - allegations of bullying and victimisation - fatality of driver - effect on dismissed driver - inappropriate emails to Company's owner - concern with health of driver - driver suspended on full pay - medical assessment - clearance to drive - resumed work in gatehouse - agreement to start and finish times - failure to follow direction - whether direction lawful and reasonable. CATCHWORDS: Held; no connection between Management's direction and allegations of bullying - contempt for warnings - no contrition - explanations not accepted - investigation into allegations of bullying and harassment - allegations not sustained - findings not challenged - request for transfer refused - driver didn't like being given direction and preferred to work alone - concession that directions lawful - principles of 'reasonable' - final directions not unreasonable - no reason why driver needed to be on site two hours before start time - driver agreed to directions then did the opposite three times - driver on notice that continued failure to follow directions may lead to dismissal - pattern of behaviour - employee no longer considers himself bound to employment contract - employer may terminate employment - no issues of procedural unfairness - dismissal not harsh, unreasonable or unjust - account taken of past record and driver's personal and economic circumstances - factors do not outweigh driver's conduct - application for relief from unfair dismissal refused - application dismissed and dispute proceedings concluded.