Industrial Relations Commission of New South Wales CITATION: TWU v Linfox Australia Pty Ltd [2008] NSWIRComm 1116 APPLICANT: PARTIES: Transport Workers Union of New South Wales (o/b Mr M Parker) RESPONDENT Linfox Australia Pty Ltd. FILE NUMBER(S): 551,552 of 2008 CORAM: Ritchie C Dispute notification and Unfair dismissal claim. Long term employee terminated after being involved in an incident, not reporting incident, not being candid in completing incident form. Company also claimed that employee had been involved in 5 blameworthy incidents. CATCHWORDS: Applicant claimed that not all of the incidents had resulted in direct costs of repairs being more than $500. Sought supporting evidence. None forthcoming. Employee did not believe he had been involved in one of the incidents. Commission found that employee had been involved in that incident and had failed to advise Company for fear of loosing job. Company conceded that this particular incident did not result in a direct cost to the Company. Commission found that Company should have provided supporting evidence of incidents costing more than $500 as that was a basis for termination. Commission found termination harsh, awarded reinstatement without backpay. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 28/08/08,29/08/08,27/10/08 DATE OF JUDGMENT: 31 October 2008 APPLICANT: Mr M Aird and Mr G Rodger of the TWU LEGAL REPRESENTATIVES: RESPONDENT: Mr L. D'Apice and Ms G. Neill of Lynfox Australia Pty Ltd. DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C 31 October 2008 Matter No IRC 551 of 2008 IN THE MATTER OF: Notification under section 130 by Transport Workers' Union of New South Wales of a dispute with Linfox Australia Pty Ltd re dismissal. Matter No IRC 552 of 2008. IN THE MATTER OF: Transport Workers' Union of New South Wales on behalf of its member Michael Parker re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2008] NSWIRComm 1116 Background. 1 The Transport Workers Union of New South Wales (the Union) filed a dispute notification on 29 April 2008 seeking the assistance of the Commission in resolving a dispute with Linfox Australia Pty Ltd (the Company) over the termination of Mr Michael Parker. 2 On the same day the Union filed an unfair dismissal application on behalf of their member Mr Michael Parker. 3 Both matters came before Stanton C for conciliation but were unsuccessful in resolving either and therefore were set down for hearing before the Commission as presently constituted. The hearing took place on 28 and 29 August 2008 with final submissions given on 27 October 2008. 4 On 22 August 2008 a Notice To Produce was directed to the Company by the Union. It required the Company to produce particular documents on Thursday 28 August 2008. At the commencement of proceedings on 28 August 2008 the documents were called for by the Union. The Company objected to the Notice To Produce stating the documents called for were not relevant. After hearing argument the Commission rejected Point 2 ruling that the Company had not been given enough time to comply. Point 3 was not pressed by the Union. 5 Point 1 of the Notice To Produce was expressed in the following fashion: All documents coming into existence between 3 August 2007 and the date of this notice recording the cost of repairs or other expenses incurred by Linfox in connection with incidents involving Mr Michael Parker occurring on 3 August 2007, 10 December 2007 and/or 29 February 2008. With respect to Point 1 the Company stated that such documentation was attached to the statement of Mr Warren Lane. I should note that the only document was an internal Company Incident Report Form attached to Mr Lane's statement Accident Details dated 29 February 2008. I note the following exchange that occurred between Stanton C and the Company's representative Mr D'Apice on 9 May 2008 at the first conciliation. COMMISSIONER: But the fact of the matter is if the matter goes further you believe that you've got the documentary evidence to support those quotations and the documentary evidence would be that you have invoices or tax invoices to cover those amounts. D'APICE: Correct, Commissioner Stanton. 6 Whilst 5 September 2008 was originally set down for final submissions, both parties sought for the date to be varied so as transcript would be available. A new date of 16 October was set. This date was subsequently vacated as the advocate for the respondent became seriously ill and could not attend. At the end of final submissions the decision was reserved. 7 A referral agreement in compliance with section 146A of the Industrial Relations Act 1996 (the Act) signed by both parties was filed with the Commission on 12 May 2008. Evidence for the Applicant. 8 Mr Michael Parker was the sole witness for the Union. He stated that he had worked for the Company for eleven years working in two yards. One being at Somesby and the other at Dairy Farmers at Berkeley Vale. Mr Parker drove a semi-trailer delivering groceries and milk. 9 He stated that he was terminated by the Company on 8 April 2008 under the Company's "three strike policy". The policy states that if you have three at fault accidents that require a repair bill in excess of $500 within a three year period that your employment can be terminated. 10 He said he was interviewed by his site manager Mr Warren Lane and Mr Len Bucca his contract manager, regarding damage to a letterbox caused by the truck he was driving on 29 February 2008. This letterbox is located adjacent to the driveway opposite Dairy Farmers driveway at Berkeley Vale. Mr Parker admitted that he used that driveway opposite the Dairy Farmers driveway on that day to reverse into Dairy Farmers. He stated that he did not hit the letterbox with the truck that he was driving. 11 On that day he said he was approached by a man named Dean who was the proprietor of a take away shop located adjacent to the letterbox. Dean accused Mr Parker of hitting the letterbox. Mr Parker replied that he did not think he did. Seeking to avoid a confrontation, Mr Parker went over to the letterbox to inspect the damage. The letterbox was leaning backwards at an angle. Both men sought to stand the letterbox upright. Mr Parker stated that this action was not meant as an admission of he damaging the letterbox but merely a kindly gesture to a neighbour. 12 This incident had been referred to as his fourth strike by the Company under the three strike policy. Mr Parker did not report the damage to his supervisor as in his view he did not cause the damage. 13 When interviewed by Mr Bucca about the damage to the letterbox and the truck, Mr Parker stated that he did not hear or feel anything. He said he helped to fix the letterbox purely as a gesture of goodwill. He said that he had not reported it to his supervisor, as there was no damage to anything. When told there had been damage to the prime mover Mr Parker offered to fix it. He was advised not to. He was advised to complete an incident report. He denied that Mr Bucca ever stated that he was not authorised to repair the damage himself. 14 Mr Parker was latter advised that the damage bill was $1710. Mr Parker then replaced the damaged bumper bar with a spare located in the yard and took the damaged part to a friends work shop and repaired it using plastic filler and paint. 15 Mr Parker stated that he obtained a letter from the Strata Management Agents to advise that no further action would be taken by the Owners Corporation against either himself or the Company for the damage to the letterbox. 16 In his view the cost of repairing the prime mover would not have been in excess of $50. He did the work because he was in fear of having another strike against him and therefore loose his job. It was also his view that drivers could carry out repairs to minor damage to vehicles. 17 Mr Parker noted that his third incident on 10 December 2007 was caused when he moved the prime mover tearing the air lines off. A few days later he was told by his manager Mr Warren Lane that the damage bill was $1500. Mr Parker rejected this amount as excessive and said he would get his own quotes. This bill was later reduced to $538.48. Mr Parker still believed this was excessive. 18 Mr Parker's second incident was damage caused to the corner of a trailer which occurred on 3 August 2007. The incident was reported and repairs were carried out totalling $1000. It was his view that the cost would have been less than $200. 19 In Mr Parker's statement in reply was that he was unaware of receiving a strike against him as a consequence of an incident in October 2005. He had a minor incident at night resulting in a very minor scratch on the left side passenger's door. He also said that he recalled an incident when he opened the back of the trailer and 16 crates of milk fell out. He tried to clean it up and restocked the crates and advised the cleaner. He was advised later that he should have reported the incident to Mr Lane. He was unaware that he had to report such an incident. Whilst he was spoken to about this incident he was not aware that it was a disciplinary meeting. 20 Mr Parker accepted that the accident he was involved in on 3 April 2008 was serious and the only one that would have cost over $500. 21 On 7 April 2008 Mr Parker accompanied by his Union organiser Mr Grant Rodgers attended the Company premises for a meeting with Mr Bucca and Ms Sweeney. A letter of termination was not accepted by Mr Parker and Mr Grant, because it lacked detail costs of the claims in regard to costs of repairs. 22 A further meeting was held on 9 April 2008 when the Company again failed to provide any further information on the claims. 23 Since his termination Mr Parker has worked for approximately 6.4 weeks. He said he has applied for work with nine named Company's, plus jobs over the phone. He said he has also registered with the Salvation Army job search programme. 24 In his final submissions Mr Aird criticised the Company's three strike policy. The Company had not produced evidence to support their claim that previous incidents that the Mr Parker had been involved in resulted in a direct repair cost of the damage caused to be over $500. He also stated that Mr Parker did not complete an Incident Form because he did not know he had hit the letterbox. He believed the termination was harsh as Mr Parker had been with the Company for over 11 years and at 57 years of age Mr Parker would have a great deal of difficulty in gaining employment. Evidence for the Company. 25 Mr Troy Lewis has worked for the Company since August 2000 and is currently the Northern Region Transport Manager based at Warnervale. He was relieving at Dairy Farmers at Berkley Vale from 18 February 2008 to 7 March 2008. He stated that on the morning of 29 February 2008, he was approached by a Mr Don Osborne. Mr Osborne advised him that a Linfox vehicle had turned into his driveway, and then reversed into the Dairy Farmers property collecting the letterbox and garden. Mr Lewis then reported this meeting to Mr Warren Lane the Operations Manager Dairy Farmers contract. He was told to go over and speak to Mr Osborne and assess the damage and see if he could describe the driver. This he did and Mr Osborne described the driver. He was asked to put it in writing, which he did (Ex 5). This was collected from Mr Osborne on Monday 3 March. He then reported back to Mr Lane stating that he saw red paint on the letterbox, the brackets were broken at the base and there were tyre marks in the rockery and garden. Later he sent a copy of Mr Osborne's letter to Mr Lane. 26 Mr Warren Lane stated that he had been employed by Linfox since January 2001 and was currently the Operations Manager. He is based at the Dairy Farmers depot at Lidcombe. He stated that in December 2006, he transferred to the Dairy Farmers contract at Berkley Vale where Mr Parker was employed. He was aware that Mr Parker had a previous strike notification carried across with him from the CML Somersby operation. The date of this notification was October 2005. Mr Lane said that on 21 June 2007 he issued Mr Parker with a verbal notification in regards to an incident which he failed to report. This was the incident when Mr Parker opened the back doors of the trailer and crates of milk fell out onto the ground. Mr Parker was issued with his second strike notification on 29 August 2007 with respect to an incident that occurred on 3 August 2007. This warning letter stated that it was the second incident within the three year rolling cycle and he was required to attend a Linfox defensive driving course. It also placed Mr Parker on notice that if he failed to satisfactorily respond by continually having blameworthy incidents then his employment may be terminated. 27 On 24 January 2008 Mr Lane spoke with Mr Parker concerning a strike notification. He said that he had spoken with Mr Bucca and was not going to give him a warning letter until he sent an email defending Mr Parker on the cost. Mr Lane's version of this meeting was different to Mr Parkers. On 29 January 2008 Mr Lane had a further meeting with Mr Parker when he issued Mr Parker with a verbal notification of the third strike in relation to an incident which happened on 10 December 2007. This letter read similar to the letter dated 29 August 2007 and again required Mr Parker to attend another defensive driving course. The cost had been reduced down to $538. Mr Parker called Mr Lane a liar and said he would get his own quotes. 28 On 29 February 2008 Mr Lane stated that he received a phone call from Mr Lewis advising him that a shop keeper from across the road had told him that a driver had hit the letterbox whilst reversing across the road. He told Mr Lewis to obtain a statement. That afternoon he drove up to Berkley Vale to inspect the damage. He saw the damage to the letterbox and the red paint to the bottom of the letterbox. He said that there was a tyre mark through the rockery and clear visible signs that a heavy vehicle had been in contact with the area. He then spoke to Mr Osborne. The same day he checked run sheets and was able to identify Mr Parker as the driver of the vehicle. He then spoke to Mr Chris Cohen the site delegate and advised him what he had found out. Several days later he approached Mr Cohen again who confirmed that he had spoken to Mr Parker. Mr Cohen told him that Mr Parker denied doing it and was not going to fill in an incident report. He again requested Mr Cohen to speak with Mr Parker and advise him to complete an incident report form. 29 On 5 March 2008 Mr Lane was a witness to an interview carried out by Mr Len Bucca. After the meeting Mr Parker completed the incident report. 30 A couple of days later Mr Lane was advised that Mr Parker had taken a corner piece of a guard from the Berkley Vale yard. He attended the yard and noted that one of the spare bumper bars was missing. Less than one week later it had returned and the vehicle that Mr Parker had been driving when the incident with the letterbox occurred was repaired and painted. 31 On 3 April 2008 Mr Lane was present when a meeting was arranged by Mr Bucca to meet Mr Parker at Berkley Vale. He said that he received a phone call informing him that Mr Parker had been involved in a car accident At Lane Cove. His truck had hit a vehicle when he was changing lanes. The actual cost of the damage was $12220. Both he and Mr Bucca attended the site. He drove Mr Parker back to the yard at Lidcombe where Mr Parker was drugged tested and an incident form was completed. Mr Parker was stood down pending an investigation into the incident. 32 Mr Len Bucca has been employed by the Company since October 1990 and is currently Contract Manager for the Dairy Farmers contract. He is based at the Company's Lidcombe site. 33 Mr Bucca first came into contact with Mr Parker when Mr Parker in September 2006 transferred from the CML Somersby operation to the Dairy Farmers contract. Mr Parker had a previous strike notification carried across with him from Somersby. His record showed that this notification was dated October 2005. Mr Bucca noted in his statement a verbal notification dated 21 June 2007, a second strike notification dated 29 August 2007 and a third strike notification on 29 January 2008 had been directed to Mr Parker. On the third strike Mr Parker was sent on a two day defensive driving course which he attended in February 2008. 34 On 29 February 2008 Mr Bucca received information from Mr Lane concerning a claim that a Company driver had caused damage to property. A Mr Osborne supplied a written statement plus a quotation for the damage incurred to his property. 35 Mr Bucca then commenced an investigation that indicated that a Mr Parker had been the driver of the vehicle that did the damage. Mr Lane also advised that another driver had informed him of damage to a vehicle whilst carrying out his daily inspection to the vehicle that Mr Parker had been driving the previous shift. Mr Bucca stated that he inspected the vehicle the next time it was at the Lidcombe depot and noted damage to the left side front bumper bar and paintwork above. The damage was consistent with the description expressed in Mr Osborne's letter. 36 No incident report with respect to this matter had been received by the Company. 37 On 5 March 2008, Mr Bucca met with Mr Parker and a Union delegate Mr Sam Abdullah. Mr Bucca stated that an accident had been reported by a proprietor across the road from the Berkley Vale depot and that Mr Parker had been identified as the driver. Mr Bucca asked why an incident report that had already been requested had not been completed. Mr Parker responded that he had not completed an incident report because he did not do it. He admitted that he had used the driveway to reverse into the depot and that he had helped a person straighten the letterbox, but he did not believe he had hit it. He had only helped to straighten the letterbox as a gesture of goodwill. He did not complete an incident report because there was no damage to anything. When Mr Parker was told there was damage to the prime mover he said that he would complete an incident report. When Mr Parker stated that he himself would fix the damage to the prime mover he was advised by Mr Bucca not to as the Company will organise the repairs as he was not authorised to do so. 38 A few days later it was reported to him by Mr Lane that another driver had seen Mr Parker taking a guard off the premises at the Berkley Vale depot. 39 Mr Bucca then contacted the IR Department of the Company to discuss the situation. 40 On 3 April 2008, Mr Bucca arranged to meet Mr Parker at the Berkley Vale depot. This was cancelled when Mr Lane received a call that Mr Parker had been involved in an accident at Lane Cove. Mr Parker was changing lanes and hit another car. 41 On 7 April 2008, Mr Bucca and Ms Sweeny met with Mr Parker, Union delegate Mr Cohen and Union organiser Mr Rodger. At this meeting Mr Parker was advised of the reasons for his termination but did not accept the letter of termination because it was not accompanied by detail costs of the previous strikes. The reasons as expressed by Mr Bucca were: failure to notify an incident, failure to notify damage to vehicle, falsified company document(incident report form), removal of company equipment and repair of vehicle without authorisation and had five strikes against him under the Company three strikes policy. 42 Another termination letter was produced on 8 April 2008 and given to Mr Parker on the following day at another meeting. In cross examination Mr Bucca accepted that the issue of Mr Parker carrying out repairs on the truck contrary to his instructions was not included in the written reasons for termination, but in his view they were part of the incident of 28 February 2008. 43 Mr Bucca also stated that he strongly refuted the claim by Mr Parker that it was acceptable for drivers to carry out repairs to minor damage to vehicles. The only exception is that drivers are responsible for the replacement of broken taillight lenses. 44 In final submissions Ms Neill for the Company accepted that the incident that occurred on 28 February 2008 had not resulted in a direct repair cost to the Company as the vehicle had not been officially repaired and the letterbox was not going to be repaired. Notwithstanding that acceptance, Ms Neill stated that the incident that the applicant was involved in on 3 April 2008 would take him back to his 4th strike. Also that Mr Parker had failed to notify the Company of the incident on the 28 February 2008 and therefore allowed the vehicle to be driven without it being inspected. Also the honesty and integrity of the Company's drivers was paramount to the employment relationship especially on sites that have limited supervision. The removal of Company equipment by Mr Parker to fix the damaged vehicle was unauthorised and contrary to the instruction of Mr Bucca. Consideration and Decision. 45 As noted above the Company took into consideration a number of issues that resulted in the termination of Mr Parker. In his defence Mr Parker could not recall receiving a letter dated 29 August 2007 entitled WARNING LETTER. It was stated in this letter that the first incident was recorded on 12 October 2005. It went on to state that this was Mr Parker's second incident within the three year cycle where he had been deemed blameworthy. 46 Mr Parker recalled receiving a letter dated 29 January 2008 entitled WARNING LETTER. This stated that it was Mr Parker's third incident within the three year cycle where he had been deemed blameworthy. It also stated that the second incident was recorded on 29 August 2007. 47 It would seem to me that an appropriate action for Mr Parker to have taken at the time of receiving the letter dated 29 January 2008 if he had any doubts concerning its contents, would have been to query the background to the previous strikes. If he had not received satisfaction then he should have at the time sought assistance from his Union. 48 The Company stated that the fourth incident concerned the damage to the vehicle and the letterbox on 28 February 2008 with the fifth incident being the collision with another vehicle at Lane Cove on 3 April 2008. 49 It was Mr Parker's defence that whilst he acknowledged that he was terminated for breaching the Company's three strike policy he did not believe that the strikes that had been marked against him individually were of the value of in excess of $500. In his view he should have only had two strikes against his record. The first being in October 2005 and the second in April 2008. 50 In his witness statement Mr Parker stated that he did not hit the letterbox. That was also what was told to Mr Bucca by Mr Parker at the meeting on 5 March 2008. The very basis of Mr Parker not completing an incident report was because he did not do it. Included in his statement in evidence Mr Parker stated that: " I did not hit the letterbox with the truck that I was driving." Under cross-examination he at first stated that he did not hear it or feel it. Later in response to a question from the Commission he admitted that he did hit the letterbox and then later in cross-examination he stated that he did not hit the letterbox. Both Mr Bucca and Mr Lane gave evidence that Mr Parker would have had to have realised, when reversing the vehicle, that he had gone over the garden/rockery that surrounded the letterbox. The front left hand side of the prime mover would have been raised as the tyres mounted the rockery. Mr Lewis stated that when he inspected the letterbox there was red paint on the letterbox, the brackets were broken at the base and there were tyre marks in the garden/rockery. Mr Lane stated that when he inspected the letterbox on the afternoon of 29 February 2008 he also saw that there was damage to the letterbox, red paint on the bottom of the letterbox and a tyre mark through the rockery. In his view, there were clear visible signs that a heavy vehicle had been in contact with the area. Having noted the photos in evidence of the letterbox and the surrounding garden/rockery I accept the evidence of Mr Bucca and Mr Lane that on the balance of probability Mr Parker would have been aware that the vehicle he was driving did mount the garden/rockery and hit the letterbox. I have also noted the letter signed by Mr Osborne that became evidence. It detailed an eyewitness account of a Linfox prime mover and trailer reversing and in doing so, the left hand side of the prime mover colliding with the mailbox and he bringing this incident to the attention of the driver whom he physically described in his correspondence. In giving weight to this evidence, I have also taken into consideration that Mr Osborne was not subject to cross-examination and he stated that the incident took place on 29 February 2008. This incident occurred on 28 February 2008. It is therefore my finding that Mr Parker whilst reversing his vehicle did mount the rockery/garden and hit the letterbox and was aware of what he had done. Mr Parker stated as a good will gesture, he with Mr Osborne assistance sought to push the letterbox back up to its original position. It is my view that this action of Mr Parker's was to try and rectify the damage of what he knew he was responsible for. The subsequent failure of Mr Parker to automatically complete an incident report was in my view an attempt by Mr Parker to avoid any investigation that he knew would surely follow. He knew of the Company's three strike policy and the probable ramifications to his employment. 51 When he did complete the incident report on 5 March 2008 he stated under the heading Full incident description: Got to Berkley Vale could not turn around drove in driveway across road and reversed into yard about 15 minutes later someone from shop across rd said I hit letterbox went over and give him a hand so to straight it up but I did no hear a bang or scrape, so I can't say that I did 52 It is my finding that Mr Parker in completing that incident report was not completely candid with the Company. It is my finding that Mr Parker was aware of what damage his vehicle had done to the letterbox and what damage the vehicle itself had sustained, but did not state this when given the opportunity. He therefore misled the Company. 53 Mr Bucca stated that he told Mr Parker at the meeting on 5 March 2008 that he was not to fix the damage to the prime mover, the Company would organise to repair as he was not authorised to do so. Mr Parker stated that all Mr Bucca responded when Mr Parker advised that he would repair it himself was "I would not advise you to. " It is my view that Mr Parker was put on notice by Mr Bucca not to carry out the fixing of damage to the vehicle, but did not comply. It is also my view that Mr Parker chose not to comply with the direction given by Mr Bucca so in some way reduce the possibility that another strike would be added to his name. 54 The Company's three strike policy states in part the following : On a three year rolling cycle there is a defined procedure where after investigation, the operator of our vehicle plant or other equipment is identified as blameworthy. This means that they directly contribute to or failed to avoid an accident that in the circumstances a competent operator performing the task legally could have avoided. Incidents or accidents will be classified into two categories having regard to the direct repair costs of the damage caused. Those incidents or accidents with a cost of less than $500 will attract a penalty of 0.5 and those of more than $500 will attract a penalty of 1.0 The Policy goes on to say that where an employee records Penalty Point Equivalent 4.0 their employment is terminated. 55 The Notice of Termination letter directed to Mr Parker stated that he had recorded his 4th strike as per the Company's 3 strike policy, he failed to notify the Company of the incident that occurred on 29 February 2008 and that the Company believed he falsified information regarding that incident and therefore was terminated. 56 The Three Strike Policy of the Company is based on employees being involved in blameworthy incidents. A series of such incidents within a three year period can lead to termination. It was argued throughout this case by the Union that they had sought details from the Company supporting the Company's claim that the incidents involving Mr Parker had a direct repair cost of more than $500. A Notice to Produce was served on the Company seeking such information. No such information was forthcoming notwithstanding the comments made by the Company's representative on the day of the conciliation. I believe it appropriate that where an employee receives a strike against him and that employee requests from the Company evidence of the direct repair cost of the damage then such evidence must be provided. As an employee's job could well be on the line, providing appropriate documentation can only support the Company's actions. I see no difference in where an employee who is counselled for paper work errors and therefore poor work performance should be shown the actual paperwork where the mistakes were made. The Commission is being asked by the Company to accept at face value that the previous blameworthy incidents resulted in a direct repair cost of the damage caused amounted to more than $500 but has not provided any supportive evidence that they did. It would be unfair on Mr Parker for such acceptance by this Commission to occur. 57 As I have expressed earlier in my considerations, it is my finding that Mr Parker did hit and damage both the letterbox and the Company vehicle. His failure to report the incident and therefore failure to comply with Company policy and then his subsequent denial of hitting the letterbox was a serious error of judgement on his part. Clearly his concern was the ramifications to his future employment. He had been with the Company for some eleven years. No evidence was brought before the Commission as to any previous incidents prior to 2005. I also did not perceive any animosity between the parties that would result in a poor working relationship in the future. 58 The Union has claimed reinstatement and back pay on behalf of Mr Parker. I am not prepared to agree to such a claim in its entirety. It is my finding that the termination of Mr Parker was harsh and he therefore should be reinstated. In arriving at that finding I have taken into consideration the lack of evidence to substantiate the blameworthy incidents, the length of Mr Parker's service and his age. It is also my finding that there should be no order for back pay in this reinstatement. As previously expressed in this Decision, I have found that Mr Parker knowingly hit the letterbox damaging it and his vehicle, his failure to report the incident and the subsequent failure to complete the Incident Report Form accurately. I make the following Order: ORDER 1. Under section 89(1) of the Act I order that Linfox Australia Pty Ltd reinstate Mr Michael Parker to his former position as a truck driver on terms no less favourable to Mr Parker than those that would have been applicable if Mr Parker had not been dismissed. 2. Under section 89 (4) of the Act I order that the period of employment of Mr Parker with Lynfox Australia Pty Ltd is taken not to have been broken by the dismissal, but that period between the date of Mr Parker's termination and his reinstatement shall not be taken into consideration when determining Annual Leave and Long Service Leave benefits. 3. That I decline to make an order under section 89(4) of the Act 4. That this Order must be complied with within 21 days of the date of this Decision. D RITCHIE 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.