Transport Workers' Union of New South Wales (on behalf of Paul John Richardson) and Linfox Australia Pty Ltd [2010] NSWIRComm 13

Industrial Relations Commission of New South Wales

CITATION: Transport Workers' Union of New South Wales (on behalf of Paul John Richardson) and Linfox Australia Pty Ltd [2010] NSWIRComm 13

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

FILE NUMBER(S): IRC 933 and 1075 of 2009

CORAM: Sams DP

TERMINATION OF EMPLOYMENT - industrial dispute - unfair dismissal - s 146A referral agreement - dismissal of employee in transport depot - failure to disclose he did not possess a valid drivers' licence - takeover of company - whether new entity knew employee had no licence - employee worked as an offsider but paid as a driver - principle of 'condonation' - failure to call witnesses - confusing reasons for dismissal - whether dismissal 'harsh, unreasonable or unjust' - procedural and substantive unfairness - reinstatement sought. CATCHWORDS: UNFAIR DISMISSAL - significant difficulties with respondent's case - failure to call any evidence - reliance on untested statement - evidence of employee accepted - both employer entities knew employee did not have a licence - principle of 'condonation' applies - employer waived right to terminate employment - false reason for dismissal - employee could not have breached employment contract - employee always worked as an offsider - dismissal 'harsh, unreasonable and unjust' - employee denied procedural fairness - no opportunity to defend himself - not told his employment was in jeopardy - employer's decision already made - unreasonable to ask employee to attend meeting while on annual leave - reinstatement primary remedy - reinstatement not considering employer's offer of re-employment - impractical - drivers' licence obtained - employee reinstated with orders for lost remuneration.