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. LEGISLATION CITED: Industrial Relations Act 1996 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 CASES CITED: Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37 Jones v Dunkel (1959) 101 CLR 298 New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 Outboard World Pty Limited t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 New South Wales v Commonwealth of Australia (2006) 156 IR 1 Sydney Ferries Corporation v Seamen's Union of Australia, NSW Branch on behalf of Levy (2009) 186 IR 99 HEARING DATES: 11 December 2009 DATE OF JUDGMENT: 15 February 2010 APPLICANT Mr G Selig Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr L D'Apice Linfox Australia Pty Ltd JUDGMENT: - 25 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 15 February, 2010 Matter No IRC 933 of 2009 Notification under section 130 of the Industrial Relations Act 1996 by Linfox Australia Pty Ltd of a dispute with Transport Workers' Union of New South Wales re NSW driving licence Matter No. IRC 1075 of 2009 Transport Workers' Union of New South Wales (on behalf of Paul John Richardson) and Linfox Australia Pty Ltd re: unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996 DECISION [2010] NSWIRComm 13 1 This matter proceeds by way of a dispute notification under s 130 of the Industrial Relations Act 1996 ('the Act') filed on 29 June 2009 by Linfox Australia Pty Ltd ('the respondent') and was subsequently followed by an unfair dismissal application, filed on 24 July 2009 by the Transport Workers' Union of New South Wales ('the Union') on behalf of its member, Mr Paul John Richardson. The two matters concern the same subject matter and were joined by consent on 11 December 2009. 2 It will be immediately apparent that the respondent is a constitutional corporation which would otherwise be bound to the relevant Federal legislation: See New South Wales v Commonwealth of Australia (2006) 156 IR 1. That said, the parties entered into a referral agreement, pursuant to s 146A of the Act, (that section has now been repealed), on 6 July 2009, which expressly sought the exercise of the Commission's conciliation and arbitration powers in respect to the following: …… to the intended termination of Mr Paul Richardson, a NSW Linehaul offsider working out of the Dubbo depot. Linfox intends to repudiate the employment contract arising from the false declarations of Mr Richardson to the fact of holding a valid NSW drivers licence at the time of his formal acceptance of the employment contract, and ongoing false declarations as to holding a valid NSW drivers licence. 3 The Commission chaired a private conference with the parties on 6 July 2009, and no settlement of the dispute could be achieved. Accordingly, and pursuant to the referral arrangements entered into by the parties, the Commission issued directions for the arbitration of the matter on 11 December 2009. THE EVIDENCE For the Applicant 4 Mr Richardson commenced employment with the respondent in November 2006 after the respondent purchased another company known as FCL Pty Ltd (FCL) on 31 August 2006. Mr Richardson had been employed as a casual offsider by FCL and retained this position and the same duties when the respondent took over FCL. 5 Mr Richardson became a permanent employee of the respondent in October 2007 and, notwithstanding that he retained the duties of an offsider, his letter of offer described his position as: Initially, you will be employed in the position of Route Delivery Driver Grade 2 as defined or described in TWU Award. In this role, you will be based at Blayney and report directly to CW NSW Regional Manager, Rail. 6 In most other respects the respondent's letter of offer appears to be a standard template document used for new employees. It includes the following relevant provision: LICENCE The nature of this role requires that you must at all times and at your own expense maintain a valid car driver's licence in order to fulfil the inherent requirements of the role. If you lose your licence or your licence is suspended for any reason you must notify your manager immediately. It is your responsibility to maintain a current car driver's licence. 7 It was a matter of some controversy that while the letter of offer was dated 23 October 2007, Mr Richardson did not sign it until 4 January 2008. I shall return to this issue later. 8 Mr Richardson said he was dismissed on 10 July 2009 because he did not have a drivers' licence. However, the letter of termination, in my opinion, was expressed somewhat more obscurely: "Dear Mr Richardson I am writing to inform you that Linfox Australia has decided to exercise its right, as per your employment contract, to terminate your employment effective from 10 July 2009. Linfox has made this decision based on your inability to perform the inherent requirements of your role. Linfox would like to thank you for your contribution to the business, and wishes you all the best in your future endeavours. Linfox will forward all outstanding monies, including your notice period, to your nominated bank account." 9 Mr Richardson maintained that both the respondent and FCL were aware that he did not possess a drivers' licence and he had never held one. At the time, and since, the work he performed as an offsider did not require driving work. Mr Richardson added that when he and the other FCL employees were offered positions with the respondent, they were all offered the same terms and conditions. To the best of his knowledge, they all accepted positions on that basis. 10 Mr Richardson deposed that, at the time of the acquisition of FCL, he spoke to a Manager of FCL, Mr Colin Gillett about the respondent's requirements for a licence as Mr Gillett had known that he did not have one. Mr Gillett had told him it would not be a problem and would be sorted out after the transition from FCL to the respondent was completed. Mr Richardson said that his employment contract with the respondent had attached to it a photocopy of his learners' permit and forklift ticket. 11 Mr Gillett was replaced as the Depot Manager in Dubbo by Mr Grant Cole. Mr Richardson deposed to a conversation with Mr Cole in November 2007, in which he told Mr Cole he did not have a licence because he only ever had a learners' permit, but this had expired when he had been fined for driving without a licence. Mr Cole asked him if he would like to get a truck licence and Mr Richardson said he would love to. The conversation finished and the issue was not raised again until early 2009. 12 Mr Richardson said that in early 2009 Mr Cole inquired as to his licence when he observed him parking a vehicle in the depot. He had driven vehicles in the depot from time to time. Mr Richardson told him he was in the process of getting his licence. He claimed that Mr Cole did not direct him, at that time, not to park vehicles in the depot. On 15 June 2009, Mr Cole again inquired of him as to whether he had obtained his licence. Mr Richardson said he was still trying to accrue the required amount of training hours. It was at this point that Mr Cole told him he required him to obtain a licence. 13 Mr Richardson deposed to another conversation with Mr Cole on 19 June 2009 in which Mr Cole told him the company required him to go back to being a casual as work was 'quiet' at the time. Mr Richardson said he did not want to go back to being a casual and the Company could not fire him from his permanent position. He denied Mr Cole's claim that he had agreed to change his employment status. Mr Cole had said he did not make the decisions and had just been told to tell him. Mr Richardson said he was going to talk to the Union delegate, Mr William Wilton. Mr Cole then asked about his licence and Mr Richardson said he had not been able to obtain it yet due to family commitments. Mr Cole suggested he take a week's annual leave to organise his licence and he agreed to take the time off. Mr Cole called him after Mr Richardson had unsuccessfully tried to contact him. Mr Richardson told him he would need a further two weeks to get the required training hours up before taking the test. Mr Cole agreed to extend his leave until Friday, 10 July 2009. 14 Mr Richardson said that during the last week of his leave (9 July 2009) Mr Cole had phoned him and told him he wanted him to come into the office as he had a letter waiting for him. Mr Richardson replied that he wanted to speak to Mr Wilton. Mr Wilton advised him not to attend the meeting while on leave and that he would advise Mr Cole of this instruction. The letter of termination (see para 8) arrived the next day at his home. 15 Mr Richardson deposed that he had tried to obtain alternative work in the Dubbo area, but had been unsuccessful. He had applied for positions at Dawson's Removals and Buck's Removals as an offsider and Fantastic Furniture as a storemen. He could not get his licence due to the financial hardship of his dismissal. He was $8,000 behind in his house repayments and was now renegotiating with his bank. Prior to his termination, Mr Richardson said he had earned $1,200 gross per week. He said that he had been unable to access Centrelink benefits until the middle of November because the respondent had issued him with a separation certificate which falsely stated that he had resigned. 16 In a reply statement, Mr Richardson attached his driving record obtained from the Roads and Traffic Authority (RTA). It describes various fines as follows: 01-07-2009 Learner Licence Issued (Class C) 01-01-2007 NOT COMPLY WITH CONDITIONS OF LEARNER LICENCE (NOT DISPLAY L SIGN (S)) $179 28-09-2006 STATE DEBT RECOVERY OFFICE $179 06-07-2006 NOT COMPLY WITH CONDITIONS OF LEARNER LICENCE (NOT DISPLAY L SIGN (S)) 28-09-2006 STATE DEBT RECOVERY OFFICE $590 06-07-2006 NOT COMPLY WITH CONDITIONS OF LEARNERS LICENCE (UNACCOMPANIED BY LICENSED DRIVER) 29-01-2006 NOT COMPLY WITH CONDITIONS OF LEARNER LICENCE (NOT DISPLAY L SIGN (S)) $175 27-11-2004 Learner Licence Issued (Class C) 20-03-1999 UNLICENSED DRIVER/RIDER – NEVER HELD A LICENCE – 1ST OFFENCE WITHIN LAST 5 YRS (TRAFFIC INFRINGEMENT NOTICE) $500 17 In cross-examination, Mr Richardson was shown his application for employment with FCL dated 30 October 2006. It disclosed, in the section headed, 'Car Licence Information', that he had added that he held a learners' licence #13319896 which had expired in 2007. Mr Richardson agreed that this licence was not valid due to his failure to pay the fines referred to in the above paragraph. 18 Mr Richardson further acknowledged that when he was offered, and had accepted, a permanent role with the respondent it was as a Route Delivery Driver, which required him to hold a current drivers' licence. This classification has a higher rate of pay than for an offsider. (I note that the relevant award classification requires a driver to drive a two axle rigid vehicle, with a gross vehicle mass of up to four and a half tonnes, and to drive a forklift with a capacity of four and a half tonnes.) 19 Mr Richardson said that he did not know why it took him three months to sign the letter of offer. However, he denied it was because he was seeking to obtain his licence. He added that throughout his employment, commencing with FCL and then as a casual, and as a permanent employee working for the respondent, he had only ever worked as an offsider. 20 Mr Richardson was shown a copy of the respondent's letter of offer to another of FCL's offsiders, Mr Tomas Lovedee, which indicated that his role was to be a Route Delivery Offsider Grade 1. (I note that this letter of offer also contained the same mandatory provision relating to holding a valid licence.) It was put to Mr Richardson that outside the workplace he behaved as if he had a licence, but when he went to work he told people he did not have a licence. However, he did not think this was unusual because everyone at work knew he did not have a licence. 21 Mr Richardson readily conceded that he had moved trucks around the depot when it was busy and said that his supervisors knew what he was doing. He could not remember the names of the supervisors he had asked. However, he now agreed that what he had done was irresponsible and unlawful. Mr Richardson agreed that Mr Cole had eventually told him to stop moving trucks, but for many months beforehand no one had said anything. 22 In re-examination, Mr Richardson was shown his application for employment with FCL which indicated his 'last and current position' was that of an offsider in a landscaping firm. 23 Mr Richardson was also shown a letter from the respondent, dated 29 November 2006, which advised all FCL employees of the terms and conditions of the transfer to the respondent. At 2.1 under the heading "What Will Not Change?" the following is recorded: "Your current terms and conditions: Other than as set out in paragraphs 1.1 and 1.2 above, you will be employed by Linfox on and from the Transfer Date in your current role and on the same terms and conditions as those you were entitled to with FCL immediately prior to the Transfer Date." 24 Mr Richardson said that, at no point during the discussions about the transfer, when he went from being an offsider at FCL to an offsider for the respondent, was he told by anyone from the respondent that he was required to have a licence. Mr Richardson further deposed that no one from the respondent had ever approached him after signing his offer of permanent employment to work as anything other than as an offsider. He agreed that despite the fact he was said to be a Route Delivery Driver and had been paid as such, he had only ever performed the offsiding duties in assisting loading and unloading vehicles. 25 Mr William Wilton is a permanent relief truck driver who had been employed by the respondent for 20 years. He is also the TWU delegate at the depot. Mr Wilton commenced working with Mr Richardson in October 2006. Mr Richardson assisted him in loading and unloading of his truck. 26 Mr Wilton recalled that on the first morning he worked with Mr Richardson (on a trip from Dubbo to Parkes) he had told him he did not possess a drivers' licence and had never had one. Mr Wilton thought this was unusual given the transport operations of the respondent. Mr Wilton said that Mr Richardson never made a secret of the fact he did not possess a licence and it was well known, including by the respondent's management and Mr Cole, that he did not have a licence. 27 Mr Wilton deposed to a conversation with Mr Cole in December 2008 in which they had discussed improving delivery services in the Dubbo area during the peak Christmas period. Mr Wilton suggested carrying out smaller deliveries by using a company utility. However, he told Mr Cole that both the offsiders would have to obtain their drivers' licences for this to occur. One of the offsiders was Mr Lovedee, who continues to be employed by the respondent as a casual offsider and still does not hold a drivers' licence. Mr Wilton said that Mr Cole agreed with his suggestion, but understood it could not be achieved because neither Mr Richardson nor Mr Lovedee were licensed to drive. 28 Mr Wilton said that when Mr Richardson had asked him about the respondent's desire to have him move from permanent to casual employment, he had contacted a Union Organiser, Mr Ken Hurst for advice. Mr Hurst advised him to tell Mr Richardson not to do so. 29 In cross-examination, Mr Wilton agreed that he was aware that when Mr Richardson became permanent his classification was as a Route Driver, Grade 2, although most drivers from the depot go from casual to permanent as Grade 5 drivers. Mr Wilton was questioned about his conversation with Mr Cole (in December 2008) and reaffirmed the contents of his written statement in that regard. 30 Mr Wilton agreed that he had seen Mr Richardson driving a truck in the depot on a number of occasions and that Mr Cole had also seen him do so. He accepted that Mr Cole had told him to stop on one occasion. For the Respondent 31 Mr Grant Cole provided a statement in the proceedings, but was not available for cross examination. Mr D'Apice had advised that Mr Cole is no longer employed by the respondent and, as he has just commenced new employment, he was most reluctant to take time off to attend the proceedings and be available for cross-examination. However, Mr Cole's statement was admitted, over the objection of the Union, but with the usual caveats as to its weight. 32 Mr Cole was employed by the respondent from October 2007 to August 2009. He was the Operations Supervisor responsible for the Dubbo depot. 33 Mr Cole said that around January 2008 when he visited the Dubbo site, he had spoken to Mr Richardson and Mr John Turner about upgrading their licences to 'Heavy Rigid', so they could drive trucks. Mr Richardson had said that would be good. Mr Cole said that around June 2008 he again raised the upgrading issue with Mr Richardson. However, as he showed little interest in doing so, he had not raised the matter again. 34 Mr Cole denied Mr Richardson's version of the conversation when he first saw him moving a truck in the depot. He said that, at no time, did Mr Wilton ever mention Mr Richardson not having a licence. Mr Cole said that in a visit to Dubbo in January 2009 he had observed Mr Richardson moving a truck in the depot and asked him if he had a truck licence. Mr Richardson had said 'not yet' and he then told him not to drive trucks again and that the respondent would assist him in getting his truck licence. Mr Cole strongly refuted the suggestion that he had allowed Mr Richardson to drive trucks without a licence. He had told him not to do so as soon as he found out he did not have a licence. 35 Mr Cole said that in May 2009, after he observed Mr Richardson getting a lift to work, he asked another driver, Mr Neil Davidson, why Mr Richardson did not drive to work. Mr Davidson had told him that Mr Richardson had lost his licence. Mr Cole said that about a week later he had discussed the matter with the Group's Human Resources Manager, Mr David Van den Berg. Mr Van den Berg had said that having a licence was a condition of employment and Mr Richardson was obliged to advise the Company if he had lost his licence. He had said the matter was very serious and that he (Mr Cole) should talk to Mr Richardson about when he was to obtain his licence. The respondent would then consider what action was to be taken. 36 Mr Cole referred to a conversation with Mr Richardson on 5 June 2009, in which Mr Richardson admitted losing his licence 12 months earlier because of outstanding fines. Mr Cole suggested he take some annual leave to sort the matter out and Mr Richardson had agreed to do so. 37 Mr Cole said that in another conversation with Mr Richardson on 16 June 2009, he learnt for the first time that Mr Richardson had only ever held a learners' permit and that he had been caught speeding whilst travelling without a licensed driver. Mr Cole reminded him that he had been asking him about upgrading his licence, unaware that he only ever had a learners' permit. 38 Mr Cole said he then had another discussion with Mr Van den Berg who had told him that Mr Richardson had knowingly signed an employment contract stating that he had a valid licence. The best the respondent could do was to offer him casual employment, until he obtained his licence. Mr Cole said that he would put that position to Mr Richardson. Mr Cole said that when he put this to Mr Richardson, he had initially agreed to do so, but later called back to say that Mr Wilton had told him not to revert to casual employment. Mr Cole agreed to further time off for Mr Richardson, which he commenced on 25 June 2009 for 12 days. 39 Mr Cole said that in early July 2009, Ms Gaylynne Neill, the respondent's Group Manager, Workplace Relations, told him that as it would take Mr Richardson two years to obtain his licence, and as he continued to refuse to change to casual employment, his employment should be terminated. Mr Cole told him of this decision on 11 July 2009. SUBMISSIONS For the Union 40 Mr G Selig, for the Union, posited five propositions as to why Mr Richardson's termination of employment was 'harsh' and 'unfair' and why he should be reinstated without loss of earnings and with continuity of employment. 41 Firstly, Mr Richardson was terminated for an invalid reason; namely, that he had failed to perform his inherent duties. Mr Selig submitted that the respondent has never indicated which duties Mr Richardson had failed to perform. He had always worked as an offsider, notwithstanding any offer of a permanent driving position. His real inherent duties had been as an offsider from the time he worked with FCL to the date of his dismissal. There was no evidence, nor could there be, of him not performing his inherent duties. Moreover, Mr Selig said that Mr Richardson had never lost his licence and he never needed a licence while performing his inherent duties as an offsider. Mr Selig noted that the contract of employment could not have been breached when it was pointed out that Mr Lovedee signed the same token employment contract, but he did not have a licence either. 42 Secondly, Mr Selig submitted that the respondent had known Mr Richardson did not hold a licence. The respondent had brought no direct evidence, contradicting Mr Richardson and Mr Wilton's evidence, that they had told the respondent he did not hold a licence. Mr Richardson had properly raised the matter with Mr Gillett, prior to the acquisition, and was told it would not be a problem. Mr Richardson was not challenged on this aspect of his evidence. The Commission would accept that the respondent had known, for a considerable period of time, that Mr Richardson did not hold a licence. 43 Mr Richardson had further deposed that the respondent had attached to his application for employment a photocopy of his learners' permit. Mr Selig said that the Union had served a notice to produce the employment application, but the call had not been answered leading to a Jones v Dunkel ((1959) 101 CLR 298) inference in that such evidence would not have assisted the respondent's case. Mr Selig further put that Mr Wilton's evidence, on this point, should be accepted. Even Mr Cole's untested evidence did not elaborate as to what parts of the conversations he had which he disagreed with. 44 Thirdly, Mr Selig put that Mr Richardson could not have breached the employment contract about not advising the respondent he had lost his licence, because he never had one to lose. 45 Fourthly, Mr Selig submitted that Mr Richardson's termination of employment has caused him substantial financial hardship. The penalty of dismissal was too extreme and he has not been able to find alternative employment in the Dubbo area. 46 Fifthly, Mr Selig proposed that the real reason for Mr Richardson's dismissal was because the business was quiet in the middle of the year, and if the respondent could offer him casual work and use him when it suited, it would save money. This evidence was uncontested, and was even supported by Mr Cole's statement in which he had said that Ms Neill had told him Mr Richardson was to be dismissed because he refused to revert back to casual employment. 47 Mr Selig submitted that there was no evidence as to why reinstating Mr Richardson would be impractical. There were no performance or disciplinary issues. Mr Richardson should receive the payment of lost earnings equating to $1,200 per week (this figure was not disputed by the respondent). Further, Mr Selig put that orders for reinstatement and compensation for lost earnings should be made pursuant to s 89(1) and (3) of the Act. 48 Mr Selig added that it had been the clear intention of Mr Cole to dismiss Mr Richardson at the meeting he had summoned him to. However, he did not attend on advice from the Union. Mr Richardson had no opportunity to respond to the prospect of his dismissal, nor respond directly to the alleged reasons for it. This was unfair, Mr Selig contended. For the Respondent 49 Mr L D'Apice submitted that Mr Richardson had falsified documents as far back as when he was employed by FCL by claiming that he held a valid licence. Moreover, he had a long history of driving unlicensed, both on public roads and in the depot. He had been caught at least four times. Mr D'Apice said that when he transferred to the respondent, Mr Richardson was deliberately offered a separate role to Mr Lovedee and was paid a higher rate for doing so. Mr D'Apice observed that it was most unusual as to why it took Mr Richardson three months to sign his offer of permanent employment. 50 Mr D'Apice said that the respondent intended doing the right thing by offering Mr Richardson a casual role, until he obtained his licence. Unfortunately allowing Mr Richardson time off on annual leave was not sufficient for him to get his licence. Mr D'Apice said that the respondent could not locate his employment application with the alleged photocopy of his drivers' permit attached, but, in any event, he had also falsified that document in 2006. 51 Mr D'Apice put that Mr Richardson purported to have a licence and was offered a job and paid on that basis. However, the respondent had not known until Mr Cole asked him about it. He had breached his employment contract and falsified the documentation. In these circumstances, the respondent merely exercised its contractual right to terminate the employment contract. Mr D'Apice speculated as to why Mr Richardson accepted a job as a driver without telling the respondent he did not have a licence and he continued to mislead the respondent. It did not matter that the respondent did not want him to drive – the respondent was obviously planning ahead. 52 Mr D'Apice said that Mr Richardson's conduct did not warrant his reinstatement. He had acknowledged driving illegally. It was illogical to suggest that the Depot Manager condoned his driving in the depot without a licence, as the respondent is very strict about safety. 53 Mr D'Apice submitted that the respondent made genuine efforts to assist Mr Richardson obtaining his licence by allowing him time off to do so. It was not unfair to dismiss him, with notice, when he could not do so. Mr D'Apice asserted that there were plenty of job vacancies in Dubbo. However, Mr D'Apice conceded that if Mr Richardson presented with a valid licence, the respondent might consider putting him back on. However, he did not believe someone should benefit from a trail of misrepresentation and it would be difficult for local management to accept him back. In reply 54 Mr Selig observed that until this minute, the respondent had never asked Mr Richardson to drive anything. He did not, and was not, required to work as a driver. Mr Selig said that the respondent's position was totally inconsistent. On the one hand it alleged Mr Richardson breached his contract, but Mr Lovedee had as well because he had signed his contract, acknowledging he had a licence, when he did not. The respondent had made no move against Mr Lovedee and was unlikely to do so. Mr Selig added that contrary to Mr D'Apice's submission, even Mr Cole had stated that he had suggested that Mr Richardson take leave, not that Mr Richardson had sought to do so. Postscript to Submissions 55 In accordance with Mr D'Apice's offer (see para 53), the Commission requested the parties enter into further negotiations should Mr Richardson obtain his licence in the short term. On 18 December 2009, the Commission re-listed the matter and was advised that Mr Richardson had obtained his licence the day before. The parties agreed to further conciliation, but despite some offers being put and considered, the matter remained unresolved. Accordingly, the Commission proceeded to deliberate on the matter and reserved its decision. CONSIDERATION 56 In my view, the respondent's case suffered from a number of obvious and significant difficulties. Principally these included, firstly, the failure to arrange for, or subpoena Mr Cole to give evidence in the proceedings. He was to be the respondent's only witness. The Commission may have been well inclined to refuse the tender of Mr Cole's statement when he became unavailable for cross-examination. However, the tender of his statement was permitted, subject to the usual caveats. It was plain enough from Mr D'Apice's submissions, that the respondent relied heavily on Mr Cole's versions of conversations between himself, Mr Richardson and Mr Wilton. The thrust of the divergence in the evidence was Mr Cole's insistence that he had not known that Mr Richardson did not have a drivers' licence until January 2009. As the argument was developed, it followed that Mr Cole had not condoned Mr Richardson's breach of his employment contract. I reject this submission. 57 Given the tested evidence of both Mr Richardson and Mr Wilton, who both said that Mr Cole had known Mr Richardson did not possess a licence, I accept their evidence in preference to Mr Cole's untested statement about this issue. The following matters fortify my findings in this regard: · Mr Richardson attested to a conversation with FCL's Manager, Mr Gillett, at the time of the respondent's takeover, in which Mr Richardson raised the issue of him having no licence and Mr Gillett's assurances that he need not worry about it. It was open to the respondent to subpoena Mr Gillett. It did not do so. I am satisfied that a Jones v Dunkel inference is available in that Mr Gillett's evidence would not have assisted the respondent's case. · Another Jones v Dunkel inference is available in that Mr Richardson deposed that attached to his employment application form was a photocopy of his learners' permit. In my experience, this would not be an unusual practice, and I accept Mr Richardson's evidence in that regard. When the Union sought to summons the documentation, nothing was produced. I am satisfied that the respondent knew, or should have known, Mr Richardson was unlicenced, when he signed his employment contract on 4 January 2008. · It seems very curious that the respondent did not question why Mr Richardson took three months to sign his permanent employment offer at the time. It seems to me to be open to conclude that the respondent expected the licence issue to be resolved during this time. · From a reading of Mr Cole's statement, (and accepting it for these purposes) it would appear he was taking instruction from Mr Van den Berg prior to Mr Richardson's dismissal and from Ms Neill as to Mr Richardson's actual dismissal. Neither of them were called to give evidence. In my opinion, this represented a serious gap in the respondent's evidence and raises a real issue as to who, in Management, was in fact making the decisions as to Mr Richardson's future employment. In addition, if other persons were making this decision, I cannot be satisfied that they were fully appraised of all the relevant circumstances justifying their conclusions. 58 Secondly, I have no doubt that the respondent waived its right to terminate Mr Richardson's employment. It was not in contest that, at no time, did the respondent seek to have him perform the work of a driver during the two years he worked exclusively as an offsider before his dismissal. In my judgment, it takes the respondent's case nowhere when it submitted that Mr Richardson was paid as a driver and had therefore been in breach of his contract of employment for misleading the respondent into believing he held a valid licence. The real question is not what an employee is paid or described as in a document, (particularly a template document of the kind identified in the evidence); the real question is what work he performed? In this case, there is no doubt that the respondent never asked, or required, him to work as anything other than an offsider. In any event, as I earlier found, the respondent knew, at all material times, that he did not possess a licence. 59 During the course of argument, I raised with Mr D'Apice the principle of 'condonation'. That principle has particular resonance in this case, and I refer to Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325, where a Full Bench said: In any event, we are satisfied the conduct of the appellant referred to has been condoned by the respondent or that it has waived any right it may have had to dismiss him for serious and wilful misconduct. As Macken J observed in Australasian Transport Officers' Association v Department of Motor Transport (1988) 25 IR at 235 at 244, "the doctrine of condonation has always formed a part of the law applied by the NSW Industrial Commission". In that respect, his Honour referred with approval to the following statement by Cook J in Clarke v Metropolitan Meat Industry Board [1976] AR (NSW) 16 at 25: "… where an employer with a full knowledge of an act amounting to misconduct justifying summary dismissal does not exercise the right which he thereby possesses but elects to treat the contract as still subsisting, then he is regarded in law as having waived the right of summary dismissal for that offence, or of having 'condoned' that offence, so that he cannot, therefore, in an action for wrongful dismissal based on misconduct, rely upon an offence which he has waived as justification for his action." 60 To further explain this principle in the context of this case, the respondent waived its right to terminate Mr Richardson's employment because it condoned his continued employment as an offsider and it cannot now call into issue any alleged breach of his employment contract for not possessing a valid licence. That 'condonation' extended to the fact that Mr Lovedee's contact of employment also required him to have a drivers' licence. It was readily acknowledged he does not have one and he continues to work for the respondent. In my view, the respondent was being a little too clever in raising Mr Lovedee's position during its case, when it so spectacularly backfired against it. Did Mr Richardson breach his contract of employment? 61 Strictly speaking, the Commission is not required to consider whether Mr Richardson was in breach of his contract of employment. This is so because the statutory mandate is for the Commission to find whether his dismissal was 'harsh, unreasonable or unjust' (see s 83 of the Act). However, the crux of Mr D'Apice's case was that Mr Richardson had breached his contract of employment and, presumably, his dismissal was neither 'harsh, unreasonable or unjust'. Even so, for the following reasons, I have serious reservations in accepting the respondent's submission that Mr Richardson was in breach of his employment contract. 62 The strict wording of the licence provision (see para 6) requires an employee to "maintain a valid car driver's licence." I ask rhetorically, how can one 'maintain a licence' if you never had one to begin with, and why must you notify your manager if you lose your licence if you never had one to lose? Even if I be wrong about the strict interpretation of the licence provision, the fact was that this clause - as with almost every other provision in the employment contract - was a template provision whose provisions were ignored by Management when it suited. Mr Lovedee's contract is the perfect example which demonstrates this point. 63 In my opinion, the respondent appeared to be confused as to the reasons for Mr Richardson's dismissal and this leaves the Commission, (not to mention Mr Richardson and the Union), unclear as to the real reason for his dismissal. The letter of termination describes the reason as "him being unable to perform the inherent duties of his role." Mr Cole's statement said Ms Neill had said "it would take 2 years (for him) to obtain his licence and he continued to refuse the change of employment status to a casual." In accepting the stated reason in the termination letter, I do not believe that it represented a true characterisation of Mr Richardson's position or the work he performed. In fact, it seemed to me that it amounted to a false reason for his dismissal. Mr Richardson was performing the inherent duties of his role and had been doing so without question, for two years. On the other hand, if one accepts Ms Neill's reasons, it was obvious Mr Richardson was not warned his employment was in jeopardy, if he did not revert to casual employment. No proposition was ever put to him along those lines. But, in any event, if this was the real reason for his dismissal it would undoubtedly be unfair for an employee to be dismissed for refusing to give up permanent employment. 64 In addition, documentation provided to all employees at the time of the takeover indicated as follows: "2. What Will Not Change? 2.1 Your current terms and conditions: Other than as set out in paragraphs 1.1 and 1.2 above, you will be employed by Linfox on and from the Transfer Date in your current role and on the same terms and conditions as those you were entitled to with FCL immediately prior to the Transfer Date." 65 There is no dispute that Mr Richardson continued with the respondent in the same role and with the same conditions as those which he was entitled to with FCL. He had not breached those terms or conditions. The fact that the respondent paid him a higher rate is, I believe, irrelevant. Was the dismissal 'harsh, unreasonable or unjust'? 66 For all the foregoing reasons, I am satisfied that Mr Richardson's dismissal was 'harsh, unreasonable and unjust' within the meaning of Pt 6 Ch 2 of the Act. I rely on the following extract from Byrne v Australia Airlines Ltd (1995) 185 CLR 410, where the expression 'harsh, unjust and unreasonable' was considered by the High Court, albeit in an award context: "--- It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." The expression was further discussed in Outboard World Pty Limited t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 182, where a Full Bench said: "--- First we deal with argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: "unfair" rather than "harsh, unreasonable or unjust" dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term "unfair") to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s 246 rather than the catch-all hearing, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase "harsh, unreasonable or unjust", we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s 275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, the appearing in s 88F of the 1940 Act, the Commission in Court Session (Perrignon, Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (new) 399 AT 418 (Cahill j delivering a separate judgment) said: "The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davies v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power." In much the same way, we consider that, while strict definitions of "harsh", "unreasonable" and "unjust" may produce a degree of circularity of meaning, turning on the notion of "fairness", it may be a given case that a dismissal may be viewed as coming within the ambit of one of the three objectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made." See more recently Sydney Ferries Corporation v Seamen's Union of Australia, NSW Branch on behalf of Levy (2009) 186 IR 99. 67 I am further satisfied that Mr Richardson's dismissal was procedurally unfair and in contravention of s 88 of the Act. See Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385; D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 and Humphries v Cootamundra Ex-Services and Citizen's Memorial Club Ltd (2003) 128 IR 37. 68 Adopting the principles discussed in the aforementioned cases, I find that Mr Richardson was denied procedural fairness in that: · he was never warned his employment was in jeopardy; · he was given no opportunity to defend his position or answer the allegations against him; · the reasons given for his dismissal were unclear, misleading and wrong; · the letter of dismissal is dated 3 July 2009 – six days before he was invited by Mr Cole to attend a meeting on 9 July 2009. Plainly, the respondent had made up its mind to dismiss Mr Richardson long before he was given any opportunity to defend himself. This was manifestly unfair; · it was unreasonable to terminate Mr Richardson's employment by letter on the Friday before he was due to return to work on Monday, 13 July 2009; and · it was not unreasonable for Mr Richardson to refuse to attend a meeting while on annual leave, without his Union official being present and without being told what the meeting was about. 69 The unfairness of Mr Richardson's dismissal was further exacerbated by; · the respondent putting a false reason (resignation) on his separation certificate, thereby complicating his access to Centrelink payments; and · the respondent claiming it offered to assist Mr Richardson by allowing him to take leave to obtain his licence. This was a disingenuous submission, given Mr Richardson was accessing his own entitlements to annual leave. Relief to be Ordered 70 Given my earlier findings in this matter and Mr D'Apice's concession (see para 53) that the respondent would be willing to offer Mr Richardson ongoing employment if he obtained his licence, I see no reason why Mr Richardson's reinstatement would be impractical. Reinstatement is the primary remedy for an unfairly dismissed employee: See Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 and New South Wales Nurses' Association on behalf of Debbie Ruddar v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89. 71 There was no evidence of poor performance or disciplinary issues involving Mr Richardson. His unfortunate driving record, referred to in the evidence, can be no basis for adversely reflecting on either his character or work ethic. Moreover, Mr Richardson has now obtained a valid drivers' licence. ORDERS Pursuant to s 89 of the Industrial Relations Act 1996 the Commission orders that: 1. The respondent, Linfox Australia Pty Ltd, is to reinstate Mr Paul Richardson to the position he held prior to his dismissal on 10 July 2009. 2. Mr Richardson's' employment is not to be taken as broken by his dismissal. 3. The respondent, Linfox Australia Pty Ltd, is to pay Mr Paul Richardson an amount equivalent to his lost remuneration from 10 July 2009 to today's date, less any remuneration received by him during this period. 4. Lost remuneration referred to in Order 3 shall be calculated at the rate of $1,200 per week gross. 5. The above orders shall take effect within 7 days of today. 6. Proceedings in matter IRC 1075 of 2009 and dispute notification IRC 933 of 2009 are concluded. Peter J Sams, AM 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.