Industrial Relations Commission New South Wales Medium Neutral Citation: Moulds v Toll Transport Pty Limited, trading as Toll Priority DX Solutions [2011] NSWIRComm 1032 Hearing dates: 1 July, 2011 Decision date: 21 July 2011 Jurisdiction: Industrial Relations Commission Before: Connor C Decision: Application for the reinstatement of a contract of carriage declined Catchwords: CONTRACT OF CARRIAGE - transport industry - termination of a contract of carriage - fitness to perform driving duties - conflicting medical advice Legislation Cited: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Cherry v Allied Express Transport (1997) 73 IR 305 Deltec International Couriers Pty Limited v Transport Workers Union of Australia (1993) 50 IR 341 Little v Commissioner of Police (No 2) 112 IR 212 Transport Industry (General Carriers) Contract Determination Case (1993) 46 IR 154 WorkCover Authority of New South Wales v Hitchcock (2004) 135 IR 377 Category: Principal judgment Parties: Transport Workers Union of New South Wales (Applicant) Toll Transport Pty Limited, trading as Toll Priority DX Solutions (Respondent) Representation: Stephen Bull, Transport Workers Union of New South Wales (Applicant) Daniel O'Sullivan (Respondent) File Number(s): IRC 1379 of 2010 DECISION BACKGROUND 1Pursuant to the provisions of Part 4, Dispute Resolution, of Chapter 6, Public Vehicles and Carriers [s.314], of the Industrial Relations Act 1996 , the Transport Workers' Union of New South Wales has lodged an application on behalf of its member, Mr Barry Moulds, who was engaged by Toll Transport Pty Limited, trading as Toll Priority DX Solutions, for 19 years until Monday, 11 October, 2010 when his services were terminated. The TWU has sought the reinstatement of the contract of carriage between Mr Moulds and Toll Priority. The matter was allocated to me and I set it down for a preliminary hearing, in the nature of conciliation, on Thursday, 23 December, 2010 and adjourned for further mention on Thursday, 24 February, 2011. 2Conciliation failed to settle the matter. I programmed it for arbitration which was set down on Thursday, 30 June, 2011 but it was necessary for me to vacate the hearing to attend a funeral of a former colleague. The hearing was scheduled for Friday, 1 July, 2011 instead. Mr Bull represented Mr Moulds and the TWU in the hearing. He called Mr Moulds and Mr Robert Rignall, another Toll Priority contract carrier (and yard TWU delegate) to give evidence in the hearing. Mr O'Sullivan represented Toll Priority in the hearing. He called three witnesses to give evidence in the hearing: Ms Margaret Stefanovska, the Toll Priority national risk manager, Mr Brett Buffett, a fleet supervisor (mornings), and Mr Jeff O'Flynn, a terminal manager. 3Mr Moulds is now 74 years of age. He suffered a slight stroke whilst at work on Tuesday, 13 July, 2010 and was taken to hospital. After his release from hospital he sought to resume duties with Toll Priority. He had a medical certificate from his attending physician that he is fit for work but Toll declined to allocate work to him and subsequently terminated his services, essentially on medical grounds, ie notwithstanding the advice given by his attending medical practitioner, its concern over his fitness to perform work for it. Toll had arranged for Mr Moulds to attend for an evaluation of Mr Moulds's medical condition by another medical practitioner and the advice of that medical practitioner is not as positive. JURISDICTION 4My 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." 5In terms of S.314(2) reinstatement extends to include "...re-engagement under a similar contract...". Following the same course as the remedy of reinstatement for dismissed employees in Part 6, Unfair Dismissals, of Chapter 2, Employment [ss.83 to 90] of the State IR Act, reinstatement or re-engagement remain the primary remedies [ Little v Commissioner of Police (No.2) 112 IR 212 at p.243]. Whilst the Part 4 application lodged by the TWU on behalf of Mr Moulds primarily sought the reinstatement of his existing contract. Mr Bull has submitted that, as an alternative, Toll Priority should provide Mr Moulds with a level of monetary compensation 6Alternatively, s.314(4) 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." 7In 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..." 8In other words, as Mr O'Sullivan submitted, the scheme of the legislative protection for contract drivers mirrors the scheme of s.89 for claims for the unfair dismissal of employees under Part 6. 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..." 9Therefore, where a contract driver's contract of carriage is terminated, the TWU, acting on his behalf, would be entitled to pursue a claim for its reinstatement under s.314(1) or monetary compensation in lieu thereof under s.314(4) if it 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]. THE EVIDENCE 10At present, Toll Priority engages 96 contract carriers performing daily runs in the Sydney metropolitan area, including the Blue Mountains, with a varying number of stops and items - from 50 stops to 100 stops per day and from 100 to 300 items per load apparently. Each item is loaded and unloaded by hand. A trolley is on board the vans to assist in moving heavy boxes or the multiple tubs of mail than can weigh up to 35kgs. Mr Moulds was responsible for the run to the stores and officers of Harvey Norman Holdings Limited and included ad hoc deliveries. Mr O'Flynn estimated that the run ordinarily performed by Mr Moulds involved approximately 35 stops per day. Mr Moulds disputes that estimate by Mr O'Flynn. 11Mr Buffett claimed that Mr Moulds had approached him in early 2009 and told him that his run was getting too much for him to handle and that he could not cope with the weight of some of the bags and cartons he was required to deliver. Toll Priority made changes to the run to accommodate him. However, Mr Mounds also denies that claim by Mr Buffett. He asserts that his concern at that time was only that he did not overload his van because to do so may lead to him being fined. Naturally enough, Mr Buffett asserted in his evidence that Toll Priority would never contemplate overloading the vehicles of its contract drivers. 12On Tuesday, 13 July, 2010 Mr Moulds commenced work. He loaded his van and drove to Harvey Norman's mail room at Homebush West. When he arrived at the mail room he commenced unloading his van. He claimed in a statement which formed the basis of his evidence that he "...got wobbly..." on his left side. The Harvey Norman manager rang for an ambulance and he was taken to Auburn District Hospital. Toll Priority was also informed that Mr Moulds had been taken to hospital. He was informed by his attending physician that he had suffered a slight stroke. He was discharged from the hospital after four days. He went home. He claimed he felt normal but for some time he did not attend for work or drive privately. 13Upon Ms Stefanovska being made aware of the incident by an e-mail from Mr Buffett, she contacted the hospital to be informed that Mr Moulds had suffered a mini-stroke. She subsequently spoke to Mr Moulds on his mobile telephone and Mr Moulds confirmed that he had suffered a mini-stroke. Ms Stefanovska concluded the conversation with Mr Moulds: "Keep in touch and let Mr O'Flynn know when you believe you will be fit to return to work. Before you come back you will need to attend a medical review with one of our preferred doctors." 14According to Ms Stefanovska, Mr Moulds indicated that he understood that he would need to get a medical clearance and later she confirmed that to Mr Rignall who contacted her and informed her that Mr Moulds wished to return to work. Ms Stefanovska also recalled a telephone conversation she had with Mr Moulds in late July, 2010, viz: Mr Moulds: I want to come back to work. Ms Stefanovska: Barry, you know you can't come back until you have had a medical appointment with one of the preferred doctors and you've been cleared to return. Mr Moulds: Can you arrange that? Ms Stefanovska: Yes, I am in the process of arranging one for you. I will forward you a letter of the time and location of the appointment. 15Ms Stefanovska made arrangements for Mr Moulds to be examined by Dr John Barlow (the Bankstown Family Medical Practice). Dr Barlow is on the panel of preferred medical practitioners which Toll Priority engages for medical advice. They are used, according to Ms Stefanovska, because they are familiar with the work carried out by Toll. 16The appointment with Dr Barlow was scheduled for Wednesday, 4 August, 2010. According to Mr Moulds that appointment with Dr Barlow was Tuesday, 10 August, 2010 but since Dr Barlow's ultimate report to Toll Priority was dated Monday, 9 August, 2010, Mr Moulds is clearly incorrect in that respect. In fact, I have had some difficulty reconciling dates on which Mr Moulds suggests certain events took place and other evidence of those events in this hearing. I cannot be confident of many of the time of many of those events. 17In any event, Mr Moulds became concerned over Dr Barlow's conduct while he was examining him. He recorded in the written statement which formed the basis of his evidence in this hearing: "....This appointment did not go well. Dr Barlow was testing my strength and reflexes. He was pulling my arms and checking my eyesight. He then placed me on a table. I was lying down on my back. I was fully clothed and he placed his hands down my trousers and I believe touched my penis. I said: 'I didn't come here for that.' He said: 'You have a bit a bit of hernia there, what are you going to do about it?' I said: 'Nothing, it does not affect me.' After this, I got up and left and did not want to continue with the consultation..." 18Mr Moulds had also visited his own attending general practitioner - Dr Michael Malouf -who prescribed some drugs to him for his diabetes (which he is still taking). He was referred by Dr Malouf to a neurologist - Dr Grant Walker - who on Monday, 2 August, 2010 provided a report to Dr Malouf, viz: "....An echocardigram at Auburn showed no abnormalities and it was found that his HbAiC was 7.9 and his cholesterol 8.1. I think you had discovered that he had diabetes a month previously and was trying to treat it with diet only and you had commenced him on some Asprin as well... His C/T showed what seemed to be an evolving infarct in the right internal capsule but there were also clearly other discrete lacuna infarcts. Fortunately, his carotid dopplers showed plaque only. Mr Moulds was put onto Metformin, Lipitor 40mg and Asasantin. Prior to that he was niot taking any medications. He is a non-smoker. His father died of a mycardial infarction but he was in his mid 70's. On examination Mr Moulds looked reasonably well. His blood pressure was borderline at 140/90. There were no particular abnormal neurological signs and he himself thinks that he has made a full recovery. I told Mr Moulds that he was very lucky that he had such a minor clinical event, given that he has probably had untreated vascular risk factors now for some time. I told him that the medications appeared appropriate but that his blood sugar and cholesterol level would need to be checked by you in a few weeks time. I think that he is fit to return to driving and I did not feel that any further neuro-radiology would change his management. I have not made any arrangements to see him again..." 19When Mr Moulds presented himself at work - twice - he was told by Mr O'Flynn: "Barry, you've had a stroke. You can't come back to work until you've been cleared by a Toll doctor. I'll get Ms Stefanovska to set up a return to work medical for you." 20Mr O'Flynn sent Mr Moulds home. And Ms Stefanovska recalled a conversation she had with Mr Rignall at one time, viz: Mr Rignall: That idiot Barry Moulds came into work this morning and I sent him home. I went to shake his hand and he nearly fell over. Brett (Mr Buffett) had to stand behind him to catch him. The wind could knock him over. I sent him home. You can't let him come back to work. You need to send him to the doctor. Ms Stefanovska: We weren't expecting him back. He was not supposed to come back until he has been examined and cleared. I will arrange another medical appointment. Mr Rignall: I have told him he has to wait for your call. 21Mr Rignall denies that conversation actually took place, asserting that he was not even present at the time that Mr Moulds presented himself to work and he did not tell him to go home. Nevertheless, he was aware that Mr Moulds had appeared to commence work on two occasions and was sent home because he had no medical confirmation of his fitness to resume duties. 22Mr Moulds claimed that when he presented himself to work, he had Dr Walker's report which he made available to Toll Priority management. That is denied by Mr Buffett and Mr O'Flynn and, on balance, I must accept their evidence over that of Mr Moulds. If Mr Moulds had presented the medical report of Dr Walker at that time, Mr O'Flynn would not have had any reason to actually send him home, which he did - twice. I do not believe that Dr Walker's medical report was made available to Toll Priority management until some considerable time later. That is Mr O'Flynn's evidence. The medical report was provided by Dr Walker to Dr Malouf and, ultimately, it was no doubt provided to Mr Moulds. But until later it does not appear that Dr Walker's report went any further. 23But Dr Barlow also provided a medical assessment of Mr Moulds dated Monday, 9 August, 2010 and provided it to Ms Stefanovska, viz: "....Apparently (Mr Moulds) has been a courier driver for Toll Priority for the past 20 years and has really probably neglected his health; he has not sought any medical attention for a long period of time. On Tuesday, 13 July, 2010 it was noted that he had some left facial weakness and his wife was concerned about him having a strike and he was taken to Auburn District Hospital. His past history includes type 2 diabetes and high cholesterol. He is an ex-smoker, having given cigarettes away 10 months ago and he is not allergic to any medications. His current medications are Asasantin, one twice a day, Metformin 500mg, twice a day, and Lipitor 40mg, one a day. Whilst in Auburn Hospital his left facial weakness resolved within a couple of days and he was thoroughly investigated for risk factors for having a stroke and these were all negative, apart from the fact that he has diabetes and high cholesterol. He has recently seen the neurologist who looked after him, Dr Grant Walker, who could find no abnormality on examination following his strike. His local doctor is Dr Michael Malouf at Parramatta. When I examined him on Wednesday, 4 August, 2010, he appeared an aged fellow, although he is 73 years of age. He appeared vague and very sedate. I could find no evidence of his previous stroke on examination, but he did have significant bilateral inguinal hernia, which look incarcerated but he is not keen on any surgical procedures. I managed to speak to the specialist, Dr Walker, on Thursday, 5 August, 12010 and also to his local doctor, Dr Malouf. From the RTA point of view, because he holds a car licence, he is eligible to return to driving, according to Dr Walker, but both Dr Malouf and myself have concerns about his perceptual awareness at this stage. On the strength of things, I feel that he should not, in the immediate future, return to driving for at least another six weeks. He had suffered only a minor stroke and he is certainly on medications that would prevent him from having further episodes. If in six weeks time you are still concerned about him returning to work as a courier driver, perhaps we could review the situation then..." 24Particularly in the light of that medical assessment by Dr Barlow, Toll Priority management still had some concerns as to the fitness of Mr Moulds to resume work for it. Mr Moulds was again referred to Dr Barlow and re-examined on Thursday, 9 September. 2010. According to Mr Moulds he not was not actually examined by Dr Barlow on that occasion but by another person, his assistant from Sydney University. Nevertheless, Dr Barlow provided another medical report on Friday, 10 September, 2010 as follows: "...(Mr Moulds) certainly looked a lot brighter when reviewed and certainly has recovered from his transient cerebral episode approximately two months ago. He also came with a copy of the letter from the neurologist, Dr Grant Walker, to his local doctor to say that it was his consideration that he was fit to drive. Certainly if you look at the criteria necessary for a commercial driver to resume driving, he fits the category. He is 73 years of age and has a number of co-morbities to explain his recent drug like symptoms. He is diabetic and has dyslipidaemia and all of these risk factors are being treated. Do I believe he is a risk to the public and to himself? I must admit that at 73 years of age with these co-morbities I do not believe that this fellow should return to commercial driving. This is despite the fact that he does fit the criteria to drive a commercial vehicle. Also, in view of his age mainly, I do not think that her will ever return to full pre-injury duties without any restrictions, as he has requested not to do a lot of heavy lifting. I do agree with this, mainly because of his age. Overall, I do not understand why this fellow would want to work in his capacity as a commercial courier at his age. I do not know what the restrictions are within your company concerning the age of a patient but, as I say, despite the fact that he is co-morbitiies I do not believe that he is in a position at present to return to this sort of work. I am sure that this will meet with some opposition from the employee himself, but this is my opinion and I will stick to it..." 25That report was the subject of discussions by Toll management and it was decided that it would have been unwise to take any action to permit Mr Moulds to resume his driving duties until the position was clarified. Ms Stefanovska decided to engage a specialist neurologist. She selected Professor John O'Neill at St Vincent's Clinic at Darlinghurst from the list of medical specialists approved on the website of the WorkCover Authority. Toll Priority had not engaged Professor O'Neill for medical advice in the past. 26Mr Moulds was examined by Professor O'Neill on Thursday, 23 September, 2010 and she received the report from him dated Thursday, 23 September, 2010 on Wednesday, 29 September, 2010. That report, which answered specific questions put to him emphatically, was not supportive of Mr Mould resuming his driving duties for Toll Priority, viz: "....It is by no means certain that Mr Moulds had a stroke on Tuesday, 13 July, 2010, although that is possible. The only clear statement that can be made about that day is that a fellow worker was concerned enough to notify his wife and call an ambulance. The correspondence from Dr Walker would indicate that Mr Moulds does have radiological evidence of cerebrovascular disease. His current medications are appropriate. My concern is his mild slowness of mentation and marked slowness in movements such as dressing and undressing. This slowing of cognitive and physical function may well be on the basis of age and small vessel cerebrovascular disease. Answers to specific questions - 1. Is the employee able to return to his full work duties? Given Mr Moulds' age and obvious slowing of mental and (more especially) physical functioning, I do not believe he is fit to return to full work duties either now or in the future. 2. Does he meet the criteria to be a commercial driver? For the same reason, I do not believe he is capable of working as a commercial driver. 3. Is he a risk to the public and to himself? For the same reason, I believe he would be at some risk to the public and to himself being on the road as a commercial driver for up to 55 hours per week. 4. Will he ever be able to return to his full driving duties? No. 5. Should he be back on the road? I do not believe he should be back on the road as a commercial driver. I think he should undergo a practical driving test to see if he is fit for unrestricted driving of a private vehicle. That, however, would be a matter for his usual GP (Dr Malouf). 6. Is he exposed to duties which are unsafe and likely to aggravate or cause further deterioration to his current condition? Answer in 1 above. 7. Other general comments. I gave Mrs Moulds an indication that I would be giving a negative report about her husband's capability of continued participation in the workforce with Toll and I told her my concern was particularly over the obvious slowness he exhibited in dressing and undressing and the need for assistance in that task. She seemed to recognise that this was a fair assessment..." 27On Monday, 11 October, 2010 Mr Moulds attended a meeting with Toll Priority management and he was informed that his contract of carriage with it was terminated. Mr Moulds approached the TWU and during the conciliation phase of the matter before me he arranged to see Dr Walker again who provided two further reports dated Friday, 21 January, 2011 and Monday, 28 February, 2011 in virtually identical terms. Dr Walker's report of Monday, 28 February, 2011 was as follows: "....Mr Moulds had a minor stroke on Tuesday, 13 July, 2010 from which he recovered fully. He has been discovered to have non insulin dependent diabetes and hypercholesterolaemia just prior to this event and therefore he currently takes medications for both of these conditions, as well as Asasantin as an anti-platelet agent and Coversyl for hypertension. His cholesterol, blood sugar and blood pressure have normalised with the medications. When I saw him for the first time on Monday, 2 August, 2010 there were no abnormal neurological signs. I felt that he was medically fit to return to driving his van but apparently he was sent by his company to be assessed by what seems to have been a general practitioner in Bankstown and, although the exact reasons are not known to me, Mr Moulds' opinion is that the doctor thought he was '...a bit slow and vague...' When I saw Mr Moulds in January, I found him to be intellectually normal for his age. He has no balance problems. His blood pressure was normal at 120/80. I also believe that he is physically capable of picking up and emptying mail bags..." 28For his part, Mr Moulds records in a written statement which formed the basis of his evidence in this hearing: "....I have had no difficulties coping with the lifting aspect of my work. Most of the items I have to lift and cart are mail bags. They are generally around 3 kilograms. Occasionally, the bags are heavier and I have never had a situation where I could not lift a bag. I had some minor problems with loading my truck with bags for the airport..." 29And Mr Rignall also believes that Mr Moulds is fit to perform his work again with Toll Priority. He speaks also of Mr Moulds' work colleagues whom he claims share his view. But that is not the view of Mr Buffett and Mr O'Flynn who express concerns that Mr Moulds is not fit to resume the work he performed for Toll Priority. CONCLUSION 30Mr O'Flynn and Mr Buffett have no criticism of Mr Moulds' work and they believe that Harvey Norman have apparently been comfortable and have no complaints with respect to his work for it. Mr Moulds accepts that at his age retirement is something which he must contemplate shortly but he still wishes to remain working for Toll Priority for a further two years and then retire. Mr Moulds is at present receiving the aged pension. 31I can appreciate Mr Moulds' desire to resume working for Toll Priority, albeit for the limited time he is prepared to accept for his working life, carrying out the work in which he has been engaged for such a long time already. I also recognise that age should not, on its own, constitute a grounds to bring his engagement with Toll Priority to an end. To do so would clearly constitute discrimination on the grounds of age, which, as Mr Bull submitted, is unlawful. But according to Mr O'Flynn, age has never been a barrier to the engagement of contract drivers for Toll Priority. There apparently are other aged contract drivers in its fleet and no concerns over their continuing to work for Toll Priority. 32But it is Mr Moulds' health that chiefly concerns me in this hearing. I would not wish to intrude into what appears to be some conflicts in the views of the different medical practitioners concerning Mr Moulds' fitness to work as a commercial driver, but it seems to me that the weight of that medical evidence, particularly that of Professor O'Neill, still suggests to me that the reinstatement of Mr Moulds' contract of carriage with Toll Priority is not something I can really support. In my view, Toll Priority would be in clear breach of its obligations under the Occupational Health and Safety Act 2000 to again engage Mr Moulds in driving duties for it in the light of the medical evidence it has received [ WorkCover Authority of New South Wales v Hitchcock (2004) 135 IR 377]. Moreover, and more importantly, it would not, in my opinion, be acting in Mr Moulds' own best interests to re-engage him on his previous contract of carriage in the light of the medical assessment of his fitness for work as a commercial driver. 33In the circumstances, I believe the appropriate course for me to adopt is to dismiss the TWU application made on behalf of Mr Moulds and I do so. I see neither grounds for the reinstatement of Mr Moulds' contract of carriage with Toll Priority nor, in the circumstances, unfairness by Toll Priority to Mr Moulds to justify monetary compensation to him. 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. Decision last updated: 21 July 2011