Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales (on behalf of Darren Roger Bargwanna) and Robar Enterprises Pty Ltd (ACN 108 640 517) [2013] NSWIRComm 84 Hearing dates: 12/03/2013, 13/03/2013, 22/04/2013 Decision date: 25 September 2013 Before: Backman J Decision: In IRC No 307 of 2012, the application under s 314 of the Act is dismissed and costs are reserved. The application under s 213 of the Act is dismissed and costs are reserved. Catchwords: Application under s 314 of the Industrial Relations Act 1996 (the Act) - applicant (TWU) alleges that the contract of carriage was terminated by the respondent, "for no valid reason" and was "harsh" - dispute concerning the condition of a pantechnicon owned by the respondent, attached to a truck owned by Darren Bargwanna, a driver engaged by the respondent under a contract of carriage (the agreement) - reasons for termination of the agreement considered - principles to be applied - held: respondent was entitled to terminate the agreement - termination was not otherwise "harsh" - application dismissed. Application under s 213 of the Industrial Relations Act 1996 (the Act) - allegation that Mr Bargwanna was "victimised" by the respondent - allegation that the respondent terminated the agreement because Mr Bargwanna caused to be notified to the Commission a dispute under s 332 of the Act - meaning of "victimise" considered - rebuttable presumption under s 210(2) considered - application dismissed. Legislation Cited: Industrial Arbitration Act 1940 Industrial Relations Act 1991 Industrial Relations Act 1996 Cases Cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647; [2012] HCA 32 Cherry v Allied Express Transport (1997) 73 IR 305 Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 Deltec International Courier Pty Limited v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341 Electricity Commission of New South Wales T/as Pacific Power v Crump (1993) 48 IR 296 Electricity Commission of New South Wales T/as Pacific Power v Nieass and Others (1995) 81 IR 46 Metropolitan Meat Industry Board v Australasian Meat Industry Employer's Union, New South Wales Branch [1973] AR (NSW) 231 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (on behalf of Darren Roger Bargwanna) (Applicant) Robar Enterprises Pty Ltd (ACN 108 640 517) (Respondent) Representation: Mr D Mahendra of counsel (Respondent) Transport Workers' Union of New South Wales (Applicant) Blackwell Short Lawyers (Respondent) File Number(s): IRC 307 of 2012 DECISION 1Before the Commission are two applications filed by the Transport Workers' Union of New South Wales (TWU). In its capacity as an association of contract carriers under Part 5 of Chapter 6 of the Industrial Relations Act 1996 (the Act) (about which there was no issue) the TWU acts on behalf of DR and KA Bargwanna. DR Bargwanna is Darren Bargwanna and KA Bargwanna is Mr Bargwanna's wife, Kristy Anne Bargwanna. DR and KA Bargwanna operated as a partnership and was, until the contract of carriage was terminated by Robar Enterprises Pty Ltd (the respondent), engaged by the respondent to distribute its products. The respondent, at that time, was a principal contractor operating as a food and related product distributor. Under the contract of carriage the partnership was required to supply its own motor vehicle in order to distribute the respondent's products. 2The first application is brought under s 314 of the Act. It seeks the following orders: That the contract of carriage which existed between Darren Bargwanna and Robar Enterprises Pty Ltd be reinstated along with compensation for loss of income between the date of termination and the date of reinstatement calculated at $1,800.00 gross per week. Or in the alternative: That Robar Enterprises Pty Ltd pay Darren Bargwanna the amount of $46,000 representing 26 weeks' compensation calculated at $1,800 per week. 3The grounds and reasons providing the basis for the application are formed in large part by a factual narrative, the substance of which I will return to in detail shortly. The grounds and reasons conclude with the words, "In all the circumstances, the termination of the Contract of Carriage is harsh, unreasonable and unjust". 4The second application is brought under s 213 of the Act. It seeks an order for the payment of $99,843.33 under s 213(2)(c). The payment is characterised in the s 213 application as, "the whole amount of financial benefits lost and forgone for the 2012 calendar year". Part B of the s 213 application, headed "Particulars of Victimisation" sets out the following matters: (1) Mr Darren Bargwanna ('the Applicant') was employed by Robar Enterprises Pty Ltd ('the Respondent') for approximately three (3) years. The Applicant supplied a truck for the purposes of transporting refrigerated goods for the Respondent. The Respondent provided the Applicant with a refrigerated container mounted on the rear of the Applicant's vehicle. (2) In or around August 2011, the Applicant and the Respondent have been in dispute over a number of issues, particularly in relation to wages. (3) Negotiations and discussions with regard to wages broke down between the parties in mid August, and on 18 August 2011 the Applicant's Representative ('TWU') filed in this Commission to have the matter conciliated (IRC 1383/2011). (4) The issues relating to pay were heard before Marks J in or about November 2011 and concluded to the satisfaction of both parties shortly thereafter. (5) On or about 2 December 2011, the Applicant wrote to the Respondent advising them that the container on the rear of the Applicant's vehicle was in need of urgent repair and posed an occupational health and safety risk to himself and other road users. (6) The Respondent denies that they are liable for the repairs on the container. (7) The matter was bought to the attention of Marks J on or about 12 December 2011 during discussions over a separate dispute concerning the parties. Marks J advised the parties to resolve the matter or have it listed as a separate matter in the Commission. (8) On 14 January 2012, the Respondent wrote to the Applicant stating that the container was not suitable and to provide reasons as to why the Applicant's contract should not be terminated. The Respondent further withdrew the Applicant's truck from service. (9) On 30 January 2012, the Respondent terminated the Applicant's contract of carriage for a failure to respond to the show cause letter of 14 January 2012. (10) The Applicant's contract was terminated by virtue of his intention and subsequent filing of a further dispute in the Commission with regard to the state of the container on the back of his truck. (11) Accordingly, the Applicant has been victimised for exercising functions under the Industrial Relations Act 1996 (NSW). (12) Further, the Applicant has been victimised for participating or proposing to participate in proceedings relating to an industrial matter in the Commission. (13) The Applicant seeks compensation as a consequence of the Respondent's victimisation. Factual background 5A number of factual matters (dealt with below) were not in dispute between the parties. 6The contract of carriage, entitled "Distribution Agreement" (the agreement) was signed by Mr Bargwanna and his wife, Kristy Anne Bargwanna, on 12 August 2008. Clause 5 of the agreement dealt with circumstances under which termination of the agreement could be effected by either party. Sub-clause 5(a) provided: Robar agrees that this Agreement may be terminated by the Operator by giving thirty (30) days written notice to Robar. 7Under the agreement, the partnership was the "Operator". 8Sub-clause 5(b)(i) provided that the agreement may be terminated by the respondent: ... in the event of repeated breaches by the Operator of Operator Warranties in accordance with schedule III to this Agreement; 9Schedule III set out the operator warranties. They included, relevantly: The Operator warrants it will: (a) maintain the motor vehicle(s) (truck(s)) and keep same clean at all times; ... (m) follow the maintenance procedures as set out in the Operator's Manual (and be responsible for any maintenance or repairs that the refrigeration unit or the pantek van may require at the Operator's sole cost); 10Clause 19 set out the respondent warranties. Under sub-clause 19(a) the respondent warranted that it will: ... agree to purchase and install to the Operators truck an appropriate refrigeration unit suitable to both Robar and the Operator at Robar's own cost in the event the same equipment is not previously provided; 11Some time in about July or August 2008, Mr Bargwanna purchased a Hino truck and the associated contract driving business from Terrence John Farrell. Mr T Farrell, at that time, had a distribution agreement with the respondent. As part of that agreement, the respondent provided him, free of charge, with a refrigerated motor and pantechnicon (pan), attached to the truck. Under the agreement, he was required to maintain the refrigerated motor and pan in a good working condition at all times and at his own cost. The truck which Mr T Farrell sold to Mr Bargwanna incorporated the same refrigerated motor and pan, which was utilised by Mr Bargwanna during the course of the partnership's engagement by the respondent under the agreement. 12Following the execution of the agreement by the partnership, Mr Bargwanna began driving the Hino truck for the respondent. The business relationship between Mr Bargwanna and the respondent was uneventful until at least June 2009 after which documentary evidence indicates that the relationship had begun to deteriorate. 13On 10 June 2009, Graham Smith, a director of the respondent, issued an official warning to Mr Bargwanna following a complaint from an unidentified member of the public. It should be noted that Mr Bargwanna denied having seen or received the warning. Nevertheless, the correspondence serves to demonstrate the respondent's growing dissatisfaction with Mr Bargwanna's conduct at that time. The warning, contained in a piece of correspondence, was expressed as follows: It has come to our attention, yet again, by a member of the general public, that your driving behaviour is causing serious concern. This morning we were advised the truck registered in your name ... was tailgating and flashing lights on ... between ... This is not the first time. In recent times we have had complaints (as advised to you verbally) from an off duty policeman. We will not tolerate this behaviour and now think it necessary to give you official warning. Any breach by you of driving discourteously, recklessly or dangerously at any time in a vehicle exhibiting Robar Distributions signage will be seen as a breach of contract, with Termination a distinct outcome. We expect all Robar employees and drivers to be courteous, safe and responsible. This not only applies to clients but extends to the road and any other interaction with the general public. 14The next piece of correspondence, dated 6 October 2010, emanated from Mr Smith on behalf of the respondent to Mr Bargwanna. It asserted: Darren Pan maintenance is the responsibility of the contractor. So is any pan mechanical repairs resulting from a lack of maintenance. Same goes for repairs to pan body due to neglect. Graham 15A letter sent to Mr Bargwanna, dated 14 December 2010, also addressed concerns of the respondent with regard to what was seen as a failure on behalf of Mr Bargwanna to maintain the pan on his truck: The directors of Robar have had numerous discussions with you regarding the maintenance of the pan tech provided by Robar Distributions to you. As per Schedule 111(m) you as a Robar Contractor are responsible for the maintenance of this pan. We consider now that you have become negligent with respect to the lack of maintenance and are in breach of this clause within the contract. We demand that you repair the pan to our satisfaction by December 31, 2010. We advise that failure to do so will result in us decommissioning the vehicle for Robar work. 16Attached to an affidavit of Mr Smith are a number of pieces of correspondence documenting various concerns of the respondent regarding Mr Bargwanna's conduct while delivering products in his capacity as a contract carrier engaged by the respondent. In summary, these concerns consisted of the following: (1)On 16 December 2010, failing to deliver a pallet of ice designated for a Coles store at Lithgow. (2)On 7 September 2011, a written notice issued to Mr Bargwanna concerning his refusal to deliver a pallet of goods at Bathurst and warning that his refusal to deliver constituted a breach of contract. (3)On 13 September 2011, the respondent received a written complaint from a customer concerning damaged and spoiled food delivered by Mr Bargwanna. (4)On 23 September 2011, the respondent wrote to Mr Bargwanna with regard to his refusal to deliver goods to a bakehouse in Oberon and again put Mr Bargwanna on notice that he was in breach of the contract. (5)On 10 November 2011, a further letter was sent by the respondent to Mr Bargwanna detailing further failures to deliver perishable goods by Mr Bargwanna and describing his refusals as, "an act of sabotage". (Mr Bargwanna said he was not provided with a copy of this letter.) (6)Between November and December 2011, letters sent to the respondent by "Fresh Foods" and "Trunkey, Bacon and Port" concerning deliveries of damaged goods. The deliveries are attributed to Mr Bargwanna by Mr Smith on behalf of the respondent. 17On 2 November 2011, Mr Bargwanna wrote to Mr Smith outlining his concerns about the state of the pan. The letter states: I'm writing to you in regards to the pan on my truck in which you own. The pan has a structural defect, due to the old age and is in a state of needing urgent repair. As I am the driver of the truck that is carrying your pan, I feel uncomfortable using this pan and don't want to see anyone get hurt. When I finish at Robar the pan goes back to you and I can only assume that you want it in working order. This brings me to the problems with the pan keeping its temperatures. This needs to be a priority as we deliver refrigerated goods. I await your reply. 18On 10 January 2012, Mr Smith replied in writing to a recent telephone call from Mr Bargwanna on the subject of maintenance of the pan: Darren Reference your phone call 3pm today. Continually referencing previous correspondence on the matter of pan maintenance has not achieved a result. We have asked you on many occasions to rectify the problem. Now as you point out you are concerned about the safety of pan and I agree that we need to have this assessed as soon as possible. I have spoken to Gordon Pinkerton as you suggested, and I have arranged for he and Alan Matherson to inspect the pan as soon as it can be arranged. I will also seek an assessment from Transport Refrigeration Services, and get the results to you ASAP. Regards Graham 19Following this correspondence, the respondent arranged for various inspections of the pan. On 13 January 2012, Neil Rattray, Production Manager, and licensed refrigeration mechanic for the Bundella Group Pty Ltd, inspected "the refrigerated truck". His conclusions are set out in a letter of the same date to Mr Smith in which he states the following: A service call out 13/1/2012 to inspect the refrigerated truck at the above address for its operational and structural condition as requested. This visit found the storage area to be in poor condition, several gaps to the outside air are present and the whole thing in need of an overhaul. The truck storage area has clearly not been maintained and has lapsed into a poor state. No apparent regular repairs or maintenance has been carried out for a long time. It would not be recommended that this truck/refrigerated area be used until full repairs are carried out on the checker plating and damaged exterior panels are completed. The storage area is unsafe for use in its present state. 20Gordon Pinkerton from Ammonia Refrigeration Sales & Service inspected the pan on 12 January 2012. In a letter sent to the respondent dated 25 January 2012 he states: Re my recent inspection of your refrigerated road truck on the 12th January. This particular Pan is made up of sandwich panels 1220mm wide, and relies on the aluminium strips and turned up aluminium floor to hold panelling together as it would require this for strength being a mobile unit. It would appear that the external angle roof corner has had an impact and possibly the weight of the refrigeration unit is adding strain to open up the join in the insulated sheets. With a further possible added strain could be caused if the pay load was resting against the front wall and the trucks brakes were suddenly applied. As this refrigerated body has no frame as such, it would rely on any dislodged rivets between the aluminium strips and the steel skin to be replaced when they become dislodged. On inspection it is obvious that there has been no attempt to maintain the ongoing repairs as required. Most of the aluminium strips and the steel skin is sound and could be maintained without any replacements, except for notably a couple strips at the front have been bent beyond repair and should have been replaced. 21Following receipt of the inspection results, the respondent sent a letter to Mr Bargwanna dated 14 January 2012. The letter states: I refer the Bundella report enclosed regarding condition of the Robar pan on your truck and all previous correspondence relating to your contract. The directors of Robar Distributions now require you to show cause as to why we should continue to honour this contract. You have 14 days notice. Please reply in writing by close of business on Monday 30/1/2011. As advised in our phone conversation on Friday, the refrigerated pan on your truck must not be used and if you are to continue your run on Tuesday next, you will need to supply a suitable refrigerated truck for the purpose. Please note that a report on the condition of the refrigeration unit is still pending. We will consider the need for further action in due course. 22Mr Bargwanna did not reply to the "show cause" letter. On 31 January 2012, the respondent terminated the agreement between it and the partnership in a letter expressed as follows: This is to advise that the Directors of Robar Enterprises have terminated your contract as of close of business on 30th January 2012. I refer to all correspondence relating to the disputes regarding your contract. You have not replied to our letters asking for your written explanation as to the condition of the refrigerated pan. You did not reply to our letter asking you to show cause as to why we should continue to honour this contract, given the state of the pan. Apart from the Bundella report (which you already have), I enclose two more reports on the pan for your information. I remind you that the inspection by Mr Gordon Pinkerton was arranged at your request. Please refer to your contract which outlines your responsibility regarding the removal of Robar logos. 23During the period in which the parties exchanged the various pieces of correspondence referred to above, Mr Bargwanna raised concerns about the respondent's apparent intention to cut back delivery runs because of concerns it held in relation to the continued viability of the runs. Between about February 2011 and August 2011, Mr Bargwanna had meetings with a representative of the TWU, Mr Ken Hurst. Mr Hurst contacted the respondent some time in July 2011, raising, among other things, whether Mr Bargwanna should be made redundant (with the appropriate severance payment). According to Mr Bargwanna, the parties failed to resolve various issues and on 18 August 2011, the TWU filed a notification of dispute under s 332 of the Act which came before Justice Marks for a compulsory conference. The notification of dispute focussed on a claim for underpayment, specifically a claim that Mr Bargwanna had not been paid a minimum of $3,399 per fortnight in accordance with the terms of the agreement. The notification also raised concerns about impending redundancies of the contract carriers, including Mr Bargwanna, engaged by the respondent. The dispute which was before Marks J until about October or November 2011 was not resolved, although according to the factual narrative contained within the application brought under s 213 of the Act the dispute was, "concluded to the satisfaction of both parties ...". Section 314 application 24In submissions, the TWU identified two key matters which it said must be determined on the s 314 application. The first matter was said to consist of three factual findings which needed to be made, namely: (1) what was the condition of the pan and refrigeration unit when Mr Bargwanna commenced driving the truck for the respondent in August 2008; (2) who was responsible for maintaining the truck during the period of the agreement; and, (3) what was the condition of the truck, pan and refrigeration unit when the agreement was terminated on 30 January 2012. 25The second key matter said to arise from the factual findings identified above was whether the termination of the agreement was harsh, unreasonable or unjust. 26I turn now to consider the evidence which is relevant to an examination of the questions identified above by the TWU as the three factual findings which must be made. My consideration will incorporate the material adduced into evidence to which I have made reference under the heading, "Factual Background". 27In an affidavit, Mr Bargwanna stated that when he "received the pan tech" it was in a "poor state". He nominated several defects (referred to as "issues") which he said were in existence at that time. The defects according to Mr Bargwanna consisted of the following: (a)The steel angles (corner joins) on the roof of the pantech had broken and separated, leaving two large holes on both sides of roof approximately a metre from the leading edge of the pantech. The metal joins were sticking out at an angle away from the truck. The holes were so large that rain would regularly leak into the pan where the goods were stored. (b)The metal floor of the pan was riveted to the sidewall on three walls inside the pan. On the right hand side of the pan the rivets had come out and the metal that had been attached to the wall was separated and no longer attached to the sidewall, but stuck out approximately 15-20 cm from the wall. This caused significant problems when loading and unloading the truck as the sidewall would often catch on the products being loaded inside the truck. On at least one occasion I cut my leg on the floor, leaving a scar. (c)The bowing of the floor on the right hand side of the pantech also caused the metal strip used for mounting freight stabilising bars (to prevent pallets moving inside the pantech) to separate and stick out from the wall. On a number of occasions, I caught my arm on the strip. (d)There was significant amount of rust and rust marks inside the pantech caused by the condensation inside and rain entering through the holes in the roof. (e)There were also jumper leads running between the truck's battery and the pantech battery. This is because the alternator on the pantech motor was broken and was not charging back to the battery. The leads and contacts were exposed to the elements at all times as a consequence of this. (f)The welds on the back of the pantech had broken in various places, causing the rear lip of the floor to lift approximately half an inch off the base of the pantech. 28Mr Bargwanna purchased the Hino truck from Mr T Farrell some time in August 2008, that is, shortly before the agreement was executed (on 12 August 2008). The purchase included the pan and the refrigerated motor which were attached to the truck. There was no dispute between the parties that under the agreement Mr Bargwanna was responsible for the maintenance and repairs of the refrigeration unit and "pantech van". The TWU submitted in writing: The Applicant agrees that the distribution agreement that existed between Mr Bargwanna and the Respondent made Mr Bargwanna responsible for the maintenance or repairs of the refrigeration unit or pantech van. 29It would have been difficult to contend otherwise given the clear terms of the operator warranties set out under Schedule III of the agreement. 30If Mr Bargwanna's account of the condition of the pan when he purchased the truck is to be accepted, it follows that he purchased the truck and the pan knowing that the pan was structurally and mechanically defective and, notwithstanding that under the agreement he was obliged to maintain and repair it. Nevertheless, Mr Bargwanna's claims under the s 314 application appear to rest on what he perceives to have been the respondent's responsibility to ensure that the pan and refrigeration motor were in a fit and proper condition upon the commencement of the agreement. In written submissions on this particular issue the TWU submitted the following: ... the Applicant submits that the Respondent failed in their contractual obligation to provide Mr Bargwanna with an appropriate refrigeration unit at the commencement of the contract. Further, Mr Bargwanna's constant requests for a Director to assess the pan were not acknowledged by the Respondent. Ultimately, Mr Bargwanna did the best he could in the circumstance that he found himself in, he entered into the contract of engagement with the belief that something would be done in respect to the state of the pantech and refrigerated motor on the back of his truck. The ultimate result of this situation was that Mr Bargwanna's contract of carriage with the Respondent was doomed from the start when the Respondent failed to provide Mr Bargwanna with an appropriate refrigeration unit and pantech at the commencement of his engagement in August 2008. For these reasons, the Applicant submits that in all of the circumstances, the termination of Mr Bargwanna's contract of carriage was harsh, unjust and unreasonable. 31There is a body of evidence which tends to contradict Mr Bargwanna's claim that the condition of the pan was in a "poor state" at the time he purchased the truck and associated business from Mr T Farrell. 32It will be recalled that under clause 19 of the agreement the respondent agreed to "purchase and install ... an appropriate refrigeration unit", at its own cost, "in the event the same equipment is not provided". Here, the "equipment" was provided at the time of purchase, that is, the pan and refrigeration unit were already part of the truck when Mr Bargwanna purchased it from Mr T Farrell. Putting aside this distinction however, Mr Smith, in his affidavit, deposed that the refrigeration unit and the pan were upgraded just prior to the sale of the distribution run from Terrance Farrell to Mr Bargwanna at a cost to the respondent of $30,000. Mr Smith also deposed in his affidavit that at that time the condition of both the pan and the refrigeration unit were in, "a good state of repair". However, in cross-examination, Mr Smith agreed that some time in 2007, that is, sometime between about six and 18 months before Mr Bargwanna purchased the truck from Mr T Farrell that Mr T Farrell secured a new truck with a pan and the respondent reimbursed Mr T Farrell for the pan at a cost of $30,000. The cost of the upgrade was confirmed by Mr T Farrell in cross-examination who said the value of the refrigerated pan was, "$30,000 plus GST". Moreover, Mr Smith said that the pan was inspected at that time and was found to be in good repair. 33A question which emerges from this evidence (which was not the subject of further challenge and may be accepted) is, did the pan deteriorate to the "poor state" claimed by Mr Bargwanna over a period of several months before he purchased the truck? 34Mr T Farrell, in cross-examination, said that the refrigerated pan was obtained at a cost of $30,000 plus GST which was paid for by the respondent. The pan, he said, was registered and inspected by the New South Wales Food Authority after he purchased the truck. In his affidavit, Mr T Farrell deposed to the condition of the pan at the time he sold the truck and pan to Mr Bargwanna: At all times of my ownership of my truck the truck and the associated refrigeration motor and pan were kept in good condition by me. At the time I sold the refrigerated Hino truck to Darren the truck, the refrigeration motor and the pan were in good road worthy condition with all repairs and maintenance having been carried out by me in a proper manner at all times during my contract with Robar. No repairs were required to be made to the refrigerated pan at the time of sale to Darren and the refrigeration motor and pan were in good working condition at the time of sale. 35Mr T Farrell was cross-examined on his statements extracted above from his affidavit. He clarified that if there were any problems with the refrigerated motor he took it to a refrigeration mechanic. This occurred about three times during the two-year period he drove the truck. Otherwise, he said it was regularly checked to ensure it had the correct amount of gas and pressure. With regard to the pan, Mr T Farrell said that he undertook repairs, "for the most part". 36Kevin William Duggan, a contract driver working for the respondent at the same time as Mr T Farrell, and later, Mr Bargwanna, said, in his affidavit that during the loading and unloading of the trucks by contract drivers engaged by the respondent (including Mr T Farrell and later Mr Bargwanna) he noticed the condition and appearance of those trucks. He commented in relation to the truck and pan when it was operated by Mr T Farrell that: Terry's truck and pan were always maintained well in appearance. 37In examination-in-chief, Mr Duggan attempted to explain what he meant by his statement that the truck and pan, "were always maintained well in appearance". He said that, "things looked in place like the kickboard that runs ... beside the bottom of the pan and railings had always looked right and the floor was tidy". He clarified that the floor to which he referred was the floor of the pan and by his reference to "tidy" he meant the floor (of the pan) did not look damaged. 38Grahame Bernard Scurrah was employed by the respondent as a loading bay supervisor and licensed truck driver during the period when Mr T Farrell drove for the respondent and when Mr T Farrell sold his run to Mr Bargwanna. He described his duties as comprising in part the supervision of the daily loading of the trucks owned and operated by the contract drivers. He said that in discharging his duties he was constantly around the trucks and noticed their condition on a daily basis. In cross-examination, Mr Scurrah was asked if he remembered anything in relation to the metal angles on the top of Mr Bargwanna's truck when he first took over Mr T Farrell's run. He replied: My recollection of the vehicle, was in pretty good condition body-wise, the whole vehicle was in pretty good condition. 39Shortly after he said that he did not recall (at the time Mr Bargwanna took over Mr T Farrell's run) observing the metal angles at the top of the truck pointing outwards. 40The net effect of this evidence yields the following conclusions. The pan (and refrigerated motor) were upgraded at a cost of $30,000 at or around some six months to 18 months prior to Mr Bargwanna's purchase of the truck and the delivery run from Mr T Farrell. Moreover, some time soon after the upgrade was completed, the truck and the pan were inspected by the New South Wales Food Authority and registered. It may be inferred from this evidence that the condition of the pan was good enough at that time to pass inspection and undergo registration by the appropriate authority. As to the condition of the pan and the refrigeration unit at the time of purchase by Mr Bargwanna the evidence given by other contract drivers and Mr Scurrah was for the most part general but their general descriptions of the condition of the pan do not support Mr Bargwanna's version. Mr Scurrah, for example, was the loading supervisor and said that he noticed the condition of the truck on a daily basis. In relation to Mr T Farrell's truck his recollection was that when it was purchased by Mr Bargwanna the "whole vehicle" (which I take to include the pan and refrigerated motor) was in "pretty good condition". Mr T Farrell's evidence was a little more specific . He said he kept the truck, the pan and the refrigerated motor in good condition and he carried out (or caused to be carried out) all repairs and maintenance in a proper manner at all times during his contract with the respondent. He also said that when he sold his truck to Mr Bargwanna it was in "good roadworthy condition and that no repairs or maintenance were required to the pan at the time of sale". His evidence was not the subject of any real challenge. He was asked one or two questions about whether the batteries were connected by jumper leads. According to Mr Bargwanna, at the time he purchased the truck, jumper leads ran between the truck's battery and the pan battery because the pan motor's alternator was broken and not charging back to the battery. Mr T Farrell's evidence on this particular claim was as follows: Q. At the time you sold the truck motor and pan to Mr Bargwanna, how was the battery connected to the motor itself, the truck battery? A. From memory that was connected directly off the truck battery on a 20 volt system. So there were two batteries connected in sequence so it was connected off one of those batteries, I believe, I'm not quite sure now, it's a fair while ago. Q. They were connected by lead? A. I believe so, that's a fair while since I have been on that vehicle so it could have quite probably been a separate 12 volt battery but I won't say I guarantee I know because that's what, nearly four, five years ago now. Q. Would you say they would be connected by jumper leads or other? A. No. Q. Were there any leads between the truck battery and the fridge motor battery? A. There could have been a set of jump leads supplied in case that battery didn't have enough starting capacity due to cold weather. 41This evidence tends to contradict Mr Bargwanna's claim that jumper leads ran between the truck's battery and the pan's battery when he purchased the truck. Mr T Farrell's evidence, I find, was inherently plausible and should be preferred. He readily acknowledged, in response to some of the questions, that he could not be certain of his answers because of the lapse of time. He did not agree that the truck battery was connected by jumper leads to the refrigerated motor battery. He explained that there "could have been" a set of jumper leads supplied in case "that battery" (either the truck battery or the refrigerated motor battery) lacked starting capacity due to cold weather. 42The evidence of Paul Haigh should also be mentioned on the issue of the pan's condition at the time Mr Bargwanna purchased the truck. Mr Haigh, a qualified mechanic, said in his affidavit he worked on Mr Bargwanna's truck and pan from about "mid 2008". In his affidavit, Mr Haigh said that in about mid-2008 he inspected Mr Bargwanna's pan and observed loose side panels and wall rivets and loose door hinge bolts. He also said in his affidavit that on or about 3 November 2008, he observed loose rivets on the structural beams on the truck body. However, in cross-examination, Mr Haigh said that he first inspected the truck on 3 November 2008 and that was when he first noticed the loose rivets. He also agreed that at that time he did not observe any other problems with the pan. He was taken through a number of "job cards" annexed to his affidavit. He agreed that the job cards described work performed on the truck not the pan, and that some of the work was performed by his employees. The last job card, dated 19 November 2009, contained the words, "Defect Clearance" under the sub-heading "Work Performed". In his oral evidence, Mr Haigh explained that at that time the truck had a defective rear gearbox seal (that is, the seal was leaking) which was "cleared". Mr Haigh also agreed that he did not perform any work on the truck between 2010 and 2011. He recalled that Mr Bargwanna attended his workshop some time in late 2011 and told him that the truck had been, "defected by the RTA". Mr Bargwanna, he said, asked him to look at the body. Mr Haigh refused, informing Mr Bargwanna that it was not his "field of repair" and he could not sign off on it until it was properly repaired by a specialist. He agreed that between 2009 and 2011 the condition of the pan had "deteriorated". 43Taken as a whole, Mr Haigh's evidence, together with the evidence of Mr T Farrell and the other contractors who worked for the respondent, and who made general observations of the condition of the pan before and after Mr Bargwanna purchased the truck, is compelling evidence. It tends to contradict Mr Bargwanna's evidence that the pan was in a "poor state" when he purchased the truck. Mr Haigh's evidence, in particular, does not support Mr Bargwanna's version that the pan had the defects nominated by him at the time of purchase. Mr Haigh, or his employees, serviced the truck (but not the pan) after it was purchased by Mr Bargwanna, according to the records, between 3 November 2008 and 19 November 2009, and apart from observing loose rivets on 3 November 2008, Mr Haigh said he did not notice any other problems with the pan. It may be concluded from this evidence that the pan was not in the "poor state" described by Mr Bargwanna in his affidavit at the time he purchased the truck from Mr T Farrell in August 2008. 44The second factual finding which the TWU submitted was necessary to be made, is who was responsible for maintaining the pan during the period of the agreement. I have already addressed this matter. Under Schedule III to the agreement, the partnership (which consisted of Mr Bargwanna and his wife) was clearly responsible for maintenance of the pan. This matter did not appear to be in dispute as I noted earlier in this decision. 45The evidence in relation to the third factual finding (what was the condition of the truck, pantech and refrigeration unit when the contract of carriage was terminated on 30 January 2012) supports a finding that the condition of the truck and its component parts (in particular, the pan) had seriously deteriorated between mid-August 2008 (the time of purchase) and 30 January 2012 (the date of termination of the agreement). 46Mr Haigh's evidence on this issue has been addressed earlier. He was the mechanic who serviced the truck. He was qualified and in a position to observe the condition of the pan which he conceded had "deteriorated" between 2009 and 2011. Some details of the deterioration in the pan's condition after its purchase by Mr Bargwanna were provided by other witnesses. Mark Howard Peters (a truck driver employed by the respondent) said in his affidavit that after Mr T Farrell sold the truck to Mr Bargwanna, both the truck and pan, "did not appear to be maintained at all and the truck fell into disrepair". In oral evidence, Mr Peters was asked what he meant by his statement, "the truck fell into disrepair". He responded: A. Yeah, the checker plate was the main thing, yeah. I know it was broke down a fair bit, the truck as a whole. There's a couple of occasions, I've passed the truck on the road and that particular refrigerated pan has a side door on it for loading and unloading out the side and on a couple of occasions Darren was re-closing the door where it hadn't been secured properly which would be from lack of maintenance not making sure it locks, no dust and anything in there which had also caused freight to fall out on the side of the road. Q. How do you know it had caused freight to fall out? A. Because I'd passed the aforementioned freight on the side of the road and in that particular area we are the only people that deliver that freight so - and it was on that particular run which Mr - which Darren does. 47Mr Duggan, in his affidavit, said: Soon after Terry sold the truck to Darren I noticed Darren's truck gradually acquired an untidy, unmaintained appearance with kickboards etc hanging loose. The last time I noticed Darren's truck, in or about December 2011, the truck had ended up in a sad state of disrepair. 48Asked in oral evidence what he meant by, "a sad state of disrepair", Mr Duggan volunteered: A. Well, the kickboard around the bottom inside the pan was all falling off the wall of the pan and there were a couple of other strips that were also coming off the wall. Q. What kind of strips? A. Aluminium strips, protection strips. Q. Was there anything else that you observed? A. That was the main thing. Q. Those were the main things? A. Like, you know, that drew my attention. 49Mr Scurrah, in his affidavit, said: Within approximately six months of Darren taking over Terry's run, the condition of the truck and the pan deteriorated ... to the point where I suggested to management that the truck was not up to food safety regulations. 50Other evidence on this issue consisted of the inspection reports, including those of Mr Rattray (referred to as the Bundella Report) and Mr Pinkerton. Neither gentleman was required to give evidence on the contents of their reports. The contents may therefore be accepted in full. They give rise to the following propositions: (1) the truck storage (the pan) had not been maintained and had lapsed into a poor state; (2) no regular repairs or maintenance had been conducted for a long time; (3) the storage area was unsafe for use; (4) the external angle roof corner of the pan had had an impact which added strain to opening the join in the insulated sheets; (5) there had been no attempt to maintain ongoing repairs; (6) a couple of aluminium strips at the front of the pan were bent beyond repair and should have been replaced. 51In addition to the two reports, the respondent commissioned a further report on the condition of the pan from Rydem Hire Pty Ltd. This report was received by the respondent on 26 January 2012. The report expressed a number of opinions and observations about the condition of the pan, some of which are extracted below: The condition of the truck body and truck generally would be amongst the worst I have seen and would not comply with any goods carrying regulations in particular HACCP Food Safe Regulations. There is major accident damage at the top rail on each side of the body which would be effecting (sic) temperature control as well as allowing weather elements to contaminate freight and the insulating properties of the body. There is internal operator damage at the walls and floor that effect the condition and safe storage of freight as well having the potential to damage freight while loading and unloading. Part of the side door lock is missing making the door unsafe when retaining any load. Also there are load restraint tracks missing. 52The report concluded: In my opinion the body has been left in a deteriorating state to the point of not being economically viable to repair. The cost of bringing the body back to a standard that would be HACCP approved could be as much as $12,000.00 considering the damage that has potentially been done by water to the insulation and timber in the body structure. 53The company is described in the report as "Commercial Vehicle Dealers, Valuers and Repairers". The author of the report, R.N. Dempster, was not required for cross-examination. The contents of the report therefore may be accepted in full. The evidence set out in the reports together with the evidence of the co-workers and the mechanic, Mr Haigh, provide ample support for a conclusion that the condition of the pan had deteriorated during the period in which Mr Bargwanna owned and operated the truck. 54Armed with the information from the Bundella Report, the respondent sent its "show cause" to Mr Bargwanna dated 14 January 2012 to which Mr Bargwanna did not respond. Accordingly, on 31 January 2012, the respondent terminated the agreement between it and the partnership effective from 30 January 2012. Both letters focussed on the poor condition of the pan as the reason for termination of the agreement. There is also reference in both letters to "all previous correspondence" said to relate either to, "the contract" or to, "the disputes regarding your contract". It is not clear whether these references include references to the additional complaints made against Mr Bargwanna by various members of the public, in the correspondence set out earlier in the decision, or were intended to be references to the earlier complaints by the respondent regarding what it perceived as Mr Bargwanna's failures to repair and maintain the pan. What is clear, at least, from the correspondence, is that a primary reason for the termination concerned the state of the pan and Mr Bargwanna's failure to maintain and repair it. 55The parties were not clear in their submissions as to the legal principles to be applied to a consideration of an application under s 314 of the Act. Although the application lodged by the TWU referred to the termination of the agreement as "harsh, unreasonable, unjust", in submissions the TWU changed its focus to whether there was a "valid reason" for the termination. Similarly, the respondent's submissions focussed on whether the agreement was terminated for a, "valid reason". 56Section 314 gives no clear guidance on the principles to be applied. Section 314(1) simply refers to a contract of carriage "that has terminated". Commentary to the section set out in the Butterworth's looseleaf service refers to termination (of the contract) by the principal contractor or by the carrier or by the effluxion of time or by operation of law. Section 314(1) empowers the Commission to make a contract determination with respect to reinstatement. A provision in identical terms to s 314(1) was the now repealed s 680(3) of the Industrial Relations Act 1991. In Deltec International Courier Pty Limited v Transport Workers' Union of Australia, New South Wales Branch (1993) 50 IR 341, a Full Bench made the following observations on the operation of the sub-section (at 349): The first thing to observe about the sub-section is that it enables the Commission to make a contract determination referable to a contract of carriage "that has terminated" and to grant relief "with respect to the reinstatement" of that contract. The sub-section is thus concerned, in its terms, with relief against contracts which have come to an end for whatever reason, termination by the principal contractor or by the carrier or by the effluxion of time or by operation of law, and where there may or may not be cause for terminating the contract; and the relief provided is a determination with respect to the reinstatement of the contract. In other words, the sub-section is not concerned with the concept of dismissal as in an employment relationship and which is catered for now in Pt 8 of Ch 3 of the Act, or previously by s 20A and other relevant provisions in the former Industrial Arbitration Act, where the remedies of reinstatement, re-employment and compensation for lost wages are available. Here, there is the single remedy of a determination with respect to the reinstatement of a contract of carriage between a principal contractor and a carrier; not, we emphasise, concern with some concept of re-engagement or the re-making of a contract of carriage comparable to the re-employment of an employee. 57In Cherry v Allied Express Transport (1997) 73 IR 305, Peterson J, dealing with an application under s 314 of the Act, referred to an amendment made to the Industrial Arbitration Act 1940 which resulted in the conferral of power to make a contract determination for the reinstatement of a contract of carriage, "that has terminated". In the course of reasons on the issue, Peterson J also considered the historical context underpinning the amendment, remarking (at 309): ... In the light of this history, it seems to me appropriate to interpret the power as one which is to be applied, at least if not solely, in circumstances where there has been an "unfair" termination of a contract of carriage. This means that it may be applied in the same circumstances as apply to employees. Here that involves considerations of resignation or constructive dismissal, reinstatement and compensation. 58Both parties in the present proceedings relied on the importation of principles from the federal jurisdiction namely, whether the respondent had a "valid reason" for terminating the agreement. The TWU placed reliance on a definition of "valid" reason in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 where Northrop J held (at 373): In its context in s 170DE(1), the adjective ''valid'' should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ''be applied in a practical, commonsense way to ensure that'' the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC. 59According to the TWU, the respondent failed to provide a valid reason to Mr Bargwanna as to why his contract was terminated. The TWU claims that the contract was terminated following a protracted dispute between Mr Bargwanna and the respondent concerning the poor quality of the pan. The evidence, in particular the various pieces of correspondence exchanged between the parties from June 2009, has been set out in some detail in this decision. It outlines the respondent's directions to Mr Bargwanna to repair and maintain the pan, as well as Mr Bargwanna's requests to the respondent to discuss the state of the pan. The TWU submitted that the termination "was not valid" because the pan was in a poor condition at the time he entered into the agreement. I have already found against the TWU on that proposition for reasons earlier expressed. The fact that Mr Bargwanna made requests to the respondent to discuss the state of the pan takes the matter no further in the absence of any further developed submissions. The agreement was terminated because Mr Bargwanna failed to maintain and repair the pan in breach of the operator's warranties under Schedule III of the agreement. Given the nature of the breach and the clear terms of the agreement, it is my view that there were grounds upon which the respondent could terminate the agreement. It matters little, in any view, what terminology such as "no valid reason", "unfair", "unreasonable" or "unjust" termination may be invoked in coming to a view about the circumstances of the termination of the agreement under s 314. In the present circumstances, the evidence supports a conclusion that the respondent was entitled to terminate the agreement on the ground that Mr Bargwanna failed to repair and maintain the pan in breach of Schedule III (m) to the agreement. Accordingly, I find that the termination was neither unfair, unjust nor unreasonable, nor was it lacking "a valid reason", as that latter term may be understood in Northrop J's definition in Selvachandran, referred to above. 60I have deliberately omitted from the above analysis a consideration of whether the termination was nevertheless "harsh". The TWU submitted, in the alternative, that "in all the circumstances" the respondent's decision to terminate the agreement "was too harsh a penalty". In addition to the matters relied upon by the TWU, principally the contention that the respondent failed to provide Mr Bargwanna with an "appropriate" pan and refrigerated motor at the commencement of his agreement, a contention which I have rejected, the TWU also relied upon the following matters in support of its contention that the termination was otherwise "harsh": (i) at the time of termination, Mr Bargwanna was engaged in a dispute resolution process before the Commission during which the parties were engaged in regular negotiations with a view to, "the attempted rectification of ... (the agreement); (ii) the financial impact on Mr Bargwanna as a result of the termination. 61With regard to the first matter, the notification of dispute before Marks J, which appeared to concern issues associated with a redundancy, had run its course some time in October 2011, some three months before the termination of the agreement. This event could therefore have had little, if any, impact on the respondent's decision to terminate the agreement. A second dispute was apparently notified to the Commission some time in December 2011. The focus of this dispute (according to information set out in the application brought under s 213 of the Act) concerned the condition of the pan. A copy of the dispute notification was not made available to the Commission during the hearing of these proceedings. There was little evidence otherwise to support the contention that the parties were engaged in regular negotiations with a view to "rectifying" the agreement. Evidence touching on this issue consists principally of the correspondence between the parties which indicated quite clearly that the respondent on a number of occasions had directed Mr Bargwanna, without success, to repair and maintain the pan in accordance with the terms of the agreement and on more than one occasion cautioned him that if the matter was not addressed, Mr Bargwanna was in breach of the agreement. On any reasonable construction this material provides no support for the contention that there were regular negotiations with a view to "rectifying" the agreement. 62With regard to the second matter, the TWU relied on what was said to be the "profound" adverse impact of termination on Mr Bargwanna in terms of his personal, financial and economic circumstances. The following specific items were relied upon by the TWU in advancing this particular contention: (1) Mr Bargwanna had to sell his truck for $15,000; (2) Mr Bargwanna has redrawn approximately $7,000 on his home loan; (3) Mr Bargwanna has exhausted the line of credit on his credit card to the value of $7,000; and (4) Mr Bargwanna has only been able to find casual alternate work since his termination. 63In reply, the respondent submitted that the Commission would not find that the dismissal was harsh given: a. the Applicant's short length of service; b. his poor disciplinary history; c. his poor work performance; d. the fact that the Applicant has been able to obtain other work within a reasonably short period of time; e. the Applicant's failure to admit that he was responsible to repair and maintain the Pantek; and f. there being no evidence that is a low or no risk of re-occurrence in respect of his obligations to repair and maintain the Pantek. 64In Metropolitan Meat Industry Board v Australasian Meat Industry Employer's Union, New South Wales Branch [1973] AR (NSW) 231 at 233, Watson J referred to some factors relevant to the issue of whether a dismissal was "harsh": In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 65In Electricity Commission of New South Wales T/as Pacific Power v Crump (1993) 48 IR 296 at 302, a Full Bench in considering whether a dismissal of an employee was "harsh" said that it was properly open to take into account that the employee was, "a good and energetic employee", and that during the period of employment (6.5 years) there were no real concerns about his attendance. 66In Electricity Commission of New South Wales T/as Pacific Power v Nieass and Others (1995) 81 IR 46, a Full Bench considered as relevant to the issue whether a dismissal was "harsh", factors such as length of service, disciplinary history, unchallenged good work performance, and the effects of a dismissal on personal and family life (at 72). 67The above authorities were relied upon by the parties in support of their respective submissions. 68According to Mr Bargwanna's affidavit, he commenced casual "security work" in August 2012 earning a fortnightly salary of $2,200 (net). Prior to that, he worked at a local hotel on weekends from February 2012 earning $490 per week (gross). He said that about two weeks after the agreement was terminated by the respondent he received a workplace injury at the hotel which "incapacitated" him for the period between February 2012 and late July 2012. He remained on light duties at the hotel pending an assessment of his injuries. In the meantime, he said that the hotel covered his medical expenses while he was off on workers compensation. In about June or July 2012, Mr Bargwanna received a lump sum payment of about $24,000 for a workplace injury claim against Newcrest Mining in relation to a job he held prior to his engagement by the respondent. According to Mr Bargwanna, $10,000 of that amount was used to supplement living expenses. In addition to these matters, Mr Bargwanna also performed intermittent security work around the Orange region. 69These financial circumstances do not provide adequate support for the contention of the TWU that the termination of the agreement had a "profound" adverse impact on Mr Bargwanna's financial and economic circumstances. On the contrary, they suggest that Mr Bargwanna took steps to mitigate any loss he may have suffered as a result of the termination. He was employed within two weeks of the termination, although on a casual basis and within a few months had secured well-paid "security" work. He also received a substantial workers' compensation payment in June and July 2012. 70Of significance to this issue is the evidence which focussed on Mr Bargwanna's work performance during the period of his engagement as a contract carrier with the respondent. The respondent, on numerous occasions from June 2009, put Mr Bargwanna on notice of customer complaints concerning his driving, his failure to undertake deliveries and the delivery of damaged and spoiled goods. Numerous pieces of correspondence sent by the respondent to Mr Bargwanna attest to the several unsuccessful attempts on the part of the respondent to direct Mr Bargwanna to repair and maintain the pan in conformity with his obligations under the agreement. Mr Bargwanna's reported responses to these attempts, set out in his affidavit, were that he would, "maintain (the pan) to the standard I received it in". I have already found that, contrary to Mr Bargwanna's claim, the pan was in a good condition at the time of purchase. These matters provide no basis for a finding that Mr Bargwanna was, "a good and energetic employee" during the period of the partnership's engagement with the respondent. 71Weighing all these factors in the balance, the only reasonable conclusion is that the termination of the agreement was not harsh. Accordingly, the application under s 314 of the Act is dismissed. Costs are reserved. Application under s 213 of the Act 72The second application brought under s 213 of the Act rests on the further dispute brought before Marks J, "on or about December 2011". According to the factual narrative set out under Part B of the application that second dispute was notified on behalf of Mr Bargwanna and concerned the ongoing dispute between the parties about the condition of the pan. It is alleged in the application that the agreement was terminated because Mr Bargwanna caused to be filed in the Commission the second dispute. The Commission was not provided with a copy of this notification of dispute. Nevertheless, the respondent did not take issue with the TWU's description of its subject matter. 73The TWU relied upon two paragraphs of s 210(1) as the basis for the allegation that Mr Bargwanna was victimised by the respondent. Those paragraphs provide: 210 (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: ... (d) exercises functions conferred under this Act, or ... (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or ... 74Section 210(2) contains a presumption applicable to an employer-respondent which is rebuttable. The provision provides in full: In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 75For completeness, the enforcement provision, s 213(1), should also be set out: 213 (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. 76The word "victimise" is not defined in the Act. Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 provides some useful guidance on the meaning of the word (at 380-381): In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word ''victimise'' in s 210 should be construed on a basis which corresponds with the meanings of the word ''victim'' where last appearing in the definition of that word, namely, ''one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like''. The word ''victimise'' is defined, inter alia, as ''to make a victim of; to cause to suffer discomfort, inconvenience, etc''; and where used in s 210 should therefore be interpreted as ''cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment''. So far as a prospective employee is concerned the word ''victimise'' must be construed in the context of the word ''prospective''. In this respect s 213(2)(d) comprehends the remedy of an order requiring the employer to employ the ''prospective'' employee, so that ''victimise'' must also encompass, at the lowest, a refusal to employ. Furthermore, s 213(2)(e) comprehends the remedy of an order requiring the employer not to carry out a ''threat'' to victimise an employee and for that to have any application and effect ''victimise'' must be taken to comprise conduct involving threats to victimise by the employer. However, it is unnecessary in this case to decide the full ambit of the word ''victimise''. Mr Davis alleges in his application that he was subjected to a number of forms of victimisation, the particulars of which have been set out earlier. The final act of victimisation alleged is dismissal. 77There is High Court authority to the effect that a statutory presumption may be rebutted if there is direct testimony from the person alleged to have victimised an applicant and that testimony is accepted as reliable. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 290 ALR 647; [2012] HCA 32, French CJ and Crennan J, although dealing with a different provision, said on the issue: [42] Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)). [43] Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker. [44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?". [45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. 78Here, the TWU contends that s 210(1)(d) and (g) are engaged because the respondent "victimised" Mr Bargwanna by terminating his contract following a conversation on 16 January 2012 in which Mr Bargwanna indicated that he would be returning to the Commission to pursue a s 332 dispute against the respondent in order to have conciliated the issue concerning the state of the pan. It is contended by the TWU that Mr Bargwanna was threatened by Mr Smith at the conclusion of the conversation on 16 January 2012 when, according to Mr Bargwanna, Mr Smith said to him: When push comes to shove I will take you for every cent you've got. 79According to Mr Smith, during a telephone conversation with Mr Bargwanna on 16 January 2012, he said to Mr Bargwanna: ... if push comes to shove then I [would] sue [him] for every cent that [he had] cost the business. 80There are some difficulties with the evidence relied upon by the TWU. Proceeding upon the basis that Mr Bargwanna's recollection of this conversation of 16 January is accurate it occurred at least two days after the respondent sent its "show cause" to Mr Bargwanna. The "show cause" letter is dated 14 January 2012 and clearly shows that at that date the respondent was contemplating the termination of the agreement by the words, "The directors of Robar Distributors now require you to show cause as to why we should continue to honour this contract". 81In addition, since June 2009, the respondent had been writing or otherwise communicating to Mr Bargwanna various concerns it had with his work performance and with the condition of the pan (and refrigerated motor). On a number of occasions during these communications the respondent advised Mr Bargwanna that if he did not address his conduct and/or attend to the repair and maintenance of the pan that his agreement could or would be terminated for reasons which included his failure to discharge the operator warranties under Schedule III (m) to the agreement. 82The fact that the conversation in the terms alleged by Mr Bargwanna occurred after these events suggests that the conversation and the filing of the dispute had little or no impact on the respondent's decision to terminate the agreement. Moreover, apart from some reasonable proximity in time (and in the absence of any other causative facts) there is no apparent connection between the subject matter of the conversation and the decision to terminate the agreement. As for the TWU's primary contention that the agreement was terminated because Mr Bargwanna caused to be notified a dispute to the Commission, Mr Smith, in his affidavit, said: On or about 31 January 2012, a letter of termination was provided by the Respondent Company to the Applicant Driver as a result of no correspondence received from the Applicant Driver in relation to show cause letter dated 16 (sic) January 2012 proving two weeks notice to do so, a copy of which is attached to this statement as attached as annexure "S". The basis on which the Respondent Company terminated the Applicant Driver's contract is contained in the written show cause letter and the letter of termination. The Applicant Driver's proceedings against the Respondent Company, or threat in relation to those proceedings, had absolutely no bearing on the decision to terminate the contract. 83In cross-examination, Mr Smith was asked two questions which touched upon the issue. Those questions and Mr Smith's responses, are extracted below: Q. Would it be reasonable to say. I put it to you I suppose that you were frustrated by Mr Bargwanna again proceeding to the Industrial Relations Commission and you said to him in an angered state you would sue him for everything he has got? A. I was only replying, as soon as I answered that phone call Darren was quite aggressive I just answered in the same tone. Q. So it could be possible that you did say I will sue you for every cent you have got? A. No I did not say that, I know exactly what I said. And it wasn't the same day as I spoke to Mr Hurst, it was the next day and I simply repeated those words when Mr Hurst rang me. 84Apart from this evidence, which went no further than an attempt to explore the differing versions of the conversation that occurred on 16 January with Mr Bargwanna there was no challenge by the TWU to Mr Smith's sworn evidence in his affidavit, in the passage extracted above. That evidence, in my view, is reliable, in particular, because it was not the subject of any real challenge under cross-examination. It therefore, constitutes direct evidence capable of discharging the burden upon the respondent to rebut the presumption contained in s 210(2). Proceeding upon the basis that the termination of the agreement constituted a "detriment" (as referred to in s 210(2)) it may be readily concluded that the direct evidence given by Mr Smith that the notification of a dispute and the conversation with Mr Bargwanna on 16 January 2012, "had absolutely no bearing", on the decision to terminate the agreement constitutes reliable evidence which is capable of rebutting the presumption in s 210(2). 85Accordingly, the application under s 213 of the Act is dismissed. Orders 86In IRC No 307 of 2012, the application under s 314 of the Act is dismissed and costs are reserved. The application under s 213 of the Act is dismissed and costs are reserved. * * * * * * 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: 25 September 2013