Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers Union of NSW o/b Kojic v Toll Transport Pty Limited t/a Toll Priority [2015] NSWIRComm 1006 Hearing dates: 10, 11 March 2015 Decision date: 31 March 2015 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: Contract of carriage – termination of contract – application for reinstatement of contract or compensation – applicable jurisprudence – whether termination harsh, unjust or unreasonable – alleged failure to follow protocol – alleged failure to follow direction of supervisor - previous warnings – previous final warning – long contractual association – principal contractor entitled to require adherence to procedure – previous undertaking by contractor not to breach procedure – no basis for reinstatement of contract of carriage – application dismissed. Legislation Cited: Industrial Relations Act 1996 ss. 89, 314 Cases Cited: Cherry v Allied Express Transport (1997) 73 IR 305 Transport Workers' Union of New South Wales (on behalf of TWS NSW Pty Ltd and Ready Transport) and Smartskip (NSW) Pty Ltd [2008] NSWIRComm 55 Category: Principal judgment Parties: Transport Workers Union of NSW o/b Zdravko Kojic - applicant Toll Holdings Ltd t/a Toll Priority – respondent Representation: Mr H Arjonilla – applicant Mr S Burke, solicitor – respondent Laycock Burke Castaldi, solicitors File Number(s): IRC 785 of 2014 DECISION 1. This is an application brought pursuant to s.314 of the Industrial Relations Act 1996 ('the Act') by The Transport Workers Union of NSW on behalf of its member Mr Zdravko Kojic. Mr Kojic was party to a contract of carriage with Toll Transport Pty Limited t/a Toll Priority. ('Toll') 2. Toll terminated the contract of carriage on 27 October 2014. 3. The application sought reinstatement of the contract of carriage or, as it was expressed, in the alternative that Toll pay Mr Kojic a sum representing 26 weeks' remuneration. Applicable jurisprudence 1. Where a contract driver's contract of carriage is terminated, a registered organisation such as the TWU may on his behalf pursue a claim for the reinstatement of the contract by a contract determination or, if reinstatement is impracticable, monetary compensation. 2. The parties correctly submitted that s.314 does not in terms provide guidance as to the circumstances in which the Commission may exercise powers under the Section, but agreed that the power may properly be applied in circumstances where there has been an 'unfair' termination of a contract of carriage, as that term is used in Part 6 of the Act. That approach finds support in the decision of the Commission in Cherry v Allied Express Transport (1997) 73 IR 305 at 309, followed by the Commission without challenge in, inter alia, Transport Workers' Union of New South Wales (on behalf of TWS NSW Pty Ltd and Ready Transport) and Smartskip (NSW) Pty Ltd [2008] NSWIRComm 55. 3. I approach the matter on the basis that the grounds on which the Commission would consider ordering the reinstatement of a contract of carriage, or alternatively compensation, would be analogous to those which would be regarded as leading to that result under Part 6 of the Act; that is, that the termination of the contract was unfair. I do not see that it is necessary to gloss that term further, and in the absence of an express statutory provision inserted by the parliament I do not see, contrary to the applicant's submissions, that it is required that unfairness for the purposes of s.314 be further defined by such terms as 'harsh, unjust or unreasonable'. Facts 1. From the evidence brought before the Commission, the following facts can in my view be established. 2. Mr Kojic was party to a contract of carriage with Toll and its predecessors from, I accept, 1982. 3. At the time of the termination of the contract, Mr Kojic's engagement with Toll was governed by the terms of the Contract Carriers Agreement Toll Priority Bankstown and Erskineville 2005. ('the Agreement') 4. Clause 6, Responsibilities of the Contract Carrier, of the Agreement provides, at subclause (ix), that 'all freight that the Principal contractor/contract Carrier considers valuable shall be treated in a secure manner', and at subclause (xxii), that 'the Carrier is to ensure no deliveries or pick-ups allocated to the Carrier by the Principal are unloaded or off loaded without regard to the security and well being of that freight…' 5. At Clause 8, Signatures, subclause (d), the Agreement provides: 'Failure to gain a signature and a printed surname in accordance with operational procedures may be treated as a serious matter. Where proven, falsification of documentation/data will be treated as a serious matter and may lead to the Principal terminating the Carrier's contract of Carriage.' 6. Toll had in place a procedure for the handling of high-risk freight, which, it was clear on Mr Visser's evidence, was available to and known by the contract drivers. 7. That procedure included that a driver who had to deliver high risk freight was to obtain a signature for it and if unable to deliver the freight, scan it as undeliverable and return the freight to the depot. 8. In May 2012, Mr Kojic was given a Final Written Warning for leaving his van unlocked and unattended while making a delivery at Revesby Shopping Centre. 9. In June 2012 Mr Kojic delivered a parcel to a Padstow address. The recipient was not at the premises. Mr Kojic left the consignment at the door of the premises, electronically signed a letter 'T', for the recipient's signature and typed in her Christian name under the heading 'Signed for by'. The item went missing. 10. About a week after this incident, Mr Kojic had a delivery to a Revesby address. The recipient was not home. Mr Kojic electronically signed a letter 'S' for the recipient's name and typed in her first name under the heading 'Signed for by'. 11. On 15 June Mr Petrevski, Toll's Fleet supervisor, told Mr Kojic that, in relation to the Padstow delivery, he should not be leaving any freight without a consignee's signature. 12. On 25 June Mr Kojic was issued with a Second Written Warning in respect of his conduct in the Padstow delivery. 13. On 29 June 2012 Mr Kojic was issued a Final Written Warning by the Fleet Manager for breaching Toll's procedures by signing for freight himself and leaving it at a consignee's premises. Mr Kojic was told by the Fleet Manager in that written warning: 'Eddie I want to make it clear that any further such action from today will leave me with no option but to terminate your contract with Toll Priority.' 1. Mr Kojic was suspended for two weeks. At the time, he stated that he would never conduct himself in that way again. 2. I am satisfied that Mr Kojic knew Toll's requirements in relation to delivery of freight and the obtaining of signatures for delivery of freight. Mr Petrevski, the Fleet Supervisor, gave evidence that on 15 June 2012, 25 June 2012, and 29 June 2012 he explained Toll's requirements to Mr Kojic specifically in the context of disciplinary proceedings. I am also satisfied on the evidence that Mr Kojic attended a number of toolbox discussions which addressed Toll's requirements in this regard. 3. On 29 September 2014, Mr Kojic had a delivery to make to a Padstow address. Toll asserted that the delivery was high-risk freight, but it was not clear on the evidence that Mr Kojic knew that the delivery was high-risk freight, and I am not prepared to conclude that he did know that it was high-risk freight. He did however know that a signature was required for the freight. 4. He attended the premises on 29 September 2014. The consignee was not at home. Mr Kojic left the freight near the door and signed electronically the letter 'B', representing the recipient's Christian name. He typed in the name 'Ben' under the heading 'Signed for by'. 5. On the next day, 30 September 2014, Mr Petrevski became aware that the Padstow consignee had complained to Toll that the freight had not been received. Mr Petrevski gave an account of the subsequent events of that day in his evidence. Mr Petrevksi impressed me as a witness of truth and I accept his account of the events of 30 September, which was as follows. 6. At 1:06 pm Mr Petrevski telephoned Mr Kojic and told him that the consignee was complaining that the delivery of the previous day had not been received. Mr Kojic said that he had left the delivery under the mat, and has signed for it himself. Mr Kojic expressed an intention to go back to the premises to get the freight back. Mr Petrevksi told Mr Kojic 'Don't go back…I don't think it's a good idea to go back'. Nevertheless Mr Kojic said that he would go back to the premises. 7. I do not take that conversation to amount to an express directive to Mr Kojic not to return to the premises. 8. At 1:18, Mr Kojic telephoned Mr Petrevski. He said that he had found the freight under the mat but the consignee was not home. He asked what he ought to do. Mr Petrevski told him that he would 'speak to the boss' and call Mr Kojic back. 9. At 1:29 Mr Petrevski called Mr Kojic back. Mr Petrevski told Mr Kojic 'I think it's best you bring the freight back to Freight Solutions.' Mr Kojic said that he would try to deliver it again later, and Mr Petrevski then said 'No, Eddie, just bring it back to freight solutions so we can speak with the customer.' 10. That, in my view, was a directive to Mr Kojic from his supervisor to return the freight to Toll. 11. Mr Kojic did not return the freight to Toll but rather telephoned the customer. His evidence about who initiated that call appears on its face inconsistent with an earlier account, but it is clear that he did speak to the customer and did provide the freight to the customer on that day, 30 September. 12. The matter of Mr Kojic having signed for the freight himself on 29 September, and the facts and circumstances of what happened on 29 and 30 September, were then investigated by Toll. 13. In the course of that investigation a meeting was held on 21 October 2014 involving Mr Nick Kypreos, Toll Branch Manager, Mr David Brown as NSW/ACT Operations Manager for Toll, Mr Kojic, Mr John Visser, Mr Kojic's local delegate, and Mr Glen Pepper. 14. As a consequence of that meeting, Mr Visser drafted a letter for Mr Kojic's signature to be submitted to Toll. The letter was submitted on 22 October 2014. The letter was a combination of an admission of wrongdoing and an apology. It contained several factual errors. 15. I entirely disregard any admissions of wrongdoing made by Mr Kojic in the letter. It is apparent that Mr Visser drafted the letter, and Mr Kojic was persuaded to sign the letter, in the terms that he did on the clear understanding that the letter was a necessary element in an agreed process by which Mr Kojic would be suspended, but not more, for his conduct on 29 and 30 September 2014. 16. As it turned out, Mr Visser was wrong in that view. His evidence was that he was led to that view by an express statement from Mr Kypreos in Mr Brown's hearing. Mr Visser gave an account of a later conversation with Mr Brown in which Mr Brown apologised to Visser for 'misleading' him. Both Mr Brown and Mr Kypreos flatly denied that any agreement of that kind was reached, and Mr Brown denied that the later conversation with Mr Visser contained the terms asserted by Mr Visser. 17. Like Mr Petrevski, Mr Visser struck me as a witness of truth, and I preferred his account of the matter to that of Mr Kypreos and Mr Brown. Consideration 1. Mr Kojic was, on the evidence, well aware of Toll's freight delivery requirements. Specifically, he was well aware that Toll would not accept drivers signing for freight themselves. He had been told this in writing and directly orally by Mr Petrevski within recent memory. He had undertaken never to do this again. He had been told squarely in writing that any repetition of this conduct would result in the termination of his contract. 2. On that basis Toll was entitled to come to the view that Mr Kojic's contract should be terminated when he once again, expressly contrary to his own undertakings to Toll, and in the face of a final written warning for this conduct, signed for a delivery himself in the consignee's name. It is further the case that he failed to obey a direct instruction from the Fleet Supervisor to return the freight to Toll, but in my view the matter of Mr Kojic's leaving the freight and signing for it himself was determinative. 3. Toll is entitled to have policies in place regarding the delivery of freight with which it is entrusted. It could not operate otherwise. It had made those policies very clear to drivers. It had made them very clear specifically to Mr Kojic. It was not open to Mr Kojic to disregard those policies on the basis of his own judgment as to an appropriate course to take with an item of freight. 4. Mr Kojic did not act in any way corruptly, nor was there any deliberate fraud for gain on his part; that is clear. But Toll cannot make exceptions for drivers entitling them to, for example, sign on behalf of a consignee, on the basis that the particular driver concerned was not acting with any ill intent. If Mr Kojic does not have to obey the policy, then nobody has to obey the policy. The results of such a course are obvious and unacceptable. 5. Had this been the first and only occasion that Mr Kojic has so acted, then a termination of the contract would very likely have been unfair. But Mr Kojic had been specifically warned, to the degree of a final written warning, about this conduct, and had undertaken that he would not do it again. Toll was entitled to form the view, indeed it could scarcely avoid forming the view, that Mr Kojic would continue to prefer his own judgment about the delivery of freight to following Toll's policy. In those circumstances the termination of the contract was not unfair. 6. I have given active consideration to the evidence that Toll appeared to agree, in the meeting of 21 October 2014, that Mr Kojic would be suspended rather than dismissed. On the balance of all the evidence I have the view that such an agreement was proffered, that Mr Visser drafted the letter as he did on the basis that that agreement had been formed, but that Mr Kypreou was overcalled on his proposal by more senior management. 7. I have already indicated that I wholly disregard the letter as an admission of wrongdoing by Mr Kojic. But the letter, although Toll purported to take it into account, was not the basis for the termination of the contract. The central basis for the termination of the contract was that Mr Kojic did that which he had been twice told in writing not to do, several times orally told not to so, and had himself undertaken two years before never to do again, that is, leave a delivery and sign for it himself. Toll's conduct in relation to the meeting of 21 October was in my view poor. It does not render the termination of the contract of carriage, for the reasons that it was in fact terminated, unfair. 8. I accept that Mr Kojic has been a very long serving contractor. I accept the evidence that he was a popular and well-respected man amongst his peers. I accept that the effect of the termination of a long-standing contract on a man of Mr Kojic's age is significant. 9. The test, though, is whether the termination of the contract was unfair. I cannot see that it was unfair in the circumstances which the evidence discloses; that is, a repeated demonstration by Mr Kojic that he will, notwithstanding instructions and warnings, disregard Toll's procedures if he personally regards it as appropriate. Accordingly I am not entitled to make a determination reinstating the contract. The question of practicability of restoration of the contract, and therefore of compensation, does not arise. Orders 1. The order I make in this matter is as follows: 1. The application is dismissed. PETER NEWALL Commissioner ********** Amendments 31 March 2015 - Case Title 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: 31 March 2015