Transport Workers' Union of New South Wales (on behalf of Sidhu Freight Pty Ltd) and Toll Transport Pty Ltd trading as Toll Contract Logistics [2015] NSWIRComm 36

Industrial Relations Commission New South Wales Medium Neutral Citation: Transport Workers' Union of New South Wales (on behalf of Sidhu Freight Pty Ltd) and Toll Transport Pty Ltd trading as Toll Contract Logistics [2015] NSWIRComm 36 Hearing dates: 28 and 29 July 2015 Date of orders: 11 November 2015 Decision date: 11 November 2015 Jurisdiction: Industrial Relations Commission Before: Kite AJ Decision: The application is dismissed. Catchwords: CONTRACT OF CARRIAGE – application for reinstatement of contract – applicable principles – whether "harsh, unjust or unreasonable" – unconfined discretion – informed by subject matter, scope and purpose of the Industrial Relations Act 1996 – serious misconduct as grounds for termination – allegedly driving dangerously and unlawfully – behaviour in breach of Road Rules – civil standard by virtue of nature of proceedings – unlawful behaviour –allegedly untruthful when questioned by management – applicant was truthful as to knowledge of dashcam – applicant was untruthful as to frequency and mode of use of horn – whether damage or potential damage to respondent's reputation – driving conduct could cause reputational damage to respondent - broad submission that applicant being untruthful during investigation could lead to damage or potential damage to respondent's reputation –the Commission should not speculate on potential reputational damage to respondent in this manner – failing to provide a satisfactory mitigating response – applicant provided adequate opportunity to respond – applicant not a credible witness – justifiable basis for termination – process of investigation was fair – decision to terminate was reasonable and proportionate – circumstances not harsh – application dismissed. Legislation Cited: Evidence Act 1995 (NSW) s 140(2) Industrial Relations Act 1996 (NSW) ss 314, 315 Road Rules 2014 (NSW) r 224 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Cherry v Allied Express Transport (1997) 73 IR 305 Electricity Commission of NSW T/as Pacific Power v Crump (1993) 48 IR 296 Electricity Commission of NSW t/a Pacific Power v Nieass and ors (1995) 81 IR 46 Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union (NSW Branch) [1973] AR (NSW) 231 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; 144 CLR 45 Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746 Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations (No 3) [2015] NSWIC 8 Transport Workers Union of NSW o/b Kojic v Toll Transport Pty Limited t/a Toll Priority [2015] NSWIRComm 1006 Transport Workers' Union (NSW) v Robar Enterprises Pty Ltd [2013] NSWIRComm 84; 238 IR 84 Transport Workers Union of NSW o/b Kojic v Toll Transport Pty Limited t/a Toll Priority [2015] NSWIRComm 1006 Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 Category: Principal judgment Parties: Transport Workers' Union of New South Wales (on behalf of Sidhu Freight Pty Ltd) (Applicant) Toll Transport Pty Limited trading as Toll Contract Logistics (Respondent) Representation: Transport Workers' Union of New South Wales (Applicant) Toll Group (Respondent) File Number(s): IRC 223 of 2015