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 Decision 1. The Transport Workers" Union of New South Wales ("TWU") has made an application under s 314 of the Industrial Relations Act 1996 (NSW) (the "IR Act") for a contract determination of reinstatement. The application is made on behalf of its member Sidhu Freight Pty Ltd ("Sidhu Freight"). Mr Amritpal Singh is the sole shareholder and sole director of Sidhu Freight. In this decision, unless it is necessary to draw a distinction, I shall refer to both Mr Singh and Sidhu Freight as the applicant. 2. The applicant entered into a contract of carriage with Toll Transport Pty Ltd ("the respondent") on or about 15 December 2014. Following the making of the contract, the applicant purchased a truck and then commenced providing transport services on 15 January 2015. On 1 February 2015 an incident occurred which led to a complaint about the applicant's driving behaviour. Following investigation the respondent decided to terminate the contract for reasons set out in a letter dated 19 February 2015 directed to the applicant. 3. The TWU alleged the termination of the contract was unfair or harsh, unjust or unreasonable. The respondent refuted that allegation. Legislative Framework 1. Sections 314 and 315 of the IR Act provide: 314 Jurisdiction with respect to reinstatement of contracts (1) The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or contract of carriage that has terminated. (2) Reinstatement of a contract includes re-engagement under a similar contract. (3) A contract determination under this section may be made on such terms and conditions as the Commission thinks fit, including provision for any period after the termination of the contract to be treated as a period of engagement under relevant contracts. (4) If the Commission considers that it would be impracticable to make a determination for reinstatement, the Commission may order the bailor to pay to the driver, or the principal contractor to pay to the carrier, an amount of compensation not exceeding the amount of remuneration of the driver or carrier under relevant contracts during the period of 6 months immediately before the termination of the contract. (5) When assessing any compensation payable, the Commission is to take into account whether the driver or carrier made a reasonable attempt to find alternative engagements and the remuneration received in alternative engagements, or that would have been payable if the driver or carrier had succeeded in obtaining alternative engagements. (6) A contract determination under this section takes effect when it is made, and is not required to have a specified term or to be published on the NSW industrial relations website. 315 Conference to precede contract determination (1) When application is made to the Commission to exercise its jurisdiction under this Part, the Commission must, before it considers the application, summon to attend and confer with the Commission the applicant and such other persons served with the application as the Commission may direct. (2) At the conference, the Commission is to: (a) ascertain which of the matters with which the application is concerned are in dispute and which are not, and (b) ascertain whether there are any special circumstances or problems existing with respect to contracts of the class with which the application is concerned, and (c) take all reasonable steps to effect an amicable settlement of any matters in dispute. (3) After conferring on an application, the Commission may: (a) dismiss the application, or (b) proceed to hear the application or specify a time and place at which it will be heard, or (c) adjourn the application for such period or periods as it thinks fit. (4) Before hearing an application, the Commission may require service of the application on such persons as it may direct. The Course of Proceedings 1. Pursuant to s 315 a conference was convened on 4 May 2015. The conference did not lead to resolution of the matter and directions were made to prepare it for hearing. That hearing was conducted over two days on 28 and 29 July 2015. At the conclusion of the evidence the parties made a joint application to make their final submissions in writing. Consent directions were made for the filing and serving of those submissions. Liberty was also granted to apply to supplement those submissions orally. No application was made to exercise that opportunity. The principles to be applied 1. Mr A Guy, Legal Officer, appeared for the TWU. He submitted: "…the correct approach in assessing the current application is to consider whether the termination of Mr Singh's engagement with the Respondent was 'harsh, unjust or unreasonable' or simply to make an assessment as to whether Mr Singh's termination was 'unfair." Irrespective of the method chosen to approach the matter, the TWU submits that in making such a consideration the Commission should take into account the following factors: a. a lack of proper or 'valid' reason for the termination of Mr Singh's contract; b. a lack of fair process, or proper opportunity to respond; c. the general harshness of Mr Singh's termination; and d. Mr Singh's personal and economic circumstances. 1. Mrs J Hunt, Group Industrial Relations Manager, Queensland and Northern Territory, appeared for the respondent. Mrs Hunt submitted: The approach of the Commission in dealing with a termination of a contract of carriage application has been to apply the same principles as those that apply when considering an application for reinstatement of an employee who makes an application for unfair dismissal under s 84 of the Act. In Cherry v Allied Express Transport (1997) 73 IR 305, Peterson J considered the historical context of s 314 and observed (at 309): … it seems to be 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. 1. The decision of Peterson J in Cherry v Allied Express Transport (1997) 73 IR 305 ("Allied Express") has been cited with apparent approval by a number of members of the Industrial Relations Commission of New South Wales ("the Commission"). 2. In Transport Workers' Union (NSW) v Robar Enterprises Pty Ltd [2013] NSWIRComm 84; 238 IR 84, Backman J referred to Allied Express and also considered the principle of "no valid reason" which the parties appearing before her sought to import from the federal jurisdiction. In the end her Honour observed at [59]: "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." 1. Her Honour considered that these concepts were all directed to whether the respondent was entitled to terminate the agreement on the ground(s) relied upon. Backman J did however consider separately the question of whether the termination was harsh "in all the circumstances". In regard to that aspect her Honour referred to dicta from Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union (NSW Branch) [1973] AR (NSW) 231; Electricity Commission of NSW T/as Pacific Power v Crump (1993) 48 IR 296 and Electricity Commission of NSW t/a Pacific Power v Nieass and ors (1995) 81 IR 46. 2. More recently in Transport Workers Union of NSW o/b Kojic v Toll Transport Pty Limited t/a Toll Priority [2015] NSWIRComm 1006 Newall C summarised the approach at [5]-[6]: "[5] 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. [6] 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'." 1. While the statute clearly provides for the exercise of discretion, as noted by many members of the Commission, the statute provides no specific criteria by which that discretion is to be exercised. In that sense the exercise of discretion is unconfined. That does not mean it can be exercised arbitrarily or in an unlimited way. In such circumstances the exercise of discretion is informed by the context, that is, the subject matter, scope and purpose of the IR Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; 144 CLR 45 at 49-50; Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746 at 757-8; and Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; 74 CLR 492 at 505. 2. In my view the approach of Peterson J in Allied Express represents an application of these principles. The other decisions to which I have referred, although using slightly different language, do likewise. I will approach the resolution of this matter bearing these statements of principle and their practical application in mind. The Grounds for Termination 1. The starting point therefore is the grounds identified by the respondent for termination. As I have already noted the reasons for termination were set out in a letter dated 19 February 2015. The letter identified serious misconduct as the reason for termination and particularised two grounds. They were: 1. The respondent's belief that Mr Singh had lied to Toll Management during the course of the investigation; and 2. The respondent's view that Mr Singh's driving conduct and behaviour was in breach of clause 10.2c of the "Toll Offer of Engagement" which provided: "Toll may terminate this Agreement immediately and without any compensation if the Carrier or any driver engaged by the Carrier in the performance of the Services: … (c) acts or omits to act in a way that damages the reputation, or has the potential to damage Toll's reputation in Toll's opinion; …" 1. The respondent reformulated these grounds at hearing as follows: The decision to terminate the Applicant's Contract Carrier Agreement on 19 February 2015 was made in relation the Applicant engaging in the following conduct: (a) Driving dangerously and unlawfully on 1 February 2015 while driving a Woolworths trailer, having the potential to damage the reputation of Woolworths; (b) Being untruthful to the Respondent and to Woolworths when questioned with respect to the use of the horn while driving on 1 February 2015; (c) Breach of the Contract Carrier Agreement, including damaging the reputation of the Respondent, or having the potential to damage the reputation of the Respondent during the investigation; (d) Failing to provide a satisfactory mitigating response. 1. The applicant did not make any complaint that this reformulation represented a change of position by the respondent. It is convenient to deal with each of these matters in the order suggested by the respondent. Driving Dangerously and Unlawfully 1. The respondent submitted that Mr Singh was: 1. driving his vehicle too close to the vehicle in front; and 2. sounding his horn aggressively and unlawfully. 1. In respect of the events which transpired on 1 February 2015 the Commission had the unusual advantage of a video of the period during which it was alleged Mr Singh drove dangerously and used his horn aggressively and unlawfully. Mr Singh had a video camera (referred to as a "dashcam") mounted on the dashboard of his truck which recorded a field of view directly ahead and approximating 180 degrees, so that one can see vehicles in front and to the side as they pass slightly ahead of the driver's position in the truck. There is no field of view to the rear and so no ability to observe vehicles which may have been in the lanes next to the applicant's truck and which may have prevented him from changing lanes should he have wished to do so. 2. The video is divided into sixteen digital files each of approximately one minute duration. The total period covered by the video is 16 mins from 10.14am to 10.30am according to the digital clock in the bottom right corner of the video. 3. Needless to say there is a good deal of common ground as to the events of 1 February 2015. On that morning the applicant was carrying a load from Minchinbury to Marsfield and Balgowlah along the M4 eastbound. The load was for Woolworths and the trailer carried a large sign identifying that company. At the commencement of the video the applicant was driving in the left lane and is seen to be overtaken by several vehicles. That section of the M4 has a speed limit of 110 kilometres per hour. It was accepted that the applicant was travelling at or about 100kph. There was no suggestion that he exceeded the speed limit at any point. 4. As he approached the junction with the M7, the distance between Mr Singh's vehicle and one driven by a provisional driver ("the P-Plate vehicle") also in the left lane was closing. As he was passed by a Commodore, which was in the centre lane, the applicant began to move into that lane with the apparent intention of passing the vehicle in the left lane. At that point the speed limit reduces to 100kph. The Commodore driver applied her brakes (evidenced by the illumination of her brake lights and the relative slowing of the Commodore compared to the P-Plate vehicle and the applicant's vehicle) to adjust her speed to the new limit. The application of the brakes by the Commodore driver occurred before the applicant had completed his move to the centre lane. Mr Peter Lane, an organiser with the TWU who was called to give evidence in the Applicant's case, agreed that was the sequence. 5. The applicant also agreed with that proposition, albeit a little reluctantly. He estimated he was about 80 per cent into the centre lane when the brake lights illuminated for the first time. On my observation it was closer to 50 per cent bearing in mind the length of his vehicle. Mr Singh also sought to criticise the driver of the Commodore for the sudden reduction in speed, suggesting there was a sign about 200 metres earlier warning of an impending reduction in speed. No such sign is apparent on the video. 6. The significance of the timing of the first application of the brakes was simply to suggest, as I understood it, that it was at that point open to Mr Singh to return to the left hand lane should he have chosen to do so. Whether the applicant was 80 per cent or 50 per cent into the lane, I accept that to have been possible. Instead, he elected to sound the horn of his truck for about two seconds. There was no criticism of the applicant for that decision. It was accepted that a warning was appropriate to ensure the Commodore driver was aware of a large truck behind her. 7. It is the next phase of the incident which is rather more controversial. At the point the brake lights are extinguished the Commodore slows to about the speed of the P-Plate vehicle. They then continue at what appears to be the same speed. Similarly, for about four seconds after the horn stops, Mr Singh appears to be travelling at the same speed, because the distance between his vehicle and the Commodore is maintained. Then the distance begins to narrow quickly. There was much debate about whether the Commodore slowed or Mr Singh accelerated. The objective observations on the video are that there is no illumination of the brake lights and the relative positions of the Commodore and the P-Plate vehicle appear constant. I infer that Mr Singh is closing the gap. Whether he was doing so intentionally, at least at first, is a matter which is not clearly established. 8. The next event was a gesture by one of the passengers of the vehicle who raised her arm out of the passenger side window and "gave the finger" to Mr Singh. Again, whether this was in reaction to the closing of the distance between the two vehicles or to the earlier sounding of the horn or a combination of the two is a matter of conjecture. The result was that Mr Singh again sounded the horn of his vehicle and rapidly closed the distance between his truck and the Commodore. I reject Mr Singh's evidence to the effect the Commodore slowed. I am in no doubt that Mr Singh caused, and intended to cause, this closing of the distance between the two vehicles. The relative positions of the Commodore and the P-Plate vehicle continue to be constant. As he closed the distance he continued to sound his vehicle's horn. In fact on this occasion he maintained the sounding of the horn (apart from a momentary hesitation at the beginning) until the Commodore had accelerated passed the P-Plate vehicle and moved into the left lane in front of that vehicle. It was generally accepted by the witnesses that this was a period of some 36 seconds. That time period accords with my observation of the video. 9. I do not wish to be thought to be condoning the behaviour of the Commodore driver or her passengers. The initial braking was clearly intended to be to adjust to the reduced speed limit. The extent of the reduction in speed may have been exaggerated by the observation of a police car parked on the westbound side of the M4. I do not consider that it was intended to be a provocative action but it may well have taken the applicant slightly by surprise. 10. The applicant's initial response was understandable, and equally, not intended to be provocative. 11. It was unnecessary and impolite (to say the least) for the occupants of the Commodore to make the rather rude gestures to Mr Singh, and it was extremely unwise to pump the brakes, as the Commodore driver did on two occasions, as Mr Singh closed the distance between the two vehicles while sounding his vehicle's horn. It is necessary to observe, however, that Mr Singh is a professional driver and would expect to experience frustrating behaviour by other motorists from time to time. Mr Lane gave evidence of the regular occurrence of frustrating behaviour in his experience of travelling the highways of this State. 12. The expectation is that a professional driver will make intelligent and safe decisions when such events occur. In this respect I found the evidence of Mr Michael Freestone, Regional Manager for Toll Contract Logistics, who was called by the respondent, to be particularly persuasive. In cross-examination he said: Q. How do you understand that he was closing the gap? What was he doing to do that? A. On the footage the ‑ look, for me I don't condone either party's behaviour, it is my opinion that it's a road rage incident between the two parties. You can see at different points in time different behaviours, but at one stage you can see the third party moving away and you can see the applicant moving with her and he is sounding the horn, and one has to sometimes consider that if the third party had panicked and hit the brakes it would have been a catastrophe. Q. Indeed. By closing the gap, chasing after her, is he accelerating or something of the sort on your viewing? A. So for me he hasn't behaved as, in my opinion, a professional driver would have who was ‑ if somebody is behaving erratically in front of you, would be to take evasive action, move to a different lane, slow down slightly. In this particular afternoon he went right past the Caltex truck stop, he could have pulled off the highway, he could have taken any sort of evasive action, but instead proceeded to continue and the gap is, if you watch the video at some stage, it is closing and closing and closing and in the initial analysis from Mr Rombouts, in his initial email, the travelling distance is unsafe so you think, three second rule as a minimum, 40 tonne truck, what is going to happen, it's nowhere near there, so, totally unprofessional, totally unsafe, not acceptable. Q. So you are saying that he is not driving safely, and that's your view, obviously, but with respect to getting back to this point about closing the gap, I'm still struggling to figure out what exactly you mean by that, and we can review the video in a moment ‑ and we will ‑ but I just want to know what you mean by ‑ so obviously there is a gap and he is closing that, is he doing that by virtue ‑ is the silver Commodore doing that by virtue of slowing down in your view? A. So you can see the silver Commodore at one stage moves forward and he moves forward with the silver Commodore, but he is closing that gap between himself and the Commodore. Q. Okay? A. So if he knew that they are behaving ‑ and they were ‑ behaving really poorly in the traffic, he should have backed off, got into a different lane, like I said, take the truck stop off ramp, but not engage him and exacerbate it by jumping on the horn, and it is an unnecessary use of the horn. If somebody else and the third party driving next to him got a fright from his behaviour it could have also had a disastrous effect. So the individual in my opinion was behaving unsafe. 1. Mr Freestone impressed as a balanced and careful witness. He readily acknowledged the poor behaviour of the occupants of the Commodore but cast responsibility on the professional driver to behave professionally. 2. As the extract from Mr Freestone's evidence indicates, when the Commodore driver accelerated to pass the P-Plate vehicle Mr Singh accelerated also. He did not attempt to disengage and be grateful that this other vehicle was out of harm's way. He maintained the confrontation sounding his vehicle's horn all the while. That led to a third exchange with the occupants of the Commodore. 3. The driver of the Commodore accelerated so as to be able to position her vehicle in front of Mr Singh's truck with the evident intention of causing him to slow down. Mr Singh reacted appropriately this time, waiting for an opportunity to change lanes and disengage. There was no sounding of the horn, even though the distance between the two vehicles was clearly unsafe. That was not Mr Singh's fault on this occasion. It begs the question why he did not behave that way on the first occasion. There was however a final exchange. 4. About four minutes later the Commodore, travelling in the centre lane, passed Mr Singh's truck which was in the left lane. It appears one of the passengers takes a photograph of Mr Singh as they pass. Mr Singh again sounded the horn, this time for about three seconds. His evidence, which was not borne out by the video, was that the Commodore came too close to his vehicle as it passed. The video shows that the Commodore is, if anything to the right of centre of the centre lane. It was no closer than several other vehicles (including the Commodore on two other occasions) which passed or were passed by Mr Singh in the course of the video. I reject his explanation. I conclude he was reacting to the photograph being taken. 5. I note that the translation put into evidence of Mr Singh's telephone conversation taking place throughout these events, contains a passage in connection with the file depicting this final interchange in which Mr Singh is heard to say "She fucking came very close". The translator notes at that point that Mr Singh laughs. The laughter occurs on the video well after the horn has been sounded and the Commodore has moved on. The conversation seems to be an account of the whole incident rather than a description of what was happening at that instant. That accords with the conversation recorded in relation to later files as Mr Singh discusses with his interlocutor the whole of the events as well as other matters. I do not regard this evidence as supporting Mr Singh's explanation of why he sounded the horn on third occasion. 6. I observe parenthetically that there are other times in the video when the distance between the applicant's truck and other vehicles in the same lane was as close, if not closer than, the Commodore, and yet the applicant did not sound his horn or show any other sign of concern. It appears that the Commodore was a particular cause for concern, I infer, because of the behaviour of the occupants. 7. As to the telephone conversation Mrs Hunt submitted: "Mr Singh's conversation during the incident was transcribed from Punjabi to English and Mr Singh confirmed in cross examination that it is an accurate translation. Mr Singh was particularly defamatory with respect to the women in the vehicle ahead, using a vulgar expression about them repeatedly. The Respondent contends that this demonstrates Mr Singh's state of mind during the incident, and is serious cause of concern with respect to Mr Singh's capability as a professional driver in the Sydney metropolitan area with high traffic volumes. The Respondent submits that Mr Singh spoke so disparagingly about the women in the car ahead because he did not think the dashcam was recording sound." 1. I accept the submission of the TWU that there is no suggestion that Mr Singh was expecting his conversation to be heard by anyone other than his interlocutor. The windows of his truck were closed and his tone and volume of voice remained moderate throughout. Nevertheless, the language used to describe the occupants of the Commodore was vulgar, discriminatory and disparaging. It supports my view, earlier expressed, that Mr Singh was annoyed with the occupants of the Commodore. 2. As to the proposition that Mr Singh did not think that the dashcam was recording sound, it is clear that the applicant was aware that the dashcam was recording video because he refers several times (during the conversation) to being able to rely on it. I conclude from his statements during the conversation that he anticipated a complaint from the occupants of the Commodore and regarded the video as evidence in his favour. In my opinion, however, his statement to his interlocutor that "The speaker is not on" is a reference to his telephone or telephone system - not the dashcam. 3. The applicant was engaged in a "hands free" telephone call while driving and was reassuring his interlocutor (who could not be heard speaking at any point) that he was not on speaker. The statement referred to does not support a finding that the applicant did not think the dashcam recorded sound. It may be inferred, however, from his intention to rely on the video and the proposition that he did not intend his comments to be heard (other than by his interlocutor) that he did not think that the dashcam was recording his side of the conversation. Equally, it is highly unlikely that Mr Singh would have used the language he did in relation to the occupants of the Commodore if he thought he was being recorded. 4. Mr Singh's explanation given in cross-examination was as follows: Q. So you will show Toll the camera? A. Yep. Q. You were asked something and you say, "The recording, yes, no, not on the speaker, the speaker is not on"? A. Yes. Q. And you are saying it's about something else, not about this incident? A. Yes. After like I said to him I will show them that this record, and he say something else to me and I said, "Don't worry, this is not on", some kind of my community conversation, and I said just like make a laugh on him, I'm not recording anything, that word, that record, yes, no, not on the speaker, something like that. That part is not related to the camera, that is related to my phone and my friend like when I talking to him, he say something to my community have, I said, "Don't worry, it's not on speaker and I'm not recording it." Q. What was your understanding at the time in your vehicle? Did you believe that this was being recorded or not? Did you believe sound was being recorded or not? A. No, I don't know about that, I didn't know about that time that my camera recording voice or not. 1. It follows from my finding above I accept he is referring to his phone, not the dashcam, when he refers to "the speaker". However I regard the balance of the explanation implausible. As I have observed, Mr Singh is reassuring the other person that he is not being recorded. That is not consistent with him making a joke. Perhaps the other person had made a joke because I note that on the video the applicant can be heard to laugh before he refers to "the speaker". In any event, the explanation reveals little as to Mr Singh's awareness of the capacity of the dashcam to record sound. This issue requires further consideration in connection with the ground of being untruthful to management. 2. I find that Mr Singh's behaviour in closing the distance between his vehicle and the Commodore while maintaining a sustained use of the horn was unprofessional and intimidating. In this respect I note that even Mr Lane, although doing his best, consistent with his duty as a witness, not to say anything to the detriment of his member, conceded in cross-examination that the sustained use of the horn on the second occasion was excessive, unprofessional and could be perceived as intimidating. 3. I also regard the behaviour as dangerous. The applicant was confronted by a situation in which another driver was behaving badly, including by pumping her brakes when only a short distance in front of a very large vehicle travelling at high (albeit lawful) speed. A moment too long on the brakes by the Commodore driver could have, to use Mr Freestone's language, led to catastrophe. The applicant's duty was to take appropriate action to disengage. Instead he exacerbated the danger as the Commodore accelerated by accelerating after it and rapidly closing the gap between the vehicles while maintaining the sounding of his vehicle's horn. That behaviour, particularly in such a large vehicle, 14.6 metres long and weighing 40 tonne, was aggressive, intimidating and dangerous. 4. I should make clear that my finding that the behaviour was dangerous is made in a civil, not criminal, context and is accordingly a finding on the civil standard. The submission as to unlawful behaviour requires a slightly different approach. 5. Although these are civil proceedings, not criminal, the allegation is that the use of the horn on the second occasion was unlawful in that it was contrary to Rule 224 of the Road Rules 2014 (NSW) (the "rules"). That Rule provides: 224 Using horns and similar warning devices A driver must not use, or allow to be used, a horn, or similar warning device, fitted to or in the driver's vehicle unless: (a) it is necessary to use the horn, or warning device, to warn other road users or animals of the approach or position of the vehicle, or (b) the horn, or warning device, is being used as part of an anti-theft device, or an alcohol interlock device, fitted to the vehicle. Maximum penalty: 20 penalty units. 1. Rule 10-1 of the rules makes clear that the rules create offences to be dealt with on the criminal standard. I make clear that my determination is not to that standard because of the nature of these proceedings. I do however approach the resolution of this issue bearing in mind s 140(2) of the Evidence Act 1995 (NSW) and the principles reflected in the decision of Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. For a recent discussion of the intersection of these principles see Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations (No 3) [2015] NSWIC 8 at [93]-[105]. 2. In my opinion, having regard to my findings above, particularly at [30], [31] and [42], it was not necessary for the applicant to use the horn on the second occasion to warn other road users of the approach or position of the vehicle. It was moreover unnecessary to sustain the use of the horn for 36 seconds. I conclude this behaviour was unlawful. I accept that driving dangerously and unlawfully amounts to serious misconduct. Being untruthful when questioned 1. The respondent submitted: 36. When Mr Singh was called in to discuss the incident, and the footage was shown without sound, Mr Singh was asked if the footage had sound and he answered "No". He did not answer. "I don't know" as he would have us believe. He assumed on the Sunday while driving, and told his friend, that the dash cam doesn't record. He has made a great fuss out of the response that he gave. It is Mr Harper and Mr Rombouts' evidence that he answered "No." 37. There are three witnesses who say that Mr Singh answered to the question, did you use your horn, "Only twice, beep, beep." Mr Hemming and Mr Rombouts stated that Mr Singh used his hands to demonstrate using the horn when he said "beep, beep." Mr Singh goes to pains to say that he said, "Just twice.", and that he did not say "beep, beep." 1. Thus there are two aspects to this issue. The first is whether the applicant told management the dashcam did not record sound or whether he said he did not know whether it recorded sound. The second relates to his answers as to the frequency and mode of use of the horn. Having regard to the nature of the allegations I approach the consideration of the evidence bearing in mind s 140(2) of the Evidence Act and the principles reflected in the decision of Briginshaw. 2. On 2 February 2015, Mr Nathan Harper, then Operations Manager Toll Contract Logistics, and Mr Daniel Rombouts, then Business Manager Toll Contract Logistics, met with the applicant to discuss a complaint received from Woolworths. Also present was Mr Gary Grewal, a subcontractor, although his presence was, it appears, coincidental. Mr Andrew Hemming, Transport Manager from Woolworths, joined the meeting part way through. 3. During the meeting the applicant produced the video recording. He was asked whether the recording had sound. In his statement in chief the applicant said at [54]; "Due to technical difficulties, the sound did not play at the meeting. Mr Rombouts attempted to play the sound but without success. After this happened Mr Rombouts asked 'Does this record sound' to which I replied 'This is the first time I've used this in my laptop, I don't know.'" 1. According to Mr Rombouts and Mr Harper, the applicant was asked whether the dashcam recorded sound and the applicant replied "No". 2. As to this first aspect the applicant submitted that Mr Singh's evidence should be preferred. 3. In his statement, Mr Rombouts said that Mr Singh simply responded "No" to the question of whether the dashcam recorded sound. However, he conceded in cross-examination that it was possible that Mr Singh may have said "I don't know" in addition to saying "No". 4. Mr Harper, in his statement, said that Mr Singh simply said "No" in response to the question. In cross-examination he said that he did not recall Mr Singh saying "I don't know" or words to similar effect. He did recall Mr Singh saying something to the effect that his dashcam was new. 5. I regard Messrs Rombouts and Harper as credible witnesses. On this issue their evidence does not rise so high as to deny that Mr Singh said "I don't know" even if he did say "No" as well. Indeed, their evidence acknowledges the possibility that he may well have disclaimed knowledge as to whether the dashcam recorded sound. In those circumstances I find that the allegation that the applicant was untruthful on this aspect was not made out. 6. For completeness I make two observations. First, that Mr Hemming's evidence was not of assistance on this issue. He joined the meeting after it had begun and recalls that someone said "No" when he asked whether the dashcam recorded sound. He could not recall who made the response and agreed that it could have been either Mr Rombouts or Mr Harper. 7. Second, I earlier made a finding, at [41], that the reference to "the speaker" was a reference to the phone and revealed little as to the applicant's awareness of the capacity of the dashcam to record sound. That finding is consistent with my conclusion at [56]. I have not overlooked the possibility that Mr Singh's reassurance to his interlocutor may have implied he thought the dashcam did record sound but the other party would not be recorded because he was not on speaker. Having regard to the applicable standard and the totality of the evidence I regard such a conclusion as too remote. The statement is equally consistent with a conclusion that Mr Singh did not know but was able to reassure the other party in any event. I also consider it unlikely that Mr Singh would have said the things he did say about the occupants of the Commodore if he knew that the dashcam was recording sound, particularly given that he had, at the same time, the intention to use the video in his defence should the need arise. 8. I accept the applicant's submission on this aspect. 9. As to the second aspect, each of Messrs Harper, Rombouts and Hemming said in their statements, and maintained in cross-examination, that the applicant was also asked whether he used his horn, and the applicant replied with words to the effect: "Yes, I used it twice. It was beep, beep" (Rombouts) "Yes, on two occasions. It was beep, beep." (Harper) "Yes, only twice. Just beep, beep" (Hemming) 1. I do not regard the slight differences as significant. Each of Messrs Harper and Hemming also described a gesture made by Mr Singh as he gave his answer to them. They said he moved his hand imitating two short pushes on the horn. 2. In his statement in chief Mr Singh's evidence as to this aspect was: During the video being played through 'Anthony' asked if I used my horn. I told him that I did, on two occasions, and I also flashed my lights to warn the driver. 1. Earlier paragraphs in the statement make clear that the reference to "Anthony" is a reference to Mr Hemming. 2. In his statement in reply Mr Singh disputed Messrs Rombouts and Harper's versions of his answer and adhered to his version quoted above. In cross-examination he said: Q. And he asked you, "Did you use your horn?" And you answered, "Yes, on two occasions. It was beep, beep." That's what you said, isn't it? A. No, on that time, even I don't know whether beep, I just said normally, yes, I do it occasionally, and I gave using flashing lights as well. Q. You said and you used your hands and you said "Beep, beep", didn't you? A. No. 1. After the respondent had discovered that sound was available on the video recording and accordingly became aware of the extended use of the horn, a further meeting was convened on 3 February 2015. Present were Messrs Harper and Rombouts, the applicant and Mr Mark Trevillian, the TWU Site Delegate, who was present to represent the applicant. Mr Rombouts' evidence as to the conversation at that meeting was: Mr Rombouts: Are you happy with Mark as your representative. Is that correct? Mr Singh: Yes. Mr Rombouts: Yesterday when we looked at the footage, you told me that you used your horn once when the car slowed down. Is that correct? Mr Singh: Yes, when the other car slowed down I gave a short beep. Mr Rombouts: You told Andrew and myself that you beeped your horn once. Does your footage have sound? Mr Singh: No, I'm not sure. Mr Rombouts: How many times did you beep your horn? Mr Singh: Only once or twice, I gave a short, beep, beep, then I stopped 1. Mr Rombouts then replayed the entire video and sought an explanation from the applicant as to his use of the horn. He then said: "There are two issues here, and they're very serious issues. One, your on-road behaviour, and two, lying to management about your actions. This only happened yesterday. You're aware of what you've done but you've not disclosed it. I'm standing you down and want you to come back tomorrow and explain why you have lied to me. Please put it in writing." 1. Mr Harper, who took notes at the meeting which were tendered, gave a similar account. The applicant's evidence in his statement in chief, which he maintained in his statement in reply was a more accurate account of the meeting was: On 3 February 2015 I attended a meeting at the Toll Minchinbury depot with Mr Trevillian, Mr Rombouts, and Mr Harper. Mr Rombouts told me that they had obtained sound from the video and I had lied to Toll about the audio. 1. Mr Trevillian was not called to give evidence. No reason was advanced as to why he was not called, and the respondent submitted that I should draw the inference that Mr Trevillian's evidence would not assist the applicant. The applicant made no submission disputing that proposition and I can see no reason why I would not draw that inference. I accept the evidence of Messrs Rombouts and Harper as to what transpired at this meeting. 2. The applicant did provide a handwritten response, a typed version of which was annexed to his statement in chief and marked "AS-05". He produced it to Mr Rombouts on 4 February 2015. In it he said as to this aspect: "While I was showing the videos I do tell them that I used horn just to make her aware, as my intention wasn't hide anything from anyone. On that day while I was showing them the videos I wrote a letter as well but it slipped from my mind to write down about horns that I was using it in order to forewarned other vehicles and people on the road that there was a car in front of my truck which is driving dangerously and using hard breaks but I do tell them verbally. As my speed went down 85-90 kph. due to which I blow horn." 1. The evidence did not reveal anything as to the existence of the letter to which Mr Singh refers in this passage. The passage does tend to confirm the evidence of Messrs Rombouts, Harper and Hemming as to what Mr Singh had told them the previous day about the use of the horn. It seeks to excuse the failure to disclose the extended use of the horn as an oversight. 2. The applicant submitted: Mr Singh has throughout the process maintained that he used his horn, and has not resiled from the fact that he believes that he used his horn correctly on 1 February 2015. Such a position indicates that the more likely response to the Respondent management questioning is that Mr Singh would have indicated that he used his horn twice and not that he said 'beep, beep.' 1. It follows from my earlier findings that I do not accept that the use of the horn on the second occasion constituted correct usage. I accept the evidence of the respondent's witnesses that Mr Singh used the term "beep, beep" and sought thereby to create an impression of moderate and proper use of the horn. Mr Singh's written explanation also, in seeking to explain his second use of the horn as an oversight, undermines the submission that the expression "twice" should be taken to include the sustained second use of the horn. I reject the applicant's submission. I reject also the suggestion in AS-O5 that this use of the horn had, in the space of 24 hours, slipped from Mr Singh's mind. The applicant was asked directly about his use of the horn. That would cause him to think about that use. I find it impossible to accept that he had forgotten a 36 second sustained use of the horn the previous day. 2. Accordingly I find that the applicant was untruthful to management as to this aspect. Damage or Potential Damage to Respondent's Reputation 1. The respondent submitted that this aspect turned on whether: the Applicant's conduct during the investigation in being untruthful as to the use of the horns, in the presence of a representative of Woolworths damaged the reputation of Toll or has the potential to damage Toll's reputation. 1. The issue of reputational damage was expressed more broadly in the respondent's opening submissions. It was put: The Respondent submits that the actions of the Applicant in driving the highway with excessive use of the horn did cause damage to Woolworths' reputation, or had the potential to cause damage to the reputation of Woolworths. The Respondent submits that as an extension of the services provided by the Respondent, the actions of the Applicant did cause damage to the Respondent's reputation (between itself and its customer, Woolworths), or had the potential to cause damage to the reputation of the Respondent. The Respondent submits that the Applicant's willingness to lie when asked a direct question in the presence of the customer did damage to the Respondent's reputation, or had the potential to cause damage to the reputation of the Respondent. 1. I can understand how the reputation of Woolworths may be tarnished by the applicant's behaviour while towing a trailer with its name emblazoned on it. I can also understand how Woolworths may regard the respondent as, at least in part, accountable for that reputational harm and therefore the respondent's reputation as a supplier of logistics services may be harmed by the applicant's driving conduct. I am prepared to accept those submissions supported as they were by evidence of public complaint as to the applicant's driving conduct. 2. I am less readily able to understand however, how it is said the applicant being untruthful during the investigation can have the potential to damage the respondent's reputation unless it is said that it creates the impression that its selection of contractors is in some way lacking. 3. I note that these submissions are put in the context of a breach of the Contract Carrier Agreement the relevant paragraph of which (i.e.cl 10.2c) is set out in [14] above. That paragraph is made conditional on "Toll's opinion". Such an opinion, in my view must be reasonably based. For the reasons expressed above I am prepared to find a breach of the contract in the context of the driving conduct. 4. Beyond maintaining that it was the respondent's position that a contractor being untruthful in the course of an investigation had the effect or potential effect of damaging the respondent's reputation, no submission was made as to why or how that is so. It is not for the Commission to speculate as to such matters and accordingly I make no finding of that kind. Failing to Provide a Satisfactory Mitigating Response 1. Consistent with my earlier findings, I accept that the applicant did not provide satisfactory explanations for either his sustained use of the horn and the associated driving behaviour or his failure accurately to inform management of the true course of events on 1 February 2015. 2. The applicant also submitted, relevantly to this aspect, that Mr Singh was not given a proper opportunity to respond. The applicant submitted: The third matter in issue that arises out of the proceedings is whether Mr Singh had a proper opportunity to respond. Although there is some dispute between the witnesses as to who was present at each meeting and at what time Mr Singh was asked to leave a meeting, what is agreed is that in a number of meetings prior to the termination of his contract of carriage, Mr Singh was asked to wait outside of the room. 1. The evidence did reveal that at some meetings Mr Singh was asked to wait outside while his representatives, Mr Trevillian and/or Mr Lane, had discussions with the respondent. The request for him to leave the room, however, appeared to me to be made by his representatives not the respondent. On one of the two occasions it appears that was done for the purpose of allowing his representatives to test the waters as to the respondent's willingness to consider a financial settlement. The substance of that potential settlement was subsequently discussed between the applicant and Messrs Lane and Trevillian. The applicant decided to reject that possibility. 2. In any event it does not appear to me that Mr Singh was deprived of an adequate opportunity to respond. In particular, at the meeting of 3 February 2015 Mr Rombouts squarely put to Mr Singh the respondent's two major concerns and asked Mr Singh to reply in writing. He did so on 4 February 2015. There was no substantial meeting on that day because Mr Trevillian was away ill. A further meeting took place on 13 February 2015 following Mr Trevillian's return to work. That meeting rapidly developed into settlement discussions at the instigation of the applicant's representatives. A further meeting was then scheduled for the morning of 16 February. Mr Singh declined to attend on the basis that he was ill by reason of stress. He did however go shopping with his wife on that morning. 3. I am satisfied that the applicant was given a proper opportunity to respond and he took that opportunity, at least up to the last scheduled meeting. He put forward his response to the respondent's concerns. His response was not accepted as an adequate explanation. 4. The applicant submitted also that because Mr Singh was not provided with the allegations in writing he was deprived of a proper opportunity to respond. I reject that submission in the circumstances here applying. The allegations were not complicated and were conveyed clearly. I note also the applicant was professionally represented throughout by his union and there was no suggestion at any time that a written "charge sheet" was necessary. Other Matters 1. There was some contest as to Mr Singh's prior history of engagement with the respondent, directly or indirectly. I don't find it necessary to resolve all of those issues. It is clear that Mr Singh's engagement was not without some concern, whether completely justified or not, by the respondent. He had been contracted only for a short period of a couple of weeks when these events took place. Even with the prior periods of service this is not a case of a person with a long and satisfactory history of service. 2. The applicant relied upon the relatively recent acquisition of the truck needed to undertake the carrying contract with the respondent and the financial commitments entered into for that purpose. In his statement in chief, dated 19 May 2015, Mr Singh said: Since my termination I have found it hard to obtain work. I have obtained some on call work through KKS Pty Ltd providing general freight services as required, this commenced in early March 2015. The work is sporadic and some weeks no work is available. Since commencing with KKS I have billed them approximately $10,000 (gross). 1. The respondent's statements, when filed, indicated that up to 16 May 2015 Mr Singh had earned around $47,000 (inclusive of GST) with KKS Pty Ltd. In his statement in reply Mr Singh agreed that was true. He offered no explanation at that point for the significant understatement of his earnings. In cross-examination Mr Singh did not provide an acceptable explanation for this significant understatement. At one point he suggested that when he was asked the question he did not look at his accounts so he was not sure what he had earned. That is not a satisfactory approach. Later he suggested the $10,000 represented his net earnings. This latter explanation was not consistent with his earlier explanation of not having checked nor with the words "I have billed them approximately $10,000 (gross)" (emphasis added). 2. Other unsatisfactory elements in this part of his evidence are: 1. The statement that the work commenced in early March when in fact it commence on 20 February; 2. The statement that the work was sporadic when in fact he had worked every week to that point (Mr Singh sought to explain this by saying he did not work every day); 3. The statement that "some weeks no work is available" which is inconsistent with the explanation above about not working every day and the evidence which showed that he had in fact worked every week. 1. It is evident that English is not Mr Singh's first language but he has a very good command of that language and I do not accept that the inconsistencies here revealed are due to any language difficulty. Rather I conclude that Mr Singh is inclined to present material in a way perceived to be favourable to him. He is at the very least careless with respect to the accuracy of material he advances as evidence. 2. There were other contests of fact between Mr Singh and Ms Sellwood, an Assistant Store Manager at Woolworths Wentwothville store, and Mr Grewal, director of a company providing transport services to the respondent. 3. On the morning of 16 February 2015, as noted above, Mr Singh did not attend the scheduled meeting with the respondent but did go shopping. He went to Woolworths Wentworthville. There he spoke to Ms Sellwood (and initially her Group Manager) about his current problems with the respondent and Woolworths. Ms Sellwood made a report in which she noted that Mr Singh (she did not know his name): had said that he wanted to talk to someone high up in Woolworths; outlined his investment in a truck to do work for Woolworths: said that Toll had terminated him; and he would go to Today Tonight. Ms Sellwood described the circumstances of the conversation as Mr Singh approaching her and her manager who were in conversation outside the front of the store. She also said they walked towards her office as they spoke and she made a phone call to a Mr Cox to obtain information which she conveyed to Mr Singh. 4. Mr Singh admitted he had a conversation but disputed the circumstances as described by Ms Sellwood and the substance of the conversation she recorded. He denied saying he wanted to speak to someone high up in Woolworths or that he would go to Today Tonight. He also denied approaching Ms Sellwood. He said it was a chance conversation at the checkout while his wife paid for their purchases. 5. Mrs Singh gave some evidence in cross-examination which corroborates in part her husband's version and in part Ms Sellwood's version as to the circumstances. She gave no evidence as to the substance of the conversation. 6. Ms Sellwood did not know who Mr Singh was or any of the issues he raised with her except through him. She made a contemporaneous note of the conversation and a general report. She had no reason to concoct the conversation or the circumstances. She appeared a careful and disinterested witness and I accept her evidence. 7. The only reason I can conceive for Mr Singh's desire to dispute her evidence is a concern that he would appear to be threatening trouble for Toll and/or Woolworths through embarrassing adverse publicity or the like. It certainly is not because it challenges his explanation for not attending the meeting because he readily admits being at the store and having a conversation. It strengthens my conviction that Mr Singh is prepared to frame his evidence to meet his perceived needs. 8. The circumstances of the dispute with Mr Grewal are even more stark. The respondent had developed a concern that Mr Singh may have been considering some form of self-harm. Mr Singh denies that he was but admits that he made contact with Toll's Employee Assistance Hotline and mentioned the stress he and his family were under and that he did use the word "suicide" but did not intend that it should be taken as a threat of self-harm. Nevertheless the respondent took steps to address their concern. Mr Freestone attempted to contact Toll's chaplains, asked that Mr Grewal speak to Mr Singh and asked that the Police be notified of Toll's concerns. 9. In his statement in reply Mr Singh denied that Mr Grewal contacted him. Accordingly, Mr Grewal was called and gave evidence that Mr Rombouts asked him to contact Mr Singh because "he was concerned about his welfare". He called Mr Singh and made a note of the conversation. He reported to the respondent that Mr Singh said he was okay. 10. In cross-examination he said he was sure he spoke to Mr Singh, he knew him well, both in the "Yard" and in the community. He could not explain why Mr Singh would deny the conversation. Again Mr Grewal impressed as a credible and disinterested witness. I accept his evidence. 11. Like Mr Grewal, I cannot conceive of why Mr Singh would deny the conversation but it is another circumstance where he gives evidence directly contradicting that of another witness whose evidence I accept. 12. These observations on the credit of Mr Singh have an impact, not only on my various findings as recorded above, but also in relation to a submission from the respondent that they have lost trust and confidence in Mr Singh. The respondent submitted: This loss of trust and confidence is soundly based. The Respondent views Mr Singh as somebody who fails to tell the truth in difficult circumstances that might not be to his advantage. 1. I accept that submission. It accords with my observations and findings. Conclusions 1. I find that: 1. the respondent had a justifiable basis for the termination of the contract; 2. the process of investigation was fair; 3. the decision to terminate was reasonable and proportionate to the misconduct identified; and 4. although the applicant had only relatively recently purchased the truck, the evidence showed that it was possible to find alternative work (in fact the applicant had done so almost immediately after termination of the contract) and accordingly I am not satisfied that the decision to terminate was harsh. Order 1. The application is dismissed. ********** 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: 11 November 2015