Industrial Relations Commission New South Wales Medium Neutral Citation: Hammond v Direct Couriers Pty Ltd [2017] NSWIRComm 1004 Hearing dates: 18 November & 7 December 2016 Decision date: 10 February 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The respondent is to pay as compensation to the applicant an amount equivalent to one month's remuneration Catchwords: CONTRACT OF CARRIAGE – contract carrier – termination of contract – complaint to Anti-Discrimination Board – distribution of confidential communication – Formal Warning – contract driver died in traffic accident – allegation of driver fatigue – applicant accused respondent of causing death – complaint to SafeWork NSW – no evidence of drivers working while fatigued – Absolute Final Warning – allegation of aggressive and abusive behaviour – complainant refused to be interviewed – investigation – applicant denied allegation – contract terminated – termination found to be unfair – reinstatement impracticable due to past record – respondent ordered to pay applicant one month's remuneration Legislation Cited: Industrial Relations Act 1996 Anti-Discrimination Act 1977 Cases Cited: Cherry v Allied Express Transport (1997) 73 IR 305 Category: Principal judgment Parties: Transport Workers Union of NSW o/b Victor Hammond (Applicant) Direct Couriers Pty Ltd (Respondent) Representation: Counsel: Mr O Fagir (Respondent) Solicitors: Mr G Webb, Transport Workers Union of NSW (Applicant) Mr G Selig, Mark Diamond & Associates (Respondent) File Number(s): 2016/00198353 DECISION 1. The Transport Workers Union of NSW ('TWU') has made an application on behalf of its member, Victor Hammond, pursuant to section 314 of the Industrial Relations Act 1996 ('Act'), for a contract determination with respect to the reinstatement of the contract of carriage which existed between Mr Hammond and Direct Couriers Pty Ltd ('Direct'). The contract of carriage was first entered into by the parties on 3 July 2006 and was terminated by Direct on 29 March 2016. 2. On behalf of Mr Hammond, the TWU claims reinstatement and compensation for loss of income between the date of termination and the date of reinstatement. In the alternative, a claim is made for 26 weeks' pay as compensation. 3. The termination of Mr Hammond's contract followed an incident which occurred at the premises of a client of Direct, Hewlett Packard ('HP'), at Rhodes on 4 March 2016. It was alleged that Mr Hammond had been aggressive and abusive towards a female employee of ISS Facilities Services ('ISS'), a company which provided security and services for HP at the Rhodes site. Mr Hammond denied the allegation. Background 1. Since his initial engagement as a contract driver with Direct in 2006, Mr Hammond has performed ad hoc point to point courier work for the company. He owns a Toyota HiAce one tonne van which he purchased, operated and maintained for the purpose of his work for Direct. 2. Since July 2012, Mr Hammond has been the TWU's senior delegate at Direct's Banksmeadow site. 3. Mr Hammond's engagement with Direct has been marked by a series of disciplinary issues beginning in 2009. According to Direct, these issues included the following matters: 1. In July 2009 a client of Direct requested that Mr Hammond not attend their site. The reason given was that he "hasn't done anything specifically wrong as such, he just dicks around, chats to everyone, is slow and is not the sort of driver they want in there". 2. On 25 February 2013 Mr Hammond received a breach notice for failing to deliver as instructed by Direct, causing Direct to credit the value of the job back to the client. 3. On 20 February 2015 Mr Hammond was issued with a breach notice for refusing to perform three jobs. 4. On 27 February 2015 Mr Hammond was issued with a further breach notice for refusing to complete another delivery. 5. On 11 August 2015 Direct's fleet manager sent Mr Hammond a letter asking him to explain his delivery patterns of 25 June and 14 July 2015. 6. A further letter was sent to Mr Hammond on 17 August 2015 asking him to explain the issues raised in the letter of 11 August as well as his delivery pattern of 13 August 2015. Mr Hammond failed to attend the meeting which he had been requested to attend and did not contact Direct and offer any explanation as to his movements or his failure to attend. 7. Following his failure to attend the meeting as requested, a message was sent to Mr Hammond advising him that he would not be allocated further work until he attended the site. On 1 September 2015 Mr Hammond attended a meeting on site with the TWU to discuss his noncompliance with the contract determination which applied to his work. First Formal Warning 1. On 17 September 2015 Mr Hammond lodged a complaint against Direct under the Anti-Discrimination Act 1977 in which he claimed that he was victimised because he had assisted another contract driver with a complaint against Direct before the Anti-Discrimination Board ('ADB'). Ultimately, Mr Hammond did not proceed with his complaint to the ADB. 2. In his role of assisting the other contract driver who had lodged a complaint with the ADB against Direct, Mr Hammond came into possession of a confidential communication to that contract driver from Direct concerning the matter before the ADB. Mr Hammond distributed this communication to a number of other contract driver engaged by Direct. As a result of this incident, Mr Hammond was issued with a written formal warning which contained the following: ... On any analysis your actions are serious misconduct. The only reason we have not taken action to terminate your contract is out of respect for your long service to the business. Were it not for that you would be out of Direct Couriers. This letters constitutes a Formal Warning. If there is any further instance of misconduct by you in relation to any aspect of your engagement with Direct Couriers then you will be at severe risk of your contract being terminated. We urge you to heed this Formal Warning. Absolute Final Warning 1. On 22 January 2016, one of Direct's contract drivers died in a traffic accident whilst carrying out a delivery for Direct. Ms Judith Hannah, Direct's Human Resources Manager, spent that afternoon and evening dealing with matters arising from this incident, which included liaising with the NSW Police and SafeWork NSW, as well communicating with the deceased driver's family. 2. Shortly after Ms Hannah arrived home that evening at about 8.00pm, she received a call on her mobile phone from Mr Hammond in relation to the deceased driver. In that call, Mr Hammond said to Ms Hannah "You killed him". He went on to claim that the cause of the driver's death was fatigue resulting from Direct pushing him, refusing to give him rest breaks and working him too many hours. According to Ms Hannah, Mr Hammond was yelling at her and unable to control himself. 3. On 27 January 2016 Direct received advice from SafeWork NSW to the effect that it would not be investigating the incident "at this stage". 4. On the following day, 28 January 2016, the partner of the deceased driver advised Direct that an autopsy conducted on the deceased disclosed that the cause of death was a genetic heart condition which was described as a "ticking time bomb". 5. On 2 and 3 February 2016 a SafeWork inspector came to Direct's premises in response to a complaint by Mr Hammond. The inspector reviewed all the records of the deceased driver as well as Mr Hammond's records and those of another driver chosen at random. According to Ms Hannah, at the end of the two day inspection, the inspector told her that he had found no evidence of drivers working while fatigued. The inspector also mentioned that Mr Hammond's name would be "flagged" on the SafeWork NSW database and that he would have to produce substantial evidence of a breach before they would again come out to the site at his instigation. 6. At around the same time, Ms Hannah was advised by Mr Jim Papadimitriou, Direct's Operations Manager, that Mr Hammond was telling other drivers that Direct was involved in a cover-up and that the company was responsible for the driver's death. 7. Following an investigation, on 26 February 2016, Mr Hammond was issued with an "Absolute Final Warning". This letter recited Mr Hammond's past disciplinary issues and also referred to his "outrageous phone call" to Ms Hannah on the night of 22 January 2016. The letter concluded in the following terms: The only reason we are not terminating your contract is because of your long service. There is no other reason. In virtually any other workplace you would have been gone long ago. However, Direct Couriers is a tolerant and patient company. We believe we have been extremely considerate which accounts for our decision to give you one last chance with this Absolute Final Warning. We need to be very clear on this point: if you fail in your obligations under your contract in any way whatsoever then your contract will be terminated. No more warnings will be issued. This is your very last chance. The words Absolute Final Warning mean what they say. Incident of 4 March 2016 1. On 9 March 2016, Direct's Sales Director, Mr Gary Yovich, was asked by Ms Penny Stone, National Operations and Compliance Manager for ISS, that two of Direct's drivers, Mr Hammond and Ms Shirley Clarke (who is Mr Hammond's partner), be taken off the HP contract with Direct and not return to the Rhodes site. Ms Stone followed up this request with an email to Mr Yovich. That email went into some detail about the conduct of Ms Clarke whilst on the Rhodes site. Ms Stone complained that, on Monday 7 March 2016, Ms Clarke had become "irate, rude and raised her voice to me in the Rhodes mailroom in front of customers, ISS team members and another contractor, accusing me of trying to take away her job." 2. Further to her complaint about Ms Clarke, Ms Stone went on to state as follows, in relation to Mr Hammond: Additionally, one of our team reported to me that on Friday, Shirley's husband was abusive to her and shouted at her – this is also unacceptable. 1. Ms Hannah followed up the matter with Ms Stone and was provided with an email dated 9 March 2016 from Ms Bianca Naidu, an employee of ISS, in the following terms: Hi Penny, I would like to inform you of an incident which occurred on Friday, 4 March 2016. 1. Victor Hammond who is a Direct Courier driver and is contracted to HPE/HPI sites for Rhodes and Rhodes Corporate Park. In the morning approximately at 9am, Victor was discussing some mail related things with Daniel Mellor (our mailroom officer). The discussion was peripheral to me as I was focused on my task at hand 2. Victor and Daniel then left, Daniel had to go to Rhodes SN01 site to do some work, I am not sure where Victor went, I was left alone in the mailroom 3. There was a large red trolley sitting outside the mailroom 4. Alex Pappas, my manager came to visit me and asked if he could take the large red trolley back to the loading dock and I said yes 5. Approximately 10 to 20 minutes later, Victor returned to the mailroom 6. He asked where the large red trolley went and I responded, Alex had taken it back to the loading dock 7. Victor then became very upset and raised his voice at me, he very loudly explained to me that the red trolley was placed there by himself and that he was returning with the Ute which he had parked downstairs in the basement and he was going to take the red trolley down and unpack the Ute and bring the boxes up on the trolley 8. From observation Victor seem agitated, frustrated and his body language changed to show the frustration 1. It is noted that Ms Naidu's email does not include the terms "was abusive to" and "shouted at" which appeared in Ms Stone's email to Mr Yovich describing Mr Hammond's conduct towards Ms Naidu. 2. Upon receiving this complaint, Ms Hannah tried to speak directly to Ms Naidu. Ms Naidu declined to be interviewed by Ms Hannah, saying that she had provided all the information on the matter in the email to Ms Stone. 3. On 17 March 2016, Mr Hammond was suspended on pay pending an investigation into the incident. He was given a 'Show Cause' letter. In that letter it was alleged that Mr Hammond had "shouted at a HP employee", had "become angry" and had displayed "aggressive behaviour towards our customer". 4. In a written response to the 'Show Cause' letter, Mr Hammond claimed that Ms Naidu had yelled at him. He denied that he had yelled at anyone and described the incident as a "non event". Mr Hammond also stated that "consideration should have been taken of an unblemished behaviour of the last six years at HP". 5. On 29 March 2016, Mr Hammond attended a meeting with Ms Hannah and Mr Papadimitriou. Also at the meeting was Mr Ian Sherwood, a TWU official. Mr Hammond denied that the incident of 4 March 2016, as reported by Ms Naidu, had occurred. He claimed that Ms Naidu had yelled at him and that she had previously made complaints about other drivers. According to Mr Hammond, he was not abusive to Ms Naidu and stated "Nothing happened". 6. It emerged that, after the incident on 4 March 2016, Mr Hammond had contacted the TWU. Mr Sherwood claimed that Mr Hammond had contacted him, possibly on the day on which the incident had occurred, and told him that "there had been a problem about the customer yelling at him". 7. Following the meeting on 29 March 2016, Ms Hannah advised Mr Hammond that it had been decided, in consultation with the company's directors, to terminate his contract. This was later confirmed in writing by Ms Hannah in a letter dated 30 March 2016 which contained the following: I note that: (i) You were in receipt of two (2) Final Warning letters, the most recent of which was an Absolute Final Warning issued on 26 February 2016; (ii) The incident in question arose from a verbal exchange between you and a customer making a formal complaint to us about your behaviour; (iii) The purpose of the Show Cause meeting on 29 March 2016 was to give you the opportunity to convince us that your contract should not be terminated; (iv) Your explanation, as contained in your email of 22 March 2016 and your verbal comments yesterday were quite inadequate. It did not explain why a customer of our company would feel sufficiently threatened and offended by your behaviour so as to make a complaint on her own initiative if that complaint was (as you claimed) without justification. We listened to what you said, we again read your email, and we gave the matter detailed consideration for almost an hour after the meeting adjourned. We came to the conclusion that your explanation was unsatisfactory and your contract had to be terminated by reason of your conduct and in the light of the Absolute Final Warning issued to you on 26 February 2016. Case for Mr Hammond 1. Mr Hammond maintained his denial that he yelled at Ms Naidu on 4 March 2016. 2. He also disputed the history of prior disciplinary matters involving him which was relied upon by Direct. In particular, Mr Hammond claimed that the 'Absolute Final Warning' issued to him on 26 February 2016 followed "a conversation that I had with Workcover in relation to the death of a contract driver…". It was Mr Hammond's view that the deceased driver had been working excessive hours. He claimed that the delegates were concerned about fatigue management which had been an ongoing problem at Direct since 2012. He denied that the telephone conversation he had with Ms Hannah on the evening of the fatality was "outrageous". 3. Mr Hammond also rejected each of the accusations which gave rise to each of the other disciplinary matters set out at paragraph 6 above. He believed that he had been targeted because of his activity as a "vocal and dedicated delegate". 4. Mr Hammond stated: As Union Delegate at Direct Couriers, I have had a number of disputes with management about various issues. I believe that my advocacy on behalf of other drivers has angered the company. 1. Fatigue management was highlighted as one of the issues which had been pursued with the company by Mr Hammond, as was an issue of alleged underpayment of Direct's contract drivers. 2. Ultimately, it was submitted on behalf of Mr Hammond that the Commission should consider that he was, in fact, terminated as a result of his activism as the senior union delegate at his worksite. The allegations arising from the incident of 4 March 2016, even if they could be substantiated, did not justify termination. 3. Mr Hammond claimed that, since the termination of his contract with Direct, he has been unable to obtain work. The financial impact upon him of the termination has been severe. He has cashed in his superannuation and has borrowed money from family and friends. He is being financially supported by his partner and has three mortgages to service. Case for Direct 1. Direct relied upon Mr Hammond's poor disciplinary record in support of its decision to terminate his contract. 2. In particular, Direct relied upon Mr Hammond having aggressively accused the company, and Ms Hannah personally, of having caused the death of one of Direct's contract drivers by forcing him to drive excessive hours. It was subsequently established that the accident was the result of a heart attack caused by the driver's congenital heart condition. 3. Mr Hammond made the allegation to SafeWork NSW that the company forced drivers to work while fatigued. SafeWork NSW found no evidence of excessive hours. Mr Hammond did not provide to SafeWork NSW, or to the company, any material to support his allegations that Direct and Ms Hannah caused the driver's death. 4. Direct gave serious consideration to terminating Mr Hammond's contract at that point but, having regard to his length of service, determined to issue him with an 'Absolute Final Warning'. 5. In relation to the incident of 4 March 2016, Direct noted that, initially, Mr Hammond denied that anything of note had occurred. He later claimed that he had been the victim of abuse and had notified his union organiser immediately after the incident. 6. Further, in relation to this incident, Direct submitted as follows: Mr Hammond's denial of having abused the customer would not be accepted. The Customer had no reason to invent a complaint. Mr Hammond's responses were inconsistent. The fact that he called his union immediately after the incident (that is, the incident which he said did not occur) is particularly telling. The Commission would be comfortably satisfied that Mr Hammond had in fact abused the customer as alleged. 1. In conclusion, it was submitted that, having regard to his "deplorable record", the Commission "would be comfortably satisfied that Mr Hammond's dismissal was not harsh, unjust or unreasonable. On that basis the application should be refused". Determination of the application 1. Section 314 of the Act is in the following terms: 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. 1. The legislation is silent on the matters which the Commission is to take into account when considering an application for a contract determination with respect to the reinstatement of a contract of carriage that has terminated. However, at least since the judgement of Peterson J in Cherry v Allied Express Transport (1997) 73 IR 305, it has generally been accepted that the power to reinstate a contract of carriage "is to be applied, at least if not solely, in circumstances where there has been an 'unfair' termination of a contract of carriage" (at 309). 2. The determination of what is an 'unfair' termination of a contract of carriage may be informed by considerations that commonly arise in relation to a claim that a dismissal was harsh, unreasonable or unjust in the context of the employment relationship. Both parties structured their submissions on this basis which, I accept, is the correct approach. Incident of 4 March 2016 1. The termination of Mr Hammond's contract followed the incident of 4 March 2016 which occurred at the premises of HP, a client of Direct, and which involved Ms Naidu, an employee of ISS. Apart from Mr Hammond's version of events, the only other direct evidence of what occurred during this incident is contained in the email from Ms Naidu set out at paragraph 18 above. 2. Taken at its highest, the allegation is that, following an exchange between Ms Naidu and Mr Hammond about a large red trolley, Mr Hammond "became very upset and raised his voice" at Ms Naidu; he "very loudly explained" what he had done with the trolley and why; and, from Ms Naidu's observation, he seemed "agitated, frustrated and his body language changed to show frustration". It is notable that terms such as "angry", "aggressive behaviour" and "feel sufficiently threatened and offended by your behaviour", which appeared in the 'Show Cause' letter and the letter of termination, do not appear in Ms Naidu's email. 3. Ms Naidu declined to be interviewed by Ms Hannah and was not called as a witness in the proceedings. This has deprived Mr Hammond of the opportunity to test Ms Naidu's version of events which leaves the Commission in the position that the only direct evidence of what occurred is that given by Mr Hammond. I do not regard the fact that Mr Hammond contacted the TWU shortly after the incident as necessarily adding weight to Ms Naidu's version of events, or undermining the version given in sworn evidence by Mr Hammond. 4. Direct is entitled to expect a certain standard of behaviour from its contract drivers when they are on the premises of one of Direct's clients such as HP, and when dealing with the employees or agents of that client who are working at that site. Further, there is, no doubt, a degree of understandable sensitivity around a service provider, such as Direct, pursuing employees or agents of a client to become involved in a disciplinary process in relation to one of its contract drivers, or to give evidence in proceedings in this Commission. Such is the nature of commercial arrangements in competitive industries, such as the courier industry. 5. Against this consideration, however, is the right of a contract driver, such as Mr Hammond, to be afforded procedural fairness when confronted with an allegation of misconduct which could lead to the termination of his contract, as occurred in this case, and which allegation the contract driver vehemently denies. 6. Taking Ms Naidu's allegations at their highest, I am of the opinion that Mr Hammond's conduct, as described by her, is not of sufficient seriousness to warrant the termination of Mr Hammond's contract. I have formed this opinion despite Mr Hammond's poor record of disciplinary issues and previous warnings. 7. Had the incident involving Ms Naidu not occurred, Mr Hammond's contract would not have been terminated when it was. On Ms Naidu's version of events, the altercation between herself and Mr Hammond appears to have been relatively minor. On Mr Hammond's version it was either a "non event" or a situation where Ms Naidu had yelled at him or, in Mr Hammond's mind, both. Contrary to the submissions of Direct, I don't regard Mr Hammond's different descriptions of the incident as necessarily inconsistent or contradictory. 8. The inability of Mr Hammond to test Ms Naidu's version of the incident has deprived him of the opportunity of persuading Direct and this Commission that what actually occurred was closer to his version of events than that of Ms Naidu. 9. These considerations have led me to the conclusion that the termination of Mr Hammond's contract of carriage was, in all the circumstances, unfair. Remedy 1. Mr Hammond seeks reinstatement of his contract. Given his past poor disciplinary record, I consider that it would be impracticable to make a determination for reinstatement. Mr Hammond has, by his own conduct, disqualified himself from the benefit of the Commission's discretion to place him back into the workforce at Direct. 2. The incident in which he accused Direct and Ms Hannah of causing the death of a contract driver was, in my opinion, sufficient justification, without more, for the termination of Mr Hammond's contract. His refusal to apologise for this deplorable behaviour only compounded his misconduct. Added to this is Mr Hammond's complaint to SafeWork NSW about contract drivers being required to work excessive hours, which was found, upon investigation, to be without any foundation. 3. I reject absolutely the proposition contended for by the TWU on behalf of Mr Hammond to the effect that he was acting in the capacity of the senior delegate at Direct and that this status, in some way, clothed him with immunity from the consequences of his own irresponsible behaviour. 4. Union delegates perform an important role in the workplace representing the legitimate interests of workers. It is a role that carries with it an obligation to act responsibly. It is not a licence to pursue, with impunity, personal vendettas against management or to otherwise act irresponsibly. 5. I have determined that the termination of Mr Hammond's contract was unfair. However, I have also determined that, by virtue of his past conduct, he has disentitled himself to the remedy of reinstatement. 6. Taking all of the circumstances of this case into account, I determine that the appropriate remedy in this case is an order that Direct pay, as compensation to Mr Hammond, an amount equivalent to one month's remuneration under the contract of carriage between Mr Hammond and Direct, which existed prior to its termination. 7. The parties are directed to confer on an amount to give effect to this determination and proposed order. If no agreement is reached, either party has leave to apply to have the matter relisted for argument on the quantum of one month's remuneration. 8. In the event that agreement is reached, I direct the parties to jointly file in the registry a form of order which will give effect to this determination. Such order will be made in chambers unless either party sees the need to apply to have the matter relisted for the purpose of speaking to the terms of the proposed order. JOHN MURPHY Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2017