Barry Neill Cordwell v Interstate Drivers Services Pty Limited

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 421 of 1994
B E T W E E N :
BARRY NEILL CORDWELL & ANOR
Applicant
AND
INTERSTATE DRIVER SERVICES PTY LIMITED
Respondent
Before:       Judicial Registrar Millane
Place:         Melbourne
Date:          23 January 1995
REASONS FOR JUDGMENT
Barry Neill Cordwell (the Applicant) and the Transport Workers Union of Australia seek orders from this court pursuant to Section 170 EA of the Industrial Relations Act 1988 (the Act) against the Applicant’s former employer, Interstate Driver Services Pty Limited. It is alleged that on 6 May, 1994 the Respondent unlawfully terminated the Applicant’s employment as an interstate driver. The Applicant contends there were substantive and procedural breaches under the Act. Apart from there being no valid reason for the termination of his employment connected with his capacity or conduct or based on the operational requirements of the Respondent’s business (Section 170 DE(1)) the reason or one of the reasons for the termination of the Applicant’s employment was “based on the Applicant’s union activities in instigating a Driver’s Representative Committee and being a member of the newly created Enterprise Bargaining Committee”. This reason it is said by the Applicant breached Section 170 DF(1)(b) of the Act. Although it was not argued it may also be said that if such a reason existed at the time of termination of the Applicant’s employment it may also have breached Section 170 DF(1)(d) of the Act. As to procedural matters it was contended by the Applicant that, to the extent that the Respondent relied on the Applicant’s capacity or conduct as a reason or reasons for termination of his employment, there was a breach of Section 170 DC of the Act inasmuch as the Applicant was not given an opportunity to defend himself against the allegations made by the Respondent in its evidence. Finally the Applicant argued that the termination was harsh, unjust or unreasonable having regard to all the circumstances (Section 170 DE(2)).
The Respondent disputes liability as alleged by the Applicant and argues that there was a valid reason for terminating the Applicant’s employment; namely, the Applicant’s “...course of conduct which, seen as a whole, constituted misconduct and showed an intention by the Applicant not to abide by the policies of his Employer and not to be bound by the Employment Contract”.
During the 3 day hearing the following witnesses were called:-
(a)     By the Applicant -
(i)     The Applicant
(ii)     Cheryl Veronica Sprunt - the Respondent’s former office               manager
(iii)    Graeme Thomas Neil Jenkins - a local driver formerly                    employed by the Respondent
(b)     By the Respondent -
(i)     Benny Carrafa - a transport operator
(ii)     Brendan Jarrard Marcon - an interstate driver employed by           the Respondent
(iii)    Mark Edward Healey - an interstate driver employed by the           Respondent
(iv)    Grant Raymond Borg - an office clerk employed by the   Respondent
(v)     Gregory Wayne Strudwick - a driver/instructor employed by                   the Respondent
(vi)    Daniel Raymond Marks - the Respondent’s operations   manager
(vii)   Frederick Borg -the “owner” of the Respondent’s business.

Background
The Applicant has been a driver for some 13 years with seven to eight years working with long haul companies. In April 1993 he moved to Shepparton “for personal and romantic reasons”, and obtained employment with the Respondent as a driver. Prior to being engaged as a driver he spent one day with the company’s instructor, Gregory Strudwick (Strudwick), undergoing a driver’s test and instruction. He passed the test and was employed by the Respondent. However, there is a dispute as to whether Strudwick on the occasion of the test drive instructed the Applicant that it was company policy to load bulker bags with load binders securing the load in addition to securing the load with tarpaulins referred to as the “general tarp” and the “cap tarp”.
There was a recognised hierarchy in the assignment and allocation of trucks to interstate drivers. A new driver started with the lower ranking trucks in the fleet and worked his way up. There was some disagreement whether the Kenworth 2600A referred to as an “Anteater” was the top of the vehicle range; though it was accepted that this class of truck was one of the better trucks, to the use of which each new driver aspired.
By August 1994 the Applicant had been allocated an Anteater truck. It would be fair to say that both parties viewed this as an indication of the Applicant’s ability and something of a rapid rise in the eyes of the Respondent. Indeed, Mark Edward Healey (Healey), a fellow driver and witness called by the Respondent spoke of some resentment on the part of the other drivers because the Applicant’s promotion to the Anteater was seen as “queue jumping”.
All was well until September, 1993. Thereafter the Respondent alleges a change in the Applicant’s attitude and a demonstrable lack of professionalism on the Applicant’s part. This was a course of conduct comprising a series of incidents from September, 1993 to 5 May, 1994 culminating in the termination of the Applicant’s employment by the self proclaimed owner of the business, Frederick Borg (Borg), on 6 May, 1994.
The termination of the Applicant’s employment
Each party filed and served Contentions of Fact and Law. Much was said at hearing particularly regarding the contentions filed by the Respondent (the Respondent’s contentions).
The event precipitating the termination of employment took place on 5 May, 1994 at Carlton and United Breweries’ (CUB), weighbridge at Clyde in New South Wales. The Applicant’s recollection of this event was that he used this weighbridge on one previous occasion prior to 5 May, 1994. On the lastmentioned date he arrived at CUB’s warehouse, unloaded his trailer and proceeded to leave the premises. To do this it was necessary to drive around the warehouse building and, because he was driving a prime mover, keep the vehicle as far to the right as possible to make what he describes as “a fairly harsh left hand turn onto the weighbridge”. To perform this manoeuvre the Applicant was required to approach the weighbridge in first gear at a speed he believed was “no more than walking pace”. The Applicant was facing a green light when he made his first unsuccessful attempt to enter the weighbridge. The trailer swung to the left, he “got a little bit too close to the right hand side and subsequently speared a driver’s side tyre on the prime mover”. When this happened he reversed the prime mover then successfully moved on to the weighbridge alighted from the vehicle, had a short discussion with the CUB guard at the gate house, obtained from CUB office staff what was described as the paper work and departed. The Applicant changed the damaged tyre somewhere between the weighbridge and Sydney and completed his journey to Sydney where he obtained a return load, delivered by him to Shepparton on 6 May, 1994 at approximately 5 am. The Applicant was not cross examined as to when or where he stopped to change the damaged tyre or as to any safety issue in driving the vehicle for any appreciable distance with a damaged tyre.

The Applicant alleges that he went home to bed. At approximately 10.00 am he was awakened by a telephone call from Borg. He was told by Borg that Borg had received a complaint from CUB and the Applicant’s services were no longer required. He was offered one week’s work on Borg’s farm, presumably in lieu of one week’s compensation, and he was told to collect his possessions from his truck on that day. The Applicant had a medical appointed for “a bit of surgery” and asked to collect his possessions on the next day. This request was denied. The denial of this request meant that the Applicant was only able to collect some items from the truck and when he returned one week later the rest of the personal fittings to the truck had disappeared.

The Applicant declined Borg’s rather curious offer of farm work on Borg’s farm for one week. In breach of Section 170 DB(1)(a) the Applicant was not paid the minimum compensation payable instead of notice for this one week period.
Paragraphs 15, 16 and 21 of the Respondent’s contentions set out the Respondent’s allegations concerning the weighbridge incident as follows:-
15.In May, 1994 the employee drove the respondent’s vehicle through a red light on a customer’s weighbridge at Clyde and in so doing cut off a tray truck and damaged a tyre on the company vehicle. He did not stop the truck.
16.With respect to the incident referred to in Clause 15 herein, a complaint was received by one Fred Borg of the respondent from the customer on 5 May, 1994. This conduct seriously jeopardised the respondent’s business relations with the said customer.
21.Following the “red light incident” as referred to above herein and following a complaint being received on 5 May, 1994 as referred to above herein, Fred Borg, Grant Borg and Benny Carrafa of the respondent spoke to the employee. Fred Borg of the respondent advised the Applicant that in view of all the incidents referred to above herein that is the employee’s conduct, attitude to work and complaints, received that same was detrimental to the interests of the respondent. Further the employee was advised that he had been given a number of warnings and because there had been no improvement in the employee’s conduct the respondent had no option but to dismiss him.

Although, Grant Borg, Borg’s son and office clerk employed by the Respondent and Benny Carrafa (Carrafa), the owner of an Interstate Trucking business also operating from the Respondent’s premises, were allegedly present when Borg made the final telephone call to the Applicant, it was not contended at hearing that they were participants in the exchange between Borg and the Applicant culminating in the termination of the Applicant’s employment. At hearing, neither Grant Borg nor Carrafa gave evidence corroborating Borg’s evidence of the exchange or the matters concerning their role in the termination referred to in paragraph 21 of the Respondent’s contentions.
Healey was called by the Respondent as a witness to the weighbridge incident. Healey alleged he was in a vehicle behind the Applicant’s vehicle. He recalled there was a tray truck on the weighbridge as both vehicles approached the weighbridge. It was alleged by Healey that the Applicant attempted to drive on to the weighbridge after the tray truck left the bridge whilst a red light was operating to stop vehicles from entering the weighbridge. Healey noted that a tyre was blown by the impact and saw the Applicant drive onto the weighbridge, stop “...and he got out of the truck and he was all smiling and laughing and the bloke in the weighbridge at the gate house said something to him whatever - I don’t know what conversation went on there and he got his paper work done, handed it back to him and then got in the truck and just drove off”.
Healey did not support the Respondent’s allegation that there was a manoeuvre on the part of the Applicant’s vehicle that could be described as “cutting off a tray truck” or that the Applicant had failed to stop his truck. There was no damage caused to the weighbridge nor was it suggested that the CUB staff remonstrated with the Applicant directly after the incident. In response to a question from the court Healey claimed that, after the incident, he reported his observations to Carrafa at the Respondent’s depot in Shepparton. In further cross examination Healey variously described the time lapse between the incident and his CB radio call to Shepparton as being two minutes or five minutes. Subsequently he claimed to have first attempted to contact the Applicant; although this matter was never explored with the Applicant in the Respondent’s cross examination of the Applicant. The reason given for contacting the employer was that Healey was concerned about the Applicant’s unprofessional manner and his action in leaving without changing the damaged tyre.
Carrafa gave his evidence before Healey. Carrafa did not mention any report received from Healey or, if he received such a report, to whom he transmitted the contents of the report received and what enquiries were made as a result of that report. As can be seen from the Respondent’s contentions up until hearing the Respondent at all times maintained Borg had received a complaint directly from its customer concerning this incident.
Somewhat surprisingly, the Respondent chose to call it’s principal witness, Borg, at the end of the proceeding. This meant that Borg had the opportunity to listen to approximately three days of oral evidence before giving his evidence. Borg was the person who terminated the Applicant’s employment, he was also the person who allegedly gave the Applicant a number of warnings prior to the termination, and he was the person who the Applicant alleged harboured anti-union sentiments, with a particular antipathy towards the Applicant because the Applicant was instrumental in introducing a union presence to the depot from February, 1994 onwards. In these circumstances the Respondent’s unorthodox election to call evidence from Borg at the end of its case must affect the weight to be attributed to Borg’s evidence.
Borg’s explanation of the weighbridge incident was as follows:-
“Well again, as was stated, Mr Healey rang Mr Carrafa and I - and I rang my Sydney depot to verify that that event had taken place. I then rang the Clyde weighbridge myself personally so at - three points of information I thought well that all three people can’t be wrong. I rang Mr Cordwell the following morning. I said “I have spoken to you on several occasions”. I said, “you leave me no alternative but to terminate your services here on a - on a safety issue”. And he said, “And what’s that?” And I said, “Well you drove a red light and blew a tyre on the weighbridge that you didn’t change until you got back to the depot”. And he said, “Very interesting”. He said “Very interesting reasons. So I’ll have to think about that”. And that was the situation.”

I am not satisfied on this evidence that there was a customer complaint arising out of the weighbridge incident or any serious jeopardy to the Respondent’s business as a result of this incident. Further the variance between the evidence of the eye witness, Healey, Borg’s evidence and the Respondent’s contentions indicate that there was no detailed investigation undertaken and no opportunity given to the Applicant to provide his own explanation of the incident before Borg summarily terminated the Applicant’s employment. Until the hearing there was no apparent dispute over when the Applicant had changed the damaged tyre or whether the incident was a safety issue rather than a customer issue as described in the Respondent’s contentions. The incident took place in New South Wales on 5 May, 1994, if safety was the main concern it is remarkable that the employer, having been appraised of the incident within two to five minutes of it occurring, made no attempt to contact the Applicant directly or at the Sydney depot where he reloaded the vehicle before he drove to Shepparton. The first and only contact with the Applicant came at about 10.00 am on 6 May, 1994 and that was to terminate the Applicant’s employment without any meaningful enquiry or even to ask the Applicant when and where he stopped to change the tyre.
It was put to Healey in cross examination that his behaviour in “dobbing in” a fellow driver was motivated by his dislike for the Applicant who, through his driver representative activities from February, 1994, had brought change to the depot and introduced a union presence not otherwise known at the depot.
It is difficult to explain Healey’s behaviour other than by reference to some personal dislike of the Applicant with whom he had had very little direct contact as a driver. I do not accept that Healey made any attempt to contact the Applicant after he saw the incident. His eagerness to report to Shepparton within two to five minutes of the incident occurring suggests otherwise. Healey denied he was “anti-union” however, he agreed that he was against change in the job he was happy with and, in response to a suggestion that there was a lot of “...flak (sic) flying around the yard about this committee”, he said “...I was probably saying half of it; probably I was the man who was starting it all. Regards flack from drivers against the union, yes”. Healey understood there would be repercussions for his fellow driver in his employment as a result of Healey’s report. Taking all these matters into account I find that it is more probable than not that Healey was motivated by his antipathy towards the Applicant because the Applicant was instrumental and active in introducing union endorsed change in the workplace.
Unionism at the Respondent’s depot
One of the Respondent’s major clients is the company, Hoechst. Some years ago during a dispute between Hoechst and the union the Respondent supplied drivers who crossed the picket line. Prior to that dispute the Respondent’s workplace was not unionised. The Respondent’s involvement in the Hoechst dispute led to bans. In order to continue deliveries to certain clients it was necessary for the Respondent’s drivers to join the union. In effect the depot became a closed workshop. Whilst the Respondent and all the drivers complied with this requirement such compliance could not be said to be indicative of a desire to have a union presence at the depot. Indeed, until the enterprise bargaining issue emerged at a meeting of drivers to elect a representative committee as well as union delegates in February, 1994 there was no invited union presence at the depot. The union representatives were invited by the driver’s organising the meeting. They attended and advised the committee and drivers on negotiating an enterprise bargaining agreement with the Respondent as well as giving them advice on the driver’s Award entitlements.
As at February, 1994 the Respondent’s drivers, although they were covered by the Transport Workers Long Distance Drivers (Award) 1993 (exhibit A4), were paid at below award rates. There was a desire to enter into negotiations with the Respondent on enterprise bargaining. A meeting of the drivers was convened by the Applicant and another driver for 12 February, 1994 to elect the committee. That meeting was attended by the union representatives, some drivers employed by Carrafa and up to half of the seventy to eighty drivers employed by the Respondent. The driver’s representative committee (the committee) was elected and comprised the Applicant, Graeme Jenkins (Jenkins), Strudwick, Brendan Marcon (Marcon), Mark Powlowski (Powlowski) and John Kellow. Powlowski and Jenkins were also elected as union delegates for the local and interstate drivers. The Applicant opened and spoke to the meeting from prepared notes (exhibit A2). There were no representatives from management in attendance at that meeting. The union representative addressed the meeting on the terms of the award and the meaning of enterprise bargaining.
The first meeting of the newly formed committee took place on Saturday 19 February, 1994 at the Applicant’s home. At that meeting Strudwick resigned for “personal reasons”, although it was suggested to him when giving his evidence that his resignation was caused by the Respondent applying pressure to his pregnant wife, who was employed in the Respondent’s office. This was denied by Strudwick who blamed his wife’s anxiety about his committee membership on the hormonal changes she was experiencing in pregnancy. If nothing else this was certainly a novel explanation for Strudwick’s sudden and early resignation from the newly formed committee. Otherwise the explanation of his behaviour is not one this Court should give any credence to. As will be seen from the evidence of Cheryl Veronica Sprunt (Sprunt) the Respondent’s former office manager, there was clearly some management pressure on the office staff whose spouses were drivers believed to be connected with the union presence at the depot.

After Strudwick left the meeting proceeded to review the relevant award provisions. It was determined amongst other things that the drivers were being underpaid and were not being given rostered days off.

The Respondent did not deny that it was paying under award wages. It had however taken steps in 1993 to contact its clients, canvassing transport freight rate increases with the intention of giving its drivers increased hourly rates of pay. The Respondent’s principal concern was that it could not afford to pay the award rates. The process initiated by the Respondent was still under way when the committee commenced its activities. It would be fair to say that whilst Borg conceded that, if his customers were willing to accept increased costs, he was prepared to increase the hourly rates paid to the drivers but otherwise did not believe it was economically viable for his business to accede to union demands of payment in accordance with the Award.
As with so many business people who develop their business over many years and subsequently incorporate the business, Borg did not at any time draw a distinction between his activities and the activities of the Respondent corporate entity. As far as he was concerned, it was his business and he ran it as he saw fit. This is not to say that he was uncaring or ungenerous towards the Respondent’s employees in various ways. However, he was “the boss”, he controlled the business and he did not welcome outside interference from the union or being told what to do and how to do it by his employees. He was in favour of “sensible” unionism, whatever that was supposed to mean, and opposed to compulsory unionism “...because that to me is part of communism or at the very least fabianism”. From that statement I conclude that Borg was opposed to the closed shop environment that existed following the Respondent’s involvement in the Hoechst dispute. The Respondent’s Solicitor, Mr Gleeson, attempted to characterise Borg as being straight forward and a man who “shoots from the hip”. Other idioms also spring to mind. It was apparent from the evidence given by the witnesses called by each party that Borg is not a man easily bettered in a dispute. For instance, a mass meeting of drivers, management, the committee (other than the Applicant whose employment had been terminated on 6 May, 1994) and union representatives held on 22 May, 1994 demonstrates the power Borg wielded. Jenkins was a committee member and union delegate for the local drivers. He had, with the committee’s blessing, prepared some written material on the way in which the Respondent could better operate in order to grant pay rises to the drivers. The detail of this material was not clear to the court however it was not disputed by either side that the effect of the material was to try to demonstrate to Borg how he could manage the Respondent company to grant pay increases he felt the Respondent was otherwise unable to afford. Shortly after handing this material to Borg and attending the mass meeting Jenkins recorded what occurred in the following words:-
Meeting was a total fiasco. Borg taking the floor in a disgraceful personal attack on myself as union delegate, committee member. Referring to me as an idiot, a cock head, a dick head and a liar. I was totally amazed and shocked by this attack as I feel Fred had no cause to do what he did. I feel totally demoralised. My self esteem also zero. I will have to control my anger to avoid deepening the problem.

When asked by the Applicant’s Counsel, Neville Kenyon, what Borg’s attitude was to the committee’s attempts to obtain an enterprise bargaining agreement. Jenkins replied “He wasn’t really interested in listening to whatever we compiled with union help. It was always back to what Fred was prepared to do”. As a result of the personal attack on him Jenkins took sick leave and then resigned.
The Respondent did not dispute that the incident occurred with Jenkins (or for that matter at the same meeting Borg’s verbal attack on another committee member, Gary Rodwell); rather the Respondent attempted to explain through its witnesses such as Marcon and Healey that Jenkins gave as good as he received. More importantly, Marcon who had warned Jenkins not to approach Borg in this way felt that Jenkins deserved the abuse he received because he had tried to tell Borg how to run the company. In so doing he had, according to Marcon, misapprehended the way in which Borg should be handled in negotiations. I conclude from this reasoning only diplomats should try to negotiate enterprise bargaining agreements with Borg. If Borg perceived any attempt to tell him how to run his company, the drivers and/or committee members could expect a fight.
In the period during which the Applicant was employed by the Respondent there were very few direct encounters between the Applicant and Borg. In fact, the Applicant first conversed with Borg in about November, 1993 when he asked to borrow four of the Respondent’s prime movers for the Applicant’s wedding in February, 1994. This discussion was a short one and Borg agreed to the loan with the only provisos being that there be no drinking and driving and the prime movers be looked after.
By February, 1994 it was rumoured that the Applicant would not be given the four prime movers for his wedding on 26 February, 1994. On 22 February, 1994 he went to the Respondent’s offices to see Borg to ensure the prime movers were still available. According to both parties the meeting was up to 45 minutes in duration. Over this period the Applicant recalled Borg focused on enterprise bargaining and complained about unions being -
no good and they’d done him no favours and they’re not going to do me any favours, and enterprise bargaining is just another way of us getting more money out of him, and you know, he’s going broke and, he can’t afford this, and he can’t afford that. That was the general gist of his conversations.

At the time of the meeting Sprunt the office manager, was in the adjoining office. She had some interest in the conversation between the Applicant and Borg because her husband was also employed as a driver. Sprunt alleged her husband had been accused of organising the meetings with the union. Sprunt’s interest was excited when she heard Borg accuse the Applicant of organising these meeting presumably because Sprunt believed this would exonerate her husband from the same allegation. Sprunt also recalled hearing the Applicant ask if he could still use the prime movers for his wedding.
In his evidence in chief Borg alleged that at this meeting he canvassed a number of performance and conduct related issues with the Applicant including alleged discussions by the Applicant with Hoechst employees about the Respondent, the Applicant’s method of loading bulker bags, road grime on a load of bottles transported by the Applicant, alleged comments by the Applicant on the CB radio, and the Applicant’s securing of a steel bucket load with ropes rather than a chain.
According to Borg:-
I just expressed my concern about his rubbishing my name and saying that I am stalling. I don’t want to cooperate in their - in their enterprise bargaining etcetera. And I - I tried to point out to Barry that his attitude needed to be changed dramatically; he was a professional driver, and it was time he started to behave as such; that he was entering a fairly crucial part of his life in taking responsibility of a wife on; that if his behaviour continued he would leave me no option but to dismiss his services - his and anybody’s else that was going to behave in that same manner.

Following this exchange Borg alleges the Applicant agreed his (the Applicant’s) performance needed to improve and he would endeavour to do this.
Given the length of the meeting on 22 February, 1994 between these two men and the Applicant’s desire to as he put it discuss rumours about him where “...there was no specific allegation, it just seemed that every time I was supposed to be out on the road I was doing something wrong...”, I am satisfied that, apart from the discussion about the use of the prime movers, enterprise bargaining and unionism, Borg and the Applicant also discussed some although it is not clear what other matters relating to the Applicant’s performance. Neither the Applicant nor Sprunt recalled any specific warning clearly stating that the Applicant’s employment was in jeopardy. I conclude from this that it is unlikely that his employment was specifically threatened.
The prime movers were loaned to the Applicant and were used at his wedding without incident. The Respondent now complains that the prime movers were lent in the belief that the wedding was to take place at Shepparton. It was held at Cobram some sixty kilometres or so from Shepparton and because of this it is contended by the Respondent that the use of the prime movers was not authorised (see paragraph 14 of the Respondent’s contentions). Borg did not ask where the wedding was to take place nor did he place qualifications on the use of the prime movers other than those already mentioned. If nothing else the Respondent received some free publicity from the local press as a result of the use of the prime movers at the wedding. Further there was no evidence that prior to the termination the Respondent admonished the Applicant after learning that the prime movers were used at Cobram. Accordingly, I find there is no legal basis at all in the Respondent’s allegation at hearing. If anything the pursuit of this issue by the Respondent highlights the paucity of the Respondent’s case in other areas.
It is appropriate at this juncture to return again to Sprunt’s evidence. She stated that, following the meeting with the Applicant on 22 February, 1994 Borg called Daniel Marks (Marks) the operations manager into his office and instructed Marks to draw up a list of the names of the drivers who attended the meeting on 12 February, 1994. This was, according to Sprunt,“Because he wanted to get rid of them...and especially Barry Cordwell”.
The Respondent retains a computer record on each employee driver against whose name the company records information such as motor vehicle accidents, workcare claims and any other complaints. None of these documents were produced by the Respondent at hearing. Sprunt alleged she was asked to obtain a computer printout of this information for all employee drivers attending the February meeting. Sprunt responded to this request by printing out all information on each driver because she did not know who had attended the meeting. This information was then given to Borg.
After some 13 years of employment Sprunt left the Respondent in late February, 1994. She did so because she was unhappy with the Respondent’s treatment of her husband, whose work runs had been changed by the Respondent allegedly because of her husband’s involvement with the union “troubles” at the depot.
After leaving her employment Sprunt and Borg fell into further disagreement because he alleged she was ringing his office seeking information. Sprunt claims that Borg was instrumental in the early termination of her employment with another transport group and, although Borg agreed he spoke to her new employer about her, Borg denied saying anything to her detriment.
At hearing there was considerable animosity between Sprunt and Borg however it was not possible nor relevant to the case at hand to decide what occurred between Borg and Sprunt’s husband, Gregory Sprunt, the latter of whom did not attend to give evidence. I am unable to conclude on Sprunt’s evidence alone that Borg set out to terminate each and every driver who attended the meeting or, at the very least the committee members. If he had such a policy undoubtedly he would have exercised his considerable powers to implement that policy when and if it suited him to do so. That does not mean that Borg may not have singled out various people such as the Applicant and Jenkins for particular attention at least in part because of his conflict with them over the way in which enterprise bargaining was to be introduced to the depot and the need if any to involve union representatives in this process. Both these men asserted that following their involvement in committee activities they were relegated to what was colloquially referred to as the “pus jobs”. These were the less attractive runs more appropriate to junior drivers. The Respondent and its witnesses denied any policy of victimisation suggesting that all drivers from time to time were allocated the less favourable runs. The evidence on this matter was too general for me to conclude that such a policy operated to the Applicant’s detriment.
Between the committee meeting of 19 February, 1994 and the termination of the Applicant’s employment there was one further meeting between Borg and the committee as it then was. This meeting was designed to reassure Borg the committee wanted to work with him in negotiating enterprise bargaining at the depot. The need to reassure Borg in this way highlights the disquiet at the depot brought about by the existence of the committee. The meeting took place on Easter Saturday in early April, 1994 (the Easter meeting). Both prior to and at that meeting Borg expressed his opposition to the Applicant’s membership of the committee. Jenkins and Marcon were approached at different times before the meeting by Borg who expressed his objection to the Applicant’s presence on the committee. Both men informed Borg that the Applicant had been duly elected and would remain on the committee.
One of the Respondent’s Contentions (paragraph 19) is that the Applicant was “warned and spoken to in front of the union committee and the committee told the employee to lift his game”. Borg and the Applicant both attended the lastmentioned meeting and at that meeting Borg spent a considerable part of the time pursuing his objection to the Applicant’s presence on the committee.
During that meeting Borg and the Applicant again discussed a number of complaints Borg had about the Applicant. Borg believed the Applicant had been criticising and undermining the Respondent in the presence of the Respondent’s contractor Hoechst (paragraph 12 of the Respondent’s contentions). Whilst denying any criticism as such the Applicant agreed that he had discussions with the Hoechst employees about enterprise bargaining issues. Jenkins recalled that at the Easter meeting this lastmentioned complaint was canvassed as well as a complaint about the Applicant’s general appearance. Both Jenkins and Marcon as committee members recalled Borg and the Applicant “squaring off” over some of these issues and by the end of the meeting all of those present believed that there was some rapprochement between the two men.
Neither Jenkins, Marcon nor the Applicant accepted that the Applicant was warned at the Easter meeting by Borg. They denied that the Applicant was ever told by the committee to “lift his game”.
Borg explained his opposition to the Applicant’s membership of the committee on the following basis:-
Because I believed that he had nothing to offer my company and nothing to offer the industry in the manner in which he secured loads on and the examples that he was setting around my yard in terms of his dress conduct, his hair conduct, his no boots conduct, his black singlet conduct, his stubby shorts conduct, his unsecured loads, his attitude when people spoke to him was one of that - you know, nine times out of ten it resolved in a heated discussion for the very - in the very least. And I believe that enterprise bargaining as Mr Patten stated on so many occasions - it was a culture shock for all of us concerned. None of us really understood what it meant. I personally am a member of the National Transport Federation that took five years of arguing over the Interstate Driver’s Award. And yes, of course, everyone was reluctant and hesitant about enterprise bargaining and that was where the hesitations of that were brought in and I just didn’t feel that Mr Cordwell had anything whatsoever to contribute in terms of lifting productivity in my yard as an overall - as an overall driver aspect, when he in fact in my opinion wasn’t doing his job to my required standards anyway.

I am not satisfied that at this meeting despite the canvassing of performance related issues, Borg gave any specific warnings to the effect that the Applicant’s employment was at risk. Borg’s purpose if anything was to ensure that the Applicant was removed from the committee because, in Borg’s view, the Applicant had nothing to contribute to any discussions on productivity in the workplace. Borg was particularly offended by what he believed were the Applicant’s discussions with Hoechst employees about his company’s enterprise bargaining arrangements as well as, it seems, the Applicant’s attire. On this occasion the committee and the members approached before the meeting resisted Borg’s attempts to impose his will and have the Applicant removed from the committee. There were no further meetings or direct exchanges between the Applicant and Borg until the telephone conversation on 6 May, 1994 when Borg terminated the Applicant’s employment.
Performance and conduct issues relied upon by the Respondent
At hearing the Respondent referred to a number of incidents relied upon by it to show what the Respondent called a course of conduct constituting misconduct and showing an intention by the Applicant not to abide by the company policies and the contract of employment. Those issues were set out in the Respondent’s contentions. In its written submissions the Respondent sought to classify the performance issues in three ways.
The first referred to poor and potentially unsafe loading practices in relation to: -
(i)bulker bags - 19 November, 1993;
(ii)steel bucket load - February, 1994;
(iii)overloading penalty - April, 1994;

The second referred to a disregard for the Respondent’s property and for the Respondent’s authority namely: -
(i)the use of four prime movers in an unauthorised manner;

(ii)     “How long have you been the boss” and “I am afraid of no man” to Benny Carrafa over the grimy bottles incident; and
(iii)    a traffic incident whereby the Applicant initially agreed to              pay half the damage, and the red light incident involving the               weighbridge in which a tyre was damaged
The third referred to the Applicant’s unprofessional conduct reflecting poorly on the Respondent company and characterised by:-
(i)telling a driver of a rival company to “get that heap of shit             out of the road and let me through” or words to that effect;
(ii)the weighbridge incident at the premises of one of the   Respondent’s major customers;
(iii)accusing the Respondent of poor industrial relations   practices whilst at the premises of Hoechst, one of the   Respondent’s major clients; and
(iv)the grimy bottles incident.

The Clyde weighbridge incident and the use of the prime movers at the Applicant’s wedding on 26 February, 1994 have already been dealt with in this judgment.
The court was told that bulker bags are lined “hessian-type” bags holding approximately one tonne of produce such as flour. The Respondent alleged the Applicant transported a load of bulker bags on 19 November, 1993 and such load was not secured in accordance with the company’s policy requiring binders to be used to secure the load.
When the Applicant commenced his employment he received one day’s testing and instruction from Strudwick who subsequently gave evidence that it was his practice to tell all new drivers the abovementioned loading practice was company policy. The Applicant denied any instruction on this policy matter until the incident in November, 1993 following which time he accepted and adopted the company policy. The Applicant transported bulker bags after that date without any complaint he was breaching company policy. Healey, who gave evidence for the Respondent, also received instruction from Strudwick. He too denied being instructed by Strudwick to secure bulker bags in the manner the Respondent now alleges was company policy. Healey claimed to have learnt this method of securing bulker bags from his previous employer. The evidence of other witnesses also suggested that the practice of securing bulker bags with binders was not universally adopted by transport companies. I am satisfied that after the Applicant was instructed by Strudwick in November, 1993 to use binders he did so and there was no further cause for complaint on this subject. However, I am not satisfied that before this incident the Applicant received specific instructions on this alleged company policy. In the Respondent’s contentions (paragraph 5) it was also alleged that as a consequence of this bulker bag incident Grant Borg spoke to the employee and “warned the employee with respect to his conduct and also took photos of the appropriate loads and showed them to the employee”. The Applicant was not cross examined on these matters and Grant Borg failed to raise these allegations in his evidence or produce any relevant photographs.

In paragraph 11 of the Respondent’s Contentions it was alleged that in February, 1994 the Applicant “transported a load containing a steel bucket which should have been tied down with steel chains but had only been secured with ropes”. This incident appears to have occurred prior to the Easter committee meeting. The Applicant’s explanation of this incident is that he loaded a forklift truck with a disconnected mast and a set of grabs in Sydney. The grabs were steel strapped to a pallet and the pallet was put onto the deck of the Applicant’s truck. The pallet was broken prior to it being loaded on the truck. The position of the load on the truck precluded the Applicant from using a load binder and the Applicant believed that a chain would damage the load where the metal was thin. He also believed the load was secured by the strapping to the pallets. As an additional precaution he threw a rope over the top to stop the arms from sliding out if the strap broke. He drove this load to Shepparton and left it at the depot for a local driver to transport it to Melbourne. Subsequently, he was contacted by the Respondent and asked to transport this load to Melbourne because there was a shortage of local drivers to do this. As the Applicant was leaving the depot with the load Marks stopped him and queried why the Applicant had only thrown a rope over the grab. The Applicant explained what he had done to secure the load and was then asked by Marks to wait because Grant Borg was going to photograph the load. Grant Borg took some ten minutes to do this without offering an explanation as to why he was doing this. The Applicant was not instructed to secure the steel load in a different manner, however, he conceded that Marks had “mentioned” the use of the ropes. This rather oblique statement was not further clarified. He did however deny receiving any warning about the use of ropes to secure the load. I was surprised to learn the Applicant was not shown the photographs taken of this load until after the termination of his employment; nor was any complaint or warning directed to him specifically concerning this incident until after the termination of his employment.
On the evidence I am satisfied that Marks did at the very least mention the use of the ropes to the Applicant; whether or not he went on to instruct the Applicant to use chains or what is called a “dog and chain” to secure the load before it left for the journey to Melbourne is unclear. In cross examination Marks presented as an uncooperative, evasive and aggressive witness. Because of this behaviour I am unable to afford his evidence, the weight I might have otherwise given it. Nevertheless, the Applicant’s concession in cross examination that he had been spoken to by Marks about the ropes and further his statement that he gave an explanation to Marks as to why he had loaded the grabs without chains securing them does make it more likely than not that some instruction was given or indicated by Marks at the time, at least in passing. Even so, no evidence was offered by the Respondent to show that this method of securing the load was a company policy in which the Applicant had been trained and instructed prior to the incident. Strudwick’s evidence focussed solely on the instruction he allegedly gave for the loading and securing of bulker bags with binders. The assumption by the Respondent seemed to be that any professional driver would know that ropes are unreliable for securing steel objects. Whilst there may be some truth in that belief, it does not relieve the Respondent from an obligation to give proper training and instruction to its employees on matters of company policy and safety.
The steel bucket incident may demonstrate a want of performance on the part of the Applicant in that he should have taken steps to better secure the load when Marks queried the use of the ropes, however, what is more significant is the Respondent’s odd behaviour in dealing with the Applicant’s so called breach of company policy. Borg told the Court he was on the way to Melbourne to attend an appointment when he saw the load in the yard and instructed Grant Borg who had just arrived at work, to photograph the load. After giving this instruction to his son and despite his concern about the safety of the load and the interests of his client in having the load delivered intact, Borg left for his journey to Melbourne without giving any further instructions. Quite by coincidence Marks saw the load from his office window and spoke briefly to the Applicant, never returning to see whether any alleged instruction had been complied with. Marks gave no evidence on what if anything he did as operations manager subsequent to this incident when he discovered that the Applicant had not followed his alleged instruction.
Grant Borg did what he was told by his father to do and made no attempt to instruct the Applicant not to leave the yard without first securing the load with a dog and chain. Such was Grant Borg’s haste to fulfil his father’s instructions after taking a series of photographs (six of which were tendered in evidence as exhibit R1), Grant Borg drove straight into Shepparton and arranged for the photographs to be developed. These photographs were never shown to the Applicant nor referred to until after the termination of his employment in May, 1994. Grant Borg’s explanation for taking the photographs was illogical and unconvincing to say the least:-
Just for our records if anything like this ever comes up, you know, if we have a complaint from a customer, we have got proof and photos there of what the load was like and how it was transported.

Grant Borg denied that the taking of the photographs was to “set up”the Applicant. Marks explanation was even less convincing because he believed that the photographs were taken -“well if something ever happened from here, from Shepparton to Melbourne, which thank Christ - I didn’t know, I didn’t see Barry drive out without the chain on it”. The effect of Marks’ evidence was that the photographs were not taken to show the client that the goods were properly loaded for transport, rather they were taken to show the rest of the drivers how not to load steel buckets and this was to be done by placing the photographs on the Respondent’s notice board. There was no evidence that this educational exercise was ever undertaken by the Respondent in this or any other case.
This incident did not on the evidence give rise to any detailed enquiry, specific counselling or warning of the Applicant. Borg’s only instruction to his son was to photograph the load. It was an entirely fortuitous event that Marks made any comment at all to the Applicant about the ropes securing the load. The photographs could be of no assistance in deflecting customer’s criticism of the Respondent or any potential insurance claims had there been a complaint. On the evidence I am satisfied the only plausible inference to be drawn from the Respondent’s conduct in concentrating mainly on the taking of photographs of the load, rather than ensuring that it was secured in accordance with an alleged company policy, was that the Respondent sought to gather evidence against the Applicant. In other words, the Respondent’s behaviour is consistent with Borg’s desire to demonstrate to the other committee members that the Applicant was not a suitable member of the committee or a suitable person to negotiate enterprise bargaining at the Respondent’s depot.
An overloading penalty was allegedly incurred on 29 April, 1994. According to the Applicant there was a shortage of freight and he was required to pick up two loads. The Applicant claims that the paperwork he collected for both loads showed the loads to be within the correct weight limit. When he arrived at the weighbridge it was found that the load was two tonne overweight. On his return to Shepparton the Applicant informed Carrafa of this and was told Carrafa “would take care of it”. The Applicant, Strudwick, Sprunt and Marcon all gave evidence that the Respondent usually paid overload penalties particularly where a driver was not aware of the overload or if the driver had not loaded the vehicle. The Respondent produced no documentary evidence of the overload, the incurring of any penalty, the amount and payment of any penalty incurred or, evidence of any formal demand made to the Applicant to pay the penalty himself. I conclude from this that overload penalties were incurred by drivers from time to time and, in particular, where the driver was not responsible for the actual loading, it was the Respondent’s practice, and in the Respondent’s interest, to pay such penalties to keep the drivers and the trucks on the road. As in nearly all of the incidents complained of by the Respondent there was no evidence of any published policy or instruction given to the Applicant on incurring overload penalties prior to the April penalty being incurred, if in fact it was incurred. Moreover, the Respondent failed to investigate the incident or afford the Applicant the opportunity to explain what took place.
The Applicant gave evidence that on 10 February, 1994 Carrafa complained to him about road grime on a load of shrink wrapped bottles transported by the Applicant from Sydney to Shepparton. This load was left at the Respondent’s yard by the Applicant in the early hours of the morning, to be driven by a local driver to Melbourne. By paragraph 7 of the Respondent’s contentions it was alleged:-
In early March, 1994 the employer returned to the respondent’s premises and it was noticed that a load of bottles being carried by him were covered in road grime. It was observed that the employee had only covered the bottles with a “cap tarp” which only covers half the load. The bottles were being transported on behalf of one of the respondent’s principals (sic) contractors.

The respondents acting operations manager spoke to the employee about the state of the load of bottles referred to above herein. Further, the employee was warned.
The bottle incident referred to above herein significantly jeopardised the business relationship between the respondent and one of its principal contractors.

The Respondent’s contentions filed prior to the hearing did not refer to a dispute between Carrafa and the Applicant at the time of the dirty bottles incident. The Applicant agreed that two thirds of the load was covered with a cap tarp. The explanation given to the court was that he encountered road works and wet conditions during the journey to Shepparton. There may have been dirt on the load when he arrived at Shepparton, however he did not see this himself. It was common practice to cap tarp “loads such as this one rather than fully tarp the load” to protect it from road dirt. He was not instructed on this occasion to fully cover the load nor it seems was he instructed prior to the incident to adopt a different method of loading this sort of product. It was conceded by the Respondent’s witnesses that some loads depending on the customer requirements, were “cap tarped” or “fully tarped”. When the Applicant returned to the Respondent’s yard later on the same day as the delivery was made he was confronted by Carrafa who accused him of speeding through road works and told him he should have washed down the load after his arrival. The Applicant denied speeding through road works. No witness was called to substantiate this allegation or the allegation that there was road dirt on the load. The Applicant acknowledged that he would have washed down the load if he had seen that it was dirty. Further, Carrafa conceded that there was no complaint from the customer about the cleanliness of the load on this occasion.
The real issue, if any, between the parties arising from this incident was that the Applicant and Carrafa engaged in a heated argument after Carrafa berated the Applicant about the condition of the load. It is alleged that the Applicant amongst other things asked Carrafa “How long have you been boss, 5 minutes?” and told Carrafa that he “...was frightened of no man”. Marks intervened on hearing the exchange between Carrafa and the Applicant and, on the evidence, that was the end of the matter. The Respondent argues that Carrafa was authorised to give the Applicant instructions because when Marks was away from his job as operations manager Carrafa stood in for him. This was said to be generally understood by all drivers, even without the benefit of specific instruction to that effect.
Carrafa operates his own transport business from the same premises and uses the same offices as those used by the Respondent. Undoubtedly there is a close personal and working relationship between Carrafa and Borg. On the one hand Carrafa alleged he received payment from the Respondent for his part time work as operations manager and, on the other hand, Borg claimed that Carrafa was not on the company payroll, although it was well known Carrafa had authority to act in the Respondent’s interests. On the date of the incident Marks was present as operations manager. I am not satisfied that at any stage Carrafa was an employee of the Respondent despite the fact that the drivers deferred to him because of his obvious personal and working relationship with their employer. At the time Carrafa approached the Applicant to reprimand him over the alleged dirty condition of the bottles no proper enquiry had been conducted nor had the Applicant been given the opportunity to explain his position. Moreover, the Applicant perceived quite accurately that Carrafa was not an employee of the company and certainly not on that day even temporarily acting as operations manager. This being so, this incident cannot be relied upon by the Respondent to demonstrate a disregard for the Respondent’s authority.
The Respondent further relied upon two traffic accidents occurring in September and October, 1994 respectively and involving the Applicant in his Anteater. Not surprisingly for a transport business, other witnesses gave evidence that from time to time they, as drivers, had been involved in collisions whilst working for the Respondent. It was generally agreed that the Respondent’s policy was to pay for these accidents unless it was a serious accident caused by the driver. It was also agreed that a driver’s employment would not be terminated other than where there had been a serious accident caused by the driver. In some cases the driver was asked to contribute half the cost of the damage sustained where he was at fault. The Respondent called no direct or documentary evidence to prove the circumstances of either accident involving the Applicant. The September, 1993 accident involved a rear end collision, which the Applicant said occurred because of an insufficiency in the brakes of the prime mover. He previously complained to the Respondent’s maintenance staff about the brakes and this insufficiency had not been attended to. Some time later in October, 1993 the brakes were repaired in New South Wales (see exhibit A1) following further problems with them. The Respondent tendered in evidence (exhibit R2) a copy of a written agreement in which the Applicant agreed to pay half the cost of the first accident, together with a copy of the Applicant’s written notice resiling from that agreement. The Applicant explained this conduct by saying he did not believe that the accident was his fault and after talking to other drivers, he withdrew his agreement to pay half the cost of the damage. In attempting to rely on this issue as a valid reason for terminating the Applicant’s employment, the Respondent must discharge the burden of proving the substance of the claim. Inconclusive evidence was called by the Respondent to demonstrate that in either collision the Applicant was at fault and further that it had notified the Applicant of any policy of contribution to the cost of an accident prior to that accident occurring. In fact the Applicant was never on the evidence called, asked to contribute to the cost of the second accident. The Respondent seemed to assume that because a driver was involved in an accident this was evidence of the driver’s disregard for the Respondent’s property and a lack of professionalism. The Respondent did not pursue either of these incidents with the Applicant until after the termination of the Applicant’s employment. There was no evidence that the Applicant was reprimanded, counselled or specifically warned in September, October or on any date prior to the termination of his employment because of his role in either accident. It goes without saying that he was not afforded the opportunity to exculpate himself from any liability for either accident prior to the termination of his employment for reasons which the Respondent claimed included his accident record.
The Respondent now complains that it received a complaint from another transport company concerning comments by the Applicant on his CB radio to a driver of that other company. Neither the driver nor the other company was identified in the Respondent’s evidence. More importantly, at no stage did the Respondent particularise what it alleged was said to the other driver. It was the Applicant who, in an attempt to respond to this allegation focussed on a comment he made to another driver at one stage where he had said to that driver “get that heap of shit out of my way I am coming through”. This was a tongue in cheek comment made in casual conversation between truck drivers. The Applicant also noted that no specific allegation had been raised by Borg at the Easter committee meeting without him ever stating precisely what was said. Interestingly enough, the Respondent now relies on the Applicant’s explanation as evidence of the Applicant’s unprofessional conduct without calling any evidence to prove that it received a complaint from another transport company and the nature of the complaint received. The Applicant denies the further allegation that he was spoken to and warned by Carrafa, who failed to mention the incident in his evidence. Suffice to say that on the basis of this evidence I am not satisfied that an incident occurred which could be characterised as unprofessional conduct.
The last matter complained of by the Respondent is described in paragraph 12 of the Respondent’s contentions as follows:-
At all material times the respondent’s single biggest contractor was Hoechst. One Fred Borg of the respondent was advised by an employee of such company about the employee speaking to staff members of that company criticising the respondent and undermining the respondent.

In its submissions the Respondent goes further to suggest that this conduct amounted to the Applicant accusing the Respondent of poor industrial relations practices.
Whilst the Applicant agrees that as a committee member he discussed enterprise bargaining with employees of the Hoechst company he denies any attempt to criticise or undermine the Respondent. Given the generality of the allegation made it was impossible for the Applicant to properly respond to this complaint in a meaningful way. What is important is that no evidence was called from the Hoechst employee setting out the precise statement made, nor was the allegation particularised and put specifically to the Applicant prior to the termination of his employment to afford him the opportunity to respond. Accordingly, the Respondent has not substantiated the allegation made.
Findings
As in many of the cases now being heard under the amended Act, employers, in an effort to discharge the onus of proof of showing a valid reason for termination of an employee’s employment, tend to rake through all the performance related events occurring during the course of the employee’s employment. It is an attempt to justify what may be an ill considered termination of employment; one which shows very little regard to procedural fairness in the termination process.

In effect, in the case at hand, the Applicant was summarily dismissed with scant reason being advanced for such dismissal. The event described at the Clyde weighbridge, being the event giving rise to the termination of the Applicant’s employment was not as described in the Respondent’s contentions and at the end of the day amounted to little more than a punctured tyre changed by the Applicant at some stage between the weighbridge and the Sydney depot. The issue of safety only arose at hearing as something of an afterthought.
In his submission to the court the Applicant’s counsel raised a lengthy argument on whether evidence, not available at the time of the dismissal of the Applicant, is now admissible to justify a dismissal by ex post facto rationalisation. The Respondent’s submission did not advance this point any further; rather the Respondent, not surprisingly, cited the common law authorities supporting the proposition that such evidence may be resorted to at least in cases where the court has to determine whether the termination of employment was harsh, unjust or unreasonable.
In this particular case any argument based on the authorities dealing with the admissibility and probity of after acquired evidence in determining either the primary issue of there being a valid reason for termination or the secondary question; namely whether such termination was harsh, unjust or unreasonable, is misconceived. The evidence of each incident relied upon was known to and available to the Respondent at the time the incident occurred and before the date of termination. None of the matters of performance raised by the Respondent and put to the Applicant could in any sense be said to be after acquired information in that they were discovered subsequent to the termination of the employment and could not have been known to the Respondent prior to the date of termination.
In Savvidis v Privilege Clothing Pty Ltd (No. V1357/94 unreported 28 November, 1994) at page 24 of her decision Parkinson JR says:-
In my view it is a precondition to the termination of the employment that a valid reason connected with the employee’s capacity or conduct must already exist. It is implicit in that section that the valid reason must exist and be in the contemplation of the Respondent at the time of the termination.
Further it is inconsistent with the operation of Section 170 DC of the Act providing, as it does, that an employee be accorded an opportunity to respond to allegations against his or her conduct prior to the termination of employment, that allegations of facts discovered subsequent to the termination be able to be relied upon to justify the validity of the termination of the employment. These being allegations which were not put to the employer at the time of termination.

In this case it is not necessary for me to decide whether any after acquired information is admissible to determine whether or not there was a valid reason for terminating the Applicant’s employment. Parkinson JR’s observations in Savvidis’s case provide clear authority for the view that at termination the Act requires an employer to have a contemporaneous and valid reason in order to discharge the onus of proof imposed by Section 170 EDA(1)(a). If there is no valid reason established the onus of proof does not shift back to the Applicant and the court is not required to consider the question of whether the termination of employment was harsh, unjust or unreasonable.
Taking into account my findings on each performance related issue I am not satisfied that the Respondent has discharged it’s burden of proof in showing that any or all of the events alleged occurred and were valid reasons for terminating the Applicant’s employment. At best the performance related issues suggest that there was some conflict between the employer and employee from time to time. Until Borg gave his evidence there was no issue raised at all concerning the Applicant’s mode of dress and it’s relevance to his professionalism as a driver.
Even if any or a combination of the performance related issues did give rise to a valid reason or valid reasons for terminating the Applicant’s employee in accordance with Section 170 DE(1) there was an obvious lack of procedural fairness in the way in which the Respondent conducted itself and a breach of Section 170 DC such that the Applicant was not given any proper opportunity to explain the incidents before his employment was terminated. As was said by Wilcox C.J. in Nicolson v Heaven and Earth Gallery Pty Ltd (Industrial Relations Court of Australia, 20 September 1994, unreported at page 23), Section 170 DC(a) of the Act:-
...does not require any particular formality. But this does not mean that it is unimportant or capable of perfunctory satisfaction. Section 170 DC carries into Australian labour law a fundamental component of the concept known to lawyers as “natural justice” or, more recently, “procedural fairness”. The relevant principle is that a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her without first affording the affected person an opportunity to present a case. .....The employee is to be given the opportunity to defend himself or herself “against the allegations made”; that is, the particular allegations of misconduct or poor performance that are putting the employee’s job at risk. Section 170 DC(a) is not satisfied by a mere exhortation to improve. If required to do so the Applicant could on the evidence before the court discharge the onus of proof under Section 170 DE(2) of the Act because the lack of procedural fairness in the termination process is of itself evidence that the termination of his employment was harsh, unjust and unreasonable.

I have referred to the abovementioned matters first to demonstrate to the Respondent how flawed its approach was to matters of substantive and procedural fairness even if those matters are isolated from the more pressing issue of unionism at the depot. Having said that, I am further satisfied that one of the reasons for terminating the Applicant’s employment was causally linked with the Applicant’s lawful participation in union activities and/or the Applicant acting as a representative of the Respondent’s employees. Insofar as the reasons for terminating the Applicant’s employment were tainted by this reason the Respondent breached Section 170 DF(1)(b) and/or (d). Borg may not have liked the Applicant because of the Applicant’s dress sense and his performance related conduct on some occasions prior to the date of termination. Borg unequivocally asserted his right to tell the committee who could or could not represent the employees as a member of that committee and actively campaigned against the Applicant’s inclusion on the committee. Moreover, he specifically relied on the Applicant’s alleged conduct in criticising and undermining the Respondent vis-a-vis its industrial relations practices when the Applicant chose to discuss enterprise bargaining with employees of the Respondent’s client, Hoechst. Section 170 DF(1)(b) and (d) has much in common with the prohibition contained in Section 334 of the Act against victimisation of employees by their employers because of their participation in union activities. The lastmentioned section involves criminal liability with proof being beyond reasonable doubt; although the employer still carries the burden of proof in showing that its conduct was not motivated by a prohibited reason. In General Motors-Holden Pty Ltd v Bowling (1975) 8 ALR 197 the prima facie inference was that the shop steward’s position as a union delegate had motivated his dismissal. There was evidence that the South Australian management of the company had recommended the employee’s dismissal because of poor work performance. Nevertheless, the decision to dismiss was taken by two Melbourne directors neither of whom gave evidence. There was evidence that the shop steward had organised a work-to-rule campaign and had publicly criticised the employer’s attitude to its workers. Creighton and Stewart, the authors of “Labour Law, An Introduction” (2nd Edition, The Federation Press 1994) argue at page 251 that Bowling’s case suggests that, once union officers or delegates attract a high profile through the performance of their functions and thereby cause difficulties for their employers, this may give rise to a presumption that prejudicial action taken against them by their employer is connected with their status within the union.
By reason of Section 170 EDA(2) of the Act there is a rebuttable presumption that the Respondent has contravened Section 170 DF(1). In the present case the Respondent, rather than actually rebutting any presumed contravention repeatedly pointed to the Applicant’s alleged public criticism of the Respondent’s industrial relations practices as a reason for terminating his employment. In so doing the Respondent has on the facts failed to disprove the contravention as it is required to do by Section 170 EDA(2) of the Act.
Accordingly the termination of the Applicant’s employment on 6 May, 1994 was unlawful and the Applicant is entitled to a remedy under Section 170 EE of the Act from this court.
Remedies
The Applicant now resides with his wife in Brisbane. He was unemployed for three and a half months subsequent to the termination of his employment and received unemployment benefits of $2,471.32 between 6 June and 2 September, 1994. In order to gain full time employment as a driver the Applicant alleged it was necessary for him to relocate in Brisbane with his wife who forwent her employment in Shepparton and her long service leave entitlement in 1995 of $4,000.00. Relocation costs are claimed in the sum of $2,500.00 as well as an increase in rental paid on the Applicant’s Brisbane home of $65.00 per week.
It is alleged by the Applicant that he approached several large companies in the Goulburn Valley area who expressed interest in immediately employing him until those companies checked his references with Borg. The Applicant alleges that a transport operator told him that Borg had been contacted to obtain a reference and this transport operator was informed by Borg that the Applicant was “a trouble maker, that he was involved with the union; that he was involved in enterprise bargaining”. The Applicant did not call evidence from the transport operator to substantiate his allegation that Borg had interfered with his opportunity to obtain gainful employment as a transport driver in Victoria. Not surprisingly Borg denied these allegations. I am unable to conclude on this hearsay evidence that the Applicant’s inability to gain employment in Victoria as a long haul driver and consequently his relocation interstate were brought about or contributed to by the behaviour of the Respondent.
I am satisfied on the evidence that the Applicant is entitled to damages for one week’s compensation in lieu of notice under Section 170 DB(1) of the Act. It is against the spirit of the Act to allow an employer to offer an employee work other than the work contemplated by the contract of employment for the period of notice required under the Act and then to argue that, as in this instance, if the Applicant refused to work on Borg’s farm for one week, the Applicant was not now entitled to appropriate compensation in lieu of notice.
I am required by Section 170 EE(2) to be satisfied that it is impracticable to reinstate this Applicant as a driver with the Respondent before exercising my discretion to award compensation. Both parties argue that it is impracticable to do so and I am satisfied on the facts of this case, particularly because of the Applicant’s reemployment and relocation interstate, that it would not be practicable to reinstate him.
Looking at the question of compensation the court was informed by the Applicant that he worked an average of 72 hours per week at the rate of $16.25 per hour and on the basis of an 80 kilometres per hour which I calculate to be $1,170.00 per week. If the Applicant had been paid in accordance with the Award provisions he alleges he would have received approximately $1,218.75 per week. The Applicant gave no evidence as to his current earnings.
The unemployment benefits paid to the Applicant amount to $2,471.32 for the period between 6 June, 1994 and 2 September, 1994. After deducting these benefits the three and a half months of unemployment gives him on a 72 hours week and at the Award rate of $1,218.75 gross per week a figure of $14,591.18.
The Applicant’s evidence that he worked an average of 72 hours per week was not seriously challenged by the Respondent. The Respondent argued in its submissions that the average of the hours worked by the Applicant each week was probably closer to 50 hours but did not, as was in its power to do so, produce any documentary records or other evidence of the hours worked and the amounts paid to the Applicant. In the circumstances, the Applicant is entitled to the benefit of the doubt and I have calculated his entitlement at the higher rate of 72 hours per week.
The Applicant was deprived of his opportunity to retain his employment by a number of events, not the least of which was his employer’s attitude to his involvement in union and committee activities. It would not be unreasonable to assume that a driver of his experience and obvious ability could have continued his employment with the Respondent had proper enquiries been made on each occasion his performance was assumed to have been inadequate and had Borg not adopted such a jaundiced view of the Applicant. Despite this set back the Applicant has now resumed gainful employment with no alleged continuing loss of remuneration.
Taking all the abovementioned matters into account I have assessed the compensation payable at $13,372.43 gross together with damages pursuant to Section 170 EE(5) of the Act of $1,218.75 gross.
The orders of the Court are:
1.That in terminating the employment of the Applicant, the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
2.That the Respondent pay the Applicant compensation in the sum of $13,372.43 gross.
3.That pursuant to Section 170 EE(5) of the Industrial Relations Act 1988 the Respondent pay to the Applicant damages in the sum of $1,218.75 gross.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding forty six (46) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated:                 23 January 1995
Solicitors for the Applicant:    Transport Workers Union of Australia
  (Victoria Branch) - Ms Krummel
Counsel for the Applicant:     Mr Neville Kenyon
Solicitors for the Respondent: Messrs Madisons
Solicitor appearing for the
Respondent:  Mr Gleeson
Date of hearing:  2, 3 & 4 November, 1994
Date of judgment:                   23 January 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 421 of 1994
B E T W E E N :
BARRY NEILL CORDWELL & ANOR
         Applicant
AND
INTERSTATE DRIVER SERVICES PTY LIMITED
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane        23 January 1995
THE COURT ORDERS:
1.That in terminating the employment of the Applicant, the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
2.That the Respondent pay the Applicant compensation in the sum of $13,372.43 gross.
3.That pursuant to Section 170 EE(5) of the Industrial Relations Act 1988 the Respondent pay to the Applicant damages in the sum of $1,218.75 gross.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - whether Applicant terminated by reason of participation in union activities, seeking office as, or acting as a representative of employees - whether employment terminated for valid reason - procedural fairness.
Industrial Relations Act 1988 ss. 170 EA, 170 DB, 170 DE(1) and (2), 170DF(1)(b) and (d), 170EDA(1) and (2), 334
CASES:Savvidis v Privilege Clothing Pty Ltd VI 1357/94 (Parkinson JR unreported 28 November, 1994)
Nicolson v Heaven and Earth Gallery Pty Ltd (Wilcox CJ, NI 127 of 1994 unreported, 20 September, 1994).
General Motors-Holden Pty Ltd v Bowling (1975) 8 ALR 197

BARRY NEILL CORDWELL & ANOR -v- INTERSTATE DRIVERS SERVICES PTY LIMITED
No. VI 421 of 1994
Before:  Judicial Registrar Millane
Place:  Melbourne
Date:  23 January 1995

[1995] IRCA 15

23 Jan 1995