Duncan v Kelly Logistics Pty Ltd - [2021] FedCFamC2G 330

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duncan v Kelly Logistics Pty Ltd [2021] FedCFamC2G 330

File number(s): MLG 1964 of 2016

Judgment of: HER HONOUR JUDGE C. E. KIRTON QC

Date of judgment: 9 December 2021

Catchwords: INDUSTRIAL LAW – Fair Work – alleged contraventions of various provisions of the Fair Work Act 2009 (Cth) by breaching the Road Transport and Distribution Award 2010 – alleged contravention of the Fair Work Regulations 2009 by failing to keep records as prescribed – consideration of whether the Respondent took adverse action against the Applicant for exercising a ‘workplace right’ – consideration of whether the Respondent beach the employment contract by repudiating the employment contract where the Applicant resigned – application for declarations against the Respondent and for the payment of compensation and pecuniary penalties dismissed.

Legislation:
Fair Work Act 2009 (Cth), ss 12, 45, 87, 340, 341, 342, 535, 545, 546

Occupational Health and Safety Act 2004 (Vic) s 25

Fair Work Regulations 2009, reg 3.33 Road Transport and Distribution Award 2010, cll 15.2, 16.4(e), 24.1, 24.2, 24.3, 24.4, 24.5, 24.9, 24.10, 26.1, 26.3

Heavy Vehicle National Law, ss 3, 5, 227, 229, 457

Heavy Vehicle (Fatigue Management) National Regulation

National Heavy Vehicle Accreditation Scheme

Cases cited:
Abu Dhabi National Tanker Co v Product Start Shipping Ltd (No 2) [1993] 1 Lloyd’s Rep 397

Australian Workers’ Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2000) 106 FCA 482

Cory Brothers & Company Limited v The Owners of the Turkish Steamship “Mecca”[1897] AC 286

James Turner Roofing Pty Ltd WASCA 28 (2003) 132 IR 122

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115

Linkhill Pty Ltd v Director, Officer of the Fair Work Building Industry Inspectorate [2015] FCAFC 99; (2015) 240 FCR 578

Moree Plains Shire Council v Goater [2016] FCAFC 135

Poulos v Waltons Stores (Interstate) Ltd [1986] FCA 159; (186) 10 FCR 429

Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17

Re: Rubel Bronze and Metal Co Ltd [1918] 1 KB 315

Re: Annualised Wage Arrangements [2018] FWCFB 154

Re: Pastoral Award 2010 [2015] FWCFB 8810

Shevill v Builders Licencing Board (1982) 149 CLR 620

Suisse Atlantique Société d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361

The Environmental Group Ltd v Bowd [2019] FCA 951

Division: Division 2 General Federal Law

Number of paragraphs: 174

Date of last submission/s: 9 October 2020

Date of hearing: 7 & 9 October 2020

Place: Melbourne

Counsel for the Respondent: Ms Kelly

Solicitor for the Respondent: Hall & Wilcox
ORDERS

MLG 1964 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ANTHONY PETER DUNCAN

Applicant

AND:
KELLY LOGISTICS PTY LTD (ACN 608 259 061)

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

9 DECEMBER 2021

THE COURT ORDERS THAT:
1.The Application filed on 14 September 2016 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C. E. KIRTON QC:
INTRODUCTION

In this proceeding the Applicant, Anthony Duncan (Applicant), alleges that the Respondent, Kelly Logistics Pty Ltd (Respondent), contravened pt.3-1 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant further alleges that the Respondent has breached s.45 of the FW Act through contraventions of various clauses of the Road Transport and Distribution Award 2010 (RTD Award) and also breached the employment contract by repudiating the employment contract.
The Applicant seeks that the Court makes declarations against the Respondent. The Applicant also seeks orders against the Respondent pursuant to s.545(2)(b) the FW Act for the payment of compensation, and pursuant to ss.546(1) and (3) of the FW Act for the payment of pecuniary penalties to the Applicant.
BACKGROUND
On 19 May 2015 the Applicant commenced employment as a full-time truck driver with Noske Forestry Logistics Pty Ltd (ACN 159 503 545) (Noske Company) and on 21 May 2015 the Applicant and Noske Company entered into a contract of employment (Employment Contract).[1] On 7 October 2016 the Respondent purchased Noske Company’s business and there was a transfer of business from Noske Company to the Respondent, within the meaning of s.311 of the FW Act.[2] On or about 9 October 2015, following the purchase of Noske Company’s business, the Applicant’s employment was transferred to the Respondent.
[1] Affidavit of Anthony Stuart Noske, sworn April 2018 and filed 19 April 2018, [43] and Annexure TN-4.
[2] Respondent’s Outline of Submissions, 9.10.20, [12].
The Respondent operates a road transport business. At all relevant times the Respondent operated a depot at 43 Westlakes Drive, Portland in the State of Victoria (Depot). The Respondent had at all relevant times a single client in Portland, South West Fibre Pty Ltd (SWF), a company that processes and exports woodchips. The Respondent transports woodchips from the Myamym Mill to the Port of Portland in the State of Victoria, using B-Double configured trucks.
The Respondent employed drivers for its operation and provided the vehicles they were to drive.
At all relevant times the Respondent operated a standard rotating roster (Rotating Roster), which provided for:
(a)Three shifts of up to 12 hours (including ordinary hours and overtime hours) each commencing at staggered times between 2:30 am and 3:15 am (AM Roster), followed by a 24 hour break; and
(b)Three shifts of up to 12 hours (including ordinary hours and overtime hours) each commencing at staggered times between 2:30 pm and 3:30 pm (PM Roster), followed by a three day break.
Each shift had 7.6 ordinary hours and up to 4.4 hours of overtime.[3] All drivers employed by the Respondent worked the Rotating Roster.
[3] Respondent’s Outline of Submissions, 9.10.20, [8].
At all relevant times the RTD Award applied to the Applicant. It is common ground that the Applicant was classified as Grade 8 under Schedule C of the RTD Award.[4] The Applicant was a shift worker for the purposes of the RTD Award.
[4] Amended Statement of Claim, filed 13.10.17, [10]; Defence, filed 10.11.17, [10].
In addition to the Applicant the following individuals and their roles are relevant to these proceedings:
(a)Anthony Stuart Noske was employed by the Respondent as General Manager of Operations and Business Development;
(b)Ronald John Reed was employed by the Respondent as the SWF Contract Manger; and
(c)Donald Benjamin Cameron was employed by the Respondent as the Administration Manager.
During his employment with the Respondent the Applicant reported to Ronald Reed. During the course of the Applicant’s employment with the Respondent he communicated with Mr Reed and Mr Noske (individually or collectively) in relation to a number of matters as follows:
(a)The Applicant’s application to change his roster from the Rotating Roster and to work a permanent night shift;
(b)The Applicant’s application for annual leave at Easter in 2016;
(c)An incident occurring between the Applicant and two other employees of the Respondent, Anthony Flynn and Craig Gavin in early September 2015;
(d)Mr Reed’s concern that the Applicant was performing his work in a manner that hindered other divers from completing 7 deliveries each shift and that the Applicant was performing his work in an unsafe manner; and
(e)The Applicant taking sick leave and stress leave and his employment entitlements arising as a result of taking this leave.
The Applicant sent an email to Mr Reed, copied to Mr Noske and Mr Cameron, late on the evening of 25 April 2016, advising that he was resigning from his employment with the Respondent effective immediately.
ISSUES IN DISPUTE
By way of summary the Applicant alleges that the Respondent:
(a)Failed to pay the Applicant in accordance with the RTD Award, and thereby contravened s.45 of the FW Act;
(b)Failed to provide the Applicant with rest breaks and meal breaks in accordance with the RTD Award, and thereby contravened s.45 of the FW Act;
(c)Failed to make and keep records in relation to the Applicant of the kind prescribed by reg.3.33(3) of the Fair Work Regulations 2009 (FW Regulations), and thereby contravened s.535 of the FW Act;
(d)Took adverse action against the Applicant contrary to s.340 of the FW Act, as the Applicant had exercised his ‘workplace rights’ in the course of his employment; and
(e)Breached the Employment Contract by repudiating the Employment Contract.
The Respondent denies that the Applicant is entitled to any relief and that any of his claims are valid. In summary the Respondent says:
(a)The RTD Award was not breached;
(b)The Respondent did not take adverse action against the Applicant; and
(c)The Applicant resigned from his employment for reasons unknown to the Respondent.
PLEADINGS
The Application – Fair Work Division and Form 2 were filed on 14 September 2016 (Application). The Applicant relied on the Amended Statement of Claim, filed on 13 October 2017 (Amended Statement of Claim). The Respondent relied on the Defence to the Amended Statement of Claim, filed on 10 November 2017 (Defence).
EVIDENCE
The Final Hearing, held on 7 October 2020 and 9 October 2020, was conducted remotely and electronically via Microsoft Teams due to the restrictions in force in the State of Victoria, due to the global pandemic of COVID-19. At the time of the Final Hearing Metropolitan Melbourne was subject to Stage 4 restrictions, which came into force from 6:00 pm on Sunday 2 August 2020.
The evidence before the Court included:
(a)The affidavit of the Applicant, Anthony Peter Duncan, affirmed 15 March 2018 and filed 19 March 2018 (with Annexures 1 and 2 removed by prior agreement between the parties) (Duncan Affidavit);[5]
(b)The affidavit of Anthony Stuart Noske, sworn 16 April 2018 and filed 19 April 2018 on behalf of the Respondent (Noske Affidavit);[6]
(c)The affidavit of Ronald John Reed, affirmed 25 April 2018 and filed 3 May 2018 on behalf of the Respondent (Reed Affidavit);[7] and
(d)The affidavit of Donald Benjamin Cameron, sworn 16 April 2018 and filed 19 April 2018 on behalf of the Respondent (Cameron Affidavit).[8]
[5] Court Book (CB) 45-60.
[6] CB 200-293.
[7] CB 294-392.
[8] CB 80-199.
On 7 October 2020, the first day of the Final Hearing, the Court heard objections as to evidence at the commencement of the hearing. The Respondent had prepared a ‘List of Objections to Evidence’[9] and the Applicant had prepared a responding ‘List of Objections to the Admissibility to the Evidence’.[10] The Respondent objected to the following parts of the Duncan Affidavit:
(a)Paragraphs 1 to 4;
(b)Paragraph 14(r);
(c)Paragraph 17(d) – The words ‘due to the relationship between the manager Mr Reed, Mr Croft and Mr Gaven’;
(d)Paragraph 18(a) – The words ‘7 days off due to stress’;
(e)Paragraph 25(b) – The words ‘that I know to be untrue’; and
(f)Paragraphs 27(c) to (k) – Each of the sub-paragraphs.
[9] Received by the Chambers of the Associates to Judge C.E. Kirton QC by email on 2 October 2020.
[10] Received by the Chambers of the Associates to Judge C.E. Kirton QC by email on 6 October 2020.
The Court agreed with the Respondent’s objections referred to in the preceding paragraph, as did the Applicant. Accordingly, the parts of the Duncan Affidavit referred to in the preceding paragraph were struck out by consent.
The Respondent also objected to paragraph 33 of the Duncan Affidavit.[11] The Applicant ‘disagreed strongly’ with the objection.[12] The Court upheld the objection and paragraph 33 was struck out by order of the Court.
[11] ‘List of Objections to Evidence’, received by the Chambers of the Associates to Judge C.E. Kirton QC from the Respondent by email on 2 October 2020.
[12] ‘List of Objections to the Admissibility to the Evidence’, received by the Chambers of the Associates to Judge C.E. Kirton QC from the Applicant by email on 6 October 2020.
The Applicant and Ronald Reed each gave evidence at the hearing.
Exhibits tendered during the hearing were marked as follows:
(a)Exhibit A1, pages 462 to 466 of the Court Book (CB), the Applicant’s calculations of ‘Quantum of Underpayment of Wages and Unfair Dismissal’ (Applicant’s Calculations);
(b)Exhibit A2, the Duncan Affidavit;
(c)Exhibit A3, pages 571 to 577 of the CB, the Applicant’s Summary of the Operator’s Daily Work Sheets (Applicant’s Summary of the Operator’s Daily Work Sheets);
(d)Exhibit A4, pages 460 to 461 of the CB, Google Maps Satellite Photo of the Woodchip Mill;
(e)Exhibit R1, the Cameron Affidavit;
(f)Exhibit R2, the Noske Affidavit;
(g)Exhibit R3, pages 578 to 585 of the CB, the Respondent’s ‘Comparison Between Wages Paid and Award Entitlements’ (Respondent’s Calculations); and
(h)Exhibit R4, the Reed Affidavit.
The Court also read and reviewed the transcript of the Final Hearing held on 7 October 2020 and 9 October 2020 prior to finalising these Reasons for Judgment.
The Applicant
The Applicant gave evidence in chief by way of the Duncan Affidavit. He was also cross-examined. The affidavit evidence can be summarised as follows:
(a)On 21 November 2015 a co-worker Kris Hill approached the Applicant at the Depot and asked the Applicant if he would exchange shifts, so that Mr Hill could be at home in the afternoons to help his wife with their unwell child. The Applicant agreed to exchange shifts, as it would ‘help manage my fatigue’.[13]
[13] Duncan Affidavit, [8(a)].
(b)On 22 November 2015 the Applicant had a discussion with Mr Reed at the Depot in front of the workshop. The Applicant asked Mr Reed if he could exchange shifts with Mr Hill and Mr Reed replied that the Respondent would have to pay higher wages if drivers were to exchange shifts. The Applicant disagreed with Mr Reed and explained that wages would remain the same. Mr Reed then said that it would breach work diary laws. The Applicant disagreed with Mr Reed and explained that no work diary laws would be breached. Mr Reed then again rejected the Applicant’s request to exchange shifts. The Applicant then explained to Mr Reed that it was his responsibility as a manager to work with the drivers to help them manage their fatigue. Mr Reed responded with ‘Don’t give me that shit. If you don’t like it fuck off back to where you come from’ and walked off.[14]
[14] Duncan Affidavit, [9(a)] – [9(h)].
(c)In January 2016 the Applicant spoke to Mr Hill about the exchange of shifts. Mr Hill advised the Applicant that his child had passed away and that he no longer needed to exchange shifts.[15]
[15] Duncan Affidavit, [13].
(d)In November 2015 the Applicant made ‘administrative errors’ while working night shift. As a result a co-worker Anthony Flynn called the Applicant a ‘fucking idiot’ over the UHF radio on an open channel that other co-workers and mill workers used. When the Applicant approached Mr Flynn in relation to this incident, Mr Flynn claimed that it was another co-worker Craig Gavin who had made the remark. When the Applicant approached Mr Gavin in relation to this incident, Mr Gavin said that it was Mr Flynn who had made the remark. Mr Gavin then said ‘Why don’t you just do your job. And do it properly’. The Applicant then said ‘You are not a supervisor so keep your opinion to himself (sic)’[16] The Applicant then approached Mr Flynn again, who admitted making the remark. The Applicant and Mr Flynn then had an exchange of words and Mr Flynn left saying that he was going to contact the Supervisor Geoff Cairns. After this incident the Applicant began to feel unwell and decided to complete his shift and go to see his doctor. The Applicant contacted Mr Cairns and told him about the altercation with Mr Flynn and Mr Cairns asked the Applicant ‘What do you want me to do about it?’ The Applicant replied ‘Discipline him. Tell him to respect others’. Mr Cairns said that he would let Mr Reed know about the incident.[17]
[16] Duncan Affidavit, [14(f)].
[17] Duncan Affidavit, [14].
(e)In December 2015 when Mr Reed returned from his holidays, the Applicant told Mr Reed about the altercation that he had with Mr Flynn. Mr Reed said that Mr Flynn was ‘our best loader driver. What do you want me to do about it?’ The Applicant responded ‘Discipline him and tell him to respect others’. Mr Reed then replied aggressively ‘I don’t want to hear about it. You guys sort it out’. The Applicant did not respond and left.[18]
[18] Duncan Affidavit, [15].
(f)On 2 March 2016 the Applicant sent Mr Reed an email requesting annual leave on 24 March 2016 and 25 March 2016. Shortly afterwards Mr Reed sent an email to the Applicant refusing the Applicant’s request for annual leave.[19]
[19] Duncan Affidavit, [20] and [21].
(g)On 3 March 2016 at the Myamyn Mill weighbridge office and on route to the Port of Portland, a co-worker Trent Croft called another co-worker Matthew Bevan on the UHF channel 40 (which is a channel that is open to the public), and told Mr Bevan ‘Don’t rush fuck head (being the Applicant) is in front of you’. When the Applicant passed Mr Croft on route to the Port of Portland he indicated that he wanted to see Mr Croft. Mr Croft responded by saying to the Applicant over channel 40 on the UHF ‘Do you want a go c…t?’ The Applicant responded that ‘I want to see you about what you said back there’. Mr Croft said ‘I’m sick of you holding every one up, stopping for your fucking breaks’. The Applicant said ‘Keep going Trent’ whereupon Mr Croft ceased communicating with the Applicant.[20]
[20] Duncan Affidavit, [16].
(h)On 4 March 2016 the Applicant confronted Mr Croft at the Depot and asked him ‘So what was it you said Trent. Do you want a go c..t?’ Mr Croft replied ‘You are a c..t, stopping for half an hour and holding every one up’. The Applicant said ‘We are supposed to. It is the law’. Another co-worker Criag Gavin became involved and said to the Applicant ‘We’ll see this afternoon’. The Applicant felt anxious for two days after this incident, as he was concerned that he would be dismissed.[21]
(i)On 10 March 2016 the Applicant attended his doctor, who gave him a doctor’s certificate and made an appointment for him to see a psychologist.[22] The Applicant sent a text message to Mr Reed to let him know that he would not be at work for a week and that he had a doctor’s certificate. Mr Reed called the Applicant shortly after receiving the text and asked ‘What’s wrong with you?’ The Applicant said ‘I’m not well’. Mr Reed said ‘So what is wrong with you?’ The Applicant said ‘I’m not well I have a doctor’s certificate’. Mr Reed said ‘That’s a shame’ and the Applicant responded with ‘Yes it is Ron’. Mr Reed then said very aggressively ‘I’m getting tyred (sic) of these sickies and breaks your (sic) having Anthony’. The Applicant then said ‘Send it in an email Ron’ and hung up, to avoid becoming more anxious and causing another anxiety attack.[23]
(j)On 13 March 2016 the Applicant sent an email to Mr Reed saying that he believed that the rejection of his request for annual leave was unreasonable. On 13 March 2016 Mr Noske sent an email to the Applicant, copied also to Mr Reed, advising the Applicant that he could not take the requested annual leave. The email also said that the Applicant should learn to understand the Respondent’s requirement to fully service SWF. Mr Noske said that if the Applicant was not willing to do that, he should advise the Respondent so they could help him find another job.[24]
(k)On 16 March 2016 the Applicant sent a further email to Mr Reed maintaining his request for the annual leave. Mr Reed responded by an email on 23 March 2016 again rejecting the Applicant’s request for the annual leave. Mr Reed also made some allegations in relation to the Applicant’s ability to perform his job safely.[25]
(l)On 23 March 2016 the Applicant attended the Depot with his partner Heather Wall and approached Mr Reed in Mr Reed’s office. The Applicant told Mr Reed that he wanted to speak to him about the email that Mr Reed had sent earlier that day. Mr Reed refused to speak with the Applicant and told him to ‘Go out and see my WorkSafe mate’. The Applicant said that he was not my mate and that he would be going on stress leave due to harassment by work colleagues and management. Mr Reed replied that the Applicant did not have any leave left. The Applicant said that he did not need personal leave to take stress leave. Mr Reed replied ‘It’s your job’. The Applicant and Ms Wall then left the office. The Applicant and Ms Wall then went and spoke to the WorkSafe officer who was responding to a complaint that the Applicant had made to WorkSafe some two weeks earlier, and who had by coincidence arrived that day. They spoke to the WorkSafe officer for about half an hour.[26]
(m)On 1 April 2016 the Applicant sent Mr Reed an email requesting that he ‘prove his claims’ made in the email sent by Mr Reed on 23 March 2016. The Applicant also asked for any employment agreement that stated that he was required to undertake ‘seven loads per shift’.[27]
(n)On 9 April 2016 Mr Reed sent the Applicant an email asking for a letter from the Applicant’s doctor stating that the doctor was comfortable with the Applicant participating in work related discussions whilst on personal leave for work related stress. The email also requested permission for the Respondent to speak with the Applicant’s treating practitioner to assist with his recovery.[28]
(o)On 15 April 2016 the Applicant sent to Mr Reed an email which attached a ‘Letter of approval for discussions on issues resolution’. The Applicant also requested a discussion with the Respondent in relation to issues mentioned in previous emails. The Applicant also attached examples of ‘what the award says we should be payed (sic) and what we are being paid’.[29]
(p)On 18 April 2016 the Applicant sent an email to Mr Reed again requesting to discuss with the Respondent the issues mentioned in previous emails and additional issues. The Applicant asked the Respondent to reply by the following day, 19 April 2019.[30]
(q)As at 26 April 2016 the Respondent had not replied to the Applicant’s email sent to Mr Reed on 18 April 2016. ‘Due to the stress of working for [the Respondent] and the avoidance of talk of the issues I found I had no other option but to notify them of my resignation’.[31]
[21] Duncan Affidavit, [17].
[22] Duncan Affidavit, [18].
[23] Duncan Affidavit, [19(a)] – [19(i)].
[24] Duncan Affidavit, [22] and [23].
[25] Duncan Affidavit, [24] and [25].
[26] Duncan Affidavit, [26] and [27(a) and (b)].
[27] Duncan Affidavit, [28].
[28] Duncan Affidavit, [29].
[29] Duncan Affidavit, [30].
[30] Duncan Affidavit, [31].
[31] Duncan Affidavit, [32].

The Applicant’s evidence in cross-examination was broadly consistent with the evidence he provided in his affidavit. Under cross-examination the Applicant accepted that the incident he recounted in relation to Mr Flynn and Mr Gavin,[32] took place in September 2015 when Mr Reed was on leave, and not in November 2015.[33]
[32] Duncan Affidavit, [14] and [15].
[33] Transcript (7.10.20) P37:L26-P38:L4.
The evidence given by the Applicant was for the most part candid, however there were occasions where the Applicant did become evasive, defensive or argumentative when certain questions were asked of him that did not conform to his case.[34] The Applicant on occasions became quite emotional.
[34] Transcript (7.10.20) P45:L29-37; P48:L1-45.
Anthony Noske
Mr Noske gave evidence in chief by way of the Noske Affidavit. Mr Noske was not required by the Applicant for cross-examination. His evidence can be summarised as follows:
(a)Mr Noske is employed by the Respondent as General Manager Operations and Business Development and his primary work location is the Depot.[35] Before commencing employment with the Respondent, he was employed by Noske Company. Mr Noske has also previously been a director and company secretary of Noske Company.[36]
[35] Noske Affidavit, [1] and [2].
[36] Noske Affidavit, [4].
(b)On 7 October 2015 the Respondent purchased Noske Company’s business. The Respondent’s only client in Portland is SWF. Noske Company had a contract with SWF since August 2009 (SWF Contract). After the transfer of the Noske Company business to the Respondent, the Respondent took over the SWF Contract. Pursuant to the SWF Contract the Respondent transports by road, in B-Double trucks, woodchips from the Myamym Mill to the Port of Portland in the State of Victoria.[37]
[37] Noske Affidavit, [5]-[9].
(c)The Respondent employs between 19 and 21 truck drivers, each employed on a full-time basis (Driver(s)).[38]
[38] Noske Affidavit, [10].
(d)The driving time from the loading point at the Myamym Mill to the unloading point at the Port of Portland is 45 minutes, with the trucks travelling at legal speeds. The return trip with an empty truck takes between 40 to 45 minutes. The trucks are speed limited to a maximum of 95 kilometres per hour. When a Driver arrives at the Port of Portland the time to unload the truck is between 7 and 10 minutes. The Driver’s only part in the unloading is to engage the truck’s hydraulic drive system and press a button to commence the unloading process. The Driver then sits in the cab of the truck and observes the unloading process via a CCTV screen.[39]
[39] Noske Affidavit, [11] and [12].
(e)Mr Noske’s principal responsibility is management of customer and contract relationships and overseeing and supporting the supervisor for the SWF Contract. Mr Reed reported to Mr Noske.[40]
[40] Noske Affidavit, [14] and [15].
(f)Mr Noske is also responsible for ensuring the Respondent’s compliance with the Heavy Vehicle National Law (HVNL) and the Heavy Vehicle (Fatigue Management) National Regulation (HVFM Regulation). Noske Company was, and the Respondent is, accredited under the National Heavy Vehicle Accreditation Scheme (NHVAS), which is administered by the National Heavy Vehicle Regulator (NHVR). As part of the NHVAS, the Respondent is subject to external audit by the NHVR every two years. Mr Noske produced the NHVR National Heavy Vehicle Accreditation Audit Report for: Noske Company for the audit completed on 18 February 2015; and for the Respondent for the audit completed on 21 March 2017.[41]
[41] Noske Affidavit, [16]-[18] and Annexures TN-1 and TN-2.
(g)Under the HVNL it is the responsibility of each Driver to take breaks and manage their own fatigue. If a Driver feels fatigued, they are free to, and should take a break. Taking a break is not a problem, except if a Driver is doing this continuously during a shift, as this can be an indication that the Driver is not managing their fatigue and may not be fit for work. At about the time of the introduction of the Rotating Roster, to assist the Drivers, Mr Noske and Mr Reed in consultation with the Drivers, created three example daily work plans that the Drivers could use to manage their fatigue and plan their breaks. The daily work plans were designed as a guide only and not as rosters to which Drivers are to adhere.[42]
[42] Noske Affidavit, [19] and [20] and Annexure TN-3.
(h)The Rotating Roster for Drivers that the Respondent has in place was devised and implemented by Mr Noske and Mr Reed in late 2012 or early 2013, and has not changed since it was implemented. It was in place when the Applicant was employed by the Respondent.[43] All Drivers worked the Rotating Roster.[44]
[43] Noske Affidavit, [22].
[44] Nose Affidavit, [26].
(i)Drivers are ‘generally expected to complete seven deliveries in each 12 hour shift and it is usual for Drivers to complete seven deliveries in their 12 hour shift. However Drivers are not punished if they do not complete seven loads in each shift’.[45]
[45] Noske Affidavit, [27].
(j)To ensure that there were breaks between trucks leaving the Depot, the starting times of the Rotating Roster for the Drivers were staggered. Drivers on the AM Roster commence at 2:30 am, 2:45 am, 3:00 am and 3:15 am and Drivers on the PM Roster commence at 2:30 pm, 2:45 pm, 3:00 pm and 3:15 pm.[46]
[46] Noske Affidavit, [28].
(k)The nature of the Rotating Roster means that individual requests for roster changes cannot be easily accommodated. It is a safety risk and a concern to have a Driver working a permanent night shift due to the HVFM Regulation. At the end of each shift that the Applicant worked he signed a daily work sheet setting out his start and finish times, and stating that he had taken breaks to manage his fatigue, and the start and finish times of those breaks (Applicant’s Daily Work Sheet).[47]
[47] Noske Affidavit, [30], [31] and [34].
(l)Pursuant to the Respondent’s remuneration arrangements for Drivers (Drivers’ Remuneration Arrangements):
(i)The Applicant was paid an hourly rate of $25.00 per hour (Hourly Rate) for each hour worked including breaks, plus $150.00 per week as a safety and performance bonus pro rata based on the number of shifts worked in the week (Additional Payment);
(ii)The Applicant was always paid the Additional Payment during his period of employment by the Respondent, therefore he was never paid less than $27.50 per hour for each hour worked;
(iii)The Hourly Rate was an aggregated rate which took into account other separately identifiable amounts payable under the RTD Award including allowances (including meal allowances) and penalty rates;
(iv)The Hourly Rate was paid to Drivers (including the Applicant) when they were on annual leave, personal leave and when they were not at work due to a public holiday; and
(v)In being paid the Hourly Rate and the Additional Payment, the Applicant received more than he would have received if he had been paid in accordance with the RTD Award.[48]
[48] Noske Affidavit, [35].
(m)Drivers (including the Applicant) were paid for all of the hours worked of the shift including for any time for a break, provided the Driver had completed seven (7) trips. When a Driver completes seven (7) loads but only worked for 11½ hours, the Driver is paid for 12 hours. When a Driver is prevented from completing seven (7) loads due to factors beyond their control, the Driver will be paid for 12 hours. Where there is no event beyond a Driver’s control (such as a breakdown), which prevents a Driver from completing seven (7) loads, and a Driver does six (6) loads in 11 hours, they will be paid for 11 hours. Completing six (6) loads in 11 hours would reflect that the Driver had three (3) hours available for rest breaks and work time during the shift, based on a 12 hour shift.[49]
[49] Noske Affidavit, [36]-[40].
(n)The Applicant was employed by Noske Company as a casual driver from around October 2014 to December 2014. The Applicant recommenced employment with Noske Company as a full-time Driver on 19 May 2015. When the Applicant recommenced employment with Noske Company he was given a letter of offer from Noske Company, dated 20 May 2015 (Letter of Offer).[50] The Letter of Offer was signed by the Applicant on 21 May 2015. On or about 9 October 2015, after the sale of the Noske Company business to the Respondent, the Applicant’s employment was transferred to the Respondent. The Applicant was given, and signed, a transfer of employment letter from the Respondent.[51]
[50] Noske Affidavit, [41]-[43] and Annexure TN-4.
[51] Noske Affidavit, [44] and Annexure TN-5.
(o)During the Applicant’s employment with Noske Company and the Respondent, the Applicant reported to Mr Reed.[52] The Applicant generally worked the AM Roster from 2:30 am to 2:30 pm and the PM Roster from 2:30 pm to 2:30 am.[53]
[52] Noske Affidavit, [47].
[53] Noske Affidavit, [48].
(p)The Respondent has a Navman GPS System (GPS System) that tracks the Respondent’s trucks 24 hours a day, 365 days a year. At any time the GPS System can show the location of a truck, whether the truck is stationary or moving, and at five (5) minute intervals, the speed at which the truck is moving. The GPS System is also set up to notify Mr Noske by text of any truck that exceeds the speed limit set by the Respondent in speed zones set by the Respondent. Mr Reed would also receive these texts.[54]
[54] Noske Affidavit, [49]-[53].
(q)When the Applicant recommenced employment with Noske Company in 2015 Mr Noske considered that ‘initially his performance was acceptable’. However at about the time when Noske Company sold the business to the Respondent, Mr Noske considered that the Applicant’s ‘behaviour started to change’.[55]
[55] Noske Affidavit, [54].
(r)In the course of his work Mr Noske spoke regularly with Mr Reed. Mr Reed frequently discussed with Mr Noske his concerns regarding the Applicant. Mr Reed and Mr Noske discussed:
(i)That the Applicant was performing his work in a manner that hindered the other Drivers from completing seven (7) deliveries per shift. This behaviour included, the Applicant stopping his vehicle in the line when at the woodchip mill or at the Myamym Mill weighbridge, appearing to fiddle with the vehicle to hinder unloading or loading and pulling his vehicle out of the line, so as to delay the unloading process; and
(ii)That the Applicant’s conduct was causing other employees of the Respondent, including the Drivers to become frustrated, as the Applicant was preventing them from completing their work.[56]
[56] Noske Affidavit, [55] and [56].
(s)In September 2015 Anthony Flynn, a front end load operator, complained to Mr Noske that the Applicant was creating disruption by ‘causing the trucks to start banking up’. This caused Mr Flynn to miss his breaks so that he could complete loading the trucks. Mr Gavin also complained to Mr Noske about the Applicant at the same time as Mr Flynn made his complaint. Mr Noske thought that Mr Flynn and Mr Gavin were going to lodge a formal complaint about the Applicant, however they did not do so.[57]
[57] Noske Affidavit, [57]-[60].
(t)At about the time of the incident referred to in the previous sub-paragraph, Mr Noske spoke to the Applicant regarding various matters, including the Applicant’s attitude to his co-workers and his interactions with Mr Flynn and Mr Gavin. Mr Noske recalls saying:
You drivers need to work as a team. This business works best if everyone works at the same pace. If you need to take a break, you need to take it in a way that doesn’t disrupt the other drivers and limit their ability to do their work.[58]
[58] Noske Affidavit, [62].
(u)Mr Noske recalls that this conversation was a reasonably pleasant conversation, during which the Applicant did not make a complaint about Mr Flynn.[59]
[59] Noske Affidavit, [63].
(v)In the week commencing 21 February 2016 Mr Reed notified the Drivers that the Respondent would require all its Drivers on all shifts for the next 4 to 8 weeks, due to SWF’s requirements (Easter Leave Directive). Mr Noske understood from his discussions with Mr Reed at the time, that on 2 March 2016 the Applicant requested annual leave on Thursday 24 March 2016 (the day before the Good Friday public holiday) and also stated that he would not be available to work on Friday 25 March 2016 (the Good Friday public holiday). On 2 March 2016 Mr Reed refused the Applicant’s request for annual leave and stated that the Applicant was expected to work his rostered shift on 24 March 2016.[60]
[60] Noske Affidavit, [64] and [65].
(w)On 10 March 2016 the Applicant commenced a period of personal (sick) leave. On 13 March 2016 the Applicant sent to Mr Reed an email expressing the Applicant’s view that the refusal to grant him annual leave on 24 March 2016 was unreasonable. Mr Reed forwarded this email to Mr Noske.[61] On 13 March 2016 Mr Noske sent to the Applicant an email, which stated:
[61] Noske Affidavit, [66] and [67].
Anthony
The refusal to allow Annual Leave is because of our customers (SWF) shipping requirements.
Neither of us or SWF control the shipping schedule - SWF customers control it.
SWF is our only customer in Portland, therefore our total business operation in Portland resolves around responding to what they need us to do.
Ron has a very difficult job to do in order to satisfy all stakeholders and at the end of the day has no choice other than to meet the SWF requirements as without them we have no need for any drivers.
It seems to me that you are not able to understand that.
I suggest you quickly learn to understand our requirement to fully service SWF and the need to work with Ron and the team to make sure we satisfy our contract obligations to SWF.
If you are not willing to do that, i suggest you advise us now so we can help you find another job.
Regards
Tony Noske […][62]
[62] Noske Affidavit, [68] and Annexure TN-6.
(As written)
(x)After the Applicant sought leave at Easter 2016, Mr Reed told Mr Noske that the Applicant had sought to change his roster in November 2015 so that he could work a permanent night shift.[63]
[63] Noske Affidavit, [85].
(y)On 23 March 2016 Mr Reed sent an email to the Applicant again confirming that the Applicant’s request for annual leave on 24 March 2016 was refused. The email also indicated to the Applicant a number of concerns Mr Reed wanted to address with the Applicant regarding the Applicant’s work performance (Performance Concerns). Mr Noske was copied in on this email.[64]
(z)The Performance Concerns had existed for some time, but Mr Reed had not formally raised them with the Applicant. The Applicant’s conduct that had given rise to the Performance Concerns included:
(i)The Applicant pulling over and taking a break in a location that interrupted the other trucks and caused inconvenience to other Drivers, and sometimes the front end loader operators. The Applicant would stop at the entry of the Myamym Mill weighbridge, the entry of the unloading facility and at the front gate of the Myamym Mill. This meant that other Drivers could not load or unload;
(ii)The Applicant would pull up in his truck at the front gate to the Port of Portland or the Myamym Mill and then when the next truck arrived, pull in front of the truck, forcing the other Driver to stop. This created frustration with other Drivers;
(iii)The GPS System data showed examples of the Applicant travelling in excess of 100 kilometres per hour where the trucks had been speed limited to 95 km by the Respondent; and
(iv)The Applicant was recording that he was working 12 hours for shifts, but routinely only completed 6 loads, where the GPS System data indicated that the Applicant was not accurately recording his breaks.[65]
(aa)Mr Reed was not able to discuss the Performance Concerns with the Applicant because from 23 March 2016 the Applicant was not at work, as he was absent on unpaid sick leave until he resigned on 25 April 2016. Between 23 March 2016 and 25 April 2016 there were a number of emails passing between the Applicant and Mr Reed. Mr Noske was copied in on many of these emails. Mr Noske was informed by Mr Cameron that the Respondent had been advised by its WorkCover insurance agent that the Respondent should not participate in any communications with an employee who was on sick leave for stress.[66]
(bb)On 25 April 2016 Mr Reed received an email from the Applicant giving notice of his resignation. Mr Noske was also copied in on this email from the Applicant.[67]
[64] Noske Affidavit, [70] and [71].
[65] Noske Affidavit, [72] and [73] and Annexure TN-7.
[66] Noske Affidavit, [75]-[77].
[67] Noske Affidavit, [78].
The Applicant made no submissions as to the weight to be afforded to Mr Noske’s affidavit evidence. In those circumstances, the Court accepts Mr Noske’s evidence.
Ronald Reed
Mr Reed gave evidence in chief by way of the Reed Affidavit. Mr Reed was also cross-examined by the Applicant. The affidavit evidence can be summarised as follows:
(a)Mr Reed was employed by the Respondent as SWF Contract Manager from about 7 October 2015 to about 10 October 2017. Prior to being employed by the Respondent Mr Reed was employed by Noske Company, in the same role from about October 2006. Mr Reed worked at the Depot. In his role with the Respondent, Mr Reed was responsible for employing and rostering people, managing the Depot and making sure the Respondent was meeting its contractual obligations to its client SWF. Part of Mr Reed’s role also included oversight of the Respondent’s compliance with the HVNL and the HVFM Regulation.[68]
[68] Reed Affidavit, [3], [4], [6], [7], [9] and [11].
(b)When Mr Reed was working for the Respondent, the Respondent had between 18 to 21 Drivers, each employed on a full-time basis. The duties of the Drivers, including the Applicant, were to drive a B-double truck to transport woodchips from the Myamym Mill to the Port of Portland in the State of Victoria. This is a round trip of about 92 kms.[69]
[69] Reed Affidavit, [12]-[14].
(c)As the business of Noske Company grew, Mr Reed was required to develop a roster that could operate 24 hours, 7 days a week. He therefore developed the Rotating Roster that is still in place today. The Rotating Roster was introduced by Noske Company in around late 2012 or early 2013 by Mr Reed and Mr Noske.[70] The reason the Rotating Roster was implemented was partly because of the work diary requirements under the HVNL, being the requirement that Drivers could only work 32 night hours in a single week before all additional hours had to be counted as double hours in the work diary. Once a truck driver gets to 32 night hours, they then very quickly get to the maximum of 72 hours a truck driver is allowed to drive in a week. The Rotating Roster meant that Drivers were not driving too many night hours. It is also a safety concern to have a Driver working a permanent night shift, due to the monotony of the work.[71]
[70] Reed Affidavit, [22] and [23].
[71] Reed Affidavit, [24] and [25].
(d)All Drivers were rostered to work the Rotating Roster.[72]
[72] Reed Affidavit, [28].
(e)Where a Driver was able to complete seven (7) loads in less than 12 hours, they would be paid for the full 12 hour shift. If a Driver completed less than seven (7) loads in a shift, they would be paid for the hours they worked. Drivers were not subject to discipline if they did not complete seven (7) deliveries in a shift, however they were only paid for the hours that they worked. The nature of the Rotating Roster means that individual requests for roster changes cannot be easily accommodated. Changing the roster for one Driver could impact other Drivers, not just the Driver seeking the change.[73]
[73] Reed Affidavit, [30] and [31].
(f)Under the HVNL each Driver is personally responsible for ensuring they manage their own fatigue, including taking rest breaks while driving. Each Driver had to sign a Daily Work Sheet each shift, which dealt with the pre-trip check of the truck, fatigue management (including breaks) and fitness to work. The Drivers were paid for the hours they worked based on the Daily Work Sheet. At the end of each shift the Applicant signed a Daily Work Sheet stating that he had taken rest breaks during the shift and specifying the duration of the rest break.[74]
[74] Reed Affidavit, [33]-[36] and Annexure RR-1.
(g)When the Applicant recommenced employment with Noske Company in May 2015, Mr Reed considered that the Applicant didn’t seem to have the same attitude to his work that he had when he had previously worked for Noske Company. The Applicant was routinely completing six (6) deliveries per shift and carrying out his work in a manner that hindered other Drivers from completing seven (7) deliveries per shift. Various Drivers reported to Mr Reed that the Applicant was stopping his truck in the line at the woodchip mill or at the Myamym Mill weighbridge, appearing to fiddle with the truck to hinder unloading or loading, and was also pulling his vehicle out of the line so as to delay the unloading process. This conduct by the Applicant caused other employees, including other Drivers, to become frustrated with the Applicant.[75]
[75] Reed Affidavit, [45]-[47].
(h)On 21 September 2015 when Mr Reed returned from annual leave, the Applicant told Mr Reed about an incident involving Mr Flynn and Mr Gavin in early September 2015, which occurred whilst Mr Reed was on leave. The Applicant told Mr Reed that Mr Flynn had referred to him as a ‘fucking idiot’ and that Mr Gavin had said to the Applicant ‘Why don’t you just do your job properly’. The Applicant did not ask Mr Reed to do anything particular in relation to this incident, so Mr Reed said ‘Leave it with me’. At the time of this incident Mr Cairns was acting in Mr Reed’s position, whilst Mr Reed was on annual leave. Mr Cairns resigned his employment with the Respondent in late September 2015. Shortly after this incident the Applicant took seven (7) days’ personal leave. Mr Reed later spoke to Mr Flynn and said ‘Tone it down a bit’. Neither the Applicant, Mr Flynn or Mr Gavin asked Mr Reed to do anything further in relation to this incident, therefore Mr Reed considered the matter to have been dealt with (September 2015 Incident).[76]
[76] Reed Affidavit, [48]-[57].
(i)Between 22 November 2015 and 25 November 2015 the Applicant sought to change his rostered hours with those of another Driver, Mr Hill. Mr Hill did not ever approach Mr Reed to seek to change his roster. Mr Reed was aware that Mr Hill’s child was very unwell and was watching him carefully from a welfare perspective. Mr Reed was concerned that the Applicant may have been trying to take advantage of Mr Hill’s situation.[77]
[77] Reed Affidavit, [61]-[64].
(j)On 22 November 2015 Mr Reed was in the workshop at the Depot talking to David Putton, Workshop Manager and Roger Collins, Harvest Production Manager, when the Applicant came into the workshop to speak with him. The Applicant said that Mr Hill would like to work ‘permanent dayshift’ and that he would like to work ‘permanent night shift’. Mr Reed told the Applicant that the roster was not going to be changed. This was because Mr Reed did not want someone permanently on night shift and also permanently on dayshift, as this would have made the roster very difficult to manage. To conclude the conversation Mr Reed walked out of the workshop. The Applicant went to his ute and then approached Mr Reed with some papers in his hands, which were the Applicant’s proposed roster change. Mr Reed again said that the roster was not being changed because:
It would mean the company would have to pay higher rates to drivers working permanent night shift. Working this roster would also mean the company would breach the work diary rules.[78]
[78] Reed Affidavit, [65]-[68].
(k)The Applicant continued to follow Mr Reed and talk about changing the roster. The Applicant ‘thrust the roster’ into Mr Reed’s face and said ‘This is how it is going to work’. After looking at the roster and trying to appease the Applicant, Mr Reed became frustrated and said ‘You can fuck off, the roster is not changing, and if you’re not happy working for the company, you might as well seek work elsewhere’. On 23 November 2015 the Applicant sent an email to Mr Reed again seeking to vary his rostered hours with Mr Hill. On 25 November 2015 Mr Reed sent the Applicant an email. Mr Reed did not agree to a change in the roster for the Applicant. After 25 November 2015 Mr Reed does not recall the Applicant raising with him again his request to change the roster.[79]
[79] Reed Affidavit, [69]-[74] and Annexures RR-2 and RR-3.
(l)In the week commencing 21 February 2016 Mr Reed gave the Drivers the Easter Leave Directive for the next 4 to 8 weeks. After this email was sent, the Applicant approached Mr Reed on number of occasions and indicated that it was his view that the Respondent could not refuse to grant annual leave over the Easter period. On 2 March 2016 the Applicant sent Mr Reed an email requesting annual leave on Thursday, 24 March 2016 (the day before the Good Friday public holiday) and also stating that he would be “unavailable for work” on Friday, 25 March 2016 (the Good Friday public holiday). On 2 March 2016 Mr Reed sent the Applicant an email saying that his application for annual leave was not granted. Mr Reed said:
Hi
Sorry but we need all drivers on shift for at least another 4 to 8 weeks     as the tonnages we need to shift to fill our contract are very high I have put out a notice last week giving every drive a fair warning. As it is         the last tow shifts before your rostered days of I do not think a request for you to fill your shifts as unreasonable
Cheers
(As written)[80]
[80] Reed Affidavit, [75]-[78] and Annexures RR-4 and RR-5.
(m)At the Depot on the afternoon of 4 March 2016, Mr Gavin reported to Mr Reed that on 3 March 2016, when the Applicant was driving to the Port of Portland, another Driver, Trent Croft, referred to the Applicant over the radio as a ‘fuckhead’. The Applicant had responded over the radio by saying to Mr Croft that he wished to discuss with Mr Croft the comment which Mr Croft had made about him. Mr Croft had then replied that he was sick of the Applicant’s practice of delaying the other Drivers. At about 2:30 am on 4 March 2016 the Applicant approached Mr Croft to continue the dispute that had occurred the previous day and an argument occurred, during which both Mr Croft and the Applicant swore. The argument stopped when Mr Gavin intervened. Mr Gavin did not want to make a formal report about the incident. Mr Croft also told Mr Reed about the incident. Mr Croft also did not want to make a formal complaint about the Applicant (March 2016 Incident).[81]
[81] Reed Affidavit, [79]-[81].
(n)On 10 March 2016 Mr Reed received a text message from the Applicant notifying Mr Reed that he would not be at work the next day. By about 10 March 2016 the Applicant had used most of his paid personal leave.[82]
[82] Reed Affidavit, [82] and [83] and Annexure RR-6.
(o)On 11 March 2016 Mr Reed received a text message from the Applicant notifying Mr Reed that the Applicant would be taking sick leave for seven (7) days. Mr Reed then telephoned the Applicant and had a conversation to the following effect:
[Mr Reed]       Why are you taking the sick leave?
[Applicant]     I’m not well.
[Mr Reed]       That’s a shame. You’ve had a lot of sick leave. I need   to know what’s wrong.
[Applicant]     I’m not well.
[Mr Reed]       What’s really wrong?
[Applicant]     Put it in an email or text.
The Applicant then hung up on Mr Reed.[83]
[83] Reed Affidavit, [84] and [85].
(p)On 13 March 2016 the Applicant sent an email to Mr Reed regarding his request for annual leave on 24 March 2016, where he stated ‘I do see the refusal for annual leave unreasonable […]’.[84] Mr Reed forwarded this email to Mr Noske. Later that day Mr Noske sent an email to the Applicant regarding the Applicant’s request for annual leave. Mr Reed was copied in on this email.[85]
[84] Reed Affidavit, [86] and Annexure RR-8.
[85] Reed Affidavit, [87] and Annexure RR-9.
(q)At about 8:35 am on 23 March 2016 Mr Reed sent an email to the Applicant regarding the Applicant’s request for annual leave on 24 March 2016 and also listed Mr Reed’s Performance Concerns regarding the Applicant’s work. Mr Reed was not able to discuss the Performance Concerns with the Applicant because of the ensuing events.[86]
[86] Reed Affidavit, [88] and [89] and Annexure RR-10.
(r)At about 1:00 pm on 23 March 2016 a WorkSafe Victoria inspector Paul McCoy arrived at the Depot in response to an anonymous call from a truck driver. Mr Reed produced a copy of the WorkSafe Entry Report for 23 March 2016.[87]
[87] Reed Affidavit, [90] and Annexure RR-11.
(s)At about 2:00 pm on 23 March 2016 the Applicant arrived at the Depot while Mr Reed was speaking with Mr McCoy in Mr Reed’s office. The Applicant wanted to know if Mr Reed had changed his mind about the Applicant’s request for leave over Easter. Mr Reed said ‘The answer is still no. Those shoes you’re wearing are unsafe for work. You have to go home and change your footwear for more appropriate safety boots, put some steel toed boots on’. The Applicant left the Depot and returned about 20 minutes later, accompanied by his partner Heather Wall, but without having changed his shoes. When the Applicant returned to the Depot Mr McCoy had left the office and was in the yard at the Depot. The Applicant then came into the office and said that he wanted to talk to Mr Reed about the Performance Concerns. Mr Reed said ‘I’m not going to talk to you about it now. WorkSafe is here, why don’t you go and talk to your mate’. The Applicant responded by saying ‘I am going on stress leave’. Mr Reed told him ‘You don’t have any personal leave left’. The Applicant said ‘I don’t need personal leave to take stress leave’. Mr Reed then said ‘It’s your job Anthony’. The Applicant then spent an hour with Mr McCoy and then left the Depot accompanied by Ms Wall. The Applicant and Ms Wall returned to the Depot approximately 30 to 45 minutes later and handed to Mr Reed a certificate of capacity that stated that the Applicant was unfit for work from 23 March 2016 to 6 April 2016 (23 March 2016 Certificate of Capacity). The Applicant then left the Depot without saying anything further to Mr Reed.[88]
[88] Reed Affidavit, [91]-[94], [96] and [97].
(t)From this time onwards Mr Reed regularly discussed the Applicant’s situation with Mr Noske and Mr Cameron and forwarded to Mr Cameron emails he received from the Applicant.[89]
[89] Reed Affidavit, [99].
(u)On 30 March 2016 Mr Reed sent an email to the Applicant regarding, amongst other things the Applicant’s personal leave entitlements.[90] This email stated:
[90] Reed Affidavit, [100].
Hi Anthony
In regards to Certificate of Capacity which advises that you will not be able to attend your employment from 23^rd of March to the 6^th April 2016 we would like to inform you that you currently have no personal leave entitlement balance remaining. This will mean that leave during this period will be without pay from [the Respondent].
Please let me know if there is anything we are able to do to assist you during your time of non-capacity.
To ensure you are able to return safely at full capacity, we will require a certificate from your doctor confirming your capacity to return to work before your next shift after 6^th of April can be scheduled.
Regards
Ron Reed
SWF Contract Supervisor […][91]
[91] Reed Affidavit, [100] and Annexure RR-12.
(v)On 1 April 2016 Mr Reed sent a text message to the Applicant that substantially reflected his email of 30 March 2016.[92]
[92] Reed Affidavit, [101] and Annexure RR-13.
(w)On 1 April 2016 Mr Reed received an email from the Applicant requesting that Mr Reed provide information to him in relation to the Performance Concerns. The Applicant also asked for any employment agreement that stated that he was required to undertake ‘seven (7) loads per shift’.[93]
[93] Reed Affidavit, [102] and Annexure RR-14.
(x)On 4 April 2016 Mr Reed sent an email to the Applicant in the following terms:
Anthony
We acknowledge your request for further information from the Company as outlined in your e-mail below. To not exacerbate any      work-related stress during the period of current stress leave the Company will address these items when you have received clearance      from your medical practitioner to return to work.
Please note the Company will wait for the suitable certificate of capacity to be produced before any future shifts will be rostered.
Cheers
Ron Reed
SWF Contract Supervisor […] [94]
[94] Reed Affidavit, [103] and Annexure RR-15.
(y)On 4 April 2016 Mr Reed also sent a text message to the Applicant to the same effect as the email he sent earlier that day.[95]
[95] Reed Affidavit, [104] and Annexure RR-16.
(z)On 6 April 2016 Mr Reed sent a text message to the Applicant in the following terms:
Anthony
The Company understands that the previous certificate of capacity         supplied states your incapacity to attend employment from the 23rd        March 2016 to the 6th April 2016. We wanted to remind you that we          are unable to schedule future shifts until a certificate of capacity    providing clearance to return to employment and are fit for duty is           provided.
Please provide an update when you can of your intent on when you        expect to return to work so we can plan accordingly.
Regards
Ron Reed[96]
[96] Reed Affidavit, [105] and Annexure RR-17.
Later on 6 April 2016 the Applicant sent a text message to Mr Reed advising                    that his doctor had given him another two weeks leave and that he would email                 the required forms.[97]
[97] Reed Affidavit, [106] and Annexure RR-18.
(aa)On 9 April 2016 Mr Reed sent the Applicant an email asking for a letter from the Applicant’s doctor stating that the doctor was comfortable with the Applicant participating in work related discussions whilst on personal leave for work related stress. The email also requested permission for the Respondent to speak with the Applicant’s treating practitioner to assist with his recovery.[98]
[98] Reed Affidavit, [107] and Annexure RR-19.
(bb)On 13 April 2016 the Applicant sent an email to Mr Reed attaching a letter dated 11 April 2016 from his medical practitioner, confirming that the doctor was ‘comfortable with the Applicant discussing any issues’ the Applicant was having relating to his employment with his employer. The Applicant also sought confirmation that the Respondent had sent the workers injury claim form to WorkSafe/WorkCover and when it was sent.[99]
[99] Reed Affidavit, [108] and Annexure RR-20.
(cc)On 14 April 2016 Mr Reed sent an email to the Applicant providing him with information about how to complete the employee claim form on the WorkSafe website, providing a link to the relevant claim form and explaining the procedure the Respondent would follow to assist the Applicant in processing and supplying WorkSafe with relevant information. The email concluded with ‘In order to assist with resolving any issues internally, [Mr Noske] has confirmed that he can be present for any meeting you may [wish] to request’.[100]
[100] Reed Affidavit, [109] and Annexure RR-21.
(dd)On 18 April 2016 Mr Reed received an email from the Applicant again requesting information in relation to the Performance Concerns and raising additional issues. The Applicant required a response to this email by the following day, 19 April 2016.[101]
[101] Reed Affidavit, [110] and Annexure RR-22.
(ee)On 20 April 2016 at 12:28 pm Mr Reed received an email from the Applicant stating that he had still not received any response to the issues he had raised or received any evidence in relation to the Performance Concerns. The Applicant also sought confirmation that the Respondent had sent the Workers Injury Claim Form. The Applicant required a response from Mr Reed by midday the following day, 21 April 2016.[102]
[102] Reed Affidavit, [111] and Annexure RR-23.
(ff)On 20 April 2016 at 5:01 pm Mr Reed received another email from the Applicant attaching a certificate of capacity (20 April 2016 Certificate of Capacity). The email stated:
Ron
Attached is my Certificate of Capacity - Have a capacity for pre-injury employment from today Wed 20/04/16
If you have any questions relating to the certificate contact Dr Mudzi at Seaport Medical Centre.
I will be available for my regular shifts at 2:30 pm tomorrow, Thursday 21/04/16
Regards
Anthony[103]
[103] Reed Affidavit, [112] and Annexure RR-24.
(gg)Mr Reed also received a text message from the Applicant on 20 April 2016 at 5:01 pm regarding the Applicant’s email sent that evening, stating ‘I have sent you an email containing my Dr’s clearance to return to work tomorrow Thursday 21/04/16’.[104]
[104] Reed Affidavit, [113] and Annexure RR-25.
(hh)On 20 April 2016 at 6:22 pm Mr Reed sent a text message to the Applicant stating:
Anthony, I acknowledge receipt of your message via SMS regarding your clearance to return to work. At short notice the roster has been filled for tomorrow, resulting in no availability for tomorrow. We will review this and your certificate of capacity and respond shortly.
Regards Ron.[105]
[105] Reed Affidavit, [114] and Annexure RR-26.
(ii)Mr Reed did not roster the Applicant to work on 21 April 2016 because the 20 April 2016 Certificate of Capacity indicated that the Applicant’s mental health function was still affected, and in particular the Applicant’s attention/concentration, memory and judgement were still affected (Mental Health Impact). Further, the Applicant had given less than 24 hours’ notice, that he wished to be put back into the Drivers’ roster. The Drivers are rostered weeks in advance, therefore the Applicant’s request could not have been accommodated even without the concerns regarding the Mental Health Impact.[106]
[106] Reed Affidavit, [115].
(jj)At 6:40 pm on 20 April 2016 Mr Reed received a text message from the Applicant stating ‘I’m also still waiting for a response on the issues I raised and the evidence to your allegations’. At 6:43 pm Mr Reed received another text message from the Applicant stating ‘Also conformation (sic) Kelly Logistics have sent the Workers Injury Claim Form’.[107]
[107] Reed Affidavit, [116] and Annexure RR-27.
(kk)On 25 April 2016 at 11:06 pm the Applicant sent an email to Mr Reed, copied also to Mr Noske and Mr Cameron (Applicant’s 25 April 2016 Email), in the following terms:
[…]
Subject: Fw: Resignation letter
Ron
Due to lack of communication by [Respondent] and not been forth coming on evidence to allegations by yourself, and no effort to resolve other issued previously mentioned, I feel my position has become unworkable and therefore find no other alternative but to forward my resignation affective immediately.
Regards
Anthony[108]
(As written)
(ll)On 5 May 2016 as a result of a complaint to WorkSafe Victoria, Inspector Kevin Patrick Ford attended the Depot. Mr Reed produced a copy of the WorkSafe Victoria Entry Report for 5 May 2016.[109]
(mm)After the Applicant resigned the Applicant sent an email to SWF making allegations about the Respondent’s fatigue management process. As a result SWF audited the Respondent by sending compliance personnel to the Depot to review its processes and documentation. SWF was satisfied that the Respondent was complying with its obligations.[110]
[108] Reed Affidavit, [117] and Annexure RR-28.
[109] Reed Affidavit, [118] and Annexure RR-29.
[110] Reed Affidavit, [119].

Mr Reed was cross-examined by the Applicant. Mr Reed’s evidence corroborated his affidavit. There was nothing in the way that Mr Reed gave his evidence to suggest to the Court that he was being untruthful. The Court considers Mr Reed a credible witness.
Donald Cameron
Mr Cameron gave evidence in chief by way of the Cameron Affidavit. Mr Cameron was not required by the Applicant for cross-examination. His evidence can be summarised as follows:
(a)Mr Cameron is employed by the Respondent as Administration Manager and his primary work location is at the Respondent’s premises at 295 Forest Road, Lara in the State of Victoria.[111] Mr Cameron has been employed by the Respondent since October 2015. Immediately prior to being employed by the Respondent, Mr Cameron was employed by Nosca Logistics Pty Ltd (ACN 150 424 561) (Nosca Logistics). Prior to working for Nosca Logistics Mr Cameron worked for Whitpark Pty Ltd (ACN 007 242 515), a company that provided administration services to companies, including Nosca Logistics and Nosca Company. After the Respondent purchased Nosca Company’s business on 7 October 2015, Mr Cameron’s employment was transferred to the Respondent.[112]
[111] Cameron Affidavit, [2] and [3].
[112] Cameron Affidavit, [5]-[8].
(b)Mr Cameron is responsible for the Respondent’s compliance, including administrative management of the Respondent’s accreditation in the NHVAS in the modules of Mass Management, Maintenance Management, and Basic Fatigue Management. Mr Cameron’s role also includes   communications, IT, general administration services and human resources support to managers within the Respondent’s business.[113]
[113] Cameron Affidavit, [9].
(c)From about 21 October 2012 the Respondent has operated the Rotating Roster at the Depot. All Drivers are rostered to work the Rotating Roster. Each Driver, including the Applicant, had a target of completing seven (7) trips in a shift, including any time for a break. At the end of each shift that the Applicant worked, the Applicant signed a Daily Work Sheet. Mr Cameron produced the Applicant’s Daily Work Sheets for the period of the Applicant’s employment with the Respondent.[114]
[114] Cameron Affidavit, [16]-[19] and Annexure BC-1.
(d)Mr Cameron corroborated Mr Noske’s evidence in relation to the Drivers’ Remuneration Arrangements and the Applicant’s remuneration. Mr Cameron produced the Applicant’s pay advice summary for the period of the Applicant’s employment with the Respondent (Applicant’s Pay Advice Summary).[115]
[115] Cameron Affidavit, [20] and [21] and Annexure BC-2.
(e)Prior to the Applicant’s resignation from his employment with the Respondent, Mr Cameron became aware from discussions with Mr Reed and Mr Noske of their growing concerns regarding the Applicant’s work performance. From these discussions, Mr Cameron became aware that Mr Reed and Mr Noske’s concerns regarding the Applicant’s performance arose from:
(i)The monitoring of the Respondent’s GPS System records, which Mr Reed and Mr Noske said showed that the Applicant was routinely taking long rest breaks, which he was not recording on the Applicant’s Daily Work Sheets;
(ii)Complaints from other Drivers that the Applicant was preventing them from completing seven (7) deliveries per shift. These complaints, included the Applicant stopping his vehicle in the queue at the Myamyn Mill or at the Myamym Mill weighbridge; and
(iii)The Applicant’s conduct causing other employees of the Respondent, including other Drivers, to become frustrated with the Applicant.[116]
[116] Cameron Affidavit, [27] and [28].
(f)At that time, Mr Cameron became aware from discussions with Mr Reed that the Applicant made a worker’s compensation claim in March 2016 and that the Applicant had been involved in the September 2015 Incident with Mr Flynn and Mr Gavin.[117]
[117] Cameron Affidavit, [29].
(g)On or about 23 November 2015 Mr Cameron became aware of the Applicant’s proposal to change his roster with Mr Hill. Mr Reed forwarded to Mr Cameron the email he had received from the Applicant, dated 23 November 2015.[118] After Mr Cameron received this email, Mr Reed told Mr Cameron that on 22 November 2015 Mr Reed was in the workshop at the Depot, when the Applicant approached him holding a roster that the Applicant had created that reflected his proposed roster change. A conversation ensued, which ended when Mr Reed swore at the Applicant and walked away from him. Mr Cameron agreed with Mr Reed, that changing the roster for one Driver would be difficult to accommodate, given the nature of the Rotating Roster and the impact on other Drivers. Also, having a Driver working permanent nightshift would create risks from a fatigue management perspective.[119]
[118] Cameron Affidavit, [30] and Annexure BC-3.
[119] Cameron Affidavit, [31] and [32].
(h)Mr Cameron became aware from discussions with Mr Reed which occurred in March 2016, that the Applicant had become involved in the March 2016 Incident with Mr Croft and Mr Gavin.[120]
[120] Cameron Affidavit, [33].
(i)Mr Cameron became aware from discussions with Mr Reed, which occurred in late March 2016, that after Mr Reed sent the Easter Leave Directive to the Drivers, the Applicant, on 2 March 2016, requested annual leave on Thursday 24 March 2016 and stated that he would be unavailable to work on 25 March 2015 (the Good Friday public holiday). Mr Reed denied the Applicant’s request for leave and stated that the Applicant was to work his rostered shift on Thursday, 24 March 2016.[121]
[121] Cameron Affidavit, [34]-[36].
(j)On 23 March 2016 Mr Reed sent an email to the Applicant confirming that the Applicant’s request for annual leave was denied. The email also raised the Performance Concerns. Mr Reed forwarded this email to Mr Cameron on 30 March 2016.[122]
[122] Cameron Affidavit, [42] and [43] and Annexure BC-4.
(k)On about 30 March 2016 Mr Reed telephoned Mr Cameron and told him that on the afternoon of 23 March 2016:
(i)A WorkSafe Victoria Inspector attended the Depot in response to an anonymous call from a truck driver;
(ii)While the Worksafe Victoria Inspector was at the Depot, the Applicant arrived. Mr Reed and the Applicant had a conversation during which Mr Reed confirmed that he was not changing his mind about the Applicant’s request for annual leave. The Applicant          then left the Depot;
(iii)The Applicant returned to the Depot about 20 minutes later accompanied by Ms Wall;
(iv)The Applicant and Ms Wall went into Mr Reed’s office and the Applicant told Mr Reed that he was going to take stress leave;
(v)The Applicant and Ms Wall spent about an hour with the Worksafe Inspector and then left the Depot; and
(vi)The Applicant returned to the Deport about 45 minutes later and handed to Mr Reed the 23 March 2016 Certificate of Capacity.[123]
[123] Cameron Affidavit, [44].
(l)On 30 March 2016 Mr Reed sent an email to the Applicant regarding the 23 March 2016 Certificate of Capacity. Mr Cameron assisted Mr Reed in the preparation of this email.[124]
[124] Cameron Affidavit, [45] and Annexure BC-5.
(m)On 1 April 2016 the Applicant sent an email to Mr Reed requesting information regarding the Performance Concerns and Mr Reed forwarded that email to Mr Cameron that day.[125]
[125] Cameron Affidavit, [46] and Annexure BC-6.
(n)On about 1 April 2016 Mr Cameron had a discussion with the Respondent’s WorkCover agent concerning the Applicant, and had been advised that as the Applicant had indicated that he was going to take stress leave, it would be prudent not to exacerbate that stress by discussing work related issues with him. On about 4 April 2016 Mr Cameron discussed the WorkCover agent’s advice with Mr Reed. On 4 April 2016 Mr Reed sent an email to the Applicant saying that the Respondent did not want to exacerbate the Applicant’s work related stress, and would address the concerns when the Applicant returned to work. Mr Cameron discussed the content of the email with Mr Reed and assisted him with preparing the email.[126]
[126] Cameron Affidavit, [47]-[49].
(o)On 6 April 2016 the Applicant provided a further certificate of capacity stating that he was unfit for work from 6 April 2016 to 20 April 2016 (6 April 2016 Certificate of Capacity).[127]
[127] Cameron Affidavit, [50].
(p)On 9 April 2016 Mr Reed sent an email to the Applicant asking the Applicant to arrange for a letter from his medical practitioner, stating that the Applicant could engage in work related discussions whilst he was on personal leave due to work-related stress. Mr Cameron discussed the content of this email with Mr Reed and assisted him to prepare it. On 13 April 2016 the Applicant sent an email to Mr Reed attaching a letter dated 11 April 2016 from his medical practitioner, which stated that the Applicant could engage in work-related discussions. Mr Reed forwarded the Applicant’s email to Mr Cameron on 13 April 2016.[128]
[128] Cameron Affidavit, [51] and [52] and Annexure BC-7.
(q)On 18 April 2016 the Respondent received the Applicant’s workers’ injury claim form.
(r)On 20 April 2016 at 12:28 pm the Applicant sent an email to Mr Reed (copied to Mr Noske), which Mr Reed forwarded to Mr Cameron at 1:08 pm that day. At 4:58 pm on 20 April 2016 the Applicant sent another email to Mr Reed (copied to Mr Cameron) attaching the 20 April Certificate of Capacity.[129]
[129] Cameron Affidavit, [54] and [55] and Annexures BC-8 and BC-8.
(s)On 21 April 2016 Mr Cameron sent an email to the Applicant regarding, amongst other things the Applicant’s workers compensation claim, which said:
Anthony
As requested please note that we can confirm the required forms have been lodged with our Worksafe agent today.
Further to this we have received communication from our customer [SWF] advising that you have made contact with them yesterday regarding issues you have with the [Respondent]. Please note that we are planning on addressing your queries via the appropriate channels and via the work safe process that you have indicated you wish to use.
Now that the required documentation has been lodged we would expect to receive confirmation on this case being allocated to an agent that will enable us to work towards a resolution.
Regards
Ben Cameron[130]
[130] Cameron Affidavit, [56] and Annexure BC-10.
(As written)
(t)Mr Cameron and Mr Reed discussed the 20 April 2016 Certificate of Capacity, and in particular whether the Applicant was fit for work given the Mental Health Impact. Both Mr Cameron and Mr Reed were both concerned about the Respondent’s risk, as the employer operating heavy vehicles on public roads, and also the risk to employees and the public if the Applicant was not fit for duty. Mr Cameron and Mr Reed decided that it would not be safe to allow the Applicant to drive the next day and that they needed the advice of the Respondent’s WorkCover agent. In any event, the Applicant had given less than 24 hours’ notice that he wished to be put back into the Drivers’ roster. As Drivers are rostered weeks in advance, the Applicant’s request could not have been accommodated at such short notice.[131]
[131] Cameron Affidavit, [57]-[60].
(u)On 22 April 2016 at 10:44 am, Mr Cameron sent the Applicant an email (copied to Mr Reed and Mr Noske) in relation to the 20 April 2016 Certificate of Capacity, which said:
Anthony
A further update regarding the certificate of capacity provided, we are currently reviewing this with our Work Safe insurer who have advised they will contact your treating Doctor to clarify your capacity further before we arrange your return to work.
We will continue to keep you updated as this progresses.
Regards
Ben Cameron[132]
(v)On 25 April 2016 Mr Reed received the Applicant’s 25 April 2016 Email, giving notice of the Applicant’s resignation. Mr Cameron was copied in on that email.[133]
(w)The Rotating Roster was introduced to meet the needs of the SWF Contract, to ensure compliance with fatigue management laws and to take some pressure off the Drivers.[134]
(x)The Respondent is subject to an audit by the NHVR every two years, as was Noske Company. Neither the Respondent, nor Noske Company, have ever had an adverse result from one of these audits.[135]
[132] Cameron Affidavit, [61] and Annexure BC-11.
[133] Cameron Affidavit, [62].
[134] Cameron Affidavit, [68].
[135] Cameron Affidavit, [74].
The Applicant made no submissions as to the weight to be afforded to Mr Cameron’s affidavit evidence. In those circumstances, the Court accepts Mr Cameron’s evidence.
CONSIDERATION
A. ALLEGED CONTRAVENTIONS OF SECTION 45 OF THE FW ACT
The Amended Statement of Claim alleges that the Respondent failed to pay the Applicant in accordance with the RTD Award, and thereby contravened s.45 of the FW Act.
What Hours Did the Applicant Work?
The Applicant pleads that he worked set 12 hour shifts.[136] The Respondent denies this allegation and pleads that the Applicant worked pursuant to the Rotating Roster.[137] The evidence from the Respondent is that the Applicant worked a maximum of 12 hours per shift, with the actual shift length varying from day to day. Each shift comprised 7.6 ordinary hours and up to 4.4 hours of overtime.[138] The Applicant’s actual hours of work are as set out in the Applicant’s Daily Work Sheets.[139] The Applicant’s Daily Work Sheets show that the Applicant’s actual shift length varied from day to day, and that many shifts were of less than 12 hours duration. When cross-examined the Applicant accepted that he did not work a 12 hour shift each and every day.[140]
[136] Amended Statement of Claim, [11].
[137] Defence, [11].
[138] Noske Affidavit, [25]; Respondent’s Outline of Submissions, 9.10.20, [8].
[139] Cameron Affidavit, [19] and Annexure BC-1.
[140] Transcript (7.10.20) P30:L23-28.
I therefore find that the Applicant’s shifts were a maximum of 12 hours, that the shifts were comprised of 7.6 hours of ordinary hours and up to 4.4 hours of overtime and that the Applicant’s actual hours of work are as set out in the Applicant’s Daily Work Sheets.
Did the Applicant Work Day Shifts or Night Shifts within the Meaning of cll.24.1(b) and (c) of the RTD Award?
The Applicant pleads that he worked afternoon, day and night shifts within the meaning of cll.24.1(a) to (c) of the RTD Award.[141] The Respondent admits that the Applicant worked afternoon shifts within the meaning of cl.24.1(a) of the RTD Award.[142]. The Respondent however denies that the Applicant worked day or night shifts within the meaning of cll.24.1(b) and (c) of the RTD Award.[143]
[141] Amended Statement of Claim, [12(a)-(c)].
[142] Defence, [12(a)].
[143] Defence, [12(b) and (c)].
Day, afternoon and night shifts were defined in the RTD Award as:
24.1     Definitions
For the purposes of this clause:
(a)       afternoon shift means a shift finishing after 6.30 pm but not later than    12.30 am.
(b)       day shift means a shift which commences at 5.30 am or later, but         finishes at or before 6.30 pm;
(c)night shift means a shift which finishes after 12.30 am and at or before 8.30 am.
In relation to day shifts as defined in cl.24.1(b) of the RTD Award, the AM Roster commenced at 2:30 am. Therefore the AM Roster could not be a day shift within the meaning of cl.24.1(b), because it did not commence at 5:30 am or later. The PM Roster commenced at 2:30 pm but finished after 6:30 pm. Therefore the PM Roster could not be a day shift within the meaning of cl.24.1(b), because it did not finish at or before 6:30 pm.
In relation night shifts as defined in cl.24.1(c) of the RTD Award, the AM Roster did not finish at or before 8:30 am, because its ordinary hours’ component finished at 9:06 am (and its overtime component finished anywhere up to 2:30 pm). Therefore the AM Roster could not be a night shift within the meaning of cl.24.1(c). The PM Roster did not finish until after 12:30 pm, because its ordinary hours’ component finished at 9:06 am. Therefore the PM Roster could not be a night shift within the meaning of cl.24.1(c).
The shift definition provisions of the RTD Award use only the term ‘shift’. However cl.24 read as a whole makes it clear that the term ‘shift’ did not include any overtime hours. This is because: cl.24.2 created a distinction between shift work hours and overtime; cl.24.3 continued the distinction by providing payment for ordinary hours; cl.24.5 refers to payment for a different class of work, being shift work hours and has its own payment schedule, which does not refer to the time of day at which the hours are being worked; and pursuant to cl.24.2 a shift must take its character when it is rostered – and at the time of rostering only the ordinary hours were guaranteed to be worked, the overtime was variable.
I therefore find that the AM Roster was not a ‘day shift’, ‘afternoon shift’ or a ‘night shift’ within the meaning of cll.24.1(a), (b) or (c) of the RTD Award. I find that the PM Roster was an ‘afternoon shift’ within the meaning of cl.24.1(a) of the RTD Award.
Did the Applicant Work Non-Continuous Afternoon or Night Shifts?
The Applicant pleads that he worked non-continuous afternoon or night shifts within the meaning of cl.24.10 of the RTD Award.[144] The Respondent admits that the Applicant worked non-continuous afternoon shifts (which did not continue for at least five consecutive nights) from time to time, but denies that the Applicant worked non-continuous night shifts (which did not continue for at least five consecutive nights), within the meaning of cl.24.10 of the RTD Award.[145]
[144] Amended Statement of Claim, [12(g)].
[145] Defence, [12(g)].
Clause 24.10 of the RTD Award provided:
Rate for non continuous afternoon or night shift
Shift workers who work on any afternoon or night shift which does not continue for at least five consecutive afternoons or nights must be paid at the rate of time and a half for the first three hours and double time thereafter for each shift.
Clause 24.10 does not require that there be five consecutive night shifts, or alternatively five consecutive afternoon shifts. It requires that there be five consecutive shifts, any one of which can be an afternoon shift or a night shift, provided that there are five consecutive shifts of one or the other.
The Applicant’s Rotating Roster had six consecutive shifts, comprising three shifts on the AM Roster, followed by three shifts on the PM Roster. I therefore find that the Applicant’s Rotating Roster did not have non-continuous afternoon or night shifts within the meaning of cl.24.10 of the RTD Award.
Was the Applicant paid an amount of $150 per week in addition to his base hourly rate?
The Applicant pleads that he was paid at the Hourly Rate.[146] The Respondent admits that the Applicant was paid at the Hourly Rate, but says that the Applicant was also paid the Additional Payment. The Respondent pleads further that the Additional Payment:
(a)Was paid pro rata based on the number of shifts worked in the week;
(b)Was always paid to the Applicant during his period of employment by the Respondent;
(c)Was an aggregated rate which took into account other separately identifiable amounts payable under the RTD Award, including allowances (including meal allowances) and penalty rates;
(d)Was paid to Drivers, including the Applicant, when they were on annual leave, personal leave and when they were not at work due to a public holiday; and
(e)Was paid to Drivers, including the Applicant, for shifts when they were stood down, from the time when they were stood down.[147]
[146] Amended Statement of Claim, [13].
[147] Defence, [13(a)-(e)].
The Additional Payment appears on the Applicant’s Pay Advice Summary which was produced by Mr Cameron.[148] I therefore find that the Applicant was paid the Additional Payment in addition to the Hourly Rate, as set out in the Applicant’s Pay Advice Summary.
[148] Cameron Affidavit, [21] and Annexure BC-2.
What was the correct hourly rate pursuant to the RTD Award?

The Applicant pleads that pursuant to cll.15.2 and 24 of the RTD Award he should have been paid an hourly rate of $20.59.[149] The Respondent pleads that the correct minimum hourly rate pursuant to the RTD Award was $20.69.[150]
[149] Amended Statement of Claim, [14] [Item 1 of the Table].
[150] Defence, [14(a)].
I have reviewed the RTD Award and I find that the correct minimum hourly rate pursuant to the RTD Award was $20.69.
Is the Respondent entitled to set off the Hourly Rate and the Additional Payment against the Applicant’s entitlements under the RTD Award?
The Applicant pleads that he should have been paid at hourly rates pursuant to the RTD Award for an afternoon shift penalty, night shift penalty, Saturday shiftwork penalty, Sunday shiftwork penalty, public holiday shiftwork penalty and non-continuous shiftwork penalties and overtime.[151]
[151] Amended Statement of Claim, [14].
The Respondent pleads that the Applicant was paid the Hourly Rate and the Additional Payment in place of the hourly rates claimed by the Applicant pursuant to the RTD Award.[152]
[152] Defence, [14].
The relevant legal principles for assessing what a flat rate is intended to compensate for have been succinctly summarised in the Respondent’s Outline of Submissions.[153] I adopt these submissions with amendment, as follows:
[153] Respondent’s Outline of Submissions, 9.10.20, [38] and [39].
(a)The payment of an amount as wages for hours worked in a period can be relied on by the employer in satisfaction of an award obligation to pay wages for that period whether in relation to wages for ordinary time, over time, weekend penalty rates, holidays worked or any other like monetary entitlement under the award.
(b)However, if a payment is made expressly or impliedly to cover a particular obligation (whether for ordinary time, over time, weekend penalty rates, fares, clothing or any other entitlement whether arising under the award or pursuant to the contract of employment), the payment cannot be claimed as a set off against monies payable to cover some other incident of employment.
(c)Although the term “set off’ is commonly used in this context, it is strictly speaking a question of whether certain payments made by the employer can be regarded as having satisfied its obligations under the award or enterprise agreement.[154]
(d)Where the parties agree that a sum or sums of money would be paid for specific purposes, over and above, or extraneous to, award requirements, such contractual provisions will prevent the employer from relying on payments made pursuant to them to satisfy any “award entitlements arising outside the agreed purpose of the payments”.[155]
(e)If an employer (as debtor) designated or appropriated a payment to the employee (as creditor) to satisfy a particular debt or liability, the employer could not later resile from that designation or appropriation in order to claim that the payment should be treated as satisfying a different debt or liability due to the employee under an award. This is an application of the principle that, as or before the time of making it, a debtor can appropriate a payment to the discharge of a particular liability, but if the debtor does not do so, the creditor is free to appropriate payment as the creditor sees fit. This principle was enunciated in Cory Brothers & Company Limited v The Owners of the Turkish Steamship “Mecca”[1897] AC 286, where Lord Macnaghten said:
When a debtor is making a payment to his creditor he may appropriate the money as he pleases, and the creditor must apply it accordingly. If the debtor does not make any appropriation at the time when he makes the payment the right of application devolves on the creditor.[156]
(Emphasis added)

[154] Poulos v Waltons Stores (Interstate) Ltd [1986] FCA 159; (186) 10 FCR 429 at 453; James Turner Roofing Pty Ltd WASCA 28 (2003) 132 IR 122 at [18].
[155] Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99, [99]; (2015) 240 FCR 578 at 603 [99].
[156] Cory Brothers & Company Limited v The Owners of the Turkish Steamship “Mecca”[1897] AC 286 at 293.
Further in Moree Plains Shire Council v Goater [2016] FCAFC 135 the Full Federal Court said:
However, a mere intention to appropriate a payment that the debtor does not communicate to the creditor is not sufficient, and the creditor is free to apply the money, when received, as it chooses: Leeson v Leeson[1936] 2 KB 156 at 161 per Greer LJ, 162-163 per Greene LJ, with both of whom Talbot J agreed. Nonetheless, in Knysh v Corrales Pty Ltd (1989) 15 ACLR 629 at 633-634, Morling, Pincus and Lee JJ explained that the debtor’s intention to appropriate a payment can be inferred from all of the circumstances, even though the debtor does not expressly state that intention at the time of making the payment; see too Caltabiano v Electoral Commission of Queensland (No 1)[2009] QCA 182; [2010] 1 Qd R 100 at 114-116 [28]- [38] per Muir JA, 130-132 [107]-[110] per Fraser JA, 135 [129]-[130] per Fryberg J.[157]
[157] Moree Plains Shire Council v Goater [2016] FCAFC 135, [59].
The Employment Contract provided for the Applicant’s remuneration as follows:
Your remuneration rate is $25 per hour. A bonus of $150 per week may be included in your salary if compliance requirements are met.[158]
[158] Noske Affidavit, [43] and Annexure TN-4.
The Respondent submits that the Hourly Rate was paid to the Applicant at all times during his employment in satisfaction of all entitlements that accrued to him for working his regular Rotating Roster. That regular Rotating Roster included ordinary hours, afternoon shifts, Saturdays, Sundays, public holidays, meal allowances, public holidays, shiftwork and shiftwork overtime.[159]
[159] Respondent’s Outline of Submissions, 9.10.20, [40].
In relation to the Additional Payment, the Respondent submits that despite the contractual term ‘A bonus of $150 per week may be included in your salary if compliance requirements are met’, the Additional Payment was paid every week for hours actually worked, pro rata on a shift by shift basis. The Applicant was not subject to any KPIs being set and the Additional Payment was paid without regard to whether or not any compliance requirements were met. The Respondent submits that the discretion in the Employment Contract was exercised by the Respondent to allocate the Additional Payment to the performance of work generally and it was not appropriated to meeting compliance requirements. Alternatively, the Additional Payment was to be “included in” the Applicant’s salary, rather than paid in addition to his salary. It is submitted that the Additional Payment was paid for the Applicant’s performance of work. It is therefore contended that the Additional Payment was not a bonus and was not conditional on meeting any performance requirements. It was appropriated by the Respondent to the Applicant’s regular hours of work. It was an ex-gratia payment, paid for the Applicant performing work and can therefore be set off by the Respondent against any liability pursuant to the RTD Award.[160]
[160] Respondent’s Outline of Submissions, 9.10.20, [41]-[42].
The evidence of Mr Noske[161] and Mr Cameron[162] in relation to the Respondent’s remuneration pursuant to the Drivers’ Remuneration Arrangements; Mr Reed’s evidence;[163] and the Applicant’s Pay Advice Summary; support the submissions made by the Respondent.
[161] Noske Affidavit, [35]-[40].
[162] Cameron Affidavit, [20] and [21].
[163] Reed Affidavit, [30] and [31].
Therefore, taking into account the relevant legal principles summarised above and the evidence referred to in the preceding paragraph, I accept the submissions made by the Respondent and find that the Respondent:
(a)Is entitled to take into account the full Hourly Rate in connection with the Applicant’s entitlements under the RTD Award; and
(b)Is entitled to take into account the ex gratia Additional Payment in connection with the Applicant’s entitlements under the RTD Award and set off the Additional Payment against any liability to the Respondent pursuant to the RTD Award.
Has the Respondent underpaid the Applicant?
The Applicant pleads that the Respondent contravened s.45 of the FW Act as a result of contravening cll.15 and 24 of the RTD Award by underpaying his hourly rates of pay. The Amended Statement of Claim does not particularise what quantum of underpayment is alleged.[164] The Respondent denies this allegation and pleads that by payment of the Hourly Rate and the Additional Payment, the Applicant was paid more under the Respondent’s remuneration arrangements as set out in paragraph 13 of the Defence, than the Applicant would have been paid in accordance with the RTD Award for working the same period. The Defence does not particularise what amount it is alleged that the Applicant would have been paid in accordance with the RTD Award.[165]
[164] Amended Statement of Claim, [15] and [16].
[165] Defence, [15] and [16].
The Applicant relied on the Applicant’s Calculations.[166] The Applicant’s Calculations indicate that the Applicant calculated that he had been underpaid $41,335.51 for employment between 7 October 2015 and 25 April 2016, a period of 29 weeks. The Applicant gave evidence that he was paid $36,016, that he believed that he should have been paid $77,000 and confirmed that his claim was for underpayment of $41,335.51.[167]
[166] Exhibit A1.
[167] Transcript (7.10.20) P13:L7-37.
The obvious problem with the Applicant’s Calculations is that they do not disclose the methodology the Applicant has adopted to calculate the claimed underpayment amount of $41,335.51. Further, the Applicant’s Calculations appear to assume that:
(a)The Applicant worked 12 hours on every shift, when he did not. The Applicant’s Daily Work Sheets indicate that the Applicant regularly worked less than a 12 hour shift. When cross-examined the Applicant accepted that he did not work a 12 hour shift every day.[168] Therefore the Applicant’s Calculations are not based on the hours that the Applicant actually worked.
(b)The Applicant did not have periods of time off for annual leave, personal leave and workers’ compensation. The Applicant’s Pay Advice Summary demonstrates that the Applicant took such periods off.
(c)The Applicant worked non-continuous afternoon shifts or night shifts within the meaning of cl.24.10 of the RTD Award. I have previously determined that the Respondent’s Rotating Roster did not have non-continuous afternoon or night shifts within cl.24.10 of the RTD Award.
(d)The Applicant worked night shifts within the meaning of cl.24.1(c) of the RTD Award. I have previously determined that the AM Roster was not a night shift within cl. 24.1(c) of the RTD Award, and that the PM Roster was an afternoon shift within the meaning of cl.24.1(a) of the RTD Award.
(e)The Applicant was entitled to additional payments for meal payments. I have previously determined that the Applicant is not entitled to such additional payments in paragraph [57] above.
[168] Transcript (7.10.20) P30:L23-25.
I note that on the morning of 9 October 2020 the Applicant emailed two further documents titled ‘Quantum of Under Payment of Wages and Unfair Dismissal’ to my Associate’s Chambers prior to the re-commencement of the hearing.[169] Each of these documents contained the same deficiencies as the Applicant’s Calculations. Neither document was admitted into evidence.
[169] Transcript (9.10.20) P11:L22-P12:L37.
The Respondent’s Calculations[170] comprised of spread sheets which include two tables: one which sets out how the Applicant was paid in accordance with the Drivers’ Remuneration Arrangements (Drivers’ Remuneration Arrangements Table); and another which sets out the Respondent’s assessment of the Applicant’s remuneration entitlements pursuant to the RTD Award (RTD Award Table). The Driver’s Remuneration Arrangements Table and the RTD Award Table are situated side by side on the spread sheets. Each of the tables set out each day of the week from 10 October 2015 to 19 June 2016. The tables disclose the number of hours that the Applicant worked each day.
[170] Exhibit R3.
The Drivers’ Remuneration Arrangements Table records: whether the Applicant was working the AM Roster or the PM Roster; the time the Applicant commenced and concluded work; annual leave; public holidays; personal leave; stand downs; the daily pro-rata payment of the Additional Payment; the total amount payable for each days’ work; the weekly total; superannuation paid each week; and the total including superannuation. The assumptions for the calculations in the Drivers’ Remuneration Arrangements Table are set out on the spread sheets.
The RTD Award Table records: the hours worked of ordinary time and the relevant rates; the afternoon shift loading and the relevant rates; public holidays; personal leave; stand downs; meal money and the relevant rates; Saturday and Sunday overtime and the relevant rates; the weekly total; superannuation each week; and the total including superannuation. The assumptions for the RTD Award Table calculations are set out on the spread sheets. The Applicant did not challenge any of the assumptions made in the RTD Award Table.
The Respondent’s Calculations summarise that the gross amount of wages that the Applicant was paid during the Applicant’s employment with the Respondent was $32,290.62 and that the total amount, including superannuation of $2,278.04, was $34,568.66. The Respondent’s Calculations summarise that the gross amount that the Applicant would have been entitled to pursuant to the RTD Award was $30,688.84. Including superannuation of $1,939.24, the total amount that the Applicant would have been entitled to pursuant to the RTD Award was $32,628.08.
The Respondent’s Calculations calculate the difference between the total amount due to the Applicant, including superannuation, pursuant to the Drivers’ Remuneration Arrangements Table to be $34,568.66. The Respondent’s Calculations calculate the difference between the total amount due to the Applicant including superannuation, pursuant to the RTD Award Table to be $32,628.08. The Respondent’s Calculations therefore calculate that there is an overpayment of $1,940.58 between the Driver’ Remuneration Arrangements Award Table and the RTD Award Table.
I therefore find that by reason of the Respondent’s Calculations the Applicant was not underpaid, because the amount paid to the Applicant by the Respondent was greater than the amount that the Applicant was entitled to pursuant to the RTD Award.
Further, the Applicant’s Calculations do not accurately calculate the Applicant’s claimed entitlements. I am satisfied that the Applicant has failed to prove any underpayment by the Respondent by reason of the deficiencies in the Applicant’s Calculations discussed above.
Therefore I find that the Applicant has failed to prove that the Respondent contravened cll.15 and 24 of the RTD Award and s.45 of the FW Act, as alleged in paragraphs 14 to 16 of the Amended Statement of Claim.
Did the Applicant receive paid meal breaks pursuant to cl.24.9 of the RTD Award?
The Applicant pleads that the Respondent contravened cl.24.9 of the RTD Award and thereby s.45 of the FW Act by failing to provide a paid meal break of 20 minutes per shift.[171] The Respondent admits that the Applicant was entitled to a paid meal break in accordance with cl.24.9 of the RTD Award when he was working a shift to which cl.24.9 applied, but otherwise denies the allegations.[172] Further the Respondent pleads that:
(a)The AM Roster and the PM Roster were each of 12 hours duration;
(b)Drivers were required and expected to manage their time during each shift to take the necessary breaks to manage their fatigue;
(c)The Applicant was paid for all of the 12 hours of the shift including for any time on a break;
(d)The Applicant was able to, required to, and did, take rest and meal breaks during each 12 hour shift and as a result was paid for all his rest and meal breaks; and
(e)At the end of each shift that the Applicant worked the Applicant signed the Applicant’s Daily Work Sheets stating that he had taken the requisite breaks during the shift.[173]
[171] Amended Statement of Claim, [17]-[19]. It is noted that [17] pleads cl.24.94 of the RTD Award, however this obviously an error as the relevant provision is cl. 24.9.
[172] Defence, [18(a)].
[173] Defence, [(18)(b)(i)-(v)].
Clause 24.9 of the Award provided:
24.9 Meal breaks
All shiftworkers while working on day, afternoon or night shift will be entitled to a paid meal break of 20 minutes. An employee will not be required to work more than five hours without a meal break.
The evidence of Mr Noske, Mr Cameron and Mr Reed established that the Applicant was paid for all time on shift.[174] There is therefore no question that whatever breaks the Applicant took, he was paid for them.
[174] Noske Affidavit, [35]-[40]; Cameron Affidavit [20] and [21]; and Reed Affidavit [30]-[36].
The Applicant’s Daily Work Sheets show that the Applicant frequently took breaks of 20 minutes or more. For example the Applicant’s Daily Work Sheet:
(a)For 6 October 2015 shows that the Applicant took a break from 7:00 pm to 7:30 pm;[175]
(b)For 12 October 2015 shows that the Applicant took a break from 6:00 am to 6:20 am;[176]
(c)For 13 October 2015 shows that the Applicant took a break from 2:30 pm to 7:30 pm;[177]
(d)For 21 October 2015 shows that the Applicant took a break from 6:10 am to 6:55 am;[178]
(e)For 22 October 2015 shows that the Applicant took a break from 5:00 pm to 5:30 pm;[179]
(f)For 18 November 2015 shows that the Applicant took a break from 5:00 am to 5:30 am;[180]
(g)For 16 December 2015 shows that the Applicant took a break from 4:45 pm to 5:15 pm;[181]
(h)For 17 January 2016 shows that the Applicant took a break from 7:15 am to 7:45 am;[182] and
(i)For 18 January 2016 shows that the Applicant took a break from 4:30 am to 5:00 am.[183]
[175] CB 93.
[176] CB 96.
[177] CB 97.
[178] CB 102.
[179] CB 103.
[180] CB 119.
[181] CB 128.
[182] CB 140.
[183] CB 141.
Each of these breaks met the requirements of the RTD Award. This evidence contradicts the evidence given by the Applicant, which was that initially breaks were not taken.[184] The Applicant gave evidence that “90 per cent of the time we didn’t get breaks” and that he only started taking breaks “towards the end” of his employment with the Respondent.[185] The evidence in the preceding paragraph demonstrates that the Applicant was taking his breaks throughout his employment.
[184] Transcript (7.10.20) P19:L32.
[185] Transcript (7.10.20) P33:L18-35.
Mr Reed’s evidence was that most Driver’s took their breaks at the Myamym Mill weighbridge.[186] The Applicant’s main contention was that there was insufficient time while loading to take the required breaks. This is not disputed by the Respondent.[187] However, Mr Reed also said:
(a)Drivers were expected to extend their breaks when at the Myamym Mill weighbridge;[188]
(b)There was space to park at the Myamyn Mill weighbridge to take a break;[189] and
(c)Drivers were not required to take their breaks at the Myamyn Mill weighbridge.[190]
[186] Transcript (7.10.20) P62:L21-47.
[187] Respondent’s Outline of Submissions, 9.10.20, [51].
[188] Transcript (7.10.20) P67:L3-14.
[189] Transcript (7.10.20) P75:L34-P76:L20.
[190] Transcript (7.10.20) P 72:L33-40.
The Applicant’s case relied heavily on the contention that breaks were to be taken at the Myamym Mill weighbridge during the loading process.[191] The Applicant however admitted under cross-examination that he frequently took breaks at other locations. The Applicant admitted that:
(a)On 2 March 2016 he took a break on the Henty Highway from 7:24 am to 8:05 am, being a break of 41 minutes;[192]
(b)On 4 March 2016 he took a break on the Henty Highway from 7:39 am to 8:07 am, being a break of 28 minutes;[193]
(c)On 20 March 2016 he took a break on the Henty Highway from 7:45 am to 8:30 am, being a break of 45 minutes;[194]
(d)On 21 March 2016 he took a break on the Henty Highway from 9:30 am to 10:30 am, being a break of 1 hour;[195] and
(e)On 22 March 2016 he took a break on the Henty Highway from 6:35 am to 7:42 am, being a break of 1 hour and 7 minutes.[196]
[191] Transcript (7.10.20) P22:L7-11.
[192] CB 288; Transcript (7.10.21) P30:L30-47.
[193] CB 284; Transcript (7.10.21) P31:L35-47.
[194] CB 167; Transcript (7.10.21) P32:L5-15.
[195] CB 168; Transcript (7.10.21) P32:L17-19.
[196] CB 287; Transcript (7.10.21) P32:L21-P33:L1.

I therefore find that the Applicant did not exercise a work place right under s.25(1)(b) of the OHS Act or the HVNL pursuant to s.341(1)(a) of the FW Act, as pleaded in paragraph 56 of the Amended Statement of Claim.
(ii) Personal Leave
The Applicant pleads that he exercised a workplace right within the meaning of s.341(1)(a) of the FW Act by taking personal leave. It is pleaded that on 10 March 2016 the Applicant sent a text to Mr Reed informing Mr Reed that the Applicant would be taking a week off work, and that the Applicant had a medical certificate. It is also pleaded that Mr Reed then telephoned the Applicant that day and that the Applicant and Mr Reed had a conversation.[226]
[226] Amended Statement of Claim, [39], [47] and/or [51] and [57].
The Respondent admits that the Applicant exercised a workplace right within the meaning of s.341(1)(a) of the FW Act by taking personal leave. The Respondent admits that Mr Reed received a text from the Applicant on 10 March 2016, but otherwise denies the contents of the subsequent telephone discussion between the Applicant and Mr Reed that day. The Respondent also pleads that the personal leave that the Applicant subsequently took was unpaid because the Applicant had exhausted his accrued personal leave.[227]
[227] Defence, [39], [47], [51] and [57].
(iii) Request to Change Roster, the September 2015 Incident and the Performance Concerns
The Applicant pleads that he exercised workplace rights within the meaning of s.341(1)(c)(ii) of the FW Act:
(a)On or about 22 November 2016 by asking Mr Reed if he could change his roster so that he could work permanently on night shifts (Roster Change Request).[228] It is noted that the date of 22 November 2016 as pleaded in [42] of the Amended Statement of Claim is clearly incorrect, as the Applicant’s employment with the Respondent terminated on 25 April 2016.
(b)By raising his concerns with Mr Reed in relation to the September 2015 Incident.[229] It is noted that in [43] of the Amended Statement of Claim this incident is pleaded to have taken place in or about November 2016. This again is clearly incorrect as the Applicant’s employment with the Respondent terminated on 25 April 2016. Further as discussed at [24] above, the Applicant accepted under cross-examination that this incident occurred in September 2015, not November 2015.
(c)In relation to the Performance Concerns:
(i)On 23 March 2016 by requesting to speak to Mr Reed about the Performance Concerns and Mr Reed refusing to discuss the Performance Concerns.
(ii)On 1 April 2016 the Applicant sent to Mr Reed an email requesting that he be provided with specified information in relation to the Performance Concerns.
(iii)On 18 April 2016 the Applicant sent to Mr Reed and Mr Noske an email requesting that he be provide with specified information in relation to the Performance Concerns.[230]
[228] [42] and [58].
[229] [43], [44] and [58].
[230] Amended Statement of Claim, [50], [52], [54] and [58].
The Respondent admits that the Applicant exercised workplace rights within the meaning of s.341(1)(c)(ii) of the FW Act, but says further:
(a)In relation to the Roster Change Request: The Respondent disputes the substance of the discussion as alleged between the Applicant and the Respondent on 22 November 2015, and pleaded that there were a number of exchanges between the Applicant and Mr Reed between 21 November 2015 and 25 November 2015, where the Applicant sought to vary his rostered hours with those of another Driver, Mr Hill.[231]
(b)In relation to the September 2015 Incident: The Respondent denies the substance of the conversation alleged when the Applicant reported the September 2015 Incident to Mr Reed. The Respondent pleads that Mr Reed asked the Applicant what he wanted to do about the September 2015 incident and the Applicant said that he did not know.[232]
(c)In relation to the Performance Concerns:
(i)On 23 March 2016: the Applicant arrived at the Depot at around 2:00 pm. Mr Reed considered that the Applicant was wearing unsafe footwear and directed the Applicant to return home and change his footwear for safety boots. The Applicant left and returned around 20 minutes later, accompanied by Ms Wall and without having changed his footwear. The Applicant went into Mr Reed’s office with Ms Wall and said he wished to discuss the Performance Concerns, which Mr Reed refused to do. Mr Reed told the Applicant that a Worksafe Victoria Inspector, Paul McCoy was on the premises and that the Applicant should go and talk to Mr McCoy. The Applicant spent around an hour with Mr McCoy and then left the Depot with Ms Wall. The Applicant returned to the Depot approximately 45 minutes later, informed Mr Reed that he would be commencing a period of stress leave and handed to Mr Reed the 23 March 2016 Certificate of Capacity. Mr Reed then informed the Applicant that he had exhausted his personal leave entitlements.[233]
(ii)The Respondent admits that the Applicant sent Mr Reed an email on 1 April 2016.[234]
(iii)The Respondent admits that the Applicant sent Mr Reed an email on 18 April 2016.[235]
[231] Defence, [42] and [58].
[232] Defence, [43], [44] and [58].
[233] Defence, [50] and [58].
[234] Defence, [52] and [58].
[235] Defence, [54] and [58].
D.       BREACH OF CONTRACT CLAIM
The Applicant alleges that by reason of the Respondent’s conduct as pleaded in [41] to [55] of the Amended Statement of Claim, the Respondent evinced an intention not to be bound by the Employment Contract, and thereby repudiated the Employment Contract.[236] It is alleged that the Applicant accepted the Respondent’s repudiation of the Employment Contract by sending the Applicant’s 25 April 2016 Email to Mr Reed.[237] It is further alleged that the Respondent thereby breached the Employment Contract, and the Applicant consequently suffered loss and damage.[238]
[236] Amended Statement of Claim, [59].
[237] Amended Statement of Claim, [60].
[238] Amended Statement of Claim, [72] and [73].
The Respondent denies these allegations and pleads that the Applicant resigned from his employment for reasons unknown to the Respondent.[239]
[239] Defence, [59], [60], [72] and [73].
Relevant Legal Principles Relating to Breach of Contract by Repudiation
The relevant legal principles relating to breach of a contract by repudiation have been succinctly summarised in the Respondent’s Outline of Submissions.[240] I adopt these submissions, with amendment, as follows:
(a)A breach of contract by repudiation occurs when a party evinces an intention to no longer be bound by it or to fulfil it only in a manner substantially inconsistent with the contractual obligations. Repudiation will arise where there is conduct consistent with a renunciation of either the contract as a whole or a fundamental obligation under it: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 (at [44]).
(b)Repudiation of a contract is a serious matter and is not to be lightly found or inferred: Shevill v Builders Licencing Board (1982) 149 CLR 620 (at 633).
(c)To amount to a refusal to perform the contract, the breach must be sufficiently serious: Re Rubel Bronze and Metal Co Ltd [1918] 1 KB 315 (at 322); Abu Dhabi National Tanker Co v Product Start Shipping Ltd (No 2) [1993] 1 Lloyd’s Rep 397 (at 407); and Suisse Atlantique Société d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361 (at 394, 429, 435).
(d)Repudiation is a breach which is so serious that it goes to the root of the contract, and therefore deprives the other party of substantially the whole of the benefit of the contract: Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 at 31.
[240] Respondent’s Outline of Submissions, 9.10.20, [124].
The Claim the Employment Contract was Repudiated
The Applicant relies upon nine matters pleaded in [41] to [55] of the Amended Statement of Claim to allege that the Respondent repudiated the Employment Contract, as follows:
(a)The Applicant during his employment with the Respondent took rest breaks from driving trucks when he was fatigued and/or to comply with the BFM Standards (as defined in [35] of the Amended Statement of Claim).[241]
(b)The Respondent’s refusal to agree to the Roster Change Request.[242]
(c)The September 2015 Incident.[243]
(d)The March 2016 Incident.[244]
(e)Mr Reed telephoning the Applicant on 10 March 2016 to discuss the Applicant’s sick leave.[245]
(f)The Respondent’s refusal on 13 March 2016 to allow the Applicant to take one day annual leave over Easter (Easter Leave Refusal).[246]
(g)Mr Reed notifying the Applicant of the Performance Concerns in an email sent to the Applicant, and copied to Mr Noske, on 23 March 2016.[247]
(h)Mr Reed’s refusal to discuss the Performance Concerns with the Applicant at the Depot on 23 March 2016.[248]
(i)The Respondent’s alleged failure to respond to emails from the Applicant sent by the Applicant to Mr Reed on 1 April 2016 and 18 April 2016.[249]
[241] Amended Statement of Claim, [41].
[242] Amended Statement of Claim, [42].
[243] Amended Statement of Claim, [43] and [44].
[244] Amended Statement of Claim, [45] and [46].
[245] Amended Statement of Claim, [47].
[246] Amended Statement of Claim, [48].
[247] Amended Statement of Claim, [49].
[248] Amended Statement of Claim, [50].
[249] Amended Statement of Claim, [52]-[55].
Did the Respondent Repudiate the Employment Contract?
I turn now to consider each of the nine matters that the Applicant relies upon to allege that the Respondent repudiated the Employment Contract.
In relation to the Applicant taking rest breaks from driving trucks, the Respondent admits that the Applicant took rest breaks, as he signed the Applicant’s Daily Work Sheets stating that he had taken the requisite breaks during the shift. The Respondent otherwise does not know and pleads that it cannot admit this allegation.[250] The evidence of Mr Noske and Mr Reed was that it is the responsibility of each Driver to take breaks and to manage their own fatigue. This evidence is discussed at [26(g)] and [28(f)] of these Reasons for Judgment. In the Respondent’s Outline of Submissions the Respondent made no submission in relation to this allegation.
[250] Defence, [41].
I am unable to conclude that the allegation in [41] of the Amended Statement of Claim evinces any intention by the Respondent not to be bound by the Employment Contract or repudiation of the Employment Contract. I therefore determine that the allegation in [41] of the Amended Statement of Claim does not evidence conduct on the part of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract.
In relation to the Respondent’s Refusal to agree to the Roster Change Request, the Respondent submits that the Respondent had no obligation to change the Applicant’s Roster and that it was entitled to require the Applicant to work as directed and according to the same roster that all the other Drivers worked. The Respondent further submits that the Applicant did not want the roster change for himself, but to assist another employee. Once that employee no longer needed the roster change the Applicant did not pursue the matter further.[251]
[251] Respondent’s Outline of Submissions, 9.10.20, [126(a) and (b)].
I accept each of these submissions for the following reasons:
(a)The submissions are consistent with the Applicant’s evidence referred to in [23(a) to (c)] of these Reasons for Judgment.
(b)When the Applicant was cross-examined the Applicant conceded that the Roster Change Request was not to meet his own requirements but was to accommodate Mr Hill. The Applicant said ‘It was about helping Mr Hill’. The Applicant also conceded that after Mr Hill unfortunately no longer required the shift change, the Applicant did not pursue the matter further.[252]
[252] Transcript (7.10.20) P35:13-21.
(c)It was the evidence of Mr Noske and Mr Reed that:
(i)The Rotating Roster had been implemented in late 2012 or early 2013 and has not changed since it was implemented;
(ii)The Rotating Roster was implemented partly because of the work diary requirements under the HVNL. The Rotating Roster meant that Drivers were not driving too many night hours;
(iii)All Drivers work the Rotating Roster; and
(iv)It is a safety risk and a concern to have a Driver working on a permanent night shift due to the HVFM Regulation.
(d)The evidence of Mr Noske and Mr Reed referred to in the previous sub-paragraph is referred to in [26(h) and (k)] and [28(c) and (d)] of these Reasons for Judgment.
(e)It was also the evidence of Mr Reed that:
(i)Mr Hill did not ever approach Mr Reed in relation to the Roster Change Request;
(ii)Having a Driver on ‘permanent day shift’ and another Driver on ‘permanent night shift’ would make the Rotating Roster difficult to manage; and
(iii)The Respondent would have to pay higher rates to Drivers working permanent night shift and the Respondent would breach the work diary rules.
(f)The evidence of Mr Reed referred to in the previous sub-paragraph is referred to in [28(i) and (j)] of these Reasons for Judgment.
(g)Mr Reed was not cross-examined by the Applicant in relation to any matter relating to the Roster Change Request.
(h)It was the evidence of Mr Cameron that:
(i)The Respondent has operated the Rotating Roster at the Depot from about 21 October 2012;
(ii)All Drivers are rostered to work the Rotating Roster;
(iii)Changing the Rotating Roster to accommodate the Roster Change Request would have been difficult to accommodate, given the nature of the Rotating Roster and the impact that it would have had on the other Drivers; and
(iv)Having a Driver working permanent nightshift would create risks from a fatigue management perspective.
(v)The evidence of Mr Cameron referred to in the previous sub-paragraph is referred to in [30(c) and (g)] of these Reasons for Judgment.
I therefore determine that the allegation in [42] of the Amended Statement of Claim does not evidence conduct on the part of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract.
In relation to the September 2015 Incident, the allegations in [43] and [44] of the Amended Statement of Claim are not made out for the following reasons:
(a)When the Applicant was cross-examined:
(i)The Applicant conceded that Mr Cairns had genuinely asked him “What do you want me to do about it?”, and the Applicant had replied “Discipline him and tell him to respect others”. The Applicant said that he thought that he and Mr Cairns got on “really well” with each other. The Applicant also agreed that Mr Cairns had said that he was going to let Mr Reed know what had happened;[253] and
(ii)The Applicant agreed that he spoke with Mr Reed about the September 2015 Incident when Mr Reed returned from his holidays. The Applicant agreed that Mr Reed also asked the Applicant what he wanted Mr Reed to do about the September 2015 Incident and that he told Mr Reed “I want him disciplined […] and I want you to tell him to respect others”. The Applicant further agreed that Mr Reed had told him that he wanted the Applicant to ‘leave it with him’.[254]
(b)It was the evidence of Mr Reed that the Applicant did not ask him to do anything in particular in relation to the September 2015 Incident, so Mr Reed said ‘Leave it with me’. Mr Reed later spoke with Mr Flynn and said ‘Tone it down a bit’. Neither the Applicant, nor Mr Flynn, asked Mr Reed to do anything further in relation to this incident, so therefore Mr Reed considered the matter to have been dealt with. Mr Reed’s evidence is referred to at [28(h)] of these Reasons for Judgment.
[253] Transcript (7.10.20) P38:L9-21.
[254] Transcript (7.10.20) P38:L23-29.
I therefore determine that the allegations in [43] and [44] of the Amended Statement of Claim do not evidence conduct on the part of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract.
In relation to the March 2016 Incident, the allegations in [45] and [46] of the Amended Statement of Claim are not made out for the following reasons:
(a)The March 2016 Incident is separated by a period of more than five (5) months after the September 2015 Incident and the Applicant makes no complaint about the Respondent’s conduct that occurred during the period from October 2015 to late February 2016.
(b)The Respondent did not complain to anyone at the Respondent about the March 2016 Incident.
(c)It was the evidence of Mr Reed that on or about 4 March 2016 Mr Gavin and Mr Croft complained to him about the Applicant’s behaviour. Neither Mr Croft nor Mr Gavin wanted to make a formal complaint about the Applicant. The evidence of Mr Reed in relation to the March 2016 Incident is referred to at [28(m)] of these Reasons for Judgment.
I therefore determine that the allegations in [45] and [46] of the Amended Statement of Claim do not evidence conduct on the part of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract.
In relation to the telephone discussion between Mr Reed and the Applicant on 10 March 2016, the Applicant and Mr Reed provide differing evidence in relation to this conversation. The Applicant’s evidence in relation to this telephone discussion is referred to at [23(i)] of these Reasons for Judgment. Mr Reed’s evidence is referred to at [28(n) and (o)] of these Reasons Judgment. The main factual contest is the Applicant’s contention that Mr Reed said that he was “sick and tired” of the “sickies and breaks” the Applicant was taking. The Applicant did not cross-examine Mr Reed in relation to this telephone conversation, therefore Mr Reed’s evidence remains unchallenged. It is noted that that [47(v)] of the Amended Statement of Claim alleges that Mr Reed said that he was “getting sick of the [Applicant] taking breaks”. I make no finding as to whether Mr Reed used the words “sick and tired” of the “sickies and breaks”. Even if Mr Reed said these words, the allegation in [47] of the Amended Statement of Claim is not made out, as I find that:
(a)It is evident that Mr Reed spoke to the Applicant and said that he wanted to understand why the Applicant was unwell. Mr Reed reminded the Applicant that he had taken a lot of sick leave.
(b)The Applicant refused to provide any information to Mr Reed and hung up on Mr Reed.
(c)Mr Reed did not say that the Applicant could not or should not be taking sick leave.
(d)By about 10 March 2016 the Applicant had used most of his paid personal leave. Given the amount of paid personal leave that the Applicant had taken, it was not unreasonable for Mr Reed to be concerned and want to know why the Applicant was taking more paid personal (sick) leave.
(e)The remark “sick and tired” falls far short of the standard required to establish an intention to repudiate the Employment Contract or repudiation of the Employment Contract, which is set out in [122] of these Reasons for Judgment.
I therefore determine that the allegations in [47] of the Amended Statement of Claim do not evidence conduct on the part of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract.
In relation to the Easter Leave Refusal:
(a)In the week commencing 21 February 2016 Mr Reed sent out to the Drivers the Easter Leave Directive. The Respondent thereby notified the Drivers that it would require all of its Drivers on all shifts for the next 4-8 weeks, due to the requirements of SWF.
(b)On 2 March 2016 the Applicant sent an email to Mr Reed requesting annual leave on Thursday 24 March 2016 (the day before the Good Friday public holiday).
(c)The Applicant’s 2 March 2016 email also stated that the Applicant would be “unavailable for work” on Friday 25 March 2016 (the Good Friday public holiday).
(d)The day the Applicant requested leave was a day that fell shortly prior to the Applicant’s rostered days off over the Easter period, being Easter Saturday, Sunday, Monday and Tuesday.
(e)The Applicant provided no explanation as to why he wanted or needed to take annual leave on 24 March 2016.
(f)On 2 March 2016 Mr Reed sent an email to the Applicant refusing the Applicant’s request for leave. I find that this email was polite and respectful towards the Applicant and reasonably explained the Respondent’s position in relation the Easter Leave Directive and Applicant’s request for the annual leave.
(g)On 10 March 2016 the Applicant commenced a period of seven (7) days personal (sick leave).
(h)On 13 March 2016 the Applicant sent an email to Mr Reed, regarding his request for the annual leave which stated “I do see the refusal for annual leave unreasonable […]”
(i)On 13 March 2016 Mr Noske sent an email to the Applicant, responding to the Applicant’s email sent earlier that day to Mr Reed. I find that this email from Mr Noske was polite, firm and explained clearly to the Applicant the Respondent’s position with SWF. I also find that the suggestion in this email that the Applicant advise the Respondent if he did not want to continue working for the Respondent, so the Respondent could help him find other employment, was a genuine offer. By 13 March 2016, it was apparent to Mr Cameron, Mr Noske and Mr Reed that the Applicant was not happy with his employment with the Respondent. It was not a threat to dismiss the Applicant and no such allegation has been pleaded.

The evidence of Mr Noske, Mr Reed and Mr Cameron referred to in the previous paragraph is referred to in [26(v), (w), (y) and (z)], [28(l), (n) to (q)] and [30(e), (f), (h) and (j)] of these Reasons for Judgment.
I therefore find that for the reasons above, the Easter Leave Refusal was not unreasonable. The Respondent was not required to grant the Applicant’s request for leave and in refusing the Applicant’s request, it did so reasonably. I therefore determine that the allegations in [48] of the Amended Statement of Claim do not evince conduct on behalf of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract.
In relation to Mr Reed notifying the Applicant of the Performance Concerns in the email sent to the Applicant, and copied to Mr Noske, on 23 March 2016:
(a)In the email sent by Mr Reed to the Applicant, Mr Reed again confirmed the Easter Leave Refusal. I have previously determined that the Easter Leave Refusal was not unreasonable and was not a repudiation of the Employment Contract.
(b)The Applicant took a period of seven (7) days personal leave from 10 March 2016. Combined with his rostered days off, the Applicant had a 10 day break from work. On the Applicant’s first shift back, 20 March 2016, the Applicant took a 45 minute break.[255] On the Applicant’s second shift back, 21 March 2016, the Applicant took a break of one (1) hour.[256] On the Applicant’s third shift back, 22 March 2016, the Applicant took a break of one (1) hour and 15 minutes. The Applicant wrote on the Applicant’s Daily Work Sheet for 22 March 2016 “Stopped for 1 hour instead of ½ hour due to fatigue”.[257]
(c)The Applicant had been involved in the March 2016 Incident.
(d)Neither Mr Reed nor Mr Noske imposed any disciplinary outcome or subjected the Applicant to any sanction.
(e)I find that the suggestion in the email sent by Mr Reed that the Applicant should advise the Respondent if he did not want to continue working for the Respondent, so the Respondent could help him find other employment, was again a genuine offer. By 23 March 2016, it was even more apparent to Mr Reed and Mr Noske that the Applicant was not happy with his employment with the Respondent. It was not a threat to dismiss the Applicant and no such allegation has been pleaded.
[255] Cameron Affidavit, Annexure BC-1, CB 167.
[256] Cameron Affidavit, Annexure BC-1, CB 168.
[257] Cameron Affidavit, Annexure BC-1, CB 169.
The evidence of Mr Reed, Mr Noske and Mr Cameron referred to in the previous paragraph is referred to in [26(y) and (z)], [28(q)] and [30(e), (h) and (j)] of these Reasons for Judgment.
The evidence of Mr Reed, Mr Noske and Mr Cameron in relation to the Performance Concerns was not challenged by the Applicant. I find that the Performance Concerns were genuinely held by the Respondent and that the Respondent was entitled to notify the Applicant of the Performance Concerns in the email sent by Mr Reed to the Applicant on 23 March 2016.
I therefore determine that the allegations in [49] of the Amended Statement of Claim do not evidence conduct on the part of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract.
The Applicant relies upon Mr Reed’s refusal to discuss the Performance Concerns with the Applicant at the Depot on 23 March 2016. The allegations in [50] of the Amended Statement of Claim are not made out for the following reasons:
(a)The Applicant arrived at the Depot on the afternoon of 23 March 2016 specifically to speak to Mr Reed without any prior appointment or arrangement that it was convenient at that time for Mr Reed to speak with him. The Applicant arrived unannounced and without wearing appropriate footwear.
(b)Mr Reed did not speak with the Applicant because a WorkSafe Victoria inspector was present and Mr Reed was occupied in engaging with the inspector and monitoring the inspection of the Depot.
(c)Mr Reed only said ‘not now’, he did not say that he would not speak to the Applicant at all.
(d)I find that it was reasonable for Mr Reed not to speak with the Applicant about the Performance Concerns in circumstances where the Applicant had arrived without a prior appointment, Mr Reed had the Depot to manage and also had a WorkSafe Victoria inspector to assist.
The evidence of Mr Reed in relation to the allegations in [50] of the Amended Statement of Claim was not challenged by the Applicant. The Evidence of Mr Reed referred to in the previous paragraph is referred to in [28(r) and (s)] of these Reasons for Judgment.
I therefore determine that the allegations in [50] of the Amended Statement of Claim do not evidence conduct on the part of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract.
Finally, the Applicant relies upon the Respondent’s alleged failure to respond to emails sent by the Applicant to Mr Reed on 1 April 2016 and 18 April 2016. These allegations in [52] to [55] of the Amended Statement of Claim fail as a matter of fact.
In relation to the email sent by the Applicant on 1 April 2016, Mr Reed responded to this email by way of an email and also a text on 4 April 2016. Mr Cameron assisted Mr Reed in preparing Mr Reed’s response to the Applicant’s email sent on 1 April 2016. Mr Reed sent further emails to the Applicant on 6 and 9 April 2016.
The evidence of Mr Reed and Mr Cameron in relation to the allegations in [52] and [53] of the Amended Statement of Claim was not challenged by the Applicant. The evidence of Mr Reed and Mr Cameron referred to in the previous paragraph is referred to in [28(w) to (z) and (aa)] and [30(m) and (n)] of these Reasons for Judgment.
In relation to the email sent by the Applicant on 18 April 2016:
(a)On 21 April 2016 Mr Cameron responded to this email on 21 April 2016. Mr Cameron sent a further email to the Applicant on 22 April 2016. The substance of these communications was:
(i)The Respondent needed further information before the Applicant could return to work, in light of the information contained in the 20 April 2016 Certificate of Capacity;
(ii)The Respondent would work through the complaints that the Applicant had raised; and
(iii)The Respondent had lodged the workers’ compensation paperwork and was waiting for an agent to be assigned to assist the parties to work through the issues.
(b)On 20 April 2016 Mr Reed received an email from the Applicant, which advised that the Applicant was ‘available for my regular shifts at 2:30 pm tomorrow’ and forwarded the 20 April 2016 Certificate of Capacity.
The evidence of Mr Reed and Mr Cameron in relation to the allegations in [54] and [53] of the Amended Statement of Claim was not challenged by the Applicant. The evidence of Mr Reed and Mr Cameron referred to in the previous paragraph is referred to in [28(dd) to (jj)] and [30(s) to (u)] of these Reasons for Judgment.
I find that the Respondent was treating the employment of the Applicant as ongoing and taking reasonable steps to advance the Applicant’s application for workers’ compensation benefits and to deal with his complaints.
I therefore determine that the allegations in [52]-[55] of the Amended Statement of Claim do not evidence conduct on the part of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract.
I have considered individually each of the nine matters pleaded against the Respondent in [41] to [55] of the Amended Statement of Claim alleging that the Respondent repudiated the Employment Contract. I have concluded that none of these allegations are proven. I now turn to consider whether cumulatively the allegations evince conduct on the part of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract.
When the Applicant was cross-examined about his reasons for sending the Applicant’s 25 April 2015 email he said:
I had had enough.[258]
I had waited enough. I had waited two days. That was enough. I was – I was…didn’t even want to wait 24 hours. I had had enough. You asked me if I could have waited? I told you, no.[259]
[258] Transcript (7.10.20) P48: L7.
[259] Transcript (7.10.20) P48: 27-29.
I find that the Respondent, taking into account the allegations made in [41] to [55] of the Amended Statement of Claim cumulatively, continued to treat the Applicant’s employment with it as ongoing and to take reasonable steps to advance the Applicant’s application for workers’ compensation benefits and to deal with his complaints.
I therefore determine that the allegations in [41] to [55] cumulatively of the Amended Statement of Claim do not evidence conduct on the part of the Respondent of an intention to repudiate the Employment Contract or repudiation of the Employment Contract. As discussed in [122] of these Reasons for Judgment, repudiation of a contact is a serious matter and is not to be lightly found or inferred: Shevill v Builders Licencing Board (1982) 149 CLR 620 (at 633).
I also determine that the Applicant resigned from employment with the Respondent.
Therefore the claim for breach of contract for repudiation of the Employment Contract by the Respondent is dismissed.
D. ADVERSE ACTION CLAIM
Was Adverse Action Taken?
Section 342 of the FW Act defines adverse action as follows:
(1)The following table sets out circumstances in which a person takes adverse action against another person.

Meaning of adverse action

Item

Column 1

Adverse action is taken by…

Column 2

if…

1

an employer against an employee

the employer:

(a) dismisses the employee; or

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.

Therefore s.342(1) of the FW Act provides adverse action includes an “injury” or the alteration of the employee’s position to their prejudice.
In Australian Workers’ Union v BHP Iron-Ore Pty Ltd ([2001] FCA 3; (2000) 106 FCA 482) Kenny J said:
52 The concepts of injury and prejudice […] are not narrow. The High Court said in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 […] at 18 that:
[Paragraph] (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.[260]
[…]
54 […] it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur.[261]
[260] Australian Workers’ Union v BHP Iron-Ore Pty Ltd [2001] FCA 3, [52].
[261] Ibid, [54].
The Applicant pleads that adverse action has been taken on three occasions as follows:
(a)In [61] of the Amended Statement of Claim, by reason of: the Roster Change Request; the March 2016 Incident; Mr Reed telephoning the Applicant on 10 March 2016 to discuss the Applicant’s sick leave; the Easter Leave Refusal; notifying the Applicant of the Performance Concerns in an email on 23 March 2016; Mr Reed’s refusal to discuss the Performance Concerns with Applicant at the Depot on 23 March 2016; and the Respondent’s alleged failure to respond to emails from the Applicant on 1 April 2016 and/or 18 April 2016 (First Adverse Action).[262]
(b)In [62] of the Amended Statement of Claim, by reason of the Easter Leave Refusal (Second Adverse Action).[263]
(c)In [63] of the Amended Statement of Claim, by reason of the Respondent repudiating the Employment Contract (Third Adverse Action).[264]
[262] Amended Statement of Claim, [61], [42], [45]-[50], [53] and/or [55].
[263] Amended Statement of Claim, [62], [48] and/or [49].
[264] Amended Statement of Claim, [63] and [59].
The Applicant pleads that the Respondent thereby contravened s.340(1)(a) or (b) of the FW Act.[265] The Respondent denies these allegations.[266]
[265] Amended Statement of Claim, [64]-[71].
[266] Defence, [64]-[71].
First Adverse Action
The First Adverse Action is a rolled-up claim of miscellaneous conduct. The Applicant has not explained how any of the matters pleaded in [61] of the Amended Statement of Claim constituted adverse action. The Applicant has the burden to prove the injury or the prejudicial alteration in the position of the Applicant. The Applicant did not address these issues at all.
The reverse onus does not arise in relation to the First Adverse Action because the Applicant has not established that any of the conduct constituted adverse action.
Therefore I determine that the allegations in [61] of the Amended Statement of Claim do not constitute adverse action within the meaning of s.342(1) of the FW Act and the Respondent has not contravened s.340(1) of the FW Act.
Second Adverse Action
The Easter Leave Refusal was not adverse action because the refusal to grant the Applicant annual leave did not injure the Applicant in his employment as it was not a compensable injury. Further, the Easter Leave Refusal was not a prejudicial alteration of the Applicant’s position. I have previously determined at [136] to [138] of these Reasons for Judgment that the Easter Leave Refusal was not unreasonable. It was therefore lawful. The Applicant’s position was the same before and after the Easter Leave Refusal, he was required to work his regular roster.
The evidence of Mr Noske, Mr Reed and Mr Cameron was that Easter Leave Refusal was because of SWF’s operational requirements. All Drivers were subject to the Easter Leave Directive. The Applicant did not provide any reason why he needed annual leave, which meant that his request for annual leave needed separate consideration from that of other employees. The evidence of Mr Noske, Mr Reed and Mr Cameron is discussed at [136] and [137] of these Reasons for Judgment and I have accepted this evidence.
Therefore I determine that the allegations in [62] of the Amended Statement of Claim do not constitute adverse action within the meaning of s.342(1) of the FW Act and the Respondent has not contravened s.340(1) of the FW Act.
Third Adverse Action
I have previously determined at [124] to [158] of these Reasons for Judgment that the Respondent did not repudiate the Employment Contract.
The reverse onus does not arise in relation to the Third Adverse Action because the Employment Contract was not repudiated.
Therefore I determine that the allegations in [63] of the Amended Statement of Claim do not constitute adverse action within the meaning of s.342(1) of the FW Act and the Respondent has not contravened s.340(1) of the FW Act.
CONCLUSION
On the basis of the above it has been concluded that the Respondent did not:
(a)Contravene s.45 of the FW Act by breaching cll.24.1(b) or (c); 15 and 24; 24.9; 26.1 and 26.2(a) and 16.4(e) of the RTD Award.
(b)Contravene s.535(1) of the FW Act.
(c)Take adverse action against the Applicant for a prohibited reason.
(d)Breach the Employment Contract by repudiating the Employment Contract.
In light of these Reasons for Judgment the Application is dismissed.

175 I certify that the preceding one-hundred and seventy-four (174) paragraphs are a true copy of the Reasons for Judgment of Judge Her Honour Judge C. E. Kirton QC.

Associate:
Date: 9 December 2021

File number(s):	MLG 1964 of 2016
Judgment of:	HER HONOUR JUDGE C. E. KIRTON QC
Date of judgment:	9 December 2021
Catchwords:	INDUSTRIAL LAW – Fair Work – alleged contraventions of various provisions of the Fair Work Act 2009 (Cth) by breaching the Road Transport and Distribution Award 2010 – alleged contravention of the Fair Work Regulations 2009 by failing to keep records as prescribed – consideration of whether the Respondent took adverse action against the Applicant for exercising a ‘workplace right’ – consideration of whether the Respondent beach the employment contract by repudiating the employment contract where the Applicant resigned – application for declarations against the Respondent and for the payment of compensation and pecuniary penalties dismissed.
Legislation:	Fair Work Act 2009 (Cth), ss 12, 45, 87, 340, 341, 342, 535, 545, 546 Occupational Health and Safety Act 2004 (Vic) s 25 Fair Work Regulations 2009, reg 3.33 Road Transport and Distribution Award 2010, cll 15.2, 16.4(e), 24.1, 24.2, 24.3, 24.4, 24.5, 24.9, 24.10, 26.1, 26.3 Heavy Vehicle National Law, ss 3, 5, 227, 229, 457 Heavy Vehicle (Fatigue Management) National Regulation National Heavy Vehicle Accreditation Scheme
Cases cited:	Abu Dhabi National Tanker Co v Product Start Shipping Ltd (No 2) [1993] 1 Lloyd’s Rep 397 Australian Workers’ Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2000) 106 FCA 482 Cory Brothers & Company Limited v The Owners of the Turkish Steamship “Mecca”[1897] AC 286 James Turner Roofing Pty Ltd WASCA 28 (2003) 132 IR 122 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 Linkhill Pty Ltd v Director, Officer of the Fair Work Building Industry Inspectorate [2015] FCAFC 99; (2015) 240 FCR 578 Moree Plains Shire Council v Goater [2016] FCAFC 135 Poulos v Waltons Stores (Interstate) Ltd [1986] FCA 159; (186) 10 FCR 429 Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 Re: Rubel Bronze and Metal Co Ltd [1918] 1 KB 315 Re: Annualised Wage Arrangements [2018] FWCFB 154 Re: Pastoral Award 2010 [2015] FWCFB 8810 Shevill v Builders Licencing Board (1982) 149 CLR 620 Suisse Atlantique Société d’Armement Maritime SA v NV Rotterdamsche Kolen Centrale [1967] 1 AC 361 The Environmental Group Ltd v Bowd [2019] FCA 951
Division:	Division 2 General Federal Law
Number of paragraphs:	174
Date of last submission/s:	9 October 2020
Date of hearing:	7 & 9 October 2020
Place:	Melbourne
Counsel for the Respondent:	Ms Kelly
Solicitor for the Respondent:	Hall & Wilcox

MLG 1964 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ANTHONY PETER DUNCAN Applicant
AND:	KELLY LOGISTICS PTY LTD (ACN 608 259 061) Respondent

ORDER MADE BY:	HER HONOUR JUDGE C. E. KIRTON QC
DATE OF ORDER:	9 DECEMBER 2021