Mr Christopher Paterson v Blueline Transport Pty Ltd - [2013] FWC 6335

[2013] FWC 6335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Christopher Paterson
v
Blueline Transport Pty Ltd
(U2013/6217)

VICE PRESIDENT HATCHER

SYDNEY, 3 SEPTEMBER 2013

Application for unfair dismissal remedy - casual employee - dismissal was harsh, unjust and unreasonable - compensation awarded.

Introduction

[1] Mr Christopher Paterson was employed by Blueline Transport Pty Ltd (Blueline) as a casual truck driver from about 24 February 2011 until early 2013. The circumstances in which his employment came to an end are controversial, and the date upon which that occurred is difficult to identify. Mr Paterson contends that he is a person protected from unfair dismissal, that he was unfairly dismissed, and that he should be granted compensation under s.392 of the Fair Work Act 2009 (the Act). Blueline contends that Mr Paterson was not a person protected from unfair dismissal, on the basis that he had not served the minimum employment period prescribed by s.383 of the Act because he was a casual employee who was not employed on a regular and systematic basis and could not have had a reasonable expectation of continuing employment on a regular and systematic basis. In the alternative, Blueline denies that it had ever dismissed Mr Paterson, so that no question of unfair dismissal arises.

[2] The application was dealt with in a determinative conference conducted under s.398 of the Act on 5 August 2013. Both parties sought permission to be represented by solicitors. I granted such permission. I was satisfied that, with respect to both parties, it would be unfair not to allow them to be represented by lawyers because they would not otherwise be able to represent themselves effectively 1, and I otherwise considered it appropriate in all the circumstances to grant permission.

The evidence

Applicant’s evidence

[3] Mr Paterson gave evidence about his employment by way of a witness statement 2, and gave further evidence in examination in chief. He was cross-examined on his evidence by Blueline. Mr Paterson is 59 years of age. His evidence was that his employment commenced on about 24 February 2011, when he was employed as a “full-time Casual Truck Driver”3 by Blueline. He was licensed to drive heavy rigid vehicles. He reported to Wayne Golding, Blueline’s Operations Manager.

[4] In his statement, Mr Paterson said that his working hours averaged about 40 per week on a regular basis. In oral evidence, Mr Paterson gave greater details of his pattern of work. He said that he worked “virtually Monday to Friday”, and sometimes Saturdays and sometimes Sundays. 4 He occasionally had days off “when things were quiet”, and had other days off when the vehicle he drove was in for repair. He had kept a record of the days and hours which he had worked, which was based on the work sheets that he returned to Mr Golding at the end of each working day or shortly thereafter. This record was tendered.5 It does not appear to cover the complete period of Mr Paterson’s employment, but only the period 29 June 2011 to 29 June 2012. It can be deduced from the document that, on average, Mr Paterson across the whole 12 month period worked approximately on 4 days and for 33 hours per week. There were about 55 working days in which no work was performed.

[5] Ultimately there appeared to be little or no contest about the general picture conveyed by this record, because at the time the document was tendered, the solicitor for Blueline made the following concession 6:

“We don’t have an issue with that on the basis that we know that he worked ultimately just before the incident about 40 hours per week, which would have meant that he had to be there fairly regularly.”

The “incident” mentioned above I understand to be a reference to a work accident which Mr Paterson suffered on 3 September 2012.

[6] Initially, Mr Paterson said, he drove a “smaller vehicle”, but was then promoted to a heavy rigid vehicle (registration WMM771) which he continually drove up until August 2012. Towards the end of August, he was assigned to a different truck, because the drivers who had been driving that truck had been “banned” by a company to or for which the truck had to make deliveries. Mr Paterson had only been driving this truck for a short period when, as earlier stated, he suffered a work injury on 3 September 2012.

[7] Mr Paterson described the occurrence of the injury in the following way 7:

“The incident was I was assisting a driver who was the only one available at that depot where I was unloading to. He was a driver not a forklift driver and he had little practice with the forklift and I had to get up on the back to manoeuvre some pallets that were on timbers and he must have either pushed - knocked the timber I was standing on. I repositioned my footing and when I put my foot down, instead of putting it down on the tray I - my foot was over the edge which made - resulted the injury. In all my years I've never had an accident or claim for compensation or anything in a matter of any work injury since the time I started work.”

[8] Mr Paterson was taken by ambulance to Liverpool Hospital. He had suffered fractures to the end of his radius and ulnar bone, severe trauma to his left wrist and bruising to his right foot and leg. He was off work for a number of weeks. On 8 September 2012, Blueline’s workers’ compensation insurer, QBE, accepted Blueline’s liability for the injury, and agreed to pay Mr Paterson workers’ compensation benefits at the rate of $868.40 gross per week. This, Mr Paterson said, was based on information supplied to QBE by Blueline and constituted remuneration for an average of 40 hours work per week.

[9] A return to work plan was developed by QBE’s rehabilitation provider, Recovre. Under the plan in its initial form, Mr Paterson would return to work on 15 October 2012. He was to work 4 hours per day, and his duties were to be limited to office administrative duties and deliveries and pickups using an automatic vehicle and not requiring any lifting. The plan then involved Mr Paterson moving to 8 hours per day performing the previously described restricted duties from 12 November 2012, and then going to normal pre-injury duties from 10 December 2012. The plan was modified a number of times in terms of dates and the phasing-up of working hours, but not to a substantial degree.

[10] Mr Paterson said that he returned to work in November 2012 as contemplated by the Recovre plan. When he did so, Mr Tony Douglass, Blueline’s Managing Director, said to him:

I am having a problem with accepting that your injury is Blueline's fault. It occurred at another work site [Kings Transport]. The claim should be on his insurance because this is where the injury occurred.

[11] Mr Paterson said that the return to work plan was not fully adhered to, in that he was required from time to time to do work more hours than the plan specified on the basis that this somehow was to be balanced out over time. During November, when Mr Paterson’s work hours under the return to work plan increased, Mr Douglass said to him:

When your hours increase, I have to pay more and the Insurer pays less. If I had known this earlier, I would not have let you come back to work. It would have been better for you to have stayed at home until you were better.

[12] At some time in about late November or early December 2012, Mr Paterson was eventually returned to truck driving. He was at first assigned the same truck he had been driving immediately before the accident on 3 September 2012, but he was then assigned a different truck with the registration AJ58QD. Mr Paterson drove this truck for a few days, but it then had a major breakdown. While it was being repaired, Mr Paterson was re-assigned to yard duties. However, after he had performed yard duties for some time, Mr Douglass said to him:

There is no truck and there is not enough work. I can't afford to have you around the office or yard. You better go home.

[13] Towards the end of December 2012, another truck became available for Mr Paterson to drive. However, shortly afterwards on 21 December 2012, Mr Paterson suffered another work injury. He was, according to his evidence, required to go to Picton to pick up a delivery consisting of the components for a demountable building. The load had been balanced with some scrap pallets. After the load was delivered, Mr Paterson tossed the scrap pallets into a bin, and in doing so wrenched his hand. Mr Paterson informed Mr Golding about this.

[14] Mr Paterson was subsequently certified as unfit for work by a doctor. He saw his treating doctor on 8 January 2013, and was given a certificate stating that he was not fit for duties from 8 - 15 January 2013. Mr Paterson personally gave Mr Golding the certificate, and in the course of doing so had, according to his statement of evidence, the following conversation with Mr Golding:

Paterson: When will my truck be ready?

Golding: It is very quiet here, it is still being repaired and we will not know for another week.

The truck being discussed was AJ58QD.

[15] On 15 January 2013 Mr Paterson returned to his workplace with a medical certificate clearing him to resume his duties, subject to some identified restrictions. He gave this to Mr Douglass. According to Mr Paterson’s witness statement, the following conversation then occurred:

Douglass: I do not want you to come back to work while you are still on progress [sic]. I am concerned that you may have another injury and continue another claim on WorkCover.

Paterson: Has my truck been fixed?

Douglass: It is still being repaired, and I do not know what the outcome is right now.

[16] On 23 January 2013 Mr Paterson returned to his workplace with another medical certificate stating that he was fit for normal duties and “no longer on WorkCover”. According to Mr Paterson’s witness statement, Mr Douglass said to him on this occasion: “Before I make any decision, I will contact QBE and WorkCover and get back to you”.

[17] Mr Paterson’s evidence was that the following day, Mr Golding rang him, and the following conversation ensued:

Golding: I need your phone SIM card back because there is something wrong with them all and we are going to re-issue new ones. Also there is some driver abuse of the phones.

Paterson: I will come in and drop it off as I am not far away.

[18] Mr Paterson said that he then proceeded to the workplace and had the following conversation with Mr Douglass, with Mr Golding present:

Douglass: You have misused your phone. You have run up a bill over $300.00 on national calls.

Paterson: It is impossible that I would have made those calls because I do not know any people that live that far away. If it was a national call, I would have made it on the landline. Can I see a list of the calls and charges to see if any of them could be a call that I made?

[19] Mr Douglass, according to Mr Paterson’s evidence, did not respond to this request and shortly thereafter left the room. Mr Paterson then had the following conversation with Mr Golding:

Golding: Can I get the yard key?

Paterson: Why?

Golding: We have a new semi driver, we are short on keys and need to give him one right away.

Paterson: I do not have the key with me. I will drop it off in the morning.

Golding: I will send a driver around in the morning to pick it up.

[20] Mr Paterson denied in his oral evidence that he had misused the phone. He said that phones were provided on the basis that there was “a deal the company got of an X number of phones for an X amount of dollars per month”, and it was only if the charges went over approximately $400 per month that “it would come out of our pockets”. On this basis, Mr Paterson said, he treated it as “my all round phone”, which I presume means he used it for personal as well as work purposes. He actually took the SIM card from the phone given to him by Blueline, and put it into his own phone. 8

[21] Mr Paterson said the yard key had been given to him at the commencement of his employment, and had stayed with him during the entire duration of his employment. In cross-examination, he accepted that he had been told that the key was needed for a new semi-trailer driver who had been employed. The following day (24 January 2013), a Blueline driver attended Mr Paterson’s home to pick up the key. This driver did not know anything about the drivers’ phones being recalled.

[22] Mr Paterson said that on 29 January 2013, he went to the workplace to see Mr Douglass, and had the following conversation with him:

Paterson: What is happening with work?

Douglas: Nothing.

Paterson: How about the phone? Are you going to re-issue us with a new phone? With no phone, it makes it hard for you to contact me about work.

Douglass: Yes too true. Put it this way, we don't have work or a truck available. I suggest you go on the dole.

Paterson: I may need a separation certificate.

Douglass: We can fix that up, that's no problem. Are you able to come back at 2pm afternoon when the secretary returns?

[23] Mr Paterson then left the workplace, and having thought about his situation, came to the view that he had been unfairly dismissed. He lodged his application in this Commission on 6 February 2013.

[24] The telephone conciliation conference in respect of Mr Paterson’s unfair dismissal application took place on 26 February 2013. Later that day Mr Paterson received an email from Mr Douglass to the following effect:

“I have advertised a position for a HR driver in the Sydney telegraph next Monday.

If you wish to apply please forward your RESUME to my operation manager Mr. Wayne Golding by next Friday 8th March 2013.”

[25] Mr Douglass sent Mr Paterson a further email on 6 March 2013. This email said:

“I have spoken to my operation manager Mr. Wayne Golding who has advised me that as at to-days date 6/03/13 you haven't applied for the HR driver job as advertised in the daily telegraph 4/03/13-6/03/13.

We are interviewing driver to-day if interested please ring MR. Wayne Golding on 96733500.”

[26] Mr Paterson went on Newstart allowance in early February 2013, which provides him with approximately $490 per fortnight. Centrelink allocated him to Max Employment as his job network provider, and he met all the job searching requirements of his work agreement. He also made independent efforts to obtain employment, including using Career One and other networks. However, the only employment he was able to obtain was with an employer named Bingo Bins. He was engaged for a period of eight days in May 2013 on a trial basis, but was then informed that he was not considered suitable for further employment because he was “too slow” and the “injury of my hand” was affecting his ability to get onto bins “and unhook things”. 9 Mr Paterson said that he earned approximately $1600 for this work, although this appears to have been an after-tax figure. Since about February or March 2013, Mr Paterson has been excused from the job search requirement for receipt of the Newstart allowance on the basis of a medical certificate concerning “complications” with his hand injury.10 I infer that the hand injury being referred to was that suffered on 21 December 2012.

Respondent’s evidence

[27] Blueline called Mr Douglass and Mr Golding to give evidence. Both of them provided witness statements and were cross-examined on those statements. 11 I will recite their evidence principally where it contradicts or supplements the evidence of Mr Paterson.

[28] Mr Douglass gave evidence that all of Blueline’s drivers are employed on a casual basis except for one, who is permanent. The system of allocating work to the casual drivers is that they are rung up the day before a job is required to be done, and told that they may come in the next day at a certain time to perform that job. They are at liberty to decline to do a job if they wish. Mr Douglass described the system of allocation as being “on an ad hoc basis”, and said that work was rotated to ensure that each driver had an opportunity to work as and when work became available. Casual drivers had no fixed hours of work, and their start and finish times depend on the particular job allocated to them. Casual drivers are allocated the same truck when they perform work; it is only when a driver goes on holidays that the driver’s truck might be allocated to a different casual driver. Casual drivers are paid at the rate of $21.71 per hour.

[29] Mr Douglass said in his statement of evidence that Mr Paterson had worked an average of 28.75 hours per week from March 2011 to 30 June 2011, an average of 30.17 hours per week from 1 July 2011 to 30 June 2012, and an average of 42.85 hours per week from 1 July 2012 until Mr Paterson was injured on 3 September 2012.

[30] Following Mr Paterson’s injury and his return to work, Mr Douglass admitted that he had made the statement attributed to him by Mr Paterson set out in paragraph [10] above. Mr Douglass also said that during November 2012 Blueline had no work for Mr Paterson to do, at which point he said to Mr Paterson:

There is no truck for you to drive. I can’t afford to have you around the office or yard. You might as well go home.

[31] Subsequently, once Mr Paterson was fit for pre-injury duties, he drove Blueline’s “ute” on 18 December 2012, did office work and returns on the “ute” on 19 and 20 December 2012, and on 21 December 2012 drove truck WNK631. On the last date, Mr Paterson “claimed” to have injured his left wrist at work, and was unable to work until 15 January 2013.

[32] Mr Douglass said in his statement of evidence that when he returned from his holidays to work on 9 January 2013, he had the following conversation with Mr Golding:

Douglass: Why has Chris gone back onto workers comp? I thought he was fit for pre injury duties.

Golding: He apparently injured his left wrist while helping someone to unload pallets on 21 December 2012 while he was on the Picton to Moorebank job.

Douglass: Why did he do that? His only duty was to drive the Truck. Why did he put himself at risk by helping a stranger to unload pallets? Surely that has nothing to do with Blueline?

[33] In relation to this injury, Mr Douglass took issue with Mr Paterson’s evidence that the job he was required to perform on 21 December 2012 would have required any use of pallets. He said that the job was for the delivery of an entire shed, not the components of a demountable building as Mr Paterson stated. Annexed to Mr Douglass’s statement was the work sheet for the job in question. It certainly refers to the transport of a shed, but whether it was an assembled shed or the components of one, or whether pallets were required for the load, cannot be discerned from the document.

[34] On 15 January 2013, Mr Douglas said that Mr Paterson provided him with a medical certificate stating that he was fit for pre-injury duties “with some restrictions”, and they had the following conversation:

Douglass: I do not want you to work until you have full clearance for normal duties.

Paterson: Has my truck been fixed?

Douglass: It is still being repaired. Come back when you receive your final Certificate and we will then see what the position is.

[35] Annexed to Mr Douglass’s statement is a copy of a WorkCover NSW medical certificate dated 15 January 2013. That certificate states that Mr Paterson was fit for pre-injury duties from 16 January 2013. It does not identify any restrictions on Mr Paterson’s capacity to perform his normal work, although beside the entry “Management plan” it states “Trial normal duties, physio”.

[36] Mr Douglass said that next, on 23 January 2013, Mr Paterson attended for work with a further WorkCover medical certificate stating that he was fit for pre-injury duties, and that the following conversation then ensued:

Paterson: Is my truck ready to go?

Douglass: It is still in the workshop. I will also have to check with QBE if they are satisfied with the Certificate. I will let you know.

Paterson: Ok.

[37] The truck which was referred to in this conversation was AJ58QD. The further medical certificate, dated 23 January 2013, was annexed to Mr Douglass’s statement. It simply identified that Mr Paterson was fit for pre-injury duties. The evidence was unclear as to whether Mr Douglass ever actually checked with QBE concerning Mr Paterson’s fitness to return to work, but Mr Douglass accepted that he never got back to Mr Paterson about this matter.

[38] Mr Douglass said that on 24 January 2013, he asked Mr Golding to contact Mr Paterson and request that he return the phone SIM card he had been issued with and the gate key that “goes with the truck” (presumably AJ58QD). Mr Douglass described the gate keys as security keys that were difficult to replace if misplaced. Mr Paterson was unable, according to Mr Douglass, to bring the items back, so he arranged for a Mr Steve Horwell to pick them up form Mr Paterson. Mr Douglass’s evidence was that Mr Paterson gave Mr Horwell the gate key, but refused to give him the SIM card. However, he said that Mr Paterson came to the Blueline yard on or about 29 January 2013 to hand in the SIM card to Mr Golding, at which time the following conversation occurred:

Paterson: Why do you want the SIM card back?

Douglass: Because you are abusing it. How could you possibly have rung up $794.23 during the period when you only worked 5 days?

Paterson: What is happening with work?

Douglass: We do not have a truck for you to drive.

Paterson: What am I going to do? I do not have any money.

Douglass: I don't know maybe you will need to go on the dole.

Paterson: I need a Separation Certificate in order to go on the dole.
Douglass: My assistant is away. Come back later in the day while I arranged for someone else to prepare it.

[39] Annexed to Mr Douglass’s statement of evidence are documents which he described as “copies of Blueline’s Mobile Phones account with the calls made by Paterson marked”. The accounts, as evidenced by the markings on them, show that for the number 0458 442 631, large numbers of calls were made in the months ending 7 January 2013, 7 February 2013 and 7 March 2013. However, it is doubtful that this had any effect upon the amount being charged, since it appears that the number was on a “Business Maximiser Plan” which resulted in only a flat $48.99 being charged for each month. If so, this is consistent with the evidence Mr Paterson gave about the basis upon which the phones were issued. Mr Douglass said that he never asked Mr Paterson to reimburse any moneys arising out of these phone accounts.

[40] Mr Douglass said that he had prepared the Separation Certificate which he had discussed with Mr Paterson. A copy of it is annexed to his witness statement. The document is evidently a standard form issued by the Department of Social Security. At the top, it says “This document certifies employment information”, and at the bottom it says “Please note: There are penalties for deliberately giving false or misleading information”. Mr Douglass has signed the certificate. Under the heading “Was employment terminated due to:”, the box next to “shortage of work” has been ticked, and the words “No Truck” have been handwritten in. Under the heading “Upon termination, did you pay this person annual leave”, the box for “No” has been crossed, and it is indicated elsewhere that no annual leave was owing. Mr Douglass said that Mr Paterson never came back to collect the certificate.

[41] The truck AJ58QD was repaired and available for work on 25 January 2013. Mr Douglass said that he allocated it to two other drivers in the period 25 January to 4 March 2013 because those drivers’ own trucks were being repaired and they had not received any work or income over the Christmas period. Mr Douglass did not say that he ever informed Mr Paterson about this.

[42] Mr Douglass said in his witness statement that the job advertisement referred to in his email to Mr Paterson of 26 February 2013 arose after “a truck again became available”. It became clear in cross-examination that the truck in question was AJ58QD. His evidence about what he intended by the emails to Mr Paterson included the following:

“So when you say apply, he would have had to compete with any other applicants?---Yes. Well, he would've had the first bite of the cherry, put it that way. If we knew that he wanted the job - if he wanted to reapply for the job he would've got the first bite of the cherry.

So what does that mean?---Meaning that if he came in and saw us about the job he probably would have got that job. We would have given it back to him saying, "Well, okay, you've arrived. AJ's available. You're quite welcome to go back into that truck". But we had to put it in such - well, we had to advertise just in case he wasn't in a position to take the job. He may have had another job so we decided to advertise so we can get other drivers in to be interviewed. We had to get a driver for a truck because it was now available and ready to go on the road and we had that much work on that we needed to fill that vacancy pretty urgently.” 12

He also said:

“As soon as a truck becomes available I would notify him and "He's quite welcome to come back". Okay, and we go back to the way - I may have worded it incorrectly when I sent him the email by saying that, "You can now reapply for the job". I said that for a reason because I didn't know if he was working for somebody and I had to advertise the job because the job - the truck was available and we had the work.” 13

[43] Mr Douglass also said in the course of cross-examination concerning the 26 February 2013 email:

“We asked Chris to apply for the job before we advertised. I didn't know what his circumstances were. He may have been working for Kings Transport for all I know, so we sent him an email saying, "The truck is available". Yes, "We are advertising the job in a local newspaper next Monday. You're quite welcome to apply for it" and I was waiting for a response. That would've saved me 300 and something dollars advertising if Chris had responded to that ad saying, "Look I'm interested. Can I come and see you?"” 14

[44] Mr Douglass also gave the following oral evidence concerning the 26 February 2013 email:

“Do I take it from the first sentence that you had already placed the ad in the Telegraph at the time you sent this email?---No, I'm sure it was after if I remember - I think we contacted Chris first and then we placed the ad the - there you are. The ad was the 26th of - we sent him an email on the 26th of February, whatever - it was a Tuesday, and the job was being - in the Sydney Telegraph the next Monday.

That's when it appeared. The question - - -?---Yes.

- - - I'm asking you is does the past tense in the first sentence [indicate] that you had placed the ad in the Telegraph already - - -?---Sorry, okay.

That is, booked it and presumably paid for it?---Okay, maybe my interpretation is wrong there. It should've said that "We are about to advertise". He had - still had time from the Tuesday the 26th of February till the following Monday to apply for that job.

And why was it necessary for him to supply a résumé? You knew everything about this guy. Why did he need to send you a résumé?---To see if things had changed. I mean, all our drivers bring their résumés with them. I mean, we like to know what he had done whilst he was off not working for us. I mean, as he said he worked for a bin company. We'd like to know that - who he worked for and what - why he worked there and, you know, had he left that company. It may have been due to part of Workers Comp. again. We had to make sure that he was fit to apply for this position.” 15

[45] Later, in cross-examination, Mr Douglass gave the following evidence:

“Now in your statement at paragraph 32 you do say, "Blueline did not have a truck available for Mr Paterson to drive on a casual basis when he was again fit… for work. When a truck became available Mr Paterson was advised but failed to respond". I put it to you that that's not the case?---Okay.

You didn't tell him that a truck was available, you just simply asked him to reapply for his job?---That is correct.

So they're two different things?---Yes.” 16

[46] Not having received any replies from Mr Paterson to his emails of 26 February and 6 March 2013, Mr Douglass said that another person was employed to fill the advertised position. Mr Douglass summarised his position with respect to the matter in his witness statement as follows:

“31. Being a casual Truck Driver Paterson was never and could never have been "dismissed" by Blueline. Apart from the misuse of the mobile phone Blueline never had any issues with Paterson's performance as a casual truck driver.

32. Blueline did not have a truck available for Paterson to drive on a casual basis when he was again fit to work. When a truck became available Paterson was advised but failed to respond.”

[47] Mr Golding gave very similar evidence to that of Mr Douglass concerning Blueline’s practices as to the allocation of work to casual employees such as Mr Paterson. He added in his oral evidence that he personally contacted the casuals to allocate work. He explained that the drivers were issued with phones or SIM cards so that they could be contacted about the allocation of work, and also for communication purposes concerning the performance of work. He also said that in allocating work, he tried to “share all the work around” and often, when there was no work for a driver, would get the driver to come in and wash the trucks for four hours’ pay. 17

[48] Mr Golding also gave the same evidence as Mr Douglass concerning the duties performed by Mr Paterson in December 2012 up to the date of the second injury on 21 December 2012. In his witness statement, he said that on 21 December 2012, he had the following conversation with Mr Paterson:

Paterson: I think I hurt my wrist helping a bloke move pallets.

Golding: Why, haven't you got a sore hand, how silly are you - where is your hand guard.

Paterson: It should be okay, but, I will check it out.

[49] Mr Golding said that when on 8 January 2013 Mr Paterson provided him with a medical certificate stating that he was unfit for work until 15 January 2013, he told Mr Paterson that it was very quiet and that his truck was still being repaired. He described in his witness statement, in terms virtually identical to the description in Mr Douglass’s witness statement (as set out in paragraph [32] above), a conversation between himself and Mr Douglass on 9 January 2013 concerning Mr Paterson’s further injury. Next, he said that on 15 January 2013 he had a conversation with Mr Douglass, in which the latter said:

I today had a meeting with Chris. I do not want him to work until he has full clearance for normal duties. I have asked him to come back when he receives a final Certificate. I will then see what the position is.

[50] Mr Golding said that on or about 24 January 2013, Mr Douglass instructed him to have Mr Paterson return his phone SIM card and the gate key that went with his truck. He gave the same evidence as Mr Douglass as to what followed, namely that he sent Mr Horswell to pick the items up from Mr Paterson, that Mr Paterson gave Mr Horswell the key but refused to give him the SIM card, and that Mr Paterson then came to the yard on or about 29 January 2013 to hand back the SIM card to him. Mr Golding said in his witness statement that when this occurred, he had the following conversation with Mr Paterson:

Paterson: Why do you want the items?

Golding: It appears from Blueline's phone records that you are using the Phone for personal use. We have advertised for a new Semi Trailer Driver, and need the key for him."

Paterson: Appears I'm not wanted.

Golding: Not the case, we don't have a truck for you to drive.

[51] Mr Golding gave the same evidence as Mr Douglass concerning the availability of truck AJ58QD after it was repaired on 25 January 2013. He stated in his witness statement that Blueline’s records reflected that “when a truck became available again” Mr Douglass sent Mr Paterson an email on or about 26 February 2013 alerting him to the fact that Blueline would be advertising for a HR driver, and also referred to the follow-up email on 6 March 2013, to which Mr Paterson did not respond. In respect of these emails, Mr Golding also gave the following oral evidence:

“Well Mr Paterson's truck became available at least from 4 March 2013?---Yes.

Why didn't you contact him in accordance with the normal practice, to allocate him work for that truck?---Because Tony told me that he was going to send Chris an email saying, "The truck is now back online and we'll do it this way". So he sent the - - -

That was a departure from the normal practice, is that right?---Yes.

...

Did Mr Douglass give you a reason for taking that different approach?---No.” 18

Conflicts in the evidence

[52] In relation to what I regard as the essential primary facts of this case, there is remarkably little conflict in the evidence of the witnesses once regard is had to normal differences in recollection. The fundamental facts concerning Mr Paterson’s pattern of work hours, the practices concerning allocation of work and trucks, and the main events during the period January to March 2013 are largely not in dispute. The forensic contest principally concerned the inferences to be drawn from those primary facts.

[53] There are some factual differences. There is a dispute as to whether the injury Mr Paterson suffered on 21 December 2012 occurred while he was carrying out his own work, or whether it occurred because he helped a stranger during the course of his working day. However, I do not consider that I need to resolve this dispute, since only the fact and not the precise cause of the injury is relevant to the determination of Mr Paterson’s application. On either version, it is apparent that the injury arose out of or in the course of Mr Paterson’s employment such as to be compensable under workers’ compensation legislation, and was treated as such. There was a dispute about precisely when and in what circumstances Mr Paterson was requested to and did return the SIM card, but again I consider that this does not require resolution in order to determine the matter. The relevant facts, namely that in late January 2013, Blueline requested that the SIM card be returned, and did so on the basis of an allegation that Mr Paterson had abused it, were not in dispute.

[54] Overall I considered Mr Paterson to be a credible witness. Although he rambled a little in his oral evidence, I consider that his evidence was generally consistent with the objective facts and that he made a genuine attempt to address all matters that were put to him. However, for reasons which are explained later, there are important parts of Mr Douglass’s evidence concerning his characterisation of the events of January to March 2013 which I do not accept because it was inconsistent with contemporaneous documents, was internally inconsistent, and simply lacked credibility. This was also true, to a lesser extent, of aspects of Mr Golding’s evidence.

Matters to be decided

[55] Part 3-2 of the Act contains the scheme of provisions concerning unfair dismissal. Section 385 sets out when a person has been unfairly dismissed as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[56] It can be seen that very first requirement in s.385 is that the person had to have been “dismissed”. That term is defined in s.386:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[57] Section 396 of the Act requires a number of matters must be decided before considering the “merits” of an unfair dismissal application. The section provides:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

I would read the reference to the “merits” of an application as referring to the question of whether the dismissal alleged in the application was harsh, unjust or unreasonable.

[58] In this matter, Blueline’s case essentially consisted of two propositions:

(1) Blueline had never dismissed Mr Paterson.

(2) Mr Paterson was not a person protected from unfair dismissal because he had not completed the minimum employment period as required by s.382(a) of the Act. This was because he fell into the exclusion in s.384(2)(a) of the Act - that is, he was a casual employee, and his employment as such was not on a regular and systematic basis and he could not have had a reasonable expectation of continuing employment with Blueline on a regular and systematic basis.

[59] Having regard to ss.385 and 396, I consider that the issues arising for determination should be considered in the following order:

(1) Was Mr Paterson dismissed?

(2) If the answer to (1) is “yes”, decide the s.396 matters, which will include determining whether Mr Paterson was a person protected from unfair dismissal. The critical question here is: was Mr Paterson employed on a regular and systematic basis with a reasonable expectation of continuing employment on that basis?

(3) If the answer to the question in (2) is “yes”, was Mr Paterson’s dismissal harsh, unjust or unreasonable?

(4) If the answer to (3) is “yes”, what if any remedy should be ordered?

Was Mr Paterson dismissed?

[60] Blueline’s case on this issue appeared to involve two submissions. The first, namely that a casual worker cannot by definition be dismissed, can be rejected outright. Part 3-2 of the Act plainly contemplates that casual employees may qualify as persons protected from unfair dismissal if they have been employed on a regular and systematic basis and they have a reasonable expectation of continuing employment on a regular and systematic basis. Section 384(2) would be otiose if a casual employee can never be “dismissed” within the meaning of s.386, and there are many decisions of this tribunal in which casual employees have been found to have been dismissed for the purpose of the statutory unfair dismissal scheme.

[61] Blueline’s second submission is that it did not intend to and did not terminate its employment relationship with Mr Paterson on or around 23 January 2013; rather, it allocated him no work for some weeks because there was no truck for him to drive, but always intended to offer him work once a truck was available as evidenced by its emails of 26 February and 6 March 2013. Implicit in this submission was that it was Mr Paterson’s failure to respond to those emails which brought the employment relationship to an end.

[62] I reject this submission. I consider that Blueline took a number of actions in the period 15 to 29 January 2013 which demonstrated an intention to bring the employment relationship to an end:

(1) Blueline refused to allocate any work to Mr Paterson on or after 16 January 2013, notwithstanding that he was from that date medically cleared to return to pre-injury duties. Mr Douglass’s evidence was that on 15 January 2013 he told Mr Paterson that he did not want him to return to work until he had a “full clearance for normal duties”. That cannot be accepted as a genuine reason for the non-engagement of Mr Paterson, because the WorkCover certificate dated 15 January 2013 which was provided to Mr Douglass on that day gave him a clearance to return to pre-injury duties from 16 January 2013.

(2) On 23 January 2013, Mr Douglass refused to act on Mr Paterson’s further WorkCover medical certificate clearing him to return to pre-injury duties. The evidence was that Mr Douglass told Mr Paterson that he wanted to check that QBE, Blueline’s workers’ compensation insurer, was satisfied with the certificate first. This presumably would not have taken long to do. However, whether or not Mr Douglass ever did this, the evidence is clear that he never had any further communication with Mr Paterson concerning QBE’s view of the certification or anything else to do with Mr Paterson’s fitness to return to work.

(3) On 24 January 2013 Blueline took steps to obtain recovery of the SIM card which it had issued to Mr Paterson. This had been issued for the purpose of keeping in contact with Mr Paterson both in relation to the allocation and the performance of work. There is a conflict in the evidence as to the date upon which Mr Paterson returned the SIM card (he said on 24 January, Mr Douglass and Mr Golding said on 29 January), but this does not need to be resolved for present purposes. Leaving aside the question of whether the recovery of the SIM card was justified, I infer that Blueline in seeking to recover the SIM card no longer contemplated any need to remain in contact with Mr Paterson concerning the allocation and performance of work.

(4) On 25 January 2013, the truck allocated to Mr Paterson (AJ58QD) was finally repaired and available for work. To the extent that the unavailability of that truck was a reason as to why Mr Paterson was not given any work to do on or after 16 January 2013 when he was cleared to perform pre-injury duties, that reason no longer existed. However, the truck was immediately allocated to a driver other than Mr Paterson whose own allocated truck was under repair. This indicates there was work for the truck to do. Whether or not this allocation of AJ58QD was to achieve a fair spread of work and income amongst the casual drivers, as suggested by Mr Douglass and Mr Golding, the fact that on no version of the evidence was this ever explained to Mr Paterson causes me to infer that it was not intended by Blueline that Mr Paterson would be driving that truck again. It would have been a simple enough matter for Mr Douglass to tell Mr Paterson that the re-allocation of AJ58QD was only a temporary measure while the other two drivers’ trucks were being repaired, but instead, on Mr Douglass’s own evidence, he just told Mr Paterson: “We do not have a truck for you to drive”.

(5) On 25 January 2013 Blueline also recovered the gate key which, on Mr Douglass’s evidence, “goes with the truck”. I infer that the truck he referred to was AJ58QD. Whether or not the key was to be given to another driver, I regard this as indicative of a formed intention on the part of Blueline that Mr Paterson would not be driving AJ58QD again.

(6) On 29 January 2013, the evidence of Mr Douglass was that he suggested to Mr Paterson, in response to the latter’s concern about his financial future due to lack of work, that he should go on the dole. This is difficult to reconcile with any intention to continue an employment relationship with Mr Paterson.

(7) Later on 29 January 2013, Mr Douglass signed a Department of Social Security Separation Certificate in which he certified that Mr Paterson had been terminated due to shortage of work.

[63] Events subsequent to 29 January 2013 amply confirm that Blueline regarded itself as having terminated the employment relationship. The critical matter is that, as Blueline’s emails to Mr Paterson of 26 February and 6 March 2013 confirm, Blueline advertised a vacancy for the position of HR driver, and later filled that position by employing another person. It was clear from Mr Douglass’s evidence that the job being advertised was, in substance, that of driving truck AJ58QD, and that he regarded the new person employed as having replaced Mr Paterson.

[64] As earlier stated, the evidence of Mr Douglass and Mr Golding was to the effect that the emails of 26 February and 6 March 2013 constituted advice to Mr Paterson that there was now a truck available for him to drive, and were thus consistent with the continuation of the employment relationship. I do not accept that evidence, for the following reasons:

(1) The practice was that Mr Golding would contact casuals by telephone to inform them that they were to be allocated work. The emails, sent by Mr Douglass, were entirely inconsistent with this practice. Mr Golding could give no explanation for this.

(2) The emails, in terms, referred to Mr Paterson having an opportunity to apply for an advertised position with Blueline. This is entirely inconsistent with the proposition that Mr Paterson remained employed by Blueline.

(3) Mr Douglass’s evidence about what he intended by the emails was inconsistent with the terms of the emails themselves, was internally contradictory, and simply lacked credibility. For example, Mr Douglass initially agreed that Mr Paterson, if he had responded to the email, would have had to compete with other applicants. However, he then said that Mr Paterson would have had “first bite at the cherry”, and that “if he came in and saw us about the job he probably would have got the job”. Mr Douglass later said that if Mr Paterson had expressed interest, Blueline would have been saved the cost of the advertisement - meaning, presumably, that the advertisement had not been placed at the time of the email, and would never be placed if Mr Paterson wanted the position. However, the email of 6 March 2013 makes it clear that Mr Douglass had placed an advertisement for a HR driver’s position in the newspaper, that the advertisement would appear the following Monday, and that Mr Paterson was invited to apply by forwarding his resume to Mr Golding. I prefer the plain terms of the contemporaneous document to Mr Douglass’s attempts to gloss it in his evidence.

[65] In addition, there remains the simple fact that Mr Paterson was never offered any work to perform at any time after 29 January 2013, even though he was certified as fit to perform his pre-injury duties, his truck became available and there was work to perform. Nor, apart from the emails, was there any further contact between Blueline and Mr Paterson.

[66] I therefore find that Mr Paterson’s employment with Blueline was terminated on Blueline’s initiative, and therefore that Mr Paterson was “dismissed”, as defined in s.386 of the Act, by Blueline. Since the steps taken to effect the dismissal were not fully completed until 29 January 2013, I find that Mr Paterson’s dismissal took effect on or about that date.

Section 396 matters

[67] In relation to s.396(a), Mr Paterson’s application was filed on 6 February 2013. Given that I have found that his dismissal took effect on or about 29 January 2013, it is clear that his application was filed within the period specified in s.394(2)(a) (being 21 days).

[68] Leaving aside the question of whether Mr Paterson as a casual employee fell within the exclusion in s.384(2)(a), which I will consider separately, there was no issue in relation to s.396(b) that Mr Paterson would otherwise satisfy the requirements in s.382 to be a person protected from unfair dismissal. If his approximately 23 months of service as a casual employee did count for the purpose of the minimum employment period in s.383, then he had clearly satisfied the minimum employment period requirement in s.382(a). His annual earnings were less than the high income threshold, and his employment as a truck driver for a road transport company would have been covered by the Road Transport and Distribution Award 2010, so that the requirement in s.382(b) is satisfied.

[69] A difficulty arises with respect to the requirement in s.396(c), namely whether the dismissal was consistent with the Small Business Fair Dismissal Code (Code). Blueline did not contend that it was a small business employer as defined in s.23 of the Act. Upon an inquiry made by myself soon after the commencement of the determinative conference, Blueline asserted that it had more than 15 employees. 19 However, two matters put the position in doubt:

(1) In its “Employer’s Response to Application for Unfair Dismissal Remedy” (Form F3), Blueline asserted it had 15 drivers before 28/1/2013, and 14 drivers as at 6 February 2013.

(2) Blueline’s evidence demonstrated, as earlier stated, that all its drivers bar one were casuals.

[70] Blueline presumably had some employees other than drivers (including Mr Golding and perhaps Mr Douglass). I would infer however that the total number of employees would not greatly exceed 15. Section 23 defines a small business employer as one which, at a particular time, employs fewer than 15 employees; however, casual employees are not to be counted unless at the relevant time they are employed on a regular and systematic basis. Thus whether Blueline is a small business employer or not almost certainly depends upon whether the casual drivers other than Mr Paterson were employed on a regular and systematic basis or not. Although the evidence arguably gives rise to an inference that the other casual drivers were employed on the same basis as Mr Paterson, the lack of any evidence as to the pattern of their working hours makes it difficult to make any firm finding as to whether they were employed on a regular and systematic basis. Therefore the safest course is to consider whether, even if Blueline was a small business employer, it complied with the Code.

[71] The Code currently provides:

“Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[72] Blueline at no stage contended that Mr Paterson had committed serious misconduct justifying summary dismissal, and indeed specifically denied that he had done anything justifying dismissal. 20 Accordingly, the first paragraph of the Code is not relevant. The second paragraph, applying “in other cases”, requires the employer to give the employee a reason why he or she is at risk of being dismissed, and the reason must be a valid reason based on the employee’s conduct or capacity to do the job. On no view of the evidence did Blueline ever give any such reason to Mr Paterson, because it never acknowledged that it was dismissing him. Certainly Mr Paterson was advised that there was no work for him to do in January because there was no truck for him to drive, but this was never connected with any warning of dismissal. Therefore I find that Mr Paterson’s dismissal was not consistent with the Code.

[73] As to s.396(d), Blueline never clearly contended that Mr Paterson’s dismissal was a case of “genuine redundancy” as that expression is defined in s.389, consistent with its position that it never dismissed him at all. 21 In any event there is no basis to find that the dismissal constituted a genuine redundancy as defined. Section 389(1)(a) requires that, for there to be a genuine redundancy, the employer must have decided that it no longer required the person’s job to be performed by anyone. Here, the evidence demonstrates the contrary: as earlier discussed, Mr Paterson’s position as driver of AJ58QD was advertised after his dismissal, and filled.

Was Mr Paterson employed on a regular and systematic basis with a reasonable expectation of continuing employment on that basis?

[74] Blueline submitted that Mr Paterson had not been employed on a regular and systematic basis, and could not have had a reasonable expectation of continuing employment on a regular and systematic basis, because the method of allocation of work meant that there was never any certainty that any particular amount of work, or indeed any work, would be offered in the future, and because from time to time during his employment Mr Paterson received no work because of a vehicle breakdown or lack of work.

[75] I do not accept that submission. I find that Mr Paterson was employed on a regular and systematic basis, and during his service as a casual employee had a reasonable expectation of continuing employment by Blueline on a regular and systematic basis, for the following reasons:

(1) Until his first injury, Mr Paterson was employed on a regular basis for a substantial number of hours. His hours steadily increased over the period of his employment, so that in the weeks immediately before his first injury, Mr Paterson was averaging over 40 hours work per week. After Mr Paterson was certified as fit to perform pre-injury duties from 19 December 2012, he was allocated work until the second injury occurred on 21 December 2012.

(2) The structure of Blueline’s workforce meant that the casuals received, and could reasonably expect, regular work. Blueline had 15 drivers at the time of Mr Paterson’s dismissal, but only one of these was a permanent. Blueline therefore depended upon the casual employees to perform the bulk of its work and had an established system for the allocation of such work.

(3) The practice during the period of Mr Paterson’s employment was that he was at all times allocated a particular truck to drive, although which truck that was changed from time to time. Mr Paterson could therefore expect to be allocated the work required to be performed by that truck.

(4) Blueline made efforts to try and ensure a reasonably fair distribution of work amongst its casuals, and if there was no work for a driver, it would often get the driver to come into work, wash the trucks and receive four hours’ pay.

(5) Blueline’s issue of a SIM card to Mr Paterson indicated that it considered it had an ongoing need to remain in contact with him for work purposes.

[76] The occasions upon which Mr Paterson did not receive any work at all were infrequent and, except for one period in late January and early February 2012, of short duration. That is not sufficient to rebut the other matters pointing to regular and systematic employment identified above. In this respect, the analysis of the Full Bench in Shortland v The Smiths Snackfood Co Ltd 22 is apposite:

“[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.

[14] The Commissioner did not find that Mr Shortland’s employment was not continuous and correctly so. Prior to June 2009 Mr Shortland worked almost every week. There were a total of 4 isolated weeks in the period of almost three years prior to June 2009 when Mr Shortland performed no work. Those breaks should not be treated as a discontinuity in Mr Shortland’s employment such that periods of service before them should be discounted. The pattern of work disclosed by the evidence suggests that Mr Shortland’s employment in the period was regular and systematic. On any view, Mr Shortland had a reasonable expectation of continuing employment on a regular and systematic basis.”

[77] Mr Paterson’s service of 23 months as a casual employee therefore counts for the purpose of determining whether he served the minimum employment period specified in s.383. For the reasons stated in paragraph [68] above, Mr Paterson was therefore a person protected from unfair dismissal.

Was Mr Paterson’s dismissal harsh, unjust or unreasonable?

[78] Section 387 of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in turn below.

Paragraph 387(a)

[79] Blueline did not attempt to submit that there was any valid reason for Mr Paterson’s dismissal relating to his capacity or conduct. As earlier stated, Mr Douglass’s evidence was that “apart from the misuse of the mobile phone, Blueline never had any issues with Paterson’s performance as a casual truck driver”. In its opening submissions, Blueline eschewed any reliance on the mobile phone issue as constituting a valid reason for the dismissal. The following exchange occurred:

“THE VICE PRESIDENT: And just to be clear about this, with the SIM card you don't rely upon it now as a valid reason for dismissal or do you?

MR VILJOEN: No. My instructions are no, Vice-President.”

[80] Probably unnecessarily, the issue was raised again in closing submissions:

“THE VICE PRESIDENT: Do I take it therefore that you don't rely upon the SIM card matter as in any way forming a valid reason for dismissal?

MR VILJOEN: No. We maintain that that was not his - they had an issue with him, an isolated issue, which they addressed that one and advised him of. But as indicated there was no issue with his performance. We didn't have any issue with him being injured and certainly we were not going to in those circumstances make or try and get rid of him just because he abused his SIM card in those circumstances. It was taken away and as things were progressed he would have either be issued with a new on in due course when there was a truck available again, or he would have chosen another preferred way of communicating with our client.”

[81] In any event, the evidence is not sufficient to allow me to conclude that Mr Paterson did “abuse” the SIM card as suggested by Blueline. The fact that the mobile phone accounts put into evidence by Blueline appear to indicate that it was billed a fixed monthly amount for Mr Paterson’s usage tends to support his evidence that personal use of the mobile phone was allowed on the basis that, up to a certain limit, the phones had a fixed cost. Beyond this, no firm findings about the matter are possible given the lack of any evidence on the part of Blueline as to what rules governed the use of mobile phones by drivers.

[82] I find that there was no valid reason for Mr Paterson’s dismissal related to his capacity or conduct. If there was otherwise a legitimate reason for the dismissal not related to Mr Paterson’s capacity or conduct, this might be treated as a neutral matter in respect of my consideration as to whether Mr Paterson’s dismissal was harsh, unjust or unreasonable. 23 However, as I will come to, I do not consider that there was any other legitimate reason. Therefore the lack of a valid reason relating to Mr Paterson’s capacity or conduct must weigh heavily in favour of a conclusion that his dismissal was harsh, unjust or unreasonable.

Paragraphs 387(b) and (c)

[83] There being no valid reason for the dismissal relating to Mr Paterson’s capacity or conduct, the issues of notification of the reason and the provision of an opportunity to respond are not relevant.

Paragraph 387(d)

[84] There were no discussions relating to the dismissal, because Blueline never admitted to Mr Paterson that it was dismissing him. The issue of a support person being present is therefore not relevant.

Paragraph 387(e)

[85] The dismissal did not relate to any unsatisfactory performance by Mr Paterson.

Paragraphs 387(f) and (g)

[86] There were no “procedures” followed in dismissing Mr Paterson, because for the reasons earlier stated Blueline effectively dismissed Mr Paterson while at the same time not admitting that it was doing so. Accordingly, the small size of Blueline’s enterprise and its lack of a dedicated human resources management specialists or expertise are not relevant.

Paragraph 387(h)

[87] There remains the highly relevant question of what the actual reason for dismissal was. By having submitted that there was no dismissal at all, Blueline put itself in a difficult position to argue in the alternative that there was some legitimate reason for Mr Paterson’s dismissal. In its closing submissions, Blueline made a tentative attempt to suggest that the lack of any truck for Mr Paterson to drive constituted such a reason. 24 However, Blueline’s solicitor frankly conceded that such a proposition was difficult to reconcile with its primary case that it had never dismissed Mr Paterson and had advised him (by way of the email of 26 February) that there was now a truck available for him to drive. He admitted that he couldn’t “really argue it the other way around”25 and said (underlining added):

“... we maintain that the position was as we've put it, that that's the only reason. There wasn't - and when it became available we did advise him. Unfortunately if it turns on its head there's no other way of arguing it. We can't then suddenly say - because it just wouldn't make sense. It wouldn't make sense to then dismiss somebody if a truck would become available, so I can't say anything more or higher than that.” 26

[88] Mr Paterson’s pre-existing casual employment relationship contemplated that from time to time he might not be allocated work because of the unavailability of a truck for him to drive. In that context, the fact that at a particular point in time there was no truck for him to drive could not therefore constitute a legitimate reason for his dismissal unless that had become a permanent state of affairs. Even accepting the evidence of Mr Douglass and Mr Golding that truck AJ58QD had after 25 January 2013 reasonably been allocated, in the interests of a fair distribution of work, to two other drivers whose own trucks were being repaired, that was only ever going to be a temporary state of affairs. Truck AJ58QD was always going to become available again for Mr Paterson to drive once the other two drivers’ trucks were available for work again. At that point, work on that truck could simply have been allocated to Mr Paterson in accordance with the normal practice. But that is not what happened. I cannot therefore find that any lack of a truck for Mr Paterson as at the date of dismissal constituted a legitimate reason to dismiss him. That is a matter which weighs significantly in favour of a finding that Mr Paterson’s dismissal was harsh, unjust or unreasonable.

[89] Mr Paterson submitted that the real reason for his dismissal was that he had become a “liability” by reasons of his two injuries and that “taking him off the books would have been the easiest thing to do in that respect”. I accept that there is some evidence that inferentially supports that submission. On Mr Douglass’s own evidence, he expressed resistance to the notion that Blueline should be liable in respect of both the first and second injuries, he sent Mr Paterson home in December 2012 while he was on a return-to-work program because he realised that he would have to pay part of Mr Paterson’s wages at a time when he had little work for him to do, and he refused to allow Mr Paterson to return to work on or after 16 January 2013 despite Mr Paterson being cleared to return to pre-injury duties. However, I am not prepared to make a positive finding in this respect as urged by Mr Paterson for two reasons. The first is that, if Mr Paterson is correct, Blueline has almost certainly committed an offence under s.248 of the Workers’ Compensation Act 1987 (NSW) in dismissing Mr Paterson. I would not make a finding of that nature unless there was clear evidence to support it 27, and I do not consider that the evidence as to this matter reaches that level. The second is that it was never squarely put to Mr Douglass or Mr Golding that Mr Paterson was dismissed for the reason alleged,28 nor was this clearly raised in submissions until Mr Paterson’s solicitor made her reply submissions.29 Therefore I do not consider that Blueline was given a fair opportunity to respond to this allegation.

[90] However, it is clear that Blueline did not disclose the real reason for the dismissal. The inference I draw from that is that disclosure of the real reason would not have assisted Blueline’s case. That is also a matter which must weigh heavily in favour of a finding that Mr Paterson’s dismissal was harsh, unjust or unreasonable. It also follows that Mr Paterson was never given any opportunity to respond to whatever concern Blueline had about him prior to his dismissal, which also weighs in his favour.

Conclusion

[91] I find that Mr Paterson’s dismissal by Blueline was harsh, unjust and unreasonable for the following reasons:

(1) There was no valid reason for his dismissal based on his capacity or conduct.

(2) There was no other identifiable legitimate reason for his dismissal.

(3) Although the real reason for the dismissal cannot positively be identified, the failure of Blueline to disclose it leads to the inference that it would not have assisted Blueline’s case, and also requires the conclusion that Mr Paterson was denied procedural fairness in respect of that reason.

Remedy

[92] Mr Paterson did not seek reinstatement, on the basis that there had been a “breakdown in trust in the relationship”. 30 Blueline did not have any in-principle objection to Mr Paterson returning to Blueline as part of its pool of casuals, but at the time of the hearing there was no truck for him to drive because he had been replaced as a result of the recruitment process in early March 2013. Taking into account those matters in the context of the small-scale nature of Blueline’s business, I am satisfied for the purpose of s.390(3)(a) that an order for reinstatement would be inappropriate.

[93] Mr Paterson sought a compensation order under s.392. I consider, for the purpose of s.390(3)(b), that a compensation order is appropriate in the circumstances of the case. It is apparent that Mr Paterson has suffered loss of income and unemployment as a result of his unfair dismissal.

[94] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Paterson. I was not greatly assisted by the submissions of the parties in this respect, so I shall have to do the best I can on the material before me. In assessing compensation, I am required by s.392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a)-(g) of the subsection. In undertaking this task, I shall use the long-established methodology for assessing compensation in unfair dismissal cases which was most recently elaborated upon in the context of the current Act in Bowden v Ottrey Homes Cobram and District Retirement Villages 31.

Remuneration that would have been received (s.392(2)(c))

[95] I estimate that had Mr Paterson not been dismissed, he would have continued to be employed by Blueline for about five months (or 22 weeks). His previous good performance, and the fact that his truck AJ58QD continues to be driven by another driver, would considered alone suggest that he would have been employed for a longer period, perhaps until retirement age. However, Mr Paterson’s evidence that he has suffered “complications” with his hand injury, which caused him to be exempted from Newstart allowance job search requirements and which led to him not being employed beyond the trial period at Bingo Bins, suggests that sooner or later he would have been dismissed by Blueline on the basis that he could not perform the physical requirements of the job. Under s.248 of the Workers Compensation Act, the prohibition on dismissal because of an injury ends after 6 months from the date of unfitness for employment because of the injury. The hand injury was suffered on 21 December 2012, meaning that dismissal because of the injury might legally have occurred towards the end of June 2013.

[96] Based on past patterns of engagement, Mr Paterson would have worked an average of approximately 33 hours per week over that period. 32 This takes into account periods he would not have worked due to any truck breakdowns or lack of work. Mr Paterson’s hourly rate of pay as a casual heavy rigid truck driver was said by Blueline to be $21.71. That rate of pay does not appear to be correct. Under the Award, Mr Paterson would have been classified as a Grade 3, or more likely a Grade 4 or 5 Transport Worker. Taking a conservative approach, I will use the hourly rate for a casual Grade 3 transport worker, being $22.50 per hour.33 Therefore, during an additional 22 weeks of employment, Mr Paterson would have earned $16,335.00 (22 x 33 x $22.50) on the assumption of award compliance.

Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))

[97] As earlier stated, Mr Paterson began receiving the Newstart allowance of $490.00 per fortnight in early February 2013. He also earned $1,600.00 at Bingo Bins after tax, which I will estimate as $2,000 as a pre-tax figure. Taking into account a short initial period without the Newstart allowance, and the 8 days working for Bingo Bins, I estimate that in the 22 week period I have estimated, Mr Paterson received the Newstart allowance for a total of 20 weeks. His total Newstart earnings over the period would therefore be $4900.00 (10 x $490.00), and adding the Bingo Bins earnings, would amount to $6900.00. Deducted from the starting point of $16,335.00, this leaves a figure of $9,435.00.

Other matters (s.392(2)(g))

[98] I do not consider that there should be any further deductions for “contingencies”, given that the projected continued employment period has now entirely passed. I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.

Viability (s.392(2)(a))

[99] There was no evidence or submission that any particular amount of compensation would affect the viability of the Blueline enterprise. No adjustment will be made on this account.

Length of service (s.392(2)(b))

[100] I consider that Mr Paterson’s length of service (23 months) does not justify any increase or reduction to the amount of compensation otherwise payable.

Mitigation efforts (s.392(2)(d))

[101] The evidence demonstrates that Mr Paterson made serious efforts to obtain alternative employment, and did obtain a short period of employment with Bingo Bins. However Blueline submitted that Mr Paterson’s failure to respond to the emails of 26 February and 6 March 2013 inviting him to apply for his job back meant that he missed an opportunity to entirely mitigate his loss from about early March 2013.

[102] The difficulty with this submission, having regard to my earlier findings, is that Mr Paterson was only being given an opportunity to apply for the job. Given that I have found that Mr Paterson was dismissed for a reason which was never disclosed, and further that if Blueline wanted really Mr Paterson back it only had to ring him and allocate him work, a sceptical approach is justified in assessing the chances of Mr Paterson being re-appointed to his old job had he applied. As earlier stated, I do not accept Mr Douglass’s evidence that he was being offered “first bite of the cherry”. Mr Paterson did not say anything in his evidence about why he did not respond to the emails. In the circumstances, I will make a 10% deduction to the compensation amount to allow for the possibility that if Mr Paterson had responded to the emails he might have been allocated some work as a result. This brings the amount down to $8,491.50.

Misconduct (s.392(3))

[103] Mr Paterson did not commit any misconduct, so this has no relevance to the assessment of compensation.

Compensation cap (s.392(5))

[104] The amount of $8,491.50 is below the compensation cap.

Instalments (s.393)

[105] There was no submission that any compensation amount should be payable by instalments, and I do not consider that payments by instalments is warranted.

Conclusion

[106] I will order that Blueline pay Mr Paterson the amount of $8,491.50, less any taxation amounts required to be deducted by law, as compensation for his harsh, unjust and unreasonable dismissal. The amount shall be payable within 14 days of the date of this decision. A separate order to this effect will be issued at the same time as this decision.

VICE PRESIDENT

Appearances:

Ms V. Mishriki solicitor for the Applicant.

Mr G. Viljoen solicitor for the Respondent.

Hearing details:

Sydney,

5 August

2013.

1 See s.596(2)(b)

2 Exhibit 1

3 Exhibit 1 paragraph 4

4 PN112

5 Exhibit 3

6 PN277

7 PN123

8 PN155

9 PN181

10 PNs208-211

11 Exhibits 4 and 5 respectively.

12 PNs528-529

13 PN617

14 PN698

15 PNs712-716

16 PNs722-724

17 PN905

18 PNs906-910

19 PNs27-28

20 PN988

21 Blueline made a tentative mention of “redundancy” in its closing submissions, but then backtracked on this - see PNs1022-1033.

22 [2010] FWAFB 5709

23 As it was, for example, in UES (Int’l) Pty Ltd v Harvey [2012] FWAFB 5241 at [42].

24 PNs1022-1023

25 PN1025

26 PN1033

27 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 ; (1992) 110 ALR 449 at 449-450 per Mason CJ and Brennan, Deane and Gaudron JJ.

28 The question asked of Mr Douglass at PNs660-661 appears to relate to Mr Paterson being sent home in December 2012; certainly it was understood that way by Mr Douglass, and the matter was not further clarified.

29 PNs1042-1045

30 PN50

31 [2013] FWCFB 431

32 If the hand injury had prevented him from working during this five month period, he would have received workers’ compensation benefits of a roughly equivalent amount.

33 The rate would not be significantly different if a transitional rate applied.

Printed by authority of the Commonwealth Government Printer