Singh and Ron Finemore Transport Services Pty Ltd (Compensation)
[2022] AATA 344
•1 March 2022
Singh and Ron Finemore Transport Services Pty Ltd (Compensation) [2022] AATA 344 (1 March 2022)
Division:GENERAL DIVISION
File Number(s): 2020/6743
Re:Mr Singh
APPLICANT
Ron Finemore Transport Services Pty LtdAnd
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO, Member
Date:1 March 2022
Place:Melbourne
The Tribunal affirms the decision under review.
..............................[sgd]..........................................
Ms A E Burke AO, Member
Catchwords
COMPENSATION – accepted anxiety contributed to a significant degree by employment –– whether reasonable administrative action exclusion applies – condition arose from reasonable administrative action undertaken reasonably – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
Comcare v Drinkwater (2018) 260 FCR 150
Comcare v Martin (2016) 258 CLR 467
Comcare v Stewart [2019] FCA 365
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
O'Callaghan and Comcare (Compensation) [2019] AATA 4378Trewin v Comcare [1998] FCA 713
REASONS FOR DECISION
Ms A E Burke AO, Member
1 March 2022
BACKGROUND
Mr Singh applied for a review of a decision by the Independent Review Officer of Ron Finemore Transport Services Pty Ltd (RFTS) dated 3 September 2020 which denied liability for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). This determination accepted that Mr Singh suffered from anxiety which was contributed to by a significant degree by his employment with RFTS, however found he was excluded from any entitlements as a result of the operation of the provisions set out in section 5A of the Act.
Mr Singh’s application for review dated 31 October 2020 stated:
I was suffering by Mental health problem many things was not discussed by my employer regarding my employer.
18 June 2020 when incident happened a local driver was available and ready to unload my trailer ready to unload my trailer but Jasmine my supervisor forcely and bullied me on 18th June 2020. due to my mental health issue i also not mentioned that issue in my statements. I am still taking medical treatment but recovering. My employer did not reviewed the whole incident fairly.my both supervisor Mat and Jasmine covering each other on their mistake. and giving statements on own favours I didn't get paid 4 months not even paid for my medical bills and even the work I did under the suitable duties. I can provide all my medical documents regarding my mental health. thank you.
At the time of the incident Mr Singh’s was a casual linehaul driver at RFTS, working out of the Derrimut office and traveling between Melbourne and Adelaide three times a week. Mr Singh’s role involved loading and unloading trailers, utilising proper handling techniques, and maintaining accurate completion of paperwork related to freight movements.
Mr Singh’s duties required him to depart RFTS’s premises in Derrimut at 7am Monday, Wednesday and Friday each week, delivering to Woolworths Gepps Cross South Australia at 6pm and re-loading at Smiths, Regency Park at 8pm. Mr Singh would then return from South Australia each Tuesday, Thursday and Saturday, arriving at 4pm originally at Woolworths Broadmeadows, then from early 2020, Woolworths Dandenong South Distribution Centre.
On 23 June 2020, Dr Mohammad Hossain, general practitioner, certified that Mr Singh was suffering from ‘stress, insomnia, anxiety due to workplace issues’.
On 26 July 2020, Ms Lubna Atif, registered psychologist, opined:
Jaswant has presented with symptoms of significant anxiety. He has provided a detailed account of the incident that occurred in his workplace in June '20 and attributes his current symptoms to that event. He is feeling agitated, resentful and lacks sleep and concentration. He is struggling to sustain independent living due to his symptoms and hence informed that he has moved to live with his friend for support. Mr Jaswant will require ongoing counselling to help address his symptoms and restore psychological well-being. He informed he had no previous history of mental health related problems
There was no dispute between the parties that Mr Singh’s anxiety arose in the context of his request to have assistance with unloading his vehicle on 18 June 2020 so he could leave work early to attend a personal appointment.
The dispute between the parties is whether the actions of Mr Singh’s supervisors, Ms Brocklehurst and Mr Bonfield, were ‘reasonable administrative action taken in a reasonable manner’ in respect of Mr Singh’s employment. This is significant because it is an essential precondition to the exclusionary provision in section 5A(1) of the Act which, if made out, excludes Mr Singh’s claim for compensation.
LEGISLATIVE FRAMEWORK
As a licensee, RFTS’s liability for compensation for work-related conditions arises under section 14 of the Act, should an employee suffer an injury which results in death, incapacity for work, or impairment.
Injury is defined in section 5A as:
(1) …
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonably done in connection with an action mentioned in paragraph (a), (b), (c), or (d);
(f) anything reasonably done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Disease is defined in section 5B as:
(1) …
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
…
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
Ailment is defined in section 4 as meaning: ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
A psychological condition can be considered as either a mental injury pursuant to section 5A(1)(b) or an aggravation thereof, or a disease, by way of being understood as an ailment pursuant to sections 4 and 5B(1)(a) or an aggravation thereof. However, to be considered a disease, the ailment must have been contributed to, to a significant degree, by the employee’s employment. If this threshold is met, or if the condition is considered an injury, then it is necessary to consider whether the exclusion of reasonable administrative action under section 5A(1) applies.
ISSUES
The key issues for determination are:
(a)Did Mr Singh suffer from a ‘disease’ for the purposes of s 5A(1) and s 5B of the Act?
(b)If so, was the ‘disease’ suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, such that the exclusionary proviso in section 5A(1) of the Act applies?
EVIDENCE BEFORE THE TRIBUNAL
The independent review officer’s decision of 3 September 2020 sets out the events of 18 June 2020, the findings of the investigation into the incident, and consideration of Mr Singh’s claim:
In emails dated 22 June 2020 and 1 September 2020 Mr Bonfield set out that you had telephoned him and requested assistance to get your trailers unloaded as you had an appointment. Mr Bonfield informed you initially that he would see what he could do with respect to arranging assistance with getting your trailer unloaded however if he could not get anyone you would need to return after your appointment. Mr Bonfield then made enquiries as to who may have been available in Melbourne to assist. No-one was available and as a result Mr Bonfield telephoned you and confirmed that he could not get the trailers unloaded by someone else so you would need to unload them following your appointment.
The following day you asked Mr Bonfield again whether he could arrange someone else to unload your trailers on 18 June 2020. Mr Bonfield again explored with other drivers their availability to provide assistance and he also checked with RFTS's Wagga Wagga team if they had someone in Melbourne on 18 June 2020 who could assist. Again, Mr Bonfield was unable to obtain the assistance of any other driver to unload your trailers on 18 June 2020. On 18 June 2020 you again telephoned and requested someone else to unload your trailers. Mr Bonfield told you that you would need to unload your own trailers. You became argumentative and resistant despite Mr Bonfield giving you clear instruction and as a result Ms Brocklehurst assumed carriage of the phone call on Mr Bonfield's behalf as he was still training in the position.
Ms Brocklehurst also provided an email in response to your claim. She refutes that she was abusive or aggressive towards you. Ms Brocklehurst noted that despite previously being told that there was no one to assist with unloading your trailers you sent an email to Mr Bonfield asking for them to be unloaded. Ms Brocklehurst agreed that she told you:
It was your job and you were required to unload the trailers;
You were to go to your appointment and come back and unload;
In future if you have appointments you are required to take a day off;
Do not call with two days' notice making demands;
Your lime slot is 4pm and this cannot be changed;
Unloading the trailer is a requirement of your job.
An investigation was carried out by Mr Shane Tucker on 2 July 2020 to determine the circumstances around your conversations with Ms Brocklehurst and Mr Bonfield on 18 June 2020 and to determine whether the actions or nature of the conversations could be considered to be workplace bullying.
The investigation found the following:
When you first contacted operations staff on 15 June to request another driver complete the unloading of your trailer on 18 June, you were told there were not any spare drivers available;
You are employed as a casual linehaul driver and you undertake three trips per week from Melbourne to Adelaide. You are rostered to unload at MSRDC at 4pm on a Thursday (18 June 2020 was a Thursday);
You sent an email on 16 June 2020 with the same request and on 18 June 2020 you again contacted the operations office to request another driver unload your trailers;
You were told that you were required to return to work following your appointment and complete the delivery. You subsequently did this although you were delayed due to an incident on the Monash Freeway;
As a result of your appointment on 18 June the delivery had to be re-booked and the rosters had to be adjusted;
You ran out of hours whilst at the MSRDC and you decided to sleep in your truck, but you had no food or water. Mr Tucker confirmed with you that you lived only a short distance (15-minute drive) from the MSRDC and he questioned you as to why you did not return home for your rest break. You were unable to provide a reason for this;
Your work diaries for the period 11 May 2020 to 11 June 2020 were reviewed and the entries were consistent with your roster. With the exception of one Thursday you finished your shift on a Thursday between 5pm and 8pm within Basic Fatigue Management Standards;
Ms Brocklehurst was requested to provide her account of the incident. This response is set out above. Ms Brocklehurst confirmed that you were upset and yelling on the telephone on 18 June 2020 and described her tone of voice as strong;
Mr Bonfield was requested to provide his account of the incident which is also set out above. Mr Bonfield confirmed that he had attempted to locate another driver but could not find a spare driver to unload your trailer on 18 June 2020. He agreed that you were argumentative towards him and Ms Brocklehurst;
Mr Tucker interviewed you on 2 July 2020 about your claim. You were informed you could have a support person present but you declined this offer. Mr Tucker explained the process to you;
You provided Mr Tucker with a version of events that was consistent with the statement attached to your claim form. You also raised issues regarding your vehicle being limited to 96kph, timeslots and pay discrepancies. You confirmed that you felt bullied and stressed as a result of the conversation with Ms Brocklehurst;
You told Mr Tucker that you are a good worker and you should have been given help with the trailer. You stated that your behaviour was acceptable, and that Ms Brocklehurst should not have told you that your behaviour was unacceptable;
You informed Mr Tucker that you would return to work when the doctor said that you could and that you knew your rights. When Mr Tucker queried what you meant by this you told him that he was a company man and that you were going to the Union;
You also raised the issue of your suitable duties and you stated that you should be given better duties. Mr Tucker discussed the fact that there were duties available in Wodonga RFTS however you had requested to stay in Melbourne to be close to your family. You then disclosed that your partner was in England and the rest of your family was in India;
You subsequently became aggressive towards Mr Tucker and told him that you knew the law and your rights. You reiterated that you were speaking with the Union and then left the room;
The Investigation report concluded that:
the versions of events in the statements and business records were consistent without major discrepancy;
You were working regular duties set out in a documented roster;
You made a personal appointment at a time you would normally be expected to work;
You requested another driver to finish your shift. Your request was acknowledged but another driver was not available and this was communicated to you;
On 18 June 2020 you again requested assistance to unload your trailer however arrangements were made and agreed to by all parties for you to return after your appointment and complete the delivery;
On 19 and 20 June 2020 you completed a trip from Melbourne to Adelaide and return;
You were given a reasonable management direction by Ms Brocklehurst, the language used in the conversation did not constitute workplace bullying as it was not repeated, unreasonable or a risk to health and safety;
Your decision to sleep in your vehicle at the MSRDC was not a reasonable decision given the proximity to your residence and you did not contact the operations team or take reasonable steps to manage your fatigue.
Consideration
Exclusionary provisions
Liability for an injury is excluded if it is suffered as a result of reasonable administrative action, taken in a reasonable manner in respect of an employee's employment under section 5A(2) of the Act.
In your claim form you allege that your injury arose as a result of bullying by your supervisor who shouted at you over the phone. Your hand-written statement provides further insight into the incident as a whole and it appears to have commenced on 15 June 2020 when you first requested someone else to unload your trailers. You state that you did not receive a response from Mr Bonfield in relation to your request to have someone else unload your trailers on 18 June 2020. However, Mr Bonfield has stated that he told you over the phone on 15 June 2020 that he would check and see if there were any other drivers available to unload your trailer. Mr Bonfield subsequently telephoned you back and informed you that there was no-one else available and that you would need to unload your trailers yourself. Mr Bonfield told you that he would make arrangements with the DC to re-book your slot so that you could unload the trailers after your appointment. In the following days you made further requests of Mr Bonfield to have someone else unload your trailers on 18 June 2020 and again, after making enquiries, Mr Bonfield told you on 18 June 2020 that there was no availability for an alternate driver to do this task, and further confirmed with you that you would be required to return after your appointment to complete the unloading. You became argumentative with Mr Bonfield during this telephone call and as a result Ms Brocklehurst entered the conversation in place of Mr Bonfield as Mr Bonfield was still being trained in his position. Ms Brocklehurst agrees that she told you that it was your job to unload your trailers and that you would need to return after your appointment to do so.
Reasonable administrative action includes anything reasonable done in connection with the employee's failure to obtain a benefit in connection with his or her employment (s5A(2)(f) of the Act). I am satisfied that the declinature of your request to have another driver unload your trailers on 18 June 2020 and the direction that you return to work and unload the trailers after your appointment was an administrative action taken by Mr Bonfield (and confirmed by Ms Brocklehurst) in connection with your employment. The benefit that you were seeking was to be able to finish work early on 18 June 2020 without completing your duties and without losing any time from your leave balances.
I have had regard to your statement, the investigation report and the statements of Mr Bonfield and Ms Brocklehurst in considering the manner in which this administrative action was undertaken. I find that there is no evidence to support your allegations that you were bullied by either Mr Bonfield or Ms Brocklehurst during 15 to 18 June 2020. Ms Brocklehurst has agreed that her tone of voice was 'strong' on the telephone call on 18 June 2020 in response to your own demeanour which was described as being 'upset and yelling'. Mr Bonfield has also stated that you were being argumentative on 18 June 2020. As such I find that Ms Brocklehurst and Mr Bonfield's actions in discussing the requirement for you to unload your own trailers to have been taken in a reasonable manner.
…..
I therefore consider that the exclusionary provisions apply to exclude liability in respect of your claim.
Mr Singh’s statement of 17 March 2021:
My Name is Jaswant Singh and was working as inter state truck driver for RON Finemore Transport. I am giving this statement to Administrative Appeal Tribunal. Due to bullying and misbehave by Supervisor I suffered mental injury. I am writing in detail whole incident.
·I informed Matt (Supervisor) via phone 15 June 2020 and Via email on 16 June 2020 that I have appointment with VIC Roads on 18 June afternoon around 3 pm so I am unable to unload the trailers in this circumstances. In the mean time I also informed the local driver Varinder Singh about my appointment with Vic Roads and also requested for unloading the trailers and he agreed to unloading the trailers. Here I am mentioning that before that we was doing the same way. We were helping each other. He unloaded my trailer three times before this way.
·I didn't receive any call/text or email by supervisor regarding my email I assumed that he organised my trailers unloading. I also was in touch with Varinder Singh and I informed him estimated arrival time.
·On 18th June 2020 I called Matt and Informed him that Truck and trailers are in yard and I had to go Vic Roads and also sort the other things out. The local driver Varinder Singh was in Yard I also informed him.
·Matt informed me that he doesn't have any other driver and he told me I had to unload the trailers.
·I responded Matt that I notified you three days before and you should have responded earlier I also have sort other things out. Also I mentioned to him I am on job Monday to Saturday until the unload trailer so that's way I sort other thing out in the time that I took off from work. I used to come home Tuesday, Thursday and Saturday after 7pm weekdays so can't do the other things. I also told Matt that I am going to Adelaide again next Morning so I can’t unload the trailers because of Work Diary Law. When I check with Varinder Singh Local driver he shocked and told me that Matt didn't passed him any instructions to unload my trailers. I asked Matt again why he did not respond to my email earlier so I could re arrange my appointment and other things.
·Jasmine then took over the phone call she starts shouting and bullying me saying listening me
'Stop stop stop"
This is your job you have to do
This is your contract.
Matt is new he is learning.
Your behaviour is not acceptable. She also threatens me you will lose the job. She also used many other slangs words for me in loudly.
·This whole incident was very stressful for me and it was also scary me.
·I came back to work after my appointment and unloaded the trailers.
·I stuck in Woolworths DC Dandenong South slept in truck without food due to my work hours (log Book) was finished. I could not sleep proper that night due this stress.
·I completed my next Adelaide trip very hard. I was very stressed and nervous. I did many mistakes. It was very hard to me concentrating on long distance driving in this situation. By end of this trip I decided to see doctor and I informed my Manager Stuart Mckay by email about my situation that I am unable to continue my job with Ron Finemore Transport.
·After that I went through the medical treatment by Dr. Hussain. I did some light duty work, but Ron Finemore Transport did not co-operate with me regarding my back to work. RFT refused my compensation claim. Even RFT didn't pay me for light duty work that I done. After this incident I took the medical treatment from my own expensive. Due this whole incident I lost income and financial loses and this incident damaged my medical and work history. I am experiencing lots of difficulties to getting new job due this past injury.
I understand that a person who intentionally makes a false statement in statuary declaration is guilty of an offence and that the statements in this declaration are true in every particular.
Mr Bonfield’s statement of 1 April 2021:
1.My name is Matthew Bonfield and I was previously employed by the Respondent as Operations Supervisor. I held that position for approximately two and a half years. I have 20 years’ experience in transport ranging from driving heavy vehicles to working as an Operations Manager and Supervisor.
2. I have never met the Applicant in person and I believe I would have spoken to him on less than 10 occasions before the incident in June 2020 at which time I had been working in the allocating role for less than one week.
3. I recall that around 15 or 16 June 2020 the Applicant telephoned me and asked me to make alternative arrangements for unloading his trailers the following Thursday, 18 June 2020 as he had made a personal appointment that he had to attend during his normal work hours. I told the Applicant that I would see what I could do in terms of organising someone else to unload his trailer but that if I could not find anyone to do it he would have to return after his appointment and do the unloading himself.
4. Following this phone call I made what I estimate to be approximately 10 or 12 calls to various drivers in Wagga, Melbourne and Albury to see if anyone was going to be available on 18 June 2020 to unload the trailers. I was unable to locate anyone who could assist.
5. I believe I telephoned Varinder Singh, a local driver for the Respondent in Melbourne but I cannot remember with any clarity the detail of that conversation. I am informed that the Applicant has stated that he had requested Varinder Singh to unload his trailers for him on 18 June 2020 and Varinder had agreed to do this. If this is true I do not understand why the Applicant would not have informed me that he had made these arrangements, especially when I had told him I would try and find someone.
6. I recall that I spoke with Jasmine Brocklehurst, Operations Supervisor, who was helping to train me in the allocating position about the situation. She said to me words to the effect that if I could not find anyone to do the unloading the Applicant would need to return following his appointment and do the task himself. I remember that Jasmine was quite straightforward about that issue and I understood that that was because unloading trailers is a normal part of a truck drivers’ duties.
7.Whilst I was working with the Respondent I am aware that the Operations team always tried to assist the drivers and to be as flexible as possible however there were contractual obligations to the Respondent’s clients which meant that some requirements were fixed, including delivery slot times.
8. I recall that the Applicant sent me an email the day after the phone conversation reiterating that he had an appointment with Vic Roads at 3pm on 18 June 2020 and as such he needed help with unloading his trailers. I am informed that that email appears at T11 of the Tribunal Documents.
9. After I made the various phone calls over the course of a day or two I informed the Applicant that I had not been able to find anyone to assist with unloading his trailers and therefore he would have to return after his appointment to do so. I am informed that a copy of my email to Georgia Turton dated 1 September 2020 relating to this appears at T37 of the Tribunal Documents.
10. On 18 June 2020 the Applicant telephoned me again about this issue. He came across as being frustrated during this conversation and I would describe his demeanour as worked up. He raised his voice to me during the conversation and I was unable to make any headway in the conversation in explaining to him that I had tried to obtain assistance for him but no-one was available.
11. Whilst I was talking to the Applicant on 18 June 2020, Jasmine Brocklehurst was sitting beside me. Due to the nature of the conversation Jasmine asked whether she could speak to him. I transferred the telephone call to Jasmine.
12. I would describe Jasmine as being a very direct person but she is not impolite. During the telephone conversation I did not hear Jasmine yell at the Applicant. I would describe her tone of voice as firm but direct. She remained quite calm during the conversation. I recall that Jasmine told the Applicant that it was part of his duties to unload his trailers and as we had not been able to find anyone to assist he had to return after his appointment and unload. I do not recall Jasmine using any slang language towards the Applicant and I cannot recall her threatening the Applicant’s job over the issue.
13 I had previously had a discussion with the Applicant the weekend before where the safety system in the truck had picked up too many distractions with the Applicant being on his mobile telephone. I had told the Applicant about this and told him there was evidence he was partaking in illegal phone usage whilst he was driving his heavy vehicle. I would describe the Applicant as having been unhappy with that conversation and unhappy with me as a result. I am informed that a copy of my email to Stuart McKie in relation to this issue appears at T15 of the Tribunal Documents.
Ms Brocklehurst’s statement of 9 April 2021:
1. My name is Jasmine Brocklehurst and I am employed by the Respondent as Operations Supervisor. I have held that position for almost three years.
2. I have never met the Applicant in person however I had cause to speak to the Applicant on multiple occasions each week whilst undertaking my job. Depending on how our shifts rotated l estimate that l probably spoke with the Applicant in the course of my duties around three to four times per week.
3. I have experienced some difficulties with the Applicant complaining about errors and resultant delays in his day to day schedule. I recall in approximately May 2020 he wanted to change his work timeslots but the Respondent was unable to accommodate this on a regular basis due to its national contract with Woolworths. The Applicant at that stage indicated that he may commence looking for alternative employment. I am informed that a copy of the email trail relating to that issue appears at T9 of the Tribunal Documents.
4. At this time I was working closely with the Applicant's supervisor, Mr Matthew Bonfield, training him in the operations role he had recently commenced in. I recall that around 15 or 16 June 2020 the Applicant telephoned Matthew and asked him to find someone to unload his trailers the following Thursday (two days away) as he had an appointment to go to. At the time I told Matthew that we did not have other drivers available who could do this and that the Applicant would have to return and do the unloading after his appointment. I recall that Matthew told the Applicant he would check on availability but also conveyed what I had told him, that it was unlikely anyone would be available to do the task.
5. Following this telephone conversation the Applicant sent Matthew an email confirming his request that Matthew find an alternate driver to unload his trailers. I am informed that a copy of that email appears at T11 of the Tribunal Documents.
6. I recall that on 18 June 2020 the Applicant made a telephone call to his supervisor Mr Matthew Bonfield. I was sitting next to Matthew whilst he took the phone call. During that telephone call I felt that the conversation with Matthew and the Applicant was going around in circles and as Matthew had only been in the operations role for a couple of days l asked to speak with the Applicant.
7.When I started talking to the Applicant l would describe his demeanour as annoyed. He was talking in a tone which was more heated than normal and during my conversation with him he raised his voice to me. In order to bring the conversation under control l matched his tone. I did not yell at the Applicant. I used what I would describe as a firm tone with him.
8. I told the Applicant the following things:
(a) That part of his duties as a truck driver was to unload his trailers;
(b) He had booked a personal appointment in his usual working hours and had not applied to take leave for that time. As such I told him it was his responsibility to return after his appointment to unload his trailers;
(c) In the future if he had appointments which occurred in work hours he had to take leave;
(d) It was not acceptable for him to telephone the Respondent with a couple of days' notice demanding that it find alternatives for unloading his trailers;
(e) His delivery timeslot was 4pm and this could not be changed as it was part of the Respondent's contract with Woolworths.
9. I absolutely refute that I threatened the Applicant's job during this telephone conversation.
10. I also refute that I used slang words directed at the Applicant during this conversation. It is not part of my normal speech to use slang words towards drivers or in my general conversation. I am informed that an email I wrote to Stuart McKie on 22 June 2020 with my contemporaneous recollection of the conversation appears at T14 of the Tribunal Documents.
11. In my experience most drivers make their personal appointments outside of their work hours. In the event that an appointment falls within their usual hours the Operations area of the Respondent has received requests that we organise another driver to unload that driver's trailers. On those occasions I have told the other drivers the same thing that I told the Applicant, that is, that it is a requirement of their position that they undertake that task and that if no-one else can be located to do the unloading they would need to return after their appointment to unload the trailer.
12. As occurred in this case the Operations team would always try and locate an alternate driver to assist however the Respondent did not always have the resources to allow that to happen. At other times we did and we made the appropriate arrangements.
13. I am aware of a local driver who is employed by the Respondent in Melbourne. His name is Varinder Singh and his duties include moving trailers in a local radius from Mulgrove DC to Derrimut. Part of his standard duties was to unload the night drivers' trailers. He did not unload day drivers' trailers as part of his standard duties although there were probably times where he had helped out with this task if he had the capacity.
14. If Varinder was available to assist with the Applicant's duties it is not clear to me why the Applicant did not inform Matthew about this. It is my understanding that Matthew made multiple telephone calls to Melbourne, Wagga and even Albury drivers to determine if someone would be available to assist the Applicant however could not locate anyone to do the unloading task.
15. I am informed that the Applicant has stated that he had to sleep in the cabin of his truck at the Woolworths Distribution Centre Dandenong South without food due to being out of logbook hours after he unloaded his trailer. There is food and water available at Woolworths and the Applicant was off site for personal reason and was aware and committed to his task, was advised to be set up for the next day. Drivers are required to manage their logbooks including all split breaks. The length of the break varies depending on the number of hours within a 24 hour cycle a driver has been driving. As the Applicant lived only 15 minutes away from where he was in his truck I was happy for the driver to leave the vehicle at the location and go home and return in the morning to collect
CONTENTIONS
Mr Singh
Mr Singh contended that:
(a)He was a good employee who had cooperated with the company; he advised that on many occasions the company had called him at 4am to do local duties, pick up drivers and complete local drivers’ jobs. He had sacrificed personal and family time to the company, stating ‘they paid me, but it was ‘give and take’. When the company needed him, he helped them and when he needed time, he gave his employer reasonable notice.
(b)On many occasions he requested time off during the week to attend to personal matters and there had never been an issue with arranging a replacement driver to cover the unloading of his trailer before.
(c)He was not given continuous work and the company would send him a message, notifying him of his shift for the next day, explaining ‘tomorrows run they send me a message on the day’ and ‘if they don’t send a message, I’m not working’.
(d)He acted at all times in a reasonable and responsible manner towards his employer.
(e)He was a causal driver, not full-time, and though he had applied for full-time employment, RFTS never put him on full-time wages or conditions.
(f)As a casual, he had the right to tell his employer that he required time off to attend to personal activities.
(g)He advised his supervisors three days before the day he needed to leave work early to attend to personal matters, and this was ample time for them to find a replacement driver to unload his truck, as they are a large company with 300 to 400 employees.
(h)He had not refused the shift because as a casual he only got paid for the work he performed, as he was paid per kilometre and additional time for loading and unloading the trailer. This was not the first time he was permitted to complete his shift at the yard and have a local driver take the truck to the distribution centre to unload.
(i)The company used to give him loaded trailers, with his job being to unload them. He would take a filled trailer to Adelaide and unload it, got it filled again, and delivered it back to Melbourne. It was Mr V Singh’s job as a local driver to unload the trailer, but whenever Mr V Singh was unavailable, Mr Singh would empty the trailer or did that part of a local drive’s job.
(j)On 18 June 2020, he had already informed Mr V Singh that he needed to leave early, and Mr V Singh said he was happy to unload Mr Singh’s trailer. While Mr V Singh was present in the yard to unload the trailer, Mr Singh needed Mr Bonfield’s approval, as Mr Singh did not have the authority to direct Mr V Singh to do the work.
(k)When the conversation with Mr Bonfield and Ms Brocklehurst occurred, Mr V Singh was already in the yard, ready and available to unload Mr Singh’s trailer. Prior to this incident, if Mr Singh had to take a day off work, Mr Bonfield and Mr V Singh would get in touch. Mr Singh advised: ‘So how we used to do it, once the supervisor, Varinder and myself talked about it, we wouldn’t inform the company because unless any changes were needed, that’s why once I spoke to the two of them, I assumed everything was arranged. So, he hadn’t arranged and to cover his mistake, Jasmine shouted at me’.
(l)He had not received any email or other communication from the company that there was not a driver available to help him unload on the day he wanted to leave early. He was only told on 18 June 2020 that no one was available to assist with his unloading on the day, if he had been informed, then the situation wouldn’t have occurred, as he would have made other arrangements.
(m)He told Mr Bonfield and Ms Brocklehurst that he couldn’t come back after his personal appointments because he couldn’t manage his fatigue as he was already allocated the next day’s shift.
(n)If he had called in sick, then they would have covered the shift, as they have 7-8 drivers available, and sometimes drivers call in sick just a few hours before a shift and they are able to cover the shift.
(o)He had to take time off work during a shift to attend to personal matters as he started on Monday, finished late Tuesday and went back to work on Wednesday, so he didn’t have time during weekdays to do banking or go to VicRoads.
(p)He informed Ms Brocklehurst that he had personal matters to attend to which is why he couldn’t return to work to unload the trailer. Ms Brocklehurst told him that Mr Bonfield was new and was still learning. Mr Singh informed Ms Brocklehurst that he had already spoken to Mr V Singh and he was ready to help with emptying the trailer, but Ms Brocklehurst said, ‘it’s your job and you need to do it’. After this the situation escalated, with Ms Brocklehurst shouting a lot. He was frustrated and agitated during the phone call on 18 June 2020, but he did not shout or act rudely. To this day, it is still traumatic for him to even remember.
(q)Despite how he had been treated and how he felt, he continued to perform his duties and drove to Adelaide the next day. He slept in the truck that night, though he was unable to sleep properly. He was living in Truganina at that this stage, a significant distance from the yard, but he had not updated his residential address details with RFTS.
(r)The next day when he went to Adelaide, he was very upset, and it was hard for him to complete the trip. During the trip he could not concentrate, it was very uncomfortable for him, so on his return to Melbourne he went to see his doctor and explained the situation and following this made a claim for compensation.
(s)His doctor advised him that his main injury came about from the way he had been treated during the phone call of 18 June 2020.
(t)The light duties which he was assigned after the incident, including washing and cleaning the trailers, were actually harder for him because he didn’t have a physical injury, as it was a mental or psychological injury that he was experiencing. The other drivers had been informed by the company that he had made a claim for compensation and so their behaviour towards him was upsetting as they were trying to make him irritated. His co-workers used to make comments between themselves about him which further disturbed him, so he requested alternative duties, but the company advised that this was the only duties or job they could provide.
(u)At this stage he decided that before he got to a point where he hurt himself or decided to commit suicide, that he should leave his job at RFTS.
RFTS
The Respondent conceded that Mr Singh was suffering from a psychiatric condition which emanated from his workplace. The Respondent argued that the evidence established that Mr Singh’s discussion with Mr Bonfield and Ms Brocklehurst on 18 June 2020, where he was told that he would need to return to work after his personal appointment and unload his trailers, could be regarded as contributing in a significant degree to any disease suffered by him.
The Respondent referred the Tribunal to the matter of Comcare v Drinkwater (2018) 260 FCR 150, in which the Full Court of the Federal Court considered the meaning of ‘administrative action’ and found that a decision to transfer an employee fell within the meaning of those words and could not be characterised as ‘operational’. The Court held that ‘a determination by an employer that the employee will move from his or her existing post to a new post in the employer’s employ involves administrative action specifically directed to that employee and specifically about that employee’. The Respondent noted that in that case, the Full Court did not place any reliance upon section 5B(2)(f).
The Respondent submitted that if the Tribunal were to find that Mr Singh was suffering from a psychiatric condition, however described or diagnosed, that such a condition should be regarded as a disease within the meaning of the Act.
The Respondent contended that even if the case was made out that Mr Singh suffered an injury which emanated from his work, that doesn’t necessarily mean he is entitled to compensation. The Respondent argued that under section 5A(2)(f) of the Act, Mr Singh would not be entitled to compensation if it can be shown that what occurred was reasonably done in connection with Mr Singh’s failure to obtain a benefit in connection with his employment.
The Respondent submitted that a ‘benefit’ in the context of section 5A(2)(f) means something which is good or favourable for the employee. In relation to Mr Singh, he wanted to receive a benefit in the form of time off, requiring his employer to rearrange his duties so he could attend to his private appointment at VicRoads at 3pm on 18 June 2020.
The Respondent submitted there can be no doubt that the securing of time off work for private purposes and being excused from performed a portion of your daily duties can be regarded as a benefit within the meaning of the Act and referred the Tribunal to the matter of Trewin v Comcare (1998) 84 FCR 171 at 176-177, where Justice Heerey held that the word ‘benefit’ encompasses ‘anything that is for the good of a person or thing’.
The Respondent submitted it was not controversial that Mr Singh had submitted a claim form on 24 June 2020 in which he alleged he had suffered a physiological injury as a result of bullying from Mr Bonfield and Ms Brocklehurst. However, the Respondent contended there was no evidence to support Mr Singh’s allegations that Ms Brocklehurst or Mr Bonfield acted in a bullying manner towards him during the conversation of 18 June 2020 or at any other time.
The Respondent contended their case was simply that Mr Singh had made a request to take time off work to attend to a private matter, his supervisor said he would try to find an alternative driver to undertake his duties so he could leave work and not return, but if an alternative driver could not be found, Mr Singh would have to return to work after his appointment to unload his trailer at a later time.
The Respondent contended that this was reasonable in all the circumstances; arguing that the administrative action was reasonable in conception and execution.
The Respondent disputed Mr Singh’s claim that he had not been advised that another driver could not be found to unload his trailer on 18 June 2020.
The Respondent further contended that at no stage were Mr Bonfield and Ms Brocklehurst made aware that Mr V Singh was available to undertake the duties for Mr Singh. The Respondent submitted that Mr Bonfield and Ms Brocklehurst’s consistent evidence was that if they had been aware Mr V Singh was present in the yard and able to do the unloading, they would have agreed to this arrangement and this issue would have been avoided.
The Respondent submitted it should not be overlooked that Mr Singh was given permission to take time off to attend the appointment but on the fair condition that he return to work afterwards to complete the unloading. At the same time, he was told that in future if he made appointments during work hours, he would have to apply specifically for leave. The Respondent submitted that this decision was more than reasonable in all the circumstances.
The Respondent contended the difficulty seems to have arisen because Mr Singh initially told Mr Bonfield that his sole commitment was an appointment at Vic Roads, however as his statement made plain, he clearly wanted to do other things.
The Respondent disputed Mr Singh’s allegation that Mr Bonfield and Ms Brocklehurst spoke to him in a bullying manner, arguing the contemporaneous accounts and the evidence from Mr Bonfield and Ms Brocklehurst supports the proposition that they, particularly Ms Brocklehurst, spoke to Mr Singh in a fair, but measured way.
The Respondent acknowledged that Ms Brocklehurst concedes that she had to adopt a strong tone to counter the heated manner and attitude of Mr Singh. The Respondent submitted it was significant that Mr Singh conceded in his statement that Ms Brocklehurst said on the call that his behaviour was not acceptable, and she told him to ‘stop, stop, stop’.
The Respondent contended that during the phone conversation on 18 June 2020, Mr Singh was agitated, rude and overbearing to Mr Bonfield and Ms Brocklehurst, which required them to speak to him firmly but reasonably in the circumstances of his behaviour.
By way of background, the Respondent noted that there were discussions with Mr Singh about distraction events, which occurred around the same time of the incident on 18 June 2020. The Respondent argued that the distraction events had no bearing on the outcome of the hearing but formed part of the factual background to the event.
The Respondent submitted that on 1 May 2020, Mr Singh sent an email complaining about his allocated working hours and how those hours didn’t align with his personal commitments. On 14 June 2020, RFTS’s driver monitoring equipment detected that Mr Singh had committed distraction events. This prompted Mr Bonfield to initiate a conversation with Mr Singh over the weekend of 13-14 June 2020 and that Mr Singh was ‘unhappy’ about the issues being raised.
The Respondent submitted Mr Singh had claimed in his 17 March 2021 statement that he personally arranged for another driver, Mr V Singh, to undertake his unloading duties on 18 June 2020. The Respondent submitted that in cross examination, Mr Singh agreed that his evidence was that he told Mr Bonfield and Ms Brocklehurst that Mr V Singh was available and able to do the unloading. If this were true, the Respondent argued, that piece of information would have found its way into Mr Singh’s initial statement of 24 June 2020. The Respondent also noted that both Mr Bonfield and Ms Brocklehurst’s evidence was that if they had been told that Mr V Singh was available to unload the trailer, none of this would have been an issue.
In summary, the Respondent submitted that Mr Singh made a request for time off work, he was told that this request would be complied with if certain arrangements could be made, and the evidence before the Tribunal shows this was conveyed to Mr Singh. Therefore, the Respondent contended that the discussion between Mr Bonfield, Ms Brocklehurst and Mr Singh on 18 June 2020 was reasonable administrative action taken in a reasonable manner for the purposes of section 5A(2)(f) of the Act and the Tribunal should affirm the determination.
CONSIDERATION
Neither party sought to present medical arguments as RFTS has accepted that Mr Singh was suffering from anxiety as a result of the workplace incident on 18 June 2020. As such the Tribunal proceedings were confined to a narrow consideration of the issue of reasonable administrative action.
As a self-represented Applicant, Mr Singh presented as a credible witness who did not overstate the situation, nor did he attempt to argue with the Respondent about their differing views of the facts.
Additionally, both Mr Bonfield and Ms Brocklehurst described Mr Singh as a reliable worker, who they had been able to call upon to assist with numerous tasks. Neither Mr Bonfield nor Ms Brocklehurst expressed any concerns about Mr Singh’s work performance.
DISEASE
Whilst there was very limited medical evidence before the Tribunal to be satisfied of a diagnoses of Mr Singh’s condition, the Tribunal accepted the evidence of Mr Singh and medical reports that prior to the incident on 18 June 2020 he had not been suffering from any mental health issues. There was little evidence to support the agreed position between the parties that as a result of this one-off incident Mr Singh had suffered a mental health condition of anxiety, presenting with symptoms of agitation, resentfulness, insomnia and lack of concentration. However, as this was not in dispute, the Tribunal adopted the findings of the independent reviewer that:
Based on the contemporaneous nature of the events of 15-18 June 2020 with your subsequent attendance at the doctor, I consider that if you had not been told by Mr Bonfield and Ms Brocklehurst that there was no-one else to unload your trailers and that you would have to return to work after your appointment and complete your duties, you would not have suffered your condition of 'Anxiety'.
The Tribunal concluded that considering the medical evidence, it was probable that, but for the incident of 18 June 2020, Mr Singh’s ‘significant anxiety’ would not have arisen. The Tribunal was satisfied that Mr Singh’s mental health condition was significantly contributed to by his employment, such that it is a ‘disease’ within the terms of section 5B(1) of the Act.
REASONABLE ADMINISTRATIVE ACTION
There seems to be no disagreement that the ‘administrative action’ taken in this case was the direction to Mr Singh that he was required to return to work to complete his duties after he had finished with his personal appointments. The Tribunal was satisfied that this was an administrative action as envisaged by the Act.
The disagreement between the parties was whether the incident on 18 June 2020 was ‘reasonable administrative action taken in a reasonable manner’ in respect of Mr Singh’s employment.
Was the administrative action reasonable?
Mr Singh contended his position as a casual driver was central to the dispute because as a causal, he had no leave entitlements and he had the right to decline work at any time, his work roster did not allow him time during business hours to undertake necessary personal tasks, and he was not guaranteed work each week.
The Respondent rejected Mr Singh’s contention that his form of employment altered his requirement to complete the duties of his shift on 18 June 2020. His duties as a truck driver required him to unload his trailers and his delivery timeslot of 4pm was well known to him as he was aware it could not be changed as it was part of the Respondent's contract with Woolworths.
The Tribunal considered that the issue of Mr Singh’s form of employment was key to this dispute and formed the basis of why Mr Singh asked to finish his shift early and had not requested leave to conduct his personal appointment. The Tribunal understood that if Mr Singh had asked for time off it would mean he lost a week’s pay, as he had no leave entitlements, and his roster was fixed a week at a time. The Tribunal also understood that if Mr Singh had not accepted work for the week, he was not assured when he would next receive work.
Mr Singh contended that the phone call on 18 June 2020 could have been avoided if he was advised prior to that day that he was not permitted to end his shift early, as he simply would have made other arrangements.
The Respondent contended that Mr Singh was advised that he would be required to complete his shift as no other driver had been found to assist with his unloading.
Mr Singh was adamant that another driver was available in the yard, ready to perform his duties. The Tribunal accepts Mr Singh’s assertion that on 18 June 2020 it would have been possible for Mr Bonfield and Ms Brocklehurst to ascertain if Mr V Singh was in the yard as they had access to CCTV of the premises. Mr Singh’s evidence at the hearing:
Applicant: I inform Jasmine that Varinder in yard and Jasmine told me that he’s a local driver, Varinder’s not doing your job, and this is your job. This was Jasmine’s wording I’m repeating, Varinder is local driver. Jasmine was aware that Varinder was in the yard, she said it’s your job and you have to do it.
Member: Ms Brocklehurst that’s the claim, what would you have to say?
Brocklehurst: I don’t recall that conversation going like that.
The Respondent contented this was not the case because Mr Bonfield and Ms Brocklehurst asserted that if they had known Mr V Singh was available to undertake the work, this whole situation could have been avoided.
Mr Bonfield’s evidence at the hearing:
Respondent Counsel: You tried to explain to him that you tried to obtain assistance but no one was available. Now, we’ve mentioned Varinder Singh, did on any occasion in this conversation on the 18th, did the Applicant ever mention that name?
Bonfield: He said have you tried Varinder and if I had tried, well, as I said earlier, Varinder was always the first point of call because he was, like, you just knew that’s the first person you would ring if you had some trouble in Melbourne and needed assistance, so yes.
Respondent Ciunsel: Listen carefully to my question, did he ever mention the name Varinder Singh in this conversation?
Bonfield: Yes.
Respondent Counsel: Tell us about that.
Bonfield: So he would have mentioned, he would have basically straight out asked, had I tried Varinder, knowing he was also a Melbourne based driver, operated out of the same area, and that Varinder was the one to call.
Respondent Counsel: Ok well was there any further mention about Varinder Singh being available to do the filling work for him?
Bonfield: Not that I can recall, or if he did say it, I would have said that I tried Varinder, and he couldn’t do it. Again, based on whether Varinder said he could do it or whether he didn’t have a clash of times or legal working hours to do it, those factors would have been taken into consideration.
Respondent Counsel: Well, for arguments sake, if he’d of told that Varinder Singh was available to do this work, what would have happened?
Bonfield: Well, I would have asked if Varinder could do this work and if Varinder could do the work, and Jasmine had organised for Varinder to do this work, well that would have been a lot less work for me to do. So by all means all I would have had to do was update names in the system so pay was set correctly to the drivers. But yeah that would have been a lot less work for me to do. So if he knew that Varinder could do that job and had arranged for Varinder to do that job, well then, as I said, a lot less for me to even think about or worry about because that’s my first point of call as well.
Ms Brocklehurst’s evidence at the hearing:
Member: When Mr Singh advised that Varinder was there in the yard, what prevented you from asking him to unload the trailer for Mr Singh?
Respondent Counsel: Can I just make the point that the witness has never conceded that Mr Singh did say that.
Member: I know, that’s what I’m trying to get to. Sorry, maybe I phrased it incorrectly. The contention from Mr Singh is Varinder was in the yard, he made them aware that he was there at the time and I just want to know if Ms Brocklehurst was aware of that, and if she was, what she would have done?
Brocklehurst: Had Varinder been available I would have had rung him and asked him to do the unload as he has done it many times before for the evening drivers, he would unload their trailers for them. But I was not aware that he was available and in the yard at that time.
It seems odd that no one during this process spoke to Mr V Singh to ascertain his understanding of the events of 18 June 2020. Neither the initial nor independent reviewer sought a statement from Mr V Singh. Additionally, the Respondent did not provide a statement from Mr V Singh’s to confirm the claims of Mr Bonfield and Ms Brocklehurst for these proceedings.
Mr Singh advised the Tribunal he could not ask his friend Mr V Singh to make a statement to support his claim as he still works for RFTS. The Tribunal appreciates Mr Singh did not wish to compromise his friend’s employment.
The Tribunal was also troubled by the perception of a lack of procedural fairness offered to Mr Singh during the initial investigation of his claim, given the first review was conducted by Mr Shane Tucker, Safety, Rehabilitation, Compensation and Quality Manager at RFTS, and the independent review was undertaken by Mr Stuart Mckie, Managing Director of RFTS. The Tribunal does not consider an internal review undertaken by the company’s Managing Director could be considered independent.
However, considering the incident and the surrounding circumstances the Tribunal finds the Respondent’s administrative action was reasonable. The Tribunal finds Mr Singh accepted his roster, including the requirement to unload his trailer at 4pm on 18 June 2020. He subsequently asked for time off to attend a personal appointment. Even though he was a casual employee, Mr Singh was still required to complete his shift and perform all the required duties. Once he had accepted the shift, he could not simply choose not to complete his duties.
The Tribunal did not have enough evidence to arrive at a conclusion on whether Mr Bonfield had attempted to secure another driver to assist Mr Singh at the end of his shift or that Mr V Singh had been approached by the Respondent to complete Mr Singh’s duties or that he had advised Mr Singh prior to the 18 June 2020 that no other driver was available. There was also no corroborating evidence that Mr Singh had been advised prior to the 18 June 2020 that he would be required to return from his appointment at VicRoads to unload his trailer.
The Tribunal also does not have enough information to arrive at a conclusion on whether Mr Singh informed Mr Bonfield prior to the 18 June 2020 that Mr V Singh could complete his duties. The Tribunal finds it was not appropriate for Mr Singh to advise the Respondent on the 18 June 2020 that Mr V Singh was in the yard and able to do the work as the Respondent would not have been able undertake the necessary checks about legal working hours or clashing shifts to ensure the driver and the company complied with their legal obligations, particularly around fatigue.
The Tribunal concluded that the Respondent had a right to require Mr Singh to perform his duties and was not required to find an alternative driver to complete his tasks on 18 June 2020.
The Tribunal was troubled by a lot of what occurred around the administrative action undertaken on 18 June 2020, in particular Mr Singh’s casual employment status, the lack of any independence in the review of his compensation claim, and the failure to get a statement from Mr V Singh. However, these issues did not form part of the actual administrative action undertaken in respect of Mr Singh’s request for time off to attend a personal appointment.
Was the reasonable administrative action ‘taken in a reasonable manner’?
To objectively assess whether the administrative actions were undertaken in a reasonable manner, they must be assessed in the context and circumstances of the events on 18 June 2020. In Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47-48 Lander J found:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
And in Comcare v Stewart [2019] FCA 365 at [70] the Hon J Robertson posed the following questions:
Did the Tribunal in substance identify the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacted upon the worker, the circumstances in which the administrative action was implemented, and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer? Did the Tribunal in substance decide whether what it assumed for this purpose to be reasonable administrative action was taken in a reasonable manner by approaching it as a question of objective fact, to be determined against the ordinary standards of reasonable employers in all the circumstances of the case?
Mr Singh asserts that it was the manner in which he was spoken to which caused him trauma and it was not reasonable in any circumstances. Mr Singh’s evidence at the hearing:
Applicant: Jasmine didn’t speak like this, ‘stop, stop, stop’, she didn’t speak like that, she was in very, very, very, I didn’t see Jasmine that mood before. She was very aggressive, she was aware that Varinder Singh was there, and she told me that this is your job, you have to do, Varinder is not doing. She was talking me like this, Varinder was ready, ‘stop, stop, stop’. She was shouting too much. The whole thing took me, it was a trauma that I couldn’t tolerate. I have not done the wrong thing. I took the medical advice and they gave me the medical treatment and everything and the whole thing, I lost, even now, the whole thing is going in my history, everywhere I go to the job. Even I lost my job I was doing because they lost the contract. So everywhere I go for a job, I have to tick the mark do you have mental issue before, do you have something, do you take anything. So this damage my whole life so it’s very hard for me to getting a job. Nobody is going to hire me in this position again, and plus I did cooperate with company Ron Finemore. I tried my best to come to work but they didn’t help me anything, they didn’t help me anything. They cancelled the psychologist appointment so I had to pay my pocket. They cancelled Doctors, my treatment. They cancelled all what they agreed before, to pay all my medical treatment but they leave me in a hard way. So I have gone through a very hard life and the whole incident happened because of Jasmine. I was doing my best to perform a good job but Jasmine, the whole thing, she was not aware that I already gave enough, two days, notice, if company needed me in three hours I help company. So the whole thing happened because of Jasmine shouted, she put me in mental issue problem and I can’t, now it’s very hard for me to get another job.
The Respondent argued that the manner in which both Mr Bonfield and Ms Brocklehurst conducted themselves on 18 June 2020 was reasonable; Ms Brocklehurst’s tone was firm but was never rude or aggressive and did not contain any inappropriate language. The Respondent argued that her tone was required to quell Mr Singh’s inappropriate behaviour towards Mr Bonfield.
Ms Brocklehurst’s evidence at the hearing:
Brocklehurst: I believe I used a stern tone just to control the situation, to get Mr Singh and I to talk in a more appropriate manner. I asked him to stop the conversation as it was loud so that we could discuss it together better.
……
Applicant: The whole conversation start from when I was told that this is your job, you have to do your job, or this is part of your job and Varinder is not unloading your trailer.
Member: Ms Brocklehurst, that’s the claim from Mr Singh, what do you have to say?
Brocklehurst: As per my statement and email to Stewart in the T14 document, I did advise Mr Singh it was his job to unload the trailers and he was to go to his appointment and come back. If I had known Varinder was available, I would have arranged Varinder to do it, as that is a process we have done in the past.
Mr Bonfield’s evidence at the hearing:
Bonfield: I would have rung everybody I could, everybody that I knew would have been in Melbourne. Varinder would have been first point of call, then I would have asked any of our other drivers I knew that were in Melbourne at the time if they could help assist, essentially it is just putting trailers on dock, and coming out and we can arrange for the empty trailers to be picked up. So taking our trailers from the depot to the dock but bear in mind I’ve also got to make sure that they have the legal working hours to do that as well, so have to investigate every driver we had down there and make sure they had the correct working hours and were able to do it for me. Which I had no luck with our general freight drivers. I also rang our Melbourne depot, well it’s not really a depot but Melbourne site, where we also have fuel drivers to see who would have been available but no one was available.
Respondent Counsel: Ok well, the question was, did you convey that information to the Applicant after receiving his email on the 16th of June?
Bonfield: Yes, so yeah I passed that message straight back to Jaswant saying that I have attempted to find anybody I could but nobody could and he would have to take those trailers over and dock them himself.
Respondent Counsel; Did you at any stage give him the option of going to his appointment and then come back and fulfill his work obligations after the appointment?
Bonfield: Of course, with that it’s a matter of putting on docks, so all I would have had to do was notify the DC that the trailers would be there at a later time, and then he could go to his appointment at three o’clock and then come back at five or six o’clock, the DC is still open and he could complete that task. Which was the only strategy that I had available to me.
….
Respondent Counsel: Alright, you mentioned Ms Brocklehurst took over the conversation?
Bonfield: Yep.
Respondent Counsel: What do you say about how she spoke to the Applicant? Her manner of speaking to him.
Bonfield: So Jasmine is generally a very direct, no nonsense kind of person. As you can see, I probably ramble on a little bit, generally Jasmine’s direct, straight to the point, and no fuss, no mess, basically is probably the easiest way to describe it.
Respondent Counsel: Well, did you hear her raise her voice towards the Applicant?
Bonfield: Not that I can recall, if there was some frustrations, yeah, but not, like, in an aggressive tone. So she, Jasmine keeps things pretty straight forward but I wouldn’t say she raised her voice, no.
Respondent Counsel: Ok, alright.
Bonfield: I don’t recall any instances where she really raised her voice in that office in the whole time I was there. As I said, she was direct about her communication but you knew where you stood with Jasmine.
The Respondent argued the Tribunal needed to consider the background to this event of the distraction report being raised by Mr Bonfield with Mr Singh. Mr Singh argued the distraction report was irrelevant and the device in the truck often produced false readings, such as finding the driver was asleep when the driver was actually wearing sunglasses.
The Tribunal placed no weight on the issue of the distraction report, finding it was not a material factor in the incident of 18 June 2020. The Tribunal determines that it was the discrete event of being told by Mr Bonfield and Ms Brocklehurst that there was no-one available to unload his trailers and that he would have to return to work after his appointment and complete his duties, which gave rise to his mental health condition of anxiety.
The Tribunal finds that on 18 June 2020 the ‘reasonable administrative action’ of the Respondent was ‘taken in a reasonable manner’.
The Tribunal determines that Mr Singh’s anxiety arose from his perception of how Ms Brocklehurst spoke to him on the phone on 18 June 2020, however the Tribunal finds based on the evidence before it that the tone adopted by Ms Brocklehurst was appropriate to the situation. Whilst Ms Brocklehurst was direct and firm, the Tribunal considers this was necessary to quell Mr Singh’s heightened anxiety and to put an end to the circular conversation.
The Tribunal finds that the resolution of allowing Mr Singh to attend his appointment and return to unload his trailer at the distribution centre later was a reasonable compromise.
However, the Tribunal does not consider this compromise was a form of benefit to Mr Singh and does not consider that he received a benefit in the form of time off to attend his personal appointment. The Tribunal does not consider that it was required to consider section 5A(2)(f) of the Act as the clause clearly identifies that reasonable administrative action is taken to include several factors, however the clause is not limited to those factors. The Tribunal concludes an administrative action occurred when the Respondent directed Mr Singh to return to work to complete his duties.
The Tribunal considers that it was reasonable for Ms Brocklehurst to point out to Mr Singh that it was his job to fulfil the duties of the shift he had agreed to undertake as a casual driver.
The Tribunal determines that Mr Singh also contributed to the level of anxiety he has experienced because of this event as he had not advised Mr Bonfield and Ms Brocklehurst how much time he required away from work on the afternoon of 18 June 2020, nor that he had moved residential addresses. The latter being of greatest concern as it resulted in him being required to sleep in the truck on the night of 18 June 2020.
The Tribunal does consider the whole situation could have been avoided as all the parties had been at pains to point out. The Tribunal concluded that in a company the size of RFTS, a system should be in place to assist casual linehaul drivers to access time off during normal working hours to attend to the necessary administrative functions of life.
Although the Tribunal has concluded Mr Singh is excluded from any form of compensation as it has determined that the incident of 18 June 2020, whilst not pleasant, was administrative action taken in a reasonable manner, it nevertheless found the whole situation had greatly impacted Mr Singh. The outcome of the event and the subsequent manner in which the company dealt with Mr Singh’s claim has left him financially strained. As he had no income for a time, he had to access Centrelink benefits and has subsequently difficulty finding work as a driver. The Tribunal requests the Respondent investigate and ensure that it has paid all of Mr Singh’s outstanding entitlements including any wages for the time he undertook alternative duties.
CONCLUSION
The Tribunal, having considered all the evidence before it, determines that Mr Singh is excluded from any form of compensation under the Act as it has determined the incident on 18 June 2020 was a reasonable administrative action taken in a reasonable manner for the purposes of section 5A(2) of the Act.
DECISION
Under section 43(1)(a) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review to reject Mr Singh claim.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member
.....................[sgd]....................................
Associate
Dated: 1 March 2022
Date of hearing: 25 October and 2 December 2021 Applicant: Self-Represented Counsel for the Respondent: Mr Charles Clarke
Solicitors for the Respondent: Ms Rebecca Shelley, Hall & Wilcox
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