New Zealand Transport Agency v Georgy HC Auckland CRI-2010-404-000365

[2010] NZHC 2429

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000365

NEW ZEALAND TRANSPORT AGENCY

Appellant

v

SAMIR PHILLIP BOSHRA GEORGY

Respondent

Hearing:         6 December 2010

Appearances: N F Flanagan and C P Paterson for the Appellant

M E Read for the Respondent

Judgment:      9 December 2010

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 9 December 2010 at 4.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     M E Read P O Box 6804 Wellesley Street Auckland 1141for the Respondent

Solicitors:   Meredith   Connell   P   O   Box   2213   (DX   CP24063)   Shortland   Street

Auckland 1140 for the Appellant

NZ TRANSPORT AGENCY V GEORGY HC AK CRI-2010-404-000365  9 December 2010

[1]      The New Zealand Transport Agency (the Agency) appeals under s 107 of the Summary Proceedings Act 1957 by way of case stated against a decision of the District Court dismissing charges under the Land Transport Act 1998 (the Act) which the Agency laid against the respondent, Mr Georgy.  The appeal is opposed.

[2]      The appeal raises a short point of statutory interpretation of some general significance to the regulation of the taxi industry.   The Agency is responsible for regulating the industry.

[3]      Mr Georgy is a taxi driver.  The charges against Mr Georgy were that he:

a)        Exceeded 13 hours “work time” in a cumulative work day contrary to s 30ZC(2)(a) of the Act (x 2);

b)Failed to have 10 hours continuous “rest time” in a work day contrary to s 30ZC(2)(b) (x 2); and

c)        Exceeded 70 hours “work time” in a cumulative work period contrary to s 30ZC(3) of the Act (x 1).

[4]      The overriding focus of the regulatory regime is public safety.  To that end, the Act and the Land Transport Rule: Work Time and Logbook Provisions 2007 (the Rules) impose a number of obligations on taxi operators.  Among the most important of  those  are  restrictions  on  the  hours  that  taxi  drivers  may  work.    Since  it  is dangerous for people to drive while fatigued, the Act mandates maximum work hours and specifies compulsory breaks that must be undertaken.   The question on this appeal is whether a driver who is at home or elsewhere, but nonetheless on call waiting for a job, is on “work time” for the purposes of the Act.

[5]      Mr Georgy’s defence to the charges was that the amount of time that he actually spent driving his cab did not exceed the relevant statutory limits.   His position was that time spent by him at home on call waiting for jobs was not to be counted in calculating “work time” for the purposes of the Act.  If his conduct was viewed in this way, he was not in excess of the relevant maxima and, as such, not

guilty of the five charges above.   The District Court accepted Mr Georgy’s submissions and dismissed all five charges.

Factual background

[6]      Mr   Georgy   is   a   taxi   driver   contracted   to   Corporate   Cabs   Limited (Corporate Cabs).  Corporate Cabs has a computer system that records jobs as they come in, and dispatches drivers to fill them.  Drivers log on to that computer system from their car, and wait to be allocated a fare.  The company and its drivers do not operate from taxi ranks but use this system instead, known as a “virtual queue”. Drivers are contractually obliged to take jobs when dispatched (although Mr Georgy did not appreciate that).

[7]      In this case, Mr Georgy’s evidence was that he would log on to the virtual queue from home at the start of the day, but did not consider himself to be working until he had set off on his first job.  His evidence was that when notified of a job, he had 20 minutes to get to it.  Once he decided to take no more jobs that day, he would log off the system.  He only recorded in his logbook when he was actually in the cab to, from, or during a job, and that was the only time he counted towards the various statutory maxima.

[8]      The evidence taken in the District Court shows that Corporate Cabs operates a pager system which pages drivers when a job is allocated to them.  The allocation of a job is also shown on a computer situated in the taxi cab.   Taxi drivers are, therefore, made aware of an allocated job either through being paged, or by their monitoring of the computer in their cabs.

Case stated on appeal

[9]      The questions of law on appeal stated by the District Court are as follows:

a)       Does the Land Transport Act 1998, together with the Land Transport Rule: Work Time and Logbook Provisions 2007 include as work time, time spent in a computer generated virtual queue?

b)Does the Land Transport Act 1998 and the Land Transport Rule: Work Time and Logbook Provisions 2007 allow for the inclusion of time spent in a computer generated virtual queue as rest time thereby defined?

c)        Was my decision erroneous in point of law?

[10]     The first question determines the following two.   If time spent in a virtual queue is “work time”, it cannot be rest time, and the decision of the District Court will have been in error.  Conversely, if that time is “rest time”, it cannot be “work time” under the Act, and so there will be no error on the part of the District Court.

[11]     The case stated on appeal records what was found to have been proved upon the hearing in the District Court:

a)       Mr Georgy was logged on to the Corporate Cabs’ computer system at the times alleged by the informant; he was logged on to that system for longer than the prescribed work time requirements in the Act; and when logged on to the Corporate Cabs’ computer system, he was logged into a virtual queue for jobs and could be sent to a job at any time.

b)While logged into the virtual queue, Mr Georgy was contractually obliged  to  take  any jobs  offered.    But  he,  and  other  independent contractors, disputed that contractual obligation, preferring an interpretation of the contract that enabled them to pick and use such jobs that they wanted to complete.

c)       Mr Georgy recorded in his logbook as work time, the time from when he received his first job through to the time that he finished his final job  each  day,  not  the  time  when  he  was  logged  on  to  the Corporate Cabs’  computer  system.    It  was  proved  that  during  the times that Mr Georgy was logged onto the Corporate Cabs’ system,

but had not yet received his first job, or after he had finished his final job, he would be attending to personal and household type activities.

[12]     The case stated on appeal records that the Judge determined that the times during which Mr Georgy was logged onto the Corporate Cabs’ computer system, but had not yet received his first job, were not “work time” for the purposes of the Act. It was also recorded that the times after which Mr Georgy had finished his final job for the day, but was still logged on to the computer system, were not work time for the purposes of the Act.

The District Court judgment

[13]     The District Court Judge dismissed the informations on the basis that he was not satisfied beyond reasonable doubt that Mr Georgy was on work time when he was logged on to the Corporate Cabs’ computer system at home.

[14]     The  District  Court  Judge  referred  to  the  fact  that  the  prosecution  of Mr Georgy did not rely on his logbooks.  These did not disclose an offence.  The District Court Judge found that the prosecution relied on the Agency’s investigator’s detailed analysis of a computer generated document from Corporate Cabs, which was adduced into evidence as exhibit 1.  Extracts from Mr Georgy’s logbook were adduced as exhibit 2.   The investigator’s analysis of exhibit 1 and exhibit 2 was contained in exhibit 3.  In exhibit 3, the investigator compared the logbook extracts (exhibit 2) with the information in exhibit 1.  The District Court Judge was critical of the Agency’s reliance on this evidence to prove the charges against Mr Georgy.  He considered that the information in exhibit 1 did little to prove the matters referred to in the Act as being work time.

[15]     The District Court Judge found Mr Georgy to be a truthful and impressive witness.  He had given evidence that his taxi driving job was a retirement job, and that he preferred to be at home looking after his wife, who was not in good health. The District Court Judge also found Mr Georgy’s daughter to be a truthful witness. She had given evidence that frequently Mr Georgy would not accept jobs, even though he had logged on to the Corporate Cabs’ computer system and was in the

virtual  queue  for  allocation  of  work.     The  District  Court  Judge  referred  to Ms Georgy’s evidence where she described how if her father was watching a video at home, and a job came in, he might pause the video and leave to do the job, then return and resume watching the video.

[16]     The  District  Court  Judge  identified  the  legal  question  for  determination before him as being whether or not waiting in a virtual queue at home was “resting” in the ordinary sense of the English language, or “work time” as defined in s 2 of the Act, or in the Rules.

[17]     The  District  Court  Judge  then  proceeded  to  consider  if  Mr  Georgy  was “driving” while waiting in the virtual queue.   The Act provides a non-exclusive definition of “driving”.  When the District Court Judge compared what Mr Georgy did while waiting in the virtual queue with the definition of “driving”, he found that none of the extended definitions of driving given in the Act or the Rules were met.

[18]     The District Court Judge then went on to find that in terms of the time Mr Georgy spent at home when he was logged on to the Corporate Cabs’ computer system, and, therefore, in a virtual queue, he was not in a moving vehicle associated with work, he was not on a taxi stand, he was not cruising for hire or carrying out administrative  work.     The  District  Court  Judge  found  that  during  this  time, Mr Georgy  was  at  home,  watching  television,  doing  personal  activities,  and effectively not working.

[19]     The District Court Judge was critical of the Agency inviting him to infer that the information in exhibit 1 provided sufficient proof that Mr Georgy was not on rest, but driving.   The District Court Judge said that he was not prepared to draw inferences from exhibit 1 to conclude that while at home, but in a virtual queue, Mr Georgy was in “work time” in terms of the Act.

Agency’s submissions

[20]     The Agency submits that the purpose of the Act and the Rules is public safety, and to ensure that taxi drivers do not work while they are fatigued.   The

Agency argues that the definition of work time is expansive and includes time spent on related tasks.  In other words, it is not confined to just driving.  In this regard, the Agency refers to the Rules expressly including as “work time” waiting at a taxi stand or cruising for hire.

[21]     The Agency submits that the focus should be on the fact that Mr Georgy was on call and that during the on-call time, Mr Georgy was performing a service for Corporate Cabs.  The fact that Mr Georgy performed that duty at home, the Agency says, is immaterial.  The Agency submits that he was just as much on call if he was watching television at home as if he was waiting on a taxi rank.   The Agency submits that in both cases, Mr Georgy’s primary activity was waiting for the next job which he could be sent to at any time.   Here, the Agency relies on the fact that contractually, Mr Georgy is obliged to take whatever work is allocated to him once he has logged on to the Corporate Cabs’ computer system, and he must be at the pick-up point within 20 minutes of the allocation of the job.  There was no evidence that this was, in fact, how Mr Georgy conducted himself.  Indeed, the evidence was to the contrary, as the District Court Judge accepted that Mr Georgy considered he was not obliged to accept every call out from Corporate Cabs.

[22]     The Agency contends that the District Court Judge made the mistake of not considering whether Mr Georgy’s activity at home while in the virtual queue amounted to “work time”.   The Agency contends that the District Court Judge wrongly focused on whether or not Mr Georgy could be said to be driving during this time.  The Agency contends that its interpretation of a taxi driver who is at home in a virtual queue being on work time fits with the purpose of the Act.   This is because the Agency contends the driver is conscious that he may get a call and, therefore, he cannot properly rest.  The Agency contends that while at home in the virtual queue, Mr Georgy has to constantly monitor his car’s computer for jobs.

[23]     The Agency contends that on Mr Georgy’s interpretation of the Act, a driver could log on to the system 24 hours a day, be available for work at all times of the day and night, carry out a job whenever allocated (likely several hours apart), and never exceed the maximum work hours.  The Agency contends that plainly such a driver would be a serious public safety risk, given the level of fatigue such a regime

would entail.  Given that time waiting at a taxi rank is work time, then it would be inconsistent with the Act if taxi drivers could avoid adding hours to their logbook by simply parking at home to wait for a job.

Mr Georgy’s submissions

[24]     Mr Georgy contends that an advantage of Corporate Cabs’ business structure is its electronic queuing system, which allows taxi drivers to better manage their time.  He says he can spend time with his family and rest while he waits for jobs. Jobs are alerted to him via an electronic paging system.

[25]     Mr Georgy argues that the use of the word “waiting” is misleading.   He contends that time spent in a computer generated virtual queue means being called upon when you reach the front of the queue.  It does not mean constantly watching the system.  He says that drivers do not wait to be called, just as one does not wait for a telephone to ring.   He contends that drivers are freed from queuing and can instead attend to other things.  He argues that when this system is compared to a taxi rank system, there is a clear difference.  At a taxi rank, a driver must physically sit in his car and wait.  He or she does not have free time to do what he or she wants.

[26]     Mr Georgy argues that if he is at home in bed asleep while logged in, can this be work related?  He argues that it is not work related, especially when read against the context of the Act’s purpose of road safety.  He disputes the Agency’s working all day example as being exaggerated and outside what the regulatory regime allows. In this regard, he says that under the Act, he cannot be on call all day because he has to have at least 10 continuous hours of rest.  So if Mr Georgy was taking jobs every few hours and resting in between them, he would breach his continuous rest requirement.

Legislative framework

[27]     The Act defines several terms which are of relevance in the determination of this appeal.  In particular:

work time means all time spent performing work-related duties, including, but not limited to,—

(a)       driving vehicles to which subpart 1 of Part 4B applies: (b) loading and unloading:

(c)maintenance and cleaning of vehicles (other than unpaid cleaning outside working hours):

(d)      administration or recording:

(e)       any paid employment (other than paid leave or paid breaks of at least

30 minutes duration), whether or not related to transport activities.

rest time means all time that— (a)         is not work time; and

(b)      is at least 30 minutes in duration; and

(c)       is not spent in a moving vehicle associated with work.

[28]     The Rules further specify the definition of work time in relation to taxi drivers as follows:

2.1(3)   Work time, for a taxi driver, includes the time spent:

a)        on a taxi stand; and b)     cruising for hire; and

c)        carrying out administrative work.

Discussion

[29]     This is an appeal by way of case stated.  The questions for the opinion of the Court need to be answered against the background of the facts that were proved at the hearing, as recorded in the case stated, and the determinations which the Court made, as recorded in the case stated.

[30]     The Agency has attempted to establish that the District Court Judge has erred by asking himself the wrong legal question, namely was Mr Georgy “driving” or on “rest time” when he was at home while waiting in the virtual queue?  The Agency contends that the District Court Judge should have determined if Mr Georgy was on

“work time”, as that term is broadly defined in the Act and the Rules, when he was at home.

[31]     I do not see this as being a case where the District Court Judge has asked himself the wrong question.  This is not how the case is presented in the case stated on appeal.  The case stated on appeal at paragraph 7 records that the District Court Judge  determined  that  there  were  times  when  Mr  Georgy  was  logged  on  the computer system and waiting in the virtual queue, which were not “work time” for the purposes of the Act.  The issue, therefore, is whether or not the District Court Judge was right in law to reach the determinations recorded at paragraph 7.

[32]     Moreover,  the  judgment  of  the  District  Court  is  consistent  with  what  is outlined in paragraph 7.  Under the regulatory scheme, the terms “work time” and “rest time” are defined.   I consider that it was open to the District Court Judge to look at the evidence before him regarding how Mr Georgy conducted himself while at home when logged into the virtual queue, and determine if this could be “rest time”.  Once the District Court Judge determined this was “rest time”, it followed that it could not be “work time”.  Thus, by this route, the District Court Judge was able to determine that time Mr Georgy spent in the virtual queue at home was not “work time”.

[33]     Like the District Court Judge, I am not satisfied that, in principle, the Act, together with the Rules, can be said to include as “work time”, the time spent by a taxi driver in a computer generated virtual queue.  It seems to me that whether this scenario can amount to “work time” or not will depend on the particular facts of a case and will be a matter of degree.

[34]     Like the District Court Judge, I do not consider that being in a computer generated virtual queue of taxis available for hire is enough to establish that a taxi driver is on “work time” in terms of the Act and the Rules.  A detailed account of the nature of the taxi driver’s activity during the time he is in the virtual queue, and whether or not he considers he is obliged to take any jobs that are offered during this time, must be established.

[35]     When it comes to the second question of whether time spent in the same computer generated virtual queue can count as rest time, I consider that it can, but that this is also dependent on the facts of the case.  It is overly simplistic to consider that being logged in a virtual queue puts you at “rest time”, just as it is overly simplistic to consider this circumstance puts you in “work time”.  As with the first question, whether or not a taxi driver can be seen as being at “rest time” while he or she is logged into a computer generated virtual queue of taxis available for hire will depend on an assessment of the particular facts.

[36]     O’Brien (Labour Inspector) v Guardian Alliance (Auckland) Ltd [1995] 2

ERNZ 170 is a helpful case.  The Employment Court had to consider whether or not an employee who is at home on call out was required to work, which meant there was a breach of the Holidays Act 1981.  The Employment Court stated, at 174, that answering this question “involved an investigation of what amounts to work and whether the performance of actual duties was required”.  Later at 174, the Court said:

... require an employee to work” means demand that the employee should do so.  The word, however, can and these days does bear the milder meaning of need.  An employee may be said to be required for work when he or she is needed to do some work even if (in terms of the contract) turning out to perform such work may be optional.

[37]     The Employment Court noted that it was the Labour Inspector’s case that when it came to public holidays, the employee had no days he could call his own, no days on which he could not be required to come to work if called on, and no days on which he could say that he had the option whether to work or not.

[38]     The employer argued that being on call is not the same as working.  The call in question is a call to come to work, or to return to work, and, therefore, is not work itself.

[39]     The Employment Court noted at 175 that there was:

… no doubt merit in the argument that the employee could not call the day his own because he was at risk of being called out.   He was in a quite stressful situation.  Looking at the day of the public holiday in advance, it can be seen that he could not commit himself to any time consuming activity with any confidence that the activity would not be interrupted by the pager

and need to be curtailed as a result of the succeeding telephone call made in obedience to the pager.

[40]     The Employment Court ultimately decided the matter by assessing the actual facts in relation to the employee before it.  There was no evidence of any activity that  the  employee  felt  he  had  to  forego  on  any  specific  day,  though  the Employment Court   recognised   that   the   employee   most   likely  suffered   from apprehension of being called out.  In fact, he was called upon only rarely.

[41]     The  Employment  Court  considered  it  must  have  been  apparent  to  the employee  that  the  statistical  probability of  being  called  out  was  relatively low, although the possibility was quite  real.   The  Employment Court found that the essence of the Labour Inspector’s case was that the holidays the employee enjoyed were not qualitatively whole, but that this was found to fall outside the scope of the protection in the Holidays Act.   Accordingly, the claim by the Labour Inspector failed and was dismissed.

[42]     What O’Brien reveals is that when dealing with persons who are subject to call out on a paging system, the extent to which they could be said to be working, as opposed to resting, and when resting, having the quality of that rest period impaired, will always be a matter of fact and degree which will turn on a particular case.  It follows that the first and second questions in the case on appeal state propositions that are too general and simplistic for a court to answer absolutely in a yes or no fashion.  Questions of whether a taxi driver is on “work time” or “rest time” entail a fact specific approach.

[43]     In this case, Mr Georgy disputed that he was contractually obliged to take the jobs offered.  The District Court Judge accepted that evidence.  There was evidence that he did not always take the jobs offered.  The District Court Judge accepted this evidence.  There was evidence that while he was at home, Mr Georgy was engaged in personal and household type activities.  This evidence was also accepted by the District Court Judge.   There was evidence that Mr Georgy was alerted to the incoming  job  offers  by  a  pager  system,  and  likewise  the  District  Court  Judge accepted this evidence.

[44]     There  is  nothing  in  the  case  stated  on  appeal,  the  judgment,  nor  in  the evidence which the District Court Judge heard that suggests that while in the virtual queue, Mr Georgy was spending his time at home consciously and continuously monitoring the Corporate Cabs’ computer system.   Yet, without established facts which show that time spent at home was primarily focused on being ready to drive off at notice to a job, it is hard to see how a Court could conclude that time at home doing household and personal activities nonetheless qualified as “work time” under the Act and the Rules.

[45]     Furthermore, the judgment of the District Court shows that the case failed, not as a result of a wrong application of the law but through want of proof.   The District Court Judge was not prepared to rely on the information in exhibit 1, and the investigator’s analysis of that information in exhibit 3, to prove that the conduct of Mr Georgy while at home waiting in the virtual queue was something other than rest time.  This is the only sensible approach.  Whether or not a taxi driver who is in a virtual queue is on “work time” or not will always turn on the circumstances of the case.  For example, a taxi driver who spends most of his day at home sitting in his taxi monitoring the computer for calls to work and who religiously accepts call outs may well be on “work time”.  Conversely, a taxi driver who relies on a pager, who is at home doing various things, such as watching videos and gardening, who has a take it or leave it attitude to call outs, because he sees himself as retired, and who only pays lip service to the taxi company’s requirement for drivers to accept jobs once they have logged on to the system is better seen as being on “rest time”.

[46]     The entirety of the evidence the District Court Judge heard in this case caused him to conclude that while Mr Georgy was at home, he was on “rest time”.  This assessment of the evidence turned on the District Court Judge’s assessment of the credibility and reliability of the defence witnesses, as well as the assessment of the prosecution evidence.  It was open to the District Court Judge to form this view of the evidence before him.

[47]     It will always be the case that a determination on whether a taxi driver at home in a virtual queue is on “work time” will require evidence of what the taxi driver does while in this circumstance.  This will always require more evidence than

a computer generated record of when the taxi driver logged on to the system and when he logged off.  It follows that the answer to questions of law in the case stated on appeal are:

Question one

a)        “Work time” in terms of the Act and the Rules may include time spent in a computer generated virtual queue, but did not do so in this case;

Question two

b)        Time spent in a computer generated virtual queue may be included as

“rest time” in terms of the Act and the Rules, and did so in this case;

Question three

c)        The decision of the District Court Judge was not erroneous in point of law.

Duffy J