Tuesday, 17 November 2015

Transport Workers' Union (NSW) v Toll Transport Pty Ltd (t/as Toll Contract Logistics) [2015] NSWIRComm 36

Court Provided Information: EMPLOYMENT LAW – Contract of carriage – Application for reinstatement of contract – Applicable principles – Whether "harsh, unjust or unreasonable" – Unconfined discretion – Informed by subject matter, scope and purpose of the Industrial Relations Act 1996 (NSW) – Serious misconduct as grounds for termination – Allegedly driving dangerously and unlawfully – Behaviour in breach of Road Rules 2014 (NSW) – Civil standard by virtue of nature of proceedings – Unlawful behaviour – Allegedly untruthful when questioned by management – Applicant was truthful as to knowledge of dashcam – Applicant was untruthful as to frequency and mode of use of horn – Whether damage or potential damage to respondent's reputation – Driving conduct could cause reputational damage to respondent – Broad submission that applicant being untruthful during investigation could lead to damage or potential damage to respondent's reputation – The Commission should not speculate on potential reputational damage to respondent in this manner – Failing to provide a satisfactory mitigating response – Applicant provided adequate opportunity to respond – Applicant not a credible witness – Justifiable basis for termination – Process of investigation was fair – Decision to terminate was reasonable and proportionate – Circumstances not harsh – Application dismissed.

LEGISLATION CITED: Evidence Act 1995 (NSW) s 140(2); Industrial Relations Act 1996 (NSW) ss 314, 315; Road Rules 2014 (NSW) r 224

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Source: Thompson Reuters Alert: 151112CA-0596

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