Scott Boggs Vs Mamone Express Transport Pty Ltd [2005] NSWIRComm 1059 (21 February 2005)

Last Updated: 26 April 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Scott Boggs Vs Mamone Express Transport Pty Ltd [2005] NSWIRComm 1059

FILE NUMBER(S): 5961

HEARING DATE(S): 21/02/2005

EX TEMPORE DATE: 21/02/2005

PARTIES:

APPLICANT

Scott Boggs

RESPONDENT

Mamone Express Transport Pty Ltd

JUDGMENT OF: Murphy C

LEGAL REPRESENTATIVES

APPLICANT

Scott Boggs appeared in person

RESPONDENT

Mr Perry of Counsel

CASES CITED: Smith Vs Director General of Education 51 IR 204

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

16

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MURPHY C

22 April, 2005.

Matter No IRC 5961 of 2004

SCOTT BOGGS AND MAMONE EXPRESS TRANSPORT PTY LIMITED

Application by Scott Boggs re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

EX TEMPORE DECISION

[2005] NSWIRComm 1059

1 This decision was given by me Ex-Tempore on 21st February, 2005, but is now issued with minor changes as contemplated at the time.

2 The applicant commenced in his employment with the respondent on 7 April 2004 and according to his application and his case before this Commission, was dismissed on 24 December 2004. The applicant was unrepresented during these proceedings, although assisted in the latter parts of the case by his brother at the bar table. The applicant was the only one to give evidence in support of his case.

3 The respondent was represented in these proceedings by Mr Perry of counsel, and the respondent's case, through Mr Perry, was presented through the evidence of Mr Mamone, a director of Mamone Express Transport and by Ms Roseanna Mamone, an employee of a major contractor and cousin of Mr Mamone. Her position is of a clerical capacity engaged by a major client of the respondent mentioned later in these proceedings and her major role was to liaise with the respondent's employees, such as the applicant, Mr Boggs, in the distribution of work for the actual client.

4 The applicant’s dismissal surrounded the work conducted on behalf of this major client, Advanced Pallets, who employed Ms Roseanna Mamone. The incident which occurred, leading to either the applicant’s voluntary leaving of his employment by abandonment, (according to the respondent), or by the applicant being dismissed, occurred on 24 September.

5 The applicant’s evidence was given firstly in written form, which included his original application marked exhibit 1. The applicant’s evidence-in-chief was delivered through exhibit 2. His rebuttal of Mr Kevin Mamone’s statement, was exhibit 3. His rebuttal of Roseanna Mamone’s statement was exhibit 4. The respondent’s evidence was given firstly by Mr Kevin Mamone in the form of exhibit 5 with some attachments, which included, firstly, what purported to be a break down of the applicant’s payments compared with the state award. That was annexure A to exhibit 5 presented by Mr Mamone. Exhibit 6 was the evidence in written form of Ms Roseanna Mamone.

6 The applicant’s evidence in summary, was that on 24 September, around lunchtime, he approached Roseanna Mamone at the client’s premises where she worked, Advance Pallets, and informed her that he was feeling unwell and would like to finish early to see his doctor before the close of business. It was his evidence that Roseanna Mamone actually gave the okay for that to occur.

7 The applicant stated in his evidence that he went to go on to the next delivery and upon return, was approached by Mr Mamone who asked, “What do you think you are doing?”, to which the applicant answered “I was feeling sick and would like to leave early to go to the doctors”. He was then told by Mr Mamone that he would need to do a further load or else he - Mr Mamone - would need to find another driver.

8 The applicant says he asked the question, “Are you sacking me?”, to which Mr Mamone replied, “No, you are refusing the last load, so I need to employ someone else to do the work. Do not bother coming in on Monday, you have left.” The applicant further claimed: “I told Mr Mamone I am only leaving to see my doctor, I am not leaving my job.” On Monday, the 27th, the applicant spoke to Sabrina Mamone, the sister of Mr Kevin Mamone on the telephone who was employed by the respondent in a clerical capacity. She advised the applicant to come in at 2pm to the client’s premises, Advanced Pallets, from which most of the respondent's employees operated from, to pick up his pay. When he got there, he was met by Mr Mamone, who apparently confirmed that he had no job and handed him a cheque for $1990 for which he signed. He asked for a termination letter, to which the reply came from Mr Mamone, “You will get nothing else from me.”

9 The respondent’s case, on the other hand, was somewhat different. Its evidence, as I already indicated, was given firstly by Mr Kevin Mamone in exhibit 5, and he was cross-examined by the applicant in respect of this evidence. In the early stages of his affidavit, he dealt with the system of paying the applicant, whereby he was paid over award wages and in return he would be asked to work additional hours from time to time. I must say straight off that this was rather an understatement, because the attachment to the respondent’s own affidavit showed a little more than from "time to time", it was a considerable amount of overtime, in many cases very close to 60 hours a week.

10 In the other parts of his evidence, Mr Mamone gave evidence that, (as I have already indicated) the attachment showed him receiving more money than he would have received under the award. But that statement ignores the question of overtime penalties, and can I say at this point, that I am not satisfied with the evidence given by Mr Mamone that this system of payment to the applicant is anything other than a device to circumvent the award. He goes on to give evidence of the value and importance of the Advanced Pallets contract and what it is worth to the company. He goes on to claim that it was usual for the applicant to come to him in respect to various matters of holiday pay, sick leave and other issues, although acknowledging that Roseanna was in charge of paperwork in respect of the major client. This claim of having to go to Mr Mamone on leave issues was disputed by the applicant.

11 I also note then at this point that the applicant was not so much after sick leave, as simply not to do the last run in circumstances where the applicant gave evidence of starting at around 5 o'clock in the morning, and that whilst the evidence was not entirely clear as to the precise time that he is knocking off before the last shift, it was most probably, I believe, around 3.30 to 4 o'clock.

12 He goes on to claim that the applicant was a troublesome employee and then goes to suggest certain warnings were issued to the applicant, the most important one, I think, and the only one that I saw any real relationship with this claim was one of refusing loads for no reason. It was claimed that this occurred on or about 28 July and also a number of other occasions. These occasions are not specified beyond that bald assertion. He also claimed that he actually said to the applicant at one point, “Scott, you have to deliver the loads, it is not good enough to simply not delivery them".

13 Poor attitude and manners were another claim against the applicant, slamming the office door of the major client, Advanced Pallets, and also having to be ticked off about the parking of the truck in the driveway of Advanced Pallets, having received complaints against a particular officer by the name of Attard employed by the client Advanced Pallets. It is also claimed the applicant regularly failed to clean the truck and continued to fail to clean it after being asked. During the period of July to August, he failed to complete his running sheets. Sabrina Mamone, the sister of the respondent, had commented to the sister of the respondent that Mr Boggs did not fill out his work sheets and therefore it was difficult to accurately calculate his pay. Again, in August it was suggested the applicant failed to put odometer readings on fuel receipts and Sabrina Mamone had told Mr Boggs to continue to properly complete his pay period on sheets provided, although again that may be a question of hearsay.

14 An issue raised by the respondent, which was naturally of some concern to the Commission was that the applicant is allegedly involved in the improper handling of drugs. According to Mr Mamone’s evidence, he was appraised of the matter by an employee, Jason Oliverio on or about Friday, 24 September, words to the effect, “Scott Boggs has offered me drugs.” The response to Mr Oliverio was allegedly, “What, are you serious? I told you, including Scott, that I do not want any drugs in my trucks. This gives me a bad name, you know my rule about drugs. I hope you are not using while driving my vehicles.” Note: this was said to Mr Oliverio the alleged informant.

15 The respondent gave more relevant important evidence that he checked all the vehicles, found a pair of scissor, which he said smelt of marijuana, and approached the applicant confronting him with words to the effect, “What is the story with you using drugs in my truck, I found a pair of scissors that smelt like marijuana in the truck.” The applicant allegedly said in response to the respondent, “It is my business what I do with my life, anyway, what about your other drivers.” There was a slight variation on that given in oral evidence by the respondent, which included the fact that the applicant had used the expression, “The other drivers also use drugs”.

16 On Friday, the 24th September, during the afternoon already canvassed above, the respondent’s account of the conversation over the incident was as follows, in summary form, where he asked the applicant, “Can you take that load to Wetherill Park?” To which the applicant responded, “No, I cannot, I have a doctor’s appointment.” Mr Mamone, “How can you, you have not told me.” Mr Boggs, “I told Roseanna.” Mr Mamone replying, “You do not work for Roseanna, you work for us. Take that load, it has got to go or else.” Mr Boggs, “Are you sacking me?” Mr Mamone, “No, I want you to take the load out.” Mr Boggs - “All right, then, I am going.”

17 The respondent contended that he observed Mr Boggs taking the keys out of the truck, handing them to him and collecting his belongings. Mr Boggs then attended the premises on Monday, the 27th, asked for payment of his wages, was handed a cheque for the amount that he already mentioned, which covered his wages for the week and holiday pay.

18 There was then evidence attempted by the respondent going to a significant claim that the applicant was employed already for some three months prior to his dismissal in December. That again was based on what Jason Oliverio had said to him in August with words to the effect, “Scott Boggs has a part-time job at Brown’s”. Can I mention now that I find it extremely difficult to believe that the applicant should have been able to have a part-time job, whilst employed by the respondent, given the apparently inordinate number of hours he was working for the respondent. It is simply unbelievable.

Final Submissions:

19 Can I deal very briefly with the submissions of the applicant before me. The applicant asked me to believe that he had been truthful; indicating the fact that his old employer is willing to have him back, speaks for his reliability; that he worked hard for the company, was fully committed, but that he was unfairly dismissed. He finished by saying again that he was truthful and reliable and an honest person.

20 The submissions of Mr Perry for the respondent included the most important section going to the applicant’s credit. He quite understandably, I believe, went to what - he believed were some inconsistencies in the applicant’s evidence. These, for instance, included the time at which he was allegedly dismissed in relation persisting in going to the doctor’s at 5.30. Also targeted by Mr Perry was his statement in evidence in respect of his conversation with Mr Te Maari of Brown Brothers, his prospective new employer, in respect of whether or not he had told that officer of Brown Brothers that he was going to attract a higher rate of pay with his new employer. The Commission itself also saw some indications of inconsistency with the applicant, and these were again considered later by the Commission.

21 Mr Perry reminded the Commission of the evidence of the respondent where the applicant has allegedly refused loads. Again, he talked about the credibility of the applicant as already mentioned in respect of what times that he had conversations on 24 September, when Mr Perry said that it was essentially agreed that the respondent said to him, if you cannot take the load, then he had an option to not go to the doctor or to take the load and save his job.

22 Mr Perry raised the prospect that it was not credible that the applicant could not have gone to the doctor over the weekend. That was an issue to which Mr Perry had taken the applicant in cross-examination. He believed the Commission should clearly find that the applicant had no such Friday afternoon appointment with the doctor, albeit saying to the respondent that he had an actual appointment. It was certainly clear from the applicant’s own evidence there was no appointment as such on the Friday, according to Mr Perry.

23 He believed that the Commission should not find these as "isolated forensic titbits", as Mr Perry called them. Mr Perry submitted that it was in fact inexact, imprecise evidence, which when put into context of the confluence of the whole evidence, showed the applicant's evidence was not to be preferred over the respondent’s evidence. He pointed out the difficulties in reading too much into Dr Tran’s reference to the fact that the applicant had attempted to have an appointment on the 24th. This was merely what he had been told by the applicant, rather than the more precise reference and what would have been more believable. In fact, Dr Tran said that the applicant was observed by him as attempting to see him on the Friday.

24 Mr Perry again took the Commission to the fact that the applicant was given a choice as to what he had to do, to go off to his doctors or to take the load, and he clearly chose to abandon his employment. In the alternative, Mr Perry asked the Commission to take into account that, while procedural unfairness may be found by the Commission to some extent, that the applicant had not discharged the onus in certain respects. In particular, he referred to the Brown re-employment mentioned earlier, and that there was a connection in relation to the refusal to take loads on a regular basis, and the events of the final afternoon. Although the warnings were not competent as such in respect of Section 88 of the Act, there was nonetheless an attempt to give them and the reason why these warnings were not more stringent, it was the evidence of the respondent that he decided to keep employees on side, rather than give more aggressive warnings.

25 Finally, Mr Perry asked the Commission to take into account what actual loss the employee suffered where he enjoyed a new salary that is between $750 and $800 a week compared with the $900 that he was attracting with the respondent, and that he was not unemployed for very long.

26 Mr Boggs’ brother in final submissions, asked the Commission in reply to Mr Perry’s statement, to take into account that every effort had been made to contact the respondent in the proper manner on 24 September to alert him to the need to go to the doctor. Much of what Mr Boggs put to me in support of his brother’s case, however, was relying on his own knowledge of the applicant and did not quite relate back to the evidence. Nonetheless, I have noted what he has said, but only in the context of the evidence available.

CONSIDERATION:

27 The main questions for the Commission were whether or not the applicant was dismissed or whether he abandoned his employment; but to determine, firstly whether the applicant is to believed in respect of the statements made, or whether the evidence of Mr Mamone was to be preferred over the applicant.

28 Clearly by the applicant’s version, he was dismissed and in most serious circumstances, where he had attempted to seek approval or at least put the respondent through Roseanna, on notice of leaving early, and where he sought to leave work to attend for a legitimate exercise.

29 Another question for the Commission in relation to that, was as to whether the applicant had actually told the respondent, through Ms Roseanna Mamone, and at the key time of lunchtime that he had a doctor’s appointment. Also included in those important questions, was whether the applicant’s conduct in the latter months of his employment consistent with a refusal - or as Mr Perry put it, as high as a "regular" refusal of loads.

30 There are subsidiary questions, of course, such as to whether or not the applicant did actually attend the doctor on the 24th at around 5.30 pm, whether he was held up in that exercise, as he maintained, by the conversation with Mr Mamone which led to what he claimed as his dismissal. And then of course, there is not much disagreement as to what happened at 2 o'clock on the 27th, where the applicant was given his final pay, which included his salary.

31 My findings in respect of that, firstly, are that the respondent appears to have had the applicant’s final payment made up, although Mr Mamone’s evidence was that he (Mr Mamone) turned to Roseanna Mamone to ask "what is the go", I think was the statement. The evidence seems to indicate that consistent with the applicant’s evidence, that his payment was made up on the 27th. It might still be argued, of course, that the respondent believed that the applicant abandoned his employment on the 24th. However, it appears there was absolutely no intention by the respondent to clarify or renegotiate the situation.

32 So, to answer a lot of these questions, I have - as Mr Perry quite naturally and quite rightly pointed out - firstly to look at the applicant’s credibility where there were some indicia of inconsistency. And I have been concerned where I even identified those, as I say, myself. However, the evidence of the applicant was characterised, firstly, may I say, his demeanour in the witness stand was of an honest, earnest person. However, issues such as where he gave what appears to be shifting evidence as to there being two conversations that afternoon with Roseanna, seemed to conflict somewhat with his other evidence to suggest that he had said to Roseanna Mamone that "this would be my last shift". I gained the distinct impression, however, that the applicant’s apparent shifting on that question was little more than confusion, and I am satisfied that in effect there were two conversations, where at lunchtime the applicant had warned Roseanna Mamone that he had a doctor’s appointment and would need to finish early, when she appears to consent, and that later in the afternoon, (that is an hour or two later), he again stressed when he came in, "this is the last load". Shortly afterwards, having packed the next load for the respondent to deal with, he was confronted by Mr Mamone, as described and leading to his dismissal.

33 On another point, raised by Mr Perry, I do not find anything serious about the evidence of the applicant saying to Brown Brothers Transport that he was going to enjoy a higher salary - I think it was sufficiently explained by the applicant why he said such a thing, which he conceded. The applicant’s evidence did vary in certain minor respects, but overall, I had no real reason to disbelieve him and put the imperfections down to genuine confusion in the pressure of giving formal evidence of which he seemed not only inexperienced, if not slightly daunted.

34 Can I deal with the respondent’s credibility also in this. I found Ms Roseanna Mamone not to be an independent witness, and whilst it is not something which can automatically be held against a witness that they are a blood relation or that they are currently employed and therefore might owe allegiance to the respondent, the Commission is nonetheless entitled to be on the alert in respect to the character of this evidence. Her evidence had to be considered in the context of not being truly independent, largely because of the unconvincing way she presented her evidence, with a lack of detail.

35 I find it very unlikely that he refused loads in the manner suggested by the respondent. There may have been occasions that he had worked excessive overtime as he appears to have done on a regular basis, and therefore knocked back shifts, particularly in the last month where he worked close to 60 hours a week. That level of overtime is excessive. I do not have to find precisely whether or not this arrangement with the applicant to be paid $900 net per week in return for working 60 hours was in violation of the award, I suspect it was in the absence of proper details of overtime rates, and as I have already commented, I am not satisfied by the glib treatment by the respondent of the issue in attachment A as to those differences to the award. Part of the reason I am not satisfied by the attachment to the respondent's statement is that the equation just does not seem to add up and the respondent made no effort to go through those documents with me to convince me that it was not at least a very loose and very likely illegal arrangement attending the applicant's system of work. Certainly no enterprise agreement existed to cover such a one-sided arrangement.

36 On the other hand, I have had to look at the character of the applicant as I have assessed during these proceedings today through his evidence. I believe the refusal to take loads would be uncharacteristic of him, when I found him to be unusually respectful to others and deferential. It was part of that diffidence, I think, which led him to appear to be less than precise in some of his evidence. For instance, without guile, he conceded at one point that his memory was not too good, but I think a more shrewd witness, of course, would never make such a statement and overall the applicant was without guile in the style he gave the evidence and I am entitled to take this into account along with his convincing demeanour.

37 The respondent gave no particulars of those alleged refusals to do loads, which led me to believe that they were a concoction for these proceedings here today. I have already commented on the applicant’s working 60 hours a week, which would logically have provided a legitimate reason for such refusals, if they did occur. The respondent was not to be believed on this score, and that attempt to discredit the applicant backfired against his overall credit in comparison with Mr Boggs. I was similarly unimpressed with his vague assertions of supposedly warning the applicant about anything and the alleged use of marijuana must be treated with the greatest of care, especially given the evidentiary burden involved in such a loose allegation.

38 I feel it is therefore unlikely that the applicant had simply to Ms Mamone, "this is my last job". Such a statement would have been uncharacteristic. If he had done so as alleged, it is inconceivable that Ms Mamone would not have said to the applicant, words to the effect, "what are the reasons for that" or otherwise been querulous of such non-cooperation. There is no evidence of that, no convincing detail given by her as to why the applicant allegedly simply refused to work. What is interesting, of course, is that in the respondent’s evidence himself, the chief representative of the respondent, which is Mr Mamone admitted being told by the applicant that he had a doctor’s appointment.

39 Other evidence before the Commission shows that the applicant had a terminal illness which he declined to give details of, which the Commission did not compel him to do on the basis of his request not to disclose something which he said, was embarrassing for him in front of the respondent.

40 Given that the respondent even by his version was fairly quickly alerted to the fact that the reason for the applicant’s early departure that afternoon was to go to the doctor, it behoved the respondent Mr Mamone to be somewhat more ameliorating than he was with the applicant. As far as the claim that the applicant had a choice between going to the doctor and doing the last load, I do not believe that it was reasonable for him to be put in that position. I believe (given that I have indicated that I found the applicant to be a truthful witness, and I have already indicated an area where I believe the respondent is not to be relied upon), that the applicant had indicated to the respondent that he had to see his doctor. I also accept that he sought verification from the respondent as to whether he was being dismissed at that point, having already been told that he needn’t come Monday unless he did the last job, and somebody else would be employed to take his job. If there was any doubt, it was up to the respondent at that stage when he had been aware quickly, even by his own version of events, that the applicant had a doctor’s appointment - to have shifted his unreasonable position to give the applicant the benefit of that doubt. The substantial overtime worked at a flat rate without payment of penalty rates as provided by the State award, should have been taken into account by the respondent.

41 In Smith v Director General of Education (51 IR 204), it was made clear by the Full Bench of this Commission that a dismissal can occur other than with the words such as, "you are dismissed". The concept of a "sending away" was enunciated in that decision and although the respondent's words were plainly intended to terminate the employment of Mr Boggs, he was at least sent away with the intention of ceasing the employment. There was another opportunity for the respondent to resile from its dismissal of the applicant, so apart from my finding that the applicant was dismissed on the 24th by being sent away, on Monday, the 27th, there was a clear option for the respondent, when approached by the applicant, through Roseanna Mamone, seeking to reopen the question of his dismissal. After telling her he was unable to contact Kevin or Sabrina, that is, the respondent and the respondent’s sister, he told her “I had a doctor’s appointment on Friday, that is why I left. What is happening to my job?” Her reply was in words to the effect, “Scott, don’t talk to me, I work for Advance, you work for Mamone’s, you have to speak to Kevin or Sabrina and sort it out with them.” So at that stage the applicant asked clarification with the question, “What is happening with my job?” This is despite asking a person not actually employed by the respondent, but who was clearly in an influential position - effectively controlling the applicant's work load.

42 An appointment was then made by Roseanna Mamone for Mr Boggs to attend the respondent's premises, where he should pick up his pay at 2pm that Monday, but no attempt was made by the respondent to clarify the issue as to whether or not the applicant was leaving.

43 There was one other point to the applicant’s credit which arises from the issue of his use of the words, “I have a doctor’s appointment”. He conceded that strictly speaking, he had no appointment as such, but it was a loose arrangement with his doctor over some three years as a patient with a terminal illness, where he availed himself of the opportunity after half past four to call in. I believe the applicant that on that occasion, he did attend the surgery, that he was sighted by Dr Tran, and although Dr Tran did not mention it in his certificate to the same extent that he perhaps should have, that the applicant was told by him that it was too late for the appointment. As to not attending a doctor over the weekend, the applicant attempted to explain from the bar table, which I cannot accept as evidence because it was not previously given whilst under oath. But I think it is plausible enough that the applicant’s evidence of the condition that he suffers was something that he had to manage himself and therefore he stuck with his Monday appointment. Neither am I concerned about the applicant's use of the words "appointment" when he asked to leave early and when confronted by Mr Mamone, as it is a minor inaccuracy to very likely ensure the employer's acquiescence in his departure for the purpose of attending the doctor.

44 The major findings of the Commission in this case are that the applicant was dismissed; that the applicant effectively gave notice to the respondent at lunchtime through Roseanna Mamone that he had a doctor’s appointment, that he later in the afternoon said to Roseanna Mamone, “This will be my last job”, and that despite this earlier notification, the applicant was confronted by Mr Mamone, who did not straight away acknowledge that he knew of the doctor’s appointment, but was very quickly informed about the doctor’s appointment, and despite that knowledge, dismissed the applicant by stating that if he was not prepared to do the last job, he would have to find somebody else to take his place. But not just for that shift, as suggested by Mr Mamone’s statement. In any event, Mr Mamone also followed up by the statement not to bother to come in on Monday. The respondent, when given the opportunity to revise that decision on Monday, chose to continue to regard the applicant as being dismissed.

45 The applicant was therefore dismissed in circumstances which are clearly unfair, highlighted by the fact that he worked an excessive amount of overtime not paid for in the proper terms of the award, and when for a legitimate purpose, announced to the respondent, he was refused permission to attend his doctor

46 In looking at what compensation to award to the applicant, I have taken into account the relatively short period of unemployment of the applicant, which is in evidence. Also his earnings, when he did achieve employment with Brown's Transport. The first period of unemployment was some 12 calendar days, the second alternative employment was when he went back to an old employer. However, I should also take into account that the applicant was clearly at some loss, when he worked for Brown’s. The applicant’s loss in respect of the new job is a little indeterminate at the stage of hearing. The reason the applicant left Brown’s is apparently because they sold the company and he was concerned about several factors, not the least of which is to start all over again with an uncertain future with the new company that he was unfamiliar with, whereas he went back to an old employer. All told though, I take into account that the applicant was at a loss, which is likely to be ongoing.

47 At the same time, I take into account the degree of harshness and unfairness in this decision, and I believe a fair compensation to the applicant would be to award him 10 weeks salary at the rate of $1145 gross, rounded off to $11,400.

O R D E R S

48 Mamone Express Transport Pty Limited is to pay to the applicant Mr Scott Boggs in Matter Nor. IRC 5961 of 2004 an amount of $11,400 gross within 21 days of the release of this decision, i.e. from 22nd April, 2005.

J P MURPHY

Commissioner

oOo

LAST UPDATED: 26/04/2005