Freeman v Kat Taxi and Hire Cabs [2005] NSWIRComm 1169 (21 November 2005)

Last Updated: 22 November 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Freeman v KAT Taxi and Hire Cabs [2005] NSWIRComm 1169

FILE NUMBER(S): 576

HEARING DATE(S): 22/08/2005

DECISION DATE: 21/11/2005

PARTIES:

APPLICANT

Transport Workers' Union of New South Wales on behalf of Mark Freeman

RESPONDENT

KAT Taxi and Hire Cabs

JUDGMENT OF: Macdonald C

LEGAL REPRESENTATIVES

APPLICANT

Mr G Astorga, union offical

Transport Workers' Union of New South Wales

RESPONDENT

Mr R Gogic, owner

in person with Mr G Coates, operations manager

CASES CITED: Outboard World Pty Ltd v Muir (1993) 51 IR 167

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MACDONALD C

21 November 2005

Matter No IRC 576 of 2005

Transport Workers' Union of New South Wales (on behalf of Mark Freeman) v KAT Taxi and Hire Cabs

Application by Transport Workers' Union of New South Wales on behalf of its member Mark Freeman re unfair dismissal pursuant to section 314 of the Industrial Relations Act 1996

_____________________________________________________________________________

DECISION

[2005] NSWIRComm 1169

1 This is an application by the Transport Workers' Union of New South Wales ("the Union") on behalf of its member Mr Mark Freeman for unfair dismissal against KAT Taxi and Hire Cabs ("the Respondent") pursuant to section 314 of the Industrial Relations Act 1996 ("the Act").

2 The matter was set down for Conciliation and Directions on 8 March 2005. The matter did not settle and a Hearing and filing program was put in place.

3 At the Hearing, the Union was represented by Mr G Astorga, union official, who called Mr Freeman as a witness.

The Respondent was represented by Mr R Gogic, the owner and Mr G Coates, operations manager. Mr Gogic was called as a witness.

BACKGROUND

4 Mr Mark Freeman is a bailee taxi driver and has been since 1991.

5 He took up an offer from Mr Geoff Coates to drive a St George Taxi on a casual basis. He started driving a taxi on 26 August 2004.

6 On Monday, 18 October, Mr Freeman held a meeting with Mr Coates and Mr Gogic (the owner). The latter put a proposal to Mr Freeman to sign a workplace agreement. Mr Freeman was not interested. He wanted to have his working conditions governed by the Taxi Industry (Contract Drivers) Contract Determination ("the Contract Determination"). This industrial instrument gave an election to the taxi driver (the bailee) as to the method of remuneration for his or her taxi work.

7 On Friday, 22 October, Mr Freeman advised Mr Gogic that he had decided on his choice as to how he would be remunerated as a taxi driver. He had decided on Method 1 found in the Contract Determination.

8 Further conversations and correspondence took place between Mr Freeman and Mr Gogic over the issue of how Mr Freeman would be remunerated for his work. Mr Freeman stood his ground on his choice to be remunerated per Method 1.

9 On Saturday 6 November, Mr Freeman received a facsimile from Mr Coates advising that the Respondent had no work available (no bailment) for Mr Freeman.

10 Mr Freeman, per his Union, lodged an application for a contract determination of reinstatement pursuant to s.314 of the Act.

FINAL SUBMISSIONS

For the Union

11 Mr Astorga, for the Union, sought reinstatement of Mr Freeman's bailment with the Respondent. He made the following points:

a) The Respondent had breached the Contract Determination which sets out two methods of remuneration for bailees. It is for the bailee (Mr Freeman) to elect which method of remuneration applies to him. This election is given to him pursuant to the Contract Determination.

b) The Respondent had denied the bailee this election process and offered him one type of remuneration only.

c) The bailee was terminated for not accepting the method of remuneration proffered by the Respondent. This was a form of victimisation.

d) The bailee was a permanent bailee from the third week onwards as he was then driving five days per week.

e) The bailee sought reinstatement of his contract determination and payment for all lost monies.

For the Respondent

12 Mr Coates, for the Respondent, made the following submission:

a) The bailee was offered a bailment for seven weeks on a very temporary basis. He was filling in for another driver who had gone overseas for seven weeks.

b) The bailee was offered a bailment based on a particular method of remuneration (known as Method 2 under the Contract Determination).

c) The bailee was not offered Method 1 as it requires a lot of trust between the bailor and the bailee.

d) The bailee was offered an individual agreement after the very temporary engagement and the bailee declined to accept the terms of that agreement.

For the Union in Reply

13 Mr Astorga rejected the claim that the bailee had been engaged on a very temporary basis. The Union reiterated that the bailee had been dismissed on Sunday, 24 October.

CONSIDERATION

14 The Commission has before it, an application for reinstatement of a contract of carriage pursuant to s.314 of the Act.

In considering that application, the Commission must have regard to the following issues that arose from these proceedings:

a) The Respondent's claim that the bailee (Mr Freeman) was not a permanent employee but only filling-in on a very temporary basis and therefore the bailee was not entitled to bring his claim before this Commission.

b) If the Commission rejects the Respondent's contention in paragraph (a) above, did the facts of the case establish that the bailee was a permanent employee and therefore entitled to bring his claim before this Commission?

c) Had the bailee resigned his employment as claimed by the Respondent?

Issue - Temporary or Permanent Employee?

15 The Respondent claimed that the bailee was a temporary employee. More correctly, in the context of the language of the Contract Determination, Mr Gogic said that the bailee had been engaged as a casual.

16 Mr Gogic also said that the bailee had been engaged for a period of several weeks only - on a fill-in basis.

17 In assessing the competing claims as to whether the bailee was engaged as a casual or permanent bailee, it is not necessary to consider the terms of engagement of the bailee. That is, it is not necessary to consider any oral (conversations) or written evidence between the parties as to how and why the bailee was engaged.

This is so, because the Contract Determination sets out the law pertaining to the relationship that can exist, at law, between a bailor and a bailee.

18 The Contract Determination (Schedule A to exhibit 1) states that there are two types of bailees: casual or permanent - (clause 2 Definitions). Thus:

· A casual bailee is a bailee who is not a permanent bailee.

· A permanent bailee is a bailee who regularly takes a taxi cab on bailment from the one bailor. Relevantly, given the circumstances before myself, the concept of "regularly takes a taxi cab on bailment", is explained as a bailee who is on bailment "for five shifts per week": (Clause 2(b)).

19 Given that there are two types of bailees only (casual or permanent) described by the Contract Determination, what effect does that have on the circumstances of the case before myself?

There is the submission by Mr Gogic that the bailee was only engaged for a fill-in position. Whether that was so or not (this issue was in dispute), one has to have regard to the operation of the Contract Determination.

The Commission assumes, for the sake of explanation, that the bailee was offered a fill-in position for several weeks. That type of offer/engagement is catered for by the Contract Determination in that it provides for the engagement of casual bailees.

The bailor (Mr Gogic) then offered the bailee extra shifts - three extra shifts per week - making for a total of five shifts per week. Mr Gogic confirmed that the bailee worked two shifts only for the first two weeks but in the third week and thereafter, the bailee worked five shifts per week. (Tr 22/08/05 - p 33, lines 25 - 35)

The consequence of increasing the bailee's shifts to five per week, per the operation of the Contract Determination, is that the bailee's legal status changed from casual to permanent bailee.

Accordingly, the Commission rejects Mr Gogic's submission that the bailee was engaged as a fill-in casual for several weeks only.

20 In coming to the above conclusion, the Commission made an assumption that the bailee had indeed been offered a fill-in position for several weeks only. This was the submission of Mr Gogic that that was how the bailee had been engaged. This was disputed by the bailee who deposed he had been offered two shifts per week by Mr Coates but that there was no reference to a fill-in position for several weeks only. Indeed the bailee deposed in his statement that not only had he been offered two shifts per week but that he, the bailee also indicated to Mr Coates that he was after something more permanent. (exhibit 1 - para 2)

21 Mr Gogic disputed this claim of the bailee but was not in a position to do so. Mr Gogic was not a party to the telephone conversation between Mr Coates and the bailee. Whatever Mr Gogic submits as to this telephone conversation is hearsay. And Mr Coates did not file a witness statement and did not give evidence in the proceedings. This meant that if the Commission had to determine the contents of that telephone conversation between Mr Coates and the bailee, then the Commission would have given preference to the version of the conversation put forward by the bailee because he appeared as a witness in the proceedings. Mr Gogic appeared as a witness but he was not a first hand party to the telephone conversation.

Issue - Termination or Resignation?

22 Mr Gogic submitted that the bailee had resigned his bailment and therefore the bailee could not bring his application before this Commission.

Mr Coates did not appear as a witness but did appear as an advocate for the bailor (the Respondent). Mr Coates put to the bailee (who was in the witness box) that the bailee had resigned his bailment. The circumstance for putting that to the bailee surrounded the offer of a written contract by Mr Gogic to the bailee. Thus, after the bailee was working the five shifts per week, matters came to a head between the parties, when Mr Gogic pressed the bailee to sign a written contract which provided, inter alia, for a certain type of method of payment for the bailee. The bailee was offered the Method 2 type of payment - but this was not acceptable to the bailee (who wanted to be paid under Method 1).

23 Mr Coates put to the bailee that he had resigned his bailment when he refused to be paid under Method 2. The bailee denied this and said he had been terminated when Mr Gogic said (in response to that refusal): "You can work out the week." The bailee did not work out the week but finished up on the spot. (Tr 22/08/05 - p 20)

24 When Mr Gogic was cross-examined by the Union on this issue, he said that the bailee had not been terminated with a week's notice because the bailee was a casual and therefore was not entitled to notice. It was correct that Mr Gogic had given a week's pay to the bailee when matters came to a head, but this was not, he said, a week's pay in lieu of notice. Mr Gogic reiterated that the bailee was a casual bailee.

25 The Commission has already formed the view that the bailee was a permanent bailee, by operation of the Contract Determination.

When Mr Gogic said repeatedly, under cross-examination, that he had not terminated the bailment of the bailee, because the bailee was a casual, then he was not addressing the issue before the Commission - that is, whether there had been a termination or a resignation of the bailment.

26 Having considered the material before the Commission, I find that Mr Gogic terminated the bailee's bailment. In that regard, the Commission highlights the following evidence:

(a) The bailee deposed that Mr Gogic said to him: "I don't want this Method 1. You can drive the cab for this week if you wish but on no circumstances will I accept this Method (that is, Method 1)." (exhibit 1 - para 13)

(b) Mr Gogic's witness statement does not directly deny the above conversation as reported by the bailee. But Mr Gogic relies upon a handwritten letter from the bailee which he alleges is a resignation letter. Thus, the bailee said: "In the meantime I don't think it appropriate I drive your cab for one last week." (exhibit 3 - attachment 1)

(c) The same attachment 1 (alleged resignation letter) puts the alleged resignation in context. That is, the bailee prefaces the alleged words of resignation by referring to Mr Gogic's rejection of the bailee's decision to opt to be paid under Method 1.

(d) There is evidence before the Commission (witness statements and oral testimony) that the dispute between the parties, as to the continuing engagement of the bailee, was over the method of remuneration - Method 1 or Method 2 - for the bailee.

27 When the Commission considers this evidence as a whole, the Commission finds that Mr Gogic offered a written contract to the bailee and which set out the method of remuneration for the bailee as Method 2.

The bailee rejected Method 2 and said he would be paid per Method 1.

After some toing and froing, Mr Gogic rejected the idea of applying Method 1 and said words to the effect: "You (the bailee) drive the cab for the rest of the week." In other words, Mr Gogic would have none of paying the bailee per Method 1. Under cross-examination, as to the application of Method 1 or Method 2, he said:

(a) "(Method 2 is) a method that's run throughout the industry ... No-one goes by this (Method 1)".

(Tr 22/08/05 - p 26)

(b) "(Method 1 is) Not in my or any yard in Sydney".

(Tr 22/08/05 - p 28)

These quotes from the transcript of Mr Gogic's views on his preference for Method 2 (plus the Commission's observation of the demeanour of Mr Gogic when he expressed his preference for Method 2) confirm the Commission's finding that Mr Gogic would have none of the bailee's preference to be remunerated per Method 1.

Accordingly, the Commission finds that Mr Gogic terminated the bailment between himself and the bailee when the bailee would not accept payment under Method 1 for driving a taxi.

28 For completeness of the record, the Commission points out that under the Contract Determination, it is for the bailee (and not the bailor) to decide as to whether Method 1 or Method 2 will be applied as remuneration for driving a taxi - (Clause 3. Method of Payment (specifically clause 3(i)(a))).

Jurisdiction

29 The Commission has before it, an application for reinstatement of a contract of carriage pursuant to s 314 of the Act.

30 The Commission has the jurisdiction to entertain that application pursuant to s 314(1)": "The Commission may, after inquiry, make a contract determination with respect to the reinstatement of a contract of bailment or a contract of carriage that has terminated."

Accordingly, the Union is entitled to pursue its application for reinstatement of the bailee's contract of carriage before the Commission, under s 314(1).

CONCLUSION

31 The Commission has before it an application by a bailee for reinstatement of his contract of carriage with his former bailor (KAT Taxi and Hire Cabs). The bailor opposed that application on certain issues. The Commission has considered and rejected those issues.

Having considered the case as a whole, the Commission concludes that the dismissal of the bailee was unjust: Outboard World Pty Ltd v Muir (1993) 51 IR 167. At the heart of the bailee's dismissal was his exercising of his legal right per the Contract of Determination, to choose his method of remuneration.

Accordingly, the Commission orders the reinstatement of the contract of carriage between the bailee and bailor.

32 The bailee also sought reinstatement of his bailment without loss of monies.

There was no agreement between the parties as to the bailee's weekly remuneration. The Commission orders that the parties are to confer on this matter, and failing agreement as to the bailee's weekly remuneration, then the matter is to be relisted before the Commission.

ORDERS

33 The Commission hereby makes the following order:

(a) The Applicant (Mr Freeman) is to be reinstated by the Respondent (KAT Taxi and Hire Cabs) into his former position as bailee having at least five shifts per week - unless Mr Freeman agrees, by consent, to a different number of shifts.

(b) The employment of the Applicant is to be taken not to have been broken by his dismissal.

(c) The Respondent is to pay the Applicant the sum of money he would have earned, but for the dismissal. The parties are ordered to confer on this particular order, and failing agreement as to the bailee's weekly remuneration then the matter is to be relisted before the Commission on 21 December at 9.00am for a Report Back.

(d) These orders of the Commission shall take effect on and from 21 November 2005.

A Macdonald

Commissioner

LAST UPDATED: 21/11/2005