Details 

Created: 02 October 2019

The Road Freight Transport Industry Tribunal has dismissed a claim by an owner-driver that alleged the respondent contravened an agreement where the applicant would deliver concrete as directed by the respondent ('Cartage Agreement') by summarily terminating it without payment of compensation. The respondent terminated the Cartage Agreement under clause 9.1(i) following the investigation of an incident where the applicant had drove his truck towards a person, which resulted in the truck contacting the person (the incident).

The Tribunal considered the meaning of cl 9.1(i) i, set out below:

"Holcim may terminate the cartage agreement of an Owner granted by this Agreement immediately and without compensation to the Owner:

…

(i) in the event of a fundamental breach by the Owner, or its Driver, of this Agreement, including, but not limited to:

1. Serious and wilful misconduct (including, theft, violence or violent threats and fraud);…"

The Tribunal determined that regardless of the type of conduct or behaviour, the conduct must be a fundamental breach.

The Tribunal then considered the evidence of the incident and concluded that the applicant's conduct, when he continued to drive towards a person who was moments before standing in his clear vision, was both serious and wilful misconduct. Further, that even if the applicant's conduct was not serious and wilful misconduct it would be a serious safety breach under cl 9.1(f) of the Cartage Agreement which would also justify the respondent to summarily terminate it without compensation.

In relation to the applicant's claim that they were denied procedural fairness in the course of the respondent's decision making, the Tribunal found that it does not have jurisdiction to consider general notions of industrial or procedural fairness and that no exception applied. In the alternative, the Tribunal considered that procedural fairness had not been denied to the applicant who had received ample opportunity to explain the incident, was given a copy of meeting notes from the investigation, was shown footage of the incident several times and was given the opportunity to, and did in fact, have a support person present at the incident investigation meetings.

Finally, the Tribunal considered whether the respondent's offer to the applicant of a further five-year contract if they agreed to do certain things induced the applicant to enter the contract. The Tribunal found that the respondent had not misrepresented the contract to the applicant because the applicant received independent advice and none of the evidence suggested that the applicant had felt misled. Also, any prior representations were overtaken by the fact that the parties had entered into a further Cartage Agreement that contained an “entire agreement” type of clause, ruling out any prior representations, which were not, in any event, fraudulent. Additionally, even if a misrepresentation was established, the Tribunal expressed doubt on what relief it could grant.

The decision can be read here.

The Road Freight Transport Industry Tribunal has made a declaration and issued orders for the payment of an alleged balance of monies owed to the applicant pursuant to an owner-driver contract. The Tribunal was satisfied that the applicant is an owner-driver and that despite the referral to the Tribunal being made after the termination of the owner-driver contract, the Tribunal had jurisdiction to deal with the applicant’s claim.

It was determined by the Tribunal that an oral owner-driver contract was entered into by the parties in or about July 2017 for the supply and heavy vehicle transportation of building sand. The respondent paid a portion of the balance owed to the applicant, giving rise to the remaining debt being outstanding.

The Tribunal considered that there is no capacity to institute third party proceedings to compel a third party to cover monies that they may owe and found that the respondent does owe the outstanding balance to the applicant plus interest.

The decision can be read here.

Wednesday, 27 February 2019

The Road Freight Transport Industry Tribunal has dismissed two claims made by the applicant arising from an owner-driver contract between the applicant and the respondent.

The Tribunal considered the first of the two issues raised by the applicant and found that they had not brought any evidence to show that the respondent had engaged in unconscionable conduct in relation to the acquisition of the applicant's services. The Tribunal found that the applicant did not provide any information on the circumstances leading to him entering an unfair owner-driver contract or that the owner-driver contract was uncommercial or unfair in any way.

The Tribunal considered the second of the two issues raised by the applicant and found that there was no evidence or argument brought which suggested that the price that the applicant was paying for fuel, a discount of 11%, was not substantially cheaper than bowser price and contrary to the owner-driver contract.

The Tribunal dismissed the applicant's claims.

The decision can be read here.