REFERRAL OF DISPUTE

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2015 WAIRC 00250

DELIVERED : THURSDAY, 26 MARCH 2015

FILE NO. : RFT 11 OF 2014

Applicant

AND

BGC (Australia) Pty Ltd T/as BGC Transport

Respondent

Catchwords : Owner-driver contract – Referral of dispute – Whether the contract contained an implied term as to termination on notice – Allegations of bullying and harassment – Principles applied – Ongoing contractual relationship – Contract was subject to policies and procedures – Reasonable notice – Conflicting evidence – Conduct in breach of contractual obligations – Repudiation – Principles discussed regarding adverse inferences – No contractual obligation to give notice of termination – Application dismissed – Order made

Legislation :  Owner-Drivers (Contracts and Disputes) Act 2007 (WA)

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr A Dzieciol of counsel

Respondent : Mr D Fletcher of counsel and with him Ms C Vinciullo of               counsel

Solicitors:

Applicant : Transport Workers Union of Australia WA Branch

Respondent : K&L Gates

Case(s) referred to in reasons:

Jones v Dunkel (1959) 101 CLR 298

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115

Morley v Australian Securities and Investments Commission (2010) 274 ALR 205

Payne v Parker [1976] 1 NSWLR 191

Shacam Transport Pty Ltd v Damien Cole Pty Ltd (2013) 93 WAIG 1628

Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch v Sims Metal Management Ltd (2012) 92 WAIG 709

Reasons for Decision

1         The applicant, Mr Derjaha, contracted to the respondent, BGC Transport, to haul cement tankers to service BGC customers. It was common ground that Mr Derjaha was an owner-driver and entered into an owner-driver contract for the purposes of the Owner-Drivers (Contracts and Disputes) Act 2007 commencing in March 2011 and ending in April 2014, in circumstances which are controversial.

2         It was also common ground that Mr Derjaha and another owner-driver engaged by BGC, Mr Strugnell, did not get on.  There were a series of incidents involving Mr Derjaha and Mr Strugnell, resulting in Mr Strugnell accusing Mr Derjaha of bullying and intimidating behaviour. Mr Strugnell raised complaints about Mr Derjaha’s alleged behaviour with BGC.  Matters came to a head in a meeting between Mr Derjaha and BGC management in April 2014.  In that meeting BGC alleges that Mr Derjaha was threatening and intimidating towards management which led to the termination of the owner-driver contract without notice.

3         Mr Derjaha alleged that BGC breached his contract and by these proceedings, claims damages of $30,000 based on an implied obligation of two months’ notice to terminate. BGC resisted Mr Derjaha’s claim on the basis that it contended that his conduct in the meeting with management in April 2014 constituted a repudiation of the contract and furthermore, Mr Derjaha, by his conduct generally, represented an occupational health and safety risk to BGC’s business. There were a number of incidents leading up to the termination of the contract.  I outline them as follows.

Weighbridge incident – November 2013

4         Mr Strugnell testified that he was at BGC’s Hazelmere yard in early November 2013 and was helping another driver with a mechanical problem. Mr Derjaha arrived at the yard and drove over towards Mr Strugnell’s truck.  Mr Derjaha got out of his truck and from some distance away, yelled out for Mr Strugnell to help Mr Derjaha to move a trailer.  Mr Strugnell testified that in doing so, Mr Derjaha was rude and loud. He had not asked for help, certainly not in any reasonable fashion.  Mr Strugnell testified that he said “no” and continued to assist the other driver. According to Mr Strugnell, Mr Derjaha again demanded Mr Strugnell’s help and Mr Strugnell again refused. Mr Derjaha was said to then have told Mr Strugnell to “get f…” and got back into his truck and left.

5         Mr Derjaha denied that he used profane language towards Mr Strugnell. He did not know that Mr Strugnell was assisting another driver at the time, and simply called out for some help to move a tanker and Mr Strugnell ignored him.  Mr Derjaha admitted that he did not request Mr Strugnell’s assistance in a reasonable fashion but said “this was a transport yard”: T26.  Mr Derjaha testified that this incident led to his dislike of Mr Strugnell. Mr Derjaha denied any suggestion from Mr Strugnell that this incident led to Mr Derjaha “badmouthing” Mr Strugnell behind his back.  I pause to note however, that another driver called to give evidence, Mr Karafilis, who is friendly with both Mr Strugnell and Mr Derjaha, testified that Mr Derjaha is very direct by nature, and if asked, would say what he thinks of someone, including Mr Strugnell. He did not however, consider this to be badmouthing Mr Strugnell. On the other hand, Mr Karafilis said that Mr Strugnell was the sort of person to not confront matters directly rather, he would raise his concerns with management. Mr Karafilis also confirmed that Mr Derjaha did not like Mr Strugnell.

Naval Base incident – March 2014

6         The next incident between Mr Strugnell and Mr Derjaha took place at BGC’s Naval Base yard on 7 March 2014.  Mr Strugnell testified that he was at silo 2 loading his truck.  Mr Derjaha was also present loading his truck.  Mr Strugnell testified that he wanted to “clear the air” after his last encounter with Mr Derjaha at the Hazelmere yard in November 2013. According to Mr Strugnell, he approached Mr Derjaha and asked him “what his problem was”.  Mr Strugnell testified that he was shocked by Mr Derjaha’s response when Mr Derjaha called him a “lowlife c…”. When asked again by Mr Strugnell as to Mr Derjaha’s problem, Mr Strugnell testified that Mr Derjaha responded by telling him in words to the effect “you’re my problem. You’ve been telling people about my business”.

7         Mr Strugnell testified that he told Mr Derjaha he did not know about his business.  Mr Derjaha then went up the stairs to the platform from which drivers enter data on a computer to load their trucks with cement.  On doing so, and returning back down the stairs, Mr Strugnell said that he spoke with Mr Derjaha again and asked to “sort out” their difficulties. At this point, Mr Strugnell testified that Mr Derjaha said words to the effect “there’s nothing to sort out, you’re a low‑life c… and that’s all there is to it”.

8         At this point, Mr Strugnell said that he went up the steps to the loading platform.  On his return to the ground level, he again saw Mr Derjaha. According to Mr Strugnell, Mr Derjaha was some seven to eight metres away from him.  Mr Strugnell described Mr Derjaha as “staring at me in an intense and intimidating way. He then started to walk towards me, staring at me all the while, with a fake limp, mimicking the way I walk – I have a prosthetic leg and walk with a limp”. Mr Strugnell testified that he was in shock in response to this deliberate behaviour by Mr Derjaha and could not believe it.  Mr Strugnell then walked away. Whilst Mr Strugnell referred in his evidence to another driver, Mr Anton, being present at this time, and who was said to have had a clear view of the events, Mr Anton was not called by BGC to give evidence and no explanation was advanced for this.  I will comment on this later in these reasons.

9         Mr Strugnell felt so strongly about what had happened in the Naval Base yard that he referred the matter to BGC management on the same day by way of an email.  Mr Strugnell thought he may also have telephoned management as well.  This was confirmed by Mr Houareau, the Head of Logistics for BGC. He testified that on 7 March he received a telephone call from Mr Strugnell. Mr Strugnell told him he had just had “some words” with Mr Derjaha at the Naval Base yard. Mr Houareau testified that Mr Strugnell reported being verbally abused by Mr Derjaha and of more concern, Mr Derjaha had imitated Mr Strugnell’s limp. According to Mr Houareau, Mr Strugnell was upset and wanted the matter investigated. Mention was made by Mr Strugnell of bullying. He was asked to put the complaint in writing which he did by email later that morning.

10      Formal parts omitted, Mr Strugnell’s email of 7 March 2014 is as follows:

I would like to bring to your attention an extremely disturbing demoralising incident that occurred at naval base this morning between myself and Andy Derjha

There appears to be some ' bad blood" on Andy's behalf towards me which I am guessing came from an earlier situation at Bgc hazelmere this was some time ago probably 8 months I think. Since that time I have not spoken to Andy but have received feedback from numerous other subcontractors as to what Andy thinks of me , so this morning at naval base I asked Andy what the problem was and received a verbal barrage of vile abuse like never before .

This i find hard to understand given the trivial aforementioned matter

The thing that has totally destroyed nearly every bit of confidence and strength I have built up was when Andy walked towards me and pretended he had something wrong with his leg , given that i have a prosthetic leg ( due to osteosarcoma high grade my left leg has been amputated thru the knee) first I could not believe what I was seeing then I became extremely emotional about the whole thing (I am having trouble even writing this email )

I thought that nothing would worry me what anyone said or did about my disability but I now find I was sorely mistaken one action has pretty much destroyed all my faith in some people showing any sort of humanity I would like your thoughts on this and what if Bgc have anything in place to deal with something of this nature I would prefer if you email at the moment as I probably won't be able to talk on the phone

11      Mr Derjaha’s version of the events as to this incident was in stark contrast to Mr Strugnell. Mr Derjaha testified that he drove his truck into the Naval Base yard to the weighbridges. He saw Mr Strugnell at one of the weighbridges but ignored him. Mr Derjaha moved to the next available weighbridge and walked up the stairs towards the platform.  Just before reaching the top, Mr Derjaha said he saw Mr Strugnell who was standing on the platform. Mr Strugnell confronted Mr Derjaha and asked what the problem was between them.  Mr Derjaha testified that he told Mr Strugnell words to the effect “I had no problem, and that he was an arrogant p…, and that I had no time for him”.  Mr Strugnell was said to have then said words to the effect “if you keep talking about me I’ll get you sacked”.  Mr Derjaha replied to the effect “who said I’m talking about you”.  Mr Derjaha said that Mr Strugnell hesitated and said it was “Ray”. Mr Derjaha then told Mr Strugnell “you’re full of shit” and Mr Strugnell moved back on the platform so Mr Derjaha could climb the stairs onto it, following which he loaded his truck.  It was common ground that “Ray” is Mr Karafilis.

12      Mr Derjaha denied that he initiated the confrontation with Mr Strugnell, swore at him or imitated his limp. Mr Derjaha also later telephoned Mr Karafilis who said that he had never told Mr Strugnell that Mr Derjaha was talking about him.  Mr Strugnell denied he told Mr Derjaha that he would “get him the sack”. He also denied that he told Mr Derjaha that it was Mr Karafilis who had informed him that Mr Derjaha was talking behind Mr Strugnell’s back.  As to the limping imitation, given that Mr Strugnell had lost his lower leg from cancer, he said that since this incident, it had “burned in my memory for life, I’m afraid”: T82 & T88.

13      Towards the end of the day on 7 March, Mr Derjaha testified that he received a telephone call from BGC’s Operations Manager, Mr Bouwhuis, who asked about an incident with Mr Strugnell at the Naval Base yard earlier in the day.  Mr Bouwhuis told Mr Derjaha that some serious allegations had been made and he was to attend a meeting with Mr Bouwhuis the following Monday at 7:30am.  Prior to this meeting, Mr Strugnell had met with Mr Bouwhuis and explained to him in detail the incident at the Naval Base yard.

Meeting – 10 March 2014

14      At the meeting Mr Bouwhuis asked Mr Derjaha what the difficulty was with Mr Strugnell. Mr Derjaha referred to the incident with the tankers at the Hazelmere yard in November 2013.  Mr Bouwhuis put it to Mr Derjaha that he had imitated Mr Strugnell’s limp. Mr Derjaha again denied it. Mr Derjaha testified that Mr Bouwhuis told him that there were witnesses to this incident. On Mr Bouwhuis’ version of the meeting, he said that Mr Derjaha, whilst initially denying that he imitated Mr Strugnell’s limp, he became somewhat evasive in response to the allegation.  When it was put to him a second time, Mr Bouwhuis testified that Mr Derjaha said words to the effect “alright then …” but suggested that Mr Strugnell also imitates others. However in cross-examination, Mr Bouwhuis said that whilst Mr Derjaha did not expressly admit the allegation by Mr Strugnell, based on Mr Derjaha’s “gestures” in the meeting, he took it that Mr Derjaha was involved: T60. 

15      According to Mr Derjaha, he told Mr Bouwhuis in the meeting that he should either give him a “non-conformance letter” or sack him if he believed that the allegations by Mr Strugnell were true.  Mr Bouwhuis responded to the effect that he did not consider it necessary to take the matter this far, but warned Mr Derjaha to stay away from Mr Strugnell. Mr Bouwhuis also indicated that he told Mr Derjaha if there was any repeat of this sort of conduct that it would be “final”:  T60.

The drawings

16      A little later in April 2014, two drawings appeared on the noticeboard at the Naval Base yard. Photographs of the drawings were annexures AS2 and AS3 to Mr Strugnell’s witness statement. Mr Strugnell testified that he saw the drawings.  The first one, under cover of an email of 5 April 2014 from Mr Strugnell to BGC management, was referred to being posted on the maintenance board at silo 2 at the Naval Base. It contained two photographs of writing, including reference to “Andrew is watching you” along with other derogatory comments.

17      The second was attached to an email of 12 April from Mr Strugnell to BGC management and depicted a person with a prosthetic leg reading a newspaper containing a caption “I’m telling Paul”.  Mr Strugnell testified that the drawings were clearly directed towards him and in particular, at the time of the second drawing, he was in an emotionally low state. He testified that he was contemplating making a complaint to an external body in relation to bullying and harassment in the workplace. Mr Strugnell, because of the previous incidents with Mr Derjaha, assumed that he was involved in “driving them”: T85.

18      Mr Derjaha testified that it was not long after his meeting with Mr Bouwhuis that the drawings appeared.  He denied that he had anything to do with them and said that he in fact tried to rub some of them off the notice board.  However they came back again.

19      On receiving the emails from Mr Strugnell with the attached photographs of the whiteboard drawings, Mr Houareau said that he became concerned about the conduct involving Mr Strugnell in the workplace, which involved a clear breach of BGC’s policies and procedures and was highly inappropriate behaviour. He decided to investigate the matter further.  Mr Houareau testified that he examined the BGC computer system, to identify who had been loading at the Naval Base yard at around the relevant dates and times that the drawings appeared.  According to this information, Mr Houareau identified four drivers who had been present at the Naval Base yard, one of whom was Mr Derjaha. Mr Houareau decided to speak with Mr Derjaha first because of the history of difficulties between him and Mr Strugnell. Accordingly, a meeting was arranged for 16 April at 2pm at the Canning Vale depot.  Mr Houareau also invited Mr Sefton, the Bulk Distribution Manager for BGC Transport.  Mr Sefton also received a copy of the emails attaching the photographs of the drawings sent by Mr Strugnell.

20      On any view, the drawings were highly inappropriate and offensive. 

21      Mr Derjaha confirmed that he received a telephone call from Mr Houareau to meet with him. When asked, Mr Houareau did not say what it was about. Mr Derjaha testified that he did not realise that the matter was serious or that he should have taken somebody with him to the meeting.

Meeting – 16 April 2014

22      The meeting took place at the Canning Vale depot.  Mr Derjaha confirmed that Mr Sefton was also present.  Mr Derjaha testified that Mr Sefton asked him what was going on with the drawings and whether he knew who drew them.  Mr Derjaha told Mr Sefton that he did not know who was responsible.  I pause to observe however, that in cross-examination, Mr Derjaha said that after stating that he rubbed off some of the drawings, he then testified that “I said to one of the fellows that was drawing it, ‘Don’t do that, you’re going to get someone in trouble’”: T25. This was inconsistent with Mr Derjaha’s evidence in chief as to what he told Mr Houareau and Mr Sefton in the meeting on 16 April.

23      Mr Derjaha said that Mr Houareau then told him that he was inciting other drivers against Mr Strugnell and bullying him. Mr Houareau alleged that Mr Derjaha was talking about Mr Strugnell.  According to Mr Derjaha, he told both Mr Houareau and Mr Sefton to get Mr Strugnell into the office and to tell them what he is alleged to have said.  Mr Houareau then responded to the effect that “that won’t be necessary as your services are no longer required”.  Mr Derjaha testified that he was at that point dumbfounded.  He could not believe what he was being told.  Mr Derjaha asked Mr Houareau “if he was for real” and was told that he was. 

24      At that point Mr Derjaha said he pushed his chair out, stood up and pushed the chair back in again.  As the room has a tiled floor, this made some noise. The circumstances surrounding this part of the meeting were controversial. The evidence of Mr Houareau and Mr Sefton was quite at odds with that of Mr Derjaha. According to Mr Houareau as soon as he told Mr Derjaha that he had concerns about what was occurring in the workplace, in particular on 7 March leading up to the drawings, he noticed that Mr Derjaha became defensive and aggressive. He described him as “huffing and puffing”. Mr Houareau gave evidence that “he looked like he was getting ready to get into the ring and have a fight.” Mr Houareau then said he referred to the previous meeting between Mr Derjaha and Mr Bouwhuis, where Mr Derjaha was cautioned and told to get on with the job and keep his mouth shut.  Mr Houareau then said that Mr Derjaha replied in words to the effect that that is what he had done. 

25      Mr Sefton then referred to the drawings.  According to Mr Sefton in his evidence, at that point he also noticed that Mr Derjaha became quite angry and defensive.  When asked what he knew about the drawings, both Mr Houareau and Mr Sefton gave similar evidence that Mr Derjaha replied in words to the effect “do you reckon I drew those things? … That is not my style, to draw things.  If I have a problem with someone, I’ll break their f… jaw.” Both Mr Houareau and Mr Sefton testified that at this point, Mr Derjaha’s tone was very aggressive and threatening.  Mr Houareau said that Mr Derjaha was “staring him down”, and he felt that Mr Derjaha at any moment was “going to jump over the boardroom table and take the matter into his own hands”.

26      It was Mr Sefton’s evidence that Mr Derjaha was so visibly angry that “I thought he was going to lunge over the desk and have a go at Mr Houareau.”  Mr Sefton described the situation as quite unsafe and explosive.  Mr Derjaha denied that he said anything like this and whilst he may have spoken loudly, he was not aggressive. He admitted that he became upset with both Mr Houareau and Mr Sefton in the meeting, because they accused him of something he did not do.  He maintained his denial of imitating Mr Strugnell’s limp.

27      At this point in the meeting, Mr Houareau testified that he said to Mr Derjaha that he was not accusing Mr Derjaha of drawing the pictures, but told him he was a participant in what was occurring with Mr Strugnell, who did not feel safe in the workplace. In view of Mr Derjaha’s reaction to Mr Houareau and Mr Sefton, Mr Houareau testified that he did not feel he could permit Mr Derjaha to return to the workplace under any circumstances.  He formed the view that this would pose a risk to the health and safety of others. Mr Houareau said that he also considered that Mr Derjaha’s reaction in the meeting to both himself and Mr Sefton, amounted to serious misconduct.  He then told Mr Derjaha, in light of all of this, that his services were no longer required. At that point, Mr Houareau testified that Mr Derjaha stared at him for a lengthy time and said words to the effect “so, that’s it is it?” and Mr Houareau replied that “yes it was”.  Mr Houareau said that Mr Derjaha then got up from his chair, hurled it away from the table and stormed out of the room.

28      Ms Baldock, who was then the BGC Transport Coordinator, testified that Mr Derjaha spoke to her immediately after the meeting with Mr Houareau and Mr Sefton. She said that he was upset but not angry and denied that he used colourful language to her when he told her that he had just been sacked.

The contract - was it breached?     

29      As noted above, it was not in contest in this matter that Mr Derjaha and BGC were in an owner-driver and hirer relationship and that the contract entered into in March 2011 which came to an end in April 2014, was an owner-driver contract for the purposes of the OD Act.  Based on the evidence led in these proceedings, I am so satisfied and I find accordingly. A copy of the written owner-driver contract was annexure A to Mr Derjaha’s witness statement. The contract was silent as to notice of termination.

30      I am also persuaded on the evidence that the contract between Mr Derjaha and BGC was an ongoing one, under which Mr Derjaha rendered continuous services until the contract was terminated for breach in April 2014.  Accordingly, I reject BGC’s submissions to the contrary on this issue.

31      I also accept that the contract between Mr Derjaha and BGC was subject to the operation of the relevant BGC policies and procedures.  In particular I accept on the evidence that Mr Derjaha, on at least two occasions, was subject to BGC’s formal induction process.  As a part of this, Mr Derjaha was aware of and agreed to comply with BGC’s policies and procedures in relation to appropriate workplace behaviour; occupational health and safety; and other general matters.  Extracts of the various BGC policies were set out at annexures PB‑1 to Mr Bouwhuis’ witness statement; a copy of the induction declaration signed by Mr Derjaha was annexure PB-2; and the discipline and grievance, and the termination of employment policies were exhibits R4 and R5 respectively. Whilst obviously the former refers to the engagement of employees, it was common ground that these policies also extended to owner-drivers under owner-driver contracts.

32      The Tribunal also accepts the submission of both Mr Derjaha and BGC, that to the extent that the contract was silent as to notice of termination, the law implies a period of reasonable notice. What is reasonable notice will be an issue of fact in each case: Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch v Sims Metal Management Ltd (2012) 92 WAIG 709.  The law also implies a term giving rise to the right by either party to terminate the contract without notice, for fundamental breach: Shacam Transport Pty Ltd v Damien Cole Pty Ltd (2013) 93 WAIG 1628. Further, a contract may be terminated in circumstances where one party repudiates their obligations under the contract, by an unwillingness or inability to perform: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited (2007) 233 CLR 115.

33      Whether, and to what extent, such conclusions should be reached in this case, requires an assessment of the evidence. Given, in important respects, the evidence of Mr Derjaha and BGC conflicted, the Tribunal must determine whose version of the relevant events is to be preferred.

34      I have carefully considered the oral and documentary evidence in this matter.  I have also had the benefit of carefully observing the witnesses as they gave their oral evidence in these proceedings, in terms of their demeanour and response to the questions put to them by counsel. I found Mr Derjaha to be a robust individual who, as the evidence of his character given by others disclosed, is a person who speaks his mind.  As was put by some in their evidence, Mr Derjaha calls “a spade a spade”.  I have no doubt on occasions Mr Derjaha may also have done so in robust language.  I also have no doubt on the evidence, as was put by some witnesses, that Mr Derjaha has a tendency to confront people and tell them what he may think of them, and to some extent, this may be in blunt terms.

35      On the other hand, I considered from my observations of Mr Strugnell’s demeanour in the witness box, and the evidence of others, that he is a more reserved individual and less inclined to confrontation in the workplace. The impression I formed was that Mr Strugnell preferred to resolve matters in other ways, such as raising concerns with management, rather than directly confronting other contractors or employees in the workplace.  In making this observation I do not suggest that this approach to issue resolution is inappropriate or wrong. I have also taken into account the apparent conflict between the evidence of Mr Strugnell and Mr Karafilis, as to whether Mr Strugnell mentioned Mr Karafilis’ name to Mr Derjaha, when Mr Derjaha asked Mr Strugnell who had told him Mr Derjaha was talking about him behind his back. Even if I were to accept Mr Karafilis’ evidence on this point, that does not mean the Tribunal must reject the remainder of Mr Strugnell’s testimony.   

36      I also find that the other witnesses called by BGC, in particular Mr Houareau, to be credible witnesses.  Having regard to all of these matters, where the evidence of Mr Derjaha and witnesses called by BGC was materially in conflict, I prefer the evidence of the BGC witnesses. I expand on my reasons for so concluding when considering my findings on the various incidents outlined above.

37      I accept that in November 2013, when Mr Derjaha requested assistance from Mr Strugnell to move tankers at the Hazelmere yard, Mr Derjaha did so in an abrupt manner.  I do not regard this as an altercation of any real kind.  However, I am prepared to accept that Mr Strugnell’s refusal to assist Mr Derjaha resulted in Mr Derjaha may well levelling some abuse at him. On Mr Derjaha’s own admission, he formed a dislike of Mr Strugnell after this encounter. Given Mr Derjaha’s natural inclination to speak his mind, I am also satisfied that Mr Derjaha would not have hesitated to express his opinion of Mr Strugnell to others, as and when the occasion to do so arose.

38      As to the Naval Base incident, this matter raised two interactions. The first was the allegation of abuse on the steps and platform above the weighbridge. The second was the allegation that Mr Derjaha imitated Mr Strugnell’s limp, due to his prosthetic leg. As to the first, I accept that Mr Strugnell spoke with Mr Derjaha when he saw him, about what the difficulties were between them, in light of the previous encounter. I accept this was met with a response from Mr Derjaha as alleged by Mr Strugnell. In particular, by this time, Mr Derjaha had formed a positive dislike for Mr Strugnell and considered that Mr Strugnell had been “badmouthing” Mr Derjaha behind his back. Secondly, Mr Derjaha’s response to Mr Strugnell was more consistent with his accepted tendency to be blunt and confrontational in his communication style. Thirdly, and importantly, shortly after the incident on 7 March, the evidence was that Mr Strugnell spoke to Mr Houareau and told him what occurred. This was confirmed by Mr Houareau. Also, Mr Strugnell put his allegations in writing following his conversation with Mr Houareau, by an email to him of 7 March, which was annexure AS-1 to Mr Strugnell’s witness statement, as set out above. Both the telephone call to Mr Houareau and the email to BGC management were consistent and contemporaneous with the incident, as narrated by Mr Strugnell in his testimony.

39      For the same reasons, I also find Mr Derjaha did imitate Mr Strugnell’s limp after the initial verbal confrontation. The description of the event, in the email of 7 March from Mr Strugnell to BGC management, was detailed and specific.  Additionally, I carefully observed Mr Strugnell in the witness box when he gave his evidence about the incident and the impact of the imitation of the limp on him, given the loss of his lower leg to cancer previously. I consider that this conduct of Mr Derjaha was thoughtless and callous.  I do not consider that it was done in any frivolous or jesting fashion. I accept Mr Strugnell’s evidence at pars 41-46 of his witness statement, as to the impact of this incident on him.

40      As to the meeting of 16 April, I accept the testimony of Mr Houareau and Mr Sefton regarding Mr Derjaha’s response to matters raised with him during the course of the meeting.  I accept that Mr Derjaha may have been upset at the issue of drawings being raised with him. This would be consistent with his overall demeanour.  In particular, I found Mr Houareau to be an impressive witness and I accept his account of Mr Derjaha’s response when Mr Sefton raised the drawings with him. Mr Houareau’s testimony on this issue was supported by Mr Sefton, who was also present. Both gave evidence on the reaction of Mr Derjaha to the issues put to him, in a forthright and compelling manner. 

41      As noted above, there was also some inconsistency in Mr Derjaha’s testimony in relation to his knowledge of the drawings. Mr Derjaha told Mr Sefton in the 16 April meeting, that he did not know who was responsible for them.  However, in cross-examination, Mr Derjaha admitted to telling one of the “artists” to stop because he would get people into trouble. Therefore Mr Derjaha clearly had some knowledge of these matters, which he did not disclose in the 16 April meeting. 

42      Therefore overall, I am satisfied on balance that Mr Derjaha did engage in the conduct complained of by BGC. On the basis of the policies of BGC, and general standards of acceptable conduct in the workplace, I am satisfied that the conduct of Mr Derjaha was a breach of his obligations to BGC, which went to the root of the contract. In particular, Mr Derjaha’s conduct toward BGC management in the meeting of 16 April was inconsistent with his obligations to BGC and a repudiation of them. Whilst I accept the submission from counsel for Mr Derjaha that it would have been better for BGC to have informed Mr Derjaha of the purpose of the meeting prior to it, and perhaps also, suggested that Mr Derjaha may wish to have someone present at the meeting, this does not fundamentally alter the position. These proceedings, as counsel for Mr Derjaha properly conceded, are concerned with the parties’ contractual rights, and not whether the termination of the contract was industrially unfair.

43      Having regard to all of the circumstances of this case, I am not persuaded that it has been demonstrated by Mr Derjaha, that in the termination of the contract with Mr Derjaha, BGC was in breach of its contractual obligations.

Jones v Dunkel

44      There was a submission from Mr Derjaha that the failure by BGC to call Mr Anton, said to have been present at the Naval Base yard on 7 March, leads to a Jones v Dunkel (1959) 101 CLR 298 inference being drawn adverse to BGC. The “rule in Jones v Dunkel” is an evidentiary principle which, in broad terms, provides that an unexplained failure by one party to a proceeding to call a witness that they would be expected to call, may lead to an inference that the witness’ evidence would not have assisted that party’s case (see generally Heydon JD, Cross on Evidence (10th ed, 2015) par 1215). The rule is not an absolute one and there are many qualifications. Importantly for present purposes, where the case of a party not calling the witness is otherwise proved, any adverse inference does not detract from the established case: Morley v Australian Securities and Investments Commission (2010) 274 ALR 205. Furthermore, the rule will not have application unless it would be natural for one party, rather than the other, to call a particular witness: Payne v Parker [1976] 1 NSWLR 191.

45      In this case I have found on the evidence that the events as outlined by Mr Strugnell did occur, based on a preference for his evidence over that of Mr Derjaha. My reasons for reaching this conclusion have been set out above. In particular, I have found the contemporaneous events of 7 March, of the telephone call and email from Mr Strugnell, the latter setting out the incident in some detail, as being persuasive in my findings. Given that state of affairs, even if an inference could be drawn from the failure by BGC to explain Mr Anton’s absence, it would not displace the other evidence, supportive of the version as outlined by Mr Strugnell.  Additionally, had Mr Anton’s presence been known to both parties, it would not necessarily follow, that only BGC would be expected to call him.  He could equally have been called by Mr Derjaha.

46      I therefore do not draw any adverse inference in these circumstances. 

Conclusion

47      In this case the Tribunal has concluded that Mr Derjaha and BGC were in an ongoing owner-driver contract from March 2011 to April 2014. I am satisfied that Mr Derjaha was aware of and agreed to be bound by BGC’s policies in relation to appropriate conduct in the workplace.  Consistent with the Tribunal’s findings, set out above, the Tribunal accepts that Mr Derjaha was in breach of fundamental obligations under the contract, which entitled BGC to terminate the contract without notice.  Accordingly, the application must be dismissed.