B v Brisbane City Council T/A Brisbane Transport

[2010] FWA 3856

[2010] FWA 3856

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

B
v
Brisbane City Council T/A Brisbane Transport
(U2009/14988)

COMMISSIONER SPENCER BRISBANE, 29 SEPTEMBER 2010

Termination of employment - Arbitration - Bus driver Applicant removed child from bus - valid reason.

Introduction

[1] This determination relates to an application made by the Applicant (name suppressed) 1 pursuant to s.394 of the Fair Work Act 2009 (the Act) that his termination of employment from Brisbane City Council trading as Brisbane Transport (the Respondent) was harsh, unjust and or unreasonable. The Applicant sought reinstatement as the appropriate remedy.

[2] The Applicant was employed by the Respondent as a Bus Operator from November 1997 until his dismissal on 17 December 2009 for a breach of the Council Code of Conduct for ejecting a child from a bus. The Respondent in the letter of termination detailed how this behaviour represented a breach of policy. The Respondent stated the Applicant physically removed a child from the bus by pulling his arm and pushing him out of the bus door and that “the potential dangers and consequences of your actions to the child, family, friends, customers and Council may have been considerable.” The Applicant denied the Respondent’s allegations regarding the manner of evicting the child.

[3] The Applicant was represented by Mr Luke Tiley, solicitor on secondment to the Rail Train and Bus Union (the Union), and the Respondent was represented by Mr Chris Murdoch of Counsel, instructed by Brisbane City Legal Practice (a Branch of the Brisbane City Council).

[4] Mr Murdoch was granted permission to appear, in response to an objection from Mr Tiley. A decision pursuant to s.596 of the Act was provided in transcript at the commencement of proceedings.

[5] Whilst this determination does not refer to all submissions, evidence or material all of such have been considered in this determination.

Relevant legislation

[6] The unfair dismissal remedy application was made pursuant to s.394 of the Act. In determining whether a dismissal is harsh, unjust or unreasonable, the matters listed in s.387 of the Act are relevant considerations. These two sections of the Act are set out below.

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

...

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

Background

[7] The Applicant was employed as a Bus Operator pursuant to the Brisbane City Council Transitional Enterprise Bargaining Certified Agreement 2008 (EBA6). 2

[8] It is agreed between the parties that on 3 December 2009, the Applicant ejected a child (name withheld) 3 from the school bus that the Applicant was driving. It is further agreed that at the time, the child was later collected by his mother from a nearby child care centre where the child had walked.

[9] The Applicant submitted that the child had been misbehaving on the bus and that a bag had been thrown on the bus.

[10] Although the child’s mother (name withheld), herself, had not made a complaint to the Respondent regarding the driver’s conduct, the Deputy Principal (name withheld) of the child’s high school made a verbal complaint on the same day as the incident, after receiving a phone call from the mother. 4

[11] Following the incident, the Applicant telephoned the Depot Supervisor of the Toowong Bus Depot (the Depot), Mr Douglas Cullen, advising him of the situation. When the Applicant returned to the Depot, Mr Cullen informed the Applicant that he was stood down with pay. A meeting was convened between Mr Cullen, Mr Scott Ingham, the Depot Manager, and the Applicant on 4 December 2009. The Applicant prepared a memorandum of the incident on 4 December 2009. On 9 December 2009, the Applicant received a Show Cause letter by Courier at his home address.

[12] The Applicant received two versions of the letter, because one was incorrectly addressed (and later rescinded). Due to this administrative error, the response period available to the Applicant was compromised, however the Applicant responded on 10 December 2009. His response contained an apology for inconveniencing the Respondent, and detailed his regret at his actions. He described having ‘a crisis of mind’, and outlined the sequence of events, including the conversation with the child’s mother and his conversation with Mr Cullen. He also discussed his subsequent visit to his doctor, and that he had obtained a referral to a professional counsellor to understand why he had such ‘an uncharacteristic outburst’. He explained that his General Practitioner and professional counsellor identified that he was suffering from depression, and that he was ‘proactively dealing with my depression and I can guarantee that such a situation will not occur again’. The Applicant then sought the Respondent to allow him to return to work, stating ‘my punishment has been to be at home over these past days reflecting over my actions’.

[13] The Respondent did not consider this response sufficient to justify the events, and terminated the Applicant’s employment on 17 December 2009. A letter of termination was provided, and on 22 December 2009, the Union made an application for unfair dismissal on behalf of the Applicant. The Termination Letter was in the following terms:

“17 December 2009

Dear [Applicant]

After careful consideration of all of the information submitted to me on this matter including your response to the ‘show cause’ letter 10 December 2009, it has been determined that you have not provided sufficient justification to the allegations of physically removing a child from the bus by pulling his arm and pushing him out of the bus door.

Your behaviour represents a breach of Council Code of Conduct:

“2. THE SECOND PRINCIPLE - Respect for persons

(a) Ethics Obligation

A public official should treat members of the public and other public officials -

honestly and fairly; and

with proper regard for their rights and obligations

A public official should act responsively in performing official duties.

(b) Standards of Conduct

(i) Customer service

All Council staff must strive to provide excellent customer service. They must treat members of the public with honesty, fairness, sensitivity and dignity.

All Council staff serve ratepayers directly or indirectly. If your role in Council involves regular contact with the public, it is important to know how to deal comfortably and calmly with difficult situations and difficult people.

Customers have a right to complain or criticise Council. While you must make all reasonable efforts to help customers lodge complaints, if you think a situation is threatening or intimidating, you are entitled to withdraw. If in doubt, ask for help from a more experienced colleague, or a team leader/supervisor.

Council will support any employee who believes they are under threat from a member of the public.

4. THE FOURTH PRINCIPLE - Diligence

(a) Ethics Obligation

In performing his or her official duties, a public official should

exercise proper diligence, care and attention; and

seek to achieve high standards of public administration

(b) Standards of Conduct

(i) Diligence, care and attention

Council aims to conduct its business with integrity, honesty and fairness, and to achieve the highest standards in service delivery. You contribute to this aim by carrying out your duties honestly, responsibly, in a conscientious manner, and to the best of your ability. This includes:

Giving priority to official duties over personal activities during work time

Helping Council achieve its mission and goals by acting to improve systems and practice

Conducting yourself in a way so others gain confidence and trust in the way Council does its business; and

Not allowing your conduct to distract or prevent others from working

You are also in breach of TransLink Business Rules and Procedures Clause 11.1. Refusing a child which is detailed in the Bus Operator Handbook.

You are also in breach of the School Code of Conduct.

The potential dangers and consequence of your actions to the child, family, friends, customers and Council may have been considerable.

Accordingly, your employment with Brisbane City Council is hereby terminated and will take effect from today’s date. In accordance with EBA6 Extension II you will receive 4 weeks pay (from the date of this correspondence) in lieu of notice.

It is expected that you will return any Council property...

I advise this notice concludes your employment with Brisbane City Council.

Yours sincerely

Alan Warren

Divisional Manager

Brisbane Transport” 5

Policy Documents

[14] Central to this determination are the application of the Respondent’s Policy Documents to the conduct of drivers in the operation of the public bus service. For convenience, extracts of the documents have been set out below.

[15] The Code of Conduct is the Respondent’s guide for employees in dealing with customers and other employees. The Respondent’s termination letter specifically relies upon the second and fourth principle of this Code. They are set out in the termination letter.

[16] The termination letter refers to a breach of the Bus Operator Handbook. The Brisbane Transport Bus Operator Handbook 2008 is a document which states on the front cover ‘This booklet is to be carried with you at all times whilst at work’. The relevant statements of the Handbook as referred are set out.

“Basic Customer Safety

...

ALWAYS give priority to the safety of all children. Never refuse children on to a bus.

...

School Children Code of Conduct

You have been issued with a copy of the Queensland Transport ‘Code of Conduct’ for school children travelling on buses. The document is quite detailed and sets out specific categories of behaviour and suggested courses of action. You are required to familiarise and apply the Code of Conduct at all times.

The Code of Conduct - School Children is a requirement of the Queensland Department of Transport and does not replace or alter the requirements of Brisbane City Council Code of Conduct referred to on page 8.

...

Refusing Passengers

...

YOU MUST NOT REFUSE TO CARRY CHILDREN” 6

[17] The Code of Conduct for School Bus Travel and the ‘Handling difficult situations with students A Pocket Guide for Bus Drivers’ were also identified as relevant documents. These are dealt with in more detail later in this determination.

Evidence

[18] The Applicant provided an Affidavit and was accordingly cross-examined.

[19] The Respondent relied upon the following evidence; all of these witnesses were cross-examined:

• Mr Douglas Cullen - Depot Supervisor, Toowong Bus Depot, Brisbane City Council;



• Mr Scott Ingham - Depot Manager, Toowong Bus Depot, Brisbane City Council;



• Mr Alan Warren - Divisional Manager, Brisbane City Council; and



• The mother (name withheld) of the evicted child.

The incident

[20] The Applicant submitted that there were juvenile passengers (approximately 13 years of age) on the bus that were disturbing him in his duties; which resulted in him forming the view that he needed to take some action. The Applicant said that the passengers were “fighting, rumbling, what have you” and that he tried to “nip any trouble in the bud”. 7 He stated that a student on the bus threw a school bag at the driver’s seat area, and that this startled him. He further stated:

“I identified the student responsible for the Second Disturbance by approaching the third student, who had followed the 2 reprimanded students to the front of the bus, and asked him in words to the following effect:

“Is this your bag?”

That student indicated that it was his bag. I said words to the following effect:

“That’s it. You’re off. Get off this bus”

The student did not move and made it clear that he was not willing to voluntarily leave the bus. He responded to my directive by shouting:

“NO”

I picked up that student’s bag and placed it on the footpath outside the bus, indicating that he was to leave the bus.

As a result of the student’s continued refusal to leave the bus I put my hand on his left arm and led him from the bus.

Once the student was in the doorway of the bus with his back to the driver’s seat I placed my hand on his back and guided him out the door of the bus. This guiding was in the form of a gentle push.

In hindsight I should not have made physical contact with the student however it all happened very quickly in the heat of a stressful incident, by which I was panicked. In any event, my contact was assertive but was not at all violent. At no point did I strike, drag, pull or physically abuse this student in ejecting him.” 8

[21] The Applicant, under cross-examination said that he had guided the student off, using a gentle push without any undue physical force and that when ejecting him, the Applicant did not shove the student or use two hands to push him (contrary to the student’s version of the incident) and that the student had not complained of any pain. 9 Nevertheless, the Applicant conceded that in hindsight, there were other options available to him, and that he regretted the action taken by him during the incident.10

[22] The Applicant provided a set of contemporaneous notes written on 4 December 2009 in memorandum form. Mr Murdoch sought to show a difference between the notes of 4 December 2009 and the affidavit provided by the Applicant. It was submitted by Mr Tiley that there was no material difference between the two versions of events. 11

[23] The child’s mother was disinclined to allow her son to provide evidence at the hearing; however, the child had prepared a short statement that was provided to the school (that was attached to the mother’s Affidavit), it stated: 12

“I moved seats to say Hi to one of my friends. The bus driver then stopped the bus, to the side of the road and said ‘GET OFF’, and I didn’t. So he grabbed my bag, and said ‘is it yours?’, I said nothing. He then chucked it out the door, and said ‘get out!’. I didn’t move. So he then grabbed me, then pulled me out of my seat. Then I was holding the bar, connected to the front door. Then he started shoving me, then shoved me out of the bus. When I was out the bus, he said ‘piss off you little shit’. I grabbed my bag, then walked to ABC Childcare. Before the incident I moved [throughout the bus] three times.”

[24] The Deputy Principal phoned the Respondent’s Call Centre on 4 December 2009 and provided them with that statement also.  13

[25] The child’s mother provided evidence by subpoena. The mother became involved when a staff member of the childcare centre (where her other child was in care) called her to say that her son was there and upset after the bus driver had removed him from the bus. She stated that, knowing her son and daughter were safe at the childcare centre, she went to try and find the bus driver to confront him. In the meantime, she contacted the school. She found the bus and confirmed with the bus driver that he had thrown her son off the bus by using physical contact.

[26] The mother provided evidence regarding her discussion with the Applicant on the afternoon of the incident as follows:

“The bus driver initially seemed to try and defend what he had done and said something about my son being a little shit and him being angry with his behaviour. I said that I was angry also and explained to the driver that my son had purchased a ticket to get him from point A being school to point B being home and that the bus driver failed to deliver him to home and had instead left him in an unfamiliar spot. I told him I was concerned for my son’s welfare. I stated again that he should not have touched my son. I also stated that my son did not have a mobile phone. I asked to hear the bus driver’s side of the story.

The bus driver stated that my son had been moving about at the rear of the bus and that he had changed seats. He stated that he told my son to stop moving around and that [he] did not listen and that was the reason he threw him off the bus. At no stage did he say that [the child] or anyone else had thrown anything at him or that he had been startled by a loud noise. He did say that he had lost it and maybe he shouldn’t be driving buses anymore. Toward the end of the conversation I could tell that the bus driver felt bad about what had occurred. I asked him for his details and he stated that his name was [the Applicant]. I then went and picked up my son and returned home.” 14

[27] The mother agreed that the Applicant’s demeanour changed during the course of their conversation, indicating his remorse. She was not present at the incident, but relied on her son’s account to her, that his bag was thrown off the bus, and he was physically forced from the bus. The Applicant submitted that no weight should be placed on the mother’s evidence as she was not present during the incident. 15 The Respondent relied on the mother’s evidence derived from her son’s account of the incident and her verification of the incident as a result of the discussion with the Applicant.

Policy documents

[28] The Applicant stated, in relation to his knowledge of the policy documents, as follows:

“As at 3 December 2009, I:

a. knew that the Council Code of Conduct and Bus Operator Handbook existed;

b. was not aware of the Translink Business Rules and Procedures of the School Code of Conduct;

c. did not have intimate knowledge of the contents of any of the Policy Documents; and

d. had never been given paid working time to examine the policy documents.

I recall that in October 2009 I received approximately 7 hours training in relation to the customer service obligations of a BCC Bus Operator. I do not consider that this training was of assistance in relation to the incident in question as it was so:

a. unusual;

b. dangerous;

c. fast moving; and

d. unlike the scenarios that we had received training in.

To the best of my knowledge the Policy Documents do not provide, explicitly or otherwise, that a Bus Operator is prohibited from removing a passenger from a bus because that passenger is a juvenile.

My understanding has always been that in certain circumstances a Bus Operator will be obliged, in the interests of safety, to eject a passenger from a bus (whether an adult or juvenile passenger). 16

[29] In relation to the Bus Operator Handbook and the Council Code of Conduct, the Applicant signed a Confirmation Form 17 on 22 September 2008,18 which was his acknowledgement of receipt of the documents, and that he would review and familiarise himself with those documents, and an acknowledgement that he was required to follow all instructions and policies contained therein.

[30] The Applicant confirmed that he knew of the Bus Operator Handbook and had confirmed he had received such and familiarised himself with it, and that he carried it with him in his cash tin on the bus. 19 The Applicant refuted that he had been given the Council Code of Conduct, as he had assumed the Handbook and Code were the same thing. However, he recognised that he was aware of the Code and the principles contained therein, and that he had attended refresher training on 22 October 2009.20

[31] The Applicant admitted he was aware of the existence of the Code of Conduct for School Students Travelling on Buses, however stated that he had not received a copy of it. He further denied that he had received a copy of the pamphlet in relation to the Code of Conduct for School Students Travelling on buses.

[32] During cross-examination, the Applicant was taken to two flyers dated 10 September 2009 and 20 November 2009 attached to Mr Cullen’s statement 21 which served as reminders to bus operators of their responsibilities in giving priority to children passengers and that they were not to refuse to carry a child. The Applicant confirmed that he was aware of the requirements set out in the flyers, but that he had never seen the Code of Conduct for School Students Travelling on buses.22

[33] In any event, the Applicant distinguished ejecting a child from a bus in comparison to refusing to carry a child on a bus. 23 The Applicant considered that to the best of his ability he followed the Bus Operator Handbook. He further affirmed that the Bus Operator Handbook allowed for ejecting a person from the bus in certain circumstances,24 and therefore felt his actions were justified (whilst simultaneously regretting them). However, immediately under this section (in bold, capitals and underlined) in the Handbook, it states: YOU MUST NOT REFUSE TO CARRY CHILDREN.

[34] Mr Ingham, Depot Manager, confirmed that the Code of Conduct for School Bus Travel was readily available to drivers at the Depot as was the brochure ‘Handling difficult situations with students’. It was his firm view that the Council Code of Conduct prohibits removing a passenger from a bus by the principles of “respect for people” and “diligence” 25 confirming that it is a breach of the Code for there to be physical contact between the driver and a passenger.26

[35] Mr Ingham stated that the Code of Conduct is more general, whereas the Bus Operator handbook provides more specific information. He confirmed that page 23 of the Bus Operator’s Handbook refers to the Code of Conduct for school children. His evidence was that these were more than just recommendations, that “[the Respondent had] an overriding responsibility to ensure that, you know, children who catch our services, you know, jump on at point A and go through to point B, so I don’t shy away from that responsibility”. 27

[36] Mr Ingham’s evidence was that the words “not refuse to carry” are clear and unambiguous, but conceded that the bus operator’s role in dealing with the public and traffic involves high pressure situations and he appreciated this part of the driver’s role. He agreed that a driver couldn’t always refer to the Handbook, however he stated that for an experienced driver like the Applicant, who would have experienced a range of situations over his time of employment, it would be unlikely he would need to consult the Handbook.

[37] From the outset Mr Ingham, in assessing the matter, considered the incident was a serious breach of policy and he was not confident of the outcome for the Applicant. It was his view that the behaviour could not be condoned by continuing the employment relationship.

[38] Mr Ingham stated he supported the Applicant’s dismissal. He stated that in his time with the Respondent, “I don’t think I have seen a more serious breach of the Code.” 28 His evidence was:

“I support the decision to terminate the Applicant’s employment as his actions on 3 December, 2009 were reprehensible. The Respondent cannot accept behaviour from its bus operators which involves the assault of a child and his forcible removal from a bus, regardless of the circumstances. I am concerned that reinstatement will send a message to the workplace that this conduct is excusable when I consider that there should be no tolerance whatsoever.” 29

[39] The issue of refusing children passage on buses or ejecting them was particularly topical and sensitive to the Brisbane public since the Daniel Morcombe incident and made protecting children on public transport of paramount importance.

[40] In 2003, 13 year old Daniel Morcombe disappeared while waiting for a bus North of Brisbane. It is alleged the bus driver continued his route without picking up the child, as the bus was delayed. Since that time, there has been significant media coverage, and the disappearance of Daniel Morcombe is an enduring Brisbane news item. It is emphasised that the Applicant has no connection with this event, however, the Respondent witnesses raised the event in their evidence as forming a relevant context to the assessment of the current incident.

[41] Mr Cullen, Depot Supervisor at the Toowong Bus Depot, provided evidence. He had been employed in that position for nine years. Mr Cullen was relatively softly spoken and gave his evidence in an open and thoughtful manner. He stated that:

“Physically touching a passenger goes against a number of policies including Translink and council policy. It constitutes assault and should not occur. The second thing he did wrong was to put the child off the bus and refuse carriage of the child.

This again is against a number of policies. Since the incident with Daniel Morcormbe [sic] all bus drivers have been made constantly aware of the dangers of leaving a child beside the road. I have personally spoken to drivers about this issue and a number of internal notices have been sent out to drivers again highlighting this issue. Annexed to this my Affidavit and marked “A” are copies of notices which were placed in each bus operators locker informing them of Council’s policies with respect to the carriage of school children. Drivers are made aware that children are not to be left behind even if they don’t have the money for the fare.

The bus driver’s handbook reinforces the obligations placed on drivers in relation to children. [the Applicant] had been provided with a Driver’s handbook. On page 23 of the handbook it clearly states in bold and underlined letters that “YOU MUST NOT REFUSE TO CARRY CHILDREN”.” 30

[42] Mr Cullen stated that:

“I don’t believe any professional bus driver would, well, we all have bad days but being a professional bus operator, as in any other profession, you need to be able to put the bad day aside and still virtually do the job you’re employed to do and do it to the best of your ability, but I didn’t have any prior knowledge or any knowledge that [the Applicant] was having a bad day as such, and the first contact I had with him on that day personally was when he actually contacted me after the event.” 31

Process for terminating the Applicant

[43] The Applicant gave evidence that he initiated contact with Mr Cullen prior to the issue of the Show Cause notice 32 by notifying him as soon as the incident occurred. Mr Cullen instructed the Applicant to return to the Depot immediately.

[44] Mr Cullen then told the Applicant that he was stood down, due to the seriousness of the incident, and that there would have to be a meeting with the Depot Manager, which he stated that the Applicant’s Union could attend. He then arranged for the Applicant to speak with a counsellor, as in Mr Cullen’s view, the Applicant appeared distressed.

[45] The Depot Manager, Mr Ingham then became involved on the day following the incident. They requested the Applicant prepare a memorandum of the incident.

[46] Mr Warren, the Divisional Manager, Brisbane Transport, provided evidence. He had held this position from 2005 and prior to that was the Chief Finance Manager. He confirmed he had made the final decision to terminate the Applicant’s employment after liaising with colleagues. He signed the termination letter.

[47] Mr Warren stated that he based his decision on the information before him, and that the behaviour “fell below the acceptable standard of community expectations about the conduct of the Respondent’s bus operators”. 33 He went on to state:

“The Applicant disregarded the Respondent’s policies with respect to school children. He committed an assault by forcibly removing a child from the bus. Leaving a child alone beside the road instead of delivering him to his designated bus stop is an anathema when the disappearance of a child of a similar age at a bus stop is still fresh in the public memory.

The Applicant does not have a good work history with many instances of aggressive behaviour over a period of 12 years. I no longer trust him to responsibly transport members of the public, including children, who rely on the public transport system to travel about Brisbane. I would be remiss in my duty as Divisional Manager of the Respondent to allow his employment to continue.” 34

[48] Mr Warren agreed as per his note at the front of the Handbook, that he commended the document to drivers as the ultimate guide, and the School Children Code of Conduct is a subsidiary or complementary document.

[49] Mr Warren was clear that in dismissing the Applicant, that his concern was for the running of Brisbane Transport in a safe manner, and whilst he was very loyal to his staff, his loyalty to Brisbane Transport and the safety of its customers was superior to any loyalty to the Applicant. 35 Mr Warren said that he assessed the possibility of alternative disciplinary action, but considered that as the incident involved putting a child off a bus, he didn’t think anything overrode that.36 It was his opinion that the incident was of such magnitude, that it made it different to other incidents of misconduct. He stated, ‘to be frank, people - bus operators who manhandle a child off a bus are not welcome in my organisation’.37

Previous incidents

[50] The Respondent considered that the Applicant’s behaviour was consistent with a course of unacceptable conduct, as previously exhibited by him. The Respondent referred to an incident in November 2009 where the Applicant refused to move a bus after being requested to do so. After the incident Mr Cullen informed him his abusive behaviour was unacceptable and told him if it happened again he would receive a final warning. 38

[51] Mr Ingham also provided evidence that he became involved after receiving a report that the Applicant had parked a motorist in a car park with his bus. Mr Cullen had referred the matter to Mr Ingham who conveyed to the Applicant that he should return to the Depot immediately. The Applicant was apparently disgruntled but complied with the direction. Mr Ingham stated to the Applicant that the appropriate procedure was to take the offending car’s registration number and then report such to the Depot. The Applicant was reprimanded on the basis that he had no authority to deprive anyone of their liberty.

[52] The Respondent confirmed that they did not rely on the prior incidents for the termination of employment but that they formed a profile of incidents in his employment period.

[53] The Applicant stated that he regretted the incident of 3 December 2009 but didn’t consider that there was a correlation between this and the prior incidents. His view was that he had never received a final warning for his past behaviour, and that he was not told that further incidents would result in the termination of his employment.  39

[54] Mr Ingham agreed in his evidence that he did not have firsthand knowledge of the incidents the Applicant had been involved in prior to his commencement at the Depot, but that his knowledge of this conduct had been derived from the Applicant’s personnel file.

Mitigating circumstances

[55] The Applicant gave evidence that he sought advice from a professional counsellor to who he was referred by his General Practitioner who had diagnosed him with depression, which was likely to have been a long standing condition. The Applicant gave evidence that the counsellor’s opinion was that this depression impacted upon his actions during the incident. The Applicant also stated that he had ‘put in place procedures and strategies to help me deal with stressful situations in the future...I have had no recurrences of this kind’. 40

[56] In his Affidavit, the Applicant also referred to his 12 years of service as a Bus Operator with the Respondent. He also said that during this period of employment, he had never been issued with a written warning by the Respondent. In fact, exhibited to his Affidavit was a letter of commendation from a parent of a schoolchild thanking him for helping his daughter when she missed the bus. This was accompanied by a Memorandum from the Respondent’s then Regional Manager thanking him.

[57] The Applicant also submitted that he had been at all times honest, cooperative, and contrite in his dealings with the Respondent, and the mother of the student, in respect of the incident.

Consideration

[58] The following provides a consideration of the legislative provisions of s.387 of the Act in determining whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[59] The Applicant submitted that the evidence does not support the Respondent’s conclusion that the Applicant physically removed the student by “pulling his arm and pushing him out of the bus”. 41

[60] It was submitted on behalf of the Applicant that at the time the Respondent had terminated the Applicant’s employment they had:

a. Not obtained statements from any other person present on the bus;

b. Not obtained a statement from the mother of the student that was ejected from the bus; and

c. Merely spoken with the Deputy Principal from the high school who reported the matter to the Respondent.

[61] It was initially submitted that the Applicant’s conduct does not support a valid reason for the dismissal as the Applicant had no alternative but to eject the student in question. The Applicant submitted he had ensured the safety and security of the Respondent’s position, other passengers and property and defused a physically threatening situation. In the final submissions, the Applicant conceded that with the benefit of hindsight, other options were available to him. 42

[62] It was submitted that the factual conclusions reached by the Respondent that the Applicant had engaged in ‘pulling his arm and pushing him out the bus door’ in relation to the student disregarded the statement of the Applicant at the time of the incident. The Applicant’s submission was that the Respondent made a decision on incorrect information.

[63] The Applicant submitted that he did not breach the policies. He submitted that the Handbook and the Code do not explicitly prohibit removing a child from the bus, and that the Handbook specifically allows a bus driver to refuse to carry a passenger. On this basis, the Applicant submitted that he had not breached the policies.

[64] The Applicant also sought to rely on a Solicitor’s Memorandum of Advice of 31 October 2005 in relation to the interpretation of s.12 of the Transport Operators (Passenger Transport) Standard 2000 (Qld) (the Standard) in relation to the consumption of food and beverages on Brisbane Transport buses, which concluded that it is possible for a Bus Operator to exercise discretion to request a passenger not to enter or leave a bus where the driver reasonably believes a passenger or potential passenger is creating or causing or likely to cause a disturbance, nuisance or danger to anyone. The consideration of this document was objected to by the Respondent as it was provided by the Applicant only in final submissions, and therefore had not been appropriately presented to the witnesses. However, the Applicant’s representative stated it had raised the Standard in its initial submissions, and stated that the Standard does not differentiate between adult and juvenile passengers. Thus it was argued that the Applicant had the same discretion in respect of adolescent passengers. Whilst the document was presented as a legal opinion, the advice raises operational questions that should properly have been asked of the Respondent’s witnesses. 43

[65] It was submitted that the Respondent’s decision to terminate the Applicant’s employment was based on a misinterpretation of what is considered misconduct, and that they had relied on their perception that the Applicant had assaulted the juvenile passenger. The Applicant argued that the Respondent relied on the definition of assault in s.245 of the Criminal Code Act 1899 (Qld) (“the Criminal Code”), and the common law definition of battery to support their position. However the Respondent’s decision to terminate relied on the serious breach of policy and Code of Conduct that is, ejecting the child as the reason for termination, as set out in the letter of termination.

[66] The Applicant further relied on the decision of Shafibeigli v Jones Lang Lasalle (NSW) Pty Limited 44which held that, despite the employee’s breach of the employer’s policies, there was no valid reason for termination because the employee acted in good faith and followed what he thought was policy. This matter can be distinguished from the circumstances of that decision as, in contrast in the current matter, it was not shown that the Applicant thought that it was acceptable in accordance with policy to make physical contact with a child and remove them from the bus. Indeed, the Applicant gave evidence that he regretted this course of action immediately, and therefore acknowledged the conduct was inappropriate.

[67] The parties’ submissions differ as to the nature of the actual act of removing the child. However, the evidence supports the act of ejecting the child from the bus occurred by some means of physical contact and that it was a breach of policy. Accordingly, it must be decided if this conduct was sufficiently serious to justify termination. The question for consideration is whether this breach of policy forms a valid reason for the resulting termination of employment.

[68] The authorities provide a range of views on the approach that should be adopted with respect to a breach of policy. Whilst they are relevant to these proceedings, they turn on the specific factual circumstances of each case. The authorities presented by each party have been carefully considered in reaching a determination in this matter.

[69] This issue of a breach of policy was considered in Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd 45 by Deegan C who determined that:

“Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination.”  46

[70] Further, in the matter of Woolworths Limited (t/as Safeway) v Cameron Brown, 47 a Full Bench of the Australian Industrial Relations Commission, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,48considered when a failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:

“In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” A failure to comply with a direction to do or refrain from doing something in compliance with a employer’s policy will not provide a valid reason for termination of employment where:

(a) the policy, or a direction to comply with the policy, is illegal;

(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(c) the policy, or a direction to comply with the policy, is unreasonable.” 49

[71] Further, in Bostik (Australia) Pty Ltd v Gorgevski (No 1) 50 Sheppard and Heerey JJ observed:

“Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in particular circumstances of an individual case, be harsh, unjust and unreasonable.” 51

[72] I have considered the finding of the Full Bench of the AIRC in Jupiters and also in Bostik that there was a valid reason for the termination of the employee but that the termination was nevertheless harsh. In Jupiters, the employee was ignorant of the prohibition contained in the policy of the employer. 52 However, this is not the case in the current matter, as the conduct of the Applicant was plainly prohibited by the policies and Codes. Whilst there was an endeavour to complicate the matter with a comparison of some semantic differences between the policy documents, the required conduct was common sense and the Applicant was aware of this.

[73] The policies and Codes contained reasonable and basic operational requirements that had renewed importance given recent public events with the carriage of children on public transport. Not only was the policy reasonable, but there were also numerous reminders provided to the Applicant in relation to the required conduct, particularly the flyers that were provided just before the incident itself.

[74] In the current matter, I have also considered whether there was a valid reason for the dismissal but that the dismissal was harsh. The circumstances of the juvenile’s conduct on the bus has been taken into account as has the significant length of service of the Applicant and the evidence of his depressed state. The breach of policy was serious and his actions were volatile and this prevented the Respondent’s ability to return the Applicant to his driving duties.

Whether the person was notified of that reason;

[75] The Applicant was stood down on pay and notified of the reason for this. The Applicant was then asked to provide a Show Cause response regarding the incident. Further to this he was provided a letter of termination which outlined the reason for his dismissal.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[76] The Applicant submitted that the Show Cause letter was initially issued erroneously and the Applicant did not receive it until five days after it was issued. The Applicant stated that he had then rushed the response in an attempt to comply with the nominated deadline. The Applicant provided a response without the assistance of the Union. He thought he would be subject to further difficulties if he did not provide a response by the designated time. The Respondent submitted that the Applicant should have sought an extension of the deadline.

[77] The delay in issuing the Show Cause letter was not enough to render this whole process unfair. The Applicant was still provided with an opportunity to respond, which he did; and essentially used the opportunity to apologise for the wrongdoing, assert a medical reason for his behaviour and promise not to do it again. In the circumstances of the policy and the required conduct, the Respondent was not satisfied with the response.

[78] The Respondent, upon realising the delay, could have offered an extension for the Applicant to provide a response. Although the Applicant was suspended with pay, the Respondent is not a small business and it would not have caused any undue financial penalty to offer an additional week to respond. However the Applicant did not seek such or to place any further reasoning before the Respondent to explain the incident and the evidence and material provided at the hearing by the Applicant did not demonstrate that the restriction in responding had compromised the Applicant’s Show Cause response. No markedly different or additional material was advanced. This restriction on the Applicant did not represent a fatal procedural flaw.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

[79] The Applicant was provided with an opportunity by Mr Cullen to see a Counsellor on 3 December 2009, after the incident.

[80] The Applicant confirmed that he was informed that he was entitled to have a Union representative attend the meeting of 4 December 2009, which he declined. 53

[81] It was open to the Applicant to engage the Union to assist in drafting the Show Cause response; although he stated that he had tried to contact the Union for assistance without success. 54 This cannot be said to be an unreasonable refusal by the Respondent to allow the Applicant to have a support person.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;

[82] The Respondent did not provide official written warnings to the Applicant about previous incidents of unacceptable conduct. The Respondent had not referred to any previous incidents in making its decision to terminate the Applicant’s employment. However, it is reasonable given the occupation of the Applicant, to consider the events that the Applicant had previously engaged in, in considering whether the trust and confidence in the employment relationship could have been maintained after the final incident. Whilst the Applicant’s evidence in relation to the prior events is recognised, the Respondent’s clear view was that the relationship was now irretrievable. It cannot be confidently concluded that the Applicant would consistently discharge his duties whilst in constant contact with the public.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

[83] It is recognised that the Respondent is a large employer, with a dedicated human resource management team, and the process afforded to the Applicant has been examined accordingly.

Any other matters that FWA considers relevant

[84] The Applicant submitted that there were mitigating circumstances that should be considered, including that at the time of the incident he was suffering from depression and it was this condition that led to his unsatisfactory response to the events that unfolded. In addition, he submitted that he had an unblemished record and provided evidence of letters of commendation in his work. 55 Furthermore, his length of employment - some 12 years - was emphasised; and that he had immediately acknowledged the incident and was remorseful.

[85] In this respect, the Applicant relied on the decision of Hampton C in Peter Kidd v TransAdelaide 56to support his argument for reinstatement. In that matter, a tram conductor was dismissed following an altercation with a passenger (after the passenger deliberately prevented tram doors from closing) which amounted to misconduct. Despite this, reinstatement was ordered as there were mitigating circumstances such as the applicant’s long period of service; that the conduct was not as serious as the Respondent made out and that the Respondent did not follow its own disciplinary processes.

[86] This matter can be distinguished from that decision. The conduct of the Applicant in ejecting a student passenger is extremely serious and has potentially grave ramifications. The Respondent in this matter also followed a predominantly procedurally fair process.

[87] It is acknowledged that the Applicant’s actions may have been a snap judgment in a difficult circumstance and even though no damage or injury was caused on this occasion, the behaviour had broken the Respondent’s trust and confidence in the Applicant’s ability to appropriately fulfil his duties. Although contrite, the Applicant acknowledged that his behaviour was inexcusable. During cross-examination by Mr Murdoch, the Applicant stated:

“Nor did you approach the child and seek to obtain his details so that you could report him to the school that he attended?---Look, it goes without question that I wish I had have done differently.

It therefore follows doesn’t it that you accept that you did the wrong thing on 3 December?---I did.

You acted in breach of the policy, didn’t you?---I haven’t hidden from that.

Because you did refuse to carry a child, didn’t you?---I did.

In fact you say in your statement, and by your statement I’m saying your memorandum of 4 December 2009 that it was an action that you immediately regretted?---Absolutely.

By immediately regretted can the Commission infer that you regretted pushing him off the bus the moment you pushed him off the bus?---Yes.

Well, if you did immediately regret it, why didn’t you ask him to come back on the bus?

---Look, I mean who knows. When these things happen, you know, the stress of the moment, you know. He picked his bag up and left and I’ve still got responsibility for all these other kids that are on the bus. I’m upset, they’re upset, you know, and I’ve got to do the best for, you know, the most people that are left.

Well, you also had responsibility for the child who you pushed off the bus, didn’t you?---Yes.

Notwithstanding that you say you immediately regretted pushing him off the bus, you didn’t stop the bus and seek to have him get back on, did you?---No. 57

[88] The Respondent also submitted that the duty of care imposed upon it in relation to safely transporting passengers, particularly the many thousands of school students per day, was relevant in that the Respondent and parents were entitled to expect their children to arrive safely at their destinations.

Conclusion

[89] In considering all of the evidence and submissions, it is concluded that the Applicant did make physical contact with the juvenile passenger, and removed him from the bus. It is not necessary to make a finding as to whether the Applicant ‘assaulted’ the passenger. The act of evicting the child is a breach of the policies, irrespective of the manner in which it was achieved; and the Applicant’s knowledge of such provided a valid reason for the termination.

[90] The Code of Conduct clearly does not allow handling a passenger in this context. Whether the Applicant ‘gently guided’ or ‘pushed’ or ‘pulled’ or ‘dragged’ the child from the bus, it was inappropriate to eject the child and clearly breached the Code of Conduct. The defence put forward by the Applicant of provocation does not justify the fundamental breach of conduct which was to eject or refuse to carry the student. Alternative courses of action were open to him to call the Depot for guidance, even if he was not confident whether assistance would arrive in a timely manner.

[91] Further, in relation to the removal of the child, it is a semantic discussion to argue that the act of ‘removal’ is acceptable as it is different to a ‘refusal’ to carry a child. Removing a passenger is implicitly refusing their travel. Accordingly, it is clear that even if the Applicant had ejected the child from the bus without contempt, it is viewed that this would still have amounted to a breach of the Handbook and School Travel Code of Conduct. The breach is serious and could have resulted in more serious consequences.

[92] For the previously stated reasons there was a valid reason for the dismissal of the Applicant based on the breach of the policy documents. The Applicant’s conduct breached what can be termed a fundamental obligation to carry children from destination to destination.

[93] I have carefully considered the issues between the parties in this matter as this termination is a very unfortunate way to end a lengthy career. It is recognised that the duties associated with driving a bus in difficult traffic and constantly dealing with members of the public, particularly school children, provides daily challenges. I have also taken into account that even though there have been other incidents referred to, the dismissal is based on this event. I have also taken into account that the Applicant stated this incident brought about a ‘snap’ response.

[94] However, the dismissal was not harsh, unjust or unreasonable and any of the remedies are not appropriate in the circumstances. In particular, reinstatement of the employment relationship could not be confidently ordered. The Respondent in the termination letter provided the Applicant with four weeks’ payment in lieu of notice. At the time of dismissal, the Applicant was entitled to an additional week’s pay (being over the age of 45 and having served more than the required two years with the Respondent for the additional week). Whilst it is not within the jurisdiction to order wages in lieu of notice, it is noted that if this payment has not been rectified, the Respondent should recognise that the Applicant has a statutory entitlement to this additional week.

[95] For the aforementioned reasons, the application pursuant to s.394 is dismissed. I Order accordingly.

COMMISSIONER

Appearances:

Mr Luke Tiley, Rail, Tram and Bus Union, for the Applicant

Mr Chris Murdoch, of Counsel, for the Respondent

 1   The name of the Applicant has been suppressed at my own initiative.

 2   AG846404.

 3   The name of the child is suppressed as he is a minor. The name of the child’s mother and school are also suppressed.

 4   The complaint was further supported by the Deputy Principal reporting the child’s statement to the Call Centre on 4 December 2009, as extracted in his mother’s evidence, as set out further.

 5   Attachment 8, of Exhibit 1, Affidavit of Applicant.

 6   Extracted from Exhibit 4, Brisbane Transport Bus Operator Handbook 2008.

 7   PN365, Transcript of Proceedings.

 8   Exhibit 1, Affidavit of Applicant.

 9   PN410, 412, 743-745, 749, Transcript of Proceedings.

 10   PN453, 457; 457, 461-2, 487, Transcript of Proceedings.

 11   Final Written Submissions of the Applicant.

 12   Exhibit 5, Affidavit of Mother of the child.

 13   Exhibit 10, Record of complaint received.

 14   Exhibit 5, Affidavit of Mother of the child.

 15   Final Written Submissions of the Applicant.

 16   Exhibit 1, Affidavit of Applicant.

 17   Exhibit 3, Bus Operator Handbook and Code of Conduct Confirmation Form.

 18   PN174 Transcript of Proceedings.

 19   PN188-189, Transcript of Proceedings.

 20   PN270-278, Transcript of Proceedings.

 21   Attachment A to Exhibit 6, Affidavit of Mr Douglas Cullen.

 22   PN308-309, Transcript of Proceedings.

 23   PN672, Transcript of Proceedings.

 24   PN673, Transcript of Proceedings.

 25   PN1263, Transcript of Proceedings.

 26   PN1318, Transcript of Proceedings.

 27   PN1501, Transcript of Proceedings.

 28   PN1505, Transcript of Proceedings.

 29   Exhibit 7, Affidavit of Mr Benjamin Ingham.

 30   Exhibit 6, Affidavit of Mr Douglas Cullen.

 31   PN1502, Transcript of Proceedings.

 32   PN555, Transcript of Proceedings.

 33   Exhibit 13, Statement of Mr Alan Warren.

 34   Exhibit 13, Statement of Mr Alan Warren.

 35   PN1762, Transcript of Proceedings.

 36   PN1765, Transcript of Proceedings.

 37   PN1773, Transcript of Proceedings.

 38   PN584-585, Transcript of Proceedings.

 39   PN796-7, Transcript of Proceedings.

 40   Exhibit 1, Affidavit of Applicant.

 41   Attachment 8, Exhibit 1, Affidavit of Applicant.

 42   PN453, 457, Transcript of Proceedings.

 43   Rule in Browne v Dunn (1893) 6 R 67 (HL).

 44   [2009] AIRC 908.

 45   [2009] AIRC 893 (16 October 2009).

 46 Ibid at [54].

 47   PR963023 (26 September 2005).

 48   PR928970 (19 March 2003), at [14].

 49   PR963023 (26 September 2005) at [34].

 50 (1992) 36 FCR 20.

 51 (1992) 36 FCR 20 at [39].

 52   PR928970 (19 March 2003).

 53   PN343-345, Transcript of Proceedings.

 54   PN563, Transcript of Proceedings.

 55   Attachment 2 and 3, Exhibit 1, Affidavit of Applicant.

 56   [2010] FWA 2580.

 57   PN457-465, Transcript of Proceedings.

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