Con Perry v ComfortDelGro Cabcharge Pty Ltd T/A Hillsbus Co Pty Ltd
[2016] FWC 1901
•20 MAY 2016
| [2016] FWC 1901 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Con Perry
v
ComfortDelGro Cabcharge Pty Ltd T/A Hillsbus Co Pty Ltd
(U2015/15130)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 20 MAY 2016 |
Application for relief from unfair dismissal.
[1] This decision arises from an application by Mr Con Perry for an unfair dismissal remedy pursuant to section 394(1) of the Fair Work Act 2009 (the Act).
[2] Mr Perry represented himself in these proceedings with the assistance of a friend and past colleague, Mr David Rowe. Mr Marshall, solicitor, from FCB Law, with Mr Brett, solicitor, represented ComfortDelGro Cabcharge Pty Ltd T/A Hillsbus Co Pty Ltd (Hillsbus).
[3] Mr Perry seeks reinstatement to his prior position with restitution of continuity of his employment and consequent entitlements.
[4] I am satisfied that Mr Perry’s application was made within the time prescribed by the Act and that Mr Perry is a person protected from unfair dismissal. The Small Business Fair Dismissal Code is not relevant to this application nor is any consideration of genuine redundancy.
[5] Mr Perry commenced work with Hillsbus as a bus driver on 3 September 2012. Mr Perry’s employment was terminated on 5 November 2015 for driving a vehicle whilst using a mobile phone.
[6] Regulation 300 of the Road Rules 2014 (extracted from New South Wales Consolidated Regulations) is set out below:
“ROAD RULES 2014 - REG 300
300 Use of mobile phones by drivers (except holders of learner or provisional P1 licences)
(1) The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless:
(a) the phone is being used to make or receive a phone call (other than a text message, video message, email or similar communication) or to perform an audio playing function and the body of the phone:
(i) is secured in a mounting affixed to the vehicle while being so used, or
(ii) is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press anything on the body of the phone or to otherwise manipulate any part of the body of the phone, or
(b) the phone is functioning as a visual display unit that is being used as a driver’s aid and the phone is secured in a mounting affixed to the vehicle, or
(c) the vehicle is an emergency vehicle or a police vehicle, or
(d) the driver is exempt from this rule under another law of this jurisdiction.
Maximum penalty: 20 penalty units.
Examples of driver’s aids:
1 Closed-circuit television security cameras.
2 Dispatch systems.
3 Navigational or intelligent highway and vehicle system equipment.
4 Rearview screens.
5 Ticket-issuing machines.
6 Vehicle monitoring devices.
Note 1 :
“Emergency vehicle” ,
“park” and
“police vehicle” are defined in the Dictionary.
Note 2 : Subrule (1) is not uniform with the corresponding subrule in rule 300 of the Australian Road Rules . Different rules may apply in other Australian jurisdictions.
(2) For the purposes of this rule, a mobile phone is secured in a mounting affixed to the vehicle only if:
(a) the mounting is commercially designed and manufactured for that purpose, and
(b) the mobile phone is secured in the mounting, and the mounting is affixed to the vehicle, in the manner intended by the manufacturer.
(3) For the purposes of this rule, a driver does not use a phone to receive a text message, video message, email or similar communication if:
(a) the communication is received automatically by the phone, and
(b) on and after receipt, the communication itself (rather than any indication that the communication has been received) does not become automatically visible on the screen of the phone.
(3-1) This rule does not apply to the driver of a vehicle who is the holder of a learner licence or a provisional P1 licence.
Note 1 :
“Provisional P1 licence” is defined in the Dictionary and
“learner licence” is defined in the Act.
Note 2 : Rule 300-1 provides for the use of mobile phones by drivers who are holders of learner licences or provisional P1 licences.
Note 3 : This subrule is an additional NSW subrule. There is no corresponding subrule in rule 300 of the Australian Road Rules .
(4) In this rule:
“affixed to” , in relation to a vehicle, includes forming part of the vehicle.
“body” , in relation to a mobile phone, means the part of the phone that contains the majority of the phone’s mechanisms.
“held” includes held by, or resting on, any part of the driver’s body, but does not include held in a pocket of the driver’s clothing or in a pouch worn by the driver.
“mobile phone” does not include a CB radio or any other two-way radio.
“use” , in relation to a mobile phone, includes any of the following actions by a driver:
(a) holding the body of the phone in her or his hand (whether or not engaged in a phone call), except while in the process of giving the body of the phone to a passenger in the vehicle,
(b) entering or placing, other than by the use of voice, anything into the phone, or sending or looking at anything that is in the phone,
(c) turning the phone on or off,
(d) operating any other function of the phone.”
[7] The New South Wales Centre for Road Safety provides a question-and-answer information function which is available for the education of drivers. As part of that function the following question and answer is set out:
“1. Can I hold and use my phone when waiting at traffic lights, or stuck in traffic?
No. It is illegal to hold and use your phone at any time while driving or riding. If you want to hold and use your phone your vehicle must be parked out of the line of traffic.
2. Can I use my mobile phone for calls if it is on loudspeaker and in my lap?
No. It is illegal to have your mobile phone touching any part of your body, other than to pass it to a passenger.
3. Can I have my mobile phone in my pocket if I’m using Bluetooth to make or receive a call?
Yes, if you have a full unrestricted licence or a provisional P2 licence (green Ps). You can use a mobile phone for calls if it does not require you to touch the phone in any way (e.g. via Bluetooth). The rules allow your mobile phone to be in a pocket of your clothing.
No, if you have a learner or provisional P1 licence (red Ps), you are not permitted to use a mobile phone at all while driving.
4. Can I listen to music on my phone if it is in a cradle?
Yes, if you have a full unrestricted licence or a provisional P2 licence (green Ps). You can use the audio playing function of a mobile phone as long as the phone is secured in a mounting fixed to the vehicle and doesn’t obscure your view of the road, or the phone can be operated without you touching any part of it, such as via Bluetooth.
No, if you have a learner or provisional P1 licence (red Ps), you are not permitted to use a mobile phone at all while driving.
5. Can I dial a number if my mobile phone is in a cradle?
Yes, if you have a full unrestricted licence or a provisional P2 licence (green Ps). You can use a mobile phone for calls if it is secured in a mounting fixed to the vehicle. Using a mobile phone legally can still be distracting. Consider if the call is urgent and the demands of the traffic before using your mobile.
No, if you have a learner or provisional P1 licence (red Ps), you are not permitted to use a mobile phone at all while driving.
6. Can I use the GPS function on my mobile phone?
Yes, if you have a full unrestricted licence or a provisional P2 licence (green Ps). You can use a mobile phone as a driver’s aid, such as GPS, as long as it is secured in a mounting fixed to the vehicle and doesn’t obscure your view of the road. You cannot hold your phone to use the GPS function.
No, if you have a learner or provisional P1 licence (red Ps), you are not permitted to use a mobile phone at all while driving.
7. Can I use a GPS device that is not a phone if I am a learner of provisional P1 licence holder?
Yes. A GPS device that is not a mobile phone is permitted for all drivers, as long as the device is secured in a mounting fixed to the vehicle and does not obscure the driver’s view of the road. The device must not be placed in a location that will increase the likelihood of injury in a crash.
8. Can I send a text message if my mobile phone is secured in a cradle?
No. You cannot text at all while driving, whether or not your phone is secured in a mounting fixed to the vehicle.
9. What kind of cradle can I use for my mobile phone?
Your mobile phone must be in a mounting that is commercially designed and manufactured for that purpose.
10. Where can I attach a cradle to my vehicle?
The mounting must be fixed to the vehicle in the manner intended by the manufacturer. It must not obscure your view of the road (in front and to the sides), and must not be placed in a location that will increase the likelihood of injury to you or a passenger in a crash.”
Background
[8] On 21 October 2015 a passenger complained that Mr Perry was driving a company vehicle whilst using a mobile phone on 19 October 2015. The substance of the complaint is set out below:
“Dear Sir/Madam
I am writing to you to inform you of inappropriate behaviour of a bus driver on Monday evening.
I was on bus M61 bus number 9879 from Wynyard to Baulkham Hills on Monday 19 October 2015. I noticed that the driver appeared to be looking at his phone while driving along the M2 (while the bus was moving not stopped in traffic). I noticed him touch the phone 2 times. While he did not pick up the phone he did appear to tilt the phone towards him from the windowsill to see the screen. He also picked up a laminated information page to look at while driving.
While unprofessional, I have no objection to the drivers quickly looking at their phones or other items while stopped at a bus stop. However, I feel it is highly inappropriate for a driver to look at anything other than the road and passengers while driving.
Thank you in advance for your feedback.” 1
[9] Mr Perry continued to drive a company vehicle without interruption or modification to his duties until he received a Suspension Notice dated 4 November 2015. The substance of the notice is set out below:
“Con,
RE: SUSPENSION PENDING FURTHER INVESTIGATION
This letter is as a result of your performance falling short of the standards expected by
ComfortDelGro Cabcharge.
A complaint has been made against you about use of a mobile phone whilst driving a company vehicle on 19th October 2015.
At this point the following actions will be taken:-
• You have been suspended with pay as of 09:03 hrs on the Wednesday 4th November 2015 until further notice.
• On Thursday the 5th November 2015 at 09.30 am you are required to attend a meeting to show due cause as to why CDC should continue your employment.
Any response you wish to make to this written warning will be attached to a copy of this letter for inclusion in your personal file.” 2
[10] Hillsbus’ relevant policy at commencement of Mr Perry’s employment was issued on 2 October 2012 3. This is set out below:
“3.8.9 Mobile Phones
ComfortDelgro Cabcharge (CDC) recognises that mobile phones are a widely used and valuable tool for communication. CDC also recognises that many of our employees carry their private mobile phones with them while at work.
It is illegal in Australia to drive any motor vehicle while using a hand held mobile phone. Further, the use of hands free devices such as Bluetooth headsets is considered an offence if it causes a driver to loose proper control of a vehicle.
In the interest of abiding with the law and upholding public safety, under no circumstances are employees who are in control of a bus or maintaining buses permitted to use a mobile phone or similar devices (including the use of a Bluetooth earpiece, etc) for any function or purpose whilst they are operating or working on a CDC Bus.
During break times or in the event of an emergency, a mobile phone can be used only after the vehicle has been safely parked and secured with the handbrake applied.
Any breach of this policy will be considered a serious safety breach which will result in summary dismissal.”
[11] Mr Perry was issued with a Drivers Guide at induction on commenced employment. The Drivers Guide also refers to the use of mobile phones. It specifically refers to the prohibition on the use of mobile phonesfor the making or receiving of calls or for the sending or reading of text messages on any mobile whilst in charge of a moving vehicle. There is no reference to any music broadcasting function. The relevant section of the Drivers Guide is extracted below:
“3.6.29 Mobile Phones
ComfortDelGro Cabcharge recognise that Mobile Phones have become a widely used and extremely valuable tool for communicating in today’s environment. The Company also recognise that many of their drivers carry their private mobile phones with them so that they can be contacted directly or via a messaging facility.
Employees are reminded that it is illegal in Australia to drive any motor vehicle while using a hand held phone.
Drivers are to be aware of the safety risks and provisions of the law concerning the use of a mobile phone while driving vehicles. Under no circumstances must drivers of buses or coaches make or receive calls or send or read text messages on any mobile whilst in charge of a moving vehicle.
The Company recommends that to avoid breaking the law and compromise safety, all mobile phones should be turned off and any voicemail facility (if available) activated, to receive and collect messages whilst the bus is being driven.” 4
(my emphasis)
[12] Hillsbus’ relevant policy at the date of termination of Mr Perry’s employment is set out below. This later policy is broader than the policy in place at the commencement of Mr Perry’s employment. Although it does not make any specific reference to a music broadcasting function there are references to bluetooth and headsets. It does however make reference tonot using mobile phones “for any function or purpose”. I have highlighted the additions to the policy:
“3.8.9 Mobile Phones
ComfortDelgro Cabcharge (CDC) recognises that mobile phones are a widely used and valuable tool for communication. CDC also recognises that many of our employees carry their private mobile phones with them while at work.
It is illegal in Australia to drive any motor vehicle while using a hand held mobile phone. Further, the use of hands free devices such as Bluetooth headsets is considered an offence if it causes a driver to loose proper control of a vehicle.
In the interest of abiding with the law and upholding public safety, under no circumstances are employees who are in control of a bus or maintaining buses permitted to use a mobile phone or similar devices (including the use or wearing of a Bluetooth earpiece, etc) for any function or purpose whilst they are operating or working on a CDC Bus.
During break times or in the event of an emergency, a mobile phone can be used only after the vehicle has been safely parked and secured with the handbrake applied.
Any breach of this policy will be considered a serious safety breach which will result in summary dismissal.
The company recommends that to avoid breaking the law and compromise safety:
• all mobile phones should be turned off whilst driving.
• all Bluetooth & handsfree devices should be turned off whilst the bus is being driven.
• any voicemail facility (if available) activated, to receive and collect messages whilst the bus is being driven.” 5
[13] Employees are provided with a Drivers Guide specifying the relevant policies of the respondent in force at the commencement of their employment. Employees are not provided with an up-to-date Drivers Guide when policies change. No employee who commenced employment prior to the commencement of the relevant policy in force at the date of Mr Perry’s employment was directly provided with an amended Drivers Guide or policy.
[14] The substance of the letter of termination of employment from Mr Booth, Service Delivery Manager, Dural Depot, is extracted below:
[15] “Con
RE: TERMINATION WITH NOTICE
This letter constitutes termination of your employment with notice as your performance has fallen short of the standards expected by ComfortDelGro Cabcharge. It follows a customer complaint reporting the use of a mobile phone whilst driving a company vehicle with a load of passengers.
ComfortDelgro Cabcharge company policy clearly states that in regard to any use of a mobile phone, or other electronic device, whilst driving a company vehicle will result in dismissal of employment.
As such, your employment with ComfortDelGro Cabcharge has been terminated effective of 5th November 2015, with the following notice:-
- 3 weeks pay in lieu of notice.
Any response you wish to make with relation to termination of your employment should be made in writing to the Regional Operations Manager within 7 days of the date of this letter,” 6
[16] Mr Perry availed himself of the internal appeal procedure. His appeal was heard, but rejected, by Mr Hurley, Regional Operations Manager.
[17] The respondent submitted that:
• Hillsbus had implemented a mobile phone policy which strictly prohibited any use of a mobile phone whilst an employee was operating or working on a bus; 7
• Whilst driving a bus on 19 October 2015, the applicant operated a hand-held mobile phone on two occasions. 8 After reviewing the CCTV footage, Service Delivery Manager John Booth confirmed the applicant was using his phone whilst operating the bus;9
• At no time prior to Mr Perry’s dismissal on 5 November 2015 did Mr Perry state that he was using the mobile phone on 19 October 2015 for the purposes of playing music; 10
• Using a mobile phone whilst operating a bus is a serious safety risk; 11
• Using a mobile phone whilst operating a bus causes serious reputational damage to Hillsbus; 12
• Mr Perry’s use of a mobile phone on 19 October 2015 contravened Regulation 300 of the Road Rules; 13 and
• At all times Mr Perry was aware of Hillsbus’ policy on mobile phone use and admitted during a meeting on 11 November 2015 to breaching that policy. 14
[18] Having considered the evidence and submissions of the parties, I have resolved various factual issues relevant to the criteria I am required to consider pursuant to s.387 of the Act.
[19] I have accepted the veracity of Mr Perry’s evidence concerning the arrangements he made involving his new and old mobile phones to enable him to listen to music whilst driving. These are the arrangements which led to the termination of his employment.
[20] Mr Perry had a mobile phone which needed replacement. He decided to buy a new mobile phone. He took the sim card from his old mobile phone and placed it in his new mobile phone. On the occasion the subject of complaint that new mobile telephone was in his bag. There is no allegation that Mr Perry attempted to use that mobile phone which was activated and contained a sim card.
[21] Rather than buying a new device to broadcast music Mr Perry used his old mobile telephone for that purpose. That old mobile telephone did not contain a sim card. It was therefore inactivated for telephone calls, messages or texting. Mr Perry used that mobile phone for the sole purpose of listening to music. His evidence was:
“… on that day, I had to - I had my mobile phone with me in my bag and I had that device there listening to music and that was because that unit had failed as a telephone and I needed a new one which is what the invoice was your Honour saw earlier. That was for the purchase of two new handsets prior to the day of this happening. So when we got those home, we unpacked them, charged them up and put our SIM cards in and then that thing was relegated to those sort of duties. So on the day the only confusion that I had is that I knew that whenever I needed to make a mobile phone call or do anything like that, text messaging or anything like that, I got off the bus, got out of my seat and did it exclusively specifically outside of the bus or outside of the driver’s seat with the vehicle secure and that was my policy on my mobile phones. That’s it. So when I was listening to music I wasn’t - I didn’t believe that I was using a mobile phone and I still don’t.”
[22] During the course of his duties Mr Perry glanced at and tapped the mobile phone for the purpose of listening to music.
[23] From my observation of Mr Perry’s actions his conduct amounted to no more than a quick glance and tap. It presented no greater danger than a driver’s ordinary observation of the dashboard or other implements in a moving vehicle.
[24] Mr Perry believed that he had converted his old mobile phone to the equivalent of a MP3 player. When Mr Perry was interviewed by Mr Booth on 4 November 2015, and spoken to again on 5 November 2015, he did not raise this issue. Mr Booth’s evidence is that Mr Perry’s explanation would not have altered his decision to terminate his employment. Mr Perry appealed. Mr Booth decided to terminate the employment of Mr Perry.
[25] Mr Perry informed Mr Hurley, who heard Mr Perry’s appeal from Mr Booth’s decision to terminate his employment, that he was using his mobile phone for the purpose of playing music.
[26] Mr Perry’s evidence 15, which I accept, is that he commenced work as a bus driver for Transdev three weeks after termination of his employment by Hillsbus. He has lost fifty dollars net per week in that employment from commencement and continuing.
[27] There was much discussion at the hearing between myself and Mr Marshall appearing for Hillsbus, as to whether the old mobile phone, without a sim card, and used as a music broadcasting device, was still a mobile phone covered by the Regulation. This issue is complicated by the fact that other devices, which are not mobile phones, but are instead specifically designed for broadcasting music, are almost identical in size and functionality for broadcasting music, and their use is not prohibited.
[28] Having considered the Regulation I am satisfied that the old mobile phone, minus sim card, and used as a music broadcasting device was still a mobile phone. The Regulation prohibits the use of a mobile phone to “perform an audio playing function” unless secured in a mounting fixed to the vehicle (Regulation 300(1)(a) and (b)). The old mobile phone was performing an audio playing function even though it was no longer capable, absent a sim card, of ordinary telephonic functions.
(My emphasis)
[29] It is necessary for me to determine whether Mr Perry’s termination of employment was harsh, unjust or unreasonable having regard to the criteria referred to in s.387 of the Act which is set out below:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 for followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
Valid reason - s.387(a)
[30] I am satisfied that the old mobile phone used by Mr Perry to play music was still a mobile phone. I am satisfied and find that Mr Perry breached the Regulation by tapping that mobile phone. I am satisfied that as a result of that breach of the Regulation and therefore the relevant policy of Hillsbus there was a valid reason for the termination of Mr Perry’s employment with notice.
Whether the person was notified of the reason for termination of employment – s. 387(b)
[31] I am satisfied that Mr Perry was notified of the reason for termination of his employment.
Whether the person was given an opportunity to respond to the reason for the termination of their employment - s. 387(c)
[32] I am satisfied that Mr Perry was given a sufficient opportunity to respond to the reason for the termination of his employment.
Whether there was an unreasonable refusal by the employer to allow the attendance of a support person- s. 387(d)
[33] I am satisfied that there was no unreasonable refusal by the employer to allow the attendance of a support person. Mr Perry attended the meeting with Mr Booth with Mr Allan Taylor, a fellow driver. Mr Powell, Chairman of the Works Committee, was in attendance at Mr Perry’s appeal hearing before Mr Hurley.
ss. 387(e), (f) and (g)
[34] I am satisfied that these provisions are not relevant to my consideration of this application.
Other matters - s. 387(h)
[35] There are a number of matters which I have taken into account in determining whether the termination of Mr Perry’s employment was harsh, unjust or unreasonable.
[36] I have taken into account my finding that Mr Perry genuinely believed that he had converted hisold mobile phone into a music broadcasting device and that it was therefore no longer a mobile phone covered by the Regulation.
[37] There was conflicting evidence regarding the availability of the policies, Drivers Guides and Safety Alerts concerning the use of mobile phones. Whatever might have been the distribution of the Hillsbus policies and Driver’s Guides and Safety Alerts, I am satisfied that all employees of Hillsbus, as New South Wales licensed drivers, are aware of the legislative prohibition on the use of a mobile phones. I have also taken into account what I am satisfied is the ambiguity arising from the inadequate information and inadequate explanation by Hillsbus regarding the application of the relevant Hillsbus policy to acceptable music broadcasting devices.
[38] Mr Booth included in his description of banned devices all electronic devices which would be a distraction to a driver. His evidence was that this includes a CD player which was not built into the dashboard, and a transistor radio. In cross-examination 16, he gave evidence that an AM/FM radio of a size less than 30 cm x 20 cm (12 inches x 8 inches) would be able to be carried under the policy, although his evidence was that that he would not allow or recommend it.
[39] Mr Booth’s evidence about what is or is not a device similar to a mobile phone was confused. His understanding of what an electronic device might be was unclear. He does not consider that it includes a two-way radio which is allowed to be used whilst driving although, to use the radio a driver has to pick it up, press a button and talk into it. He conceded that the policy does not cover a smartwatch, although he considers it would be distracting. The policy refers to a similar device. He considers a similar device to be an electronic device, although it is not defined in that fashion. 17
[40] I have taken into account the fact that Mr Perry’s driving record includes the offence “Drive using handheld mobile phone” on 21 December 2004.
[41] I have taken into account, but not given any particular weight to, the balance of Mr Perry’s driving record including those instances involving “at fault” accidents. Although Mr Perry had received a final written warning in relation to these accidents on 17 September 2015 I do not consider that they are the same category of offences as that for which he was dismissed.
[42] I have taken into account the fact that, had Mr Perry conducted himself in the same manner whilst using a different, but physically indistinguishable device such as a MP3 player, or small transistor radiohe would not have been engaging in conduct which was a valid reason for the termination of this employment. I consider this fact contributed to Mr Perry’s misunderstanding.
[43] I have taken into account my observation of the footage of Mr Perry’s conduct. Although he breached the Regulation by using his old mobile phone as a music broadcasting device I am satisfied that his conduct was not unsafe.
[44] I have taken into account the delay by Hillsbus in investigating the customer complaint which led to the termination of Mr Perry’s employment. This is not a factor to which I gave great weight, but I consider that it was an inconsistent approach to a complaint involving public safety which was said to justify termination of employment. It is inconsistent with Hillsbus’ stated approach to this issue.
[45] I have taken into account the matters raised by Mr Perry for the consideration of Mr Booth at his first interview. The correspondence, which sets out issues which were raised by Mr Perry in mitigation and by way of submissions on penalty, is extracted below:
“Dear John,
As requested in our meeting on Wednesday 04/11/2015, I have prepared list of reasons regarding the continuation of my employment with Hillsbus/CDC for your perusal.
● I love my Job.
● I carry out my work with enthusiasm.
● I respect the Laws and Management of the entire CDC entity.
● I have received a formal commendation from CDC inspectors.
● I have acted in every capacity offered to me without complaint e.g. WAD.
● I make every effort to maintain OTR.
● I have assisted with social club events.
● I have mentored new drivers, and make a point of introducing myself to new drivers.
● I have paid and assisted in construction of the motorcycle parking shelter.
● I have enjoyed working alongside the people at Dural depot and take an interest in their wellbeing – e.g. after the death of Peter Cunliff-Jones, I volunteered my services to his family for over 6 months.
● I have provided advice and practical assistance to fellow workmates in my capacity as a mechanic.
Preparing this response further highlights the seriousness of my behaviour. Being mindful that just one person feels the need to report this issue, suggests I have failed at being a worthy representative of CDC.
I wish to apologise to all parties concerned. I can assure you that this will never happen again.
Thank you for your consideration,
Con Perry.”
[46] I have taken into account the loss of income and loss of convenience of employment experienced by Mr Perry, arising from the termination of his employment.
[47] I have taken into account the fact that the misconduct of Mr Perry involved issues of public safety.
[48] Having regard to the issues to which my attention is directed by s.387 of the Act I am satisfied that the termination of Mr Perry’s employment was harsh.
Remedy
[49] Having determined that the termination of Mr Perry’s employment was harsh I now have to consider remedy.
[50] I have considered whether the remedy of reinstatement is appropriate. I considered my findings of fact and the background to this application. I have considered the submissions of the parties. I am satisfied that reinstatement is appropriate in all the circumstances of this application.
[51] I have determined that Mr Perry should be reinstated to the position he occupied with Hillsbus immediately before termination of employment, with continuity of service.
[52] I have considered whether Mr Perry should be paid compensation for his loss of remuneration from termination of employment until reinstatement. After having taken into account those matters to which my attention is directed by the Act which I have dealt with below I am satisfied that compensation should be paid to Mr Perry.
[53] I have taken into account and considered whether an order to this effect would have any effect on the viability of Hillsbus. I am satisfied that it would not.
[54] I have taken into account and considered the length of Mr Perry’s service with Hillsbus. It was a neutral consideration.
[55] I have taken into account and considered the remuneration that Mr Perry would have received if he had not been dismissed.
[56] I have taken into account and considered Mr Perry’s efforts to mitigate his loss. I am satisfied that he obtained employment as promptly as was reasonable.
[57] I have taken into account and considered the remuneration likely to have been earned by Mr Perry from termination of his employment to the issue of this decision and any consequent order.
[58] I have taken into account the income reasonably likely to be earned by Mr Perry from the making of this decision to the payment of compensation.
[59] I have taken into account my finding as to the ambiguity of the Hillsbus policy and I have decided not to reduce any compensation payable to Mr Perry on account of any misconduct.
[60] The quantum of compensation can be the subject of further consideration by both parties. If an amount is agreed by the parties they should advise Chambers. If no agreement is reached within seven days of the date of this decision I will hear further submissions from the parties.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr C. Perry and Mr D. Rowe for the Applicant.
Mr R. Marshall, solicitor, for the Respondent.
Hearing details:
2016.
Sydney:
March 8.
1 Exhibit CDC 2 (Annexure K)
2 Exhibit CDC2 (Annexure M)
3 Hillsbus policy – use of mobile phones.
4 Exhibit 10A(2)
5 Exhibit CDC2 (Annexure G)
6 Exhibit CDC2 (Annexure O)
7 Respondents Submissions [9] – [10].
8 Respondent’s Submissions at [11].
9 Ibid at [13]
10 Ibid at [20]
11 Ibid at [26]
12 Exhibit CDC2 at [27]
13 Respondents submissions at [27]
14 Ibid at [30]
15 Transcript PNs269-273
16 Transcript PNs 785-798
17 Transcript PNs 1022-1024
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