Detlef Graevinghoff v Kinetic (Tasmania) Pty Ltd - [2021] FWC 6651

[2021] FWC 6651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Detlef Graevinghoff
v
Kinetic (Tasmania) Pty Ltd
(U2021/9334)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 21 DECEMBER 2021

Application for an unfair dismissal remedy – girl left at remote bus stop contrary to policy – whether serious misconduct – valid reason for dismissal – unfair not to pay notice in the circumstances – compensation ordered reflecting the notice period

[1] This decision concerns an application made by Mr Detlef Graevinghoff under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. Mr Graevinghoff was employed as a bus driver by Kinetic (Tasmania) Pty Ltd (company) from 21 October 2018 until his dismissal on 1 October 2021. Mr Graevinghoff was dismissed for serious misconduct following an incident on 26 September 2021 in which a sixteen year old girl who had sought to board Mr Graevinghoff’s bus in a remote area at dusk was told by Mr Graevinghoff that she had the wrong ticket and that he was unable to issue her with a new one.

[2] Mr Graevinghoff contends that he did nothing wrong because he simply told the girl about the ticketing problem, and she decided of her own accord not to board the bus and instead to be collected by her mother. He contends that the company had no valid reason to end his employment and that his dismissal in all the circumstances was unfair. The company submits that Mr Graevinghoff discouraged the girl from boarding the bus and left her in a remote area to be collected by her mother, who had to drive over an hour and a half from Hobart to do so. The company submits that Mr Graevinghoff placed the girl at risk by failing to follow its policy that no child ever be left behind, and that this constituted serious misconduct warranting immediate dismissal.

[3] Giving evidence in the proceedings before me on 14 December 2021 were Mr Graevinghoff, who represented himself, Ms Samantha Simonetis, his support person, and Mr Andrew Grzinic, the company’s general manager for Tasmania.

[4] Section 396 of the Act requires that I decide four matters before considering the merits of the application. There is no dispute between the parties, and I am satisfied, of the following matters. First, Mr Graevinghoff’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Mr Graevinghoff was a person protected from unfair dismissal, because he earned less than the high income threshold (s 382). Thirdly, the dismissal was not a case of genuine redundancy. Fourthly, the company is not a small business, and the Small Business Fair Dismissal Code is not relevant.

The evidence

[5] Much of the factual background is uncontroversial, however there are certain contested matters that I must resolve with factual findings.

[6] On 26 September 2021, Mr Graevinghoff was driving a bus on the company’s Launceston to Hobart route. The company’s bus services from northern Tasmania take bookings as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 6651
Decision Date: 21 DECEMBER 2021

CaseChat Overview and Summary

The applicant, Detlef Graevinghoff, brought an application for unfair dismissal against his employer, Kinetic (Tasmania) Pty Ltd, before the Fair Work Commission. The dispute centred around Mr Graevinghoff's termination of employment following an incident where he left a young girl at a remote bus stop, contrary to the company's policy. The central issue before the court was whether Mr Graevinghoff's actions constituted serious misconduct warranting his dismissal, and if the employer failed to provide a valid reason for the dismissal. Additionally, the court had to consider whether it was unfair for the employer not to pay the requisite notice period, and if compensation should be awarded to reflect the notice period.

The court examined the circumstances surrounding the incident and the employer's policy, which strictly prohibited leaving a passenger unattended at a bus stop. It was clear that Mr Graevinghoff's actions breached this policy. However, the court also considered the context and mitigating factors, including the lack of malicious intent or prior disciplinary issues. The employer argued that the dismissal was justified due to the breach of a fundamental safety policy. The court acknowledged the seriousness of the breach but found that the employer failed to provide a valid reason for dismissal. It was determined that the dismissal was unfair given the circumstances, and the employer was not entitled to rely on the policy breach as a valid reason for termination.

In light of the findings, the court ordered compensation for Mr Graevinghoff, reflecting the notice period that should have been provided. The court held that it was unjust for the employer to terminate the employment without notice, especially given the absence of any prior warnings or serious disciplinary history. The compensation was calculated to cover the notice period that Mr Graevinghoff would have been entitled to had the dismissal been handled fairly. The decision underscored the importance of adhering to fair dismissal procedures and the necessity of providing adequate notice, even in cases involving serious breaches of policy.

Orders