Dissanayake v Busways Blacktown Pty Ltd - [2011] FWA 3549

Note: An appeal pursuant to s.604 (C2011/5081) was lodged against this decision and the order arising from this decision [PR510420] - refer to Full Bench decision dated 22 September 2011 [[2011] FWAFB 6487] for result of appeal.

[2011] FWA 3549

FAIR WORK AUSTRALIA

DECISION

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

Siriwardana Dissanayake
v
Busways Blacktown Pty Ltd
(U2010/11936)

DEPUTY PRESIDENT SAMS

SYDNEY, 23 JUNE 2011

Application for unfair dismissal remedy - serious and wilful misconduct - serious allegations against bus driver - breaches of various Company policies - investigation - procedural fairness - whether dismissal ‘harsh, unreasonable or unjust’ - allegations proven - application for remedy dismissed.

INTRODUCTION

[1] This decision will determine an unfair dismissal application lodged by Mr Siriwardana Dissanayake (‘the applicant’) pursuant to s 394 of the Fair Work Act 2009 (‘the Act’). The applicant was dismissed from his employment as a bus driver at Busways Blacktown Pty Ltd (‘Busways’) (‘the respondent’) on 19 August 2010. The respondent employs 894 casual and permanent bus drivers. The applicant had commenced employment as a casual bus driver on 7 November 2005, and became a permanent employee on 13 February 2006. The applicant was dismissed for alleged misconduct following two incidents which occurred while he was driving his bus on 3 and 16 August 2010. The two incidents were identified in his letter of termination of 19 August 2010, which read as follows:

“Dear Siriwardane (sic),

Re: Termination of Your Employment

We refer to the meeting on the 19th August 2010 at Blacktown Depot involving, Mr. Bob Mason - Regional Operations Manager, Mr. Maurice Hogan - Operations Support Manager, Mr. Brad Cooper - Human Resources Manager and Mr. Kenneth Yearsley (Employee Representative).

The purpose of the meeting was to advise you of the outcomes of the workplace investigation by Busways into:

(i) allegations regarding aggressive and unsafe driving involving students who were injured on your bus on the 3rd August 2010;

(ii) allegation of inappropriate behaviour where you allegedly threatened a passenger on the 16th August 2010.

External parties provided the Company with witness statements to facilitate our investigations. During the meeting on the 19th August 2010 you refused to give the Company your version of how these incidents occurred.

We have concluded our workplace investigation into the above allegations and determined that:

(a) On both occasions your conduct amounts to wilful and deliberate behaviour that is unacceptable and inconsistent with the continuation of your employment relationship with Busways;

(b) Your conduct and repeated behaviour has threatened the health and safety of our passengers including the reputation of Busways.

Busways has decided to terminate your employment effective immediately on the basis that your actions and conduct during both incidents on 3rd August 2010 and 16th August 2010 amounts to gross misconduct.

Yours sincerely,

Bob Mason

Regional Operations Manager - Sydney”

[2] On 26 August 2010, the applicant filed an application for an unfair dismissal remedy and the matter was unable…

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: [2011] FWA 3549
Decision Date: 23 JUNE 2011

CaseChat Overview and Summary

The applicant, Dissanayake, applied for an unfair dismissal remedy against Busways Blacktown Pty Ltd, his former employer. Dissanayake was dismissed following allegations of serious and wilful misconduct, including breaches of company policies. The application was heard in the Fair Work Commission, which was tasked with determining whether the dismissal was harsh, unjust, or unreasonable.

The legal issues before the court included whether the company had proven the allegations against Dissanayake, and if the dismissal process was procedurally fair. The court had to consider if the dismissal was justified and whether it met the criteria for being deemed unfair. The applicant argued that the process did not afford him procedural fairness and that the dismissal was unjust.

The Fair Work Commission found that the allegations against Dissanayake were substantiated, and that he had indeed breached various company policies. The Commission concluded that the dismissal process was procedurally fair, as it provided the applicant with adequate opportunity to respond to the allegations. Given these findings, the court determined that the dismissal was not harsh, unjust, or unreasonable, and thus dismissed the application for an unfair dismissal remedy.

No further orders were made by the court.

Orders