No judgment structure available for this case.

[2016] FWC 2900

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eligh Hart
v
ACT Government as represented by the Territory and Municipal Services Directorate
(U2015/9959)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 10 MAY 2016

Application for relief from unfair dismissal - harsh, unjust or unreasonable - dismissal not unfair - application dismissed.

[1] Mr Eligh Hart (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) on 7 August 2015 alleging that the termination of his employment by the Australian Capital Territory (ACT) Government as represented by the Territory and Municipal Services Directorate (which incorporates the Australian Capital Territory Internal Omnibus Network) (ACTION - the Respondent) on 21 July 2015 was unfair.

[2] The application was heard on 27 November 2015. At the hearing, Mr Joseph Lavelle Wilson, a Legal Officer with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), appeared for the Applicant, while Ms Heidi Robinson appeared with permission for ACTION. Mr Hart gave evidence on his own behalf, together with Mr Peter Fenyvesi, a Shift Manager/Supervisor with ACTION. Mr Darrell Shepherd, ACTION’s Operational Fleet Manager, and Mr Alistair Kirkpatrick, Workshop Manager for ACTION’s South Workshop, both gave evidence for the Respondent.

[3] For the reasons set out below, I have found that there was a valid reason for Mr Hart’s dismissal and that his dismissal was not harsh, unjust or unreasonable. As such, Mr Hart’s dismissal was not unfair and his application will therefore be dismissed. An Order to that effect will be issued in conjunction with this decision.

Background

[4] Mr Hart commenced employment with ACTION in 2005 as a fueller cleaner. In 2009 Mr Hart commenced a diesel mechanic apprenticeship which he completed in 2013.

[5] In January 2015, Mr Hart was assigned the task of performing a check and wheel bearing lubrication service on Bus 881. Mr Hart performed the job with an apprentice, Mr Aaron Sawka. The task required the removal and disassembly of the bus’ wheels, with one of the anti-lock braking system (ABS) pulse rings damaged in the process of disassembling the wheels. This delayed completion of the task.

[6] Mr Hart contended that throughout the day he was repeatedly pressured by Mr Kirkpatrick to complete the task and have the bus returned to service.

[7] By way of background, on the dashboard of the bus, there is a warning light which is connected to the bus’ ABS. The warning light turns on when the bus starts up and turns off when the bus is driven over a certain speed (5 to 7 kmph). Having attempted to repair the ABS pulse ring, Mr Hart tested the brakes and found them to be operating normally however the ABS warning light did not turn off. Mr Hart then conducted some further tests but the light still would not turn off. Mr Hart then put the bus on the brake tester, described in his submissions as a sophisticated drive on machine, which confirmed that the bus’ brakes were operating well within the acceptable range.

[8] Under continuing pressure from Mr Kirkpatrick to have the task completed, Mr Hart then removed the globe from the ABS warning light, telling Mr Sawka not to look as he did this.

[9] On 12 February 2015, as part of a regular inspection of Bus 881, it was discovered that the ABS warning light globe had been removed. A subsequent check of the maintenance log for the bus found that Mr Hart had worked on the bus on 23 January 2015.

[10] On 17 February 2015 Mr Hart met with Mr Shepherd and admitted to having removed the globe from the ABS warning light. A further meeting was held on 23 February 2015 at which time Mr Shepherd informed Mr Hart that the matter would be referred to ACTION’s Human Resources area, though this aspect was disputed by Mr Hart.

[11] On 6 March 2015 ACTION wrote to Mr Hart advising that the matter would be investigated in accordance with Section H – Workplace Behaviours of the ACTION Enterprise Agreement 2013-2017 1 (the Agreement). However, as Mr Hart was on leave at that time and had not updated his residential address, that letter was only hand-delivered to Mr Hart on 25 March 2015. Despite this, the investigation commenced on 6 March 2015. The allegation which was subsequently put to Mr Hart was as follows:

“On 23 January 2015 you removed the ABS warning light globe from the dashboard of ACTION Bus 881 which you returned back into service; as a result this compromised the safety of an ACTION vehicle and compromised the safety of ACTION employees and passengers.” 2

[12] The investigation concluded that, on the balance of probabilities, the allegation was substantiated, that it was more than likely that Mr Hart may have engaged in misconduct as defined in the Agreement, and that Mr Hart may have engaged in serious misconduct as defined by the Fair Work Regulations 2009 – Reg 1.07.

[13] Following completion of the investigation, Mr Hart was suspended from duty with pay on 4 June 2015 pending a final decision on disciplinary action.

[14] Mr Hart was subsequently dismissed with effect from 21 July 2015 and was paid four weeks’ notice in lieu.

The Applicant’s case

[15] Mr Hart submitted that his conduct was not in contest, that he accepted his conduct was not correct and that as a broad proposition safety breaches may be capable of forming a valid reason for dismissal. Mr Hart however, relying on the decision in Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt. Thorley Operations/Warkworth 3 (Lawrence), submitted that this was not automatic though, adding that when his conduct was viewed in the appropriate surrounding context and all relevant factors were taken into account, his dismissal was unjust and unreasonable. Mr Hart did not further press that his dismissal was unjust and unreasonable.

[16] Mr Hart also contended that his dismissal was harsh for several reasons, including that he was dismissed several months after the conduct occurred and after he had already been disciplined for the incident. Further, his dismissal was harsh having regard to his exemplary work and safety record, his full admission and contrition, and his personal circumstances.

[17] As to remedy, Mr Hart sought an order of reinstatement, compensation and preservation of the continuity of his employment.

[18] In his oral submissions, Mr Hart contended that ACTION had not demonstrated that he had failed to fix the ABS pulse ring or that the bus’ ABS system was not functioning effectively. Mr Hart further contended that the termination letter stated that there was a potential that the brakes could have failed and caused serious injury, adding that the evidence in this matter supported a conclusion that the risk was neither serious nor imminent. Mr Hart submitted that whilst his safety breach was not trivial it was also not at the most serious end of the scale, adding that the evidence before the Commission did not support a finding that there was a valid reason for his dismissal.

[19] As to the issue of harshness, Mr Hart highlighted in his oral submissions that he had been reprimanded for his conduct and warned by Mr Shepherd that further safety issues may result in disciplinary action and that the file note of the 17 February 2015 meeting indicated that the matter was “Referred to HR” as opposed to being referred for investigation. Mr Hart also submitted that ACTION had in effect condoned his conduct by electing to continue his contract of employment after he had admitted to his conduct. Mr Hart relied on the principles regarding condonation set out in Cannan and Fuller v Nyrstar Hobart Pty Ltd (Nyrstar) 4. Finally, Mr Hart pointed to his 10 years of exemplary service, his personal circumstances as a single father and the significant emotional effect the dismissal had on him as supporting a finding of harshness in this case.

[20] As to remedy, Mr Hart contended that it would not be appropriate for there to be any reduction in back pay were he to be reinstated.

[21] Mr Hart in his witness statement 5 largely set out the chronology of events leading up to his dismissal, acknowledging among other things that he had removed the globe from the ABS warning light. Beyond that, Mr Hart deposed that his dismissal had had a devastating impact on him emotionally and that his work record was perfect “until this one mistake.” Key aspects of Mr Hart’s oral evidence were that:

he was pretty sure that he did not ask for assistance when he was having difficulty rectifying the ABS warning light issue;

while he was under pressure, he also had other things on his mind – in particular, wanting to get home as Friday 6 was the day that he had his children;

had he not felt pressured to complete the task he would have left the job and finished it on the following Monday;
it was part of a bus driver’s duty to look at the ABS warning light every day, conceding that as a result there an element of him “passing the buck” to drivers;
at the time he removed the globe he did not think that there would be any safety risk at all;
he had at the time turned his mind to what would occur if the bus was involved in an accident but “put faith in my own work and my skills and how I’ve been taught” 7;
while he knew it was “stupid ethics” 8 to remove the globe he did so because “it would get Alistair [Mr Kirkpatrick] off my back for the day and everyone would be happy”9;
he considered his dismissal a little harsh given that it was his only mistake in 10 years of working for ACTION;
at the meeting of 17 February 2015 Mr Shepherd had advised him that he would work with Mr Brian Stent who would revise Mr Hart’s ethics and the way he worked and that he would be reviewed monthly, adding that “they all passed with flying colours” 10;
he accepted working with Mr Stent as a safety measure and as more prior learning;
he disputed that the handwritten words “Referred to HR” were on the file note of the meeting of 17 February 2015 when he signed that note on 23 February 2015;
he had not applied for any jobs since his dismissal but had undertaken some casual work and a lot of voluntary work;
he had not taken up an offer of employment with Waste Away in around September 2015; and
at no point when he tested the bus on 23 January 2015 did he detect that the brakes were skidding or grabbing on one side, adding that the bus ran perfectly.

[22] In his witness statement 11 Mr Fenyvesi deposed that he had worked closely with Mr Hart for about 10 years and that he considered it out of character for him to have removed the globe from the ABS warning light. Mr Fenyvesi further deposed that he considered Mr Hart’s dismissal disproportionate to the breach he committed. In his oral evidence, Mr Fenyvesi attested, among other things, that were Mr Hart to return to work he would not have any difficulties working with him and would trust him12.

The Respondent’s case

[23] ACTION submitted that Mr Hart’s conduct was sufficiently serious to justify the termination of his employment for three reasons:

his actions were inconsistent with the continuation of his contract of employment because they undermined ACTION’s trust and confidence in him, adding that his behaviour showed a lack of probity, or trustfulness, and caused his managers to be concerned that they could not trust him to work unsupervised in the future;

the removal of the light constituted a risk to health and safety; and

Mr Hart’s conduct had the potential to cause serious risk to the reputation of ACTION’s business.

[24] ACTION also denied that Mr Hart’s conduct occurred under sustained pressure but agreed that there were often timing pressures.

[25] ACTION denied that Mr Hart had been subjected to double discipline, contending that while Mr Shepherd did require Mr Hart to work under supervision after the meeting of 17 February 2015 that this was a safety precaution and not a form of disciplinary action. ACTION also acknowledged that Mr Shepherd could have been clearer about the process but highlighted that the file note of the meeting makes it clear that Mr Shepherd advised Mr Hart that his conduct would be referred to ACTION’s Human Resources area. As to Mr Hart’s personal circumstances, ACTION conceded that his conduct to date had been unproblematic, that he was both honest and contrite during in the investigation and that he acknowledged the foolishness of his actions. ACTION further submitted that any harshness must be weighed against the potentially serious consequences for its reputation, the risk posed to the safety of drivers, passengers and pedestrians and the loss of trust and confidence between Mr Hart and ACTION management. ACTION further contended that having regard to those considerations, the dismissal was not unduly harsh. ACTION also submitted that the circumstances in this case were distinguishable from those in Lawrence.

[26] As to remedy, ACTION submitted that should the Commission determine that Mr Hart had been unfairly dismissed the appropriate remedy was compensation as opposed to reinstatement. To support that submission ACTION cited the evidence of Mr Shepherd that he would not be comfortable allowing Mr Hart to work without supervision should he be reinstated and Mr Kirkpatrick’s evidence that reinstatement would send a poor message to other employees who may be tempted to cut corners if they think there will be no ramifications.

[27] In its oral submissions, ACTION submitted that:

Mr Shepherd’s evidence should be preferred regarding the issue of whether the words “Referred to HR” were inserted on the file note at the time Mr Hart signed it;

an investigation was necessary because under the Agreement disciplinary action cannot be taken by a manager or supervisor, adding that as Mr Shepherd had no delegation to do anything there was no issue of double punishment;

ACTION swiftly investigated the matter on a preliminary basis and took precautions to ensure that Mr Hart continued working while the preliminary investigation was undertaken, with the matter subsequently referred up the line for investigation;

the issue was not whether Mr Hart had fixed the ABS pulse ring but rather his action in removing the globe from the ABS warning light when he could not get the warning light to go off;

Mr Hart was aware that what he did was wrong given that he asked Mr Sawka to look away when he removed the globe;

the removal of the globe by Mr Hart was a risk to health and safety, a dishonest act, a reckless act, an act that undermined the employer’s trust and confidence in Mr Hart’s ability to do his job and was therefore a valid reason for his dismissal;

reinstatement would not be appropriate in this situation;

in determining any compensation in this case regard should be had to the fact that Mr Hart had the opportunity to mitigate his loss and had failed to do so for a period of several months; and

while it was a shame for ACTION to lose Mr Hart, its first obligation had to be to the public and to public safety and to the maintenance of the ACT’s only public transport system.

[28] In his witness statement 13 Mr Shepherd deposed that:

his role may require him to handle disciplinary matters, adding that while he could handle some matters informally he would forward onto Human Resources any issues requiring disciplinary action or an investigation;

at the meeting of 17 February 2015 Mr Hart admitted that he had removed the globe from the ABS warning light;

he informed Mr Hart at that meeting that he was to immediately work under the supervision of Mr Stent, adding that this was not part of a performance management measure but rather a safety measure as he could no longer allow Mr Hart to work unsupervised;

he did not say to Mr Hart that he would be reviewed monthly;

placing Mr Hart under Mr Stent’s supervision was intended to be an interim measure until he could decide what to do about the matter;

during the meeting of 23 February 2015 he advised Mr Hart that he would have to refer the matter to Human Resources for consideration and that the words “Referred to HR” were added to the file note prior to anyone signing the note;

in his experience Mr Hart was not a “bad bloke” and that his actions in removing the globe were “incredibly stupid”; and

he could no longer trust Mr Hart nor could he trust him to perform the work of an unsupervised mechanic of the kind required at Mr Hart’s classification level.

[29] Mr Shepherd, in his oral evidence, reiterated a number of aspects of his witness statement. Beyond that, he attested that:

he instructed Mr Hart that if he had any concerns or issues relating to the roadworthiness of a bus he must notify a supervisor and/or workshop manager;

he had undertaken a preliminary assessment of Mr Hart’s behaviour as per section H2 of the Agreement;

the words “Referred to HR” on the file note of the 17 February 2015 meeting do not actually mention an investigation;

99 per cent of the issues he investigated were referred to Human Resources;

he had directed Mr Hart to work under Mr Stent’s supervision as a safety measure and not as disciplinary action;

he did not accept that giving an employee a warning and creating a record of that warning was disciplinary action, adding that he had given Mr Hart a verbal warning of what he needed to do in the future but that he did not take disciplinary action against Mr Hart;

he had warned Mr Hart that if there were any further safety or work issues that disciplinary action would be taken;

no one who had worked on Bus 881 between 23 January and 12 February 2015 had reported that the ABS warning light was not working;

he could trust Mr Hart in the sense that he is a nice bloke, he was honest with ACTION, he would probably not do the same thing again and he would seek advice in future, adding that despite this and given what Mr Hart had done without first seeking advice it would make it very difficult for him to re-employ Mr Hart;

he referred all safety related matters for investigation;

he does not have a delegation to take disciplinary action against an employee; and

in this case he had recommended to Human Resources that Mr Hart be stood down.

[30] In his witness statement 14 Mr Kirkpatrick deposed that:

as the incident of 23 January 2015 occurred during school holidays there would have been less pressure to get the bus back on the road;

at no time would it be acceptable to do things improperly only to get a bus on the road;

he did not think it would ever be acceptable to remove a warning light, adding that in this case, at the very least, Mr Hart should have reported that he could not get the ABS warning light to go out so that someone else could take a look at it;

the fact that Mr Hart did not report what he had done was a very serious concern;

if the bus had been involved in an accident, its brakes would have been one of the first things checked, with that check revealing that the globe had been removed from the ABS warning light;

even if it turned out that the bus’ brakes were working perfectly the damage to ACTION’s reputation could be very significant;

Mr Hart had been a good employee;

he would find it very difficult to trust Mr Hart again; and

reinstating Mr Hart would set a very bad example, adding that while he felt sorry for Mr Hart in his view it was appropriate to send a consistent message that such behaviour would not be tolerated.

[31] Key aspects of Mr Kirkpatrick’s oral evidence were that:

there were other disciplinary measures aside from dismissal;

he did not see Mr Hart put the damaged pulse ring in the bus;

he was not pressuring Mr Hart to get the job done but just asking him “What’s taking so long?”;

to his knowledge no one reported any problem with the ABS warning light prior to 12 February 2015;

the ABS warning light coming on indicates a fault in the system but does not indicate a brake failure;

Mr Hart had been a good employee and a good worker;

Mr Hart continued to work for ACTION until 9 June 2015 despite his conduct having been discovered in February 2015;

Mr Hart working with Mr Stent was not a disciplinary measure;

he did not feel he could trust Mr Hart again at the time of his dismissal; and

he was unable to say how long it would take Mr Hart to win his trust back.

The statutory framework

[32] The Fair Work Commission (the Commission) exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Hart is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 followed in effecting the dismissal; and
(h) any other matters that FWC considers relevant.”

[33] There is no dispute that Mr Hart was dismissed, so s.385(a) of the Act is satisfied. Mr Hart contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. ACTION is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Mr Hart was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[34] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. In this case, the parties agreed that the issues in dispute were whether there was a valid reason for Mr Hart’s dismissal and/or whether his dismissal was harsh. Against that background and based on the material before the Commission, I am satisfied that the criteria set out at s.387(b)-(g) are neutral considerations in this case. I will therefore limit my consideration to whether there was a valid reason for Mr Hart’s dismissal [s.387(a)] and/or whether his dismissal was harsh [s.387(h)].

Was a valid reason for the dismissal related to Mr Hart’s capacity or conduct (including its

effect on the safety and welfare of other employees)

[35] In Rode v Burwood Mitsubishi (Rode’s Case) 15a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.16 The following is an extract from the Full Bench’s decision in Rode’s Case.

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[36] The Notice of Proposed Disciplinary Action letter sent to Mr Hart on 4 June 2015 stated, among other things, as follows:

“Findings and Discipline Action

You have admitted to the following allegations:

removing the ABS warning light globe from the dashboard of ACTION bus 881, which you then returned back into service.

Based on your admissions at interview, I have determined that the allegation is proven and constitutes misconduct. The misconduct is a breach of:

section 9 of the Public Sector Management Act 1994:

(a) exercise reasonable care and skill;
(c) act with probity; and
(l) comply with any lawful and reasonable direction given by a person having authority to give the direction.

The Territory and Municipal Services Code of Conduct.

I have determined that the allegations [sic] is proven on the balance of probabilities and constitute misconduct under Clause H6.5 of the EA. In respect of the findings of the substantiated misconduct I propose to terminate your employment.” 17 (Emphasis as per original)

[37] The Territory and Municipal Services (TAMS) Code of Conduct provides as follows:

“Act professionally

You will always try to act professionally and in a manner that builds the positive reputation of TAMS. This includes:

performing official duties with skill, care and diligence;

…

Work to the best of your ability

All employees will perform their duties to the best of their ability with care, competence and efficiency…

Work safely

All employees are responsible for taking reasonable action to protect the health, safety and welfare of themselves and others in the workplace …” 18

[38] Clause H6.5 of the Agreement deals with “What is Misconduct” and states that:

“For the purposes of this Section, misconduct includes any of the following:

a) the employee fails to meet the obligations set out in section 9 of the PSM Act 1994 (this includes bullying and harassment or discrimination);

b) the employee engages in conduct that has brought, or is likely to bring, the Directorate or ACTPS into disrepute;

…” 19

[39] Mr Hart’s contention that ACTION had not demonstrated that he had failed to fix the ABS pulse ring or that the bus’ ABS system was not functioning effectively misses the point. The issue in this case is not that he failed to fix the problem but rather that when confronted with a problem which he could not fix with part of the bus’ safety system Mr Hart knowingly chose the easy way out by removing the globe from the ABS warning system. That he did so was not only “stupid ethics” as he put it but was also completely unprofessional. Of greater concern, however, is that his actions potentially put at risk the bus’ passengers, other road users and the reputation of ACTION.

[40] As to Mr Hart’s contention that he was under pressure at the time, Mr Kirkpatrick’s evidence was that he asked Mr Hart “What’s taking so long?” This does not in my view constitute pressure, nor is it an invitation to cut corners. To the contrary, it is an invitation to say something along lines of “I’m having problems here, can someone give me a hand.”

[41] Mr Hart also submitted that whilst his safety breach was not trivial it was also not at the most serious end of the scale. I do not accept that argument as, if anything, the safety standards expected of ACTION and its employees as a provider of public transport services are higher than what might be expected in different circumstances. More specifically, the ACT travelling public quite rightly expects those who work to keep ACTION’s buses on the roads will do so without compromising safety and without cutting corners.

[42] Mr Hart’s actions were also inconsistent with his obligations under s.9(a) of the Public Sector Management Act 1994 (the PSM Act) to “exercise reasonable care and skill” in performing his duties and his obligations under the TAMS Code of Conduct to act professionally and work to the best of his ability. His actions also fall within the definition of misconduct in clause H6.5 of the Agreement by virtue of Mr Hart not meeting his obligations under the PSM Act and the potential his actions had to result in reputational damage to ACTION.

[43] Finally, I also note that Mr Hart’s actions set an extremely poor example for the apprentice who was assisting him on 23 January 2015, despite Mr Hart asking Mr Sawka to look away while he removed the globe from the ABS warning light.

[44] Based on the above, I am satisfied that there was a valid reason for Mr Hart’s dismissal. Drawing on the language in Selvachandran, the reason relied upon by ACTION to dismiss Mr Hart was sound, defensible and well founded.

Was the dismissal harsh?

[45] The leading statement of principle regarding the meaning of the expression “harsh, unjust or unreasonable” is the statement in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 20:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” (Underlining added)

[46] Mr Hart contended that his dismissal was harsh because he had been reprimanded for his conduct and warned by Mr Shepherd that further safety issues may result in disciplinary action and that the file note of the 17 February 2015 meeting indicated that the matter was “Referred to HR” as opposed to being referred for investigation. ACTION on the other hand submitted that there was no issue of double punishment as under the Agreement disciplinary action cannot be taken by a manager or supervisor. Also relevant is Mr Shepherd’s evidence that 99 per cent of the issues he investigated were referred to Human Resources.

[47] Clauses H2 and H10 of the Agreement provide as follows:

“H2.1 In cases where an allegation of inappropriate behaviour is made, the manager/supervisor will initiate a preliminary assessment process to determine whether further action is required. The manager/supervisor may inform and/or seek the assistance of an appropriate Human Resources Manager.

H2.2 Following this process if the manager/supervisor determines that the allegations:

a) require no further action, then no further action needs to be taken;

b) can be resolved through counselling, other remedial action, or assistance to the employee then the manager/supervisor will implement such action;

…

e) require investigation the manager/supervisor will recommend to the head of service that the matter be investigated;

…

H10 Disciplinary Action and Sanctions

H10.1 In circumstances where the head of service, following an investigation or full admission by the employee, determines that misconduct has occurred, and the head of service considers disciplinary action is appropriate, one or more of the following sanctions may be taken in relation to the employee:

a) a written warning and admonishment;

b) a financial penalty…

c) transfer the employee temporarily or permanently to another position at level or to a lower classification level;

d) remove any monetary benefit derived through an existing Attraction and Retention Incentive (or existing SEA);

e) termination of employment.” 21

[48] The file note of the 17 February 2015 meeting states that “Darrell Shepherd reprimanded Eligh Hart. Eligh was told should any other safety or work issues arise again dispensary [sic] action will be taken.” 22

[49] An analysis of the Agreement’s provisions indicates that the purpose of the preliminary assessment by an employee’s manager/supervisor under clause H2 of the Agreement is to determine whether further action is required and that in circumstances where the manager/supervisor determines that further investigation is required, that course of action will be recommended to the head of service. Further, it is clear from clause H10.1 of the Agreement that it is their head of service who determines whether disciplinary action is appropriate and what sanctions may be taken in relation to the employee. In other words, Mr Shepherd was precluded by the Agreement from taking disciplinary action and/or imposing sanctions on Mr Hart. I also accept Mr Shepherd’s evidence that having Mr Hart work with Mr Stent was a safety measure as he could no longer allow him to work unsupervised. This analysis does not point to Mr Hart’s dismissal being harsh.

[50] As to the issue of whether or not the words “Referred to HR” were included in the file note of the meeting of 17 February 2015 prior to Mr Hart signing it, I prefer Mr Shepherd’s evidence on this issue as it is consistent with his broader evidence and in particular his practice of referring the majority of issues he investigates to Human Resources. While it is not disputed that Mr Shepherd could have been more explicit in terms of the implications of the matter being referred to Human Resources, given the provisions of the Agreement it is difficult to envisage how this could be interpreted as anything other than for the purpose of considering what, if any, further action may be appropriate in the circumstances.

[51] Mr Hart, relying on the decision in Nyrstar, also submitted that ACTION had in effect condoned his conduct by electing to continue his contract of employment after he had admitted to removing the globe. However, in Nyrstar there was considerable evidence that the relevant manager in that case had been aware of the behaviour of certain employees for more than 10 years but never dealt with the behaviour. This contrasts with the circumstances in this case where ACTION, upon discovering that the globe had been removed from the ABS warning light, moved quickly to discuss the matter with Mr Hart and put in place measures to ensure that Mr Hart did not repeat his actions while the matter was investigated. Further, and as noted above, Mr Shepherd was precluded under the Agreement from taking disciplinary action and/or imposing sanctions on Mr Hart. This does not support a finding that ACTION condoned Mr Hart’s conduct. Having said that, I would observe that, in circumstances where Mr Hart had admitted to the conduct, ACTION should have moved much faster to investigate and determine the matter. There is no justification for the process taking five months from 23 February 2015 when the matter was “Referred to HR” until 21 July 2015 when Mr Hart was dismissed.

[52] Finally, Mr Hart pointed to his 10 years of exemplary service, his personal circumstances as a single father and the significant emotional effect the dismissal had on him as supporting a finding of harshness in this case. As previously noted, in support of his contention in this regard, Mr Hart relied on the decision in Lawrence. The following extract from the decision in Lawrence sets out the factors which the Full Bench in that case took into consideration in determining that the dismissal was harsh.

“[34] Mr Lawrence had been employed for 28 years. This is a very long period of service. He has devoted the vast majority of his working life to the respondent. He cannot start a new career.

[35] This very long period of service also needs to be considered in the context that, on the evidence before the Commissioner:

Mr Lawrence was not just a good employee, he was an exemplary employee with an exceptional work ethic.

In 28 years of service Mr Lawrence had not been subject to any disciplinary allegation or action.

In 28 years of service Mr Lawrence had never been guilty of any safety breach (and this in circumstances where he had worked for the majority of the time in a safety critical role).

The conduct that led to his dismissal was, as the Commissioner found, was entirely out of character.

Mr Lawrence admitted the breach as soon as he became aware that the matter was being investigated. As noted by the Commissioner, he was remorseful. In all the circumstances, the prospect of Mr Lawrence reoffending must be regarded as so vanishingly small as to be non-existent for practical purposes.

[36] Mr Lawrence had not found alternative employment at the time of the hearing before the Commissioner notwithstanding reasonable efforts to do so. At 55 years of the age, Mr Lawrence will almost inevitably find it difficult to secure alternative employment, let alone employment at the level of remuneration he was earning in his employment with the respondent. That difficulty is not only a function of his age. It is likely that any employer in the coal industry would be concerned to know why he has left his previous job and would likely be wary of engaging a person dismissed for a safety breach.

[37] Mr Lawrence was the primary breadwinner for his family. Given Mr Lawrence’s age and circumstances, the dismissal is likely to cause Mr Lawrence and his family serious hardship. In the longer term, his superannuation is likely to be adversely affected to a very substantial degree. It is no exaggeration to say that the dismissal of someone in Mr Lawrence’s circumstances has the potential to effectively ruin his life.

[38] We regard the unqualified dismissal of an exemplary employee with 28 years of service, an impeccable disciplinary record and an otherwise impeccable safety record for a policy breach the sort that occurred in this case - particularly when the policy itself contemplates that breaches will not necessarily lead to disciplinary action let alone dismissal and having regard to the personal consequences for the employee and his family - as manifestly harsh. We accept that the misconduct reasonably called for a disciplinary sanction and that a period - even an extended period - of suspension without pay may still have been within the acceptable range. But in all the circumstances, unqualified dismissal was, in our view, manifestly harsh ...”

[53] While there are some similarities between the circumstances in this case and those in Lawrence, e.g. Mr Hart was recognised as a good employee just as the applicant was in Lawrence, there are also some important differences. For instance:

Mr Hart’s length of service is significantly less than that of the applicant in Lawrence;

Mr Hart is much younger than the applicant in Lawrence;

Mr Hart had already rejected an offer of employment following his dismissal, whereas the Full Bench in Lawrence concluded that the applicant would find it difficult to secure alternative employment; and

unlike in Lawrence, there was no evidence before the Commission that Mr Hart was his family’s sole breadwinner.

[54] In other words, the decision in Lawrence does not of itself support a finding that Mr Hart’s dismissal was harsh. As to Mr Hart’s contention that the significant emotional effect which the dismissal had on him made it harsh, it is clear from Mr Hart’s evidence that he really enjoyed his job. Nevertheless, I would observe that someone who has been dismissed from their job is invariably affected by that decision but this does not mean that as a result the dismissal was harsh. In addition, I would note that very little detail was provided regarding the emotional effect of the dismissal of Mr Hart and that there was nothing before the Commission to indicate that Mr Hart’s reaction to his dismissal was anything out of the ordinary.

[55] Taken together, the above analysis does not point to Mr Hart’s dismissal being harsh. Further, having regard to the seriousness of Mr Hart’s conduct in removing the globe from the ABS warning light I do not consider ACTION’s decision to terminate his employment disproportionate in the circumstances.

Conclusion

[56] For all the above reasons, I find that there was a valid reason for Mr Hart’s dismissal and that his dismissal was not harsh, unjust or unreasonable. As such, Mr Hart’s dismissal was not unfair and his application will therefore be dismissed. An Order to that effect will be issued in conjunction with this decision.

Appearances:

J. Lavelle Wilson for the Applicant.

H. Robinson for the Respondent.

Hearing details:

2015.

Canberra:

November 27.

1 AE407927

2 Form F3 – Employer Response to Unfair Dismissal Application at Attachment E

3 (2010) 202 IR 388

4 [2014] FWC 5072

5 Exhibit W2

6 23 January 2015 was a Friday

7 Transcript at PN248

8 Ibid at PN258

9 Ibid

10 Ibid at PN267

11 Exhibit W1

12 Transcript at PN104-106

13 Exhibit R1

14 Exhibit R1

15 Print R4471

16 (1995) 62 IR 371

17 Form F3 – Employer Response to Unfair Dismissal Application at Attachment A

18 Ibid at Attachment G

19 Exhibit W3

20 (1995) 185 CLR 410 at p 465-6.

21 Exhibit W3

22 Exhibit R1 at Attachment A

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Citations

Eligh Hart v ACT Government as represented by the Territory and Municipal Services Directorate [2016] FWC 2900

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

0

NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663

Noel Cannan v Nyrstar Hobart Pty Ltd [2014] FWC 5072

Jones v Dunkel [1959] HCA 8