Hashim Rawat v Westbus Region 1 Pty Ltd
[2011] FWA 4411
•12 JULY 2011
[2011] FWA 4411 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hashim Rawat
v
Westbus Region 1 Pty Ltd
(U2010/14704)
COMMISSIONER HARRISON | SYDNEY, 12 JULY 2011 |
Termination of employment - unfair dismissal - arbitration.
[1] This decision concerns an application by Mr Hashim Rawat pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Westbus Region 1 Pty Ltd (Westbus) was harsh, unjust and unreasonable.
[2] The matter was the subject of an unresolved conciliation conference before a Fair Work Australia conciliator and accordingly was referred for arbitration.
[3] Mr Rawat gave evidence and was represented by Mr S Bull, senior legal officer of the Transport Workers’ Union of Australia, New South Wales Branch (TWU).
[4] Westbus was represented by Mr R Marshall, solicitor. Evidence was given by Mr Phil Davies, Assistant Depot Manager, Mr David Austen, Supervisor, Mr Martin Bautovich, Supervisor, Mr Randall Horton, Depot Manager and Mr Simon Bosnjak, General Manager.
Background
[5] Mr Rawat was employed as a bus driver from June 2009 until 15 November 2010 when he was terminated for serious misconduct following what was described as a “Runaway Bus Incident” on 11 November 2010.
[6] Westbus investigated the incident and concluded that Mr Rawat failed to properly apply the park brake on the bus he had left on the street, resulting in the bus rolling backwards over a pedestrian crossing and into the front fence of a home on the opposite side of the street.
[7] The TWU submits that the termination was not valid because Westbus failed to properly establish that the accident was a result of mechanical failure.
[8] In the alternative, it was submitted that the misconduct, if established, was not serious to the extent that it warranted summary termination particularly given Mr Rawat’s exemplary driving record.
[9] Westbus submits it was appropriate to summarily dismiss Mr Rawat for breaching company policies as set out in its “Drivers Handbook” and having regard to the seriousness of the incident.
[10] At the outset of the hearing on 5 May 2011 I was shown CCTV footage of Mr Rawat driving the bus prior to the incident and also at the time of the incident between 12.02pm and 12.12pm on 11 November 2010.
The Evidence
[11] It was Mr Rawat’s evidence that a week before the incident he injured his fingers when driving an older bus. He states he reported the injury to his supervisor and recorded the details in the relevant accident book although it did not require medical attention at the time.
[12] On 8 November he was referred by his general practitioner for x-rays of the fingers which revealed an “undisplaced fracture through the proximal phalanx of the ring finger.” 1 He was certified unfit for work from 8 to 10 November inclusive.
[13] Upon his return to work on 11 November Mr Rawat states that he felt unwell because of his finger and did not want to work. He was urged to start his shift by Mr Bautovich, his supervisor, because of a shortage of drivers. When he returned to the depot after the first half of his shift he spoke to the assistant manager, Mr Davies and told him he was not coping well, to which Mr Davies replied: “I am busy, just do your work. I cannot help you.” He then resumed his shift and states he was stressed.
[14] Mr Rawat’s evidence regarding the actual incident and subsequent termination is set out in his statement, tendered as Exhibit B1 in the proceedings, as follows:
“After I finished a school trip, I parked the bus at Bennett Road, Colyton. This is a primary school in suburban area. It was around 1.30pm. The students were all in classes. The road was empty. I was there to use the toilet. My friend lives nearby and I was using his toilet. I had just done what was called a ‘sporty’ which was driving a load of students to a sport event from their school. It was private charter. We were allowed after such jobs to take a lunch break and go to the toilet. I was having my crib break.
I stopped the bus in front of Bennett Road School. I parked. I had parked there before. Other drivers parked there because it was the bus stop to pick up school children from this school. I opened the back door. This is because there is no way to lock the front door. With this particular bus, the brakes were applied as soon at the back door was opened. I also recall applying the hand brake. Then I turned the engine off. I then got up and left the bus. The bus had an ‘on’ and ‘off’ switch in relation to the ignition. The ‘off’ switch was showing.
I went to my friend’s house across the road from where I parked the bus. I entered my friend’s house and then a little more than three (3) minutes after I left the bus a courier driver who was nearby yelled at me: ‘Hashim, your bus is rolling your bus is rolling.’ I came out and saw that the bus had landed in the front fence of a suburban house. No one was injured. The only damage I saw on the bus was that the tail light was broken.
The bus rolled down backwards. I got into the bus and moved it forward and parked it where it was before. I rang the depot and told them what had happened. The police arrived and I cooperated with the police. Two weeks later I received an $86 ticket for incorrectly parking my bus. I have since paid the ticket....
The police asked me whether I applied the breaks (sic). I was confused and wanted to take responsibility for the accident I said: ‘Maybe maybe not.’ There was CCTV and it was not clear. It [was] shown to me later and my hand is seen reaching down and applying the hand brake.
I was then stood down for two days from work. I was called in on Friday, 12 November 2011. I went to the depot. There was no CCTV available and I was sent home.
I was called in again on Monday, 15 November [2010]. I arrived at the depot at 1pm. I went into Randall Horton’s office. The TWU delegate Barry was with me. We watched the CCTV footage. Barry and I both thought that I applied the brake. Randall Horton said: ‘Sorry, I have to terminate your employment because it seems to me that you didn’t apply the brake.’ I said: ‘It seems clear to me that I did apply the brake, there is something wrong with the bus, I think that the bus brakes have a mechanical fault, the brakes should apply automatically when the back door is opened.’ Randall Horton then produced a letter indicating that I was terminated. It was already signed. The letter was sitting on his desk when I walked in with Barry.” 2
[15] In cross examination Mr Rawat agreed he had read and understood the meaning of the code of conduct contained in the drivers handbook including the “Cardinal Rules”. Drivers are subject to disciplinary action including dismissal for breach of safety and health rules which in part refer to “Runaway Buses”.
[16] Mr Rawat was challenged on his recollection of the conversation with Mr Davies. He restated he discussed his finger injury, told him he was not coping and that Davies said he was too busy to help him.
[17] Mr Rawat agreed he spoke on a mobile phone for about two minutes whilst he was driving on the day of the incident, before he pulled the bus over. He agreed it was an offence and a mistake.
[18] Under further questioning he stated that when the police arrived at the scene of the incident he was initially not sure whether he applied the park brake when he parked the bus. He stated he didn’t want to get Westbus into trouble.
[19] During the cross examination of Mr Rawat the CCTV footage of the incident was replayed. It was put to Mr Rawat that he did not pull down and engage the park brake when he stopped at 12.02pm but did so after he removed the bus from the house and reparked it on the street at 12.12pm:
“....This is when you're moving the bus away from the house and you park it on Bennett Road, so 33 seconds here I would like you to watch what you do. That's engaging the park brake, isn't it?---Yes.
That's what you did when you got back on the bus when the bus was in the fence at 12:08 which we just looked at before. That's not what you did when you parked the bus on Bennett Road when you went to your friend's house?---I'm not going to say much, I'm leaving it up to the judge please you decide it because you're more experienced than I do because it's not going to go anywhere what I said, what he said, please.
...[D]o you agree that that movement you just made there is engaging the park brake?---Because I have plenty of time this time, that time I had to go to the toilet and in previous if you go back where I stopped to first my friend's house the same quickly you not (indistinct) at that point, you're only (indistinct) because I've got plenty of time in doing so, so it's up to you whatever you decided from that point of view.” 3
[20] When asked in re-examination whether he could say with absolute certainty that he applied the hand brake before the bus ran away Mr Rawat replied, “yes he did”.
[21] It was the uncontested evidence of Mr Davies, Assistant Depot Manager, that Mr Rawat did not report his finger injury until a week after the injury occurred. He spoke to him about it on 11 November and advised Mr Rawat to formally record the injury.
[22] Mr Davies states that Mr Rawat said his finger was sore but he was “...OK to carry on my shift this afternoon.” He did not indicate to Mr Davies that he was experiencing any problems driving on the day of the incident.
[23] The first witness for Westbus to be examined was Mr Bautovich, Supervisor. It was his evidence that Mr Rawat approached him on the morning of the incident and requested to see Mr Davies. He advised Mr Rawat he was not present on site at the time and to see him after the first half of the shift. Mr Bautovich states that Mr Rawat did not mention his finger injury, his health status or workers compensation.
[24] In cross examination Mr Bautovich stated he did not recall any conversation with Mr Rawat in which his state of health was raised. He stated that if a driver was ill they do not start their shift.
[25] Mr Horton is the St Marys Depot Manager. It was his evidence that Mr Rawat took an unauthorised deviation from his drop off point to the scene of the incident. He states Mr Rawat should have waited at the sports venue to pick up school students and return them to school, rather, he travelled to a friend’s place to use a toilet. Annexed to his statement was an extract from the Drivers Handbook titled “Route Diversion”.
[26] On 12 November, the day after the incident, he along with a supervisor met with Mr Rawat and his union delegate. He informed Mr Rawat that a runaway bus was a very serious issue and steps would be taken to determine the cause and ensure no repeat in future. He stated Mr Rawat could not provide consistent information on how the incident occurred.
[27] Mr Rawat raised the issue of the park brake being faulty so the meeting adjourned to inspect the bus, whereupon all four participants agreed the brake was working correctly.
[28] Mr Horton informed Mr Rawat and his delegate that a mechanical inspection of the park brake and braking system had been conducted the previous day after the incident. The report was shown to Mr Rawat and his delegate. The report was appended to Mr Horton’s statement and records the braking system was functioning as normal.
[29] Mr Horton then advised Mr Rawat that, in his opinion, the CCTV footage from the bus showed that he put his hand near the park brake when he stopped in Bennett Road, but he did not actually pull the park brake on; and he engaged the “rear door interlock” by leaving the bus via the rear door. This method is not designed to hold the bus for any length of time and was contrary to company policy.
[30] Mr Rawat was then suspended on full pay pending finalisation of the investigation.
[31] On 15 November Mr Horton requested Mr Rawat and his delegate attend a further meeting. At this meeting Mr Rawat was advised the investigation had been completed and no mitigating factors had been found as to why the park brake had not been applied.
[32] At this time Mr Horton also referred to a notice to all drivers which was issued on 17 October regarding runaway bus incidents and the importance of applying the park brake.
[33] It was Mr Horton’s evidence that he then advised Mr Rawat that the 11 November incident was sufficiently serious to warrant the termination. Mr Rawat then raised the issue of his injured finger and claimed he should not have been at work on the day rather on workers compensation leave.
[34] In his statement Mr Horton said:
““Hashim, when we reviewed the video footage, there does not appear to be any signs of you being in pain. How did you injure your finger?”
Mr Rawat said:
“I was putting my cash box up into the destination tray and I jammed my finger in between the cash box and the edge of the tray.”
I said:
“Why didn’t you report this earlier?”
Mr Rawat said:
“Because I didn’t want to go on workers compensation.”
I then said:
“You will need to complete the paperwork and report this injury.”
I then escorted Mr Rawat to Mr Davies’s office so that Mr Rawat could complete the necessary workers compensation paperwork with Mr Davies.”
[35] Mr Horton’s statement went on to give a history of previous incidents of runaway buses and the response by Westbus to each incident including termination of employment where the driver was found to be at fault.
[36] In cross examination Mr Horton agreed the reason for termination was not related to Mr Rawat diverting from his route on 11 November.
[37] In response to questions about company policy Mr Horton stated that in the event there were no extenuating circumstances involving a runaway bus the driver would be terminated. “So making a mistake is an extenuating circumstance?---I don’t believe so, I don’t believe that a nine tonne bus running down the road out the front of a public school with no driver in it is a minor issue.” 4
Submissions
[38] Both parties presented oral submissions and relied on the evidence and witness statements. Final written submissions were filed after the hearing and I have paid regard to them in arriving at my decision.
[39] As Mr Rawat’s conduct is the reason given by Westbus for the termination, I have to determine for myself whether the conduct occurred and, if so, whether it amounted to a valid reason for termination of employment. In this regard I respectfully agree with the following observations of the Full Bench in King v Freshmore (Vic) Pty Ltd 5:
“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[40] In Container Terminals Australia Limited v Toby 6, a Full Bench of the Australian Industrial Relations Commission said: “In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable…”7
[41] Northrop J in Selvachandran v Peteron Plastics Pty Ltd 8 said:
“In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. 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, ….”
[42] In Qantas Airways Ltd v Cornwall 9, the Full Court of the Federal Court said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
[43] In Edwards v Justice Giudice 10, Moore J said:
“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”
[44] Section 387 of the Act states that:
“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.”
[45] Having regard to the evidence and submissions and viewing the CCTV record of the incident I have concluded that Mr Rawat did not engage the park brake when he first parked the bus on Bennett Road, Colyton, on 11 November 2010. The CCTV footage shows that Mr Rawat put his hand over the park brake handle but did not engage it.
[46] I do not accept that his injured finger was in any way a mitigating factor. The CCTV footage showed Mr Rawat driving the bus on the day with his injured hand whilst holding a mobile phone to his ear with the other. The evidence of Mr Davies supports my opinion that Mr Rawat was not experiencing any physical impairment in driving the bus.
[47] I am satisfied on all of the evidence and material that the conduct of Mr Rawat was a serious breach of Westbus safety policies and procedures. In failing to follow the correct procedures Mr Rawat placed others at serious risk of injury and harm. I find there was a valid reason for the termination.
[48] Mr Rawat was notified of the reason for termination at a meeting on 15 November. A formal notice of termination was also provided on this day.
[49] Mr Rawat was given opportunities to respond to the concerns of Westbus on 11, 12 and 15 November. In accordance with Westbus policy he was also advised of an internal appeal process which he accessed.
[50] At all times, except 11 November, Mr Rawat was accompanied by his site union delegate during meetings.
[51] I have had regard to the remaining provisions of s.387 including other relevant matters. Mr Rawat had a good driving and employment record up until this incident and I am aware of the personal hardship his termination has caused.
[52] The nature of the incident, however, is not one where I can grade it according to a scale of degree of seriousness. Westbus has a zero tolerance policy to runaway bus incidents where a driver is found to be at fault. Given the industry in which it is engaged such a policy is clearly in the public interest and essential to maintain confidence in the public transport system.
[53] I have found above that Westbus had a valid reason to terminate. The process and procedures adopted by them in giving effect to the termination were fair and consistent with its policies and precedents.
[54] I find that the termination of Mr Rawat was not harsh, unjust or unreasonable. The application is therefore dismissed.
COMMISSIONER
Appearances:
S Bull, Transport Workers’ Union of Australia, New South Wales Branch for Mr Hashim Rawat
R Marshall, FCB Workplace Law for Westbus Region 1 Pty Ltd
Hearing details:
2011.
Sydney:
May 5 and 6.
Final written submissions:
16 May 2011.
1 Exhibit B1 Annexure E
2 Ibid. PN27-33.
3 Transcript PN249-251.
4 Ibid. PN586.
5 Print S4213, 17 March 2000.
6 Print S8434, 24 July 2000.
7 Ibid at PN 15.
8 (1995) 62 IR 371 at 373.
9 [1998] FCA 865.
10 [1999] FCA 1836.
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