Mr Alvin Jorgensen v Knight Bus Services

[2016] FWC 5005

[2016] FWC 5005

The attached document replaces the document previously issued with the above code on 23 August 2016.

Amendment to the name of the applicant in paragraph [2].

Brendan Pearce

Associate to Senior Deputy President Richards

Dated24 August 2016.

[2016] FWC 5005

FAIR WORK COMMISSION

DECISION

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

Mr Alvin Jorgensen
v
Knight Bus Services
(U2016/6735)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 23 AUGUST 2016

Summary: unfair dismissal – application of Small Business Fair Dismissal Code – whether investigation necessary to find a reasonable state of belief – contrary findings of the Commission – whether sound basis for reasonable belief.

[1] This decision concerns an Application by Mr Alvin John Jorgensen under s.394 of the Fair Work Act 2009 (“the Act”). Mr Jorgensen is seeking an unfair dismissal remedy in relation to his dismissal as a school bus driver by Knight Bus Services Pty Ltd (“the employer”) which was a role he performed from 25 January 2014 until the date of his dismissal on 27 April 2016. It is relevant for the foregoing to state at the outset that Mr Jorgensen is 77 years of age.

[2] Before considering the merits as to whether Mr Jorgensen’s dismissal was harsh, unjust or unreasonable, I am obliged under s.396 of the Act to consider whether the Small Business Fair Dismissal Code has application in the circumstances. However, it is useful initially to set out the competing factual matrices as pressed by the respective parties.

[3] Mr Jorgensen’s initial written statement in support of his application focused exclusively on the single incident in relation to his attendance at a medical assessment in Brisbane on 18 April 2016. Mr Jorgensen claims that he attended the specialist appointment at that time, following the request of his local medical practitioner, on the basis that he had experienced shortness of breath under exertion. Mr Jorgensen claims during the course of his examination with the specialist in Brisbane, the specialist had identified that he would require a stent procedure. The procedure was then carried out without notice.

[4] Mr Jorgensen claims that Mr Knight contacted him the day of the procedure when he was in recovery. Mr Jorgensen claimed that he informed Mr Knight at that time that he would be home on 20 April 2016 and would consult his local medical practitioner about returning to work.

[5] Following consultation with his local medical practitioner, Mr Jorgensen was informed that he could not resume school bus driving duties for at least a four week period, because of the requirements of the Queensland Department of Transport and Main Roads.

[6] Mr Jorgensen claimed that he had some communication with Mr Knight on 21 April 2016, where there was a discussion about obtaining a substitute driver. At that time, Mr Jorgensen claims Mr Knight made no reference to dismissing him. Mr Knight did not dismiss Mr Jorgensen until 27 April 2016. Mr Jorgensen claimed that it was only at this discussion that he was informed that there had been an audit of the business, owing to his prior conduct (the nature of which was unstated in his initial written statement), and was not aware of any complaint regarding misidentification of a student (a matter which is set out further below).

[7] Mr Jorgensen claims that he was never warned over the course of his employment about any issues with his performance or conduct as a school bus driver, and was considered to have been a loyal and conscientious employee for the duration of his employment.

[8] Consequently, Mr Jorgensen considers his dismissal to have been unfair.

[9] The employer’s evidentiary case sets out a wider factual matrix.

[10] The directors of the employer’s business are Mr Stanley Gordon Knight and Ms Patricia Anne Knight, both of Emerald. Mr and Mrs Knight gave evidence that at the start of the school term in 2016, Mr Jorgensen had been expressly asked as to whether he had his driver authorisation in order.

[11] A driver authorisation is a requirement of the Department of Transport and Main Roads for an employee engaged in the provision of scheduled school bus services (amongst other passenger transport services). Mr Jorgensen is 75 years of age or more, and requires a driver authorisation, to be renewed annually on the basis of obtaining a relevant medical certificate or medical clearance from a medical practitioner. I set out further below the department specific requirements for driver authorisations.

[12] The driver authorisation is also conditional upon other criteria being satisfied.

[13] Upon the approach made by Mr Knight, as referred to above, Mr Jorgensen was said to have indicated to his employer that his driver authorisation was in order.

[14] However, several days after commencing to drive the school bus (which appears to have been on or about 19 February 2016), Mr Jorgensen contacted Mr Knight and advised him that “they have caught me without a DA”.

[15] That is to say, the Department of Transport and Main Roads had stopped Mr Jorgensen and found that his driver authorisation was not current.

[16] The employer’s business, it was said, was then subject to a Department of Transport and Main Roads audit, as a consequence of the identified deficiency on the part of one of its drivers, Mr Jorgensen. The employer was threatened with a fine as a further consequence.

[17] Mr Jorgensen did not accept that there was any responsibility on his own particular part, for the failure to keep his driver authorisation current. Instead he argued that:

“the lady [at the Department of Transport] had said there was an oversight by all parties in [that] the correct box had not been ticked correctly when licence was renewed in late 2015 […].”

[18] Mr Jorgensen also held that he was informed by staff at the Department of Transport that any subsequent audit of his employer’s business was unrelated to his having been “pulled over by the transport inspectors”.

[19] Mr Jorgensen claimed that he had assumed that he “was under the impression that there was current and valid as my driver’s licence was current and valid in as such any authorisations or conditions applied to driver’s licenses would\should also be valid within the dates of the current driver’s licence.”

[20] That said, Mr Jorgensen also stated as follows:

“I agree I was stopped by Queensland Transport whilst in control of a bus and they asked to cite my license and driver authorisation. It was at this point that it was noted that my driver authorisation was not current. I was also informed by the offices that I would need to park up the bus have the matter sorted out at the transport department and until sorted would not be allowed to carry any passengers but would be able to drive bus to where I would normally have it park during the day.”

[21] Mr Jorgensen went on to explain that he:

“[…] then attended Transport Department to rectify the driver authorisation and find out why it had not been carried through with my driver’s license. Doing my conversation with customer service lady at transport department it was stated that there had been a mistake\oversight on their part as well as mine when I renewed my driver’s license in 2015 and that the box where additional authorisations\conditions had not been ticked, subsequently Department of Transport had my driver authorisation confirmed and reinstated within a couple of hours.” (sic)

[22] Mr Jorgensen’s employer complained that there was a further incident subsequently, when Mr Jorgensen complained about a number of students’ bad language on the bus. Correspondence was sent home to the parents of the students alerting them to their children’s conduct. The letter was sent home to a particular student, who suffered from a disability and had been wrongly accused of misconduct by Mr Jorgensen. The employer contended that the accused family was indignant and concerned about the employer’s professionalism in misidentifying their son.

[23] Mr Jorgensen contended, in response to these claims, that there had been a mix up in the letters handed out regarding particular students and that he was not in error.

[24] Subsequently a further incident occurred. Mr Jorgensen was said to have requested three days off work to go to Brisbane for a medical check-up, and that he would return to work that week. Mr Knight recalled the conversation vividly for reason that he was unhappy at having to drive the bus himself during that period of time, as he feels uncomfortable doing so at his age – 75 years.

[25] Mr Knight became aware through another bus driver, however, that Mr Jorgensen was having a stent inserted into his heart. Mr Knight became aware that following such a procedure, the Department of Transport and Main Roads prohibited the person – so Mr Knight claimed – from driving for one month. Mr Jorgensen had not informed Mr Knight, so Mr Knight claimed that he was undergoing any medical procedure at all or that his ability or fight to drive a bus would be affected.

[26] Upon being so informed, Mr Knight contacted Mr Jorgensen whilst he was in Brisbane and questioned him about his medical status. Mr Knight claimed that it was only then, that Mr Jorgensen confirmed that he was having an operation. Mr Jorgensen claimed to Mr Knight, so Mr Knight contended, that his medical practitioner would overturn any requirement by the Department in relation to his fitness for work, thus enabling him to drive the bus without undue delay.

[27] Mr Jorgensen, for his part, held that he was unaware that he was to have a stent placed in his heart, until such time as the consultation with his medical practitioner. That is, it was not until such time as he had had his initial consultation and had undertaking and angiogram, that he was aware that he was going to undergo a surgical procedure involving his heart. Mr Jorgensen claimed that the medical practitioner identified the large blockage in his heart artery and “the doctor then stated that they could insert a stent basically there and then.”

[28] Mr Jorgensen therefore resisted the claim by his employer that another employee had foreknowledge about the heart procedure he underwent.

[29] Mr Knight claimed that he was wary about Mr Jorgensen’s assertion that his medical practitioner would be able to have the one month disqualification from driving waived or curtailed given his previous experience, and requested that Mr Jorgensen present a medical certificate before resuming work. Mr Knight therefore contacted Mr Jorgensen a few days later and asked him if he had obtained a medical clearance or certificate. Mr Jorgensen explained at this time that he would be unable to drive for one month. Mr Knight thereafter set about sourcing a supplementary driver to cover Mr Jorgensen’s route in his absence.

[30] Mr Knight was of the belief that Mr Jorgensen had been unwilling to disclose at his own initiative, any information about his medical conditions and the implications for his capacity to perform his role as a school bus driver safely.

[31] Mr Knight formed the view that Mr Jorgensen could not be trusted to perform his role safely and lost respect for him. As a consequence, Mr Knight claimed that he subsequently informed Mr Jorgensen - upon Mr Jorgensen presenting at work - that he no longer had a position for him, and cited the above three incidents, stating that, “I have had enough.”

[32] Having set out the competing factual matrices, I now turn to consider the Small Business Fair Dismissal Code (hereafter referred to as the “Fair Dismissal Code”).

Requirement of the Department of Transport and Main Roads

[33] For purposes of better understanding the obligations and duties of drivers of scheduled services, such as Mr Jorgensen, I have compiled the following summary of the various relevant requirements from the Queensland Department of Transport and Main Roads website.

[34] There is a duty on a person over 75 years of age, and who holds a current drivers licence, to carry a current medical certificate “at all times”:

“Everyone 75 and over who holds a Queensland driver licence must carry a current Medical certificate for motor vehicle driver form (F3712) at all times when driving and comply with any stated conditions—you can be fined if you don't.”

[35] A valid driver’s license is a precondition to a Queensland driver authorisation being issued to an applicant:

“A driver authorisation is a qualification you must have to operate a public passenger transport service.

You must also hold a current driver licence for the class of vehicle being driven.”

[36] The Department requires a driver authorisation for drivers in various commercial contexts (such as scheduled services drivers - school bus drivers) for particular purposes:

“The purpose of a driver authorisation is to ensure the driver is a suitable person to operate the vehicle, with regard to:

• The safety of children and other vulnerable members of the community
• the personal safety of the public, passengers, and their property
• the act of driving in capability to safely operate the vehicle
• the reputation of public passenger transport
• conducting themselves responsibly with passengers and the public
• being aware of their customer service responsibilities
• being held accountable for complying with appropriate standards.”

[37] A driver authorisation is subject to certain medical conditions.

[38] To obtain a Queensland issued driver authorisation for a driver of passenger vehicles must provide a current medical certificate issued for a commercial vehicle driver. When presented to the Department (no longer than six months after the medical assessment ) the medical certificate remains current for up to 5 years from the date of its issuance by the medical practitioner, subject to no future medical events requiring notification (see below).

[39] However, the Department further states that:

“Once an authorised passenger transport driver turned 75 years of age, the driver is required to submit a medical certificate for a motor vehicle driver to [the Department] on an annual basis.”

[40] The Department also advises that:

“Driver authorisation holders must notify the department if there is any change in their medical fitness that makes them continuously unfit to safely operate a vehicle for more than one month.”

Relevance of Small Business Fair Dismissal Code – s.388 of the Act

[41] Earlier, I referred to the obligations of the Commission under s.396 of the Act to consider the Small Business Fair Dismissal Code before dealing with the substantive matter. I now turn to that task.

[42] The Fair Dismissal Code declared by the Minister under s.388(1) of the Act is set out below.

Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair, it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.

Procedural matters

During discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include “a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[43] An employer seeking the defence of the Fair Dismissal Code must be a small business for purposes of section 23 of the act. Section 23 of the Act defines a small business as being a national system employer which at the particular time employees fewer than 15 employees. The particular time is taken to be a reference to the time or date on which the dismissal takes effect.

[44] Section 23 of the Act sets out the method of calculating the number of employees and the necessity to include employees employed by the employer in any associated entities. It is not necessary in this particular case for me to give consideration to the method of calculation of the employees or the proper characterisation of their employment. This is because the employer presented payroll data from its combined business interests which demonstrated to my satisfaction that it employed at most 14 employees. Given this circumstance, it is not necessary for me to investigate further the particular modes of employment in each case and whether, for example, any casual employees were casual employees who had been employed on a regular and systematic basis (for the purposes of section 23 (2)(b) of the Act).

[45] I add at this point that Mr Jorgensen claimed that there were two other persons who should be taken to be employees. One of these was a person who “maintains and reads bus cameras” and the other was the “bookkeeper”. On what was put to me, it appears that these two functions were performed by persons on the basis of a contract for service, rather than a contract of service.

[46] The employer is a small business for purposes of section 23 of the Act, and therefore it has access to the defence under section 388 of the act, being the Fair Dismissal Code.

[47] I now turn to consider whether the employer complied with the Fair Dismissal Code.

[48] The relevant Commission authorisation in respect of the operation of the summary dismissal provisions of the Fair Dismissal Code are dealt with in the Full Bench decision in John Pinawin T/A Rose Vi Hair Face Body v Mr Edwin Domingo [2012] FWAFB 1359 (Re Pinawin). In that decision, the Full Bench commented as follows:

“[29] […] There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.

[31] The question we need to consider in this case is whether Mr and Mrs Pinawin believed on reasonable grounds that Mr Domingo’s conduct was sufficiently serious to justify immediate dismissal.” [My emphasis]

[49] It is evident to me that Mr Knight held a belief that the conduct of Mr Jorgensen, in not honestly disclosing the status of his driver authorisation and the precise nature of his medical circumstances, presented a genuine issue of trust, which is a particularly salient concern in the context of Mr Jorgensen’s duties as a school bus driver. Thus Mr Knight held a belief that Mr Jorgensen’s conduct was sufficiently serious to justify immediate dismissal before such time as he was to perform any further driving duties.

[50] Having so concluded, I now turn to consider whether Mr Knight’s belief was based on reasonable grounds.

[51] The Full Bench cited above makes reference to the concept of the employer carrying out a reasonable investigation into the relevant matter.

[52] I do not take such a formulation to present a proposition that it is mandatory for employer under the Fair Dismissal Code to carry out an investigation with any formality or formal structure, or to instigate a demonstrably active enquiry of some form.

[53] The Fair Dismissal Code makes no reference to a reasonable investigation as being the exclusive means by which an employer may reach a reasonable state of belief. The Fair Dismissal Code is non-prescriptive as to the means by which an employer will reach a reasonable state of belief.

[54] A reasonable state of belief may be based on an investigation of some scope or scale (contingent on the relevant circumstances, such as the resources of the small business), where the conduct in question fell beyond the employer’s observation or direct knowledge. On other occasions, however, an employer may reach a reasonable state of belief on the basis of other reasonable sources of knowledge, information and understanding, such as direct observation, dependable information from a third party, knowledge derived from experience and personal interactions. A reasonable state of belief also may arise from a properly founded inference.

[55] Indeed, the Full Bench in Re Pinawin itself concerned a case in which no investigation was carried out by the employer, and the reasonable state of belief was derived from other indirect sources of information and knowledge:

“[37] Mr and Mrs Pinawin were concerned about the impact of Mr Domingo’s drug taking on their business. They had experienced problems of reliability as Mr Domingo had the responsibility for opening the salon on time. They were also conscious of occupational health and safety implications of his erratic behaviour. They did not however raise these matters with Mr Domingo as part of their consideration of their response.

[38] Normally in order to hold a belief on reasonable grounds it will be necessary to have a discussion with the employee about the perceived serious misconduct and pay regard to the explanations and views given by the employee. We are concerned in this case that no discussions took place about the implications of Mr Domingo’s conduct for his future employment. However this is a very unusual case. The employer was very small. The owners knew Mr Domingo well. They directly observed his behaviour. They believed that he had made lifestyle choices that involved drug-taking and this directly related to his capacity to perform his work. His work involved close personal dealings with clients. At the time they made their decision, Mr Domingo was hospitalised. They were conscientious in considering the grounds for summary dismissal in regulatory material available on the internet. In these unusual circumstances we are of the view that the employer, when considering Mr Domingo’s recent erratic and unusual behaviour, formed the belief that Mr Domingo had engaged in conduct that justified immediate dismissal on reasonable grounds. Our conclusion should not be seen as one that would necessarily be reached in all cases of out of hours misconduct or drug-taking.”

[56] A second Full Bench [2016] FWCFB 144 was presented with a submission that an investigation was inadequately executed for the purposes of reaching the requisite state of reasonable belief. The Full Bench held ultimately that the employer’s belief was on reasonable grounds despite the absence of any extended or additional investigation:

“[17] We agree with the submissions of the employer that having formed this view there is no significance in the failure of Mr Lloyd to undertake an additional investigation. The enquiries he made, the final trigger of written communications by Ms Suttie and the reliance he placed on matters within his direct knowledge establish that Mr Lloyd’s belief was on reasonable grounds. This is the test for the purposes of the Code. We do not consider that previous authorities establish any different test.”

[57] It follows that decisions of the Commission which have concluded that an investigation is a necessary condition for an employer to reach a reasonable state of belief should be approached with caution, as they misapply the relevant authorities (see for example Hamberger SDP [2015] FWC 6422 PN 26).

[58] The meaning of the scope of conduct which constitutes grounds for a summary dismissal for the purposes of the Fair Dismissal Code is discussed in the Full Bench decision in Ryman v Thrash Pty Ltd (2015) FWCFB 5264. The source of the definition of summary dismissal is in Regulation 1.07 of the Fair Work Regulations 2009, which provides as follows:

1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(1) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(a) the employee being intoxicated at work;

(b) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(1) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.

(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”

[1] It is apparent to me that Mr Jorgensen’s conduct warranted summary dismissal for reasons that it fell into the definition of sub regulation (2)(b)(i) above.

Conclusion

[2] The employer’s business was a small business for purposes of section 23 of the Act and the employer availed itself of the defence under the Fair Dismissal Code, “Summary Dismissals” provisions.

[3] Reasonable minds might differ as to what grounds might constitute a reasonable basis for reaching the required state of belief. Here, Mr Knight faced three sets of circumstances:

1. Mr Jorgensen drove without his driver authorisation for a period of time between December 2015 and February 2016 before such time as he was pulled over by the police; Queensland Transport

2. Mr Jorgensen was said to have confused the identity of a particular student causing some measure of corporate embarrassment to Mr Knight’s business; and

3. Mr Jorgensen underwent an angiogram in a Brisbane hospital regarding a heart condition without fully disclosing his circumstances to Mr Knight.

[4] I do not consider the second of the circumstances above to constitute a reasonable ground to dismiss Mr Jorgensen for serious misconduct. The alleged error was never made out, was challenged by Mr Jorgensen, and in any event, did not in its own right constitute an error of judgement or observation that was so serious as to warrant or contribute to a dismissal.

[5] The circumstances of the first conduct issue above, however, is of concern. I do not doubt Mr Jorgensen’s claims that he sought to renew his driver authorisation in December 2015. However, he had not received his renewed driver authorisation at the time he vouched to Mr Knight, upon Mr Knight’s express request that his authorisation was in good order. Further, Mr Jorgensen continued to drive the school bus in February 2016, without having received his updated or renewed driver authorisation. In all likelihood, he would have continued to drive without the renewed driver authorisation, had he not been pulled over by the police and required to attend the matter promptly.

[6] Mr Jorgensen did not display any contrition of his conduct in this regard and merely regarded himself, in essence, has having been the victim, some measure, of an administrative error on the part of the Department of Transport. I think Mr Jorgensen’s willingness to drive without having received his driver authorisation, exposed a disregard on his part for the administrative regime governing drivers in the commercial industry, and the serious safety issues underpinning that regime. By the time he was pulled over by the Police, he had been without an updated driver authorisation for two months or more, and had never indicated to his employer that there was a deficiency in his authorisation.

[7] Whilst I do not consider that Mr Jorgensen’s conduct amounted to dismissible behaviour in the circumstances (given that there are sound reasons to believe that Mr Jorgensen had taken steps in good faith to renew his driver authorisation), he nonetheless displayed a willingness to knowingly mislead his employer about the precise status of his authorisation to drive, and performed his duties as a school bus driver in the absence of having received his authorisation. These matters caused his employer genuine concern, and I will return to the implications of this further below.

[8] As to the third matter in the circumstances referred to above, having heard the evidence in this matter, I am satisfied that Mr Jorgensen acted so as to not disclose to his employer the particulars of his medical condition for fear, presumably, of bringing his position into jeopardy. Mr Jorgensen was suffering from shortness of breath and was referred by his GP to a cardiologist in Brisbane for angiogram. This was a procedure that would require three days of hospitalisation.

[9] When Mr Jorgensen requested leave, he did so, on the basis of attending a medical check-up in Brisbane and Mr Knight thought no more of the matter - presuming it to be a regular “check-up” of some form, with no particular significance.

[10] Mr Knight was therefore distressed to discover that Mr Jorgensen had attended a hospital for a three day procedure, in the course of which, he had a stent placed in an artery and would not be available for work for a further month.

[11] I do not consider that Mr Jorgensen had any foreknowledge of the intention to insert a stent into an artery; that appears to have been a proposal acted upon by his cardiologist at the time of the angiogram’s results becoming known. It cannot be said that Mr Jorgensen concealed from his employer his intention to undergo that particular medical procedure.

[12] In a context where employees are required to drive school buses and where there are administrative obligations to ensure drivers are fully fit to discharge such public interest duties, it may have been reasonable for Mr Jorgensen to have signalled the nature of his condition with somewhat more detail than he did. Mr Knight was generally concerned by the fact, that whilst he assumed on Mr Jorgensen’s advice that Mr Jorgensen was attending a “medical check-up”, something of more pointed purpose was intended, which had potential implications for the business.

[13] That said, whilst Mr Jorgensen did not take Mr Knight into his confidence, I do not think there was any intention on Mr Jorgensen’s part to attempt to drive whilst unfit, as Mr Knight alleged. Simply, there was no foundation whatsoever, to Mr Knight’s presumption that but for his request that Mr Jorgensen provide a medical certificate before returning to work, that Mr Jorgensen would not have done so as a matter of routine himself.

[14] An important issue of public and personal safety is a ground for a summary dismissal under regulation 1.07 of the Fair Work Act Regulations 2009. Such a consideration would constitute serious misconduct for purposes of the Small Business Fair Dismissal Code. However, I cannot on what is before me, conclude that an issue of this kind was reasonably apprehended by Mr Knight on the basis of Mr Jorgensen’s conduct.

[15] There were elements of Mr Jorgensen’s conduct which were regrettable, but his behaviour did not provide grounds on which Mr Knight could reasonably presume, and to which I return below, that Mr Jorgensen had committed acts of serious misconduct, in some manner giving rise to an imminent public or personal safety risk.

[16] Because I have so found, the Small Business Fair Dismissal Code’s summary dismissal provisions do not have application in the current case.

[17] Equally so, the employer has led no evidence of any kind that it is satisfied the “other dismissals” provision of the Fair Dismissals Code.

[18] Because of these findings, the application is now to be considered under section 387 of the Act.

Was the termination of employment harsh, unjust or unreasonable?

[19] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following criteria, all of which arise under s.387 of the Act.

[20] Section 387 of the Act provides as follows:

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 followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Consideration

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)

[21] For the reasons I have given above, I do not consider there to have been a valid reason for Mr Jorgensen’s dismissal. As I have set out above, there were aspects of Mr Jorgensen’s conduct which are questionable, but these do not amount, on their own or taken together, to a sound or defensible reason for Mr Jorgensen’s dismissal.

[22] Of course, insofar as I have concluded above that there was no reasonable basis for Mr Knight to have reached a reasonable belief that Mr Jorgensen’s conduct represented serious misconduct, it would follow logically that on an objective basis, there can be no valid reason for his dismissal either.

Whether the person was notified of that reason

[23] As there was no valid reason for the dismissal there can have been no notification of that reason in advance of the communication of the decision to dismiss. In any event, Mr Jorgensen did not receive any advance indication of the reasons for his dismissal prior to the decision to dismiss having been reached and communicated to him.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[24] Mr Jorgensen was not given an opportunity to respond to the reasons for his dismissal insofar as is related to his conduct.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[25] Mr Jorgensen was not provided an opportunity to have a support person present for reasons that there were no prior discussions as such, relating to the dismissal. Thus there can have been no unreasonable refusal by Mr Knight to allow Mr Jorgensen to have a support person representing.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[26] Mr Jorgensen’s dismissal was related to one issue regarding the performance of his duties; his alleged misidentification of a disruptive student bus rider, which was said to have caused embarrassment to his employer.

[27] Insofar as this matter formed part of the decision making of the employer, Mr Jorgensen was not warned about his conduct in this regard.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[28] The employer’s business is a small business and is managed directly by Mr and Mrs Knight, whose principal business appears to concern running a family farm. A reasonable inference arises that the size of the enterprise impacted on the procedures followed in effecting Mr Jorgensen’s dismissal.

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

[29] The employer’s enterprise was a small undertaking that was conducted on intimate terms by Mr and Mrs Knight alone. There were no Human Resource Manager specialists or expertise available to Mr and Mrs Knight. The absence of such expertise reasonably would have impacted significantly on the procedures followed in effecting Mr Jorgensen’s dismissal.

Any other matters that the FWC considers relevant

[30] There are no other matters that I consider to be relevant to the proceedings other than those dealt with above.

Conclusion

[31] On balance, whilst I have concerns with some aspects of Mr Jorgensen’s conduct, and have taken into consideration the un-resourced and small nature of his employer’s undertaking, I nonetheless consider that his dismissal was harsh, unjust or unreasonable.

[32] Having so found, I now need to determine - in accordance with s.390(3)(b) of the Act - whether an order for payment of compensation is appropriate in all the circumstances of the case.

Remedy

[33] Both Mr Jorgensen and his employer held a common view, expressed at the hearing, that reinstatement or reemployment to an alternate position, was an unsustainable proposition. Because such an outcome would prove to be unproductive, I consider it would be inappropriate for me to act contrary to the consent position of the parties.

[34] I do note that some days after the hearing, a written submission was made to the effect that Mr Jorgensen “was initially hoping to be reinstated” and that he had “loved his job” and “would have continued to work through until the end of this school year”, at least.

[35] I do not take this communication to change the position put to me at the hearing. The submission seems to reflect a state of mind that existed at an earlier point in time.

[36] Section 392 of the Act provides as follows:

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise

(b) the length of the person’s service with the employer

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

[37] Section 390(3)(b) of the Act serves as a prerequisite to the exercise of the conditioned discretion, to determine the quantum of compensation that an employer must pay to the person, in lieu of reinstatement. The prerequisite to the exercise of that discretion is that the Commission reaches a state of satisfaction that an order for compensation is appropriate, in all the circumstances of the case.

[38] The Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge [2013] FWCFB 431(“Ottrey”) held that this state of satisfaction could only be arrived at by considering all the circumstances of the case, and this meant that the range of matters set out a s.392(3) of the Act needed to be considered (though it will be noted that the Full Bench included ultimately in its decision, the additional consideration of s.393 of the Act):

“It is further apparent that a FWC decision to order the payment of compensation to a person is also a discretionary decision, but is only exercisable if, amongst other things, the FWC is satisfied reinstatement of the person is inappropriate and the FWC considers a compensation order is appropriate in all the circumstances of the case.

[…]

[40] As to whether an order for the payment of compensation by Ottrey to Ms Bowden is appropriate in all the circumstances of the case, we note that the phrase “all the circumstances of the case” in s.390(3)(b) of the FW Act is also contained in s.392(2). However, in s.392(2) the phrase is followed by a reference to the matters in ss.392(2)(a) to (g) and s.392(2)(g) concerns “any other matter that the FWC considers relevant.” In this case, we think the matters in ss.392(2)(a) to (g) embrace all the circumstances of the case relevant to our consideration of whether a compensation order is appropriate. In Henderson v Department of Defence it was recognised that the same matters may serve different purposes in s.170CH of the WR Act, as it was prior to the Work Choices amendments. A Full Bench of the AIRC said:

‘[20] It is correct that, if the Commission decides to order an amount in lieu of reinstatement, regard would have to be had to the same matters for the purpose of determining the amount to be ordered. But that involves having regard to these matters for a different purpose. In s.170CH(2) the purpose of the inquiry is to ascertain which remedy or remedies, if any, are appropriate. In s.170CH(7) the purpose of the inquiry is to ascertain the amount to be awarded in lieu of reinstatement. If it were otherwise s.170CH(7) would be redundant.’

[41] We turn then to the matters for the purpose of considering whether an order for the payment of compensation by Ottrey to Ms Bowden is appropriate in all the circumstances of the case.

[42] There is no sound basis to conclude an order for the payment of compensation would affect the viability of Ottrey’s enterprise. The effect of such an order on Ottrey’s viability does not militate against such an order. Ms Bowden’s length of service with Ottrey was some four years. This is a period supporting such an order. The remuneration Ms Bowden received, or would have been likely to receive, if she had not been dismissed and her mitigation efforts at Yooralla and in her small business support an order for the payment of compensation. We concur with the Commissioner that Ms Bowden would have worked for Ottrey for at least another six months but for her dismissal. The amount of remuneration earned by her from employment or other work and the income reasonably likely to be so earned by her are not such as to militate against such an order. The matter of contingencies does not militate against such an order in this case, particularly given the period she would have worked for Ottrey but for her dismissal has long passed. However, the misconduct of Ms Bowden that contributed to Ottrey’s decision to dismiss her, as set out in the Commissioner’s first decision, does go against an order for the payment of compensation. There are no other matters that we consider are relevant to the circumstances of the case for the purpose of considering whether a compensation order is appropriate.

[43] In our view, the matters supporting an order for the payment of compensation outweigh that going against such an order, leading us to consider that an order for the payment of compensation by Ottrey to Ms Bowden is appropriate in all the circumstances of the case.”

Consideration

[39] I proceed below to consider both the discretionary consideration (whether to make an Order) and the amount to be ordered in compensation. It is apparent, on my consideration that an Order is warranted in the circumstances and compensation must be paid. My reasons for reaching these conclusions follow.

The effect of the order on the viability of the employer’s enterprise

[40] Mrs Knight led in her evidence, which went unchallenged, that the business would be affected detrimentally by an Order for compensation of any significant amount.

[41] The effect of an Order for compensation would need to be taken into account but does not militate against such an order as such.

The length of the person’s service with the employer

[42] Mr Jorgensen was employed as a casual employee engaged on school runs for a period of time over two years with his employer.

[43] This is not an amount or a period of time that militates against making an Order for compensation.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[44] Having had the benefit of hearing the evidence in this matter, I do not consider that Mr Jorgensen was willing to work openly and with full disclosure to his employer, in the context of an undertaking in which there was a considerable public interest requirement.

[45] Further, Mr Jorgensen displayed an absence of serious regard for the administrative requirements relating to his position, by persisting in driving a school bus without being in physical possession of a driver authorisation. For all Mr Jorgensen knew, at the time he was driving without his driver authorisation, the Department may have found a defect in his application. Mr Jorgensen showed no contrition in respect of this oversight, or awareness of the importance of the policy purpose of driver authorisations, which suggest to me that further conduct of this kind might be repeated in the future.

[46] In my view, Mr Jorgensen would have remained an employee with the employer for a period of a further four months before such time as the relationship would have come to an end.

[47] The remuneration that Mr Jorgensen would have received is not such as to militate against the making of an Order for compensation.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[48] Mr Jorgensen is 77 years of age and has not managed to secure any further employment following his dismissal. He appears to have focused his attentions on these proceedings. I strongly doubt employment opportunities in Central Queensland would have been readily forthcoming for Mr Jorgensen.

[49] The failure to mitigate in the circumstances does not militate against making an Order for compensation.

[50] I do not intend to discount Mr Jorgensen’s compensation for reasons of failure to mitigate his losses.

The amount of remuneration earned by Mr Jorgensen from employment or other work since the dismissal and between the making of the order for compensation

[51] For the reasons given above, there has been no remuneration earned by Mr Jorgensen in this period. This is not a consideration which militates against making an order for compensation.

The amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[52] This is not relevant in the circumstances before me.

Any other matter that the FWC considers relevant

[53] There are no matters that I consider relevant.

Misconduct reduces amount

[54] I consider that Mr Jorgensen misconducted himself, in continuing to perform duties as a bus driver, during a period of time in which he did not physically possess a driver authorisation.

[55] Mr Jorgensen may well have been of the general belief that he had executed the administrative procedures necessary to obtain a further driver authorisation. However, he had not been in possession of that renewed driver authorisation at the time that he reassured his employer that his authorisation to drive was unconditional, and he performed his duties without being in possession of a renewed driver authorisation.

[56] I add that the Department of Transport obligations in this respect fall upon the driver in his or her personal capacity. That is, the driver personally is obliged to do and ensure certain things are done.

[57] Mr Jorgensen’s conduct in this regard caused genuine concern for Mr Knight, as he had been misled by Mr Jorgensen and the Department of Transport requirements had not been given proper and literal effect by Mr Jorgensen.

[58] As a consequence of Mr Jorgensen’s conduct in this regard, I deduct equivalent of four week’s pay from the amount that I would otherwise have Ordered in compensation.

Conclusion on remedy

[59] I have considered the circumstances and have concluded that I should make an Order for compensation, but subject to the terms set out in the following.

[60] Mr Jorgensen was paid $500.00 each week for his casual bus runs (which operated over standard school weeks and excluded school and public holidays).

[61] Allowing for the deduction of one month under s.387(3) of the Act, the three month period following the dismissal (which is the anticipated period of employment but for the dismissal) accounts for period 27 April 2016 – 27 July 2016.

[62] In the anticipated period of employment, there were 39 working days over which Mr Jorgensen could have earned income by completing his usual driving duties, taking account of his unavailability to work until 19 May 2016.

[63] Mr Jorgensen was paid $100.00 per day for each of his casual engagements.

[64] Mr Jorgensen would have earned but for his dismissal an amount of $3900.00 (gross) and subject to ordinary taxation.

[65] In view of my finding, an order to this effect requiring payment by the employer within 14 business days of the publication of the Order will be issued along with this decision.

Monetary orders may be in instalments

[66] The employer may apply for leave to discharge the amount ordered to pay by reasonably framed instalments. I make this clear for reasons that Ms Knight indicated in unchallenged evidence that the business may be affected detrimentally by an order for compensation of magnitude. The employer must make its application and provide a reasonable schedule of payments within 7 business days from the publication of this decision and the attendant Order.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Bishop for the applicant.

Mr Grant solicitor for the respondent.

Hearing details:

Tuesday, 16 August 2016 Brisbane (video conference to Emerald)

Printed by authorisation of the Commonwealth Government Printer

<Price code C, PR583282>