Mr Ken McMahon v Swan Transit Services (South) Pty Ltd
[2010] FWA 3220
•23 APRIL 2010
[2010] FWA 3220 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
Mr Ken McMahon
v
Swan Transit Services (South) Pty Ltd
(U2009/4389)
COMMISSIONER WILLIAMS | PERTH, 23 APRIL 2010 |
Termination of employment.
[1] Mr McMahon (the applicant) has lodged an unfair termination application pursuant to s. 643 of the Workplace Relations Act 1996. The respondent is his previous employer, Swan Transit Services (South) Pty Ltd (Swan). The matter was not resolved at conciliation and has been referred for arbitration.
Background
[2] The Applicant was employed by the Respondent as a bus driver. On 3 June 2009 the applicant was driving a Route 176 bus through Victoria Park a suburb of Perth. The Applicant stopped at a bus stop and some passengers boarded the bus. Some of the detail of what then occurred is in dispute however what is not disputed is that the last of the passengers to board the bus was a man who requested a concession fare. The Applicant requested to see proof of entitlement to the confessional fare. The man did not provide a concession card as was required and was advised by the Applicant that he could not be given a concession fare. The man alighted from the bus.
[3] A work colleague of the Applicant, Ms Iuliana Dinis was standing on the footpath next to the front door of the bus. As the applicant began to drive away he stopped the bus, opened the bus doors, got off the bus and assaulted the man who had requested the concession fare by taking hold of him, pushing him and hitting him in the head.
[4] The Applicant then boarded the bus and drove off.
[5] The Applicant reported this incident to his employer providing a written incident report including his explanation for his actions.
[6] The respondent conducted an investigation, interviewed a number of witnesses and on 4 June 2009 terminated the employment of the Applicant.
[7] The bus the applicant was driving has a number of closed circuit television (CCTV) cameras that show various views of the inside of the bus and indirectly some areas outside the bus through the buses windows and doors. The vision from these cameras is recorded. A DVD of the recordings for the relevant time was provided to the applicant’s representatives by the respondent prior to the proceedings, a copy of which is attachment WHS3 to Exhibit R1. These recordings were played as part of the evidence of Mr Smith and subject to detailed consideration by both parties.
The legislation
[8] Section 652(3) specifies, in determining whether a termination was harsh, unjust or unreasonable, what the Commission must have regard to as follows:
s. 652 Arbitration
(1) If:
(a) the Commission has issued a certificate under subsection 650(2) regarding conciliation of an application relating to a termination of employment; and
(b) the applicant has made an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable;
the Commission may so proceed to arbitrate the matter.
(2) Neither the making of an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 654.
(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.
Submissions
The applicant
[9] Throughout this decision I will refer to the man who was assaulted as Mr A.
[10] The Applicant submits that in all the circumstances the applicant used reasonable force necessary to prevent Mr A from committing an assault on another and in self defence and so ought not to have his employment terminated.
[11] The applicant submits that Culpeper v Intercontinental Ship Management Py Ltd 1sets out the applicable principles in the following passage:
“[19] Before turning to the first matter, we summarise the proper approach to be taken to a finding in respect of whether the termination based on misconduct was harsh, unjust or unreasonable:
• The Commission is obliged to make a finding as to whether or not there is a valid reason for the termination of the employment.(Edwards v Giudice, Moore J, 94 FCR 561)
• The reason must be "sound, defensible and well founded". (Selvachandran v Peteron Plastics Pty Ltd, Northrop J, 62 IR 371)
• The appellant carries the onus of establishing a valid reason.
• In a matter in which the termination is based on the conduct of the employee, the Commission must determine that the conduct took place. (Edwards v Giudice, Moore J, 94 FCR 561)
• In determining whether the alleged conduct took place and what it involved, the Commission must make a finding 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. (King v Freshmore, Ross VP, Williams SDP and Hingley C, Print S4213)
• It is not the Court's function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the Court but rather it is for the Court to assess whether the employer had a valid reason connected with the employee's capacity or conduct. (Walton v Mermaid Dry Cleaners Pty Ltd, Moore J, 142 ALR 681)
• In deciding whether there is a valid reason, the Commission must look at the applicant's conduct and determine on the balance of probabilities what that conduct was and whether it took place.(Farrugia v Transadelaide, SAIR 6, Stevens DP)
• In matters involving misconduct there is an onus on the employer to establish that the misconduct took place. (YEW v ACI Glass Packaging Pty Ltd, Wilcox CJ, 71 IR 201)
• Misconduct justifying dismissal is conduct that is so serious that it goes to the heart of the contract. (North v Television Corporation, Smithers, Franki and Evatt JJ, 11 ALR 599)
• Serious misconduct will usually justify summary dismissal and will rarely support a finding that a dismissal was "harsh, unjust or unreasonable". (R v Industrial Court; ex parte Mt Gunson Mines Pty Ltd, King CJ, 30 SAIR 504)
• A termination may be harsh because it is disproportionate to the gravity of the misconduct.(Byrne v Australian Airlines Limited, High Court per McHugh and Gummow J, 185 CLR 410)
• The attitude of industrial tribunals to misconduct based on fighting is summarised by a Full Bench in Tenix Defence Systems Pty Ltd v Fearnley8 (footnotes omitted):
"[22] Before dealing with each of these submissions we wish to make some brief observations on the approach taken by industrial tribunals when fighting or an assault has been established. In AWU-FIME Amalgamated Union v Queensland Alumina Limited Moore J summarised the relevant decisions in the following passage:
`What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence.'
[23] Not dissimilar views, albeit in a different statutory context, have been expressed by a Full Bench of the Industrial Commission of South Australia in Torbet v Commissioner for Public Employment as follows:
`In considering what was the appropriate remedy for the misconduct a strong push on the chest where both participants were screaming at each other, the employer seems to have regarded dismissal as the only remedy. The evidence of Mr Keeley strongly suggests that the committee of enquiry, having reached the conclusion that an assault had taken place, thought it had no alternative than to dismiss the employee. But what this employer needed to consider was whether, upon weighing up the seriousness of the assault against the mitigating or extenuating circumstances, dismissal should occur, or whether some other and less serious punishment was appropriate. In reaching that decision the employer would also need to take into account the competing necessity to establish and retain discipline amongst its employees.'
[24] The above passages were cited with approval by a Full Bench of the Commission in Mobil Oil v Giuffrida. We also note the following observation by the Federal Court - in another fighting case - Qantas Airways Limited v Cornwall:
`We accept that in this case ... it is necessary to examine the circumstances surrounding the conduct relied on, which constitute the `relevant factual matrix', to decide whether the termination was supported, in the words of the statute, by `a valid reason ... connected with the employee's ... conduct'. As was said in Cosco Holdings and in Allied Express Transport, a valid reason is one which is `sound, defensible, or well-founded'. But it is important to remember that the governing words are those of the statute, and that attempts at judicial explanation should not be substituted for the statutory provision. The question remains whether, the employer having terminated the employee's employment, there was a valid reason connected with the employee's conduct.
We have already stated that the respondent, in the present case, struck his supervisor. That is not now in dispute. Nor is it in dispute that Qantas acted on this conduct as a reason when it terminated the respondent's employment. 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.'
[25] We think these authorities support the view that in determining whether there is a valid a reason for a termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:
- whether the terminated employee was provoked and whether he or she was acting in self defence;
- the employer's need to establish and retain discipline amongst its employees; and
- the service and work record of the employee concerned."
• In deciding whether a termination is harsh, unjust or unreasonable the Commission will have regard to each of the matters in s.170CG and apply the statutory test of a "fair go all round".”
[12] In terms of the evidence the applicant says it should be concluded that the working environment for the applicant was stressful and that abuse from passengers is not uncommon. Mr A. had been abusive to the applicant.
[13] The evidence including that of Ms Bird, a passenger who witnessed the events, shows that Mr A was about to hit Ms Dinis at the time that the applicant had closed the doors of the bus and was ready to pull away from the curb. Mr Millman for the applicant argues that at this point the applicant saw this and that Mr A had raised his arm towards Ms Dinis.
[14] It is recognized by the applicant that at the same time the applicant was removing his seat belt, opening the gate, which separates the driver’s seat from the entrance to the bus, and getting off the bus Ms Dinis who was outside on the footpath moved towards the back doors of the bus 2.
[15] Next the applicant says it should be inferred that Mr A attempted to punch the applicant who then used the forward momentum of Mr A. to spin him around and sit him down on to the seat at the bus shelter. The applicant then punched Mr A once and held him down 3.
[16] Ms Dinis then approaches the applicant and Mr A and is told to go away by the applicant who then immediately releases Mr A, gets back on the bus, closes the door and drives off. This all happened very quickly in a matter of seconds 4.
[17] Mr Millman for the applicant argues that the applicant by intervening with Mr A removed the threat he posed to Ms Dinis (which justified the applicant’s actions) and that Mr A was then immediately subdued, no longer posed a threat and so this allowed the applicant to immediately leave on the bus.
[18] The applicant some time later as he is driving the bus on the remainder of its route then contacted the respondent’s base by radio and requested to speak with the manager when he arrives back at base. Having returned the bus to the base the applicant meets with Mr Smith, the respondents Operations Manager for the Beckenham Depot, and fills out the incident report 5.
[19] It is submitted that it is strongly in the applicants favour that he has been full and frank with the respondent, at the earliest possible time as to what occurred with Mr A.
[20] It is said for the Applicant that not only did he act in self defence, but he also rendered assistance to Ms Dinis who was in danger of being assaulted.
[21] The Applicant submits that the Respondent has not conducted a proper investigation and in doing so has failed to afford the Applicant natural justice or procedural fairness.
[22] The Applicant submits that prior to terminating the employment the respondent failed to have regard to the following:
- the particular circumstances of the Applicant including his length of service and his otherwise good record of employment;
- the immediacy with which the Applicant reported the incident;
- the fact that no complaint was made by the passenger to the police.
[23] In all the circumstances the Applicant submits that he has been unfairly dismissed and is entitled to reinstatement and compensation.
The respondent
[24] The respondent submits the assault on Mr A was unprovoked and/or was not based on self defence of the Applicant or defence of another person. The assault was a valid reason for termination.
[25] The CCTV recording and the evidence generally demonstrates that Mr A attempted to board the bus. Mr A then steps off the bus after discussion with the Applicant. Mr A on the footpath then turns around facing the Applicant and the Applicant and Mr A have a brief discussion.
[26] Ms Dinis approaches the bus but then turns and walks towards the back of the bus. Ms Dinis then stands at the rear door of the bus with a hand to her ear.
[27] At this point Mr A stands by the bus stop seat adjacent to the front bus door.
[28] Then the Applicant leaves the bus and runs towards Mr A who is standing by the bus stop seat adjacent to the front bus door.
[29] The Applicant then shoves Mr A onto the bus stop seat. The Applicant then punches Mr A to the side of his head at least once. At this point Ms Dinis is standing by the rear bus door which is 7 metres from the front bus door and the bus stop seat where the assault takes place.
[30] Neither Ms Dinis nor the Applicant was under any threat of physical harm at any time. The assault by the Applicant on Mr A was unjustified. Further and alternatively the assault by the Applicant on Mr A was completely disproportionate to the circumstances that arose at the time. Having shoved Mr A Mr A onto the bus stop seat, there was no need to then punch Mr A to the head.
[31] The applicant was aware of Swans policies and procedures for handling difficult and abusive passengers.
[32] There is no evidence in the incident report that Mr A was intending to strike or engage in any physical contact with Ms Dinis whatsoever.
[33] There was an incident report prepared by the applicant and meetings with Mr Smith who went through the incident with the applicant. The applicant was advised that Swan would investigate the incident and review the CCTV recordings. The applicant was stood down on full pay pending the outcome of the investigation. Swan then investigated and interviewed a number of witnesses. There were subsequent meetings with the applicant and his union representatives on 4 June 2009 at which time the incident and investigations were discussed and the CCTV recordings were viewed.
[34] The applicant was advised that Swan viewed the incident as a matter of serious misconduct which would result in termination and this was subsequently confirmed in a letter to the applicant dated 5 June 2009 6.
[35] The assault was a valid reason for termination, amounted to serious misconduct and the dismissal was not harsh, unjust or unreasonable.
Consideration
[36] The incident report 7was provided by the applicant to the respondent immediately after the incident. The report detailed what the applicant said occurred as follows:
“I refused to carry an intoxicated/Abusive indigenous male age approx 40 yrs, my height and very solid build.
Iuliana Dinis of welshpool Depot happened to be at the bus stop as I told the guy to get off.
Iuliana did not realise what was happening and said “Hello Ken, How are you?” from the pavement.
At that time the angry male stopped abusing me and turned on Iuliana.
He stormed off the bus with his fists clinched and told/screamed at her, “Fuck of you wanker, Fucking Slut…”
Iuliana cowered immediately and started towards the back doors with her arms raised to protect herself.
I fumbled with the seatbelt then barged through the driver gate and stopped him in his tracks. I spun him around when he was within a foot or so of Iuliana.
He took one strike, like a bloody girl I side stepped, shoved him towards the seat at the bus stop and planted 1 punch into the side of his head.
He immediately started screaming again like a girl.
Iuliana returned and was saying something but I did not understand as I think she may have gone Romanian as usual.
I yelled at her to go away, in fact I told her repeatedly to get out of here so I could release the guy.
Iuliana did nothing at all to warrant the bloke trying to assault or abuse her. However I firmly believe If I had been even 1 – 2 seconds later he would have physically attacked her, so I simple saw red and acted to prevent Iuliana becoming a victim in the situation.(sic)”
[37] The critical elements of the applicants report say:
- Mr A got off the bus, had his fists clenched, was angry and screamed abuse at Ms Dinis.
- Ms Dinis cowered immediately and went toward the back doors of the bus.
- The applicant left his seat and stopped Mr A.
- The applicant spun Mr A around when he was within a foot or so of Ms Dinis.
- Mr A then took one strike which the applicant side stepped and the applicant shoved Mr A towards the bus stop seat and punched him to the side of the head.
- The applicant believed Mr A would have attacked Ms Dinis so he saw red and acted to prevent this.
[38] Clearly the applicant was alarmed at what he could see outside the bus and was fearful of what Mr A might do.
[39] In the incident report the applicant did not mention that Mr A raised his arm as if to hit Ms Dinis.
[40] The applicant had seen Ms Dinis move towards the rear doors. There was some delay as he fumbled to get out of his seat belt and exit the bus. Once outside the applicant stopped Mr A and spun him around. The applicant had made physical contact with Mr A first. Only then did Mr A try to hit the applicant.
The witness evidence
The applicant
[41] In his witness statement the applicant said:
“The man turned around and got off the bus. I then heard the man screaming and looked and saw he was pacing after Ms Dinis.
I could see he was right in her face screaming. I heard him say words like ‘white whor” and ‘ slut”. He was moving towards her. I was very worried about her safety and undid my seatbelt.
I then went to open the door. At this stage, luliana was further down the street, I saw her with her hands up near her head. The man had his fists clenched at this side of his body. She had turned around and was walking away from him.
I was very worried about luliana’s safety. I ran to him.
I called out ‘ hey!” is as I was getting off the bus.
The man turned around and it looked like he was going for me with his right fist. I avoided the punch, then grabbed his shirt front with both my hands, kept holding him with my right hand and hit him with my left hand once, to his right side of the face. I then started to pull him around. The bus stop seat was behind me. I held him with one hand and spun him on to the seat.
After I was satisfied that the man did not represent any further threat, I got back onto the bus.”
[42] It is notable in this witness statement that the applicant says Mr A had his fists at his side. This is consistent with the applicant’s incident report. There is no suggestion that Mr A had raised his arm as if to hit Ms Dinis.
[43] The applicant’s statement says Mr A was right in Ms Dinis face, i.e. very close to her, as he was undoing his seatbelt. Before the applicant had exited the bus and reached Mr A, he says Ms Dinis was further down the street and had turned and was walking away from Mr A.
[44] It is also a notable that in contrast to the sequence of events the applicant gave in the incident report this statement says that Mr A attempted to punch the applicant and only then did the applicant grab Mr A.
[45] In his oral evidence and under cross examination the applicant says that having exited the bus he yelled at Mr A who turned towards him and took a swing at the applicant and the applicant used Mr A’s own momentum to then swing him around. This differs from his incident report but was consistent with his witness statement 8.
[46] The applicant admits he was angry at what he had seen was happening to Ms Dinis 9.
[47] The applicant is physically fit, has held two black belts in martial arts but has not trained for four years 10. His evidence is that given his martial arts skills he was in control at all times and could have injured Mr A if he wanted to11.
[48] The applicant’s oral evidence was that when he made contact with Mr A he was within 3 feet of Ms Dinis and they were 15 or 20 feet from the bus stop seat 12.
[49] The applicant explains how Mr A was moved to be seated on the bus stop seat as follows:
“You say you dragged him the 15 to 20 feet to the bus seat? – No, I shoved him backwards, actually. It’s amazing. You put someone off balance, they will go anywhere you want to take them. If you push their head back and behind them, they will keep running backwards, to make sure they don’t hit the ground.” 13
[50] This evidence as to where the applicant was when he confronted Mr A is at odds with the applicants witness statement. This witness statement says,
“I avoided the punch, then grabbed his shirt front with both my hands, kept holding him with my right hand and hit him with my left hand once, to his right side of the face. I then started to pull him around. The bus stop seat was behind me. I held him with one hand and spun him on to the seat.”
[51] In his witness statement the applicant says he started to pull Mr A around, the bus stop seat was behind him, he held him with one hand and spun him onto the seat. This version of events suggests that that Mr A was very close to the bus stop seat when the applicant confronted him.
[52] Having considered the incident report the applicants witness statement and his oral evidence my view is that the applicants oral evidence in particular his answers in cross examination were contrived to reinforce the view that Mr A was very close to Ms Dinis at the time the applicant confronted Mr A, rather than some distance away from her closer to the bus stop seat.
Mr A
[53] Mr A’s evidence is he did verbally abuse Ms Dinis and after this he went to sit down at the bus stop 14.
[54] He says he did not try to hit the applicant 15.
Ms Dinis
[55] The evidence of Ms Dinis is limited to the fact that Mr A came up behind her and seemed angry and had raised his hands towards her in an angry manner, verbally abused her and had his fists clenched, She says he came close to her and that she was shocked and afraid and thought Mr A was going to hit her.
[56] She saw the applicant push Mr A away from her on to the bus stop seat but does not remember what Mr A was doing and did not see the applicant hit Mr A. Whilst the applicant was holding Mr A down on the bus seat she approached them and told the applicant he should let Mr A go because she was fearful the applicant would lose his job because the company rule was that whatever happened on or off the bus the driver must not leave their seat.
Ms Bird
[57] Ms Bird was a passenger on the bus seated in the front left seat adjacent to the driver’s seat.
[58] She says she saw Mr A board the bus and ask for a concession fare. She heard the driver ask for a concession card and then says that Mr A just shrugged his shoulders and got off the bus. He did not say anything to the driver until he got off the bus when he turned around and started to be abusive.
[59] She saw Ms Dinis approached the bus and wave to the driver. Her evidence was that later the driver identified Ms Dinis as his future wife 16.
[60] Ms Bird says that Mr A then abused Ms Dinis and raised his arm with a clenched fist as if he was about to hit her.
[61] Ms Dinis appeared quite shocked by this, stepped away from Mr A and walked towards the rear doors of the bus. Mr A just stood there after he abused Ms Dinis and then walked towards the bus stop seat and sat down. Mr A did not follow after Ms Dinis 17.
[62] Ms Bird then saw the applicant get out of his seat get off the bus and go towards Mr A and speak to him and at this point Ms Dinis was towards the back of the bus watching.
[63] Ms Bird under cross-examination said she did not hear Mr A abuse the applicant whilst he was on the bus.
[64] Her evidence was that it all happened very quickly and when asked whether she had to turn around to look behind her she said she did because she was concerned about Ms Dinis and wanted to see where she was because she was obviously out of the way.
[65] Ms Bird was generally supportive of the applicant repeating that when refusing Mr A a concession fare he was just doing his job and should not have been abused for this 18.
Mr Smith
[66] The evidence of Mr Smith went to the policies of Swan regarding dealing with problematic passengers and the training regarding this which Mr McMahon had been given. His evidence also recounted the process that Swan undertook on being advised by Mr McMahon that there had been an incident with Mr A.
[67] Mr Smith viewed the CCTV recording of what occurred and in his evidence explained that he formed the view that at the time Mr McMahon is shown leaving the bus Ms Dinis was standing towards the rear doors of the bus and that the altercation between Mr McMahon and Mr A occurred at the bus stop seat.
[68] The distance between the front and rear doors of the bus he measured to be 5.7 m however the bus stop seat is some metres further back from the kerb and the bus and consequently it is his estimate that the altercation occurred approximately 7.5 m from where Ms Dinis was then standing 19.
[69] I note of course that Mr Smith in this evidence is merely expressing his view of what he believes the CCTV recording shows.
[70] His evidence also recounted the interview he had with Ms Bird and subsequently with Mr A.
[71] His evidence recounted what occurred at the disciplinary hearing with Mr McMahon on 4 June 2009 and at the conclusion of that meeting he advised him that Swan's view was that his actions amounted to serious misconduct and his employment would be terminated.
[72] Mr Smith's conclusions about the altercation from watching the CCTV recording was that at the time when the applicant confronted Mr A outside the bus Ms Dinis was a safe distance away and there was no necessity for the applicant to physically intervene with Mr A. as he did 20.
Findings
[73] Having a viewed the CCTV recording of what occurred and considering the evidence of the witnesses my conclusions about the critical events are as follows:
[74] Mr A boarded the bus and requested a concession fare.
[75] The applicant refused to give Mr A a concession fare in the absence of a concession card.
[76] The applicant told Mr A to exit the bus and Mr A complied with this.
[77] Mr A did abuse the applicant but not until he had exited the bus and was standing on the footpath.
[78] Ms Dinis approached the front doors of the bus behind where Mr A was standing on the footpath.
[79] Mr A was angry and had his fists clenched at his side.
[80] As the applicant was closing the bus doors and preparing to pull way from the curb he heard Mr A abusing Ms Dinis and saw him move towards her and he raised his arm to her.
[81] The applicant seeing and hearing this was fearful for Ms Dinis.
[82] The applicant opened the bus doors and exited the bus.
[83] Whilst the applicant was doing this Ms Dinis walked towards the rear doors of the bus
[84] The rear doors of the bus are 5.7 m from the front doors of the bus. The bus stop seat is approximately 7.5 m from rear doors of the bus.
[85] The applicant whilst exiting the bus called out to Mr A who turned towards him.
[86] The applicant in his witness statement and his oral evidence says that Mr A then attempted to strike him however this is at odds with the applicant's original explanation of what occurred which he wrote in his incident report. It is also at odds with Mr A’s evidence 21. Ms Bird in her evidence does not mention Mr A attempting to strike the applicant.
[87] In my view the incident report is more likely to be the correct sequence of events because it was written by the applicant on the same day the events occurred and at the time the applicant was completing the incident report he believed his actions were the fully appropriate and he would not be criticized for what he had done. Having since been terminated from his employment for these actions it is my conclusion that the applicant in his witness statement and oral evidence before the tribunal exaggerated the risk to himself by changing the sequence of events to portray Mr A as the aggressor who swung to strike at him first when this was not in fact the case.
[88] At the time the applicant had reached Mr A the applicant says Mr A was a maximum of 3 foot away from Ms Dinis. Consequently the applicant says he reasonably believed that Mr A posed a threat to Ms Dinis’s safety. Ms Dinis’s evidence on this point is broadly supportive of the applicant however is not particularly clear as to at what point in the events Mr A was very close to her.
[89] The evidence of Ms Bird and Mr A was that Mr A did not follow Ms Dinis towards the rear doors of the bus and instead remained close to the bus stop seat.
[90] The CCTV recording shows Ms Bird and another male passenger watch the applicant exit the bus. They can be seen to be actively watching what then occurs on the footpath. There is no doubt, and Ms Birds evidence is that this was the case, that she and the other male passenger where watching the confrontation between the applicant and Mr A. The CCTV recording shows both these observers to be looking out the bus windows at whatever activity is occurring in a direction that is approximately at right angles to the bus and in line with the front passenger seat. Neither of them look backwards to where at the same time Ms Dinis can be seen in another camera, close to the rear bus door.
[91] Having seen Mr McMahon and Ms Dinis giving their evidence and considering the difference between the applicants incident report and his later evidence concerning where Mr A was when the applicant spun him onto the bus stop seat I believe that the applicant and Ms Dinis have both exaggerated the threat Mr A posed to Ms Dinis at the point the applicant confronted Mr A. To the extent that the evidence of the applicant and Ms Dinis is that Mr A was very close to Ms Dinis at the time the applicant confronted Mr A I do not accept that this was correct.
[92] I do accept that Mr A may have been 3 feet or closer to Ms Dinis at the time the applicant first became alarmed about what he heard and could see whilst he was inside the bus and about to drive a way. However by the time he had exited the bus and reached Mr A I have concluded that there was some considerable distance between Mr A and Ms Dinis. My own viewing of the CCTV recording confirms on the balance of probabilities this to be the case and this finding is consistent with the evidence of Ms Bird, who is the only neutral witness to give evidence, and the evidence of Mr A.
[93] My conclusion is that at the moment the applicant physically confronted Mr A, Mr A was some metres away from Ms Dinis. She was close to the rear doors of the bus and Mr A. was close to the bus stop seat. This is consistent with the applicants witness statement that says he spun Mr A onto the bus seat with one hand. The applicants oral evidence that he had somehow moved Mr A 15 to 20 feet from where he confronted him back towards the bus stop seat, considering the other evidence, is not believable.
[94] I accept that prior to this when Mr A raised his arm towards Ms Dinis that they may have been close together and so the applicant’s initial alarm for Ms Dinis's safety was reasonable and I do not criticize the applicant for stopping the bus and leaving his seat. However by the time applicant had exited the bus and taken the few steps towards Mr A I am satisfied that there was on the balance a sufficient distance between Mr A and Ms Dinis that Mr A did not pose a physical threat to her at all.
Conclusion
Was there was a valid reason for the termination?
[95] The applicant in the course of his employment has grabbed hold of Mr A pushed him down on to a seat and then struck him in the head.
[96] I have considered the authorities the parties have referred me to. These authorities largely deal with fighting in the workplace. The question is what if any extenuating circumstances where there that might justify the applicant actions. The argument for the applicant is that he acted in self defence and/or defence of another and so his actions were justified.
Self defence
[97] It is submitted on applicant's behalf that his actions were the justified as a matter of self defence. This is so it is submitted because it was Mr A who first attempted to strike the applicant.
[98] As I have found above whilst Mr A had been verbally abusive the only physical aggression demonstrated by Mr A was to raise his arm towards Ms Dinis as Ms Bird witnessed.
[99] As I have found above Mr A did not attempt to strike the applicant first. Rather it was the applicant who grabbed Mr A first and he in response did then try to strike the applicant. In the applicant's own evidence this was an ineffectual and half-hearted action by Mr A that the applicant easily avoided. Consequently I do not accept that that Mr A posed any physical threat to the applicant that would justify the actions of the applicant in firstly being the initiator of the physical contact by grabbing hold of Mr A, then pushing him down onto the bus seat and then striking him in the head.
Defence of another
[100] It is submitted on applicant's behalf that his actions were the justified as occurring in defence of another.
[101] I accept the applicant at the time he was about to drive the bus away from the bus stop, because of Mr A’s earlier verbal abuse and because he was then abusing Ms Dinis and had raised his arm in an aggressive way and was close to her, did have reasonable grounds to be fearful for Ms Dinis’s safety. However by the time the applicant had exited the bus and confronted Mr A, Ms Dinis was a safe distance away and Mr A posed no threat to her and in fact the applicant was the aggressor. The applicants actions cannot be justified as being in defence of Ms Dinis.
[102] Considering all the circumstances I do not accept that the applicant acted in self defence or defence of another. What occurred was so one sided as not to amount to a fight but is more accurately described as an assault by the applicant. I find there were no extenuating circumstances as to why the assault occurred. The assault was serious misconduct and so was a valid reason for the termination.
Was the employee notified of that reason?
[103] The applicant was notified verbally and in writing of the reason for his dismissal.
Was the employee was given an opportunity to respond to the reason?
[104] The applicant was asked to provide an incident report explaining his version of the events and was questioned by the respondent about what occurred. The applicant with his union representative was later invited to view the video of the incident and was told about the witnesses the respondent had spoken to and was invited to respond to the proposition that the incident was serious misconduct warranting dismissal.
Was the employee warned about that unsatisfactory performance before the termination?
[105] This was not a case of unsatisfactory performance but involved serious misconduct.
The size of the employer and the procedures followed.
[106] The processes followed by the respondent were appropriate given the respondents size.
[107] Contrary to the applicants submissions he was afforded natural justice and a fair procedure was applied.
Other matters considered relevant.
[108] There are a number of other relevant considerations in this case.
[109] Firstly, the applicant was full and frank with the respondent at the earliest possible time as to what occurred with Mr A and this is to his credit.
[110] It is also said that the fact that Mr A did not report the assault to police should be considered. On this point I note that at the time Mr A was assaulted he was homeless and so was likely to be concerned more with the immediate difficulties this posed for him each day rather than seeking justice for this incident.
[111] The applicant argues the job is stressful and abusive passengers are not uncommon and I would accept that this is the case.
[112] None of these factors above are extenuating circumstances nor do they change the nature of the applicant’s actions which were the reason for his dismissal.
[113] The applicant has had no other blemishes on his employment record with the respondent and has been employed for approximately 18 months, a relatively short period of service.
[114] Whilst this application is determined by the finding that the applicant had committed serious misconduct these other considerations do not alter the conclusion that the applicant was not harshly, unjustly or unreasonably dismissed from his employment.
[115] This application is dismissed.
COMMISSIONER
Appearances:
Mr S Millman of Slater & Gordon Lawyers on behalf of the Applicant
Mr A Drake-Brockman of DLA Phillips Fox on behalf of the Respondent.
Hearing details:
2009.
Perth:
February 9, 10.
1 Print PR944547 23 March 2004 (Full bench AIRC)
2 PN2313
3 PN2328
4 PN2329
5 Attachment WHS 2 to Exhibit R1
6 Attachment WHSA to Exhibit R1
7 Attachment WHS 2 to Exhibit R1
8 PN 676-2693
9 PN700
10 PN 633 – 638
11 PN 788
12 PN 847 – 849
13 PN849
14 PN 2132, 2150
15 PN 2151
16 PN 2045
17 PN 2048 to 2054
18 PN 2096
19 PN 1268
20 PN 1306
21 PN 2151
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