Mr Peter Fox v Torrens Transit Services (North) Pty Ltd

[2011] FWA 5740

[2011] FWA 5740

FAIR WORK AUSTRALIA

DECISION

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

Mr Peter Fox
v
Torrens Transit Services (North) Pty Ltd
(U2011/4985)

COMMISSIONER HAMPTON ADELAIDE, 28 SEPTEMBER 2011

Termination of employment - bus operator - incident with passenger including when applicant refused to open front door to permit passenger to leave - whether based on genuine safety concerns - whether misconduct - whether valid reason for dismissal - applicant on earlier warnings that were disputed - warnings not relied upon in these proceedings - whether valid reason and whether dismissal harsh or unfair to be assessed in this case based upon incident with passenger - valid reason for dismissal - conduct of applicant serious misconduct - dismissal not unfair.

INTRODUCTION AND CASE OUTLINE

[1] This is an application by Mr Peter Fox (Mr Fox or the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The applicant was dismissed from his role as a Bus Operator with Torrens Transit Services (North) Pty Ltd 1 (Torrens Transit or the respondent) on 31 January 2011 on the basis of alleged serious and wilful misconduct.

[2] Torrens Transit is a relatively large business operating public bus services under contract to the South Australian Government.

[3] The applicant was employed in April 2003 as a Bus Operator by another company (Serco) that was previously undertaking the contract to supply services in the region of Adelaide in which Mr Fox drove buses. In April 2005, Mr Fox was employed by Torrens Transit and I have treated all of his service as being continuous, at least for present purposes.

[4] On 5 January 2011 an incident took place on board a bus being driven by Mr Fox. That incident involved the applicant refusing to let a passenger exit via the front door of the bus following an earlier verbal exchange. This resulted in a stand-off that lasted for over 20 minutes, which was only resolved when a senior officer from Torrens Transit attended the bus at the request of Mr Fox. The circumstances and motivation of the applicant leading to that incident lie at the heart of this matter.

[5] Having regard to the matters outlined in s.399 of the Act, I considered that it was appropriate to conduct a hearing in this matter. 2

[6] The applicant represented himself and the respondent was, with permission, represented by Mr Dowd, special counsel with Piper Alderman.

[7] Given the absence of professional representation of the applicant, the parties were advised at the outset of the general nature of the statutory context and the manner in which the hearing would be conducted. Appropriate assistance and latitude was also provided to Mr Fox in the presentation of his case. 3

[8] The applicant contended his dismissal was harsh, unjust and unreasonable. In particular, he denied he acted inappropriately in his dealings with the passenger but rather contended that he was following the procedure that he was earlier advised to do when confronted with an aggressive or violent passenger. That is, to require them to leave via the middle doors of the bus, referred to as the rear doors, rather than to leave by the doors closest to the driver.

[9] Mr Fox variously contended that the passenger was rude and aggressive, yelling and violent, and that he feared for his own safety and wellbeing. In that context, he argued that his actions were not any form of misconduct and did not represent grounds for his dismissal.

[10] Mr Fox also contended that his dismissal was the result of a series of actions whereby he was treated unfairly and inconsistently following an incident where he was wrongly accused of failing to stop and give way to an emergency vehicle. He asserted that following that incident, a series of issues were unfairly raised against him and these led to him being on a final warning at the time of the incident with the passenger. Mr Fox has also accused Torrens Transit of manipulating the CCTV footage of that incident and of failing to keep or supply evidence that would have revealed the unfairness of the earlier warnings.

[11] The applicant did not seek reinstatement but rather compensation in lieu of reinstatement.

[12] The respondent contended the applicant was not unfairly dismissed on the basis that his conduct in relation to the passenger on 5 January 2011 amounted to serious and wilful misconduct that warranted his dismissal. That is, it was suggested that the passenger was not being rude or aggressive and that there was no reasonable basis for Mr Fox to refuse to let him leave by the front doors. The applicant’s decision to do so, and consequently keeping the bus and the other passengers waiting for over 20 minutes, was described as being stubborn, inexplicable and fundamentally inconsistent with his duties.

[13] Torrens Transit also argued that the applicant’s intransigence during the incident itself and the absence of any sense of regret or understanding as to the significance of his conduct supported the notion that Mr Fox’s conduct was such as to repudiate essential elements of the employment contract. 4

[14] Torrens Transit strongly denied that any CCTV footage had been manipulated. The respondent did not concede that the earlier warnings were unsound but did not seek to cross-examine Mr Fox on those matters or generally to rely upon evidence to support the same. Rather, it argued that the consideration of this dismissal should be squarely based upon the incident with the passenger.

THE EVIDENCE

[15] Mr Fox gave evidence on his own behalf.

[16] The following gave evidence for the respondent:

• Ms Charmaine Perry - former Operations Manager with the respondent who was involved in the issuing of the earlier warnings to the applicant and attended the disciplinary hearing leading to the applicant’s dismissal;



• Ms Sharon Brown - Area Manager with the respondent and the person who in effect made the decision to dismiss the applicant;



• Mr Mark Aistrope - Service Support Manager with the respondent and the person who attended the bus on 5 January 2011 and subsequently took the passenger home;



• Mr Douglas Lamont - General Manager of the respondent; and



• Mr Samuel Condon, Solicitor with Piper Alderman.

[17] I note that Mr Lamont and Mr Condon were only called to provide evidence as the circumstances in which the passenger came to provide a statement for use in these proceedings but could not subsequently be contacted. I accept their evidence without reservation.

[18] I found that the applicant had a consistent tendency to exaggerate and modify the facts and circumstances in an attempt to justify and bolster his position. I also found that Mr Fox’s explanations for certain events and actions escalated and were not always convincing. This does not lead me to reject his evidence out of hand, however I am reticent to accept it on face value.

[19] I found that Ms Perry’s evident disregard for Mr Fox influenced her evidence and potentially her dealings with him during employment. I therefore treat that evidence with caution. Ms Brown and Mr Aistrope were however impressive witnesses.

[20] Where there is conflict between the evidence of the applicant and Ms Brown and Mr Aistrope about matters where they were directly involved, I generally prefer the evidence of the respondent’s witnesses.

[21] As alluded to above, the passenger involved in the 5 January 2011 incident did provide a witnesses statement for use in these proceedings. The passenger did not however attend the original scheduled hearing of the matter and despite the subsequent issuing of a subpoena, he did not attend the final scheduled hearing date. Although the applicant in effect suggested that I should draw a negative inference from the failure of the respondent to have the passenger give evidence, I do not consider that this should be done in the present circumstances.

[22] In the absence of a satisfactory explanation for evidence not being called when a fact is in issue, it is permissible (but not necessary) to draw an inference that the evidence would not have assisted the only party who was in a position to call that evidence. 5

[23] In this case, the evidence does reveal that the passenger willingly gave a statement for use in these proceedings and was apparently intending to give evidence. It is also the case that Torrens Transit took all reasonable measures to have the passenger attend and give that evidence. As a result, I do not draw any negative inference from the failure to call the passenger. However, I have not admitted, and will not have regard to, the witness statement that was originally provided by the passenger given that Mr Fox has been denied the opportunity to cross-examine him on the issues that are very much in dispute in this case.

[24] Both parties have provided and seek to rely upon various aspects of CCTV footage which has been taken from cameras on board the bus(s) concerned. There are various camera angles and these include the front door (showing the driver), the general passenger area of the bus, the rear doors and a view from the front of the bus along the direction of travel. A microphone is also located at the front of the bus.

[25] The CCTV footage is automatically recorded on each bus and downloaded to a hard drive when the bus returns to its depot. Unless a request is made to copy the footage from the hard drive, it is in due course, automatically overwritten.

[26] The applicant contended that the CCTV footage, and its sound in particular, had been manipulated by Torrens Transit and was also unreliable in certain respects. This included the suggestion that some of the CCTV footage had been overdubbed with white noise to blanket the sound.

[27] I accept that the sound on the CCTV footage of the incident that took place on 5 January 2011 is poor and the nature of the CCTV footage itself limits its utility for present purposes to some degree. 6 Although the cause of the poor sound (and in the case of some CCTV footage, no sound) is not clear,7 there is sufficient evidence to reject any notion that the CCTV footage has been manipulated or has been selectively maintained.8

[28] As a result, the CCTV footage of the shift on 5 January including its sound track is relevant evidence as part of the overall factual matrix, albeit that it must be treated with a degree of caution.

GENERAL FINDINGS OF FACT

[29] I will deal separately with the detailed findings in relation to the events of 5 January 2011.

[30] Other than in the case of the incident involving the emergency services vehicle, there is little direct evidence to support the other warnings given to the applicant in the lead up to his dismissal. I have included the subsequent warnings within the facts as they are part of the events leading to that decision. I will deal with their significance as part of the consideration of this matter.

[31] The applicant was originally employed by Serco in the same capacity as his subsequent employment by Torrens Transit, which began in April 2005. During his time with Serco, he received comprehensive training in most aspects of his job as a bus operator. This included advice from supervisors that if faced by a violent or abusive passenger, it may be better to have them leave via the rear doors of the bus to avoid them coming within close range of the driver to commit an assault and then quickly existing the bus.

[32] Mr Fox has previously faced and witnessed situations with violent passengers in or near a bus he was driving.

[33] In general terms, Mr Fox would be considered to be a reliable and professional bus driver. There is no evidence of any concerns other than as outlined below.

[34] Mr Fox was issued with a written warning on 16 March 2010 as a result of allegation arising from his failure to give way to an emergency vehicle (an emergency response station wagon) on 2 March 2010. This arose following a request from a Police Officer on 3 March for copy of any CCTV footage that might assist with enquiries into an alleged offence involving a bus being driven by Mr Fox on the previous day.

[35] Ms Perry organised for the CCTV footage to be burnt to DVD and provided this to the police. With the chain of evidence document that was provided to the police with the DVD, Ms Perry added the comment in relation to the incident details that “Driver of bus had plenty of time to see ambulance and stop to give way”. 9 I interpose that this was added after Ms Perry had seen the CCTV footage but prior to any investigation. Although I doubt that this was intended to or did influence the police investigation, this was an unfounded comment and Mr Fox was rightly aggrieved about its implications.

[36] Based upon the evidence before Fair Work Australia, the CCTV footage from the forward facing camera (which also lacked any sound that might have indicated the presence of a siren) is not of itself sufficient to make a finding about the capacity to stop the bus safely in time and appears to overstate the actual distances involved. I find that Mr Fox did not drive in a manner on 2 March 2010 that would warrant sanction from his employer.

[37] I add that the March 2010 warning was issued on the basis that if Mr Fox was subsequently found “not guilty” in relation to the incident, the warning would be withdrawn. Mr Fox defended the complaint that was made by the police and the charges were later dismissed by the relevant Court after the applicant’s termination.

[38] On 22 December 2010, Mr Fox was issued with a final written warning. This followed alleged incidents where the applicant was said to have failed to comply with operational procedures regarding insubordinate behaviour towards a supervisor, failing to adhere to instructions about smoking only in designated areas and smoking near to the end of a shift and thereby returning late to the depot.

[39] Mr Fox denied that he was insubordinate, indicated that many others smoked outside of the alleged designated areas and that he was entitled to have a break in order to avoid fatigue under the relevant driving hours legislation and codes.

[40] Given the lack of challenge to the evidence of Mr Fox in this respect, I do not intend to place weight upon these allegations or the final warning for the purposes of this matter. There is however sufficient evidence, which I accept, to find that these warnings were not in themselves, related to the earlier warning or Mr Fox’s decision to contest the police charges.

[41] The events of 5 January 2011 are dealt with below.

[42] Mr Fox was suspended on pay after 5 January until his dismissal.

[43] A disciplinary hearing to deal with the incident of 5 January 2011 was arranged by Torrens Transit for 31 January 2011. Mr Fox was advised in the lead up to that “hearing” of his rights of representation and the date was set having regard to the availability of Mr Fox’s solicitor who attended with him.

[44] Ms Brown conducted the hearing with Ms Perry also in attendance. Ms Brown explained that Torrens Transit had received a complaint from the passenger concerned and the details of the complaint were read to Mr Fox by Ms Perry. The complaint alleged that the passenger had difficulty locating his bus stop in the absence of his glasses and sought assistance from the driver who did not initially respond. The complaint further suggested that after the driver had pulled up after his intended stop, and that the passenger was confused as he was being told by the driver to leave via the middle of the bus but was right at the front door with his hands full of shopping. Amongst other matters, the complaint also referred to the driver’s reference to him as an abusive psychiatric patient and contained an assertion that he (the passenger) was elderly with a heart condition. 10

[45] In response, Mr Fox denied the allegations and explained the basis of his actions including by reference to allegations that the passenger had stood up and was screaming and calling him an arsehole.

[46] The parties then discussed the circumstances including the suggestion by Mr Fox that he felt threatened and management’s suggestion that the applicant could have simply let the passenger get off the bus where he was standing. This included Mr Fox referring to his training whilst at Serco, and Torrens Transit questioning the logic of that approach given the circumstances of the passenger concerned.

[47] The parties then viewed the CCTV footage on many occasions and Mr Fox and his lawyer complained about the sound quality and alleged that some of the sound was missing entirely. Torrens Transit then also referred to the Drivers manual and the importance of customer service.

[48] After a break to permit Mr Fox to discuss the issues with his lawyer, they explained to Torrens Transit that the absence of sound was critical and that Mr Fox considered that he felt he would have been verbally abused or threatened if he had opened the front doors. The fact that Mr Fox had remained calm and professional was also emphasised.

[49] Ms Brown indicated and then withdrew a suggestion that Mr Fox had kept the passenger captive (or hostage) but indicated that she could not understand Mr Fox’s actions. Ms Brown then advised Mr Fox that Torrens Transit was terminating his employment. I also add that Ms Brown earlier made mention of the fact that Mr Fox was already on a final warning.

[50] The dismissal of Mr Fox was subsequently confirmed in writing 11 by Ms Brown and this read in part as follows:

“...

Your service termination is based on the incident which occurred on Wednesday, 5 January 2011. Your actions during this incident were deemed to be unacceptable and your service was terminated on the basis of serious and willful (sic) misconduct.

I confirm that you will be paid for your rostered work up to and including the close of business on 31 January any accrued annual leave.

...”

[51] The applicant did not receive any notice or pay in lieu thereof. Mr Fox was also denied any long service leave payment on termination. 12

FINDINGS IN RELATION TO THE EVENTS OF 5 JANUARY 2011

[52] On the morning of 5 January 2011, Mr Fox was driving bus number 1609 in the Glenelg region of metropolitan Adelaide. At 11.28am, the passenger concerned boarded the bus carrying an apparently full back pack and two apparently loaded shopping bags in each hand.

[53] The passenger is a man apparently in his late 50’s or early 60’s and had no apparent major difficulty with climbing the steps of the bus or moving around, subject to constraints of carrying the bags. There was no exchange between Mr Fox and the passenger at the time of boarding the bus and the passenger sat in the first set of seats on the left hand side of the bus, close to the front door.

[54] Later, Mr Fox made some remark to a person outside of the bus regarding the apparent inappropriate parking or stopping of a vehicle and there is a brief discussion between the applicant and the passenger in relation to the location of a bus stop. The detail of that discussion is not clear on the evidence, although there is nothing to suggest that the passenger was being aggressive in any way or that Mr Fox was doing anything but being polite.

[55] At 11.32am, the passenger asked Mr Fox about the location of the Bells Road stop and the applicant shook his head without answering. The passenger was probably anxious about the location of his stop and he then sought some confirmation of the location of his bus stop with other passengers in his immediate area and may have received some reassurance that he would be informed.

[56] Shortly thereafter, it is likely that the passenger was informed by another passenger that his stop was next. The passenger then said to Mr Fox, “Stop here please” and whilst the applicant heard the passenger, he did not do so. Rather, he effectively ignored the passenger’s request and told him, “If you want the bus to stop mate you have the push the bell”. The passenger then said “I asked you nicely.” Mr Fox then said twice “Don’t talk to me whilst I am driving”.

[57] The bus overran the Bells Road stop and Mr Fox stopped the bus and informed the passenger as he is about to stop, “Back door,” meaning that he should leave via the back door of the bus. It is not possible to tell whether the passenger heard this first request. The passenger picked up his bags and moved the short distance to the front doors ready to alight. I add that there is no indication that the passenger was speaking to, threatening or otherwise menacing towards Mr Fox and his apparent intention at that time was to simply leave the bus.

[58] Mr Fox then said “Back door mate. I’m not opening the front door, I’m not opening it mate. We’ll sit here all day. Take the back door. No way mate. Not after you spoke to me like that”. The passenger replied “ What, I asked you nicely to stop and you’re being an arsehole. What are you going to do?” Mr Fox then said “nothing, we can sit here all day”.

[59] The passenger then put his bags down in the door well and stayed in the immediate area whilst speaking to the other passengers and to Mr Fox. There is no indication that Mr Fox or the passenger were speaking or acting aggressively to each other and much of the earlier conversation was repeated on a number of occasions.

[60] Without detailing all of the exchanges that followed, there were interactions with other passengers where someone demonstrated pushing the button (presumably out of frustration with the passenger), and Mr Fox and the passenger calmly debated whether reference to “arsehole” was swearing or offensive given the use of the expression “bloody hell” in government advertising. Mr Fox also explained that he needed time to stop the bus at his stop and the passenger indicated that he would only take two seconds to leave and points to his bags waiting by his feet at the front door.

[61] In due course, Mr Fox advises the passenger that “If I open the front door the next thing you’re going to do is assault me”. This is rejected by the passenger.

[62] At 11.48am, some 15 minutes later, Mr Fox used the radio handset next to the driver’s seat and informed the operations section, clearly within the ear shot of the passenger, “... I’ve got an aggressive (or abusive) passenger with a psychiatric condition can you send someone ...”. The passenger said something in response but does not otherwise react and merely stands his ground at the front door.

[63] There were a number of other passengers still on the bus and at 11.49am, Mr Fox advised that the next bus is behind them and most, but not all, alight the bus (by the rear doors).

[64] At 11.55am, Mr Aistrope arrived by car and when he approached the bus, Mr Fox opened the front door. Mr Aistrope then spoke to the passenger in the door well and after hearing his compliant, assisted him from the bus by carrying some of his bags. The passenger looked back at Mr Fox as he was leaving with a look of disrespect but said “sorry” as he stood down. Mr Aistrope then drove the passenger to his home.

[65] At 11.56am, some 20 odd minutes after he first stopped the bus, Mr Fox resumed his route and completed his shift.

[66] Mr Aistrope and Torrens Transit did not seek to interview any other passenger on the bus and received no complaints, other than from the passenger concerned who set out his perspective via an email to the respondent.

[67] I will deal further with the motivation and reasonableness of Mr Fox’s actions in due course, however I am not satisfied that the passenger threatened or abused the applicant in any way leading up to or during the incident. This is evident from the body language that is seen on the CCTV footage and from the very nature of the discussions that took place in the lead up to and during the “standoff” that took place at the front of the bus. I also do not accept Mr Fox’s evidence on these aspects for reasons outlined earlier.

[68] It is apparent to me that whilst Mr Fox would have been more comfortable if the passenger left via the rear doors and he was entitled to make that request, this was not in reality based upon safety concerns but rather, his annoyance at what he considered to be the attitude of the passenger.

[69] I interpose that whilst it clearly would have been entirely reasonable and appropriate for the passenger to have left via the front doors as he intended, I do not accept that it was impracticable for him to have done so via the rear doors, as contended by the respondent. He could have done so despite his many bags, by walking down the corridor of the bus and pushing on those doors when he leaving.

[70] The incident became a battle of wills between Mr Fox as the driver providing a service and the passenger as a paying customer. In the end, both were being stubborn and unreasonable.

CONSIDERATION - WAS THE APPLICANT UNFAIRLY DISMISSED?

[71] Mr Fox is a person protected from unfair dismissal within the meaning of s.382 of the Act.

[72] Section 385 of the Act provides as follows:

“385 What is an unfair dismissal

(1) A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[73] There is no doubt that Mr Fox was dismissed at the initiative of Torrens Transit as the employer. The respondent is a not small business within the meaning of the Act and there is no suggestion that the applicant’s dismissal was a genuine redundancy.

[74] As a result, I must consider whether the dismissal was harsh, unjust or unreasonable.

[75] The Act relevantly provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[76] I have earlier set out the general contentions of the parties and although I have considered the full positions advanced by the parties, I will not repeat them for present purposes.

[77] It is clear that s.387 contemplates that an overall assessment as to the nature of the dismissal must be made by Fair Work Australia. In so doing, the Act sets out a number of considerations that are to be taken into account.

[78] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).

[79] Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 13 In a case such as this, consideration of the conduct as the Tribunal finds it to be, based upon the evidence before it, must be made.14

[80] Further, a finding of serious misconduct is a sufficient, but not necessary condition to establishing a valid reason within the meaning of s.387(a) of the Act. 15

[81] At the outset, I do consider that reasonable actions taken by a bus driver to defend themselves or to take reasonable action that is genuinely considered by a driver to be an approach to manage a violent or aggressive passenger, would be appropriate and should not be the basis of any sanction. I also accept that in some circumstances, a decision to require such a passenger to leave via the rear doors could be one such approach.

[82] In this case, I have found that whilst the approach of having a potentially trying passenger leave via the rear doors may have been a consideration for some of his actions, Mr Fox was not motivated by genuine safety concerns when he refused to permit the passenger to leave by the front door of the bus. It is evident to me that Mr Fox found the passenger to be annoying and perhaps less than respectful but I do not accept that the passenger was threatening or abusive in such a manner that would provide any justification for the applicant’s actions.

[83] Rather, it was the immediate reaction of Mr Fox to direct the passenger to the middle doors, substantially as a penalty for the passenger’s perceived approach to him. Given all of the circumstances, it was unreasonable and totally unnecessary to require the passenger to leave via the rear doors and the continuing insistence that he do so when standing at the front doors ready to leave was even more so.

[84] There is little doubt that the reasonable and appropriate course of action would have been to stop the bus when Mr Fox was notified that the passenger wanted the next stop and to simply let him off via the front doors. He was carrying a considerable amount of shopping and was seated close to the front of the bus. Even allowing for its frailties, the CCTV footage is more consistent with the scenario that the passenger was simply intending to leave via the front doors when he was again advised by Mr Fox that he must leave via the rear doors. The actions of Mr Fox had the effect of potentially exacerbating the situation and leaving both him and the other passengers involved in a situation that would probably have otherwise gone without incident. What transpired became in effect little more than a battle of wills between two stubborn men, where neither wished to back down. The fact that one of these was a paying customer and Mr Fox was being paid by Torrens Transit to provide the service puts that stand-off into a particular context.

[85] The decision to wait some time before making a call to the respondent’s radio room and the reference by Mr Fox to the passenger as a psychiatric patient within his hearing, only exacerbates the earlier decision of the applicant to refuse to open the front doors and to stand on his position.

[86] I also observe that despite the provocation that the stand-off and the reference to the passenger in such derisory terms would have represented, there was no change in body language or speech that would have been consistent with the passenger being a genuine threat at that point or earlier.

[87] I have considered whether the applicant’s conduct should be considered to be misconduct or simply an appalling lack of judgement. In all of the circumstances, I consider that serious misconduct did take place.

[88] I am satisfied that there was a valid reason for Mr Fox’s dismissal relating to his conduct.

Section 387(b) – whether the applicant was notified of the reasons for dismissal.

[89] The applicant was formally notified of the reasons for his dismissal as part of the immediate process leading to and following that decision.

Section 387(c) – whether the applicant was given an opportunity to respond to any reason related to his capacity or conduct.

[90] The applicant was given a reasonable opportunity to respond to allegations about his conduct in relation to the matter. The alleged misconduct was set out and the applicant was given an opportunity to see the CCTV footage and present his perspective on the issues with the support of his lawyer.

[91] I do not accept the allegations of Mr Fox about tampering of the CCTV footage and the material relied upon Torrens Transit, including the compliant made by the passenger, were discussed during the disciplinary process.

Section 387(d) – any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to his dismissal.

[92] The applicant was allowed representation at all relevant times, including by his union representative in the earlier disciplinary meetings. Indeed, the final disciplinary interview was rescheduled in part to allow Mr Fox’s lawyer to attend with him.

Section 387(e) – if the dismissal is related to unsatisfactory performance by the applicant – whether the person has been warned about that unsatisfactory performance before the dismissal

[93] The respondent seeks to rely upon the applicant’s conduct on 5 January 2011 and this is not a performance matter within the contemplation of this provision.

[94] The previous warnings and alleged conduct are not relevant to the dismissal given the basis upon which it was determined and my findings as to the role they played in the final decision.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

Section 387(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

[95] There are no relevant considerations arising in this regard.

Section 387(h) – any other matters that FWA considers relevant

[96] The applicant had a relatively long period of service. This, and the associated consideration of whether the dismissal was harsh, that is, disproportionate to the conduct given all of the circumstances, including the impact upon the employee 16, are also clearly relevant considerations.17 Further, although the finding of a valid reason for dismissal is a very important consideration in a case such as this, all of the criteria of s.387 including other relevant factors must be considered.18

[97] I do not consider that the first written warning was appropriate or fair and given the respondent’s position in this case, it does not seek to rely upon the allegations culminating in the final written warning issued to Mr Fox.

[98] I have considered whether reliance upon these earlier warnings may have impacted upon the decision to dismiss Mr Fox. This was known to Ms Brown and referred to in the disciplinary hearing. However, I accept her evidence that this factor played little if any role in the decision and that she would have made the same decision based upon the events of 5 January 2011 in isolation. 19 This narrow basis for the decision is also confirmed in the letter of dismissal.20

[99] This means that I must consider whether the applicant’s misconduct on the day in question, and his continuing attitude to that behaviour, are such that they formed in their own right the basis of a dismissal without notice which was not disproportionate.

[100] On balance, the cause, nature and length of the stand-off and the consequences for the passenger and the others on or awaiting the bus; the provocative and unjustified reference to the passenger as a psychiatric patient within his hearing; the absence of any reasonable explanation for the applicant’s conduct; the likely impact of Mr Fox’s actions upon the service reputation of Torrens Transit; the intention of Mr Fox to exaggerate and misrepresent the circumstances to support his position with the employer; and the lack of any remorse or understanding as to the nature of his actions are such that the dismissal should not in the circumstances be considered to be harsh, despite the applicant’s service and the consequences of that decision for him.

CONCLUSION AS TO THE NATURE OF THE DISMISSAL

[101] Having regard to, and weighing up, all of the considerations established by s.387 of the Act, I find on balance that the dismissal of the applicant was not or harsh, unjust and unreasonable in all of the circumstances of this matter. As a result, I find that the applicant was not unfairly dismissed within the meaning of the Act.

[102] An order dismissing this application is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

P Fox, the applicant, on his own behalf.

S Dowd special counsel with Piper Alderman, with permission, for Torrens Transit Services (North) Pty Ltd.

Hearing details:

2011
Adelaide
June, 22, August, 23, 24
September 9

 1   The application was amended by consent to cite the correct respondent.

 2   The matter involved multiple witnesses and issues of credit are considerations.

 3   This was done in a manner consistent with the statutory charter of Fair Work Australia. See the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.

 4   Blyth Chemicals v Bushnell (1933) 49 CLR 66.

 5   Jones v Dunkel and Another [1959] HCA 8; (1959) 101 CLR 298.

 6   The CCTV footage is in effect a series of still shots taken at short intervals rather than traditional video footage.

 7   I accept that wind noise is not a satisfactory explanation for the poor sound quality however the background noise and the fact that some sharp sounds are clearly audible whilst other lower pitched sounds are indistinct are not in my view an indication that the sound has been tampered with.

 8   The evidence from the respondent as to the fact that the quality of sound varies depending upon a range of circumstances and that CCTV footage is overridden unless a specific request is made to save the footage within a nominated period, was credible.

 9   Exhibits A2 and R2 - attachment CP2.

 10   I have outlined the complaint for the purpose of setting the context for the disciplinary hearing. I have not relied upon the assertions for the purposes of making findings of fact.

 11   Exhibit R3 - attachment SB5.

 12 Under s.5 of the Long Service Leave Act 1987 (SA), an entitlement to pro-rata leave upon dismissal arises after 7 years of continuous service, but not where the dismissal is based on the ground of serious and wilful misconduct. It is not clear whether in this case, the absence of the payment was based solely upon the alleged conduct of the applicant. In any event, although this element is a consideration I am not as such determining whether the applicant has a claim for leave under that Act.

 13   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, per Ross VP, Williams SDP, Foggo C PR948009, 15 June 2004 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

 14   Edwards v Giudice [1999] FCA 1836; King v Freshmore (Vic) Pty Ltd, AIRC Print S4213, 17 March 2000 per Ross VP, Williams SDP and Hingley C.

 15   See RMIT v Asher[2010] FWAFB 1200, 3 March 2010 per Watson VP, Acton SDP and Williams C.

 16   This includes the loss of the applicant’s capacity to accrue and be paid his long service leave in other circumstances.

 17   Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465; Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 19 April 2011.

 18   Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 1166, 2 March 2011 per Watson VP, Sams DP and Asbury C.

 19   Transcript PN2058 to PN2062.

 20   Exhibit R3 - attachment SB5.

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