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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 5740
Decision Date: 28 SEPTEMBER 2011

CaseChat Overview and Summary

Mr Peter Fox brought an unfair dismissal claim against Torrens Transit Services (North) Pty Ltd in the Fair Work Commission. The dispute centred on the termination of Mr Fox's employment as a bus operator, following an incident where he refused to open the front door to allow a passenger to exit. The company alleged that Mr Fox's refusal was based on genuine safety concerns, which constituted serious misconduct. The central legal issue was whether Mr Fox's actions constituted valid grounds for dismissal and whether the dismissal was harsh, unjust, or unreasonable.

The Commission examined the incident in detail, considering whether Mr Fox's refusal to open the front door was justified under safety protocols. It was noted that the applicant had been on earlier warnings that were disputed, although these were not relied upon in these proceedings. The Commission concluded that Mr Fox's conduct during the incident was serious misconduct, warranting dismissal. The decision was based on the severity of the incident and the failure to adhere to safety procedures, which were deemed critical in the context of passenger transport.

Ultimately, the Fair Work Commission found that the dismissal was justified and not harsh, unjust, or unreasonable. The Commission emphasised that the incident with the passenger was the primary factor in assessing the validity of the dismissal and the seriousness of the misconduct. Mr Fox's past warnings were not considered in this instance, as the decision hinged on the specific incident. The dismissal was upheld as fair and reasonable given the circumstances.

Orders