Mr Richard Peters v PJ & P Eldred T/A Elderado Travel Tours

[2016] FWC 1375

[2016] FWC 1375

FAIR WORK COMMISSION

DECISION

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

Mr Richard Peters
v
PJ & P Eldred T/A Elderado Travel Tours
(U2015/14181)

COMMISSIONER ROE MELBOURNE, 3 MARCH 2016

Termination of employment – small business code.

[1] Mr Peters was employed as a school bus driver 20 hours per week from March 2013 until his dismissal effective 30 October 2015. Mr Peters was told he was dismissed on 17 October 2015. Elderado is a small business employing three persons including Mr Peters and the owner Mr Eldred. Mr Peters has been replaced since the dismissal. Elderado operates three school bus runs in East Gippsland Victoria. The dismissal was for reasons of conduct and performance not redundancy.

[2] Mr Peters was employed on a regular and systematic basis throughout the school year and had a reasonable expectation of ongoing employment. It is not disputed that Elderado is a national system employer. I am satisfied that Mr Peters is protected from unfair dismissal and his application has been made in time.

[3] I found Mr Peters to be a straightforward witness. He made concessions where appropriate even where these were not helpful to his case. On some occasions Mr Peters did not carefully listen to the questions and this led to some misunderstandings. However, I generally accept Mr Peters’ evidence as truthful.

[4] Mr Eldred was also a straightforward witness. In the witness box Mr Eldred’s evidence was on some critical matters inconsistent with his written evidence. This was particularly the case concerning the dismissal meeting. In the period from mid 2014 onwards Mr Eldred gave evidence that he was required to keep a diary to be compliant with regulations concerning public bus operations. After considering the evidence of Mr Peters and Mr Eldred I am satisfied that Mr Eldred’s diary entries are generally reliable. I accept Mr Eldred’s evidence that he made the entries the following day except on the weekend when the entries were made on the following Monday.

[5] The evidence of Mr Hall concerning the events on 21 May 2015 was of limited value. I was not satisfied that Mr Hall had an accurate recollection of the necessary details of what occurred in respect to Mr Peters on that evening.

[6] A large number of individuals wrote statements in support of Mr Peters. Those statements attested to his good character and that they did not believe Mr Peters engaged in the alleged conduct of drinking to excess in the evenings such that he could not have had a zero blood alcohol content when driving the school bus the next day. Those who made the statements were not available for cross examination and hence their evidence is of limited weight. However, they do add some weight to my conclusion, arrived at from direct observation, of the general honesty of Mr Peters.

The evidence concerning the reasons for dismissal.

[7] The primary reason for the dismissal was that Mr Eldred alleged that Mr Peters was consuming alcohol in the evenings in quantities that would have meant he did not have 0.00 blood alcohol when he commenced the school run at 7am the next morning. Mr Peters signed a drug and alcohol policy on 27 July 2014. That policy required zero blood alcohol when driving the bus. Mr Eldred the owner of the company gave evidence that he relied upon three alleged incidents.

[8] The first incident was in May 2013. Mr Eldred says that he received advice from Mr Hall’s brother that Mr Peters had been at the Lindenow Hotel with a pot of beer in front of him. The person who witnessed the incident and notified Mr Eldred did not give evidence. Mr Eldred says that he spoke to Mr Peters at some stage after the incident and said “What’s this I hear that you were seen at the Lindenow Hotel during the school day with a pot of beer in front of you”. Mr Eldred says that Mr Peters said “O come on Paddy, I wouldn’t be drinking in the hotel”. Mr Eldred says that he told Mr Peters “There is always someone watching you when they know you drive the school bus.” Mr Peters accepts that a conversation along these lines occurred.

[9] Mr Peters gave evidence that a drop off and pick up point for Mr Peters school bus run was outside the hotel. The bus was parked outside the hotel with Mr Peters’ children in it. There were no other children in the bus. Mr Peters says that he went into the hotel to get pizza for his family for dinner on the way home from Lindenow to Dargo. He also bought a six pack of beer to take home whilst waiting for the pizza. He denies that he drank any alcohol. He understood that Mr Eldred was unhappy about the incident and he says he never went back to the hotel again. Mr Peters says that Mr Eldred did not say that his job was at risk but he knew it was serious.

[10] The second incident was Christmas Carols night at the Dargo Hall on Sunday 15 December 2013. Mr Eldred says that:

“My wife and I were at the carols that evening and saw Rick and his family there. I noticed Rick was throwing down quite a few beers that evening and I went up to talk to him. I said to him “don’t forget your driving the school bus tomorrow morning at 7.00am” of which he replied “I haven’t had that many”, I said “Do you think so, but don’t forget that everyone is watching you.” 1

[11] Mr Peters agrees that a conversation along these lines did occur. He says that he had four stubbies over a period of approximately 5 hours and went home at about 9pm. Mr Eldred, who also drove a school bus run the next morning, accepts that he was also drinking alcohol that night. Mr Peters understood the conversation as a warning not to drink too much on an evening prior to a school bus run. Mr Eldred did not tell Mr Peters that his job was at risk.

[12] The third incident occurred on 21 May 2015 when Mr Peters attended a pool and darts competition night at the Dargo hotel. Mr Eldred received a phone call from Mr Hall about the incident. Mr Eldred’s diary note says that Mr Hall told him that Mr Peters had been drinking in the pub until at least midnight. Mr Eldred says when he raised the matter with Mr Peters he said “he didn’t think he drank that much and that he didn’t think he would be over the limit.” Mr Eldred noted that Mr Peters did not deny that he left late 12.00 to 1.00am. Mr Eldred’s diary note concludes: “Told him that he has to be 0.00 and that his is the 3^rd time I’ve had to talked to him about drink driving. His reply was “Well I won’t drink anymore.”” 2

[13] Mr Hall gave evidence that he saw Mr Peters drink both beer and rum and coke. He says that Mr Peters left between 12.30am and 1am. Mr Hall says that his brother told him towards the end of 2015 that Mr Peters had been drinking a pot of beer in the Lindenow Hotel incident referred to earlier. This was not consistent with Mr Eldred’s evidence which was that Mr Hall’s brother had told him that there was a pot of beer in front of Mr Peters. Mr Hall accepted that he had also been drinking that night. He could not recall how many drinks he had or how many Mr Peters had. He says he did not wear a watch but he relied upon his mobile phone and the clock on the wall of the hotel. He gave evidence that he was working at the hotel prior to 2000 and recalls Mr Peters and his then wife drinking at the hotel and ordering rum and coke. Mr Hall did not refer to any unusual or inappropriate behaviour by Mr Peters that night.

[14] Mr Peters gave evidence that he had attended the darts night four times in the last year. The event is held every fortnight. Mr Peters says that he drank four or five beers over the period from 7.45pm to 11.30pm. He says that he left at that time. Mr Peters says that he rarely drinks spirits and does not drink rum and coke. Mr Peters says that his former wife drank rum and coke. Mr Peters says that he was not intoxicated and did not believe he would have been over 0.00 when driving the bus the next morning. Mr Peters understood when the matter was raised by Mr Eldred that Mr Eldred considered it a serious matter. Mr Peters says that after the incident he did not drink alcohol at the pub in the evening prior to driving the next day.

[15] One of Mr Peters’ sons gave evidence that Mr Peters was not drunk when he returned home at 11.50pm. Mr Peters’ son gave evidence that Mr Peters only had $20 with him that night so he could not have bought more than four drinks. He also gave evidence that Mr Peters did not drink rum. Mr Peters is a single parent with four children and his income from 20 hours per week bus driving was $617.60 per week. I am satisfied that Mr Peters has very limited financial means and I accept the evidence of Mr Peters’ and his son about the amount of alcohol consumed. I also accept his evidence that he did not drink rum and coke that night and that he arrived home before midnight.

[16] Elderado also alleged that Mr Peters was not cleaning the bus properly.

[17] The evidence of the diary entries suggests that this matter was raised on Saturday 23 August 2014, Sunday 31 August 2014, Saturday 29 November 2014, and Saturday 7 March 2015. The next diary entry about this matter is on Saturday 6 June 2015 when Mr Eldred noted that the bus was very tidy and clean.
[18] The only other occasion when the matter is raised negatively is the diary entry of Wednesday 23 September 2015:

“Talked to Rick. Picked up bus at Ricks. Not cleaned outside, door left open bus, outside in the rain. Cats been inside, Inside clean but smell’s terrible. Not washed outside. “he said its not too bad” This was 5 days after school had finished for the term. I finished washing it at home.”

[19] Given that this occurred in the school holidays there is no evidence that the bus was not clean for transporting the school children. Mr Eldred noted that the bus was sort of cleaned a few days later on Saturday 26 September 2015.

[20] Mr Eldred lives a long way from Dargo and as a result he mostly came to check the bus on a Saturday. Mr Peters gave evidence, which I accept, that he was very busy with the children and sporting activities on a Saturday and as a result did the bus cleaning for the following week on a Sunday. Mr Peters is a single father who is the sole carer of five children. Mr Peters was not home when Mr Eldred checked the bus on a Saturday.

[21] Mr Eldred also raised that Mr Peters failed to complete the pre- trip inspection entries for 14 and 15 May 2015. Mr Eldred suggested that Mr Peters had not been doing the safety checks properly. There are diary entries which support the failure to fill out the pre-trip inspection entries on 14 and 15 May and also that on 17 May Mr Eldred discovered a flat tyre which had not been reported. Mr Eldred notes in the diary that he rang Mr Peters and told him to make sure that he does the safety inspections in the future. I accept that this occurred. There is no evidence that Mr Peters failed to carry out the safety checks after 17 May 2015.

[22] Mr Eldred also raised that Mr Peters had been using the bus for unauthorised travel. Mr Peters denied this. There is no reference to this matter in the diary entries. It is apparent in the main these issues have been raised for the first time since the dismissal. I am not satisfied that unauthorised travel was a reason for the dismissal.

The small business code

[23] The initial question to be determined is: Was the dismissal consistent with the small business code? As the dismissal was not a summary dismissal the applicable section of the code is as follows:

“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

In 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.”

[24] Mr Peters did not request a support person at the meeting. The meeting occurred without notice and so Mr Peters did not have any opportunity to request a support person.

[25] Mr Eldred provided diary entries as evidence that he had raised various issues with Mr Peters prior to the dismissal and of the matters raised at the dismissal meeting. However, there is nothing in the diary notes that suggest there was any warning that Mr Peters would be dismissed if he failed to improve his conduct or performance. There was no written warning or termination letter.

[26] For the dismissal to be in accordance with the code the following questions need to be resolved in the affirmative:

● Did Mr Eldred advise Mr Peters as to why his job was at risk?
● Was Mr Peters given a warning by Mr Eldred in writing or verbally that he may be dismissed if there was no improvement?
● Did Mr Peters have the opportunity to respond to the warning and was he given a reasonable opportunity to rectify the problem having regard to Mr Peters’ response?
● Was the reason for the dismissal a valid reason based on Mr Peters’ conduct or capacity to do the job?

Did Mr Eldred advise Mr Peters as to why his job was at risk?

[27] Mr Eldred’s diary entry summarising the dismissal meeting and Mr Peters’ evidence are largely consistent. The diary entry reads:

“Saturday 17th October 2015. Termination day for Rick Peters. Talked to Rick about putting him off and getting another driver, (Bruce Edwards) my relief driver. I told him “his job was terminated”. Wasn’t happy as can be expected. Explained to him the alcohol and the pub were a culture up here in Dargo. Told him that being in the pub drinking on a Wednesday night and drinking beer and Bundy’s up to 12.00- 1.00 at night then getting up at 6.00am to do the bus run at 7.00am was “not on” and a serious offence under out D/Alcohol policy. He said “he wouldn’t have thought that he would be over .000 the next morning.” I told him about the other incidents. 1. Person saw him at the Lindenow pub during a school day with some fellows and had a beer, glass was in front of him, got a six pack and got in the bus. 2. At the Christmas concert I saw him drinking heavy stubbies at the concert and told him he had to drive the next morning on the bus. I said to him don’t forget people are watching you. His reply was “I haven’t had that many”!! Told him I didn’t have to give him 2 weeks notice but gave him the option to work as a part timer for 2 weeks, he said yes.”

[28] Mr Eldred also accepted that at the meeting he said that he would see how the new driver worked out over the next 3 months and if it didn’t work out he would come and talk to Mr Peters about the possibility of him driving again.

[29] Mr Eldred suggested in his second statement that the reference above to “I told him about the other incidents” was a reference to matters other than the alleged consumption of alcohol. I reject this evidence as it is quite plain from the diary entry that the other incidents are the two matters listed immediately after those words.

[30] The Respondent submitted that in the unfair dismissal application Mr Peters said that he understood he had been dismissed due to the drinking issue and also because of alleged failure to properly clean the bus. The Respondent said that this supported a finding that the cleaning issue was also raised at the termination meeting. I am satisfied that the cleaning issue was raised with Mr Peters on several occasions by Mr Eldred prior to the dismissal and Mr Peters was therefore aware that this was an issue of concern for Mr Eldred. However, I prefer the evidence of the diary entry and Mr Peters that it was not raised on 17 October 2015. The evidence of Mr Peters’ daughter concerning what Mr Peters told her immediately after the dismissal also supports this conclusion. When questioned Mr Eldred was not sure that he had raised matters other than the drinking matter at the meeting on 17 October 2015. He only considered it “possible” that he had raised other matters at the meeting.

[31] I am satisfied from the diary entry and from the evidence of Mr Peters that Mr Eldred had decided to dismiss Mr Peters prior to the meeting and that the purpose of the meeting was to inform Mr Peters of the dismissal and the reason for the dismissal. There was no meaningful opportunity for Mr Peters to respond or influence Mr Eldred’s decision. Mr Eldred did tell Mr Peters why he was being dismissed but he did not tell Mr Peters why his job was at risk at the dismissal meeting.

Was Mr Peters given a warning by Mr Eldred in writing or verbally that he may be dismissed if there was no improvement?

[32] Mr Peters was not given any written warnings. However, I am satisfied that although Mr Eldred did not explicitly tell Mr Peters that his job was at risk he did raise the issues of concern with Mr Peters and give him an opportunity to respond. Mr Peters gave evidence that he understood that in respect to the issue of drinking this was serious and that driving when not 0.00 alcohol could put his job at risk, even though Mr Eldred did not specifically say this.

[33] I am satisfied that Mr Peters was on notice of the need to properly clean the bus, to complete safety checks and to not drink such quantities of alcohol in the evenings as would risk being over 0.00 in the morning. I am satisfied that the issue of cleaning the bus was raised on a number of occasions, the last being on 23 September 2015. The issue of the completion of the safety checks was raised on one occasion. The issue of blood alcohol was raised on three occasions.

[34] The diary entries do not suggest that Mr Eldred warned Mr Peters that his job was at risk. However, they do confirm that he raised the matters with Mr Peters and provided him with the opportunity to respond.

Did Mr Peters have the opportunity to respond to the warning and was he given a reasonable opportunity to rectify the problem having regard to Mr Peters’ response?

[35] I am satisfied that Mr Peters had the opportunity to respond to the issues raised, however, as discussed earlier I am not satisfied that Mr Peters was warned that his job was at risk.

[36] In respect to the issue of the safety checks this matter was only raised once. It was not raised at the termination meeting. I am not satisfied that Mr Peters failed to rectify this problem.

[37] In respect to the cleaning Mr Peters’ response that he did not do the cleaning on Saturday but on Sunday was a reasonable explanation which does not seem to have been taken into account by Mr Eldred. The diary notes confirm that Mr Peters was not at home on the Saturdays when Mr Eldred visited and the conversations about these matters occurred subsequently by telephone. Mr Eldred was aware that Mr Peters was not in a position to clean the bus on Saturdays. It is not unreasonable for Mr Peters to clean the bus on Sundays for the work on Monday. That said some of the alleged cleaning deficiencies related to other matters. Given the matter was first raised in 2014 and was raised on a number of occasions I am satisfied that Mr Peters had a reasonable opportunity to rectify the problem. I note that Mr Eldred considered that the bus was cleaned well when he saw it in June. The only subsequent incident was in the school holidays.

[38] In respect to the drinking issue. I am satisfied that Mr Peters responded to the issue about not going into the pub during the day by ceasing that activity. There is no suggestion that it was repeated after the isolated incident in 2013. I am satisfied that there is similarity between the issues reported in December 2013 and the final incident in May 2015.

[39] The requirement for a reasonable opportunity to improve in the small business code is in the context of a warning that a person’s job is at risk. In my view the opportunity to improve in this context is quite different from an opportunity to improve in response to a general or specific concern or instruction raised by an employer. I am not satisfied that Mr Peters was given a warning that his job was at risk and as a consequence he was not given an opportunity to improve in that context.

Was the reason for the dismissal a valid reason based on Mr Peters’ conduct or capacity to do the job?

[40] I am not satisfied that the reason Mr Eldred gave Mr Peters for the dismissal on 17 October 2015 was a valid reason based on Mr Peters’ conduct or capacity to do the job. I am not satisfied that there was or is a reasonable basis to conclude that Mr Peters was not fit to drive the bus on the three occasions in question.

[41] In respect to the first incident in May 2013 I accept Mr Peters evidence that he did not consume any alcohol. The complaint was that there was a pot of beer in front of Mr Peters. Mr Peters denied that he consumed alcohol at the time and there is and was an inadequate basis to doubt his evidence. The change in the report from the pot of beer in front of Mr Peters to the informant saw Mr Peters drink the beer occurred two and a half years after the event. There was no direct evidence before me that supported the conclusion that Mr Peters had consumed alcohol. I accept that it was inappropriate for Mr Peters to go into the pub to get the pizza and the six pack of beer on his way home in the school bus with his children sitting in the bus outside the pub. This was damaging to the reputation of Mr Eldred’s business. However, this incident occurred two and a half years prior to the dismissal and there is no reason to doubt Mr Peters evidence that after the matter was raised with him on that occasion he never went into the pub again during the working day.

[42] In respect to the second incident at a Christmas community function in December 2013 it is not in dispute that Mr Peters left the premises at 9pm and was then working at 7am the next morning. There is no evidence of drunken behaviour. There is no evidence that contradicts Mr Peters’ evidence that he consumed 4 stubbies over five hours prior to 9pm. Mr Eldred himself was drinking alcohol and was also driving the school bus the next day. There is insufficient basis to conclude that Mr Peters would have been over the limit the next morning. It is not reasonable for Mr Peters to be excluded from participation in community events because he is a bus driver.

[43] In respect to all three incidents Mr Peters denied that he drove a bus with alcohol in his system. In respect to the third incident in May 2015 Mr Peters was at the pub until at least 11.30pm. This is a matter of concern given his school run the next day. However, I accept the evidence of Mr Peters and his son that he did not drink spirits and that he consumed four or five beers throughout the long evening. I accept that this incident raised reasonable doubts and justifiable concern. In respect to this incident the matter was raised with Mr Peters shortly after the incident. Mr Eldred told Mr Peters that it was the third time he had raised this issue with him. However, Mr Eldred did not suggest any further disciplinary action. Mr Eldred conceded that he gave Mr Peters the benefit of the doubt when Mr Peters assured Mr Eldred, when challenged about the incident, that he did not think that he would be over the 0.00 limit in driving the bus the next morning. Nothing then occurred for five months.

[44] Mr Eldred took no action to submit Mr Peters to some form of alcohol test during that period. Mr Eldred conceded that three people had told him that is what he should do prior to the dismissal. I can see no satisfactory reason why Mr Eldred could not have taken such action if he was concerned about Mr Peters’ fitness. Mr Eldred says that he was concerned that if he did require Mr Peters to be tested Mr Peters may have lost his licence and his livelihood. This does not make sense to me. By sacking Mr Peters he has damaged his livelihood in circumstances where there was a basis for concern but insufficient basis to assume that Mr Peters would have failed an alcohol test.

[45] There is no evidence of any repeat of drinking behaviour of concern during the five month period between the last incident and the dismissal.

[46] I am not satisfied that Mr Eldred had strong concerns that the safety of passengers were at risk at the time of the dismissal given that Mr Eldred allowed Mr Peters to drive for five months after the incident which formed the basis for the termination and then for a further two weeks after the dismissal and in addition Mr Eldred told Mr Peters that he would consider taking him back if the replacement did not work out.

[47] The failure to take action for five months in respect to the issue when combined with the absence of sufficient evidence to positively conclude that Mr Peters was not fit to drive mean that the incident of May 2015 in the context of the incidents more than a year earlier could not constitute a valid reason for termination. If there was clear evidence of driving the bus with alcohol in his system then this could, depending upon the circumstances, be a valid reason for dismissal.

[48] Mr Eldred gave evidence that he failed to act for five months because he was busy and it took time to consult with relevant authorities and his employer organisation. He said that he talked to others including the other family whose children Mr Peters transported. Given the size of the business and the geographic isolation I can accept that some delay is justified. If Mr Eldred had told Mr Peters when he first raised the May 2015 incident that he was considering further disciplinary action against him including termination of employment and if there had then been a delay of a week or two prior to the termination meeting, this may have been reasonable in the circumstances. However, it is not suggested that Mr Peters was told that further disciplinary action was being considered and the delay of five months is totally unreasonable.

[49] The failure to complete the safety checks is an isolated incident and could not form a valid reason for dismissal. I am not satisfied that Mr Peters failed to rectify the problem. If there was clear evidence that he had failed to respond having been given a reasonable opportunity to improve, this could have been a valid reason. Furthermore, I am satisfied that this issue was not a reason given for dismissal at the time.

[50] The poor quality of cleaning could constitute a valid reason for dismissal if at the time of the dismissal there was evidence that the problem was continuing. However, I am not satisfied that this issue was raised at the dismissal meeting. I am also satisfied that in June 2015 Mr Eldred noted that the bus was properly cleaned and the only subsequent issues raised were in the school holidays. Although, I accept that the problems observed in the school holidays four weeks prior to the termination meeting were reasonably serious. I am also satisfied that most of the other incidents were observed by Mr Eldred on a Saturday when Mr Peters was not present and that Mr Peters did the weekend cleaning of the bus on a Sunday. I am not satisfied that there was sufficient basis to conclude that Mr Peters was continuing to fail to comply with reasonable directions about cleaning the bus to an acceptable standard.

[51] Mr Eldred gave evidence to the effect that he would probably not have dismissed Mr Peters on 17 October 2015 if it were not for the drinking issue. This reinforces my view that the other issues are not a valid reason for dismissal.

Conclusion in respect to the small business code

[52] I am not satisfied that Mr Eldred advised Mr Peters why his job was at risk. Mr Eldred informed Mr Peters why he was being dismissed but that was after the decision was made. Mr Eldred informed Mr Peters about concerns he had with conduct and performance at various times during his employment but I am not satisfied that Mr Peters was warned by Mr Eldred in writing or verbally that he may be dismissed if there was no improvement. As there was no warning Mr Peters did not have a reasonable opportunity to respond or rectify the problem in the context of a warning. Mr Eldred did however raise the concerns about the cleaning with Mr Peters and he did have a reasonable opportunity to rectify this problem. I am not satisfied that the reason for the dismissal was a valid reason based on Mr Peters’ conduct or capacity to do the job.

[53] I am satisfied that the dismissal was not in accordance with the small business code. I am now required to consider the matters specified in Section 387 of the Act.

Was there a valid reason for termination?

[54] For the reasons outlined earlier I am not satisfied that there was a valid reason for termination.

Was Mr Peters notified of the valid reason for termination?

[55] For the reasons discussed earlier I am satisfied that Mr Peters was told he was being dismissed due to the alcohol incidents which had occurred in 2013 and in May 2015. These reasons were not a valid reason for termination of employment.

Did Mr Peters have an opportunity to respond to the allegations?

[56] I am satisfied that Mr Peters was given an opportunity to respond to the allegations of poor conduct or performance shortly after each concern arose. However, Mr Peters was not given an opportunity to respond to these matters in the context of his employment being at risk. The risk to his employment only became explicit at the termination meeting. At the termination meeting Mr Peters did not have a meaningful opportunity to respond. Mr Eldred had decided to dismiss Mr Peters before the meeting commenced. He went to Mr Peters house with the express purpose of dismissing Mr Peters. The meeting began with the announcement of the dismissal and then Mr Eldred explained the reason for the dismissal. Mr Peters had no meaningful opportunity to influence the decision maker.

Was Mr Peters warned about his unsatisfactory performance before the dismissal?

[57] For the reasons discussed earlier I am not satisfied that the reason for the termination was unsatisfactory performance. The weight of Mr Eldred’s evidence is that the dismissal would probably not have occurred but for the alcohol issue and this was the issue raised at the termination meeting. Mr Peters was clearly advised that the alcohol issue, the completion of the log book and the standard of cleaning were issues at various times prior to the dismissal. I am satisfied that Mr Eldred clearly communicated to Mr Peters that he was required to complete the log book daily and complete safety checks. There is no evidence of failure to carry out this requirement after the direction was given following the flat tyre incident. I am satisfied that Mr Eldred clearly communicated his desire for the bus to be clean. However, the evidence of Mr Eldred and Mr Peters supports a finding that the rules about these matters changed from time to time. The cleaning issue is a performance issue and Mr Peters was told to improve his performance in respect to cleaning on a number of occasions. The alcohol issue relates to conduct not performance. I am satisfied that Mr Peters was aware of the 0.00 alcohol policy from the time he signed it in 2014 and that Mr Peters was reminded of this after the May 2015 incident. There is no evidence that there was any policy provided to Mr Peters during 2013 when the first two incidents occurred. I am satisfied that after the first incident Mr Peters did not go into a hotel during the working day.

To what degree were the procedures followed impacted by the small size of the enterprise and the absence of human resource management expertise?

[58] I am satisfied that the small size of the business and the absence of expertise affected the procedures followed.

Are there other relevant matters?

[59] Mr Peters and Mr Eldred live in small isolated communities a long way away from each other. Contact between Mr Peters and Mr Eldred was therefore sporadic. This made supervision and communication difficult. I consider that this is a factor which made it more difficult for expectations to be clearly communicated, understood and responded to.

[60] There was a degree of informality about the employment given the small size of the business and the nature of the community. As part of Mr Peters’ job he was expected to mow Mr Eldred’s lawns on a Friday. There is nothing improper or unreasonable in this however it underlined the informality of the arrangements. This tends to reinforce the lack of clear rules and communication in the employment relationship which I consider contributed to some of the misunderstandings between Mr Peters and Mr Eldred.

[61] I am satisfied that Mr Eldred relied upon informal reports about two isolated incidents from a small number of people in the community. The separation between Mr Eldred and Mr Peters contributed to this. Of course an employer in the bus industry must take reports from the public seriously but disciplinary action should only occur after proper investigation and on proper grounds.

[62] I also consider it relevant to consider Mr Peters personal circumstances in judging whether or not termination of employment was harsh. Mr Peters lives in a small isolated community where employment prospects are extremely limited. Mr Peters’ flexibility is limited by his role as sole parent for five children. The job and income are of critical importance to Mr Peters given his personal circumstances.

Was the dismissal unfair?

[63] The lack of expertise in the small business is not sufficient to outweigh the lack of a valid reason.

[64] The termination was unfair in that it was harsh, unjust and unreasonable.

What is the appropriate remedy?

[65] Mr Peters seeks reinstatement.

[66] Mr Eldred gave evidence that although at the time of the dismissal he was prepared to take Mr Peters back and he told Mr Peters this, he now does not want to do it. Firstly, he is now more aware of the risks following advice from others. Secondly, he has found out since the dismissal that Mr Peters was using the bus to transport children to football training and this had not been approved. Mr Peters said that he understood that Mr Eldred was aware of this and did not object.

[67] I am not satisfied that the discovery that Mr Peters was using the bus to transport children to football training is sufficient reason to not reinstate Mr Peters. I accept that there has been damage to the relationship between Mr Eldred and Mr Peters. The nature of the work does not require close and constant contact between Mr Eldred and Mr Peters. In the proceeding before me Mr Peters and Mr Eldred behaved in a civilised manner. Mr Eldred is a considerate employer who is concerned about the welfare of his employees. I am not satisfied that the relationship is beyond repair. At the time of the dismissal Mr Eldred was open to reemploying Mr Peters. Nothing Mr Peters has done since has fundamentally changed the objective situation.

[68] The fact that another person has been employed needs to be considered. However, it will rarely be the case that an employee should be denied a remedy for injustice because the employer has filled the position the employee formerly held. I am not satisfied that this should prevent reinstatement in this case. The dismissal was less than six months ago.

[69] I am satisfied that reinstatement is the appropriate remedy. I consider it appropriate to order that reinstatement be to the Applicants former position and that there be continuity of employment.

[70] Mr Peters is also seeking compensation for lost earnings. Mr Peters has not earned any income from employment since the dismissal. Mr Peters has been looking for work with the assistance of Mission Providence Agency. He has been directed to training programs and has applied for training courses. Mr Peters gave evidence that there are limited employment opportunities. Mr Peters has been receiving social security payments but this is not income from employment. I am satisfied that there should be some compensation for lost earnings.

[71] I consider that Mr Peters must accept some responsibility for what has happened. I am satisfied that although there was no valid reason for termination, the employer had reasonable concerns about the bus cleaning and Mr Peters’ behaviour on the night of 21 May 2015 was unwise and did raise reasonable concerns.

[72] Mr Peters should be on notice that he must diligently follow the policies in respect to cleaning the bus, completing safety checks and completing the log each day, and not consuming alcohol in a manner that could lead to him being over 0.00 when driving the bus. Mr Peters should clearly understand that failure to follow these policies will mean that his employment is at risk.

[73] The lost earnings are for the period from 1 November 2015 (Mr Peters was working a period of notice until 30 October 2015) until the date of this decision to reinstate Mr Peters. This is a period of 18 weeks. Mr Peters would not have earned any income during the school holidays which is a period of 6 weeks. Mr Peters would have earned $7,411.20 in the period since the dismissal. I consider that this amount should be reduced by 50% for the reasons discussed earlier. I will order compensation for lost earnings of $3,705.60 to be paid with 14 days. I will provide the employer with liberty to apply to vary the time period for payment.

[74] An Order for reinstatement and compensation for lost earnings is issued separately.

COMMISSIONER

Appearances:

Ms T Ne’emia appeared for the Applicant.

Mr I MacDonald and Mr P Kavanagh appeared for the Respondent.

Hearing details:

2016

Bairnsdale

February 23

 1   Exhibit E2 at para 7.

 2   Exhibit E2 at para 8(vii).

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<Price code C, PR577603>