Mr Sumith Walpola v Transdev Melbourne Pty Ltd T/A Transdev Melbourne

[2016] FWCFB 564

[2015] FWC 7554 [Note: An appeal pursuant to s.604 (C2015/7423 was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 28 January 2016 [[2016] FWCFB 564] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Sumith Walpola
v
Transdev Melbourne Pty Ltd T/A Transdev Melbourne
(U2015/9351)

COMMISSIONER ROE MELBOURNE, 2 NOVEMBER 2015

Termination of employment – alleged unfair dismissal.

[1] Mr Walpola was employed as a bus driver by Transdev Melbourne Pty Ltd or its predecessor continuously from 2007 until 30 June 2015. On 16 June 2015 Mr Walpola was concerned that his driver’s seat was unable to be appropriately adjusted when he took over a bus at the changeover point. Transdev alleges that arising from this incident:

● Mr Walpola returned the bus to the depot without proper authorisation. It is alleged that this was contrary to the policy and procedure that to take a bus off route requires authorisation from the Operations Control Centre (OCC) or other management instruction.
● Mr Walpola in driving the bus back to the depot was unsuccessful in making a U turn and consequently he made a 3 point turn which involved reversing the bus for a short distance. It is alleged that Mr Walpola was not assisted when reversing. It is alleged that this was contrary to policy and procedure and amounted to unsafe and reckless driving.
● Mr Walpola upon returning to the depot had an argument with managers about whether or not the seat was defective and refused a direction to return the bus into service. It is alleged that this was a failure to follow a reasonable direction.
● Upon returning the bus into service following a further direction from Ms Sharma, Area Manager, Mr Walpola then requested a changeover bus by contacting the union delegate rather than through the authorised process of the OCC. It is alleged that this was contrary to policy and procedure that requests concerning bus faults and changeovers go through the OCC. It is also alleged that this was contrary to a direct instruction given by Ms Sharma, Area Manager, a few minutes earlier that if there was any further problem he should contact the OCC.

[2] The facts concerning each of these matters are contested.

[3] It is not in contention and I am satisfied that Mr Walpola:

● Attended meetings on 18 June 2015, 23 June 2015, 24 June 2015 and 30 June 2015 concerning the incidents of 16 June 2015 which formed the basis for the termination of employment.
● Was provided with a show cause letter dated 24 June 2015 which set out in detail the allegations to which he was required to respond. The letter made clear that Transdev was considering whether or not to terminate his employment.
● Did provide written responses to the show cause letter dated 29 June 2015.
● Was represented by his union, the TWU, during the process. The TWU was in attendance at the 30 June 2015 meeting. At the conclusion of that meeting Mr Walpola was advised that he was being dismissed from his employment and that he would be paid in lieu of notice.

[4] It is not disputed and I am satisfied that Mr Walpola is protected from unfair dismissal and that:

● Transdev is a national system employer.
● Transdev is not a small business.
● Mr Walpola was employed for a continuous period of more than six months.
● Mr Walpola was not dismissed for reasons of redundancy.

[5] I am required to consider the factors in Section 387 of the Fair Work Act 2009.

[6] It is not disputed and I am satisfied that:

● Mr Walpola was notified of the reason for the dismissal. If the reason was a valid reason then Section 387(b) has been satisfied.
● Mr Walpola was given an opportunity to respond to the allegations which concerned his conduct. Section 387(c) has been satisfied.
● Mr Walpola was not refused a support person. Section 387(d) has been satisfied.
● The issues raised in the show cause letter relate to conduct not performance and so Section 387(e) is not relevant.
● Transdev is a large employer with human resource management expertise. Sections 387(f) are (g) are not relevant in this case.

[7] The issues in this case are about whether or not there was a valid reason for termination (Section 387(a)) and other factors (Section 387(h)). The issues to be determined are:

● Did the alleged conduct on 16 June 2015 occur?
● To the extent that the conduct occurred what aspects of the conduct were misconduct because they were a breach of reasonable directions or reasonable policy and procedures?
● To the extent that the conduct was in breach of policy and procedures is it reasonable to conclude that Mr Walpola was aware or should have been aware of those policies and procedures?
● Were there prior warnings in respect to similar conduct which are relevant to a conclusion that the conduct on 16 June constituted a valid reason for termination?
● Did the conduct constitute a valid reason for termination?
● Was Mr Walpola denied natural justice during the termination process because he was not given access to all the relevant material, provided with the details and results of the investigation and given the opportunity to address the allegations with the assistance of an interpreter?
● Taking these matters into consideration was the termination harsh, unjust or unreasonable?
● If it was what is the appropriate remedy?

Did the alleged conduct on 16 June 2015 occur?

[8] In respect to the alleged conduct it is not in contention that:

● Mr Walpola was concerned about the lack of capacity to adjust the seat when he boarded the bus at the changeover point near the Keysborough Depot and sought a replacement bus from the Operational Control Centre (OCC).
● The OCC advised that there were no replacement buses at that time.
● Mr Walpola was instructed to transfer the passengers to the next bus and wait for the mechanic to arrive. The mechanic Mr Nekkaraje attended.
● After the mechanic had attended Mr Walpola was still not satisfied about the seat and he returned the bus to the depot. He attempted to do a U turn in Springvale Road and was not successful and consequently had to reverse the bus a short distance as part of a three point turn.
● The matter of the bus seat was then the subject of discussion between Mr Walpola and Mr Sharma, the Workshop Manager and an Assistant Area Manager, Mr Eid in the bus whilst in the depot yard. Mr Pereira was also present in the bus. The discussion was heated.
● Following the discussion Mr Walpola left the bus and went to the depot building. The Area Manager, Ms Sharma directed Mr Walpola to drive the bus and continue his shift. Mr Walpola followed this instruction.
● After travelling one stop Mr Walpola contacted Mr Alexander, the TWU delegate, about problems with the seat. Mr Alexander contacted the depot. Mr Walpola’s bus was replaced.
● Mr Walpola had been on workers compensation for a back injury during January and February 2015 but was cleared for normal duties after 18 February 2015.

[9] The disputed issues in respect to the alleged conduct are:

● Was the bus seat faulty? Did the mechanic find any problem with the bus seat?
● Did the mechanic or the OCC tell Mr Walpola to return to the depot and did Mr Walpola advise the depot or OCC that he was returning to depot?
● Did the mechanic provide assistance with the reversing?
● Is it appropriate and/or common to make a U turn at the location in Springvale Road? Was the bus capable of executing the U turn?
● Were Mr Walpola’s actions in reversing the bus unsafe and reckless driving as stated in the termination letter?
● In the confrontation with Mr Sharma who was the aggressor and did Mr Walpola refuse to drive the bus despite being directed to do so by Mr Eid?
● After returning to drive the bus did Mr Walpola contact the OCC or Mr Alexander or both?

Was the bus seat faulty?

[10] I am satisfied that it is important that drivers have comfortable and properly adjusted seats. If this does not occur it can lead to distraction and increased stress which can impact on driving safety and driver health. However, this is obviously a matter of degree. In some cases the problem with the seat may be an obvious and immediate hazard. For example if the driver could not see the road properly or could not operate the controls of the bus properly or if the seat was unstable. In this type of circumstance it would not be appropriate for the driver to continue even if there was not a replacement bus available. In other cases it may be that the seat is in good working order but its design is sub-optimal or the adjustment of the seat is such that the driver is able to function safely but with sub-optimal comfort. In this type of circumstance the employer may balance the driver’s need for a comfortable seat against other factors such as customer service, cost and the availability of suitable vehicles. Employees and their union may reasonably question the employer’s judgment about these matters.

[11] During the proceedings it became clear that there was some confusion about whether the issue Mr Walpola had with his seat was a problem with the design features of the particular seat model in the bus allocated on 16 June 2015 or a concern that the particular seat was not operating to specifications.

[12] It is not disputed that the seat type is one that is designed to sense the weight of the driver and then rise to an appropriate height. The seat type does not have an adjustment to allow the driver to raise the height manually beyond the height selected by the mechanism. It does have an adjustment to lower the height. Mr Walpola is of the view that in order to ensure driver comfort it is important that the driver be able to adjust the height of the seat upwards. Mr Walpola’s union delegate Mr Alexander gave evidence that supported Mr Walpola in this respect. Mr Alexander and Mr Walpola were critical of some of the older model buses. Transdev conceded that properly adjusted and comfortable driver seats are important and says that they are undertaking an upgrade program to address this issue and reduce injuries to drivers. Mr Walpola gave evidence that he has had a back injury in the past and that it is appropriate for him to sit relatively high so that the base of his spine is higher than his knees. He says that this is also better for visibility.

[13] Mr Walpola says that he was also concerned at some damage to the steering wheel and that the brake pedal was missing a rubber pad. Mr Walpola does not suggest that he raised these issues with the mechanic who was dispatched to deal with his concerns about the bus. I am satisfied that it was the seat problem which was central and that the other problems were relatively minor and the brake pedal cover problem could have been easily and quickly fixed without the disruption caused by the seat incident.

[14] The mechanic, Mr Nekkaraje, gave evidence that he examined the seat and found no fault. Mr Walpola gave evidence that Mr Nekkaraje said that the bus was old and that the seat was not going up to its maximum height. I am satisfied that at least to some extent the conflict in the evidence is explained by the fact that Mr Nekkaraje was focused on whether or not the seat was operating as it was intended whilst Mr Walpola was focused on the fact that he wanted the seat to be higher. I accept the evidence of Mr Nekkaraje that the seat was largely operating as intended and that there were no obvious faults in the adjustment or the pressure sensing mechanism.

[15] I accept the evidence of Mr Nekkaraje that he did not find anything wrong with the seat. I also accept that when the bus was returned to the depot by Mr Walpola Mr Eid and Mr Sharma also looked at the seat and concluded that there was nothing wrong with the seat.

[16] Having observed Mr Walpola in the witness box and having regard to the evidence of the other witnesses I am satisfied that the seat was not comfortable for Mr Walpola because it was not high enough. I am also satisfied that Mr Walpola told Mr Nekkaraje, Mr Eid and Mr Sharma that this was the problem. I am satisfied that the problem with the seat was primarily that it was a model which did not enable the driver to increase the height beyond the height selected in accordance with the weight of the driver. I am satisfied that the seat was operating to specifications or not significantly in variance to its specifications.

[17] I am satisfied that the confrontation that occurred in the bus when it was in the depot was exacerbated by the fact Mr Walpola, Mr Eid and Mr Sharma were focused on different things. Mr Walpola was focused on the fact that the seat was not high enough for his comfort whilst Mr Eid and Mr Sharma were focused on the fact that the seat was operating largely to specifications and was therefore in their view not defective. Mr Eid was particularly focused on the delay to the service and his desire to get Mr Walpola back behind the wheel of a bus.

[18] Transdev says that the driver who had the bus before being relieved by Mr Walpola had no problem with the seat. That driver did not give direct evidence. The comfort and function of the seat is directly affected by the height, weight and preferences of each driver. I do not consider the evidence concerning the other driver to be relevant.

[19] After Mr Walpola took the bus out of the depot for the second time he reported that there was a new and additional problem with the seat. He gave evidence that it was bouncing excessively even when on the smooth surface of the depot yard. He complained about the issue after travelling one stop beyond the depot. It is not in dispute that the bus was then changed over by Transdev. I accept Mr Walpola’s unchallenged evidence that the seat was indeed faulty and not operating to specifications at that time and that it was at that time a risk to safety which justified it being changed over.

Did the mechanic or the OCC tell Mr Walpola to return to the depot and did Mr Walpola advise the depot or OCC that he was returning to depot?

[20] Mr Walpola gave evidence that the mechanic told him that if he was not happy driving the bus he should contact the Operations Control Centre (OCC). He gave evidence that: “I tried to contact OCC via radio. Again, there was no response. I got off the bus and used again had to use my mobile to contact the depot. At this point, I was instructed by the OCC to drive the bus back to the depot. I received these instructions from either the OCC attendant or the mechanic. I do not recall which of them gave me those instructions.” 1

[21] Any instruction to return to the depot could only have occurred after Mr Nekkaraje was unable to resolve the seat issue to Mr Walpola’s satisfaction. That is either just before or after Mr Nekkaraje departed the bus.

[22] An examination of the CCTV footage from the bus shows that:

● Mr Walpola did not make a mobile phone call to contact the depot whilst the mechanic was on the bus or after he left the bus.
● Mr Walpola had the button to contact the OCC in his hand around the time that Mr Nekkaraje left the bus. Ms Clarke noted that Mr Nekkaraje has said that Mr Walpola looked like he was trying to contact the OCC.
● However, the time interval between the mechanic leaving the bus and the bus leaving the curb was only a few seconds. This was insufficient time for there to be a conversation between Mr Walpola and the OCC in which the OCC considered Mr Walpola’s report about the defective seat and gave authorisation to return to the depot.

[23] The audio recording of the OCC contact with Mr Walpola covers a conversation at 8.10am when the problem is reported and the OCC informs Mr Walpola that no replacement bus is available and Mr Walpola says that he does not want to drive the bus because the seat cannot be adjusted high enough and he has had back problems in the past. It also records a second conversation at 8.23am when the OCC informs Mr Walpola that the mechanic will attend and that he is to stay where he is until then. The audio then records a final contact which is simply OCC saying “575 go ahead” and there is no response from Mr Walpola. 2

[24] Mr Nekkaraje gave evidence that he did not instruct Mr Walpola to return to the depot. I accept that evidence. Mr Nekkaraje does not recall many details about the incident. However, I accept his evidence that he does not have authority to direct buses to go off route and therefore he would only have done so if instructed to do so. I am satisfied that he would have recalled a situation where he was so instructed.

[25] I am therefore satisfied that Mr Walpola was not instructed or authorised to return the bus to the depot. I am satisfied that it is obvious that the proper operation of a public transport service requires that buses cannot be taken out of service or returned to the depot without authorisation. I am satisfied that Mr Walpola understood that he should not take a bus out of service or back to the depot without authorisation.

Did the mechanic provide assistance with the reversing?

[26] Mr Nekkaraje did provide assistance to Mr Walpola by putting on the hazard lights on the van to alert any traffic coming from behind Mr Nekkaraje. However, Mr Nekkaraje does not recall signalling to Mr Walpola when Mr Walpola was reversing the bus. Mr Walpola gave evidence that Mr Nekkaraje did signal to him with his hand to assist him in reversing. I did not accept Mr Walpola’s evidence that he had been instructed to return to the depot, however, in other respects I found his evidence to be credible and largely consistent. On some important issues I prefer his evidence to that of others. I do not consider that there is adequate basis to reject Mr Walpola’s evidence that Mr Nekkaraje signalled to him to assist him with reversing the bus.

Is it appropriate and or common to make a U turn at the location in Springvale Road? Was the bus capable of executing the U turn?

[27] Although in the show cause letter it was suggested that Mr Walpola should not have performed a U turn in that location without a spotter and without prior authorisation from a supervisor, it was uncontested evidence that it is common and accepted that drivers make a U turn at this location in Springvale Road to access the depot and for changeovers and bus swaps. I am satisfied that it is both appropriate and common for buses to make a U turn at the location in Springvale Road. It is suggested by Transdev that the OCC would provide instructions to drivers as to how to perform the U turn on each occasion when this occurs. There was no evidence from operators at OCC. I do not find this evidence to be credible. It is not in contention that drivers can only take buses off route when properly authorised to do so.

[28] It was the evidence of Mr Alexander and Mr Walpola that the model of bus involved in the 16 June incident was old and was not one which had generally been used at that depot in the past. They gave evidence that the turning circle on that model bus was inferior to the buses mainly used in the depot. They also gave evidence that the turning circle does vary between different buses of the same model. Mr Alexander said that the variation between models was more significant than the variation between buses of the same model. Mr Sharma was asked to do a U turn in Springvale Road in the same model bus on 16 September 2015, some three months after the incident. He reported that he had no difficulty doing the U turn. Mr Sharma did not use the same bus as that used by Mr Walpola on 16 June 2015.

[29] I prefer the direct evidence of Mr Alexander and Mr Walpola. I found Mr Alexander to be a credible witness. His evidence was measured, clear and free from embellishment. I am satisfied that the turning circle on the particular model bus made a U turn in Springvale Road more difficult. I am not satisfied that it was impossible to make a U turn in the bus driven by Mr Walpola on 16 June 2015, however, I am satisfied that it was difficult. The failure to make the U turn successfully was not wilful or due to dangerous or negligent driving. There may have been an element of misjudgement but in all of the circumstances this was not a serious error warranting discipline. This is particularly the case given that there is no suggestion of any persistent problems with Mr Walpola’s driving ability or performance.

Were Mr Walpola’s actions in reversing the bus unsafe and reckless driving as stated in the termination letter?

[30] Ms Sharma acknowledged that drivers face unpredictable and varying conditions on the road and Transdev trusts their skill and judgement in dealing with this. Ms Sharma acknowledged that this is why the relevant policy document “Driver Handbook” does not mandate a particular response when it is necessary to reverse a bus. The policy states:

“REVERSING

Avoid reversing the bus on the open road and always take the utmost care. A large percentage of bus accidents occur while reversing, even by the most experienced employees.

Never engage or disengage reverse while the bus is moving and reverse over the shortest possible distance. It is best to walk through the interior of the vehicle and check for hazards behind the vehicle before reversing or ask a responsible person to guide you. When using a guide, ensure that you have visual sight of them in your mirrors at all time. If not, stop the reverse until you are able to locate your guide.

Apply the vehicle hazard lights and sound warning device prior to moving the vehicle and, when reversing in the yard, employees must sound the horn three times to avoid potential incidents.”

[31] In evidence there were two versions of a drawing Mr Walpola made of the turning manoeuvre he made on 16 June 2015. The drawings were made during a meeting with management on 23 June 2015. 3 The version attached to Mr Walpola’s statement is clearer. It shows that at the point where he was unable to complete the U turn and needed to reverse a short distance the bus was blocking both lanes of one carriageway of Springvale Road and the back of the bus was in the gap for turning vehicles in the median strip between the two carriageways. The bus was not obstructing the other carriageway. The mechanic’s van was in the gap for turning vehicles in the medial strip between the two carriageways. It is not in dispute that both the mechanic van and the bus had hazard lights on. Mr Walpola gave evidence that he carefully checked that he was not blocking any traffic.

[32] I am satisfied that Mr Walpola:

● Followed the policy of avoiding reversing the bus. He sought to perform the U turn and it was reasonable for him to expect that he would have been able to complete it successfully.
● Took care in carrying out the manoeuvre given the circumstances.
● Did not engage reverse whilst the bus was moving and reversed over the shortest possible distance.
● Did not walk through the interior of the bus before reversing. However, this is not mandatory in the policy and Mr Walpola used his discretion. It may have been hazardous in the circumstances to walk through the bus whilst it was across a carriageway in Springvale Road.
● Did not ask the mechanic to be a guide. However, this is not mandatory in the policy and given that he did not expect to need to reverse the bus is understandable in the circumstances.
● Did receive some guidance and assistance from the mechanic and he was able to see the mechanic throughout the reversing.
● Did apply his hazard lights as did the mechanic.
● There is no evidence one way or another as to whether or not the horn was used.

[33] I am satisfied that on occasion drivers will be unable to complete turns due to road conditions, vehicle characteristics or reasonable error. In those circumstances drivers have to make quick decisions in a stressful situation. There is inevitably some hazard and risk in these situations. To leave a bus in the middle of traffic can be a serious risk. To reverse the bus also creates serious risk. Drivers have to make judgements to minimise risks. It will not always be appropriate to wait for instructions or assistance before acting.

[34] I am satisfied that the policy is reasonable. I am not satisfied that the policy was breached. I am not satisfied that Mr Walpola engaged in unsafe and reckless driving.

In the confrontation with Mr Sharma who was the aggressor and did Mr Walpola refuse to drive the bus despite being directed to do so by Mr Eid?

[35] The CCTV footage shows that there was a significant confrontation in the bus when it was in the depot yard. As discussed earlier I am satisfied that much of the conflict in the evidence can be explained by the different perspectives of Mr Walpola and Mr Eid and Mr Sharma. Mr Walpola wanted a seat which was adjusted higher. Mr Sharma wanted to convince Mr Walpola that the seat was operating in accordance with specifications. Mr Eid wanted Mr Walpola to return to service without further delay given the seat was not broken.

[36] I did not find Mr Sharma to be a convincing witness. Mr Sharma sought to down play the level of aggression he displayed towards Mr Walpola. That aggression is obvious in the CCTV footage. I am satisfied that Mr Sharma did move forward and then leant forward close to Mr Walpola’s face when he was sitting in the driver’s seat demonstrating what he believed was wrong with the seat. The level of aggression is obvious in both the movement and the facial expression. I prefer Mr Eid and Mr Walpola’s evidence where it is inconsistent with that of Mr Sharma.

[37] Mr Eid agrees with Mr Walpola that the issue of damage to the steering wheel was raised by Mr Walpola. Mr Sharma does not recall it being raised. Mr Eid agrees with Mr Walpola that the issue of Mr Walpola’s experience as a mechanic was discussed and that this was the point in the discussion where things became most heated between Mr Sharma and Mr Walpola. Mr Eid says that Mr Sharma said to Mr Walpola words to the effect that if you’re a mechanic show me what we can do to fix the seat. Mr Sharma denied that there was any discussion about Mr Walpola’s abilities or experience as a mechanic. Mr Walpola says that Mr Sharma said that “well if you are a mechanic why are you driving buses.” I am satisfied that Mr Walpola did raise his experience as a mechanic and that Mr Sharma’s response was inappropriate and upsetting to Mr Walpola.

[38] Mr Eid in his statement says that Mr Walpola was loud and aggressive but does not say that Mr Walpola was swearing or abusive. Mr Walpola denies that he was swearing or abusive. Mr Sharma repeatedly says that Mr Walpola was swearing. I am not satisfied that Mr Walpola was swearing or abusive. I am satisfied that Mr Walpola was agitated and upset.

[39] Mr Eid agreed that Mr Walpola was complaining that the seat did not go high enough for him. Mr Sharma denies that Mr Walpola said that the seat did not go high enough and says that Mr Walpola never properly explained what was wrong with the seat. I am satisfied that Mr Walpola did make it clear that the problem he had with the seat was that it would not go up high enough. Mr Walpola clearly told the OCC right from the start of the incident that the problem was that he could not get the seat to go high enough and that he had had previous back problems. 4

[40] Mr Eid says that after the confrontation with Mr Sharma about Mr Walpola’s experience as a mechanic Mr Walpola left the bus and said “sack me I don’t care I am not going to drive the bus”. Mr Eid says that he told Mr Walpola to be careful about what he was saying and that he would stand him down and investigate if he was refusing to drive the bus. 5

[41] I am not satisfied that Mr Eid gave Mr Walpola a direct instruction to drive the bus. Mr Eid does not say this in his evidence. I accept that Mr Eid made it clear that disciplinary action would follow if Mr Walpola refused to drive the bus. Mr Walpola says that he made it clear that he was only refusing to drive the bus whilst it was defective. I am satisfied that he did effectively communicate that he wasn’t going to drive the bus because he believed it was defective.

[42] The first direct instruction to drive the bus came from Ms Sharma shortly after the confrontation in the bus and Mr Walpola obeyed that instruction without further argument or delay.

[43] I am not satisfied that Mr Walpola refused a direct instruction to drive the bus. I am satisfied that the conduct on the bus by both Mr Walpola and Mr Sharma was inappropriate. Mr Walpola did raise his voice inappropriately. Mr Walpola persisted with his position that he was not going to drive the bus because he believed it was defective for longer than was appropriate. This is particularly the case given that he could not show that the seat was not operating to specification. However, in all the circumstance the issues with Mr Walpola’s conduct during the confrontation were not particularly serious and are not a valid reason for dismissal.

After returning to drive the bus did Mr Walpola contact the OCC or Mr Alexander or both?

[44] Mr Walpola says that he contacted the OCC and then he contacted Mr Alexander. Mr Alexander says that when Mr Walpola rang him he said that he had contacted the OCC. Given the confrontation which had occurred it is understandable why Mr Walpola contacted his union representative. As discussed earlier I am satisfied that the defect with the seat was now different from that which had been discussed in the depot. Transdev changed over the bus. I am satisfied that if the bus had not been defective Transdev would and should have brought evidence to this effect. I am satisfied that evidence of the status of the bus was readily available to Transdev. I am also satisfied that Mr Walpola was aware that it was the policy of Transdev that the OCC must be contacted about vehicle defects or requests for bus changeover.

[45] Ms Clarke, the HR Business Partner for Transdev, says that she asked the OCC:

“To provide me with any records of radio contact with Mr Walpola. A copy of the radio contact records is attached to the statement and marked DC1. I understand that the audio of that conversation has also been provided to the Fair Work Commission by TDM.” 6

[46] There was no direct evidence from the OCC. The attached record is headed “”messages for period from 6/16/2015 8am to 6/16/2015 8.24am”. The record has six entries for “orbitals 0575” two at 8.10am, two at 8.23am and two at 8.24am. The bus driven by Mr Walpola on 16 June 2015 was 575 and it was on the orbital route. There are no records for any contacts with any other bus on that day. The document does not claim to extract the results of any search for contacts between the OCC and bus 575 after 8.24am. The recording 7 does appear to cover the contacts during the period between 8.10am and 8.24am. I am not satisfied that it is evidence that there were no contacts with the bus after 8.24am. The contact claimed by Mr Walpola was around 9.30am.

[47] The evidence of Ms Clarke that she asked for all records and her evidence that none were provided which related to the period after 8.24am does raise some doubts as to whether or not Mr Walpola contacted the OCC. However, the record provided also raises doubts as to whether or not the OCC have extracted all relevant records for the period after 8.24am. In the absence of any direct evidence from the OCC or documentary evidence of all calls in the relevant period I accept Mr Walpola’s evidence that he made the call to the OCC and then made the call to Mr Alexander.

[48] Given this finding it is not necessary to determine whether or not Ms Sharma specifically directed Mr Walpola to contact the OCC if he had further problems with the bus.

To the extent that the conduct occurred what aspects of the conduct were misconduct because they were a breach of reasonable directions or reasonable policy and procedures?

[49] I am satisfied that the actions of Mr Walpola in returning the bus to the depot without authorisation was a breach of reasonable policy and procedure. I am satisfied that it is common sense, which should be appreciated by all drivers, that a bus should not be taken out of service or off route without specific authorisation. To do otherwise would be to cause disruption to the bus service and make the management of its human and capital resources impractical and inefficient.

[50] For reasons discussed earlier I am not satisfied that Mr Walpola was guilty of any of the other alleged instances of misconduct. I have found that his behaviour during the confrontation on the bus was inappropriate but given the inappropriate behaviour of Mr Sharma and that Mr Walpola drove the bus when instructed to do so by Ms Sharma, I do not consider that disciplinary consequences were appropriate in respect to that behaviour.

Were there prior warnings in respect to similar conduct which are relevant to a conclusion that the conduct on 16 June constituted a valid reason for termination?

[51] Mr Walpola received a first and final warning letter on 2 April 2015. The warning was issued for allegedly using a mobile phone whilst driving and for the manner in which he reported a faulty warning light over the two way radio. Transdev was concerned that passengers reported concern about the safety of the bus when they overheard the conversation between Mr Walpola and the OCC about the faulty warning light. Mr Alexander gives evidence which raises doubts about the content of the warning letter. On the limited evidence before me I could not make a finding that a first and final warning was proportionate. The show cause letter referred to other earlier alleged incidents but for the reasons given by Mr Walpola they are not relevant considerations. 8

[52] I am not satisfied that the warning letter relates to matters which are similar to any of the issues arising from the 16 June 2015 incident. I am also not satisfied that the “final” warning was proportionate. The warning letter is therefore of limited relevance to my conclusion that taking the bus back to the depot without authorisation was a valid reason for termination.

Did the conduct constitute a valid reason for termination?

[53] For the efficient and effective operation of a public transport service the operator must be aware of where vehicles are at all times, must carefully control and monitor situations where buses are taken out of service and/or are replaced, and must carefully control and monitor events which may impact on the delivery or punctuality of the service. The failure to obtain authorisation before taking a bus back to the depot is in this context a serious issue. I am satisfied that Mr Walpola’s actions in taking the bus back to the depot without authorisation is misconduct which constitutes a valid reason for termination.

Was Mr Walpola denied natural justice during the termination process because he was not given access to all the relevant material, provided with the details and results of the investigation and given the opportunity to address the allegations with the assistance of an interpreter?

[54] There are circumstances where an employee cannot properly respond to the allegations without having access to the full details of the investigation conducted by the employer. In the circumstances of this case I am satisfied that sufficient particulars of the allegations were provided to enable Mr Walpola to respond. The employer did not rely on detailed documents or statements in reaching its conclusions. Essentially the employer relied upon the recollections of those who had been directly involved in the incidents. The employer did view the CCTV footage and hear the OCC audio. Mr Alexander asked for access to these during the process leading up to the termination. This was a reasonable request. Had that request been complied with it is possible that it would have altered some of the conclusions the employer reached. I am satisfied that this resulted in some unfairness but not significant unfairness.

[55] Mr Walpola did not ask for an interpreter during the disciplinary process and he was not refused access to an interpreter. Mr Walpola was represented by Mr Alexander, the TWU delegate. I have already favourably commented upon his capacity. Mr Walpola was represented by Mr Lean, TWU organiser, at the 30 June 2015 meeting. I am satisfied that the TWU would have asked for an interpreter if they considered it was necessary to ensure fairness. I accept that on occasions during the unfair dismissal hearing Mr Walpola had some difficulties communicating in English but those occasions were sporadic. The Fair Work Commission provided an interpreter but the interpreter was only utilised in a sporadic fashion. Given Mr Walpola’s effective union representation I am not satisfied that there was any unfairness because the employer failed to offer to provide an interpreter.

Taking these matters into consideration was the termination harsh, unjust or unreasonable?

[56] Given that I have found that there was a valid reason for termination and that I have found that there was no significant procedural unfairness and that there are no other factors which would suggest that the termination was harsh or unreasonable, I am not satisfied that the dismissal in this case was unfair.

[57] The application is therefore dismissed and an order to this effect is published.

COMMISSIONER

Appearances:

Mr Minucci appeared for the Applicant.

Mr Bower appeared for the Respondent.

Hearing details:

2015

Melbourne

October 21 & 22

 1   Exhibit W1, Statement of Mr Walpola, at para 9.

 2   Exhibit T1.

 3   Exhibit W1, Statement of Mr Walpola, Attachment SW2; and Exhibit T7, Statement of Ms Denise, Attachment DC 4.

 4   Exhibit T1.

 5   Exhibit T4, Statement of Mr Eid, at paras 21 to 23.

 6   Exhibit T7, at para 11.

 7   Exhibit T1.

 8   Exhibit W1, at paras 29 and 30.

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