Mrs Eszter Konya v Transit Australia Pty Ltd T/A Marlin Coast Sunbus
[2015] FWC 4178
•2 OCTOBER 2015
[2015] FWC 4178
The attached document replaces the document previously issued with the above code on 2 October 2015.
In paragraph 79, and in endnote 18, “[2004] AIRC 173” has been changed to “PR943954”.
Amelia Richardson-Dear
Associate to COMMISSIONER SPENCER
Dated 6 October 2015
| [2015] FWC 4178 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Eszter Konya
v
Transit Australia Pty Ltd T/A Marlin Coast Sunbus
(U2015/4121)
COMMISSIONER SPENCER | BRISBANE, 2 OCTOBER 2015 |
Application for relief from unfair dismissal.
Introduction
[1] This decision relates to an application made by Mrs Eszter Konya (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of her employment from Transit Australia Pty Ltd T/A Marlin Coast Sunbus (the Respondent) was harsh, unjust or unreasonable. The Applicant was employed as bus driver and cleaner, but performing the duties of cleaner which included the movement of buses. The Applicant had been employed by the Respondent for over 8 years.
[2] The matter was not resolved in conciliation. A further conference was undertaken with the parties from which Directions and an Order to Produce were made.
[3] The matter was heard before the Commission as currently constituted at the Cairns Courthouse. By consent, the parties filed final submissions in writing. The Applicant was represented with permission by Ms Vicki Toong of Wettenhall Silva Solicitors. The Respondent was represented by Mr Ian MacDonald, National IR Manager of the Australian Public Transport Industrial Association.
[4] At a late stage, prior to the hearing, the Applicant’s representative sought a Hungarian interpreter for the Applicant. A Hungarian interpreter, at that stage, could not be obtained for the dates of the hearing in the Cairns area. Arrangements were made for the interpreter to be linked in to the hearing by video and to have access to the relevant CCTV footage. No interpretation was required by the Applicant. Prior to providing their final written submissions following the hearing, the parties also had access to the transcript.
[5] It is noted that whilst not all of the evidence and submissions are referred to in this matter, all of such have been considered in making the decision.
Background
[6] The Applicant was employed by the Respondent as a bus driver and cleaner, on a full time basis, since 9 October 2006. The Applicant’s employment was terminated on 3 March 2015 due to serious misconduct. The conduct involved related to an incident that occurred on 31 January 2015. That incident involved the Applicant driving a bus in the work yard in order to move it. In the course of the Applicant doing this, the bus she was driving collided into a pole which supported an awning. But for the pole, the bus the Applicant was driving may have collided with another employee, causing potentially serious consequences.
[7] The Applicant asserted that following the collision, she was advised by the Controller, Mr Craig Richardson to go home, and she complied with this direction. The Applicant returned to work the next day (1 February 2015), but was told she had been stood down, by the Controller, Mr Rob Scott, whilst the incident was investigated. The Applicant stated she spoke with the General Manager, Mr Alex Murray, and then went home.
[8] The Applicant stated that on 4 February 2015, Mr Geoff Barden, Senior Controller telephoned her to ask her to attend the depot to discuss the collision. As the Applicant was ill and unable to do so, Mr Barden asked if he and Mr Murray could attend her home. The Applicant submitted that she said she agreed, as she believed it was to be a casual meeting, to provide feedback as to how the collision occurred. It was submitted that the meeting took place at the Applicant’s home from about 2:00pm that same day, where she was asked a number of questions regarding the collision. The Applicant, during the meeting, woke up her housemate, Mr Stephen Kelly, a former employee of the Respondent, to assist her with some questions.
[9] The Applicant stated that she was contacted on 20 February 2015 by Mr Geoff Barden and asked to attend the depot to pick up a letter addressed to her, which had been earlier posted to her by the Respondent but was returned to sender due to being sent to the wrong address. The Applicant attended the depot that same day, 20 February 2015 and collected the letter, dated 13 February, which contained “Investigation minutes” of the first meeting of 4 February 2015, and directed the Applicant to attend another meeting at the depot on 24 February 2015.
[10] The Applicant stated she attended the meeting on 24 February 2015 with her support person, a work colleague Mr Doug Galliford, who was also a delegate of the TWU. Mr Murray, General Manager and Mr Barden, Senior Controller of the employer were also present. The Applicant and her support person were shown CCTV footage of the collision. The Respondent stated that a disciplinary meeting was held with the Applicant on 24 February 2015. Following this, the Respondent issued the Applicant with a “show cause” letter on 27 February 2015.
[11] On 27 February 2015, the Applicant received the show cause letter. The show cause letter asked the Applicant to provide a response by 12:00pm on 2 March 2015, as to why the Applicant’s employment should not be terminated for serious misconduct, and stated as follows:
“…
Dear Eszter,
Show Cause letter
On 24th February 2015 we held a disciplinary meeting with you where myself, Geoffrey Barden (Senior Controller) and your support person Doug Galliford was also present. The purpose of this meeting was to discuss allegations of serious misconduct in relation to the incident that occurred on 31/01/2015 where you drove a bus into an awning narrowly missing another employee. Specifically the following allegations were discussed:
- You failed to operate the bus in a safe manner with due care and attention;
- Your deliberate behaviour of not using a seat belt, not checking gauges along with choosing to focus on the mirrors and not the front window caused you to drive too close to the refuelling awning, a driver and a parked bus;
- As a result, the bus under your control crashed into the awning. This awning acted as a thin barrier preventing the driver from being squashed between the bus you were driving and the bus he was refuelling.
You stated in the disciplinary meeting, that:
- This incident was caused because the brakes on the bus you were in control of failed.
However, during the meeting we confirmed to you that we had already reviewed the CCTV footage and also had the bus fully inspected and tested by Mechanics and it was determined that the bus brakes were in good condition at the time of the incident. You then stated that you had nothing more for us to consider during the investigation process.
As a result, we believe that the allegations outlined above are now proven, this constitutes serious misconduct. You are now required to show cause why your employment with Sun Bus Cairns should not be terminated for serious misconduct.
Please supply us with a written response by 12pm 2nd March 2015. We will consider this written response, and then meet with you further to discuss, and determine an outcome.
As this meeting will be a disciplinary meeting and may result in termination of employment, you are entitled to bring a support person and seek further advice in regards to this letter.
Thank you.
Yours sincerely,
Alex Murray
General Manager, Sunbus Cairns”
[12] The Applicant provided a written response to the show cause letter, dated 27 February 2015. The Applicant submitted she provided this to the Respondent at the depot on 2 March 2015. The response to the show cause letter stated as follows:
“…
Dear Alex Murray,
General Manger, Sun Bus Cairns
I write this letter in response to your request to show cause as to why my employment with Sun Bus Cairns should not be terminated. Firstly, I would like to say that I do understand the seriousness of the incident and sincerely regret any distress caused to Mark Simpson.
I would like to address your allegations from the letter dated 27 February 2015.
- You failed to operate the bus in a safe manner with due care and attention
I disagree with this statement because if anything my quick judgement and actions in using the emergency stop or handbrake prevented a more serious outcome. As such Mark Simpson did not sustain any injury. This is largely due to my long experience in driving and good judgement in a dangerous situation. I regret any damage to the bus.
- Your deliberate behaviour of not using a seat belt, not checking gauges along with choosing to focus on the mirrors and not the front window caused you to drive too close the refuelling awning, a driver and a parked bus.
I was focusing on the mirrors as buses were too closely parked to each other, and I was trying not to damage any bus. The Safety Officer has never advised us or trained us to use a seat belt while shifting buses to the breakdown bay, and parking buses after detailing in the depot.
- As a result, the bus under your control crashed into the awning. This awning acted as a thin barrier preventing the driver from being squashed between the bus you were driving and the bus he was refuelling.
After using the emergency stop, the bus being a large vehicle was still in motion before coming to a complete stop. As such, the bus did touch the post on the left hand side on the fuel bay.
I would like to point out that I immediately got out of the bus to check on Mark Simpson. The Controller Craig and Stephen came over, and Craig took a photo. Craig then re-started the bus and put it into the breakdown bay. As such I cannot recall reversing the bus or even having touched the bus after the impact. Craig asked to me to fill out the KPI form in the office. Mark Simpson arrived in the office; he was in a good mood and joking and I carried on with my usual tasks of cleaning. Well before midnight Craig approached me and told me that he had to send me home. I then went to the doctor because I had a dry throat. On the following day, Sunday 1st February I arrived at work, tried to log on the computer and Rob Scott, the Controller told me I had been Stood Down and sent me home. He questioned me ‘Didn’t Craig tell you last night’? ‘No he hadn’t.’ As I was leaving the yard Alex Murray asked me to explain what happened in the accident from the night before. I said ‘Yes no problem’. So Alex Murray, Rob Scott and myself walked to the sick bay and we talked about the accident involving bus no 2624 XDI.
- This incident was caused because the brakes on the bus you were in control of failed
The bus was fully detailed by Stephen Yield and myself before smoko. I reversed it myself back of the fence line. It was a wet night and the brake pedal does not have a safety rubber cover. The metal brake pedal may have been slippery given the wet conditions, so if the Mechanics determined the bus brakes to be in good condition then perhaps the absence of a brake cover may explain why the brake did not work. I pumped the brake several times and it did not respond. This is why I then used the emergency brake.
In conclusion, in defence of my character and good standing as an employee of Sun Bus for the last 9 years, I would like to state that I have never had an accident, I have never damaged a bus on the road while doing a bus change or at the Smithfield Depot, I have never been convicted of a driving offense or any other offense, I have never had a drinking problem. During Cyclone Yasi I was called upon by Geoffrey Barden (Senior Controller) to move the large buses from the depot, drive to and park them in the Smithfield large public car park. I would not have been asked to do this if I did not have a good standing as a competent and safe driver.
I do not believe that my behaviour constitutes serious misconduct. I would like to reiterate that I did not injure anyone and my quick thinking actions averted a very serious mishap. I would therefore ask to be re-instated as a full time bus Driver/Cleaner.
Yours sincerely,
Eszter Konya
…”
[13] On 3 March 2015, the Applicant was asked to attend the depot, which she did, accompanied by her support person Mr Galliford. It was at this time that she was handed a termination letter with immediate effect. The termination letter, dated 3 March 2015, stated as follows:
“…
Dear Eszter,
Re: Termination of employment
This letter confirms the outcomes following the disciplinary meeting conducted on 24/02/2015 and a Show Cause meeting conducted on 27/02/2015. This meeting was conducted by myself in the role of General Manager. Geoffrey Barden (Senior Controller) and your Doug Galliford were also present.
The show cause meeting provided you with a further opportunity to advise us why your employment should not be terminated following what we determine were proven allegations of Serious Misconduct.
You were given a fair opportunity to further explain your actions/conduct and why it should not result in your termination.
Following the meeting on 27/02/2015 and your formal response to the show cause letter dated 27/02/2015, the company believes that as an experienced driver, you had the skills necessary to avoid this incident from occurring. However, your deliberate behaviour including choosing not to use a seatbelt, not checking gauges and as well as choosing to focus on the mirrors and not the front window and the path ahead caused a serious and imminent risk to:
- The health or safety of a person, and
- The potential reputation, viability or profitability our business.
I have fully considered your response, our evidence and your explanations of your actions/conduct. However, your explanation is unacceptable and on the balance of the evidence presented to me and the extreme seriousness of this incident, I wish to advise you that your employment as a cleaner with Sunbus Cairns is to be terminated.
Your termination is effective 03/03/2014. All monies due to you on termination of your employment, will be paid into your normal wages account upon return of all company property currently in your possession.
Yours sincerely,
Alex Murray
General Manager – Marlin Coast Sunbus”
[14] Video footage of the incident was recorded, and was included as an exhibit 1 in the proceedings. The CCTV footage shows that, but for the support of the awning, the bus the Applicant was driving would have collided with another employee refuelling a bus from a petrol bowser.
[15] The parties were in dispute as to the cause of the incident.
[16] The Applicant was working as a cleaner at the time of the incident, but has a current MR license, enabling her to operate buses.
[17] The Applicant alleged she was denied procedural fairness and an adequate opportunity to respond to the Respondent’s issues. The Applicant sought compensation as remedy.
Legislation
[18] The application was made pursuant to s.394 of the Act, which provides as follows:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3)...
[19] Prior to considering the merits of the matter the Commission must decide those matters prescribed by s.396 of the Act as follows:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[20] There is no dispute that the application was filed within the time period prescribed. The Commission’s file indicates that the application was filed on 19 March 2015. The originating application stated that the dismissal took effect on 3 March 2015. As the date of termination is not disputed between the parties, the application was made within the period required in s.394(2) of the Act.
[21] A person is protected from unfair dismissal, at a time, if that person satisfies those matters prescribed by s.382 of the Act, as follows:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[22] There is no dispute between the parties that the Applicant had completed the minimum employment period and was not a high income employee. No other jurisdictional objections were made by the Respondent. The Applicant was a person protected from unfair dismissal at the time of dismissal.
[23] The Applicant alleged that she has been unfairly dismissed within the meaning of s.385 of the Act which states as follows:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC 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.
[24] There is no dispute that the Applicant is a person who has been dismissed. Those matters in ss.385(c) and (d) do not arise.
[25] The Applicant has alleged that the dismissal was harsh, unjust or unreasonable. The Applicant sought compensation. In considering whether the Commission is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account those matters specified by s.387 of the Act, as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.
[26] Regulation 1.07 of the Fair Work Regulations 2009 provides the definition of serious misconduct, as follows:
1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.
Submissions and Evidence
(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
[27] It was submitted on behalf of the Applicant that the accident was not caused by any deliberate action, or carelessness or recklessness, on the Applicant’s part. The Applicant submitted that she had twice attempted to engage the foot brake of the bus with her right foot, however, the foot brake did not engage, and the bus was dramatically brought to a stop by the pole of the awning, and therefore avoiding an injury to another employee.
[28] At the time of the collision, Mr Mark Simpson, the Applicant’s co-worker, was refuelling another bus and was positioned in between the bus that the Applicant was driving and his bus.
[29] While the Applicant admitted the collision had potentially serious consequences for the safety of her co-worker, she argued that the collision did not occur as a result of her own deliberate behaviour. The Applicant submitted that none of the behaviours alleged by the Respondent, contributed to the collision.
[30] The Applicant submitted that it was unclear as to what the Respondent submitted was the reason for the Applicant’s dismissal. The Applicant submitted that Mr Matthew Campbell gave evidence that the reason for the Applicant’s dismissal was the Applicant “didn’t drive with due care and attention” 2 and also suggested that there was wilful misconduct on the part of the Applicant as she “didn’t look forward. The fact that she continually looked in her mirrors, I would say is a deliberate action”3. The Applicant submitted that this was a different reason from that contained in the letter of termination, which was relied on by Mr Alex Murray. It was submitted that the evidence of the Respondent differed as to whether the Respondent was relying on R107(2)(a) or R107(2)(a) and (b).
[31] The Applicant submitted there was no nexus between the collision and her not wearing a seat belt, and that this was conceded by the Respondent 4, and that evidence of Mr Stephen Kelly5, the Applicant’s house mate and a former employee of the Respondent (employed as a bus driver for the last two months of his employment with the Respondent, and employed in the wash bay at the Smithfield depot for approximately 7 years prior to that) and the Applicant6 demonstrated that it was common practice, within the Respondent company, not to wear a seat belt when driving within the depot.
[32] The Applicant refuted the allegation that her failure to check the gauges contributed to the collision, and submitted that, given it was a fully automatic bus, if the air pressure in the bus was insufficient for safe driving, warning lights would have flashed and the bus would not have moved. The Applicant submitted that this was conceded by Mr Simon Thorpe, leading Hand at the Mac Peak Crescent Depot, called as a witness by the Respondent 7.
[33] The Applicant also refuted the allegation that she focused only on the mirrors, rather than the path ahead, submitting instead that the CCTV footage 8 demonstrated she checked her mirrors, and then proceeded to look out of the front window as she was driving.
[34] The Applicant further refuted the Respondent’s submission that her conduct (not checking gauges and focussing on rear vision mirrors) was in fact a breach of the work health and safety policies of the Respondent. The Applicant submitted in this regard, that the Respondent’s health and safety policy does not specifically require an employee to check gauges and not focus on rear vision mirrors when moving buses. It was submitted that the Applicant did take proactive steps for workplace safety by pressing down on the foot brake of the bus, and the brake failed to engage. The Applicant submitted that she was never provided with the copy of the traffic management plan, which Mr Murray of the Respondent stated was put in place to mitigate safety issues in and around the depot.
[35] Further, Mr Murray acknowledged in his evidence that he could not confirm whether Ms Konya was provided a copy of the traffic management plan:
“PN 550
So, Mr Murray, just to summarise what you’ve just said, you have no knowledge of Mrs Konya actually being provided with a copy of the traffic management plan?---I have no knowledge of it being provided to her but I have a belief that - - -”
[36] The Applicant submitted further that she was not careless or reckless and that the CCTV footage 9 shows that she twice attempted to engage the foot brake prior to the collision. She submitted she was not responsible for the foot brake’s failure. The Applicant submitted that the evidence of Mr Murray, Mr Simon Thorpe and Mr Campbell was that they conceded that the CCTV footage showed that the Applicant attempted to push down on “something”.10 The Applicant submitted that on the evidence, it was clear that the Applicant had attempted to engage the foot brake of the bus prior to the collision and had done so in a timely manner.
[37] The Applicant conceded in submissions that the incident may have caused a serious and imminent risk to the health and safety of a person or the reputation, viability or profitability of the employer’s business, however, it was submitted that it was not the Applicant’s conduct that caused this risk. The Applicant therefore submitted that there was no valid reason for the dismissal.
[38] The Respondent submitted that the evidence, which included admissions from the Applicant and CCTV footage, showed that at approximately 22.32 on 31 January 2015, the Applicant drove a bus, identified in the evidence as bus 2624, towards the fuel bay in the depot in such a way that a serious accident was avoided only because of the presence of a fuel bay pole, which prevented the bus driven by the Applicant running into employee Mark Simpson, who was refuelling his bus.
[39] The Respondent relied upon Regulation 1.07 – Serious misconduct, and submitted there was a valid reason for the termination of the Applicant’s employment. It was submitted by the Respondent that the CCTV footage and the evidence of Mr Matthew Campbell 11, a member of the Respondent’s investigating team, provided a detailed and valid reason for the termination of the Applicant. The Respondent submitted that the CCTV and witness evidence, (including that of the Applicant), reflected the substantial seriousness of the incident, which was life threatening. The Respondent submitted that there cannot be a higher basis for termination than the imminent risk to life.
[40] The reasons for the termination of the Applicant were detailed by Mr Matthew Campbell in giving his evidence in cross-examination as follows:
“PN1052
So what was the reason at the end of the day, ultimately, for recommending Mrs Konya’s dismissal? So what was really the reason for her dismissal? So, going through the whole investigation, obviously then you raised it yourself, she has, you know, significant experience in operating a heavy motor vehicle. When she operates a vehicle you can clearly see in the CCTV – and this is from my viewing of the CCTV – she gets in the bus, she does the checks that she needs to do. She does what she needs to do to start the bus driving, which indicates that by doing that - and I’m sure in the other statement she would have had this as well - that the bus could be driven. She doesn’t look directly forward when she’s driving a heavy vehicle which weighs about 14 tonnes. She looks in her mirrors the whole time to try and look at the bus either side of it. She doesn’t pay due care and attention to driving, which ultimately results in what happens. The outcome of that could have been that this would have – I suppose I can’t say that. We’re very fortunate that this is only in the situation that it is. The outcome could have been very serious of that. If that pole hadn’t have stopped the bus, I would have said this would have been at least a serious disability to Mr Simpson or a fatality.
PN1053
So that was the reason for her dismissal? Yes. She didn’t drive with due care and attention.
PN1054
So not driving with due care and attention, that’s the reason you’re putting forward for her dismissal. Would you say that there was any wilful misconduct there? Wilful meaning deliberate? I would say by the fact that she (indistinct) using the words, I would. When she drives a bus she knows exactly what she’s doing. She has been driving the bus for nine years. She has been doing that role for pretty much – sorry – eight and a half years. she has been doing that role for the whole time. She knows that she needs to look forward when you’re driving a heavy vehicle. That’s what you’re taught when you have an MR licence. The fact that she didn’t look forward. The fact that she continually looked in her mirrors, I would say is a deliberate action.”
[41] Mr Campbell also gave evidence in relation to the layout of the yard, as follows:
“PN1109
In looking at that incident, are there associated issues in terms of the design and what’s being asked of drivers in that yard? I would say it is a factor but I would not say it is a significant contributing factor.
PN1110
All right. What’s the factor? Can you explain to me what the factor is? The layout. Exactly what you put to me. The layout of the yard.
PN1111
Well, all I – I haven’t visited the yard? Yes, yes, that’s fine.
PN1112
That’s the layout of the yard. So what’s your assessment of that? So the yard is – as most bus depots are, the yard is tight and so people need to drive with due care and attention to operate safely within that yard.”
[42] Mr Campbell also gave evidence as to the review following the incident.
“PN1116
Just so I understand what you’re reviewing as an outcome of this incident, is that what you’re reviewing, or? That’s one very small part of what we’re reviewing.
PN1117
Is the review to enlarge that particular - at the moment there’s a gap of four metres, is that correct? The space itself will never change. The block is what the block is but it’s about better utilisation of that space.
PN1118
What sort of things in terms of a safety analysis and preventative measures would you consider that should be brought to the review? So, trying to think of how to answer that specifically in relation to the incident. The way buses are driven in and out of the yard for the cleaners to then access will be looked at.
PN1119
Nothing in relation to that bowser refuelling, the specifics of that incident? Or maybe that is what you’re saying to me? No. So it’s nothing - the incident will be considered but it will be looked at holistically about what is the best way to deal with buses in this yard, how to move buses around this yard.”
[43] The Respondent submitted that the Applicant’s explanation for the incident was not supported by the CCTV footage, nor subsequent parking and testing of the brakes, which were without issue.
[44] Mr Thorpe conceded in his evidence however, that it was possible that there was not sufficient room available for the Applicant to stop the vehicle:
“PN 890
All right. And so are you able to draw any conclusion about her operation of the bus? Of the buses, and generally in her role?---I believe that’s – Ms Konya’s operated vehicles for some time but it is possible that there wasn’t sufficient room for that vehicle to stop during 12 and a half tons of bus. It was quite a small space that it was operating in. There’s probably 17 or 18 meters’ distance between where the incident happened. You know, it’s hard to say what Ms Konya was doing at the time but I didn’t find a fault with the vehicle.”
[45] The Respondent submitted it decided to terminate the Applicant only after a comprehensive investigation, and after the consideration of the Applicant’s response.
[46] The Respondent considered the primary reason provided by the Applicant for the incident, being that the brakes failed. It was the Respondent’s submission that the Applicant’s evidence cannot be believed, as the evidence indicates that the brakes were working before and after the incident and also after a significant test regime instigated by the Respondent, to check the veracity of the Applicant’s explanation.
[47] The termination letter referred to the actions of the Applicant causing ‘serious and imminent risk’ to the health and safety of a person and to the potential reputation of the Respondent.
[48] The Respondent submitted that the reason for termination was valid, on the basis of Regulation 1.07 (2) (b) (i) and (ii). Notwithstanding the notice of termination, which referred to ‘deliberate action,’ the Respondent contended that the incident itself was, at best, gross recklessness on behalf of the Applicant and would meet the definition in Regulation 1.07.
(b) whether the person was notified of that reason; and
[49] The Applicant conceded that she received notice of the Respondent’s proposed reasons for dismissal in the letter of 27 February 2015, but not before. The Applicant submitted that the letter of 13 February 2015 (received on 20 February 2015) was the Applicant’s first notification that her employment was at risk, but it stated that it was only at risk if the Respondent established a breach in relation to the collision, and therefore, the Applicant submitted, it did not amount to a notification of the reason for dismissal pursuant to s.387(b).
[50] The Applicant further submitted that, given her need to seek assistance in preparing any written response, it is highly improbable that she submitted a response to the Show Cause Letter on the same day that she was given the Show Cause Letter, as suggested by the Respondent. The Applicant submitted that evidence of the Applicant and Mr Stephen Kelly demonstrated that the Applicant prepared her response to the Show Cause Letter on the weekend of 28 February 2015 and 1 March 2015 and then delivered her response to the Respondent on 2 March 2015.
[51] The Respondent submitted that they provided a show cause letter which specifically outlined the nature of the allegations against the Applicant as:
- Failing to operate the bus in a safe manner with due care and attention;
- Deliberate behaviour of not wearing a seat belt, not checking gauges along with choosing to focus on the mirrors and not the front window
[52] The Respondent submitted that the termination letter also provided cogent reasons for the termination, and further, that the only “deliberate behaviour” they referred to was the illegal use of a seat belt.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
[53] The Applicant was provided with an opportunity to respond in writing by way of the show cause letter of 27 February 2015. She was given 3 days to provide a written response (including the weekend), and she provided the response on 2 March 2015.
[54] However, the Applicant submitted that the reasons for dismissal were “contextualised and detailed” in the second meeting (held on 24 February 2015), at which the Applicant did not have access to an interpreter, and it was submitted that this “affected her capacity to fully engage in the process of investigation and respond appropriately to the allegations against her.”
[55] She submitted further that at this second meeting, when the CCTV footage was shown to her, she could not see the CCTV clearly as the screen was facing away from her and the footage was unclear. In her witness statement, the Applicant states, “As the CCTV footage started to play, I said to Doug, “Would you watch it for me; I can’t see it. You are a driver, you know what to watch out for.” She submitted that not being given an opportunity to properly view the footage prevented her from addressing it in her written response to the show cause letter.
[56] The Applicant submitted further that her cultural and linguistic background was not taken into account during this second meeting, where the Respondent says it discussed mechanical and testing issues with the Applicant. As English is the Applicant’s second language, she was not able to follow the conversation, and as such was not provided an opportunity to properly respond to the Show Cause letter.
[57] The Applicant relied on the Decision in IGA Distribution (Vic) v Nguyen 12where the Full Bench found that not having access to an interpreter during the Company’s investigation of the incident, affected the employee’s capacity to engage in the process and respond to allegations against him, and therefore contributed to the unfairness.
[58] The Applicant argued further that given the one day turn around between her response of 2 March 2015, and dismissal on 3 March 2015, the Respondent had already made up its mind to dismiss her.
[59] The Respondent submitted that the evidence indicated the Applicant was able to adequately respond during the initial interview on 4 February 2015 (at her house), on 24 February 2015 (at the disciplinary meeting), and on 27 February 2015 (when the Applicant provided a written response to the Show Cause letter) and finally on 2 March 2015. It submitted further that the Applicant’s claim that she did not understand the circumstances, due to her cultural and linguistic background, was baseless.
(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
[60] The Applicant acknowledged she was allowed a support person at all of the meetings and the letter dated 13 February 2015 informed her of this. However, the Applicant was only informed of the second meeting on 20 February 2015, when she picked up the letter, dated 13 February 2015, which had been returned to the depot after being sent to a wrong address. The Applicant submitted that the notification on 20 February 2015 of a meeting on 24 February 2015 did not give her sufficient time to arrange for her Union representative Mr Vieritz to attend with her - and instead she was “forced” to have Mr Galliford attend with her.
[61] The Applicant submitted further that, prior to the first meeting on 4 February 2015 at her home, she was not informed that it was for the purposes of investigation; that her employment was at risk; or that she was entitled to have a support person present with her.
[62] The Applicant refuted the Respondent’s allegation that Mr Stephen Kelly attended the first meeting (at the Applicant’s house), as a support person, and stated he was woken up mid way through the first meeting, when the Applicant required clarification on an issue, and that this was supported by the minutes provided by the Respondent.
[63] Further, in relation to the first meeting on 4 February 2015, the Applicant gave evidence that while she was aware the meeting would be about the accident, 13 she was not aware of the nature of the meeting when it was put to her that the meeting could be arranged for another date, and that this impacted on her decision to proceed on that day, without a support person.
“PN221
And do you recall that it was said to you – I think it was said to you by Mr Murray, that because Mr Kelly was asleep, the meeting could be deferred and another date set. Do you recall that?---Could be because I was sick. I was called in the base to come to the meeting by Geoff Barden, the second in charge controller, and I said, “No, I’m sick”. “Can we come and see you?” I said, “Yeah, no problem”. I was under the impression it’s a friendly chit-chat again.
PN294
MS TOONG: Mrs Konya, when they came to your house, did you know that it was an investigation for the - - -?---No, I did not.
PN295
Did they tell you that maybe after the investigation, you know, there would be some discipline process?---No, they didn’t tell me. No.
PN296
You could lose your job?---No. No.”
[64] The Applicant submitted further that given English is her second language, that there were two senior managerial staff present at that meeting, and that she was not fully informed of what was to be discussed, she was in a position of vulnerability, and procedural fairness was not afforded to her.
[65] The Respondent submitted that the Applicant had a support person with her every time the Applicant either was interviewed, or met with the Respondent, after the incident of 31 January 2015. The Respondent submitted that the Applicant’s evidence suggested that she had a support person assist her with her written response. The evidence was clear that when the representatives of the Respondent attended the Applicant's house, she did not have a support person and was forced to wake her flatmate during the meeting to assist with the meeting. This could not be considered to constitute having a support person pre-arranged and on notice for the meeting.
(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
[66] It is an agreed fact that, prior to the collision, the Applicant had never received warnings about her performance. The dismissal was for alleged serious misconduct. The Applicant submitted she had an unblemished work record prior to this incident.
[67] The Respondent submitted it was unnecessary to give warnings to the Applicant as she was summarily dismissed, and further, that the Respondent conducted a thorough investigation of the matter, including testing the bus for mechanical issues.
(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
[68] The Applicant submitted the Respondent is a substantial employer with access to human resource management expertise.
[69] The Respondent did not make any submissions relevant to these criteria. The Respondent had access to specific advice in relation to the handling of this matter from the procedural point of view and in relation to the health and safety aspects, given the Respondent has a dedicated human resources officer and a health and safety officer.
(h) any other matters that the FWC considers relevant
[70] If the Commission found that there was a valid reason for the dismissal, the Applicant submitted that the dismissal was still harsh, unjust, or unreasonable. The Applicant asked the Commission to consider the personal effect on the Applicant, the disproportionate nature of the punishment compared to gravity of misconduct, and that the incident was not a deliberate act, contrary to the opinion of the Respondent.
[71] The Applicant submitted that she was employed at the Respondent for 8 years, 4 months and 23 days and had an unblemished work record. At the age of 64, it was submitted that the Applicant has found and will continue to find seeking new employment difficult in the Cairns area. The Applicant gave evidence that she obtained casual employment for a limited period from 19 March 2015 to 1 May 2015.
[72] The Applicant submitted that the brake failed to work, and the collision was not deliberately caused by her or a result of carelessness or recklessness. Even if the Commission found that the Applicant acted carelessly or recklessly, the Applicant submitted it should still find the dismissal harsh. The Applicant submitted that the Respondent’s failure to pay the Applicant’s pro rata long service leave entitlement and payment in lieu of notice added to the harshness.
[73] The Applicant submitted further that the CCTV footage clearly shows the Applicant attempting to engage the foot brake twice prior to collision, and these attempts mean the incident cannot be characterised as deliberate. This matter is clearly important to the standard of proof in relation to the incident. Furthermore, the configurations of the yard were such that any mistake of operation may reasonably have led to such a conclusion, given the limited operational space in relation to the size of the bus and proximity to the bowser.
[74] The Respondent submitted it took the Applicant’s length of employment into account, and relied upon a number of Decisions 14 to support its contention that the termination was valid.
[75] With regard to the Respondent’s Submissions where the Respondent relies on the case of Starkey v Cootes Transport Group Pty Ltd [2011] FWA 228 (‘Starkey’), to support a submission that any minor procedural faults in the dismissal of the Applicant are “far outweighed” by the seriousness of the Applicant’s misconduct, it was submitted by the Applicant that Starkey is clearly distinguishable.
[76] The Applicant submitted that Starkey related to a dismissal due to the wilful misconduct by the employee in using a handheld mobile phone whilst driving a company-owned fuel tanker. 15 It is distinguishable on the basis that the employee in that case had previously been warned about the conduct, and he also acknowledged during proceedings to having done so repeatedly on the day of his dismissal. The Applicant further submitted that even in Starkey where there was serious misconduct, the employee was paid his entitlements and payment in lieu of notice upon his dismissal.16 The Applicant submitted she was not paid in lieu of notice upon her dismissal.
[77] In contrast, it was submitted that the Applicant in this matter did not display wilful misconduct. The Applicant submitted as follows: “Taken at its worst, the Commission may consider that her conduct was careless, possibly even reckless”. The Applicant submitted that the Respondent’s submissions do not suggest that the Applicant displayed any wilful misconduct, and in particular, submitted that the Respondent appeared to submit that the reason for the Applicant’s dismissal was the “substantial seriousness of the incident which was life threatening”.
[78] Further, the Applicant submitted that a similar finding could not be made in this matter, which was distinguishable from the context of the employee’s clear misconduct in Starkey, where Deputy President Sams determined that:
“Even if this complaint could be sustained as a minor procedural fault the seriousness of the Applicant’s misconduct far outweighed any failure of the Respondent in that respect. 17”
[79] In relation the Respondent’s submission where they sought to rely on Mihajlovski v I R Cootes Pty Ltd (PR943954) (‘Mihajlovski’) to support “the Respondent’s action”, the Applicant submitted that this matter can also be distinguished. In Mihajlovski, the employee gave evidence he “deliberately drove the outside wheels of the truck into the dirt, knowing that he would lose the capacity to brake, so as to enable him to intentionally cut the corner, driving onto the wrong side of the road at high speed, and thereby deprived himself of the opportunity of braking.” 18 The Applicant submitted the conclusion in this case is not applicable to the facts of the current matter.
[80] In relation to the Respondent’s reliance upon Tu Noanoa v Linfox Pty Ltd [2011] FWA 306 (‘Tu Noanoa’) to “counter any suggestions that the Applicant’s longevity in the job outweighs the incredible seriousness of the incident and the ultimate decision of the Respondent to terminate her employment.”, the Applicant submitted this was also distinguishable.
[81] The Applicant submitted that in Tu Noanoa, the Applicant “confirmed that he had deliberately made false entries on his daily worksheet” and that the employee’s deliberate falsification of an important employment-related document destroyed the relationship of trust and confidence between the employee and his employer due to deliberate conduct found to be gross and wilful misconduct. Further, Tu Noanoa related to an employer’s loss of trust and faith in an employee in the specific context of falsification of documents.
[82] Finally the Applicant submitted that, given that these proceedings do not involve a summary dismissal founded upon misconduct involving established dishonesty, it must follow that, in this matter, the Applicant’s lengthy period of unblemished service must assist her in the consideration of her claim for unfair dismissal.
[83] The Respondent submitted that the Applicant’s dismissal was not unfair, unjust or unreasonable, and that the cases referred to demonstrated that the Applicant’s longevity of employment should not outweigh the seriousness of the incident that lead to the Applicant’s dismissal.
Consideration
(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
[84] Having considered the evidence in relation to whether there was a valid reason, and the definition of Serious Misconduct in Regulation 1.07, it is clear that the incident posed a serious and imminent risk to the health or safety of a person, in this case another employee of the Respondent. But for the awning, the bus would have continued, causing a serious or fatal injury to Mr Mark Simpson. Mr Campbell, the General Manager for Safety and Risk, stated as follows:
“PN1065
But for the awning pole, there could have been a fatality or a far more serious incident? Yes. Definitely. I’m not a structural engineer but from what I’ve seen in the past, I do think that, yes.
PN1066
All right. But running a risk assessment across that, you’ve got a 14 tonne bus that’s regularly – as I understand it, they’re regularly moved in that short – in that yard that’s short on space. Correct me if I’m wrong because I haven’t been to the yard. I’m simply drawing this from things that have been said and from the diagrams. You’re the expert in workplace health and safety. Is it not relevant that there would be some safety bollards or something there that would prevent such an incident of this nature? When I say safety bollards, I’m talking about something structurally strong, not a - - -? The pole that is there is a piece of – essentially a piece of 90 ml RHS, which is what you make safety bollards out of. That, in itself, provides direct protection right beside where they are. I mean, you could put bollards around the entire yard. Basically what you normally – what you do and what we do in this situation is limit the speed that the buses are driven at, and then we obviously make sure that we have qualified, educated people who are driving our vehicles in that area as well.
PN1067
Is that what you assessed Ms Konya to be? Her licensing instructor assessed her to be competent by providing her with an MR licence. That’s what I would say.”
(emphasis added)
[85] It was conceded by the Respondent that the space in the yard was tight 19. The General Manager, Alex Murray, gave evidence that a risk assessment of manoeuvring the buses was not undertaken on commencement of his role, rather that he undertook a more informal surveillance of how the buses were manoeuvred in the yard to familiarise himself with the yard20.
[86] There was evidence given by Mr Campbell, General Manager for Safety and Risk, that the Respondent is undertaking a review in relation to how buses are moved in and out of the yard 21, however, there was no clear evidence that a risk assessment or review arising out of the particular circumstances of this incident was being undertaken:
“PN1091
Has been – the recommendation has been to review how we capture training records? The first part of it is to review the traffic management – the risk assessment and traffic management plan.
PN1092
Has that occurred? It’s – yes, it’s still occurring.
PN1093
Okay. Because this happened in 31 January? Yes.
PN1094
All right. So what’s occurring with that? There’s been no recommendation or - - -? So it’s kind of tied into two pieces. So we’re also looking at how we move buses around the depot holistically, not just specifically in relation to this, and how we make it more efficient for buses to get in and out. Which obviously once you make it more efficient, it will also make it safer for our employees as well because, you know, they don’t – in terms of access to the buses from where they sign on, will make it safer. So it’s tied up in a lot – it’s one small part of a lot more things. I don’t know if that makes sense.
PN1095
Yes. Why has that been done? Is it – I’m specifically interested in this incident. Did you take a view of the spaces that this incident occurred in and what was being done. What has led you to that review? My visit to the site led me to that review and as part of the recommendations in the investigation.
PN1096
All right. What was your concern? The depot itself holistically is a small area, as is every bus depot within – that I’ve ever seen within our group and outside of our group. So that’s – my concern is making sure that we safely move buses, if that answers your question.”
(emphasis added)
[87] Clearly, a risk assessment would demonstrate the high risk of a potential accident given the layout of the yard with one pole supporting an awning between the petrol bowser and a 14 metre bus that was being operated in a space with minimal additional space.
[88] However, it has not been made out that it was the Applicant’s conduct that caused this risk. There was no nexus between not wearing a seatbelt and the risk. It is accepted that the Applicant was driving with care and attention, and she gave evidence that she was checking her side mirrors to avoid hitting closely parked buses on her left and right 22. It was raised in the Applicant’s evidence that the brake was not covered with the rubber cover, and it was confirmed by Leading Hand Mr Thorpe that the cover was reported missing some weeks after the incident23, and it could have been missing at the time of the incident. The Applicant’s representative also raised that there had previously been work undertaken on this bus.
[89] It is accepted that the Applicant attempted to stop the vehicle using the foot brake, but was not able to stop the bus despite her attempts. The evidence of the Respondent was that the bus could easily increase speed from a starting point to above that which was regarded as the maximum for operating buses in the yard as set out in the policy 24. The Applicant’s evidence was that she had never received a copy of the traffic management plan or training in this procedure or the policy25. It cannot be concluded that there was any deliberate failure of procedure that caused the accident.
[90] In all of the circumstances and considering the evidence given in these proceedings, it is not considered that the reasons for the dismissal, described in evidence by Mr Campbell as failure to drive with due care and attention, and listed in the termination letter as deliberate behaviour including choosing not to wear a seatbelt, not checking gauges and choosing to focus on the mirrors and not the front window and that path ahead, were “sound, defensible or well founded” 26.
[91] Considering the evidence relating to the accident, on the balance of probabilities 27, the Applicant’s conduct only did not cause the risk to Mr Simpson, and it cannot be characterised as serious misconduct under Regulation 1.07(2)(b)(i). A risk assessment would indicate little margin for error based on the description of the limited area in the work yard, the size of the buses and the positioning of the bowser.
[92] With respect to whether the conduct was wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment, under Regulation 1.07(2)(a), while this section of the Regulation was not specifically advanced by the Respondent, Mr Campbell stated that he would consider the “fact that she [the Applicant] didn’t look forward” and “continually looked in her mirrors” to be “deliberate action”. It is not accepted that the incident involved wilful or deliberate behaviour by the Applicant.
[93] Accordingly, on the evidence, it cannot be satisfied there was a valid reason relating to the Applicant’s capacity or conduct.
(b) whether the person was notified of that reason; and
[94] The Applicant was provided with a show cause letter on 27 February 2015, which outlined the nature of the allegations relating to the incident, including, failing to operate the bus in a safe manner with due care and attention, deliberate behaviour of not using a seat belt, not checking gauges along with choosing to focus on the mirrors and not the front window. The Applicant was also notified in the termination letter of the reason for the dismissal. The termination letter referred to the reason for the dismissal (in term of the conduct) as deliberate behaviour including choosing to not wear a seatbelt, not checking gauges as well as choosing to focus on the mirror and not the front window and the path ahead. The termination letter does not include the reason for termination as failing to operate the bus with due care and attention; however, this is the reason for the termination as stated by Mr Campbell in his evidence.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
[95] The Applicant was given an opportunity to respond formally to the allegations surrounding the incident, in her response to the show cause letter dated 27 February 2015. The Applicant had until 12:00pm on 2 March 2015 to provide this response. Her response is dated 27 February 2015. The Applicant stated she delivered this response to the show cause letter at 11:00am on 2 March 2015 28. The evidence demonstrated a limited consideration of the show cause letter in the 24 hours prior to termination by the three people involved in the decision.
(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
[96] The Respondent attended the Applicant’s home on 20 February 2015, to ask questions about the incident. Notes were taken of this conversation, which were entitled “Investigation Minutes”. Whilst there was no request made by the Applicant as to having a support person, and therefore no unreasonable refusal, it is relevant that the Applicant was not informed of the nature of the meeting at her home, which, as stated in the letter following the meeting, was part of the process of gathering material for the investigation.
[97] It was inappropriate and unnecessary to conduct the initial meeting at the Applicant’s home, particularly in circumstances where the Applicant had indicated she was not well, and it was clear at the start of the meeting that she did not have a support person present, that English was not her first language and considering she had not been clearly informed of the actual nature of the formality of the meeting. The Applicant at the time of this initial meeting had not been given an opportunity to view the CCTV footage.
[98] It was accepted that the Respondent provided an opportunity for the Applicant to have a support person at the second meeting, held on 24 February 2015. The Applicant submitted that she did not have enough time, after only receiving the letter dated 13 February on 20 February 2015, to organise for her union representative to attend. There is no indication on the Applicant’s evidence that the Applicant requested the meeting be postponed as her union representative was unavailable and it is therefore not accepted that the Applicant was forced to have, instead, Mr Galliford, a TWU delegate, as her support person.
(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
[99] It was agreed that the Applicant had never had warnings about her performance, and that the dismissal was for alleged serious misconduct. The Applicant submitted she had an unblemished work record prior to this incident. The Respondent submitted it was unnecessary to give warnings to the Applicant as she was summarily dismissed.
[100] The dismissal was for one incident of alleged serious misconduct in a lengthy period of employment. Two of the personnel undertaking the decision to terminate the Applicant’s employment, in contrast, had been with the employer for a very short period of employment (a matter of months). Whilst it was submitted that the Applicant’s significant period of employment (without any other record of discipline) had been taken into account, there was no clear evidence of this in terms of balancing this one incident and the period of employment. It must also be noted that there was no persuasive evidence that other mitigating factors had been taken into consideration in relation to the very tight configuration of the layout of the work yard and manoeuvring the size of these buses in such a limited space.
[101] Further, the conduct cannot be viewed as serious misconduct given that a risk assessment had not been undertaken in relation to the work yard. On the face of the evidence, in terms of the set-up of the yard and the operation of the work, there was clearly a high potential risk of an incident, when the size in terms of the tonnage and length of these buses, the space that they were to be moved in and the proximity to a petrol bowser (with only, on the evidence, a supporting pole of an awning to prevent a reasonably foreseeable accident) are considered.
[102] In addition, in terms of the process undertaken in relation to the dismissal, there was no clear assessment or weighing of the impact of the decision on the employee in the decision-making process or the consideration of alternative disciplinary outcomes. This is despite the effect of the decision to terminate a long-term employee (the dismissal of whom would have a significant impact on her circumstances, given her age and the limited opportunities for alternative employment and that the effect of the dismissal for serious misconduct denied her access to her accrued long service leave). The termination decision was undertaken in a very short period and considered to be a serious issue and yet a report on the particular incident had not yet been completed (at the time of the hearing) by the employer's General Manager for Safety and Risk, who had been involved in the decision to terminate the Applicant.
(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
[103] The Respondent’s enterprise is not small, employing 142 employees at the time of the dismissal, according to the Respondent’s F3 – Employer Response, and is not likely to impact on the procedures followed in effecting the dismissal. It is noted that the Respondent conducted meetings and an investigation and provided the Applicant with an opportunity to show cause.
[104] The Respondent has a General Manager for Human Resources, Ms Katherine Drew, who prepared the F3 – Employer Response. The Respondent employed a dedicated human resources officer and a general manager of health and safety and had access to specific advice in these areas and accordingly it is expected that the procedure is commensurately with having these dedicated resources.
[105] Ms Drew did not give evidence in this matter. Evidence relating to the dismissal was instead given by the General Manager, Alex Murray, General Manager for Safety and Risk, Matthew Campbell, and Leading Hand, Simon Thorpe. Mr Campbell stated that Ms Drew was part of the disciplinary process or HR process, but that he and Mr Murray were the main persons involved in the investigatory process 29.
(h) any other matters that the FWC considers relevant
[106] The length of the Applicant’s employment, and the Applicant’s unblemished work history are relevant to the harshness of the dismissal. It is also relevant that the dismissal would have a significant impact on her circumstances, given her age and the limited opportunities for alternative employment in the Cairns area and the effect of which denying her access to her accrued long service leave would have on her.
[107] Given this was an event that occurred in the work yard in the cleaning process, the Respondent did not make its case out in relation to one of the reasons for dismissal being how the incident caused potential damage to the reputation of the Respondent.
Further evidence of the Applicant was that she had not been trained in the safety management policy or procedure for moving buses in this area.
Conclusion
[108] On the balance of probabilities, it could not be concluded that the only contributing cause was that the Applicant’s conduct was the cause of this risk. It was questionable that the employer was indicating a concession that they needed to remedy the state of the yard, and yet that they had not, as a result of this incident (that they considered to be serious) undertaken a workplace health and safety review of the process at all to date. An immediate review was warranted in the circumstances.
[109] As stated above, the reason for the termination was not a valid reason. It was not accepted that the Applicant was driving the bus without due care and attention. The incident was serious and potentially life-threatening, however, on the balance of probabilities it could not be concluded that the Applicant’s conduct was the only cause of this risk. Further, the events of the alleged conduct are not commensurate with serious misconduct as per the Regulation.
[110] Despite the Applicant agreeing to it, as stated above, it was inappropriate and unnecessary to conduct the meeting on 4 February 2015 at the Applicant’s home. The Applicant had indicated she was not well, and it was clear at the start of the meeting that she did not have a support person present, English was not her first language and the Applicant was not clearly informed of the actual nature of the formality of the meeting.
[111] The Applicant was given the opportunity to respond, in meetings and by way of a show cause letter. At the time of the meeting at the Applicant’s house, the employer’s representatives had viewed the CCTV footage and the Applicant had not. No compelling reason was provided as to why the meeting had to occur at this time at the Applicant’s house prior to her having viewed the footage. The reasons relied on in the termination letter do not go beyond those outlined in the show cause letter, but rather, they do not include one of the allegations in the show cause letter, which was the reason given by Mr Campbell in evidence, that the Applicant was not driving with due care and attention, and this reason could not be proven to the relevant standard to justify summary dismissal.
[112] The dismissal was harsh given the Applicant’s length of service and prior unblemished work record, the impact of the summary dismissal on her circumstances, and the fact that alternative disciplinary outcomes were not given serious consideration on the evidence and further, a work assessment of the operations being undertaken in the work yard and the configuration of the work yard were not taken into account as reasonable mitigating circumstances. Taking into account the observations set out above, on balance, given all of the circumstances, I find the Applicant’s dismissal was harsh, unjust and unreasonable.
Remedy
[113] The relevant legislative provisions for consideration of the remedy are set out in s.390, s.391 and s.392. Section 390 of the Act sets out the following:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case ...
[114] The Applicant claimed compensation rather than reinstatement. The Applicant, in submissions dated 9 July 2015, sought an Order for compensation, calculated on the basis of her outstanding entitlements, and lost remuneration - totalling $23,537.96. Included in this amount is a claim for pro rata long service leave under ss43(3) of the Industrial Relations Act 1999 (Qld) of $8,444.66, for 8.39 years of service.
[115] The Respondent submitted that the Applicant’s claim for pro rata long service leave as part of the remedy of compensation would not meet the criteria as set out in section 392 (2) of the Act, and that a claim for unpaid long service leave would be appropriately brought pursuant to Division 3, Part 4-1 of Chapter 4 of the Industrial Relations Act 1999 (Qld).
[116] On the basis of the finding that the termination was harsh, unjust or unreasonable the appropriate remedy is now considered. In considering the remedy I followed the approaches as set out in the relevant authorities namely Parker-Walford v PHT Holdings Pty Ltd T/A Sushi-Pro and Tabro Meat Pty Ltd v Kevin Heffernan. 30
[117] The Applicant did not seek reinstatement, as it was submitted the Applicant had lost trust and confidence in the Respondent and the Respondent, in the reasoning for dismissing the Applicant, considered they had lost trust and confidence in her on-going employment, and as such both parties considered that the employment relationship had been irrevocably destroyed.
[118] In considering remedy, I am satisfied that the Applicant applied pursuant to s.394(3) and in accordance with s.390(3) of the Act. The Applicant was protected from unfair dismissal at the time of termination and the Applicant has been unfairly dismissed. I am satisfied that the reinstatement of the Applicant is not the appropriate recourse, and the Applicant, given the dismissal and its unfairness, does not seek reinstatement.
[119] I am satisfied that an order for the payment of compensation is appropriate in all the circumstances. The Full Bench in James Jones T/A The Pet Cemetery & Crematorium v Ms Raquel Ciuzelis 31, set out the approach to be followed in relation to considering compensation. Specifically, the parties should be given an opportunity to consider the length of the predicted on-going employment relationship. Accordingly, further submissions are sought specifically on this issue in relation to the award of compensation and in relation to other criteria in s.392 and matters considered relevant to the issue of the remittive compensation in this Full Bench Decision.
[120] Section 392 relevantly sets out:
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Further Considerations in Relation to Remedy
[121] Submissions were filed on the quantum of remedy in the event of reinstatement, however, they do not addresses the criteria, as set out above in s.392, and it is appropriate to direct that the parties provide submissions and any evidence relevant to the criteria 32.
[122] For this purpose the Applicant is directed to file, and serve, short materials in relation to these matters by no later than close of business on Friday, 9 October 2015. For the purpose of likely future earnings until compensation is received, I indicate to the Applicant that the Order for compensation will issue on Friday, 23 October 2015, once the further material has been considered and will require the Respondent to comply within 14 days of that date. The Applicant should take this into account in submissions in relation to the expectations of her earnings.
[123] The Respondent may file, and serve, a reply to those matters raised in relation to the items address by the Applicant in relation to Directions above by no later than close of business on Friday, 16 October 2015. If no further material is received by the Respondent it will be deemed that the Respondent does not wish to make submissions in this regard and regard will be had to that material filed by the Applicant.
[124] The determination in relation to the amount of compensation will be made once the material is filed in accordance with Directions that will issue separately as per paragraphs [122] to [123] of this Decision. An Order will issue requiring the Respondent to make payment within 14 days of the date of any resulting Order.
[125] In relation to the matters set out above, for the aforementioned reasons in terms of the facts and circumstances and conclusions reached, I Order accordingly.
COMMISSIONER
Appearances:
Ms V. Toong, of Wettenhall Silva Solicitors for Mrs E. Konya
Mr I. McDonald, of Australian Public Transport Industrial Association for Transit Australia Pty Ltd T/A Marlin Coast SunbusHearing details:
2015:
Cairns
1 July.
Final written submissions:
Applicant – 9 July 2015, 22 July 2015
Respondent – 16 July 2015
1 Exhibit 8 – CCTV Footage of the Incident.
2 Cross-Examination of Matthew Campbell at PN1052-PN1053.
3 Cross-Examination of Matthew Campbell at PN1054.
4 Cross-Examination of Alex Murray at PN663-PN666.
5 Affidavit of Stephen Kelly dated 10 June 2015 at paragraph 12.
6 Examination-in-Chief of Eszter Konya at PN67-PN68.
7 Examination-in-Chief of Simon Thorpe at PN787-PN797.
8 Exhibit 8.
9 Exhibit 8.
10 Cross-Examination of Alex Murray at PNPN477 & PN486-497; Cross-Examination of Simon Thorpe at PN822-PN828; Cross-Examination of Matthew Campbell at PN1045-PN1050.
11 Exhibit 7; paragraphs 3 and 4, PN1052.
12 [2011] FWAFB 4070 at [24].
13 PN306.
14 Respondent’s submissions at paragraphs 26 to 31.
15 Starkey v Cootes Transport Group Pty Ltd[2011] FWA 228 at [1].
16 Starkey v Cootes Transport Group Pty Ltd[2011] FWA 228 at [1].
17 Starkey v Cootes Transport Group Pty Ltd[2011] FWA 228 at [40].
18 Mihajlovski v I R Cootes Pty Ltd, PR943954 at [9].
19 Cross-Examination of Matthew Campbell at PN1112.
20 PN556-PN560.
21 Cross-Examination of Matthew Campbell at PN1118.
22 PN192.
23 PN882.
24 PN926.
25 PN62, PN66.
26 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373; cited in Annetta v Ansett Australia Ltd (2000) 98 IR 233, 235 [10].
27 Briginshaw v Briginshaw (1938) 60 CLR 336; cited in Barber v Commonwealth (2011) 212 IR 1, 33 [93].
28 Affidavit of Eszter Konya sworn 10 June 2015 at paragraph 57.
29 PN1013–PN1023.
30 Parker-Walford v PHT Holdings Pty Ltd T/A Sushi-Pro[2013] FWCFB 2191; Tabro Meat Pty Ltd v Kevin Heffernan [2011] FWAFB 1080.
31 [2015] FWCFB 84.
32 James Jones T/A The Pet Cemetery & Crematorium v Ms Raquel Ciuzelis[2015] FWCFB 84.
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