Ms Amie Logsdon v Surfside Buslines Pty Ltd - [2022] FWC 392

[2022] FWC 392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Amie Logsdon
v

Surfside Buslines Pty Ltd

(U2021/9103)

COMMISSIONER RIORDAN

SYDNEY, 22 APRIL 2022

Application for an unfair dismissal remedy

On 12 October 2021, Ms Amie Logsdon filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act). The Applicant was dismissed by Surfside Buslines Pty Ltd (the Respondent) on 22 September 2021 for alleged Serious Misconduct for engaging in inappropriate behaviour towards a passenger.

The Respondent conducts a public transport business, and employed the Applicant as a Bus Driver from 29 April 2019 until her dismissal on 22 September 2021. The Applicant’s employment was covered by the Surfside Buslines Pty Ltd Union Enterprise Agreement (the Agreement).

Background

A young adult male passenger stepped on to a bus being driven by the Applicant on 16 September 2021. The passenger did not pay his fare and sat in the seats reserved for disabled passengers. The passenger had a face mask pulled down under his chin. The Applicant asked the passenger to put his face mask on properly. The passenger asked whether it was mandatory. After being told that it was, the passenger claimed to have an exemption. The Applicant then asked why he was wearing a mask if he had an exemption to which the passenger replied that he had been visiting a friend in day surgery. The Applicant once again asked the passenger to please put his mask on. The passenger replied “F*ck off Karen”. The Applicant then advised the passenger he could get off at the next stop for verbally abusing her. At the next stop, the passenger refused to get off the bus. The Applicant contacted her control room and asked for the Police to be called and asked the remaining passengers to get off the bus. The passenger eventually got off the bus after stating that he was a law student and that the Police would not come. The Police attended but the passenger had caught the next bus before they arrived.

The Applicant was dismissed for trying to enforce the Queensland Government mask mandate in breach of the Respondent’s Policy.

The Applicant’s termination letter of 22 September 2021 provides:

“22 September 2021

Private & Confidential

Amie Logsdon
Bus Driver
Molendinar Depot

Delivered by email

Dear Amie,

Termination of your employment

I am writing to you about the termination of your employment with Surfside Buslines.

I refer to the meeting on Monday 20 September 2021 with yourself, Paul Harris, People and Culture Manager (Qld) and Matthew Thompson, Driver Manager. The purpose of the meeting was to discuss an allegation of misconduct.

This meeting was attended by you and Paul Harris, People and Culture Manager (Qld) and Matthew Thompson, Driver Manager. In summary, on Thursday 16 September 2021…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] FWC 392
Decision Date

CaseChat Overview and Summary

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The Applicant, Ms Amie Logsdon, sought a remedy for an alleged unfair dismissal from Surfside Buslines Pty Ltd (the Respondent) pursuant to section 394 of the Fair Work Act 2009. The Applicant was dismissed for serious misconduct for attempting to enforce the Queensland Government mask mandate on a passenger. The Applicant sought reinstatement or, in the alternative, compensation. The Respondent submitted that the dismissal was fair and reasonable, and that reinstatement was impracticable as it had lost trust and confidence in the Applicant. The Commissioner found that the dismissal was harsh and unreasonable, and that the Applicant should be reinstated. The Applicant was dismissed for allegedly attempting to enforce the Queensland Government mask mandate on a passenger. The Applicant asked the passenger to put his mask on correctly. The Commissioner found that the Applicant was not attempting to enforce the mask mandate but was acting in accordance with the mandate. The Commissioner found that the Respondent did not have a valid reason to terminate the Applicant. The Commissioner found that the dismissal was harsh and unreasonable. The Commissioner found that reinstatement was appropriate and ordered that the Applicant be reinstated to her former role.

Orders