Ms Cheryl Herbert v Kayboa Pty Ltd T/A Keirs Buses

[2011] FWA 2412

[2011] FWA 2412

FAIR WORK AUSTRALIA

DECISION

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

Ms Cheryl Herbert
v
Kayboa Pty Ltd T/A Keirs Buses
(U2010/14731)

COMMISSIONER DEEGAN CANBERRA, 20 APRIL 2011

Termination of employment - Whether harsh, unjust or unreasonable.

[1] This matter arises from an application for a remedy for unfair dismissal lodged on 6 December 2010 by Ms Cheryl Herbert (the applicant) in respect of the termination of her employment with Keirs Buses (the employer). The application is made under s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] The matter was listed for conciliation on 14 December 2010. Although both parties believed the matter to be settled at the conciliation it appeared that there was a disagreement as to the terms of the settlement. The applicant believed that she would be re-employed as a carer from the commencement of the school term in February 2011. The respondent believed that the agreement was that the applicant was to be employed if a position was available. No carer position was available.

[3] As there was no concluded settlement the matter was listed for arbitration. At the arbitration Mr Lester, a legal practitioner, was granted leave to appear for the applicant. The respondent was represented by Ms Loretta Keir, the office manager, accompanied by a support person, Mr Wadsworth.

Background

[4] Ms Herbert had been employed by Keir’s Buses since 2009 as a carer on buses for children with special needs. She had previously been employed in a similar position for a number of years but had left to take up permanent employment elsewhere, and was reengaged in May 2009.

[5] Ms Herbert worked regular shifts each morning and afternoon during school term. For around 15 hours of work per week she earned a net wage of about $270.

[6] During October and November 2010 Ms Herbert had reason to complain about the actions of the driver of the bus on which she performed her duties who was also an employee of Keirs Buses.

[7] Ms Herbert directed her complaints about the driver to the Office Manager for Keirs Buses, Ms Loretta Keir, and the manager of the company, Mr Shane Keir. On 24 November 2010 the applicant complained to Ms Keir about the driver’s actions on that day. Since 24 November 2010 Ms Herbert has not worked a shift for the respondent.

Applicant’s Case

[8] According to the applicant’s evidence she witnessed, on three separate occasions, behaviour by the driver on the bus on which she was a carer which she considered was inappropriate.

[9] On 24 October 2010 she witnessed an altercation between the bus driver and another driver over a right of way dispute. The applicant alleged the bus driver had chased the other driver because that driver had admonished him. Upon his return the bus driver had said “Lucky I didn’t catch him. I would have killed him”. The applicant claimed that the driver did this in front of three children who were passengers on the bus. According to the applicant’s written statement it was her understanding that another person who was present at the time had reported the incident to Mr Shane Keir, the manager for the respondent. In her oral evidence she claimed that she had telephoned Mr Keir about the incident.

[10] On 29 October 2010 the applicant claimed that the bus driver had raised his fist to, and yelled at, a child who was a passenger on the bus who had been crying. The applicant reported this incident to both Shane and Loretta Keir who said that they would talk to the driver. The applicant did not hear any more about the matter.

[11] On 24 November 2010 the applicant and the bus driver had an argument during which they yelled at each other. It was the applicant’s evidence that she had objected to the driver’s request for her to “stop the kids taking violence on the bus”. As a consequence the bus driver had stopped the bus early and a 12 year old boy had to walk two house lengths to reach his home. The applicant rang Ms Keir while she was on the bus to complain about the driver’s actions. The applicant also alleged that the driver had walked towards her with his fist clenched when she left the bus.

[12] When the applicant reached her home she telephoned Ms Keir to report the matter and was told by Ms Keir that the driver was coming and that she would talk to the driver and let the applicant know how it goes. Ms Keir phoned the applicant a little later to ask the applicant if she had said to the driver that he was a threat to the children. The applicant had agreed that she had said that. The applicant had then said to Ms Keir that “someone is going to get hurt and I do not want that on my shoulders”. She also told Ms Keir that she would not be in to work the next day.

[13] The following day the applicant rang Mr Keir and was told that Loretta was doing her job that day and the next. On 26 November 2010 the applicant attended a doctor and was given a medical certificate for that day. It was the applicant’s evidence that on 29 November 2010 she waited for the bus to pick her up but it didn’t come. When she phoned Mr Keir she was told to come into the office and meet with Loretta and him. The applicant met with Mr Keir alone as Loretta was not available, and was told that Loretta had told him that she (the applicant) would not work with the driver of the bus on which she had worked. The applicant stated that she had denied this and was asked to attend the office again on 30 November 2010, when Loretta was available.

[14] When the applicant attended the Keirs Bus office on 30 November 2010 Ms Keir repeated her claim that the applicant had refused to work with the driver she had complained about. It was the applicant’s evidence that she stated at the time that she had never said to Ms Keir that she would not work on the bus with the current driver.

[15] The decision as to the applicant’s position was left to Shane Keir, who advised that he did not want to put the applicant and the driver together. Further he noted that there was no other position for the applicant at that time but that there might be after the holidays.

Respondent’s Case

[16] Ms Loretta Keir, the office manager, gave evidence on behalf of the respondent. It was Ms Keir’s evidence that the applicant had telephoned her on 24 November 2010 and advised her that she would not work on a bus driven by her current driver. According to Ms Keir, as there was no relief available she filled in the applicant’s carer position on the bus for the next two days. She then located another person to take the carer position on the bus.

[17] It was Ms Keir’s evidence that on 30 November 2010 she had made a file note 1 about the matter. The file note stated that there were issues with the applicant and her current driver working together as a team. It noted that the applicant and the driver had only worked together for a short period and that the driver had worked with three other carers without complaint. It was also noted that the driver had been with the company only for a short time. The file note recognised the applicant’s years of service and her excellent record but concluded that the driver and the applicant should not work together, in the best interest of the company.

[18] Ms Keir stated that she was reluctant to swap carers and drivers between buses to make another position for the applicant as it was important for the children to maintain as much stability and continuity as possible. Ms Keir noted that the children became attached to their carers and their drivers and that the carers and drivers worked as a team. It was Ms Keir’s evidence that the applicant was an excellent carer and that it was difficult to find both drivers and carers for the positions on the buses operated by the respondent. She further advised that, had a carer position become available, the applicant would have been employed in it as the applicant was very good at her job.

The Legislation

[19] Section 385 of the Act provides:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA 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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[20] In determining whether a dismissal is harsh, unjust or unreasonable the Act further provides:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

Consideration

[21] In the matter before me the question of whether there has been a dismissal is not immediately apparent. The applicant did not resign her employment. Although the matter was raised on the applicant’s behalf, the question of the applicant’s employment status was not clearly put at issue. The employer claimed that the applicant was a casual employee and produced a tax file declaration 2 signed by the applicant in 2003 noting her employment status as “casual”. According to the respondent nothing had changed in relation to her employment conditions since that date. Clearly the applicant was employed for regular periods of 15 hours each week of the school term. This is not inconsistent with casual employment. It is also clear that the applicant had an expectation of continuing employment.

[22] As the applicant was not offered any further casual shifts by the respondent after 24 November 2010 I find that her casual employment has been terminated by the respondent. The respondent took a decision to employ another carer in the position formerly regularly occupied by the applicant. This is consistent with termination of the applicant’s employment.

[23] The respondent claims that the applicant advised that she would not work with her current driver and that no other position was available. It is clear that the respondent also reached a conclusion that it was not in the company’s best interests for the applicant and the driver to work together. 3 The applicant denies that she told the respondent that she would not work with the driver.

[24] This is not a case involving redundancy and there was no claim put for the respondent that it was a small business employer.

[25] Having determined that the applicant has been dismissed I must consider whether the dismissal was harsh unjust or unreasonable. 4

[26] I have considered whether there was a valid reason for the applicant’s dismissal. The applicant was a casual employee with an expectation of ongoing employment during school terms. The employer has taken the view that the applicant should not continue to work with her current driver. This decision may or may not have been in accordance with the applicant’s stated wish. The applicant may not have said so to Ms Keir in those words, but I am prepared to accept that Ms Keir genuinely believed that the applicant would not work with her current driver. This view would have been reinforced by the applicant’s statement that she would not attend work the next day. If the applicant’s complaints about the driver had substance, her refusal to work with him would have been understandable. It is also understandable that, whatever the truth of the matter, Ms Keir took the view that it was in the company’s best interests that the two employees no longer worked together.

[27] There was no longer a position for the applicant with the respondent as another person was employed in her place. The employer decided, with good reason, that the applicant and her current driver could not work together and that the other carer/driver teams should not be disrupted so as to find a position for the applicant. In those circumstances, given that the applicant had made complaints about the driver which had not been investigated, and the employer clearly decided that it would retain the driver in employment without any real investigation, I must find that there was no valid reason for the applicant’s dismissal.

[28] The applicant was informed that there was no position for her on 30 November 2010. It was clear at that time that another person had been employed to take her current position as she either would not or, should not, work with the driver who was the subject of her complaints. There was no reason for the dismissal that related to the capacity or the conduct of the applicant and there was no suggestion of any unsatisfactory performance on the applicant’s part. There was no evidence that the applicant requested to be accompanied by a support person for any of her discussions with Mr or Ms Keir.

[29] Paragraphs (g) and (h) of section 387 are of particular importance in this matter. The evidence is that the respondent is a charter coach company with a contract with the ACT Department of Education to provide transport to and from school for children with special needs. The respondent employs a number of drivers and carers to fulfil this contract. Ms Keir is the office manager and she and her brother, who is apparently the manager of the company, appear to deal with human resource issues affecting the company. It is apparent that the respondent is a relatively small concern which, on Ms Keir’s evidence, has difficulty attracting employees to fill roles in the company as drivers, and carers. It is for these reasons that I am of the view that the size of the company had an impact on the procedures adopted in effecting the dismissal. Similarly I am of the view that the lack of human resources expertise also had a deleterious effect on the manner in which the termination of the applicant’s employment occurred.

[30] I am satisfied that the respondent has difficulty in finding appropriately qualified drivers for its buses and that this was a factor in the decision to replace the applicant rather than further investigate the applicant’s complaints. Given the discrepancy between the applicant’s written statement and her oral evidence about whether it was she who reported the incident of 24 October 2010, I am only prepared to accept that she had made two complaints about the driver to the respondent, about one month apart. As the applicant and the driver were on the bus together every week day between the two incidents, apparently without any problem, it may be that the respondent took the view that the applicant had over-reacted or merely ‘had issues’ with the driver, but that the matter was not so serious as to warrant further investigation. This view may have been reinforced by the fact that the three other carers who had worked with the same driver had not had a problem with him.

[31] In my view, it was a lack of human resources expertise that resulted in the respondent adopting the view that, as a casual employee, it was a matter for the applicant whether she worked or not. The respondent either accepted the applicant’s decision not to continue working on the bus with the particular driver or took the view that it was not in the company’s interests for the two to work together. The end result was that the applicant lost her position despite no proper investigation into her complaints about the driver having been conducted.

[32] For the reasons set out above I find that the applicant’s dismissal was harsh.

Remedy

[33] I am satisfied that the applicant was a person protected from unfair dismissal at the time of the termination of her employment. I accept that there is no position available to which the applicant could be reinstated without another employee losing their position. I am also of the view that reinstatement is not appropriate given the size of the company and the fact that management appears to consist of two family members who, together, appear to have been closely involved in the circumstances which resulted in the termination of the applicant’s employment.

[34] Given the family nature of the enterprise, its size and the institution of the proceedings, I am satisfied that the employment relationship has broken down to an extent where an order for reinstatement would not be appropriate.

[35] In the circumstances it is my view that the appropriate remedy is compensation. I note that the applicant has not gained other employment since losing her position. I also note that her casual employment was only available during school terms. The applicant was employed by the respondent on a casual basis since May 2009. This is a period of less than two years. I do not think it appropriate that I take into account earlier service as the applicant chose to terminate her previous employment.

[36] There was no evidence about the applicant’s attempts to mitigate her loss since realising in early February that she was not going to be offered a position with the respondent from the commencement of the school term. Nor was there any evidence about the effect any order I might make might have on the viability of the respondent’s enterprise. In this regard I must note that while the applicant was legally represented the respondent was not.

Conclusion

[37] In all the circumstances I am of the view that the appropriate order for compensation in this matter is that the respondent pay to the applicant an amount equal to the remuneration lost by the applicant from 8 February 2011 until 15 April 2011 (the last day of school prior to the current holiday period). This will compensate the applicant for the period she could have expected to have been employed by the respondent in 2011 until the date of the hearing. I do not think it is appropriate to compensate the applicant for any further loss of remuneration given the overall circumstances of the case, including the short period of employment and the lack of any evidence concerning the applicant’s attempts to mitigate her loss.

[38] I intend to order that the compensation be paid to the applicant within 14 days of the date of the order. It is unlikely that the applicant will earn any income between the date of the order and the payment of the amount ordered, given that she is not currently employed.

[39] An order giving effect to this decision is published separately.

COMMISSIONER

Appearances:

Mr Fred Lester, Maurice Blackburn, for the applicant.

Ms Loretta Keir with Mr Garry Wadsworth, support person, for the respondent

Hearing details:

Monday, 18 April 2011 (Canberra)

 1   Exhibit K2.

 2   Exhibit K1.

 3   See Exhibit K2.

 4   Fair Work Act 2009 (Cth) s.387.

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