Paul Cahill v The Entrance Red Bus Services Pty Ltd T/A Red Bus Services

[2018] FWC 1812

[2018] FWC 1812 [Note: An appeal pursuant to s.604 (C2018/3012) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Cahill
v
The Entrance Red Bus Services Pty Ltd T/A Red Bus Services
(U2017/13313)

COMMISSIONER MCKENNA SYDNEY, 15 MAY 2018

Application for an unfair dismissal remedy.

[1] Paul Cahill (“applicant”) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“Act”) concerning his dismissal by The Entrance Red Bus Services Pty Ltd T/A Red Bus Services (“respondent”). The respondent operates bus services in the Central Coast area of New South Wales. The applicant was employed by the respondent as a bus driver for just over two years, namely from around August/September 2015 until his dismissal on 8 December 2017. The applicant’s employment effectively was without any relevant incident until the circumstances surrounding the dismissal.

[2] As to preliminary matters, there was no issue, and I otherwise find, that the application was made within time; the applicant was a person protected from unfair dismissal; the respondent is not a small business employer (it has approximately 150 employees), so applicability of the Small Business Fair Dismissal Code does not arise; and the dismissal did not involve a case of genuine redundancy.

Background

[3] What follows is my overview of matters drawn from what was recorded in closed circuit television (“CCTV”) footage (which does not have audio), and the applicant’s evidence concerning his interaction with an appallingly badly-behaved would-be bus passenger.

[4] On the morning of Wednesday, 6 December 2017, the applicant was undertaking bus driving duties for the respondent. The applicant is shown as being very engaging and friendly with the bus passengers. The bus that the applicant is driving is then shown to stop at a bus stop. Passengers alight from and board the bus. The applicant then closes the bus doors in preparation to depart from the bus stop. The applicant’s evidence was to the effect that he heard something of a commotion outside the bus. The applicant is seen leaving his driver’s seat and stepping outside the stationary bus. This is a not unreasonable reaction to check what was occurring. The applicant is then seen interacting (although partially obscured in the CCTV footage) with an agitated woman, who appears to be remonstrating with him. It is clear from the CCTV footage that the applicant was then the subject of verbal abuse from the woman while she was waving her hand/arm about - over nothing more, given part of what she said to the applicant, than her annoyance at having had to run for the bus. The applicant described what the woman said to him during the incident; and I accept that evidence. The comments included, among other matters, making threats to the applicant and uttering high-order obscenities at him. The language used by the woman is of a type that no employee should be expected to have to put up with in the course of employment from a customer; nonetheless, the applicant had a commendably calm demeanour in response to the woman’s conduct. The woman is then seen getting on the bus; she is still in an agitated state and can be seen continuing a tirade, with the nature of the expletives described in the applicant’s evidence.

[5] The applicant next effectively endeavours to block the woman’s further entry into the bus, near the area where one of the bus’s Opal card devices for payment would be swiped. Effectively, the applicant did not want the woman “getting further in the bus”, given his concern about the other passengers on the bus, including, his evidence noted and the CCTV records, mothers with babies, elderly people and children. In cross-examination, the applicant described matters in the following way: “I didn’t provoke anything, I was just trying to look after the passengers on the bus, their safety, and mine as well.” In a momentary action, the applicant appears to give the woman what seems to be a brief push or shove. This occurred in circumstances where the woman endeavoured to go past the applicant further through the passageway of the bus. It should be noted there is a reasonable alternative view of what is shown on the CCTV footage. That alternative view is that the CCTV footage shows the applicant putting his hands up once he made contact with the woman, as if he did not mean to touch her, and she then reacted with a sudden or exaggerated movement. One way or the other, it is clear the applicant did make physical contact with the woman as she endeavoured to proceed further into the bus. Despite what was advanced in the respondent’s case, it was not established on the CCTV footage that this interaction between the applicant and the woman resulted in the woman falling onto another passenger – because the footage does not appear to record any, for example, sharp recoil or similar reaction by the other passenger.

[6] The woman is seen again engaging in still more of her tirade and pointing her finger in cross proximity to the applicant’s face, before then spitting directly onto the applicant’s face - whereupon the applicant swiftly forcibly ejects the woman from the bus by pushing her out the door of the bus and onto the pavement. This was a quite reasonable reaction from the applicant, one would think. The applicant is seen wiping away whatever gob of the woman’s spit that was then still on his face.

[7] The applicant returned to the inside of the bus. The applicant did not press the duress alarm during the short time duration of the incident with the woman; it would have been impracticable for him to do so during the immediate time-frame of the incident, and there would have been no practical utility as it concerned some form of immediate duress alarm-related response from the bus depot. Following a number of attempts, however, the applicant then communicated with bus depot about the incident and requested that the police be notified. As he was instructed, the applicant then resumed driving duties on the bus route. Once back at the bus depot, the applicant completed an incident report. The applicant’s incident contained a reasonable level of detail, particularly given my acceptance of the applicant’s evidence, including that “the matter happened pretty quickly, so my recollection of every minute detail was not the best”; he was in a rush as he had a prior engagement, and the incident had already made him 30 minutes late and he would have been paid for this time; and, that “on top of this”, he still felt “pretty stressed and disturbed by the incident” and all he wanted to do was to “get home and have a shower to wash the spit off my face.”

[8] The police subsequently contacted the respondent and, among other matters, obtained CCTV footage of the incident. This, apparently, was in consequence of the applicant’s request to the depot that the police be notified.

The dismissal

[9] On Friday, 8 December 2017, the applicant saw a note on his locker from David Bain (the respondent’s Planning and Development Officer/Operations Manager), requesting to see him in his office.

[10] There was much dispute as to what occurred in the meeting on 8 December 2017 as between the evidence of the applicant, Mr Bain and Samantha McKenzie (the respondent’s General Manager and Company Secretary; and whose family/family members own the business). I conclude as follows as to what relevantly occurred:

•  Mr Bain raised with the applicant matters concerning the incident with the woman and he was, in effect, critical of the applicant’s conduct in relation to the incident. Among other matters, Mr Bain said words to the effect that the applicant had assaulted the woman and the police were considering charging the applicant; and that the applicant had broken a number of protocols, including getting out of the driver’s seat and checking outside the bus instead of just shutting the doors and driving away from the bus stop.

•  The applicant was, in effect, shocked and expressed his disagreement about matters Mr Bain conveyed to him. Among other matters, the applicant stated it was the woman who had assaulted him. Mr Bain effectively indicated that in his view the applicant had started matters by leaving the bus and then pushing the woman once she had boarded the bus.

•  Mrs McKenzie entered the office and indicated that she supported Mr Bain’s views, including Mr Bain’s view that the applicant had assaulted the woman. In response to what Mrs McKenzie said, the applicant commented to Mrs McKenzie, in a comparative type of way, about an earlier incident concerning two teenage boys in which Mrs McKenzie (and apparently also Mr Bain) had had some level of personal involvement; this reference was to a past incident whereby two boys were first removed from a bus, then returned to it, and then taken by bus into police or transit police custody.

•  Mrs McKenzie was, in effect, offended or upset (self-described as being “mortified” … “defensive and emotional”) by what the applicant said in alluding to her own involvement in the earlier incident concerning the two boys. Mrs McKenzie immediately then proceeded to inform the applicant he was dismissed and that he was to leave the premises.

•  The applicant next walked into another room (a drivers’ room, or similar) and is seen commencing a conversation with another employee (as to the fact he had been dismissed). Mrs McKenzie entered the room. The CCTV footage records Mrs McKenzie gesticulating to the applicant while speaking to him, during which the applicant stands passively or calmly. I accept the applicant’s evidence that Mrs McKenzie told the applicant not to speak to any of the drivers, that he was to give her his keys and that he would be followed to/escorted to the car park. The CCTV footage shows the applicant giving Mrs McKenzie his keys.

•  The applicant left the building and a further short discussion ensued, again involving the applicant, Mrs McKenzie and Mr Bain about what had happened and the dismissal. The evidence of the applicant as to what unfolded was that, among other matters, he said words to the following effect:

“How could this happen, how could I have been, you know, spat on and, treated, you know – one thing happened to me on the Wednesday and here it is, Friday, and I’ve been sacked for doing nothing other than sticking up for my passengers on a bus and trying to do the right thing and, you know, you’ve turned this into me being the person who instigated it and I’m gone, I’m sacked from my job, this was my future, you know.”

•  The applicant was then followed through parts of the exterior of the building towards a carpark, initially by Mrs McKenzie and then also (after having stopped to briefly smoke a cigarette) by Mr Bain. The applicant initially had gone to the wrong car park, and then is shown walking in the direction of the appropriate car park. There is nothing of any further relevance recorded on the CCTV footage of the exterior of the premises.

•  Among other matters, after having been being informed he was dismissed, the applicant (who is a former police officer) said words having the effect of relaying that he would not leave the matter of the dismissal uncontested because he loved his job as a bus driver. Mrs McKenzie’s characterisation was somewhat different; she recalls the applicant saying words to the effect that you will be sorry about this (i.e. about the dismissal) as conveying some form of threat - albeit the evidence as to where and when this comment was made - and it being perceived as threatening behaviour was unclear on the evidence of Mrs McKenzie.

[11] Following the dismissal on 8 December 2017, the applicant was later that day in contact with a senior constable of the NSW Police Force (i.e. consequent upon the initial report made on the day of the incident and the police obtaining the CCTV footage from the respondent). The senior constable advised the applicant he had viewed the footage and asked whether the applicant wished to proceed with assault charges against the woman. The applicant said he did wish to proceed and, in due course, he would make a statement to the police about the incident. (A police report that the applicant later was to obtain pursuant to an application under the Government Information (Public Access) Act 2009 (NSW)(“GIPA”) was in evidence. That report sets out, among other matters, that it appears the applicant’s actions, with him described as the “victim” in the matter, “are justified”. I respectfully concur with the assessment of the senior constable in such respects.)

[12] The dismissal was communicated and effected on Friday 8 December 2017, albeit by letter dated Monday, 11 December 2017 the respondent wrote to the applicant as follows - apparently suggesting the applicant was being dismissed with immediate effect as of that later date of 11 December 2017:

“Re: LETTER OF DISMISSAL

Dear Mr Cahill

This is to advise you that due to breaches of SERIOUS MISCONDUCT,

Red Bus Services no longer require your services and you are hereby dismissed from employment with Red Bus taking effect immediately.

Please be advised that on Friday 8 December 2017 you were requested to attend an interview with David Bain, the Planning & Development Manager of Redbus Services Pty Ltd. This was due to an incident that occurred in a bus that you were driving on Wednesday 6 December 2017. On being shown the cctv footage of the incident and being questioned about your actions that lead up to the incident you became very aggressive and started yelling.

Please Note; Your actions and not being able to provide an adequate response as to why you did not follow correct procedure on 6 December 2017 at most merited a written warning.

1: Not wearing a seat belt while driving and,

2: Leaving the drivers seat to approach and confront a person outside the bus and,

3: Pushing a female passenger who had boarded the bus.

However as your yelling could be heard throughout the whole office block, the General Manager, Samantha McKenzie intervened, you continued to yell at her and went on to make inappropriate accusations towards her. When she couldn’t get you to calm down and see reason she informed you that you were dismissed and to leave the premises.” (My underlining)

[13] On 13 December 2017, the respondent issued an Employment Separation Certificate indicating that the reason for separation (specified as having occurred on 8 December 2017) as being “Unsatisfactory work performance” and “Misconduct” as an employee, with further detail specifying “Breach of company policies and procedures.”

[14] The applicant is now required to have blood tests every three months to determine whether he may have contracted anything as a result of having been spat upon by the woman. The applicant also made a workers’ compensation claim which has been accepted by the insurer and, at least to the date of the hearing before the Commission, had been unable to work/seek alternative employment for a period of time.

Criteria for considering harshness etc.

[15] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain matters. I turn now to consider those matters.

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)

[16] While the incident with the woman on 6 December 2017 formed part of the background to the dismissal (which the respondent wrote in the letter as to the termination of employment “at most merited a written warning”), it was what unfolded at the workplace on 8 December 2017 that formed the immediate trigger for the dismissal.

[17] Shortly stated, the respondent’s case was that in the discussions on 8 December 2017, initially with Mr Bain and then also involving Mrs McKenzie, the applicant engaged in serious misconduct by, particularly, shouting, being abusive and making unsubstantiated allegations concerning Mrs McKenzie’s past involvement in relation to the two teenage boys. The submissions for the respondent read, in part, “The Applicant’s defensiveness and intolerance to the questions from Mr Bain on 8 December 2017, which the applicant saw as allegations of wrongdoing against him, led the Applicant to behave in an unreasonable way towards his employer which was totally inconsistent with his employment contract.” Additionally, the respondent’s case contended, Mrs McKenzie and Mr Bain feared for their safety because of concern the applicant would act violently to them personally given the way he conducted himself in the meeting.

[18] There is sharp dispute on aspects of the evidence about what unfolded on 8 December 2017. As to those matters, particularly concerning the conduct and demeanour of the applicant, and the content of what was said, I strongly preferred the evidence of the applicant. For instance, Mr Bain’s evidence in the proceedings was that he did not state to the applicant that the police had informed him that they were considering charging the applicant; however, a contemporaneous file note signed by Mr Bain and dated 8 December 2017 (the date of the dismissal), which was attached to the Form F3-Employer Response to Unfair Dismissal Application, notes that Mr Bain had that day informed the applicant of the same about the police. This, in turn, also may be compared to and contrasted with what was set-out in contemporaneously-recorded police records obtained pursuant to the GIPA application.

[19] There is no CCTV footage of what unfolded during the meeting in the office on 8 December 2017 as it initially concerned the applicant and Mr Bain, and then also Mrs McKenzie. The versions of what occurred are largely incompatible or even irreconcilable. I am bound to make findings as to such matters, given the centrality in the respondent’s case as to what unfolded in the meeting. To the extent of relevant inconsistencies, I generally preferred and accept the applicant’s description of his own demeanour, behaviour and conduct, and as to matters said in the discussions, as against what was described in the evidence for the respondent. The applicant presented as an impressive and credible witness, and measured in his evidence.

[20] The applicant himself acknowledges that he strongly disagreed about what was said to him in the discussions by Mr Bain and described it as involving “heated conversation”, with both voices raised; but I accept the applicant did not display that disagreement with the purported aggressiveness, “yelling”, “screaming” and abusiveness alleged by the respondent.

[21] My conclusions in such respects as to whose version I prefer concerning the contested matters in the witnesses’ evidence are reinforced, to some extent, by certain of what is otherwise recorded in CCTV footage at the respondent’s premises. That is, after the applicant had been dismissed by Mrs McKenzie during the meeting in the office, he initially went to a different room at the workplace. Mrs McKenzie’s evidence indicated that she next heard the raised voice of the applicant coming from the other room and that she thereby entered that room. The CCTV footage records the applicant, in fact, entering the room and calmly commencing a conversation with another employee without any outward hint of agitation or, for example, appearing to be shouting. Within a matter of seconds of that conversation commencing, Mrs McKenzie enters the room. Mrs McKenzie is filmed in what appears to be a state of annoyance while the applicant just stoically stands, occasionally nodding, as Mrs McKenzie apparently upbraids him, including with hand motioning. The interaction concludes with the applicant giving keys to Mrs McKenzie. Moreover, Mrs McKenzie is later seen walking after/following the applicant as he went to one of the work carparks after the dismissal – which tends to belie the contentions about concern in relation to the applicant’s supposedly aggressive and threatening demeanour, and fears about violence from him.

[22] A review of the CCTV footage that is available from the respondent’s premises all points to the applicant conducting himself in a way that was, as the applicant’s submissions contended, “cool, calm and collected”. My preference for the evidence of the applicant is also formed by an examination of the evidence and the range, I am bound to note, of inconsistencies in the evidence adduced in the respondent’s case.

[23] I am not satisfied there was a valid reason for the dismissal, because I prefer and accept the applicant’s evidence concerning his conduct in the discussions on 8 December 2017. I accept the submissions for the applicant that the decision to terminate the applicant’s employment was made by Mrs McKenzie as, in effect, “a rash decision” in connection with him passing comment upon her own actions concerning the earlier incident involving the two boys.

Whether the person was notified of that reason

[24] The applicant’s was peremptorily dismissed during the meeting on Friday, 8 December 2017 (albeit later given a payment with respect to notice). By letter dated Monday, 11 December 2017 the respondent later wrote by way of notification of reason: “… as your yelling could be heard throughout the whole office block, the General Manager, Samantha McKenzie intervened, you continued to yell at her and went on to make inappropriate accusations towards her. When she couldn’t get you to calm down and see reason she informed you that you were dismissed and to leave the premises.” While that was the notification of the reason for the dismissal, I do not, as noted above, accept that characterisation of matters.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[25] The applicant was not given an opportunity, or any reasonable opportunity, to respond to matters alleged concerning his conduct.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[26] The applicant was not given an opportunity to have a support person present to assist at any discussions relating to the dismissal.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[27] The dismissal did not turn on matters concerning unsatisfactory performance, and so this criterion is not relevant.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/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

[28] The evidence indicated the respondent employs approximately 150 employees. Despite its size, there was no evidence the respondent has any dedicated human resource management specialists or expertise. The manner in which the circumstances of the applicant’s dismissal unfolded speaks, in some ways, to the lack of relevant expertise as to such matters.

Any other matters that the Commission considers relevant

[29] Taken collectively, the dismissal was characterised by lack of a valid reason coupled also with substantive and procedural unfairness. At its highest, it may have been the case the applicant properly ought not to have made reference to Mrs McKenzie about her own involvement in any earlier incident, but in the context of what had unfolded in relation to the incident involving the woman and what then was being put to the applicant at the meeting, it was a perhaps not unnatural reaction or response for the applicant to make reference to that matter. As the submissions for the applicant noted, following a distillation of certain matters from the evidence, the evidence supports a conclusion the applicant’s reaction in making accusations concerning Mrs McKenzie was entirely reasonable in these circumstances, albeit unfortunate; but it certainly does not support the conclusion that this reaction amounted to a valid reason to terminate the applicant’s employment for serious misconduct.

[30] All matters considered, I am satisfied the dismissal was harsh, and unreasonable, and unjust.

Remedy

[31] I am satisfied the applicant was a person protected from unfair dismissal at the time of his dismissal and that he was unfairly dismissed by the respondent, and that he should have an order for an unfair dismissal remedy in his favour. The applicant seeks an order for reinstatement. I am satisfied that it would be appropriate to make an order for the applicant’s reinstatement by reappointing the applicant to the position in which he was employed immediately before the dismissal. I also consider it is appropriate, collaterally, to make an order to maintain continuity.

[32] In reaching these conclusions, I have carefully considered the witness evidence and submissions of the respective parties concerning reinstatement – including the evidence of the witnesses in the respondent’s case as to matters effectively including, but not limited to, loss of trust and confidence in the applicant. I have also considered that the cases, respectively, for the applicant and respondent contended for sharply differing versions of what unfolded in the meeting on 8 December 2017 and the submissions around such matters.

[33] The applicant explained that he would like to return to his role as a bus driver and believes he could do so, and continue to perform his role in a professional and productive manner into the future. I accept that to be the case; there is no cause to consider the applicant would not perform his duties as a bus driver properly and competently. As to the practicability of reinstatement, I have noted that, as a bus driver, the applicant would be away from the bus depot and on the road for the majority of his work time (about 95 per cent), as opposed to spending the majority of his working time in an office environment-type close proximity (the evidence indicated a low level of everyday interaction with Mrs McKenzie and Mr Bain). Notwithstanding my consideration of the evidence and submissions for the respondent as to the concerns or reservations about interacting with the applicant were reinstatement to be ordered, the evidence indicated there had been, in a practical sense, only a handful of day-to-day interactions between the applicant, Mr Bain and Mrs McKenzie prior to the dismissal; and I have not accepted as being reasonably-based the evidence about purported fears of violence, aggression and the like. Moreover, I simply do not accept that there would be any reasonably-based apprehension that the applicant would, for example, act aggressively or violently towards Mr Bain or Mrs McKenzie following the reinstatement. There is also the unfortunate matter as to the nature of some of the allegations and counter-allegations concerning conduct, and the unfortunate flavour of some of those matters - particularly, I might note, as addressed the characterisations by the respective representatives.

[34] I have given detailed consideration to such matters in relation to the practicability or appropriateness of reinstatement. On my consideration of matters as to specific and overall matters, I am satisfied that reinstatement is appropriate. For instance, to the extent there would be interactions between the applicant, Mr Bain and Mrs McKenzie at the bus depot in connection with the reinstatement order, those interactions should reasonably be expected to be professional and courteous – as would be expected in any employment relationship involving any employee and managers following reinstatement. I fully expect that each of those involved in some of the regrettable circumstances of this matter is quite capable of putting matters behind them and display detached professionalism and courtesy into the future in connection with any or all workplace-related interactions.

Form of order

[35] Given some of the evidentiary uncertainty around matters such as lost wages and the arrangements in so far as return to work is concerned where there has been insurer acceptance concerning a workers’ compensation injury, the parties’ representatives should now confer about settling a proposed draft order to give effect to the conclusions in this decision.

[36] The matter will be relisted to give the parties the opportunity to address the Commission on the form of the proposed draft order and/or to hear the parties on the potential need for any further evidence or submissions as may be relevant concerning matters such as the date for return to work in the order and/or any order for lost wages. A notice of listing will issue separately.

COMMISSIONER

Appearances:

G Webb, Transport Workers’ Union of Australia, for the applicant.

I MacDonald, The Australian Public Transport Industrial Association, for the respondent.

Hearing details:

2018.

Sydney:

March 15, 16.

Final written submissions:

27 April 2018.

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