DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Prateek Bharadwaj
v
Transdev WA Pty Ltd T/A Transdev
(U2020/16071)

COMMISSIONER WILLIAMS

PERTH, 4 AUGUST 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Prateek Bharadwaj (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Transdev WA Pty Ltd T/A Transdev (Transdev or the Respondent).

[2] At the hearing the Applicant gave evidence on his own behalf and for the Respondent evidence was given by Mr Brendan Duroiselle (Mr Duroiselle), the Manager – People and Culture of the Respondent and Mr Robert Parton (Mr Parton), the Respondent’s now Managing Director but previous Head of Business Operations.

Factual findings

[3] The Applicant was first employed by Transdev in March 2011 as a bus driver.

[4] The Applicant was employed full-time.

[5] Since June 2011 he has worked out of Transdev’s City CAT depot located in Perth.

[6] He estimates that at the time of his dismissal there were approximately 72 other employees engaged to drive buses from that depot. Other casual employees also operate the buses.

[7] The Applicant’s evidence was that Transdev applies a procedure to cover known or predictable staff absences which is detailed in its “Voluntary Overtime Allocation Procedure”. 1

[8] The first paragraph of this procedure is titled “Context” and reads as follows,

“The following procedure outlines the process for ensuring transparency, fairness and equity in the allocation of voluntary overtime across driving staff. All available voluntary overtime will be allocated so as to ensure all elements of fatigue management are maintained.”

[9] Under the heading “Long-Term Absence/Open Roster Lines/Known Absence” it is explained that allocation will be in accordance with prescribed guidelines, the third of which reads as follows,

“Duty lines covered prior to first post roster will not contribute towards the voluntary overtime priority list with the exception of shifts assigned as voluntary Star Days.”

[10] The Applicant’s evidence was that on the weekly roster at the depot there was usually a list of employees who did not have permanent work and it was usually the responsibility of those operators to cover the known or longer-term absences of other permanent employees.

[11] His evidence was that he understood that the replacement operators were not paid at a higher hourly rate to provide leave cover. His evidence was that operators who were rostered to work additional hours were still paid at their ordinary hourly rate provided they did not work more than 38 hours per week. 2

[12] In mid-January 2020, the Applicant began to experience pain in his back, neck and left shoulder and also suffered pain in his left hip and lower back.

[13] He first reported this to Transdev on 16 January 2020.

[14] He underwent a number of tests and by the end of March 2020 the pain he was experiencing had continued to worsen.

[15] The pain was…

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: [2021] FWC 4639
Decision Date: 4 AUGUST 2021

CaseChat Overview and Summary

Prateek Bharadwaj brought proceedings against Transdev WA Pty Ltd, trading as Transdev, in the Fair Work Commission. Mr Bharadwaj claimed that his dismissal was harsh, unjust, or unreasonable, constituting an unfair dismissal under the Fair Work Act 2009. Transdev, on the other hand, defended the dismissal, asserting that it was justified based on valid reasons related to Mr Bharadwaj's capability and conduct.

The primary legal issue for the Commission to decide was whether the dismissal was indeed unfair within the meaning of the Act. This required a consideration of whether the dismissal was within the range of responses open to a reasonable employer in the circumstances, and if so, whether it was procedurally fair. The Commission had to evaluate the evidence and arguments presented by both parties regarding the reasons for the dismissal, the process followed, and the proportionality of the dismissal in relation to the circumstances.

The Fair Work Commission found that the dismissal was not harsh, unjust, or unreasonable. The reasons provided by Transdev for the dismissal were substantiated and aligned with the company's policies. The process followed by Transdev was fair and appropriate, and the dismissal was proportionate to the conduct that led to it. Consequently, the Commission determined that the dismissal was reasonable and within the bounds of procedural fairness.

As a result, the application for an unfair dismissal remedy was dismissed, and no orders were made in favour of Mr Bharadwaj.

Orders