Ralph Kainzinger v Transit Australia Group T/A Sunbus
[2018] FWC 6914
•18 DECEMBER 2018
| [2018] FWC 6914 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ralph Kainzinger
v
Transit Australia Group T/A Sunbus; Transit Australia Pty Ltd; Marlin Coast Sunbus
(U2018/6722)
COMMISSIONER SIMPSON | BRISBANE, 18 DECEMBER 2018 |
Application for an unfair dismissal remedy – serious misconduct – whether conduct fell within definition of discrimination under anti-discrimination legislation – conduct a valid reason for dismissal – application dismissed
[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Ralph Kainzinger who alleges that the termination of his employment with Transit Australia Group Pty Ltd T/A Sunbus (Sunbus) was unfair.
[2] Mr Kainzinger commenced employment with Sunbus on 29 September 2009 as a full time bus driver until his termination on 14 June 2018, a period of approximately 8 years and 8 months.
[3] Sunbus provides bus services as public transport across the Cairns region under contract with Translink, an agency of the Queensland Government’s Department of Transport and Main Roads. Cairns Sunbus employs 141 bus drivers the majority of whom are full time.
[4] Mr Kainzinger’s termination letter provided that Sunbus had found him to have engaged in serious misconduct on 9 June 2018 towards a passenger on his bus. Sunbus alleged that Mr Kainzinger’s conduct was in breach of anti-discrimination legislation, Sunbus’ Code of Conduct, Equal Employment Opportunity Policy, and Bullying, Harassment and Discrimination procedure.
[5] Mr Kainzinger denied saying anything racist or discriminatory to a passenger on 9 June 2018. Mr Kainzinger said the dismissal was harsh, as the dismissal was disproportionate to the gravity of the alleged incident in circumstances where the customer sought to avoid paying the bus fare and was not personally offended by Mr Kainzinger’s comments. Mr Kainzinger submitted further that he was not afforded procedural fairness in the manner in which he was dismissed.
[6] Mr Kainzinger is seeking orders for compensation.
[7] The matter was listed for hearing in Cairns on 26 and 27 November 2018. Mr Kainzinger was represented by Mr John Hartigan, Industrial Relations Advocate, and Mr Philip Astley of Astley Associates Solicitors at the hearing. Sunbus was represented by Mr Paul Harris, Workplace Relations Manager for Transit Australia Group.
[8] Mr Kainzinger gave evidence 1 and called two other witnesses, Mr Roka James2 and Ms Nita Pun.3 On Thursday 22 November Mr Kainzinger’s representative filed an application seeking that the Fair Work Commission (the Commission) issue orders requiring Mr Ashley Barbour and Mr Gordon Bonnar to attend the hearing to give evidence. Sunbus agreed for Mr Barbour to be released from duty to give evidence (which he did) and no order was issued for Mr Barbour on that basis. I declined to issue an order that Mr Bonnar be ordered to attend as I was not satisfied by the reasons provided for seeking the order that it was appropriate to do so.
[9] Sunbus called one witness Ms Jacqueline Williams, its General Manager who provided a statement. 4 All of the witnesses were required for cross examination.
[10] An issue arose in the course of the hearing on the first day when the zoom recording device used as an alternative to a court reporter malfunctioned and ceased to operate. The hearing was adjourned. It was subsequently discovered that the audio file on the device had been corrupted when the recording device malfunctioned and the recording of proceedings from commencement at approximately 2.00pm on Monday 26 November until approximately 4.30pm on Monday 26 November could not be recovered.
[11] On that basis no audio recording of the evidence for the first day of hearing, including the evidence of Mr James and Mr Kainzinger existed. A replacement recording device was obtained from Brisbane overnight for the second day of hearing, and at the commencement of the second day the parties were appraised of the situation. It was proposed that the Commission read into the record the Commission’s summary of the evidence and ask the parties to indicate whether they were prepared to proceed on the basis of the summary. Following some further brief submissions from the bar table from the representatives of the parties it was agreed the matter could proceed on the basis that the parties were content with the summary of the evidence placed on the record on the morning of the Tuesday 27 November 2018.
The 9 June 2018 Incident
[12] The parties disputed the facts surrounding the incident on 9 June 2018 that lead to the customer complaint being issued about Mr Kainzinger.
[13] Sunbus’ recount of the 9 June 2018 Incident is contained in the witness statement of Ms Jacqueline Williams. Translink received a complaint from a bus passenger which was forwarded from Translink to Sunbus to action. The complainant was not identified in the complaint. The customer complaint form issued in respect of Mr Kainzinger was annexed to Ms Williams’ statement. It recorded that Mr Kainzinger was the bus driver on 9 June 2018 and described the incident as follows: 5
“Customer is complaining on behalf of a passenger facing racial discrimination from the bus driver of the 111 service leaving from Roberts Drive near Moresby Street (HnR), Trinity Beach at 4:25pm where the customer then got off at Captain Cook Hwy at Arawa St, Kewarra Beach.
Customer is disgusted at the bus driver telling the passenger to go back to where he came from, and he was being racist to this customer quite loudly in the bus for everyone to hear.”
[14] Ms Williams stated that, following receipt of the customer complaint, she reviewed CCTV footage of the incident. Ms Williams said that there were two channels of video available, but that only one had audio. Ms Williams said the video with audio had loud engine noise in the background, but that “when we reduced the noise at lower frequencies, the audio became even clearer”. 6 Ms Williams deposes that her transcript of the incident is as follows:
“Passenger: “You are a crazy driver you know, you really are…”
RK: “That is why you go to university, you know…”
RK: “It is outdated, it is outdated…I don’t care what …your card is outdated”
Passenger: “You have a problem…[inaudible]”
RK: “Go back to your country if you didn’t get paid properly…”
Passenger: [Inaudible]
RK: “Are you sure about that?”
[Conversation ends]”
[15] Ms Williams also included the written Incident Report Form completed by Mr Kainzinger in her statement, which provides as follows: 7
“While doing a Route 111 Northbound to Kewarra Beach, I picked up a TI or New Guinea Couple at the Uni. They both showed me their Uni student cards, but both cards are out of date. The female showed me her pension card which is valid until September but due the fact that her partner [sic] Uni card is not valid anymore, we starting having an intense argument about the fare.
Due to the fact that I am already under a lot of personal stress and the face [sic] that the male passenger was playing games by holding his big thumb over the expiry date, I worked myself up with my anger. Even though he insisted that he is still a Uni student his female companion paid $2 dollars for the fare from the Uni to Trinity Beach. He also insisted that he does not have to pay anything at all and that did do anything to my stress. I do not tolerate people when they are playing games.
When they both got off at the shops in Trinity Beach he said to me that I am a crazy driver. Due to the fact that I do not enjoy the company of game players and I was still stirred up from early on, I told him to go back to his country. I am very sorry for making this poor statement under these circumstances and I should have handled it better.”
[16] Mr Kainzinger’s affidavit as well as the affidavits of Mr Roka James and Ms Nita Pun also addressed the facts of the 9 June 2018 Incident. Mr Kainzinger recounted his version of the Incident in his affidavit: 8
“…I was called a crazy man or driver and criticized for ‘ripping them off’ $1.40 by insisting on the full fare. I replied that if they were unhappy about bus policy or the law they could always go home by other means or get a lift from friends.
I acknowledge that in my Incident Statement which I felt I was more or less forced to provide, I mistakenly wrote that I said ‘go home to his country’. I did not in fact use those words at all nor any other words that could be construed as being of a racist nature whatsoever but felt pressured to write what I assumed they wanted to hear believing they wanted to go through the motions but would treat me fairly.
In their letter to me of 12th June 2018 they used words allegedly derived from an informer passenger one Angelique Stokes which suggested that another passenger had faced ‘racial discrimination’ and who allegedly told ‘the passenger to go back where he came from’…”
[17] Sunbus objected to the admission of Mr James and Ms Pun’s affidavits on the grounds that their evidence did not exist at the time of the dismissal, referring to Hyde v Serco Australia Pty Limited T/A Serco Australia Pty Limited. 9 Sunbus submitted further that they were concerned about how the evidence of Mr James and Ms Pun was obtained from Mr Kainzinger, alleging that undue pressure may have been placed upon the witnesses but without providing any evidence for the basis of that submission.10
[18] Hyde v Serco concerned a medical report obtained some months after the dismissal that contained information relating to the employee’s state of mind at the date of the dismissal. After hearing submissions on the objection I allowed the evidence of both Mr James and Ms Pun as I was satisfied the circumstances were distinguishable from Hyde v Serco. Mr James and Ms Pun were both present at the 9 June 2018 Incident and were therefore able to depose to facts in existence at the time of dismissal. In Hyde v Serco the medical evidence did not pertain to the medical condition of the applicant at the time of dismissal and therefore the applicant’s capacity at that time. In matters involving dismissal on the basis of misconduct the Commission is required to determine for itself whether the misconduct occurred.
[19] Having allowed the evidence, I have ultimately concluded that the evidence of Mr James and Ms Pun should be given little weight for the following reasons.
[20] In his affidavit, Mr James identified Mr Kainzinger as the driver of the bus on 9 June 2018 and recalled the incident as follows: 11
“I sought a concession fare to Trinity Beach which I understood was $1.40 and presented my JCU Student Card which unfortunately had recently expired which I had not noticed.
The bus driver told me it has expired and that he was sorry but the full fare of $2.80 would have to be paid.
I was annoyed at hearing this as I had to get home being tired after sitting an exam. My girlfriend Nita Pun was with me. I told the driver I was a student and he said sorry you need to pay the full fare under Queensland law as your card had expired. My said girlfriend paid the extra fare.
I then took as seat and nothing more was said at the time.
When the bus driver arrived at Trinity Beach I got up and said to Ralph [Kainzinger], “you ripped $1.40 off from me, you are a crazy man”. He then said “this is a good country but if you want to go, you can always go home by another means”. I think the driver believed as is correct that I was an international student which indeed I was.”
[21] Mr James stated further that he took no offence from anything Mr Kainzinger said to him, and that there was “absolutely nothing which could be regarded as racial discrimination or vilification”. Mr James said he later ran into Mr Kainzinger, who told Mr James he had been dismissed from Sunbus. Mr James stated he felt sorry for Mr Kainzinger. 12 He repeated in his oral evidence that he felt sorry for Mr Kainzinger.
[22] Mr James was shown the CCTV footage whilst he was giving his evidence. Mr James was asked whether after watching the CCTV footage there was anything he wished to change about his statement. He answered no. It was put to him that contrary to his written statement it can clearly be heard from the CCTV footage that Mr Kainzinger said to him the words “go back to your country”. It was put to him that despite Mr Kainzinger claiming he did not say “go back to your country” on the video it can clearly be heard that Mr Kainzinger said those words. Mr James said it was not what he heard at the time.
[23] Ms Pun deposed to similar circumstances surrounding the 9 June 2018 Incident. Ms Pun also provided the following additional information about the exchange: 13
“The driver said very little, certainly nothing in the nature of racial discrimination or abuse. So far as I recall he only said once again that he could not grant concession without proof of entitlement and may have added something along the lines “well if you don’t have the correct fare you need to make alternative travel arrangements or you can always walk home” or such like.
When we later bumped into Mr Kainzinger by accident on the street he told us he had been dismissed for racial abuse or discrimination. We both felt sorry for him particularly as he is a polite considerate man who never spoke to my partner in the manner he was accused of speaking.
[24] Ms Pun also went on to name the passenger who made the customer complaint to Sunbus as Angelique Stokes. Ms Pun also gives her opinion as to why she thought Angelique Stokes made the customer complaint; referencing the fact that Mr Kainzinger is a German and that Ms Pun and Mr James are both “dark skinned”. 14
[25] The complaint at Annexure D to the Statement of Jacqueline Williams indicates it was “received by” and “entered by” Angelique Stokes. It became apparent in the course of the hearing that the complaint sent to Translink did not require that the complainant be identified and the evidence of Ms Williams was that the identity of the complainant is still unknown. It appears Angelique Stokes was an employee of Translink who merely forwarded the complaint on.
[26] The first difficulty with the evidence of both Mr James and Ms Pun is that they present differing accounts of what was said by Mr Kainzinger. It also appears at least Ms Pun may have seen a copy of the customer complaint (Annexure D to Statement of Jacqueline Williams) prior to writing her affidavit, as Ms Pun refers to Angelique Stokes as the complainant which does not appear on any other document. Ms Pun was taken during her oral evidence to paragraph 12 of her statement and asked if they were her words. Ms Pun appeared to answer she had to rush. Whilst it was not entirely clear, Ms Pun indicated the statement represented what she believed to be true.
[27] Another difficulty with the evidence of both Mr James and Ms Pun is that their accounts of the events bear little resemblance to what is revealed by the video and audio on the CCTV footage concerning two separate exchanges revealed in the video.
[28] The first exchange between the times of 16:19:30 and 16:20:15 shows Mr Kainzinger being unnecessarily aggressive, abusive, demeaning and belittling in his conduct directed toward Mr James including a condescending comment concerning Mr James being at university. Ms Pun decides to step forward to defuse the situation and pays the additional fare. Whilst Mr Kainzinger was entitled and could properly raise the fact of Mr James student card having passed its expiry date, the abuse was completely unnecessary and unwarranted. Mr James’ attempt to indicate he was a student did not warrant Mr Kainzinger losing his temper and becoming abusive. Further, contrary to Mr Kainzinger’s evidence, the CCTV does not support the claim that Mr James was somehow attempting to be deceptive by obscuring the date on the student card. He appears to just show the card to Mr Kainzinger.
[29] The second exchange occurs between the times of 16:38:30 and 16:39:06 when Mr James and Ms Pun alight the bus. As he is leaving the bus Mr James makes a comment to Mr Kainzinger to the effect that he is a crazy driver however the tone of the comment appears mild compared to Mr Kainzinger’s response which immediately escalates to a loud, aggressive and abusive tirade saying words to the effect of “that is why you go to university…” and ending with “go back to your country” followed by some further words which are difficult to decipher.
[30] As set out above when it was put to Mr James that Mr Kainzinger can clearly be heard on the CCTV footage saying “go back to your country” Mr James said it was not what he heard at the time.
[31] Ms Pun was referred to paragraph 10 of her statement and asked whether after watching the CCTV footage there was anything in her statement she wished to change. Ms Pun’s response in her oral evidence appeared to be that the CCTV was different from her statement but she did not mind what had been said.
[32] The CCTV footage is sufficiently clear to discredit the evidence of both Mr James and Ms Pun in terms of the nature of the exchange and what was said by Mr Kainzinger. It leaves open the inference that both Mr James and Ms Pun felt sorry for Mr Kainzinger having lost his employment because of events they were involved in on the day and were attempting to assist Mr Kainzinger regain his job.
[33] The credibility of Mr Kainzinger as a witness was also undermined by his own evidence. In his original version of the event provided in his own Incident Report he admitted that he said to Mr James words to the effect of ‘go home to his country’, however in his evidence for the hearing he claimed this was a mistake and he did not use those words and only said it (in the Incident Report) because he felt pressured to write what he assumed Sunbus wanted to hear.
[34] The difficulty for Mr Kainzinger is that the CCTV footage is sufficiently clear in order to be satisfied he did say words to Mr James consistent with his original version, and not the version he gave in his evidence to at the hearing.
[35] During his oral evidence Mr Kainzinger appeared to contradict his affidavit. His evidence was different from both his initial Incident Report, and his affidavit claiming he said words to the effect of “if you don’t like the laws in Australia then you have the choice to go back to your country”. This was a different version again.
[36] In oral evidence Ms Williams said Mr Kainzinger claimed Mr James was covering an expired date on his card but she could not see that from the CCTV footage. Ms Williams said after the initial conversation occurred (with Mr James) that is when she would have expected Mr Kainzinger could have dropped the issue, however Mr James produced his card again, and Mr Kainzinger made a very derogatory comment to Mr James about being at university and at this point Ms Pun comes down to defuse and calm the situation down and pay the full fare.
[37] Ms Williams said that later in the CCTV footage Mr Kainzinger seemed quite agitated, and as Mr James got off the bus he appeared to make statements to Mr Kainzinger and Mr Kainzinger could have ignored them, but made a further derogatory comment to Mr James about going to university. Ms Williams said the passenger was off the bus at this point and Mr Kainzinger could have defused the situation, but continued to have the debate about the card being invalid, makes another derogatory comment, and then the racial comment in front of other passengers. Ms Williams said Mr Kainzinger made a further comment as the passenger was walking away.
[38] In regard to a later section of the CCTV footage Ms Williams said she observed two other passengers on the CCTV footage make comments about Mr Kainzinger’s behaviour. Ms Williams said as numerous people heard the conversation and disapproved of it the complaint could have been from anyone. The CCTV footage was admitted into evidence through Ms Williams. 15
Sunbus Code of Conduct, EEO, Bullying, Harassment and Discrimination Procedure and Driver Handbook
[39] Mr Kainzinger denied any allegation that his comments regarding the 9 June 2018 incident were racially motivated. He instead submitted that his comments were “an instantaneous “off the cuff” retort to serious provocation by the passenger”. Mr Kainzinger acknowledged that the words he used might have been considered rude or abrupt, but could not have fallen within the ambit of racial discrimination. 16 Mr Kainzinger submitted that there were no clear directions in the Sunbus Code of Conduct or provided by training to guide and assist him in trying to deal with fare evasion or passenger abuse of the type encountered.17
[40] Mr Kainzinger submitted further that the dismissal letter given to him referred to “serious misconduct in accordance with our Employee Code of Conduct”. Mr Kainzinger referred to page 7 of the Code of Conduct which defines “discrimination” as “…when an employee is discriminated or harassed in the workplace due to race, gender etc.”. Mr Kainzinger therefore submitted that his dismissal for his actions “in breach of the Code of Conduct” is unfair in circumstances where there was no discrimination and no discrimination against any other Sunbus employee by him. 18
[41] The Code of Conduct was annexed to the statement of Ms Williams and provides relevantly: 19
“DISCRIMINATION
TAG is committed to ensuring the workplace is free from discrimination towards employees, customers and the wider community. Any form of discrimination is unacceptable and will not be tolerated under any circumstances. All complaints relating to discrimination will be thoroughly investigated.
What is discrimination? It occurs when an employee is discriminated or harassed in the workplace due to race, disability, criminal record, gender, union affiliation, political opinion, age, marital status, sexual preference or religion…”
[42] Sunbus submitted that Mr Kainzinger was aware of the standard of conduct expected by Sunbus towards members of the public. Sunbus submitted further that the Code of Conduct was distributed to all employees of the Transit Australia Group and that the Code of Conduct makes it clear that matters involving discrimination or vilification will be treated as serious misconduct that may result in instant dismissal. 20
[43] Sunbus said that Mr Kainzinger also received regular training on the Code of Conduct including matters involving discrimination and vilification. 21 Sunbus provided that Mr Kainzinger last attended refresher training on the Code of Conduct on 25 January 2017.22
[44] Sunbus submitted that Sheldon-Collins v Broadspectrum (Australia) Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum, 23 applies to the Code of Conduct which should be read to include discrimination towards members of the public as well as other employees. Sunbus said that this interpretation is practical and sensible given that the anti-discrimination legislation on which it is based covers both employees and the general public, as does the training provided by Sunbus on the Code of Conduct.24
[45] Ms Williams was asked during her oral evidence what she meant by ‘racism’ and she replied telling someone to go back to their own country. It was put to her that this is not racism and she said it is referring to someone as being different. It was put to Ms Williams that in the Applicant’s submissions the comments of Mr Kainzinger could not constitute racial discrimination as defined in the Racial Discrimination Act. In her evidence Ms Williams also referred to Sunbus’ EEO, Bullying, Harassment and Discrimination Procedure. 25
[46] Ms Williams referred to the Sunbus Drivers Handbook at section 2 Customer Service, and also the ticketing section at clause 2.5 which includes the following:
“In a situation where a customer does not have enough money, or refuses to purchase a ticket, remind them it is illegal to ride the bus without a ticket. You can refuse adult entry onto the bus where they refuse to pay a fare. If a customer is showing signs of aggression remember that it is not worth having a conflict with a customer over a minor fare payment – simply allow the customer to board the bus, and press the fare evade button where available.”
[47] Ms Williams referred to clause 2.6 Dealing with Difficult or Aggressive Customers. Ms Williams referred to parts of this section of the Handbook to indicate Mr Kainzinger did not comply with it. Ms Williams also referred to 4.4 of the Handbook regarding mobile phones and 4.7 regarding seat belts.
[48] Ms Williams gave evidence that drivers received training and refresher training in this information. Ms Williams said the 2017 refresher training covered issues including phones, seat belts and deescalating matters with passengers.
[49] In the course of his oral evidence Mr Kainzinger was asked if he was in the same situation again where Mr James did not have a valid card, whether he would he do the same thing. He responded yes, and said he was doing his job. Mr Kainzinger said some bus drivers turn away and let people on without a valid card but he doesn’t do that. He said Mr Bonnar his supervisor told him not to stand up to people who do not have a valid card or money in case they become violent but he doesn’t do that because of the principle.
[50] It was then put to Mr Kainzinger that he had been advised by his supervisor not to do what he did for his own safety to avoid violence and he did it anyway, and Mr Kainzinger replied by answering yes, because he was standing up for his principals. It was then put to Mr Kainzinger that he was saying that this could risk his own safety but he still chose to do it, and he answered yes.
[51] Mr Barbour gave evidence that he had been employed by Sunbus for just under 10 years at the Cairns Depot and started as a driver but now works in the control room. Mr Barbour agreed that dealing with the public over fares can be an issue.
[52] He gave evidence about having received training from the employer on the how to talk to passengers, and how to handle difficult passengers. Mr Barbour said the training included that if there was a difficult passenger regarding a fare just to let them on. In the case of a concession card that was not valid the training was to just let them on but explain to them to renew the card.
[53] Mr Barbour agreed that discrimination was also covered in the training, including not making an offensive comment regarding someone’s race or place of origin. Mr Barbour was asked if words to the effect of “go back to your country” were said to a passenger whether he would regard it as racial in nature. Mr Barbour said he thought it would be and added that it shouldn’t be said anyway.
[54] It appeared from Mr Kainzinger’s oral evidence that he had not, and did not intend to follow what he had been directed to do in regard to matters of this nature. Mr Kainzinger was in effect admitting he did not follow a direction from his supervisor and acted contrary to the direction, despite the direction being consistent with the existing Sunbus policy that Mr Kainzinger had also received training in.
[55] Mr Kainzinger’s evidence concluded on the first day of the hearing, however early on the second day of the hearing Mr Kainzinger’s representatives tendered a further affidavit 26 from Mr Kainzinger seeking to “deal with what might have been a wrong impression” about his evidence from the previous day on this point and stating among other things that he fully realised the mistake he made, had apologised for it, and would not repeat such behaviour. This further affidavit claimed he understood and supported Sunbus policy. I indicated when the document was tendered I may give it little weight. What was said in the further affidavit was at odds with the oral evidence given by Mr Kainzinger the previous day. In the circumstances I regard the further affidavit as self-serving and have decided not to have much regard to it.
[56] Mr Kainzinger was also asked if he could see a school child on the CCTV and he said yes. He was asked whether he thought the conversation (between himself and Mr James) was an appropriate conversation in front of school children. He said he didn’t use the F word. Mr Kainzinger said it did get a bit heated and sometimes you can’t control your emotions. Mr Kainzinger observed that parents sometimes have heated conversations in front of their children.
Manner of Dismissal
[57] Mr Kainzinger submitted that there were serious flaws with Sunbus’ investigation into the 9 June 2018 Incident. 27 Mr Kainzinger said the CCTV evidence of the Incident had insufficient audio to substantiate the alleged verbal comments and at no stage did Sunbus seek to identify or obtain evidence from the supposed victim of his alleged comments.28
[58] Mr Kainzinger also submitted that he was not afforded procedural fairness by Sunbus, who:
“…acted in haste after a meeting at the Bus Depot where Mr Kainzinger was put under considerable pressure, nay, duress and stress in respect of the comments made by him…”
[59] Mr Kainzinger submitted in the alternative that Sunbus’ argument that Mr Kainzinger admitted to making the comments at this meeting is inconsequential. Mr Kainzinger submitted that his admission could not substantiate any racial discrimination in circumstances where the alleged victim and his partner have denied the comments were racially charged. 29
[60] Mr Kainzinger submitted further that he was induced to sign the Incident Report Form. 30 In reply submissions, Mr Kainzinger advanced the argument that his admission in the Incident Report Form was nothing more than “a rough statement which the Applicant felt was required of him by his employer…as a prelude to the administering of a mild rebuke for his retort to provocation”. In the alternative, Mr Kainzinger submitted that the Incident Report Form completed at the request of Sunbus amounted to self-incrimination and should be rejected as evidence.31
[61] Sunbus submitted that they gave Mr Kainzinger several opportunities to respond to the allegations, by giving him two days to respond to the complaint and by meeting with him to discuss the complaint on 14 June 2018. Sunbus also submitted that Mr Kainzinger was afforded the opportunity to have a support person present at each discussion. 32
[62] In oral evidence Ms Williams said the investigation was undertaken by Mr Mark Angeloni, Depot Supervisor and herself. Ms Williams described receiving the complaint from Translink and the requirement in Sunbus’ contract to follow up every complaint received. Ms Williams said the complaint was logged as a discrimination complaint which was treated seriously. Ms Williams said she watched the CCTV footage and referred to the discrimination procedure.
[63] Ms Williams said she called the Chief Operating Officer at Robina as she was to notify the CCO of the progress of the investigation. Ms Williams said she informed the CCO of her decision to stand down Mr Kainzinger.
[64] Ms Williams said that on 12 June 2018, she had a discussion with Mr Kainzinger about the incident and informed him that he was stood down on full pay while Sunbus investigated further. Ms Williams also says she provided Mr Kainzinger with: 33
• A letter dated 12 June 2018 with a full copy of the complaint and asking Mr Kainzinger to provide a statement detailing his recollection of events; and
• A letter dated 12 June 2018 titled ‘Allegation of Serious Misconduct’ inviting Mr Kainzinger to a meeting on 14 June 2018.
[65] Ms Williams said the second letter outlined the allegation, told Mr Kainzinger that he would have an opportunity to respond, made it clear that the outcome could result in disciplinary action including termination of employment, stated that he was welcome to bring a support person and/or seek legal advice, stated that the matter should be kept confidential and stated that he could use the company’s EAP counselling service if needed. 34
[66] Ms Williams said the letter was delivered in person to Mr Kainzinger when he returned to the depot and he was told a complaint had been received. Ms Williams said Mr Kainzinger said at the time he knew about and remembered the event and recalled it, even though Ms Williams had not even yet said what the complaint was about. Ms Williams said this indicated to her that Mr Kainzinger was expecting the complaint and knew what he did was wrong.
[67] Ms Williams said the letter was read to Mr Kainzinger and he was also asked if he had any questions about the letter and the meeting and he said no. Ms Williams said in oral evidence she handed Mr Kainzinger an Incident Report Form and he was welcome to take it home and complete it and bring it to the meeting.
[68] On 14 June 2018, Ms Williams said she attended a meeting with Mr Kainzinger and Mr Angeloni. Ms Williams says the following occurred at the meeting: 35
“I asked Mr Kainzinger if he had read and understood the allegation and whether he wanted a support person;
Mr Kainzinger acknowledged that he understood the allegation and declined the opportunity to have a support person;
Mr Kainzinger provided us with a copy of his written statement. Having read it together I asked if there was anything else he wanted to add, particularly considering the Code of Conduct regarding discrimination; and
Mr Kainzinger responded that he was aware of the Code of Conduct and the reference to discrimination and apologised for the incident.”
[69] Ms Williams said she concluded the meeting and informed Mr Kainzinger that she would contact him by phone when a decision was made. Ms Williams did not depose to when she called Mr Kainzinger but said: 36
“When I called him on his phone I offered for him to come back to the office. He said he would rather hear the news over the phone. I asked if someone was with him, again reminding him that he could have a support person present. He declined so then I advised him of the decision.”
[70] Mr Kainzinger confirmed that he was provided with letters on 12 June 2018 that directed him to attend a meeting on 14 June 2018 and to provide a statement detailing his recollections of the 9 June 2018 Incident. Mr Kainzinger also confirmed that he attended the meeting on 14 June 2018.
[71] It was put to Mr Kainzinger that he chose not to view the CCTV footage. Mr Kainzinger said it was not offered to him. Mr Kainzinger said he did not have a support person because he was not part of the Union.
[72] In the course of the cross examination of Ms Williams she was asked if she kept any notes of the meeting of 14 June 2018. The Commission was provided by Sunbus with notes of the meeting 37 that Ms Williams said were prepared by Mr Angeloni for the meeting at 10am on 14 June.
[73] Ms Williams’ evidence was the notes of the meeting were prepared after the 10am meeting and before the outcome was communicated to Mr Kainzinger. Ms Williams gave evidence that she had no way of identifying the individual who made the complaint through Translink.
Other Reasons for Dismissal
[74] Sunbus submitted that, while Mr Kainzinger had a relatively long period of employment with Sunbus, his record was punctuated with multiple warnings for inappropriate conduct. 38
[75] Sunbus have submitted a Chronology of Events which record the following relevant events leading up to the 9 June 2018 Incident:
15 January 2018 Mr Kainzinger was issued with a formal warning for urinating in a public place and failing to follow company procedures.
5 February 2018 Mr Kainzinger was issued with a final warning for using a mobile phone whilst driving, resulting in an accident and damage to a bus.
[76] A Final Warning Letter issued to Mr Kainzinger on 5 February 2018 was annexed to Ms Williams’ Statement. The Final Warning Letter recorded as follows: 39
“On 14th December 2017 you attended a meeting with Mark Angeloni and Bob Osmond. At this meeting you were advised that your conduct has been unsatisfactory; specifically, that you had urinated in a public place. You were issued with a formal warning letter dated 15th January 2018 which stated that if your conduct did not improve your employment may be terminated.
You attended a meeting on 25th January 2018 with Mark Angeloni and Bob Osmond present. In this meeting you were asked to respond to the following allegations:
1. Answering the phone while driving and involved in an accident on the 17th of January 2018 at 08:14
2. Not responding to controller instructions and subsequently dropping trips on the 23rd of January at 13:00 …”
[77] The Final Warning Letter then particularised Sunbus’ investigations into the two incidents:
“We have investigated the above allegations and have viewed the CCTV footage from the incident on the 17th January 2018. The CCTV footage has shown the following:
• You had a passenger onboard the bus while you were driving and talking on your mobile phone. You did not report this in your incident report.
• CCTV footage shows that while you are talking on your phone that you lost control of the bus and were involved in an accident.
• While on your phone you reversed the bus on a public road and did not contact control for instruction.
In a separate incident, also on the 17th January 2018, CCTV has shown the following:
• CCTV footage shows that you lost control of the bus and were involved in an accident, this can been seen as the bus shakes heavily.
• You stop the bus and hit the steering wheel and unbuckle your seatbelt.
• You reverse the bus without your seat belt on and did not call control for instruction.
• While the vehicle is in motion you take both hands off the wheel to put on your seat belt, the vehicle is travelling at 60 kms…”
[78] The Final Warning Letter concludes:
“This is a final warning letter. If significant improvement in your performance and conduct is not achieved your employment may be terminated. To reiterate, our expectation is that you follow Sunbus Employee Code of Conduct, policies and procedures at all times…”
[79] Mr Kainzinger submitted that he was not afforded procedural fairness in respect of either of the prior incidents, which additionally were not properly investigated. 40 Mr Kainzinger says that he has never been charged with any driving related offence.41 In his affidavit, Mr Kainzinger deposes to the circumstances surrounding the two prior incidents, which differ slightly from that recorded by Sunbus:42
“On 15th January 2018, when driving an empty bus, I had an urgent need to urinate and so pulled up and relieved myse1f behind bushes on land adjoining the roadway I believed was private land. I was not observed nor observable. I was issued with a formal warning for urinating in a public place and failing to follow company procedures.
On 5th February 2018 I reported by radio an incipient mechanical fault and was advised to wait with the bus to speak to a supervisor/mechanic on return to the Depot. I waited some time but nobody came. I tried using the radio but could not obtain a response. In order not to be late for my next scheduled run, I departed from the Depot. On the road but before picking up any passengers I heard my mobile telephone ringing and glancing at it (it was lying on the dash) I noticed it was the Depot calling. I commenced pulling off the road and answered the call which was to inform me that it was okay to proceed notwithstanding the incipient mechanical fault. Due to wet soil on the verge of the road the bus slid slightly sideways.
This was classified as an accident but to my great surprise and concern a final warning was later issued for "using a mobile telephone whilst driving resulting in an accident". In view of the circumstances outlined above I felt this to be entirely unjustified and harsh and I made my views known to Management. This I suspect irritated them further. My Supervisor later spoke to me in person and apologized for making the call to my mobile without first radioing me to pull over.”
[80] Nine pages of documents including Incident Report Forms prepared by Mr Kainzinger in relation to the incidents that led to the Final Warning Letter were presented to Mr Kainzinger during his oral evidence and he accepted they were his handwriting and his Incident Reports and they were admitted into evidence. 43 It is apparent from this material that whilst Mr Kainzinger referred to the incident involving him talking on the phone while driving occurred on 5 February, the incident he was referring to occurred on 17 January from the accident detail report, and his own report of the incident.
[81] A further email from a Samantha Merkel of Northstar Truck and Marine dated 17 January 2017 44 was admitted into evidence. The email criticising the manner in which Mr Kainzinger was driving was put to Mr Kainzinger. He said he was not aware of the email.
[82] A separate document headed #8606 17/01/18 08:14:11 Ralph Kainzinger accidents 45 setting out a series of dot points concerning the first and second accidents of that date was put to Mr Kainzinger. The whole document was read to Mr Kainzinger. Mr Kainzinger agreed that what was written on this document was accurate.
[83] In relation to the first incident on 17 January Mr Barbour said he received a message on the two-way from Mr Kainzinger for Mr Barbour to give him a ring. Mr Barbour said he did not know the reason for the call. It was put to Mr Barbour that Mr Kainzinger rang him about a mechanical issue with the bus. Mr Barbour responded that if that was the case he should have stayed where he was and not driven off. Mr Barbour said it was normal practice to contact drivers on the two-way however the message he received was to ‘give him a ring’.
[84] Mr Barbour’s evidence was that Mr Kainzinger was waiting outside the depot at the time. Mr Barbour said when he rang Mr Kainzinger he believed Mr Kainzinger was still parked outside the depot.
[85] Mr Barbour said when he was initially contacted by Mr Kainzinger he told Mr Kainzinger he was busy and would call him back. Mr Barbour said Mr Kainzinger had been parked outside the bowser at the Depot sitting in his bus. Mr Barbour said he called Mr Kainzinger back but he never got as far as finding out why Mr Kainzinger wanted to talk to him. Mr Barbour said Mr Kainzinger answered the phone while he was driving and then had an accident. Mr Barbour said Mr Kainzinger ran off the road and hit some star pickets to answer the call.
[86] Mr Barbour said he asked Mr Kainzinger why he was driving and he said Mr Kainzinger replied “you caused me to have an accident”. Mr Barbour said that the call then concluded.
[87] Mr Barbour said that driving whilst talking on the phone was very serious and not using a mobile phone while driving was one of Sunbus’ four cardinal rules. He agreed that driving without a seat belt was also a cardinal rule. Mr Barbour said he had attended training on such matters and refresher training occurs each year.
[88] Mr Kainzinger agreed that there had been a follow up meeting after his formal warning. He said he did not remember the date however I am satisfied a follow up meeting did occur. In relation to the first incident on 17 January, Mr Kainzinger has attempted to argue that he should not have been contacted on his mobile phone. That argument is not to the point. It should have been very clear to Mr Kainzinger that answering his phone while driving was not only contrary to one of the employer’s cardinal rules but also an offence. Ms Williams pointed out that Mr Kainzinger signed the final warning and accepted it.
Was the dismissal harsh, unjust or unreasonable?
[89] In deciding whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387.
[90] Section 385 of the Act states:
“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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[91] Section 387 of the Act states:
“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.”
Valid Reason
[92] Mr Kainzinger’s own submissions in reply conceded that his comment to Mr James could be viewed as offensive or rude, but then added they were not made for racist reasons. Mr Kainzinger submitted that the comments were a retort to abuse intended to insult and provoke the driver. 46 This characterisation is inconsistent with the evidence which shows it was Mr Kainzinger who was the aggressor and provocateur not anyone else.
[93] It is true that the identity of the person who made the compliant through Translink has never been identified but the CCTV footage, and oral evidence proved that the conduct referred to in the anonymous complaint occurred.
[94] It is asserted for Mr Kainzinger that in order for his conduct to constitute racism there needs to have been some detriment suffered, and this has not occurred in this case. It is said Mr James took no offence and he suffered no impairment.
[95] The evidence demonstrated that Mr Kainzinger had previous to the events of 9 June been provided a final warning for issues in connection with failing to follow directions including driving whilst using a mobile phone that on any view was a serious matter. It is clear that Mr Kainzinger again failed to follow the procedures he had been trained to follow on 9 June regarding conduct toward a passenger. Further his conduct as directed to Mr James as demonstrated by the CCTV footage was completely unacceptable. Mr Kainzinger’s case has focussed to a large extent on an argument that his conduct did not meet the meaning of discrimination under discrimination law. The matter before the Commission does not turn on whether Mr Kainzinger offended discrimination law. As is apparent, I have been satisfied that the conduct as alleged against him did occur 47, and am satisfied on the basis of that conduct, that Sunbus had a sound, defensible and well-founded reason for dismissal and therefore a valid reason for dismissal.
Notified of the reason
[96] Mr Kainzinger was notified of the reasons for his dismissal.
Opportunity to respond
[97] It was put for Mr Kainzinger that the termination meeting occurred in circumstances where Mr Kainzinger was stressed and under duress and was unsophiscated and not in a good position to respond.
[98] The letter of allegations provided to Mr Kainzinger two days earlier set out the relevant issues and referred to the CCTV footage as part of what was being reviewed. Mr Kainzinger said in his evidence he did not see the CCTV footage and Sunbus maintained it was offered to Mr Kainzinger. Mr Kainzinger did not claim to have been denied a request to see the CCTV footage, and it is clear he was put on notice Sunbus regarded it as relevant. Mr Kainzinger admitted in his Incident Report to the use of the words to the effect of what was alleged.
[99] I am satisfied that Mr Kainzinger was given the opportunity to respond to the reasons for his dismissal, with the exception that it appears because he did not view the CCTV footage, and Sunbus relied specifically on the extent of his aggression and derogatory comments directed at Mr James he should have viewed the footage. The process would have been fairer had he seen the footage and been put on notice this was also a factor that Sunbus was taking into account however that also needs to be considered the context of his admissions in the Incident Report Form.
Unreasonable refusal of support person
[100] Mr Kainzinger was not refused a support person and was offered the opportunity to have a support person.
Warned about unsatisfactory performance
[101] The final warning of 5 February 2018 related primarily to conduct, and not performance. To the extent it did relate to performance, it was not related to the incident of 9 June.
Size of the employer’s enterprise
[102] This is not a relevant matter in this case.
Any absence of dedicated human resource management specialists
[103] This is not a relevant matter in this case.
Any other matters
[104] In closing submissions Mr Kainzinger referred to a decision in Thomas v ACT Government – Transport Canberra and City Services T/A ACTION 48 to support his submission that the decision to terminate was disproportionate to the conduct. That case is distinguishable because it was uncontested that the applicant in that matter had an unblemished record prior to the incident that led to the dismissal and also that the applicant in that matter was not the instigator of incident. I also disagree with the oral submission made in closing that previous issues that led to the final warning were performance issues and not conduct issues. Issues that led to the final warning clearly related to conduct.
[105] I am conscious that Mr Kainzinger had a lengthy period of service with Sunbus. It was also of concern that Ms Williams said in her evidence she did not look further than the previous 12 months of Mr Kainzinger’s employment history, although she clarified in her oral evidence she reviewed the disciplinary record not his entire file.
[106] It was put for Mr Kainzinger that he is a 54 years of age, of German heritage born in Papua New Guinea. Mr Haritgan conceded in closing that the level of aggression was inappropriate but that Mr Kainzinger had apologised for it.
[107] The social and economic consequences for Mr Kainzinger were said to be profound and this goes to harshness. There is no doubt that the impact of the dismissal has had significant consequences for Mr Kainzinger. Mr Kainzinger also says there are little prospects for a career bus driver of 12 years finding further work as a driver or commencing an alternative career due to his age and lack of training in other areas. 49 Ultimately the Commission must take this into account in weighing the gravity of the misconduct against other relevant factors.
Conclusion
[108] I have weighed each of the relevant matters I am required to consider under s.387 in determining whether the dismissal was harsh, unjust or unreasonable. Based on my conclusions as set out above I have determined that the dismissal was not harsh, unjust or unreasonable and on that basis the application is dismissed.
COMMISSIONER
Appearances:
Mr J Hartigan of John Hartigan & Associates and Mr P Astley of Astley Associates Solicitors on behalf of the Applicant.
Mr P Harris on behalf of the Respondent.
Hearing details:
Cairns.
26 and 27 November 2018.
Printed by authority of the Commonwealth Government Printer
<PR702204>
1 Exhibit 2, Affidavit of Ralph Andree Kainzinger sworn 9 October 2018.
2 Exhibit 1, Affidavit of of Roka James sworn 9 October 2018.
3 Exhibit 8, Affidavit of Nita Pun sworn 9 October 2018.
4 Exhibit 8(a), Statement of Statement of Jacqueline Williams signed 25 October 2018
5 Witness Statement of Jacqueline Williams signed 25 October 2018, Annexure A.
6 Witness Statement of Jacqueline Williams signed 25 October 2018 at [12.c].
7 Witness Statement of Jacqueline Williams signed 25 October 2018, at [15] and Annexure 5.
8 Affidavit of Ralph Andree Kainzinger sworn 9 October 2018 at [6].
9 [2018] FWCFB 3989 at [64].
10 Respondent’s Outline of Submissions filed 25 October 2018, at [40]-[42].
11 Affidavit of Roka James sworn 9 October 2018, at [2]-[7].
12 Affidavit of Roka James sworn 9 October 2018, at [8]-[10].
13 Affidavit of Nina Pun sworn 9 October 2018, at [10]-[11].
14 Affidavit of Nina Pun sworn 9 October 2018, at [12].
15 Exhibit 9.
16 Applicant’s Reply Submissions filed 6 November 2018, at [2(2)].
17 Applicant’s Reply Submissions filed 6 November 2018, at [7].
18 Applicant’s Outline of Submissions filed 11 October 2018, at [1].
19 Witness Statement of Jacqueline Williams signed 25 October 2018, Annexure B, page 7.
20 Respondent’s Outline of Submissions filed 25 October 2018, at [11.b]-[11.c].
21 Respondent’s Outline of Submissions filed 25 October 2018, at [11.b].
22 Witness Statement of Jacqueline Williams signed 25 October 2018, at [22] and Annexure H.
23 Sheldon-Collins v Broadspectrum (Australia) Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum[2018] FWCFB 5764 at [30].
24 Respondent’s Outline of Submissions filed 25 October 2018, at [46]-[48].
25 Exhibit 8(a) Statement of Statement of Jacqueline Williams signed 25 October 2018 annexure C.
26 Exhibit 7.
27 Applicant’s Reply Submissions filed 6 November 2018, at [2(3)].
28 Applicant’s Outline of Submissions filed 11 October 2018, at [3].
29 Applicant’s Outline of Submissions filed 11 October 2018, at [5].
30 Applicant’s Outline of Submissions filed 11 October 2018, at [9].
31 Applicant’s Reply Submissions filed 6 November 2018, at [2(3)].
32 Respondent’s Outline of Submissions filed 25 October 2018, at [31]-[32].
33 Witness Statement of Jacqueline Williams signed 25 October 2018 at [12.e].
34 Witness Statement of Jacqueline Williams signed 25 October 2018 at [12.e.ii].
35 Witness Statement of Jacqueline Williams signed 25 October 2018 at [12.f].
36 Witness Statement of Jacqueline Williams signed 25 October 2018 at [14].
37 Exhibit 11.
38 Respondent’s Outline of Submissions filed 25 October 2018, at [35.c].
39 Witness Statement of Jacqueline Williams signed 25 October 2018, Annexure M.
40 Applicant’s Outline of Submissions filed 11 October 2018, at [6].
41 Affidavit of Ralph Andree Kainzinger sworn 9 October 2018, at [5].
42 Affidavit of Ralph Andree Kainzinger sworn 9 October 2018, at [5].
43 Exhibit 4.
44 Exhibit 5.
45 Exhibit 6.
46 Applicant’s Submissions in Reply, page 4.
47 King v Freshmore (Vic) Pty Ltd PR S4213 para [23].
48 [2017] FWC 6167.
49 Applicant’s Outline of Submissions filed 11 October 2018, at [4].
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