Robert Elliott v Transdev WA Pty Ltd T/A Transdev
[2019] FWC 812
•8 FEBRUARY 2019
| [2019] FWC 812 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Elliott
v
Transdev WA Pty Ltd T/A Transdev
(U2018/9361)
DEPUTY PRESIDENT BINET | PERTH, 8 FEBRUARY 2019 |
Application for an unfair dismissal remedy – application dismissed.
[1] On 11 September 2018, Mr Robert Elliott (Elliott) filed an application (Application) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Transdev WA Pty Ltd trading as Transdev (Transdev).
[2] Transdev is one of three bus companies which provide public transport bus services under contract to the West Australian Government as part of the Transperth network. The other bus companies providing such services are Path Transit and Swan Transit.
[3] The issues in dispute between the parties could not be resolved by conciliation before a staff conciliator or before myself and the matter was listed for arbitration. Taking into account the parties’ circumstances, and their wishes, it was determined that a determinative conference rather than a hearing would be the most effective and efficient way to determine the matter.
[4] In light of this the Application was listed for hearing and determination by way of a Determinative Conference on 3 December 2018. Directions for the filing of materials in advance of the Determinative Conference were issued to the parties on 5 November 2018 (Directions).
Permission to be represented
[5] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. Mr Elliott sought permission to be represented by a paid agent Mr Patrick Mullally (Mullally), this was opposed by Transdev.
[6] Section 596 of the FW Actprovides as follows:
“596 Representation by lawyers and paid agents
(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
…”
[7] In summary, Mr Mullally submitted that he should be granted permission to represent Mr Elliott as Mr Elliott was unable to effectively represent himself because of his level of education and current mental state. According to Mr Mullally, his client, who is over 70 years of age, has been emotionally overwhelmed by his dismissal occurring at a time when he and his wife have been diagnosed with cancer.
[8] Transdev opposed Mr Elliott being granted leave to be represented. Transdev submitted that there are no complex factual or legal issues to be determined because the conduct relied upon to dismiss Mr Elliott is not denied by Mr Elliott. Transdev also submit that the relevant legal principles are simple and are captured adequately in the filed submissions of the parties. In light of this Transdev submit that granting leave for Mr Elliott to be represented would not make the proceedings more efficient. Transdev disputed that Mr Elliott is incapable of effectively representing himself and pointed out that its representative Mr Smith, the Managing Director of Transdev also has no relevant legal or other training.
[9] Cambridge C in Karkamakar v Australian Campus Network Pty Ltd[2013] FWC 2340 made the following comments about section 596 of the FW Act:
“[9]These provisions represent a more stringent requirement for the granting of permission than existed under the predecessor provisions of the Workplace Relations Act 1996. There have been a number of Decisions of the Commission which have recognised the legislative intention to broadly restrict and limit the basis upon which permission would be granted for legal (and paid agent) representation in proceedings before the Commission as compared with the Australian Industrial Relations Commission. In this respect I refer in particular, to the Decision of Harrison C in Rodney James Rogers v Hunter Valley Earthmoving Company Pty Ltd [2009] FWA 572, and the Decision of Lewin C in Chris Lekos v Zoological Parks and Gardens Board [2011] FWA 1520.
[10]Further, the legislative intention underpinning s.596 of the Act has been the subject of Judicial Review in the (incorrectly named) Judgment of Warrell v Walton (Warrell) and I refer in particular to paragraph 25 of that Judgment.
[11] Upon examination of subsection 596 (2) there appears to be three, and only three, criteria which separately or in combination, provide basis upon which the Commission can grant permission for a lawyer or paid agent to represent a party in proceedings such as the Hearing of a claim for unfair dismissal. The three criteria which can be identified in paragraphs (a), (b) and (c) of subsection 596 (2), can be paraphrased as: (a) complexity/efficiency; (b) inability; and (c) fairness.”
[10] I was narrowly persuaded to grant Mr Elliott permission to be represented on the grounds that it would enable the matter to be dealt with more efficiently and that it would be unfair as between the parties not to grant permission to Mr Elliott to be represented given Mr Elliott’s health. This assessment was made in advance of the opportunity to observe Mr Smith at the Hearing. As it turns out Mr Smith represented Transdev admirably despite his lack of legal training, vindicating my decision with respect to the granting of permission to be represented.
[11] At the Determinative Conference Mr Elliott gave evidence on his own behalf. Mr Alan Baldwin, the Assistant Depot Manager (Baldwin) and Mr Ben Lynn, the Depot Manager (Lynn) of the Joondalup Depot, at which Mr Elliott was based, gave evidence on behalf of Transdev.
[12] Final written submissions were subsequently filed by on behalf of Mr Elliott on 12 December 2018 and Transdev on 21 December 2018.
Background
[13] Mr Elliott commenced employment with Transdev as a bus operator on 21 May 2012. His written terms and conditions of employment warn that a failure to comply with Transdev polices may result in the termination of his employment. 1
[14] On 19 March 2018 Transdev received a customer complaint that Mr Elliott departed a stop early leaving school children stranded. Transdev say that Mr Elliott was counselled in relation to this incident because failing to meet its duty of care to minors constitutes a breach of Transdev’s contractual arrangements with the Public Transport Authority (PTA). 2
[15] On 6 April 2018 Mr Elliott ran a red light and collided with another vehicle causing damage to the Transdev bus he was driving and the vehicle of a member of the public and minor injury to himself and the other driver (Final Written Warning Incident). When asked to provide an explanation he said that he was unable to recall what had distracted him from seeing and acting upon the red light. During the investigation meeting into this incident Transdev discussed with Mr Elliott a number of previous work performance issues in relation to which he’d been previously counselled including: 3
a. Departing from a station 14 minutes early on 15 September 2017.
b. Departing from a stop without waiting for passengers to be seated on 10 October 2017. Transdev became aware of this issue following a customer complaint that Mr Elliott was accelerating quickly when passengers boarded and stopping hard. According to the complaint a child passenger had fallen and landed on their back because Mr Elliott departed before the passenger had time to sit down. 4
c. Failing to give right to another vehicle on a roundabout on 13 October 2017 causing a member of the public to brake sharply to avoid a collision. Transdev became aware of the incident following a customer complaint. 5
d. Colliding with another bus while attempting to park on 22 January 2018 causing minor damage to both vehicles. This incident occurred when Mr Elliott endeavoured to set down passengers between two buses. Mr Elliott had claimed that the incident occurred because the passenger had pressured him to park where he did. However Transdev say that a review of the CCTV footage revealed that the passenger was in fact standing patiently waiting for the Mr Elliott to bring the vehicle to a standstill. 6
e. Exceeding the 40km/h speed limit by 11km on 21 March 2018 in a school zone. Transdev became aware of the breach of the speed limit while reviewing CCTV in the course of investigating a complaint from a passenger that Mr Elliott had been rude to the passenger. Mr Elliott had claimed that the passenger had been rude to him and that this may have caused him to breach the speed limit. 7
[16] In light of the totality of these incidents Transdev decided to issue Mr Elliott with a final written warning and direct him to undergo one on one driver retraining. 8
[17] On 10 April 2018 Mr Elliott was issued with the final written warning. The warning stated as follows: 9
“I am issuing you with a Final Written Warning for poor work performance and wish to advise that any further incidents of unsatisfactory work performance may lead to your dismissal from this company.”
[18] Mr Elliott completed the further training as directed. Topics covered in the three day one on one training course included: contractual obligations and expectations of the company and the PTA, situational awareness, fitness for duty and fatigue management, concentration and alertness, defensive driving, distracted driving and the consequences, hazard perception, driving attitude and on road behaviour. 10
[19] The contemporaneous report of the instructor who conducted the retraining records that when initially questioned by the instructor, notwithstanding the disciplinary meeting and warning, Mr Elliott claimed he was not sure how the traffic incident had occurred and who was responsible. After viewing footage of the accident Mr Elliott conceded that he had contravened a red light and that therefore he was legally responsible for the accident. 11
[20] On 10 April 2018 Mr Elliott was also issued with another written warning (Written Warning Incident). On this occasion for failing to wear a seatbelt. 12
[21] On 7 May 2018 Transdev received a customer complaint after Mr Elliott started a journey from an incorrect location and failed to collect a passenger (7 May 2018 Incident). 13 He was counselled about this incident by Mr Baldwin on 11 May 2018.14 Transdev concede that sometimes new bus drivers take wrong routes however Transdev say it is not something which commonly occurs with experienced drivers such as Mr Elliott, particularly in circumstances in which Mr Elliott had only recently undergone driver retraining.15
[22] On 29 May 2018 Mr Elliott was counselled in relation to departing late from a station (21 May 2018 Incident). According to Transdev late departures are viewed negatively by the PTA and may affect future contract renewals. 16
[23] On 16 August 2018 Mr Elliott was involved in a road rage incident with a member of the public whilst driving a Transdev vehicle with passengers on board including school children. The incident occurred whilst Mr Elliott was changing lanes on Wanneroo Road. The incident was captured on CCTV. 17
[24] Trandev received a complaint about the incident from a customer. The complaint alleged that Mr Elliott had driven in a dangerous manner, had shouted obscenities and made rude hand gestures at a member of the public driving another vehicle. 18
[25] On 23 August 2018 Mr Lynn reviewed the CCTV footage of the incident and confirmed that Mr Elliott had indeed used obscene language and hand gestures. Later the same day Mr Elliott was informed by Mr Baldwin that he would be stood down on full pay pending an investigation into the incident. This was confirmed in writing. The stand down letter foreshadowed an investigation meeting and included an invitation for Mr Elliott to bring a support person with him to that meeting. 19
[26] An investigation meeting was held on 24 August 2018 and was attended by Mr Lynn, Mr Baldwin, Mr Elliott and Mr Elliott’s union representative. At the meeting Mr Elliott was invited to respond to the allegation that, in the presence of passengers including school children, he had made an obscene gesture at a member of the public driving another vehicle and directed two profanities at the other driver. It was also put to Mr Elliott that he had braked inappropriately hard at traffic lights placing the safety of passengers at risk. 20
[27] Mr Elliott claimed the incident was prompted by a motorist making an obscene hand gesture at him, whilst Mr Elliott was endeavouring to change lanes. Mr Elliott conceded that he retaliated with an obscene hand gesture and called the other driver an obscene name. Mr Elliott explained that the incident occurred in the context that he had been off on sick leave the week before the incident and had been prescribed tablets to take if he experienced stomach pain. He told the investigators that at the time the incident occurred that he was experiencing stomach pain but had forgotten to bring his tablets with him and this impacted on his mood causing him to behave unreasonably. Transdev say that despite stating that he was sorry the incident occurred Mr Elliott did not accept that the incident amounted to road rage or that it constituted serious misconduct. 21
[28] At the same meeting Mr Lynn raised with Mr Elliott prior work performance issues including 22:
a. The written final warning issued on 10 April 2018 in relation to the vehicle collision.
b. The 7 May 2018 Incident.
[29] On 27 August 2018 Mr Elliott was issued with a show cause letter informing him that Transdev were of the view that his conduct constituted a breach of the Transdev Code of Conduct Policy and that his explanation was not acceptable (Show Cause Letter). In the Show Cause Letter Transdev warned Mr Elliott that in light of his previous written warning for unsatisfactory performance Transdev were considering terminating his employment. The letter invited Mr Elliott to show cause why his employment should not be terminated as follows: 23
“Transdev will arrange to meet with you to discuss this matter further, at time suitable to all relevant parties, 24 to 48 hours from the date of this letter. At this meeting (the Show Cause meeting) you will be provided an opportunity to respond to your ongoing unsatisfactory performance as a Bus Operator with Transdev and we encourage you to provide any, and all further relevant information that Transdev should take into account before making a final decision regarding your employment.”
[30] The Show Cause Letter also invited Mr Elliott to bring a support person with him to the show cause meeting. 24
[31] On 29 August 2018 the show cause meeting was held (Show Cause Meeting). Mr Elliott was accompanied to this meeting by his union representative. At this meeting Transdev also raised with Mr Elliott two other work performance issues – the 7 May 2018 Incident and the 20 May 2018 Incident. 25
[32] At the meeting Mr Elliott provided a written response to the Show Cause Letter. In his response, he informed Transdev that he had been caring for his wife who suffered a serious accident in 2015 and who had received a cancer diagnosis in 2017. He explained that his income funded her care. He also informed Transdev that he had been diagnosed with prostate cancer and that his initial chemotherapy treatment in 2016 was unsuccessful. He said that since March 2018 he has undergone 8 cycles of chemotherapy and that his cancer is now under control. He says that notwithstanding he didn’t reveal these matters to Transdev at the time, these events were the reason for his lack of attention resulting in the collision in April 2018. 26
[33] In his response Mr Elliott also explained that the latest incident occurred two days after he returned to work from a week of sick leave in which he was hospitalised for stomach cramps. He insisted that he was fit for work but explained that he had been prescribed medication for his stomach cramps and had forgotten to bring it with him. According to Mr Elliott his stomach discomfort caused him to respond inappropriately towards the other driver. He conceded that in retrospect he should have taken sick leave. He told Transdev that he was committed moving forward to taking time off when necessary and that he was willing to do whatever was necessary to keep his job at Transdev. 27
[34] Mr Lynn adjourned the meeting to consider Mr Elliott’s response. Given the number of work performance matters raised with Mr Elliott in the preceding few years, notwithstanding the response provided by Mr Elliott, Mr Lynn formed the view that Mr Elliott was unwilling or unable to improve his work performance or even demonstrate a genuine desire to do so. Mr Lynn considered that the risk to passengers and the broader community posed by Mr Elliott was too great for Mr Elliott to continue in employment with Transdev. Notwithstanding that Mr Lynn formed the view that Mr Elliott’s conduct constituted serious misconduct warranting summary dismissal, taking into account Mr Elliott’s length of service, Mr Lynn decided to dismiss Mr Elliott with notice. 28
[35] Mr Elliott was informed that he was dismissed effective immediately but that he would be paid five weeks’ salary in lieu of notice. His dismissal was subsequently confirmed in writing. 29
According to the Letter of Termination Mr Elliott was dismissed because of:
a. his use of inappropriate hand gestures and obscene language in the road rage incident;
b. the 7 May 2018 Incident;
c. the 21 May 2018 Incident; and
d. the Written Warning Incident
in circumstances in which he was on a Final Written Warning following a road collision. This warning also references a number of prior incidents.
[36] Mr Elliott submits that he was unfairly dismissed and seeks an Order that he be reinstated with orders for back pay and continuity of service. 30
Protection from Unfair Dismissal
[37] An Order for reinstatement or compensation may only be issued if Mr Elliott was protected from unfair dismissal at the time of the dismissal.
[38] Section 382 sets out the circumstances that must exist for Mr Elliott to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[39] There is no dispute, and I am satisfied, Mr Elliott has completed the minimum employment period, and is covered by Transdev WA Pty Ltd Metropolitian Bus Drivers Enterprise Agreement 2016. 31 Consequently, I am satisfied Mr Elliott was protected from unfair dismissal.
Was Elliott’s dismissal unfair?
[40] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:
“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.”
[41] It is not contested, and I am satisfied, that Mr Elliott was dismissed for the purposes of section 385(a) of the FW Act. 32 I am also satisfied that the Small Business Fair Dismissal Code, which applies to employers of fewer than 15 employees, does not apply to Mr Elliott’s dismissal.33 There is no assertion that Mr Elliott’s dismissal involved redundancy.34
[42] I am also satisfied that the Application was made within the 21 day period required by subsection 394(2) of the FW Act. 35
Was Elliott’s dismissal harsh, unjust or unreasonable?
[43] Having been satisfied of each of subsections 385(a), (c) and (d) of the FW Act, it is necessary to determine whether Mr Elliott’s dismissal was harsh, unjust or unreasonable. The criteria to be taken into account when assessing whether a dismissal was harsh, unjust or unreasonable are set out at section 387 of the FW Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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 Commission considers relevant.”
[44] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[45] To determine whether Mr Elliott’s dismissal was, in the circumstances, harsh, unjust or unreasonable, it is necessary to consider the criteria set out in section 387 of the FW Act.
[46] The Applicant submits the dismissal was harsh, unjust or unreasonable because:
a. Mr Elliott’s use of profane language and gestures was not sufficiently serious to warrant his dismissal;
b. Mr Elliott was denied procedural fairness in the course of the investigation; and
c. of Mr Elliott’s personal circumstances.
[47] The Respondent submits the dismissal was not harsh, unjust or unreasonable because:
a. Mr Elliott was on a final written warning at the time of his dismissal.
b. He had received further counselling after the written warning was issued.
c. He admitted making a vulgar hand gesture and directing profanities at a member of the public.
d. He was afforded procedural fairness in the course of the investigatory and disciplinary process.
Did Transdev have a valid reason for dismissing Elliott? (s.387(a))
[48] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal. A valid reason is one which is ‘sound, defensible and well-founded’ 36 and not ‘capricious, fanciful, spiteful or prejudiced.’37 The reason or reasons relied upon by an employer as a valid reason for dismissal need not be the ones given to the employee at the time of the dismissal.38 The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.39
[49] Mr Mullally submitted that there was no valid reason for Mr Elliott’s dismissal because when his conduct when considered in the context of the broader community and the industrial landscape, Mr Elliott’s behaviour was not sufficiently serious to justify his dismissal. The only authority which Mr Mullally points in support of his submissions is the decision of the Full Bench in Illawarra Coal v Gosek[2018] FWCFB 1829.
[50] While the Full Bench ultimately found that Mr Gosek’s dismissal was harsh in his particular circumstances it is relevant to note that the Full Bench found that the ‘one off’ use of profanities outside of working hours by Mr Gosek (who had a 12 years unblemished work record) constituted a valid reason for his dismissal.
[51] In Mr Elliott’s case the conduct occurred at work, was directed at a member of the public and was part of a pattern of conduct which had attracted numerous customer complaints, verbal and written counselling and warnings including a final written warning.
[52] Transdev submit that Mr Elliott’s dismissal was for sound, well founded and defensible reasons.
[53] Mr Elliott is engaged in a customer facing role. His conduct needs to assessed in the context of the environment in which he works and the impact of his conduct on the business by whom he is engaged. Mr Elliott is charged with driving members of the public including young children and other members of the public for who the use of profanities is highly inappropriate and/or offensive. Transdev is subject to contractual obligations in relation to customer satisfaction. Those factors make the use of profanities by Mr Elliott more significant.
[54] Although of itself it may well have been a valid reason for his dismissal, Mr Elliott was not dismissed solely for the incident of road rage. As outlined in the Show Cause Letter and the Termination Letter the decision to dismiss Mr Elliott was made in the context of a history of other conduct on the part of Mr Elliott which Transdev say fell below the standard to be expected of an experienced driver.
[55] Mr Baldwin and Mr Lynn conceded under cross examination that of the two May 2018 incidents referred to in the Letter of Termination one was relatively minor and one of more moderate severity and of themselves didn’t attract disciplinary processes. They also expressed the view that the road rage incident alone might not have warranted Mr Elliott’s dismissal. 40
[56] Mr Mullally submits that the April 2018 incident in which Mr Elliott drove through a red light causing a collision had been resolved by the issue of the written warning and the completion by Mr Elliott of the driver retraining. He says that it can not therefore be relied upon by Transdev to justify Mr Elliott’s subsequent dismissal if the subsequent events in May 2018 and August 2018 in which Mr Elliott was involved were of themselves not sufficient to justify his dismissal.
[57] Firstly, it is the evidence of Mr Baldwin that rather than satisfying Transdev that Mr Elliott was unlikely to engage in more unsatisfactory conduct the driver retraining led Transdev to have further doubts about Mr Elliott’s suitability for his role when he indicated to the instructor that he was unaware how the collision occurred or who was at fault. 41
[58] It is counterintuitive to suggest that the issuing of a final written warning means that a disciplinary matter is thereby resolved and an employer cannot give consideration to the conduct the trigger for the warning when assessing the seriousness of subsequent misconduct.
[59] The Final Written Warning expressly warned Mr Elliott that further incidents may result in the termination of his employment. It is also important to note that the Final Written Warning was issued in the context of four earlier incidents in addition to the collision which triggered the warning.
[60] Mr Elliott’s pattern of unsatisfactory conduct has persisted over several years despite efforts by Transdev to provide training and guidance to Mr Elliott to ensure that he was aware of the expected standards of conduct.
[61] Transdev quite reasonably took the view that in light of the repeated customer complaints and the issue of multiple warnings to Mr Elliott including a final written warning, that Mr Elliott was either unwilling or unable to modify his conduct. Given the pattern of conduct and the potential impact of this conduct on the reputation of Transdev and the potential contractual consequence for the business given the PTA’s focus on customer satisfaction I am satisfied that there was a valid reason for Mr Elliott’s dismissal.
Was Elliott notified of the reason for his dismissal? (s.387(b))
[62] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,42 in explicit terms,43 and in plain and clear terms.44 In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151, a Full Bench of the Australian Industrial Relations Commission, dealing with a similar provision of the Workplace Relations Act 1996 (Cth), stated that:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[63] The proposed reasons for Mr Elliott’s dismissal were set out in the Show Cause letter and discussed with Mr Elliott at the Show Cause Meeting. The Show Cause Letter refers to the August road rage incident and the Final Written Warning. The Final Written Warning which was attached to the Show Cause Letter references four earlier incidents. The 7 May 2018 and 21 May 2018 incidents were raised with Mr Elliott at the Show Cause Meeting. 45
[64] Despite Mr Mullally’s submissions to the contrary it is clear from the Show Cause Letter that Transdev proposed to take into account the Final Written Warning when they met with Mr Elliott at the Show Cause Meeting. The fact that Mr Elliott chose not to address the Final Written Warning in his written response to the Show Cause Letter is a matter of choice for Mr Elliott, not evidence that he was not on notice that the Final Written Warning would be taken into account in determining the appropriate disciplinary consequences for the road rage incident.
[65] I find that Mr Elliott was notified of the reason for the dismissal.
Was Elliott provided with an opportunity to respond to the reasons for his dismissal? (s.387(c))
[66] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the employee. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 46
[67] Mr Elliott agrees that he was invited to two meetings with his employer at which he was invited to respond to the reasons for his proposed dismissal. He also concedes that he provided a written response to the allegations of misconduct. 47 However Mr Mullally submits that Mr Elliott was not on notice that the Final Written Warning would be taken into account in determining the appropriate disciplinary consequences for the road rage incident and therefore did not have an opportunity to respond to this.
[68] Despite Mr Mullally’s submissions to the contrary it is clear from the Show Cause Letter and in fact from the Final Written Warning that Transdev would take into account the Final Written Warning when they met with Mr Elliott at the Show Cause Meeting. The fact that Mr Elliott chose not to address the Final Written Warning in his written response to the Show Cause Letter is a matter of choice for Mr Elliott not evidence that he was not on notice that the Final Written Warning would be taken into account in determining the appropriate disciplinary consequences for the road rage incident.
[69] I find that Mr Elliott was given an opportunity to respond to the reasons for his dismissal.
Was Elliott unreasonably refused a support person? (s.387(d))
[70] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. There is however, no positive obligation on an employer to offer an employee the opportunity to have a support person.48
[71] Mr Elliott concedes that he had a support person with him during discussions relating to his dismissal. 49
[72] I find Transdev did not unreasonably refuse to allow Mr Elliott to have a support person present at discussions relating to his dismissal.
Was Elliott given warnings regarding his unsatisfactory performance? (s.387(e))
[73] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.50
[74] Mr Elliott submits that the prior written warnings relate to matters of a different nature and therefore while “relevant don’t go to the heart of the conduct which resulted” in his dismissal. 51
[75] I am satisfied that the Final Written Warning, particularly as it made reference to a varied range of prior performance issues, was sufficiently broadly expressed to put Mr Elliott on notice that his performance required improvement across the board.
[76] It is not necessary for warnings to proscriptively describe each and every possible aberration in performance to place an employee on notice that the general standard of their performance is inadequate.
[77] In any event to the extent that the road rage incident might be said to differ from other incidents in relation to which Mr Elliott was formally or informally warned I am of the view that the road rage incident is more appropriately characterised as a misconduct rather than a performance issue.
[78] To the extent that Mr Elliott was dismissed for reasons related to his performance I find that Transdev warned Mr Elliott about his unsatisfactory performance before the dismissal.
What is the impact of the size of Transdev and the presence or absence of dedicated human resources management specialist/expertise on the procedures followed? (s.387(f) and s.387(g))?
[79] Transdev has a dedicated human resource department. 52 This is reflected in the procedure adopted by Transdev to endeavour to alert Mr Elliott to its concerns about his performance and conduct and to provide training to address any deficiencies. It is also reflected in the procedure adopted to investigate the allegations made about him.
Are there any other relevant matters? (s.387(h))?
[80] Section 387(h) provides the FWC with a broad scope to consider any other matters it considers relevant to the determination of whether the dismissal of an employee was harsh, unjust or unreasonable.
[81] Mr Mullally submits that:
a. Mr Elliott had no prior record of inappropriate interactions with the general public.
b. Acted out of character because he did not have his medication with him.
c. Mr Elliott’s age makes re-employment difficult.
d. Mr Elliott and his spouse are both fighting cancer.
e. Mr Elliott is unable to find alternative employment.
and that these are matters which are relevant to the determination of whether Mr Elliott’s dismissal was harsh, unjust or unreasonable. 53
[82] Transdev submit that Mr Elliott has a lengthy disciplinary history in relation to which he has received clarification and training from Transdev with respect to its expectations of his behaviour. Transdev say that his involvement in the road rage incident must be considered in this context. Transdev also point out that Mr Elliott has a positive obligation to ensure that he is fit for work.
[83] Without doubt Mr Elliott is facing significant health and emotional challenges. Dismissal and unemployment are likely to make these challenges more difficult to bear.
[84] Mr Elliott’s circumstances sad as they are differ significantly from those of Mr Gosek in Illawarra Coal v Gosek[2018] FWCFB 1829 where the Full Bench found that notwithstanding his one of use of profanities Mr Gosek’s dismissal was harsh.
[85] Mr Gosek had an unblemished record of 12 years’ service, was suffering depression, having difficulty adjusting to his medication, was intoxicated and apologised at the first opportunity.
[86] Mr Elliott’s conduct occurred at work and had potentially significant commercial implications for his employer. Mr Elliott had been engaged for barely half the amount of time as Mr Gosek and during this period had been the subject of multiple verbal and written counselling and warnings including a final written warning.
[87] It is clear from the evidence of Mr Baldwin and Mr Lynn, that it is not the case that Mr Elliott was dismissed because of a one off incident which would be unlikely to be repeated. Mr Elliott’s evidence is that he has been suffering from cancer since 2016. His Doctor’s evidence is that nausea and vomiting are potential side effects of his treatment. Mr Elliott chose not to disclose to Transdev his medical challenges. However he now says that this is the cause of the performance and conduct deficiencies raised with him over the last few years. His decision not to inform Transdev of his medical challenges prevented Transdev making appropriate adjustments to ensure the health and safety of Mr Elliott, his passengers and other road users. Given Mr Elliott’s past incapacity to self-assess his fitness for work there is a danger that Mr Elliott may pose a risk to the health and safety of himself and/or others. 54
[88] Notwithstanding Mr Elliott’s assertion that he has no prior record of negative interactions with the public the number of complaints made by the public about him suggest otherwise. These complaints include that he spoke rudely to a passenger and that he was braking and accelerating without regard to passenger comfort or safety.
[89] Mr Elliott says that harshness arises from his dismissal because given his age he is unable to find alternative employment. He tendered no evidence that he has applied for other positions and under cross examination was unable to specify the number of applications he has made. He conceded that he hasn’t applied for work with Path Transit one of the two other major employers of bus operators in the Perth metro region. He also conceded that he was invited to complete an application with Swan but he hadn’t done so because he took the view that their depot was too far from his home. 55
[90] While I have the deepest sympathy for Mr Elliott’s personal circumstances, in all the circumstances I am not satisfied that they make his dismissal harsh, unjust or unreasonable.
Conclusion
[91] Having considered each of the matters specified in s.387, I am not satisfied that the dismissal of Mr Elliott was harsh, unjust or unreasonable. Accordingly, I find that Mr Elliott’s dismissal was not unfair.
[92] An order to this effect [PR704748] will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Patrick Mullally for the Applicant.
Ms Ben Smith for the Respondent.
Hearing details:
2018.
Perth.
3 December.
Final written submissions:
Applicant, 12 December 2018.
Respondent, 21 December 2018.
Printed by authority of the Commonwealth Government Printer
<PR704747>
1 Exhibit A4 at Attachment A.
2 Exhibit A3 at [23] and Exhibit R3 at Attachment L.
3 Exhibit A4 at Attachment B and Exhibit R2 at [10]-[11], Exhibit R4at [20].
4 Exhibit R3 at Attachment O.
5 Exhibit R3 at Attachment N.
6 Exhibit R3 at Attachment M.
7 Exhibit R3 at Attachment P.
8 Exhibit A4 at Attachment B.
9 Exhibit A4 at Attachment B.
10 Exhibit A3 at [21] and R4 at [22].
11 Exhibit R3 at Attachment K.
12 Exhibit A4 at Attachment C and Exhibit R2 at [9].
13 Exhibit R3 at Attachment C.
14 Exhibit R2 at [8].
15 Exhibit R4 at [19].
16 Exhibit A3 at [19] and Exhibit R3 at Attachment D.
17 Exhibit R4 at [5] and Exhibit R3 at Attachment A.
18 Exhibit R3 at Attachment A.
19 Exhibit A3 at [12] –[13], Exhibit R2 at [4]-[6], Exhibit R4 at [7]-[11] and Exhibit R3 at Attachment E.
20 Ibid.
21 Ibid.
22 Ibid.
23 Exhibit A4 at Attachment E and Exhibit R3 at Attachment E
24 Ibid.
25 Exhibit A4 at Attachment G
26 Exhibit A4 at Attachment F and Exhibit R3 at Attachment F
27 Ibid.
28 Exhibit A4 at Attachment G and Exhibit R4 at [15]-[17].
29 Exhibit R4 at [18].
30 Exhibit A2 at [18].
31 Exhibit A1 at [6] and [10].
32 Exhibit A1 at [8].
33 Exhibit A1 at [9].
34 Exhibit A1 at [12].
35 Exhibit A1 at [13].
36 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
37 Ibid.
38 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373 and 377-378.
39 Ibid.
40 Transcript at PN270-PN277, PN178-185, PN203.
41 Transcript at PN221-PN225.
42 Chubb Security Australia Pty Ltd v Thomas (Print S2679) at [41].
43 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [151].
44 Previsic v Australian Quarantine Inspection Services (Print Q3730).
45 Exhibit A2 at [11] and Exhibit A4 at Attachment G.
46 RMIT v Asher (2010) 194 IR 1, 14–15.
47 Exhibit A2 at [12].
48 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
49 Exhibit A2 at [13].
50 Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 237.
51 Exhibit A2 at [14].
52 Exhibit A1 at [11].
53 Exhibit A2 at [17].
54 Exhibit A4 at Attachment F.
55 Transcript at PN78-79.
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