Scott Mitchell v City Sightseeing Pty Ltd - [2025] FWC 1339

[2025] FWC 1339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Scott Mitchell
v

City Sightseeing Pty Ltd

(U2024/14284)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 13 MAY 2025

Application for an unfair dismissal remedy

Introduction and outcome

On 27 November 2024, Mr Scott Mitchell lodged an application with the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with City Sightseeing Pty Ltd, trading as Big Bus Tours (Big Bus Tours).

Big Bus Tours operates a tourist sightseeing bus service in Sydney, New South Wales, providing open-top, double-deck bus tours. The business employs approximately 34 staff members and is based at Banksmeadow. Ms Pamela Staines is the General Manager.

Mr Mitchell was employed by Big Bus Tours as a bus driver. Mr Mitchell was dismissed following a motor vehicle accident on 6 November 2024, which damaged a company bus.

I have found that there was a valid reason for the dismissal based upon Mr Mitchell’s conduct in operating the bus unsafely and his recent driving record. Although I have found that there were aspects of the termination that were procedurally unfair, I believe that these matters would not have affected the outcome. I have concluded that Mr Mitchell was not unfairly dismissed, and I have dismissed the application.

The conference

As there are contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. After taking into account the views of Mr Mitchell and Big Bus Tours, I considered it appropriate to hold a conference pursuant to s.398 of the FW Act.

At the conference, Mr Mitchell represented himself. Big Bus Tours was represented by Mr Andrew O’Brien, Lawyer, who I granted permission to appear pursuant to s.596(2) of the FW Act, as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter and because Big Bus Tours was unable to represent itself effectively as it does not employ human resources or legal personnel.

Mr Mitchell filed submissions in the Commission on 18 January 2025 and submissions in reply on 30 January 2025. Big Bus Tours filed submissions in the Commission on 28 January 2025. Mr Mitchell gave evidence on his own behalf and Ms Staines gave evidence on behalf of Big Bus Tours.

I have considered the submissions made by the parties and all of the evidence before me in my determination of this matter and the conclusions I have reached.

Background facts

The accident on 6 November 2024

Mr Mitchell was employed by Big Bus Tours from 24 November 2003 to 7 November 2024. He was usually rostered from Monday to Friday for 38 hours per week.

Mr Mitchell was initially employed to clean buses and assist the controller. Since then, he has held numerous positions including ticket seller, controller,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scott Mitchell v City Sightseeing Pty Ltd

Details

AGLC: Scott Mitchell v City Sightseeing Pty Ltd [2025] FWC 1339
Case: [2025] FWC 1339
Decision Date: 13 MAY 2025

CaseChat Overview and Summary

Scott Mitchell applied to the Fair Work Commission for a remedy under section 394 of the Fair Work Act 2009, alleging that he was unfairly dismissed from his position as a bus driver with City Sightseeing Pty Ltd, trading as Big Bus Tours. Mr Mitchell's dismissal followed a motor vehicle accident on 6 November 2024, which resulted in damage to a company bus. The Fair Work Commission found that there was a valid reason for the dismissal related to Mr Mitchell's conduct in operating the bus unsafely and his recent driving record. The Commission also found that while aspects of the termination were procedurally unfair, these would not have affected the outcome. The Commission concluded that Mr Mitchell was not unfairly dismissed and dismissed the application.

The legal issues before the Commission were whether Mr Mitchell was protected from unfair dismissal at the time of being dismissed, whether the dismissal was consistent with the Small Business Fair Dismissal Code, whether the dismissal was a case of genuine redundancy, and whether the dismissal was harsh, unjust or unreasonable. The Commission found that Mr Mitchell was protected from unfair dismissal at the time of being dismissed, that the dismissal was not consistent with the Small Business Fair Dismissal Code, and that the dismissal was not a case of genuine redundancy. The Commission also found that the dismissal was not harsh, unjust or unreasonable because there was a valid reason for the dismissal related to Mr Mitchell's conduct, Mr Mitchell was notified of the reason for dismissal, and Mr Mitchell's conduct was serious in that it caused financial loss, inconvenience, a risk to health and safety, and potential reputational damage for Big Bus Tours. The Commission found that these matters outweighed the lack of procedural fairness afforded to Mr Mitchell by Big Bus Tours and Mr Mitchell's lengthy period of service.

The final orders of the Fair Work Commission were that the application be dismissed and that each party bear their own costs of the application.

Orders