Shyamkumar Panchal v Torrens Transit Services Pty Ltd

[2014] FWC 7848

[2014] FWC 7848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shyamkumar Panchal
v
Torrens Transit Services Pty Ltd
(U2014/7165)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 14 NOVEMBER 2014

Application for unfair dismissal remedy - valid reason - wilful misconduct - application dismissed.

[1] On 12 May 2014 Mr Panchal lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Torrens Transit Services Pty Ltd (Torrens).

[2] The arbitration of the application was deferred as a result of health issues affecting key witnesses but the application was ultimately the subject of a hearing on 13 and 14 October 2014. Mr Panchal was represented by Mr Clarke, as agent and Torrens by Mr Dowd, of counsel through grants of permission made under s.596(2)(a). Over the three weeks following this hearing the parties provided written closing statements which I have taken into account.

[3] The parties agreed that none of the initial or jurisdictional matters referenced in s.396 were relevant to this application.

[4] Mr Panchal was employed by Torrens as a bus driver from July 2007. His employment was terminated on 22 April 2014 following investigations into an accident on 16 April 2014. That accident resulted in a pedestrian being hit by a bus driven by Mr Panchal. Whilst the nature of the pedestrian’s injuries are not entirely clear, there is no suggestion that these injuries were substantial. While the termination of Mr Panchal’s employment took effect on 22 April 2014, Mr Panchal was paid three weeks pay on that termination. Mr Panchal lodged an internal appeal into that dismissal. That appeal was considered on 12 May 2014 but confirmed the employment termination decision. Mr Panchal asserts that this employment termination was unfair in that the accident was minor and was not his fault. Further, that Torrens should have adopted other approaches to address the matter, such as a further warning or retraining in light of his employment history. Mr Panchal asserts that Torrens did not give sufficient weight to the evidence of the witnesses he provided to the investigation and that the termination of employment conclusion adopted by Torrens was inconsistent to the approach which it applied to other employees in similar circumstances. Mr Panchal sought reinstatement.

[5] The Torrens’ position is that Mr Panchal failed to take due care when he moved his bus forward into a pedestrian and that this represented serious misconduct. Torrens assert that because of the positioning of Mr Panchal's bus over a pedestrian crossing, pedestrians were forced to cross either behind or in front of the bus and that pedestrians were still crossing directly in front of the bus when Mr Panchal moved it forward. Torrens asserts that its investigation into the incident was fair and thorough and that accordingly, the termination decision was not unfair. Torrens asserts that the termination of employment decision was appropriate, given disciplinary actions taken with respect to other employees.

The Evidence

[6] Mr Panchal's evidence went to his employment history and to the circumstances of the accident on 16 April 2014. He particularly addressed his reasons for moving the bus forward in that he thought that it was safe to do so. He also gave evidence about his understanding of the investigation process and his subsequent internal appeal of that termination decision. His evidence went to his assessment that he could satisfactorily return to Torrens to work. Mr Panchal also confirmed that he had subsequently been charged with driving without due care with respect to this incident and that this charge was before the Court later in October 2014.

[7] Mr Singh witnessed the accident on 16 April from the intersection. His evidence was that he saw a pedestrian walk quickly in front of the bus as it, and other vehicles, were moving forward. After the pedestrian was hit by the bus, he crossed the road and assisted the pedestrian to a nearby seat. The pedestrian advised him that she accepted that the incident was her fault. Mr Singh provided Mr Panchal with his contact details and, in the course of the initial investigation undertaken by Torrens, provided telephone advice to Mr Panchal about his recollections of the matter. His evidence was that he later made a statement about the matter to Mr Panchal in his primary language and Mr Panchal later provided this to him in English. He then signed this and gave it to Mr Panchal for the internal appeal. He confirmed his assessment that the accident occurred because the pedestrian ran in front of the bus. I note that Mr Singh was with his cousin at the time of the accident. Both he and his cousin provided statements to Torrens. Mr Singh’s cousin did not give evidence at the hearing. Given the similarity of the advice Mr Singh and his cousin provided to Torrens and the time which has elapsed since the accident, I have not drawn any adverse inference as a consequence of Mr Singh’s cousin not giving evidence.

[8] Ms Yeend was a passenger on Mr Panchal's bus. Her evidence went to her provision, to Mr Panchal after the accident, of her contact details and a statement about the accident. When telephoned by Torrens as part of the initial investigation process she recounted the incident. Her evidence was that the pedestrian ran across the road in front of the bus and then changed direction so as run towards the front left corner of the bus.

[9] Mr Gonsalves is a TWU Union Organiser. His evidence went to his representation of Mr Panchal at the disciplinary review meeting convened by Mr Lamont on 12 May 2014.

[10] Mr Cooper was a pedestrian in front of the pedestrian who was hit by the bus. His evidence was that he was aware of the lady behind him, that he was walking rather than running but became aware of the bus moving at him. When he became aware that the bus had knocked the lady behind him over he entered the bus which had then stopped and had a sharp exchange with Mr Panchal before waiting with the injured pedestrian for police and ambulance attendance.

[11] Ms Brown is an Area Manager with Torrens. Her evidence went to her conduct of the initial investigation into the matter on 22 April 2014. She viewed the CCTV film taken by the on board camera. She advised that, having heard Mr Panchal's description of the matter, she then adjourned the meeting and arranged for another Torrens manager, Mr Holtham to telephone the witnesses to the accident who were identified by Mr Panchal. She reviewed Mr Panchal's personnel file, and noted the incidents in which he had been involved and the warnings in it. Ms Brown then considered the information available from the witnesses before advising Mr Panchal that she had concluded that his actions were negligent and that she had decided that he should be dismissed with three week’s wages.

[12] Mr Holtham was, at the time of the termination of Mr Panchal's employment, the Torrens Mile End Depot Operations Manager. Mr Panchal reported to Mr Holtham. Mr Holtham's evidence went to how he became aware of the incident and the arrangements he made to obtain an incident report from Mr Panchal. Mr Holtham's evidence went to his consideration of that report and the CCTV images such that he concluded that the incident required further investigation. He consequently stood Mr Panchal down pending that investigation. Mr Holtham's evidence went to his role and participation in the initial investigation undertaken by Ms Brown including his contact with certain of the witnesses identified by Mr Panchal. Mr Holtham's evidence went to his participation as a note-taker in the subsequent internal appeal investigation undertaken by Mr Lamont.

[13] Mr Balacco is the Torrens Camden Park Operations Manager. His evidence went to his attendance at the accident scene. He also gave evidence about another accident which occurred on the same day.

[14] Mr Hobson-Campbell is a Torrens bus driver. His evidence went to his role as a support person for Mr Panchal and to information which Mr Panchal provided to him before the interview with Ms Brown.

[15] Mr Lamont is the Torrens General Manager. His evidence went to Torrens' driver training and instruction processes and his involvement in the investigation of the incident. Mr Lamont recounted his review of the investigation undertaken by Ms Brown which led him to confirm the termination of Mr Panchal's employment. Mr Lamont’s evidence also went to the Torrens disciplinary investigation process generally.

[16] In addition to the witness evidence I have taken into account all of the material provided to me, including the CCTV film of the incident and CCTV film of other incidents involving other Torrens personnel.

Findings

[17] Section 387 sets out the factors which must be considered to determine if the termination of Mr Panchal's employment was unfair. Before considering these factors, I have set out my conclusions about the relevant factual situation. Whilst the incident which led to the termination of Mr Panchal's employment will be considered in the context of the driving without due care charge, I have not taken that charge into account in deciding whether there was a valid reason for the termination of Mr Panchal's employment. The standard of proof differs as do the factors the FW Act requires me to take into account.

[18] I have concluded that Mr Panchal's personnel record covers the duration of his employment. It shows a number of counsellings, two verbal warnings and three written warnings over the three years before the termination of his employment. I have also noted that Mr Panchal provided training assistance to other drivers at various times and had undertaken work in Sydney at the request of Torrens. Mr Panchal performed well in the Torrens’ performance appraisal process. 1 In terms of Mr Panchal's disciplinary record, I have accepted the evidence of Ms Brown and Mr Lamont, and have concluded that Mr Panchal’s employment history was not particularly poor, but at the same time not outstandingly good. I have concluded that Ms Brown’s termination of employment decision took into account Mr Panchal’s employment history but that in the appeal process, Mr Lamont did not uphold the termination decision on the basis of that history.2

[19] In terms of the incident on 16 April 2014, I am satisfied that the evidence establishes that Mr Panchal stopped his bus with the rear of that bus across the pedestrian crossing, so that pedestrians crossing in accordance with the traffic lights had to cross behind or in front of the bus. The incident happened at peak hour with numerous pedestrians crossing the road. If they crossed in front of the bus they were outside of the designated pedestrian crossing area. Mr Panchal stopped the bus in that position because a car in front of him had stopped and remained stopped for no obvious reason. Whilst Mr Panchal should not have entered the intersection in those circumstances, I do not consider that this was a basis for the decision to terminate his employment or that it is relevant to that decision.

[20] Mr Panchal sounded his horn to prompt the car to move forward and when that car moved on Mr Panchal progressively moved his bus forward. He started moving forward on a number of occasions. At this time, pedestrians were walking in front of the bus. I have accepted the evidence of Mr Hobson-Campbell, who was Mr Panchal's support person at the first disciplinary interview, that:

“Prior to the meeting I asked Panchal what had happened. Panchal said to me “People started jaywalking, when a few walked past I moved forward, because you know what it is like, if you don’t do that they just keep coming” or words to that effect.

During the disciplinary interview I saw the CCTV footage of the incident and it was clear to me that the people weren’t “jaywalking” as Panchal has described. The people were walking around because the bus was blocking the pedestrian crossing.” 3

[21] That evidence is consistent with that of Mr Lamont who said that during the internal appeal meeting:

“To the best of my memory, Mr Panchal said that if he did not move forward, he would not get the pedestrians to stop walking in front of his bus. Mr Hotham’s notes say “If stopped, do you think that people would stop?” and that is consistent with what I remember Mr Panchal saying. ....” 4

[22] I have noted that Mr Gonsalves, Mr Panchal’s union representative at the appeal meeting, did not recall Mr Panchal saying this. Nevertheless, I have preferred the positive evidence of Mr Lamont and the contemporaneous notes taken by Mr Holtham. 5

[23] I also accept the evidence of Mr Lamont to the effect that:

“At this point, I asked if Mr Panchal thought he was wrong in moving in to the intersection before he could see that he could clear the intersection completely. He indicated that he had not done anything wrong and had beeped his horn in an attempt to clear his pathway once he knew he would not make it all the way across the intersection.

Mr Panchal went on to explain that he observed a number of pedestrians starting to cross in front of him. When I asked whether he had actually seen the people crossing in front, he said yes.” 6

[24] Mr Panchal's evidence was to the effect that he estimated that he had sufficient space to move forward and hence did so. Mr Panchal admitted that he saw the pedestrians. 7 I am unable to reconcile Mr Panchal’s evidence with the information he provided to Mr Hobson-Campbell. I do not accept Mr Panchal’s denial that he told Mr Hobson-Campbell that if he hadn’t moved forward to stop the jaywalking pedestrians they would just keep coming. Further, I do not accept Mr Panchal’s denial that he said, in the course of the internal appeal meeting on 12 May 2014, words to the effect that if he had remained stopped the pedestrians would not stop walking. In this respect Mr Panchal’s evidence is inconsistent with that of Mr Lamont8 and Mr Holtham.9

[25] I have had regard to the evidence of Ms Yeend and Mr Singh. I am not satisfied that evidence undermines the advice that Mr Panchal gave to Mr Hobson-Campbell. Simply put, at the time the bus hit the pedestrian, the bus was moving. The CCTV demonstrates that the pedestrian was walking briskly and turning in toward the corner of the bus. She needed to do that as there was a parked car on the road side and the bus was then moving toward her.

[26] Mr Cooper was the pedestrian who crossed in front of the bus shortly before it hit the lady following him. I have concluded that there must be considerable doubt about aspects of his evidence, such as how close behind him the pedestrian actually was, but have accepted his evidence that the bus went close to him.

[27] I have taken into account the advice that the pedestrian who was hit by the bus commented shortly after the accident to the effect that she was at fault. I have also noted that the information available to Torrens is that this pedestrian suffered some ongoing injury as a result of the accident but has not responded to Torrens’ attempts to contact her.

[28] There is a significant difference between deliberately commencing to move the bus towards pedestrians to stop them crossing in front of the bus, and a circumstance where one or more pedestrians walk or run across the road in front of a moving bus. Given that the rear of the bus was blocking part of the pedestrian walkway, I have concluded that pedestrians might logically have sought to cross the road in front of the bus. I have decided that Mr Panchal chose to move the bus forward to stop pedestrians crossing in front of him so that he could continue his journey. I have concluded that, the bus moved forward in a number of movements. The CCTV indicates that the pedestrian who was hit by the bus must have been almost directly in front of Mr Panchal when he initiated the last forward bus move. I am not satisfied that this was a situation where a pedestrian simply ran across in front of the bus. Mr Panchal deliberately moved the bus toward the pedestrians. In this respect Mr Panchal’s actions were a form of intimidation of the pedestrians. The evidence of Mr Cooper confirmed that the bus went close to him and it obviously hit the female pedestrian following him. I do not think that Mr Panchal set out to hit the pedestrians but this was a direct consequence of his deliberate move of the bus and his inattention or misjudgement relative to that action.

[29] I have concluded that Mr Panchal's actions are properly characterised as negligent and are inconsistent with the expectations of him as a bus driver. They are contrary to the conduct which he confirmed was detailed in the bus drivers’ manual.

[30] I have concluded that the incident which resulted in the termination of Mr Panchal's employment was of a quite different nature to the two other instances which Mr Panchal has referred me to. The Light Square accident did not involve a deliberate act on the part of that driver to place his bus in a position which put other persons at risk. Further, the Torrens’ investigation of that matter disclosed potentially mitigating circumstances which do not apply to this situation. The second incident, at a bus depot did not result in injury although I accept that the limited CCTV evidence appears to indicate quite inappropriate behaviour which could have led to disciplinary action.

[31] Section 387 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.”

[32] I have considered each of these factors on all of the evidence before me.

Valid Reason

[33] Notwithstanding legislative changes which have now separately identified various elements which were previously embedded in the concept of a valid reason, I have applied the principles specified by Northrop J in Selvachandran v Peterson Plastics Pty Ltd 10.

[34] Mr Panchal's decision to move the bus to stop the pedestrians from walking in front of it and his subsequent substantial misjudgement in hitting a pedestrian represents a valid reason for the termination of his employment. It was conduct fundamentally inconsistent with his function. The incident cannot be simply described as an accident because Mr Panchal initiated the forward motion of the bus for an unacceptable purpose. Had it been the case that the pedestrian was hit by the bus as it was travelling down the road, I may have arrived at a different conclusion.

[35] I have concluded that Mr Panchal's employment history was such that, while it did not bring about the termination of employment decision, it did not serve to indicate that this was the first serious transgression such that termination of employment might be avoided. I am not satisfied that Mr Panchal’s employment history was a significant factor in the internal appeal process conducted by Mr Lamont.

Notification of the reason

[36] Mr Panchal was notified of the reason for the termination of his employment. Ms Brown advised him of this at the conclusion of the disciplinary meeting on 22 April 2014. Ms Brown also advised Mr Panchal of his capacity to appeal her decision.

[37] Mr Panchal was similarly advised of Mr Lamont's decision to refuse his appeal, and the basis for that decision on 12 May 2014. That was confirmed in written advice provided to him on 14 May 2014.

Access to a support person

[38] Torrens facilitated Mr Panchal's access to a support person at both the initial discussion with Ms Brown and the subsequent appeal with Mr Lamont.

Warnings for unsatisfactory performance

[39] Mr Panchal was not dismissed for unsatisfactory performance. Notwithstanding this, I have noted the warnings he was given over the duration of his employment and the account Ms Brown took of these. It may have been the case that, if Mr Panchal had an exemplary performance record, Torrens could have adopted a difference outcome to the disciplinary process, but I do not consider that the limited recognition of that employment history was inherently unfair.

Torrens size - impact on policies and procedures

[40] Torrens is a substantial employer. I am satisfied that it had policies and procedures in effect to deal with disciplinary issues such as this. I am also satisfied that Torrens followed these processes so as to give Mr Panchal a fair access to the disciplinary process and subsequent appeal opportunity.

Torrens size - access to Human Resources expertise

[41] Whilst the evidence does not explain Torrens’ access to human resources expertise, I have taken it that Torrens is large enough to have access to that expertise and that the absence of references to it reflects conscious decisions made by Torrens.

Other Matters considered relevant

[42] I have noted that a consequence of the termination of Mr Panchal's employment is that he has had to undertake casual bus driving work for another employer and that this work is less certain and secure. I have taken this into account in weighing up the overall circumstances of this matter.

[43] I have also taken into account that the injury sustained by the pedestrian was not as serious as it might have been.

Conclusion - harsh, unjust or unreasonable

[44] I do not consider the termination of Mr Panchal's employment was harsh because he made the decision to drive the bus toward the pedestrians to stop them crossing in front of him. The pedestrian actions in that respect were understandable as the rear of the bus was blocking a substantial part of the pedestrian crossing. Mr Panchal’s actions in moving the bus forward in those circumstances were insistent with his primary responsibility as a bus driver. His subsequent misjudgement of the location of the last pedestrian was a serious misjudgement that could have been avoided. That termination of employment clearly had significant consequences for Mr Panchal. However, those consequences must be balanced against the significance of his actions and the potentially catastrophic consequences.

[45] I do not consider that the termination of Mr Panchal's employment was unjust because evidence clearly confirms that Mr Panchal chose to drive the bus forward to stop the pedestrian movement in front of the bus. His election to do this created the environment where his subsequent misjudgement of the pedestrian’s location had dire consequences.

[46] The termination of Mr Panchal's employment was not unreasonable because his employment record gave rise to legitimate questions about his past behaviours. More particularly, Mr Panchal's circumstances were significantly different to those of the other circumstances bought to my attention. The accident which occurred in Light Square on the same day did not involve a deliberate act on the part of that driver which then created an environment which enabled the accident to occur. The earlier incident in a bus depot did not result in injury although it could have given rise to a disciplinary investigation of a similar nature to that which was applied to Mr Panchal. Those examples do not disclose a process which was so inconsistent that it makes the termination of Mr Panchal’s employment unfair. The process followed to terminate Mr Panchal's employment was entirely appropriate and reasonable. There is no doubt that Torrens could have elected to apply a penalty other than termination of employment. However, that does not make the termination decision unfair.

[47] As a consequence, I have concluded that the termination of Mr Panchal's employment was neither harsh, unjust or unreasonable. As a result it cannot be regarded as unfair and the application will be dismissed accordingly. An Order (PR557407) to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

R Clarke agent for the Applicant.

S Dowd counsel for the Respondent.

Hearing details:

2014.

Adelaide:

October 13, 14.

 1   Exhibit A6

 2   Exhibit R4, attachment TH9

 3   Exhibit R2, paras 5 and 6

 4   Exhibit R7, para 47

 5   Exhibit R4, attachment TH10, page 3

 6   Exhibit R7, paras 36 and 37

 7   Exhibit R4, attachments TH9 and TH10

 8   Exhibit R7, para 47

 9   Exhibit R4, para 73

 10 (1995) 62 IR 371 at 373

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<Price code C, PR557406>