Stephen Wayne Harrison v Ventura Transit Pty Ltd - [2022] FWC 335

[2022] FWC 335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Stephen Wayne Harrison
v

Ventura Transit Pty Ltd

(U2021/8047)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 25 FEBRUARY 2022

Application for an unfair dismissal remedy – bus driver – failure to be vaccinated against COVID-19 or produce medical exemption – Victorian government direction – whether valid reason – procedural fairness – dismissal not harsh, unjust or unreasonable – application dismissed

On 15 November 2021 Stephen Wayne Harrison (the applicant or Mr Harrison) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy. He was dismissed on 26 October 2021 by Ventura Transit Pty Ltd (Ventura or the respondent). At the date of dismissal Mr Harrison was employed as a bus driver.

Mr Harrison claims his dismissal was harsh, unjust or unreasonable. He does not seek reinstatement. He seeks compensation.

Ventura oppose the application. It contends Mr Harrison’s dismissal was not unfair and no issue of remedy arises.

Conciliation was conducted on 20 December 2021. The matter did not resolve.

I issued directions on 6 January 2022.

In advance of the hearing, I received materials from Mr Harrison and Ventura.

I heard the matter by video conference on 16 February 2022.

Both parties were self-represented; Mr Harrison with the assistance of a lay representative Mr Gregory; and Ventura via its Chief Operations Officer (Mr Wood) assisted by Human Resources Manager (Ms Caldow).

Evidence

Mr Harrison gave oral evidence on four affidavits filed in his name[1] and on sixteen documents accompanying his materials.[2]

A Senior Operations Supervisor Benjamin Swan gave evidence for Ventura on a statement filed in his name[3] and on seventeen documents accompanying the employer’s materials.[4]

Some factual disputes emerge from the evidence. In those respects, issues of credit are relevant.

Mr Harrison, whilst attentive and respectful, was vague and inconsistent on detail particularly in relation to whether he received or had seen multiple communications from Ventura about a vaccination mandate and its request to meet between his suspension and dismissal. When pressed, Mr Harrison frequently defaulted to being unable to recall. It was particularly unconvincing that Mr Harrison said, in answer to questions from myself, that the signature on a letter sent to Ventura under his name on 18 October 2021[5] was his signature but then retracted that evidence in cross examination. I treat his evidence with some caution.

Mr Swan gave evidence conscientiously. His recall was generally reliable; on matters within his direct knowledge, it was a proper basis for fact-finding. However, Mr Swan was not the officer who made the decision to dismiss. He had no dealings with Mr Harrison once Mr Harrison had been stood down. Whilst Mr Swan attested to the authenticity of business records, I apply a level of caution to hearsay elements of his evidence.

Ventura did not call Ms Caldow who communicated directly with Mr Harrison in the eleven-day period between his stand down and…

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.

Keep reading for free

Create a free CaseChat account to read Stephen Wayne Harrison v Ventura Transit Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FWC 335
Decision Date

CaseChat Overview and Summary

In this case, Stephen Wayne Harrison sought a remedy for an unfair dismissal by Ventura Transit Pty Ltd, which dismissed him for failing to comply with the COVID-19 vaccination mandate issued by the Victorian government. The court considered whether the dismissal was harsh, unjust, or unreasonable, focusing on whether there was a valid reason for dismissal, whether Mr Harrison was notified of the reason, and whether he had an opportunity to respond. The court found that Ventura had a valid reason for dismissal, as Mr Harrison was unable to perform his role as a bus driver due to his non-compliance with the vaccination mandate. The court also found that Mr Harrison had multiple opportunities to respond to the employer's communications and failed to attend two meetings scheduled to discuss his position. The court concluded that Mr Harrison's dismissal was not harsh, unjust, or unreasonable, and dismissed the application.

Orders