Steven Williamson v Path Transit

[2019] FWC 6153

[2019] FWC 6153

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Williamson
v
Path Transit
(U2019/4244)

COMMISSIONER WILLIAMS PERTH, 11 SEPTEMBER 2019

Application for an unfair dismissal remedy.

This matter involves an application made on 12 April 2019, by Mr Steven Williamson (Mr Williamson or the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is Path Transit (the Respondent).

[1] The application proceeded to conciliation but was not resolved and so has been referred to myself for determination.

Background

[2] It is not disputed that on 25 March 2019, Mr Williamson gave the Respondent a letter of resignation of the same date. For the Applicant however, it is submitted that at a disciplinary meeting he was told he was going to be dismissed for misconduct but that he could resign if he wanted to avoid that. The Applicant says because of this he then resigned, and this constitutes a dismissal under section 386(1)(b).

[3] At the hearing of this matter evidence was given by the Applicant and his wife Mrs Tamara Williamson (Mrs Williamson). Evidence for the Respondent was given by Mr Marc Grigg the Area Manager for the Morley contract with Past Transit, Keolis Downer and Mr Philip Robinson an Operations Supervisor at the Respondent’s Welshpool depot.

The evidence and factual findings

[4] Mr Williamson was first employed by the Respondent as a bus driver on 17 September 2012.

[5] The Respondent has a strict mobile device policy which states use of mobile phones results in dismissal (the Policy). This Policy is detailed in the Respondent’s Employee Manual. The Policy states that employees wishing to use mobile phones may do so only when the bus is parked at an outer termini and/or designated layover area. Drivers must be out of the driver’s seat when using a mobile phone. The use of mobile phone Bluetooth equipment or other types of headsets is prohibited whilst operating plant and equipment. The Policy states that breaches of these Policy provisions are a serious breach of safety and would be subject to dismissal.  1

[6] This is reinforced under a heading specifically referring to bus drivers which simply states that the use of a mobile phone whilst in control of a bus is a dismissible offence.

[7] Mr Williamson most recently received a copy of the employee manual in July 2015.

[8] In addition, the evidence is that the Respondent regularly places notices around the depots reminding driving staff not to use mobile phones and the consequence if they do is dismissal.

[9] A complaint was made to the Respondent that Mr Williamson was using a mobile phone while he was driving a bus. Consequently, an investigation was undertaken into these allegations which culminated in the Respondent on 22 March 2019 sending a letter to Mr Williamson. That letter referred to allegations of him using a mobile phone on the 19 and 20 of February 2019 and 14 March 2019. The letter advised him he was required to attend a disciplinary hearing the following Monday, 25 March 2019, he would be paid for the hearing and he had the right to be accompanied by an appropriate representative. 2

[10] Mr Williamson says he had known about the allegations for two weeks before he received this letter and they related to driving buses in the depot not on public roads. 3

[11] At the disciplinary meeting on 25 March 2019, Mr Grigg was present with Mr Robinson. Mr Williamson attended and at the commencement of the meeting was asked whether he would like to have a support person to which he said he did not.

[12] Mr Grigg told Mr Williamson it was alleged that he had used his mobile phone while driving several of the company’s buses. An investigation had found that he had done this on three occasions.

[13] Mr Grigg had his computer with CCTV footage of each occasion downloaded. His evidence was this footage clearly showed Mr Williamson using his mobile phone while driving the vehicles. The footage which also shows the speed of the vehicle, disclosed that on one of the three occasions Mr Williamson was using his mobile phone when he was driving at over twice the posted speed limit, being 37km an hour in a 15km hour zone.

[14] I accept that Mr Grigg asked Mr Williamson if he’d like to watch the footage and that he replied he knew what was on the CCTV and didn’t need to see it.

[15] Mr Williamson’s evidence was that because specific dates had been contained in the letter inviting him to attend the meeting he did not want to see the CCTV footage as Mr Grigg would not have it there at the meeting if it didn’t show what was alleged against him and showed he was on the phone. 4

[16] Mr Williamson did not during the meeting or afterwards deny he used his mobile phone while driving the bus on three separate occasions as alleged. 5

[17] Mr Grigg asked him if he knew what the company’s Policy regarding mobile phone usage was and he agreed he did. Mr Grigg provided him with a copy of the Employee Manual he signed in July 2015 which contains that Policy.

[18] Mr Williamson knew about the Policy, that mobile phones were not to be used whilst driving. 6He also knew to use a mobile phone while driving a bus was a dismissible offence.7

[19] Mr Williamson agreed he had seen notices around the depots advising driving staff not to use mobile phones and of the possible consequences. 8

[20] He was asked why he was using his mobile phone and Mr Williamson said that he had been refuelling on those occasions and that he sometimes got calls from traffic controllers on his phone. He said this was commonplace because the traffic controllers needed to get information quickly.

[21] Mr Williamson did not give evidence that the three instances when the Respondent alleged he used his mobile phone whilst driving were phone calls from the traffic controllers. Indeed, I note that the application filed by Mr Williamson in response to question 3.2 states that he took three calls on his mobile phone from his family to enable him to say good night to his two young boys. This is consistent with the evidence of Mrs Williamson.  9

[22] Mr Grigg’s evidence was that Mr Williamson stated he presumed refuelling was exempt.

[23] Mr Williamson also sought to explain that the likely person who had complained about him had a history of trying to get him into trouble and had previously complained that Mr Williamson had bullied him which was not correct.

[24] Mr Grigg in response steered the discussion back to the issue of mobile phone use whilst being in control of a bus.

[25] Mr Williamson says that he told Mr Grigg he was a safe driver who never used his phone while driving on public roads.

[26] Mr Grigg’s evidence was he told Mr Williamson there was no such exemption and no Path Transit employee was exempt.

[27] Mr Grigg then asked Mr Williamson to leave the room whilst he and Mr Robinson discussed the matter. In that discussion between Mr Grigg and Mr Robinson their evidence was that there was nothing that Mr Williamson said that they considered as a valid explanation for the multiple breaches of the Policy. They concluded that they would have to consider dismissing Mr Williamson.

[28] Mr Robinson went to bring Mr Williamson back into the room and before they re-entered the room Mr Robinson said to Mr Williamson that it wasn’t looking good for him.

[29] Mr Robinson’s evidence was that Mr Williamson then asked him about the difference between resigning and dismissal and Mr Robinson told him one might be better if he was applying for work but the other was better for Centrelink.

[30] The meeting resumed and Mr Grigg told Mr Williamson that they had looked at the evidence and his responses and were considering terminating his services. Mr Grigg says he asked Mr Williamson to provide any reason why this should not occur.

[31] Under cross examination Mr Williamson agreed he was asked to provide reasons why they should not terminate him. 10 His evidence was that in response to this invitation he put nothing further to them because he says they had not listened to anything he had said, 11 but his evidence was also that he did put to them he believed he was a fairly competent driver, was safe on the road and tried to obey the road traffic rules. 12

[32] Mr Grigg says he explained the mobile phone prohibition was a strict Policy which results in dismissal. He said that unless there were exceptional circumstances they could not set precedents because the Policy was transparent and obvious. Mr Grigg was cross-examined on this at length and was unshaken that this is what he explained to Mr Williamson.  13

[33] Mr Grigg’s evidence was that after this Mr Williamson asked what the difference was between resignation and dismissal and Mr Grigg replied that one would be more of him taking control.

[34] Mr Robinson’s evidence confirms that it was Mr Williamson during the meeting who first mentioned resignation when he asked Mr Grigg what the difference was between resigning and dismissal.

[35] The evidence of both Mr Grigg and Mr Robinson is that at this point Mr Williamson asked if he could make a phone call to his wife. Mr Grigg agreed to this request and Mr Williamson left the room to do so.

[36] Mr Williamson’s evidence is slightly different. Mr Williamson’s evidence was that when the meeting resumed after the first break he was told by Mr Grigg that they had looked at all the evidence and taken into account what he stated but because there was a breach of the Policy they had no option but to let him go, he would be terminated immediately. His evidence in chief was that Mr Grigg, then said they would accept his resignation instead of being dismissed.  14

[37] Mr Williamson agrees that he asked for a short break to ring his wife.

[38] Mr Williamson’s witness statement says after he returned to the meeting, he told the Respondent he would resign instead of being dismissed.  15

[39] Mr Williamson under cross examination explained he only tendered his resignation after he had been told that he was being terminated.  16

[40] Having considered the evidence of the three witnesses and observed them give this evidence, I prefer the evidence of Mr Grigg and Mr Robinson such that I find Mr Grigg did not say he was terminating Mr Williamson immediately but rather said words to the effect that unless there were exceptional circumstances they would have to apply the Policy strictly which results in dismissal for mobile phone usage whilst driving a bus. Separately, I find it was Mr Williamson who first raised the issue of resignation and how it was different from being dismissed, initially during the first break when he asked Mr Robinson about this and again during the resumed meeting when Mr Williamson asked Mr Grigg about resignation. I find that Mr Grigg did not, contrary to Mr Williamson’s evidence, say that the Respondent would accept Mr Williamson’s resignation instead of him being dismissed.

[41] Mr Williamson’s evidence was that after he requested a break he rang his wife and asked her to look on the computer at “Fair Work” to see if he had any unfair dismissal rights if he resigned in this type of situation. She told him that she couldn’t find the information, but from her memory of looking previously in the case of a forced resignation he would have rights. His evidence was that he returned to the meeting and told Mr Grigg and Mr Robinson that he would resign instead of being dismissed. 17

[42] The evidence of Mrs Williamson was that Mr Williamson rang her and asked if she could look up whether he had unfair dismissal rights if he gave in his resignation. Her evidence was he said he had been told in the meeting that he had to be terminated. She told him that from a previous look at a website she believed if his resignation came through no choice of his own then he would have unfair dismissal rights. He then told her that he had to return to the meeting and that he would resign.

[43] Mrs Williamson in her evidence explained that after Mr Williamson received the letter dated 22 March 2019, requiring him to attend the disciplinary hearing she in preparation read cases and information on the Fair Work website “...that if he was in a position where it was either he was given the opportunity to resign or he would be terminated, that if he chose to resign it would still be classified as an unfair dismissal.”

[44] Both Mr Grigg and Mr Robinson in their evidence say that when Mr Williamson returned to the meeting having spoken to his wife, he asked Mr Grigg if he would accept his resignation. Their evidence was that Mr Williamson explained he had decided that it would look better if he resigned which would help him get future work. In cross examination consistent with this, Mr Williamson explained that the purpose of resigning was to give himself a better possibility of obtaining further work.  18

[45] Mr Grigg, in reply to Mr Williamson stating he would resign, said he would accept his resignation.

[46] The next day Mr Williamson handed in his written resignation. His letter of resignation dated 25 March 2019, stated he was a resigning immediately due to personal reasons.  19

Submissions

The Respondent

[47] The Respondent submits the Mr Williamson resigned verbally during the disciplinary meeting on 25 March 2019. He then confirmed this in writing the next day and that Mr Williamson resigned of his own free will. He was not forced to do so because of any conduct of the Respondent.

[48] There was no dismissal and so for this reason the application should be dismissed.

[49] In terms of merit there is no dispute that Mr Williamson breached the Respondent’s Policy which prohibited using a mobile phone while driving a bus. The evidence is not disputed that he did this on three separate occasions.

[50] Mr Williamson was aware of the Policy and the seriousness of it which was regularly reinforced with the workforce. He knew it was a dismissible offence.

[51] Mr Williamson did not during the disciplinary meeting on 25 March 2019, put forward any reason why the Respondent should excuse his repeated misconduct and not dismiss him.

[52] Consequently, this application should be dismissed.

The Applicant

[53] The Applicant submits that during the disciplinary meeting on 25 March 2019, he was told by the Respondent that he was going to be dismissed immediately. That ultimatum did not leave the Applicant with any real choice.

[54] The resignation was not voluntary, the reality is he was forced to resign. The jurisdictional objection should be rejected, and the application should be considered by the Commission on its merits.

[55] With respect to the merit of the case if the Applicant was dismissed it was his evidence that he was driving in the depot and that his understanding was that in order for traffic controllers of the Respondent to contact him he was able to use his mobile phone.

[56] He explained this at the disciplinary meeting with Mr Grigg on 25 March 2019.

[57] He was a long-term employee with over six and a half years’ service and no prior warnings or other disciplinary actions. The Policy says the employee ‘may’ be dismissed, it is not mandatory.

[58] In all the circumstances the Applicant’s dismissal was unfair.

Consideration

[59] The matters the Commission must consider when determining an application made under section 394 of the Act are provided for in section 387 of the Act, which is set out below.

“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.”

Was the Applicant Dismissed?

[60] A person has been dismissed as defined in section 386 of the Act if their employment has been terminated on the employer’s initiative or they have resigned but were forced to do so because of the conduct or a course of conduct engaged in by their employer.

[61] In this case there is no dispute that Mr Williamson resigned. There is no dispute that during the meeting on 25 March 2019, he verbally offered his resignation which Mr Grigg accepted. Mr Williamson confirmed his resignation in writing the next day.

[62] The factual findings above do not support a conclusion that Mr Williamson was forced to resign from his employment because of the conduct or a course of conduct engaged in by the Respondent.

[63] The facts are that Mr Williamson, not Mr Grigg nor Mr Robinson, first raised the issue of resigning. At no time did Mr Grigg nor Mr Robinson suggest in any way to him that he should consider resigning rather than being dismissed.

[64] It was very clear to Mr Williamson during the meeting on 25 March 2019, that the Respondent was likely to terminate his employment because of the three instances of misconduct which he did not deny, namely driving a bus whilst using a mobile phone. However, before the Respondent finally made that decision it was Mr Williamson who asked for a break in the meeting so that he could speak to his wife on the phone. When the meeting resumed, he verbally tendered his resignation. That was a choice Mr Williamson made, he was not forced to by the Respondent.

Conclusion on the jurisdictional objection

[65] Mr Williamson’s employment was not terminated on the employer’s initiative. He was not dismissed and so was not able to make this application which accordingly must be dismissed.

[66] For completeness if in the alternative it was the case that Mr Williamson was dismissed by the Respondent then in terms of section 387 my decision would be as follows.

[67] There was a valid reason for Mr Williamson’s dismissal, namely on three occasions breaching the Respondent’s Policy which prohibited driving buses whilst using mobile phones.

[68] Mr Williamson was notified of the reasons the Respondent was considering dismissing him by the letter dated 22 March 2019, and verbally during the meeting on 25 March 2019.

[69] Mr Williamson was given an opportunity to respond to the reasons the Respondent was considering dismissing him during the meeting on 25 March 2019.

[70] There was no refusal by the employer to allow Mr Williamson to have a support person present.

[71] There were no prior warnings for unsatisfactory performance however the valid reason for dismissal relates to instances of misconduct as distinct from unsatisfactory performance.

[72] The Respondent is a large employer and the procedures followed reflected that as would be expected. There is no suggestion that the absence of dedicated a Human Resources Manager impacted on the procedures followed which in any event where entirely appropriate.

[73] Other matters relevant in this case were Mr Williamson’s otherwise unblemished service of six and a half years.

[74] Considering all of these matters Mr Williamson’s misconduct, on three occasions, involved a breach of important safety requirements that bus drivers are unsurprisingly expected to comply with. He was fully aware of the prohibition of driving whilst using a mobile phone and that this was a dismissible offence.

Conclusion on merit

[75] If the Respondent had in fact dismissed Mr Williamson before he resigned then his dismissal was neither harsh nor unjust nor unreasonable. Mr Williamson was not unfairly dismissed.

Disposal of the application

[76] As explained above the Commission has upheld the jurisdictional objection and accordingly the application is now dismissed.

Appearances:

Mr Patrick Mullally, WorkClaims Australia, for the Applicant.

Mr Chris Stanley, Cemec Consulting the Respondent.

Hearing details:

2019.

Perth:

23 July.

Printed by authority of the Commonwealth Government Printer

<PR711993>

 1   Exhibit R4.

 2   Exhibit R2.

 3   Exhibit A1 [22], PN 373.

 4   Exhibit A1 [10] and [24], PN 377.

 5   PN376.

 6   Exhibit A1 [25], PN367 & PN368.

 7   PN369.

 8   PN378 & PN379.

 9   PN453.

 10   PN406.

 11   PN408, PN409 and PN410.

 12   PN412.

 13   PN118 – PN127.

 14   Exhibit A1, [16].

 15 Ibid. [19].

 16   PN402.

 17 Exhibit A1, [18] and [19].

 18   PN400.

 19   Exhibit R3.