Viorel Avram v Moorabin Transit Pty Ltd T/A Ventura

[2016] FWC 9061

[2016] FWC 9061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Viorel Avram
v
Moorabin Transit Pty Ltd T/A Ventura
(U2016/10693)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 19 DECEMBER 2016

Application for relief from unfair dismissal.

[1] On 26 August 2016 Mr Viorel Avram (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[2] A hearing was held on 8 December 2016. I have taken account of all submissions and evidence.

[3] The employer accepted that Mr.Avram’s resignation was a termination of employment, given the circumstances. I agree. It was a summary termination without notice. There are no other jurisdictional issues and Mr.Avram is a person protected from unfair dismissal.

(a) Valid reason

[4] It is not in dispute that Mr.Avram hit a bus shelter with the bus he was driving on 8 August 2016. The employer submits that there was a valid reason because Mr.Avram was driving with one hand on the steering wheel in breach of Ventura’s driving competency standards, the bus was driven at high speed although a passenger was waiting, Mr.Avram had stopped there before without incident, other bus drivers stopped without incident, Mr.Avram did not accurately report the extent of the accident, and the site was left unsafe because of a failure to report by Mr.Avram. It submits that the accident was caused by Mr.Avram’s negligent driving.

[5] Mr.Avram submitted that there was no valid reason for termination of employment. Rather Mr.Avram made an error of judgement in judging the proximity of the bus shelter, the bus shelter was too close to the road, there was a car parked illegally, it was dark at the time, Mr.Avram had received no warnings for previous incidents, and the applicant should have been given the benefit of the doubt¹, and other matters. In particular it was argued on Mr.Avram’s behalf that the bus shelter protruded on to the road in breach of VicRoads requirements, and this was the cause of the accident rather than any negligence or lack on Mr.Avram’s part.

[6] CCTV footage of the incident was tendered. It showed that Mr.Avram did not have both hands on the wheel in a period leading up to the accident. He initially did have both hands on the wheel but for a period of driving which included passing cars and then turning into the bus stop his left hand is placed on the side of his cabin rather than on the wheel. This is a breach of his obligations as a driver which are set out in employer training documents, and which reflect Mr.Avram’s training². The obligation is ‘maintains control of the wheel with two hands at all times’. The CCTV does not in my view show that Mr.Avram was speeding, and it is overall of limited assistance.

[7] The bus collided with the bus shelter and severe damage was caused to the shelter. The roof of the shelter had been knocked off metal posts and had fallen onto the ground, and there was broken glass³. It had almost been completed destroyed. I accept the evidence of Mr.Vong that a waiting passenger who had been standing outside the shelter was injured. In my view there is some force in the employer submission that if children or others had been waiting under the shelter there may have been a large number of injuries, which is a very serious matter.

[8] There was also a conflict of evidence between Mr.Avram and Mr.Floyd about whether or not Mr.Avram made an accurate report of the incident. Mr.Avram’s evidence was passionate and determined, and in my view had an element of self interest. On the other hand Mr.Floyd gave evidence which was frank and unembellished. I prefer the evidence given by Mr.Floyd. The telephone call in question was about 6 minutes, which suggests a long discussion. On the other hand Mr.Floyd did not tell Mr.Avram to stay at the site or immediately despatch someone to inspect the damage, as he would have done had he known the extent of the damage.

[9] In my view Mr.Avram rang Mr.Floyd immediately after the incident and did not tell Mr.Floyd that the roof of the shelter had broken off, that a passenger had been hit, that glass had been pushed out of its frame and was on the ground, that the bus shelter was unusable by passengers or that debris was blocking the pedestrian path and protruding on to the curb⁴. I accept that Mr.Floyd and the employer were not aware of the extent of the damage, which was severe, until another driver told him that the shelter had been ‘flattened’ later in the morning. He was under the impression until then that the extent of the damage was broken glass⁵. This means that the site was left in a dangerous condition and unattended. I accept the evidence of Mr.Floyd that Mr.Avram would have been told to stay at the site and safeguard it if he had been told of the extent of the damage. Instead the site was left in an unsafe condition.

[10] There was considerable evidence put about the nature of the bus shelter, and whether the roof of the shelter protruded on to the road. Mr.Avram argued that this was the cause of the accident. The evidence was inconclusive at best. There is no photograph of the bus shelter before the accident, and photographs of the accident site are of little assistance. A number of other photographs and diagrams were tendered. These included a number of photographs and measurements of the new shelter made by Mr.Vong⁶, who claimed that these measurements reflect those of the old shelter. Mr.Avram tendered a diagram which purported to demonstrate the problems with the shelter⁷, but there was little reason to connect this diagram with the old shelter other than his belief and assertion. He also tendered photographs⁸ which purported to demonstrate that some shelter roofs do protrude in the manner claimed, but again there is little reason to connect this evidence with the old shelter. He also tendered photographs of the bus immediately after the accident⁹. However those photographs do not show the bus in motion when the accident occurred and I am unclear as to how the bus could have come to rest in such a position. In my view the evidence is inconclusive at best. If anything I would be more convinced by the measurements made of the new shelter by Mr.Vong as possibly reflecting the structure of the old. Even if the roof had protruded it was Mr.Avram’s responsibility to avoid the roof, and I note that he had not had this difficulty with the roof before, and nor possibly had other drivers.

[11] Mr.Avram was responsible for driving the bus, which is a large, heavy, and very dangerous piece of machinery. It was his responsibility to drive it safely in the prevailing conditions, which were that it was dark, and there was a car parked. There is some limited evidence that he was not driving it in a manner which was required by legitimate employer directions. While the bus was driven by him and under his control and responsibility it hit a stationary object, causing severe damage to a bus shelter, and some injury to a passenger. If circumstances had been different and if other passengers had been waiting in the shelter the injuries could have been more extensive. In my view Mr.Avram was responsible for the accident caused by his driving of the bus.

[12] In my view the employer has established that there was a valid reason for termination of employment.

(b) Notified of reason

Mr.Pandian gave evidence that at the meeting held between Mr.Avram, Mr.Vong and himself on 11 August 2016 Mr.Vong told the applicant that he had to ‘let the Applicant go’ because of the negligent driving, especially unsafe speed with one hand, a passenger got injured, the applicant did not tell the full truth when he reported the incident, the cost of repairs¹⁰. Mr.Vong gave similar but not identical evidence¹¹. Mr.Avram denied this. However I found Mr.Pandian to be a witness who gave evidence in a frank and unembellished manner. I prefer his evidence to that of Mr.Avram for reasons already discussed. I also find some support from the evidence of Mr.Vong. Mr.Avram was notified of the reasons for termination.

(c ) Opportunity to respond

Mr.Avram on his own evidence provided an explanation for the accident when he spoke to Mr.Vong on 8 August, namely that there was a problem with the shelter roof which may have protruded on to the road¹². His evidence is that he was not given the opportunity to respond on 11 August. However Mr.Pandian gave evidence that Mr.Vong outlined a number of reasons for termination already discussed and then that ‘The applicant sought to argue the reasons and asked David [Vong] to reconsider, that the passenger was not injured when he checked with him¹³. Mr.Vong gave evidence that Mr.Avram raised a number of issues¹⁴. For reasons already given I prefer the evidence given by Mr.Pandian and Mr.Vong. Mr.Avram was given an opportunity to respond.

(d) Support person

The applicant conceded that Mr.Avram did not ask for a support person. In any event Mr.Pandian was present as a support person. The employer did not refuse to provide a support person.

(e) Unsatisfactory performance

It is agreed that this is not relevant.

(f) and (g) Human resources specialists, and the size of the business

It is agreed that this is not a small business and that no discount in standards should be adopted having regard to these matters.

(h) Other

[13] It is impossible to listen to this matter without having concern about the adverse consequences for Mr.Avram. He appears to have difficulties in finding alternative employment, and has a good record. The personal consequences for him of a mistake at work are serious.

[14] However he made a mistake, and a very serious mistake, which could have resulted in significant injuries. He did not accurately report the accident to his employer, which raised further risks to the public. He was in control of a very large, heavy and dangerous piece of machinery, and while in control of it hit a stationary object. He did not comply with employer directions as to driving. He failed in a central duty as a driver of a bus. I have taken account all matters. In my view the termination of employment was not harsh, unjust or unreasonable. Mr.Avram was accorded a fair go all round. I dismiss his application. An order dismissing the application is contained in PR588677.

DEPUTY PRESIDENT

Appearances:

Mr G Dircks for the applicant

Mr R Millar of counsel for the respondent

Hearing details:

2016

Melbourne

8 December

1 Applicant submissions paragraphs 17-23

2 Exhibit M6, paragraphs 2-4, Attachments GC1-GC3

3 Exhibit M1, paragraph 7, Annexure DV1

4 Exhibit M5, paragraph 6

5 Exhibit M5, paragraph 8

6 Exhibit M3

7 Exhibit A1, Attachment VA8

8 Exhibits V4, V5

9 Exhibit A1, Attachments 9 and 10

10 Exhibit M4, paragraph 9

11 Exhibit M1, paragraph 28

12 Exhibit A1, paragraph 50-51

13 Exhibit M4, paragraph 11

14 Exhibit M1, paragraph 31

Printed by authority of the Commonwealth Government Printer

<Price code C, PR588676>