William Callander v Busways Blacktown Pty Ltd

[2012] FWA 7622

[2012] FWA 7622

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

William Callander
v
Busways Blacktown Pty Ltd
(U2012/7632)

COMMISSIONER MCKENNA SYDNEY, 21 SEPTEMBER 2012

Application for unfair dismissal remedy - application dismissed.

[1] William Callender (“the applicant”) has lodged an application, made pursuant to s.394 of the Fair Work Act 2009, for an unfair dismissal remedy. The applicant contends the decision by Busways Blacktown Pty Ltd (“the respondent”) to dismiss him was harsh, unjust and unreasonable. The applicant seeks an order for monetary compensation.

[2] The applicant commenced employment with the respondent as a bus driver on 14 October 2007, initially as a casual employee and subsequently as a permanent employee. The applicant also became the chief workplace delegate for the Transport Workers’ Union. The applicant considers that his union activities made him “a target” for some managers, although this was denied by the respondent.

[3] As to matters relevantly preceding the dismissal, the respondent formally warned the applicant about certain matters in a letter dated 29 February 2012. On 3 March 2012, the applicant lodged a driver occurrence report concerning the behaviour of local school students on the route that formed part of his run. There is a dedicated school bus, but some students prefer to walk from the school to a bus stop near a local club to catch the general passenger bus that was on the applicant’s run. The applicant was concerned about the “bad behaviour” of the students who boarded at this particular bus stop. Following the report, the applicant was instructed to charge the students boarding the bus at this particular bus stop a $1.00 fare, and not to allow them travel free on their bus passes. It is not entirely clear why the applicant was given this instruction and it appears the instruction was not given to other drivers.

[4] On 22 March 2012, the applicant advised students who were boarding the bus at the particular bus stop they could board the bus but had to pay a $1.00 fare (i.e. rather than travelling for free using their school bus passes). The applicant’s evidence was that one student seemed to take particular offence at being told about the fare and stated loudly and clearly to the applicant he would not pay the fare and also stated to the applicant words to the effect that the applicant was pocketing the fare for himself.

[5] The bus had a closed circuit video recorder (“CCVR”) camera. A recording of the events in question was in evidence, but without a sound recording. The interaction between the applicant and the student was the subject of differing constructions by the applicant and the respondent. The applicant’s case contended that the applicant, who was seated in the driver’s seat of the bus, outstretched his left arm/hand to cover the entrance to the bus after the student refused to pay the fare, that the student continued walking and, as a result, the student walked into the applicant’s hand. The respondent’s case contended that the applicant put out his hand and grabbed the student’s arm.

[6] The applicant radioed the respondent’s control room to seek to have the student removed from the bus by the police. The student lingered very briefly towards the front of the bus before alighting of his own initiative. It seems likely the student would have heard the applicant at least commence his contact with the control room, including the reference to the police.

[7] These events, from the time the student entered the bus to the time he alighted, occurred over a very short time - a matter of seconds. The physical contact between the applicant and the student was momentary.

[8] While there was no direct evidence as to this, it seems the student immediately returned to his school and made some form of report or complaint to the deputy principal. The deputy principal, in turn, contacted the respondent’s management at some time after 3.20pm on 22 March 2012 and stated that one of the school children had returned to school in a very distressed state because of an incident on the bus driven by the applicant, although, again, there was no direct evidence as to the student’s demeanour. In this respect, it may be noted that the deputy principal also (subsequently) sent an email dated 30 March 2012 to the respondent which read, in part:

“[The student] came to my office at approximately 3.20pm to report that he had tried to get on the bus near the RH RSL but was refused entry until he paid $1. [The student] said that he showed the bus driver his bus pass and walked onto the bus. He said the bus driver grabbed him and threatened to get the police if he didn’t pay the dollar. [The student] got off the bus and came back to the school.”

[9] On 22 March 2012, the student’s father also contacted the respondent to complain about the incident and advised the matter had been referred to the NSW Police Force.

[10] The following day, the applicant was suspended with pay pending an investigation. For its part, the respondent’s management reported matters to the relevant government transport authority, as it was bound to do. In consequence, the applicant’s authority to drive buses was suspended.

[11] The reasons for the respondent’s decision to effect the dismissal were outlined in the following way in a letter dated 30 March 2012:

“... I refer to the meeting on 30 March 2012 at the Blacktown Depot which you attended with Thomas Geraghty as your representative. Busways was represented at the meeting by Cameron Webster, Maurice Hogan, and myself.

The purpose of the meeting was to conclude the investigation into allegations against you, as outlined below:

1. Breaching Busways policy in the alleged assault of a school student.

2. Breaching the employer / employee relationship by being untruthful during previous discussions of the above incident.

3. Breaching Transport for NSW guidelines resulting in an investigation and suspension of your Driver Authority.

4. Subsequent police investigation into the alleged assault of a school student.

At two previous meetings held on 23 March 2012, you were provided with an opportunity to respond to the alleged assault. The CCTV footage which was viewed by all present at the second meeting, confirming that you did handle the school student, is contrary to your version of events, and therefore Busways does not accept your explanation of the events as credible.

Busways is obligated to inform Transport for NSW of any incident of this nature and as a result they have suspended your Driver Authority pending their own investigation.

Busways has taken into account your employment history, including the fact that you're currently on a Final Written Warning, and in view of the seriousness of these breaches, Busways has decided to summarily dismiss your employment with immediate effect.

You will be paid until the completion of your normal weekly rostered shift on Saturday 24 March 2012 prior to your Driver Authority being suspended.

Please return all company-issued equipment .to Cameron Webster, Manager Blacktown depot at your earliest convenience.

I wish you the best in the future.”

[12] While the applicant’s authority to drive was temporarily suspended by the relevant government department, that suspension was subsequently revoked. The letter from the relevant department read, in part:

“I am writing to you about your bus driver authority [authority reference]. As you are aware, the authority was suspended by Roads and Maritime Services (RMS) on 26 March 2012 pending the outcome of a police investigation into an allegation you had assaulted a student attempting to travel on your bus, MO9229, on 22 March 2012.

...

After careful consideration and perusal of the available evidence including CCTV footage of the incident, and advice from the NSW Police Force, it is determined not to proceed further in this instance other than to issue you with a formal warning. Accordingly, your driver authority [authority reference] has now been reinstated. ...”

[13] Further, the police determined not to take any action in relation to a complaint that was made by the student’s father concerning the incident in question.

Submissions

[14] Counsel for the applicant, in a fully detailed argument referenced to authorities and the evidence, submitted there was no valid reason for the dismissal as the applicant. In short form, counsel for the applicant submitted: (a) the applicant had not assaulted the student and did not otherwise act in a way that would justify dismissal, let alone summary dismissal; (b) the applicant was not untruthful with the respondent about the incident; and (c) the applicant did not breach any internal policies or external regulations. Counsel further submitted the applicant was not afforded the procedural fairness of being given the opportunity to respond to the allegation he was untruthful. Counsel submitted that when a range of other matters are considered arising from the evidence, Fair Work Australia should consider whether the real motives for dismissing the applicant were more to do with the applicant’s union activities than his alleged misconduct. Counsel submitted that no reliance could be placed on the referral of the (then as yet to be investigated) allegations before the police and the transport authority as constituting a valid reason for the dismissal. It was also submitted that even if Fair Work Australia were to find the alleged misconduct had occurred, then summary dismissal was a gross and disproportionate response.

[15] The respondent’s representative submitted the CCVR footage did not show a driver merely putting out his hand to block the way of a student and it did not show a student trying to sneak on the bus behind another student. Further, the footage did not show the student at the back of the bus shouting a “tirade of abuse” at the driver. The respondent submitted that the behaviour of the applicant on 22 March 2012 amounted to an assault on a school child and that the applicant’s (initial) denial that he touched the student led to concerns about the applicant’s truthfulness. Moreover, when confronted with the CCVR footage, the applicant changed his version of events. Reliance was also placed on the fact the applicant was already on a final warning before the events on 22 March 2012. The respondent submitted that Fair Work Australia need not relevantly be concerned about whether there was an assault within the meaning of crimes legislation; rather, the circumstances needed to be considered in the context of other considerations, such as the respondent’s policies and external regulatory matters concerning passengers who are minors. Here, the applicant had taken the law into his own hands notwithstanding the policy and regulatory framework concerning school students. The applicant, it was submitted, had used excessive force in relation to the student and then tried to cover-up the seriousness by asserting he had merely put out his hand and it was the student who walked into his hand.

Consideration

[16] The mere fact certain allegations as to an assault were referred to the police and that the relevant transport agency suspended the applicant’s driver’s authority on the basis of the referral of the allegations would not, in and of themselves, have given the respondent a valid reason to dismiss the applicant. As things transpired, the police determined, in any event, not to take any action in relation to the complaint made by the student’s father. The government department determined to issue the applicant with a written warning in conjunction with the subsequent reinstatement of the applicant’s driver authority.

[17] The core issues for determination turn on the characterisation of the applicant’s actions in relation to the student and the responses the applicant gave to the respondent’s management when he was interviewed during the in-house investigation.

[18] The applicant’s case contended that the applicant outstretched his arm to prevent the student’s further entrance into the bus in circumstances where he refused to pay the $1.00 fare, and it was the student who walked into the applicant’s hand; and this was the full extent of any physical contact. I have reviewed the exhibited CCVR footage on a number of occasions in real time, in slow motion and as still images. The footage records the student showing the applicant his bus pass as he entered the bus and then some form of discussion ensuing. The CCVR footage shows the applicant’s hand then moving, pincer-like, onto the student’s arm as he passed along the aisle of the bus and, as such, I do not accept the applicant’s more benign description of what occurred. I accept the respondent’s contention that the CCVR recording shows, reasonably unambiguously notwithstanding the sub-optimal quality of the footage, the applicant grabbing the student on the upper arm, albeit other descriptors might be used such as grasped, clutched, gripped, restrained and the like.

[19] The evidence and submissions about what the applicant said when asked about the incident were in sharp dispute, with much turning on the context of the words “touch”, “contact” and the like. Irrespective of the differences in the disputed detail of the discussions and the semantics of the words used, I consider it is clear the applicant maintained to the respondent, as he maintained in these proceedings, he had not grabbed the student on the arm; and that the causation of the physical contact was attributable solely to the student walking into his hand. The respondent’s management reviewed the CCVR footage and did not accept the applicant’s account of what had transpired. I consider that it was reasonably open to the respondent to conclude the applicant’s account was not credible, considering what was recorded on the CCVR footage.

[20] Apart from the applicant’s denial of having grabbed the student on the arm being contradicted by the CCVR footage, the applicant recounted to the respondent ancillary matters which simply did not occur in connection with the incident. For example, the applicant in his witness statement at para 23 deposed that he had told the respondent’s management the student had walked through his hand and “went right to the back of the bus” and sat down. The applicant deposed he also informed the respondent that, after the student had seated himself at back of the bus, the student continued to repeat loudly that “All the money is going into your pocket”, whereupon the applicant radioed the controller about getting the police. Apart from providing this account to the respondent, the applicant also directly repeated before Fair Work Australia an almost identical version of events at paras 15-16 of his witness statement. In cross-examination, the applicant then said he did not know what the student was doing behind him and his main point at the time was that the student was being abusive, and that he could not contain him. The applicant also said that the student made a decision “further down the track” to leave the bus. The applicant said he then contacted the control room to advise the student had gone, of his own accord. The applicant described the student as having been “very aggressive” and it did not matter what the applicant said to the student as there was “no calming him down”. The applicant stated that as the student was leaving the bus he made the accusation that the applicant was pocketing the fares. The applicant also described the student as having been “so aggressive it was unbelievable”.

[21] Despite the account initially given by the applicant to the respondent, and repeated in the applicant’s evidence-in-chief, the student did not, at any stage, move to the back of the bus and could not, therefore, have been loudly and repeatedly making comments to the applicant while seated there. The CCVR footage shows that the student stopped and turned around after the applicant had grabbed his arm and then remained standing for a short period of time in an area well towards the front of the bus; the student then directly alighted from the bus of his own volition. When taken to the discrepancies in relation to such matters in cross-examination, the applicant’s evidence did not fare particularly well. I do not accept the applicant’s description of the student as having been so aggressive it was unbelievable. While I appreciate I have not had the benefit of a sound recording, I observe that the CCVR footage shows the student behaving in what appears to be an entirely innocuous manner following the grabbing, save perhaps for turning to make some form of comment to the applicant as he alighted from the bus.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct

[22] I am satisfied the respondent has established a case it had a valid, conduct-related reason for dismissing the applicant in circumstances where the applicant grabbed the student and dissembled about the circumstances in the discussions in the ensuing investigation.

Whether the person was notified of that reason

[23] The applicant was notified of four principal reasons for the dismissal, although it seems to me that only the combination of the first two matters referred to in the letter of termination of employment relevantly would have supported the decision made by the respondent to dismiss the applicant.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[24] The applicant was given the opportunity to respond to the allegations that related to the student. Despite the submissions by counsel for the applicant, I consider that the applicant was aware that he was being accused of being untruthful when one considers the evidence as to him being shown CCVR vision and being informed that the respondent’s managers did not accept the applicant’s description of what had occurred.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[25] The applicant was afforded to opportunity of assistance in the discussions.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[26] The dismissal related more to conduct-related issues than strictly performance related-issues. At the time of the dismissal, the applicant was on a final warning. It appears that prior to that final warning, he had been given an earlier final warning, given the applicant’s evidence as to the existence of two final warnings.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/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

[27] The respondent is a sizeable organisation. There was nothing to suggest that it would not have been able to access advice in relation to the processes it adopted in connection with the decision to dismiss the applicant.

Any other matters that Fair Work Australia considers relevant

[28] The evidence would not lead me to conclude that the dismissal of the applicant, or the processes adopted in connection with the decision to dismiss, were related to the applicant’s industrial activities in his capacity as the chief union delegate at the workplace.

Conclusion

[29] I consider the respondent had a valid reason to dismiss the applicant and I have not been satisfied that the dismissal was otherwise harsh, unjust or unreasonable when considering the combination of the applicant’s actions towards the student, the applicant’s responses to the respondent in the investigation and the fact he was on a final warning.

[30] An order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

A. Howell of Counsel for the applicant.

I MacDonald of Australian Public Transport Industrial Association of the respondent.

Hearing details:

2012.

Sydney:

September 3.

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