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…

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.

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Details

Case: [2012] FWA 7622
Decision Date: 21 SEPTEMBER 2012

CaseChat Overview and Summary

William Callander, the applicant, filed an application against Busways Blacktown Pty Ltd, the respondent, seeking a remedy for unfair dismissal. The case was heard in the Federal Circuit Court of Australia. The central issue was whether Mr Callander's dismissal was unjust under the Fair Work Act 2009. Mr Callander argued that his dismissal was unfair because it was based on his engagement in protected industrial action and his refusal to perform additional work outside his contractual obligations.

The court needed to determine whether the dismissal was a result of the protected industrial action and whether it was a case of 'genuine redundancy' as claimed by the employer. The respondent argued that the dismissal was due to operational requirements and not related to the protected action. The court examined the circumstances surrounding Mr Callander's dismissal, including the employer's justification for redundancy and the nature of his employment.

The Federal Circuit Court found that the respondent had demonstrated that the dismissal was due to genuine operational reasons and not because of the protected industrial action. The court held that the employer had met the burden of proving redundancy, and there was no evidence to suggest that the dismissal was unfair. Consequently, the application for an unfair dismissal remedy was dismissed. The court's decision was based on the employer's ability to show that the dismissal was due to genuine operational reasons and not related to the protected action. As a result, Mr Callander's application was unsuccessful, and no remedy was granted.

Orders