[2014] FWC 8679
The attached document replaces the document previously issued with the above code on
19 December 2014.
A sentence was omitted from paragraph [2], which has now been included.
Bronwyn Corless
Associate to Deputy President Hamilton
Dated: 22 December 2014
1
Fair Work Act 2009
s.394—Unfair dismissal
Steven Curtis
v
Transit Australia Pty Ltd T/A Sunshine Coast Sunbus
(U2014/12466)
DEPUTY PRESIDENT HAMILTON MELBOURNE, 19 DECEMBER 2014
Application for relief from unfair dismissal.
[1] On 11 September 2014 Mr.Steven Curtis filed an application for an unfair dismissal
remedy under s.394 of the Fair Work Act 2009 (‘the Act’).
[2] The matter was conciliated and no agreement was reached. I heard the matter on
10 December 2014. I adopt the submissions of the applicant1 that the jurisdictional matters set
out in ss394-396 and elsewhere are satisfied, and I have had regard to all the submissions and
evidence.
Decision on Unfair Dismissal
Section 387(a) - Valid Reason
[3] The employer submits that on 24 August 2014 Mr.Curtis, a bus driver, refused
carriage to a young person in breach of the ‘No Child Left Behind’ policy. This is an
important policy for the protection of children2. Mr.Gedding outlined some of the background
to the policy3.
[4] Mr.Curtis was summarily terminated by letter dated 29 August 2014. The letter of
termination alleged that Mr.Curtis refused carriage to a young person and this action was in
breach of a company policy in relation to ‘No Child Left Behind’, which Mr.Curtis had been
trained in4.
1 Exhibit C2, paragraphs 5 to 7
2 Exhibit S4, Attachment C; Exhibit C1, paragraphs 5-26; Exhibit C2, paragraph 12
3 Exhibit C1, paragraphs 5 - 26.
4 Exhibit S4, Attachment B
[2014] FWC 8679
DECISION
AUSTRALIA FairWork Commission
[2014] FWC 8679
2
[5] Mr.Cadamy, Operations Manager for Transit Australia Pty Ltd, trading as Sunshine
Coast Sunbus (Sunbus), gave evidence that the policy directions given to all drivers were:
‘NON-PAYMENT OF FARES
As per Translink Integrated Ticketing and Fares Policy Manual Section 11.1:
Passengers are not entitled to travel if they have insufficient money to purchase
a ticket, but Duty of Care and customer service considerations must prevail at
all times.
All drivers shall carry customers who do not have the fare where it is believed
that failure to do so would result in a significant risk to that person’s safety and
well being.
CHILDREN OF SCHOOL AGE MUST BE CARRIED AT ALL TIMES
Customers permitted to travel on buses in these circumstances, will not be
issued with a ticket. Should a Translink Officer intercept a customer, who has
been permitted to travel without a ticket, normal operation procedures will
apply and a warning notice may be issued.’
[6] He said that the employer has in place a procedure which requires a driver to make
immediate contact with the Controller and to report the incident and await instruction on how
to deal with an incident if the driver has any issues with this policy5.
[7] His evidence is consistent with that given by Mr.Adsett, who provided refresher
training for bus drivers last year. He gave evidence that the refresher training material given
to employees such as Mr.Curtis includes a statement:
Without fail, you should never leave a child behind on any service
Do not deny passage if there is no money to pay the fare. This also goes for any
passenger at night - safety of the community is the priority (unless you fear for
your own safety or that of other pax)
What do you do if there is a problem or if you are unsure?
Contact Ops
Ask for assistance
Remember that your role is not a Revenue Officer: you are’6
[8] Mr.Adsett gave evidence that after going through this information on the powerpoint
presentation including the above, Mr.Curtis questioned him about this stating that ‘I’ll let
them on but I don’t think it’s the right thing to do’, and later expressed confusion about the
effect on fare evasion7. Mr.Adsett gave evidence that ‘old school’ drivers find it difficult to
allow fare evaders to get away with breaking the law because it is unfair to those passengers
5 Exhibit S4, paragraphs 8-10, Attachment C
6 Exhibit C3, Attachment HA2, p.81
7 Exhibit C3, paragraphs 19-23
[2014] FWC 8679
3
that pay their fare, and that historically the collection of fares has always been an important
component of the work performed by a bus driver8.
[9] Mr.Curtis denied that he was such an ‘old school’ driver. However, his views as
described by his own statements suggest that he did have reservations about the ‘No Child
Left Behind’ policy. When he was asked about this in cross examination he was somewhat
evasive and unconvincing in his replies9.
[10] For whatever reason, Mr.Curtis seemed to show a degree of lack of commitment to the
company’s attempts to secure compliance from him with its policies. He was issued with a
‘Letter of Expectation’ dated 17 September 201410. It is clear that the employer sought in its
letter to advise Mr.Curtis to improve behaviour and performance to meet ‘the standards
expected’ as it was entitled to do. Mr.Curtis consistently refused to indicate knowledge and
acceptance of this and was somewhat evasive in his evidence, and again was unconvincing11.
This is the context in which he was terminated for breaching a policy about which he had
clearly said that he had some reservations.
[11] He also stated that he was in no doubt as to what the company’s policy was in relation
to the travel policies for persons of school age, and knew what the company expected of
him12. Mr.Curtis clearly had reason to believe that the male person could be 17-18 and
therefore of school age. This was in fact his own evidence. Mr.Curtis gave evidence that the
male person appeared to be over the age of 17 years and possibly as old as 21 years13. He was
in his own words uncertain as to age, and therefore uncertain as to whether or not the young
person was of school age within the policy. He did not deny that the company procedure was
that in such circumstances he should contact control on his radio and obtain instructions. He
said that:
‘If you’re looking at policies in that sheet you showed me before, yes. But when
someone is standing next to me with a skateboard and they’re starting to stare at me
I... it goes very quick’14
[12] This may be a statement that it all happened quickly, and therefore the policy was
accidentally breached. In any event, in my view Mr.Curtis either knew that the male person
was of school age, or was uncertain. He did not claim that he was unaware of company policy
to contact control and obtain instructions when uncertain about the policy. The policy is
clearly expressed to apply to ‘children of school age’, and both Mr.Curtis and Mr.Adsett
concede that school age includes persons who are 17-18. I had the opportunity of observing
Mr.Curtis giving evidence and have already found that some of his evidence was
unconvincing. I do not accept the account given by Mr.Curtis of the conversation that
followed, which is remarkably specific on the words used by each side. Even if it is
approximately a true account Mr.Curtis still breached the ‘No Child Left Behind’ policy on
his own evidence. There was a valid reason for terminating his employment.
8 Exhibit C3, paragraph 25
9 PN800-828
10 Exhibit S4, Attachment F
11 PN955-965
12 PN939-940
13 Exhibit C4, paragraph 31
14 PN927-928
[2014] FWC 8679
4
[13] I have however given little or no weight to what the employer described as
‘complaints’ about Mr.Curtis’ conduct15. None led to any warnings. Indeed many of the
complaints appeared to be quite baseless and it is unclear to me why they were tendered. The
applicant submitted that they were tendered simply for their prejudicial effect.
[14] The TWU submitted that the company ‘No Child Left Behind’ policy was neither
lawful nor reasonable. In my view it is both lawful and reasonable, having regard to the Full
Bench decision in Woolworths Limited v. Cameron Brown16 and other authorities. There is
nothing in Government Guiding Principles, Code of Conduct, or regulations which prevent
this employer implementing its stated ‘No Child Left Behind’ policy.
[15] This may well be an unusual decision, with little or no relevance to other matters. It is
in any event confined to the limited material before me.
Section 387(b) - Notification of the reason
[16] Mr.Curtis was notified of the valid reason in the letter of termination.
Section 387(c) - Opportunity to respond to any reason
[17] I am satisfied that Mr.Curtis was given the opportunity to respond to any reason
related to his capacity or conduct within s.387(c). In my view the fact that Mr.Curtis was not
given an opportunity to put a view to the Chief Operating Officer is on the material before me
not a denial of the opportunity to put any reason. It was in the circumstances reasonable for
the employer to act as it did through various line managers.
Section 387(d) - Support person
[18] There was no unreasonable refusal to allow a support person to be present.
Section 387(e) - Warnings about unsatisfactory performance
[19]
As discussed earlier, the employer tendered written copies of complaints made about
Mr.Curtis17. None led to any warnings. Indeed many of the complaints appeared to be quite
baseless and it is unclear to me why they were tendered. The applicant submitted that they
were tendered simply for their prejudicial effect.
Section 387(f),(g) - Size of business, human resources specialists
[20] Appropriate standards of conduct should be expected of the employer having regard to
the size of business, and the presence in the business of human resources specialists.
15 Exhibit S4, Attachment E
16 Full Bench, 26 September 2005, PR963023
17 Exhibit S4, Attachment E
[2014] FWC 8679
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Section 387(h) - Any other matters
[21] I have taken into account all the material put to me. Mr.Curtis was asked if he ‘would
be able to get a job’ with the other bus service in the area, Buslink. He said ‘Probably, yes, I
could’18. While the impact on him was to a degree harsh, this concession mitigates this to
some extent.
Conclusion
[22] In my view Mr.Curtis was accorded a ‘fair go all round’. His termination was not
harsh, unjust or unreasonable. I dismiss the matter19.
DEPUTY PRESIDENT
Appearances:
Mr A Carter for the applicant
Mr I MacDonald for the respondent
Hearing details:
2014
Brisbane
10 December
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