[2012] FWA 9617

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Abbas Nasrieh
v
ComfortDelGro Cabcharge Pty Ltd T/A Hillsbus
(U2012/9053)

DEPUTY PRESIDENT BOOTH

SYDNEY, 12 NOVEMBER 2012

Termination of employment - unfair dismissal.

[1] In this matter the applicant, Mr Abbas Nasrieh, asks the Tribunal to exercise its discretion under s.394 of the Fair Work Act 2009 (the Act) to grant a remedy for unfair dismissal. The remedy sought in this matter is reinstatement.

[2] The application was made on 9 July 2012 and a telephone conciliation was conducted on 20 July 2012. The matter was not resolved at conciliation and was listed for hearing for three days on 8-10 October 2012, later reduced to one day, on 10 October 2012. At the request of the respondent due to the unavailability of a key witness, the matter was rescheduled until 29 October and again, for the same reason, to 5 November when the matter came before me. Submissions and witness statements were received pursuant to directions issued by Fair Work Australia (FWA) and the parties prepared an agreed Statement of Facts and Issues.

[3] Permission was granted for Mr Nasrieh to be represented by Mr Miles of Counsel and for ComfortDelGro Cabcharge Pty Ltd T/A Hillsbus (Hillsbus) to be represented by Mr Marshall with Mr Brett of Fisher Cartwright Berriman Pty Limited.

Background

[4] Operating under the brand of Hillsbus, ComfortDelGro Cabcharge Pty Ltd provides bus services for the areas of Blacktown, Rouse Hill, Castle Hill, Dural and Parramatta. ComfortDelGro Cabcharge Pty Ltd also operates under the brands of Westbus and Hunter Valley Buses. ComfortDelGro Cabcharge Pty Ltd is the largest private bus operator in NSW with a fleet of 1,176 buses and 1,450 employees (as at June 2011). 1 Hillsbus drivers start and finish work from the depots from which buses are operated. Mr Nasrieh is a bus driver and he commenced work with the respondent on 1 September 2003. For the duration of his employment he started and finished work at the Dural Depot where there are 190 drivers. He reported to Mr Jordan, Manager Dural Depot Region 4. He was dismissed on 29 June 2012 without notice on the grounds of conduct that was said to constitute a serious safety breach in contravention of the respondent’s Use of Mobile Phones (Buses) policy. The policy provides, inter alia, “Any breach of this policy will be considered a serious safety breach which will result in summary dismissal.”2 (my emphasis)

[5] The dismissal followed his admission that he had used his mobile phone twice on 28 June 2012 while in control of a bus.

[6] Mr Nasrieh does not contest the facts of the behaviour complained of nor that he was in breach of the Hillsbus policy not to use a mobile phone while in control of a bus. However, he claims that there were mitigating circumstances that the respondent failed to consider in coming to its decision.

[7] The mitigating circumstances were essentially twofold:

The relevant statutory framework

[8] The Tribunal exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 Unfair Dismissal of the Act. In this matter there is no contest that Mr Nasrieh is a person who is protected from unfair dismissal pursuant to s.382 of the Act and I must apply ss.385 - 387 of the Act, which read as follows:

[9] I must apply my mind as to whether Mr Nasrieh was unfairly dismissed. There is no dispute that Mr Nasrieh was dismissed so s.385(a) of the Act is satisfied. Hillsbus is not a small employer and, therefore, s.385(c) is not relevant. There is no contention that this is a case of genuine redundancy so s.385(d) does not apply. Therefore, in determining whether Mr Nasrieh was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable.

[10] If I find that Mr Nasrieh was unfairly dismissed I then must apply the provisions of Division 4 of the Act in order to determine the appropriate remedy as between reinstatement or the payment of compensation.

[11] Guidance as to the meaning of the expression “harsh, unjust and unreasonable” can be found in the decision of Sheppard and Heery JJ in Bostik (Australia) Pty Ltd v Dimitrja Gorgevski 3 where their Honours said, in relation to the wording of Clause 9 of the Manufacturing Grocers Award 1985:

[12] Also of relevance is that the expression is not intended to be a composite, rather each word in the expression stands alone. In Byrne (and Frew) v Australian Airlines Pty Ltd, McHugh and Gummow JJ said: 4

Consideration

[13] In considering whether Mr Nasrieh’s dismissal was harsh, unjust or unreasonable I will deal with each of the matters I am required to consider in turn.

[14] In this case it is Mr Nasrieh’s conduct on one occasion that is at the heart of the matter. His past conduct was not put forward as the reason for his dismissal although it appeared to play a part in Hillsbus declining to review their decision and I have taken it into account in coming to my decision.

[15] Hillsbus submitted that there were four occasions prior to the occasion at issue where Mr Nasrieh had been observed using his mobile phone while in control of a bus. However, three of these were denied by Mr Nasrieh. In the first instance Mr Nasrieh was the subject of a customer complaint regarding a phone call that ironically came from the depot. In the second instance he was observed by Mr Church, who was at the time the Chair of the Occupational Health & Safety Committee, with his hand up to his left ear holding what appeared to Mr Church to be a mobile phone. Mr Nasrieh denies this instance. I conclude that it is more likely than not that both of these instances took place. There is no credible evidence of the third and fourth instances, which are denied. One relates to a call and another to texting, both of which are reported by the same person, who was not called as a witness.

[16] His capacity is not in question. Indeed his immediate supervisor Mr Jordan wrote to the General Manager Sydney of Hillsbus seeking latitude in the decision to dismiss him. He said:

Mr Davis, Operations Manager Dural Depot Region 4, gave evidence that he agreed with Mr Jordan.

[17] In considering the conduct of Mr Nasrieh on 28 June 2012 it is necessary to do so in two stages. Firstly, I will come to a conclusion in regard to Mr Nasrieh’s conduct, and secondly, consider whether this conduct constituted a valid reason for the dismissal.

Mr Nasrieh’s conduct

[18] Mr Nasrieh admits that he used his mobile phone twice on 28 June 2012 while in control of a bus. The evidence before me from the Hillsbus CCTV revealed that the first occasion was at 12.48.02. The 621 bus had come to a stop in the bus lane while waiting at a red traffic light on the M2. He secured the hand brake with his right hand and with his left hand he picked up his mobile phone, pressed on the area of the key pad of the phone with his right hand, transferred the mobile phone to his right hand and put it up to his right ear (he shifts the phone from right to left and back again during the course of the call). His evidence was that he made a call to his wife, the call was not answered and he ended the call. At 12.48. 43 he is seen to remove the phone from his right ear and again press on the area of the keypad of the phone, transferring the mobile phone from his right hand to his left hand and placing it back on his left hand side on a shelf under the ticket dispenser at 12.48.59. The time that elapsed was 57 seconds. He is seen to place his right hand under his chin as if in contemplation and then he released the hand brake with his right hand and mobilised the bus.

[19] While the bus was in motion, he says travelling on Pennant Hills Road, at 12.50.19 pm he is seen to pick up his mobile phone with his left hand. His evidence is that because he could see that the call was coming from his wife’s phone he answered the call. The effect of his evidence is that he did this because he did not want the call to go unanswered and cause her anxiety. He further gave evidence that he said to his wife in Persian, “I can’t talk right now, I’ll call you back.” 6 At 12.50.44 pm he replaced the phone. The time that elapsed was 25 seconds.

[20] This evidence is uncontested. Mr Nasrieh admitted to this conduct on the first occasion it was raised with him by his direct supervisor Mr Jordon. The effect of his evidence is that he has apologised for the conduct, is remorseful, has expressed contrition and is determined never to repeat the conduct. I found Mr Nasrieh’s demeanour as a witness to be consistent with this. He gave his evidence with sincerity and candour and I believe that he genuinely regrets this conduct and is ashamed of himself.

[21] This conduct came to the attention of Hillsbus because it was observed by Mr Grant, a police officer, who contacted Hillsbus and asked that the driver be spoken to. 7

[22] I conclude that he did indeed behave in the manner complained of. He used his mobile phone twice on 28 June 2012 while in control of a bus.

Valid reason for dismissal

[23] Guidance as to the meaning of the term ‘valid reason” is provided by Selvachandran v Petron Plastics Pty Ltd 8. In that decision of the Industrial Relations Court of Australia Northrop J said:

[24] Section 170DE(1) of the Industrial Relations Act 1988 was in broadly similar terms to the corresponding provisions of the current Act.

The law in NSW

[25] At the relevant time (28 June 2012) the law in NSW in relation to use of mobile phones by drivers was contained in regulations as follows:

[26] The law was clarified on 1 November 2012 pursuant to the Road Transport (Safety Traffic Management) Act 1999 and Rule 300 now reads:

use, in relation to a mobile phone, includes the following:

(a)  holding the phone to, or near, the ear (whether or not engaged in a phone call),

(b)  writing, sending or reading a text message on the phone,

(c)  turning the phone on or off,

(d)  operating any other function of the phone.” 10

[27] The relevance of noting the change to the law is that it reflects, and/or is intended to promote, a change in community behaviour in relation to mobile phone use while driving. It appears that community standards in relation to the use of mobile phones while driving are evolving.

Hillsbus policy

[28] In June 2012 the Hillsbus policy in relation to mobile phone use read as follows:

[29] There is no question that Mr Nasrieh was in breach of this policy when he used his mobile phone twice on 28 June 2012.

[30] This policy was a new policy released in May 2012. There was limited evidence before me of the background to the change in policy by Hillsbus towards mobile phone use while in control of a bus but from the evidence of Mr Bomardiere. I conclude that Hillsbus were seeking to improve compliance with their existing policy that prohibited the use of hand held mobile phones by introducing the new policy in May 2012. Further, that Hillsbus was concerned to enforce the policy in order that their drivers complied with the laws of NSW, the safety of drivers, passengers and other road users was not compromised and to conform with industry practice.

[31] The policy that applied before the change in May 2012 was contained in the Bus Drivers Handbook. The handbook is divided into 5 main sections. Section 1 is titled Code of Conduct. Section 3 is titled Serious Misconduct. Section 4 is titled Welfare and Safety. It is in this section at subsection 4.8 titled Passenger Safety that paragraph 4.8.9 titled Mobile Phones is found. It reads as follows:

[32] It was Mr Davis’s evidence that the Safety Alert dated January 2012 and placed on the notice board in the radio room was based on this policy.

[33] In May 2012 two changes were made, one involved the use of Bluetooth devices and the other was a change to the consequence of using the mobile phone. In the January 2012 Safety Alert (notably not the policy) the consequence was identified as follows:

[34] After May 2012 the consequence found in the policy was identified as follows:

[35] It is clear that Mr Nasrieh was in breach of both policies. I will address the change of policy further when I consider other matters that may be relevant.

[36] Given that the conduct engaged in by Mr Nasrieh is illegal, that public policy is being strengthened in order to enhance compliance with the law and it is a breach of the policy of the employer that was in place before and after May 2012 I find that Mr Nasrieh’s conduct in using his mobile phone whilst in control of a bus constituted a valid reason for his dismissal.

[37] However on the evidence before me I cannot conclude that the conduct meets the higher threshold of serious misconduct. Regulation 1.07 of the Fair Work Regulations 2009 defines serious misconduct as follows:

[38] In submissions Mr Marshall took me to Regulation 1.07(2)(b)(i) being conduct that causes serious and imminent risk to the health or safety of a person.

[39] Mr Bomariere gave evidence that the first instance of Mr Nasrieh’s use of his mobile phone was low risk. No other evidence was given about the gravity of the risk and to put Mr Nasrieh’s actions on 28 June 2012 into the category of conduct that causes serious and imminent risk to the health or safety of a person, on the available evidence, is going too far in my opinion.

[40] I find that Mr Nasrieh was notified of the reason for the dismissal. I find that there is no contribution to a finding of unfair dismissal from consideration of this factor.

[41] The new policy that Mr Nasrieh breached was described by a number of witnesses as a “zero tolerance” policy in the sense that regardless of the circumstances surrounding the breach of the policy, the policy itself gave no alternative than dismissal without notice. The evidence before me is that when Mr Jordon met with Mr Nasrieh on 29 June 2012 he believed and conveyed this belief to Mr Nasrieh that there was no alternative. Therefore, no real opportunity was given to “respond to any reason related to the capacity or conduct of the person”.

[42] The CDC Bus Drivers’ Handbook contains a section on serious misconduct in which, at 3.7, it says:

[43] Mr Nasrieh’s uncontested evidence is that he sought to be considered for this alternative, however, was told by Mr Jordan that this provision was overridden by the new policy. Mr Bomardiere’s evidence is that he gave no consideration to applying that policy when he considered Mr Nasrieh’s appeal and did not interview Mr Nasrieh in relation to his appeal.

[44] Although Mr Nasrieh availed himself of an appeal mechanism, it was submitted by Mr Miles on behalf of Mr Nasrieh that this was not a genuine review. Mr Bomardiere gave evidence of the process followed to consider the appeal and this revealed that there was no independent investigation of the grounds of the appeal but rather the original decision maker was consulted and a decision made on this basis only.

[45] Consequently none of what Mr Nasrieh believed were the extenuating circumstances surrounding what was described as his error of judgement were investigated and it is Mr Miles’s submission that they were not seriously considered. I agree with that conclusion.

[46] I find that Mr Nasrieh was not given a genuine opportunity to respond to the reasons for his dismissal and this contributes to a finding that the dismissal was harsh.

[47] Mr Nasrieh was afforded the opportunity to have a support person present during his meeting with Mr Jordan on 29 June 2012 and I find that there was no unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.

[48] I find that there is no contribution to a finding of unfair dismissal from consideration of this factor.

[49] Mr Nasrieh was dismissed on the grounds of conduct that constituted a serious safety breach in contravention of the respondent’s Use of Mobile Phones (Buses) policy. There was no contribution to the reason for dismissal related to Mr Nasrieh’s performance. In fact, the effect of the evidence was that he was a valued employee. Although unsatisfactory performance is not relied upon by Hillsbus acknowledgement of his good performance does weigh in favour of a conclusion that the dismissal was harsh.

[50] Hillsbus is a large employer. I find that this is not a relevant consideration in my determination of this matter.

[51] Hillsbus has a dedicated Human Resource capability. I find that this is not a relevant consideration in my determination of this matter.

Personal circumstances

[52] Mr Nasrieh gave credible evidence about the personal circumstances surrounding his breach of the policy that gave rise to his dismissal. He stated that his wife suffers from depression and correspondence from her treating doctor and psychologist was provided to the Tribunal. Hillsbus did not seek to contest this. Mr Nasrieh’s evidence was that on the morning in question she had asked him not to go to work. He declined because he believed that it was too late to replace him on his shift and he ought to attend for work. He said that he was concerned for his wife’s safety on that day based on the conversation he had with her before he left. He described his use of the mobile phone as due to an emergency.

[53] Mr Marshall for Hillsbus contested the description of his reason for using the mobile phone as addressing an emergency. He asked Mr Nasrieh why he did not call his wife earlier in his shift on his morning break or lunch break. Mr Nasrieh could not explain why he had failed to contact his wife when he had free time to do so and he could not explain why he felt compelled to do so later in the day while driving the bus. Mr Nasrieh’s evidence about the timing of his motivation appeared frank and he seemed genuinely perplexed about his own feelings and behaviour.

[54] I accept that Mr Nasrieh was anxious and worried about his wife and that he was overwhelmed in the moment that he made the call. This was, as his Counsel described it, an error of judgement. I regard his ready admission of wrong doing and his remorse as counting in his favour.

Hillsbus policy

[55] When a company policy, particularly one with such serious consequences of non-compliance, is introduced, the communication of the change is paramount. The evidence before me was that Hillsbus intended to provide each bus driver with a copy of the new policy by appending it to their payslips. In the event this did not occur and instead, at least at the Dural Depot, the dissemination mode chosen was to clip the new policy to the front of each bus driver’s locker along with their daily work sheets. Mr Nasrieh’s evidence, which I believe, was that he did not see the new policy on his locker or anywhere else, had never spoken to anyone about it and was not aware of it. In his evidence, Mr Bomardiere, the Human Resources and Safety Manager, conceded that he could not be certain that the policy had been clipped to every locker, there was no provision for bus drivers to sign off that they had read and understood the new policy, no meetings were held to explain the new policy and no communications or education program was undertaken to announce the new policy. The evidence of Mr Nasrieh and Mr Jordan was that handover meetings did not take place on shift changes at the Dural Depot. In the future Hillsbus would be well advised to adopt a more thoughtful and rigorous approach to employee communications.

[56] The new policy appeared to be the culmination of a transition in attitude towards mobile phone use from “care to be taken” to “prohibition”. In 2009, when Mr Nasrieh was the subject of a customer complaint he signed off on a document that stated “Driver has been advised to make sure he is pulled up at a safe location before taking phone calls”. 15 The notice board in the radio room at the depot had, at the time that Mr Nasrieh was still employed, a Safety Alert that pertained to the old policy not the new policy. The consequence contained in the Safety Alert was not actually contained in the pre-May 2012 policy. The pre-May 2012 policy was located in a section of the handbook other than Code of Conduct or Serious Misconduct. The handbook itself was something that at best could be said to have been in Mr Nasrieh’s possession upon engagement in 2003.

[57] The result of all this was that there was ambiguity surrounding the mobile phone policy and its application at the time of Mr Nasrieh’s dismissal.

[58] Evidence was given of the application by Hillsbus of their policy before and after Mr Nasrieh’s termination. Prior to 29 June, in 2012, there was evidence of two instances of a bus driver being dismissed for contravening the policy and one resignation. One dismissal was reversed upon management review. Between 29 June 2012 and the date of hearing there were 3 other bus drivers dismissed. Each instance inevitably turns on its own facts and while I have considered this evidence it has not influenced my decision one way or the other.

Conclusion

[59] Taking all of the above into account I find that although Mr Nasrieh’s conduct constituted a valid reason for dismissal, in the circumstances the dismissal was harsh and therefore unfair.

Remedy

[60] In consequence I must apply the provisions of Division 4 of the Act in order to determine the appropriate remedy as between reinstatement or the payment of compensation.

[61] Mr Nasrieh seeks reinstatement. Mr Miles on his behalf submits that if I find that any penalty is warranted for Mr Nasrieh’s conduct I should apply the provisions of the Bus Drivers handbook and reinstate him with deduction of 10 days pay. He further submits that if I find that reinstatement is not appropriate I should order 6 months pay in compensation.

[62] Mr Marshall, on the other hand, submits that while Mr Nasrieh's application should be dismissed, if I find that the dismissal is unfair, rather than reinstatement I should order no more than four weeks pay as compensation because this is what Mr Nasrieh would have been entitled to if his employment had been terminated other than for serious misconduct.

[63] Hillsbus does not submit that reinstatement of Mr Nasrieh would be impractical because the essential trust and working relationship between Mr Nasrieh and Hillsbus has broken down or for any other reason. Mr Jordan’s evidence is that there is always the “odd vacancy” 16 at the Dural Depot and the effect of his evidence is that Mr Nasrieh would be accepted back if the Tribunal saw fit to reinstate him. Mr Nasrieh continues to hold the relevant licences required to be a bus driver. I am confident that Mr Nasrieh has learnt a hard lesson and if reinstated would not repeat this behaviour.

[64] In the circumstances, I believe that the appropriate remedy is reinstatement at the Dural Depot from 19 November 2012 with continuity of service. However, I am not willing to recompense Mr Nasrieh for his remuneration forgone from the time of his dismissal. I find that Mr Nasrieh contributed to his own circumstances and must bear both responsibility and adverse consequences. This will be a significant burden for Mr Nasrieh.

[65] No other employees should conclude from this decision that using a mobile phone while driving a bus is acceptable. It is not. It is against the law and in contravention of company policy for a reason. The safety of employees, passengers and other road users must be the first priority of the employer and employees alike. This case turned on its own particular facts.

[66] An order will issue reflecting this decision.

DEPUTY PRESIDENT

Appearances:

B Miles, of Counsel, for Mr Abbas Nasrieh

R Marshall and T Brett, Fisher Cartwright Berriman Pty Limited, for ComfortDelGro Cabcharge Pty Ltd T/A Hillsbus

Hearing details:

2012.

Sydney:

5 November.

 1   “Company Profile”, ComfortDelGro Cabcharge, www.cdcbus.com.au/Company-Profile, accessed on 7/11/12

 2   “Use of Mobile Phones (Buses)”, ComfortDelGro Cabcharge

 3   [1992] FCA 209

 4   [1995] HCA 24 at 128

 5   Letter from Mr Keith Jordan (Depot Manager) to Mr Abbas Nasrieh, 29 July 2012

 6   Transcript PN368

 7   Email from Keith Jordan to Simon Bosnjak, 6 July 2012

 8   [1995] IRCA 333

 9   Rule 300, Road Rules 2008 (NSW), Historical Version for 11 May 2012 to 30 June 2012

 10   Rule 300, Road Rules 2008 (NSW), Historical Version for 1 July 2012 to 31 October 2012

 11   “Use of Mobile Phones (Buses)”, ComfortDelGro Cabcharge

 12   “Driver Guide & Conditions of Employment” - Version 4 - 9 June 2011

 13   Safety Alert No 57, January 2012

 14   “Use of Mobile Phones (Buses)”, ComfortDelGro Cabcharge

 15   Customer Service Complaint, 26 February 2009

 16   Transcript PN680

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