| [2017] FWC 6167 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Thomas
v
ACT Government - Transport Canberra and City Services T/A ACTION
(U2017/1027)
DEPUTY PRESIDENT KOVACIC |
CANBERRA, 22 NOVEMBER 2017 |
Application for relief from unfair dismissal - harsh, unjust or unreasonable – dismissal found to be harsh; reinstatement and continuity of service ordered.
[1] Mr Christopher Thomas (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 2 February 2017 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the ACT Government – Transport Canberra and City Services T/A ACTION (ACTION – the Respondent) on 18 November 2016 was unfair.
[1] ACTION in its Form F3 – Employer Response to Unfair Dismissal Application raised a jurisdictional objection contending that the application had been lodged out of time. In a decision handed down on 11 July 2017 1 the Commission found that there were exceptional circumstances warranting the granting of further period for the making of the application and extended the timeframe to 2 February 2017.
[2] In subsequent developments the matter was listed for mention and directions on 17 July 2017, with the matter heard substantively on 12 October 2017. At the hearing, Mr Philip Boncardo of Counsel appeared with permission for Mr Thomas, while Mr Justin Karcher of the ACT Government Solicitor appeared for ACTION. Mr Thomas gave evidence on his own behalf, while Mr Malcolm Howard, ACTION’s North Region Operations Manager; Mr Jon Brosolo, Manager, Industrial Relations Strategy in the Office of the Director of Public Transport Operations; and Mr Ian Hocking, acting Senior Manager, Human Resources, gave evidence for the Respondent.
[3] For the reasons outlined below, I have found that Mr Thomas’ dismissal was harsh. As to remedy, I order that Mr Thomas be reinstated to his former role and that the continuity of his employment be maintained. However, in view of Mr Thomas’ conduct I do not consider an order for payment of lost remuneration to be appropriate.
[4] Mr Thomas commenced employment with ACTION as a bus driver on 27 March 2008.
[5] On 11 May 2016 Mr Thomas while performing bus driving duties was involved in an incident with the male driver of a utility which involved a physical altercation between the two. The situation arose when the bus Mr Thomas was driving exited a bus stop and a vehicle which he had seen in his mirrors tooted him. Mr Thomas also saw the driver of the other vehicle gesture with his middle finger, with Mr Thomas responding in similar fashion. As Mr Thomas went to leave a later bus stop, the other driver pulled up beside his bus and said words to the effect “You fat c..t, I’ve got it on camera – you giving me the finger. You guys think you own the road; I’m going to report you and you’re going to lose your job.” 2 Mr Thomas responded along the lines of “I’m not interested in what you think. If you want to make a complaint you need to call ACTION.”3As Mr Thomas moved forward the other vehicle drove in front of his bus and stopped suddenly requiring Mr Thomas to brake suddenly to avoid a collision. Mr Thomas subsequently exited the bus and proceeded to the front of the other vehicle and attempted to take a photo of the vehicle with his mobile phone. A physical altercation ensued, with the bulk of the altercation captured on the bus’s CCTV camera. The altercation is described in greater detail below.
[6] Mr Thomas was suspended with pay on 13 May 2016. The letter stated among other things that:
“I am aware ACT Police are reviewing the alleged incident. An independent workplace investigation will also be requested. At the conclusion of the investigation, I will be provided with a written report on the findings. The investigation process provides you with an opportunity to respond to the allegations and entitles you to have a support person present during any interview.” 4
[7] On 29 July 2016 Mr Duncan Edghill, the Deputy Director-General of the ACT Government’s Transport Canberra and City Services Directorate, wrote 5 to Mr Thomas advising that he had determined that the incident warranted formal investigation in accordance with Section H – Workplace Behaviours of the ACTION Enterprise Agreement 2013-20176 (the Agreement).
[8] The Investigation Report was finalised on 23 September 2016 and concluded as follows:
“On the basis of the information provided, there is sufficient evidence to conclude, on the balance of probabilities that on 11 May 2016, about 2:45 pm on, whilst on duty and in uniform driving an Action bus along Galmarra Street, Ngunnawal, Mr Thomas behaved inappropriately to another driver and member of the public, when he:
• extended his finger to the other driver in a rude gesture;
• got off the bus to photograph the other vehicle when it stopped in front of him;
• punched the other driver after he knocked his mobile phone from his hands; and
• broke the driver’s side mirror off the other vehicle.
In determining whether this behaviour constitutes misconduct (as defined in clause H6.5 of the Action Enterprise Agreement 2013-2017) you may wish to consider whether Mr Thomas failed in his obligations under Section 9 of the Public Sector Management Act 1994, in particular:
A public employee shall, in performing his or her duties:
a) exercise reasonable care and skill;
d) treat members of the public and other public employees with courtesy and sensitivity to their rights, duties and aspirations; and
f) comply with this ACT, the management standards and all other Territory laws;
Additionally, you may consider whether Mr Thomas’ conduct has brought, or is likely to bring ACTION, Transport Canberra and City Services or the ACT Public Service into disrepute.” 7
[9] The analysis section of the Investigation Report included the following comments in respect of the incident:
• it would appear that Mr Thomas had a ‘reasonable excuse’ [as per the Road Transport (Public Passenger Services) Regulation 2002 (ACT)] to leave the driver’s seat of the bus as the other driver claimed that Mr Thomas had hit his vehicle and he was obligated to exchange details with the other driver;
• Mr Thomas made no attempt to view either the front of the bus or the rear of the other vehicle, instead walking directly to the front of the other vehicle and proceeding to attempt to take photographs of the vehicle’s registration;
• in doing so Mr Thomas appears to have agitated the other driver resulting in the situation escalating into a violent altercation;
• Mr Thomas’ version of the incident was not supported by the CCTV footage;
• it appeared that Mr Thomas’ actions of bumping into the other driver escalated an already heightened situation, resulting in the other driver knocking Mr Thomas’ mobile phone out of his hands with Mr Thomas immediately attempting to strike the other driver with two blows;
• the incident resulted in significant injury to Mr Thomas;
• the other driver clearly behaved inappropriately;
• Mr Thomas was not faultless in the incident and at no time did he attempt to de-escalate the situation, adding that Mr Thomas’ behaviour continually escalated the situation from the initial rude hand gesture to the damage of the other driver’s property; and
• it was inappropriate of Mr Thomas to retaliate in anger or rage when confronted by a member of the public.
[10] On 6 October 2016 Mr Edghill wrote to Mr Thomas providing notice of his proposed disciplinary action. The letter included the following:
“Findings
The following allegations were investigated:
...
I have determined that these allegations are proven on the balance of probabilities and constitute misconduct under Clause H6.5 of the Agreement.
This conduct breaches:
Section 9 of the Public Sector Management Act 1994, specifically:
A public employee shall, in performing his or her duties:
a) Exercise reasonable care and skill;
d) treat members of the public and other public employees with courtesy and sensitivity to their rights, duties and aspirations; and
h) comply with this ACT, the management standards and all other Territory laws, (particularly the ACT Road Transport (Public Passenger Services) Regulations 2000) and;
i) comply with any lawful and reasonable direction given by a person having authority to give the direction, (particularly the ACTION Bus Drivers Handbook).
I also consider your behaviour is likely to bring the directorate or the ACTPS into disrepute as per section H6.5 (b) of the Agreement.
I also find your behaviour breaches the Transport Canberra and City Services (TCCS) Code of Conduct, which also incorporates the ACT Public Service (ACTPS) Code of Conduct. This includes your obligations to:
• Act with Integrity;
• Be Respectful, including treating all people with courtesy and honesty and;
• Be Professional, by acting professionally and in a manner that builds the positive reputation of TCCS. This includes performing official duties with skill, care and diligence, performing your role in a fair and unbiased way, dealing with all individuals and groups fairly, effectively and impartially and maintaining professional relationships with colleagues, customers and the public.
Discipline Action
In respect of the findings of the substantiated misconduct I propose to terminate your employment.
…
Right of Reply
You may provide a written response to me within fourteen calendar days of receiving this letter addressing my findings of misconduct and proposed disciplinary action. This will be considered before a final decision is made.” 8
[11] Mr Thomas after being granted an extension of time responded on 15 November 2016 stating inter alia that:
“I admit the allegations of ‘extended your finger to the other driver in a rude gesture’ and ‘broke the driver’s side mirror off other vehicle’ and acknowledge that my conduct ought result in some form of disciplinary action less than termination of employment.
In relation to the allegations ‘got off the bus to photograph the other vehicle when it stopped in front of you’ and ‘punched the other driver after he knocked your mobile phone from your hands’, I believe that ACTION has consistently represented these allegations out of context and not shown this to be a breach of my obligations as a public employee.
After considering the allegations and the consequent proposed disciplinary action, I suggest that the recommendation to terminate my employment is excessive. I respectfully request that the proposed action of terminating my employment be reconsidered and that a more appropriate disciplinary action be implemented.” 9
[12] Mr Edghill wrote to Mr Thomas on 17 November 2016 10 advising that he remained of the view that termination of his employment was an appropriate action and that Mr Thomas’ employment would therefore be terminated with effect from the close of business on 18 November 2016.
[13] Mr Thomas submitted that the issues for determination in this case were whether his dismissal was harsh, unjust or unreasonable and, if so, what remedy the Commission should grant. Mr Thomas further submitted that the reasons relied upon by ACTION to justify his dismissal did not provide a sound, defensible or well-founded reason for dismissal and that having regard to the circumstances in which the conduct occurred, his past good conduct and personal circumstances that dismissal was too harsh a consequence. As to remedy, Mr Thomas contended that the Commission should order reinstatement and also make orders maintaining the continuity of his service with ACTION and for lost remuneration.
[14] At the hearing, Mr Thomas submitted among other things that:
• the incident of 11 May 2016 was an extraordinary incident in which he was the victim;
• he had not been charged in respect of the incident, whereas the Police appeared to have formed the view that the other driver had instigated the incident and engaged in criminal conduct;
• while he could be criticised for ‘flipping the bird’ (i.e. responding to the other driver’s gesture of raising his middle finger by returning the gesture) it did not constitute a valid reason for his dismissal;
• he decision to exit the bus was premised on his view that he was obliged to exchange details with the other driver;
• to say that he was in any way responsible for what occurred was an exercise in victim blaming;
• ACTION’s reaction was entirely disproportionate;
• he was provoked and acting in self-defence;
• his work record was exemplary;
• the fact that the incident was a circumstance which was inherently unlikely to reoccur, together with the personal and economic circumstances for him arising from the termination of his employment made the dismissal harsh in all the circumstances;
• Mr Howard was the only ACTION employee who came before the Commission indicating that he had lost trust and confidence in him, adding that Mr Howard did not interact with him on a regular basis; and
• there was more than ample evidence in this case to conclude that re-establishment of the employment relationship was viable and could be productive.
[15] Mr Thomas provided two witness statements 11. In his first witness statement, he provided a detailed outline of the incident on 11 May 2016 and subsequent events leading up to his dismissal. Among other things, Mr Thomas deposed that:
• in response to the other driver tooting his horn and gesturing with his middle finger (i.e. giving him the ‘bird’) he put his right hand out of the bus window and gave the other driver the ‘bird’;
• he was aware that the driver of the other vehicle was charged and convicted of assault, negligent driving and damaging property;
• he had not been charged with any offence by the Police; and
• he had not received any training in conflict/grievance resolution strategies during the course of his employment with ACTION.
[16] In his second witness statement, Mr Thomas outlined his family and economic circumstances, deposed that he had been unable to obtain full-time work since his dismissal, outlined the various casual roles he had performed since being dismissed, detailed his earnings in those roles, and set out the injuries he had received during the incident of 11 May 2016. Significantly, Mr Thomas expressed contrition for giving the bird to the other driver and for damaging the driver’s side mirror of the other vehicle, conceding that these actions were not acceptable conduct.
[17] Under cross examination Mr Thomas was taken through the CCTV footage of the incident. Key aspects of Mr Thomas’ oral evidence were that:
• he had undertaken no training in conflict resolution, dealing with grievances, de-escalating situations and avoiding conflict since the Commuter Bus Driver Training (CBDT) course he undertook in 2008;
• when the other vehicle pulled in front of the bus he was driving on 11 May 2016 he did not understand the situation to be an emergency situation or a security threat;
• he had little interaction with Mr Howard;
• he had never previously contacted the ACTION radio control room prior to exchanging details with another driver, acknowledging that he could have contacted the radio room for assistance but that he did not feel it was necessary at the time; and
• when the driver of the other vehicle threatened to “smash” him he did try and put space between himself and the other driver but the other driver followed him.
[18] ACTION agreed with Mr Thomas regarding the issues for determination in this case. However, ACTION submitted that Mr Thomas’ dismissal was not harsh, unjust or unreasonable and that his application should be dismissed. Among other things, ACTION also submitted that Mr Thomas’ actions leading up to and including the physical altercation with the other driver constituted a valid reason for his dismissal and that his dismissal was not unduly harsh when regard was had to a number of factors, including the potentially serious consequences of his conduct for the reputation of ACTION and the effect this could have on the public. As to remedy, ACTION submitted that it must be confident that bus drivers are able to make, with limited or no physical supervision, what are often quick decisions to defuse and avoid conflict in order to protect the safety of passengers, members of the public and themselves. Further, ACTION contended that it had lost trust and confidence in Mr Thomas to act appropriately in future situations involving conflict, adding that reinstatement was therefore not an appropriate remedy should the Commission find that Mr Thomas had been unfairly dismissed.
[19] At the hearing, ACTION relied upon its written submissions. Beyond that ACTION:
• reiterated that Mr Thomas had engaged in conduct which both constituted a valid reason for his dismissal and represented a fundamental departure from his duties as a bus driver and a public servant;
• submitted that the valid reason was two-fold – first, Mr Thomas was not required to exit the bus or exchange details with the other driver and, second, the physical altercation with the other driver;
• contended that the conflict and risk in this case could have been entirely avoided as Mr Thomas did not have to get out of the bus;
• submitted that it could not risk employing a driver in circumstances where it held real and valid concerns that the driver would engage in risky and avoidable behaviour when performing duties in a largely unsupervised environment; and
• stated that whilst the incident was an isolated event, the risk of Mr Thomas’ behaviour in terms of not avoiding conflict and not de-escalating the situation was too risky for the public and ACTION, adding that any reoccurrence could have a real and genuine effect on the viability of ACTION’s enterprise, the ACT Government’s reputation and the provision of transport services to the public.
[20] Key aspects of Mr Hocking’s witness statement 12 and oral evidence were that:
• as a new bus driver in 2008, Mr Thomas was required to undertake both pre-employment training with the Transport Industry Skills Centre and the CBDT course with ACTION;
• as part of the CBDT course new drivers undertook training on dealing with conflict and stress;
• when a driver commenced with ACTION they received training on responding to accidents, security incidents and emergency situations, adding that drivers were taught to contact the ACTION Communication Room/Centre either by radio or by pressing the duress button on the floor near the vehicle’s brake;
• a review of Mr Thomas’ 2008 assessments revealed that he was competent in using the radio, alerting the Communications Centre to any potential security threats and using the duress button in emergency situations;
• the ACTION Drivers Handbook contained policies and procedures covering the conduct of bus drivers, including details of emergency procedures, the use of the duress button and accident and incident reporting procedures;
• Mr Thomas had signed the register on 3 March 2016 to indicate that he had received a copy of the Drivers Handbook;
• clause 44 of the Drivers Handbook only required drivers to report accidents or incidents where they involved injury or damage; and
• it was a legal requirement to exchange details with the other party in circumstances where there has been a collision.
[21] Mr Brosolo in his witness statement 13 set out the chronology of events leading to Mr Thomas’ dismissal. Mr Brosolo deposed that he viewed the CCTV footage of the incident shortly after it occurred, stating that he was concerned by Mr Thomas’ behaviour because he failed to de-escalate the situation. More specifically, Mr Brosolo deposed that in his view Mr Thomas cold have de-escalated the situation by remaining on the bus, contacting the ACTION Communications Centre by radio, speaking to the other driver through the bus window and keeping the door closed to prevent the other driver from entering the bus. Key aspects of Mr Brosolo’s oral evidence were that he did not consider his statement14 that “ACTION Management places significant emphasis and provides relevant training for drivers about deescalating and avoiding conflict with passengers or members of the public” to be an overstatement and that he did not have any experience of bus driving.
[22] Mr Howard in his witness statement 15 deposed that:
• in carrying out driving duties, bus drivers were expected to appropriately deal with conflict with passengers and members of the public;
• ACTION bus drivers were required to protect the safety of passengers at all times;
• after viewing the CCTV footage of the incident several times it was his view that Mr Thomas should have taken steps to de-escalate the situation or to avoid the conflict in the first place, adding that it appeared that Mr Thomas failed to take the opportunities that were available to him to do so;
• more specifically, Mr Thomas should not have given the car driver the finger when he allegedly beeped the horn at him and should have remained in his seat and contacted the ACTION Communication Centre by radio to request assistance instead of leaving the driver’s seat and confronting the driver of the other vehicle;
• he no longer had confidence or trust that Mr Thomas could continue as an ACTION bus driver; and
• ACTION management could not and would not tolerate drivers who engage in violence or reckless decision-making given the independent nature of their work and the risk of serious harm that can result to passengers and staff, including the driver.
[23] Key aspects of Mr Howard’s oral evidence were that:
• he had never driven as a commuter bus driver;
• in preparing his witness statement he did not go through the Driver Handbook clause by clause;
• he was perhaps lucky to have spoken with Mr Thomas once a year;
• he accepted that Mr Thomas was a competent and reliable employee and believed that Mr Thomas was good at his job;
• it was debatable who instigated the incident of 11 May 2016; and
• he agreed that the incident of 11 May 2016 was an aberration in the course of Mr Thomas’ employment.
[24] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Thomas is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which provide as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) 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; and
(h) any other matters that FWC considers relevant.”
[25] There is no dispute that Mr Thomas was dismissed, so s.385(a) of the Act is satisfied. Mr Thomas contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. ACTION is not a small business employer therefore s.385(c) is not relevant. The termination was not a case of redundancy so s.385(d) does not apply. Therefore, in determining whether Mr Thomas was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).
Was the dismissal harsh, unjust or unreasonable?
[26] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will now address these criteria.
[27] In Rode v Burwood Mitsubishi 16 (Rode) a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd17. The following is an extract from the Full Bench’s decision in Rode.
“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:
“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.
In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.” (Underlining added)
[28] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King) 18. In King the Full Bench, drawing on Moore J’s comments in Edwards v Guidice19, stated:
“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”
[29] In this case Mr Thomas acknowledged that he had given the bird to the other driver and broke the driver’s side mirror off the other vehicle. Further, the CCTV footage of the incident clearly shows that Mr Thomas got off the bus to photograph the other vehicle when it stopped in front of him and attempted to punch the other driver after he knocked Mr Thomas’ mobile phone from his hands. In summary, the CCTV footage shows:
• the other vehicle pulling in front of the bus driven by Mr Thomas and stopping suddenly requiring Mr Thomas to brake suddenly;
• the driver of the other vehicle getting out of his vehicle and walking to the rear of the vehicle to see if there was any damage and taking a photograph with his mobile phone;
• at the same time Mr Thomas exiting the bus and walking to the front of the other vehicle and attempting to take a photograph of its licence plate with his mobile phone;
• the other driver then walking to where Mr Thomas is standing (i.e. the front left-hand corner of the other vehicle) and confronting him;
• what appears to be a heated conversation between Mr Thomas and the other driver, with both “in each other’s faces” at different times and the other driver closely shadowing Mr Thomas’ movements;
• Mr Thomas eventually moving in the direction of the bus and in doing so appearing to bump into the other driver after which the other driver knocked Mr Thomas’ mobile phone out of his hands with a swinging right arm blow;
• Mr Thomas then throwing two punches at the other driver with both punches missing;
• as Mr Thomas is throwing the punches the other driver is backing away to the other side of his vehicle with Mr Thomas advancing towards him;
• the other driver moving forward when Mr Thomas reaches the front right hand side of the vehicle and punching Mr Thomas on the left-hand side of the face knocking Mr Thomas’ sunglasses off his head;
• Mr Thomas pursuing the other driver who is now backing away towards the rear of his vehicle and when Mr Thomas gets to the driver’s side mirror he forcefully hits the mirror with his right arm causing the passenger to get out of the other vehicle;
• Mr Thomas taking several further steps forward and then starting to back away, pulling the driver’s side mirror off the vehicle as he goes past it and throwing it diagonally across the vehicle when he gets to the front of the vehicle;
• Mr Thomas then returning to where his mobile phone is on the roadway and bending down to pick up his phone when he is pushed forcefully from his left-hand side by the other driver across the kerb and out of vision of the CCTV camera;
• the other driver moving towards Mr Thomas and out of the CCTV camera’s range;
• the other driver subsequently re-emerging and the passenger retrieving the side mirror;
• Mr Thomas coming back into view and picking his mobile phone up off the footpath; and
• the other driver and passenger getting back into the other vehicle and driving off.
[30] Mr Thomas’ admission that he gave the bird to the other driver, his evidence regarding his conversation with the driver of the other vehicle which occurred through the bus window and the CCTV footage all point to Mr Thomas’ conduct contributing to the incident. While the conduct of the other driver was inexcusable and way over the top, the CCTV footage does not support a finding that Mr Thomas sought to either avoid or de-escalate the situation. To the contrary, Mr Thomas’ action in bumping the other driver (whether deliberately or accidentally) appears to have escalated the situation and incited the ensuing physical altercation.
[31] Further, while Mr Thomas contends that he got off the bus to exchange details with the other driver, the CCTV footage does not indicate any attempt by Mr Thomas to inspect whether a collision had occurred and to establish whether or not an exchange of details was necessary. I acknowledge that events as they unfolded may have precluded Mr Thomas from doing so, but one would expect that inspecting whether there had in fact been a collision would have been Mr Thomas’ first priority after getting off the bus.
[32] As to whether Mr Thomas’ conduct provided a valid reason for his dismissal, clause H6.5 of the Agreement which was relied upon by ACTION defines misconduct as follows:
“H6.5 For the purposes of this Section, misconduct includes any of the following:
a) the employee fails to meet the obligations set out in section 9 of the PSM Act 1994 (this includes bullying and harassment or discrimination);
b) the employee engages in conduct that has brought, or is likely to bring, the Directorate or ACTPS into disrepute;
c) …”
[33] Section 9 of the Public Sector Management Act 1994 (the PSM Act) as applied in this case 20 provided as follows:
“General obligations of public employees
9. A public employee shall, in performing his or her duties:
(a) exercise reasonable care and skill;
…
(b) treat members of the public and other public employees with courtesy and sensitivity to their rights, duties and aspirations;
…
(h) comply with this Act, the management standards and all other Territory laws;
(i) comply with any lawful and reasonable direction given by a person having authority to give the direction; …”
[34] Having regard to the above analysis of the CCTV footage supports a finding that Mr Thomas failed to meet his obligations under s.9 of the PSM Act. In particular, the material before the Commission supports a finding that in performing his duties as a bus driver Mr Thomas failed to exercise reasonable care and failed to treat members of the public with courtesy.
[35] This in turn supports a finding that there was a valid reason for Mr Thomas’ dismissal as a result of his conduct which comes within the definition of misconduct in the Agreement. Further, drawing on the language in Rode, I am satisfied that the reason for Mr Thomas’ dismissal was defensible or justifiable on an objective analysis of the material before the Commission and that it was not “capricious, fanciful, spiteful or prejudiced.”
(b) Whether the person was notified of that reason
[36] Mr Thomas and ACTION both acknowledged that he was given notice of the reason for his dismissal.
[37] It is clear from Mr Edghill’s letters of 6 October and 17 November 2016 that Mr Thomas was advised of the reasons for his dismissal.
[38] Accordingly, this factor does not point to Mr Thomas’ dismissal being harsh, unjust or unreasonable.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[39] Neither Mr Thomas nor ACTION disputed that Mr Thomas had been given an opportunity to respond to the reasons for his dismissal. In addition, ACTION highlighted that as part of the misconduct investigation Mr Thomas was also provided with opportunities to view the CCTV footage of the incident but that he declined to do so on each occasion.
[40] Mr Edghill’s letter of 6 October 2016 which also invited Mr Thomas to respond to his “findings of misconduct and proposed disciplinary action” supports a finding that Mr Thomas was given an opportunity to respond to the reasons related to his conduct.
[41] As such, I consider that this factor weighs against a finding that Mr Thomas’ dismissal was harsh, unjust or unreasonable.
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[42] Both Mr Thomas and ACTION both submitted that this ground was not relevant.
[43] I note that the suspension letter of 13 May 2016 advised Mr Thomas that the investigation process entitled him to have a support person present during any interview, though it appears that ultimately Mr Thomas did not avail himself of that opportunity. This does not point to any refusal by ACTION to allow Mr Thomas to have a support person attend discussions regarding his dismissal or to Mr Thomas’ dismissal being harsh, unjust or unreasonable.
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[44] Mr Thomas submitted that as he was not dismissed for unsatisfactory performance this consideration was not relevant. ACTION also submitted that this consideration was not relevant.
[45] As Mr Thomas’ dismissal related to his conduct rather than unsatisfactory performance, this factor is not relevant.
(g) 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
[46] It was not disputed that these considerations were not relevant in this case.
[47] ACTION is a large employer stating in its Form F3 – Employer Response to Unfair Dismissal Application that it had almost 1800 employees. Further, ACTION either directly employs and/or has access to dedicated human resource management specialists such as Mr Hocking. Against that background and in the absence of any contentions to the contrary, I consider these factors to be neutral considerations.
(h) Any other matters that FWC considers relevant
[48] Relying on the decision in Rayner v Little Moreton Pty Ltd 21 Mr Thomas submitted that an employee terminated for assaulting someone or damaging someone’s property during the course of employment will not necessarily have been fairly dismissed, adding that all the circumstances must be considered to determine whether dismissal was too harsh a sanction in the circumstances. Mr Thomas further submitted that salient factors will often include the context in which the assault or property damage occurred, whether the employee was provoked or acted in self-defence, the length of the employee’s service and their general employment history. Against that background, Mr Thomas submitted that:
• his actions towards the driver of the other vehicle were lawful because they were carried out in self-defence,
• the Police had accepted that he had been the victim of a violent criminal assault;
• his actions in ‘flipping the bird’ and damaging the other vehicle were not appropriate or acceptable;
• his work history was excellent, adding that the incident was the sole blemish on his employment record; and
• his dismissal had impacted on him harshly, referring particularly to his inability to find stable and consistent work as adversely impacting he and his wife’s capacity to discharge their financial obligations.
[49] In summary, Mr Thomas submitted that having regard to the circumstances in which his conduct occurred, his past good conduct and his personal circumstances, dismissal was too harsh a consequence.
[50] ACTION on the other hand, drawing on the Full Bench decision in Paramalat Food Products Pty Ltd v Mr Kasian Wililo 22, contended that where a valid reason for a termination exists amounting to serious misconduct and the Respondent has complied with the statutory requirements for procedural fairness, significant mitigating factors are required for a finding of harshness to be open to the Commission. ACTION agreed that there were mitigating factors in this case accepting that Mr Thomas’ conduct prior to and other than the incident had been unproblematic and that Mr Thomas had been reliable. ACTION further cited that Mr Thomas had acknowledged the foolishness of his actions in both ‘flipping the bird’ and damaging the other driver’s vehicle, adding that all these matters were to Mr Thomas’ credit.
[51] With regard to Mr Thomas’ contention that the incident was dangerous, unusual and extraordinary, ACTION submitted that road rage situations are commonplace for bus drivers and that drivers were trained to avoid and diffuse conflict situations. Against that background, ACTION contended that the incident involving Mr Thomas only became extraordinary because Mr Thomas did not diffuse or avoid the situation but instead escalated the conflict by throwing three successive punches at the other driver.
[52] Finally, ACTION submitted that any harshness for Mr Thomas must be weighed against the potential serious consequences of Mr Thomas’ conduct for ACTION’s reputation and the affect this could have on the public, the risk posed to drivers, passengers and the loss of confidence between Mr Thomas and ACTION management. Having regard to the above considerations, ACTION contended that the dismissal was not unduly harsh.
[53] The Full Bench in DP World Sydney Limited v Mr Stephen Lambley 23(DP World) stated as follows:
“[45] Much has been said in the decision at first instance, and in the decision of the first Full Bench, about the principles surrounding fighting in the workplace. In one of the leading authorities on the issue, AWU-FIME Union v Queensland Alumina Ltd, Moore J observed that:
“What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence.”
[46] Although dismissal of an employee due to fighting in the workplace may very well be viewed as not harsh, unjust or unreasonable, the circumstances surrounding the fight and the employee’s personal circumstances must be considered prior to such a conclusion being drawn.
[47] We agree with the majority in the decision of B, C, and D v Australia Postal Corporation t/as Australia Post (Australia Post) that the approach the Full Bench is to take in determining whether the dismissal was harsh, unjust or unreasonable is to:
• determine if there is a valid reason based on conduct; and then
• engage in a weighing up process, weighing:
• the gravity of the misconduct; against
• the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” (Endnotes omitted)
[54] While the incident may not have occurred had Mr Thomas merely ignored the other driver’s conduct in tooting his horn and giving Mr Thomas the bird and not ‘flipped the bird’, the CCTV footage does not point to Mr Thomas being the instigator of either the incident or the physical altercation with the other driver. Of note in this regard are the following aspects of the incident, most of which are supported by the CCTV footage of the incident:
• the other driver pulled alongside the bus driven by Mr Thomas and abused Mr Thomas;
• the other driver took off in front of Mr Thomas’ bus and stopped suddenly as if inviting a collision;
• after inspecting his vehicle the other driver confronted Mr Thomas and closely shadowed Mr Thomas’ movements;
• it was the other driver who deliberately knocked Mr Thomas’ mobile phone from his hands provoking Mr Thomas to retaliate; and
• it was the other driver who punched Mr Thomas in the face and subsequently pushed him as he bent down to retrieve his mobile phone, albeit that the latter action may have been in response to Mr Thomas breaking off the side mirror from his vehicle.
[55] Also pertinent in this regard is Mr Thomas’ acknowledgement that his conduct was inappropriate and that he could have handled the situation better.
[56] Taken together, the above analysis supports a finding that the circumstances surrounding the incident are a relevant matter.
[57] Mr Thomas submitted that his personal and economic circumstances were a relevant consideration in this matter. However, Mr Thomas’ inability to secure full time work and the economic impact of his dismissal are in my view not an uncommon experience for someone who has lost their job. Accordingly, I do not consider these circumstances to be a relevant matter in this case.
[58] Beyond this, Mr Thomas at the time of his dismissal had worked for ACTION for eight and a half years. Mr Howard’s evidence was that Mr Thomas was a competent and reliable employee who was good at his job and that he considered the incident to have been an aberration in the course of Mr Thomas’ employment. Further, there was no evidence before the Commission that Mr Thomas had previously been disciplined or counselled for similar conduct or for any other reason. Against that background, I consider Mr Thomas length of service and his employment record to be relevant matters.
[59] Drawing on the above analysis, I find that there was a valid reason for Mr Thomas’ dismissal, that Mr Thomas was notified of that reason and given an opportunity to respond to that reason and that the circumstances surrounding the incident together with Mr Thomas’ length of service and employment record are relevant matters. Beyond that, I find that the remaining criteria in s.387 of the Act are either neutral considerations or not relevant in this case.
[60] As noted in DP World determining whether Mr Thomas’ dismissal was harsh, unjust or unreasonable entails a weighing up exercise which involves weighing the gravity of the misconduct against any mitigating circumstances and other relevant matters weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct. I agree with and adopt that approach in this case.
[61] Further, the leading statement of principle regarding the meaning of the expression “harsh, unjust or unreasonable” is the statement in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 24(Byrne):
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” (Underlining added)
[62] While I have previously determined that Mr Thomas’ conduct provided a valid reason for his dismissal, when regard is had to the circumstances surrounding the incident and Mr Thomas’ length of service and employment record his dismissal appears to be a disproportionate response to his conduct. In particular, the material before the Commission points to the other driver being the primary instigator of the incident though Mr Thomas’ conduct in ‘flipping the bird’ to the other driver and damaging the other vehicle were contributing factors. There is no excuse for Mr Thomas’ conduct, his action in ‘flipping the bird’ to the other driver was particularly unnecessary and unprofessional. I note also that ACTION agreed that there were mitigating factors in this case accepting that Mr Thomas’ conduct prior to and other than the incident had been unproblematic and that Mr Thomas had been reliable.
[63] Having regard to all the material before the Commission and drawing on the language in Byrne supports a finding that Mr Thomas’ dismissal was harsh on the basis that it was disproportionate to his misconduct when regard is had to the circumstances surrounding the incident and Mr Thomas’ length of service and employment record.
[64] I turn now to consider the issue of remedy.
[65] Section 390 and 391 of the Act which deal with when the Commission may order a remedy for unfair dismissal and the issue of reinstatement provides as follows:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A)
If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
[66] With regard to remedy, Mr Thomas contended that the Commission should order reinstatement and also make orders maintaining the continuity of his service with ACTION and for lost remuneration. Mr Thomas further contended that there was more than ample evidence in this case to conclude that re-establishment of the employment relationship was viable and could be productive.
[67] Conversely, ACTION contended that it had lost trust and confidence in Mr Thomas to act appropriately in future situations involving conflict and that reinstatement was therefore not an appropriate remedy.
[68] The issue of loss of trust and confidence in circumstances where an employee’s employment had been terminated was considered by the Industrial Relations Court in Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins) 25. The Court found in Perkins that:
“Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage the relationship or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, No. 606/96, 13 December 1996). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Div 3 of Pt VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between the employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.
Each case must be decided on its own merits.” 26 (Underling added)
[69] The issue was also canvassed by Justice Gray in Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd 27 (G K O’Connor) when he observed:
“… It might be more significant, for instance, to know the name of Mr Voss’s immediate supervisor and to know the attitude of that person towards him. If the immediate supervisor had no trust in Mr Voss, it might also be relevant to know whether it would be possible to place Mr Voss in another part of the workplace, under another supervisor, who did have such trust. It would also be relevant to know what effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct of operations in the workplace. There is no evidence as to any of these matters.
43. Resort to an assertion that trust and confidence in a particular person have been lost cannot be a magic formula for resisting the compulsory reinstatement in employment of the particular person.” (Underlining added)
[70] Having regard to the decisions in Perkins and G K O’Connor, I see no reason why the employment relationship cannot be successfully re-established in circumstances where:
• Mr Howard was the only ACTION employee to give evidence that he had lost trust and confidence in Mr Thomas;
• Mr Howard attested that he was perhaps lucky to have spoken with Mr Thomas once a year and accepted that Mr Thomas was a competent and reliable employee who was good at his job;
• Mr Howard agreed that the incident of 11 May 2016 was an aberration in the course of Mr Thomas’ employment;
• ACTION accepted that Mr Thomas’ conduct prior to and other than the incident had been unproblematic and that Mr Thomas had been reliable; and
• Mr Thomas acknowledged that his actions were not acceptable conduct.
[71] Whilst I accept that the relationship between ACTION and Mr Thomas is likely to be bruised, I do not consider it beyond repair. As such, taking into account all of the above considerations I consider it is appropriate to order that Mr Thomas should be reinstated to his former position with ACTION under ss.390(1) and 391(1) of the Act. I also consider it appropriate to make an order under s.391(2)(a) of the Act to maintain the continuity of Mr Thomas’ employment. However, given that Mr Thomas’ conduct in ‘flipping the bird’ and damaging the other vehicle were contributing factors to the incident and that his conduct associated with the incident was inappropriate, I decline to make any order for lost remuneration under s.391(3) of the Act.
[72] Having considered all of the criteria in s.387 of the Act, I find that Mr Thomas’ dismissal was for the reasons outlined above harsh. As to remedy, I order that Mr Thomas be reinstated to his former role and that his continuity of employment be maintained. Orders to that effect will be issued in conjunction with this decision. However, in view of Mr Thomas’ conduct I do not consider an order for payment of lost remuneration to be appropriate.
Appearances:
P Boncardo of Counsel for the Applicant.
J. Karcher for the Respondent.
Hearing details:
Canberra.
2017:
October 12.
2 Exhibit 1 at paragraph 17
3 Ibid
4 Exhibit 6 at Annexure JB1
5 Ibid at Annexure JB4
6 AE407927
7 Exhibit 6 at Annexure JB5
8 Ibid at Annexure JB6
9 Ibid at Annexure JB8
10 Ibid at Annexure JB9
11 Exhibits 1 and 2
12 Exhibit 5
13 Exhibit 6
14 Ibid at paragraph 19
15 Exhibit 7
16 Print R4471
17 (1995) 62 IR 371
18 Print S4213
19 (1999) 169 ALR 89 at 92 per Moore J
20 Amendments to s.9 of the PSM Act came into effect on 1 September 2016
21 [2017] FWC 1652 at [83]
24 (1995) 185 CLR 410 at p 465-6
25 (1997) 72 IR 186
26 Ibid at 191
27 [2000] FCA 627
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