DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emrah Bilgi
v
CDC Tullamarine Pty Ltd T/A CDC Tullamarine
(U2018/9859)

Application for an unfair dismissal remedy – disparaging comments to passengers about manager - applicant left passengers stranded at bus stop – whether harsh, unjust or unreasonable – valid reason – application dismissed.

[1] Mr Emrah Bilgi (the Applicant) was employed by CDC Tullamarine Pty Ltd T/A CDC Tullamarine (the Respondent) (formally Tullamarine Bus Lines Pty Ltd) as a bus driver. He commenced employment with the Respondent on 7 December 2015 and his employment was terminated on 10 September 2018 following an incident on 31 August 2018.

[2] The Applicant was represented with permission by Ms L. Kefford of Melbourne Lawyers & Mediators. The Respondent was represented by Mr I. MacDonald from the Australian Public Transport Industrial Association.

[3] The matter was conducted by way of hearing.

[4] As to preliminary matters I am satisfied that the Applicant is protected from unfair dismissal in that he has served the minimum employment period, his employment was covered by a modern award or agreement, he did not earn in excess of the high income threshold and that it is not claimed the dismissal was a redundancy. I am also satisfied that the Small Business Fair Dismissal Code does not apply. Further the application was made within the 21 day time period. I am satisfied that the Applicant was dismissed from his employment.

Background

[5] On 31 August 2018, whilst driving bus 33 on a specified route, the Applicant pulled the bus into a bus stop, called the “operations centre” (Operations) by radio and advised that he was stressed and would drive onto Broadmeadows where he wanted to be replaced. He complained in that radio call about the seatbelt on the bus which he had previously reported as faulty.

[6] As he waited for a response from Operations he spoke to various passengers (who generally approached him with questions about how long the next bus would be) where he complained about his treatment by the Respondent, in particular Ms Frances Ross, the Service Delivery Manager for the Respondent and said that he had raised health and safety issues with the Respondent that had not been addressed.

[7] The Respondent sent a replacement bus and driver as well as a person to take the bus being driven by the Applicant and the Applicant back to the Tullamarine depot (depot). The Applicant refused to go back to the depot saying that he needed to walk and he would get someone to collect him.

[8] The bus is fitted with audio and video CCTV. The Commission was provided with footage of the incident from about 10 minutes prior to the Applicant stopping the bus until about 30 minutes after the incident.

[9] At the time of this incident the Applicant was in receipt of a second and final warning given on 3 November 2017 in relation to him having left a bus running with keys in the ignition and unattended with a passenger on board. He did this so he could quickly get some money to purchase his lunch.

[10] The Applicant had also received notice of a meeting outcome in relation to a meeting conducted with him on 14 May 2018 in relation to the late running of the service he was responsible for. The letter formalised that, whilst it was accepted that he did not intentionally delay the service, he should be aware of his obligations and his performance in this respect required improvement.

[11] A further meeting was held with the Applicant on 27 August 2018 in relation to “on-time running”, what a driver was required to do if they needed to use the bathroom whilst on route and the standards of customer service expected of a driver. The record of this conversation was given to the Applicant on his break prior to the incident of 31 August 2018.

[12] Evidence was given in the proceedings by:

•  Mr Emrah Bilgi – the Applicant;

•  Ms Dzenana Bilgi (former wife of the Applicant) – not subject to cross-examination;

•  Ms Frances Ross, Service Delivery Manager for the Respondent – not subject to cross-examination;

•  Ms Gwendolyn Jones, Human Resources Manager for CDC Victoria Pty Ltd - not subject to cross-examination;

•  Mr Jim Sikavitsas, CDC Tullamarine Special Advisor and former Managing Director of Tullamarine Bus Lines Pty Ltd – not subject to cross-examination.

Was the Applicant unfairly dismissed?

[13] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code and the dismissal was not a case of genuine redundancy.

[14] Section 387 of the FW Act provides as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the 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 the FWC considers relevant.

[15] I have considered each of these matters below.

Section 387(a) – a valid reason for dismissal related to capacity or conduct

[16] The Applicant’s employment was terminated following the incident on the bus on 31 August 2018. The letter of termination of employment said that the Applicant’s employment was terminated because:

1. He initially advised Operations that he would be unable to continue driving as he felt stressed and he would continue the service to Broadmeadows station however he failed to do so and left passengers stranded at a bus stop. Further, he told passengers including a number of school children that they would have to walk to their destination.

2. He spoke to passengers about the safety of the buses – more specifically that he reported safety issues and made allegations that the company failed to rectify these safety issues. He continually suggested that the Respondent had ignored the issues and said he was “bullshitting and lying” about them.

3. He made a number of disparaging comments about Ms Ross as his manager to a passenger including expressing details of warnings and disciplinary matters to them.

4. He refused to return to the depot with Mr Jim Sikavitsas, CDC Tullamarine Special Advisor, who had attended to bring him and the bus back to the depot.

[17] The Applicant does not dispute that he advised Operations he was unable to continue to drive but that he would go on to Broadmeadows, that he subsequently did not do so and left passengers at the bus stop. The Applicant said however that he considered it safer for passengers that he not drive the bus any further and they walk than have him continue to drive.

[18] The Applicant did not deny that he said these things to passengers set out at point 2 above. He did say that his reference to “bullshitting” was no more than him repeating the words used to him by management, in particular Ms Ross.

[19] The Applicant agreed that he said these things of Ms Ross to a passenger but that management’s actions were illegal in matters like not providing employees with proper meal breaks. He said that he has stood by and taken the actions of management but on this day said what he thought needed to be said.

[20] The Applicant agreed that he did not return to the depot on the bus with Mr Sikavitsas. He said this was because he needed to walk and be by himself. Further, he said he did not want to say anything untoward towards Mr Sikavitsas and the best way to do this was to stay away from him.

[21] The letter of termination, whilst dated 12 September 2018, confirmed the dismissal of the Applicant on 10 September 2018.

[22] The Applicant says that the reaction he had and his conduct on stopping the bus on 31 August 2018 were unusual for him and were the result of the stress he was under.

[23] The Applicant said that he had raised a fault in relation to the seatbelt in the bus he was driving at the time of the incident some weeks earlier. He said in his email to Ms Gwendoline Jones, Human Resources Manager, on 9 September 2018 that as he approached the roundabout (shortly before he stopped) and tried to turn the seatbelt locked and hurt his neck and shoulder and he “had no other option than to break (sic) and try to get away from hitting the electric pole which is in the way when we are turning.” He said that after he braked he tried to fix the seatbelt. He started shaking because he was so upset and that this was the breaking point for him.

[24] The Applicant also said that a customer on the bus also commented on the seatbelt and had indicated that the seatbelt had “locked”.

[25] The Applicant further said that at lunch time on 31 August 2018 Ms Ross approached him and gave him an envelope. She then asked him to come to the office to collect his uniform. He said that the envelope (which contained the notes of the record of conversation from 27 August 2018) should have been given to him in the office and that the purpose of giving the envelope to him and/or the record of conversation was to make him angry.

[26] The CCTV footage suggests that, as the Applicant came around the roundabout, the seatbelt tightened but almost immediately released so that it does appear on the CCTV to be moving freely as the Applicant moved to steer the bus. There is no indication that he needed to brake to miss the light pole or that he tried to fix the seatbelt but could not do so. Further, there is nothing on the audio that indicates a passenger agreed with the Applicant that the seatbelt had locked.

[27] I do agree that the Applicant appeared agitated by the time he contacted Operations to advise that he wanted to be replaced.

[28] I do not consider that Ms Ross did anything untoward in giving the Applicant the letter in an envelope in the lunch room on 31 August 2018. The Applicant was at the meeting on 27 August 2018, there did not appear to be anything untoward in that meeting and the provision of the notes can hardly have been of much surprise to the Applicant. The only observation I would make is that it would perhaps be better to provide such material to drivers at the end of their shifts so that they are not distracted by the contents of such notes just before commencing to drive.

[29] Further, I have accepted the uncontested evidence of Mr Sikavitsis that when the Applicant first reported issues with the seatbelt in bus 33 he had tested it and found it in working order. On the drive back to the depot he constantly tested the seatbelt and found it in working order, later retested it and had a mechanic test it with no fault able to be found.

[30] In reaching my decision I have had regard to the CCTV footage from the bus which recorded both the video and audio of what occurred from before the Applicant pulled up at the bus stop to him stopping, talking to Operations, his exchange with passengers and his exchange with Mr Sikavitsis.

[31] I am satisfied, on the basis of the CCTV footage that the Applicant did initially advise Operations that he would take the bus to Broadmeadows but that he wanted to be replaced once he reached there. Operations suggested that he complete the trip and the bus would be swapped over to which he replied “just take the bus and let me go.”

[32] Further, I am satisfied on the basis on the CCTV footage that the Applicant did advise passengers, including school children that “if it’s a short distance please walk.” Whilst he did not tell passengers they would need to walk all the way to their destinations, regardless of distance, he did suggest they walk. Further, he did leave school children with no apparent thought as to how they might get from where he was stopped to where they should have been dropped off. He provided no pro-active advice or assistance to passengers as to steps being taken by him to have a replacement bus arrive.

[33] I am also satisfied, on the basis on the CCTV footage, that the Applicant did tell passengers that he had reported safety issues to management and that, in effect the company did nothing about these concerns and told him he was “bullshitting”. Further, I am satisfied that the Applicant did make disparaging comments about Ms Ross including that she was “abusing” him with respect to rolling cigarettes. He also made disparaging comments to customers with respect to the Respondent and how it dealt with safety issues. He also said to passengers that the Respondent was acting illegally.

[34] I am also satisfied that the Applicant refused to return to the depot with Mr Sikavitsis who arrived to take him and the bus back to the depot.

[35] I have carefully considered all of the evidence before me, including the Applicant’s statements, his history and the CCTV footage. On the basis of the evidence before me I am satisfied that the incidents as set out in the letter of termination of the Applicant dated 12 September 2018 did occur.

[36] A valid reason for dismissal is one which is “sound, defensible and well founded”. A reason that is “capricious, fanciful, spiteful or prejudiced” cannot be a valid reason.¹

[37] The incident with the Applicant on 31 August 2018, understood in context of a second and final warning given in November 2017 and a number of incidents after that date as set out in the evidence of Ms Ross² (most of which the Applicant did not take issue with) are such that the reasons for provided form a valid reason for his dismissal.

Section 387(b) - whether the person was notified of the reason for dismissal

[38] The Applicant was sent a letter on 4 September 2018 in which he was invited to a meeting to discuss the incident of 31 August 2018. He was advised in that letter that the Respondent had “formed the opinion” that the Applicant’s conduct, including his refusal to return to the depot, indicated a fundamental breakdown in the relationship between it and the Applicant. The letter indicated that “it may be in the best interests of the parties” if his employment was to cease. He was invited to meeting on 10 September to discuss the matter.

[39] On this basis I am satisfied that the Applicant was advised of the reason for his dismissal.

Section 387(c) - whether the person was given an opportunity to respond

[40] On 9 September 2018 the Applicant sent an email to Ms Jones in which he detailed his response to a number of matters that had occurred prior to 31 August 2018 which led to the second and final warning and the meetings of 14 May 2018 and 27 August 2018, amongst other things. He also explained in that email the circumstances leading up to him stopping the bus on 31 August 2018.

[41] At the meeting of 10 September 2018 the Applicant was shown the CCTV footage of the incident, asked to respond to the concerns of management and as to why his employment should not be terminated given the contents of the CCTV footage. The uncontested evidence of Ms Ross is that the Applicant was asked to respond to the concerns raised and, following a short break in which he viewed the CCTV footage, was given a further opportunity to “to offer any explanation for his actions or if he wanted to add anything further before a decision was made.” 3

[42] I am satisfied that the final decision to terminate the Applicant’s employment was taken after the Applicant viewed the CCTV footage and was after he was given an opportunity to explain his actions. Whilst the wording of the letter of 4 September 2018 inviting him to the meeting is slightly unusual, I am satisfied that the Applicant was given an opportunity to respond before the decision to dismiss him was made.

[43] I am therefore satisfied that the Applicant had a reasonable opportunity to respond prior to the decision having been made to terminate his employment.

Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person to assist at any discussions relating to dismissal

[44] I am satisfied that the Applicant was not unreasonably refused a support person. The Applicant had present with him in the meeting on 10 September 2018 an organiser from the Transport Workers’ Union of Australia (TWU).

[45] Despite some suggestion to the contrary there is no evidence that the Applicant was, from the time he joined the TWU, refused the support of the TWU organiser in any meeting he attended with the Respondent.

Section 387(e) unsatisfactory performance

[46] The Applicant’s employment was terminated for misconduct. The Applicant’s work performance is not a relevant consideration except to the extent that the Respondent does rely on some past conduct and performance matters raised with the Applicant to support its decision.

[47] Where these matters go to performance I am satisfied that the Applicant was advised of the performance standards expected of him. For example he was advised of the proper procedures and/or standards expected of him in his dealings with members of the public and his approach to dealing with toilet stops etc. Such warnings are reflected in the second and final warning, the letter detailing the outcomes of a meeting between the Applicant and Respondent on 14 May 2018 and the record of conversation of a meeting held on 27 August 2018 with the Applicant.

Section 387(f) & (g) – the size of the employer’s business and absence of dedicated human resources management specialists or expertise

[48] The Respondent is a large employer. It has senior management present at the depot and access to human resource management. The size of the business and access to human resources expertise such that it could be expected to have well developed policies and procedures in relation to employee conduct, performance and discipline including dismissal.

Section 387 - other matters

[49] The Applicant said that he was refused annual leave for the time he was employed by the Respondent and that when he was on sick leave was pressured to come to work. Whilst I accept that the Applicant was refused some annual leave that he applied for the evidence suggests that there was an operational reason for such a refusal (a number of drivers already had their leave approved) but that alternative leave at a later date was approved.

[50] The Applicant produced a doctor’s certificate for the period 31 August 2018 to 7 September 2018, a letter from his psychologist dated 23 November 2018 and a report of an ultrasound on his shoulder dated 17 October 2018.

[51] None of the medical evidence supports a conclusion that at the time of the incident the Applicant was impaired either physically or mentally that might explain his behaviour on the day. In this respect I note that the psychologist’s report is no more than a report of what the Applicant told the psychologist, some of which I note is inaccurate when compared to the CCTV footage (for example he told the psychologist he was asked to continue driving to Broadmeadows when, in fact, he had first offered to do this).

[52] The Respondent says that I should take into account the Applicant’s history, his disregard for direction given to him (displayed by his repeating of the u-turn at Broadmeadows shopping centre after he was advised that this was not an acceptable practice) and his disrespect shown to Ms Ross.

Conclusion

[53] In all of the circumstances I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable. The Applicant has an extensive history of warnings and discussion with respect to his conduct and performance. Whilst I accept that he may not recall some matters going back to 2016, he did receive a first warning on 31 July 2017 and a second and final warning on 3 November 2017. Further, there were a number of matters raised in 2018 which, whilst not enough to activate the final warning, were not matters the Applicant could seriously disregard.

[54] Whilst I accept that the Applicant was agitated by the time he stopped the bus on 31 August 2018 there was no excuse for the comments he made to passengers that denigrated the Respondent in general and Ms Ross in particular.

[55] For these reasons I am satisfied that the Applicant was not unfairly dismissed.

[56] The application is therefore dismissed. An order 4 to that effect will be issued with this decision.

COMMISSIONER

Appearances:

L. Kefford for the Applicant.

I. MacDonald for the Respondent.

Hearing details:

2019.

Melbourne:

January 17.

Printed by authority of the Commonwealth Government Printer

<PR703944>

1 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

2 Exhibit R2, paragraph 5.

 3   Exhibit R2, paragraph 10.

 4   PR703966.