Fair Work Act 2009
s.394—Unfair dismissal

Detlef Graevinghoff
v
Kinetic (Tasmania) Pty Ltd
(U2021/9334)

Application for an unfair dismissal remedy – girl left at remote bus stop contrary to policy – whether serious misconduct – valid reason for dismissal – unfair not to pay notice in the circumstances – compensation ordered reflecting the notice period

[1] This decision concerns an application made by Mr Detlef Graevinghoff under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. Mr Graevinghoff was employed as a bus driver by Kinetic (Tasmania) Pty Ltd (company) from 21 October 2018 until his dismissal on 1 October 2021. Mr Graevinghoff was dismissed for serious misconduct following an incident on 26 September 2021 in which a sixteen year old girl who had sought to board Mr Graevinghoff’s bus in a remote area at dusk was told by Mr Graevinghoff that she had the wrong ticket and that he was unable to issue her with a new one.

[2] Mr Graevinghoff contends that he did nothing wrong because he simply told the girl about the ticketing problem, and she decided of her own accord not to board the bus and instead to be collected by her mother. He contends that the company had no valid reason to end his employment and that his dismissal in all the circumstances was unfair. The company submits that Mr Graevinghoff discouraged the girl from boarding the bus and left her in a remote area to be collected by her mother, who had to drive over an hour and a half from Hobart to do so. The company submits that Mr Graevinghoff placed the girl at risk by failing to follow its policy that no child ever be left behind, and that this constituted serious misconduct warranting immediate dismissal.

[3] Giving evidence in the proceedings before me on 14 December 2021 were Mr Graevinghoff, who represented himself, Ms Samantha Simonetis, his support person, and Mr Andrew Grzinic, the company’s general manager for Tasmania.

[4] Section 396 of the Act requires that I decide four matters before considering the merits of the application. There is no dispute between the parties, and I am satisfied, of the following matters. First, Mr Graevinghoff’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Mr Graevinghoff was a person protected from unfair dismissal, because he earned less than the high income threshold (s 382). Thirdly, the dismissal was not a case of genuine redundancy. Fourthly, the company is not a small business, and the Small Business Fair Dismissal Code is not relevant.

The evidence

[5] Much of the factual background is uncontroversial, however there are certain contested matters that I must resolve with factual findings.

[6] On 26 September 2021, Mr Graevinghoff was driving a bus on the company’s Launceston to Hobart route. The company’s bus services from northern Tasmania take bookings as well as ‘hail and ride’ passengers who have no booking. Mr Graevinghoff said that as he left Launceston, he was aware that he had a fully booked bus, and that there were four persons listed on the passenger manifest to pick up in Perth. Only two of these passengers boarded the bus however, resulting in there being two spare seats on the bus, not including the vacant ‘COVID’ seats immediately behind the driver.

[7] Mr Graevinghoff said that as he approached Epping Forest at around 6.08pm, he noticed a person standing near the pickup point for transfers from the east coast, and that although there was no pickup scheduled on his manifest, he pulled over to offer assistance. A girl boarded the bus and showed Mr Graevinghoff a ticket to Hobart issued by Calows, another bus line. Mr Graevinghoff’s evidence was that, although he did not have his glasses on, he could see that it was a Calows ticket. He told the girl that she did not have a Redline ticket, and that she was not on his passenger manifest, but that he did have two spare seats. The girl said that she was a student and was going to Hobart. Mr Graevinghoff offered to sell her a Redline student ticket for $1.80, and she agreed, but when he tried to process the ticket in the system, it showed an error, indicating that the bus was full - the system did not account for the two ‘no shows’ in Perth. Mr Graevinghoff showed the girl the screen. He said that he could call his manager and unbuckled his seatbelt to retrieve his telephone. But the girl then said words to the effect of ‘No worries, I should have booked, I can get a lift from here to Hobart.’ Mr Graevinghoff said: ‘Are you sure?’ The girl replied with words to the effect of ‘Yes, no problem, I can make a phone call’. Mr Graevinghoff’s evidence was that if the girl had not said this, he would have proceeded to call the depot to get instructions on how to proceed. Mr Graevinghoff said that he told the girl to wait in the nearby service station, and that she should remember to book because Fridays and Saturdays were the busiest days. She replied ‘OK, thanks,’ and then left the bus. Mr Graevinghoff said that he saw the girl walking towards the service station in a happy mood. He then continued on his route.

[8] The girl then called her mother, who drove some hour and forty five minutes from Hobart to collect her and proceeded to make a complaint to the company. The mother has since made contact with Mr Graevinghoff and, in written exchanges with Mr Graevinghoff that were submitted to the Commission, has made clear to him that she blames the company for her daughter having been left behind, rather than Mr Graevinghoff.

[9] The incident was reported in the Tasmanian press. The company tendered an article published in the Mercury on 29 September 2021, which carried the headline: ‘I started bawling my eyes out as soon as he drove away’: 16 year old stranded in Epping Forest’. The article stated that a girl had been left ‘scared and stranded on the side of a road … after a bus driver refused to let her on because she wasn’t in the system’. The article explained that the girl’s trip had been in two legs, the first from St Helens to Epping Forest on Calows, the second from Epping Forest to Hobart with Redline. It quoted the girl as saying that when she tried to board the bus in Epping Forest, the driver (Mr Graevinghoff was not named) had told her that her confirmation was not in the system, and that she could not buy a ticket because his machine was broken. It quoted the girl as saying that she had not wanted to be stranded on the side of the road.

[10] Mr Graevinghoff was stood down on pay from 29 September 2021. On 1 October 2021, Mr Grzinic met with Mr Graevinghoff to discuss the incident. Mr Graevinghoff explained that he had not realised that the person was a minor, that she had presented a Calows ticket and that he had tried to sell her a Redline ticket but was not able to do so, and that she had decided not to travel. Mr Graevinghoff told Mr Grzinic that he had understood that all passengers needed to pay for their fare in order for him to be covered by insurance in the event of an accident. This was not in fact the case. Mr Grzinic said to Mr Graevinghoff that he owed a duty of care to passengers boarding his bus, and that the company’s policy was that children should never be left behind. He said that, even though Mr Graevinghoff had not told the girl to leave the bus, he had in effect encouraged her to do so, thereby placing her at risk and damaging the company’s reputation. Towards the end of the meeting, Mr Graevinghoff offered to resign but, as Mr Graevinghoff said in his evidence, he changed his mind, because he believed that he had done nothing wrong. The meeting concluded. Later that day, Mr Grzinic called Mr Graevinghoff and told him that he had decided to terminate his employment, effective that day. The decision was later confirmed in writing. The termination letter dated 5 October 2021 summarised the discussion at the meeting on 1 October 2021 and stated that the decision had been taken to terminate Mr Graevinghoff’s employment immediately for serious misconduct, and that his conduct on 26 September 2021 had created a risk to the safety of a minor and to the reputation of the company.

[11] Mr Graevinghoff gave evidence that he was aware of the company’s nationwide policy not to leave minors on the side of the road, but that he had not realised that the girl was a minor, and that she had appeared to him to be a university student of around 18 or 19 years of age. He said that if he had known that the girl was a minor, he would have insisted that she board the bus. Mr Graevinghoff said that there was no one on his passenger manifest for Epping Forest, so there was no reason for him to stop, but he saw a person waiting and decided to pull over. He also said that he had not been trained on what to do in the circumstances in which he found himself in Epping Forest that night, and that no one had ever told him that a Calows ticket was good for travel on a Redline bus.

[12] As to the question of insurance, Mr Graevinghoff gave evidence that in the course of his training at his former employer Transdev in Sydney, he was told that passengers had to have a valid ticket in order for a driver to be covered by the company’s insurance in the event of an injury and that he had understood that the same applied at Redline. Mr Grzinic’s evidence was that there was no such requirement at Redline. Mr Graevinghoff acknowledged that no one at Redline had ever told him that such a rule existed; it had been his assumption that there was such a rule.

[13] Mr Graevinghoff said that a number of days before the incident at Epping Forest, he had had a similar situation in Campbell Town, when three boys without a booking had wanted to travel to Hobart. Mr Graevinghoff had called his manager in Launceston, Mr Craig Northrop, who had told him to process three student fares and take them to Hobart. The boys had not had any money, so Mr Graevinghoff paid the fares himself, which the company later reimbursed.

[14] Mr Graevinghoff said that on 30 September 2021, Ms Leslie Hall, the company’s manager for people and culture, sent a memorandum to driving staff reminding them about the duty of care to minors, and stating that drivers would now be required to sign a log stating that they had read and understood the memorandum. The document stated:

“It is a requirement for all drivers to understand that any minor is to never be left stranded at a bus stop, regardless if they are booked as a passenger or not.

If in any doubt about loading of a minor, be it due to a ticketing issue, left unsupervised at a stop, please contact the local area manager … for direction.

IT are currently working on a solution on fail to loads to enable the driver to correctly record and enable reselling of seats on a route via the ticketing app onboard the Intercity coaches, further details will be communicated upon successful testing and implementation.”

[15] Mr Graevinghoff said that this memorandum was clearly a response to the incident on 26 September 2021 and that it was the first written policy he had seen about these matters.

[16] Mr Graevinghoff said that he did not tell the girl that she could not travel, and that in fact the girl was adamant that she would not travel and would instead call someone to pick her up. He said that it had been his priority to get the girl on the bus and that if anything, the girl ‘coerced him’ by leaving the bus. Mr Graevinghoff said that he believed he had acted appropriately and had not done anything wrong. He said that contrary to what was said in the termination letter, he had not told the girl that, although there were presently two vacant seats on the bus, she might have a problem if the ‘no show’ passengers from Perth got on the bus later, and that this was simply an observation that he had made to Mr Grzinic in the meeting on 1 October 2021.

[17] Mr Graevinghoff said that the media coverage of the incident had portrayed him in a negative and unfair light. He said that, far from refusing to allow her to travel, he had tried to have the girl board the bus, but that he could not compel her, and she had decided not to travel. He said that contrary to the newspaper report, the girl was not crying after she left the bus. Mr Graevinghoff said that he believed that the company’s decision to dismiss him was a reaction to the negative media attention that the incident had attracted. He considered that the main problem had been with the ticketing system, because the girl was not on the manifest, and when he tried to sell the girl a Redline ticket it would not let him do so.

[18] Mr Graevinghoff said that he had been a good and loyal employee of the company during his nearly three years of service and had always gone above and beyond his duties to ensure that passengers were looked after. He said that he had been embarrassed by the incident and that instead of being supported by the company he had lost his job over an incident that was not his fault.

[19] Mr Grzinic gave evidence that the company considered a child being left behind as a very serious matter. He said that the company’s policy was that no child should ever be left behind and that this was made clear to drivers from the commencement of their employment. He said that during the meeting of 1 October 2021, Mr Graevinghoff had said that the girl had decided not to travel, and that he had believed the girl was 18 or over. Mr Grzinic said that this was a dangerous assumption to make and that also, according to Mr Graevinghoff, when the girl had shown him her ticket, she had mentioned that she was a student. Mr Grzinic said that Mr Graevinghoff had recognised that there was some risk to the girl’s safety, waiting alone at a remote bus stop in the dark on a Sunday evening, because he had suggested to her that she should wait in the roadhouse. Mr Grzinic said that Mr Graevinghoff had clearly considered that it was more important to sell the girl a ticket than to ensure that a minor was not left behind. In this regard, he said that Mr Graevinghoff had mentioned during the meeting that it was his understanding that passengers were required to pay for their ticket in order for the company’s insurance to cover him as the driver, but that this was not the case, and he did not know why Mr Graevinghoff would have thought this.

[20] Mr Grzinic gave evidence that there had been an earlier instance of Mr Graevinghoff having left a minor behind. He said that on 6 March 2021, Mr Graevinghoff had driven past a girl at a bus stop in Westbury. The girl had called the depot and made a complaint. Mr Graevinghoff then returned to collect her. Mr Graevinghoff’s evidence was that the girl had not waved to him to stop, and he had not realised that she wanted to board the bus. I accept his evidence about this matter.

[21] As to the ticketing, Mr Grzinic said that bookings for a mixed Calows – Redline service required a booking with each company, and that his inquires of Calows had revealed that the Redline ticket that Calows had booked for the girl from Epping Forest to Hobart was mistakenly made for the following day. The Calows ticket was valid, but it did not appear on Redline’s system for 26 September 2021. The girl’s ticket was tendered in evidence. It showed a boarding day of 26 September 2021 from St Helens to Hobart. The ticket type was ‘Under 18 Student 1 x 1.80AUD’. Mr Graevinghoff said that, because he did not have his reading glasses on, he could not make out these details; all he could read was the Callows logo at the top of the ticket.

Findings

[22] I make the following factual findings. First, I find that the company has a policy that no minor should ever be left behind. It is an oral policy on which all drivers are instructed when they take up employment with the company. Mr Graevinghoff acknowledged in his evidence, and told Mr Corey Slade prior to the dismissal, that he was aware of the company’s policy that minors should never be left at the side of the road.

[23] Secondly, I find that although Mr Graevinghoff did not tell the girl that she could not travel, he discouraged her from travelling. Based on Mr Graevinghoff’s own evidence of what occurred at Epping Forest, I consider that Mr Graevinghoff conveyed to the girl that there was a problem, namely that she did not have a valid ticket, and that he could not sell her a valid ticket, because the system was showing the bus to be full. I accept that Mr Graevinghoff told the girl that he would call his manager, and that the girl replied that she would call someone to collect her. But he should not have left it up to the girl to decide whether he should do. Had he called his manager, he would have been directed to tell the girl to board the bus. Mr Graevinghoff’s statement that he could not physically force the girl to stay on the bus misses the point. He should have encouraged her to remain on board, instead of leaving her with the impression that there was a problem. He could have told her that there was no problem; he could have said that the company’s clear policy was never to leave a minor behind, and that he wanted her to travel; or he could have told her just to take a seat and to forget about the ticket.

[24] The fact was though, that Mr Graevinghoff was concerned that the girl did not have a ticket. He believed that he would not be covered by the company’s insurance unless she had one. This was an erroneous belief. No one at Redline had ever suggested to him that this was the case. In my opinion, Mr Graevinghoff’s mistaken belief about this matter made him reluctant, or at least hesitant, to have the girl remain on the bus without a Redline ticket. I reject Mr Graevinghoff’s evidence that his priority was to get her on the bus. Had this been his priority, I consider that the girl would have remained on the bus. Instead, I consider that Mr Graevinghoff’s priority was to sell the girl a ticket. Mr Graevinghoff said in his evidence that he did not believe that his actions had led to a child being left behind. He is wrong about this. In my assessment, Mr Graevinghoff appreciates on some level that he should have done better; he said in his evidence that if he had his time again, he would have had the girl sit in the COVID seats behind the driver.

[25] No conclusion can safely be drawn about the girl’s actual state of mind when she stepped out of the bus that evening. It would be wrong to rely on a newspaper report that quoted the girl as saying that she had been reduced to tears after leaving the bus, or to accept Mr Graevinghoff’s theory that she had actually wanted to be driven to Hobart by her mother. It does not actually matter whether the girl was content to leave the bus or not. The company’s policy is that no child is to be left behind. The policy does not say that a child must not be left behind unless the child is happy to be left behind. Such a policy would make no sense. I reject Mr Graevinghoff’s assertion in his witness statement that the girl ‘coerced him’ by not boarding. It reflects a lack of insight into the fundamental point that minors are to be treated with special care, and that Mr Graevinghoff was in a position of authority over, and responsibility for, a young passenger.

[26] I do not accept Mr Graevinghoff’s evidence that, because there was no passenger listed on the manifest for boarding at Epping Forest, there was no reason for him to stop. The company’s services take bookings as well as hail and ride passengers. Mr Graevinghoff did not dispute this. He said that bookings were much more common. But the fact is that a person waiting at the boarding point in Epping Forest gave Mr Graevinghoff a reason to stop. He was not somehow doing the girl a favour by pulling over.

[27] Finally, I find that Mr Graevinghoff’s actions on the evening in question were contrary to the company’s policy that no child be left behind. I accept Mr Graevinghoff’s evidence that he thought the girl was 18 or 19, but this belief should have prompted him to ask her age, or, as the company said, to err on the side of assuming that she was a minor. In my view, it is a matter of common sense that one should assume that a person who might be a child is a minor. In this regard, I note that Mr Graevinghoff had proposed to sell the girl a $1.80 ticket, which is a fare for persons under the age of 18. And the ticket that the girl showed to Mr Graevinghoff stated that she was under 18.

Was there a valid reason for dismissal?

[28] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable (s 385(b)). In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387.

[29] The Commission must consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (s 387(a)). A valid reason is one that is sound, defensible or well-founded. The Commission does not stand in the shoes of the employer and determine what it would do in the employer’s position. The question the Commission must consider is whether there was a valid reason for dismissal, in the sense both that there was a good or sufficient reason, and a substantiated reason.

[30] In my opinion, the company had a valid reason for dismissing Mr Graevinghoff, because he failed to abide by the policy that no child should ever be left behind. Mr Graevinghoff did not dispute that he was required to comply with the policy. It constituted a lawful and reasonable direction in relation to a serious matter. Mr Graevinghoff was required to comply with the direction under his contract of employment. Mr Graevinghoff did not comply with the direction on the evening of 26 September 2021, because a girl was left behind.

[31] Mr Graevinghoff said that he did not know that the girl was a minor, but yet he tried to sell her a minor’s ticket, and believed she was perhaps 18. The ticket that the girl presented to Mr Graevinghoff also stated that she was under 18, but Mr Graevinghoff did not see that, because he did not have his glasses on. Mr Graevinghoff should have either known her age or asked her age. Further, as I have explained above, Mr Graevinghoff discouraged the girl from boarding the bus. He told her that she had the wrong ticket. He conveyed to her that there was a problem, because the system would not produce a ticket for her. But none of this mattered, because no child is to be left behind. Mr Graevinghoff prioritised selling the girl a ticket, because he was concerned about his insurance. This was contrary to the policy. Boarding a minor is always the priority. In my view, observance of the policy was particularly important that evening, because the location was a remote one, and the girl was standing alone in the gathering darkness.

[32] The fact that the girl may have appeared content not to board the bus might simply have reflected an attitude of diffidence towards an adult. She should not have been placed in the position of believing that there was a problem with her boarding the bus. Mr Graevinghoff should have said to the girl that there was in fact no problem at all with her travelling. It seems highly unlikely to me that, had he done so, the girl would not have boarded the bus.

[33] Mr Graevinghoff said in his reply statement that he was just about to get out his telephone and call the depot when the girl said to him that she would get a lift, and happily left the bus. To my mind, this demonstrates that Mr Graevinghoff knew that he should have called the depot. Earlier in the journey he had radioed base to advise that two passengers had not boarded in Perth. There was clearly no problem with contacting the depot that evening. And a number of days earlier he had radioed the depot about how to deal with the three boys who did not have the correct money for a fare.

[34] I take note of the fact that the policy that no child is to be left behind was not recorded in writing. But Mr Graevinghoff acknowledged that the policy existed and that he understood it. He knew that a minor must never be left by the side of the road. What is important is that an employer’s policy be well understood, not necessarily that it be in writing.

[35] In considering whether there was a valid reason for dismissal for the purpose of s 387(a), it is not necessary to demonstrate that an employee’s misconduct was sufficiently serious to justify summary dismissal (see Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 (Sharp) at [32]). The seriousness of the conduct and the proportionality of the decision to dismiss Mr Graevinghoff and to do so summarily are matters I shall consider further below in the context of s 387(h).

Other considerations in s 387

[36] The Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their conduct or performance (ss 387(b) and (c)).  The question of whether an employee has had an opportunity to respond to allegations should be approached in a common-sense way, with the focus on whether the employee was treated fairly, rather than on any formality.

[37] Mr Graevinghoff was clearly notified of the reasons for dismissal. He contended however that he was denied an adequate opportunity to respond to those reasons. I disagree. The reasons for the meeting on 1 October 2021 were notified to Mr Graevinghoff; those reasons were ultimately the reasons for dismissal. Mr Graevinghoff had the chance to prepare for the meeting in advance and had a meaningful opportunity to put forward his version of events. In my view, Mr Graevinghoff received an adequate and fair opportunity to respond, for the purpose of s 387(c).

[38] The company did not refuse, unreasonably or otherwise, to allow Mr Graevinghoff to have a support person present to assist in discussions relating to the dismissal (s 387(d)). He was accompanied by Ms Simonetis to the meeting on 1 October 2021. It appears that Ms Simonetis may have wished to play a more active role in the meeting, but it is not the role of a support person to be an advocate. Section 387(d) contemplates a ‘support person’ being ‘present’, rather than an advocate or representative taking an active role.

[39] If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about that unsatisfactory performance prior to dismissal. The reason that I have found to be a valid reason for dismissal was Mr Graevinghoff’s failure to comply with the policy. I do not regard it as a question of performance; it relates to conduct. In any event, the absence of a warning for such conduct would not alter my conclusion below as to the appropriate disposition of this matter.

[40] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss 387(f) and (g)). The company is not a small employer and has dedicated human resources specialists. However, these factors do not ‘raise the bar’ for a larger employer. Rather, in respect of smaller employers with little or no internal human resources capability, less might be expected in relation to procedural elements of a dismissal. In my view, these considerations carry little weight in the analysis of whether the dismissal was unfair in this case.

[41] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account any other matters that it considers relevant (s 387(h). The Commission should consider all of the circumstances, and weigh the gravity of any misconduct, poor performance or other circumstances telling against a conclusion that a dismissal was unfair, with any mitigating circumstances and other relevant matters that might support the applicant’s claim that the dismissal was harsh, unjust or unreasonable.

[42] I take into account Mr Graevinghoff’s evidence of the adverse effect of his dismissal, including its financial, social and psychological dimensions. I also take into account the fact that Mr Graevinghoff had worked for the company for some three years and for most of that time had had a good record. On the other hand I consider that Mr Graevinghoff lacks insight into the incident, because he believes that he did nothing wrong. Mr Graevinghoff is a sincere and well-meaning man who clearly enjoyed his job and had concern for his passengers, but on 26 September 2021 he made serious errors of judgment that placed a minor at risk and jeopardised the company’s reputation. He breached the company’s policy that no child is to be left behind. Mr Graevinghoff pointed to alleged safety risks posed by various company practices, but these allegations are not substantiated, and are not relevant to the current circumstances. Mr Graevinghoff suggested that the waiting stop in Epping Forest was not in a safe place, but it was not the company that determined the location of the waiting place, and if the place is unsafe, it only underscores the importance of ensuring that anyone who is or might be a minor waiting at the stop actually boards the bus. Mr Graevinghoff should have actively encouraged the girl to remain on the bus. He should have told her to take a seat. He did not do so. She was left at the side of the road.

[43] An important consideration is whether a decision to dismiss an employee was proportionate, and, if an employee was summarily dismissed for serious misconduct, whether this was warranted. Serious misconduct can arise from a breach of an essential term of the contract of employment, a serious breach of a non-essential term, or conduct manifesting an intention not to be bound by the contract in the future (see Ryman v Thrash Pty Ltd [2015] FWCFB 5264 at [27]). The incident that occurred on 26 September 2021 was a serious matter. It constituted misconduct and a valid reason for dismissal. In my view it also constituted serious misconduct, because it involved a breach of an essential term, or a serious breach of a non-essential term of the contract of employment, namely the obligation to comply with the direction that no child is to be left behind. At issue here is first and foremost the safety of the travelling public who are minors, and secondarily the reputation of the company. Both were put at risk by Mr Graevinghoff on 26 September 2021. Dismissal was a proportionate response.

[44] However, while the company was contractually entitled to dismiss Mr Graevinghoff without notice, I consider that the decision to do so in this case, whilst not unjust or unreasonable, was harsh, because the company’s own ticketing system played a role in the incident. Had the booking system accounted for the fact that two passengers had not boarded in Perth, Mr Graevinghoff would have been able to sell the girl a new ticket, and the girl would not have been left behind. Had Redline’s system interacted with that of Calows, it might have picked up Calows’ mistake in booking the second leg of the girl’s journey on the following day and avoided the situation that arose on the evening of 26 September 2021. These matters do not excuse Mr Graevinghoff’s conduct, but they are important contextual considerations.

[45] As to an appropriate remedy, I am satisfied that reinstatement is inappropriate, because the extent of the harshness is confined to the decision not to give or pay notice. I consider that payment of compensation is appropriate in all the circumstances (s 390(3)). Compensation is intended to provide a person who has been unfairly dismissed with reparation for losses reasonably attributable to the unfair dismissal, which in this case is a payment equivalent to what would have been the relevant notice period, namely 3 weeks’ pay (two weeks for having between two and three years’ service plus an additional week for being over 45), less taxation as required by law. The precise amount should not be controversial. If it is, the parties may request a further listing of the matter, whereafter I will make an appropriate order.

DEPUTY PRESIDENT

Appearances:

D. Graevinghoff for himself
P. Harris for Kinetic (Tasmania) Pty Ltd

Hearing details:

2021
Melbourne (by Microsoft teams)
14 December

Printed by authority of the Commonwealth Government Printer

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