Fair Work Act 2009
s.394—Unfair dismissal

Martin Brett
v
Transit Australia Pty Ltd
(U2022/3068)

Application for an unfair dismissal remedy – whether the Applicant was not unfairly dismissed – Applicant was not unfairly dismissed.

[1] Mr Martin Brett (the Applicant) contends he was unfairly dismissed by Transit Australia Pty Ltd trading as Marlin Coast Sunbus (the Respondent/Sunbus), for whom he had worked as a full-time holiday relief driver since 13 August 2018. He seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] As the matter could not be resolved by conciliation, directions were issued for the filing of material. A hearing was listed for 18 July 2022, at which both parties sought to be represented. Neither party objected to representation. Even so, I was still required to consider whether permission ought to be granted under s.596 of the Act. Given the volume of evidence and submissions provided by the parties and the nuanced legal arguments involved in considering whether the Applicant’s dismissal was unfair, I was satisfied that it would be of use to the Commission – and would not unduly prejudice either party. I was satisfied that the present case is one in which both parties and the Commission would benefit from the assistance of legal representation to allow for the efficient conduct of the case. Accordingly, both parties were granted permission to be represented. Ms Dalton-Bridges of the Transport Workers’ Union (the TWU) represented the Applicant, while Mr Popple of Herbert Smith Freehills appeared for the Respondent.

[3] Section 396 of the Act requires that I be satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed, and I am satisfied, that the Applicant made his application within the 21-day period required by s.394(2) of the Act, that he was a person protected from unfair dismissal (as he earned less than the high-income threshold), that his dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.

BACKGROUND

[4] On 27 November 2021 at approximately 3:00pm, the Applicant was driving a scheduled route and made a stop at a regular bus stop where three boys between the ages of eight to ten years were waiting. The children had been passengers on previous journeys, and the Applicant believed that this was their home stop.

[5] One boy entered the bus and stood beside the ticketing machine. The Applicant observed that this boy had a metal rod about the length of a pen in his hand before he entered the bus, which he concealed in his pocket upon entry. The second boy was swinging on the bus doors, and the third boy was outside of the bus.

[6] The boy standing beside the ticket machine stated the boys had no money for a fare, but they wanted to go to a nearby shopping centre. The Applicant responded that he would not take them as there was no adult accompanying them and asked if they had an older sibling to accompany them. He suggested that they could wait for the next bus which may have other passengers on the bus. He also suggested they could walk to the shopping centre as it was not too distant. There was a four-to-five-minute discussion between the Applicant and the children, before the children eventually decided to leave the bus. As the Applicant closed the bus doors, one of the boys pressed the emergency exit door button which opened the door. The child with the rod launched the rod which struck the driver’s side window.

[7] The Applicant called the Respondent’s base office for further instructions. The Respondent’s base office instructed him to wait for Sunbus’ response team, who were only a few minutes away. Whilst waiting, the Applicant exited the bus to see if the boys went to get an older relative. Once the Respondent’s response team arrived, the bus was checked. The Applicant then continued his scheduled run and returned to the Respondent’s depot. The Applicant did not complete his shift because of the incident.

[8] Following the incident, the Applicant lodged a WorkCover application and did not attend work until 17 February 2022.

[9] Upon his return to work on 17 February 2022, the Applicant was stood down as a consequence of the incident.

[10] Relevant to this incident, the Respondent had a ‘no child left behind’ policy (the Policy), which the Applicant was aware of.

[11] On 23 February 2022, the Applicant attended a meeting with Mr Robert Matthews, Sunbus Cairns Manager, Ms Jacki Crosby, Sunbus Cairns Driver Manager, and Mr Craig Hards, TWU Cairns Organiser. CCTV footage of the incident was exhibited, and the Applicant was invited to provide his view of what had happened.

[12] Following a break in the meeting, the Applicant was informed that he would be dismissed for serious misconduct.

THE APPLICANT’S SUBMISSIONS AND MATERIAL

[13] The Applicant gave evidence on his own behalf at the hearing. He also called Mr Craig Hards, the TWU Cairns Organiser, as a witness.

[14] The Applicant did not dispute the facts of the incident which occurred on 21 November 2021. However, the Applicant submitted that his actions did not constitute a breach of his responsibilities as alleged by the Respondent, and if they did, the matters were not so serious as to warrant the termination of his employment for serious misconduct.

[15] The Applicant did not accept there were errors in his conduct, and as such, the termination of his employment was not appropriate nor justified. Rather, the Applicant submitted his dismissal was harsh, unjust, and unreasonable.

Submissions regarding the Applicant’s fear for his safety

[16] The Applicant argued the termination of his employment was unreasonable, as he acted out of fear for his own health and safety. The Applicant was concerned about the metal rod one of the boys had in his possession, which he believed could be used as a weapon. Further, the Applicant felt his safety was at risk by allowing the three boys on the bus, as there were no other adult passengers onboard. He believed that if they became unruly, he could not supervise them whilst the bus was travelling.

[17] Seeking to justify or validate his fear, the Applicant’s witness, Mr Hards, annexed to his statement an article published by the ABC on 6 July 2022, reporting on the TWU’s concerns about robberies, threats, and antisocial behaviour on cashless buses in Cairns.

[18] The Applicant asserted the Respondent had a duty of care towards the Applicant pursuant to Work Health and Safety Act 2011 (Qld) s.19. However, the Respondent did not have regard for his health and safety as an employee. Rather, they focused on the three boys and the fact he did not allow them to travel on the bus. When one of the children threw the metal rod that hit the window, it could have struck him and caused an injury. Despite this, the Respondent saw fit to discipline the Applicant rather than concern themselves with his safety. The Applicant points to the Respondent’s comments to WorkCover – “that he was avoiding disciplinary action” – as supporting his view that the Respondent had pre-judged the situation and simply wanted to dismiss the Applicant.

[19] The Applicant submitted that the Policy is not lawful or reasonable where it endangers the employee’s life or health, or in circumstances which the employee reasonably believes their life or health could be in danger.

[20] The Applicant contended that as his actions were motivated out of a concern for his own safety, and the safety of the children, his actions during this incident did not repudiate his employment contract or amount to summary dismissal.

Submissions regarding allegation of leaving children behind

[21] The Applicant stated that he did in fact stop for the children, and that he remained at the bus stop whilst talking with them. When the Applicant determined the situation was unsafe, he then contacted the Respondent’s base and remained at the bus stop until Sunbus’ response team arrived.

[22] The Applicant distinguished several recent anecdotal cases where children were left behind by transport drivers and argued that in this matter, no child was left behind as he remained at the bus stop until authorised by the Respondent to continue on his scheduled run.

[23] For this reason, the Applicant submitted that the termination was unjust, as the children were not left behind; rather, they elected to exit the bus and leave the bus stop of their own accord. The Applicant stated he followed procedures, and only moved the bus on once the Respondent’s team had approved his departure, at which point there were no children at the bus stop.

[24] The Applicant noted he did indeed attempt to deescalate the situation and provided a number of alternative actions for the children – they could get an adult to accompany them on the bus or they could walk to the shopping centre in a more direct way.

Submissions regarding reasonableness of the Policy

[25] The Applicant asserted that the Policy is poorly considered and ill-conceived. The Applicant noted that the TWU could find no other transport operators who have adopted this Policy.

[26] In support of his view regarding unaccompanied children, the Applicant referred to the Criminal Code Act 1899 (Qld) s.364A (the Criminal Code), Queensland Rail’s policy regarding not carrying unaccompanied children under 12 years of age, and the NSW Government’s declaration that states that children under the age of 12 cannot travel on public transport alone. The Applicant’s witness, Mr Hards, annexed to his witness statement the Queensland Government’s Code of Conduct for School Students Travelling on Busses. The Applicant asserted that while the Respondent has a Policy that no children are left behind, this Policy is inconsistent with the policies of other transport providers within Queensland or interstate, and with the Criminal Code.

[27] The Applicant referred to the Sunbus Drivers Handbook (Version 5) (the Handbook), the Applicant noted that the Handbook deals specifically with children being transported as part of a school service. The Applicant asserts that there are no instructions to bus drivers provided in the Handbook about what to do when children are not travelling as part of a school run or outside school hours. Nonetheless, the Applicant submits that he complied with the process of notifying the Respondent’s base, as required by the Handbook. The Applicant specifically referred to a table provided in clause 3.1 of the Handbook, which states:

[28] Further, the Applicant submitted that the Policy may lead to children being taken away from home and into situations that may be possibly risky.

[29] Finally, the Applicant asserted that the Policy should not be followed in dangerous situations where the employee’s health and safety is at risk.

Submissions regarding procedural fairness

[30] The Applicant contended there was a lack of procedural fairness, because only one 30-minute disciplinary meeting was conducted. The Applicant was not presented with an opportunity to discuss why he should not be dismissed, or an opportunity to respond to the allegations. 1

[31] Further, the Applicant believed Mr Robert Matthews had a prejudice against him which affected his decision-making. The Applicant believes Mr Matthews had judged him negatively prior to the incident. The Applicant had never had any performance issues in the three years of service, and during the period of his service he previously transported unaccompanied children.

[32] The Applicant submits that Mr Matthew’s prejudice manifested itself during his cross-examination,

“… Yes, okay. At that particular time, and as I have indicated, it was my recollection of the conversations with a base of it. I do not recall the specifics of what the entire conversation was. However, indicated here is, Mr Brett has said ‘the young daughter and the mother that complained.’ I do not recall that specific being mentioned, however, my general overview of the conversation was that Mr Brett was against (indistinct) travelling with children under the age of 16.

How many conversations had you had with Mr Brett about that?  -I cannot specifically recall. I believe it was definitely the one, and I do recall a separate discussion in glancing, in passing as, you know, it’s happened again sort of thing, but I do not specifically recall dates and times.

If I understood that correctly to mean that you think there were more than one conversations of that type?  -In that vein, yes. Maybe not as detailed as what has been indicated in my statement, and also in Mr Brett’s response. However, I do recall having a discussion with him on that one occasion, without the full context, and also it had come through in passing from memory and recollection.” 2

[33] The Applicant further submitted that dismissal was harsh, unjust, and unreasonable as he is a gentleman of senior years and the termination of his employment caused financial hardship to him, especially given his age, and the fact that he remains unemployed and is unlikely to find employment.

[34] The Applicant submitted he has been a dedicated and responsible employee of the Respondent as a full-time holiday relief driver based at the Smithfield Depot in Cairns for three years. Until this incident, he had not had no previous conduct or performance issues.

THE RESPONDENT’S EVIDENCE AND MATERIAL

[35] The Respondent submitted that it had a valid reason for dismissing the Applicant, as the Applicant engaged in conduct that was in breach of the Handbook. The Applicant chose to engage in a course of conduct where he refused to accept three children as passengers and as a result put the children, himself, and the vehicle at risk. The Applicant had received training and was aware of the Respondent’s expectations and the conduct required of him, which was refreshed annually. Nonetheless, the Applicant made a deliberate choice to refuse to carry the children and provided a series of invalid and plainly incorrect views of the laws regarding carriage of children.

[36] The Respondent contended that the Applicant’s decision to refuse the three children carriage created a situation where they were left behind; and in the course of so doing, he acted in a manner that escalated the situation and failed to meet the professional standards expected of Sunbus drivers. Further, the Applicant’s misconduct caused one of the children to become agitated and throw the rod. This reaction does not vindicate the Applicant’s actions, rather, demonstrates how the Applicant’s inappropriate conduct and deviation from the Policy caused the child to become increasingly agitated. The Respondent asserts that serious misconduct was the logical conclusion of the Respondent following an investigation.

[37] The Policy regarding the transporting of children is addressed in the Handbook and specifically states:

“Protecting Children

The Company is committed to ensuring all reasonable efforts are made to protect children (those aged 18 and under). You must behave in an appropriate manner when working around children and you are never to put children in a situation where they are at risk of harm. Therefore, it is mandatory that Bus Drivers never leave a child behind under any circumstances regardless of whether they are able to pay for a fare or not. Even if the Driver is uncertain of the customers’ age, let them on anyway.”

[38] Further, Kinetic, the parent company of Transit Australia Pty Ltd, has a Code of Conduct that states:

“As an employee of Kinetic we demonstrate a personal commitment to protect the health and safety of children (including school students) by:

•  never leaving children behind.

•  if we are uncertain of a person’s age, giving them the benefit of the doubt and let them on the bus.

•  never acting in a manner that may be perceived as being aggressive, intimidating or rude; and

•  never put children in a situation where they are at risk of harm.”

[39] In response to the Applicant’s allegation of procedural unfairness, the Respondent submitted that the process by which Sunbus made the decision was procedurally fair, and further, that procedural fairness had been extended to the Applicant. The matters put forth by the Applicant did not render the dismissal harsh, as the Applicant’s conduct was a wilful choice to disregard a fundamental policy of the Respondent. The Policy was documented, and the Applicant had received training and signed that he had read and understood the Policy. The Respondent submits any other matters raised by the Applicant are not sufficient to render the dismissal harsh.

[40] Regarding the Applicant’s assertion that s.364A of the Criminal Code applied to the circumstances, the Respondent submitted that that section fits within the part of the Criminal Code that deals with the obligations of parents and carers with respect to the children that they are in supervision of. The relevant section creates an offence where a parent or carer leaves a child under the age of twelve unaccompanied for an unreasonable period of time without making provision for supervision. The Respondent asserted that this clause has no relevance to this matter, as the Applicant was not a parent or carer of the three children, and it has no relevance to the policies of the Respondent in this matter.

[41] The Respondent submitted that the Applicant’s justifications of his actions should not be accepted, as there was no sensible reason for him to have any apprehension about his safety, nor any basis for deviating from the Handbook requirements and expectations. The Respondent asserts that the Applicant’s view of what had occurred, which he explained during the meeting on 23 February 2022, and his apparent belief that his breach of the Policy was minor, shows that he fails to appreciate the gravity of the incident.

[42] The Respondent asserted that the Applicant’s response is an overreach and plainly a wrong application of the Code. The Applicant is attempting to call into question the reasonableness of the Policy with a poorly judged and clearly incorrect application of the Code.

Evidence of Robert Matthews

[43] Mr Roberts is the Manager for Cairns and has oversight of the Sunbus Portsmith and Smithfield Depots. He is primarily responsible for all Sunbus Cairns financial reporting and budget controls. He has 13 direct staff and overall management of 147 bus drivers in the Cairns region.

[44] The Respondent employs five Operations Controllers who are required to manage incident response calls made by the drivers. These Operational Controllers act as the ‘first line’ of responders to advise bus drivers on everything from safety protocols, policies and procedures, service issues, navigation issues, and assist in the drafting of incident reports

[45] The Incident Reports contain:

(a) information relating to the relevant Bus Driver, route and trip;

(b) a description of the incident as reported by the Bus Driver;

(c) steps taken to manage the incident; and

(d) an overview of next steps

[46] There are three categories according to severity:

Category A: Relating to minor incidents, including for example minor driver abuse or a minor road accident.

Category B: Relating to more serious incidents, including for example, serious driver abuse or armed robbery; and

Category C: Relating to very serious incidents, including for example, a life-threatening road accident.

[47] The Applicant commenced employment with Sunbus as a Bus Driver based out of the Smithfield Depot in Cairns on 13 August 2018 and his employment conditions were governed by the Marlin Coast Sunbus Enterprise Agreement 2020 (the Agreement). The Applicant’s duties and responsibilities include the safe and effective operation of bus vehicles to transport passengers on route services. The Applicant was expected to conduct his role with a high level of customer service and follow the correct Sunbus policies and protocols.

[48] The Respondent’s drivers undergo a Driver Training Program when they commence employment. There is a one-day driver induction which include organisational information and are provided the key policies and procedures which includes the Sunbus Driver Handbook and the Kinetic Employee Code of Conduct. When Sunbus was acquired by Kinetic in 2019, the drivers were required to comply with the Kinetic Code of Conduct which was provided to existing and new drivers.

[49] The Respondent’s drivers also attend four days of classroom training. This includes topics relating to vehicle inspections; bus routes and services; ticketing processes; fatigue management strategies; customer service; bus driver rules and regulations governing carriage of passengers; the appropriate management of aggressive or disruptive customers and providing professional customer service to children of school age. Drivers also complete a series of learner assessment tasks, to test their knowledge on the training content.

[50] There are specific materials that address dealing with aggressive, unlawful, and disruptive behaviour and providing professional customer service to children of school age.

[51] The Respondent’s drivers are also required to complete ten days of supervised practical training which assists in gaining a better understanding of the practical aspects of the role such as interpreting road maps, navigating bus routes, and further assessments. The Applicant completed the Driver Training Program on 19 August 2018. Furthermore, drivers receive annual ‘refresher’ training. This training involves retesting bus drivers on the fundamentals covered in their induction training, as well as providing training on any new updates relating to applicable policies (including the Handbook and Code of Conduct), protocols and procedures.

[52] The Respondent asserts that refresher training included specific training on protecting children and de-escalation procedures to be followed by Sunbus bus drivers. This training affirmed Sunbus’ Policy to always stop and let children on the bus, even in circumstances where they do not have the correct fare. Further the de-escalation training was to emphasise that Drivers should always remain calm and be respectful towards passengers. It is noted that the Applicant completed this training refresher course on the 23 March 2021.

CONSIDERATION

Comments about the evidence

[53] The testimony of the Applicant was given in an evasive, self-serving manner. He justified and brought new allegations, that the children may have been affected by substances. I find this to be a wholly spurious allegation with not a scintilla of supporting evidence. The Applicant did not strike me as a witness of credit, rather someone who was perpetuating a justification that in the light of day, did not stand up. The Respondent’s witness presented in a straightforward manner. He was forthright in his answers and during cross examination made appropriate concessions when questioned on his evidence. He gave the impression of a manager who had familiarity with the business of providing a reliable public service with the accompanying challenges.

[54] The Applicant’s submissions regarding the Criminal Code are plainly an overreach on the Applicant’s part to ascribe the requirements under the Criminal Code to this situation, where it is in fact specific to the supervising adult or parent. I do not have regard to this proposition. Furthermore, the evidence of other transport companies and their policies regarding carriage of under 12 years of age is not informative. Railways are a very different form of transport and are not analogous to a bus line. The distances covered and area serviced are orders of magnitude different. In providing other bus transport policies these have been dealt with below under reasonableness.

Was the Applicant unfairly dismissed?

[55] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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);

(b) whether the person was notified of that reason;

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

(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;

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;

(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;

(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 Commission considers relevant.

[56] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 3

(a) whether there was a valid reason for the dismissal

[57] The reasons given by the Respondent for the termination of the Applicant’s employment was because:

(a) the Applicant acted inconsistently with his obligations under the Handbook and Code of Conduct;

(b) the Applicant was aware of these obligations, and his non-compliance might result in the termination of his employment; and

(c) the requirements of the Handbook and Code of Conduct were lawful and reasonable.

[58] The Applicant disputes that he engaged in the alleged conduct. The gravamen of the Applicant’s case is that his dismissal was not for a valid reason because:

(a) The Applicant acted out of fear for his health and safety;

(b) The Applicant did not leave the children behind, rather, the children left;

(c) The Policy is unreasonable; and

(d) The Applicant was not allowed procedural fairness.

[59] As Vice President Hatcher observed in Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning, establishing a factual basis for the reason for dismissal will not of itself demonstrate the existence of a valid reason. 4 It must, as s.387(a) makes clear, be a valid reason for dismissal. To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”5 and should not be “capricious, fanciful, spiteful or prejudiced.”6 As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity. Factually-established conduct which might, for example, justify the issue of a reprimand or a warning may not necessarily justify dismissal”.7

[60] In Bista, Hatcher VP referred to the decision of the Full Court of the Federal Court in Edwards v Giudice 8 as being authority for the proposition that the consideration of whether there is a valid reason for dismissal requires an assessment of whether the conduct was so serious as to justify termination as a sound, defensible or well-founded response.9

[61] In Smith v Bank of Queensland Ltd, Deputy President Asbury continued to consider Hatcher VP’s decision in Bista in the following terms:

“[125] Vice President Hatcher went on to observe that it is well established that a dismissal for misconduct may be found to be harsh on the basis that the sanction of dismissal is a disproportionate penalty to the gravity of the misconduct, and that the issue of proportionality is usually considered having regard to all relevant circumstances of the dismissed employee and his or her conduct. His Honour also noted that there is divergence in the authorities in relation to whether the gravity of the misconduct is considered separately from the factors subjective to the particular employee with the former consideration arising under s. 387(a) and the latter under s. 387(h). His Honour observed that proportionality of dismissal as discussed by Moore J in Edwards v Giudice, was not concerned with proportionality of dismissal in the sense where the gravity of the misconduct is weighed against a range of other potentially mitigating factors. Rather it was concerned with whether the conduct in question, considered in isolation, was intrinsically capable of constituting a valid reason for dismissal if it only involved a minor misdemeanour.

[126] I do not understand that there is a rule that the gravity of the misconduct must be considered under s. 387(a) devoid of any mitigating factors a dismissed employee may raise. While the gravity of the conduct must be considered and assessed, in my view, there are some mitigating factors which may also go directly to the validity of a reason for dismissal by mitigating the seriousness of the conduct for which a person was dismissed. Examples of some of these factors may be lack of training or the dismissed employee being placed under undue pressure by some failure on the part of the employer, which contributed to the conduct for which the employee was dismissed. Those matters may go to the reasonableness of the dismissal on the basis that they mitigate the gravity of the employee’s conduct. There are other mitigating factors which relate to personal circumstances of the dismissed employee and which may render the dismissal harsh, notwithstanding that the gravity of the employee’s conduct justifies dismissal. The first category of mitigating factors falls for consideration under s. 387(a) of the Act and the second category under s. 387(h).”   (citations omitted) 10

[62] All that said, it is not the role of the Commission to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.” 11 However, the Commission must consider the entire factual matrix in determining whether an employee’s termination is for a valid reason.12

Reasonableness of the Policy - ‘leave no child behind’

[63] The question of what is reasonable is a question of fact and balance; it is not material that a “better” direction may exist; a determination of what is reasonable must be assessed against factors relevant to the employment relationship. This was summarised in CFMEU v Glencore: 13

“[9] In Woolworths Ltd v Brown a Full Bench of the Commission observed as follows:

“In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties. (at [24])

...

What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT case, albeit in a somewhat different context, it is not the role of the Commission ‘to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.” (at [35])

[64] I have stated in the decision of Bou-Jamie Barber v Goodstart Early Learning 14 that:

“What can be considered reasonable will likely differ for each individual employer. So much is almost certain when considering the unique regulatory obligations and industry practices that an employer can face. This is only compounded by the case law, which provides that it is not the role of the Commission to interfere with the right of an employer to manager their own business. The choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness.”

[65] What is reasonable is a question of fact. In Briggs v AWH 15, the Full Bench relevantly stated: “the determination of whether an employer’s direction was a reasonable one…does not involve an abstract of unconfined assessment as to the justice or merit of the decision.” The direction must relate to the subject matter of the employment, which is informed by the “nature of the work the employee is engaged to do, the terms of the contract, and customary practices or the course of dealings between the parties.”16 The policy need only be reasonable, and it is immaterial that a “better” policy may exist.17

[66] I am satisfied that the Policy of not leaving children behind was reasonable for the following reasons.

[67] The service that Sunbus provides to the public is one that must be reliable, prompt, efficient and respectful to all members of the public that rely upon the public transport to undertake their work and recreation commuting activities. The heart of the service proposition is trust; trust that the service will arrive and depart on time and members of the public can rely on the service, that they will have clean and reliable transport and there is a measure of safety that they may use the service feeling comfortable and safe. This is the context around which the Respondent has determined to cast their Policy of leaving no child behind.

[68] The Respondent is entrusted with the provision of travel services for a wide variety of members of the public and there are many vulnerable members of the public that have an absolute reliance on the Respondent’s services. One such category of the travelling public are children; this is apart from the school services which are subject to separate contractual relations. The Respondent has, in fulfilling their obligation to transport children reliably and safely has decided on what they perceive to be the correct option and such a management prerogative is not to be lightly curtailed. It is not for the Commission to determine how Sunbus should organise its enterprise, or to find that the Policy is unreasonable due to the presence of a potentially more favourable approach.

[69] I am satisfied that ‘a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the Policy’. 18

[70] The Applicant did not act according to the requirements of the Code of Conduct or the Handbook. According to the Respondent’s submissions, he had been trained on a refresher basis on 23 March 2021. He refused service to the young passengers and argued with them providing a fictious rule that an adult must accompany them, to persuade and put a barrier to the children’s travel on the bus and effectively leaving the children behind.

[71] The Applicant had been given training in the classroom and had responded to hypothetical situations in a written assessment of the training which indicated that he was not only aware of the Policy of not leaving children behind, but had a practical understanding and knew that leaving a child behind was serious misconduct. 19 Further, he acknowledged and answered questions regarding treating passengers with tolerance, how to deal with aggressive or difficult passengers, and the appropriate de-escalation methods.20

[72] This rule that the Applicant adopted as a reason not to take them at the time does not hold weight. None of the training he underwent had a requirement that minors be accompanied by an adult. The additional requirements led by the Applicant in his submissions and evidence included an extract from various transport authorities that were not applicable, or from Queensland Rail, which also was not applicable. The Applicant had also not been employed by any of these bodies and so it is unlikely that there was some residual training effect that he relied upon to refuse carriage of the three children.

[73] The direction of the Applicant to the children, to leave the bus, was a deliberate action on his part and clearly a breach of the Handbook. The Applicant accepted that this direction was not consistent with the training he had received. 21 Furthermore, if I were to accept the Applicant’s argument that he felt unsafe, then he should have contacted base immediately, he did not do so.22 That the Applicant acted in a manner that was not courteous and did not utilise the techniques of defusing the situation further evidenced the Applicant’s deliberate actions contrary to the requirement under the Handbook.

[74] The children did leave the bus and there was some damage done to the bus when the metal rod was thrown at the driver. This was done after the Applicant had said “do you want me to call the police little man” Following multiple views of the CCTV footage I consider that the damage to the bus and the throwing of the rod would most likely not have happened had the Applicant abided by the policies of the Respondent. The children were misled by the Applicant, who maintained that an adult must accompany them. This put the children in a dilemma, which was wholly created by the Applicant. The requirement was clear from the Respondent that no child was to be left behind whether they had a fare or not. The Applicant created an erroneous reason which elevated the issue in the minds of the children and created a stand off – the Applicant further escalated by suggesting that he call the police – clearly not a de-escalating proposition.

[75] The Applicant also argued that the Policy was not reasonable, and that leaving no child behind was not appropriate in all circumstances, and in fact could endanger children. The Applicant postulated that taking the three children away from their home stop and to the shopping centre was an action that was potentially putting the children at risk. The Applicant believed he was correct in refusing carriage because he foresaw a possible risk. This argument is fallacious, as it is not the role of the Applicant or drivers to deny carriage on this basis, particularly when this incident occurred at approximately 3:00pm on a Saturday afternoon. There may be some weight to the argument that if the driver could foresee a risk to a child that they may take an informed view that a single child travelling away from home late in the evening is at risk and would then follow the appropriate policy – when a driver or passenger is at risk to contact the base office immediately.

[76] The Applicant sought to confuse the pellucid requirements under the Code of Conduct and the Handbook by referring to the Queensland School Bus Code of Conduct, which was not applicable in this matter. This was not a school service - it was a general passenger weekend service. The Applicant was not engaged in that part of Sunbus’ operation. The Code of Conduct and the Handbook were the relevant guide to how all children and adult passengers should be treated.

[77] While a substantial and wilful breach of a policy may constitute a valid reason for dismissal, 23 it does not follow that a finding that an employee has failed to comply with policies and procedures immediately means that a dismissal is not harsh, unjust or unreasonable. Every case turns on its own facts.24 If widespread policy breaches occur without response from the employer, this weighs against a decision that the dismissal was justified and not harsh, unjust or unreasonable.25

[78] As was observed by Lawler VP and Cribb C in B, C and D v Australian Postal Corporation [2013] FWCFB 6191 at [35]:

“A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”

[79] The Policy of not leaving a child behind was in writing and well known by the Applicant. His conduct in persuading the children to leave the bus for an erroneous reason, suggesting that an adult accompany them, whether done out of a false belief or whether being disingenuous, was wrong. The potential for violence was low, the children were travelling to the shopping centre, a common pastime, and it was mid-afternoon on a Saturday. The metal rod which the Applicant took exception to was indeed used inappropriately, the boy struck the bus several times and then threw the rod into the driver compartment. This was a response to the driver after he refused to carry the children and argued with the boys. Additionally needlessly threating them by saying he would call the police. His driver training had been to de-escalate situations and not to antagonise the passengers. I am satisfied that he deliberately did not follow the policies set down by the Respondent. That he phoned the base after the incident may have been to ameliorate the incident that the driver had created. In any event, I find that the Applicant wilfully and deliberately breached the company policy regarding children. He refused service and escalated the matter that then became an incident.

[80] I accept that a policy breach of this significance must be met with consequences from the Respondent. It is not my role to stand in the shoes of the employer. I am satisfied that the Respondent did have a valid reason to terminate the Applicant’s employment.

[81] This finding on its own is not the only matter to which I must have regard. It is but one matter to which I must have regard in determining whether the termination of the Applicant’s employment was harsh, unjust or unreasonable.

b) and (c) whether the person was notified of that reason and had an opportunity to respond

[82] I am satisfied that the Applicant was notified of the reason for his dismissal and had an opportunity to respond to the allegations. The Applicant was informed of the meeting and subject ahead of time. He had been on personal leave then WorkCover for a period of months immediately following the incident. Once the Applicant was cleared for a return to work, only then did the Respondent inform him of the investigation and the need to have a meeting to gain his side of the story. He attended the meeting with his union representative and was shown the video and asked for his reasons as to what occurred.

[83] There was a break in proceedings where the Respondent reflected upon the views and answers of the Applicant. After that, the Applicant and the union representative returned to the meeting and the decision of the Respondent was provided to the Applicant that he would be dismissed. The Applicant at the hearing argued that the process was perfunctory, with a 5-minute break for the decision to be made regarding the termination of his employment. The Respondent argued that the matter was clear cut, as he breached a fundamental rule in the Code of Conduct by refusing to carry the children. Therefore, summary dismissal was warranted.

[84] Mr Matthews was the decision maker, and it was asserted by the Applicant that Mr Matthews had pre-judged the matter and had already determined the outcome prior to the meeting. I find that this was not the case, Mr Matthews struck me as a witness of credit and answered questions forthrightly. In response to my question regarding this issue, he responded that he and the other manager, Ms Crosby, had reviewed the CCTV during the break in the disciplinary meeting and discussed the Applicant’s responses which in the end did not present any information that would contradict what was explicit on the footage. No mitigating circumstances were identified and the decision to summarily terminate the Applicant was clear to Mr Matthews.

[85] The concerns regarding the driver’s safety were not given much weight. In the Respondent’s mind, the child that boarded the bus with the metal rod was posing no danger to the Applicant. The body language and the posture of the child did not imply that there was any physical threat imminent or possible for the short journey that the Applicant was required to carry the three children. Having the benefit of viewing the CCTV footage, I am concur with the Respondent’s assessment that the potential risk was low and in fact the Applicant’s actions escalated the situation. In these circumstances an extended period for a show cause process would not have changed the outcome.

(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

[86] The Applicant was not unreasonably refused a support person.

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal

[87] This factor is irrelevant to the present case.

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

[88] The Respondent is an employer with human resources support. The Respondent followed its own procedures with respect to the information gathering process. The decision to terminate his employment was then made by the appropriate individuals. Whether they properly exercised their discretion is a matter considered in respect of other factors.

(h) any other matters that the FWC considers relevant

[89] The Commission is required to balance all the circumstances and consider whether it is satisfied that a dismissal was harsh, unjust, or unreasonable. A process of weighting the misconduct or poor performance with any mitigating circumstances and or other relevant matters that may act to make the dismissal harsh, unjust, or unreasonable.

[90] I have regard to the fact that the Applicant was of senior age and having a variety of different roles before coming to the Respondent’s workforce some three years ago. He stated he had expectations of keeping his role until retirement. The incident and the termination of his employment has had a significant impact on him.

[91] The Respondent’s view was that the Applicant’s actions were a deliberate departure from the procedures and was of a magnitude that it could no longer contemplate the Applicant’s continued employment.

[92] The Applicant claims he perceived a threat. He claims that he did not feel safe to carry the children and did not know their minds or what might occur. His concerns were partially borne out of his refusal to carry the three children, which led to the child mashing the exit with the bar and then throwing the rod at the driver. The argument that the Respondent holds to is that the child that displayed aggressive tendencies, was only enraged as a consequence of the failure to accept the boys as passengers, and that the Applicant’s actions in refusal caused the elevated emotions that were displayed as the children exited the bus.

[93] The role of the Applicant in driving a bus exposes him to the vicissitudes of passenger behaviour. Perhaps had the incident occurred late in the evening with three teenagers, the Applicant’s raising safety concerns may have been valid, assuming he followed this training and the relevant procedures, and his responses would be viewed differently. The Applicant is providing a service to the public and the standards of behaviours of the public towards employees providing services of carriage or indeed other public services, such as ambulance and hospital staff, have been brought into focus through campaigns to respect the service provider and for there to be a no tolerance policy to rude or threatening behaviour. I have sympathy for the Applicant who in the provision of driving the public may be exposed to unruly, or aggressive behaviours from some patrons, however he had been provided with comprehensive training and had been tested and given the procedures to manage himself in these situations. However, the three children that afternoon who wished to use the bus service were not in this category. I find that in reviewing the CCTV footage that the children were not displaying aggressive behaviours and had the Applicant followed the policy and procedures that this matter may have never transpired.

[94] The Respondent is charged with the carriage of the public in a safe and responsible manner and that the Applicant conduct himself in a courteous manner to all and if a difficult or disruptive situation evolved, the Applicant had been trained to deescalate the situation. The Applicant however deliberately chose to disobey a policy that held significance to the Respondent as a company that operated a bus company that provided services to the public including school children.

[95] A balanced, objective, and realistic evaluation of all the evidence including the CCTV footage relating to the incident and the comprehensive training program and the explicit documented policy of leaving no child behind leads me to conclude that the dismissal was not unfair or harsh. The gravity of leaving the children, albeit he persuaded them not to get on the bus, is significant and summary dismissal was warranted. The short period of service and the Applicants intransience in not accepting that he had breached a fundamental policy with no remorse and a lack of insight as to his behaviour in light of the policy did not assist him.

[96] Therefore, for the reasons given above, I am satisfied that the Applicant was not dismissed unfairly. I order that this matter be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR745220>

 1   Dover-Ray v Real Insurance Pty Ltd [2010] FWA 8544.

 2   Transcript of Proceedings, Martin Brett v Transit Australia Pty Ltd T/A Marlin Coast Sunbus (Fair Work Commission, (U2022/3068, Deputy President Lake, 18 July 2022) PN643–5.

 3   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 4   Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009.

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

 6   Ibid.

 7   Smith v Bank of Queensland Ltd [2021] FWC 4 [122].

 8   (1999) 94 FCR 561.

 9   Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009.

 10   Smith v Bank of Queensland Ltd [2021] FWC 4 [125]-[126].

 11   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

 12   Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

 13   Construction, Forestry, Mining and Energy Union v Glencore Mt Owen Pty Ltd [2015] FWC 7752, at [8]-[11].

 14   [2021] FWC 2156 at [309].

 15   Briggs v AWH Pty Ltd (2013) 231 IR 159, at [8].

 16   Michael King v Catholic Education Office Diocese of Parramatta T/A Catholic Education Diocese of Parramatta [2014] FWCFB 2194, at [27].

 17   Briggs v AWH Pty Ltd (2013) 231 IR 159, at [8].

 18   Woolworths Ltd v Brown (2005) 145 IR 285, 297 at [35].

 19   Transit Australia Pty Ltd, ‘Witness Statement of Robert Matthews’, Submission in Martin Brett v Transit Australia Pty Ltd T/A Marlin Coast Sunbus, U2022/3068, 8 July 2022, Annexure RM-7, 9, 40, 65

 20   Ibid Annexure RM-7, 39, 65, 67–9.

 21   Transcript of Proceedings (n 2) PN437.

 22   Ibid PN404, PN410–1, PN417.

 23   Browne v Coles Group Supply Chain Pty Ltd [2014] FWC 3670 [62]; citing B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 [36].

 24   B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 [48]; Lee v Superior Wood Pty Ltd [2019] FWCFB 2946.

 25   Ibid.