Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Amie Logsdon
v
Surfside Buslines Pty Ltd
(U2021/9103)

Application for an unfair dismissal remedy

[1] On 12 October 2021, Ms Amie Logsdon filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act). The Applicant was dismissed by Surfside Buslines Pty Ltd (the Respondent) on 22 September 2021 for alleged Serious Misconduct for engaging in inappropriate behaviour towards a passenger.

[2] The Respondent conducts a public transport business, and employed the Applicant as a Bus Driver from 29 April 2019 until her dismissal on 22 September 2021. The Applicant’s employment was covered by the Surfside Buslines Pty Ltd Union Enterprise Agreement (the Agreement).

Background

[3] A young adult male passenger stepped on to a bus being driven by the Applicant on 16 September 2021. The passenger did not pay his fare and sat in the seats reserved for disabled passengers. The passenger had a face mask pulled down under his chin. The Applicant asked the passenger to put his face mask on properly. The passenger asked whether it was mandatory. After being told that it was, the passenger claimed to have an exemption. The Applicant then asked why he was wearing a mask if he had an exemption to which the passenger replied that he had been visiting a friend in day surgery. The Applicant once again asked the passenger to please put his mask on. The passenger replied “F*ck off Karen”. The Applicant then advised the passenger he could get off at the next stop for verbally abusing her. At the next stop, the passenger refused to get off the bus. The Applicant contacted her control room and asked for the Police to be called and asked the remaining passengers to get off the bus. The passenger eventually got off the bus after stating that he was a law student and that the Police would not come. The Police attended but the passenger had caught the next bus before they arrived.

[4] The Applicant was dismissed for trying to enforce the Queensland Government mask mandate in breach of the Respondent’s Policy.

[5] The Applicant’s termination letter of 22 September 2021 provides:

“22 September 2021

Private & Confidential

Amie Logsdon
Bus Driver
Molendinar Depot

Delivered by email

Dear Amie,

Termination of your employment

I am writing to you about the termination of your employment with Surfside Buslines.

I refer to the meeting on Monday 20 September 2021 with yourself, Paul Harris, People and Culture Manager (Qld) and Matthew Thompson, Driver Manager. The purpose of the meeting was to discuss an allegation of misconduct.

This meeting was attended by you and Paul Harris, People and Culture Manager (Qld) and Matthew Thompson, Driver Manager. In summary, on Thursday 16 September 2021 at approx. 4.30pm, you were involved in an incident with a passenger on your bus.

Taking into consideration your response, the complaint, and the CCTV footage, your decision to disregard company direction and attempt to enforce the wearing of masks was not consistent with the behaviours and standards outlined in the Surfside Employee Code of Conduct, Drivers Handbook, and recent Safety Communications.

Your conduct during that incident:

•  was wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment, and

•  had the potential to cause serious risk to the health or safety of yourself and other passengers on board.

We consider that your actions constitute serious misconduct warranting summary dismissal. I am not satisfied that you have demonstrated any desire to follow the Company rules and will continue to put yourself and others at risk of harm if you were to remain employed at Surfside.

You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment. This includes the balance of any time off instead of overtime paid accrued but not yet taken (paid at the overtime rate applicable when the overtime was worked), and superannuation.

If you have been paid annual leave in advance, any amount still owing will be deducted from your final pay.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them, you can call 13 13 94 or visit their website at www.fairwork.gov.au.

Some termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.

I will arrange for your unused annual leave entitlements to be paid to your nominated bank account. Please return your company property as soon as possible.

Yours sincerely,

James Saltmer
General Manager – South East Queensland”

[6] The matter was listed for Hearing by Microsoft Teams on 31 January 2022.

[7] At the Hearing, the Applicant was represented by Ms Helena Dalton-Bridges of the Transport Workers Union (the TWU). The Respondent was represented by Mr Paul Harris, National IR Manager for the Respondent.

[8] The Applicant appeared and gave evidence on her own behalf. Mr James Wilkinson, TWU Organiser, also appeared and gave evidence on behalf of the Applicant. On behalf of the Respondent, the following individuals appeared and gave evidence:

•  Mr Matthew Thompson, Driver Manager;

•  Mr Daniel Palmer, Manager – Gold Coast North; and

•  Mr James Saltmer, General Manager – SEQ.

[9] By Order of the Commission, Mr Graham Davis, General Manager (Passenger Transport Service) for the TransLink Division of the Department of Transport and Main Roads, attended and gave evidence.

[10] The matter was further heard on 23 February 2022 for closing submissions, further to which the parties filed written copies of their closing submissions.

[11] It is not in dispute that Translink required its Service Providers to implement the following mask mandate: -

“Mandatory Masks Use

Masks are mandatory and must be worn when outside the home, including travelling on, or waiting for public transport. It is our expectation that all staff will comply with the health directive relating to mandatory mask use.

The enforcement of mandatory mask wearing remains the responsibility of the Queensland Police Service. Frontline staff are not expected to undertake any enforcement activities in relation to passengers not wearing a mask.” 1

Statutory Provisions

[12] The relevant sections of the Act relating to an unfair dismissal application are: 

“396 Initial matters to be considered before merits 

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: 

(a) whether the application was made within the period required in subsection 394(2); 

(b) whether the person was protected from unfair dismissal; 

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; 

(d) whether the dismissal was a case of genuine redundancy. 

381 Object of this Part 

(1) The object of this Part is: 

(a) to establish a framework for dealing with unfair dismissal that balances: 

(i) the needs of business (including small business); and 

(ii) the needs of employees; and 

(b) to establish procedures for dealing with unfair dismissal that: 

(i) are quick, flexible and informal; and 

(ii) address the needs of employers and employees; and 

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement. 

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned. 

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95. 

382 When a person is protected from unfair dismissal 

A person is protected from unfair dismissal at a time if, at that time: 

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and 

(b) one or more of the following apply: 

(i) a modern award covers the person; 

(ii) an enterprise agreement applies to the person in relation to the employment; 

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

384 Period of employment 

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer atthat time as an employee. 

(2) However: 

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless: 

(i) the employment as a casual employee was on a regular and systematic basis; and 

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and 

(b) if: 

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and 

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and 

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer. 

385 What is an unfair dismissal 

A person has been unfairly dismissed if the FWC is satisfied that: 

(a) the person has been dismissed; and 

(b) the dismissal was harsh, unjust or unreasonable; and 

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and 

(d) the dismissal was not a case of genuine redundancy. 

see section 388. 

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.”

Applicant’s Submissions

[13] The Applicant submitted that the unfair dismissal provisions as set out in Part 3-2 of the Act are intended to ensure that a “fair go all round” is accorded to both the former employer and the former employee. 2 The Applicant submitted that there can be no doubt that a consideration of the “fair go all round” principle applies to weigh up all of the factors set out in s.387 of the Act together in the balance.3 The Applicant addressed the criteria for harshness pursuant to s.387 of the Act as follows.

Section 387(a) - Valid reason

[14] The Applicant submitted that for a reason to be a valid reason within the meaning of s.387(a) of the Act, it must be “sound defensible or well founded” rather than “capricious, fanciful, spiteful or prejudiced.” 4 The Applicant submitted that the Commissioner must undertake an objective analysis of all of the facts, in determining whether there was a valid reason for the dismissal.5

[15] As to the question of what amounts to serious misconduct, the Applicant cited the decision in North v Television Corporation Limited 6 in which Smithers and Evatt JJ said:

“For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289 are in point. He said-:

“To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service.

...

I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of the essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”; it does (in other words) connote a deliberate flouting of the essential contractual conditions.”

[16] The Applicant submitted that where the reason for the dismissal has been because of alleged serious misconduct of an applicant, the Commission must be satisfied that the alleged conduct took place. The Applicant submitted that in King v Freshmore (Vic) Pty Ltd 7 a Full Bench of the Australian Industrial Relations Commission stated:

“When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place, and what it involved.”

[17] The Applicant further submitted that a belief, even a reasonably held belief, as to the conduct by the former employee for which the dismissal was based, is not sufficient for the purposes of s.387(a) of the Act and does not amount to a dismissal for a valid reason. 8 The Applicant submitted that while she carries the onus of proving that the dismissal was harsh, unjust or unreasonable, as her dismissal was based on alleged serious misconduct, the evidential onus of proof shifts from the Applicant to the Respondent.9 The Applicant cited the decision in Stark v P&O Resorts (Heron Island)10, in which it was stated:

“Employees have a right to expect they will not be treated as guilty of such conduct on the unsafe materials which appear to have been relied upon in the case. For myself, I would add, though it is not a proposition which is necessary to the decision in the matter, that whomsoever it is on whom the ultimate onus of proof lies in an unfair dismissal case on a grave allegation of criminal misconduct the onus must inevitably shift to the proponent of the allegation and, equally inevitably, the higher onus described in Briginshaw v Briginshaw (1938) 60 CLR 336 at 326 and M v M (1988) 166 CLR 69 at 76- 77 must be applied: compare Byrne v Australian Airlines Limited (1992) 45 IR 178 at 192, Hill J.”.

[18] The Applicant submitted that while the relevant standard of proof in an unfair dismissal matter is on the balance of probabilities, as to the onus on the Respondent in proving the alleged serious misconduct, the evidence relied upon must be strong. The Applicant cited the principles set out in Briginshaw v Briginshaw 11 in this respect, notably the requirement for “reasonable satisfaction”.

[19] As to the present matter, the Applicant submitted that her termination letter alleged:

“your decision to disregard company direction and attempt to enforce the wearing of masks was not consistent with the behaviours and standards outlined in the Surfside Employee Code of Conduct, Drivers Handbook and recent safety communications.”

[20] The Applicant submitted that nothing in the Surfside Employee Code of Conduct and Drivers Handbook deals with a pandemic, government directives or mandated mask wearing for public transport passengers. The Applicant submitted that the “so-called company direction” was a sentence in the middle of a fine print piece of paper which was published by the Respondent that said, “Frontline Staff are not expected to undertake any enforcement activities in relation to passengers not wearing a mask.” The Applicant conceded that this piece of paper was displayed on a notice board, however, submitted that it was not an instruction addressed in a toolbox meeting, nor was it repeated, reinforced or otherwise accompanied by any employee training to clarify what constituted ‘enforcement’.

[21] The Applicant submitted that ‘enforcement’ is defined in the Oxford Dictionary as the “act of making people obey a particular law or rule.” The Applicant submitted that “[c]learly enforcement is then the realm of the police”. The Applicant submitted that a request is not enforcement and relied on the definition of request in the Oxford Dictionary as being, “the act of asking for something formally and politely.” The Applicant submitted that on 16 September 2021, she made a request.

[22] The Applicant submitted that in response to the Covid-19 pandemic, Queensland Health had mandated that passengers on public transport wear a face mask. The Applicant submitted that the Respondent understood that the Queensland Government via the Chief Health Officer had mandated that public transport passengers wear masks. The Applicant submitted her understanding was that as a front-line worker, she was entitled to a safe workplace and that the Respondent was required to provide her with a safe workplace in accordance with s.19 of the Work, Health and Safety Act 2011 (Qld) (the WHS Act). Further, the Applicant submitted that she understood she had a responsibility as a worker, under s.28 of the WHS Act to take reasonable care of her own health and safety and ensure her own acts and omissions did not adversely affect the health and safety of other persons.

[23] The Applicant submitted that she understood the difference between ‘enforcement’ and ‘a request’, and she did not breach any code of conduct, driver handbook regulation or communication from the Respondent about mask enforcement in requesting that a passenger pull up the mask they had on their chin to their face.

[24] The Applicant submitted that the direction to ignore the Queensland Government mask mandate had not been subject to any employee consultation by the Respondent, as required by ss47-49 of the WHS Act. The Applicant submitted, therefore, determinations had been made about what was safer for employees without their input. The Applicant cited Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal: 12

“Further, employer directions which endanger the employee’s life or health, or which the employee reasonably believes endanger his or her life or health, are not lawful orders; …

The order or direction must also be ‘lawful’ in the sense that an employee cannot be instructed to do something that would be unlawful; such as a direction to drive an unregistered and unroadworthy vehicle.

Employees are only obliged to comply with employer directions which are lawful and reasonable.” 13

[25] The Applicant submitted that her actions were not borne out and did not achieve the kind of repudiatory misconduct required to satisfy serious misconduct. The Applicant submitted that there was no valid reason for her dismissal.

s.387(b) - Whether the person was notified of that reason

[26] The Applicant submitted that the notification for the reason for dismissal must be made prior to the employee being dismissed, and there must be an opportunity for response prior to any decision being made to terminate the employee:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it were sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 14

[27] The Applicant submitted that in the present case, the Respondent’s allegations against her were not accurate. The Applicant submitted that the Respondent appears to have erroneously thought that the Applicant asked the passenger to leave the bus as he was not wearing a face mask.

[28] The Applicant submitted that the Respondent had not read the incident report written by the Applicant straight after the incident, prior to standing her down.

[29] The Applicant submitted that she attended the meeting unrepresented, as she was only made aware of the meeting at 5pm on Friday 22 September and the meeting was arranged for the Monday at 1pm, which did not allow enough time for the TWU Organiser, Mr James Wilkinson, to be in attendance at the Gold Coast.

[30] The Applicant submitted that while the Respondent appears to rely on a previous matter that was dealt with over 12 months ago and described as Inappropriate Behaviour, the general practice of the Respondent is to not refer matters once they are over 12 months old. Further, the Applicant submitted that this was not referred to in the original termination letter.

[31] The Applicant submitted that whether an employee was given an opportunity to respond to any reason related to the conduct of the employee, in accordance with s.387(c) of the Act, is a question of fact. The Applicant submitted that in giving the opportunity to respond, the employer cannot just “go through the motions.”

Harsh, Unjust or Unreasonable

[32] The Applicant submitted that a dismissal can be “harsh, unjust or unreasonable” if it is:

•  harsh but not unjust or unreasonable,

•  unjust but not harsh or unreasonable, or

•  unreasonable but not harsh or unjust.

[33] The Applicant submitted that the concepts of harsh, unjust, or unreasonable may also overlap.

[34] The Applicant relied on the decision in Woolworths Ltd v Browne, 15 in which it was stated:

“[36] Even where a breach of policy (or failure to comply with a direction to observe a policy) provides a valid reason for termination of employment, it is well established that the termination may nevertheless be harsh, unjust, or unreasonable. For example:

•  the employee may establish ignorance of the policy.

•  termination of employment may be a disproportionate response to the breach having regard to nature and the employee’s length of service and prior history.

•  the employee may demonstrate prior non-enforcement or inconsistent application of the policy which, in the particular circumstances, render termination for breach of the policy harsh, unjust or unreasonable (although it should be noted that “…merely because in the past, another employee in breach of the policy may have been dealt with in a particular way other than dismissal is not, of itself, a reason why subsequent dismissals in similar circumstances might be said to be harsh.”);

•  the evidence may disclose that the policy is being applied in a discriminatory fashion or is used as a pretence to disguise a real reason that is impermissible (e.g., union membership or non-union membership).

This list is not intended to be exhaustive, and each case will turn on its own facts.”

[35] The Applicant submitted that the above principles are relevant to her Application, as there was apparently nonadherence to a “safety communications.” The Applicant submitted that this communication was not repeated or reiterated, there was no training provided and no examples given of how drivers should deal with situations. The Applicant submitted that the concepts of de-escalation would not appear appropriate in isolation as a strategy to deal with passengers not wearing masks when there was a government directive requiring mandatory face masks to be worn by passengers on all public transport.

[36] The Applicant further submitted that termination of employment was a disproportionate response to the events in circumstances where:

“•  The Queensland Government had mandated the wearing of face masks for all public transport passengers.

•  The Applicant requested a passenger to wear the face mask they already had on their chin.

•  A reasonable employer would have consulted their employees about the changes to their work environment in accordance with the Work, Health and Safety Act 2011 Qld.

•  A reasonable employer would have taken steps to ensure bus passengers were aware that there was a Public Health Directive requiring Mandatory Face Masks to be worn by all bus passengers.

•  A reasonable employer would have provided a safe workplace for their employees and other travelling passengers.

•  A reasonable employer would have trained their employees in what to do when the government directive was not complied with.

•  A reasonable employer would not expect older workers to drive around all day in air conditioning without HEPA filters, with people not using a face mask, during a pandemic, where the wearing of face masks has been mandated by the government.

•  A reasonable employer would ensure that abuse of their employees is not tolerated and would take active steps to assist employees who have experienced abuse in the course of their work.

•  A reasonable employer would not decide it is better to expose their workers to illness than let them be exposed to unruly passengers because they did not provide enough driver safety screens.

•  The Respondent’s training record on policy and procedures is weak to nonexistent.”

Other relevant matters

[37] The Applicant submitted that the Commission should also have regard to the following matters. The Applicant:

•  Is 55 years of age.

•  Had wanted to remain in this role with her partner for some years to come.

•  Has 2 years’ service with the Respondent; and

•  Is now carrying a serious stain to her reputation as a result of a termination and will struggle to gain re-employment as a result.

[38] The Applicant further submitted that for these reasons, the dismissal was harsh in respect of the effect it had on her.

[39] The Applicant submitted that for all of the above reasons, there was no valid reason for the dismissal, there were procedural deficiencies in the process, the termination was generally harsh unjust or unreasonable and the effect of the dismissal was personally harsh on her.

Remedy

[40] The Applicant submitted that the only just remedy is for her to be reinstated, and that the provision of that remedy will ‘give a fair go all round’.

[41] The Applicant cited the decision in Perkins v Grace Worldwide (Australia) Pty Ltd, 16 in which the Full Court of the Industrial Relations Court of Australia, when considering the meaning of the word “impracticable” in s.170 EE (2) of the Industrial Relations Act 1998 in the context of the remedy of reinstatement, said:

“(ii) Principles

Trust and confidence are a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11ALR 599 at 609. So, we that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. there may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example, the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if this is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”

[42] The Applicant noted that in McLauchlan v Australia Meat Holdings Pty Ltd, a Full Bench of the Australian Industrial Relations Commission said regarding Perkins:

“While Perkins was decided under the former statutory scheme the above observations remain relevant to the question of whether reinstatement is appropriate in a particular case.” 17

[43] As to the present case, the Applicant submitted that she held a position in the team of trust and confidence prior to her dismissal. The Applicant submitted that she had believed she was complying with the employers’ directions and she at no point wilfully or deliberately sought to ignore the employers’ policies. The Applicant submitted that any suggestion of a “loss of trust and confidence” is mechanical in nature and stated only in the hope it will defeat the only just remedy, being reinstatement to her previous position.

[44] The Applicant seeks an order for reinstatement, including orders:

•  to maintain the continuity of her employment;

•  to maintain the period of her continuous service with the Respondent; and

•  restoring her lost pay as a result of the termination of her employment.

[45] In the event the Commission determines that reinstatement is not an appropriate remedy, then pursuant to s.390(3)(b) of the Act, the Applicant seeks an order for compensation.

[46] The Applicant submitted that the Commission should have regard to her age, as well as the length of her service with the Respondent of approximately 2 years, and the high likelihood that she would have continued in her employment with the Respondent for at least another 5 years. Further, the Applicant submitted that any order for compensation would not have any effect on the viability of the Respondent’s enterprise.

[47] The Applicant submitted that it is appropriate that she be compensated for her actual loss which would, in conservative terms, be at least, taking into account reasonable contingencies, 5 years’ remuneration. In applying the statutory cap as set out in s.392(5), the Applicant submitted that she should receive the equivalent of 26 weeks’ of pay that would have been earned by her immediately before her dismissal.

[48] The Applicant submitted that no reduction should be made in light of her principal contention that she did not engage in any serious misconduct.

Respondent’s submissions

[49] The Respondent submitted that the Applicant was dismissed on 22 September 2021 for Serious Misconduct following an investigation into a complaint that she had engaged in inappropriate behaviour towards a passenger. The Respondent submitted that the Applicant has found, following the investigation, to have engaged in conduct in breach of the Respondent’s Code of Conduct and other work instructions.

[50] The Respondent contended that the reasons for the Applicant’s dismissal were sound, defensible or well-founded as:

a. “The Applicant initiated the verbal conversation with the passenger;

b. The Applicant was aware of the standard of conduct expected by the Respondent towards other employees. The Respondent has a Code of Conduct. The Applicant also received regular training on the Code of the Conduct, Customer Service and Deescalation procedures;

c. The Applicant was aware of the consequences of her actions. The Code of Conduct and the procedure make it clear that unsafe actions unacceptable. Further, the Code of Conduct makes it clear that matters involving of this nature will be treated as Serious Misconduct and result in ‘Instant Dismissal’;

d. Based on the events leading to the dismissal, the Applicant has consistently demonstrated an unwillingness to follow the lawful directions of the Respondent;

e. In the events leading to the complaint and her dismissal, the Applicant chose to act in a manner contrary to the Respondent’s lawful directions;

f. The Applicant’s actions risked damaging the reputation of the Respondent;

g. The Applicant’s actions risked the health and safety of other persons;

h. The Applicant engaged in conduct which represented a fundamental departure from her duties as an employee of the Respondent;

i. The Applicant could have avoided the conflict and risk;

j. The Applicant could not risk employing a Driver in circumstances where it held real and valid concerns that the Driver would engage in risky and avoidable behaviour when performing duties in a largely unsupervised environment; and/or

k. whilst the Respondent is only aware of these events, it may be the case that other events were unreported and the risk of the Applicant’s behaviour in terms of not avoiding conflict and not de-escalating the situation and not following the Respondent’s procedures and Code of Conduct, was too risky for the public and the Respondent, such that any reoccurrence could have a real and genuine effect on the viability of the Respondent’s enterprise and the provision of transport services to the public.”

[51] The Respondent submitted that the CCTV evidence, the Complaint and the Applicant’s Incident Report support the assertion that the Applicant engaged in wilful or deliberate behaviour that was inconsistent with the continuation of her contract of employment.

[52] The Respondent relied on the evidence of Mr Thompson as supporting the assertion that the Respondent followed a process which encapsulated the rules of procedural fairness and natural justice.

[53] Further, the Respondent relied on the evidence of Mr James Saltmer and Mr Daniel Palmer as supporting the assertion that the Respondent’s actions were appropriate in all of the circumstances.

Mask wearing mandate

[54] The Respondent submitted that it is legally obligated to follow the instructions of its client, Translink, regarding the instructions to not enforce mask wearing. The Respondent submitted that it is also bound to follow its own Procedures and Code of Conduct.

Other factors

[55] The Respondent submitted that even a single event of inappropriate conduct of a serious nature should justify termination of employment.

[56] The Respondent submitted that Employers are vicariously liable under Work Health and Safety laws for their employee’s conduct and therefore entitled to take a hard-line approach to managing substantiated complaints of inappropriate conduct.

[57] The Respondent further submitted that it is engaged in providing public transport services to a wide variety of passengers from different backgrounds, many of those passengers are from disadvantaged backgrounds who cannot afford to travel in private transport. The Respondent submitted that those passengers are entitled to travel on the bus without fear of being questioned.

[58] The Respondent contended that the Commission should consider the problems with Drivers initiating conflict with passengers and ‘take a stand’ against this behaviour due to the potential long-term consequences for all involved.

[59] The Respondent submitted that on an objective analysis of the material before the Commission and on the balance of probabilities, the Commission should determine that the conduct occurred and that it constituted a valid reason for dismissal.

Procedural Fairness

[60] The Respondent submitted that it notified the Applicant of the reasons for her dismissal by letter sent by email on 22 September 2021.

[61] The Respondent submitted that the Applicant was given several opportunities to respond to the allegations raised by the Respondent, and the Applicant provided a written response and had the opportunity to provide more information in the meeting on 20 September 2021.

[62] The Respondent submitted that on each occasion, it considered and responded to the information provided by the Applicant.

[63] The Respondent also submitted that the Applicant was afforded the opportunity to have a support person present at all times, notwithstanding that the Applicant chose not to have someone attend with her.

[64] The Respondent noted that the dismissal did not relate to the Applicant’s work performance.

[65] The Respondent acknowledged that it is not a small business and has access to Human Resources expertise.

Other relevant factors

[66] The Respondent submitted that having regard to the considerations below, the dismissal was not unduly harsh:

a. the Applicant’ statements have demonstrated a distinct lack of contrition;

b. any harshness for the Respondent must be weighed against the potential serious consequences of the Applicant’s conduct for the reputation of the Company and the health and safety of others; and

c. the Commission should consider the affect this could have on the public, the risk posed to other employees, passengers and the loss of confidence between the Applicant and the Respondent.

[67] The Respondent submitted that the Applicant’s personal and economic circumstances are not a relevant consideration in this matter. The Respondent submitted that its inability to secure other work and the economic impact of her dismissal are not an uncommon experience for someone who has lost their job. It submitted that the Commission should not consider these circumstances to be a relevant matter in this case.

[68] The Respondent submitted that it has lost trust and confidence in the Applicant to act appropriately in future situations involving conflict and, therefore, submitted that reinstatement is not an appropriate remedy.

Consideration

[69] I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.

[70] When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne) (1995) 185 CLR 410 is of significance:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[71] In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH) (1998) 84 IR 1 held:

“The above extract is authority for the proposition that a termination of employment may be:

•  unjust, because the employee was not guilty of the misconduct on which the employer acted;

•  unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or

•  harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”. 18

[72] Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd 19 said:

“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination”.

[73] I now turn to the criteria for considering harshness as provided in s.387 of the Act.

Section 387(a) – valid reason

[74] The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd: 20

“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …

In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…” 21

[75] In Rode v Burwood Mitsubishi , 22 a Full Bench of the Australian Industrial Relations

Commission held:

“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[76] In Qantas Airways Ltd v Cornwall (Cornwall) 23 the Full Court of the Federal Court of Australia said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[77] In relation to the Applicant’s earlier final warning, I do not accept the Applicant’s argument that the complaint from the member of the public was about a different driver, so the final warning letter should have been issued. Even if this scenario is factual, it is irrelevant because the Respondent has searched the video footage and found the Applicant talking into her Apple watch. The Respondent argued that the Applicant was in breach of its Code of Conduct and issued the Applicant with a final warning because the Applicant’s watch is a bluetooth device. The Code of Conduct provides as follows regarding ‘Instant Dismissal’:

“INSTANT DISMISSAL

Instant dismissal applies to behaviour considered to be serious misconduct.

However, cases will be reviewed on an individual basis and other forms of disciplinary action may be taken where an employee’s work history or explanation serves to mitigate the penalty.

Serious misconduct is defined as wilful or deliberate behaviour by an employee that causes a serious and imminent risk to the health or safety of a person; or the reputation, viability or profitability of the business. Examples of serious misconduct includes (but are not limited to):

•  Theft;

•  Fraud;

•  Assault (verbal or physical);

•  Intoxication at work whether under the influence of alcohol, illegal drugs or the misuse of legal drugs;

•  Vandalism of company property;

•  Leaving a child behind;

•  Smoking in a public passenger transport vehicle;

•  Using mobile phone (including texting, blue tooth), iPod (or any hand held devices) whilst in control of a public passenger transport vehicle;

•  Interfering with any kind of safety device;

•  Not wearing a seatbelt whilst driving a public passenger transport vehicle;

•  Operating a public passenger transport vehicle without the appropriate licence or authorisation;

•  Driving a public passenger transport vehicle without due care and attention;

•  Racial vilification /discrimination / bullying / harassment;

•  Sexual Harassment;

•  Endangering the lives of others / deliberately not following safety procedures;

•  Gross negligence;

•  Persistent or repeated acts of misconduct;

•  Conviction of an offence that constitutes a serious impediment to carrying out your duties;

•  Bringing the Company’s reputation into disrepute, such as through media statements or making damaging remarks about the Company or an employee on social media;

•  Refusal to carry out a lawful and reasonable instruction which is consistent with the employment contract.”

(My emphasis)

I have taken this into account.

[78] I do not accept the Respondent’s argument that there is some significance in the Victorian road rules which state that it is illegal to operate a smart watch whilst driving. It is not in dispute that such a rule does not exist in Queensland. Road rules differ between states across Australia, e.g, at some intersections in Melbourne it is compulsory to turn right from the left-hand lane! I can also recall that different jurisdictions previously had different blood alcohol limits. The Victorian road rules are irrelevant to drivers who are driving on Queensland roads. I have taken this into account.

[79] I have taken into account that a smart watch is not a mobile phone and is not an iPod, which are the two devices identified in the Respondent’s Code of Conduct. If the Respondent intended to extend its list of behaviours that it considers to be serious misconduct, then it should have amended this Policy to include the use of smart watches or any other device.

[80] The Respondent did not provide me with any material which identifies a smart watch as a Bluetooth device or any training manual which would identify a smart watch as a bluetooth device. The Applicant claims that she did not attend any training advising that a smart watch could not be used whilst driving. I have taken this into account.

[81] Further, the Applicant had a valid reason to use her smartwatch to contact the parent of a child who had missed their stop. The Respondent argued that the Applicant should have contacted the Respondent’s control room by two-way radio and allowed the control room to contact the parent. If this practice is the policy of the Respondent, then the Applicant should have followed the policy. However, I do not accept the argument that the actions of the Applicant were inherently more dangerous by talking into her watch rather than using the two-way. Having studied the videos supplied by the Respondent, it is obvious that the use of the two-way requires the Applicant to take her eyes off the road, albeit for a second, whereas no such distraction occurs when using her watch. I have taken this into account.

[82] The General Manager of Passenger Transport Services for Translink, Mr Graham Davis, was issued a notice to attend the Hearing by the Commission. Mr Davis testified:-

“Is there anything in writing from the government which gives any provider an exemption from the mandate?---No.

All right?---Sorry, to elaborate, there is direction - not direction, there is advice in writing outlining that it's our expectation that all service delivery partners would comply with the health directorate that delivery partners remain responsible for supplying and providing masks to their staff, and that the enforcement of mandatory mask wearing remains the responsibility of the Queensland Police Service.” 24

I have taken this into account.

[83] In relation to the comment from the passenger to the Applicant to “f*ck off Karen”, Mr Davis agreed that such a comment would constitute a breach of Translink’s Passenger Code of Conduct:-

“It comes from Victoria, does it?  Anyway.  But even without the Karen part, which is obviously an inappropriate term, but any passenger telling a driver to eff off, would that fail the respect provisions of your code of conduct?---My personal view would be yes, it would.” 25

[84] I note that Translink’s Passenger Code of Conduct states that:-

“Passenger code of conduct

TransLink is committed to providing a safe and inclusive environment for everyone on public transport.

This code of conduct applies to customers travelling anywhere on our network; either on a service or at any public transport stop or station. To help us ensure everyone has a safe and comfortable journey:

Respect

•  Treat all public transport staff and other passengers with courtesy and respect. Verbal or physical aggression towards staff or other passengers will not be tolerated.

…

Safe and efficient

•  It is the customers' responsibility to ensure they have a valid ticket for the entirety of their journey. Have a go card, valid paper ticket, or the correct fare ready before boarding and ensure you have a valid ticket to travel for the entire length of your journey.” 26

I have taken this into account.

[85] I have taken into account the inappropriate, incorrect and astonishing evidence of Mr Thompson in his witness statement where he said;-

“I do not believe that the passenger’s conduct met the definition of ‘abuse’. I think the better word is ‘rude’ and I note that it was the same word that Ms Logsdon told the passenger at the time and later described him as ‘obnoxious’. I do not believe that the passenger’s rudeness justified refusing him travel, especially as he had not started the conflict and he appeared to be lawfully entitled to not wear a mask.” 27

[86] This comment was not corrected by Mr Thompson at the start of his testimony when he stated, under affirmation, that the contents of his witness statement were true and correct.

“There's 16 pages of the first statement dated 17 December and then a further nine paragraphs, two pages on the second statement of 21 December, and associated attachments.  The CCTV is also included with your witness statement?---Yes.

Is this information true and correct to the best of your knowledge?---It is, yes.” 28

[87] It was only after questioning from me that Mr Thompson recanted his evidence to say:

“It was directed at her.  Do you still stand by that, that what the passenger said was not verbal abuse?---In retrospect it would be hard to stand by that.” 29

[88] Up until the question from me, Mr Thompson was of the view that the Applicant should not have been offended by being told to “F*ck off Karen” by the passenger. This perception by Mr Thompson shows that management had a negative mindset against the Applicant as a result of the incident. I note that Mr Davis from Translink was of the view that the comment by the passenger was inappropriate and a breach of Translink’s Passenger Code of Conduct.

[89] I have taken into account the video footage of the incident. I have accepted the transcript of the discussion between the Applicant and the passenger, identified at page 45 of the Court Book.

[90] It is not in dispute that the Respondent was bound by the Queensland Government mandate, requiring all drivers and passengers to wear masks on public transport. It is not in dispute that the Respondent had only installed signs “inside” of its buses. It is not in dispute that drivers were not required to enforce the mask wearing mandate. I have taken this into account.

[91] I have taken into account that the passenger was wearing a mask under his chin. As a result, when he said that he had an exemption from the mandate he was clearly lying. Therefore, the Queensland Government mandate applied to the passenger. I struggle to see how asking a person who is already wearing a mask to place it over his mouth rather then wearing it under his chin can be described as somehow enforcing the mandate. The Applicant did not tell the passenger to get off the bus for not wearing his mask, did not refuse to drive the bus until the passenger put on his mask and did not speak in an authoritative voice to the passenger. In fact, the final words said by the Applicant were “please, please put it on”. This comment shows that the Applicant was concerned about her safety and that of her passengers.

[92] In relation to the actual incident, Mr Palmer responded in the following manner to a series of questions from me:-

“In relation to what transpired, did you not think it was appropriate for Ms Logsdon to ask this passenger, on the basis that he had a mask - he was wearing a mask, it was just around his chin?---Yes.

You don't think it was appropriate for her to ask him to put it up above - on his nose?---I don't have an issue with the initial request, but once it came back that he had an exemption, that's where it should have stopped.  It should not have gone any further than that.” 30

[93] Further, in relation to the reasons why the Applicant was terminated, Mr Palmer testified:-

“And you're the expert, not me, but I'm just saying that the situation in relation to the passengers getting off the bus would have been exactly the same, and that seems to be an issue that you have and one of the reasons why Ms Logsdon was terminated, was because of the effect it had on the inconvenience of those other 20 people?---One of many things that happened, yes.” 31

I have taken this into account.

[94] Mr Saltmer testified that he believed that the Applicant did not comply with the direction to not enforce the wearing of masks. 32

“How did Ms Logsdon not comply?---I think by persistently requesting a passenger on board the bus wear a mask.

Why is that a problem?---From my experience in this industry, it can lead to unnecessary conflict between the passenger and bus driver and ultimately can result in the very least a poor customer outcome in the form of a delayed service but in more severe cases that can lead to physical and verbal assault of a bus driver.” 33

[95] Mr Saltmer testified that there were other reasons as to why the Applicant was dismissed apart from trying to enforce the passenger to wear his mask:-

“But the evidence today is that this instruction or recommendation, whatever you call it, this explanation went out about two or three time by email, I think the word was, and that Mr Palmer and Mr Thompson said this was the most appropriate way to contact staff and communicate with staff, so I accept all that.  But what I'm just wondering though, is it – you said earlier in your evidence that the instructions were clear and concise and for someone to be terminated for asking a passenger to put on a face mask I would have expected that those words appear somewhere in a communication.  And I just want to be pointed to that communication, that's all?---Understood.  When making the decision around the future of Ms Logsdon's employment with Surfside this was but one consideration.  Consideration was also given to previous warnings that had been issued and there was a consistent trend in behaviour which saw a non-compliance or non-conformance with instructions provided by the employer, and a pattern of behaviour if you will.

…

Yes, that's fine and, look, I'm not saying that what you've done in dismissing Ms Logsdon isn't the appropriate thing.  You know, you say you've got other reasons apart from this, there's some ongoing behaviour issues.  All I'm trying to find out is whether or not there's any verbal or written communication anywhere, any evidence anywhere that says from your company to the drivers you cannot ask the passenger to put on a mask.  If the answer's no, the answer's no, but I'd just like an answer?---Understood.  I don't have anything on hand that says that we have given that advice but - - -.” 34

(My emphasis)

[96] Mr Saltmer referred to the Applicant’s termination letter when questioned about the key reasons for the Applicant’s termination:-

“MR HARRIS:  A final question, Mr Saltmer.  Just to be very clear, from your perspective you are the ultimate decision-maker in this, what was Ms Logsdon dismissed for?  What was it in your mind that was the key thing that led to dismissal?---It's spelt out in the termination letter which I have on hand and I'd like to reference when answering your question.  Is that Ms Logsdon disregarded a company direction which may have resulted in a risk to her health and safety but taking – looking at the picture and sort of a pattern of behaviour which I referenced previously, Ms Logsdon has – with not complying with company directions.  It was clear that continuing Ms Logsdon's employment would not be a suitable response to the incident.” 35

I have taken this into account.

[97] I have taken into account that the passenger was not asked to leave the bus because he refused to wear his mask, as stated by Mr Palmer, but because he verbally abused the Applicant.

[98] I have taken into account that the Applicant, in accordance with the direction from Mr Palmer, did not refuse entry to any passenger not wearing a mask. I also note the Respondent’s Policy of not challenging any passenger who fails to pay their fare.

[99] I have taken into account the Respondent’s Policy for drivers to de-escalate situations in order to protect the drivers and other passengers from possible violence.

Section 387(b) – Notified of the reason

[100] It is not in dispute that the Applicant was notified of the reasons for her termination.

Section 387(c) – Opportunity to respond

[101] The Applicant was given an opportunity to respond to the reasons.

Section 387(d) – Refusal to support person

[102] The Respondent gave the Applicant very little time to arrange for a Union Official to be present at the meeting. However, the Respondent did not refuse to allow the Applicant to have a support person present.

Section 387(e) – Unsatisfactory performance

[103] There were no issues of unsatisfactory performance raised by the parties. This issue is a neutral consideration.

Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed

[104] The Respondent acknowledged that it is not a small business and has access to Human Resources expertise. This issue is a neutral consideration.

Section 387(h) – Any other matters

[105] It is not in dispute that the Applicant did not receive any form of written or verbal communication where drivers were advised that they cannot ask a passenger a second time to put on a mask. I have taken this into account.

[106] I have taken into account that the Respondent believes that consultation with all 280 of its bus drivers can occur via small Safety Committee meetings or via the placing of written notices on notice boards or by sending emails. Toolbox meetings, whilst may be regarded as providing an inconvenience to the Respondent, are the only way to provide a consistent and direct message to employees. To do otherwise, leaves the recipient of an email with the opportunity to apply their own understanding to the written word.

[107] I have taken note of the Mask Mandate from Translink. The Mandate says that drivers are ‘not expected’ to enforce the Mandate, not that they are prohibited from enforcing the Mandate.

[108] Mr Saltmer claimed that the Applicant had a ‘constant trend in behaviour’. I do not agree. The two incidents involving the Applicant were unfortunate and perhaps could have been dealt with in a more appropriate manner, but they do not identify a trend. Two incidents, more than 12 months apart, involving totally different issues, do not identify a trend but simply the Applicant’s reaction to two very unusual incidents.

Conclusion

[109] I am satisfied and find that the Applicant did not breach the Respondent’s Code of Conduct in using her smart watch to contact the parent of a child who was travelling on the bus. For an action of an employee to be deemed serious misconduct, then the Code of Conduct Policy must be concise. I do not accept the evidence that the Policy which states the use of a “mobile phone (including texting, blue tooth)” therefore captures every bluetooth device invented since the release of the Policy.

[110] However, if I am wrong and the Applicant has breached the Respondent’s Policy in relation to using her smart watch instead of her two-way radio in relation to the first incident, then I find that this breach does not justify the issuing of a final warning. The Applicant was providing a service to a worried mother, not having a bet on the last race at Doomben or talking to a friend.

[111] I find that the Respondent did not respond appropriately to the verbal abuse that the Applicant received from the passenger on 16 September 2021. This abuse is clearly a breach of the passenger’s responsibility to act in accordance with Translink’s Passenger Code of Conduct. The Respondent has simply condoned the actions of the passenger in breach of the Translink Policy and the Respondent’s obligation to the Applicant. The passenger claimed to be a law student. The Respondent should have sent the appropriate section of the video to the Dean of Law at the local university so that he could be identified and appropriate action taken against him, rather than dismiss the Applicant.

[112] I find that the Applicant did not engage in any activity which could be identified as being ‘enforcement’. The Applicant did not refuse to leave the bus stop, did not stop the bus, did not seek to argue the point of the mandate with the passenger, did not seek to leave her seat to confront the passenger, she simply asked him to put on his mask, whilst continuing to drive the bus. As a result, the Applicant has not breached the Respondent’s policy. As a result, and for the reasons identified above, the Respondent did not have a valid reason to terminate the Applicant.

[113] If I am wrong and the Respondent did have a valid reason to terminate the Applicant for breaching its Policy, then adopting the obiter in Byrne and AMH, the dismissal was harsh because it was disproportionate to the gravity of the misconduct. To be dismissed for asking a passenger to put their mask on again, when they have clearly lied to you, is not a step too far. Further, adopting the obiter in Cornwall, the Prime Minster, every Premier and Chief Health Officer in every State were advising Australian’s to stay home, and ‘if you must go out, wear your masks and remain diligent’ – every night. The actions of the Applicant fit within the boundaries of this advice.

[114] Additionally, based on my earlier finding that the Applicant should not have been on a final warning, then a further breach of the Respondent’s Policy would advance the Applicant along the disciplinary pathway but would not result in the Applicant’s termination. Therefore, the Applicants termination is harsh and unreasonable.

[115] I find it incredulous that any employer would dismiss an employee for asking a passenger to comply with a Government mandate. The lack of appropriate signage on the outside of the bus is unusual. I have not witnessed any other establishment during this pandemic that does not have the mask wearing signage on the outside of the premises – whether that be an airport, petrol station, retail shop, pub or church. The attitude of the Respondent in not worrying whether passengers comply with the Government mandate during a public health emergency is concerning. It would appear that the primary concern of the Respondent was “on-time running” in relation to their benchmarks rather than the safety of their employees and the public.

[116] I find that the Applicant’s dismissal was harsh and unreasonable, and therefore unfair.

Remedy

[117] Having found that the Applicant has been unfairly dismissed, I now turn to the issue of an appropriate remedy.

[118] I have taken into account all of the submissions that have been provided by the parties in relation to remedy and I have attached the appropriate weight to the evidence of the witnesses.

[119] The Applicant seeks to be reinstated. The Respondent submitted that reinstatement was impracticable because it had lost trust and confidence in the Applicant.

[120] The relevant provisions of the Act in relation to a remedy for an unfair dismissal are:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[121] In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins), 36 the Full Court of the Industrial Court said:

“Trust and confidence is a necessary ingredient in any employment relationship. … So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Di 3 of Pt VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

… It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.” 37

(My emphasis)

[122] In Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (Nguyen), 38 a Full Bench of the Commission conveniently summarised this issue:

“The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

•  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

•  Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

•  An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

•  The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

•  The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” 39

Consideration

[123] The Applicant has a long employment history in providing service to the community having previously served in the armed services. The Applicant has also been very active in the campaign for equal rights for females in the workplace and community. I have taken this into account.

[124] I have taken into account the submission of the Respondent that it has lost trust and confidence in the Applicant as a result of a perceived habit of simply ignoring policies whenever the Applicant deems it appropriate. The Respondent’s policies are there for a purpose, ie, to ensure the safety and wellbeing of the Respondent’s employees and customers. The Respondent has a right to expect its employees will obey its policies.

Conclusion

[125] I do not agree that the Applicant has an attitude where she simply ignores the Respondent’s policies. In relation to the first incident, the Applicant believed that she was following an appropriate course of action to directly notify a child’s mother that her child would be late to a bus stop. I am confident the child’s mother was very appreciative. In relation to the second incident, had I been a passenger on the bus, then I would have been appreciative of the requests by the Applicant to the recalcitrant passenger to move his mask from his chin to cover his mouth and nose.

[126] The primary remedy under the Act is reinstatement. Based on the obiter in Perkins and Nguyen I can see no reason why the Applicant should not be reinstated to her former role. The Applicant is clearly a proud and caring bus driver who loves her job. To simply order compensation would be to impose a penalty upon the Applicant to which she does not deserve.

[127] In accordance with the section s.391(1)(a) I hereby Order that the Applicant be reinstated to her former role, grade and deport of the Respondent.

[128] In accordance with section s.391(2)(a), I hereby Order that the Applicant’s continuity of service be maintained.

[129] In accordance with section s.391(3) I hereby Order that the Applicant be backpaid her average wage, based on the last 8 weeks of her employment, to the date of her termination.

[130] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR738697>

 1   Page 123 of the Court Book, “Safety Communication: QLD Restrictions Update – 02nd August 2021”.

 2   Fair Work Act 2009, Section 382(2); See also Hill v Adult Multicultural Education services (2008) 171 IR 360 at [67]-[77].

 3   Hill v Adult Multicultural Education services (2008) 171 IR 360 at [72]; See also Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 8 per Ross VP, Polites SDP and Hoffmann C.

 4   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 5   Annetta v Ansett Australia (2000)98 IR 233 at [10].

 6   (1976) 11 ALR 599 at 609.

 7   Print S4213 at [23] per Ross Vp, Williams SDP and Hingley C.

 8   Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14.

 9   Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 458.

 10   (1993) 144 QGIG 914 at 916.

 11   (1938) 60 CLR 336 at 361-362.

 12   [2021] FWCFB 6059.

 13   Ibid at [69]-[71].

 14   Crozier v Palazzo Corporation Pty Ltd Print S5897 per Ross VP. Acton SDP and Cribb C.

 15   (2005) 145 IR 285 at 297.

 16   (1997) 72 IR 186 at 191-192 per Wilcox CJ, Marshall and North JJ.

 17   (1998) 84 IR 1 at 18 per Ross VP, Polities, SDP and Hoffman C.

 18   (1998) 84 IR 1 at 10.

 19   [2000] AIRC 1019.

 20   (1995) 62 IR 371.

 21   Ibid.

 22   PR4471.

 23   (1998) 84 FCR 483.

 24   Transcript at PN771-772.

 25   Transcript at PN821.

 26   Page 139 of the Court Book, “Translink Passenger Code of Conduct”.

 27   Witness Statement of Mr Thompson, at [40].

 28   Transcript at PN1169-70.

 29   Transcript at PN1365.

 30   Transcript at PN1056-1057.

 31   Transcript at PN1100.

 32   Transcript at PN1460.

 33   Transcript at PN1462-1463.

 34   Transcript at PN1548, 1554.

 35   Transcript at PN1637.

 36   (1997) 72 IR 186.

 37   Ibid at 191-2.

 38   [2014] FWCFB 7198.

 39   Ibid at [27]-[28].