[2011] FWAFB 6487

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The attached document replaces the document previously issued with the above code on 22 September 2011.

The name Gibran appearing in Appearances at the end of the Decision has been deleted and replaced with the name Gibian.

Lisa Powell

Associate to Senior Deputy President Acton

Dated: 22 September 2011

[2011] FWAFB 6487


FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Siriwardana Dissanayake
v
Busways Blacktown Pty Ltd
(C2011/5081)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT MCCARTHY
COMMISSIONER SPENCER

 

MELBOURNE, 22 SEPTEMBER 2011

Appeal against decision [[2011] FWA 3549] and order [PR510420] of Deputy President Sams at Sydney on 23 June 2011 in matter number U2010/11936.

Introduction

[1] Mr Siriwardana Dissanayake has appealed the decision 1 and order2 of Deputy President Sams dismissing his unfair dismissal remedy application3 against Busways Blacktown Pty Ltd (Busways).

[2] Mr Dissanayake’s grounds of appeal centre on the Deputy President’s decision in respect of the matters in s.387 of the Fair Work Act 2009 (Cth) (FW Act). Section 387 of the FW Act is as follows:

[3] The Deputy President decided that either the manner in which Mr Dissanayake drove a school bus on 3 August 2010 4 or the manner in which he dealt with a passenger on the bus he was driving on 16 August 20105 was conduct constituting a valid reason for Mr Dissanayake’s dismissal by Busways.

[4] The Deputy President also decided that “none of the procedural complaints of the applicant were of such significance as to have denied the applicant procedural fairness such as to have resulted in a different outcome than dismissal. The overwhelming preponderance of evidence was that:

[5] The Deputy President went on to say “[e]ven if I am wrong about my findings on any of the alleged procedural faults, the allegations against the applicant, which I have found proven, on the balance of probabilities, were of such seriousness as to far outweigh any minor procedural deficiencies.” 7

[6] With these conclusions and the conclusions he reached in respect of the other relevant matters in s.387 of the FW Act, the Deputy President decided the dismissal of Mr Dissanayake by Busways was not harsh, unjust or unreasonable. 8

Grounds of appeal

[7] Mr Dissanayake’s grounds of appeal are, in summary, that the Deputy President erred:

[8] We will deal with these grounds of appeal in turn.

Valid reason

[9] Mr Dissanayake maintains the Deputy President erred in reaching his conclusion that the manner in which he drove the school bus on 3 August 2010 constituted a valid reason for his dismissal. Mr Dissanayake submits the Deputy President erred by not having sufficient regard to the fact Busways allowed him to drive for some considerable time after 3 August 2010 and in not criticizing Busways for failing to call witnesses in relation to the conduct.

[10] In his decision, the Deputy President clearly refers to the issue of Busways allowing Mr Dissanayake to drive a bus after the 3 August 2010 incident. However, the Deputy President concludes the issue is irrelevant to the matter of Mr Dissanayake’s conduct on 3 August 2010. 9 We concur with the Deputy President. The fact Busways allowed Mr Dissanayake to drive a bus after 3 August 2010 does not diminish the seriousness of the conduct of Mr Dissanayake on 3 August 2010 constituting a valid reason for his dismissal.

[11] We consider Mr Dissanayake’s submission that the Deputy President erred in failing to criticize Busways for not calling witnesses in relation to Mr Dissanayake’s conduct on 3 August 2010 is without foundation. Evidence was before the Deputy President on that conduct, including video evidence. The Deputy President’s conclusions about Mr Dissanayake’s conduct on 3 August 2010 were open to him on the evidence that was presented to him. The Deputy President’s decision reveals that his conclusion that Mr Dissanayake’s conduct on 3 August 2010 constituted a valid reason for Mr Dissanayake’s dismissal was not reliant on any person having been injured by the conduct. 10

[12] We do not need to deal with Mr Dissanayake’s submissions that the Deputy President erred in his conclusions that Mr Dissanayake’s conduct on 16 August 2010 constituted a valid reason for his dismissal. As indicated, we are not persuaded the Deputy President erred in concluding Mr Dissanayake’s conduct on 3 August 2010 constituted a valid reason for his dismissal and the Deputy President found that Mr Dissanayake’s conduct on 16 August 2010 constituted another and separate valid reason for Mr Dissanayake’s dismissal.

Procedural fairness in the dismissal

[13] Mr Dissanayake submits he was denied procedural fairness in his dismissal in that his conduct on 3 August 2010 was not raised with him until shortly before his dismissal on 19 August 2010, Busways did not raise the allegations about his conduct on 3 August 2010 in a format he could understand and the decision to dismiss him was made before he was notified of the valid reason for his dismissal and given an opportunity to respond.

[14] We do not need to deal with Mr Dissanayake’s submissions that there was an absence of procedural fairness in his dismissal to the extent it was based on his conduct on 16 August 2011. This is because we are not persuaded the Deputy President erred in concluding Mr Dissanayake’s conduct on 3 August 2011 was sufficient to constitute a valid reason for his dismissal.

[15] In dealing with the issue of procedural fairness, the Deputy President said the following:

[16] In our view, the Deputy President’s conclusions in respect of the procedural fairness afforded to Mr Dissanayake and to the effect that Mr Dissanayake’s dismissal was associated with the requisite procedural fairness were open to him on the evidence before him. We detect no error in the Deputy President’s decision in respect of the matters in ss.387(b) to (d) of the FW Act. Mr Dissanayake’s submissions as to error in this regard are without foundation.

Mr Dissanayake’s employment history

[17] In respect of Mr Dissanayake’s employment history, in his decision the Deputy President said:

[18] Mr Dissanayake submitted the evidence on his employment history was inadequate.

[19] It is apparent from the Deputy President’s decision that Mr Dissanayake’s employment history did not form part of the Deputy President’s decision that there was a valid reason for Mr Dissanayake’s dismissal. Rather it comprised part of the matters the Deputy President took into account in respect of s.387(h) of the FW Act.

[20] We think there was sufficient material before the Deputy President for him to reach the conclusions he did in respect of Mr Dissanayake’s employment history. We detect no error in the regard the Deputy President had to Mr Dissanayake’s employment history.

Procedural fairness in the proceedings

[21] There is no substance to Mr Dissanayake’s claims that there was an absence of procedural fairness in the manner in which the Deputy President conducted the proceedings in respect of Mr Dissanayake’s unfair dismissal remedy application.

[22] The transcript reveals Mr Dissanayake and his representative were given adequate and appropriate opportunity to address the matters relevant to Mr Dissanayake’s application.

Mr Dissanayake’s credibility

[23] At paragraph 101 of his decision, the Deputy President says:

[24] Mr Dissanayake objects to this paragraph, particularly the examples set out in the paragraph. Further, Mr Dissanayake objects to findings the Deputy President made on a bullying and harassment claim made by Mr Dissanayake. However, we are not persuaded they constitute appealable error. An objective reading of the Deputy President’s decision reveals the examples and the findings on the claim were not significant to the Deputy President’s conclusions in respect of the matters in s.387 of the FW Act and his conclusions in respect of the matters were based on a sound analysis of the evidence.

Conclusion

[25] For the foregoing reasons, we are not persuaded the Deputy President erred in concluding Mr Dissanayake’s dismissal by Busways was not harsh, unjust or unreasonable. Mr Dissanayake has not established that it is in the public interest that we grant him permission to appeal. We refuse Mr Dissanayake permission to appeal and dismiss his appeal. An order 11 to that effect is being issued at the same time as this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

S. Dissanayake appearing on his own behalf.

M. Gibian, of counsel, for Busways Blacktown Pty Ltd.

Hearing details:

2011.
Sydney:
August, 25.

Endnotes:

 1   Siriwardana Dissanayake v Busways Blacktown Pty Ltd, [2011] FWA 3549.

 2   Siriwardana Dissanayake v Busways Blacktown Pty Ltd, PR510420.

 3   Siriwardana Dissanayake v Busways Blacktown Pty Ltd, U2010/11936.

 4   Siriwardana Dissanayake v Busways Blacktown Pty Ltd, [2011] FWA 3549 at paragraph [114].

 5   Siriwardana Dissanayake v Busways Blacktown Pty Ltd, [2011] FWA 3549 at paragraph [119].

 6   Siriwardana Dissanayake v Busways Blacktown Pty Ltd, [2011] FWA 3549 at paragraph [134].

 7   Siriwardana Dissanayake v Busways Blacktown Pty Ltd, [2011] FWA 3549 at paragraph [135].

 8   Siriwardana Dissanayake v Busways Blacktown Pty Ltd, [2011] FWA 3549 at paragraph [137].

 9   Siriwardana Dissanayake v Busways Blacktown Pty Ltd, [2011] FWA 3549 at paragraph [112].

 10   Siriwardana Dissanayake v Busways Blacktown Pty Ltd, [2011] FWA 3549 at paragraph [109].

 11   PR514843.

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