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.
Associate to Senior Deputy President Acton
Dated: 22 September 2011
 FWAFB 6487
Fair Work Act 2009
s.604 - Appeal of decisions
Busways Blacktown Pty Ltd
SENIOR DEPUTY PRESIDENT ACTON
Appeal against decision [ FWA 3549] and order [PR510420] of Deputy President Sams at Sydney on 23 June 2011 in matter number U2010/11936.
 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).
 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:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
 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.
 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:
(a) the applicant was notified of the reason for his dismissal; s.387(b) of the Act;
(b) at all relevant times, the applicant was fully aware of the allegations against him; and
(c) the applicant was afforded opportunities to defend himself against the allegations (s 387(c) of the Act).” 6
 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
 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
 Mr Dissanayake’s grounds of appeal are, in summary, that the Deputy President erred:
 We will deal with these grounds of appeal in turn.
 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.
 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.
 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
 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
 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.
 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.
 In dealing with the issue of procedural fairness, the Deputy President said the following:
“ The evidence, particularly that of Mr Yearsley, which I accept, overwhelmingly supports a conclusion that the applicant refused to co-operate with the respondent in the two disciplinary meetings held on 17 and 19 August 2010. The meetings were intended to allow him to give his version of events. His reason for not answering questions was because he wanted to see the actual complaints. Apart from the fact that it was Company policy not to provide the actual complaint to an employee, largely due to privacy reasons (see earlier par 35), it is only necessary, as a matter of procedural fairness, that the applicant was fully aware of the allegations being made against him. Given that Mr Mason read out the complaints and the applicant was shown CCTV footage of the incidents, I do not apprehend how it could possibly be argued that the applicant was denied procedural fairness by not being provided with the passenger’s complaint or the students’ statements. I have no doubt that the applicant knew precisely what was being alleged against him and his failure to co-operate, reflects very poorly on him. If it was a tactic designed to deflect attention from his own conduct and behaviour, it failed miserably...
 There was some criticism that the respondent did not speak to everyone who had known of, or who witnessed the incidents. There is no basis, let alone a requirement, for a claim of procedural unfairness, that an employer must speak to every person who may have witnessed or who had knowledge of an incident. The correct test is whether the respondent had gathered sufficient material to be satisfied that the allegations against the applicant had been sustained and that the allegations were a valid reason for his dismissal. In addition, I do not accept the personal criticism of Mr Tisse for not interviewing the applicant, for not watching the CCTV footage and for not going though the applicant’s file in detail. Firstly, it was not necessary for Mr Tisse to review every aspect of the evidence against the applicant. He was perfectly entitled to have regard for the information conveyed to him by his senior managers. Secondly, even if Mr Tisse expressed a view about what should happen (which I will come to momentarily), his evidence was that Mr Mason, in any event, had delegated authority to dismiss employees.
 In my view, Mr Tisse was a witness of credit. His evidence was measured, thoughtful and had a ‘ring of truth’ about it. I reject the allegation that Mr Tisse had said ‘sack him’ or ‘he’s got to be gone’ before the school bus incident had been put to the applicant. Mr Tisse’s evidence was that he said:
‘This particular incident on the 3rd was extremely serious, so go and talk to him and find out what has actually happened. And if he has actually wilfully done this and put the children’s lives at risk, that’s a very serious matter and we can’t employ a bus driver who has done that.’
 I do not accept that this evidence (corroborated by Mr Cooper), was fatally inconsistent with Mr Mason’s evidence. Mr Mason might well have understood Mr Tisse to have given him authority to dismiss the applicant, but it was a conditional authority. Surely, Mr Tisse was saying no more than if the allegations are proven, then the applicant should be dismissed. This was an unremarkable and entirely rational response. For it to be elevated as some fatal flaw in the process, is to ignore the context of the meeting, the reality of the situation and my acceptance of Mr Tisse’s and Mr Cooper’s evidence in this respect.
 Another cause of complaint was Mr Yearsley’s attendance at the meetings. There is no doubt that Mr Yearsley was asked to attend the meeting by Management as he was the Union co-delegate. However, there can be no criticism of Mr Yearsley. I found him to be an impartial and reliable witness. I accept that the applicant had not nominated Mr Yearsley as a support person; but conversely there was no evidence of the applicant asking for a support person and being denied the request. Indeed, the applicant said he did not ask because he did not see the point, because he knew the request would be rejected. While I do not accept this hypothetical expectation of the applicant, it sits rather oddly with his insistence of being given the written complaints and his failure to co-operate during the meetings. In any event, the test in s 387(d) of the Act, is not that the applicant was not offered a support person of his choice, but that ‘there was an unreasonable refusal by the employer to allow a support person to be present’. On the applicant’s own evidence, there was no request for a support person and, logically, there could have been no unreasonable refusal by the employer. Accordingly, the respondent was not in breach of subsection (d) of s 387 of the Act.”
 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
 In respect of Mr Dissanayake’s employment history, in his decision the Deputy President said:
“ Incredibly, when the applicant was faced with the incident / occurrence report identifying 73 complaints or incidents involving him over five years, including over 21 complaints of rudeness to customers, and a final written warning for rudeness in January 2010, he simply denied all of the complaints, or he blamed the passengers. It was as if his denials meant that the incidents did not happen and could not be relied upon by the respondent. The applicant claimed he was always the victim. However, in my view, he took no responsibility for his actions. Even when he was observed not having two hands on the steering wheel, he gave a convoluted and disjointed answer as to whether this was safe.
 In addition, the applicant claimed he was never rude to, or angry with, any passenger. He said he was an exemplary employee and bus driver - a model employee. Well, if this was a record of an exemplary employee, I shudder to think what a poor employee’s record would look like. In my opinion, the applicant had an unjustified, overblown and exaggerated opinion of himself completely at odds with reality. Surely, dozens of passengers cannot all be wrong, notwithstanding the likelihood of a larger number of other passengers who did not take the trouble to complain. Perhaps one or two allegations of rudeness might result in giving him the benefit of the doubt - but over 20 unrelated complaints over five years cannot be a figment of someone’s imagination...
Past record of employment
 It was the applicant’s case that the record of employment containing 73 incidents / complaints was not a disciplinary record and, consequently, could not be relied upon by the respondent in its decision to dismiss him. In addition, it was seriously put that the respondent could not rely on the final written warning, because the applicant did not accept the validity of the warning.
 Firstly, it must be said that an employee’s denial of a written warning does not negate the employer’s reliance on it. If this was so, then the issuing of written warnings would have very little relevance in assessing an employee’s performance. It would mean that an employee could merely deny the basis of the warning and it would not have any effect or ramifications. This is an absurd proposition. Moreover, the purpose of a warning is to demonstrate the seriousness with which an employer regards an employee’s performance and/or conduct with a positive view to altering it. Sadly, nothing worked in this case because the applicant simply denied he was ever guilty of any wrongdoing. Indeed, he claimed he was a model employee. This was patently untrue.
 In any event, in deciding to dismiss the applicant, the respondent was perfectly entitled, indeed obliged, to take into account, not only the final written warning, but also what could only be described as an abysmal record of employment over five years...
 While the applicant was dismissed for serious and wilful misconduct there can be no doubt that his performance was unsatisfactory and that he had received numerous warnings about his performance .. and conduct. It was only a matter of time, I believe, before this appalling record would have eventually caught up with him...
 ... The other matters I consider relevant to this case (s 387(h) of the Act) have been extensively canvassed throughout this decision.”
 Mr Dissanayake submitted the evidence on his employment history was inadequate.
 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.
 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
 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.
 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
 At paragraph 101 of his decision, the Deputy President says:
“ Before dealing with the two specific incidents, I wish to make some general comments on my observations of the applicant in the witness box and his evidence. Unfortunately, I am compelled to conclude that the applicant would say almost anything, no matter how implausible - even untruthful - to refute or distort every allegation or complaint made against him. Three examples of his untruthfulness were, firstly, he claimed to have radioed Mr Gin to report the students’ behaviour on the bus; but when presented with irrefutable evidence that no such call was made, he was forced to withdraw that evidence. Secondly, he claimed that there were other passengers on the bus during the passenger incident, who presumably could corroborate his evidence that it was the passenger who was the aggressor. The CCTV footage shows no other passengers on the bus at the time. Thirdly, the applicant said, in response to the allegation he had left a dirty bus, that he always swept his bus. The CCTV footage did not show him sweeping the bus.”
 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.
 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
S. Dissanayake appearing on his own behalf.
M. Gibian, of counsel, for Busways Blacktown Pty Ltd.
1 Siriwardana Dissanayake v Busways Blacktown Pty Ltd,  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,  FWA 3549 at paragraph .
5 Siriwardana Dissanayake v Busways Blacktown Pty Ltd,  FWA 3549 at paragraph .
6 Siriwardana Dissanayake v Busways Blacktown Pty Ltd,  FWA 3549 at paragraph .
7 Siriwardana Dissanayake v Busways Blacktown Pty Ltd,  FWA 3549 at paragraph .
8 Siriwardana Dissanayake v Busways Blacktown Pty Ltd,  FWA 3549 at paragraph .
9 Siriwardana Dissanayake v Busways Blacktown Pty Ltd,  FWA 3549 at paragraph .
10 Siriwardana Dissanayake v Busways Blacktown Pty Ltd,  FWA 3549 at paragraph .
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