[2013] FWC 3507 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Janusz Tymoszuk
v
ComfortDelgro Cabcharge Pty Ltd T/A Westbus Region 1
(U2012/14542)
DEPUTY PRESIDENT BOOTH |
SYDNEY, 6 JUNE 2013 |
Termination of employment - alleged unfair dismissal.
[1] In this matter Mr Janusz Tymoszuk (the applicant) asks the Fair Work Commission (the Commission) to exercise its discretion under s.394 of the Fair Work Act 2009 (the Act) to grant a remedy for unfair dismissal in relation to the termination of his employment from ComfortDelgro Cabcharge Pty Ltd T/A Westbus Region 1 (the respondent) on 10 October 2012. The remedy sought in this matter is reinstatement.
[2] The application was lodged on 25 October 2012 and a telephone conciliation was conducted on 19 November 2012. The matter was not resolved at conciliation and was listed for hearing in relation to an extension of time application on 8 February 2013, but this date was later vacated at the request of the parties. On 28 February 2013, the matter was listed for hearing on 9-10 May 2013, later amended to 9 May 2013 when the matter came before me.
[3] The applicant was represented by Mr Guy of the Transport Workers’ Union of Australia (TWU) and Mr Boyce of Counsel was given permission to appear for the respondent with Mr Brett of FCB Workplace Law.
[4] Submissions and witness statements were received pursuant to directions issued by Fair Work Australia (FWA), as it then was, and Orders Requiring Production of Documents were issued on the application of the respondent in relation to telephone records from a number of telecommunications providers.
Background facts
[5] The parties prepared an agreed statement of facts and issues. Witness evidence was given by the applicant; Mr Randall Horton, Depot Manager, Westbus at the St Marys depot; Mr Philip Davies, Assistant Manager, Westbus at the Windsor depot and formerly the St Marys depot and Mr Simon Bosnjak, General Manager Sydney for the respondent. CCTV footage was viewed whilst evidence was given.
[6] Based on this material and the evidence given I conclude the following:
[7] The respondent is the largest private bus operator in Sydney employing around 1,450 employees and operating a fleet of around 1,266 buses under the brands Hillsbus, Westbus, Hunter Valley buses and Queanbeyan buses.
[8] The applicant was employed by the respondent as a Westbus bus driver based at the St Marys depot from August 1998 until his termination on 10 October 2012.
[9] The respondent has a policy to control the use of mobile phones by bus drivers. The policy is titled “Use of Mobile Phones (Buses)” (the mobile phone policy) which was issued to and received by the applicant on 16 May 2012.
[10] The policy relevantly states:
“In the interest of abiding with the law and upholding public safety, under no circumstances are employees who are in control of a bus or maintaining buses permitted to use a mobile phone......for any function or purpose whilst they are operating or working on a CDC bus.
...........a mobile phone can be used only after the vehicle has been safely parked and secured with the handbrake applied.
Any breach of this policy will be considered a serious safety breach which will result in summary dismissal.” 1
[11] The applicant beached this policy on Friday 28 September 2012 when he used his mobile phone while in control of a bus on two occasions, once to receive an incoming call and once to make an outgoing call. The respondent was alerted to this breach by a complaint from a member of the travelling public that was received on 2 October 2012.
[12] At a meeting on 9 October 2012, the applicant was asked whether he had:
(a) received the respondent’s mobile phone policy of 16 May 2012; and
(b) used a mobile phone on 28 September 2012 whilst driving a bus for the respondent.
The applicant made direct admissions in relation to both (a) and (b).
[13] During the meeting on 9 October 2012 the applicant made the respondent’s managers aware of the reasons for this breach of the mobile phone policy on 28 September 2012 in relation to the phone call he had received that day.
[14] At the conclusion of the meeting on 9 October 2012, the applicant’s employment with the respondent was terminated summarily for breach of the mobile phone policy on 28 September 2012. The termination was confirmed in writing by way of letter dated 10 October 2012.
[15] The applicant agrees that there was a valid reason for the dismissal.
[16] By way of letter dated 10 October 2012, the applicant appealed the decision to terminate his employment.
[17] By way of letter dated 19 October 2012, the applicant’s appeal was dismissed by the respondent. 2
[18] The applicant is married with two sons, Gabrielle, aged 24 and Sebastian aged 35. Gabrielle lives at home and at the relevant time was employed full time by Telstra. Sebastian lives separately and is married to Kylie. Sebastian and Kylie have a son, Oliver.
[19] Sebastian is an information technology specialist and deploys his skills in a number of locations including Papua New Guinea and Christmas Island. He has a history of travel to such locations.
[20] In the period leading up to Friday 28 September Sebastian had travelled to Papua New Guinea and the applicant was anxious about his safety and welfare. His anxiety was exacerbated by the knowledge that a year earlier a colleague had been killed in a plane crash.
[21] Sebastian had safely returned from Papua New Guinea on or around Sunday 23 September, however, the applicant was not aware of this fact until Friday 28 September 2012.
[22] On 28 September 2012, the applicant drove a bus on route 797, trip number 6, departing Penrith railway station at 10.39am returning to Penrith railway station at 11.37am. He had a break then drove a bus on route 770, trip number 7, departing Penrith railway station at 11.46 am concluding at the Mt Druitt Interchange at 12.51pm.
[23] On 28 September 2012, the following phone calls were made:
1. 10.42 am Kylie called the home number of the applicant, 8 mins and 21 seconds
2. 11.35 am the applicant called his home number, 3 mins and 51 seconds
3. 11.42 am the applicant called Kylie, 18 seconds
4. 11.43 am the applicant called Sebastian’s mobile, 13 seconds
5. 12.01 pm Kylie called the applicant’s mobile, 1 min and 37 seconds (first call on cctv footage)
6. 12.09 pm the applicant called his home number, 15 seconds (second call on cctv footage) 3
[24] It is more likely than not that Mrs Tymoszuk was the recipient of call number 1 from Kylie as it is more likely than not that Gabrielle was at work and the only person at the home of Mr and Mrs Tymoszuk was Mrs Tymoszuk. Given the applicant’s concerns it was more likely than not that Kylie informed Mrs Tymoszuk that Sebastian was home safely.
[25] It is the applicant’s evidence 4 that Mrs Tymoszuk was the recipient of call number 2 from himself, made in his break following trip 6 on route 797. His evidence was that he does not recall what he spoke to her about although it was “highly likely” that he raised his concerns about Sebastian’s safety with her.5 It is more likely than not that given the applicant’s focus on that day was on his son’s safety, Mrs Tymoszuk advised the applicant that Sebastian was home safely.
[26] Calls 3 and 4 were made in the applicant’s break.
[27] The applicant’s evidence was:
“on the day before the trip I made two calls without answer to my son and daughter-in-law.” 6
[28] It is more likely than not that calls 3 and 4 were these calls and that the applicant was well aware that his son was home safely by the time he made calls 3 and 4. If this was the case his evidence to the effect that his anxiety was exacerbated by these calls not being answered, prompting him to take the call from Kylie when it came in while he was on the bus, was disingenuous.
[29] Calls 5 and 6 were the calls that breached the mobile phone policy. Call 5 was answered by the applicant whilst in control of a bus and call 6 was made by the applicant whilst in control of a bus.
[30] Call 6 was from the applicant to his home. The applicant said in evidence:
“and I realise afterwards I forgot to turn it off as I usually do, turn it off mobile phone, and there was, brief, you know, call my wife, who was going out of head to know what’s happened to them, and I wanted to briefly tell her that he’s alive, not like his colleague, which died in single plane crash about a year ago”. 7
[31] It is more likely than not that call 6 was the call referred to in this evidence. The applicant gave evidence that he did not think that he actually spoke to his wife on that call. 8 It is more likely than not that the applicant was aware that his wife knew that his son was home safely by the time he made call 6 and that his evidence concerning his intention in making the call was dramatised for effect.
Contentions
[32] The applicant accepts that there was a valid reason for his dismissal but that the Commission should find that the dismissal was harsh, unjust or unreasonable and that the applicant should be reinstated or compensated.
[33] The respondent contends that the applicant’s conduct was serious misconduct in terms of the Act and that the summary dismissal of the applicant should not be overturned by the Commission.
Statutory framework
[34] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 Unfair Dismissal of the Act. In this matter there is no contest that the applicant is a person who is protected from unfair dismissal pursuant to s.382 of the Act and I must apply ss.385 - 387 of the Act, which read as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if 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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, 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 FWC considers relevant.”
[35] I must apply my mind as to whether the applicant was unfairly dismissed. There is no dispute that he was dismissed so s.385(a) of the Act is satisfied. The respondent is not a small employer and, therefore, s.385(c) is not relevant. There is no contention that this is a case of genuine redundancy so s.385(d) does not apply. Therefore, in determining whether the applicant was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable.
[36] If I find that the applicant was unfairly dismissed I then must apply the provisions of Division 4 of the Act in order to determine the appropriate remedy as between reinstatement or the payment of compensation.
[37] Guidance as to the meaning of the expression “harsh, unjust and unreasonable” can be found in the decision of Sheppard and Heery JJ in Bostik (Australia) Pty Ltd v Dimitrja Gorgevski where their Honours said, in relation to the wording of Clause 9 of the Manufacturing Grocers Award 1985:
“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.”
Consideration
[38] In considering whether the applicant’s dismissal was harsh, unjust or unreasonable I will deal with each of the matters I am required to consider in turn.
(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)
[39] It is conceded by the applicant that the respondent had a valid reason for dismissing him. I concur. He admits that he breached the mobile phone policy as well as the NSW road rules. I accept that he did not resile from that and to that extent was candid with his employer and the Commission.
[40] I conclude from the evidence of Mr Bosnjak and a viewing of the CCTV footage that the applicant was putting the safety of himself, his passengers and road users at risk. He missed two bus stops that the bus was meant to stop at while using his mobile phone. He is seen to bring the bus into contact with leaves hanging from the branches of trees on the side of the road as he proceeds down the road in control of the bus while using his mobile phone. He is seen to stare down at the phone with his eyes off the road for a period of time.
[41] The respondent contends that the applicant’s conduct constituted serious misconduct in terms of the Act and the common law.
[42] Regulation 1.07 of the Fair Work Regulations 2009 defines serious misconduct as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.
(5) For paragraph (3) (b), an employee is taken to be intoxicated if the employee’s faculties are, by reason of the employee being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the employee is unfit to be entrusted with the employee’s duties or with any duty that the employee may be called upon to perform.”
[43] The applicant’s driving performance whilst using the mobile phone was, in my opinion, a risk to the safety of himself, passengers and other road users and, evidenced by the customer complaint, the reputation, viability or profitability of the employer’s business was at risk of compromise. I agree with the submission of the respondent that he was guilty of serious misconduct in terms of the Act.
(b) whether the person was notified of that reason
[44] It is not in dispute that he was notified both orally in a meeting on 9 October 2012 and in writing, in a letter dated 10 October, of the reason for his dismissal.
[45] There is no contribution to a finding that his dismissal was harsh, unjust or unreasonable from this factor.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[46] He was given an opportunity to respond to the reasons for his dismissal both in the meeting of 9 October 2012 and through the respondent’s appeals process which he availed himself of.
[47] Mr Guy made the submission that the appeals process was one sided because Mr Bosnjak spoke to the manager who dismissed the applicant but declined to meet with the applicant to hear his side of the story. I agree that ideally Mr Bosnjak would have met with the applicant. It would have helped the applicant comprehend his fate and would not have been onerous given that the respondent does not summarily dismiss employees every day of the week. However, I accept Mr Bosnjak’s evidence that he believed he had all the information he needed to review his manager’s decision and no evidence was put of what additional information could have been brought to Mr Bosnjak's attention that was not contained in the applicant’s letter.
[48] There is no contribution to a finding that his dismissal was harsh, unjust or unreasonable from this factor.
(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
[49] It is agreed that the applicant was given an opportunity and availed himself of the opportunity to have a TWU delegate as a support person at the meeting on 9 October 2012.
[50] There is no contribution to a finding that his dismissal was harsh, unjust or unreasonable from this factor.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[51] This factor is not relevant as the applicant’s performance was not in question.
(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
[52] This factor is not relevant as the respondent is a large employer.
(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
[53] This factor is not relevant as the respondent has a dedicated human resource function.
(h) any other matters that FWC considers relevant
[54] The applicant says his dismissal was harsh for four reasons.
[55] Firstly, that the respondent did not give the applicant a reasonable opportunity to respond when dismissed. I have addressed this matter in (c) above.
[56] Secondly, the gravity of the misconduct and the manner in which he was driving the bus whilst on the phone. Far from leading to a conclusion that the dismissal was harsh I think these factors confirm the reasonableness of the decision the employer made.
[57] The policy and the road rules are designed to prevent accidents that could prove fatal to the drivers of vehicles, passengers and other road users. This is no mere trifling policy the breach of which is to be dismissed as insignificant. It is a sensible policy the breach of which is a serious matter. Mr Guy reminded me of the decision I made in Abbas Nasrieh v ComfortDelgro Cabcharge (Nasrieh decision) on 12 November 2012. 9 This case turned on its own facts, amongst them that the applicant in that case was not aware that the policy had recently changed (the offence having been committed in June 2012 when the new policy was released in May 2012 and the evidence suggested he had not received the new policy). Workplace policies must be well communicated, a point I made in that case, and in Mr Bosnjak’s evidence he said:
“We’ve recently – we have a new system at work where employee sign on using a swipe card and we’ve been putting out constant messages about the use of mobile phones, about runaway buses. Any strong messages we’re actually putting out, so as the employee signs on they are reading these messages, acknowledging that they read it and understood it and continue on their runs.”
[58] That enhancement is to be applauded. Employees must be given a reasonable opportunity to be aware of a policy before it is reasonable to discipline them for breaching it. However, in this case the applicant concedes he was aware of the policy. His response to a question about the duration of call 5 was:
“I broke already the policy when I answer call 15 – when I try for 15 seconds, so what it matter if is minute and 40?”
[59] In this response the applicant reveals a distain for the underlying purpose of the policy - to keep himself and others safe.
[60] I have already addressed the manner in which he was driving the bus whilst on the phone and I do not believe the applicant’s case is assisted by this argument.
[61] Thirdly, the length of service and otherwise uneventful work history of the applicant. I accept the submission that the applicant had an “uneventful work history”. There is no suggestion from the respondent that the applicant was not a valued employee before this incident. Regrettably, the incident and the way it has been explained by the applicant combine to overwhelm the positive contribution of the applicant’s record to the merit of his case.
[62] Fourthly, the personal and economic circumstances facing the applicant. He is 59 and his evidence is that he has not been able to find another job and he is facing economic hardship. This is very unfortunate but it is not an unusual consequence of dismissal and does not, on its own, lead to a finding that the dismissal is harsh.
[63] The applicant also relied on the Nasrieh decision to propose that the Commission should take into account the extenuating circumstances facing the applicant on 28 September 2012. Unfortunately, this decision appears to have been taken as something of a “road map” on how to defend a breach of the mobile phone policy in the respondent’s business. It appears to me that the applicant has reverse engineered his circumstances to seek to make a parallel with the Nasrieh case and on the evidence this parallel is simply is not available to him. The evidence discloses that the applicant was anxious, however, his anxiety ought to have been alleviated by the time he spoke to his wife at 11.35am before he embarked on trip 7 on route 770 during which he breached the policy. I conclude that at best he embellished the circumstances. Mr Boyce says an inference can be drawn both from the facts of calls 1 and 2 themselves and from the absence of bringing Kylie as a witnesses, with no explanation for not doing so. If Kylie did indeed tell the applicant for the first time in call 5 at 12.01pm that Sebastian was home safely then why not come along and say so. I think it is reasonable to draw the inference that her evidence would not have assisted the applicant.
Conclusion
[64] I have found that that the applicant’s conduct constituted a valid reason for dismissal and that this conduct amounted to serious misconduct. I have found that he was afforded procedural fairness in the process of his dismissal. As did the Full Bench in Parmalat Food Products Pty Ltd v Mr Kasian Walilo 10 I have considered whether there are such significant mitigating factors present as to leave a conclusion of harshness open. I have concluded that there are not.
[65] Taking all of the above into account I find that the applicant’s dismissal was not harsh, unjust or unreasonable and thus not unfair. The question of remedy does not arise as the application is dismissed.
DEPUTY PRESIDENT
Appearances:
A Guy, Transport Workers’ Union of Australia, New South Wales Branch, for Mr Janusz Tymoszuk
C Boyce, of Counsel, with T Brett, FCB Workplace Law, for ComfortDelgro Cabcharge Pty Ltd T/A Westbus Region 1
Hearing details:
2013.
Sydney:
9 May.
1 Statement of Agreed Facts and Issues, PN4
2 Ibid., PN10-15
3 Summary of calls made/received on 28 September 2012, Exhibit R7
4 Transcript PN126
5 Ibid. PN142-157
6 Ibid. PN41
7 Ibid.
8 Ibid. PN133
9 [ 2012] FWA 9617
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