DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Nieuwpoort
v
South West Transit Group Pty Ltd

(U2017/5350)

Application for an unfair dismissal remedy. Summary termination and serious misconduct. Fair Work Act Regulations considered not relevant to establishing valid reason.

[1] In this matter Mr Ian Nieuwpoort (the applicant) alleges that he was unfairly dismissed from his position as a bus driver with South West Transit Group Pty Ltd (the respondent).

[2] At the hearing of this matter the applicant was represented by Mr Glen Ferguson who stated his representation was on a pro bono basis. The respondent was represented by Mr Ian MacDonald of the Australian Public Transport Industrial Association.

[3] The application named the employer as ‘The Trustee for the South West Transit Group Unit Trust’. The employer response filed by the respondent, while not raising the identity of the employer as an issue, named the employer as the ‘South West Transit Group Pty Ltd’.

[4] During the hearing the identity of the correct employer was raised by the Commission; the applicant, on invitation, subsequently made an application to amend their application to reflect the correct legal name of the respondent being South West Transit Group Pty Ltd. This was not objected to by the respondent. Pursuant to s.586(a) of the Fair Work Act 2009 Act (FW Act), the application is amended to reflect the name of the true and correct employer.

Evidence of Mr Nieuwpoort

[5] Mr Nieuwpoort prepared a witness statement¹ and gave evidence. He did not call any witnesses to support his application.

[6] Mr Nieuwpoort stated that he commenced his employment with the respondent in August 2010, 2 working as a bus driver and was excused from attending an induction training course as his rest period between shifts was limited. Mr Nieuwpoort stated that during his employment he was not aware of any complaints or issues of performance that would cause any concern.

[7] It is the Applicant’s evidence that on Monday 1 May 2017, when attending the depot, he noticed a Post-it® note attached to his employee pigeon hole requesting that he examine his current driver’s licence. On examining his driver’s licence he realised that the expiry date had recently passed on 10 April 2017. He then spoke to Ms Amanda Sopolinski, the second in charge in the office, and stated words to the effect:

‘This one has passed its expiry date, Laura my wife must have the new one at home.’

[8] Ms Sopolinski then said words to the effect of:

‘go quickly … (whilst indicating for me to drive the bus) and sort it out as fast as possible’.

[9] The applicant stated he then contacted his wife by phone and requested that she check to see if she had renewed his driver’s licence and for her to advise him as soon as possible.

[10] He stated he then departed the depot undertaking his driving duties without confirmation that his driver’s licence had been renewed.

[11] Mr Nieuwpoort stated that he was shocked to find his driver’s licence may not have been renewed, particularly as he was an employee safety representative at the depot. He continued to drive as his head was ‘spinning like crazy’ and it was already time for him to leave the depot on his bus run.

[12] On return home at the end of his shift, the applicant stated that his wife advised that she had not renewed his driver’s licence and was unable to as he was required to personally attend at a licence centre because a current photograph was required.

[13] That evening he telephoned Ms Denise Currie-Gamon the Bunbury Depot Operations Manager and explained the situation and that he would be attending a licencing centre the next morning to renew his driver’s licence. Ms Currie-Gamon told him not to drive the following day. Mr Nieuwpoort told Ms Currie-Gamon that his licence had expired ‘the day before last’, which he acknowledged in cross examination was not true.

[14] On the morning of 3 May 2017, he was called into the office to speak to Ms Currie-Gamon and Ms Natalie Gough, the respondent’s Senior Operations Manager. The applicant stated that after he explained what had happened on Monday 1 May 2017, his employment was summarily terminated, i.e. without any notice or payment in lieu of notice. Mr Nieuwpoort was of the view that the respondent had already determined that he would be dismissed summarily prior to the meeting and was not interested in his explanation.

[15] Mr Nieuwpoort agreed that he told both Ms Currie-Gamon and Ms Gough that when he was questioned about whether he had a current driver’s licence he could have just lied about it, but didn’t.³

[16] Mr Nieuwpoort subsequently received written reasons for his dismissal in correspondence dated 4 May 2017, which stated:

“The decision to drive without a valid Driver’s License is a breach of Serious Misconduct (sic) and as result (sic) your employment is terminated effective 3rd May 2017.”

[17] In cross examination Mr Nieuwpoort, while accepting that his driving licence renewal was his responsibility, did not accept that he did not have a valid licence to drive a motor vehicle following its expiry, but rather he had an unpaid driver’s licence. 4 Mr Nieuwpoort’s evidence was that despite the expiry of his driver’s licence he was still able to legally drive a motor vehicle for a further 6 month period.5

[18] Mr Nieuwpoort explained that his wife had assumed responsibility to look after all household payments including his driver’s licence renewal; the licence not being renewed was a genuine oversight. Prior to 1 May 2017, he had not discussed the renewal of his driver’s licence with his wife.

[19] Mr Nieuwpoort’s understanding was that Ms Sopolinski had a responsibility to arrange for a replacement driver, which she didn’t, and had allowed him to drive with an apparently expired driver’s licence, on 1 May 2017.

[20] In total Mr Nieuwpoort drove 5 shifts on an expired driver’s licence, including the shift on 1 May 2017, when it was first brought to his attention that his driver’s licence appeared to have expired.

[21] Since his termination of employment, despite his best efforts, he has remained unemployed. Mr Nieuwpoort gave examples of the positions he had sought since his termination, with one potential employer being aware of his dismissal by the respondent. Due to his age and reason for his dismissal, he believed that the prospects of finding future work were slim.

[22] He believed that he had a good working relationship with the respondent and prior to this incident had no previous issues with his employer.

Submissions of Applicant

[23] In addition to the applicant giving evidence, Mr Ferguson sought to call Mr Cornelius Bayens, a retired WA Police Officer with 30 years’ service, as an expert witness to give opinion evidence about how the Road Traffic Act 1974 (WA) and the Road Traffic (Authorisation to Drive) Act 2008 (WA) are applied and interpreted. This evidence was opposed by the respondent on the basis that Mr Bayens was not an expert witness in the interpretation of WA road traffic legislation. The Commission was of the view that while Mr Bayens had extensive experience as a Police Officer, his knowledge, training and education did not qualify him as an expert on interpreting WA road traffic legislation and regulations and that his opinion evidence would not assist the Commission.

[24] The applicant’s case was put on the basis that when he was advised that his driver’s licence appeared to not have been renewed, the respondent allowed Mr Nieuwpoort to complete his driving duties for the day.⁶ During his 1 May 2017, shift he was not contacted by the respondent asking him to stop driving or return to the depot. The actions of Mr Nieuwpoort were said to be neither wilful nor deliberate.

[25] It was also put that the applicant’s termination of employment ‘was based upon ignorance of the West Australian Road Traffic Act and Regulations’,⁷ as such a valid reason for termination did not exist.

[26] Further that the summary nature of the dismissal was unfair on the basis of Mr Nieuwpoort’s unblemished employment record and 61 years of age.

[27] In its response to the unfair dismissal application the respondent stated that the applicant’s conduct was serious misconduct as per its Code of Conduct⁸. The applicant submits that this is not the case as the Code refers to behaviour that has the potential to cause catastrophic consequences to its operations, clients, staff and other members of the public. It was put that the driving of a motor vehicle on an expired driver’s licence did not have the potential to cause catastrophic consequences.

[28] It was submitted that Mr Nieuwpoort acted immediately to renew his driver’s licence once it was drawn to his attention that it had expired. There was no malice or intent to act contrary to the respondent’s policies.

Submissions of the respondent

[29] The respondent submitted that the applicant was terminated based on a valid reason and that he was provided with an opportunity to respond to the allegation of driving on an expired driver’s licence.

[30] According to the respondent, the decision to drive on an expired driver’s licence amounted to serious misconduct justifying summary termination. The respondent pointed to the definition of serious misconduct contained in the Fair Work Regulations at regulation 1.07. It was the respondent’s submission that in wilfully and deliberately driving with an expired driver’s licence, the applicant placed the reputation of the respondent at serious risk as its service contract requires all drivers to hold a valid driver’s licence.

[31] The respondent stated the actions of the applicant were in breach of the respondent’s Drivers, Aides and Wardens Handbook and Code of Conduct which puts all drivers on notice that they must maintain a current driver’s licence. It further stated that in any event, it is a well-known requirement that when driving a motor vehicle the driver must have a current driver’s licence.

[32] Further, the respondent submitted that the applicant had misled and attempted to limit the seriousness of his actions in discussions with the respondent’s representatives. As the misconduct was in the respondent’s view ‘wilful’, it was inconsistent with the applicant’s continued employment.

[33] The respondent does not accept that it in any way condoned or allowed the applicant to drive with an expired driver’s licence.

[34] The respondent also does not accept that there is any grace period allowing a person to continue to drive a motor vehicle after its expiry. 9

Evidence of Ms Denise Currie-Gamon

[35] Ms Currie-Gamon is the Operations Manager at the respondent’s Buswest Bunbury depot where the applicant worked as a bus driver. Ms Currie-Gamon stated that she had organised a comprehensive induction for the applicant in October 2016, where he was provided with a copy of the Drivers, Aides and Wardens Handbook and the Code of Conduct. The handbook states that drivers are required to maintain a current driver’s licence.¹⁰

[36] On 27 July 2016, Mr Nieuwpoort was written to regarding a change of employer. The correspondence states that he is required to hold and maintain the relevant class of driver’s licence. 11

[37] Ms Currie-Gamon stated that on the evening of Monday 1 May 2017, at around 6.00pm the applicant telephoned her and explained that he had driven a bus with an expired driver’s licence and apologised for this event. 12 On asking when it has expired Mr Nieuwpoort stated:

‘the day before last.’

[38] She then instructed the applicant to attend the depot the next day and assist in providing directions to other drivers.

[39] The next morning, Tuesday 2 May 2017, she reported the matter to the Senior Operations Manager Ms Natalie Gough. Ms Gough then investigated the matter as Ms Currie-Gamon was out of the office for the day.

[40] Ms Gough subsequently advised her that Mr Nieuwpoort’s driver’s licence had expired well before ‘the day before last’, which was the period he had advised the previous evening. Ms Gough then instructed her to ask the applicant to attend a disciplinary meeting the following day, being Wednesday 3 May 2017, to discuss what was considered by the respondent to be a breach of the law and company policy.

[41] Ms Currie-Gamon’s evidence was that they were keen to hear from the applicant his reasons for driving with an expired driver’s licence. She stated no decision to terminate his employment had been made before the meeting.

[42] Mr Nieuwpoort was advised of the meeting, including his right to bring a support person, although he did not avail himself of his right to bring with him a support person.

[43] Ms Currie-Gamon stated that at the meeting Mr Nieuwpoort again advised that he had forgotten to renew his driver’s licence and had assumed that his wife had taken care of it. He further stated that ‘he could have lied and this would have been fine’.

[44] Ms Curie-Gamon stated she did not believe that the applicant showed any remorse and did not appreciate the importance of holding a current driver’s licence. On these grounds Ms Currie-Gamon supported the immediate termination of the applicant’s employment. Ms Currie Gamon acknowledged that the applicant had a good employment record.

[45] Ms Currie Gamon stated that the respondent’s computer system notifies when drivers’ licences are up for renewal, although the drivers themselves are responsible for ensuring that they have a current driver’s licence. Ms Currie Gamon’s evidence was that transporting children without a valid driver’s licence heightened the seriousness of the conduct although she was unable to explain why this was the case. 13

Evidence of Ms Natalie Gough

[46] Ms Gough is the respondent’s Senior Operations Manager. On Tuesday 2 May 2017 she was advised by the Operations Manager Ms Denise Currie-Gamon that Mr Nieuwpoort had completed his shift the day before on an expired licence. It also appeared that he had done so since 24 April 2017, when on driving duties.¹⁴ Ms Gough then sought a statement from the Administrative Assistant Ms Sopolinski whose job includes advising drivers that they need to provide evidence of holding a current driver’s licence. Following this action Ms Gough sought a response from the applicant.

[47] A meeting was held on Wednesday 3 May 2017, with the applicant, Ms Currie-Gamon was also in attendance.

[48] Ms Gough stated that in response to her question as to why he drove a school bus “without a valid licence” on 1 May 2017, the applicant stated:

“I don’t know, but I could have also just lied and I would have been fine.”

[49] Ms Gough stated that she did not accept the applicant’s explanation that his wife was responsible for renewing his driver’s licence. Mr Nieuwpoort stated that he did not know why he had driven without a valid driver’s licence, but there was some confusion about the status of his driver’s licence. 15 At the time of the meeting the applicant had renewed his driver’s licence. While there was no definition of the phrase ‘correctly licenced’ in the Code of Conduct, Ms Gough was of the view that it included not having an expired driver’s licence.

[50] Ms Gough agreed that the applicant was not notified under the respondent’s processes prior to 1 May 2017, that his driver’s licence was about to expire.

[51] Ms Gough stated that at this meeting the applicant never suggested that he had been authorized by anyone to drive on an expired driver’s licence.

[52] Ms Gough stated that she believed the applicant was fully aware of the consequences of driving without a valid driver’s licence as it is explained to all drivers and well understood. Ms Gough stated that in her view Mr Nieuwpoort did not demonstrate any remorse at the meeting and, considering the employer’s Code of Conduct which has a zero tolerance to driving while not correctly licenced, it was decided that Mr Nieuwpoort’s employment should be terminated on the ground of serious misconduct. Ms Gough showed the applicant a copy of regulation 1.07 of the Fair Work Regulations 2009, relating to the meaning of serious misconduct at the 3 May 2017 meeting.

[53] Ms Gough stated that the action of driving ‘unlicenced’ was not only against the law but exposed the respondent to default under its various government contracts, where it can be issued with ‘demerit’ points for being in breach of the contract.

[54] The government contract referred to was the “Contract for Provision of School Bus Service” (Evergreen Contract) which at Part 1 Requirements for Drivers of Schedule 7 Drivers states, at 1(a), that the Contractor (respondent) must ensure that each driver complies with all legislative requirements and holds all appropriate qualifications, permits and licences. Under section 2 Offences of Schedule 7, the respondent must inform the Western Australian Public Transport Authority (PTA) immediately after it becomes aware of any driver ceasing to hold any government authorisation in respect of a licence. Ms Gough stated that the PTA was notified of the circumstances surrounding Mr Nieuwpoort’s driving on an expired driver’s licence.

[55] In cross examination Ms Gough stated that the role of Ms Sopolinski, the depot administrative officer, did not involve the making of any changes or decisions relating to the respondent’s day to day operations, including arranging for replacement drivers. The role involved basic administrative tasks.

[56] The respondent stated it has in place a process where 4 times a year the records of employees’ driver’s licences are checked to ensure they are current. If the employer’s records indicate they are about to expire, drivers are reminded by way of a note in their pigeon hole to check their licence.

Relevant Legislation

[57] In considering whether the dismissal was harsh, unjust or unreasonable, the Commission must take into account the provisions under s.387 of the FW Act which state:

“(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.”

[58] I now turn to consider these provisions.

Consideration under s.387

a) Whether there was a valid reason related to capacity or conduct for the dismissal

[59] It is well established that a valid reason is one which is sound, defensible or well-founded, but not capricious, fanciful, spiteful or prejudiced.¹⁶

[60] In considering whether a reason for dismissal 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, common sense way to ensure that the employer and employee are each treated fairly ...”  17

[61] In Parmalat Food Products Pty Ltd v Wililo 18, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[62] There is no issue between the parties that the applicant drove a bus on an expired driver’s licence.

[63] Mr Ferguson, on behalf of the applicant, and the applicant in his evidence submitted that despite the applicant’s driver’s licence having an expiry date of 10 April 2017, the applicant had in effect a grace period of 6 months in which he could continue to drive without committing an offence under the Road Traffic Act 1974 (WA) (Road Traffic Act). As such, his dismissal for driving without a valid driver’s licence after 10 April 2017 did not constitute grounds for establishing a valid reason as his licence to drive remained valid at the relevant time.

[64] The respondent does not accept the proposition as put by the applicant and as such, this issue needs to be dealt with in determining whether there existed a valid reason for the dismissal.

Whether the applicant had a valid licence to drive?

[65] It was submitted on the applicant’s behalf that s.49 of the Road Traffic Act - Driving while unlicensed or disqualified provides an exemption to the offence of driving while not authorised at s.49(3)(ca)(ii) “because the licence expired”.

[66] It was further submitted that under the Road Traffic (Authorisation to Drive) Regulations 2014 (Road Traffic Regulations) at Part 3A Loss of Authorisation to Drive, the only prescribed offences that disqualify a person from driving are drunk driving and fine suspension. It was put that driving on an expired licence is simply an infringement for failing to pay the renewal on time.¹⁹ It was also put that though the licence was not renewed by the due date, this was “simply an administrative delay in revenue collection to the Western Australian government when a driver’s licence has passed its payment date for renewal”.²⁰

[67] The applicant contended that the respondent’s decision to terminate his employment was based on “ignorance of the West Australian Road Traffic Act and Regulations.” 21

[68] This argument can be addressed by a sequential and logical reading of the Road Traffic Act and Road Traffic Regulations.

[69] Section 49(1) of the Road Traffic Act states:

“A person who –

(a) drives a motor vehicle on a road while not authorised under the Road Traffic (Authorisation to Drive) Act 2008 Part 2 to do so; or
(b) employs or permits another person to drive a motor vehicle as described in paragraph (a).

commits an offence.”

[70] At s.49(3) it states that if an offence under subsection1(a) is committed by a person –

“

(a) ..

(ca) who has held an Australian driver licence of a kind required but ceased to hold the licence of that kind most recently held other than-

(i)…

(ii) because the licence expired; or

…

a police officer may, without a warrant, arrest the person.“

(My underline)

[71] This subsection does not, as the applicant submitted, provide an exemption from the offence of driving a motor vehicle without authorisation, rather it confirms that driving on an expired licence is an offence under 1(a) by stating that if an offence under 1(a) is committed by driving on an expired licence, a police officer is prohibited from arresting a person without a warrant for this offence.

[72] Section 49(1) of the Road Traffic Act refers to driving a motor vehicle on a road while not authorised under the Road Traffic (Authorisation to Drive) Act 2008 Part 2.

[73] Section 4 of this Act, which is contained in Part 2, provides for the making of regulations that relate to the granting of licences to drive motor vehicles on roads including fixing the period for which a driver’s licence remains in force.²²

[74] Regulation 24(2) of the Road Traffic Regulations provides that a driver’s licence may be granted by way of renewal.

[75] Regulation 37(2) states that the period for which the CEO grants a driver’s licence must be fixed in the licence which must be one or 5 years, at the drivers choosing.

[76] Regulation 37(7) states that a driver’s licence is current until the end of the period for which it is granted.

[77] Regulation 37(8) states that a driver’s licence must show as the expiry day of the licence, the last day of the period for which the driver’s licence is current.

[78] Regulation 38 states that the ‘expiry day’ means the last day of the period for which the driver’s licence is current.

[79] Regulation 39 provides that if within the period of 6 months after a driver’s licence expires, a person can apply for a driver’s licence substantially to the same effect as the driver’s licence that expired.

[80] Neither the Road Traffic (Authorisation to Drive) Act 2008 or the Road Traffic (Authorisation to Drive) Regulations 2014 provide a grace period allowing a driver’s licence to remain current after the stated expiry date.

[81] The 6 month (grace) period referred to by the applicant is a period referred to in Regulation 39 in which a driver’s licence can be granted by renewal after its expiry date. Where this occurs, the fee and the expiry date are the same had the driver’s licence been renewed prior to its expiry date, however the commencement period of the licence is when the licence is granted, not the previous expiry date.²³

[82] In respect of the loss of authorisation to drive for prescribed offences, this is a prohibition on a person renewing their driver’s licence where it has been cancelled or suspended.

[83] The applicant’s driver’s licence expired on 10 April 2017; it was no longer current until further renewed within a 6 month period with effect from the date of renewal. Driving a motor vehicle without a current driver’s licence is an offence.

[84] On the basis of the above reasoning, the applicant’s submission that at all relevant times he was in possession of a valid licence cannot be accepted.

[85] The respondent relied on the definition of serious misconduct justifying summary termination contained in the Fair Work Regulations as a basis for establishing the existence of a valid reason. 24 Serious misconduct is not the statutory test for establishing a valid reason, the FW regulations do not relate to the unfair dismissal provisions of the FW Act.

[86] The Full Bench in Owen Sharp v BCS Infrastructure Support Pty Limited 25 stated as follows:

“[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[87] The Drivers, Aides and Wardens Handbook and Code of Conduct together with the applicant’s employment letter of 27 July 2016²⁶ make the holding an in term driver’s licence a condition of employment and the employee’s responsibility. I further accept, as the respondent contends, that the requirement to hold a current driver’s licence should be well known and a matter of common sense to all motorists.

[88] It is also accepted that the respondent has a contractual obligation to the PTA to ensure its drivers hold a drivers licence with the appropriate classes at all times.

[89] Driving on an expired drivers’ licence is an offence under the Road Traffic Act; there are no exemptions, there is no grace period. The applicant’s conduct on 1 May 2017, of driving on an expired driver’s licence provided a valid reason for his dismissal.

[90] Whilst I am satisfied that the applicant’s conduct provided a valid reason for his dismissal, consideration of whether the termination of employment was unfair or otherwise requires consideration of the entirety of s.387 of the FW Act. As stated in Container Terminals Australia Limited v Toby 27 at paragraph 15:

“In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable.”

b) Whether the person was notified of that reason

[91] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made. In Crozier v Palazzo Corporation Pty Ltd  28a Full Bench of the Australian Industrial Relations Commission, dealing with similar provision of the Workplace Relations Act 1996, stated:

“[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 is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was 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.”

[92] In this matter the applicant was requested on Tuesday 2 May 2017, to attend a disciplinary meeting on Wednesday 3 May 2017. At the meeting he was asked to provide an explanation as to why he drove a bus on an expired driver’s licence. Following his explanation Mr Nieuwpoort was made aware of the reasons for his dismissal. This was confirmed in writing the following day. Mr Nieuwpoort was under no misapprehension as to the reason for his dismissal.

c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct

[93] As stated above, Mr Nieuwpoort was provided with the opportunity to respond to what was said to be a breach of the employer’s Code of Conduct; he provided a response which ultimately was not deemed satisfactory by the respondent.

d) Any unreasonable refusal to allow the person to have a support person present to assist at any discussions relating to dismissal

[94] This was not raised as being an issue in the proceedings.

e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[95] There was no issue with Mr Nieuwpoort’s performance; the dismissal related to a conduct issue which occurred on Monday 1 May 2017, involving driving the employer’s bus having been put on notice that he did not have evidence that he had a current driver’s licence.

f) and g) The size of the enterprise and human resource management capacity

[96] The respondent’s size and human resource management capacity are not issues that should have impacted on the employer, preventing it from following the appropriate procedures in dismissing the applicant.

h) Any other relevant matters

[97] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 29 took the approach that reaching an overall determination of whether a dismissal was “harsh, unjust or unreasonable”, notwithstanding the existence of a “valid reason”, involves a weighing process. At paragraph [58] and [59] the majority state that the weighing process involves:

“(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

[98] There are other factors in this case, further to the driving of a bus by the applicant without a current driver’s licence, which weigh in favour of the dismissal producing no unfairness to the applicant. The applicant was required under his employment contract and employer policies to maintain a current driver’s licence, which he failed to do. When this was brought to his attention on 1 May 2017, he misled his employer by stating that his driver’s licence had only expired ‘the day before last’ when it in fact had expired on 10 April 2017.

[99] The applicant maintained in his evidence that despite the expiry of his driver’s licence, he was still able to legally drive a motor vehicle for a further 6 month period. This appears to be an argument of more recent invention as when initially questioned about his expired driver’s licence by the respondent’s representatives it was not raised as a defence. The evidence of Mr Nieuwpoort confirms that at least at the relevant time, Mr Nieuwpoort was not under the impression he was able to drive on an expired driver’s licence. 30

[100] Mr Nieuwpoort’s actions in renewing his driver’s licence the following day indicate he was not of the opinion that he had a 6 month grace period.

[101] Further, the response provided by Mr Nieuwpoort at the meeting of 3 May 2017 that he could have lied about the currency of his driver’s licence does him no credit.

[102] Mr Nieuwpoort’s explanation in evidence was that he was under the impression that Ms Sopolinski had given him the authority to drive on Monday 1 May 2017. I do not accept this as a legitimate view to hold; no such direction was expressly given and Mr Nieuwpoort should have known Ms Sopolinski had no authority to issue such a direction.

[103] Despite the finding that a valid reason for the dismissal existed, there are a number of factors that lead the Commission into concluding that the summary nature of the dismissal based on the allegation of serious misconduct was unfair as opposed to a dismissal with notice. These factors are discussed below and include having regard to the alleged wilfulness of the conduct, the applicant’s employment record, length of service, age and future employment prospects.

[104] In McDonald v Parnell Laboratories (Aust)³¹ Buchanan J stated:

“a single foolish (dishonest) act”

did not amount, (in that case), to misconduct serious enough to justify termination at common law.³²

[105] In respect to driving without a current driver’s licence, it was not until Monday, 1 May 2017 when the currency of the applicant’s driver’s licence was bought to his attention, that it could be argued that there was any intention or wilfulness to drive on an expired driver’s licence.

[106] I accept that prior to 1 May 2017, the renewal of the applicant’s driver’s licence had been an oversight on behalf of the applicant, irrespective of the importance of holding a current driver’s licence to perform his duties as a bus driver.

[107] Mr Nieuwpoort’s response as to why he drove on Monday was put in the following terms by him:

“PN306 But you still continued to drive on 1 May without - or with an expired licence, didn't you?---

On 1 May in the pm run when I was asked to show my licence that Amanda, she walked past me, she'd been to the photocopier, and she walked past me, and I'm looking at my licence, my head is spinning like crazy, and she said, "Just go and fix it up as fast as possible", and – because I just seconds before that said, "Look, possibly my wife's gotten the new licence at home". You know how they send it in the mail, the little plastic thing. Send it in the mail. It's a – there was a huge possibility. I'm just sort of thinking, "Laura's possibly got it at home. I must find out", and then Amanda sort of said, "Go and fix it up as fast as you can", so I did.”

[108] It is clear that Mr Nieuwpoort should have clarified beyond doubt that his driver’s licence was current. His evidence was that he assumed that, if his wife established that his driver’s licence had not been renewed, it could be renewed electronically in seconds. 33 This turned out not to be possible as a photograph was required.

[109] The decision to drive was a spur of the moment decision made when the applicant’s head was, in his words, “spinning like crazy”. While a grave error of judgment, it was not action taken designed to destroy the employment relationship in a wilful manner. It could be described, at worst, as a negligent disregard to the importance of ensuring that he held a current driver’s licence at all times.

[110] Both the respondent’s witnesses stated that their decision to summarily terminate Mr Nieuwpoort was influenced by his lack of remorse. 34 However in evidence Ms Currie-Gamon stated that the applicant apologised over the phone on Monday 1 May 2017, as the transcript reveals:

“PN1262 Was he apologetic in his nature?---Yes.

PN1263 So he did apologise?---Yes.

PN1264 So he said, "Denise, I apologise, my licence has expired. I've got to go and fix this up. I'm going to do it tomorrow morning". So he was apologetic in his tone to you.

Yes.”

[111] This factor did not appear to have been taken into consideration or given significant weight by the respondent when they met with him on 3 May 2017. Although at the hearing Mr Nieuwpoort made no genuine attempt to apologise for his conduct, this appears to be based on his submission that he had not committed any misconduct, serious or otherwise, as he at all times held a valid driver’s licence.

[112] As noted above in the Full Bench decision of Owen Sharp v BCS Infrastructure Support Pty Limited, the definition of serious misconduct as found in the FW Act regulations for the purposes of establishing a valid reason is obscure. In that decision the Full Bench went on to state:

“[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd 35 Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice”36 and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship.37 “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. …. ”

[113] In Sent v Primelife Corporation Ltd 38, Mandie J said at [17]:

“…Serious misconduct [sufficient to justify summary dismissal]… has been held to include conduct, in relation to important matters, that constitutes a repudiation of or is incompatible with or repugnant to the essential obligations of an employee or is destructive of the relationship of good faith and confidence between employer and employee .”

[114] In Concut Pty Ltd v Worrell 39, Kirby J said:

“It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment… but these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.” (Citations omitted)

[115] It is accepted by the respondent that Mr Nieuwpoort had an unblemished employment record during his nearly 7 years’ service. Mr Nieuwpoort’s evidence was that despite his efforts to find alternative employment, in his view, due to his age, his prospects of obtaining future employment were slim. 40

[116] Following confirmation on the evening of 1 May 2017, after arriving home and speaking to his wife, that his licence had not been renewed, Mr Nieuwpoort contacted his employer that same evening and advised of his driver’s licence status. He renewed his driver’s licence the following day.

[117] The actions of Mr Nieuwpoort do not in my view justify the termination of his employment summarily; on this basis the dismissal is unfair.

[118] The respondent was entitled to dismiss the applicant based on his grave error of judgement and attempts to minimise the seriousness of his actions, as opposed to him taking responsibility for his conduct and accepting the importance of holding a current driver’s licence at all times. However his actions did not strike at the core of the employment relationship such that his statutory entitlement to notice or payment in lieu of notice as per the national employment standards should have been withheld.

[119] The respondent sought to rely on the Code of Conduct which refers to a zero tolerance to activities and behaviours that have the potential to cause catastrophic consequences to its operations, clients, staff and other members of the public. Not being ‘correctly licenced’ is provided (amongst others) as a ground for instant dismissal. Not being correctly licenced may in certain circumstances have potential catastrophic consequences, however in the circumstances of this case, the respondent failed to demonstrate what potential catastrophic consequences arose out of the applicant’s conduct.

[120] Section 390(3) of the FW Act allows the Commission to order the payment of compensation where satisfied that reinstatement is inappropriate and the payment of compensation is appropriate in all the circumstances.

[121] Having concluded that the dismissal was unfair based on its summary nature, I determine, having regard to the criteria set out in s.392 of the FW Act, that the appropriate remedy is an order for the payment of 5 weeks wages, being Mr Nieuwpoort’s entitlement based on his termination of employment with notice.

[122] A separate order will be issued giving effect to this decision.

DEPUTY PRESIDENT

Appearances:

Applicant: Mr Glen Ferguson on behalf of the applicant

Respondent: Mr Ian McDonald - Australian Public Transport Industrial Association on behalf of the respondent

Hearing details:

2017

Perth

22 August

1 Exhibit A1, Witness Statement of Ian Nieuwpoort

 2   The respondent or its previous entity

3 This is understood to be a reference to the fact that a driver’s licence does not state when the renewal payment was made and that if paid late still has the same expiry date had the licence been paid on time.

 4   See transcript at PN229 – PN237

 5   PN274

6 Exhibit A2, Applicant’s written submissions, at [9]

7 Ibid at [39]

8 F3 at 3.2(ii)

 9   Exhibit R4 Respondent’s submissions at [21] to [32]

10 Exhibit R3 Statement of Ms Currie-Gamon Attachment C at p.8

 11   Exhibit R3 Statement of Ms Currie-Gamon Attachment A

 12   PN1263

 13   PN1180-PN1198

14 Exhibit R1 Statement of Ms Gough at para [2]

 15   PN883, PN872

16 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

 17   Ibid

 18   [2011] FWAFB 1166

19 Applicant’s Form F2 at 3.2 paragraphs 14-17

20 Exhibit A2 Applicant Submissions at para [31]

 21   Ibid at para [39]

22 Section 4(5)(c)

23 Regulations 39(5) and (6)

 24   Exhibit R4, Respondent’s submissions at [9]

 25   [2015] FWCFB 1033

26 Exhibit R3, Statement of Currie-Gamon Attachment A

 27   Print S8434

 28   (2000) 98 IR 137

 29   [2013] FWCFB 6191

 30   PN283

31 [2007] FCA 1903;

32 See also APS Group (Placements) Pty Ltd v Stephen O’Loughlin [2011] FWAFB 5230 at paragraph [56];

 33   PN331

 34   Exhibit R3, Witness Statement of Ms Currie-Gamon at [13] and Exhibit R1,Witness Statement of Ms Gough at [9]

 35   (2001) 107 IR 117

 36   Ibid at 240

 37   Ibid at 250-257

 38   [2006] VSC 445

 39   [2000] HCA 64

 40   PN195

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