| [2018] FWC 6501 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Anderson
v
Melbin Holdings Pty Ltd
(U2018/7211)
COMMISSIONER WILLIAMS |
PERTH, 24 OCTOBER 2018 |
Termination of employment - jurisdiction - Small Business Fair Dismissal Code.
[1] This decision concerns an application made by Mr Peter Anderson (the Applicant or Mr Anderson) under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The Respondent is Melbin Holdings Pty Ltd (the Respondent).
[2] Mr Anderson was a school bus driver employed by the Respondent since March 2014.
[3] By letter dated 12 July 2018 Mr Anderson’s employment was terminated by the Respondent.
[4] The letter referred to a meeting held with Mr Quentin Melbin (Mr Melbin), the Respondent’s Managing Director, on 1 July 2018. The letter advised the decision had been made to terminate Mr Anderson’s employment effective immediately. The letter referred to a complaint received from the parent of a student travelling on the bus that Mr Anderson had engaged in bullying and intimidating behaviour towards a student. The letter stated his conduct was deemed to be wilful and deliberate and inconsistent with his obligations as a bus driver, caused a serious risk to the health and safety of a student and caused a serious and imminent risk to the reputation of the Respondent’s business.
[5] The letter concluded that his actions constitute serious misconduct warranting summary dismissal.
[6] The form F3−Employer’s Response to Unfair Dismissal Application filed by the Respondent objected to the application on the basis that the Respondent is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.
[7] Both parties were self-represented at the hearing.
[8] Mr Anderson gave evidence on his own behalf and called as witnesses Ms Vanessa Gall (Ms Gall) and Ms Gail Dean (Ms Dean).
[9] Mr Melbin gave evidence for the Respondent and called as witnesses Ms Sara Craddock (Ms Craddock) and Ms Nina Edmonds (Ms Edmonds).
[10] Having considered the evidence of the witnesses I make the following factual findings.
[11] Mr Anderson was employed by the Respondent from March 2014 and worked as a school bus driver until his employment was terminated on 1 July 2018.
[12] Mr Anderson’s employment was terminated by the Respondent’s by letter dated 1 July 2018 for what the Respondent viewed as serious misconduct warranting summary dismissal.
[13] The Respondent, immediately before Mr Anderson was dismissed, had three employees. 1
[14] Mr Melbin’s statement of evidence which I accept was that verbal and written complaints were received from parents regarding Mr Anderson’s driving of the bus and his behaviour towards students on the bus. Mr Anderson in the past was given verbal warnings regarding these complaints.
[15] The evidence is that on 13 March 2017 the Respondent received a complaint from Ms Wendy Harris (Ms Harris) a parent whose children used the school bus driven by Mr Anderson.
[16] The complaint stated several other parents had also expressed concerns.
[17] The complaint stated Mr Anderson was rude not only to the children but also the parents and Ms Harris herself had been abused in the car park at school, she had been shouted at and had Mr Anderson point his finger at her in a very angry way.
[18] Ms Harris in her complaint said she happened to be driving behind the bus and saw Mr Anderson go around the corner in a 50 km/h zone and it looked like the bus was going to roll onto its side.
[19] She referred to a number of other examples one of erratic driving and another of failing to see a car coming at an intersection and breaking suddenly. In the latter instance she said her son was flung forward and the seatbelt hurt his chest and another child next to him hit her head on the seat.
[20] The complaint said her son was scared of Mr Anderson and doesn’t want to catch the bus.
[21] Mr Melbin spoke to Mr Anderson about the complaint, firstly before going to see the parent who had complained and then after he had discussed it with them he spoke to Mr Anderson. 2
[22] Mr Anderson agrees that Mr Melbin spoke to him about speeding and his behaviour on the bus as a consequence of this complaint in 2017 and that Mr Melbin told him to, amongst other things, stop speeding or to slow down. 3
[23] In May 2018 there was also a complaint to Mr Melbin from a Ms Catherine McKenzie. Mr Anderson agrees Mr Melbin discussed this with him. Mr Anderson’s evidence was that that discussion concerned this parent’s children running in front of the bus at the bus stop and him consequently discussing with the children’s grandmother that she should park her car on the same side of the road as the bus stopped to prevent the children needing to cross the road potentially in front of the bus. 4
[24] Sometime in June 2018 the Respondent received a complaint about Mr Anderson from Ms Craddock. She initially sent a text message to Mr Melbin’s wife who then rang her back and Ms Craddock explained her complaint to Mrs Melbin. A few hours later Ms Craddock spoke to Mr Melbin about her complaints. 5
[25] Sometime later, on July 9 2018, Mr Melbin asked Ms Craddock to put her verbal complaint in writing. 6
[26] Ms Craddock’s written complaint was in the form of an email to the Respondent dated 15 July 2018. 7
[27] As Mr Anderson pointed out at the hearing he was dismissed three days prior to this email having been sent but I am satisfied on the evidence that Ms Craddock’s verbal complaint had been made to the Respondent well before Mr Anderson was dismissed and she had spoken to Mr Melbin about it well before he received her email. 8
[28] Ms Craddock’s emailed complaint in summary says that Mr Anderson asks her son questions in an unfair and unfriendly way and stares at him for a long and uncomfortable length of time through the rear-view mirror. When her son responds to his question Mr Anderson commonly shakes his head from side to side. In the mornings Mr Anderson does not acknowledge the parents or any of the children getting on the bus. Ms Craddock says she and other concerned parents had previously met with Mr Melbin in regards to Mr Anderson’s attitude and speeding. She says she has driven behind Mr Anderson’s bus and seen him speeding at as much as 120 km/h. She said Mr Anderson always starts to drive the bus away from the bus stop before the children are seated and they all fall into their seats.
[29] Under cross-examination Ms Craddock confirmed the details of her emailed complaint and was unshaken on these matters when challenged by Mr Anderson. 9 I accept Ms Craddock’s evidence.
[30] Mr Anderson’s evidence about this complaint by Ms Craddock was that he spoke to her on 21 June 2018 and she at that time told him her children won’t be catching the bus because her son felt Mr Anderson was intimidating him. She told him he asked her son too many questions and at 15 or 16 years of age these questions should not be asked of him. Mr Anderson says he told her he needed to know if her son’s siblings were travelling on the bus or not. He says Ms Craddock also said he stared at her son which Mr Anderson denied and he said he is constantly checking his rear-view mirror not just looking at her son. 10
[31] Mr Anderson says after this discussion on 21 June 2018 he immediately rang Mr Melbin by phone and Mr Melbin said he would sort it out when he returned on 28 June 2018. Mr Anderson said Mr Melbin’s response also was that “...he made it hard for him.” 11
[32] Mr Anderson says that Mr Melbin subsequently spoke to him about this complaint on 29 June 2018. 12
[33] Mr Melbin, having received multiple complaints from parents which raised a number of serious issues regarding Mr Anderson’s driving and his treatment of the children on the bus, initially sought to deal with the situation by changing Mr Anderson’s hours.
[34] On 1 July 2018 Mr Melbin arranged to meet with Mr Anderson. There was a discussion about Mr Anderson’s hours and Mr Melbin proposed that Mr Anderson’s hours be reduced from 20 hours per week to 8 hours per week and he only drive in the afternoons.
[35] Mr Anderson did not agree to this change. After this the parties communicated back and forwards by email with Mr Anderson indicating that he would not accept any change to the hours he had been working as agreed since 2014.
[36] Mr Anderson would neither accept there was an issue with his driving or his behaviour on the bus and would not agree to Mr Melbin’s proposal to change his hours to deal with these concerns and had said he would resume work doing his usual hours.
[37] Mr Melbin’s evidence was that in his view this left him with no option but to terminate Mr Anderson’s employment, which he did. 13
[38] In his oral evidence Mr Melbin explained the reason for the termination this way, 14
“The reason for termination was that Peter was - he wasn’t willing to change and to take on board that some parents had issues with him. The warnings were there and he needed to slow down and try and just be a little bit more rounded with children, not intimidating them so much. I'd like to put him in the afternoon run so the kids hopping on the bus weren't intimidated to go to school and that's why I had him on the run in the afternoons, so he was still getting income, he was still driving the buses and the kids were not getting stressed and the parents were not getting stressed trying to get the children on the buses.”
[39] Two other witnesses gave evidence for Mr Anderson.
[40] Ms Gall has known Mr Anderson for 10 years and was his neighbour. Her children catch the bus to school and Mr Anderson has been driving them for the last four years. She says he is always cheerful and has a good sense of humour.
[41] Ms Dean gave a character reference advising that she is employed at the Congaree District High School and believes Mr Anderson has done his job professionally and is respectful to both students and staff.
[42] Evidence was also given for the Respondent by Ms Edmonds. On 19 September 2018 she sent an email to the Respondent 15 that states she is relieved there is a new bus driver and is very pleased with her safety practices. Ms Edmonds states she drives at a safe speed and always waits for the children to sit down and put their seat belts on unlike Mr Anderson who she says she clocked doing up to 70 km/h in a 50 km/h zone on regular occasions. Ms Edmonds states that Mr Anderson at her bus stop never waited for the children to put their seat belts on and often drove off while they were still standing. She says on one occasion he called a young child a “unit” in front of the child and herself. She states her children never liked going on the bus but they are now happy and request to go on the bus and she feels her children are now safer.
[43] Under cross-examination by Mr Anderson Ms Edmonds confirmed her complaints about him and in particular was unshaken on the fact that she had seen Mr Anderson driving the bus at up to 70 km/h in a 50 km/h zone. 16
[44] A number of other written character references were provided in favour of Mr Anderson but the authors were not present in court.
[45] Section 23 of the Act defines “a small business employer” as an employer who, at the particular time, employed fewer than 15 employees.
[46] Section 385 of the Act sets out what the Commission must be satisfied about for a person to be found to have been unfairly dismissed. Section 385 of the Act is set out below.
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[47] The Small Business Fair Dismissal Code (the Code) is set out below.
“Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[48] As will be seen below the definition in the Fair Work Regulations 2009 of serious misconduct is also relevant and this is set out below.
“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.”
[49] The evidence is that immediately before Mr Anderson’s dismissal his employer had three employees. Consequently I find that at this time the Respondent was a small business employer.
[50] Relevantly then for Mr Anderson’s application one of the matters the Commission must initially consider is whether or not his dismissal was consistent with the Code.
[51] If Mr Anderson’s dismissal was consistent with the Code then because of section 385(c) of the Act he cannot have been unfairly dismissed. If Mr Anderson’s dismissal was consistent with the Code the Commission does not need to consider any other matters and the Commission must find that he was not unfairly dismissed.
[52] In the recent decision of TIOBE Pty Ltd T/A TIOBE v Cathy (Yaqin) Chen 17 a Full Bench of the Commission considered the operation of the Small Business Fair Dismissal Code, the Commission confirmed that,
“[24] It is necessary to first consider whether the dismissal was consistent with the Code before turning to deal with the issue of whether the dismissal was unfair.”
[53] The Full Bench continued on to consider how the summary dismissal section of the Code is to be applied by the Commission,
“[30] The first issue that fell for determination in the subsequent appeal was whether Mr Ryman’s dismissal was of a type to which the ‘Summary Dismissal’ section of the Code applied. At the outset the Full Bench observed that ‘this issue is not easy to resolve because the Code generally, and this section of the Code in particular, is very poorly drafted’. After detailed consideration of the legislative provisions and their context the Full Bench concluded that the ‘Summary Dismissal’ section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in regulation 1.07. The Full Bench then concluded:
‘To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:
“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”
Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.
In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.
In this case, Mr Ryman’s dismissal occurred with immediate effect - that is, without the provision of any actual notice - on the ground of serious misconduct. The fact that he was paid an amount said to be in lieu of notice, or that the dismissal occurred some days after the conduct to which it related, does not alter the position in this respect. His dismissal therefore fell to be considered under the “Summary dismissal” section of the Code in accordance with the Pinawin principles. There was no error on the part of the Commissioner on this issue.’
[31] The decision in Ryman was applied in Gainbridge Limited v Mrs Diane Wiburd, in which the Full Bench said:
‘The proper inquiry raised by the Code is relevantly, whether at the time of the dismissal the employer genuinely believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The Code focusses attention on the employer’s belief which must be based on reasonable grounds, not on whether the employee’s conduct as a matter of fact and law justified immediate dismissal.’” (References omitted)
[54] In this case there is no doubt that the employer dismissed Mr Anderson without notice, with immediate effect, which is expressly stated in the Respondent’s letter of termination.
[55] The letter then refers to a complaint received from a parent which concerned Mr Anderson engaging in bullying and intimidating behaviour towards a student. It is now clear this was a reference to the complaint made to Mr Melbin in June 2018.
[56] The letter of termination also states that the Respondent deemed Mr Anderson’s behaviour to be,
• wilful and deliberate which is inconsistent with the obligations of a bus driver
• causes serious risk to the health and safety of a student
• caused a serious and imminent risk to the reputation of the employer’s business.
[57] Mr Melbin’s letter says the Respondent considers Mr Anderson’s actions constitute serious misconduct warranting summary dismissal.
[58] Mr Melbin dismissed Mr Anderson without notice on grounds that he committed serious misconduct and consequently it is necessary for the Commission to consider whether his dismissal was consistent with the “Summary Dismissal” section of the Code.
[59] The first matter when considering whether the dismissal was consistent with the Code is to determine whether the Respondent genuinely held a belief that Mr Anderson’s conduct was sufficiently serious to justify immediate dismissal and secondly to determine whether the Respondent’s belief was, objectively, based on reasonable grounds.
[60] In this instance the letter of termination signed by the Respondent’s Managing Director Mr Melbin demonstrates he genuinely believed Mr Anderson’s conduct, as detailed in the most recent complaint, was sufficiently serious to justify immediate dismissal. Mr Melbin’s evidence at hearing was consistent with him genuinely holding this belief.
[61] The fact that Mr Melbin had first proposed the more compassionate and preferred business solution of altering Mr Anderson’s hours is not mutually exclusive with him genuinely believing Mr Anderson’s conduct was sufficiently serious to justify immediate dismissal.
[62] The second question for the Commission is whether Mr Melbin’s belief was, objectively speaking, based on reasonable grounds.
[63] What the evidence discloses is that prior to June 2018 parents had complained to Mr Melbin about Mr Anderson’s behaviour towards their children and themselves. The complaints also involved how he drove the bus, moving away from bus stops before students were seated and at times exceeding the speed limit.
[64] The final complaint Mr Melbin received was in June 2018. This complaint from a parent raised similar concerns to those raised previously by other parents about how Mr Anderson had dealt with a student on the bus and how he drove the bus unsafely.
[65] Mr Anderson was aware of some of this parent’s concerns and later that a complaint had been made to Mr Melbin. Mr Melbin later spoke to Mr Anderson about this complaint. It is apparent Mr Anderson did not agree his behaviour or his driving was inappropriate or unsafe.
[66] There is no evidence Mr Anderson raised matters with Mr Melbin that objectively should have caused Mr Melbin to doubt the legitimacy of this final complaint particularly in circumstances where it echoed complaints made as long ago as 12 months earlier.
[67] Considered objectively, Mr Melbin’s belief that Mr Anderson had behaved as the parent stated in her complaint was based on reasonable grounds. Further his view that this behaviour was wilful and deliberate and inconsistent with Mr Anderson’s obligations as a bus driver caused a serious risk to the safety of a student and had caused a serious and imminent risk to the reputation of the Respondents business was in all the circumstances also reasonably held.
[68] Consequently Mr Melbin’s belief that Mr Anderson’s behaviour was sufficiently serious to justify immediate dismissal was based on reasonable grounds.
[69] In all the circumstances of this case I am therefore satisfied that the dismissal of Mr Anderson was consistent with the Small Business Fair Dismissal Code. Consequently as a result of section 385(c) of the Act Mr Anderson cannot have been unfairly dismissed.
[70] I uphold the objection of the Respondent. This application will therefore be dismissed and an Order [PR701624] to that effect will be issued in conjunction with this decision.
Appearances:
P Anderson on his own behalf.
Q Melbin on behalf of the Respondent.
Hearing details:
2018.
Geraldton:
October 2.
Printed by authority of the Commonwealth Government Printer
<PR701623>
1 See form F3-Employer’s Response to Unfair Dismissal Application and Transcript at PN196 to PN198.
2 Transcript at PN186.
3 Ibid., at PN105 to PN108.
4 Ibid., at PN109 to PN110 and Exhibit R3, Document R1 at paragraph 2.
5 Transcript at PN266.
6 Ibid., at PN266 to PN269 and Exhibit R3, Document R1.
7 Exhibit R3, Document R1.
8 Transcript at PN266 to PN270.
9 See for example Transcript at PN261 and PN265.
10 Exhibit A1, written response to the form F3 at paragraph 1.
11 Ibid.
12 Ibid.
13 Ibid., at PN206.
14 Transcript at PN199.
15 Exhibit R3, Document R6.
16 Transcript at PN290 to PN310.