| [2020] FWC 3361 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ivance Cuculoski
v
Australian Transit Group T/A Buswest
(U2020/1777)
COMMISSIONER WILLIAMS |
PERTH, 30 JUNE 2020 |
Application for an unfair dismissal remedy.
[1] This decision concerns an application made by Mr Ivance Cuculoski (Mr Cuculoski or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 17 February 2020. The Respondent is Australian Transit Group T/A Buswest (Buswest or the Respondent).
[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so was referred for arbitration.
[3] At the hearing of this matter Mr Cuculoski gave evidence on her own behalf and did not call any other persons to give evidence. For the Respondent evidence was given by Ms Beverley Bairstow (Ms Bairstow), Chief Administration Officer for the Respondent, and Mr Murray Goosen (Mr Goosen), Chief Operating Officer for the Respondent.
[4] The Applicant was employed by the Respondent as a casual bus driver. He was first employed in December 2015.
[5] The Respondent has a bus service contract to operate shuttle services from the Perth CBD to the Crown Casino. This contract is regularly renegotiated or tendered out to the preferred contractor. The services operated by the Respondent are specialist service which require a higher degree of professionalism from their drivers due to the nature of the operation and the destination to the Perth Crown Casino.
[6] At the time of his dismissal, Mr Cuculoski was regularly driving the Crown Casino shuttle bus and had been for approximately four years.
[7] On Tuesday, 4 February 2020 at 3.28 p.m. Ms Bairstow, the Respondent’s Chief Administration Officer, received an email from the Crown Casino’s Gaming Machines Shift Manager which read as follows:
“Subject: unusual complaint
Hello Bev
I’m unsure if you can deal with this or not.
I have a patron who claims that on Friday 31st he caught the Shuttle Bus around 1600hrs and was asked by the driver (Macedonian or similar who he had seen before) to lend him some money.
Thinking he was doing someone a favour he handed over $90 and was told he would get it back the next day. Unfortunately this has not occurred as yet.
Allegedly the driver has spent time gambling in the Casino which seems to point me in the direction of an RSG issue.
We wouldn’t normally get involved in behaviour such as this but the lender would like his money back or it will escalate further.
Like I said a sticky one but I thought I’d start with you to see if you may at least know who the driver is.
I have the patron details to call him back with any info you may obtain.” 1
[8] Subsequently on 8 February 2020, the Crown Casino provided updated information to Ms Bairstow regarding the matter as follows.
“Originally I mentioned the Shuttle Driver was Macedonian, but he is not Macedonian he is of European decent.
I received a description of the Shuttle Driver from Mr Vasiljkovic today.
Patron: Mr Miodrag Vasiljkovic
Mob:…
Member #: …
Date: Saturday 1st February 2020
Time: 16:00
Driver Description
Bus: Crown Shuttle
Nationality: European
Height: Short,
Hair: Dark Short Hair
Eyes: Wears Glasses
Incident: Crown Shuttle Driver asked patron if he had an money, when he boarded the shuttle at 4pm.
The Shuttle Driver said he was short of cash. (The patron is an acquaintenance of the driver, as he is a frequent patron of Crown, but not a friend)
The Patron told the Shuttle Driver he had $105 cash on him and the driver asked if he could spare some cash.
The Patron told the Shuttle Driver it was his food shopping money. The driver said he would pay him back tomorrow (Sunday).
The Patron came to Crown on Sunday, caught the shuttle from the train station and there was a differant driver.
On Monday and Tuesday the patron again visited Crown by train and caught the shuttle, inorder to see the Shuttle Driver to recover his $90
Mr Vasiljkovic came to me at Casino Services to put in a complaint.” (sic) 2
[9] I note the advice from Crown Casino on 4 February 2020 was that the interaction between the patron and the bus driver occurred on Friday, 31 January 2020, however the later advice from the Crown Casino on 8 February 2020 says the interaction occurred on Saturday, 1 February 2020.
[10] As a consequence of the information provided by the Crown Casino, Ms Bairstow rang the patron on Monday, 10 February 2020 and he advised her he had been paid back by the bus driver that morning. 3
[11] A further email from the Crown Casino in the middle of that day advised that they viewed Mr Cuculoski’s behaviour as unacceptable and had reflected badly on the Crown Casino. 4
[12] Ms Bairstow arranged a meeting with Mr Cuculoski the same day after his work had finished to discuss the complaint from the Crown Casino that he had borrowed money from one of the Crown Casino’s patrons and had not paid the money back as promised.
[13] Mr Cuculoski did not deny that he borrowed money from the person who complained however, Ms Bairstow’s evidence was that during the meeting Mr Cuculoski became aggressive towards her and was shouting that he had done nothing wrong. She says at the end of the meeting he stormed out without providing a proper explanation of the events that led up to the complaints.
[14] Her evidence was that she advised Mr Cuculoski his behaviour might have tarnished the Respondent’s reputation with the Crown Casino.
[15] Ms Bairstow’s agrees she told Mr Cuculoski that she would give him a warning letter but she says he refused to accept this, became abusive and then stormed out of the office. 5
[16] Ms Bairstow denies she at any time told Mr Cuculoski that he should contact the Crown Casino to sort the issue out. The employee disciplinary notice filled out the same day by Ms Bairstow 6 reflects her evidence above and does not include any suggestion that the Applicant should himself speak to the Respondent’s client, Crown Casino, about the issue.
[17] Later the same day Monday, 10 February 2020, Ms Bairstow was copied into an email from a Crown Casino staff member to another regarding the issue.
[18] The email explained that the Mr Cuculoski had just approached her that afternoon about him being unable to drive the shuttle bus in future and said that he had been told to “... sort it out with Crown”. She says Mr Cuculoski advised that both the patron involved and himself are from the same country and the borrowing of monies had been both ways and that they are friends and he wanted to continue with his job.
[19] In a response email the same afternoon Ms Bairstow advised the Crown Casino that Mr Cuculoski:
“…certainly was NOT told to sort it out with Crown.”
[20] Four days later on Friday, 14 February 2020, the Crown Casino again emailed Ms Bairstow advising that Mr Cuculoski had again come to the Crown Casino the day previously on 13 February 2020 and spoke to staff there about his employment and he had been told that Crown Casino was not his employer and he should take up any issues with Buswest management. 7
[21] Consequently Ms Bairstow the same day, again had to by email offer an apology to their client Crown Casino over the behaviour of Mr Cuculoski.
[22] Evidence was also given by Mr Murray Goosen the Respondent’s Chief Operating Officer.
[23] His evidence was that he met with Mr Cuculoski regarding the complaint received from Crown Casino on 12 February 2020. Contemporaneous notes were provided, that were taken at that meeting. 8
[24] Contrary to the evidence of Mr Cuculoski that he was not able to speak during this meeting those notes demonstrate a process of question-and-answer where his answers were recorded and also demonstrate the meeting was certainly not short.
[25] Mr Goosen says he discussed that borrowing monies from a regular shuttle bus patron and not paying it back as promised may be a breach of the Respondent’s Code of Conduct. That Code of Conduct includes requirements for employees to maintain high standards of conduct and high-quality customer service and requires employees to be aware of their conduct towards passengers and the public and how their behaviour may be interpreted.
[26] The evidence shows that Mr Goosen also raised the Applicant’s history of performance issues about speeding and verbal warnings.
[27] Mr Goosen’s conclusion was that the Applicant’s actions were serious misconduct. Firstly because he borrowed money from a person who is a patron of the Crown Casino and a regular passenger on the Respondent’s bus and he did not pay the monies back leading to a complaint being made by the patron to the Crown Casino and a subsequent request for an explanation from the Crown Casino to the Respondent. Secondly, the Applicant had approached the Crown Casino without the authority of the Respondent and sought to enlist the Crown Casino’s support to reverse the Respondent’s decision that he not continue driving the shuttle bus.
[28] Consequently, the Respondent’s decision was that Mr Cuculoski should be terminated. A detailed termination of employment letter dated 18 February 2020 was provided to Mr Cuculoski. 9
[29] The Applicant’s evidence as to what occurred was inconsistent, particularly with respect to what date he borrowed money from the patron. His outline of argument and his closing written submissions 10 state that he borrowed the money on Wednesday, 5 February 2020. Self-evidently given the first complaint from the Crown Casino was made the day before this, this cannot have been the date the money was borrowed.
[30] In terms of what actually occurred, regardless of what date it occurred on, his evidence was that he did not borrow the money from the patron whilst he was driving the bus but rather when he was inside the Crown Casino.
[31] Mr Cuculoski’s evidence was that he did not ask the patron for money nor did the patron give him money when he was driving the bus. But when he was in the Crown Casino he told the patron that he had no money and he was going home. He says the patron said words to the effect of “if you want, I can give some money to you”. Mr Cuculoski says he said words to the effect of “alright if you give me some money, I will give it back to you tomorrow”. 11
[32] For this reason, Mr Cuculoski has repeatedly said in his evidence the Respondent is wrong to say that he borrowed money from a patron while he was working.
[33] But the next day he could not find the patron and over the next few days he was either not working or the patron did not go back to the Crown Casino. 12
[34] He says he did not have the patron’s phone number or address. 13
[35] Mr Cuculoski says he gave the money back to the patron before 9.00 a.m. on the same day he first met with Ms Bairstow about the Crown Casino complaint 14 which was Monday, 10 February 2020. This was a day he was working. He says he had just been parking and people were coming inside the bus and he went outside of the bus and gave the patron his money and waited for the people to come into the bus.15
[36] The Applicant’s evidence was that he approached the Crown Casino manager to deal with this matter because during his meeting with Ms Bairstow she instructed him to sort out the problem with the Crown Casino manager if he wanted to continue driving the bus.
[37] I did not find Mr Cuculoski’s evidence on this persuasive and prefer the evidence of Ms Bairstow that she did not tell him to go to the Crown Casino about this matter.
[38] Mr Cuculoski denies he was ever given any warnings for his driving or for speeding.
[39] Under cross-examination Mr Cuculoski says he understands as the bus driver of the shuttle to the Crown Casino he had an obligation to uphold the Respondent’s reputation and status.
[40] He concedes borrowing money from one of his passengers when he was driving would be completely wrong. 16
[41] His evidence was that he did not do anything wrong because it was not on the bus. 17
[42] As to his driving record I accept the Respondent’s record 18 shows in summary that Mr Cuculoski had three complaints about his speeding in 2015 including on 27 November 2015 when during a discussion about him being observed speeding he became agitated and extremely abusive and left the office. In 2016 his record shows two more instances of having been observed speeding and more recently on 12 September 2018, he was advised to be mindful of his speed while doing the Crown Casino shuttle and on 23 April 2019 he was advised to slow down while doing the Crown Casino shuttle especially over speed humps.
[43] The Applicant submits his termination was unfair because the information provided by the Respondent was not correct.
[44] He did not borrow money from the patron in his capacity as a bus driver or in any way associated with him being a bus driver.
[45] The patron was a friend of his from the Crown Casino and they sometimes watch sports together at the venue.
[46] He did borrow money from the patron he says on 5 February 2020, inside the Crown Casino.
[47] He says this was not a day that he was working and he had gone there for leisure purposes.
[48] The Applicant says he did not ask for the money, but he was offered it.
[49] He says he told the patron he would return the money the next day, but this did not occur because he could not find him and did not have his contact number.
[50] He submits that during the meetings with Mr Goosen he was not allowed to speak just to listen. He says he was cut off and was not allowed to finish speaking and was told his employment was terminated.
[51] The Applicant submits after he contacted the Crown Casino he was told that the fact that he borrowed the money did not affect Crown Casino in any way.
[52] He believes he was not terminated as a result of borrowing the money but because of previous hatred towards him for previously complaining over an unfair termination in which he was reinstated. He says he has been a model employee for Buswest with over seven years service and has not received any previous complaints.
[53] The Respondent notes the disagreement about the date the event occurred, but submits the evidence does show that monies were borrowed by the Applicant during his shift on 31 January 2020, and regardless the evidence is clear that the only reason Mr Cuculoski was acquainted with the patron was because he was a passenger on the shuttle bus.
[54] The evidence of the Applicant, the Respondent submits, is not credible as there are many inconsistencies including the days he acknowledged that he had worked. The days he had acknowledged, which omitted 4 February 2020, being the date that the Crown Casino contacted the Respondent about the failure by the Applicant to repay the loan. This was a day before the Applicant claims the borrowing took place.
[55] The date of the borrowing itself i.e. 5 February 2020 as opposed to 31 January 2020, is not supported by the evidence.
[56] The Applicant’s relationship with the patron, it is submitted, was not a close association other than as a passenger on his bus.
[57] The Applicant’s explanation for the impromptu meetings with senior management from the Crown Casino is inconsistent with the Respondent’s evidence.
[58] After the Applicant had been advised on 10 February 2020, about the Respondent’s concerns he contacted the Crown Casino management that day and again on 13 February 2020.
[59] Whilst the Applicant alleges he was treated unfairly during the meetings the Respondent’s evidence is he stormed out after verbally abusing Ms Bairstow in the first meeting.
[60] The evidence shows Mr Cuculoski has been the subject of a number of disciplinary issues over previous years including cautions and warnings for speeding.
[61] Section 387 of the Act prescribes the matters the Commission must take into account when determining whether an employee has been unfairly dismissed. This is set out below.
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the 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 the FWC considers relevant.”
[62] The trigger for Mr Cuculoski’s termination was conduct that happened when he was not working.
[63] That conduct was firstly borrowing money from a person at the Crown Casino and not paying this back as agreed and secondly on two occasions raising the fact that his employment was in jeopardy with staff of the Crown Casino.
[64] I accept Mr Cuculoski’s evidence that when he borrowed the money from the patron of the Crown Casino who he knew as a passenger who used his bus, he was not on the bus. Rather when he borrowed the money, he was with the patron on the Crown Casino gaming floor.
[65] I also accept that when he approached the staff at the Crown Casino on two separate occasions he was not working.
[66] A Full Bench of the Commission in the case of Anthony Farquharson v Qantas Airways Limited 19 considered the question of whether out of hours conduct by an employee involves breaches of terms of the contract of employment, as follows:
“[18] In Rose v Telstra Ross VP undertook a detailed analysis of the law relating to termination of employment for “out of hours” conduct. Referring to the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines, his Honour noted that the emergence of the modern law of employment can be seen as a movement away the status of servants in a master/servant relationship to a focus on contract with the result that:
“[a]n employee's behaviour outside of working hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment.”
[19] The issue, then, is whether the “out of hours” conduct involves a breach of an express or implied term of the contract of employment. Ross VP then considered the relevant implied terms:
An employee’s implied duty of fidelity and good faith is particularly relevant here. One of the most concise and authoritative statements of what is generally encompassed by the duty of fidelity and good faith is to be found in Blyth Chemicals v Bushnells. In that case their Honours Dixon and McTiernan JJ said:
“Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty. Or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises.”
In the same case their Honours Starke and Evatt JJ note:
“The mere apprehension that an employee will act in a manner incompatible with the due and faithful performance of his duty affords no ground for dismissing him; he must be guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer.”
...
The obligations imposed by the common law duty of fidelity and good faith operate to prohibit acts outside of the employment which are inconsistent with the continuation of the employment relationship. But as Spender AJ observed in Cementaid (NSW) Pty Ltd v Chambers, ‘an actual repugnance between the employee's acts and his relationship with his employer must be found’.
More recently the implied term of fidelity and good faith has been expressed as an obligation to serve the employer loyally and not to act contrary to the employer's interest. In England this obligation appears to have been subsumed by the more general obligation of mutual trust and confidence. The implied term of mutual trust and confidence imposes reciprocal duties on the employee and employer that they shall not ‘without reasonable and proper cause, conduct themselves in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’.
If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee then a breach of the implied obligation may arise.
There is some support for the proposition that the existence of an implied term of trust and confidence in contracts of employment has been accepted in Australia.
The words `trust and confidence' in this context are used in a contractual sense rather than as an ingredient of a personal relationship. As McCarry notes:
“... the words `trust and confidence', just like the employee's reciprocal duties of ‘fidelity and good faith’, do not now refer to the ingredients of a personal relationship, even if they once did. The words now represent, in shorthand form, a bundle of legal rights which have more to do with modes of behaviour which allow work to proceed in a commercially and legally correct manner than with ingredients in an interpersonal relationship.”
The above statement is consistent with the shift in the nature of the employment relationship, from status to contract, referred to earlier.
[20] His Honour then formulated a summary of principle which has now been applied on a number of occasions:
“It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:
• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
• the conduct damages the employer's interests; or
• the conduct is incompatible with the employee’s duty as an employee.
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.” (References omitted)
[67] The relevant context for his conduct was that Mr Cuculoski’s employer, Buswest, had a contract with the Crown Casino to operate a shuttle bus service for patrons of the Crown Casino. Mr Cuculoski was the shuttle bus driver and had been for a number of years.
[68] Mr Cuculoski borrowed money from a person who was a patron of the Crown Casino who knew Mr Cuculoski as the driver of the shuttle bus. The patron could be said to in effect have been a customer of Mr Cuculoski. Unfortunately, Mr Cuculoski did not pay the money back within the time agreed and consequently the Crown Casino patron complained to the Crown Casino. His complaint identified the borrower as the driver of the shuttle bus. As a result, the Crown Casino complained to Mr Cuculoski’s employer.
[69] By borrowing money from someone who was a passenger on his bus whilst at the premises of his employer’s client, Mr Cuculoski damaged the relationship between his employer and its client the Crown Casino.
[70] Then, following disciplinary meetings with his employer Mr Cuculoski of his own volition approached Crown Casino staff about the fact his employment was in jeopardy. This caused his employer’s client, the Crown Casino, to make further complaints to his employer about his conduct.
[71] It is clear then that Mr Cuculoski’s conduct damaged the interests of his employer. It damaged the relationship between his employer and its’ client the Crown Casino. In an attempt to repair that damage Mr Cuculoski’s employer was forced to repeatedly apologise to its’ client for his conduct.
[72] I am satisfied that borrowing money from a person whom Mr Cuculoski knew to be a passenger who regularly used his bus whilst at the Crown Casino and then not paying this money back when agreed was a valid reason for his dismissal.
[73] Separately, I am also satisfied that raising the fact that his employment was in jeopardy with staff of the Crown Casino was a valid reason for his dismissal.
[74] During the meeting with Mr Goosen he was advised that the matter of borrowing money from a shuttle bus patron at the Crown Casino was serious and together with his previous record of speeding may lead to dismissal.
[75] I am satisfied as recorded in the notes of the meeting with Mr Goosen that Mr Cuculoski was given an opportunity to respond to the reasons for his dismissal and he took that opportunity to do so.
[76] There was no refusal to allow a support person during the discussions about his dismissal.
[77] The reasons for the dismissal was Mr Cuculoski’s conduct as explained above, borrowing money and seeking support from Crown Casino staff to protect his job. Whilst he had in a past been provided with verbal warnings for driving performance matters these were not the central reason for his dismissal.
[78] The employer is a large business. There is no evidence as to whether there are or not dedicated Human Resource management specialists or expertise in the enterprise. Regardless the procedures followed in effecting the dismissal were reasonable in the circumstances.
[79] It is relevant that the Applicant’s behaviour towards Ms Bairstow towards the end of their meeting on 10 February 2020 was abusive and disrespectful. Whilst the Respondent did not rely on this behaviour as a reason for dismissal it was entirely unacceptable behaviour itself which potentially would have separately been another reason for his dismissal.
[80] Mr Cuculoski has never at any time accepted he has done anything wrong. He is unfortunately blind to the fact that his conduct has damaged the relationship between his employer and their client, the Crown Casino.
[81] Also relevant is the fact that the Applicant does not have an unblemished record. There are multiple occasions where he has been verbally counselled for speeding and other poor driving behaviour.
[82] The Applicant had been employed for under five years at the time of his dismissal.
[83] Whilst Mr Cuculoski remains of the view that because he was not working when he borrowed the money this should not affect his employment. However as explained above his actions have damaged his employer’s interests and damaged the relationship between his employer and their client. The relationship was furthered damaged by him approaching Crown Casino staff and raising the issue of his job with them.
[84] Considering all of the matters above Mr Cuculoski’s dismissal was not harsh, nor was it unjust nor was it unreasonable. Mr Cuculoski was not unfairly dismissed.
[85] Consequently, an order [PR720523] will now be issued dismissing this application.
Appearances:
Mr I Cuculoski on his own behalf.
Mr I. MacDonald of Australian Public Transport Industrial Association for the Respondent.
Hearing details:
2020
Perth (Telephone)
May 18.
Final written submissions:
Applicant, 25 May 2020.
Respondent, 25 May 2020.
Printed by authority of the Commonwealth Government Printer
<PR720522>
1 Exhibit R1.
2 Ibid.
3 Ibid.
4 Ibid.
5 Transcript at PN258 and PN263.
6 Witness Statement of Ms Bairstow, Attachment J, FWC Court Book at page 87.
7 Exhibit R1.
8 Witness statement of Mr Goosen, Attachment D, FWC Court Book at pages 77 to 80.
9 Ibid., Attachment E, FWC Court Book at pages 81 and 82.
10 Applicant’s closing written submission, 25 May 2020.
11 Transcript at PN71.
12 Ibid.
13 Ibid., PN105.
14 Ibid., PN106.
15 Ibid., PN107.
16 Ibid., PN175.
17 Ibid., PN176 to PN177.
18 Witness statement of Mr Goosen, Attachment C, FWC Court book at pages 75 and 76.