By Sooraj Sidhu and Lindsay Carroll, NRA Legal
A bus driver and former police officer has won reinstatement to their previous role after being dismissed by his employer on-the-spot for misconduct and unsatisfactory conduct towards the General Manager.
Commissioner Donna McKenna, who described the employee as an “impressive and credible witness”, noted that the circumstances of dismissal spoke to “the lack of relevant expertise” in the company, reinforcing the importance of seeking legal advice in such matters.
Background
On the morning of Wednesday, 6 December 2017, the employee bus driver left his seat to check on a commotion occurring outside of the bus.
As demonstrated by CCTV, a passenger boarded the bus clearly agitated and argumentative over having to run. The passenger attempted to move further into the bus, but was blocked by the bus driver and briefly shoved.
In retaliation, the passenger subjected the bus driver to a verbal tirade, waved her finger in his personal space and spat directly onto his face. At that point, the bus driver forcibly ejected the woman from the bus by pushing her out of the door and onto the pavement. The employee bus driver then resumed his duties as instructed.
Subsequently, on Friday, 8 December 2017, the bus driver was invited to a meeting with the Operations Manager and General Manager. During this meeting, the bus driver was asked to explain his “assault” of the passenger as well as numerous breaches of protocol such as getting out of the driver’s seat.
In the employer’s view, it was the driver who instigated the matter by leaving the bus and physically pushing the woman. The driver disagreed and raised a previous incident where the General Manager was involved in removing two boys from a bus for the sake of comparison.
In doing so, the General Manager became “mortified, defensive and emotional” and immediately dismissed the bus driver. According to CCTV, the bus driver was followed and escorted throughout the premises to the carpark but at all times remained passive and calm.
The dismissal for “serious misconduct” was later confirmed in a letter dated Monday, 11 December 2017. It outlined that his actions in relation to the passenger at most merited a formal warning. However, it cited his excessive yelling and inappropriate accusations towards the General Manager as grounds justifying immediate dismissal.
Decision
When analysing the facts of this case, Commissioner McKenna commented that “the language used by the woman [passenger] is of a type that no employee should be expected to have to put up with in the course of employment from a customer”.
Further, the Commissioner considered a police report in evidence that described the bus driver as the “victim” and their actions as “justified”.
Ultimately, the Commissioner preferred the driver’s recollection of events, relying on CCTV footage to dispute the employer’s claims that the employee was abusive and a threat to their safety. If anything, the CCTV footage demonstrated that the General Manager was the one in a “state of annoyance” as she followed the employee throughout the premises.
On that basis, Commissioner McKenna was not satisfied that there was a valid reason for dismissal and that the decision to terminate was made in the heat of the moment.
Additional considerations in favour of the employee’s unfair dismissal case included the lack of an opportunity to respond to his conduct during the meeting, the failure to offer a support person, the size of the employer and lack of any dedicated human resource expertise and overall procedural unfairness.
An order for reinstatement was deemed appropriate having regard for the role’s low level of interaction with the managers, as well as a lack of evidence to suggest that the employee would not perform their duties properly and competently. The employer’s fears of violence and aggression were not accepted.
The matter has been relisted to consider lost wages and a suitable return to work arrangement.
Further information
Employers must exercise caution when dealing with breaches of policy and the conduct of staff. In particular, employers who apply company policies strictly and without regard for the context or reasonableness of the employee’s conduct may be at risk of an unfair dismissal, adverse action or worker’s compensation claim.
To find out more information and speak to one of our workplace advisors, call the NRA today on 1800 RETAIL (738 245).
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