Mrs Dell Humphries v Buslink Vivo Pty Ltd. (U2015/2674) [2015] FWC 4641. VICE PRESIDENT CATANZARITI, VP. 3 AUGUST 2015

The Applicant was employed by the respondent for 18 months, commencing as a bus driver and later promoted to a team leader.

On 19 December 2014 the Applicant was pulling into the fuel bay in a bus when she crossed into the pedestrian area, narrowly missing an employee, who jumped out of the way to avoid being hit. The Applicant was issued a first and final warning for a safety breach, and the Respondent arranged Hazard Identification training.

On 3 January 2015, in the course of carrying out her Marshalling duties, the Applicant missed a bus run departing the yard. The run was also missed by the Driver, Lead Driver and Duty Manager. It was detected that the run had been missed two hours after the bus was due to leave the yard when the Driver collected her shift board. On 6 January 2015 the Applicant was requested to attend an investigation meeting to explain what happened on 3 January 2015 and how it happened.

On 8 January 2015 a show cause letter was given to the Applicant regarding the incident on 3 January 2015 and this was followed by a show cause meeting that took place on 9 January 2015 and continued on 12 January 2015.

The Applicant continued working her rostered shifts whilst the investigations and meetings were being conducted.

On 12 January 2015, the Applicant worked her rostered am shift and asked to attend the continuation of the show cause meeting at 2pm.

The Respondent issued the Applicant with a termination letter dated 12 January 2015 that provided as follows:

“…it has been decided that your employment with Buslink VIVO will be terminated based on the following breaches of Buslink VIVO’s policies:

  • Safety breach – On 23 December 2014 your actions resulted in a serious safety breach. On this occasion you were issued a first and final written warning.
    ● Procedural breach
    – On 3 January 2015 you failed to follow procedure resulting in a service not being dispatched from Howard Spring’s Depot.

The FWC concluded that:

“I have some concerns with respect to the nexus drawn between the 19 December 2014 safety breach and the 3 January 2015 procedural breach such to enliven dismissal…Notwithstanding these concerns, I accept that the reason for the dismissal was due to the safety breach on 19 December 2014 and the procedural breach on 3 January 2015, both of which were acknowledge by the parties to be serious breaches of the Respondents policies. I find that there was a valid reason for the dismissal for the purposes of section 387(a) of the Act.”

“I note the oversight did not cause the Respondent any financial loss or substantial embarrassment and was not identified by way of a disgruntled customer or client complaint. Although the Respondent submitted that it could be held contractually liable for fines for missed services, the Respondent indicated that there were no fines levied in relation to the incident on 3 January 2015”.

In these circumstances, I consider that the dismissal of the Applicant was a disproportionate response and overly harsh.

“…the fact that it may be difficult or embarrassing for an employer to be required to reinstate an employee who was believed to be guilty of wrongdoing is not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately the question is whether there can be a sufficient level of trust and confidence to make the relationship ‘viable and productive’. In making this assessment, it is appropriate to consider the ‘rationality’ of any attitude taken by a party.”

“…I consider that it is appropriate to order that the Applicant be reinstated to her former employment with the Respondent [and] to maintain the continuity of the Applicant’s employment.”

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