[1] This decision will determine an unfair dismissal application lodged by Mr Siriwardana Dissanayake ('the applicant') pursuant to s 394 of the Fair Work Act 2009 ('the Act'). The applicant was dismissed from his employment as a bus driver at Busways Blacktown Pty Ltd ('Busways') ('the respondent') on 19 August 2010. The respondent employs 894 casual and permanent bus drivers. The applicant had commenced employment as a casual bus driver on 7 November 2005, and became a permanent employee on 13 February 2006. The applicant was dismissed for alleged misconduct following two incidents which occurred while he was driving his bus on 3 and 16 August 2010. The two incidents were identified in his letter of termination of 19 August 2010, which read as follows:

We refer to the meeting on the 19th August 2010 at Blacktown Depot involving, Mr. Bob Mason - Regional Operations Manager, Mr. Maurice Hogan - Operations Support Manager, Mr. Brad Cooper - Human Resources Manager and Mr. Kenneth Yearsley (Employee Representative).

The purpose of the meeting was to advise you of the outcomes of the workplace investigation by Busways into:

(i) allegations regarding aggressive and unsafe driving involving students who were injured on your bus on the 3rd August 2010;

(ii) allegation of inappropriate behaviour where you allegedly threatened a passenger on the 16th August 2010.

External parties provided the Company with witness statements to facilitate our investigations. During the meeting on the 19th August 2010 you refused to give the Company your version of how these incidents occurred.

We have concluded our workplace investigation into the above allegations and determined that:

(a) On both occasions your conduct amounts to wilful and deliberate behaviour that is unacceptable and inconsistent with the continuation of your employment relationship with Busways;

(b) Your conduct and repeated behaviour has threatened the health and safety of our passengers including the reputation of Busways.

Busways has decided to terminate your employment effective immediately on the basis that your actions and conduct during both incidents on 3rd August 2010 and 16th August 2010 amounts to gross misconduct.

[2] On 26 August 2010, the applicant filed an application for an unfair dismissal remedy and the matter was unable to be settled in a telephone conciliation on 20 September 2010.

[3] It would be an appropriate summation of the applicant's evidence and the submissions made on his behalf, that the applicant denied the two allegations against him. He also maintained that he had been denied procedural fairness in the disciplinary process leading to his dismissal.

[4] The matter came before Fair Work Australia (FWA) on 30 November 2010, following a request for an adjournment of the substantive proceedings (due to commence in the following week) on the grounds that the applicant had not been able to properly prepare his case without access to material sought under summons; most notably a DVD of the CCTV footage of the incidents. I note that the applicant had been shown the videos in two separate disciplinary meetings prior to his dismissal, but it was said that the DVD copies were illegible. The applicant and his solicitor sought access to the hard drive copy of the footage. After some argument, the adjournment request was refused and the video footage of the incidents was observed by the parties and the Tribunal on the first day of hearing (8 December 2010). Much of the respondent's witness evidence was also dealt with on that day. However, on the following day, after the evidence of a teacher (Ms Sharon O'Keefe) and the Assistant Principal of St Agnes Catholic High School ('the School') (Mr Patrick Finnerty), a request for an adjournment of the proceedings was sought by both parties in order to discuss a settlement of the matter. Upon resumption, I was advised that the matter had settled, in principle, and would be subject to a deed of release to be prepared and executed within seven days. However, shortly thereafter, the Tribunal was advised that the settlement had 'fallen through'. The matter was relisted for the taking of further evidence and final submissions.

Ms Sharon O'Keefe, Secondary Teacher at St Agnes Catholic School

Mr Patrick Finnerty, Assistant Principal at St Agnes Catholic School

Mr George Tisseverasinghe ('Mr Tisse'), Chief Executive Officer, Busways

[5] I intend to deal with the evidence, and my findings on the evidence, under the following headings:

[6] The following extracts from the respondent's Employee Manual are relevant to this case:

If you arrive at a timing point early, do not leave before the time shown on your shift board. At the station, you may arrive early, as long as you did not leave your last timing point early."

If you have difficulties on your shift such as consistent late running, overloading, or missing connections, fill in a Driver Occurrence Report (kept in the drivers' room).

Make sure the problem is clearly identified. Include any suggestions you may have. Hand it to your Manager or Controller for attention."

Treat everyone with respect and courtesy, without harassment;

Not operate or drive vehicles in a reckless or dangerous manner;"

-Be fair in your dealings with other employees and with the public;

-Do not harass other employees or customers on any grounds;"

-work in a manner which does not adversely affect the health and safety of others;"

If you deal directly with customers or members of the public, always be polite and helpful. Always show respect and consideration, particularly to those with special needs, the elderly and people with disabilities."

"HEALTH & SAFETY: ACCIDENT/INJURY PROCEDURES (p37 of manual)

-Immediately notify your Controller/Manager and/or a First Aid Officer;

-Remember - report all accidents/ incidents, no matter how minor. All work related accidents/incidents must be recorded."

Good housekeeping is essential to prevent accidents and incidents. You must keep your work area clean and tidy. Keep walkways, aisles, stairways and evacuation routes free of any obstruction."

Report all incidents/accidents which have or could have caused personal injury or property damage."

"GENERAL DRIVER INFO 2.1 THREATENING BEHAVIOUR (p67 of manual)

If you feel threatened by a customer in relation to a fare, allow the customer to travel free. Contact the depot as soon as possible for assistance or advice."

"CUSTOMER SERVICE 4.1 CUSTOMERS AND YOUR JOB (p73 of manual)

The safety of customers is your first priority. Your career as a driver depends upon providing all customers with courteous and reliable service.'

-Drive smoothly and safely - aim to stay on time, not late or early;

-Treat customers with respect - give them the benefit of the doubt, even if you feel they are not right. Put yourself in their place, understand their point of view. Always be helpful and polite."

-Avoid using force. Do not take action that will provoke or inflame an incident;

-For further assistance contact the depot by two-way radio;

-If the situation is serious enough, drive to the nearest police station and seek assistance."

"5 SCHOOL STUDENT TRANSPORT 5.1 MANAGING SCHOOL STUDENTS' BEHAVIOUR (p77 of manual)

Under the Ministry of Transport's "Guidelines for Managing School Students Behaviour on Buses" you are responsible for:

-driving in a safe manner and taking reasonable care for the safety of all passengers in accordance with the OH & S Act 2000;"

"5.3-5.7 CODE OF CONDUCT FOR SCHOOL STUDENTS (p78 of manual)"

Judge your driving by the reactions of your customers. If they hang on for grim death, or end up on the floor, you are probably going too fast or braking too hard."

Always brake gently and gradually in a straight line.

Allow for the load on your bus. A full load takes longer to stop, as well as more braking effort.

Busways follows the driver monitoring program as set out in the driver's award. The steps are:

a. A complaint is recorded on an Occurrence report.

b. The driver response to the complaint is obtained.

c. If the complaint is justified, a counselling session is conducted with the driver and the Operations Manager at the depot - a verbal warning is given and the correct procedure is explained. If the driver wishes, a yard representative can be present.

d. If there are repeat problems with either customer service or driving performance, further counselling is conducted. A written warning is given. If a written warning is given, a yard representative must be present.

e. Further repeat problems result in further counselling, possible assessment by a driver trainer or retraining under the Driver Authority course. A final written warning may be given, in the presence of a yard representative.

f. Further problems may result in termination or suspension from duties.

Verbal warnings remain in force for 6 months, written warnings remain for 1 year and final written warnings are reassessed after a 2 year period.

The procedures outlined above do not affect the right of Busways to dismiss an employee without notice for proven serious misconduct.

If the matter is serious enough for termination, it will be dealt with quickly. Should the complaint be substantiated, then the employee's services will be terminated from the starting date of the suspension.

"SURVEILLANCE CAMERAS MONITORING OF ORDINARY WORK PERFORMANCE (p122 of manual)

The ordinary work performance of drivers will not be monitored through surveillance cameras. Access to recorded material will only be allowed for an authorised investigation."

EMPLOYEE'S RIGHT TO VIEW RECORDED MATERIAL (p123 of manual)

Employers will be advised prior to an authorised person reviewing recorded material of an incident.

If an employee is subject to disciplinary proceedings due to an incident being well viewed, we will provide, where available, a copy of the incident when requested by the employee within 14 days of the commencement of those proceedings.

If there is the need to view recorded material in relation to a safety incident...the driver concerned will be given the opportunity to view the recorded material as soon as practicable."

[7] This allegation against the applicant was that he had slammed on the brakes of a school bus causing injury to a number of students who were thrown forward.

[8] Ms O'Keefe had been involved in supervising the students getting onto buses. On the day in question, she had observed a Busways bus stop opposite the school. The driver informed her that his name was 'Dizzy' (the applicant) and he had returned the students to the school after they had been verbally aggressive and offensive to him after he had mistakenly taken a wrong turn. It was Ms O'Keefe's evidence that he had acknowledged 'slamming the brakes on'. Ms O'Keefe had agreed with him that students' offensive language was not acceptable, but neither was using the bus as a 'lethal weapon'. Ms O'Keefe insisted she had used this expression, as it was language she would not normally use. Ms O'Keefe observed one of the students with a lump on her forehead. Ms O'Keefe prepared an incident report and emailed it to Mr Finnerty at 7:20pm that day. In oral evidence Ms O'Keefe said:

"The most vivid part of the discussion for me was obviously the bus driver arriving back - and I use the words "clearly agitated", even though I hadn't met the bus driver personally before. Rapid speaking; sharing what had happened; being quite disappointed, angry, at the students for the language they were using; kept repeating how unacceptable that language was. I then asked obviously, "What has happened?" and that is when the conversation was very much that he took the wrong turn off a roundabout. As a result, the students probably not so politely informed the driver that he'd taken the wrong turn. As a result of that, I remember very vividly the driver telling me that he slammed the brakes on, to which again it is very clear in my own mind how I responded to that. In saying to him that while that sort of language is completely unacceptable, so is driving a bus as a lethal weapon."

[9] The next morning Ms O'Keefe greeted some of the same students at the school gate. She said some of them reported having a headache after hitting the seat bar or the window the day before. She also had a phone call from a parent whose daughter stayed home from school due to having a very bad headache. Ms O'Keefe asked some of the students to write a report of what had happened. They all reported being thrown or receiving an injury after the bus driver had slammed on the brakes. Ms O'Keefe passed the reports on to Mr Finnerty. She also brought a student to his office with a lump on her head.

[10] In cross examination, Ms O'Keefe could not recall if the applicant had asked if an ambulance needed to be called. The applicant claimed to have handed Ms O'Keefe a piece of paper with the offensive language written on it. She denied receiving any piece of paper from the applicant. She clearly recalled the students admitting swearing at the driver and that he had slammed on the brakes. His account, told to her at the time, corresponded to what the students had told her. She insisted the applicant had agreed that he had 'slammed on the brakes'. There was no other reason why he would have done so.

[11] Mr Finnerty gave an account of his conversation with Ms O'Keefe on 3 August 2010. He said:

"Yes, that there was an issue where the bus had returned after apparently missing a turn. The students got upset because the turn was missed and, because they were upset, they yelled out some inappropriate language. The bus driver had then slammed on the brakes and then, because of that, there were some injuries as a result of that."

[12] Mr Finnerty contacted Busways at 3:30pm and left a message for Mr Mason to call him back. Mr Mason did so the next day and Mr Finnerty informed him of the incident. Mr Mason said the matter would be investigated.

[13] Mr Finnerty said he had received a call from a parent on 4 August 2010, in which the parent described how her child had hurt her arm after being flung from the seat when the bus' brakes were slammed on.

[14] In cross examination, Mr Finnerty agreed that the applicant had previously raised the issue of the children swearing on his bus. Mr Finnerty said the applicant was very animated, upset and angry at the time. Mr Finnerty added:

"I've met Dissy a number of times and when I speak to Dissy, he's very respectful to me. Very respectful to adults. You can see that. Unfortunately, some of our kids at various times, however inappropriate, do act and use improper language. Dissy doesn't take this well. Dissy gets very upset and emotional when students do swear, and he doesn't seem to have those mechanisms to work out how to deal with them; so the response is mostly in anger."

[15] Mr Finnerty conceded that the applicant did not tell him he was angry. However, one could see he was upset. On 11 August 2010, the applicant made a written complaint about the students' behaviour on 3 August 2010. Mr Finnerty deposed that he had not experienced a bus driver previously reporting such language to the School.

[16] The respondent maintained that the CCTV footage does not show the children swinging on the straps or moving around the bus. It clearly shows them falling forward after the bus had stopped. It was noted that Mr Yearsley, the Union co-delegate, who had attended the applicant's disciplinary meeting, described the footage as 'just the kids being thrown about the bus. Like, they were being jerked about. You could see it.'

[17] It was Mr Mason's evidence that on the 5 August 2010, he received a call from Mr Finnerty who had told him that there were 'a few kids running around with eggs on their foreheads' and he was obtaining statements from them.

[18] In cross examination, Mr Mason acknowledged that the applicant had driven the same bus, on the same route, with the same students, 10 days after the incident.

[19] Mr Cooper did not agree that the CCTV footage showed the children misbehaving and swinging off rails. He observed the bus come to a halt and the kids move forward. Mr Cooper agreed that if the applicant had reported the incident to Mr Eddy Gin (Control Room Operator) at the Depot he should have interviewed Mr Gin before the applicant was terminated. However, the applicant had never told him that he had radioed Mr Gin and he only became aware of this claim when he read the applicant's statements. (I note that the applicant had claimed that he radioed Mr Gin about the incident. However, when confronted with the radio records of no such contact, he agreed he had not done so.)

[20] In cross-examination, the applicant denied that he drove the students back to school because of their swearing and that he was frustrated. He did so because they were interfering with his work. He also denied that he was angry, upset or emotional when, on an earlier occasion, he went to complain to Mr Finnerty about the students' behaviour.

[21] The applicant denied the allegation of recklessly slamming his brakes on and causing injury to students. The applicant said the students had been misbehaving on the bus. He had asked them to stop, because they may get hurt. If they did not stop he told them he was taking the bus back to the School.

[22] In oral evidence, the applicant denied telling Ms O'Keefe that he had 'slammed on the brakes' because he would never do so. He said the students had started misbehaving by swinging on the straps about 10 seconds into the journey and he turned the bus around at a speed hump only 50 metres from the School.

[23] In cross examination, the applicant reiterated that he never got frustrated at customers or students when driving his bus. He denied taking the students back to School because he was frustrated; rather, the swearing was interfering with his work. The applicant denied he was angry or upset when he had earlier reported the students' swearing to Mr Finnerty.

[24] On 17 August, Mr Mason was approached at the Depot by a customer who alleged the applicant had threatened and abused him while he was travelling on his bus. Mr Mason completed an occurrence report after the customer left. It said:

"Customer came into depot very emotional stated he caught Rte 745 bus yesterday Driver ID ET 1193 Fleet 568. Bus was � hr late @ Adrienne/Lamb where he got on bus. At Plumpton he received a message on his phone & driver told him to stop playing with his phone. Customer stated he turned phone off. In Debrincot Ave driver failed to turn into Maple St. When customer said you should have turned there, driver slammed on brakes & began abusing customer aggressively, swearing & threatening to cut his throat. Driver then travelled via Debrincot, Glassop, Kurrajong along Whalon Res, Boronia to Maple St & Dropped customer."

[25] The same day, the complainant attended a meeting with Mr Mason, Mr Cooper and Mr Maurice Hogan, Operations Support Manager, and provided the following account of the incident:

"On Monday 16.08.2010 at approximately 4:38 I got on the 745 bus from glennding to st marys. I sat at the front of the bus, at plumpton shops I was receiving a message and the alarm tone went off the bus driver then told me to stop playing games. I then informed him it was my message tone I was not playing games. He then drove the bus through to debrincot ave. We went passed maple rd where we should have turned left. I said oh shouldn't we have turned left there he then pulled over to the side of the road and yelled at me 'fuck you I will kill you, I will cut your fucking throat' and gestured to cutting my throat yelling I will kill you I will kill you he then continued to drive down to glossip st left then left again on to kurrajong ave all the way to baronia rd then back down left on to debrincot ave then travelled normal route to st marys when we arrived at my stop on Philips street he opened the door then said to me so no hard feelings."

[26] At 5:00pm that day, the applicant was called to a meeting with Mr Cooper, Mr Mason, Mr Hogan and Mr Yearsley (Union co-delegate). The applicant was advised it was a disciplinary meeting which could result in his dismissal. Mr Mason said the applicant had not requested a support person. After the nature of the complaint was outlined, the applicant was asked questions about his version of events. He refused to answer any questions without first seeing the written complaint. The applicant was reminded a complaint need not be in written form. The applicant was given the occurrence report and the meeting was adjourned to allow him to read it. Upon resumption, the applicant alleged it was the complainant who had threatened him. He denied all the allegations in the occurrence report and said that there had been students on the bus at the time. (I note however, that the CCTV footage confirmed only the complainant and the driver on the bus.)

[27] In cross-examination, Mr Mason agreed that he could not see any gesture of the applicant threatening to cut the complainant's throat as was alleged by the complainant. Mr Mason also agreed that the complainant had not mentioned in his statement that the applicant had slammed on the brakes. Mr Mason did not consider this a crucial piece of omitted evidence.

"...they had tears running down their cheeks and they were quite emotional about an incident that happened on the 754 bus on the afternoon of 16 August".

"So at around Plumpton shops the customer states that he received a message on his phone which has a type of a siren sound of - which the driver of the bus at the time complained about the phone. The customer states that he then turned the phone off when the bus was coming down Debrincat Avenue at St Marys, the route the bus takes is left into Maple Street and that particular turn was missed. The customer states that he said, "You should have turned left into Maple Street. There's a bus stop down there." The customer stated to me that the driver then slammed the brakes on, got out of his seat, became aggressive and threatened to cut his throat. The bus then proceeded on, went around the block through Whalan Reserve back to Maple Street and continued onto St Marys where the customer alighted from the bus. On the same day, the 17th in the afternoon around 4:15pm or thereabouts, the customer was sighted by me as he left the premises next door. As he walked past I went out the front to check on how he was because I realised he was so emotional that morning. I asked him if he'd like to come in and relay what he'd told me to Mr Hogan who was the operation support manager and to Mr Brad Cooper who was our human resources manager. The customer relayed the same story to them as what he'd relayed to me in the morning and was quite emotional in telling that story as well."

[29] In Mr Cooper's evidence, he accepted that there were discrepancies in the occurrence report and the complainant's later statement concerning the brake slamming and gesturing to cut his throat. Mr Cooper recalled that he may have raised the discrepancies with the complainant. Mr Cooper said he did not raise these discrepancies with Mr Tisse (at a subsequent disciplinary meeting), nor could he recall anyone else doing so. However, Mr Cooper denied he was being untruthful. Mr Cooper said he recalled from the video footage that the applicant stood up and turned around to face the customer.

[30] In cross-examination, the applicant claimed that during this incident he was scared and fearful for his life. He was worried the passenger might have a knife. The passenger was verbally abusive and said he would kill him if he didn't turn the bus around. He claimed to have tried to ring the base immediately, but could not engage the green light to gain him radio access. When asked why he omitted this detail from his statement, he said he did not think it was relevant to put it in his statement.

[31] The applicant insisted that it was the passenger who was the aggressor. The passenger had said 'I'm not going to turn my fucking phone off prick if someone rings me and my phone goes off, stiff shit'. He claimed that after he missed a turn the passenger said 'Hey Mother fucker you missed the turn off - No cunt I am getting off at Maple St, reverse the bus or I will cut your throat'. The applicant said that even when the passenger got off the bus, he continued swearing and threatening him.

[32] Mr Mason identified a number of other incidents in 2010 involving the applicant. On 29 January 2010, customers alleged that the applicant had hung out the driver's window and abused them as they crossed the road behind the bus. The applicant claimed that the customer was a liar. Mr Mason said that the CCTV footage was consistent with the customer's version of events and the applicant was given a final written warning.

[33] On 30 May 2010, the respondent received a complaint of rudeness about the applicant. When a meeting was convened to discuss the complaint, the applicant refused to respond and sought a copy of the complaint. The applicant returned a written response suggesting that other witnesses would have made a complaint, if the allegation was true; therefore it was not true. The notation 'conflicting statements' was marked on the applicant's file. In oral evidence, Mr Mason said this notation was made whenever an allegation or complaint could not be proven or because of differing versions or accounts of the incident.

[34] On 4 June 2010, another driver complained about a dirty bus. The applicant was identified as the last driver of the bus. He attended a meeting with Management and said he always swept his bus and the CCTV footage would prove he had. It did not.

[35] Attached to Mr Cooper's statement was a document identifying various incidents in the applicant's employment record. The document records events such as occurrence reports, driver errors and complaints and what action, if any, was taken. It does not necessarily involve a disciplinary outcome. Other actions may include verbal warnings or a note that no action was taken. Mr Cooper said it was Busway's policy not to hand over written complaints to drivers. This was for privacy reasons. In cross-examination, Mr Cooper accepted that the only disciplinary matters in the record (other than those in respect to his dismissal) were 12 February 2008, 2 February 2010 and 29 January 2010. The applicant did not challenge a minor damage incident or the other incident of him being late.

[36] The applicant denied the allegation for which he was given a warning on 5 February 2010. He disagreed with the complainant's version of events, which was that on 2 February 2010, he had braked so hard that a child had fallen off a passenger's lap and another passenger spilt his coffee. The applicant also denied abusing or swearing at the passenger. He said 'no one fell off, no one hurt'.

[37] The applicant also denied an incident on 30 May 2010, in which a complaint had been lodged that the applicant had an argument with the complainant. The applicant also refuted the allegation of not cleaning his bus. He also denied ever being provided with customer service training by the respondent.

[38] In his statement, the applicant said he had little success in finding alternative employment since his dismissal because references were required. His income was $212 per week from Centrelink.

[39] In cross-examination, the applicant conceded he may have been late for work on occasion; but only ever by two or three minutes. The applicant said that none of the 21 references in the employment record of him being 'rude to passengers' were his fault. In fact, he had never been rude to any passenger.

[40] The applicant was asked why the CCTV footage shows him without two hands on the steering wheel. He agreed it was important to always have two hands on the wheel. He explained he may have had some 'numbness or something' (in one of his hands) or had been distracted by something.

[41] As mentioned earlier, on 11 August 2010, the applicant made written complaints about student behaviour on 3 and 10 August 2010. The following day, he made a written complaint about workplace bullying and harassment. Mr Mason and Mr Cooper met the applicant on 12 August 2010, to discuss both these complaints. However, he refused to name the person/s he alleged were bullying him. In light of this, it was decided that no further action would be taken.

[42] On 18 August 2010, Mr Tisse, Mr Cooper, Mr Hogan and Mr Mason reviewed the statements of the students and teachers regarding the school bus incident. The next day, the applicant attended a meeting with Mr Cooper, Mr Hogan, Mr Mason and Mr Yearsley. Witness statements were read to him and the CCTV footage shown. The applicant's conduct was reviewed and the allegations in the incidents were found to be proven. His employment was terminated for gross misconduct.

[43] In cross-examination, Mr Mason said that Mr Tisse did not view the CCTV footage. He, Mr Cooper and Mr Hogan put the facts to Mr Tisse and had said the applicant was guilty of serious and wilful misconduct. Mr Tisse had agreed the applicant should be dismissed.

[44] Mr Mason conceded that he had viewed the CCTV footage before notifying the applicant and had two meetings with the complainant before speaking with the applicant. While the CCTV footage is not clear as to slamming on the brakes, Mr Mason said he wrote this down after being told so by the complainant.

[45] Mr Cooper gave his version of events at the meetings with the applicant. He had attended the meeting on 12 August 2010, to discuss the applicant's complaints. The applicant had said he just wanted the respondent to know how he'd been treated by another employee and that 'this is the beginning of the end of my working time with the busway'.

[46] In the meeting of 17 August 2010, concerning the passenger incident, the applicant was given the occurrence report. He had then said it was the customer who swore at him, threatened him and called him a 'motherfucker'. The applicant had denied that he was running late on that shift, although ticket records indicate he was running 33 minutes late. Mr Cooper provided Mr Tisse with the summary of the complaints against the applicant, which record 21 instances in five years of 'rude driver' complaints, where there were conflicting statements between the various complainants and the applicant.

[47] Mr Cooper said that in the final meeting with the applicant on 19 August 2010, the applicant had requested copies of the students' statements, which were denied for privacy reasons. Mr Cooper said that when shown the CCTV footage, the applicant said 'the students fell forward because they were misbehaving; Bob (Mason) had always wanted to get rid of him and that this was all a set up and I'll see you in Court'.

[48] In oral evidence, Mr Cooper made a number of concessions. Initially he said that Mr Yearsley had been at the disciplinary meetings as the applicant's representative; he later conceded Mr Yearsley was simply there as a witness. Mr Cooper said the CCTV footage of the passenger incident, went for 1hr 30 mins to 1hr 40 mins. It was more than the 10 minutes Mr Yearsley had estimated. Mr Cooper also conceded that the applicant could have been given copies of the students' statements with their names blacked out. Mr Cooper agreed that the respondent's manual requires Busways to inform a driver before Management views CCTV footage.

[49] Mr Cooper accepted that the students' statements were received on 4 or 5 August 2010, and nothing was investigated until 18 August. He acknowledged that the respondent should have acted sooner.

[50] Mr Cooper denied that Mr Tisse had told them at the meeting on 17 August 2010, to 'terminate the applicant'. He accepted his evidence conflicted with Mr Mason's evidence. Mr Cooper denied that Mr Mason had said that they only went through the events of 3 August 2010 as a 'courtesy' as the applicant was going to be terminated anyway. Mr Cooper said that Mr Tisse was very concerned with the allegations about injuries to students and he had instructed Mr Mason to go back and get the applicant's version of what happened.

[51] Mr Cooper agreed that bullying was a very serious allegation. It would have been fully investigated if the applicant had wanted something done (which he did not) and was prepared to co-operate. The applicant would not say who the bully was. Mr Cooper could not explain why the applicant's complaints did not appear in any of his files.

[52] Mr Yearsley has been employed by the respondent for 11 years. He was asked by Management to attend the two disciplinary meetings. Mr Yearsley agreed that he was not there to represent the applicant's interests. He had not been involved in any disciplinary meetings before.

[53] Mr Yearsley made a record of the two meetings as follows:

"Dizzy was told that the meeting was about a complaint that could lead to his termination. He was told they had received a complaint from a customer, Dizzy asked which customer and was told they could not give out that information. The management then read out the complaint to Dizzy and asked him to give his side of the story and he refused. They explained that this was his chance to defend himself and he refused. This went on for about two hours before having a break for 20 minutes. We looked at the video and Dizzy tried to explain his actions on the bus. Management then asked him why he had done some things but he still refused to co operate (sic). They showed Dizzy a copy of the complaint minus the customers details, but Dizzy was still reluctant to help himself.

Dizzy was informed that this meeting could result in his termination.

Dizzy was told that management had received a complaint from a school which involved serious misconduct where students had been injured as a result of his driving. Dizzy said he knew nothing about this. Management produced numerous letters of complaint. Dizzy asked to read them. Brad read 3 or 4 of them and then Dizzy was asked to put forward his version of events. Dizzy still refused to cooperate and was told that this was his chance to defend himself. He continued to ask to read the complaints himself but was told they had been summarised, which they had been. We watched the video which clearly showed the children being thrown around the bus. He was then asked to explain his actions which he still refused to do.

He was then told that management had no alternative to (sic) terminate his employment without notice. It should be noted that management took their time to explain everything to Dizzy and repeatedly asked if he understood the consequences if he continued to refuse to cooperate."

[54] Mr Tisse deposed it was not necessary for him to be consulted before a driver was dismissed. Mr Mason also had the authority to do so. Mr Tisse said that the issue of school student safety was viewed very seriously by the respondent. He was aware that the incident of 3 August 2010, had not been put to the applicant before the 18 August 2010 meeting.

[55] It was Mr Tisse's evidence that he had the applicant's file before him in the meeting, but he did not go through it in a lot of detail. He did not view the CCTV footage. Mr Tisse had been told the applicant had received a final warning, as well as several other counsellings and verbal warnings. Mr Tisse conceded that he was not told the applicant contested all his previous warnings. Mr Tisse deposed that he had not told Mr Mason to dismiss the applicant. Rather, he had said:

"Q: So Mr Mason gave evidence that you said during this meeting, "Looking at the driver's file and hearing from Hogan, Mason and Cooper, this guy has to be gone, he's got a very bad history"?

A: No, that's not what I said. What, what I said was that, "This particular incident on the 3rd was extremely serious, so go and talk to him and find out what has actually happened. And if he has actually wilfully done this and put the children's lives at risk, that's a very serious matter and we can't employ a bus driver who has done that."

Q: So if Mr Mason told his Honour that at the meeting on the 18th you had already made the decision to terminate him, being the applicant, regardless of what he said about the matters of 3 August?

Q: Can you offer any explanation why Mr Mason might say that if it's incorrect?

A: I don't know. He, he might have thought that because of the evidence, but the next day they were to go and talk to him, and that was the reason that they did have a meeting."

[56] Mr Tisse did not believe the applicant had received a 'really rough deal'. Mr Tisse regarded the student incident as more serious than the passenger incident. He added that if a driver is on a final warning and the same thing happens again, he/she is liable to be terminated. Nevertheless, he accepted that the other matters in the applicant's file did not greatly concern him.

[57] Both parties had a lengthy adjournment opportunity to consider and prepare comments and submissions on the evidence of the witnesses.

[58] Mr J Wormington submitted that the applicant did not deny that the two incidents on 3 and 16 August 2010 had occurred, but he strongly disputed the versions of events relied on by the respondent to justify his dismissal. Mr Wormington noted that the applicant's letter of 12 August 2010, alleging workplace bullying predated the passenger incident and, at that time, the applicant was not even aware that the school bus incident was under investigation. In any event, Mr Wormington noted that there was no evidence of any injuries to the students, except for an observation of a bump to one girl's head.

[59] Mr Wormington identified discrepancies in Mr Mason's occurrence report of the passenger incident and the complainant's report and noted that there was no explanation why the complainant was not subpoenaed by the respondent to give evidence in this case. Mr Wormington was also critical of Mr Mason's evidence as to when he had prepared the occurrence report.

[60] Mr Wormington submitted that Mr Cooper's evidence was totally unreliable and he was an evasive witness. Mr Cooper claimed that he had put the discrepancies (referred to above) to the complainant on 16 August 2010, but he could not have known the CCTV footage did not show a throat cutting gesture because he said he had not viewed the footage until the next day.

[61] Mr Wormington put that the respondent's evidence as to Mr Tisse's role in the matter was 'all over the place'. Mr Mason claimed that Mr Tisse had told him to dismiss the applicant. This was denied by Mr Cooper and Mr Tisse. Mr Wormington said that Mr Mason's evidence should be preferred, which meant the decision to dismiss the applicant had been made before the allegation had even been put to him. This was a significant procedural deficiency. Moreover, the actual decision maker - Mr Tisse - had not even viewed the CCTV footage. He merely looked at a few documents and accepted the recommendations of Mr Cooper and Mr Mason.

[62] Further, as to the school bus incident, Mr Wormington said that Mr Finnerty had said the applicant was always respectful to adults. Therefore, he must have been respectful to the adult passenger complainant. Mr Wormington put that Mr Finnerty and Ms O'Keefe had made value judgements as to the demeanour of the applicant (agitated, frustrated, upset, angry) without taking into account 'cultural peculiarities'.

[63] Mr Wormington submitted that the applicant should be believed that he had not heard Ms O'Keefe mention the bus as a 'lethal weapon'. He had denied telling her he had slammed on the brakes. He insisted that he had given her a piece of paper on which the offensive language was written. Mr Wormington conceded that the applicant admitted to braking, but not slamming on the brakes. He had done so in order to go over a speed bump. The weight of the bus resulted in the tyre coming into contact with the floor of the bus. Mr Wormington added that it was significant that the applicant drove the same children, on the same route, twice more, without incident. At its highest, Ms O'Keefe's evidence did not demonstrate wilful conduct by the applicant.

[64] Mr Wormington said that the decision to dismiss the applicant was made before the 19 August 2010 disciplinary meeting. The school bus incident was not even raised in the 17 August 2010 disciplinary meeting, even though Mr Mason was aware of it at the time. Mr Wormington believed that Mr Mason did not raise it because he didn't consider it to be serious.

[65] Mr Wormington challenged the claim that the applicant was unco-operative during the disciplinary meetings. He queried how a meeting could last three hours if the applicant was unco-operative. Moreover, the report of the meeting noted 'driver interviewed at length'. Mr Wormington said that Mr Yearsley's evidence was clear, in that he was not representing the applicant, but was a Busways witness. There was no point in the applicant asking for a support person in these circumstances.

[66] Mr Wormington addressed the applicant's work record by noting that Mr Cooper's evidence was that the record was not a disciplinary record. Mr Cooper conceded the document recorded only two disciplinary matters and the final written warning was for an incident the applicant claimed was not his fault. The applicant denied all the other incidents of rude behaviour. In any event, it was merely hearsay.

[67] In addressing each of the matters in s 387 of the Act, Mr Wormington submitted that in respect to subsection (a), there was no valid reason for the applicant's dismissal. In the passenger incident the complainant was the aggressor and the respondent had acted on a verbal complaint without hearing the applicant's version of events. The applicant was intuitively aware that the respondent had intended to terminate his employment when he complained about bullying. The respondent knew of the school bus incident, but did not raise it with him until 19 August 2010. The applicant had not been involved in the investigation. Even so, the applicant had not acted inappropriately. The children were acting unsafely and the applicant simply took them back to school.

[68] As to subsection (b), the applicant was denied copies of the written allegations. Given his poor grasp of English, he should have been given sufficient time to consider the allegations. The respondent's conduct during the disciplinary process amounted to 'ambushing' and 'bullying' of the applicant.

[69] In respect to subsection (c), Mr Wormington put that the applicant was not given an opportunity to respond or be heard as to what penalty was appropriate.

[70] The applicant was not offered a support person of his choice (subsection (d)). Where there was a conflict as to what was said in the disciplinary interviews, Mr Wormington put that the applicant's version of events should be preferred.

[71] As to subsection (e), the respondent had a policy of giving warnings to employees in relation to verbal complaints which were not investigated. This was unfair.

[72] Mr Wormington put that the numerous procedural deficiencies in the process were unacceptable, given the size of the respondent's business (subsection (f)) and Mr Wormington noted that the respondent had dedicated human resources advisors (subsection (g)).

[73] As to other matters (subsection (h)), the applicant is 56 years of age. Mr Wormington observed that the applicant will have great difficulty in finding alternative employment. Moreover, the respondent has a large number of depots; any one of which the applicant could be reinstated to.

[74] Mr Wormington submitted that the applicant should be reinstated without loss of entitlements and continuity of service. In the alternative, compensation should be awarded at the higher end of the scale.

[75] Mr N Chadwick accepted that the respondent bore the onus of proving the allegations against the applicant resulting in his summary dismissal. The Tribunal must find there was a valid reason for dismissing the applicant. The reason must be 'sound, defensible and well founded': See Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371.

[76] Mr Chadwick put that the applicant had a history of problems with students at the School and had appeared frustrated and angry when he had approached Mr Finnerty to complain about their behaviour. The applicant had problems with students who were disrespectful towards him.

[77] Mr Chadwick said that in the school bus incident, the applicant had slammed on the brakes after missing a turn, which caused some students to jerk forward. This was clearly shown on the CCTV footage and he had told Ms O'Keefe he had slammed on the brakes. Ms O'Keefe was an impartial, unbiased witness who had a clear recollection of events. She was a professional and impressive witness whose evidence should be believed over that of the applicant's. Mr Chadwick put that the evidence of Ms O'Keefe, the students and the CCTV footage was entirely consistent with the bus being stopped suddenly and the children jerking forward. There was nothing to support the applicant's version of events. The only conclusion was that the applicant had driven a bus with up to 45 school students on it. He slammed on the brakes because the students were swearing at him. It was a deliberate and wilful act which justified summary dismissal. His conduct struck at the core of the employment relationship.

[78] As to the passenger incident, Mr Chadwick conceded that the CCTV footage did not disclose a finger being drawn across the applicant's neck. However, the incident should be seen in the context of the applicant's long history of complaints of him being rude to passengers. Far from being scared and fearful for his life, the CCTV footage shows the applicant stopping the bus, getting out of his seat, facing the passenger, and pointing at him.

[79] Mr Chadwick said that the applicant had an enormous, but mistaken, opinion of himself as a model employee. He claimed he was never rude to passengers, never got angry or frustrated and was a responsible driver. However, Mr Chadwick noted that the applicant had 73 complaints relating to his employment, 21 of which involved rudeness to passengers. He was an employee who took no responsibility for his actions. Mr Chadwick said the applicant had admitted to driving with one hand on the wheel. This conduct demonstrated he was incapable of accepting or understanding his basic responsibilities as a bus driver.

[80] Mr Chadwick put that the applicant knew his employment was in jeopardy when he lodged his bullying allegations on 12 August 2010. However, at that point, the respondent was nowhere near any decision to terminate his employment because the investigation into the school bus incident had not commenced and the passenger incident had not even happened.

[81] Mr Chadwick submitted that the proven allegations against the applicant constituted a valid reason for his dismissal (s 387(a) of the Act). The applicant had engaged in serious and wilful misconduct and his record of employment was a relevant factor in the decision to dismiss him.

[82] It was Mr Chadwick's submission that even if there were some procedural deficiencies in the investigation, (which was not conceded), they would not outweigh the seriousness of the applicant's misconduct. Mr Chadwick relied on the definition of serious misconduct in Reg 1.07 of the Act, as 'conduct that causes serious and imminent risk to health and safety'. So even if the conduct was not wilful, it satisfied the Act's definition of serious misconduct.

[83] Mr Chadwick noted that the applicant was notified of the disciplinary meetings of 17 and 19 August 2010. However, when he was given an opportunity to respond to the allegations, he was unco-operative with Management. He merely denied the allegations and blamed the students and the complainant passenger. The applicant was not denied an opportunity for a support person. In fact, he never asked for one. Mr Chadwick put that the applicant had a poor work history and had been warned and counselled on numerous occasions. The respondent had followed a fair and proper procedure in investigating the allegations and putting them to the applicant. Even so, it had a small human resources function. In these circumstances, Mr Chadwick put that summary termination was appropriate and the applicant's unfair dismissal claim should be dismissed.

[84] There is no question that the applicant was a person protected from unfair dismissal (s 382 of the Act); that the applicant was dismissed from his employment at the initiative of the employer (s 386); that the respondent was not a small business employer; and that the applicant's dismissal was not a case of genuine redundancy. Accordingly, the jurisdiction of FWA to determine this matter is not in doubt.

[85] The applicant was summarily dismissed for serious and wilful misconduct arising from his alleged behaviour during the incidents of 3 and 16 August 2010. The respondent also had regard to the applicant's employment record when considering whether or not to dismiss him. Even putting the employment record aside, in my view, if the respondent's version of what occurred in either of the incidents is accepted, then the respondent was entirely justified in summarily dismissing the applicant from his employment.

[86] In the circumstances of summary dismissal for serious misconduct, one can relevantly find a definition of 'serious misconduct' in the Act's Regulations at 1.07 as follows:

(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:

(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:

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

[87] Thus, it will be seen from subclause 2(a) above that an essential ingredient of what constitutes serious misconduct is the notion that the conduct amounts to a repudiation of the contract of employment by the employee. Put another way, the conduct will disclose a wilful and deliberate intent of the employee which strikes at the heart of the employment contract.

[88] Did the serious misconduct here alleged by Busways constitute a wilful repudiation of the contract of employment by the applicant? In deliberating on this question, I refer to the following authorities:

[89] In North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p 616:

"It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions."

[90] The 1959 English case referred to above makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be 'wilful':

"... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions: and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions."

[91] In Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160, his Honour, McHugh J, dealt with the ordinary relationship of the employer and employee at common law as follows:

"The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:

"[c]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. ...[T]he 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 its future conduct arises."

In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal.

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. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. 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."

[92] More recently a Full Bench of FWA considered whether a valid reason for summary dismissal (a consideration under s 387 of the Act) involves different considerations to dismissals on notice. In Magers v Commonwealth of Australia (Department of Health and Ageing) [2010] FWAFB 4385 ('Magers'), the Full Bench said:

[10] It is well established that the requirement to consider whether a valid reason for a termination exists does not involve different considerations for summary terminations and terminations on notice. In a recent Full Bench decision it was said:

"[13] ... The approach to s 652(3)(a) and its predecessors in the context of summary dismissal has been well established in decisions of Full Benches of the Commission. In Annetta v Ansett Australia (Annetta) a Full Bench said:

"[9] It was submitted on behalf of the appellant that in cases of summary dismissal there can be no valid reason for the termination within the terms of s.170CG(3)(a) unless the employee is guilty of conduct justifying summary dismissal at common law. In this respect it was further submitted that the common law requirement goes beyond wilful disobedience in that the conduct must amount to a refusal to be bound by the terms of the contract: Adami v Maison de Luxe Limited [1924] HCA 45; (1924) 35 CLR 143. Mr Langmead submitted that the appellant's conduct on 17 February, 1998 could not be so regarded because there was no instruction given to the appellant, only a request, and the appellant provided an adequate explanation for not doing the work he was asked to do.

[10] We think there are a number of answers to this submission. It is generally accepted that the term "valid reason" should be construed to mean "sound, defensible or well-founded": Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373. Although that case concerned legislation which has now been repealed it is still regarded as authoritative. To limit the meaning of the term "valid reason" by importing a test amounting to repudiation of the contract at common law is unwarranted and impermissible. Secondly 170CG(3)(a) focuses on the reason for termination. The appellant's construction would result in an arbitrary application of the section in some circumstances. Take a case where an employee is guilty of conduct which does not amount to misconduct justifying summary termination. If the employer terminates the employment on notice there would be a valid reason for doing so. If the employer terminates the employment summarily there would not be a valid reason for doing so. The validity of the reason cannot be made to depend on whether or not the termination was on notice. Thirdly, however, we are not convinced that if the common law test were applied it would make any difference in this case. The Senior Deputy President found that the appellant had refused to do the duties he was requested to do and that the explanation he gave for the refusals was unreasonable. We think these findings were clearly open to her. The appellant did not say during the enquiry into his conduct that he was not given a direction. Furthermore he continued to maintain his right to refuse to do work which was not his and to refuse to rectify work which somebody else had performed unsatisfactorily. The appellant took this position in an interview more than a week after the day of the refusals. This amounts to the unilateral inclusion of a new term in the employment contract and by necessity amounts to a refusal to observe the fundamental requirement of any contract of service - to be ready, willing and available to carry out the lawful directions of the employer. In the circumstances we reject the submission that the Senior Deputy President should have found that there was no valid reason for the termination of the appellant's employment."

[14] The decision in Annetta was approved by another Full Bench in Jupiters Limited trading as Conrad Jupiters Gold Coast v G Atfield where the Full Bench expressed the matter in the following terms:

"[19] Secondly, on one reading of the decision, the reasoning of the Commissioner appears to have imposed an obligation on the employer to prove "serious misconduct" sufficient to justify summary dismissal at common law as a prerequisite to establishing a valid reason within the meaning of s.170CG(3)(a). Such an approach, if adopted, would be incorrect. Proof of misconduct justifying summary dismissal at common law is a sufficient but not a necessary condition to establishing a valid reason within the meaning of s.170CG(3)(a). Nevertheless, since for the reasons we have given we have concluded that the termination of Mr Atfield's employment was harsh, it is not necessary to take that matter further."

[15] The proposition was adopted and applied in other Full Bench decisions in Garry Robin v Worley ABB, Abdel-Karim Osman v Toyota Motor Corporation Australia Ltd (Osman) and Thomas Brian Potter v WorkCover Corporation. Those authorities are not inconsistent with the decision of Justice Jessup in Shanahan v Australian Industrial Relations Commission (No 2) where his Honour said:

"[75] There is no doubt but that, if wilfulness in the Laws sense was an essential ingredient of the university's "valid reason" for terminating the employment of the applicant, the Full Bench would have constructively failed to exercise jurisdiction if, assuming that the matter had been properly put to it, it omitted to address that question. There is also no doubt but that, on the facts of this case, the majority of the Full Bench made no reference to Laws or to the principle for which it stands. I consider, however, that there is no substance in the submissions made on behalf of the applicant in this regard, for reasons which follow.

[76] First, neither the Commission at first instance nor the Full Bench on appeal was concerned with the question whether, as a matter of contract, the university was entitled lawfully to dismiss the applicant summarily. I accept, of course, that an answer to that question would often be (and in the present case might well have been) an ingredient in the series of propositions which together provide an answer to the question with which the Full Bench was concerned, namely, whether the university had a "valid reason" for the termination. But the question whether the applicant's conduct was repudiatory was not, as such, the question which the Full Bench was required to address. It was not an essential statutory or legal ingredient, such that failure to take it into account would constitute a constructive failure to exercise jurisdiction."

[16] In the circumstances of this matter the University purported to terminate Dr Asher's employment for serious misconduct within the meaning of that term in the University's enterprise agreement. If it successfully established that Dr Asher had engaged in serious misconduct it would necessarily follow that there was a valid reason for the dismissal. However, the converse is not true. As established by Annetta, the question that needed to be considered was whether there was a "valid reason" in the Selvachandran sense - whether the reason was sound, defensible or well founded. Whether it also amounted to serious misconduct may well be a factor relating to the overall characterisation of the termination but it was not an essential requirement in the determination of whether a valid reason exists.

[17] In our view, the question of whether a summary dismissal complies with an applicable enterprise agreement is a relevant consideration to the overall question of whether the termination is harsh, unjust or unreasonable and is best considered in this case in the catch all category of other relevant matters.

[18] We are concerned that the conclusions of the Commissioner in this matter equate the concepts of "serious misconduct" with a "valid reason". Because she found that the conduct was misconduct falling short of the description of serious misconduct, the Commissioner concluded that there was no valid reason for the termination.

[19] This is an erroneous approach inconsistent with Full Bench authority. It was not argued before us that the Full Bench authority should not be followed. In our view it must be followed and applied in this case. This error alone is sufficient to find that the discretion vested in the Commissioner miscarried and the appeal should be upheld." 2

[11] These cases demonstrate that the existence of a valid reason does not depend on consistency with requirements for termination for other purposes such as the requirements of an enterprise agreement, legislation or the common law. A valid reason is one that is sound, defensible or well-founded. If a termination is inconsistent with some other obligation, that is a factor to be considered under other criteria relevant to the overall conclusion in the matter.

[12] On the basis of this line of authority the Commissioner would have fallen into error to do what counsel for Ms Magers said should have been his approach. There is no substance in this ground of appeal. Further, counsel for Ms Magers has not established that the Commissioner's finding on the existence of a valid reason for the termination is in error.

[93] Mr Chadwick quite properly accepted the onus the respondent bears in proving the applicant's serious and wilful misconduct: See Pastrycooks Union v Gartrell White (No 3) (1990) 35 IR 70. Once that onus is discharged, there still remains an open question as to whether the misconduct constituted a valid reason for the applicant's dismissal. This plainly arises from the legislative instruction found in s 387 as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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

[94] The frequently quoted authority as to the meaning of 'harsh, unjust and unreasonable' in an industrial context, is that of the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, where McHugh and Gummow JJ said:

"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted".

[95] The Full Bench in Magers above (par [10]) cited with approval the meaning of 'valid reason' as expressed by North J in Selvachandran v Peterson Plastics Pty Ltd, at 373:

"In its context in s.170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason 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, commonsense way to ensure that the employer and employee are treated fairly".

[96] There was considerable emphasis placed by Mr Wormington on the alleged procedural faults in the process leading up to, and including, the applicant's dismissal. He described them as 'ambushing' and 'bullying'. Subclauses (b), (c), (d) and (e) of s 387 of the Act relevantly deal with issues surrounding procedural fairness when an employer dismisses an employee. The High Court in Byrne & Frew v Australian Airlines Ltd spoke of 'unfair procedures' being 'arbitrary, irrational or unreasonable' when it said:

"The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation. In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl 11(a).

That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable. But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second."

[97] Mr Wormington strongly asserted that the decision to dismiss the applicant was made before the allegations concerning the school bus incident were put to him. He described this failure as the most significant and serious denial of procedural fairness in this case. Of course, if this was true and the disciplinary process was no more than a sham, it may well lead to a conclusion of procedural unfairness warranting a finding that the dismissal was 'harsh, unreasonable or unjust'. As Moore J said in Wadey v YMCA Canberra [1996] IRCA 568, 12 November 1996, an employee has a right to know the nature of the allegations being made and have an opportunity to defend him or herself:

"In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend."

[98] However, two other questions arise in circumstances where procedural faults are established; firstly, did the seriousness of the misconduct outweigh any procedural faults and, secondly, would the procedural faults have affected or altered the ultimate outcome of dismissal? In this respect, I refer to what I recently said in Batterham and others v Dairy Farmers Ltd t/a Dairy Farmers [2011] FWA 1230, at par 274:

"Nevertheless, it must be steadily borne in mind that not all procedural defects, either singularly, or in combination, will result in the Tribunal finding that a particular dismissal is procedurally 'harsh, unreasonable or unjust'. Put another way, the seriousness of the proven misconduct will not always be outweighed by any identified procedural fault/s. In this respect, I refer to a decision of the Full Bench of the AIRC in Farquharson v Qantas Airways Limited [2006] AIRC 488 at par [41]:

[41] The fact of unfairness in the employer's decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken to account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect."

[99] Another cause for Mr Wormington's complaint of procedural unfairness was that the applicant was not provided with copies of the students' statements. In this respect, I refer to an authority of the Industrial Relations Commission of New South Wales; ironically, involving the same employer as in this case and in an almost identical set of circumstances. In Busways v Johnson (1994) 55 IR 255, a Full Bench of the Commission said this:

"The Commissioner concluded at page 7 of his decision as to this procedure that:

'Despite the Company's efforts to fully investigate the alleged incident(s) which triggered Kevin Johnson's dismissal he was never given the opportunity to confront his accusers. Management met with the school principal, the student who was alleged to have received a minor injury as the result of his arm being caught in the bus door, and the student's parents. But at no time was Mr Johnson given the opportunity to be present.

That such an opportunity was not made available represents, in my view, a denial of natural justice. No witnesses came forward and Mr Johnson's services were ultimately terminated on the strength of an investigation which was flawed.

And although the evidence does not suggest that management deliberately acted unfairly towards Mr Johnson the mechanism which gave rise to his termination, the investigation process has nevertheless produced, to some extent, an unfair consequence.'

These are conclusions with which we cannot agree. Apart from the employer's obligation to keep the name of a complainant confidential which we have mentioned, the employer in this case was making decisions in the ordinary course of conducting its business (following a review process agreed with the relevant union and approved by the Department of Transport) as to whether complaints it had received from its customers were justified or not. That exercise did not involve a judicial or administrative review of what had occurred. Questions of 'natural justice' and a 'confrontation' with an accuser are not matters which ordinarily or necessarily arise in the conduct of such business affairs. They were not requirements of the agreed review process, nor are they tests which must be satisfied in a subsequent consideration of a dismissal, if challenged under section 246 of the Act. What then arises for consideration is whether the decision to dismiss was harsh, unreasonable or unjust."

[100] Another important consideration arises in cases of unfair dismissals under the Act. This is the principle found at s 381(2) of the Act, as follows:

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

[101] Before dealing with the two specific incidents, I wish to make some general comments on my observations of the applicant in the witness box and his evidence. Unfortunately, I am compelled to conclude that the applicant would say almost anything, no matter how implausible - even untruthful - to refute or distort every allegation or complaint made against him. Three examples of his untruthfulness were, firstly, he claimed to have radioed Mr Gin to report the students' behaviour on the bus; but when presented with irrefutable evidence that no such call was made, he was forced to withdraw that evidence. Secondly, he claimed that there were other passengers on the bus during the passenger incident, who presumably could corroborate his evidence that it was the passenger who was the aggressor. The CCTV footage shows no other passengers on the bus at the time. Thirdly, the applicant said, in response to the allegation he had left a dirty bus, that he always swept his bus. The CCTV footage did not show him sweeping the bus.

[102] Incredibly, when the applicant was faced with the incident / occurrence report identifying 73 complaints or incidents involving him over five years, including over 21 complaints of rudeness to customers, and a final written warning for rudeness in January 2010, he simply denied all of the complaints, or he blamed the passengers. It was as if his denials meant that the incidents did not happen and could not be relied upon by the respondent. The applicant claimed he was always the victim. However, in my view, he took no responsibility for his actions. Even when he was observed not having two hands on the steering wheel, he gave a convoluted and disjointed answer as to whether this was safe.

[103] In addition, the applicant claimed he was never rude to, or angry with, any passenger. He said he was an exemplary employee and bus driver - a model employee. Well, if this was a record of an exemplary employee, I shudder to think what a poor employee's record would look like. In my opinion, the applicant had an unjustified, overblown and exaggerated opinion of himself completely at odds with reality. Surely, dozens of passengers cannot all be wrong, notwithstanding the likelihood of a larger number of other passengers who did not take the trouble to complain. Perhaps one or two allegations of rudeness might result in giving him the benefit of the doubt - but over 20 unrelated complaints over five years cannot be a figment of someone's imagination.

[104] In my view, the applicant was an evasive, argumentative and unco-operative witness. His performance in the witness box was characteristic of his unwillingness to co-operate with Management during the disciplinary interviews; insisting instead that he would not respond until he saw the actual written complaints of the students and the passenger. I have no reason to doubt Mr Yearsley's objective observation that he was unco-operative and unwilling to answer questions of Management.

[105] In his evidence before the Tribunal, almost every answer the applicant gave was non responsive or qualified by an explanation to favourably colour the answer. In some instances the answer was irrelevant to the question. I do not accept that the applicant had trouble with understanding English. In my opinion, he was deliberately attempting to avoid answering any question which he perceived to be adverse to his interests. Even when he was confronted with incontrovertible evidence, he would answer with long winded and unresponsive explanations. In short, his evidence was entirely self-serving and demonstrated him to be a witness of little credit.

[106] In addition, I reject the applicant's claim of workplace bullying and harassment. Despite the implausibility that this bullying, by an unnamed person, had been occurring for five years since he commenced employment, his timing of a written complaint (12 August 2010) was not at all coincidental. It is no answer to suggest that the school bus incident, had not been put to him until 18 August 2010, so that his bullying complaint letter was not motivated by that incident. The applicant knew full well there had been a serious incident on 3 August 2010, and he would have known it was not going to end that day. In my assessment, his claims of bullying were nothing more than a premeditated pre-emptive strike to dilute or deflect attention from the reasons why his employment was in jeopardy. Indeed, he said as much in his letter 'I certainly know this is the beginning of the end of my working time with the bus ways. That is why this is not a complain, and that is why action not need to be taken I put this in writing because I was told to put the complain against the student who abuse me in filth, otherwise no action would be taken. I never know any other driver been asked to do so (sic)'. In passing, I note the hypocrisy of him at first refusing to name the alleged bully, while later complaining that the respondent would not name the persons who had complained against him. The whole issue of bullying was a 'red herring', designed to take the focus off the applicant's own appalling behaviour. There is, and never was, any substance to the claim.

[107] Having observed Ms O'Keefe in the witness box, I found her to be an impressive and thoughtful witness. She had absolutely no reason to falsely recreate her recollections of the incident so as to damage the applicant. She was impartial and unbiased and there is no reason to doubt her version of events. Her notes of the incident were made immediately after it occurred and it seems entirely plausible that she would recall the applicant telling her that he had slammed on the brakes and that she would have described the bus as a 'lethal weapon'; language she would not ordinarily use. It follows that I reject the applicant's denials as to these matters and his claim that he handed a note to Ms O'Keefe with some of the offensive language used by students written on it.

[108] In any event, Ms O'Keefe's recollection is corroborated by 12 students' statements; some of whom spoke of the brakes being slammed on, put on hard or stopping suddenly. The students could not have collaborated on their stories in order to discredit the applicant. They wrote their statements independently, the very next day, when their memories were fresh. I reproduce extracts from six of them to demonstrate, both consistency and independent recollection:

"We were going down the street where the round about is, he was suppose to go right but he went straight (left) when we were going down that road people started shouting saying he went the wrong way, then the bus driver stop really fast which cause lots of people to get hurt, Bianca smash her front tooth, Faatele fell forward to the chair in front of her which she got a big bump on her head, melanie got hurt I don't know how, Mark was sitting on top of the chair (the edges) he fell backwards onto the chair behind him where people were sitting and then he said he spun around a pole and hit his head. I was getting up to get my wallet because I drop it just as I was about to get up the bus driver stop as I said in the beginning he stop really fast which made me fall all the way from back to the middle where the stairs. I hit my head on the stairs on the corner where the arrow is, then I went backwards and hit my head on the floor and then I had a bad as headache after and my arm was hurting because I was trying to hold on to the poles so I wouldn't fall down but I couldn't grab on to one then I got up and went back to my seat..."

"We were going down Friars Road, meant to turn right but the bus driver turned left. When the bus driver turned left, people started swearing and told the bus driver he went the wrong way. When the bus driver knew he went the wrong way, he put the brakes on hard, really hard, people tripped over. Some people got really hurt. Faatelle got really hurt. I smashed my front teeth in the chair in front of me. Erin fell down the stairs and hit her head. Melanie in year 8, she got really hurt."

"The bus driver took a wrong turn and everyone started saying your going the wrong way and people were swearing. Then he put on the brakes and Erin fell down the stairs of the bus, Melanie hurt or cut her arm, Bianca bashed her teeth on the pole/bar and I hit my head on the pole/bar..."

"Our bus (bus 1) came late then usual it usually comes second - fourth. When the bus came we got on we went straight instead of going right. People were yelling out, we went the wrong so the bus driver pushed the brakes down while we were driving. I saw Erin was at the back of the bus and ended up near the front. Faatele hit her head and now she has a lump on her head..."

"We were going down the road from school and we got to the round-a-bout, we were meant to turn right but he went straight. So because we were all in shock some people started cheering and others were angry so they swore. The bus driver then looked at us and said something but I couldn't hear clearly. He then just slammed the breaks hard and my friends got injured. One was very bad and she was still on the ground, but he just looked back at us, smiled and kept driving..."

"The students were confused and so some started cheering taking it as a joke and some were angry so then there was a commotion, and people were yelling and swearing. When all of a sudden he slammed the brakes. It was then that my friend Faatele Tima flew from one chair and hit her head on another chair. The people that were up standing all fell on top of her. All students were distraught and shocked by what just happened..."

[109] It was said, in the applicant's defence, that there were no injuries to the students. This was not only untrue, as the evidence was that at least one student had a bump on her forehead and another had to stay home for the day, but it was more a case of good fortune that more serious injuries did not result. On a preferred view, it is irrelevant that there were no serious injuries - the actions of the applicant placed the students at a real and significant risk. His actions could not be tolerated under any circumstances and despite any provocation.

[110] Even faced with the CCTV footage, which clearly showed the bus stopping suddenly and the students falling forward, the applicant brazenly denied any wrongdoing. His evidence as to what occurred was disingenuous nonsense. Moreover, how does the applicant explain the injuries that were observed? He could not. I accept Mr Finnerty's evidence as to the applicant's demeanour when he had earlier complained about the students. He was angry, upset and frustrated with the students' disrespect for him. Like Ms O'Keefe, Mr Finnerty had no reason to wish the applicant any ill will. Indeed, he was sympathetic to the applicant's reasons for complaining about the students' disrespect. In my view, the applicant's anger and frustration when he met with Mr Finnerty was symptomatic of his anger and frustration demonstrated in this incident and the passenger incident on 16 August 2010.

[111] Mr Wormington submitted, because the applicant was respectful to Mr Finnerty (meaning he was respectful to adults), that this demonstrated that the applicant could not have been disrespectful to the adult passenger in the 16 August incident. This is drawing a very long bow indeed. It is a submission not supported by the evidence, including the CCTV footage, which I will come to shortly. A further submission was made that Mr Finnerty and Ms O'Keefe were simply making value judgements about the applicant's demeanour. They were doing nothing of the sort. They are both highly professional and experienced teachers who were capable of making observations about a person's obvious feelings and outward demeanour.

[112] Mr Wormington also emphasised that the applicant had driven the same route, with the same students subsequent to the school bus incident. I fail to appreciate the point of this submission. It was completely irrelevant to his conduct on 3 August 2010.

[113] It was Mr Cooper's evidence that when the applicant was shown the CCTV footage, he responded by saying that Mr Mason had always wanted to get rid of him, that this was all a 'set up' and he'd see the Company in court. I accept this evidence. Apart from the ludicrous and utterly implausible proposition of a 'set up', this response is indicative of the applicant's dismissive and irrational response to any criticism, even when it was supported by incontrovertible evidence.

[114] Accordingly, for the foregoing reasons, I find the applicant's conduct during the school bus incident was such as to place the health and safety of the students at significant risk. This was in clear breach of the respondent's policies and was sufficient, on its own, to constitute a valid reason for his dismissal in satisfaction of s 387(a) of the Act.

[115] The applicant claimed that it was the passenger who was the aggressor in the incident on 16 August 2010. The applicant said he was fearful the passenger may have had a knife. Mr Wormington submitted that the applicant's state of mind during the incident was a mitigating factor in his conduct. This is absurd nonsense. Far from being fearful and the passenger being the aggressor, the CCTV footage is plain evidence of the very opposite. The footage shows the applicant stop the bus, get up from his seat, turn around and face the passenger pointing his finger. This incontrovertible evidence is utterly inconsistent with a driver in fear of his life.

[116] Much was made of the failure of the CCTV footage to show the 'throat cutting gesture'. This was true. However, perhaps the passenger was 'gilding the lily' a little or over-dramatising the situation. Perhaps he genuinely believed he saw the gesture being made. In any event, nothing much turns on this inconsistency. The rest of the CCTV footage speaks volumes of how the applicant reacted; contrary to the respondent's procedures for handling difficult passengers.

[117] There was some criticism of Mr Mason's recording of the incident in the occurrence report and doubts raised as to when he did it. This was nothing, but 'clutching at straws'. The general thrust of what Mr Mason recorded and what the passenger said in his written statement are consistent. Moreover, the criticism of the passenger begs the question as to why he would go into the Depot to make a complaint personally against someone he did not know and come back again to be interviewed about it. This was plainly the actions of a passenger who was very upset and concerned about how he was treated by the bus driver.

[118] It was very curious indeed, that some time after the applicant had prepared his statement, he claimed that during the incident he had attempted to contact the Depot, but his call was blocked. I reject this evidence. It was both an afterthought, but more seriously, an attempt to recreate the incident to give the false impression that he was doing something because he was fearful; thereby giving more plausibility to his defence that he was the victim.

[119] It follows from the foregoing, that I reject the applicant's version of events surrounding this incident. I find that he acted in a hostile and aggressive manner towards the passenger, contrary to the respondent's policies. This conduct was sufficient to constitute a valid reason for his dismissal, as required by s 387(a) of the Act.

[120] It was the applicant's case that the record of employment containing 73 incidents / complaints was not a disciplinary record and, consequently, could not be relied upon by the respondent in its decision to dismiss him. In addition, it was seriously put that the respondent could not rely on the final written warning, because the applicant did not accept the validity of the warning.

[121] Firstly, it must be said that an employee's denial of a written warning does not negate the employer's reliance on it. If this was so, then the issuing of written warnings would have very little relevance in assessing an employee's performance. It would mean that an employee could merely deny the basis of the warning and it would not have any effect or ramifications. This is an absurd proposition. Moreover, the purpose of a warning is to demonstrate the seriousness with which an employer regards an employee's performance and/or conduct with a positive view to altering it. Sadly, nothing worked in this case because the applicant simply denied he was ever guilty of any wrongdoing. Indeed, he claimed he was a model employee. This was patently untrue.

[122] In any event, in deciding to dismiss the applicant, the respondent was perfectly entitled, indeed obliged, to take into account, not only the final written warning, but also what could only be described as an abysmal record of employment over five years. In this respect, I refer to the following authorities:

[123] In Aperio Group (Australia) Pty Ltd t/a Aperio Finewrap v Sulemanovski [2011] FWAFB 1436 (4 March 2011), the Full Bench said at paras 30 to 32:

"On his evidence, the decision to terminate the employment of Mr Sulemanovski was taken by Mr Allsop on the basis of the 19 August 2010 incident in which Mr Sulemanovski took some photographs on his mobile telephone inside the factory without seeking permission. This was a breach of policy against the background of a series of previous performance and conduct issues involving late attendance or non-attendance without advising the nominated Aperio officers, leaving his work station without the permission of or notification to managers, not wearing his uniform, not wearing personal protective equipment and performance and quality deficiencies.

There were three performance/conduct issues in relation to Mr Sulemanovski resulting in counselling and one written warning in 2007, involving late attendance in all cases and quality and attitudinal issues. There is little evidence about these incidents and we place no weight on those issues.

There were 10 further issues resulting in counselling and written warnings, including three final written warnings between the middle of January 2009 until May 2010, prior to the final incident on 19 August 2010.

We find that there was a valid reason for the termination of Mr Sulemanovski's employment: the breach of company policies which were known to him, in the context of a series of earlier deliberate and persistent breaches of company policies and procedures which were also known to him. The continued pattern of disregard by Mr Sulemanovski of company policies and procedures, despite numerous counselling and warnings over nearly two years is such that Aperio was entitled to lose trust and confidence in Mr Sulemanovski as an employee and his preparedness to adhere to company policies and procedures."

[124] In Re Clarke and Metropolitan Meat Industry Board [1967] AR (NSW) 16, Cook J said at page 27:

"In my view, when an employer is considering whether or not he will exercise his undoubted rights in relation to the selection and retention of employees, subject to observance of any award requirements, he is entitled to have regard to the previous conduct of an employee. For example, an employee might be late for duty on one occasion and his employer may overlook this. The employee may, likewise, be late on a number of subsequent occasions and the employer may decide not to take any action. If, however, the employee's punctuality does not improve I would think it clear that an employer would be entitled on the latest instance of unpunctuality to review the record of that employee and if he decided that his record was unsatisfactory and that he no longer wished to retain him in his employment he would have a right to dismiss him by giving the requisite notice of dismissal. In such a case, I think that the employer's action could not ordinarily be said to be such a harsh and unjust exercise of his legal right as to justify an order of reinstatement."

[125] In John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972), his Honour said:

"The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice."

[126] I also refer to what I said in Lynette Steel v Coffs Ex-Services Memorial and Sporting Club Ltd [2011] FWA 2012, at paras 59(5) and 60:

5. Surprisingly, the applicant's case was largely silent on the appalling litany of warnings and counselling's over many years. Her Union official dismissed this record as being instances of unproven conduct or unproven poor behaviour. It is not as simplistic as that. Nor can a disciplinary record of these dimensions be ignored as an invention of Management or insignificant aberrations on the applicant's behalf. By any measure, it was a truly breathtaking record.

Mr Acev valiantly sought to dismiss the two counselling's and warnings on 29 April 2009 and 12 March 2010. However, his efforts in this respect were very narrow; limited mainly, as I apprehend it, to asserting that the warnings were invalid because the applicant did not accept the underlying basis for them and had not signed them. With respect, that is not the test. Given the applicant's disposition to explain away every valid allegation made against her, I hardly would have expected her to do otherwise. Mr Acev did not, and could not challenge, the fundamental factual basis for these warnings. Moreover, they plainly demonstrated an entirely consistent pattern of poor conduct over many years.

[127] While the applicant was dismissed for serious and wilful misconduct there can be no doubt that his performance was unsatisfactory and that he had received numerous warnings about his performance (s 387(a) of the Act) and conduct. It was only a matter of time, I believe, before this appalling record would have eventually caught up with him.

[128] The evidence, particularly that of Mr Yearsley, which I accept, overwhelmingly supports a conclusion that the applicant refused to co-operate with the respondent in the two disciplinary meetings held on 17 and 19 August 2010. The meetings were intended to allow him to give his version of events. His reason for not answering questions was because he wanted to see the actual complaints. Apart from the fact that it was Company policy not to provide the actual complaint to an employee, largely due to privacy reasons (see earlier par 35), it is only necessary, as a matter of procedural fairness, that the applicant was fully aware of the allegations being made against him. Given that Mr Mason read out the complaints and the applicant was shown CCTV footage of the incidents, I do not apprehend how it could possibly be argued that the applicant was denied procedural fairness by not being provided with the passenger's complaint or the students' statements. I have no doubt that the applicant knew precisely what was being alleged against him and his failure to co-operate, reflects very poorly on him. If it was a tactic designed to deflect attention from his own conduct and behaviour, it failed miserably.

[129] Mr Wormington's cross-examination of the respondent's witnesses concentrated on minor and peripheral procedural issues, such as a failure to recall dates or times, minor discrepancies or omissions from documents or questions as to who wrote what on certain documents. While this approach may have a legitimate forensic purpose, Mr Wormington did little to address the fundamental basis for the applicant's dismissal; namely, his conduct. In my opinion, concentrating on minor or irrelevant procedural points took the applicant's case nowhere and, with respect, wasted the Tribunal's time.

[130] There was some criticism that the respondent did not speak to everyone who had known of, or who witnessed the incidents. There is no basis, let alone a requirement, for a claim of procedural unfairness, that an employer must speak to every person who may have witnessed or who had knowledge of an incident. The correct test is whether the respondent had gathered sufficient material to be satisfied that the allegations against the applicant had been sustained and that the allegations were a valid reason for his dismissal. In addition, I do not accept the personal criticism of Mr Tisse for not interviewing the applicant, for not watching the CCTV footage and for not going though the applicant's file in detail. Firstly, it was not necessary for Mr Tisse to review every aspect of the evidence against the applicant. He was perfectly entitled to have regard for the information conveyed to him by his senior managers. Secondly, even if Mr Tisse expressed a view about what should happen (which I will come to momentarily), his evidence was that Mr Mason, in any event, had delegated authority to dismiss employees.

[131] In my view, Mr Tisse was a witness of credit. His evidence was measured, thoughtful and had a 'ring of truth' about it. I reject the allegation that Mr Tisse had said 'sack him' or 'he's got to be gone' before the school bus incident had been put to the applicant. Mr Tisse's evidence was that he said:

"This particular incident on the 3rd was extremely serious, so go and talk to him and find out what has actually happened. And if he has actually wilfully done this and put the children's lives at risk, that's a very serious matter and we can't employ a bus driver who has done that."

[132] I do not accept that this evidence (corroborated by Mr Cooper), was fatally inconsistent with Mr Mason's evidence. Mr Mason might well have understood Mr Tisse to have given him authority to dismiss the applicant, but it was a conditional authority. Surely, Mr Tisse was saying no more than if the allegations are proven, then the applicant should be dismissed. This was an unremarkable and entirely rational response. For it to be elevated as some fatal flaw in the process, is to ignore the context of the meeting, the reality of the situation and my acceptance of Mr Tisse's and Mr Cooper's evidence in this respect.

[133] Another cause of complaint was Mr Yearsley's attendance at the meetings. There is no doubt that Mr Yearsley was asked to attend the meeting by Management as he was the Union co-delegate. However, there can be no criticism of Mr Yearsley. I found him to be an impartial and reliable witness. I accept that the applicant had not nominated Mr Yearsley as a support person; but conversely there was no evidence of the applicant asking for a support person and being denied the request. Indeed, the applicant said he did not ask because he did not see the point, because he knew the request would be rejected. While I do not accept this hypothetical expectation of the applicant, it sits rather oddly with his insistence of being given the written complaints and his failure to co-operate during the meetings. In any event, the test in s 387(d) of the Act, is not that the applicant was not offered a support person of his choice, but that 'there was an unreasonable refusal by the employer to allow a support person to be present'. On the applicant's own evidence, there was no request for a support person and, logically, there could have been no unreasonable refusal by the employer. Accordingly, the respondent was not in breach of subsection (d) of s 387 of the Act.

[134] In my assessment, none of the procedural complaints of the applicant were of such significance as to have denied the applicant procedural fairness such as to have resulted in a different outcome than dismissal. The overwhelming preponderance of evidence was that:

a) the applicant was notified of the reason for his dismissal; s 387(b) of the Act;

b) at all relevant times, the applicant was fully aware of the allegations against him; and

c) the applicant was afforded opportunities to defend himself against the allegations (s 387(c) of the Act).

[135] The applicant's failure to co-operate and his abject denials of any wrongdoing is no basis for assuming that the respondent had not given him every opportunity to explain his actions and defend himself. Even if I am wrong about my findings on any of the alleged procedural faults, the allegations against the applicant, which I have found proven, on the balance of probabilities, were of such seriousness as to far outweigh any minor procedural deficiencies.

[136] For completeness, given the size of the respondent's operations and its dedicated human resources expertise, I am satisfied that the procedures followed in effecting the applicant's dismissal were fair and reasonable and did not disclose any unfairness in the process (s 387(f) and (g) of the Act). The other matters I consider relevant to this case (s 387(h) of the Act) have been extensively canvassed throughout this decision.

[137] In truth, the only surprising thing about this case was how the applicant kept his job for as long as he did. His serious and wilful misconduct, most particularly endangering the safety of school students, and his inability to accept any responsibility for his actions, demonstrates to me that he is unfit to be a bus driver. His dismissal was not 'harsh, unreasonable or unjust', either substantively or procedurally, within the meaning of s 387 of the Act. Moreover, it would be contrary to both the spirit and intent of the principle of 'a fair go all round' to find otherwise. The application must be dismissed. An order giving effect to this conclusion is issued contemporaneously with this decision.

Mr N Chadwick, Chadwick Workplace Law, for the respondent

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