s.394 - Application for unfair dismissal remedy

• [1] On 27 November 2024, Mr Scott Mitchell lodged an application with the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with City Sightseeing Pty Ltd, trading as Big Bus Tours (Big Bus Tours).

• [2] Big Bus Tours operates a tourist sightseeing bus service in Sydney, New South Wales, providing open-top, double-deck bus tours. The business employs approximately 34 staff members and is based at Banksmeadow. Ms Pamela Staines is the General Manager.

• [3] Mr Mitchell was employed by Big Bus Tours as a bus driver. Mr Mitchell was dismissed following a motor vehicle accident on 6 November 2024, which damaged a company bus.

• [4] I have found that there was a valid reason for the dismissal based upon Mr Mitchell's conduct in operating the bus unsafely and his recent driving record. Although I have found that there were aspects of the termination that were procedurally unfair, I believe that these matters would not have affected the outcome. I have concluded that Mr Mitchell was not unfairly dismissed, and I have dismissed the application.

• [5] As there are contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. After taking into account the views of Mr Mitchell and Big Bus Tours, I considered it appropriate to hold a conference pursuant to s.398 of the FW Act.

• [6] At the conference, Mr Mitchell represented himself. Big Bus Tours was represented by Mr Andrew O'Brien, Lawyer, who I granted permission to appear pursuant to s.596(2) of the FW Act, as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter and because Big Bus Tours was unable to represent itself effectively as it does not employ human resources or legal personnel.

• [7] Mr Mitchell filed submissions in the Commission on 18 January 2025 and submissions in reply on 30 January 2025. Big Bus Tours filed submissions in the Commission on 28 January 2025. Mr Mitchell gave evidence on his own behalf and Ms Staines gave evidence on behalf of Big Bus Tours.

• [8] I have considered the submissions made by the parties and all of the evidence before me in my determination of this matter and the conclusions I have reached.

• [9] Mr Mitchell was employed by Big Bus Tours from 24 November 2003 to 7 November 2024. He was usually rostered from Monday to Friday for 38 hours per week.

• [10] Mr Mitchell was initially employed to clean buses and assist the controller. Since then, he has held numerous positions including ticket seller, controller, operations supervisor, and bus driver, with his most recent role being a bus driver.

• [11] Ms Staines has worked with Mr Mitchell since her employment commenced in 2011 as the Marketing Manager. Ms Staines became Acting General Manager of Big Bus Tours in September 2020 and was promoted to General Manager in August 2022.

• [12] Mr Mitchell was involved in an accident which caused damage to the windscreen of a bus he was driving on 6 November 2024. The other vehicle involved in the accident was undamaged. The accident occurred in the morning before Mr Mitchell had collected any passengers. As such, Mr Mitchell was the only person in the bus when the accident occurred.

• [13] Ms Staines' evidence was that the accident was inconvenient and costly. Big Bus Tours was approaching its high season and needed all of its vehicles on the road. The bus was off the road for 16 days. The windscreen was costly to replace and had to be shipped from China. Ms Staines was also concerned about safety and reputational damage. She was concerned that Mr Mitchell was driving dangerously in circumstances where he would usually be transporting 80 passengers, whose safety Big Bus Tours is responsible for. Further, the bus has the company name on it and is therefore like a giant billboard, so if dangerous driving is witnessed by the public, they can readily ascertain that a Big Bus Tours employee is responsible.

• [14] Mr Mitchell stated that he had a few accidents over the years but still had a 'good driving record'. On the day the accident had occurred, he was taken off the road and returned to the depot before being sent home. This had never happened before, and it gave Mr Mitchell the impression that his employment would be terminated.

• [15] When he returned to the depot, Mr Mitchell was required to fill out insurance documents and an 'Occurrence report'. Mr Mitchell described the incident as follows in the Occurrence report that he submitted:

I was waiting at the traffic lights at intersection of Harrington and Essex Sts when the car in front started to move. I followed and as I was entering the intersection, a brown coloured 4WD on my left cut across in front of me without indicating. I gave a honk on the horn and the driver stuck his finger up out the window and I tooted the horn again. The driver started to brake every now and then as we continued along Harrington St.

He started driving slowly and braking so I flashed the headlights and ushered him to keep moving and he braked again. I had gotten too close and tapped his rear spare wheel cover with the window wipers causing the windscreen on the bus to crack. I went to find a spot to pull over but the other driver kept going and did not stop to exchange details. I did not notice any damage to the car.

• [16] Ms Staines said that when Mr Mitchell returned to the depot, she said words to the following effect to him:

I have to investigate the collision and review the CCTV footage. I am going to send you home and would like you to come back tomorrow morning.

I don't want to lose my job. I can work on the street.

• [18] Ms Staines said she then reviewed the CCTV footage, the Occurrence report and the insurance documents completed by Mr Mitchell.

• [19] On 7 November 2024, Mr Mitchell returned to the depot. Ms Staines met with Mr Mitchell and read out a pre-prepared termination letter and provided him with a copy. Ms Staines asked Mr Mitchell if he had any questions and Mr Mitchell said he did not.

• [20] The letter of termination relevantly provided:

On 6 November 2024 you were involved in a motor vehicle accident with a company vehicle (redacted) during which, the front windscreen of the bus was badly damaged and will require replacement. This collision occurred on Harrington Street, travelling in a northbound direction approximately 9.15 hours and involved a single vehicle (Toyota) also travelling northbound and ahead of your bus. After this collision, you were requested to return to the depot and were stood down from your driving duties until I had completed my investigation which included interviewing you and viewing the CCTV footage of the collision with a Toyota Prada.

This collision, had the police attended the scene, would have resulted in you being charged with Negligent Driving not occasioning GBH or Death.

Your actions and involvement in this collision are viewed very seriously by Big Bus Tours and as such we are terminating your employment pursuant to Clause 40 subsection (f)and (g) of your employment contract.

40. We can terminate your employment without notice if you engage in serious or willful misconduct including, but not limited to where;

(f) you engage in dangerous, reckless or unsafe conduct:

(g) you fail to exercise due care with Company provided equipment.

Furthermore, your driving history over the last 8 months of 2024 has included seven other incidents involving a company vehicle - four of which were at fault, three at no fault but all preventable.

Based on your collision on the 6 November, your poor driving record over an extended period you are now considered a serious risk, according to our vehicle insurer and to Big Bus Sydney.

• [21] As noted in the letter of termination, Mr Mitchell's driving history over the previous eight months included seven accidents which involved a company-owned bus. Four of the seven accidents were at-fault collisions. Mr Mitchell agreed that he had these accidents and said that as a driver being in traffic all the time, it was more likely that he would have accidents. Ms Staines agreed that if a person is on the road more, the chances of them having accidents increases but pointed out that Mr Mitchell is a professional driver and that some of Big Bus Tours' drivers rarely have accidents. Insurance documents produced by Ms Staines showed that Mr Mitchell was involved in a greater number of accidents compared to other drivers employed by Big Bus Tours.

• [22] While explaining Mr Mitchell's conduct which led to the accident, Ms Staines said that Mr Mitchell gets annoyed if other drivers try to overtake him, and that he is more inclined to speed up in these circumstances.

• [23] Mr Mitchell stated that he did some aggressive driving many years ago which got him into trouble and led him to stop driving and start working in the office. However, Mr Mitchell claims that he has not been aggressive since returning to his driving duties.

• [24] Mr Mitchell claims that he has been 'targeted' as he has worked for Big Bus Tours for many years and has a friendship with the previous owner and general manager, Mr Miles Millington-Wallace, who sold the business to the current owner in 2016 and stayed on as manager until 2017. When Mr Millington-Wallace left Big Bus Tours due to health reasons, Mr Mitchell felt that he was not being treated fairly by new management. Consequently, he gave up his position as 'operations supervisor' and requested to go back to driving which he enjoyed. Big Bus Tours denied that Mr Mitchell was targeted due to his years of service and his friendship with Mr Millington-Wallace and noted that nine current employees also worked under Mr Millington-Wallace.

• [25] Mr Mitchell said that when he relinquished his operations supervisor role and returned to driving, he was eventually put on what he believes to be a 'punishment roster', in that he was only rostered from Monday to Friday, resulting in him losing the benefits of weekend penalties introduced by the new owners. Mr Mitchell said that his wages were cut after staff ceased being covered by an enterprise agreement, which provided commissions and bonuses. Mr Mitchell said that staff were told they would be better off being covered by the Award because of double time and higher rates on weekends and public holidays, but he was prevented from working on these days. Mr Mitchell said he went from being comfortable to being in debt which resulted in him developing depression.

• [26] Ms Staines said that in or around April 2024, after receiving a number of complaints about Mr Mitchell's aggressive behaviour from both fellow employees and customers, Ms Staines decided to monitor Mr Mitchell's employment more closely. Mr Mitchell was not offered weekend work so he could be more closely supervised by management during the week. This was not for the purpose of punishing Mr Mitchell, but rather to better supervise his employment. Ms Staines explained that the enterprise agreement which applied to Mr Mitchell from 2009 was terminated by the Commission on 20 August 2020. Mr Mitchell entered into a contract of employment with Big Bus Tours on 15 June 2020.

• [27] Mr Mitchell said during the conference that he was aware of the complaints and that Ms Staines had raised these with him. He denied that he was aggressive and said that he was direct and blunt.

• [28] Ms Staines said that she had a long working relationship with Mr Mitchell and that they aways treated each other with respect. However, as a driver, and on the street when talking to tourists and other members of the public, Mr Mitchell had been very aggressive and sometimes swore. Ms Staines said, 'it's like he can't help himself.' Ms Staines said that she brought Mr Mitchell into her office on several occasions to counsel him and she encouraged him to improve his behaviour.

• [29] Ms Staines said that during Mr Mitchell's employment, he was charged and convicted of a drink driving offence which saw his drivers' licence disqualified for three months. During the period of his driving disqualification, Mr Mitchell was given non-driving duties at the depot so that his employment could be maintained.

• [30] Ms Staines said that Big Bus Tours paid for Mr Mitchell to attend the Bus Operators Accreditation Scheme (BOAS) course in 2015, and that Mr Mitchell failed the exam four times, so he was unable to obtain BOAS accreditation. Ms Staines explained that the BOAS accreditation and a positive probity check would have given Mr Mitchell the opportunity to be added to the Designated Managers List with Big Bus Tours' accreditation with Transport for NSW. Ms Staines said that it was her understanding and personal observation that Mr Mitchell felt considerable pressure in completing duties in the operations supervisor role and he left on his own accord to continue his employment in a driving role.

• [31] Mr Mitchell said that he wants compensation because he intended to stay working for Big Bus Tours until retirement, as this was the only job he loved. It was Mr Mitchell's 'forever job' which is why he refused to resign when he knew that this is what management wanted.

• [32] Ms Staines said that Mr Mitchell's 'forever' job was conditional upon Mr Mitchell complying with the safe driving of a passenger transport vehicle and following the rules and protocols of Big Bus Tours. Ms Staines said that Mr Mitchell did not comply with these requirements on a consistent basis and that he had a long-documented history of anger management issues with fellow employees, passengers, members of the general public and other road users as well as a history of dangerous driving.

• [33] Mr Mitchell stated that during the Covid-19 pandemic, he had heard rumours that he would be dismissed. However, due to illness, this did not occur. Ms Staines explained that Big Bus Tours was forced to temporarily cease operations in March 2020 due to the pandemic and at that time, there were approximately 30 drivers employed. Ms Staines said that Mr Mitchell was one of six drivers who had their employment maintained and received JobKeeper payments. In the conference, Mr Mitchell confirmed that this was the case.

• [34] Mr Mitchell stated that he has previously received a written warning and disciplinary action for discussing the termination of another driver online in a social media thread with Mr Millington-Wallace.

• [35] Mr Mitchell claims that he started experiencing depression because of the changes within Big Bus Tours and its treatment towards him over the past few years. He has started medication for his depression which he asserts has recently been increased.

When can the Commission order a remedy for unfair dismissal?

• [36] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that Mr Mitchell was protected from unfair dismissal at the time of being dismissed; and

• [37] Both limbs must be satisfied. I am therefore required to consider whether Mr Mitchell was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr Mitchell was so protected, whether Mr Mitchell has been unfairly dismissed.

• [38] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

• [39] A threshold issue to determine is whether Mr Mitchell has been dismissed from his employment.

• [40] There was no dispute, and I find that Mr Mitchell's employment with Big Bus Tours was terminated at the initiative of Big Bus Tours. I am therefore satisfied that Mr Mitchell has been dismissed within the meaning of s.385 of the FW Act.

• [41] Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

• [43] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

• [44] Both parties submitted that the termination took effect on 7 November 2024. On 27 November 2024, Mr Mitchell filed an unfair dismissal application with the Commission. I am therefore satisfied that the application was made within the period required in s.394(2).

• [45] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or his employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

• [46] It was not in dispute, and I find, that at the time of dismissal, Mr Mitchell completed at least the minimum period of employment with Big Bus Tours, and that he was covered by the Passenger Vehicle Transportation Award 2020.

• [47] I am therefore satisfied that, at the time of dismissal, Mr Mitchell was a person protected from unfair dismissal.

• [48] It was not in dispute, and I find, that Mr Mitchell's dismissal was not a case of genuine redundancy and that the Small Business Fair Dismissal Code does not apply.

• [49] Having considered each of the initial matters, I am required to consider the merits of the application.

Was the dismissal harsh, unjust or unreasonable?

• [50] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

• [51] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[1]

• [52] I set out my consideration of each of these criteria below.

Was there a valid reason for the dismissal related to Mr Mitchell's capacity or conduct?

• [53] In order for there to be a valid reason, the reason for the dismissal should be 'sound, defensible or well founded'[2] and should not be 'capricious, fanciful, spiteful or prejudiced.'[3] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[4]

• [54] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[5] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[6]

• [55] For the purposes of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee to establish that there was a valid reason for the employee's dismissal.[7]

• [56] Big Bus Tours contends that Mr Mitchell was dismissed for engaging in dangerous, reckless or unsafe conduct and that he did not take reasonable care when engaging with company provided equipment, specifically an open-top, double-deck, 3 axle bus. CCTV footage of the incident which occurred on 6 November 2024, shows Mr Mitchell had engaged in dangerous driving while driving northbound on Harrington Street in the Rocks, which is typically considered to be a busy pedestrian area. While driving the 80-seat sightseeing bus, Mr Micthell repeatedly followed a passenger vehicle too closely until he drove into the back of the passenger vehicle.

• [57] Big Bus Tours submits that under clause 40 of Mr Mitchell's contract of employment, Big Bus Tours can terminate his employment without notice for the following reasons:

• You engage in dangerous, reckless or unsafe conduct.
• You fail to exercise due care with company provided equipment.
• You threaten, or abuse or assault another person while at work.
• A vehicle is damaged as a result of wilful or negligent conduct by you.
• You engage in conduct which has or is likely to impact adversely on the reputation of the Company.
• Your actions cause or pose a serious health and safety risk to yourself or another person.

• [58] Big Bus Tours submits that Mr Mitchell's actions and behaviour on 6 November 2024, met all of the criteria for summary dismissal. In addition to Mr Mitchell's contract of employment, Big Bus Tours relied on regulation 1.07(2) of the Fair Work Regulations 2009 (Cth) which provides that serious misconduct includes the following conduct of an employee:

(a) wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer's business

• [59] Big Bus Tours submits that Mr Mitchell's conduct constitutes 'serious misconduct', as Mr Mitchell was driving a heavy passenger vehicle and although he had no passengers, his actions endangered himself, other road users and pedestrians.

• [60] The termination letter also notes that based on the collision on 6 November 2024 and Mr Mitchell's poor driving record over an extended period, Mr Mitchell is now considered a serious risk, according to Big Bus Tours' vehicle insurer.

• [61] On the date of the incident, Big Bus Tours suspended Mr Mitchell's employment. On the following day, Mr Mitchell was invited to return to the workplace where he appeared to accept termination.

• [62] Mr Mitchell did not make any submissions in relation to this matter.

• [63] The CCTV footage of the accident was played during the conference, and Mr Mitchell was provided with an opportunity to explain what had occurred. It was clear from the footage that the driver of the other vehicle cut across in front of the bus that Mr Mitchell was driving and that the driver then engaged in brake checking. I believe that the other driver's actions were unsafe and unreasonable and that it is unlikely that the accident would have occurred if the other driver had not conducted themselves in this way. However, as the experienced driver of a double decker bus, Mr Mitchell was required to maintain a safe distance behind the other vehicle. Mr Mitchell was aware that the other driver was engaging in brake checking, however, he did not maintain this distance and then collided with the rear of the vehicle.

• [64] Mr Mitchell did not deliberately collide with the other vehicle. If this was the only accident Mr Mitchell had ever been involved in, or if he had an excellent driving record, the accident could have been explained by lack of judgement or a lapse in concentration. However, Mr Mitchell's driving record was poor compared to other drivers employed by Big Bus Tours. I accept Ms Staines' evidence that Mr Mitchell's actions in failing to exercise care when driving the vehicle created a risk both to health and safety and to Big Bus Tours' reputation as well as financial loss and inconvenience as a result of the bus being off the road for 16 days. I also accept that in engaging in such conduct, Mr Mitchell was in breach of his contract of employment. I therefore find Mr Mitchell's conduct in colliding with another vehicle together with his poor driving record was a valid reason for the dismissal.
• [65] On the evidence before me there is no basis for me to conclude that the dismissal was based on any reason other than the accident on 6 November 2024 and Mr Mitchell's driving record. Mr Mitchell did not engage with or respond to the reasons for the dismissal advanced by Big Bus Tours. Mr Mitchell's claims that he was 'targeted' due to his friendship with Mr Millington-Wallace is not supported by any evidence before me.

• [66] Proper consideration of s.387(b) requires a finding to be made as to whether Mr Mitchell 'was notified of that reason'. Contextually, the reference to 'that reason' is the valid reason found to exist under s.387(a).[8]

• [67] Having regard to the evidence before me, I find that Mr Mitchell was notified of the reason for dismissal by Ms Staines at the meeting on 7 November 2024 and by letter dated 7 November 2024.

Was Mr Mitchell given an opportunity to respond to any reason related to his capacity or conduct?

• [68] Ms Staines decided to terminate Mr Mitchell's employment after reviewing the insurance document and Occurrence report completed by Mr Mitchell and watching the CCTV footage of the accident. Although Ms Staines was able to ascertain the circumstances surrounding the accident and Mr Mitchell's version of events from reviewing this material, Ms Staines did not specifically put to Mr Mitchell that he was in breach of his contract of employment or that he had engaged in serious misconduct prior to the termination. Further, although Mr Mitchell expressed concern to Ms Staines that he would be dismissed when he returned to the depot after the accident on 6 November 2024, Ms Staines did not put Mr Mitchell on notice after her investigation that he was at risk of being dismissed or provide him with an opportunity to show why he should not be dismissed. Having regard to all of these matters, I find that Mr Mitchell was not given an opportunity to respond to the reason for termination.

Did Big Bus Tours unreasonably refuse to allow Mr Mitchell to have a support person present to assist at discussions relating to the dismissal?

• [69] There were no discussions relating to the dismissal before it occurred, so there was no opportunity for Mr Mitchell to have a support person in relation to the dismissal.

Was Mr Mitchell warned about unsatisfactory performance before the dismissal?

• [70] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of Big Bus Tours' enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [71] There is no evidence in relation to this matter and the parties did not make any submissions about this matter.

To what degree would the absence of dedicated human resource management specialists or expertise in Big Bus Tours' enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [72] There is no evidence in relation to this matter and the parties did not make any submissions about this matter.

• [73] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [74] It has long been established that the effects of dismissal on the personal or economic situation of the dismissed employee may be taken into consideration under s.387(h) of the FW Act.[9]

• [75] An employee's long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.[10]

• [76] Although Mr Mitchell did not make any submissions in relation to this matter, I have taken into account Mr Mitchell's lengthy period of service and that Mr Mitchell suffered economic loss as a result of the dismissal. In this regard, I note that Mr Mitchell was unemployed for four weeks after the termination and that he is now employed in a casual role. A significant part of Mr Mitchell's claim appears to be in relation to his pay being reduced as a result of no longer being rostered to work on weekends and public holidays. However, this is not relevant to my consideration as to whether Mr Mitchell's dismissal was unfair.

• [77] Although Ms Staines did not consider any previous warnings issued to Mr Mitchell when she decided to dismiss Mr Mitchell, these warnings were provided to the Commission as part of the material that Big Bus Tours relied upon in the proceedings and are relevant to whether Mr Mitchell had a satisfactory work performance or history.

• [78] There was a very large number of warnings (including three final warnings) issued to Mr Mitchell during the period from 2008 to 2012 in relation to complaints by police, staff and other motorists about Mr Mitchell's aggressive driving and behaviour. The letters recorded that Big Bus Tours had paid for professional anger management counselling for Mr Mitchell, that staff had resigned because of Mr Mitchell's behaviour and that Big Bus Tours had required him to change roles on at least two occasions as a way of managing his conduct.

• [79] During the hearing, Mr Mitchell accepted that he had received a lot of warnings from 2008 to 2012, however, he said that from 2012, he had changed his ways and did not let people get to him as much as he previously did before.

• [80] The documents produced by Big Bus Tours showed that there were no issues in relation to Mr Mitchell's conduct during the period from 2012 to 2020, apart from in 2014 when Mr Millington-Wallace issued a written warning to Mr Mitchell on behalf of Big Bus Tours in respect of speeding and 'road rage'. In 2020, Big Bus Tours wrote to Mr Mitchell expressing concerns in relation to a Facebook post he had written. In 2022, Big Bus Tours issued a written warning to Mr Mitchell following a complaint from another driver. In 2023, Big Bus Tours issued a letter of expectation to Mr Mitchell in relation to a preventable accident.

Is the Commission satisfied that the dismissal of Mr Mitchell was harsh, unjust or unreasonable?

• [81] I have made findings in relation to each matter specified in s.387 as relevant.

• [82] I must consider and give due weight to each of these matters as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[11]

• [83] This is a very unfortunate matter. Mr Mitchell was employed by Big Bus Tours for a lengthy period of time and clearly loved his job. For many years, Mr Mitchell engaged in inappropriate conduct which probably warranted dismissal, but Big Bus Tours maintained his employment. Although Big Bus Tours made it clear to Mr Mitchell that his conduct was unacceptable, its decision to keep him employed showed that it was compassionate to the circumstances which caused Mr Mitchell's poor behaviour. These circumstances were not the subject of any evidence and are not known to the Commission.

• [84] Big Bus Tours is to be commended for its longstanding support of Mr Mitchell. Big Bus Tours' concern for Mr Mitchell extended to keeping him employed after he lost his licence as a result of a drink driving incident and during the Covid-19 pandemic when most of his colleagues had lost their jobs.

• [85] Mr Mitchell's behaviour improved for a considerable period of time but then in April 2024, issues started re-emerging, with complaints being made about his behaviour and Mr Mitchell regularly having vehicle accidents. These issues culminated in the accident on 6 November 2024 which resulted in Mr Mitchell's dismissal.

• [86] Big Bus Tours did not give Mr Mitchell an opportunity to respond to the reason for termination. There were no discussions relating to the dismissal before it occurred, so there was no opportunity for Mr Mitchell to influence the decision or have a support person. These are usually matters which would weigh in favour of a finding that a dismissal was unfair. However, in this case, if Big Bus Tours had given Mr Mitchell an opportunity to respond to the reason for the termination and permitted Mr Mitchell to have a support person present to assist at discussions relating to the dismissal, this would not have changed the outcome.

• [87] I make this finding as there is no dispute between the parties that the accident occurred, and that Mr Mitchell was at fault. Mr Mitchell did not dispute the contentions of Big Bus Tours that the accident caused financial loss, inconvenience, a risk to health and safety and potential reputational damage for Big Bus Tours. Mr Mitchell was given the opportunity to file evidence and submissions in relation to his unfair dismissal application and present his case at the conference. Despite these opportunities, Mr Mitchell did not engage with the reasons for his dismissal and instead focused on his historical grievances. There is no indication that Mr Mitchell expressed any remorse or apologised for the incident. I believe that Mr Mitchell would have responded in a similar way if Big Bus Tours had given Mr Mitchell an opportunity to respond to the reason for the termination. In these circumstances, there is no basis for me to find that Big Bus Tours would not have proceeded with the dismissal if it had afforded him procedural fairness before making the decision to dismiss him.

• [88] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Mitchell was not harsh, unjust or unreasonable because:
  • there was a valid reason for the dismissal related to Mr Mitchell's conduct;
  • Mr Mitchell's conduct was serious in that it caused financial loss, inconvenience, a risk to health and safety and potential reputational damage for Big Bus Tours;
  • Mr Mitchell was notified of the valid reason; and
  • Given Mr Mitchell's history of behavioural and conduct issues, I cannot rule out the possibility that the conduct which led to the dismissal will be repeated.

• [89] These matters outweigh the lack of procedural fairness afforded to Mr Mitchell by Big Bus Tours and Mr Mitchell's lengthy period of service.

• [90] I am therefore satisfied that Mr Mitchell was not unfairly dismissed within the meaning of s.385 of the FW Act.

• [91] I have found that there was a valid reason for the dismissal based upon Mr Mitchell's conduct in operating the bus unsafely and his recent driving record. I have found that Big Bus Tours did not provide procedural fairness to Mr Mitchell but that if Mr Mitchell was given an opportunity to respond to the reason for the termination, this would not have changed the outcome.

• [92] Based upon these findings, I have concluded that the dismissal was not harsh, unjust or unreasonable. I dismiss the application.

[1] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[2] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[4] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[5] Edwards v Justice Giudice [1999] FCA 1836, [7].

[6] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[7] Annetta v Ansett Australia (2000) 98 IR 233, [9]-[10] cited in Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 [32]

[8] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[9] Ricegrowers Co-operative v Schliebs PR908351 (AIRCFB, Duncan SDP, Cartwright SDP, Larkin C, 31 August 2001), [26].

[10] Telstra Corporation v Streeter [2008] AIRCFB 15, [27].

[11] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

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