Ride-share Driver: “Independent contractor not employee” says Fair Work Commission
News 2 February 2018

Bus driver reinstated after being dismissed for a road rage accident

A bus driver dismissed because of his role in a serious road rage incident has had his employment reinstated after the Fair Work Commission ruled the dismissal to be harsh when considering all the circumstance including the employee’s length of service and otherwise unblemished employment record.

On 11 May 2016, the employee pulled out of a bus stop in front of a ute. The driver of the ute responded by honking the horn. The driver then put up his middle finger to the employee, who reciprocated the gesture. Later when the employee left a bus stop, the ute driver pulled up beside the bus and used foul language towards the employee.

A CCTV camera captured the driver driving in front of the bus causing the employee to break “suddenly to avoid collision”. The driver and the employee then left their vehicles. The employee approached the front of the ute and attempted to take a photo of the ute with his phone. A physical altercation then took place which involved: the driver swinging an arm at the employee, knocking the employee’s phone out of his hand; the employee throwing two punches at the driver (both missed); the driver punching the employee and knocking his sunglasses off his head; the employee hitting the side mirror and pulling it off the ute; and the employee being pushed to the ground.

The employee was suspended on pay and the incident was investigated. The investigation report was finalised and following a disciplinary process the employee’s employment was terminated.

The employee made an application for relief from unfair dismissal seeking reinstatement, an order for lost remuneration, and continuity of service. The employee considered his dismissal was harsh on account of his past good conduct and personal circumstances. The employee also considered it relevant that he had not been charged for the incident yet the police formed the view the other driver engaged in criminal conduct.

The employer attempted to defend the claim arguing the dismissal was not harsh due to a “number of factors, including the potentially serious consequences of his conduct for the reputation of [the employer] and the effect this could have on the public”. The employer also considered the dismissal was not harsh on account they had “lost trust and confidence in [the employee] to act appropriately in further conflict, adding that reinstatement was therefore not appropriate”. The employer went on to argue “they must be confident that bus drivers are able to make, with limited or no physical supervision, what are often quick decisions to defuse and avoid conflict in order to protect the safety of passengers, members of the public and themselves”.

It was noted the employee attended training in 2008 and had met the competencies for dealing with conflict and stress. The employer argued the employee had failed to deescalate the situation.  The employer considered the employee could have remained on the bus, contacted their communications centre by radio and if needed, spoken to the other driver through the window.

The Commissioner considered the applicable enterprise agreement and legislation and concluded the employee’s conduct was consistent with the definition of misconduct. The Commission was satisfied there was a valid reason for dismissal.

Whilst there was a valid reason for the dismissal, the Commissioner considered a number of factors including: the CCTV footage indicated the employee was not the instigator of the incident or the physical altercation; the employee acknowledged his conduct was inappropriate; and the employee’s otherwise blemish free eight and half years’ service.

Based on all the circumstances surrounding the incident and the employee’s length of service and employment record, the Commissioner considered the dismissal was disproportionate and deemed the dismissal harsh and therefore unfair.

The employer was ordered to reinstate the employee.  The Commission considered the working relationship may be “bruised” but was not beyond repair.  The Commission also made an order to maintain the employee’s continuous service. However, the Commission considered the employee’s conduct did contribute to the incident and as such declined to require the employer to pay any lost remuneration.

In our Responding to Fair Work Commission Claims experienced consultants will share some of their secrets and experience to help you understand the process, from initial response to appeals process. Lean more about the types of claims the Fair Work Commission deals with and how to put your best foot forward to defend your business and keep costs down.

Written by Laura Quinlan

Fair Work Commission Decision [2017] FWC 6167

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