Bus driver unfairly sacked over crash at depot

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Bus driver unfairly sacked over crash at depot

The FWC has ruled the dismissal of a bus driver for serious misconduct was unfair. The employer failed to prove that a collision was due to deliberate unsafe conduct.

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A bus driver's dismissal for serious misconduct has been found to be unfair. The employer failed to prove the bus she was driving collided with a pole at the depot due to deliberate unsafe conduct. 

[Full text of this case: K v Transit Australia Pty Ltd [2015] FWC 4178 (2 October 2015)]

Failure to operate bus safely?


A woman employed as a bus driver and cleaner was moving a bus in a work yard at the end of January 2015. She narrowly missed hitting another employee and collided with a pole that supported an awning. She was stood down while the incident was investigated.

The employer called the driver to a meeting in late February 2015 so she could explain how the collision had occurred. She was shown CCTV footage of the collision. Her explanation was that she had tried to brake but the brakes had failed.

Three days later, the driver received a “show cause” letter, alleging she had failed to operate the bus in a safe manner with due care and attention. It said she had deliberately not used a seat belt and not checked the gauges, and she had focused on the mirrors instead of the front window.

As a result, she had driven too close to the awning, another employee and a parked bus. The employer claimed the brakes had been tested and found to be in good condition.

The driver responded by letter a few days later, claiming she had pumped the brakes several times in vain. She suggested the absence of a cover on the brake pedal could explain why the brakes had not engaged.

She said it had been her quick judgment and use of the handbrake that had prevented a more serious outcome. She had to use the mirrors because other buses had been parked so close. She had been in the job more than eight years, had never had an accident, never damaged a bus, and never been told to use a seat belt while moving buses in the yard.

The next day, the driver’s employment was terminated for serious misconduct. The employer had not accepted her explanations. She applied to the Fair Work Commission (Spencer C) for an unfair dismissal remedy.

Evidence


At the Fair Work Commission hearing, the driver submitted there was no connection between the collision and her not wearing a seat belt, and that it had not been common practice for drivers to wear seat belts at the depot.

The bus had been fully automatic, so if the air pressure had been insufficient for safe driving, warning lights would have flashed and the bus would not have moved, so failure to check gauges had not been an appropriate allegation either.

The driver had not been aware her employment was in jeopardy until late February 2015. English was her second language, and she had some difficulty following what was said at the meeting that month, especially when the employer discussed mechanical and testing issues.

She only had a short period in which to prepare her response to the allegations. She had been dismissed about 24 hours after delivering her letter, which suggested to her the employer had made its mind up before considering her response.

Not a valid reason


The Commission noted there had been very little room for buses to be manoeuvred in the work yard, yet there was no evidence the employer had undertaken risk assessment before or after the incident, and it had not developed a traffic management plan.

When she was employed, however, the driver had been assessed by a licensing instructor to be competent, and it had not been proved her conduct had been wilful or had caused the risk that resulted in the incident.

Consequently the commission was not satisfied the employer had a valid reason for the dismissal.

Other factors


There was no indication the employer had taken into account the driver’s long and unblemished work record, her limited opportunities for alternative employment, the layout of the work yard and the difficulty of moving buses in such a limited space, or the fact the driver had not been trained in a safety management policy or procedure for moving buses in the yard.

The commission found the dismissal was harsh, unjust and unreasonable.

The driver sought compensation rather than reinstatement as a remedy. The parties were asked to submit further material relevant for the assessment of compensation.

The bottom line: Where an employer alleges misconduct – such as unsafe work practice – there needs to be sufficient evidence presented to allow a conclusion that such misconduct took place.

K v Transit Australia Pty Ltd [2015] FWC 4178 (2 October 2015) 

See also: Bus driver dismissed over mobile phone use reinstated   

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