Summary
A passenger who refused to pay the fare, sat in a seat reserved for disabled people, and wore a face mask under his chin was implored by a bus driver in the Gold Coast to wear his mask properly. The passenger refused and said, “F-ck off, Karen” to the driver. The driver asked the passenger to get off but he refused.
The driver used her smart watch to contact the bus company’s control room and to call the police. The driver then asked all the other passengers to leave the bus as the driver was going to wait for the police to arrive to make the passenger get off the bus. The driver was sacked because according to the employer, the bus driver breached the company policy against enforcing the mask mandate and the rule against using her mobile phone whilst at work.
Pleading with a passenger to wear their mask properly is not “enforcement” of the mask mandate, and cannot be a valid reason for termination
A bus driver, aged 55, began working for a transport company on 29 April 2019. On 16 September 2021, a young adult male passenger rode the bus without paying the fare. He occupied the seat reserved for disabled passengers and wore his face mask on his chin.
Difficult passenger on board
The driver asked the passenger to put on his mask properly. The passenger asked if wearing a mask was mandatory and when the driver said yes, the passenger claimed he had an exemption. The driver then asked him why he was wearing a mask anyway if he had an exemption. The passenger said he had just come from the hospital visiting a friend.
Driver asked for police assistance
The driver asked the passenger to put his mask on properly. To this, the passenger responded “F-ck off, Karen.” The driver then told the passenger to kindly get off at the next stop for verbally abusing her. But when they got to the bus stop, the passenger refused to get off. The driver contacted the Control Room and asked for police assistance. The passenger said he was a law student. In the meantime, the driver asked the passengers to get off the bus as she would wait for the police to arrive. The passenger caught another bus before the police arrived.
Previous warning against using smart watch while driving
The bus company had previously given the driver a verbal warning for having used her smart watch instead of her two-way radio to call the parent of a child passenger who got lost. The incident with the rude passenger and the previous incident was considered by the bus company as showing the driver’s deliberate violation of company rules.
Summary dismissal for breach of Code of Conduct
The driver was summarily dismissed from employment for trying to enforce the Queensland Government mask mandate in breach of the transport company’s policy. While the company adhered to the mask mandate and required all staff to comply with the mandate, the company believed that the enforcement of the mandatory mask policy was the responsibility of the Queensland Police and not the driver. The transport company found her behaviour to have been wilful or deliberate and totally inconsistent with her contract of employment. Her actions had the potential to cause serious risk to the health and safety of the passengers.
Was the driver’s dismissal harsh, unfair, or unreasonable?
Driver entitled to a safe workplace free from abuse
In her application for unfair dismissal, the driver said that she was entitled to a safe workplace and had the responsibility to take reasonable care of her own health and safety which was why she had implored with the passenger to wear properly the mask he was already wearing on his chin.
Overly strict implementation of policy regarding “enforcement” of the mask mandate
She denied that there was such a policy since the company’s notice said “Front line workers were not expected to undertake enforcement activities in relation to passengers not wearing a mask.” The passenger was already wearing a mask and the driver had merely “requested” the passenger to wear his face mask properly; she had not tried to “enforce” the mask mandate. She had not asked the passenger to leave the bus for not wearing a face mask.
No training given to driver
The transport company had never trained the driver or give instructions as to how they should handle a situation where the passenger refused to wear their mask properly. More importantly, not only was dismissal disproportionate to her violation, if it can be called a violation. The dismissal was also harsh since the driver was 55 years of age, she had been working for two years with the company and had planned on continuing to work for the bus company for at least 5 more years. Her dismissal as a result of misconduct stained her reputation and will greatly impact her struggle to obtain new employment. She sought reinstatement to her former position.
No breach of company Code of Conduct
The Fair Work Commission found that the driver did not breach the bus company’s Code of Conduct when she used her smart watch to contact the control room. The Code of Conduct specifically stated that drivers were not allowed to use their mobile phone or iPod while operating the vehicle. In this instance, the driver used her smart watch. Company rules must be specific and strictly applied against the employer who issued them.
Respondent failed to support its employees
Passengers are also required to pay the fare and not speak rudely to drivers. In dismissing the bus driver, the bus company did not respond appropriately to the verbal abuse that the driver received from the passenger which was clearly a breach of the passenger’s responsibility to act.
By dismissing the driver, the bus company condoned the bad behaviour of the passenger. The passenger claimed to have been a law student so that the bus company should have sent a copy of the CCTV footage to the Dean of Law at the local university for the passenger to be identified and for appropriate action to be taken against the passenger rather than dismissing the bus driver summarily. The bus company also breached its obligations to keep the bus driver safe from inappropriate behaviour whilst at work.
Driver pleaded with passenger, did not enforce the mask mandate
The FWC found that by pleading with the passenger to “please, please put your mask on” the driver had not engaged in any activity which could be identified as “enforcement.” Thus, the bus company had no valid reason to terminate the bus driver.
Dismissal was disproportionate to the alleged misconduct
Dismissal in this instance was disproportionate to the gravity of the alleged misconduct. This made the bus driver’s termination harsh and unreasonable. The bus did not contain any signage usually found in airports, retail shops or even church to wear masks. The bus company’s attitude was worrying considering the public health emergency then prevailing.
Driver was reinstated to former position and awarded backpay
The driver has had a long employment history having previously served in the Australian armed services. The actions of the driver show that she cared about the health and safety of the other passengers. The FWC found no reason why the driver should not be reinstated to her former role.
No basis for loss of trust and confidence, reinstatement was proper
There is no basis for the bus company’s claim that it had lost trust and confidence in the driver. Rather, evidence showed that the driver was proud of her job and loves it. To simply order compensation to be paid to her would be to impose a penalty on the bus driver that she did not deserve. The driver was ordered reinstated to her former role and for the continuity of service to be maintained. The bus company was also ordered to pay the bus driver her average wage based on the last 8 weeks of her employment.
Source:
Amie Logsdon v Surfside Business Pty Ltd [2022] FWC 392 (22 April 2022) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC//2022/392.html
