A recent unfair dismissal case in the Fair Work Commission (the “FWC”) found that an employee who had breached a workplace policy was not dismissed unfairly. The employee argued that his breach of the workplace policy was justified due to a perceived safety risk. The case serves as a reminder about the importance of implementing effective workplace policies as not all workplace policies will be considered “reasonable” before the FWC.

The facts

The FWC case involved a bus driver who failed to follow the Transit (NSW) Services’ (“Transit”) workplace policy as he perceived there was a safety risk. The driver refused the entry of three unaccompanied children on his bus because they had no money for fares. After observing one child concealing a metal rod (about the size of a pen) in his pocket, the driver told the children they needed an adult to accompany them and suggested other means to get to their intended location. He also threatened to call the police after some back-and-forth conversation. As the driver closed the bus doors, one of the children launched the metal rod, striking the driver’s side window.

The driver was dismissed due to serious misconduct. Transit claimed the driver breached the “leave no child behind” policy (the “Policy”) which was based on the principle of prioritising child safety. The Policy stated that “it is mandatory that bus drivers never leave a child behind under any circumstances regardless of whether they are able to pay for a fare or not”. Part of Transit’s Code of Conduct also stated that bus drivers should never act “in a manner that may be perceived as aggressive, intimidating or rude” and “never put children in a situation where they are at risk of harm”.

Transit explained that the bus driver received training about expected conduct as a bus driver, and training was refreshed annually. However, the driver acted in a manner which escalated the situation and failed to meet the professional standards expected of bus drivers, that is, his inappropriate conduct caused one of the children to become agitated and throw the rod.

In response, the driver claimed he acted out of fear for his own health and safety. He was concerned about the metal rod and foresaw a risk that it could be used as a weapon. He also felt his safety was at risk as there were no other adult passengers onboard. The driver submitted that the Policy was not lawful or reasonable where it endangered an employee’s life or health, or in circumstances which the employee reasonably believed their life or health could be in danger.

In considering whether the bus driver had been unfairly dismissed, the FWC assessed whether there was a valid reason for dismissal. The FWC was required to consider the driver’s argument that the Policy was unreasonable as part of this test.

After reviewing the submissions and CCTV evidence of the incident, the FWC found the driver’s failure to allow the children on the bus was a clear breach of the Policy and therefore a breach of a lawful and reasonable direction. The FWC was satisfied Transit had a valid reason to dismiss the driver.

The FWC noted the gravity of leaving the children was substantial and summary dismissal was justified. The Transport Workers’ Union is considering appealing the FWC decision, arguing that the Policy is flawed.

How does the FWC evaluate the “reasonableness” of a policy?

The FWC commented that it was not up to them to determine how Transit should organise its enterprise but noted that the Policy was indeed reasonable. In assessing the reasonableness of a policy, the FWC gave an important reminder that the following factors will be considered:

• a policy will be reasonable if a reasonable employer, in the position of the actual employer and acting reasonably, could have adopted the policy (that is, a policy will only be unreasonable if no reasonable employer could have adopted it);
• a policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate;
• reasonableness will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship; and
• reasonableness is a question of fact and balance, rather than whether a “better” direction may exist.

Key takeaways

This case demonstrates that employers need to implement effective workplace policies within an organisation. This means employers should:

• consult with all relevant stakeholders (especially employees) prior to implementing policies;
• ensure all workplace policies (and updates to the policies) are brought to the attention of employees;
• ensure workplace policies are easily accessible to employees (for example, copies of workplace policies are made available on a company’s intranet); and
• provide training on procedures and policies to all staff and annual refresher courses.

Kirryn West James, Director and Yanessa Yol, Graduate Associate