UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00620

DELIVERED : TUESday, 7 December 2021

FILE NO. : U 55 OF 2021

Applicant

AND

The JS Morley Family Trust & The Sermor Family Trust

Respondent

CatchWords : Unfair dismissal – Applicant was a casual employee – Applicant was dismissed – Dismissal was not unfair

Legislation : Industrial Relations Act 1979 (WA) s 29(1)(b)(i)          

Result : Application dismissed

Representation:

Applicant : On his own behalf

Respondent : Ms S Morley and Mr J Morley (as agents)

Cases referred to in reasons:

Metropolitan (Perth) Passenger Transport Trust v Erhard Gersdorf (1981) 61 WAIG 611;

Miles & ors t/a Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Robert Gallotti v Argyle Diamond Mines Pty Ltd Trading as Argyle Diamonds [2002] WAIRC 06828; (2002) 82 WAIG 3011

Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385

Swan Yacht Club (Inc) v Leanne Bramwell (1998) 78 WAIG 579

Reasons for Decision

1         Mr Wallis was employed by the respondent as a casual bus driver working six to seven days each week. He worked from October 2020 until 7 June 2021, when Mr Wallis says that he was unfairly dismissed for returning late to the bus depot.

2         The respondent says it did not dismiss Mr Wallis. Rather, it says ‘we told him that we were not sure that we had any work that he was able to do for our business.’ The respondent says that Mr Wallis had been given verbal warnings and a written warning and that it had tried to find him other work in the business that he could do but ‘it got to the point where Mr Wallis had exhausted all options of different kinds of jobs in our business that we had no choice but to tell Mr Wallis that we did not have any work that he was capable of doing.’

3         In essence, the respondent says that if it did dismiss Mr Wallis, his dismissal was not unfair because of Mr Wallis’ very poor performance.

What I must decide

4         I must decide whether Mr Wallis was dismissed. If he was dismissed, I must decide whether the respondent exercised its legal right to dismiss in a way that was so harsh or oppressive as to amount to an abuse of that right: Miles & ors t/a Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 (Undercliffe).

Was Mr Wallis dismissed?

5         Mr Wallis gave evidence that he was dismissed on the spot by Ms Morley on 7 June 2021, when he returned late to the bus depot from a job.

Events leading up to the end of Mr Wallis’ employment

Mr Wallis’ evidence

6         On 6 June 2021, Ms Morley sent Mr Wallis a text message that explained what he would be required to do on 7 June 2021. The relevant part of the message said:

1030 take coach 1gtc909 from obs to searippple village & bring back commuter 1geo944

Then in your commuter 1gmi843 1245 pick up darrin from 23 Bruce to b yard

7         The first job at Searipple Village was in Karratha, and the second job was in Point Samson. After the first job, Mr Wallis was supposed to return to the respondent’s bus depot in Wickham, before going on to do the second job in Point Samson.

8         On 7 June 2021, after completing the first job in Karratha, Mr Wallis said that he knew he was running late returning to the bus depot in Wickham.

9         Mr Wallis said that he was running late for two reasons. First, because he had offered to fill up the bus for the next driver and second because he was stuck behind a road train on his way back to the bus depot. Refuelling the bus took longer than usual because it was a public holiday. Mr Wallis also said that he had to do a pre-start check on the bus before leaving for Wickham which took time.

10      Mr Wallis gave evidence that he sent Ms Morley a text message to explain that he was stuck behind a road train and couldn’t get back any faster. Mr Wallis said he did this because he wanted to ‘minimise any damage, uh, in i.e., not picking up the passenger at the correct time’ and wanted to give Ms Morley an opportunity to make other arrangements for the next pickup he was scheduled to do.

11      Mr Wallis said he returned to the bus depot in Wickham at about 12pm.

12      In cross-examination, Mr Wallis agreed that he arrived at the first job in Karratha at 10:20am to do his pre-start check. He also agreed that the GPS tracker on the bus he was driving showed that he did not leave until 10:47am. Mr Wallis agreed that it is not normal to do a 27-minute pre-start check but said he ‘hadn’t driven that bus before’. He initially did not agree that a pre-start check usually takes around 10 minutes but then later conceded that it would take around 15 minutes to do a pre-start check. He said this time it took longer because he ‘had to go and get the keys’ and ‘swap out buses’. When the respondent asked again why it took 27 minutes, Mr Wallis said ‘I have no idea.’

Mr Morley’s evidence

13      Mr Morley said that the respondent gave Mr Wallis a number of jobs for him to do on 7 June, which was a public holiday. Referring to exhibit R19, which was GPS tracking information from the bus that Mr Wallis was driving on 7 June, Mr Morley gave evidence that Mr Wallis did two trips that morning. First he went to the Shell truck stop outside Karratha, and then he drove to Searipple Village where he was supposed to park the bus.

14      Mr Morley’s evidence is that the GPS tracking information shows that Mr Wallis did not start moving the bus until 10:47am, despite saying that he arrived at work at 10:20am. The GPS tracking information shows that Mr Wallis arrived at the Shell truck stop at 11:25am, which Mr Morley says ‘is about right’. Then, at 11:36am, the GPS tracking information shows that Mr Wallis left the Shell truck stop and drove to Searipple Village, where he arrived at 11:53am. At this point, the GPS tracking information stops because Mr Wallis changed buses at Searipple Village.

15      Mr Morley’s evidence was that at Searipple Village, it should have taken Mr Wallis five minutes to do the pre-start check, before leaving around 12 o’clock in order to get to the next job, which was 42 minutes away and scheduled for 12:45pm. Mr Morley said that although originally the respondent had wanted Mr Wallis to change buses on the way to the next job, ‘obviously if he’s running late, we’re – we’re able to just tell him to go straight to the person, pick him up and take him to work.’

Conversation in the bus yard

Mr Wallis’ evidence

16      Mr Wallis described the conversation he had with Ms Morley when he returned to the bus depot as follows:

Ms - Ms Morley was waiting in - in the car park for when I got back and, uh, she - she - she said to me that, uh, uh, "We can't have you missing runs and, uh, there's been other things," and - and when I asked her if I'd been terminated she said to me, uh, "We want our - we want our Dave's Transit stuff back, that includes the shirts with the logo on them and any other Dave's Transit stuff back," and when I asked her if I'd been dismissed she - she refused to answer.  But she told me that, uh, I'd be no longer required for the rest of the day and I, in fact never worked for Dave's again after that. Uh, and - and I had runs booked for the afternoon that I would've otherwise have done. So I was sacked on the spot and, um, I, of course by Ms Morley not - not stating that I'd had - in fact been terminated.

17      Mr Wallis also said that Ms Morley ‘didn’t believe [him]’ about the road train and ‘she said that [he’d] been shopping’.

18      The respondent put a series of documents to Mr Wallis in cross-examination. First, it put to Mr Wallis a series of text messages. These messages said:

Mon, 7 Jun, 10:25am

Mr Wallis

Hi Shelley is there any rush to bring commuter back from Karratha this morning thought I might do a bit of shopping while I’m in town

Ms Morley

No worries that’s ok

Mr Wallis

Thanks

Do you want me to fuel the bus in Karratha

Ms Morley

Yes please

Mr Wallis

Ok

Mon, 7 Jun, 12:08pm

Ms Morley [12:08pm]

Hi glenn

Just confirming you have Darrin in at 1245 from Samson to b yard this arvo as I just noticed  your commuter is still at obs ?

Mr Wallis [12:09pm]

Yep I’m in Karratha about to leave

Ms Morley [12:09pm]

Your [sic] going to be late then if you haven’t left already as it’s a 1245 pickup

Mr Wallis [12:10pm]

Leaving now

Mr Wallis [12:24pm]

I’m not gonna make it by [sic] 1245

19      The respondent asked Mr Wallis about the messages:

MORLEY, MR:   So would it be wrong of us to think that you went shopping?‑‑‑Well, it all depends if I - if I'd - if I'd relayed, ah, information to the contrary, I wouldn't expect you to call me a liar.

No, no, we're not calling you a liar.  We're just asking would it be expected that we thought you'd gone shopping?‑‑‑Ah, it could be assumed, but - but on explanation, I gave an explanation as to why I was late, and shopping wasn't part - wasn't part of it.  I in fact didn't even get to go shopping so ‑ ‑ ‑

EMMANUEL C:   So ‑ ‑ ‑

MORLEY, MR:   No probably - probably not.  But was the intention to go shopping, cos I notice that Shelley sent you a message saying that, ah - about how the commuter was still back at OBs, and that she was just checking that you knew that you were doing Darren at 12.45?‑‑‑Well - well, the fact ‑ ‑ ‑

So ‑ ‑ ‑?‑‑‑‑ ‑ ‑ of the matter is I didn't do any shopping.

So my question is that maybe after you've gone to Searipple to pick up the other bus, that your intention was to go from there to go shopping, which you would have been late for Darren.  It was only that when Shelley sent the message to say do you realise that we've got Darren at 12.45 that you realised that you were going to be late, and that was at 12.08, I think it was.  So you were going to be late from there anyway, because it takes 42 minutes if we're going in a direct line from Searipple to Darren's house.  So that would have left you getting to Darren's house at 12.50, would you agree?‑‑‑Ah, depending on the traffic, ah, you seem to be able to ‑ ‑ ‑

But the best case scenario would have been 12.50, which is ‑ ‑ ‑?‑‑‑But they have said ‑ ‑ ‑

‑ ‑ ‑ five minutes late?‑‑‑‑ ‑ ‑ 100 and - if you were driving a car at 110 kilometres an hour, that may in fact be true.

I'm not asking that.  I'm asking the best case scenario, when you realised that you were - you said, "Yep, I'm about to leave Karratha now," at 12.09.  That 42 minutes plus 12.09 is 12.51, which means that you're six minutes late for the pick up that we - that - it was the only real job that we intended for you to do in that three‑hour period.  Best case scenario, you would have been there at 12.51, is that correct?‑‑‑I - I - I'm sorry, I don't agree with your best case scenario because ‑ ‑ ‑

Just - just say you don't ‑ ‑ ‑

WALLIS, MR:   ‑ ‑ ‑ it's ‑ ‑ ‑

EMMANUEL C:   ‑ ‑ ‑ agree, and then you can deal with that in re‑examination.  If you don't agree, you don't ‑ ‑ ‑?‑‑‑Yeah ‑ ‑ ‑

‑ ‑ ‑ agree?‑‑‑‑ ‑ ‑ yeah, I don't agree.

Okay.

20      The Commission further explained the respondent’s question to Mr Wallis:

EMMANUEL C:   So is it - Mr Morley, is the point you're making that the text messages show that Mr Wallis hadn't left by ‑ ‑ ‑

MORLEY, MR:   Karratha.

EMMANUEL C:   ‑ ‑ ‑ 12.09, he was still in Karratha.  So he was ‑ ‑ ‑

MORLEY, MR:   Correct.

EMMANUEL C:   ‑ ‑ ‑ always going to be late, regardless of any road trains or anything else, or refuelling ‑ ‑ ‑

MORLEY, MR:   Correct, that's the point I'm making ‑ ‑ ‑

EMMANUEL C:   ‑ ‑ ‑ because it's ‑ ‑ ‑

MORLEY, MR:   ‑ ‑ ‑ yeah.

EMMANUEL C:   ‑ ‑ ‑ not possible to get back by 12.45.

MORLEY, MR:   That's the point I'm making.  He actually says:

"Leaving now" -

- at 12.10, so that would mean that he'd be there at 12.52.

EMMANUEL C:   Okay.

So Mr Wallis, what do you say to that?‑‑‑I would say that, ah - because I - I know the job that - that, um, Mr um, Oliver does, so that's the guy I was picking up.  He - he has to be at work on the hour, not - has to be ‑ ‑ ‑

EMMANUEL C:   No.  Mr ‑ ‑ ‑?‑‑‑‑ ‑ ‑ picked up, but he has ‑ ‑ ‑

Mr Wallis, what's been put to you ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ is quite express.  What's been put to you is you had to be there by 12.45, and it was not possible for you to be only leaving at 12.10 and still get there in time.  It was never going to be possible to get there in time because you left - you hadn't left until 12.10, do you agree with that?‑‑‑Well, no, no, no, no, I don't agree.

Okay.

Ms Morley’s evidence

21      Ms Morley gave evidence that at best, it takes 42 minutes to get from Searipple Village to Point Samson. When she realised that Mr Wallis’ bus was still in the yard at 12:08pm, she texted him to confirm his next job.

22      Ms Morley explained in evidence that the respondent must be on time for these jobs because they can be issued warnings by the site superintendents, and have their contract terminated if the lateness is regular.

23      When Mr Wallis returned to the bus depot, Ms Morley said that she said to him:

And back at OB's, I did explain to Glenn, which he's agreed with, that I didn't dismiss him.  I just said that I don't have any other work that I'm able to provide that you're going to be able to do.  Um, which, you know, we need people to be punctual, reliable and on time, and present well, in the proper PPE.  So all of those things - and not talk on mobile phones while driving a bus, um, because it's against the law.  And so I had no other work that I was able to offer Glenn.  And I wasn't confident, if I had have allowed him to finish the rest of the day doing those jobs, that he was going to be able to perform the duties on time and up to standards that we expect.

And why was that?  Why did you think that?‑‑‑Because there was a number of incidents that had happened leading up to that day, that proved that he wasn't able to provide the - provide the tasks that we were giving him.  And he tried multiple tasks throughout his time of, um, working for us, of offering him different tasks that we thought he would be able to do, that he still was unable to do.

So in your view, what did you mean by that?  Like, in terms of no other work and you not being confident that he could do the work.  Specifically, what were you concerned he wouldn't be able to do to the required standard?‑‑‑Pick up our passengers on time, which is very important, which we've had that example of the supervisor being picked up 10 minutes late, his shuttle runs being done incorrectly.  All of these.  You know, the rail run being done incorrectly and not on time.  Um, being late for Darren out here in Point Samson.  Being late to work.  Um, yeah, a - a lot of these tasks, that we were getting him to do the wharf work, dropping people off at the wharf and escorting them, not just leaving them and driving off.

24      Ms Morley said in cross-examination that she didn’t want to dismiss Mr Wallis. They have lots of work and limited numbers of bus drivers. But being reliable and on time is very important and they didn’t think Mr Wallis was capable of that after 7 June.

After the conversation in the bus yard

Mr Wallis’ evidence

25      Mr Wallis said that he understood he had been dismissed because the next day he received a text message from the Maritime Security Identification Certificate (MSIC) office that said: ‘Due to being no longer employed, return the MSIC card as per regulations to avoid penalties.’

26      Mr Wallis tendered a separation certificate. He said that on 7 June 2021, after he was dismissed, he asked Ms Morley to provide a separation certificate. He said that she told him: ‘As a casual I don’t have to give you nothing’.

27      Mr Wallis contacted his union, who in turn contacted Ms Morley about the separation certificate. Ms Morley then provided it.

28      Other documents that Mr Wallis tendered included timesheets and payslips. He said that these showed that he wasn’t paid for the remainder of the day on 7 June 2021. He said that the work had been allocated to him but he wasn’t paid for it. He confirmed this in cross-examination. He said this shows he was summarily dismissed, and that that means it must have been for serious misconduct. He says that he is not guilty of serious misconduct.

Mr Morley’s evidence

29      Mr Morley said that the respondent didn’t dismiss Mr Wallis. It said that the message he received about the MSIC card wasn’t because of something the respondent said. All the respondent does is tell MSIC administrators that Mr Wallis has no operational need for an MSIC card, which he didn’t because he had told the respondent that he didn’t want to work on the wharfs.

30      Mr Wallis put it to Mr Morley three times that the respondent must have told the MSIC administrators that Mr Wallis had been dismissed. Mr Morley denied it each time.

Ms Morley’s evidence

31      Ms Morley gave evidence that when Mr Wallis asked her for a separation certificate on 7 June, she said ‘well I don’t really have to give you anything’ because she had never heard of that document and she understood that Mr Wallis was asking her for something written confirming that he was dismissed, which she didn’t think he was. Ms Morley said two weeks later she got a call from Mr Wallis’ union representative who told her that she had to provide the separation certificate, so she did.

Consideration

32      A casual employee can be dismissed. Whether a particular casual employee was dismissed is a matter of fact in any given case: Swan Yacht Club (Inc) v Leanne Bramwell (1998) 78 WAIG 579; Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385 (Ryde-Eastwood). A dismissal involves being sent away or removed from office, employment or position: Metropolitan (Perth) Passenger Transport Trust v Erhard Gersdorf (1981) 61 WAIG 611; Robert Gallotti v Argyle Diamond Mines Pty Ltd Trading as Argyle Diamonds [2002] WAIRC 06828; (2002) 82 WAIG 3011 at [55] – [62].

33      The Full Bench in Ryde-Eastwood said ‘A casual employee deprived of employment from time-to-time according to a regular roster arrangement may well, in our view, reasonably be said to have had his services dispensed with – that constitutes a dismissal’ at 392 – 393.

34      While it cannot be said that Mr Wallis had a regular roster arrangement, the evidence shows that Mr Wallis regularly worked for the respondent for about 8 months.

35      I consider that the reason employment ended in this case was because the respondent dispensed with Mr Wallis’ services. Mr and Ms Morley decided that they had no further work for Mr Wallis to do, not because there was no work to be done, but because they concluded that his performance was so poor that he simply was not capable of doing the work. When Ms Morley spoke to Mr Wallis on 7 June and told him that there was no more work from him, in effect the respondent sent Mr Wallis away or removed him from his employment. I find the respondent dismissed Mr Wallis.

Was Mr Wallis’ dismissal unfair?

Previous misconduct

Mr Wallis’ evidence

36      Mr Wallis gave evidence that his performance was ‘at least as average as any other driver, no worse and probably no better’. When asked whether he was saying that there were no issues with his performance, he said: 

Not - no issues, there were some issues and I do not refute the fact that I did receive a written warning for, uh, using the telephone [while driving], uh, and - and I was - I deeply regretted that and I apologised for that and I made recommendations that that would never happen again and it didn't and - and any other, uh, any other warnings or any other issues that were raised to me were in fact acted upon by me to improve those issues.

Mr Morley’s evidence

37      In cross-examination, Mr Morley explained that one of the respondent’s major clients, Sodexo, specifically requested that the respondent not allocate Sodexo jobs to Mr Wallis. Mr Morley explained that despite Sodexo suggesting that respondent dismiss Mr Wallis, the respondent chose not to at that stage because ‘we don’t go off- off other people’s opinions of people’.

38      Mr Wallis put to Mr Morley that ‘any issues raised…were in fact improved upon’. Mr Morley disagreed.

Ms Morley’s Evidence

39      Ms Morley tendered a text message to her from Mr Wallis that said ‘I want to apologise to the way I spoke to you earlier. Don’t take it personally’. She said that Mr Wallis sent her this message following a conversation that they had on the phone, where Ms Morley had to ring Mr Wallis and ask him to return and collect some passengers he had left behind. She said during the phone call, he was rude and abrupt, which she says is shown by the apology he sent her by text.

Leaving passengers on the wharf

Mr Wallis’ evidence

40      In cross examination, Mr Wallis agreed that on one occasion, his job was to escort passengers on the wharf and see that they get on the vessel. However, Mr Wallis agreed that he took them to the gangway and then did not stay with them until the gangway operator arrived. He said this was because ‘there was no telling how long the gangway operator was – that was already booked was going to take to get there’.

41      The respondent put to Mr Wallis that he had been trained as part of holding the MSIC card and that ‘part of the MSIC training is to escort them to the gangway’. Mr Wallis did not agree.

Mr Morley’s evidence

42      Mr Morley gave evidence that Mr Wallis told them on 3 February that he did not want to work on the wharfs anymore. Mr Morley gave evidence that work on the wharfs is ‘a big amount of our work, and we require a lot of people to do that.  So we tried to make sure that we had other work that Glenn could do.’

Ms Morley’s evidence

43      Ms Morley gave evidence that despite Mr Wallis having received training in relation to holding an MSIC card, which included training about how he must escort passengers to the vessel, wait until the gangway operator comes and put them on the vessel before leaving, Mr Wallis left passengers on the wharf before the gangway operator arrived. Ms Morley said that the text messages in exhibit R16 show this:

Ms Morley

Ok was gangway all good on clb 6 for Sandeep?

Mr Wallis

I left them there I’ll check on the way back

Ms Morley

You are not allowed to do that

We need to be with them at all times as we are their escorts, we are to wait for the gangway  and see they get on the vessel, then do the next job

Let me know if they are not on when you get back please

Mr Wallis

They are not there

Using his mobile phone while driving

Mr Wallis’ evidence

44      In cross examination, Mr Wallis conceded that on 20 April 2021 Mr Morley saw Mr Wallis talking on his phone around 4:45 (the parties did not say whether it was in the morning or the evening) while driving the regular rail shuttle bus. Mr Wallis agreed that at 5 o’clock, he was still speaking on the phone in the same phone call. After being asked several times, Mr Wallis eventually conceded that it is not acceptable to drive a bus with passengers while speaking with a mobile phone to his ear. Mr Wallis accepted that he had made a mistake but maintained that he had the phone to his ear because he couldn’t hear what the person was saying on the handsfree kit and that he couldn’t phone that person back.

45      In cross-examination Mr Wallis agreed that he said to Mr Morley that it was a very important phone call, he had to take it, and there was nothing he could do about it. When asked whether he still thinks it is acceptable to take phone calls while driving, Mr Wallis said: ‘Well, you've got to - you've got to understand that there's hands-free kit now that make that, ah, quite acceptable.’

46      The parties agreed that Mr Morley gave Mr Wallis a written warning about this incident. The warning was tendered as exhibit R24.

Mr Morley’s evidence

47      Mr Morley explained that on 20 April, he noticed Mr Wallis driving while talking on his mobile phone. The next day, Mr Morley had a conversation with Mr Wallis about this. Mr Morley says that he explained to Mr Wallis that he can’t drive the respondent’s bus while talking on a mobile phone. He explained that it puts the respondent’s contract with Rio Tinto in jeopardy. It can cause an accident or injure passengers. Mr Morley said:

[Mr Wallis] says, "Oh, yeah, you caught me.  You caught me.  Blah, blah, blah.  Whatever.  Rah".  And he - he got extremely angry.  Told me that, ah, he had to take the phone call.  I said - I said to Glenn, "It doesn't matter what circumstance you're in.  You don't take a phone call while you're taking my passengers to and from site.  There is no excuse for doing that".  To which he yelled at me.  This is at 5 o'clock in the morning the next day.  He sat there screaming and yelling at me that I'm not listening to him and that he had to take the phone call and there was nothing he could do about it.  And I just kept explaining to Glenn, trying to defuse the situation, that no, there is no instance in this world where this is okay.

48      On 29 April, Mr Morley gave Mr Wallis a written warning about the incident on 20 April. Mr Morley said that at no point during the long discussion they had about the warning did Mr Wallis apologise for his behaviour. Mr Morley said he wrote on the warning ‘where performance has not improved over the designated performance period with the appropriate counselling, this could lead to possible separation of employment’. Mr Morley said that when he gave Mr Wallis the written warning he explained that if ‘we continue doing things outside of the rules, there will be no employment.’

49      In Mr Wallis’ cross-examination of Mr Morley about this issue, they had the following exchange:

WALLIS, MR:   Okay.  So when you, ah, delivered to me the written warning for using the phone while driving, ah, did I sign it immediately and hand it back to you?‑‑‑Correct, you did.

Yes.  Well, so I accepted full responsibility for my actions?‑‑‑Yeah, you can say that.

And - and I wasn't arguing that I wasn't doing it or anything.  I - I knew I'd done wrong and I accepted that.  Would you agree?‑‑‑Well, you knew you'd done wrong, but you still didn't accept that - well, I wouldn't say you had accepted that you'd done wrong, no.

Do - do you recall me saying to you that I'm sorry - well, I said, "I'm sorry I did it, and I promise you that it will never happen again".  Do you remember those words?‑‑‑I don't remember that, for that instance, Glenn.

Okay.  All right.  So moving away from that?‑‑‑You might have said that it won't happen again.  Yeah, I agree.  You might have said that it won't happen again.

Well - well - okay.  So more importantly, did it ever happen again?‑‑‑Not that I - not that I'm aware of.  I'm not in the bus with you, mate, so ‑ ‑ ‑

Okay?‑‑‑I did put cameras in the bus and you kept turning them around, so ‑ ‑ ‑

All right.  Okay.  

Not wearing proper footwear while driving

Mr Wallis’ evidence

50      In cross-examination, Mr Wallis agreed that on occasion he wore open footwear while driving the respondent’s buses. He also agreed that he had been inducted to work on Rio Tinto sites, and understood that the minimum footwear requirement on those sites is steel cap boots.

51      The respondent put to Mr Wallis that on 2 March 2021, Mr Wallis was wearing thongs in the coach bay at Karratha Airport when he was supposed to be on standby to drive a bus to take passengers to a Rio Tinto mine site. The respondent put to Mr Wallis that Mr Morley saw this, and had a conversation with Mr Wallis and said that he ‘was pretty disappointed’ that Mr Wallis was wearing thongs at the airport. Mr Morley said he told Mr Wallis that ‘it’s not acceptable to wear open footwear, at all, driving our buses’. Mr Wallis disagreed that he was supposed to take passengers to a Rio Tinto mine site on that day. He agreed that Mr Morley had that conversation with him, but said it was on 10 March not 2 March.

52      The respondent then put to Mr Wallis that on 10 March, Mr Morley saw Mr Wallis again wearing thongs while working and when Mr Morley asked Mr Wallis about it, Mr Wallis said ‘Oh you caught me’. Mr Wallis agreed with this. When the respondent asked Mr Wallis what he had been caught doing, the following exchange was had:

MORLEY, MR:   Wearing thongs ‑ ‑ ‑?‑‑‑Wearing - wearing open - open - open soled shoes - like, open-toed shoes.

EMMANUEL C:   Okay?‑‑‑Because - because I wasn't on site, I wasn't working on site, I was just working on the normal, public road.

MORLEY, MR:   But we've never, ever said that you can just wear open thongs (indistinct 11.49.36)?‑‑‑You never said that I couldn't.

Okay, but you've signed our - yeah, okay.  Um, so anyway, that job had changed that day.  We were just doing shuttle runs, but that day particularly, we changed the Austral run to do the shuttles, and then, take those guys out to site.

EMMANUEL C:   Which day are you talking about?

MORLEY, MR:   10 March, when I went and gave him - when I talked to Glenn - Glenn about the open ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ footwear.  So the job was to do two hours of shuttles before and take guys up to the mess, and then, at 5.15, pick those same guys up and take them out to a Rio Tinto site?‑‑‑That's correct.

And you were wearing open footwear?‑‑‑That's correct.

So you were going to go onto a Rio site wearing open footwear?‑‑‑No, I wasn't.

How were you going to change your footwear?‑‑‑Well, as you well know, I live less than one minute from the Rio - from the - the Wickham Village and the JM Building.  I was going to race home, get my shoes on, and then, take - take my steel caps on site.

But the job was a continuous job from, I think, 4 o'clock through to 6 o'clock or 6.15, so I don't ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ ‑ know how you were going to, um, do that, and why you would do that, when we're doing shuttles up till 5.15 and then, you're going to site.  So I would put it to you, Glenn, that you didn't - you weren't going to put your steel capped boots on at all, you were going to go onto site with your sandals, would that be correct?‑‑‑No, that wouldn't be correct, no.

But - so in what point - in what time could you go home and get your shoes on - which would take, what, five minutes, Glenn?‑‑‑No - no, less than a minute.  Like I said, I - I'm like - I've got to be 15 seconds, if you drive - if you're driving a bus from the village to my house.

I'll put this, were you fit for your job when you started that job that day ‑ ‑ ‑?‑‑‑Sorry ‑ ‑ ‑

‑ ‑ ‑ to go onsite?‑‑‑‑ ‑ ‑ what was the question?

Were you fit for work, to go on a site that day, at the start of that job, at 4 o'clock in the morning?‑‑‑Of course I was, I - I never was not fit for work.

Were you wearing correct PPE to go into a Rio Tinto site from the beginning of that shift that day?‑‑‑Well, that's - that's a bit of a trick question, really, because the job didn't begin on a Rio site.  I still had time to get home ‑ ‑ ‑

MORLEY, MS:   No (indistinct 11.52.53) ‑ ‑ ‑

MORLEY, MR:   (Indistinct 11.52.53) ‑ ‑ ‑?‑‑‑‑ ‑ ‑ and change my (indistinct 11.51.53), so it - you know, your tricky little question's going to have to be a little bit more, you know, open and honest, you know?

Commissioner, I guess the point ‑ ‑ ‑

EMMANUEL C:   No ‑ ‑ ‑

MORLEY, MR:   ‑ ‑ ‑ I'm making is ‑ ‑ ‑

EMMANUEL C:   ‑ ‑ ‑ Mr Morley ‑ ‑ ‑

MORLEY, MR:   ‑ ‑ ‑ it's a continuous ‑ ‑ ‑

EMMANUEL C:   ‑ ‑ ‑ is entitled to ask you that.  So he's saying, when you started the shift, were you dressed in PPE that would allow you to go onto site - that's his question, and your answer seems ‑ ‑ ‑?‑‑‑And the ‑ ‑ ‑

‑ ‑ ‑ to be, "No"?‑‑‑And the answer is no, and - and I've said that, I - I did have the - the open-toed shoes on.

All right.  And you've answered that.  Thank you.

Mr Morley’s evidence

53      Mr Morley gave evidence that on 2 March, the respondent was scheduled to be on standby for the Mesa A site. The respondent had instructed Mr Wallis to be at the airport, ready to take passengers to Mesa A in the event that a different bus broke down. Mr Morley said he went to the airport:

So I did notice Glenn at the airport.  And this is probably only just after - a couple of months after he'd left his previous employment, and he was talking to all the drivers there from his previous employment in his thongs.  And obviously, I - as the owner of the business, I wasn't too happy about it, because it obviously makes - paints our business in a bad light.  Everything up here is perception, and we want our business to be a - a strong business and a safe business, cos we partner with Rio Tinto a lot.  This wasn't really ‑ ‑ ‑

What did you just say?  It was a bad look?  Why was it a bad look?‑‑‑Ah, because Rio Tinto is a very safety‑focused company, very about - much about presentation and appearances.  And obviously, he's working for us, and most workplaces have a steel cap boot policy, which we do, as well.  So - or a - a closed‑in shoe policy, at least, so ‑ ‑ ‑

Okay?‑‑‑So obviously ‑ ‑ ‑

So had you communicated your expectations about footwear with him before?‑‑‑Yes, I believe so, when he first came on board with us.  And Glenn's been around the tracks long enough to know that when we're doing work for Rio Tinto, you don't wear thongs.

54      Mr Morley went on to say that he rang Mr Wallis that day and explained that he did not want to see Mr Wallis wearing thongs anymore. He said ‘it’s not acceptable to wear thongs in our business.’ Mr Morley said that Mr Wallis appeared to take his feedback on board.

55      On 10 March, Mr Morley went to do a blood alcohol test on Mr Wallis and found that he was again wearing thongs, and was scheduled to drive to a mine site where thongs are unacceptable footwear. Mr Morley said that this was during Mr Wallis’ shift which ran from 4am until 6:15am. He said:

The job entailed running them back and forth from a camping area - like, a camp area, a donga - where they - where they stay and sleep, to the mess where they eat.  Then, at 5.15 - so that's every five minutes.  You run back and forth, taking people down for their mess, and then taking them back to the camp if you need to.  At 5.15, part of that run was to pick them up from the - from the mess, after they'd had breakfast, and take them straight to site, to their workplace.  So at no time during that two and a half hours did we say that Glenn could just go home and get some boots on.  And you - you just probably wouldn't do it.  Um, you'd just go to work with your boots on and go to site.  So I did pick Glenn up, and that was about - oh, it was about 5.10, I reckon it was.  10 past five, when I'd got there, or 5 o'clock, I think it was.  And so he had 15 minutes to go and get some boots on and stuff like that, which I - I believe he did.  But obviously, that means that while he's going to get his boots on, he's not doing the shuttle runs back and forth.  So in my opinion, I don't think Glenn was going to put his shoes on at all, to be honest. 

56      Mr Morley said that on 10 March he told Mr Wallis that it’s not acceptable to wear open footwear on the respondent’s buses.

57      In cross-examination, Mr Wallis put to Mr Morley that on 2 March he said to Mr Morley that he had boots in the bus. Mr Morley agreed that Mr Wallis ‘might have’ said that.

Refusing work while being paid to work

Mr Wallis’ evidence

58      Exhibit R11 is a series of text messages between Ms Morley and Mr Wallis. The first message says:

Hi glenn

Are u able to please also do today 1800 Pick up Katie from Samson to 50 rosewood

59      Mr Wallis’ reply is next. It says:

Cooking my dinner

60      In relation to this text message, the respondent put the following points to Mr Wallis:

a. for ‘rail runs’, the respondent regularly paid Mr Wallis for a three-hour block from 4.30pm to 7.30pm:

b. on the day of the text messages, during the three-hour period for which Mr Wallis was being paid, the respondent texted Mr Wallis to ask him to do a further job;

c. Mr Wallis declined the job because he was cooking his dinner; and

d. this was the second time that this had happened.

61      Mr Wallis agreed with all of the above. The parties then had the following exchange:

Okay.  So I guess we've presented a few of your performance issues.  Now, before, you explained that you weren't any worse than anyone else in - in our workforce, do you believe, after I've gone through all these specific issues, that you were a good worker for us?‑‑‑Yes.

What - how do you come to that conclusion?‑‑‑Oh, I - how - how many hours a day was I working, about 17 or 18 hours every single day?

I don't think you were working for 17 or 18 hours, no?‑‑‑Well, from the time I started, sometimes 3.30 in the morning until I finished at sometimes 8 o'clock at night.

Did we make you work in between your blocks of three hours?‑‑‑It sounds like you wanted me to.

Sorry?‑‑‑It sounds like you wanted me to.

How - how's that?‑‑‑Well, ah, that, ah, you - that I was on-call for the entire time, like, it didn't matter what you were allocated work-wise, ah, you could call me anytime and make me go and work for you.

But you had a decision to either accept that work or not accept that work.  We're not talking about ‑ ‑ ‑?‑‑‑That's ‑ ‑ ‑

‑ ‑ ‑ the three hours ‑ ‑ ‑?‑‑‑‑ ‑ ‑ exactly right.

‑ ‑ ‑ we've already ‑ ‑ ‑?‑‑‑That - that ‑ ‑ ‑

We're not talking about the ‑ ‑ ‑?‑‑‑‑ ‑ ‑ is ‑ ‑ ‑

‑ ‑ ‑ three hours that we already paid you for, are you saying ‑ ‑ ‑?‑‑‑That's - it's - what you're saying is right, I had the - I had the opportunity to either decline or accept that extra work.

Yeah, but not within the hours that we were already paying you?‑‑‑Well, I disagree.

Well, I - I - I think we'll find that that's ‑ ‑ ‑

EMMANUEL C:   Okay.

MORLEY, MR:   ‑ ‑ ‑ a verdict the Commission will have a look at.

Anyway, that's - I guess, that's the evidence ‑ ‑ ‑

EMMANUEL C:   Okay.

MORLEY, MR:   ‑ ‑ ‑ we've got.

Mr Morley’s evidence

62      Mr Wallis cross-examined Mr Morley on this issue. Mr Morley agreed that the respondent had not given Mr Wallis jobs to do for the entire three-hour shift, but maintained that the respondent was paying Mr Wallis for the whole three hours so it expected that during those three hours, Mr Wallis be dedicated to driving the bus. Mr Wallis said ‘well that wasn’t communicated to me’ and suggested that what the respondent was saying was that Mr Wallis was expected to be on call at any time between the times he was working. The Commission explained to Mr Wallis that was not what the respondent was putting to him.

Ms Morley’s evidence

63      Ms Morley referred to exhibit R11. She said that multiple times, she would ask Mr Wallis to do a job during the three hour shift he was paid to work, and he would refuse. R11 is an example of that. The respondent’s expectation is that while a driver is being paid, that driver should be available to do extra jobs that come up during the paid shift.

Running late for shuttle services

Mr Wallis’ evidence

64      In cross-examination, the respondent put an email to Mr Wallis that it said demonstrated that Mr Wallis did not adhere to the scheduled timeframes for what it called ‘rail runs’. Mr Wallis disagreed. The respondent put to Mr Wallis that he was regularly late and that the respondent often received complaints from customers. Mr Wallis said ‘I - I say, ah, that doesn't necessarily relate to me, and - and I deny that, I don't - I was - I wasn't late, I wasn't even late sometimes.’

Mr Morley’s evidence

65      Mr Morley gave evidence that on one occasion, some of their customers waited half an hour for Mr Wallis to collect them as part of a shuttle run. Mr Morley said the shuttle service usually had a five-minute turnaround time but on this occasion, the customers had to wait half an hour. He said: ‘They ended up walking back to the village, which is about a 500 metre walk.  And, ah, I think they actually met with Glenn and said, "Where were you, mate?  Why are you sitting here doing nothing?  I've been waiting up there for the last half an hour", which Glenn acknowledged, I think.’

66      Mr Morley also gave evidence about exhibit R1, which he said was an email from a rail supervisor. The supervisor had emailed the respondent saying that employees were continually about 10 minutes late in the morning. Mr Morley said that Mr Wallis had been working the day before this email was received.

67      In cross-examination, Mr Morley gave evidence that he received three or four phone calls from the rail supervisor and one email, although the respondent couldn’t say for sure it was Mr Wallis who was running late in relation to those. The respondent was certain that it was Mr Wallis who caused the 30 minute delay though. Mr Wallis agreed.

Ms Morley’s evidence

68      Ms Morley gave evidence about exhibit R15, a text message chain that she said was an example of Mr Wallis running late.

69      She also spoke about exhibit R2, an email from one of the respondent’s clients to Ms Morley explaining that employees are not arriving at work with enough time before ‘prestart’ and asking whether there is a set time at which the employees could be picked up. Ms Morley said that it was very unusual to get this type of email. She gave evidence that she knows that Mr Wallis did this run because she has the text message she sent him allocating him the job.

Summary of why Mr Wallis says his dismissal was unfair

70      Mr Wallis says that there was no proper enquiry into why he was late returning to the depot on 7 June 2021. He says the respondent failed to give him procedural fairness and did not have a valid reason for dismissing him. The conduct he engaged in was not serious enough to warrant dismissal and he was not given any warning. He says that the respondent had made its decision to dismiss him before he returned to the depot ‘regardless of any excuse or reason, ah, ah, that I would give for being laid back.’ He said that the dismissal was unfair because there were ‘other avenues’ that could have been explored.

Summary of why the respondent says the dismissal was not unfair

71      The respondent says:

Look, he started off quite well, working for us.  And then, obviously, he just kept going downhill and downhill with performance issues. Ah, things that Glenn knows are wrong.  And it was a - a constant battle to - for Glenn to try and get away with doing stuff.  And we'd have to reinforce and tell him that that's not right.  And it's - it's stuff that he knew.  Like, he knows not to drive with mobile phones.  He knows not to wear open shoes in this environment.  And I think the only real reason for him to do that was to damage our business.

..

Ah, at the end of the day, we had complaints from customers.  We had complaints from other bus companies.  We had complaints from, ah, big clients.  And we just couldn't find any work for Mr Wallis to fulfil anymore, because he just consistently couldn't do those jobs as a bus driver should do it.

Consideration about whether the dismissal was unfair

72      To the extent of a conflict in the evidence, I prefer Ms Morley and Mr Morley’s evidence over the evidence of Mr Wallis. Ms Morley and Mr Morley were forthcoming and answered questions put to them. Their evidence was not disturbed under cross-examination. They both impressed me as truthful, reliable witnesses.

73      Mr Wallis was not a forthcoming witness. Frequently he did not answer questions put to him. It was necessary to tell Mr Wallis at least six times to answer questions put to him. Mr Wallis did not make concessions that were due. For example, although Mr Wallis did not dispute that it would take at least 42 minutes to drive from Searipple Village to Point Samson, Mr Wallis would not concede that having left Searipple Village at 12.09pm, it would not have been possible for him to arrive at Point Samson on time by 12:45pm.

74      Some of Mr Wallis’ evidence was implausible, for example when he insisted that it would take him 15 seconds to go home during his shift to change his shoes.

75      Mr Wallis was a casual employee with eight months of service. I find the respondent was a flexible, accommodating employer. I accept that the respondent tried to offer Mr Wallis a range of work and accommodated Mr Wallis in a variety of ways. One example is that the respondent allowed Mr Wallis to go home during his paid shift from 4.30pm – 7.30pm as long as there was no work that it needed Mr Wallis to do. The respondent did not require Mr Wallis to work on wharves and he was free to refuse shifts.

76      That Mr Wallis was not paid for the work he was scheduled to do (but did not do) in the afternoon of the day he was dismissed does not mean Mr Wallis was dismissed for serious misconduct. I accept that the respondent considered that because Mr Wallis was a casual, it only needed to pay Mr Wallis for work he did.

77      Broadly the parties agree about most of the facts in this matter. But to the extent that they do not, I consider that even on Mr Wallis’ own evidence his performance was very poor. He did not properly escort passengers on the wharf, he was rude to his employer when asked to collect passengers he had left behind and he was late on bus runs. Mr Wallis used his phone while driving a bus, holding the handset to his ear, and then argued with Mr Morley when Mr Morley tried to tell him that such conduct was unacceptable.

78      I accept Mr Morley’s evidence that on 2 March 2021 he directed Mr Wallis not to wear open footwear again and that Mr Wallis wore open footwear anyway on 10 March 2021. Mr Wallis’ evidence was that on 10 March 2021 he said ‘Oh, you caught me’ when Mr Morley raised the issue of wearing open footwear. I infer from that that Mr Wallis knew that he should not be wearing open footwear while driving a bus. So much is common sense in any event, regardless of any requirement to wear steel cap boots on a particular mine site.

79      It is not in dispute that twice Mr Wallis declined to do a driving job while he was being paid to work from 4.30pm – 7.30pm because he was cooking his dinner. Plainly, in those circumstances it was not reasonable or acceptable for Mr Wallis to decline to perform work. I also accept the evidence of Ms Morley and Mr Morley, supported by exhibits R2 and R15, that Mr Wallis ran late for shuttle services and that his lateness could adversely affect their business.

80      The evidence shows that there were many instances of poor performance. I find that the respondent raised performance issues with Mr Wallis. He was given a written warning that said: ‘Where performance has not improved over the designated performance period with the appropriate counselling, this could lead to possible separation of employment.’ Further, Mr Morley gave evidence that when he handed the written warning to Mr Wallis, Mr Morley said if ‘we continue on doing things outside of the rules, there will be no employment.’

81      Mr Wallis was not dismissed for serious misconduct. He was dismissed because of his consistent poor performance. On 7 June 2021 Mr Wallis was late because he left Searipple Village too late, not because he was stuck driving behind a road train. Being on time is an essential part of being a bus driver. The respondent was entitled to expect Mr Wallis to be on time, reliable, wearing appropriate footwear and not using his handset while driving a bus. Mr Wallis repeatedly failed to perform to the standard reasonably expected of a bus driver.

82      Over the course of his employment, the respondent gave Mr Wallis a reasonable opportunity to improve his performance. Ultimately, Mr Wallis’ performance remained poor and he did not improve to the standard reasonably expected of an employee in his role.

83      On balance, given Mr Wallis’ sustained poor performance overall, I have no difficulty finding that that Mr Wallis did not get ‘less than a fair deal’. The respondent gave Mr Wallis ‘a fair go all round’ (see Undercliffe) and did not exercise its right to dismiss in such a way that was so harsh, oppressive or unfair that it amounted to an abuse of that right.

84      Application U 55 of 2021 will be dismissed.