Butler v Surfside Buslines Pty Ltd [2006] QIRC 35 (2006) 181 QGIG 357

[Extract from Queensland Government Industrial Gazette, dated 10 March, 2006, Vol. 181, No .9, pages 357-358] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Allan Reginald Butler AND Surfside Buslines Pty Ltd (B/2005/665) COMMISSIONER BECHLY 23 February 2006 DECISION Mr Allan Butler was employed by Surfside Buslines Pty Ltd as a bus driver for a period of approximately three and a- half years until 12 April 2005 when he was dismissed for serious misconduct. The misconduct alleged was that on a day that he was the driver of a bus on a school run he urinated beside a busload of primary school children in their full view after alighting from the bus having left the motor running. This event occurred on 17 March 2005. Mr Butler acknowledges that he alighted from the bus and left the motor running but says that he parked the bus in such a way as to obscure his actions from the passengers and, further, that he removed himself a considerable distance from the bus and stood behind a bus stop structure with dense foliage between himself and the bus and urinated. Mr Butler states that he was suffering uncomfortable bladder pain and that a traffic accident may have occurred if he continued to drive in that condition. He also says that the place where he stopped was used regularly by other bus drivers to relieve themselves. No evidence was provided to support this claim. Any knowledge of this alleged practice was denied by the respondent. The incident came to the attention of some parents and several complaints were made to the respondent. Mr Butler was informed of the complaint and by letter of 1 April 2005 was requested to attend a meeting with the respondent's representatives. The letter advised that the respondent had serious concerns about the conduct alleged and so advised in the following terms: "Allan, you need to be very clear that substantiated behaviour of the kind alleged would be grounds for termination of your employment. (sic) Particularly having regard to you previous history. Please contact the Manager Operations, Richard Filewood, so that a suitable meeting time can be arranged.". A meeting was arranged at 9:30 a.m. on Tuesday 12 April 2005. Mr Butler attended alone. He had discussed the matter with a union representative subsequent to receipt of the letter of 1 April 2005. Mr Butler was aware that he could be accompanied at the meeting. The meeting lasted approximately 30 minutes. I am satisfied on the evidence that Mr Butler was given a fair and reasonable opportunity to defend himself. There are substantial differences between the versions of events on that day. The most significant is whether Mr Butler could be seen by the children on the bus. On Mr Butler's version none of the children on the bus would have been aware of his actions. He described an elaborate ploy of checking tyres, opening the engine cover etc. to suggest a roadside safety or mechanical check and then walking to a concealed position at least twenty metres away from the back of the bus. On the other hand the complaints made to the respondent alleged that Mr Butler urinated in full view of the children at the side of the bus. The complainants base their allegation on the information given to them by their children. Mr Butler proposes that the children conspired against him and made false allegations because he was firm with them about their behaviour. This seems to have little foundation. One of the children, who was eight at the time, was called to provide evidence. He reported the incident immediately after he alighted from the bus a little after the incident. He had not been involved in any disciplinary incidents with Mr Butler. Neither had any of the other children whose parents lodged complaints. The evidence of this witness was very straightforward. Mr Butler alighted from the bus in a remote bushland area and urinated about two metres from the side of the bus. Many of the students looked out of the windows at him and commented on his actions. On a consideration of all of the evidence I accept that evidence as being a true description of the incident. It is compatible with the report given to guardians/parents that afternoon or shortly thereafter. There was no suggestion that Mr Butler suffered from any medical condition which could have caused an urgent and compelling requirement to urinate. There was no explanation to how such a situation could come about in such a short time following commencement of work at approximately 2:15 p.m. on the day in question. Mr Butler left the depot at -- 1 of 2 -- 2 approximately 2:25 p.m. There was no sustainable reason given as to why Mr Butler did not use the toilet facilities at one of the schools from which the children were picked up where a teacher would have been available to supervise the children. There was no reasonable reason given why the facilities at either of two service stations either en route or not far off the route were not used. The respondent's evidence is that Mr Butler's past record was taken into account in reaching the decision to terminate his services. It was said that there were nineteen other complaints that had been made about his performance or behaviour. Mr Butler contested a number of these stating that he had not received correspondence directed to him by the respondent. These were addressed to him at the depot. It was proposed for the applicant that the respondent's method of raising customer complaints about drivers left much to be desired. The respondent appears to classify customer complaints in three levels. At the first level drivers are simply informed of the details of a complaint which may have been made against them. No action is required to be taken by the driver unless they feel inclined to take the matter further. At a second level, if the respondent considers the complaint requires further investigation or input by the driver, a comment or reply to the complaint is required by the driver. At a more serious level the driver is required to attend a meeting to enable a full investigation. Each of the complaints become a part of the driver's personal file. While that process may have some shortcomings at the lower end of the range because the driver is not required to respond, the fact is, on the evidence, that the driver is able to respond to any complaint made and thus have that response made part of the file. More serious complaints made against Mr Butler included several cases of verbal abuse of children, twice making offensive comments to passengers about their weight and public embarrassment of a passenger over her pensioner concession card. On a consideration of all of the evidence I have come to the conclusion that the respondent's actions in terminating the employment of Mr Butler were not harsh, unjust or unreasonable. The application is refused. R.E.BECHLY, Commissioner. Hearing Details: 2006 6, 7 February Released: 23 February 2006 Appearances: Mr L. Bernhardt of Corporate Consulting Services Pty Ltd for the applicant. Mr J. Merrell of Counsel instructed by MacGillivrays Solicitors for the respondent. Government Printer, Queensland The State of Queensland 2006. -- 2 of 2 --