FEDERAL COURT OF AUSTRALIA Walpola v Transdev Melbourne Pty Ltd [2016] FCAFC 151 Appeal from: Walpola v Transdev Melbourne Pty Ltd [2016] FWCFB 564 File number: VID 254 of 2016 Judges: NORTH, BROMBERG and PAGONE JJ Date of judgment: 4 November 2016 Legislation: Fair Work Act 2009 (Cth) ss 385, 387(h), 394, 400 Date of hearing: 4 November 2016 Registry: Victoria Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: No Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr M Minucci Solicitor for the Applicant: Ressan Lawyers Counsel for the First Respondent: Mr T C Borgeest Solicitor for the First Respondent: Transdev Melbourne Pty Ltd Counsel for the Second Respondent: The Second Respondent did not appear ORDERS VID 254 of 2016 BETWEEN: SUMITH WALPOLA Applicant AND: TRANSDEV MELBOURNE PTY LTD First Respondent FAIR WORK COMMISSION Second Respondent JUDGE: NORTH J DATE OF ORDER: 4 NOVEMBER 2016 THE COURT ORDERS THAT: 1. The application is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT NORTH J: 1 The applicant, Sumith Walpola, applies to the Court for orders quashing the decisions of Commissioner Roe of the Fair Work Commission made on 2 November 2015 and the decision of the Full Bench of the Commission made on 28 January 2016. 2 The decision of the Commissioner dismissed the applicant's unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the Act) in which he alleged that the dismissal was harsh, unjust or unreasonable (s 385), and the decision of the Full Bench refused the applicant permission to appeal from the Commissioner's decision (s 400). 3 The applicant was a bus driver employed by Transdev Melbourne Pty Ltd, the first respondent. He was dismissed on 30 June 2015 as a result of events which occurred on 16 June 2015. There was controversy between the parties about a number of the circumstances arising on 16 June 2015 which were said by the first respondent to provide valid reasons for the dismissal of the applicant. The Commissioner found in favour of the applicant in respect of each of those circumstances save for one. This application relates to the finding of the Commissioner in respect of that circumstance. It is otherwise unnecessary to canvass the Commissioner's decision. 4 The Commissioner dealt with the relevant circumstance under the heading "Did the mechanic or the OCC [Operations Control Centre] tell Mr Walpola to return to the depot and did Mr Walpola advise the depot or OCC that he was returning to depot?" The Commissioner recorded the applicant's position at [20] as follows: I was instructed by the OCC to drive the bus back to the depot. I received these instructions from either the OCC attendant or the mechanic. I do not recall which of them gave me those instructions. 5 After examining the evidence on this issue the Commissioner concluded at [25]: I am therefore satisfied that Mr Walpola was not instructed or authorised to return the bus to the depot. I am satisfied that it is obvious that the proper operation of a public transport service requires that buses cannot be taken out of service or returned to the depot without authorisation. I am satisfied that Mr Walpola understood that he should not take a bus out of service or back to the depot without authorisation. 6 Then at [49] the Commissioner said: I am satisfied that the actions of Mr Walpola in returning the bus to the depot without authorisation was a breach of reasonable policy and procedure. I am satisfied that it is common sense, which should be appreciated by all drivers, that a bus should not be taken out of service or off route without specific authorisation. To do otherwise would be to cause disruption to the bus service and make the management of its human and capital resources impractical and inefficient. 7 Then at [53] the Commissioner said: For the efficient and effective operation of a public transport service the operator must be aware of where vehicles are at all times, must carefully control and monitor situations where buses are taken out of service and/or are replaced, and must carefully control and monitor events which may impact on the delivery or punctuality of the service. The failure to obtain authorisation before taking a bus back to the depot is in this context a serious issue. I am satisfied that Mr Walpola's actions in taking the bus back to the depot without authorisation is misconduct which constitutes a valid reason for termination. 8 And the Commissioner concluded at [56]: Given that I have found that there was a valid reason for termination and that I have found that there was no significant procedural unfairness and that there are no other factors which would suggest that the termination was harsh or unreasonable, I am not satisfied that the dismissal in this case was unfair. 9 It is convenient first to examine the applicant's grounds of challenge to the Commissioner's decision. The applicant contends that the decision was legally unreasonable because the Commissioner failed to have regard to: (1) the uncontested evidence that, immediately prior to the bus being returned to the Keysborough depot, all passengers had been transferred to another bus; and/or (2) the uncontested evidence that, immediately before the bus was returned to the Keysborough depot, the bus was stationed directly opposite the depot; and/or (3) the uncontested evidence of the applicant's personal circumstances. 10 The applicant submitted that the Commissioner did not mention any of these uncontested factors. The Court should infer, so it was argued, that the failure to mention the factors meant that the Commissioner failed to have regard to them. Yet, so it was submitted, the factors were relevant and it was unreasonable for the Commissioner to fail to have regard to them when addressing the requirement of s 387(h) of the Act which provides: In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: … (h) any other matters that the FWC considers relevant. 11 The applicant was represented before the Commissioner by counsel. The area of dispute between the parties was defined by written and oral submissions. In respect of the return of the bus to the depot the case of the applicant was that the return was authorised by the first respondent. The applicant's written submissions did not contend that, if the return was unauthorised, there were nonetheless reasons that the dismissal of the applicant was harsh, unjust or unreasonable. In response the first respondent filed written submissions contending that the applicant was not authorised to return the bus to the depot. Then, just prior to the commencement of the hearing, the Commissioner circulated a draft statement of issues which reflected the boundaries of the dispute between the parties, including on this issue. The parties adopted that statement as a fair statement of the issues before the Commissioner. In the oral submissions counsel for the applicant again argued that the return of the bus to the depot was authorised. He did not contend that if the return of the bus to the depot was not authorised, the dismissal of the applicant was nonetheless harsh, unjust or unreasonable for any of the reasons now relied upon. The only reference in closing submissions before the Commissioner relied on by counsel for the applicant before this Court was at [1721] of the transcript, which records: We would also say that the outcome, that is, the dismissal, when compared to the conduct was harsh, that this matter should not have resulted in Mr Walpola's dismissal. However, this passage does not embrace the matters now raised as relevant to the Commissioner's decision. 12 Before this Court counsel for the applicant submitted that the reason the matters now raised were not directly advanced was because they were not contested. That, so it was said, did not justify the Commissioner failing to have regard to them when applying s 387(h) of the Act. 13 The decision of the Commissioner reflected the boundaries of the controversy defined in the hearing of the proceeding by written and oral submissions. Those boundaries may have been drawn for good forensic reasons by the parties. It was not unreasonable for the Commissioner to rely on the boundaries of the dispute defined by the parties. He did not have an obligation to make the case for the applicant. It is too late in the day to agitate in this proceeding matters not raised directly before the Commissioner. The Commissioner's finding at [56] that there are "no other factors which would suggest that the termination was harsh or unreasonable" properly reflected the way the case was conducted before him, namely that the only argument advanced by the applicant suggesting that the termination was harsh or unreasonable was that the return of the bus to the depot was not a valid reason for termination. Consequently, the applicant has not established error which would justify the quashing of the Commissioner's decision. 14 It follows that the applicant has also not established error on the part of the Full Bench. 15 The application must be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 14 November 2016 REASONS FOR JUDGMENT BROMBERG J: 16 I agree. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg Associate: Dated: 14 November 2016 REASONS FOR JUDGMENT PAGONE J: 17 I agree. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 14 November 2016