24/11/17 Bus driver sacked after road-rage attack wins unfair dismissal case

Started by Barry Drive, November 25, 2017, 12:18:29 pm

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Barry Drive

From news.com.au , 24 November 2017-

(Author: Frank Chung)

A bus driver caught up in a violent punch-up on the side of the road during a road-rage incident captured on CCTV has won his job back.

The Fair Work Commission has ordered ACT Transport (sic) to reinstate a bus driver who was sacked after being assaulted during a violent road rage incident last year.

In May 2016, Christopher Thomas was caught up in a punch-up with the driver of a silver Hilux ute at a bus stop in the northern suburb of Ngunnawal. The bus was exiting the stop when the driver of the ute honked his horn and gave him the finger.

After Mr Thomas raised his middle finger in response, the other driver pulled up beside the bus and said words to the effect: "You fat c***, I've got it on camera -- you giving me the finger. You guys think you own the road. I'm going to report you and you're going to lose your job."

Mr Thomas replied with words to the effect, "I'm not interested in what you think. If you want to make a complaint you need to call ACTION."

The other man then drove in front of the bus and stopped suddenly, forcing the bus to brake to avoid a collision. Mr Thomas got off the bus to take a photograph of the ute's licence plate, but the other driver knocked his phone from his hands, sparking a fight during which Mr Thomas suffered "significant" injuries.

The ute driver was later charged and convicted of assault, negligent driving and damaging property in the ACT Magistrates Court.

Mr Thomas was suspended that month and in October was sacked for misconduct, with the internal investigation report finding he was "not faultless in the incident and at no time did he attempt to de-escalate the situation".

"Mr Thomas' behaviour continually escalated the situation from the initial rude hand gesture to the damage of the other driver's property [the ute's side mirror]," the report said. "It was inappropriate of Mr Thomas to retaliate in anger or rage when confronted by a member of the public."

He then lodged an unfair dismissal application with Fair Work, in which he pointed out, among other things, that he had not been charged by police over the incident while the ute driver had, and to say he was in any way responsible was "an exercise in victim blaming".

Mr Thomas also submitted that while he could be criticised for "flipping the bird", it did not constitute a valid reason for dismissal, describing ACTION's reaction as "entirely disproportionate" as he had been provoked and was acting in self-defence.

On Wednesday, the Fair Work Commission sided with Mr Thomas, finding his dismissal was "harsh".

Deputy President John Kovacic said while the incident "provided a valid reason for his dismissal", when taking into account the surrounding circumstances, his length of service and employment record, dismissal appeared to be a "disproportionate response".

"In particular, the material before the Commission points to the other driver being the primary instigator of the incident though Mr Thomas' conduct in 'flipping the bird' to the other driver and damaging the other vehicle were contributing factors," Mr Kovacic said.

"There is no excuse for Mr Thomas' conduct, his action in 'flipping the bird' to the other driver was particularly unnecessary and unprofessional.

"I note also that ACTION agreed that there were mitigating factors in this case accepting that Mr Thomas' conduct prior to and other than the incident had been unproblematic and that Mr Thomas had been reliable."

Mr Kovacic said while he accepted the relationship between Mr Thomas and his employer was "likely to be bruised", he did "not consider it beyond repair", ordering he be reinstated to his former position and the continuity of his employment be maintained.

He declined to order ACTION to repay Mr Thomas lost remuneration, however, "given that Mr Thomas' conduct in 'flipping the bird' and damaging the other vehicle were contributing factors to the incident and that his conduct associated with the incident was inappropriate."

The full Fair Work Commission decision can be read here: https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc6167.htm