Worker fights employer's 'unreasonable' policy over safety concerns

A Fair Work Commission (FWC) decision dealt with the unfair dismissal claim of a worker who questioned his employer’s policy, saying it was “unreasonable” and “harsh.”

The FWC then laid out the standards for what is considered “reasonable” under case law. Find out what HR leaders need to know in crafting company rules and regulations.

Background of the case

The worker was employed as a bus driver. One day, three boys, aged eight to 10, waited at the bus stop. The children wanted to travel on the bus but had no money for fares. The worker talked to them, and the children exited the bus. One of them allegedly launched a metal rod that struck the driver’s side window.

Due to safety concerns, the worker contacted his employer’s base office for further instructions. The company’s response team attended.

Later, he was terminated for serious misconduct because they said he breached the employer’s “no child left behind policy.”

The worker said that the termination was harsh, unjust and unreasonable. He argued that he did stop for the children and followed his employer’s procedures in the handbook.

The worker said he acted out of fear for his own health and safety, arguing he was “concerned” about the metal rod, which he “believed could be used as a weapon.”

The worker said there was a lack of procedural fairness since there was only one 30-minute disciplinary meeting and no previous conduct or performance issues.

The employer said the dismissal was caused by the worker’s conduct in breaching its policy. When the issue reached the FWC, the commission considered the “reasonableness” of the employer’s policy.

What is a ‘reasonable policy’?

According to the FWC, what is reasonable will depend on all the circumstances, including the nature of the employment, established usages, common practices and general provisions of the instrument governing the relationship.

“A policy will be reasonable if a reasonable employer, in the position of actual employer and acting reasonably, could have adopted the policy,” the decision said. “What can be considered reasonable will likely differ for each individual employer. So much is almost certain when considering the unique regulatory obligations and industry practices that an employer can face.

“This is only compounded by the case law, which provides that it is not the role of the Commission to interfere with the right of an employer to manage their own business. The choice of the employer need not be the most reasonable decision, but simply fall within the realm of reasonableness.”

The FWC’s decision

The FWC said it was satisfied that the policy was reasonable because the employer’s service includes “providing reliable and respectful service to the public, including children.”

The commission also said that the worker had been trained to de-escalate such situations but chose to disobey the employer’s policy.

The employer has a role in providing public carriage safely and responsibly. Thus, the FWC said the worker was not unfairly dismissed.