Reinstatement & compensation for GC Bus Driver sacked for ‘enforcing mask mandate’

A Gold Coast bus driver has won reinstatement and compensation for seven months’ lost wages following her dismissal in September 2021, in which her employer wrongly accused her of threatening behaviour towards a passenger who told her to “f*** off, Karen”, when she requested that he “put his face mask on properly” after the passenger boarded the bus wearing a mask pulled down under his chin, failed to pay his fare, and sat in the seats reserved for passengers with a disability.  

After failing to comply with the driver’s repeated requests to put his mask on properly, the passenger was ejected from the bus at the next stop for “verbally abusing” the driver, who had also contacted the control room to request police attend the location when the passenger initially refused to disembark. All other passengers were asked to leave the bus while awaiting the arrival of the police, with the abusive passenger having caught the next bus before police attended.

The bus driver was summarily dismissed for the incident a week later, with the employer arguing the driver was “trying to enforce the Queensland Government mask mandate in breach of the [employer’s] Policy”. The policy says that while the employer expects all staff to comply with the mandate, the “enforcement of mandatory mask wearing remains the responsibility of the Queensland Police Service” and “frontline staff are not expected to undertake any enforcement activities in relation to passengers not wearing a mask”. The termination letter, in part, advised the driver, “I am not satisfied that you have demonstrated any desire to follow the Company rules and will continue to put yourself and others at risk of harm if you were to remain employed at Surfside”.

Before the Commission, the employer claimed the decision to dismiss had regard for a previous final warning issued to the driver more than a year prior, which related to the driver using her smart watch to contact the parent of a child who missed their stop. The employer argued that instance also represented a breach of the employer’s code of conduct and demonstrated a “consistent trend in behaviour which saw a non-compliance or non-conformance” with instructions.

Commissioner Riordan of the FWC was unpersuaded by the employer’s arguments, finding instead that, in relation to the incident with the belligerent passenger, the driver “did not engage in any activity which could be identified as being ‘enforcement’ [of the Government’s mask mandate]” and therefore she could not have been in breach of the employer’s policy. The Commissioner commented, “I find it incredulous that any employer would dismiss an employee for asking a passenger to comply with a Government mandate” adding, “The attitude of the [employer] in not worrying whether passengers comply with the Government mandate during a public health emergency is concerning”. Commissioner Riordan stated that the employer “did not respond appropriately to the verbal abuse that the [driver] received from the passenger” and instead, “simply condoned the actions of the passenger”.

Additionally, Commissioner Riordan observed that the earlier incident of the driver using her smart watch while driving had not warranted a final warning, saying, in that respect, the employee was “providing a service to a worried mother, not having a bet on the last race at Doomben or talking to a friend”. The employer also failed to establish that the driver’s actions “were inherently more dangerous by talking into her watch rather than using the two-way”, the latter of which, Commissioner Riordan noted, required the driver to take her eyes off the road whilst driving.

In concluding the employer did not have a valid reason to dismiss the driver and that the dismissal was “harsh and unreasonable, and therefore unfair”, Commissioner Riordan awarded reinstatement, noting the employee was “clearly a proud and caring bus driver who loves her job”, accompanied by continuity of service and backpay of lost wages.

Logsdon v Surfside Buslines Pty Ltd [2022] FWC 392 (22 April 2022)