Reinstated for unfair dismissal after saying “f..k off Karen”
An unfair dismissal case has seen the reinstatement of a Gold Coast bus driver who was told to “f**k off Karen” by a passenger. The insult came after the bus driver asked the passenger to wear his face mask properly. An act that earned her a summary dismissal from her employer. Reinstated for unfair dismissal after saying “f..k off Karen” is common place when analyzing the calls we get. Abuse by and belligerent customers, co workers, managers can be part of everyday workplace life if you let be so.
This case posed two critical questions to the Fair Work Commission. Firstly, what is considered abuse? The employer insisted that in being sworn at by the passenger, the bus driver wasn’t subject to abuse. Rather, it was simply ‘rude’ behaviour. The second question posed was: should a frontline worker be dismissed for enforcing COVID-19 mandates if it’s a breach of company policy?
Reinstated for unfair dismissal
Let’s look at the incident that led to the bus driver being dismissed for “serious misconduct,”. The reasons why the Commission ruled it an unfair dismissal and reinstatement should apply.
“Please, please put it on”: Bus driver told off for politely asking passenger to wear face mask
On 16 September 2021, 55-year-old Gold Coast bus driver Amie Logsdon was driving her route for Surfside Buslines when she picked up a troublesome male passenger. Not only did the passenger fail to pay his fare. But he also sat in the seats marked for the disabled. And with Queensland COVID-19 health orders in place across the state, he wasn’t wearing his face mask properly, having it placed under his chin.
What happened next was critical to this unfair dismissal case. While driving, Ms Logsdon asked the passenger to adjust his face mask so it would cover his mouth. The passenger replied by asking if it was mandatory to do so. When told it was, he claimed that he had an exemption. Ms Logsdon subsequently asked the passenger why he was wearing a mask at all if he has an exemption. The man replied that he had been visiting a friend in day surgery.
But Ms Logsdon remained persistent, again asking the passenger to “Please, please put in on”. To this, the passenger replied “F**k off Karen”. For verbally abusing her, Ms Logsdon told the passenger that he can get off at the next stop. But when the bus arrived, the passenger refused to alight.
Call the police
After this refusal, Ms Logsdon used her radio to contact her control room, asking them to call the police. She also requested all the passengers still on the bus to get off. Eventually, the non-compliant passenger alighted from the bus. This came after he stated that he was a law student, and that in his opinion, the police would not turn up. The police did in fact turn up, but the passenger had already caught another bus.
The employee is dismissed by her employer for “serious misconduct”
Following the incident, Ms Logsdon received an instant dismissal by Surfside for breaching the policy of Translink. Queensland’s public transit agency. Specifically, by attempting to enforce the Queensland Government’s mask mandate. According to Surfside, that in itself was a violation of the mandate. As it states that “frontline staff are not expected to undertake any enforcement activities in relation to passengers not wearing a mask”. Rather, the enforcement is the sole responsibility of the police. Therefore, in not complying with the mandate, Ms Logsdon was in breach of Translink and Surfside policy.
On 22 September 2021, Ms Logsdon was issued a letter of employment dismissal. In it, Surfside stated that she had engaged in “willful or deliberate” actions that “had the potential to cause serious risk to the health and safety” of herself and all passengers on board. The letter also noted that Ms Logsdon could contact the Fair Work Ombudsman if she wanted more information about the minimum terms and conditions of employment.
The employee wins her unfair dismissal claim with Fair Work Australia
Ms Logsdon took her ex-employer’s advice to seek workplace relations assistance. On 12 October 2021, she filed an unfair dismissal application with the Fair Work Commission. She submitted that she wanted her employment with Surfside reinstated, and to receive lost pay brought about by its termination.
In January 2022, the Commission found that Ms Logsdon’s had in fact received an unfair dismissal. Commissioner Bernie Riordan refuted Surfside’s claim that Ms Logsdon had enforced the mask mandate. He also stated that she hadn’t asked the passenger to get off the bus for not wearing a mask. Rather, because he verbally abused her.
Asking a customer to follow instructions
“I struggle to see how asking a person who is already wearing a mask to place it over his mouth rather than wearing it under his chin can be described as somehow enforcing the mandate,” said Commissioner Riordan. “[Ms Logsdon] did not tell the passenger to get off the bus for not wearing his mask, did not refuse to drive the bus until the passenger put on his mask and did not speak in an authoritative voice to the passenger.”
And even though he found Ms Logsdon didn’t in fact enforce the mask mandate. Commissioner Riordan remarked that he found it “incredulous” that an employee would be dismissed for asking a passenger to comply with it.
The Commissioner slams the employer’s ‘incorrect and astonishing’ evidence
Surfside Driver Manager, Matthew Thompson, had submitted to the Commission that the “F**k off Karen” remark wasn’t tantamount to “abuse”. Rather, he maintained that it was simply “rude.”
“I do not believe that the passenger’s rudeness justified refusing him travel. Especially as he had not started the conflict and he appeared to be lawfully entitled to not wear a mask,” said Mr Thompson.
Commissioner Riordan however disagreed entirely, stating that it was in fact verbal abuse. He deemed Mr Thompson’s evidence as “inappropriate, incorrect and astonishing.” And he questioned Mr Thompson about whether he still believed the “Karen” remark wasn’t abuse. Mr Thompson subsequently recanted his words.
The Commissioner also stated that Surfside “did not respond appropriately” to the verbal abuse. Also, that it had “simply condoned the actions of the passenger,” even though they were in breach of the company’s passenger code of conduct.
“Not having a bet on the last race at Doomben”: The employer’s claims are further eviscerated
As part of their defence in this unfair dismissal case, Mr Thompson had told the Commission that Ms Logsdon had a history of “non-compliance” with instructions. More than a year before her dismissal, she had received a final warning for using her smart watch to call the parent of a child who missed their stop. Surfside’s code of conduct states that the use of a mobile phone “including texting, blue tooth” while driving can justify instant dismissal.
However, Commissioner Riordan quashed Mr Thompson’s claim that Ms Logsdon was in breach of the code. He said that Mr Thompson “did not provide me with any material which identifies a smart watch as a Bluetooth device”. He also said that Ms Logsdon “had a valid reason to use her smartwatch” to contact the child’s parent.
“[Ms Logsdon] was providing a service to a worried mother, not having a bet on the last race at Doomben or talking to a friend,” said Commissioner Riordan scathingly.
According to what criteria was the unfair dismissal decided?
For an unfair dismissal claim to be successful, the Commission must decide if the dismissal was harsh, unjust or unreasonable. It must make this judgement while considering certain criteria. One of these is “whether there was a valid reason for the termination which relates to the employees’ capacity or conduct.”
In the aforementioned case, Ms Logsdon had submitted to the Commission that the reason for which she was dismissed was not valid. Section 387(a) of the Fair Work Act 2009 states that a reason for dismissal must be “sound, defensible or well founded.” It also can’t be “capricious, fanciful or prejudiced.”
The Commissioner had found that Ms Logsdon hadn’t breached Surfside’s code of conduct, nor that of Translink. In fact, he found that Surfside had breached the Translink’s Passenger code of conduct by inappropriately responding to the abuse Ms Logsdon suffered. For these and several other reasons, the Commissioner found that her “dismissal was harsh and unreasonable, and therefore unfair.”
Have you experienced an unfair dismissal?
If you think you’ve been dismissed unfairly, it’s important to understand the criteria by which the Commission (FWC) will make its decision. However, this is often difficult if you’re not familiar with workplace relations legislation. What is a fair workplace investigation?, what is serious misconduct?. Dismissal is it fair or not fair?. How does all this apply in the workplace? Of course the case we have examined today get the publicity. However every case is different, it rises or falls on its own facts and merits.
Conclusion to Reinstated for unfair dismissal after saying “f..k off Karen”
For over 20 years, A Whole New Approach has helped thousands of people like you fight for their workplace rights. We make the process of submitting an unfair dismissal application simple and explain your legal rights in easy-to-understand terms. Call us on 1800 333 666 for a free, confidential discussion. Any Fair work Australia, workplace investigations, abandonment of employment, resign related issues.
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