Clifford v State Transit Authority

The Issues

1. There are three issues that arise for consideration by the Commission: 1. Did the Applicant fail to sign on at her scheduled commencement (sign-on) time? 2. If so, did the Applicant receive payment for time not worked and to which she had no entitlement? 3. If the allegations are sustained, did the Applicant's conduct warrant dismissal?

Did the Applicant fail to sign on at her scheduled commencement (sign on) time?

1. Clause 4.11.2 of the Bus Operations Handbook specifically deals with the sign on process. The Clause states: 4.11 Operating AFC and Smartcard 4.11.2 Signing On/Off 4.11.2.1 Bus Operators must sign on when starting a shift or when starting the second half of a broken shift. Operators must also sign off at the end of a shift or at the end of the first half of a broken shift 4.11.2.2 For the purpose of signing on, Bus Operators must report to the Sign On area, collect their journal and: a. insert their Smartcard into the depot Portable Memory Readers (PMRs) which is situated in the depot pay-in lobby, For the purpose of signing off, Bus Operators must: a. insert their Smartcard into the depot Portable Memory Readers (PMRs) then pay in. 4.11.2.3 …
2. The following protocol is prescribed for signing on: (1) Upon arrival at the bus depot, a driver has to collect the daily journal from the sign-on clerk or the supervisor. (2) One then has to sign on the PMR. (3) The driver then proceeds to collect the cash trays, safety vest, tickets, MOT card and keys etc. (4) Then the driver proceeds to carry out a safety check of the bus that he or she will be driving to ensure that all is in order and everything is safe to go on the respective run.
3. The correct application of the above protocol is a critical point of divergence between the parties with each holding a different account of the correct process.
4. The Applicant acknowledged that all employees were supposed to follow the same procedure outlined above. Nevertheless, she held the view that the routine could be carried out in any order preferred by the driver provided all of the prescribed steps are completed and the commencement time of the particular bus run is strictly complied with. On that basis, it is irrelevant at what stage a driver signed on the PMR.
5. The Applicant claimed that there was a ten minute grace period for signing on at the PMR machine. In other words, one can sign into the PMR within 10 minutes of the scheduled PMR sign on time. Thus, whilst the PMR machine may have recorded her as commencing her shift late, she had, in fact, been on time because she had collected her journal and completed the bus inspection before signing on to the PMR machine. The following exchange occurred during cross-examination: Mr McLean: I'll read it if you like. "You will please note that previously all drivers have been advised of the issue of signing late" and the procedures explained to the drivers was that they had to sign within ten minutes of their arrival". Could you explain what you mean by that please Mrs Rai? Applicant: Within - when we have a sign-on time we were given that ten minutes to actually go and grab your vest or to sign-on to go to the PMR machine, collect your journal and also do an inspection of your bus. So it had to be within that ten minutes, but that's what it means. So you could do it in any order, but you were supposed to do that. Q: Are you saying that your belief is that if you sign on within ten minutes of your rostered sign-on time that that's okay? A: Yeah that's what my belief is and that's what we followed for the-- Q: Do you know where that instruction is? Have you seen any such instruction or? A: We are told. I've never - I don't remember receiving a copy of the policy books, but we were told when we - it's just the talk with the unions or something, some people say it's within seven minutes, some people say it's within five minutes, some people say it's within ten minutes. My belief is ten minutes with my union officials that it is ten minutes. No I didn't go and read it all in a policy or anything no, but that's the procedure, that's what it is. Q: You believe that's the procedure? A: Yeah. Q: So that you're allowed a ten minute grace within the rostered sign-on period? A: Yeah it is.
6. The Respondent denied the existence of the so-called ten minute grace period relied on by the Applicant insisting that it has never been an accepted protocol for signing on. Ms Byrnes emphatically denied the existence of any arrangement involving a 10-minute window of opportunity contending, during examination in chief, that "you sign on at the time you're due to sign on at the machine".

Charge One

1. The Applicant was scheduled to commence her bus run at 16.06 pm on 8 March 2012. The Applicant argued that even though she logged on at the PMR at 16.06 instead of 15.56 pm, she left the depot on time and was not late in commencing her run. She stated during examination in chief: I got to the depot and I signed on at the machine at 16.06 - oh well, I don't know, I signed and - I went to the depot, I got my journal, I signed on and I continued my shift. So I don't think I was late that day, I don't recall but I don't think I was late that day, and if I was ever late I'd always tell my supervisors. I would never, ever go without informing my supervisors that I'm - its very - it's a very - it's a normal thing to do to tell your supervisor that you're going to be late because it's going to affect the public, so if you're ever late you'd have to tell them that you're going to be late. It's very important to tell them that and that's part of our job.
2. The Applicant submitted in her written response to the charges that despite not logging into the PMR machine at the designated time, she performed all her rostered work and completed all her necessary safety checks between the time that she arrived at the depot to the time she logged on at the PMR machine.
3. The Respondent argued that whilst the Applicant may have arrived before 15.56 pm, she was still late in so far as she did not commence her bus route at the designated time. In any event, she could not have commenced her run at the designated time if she was still logging on at the PMR at 16.06 pm. The following exchange took place during cross-examination: McLean: Do you agree from the journal that you're due out of the depot at 16.06? Applicant: Yeah, due out of the depot at 16.06 yeah. Q: Well you couldn't have left the depot at 16.06 if you're in the office signing-on on the PMR at 16.06, do you agree? A: Yeah I agree. Q: So if you left the depot after 16.06 why didn't you make the alteration on your journal as you are required to do? A: I don't make an alteration, because I wouldn't have been late to my normal - that was a normal standard work what we do every day for the past years, I won't make that alteration because I'm not late.
4. The Automated Fare Collection (AFC) system recorded the Applicant as logging onto the bus at 16:08 - two minutes after the scheduled route commencement time.
5. The Applicant eventually conceded that she was late in commencing her run having discovered that she logged on at 16.06 pm - the same time her bus route was scheduled to commence.
6. The Applicant failed to comply with the Operations Handbook and the Protocols as to the point at which she was required to log on at the PMR.

Charge Two

1. In relation to the 10 March 2012 charge, the Respondent insisted that the Applicant signed on at 20.03 when her scheduled PMR sign-on time was 19.44 and therefore she was 19 minutes late.
2. The Applicant conceded she was late on that day but explained that she had called and advised the Duty Officer that she would be late. She contended that she should not be held responsible for payment being made to her for the time not worked. The Applicant gave the following evidence: Right, charge 2, I was - I think I was doing - I was signing on in one of the late nights, the nightshifts and on that day there was a major event going on at Homebush Bay and I recall being stuck in the - I left home say about one hour early knowing that it's going to be on. I came up to the M4 and there was an accident at - there were about three accidents that day and I think I was late and then I told - I'm not reading the - I told the inspectors that look, you know, I'm really going to be late and then I hung up. I said to - as you get closer you keep on warning them so - but on this one I was actually - there was some sort of event going on the Homebush Bay and I think I got there late but I told them and I'm going to be late, you know. But I still filled up on time during my shift, in other words, I never claimed overtime or anything, I continued doing my work. So I don't recall much.
3. Ms Byrnes was unshaken in that finding during cross-examination. It is noted that, not only could the Investigator not find any record of a call from the Applicant to the Duty Officer to report she was running late, but there was no adjustment on the Altered Journal Advice (AJA) - the Applicant's daily journal - to indicate that she was running late.

Charge Three

1. In relation to the 13 March 2012 charge, the Applicant once again claimed that she was not late for that shift. She said she was used to that shift commencing at 4 pm but for some reason the Respondent rescheduled it to start at 3 pm. She contended that, nevertheless, when she reported to the Depot she was advised that there were no buses available for her to perform her first trip (the school special). She contended that Mr Taouil, the Duty Officer, told her that when a bus did become available, she would start the trip from Ashfield Station at 16.38 pm. She said she signed on at 16.26 pm in order to commence her rostered trip from Ashfield at 16.38 pm when a bus finally became available.
2. Once again, the Applicant contended that she should not be held responsible if the Duty Officer did not adjust the journal accordingly.
3. The Respondent rejected that explanation. Ms Byrnes found, in her investigation, that the Applicant was late reporting for her shift which was scheduled to commence at 14.26 pm. Another driver, who was on his meal break, was asked to cover her shift from the Burwood Depot. The Respondent rejected the contention by the Applicant that the relief driver was already on that run and had his work altered
4. Ms Selina Hatcher, Depot Manager-Randwick Depot, confirmed that the Applicant was to operate the first route that day. Another Bus Operator was called on to cover the Applicant's route. In relation to the words "on the provide" which were noted on the Journal for 13 March 2012, Ms Hatcher explained: "On the provide" is a State Transit form used by a duty officer of trips that need to be provided, and thus allocated to operators different from what a journal record shows. So as a result of the trip not being able to be performed, or the work on a journal, which would be trips, not being able to be performed by the rostered operator, the provide is a tool where the duty officer records what trips need to be provided for and who does them.
5. Whilst Ms Hatcher was not aware of why it was necessary to arrange for a relief driver, she was emphatic that the Applicant, the operator who was rostered for that run on that day, did not operate that run.
6. Having considered the evidence in regards to this charge, I prefer the evidence provided by the Respondent in relation to the fact that the Applicant was rostered to undertake the shift on that day and that another driver was taken off his break and directed to undertake her shift.

Charge Five

1. In relation to the 14 March 2014 charge, the Applicant logged on at 16.10 pm when she was required to log on the PMR at 15.56 pm.
2. The Applicant contended that she got to work on time, however as with the other instances, decided to follow her own routine of signing on at the PMR machine after performing all her pre-departure tasks. In her written response to the charges, she advised that she had not been feeling well and had made frequent visits to the toilet.
3. The Respondent argued that the charge did not relate to the trip not running on time. Rather, she was charged with receiving an overpayment for a period of 14 minutes for which there was no entitlement.
4. The Applicant's oral evidence was vague as to why she did not log in on time: …. if I was ever late I would've reported it but I don't think I was late, I would have reported it if I was late but if - I think I got there on time and I think I was a bit sick may be, unless I didn't - I would've been going to the toilet or something about - but that's the only reason. I think I got there on time. I took my journal from the inspectors, I went and signed on on the PMR, which doesn't have to be a precise time like the sign on time, it takes me time for the walk up there and - Well, you'd be going looking for a car park, come down, run down. You have to scan at the gates to come in sometimes and I wouldn't have a card sometimes because I wasn't given a card when I reinstated again. I wasn't given a card to come in through the gates, I'd have to actually wait for someone to come in, hey let me in because … And then when I get someone to open the gate … then I do oi,, go to the DI, collect the journal from him, … then I go and sign on on the PMR, then I go upstairs, I have to go and collect my gear or safety vest or whatever it is and then go back to my bus and sign on on the bus….
5. Despite the Applicant claiming that she was in fact on time in commencing her bus route for that day, it did not absolve her of the fact that she failed to sign on at the PMR at the scheduled time. The Applicant was required to sign on immediately she reported for duty.
6. Once again, the Applicant failed to comply with the Operations Handbook and the Protocols as to the point at which she was required to log in at the PMR machine.

Charge Six

1. In relation to 15 March 2012 charge, the Applicant argued that she arrived at work at the correct time (15.54 pm), however, once again, the performance of her pre-departure tasks prior to signing on at the PMR caused her to be late logging on at the scheduled time. She did not log on until 16.04 pm (five minutes late). She was rostered to effect a staff relief at 16.21. However, the operator who performed the first portion of that trip did not arrive at the location until 16.36. Ms Rai commenced the trip at 16.40.
2. The Investigator found that, despite the fact the Applicant may have commenced the bus route on time, she had breached the Bus Operations Handbook by not signing on at the PMR at the scheduled time.
3. Despite the fact that the Applicant claimed that "every driver follows that [procedure] in that depot" there was no corroborative evidence brought before the Commission to support that contention which was denied by all of the Respondent's witnesses.
4. In addition, the Applicant stated that she has been following that procedure for 25 years - yet the allegations span the period 8 - 15 March 2012. Either the Applicant has been receiving overpayments over a longer period than she was charged with or the procedure followed by the Applicant was, contrary to her evidence, a recent invention.
5. I find that the Applicant failed to sign on at her scheduled commencement (sign on) time on the five instances in question.

Did the Applicant receive payment for time not worked and to which she had no entitlement?

1. The State Transit Authority Code of Conduct relevantly provides: 4.4 Appropriate Behaviour Professional Conduct In the interest of health and safety, efficiency, harmony in the workplace and the public image of State Transit, all employees must maintain an appropriate professional standard of behaviour. This means that you must: a. be honest and diligent in your work; b. ….. c. ensure that your decisions are consistent, fair and in the best interest of State Transit, other employees and the public; d. ….. i. make sure you comply with all State Transit policies, agreements and reasonable and lawful instructions; j. ….. 4.8 Attendance It is the responsibility of every employee to attend work in accordance with the scheduled hours of work arrangements applicable to their positions. When you are unable to attend for work, it your responsibility to notify your supervisor of your absence, in accordance with your award, agreements or instructions covering your employment. …. 4.18 Compliance As a State Transit employee, you are required to perform all the duties of your position promptly and efficiently, in accordance with relevant legislation and regulations, relevant awards and agreements, State Transit policies and lawful and reasonable instructions from your supervisor or manager. Breaches of this Code of Conduct are likely to result in counselling and/or disciplinary action, and in serious cases this may warrant dismissal. You should be aware of the Guidelines for Managing Conduct and Performance procedures (PROC 52.26).
2. The E1 letter stated that the Applicant may be in breach of the Bus Operations Handbook, specifically clause 4.10.1.2. That clause relevantly states: 4.10.1 Operating Rostered Work 4.10.1.1 ... 4.10.1.2 Bus Operators must work according to rosters and operate each journey according to the route and departure instructions shown in the journal or unless otherwise directed by a supervisor…..
3. Whilst clause 4.11.2 of the Bus Operations Handbook was not referred to in the E1 letter, it was directly referenced by Ms Byrnes in the Investigation Report in arriving at her determination.
4. The Applicant contended in her statement that the process for signing in was different if a driver was running late and argued that the Depot inspector (DI) or Supervisor was responsible for making the alterations to the Journal. The Applicant set out in her statement the procedure required to be followed where lateness was involved: 1. If a driver is running late, he or she is to advise the supervisor in the first instance. When advising the supervisor one has to also advise if any of the driver's runs are going to be affected and approximately how late the driver is going to be. 2. Once a driver has advised the supervisor, then from that point onwards, it is all up to the supervisor to take charge and control. 3. It is the supervisor's task to record lateness. Bus drivers are not allowed to alter their journals with regards to either getting paid more or less. 4. All relevant documentation regarding drivers is kept at the supervisor's office and not in my journal when it comes to entering any details with regards to late signing.
5. In contrast, the Respondent submitted that it was the Bus Operator's responsibility to amend their Journal if running late. During examination in chief, Ms Byrnes stated that when a Bus Operator is running late "… they notify a supervisor and then they would make the appropriate notations on the journal of the change of the times".

Charge 1

1. The Applicant signed on at the PMR at 16.06 pm instead of the scheduled time of 15.56 pm.
2. As stated earlier, the Applicant conceded that she must have been late in commencing her shift as she logged on at the same time as her route was scheduled to commence. There was no record of the Applicant calling her Supervisor to advise that she was running late. The Applicant's journal was not altered to reflect that she logged onto the bus at 16:08 pm - 2 minutes after the scheduled route commencement time. She received payment for 2 minutes for which there was no entitlement.

Charge 2

1. The Applicant conceded that she was late and provided a plausible explanation for her lateness. The Applicant was consistent in her explanation that she was stuck in the traffic on the M4 getting to work because the Sydney Swans and Greater Western Sydney Giants were having their first encounter in a game of Aussie Rules. The traffic on the M4 had been chaotic.
2. Nevertheless, there was no record in her journal of commencing her route at 20.03 pm instead of 19.44 pm. She did not personally alter her journal to indicate when she actually commenced her run. In addition, there was no corroborative evidence that she had informed her supervisor of the fact that she was running late.
3. Therefore she received payment for a period of 19 minutes not worked - a payment to which she had no entitlement.

Charge 3

1. The evidence was to the effect that her scheduled run was still operating and, in her absence, a relief driver was called in, off his tea break, to perform the Applicant's first run.
2. Once again, there was no independent corroborative evidence of the Applicant's contention that she arrived on time but there was no bus for her to operate. The evidence was to the effect that she was scheduled to sign on at the PMR at 15.16 pm but the actual sign on time recorded was 16.26 pm.
3. The Applicant received an overpayment for 1 hour and 10 minutes to which there was no entitlement.

Charge 5

1. The Applicant signed on at 16.10 pm instead of 15.56 pm.
2. There was no corroborative evidence in relation to every Bus Operator being able to choose the order in which they complied with the procedure.
3. Once again, the applicant received an overpayment for 14 minutes to which she had no entitlement.

Charge 6

1. The Respondent again posited that whilst the Applicant may have commenced her bus route on time, the charge was for not signing on at the PMR machine at the correct time, that is, at 15.59 pm instead of the recoded time of 16.04 pm
2. Yet again, the Applicant failed to comply with the Operations Handbook and the Protocols as to the point at which she was required to log in at the PMR machine.
3. I find that the Applicant received payment for time not worked and to which she had no entitlement.

If the Allegations are Sustained, Does the Applicant's Conduct Warrant Dismissal?

Applicant Submissions

1. The Applicant relied on the following propositions in support of the contention that the dismissal harsh, unreasonable and unjust:
2. The allegations were denied and/or not proven against her. The Applicant submitted that the allegations cannot be sustained for the following reasons: - the period of time over which the lateness occurred (8 March - 15 March 2012) was slight and did not give rise to conduct that cannot be corrected; - in addition, that period of time does not demonstrate chronic lateness; - no retraining, counselling or additional supervision were provided during the said period; - If the Respondent is to legitimately and reasonably rely upon past conduct, or a previous final warning or previous directions or the like, then such matters should have been brought to the attention of the Applicant. The E1 Form made no mention of the contention by the Respondent that her conduct leading up to the period in question was unacceptable. That was a recent invention, particularly in view of the fact that no final warning existed on which the Respondent can rely;
3. In the alternative, if the Commission finds that the charges are sustained, that the Applicant's conduct was not sufficiently serious to justify the penalty of dismissal;
4. There were two reasons that demonstrated that the internal investigation carried out by the Respondent was unfair, fundamentally flawed and/or worse constituted inappropriate conduct by the Respondent.
5. Firstly, the Respondent failed to provide the Applicant with a proper opportunity to respond to the charges against her. While clause 4.11.2 deals specifically with the sign on procedure, there was no mention of that clause in the E1 letter or in the Notice of Termination. There was, therefore, either "a failure to provide the applicant an opportunity to be heard on that clause or the inference is that there has been no failure or breach in respect to satisfying that clause". During cross-examination, Mr Peters acknowledged that clause 4.11.2 was part of the sign on procedure: Mr Fozzard: That clause there relates to the charge doesn't it? Mr Peters: It relates to it but section 4.11.2 is not section 4.10.1.2. Q: No I know that but that's not my question. My question is, there's the new clause, 4.11.2, that is directly at point to the charges isn't it - it's directly at point, you'd have to agree? A: It's a part of. It's about signing on and off. 4.10.1.2 is, "must operate according to roster and operate each journey according to the route and departure and instructions shown on the journal". It's overall encompassing of what is required in operating rostered work. 4.11.2 is specifically relating to signing on and signing off. Q: And the charges at a fundamental level, clause 4.11.2 is relevant? A: It's a part of. Again I‑‑ Q: It is part of … A: Again I go back to measure being late for work and not operating rostered work. Q: Please just my questions. You'd agree with me it's fundamental isn't? A: It is a part of section 4.10.2. … Q: ….. My question is, 4.11.2 hasn't been included in the E1? A: No. Q: And is directly on point to the charges - directly on point. Do you agree or disagree? A: It is related to the charges yes. Q: Do you agree or disagree? A: It is related to the charges and is a part of 4.10.1.2.
6. The Respondent's failure to include reference to clause 4.11.2 in Form E1 amounted to a denial of natural justice in that the Applicant was denied the opportunity to take advice and/or be heard and make representations to that clause. If clause 4.11.2 is part of 4.10.1.2 as Mr Peters stated, then the following inferences can be drawn - Firstly, its exclusion from Form E1 amounted to the charge not being fully particularised. Furthermore, and more fundamentally, it is open to the Commission to find that the Applicant did not breach clause 4.11.2 and therefore she was not in breach of all of clause 4.10.1.2. It was concluded that the dismissal was harsh in that the penalty was disproportionate to the breach as the Applicant had satisfied part of the charge and therefore there has not been a total failure to comply.
7. As a result of that omission, the Respondent did not conduct its investigations in relation to the relevant clause (4.11.2) of the Bus Operators Handbook. If it had, the enquiry would have elicited the necessary information relevant to the conduct of the Applicant. Ms Byrnes gave the following evidence during cross-examination in relation to the investigation she conducted: Mr Fozzard: And we talked about the investigation, and what it was to cover, it wasn't that clause, was it? Rachel Byrnes: No, it was not that clause. Q: No. And when State Transit Authority wrote to the applicant seeking representations, seeking to put them on notice, no one has ever brought up that clause, have they? A: Not that I'm aware of, no. Q: No. You agree that it's probably fundamental, isn't it? A: I guess. Q: Earlier on you said you agree with my proposition it was fundamental in the investigation, do you still hold to that? A: Yes.
8. Secondly, the Respondent without authority, either by law or in fact, wrote to the Applicant's general practitioner, without the knowledge or authority of the employee, disclosing confidential and privileged employment information of the applicant (namely that she was the subject of a disciplinary investigation) without a legitimate reason to make such revelation. The Applicant being the holder of the privilege was entitled to hold that privilege unless or until compulsion at law.
9. The conduct of the Investigations Officer, "whether innocently or otherwise motivated, shows that the investigation had fundamentally gone off the rails".
10. Neither the E1 Form nor the Notice of Termination alerted her to the fact that the Respondent intended to rely on prior conduct in arriving at its decision on penalty. The Applicant submitted that if the Respondent intended to rely on any previous conduct, then she should have been provided with an opportunity to also make representations as to her past conduct or employment history.
11. The Applicant had been provided with an E1 Form on 31 October 2011 when the Respondent became aware that her driver's licence had been suspended since 18 October 2011. The Applicant had failed to notify State Transit that she had been charged with an offence or that she had lost her driver's license. She was subsequently dismissed for that breach on 6 December 2011. The Applicant, with the assistance of her Union, lodged an appeal with the then Transport Appeals Board. A conciliated agreement was reached at the conference on 18 January 2012 which resulted in the Applicant being reinstated to her previous position from 23 January 2012 on a roster as near as possible to the roster she had been working immediately prior to her dismissal, subject to the issue of a final warning letter which provided, in part that: You are to treat this letter as your Final Warning that any more proven breaches of the Code of Conduct, particularly in relation to licencing [sic] issues will result in your dismissal from State Transit. Please treat this matter as extremely serious and remember your future with State Transit is now in your hands and an immediate and sustained improvement in your performance is required. The Applicant had refused to acknowledge receipt of the Final Warning letter and had her Solicitors write to the Respondent requesting the amendment of the Final Warning letter to encompass specific reference to the Code of Conduct. The Applicant had not received any response to that request.
12. If the Respondent intended to adduce or rely on evidence of prior conduct, then the fact that she was not provided with such opportunity to be heard must render the decision to dismiss unreasonable. During cross examination of Mr Peters, the following exchange occurred: Mr Fozzard: So in regards to her being dismissed under the E1 finally, it can only be the charges 1 to 6 can't it? Mr Peters: In relation to the E1 being proven, yes. In relation to Ms Rai being dismissed, my past [sic] as a reviewing officer is to review Ms Rai's employment history.
13. The Respondent displayed unreasonable conduct in investigating the charges against her to the point where the investigation was fundamentally flawed. The Respondent's refusal to allow the Applicant an opportunity to have her solicitor act on her behalf amounted to a denial of natural justice. Sarom Solicitors wrote to the Respondent on 13 April 2012 regarding the charges contained in the Form E1 document seeking daily journal sheets and an extension of time for the Applicant to prepare her response. The Respondent replied to her Solicitors with a two-liner merely referring them to the response sent directly to the Applicant. Her Solicitors wrote again to the Respondent on 30 November 2012 seeking a response. No reply was received either by the Applicant or her Solicitors to the follow up letter. The Applicant viewed the Respondent's behaviour in refusing to accept the union or her solicitors responding on her behalf as unfair, unreasonable and intimidatory. The Applicant believed that she was being singled out and victimised. Nevertheless, she had responded on 19 April 2012 addressing all six charges levelled against her.
14. It was further submitted on behalf of the Applicant that no prior warning was provided to her in circumstances where retraining, education and counselling would have been the reasonable approach.
15. Even if the charges are established on the evidence, with the exception of charge five, the lateness is slight and does not give rise to conduct that could not otherwise be corrected by a reasonable employer by the provision of counselling or re-training or education.
16. The incidents occurred over an acute time period and do not demonstrate chronic lateness. In such instances, dismissal should be a last resort.
17. The Applicant relied on the following precedents in support of its submissions - Clifford v State Transit Authority [2013] NSWIRComm 1033; Pizarro v State Transit Authority [2014] NSWIRComm 1019 and Melvin Feldman and State Transit Authority [2014] NSWIRComm 1017.

Respondent's Submissions

1. The Respondent relied on three grounds to assert that dismissal was warranted: (i) the prior conduct of the applicant leading up to the incidents particularised in the E1 letter; (ii) the Applicant breached the State Transit Code of Conduct and the Bus Operations Handbook; and (iii) the Applicant was afforded an opportunity to be heard.
2. It was contended that the Applicant breached clause 4.10.1.2 of the Bus Operations Handbook by her failure to sign on correctly.
3. The Applicant was afforded ample opportunity to be heard. The Respondent refuted the allegation that the Applicant had not been provided with procedural fairness pointing out that, in addition to the numerous extensions provided in consideration of her poor health, she had been afforded ample opportunity to provide her responses on the charges to the Investigation Officer as well as an opportunity, during her meeting with Mr Peters on 27 March 2013, to make a submission on the penalty under consideration.
4. The Applicant's explanations fell into four areas in respect of the charges listed in the Form E1 letter.
5. The first explanation pertained to the Applicant's personal routine for signing on before each shift whereby she would collect her journal and other paraphernalia, then proceed out into the depot yard to carry out a pre-departure check on the bus prior to turning off the ignition and securing the bus. She would then return to the administration office and sign on before taking the bus out. The Respondent pointed out that its witnesses had given evidence to the effect that the routine described by the Applicant lacked credibility and logic. It was unlikely to be common to bus operators in that it would cause unnecessary delay, was inefficient and had no real operational reason for its occurrence as it would create a situation where a driver could be late out of the depot.
6. The second explanation referred to the ten minute grace period relied on by the Applicant. As noted, it was the Applicant's view that there was a procedure in place where drivers were only required to sign on within ten minutes of their rostered sign on time. The arrangement described by the Applicant was refuted by State Transit witnesses. The Applicant had not provided any written procedures or corroborating evidence from co-workers attesting to the existence of such an arrangement It was contended that the claim had been fabricated by the Applicant in an attempt to explain away her late arrivals at work and late signing on for her scheduled work.
7. The third explanation provided by the Applicant was that it was the responsibility of the Depot Inspector or supervisor to record advice of lateness and to make the necessary adjustments to the Bus Operator's journal. In relation to that proposition the Respondent submitted: … The applicant claims that the responsibility for amending her work times rests solely with the supervising duty officer. We accept that the supervisor has the responsibility, but also the applicant had a responsibility. She had a responsibility to record on her journal changes to her working hours and operating times on a journal. Changes on the journal are used by the supervisor to make amendments to the working hours and instigate additional payments or deduction from wages. This has not occurred in the case of the applicant on either of the occasions that she was late that she made those amendments to her journal.
8. The Respondent highlighted that interestingly the Applicant claimed ten minutes additional working time on her journal for 13 March 2012 but failed to declare her late arrival by approximately an hour and ten minutes. The Respondent concluded that "[t]he reasonable inference here to draw is that she was disguising her late arrival once again for omission".
9. The fourth explanation provided by the Applicant related to accusations of differential treatment.
10. In his submissions, Mr McLean referred to conflicting evidence provided by the Applicant. He discussed the instance in which the Applicant was one hour and ten minutes late to sign on (Allegation Three) and the Applicant's explanation that upon arrival no buses were available for her to commence her route. In relation to this, Mr McLean stated: …We've heard evidence from two State Transit witnesses that in fact there were buses available. Clearly there were buses available. In fact the run was carried out by a replacement driver. Clearly she wasn't there to carry out that work, is our submission.
11. Mr McLean responded to the alleged breach of privacy relating to contact made with the Applicant's doctor. He contended that it was not unreasonable for an employer to contact a doctor seeking further clarification on what activities an employee can undertake if the said employee has supplied a medical certificate. Mr McLean pointed out that the Respondent felt obliged to disclose to her doctor the purpose of the interview she was required to attend: .... We also believe that in order to gain a proper assessment of what the applicant was fit for, it was necessary to indicate to the doctor of what the purpose of the interview would be. Quite clearly, if you speak to an employee about a minor matter, compared to what may be a disciplinary matter, the impact on the employee is to be quite different and that was the reason why it was felt necessary to reveal to the doctor, the purpose of that interview. If it hadn't have been revealed, I guess State Transit could then be accused of not providing sufficient information for the doctor….to make a reasonable response. The Respondent pointed out that the privacy issue had not previously been raised either by the Applicant or her legal representative. In addition, it had not been raised in the material filed and entered into evidence by the Applicant nor in her oral evidence in the proceedings on 16 July 2014.
12. In relation to clause 4.11.2 of the Bus Operations Handbook and its notable exclusion from the E1 letter containing the charges against the Applicant. Mr McLean explained: … I think it's very obvious why she wasn't charged with that. If we look at the E1, the E1 was put together at the time and charges assessed and on the basis of the information that was available at the time, there had been no breach of 4.11.2. There was no evidence that the applicant had not signed off. In fact the form E1 clearly gives sign-on times for all the breaches. On the surface of what was there, she had complied. She had signed on. The issues that are now being raised only came to light after … the applicant responded to the allegations. She was the one that made out that she'd followed a different routine and that different routine of course may well be in contrary to 4.11.2, but surely we're not suggesting that at that stage that we go back and recharge again. What she was charged with was about the rostered work, even in the light of a response to the allegations. That still stood and I think it's still appropriate for what she was - she was charged that way, she was found to have breached in that manner and the decision by the reviewing officer to level a punishment was based on those breaches. She has never indicated that he had considered a breach of the sign-on instruction. I think that one's been a little bit of furphy Commissioner, to be honest.
13. The dismissal was not harsh, unreasonable or unjust.
14. Although the Applicant had been employed for 25 years, the length of service should be offset by the seriousness of the current charges (which commenced in 2012) and her employment history which was not unblemished given the nature of her final warning in 2011. Considering the dates, there was not a long lead time between the two incidents. The Applicant has continued to deny the serious allegations despite the proof that has been provided attesting to her sign-on times and her failure to report. She has not shown any contrition for her actions nor has she acknowledged any wrongdoing. On that basis, therefore, the dismissal cannot be considered to be harsh.
15. The Applicant should take sole responsibility for her failure to report for work on time and then receive wages for time not worked. Her explanations for signing on late lacked logic and credibility, were untruthful and were designed to disguise her late arrival at work. The Applicant should have, given her long service, been aware of the correct procedure for recording her late arrival/running of the bus on her journal. Her failure to amend the journal to reflect the correct times was an effort on her part to disguise her late arrival at work. Those efforts at disguising her late arrival at work resulted in the receipt of wages to which she had no entitlement which is tantamount to misconduct. On that basis, her dismissal was not unreasonable because it was decided on inferences which were reasonably drawn from the material available to the Respondent.
16. Finally, the Applicant had been afforded procedural fairness. The investigation process did not prejudice the Applicant in any way - she was made aware of the nature and details of the allegations against her; the allegations had been provided to her in writing; she was provided with an opportunity to provide written explanations for her behaviour during the investigation process; she was provided with several extensions of time to provide those responses; and she had the opportunity to attend a disciplinary interview to clarify/advance on aspects of her written explanations to the investigating officer.
17. The dismissal was not unjust. With respect to procedural fairness, the Respondent: - refuted the Applicant's claim that she was denied the support of her legal representative or union during the disciplinary process. In fact she had the opportunity of a support person throughout the disciplinary process; - was not opposed to the Applicant having a support person in attendance but it did oppose such a person responding to questions on her behalf; - was of the view that it had a right to ask questions and receive responses directly from its employees; - pointed out that the Applicant was given access to the Employee Assistance Programme and to professional independent counselling during the disciplinary process; - pointed out that the Applicant was also provided with an opportunity to make submissions to the reviewing officer regarding an appropriate punishment; - contended that the investigating officer examined all the available evidence and drew conclusions based on fact; - took into account the Applicant's employment history in arriving at a suitable punishment; and - advised the Applicant of the reasons for the dismissal in writing.
18. In summary, the incidents of misconduct cannot be viewed in isolation from the previous past performance and conduct. Given the seriousness of the charges, particularly given that the Applicant was fully aware of the processes and procedures for signing on and recording correct working hours, also given that she had not shown any contrition for her actions and given that she had not provided any mitigating circumstances to explain her actions, it was decided that dismissal was the most suitable sanction to apply.
19. In conclusion, the Applicant should not be returned to the Burwood Bus Depot. Mr McLean emphasised the evidence of Mr Peters who had indicated that her reinstatement/re-employment at that Depot would be untenable.
20. During cross-examination, the Applicant admitted that she has not held a driver authority since mid-2012 until early April 2014 - which is a legal requirement to drive a public passenger vehicle; she testified that she had been medically unfit; she admitted that she had not actively sought alternative employment in that time; she had claimed that her gross weekly pay was $2500 yet during cross-examination admitted that it reflected her gross fortnightly pay; and the extensive delays in bringing the matter to hearing were occasioned by the Applicant. It was submitted that it would be unreasonable, if the dismissal was overturned, to compensate the Applicant for loss of earnings if she was unable to perform the inherent requirements of the job during that period.
21. I accept the explanation provided by the Respondent as to why the breach of clause 4.11.2 of the Bus Operations Handbook had not been included in the Form E1.
22. Whether it was prudent or not for the Respondent to write directly to the Applicant's treating doctor is not relevant in deciding the question as to whether her conduct warranted dismissal. It is noted that in this instance the treating doctor's report assisted the Applicant's position.
23. I have already found the allegations sustained. Her actions warranted some disciplinary measure to be applied.
24. The disciplinary actions available to the Chief Executive to impose, pursuant to Regulation 13 of the Transport Administration (Staff) Regulation 2012 are: (a) A caution or reprimand (b) A fine of an amount not exceeding $100 (c) Reduction in position, rank or grade and pay (d) Suspension from duty without pay (e) Dismissal It is noted that the Chief Executive may elect to allow the employee to resign instead of dismissal.
25. The Chief Executive opted for dismissal of the Applicant. I will deal with whether the option of dismissal was harsh, unjust or unreasonable below.

CONSIDERATION

1. The Applicant denied that she was late commencing her run on 8 March 2012. She argued that she had not amended her Journal because she was not late. She eventually conceded that she was 2 minutes late in commencing her run on that shift after it was proven to her that the AFC system had recorded her as signing on at the same time as she was scheduled to commence her route.
2. The Applicant conceded that she was 19 minutes late on 10 March 2012. There is no evidence in the records at the Burwood Depot that she called the Duty Officer to report that she would be late. She argued that she should not be held responsible for payment being made to her for the time not worked on. She laid the blame squarely on the Duty Officer who, she contended, ought to have altered her daily journal accordingly.
3. The Applicant claimed that there was no bus available to her to perform her first trip on 13 March 2012. She noted in her own handwriting on her Daily Journal "sign on at 4.25 due to c/leave". She actually signed on at 16.26 pm when she was scheduled to sign on at 15.16 pm. In other words, she was 70 minutes late. Once again the Applicant blamed the overpayment she received on the Duty Manager for not amending the records.
4. It is noted that the Applicant noted and claimed 10 minutes additional working time on her journal for 13 March 2012 yet she blamed her Duty Manager for failing to adjust the journal to identify that she was one hour and 10 minutes late for the same shift and for the other shifts in question. Whilst it is the role of the Duty Manager to sign off on the time sheets, it is the role of the Applicant to make any necessary amendments to her Journal.
5. As already stated, having considered the evidence in regards to that episode, I prefer the evidence provided by the Respondent in relation to the fact that the Applicant was rostered to undertake the shift on that day and that another driver was taken off his break and directed to undertake her shift.
6. The Applicant did not concede the charge relating to the 14 March 2014 incident. The charge did not relate to the bus not running on time but, rather, to the fact that, by failing to sign on at the PMR at the scheduled time, she received an overpayment for a period of 14 minutes for which there was no entitlement. As observed earlier, the Applicant's oral evidence was rather vague as to why she did not log in on time: Well, to start off with we are not paid by the PMR, we are paid by the journal, don't know if I had a copy there, it's a little piece of work that we had and we don't - I don't pay myself and I don't get overtime either. I give it to the DI or I pick it up from the DI and if he thinks I'm late, whose - he's responsible for the sign on time, I'm responsible to get there on time and if I'm not on time I have to tell them, look, I'm not going to be on time. But they deduct the time and I pick the journal up, then I've got ten minutes to go and do my work. I go and sign on, I could go upstairs and get my vest first and my cash tray and my DOT card and my Smart Card that I left in the - that's to sign on the PMR, I used to usually do that because I would lose it or something and then it would be - I'd be - I'd have to pay for it you know, and so I'd go to the locker first and grab my things and then go down and sign on and go on my bus. But that's the procedures that every driver follows, it's not just me, it's every driver follows that in that depot and I've been doing that for the last 25 years.
7. The Automated Fare Collection (AFC) system recorded the Applicant as logging onto the bus at 16:08 on 15 March 2012 - two minutes after the scheduled route commencement time.
8. The Applicant argued that she arrived at work at the correct time (15.54 pm) on 15 March 2012 but proceeded to undertake all her pre-departure duties causing her to log on five minutes late. She commenced her route on time. The charge is that she had breached the Bus Operations Handbook by not signing on at the PMR at the scheduled time. The charge is also proven as the Applicant failed to follow the established protocols set out above.
9. I accept that the investigation process was procedurally fair. The Applicant had requested, and been granted, a number of extensions to submit her written response to the allegations. I accept that the medical certificate certified her as unfit for work, not as unfit to respond in writing to allegations. It may be inferred that if she was fit to brief Solicitors to seek an extension of time on her behalf, that she would be fit enough to provide the written response either personally or with assistance from her lawyers. It was the Applicant who declined to participate in an interview which would have provided her with an opportunity to further explain her actions. It may have resulted in the investigator looking further into her allegations that the procedure she followed was common practice amongst the operators. There was no such evidence before the Commission. The Applicant failed to call evidence from any other operators to corroborate her excuse that her procedure was "common practice". The Commission is left with overwhelming, credible evidence to the contrary from the Respondent's witnesses.
10. I also accept that the Applicant was provided with an opportunity to make representations regarding the penalty being considered by the Respondent. Procedural fairness was not lacking throughout the investigative process and the process leading up to the dismissal.
11. As noted earlier, there was no argument that the punishment imposed was not lawfully imposed by someone with the delegated authority to effect it.
12. The Applicant was provided with a final warning in 2011 and the incidents leading up to her dismissal occurred in March 2012. There is no reason why an employer should not refer to an employee's past performance/conduct record in determining what disciplinary action to take. In fact, that record would, in some circumstances, provide mitigating circumstances in favour of the employee.
13. Whilst in industry generally, being a few minutes late may not be too much cause for concern over such a short span of time, the lateness has to be considered in the context of the industry she was working in and the requirement by the Respondent to provide reliable, prompt and efficient service to the public. As Stanton C held in Feldman v State Transit Authority, the STA's credibility and reputation as a provider of public transport in New South Wales requires employees to comply with all lawful directions including the Code of Conduct and the Bus Operations Handbook and the STA is entitled to expect compliance with its express workplace policies and procedures.
14. In addition, irrespective of how meagre the quantum of an overpayment is, there is no legal entitlement to it and it is money that belongs to the public purse.
15. It is noted that the Applicant commenced employment with the Respondent on 27 April 1987. There is no evidence of any problem with her log on times prior to the discrete period 8 - 15 March 2014. It is therefore available for the Commission to conclude that the interpretation of the protocol set out above was not the root cause of the problem.
16. I accept the evidence of the Respondent's witnesses that the routine described by the Applicant causes unnecessary delay and is inefficient. I also accept that there is no operational reason why she should adopt such a routine. As noted earlier, there was no corroborative evidence called or produced from any other operators to indicate that the practice she adopted was widespread. In fact, in Clifford v State Transit Authority, that Appellant confirmed that it was the Operator who amended the Journal.
17. I also accept the evidence of the Respondent's witnesses that the contention that there was a window of opportunity to sign on within 10 minutes of an operator's rostered time was a fabrication by the Applicant to explain the charges outlined above. All of the witnesses refuted that contention. Again, as noted earlier, there was no corroborative evidence called or produced from any other operators.
18. I have noted the Applicant's unsupported evidence on "victimisation" and reject it on the basis that the allegations were adequately addressed in the evidence of the Respondents and the responses of the Applicant in cross-examination.
19. In Byrne v Australian Airlines Limited Airlines Limited [1995] HCA 24; 185 CLR 410 at 465 McHugh and Gummow JJ stated; It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
20. The Applicant received a final warning in 2011. The repeated infringements in question occurred not long after (in March 2012). The Applicant continued to deny the allegations despite the evidence. She had not, at any time, shown any contrition for her actions. She has insisted all along that the procedure she adopted was common practice and was more feasible. When her length of service is balanced against the seriousness of her conduct and her lack of contrition, then the Applicant's termination cannot be considered to be harsh.
21. The Applicant had not complied with the Respondent's policies/ procedures. She arrived late to work but did not report it to her Duty Manager. She did not alter her Journal to reflect the fact that she was late and, as a consequence, not only disguised her late arrival at work but also received payment for time not worked. She amended her own Journal when she wanted to claim overtime. The Applicant's termination cannot be considered to be unreasonable.
22. It is noted that the Applicant was advised, in writing, of the details of the allegations against her. She was provided with the time and opportunity, extended on a number of occasions, to provide a written explanation in relation to the allegations. She was provided with an opportunity, between May 2012 - January 2013, to attend a disciplinary interview to further expand on her explanations. She did not take up that opportunity and the investigation report was finalised without her oral input.
23. The Applicant did not inform Ms Byrnes directly of the fact that she would not be attending the interview. Ms Byrnes was advised, the day before the interview, via the Staff Supervisor who, in turn, was advised by the Union Delegate, that she would not be attending. The Respondent was not made aware of the nature of any medical issues until it directly contacted her treating doctor who confirmed her medical condition on 25 May 2012.
24. She was provided with an opportunity to have a support person during the disciplinary process. She was given access to the Employee Assistance Program and professional independent counselling during the disciplinary process. She was provided with an opportunity to make submissions regarding the form of punishment to be applied. She has not shown any contrition nor has she put forward any mitigating circumstances apart from her lengthy employment history. In this case, the Applicant's lengthy employment period dictates that the incidents above should never have occurred given her experience, training and familiarity with the Respondent's Code of Conduct and policies/ procedures. The Applicant's termination cannot be considered to be unjust.
25. I am satisfied, on the balance of probabilities, that the allegations against the Applicant are proven. I am satisfied that she engaged in the conduct described in the charges above. The Applicant's dismissal was not harsh, unjust nor unreasonable.
26. In view of all of the above, the Commission finds that the five allegations are sustained and declines to intervene to overturn the decision to dismiss the Applicant.

ORDERS

1. Matter IRC 345 of 2013 is hereby concluded by dismissal of the application. I Tabbaa AM COMMISSIONER

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2015