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[2014] NSWIRComm 1017
Industrial Relations Commission (NSW)
2014-05-05
Original judgment source is linked above.
Judgment 1This matter concerned an appeal against the decision of the State Transit Authority (the respondent) on 28 October 2013 to dismiss the appellant on disciplinary grounds. Section 23(1) of the Transport Appeal Boards Act 1980 (the TAB Act) relevantly provides that the Board may decide to allow or disallow the appeal, or make such other decisions as it thinks fit. Accordingly, the Board is required to determine whether the appellant's dismissal in the circumstances of this particular case was an appropriate punishment. 2The appellant is Mr Melvin Feldman who commenced employment with State Transit on 24 September 2001 as a trainee bus operator. At the time of his dismissal, the appellant was employed as a Bus Operator Level 2 at Brookvale Depot. At the time of the hearing, the appellant was 62 years of age. 3The appellant's dismissal followed his breach of the State Transit Code of Conduct (the Code of Conduct) and the Bus Operator's Handbook. The appellant formally acknowledged receipt of the Code of Conduct and the Bus Operator's Handbook when he commencement his employment in September 2001. 4The appellant lodged a notice of appeal against his dismissal on 28 October 2013. Conciliation was unsuccessful. Directions for arbitration were subsequently issued and the matter was allocated to me for arbitration on 5 May 2014. The appellant was represented by Mr G Way of the Rail, Tram and Bus Union NSW Branch (the Union). Mr S McLean appeared for the State Transit Authority Division of the Government Service (the respondent).
The Allegations 5The following allegations ultimately lead to the appellant's dismissal: Allegation 1 On 25 July 2013 it is alleged that you breached Sections 4.1; 4.4, 4.4(c) and 4.18 of the Code of Conduct, Instruction No 3.1; 3.2(c), and 3.2(d) of the Bus Operator's Handbook when you deliberately gave incorrect information to an intending passenger. Particulars of Allegation 1 (1)On 25 July 2014 you were rostered to perform Run V094, Shift D272, Route E69. (2)At approximately (8:34am) at (the Wakehurst Parkway near Armstrong Street) you were asked by an intending passenger (Mosman High School student) of the stopping pattern of the service you were operating. (3)The passenger asked "are you going to Spit Junction" and you responded: "yes, every day." (4)When the passenger again asked if you going to Spit Junction you responded with words to the effect: "are you going to get on, all the other passengers are waiting." (5)Your response to the passenger was deliberately misleading knowing that the E69 service did not stop at Spit Junction. (6)You deliberately encouraged the passenger to board the bus knowing that she would not be able alight at her desired stop of Spit Junction. (7)The passenger was clearly a minor and your actions were inappropriate, unprofessional, lacked customer service and were not in the best interests of State Transit. Allegation 2 On 25 July 2013, it is alleged that you breached Sections 4.1; 4.4, 4.4(c) and 4.18 of the Code of Conduct, Instruction No 3.1 and 10.3.4 of the Bus Operations Handbook when you failed to allow a passenger to alight at her desired stop. Particulars of Allegation 2 (1)On 25 July 2013, you were rostered to perform Run V094, Shift D272, Route E69. (2)You encouraged a school student passenger to board the bust at (insert location) knowing she wished to alight at Spit Junction (Refer to Allegation 1 above). (3)You failed to stop in order to allow the passenger to alight at Spit Junction despite her having indicated her wish to get off by pushing the bell well ahead of time. (4)Further you failed to stop at the next available stop at (insert location) for the passenger to alight after you were informed of her wish to get off by another passenger. (5)The passenger was clearly a minor and your actions were inappropriate, unprofessional and lacked customer service. (6)Your actions were not in the best interests of State Transit and brought State Transit into disrepute with other passengers travelling on your bus.
Other Relevant Employment Related Matters 6The witness statement of Mr J Zmijewski, the Depot Manager at the respondent's Mona Vale Bus Depot set out various warnings or punishment given to the appellant during the course of his employment:
Mr Tarek Sabih 7Mr Sabih is the respondent's North Sydney Depot Manager. On 16 August 2013, Mr Sabih was nominated as the respondent's investigation officer to investigate the allegations that followed the incident involving the appellant on 25 July 2013. Copies of the relevant customer complaints and file notes concerning his meetings with the appellant, nature of the allegations put to him and his written response to those allegations dated on or about 14 August 2013 were attached to Mr Sabih's statement. 8As part of Mr Sabih's investigation, he examined CCTV footage concerning the incident taken from the bus the appellant was driving on 25 July 2013. A copy of the CCTV footage was also attached to his statement. 9At the outset, Mr Sabih referred the Board to CCTV footage recorded on the appellant's bus from 8:34.15 to 8:52.52am on 25 July 2013. The relevant CCTV footage commenced at the time the bus stopped at the bus stop where the young female passenger first conferred with the appellant and concluded when she alighted at Cremorne Junction. Between 8:50.19 and 8:50.26am, the footage shows an adult passenger speaking to the appellant. At 8:50.26am the appellant points to a sign on the overhead console stating words to the effect "do not converse with driver." At 8:50.27am the adult female passenger returns to her seat where the young female passenger was also seated. Between 8:50.30 and 8:51.15am, the bus passed three established bus stops. The footage also shows the young female passenger alighting from the rear door at 8:52.52am. 10Mr Sabih conducted a formal disciplinary interview with the appellant on 3 September 2013. A copy of the transcript of the interview was attached to his statement. On 4 September 2013, Mr Sabih sent an email to one of the complainant's seeking clarification of the events which had occurred on 25 July 2013. Shortly thereafter the complainant responded to his request by email and confirmed the following:
Mr Jay Zmijewski 22Mr Zmijewski is the respondent's Mona Vale Depot Manager. Pursuant to the Transport Administration (Staff) Regulations 2012 he has delegated authority to determine the appropriate penalty in response to employee misconduct. Following consideration of Mr Sabih's investigation report and findings, Mr Zmijewski formed the following view:
Appellant 29The appellant deposed that he had worked in the public transport industry for some 25 years including 12 with the respondent. In his view, he would never set out to deliberately mislead any person and particularly a child. In that regard, he stated he had no idea on the day of the incident that the young female passenger who made the enquiries concerning the direction of the bus was a school student. He further stated that she did not show him a school pass or make any enquiries about travelling to a school. 30In relation to the incident, the appellant stated the young female passenger was standing outside the bus during his first conversation with her. He asked her whether she wished to board the bus and when she did, she walked straight down the aisle and sat down. The appellant further contended that in his view, the young female passenger had asked him whether the bus travelled past Spit Junction as opposed to stopping at Spit Junction. Had she informed him that she wished to get off the bus at Spit Junction, the appellant stated that he "would have set her down at the next bus stop" so as to enable her to board another service. 31The appellant explained that his bus route that day was a limited stop service as required by government regulations and the respondent's driver training. He contended that drivers were instructed that unless approached with a direct passenger request to alight from a limited stop bus, the driver should continue to the next scheduled stop. 32The appellant acknowledged that another passenger attempted to talk to him when he was turning into Military Road from Spit Road. The appellant stated he had informed this particular passenger that it was unsafe for him to talk to her at that particular point in time. No further concerns were subsequently raised by passengers. 33The appellant contended that he had no difficulties with school students and in relation to this incident, if the young female passenger was taken to the wrong bus stop, it was a misunderstanding and completely unintentional. It was further contended that the phrases, "The Spit" and "Spit Junction" were commonly used landmarks by passengers unfamiliar with the general area. 34In cross-examination, the appellant agreed the young female passenger had asked, "Do you go to Spit Junction?" He did not agree her question was asking whether the bus stopped at Spit Junction. 35It was also the appellant's evidence that he only responded "Every day" once and not twice as alleged by one of the complainants. 36The appellant agreed that the young female passenger was hesitant when she boarded the bus because she was unsure about catching the bus, getting on the bus or being on the correct bus. 37The appellant further disagreed that he had encouraged the young female passenger to board the bus, nor did he encourage or gesture with his left hand for her to board. He further considered that questioning the young female passenger about her travel plans could be perceived by a third party as an invasion of her privacy. 38The appellant refused to agree that the young female passenger was a minor. 39The appellant agreed that prior to reaching the Spit Junction, a passenger had pressed the bus bell to alight at the Spit Junction stop. He further agreed that there was sufficient time to stop at Spit Junction. However, at the time, he had no idea who may have pressed the bell and it did not occur to him that it may have been the young female passenger who had previously asked him whether he was going to Spit Junction. 40It was the appellant's evidence that he did not believe Clause 93.1(A) of the Passenger Transport Regulations applied to an express bus which only sets down at predetermined stops. He acknowledged Clause 93.1(A) states a driver "must stop the bus and set down any passenger who indicates to the driver the passenger wishes to leave the bus...". 41The appellant confirmed that he was unaware that the relevant training afforded to bus operators by the respondent was that in the event a passenger rings the bell for an unscheduled stop, the driver keeps driving. However, where a passenger makes a direct approach to the driver, as was the case on 25 July 2013, the driver should stop and allow the passenger to alight. 42In relation to mitigation, the appellant confirmed he had not applied for any positions since his dismissal.
Mr Laurie Haigh 43Mr Haigh provided a statement of evidence in support of the way the appellant conducted himself on the day of the incident. Mr Haigh further contended that in his view the appellant was trying to assist the young female passenger "even though he may not have expressed himself clearly." He speculated that with respect to limited stop services, passengers often quote landmarks such as Spit Junction when checking the direction the bus travels. It was Mr Haigh's evidence that the respondent did not consider this aspect when investigating the incident. 44Mr Haigh stated the respondent receives numerous false reports concerning the conduct of bus operators and many of those complaints were lodged by telephone where the complainant remains anonymous. 45Mr Haigh contended that when confronted with false complaints, it was common for drivers to avoid excessive interaction with individual passengers by "withdrawing into themselves." 46It was Mr Haigh's evidence that the appellant was inclined to "withdraw into himself" and only provide passengers with "basic courtesy", rather than provide extended assistance for fear it may offend the passenger concerned and give rise to a complaint against him or in the extreme, an assault. He recalled that approximately four to five years ago the appellant was assaulted by a passenger during an all-night service. 47Mr Haigh stated that Passenger Transport Regulations 2007 - Division 3 Subclause 62(2)1 prohibits passengers from requesting drivers to set them down at an unscheduled stop. The relevant fine is five penalty points. 48In cross-examination, Mr Haigh agreed that his observations concerning the appellant's tendency "to withdraw into himself" and afford passengers basic courtesy whilst remaining low key was based on hearsay. Mr Haigh contended the young female passenger should have been more specific with her question and in that regard she should have asked whether the bus set down at Spit Junction. The following exchange subsequently ensued:2 McLean: You've used the words in there of going via, what happens if you use the words, "Do you go to Spit Junction?" Haigh: Well that would suggest that you do set down there, go to. McLean: If, for instance, those words were used, "Do you go to Spit Junction?" do you believe that the response, "Every day" would be an appropriate response? Haigh: It is - going further into my statement, it is a tongue-in-cheek humorous comment from the operator.
Mr Brian Wright 49Mr Wright is a bus operator at the respondent's Brookvale Depot. He deposed he was a colleague of the appellant and found the complaint that gave rise to his dismissal "perplexing" because it was lodged by a passenger who claimed she overheard the conversation between the young female passenger and the appellant. He further considered buses were loud and noisy vehicles and conversations between passengers and drivers alike could readily be misheard or misinterpreted as was likely the case in this matter: At the very worst, this is an unfortunate misunderstanding which happens from time to time on all limited stop services. Dismissal over such an issue is unheard of among my workmates.3 50In cross-examination, Mr Wright stated he would be surprised if there was evidence that there had been recent complaints against the appellant which had resulted in disciplinary action or warnings for breach of policies. Moreover, he agreed his written evidence that contended the two complainants travelling on the bus may not have heard the conversation between the appellant and the young female passenger accurately was based on informal discussions and possibly rumour and speculation within the depot.
Ms Narelle Sinclair 51Ms Sinclair is a delegate at the Brookvale Depot. The thrust of Ms Sinclair's evidence generally supported those matters raised by Mr Haigh concerning the appellant's conduct as a bus operator. She had spoken to the appellant concerning the incident and was his support person during the investigation process. During the course of the investigation, she explained to Mr Sabih the limited stop nature of the E69 service and the fact that at the time the young female passenger made enquiries concerning the destination of the bus, there was no available service that actually stopped at Spit Junction. She also noted that in the event the young passenger was travelling to Mosman High School, the transport info line recommends that passengers change services at Cremorne Junction which is the bus stop the appellant safely conveyed her to. 52Ms Sinclair considered the punishment of dismissal was extremely harsh given that the incident that gave rise to his dismissal "would be a common occurrence" and "many bus operators would have given the same information." 53In cross-examination, Ms Sinclair contended that the appropriate question for the young female passenger to raise with the appellant was that she was a school student and wanted to travel to Mosman High School. In the event she wished to alight at Spit Junction, she should have asked the driver, "Does this bus stop at Spit Junction?" Ms Sinclair also considered that if the appellant knew every timetable, it would have been appropriate in the circumstances of this particular matter for him to advise the young female passenger that the E69 service was a peak hour limited stop service and further at that particular time of day, no service actually stopped at Spit Junction.
Respondent 54The respondent submitted the appellant had agreed on 30 July 2013 during the investigation process that the young female passenger in question was 12 or 13 years of age and a minor. In that regard and given her age, an experienced bus operator would have interpreted the question, "Do you go to Spit Junction?" as an enquiry whether the bus stopped at Spit Junction. 55The CCTV footage supported the respondent's case that two female passengers contended the young lady repeated her question to the appellant twice. It was clear the appellant's response "Every day" was inadequate in the circumstances of the question put to him. The respondent further contended the appellant was aware the young female passenger sought to travel to Spit Junction and deliberately encouraged her to join the bus in the knowledge that his bus service was not scheduled to stop at Spit Junction at or around the time the bell rang. 56It was contended by the respondent that the appellant ignored a "bell ring" request to stop at Spit Junction on the basis that it was not a scheduled stop. The CCTV footage subsequently showed the appellant driving the bus into the middle lane of Spit Road to avoid stopping at Spit Junction. 57The CCTV footage clearly showed the appellant had turned into Military Road from Spit Road approximately 20 seconds before the adult female passenger approached him and attempted to conduct a conversation requesting him to stop the bus and allow the young female passenger to alight. In that regard, the actions of the two female passengers in talking to the young female passenger were recorded by the CCTV and clearly showed them speaking to her after she rose from her seat to alight and later sitting down when she had realised the bus was not going to stop at Spit Junction. One of the female passengers subsequently spoke to the appellant and shortly thereafter returned to her seat where she continued her conversation with the young female passenger. In the circumstances of this particular case, it was reasonable for the respondent to assume the conversation with the appellant included a request to stop the bus so as to enable the young female passenger to alight. 58The respondent submitted there was sufficient evidence to support the investigation finding that the allegations against the appellant were proven. Moreover, the appellant had been afforded procedural fairness and given an opportunity to put submissions to the reviewing officer, Mr Zmijewski concerning an appropriate punishment. The respondent had considered the appellant's past performance in determining the penalty of dismissal for breach of the Code of Conduct and the Bus Operator's Handbook.
Appellant 59The Union's submission was that the alleged incident was an unfortunate and unintentional misunderstanding that did not warrant the sanction of dismissal. The Union submitted the respondent had placed great weight on the young female passenger's age in deciding to dismiss the appellant. It asserted that the cross-examination of witnesses had shown there was no certainty about her age. That uncertainty supported the appellant's evidence that he had no idea of her likely age. 60The Union contended that in the event the young female passenger was a Mosman High School student, her alighting at Cremorne Junction was an option suggested by the Transport Info Line. Moreover, in relation to the incident, there had been no complaint from the passenger concerned nor her parents or school. 61In the Union's view, the appellant's conduct in relation to the incident was similar to that which would reasonably expected from most bus operators - that is, he gave his best answer that he thought was relevant at the time the enquiry was made. 62The respondent sought to rely upon the appellant's alleged poor and unacceptable customer service history which in reality amounts to just two complaints on average per year. The respondent has not considered the possibility that some of these complaints may have been successfully defended or withdrawn following the appellant's explanation of events. 63The Union noted the appellant was on a final warning with respect to an attendance issue. The incident that gave rise to his dismissal was not one which warranted dismissal. In evidence the appellant had stated that he was "very sorry" if the young female passenger was taken to the incorrect bus stop, particularly if she was a school student. However, she could still proceed to Mosman High School from the Cremorne Junction bus stop. 64The Union further contended that the destinations of Spit Bridge, The Spit and Spit Junction were commonly used landmarks by persons not familiar with the location or were unsure the direction the bus was travelling. 65The Union considered that it was reasonable for the appellant to assume that the young female passenger wanted to know, "would his bus take her in the direction of Spit Junction?" 66With respect to the limited stop nature of the appellant's bus service on 25 July 2013, the Union submitted there were examples where passengers "just want a quick ride home to a stop near their house and they will try and get those limited stop services to stop where it shouldn't and our drivers handle this very well and unless there's virtually an emergency they stick to the schedule."4 67The Union sought the appellant's reinstatement without loss of pay or entitlements.
Consideration 68At the outset, I accept that the process followed by the respondent to investigate the incident and the subsequent opportunity given to the appellant to respond to the investigation findings, including a response concerning an appropriate penalty to be applied was procedurally fair. I have examined the CCTV footage a number of times. In my view, it clearly shows an exchange took place between the appellant and the young female passenger before she stepped on to the bus on 25 July 2013. I have also examined the CCTV footage that followed until the time she alighted the appellant's bus at 8:52.52 am on 25 July 2013. 69I note that at the time of the incident on 25 July 2013, the appellant was in receipt of a final warning concerning his failure to attend for work on 14 February 2012. Notwithstanding that final warning, the appellant was counselled for his failure to follow a lawful and reasonable instruction concerning the taking of a crib break on 24 October 2012. 70Correspondence dated 27 November 2012 informed the appellant that any further breach of the Code of Conduct or Regulations "will result in more severe disciplinary action." In that regard, the appellant was aware and on notice that his job was potentially at risk. 71On material before the Board, the appellant had the capacity to do his joband given his service with the respondent, he was an experienced bus operator. No evidence has been advanced that he was unable to undertake the ordinary duties of a bus operator or that he had been inadequately trained. 72During the investigation, the appellant appeared to show little or no remorse for his conduct and did not consider his behaviour was inappropriate. 73I do not consider the appellant's explanation concerning the events of 25 July 2014 is plausible given the particular circumstances of this case. 74The Board is required to determine whether misconduct as alleged took place and consider whether the disciplinary punishment imposed by the respondent in relation to that misconduct was appropriate in all the circumstances: Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. The Board is also obliged to determine contested issues or facts on the civil standard of proof, that is, the balance of probabilities, consistent with the principles enunciated in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. Shortly stated, upon consideration of the evidence admitted by the contesting parties, the account that is more probable than not is to be accepted. The inherent probability of the allegation is considered in that process. 75Section 23(1) of the TAB Act provides that the Board may decide to allow or disallow an appeal or make such other decision as it thinks fit. 76In my view, the appellant's length of service imposes an expectation that his conduct and behaviour as a bus operator should at all times be consistent with the respondent's a policies and codes of conduct: Brar v RailCorp [2012] NSWTAB 7; Saxena v RailCorp [2012] NSWTAB 26 at [89]; and Formston v New South Wales Police [2006] NSWIRComm 88 at [94]. 77The appellant's dismissal followed an independent investigation. The appellant was provided with the allegations in sufficient detail to enable him to provide a considered response and mount a considered rebuttal. 78The Board has formed the view that the principles of natural justice have been observed within the investigation process and subsequent deliberations. Those principles include the fact that the appellant was fully aware of the allegations made against him, was afforded the right to be heard in respect to those allegations and to have a support person present. He was, on the material before the Board, treated fairly. I am satisfied that the appellant has been afforded a "fair go all round." In Day v Lumley Life Limited (1999) 90 IR 70, Hungerford J, stated: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. 79In North v Television Corporation Limited (1976) 11 ALR 599 at [616] Franki J held: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct... 80That is clearly not the case here. The appellant argued his length of service with the respondent should be taken into consideration. This proposition was considered in Brar v RailCorp, Rosee v RailCorp [2012] NSWTAB 30 and Nelson v RailCorp [2013] NSWTAB 2 at [101]. These cases are non-appellate authorities for the proposition that the expectation of an employee's compliance with the employer's policies and procedures is heightened by his or her length of service. 81The respondent'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 Operator's Handbook. The respondent is entitled to expect compliance with its express workplace policies and procedures. Moreover, the respondent has a legitimate interest to ensure employees do not act in a manner that might bring it into disrepute: Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd [2009] AIRC 893. 82I have considered the appellant's age, length of service and service record. I have also considered whether the sanction of termination was a disproportionate response rendering it harsh. Such factors are matters relevant to a consideration of an appeal. Regrettably, the seriousness of the allegations against him outweighs any mitigating factors such as his age, length of service and service record which otherwise may have supported an alternative penalty. 83The Board has had regard to all the evidence concerning the allegations put in proceedings on 5 May 2014. 84The Board is satisfied that on the balance of probability the appellant's conduct on 25 July 2013 as alleged did in fact occur. The evidence before the Board supports the finding that the appellant engaged in the conduct in the manner alleged under Allegation One and Allegation Two by the respondent. The Board is also satisfied the disciplinary penalty of dismissal was commensurate with the conduct of the appellant and was not a disproportionate response. The appellant's dismissal was neither harsh, unjust or unreasonable.
Order(s) 85The appeal of Melvin Feldman against the disciplinary action of dismissal by the State Transit Authority Division of Government Service is disallowed.
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Duhbihur
Transport Appeal Board and Anor