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.