Kyriakou v State Transit Authority Division of the NSW Government Service

REASONS FOR JUDGMENT 1This matter concerns an application by Mr Andrew Kyriakou for leave to appeal and, if leave is granted, to appeal from a decision of Bishop C constituting the Transport Appeal Board in Kyriakou v State Transit Authority [2011] NSWTAB 17. The appeal was said to be brought pursuant to s 197B of the Industrial Relations Act 1996. 2On 21 June 2012, the Full Bench determined to refuse leave. What follows are the reasons for that refusal. 3Mr Kyriakou had been dismissed from his employment as a bus driver with the State Transit Authority, Division of the New South Wales Government Service on 17 November 2010 for failing to comply with a reasonable and lawful direction. On 24 November 2010 Mr Kyriakou exercised his right of appeal against the dismissal under s 13 of the Transport Appeal Boards Act 1980 ("TAB Act"). Mr Kyriakou had earlier (2 September 2011) lodged an appeal against his suspension without pay, pleading not guilty. That appeal was also dealt with by Bishop C. 4The hearing of Mr Kyriakou's appeal took place over six days and on 8 September 2011 the Board determined to disallow the appeal, presumably under s 23 of the TAB Act. 5Whilst the appeal was purportedly brought under s 197B of the Industrial Relations Act, it would appear that the appropriate legislative provision is s 23A of the TAB Act, an Act that makes provision with respect to appeals by officers and employees of the State Transit Authority and other Authorities. Section 23A provides: 23A Appeals on questions of law (1) A party to a promotion or disciplinary appeal may, subject to subsection (3), appeal to the Full Bench of the Commission in Court Session against any decision of a Board in the proceedings on a question of law. (2) On an appeal under this section, the Full Bench of the Commission in Court Session may: (a) remit the matter to the Board for determination in accordance with the decision of the Full Bench, or (b) make such other order in relation to the appeal as seems fit. (3) Part 7 of Chapter 4 of the Industrial Relations Act 1996 applies to an appeal against a decision of a Board under this section in the same way as it applies to an appeal against a decision of the Commission under section 197B of that Act. 6Part 7 of Ch 4 of the Industrial Relations Act includes s 188, which provides: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 7It is clear having regard to the legislative scheme that a person appealing against a decision of a Transport Appeal Board requires the leave of the Full Bench and that the jurisdiction of the Full Bench to hear the appeal is only enlivened if the appeal involves a decision on a question of law. 8In Rail Corporation New South Wales v Brown [2012] NSWIRComm 14 the Full Bench considered the nature of an appeal under s 23A of the TAB Act. At [20]-[21] the Full Bench concluded: [20] An appeal under s 23A is not an exercise involving a search for any errors in point of law that arise in the proceedings but requires attention to a more precise issue, requiring the identification of a decision of the TAB in the proceedings "on a question of law." In this respect the judgment of Basten JA in Lambert at [70] is of particular relevance where his Honour quotes from the judgment of the Court in Grygiel v Baine [2005] NSWCA 218 at [29] citing the judgment of Bryson JA in Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58] that the terms of the Act there under consideration required "that an appellant must identify with precision a decision of the Tribunal with respect to a matter of law, in order to invoke the jurisdiction of the Court." We would respectfully agree with that statement, as relevant to the operation of s 23A. [21] The cases considered above dealing with provisions similar to s 23A provide the following guidance in identifying the scope of the appeal available under the Act: (a) an appeal from a decision on a question of law is a more limited appeal than that available on a question of law or involving a question of law; (b) it is not sufficient, therefore, to merely establish that an error of law has occurred in the course of the appeal; (c) while it must be shown that the Tribunal has made a decision on a question of law that is challenged on appeal, it is not necessary for the Tribunal to have, itself, expressly identified that question. It will be sufficient if the appeal identifies any decision of the Tribunal that is a decision on a question of law. Thus, where the Tribunal reaches a conclusion with respect to some matter that requires for its determination the identification of a relevant matter of law and error is alleged with respect to that matter of law, the jurisdiction of this Court under s 23A is invoked; (d) the appellant, nevertheless, is required to identify with some precision the decision of the Tribunal on a matter of law in order to invoke the jurisdiction of the Court under s 23A; (e) where the questions raised on appeal involve an assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implied decision on a question of law. 9Counsel for the appellant was advised at the outset of the appeal proceedings that it was not apparent on the face of the appellant's written submissions (or for that matter in the notice of appeal) that had been filed that the appellant had identified any decision of the Tribunal that was a decision on a question of law. Accordingly, counsel for both the appellant and the respondent were required to address this issue in the context of leave to appeal as a threshold issue. 10 In its decision the Board dealt in great detail with the background to Mr Kyriakou's dismissal. It is appropriate to summarise the Commissioner's factual findings. 11It seems that the trigger for what eventually ended up in Mr Kyriakou being dismissed was the issuance to him of an "E1", on 1 June 2010 concerning his late arrival at work on 7 May 2010. The "E1" was subsequently withdrawn following submission of Mr Kyriakou's explanation. An "E1" is issued in relation to an alleged incident which may be in breach of State Transit's policies. The particulars and background detail of a charge are listed and an employee is given seven days in which to explain the circumstances of the alleged incident, an interview may be necessary and if no response is received a decision will be made as to whether any corrective action is warranted. 12On 1 June 2010, Mr Kyriakou submitted a "General Report Form", advising that he was unable to commence his shift as a result of receiving the E1 as "I am unable to drive a heavy vehicle bus out onto the public street as a result of being handed this E1 in the state of terror I am feeling." 13On 2 June 2010, Mr Kyriakou sent a written document to Mr Dunne, a Human Resources Advisor with the respondent. The document stated, amongst other things: I thought that it would not be wise for me to just deal with and accept the E1 and just go out and get behind the wheel of a heavy vehicle with a bus load of passengers out onto the public street in light of what's occurred and in particular in light of the current oppressive and hostile work environment with some of the Managers at Randwick Bus Depot. I also felt your lack of understanding in relation to my current issues and concerns particularly when I informed you that my health has been impacted as a direct result of the hostile environment at work. 14On the 3 June 2010, Mr Kyriakou sent an email to Ms Phillips, the respondent's General Manager, Human Resources. In it the appellant expressed his concerns as to his ability to function properly as a Bus Operator due to being "harassed, intimidated or otherwise ill-treated by some of these managers and then having to drive a bus full of passengers and risk a serious accident all because my mind and focus has been terrorized by the very Managers who have made a point of making life extremely difficult for me". 15On 7 June 2010 Mr Kyriakou emailed a 15 page letter to Ms Phillips and forwarded by facsimile the 14 annexures referred to therein, in what he referred to as a "Part 1 Report". He raised various issues concerning the history of an E1 previously issued to him in 2009 concerning a fraudulent claim for 11 minutes; his subsequent regression in rank; issues to do with late running claims; complaints about "illegal and vindictive behaviour" of his managers at the Randwick depot; complaints of incidents of victimisation and harassment; allegations of bets being placed amongst drivers about his future; and impacts on his health and his personal family circumstances. 16A meeting was arranged to consider the issues raised by the appellant, but in the meantime the appellant's mother had fallen ill. 17By letter of 5 July 2010, Mr Wheeler, the respondent's manager of the Randwick depot, advised Mr Kyriakou of concerns about Mr Kyriakou's fitness to perform the inherent requirements of his position as a consequence of "a number of issues relating to your work performance and recent behaviour towards various State Transit personnel that appears unacceptable." He was directed to attend a medical examination on the 14 July 2010 with a consultant psychiatrist, Dr Klass Akkerman, to determine his fitness for duty. 18The issues raised with Mr Kyriakou by Mr Wheeler in the 5 July letter were as follows: With respect to your attendance, there appears to be a pattern where you have turned up and worked as rostered on weekends but been absent during weekdays, claiming you are unfit to work your rostered shifts. In some of these instances your absence has not been substantiated by way of medical certificates. Further, I have received advice from a number of State Transit staff that you have acted inappropriately regarding the tone and manner of your recent communication with them. Some of these incidents include: An offensive email to Ms Heather Brown in which you accuse her of maliciously and knowingly refusing to pay monies owed to drivers; Manipulating an 11 minute legitimate claim you lodged in which you believed resulted in you being labelled a thief and not following policies and guidelines; Using foul and threatening language towards Bus Operator Melia in the meal room when the disagreement occurred over the changing of the television channels; Approaching Mr Bruce Eddy in the depot yard and speaking to him in an aggressive and threatening manner accusing him of spreading rumours and defaming your character in the depot; Speaking to management in an aggressive and threatening manner when issues arise with staff members. 19On 13 July 2010, Mr Kyriakou contacted Mr Wheeler and informed him that he would not be attending the medical appointment scheduled for 14 July 2010. 20On 14 July 2010, the respondent wrote to Mr Kyriakou inviting him to show cause why he was unable to attend the appointment; why he did not comply with the direction to attend the appointment; and why he did not notify STA earlier about his non-attendance. 21On 19 July 2010, Mr Byatt, the respondent's General Manager Eastern Division, wrote to Mr Kyriakou reinforcing the requirement to gain a clearance from a medical practitioner before any return to his duties. Accordingly, he was provided with a further opportunity to comply with this direction. Mr Kyriakou was also provided an opportunity to obtain a clearance from his own doctor. 22On 21 July 2010, Mr Kyriakou indicated by email to Mr Byatt his agreement to attend his own medical practitioner (Dr Koutsoullis) and that he had arranged for an appointment that was scheduled for the 23 July 2010. 23On 22 July 2010, Mr Byatt forwarded a letter to Mr Kyriakou's doctor advising of the duties and physical requirements of a bus operator, relevant history concerning Mr Kyriakou, and sought advice as to his fitness to perform the full duties of a bus operator. Mr Kyriakou attended the scheduled appointment with Dr Koutsoullis on the 23 July 2010. Dr Koutsoullis subsequently advised STA that assessment of Mr Kyriakou's fitness for his employment was outside the scope of his expertise. Accordingly, he presented a list of specialists to whom Mr Kyriakou could be referred to make such assessment, one of those being Dr Keith Mayne. 24On 29 July 2010, Mr Byatt provided Dr Mayne with a letter containing the same information as previously provided to Dr Koutsoullis. The respondent organised an appointment for 16 August 2010 for Mr Kyriakou to attend Dr Mayne for assessment. 25On 13 August 2010, Mr Kyriakou advised Mr Byatt by email that he would not be attending the scheduled appointment with Dr Mayne and that he was "in the process of completing a full report and the reasons contained therein will become abundantly clear why I will not be attending. Upon completion of this report, I will forward you a copy forthwith". 26On 13 August 2010, Mr Kyriakou was formally advised of his "Notice of Summary Suspension" under cl 29 of the Transport Administration Staff Regulation 2005. The Notice advised that the appellant could appeal the suspension within 21 days. The reason for suspension was given as: Your failure to comply with an instruction to attend a medical appointment on Monday 16 August 2010 to determine your fitness for duty as a Bus Operator. 27Ms S Hatcher, Depot Manager Burwood, was appointed as the investigating officer in relation to Mr Kyriakou's suspension. Mr J Sinclair, the respondent's General Manager Southern Region, was nominated to review Ms Hatcher's findings and determine any appropriate penalty. 28On 19 August 2010, Ms Hatcher wrote to Mr Kyriakou, advising him that she had been appointed as the Investigating Officer as a consequence of his Notice of Suspension, and inviting him to respond within 7 days to an attached Form E1. The Form E1 stated: Charge 1 You breached Sections 4.4, 4.4i and 4.18 of the State Transit Code of Conduct when you failed to follow a direction to attend a medical appointment scheduled for 16 August 2010 to assess your fitness for employment. Particulars of Charge 1 (1) By letter dated 10 August 2010, you were directed to attend a medical appointment on 16 August 2010 with Dr Mayne, a specialist nominated by your doctor. This direction was reinforced in the email from Martin Byatt on 12 August 2010. (2) Further, as indicated in the letter dated 10 August 2010, and the email from Martin Byatt on 12 August 2010, you were paid administrative leave on the basis you would comply with the direction to attend the medical appointment. The letter dated 10 August 2010 also outlined discipline action may be taken against you if you did not comply with the direction. (3) By email dated 13 August 2010, to Martin Byatt, you outlined you did not intend to comply with this direction. (4) On 16 August, you did not attend the scheduled medical appointment. 29By letter of 9 September 2010, Mr Kyriakou was provided with an opportunity to attend a discipline inquiry with Ms Hatcher. Mr Kyriakou sought, and was granted by Ms Hatcher, five extensions of time in which to respond to the Form E1. By letter of 21 October 2010 to Ms Hatcher, Mr Kyriakou provided a lengthy written response to the Form E1. In the meantime, the respondent investigated some 37 allegations made by Mr Kyriakou against managers and other employees. By letter of 26 October 2010, Ms Phillips advised Mr Kyriakou that the outcome of the investigation was that his allegations were not substantiated. Mr Kyriakou was also provided with a copy of the respondent's report into the allegations. 30Ms Hatcher conducted an investigation into the allegations contained in the Form E1 issued to Mr Kyriakou on 19 August. Ms Hatcher found that the charge against Mr Kyriakou as set out in the Form E1 was "proven" and that Mr Kyriakou had not presented any mitigating circumstances. On 17 November 2010, Mr Sinclair determined that termination of Mr Kyriakou's employment was appropriate in the circumstances. 31Mr Sinclair contacted Mr Kyriakou by telephone to invite him to a meeting to discuss the outcome of Ms Hatcher's investigation and on Mr Kyriakou's request advised him verbally of the outcome: that his employment had been terminated, effective that day, as a result of the investigation. On 18 November 2010, Ms Hatcher forwarded to Mr Kyriakou a Notice of Punishment advising of his dismissal. 32After canvassing the evidence summarised above the Board proceeded to undertake a detailed analysis of the facts and make findings. The Board's main conclusions are at [311]-[315] of Bishop C's decision: [311] The Board considers that Mr Kyriakou's failure to comply with STA's direction to attend a medical assessment with Dr Mayne was quite unreasonable in all of the circumstances, constitutes serious misconduct, and left STA with no alternative but to suspend him and arrange for an investigation into his actions to be initiated. [312] The Board is satisfied that the investigation conducted by Ms Hatcher was procedurally fair. Mr Kyriakou was afforded every opportunity to respond, and indeed was granted five extensions of time over a (sic) in which to do so (altogether a period of 8 weeks) and offered a face to face disciplinary interview which was not taken up by him. Ms Hatcher found the misconduct proven and the determination of Mr Sinclair was that dismissal was the appropriate penalty to be applied for that misconduct. [313] Having carefully considered all the evidence the Board is satisfied that Mr Kyriakou did commit misconduct in refusing to comply with the lawful and reasonable direction of STA. The Board does not accept that sufficient reasons have been put forward by Mr Kyriakou that would in any way justify his refusal to comply with that direction. Further the Board considers that the misconduct committed was a very serious breach of STA's Code of Conduct and Mr Kyriakou's responsibility as an employee of STA. [314] The Board also considers that in all of the circumstances, the seriousness of the misconduct, as well as taking into account Mr Kyriakou's disciplinary history (2 Final Warnings, a First and Final warning, a 4 week regression in rank), that dismissal was the only appropriate disciplinary outcome under Clause 28(1) of the Regulation. [315] The Board declines therefore to intervene in the decisions of STA to both suspend and dismiss Mr Kyriakou from his position of Bus Operator. 33The Board ordered that the appeals be disallowed.