Matthew McMurray v The Transport Secretary on behalf of the State Transit Authority

Consideration

As set out above, the incident itself is not in contest. The parties agree upon what happened as set out above at [27]-[28]. However, the appellant and respondent have different views about the seriousness of the incident.
During the hearing of the matter, the appellant conceded that each of the particulars contained in the E1 Form set out above at [18] had been made out. Notably, in final submissions, the appellant conceded that the appellant "failed to maintain full and proper control of the vehicle" and his "actions were unsafe and in breach of State Transit policy and procedure."
The appellant provided his account of the incident at [21]-[29] of Ex A2: "On the night of the incident, 4 March 2020, I was rostered to shift DO19 driving Route 550. I have driven this route hundreds of times and I know the roads and I was driving to the conditions. I honestly didn't remember anything special about my shift on 4 March 2020 when Melissa Eames or Kate Moore (the investigating officer) asked me. When I was shown the CCTV footage it was clearly a very quiet night on the roads with hardly any traffic or passengers because of the corona virus situation. Obviously, I was listening to my digital/analogue radio as I usually do. I tend to listen to talk-back radio because they also give regular traffic updates and people phone in with comments if anything is happening on the roads. On this particular night I can't remember exactly what I was listening to. I do know that all I could think about at that time was my family in Laos because of the virus and the impact across the world. I was really nervous about being able to get out of Australia and spend time with the children and my partner in Laos as I had planned. We didn't know we were pregnant until my partner told me from Laos at the end of February. I was due to start annual leave and fly out on 23 March and return with them in April after 5 weeks' leave. As all the news reports kept changing and nobody really seemed to know what was happening with the corona virus, I do know I was on "high alert" for any mention of the virus and spent time listening to the radio to see if I could pick up any news about what was going on. I was getting very nervous as some countries were already talking about shutting their borders. I really can't remember what I was listening to as the radio was playing at fairly low volume behind me and I was concentrating on driving. I can't remember exactly what made me pick up the radio to listen more closely but when I was forced to think about it later due to the investigation, I remembered I thought they were saying something about the Coronavirus. Because of my circumstances, any mention of the virus was really important to me as I needed to know that I was going to be able to take my leave and travel to Laos to be with my family and pregnant partner. On the CCTV footage I can see that the road is pretty empty and I only have about four passengers. From watching the footage, I can see that when I think I hear something which may be an update about the virus, I pick up the radio and hold it to my ear for 22 seconds, and then I reach back and put it down. I keep my eyes on the road the whole time and stay in the middle of my lane driving to the conditions, at about 38kms an hour. One of the passengers is standing and leaning on a post while he is playing with his mobile phone. He isn't holding on to anything other than the phone but throughout he doesn't have to lurch or sway or grab onto anything because I remain driving smoothly at a constant and safe speed with my eyes on the road. I finished my shift without incident and thought no more about it until 17 March 2020 when I had a meeting with Melissa Eames. At the meeting she handed me a notice of suspension without pay. Three hours after the meeting the airline cancelled my flight due to corona virus. Laos had shut its borders and so did Australia. My family have been stranded in Laos since that time.. I missed Jet's third birthday which was in March and our baby is due in September and we don't know if I will be able to get to them for the birth. I talk to them on Skype several times a day but it isn't the same as being with them. I also now don't have any income because I have lost my job. I worry about what will happen in the future."
Although the appellant was experiencing dislocation from his family at the time of the incident with uncertainty about the future in view of the coronavirus pandemic, this does not excuse his conduct in picking up the radio to, on his account, maybe, listen to any news whilst he was driving a bus in-service.
Although I accept the appellant's evidence that the conditions were quiet and he was maintaining a constant speed during the incident, he was driving the vehicle with one hand and this compromised the safety of himself, the passengers and others using the road. The fact that a situation did not arise to test whether the appellant's capacity to operate the bus was diminished by his actions does not detract from this. I also find that the action had the potential to impact negatively upon the reputation of the respondent. As the appellant said in his own evidence, "It was a bad look for sure."
Given the nature of the respondent's functions and its responsibility to the public to provide services that are safe, I consider the action taken by the appellant was serious enough to warrant disciplinary action and consideration to be given to the imposition of a punishment.
For completeness, I find that the particulars of the E1 Form have been made out and that the appellant failed to maintain full and proper control of the vehicle by his actions and that this was unsafe and in breach of State Transit policy and procedure. In doing so, I note and accept the appellant's submission that there are varying degrees of unsafeness or failing to maintain full and proper control of a vehicle. I also find that whilst this was a serious safety breach, it is not at the worst end of the spectrum.
There was some debate in the hearing about whether the policy titled, State Transit Authority's Mobile Phone and Devices Policy When Driving Buses (Including other driving distractions) (the Mobile Phone and Devices Policy) had been breached by the appellant and or whether the respondent had done enough to ensure that the appellant knew of that policy and its applicability to the use of personal radios. The appellant submitted that the respondent was applying a "zero tolerance" approach to his conduct in circumstances where it had not been made clear enough to the appellant that his behaviour would result in his dismissal.
While I agree that there is some ambiguity over the applicability of the Mobile Phone and Devices Policy to the use of personal radios, the appellant had responsibility to drive safely and have full and proper control of the vehicle. These are matters provided for in the Transport Code of Conduct which the appellant said he was aware of. In particular, section 3 of the Transport Code of Conduct relevantly provides: "You are responsible for familiarising yourself with agency policies and procedures, and complying with them." "You need to be aware that the reputation of the transport agencies can be affected by your actions at work ….." "You must: - treat our customers and colleagues fairly, consistently and with respect; - behaviour in a lawful, professional and reasonable manner and always act in the best interests of Transport; - comply with agency policies and procedures,…….. - understand the duties, responsibilities and accountabilities of your role and perform these safely, honestly, courteously and fairly; - make impartial decisions that demonstrate your agency's values and promotes confidence in the integrity of public administration."
The appellant's actions were unsafe and not in the best interests of the respondent.
Section 9 of the Transport Code of Conduct relevantly provides: "We prioritise safety, and are committed to providing a safe workplace and safe culture for our staff, customer, suppliers and visitors……… You should consider safety in everything you do. We all play a part in making sure that, as far as reasonably practicable, our work environment is safe and free from hazards. This includes ensuring our customers experience safe, clean and reliable passenger services……. As a staff member, you are required to: - Take reasonable care of your own health and safety; - Take reasonable care that your acts or omissions do not adversely affect the health and safety of other persons; - Comply, so far as reasonably able, with any reasonable safety instruction; and - Co-operate with any reasonable agency policy or procedure relating to health or safety at the workplace that has been notified to you."
It follows from the findings in respect of the incident at [45] above that the appellant also breached section 9 of the Transport Code of Conduct and that is enough. It is not the case that the respondent needs to spell out every act which may compromise the safety standards of its operations in a specific policy for compliance with the Transport Code of Conduct to be required. It is a fundamental and implicit aspect of the role of Bus Operator that the functions are undertaken in a safe manner and in a way that represents the respondent appropriately to the public. I reject any argument that the appellant's responsibilities are diminished by ambiguity in the Mobile Phone and Devices Policy or because of a lack of specific training on that policy or the issue at hand.
I have considered the appellant's argument that the he was denied procedural fairness by a "zero tolerance" approach by the respondent below.
In determining the appropriateness of the punishment in respect of the incident, the Commission must consider all of the relevant circumstances. In this matter, this includes, the nature and seriousness of the conduct involved in the incident itself as set out above, the circumstances surrounding the conduct including the appellant's explanation for it, the level of remorse and or contrition demonstrated by the appellant, the appellant's employment record and history, his personal circumstances and the impact any punishment will have upon him.
During the investigation process and throughout the proceedings, the appellant expressed remorse and contrition with respect to the incident. For example, during his interview with Ms Moore he stated: "I'd just like to make everyone aware that I'm sincerely sorry and deeply regret my actions. I vow not to do this sort of thing again. And just drive safely with the company and employees and passengers at the forefront of my driving."
The appellant expressed similar sentiments in his written reply to the allegations and in his evidence in the proceedings before the Commission.
However, the appellant's evidence with respect to whether he believed his actions created a safety risk were inconsistent. For example, during the interview with Ms Moore, the appellant stated the following in answer to a question whether he agreed that his actions were unsafe: "Personally I don't think it was unsafe at the time. And I never once felt uncomfortable. On reflection of doing the movement because I honestly can't even remember picking up the radio. And yes I can understand that can be viewed a little bit unsafe. But yeah. You probably could view it as anything if someone wanted to."
Further, in his written reply to the allegations contained in the E1 Form, as set out above at [20], he stated: "I personally feel as a professional driver that my action can be viewed in a bad light and it was the wrong thing to do but I never felt in any way unsafe or that I wasn't in full control of the vehicle, but have now come to the conclusion ,upon reflection it is unsafe , and as part of this process I would like to request driver retraining and will remove my personal radio out of service as this is a major distraction for me at this time ."
Before the Commission, the appellant gave the following evidence while being cross-examined with respect to the effect of him picking up the radio and driving the bus with one hand (Tcpt, 20 October 2020, p 86 (15) - p 87 (21)): "Q. You don't accept the proposition that I put to you earlier, that you didn't have proper control of the vehicle? A. No, I think I had proper control of the vehicle. I was in control of the vehicle. Q. Proper control? A. Well, maybe if you're looking at it - depends on how you're looking at it, I suppose, but no, I don't think so. It doesn't look good, I admit that. Q. It's not a question of it looking good? A. No, I know. Q. It's much more serious? A. I know it's much more serious. Q. It's not a question of it looking good, Mr McMurray. It's a question of the seriousness of your conduct? A. Yes. Q. It's not whether it looks good or not? A. Yes. Q. Do you accept that? A. Yes. Q. What I'm putting to you is that if an incident had occurred, the risk of an accident happening would have been heightened because you didn't have two hands on the steering wheel and you were distracted? A. I don't agree with that. Q. You don't agree with that? A. No. Q. So if a car had swerved in front of you accidentally-- A. I would've braked. Q. --you would have-- A. I would have braked. Q. --your evidence is - just let me finish before you answer the question? A. Sorry. Q. And this is to help you? A. Sorry, yes. Q. So your evidence is that had, for example - and I know this is hypothetical - had a car swerved in front of you, you would have been able to deal with that incident in exactly the same way had you had two hands on the steering wheel and weren't distracted by the radio? A. I believe so, yes. Q. That's your evidence, is it? A. Yes."
Further the appellant gave the following evidence with respect to a conversation he had at a meeting held with Mr (Domenic) Larosa on 31 March 2020 at [54] of Ex A2: "We had a heated conversation during the meeting. Domenic asked me whether I would be in a good position to make an emergency stop and I stupidly replied that I had "good reflexes". This was just a reaction in that moment that I now regret saying."
Having considered all of the evidence, I have concluded that while the appellant is genuinely remorseful for what he did and understood it was not a "good look", he does not believe that he compromised the safety standards of the respondent during the course of the incident. This is concerning and demonstrates a lack of insight into his obligations as a professional bus driver. Without insight into how his actions might have impacted upon his capacity to deal with an unexpected change in driving conditions, I am unable to conclude that he would refrain from other behaviour that might compromise safety standards in the future.
The appellant had been employed by the respondent for about six and a half (6.5) years when his employment was terminated.
As set out above at [4], the appellant had received two previous warnings with respect to his employment prior to the incident as follows: 1. The appellant received a warning by way of letter dated 8 June 2018 in respect of three (3) "collisions/incidents" since his last performance review and retraining, including "two (1) Responsible or Contributory Negligence collisions/incidents or passenger injuries" (the First Warning). 2. A Final Warning was issued on 4 November 2020, after the appellant was issued with a penalty notice for travelling more than 20 kilometres an hour over the speed limit in one of the respondent's buses (the Final Warning).
In respect of his employment record, the appellant gave the following evidence at [55]-[60] of Ex A2: "During my 6 years with STA I can recall a number of occasions where I had some discussions about performance and collisions and had some re-training after which I was always deemed as a competent driver. This was mostly in the first few years when I was a trainee and a fledgling bus driver. Other than this, the only other serious matter on my record is the Traffic Infringement for speeding for which I received a fine, lost 3 demerit points and got a final warning in December 2019. See attachment of respondent's submission Statement of Kate Moore marked KM11. In a year I would average between 1700 - 2000 hours driving in a Bus. Over 6 years as an STA employee and a Bus Operator I have probably driven, at a reasonable estimate, nearly 11,000 hours. Both as an employee and a Bus Operator I have only had 2 instances that Management has deemed serious enough for an E1 (letter of allegations to be answered) - one for the traffic infringement in September 2019; and now for picking up a radio whilst driving. The Traffic Infringement on 21 September 2019 occurred because I was thinking of my son. I put this in my response to the E1 at the time. Attached and marked MM6. I was concerned about Jet's surgery in mid-November and worried about whether he would survive or not. I remember it to this day. I was nonetheless immediately remorseful and deeply regretted my actions. I broke the law and was consequently fined by the police. I recall that during the investigation process there was a request that I attend the office to discuss the matter. I was working on night shift at the time and my times didn't line up with the times management were available. It just didn't line up with my family time as well. For that reason there was no meeting to discuss but I did respond to the issue in full in my written response."
In actual fact, the appellant had received a formal warning in respect of his collision history in mid-2018. It was not issued at the beginning of his career, but four and a half (4.5) years into his six and a half (6.5) year career with the respondent, albeit almost two (2) years before the incident.
With respect to the appellant's explanation for the speeding infringement leading to the Final Warning, he gave evidence that his son had been diagnosed with a major heart condition that required corrective surgery which took place during a hospital admission commencing on 21 November 2019. I accept that the appellant was very stressed during this period of time and concerned for his son's welfare and this impacted upon his capacity to concentrate when he was caught speeding. I also accept the appellant's evidence that the conduct was not deliberate.
Objectively, travelling more than 20 kilometres an hour than the designated speed limit on a pubic road is a serious driving offence, even if it is not deliberate. I am unable to find that the seriousness of this conduct was lessened by the fact that the speeding took place in a zone where there were variable speed limits for cars and larger vehicles.
It goes without saying that even during periods of extreme personal stress, there is an obligation on road users to obey the road rules for their safety and that of the general public. This is especially the case when the vehicle being driven is a bus. This is a reasonable expectation of an employer of a professional driver. It was appropriate that the Final Warning was issued, even though it was put that the appellant drives between 1,700 and 2,000 hours a year.
I find that the First Warning and Final Warning are relevant to the Commission's consideration of the appropriate penalty to impose. Both warnings related to the appellant driving the respondent's vehicles in an unsafe manner and the Final Warning was issued just a few months before the incident.
I have also taken into account and accept the evidence of Ms Moore that she had a positive working relationship with the appellant and that she regarded him as a good employee. There was also relevant evidence of the appellant receiving commendations in 2014 and 2017 for excellent customer service.
I agree with the appellant's submission that the decision to dismiss him is most serious and will be life changing for him and it will not only impact on him, but also his young family. We are in the middle of a global pandemic and this has had a significant economic impact in the State of New South Wales. The appellant has completed an apprenticeship as a maintenance engineer, although it is accepted that he will face challenges finding alternative employment in the current climate. At the time he signed his statement the appellant had two children aged three (3) and one (1) and his partner was pregnant with their third child.
In late January 2020, the appellant's partner and children travelled to Laos for a holiday to see family. The appellant had intended to join them for a period of five weeks commencing in March and returning at the end of April 2020. However, the appellant has not joined his family and gave evidence that, "While my family was in Laos and I was still here working and waiting to join them, the whole COVID-19 situation took off in February 2020 causing further turmoil and distress or me and my family..": Ex A2 at [19].
The appellant referred the Commission to the matter of Dewi El Khoury and State Transit Authority Division of the New South Wales Government Service [2012] NSWTAB 28. In that matter, Tabba C decided to give the appellant, a bus driver, a second chance, after she was found to have used her mobile phone whilst stationary at a traffic light. The appellant also referred to the decision in McAuliffe v The Transport Secretary on behalf of the State Transit Authority [2020] NSWIRComm 1017 where the Commission as currently constituted reinstated a bus driver who used a mobile phone in similar circumstances as the driver in El Khoury.
It is difficult to compare such cases give the plethora of factors that may be relevant to the Commission's determination of an appropriate penalty. Ultimately it is a careful consideration of the particular facts and circumstances of the case that will be determinative of the proper outcome. In that regard, I note that in both cases referred to by the appellant, the drivers were not on a Final Warning when the relevant incidents occurred. Indeed, in both cases, there was no evidence of the respondent having previously taken disciplinary action against the drivers. In McAuliffe, the appellant was described as having a good driving record: at [22] and [76]. These decisions were determined on a different factual basis to the matter at hand and do not assist the appellant's case for reinstatement.
It was argued that the appellant was denied procedural fairness during the process in that the decision to terminate his employment was effectively pre-determined or that the respondent had erroneously taken a "zero tolerance" approach to the conduct. Although there was some evidence to support this proposition, this was denied by the respondent's witnesses. Even if there were a "zero tolerance" approach taken by the respondent, I am not persuaded that it would have made a difference had this not been the case. In any event, the appellant was given an opportunity to put all relevant matters to the Commission through this appeal and these have been duly considered. The Commission is not obliged to uphold an appeal because there has been a denial of procedural fairness in the process leading to the termination: s 100C (3).
Having considered all of the circumstances of this matter, I find that it is appropriate that the appellant's employment is terminated. The incident itself constituted misconduct in that it was contrary to the Transport Code of Conduct, in that it could have caused reputation damage to the respondent and moreover, compromised the respondent's safety standards. Although the incident could not be viewed as being at the worst end of the spectrum of employee misconduct, the circumstances of this case are such that termination is none the less warranted.
In particular, I note that the appellant should have been on high alert that his employment would be terminated if he was found driving the respondent's bus unsafely after he was issued with the Final Warning. The appellant's evidence demonstrates that although he was remorseful for the incident, he lacked insight into how it created a safety risk. In these circumstances, and considering the protective function of the Commission in exercising its function in these proceedings, the safety of road users must take precedence over the personal circumstances of the appellant. Accordingly, I have decided that the appropriate punishment for the appellant's conduct is dismissal.
For these reasons, I dismiss the appeal.

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Judgment (8 paragraphs)

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Legislation Cited (1)

Cases Cited (5)