Mr Gerard McAuliffe was 59 years old and had worked with State Transit Authority (the respondent) as a Bus Operator for approximately 12 years when his employment was terminated on 11 July 2019. Mr McAuliffe's employment was terminated as a result of him using his mobile phone twice whilst carrying passengers on a bus route on 7 June 2019.
Mr McAuliffe has appealed the decision to terminate his employment to this Commission pursuant to section 98 of the Industrial Relations Act 1996 (NSW) (the Act).
For the reasons set out below, I have allowed the appeal and have ordered that the Mr McAuliffe be re-instated to his position, without back pay.
[2]
Background
Mr McAuliffe commenced employment with the respondent as a full-time Bus Operator in May 2007 working out of the Waverley Depot (Depot).
When Mr McAuliffe commenced his employment, he was trained in the requirements around mobile phone use during his induction.
At 7pm on 6 June 2019 Mr McAuliffe was contacted by the respondent and asked to work an unplanned shift the following day. He initially declined the shift as he had a doctor's appointment scheduled for 8:45 am the following day for the purpose of obtaining a medical authority required by the respondent for him to do his job. Later Mr McAuliffe decided to accept the shift and not attend the medical appointment given he did not require the medical clearance until 16 June 2019.
Mr McAuliffe commenced work on 7 June 2019 at 5:45 am. He gave evidence that the medical centre was due to open at 8am. At or around 8:15 am Mr McAuliffe commenced a bus trip known as route 400. At 8:20 am and 8:25 am Mr McAuliffe attempted to contact the medical centre to cancel his appointment whilst conducting the bus service for the respondent. In making each phone call, Mr McAuliffe took the following steps:
1. stopped the bus at a bus stop and opened the doors to allow passengers to board or depart;
2. applied the handbrake;
3. got out of the driver's seat and opened the cabin door;
4. stood with one foot in the aisle and one in the driver's cabin; and
5. took out his mobile and made the phone call.
On the second occasion Mr McAuliffe was successful in speaking to a person from the medical centre and cancelled his appointment. That call lasted about 20 seconds and Mr McAuliffe sits in the driver's seat while he terminates the call. While making these phone calls, Mr McAuliffe's attention is at times diverted away from the travelling customers.
Immediately following the incident, a complaint was made by another employee of the respondent who was on the bus at the time. Later that day Mr McAuliffe returned to the Depot and was spoken to by Ms Hatcher about the complaint. During the conversation Ms Hatcher pointed out that the bus needed to be in neutral and turned off before a phone call could be made. Ms Hatcher effectively cautioned Mr McAuliffe about what had happened, and the two agreed it would not happen again.
On 18 June 2019 the respondent commenced a disciplinary investigation into what occurred on 7 June 2019.
On 1 July 2019, Mr McAuliffe returned from work after a period of annual leave. It was arranged that he would immediately report to the Depot Office and meet with Mr Mark O'Connor, Asset Security Coordinator, who had been asked to conduct a disciplinary investigation into the allegations against Mr McAuliffe relating to the phone calls he made on 7 June 2019. When Mr McAuliffe attended on 1 July 2019 he was:
1. suspended without pay and has not since returned to the workplace;
2. provided with a "Form E1" document which set out the allegations, including that on 7 June 2019 he acted in breach of:
1. reg 97 of the Passenger Transport Regulation 2017 (Passenger Regulation);
2. rule 300 of the Road Rules 2008;
3. section 3 of the Transport Code of Conduct; and
4. clause 3.2 of the Telephone, Fax and Mobile Telephone Procedures (Telephone Procedures); and
1. interviewed with respect to the allegations.
The reference to rule 300 of the Road Rules 2008 was in error. The Road Rules 2008 have been superseded by the Road Rules 2014. However, rule 300 is the same in both versions and provides:
300 Use of mobile phones
(1) The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless -
(a) the phone is being used to make or receive an audio phone call or to perform an audio playing function and the body of the phone -
(i) is secured in a mounting affixed to the vehicle while being so used, or
(ii) is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press any thing on the body of the phone or to otherwise manipulate any part of the body of the phone, or
(b) the phone is functioning as a visual display unit that is being used as a driver's aid and the phone is secured in a mounting affixed to the vehicle, or
(c) the vehicle is an emergency vehicle or a police vehicle, or
(d) the driver is exempt from this rule under another law of this jurisdiction.
Maximum penalty - 20 penalty units.
The Dictionary of the Road Rules provides the following definition of "park":
"park, in Part 12 and for a driver, includes stop and allow the driver's vehicle to stay (whether or not the driver leaves the vehicle)."
Clause 97 of the Passenger Regulation provides as follows:
97 Driver to remain in bus
The driver of a bus must not, without reasonable excuse, leave the driving seat of the bus.
Maximum penalty: 5 penalty units.
Section 3 of the Transport Code of Conduct is titled Staff Responsibilities and 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;
- behave in a lawful, professional and reasonable manner and always act in the best interests of Transport;
- comply with agency policies and procedures, as well as relevant legislative and industrial requirements that apply to you;
…."
On 2 July 2019 Mr McAuliffe submitted his response to the allegations as set out in the Form E1. In his written response, Mr McAuliffe admitted the alleged conduct, informing the respondent that he:
1. was attempting to cancel a medical appointment;
2. had committed to Ms Hatcher not to repeat the mistake again; and
3. "truly believed" that he was following the respondent's procedures.
He specifically addressed the allegations contained in the E1 as follows:
1. reg 97 of the Passenger Regulation
"I never left the drivers cabin which I stood up."
1. Road Rules 2008 rule 300
"The bus was stationary and parked"
1. section 3 of the Transport Code of Conduct
"Section 3 is rather general and I honestly believe I was adhering to the Code of Conduct."
1. clause 3.2 of the Telephone Procedures
"This clause relates to work issued Telephones, I was using my personal mobile telephone and at the time I was stationary and correctly parked."
During the investigation, the alleged breach of the Telephone Procedures was withdrawn and a recommendation was made by Mr O'Connor in his investigation report that the scope of the Telephone Procedures be changed to clarify that the policy applies in respect of the use of telephones, whether they are issued by the respondent or not.
Mr O'Connor finalised his investigation and found that the remaining allegations against Mr McAuliffe were proven.
On 10 July 2019 Mr Brendan Rabbitt, the decision maker met with Mr McAuliffe and invited him to make submissions regarding an appropriate punishment.
On 11 July 2019 Mr McAuliffe was called to another meeting with Mr Rabbitt and advised that he had been dismissed.
Prior to the termination of his employment, Mr McAuliffe had not previously been the subject of any disciplinary action. Indeed, Ms Selina Hatcher, Depot Director Waverly gave evidence in the proceedings that Mr McAuliffe had a very good record in comparison to other Bus Operators and was an asset to the respondent as a bus driver: Tcpt, 3 December 2019, p 23 (7)-(12).
[3]
The Evidence
The respondent relied upon the following witness evidence before the Commission:
1. Statement of Ms Amelia Fraser dated 27 September 2019. Ms Fraser was the employee of the respondent who made the complaint in respect of Mr McAuliffe using his phone whilst the bus was in service.
2. Statement of Ms Selena Hatcher dated 1 November 2019. Ms Hatcher is the Depot Director of Waverly and originally raised the complaint with Mr McAuliffe with respect to him using his mobile phone whilst his bus was in service.
3. Statements of Mr Mark O'Connor dated 30 September 2019, 31 October 2019 and 11 November 2019. Mr O'Connor was the investigating officer. He completed an investigation report that was relied upon by Mr Rabbitt in making his decision to terminate the employment of Mr McAuliffe.
4. Statements of Mr Rabbitt dated 30 September 2019 and 31 October 2019. Mr Rabbitt was the decision maker in respect of the termination of the employment of Mr McAuliffe.
Mr McAuliffe relied upon the following witness evidence:
1. His own statement dated 21 October 2019.
2. Statements of Mr David Babineau dated 20 August 2019 and 22 October 2019. Mr Babineau is the Secretary of Tram and Bus Division of the Rail, Tram and Union of NSW. I note that some of Mr Babineau's evidence related to another disciplinary matter involving an employee of the respondent who engaged in using a mobile phone. Ultimately Mr McAuliffe did not seek to rely upon that evidence.
All of the witnesses referred to above were cross-examined before the Commission. A range of documents were also relied upon by the parties and rather than set those out here, I have referred to them in this decision where relevant.
[4]
The respondent's submissions
The respondent filed written submission on 30 September 2019 and 11 November 2019 and delivered oral submissions at the conclusion of the hearing of the matter.
In summary, the respondent submitted that Mr McAuliffe engaged in serious misconduct when he used his phone on 7 June 2019, breaching the legislation and Transport Code of Conduct as set out above at [12]-[15]. The respondent submitted that the conduct of Mr McAuliffe warranted dismissal arguing:
1. Mr McAuliffe did not have reasonable cause to leave his seat and make the phone calls;
2. Mr McAuliffe's arguments that he did no place anyone at risk and he thought he was doing the right thing are not relevant;
3. The bus was not parked because the engine was running and continued to be in operation;
4. By making the calls, Mr McAuliffe did little if anything at all for the public image of the respondent and maintain public confidence in the respondent;
5. The respondent is entitled to expect compliance with its express workplace policies and procedures;
6. Mr McAuliffe's conduct was negligent and reckless and the fact that there was no incident or that no member of the public was in danger is irrelevant; and
7. Mr McAuliffe's submission that he misunderstood the respondent's requirements is without merit, noting that he received training with respect to the use of mobile phones, a number of safety alerts on the topic and the "Big Blue Book" which included a section on the use of mobile telephones.
The respondent also referred in their submissions to the matters of Harbour City Ferries Pty Ltd v Mr Christopher Toms [2014] FWCFB 6249 (Harbour City) and Feldman v State Transit Authority [2014] NSWIRComm 1017 (Feldman) which I have considered below.
[5]
Mr McAuliffe's submissions
Mr McAuliffe filed written submission on 22 October 2019 and delivered oral submissions at the conclusion of the hearing of the matter.
In summary, Mr McAuliffe submitted to the Commission:
1. At the time of the incident, he genuinely believed he was correctly following the respondent's procedures on mobile phone use, at least partly explainable by him not receiving training for some 12 years on the use of mobile phones while driving.
2. There was no safety risk posed to any passenger or member of the public.
3. There was no breach of the Road Rules as alleged because:
1. the vehicle was parked, with the doors open and the handbrake applied, in a bus zone; and
2. he was not driving the bus at the time of the call, and was in fact not in the driver's seat at all.
1. He had a reasonable excuse to leave the seat at that time, with the vehicle parked in a bus zone, with the doors open and the handbrake applied and therefore there was no breach of the Passenger Regulation.
2. As there was no breach of any law, and no mobile phone procedure relied on, the allegation that he breached the Code of Conduct falls away.
3. He has shown contrition and remorse for what occurred, he has learnt his lesson and there is no risk of a repeat of the conduct.
4. He has a demonstrated history of compliance with policy and procedures during his employment with the respondent.
Mr McAuliffe did not press an argument that he had been treated differently to another employee in similar circumstances.
Mr McAuliffe ultimately submitted that his appeal should be allowed, the respondent's decision quashed and the respondent ordered to reinstate him with full back pay.
[6]
Applicable law and principles
The Commission's powers in a disciplinary appeal of this kind are contained in Ch 2 Pt 7 of the Act, which relevantly provides as follows:
98 Right of appeal
(1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer.
…
100C Decisions with respect to appeals
…
(2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.
(3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission:
(a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or
(b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer.
(4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought.
100D Orders by Commission with respect to payment of salary and continuity of employment
(1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may:
(a) if the employee has paid a fine imposed by the employer or his or her pay has been forfeited - order the employer to repay the amount of any such fine or forfeited pay, and
(b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and
(c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer.
(2) Any such order by the Commission must be given effect to by the employer.
(3) Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment.
In public sector disciplinary matters, the Commission is required to conduct a fresh hearing of the evidence to determine the facts based on the evidence. That is to say, I am not to simply conduct a review of the respondent's decision. Rather, as set out in the decision of Marroun v State Transit Authority (2017) 96 NSWLR 295 at [35]:
In colloquial terms, an appeal by way of fresh hearing means that the appellant body "stands in the shoes" of the original decision-maker. Where there is, as here, a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed. Generally, it is assumed that the appellant body has the same powers as the original decision-maker, no more want and no fewer. One basis for the inference is a use of the term "appeal" to describe what is in substance a fresh hearing.
The Commission's task in these proceedings, is to first determine whether the relevant misconduct occurred. The second step is to determine whether, in the Commission's view, the punishment is appropriate: see Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86 at [54].
I further note that Marroun confirmed the proposition that post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven. Accordingly, if the Commission allows the appeal the Commission may consider post-decision events or conduct in determining whether some other form of disciplinary action is appropriate: see Maritime Services Board v Murray (1993) 52 IR 455.
I note that in exercising its jurisdiction in public sector disciplinary decisions, the Commission is exercising a protective function: see Marroun at [21] and Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 at [173].
[7]
Consideration
It is necessary for me to step into the shoes of the decision maker, Mr Rabbit to consider the allegations against Mr McAuliffe and decide whether they can be made out. I am to decide whether on 7 June 2019, Mr McAuliffe engaged in misconduct by failing to comply with the relevant legislative requirements whilst operating a bus in-service and breached the Transport Code of Conduct. This is a fresh hearing and I am to take into account the evidence that was put before the Commission by the parties in the proceedings.
As stated above, the main factual matters that underpin the allegations are not in dispute, however, the characterisation of that conduct was contested.
[8]
Did Mr McAuliffe breach rule 300 of the Road Rules 2014, clause 97 of the Passenger Regulations and the Transport Code of Conduct?
Rule 300 of the Road Rules 2014 (see [12] above) prohibiting the use of a mobile phone relevantly provides that the "driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked…." Mr McAuliffe submitted that he had not breached rule 300 because:
(a) the vehicle was parked, with the doors open and the handbrake applied, in a bus zone; and
(b) he was not driving the bus at the time of the calls, and was in fact not in the driver's seat at all.
The respondent argued that Mr McAuliffe was the driver of the bus at all relevant times and that the bus was not parked. They argued that the phrase "parked" should be given its ordinary meaning in the context in which it appears in rule 300 of the Road Rules.
In my view, Mr McAuliffe remained the driver of the bus when he made the two phone calls. He was the person with control of the vehicle, with the engine still running, even if he was not seated in the driver's seat. He had stopped the bus at the relevant bus stops, but he did not do all that was required to allow the vehicle to stay, as the definition of "park" in the Road Rules requires: see [13] above. Accordingly, Mr McAuliffe's conduct in making the phone calls was in breach of rule 300 of the Road Rules 2014. For completeness, I find that the reference during the investigation to the Road Rules 2008 instead of Road Rules 2014 is of no consequence. Ultimately, Mr McAuliffe knew what was alleged against him.
Mr McAuliffe argued that he had not breached clause 97 of the Passenger Regulations which requires that a bus driver will not leave their seat without "reasonable excuse": see [1] above.
The reason for the applicant removing himself from the seat, namely to make phone calls to cancel his medical appointment, does not in my view constituted a reasonable excuse, particularly given the engine of the bus was running and passenger's remained on the bus. Accordingly, Mr McAuliffe breached clause 97 of the Passenger Regulations on the two occasions he left his seat to make the phone calls on 7 June 2019.
The investigation report of Mr O'Connor relied upon by Mr Rabbitt, provided that the following parts of "3. Staff Responsibilities" of the Transport Code of Conduct were relevant to Mr McAuliffe's conduct:
You must:
1. treat our customers and colleagues fairly, consistently and with respect;
2. behave in a lawful, professional and reasonable manner and always act in the best interests of Transport; and
3. comply with agency policies and procedures, as well as relevant legislative and industrial requirements that apply to you.
Mr McAuliffe submitted that there had been no breach of the Code of Conduct as there was no breach of any law, and no mobile phone procedure relied on by the respondent. It follows from the findings above that Mr McAuliffe breached of the Code of Conduct, particularly with respect to points (2) and (3) above.
[9]
Was the punishment appropriate?
Having made the relevant findings with respect to the conduct of Mr McAuliffe on 7 June 2019, I am required to consider whether or not the punishment that was imposed by the respondent was appropriate in all of the circumstances.
In this matter the most serious penalty that was available to the respondent has been imposed, namely the dismissal of Mr McAuliffe from his position after 12 years of employment.
Although I have made findings that the applicant did indeed breach the Road Rules and Passenger Regulations as well as the Transport Code of Conduct it is necessary to consider the nature and seriousness of these transgressions in determining the appropriate punishment.
In considering the appropriate outcome in public sector disciplinary appeals, the Commission is exercising a protective function. In this regard I note that the Transport Administration Act 1988 provides at section 20A that:
"(1) The principal objectives of the State Transit Authority are:
(a) to operate efficient, safe and reliable bus services and Newcastle ferry services, and
……….
(c) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, and
……
(2) Each of the principal objectives of the State Transit Authority is of equal importance."
(my emphasis)
Referring to the matter of Feldman, the respondent submitted that State Transit's credibility and reputation as a provider of public transport in New South Wales requires employees to comply with all lawful directions including the Transport Code of Conduct and that the respondent is entitled to expect compliance with its express workplace policies and procedures. I note also the evidence of Mr Rabbitt that the respondent had made no apology for its position that use of a mobile phone while driving will be considered serious misconduct which may result in dismissal: Tcpt, 4 December 2019, p 22 (46) - p 23 (8).
I agree with the respondent that it has a legitimate interest to ensure employees do not act in a manner that might bring it into disrepute. However, whilst the respondent is entitled to expect compliance with its workplace policies and procedures, this does not mean that every transgression will justify the termination of an employee's employment. Indeed, Mr Rabbitt confirmed that it was not the position of the respondent that every use of a mobile phone by a Bus Operator will result in dismissal and it will depend on the circumstances of the case being considered: Tcpt, 4 December 2019, p 18 (35) - (41).
The evidence before the Commission was that when Mr McAuliffe made the phone calls, the bus was secure with the handbrake engaged and the doors open. When the doors of the bus are open, an additional "accelerator interlock" break is engaged. This is the way a bus is usually engaged when passengers are alighting and boarding the bus. For the bus to move in these circumstances there would need to be multiple system failures. On both occasions Mr McAuliffe made the phone calls, the bus was stationary and pulled off the road in a bus stop.
Evidence was adduced before the Commission in respect of the likelihood of a multiple system failure occurring in these circumstances. Ms Hatcher gave the following evidence (Tcpt, 3 December 2019, p 20 (22)-(35)):
Q. You saw on the CCTV that Mr McAuliffe was out of the driver's seat when he made the call?
A. Yeah, I saw one foot out of the cabin, yes.
Q. And you saw that he had applied the handbrake?
A. I did.
Q. And you saw that the doors were open and an interlock brake was also applied?
A. Yes, passengers were boarding, yes.
Q. And based on what you saw, you were comfortable that there was no risk of the bus moving while he was standing?
A. Yes.
Mr O'Connors gave evidence with respect to the likelihood of multiple system failures occuring (Tcpt, 3 December 2019, p 70 (15)-(37)):
Q. And you found in your investigation that the bus could not have moved unless there were multiple system failures?
A. Yes.
Q. Those system failures you're referring to are the handbrake, that's one?
A. Yes.
Q. And the interlock brake?
A. And the front door interlock brake, the accelerator interlock brake which is also connected to the front door.
Q. So unless both of those brakes failed, the bus couldn't have moved?
A. They all are activating the same braking system but, as I said, one is the mechanical lever that controls the pneumatic controls. The other two are electrical systems. The front door interlock only works on the front door, so it locks the brakes on until the driver taps it. So even once the doors are closed and the front door - both door interlocks are closed and the handbrake is released, the bus still will not move until you tap the accelerator on an
OC500 bus.
Q. And there is an extremely low chance of both of those brakes failing at the same time?
A. Very low but it does occur.
Mr Rabbitt gave the following evidence before the Commission while under cross-examination (Tcpt, 4 December 2019, p 10 (44) - p 11 (92)):
Q. That wasn't my question. My question was there were two braking systems applied at the time he made the phone call. Those operate to mean that the bus can't move while he was on the phone?
A. Correct.
Q. And that's the way that buses operate when passengers are getting on and off. Those braking systems ensure the bus doesn't move while passengers are getting on and off?
A. Correct.
With respect to the safety risk associated with Mr McAuliffe's conduct, Mr Rabbitt gave the following evidence (Tcpt, 4 December 2019, p 11 (16) - p 12 (9)):
Q. What was the safety risk that you're referring to?
A. So the safety of customers boarding and alighting the bus. He had a responsibility to them to ensure that they could board and alight safely and attending to their needs. For example, there could be a customer with accessibility issues. By not paying attention to the door, by being engaged in a phone call, he couldn't be paying attention to those customers boarding and alighting.
Q. There wasn't a customer with an accessibility issue in this case, was there?
A. So I didn't observe a customer with an access issue but the risk is elevated by using a phone, by not being aware if there was or wasn't. So it was only by chance.
Q. If a customer does have an accessibility issue like a wheelchair and the wheelchair ramp is needed, a bus driver will leave the bus running and push the ramp out to assist that person to get on and get out of their seat?
A. So that would be a valid reason in that case, yes.
Q. And the bus is left on when they're doing that?
A. Yes.
Q. So the only safety risk you can think of is that to passengers with accessibility issues, is that right?
A. That'd be the main one I could think of. There'd be others. I think for a bus operator watching passengers board they need to be aware of those customers. There's a few responsibilities, including ensuring the safety of themselves and other customers. For example, it could be someone who's intoxicated or poses some risk. They need to be aware of everyone who boards the bus. They need to be aware of anyone with mobility issues who may fall, people who could be, you know, it might be someone frail, aged, who might take a while to get to a seat and may need requirements when they get to a seat, assistance. So there's quite a few things they need to be doing, yeah.
Q. So they're the safety risks that you had in mind when you made this decision?
A. They were the main ones. Secondary, obviously you mentioned there is braking systems on the bus that are designed to keep that bus stationary. The driver should be alert in case those systems do, by chance, fail. That'd be a very rare occurrence but they need to be in control of the vehicle in that case.
Q. Both of those brakes failing is extremely rare, isn't it?
A. Yes.
Mr Rabbitt gave further evidence that he was not aware of any instance of both brakes failing in "recent history": Tcpt, 4 December 2019, p 12 (1)-(3).
Mr O'Conner gave evidence of circumstances where there had been failures of brakes and buses had moved away, although these were isolated situations. He agreed that there "was very, very little risk" of the bus moving while Mr McAuliffe was on the phone in the circumstances he made the calls on 7 June 2019: Tcpt, 3 December 2019, p 70 (39) - p 73 (26).
On the evidence, I am unable to find that Mr McAuliffe jeopardised the safety of the passengers when he made the phone calls. Although there had been instances of brakes failing, these were highly unusual situations. Indeed, the same braking arrangement is in place when a Bus Operator is assisting passenger on and off a bus when such assistance is required.
The respondent relied upon authorities of the Fair Work Commission, including the matter of Harbour City and Mr Nigel Sclater v Transdev Harbour City Ferries Pty Ltd t/as Transdev Harbour City Ferries [2019] FWC 7968 (Sclater). Although those matters were considered in a different legislative context and are not binding upon this Commission, the analysis contained in Fair Work Commission matters can be instructive. Whilst both matters involved the Fair Work Commission upholding a decision of employers to terminate employees for safety breaches, the nature of their misconduct was of different magnitude to the case at hand.
The matter of Harbour City involved the dismissal of a senior employee who tested positive for marijuana following an accident involving a ferry colliding with a pylon when he was the Master of the vessel. The applicant accepted a shift as Master of a vessel at short notice when he knew he would likely have marijuana in his system. He then failing to tell the respondent at the time of the accident he was likely to test positive to a drug test.
In the matter of Sclater, the applicant while Master of a ferry, fell asleep while on duty - on his admission for five minutes and in the employer's submission between 10-15 minutes. He failed to supervise the ferry's approach to two wharfs and participate in other important tasks associated with his role during this period. While it was determined that there was no imminent risk from this omission, it was determined that there was a "potential risk of significant proportions with the Master of the vessel asleep": see [75]-[77] of Sclater. The risks posed by the applicant's misconduct in the matter of Sclater were again of a different magnitude to the matter at hand.
Irrespective of the risks posed by Mr McAuliffe's actions, as he conceded, it was a "bad look" for him to be on his phone whilst the bus was in-service. Mr McAuliffe could have but did not take steps that were available to him to inform the medical practice he was unable to attend prior to the appointment without the need for him to make a phone call whilst he was on duty. For example, he could have asked someone else to make the phone call on his behalf after the practice had opened at 8 am. There was no reasonable excuse for him to be using his mobile phone whilst operating a bus in-service. His decision to do so was a poor judgement call made not once, but twice.
I agree with the respondent's submission that when Mr McAuliffe made the relevant phone calls, there was a risk that public confidence would be diminished and the respondent would suffer reputational damage. In addition to it not being a "good look", Mr McAuliffe was not doing his job when he was making the phone calls and at times was inattentive to customers who were accessing the bus service, albeit for a short time.
In his evidence in chief, Mr McAuliffe stated with respect to his knowledge of the respondent's mobile phone policy and procedure (Ex A3 at [11]-[13]):
11. Prior to this disciplinary matter, my understanding of the policies and procedures relating to mobile phone use on shift was that the bus had to be parked, you had to be out of the driver's seat, the handbrake had to be on, and the bus doors open. I developed this understanding from comments made by trainers during my initial traineeship as a bus driver, the various notes and papers attached to my journal from time to time, word of mouth from colleagues and superiors, and notices put up around the Depot. I cannot remember the precise contents of such notices or conversations, but that is the overall understanding I have gleaned from them over the years. I would have been trained on the mobile phone policy at my initial training, but I cannot recall the name of the policy, and my understanding of what it said is set out above. If you had asked me for the specific policy on mobile phone use during my employment I would not have been able to say its title or number.
12. I do not remember receiving any specific training about the use of mobile phones while working on shift for STA since the initial training.
13. Despite this, I understood that, when operating a bus, we needed to comply with the requirements of the law, like any driver. There were general pronouncements during my initial training as a Bus Operator that mobile phone use while driving is illegal, but since then I do not remember there being any major announcements by STA about new or updated laws or policies on the matter.
Apart from his own evidence as set out above, there was nothing before the Commission to support the evidence of Mr McAuliffe that he had acquired a misunderstanding of the policy of the respondent with respect to the use of mobile telephones from:
1. comments made by trainers during his initial traineeship as a bus driver;
2. the various notes and papers attached to his journal from time to time;
3. word of mouth from colleagues and superiors; and
4. notices put up around the Depot.
Mr McAuliffe was given every opportunity to put forward evidence to support his assertion about his understanding and how it was acquired. For example, he did not tender into evidence the notes and papers in his journal that he referred to, or evidence of specific conversations with colleagues which led him to misunderstand the policy. The only notices about the use of mobile phones in evidence were the Safety Alerts issued by the respondent considered below that gave clear messages that mobile phones were not to be used while operating a bus.
Under cross-examination Mr McAuliffe gave evidence that he was aware of rule 300 of the Road Rules, and that he had received and read a number of alerts with respect to mobile phone use while driving from the respondent and his Union. He also gave evidence that he received training when he was inducted to the effect that mobile phones were not to be used whilst driving.
The respondent relied upon evidence, including a script utilised for the purposes of training Bus Operator inductees along with an extract from the Trainee Information Booklet which states that the respondent's policy is that bus drivers are not able to use a mobile phone while driving a vehicle, whether it is moving in traffic or not: see Ex R4 at MO14 and MO15. An extract from the Trainee Information Booklet states that if an employee is found to be using a hand-held mobile phone contrary to the requirements, "their employment will be terminated. There will be no warning given if, following an investigation, it is proven that you have breached the requirements above."
The evidence also demonstrates that Mr McAuliffe received the Bus Operations Handbook at the time that he commenced his employment in 2007 signing an agreement that he would read it by the end of the first week of employment with the respondent and that he understood that it was essential he knew and understood his obligations and responsibilities as a Bus Operator. Clause 10.8 of the Operations Handbook relevantly provides:
b. Bus operators must not use mobile phones (including hands-free) or scanners when driving, whether with or without customers. Bus operators are only permitted to use a hand-held mobile phone when the bus is not in-service, is stationary, the engine is turned off and the park break applied.
The evidence before the Commission supports the conclusion that Mr McAuliffe was made aware of the respondent's requirement that mobile phones not be used by Bus Operators when they are operating a bus at the time he commenced his employment.
Also in evidence are three documents dated January 2012, August 2012, and January 2013 titled, "Safety Alert" informing the respondent's employees that use of electronic communications devices while driving is unsafe and that any "employee found using an electronic communication device (including earphones) was driving any State Transit vehicle will be dismissed."
Although Mr McAuliffe had undertaken his induction training a considerable time prior, and the safety alerts in evidence were also issued a number of years prior to the relevant events, I think it is unlikely Mr McAuliffe's was confused about the respondent's policy with respect to mobile phone use. It is more likely he knew that using his mobile phone while he was operating a bus in-service was unlawful and contrary to the respondent's policies. Even if Mr McAuliffe did not know this, he had a responsibility to understand the relevant laws and policies of the respondent in respect of mobile phone use.
I have considered the circumstances of Mr McAuliffe including his age and that he has been engaged by the respondent for a relatively long period. To his credit, Mr McAuliffe actively sought alternative employment after he lost his job with the respondent. At the time of the hearing of the matter, Mr McAuliffe had obtained casual employment with another company and has been offered a full-time position with another. He gave evidence the reason he had not accepted the full-time role was because of his personal circumstances, namely the ill-health of his elderly mother. Mr McAuliffe has demonstrated that he is a person with relevant skills capable of finding alternative employment.
I note that the applicant had received some commendations with respect to the service he provided whilst employed with the respondent and that the Depot Director of Waverly gave evidence that he was an asset to the respondent and has had a comparatively good driving record. Mr Rabbitt also acknowledged that the applicant has a good driving record.
Although the applicant maintained that he believed he was following the respondent's policy when he made the phone calls, he did show insight into the fact that he had done the wrong thing. Before the Commission, Mr McAuliffe gave the following evidence:
COMMISSIONER
Q. Okay, thank you, you're excused. Actually before you do, can I ask a couple of questions. When you kind of reflect upon all of this, do you think that you did the wrong thing on that day? Would you do the same thing?
A. Undoubtedly I did. It was a huge mistake and I'm sorry I ever did it. Like, in hindsight, I probably should've just waited till my lunch break and then rung the surgery and apologised for not making the appointment.
Q. And would you do things differently if you--
A. Differently? I wouldn't take my phone out of my bag while I was in the bus. That's how I'd look at it from now on. You know, I realise it was a huge mistake. I just - at the time I just thought I'll just quickly make this quick phone call. It was just, you know, I didn't sort of probably give enough thought to it but I do regret it, yes, very much so.
I accept this evidence as Mr McAuliffe's candid reflection of the events of 7 June 2019. Having observed Mr McAuliffe in the proceedings, I find that it is highly unlikely that he would engage in the same or similar conduct in the future.
Taking all of these matters into account, including the protective function of the Commission in these proceedings and the respondent's legitimate and appropriate expectation that employees will comply with their procedures and policies, I have determined that the punishment of termination of Mr McAuliffe's employment is too harsh a consequence for what he did on 7 June 2019. Put simply, the dismissal of Mr McAuliffe was a disproportionate response to his misconduct, considering the nature and gravity of that conduct, his length of service, good employment record and his demonstrated remorse and contrition.
Section 100C (2) clearly vests a broad discretion in the Commission enabling it to "allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit".
Having carefully considered all of the circumstances, I have determined in this matter to allow the appeal but not make an order that Mr McAuliffe be paid compensation for remuneration lost. This will represent a financial penalty to Mr McAuliffe which is appropriate given the conduct he engaged in and will hopefully send a message to others with respect to the seriousness of the respondent's policy regarding the use of mobile phones while operating buses.
Accordingly, I make the following Orders and directions:
1. Order that Mr McAuliffe's appeal is allowed.
2. Order that Mr McAuliffe be restored to his position of Bus Operator 2 within 21 days of this decision.
3. Order the period of employment of Mr McAuliffe with the respondent is taken not to have been broken by the decision of the respondent to dismiss him.
[10]
Amendments
17 March 2020 - Change the solicitors name "Kennedy J" to "J Kennedy,Hall Payne Lawyers for the Appellant".
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Decision last updated: 17 March 2020
Parties
Applicant/Plaintiff:
McAuliffe
Respondent/Defendant:
The Transport Secretary on behalf of the State Transit Authority