The Evidence
31Mr Mark O'Connor, Asset Security Co-ordinator, provided a statement in the proceedings in which he stated that he has held the position since 31 March 2010 although he has been employed with the Respondent since 2003. He is located permanently at the Leichhardt Bus Depot locality.
32Mr O'Connor stated that his immediate supervisor, the General Manager, Fleet Operations and Infrastructure Division, Mr Michael Reardon, requested, on 29 November 2012, that he conduct an investigation into certain allegations against the Applicant who was located at the Port Botany Depot.
33He completed the Investigation Report and delivered it to the General Manager on 28 December 2012. A copy of the investigation report and attachments were attached to his statement.
34During examination-in-chief, Mr O'Connor took the Commission through the CCTV footage. He pointed out the Applicant with an object in his hand which was round and rigid and which, he contended, was the wire rope. He pointed out that it had what would appear to be a turn buckle, a fitting on the end of the wire rope. He pointed out that the object the Applicant was carrying clearly showed, particularly when the light caught it, that it had attachments. Therefore it was different from the rubber hose shown to him at the rear of the Applicant's vehicle on the day of the interview as the latter did not have attachments, clips, at either end.
35During cross-examination, he confirmed that from the evidence he had collected (the Applicant had asked the Contractors a couple of times about the wire), he established that the Applicant wanted the wire and therefore there was intent to obtain that wire.
The Applicant confirmed the Contractors' evidence that he told them he was starting work at 10 am the following day. Mr O'Connor said he interpreted the intent differently:
Saunders: ... And you've decided that what Ross meant was I'll get the wire off you tomorrow?
O'Connor: I've interpreted that .. on the balance of probabilities that was probably his intent....Based on the evidence that was before me, I've drawn - drew that conclusion.
He conceded that there were at least three people (including the Applicant) who had expressed interest in the wire. Although a guy described by the Contractors as "a little guy, Matt" had expressed particular interest in the wire, he could not located as there was no one on the site with that name.
36Mr O'Connor pointed out that the scissor lift had been delivered to the site without a key and therefore could not be totally disabled. He understood that the Contractors had disabled it through the power system. He pointed out that all one had to do was push a couple of buttons to lower it or use a ladder to climb and get the steel cable.
37He confirmed that there was no evidence to contradict what he had been told that the Applicant left the site at 2.30 pm on 20 November and the Contractors left the site at 4 pm. There was no eye witness evidence or CCTV evidence of the Applicant returning to the site that evening after the Contractors left.
38He agreed that there were definitely many people who were on duty or who had access to the site, with the opportunity, between 4 pm on 20 November and 8 am on 21 November, to move the wire. Nevertheless, he said he had watched every piece of CCTV footage that was available around the workshop and on buses that were powered up at the time and had not seen anyone else. He was not aware of any search being conducted for the missing steel on 21 November 2012.
39Mr O'Connor confirmed that he wrote his report three days before he had the opportunity to interview Frank Fish to confirm that he had the Applicant's guitar, that his phone was indeed broken and that he and the Applicant had spoken about the latter's guitar. Mr Fish had confirmed to him that he was not close friends with the Applicant. He agreed that Mr Fish had no particular reason to provide an alibi for the Applicant and therefore was an independent person.
40He was shown a photograph of the Applicant carrying a black air hose with several coils. He agreed that it was holding an oval shape and the Applicant was holding it comfortably with one arm fully extended and the coil was just above the ground.
41He was shown another photograph, this time of himself, holding a coil of rope chord - the same material that the overhead lines were made of. He agreed that it was very, very dark and made of much narrower material than the air hose. It, too, was holding an oval shape, was reasonably flexible and was fitted with a large turnbuckle.
42He agreed that, in "pitch black", they could be mistaken for each other but repeated that they have "day lighting" at the depot and the steal coil held by the Applicant on 21 November had a turnbuckle on it.
43Mr O'Connor was taken through the CCTV footage. The Applicant was captured on the CCTV footage arriving on site at 9.30 pm. He was off camera from 21:30:55 pm to 21:32:55 pm while in the body bay. Mr O'Connor confirmed that there were exits nearby that did not have security cameras monitoring them.
44The Applicant was holding the dark coloured oval object in one hand and holding up his pants with the other hand. Mr O'Connor was adamant that the end of the object was straight and was a turnbuckle - not an errant piece of hose or, as was suggested to him, interference from the ground as that would only have occurred in one shot.
45Mr O'Connor confirmed that one of the reasons for not finding the Applicant's evidence credible was because he did not believe that the sick leave period was justified as he was capable of driving 20 minutes to and from Milperra and Port Botany then stop to have a conversation lasting 10 - 15 minutes with Mr Fish.
46During re-examination, Mr O'Connor confirmed that he advised the Applicant, at the interview, that there was an eye witness to the fact that he was carrying wire rope when he left the depot.
47Mr Nicholas Karlovassitis, Engineering Repair Tradesperson of 16 years' experience, provided a statement in the proceedings in which he confirmed the contents of his record of interview with Mr O'Connor on 27 December 2012. His evidence was to the effect that:
- he was on duty on the evening of 21 November 2012 at Port Botany Bus Depot;
- he commenced work on bus 1214 that was parked in bay 3 at the garage at about 9.30 pm;
- he moved bus 1214 to the electricians bay to work on it;
- shortly after, as he was walking from the electricians bay to the body builders bay to use a metal bender to bend a piece of aluminium, he heard a sound from behind him;
- he turned around and saw the Applicant about 10 feet away, at the bottom of the steps that lead to the mezzanine storage area of the body builders shop;
- he called out "Hi Ross". Mr Montgomery acknowledged him.
- he saw the Applicant "bending over and picking up something that looked like a roll of cable";
- he continued to a bending machine and bent a bracket; and
- when he completed the task, he commenced to walk back to the electricians bay and, as he did so, he noticed the Applicant, about the length of a rigid bus from him, walking out to the car park carrying the cable.
When it was suggested to him during the investigation interview that the object may have been an air hose, Mr Karlovassitis disagreed stating "It was dark air hose would normally sag when you hold it, this kept a round shape it was the same thing I saw him with just before".
48Once again, during examination-in-chief, he was adamant that he had an uninterrupted view of what the Applicant was picking up and to him, it looked like a roll of cable.
49During cross-examination, he described the object as "pretty circular", "pretty round", "it didn't look black", and he did not think it was an air hose because it held its shape and did not sag.
He explained that outside the workshop it was dark but inside the workshop it was "pretty lit up where I was standing, from where I saw him".
50Mr Michael Brian Reardon, General Manager, Fleet Operations, provided a statement in the proceedings in which he advised that he had delegated authority to implement punishments specified in clause 13 (1) of the Regulation.
51Mr Reardon stated that he had reviewed the findings made by Mr O'Connor and formed the opinion that:
- the investigation process had been conducted in accordance with STA procedures;
- the Applicant had been afforded procedural fairness throughout the disciplinary process; and
- considering the report and available evidence, the findings made by Mr O'Connor were appropriate in the circumstances.
52Mr Reardon pointed out that the reasons he supported the Investigation Reports findings on 28 December 2012 were that, upon reviewing the evidence, he formed the view that the Applicant was "not been honest in his response, but has been evasive in answering a number of question". He also pointed out that the Applicant had experienced similar circumstances in the past and was "aware of the requirement to ask management and offer to purchase (as he has done on previous occasions)".
53Mr Reardon contended that the Respondent provides hand tools via a personal issue to all tradespersons employed in the bus engineering and repair section and those tradespersons are responsible and accountable for the tools that have been issued to them. In addition, workshop tools/equipment (such as welders, grinders, specialist diagnostic equipment, compressors, air lines and the like) are also available for general use by tradespersons. He pointed out that, throughout his 33 years of employment with the Respondent, he could not recall any staff member being required to provide their own air lines and staff generally are not required to provide their own privately purchased tools/equipment to undertake duties on behalf of the Respondent.
54Mr Reardon pointed out that the Applicant was aware of the formal procedure to be adopted for the purchase of material that the Respondent requires to dispose of having purchased surplus items via that method in the past (eg scrap vehicle access ladders). The process involved formal offers and payments via depot revenue rooms. The authorised receipt issued is the proof of purchase that is required to be produced prior to removal of the material from the site.
55Mr Reardon noted that the Applicant said in his statement that he was stood down from work for a period of 18 months because he complained about being put to work in the security shed. He pointed out that the Respondent's records confirm that the Applicant was off work due to a work related injury and was paid during that time. He was allowed to resume work once appropriate medical clearances were obtained.
56Mr Reardon pointed out that Level 4 tradesmen are required, on a regular basis, to work unsupervised yet this was the second occasion STA property had been removed after hours without permission while the Applicant has been rostered to work. His concerns regarding the Applicant related to the latter removing a coil of cable without authorisation and when he was asked to explain, he was expected to provide an honest response. He pointed out that it was the second occasion when the honesty segment of the key corporate values (honesty, dependability and dedication) had not been met by the Applicant.
57During cross-examination, Mr Reardon gave evidence that there was no possibility that he could be mistaken. He was "absolutely certain it was a cable".
58Mr Montgomery tendered a statement in the proceedings which may be summarised as follows:
(a)He denied the allegation that he stole diesel in 2004 and believed that the subsequent TAB decision in 2005 exonerated him by reinstating him to employment with full continuity of service. (In his statement in reply, the Applicant acknowledged that the TAB found that the allegations against him had been substantiated. Nevertheless, he still maintained that he did not intend to steal the fuel for personal gain and was following directions from his supervisor);
(b)He was absent on workers' compensation for a work-related injury and upon his return to work in September 2011, although he was certified as fit for work, he was directed to work in the security shed and not in the workshop. He complained and was stood down for a period of 18 months;
(c)Before he was stood down, he lent his guitar to Frank Fish, a bus cleaner at the Botany Depot;
(d)He returned to the site once during that time to retrieve his tools and discovered his tool box had been tampered with and many of his tools were missing;
(e)He returned to the site a second time to check on his tools but left immediately when advised by Daniel Allen that he was not allowed on site;
(In his statement in reply, the Applicant stated that the STA provided only the basic necessary tools to its employees. He had speciality tools which he brought into work to make his job easier.
He stored his tools in two tool boxes, with a smaller one stacked on top of the larger box with wheels. The larger box contained the STA supplied tools and some of his own tools. The smaller box contained his own speciality tools.)
(f)He returned to work on or around November 2012 when Mr Satchell contacted him and instructed him to do so only to find that his supervisors were hostile towards him, and even more of his tools were missing (replacement valued at $2405.67), his locker had been cleared out and his personal belongings, including his work boots, were missing;
(g)(In his statement in reply, he said that about two years' ago he brought to the Depot a black air hose and a blue air hose to crimp them during his lunch break as he did not have the right tools at home to do that. He placed them on the bench to keep them safe and promptly forgot about them because he was absent from work for a long period due to a workplace accident.)
(h)He said he found his air hose and blocks of wood behind a bench as he was cleaning on 20 November 2012. Concerned about losing them as he had his tools, he placed them under the stairs in readiness to take home with him at the end of his shift that afternoon, however, he forgot to take them home. He was aware that there was a security camera overlooking the area as he had assisted the contractor to install them some years previously;
(In his statement in reply, the Applicant recalled that he was working in the body bay when two contractors arrived. He recounted the conversation they had which commenced with general chit chat and then evolved into a discussion as to the purpose of their work at the Depot:
Applicant: What are you doing?
Contractor: We're cutting down the cable.
Applicant: It's pretty rusty - I've been up there.
Contractor: Oh yeah? What were you doing up there?
Applicant: My boss made me put some "do not use" tags on the overhead static line.
Contractor: It's not that bad.
Applicant: It's been there ten years - I don't know why we're replacing it.
Contractor; The stuff we've got is stainless steel, it's lighter.
Applicant: That'll be good. What will you do with the old wire when you're done?
Contractor: Chuck it in the rubbish.
Applicant: Jeez, the amount of money they waste around here.
Later in the day, he recalled that when he brought a bus back into the bay, the contractors had finished taking down the old wire and had it laid out across the floor. They had another conversation:
Applicant: Can I come in with the bus? What are you doing with the wire?
Contractor: No, we'll need the area for another couple of hours.
Applicant: Okay, I'll just work outside.
He recalled that he did not walk back through the workshop again that day and therefore was not aware of what the contractors did with the wire.
He said he never saw them again until he passed them as he was about to go home. They were both in their ute having their lunch. He recalled the following conversation:
Applicant: Ha, ha, some blokes have it easy.
Contractor 1: We've got to drive all the way back to Newcastle!
Contractor 2: Hey - what's with this Adam, he's driving us mad asking about the cable, he wants to take it to his farm.
Applicant: Just watch him. I'll be in at 10 tomorrow, I'll see you then.)
(i)He was suffering from diarrhoea and obtained a medical certificate for the period Wednesday, 21 - Monday 26 November 2012;
(j)He had not seen much of Frank Fish since lending him his guitar. When he return to work, he was rostered for the early morning shift and Frank Fish was rostered to work the night shift. He did not have Frank Fish's telephone number. He decided to attend the depot to speak to him about getting his guitar back;
(k)He has suffered from nervous diarrhoea his entire life, was familiar with the symptoms and how to manage them. While he was not fit for work, he was able to manage a brief visit and knew that there was a bathroom near where he was going. He took some anti-diarrhoea medication and drove to Port Botany on the evening of 21 November 2012.
(l)He had previously witnessed many employees attend the Depot while on sick leave to present certificates and collect personal items and therefore did not believe that it was a breach of the Respondent's policy to attend the site;
(m)He arrived before Mr Fish's shift started and so, while waiting for Mr Fish to arrive, proceeded to the workshop to pick up his air hose and blocks of wood. It was the black hose that he removed on 21 November 2012; (What happened to the blue hose? When did he remove that?)
(n)He said he saw Lincoln Penderbeam, a body repairer, working. Nick, one of the Electricians, also entered and exited the workshop. He called out greetings but received no response from either of them;
(o)Shortly after entering, he paused and tried to recollect whether he had a bag in the car to put the air hose in to avoid getting his seats dirty. He recalled that he did not have a bag and proceeded to fetch the air hose anyway. (In his statement in reply, the Applicant clarified that he had paused while walking between his car and the workshop.)
(p)He put the blocks of wood in his pocket and, while he was bending over to pick up the air hose, the fly button on his pants broke causing him to walk awkwardly and hunched over with his right hand holding the air hose and the left hand holding up his pants;
(q)He threw the air hose into the car causing the string holding it together breaking thus allowing the hose to uncoil. His pants also slipped down at that point in time;
(r)He then drove round to where the buses were parked. He parked near where the rubbish was dropped in order to allow easy access to buses to pass. He saw Frank Fish getting off one of the buses and called out to him;
(s)Frank Fish and another cleaner, Jason, came over to him and they had a brief conversation during which he made arrangements to pick up his guitar;
(t)While they were talking, a motor mechanic, Greg Bond, came up to him and informed him that Adam Iskandar was on duty and speculated that a report would be filed in relation to the Applicant's presence on site. He left the site following that conversation;
(u)He said that when he returned to work on 29 November 2012, one of the Managers, Ken Dewhurst, called him into the office and advised him that he had 37 days accrued leave which was unacceptable. Agreement was reached that the Applicant would take leave from Monday, 4 December 2012.
(v)He was therefore home on approved leave on Monday, 4 December 2012 when Mr O'Connor called and then arrived to deliver Form E1;
(w)He denied steeling a coil of wire rope from the Depot insisting that the only items removed were his personal property;
(x)He found the Investigation Interview with Mr O'Connor "quite intimidating" as he got the impression that Mr O'Connor had already made up his mind that the Applicant was guilty as charged;
(y)He was required to take his accrued annual leave before being stood down without pay following the investigation. He was subsequently dismissed from employment. It was contended that the requirement was unlawful and his annual leave balance should be re-credited to him. It was also contended that the dismissal was harsh;
(z)He advised that, as at 18 March 2013 when he signed his statement (and 10 April 2013 when he signed his statement in reply), he had not been able to find alternative employment and it would be very difficult to find alternative employment given he is 69 years of age. He said that the termination has had a significant financial impact on him and he was living off his meagre savings as he was yet to access Centrelink payments because the Respondent had not provided him with an Employment Separation Certificate. He also advised that he was suffering significant personal stress given the significant impact the nature of his termination has had on him.
59During cross-examination, Mr Montgomery confirmed that, on 20 November 2012, he was working the 6 am to 2 pm shift and left the site at about 2.30 pm. He confirmed that he was aware that the cable in the body bay area was being removed; that other employees were interested in obtaining it; and that he had inquired from the contractors as to what was going to happen to that cable. He denied, however, that the contractors said the cable was to be retained by the Respondent or that he was interested in obtaining it for himself.
60Mr Montgomery agreed that throughout his statement he had referred to one air hose and not two. He used the vice to hold the blue hose and was able to use the crimper a friend of his lent him to attach the fitting because the hose was made of solid material. It did not work with the black hose because it was made of rubber, he had it for over 5 years and the wall of the rubber was much thinner so the crimping tool could not get it tight enough.
In relation to the wood, there were three blocks that he had taken into the Depot to use the band saw to cut them at an angle but, for safety reasons, it did not work.
Mr Montgomery said he moved the black air hose from behind the bench to under the stairs in the body bay. He was going to take it home but the contractors were there and he forgot about it. He said it was the blue air hose that had the fittings on it and he had taken that one home with him "the day before". He then corrected himself and said he took it home on the 19th and was going to take the black hose home on the 20th.