Findings
146This is an appeal under clause 32 of the Transport Administration (Staff) Regulation 2005 against STA's decision to impose on Mr Stevens the punishment of dismissal from his position of Bus Operator Level 2. Section 23(1) of the TAB Act provides that the Board may decide to allow or disallow the appeal, or make such other decision as it thinks fit.
147Mr Stevens, in his Notice of Appeal, has pleaded 'Guilty' but disputes the punishment imposed on him by STA. The Board's function in this matter is to determine whether the disciplinary punishment imposed by STA in relation to the conduct committed is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125].
148The Board is obliged to determine the disputed issues before it on the civil standard of proof, that is, the balance of probabilities. The Board is also obliged to approach the matter in a manner consistent with the principles enunciated in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.
149The Board has very carefully considered all of the evidence, both oral and written, the submissions of the parties and the cases cited, and has again viewed the CCTV footage of 20 January 2012 (and that footage only) as shown during the hearing and tendered as part of STA's evidence. That viewing was conducted through the use of a computer and, as the Board has found in other disciplinary matters before the Board, it enables a much clearer and closer view of the images to be gained than that afforded on a large screen and at some distance in the court room.
150The Board would again express concerns at advice that was apparently given to Mr Stevens by an RTBU representative (whether that was just at the local level or from the RTBU's Sydney office is not clear) that he should not answer questions in an investigative/disciplinary interview unless they were in writing. The Board would again draw the attention of the RTBU to the observations made on this issue in Jaggers v State Transit Authority [2012] NSWTAB.
151At the outset the Board would indicate that it found Mr Stevens to be a witness of credit who gave his evidence in a forthright and truthful manner and expressed genuine contrition for his actions on 20 January 2012.
152The Board has also noted that he made full admissions in his General Report provided in response to the E1 issued by Ms Molenaar including admitting that the passenger had twice asked him to wait and giving the words that she said. There was no evidence before the Board that this admission arose as a consequence of actually being given or told the contents of the complaint made by her to the "Your Say" line in which the passenger referred to asking him to wait twice. He also made it clear that he did not see that her arm was in a sling and why and that she did not advise him of this.
153The Board has had the opportunity of viewing the relevant CCTV footage several times and frame by frame, and observed the following:
When Mr Stevens pulled up at the bus stop at 7:29:08 there were no passengers standing at the bus stop. At 7:29:09 Mr Stevens took off his seat belt, opened the cabin door, got up out of the driver's seat and proceeded to alter the signage at the front of the bus until 7:29:48, he then resumed his seat, picked up the trip roster sheet and made a notation after checking his watch, then closed the doors and placed his hands on the wheel and was preparing to pull out when he opened the doors to let the two female passengers board the bus (7:30:06).
When Mr Stevens initially pulled up at the bus stop the female passenger had alighted from the stationary bus at small distance ahead and on the other side of a driveway. She was followed off the bus by the driver and they then proceeded to walk down the path. That view was obscured by a very large tree (with a spreading trunk), she then turned and spoke to the driver for the next several seconds. This all took place during those seconds when Mr Stevens was otherwise engaged (as described above).The only split second view Mr Stevens would have had was when her back was turned away from him. From that view it was not possible to see that her arm was in a sling. The colour of the sling was the same colour of her clothing.
When the two passengers got on immediately following each other Mr Stevens initial view was focused on the other passenger as she dipped her ticket at the other ticket machine. The female passenger did stand front facing with her bag on the bulkhead and in such a way that her sling would not have been apparent to him. She was not "rummaging" in her bag for her ticket but "rummaging" in her purse for the ticket, she was holding her purse in her left hand (again this would not have readily indicated she had a sling or impairment), she then dipped her ticket with her right hand while Mr Stevens was watching but then she seemed to take some time to place her purse back in her bag again, while Mr Stevens was initially watching.
He certainly then proceeded to take the bus out into traffic and was in the line of traffic before she had finished moving towards her seat.
It was not apparent that she tripped or fell forward in any way, she certainly appeared to be leaning against the bulkhead in what could be a bracing position but had no difficulty walking to, and taking her seat.
154The Board certainly agrees that Mr Stevens did not wait for her to be seated or to have commenced to make her way along the aisle or have a firm hold and that was not correct procedure and there was no excuse for not waiting, as he was running on time at that stage. However Mr Stevens was correct and truthful in his General Report and his evidence to this Board that he was not, and indeed could not have been aware, that the female passenger had her left arm in a sling. The Board accepts his evidence that had he known this then he would not have taken the actions he did, that he has acknowledged his mistake and accepted responsibility for that mistake. Nevertheless regardless of whether or not the passenger had her arm in a sling or not he should have watched and waited until he was sure that she was either seated or had a firm hold on some fixture of the bus.
155The Board finds in all the circumstances that his actions certainly displayed a significant lack of care and attention to following correct procedures and a significant lack of care and regard for the safety of a passenger, but those actions could not have been categorised as a reckless disregard for safety. He appeared to have acted on the assumption that after she dipped her ticket, she would place her purse in her bag and then proceed to move up the aisle and take her seat rather than take additional time to place her purse in the bag.
156The Board notes, as Mr Edghill has correctly pointed out, that the actual relevant sections of the STA Code of Conduct and relevant Driver Instructions were not in fact in evidence in any way before the Board. Nor were such extracts contained in the Investigation Report. They should have been and should be so included in any future appeals before the Board involving the STA.
157However, as the colloquial saying goes, it was very much a case of the "pot calling the kettle black" as the Board also notes that there was absolutely no evidence whatsoever about Mr Stevens' personal/family circumstances, any actions he had taken to mitigate his loss such as attempts to find alternate positions or difficulties with such attempts, previous employment/skills/training relevant to any ability to obtain alternate employment etc. What evidence was before the Board (his age and that he still retained his MOT Driver Authority) was adduced as a result of questions from the Board.
158Such evidence is necessary, and customary, if it is sought to be established on behalf of an appellant that a dismissal (or some other disciplinary penalty) is harsh. and should be set aside. The Board does not just look at the harshness of penalty and whether or not it is a punishment in proportion to the conduct alleged as required by Dubhihar but takes into consideration a wide range of factors including the consequences of such a decision on the affected employee (see Walters v RailCorp [2012] NSWTAB 3). Such factors may well vary from case to case depending on the circumstances/history of the individual concerned as well as the particular facts of the case.
159The Board has taken into consideration the previous training Mr Stevens has received particularly in relation to the 'Safety for Seniors' Toolbox Talk. The challenge to that evidence by the RTBU is not accepted by the Board. It is not necessary for STA to actually produce in evidence the person who delivered that talk. The Board accepts the evidence of Mr Larosa and Ms Molenaar that such a talk was delivered across the Depots and while they may not have participated in that which took place at Brookvale Depot they did participate in those that were held at the relevant Depots at which they were located at that time.
160The Board has also carefully considered the procedural fairness issues raised by the RTBU in this matter.
161The Board considers that whether or not Mr Stevens would have been advised of all the documentation Ms Molenaar had looked at cannot be known as Mr Stevens chose to end the interview after initially answering her questions. It is clear from his evidence and the transcript of the interview that he was being shown documents (the Final Warning letter for example).
162The Board certainly accepts the RTBU's criticism of reliance on the complaints from the 'Satisfy' system. The only evidence before the Board concerning any of these complaints being put to Mr Stevens or of the outcome of such are the four complaints (18/02/2005, 22/03/2006, 1/5/2006, 9/01/2009) attached to Ms Molenaar's statement which refer to "counselling" being undertaken or "brought to B/op attention". It is accepted that in all likelihood that some of those 186 complaints would have been put to Mr Stevens for comment/response, but how many and which ones is impossible to say, or whether or not that was accepted.
163There is no evidence before the Board (apart from Ms Molenaar's evidence) of what constitutes an average or acceptable number of such complaints, if such a standard exists.
164It is obvious that if a serious matter is involved then the STA have CCTV footage available for consideration and that a customer complaint could lead to an E1 being issued and might result in an adverse disciplinary outcome for a Bus Operator.
165The Board made certain observations about such reliance on a Bus Operator's complaints' history in Murphy v State Transit Authority [2012].
166The Board is not prepared to rely on such a history unless, and until, there is also a record before the Board of the actions taken in relation to the Bus Operator concerned. When that is done and can be provided in evidence to the Board it can be properly taken into account. The Board would also expect that any General Report provided by a Bus Operator in response to a complaint would also be kept on his/her file and form part of a driver's record.
167The Board has frequently had occasion to observe in s.84 Unfair Dismissal applications that the single most disputed issue between employers and employees is whether or not an employee has been issued an informal warning (or usually a number of warnings). Advice has always been issued to employers (particularly small employers) that the two essential elements of such a process should be some sort of record by way of a file note (a simple work diary entry can be sufficient), but most importantly a record (in the same file note/diary entry) that the employee concerned has acknowledged being spoken to about the issue of concern. This is necessary if reliance is sought to be placed on such informal warnings in subsequent formal proceedings against an employee. In any event such informal warnings usually precede the issue of concern moving to formal written warnings being forthcoming and if reliance is sought to be placed on such informal warnings then the necessity of having a record of such should be fairly obvious.
168As was the case in Murphy the Board is prepared to take into account any formal written warnings that resulted from the previous E1s Mr Stevens was issued, the other written warnings that are attached to Ms Molenaar's statement and the customer complaints referred to above. The Board would also be prepared to take into account any letter issued to a driver confirming that there had been a meeting with management to discuss a complaint/issue of concern if such was on the driver's file.
169The Board would agree that based on that material Mr Stevens does not have an unblemished record and has had issues of concern regarding customer service and safety generally raised with him over his ten years of service with STA.
170The Board makes it crystal clear that STA are entitled to rely on past disciplinary history when a current matter against an STA employee is being considered. Just as it would be appropriate for STA to take into consideration any meritorious matters in an employee's history (such as awards, letters of commendation etc, unblemished service etc.). A long line of authorities make that explicitly clear. As Sheppard J of the former Industrial Commission observed in John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517, a past act of misconduct:
"...does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be relevant to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about a dismissal..."
171That decision continues to be relevantly cited and was so as recently as Connor C in Grant Thomas v Boral Cement Limited [2011] NSWIRComm 1045
172What does need to be considered by a tribunal however is whether any past acts of misconduct/formal warnings, or earlier disciplinary action, is firstly, sufficiently recent to still be of relevance (e.g matters many years in the past with a subsequent good record would probably not be relevant) and secondly, whether the issues about which disciplinary action was taken in the past are individually or collectively sufficiently relevant to the current issue under consideration (e.g warnings about very minor issues only or related to an entirely different subject matter such as incorrectly filling out a form etc.).
173Employees should always be aware that their employment history, both good and bad, can be relied on by an employer when considering disciplinary action. Employees always (rightly) expect a good record to be taken into account. Similarly a poor record will also be considered. An employee has the right to see their file in such a situation.
174The Board finds that in Mr Stevens' case he was afforded procedural fairness by STA in that he was given the full particulars of the allegation against him; afforded the opportunity to provide a written response and did so; afforded the opportunity of viewing the relevant CCTV footage which he declined (on the basis that he was content to let his RTBU representative view it on his behalf), and afforded the opportunity to participate in an interview with the investigator. That the interview was cut short was entirely the fault of Mr Stevens (and the advice given him by the RTBU). Thus far in the process procedural fairness was afforded to Mr Stevens by STA in the opinion of the Board.
175The Board however considers that a significant, and crucial element missing in the process was the opportunity for Mr Stevens/and or his representative to make representations to the decision maker about the disciplinary penalty that had been determined, and have those representations taken into consideration before a final decision was made and he was issued with the Notice of Punishment by Mr Larosa on 2 March 2012.
176STA submitted that he was afforded that opportunity. That does not accord with STA's evidence however. There was no evidence that Mr Larosa spoke to Mr Stevens, or received any representations on penalty prior to handing him the Notice of Punishment on 2 March 2012.
177The Board acknowledges that during the investigative interview Ms Molenaar asked Mr Stevens the following:
LM: This letter states (the Final Warning) on the bottom paragraph on the second page that any future occurrences of this behaviour would result in disciplinary action taken against you up to and including the termination of your employment. If this incident with the female passenger is found PROVEN the most serious punishment that could be decided against you is termination of your employment as described in your final warning letter. Do you have any submissions to make as to what actions State Transit should take considering your (sic) already serving a final warning for showing disregard for public safety?
WS: No. I asked for whatever you have in writing, as I have indicated I am not going to answer.
178However in the Board's very firm view this does not constitute being provided with an opportunity to make representations to the decision maker on the issue of appropriate penalty. It in not appropriate to attempt to incorporate this somehow into the investigative/disciplinary interview. At that stage no findings had yet been made. In any event it is to the decision maker that the right to make representations exists.
179It is standard procedure across the public sector, local government and at RailCorp, (the major employer appearing before the Transport Appeal Boards), that once findings have been made that allegations are proven/sustained and provided to a decision maker (with or without recommendations as to disciplinary action) by way of a report arising from an investigative/disciplinary process that the employee concerned is sent by the decision maker what is generally known as a "show cause" letter indicating that an investigation has concluded, findings made and disciplinary action is now being considered. Often (but not always) the employee is advised as to the disciplinary option that has been determined subject to any submissions that might be made by (or on behalf of the employee), which may also include the opportunity of a meeting with the decision maker. An employee is then given a period of time within which to provide a written response or attend a meeting for such purpose (usually either 7 or 14 days). This is not a token exercise and can result in
circumstances/issues not previously known by a decision maker able to then be taken into consideration and can result in a lesser disciplinary penalty being imposed.
180Indeed, the Public Sector Employment and Management Act 2002 mandates that this is to be done in ss 46(3), 47(4) and 48(2) which are each expressed in identical terms. Section 46(3) of that Act serves to illustrate this point as follows:
46 dealing with allegations of misconduct
(3) Before any disciplinary action is taken with respect to an officer under this section, the officer must be given an opportunity to make a submission in relation to the disciplinary action that the Department Head is considering taking.
181Whilst the Board appreciates that STA is not bound by the PSEM Act, nevertheless this is standard practice across the public sector (and in those areas such as Health and Education where persons are not employed under the PSEM Act) as well as local government. It is a readily accepted and important part of procedural fairness.
182This ability to address a decision maker on penalty is even more relevant and significant when there are a range of disciplinary options available to the decision maker, such as exists in both the public sector (at large) and in local government. That is also the case under the provisions of Clause 28 of Division 3 of the Transport Administration (Staff) Regulation 2005 as follows:
28 Punishments in disciplinary proceedings
1)The STA may impose any one or more of the following punishments in disciplinary proceedings against an STA officer:
a)a caution or reprimand,
b)a fine of an amount not exceeding $100,
c)reduction in position, rank or grade and pay,
d)suspension from duty without pay,
e)dismissal.
2)Instead of dismissing an STA officer, the STA may allow the officer to resign.
183Further where an employee has made admissions as to allegations against them rather than simply denying such at all stages, then being denied the opportunity of making submissions as to the punishment being considered by the decision maker, in the Board's view adds to the unfairness of the process.
184The Board was also required to consider issues of procedural fairness and alleged defects in the process followed in David Ryan v RailCorp [2012] NSWTAB 21. In considering the specific flaws referred to by the RTBU on behalf of the appellant Mr Ryan, the Board (as currently constituted) observed as follows:
391 Even where there are held to be procedural flaws and/or defects in a process, that does not necessarily mean that it is fatal to the eventual outcome. There have been numerous cases dealing with procedural fairness issues in formal arbitral proceedings. The decision in D & R Flood Commercial Pty Ltd and Flood [2002] NSWIRComm 88 traversed the various authorities in that context (and in particular where there had been reference/reliance by the decision maker below on a matter raised/referred to in conciliation) and the Full Bench indicated at para 53 as follows:
A convenient statement of the appropriate general approach is that set out in the judgment of the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141, where the Court, having referred to the "general principle ... well expressed by the English Court of Appeal" in Jones v National Coal Board [1957] 2 QB 55 at 67 that "everyone ... is entitled [to] a fair trial at which he can put his case properly", observed at 145 - 146:
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.
..................
392 The Board considers that the general principles enunciated above are equally applicable to an investigative/disciplinary process. The crucial question to asked is whether that alleged flaw/defect in procedural fairness would have affected the outcome.
185The Board went on to find that there had been appropriate procedural fairness afforded to Mr Ryan and in accordance with the well established RailCorp Discipline Policy (and a policy agreed between RailCorp and the relevant Unions). It should be noted that the Policy did provide the opportunity for submissions to be made to the decision maker by Mr Ryan/or his representative (by way of written response to a "show cause" letter) as indicated in the evidence before the Board.
186In this matter the Board finds that the lack of opportunity for either Mr Stevens or his Union representative to be able to make submissions as to the disciplinary penalty to be applied by Mr Larosa prior to the final determination by him as to punishment and the formal issuing of a Notice of Punishment had the potential to affect the outcome and as such is a procedural flaw of sufficient significance to be of extreme concern to the Board and contributes towards a finding that the dismissal was harsh.
187The Board acknowledges that this is not an issue that has arisen per se in previous appeals before the Board. However the submissions of the RTBU concerning procedural fairness have focussed the Board's consideration on the overall process followed by the STA for the first time as distinct from those narrow issues (the interview process) which arose in Jaggers.
188The Board has also given careful consideration to the previous written warnings issued to Mr Stevens. They clearly indicate a pattern of general (and concerning) lack of care, and thought, and consideration towards others. However having said that it is considered that the punishment of dismissal is too harsh in all of the circumstances of this matter. That includes the actual incident of 20 January 2012. To move straight from a Final Warning to dismissal is also considered harsh when there were other disciplinary options available to STA and not yet utilised and which can also serve as remedial action and provide an opportunity to an employee to appreciate what they must do in the future to avoid the final step of a dismissal.
189The Board as currently constituted has dealt with appeals concerning the STA and a dismissed appellant that with one exception (Murphy) have involved not guilty pleas (and where an appellant has denied allegations of wrongdoing), but also where some of the other disciplinary options (such as regression) have already been applied, leaving dismissal as the final and only option available, (see Kyriakou v State Transit Authority [2011] NSWTAB 17 and Tran v State Transit Authority [2012] NSWTAB 15).
190As indicated above there is no evidence before the Board as to Mr Stevens circumstances apart from his age. The Board is entitled to take judicial notice of the fact that at the age of 63 any employee would have great difficulty securing alternate employment, notwithstanding that Mr Stevens still retained his MOT Authority.
191The Board considers that in all of the circumstances an unpaid suspension together with a regression in Grade for a specified period of time (as permissible under Clause 28 of the Regulation) is an appropriate punishment and confirms the seriousness of the incident and acknowledges his past record, without necessitating the most severe punishment of dismissal. It also essentially gives Mr Stevens one last chance at carrying out the duties of a Bus Operator to the requisite standard and in accordance with STA policies and procedures. He should also be subject to periodic discrete checks by an appropriate BOT 2 which were referred to in the Final Warning but did not appear on the evidence to have taken place in the period between in the issuing of the Final Warning in September 2011 and the incident on 20 January 2012.
192The Board also issues the following recommendations to the Rail Bus and Tram Union, Bus Division concerning investigative/disciplinary procedures:
The RTBU should advise all officers and Depot representatives that members should be advised to:
1.provide as comprehensive and succinct a written response as practicable to any E1 issued;
2.participate in interviews without conditions attached (such as the provision of written questions) and in the presence of a support person;
3.always view relevant CCTV footage personally rather than rely on a third party viewing;
4.seek to view any relevant file of the employee concerned (Depot file, Personnel File, disciplinary history etc).
193State Transit's decision to dismiss Mr Stevens as at 2 March 2012 will be set aside effective from that same date and Mr Stevens will instead be suspended without pay for the period from 2 March 2012 to 2 June 2012, a period of 3 months (13 weeks). He is to be regressed to the position of Bus Operator Level 1 as from 3 June 2012 for a period of 6 months expiring on 3 December 2012 when he is to revert to a Bus Operator Level 2 .