Stevens v State Transit Authority

Issue(s) 7Mr Stevens pleaded guilty to the charge against him and sought that the penalty be set aside. It is therefore the Board's task to determine the appropriate penalty to be imposed in all the relevant circumstances.

Background and Chronology 8The following Background and Chronology has been drawn from the evidence and written submissions before the Board as filed by the parties. 9On 1 September 2011, Mr Stevens was issued a Form E1 for two separate allegations concerning his operation of STA buses and specifically his overtaking manoeuvrers past two separate cyclists. The allegations were found proven and he was issued with a written Final Warning. 10On the 20 January 2012, Mr Stevens commenced work on shift 6R248 at Brookvale Depot. This shift contained the 7:30am E68 service from Balgowlah Road and Condamine Street, Balgowlah. At approximately 7:20am Mr Stevens left Brookvale Depot and drove to the scheduled location of Balgowlah Road and Condamine Street to commence his rostered work. 11At approximately 7:30am a female passenger whose left arm was in a sling boarded the bus. She stood adjacent to the driver's cabin and placed her personal bag on the front bulkhead of the bus. While she was still standing adjacent to the driver's cabin and attempting to validate her ticket, Mr Stevens moved the bus and departed the bus stop, causing the passenger to lose balance and tip over the front of the ticket machine. 12The passenger concerned telephoned the "Your Say Line" (YSL) Call Centre at 8:25am, that same morning, and lodged a complaint against Mr Stevens for his actions and in doing so provided her name and contact details. The complaint was logged as follows (Exhibit 2- Attachment 4-6): Caller complains about the behaviour of the bus driver ID GO0582 on bus E68 MO3190 departing Balgowlah Rd and Condamine St terminus direction city on 20/01/12 at 0730. Caller states she has her arm in a sling (she has a shattered collarbone) and so has the use of 1 arm and complains the bus driver did not wait for her to enter her ticket in the ticket machine. Caller states as she was boarding the bus driver closed the doors and started to move the bus away from the curb, caller states she asked the driver twice to wait so she could enter her ticket and sit down but instead the driver ignored her requests and the bus bus (sic) lurched forward. Caller complains she almost fell and states this bus driver could have waited 20 seconds for her to sit down as the bus was on time. Requests a call back and expresses concern at this bus drivers lack of concern for her safety. 13On the 23 January 2012, after viewing the CCTV footage of the incident The Acting Depot Manager requested that Staff Manager Laura Molenaar commence formal disciplinary proceedings against Mr Stevens. 14On 25 January 2012 Ms Molenaar issued Mr Stevens with a Form E1 (inviting him to provide a written explanation within seven days) and containing the following allegation (Exhibit 2-Attachment 4-2): Charge One On the 20th of January 2012 it is alleged you breached Section No 4.4.i and 4.18 of the State Transit Code of Conduct and Instruction No 4.3.2.1 (c) and 4.3.6.4 (d) of the Bus Operations Handbook when you departed a bus stop prior to a female passenger had been seated or had a firm grip on any fixture on the bus. Particulars of Charge One 1.On the 20 the January 2012 you were rostered and performed shift 6R248. 2.You were allocated vehicle MO3190 to complete your rostered work. 3.At approximately 7:30am in vehicle MO3190 you were located on Balgowlah Road near Condamine Street to begin your rostered E68 service. 4.At approximately 7:30 am a female passenger whose arm was in a sling boarded your E68 service and proceeded to begin to dip her ticket into TR1 machine. 5.At approximately 7:31am you departed the bus stop on Balgowlah Road near Condamine Street prior to this female passenger being seated of (sic) having a firm hold on any fixture on the bus. 6.Your actions on this occasion put the safety of this female passenger in jeopardy. 15On 1 February 2012, Ms Molenaar received a General Report from Mr Stevens in reply to the Form E1 in which he indicated as follows (Exhibit 2-Attachment 4-3): Before the female passenger boarded the bus she was standing on the footpath with her back to him, some distance from the bus talking to another STA Driver, he gave similar detail about the bag and attempts to find her ticket and said she made a comment about departing exactly on time during which another woman boarded the bus, he proceeded to "pull out slowly" at which point she said "give me more time", he continued "slowly to clear the bus in front and join the traffic flow", she repeated her request, "I need more time", became "agitated", dipped her ticket, proceeded to her seat complaining to the other passenger. it was only then she mentioned having an injury, he was entirely unaware of same given her left arm was away from his view and she was carrying a large bag, when she left the bus at Wynyard she complained again and he noticed the arm-sling, it was a similar colour to her dress. 16Ms Molenaar conducted an interview with Mr Stevens on 15 February 2012 in the presence of his RTBU local representative which was electronically recorded (Exhibit 2-Attachment 4-4). 17On the 27 February 2012, Ms Molenaar completed her Investigation Report, finding the allegation proven and forwarded the Report to Brookvale Depot Manager Domenic Larosa (Exhibit 2-Attachment 4-6). 18Mr Larosa reviewed the Investigation Report and determined that the appropriate punishment was dismissal and issued Mr Stevens with a Notice of Punishment on 2 March 2012 (Exhibit 3-1).

Evidence 19The CCTV footage of the incident involving Mr Stevens and the passenger on 20 January 2012 was viewed during the course of the evidence before the Board (Exhibit 2-3).

Respondent's Evidence 20STA's evidence before the Board was contained the Investigation Report (attached to Ms Molenaar's statement - Exhibit 2) which included Mr Stevens' relevant training and disciplinary history; 'Safety for Seniors Toolbox Talk" script; the record of interview; STA Executive Report of the history of customer complaints involving Mr Stevens; the relevant customer complaint of 20 January 2012; the CCTV footage; as well as Witness Statements from the following STA employees who also gave oral evidence: Laura Molenaar......Staff Supervisor, Brookvale Depot (Exhibit 2), Dominic Larosa .....Brookvale Depot Manager (Exhibit 3). 21Both Ms Molenaar and Mr Larosa deposed as to the relevant chronology of events (and background) that resulted in the dismissal of Mr Stevens and their respective involvement as set out in the Background and Chronology above. 22Ms Molenaar deposed as to her qualifications, background with STA and her role at the Brookvale Depot. 23Ms Molenaar said that when met with Mr Stevens to issue the Form E1 on 25 January 2012 she offered to him, as well as to the relief RTBU representative, the opportunity to watch the CCTV footage (she had already viewed the footage). He declined that opportunity, giving no reason for doing so. The relief RTBU representative, Mr Robinson, viewed the footage after this but did not doing anything after that. 24She deposed that she had commenced the investigation by undertaking a review of Mr Steven's employment history based on available STA business records which she summarised as follows: Between 2002 - and 2009, he was involved in fourteen incidents concerning his lapses in customer service, safety and failure to operate as rostered and the warnings, counselling records and formal allegations issued were also reviewed (and attached to her statement). On 14 May 2007, he attended a "Safety for Seniors" toolbox talk, a training session which included re-enforcement of the requirement of all Bus Operators to wait for a passenger to be seated or to have a firm hold of a fixture in the bus. (The typed script for this talk was reviewed). Between 2010-2012 he was involved in three more incidents concerning his lapses in customer service and the safe operation of buses he was operating. The form E1s, warnings, final warnings and CCTV footage were reviewed(as attached to her statement). During his entire career between 2001 and 2012 she found a record of 186 separate customer complaints (as attached to her statement). 25Ms Molenaar received Mr Stevens' 'General Report' containing his explanation of the allegations against him and subsequently interviewed him to clarify his written response and to assist her investigation. There was no material alteration to required to the substance of the interview transcript. 26At the conclusion of Ms Molenaar's Investigation Report she found as follows: In relation to charge one about moving the vehicle in contrary to State Transit's instruction in that a passenger on board was not seated and did not have a firm hold of any fixture of the bus is PROVEN. This is based on the CCTV footage clearly demonstrated the bus moving when the passenger was in a location on the bus where there was no fixture to hold onto. Mr Stevens has not in his written response or disciplinary interview provided any mitigating circumstances as to why he chose to move the vehicle while this passenger was standing in a no-standing area, not safely seated or had a firm hold on any fixture of the bus. 27Ms Molenaar's Report also indicated that she had taken the following mitigating factors and other considerations into account: B/op William Stevens has been employed with State Transit for a period of 10 years. During this time, he has had his performance in relation to his role as Bus Operator and his obligations to the safety of the travelling public, other road users and the community at large brought to his attention on many occasions by different staff members, despite this he has continued to show a disregard for any instruction given by his employer. ADDITIONAL FACTOR CONSIDERED: B/op William Stevens has had two occasions in this matter to provide input to State Transit about this matter, and has been informed on both occasions that the female passenger safety was considered as being placed in jeopardy. B/op William Stevens has refused or neglected to show any form of contrition for his actions on both occasion. ADDITIONAL FACTOR CONSIDERED: B/op William Stevens has attended all State Transit training courses provided to bus operators, which contain re-enforcement of the requirement to wait for passengers to be safely seated or have a firm hold. Despite this re-enforcement B/op William Stevens still chose for no explainable reason to act in the manner he did. ADDITIONAL FACTOR CONSIDERED: B/op William Stevens continues to demonstrate a clear and repeated disregard for the safety of the travelling public, other road users and the community as a whole. B/op Stevens has been found previously to place the safety of others at risk and despite that has failed to alter his pattern of behaviour. 28Ms Molenaar acknowledged that during the course of her investigation she did not bring to Mr Stevens' attention any of the documentation concerning his work history and to which she had referred in both the Investigation Report and her statement 29In relation to the "Toolbox Talk" document she indicated that it was he record of a speech that was required to be relayed to Bus Operators by supervisors and/or managers in relation to their obligations for passenger safety. She had not written the speech, was not aware of who had written it, or who had relayed it to Mr Stevens. She had relayed the speech to employees in 2007, but not to Mr Stevens. It had been a standardised course delivered right across all of the Depots, not just Brookvale. She confirmed that attached to the speech was a printout from their Human Resources information system listing training that Mr Stevens had specifically attended and including this talk. 30She acknowledged that she had not put these two documents to Mr Stevens during her investigation or asked him if he recalled attending such a talk in 2007. 31In relation to the incidents concerning cancelling a route without authorisation, overtaking the two cyclists, not operating a school special correctly (dropping the child off) she indicated that she considered these to be relevant to the conduct of her investigation as the outcome was that Mr Stevens received a warning, and he did not follow his responsibilities an/or instruction. 32She had viewed the CCTV footage available concerning the two incidents with the cyclists as she wanted to be "comfortable" with the findings, she was not seeking to re-open those investigations, just verifying the findings. She did not inform Mr Stevens she was undertaking this process nor did she ask him to provide any further information about the incidents. 33In relation to the list of 186 matters that came from the customer complaints line, Ms Molenaar indicated that when a complaint was received and logged, STA were required, wherever possible, to identify the driver involved. It was possible to type into the computer system a driver's name and it would return the results for that driver. She was not aware of whether each of the complaints had been put to Mr Stevens, or if any of them had been put to him. She was taken to a sample of the complaints and indicated that she did not consider those to be relevant to the allegations against Mr Stevens. 34Ms Molenaar also indicated that it would depend on the nature of the complaint as to whether a driver was spoken to. STA understood that general types of things (e.g. the bus being late) were not the driver's fault. It was not a standard practice to require a Bus Operator to provide a General Report. She agreed that some complaints, and probably for the majority of the time, there would just be an "informal chitty-chat" between the Staff Supervisor and the Bus Operator concerned, depending on the nature of the complaint. If a complaint was serious it might warrant an E1, if it did not result in an E1 that would not mean it had not been brought up by the supervisor. It had not been her role to bring up those complaints with Mr Stevens and she was not aware of whether they were brought up with him. 35Ms Molenaar confirmed that her role was to investigate the allegations, make findings and prepare a Report to be passed on to the person who would make a decision as to appropriate punishment. She did not provide a copy of the Report to Mr Stevens and was not aware of whether anyone else did so. She agreed that she would not have known if Mr Stevens disagreed with anything in contents of the documents. 36Ms Molenaar also indicated that at no time during the disciplinary process did either Mr Stevens or his RTBU representative ask to see Mr Stevens' file or any documents relating to his history. She confirmed that the E1s and subsequent written warnings he had received had been acknowledged as received by him, as noted by his signature on the documents. 37Mr Larosa also deposed as to his background and role as Brookvale Depot Manager. 38He deposed that after he received Ms Molenaar's Investigation Report, he reviewed the Report which also included Mr Stevens' work history for the past several years. He considered all the information Mr Stevens submitted for consideration, including his written response to the allegation, and his answers in the disciplinary enquiry. In making his decision he considered that in all instances of Mr Stevens' submissions, he showed no contrition. 39He also considered Mr Stevens' training records and observed firstly that he had attended a specific training session in 2007 titled "Safety for Seniors", on the Bus Operator's specific requirements to wait for passengers to be seated or to have a firm hold before moving a bus. Secondly, since 2007 Mr Stevens had undergone a series of repetition of this instruction through Bus Operator Skills Maintenance programs and skill retrains with a BOT 2. However despite this training and instructions he had chosen to disregard this instruction. 40Mr Larosa also considered Mr Stevens' recent employment history, which demonstrated a clear and repeated disregard for the safety of the travelling public, other road users and the community as a whole. He also noted that on the last occasion of his disciplinary history, it was established he had breached STA's instructions and placed the safety of other road users at risk but shown leniency and provided with a final opportunity to rectify his behaviour. 41Mr Larosa also indicated that he viewed the CCTV footage of the incident as well as the CCTV footage relevant to the previous incidents with the cyclists. 42Mr Larosa deposed that after reviewing the Investigation Report, he found that Mr Stevens was afforded procedural fairness, and agreed with the finding that the allegation was proven. 43He deposed that on the basis of his review of all available evidence presented to him, he determined there was no available avenue of remedial action that could rectify Mr Stevens' reckless disregard for the safety of others and that the appropriate punishment was dismissal. He then spoke to Mr Stevens on 2 March 2012 and issued him the Notice of Punishment of dismissal. 44Mr Larosa said that the could not comment on whether any of the 186 complaints matters that concerned safety issues had been put to Mr Stevens as a lot of the issues were when other managers were controlling Brookvale Depot, all he could do was look at the reports he had in front of him and consider them. He agreed that some of the issues which did not form the basis of E1s he did consider relevant to his decision. 45He also indicated that the record was certainly out of the ordinary and a lot higher than the average in relation to complaints and he did consider the content in terms of his decision to dismiss Mr Stevens. 46He also indicated that the record which existed in the computer system did not actually record any actions that might subsequently be taken against a driver. It noted that a driver had been spoken to but not the outcome. It note any feedback to a customer and whether the customer had been contacted. 47He was aware that issues raised in the report were put to Mr Stevens because of the answers that were put in the 'Satisfy' system not from any personal dealing with him. He had also gone through his file but could not remember specifics. 48He confirmed that he had considered the documentation concerning the previous incidents that resulted in warnings (the cyclists and the schoolchild). 49He had not delivered the Toolbox Talk to Mr Stevens in 2007, but knew he had attended because everyone who attended was listed on the attendance sheet. He knew that because he did the delivered the talk at Mona vale Depot along with other supervisors. It had been a general instruction that had gone out from STA's head office that Depot Managers be involved. It was a serious matter that had arisen as a result of a Coronial Inquest at the time. 50He was also aware that the instructions were repeated to Mr Stevens through Bus Operator Skills and Maintenance Course he had attended as it was part of the course. They were standardised courses done by all Bus )perators every two years and undertaken at Strawberry Hills where they actually entered into the Aurion program whether they attended or not, it was not done through the Depot. Aurion showed Mr Stevens had attended such programs in 2009 and 2010. 51Mr Larosa confirmed that he did not have any conversations with Mr Stevens as part of his decision making process, apart from clarifying with him (at an earlier stage) parts of the transcript of the interview with ms Molenaar..

Appellant's Evidence 52Mr Stevens gave oral evidence in addition to his witness statement as filed (Exhibit 4). 53Mr Stevens deposed as to his account of the events on the 20 January 2012 after he arrived at the bus stop near Balgowlah Road and Condamine Street as follows: The bus had been standing at the stop for some minutes with no passengers on board, directly behind another stationary STA bus. While stopped he noticed a woman standing some distance away with her back turned to him who appeared to be engaged in conversation with another STA bus driver (possibly the driver of the bus in front) At 7.30am he checked his watch, shut the doors of the bus and prepared the wheel in preparation for leaving the stop but did not leave the stop straight away as he thought that the woman he had observed might want to join the bus. After doors had closed, the woman approached the doors, he became aware that she wanted to board the bus, opened the doors, and she walked up the stairs placing a bag she was carrying on the bus bulkhead of the bus. She started to rummage through the bag looking for her ticket and as she did so made a comment about the bus departing "right on time". He replied to the woman's comment by saying words to the effect of "We do our best to run on time". At around the same time that this first woman boarded the bus another woman appeared at the side of the bus and got on. The second woman walked past the first woman, dipped her ticket in the machine and walked up the aisle of the bus to take a seat. These were the only two passengers on board at this point. The first woman got her ticket out (at that point she was standing near the ticket machine), put her ticket in the machine, and after she did so he began to move the bus very slowly, expecting her to make her way to her seat. As he began to move the bus, she said words to the effect of "give me time, give me time". At this point he had already slowly edged out, preparing to enter traffic and made the decision to continue pulling out as he believed he had committed to the traffic and this was the most appropriate course of action at the time. He accepted that it would have been better to wait longer to move the bus until she had moved further into the bus. He did not see her stumble or have any trouble moving up the aisle. Up until this point he was not aware that she had her arm in a sling or had any physical difficulties whatsoever. As she moved up the aisle, he heard her make a comment to the second woman saying words to the effect of "it's unbelievable, my arm is in a sling". That was the first time he heard her make any mention of her arm or any other kind of impairment and he still had not seen the sling at that point in time. While she was standing at the front of the bus looking for her ticket she had her left side turned away from him for much of the time. He was also paying attention to the road and the mirrors of the bus as he was preparing to enter traffic. The trip then progressed without incident, this woman that was the last passenger to get off the bus at Wynyard and as she got off the bus she approached him and said words to the effect of "your very luck (sic) I didn't fall over". She then left the bus. He did not say anything in reply and it was only during this exchange that he first saw that her arm was in a sling. He noticed that the colour of the sling matched the colour of her clothing. 54Mr Stevens deposed that he viewed some of the CCTV footage that was provided to his RTBU representatives at the RTBU on 21 May 2012. He had not viewed the footage before this time and not viewed it before providing responses during STA's investigation of the incident. He was surprised when he viewed the footage as he did not believe he had entered the main flow of traffic while the woman was still at the front of the bus. 55He acknowledged in cross examination that he had been offered the opportunity of viewing the CCTV footage at the time of the interview, declined that opportunity as he believed he had a good recall of what happened and he was happy for his RTBU representative to have a look at that and come back to him to corroborate what he had put in his written statement. 56He deposed that what was shown in the footage was not his usual practice and accepted it was a mistake to move the bus into traffic while the woman was still standing at the front of the bus and for that he was sorry. Further, on viewing the footage, he realised the difficulty that the woman might have had with her arm in a sling and he was appalled by the prospect of any possibility that she might have hurt herself. 57Mr Stevens said that he was sure that he had related the facts correctly in the statement he made in answer to the E1 (his General Report) and was 'confident" the CCTV footage would bear that out. He was surprised that the events had taken longer to unfold than he thought and he was further into the traffic than he realised. He agreed that he had said that he had begun to move the bus before the passenger had taken her seat which accorded with the CCTV footage but was surprised by the length of time over which the incident occurred. 58Mr Stevens' also deposed that he attended an interview with STA during their investigation, did answer Ms Molenaar's questions, but that following advice given to him by the RTBU asked the STA to provide him questions in writing to consider before answering further questions. This did not happen. He was subsequently shown a transcript of the interview but refused to sign the transcript and agree to its accuracy as he believed that there were many mistakes. He agreed that during the interview he refused to answer further questions based on the advice of the RTBU, which he took at the time, but now regretted. 59He also deposed that during the interview it was put to him that he did not have any time pressures that would cause him to want to leave on time that day. He noted that they were always expected to leave on time where possible and as Bus Operators were often pressured to keep to timetable. 60Mr Stevens also pointed out that he did have a specific reason for wanting to make sure he was on time that day. He had an appointment with his doctor that day regarding an examination that he had to undergo for a workplace injury he received when he was assaulted at work. That appointment was at 9.15am (as recorded in his Journal for that day). On that day if his run was on time, he was due back at Brookvale Depot at 0850 and would then have had to carry out the usual tasks at the end of a run with regard to parking the bus. This allowed less than 25 minutes for him to prepare and travel to his doctor at Dee Why. He did not mention this earlier and had not thought to mention it during the interview where he was more concerned about the way the interview was progressing and was trying to concentrate on the documents that were being put in front of him. 61Mr Stevens stated that during STA's investigation he was not told that he had to respond to any other prior incidents or that STA was considering any other matters as part of their decision making process. After having had the opportunity of looking through a copy of the documents that STA had provided for the hearing, he indicated that he wanted to provide a response to each of the 14 issues referred to by Ms Molenaar, which he had not been aware STA were considering, as follows: 1.The document referred to an incident that took place in 2002 that did not involve any kind of misconduct. He recalled speaking to someone about the incident but did not recall if any written response was required by STA. There was no further information on this incident in his personal file. 2.The document referred to an incident where he accidentally went through a red light in 2002 when he was still a relatively new driver. He recalled speaking to a manager, Tony Hoven, about this incident but believed he took it no further. He did not believe he was given any copies of an Infringement Notice or was required to respond in writing to this matter. 3.The document related to him making a mistake and leaving from an incorrect stand at Central while a relatively inexperienced driver on a particular route. He believed he was spoken to about this incident. 4.The document related to a General Report he put in regarding an incident that occurred in 2004 and was included in STA's documents. 5.The document referred to an incident of letting children out of a bus in the middle lane but he refuted that he had ever been involved in any such incident, it was something he would not do and they did not even operate '244' services. He was positive that no such incident had ever even been put to him. 6.The document related to a customer complaint and he had no recollection of any such incident. It was his practice not to overload buses but he did sometimes have to ask people to move to the back of the bus out of courtesy for other passengers. 7.The document related to a customer complaint and he had no recollection of any such incident or of the incident being put to him. 8.The document referred to an apparent D.O.T. check. He had never heard of any such incident, had never had it put to him before and was not aware of any problems with D.O.T. checks. 9.The document was a file note of a conversation, it was not his file note, he had never seen it before or had been asked to agree to its contents. He had no recollection of any such conversation and noted that it was from 2007. He did not have any reason to dispute the contents of the note but refused to compromise safety for on-time running. 10.The document was a warning apparently issued in 2007 and he had no recollection of this warning being put to him, it did not reference any specific incident which made a response difficult. 11.The document referred to an incident that occurred in July 2007 and he denied using the expletive "fucking" as referred to. In this incident he was only representing concerns regarding a plan to cancel one of the two "mobile back-up" trucks that supported drivers. He tried to be civil at all times. 12.The document related to use of the seat belt and he did not recall any such incident or having such an incident put to me. 13.The document referred to a time when he departed Lee Street 20 minutes late from a run, there was another service directly in front of him on the same run so he departed to start another run on time. This was not an unusual occurrence and there was another driver waiting for his bus at Brookvale. The problem was that he forgot to phone this in to the Radio Room. He accepted responsibility for this mistake. 14.The document referred to a customer complaint from 2008 and he had no recollection of this incident or of it being put to him. It was his practice to pull the bus up at the bus stop, not at other places. 62In response to Attachment 2 of Ms Molenaar's statement referring to some kind of safety talk, he was aware of the incident, but did not recall attending any such briefing in 2007. 63Mr Stevens also responded to further incidents as included in Attachment 3 of Ms Molenaar's statement as follows: There were two incidents, one involving dropping off school children and another an incident involving a cyclist. He was not aware that these incidents would form part of the investigation or decision regarding the allegations against him and had previously responded to these matters (as attached to his statement.) Documents referring to an incident in December 2010 where he accidentally failed to call in to the Radio Room. 64Mr Stevens also responded to the complaints which appeared to be from the "Your Say' line as itemised in Attachment 4 of Ms Molenaar's statement and stated that other than matters already referred to above, these were not matters that he had ever been asked to respond to by STA and were were not matters that he had any idea would be part of this investigation or decision. 65He stated further that it was almost impossible to respond properly to these incidents as they had been put. It was his understanding that any matters that STA believed were serious were brought to an employee's attention more formally. Anyone could call the 'Your Say' line to complain about trivial matters or make unfounded allegations or to complain about things that were outside the control of a Bus Operator. 66Mr Stevens stated that he had also been shown a copy of an 'employee history' at the back of the larger bundle of STA documents and that employee history included information that he believed was incorrect and false, as well as instances that he did not believe had ever been brought to his attention. For example, he had never been counselled by any manager for letting school children out in the middle of a lane or for overloading a bus. There were also reports of collisions that he did not believe were accurate. 67Mr Stevens acknowledged that at no stage of the process, following receipt of the E1, or after his dismissal, did he ask to see his file. He did not recall whetehr that it was on the advice of his Union. The subject did come up subsequently when he was talking to Mr Edghill. He now said that he regretted not having a look at his file. 68Mr Stevens also acknowledged that he had received a Final Warning on 12 September 2012, understood the letter and had not challenged it. 69Mr Stevens had been unable to secure any other permanent employment since his termination and had lodged his appeal as he wished to be reinstated to the STA. 70Mr Stevens is aged 63 and as at the date of the hearing before the Board still retained his MOT Driver Authority.

Submissions on behalf of the Respondent 71Mr Hanson made oral submissions to the Board in addition to the written submissions as filed (Exhibit 1). 72It was submitted that STA considered that Mr Stevens had a recent history of poor customer service and unsafe driving habits. Reference was made to the E1s issued to him in September 2011 where two separate allegations he had operated an STA in a dangerous manner were found proven. The reviewing officer at the time considered his recent driving history and consequently provided him with a final opportunity to maintain the standards required of a STA Bus Operator concerning the safety of passengers and other road users. He was issued a Final Warning, which, amongst other, things stipulated his obligation to operate STA vehicles safely, and his responsibilities in the provision of customer service. 73It was also submitted that at no time from the issuing of the formal E1 did Mr Stevens or his RTBU workplace representative ask to see any files, his Depot files or his records or anything else. 74Both Mr Stevens and his representative were given the opportunity of viewing the CCTV footage and it was Mr Stevens' evidence that while his representative viewed the footage, he declined this opportunity preferring to rely on his memory. It was also the evidence that on the advice of the workplace representative he proceeded to be, at best uncooperative, and at worst refusing to answer questions. 75It was submitted that in relation to the incident on the 20 January 2012 Mr Stevens was operating his rostered work to a suburban street in Balgowlah. At the first bus stop of the service a passenger whose left arm was immobilised and clearly in a sling boarded the bus and stood adjacent to the bus driver's cabin. At the time the passenger was using her right hand to validate a ticket in the reader, making her vulnerable to movement because both hands were not in positions to grasp or move to grasp a support, Mr Stevens moved the bus away from the kerb and down the street, despite the presence of the passenger right next to him. 76STA rejected Mr Stevens' contention he was distracted by the presence of the other female passenger on the basis that this was not accurate as the other female passenger was seated at the back of the bus when he moved the vehicle as described, and there was no conversation or extended eye contact by Mr Stevens in regards to this other female passenger. 77It was submitted that the evidence was unequivocal in confirming the allegations against Mr Stevens. He had offered no reasons for his actions, that were substantiated by the available CCTV evidence, in moving the bus, and confirmed that he had no time pressures on that day or at the time of the incident. 78STA also rejected Mr Stevens' contention that he did not know about the presence of the passenger's left arm immobilisation as being disingenuous given the proximity and duration of time the passenger stood right next to him. 79Further, it was submitted that Mr Stevens had shown no contrition for his actions or the consequences that could have occurred as a result of his unsafe action. STA contended that Mr Stevens actions were deliberate, careless and reckless. Stanton C had referred to such an act as being " one where a person would reasonably foresee the consequence of or likelihood of inflicting injury or fear, and ignores the risk..." in PSA and Professional Officers' Association of New South Wales (on behalf of Lloyd Kerr ) v the Director of PE by her Agent the Director-General of the Department of Juvenile Justice [2009] NSWIRComm 1034 (at p38). 80It was submitted that in committing a reckless act Mr Stevens had also disregarded his obligations under the provisions of s.28 'Duties of Workers' of the Work Health and Safety Act 2011 to maintain safety standards. Those obligations were to: a)take reasonable care for his or her own health and safety, and b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and c)comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and d)co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. 81Further STA contended that, as stated in Stevenson v Mid Western Regional Council [2009] NSWIRComm 1086, "Driving a motor vehicle in an irresponsible and reckless manner when connected with employment, will often establish misconduct that can justify dismissal". 82STA also contended that its case had been proved to the standard required in civil matters, that is, on the balance of probabilities (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336). STA was also mindful that the onus of proof in matters of alleged misconduct rested with a respondent as per Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 and submitted that the requisite onus and civil standard of proof had been properly discharged by STA. 83STA submitted that Mr Stevens was afforded procedural fairness during the disciplinary process on the following basis: He was made aware of the allegations against him. The allegations were given to him in writing. He was given the opportunity to provide an explanation, or any other evidence, or mitigating circumstances he wanted to give through an opportunity to provide a both written response and participation in a disciplinary interview. He was offered the opportunity of a support person throughout the disciplinary procedure. He had access to the EAP during the disciplinary procedure. He was offered the opportunity to make submissions for consideration on what punishment he believed should be imposed, but he declined that opportunity. He was informed in writing for the reasons for his dismissal. 84STA submitted that the punishment of dismissal was appropriate, given Mr Stevens demonstrated unwillingness to maintain, and lack of commitment to, the safe working practices required of a STA Bus Operator. Consideration was given to Mr Stevens' employment history, including his length of service, but it was found the recklessness of the actions taken by him outweighed any mitigating circumstances. 85STA had also taken the following matters into account and submitted that the Board should also take those matters into account: 1.Mr Stevens had attended a training course on the requirement of Bus Operators to wait for people to be seated or have a firm hold on a fixture of the bus, and had received enforcement of this instruction. 2.He was on a final warning to demonstrate his ability to be a safe driver from a previous disciplinary action against him where he was found guilty of endangering another person's safety by his reckless and careless actions. 3.He had disregarded all instructions given to him, and ignored all forms of remedial action and deliberately and recklessly placed the passenger's safety in jeopardy (as per Stevenson v Mid Western Regional Council). 4.The explanation offered by Mr Stevens was considered and found to be insufficient, insincere and at odds with the evidence. 86The Board was asked to place heavy weight on the three E1s that Mr Stevens had received, as referred to in Ms Molenaar's evidence, concerning his attitude towards passengers and safety. 87It was submitted that reliance was placed by STA on the training Mr Stevens had received through the Toolbox Talk on 'Safety for Seniors' and the Bus Operator Skills Maintenance and Driving programs. Further, it was not as if Mr Stevens was unaware of his responsibility towards his passengers and their safety, particularly when entering and exiting buses. 88It was also submitted that it was uncontested that Mr Stevens was under timetable pressures, he was on a suburban street at the time and there was no pressure on him to do as he did without taking into account the passenger at that particular time. 89It was also submitted that from the time of the E1 through to his dismissal Mr Stevens had shown no contrition at all. It was no good for an employee to say two months after later "I'm sorry" when he had the opportunity to do so during that investigative process. 90In conclusion STA sought that the appeal of Mr Stevens be disallowed by the Board.

Submissions on behalf of the Appellant 91Mr Edghill made oral submissions expanding on the written submissions as filed (Exhibit 5) and in doing so traversed the events leading up to Mr Stevens' dismissal (as set out in the Background and Chronology above). 92It was submitted that in the light of Mr Stevens pleading guilty to the allegation against him, the Board's function was to determine whether the penalty of dismissal imposed by STA was appropriate in the circumstances, or whether it was harsh. 93It was submitted that the decision to dismiss Mr Stevens was harsh in the circumstances for the following reasons which were expanded upon by Mr Edghill in oral submissions: Mr Stevens made an honest error in moving the bus while the female passenger was still standing at the front of the bus, but there were reasons for him to move the bus that should be considered as mitigating factors. He was not aware at the time of moving the bus that there was any increased risk of injury to this particular passenger or she had mobility issues It was an error quickly admitted and never denied. The seriousness of his mistake was accepted and it was acknowledged as not his usual practice. There was no evidence presented by STA that demonstrated that he contravened any instruction given to him by STA. There was no evidence presented by STA of any harm being visited on the passenger and no evidence provided from the passenger about the incident or about her alleged complaint. He was a longstanding employee and a safe driver with an excellent record as a passenger vehicle driver. He was not afforded an adequate level of procedural fairness. His age and work experience meant that it was unlikely he will find any permanent employment in the future. That this mistake should mean the end of Mr Stevens' working life made the decision particularly harsh. 94It was also submitted that the contention by STA that Mr Stevens had seen the sling had been dropped. Whether or not he was aware that the passenger's arm was in a sling was a relevant consideration. If as STA contended, he had been, then that would add to the seriousness of the allegation and would detract from the harshness of the penalty. If he was not aware of that, then it would detract from the seriousness of the allegation and add to the harshness of the penalty. 95In support of these submissions, the RTBU referred to the written evidence of Mr Stevens and the various documents that he had attached as follows (Exhibit 4): Mr Stevens' General Report Form in response to the allegation; Mr Stevens' written response of 28 March 2010 to a complaint put to him regarding an incident where a bus carrying school children stopped at an incorrect stop; Mr Stevens' written response of 6 September 2011 to allegations put to him involving overtaking a cyclist; RTA Traffic Record Report for Mr Stevens dated 20 March 2012; Mr Stevens' 'Skills Maintenance Driving Assessment Form' completed on 24 November 2010. 96The evidence of Mr Stevens was summarised with particular reference to the following: After boarding, the female passenger had some interaction with Mr Stevens, spent some time getting her ticket out and then dipped her ticket. After this he began to move the bus slowly, expecting that she would be making her way to a seat without any problem. She then made a comment to Mr Stevens to the effect of asking for more time. By this point in time he believed he had already committed to the traffic and continued to pull out slowly to join the traffic. While this took place (over a very short period of time) he was not aware that the woman's arm was in a sling or that she had any kind of physical impairment. He accepted that the movement of the bus (albeit slow movement) while she was still at the front of the bus was a mistake. When he viewed the footage, he was surprised to see that the woman appeared to still be at the front of the bus when he joined traffic; he had previously thought that she had moved to take her seat earlier. He did not notice her sling due to her position (with her left side positioned away from him), due to his concentration on other things such as the mirrors and the road, and it being the same colour as her clothing. Mr Stevens expressed remorse for the incident, particularly given his knowledge now that the woman had one arm in a sling. 97It was submitted that the actions of Mr Stevens, while now admitted as a mistake, were reasonable actions for him to take at the time. 98It was also submitted that it was not correct to say that Mr Stevens had not cooperated with the investigation and that did not correlate with the evidence. He provided a written response, attended an interview, was given advice not to answer questions but did so. He did not respond and say "no I didn't do it" but responded and said "to the best of my knowledge this is what happened". It was incorrect to say that he had not accepted responsibility or had not participated in the interview. 99It was submitted that Mr Stevens' statement also addressed a number of contentions raised by STA about his history as a driver and an employee. However while a comprehensive review of past incidents and allegations was undertaken during the investigation and decision making process by STA, Mr Stevens was not informed that such matters were being reviewed by the decision-maker. 100It was submitted that Mr Stevens' statement addressed 14 issues raised by Ms Molenaar and this was the first opportunity that he had to respond to these issues as part of this case. These included matters that had never been put to him by STA. 101It was submitted that STA had relied on two earlier disciplinary matters, firstly involving a cyclist, and secondly an occasion where Mr Stevens made a mistake regarding the route and drop off point of a bus with school children on board. He had previously responded to STA regarding these matters (as attached to his statement) and his responses demonstrated that these matters were distinguishable from the matter currently before the Board. 102It is also submitted that these past matters should not be considered adequate justification for Mr Stevens' dismissal in relation to the latest allegation, as it appeared STA were suggesting. They were sufficiently different from the current allegations and had already been dealt with by Mr Stevens and STA. 103It was submitted that Mr Stevens had also attempted to respond to the large number of matters raised as to his history which included anonymous complaints made to a complaints hotline. Again, these were matters that had never been put to him and complaints about things that would be out of his control as a Bus Operator. 104It was submitted that as evidence of the safe and proper manner he carried out his duties as a Bus Operator, reliance should be placed Mr Stevens' RTA Traffic Record Report which showed that he had a 'clean' record with the RTA with no infringements or loss of demerit points recorded against him for his driving. 105It was also submitted that Mr Stevens' 2010 'Skills Maintenance Driving Assessment Form demonstrated the considerable skill and care with which he drove a bus with the report showing a 100% result on a test administered with the approval of STA and that was designed to measure the safety and comfort of the driving of Bus Operators. 106It was submitted that this evidence demonstrated that Mr Stevens' actions in moving the bus were reasonable as he initially believed that the woman was taking her seat without any problem. When she complained to him, he believed he had already committed to traffic and decided to continue to join traffic slowly. He had no way of knowing that there could be any increased risk to the female passenger as he not view any kind of impairment and could not see the arm in a sling. 107It was further submitted that Mr Stevens was a safe driver who deserved the opportunity to return to work at STA. 108The RTBU rejected the STA's contention that Mr Stevens was disingenuous when he stated that he was not aware that the woman had her arm immobilised in a sling and his statement had adequately addressed this matter. 109It was also submitted that his statement was supported by STA's CCTV footage of the incident (particularly footage from the 'Driver Cam', 'Front Door Cam' and 'Rear Door Cam') which did not show him spending any considerable time looking at the woman, and instead showed that his concentration appeared to be directed towards the road and the mirrors. The footage also confirmed that the passenger had her left side turned away from Mr Stevens during the incident and that the colour of the sling was substantially the same colour as her clothing. 110It was submitted that in these circumstances, the Board must accept the statement of Mr Stevens that he did not notice the sling when the woman got on the bus. 111The RTBU rejected STA's contention that Mr Stevens moved the bus knowing that the passenger was in a vulnerable position. Rather, as stated by Mr Stevens, at the time that he started to move the bus he believed that she would be moving to take a seat on the bus without any problem. As already referred to he was not aware of the passenger's impairment and as evidenced by his statement and by the CCTV footage, he was focussed on the task of moving the bus into traffic. He was not aware when he started to move the bus that the passenger was in a vulnerable position. He began to move the bus only after she dipped her ticket and by the time the woman complained he felt that he was already committed to joining traffic. 112The RTBU rejected STA's contention that the passenger tipped over the ticket machine as Mr Stevens moved the bus and submitted that this assertion was not supported by any evidence. The relevant video footage included the following: The 'Driver Cam' footage did not show the passenger tipping over the ticket machine and simply showed her standing towards the front of the bus. The 'Front Door Cam' footage showed the passenger appearing to lean on the bulkhead of the bus and it did not show her tip over anything. The 'Rear Door Cam' did not show the passenger exhibit any discernible loss of balance. 113The RTBU rejected the STA's contention that Mr Stevens had no time pressures that would have caused him to move off quickly and in response the Board's attention was drawn to his statement in which he noted that Bus Operators were regularly reminded of STA's expectation that they keep to timetable. He had also pointed out that he had considerable time pressures in relation to a medical appointment that he had to attend that morning as evidenced by his Journal which indicated he was due to arrive back at Brookvale Depot at 0850 before a medical appointment at Dee Why at 0915. It was submitted that this would clearly be a time pressure that would require him to try to keep to time on his route. 114The RTBU rejected the STA's contention that Mr Stevens disregarded his safety obligations. Mr Stevens did try to take reasonable care at the time; unfortunately he simply made a mistake in that he started moving the bus before checking the woman had moved towards the back. Further, it was submitted that had he brought the bus to a sudden halt part way into joining traffic (such as when the passenger complained of needing more time) then this would have presented a far greater risk both to the passenger at the front of the bus and to other road users. 115The RTBU responded to STA's contention that that Mr Stevens had attended a training course where he was given instructions about waiting for people to be seated or to have a hold of a fixture on the bus before moving off relying on a 'Safety for Seniors' briefing. 116It was submitted there were three problems with STA's evidence which was given by Ms Molenaar: Firstly, it appeared to be a 'Tool Box Talk' that allegedly took place in May 2007, almost five years before the incident involving Mr Stevens and there was no evidence of any other or more recent instructions. Secondly, the talk related specifically to senior citizens and STA's CCTV did not appear to indicate that the passenger was a senior citizen and Mr Stevens was not aware of any kind of impairment that the passenger had that might have caused her difficulty in taking hold of a fixture on the bus. Thirdly, the evidence was presented in such a way that could not be tested. 117On this last point the RTBU submitted that there was no evidence of Mr Stevens receiving a copy of the document referred to (the script for the talk), and no evidence demonstrating this was what was presented to him/other employees either in May 2007 or at any other time. Further, there was no real evidence that he attended any such talk at all, other than a note apparently made on STA's computer system and no statement from any person confirming that they gave these instructions to Mr Stevens at any time. There was no evidence from anybody who delivered that talk or that it was the same as that delivered at other Depots. The Board was simply asked to accept STA's assertion that this took place. 118It was submitted that this evidence did not enable the Board to come to the conclusion that Mr Stevens was given any meaningful or specific instruction that he breached, accidentally or otherwise, through his actions of 20 January 2012. 119The RTBU rejected the STA's contention that Mr Stevens disregarded "all instructions" and breached the Code of Conduct. The relevant extracts of the Code were not in evidence and the Board was simply asked to accept STA's assertion that the Code has been breached without being given the opportunity to form its own view. Further, there was no evidence in the documents provided by STA of Mr Stevens being given any specific instruction that was 'disregarded' by his actions of 20 January 2012. 120It was submitted that there was no evidence of Mr Stevens disregarding STA instructions and no evidence of any harm being visited on the passenger involved in the incident. 121Mr Edghill rejected STA's contention that Mr Stevens had shown no contrition and pointed out that throughout the course of the investigation Mr Stevens was forthright, honest and open, and even blunt at points. He responded truthfully to the allegations put to him, attended an interview, answered questions truthfully and at no point contended that the allegation wasn't serious, or anything other than a mistake on his part. 122It was submitted that there were procedural fairness issues and problems with STA's evidence arising from the statements of Ms Molenaar and Mr Larosa which demonstrated that STA considered a large amount of material that was either unknown to Mr Stevens during the investigation, or that he could not reasonably expect would form part of the decision making process in his case. This material included the 14 matters raised by Ms Molenaar in attachment 1; the 'Safety for Seniors' briefing; the issues relating to the 'cyclist' and 'school bus route' matters; and the various anonymous complaints to a complaints hotline. Mr Stevens also disagreed with his employment history as it appeared in the Investigation Report and this Report was never provided to Mr Stevens. 123It as also pointed out that Mr Stevens was not dismissed on the basis of the two earlier incidents which resulted in warnings. He had responded to those to warnings and it was open to the Board to consider those responses and to consider the conclusion that the Board came to on those occasions. It was not appropriate for the Board to seek to enter its own investigation or examination after the fact by viewing the CCTV footage after the conclusion of this hearing. 124It was submitted that the material considered by STA included matters that had never been put to Mr Stevens in the past, matters that he disputed, matters that he may have wished to contextualise and matters that Mr Stevens could not reasonably be expected to respond to as they amounted to anonymous complaints made over a long period of time. This was particularly the case in relation to the 186 customer complaints where it could not be certain that Mr Stevens knew about an issue, could be expected to respond and they should have been identified to him to enable a response if that was possible. 125It was submitted that, as a matter of procedural fairness, Mr Stevens had a right to put forward his case, and in order for him to put forward his case, he needed to be aware of the information that the decision maker was considering so that he could comment on it, rebut it, or qualify it with further information of his own. That STA relied on this information in making their decision without giving Mr Stevens an opportunity to respond to it meant that they had not given him an adequate opportunity to put his case forward before making their decision and, that in turn, meant that they did not afford him an appropriate level of procedural fairness. 126The RTBU referred the Board to the decision in Jarratt v Commissioner of Police for New South Wales and Anor [2005] HCA 50 and it was submitted that in dismissing Mr Stevens STA was exercising a statutory power conferred on it by, amongst other acts, the Transport Administration Act 1988 and that the exercise of that power prejudiced Mr Stevens' interests. In exercising such a power, STA were obliged to do so fairly and in accordance with natural justice. It followed ( and it was assumed that it was agreed) that Mr Stevens had to be afforded procedural fairness by STA in their investigation and decision making process. 127In relation to just what amounted to natural justice and procedural fairness the RTBU drew the Board's attention to the following decisions in some detail and with some particularity: Dixon v Commonwealth (1981) 61 ALRR 173 at 179, and Commissioner of the ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 at 28. 128It was submitted that it was clear in this case that STA held and considered a large amount of adverse material in relation to Mr Stevens and it was also clear that he was given no opportunity to see, understand or respond to that material. On that basis, the Board should conclude that Mr Stevens was not afforded adequate procedural fairness. 129It was further submitted that to compound the problem, that material which was inappropriately used by STA against Mr Stevens as part of their decision making process was now presented by STA to the Board and the Board was asked to give consideration to this material in deciding on this appeal. On that basis any information that was not put to Mr Stevens during the course of the investigation and decision making process undertaken by STA must not now be considered by the Board and should be struck out and given no consideration. 130It was also submitted that any assertions made by STA that were not backed up with evidence that could be tested (such as assertions surrounding the alleged complaint made by the female passenger seen in the provided video footage) must be disregarded by the Board. 131It was also submitted that STA's inclusion in their case of CCTV footage relating to two previous incidents ('cyclist incident' and the 'school bus route incident') was in no way relevant to the current allegation against Mr Stevens or to the conduct that the Board was being asked to consider in this appeal. This appeal was not an opportunity for STA to revisit any alleged past discretions. Such matters were only relevant to the extent that the issue was put to Mr Stevens, he responded and a decision was made (where there was no right of appeal) that formed part of his employment history. It was submitted that it would not be relevant or appropriate for the Board to consider such CCTV footage. 132It was submitted that the decision to dismiss Mr Stevens was harsh. He had made a mistake that he admitted to and there were considerable mitigating factors at play when that mistake was made. The mistake did not lead to any evidenced detriment being visited on STA or on any of their passengers. The only two indiscretions that had been properly put to Mr Stevens in his employment history were sufficiently different to the current allegations and not of a sufficiently serious nature that they should add weight to STA's case in this appeal. They had already been dealt by the Mr Stevens and STA. Mr Stevens had demonstrated that he was a safe and conscientious driver who deserved to be given another chance. 133It was also submitted that Mr Stevens' age of 63 made it likely that, if the decision to dismiss was upheld, it would mean the end of his working life. In circumstances such as these, where STA had at its disposal a range of punishment options other than dismissal, this decision should be considered particularly harsh. 134In conclusion it was submitted that Mr Stevens' appeal should be upheld and STA's decision to dismiss Mr Stevens should be set aside and Mr Stevens be reinstated to his former position and location as a Bus Operator Level 2 with full back pay and continuity of employment. 135In the alternative it was submitted that if any penalty was imposed it should be a financial penalty at the lower end of the spectrum. An unpaid suspension of more than one week would remain harsh.

Submissions in Reply on behalf of the Respondent 136In reply to the RTBU's submissions Mr Hanson submitted that nothing in the evidence of Mr Stevens went to actual mitigation of the event. 137It was also contended that the evidence as to the investigative process showed that Mr Stevens was not 100% cooperative. The Board was asked to place such weight as it deemed fit on that particular matter. 138Mr Hanson also submitted that when Mr Stevens declined the opportunity to view the CCTV footage then STA could only make a decision based on the evidence available to it at that time and not two months later. The Board was asked to place great weight on this issue. 139Mr Hanson also emphasised that the RTBU could not challenge the evidence of Mr Stevens' participation in the Toolbox Talk and at the same time place reliance on his driving assessment. Both were part of the Aurion record. That was a business record of STA. Each employee had such a record. Mr Larosa was entitled to look at that record and more importantly place due weight on its accuracy. 140Mr Hanson acknowledged the time pressures placed on Mr Stevens to keep to timetables. He was a professional driver of ten years' experience. STA expected him within normal limits to keep to a timetable. On this day he was not running either late or early. It was not contested that he had a medical appointment but it was also uncontested that he was on time and did not need to make up time on that basis. 141On the issue of procedural fairness it was submitted that an employer not only had an responsibility, but also an accountability, to review an employee's file when considering any form of penalty or disadvantage to an employee. Mr Larosa considered a wide range of material as he should have done. 142Mr Hanson also pointed out the specific wording of the Final Warning issued to Mr Stevens where it indicated "action will be taken and consideration will be given to forms of discipline up to and including termination". In this matter Mr Larosa considered that and set out his reasoning in his statement. 143It was also submitted that if the Board were to accept the RTBU's assertion that Mr Steven's was a driver of considerable skill and diligence then it must also accept the assertion that he should not have done what he did in the first place. 144Mr Hanson also rejected the RTBU's assertion that the decision was harsh and imposed on Mr Steven's a penalty of continuing unemployment on the basis that no evidence had been given on this issue and he had not supplied any mitigating factors. 145In conclusion it was submitted that given Mr Stevens' record since 2010 he had shown at best, carelessness concerning passenger safety and the safety of other road users, and at worst, an indifference to the safety of those people. On that basis STA still saw dismissal as the primary discipline.

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 .

Order(s) 194In relation to the appeal (TAB12/90) the Board makes the following orders: 1.The appeal is allowed; 2.The decision of State Transit Authority to dismiss Mr Stevens is set aside and he is to be reinstated to the position of Bus Operator Level 2 at the Brookvale Depot without loss of continuity subject to the following; i.Mr Stevens is suspended without pay for the period from 2 March 2012 to 2 June 2012 inclusive; ii.Mr Stevens is to be regressed to the position of Bus Operator Level 1 for a period of 6 months (26 weeks) to take effect on and from 3 June 2012 until 3 December 2012. 3.State Transit Authority is to make a payment within 14 days of the date of this decision of the amount he would have received as a Bus Operator Level 1 (based on a normal roster) from State Transit Authority from 3 June 2012 to the date of this decision, but for the decision of State Transit Authority to dismiss him. Elizabeth Bishop Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2012