Stevenson v Mid Western Regional Council

Industrial Relations Commission (NSW)|2012-07-13

DECISION 1This is a decision in an appeal pursuant to clause 32 of the Transport Administration (Staff) Regulation 2005 against the decision of State Transit Authority Division of the NSW Government Service (the STA) to dismiss Mr Robert William Darcy from the position of Bus Operator. 2Mr Darcy commenced employment with the STA on 16 June 1990 as a Trainee Bus Operator at Brookvale Depot. 3At approximately 7.30 am on 4 April 2012, the Appellant parked his personal vehicle, a blue Jeep Wrangler, in the first of a double bay parking space in Brookvale Depot Staff Car Park. 4At approximately 7.40 am, another employee of the STA, Ms Yael Bornstein, Acting Regional Fleet Coordinator, parked her personal vehicle, a pink Daihatsu Sirion, directly behind the Appellant in the second of that double bay parking space. 5The staff car park is set out in such a manner as to allow for "double parking". In other words, the parking of vehicles in such a manner as to restrict or prevent the exit of the car in the internal space if there is a car parked behind it in the external space. 6The common practice that has developed amongst users of the staff car park is that the person who parks in the internal space leaves a note on their vehicle indicating what time they expect to exit the car park. The person who parks in the external space then determines whether or not it is appropriate to park in the external space given their exit time. Sometimes people leave their keys in their car, or at the office desk, to allow for their car to be moved. 7All cars parked in the staff car park are required to display a Sydney Buses identification card. 8An incident took place in the car park that led to his dismissal. The incident was captured on CCTV and is described below. 9At approximately 12 noon, the Appellant returned to the Depot at the conclusion of his rostered shift. Upon arrival at the car park to leave the premises, he found that he could not move his vehicle as it was blocked in by Ms Bornstein's vehicle. 10The Appellant reported to the Duty Office at approximately 12.07 pm and requested that the Supervisor make a broadcast call to staff seeking the owner of the vehicle attend the car park. In the absence of an immediate response to the broadcast, Mr Darcy advised the supervisor that "he would move it". The Supervisor directed the Appellant not to "move the vehicle himself". 11The Appellant returned to the car park and, at approximately, 12.12 pm, was captured on CCTV images placing a newspaper on his bumper bar. He was then captured reversing his vehicle directly into Ms Bornstein's car thereby pushing it a distance of approximately one metre backwards. 12He alighted from his vehicle at approximately 12.13 pm and inspected his vehicle. He returned to his vehicle approximately one minute later and proceeded to reverse his vehicle into that of Ms Bornstein a second time pushing it a further half a metre. 13At approximately 12.15 pm Ms Bornstein arrived at the car park in response to the broadcast and with the reported intention of moving her vehicle out of the way of the Appellant. 14Despite the presence of Ms Bornstein standing beside her car, the Appellant left the depot premises immediately without stopping and speaking to her about the possibility of damage and without reporting the situation to the depot management. 15Ms Bornstein was interviewed about the incident at approximately 1 pm and she provided management with a statement. 16Management viewed the CCTV images at approximately 2 pm and an investigating officer was appointed to conduct an investigation into the incident. 17An interview was conducted with the Appellant in the presence of the RTBU delegate, at approximately 3.50 pm that afternoon. At the conclusion of that interview, the Appellant was issued with a Form E1 and suspended without pay until the completion of the disciplinary proceedings against him. 18A report, including findings of the investigation, was completed and submitted by the investigating officer to the Depot Manager-Brookvale for consideration on 20 April 2012. 19The Depot Manager-Brookvale determined that the punishment of dismissal was appropriate considering the deliberate intention of the Appellant to bulldoze another employee's vehicle and refuse to stop and speak with its owner.

The Allegations 20Mr Mullen said he wrote to the Appellant on 4 April 2012 setting out the allegations and the particulars of the allegations against him and seeking a written response within seven days. Details of the breaches alleged against the Applicant are as follows:

Charge One You breached State Transit Code of Conduct when you deliberately reversed your private vehicle into another employee's private vehicle on State Transit property. Particulars of Charge One (a) On the 4th of April 2012 at approximately 12.12 pm you were observed placing a newspaper on your back bumper of your personal vehicle. (b)You were then observed getting into your personal vehicle and reversing it deliberately into the vehicle parked behind yours.

Charge Two You breached State Transit Code of Conduct when you deliberately reversed your private vehicle into another employee's private vehicle on State Transit property. Particulars of Charge Two On the 4th of April 2012 at approximately 12.13pm you were observed deliberately reversing for a second time into the vehicle parked behind yours in such a manner as to move that car approximately 1 metre.

Charge Three You breached State Transit Code of Conduct after causing damage to another employee's property you left the scene. Particulars of Charge Three On the 4th of April 2012 at approximately 12.15 pm after reversing into the vehicle two times behind you, moving it a distance of approximately one and a half metres, you left State Transit's premises without speaking to the owner of the vehicle or reporting the damage to Depot Management.

TRAINING 21When the Applicant commenced employment on 16 June 1990, he participated in an induction course. As part of that induction, he was issued with a copy of the STA Conduct of Conduct and Bus Operations Handbook. 22In 2008 Mr Darcy received a revised version of the STA Code of Conduct and Bus Operations Handbook. 23Mr Darcy was required to undertake retraining to rectify several safety and customer services concerns raised with him on 10 March 2010 as a result of a discrete check undertaken by the Respondent. 24On 9 March 2011 the Appellant received a letter from the STA in regards to his attendance record.

STA Code of Conduct 25The sections of the STA Code of Conduct allegedly breached by the Appellant relevantly provide the following:

Professional Conduct In the interest of health and safety, efficiency, harmony in the workplace and the public image of State Transit, all employees must maintain an appropriate professional standard of behaviour. This means that you must: c. ensure adequate records are kept, where required, to support decisions made; ewhen using State Transit's resources ensure they are utilised efficiently, effectively and lawfully; i.be environmentally aware while you are performing your duties.

4.18 Compliance As a State Transit employee, you are required to perform all the duties of your position promptly and efficiently, in accordance with relevant legislation and regulations, relevant awards and agreements, State Transit policies and lawful and reasonable instructions from your supervisor or manager. ..... Breaches of this Code of Conduct are likely to result in counselling and/or disciplinary action, and in serious cases this may warrant dismissal. You should be aware of the Guidelines for Managing Conduct and Performance Procedures.

Issues 26The Union identified the issues that the Board is required to determine as follows: (1)Can the allegations made by the STA against Mr Darcy be substantiated on the available evidence? (2)Are the allegations made by the STA against Mr Darcy examples of employee misconduct? If the answers to both the above questions are in the affirmative, then (3)Is the dismissal of Mr Darcy by the STA an appropriate punishment for the proven misconduct?

The Respondent's Evidence 27Ms Yael Bornstein submitted a written statement in which she confirmed that she was the driver of the vehicle that had blocked the Appellant's vehicle in the Brookvale Depot car park. 28Ms Bornstein gave evidence that she had recently been appointed to the position of Regional Fleet Coordinator for Brookvale, Mona Vale and North Sydney region. The person who previously held that position, Mr Greg Keys, had offered to train her in the relevant processes and that was whey she was at the site. She had used her swipe pass at the boom gate and when it opened she drove in and parked in the first available spot she came across. She confirmed that it was not the first time she had parked in that car park, having parked there at once before. She had not left a note in her back window, it had not occurred to her look for a note in the back window of the car she had blocked in and had not left her keys in the ignition. 29Ms Bornstein stated that, whilst standing in Mr Greg Key's office at approximately 12.10 am, a telephone call was received from Mr Phil Ivey, Safety Advisor, Northern Region, asking if she was the owner of the pink Daihatsu Sirion. Greg Key knew that she was the owner and confirmed this with Mr Ivey. Mr Key advised her that she was required to move her car. 30She said she immediately picked up her car keys, left the office and proceeded to the car park to move her car. She said she was shocked to find that her car was not where she had parked it earlier in the morning. She saw that her car had been moved and was in the middle of the car park aisle. There was no car in front of the spot where her car had been as the said blue/black jeep that had been parked in front of her vehicle that morning was, at that moment, reversing out of the spot and past her vehicle. 31Ms Bornstein said she inspected the front of her vehicle and noted that there was some damage. She said she moved her car from the middle of the car park to the first car space vacated by the Jeep. She said she also noted black skid marks on the ground where her car had been pushed out of the way. 32She said she was then approached by Phil Ivey and the General Manager, Northern Region, Mr Craig Webster and while she was talking to them abut the incident, another Bus Operator approached Mr Webster and advised that he had witnessed the incident, told the Appellant that he could not do what he was doing and received a response from the Appellant to "F... off". 33She returned into the depot and proceeded to forward an email to Craig Webster, confirming her advice about the incident in writing. The email was in the following terms: I drive a pink Daihatsu Sirion [registration supplied]. On 4 April when I parked in Brookvale car park I was asked to move my car at about 12.20 pm Immediately I went down to the car park to do so. Before I could I noticed my car was half out of it's spot and a male driver in I think it was a white 4WD was manoeuvring out of the car park. He pushed my car out of it's spot. I want him disciplined and for him to pay for the inspection on my car to ensure no damage was caused, though I expect there is flat spotting of tyres and reduced life due to them being scrubbed. 34Ms Bornstein stated that she was interviewed later that day by Mr Andrew Mullen, Staff Supervisor, Brookvale Depot. She received a summary of the record of interview for her records. 35Finally, Ms Bornstein advised that she had incurred a cost of $1100 as a result of the action taken by the Appellant. The cost had been paid by her insurer. 36During cross-examination, Ms Bornstein confirmed that she had not completed a request form to obtain the necessary permission to park in the staff car park at Brookvale. 37Attached to Ms Bornstein's statement was a copy of an email from Phil Ivey to Domenic Larosa, dated 4 April 2012, setting out his knowledge of the incident: Further to our conversation re the car park incident today. 12.11 pm- I received a call from Richard White (Shed driver) asking if there was any member of staff working in the Regional office with a red Daihatsu Sirion. As I was unsure of the owner I stated I would find the owner and call him back. 12.12 pm- I called Greg Key to check if the visiting staff member working with him owned the car in question. Greg stated the car belonged to Yael & she would go & move the car immediately. 12.13 pm- I placed a call to Richard White to inform him the car driver was on their way to move the vehicle. Richard stated he did not wish to be part of this as B/O Darcy was going to push the car out of the way with his Jeep. 38Mr Dominic Larosa, Depot Manager-Brookvale, provided a statement in the proceedings in which he advised that his role allowed him access to appropriate business records, including CCTV footage. 39He stated that, upon receiving a report from Ms Bornstein indicating that another employee had reversed into her car causing damage and then left the car park without speaking with her, he conducted an investigation to identify the identity of the driver involved in the incident. It was discovered that the driver of that vehicle was the Appellant. 40Mr Larosa said he then requested that Mr Andrew Mullen, Staff Supervisor-Brookvale Depot, conduct an investigation into the incident. 41For his part, Mr Larosa conducted a preliminary interview with the Appellant at 3.50 pm in the presence of the RTBU delegate, Narelle Sinclair, asking the latter to provide an explanation for his actions earlier that day. Mr Mullen was present at the meeting in his role as Investigating Officer. Mr Mullen transcribed the notes he took into the following record of interview: Domenic Larosa asked BO Darcy if he knew why we are here to which BO Darcy replied yes. BO Robert Darcy then stated "What can you do about it, its private property." Dominic Larosa then advised BO Darcy that it is State Transit property. BO Darcy then advised that when he parked his vehicle at approx. 7.20 am, he left a note on his vehicle stating that he was departing at 12.00 pm. Dominic Larosa advised that the owner has called Police and are now involved which will be between yourself and the owner. Domenic Larosa then issued BO Robert Darcy an form E1 and a Notice of Punishment - suspending him without pay. Dominic Larosa advised BO Darcy that this was a very serious matter. 42Mr Larosa confirmed that he had suspended the Appellant without pay until the completion of the disciplinary proceedings against him were completed. 43Mr Andrew Mullen, Staff Supervisor-Brookvale Depot, provided a statement in which he confirmed that he had been requested by Mr Larosa to commence formal disciplinary proceedings against Mr Darcy. 44Mr Mullen stated that he commenced by conducting an interview with Ms Bornstein and obtaining written reports from Messrs Sid Waters, Alan Hodgson and Brian White. 45Mr Brian White was the Duty Manager who was requested by the Appellant to broadcast for the owner of the car blocking him in and who directly advised the Appellant not to continue with his threat to move the vehicle himself. Mr White's report stated as follows: B.O. Darcy came into the D.O. office and said his car was blocked in by a red Daihatsu. I gave a broadcast in relation to this vehicle and also contacted the maintenance section. There was no response and B.O. Darcy said he would move it. I said he better not. Soon afterwards B O. White pointed to the security screen which seemed to show a vehicle pushing a red car. 46Mr Alan Hodgson was the Bus Operator who was present in the car park and witnessed Mr Darcy reversing twice into Ms Bornstein's car. Mr Hodgson's report stated as follows: I was walking toward to my car to put thing away and notice that Darcy was reversing onto front of her car he did it two time so he can get out his space to go home. 47Mr Brian White reported on the Appellant's alleged breach of the terms and conditions of the car park. Mr White's written report relevantly stated: Over the past 18 months, I have on numerous occasions I have placed notices on Robert Darcys vehicle for parking in non designated areas causing inconvenience to other employees. Due to his constant failure to adhere these notices, I have also spoken to Robert Darcy personally requesting he comply with the terms and conditions parking the employee car park. On all occasions when I spoke to Mr Darcy, he showed no interest in complying with the terms and conditions or any consideration for any other employees. After constant breaches in adhering to these simple requests, I notified Domenic Larosa, Depot Manager Brookvale. 48Mr Mullen stated that he had also obtained and viewed the CCTV footage from the Depot's internal security system. 49Finally, on 10 April 2012, Mr Mullen received a written response from Mr Darcy to the allegations against him. Mr Mullen stated that at an interview with the Appellant held on 17 April 2012, the latter was asked a series of questions to clarify his written response but he declined to answer all questions that were put to him. 50Mr Mullen issued a report on 20 April 2012 in which he found all charges against the Appellant proven. 51During cross-examination, Mr Mullen confirmed that he had no idea, prior to the incident, whether Ms Bornstein had parked in the staff car park or the visitor's car park. 52On 23 April 2012, Mr Larosa reviewed those findings, considered additional factors and other considerations and determined that dismissal was the appropriate penalty. He said that he weighed the findings and the evidence against Mr Darcy's record of employment and length of service: Firstly, he considered that while the Appellant's 22 year service with the Respondent was significant, it was not sufficient to mitigate his conduct and allow for leniency given the deliberate nature of his actions and given the several infractions for various offences over the years. Secondly, while he accepted that Ms Bornstein had committed a minor infraction of the terms and conditions of the use of the car park, he did not accept the Appellant's argument that he was justified in the course of action he took. Mr Larosa concluded that there was no justification for the intentional damage of another employee's property on STA premises. Thirdly, he considered that the Appellant's infraction of the terms and conditions of the use of the car park was serious in that the latter chose to ignore the STA expectations in relation to the behaviour and conduct of its employees and took the matter into his own hands. Fourthly, Mr Larosa considered the contents of the preliminary interview with the Appellant and concluded from the non co-operative attitude he displayed that he was not remorseful for his actions. 53Mr Larosa stated that, on the basis of the above, he agreed with the Investigating Officer's findings that the allegations against Mr Darcy were proven and were of a serious nature. 54In determining what disciplinary action to impose, Mr Larosa said he considered the following factors: Firstly, the fact that the Appellant was aware that there was a reasonable probability of damage to Ms Bornstein's car and chose to disregard that knowledge to suit his own immediate needs. Secondly, he had formed the opinion that, contrary to the Appellant's contention that he left the car park because he did not think there was any damage to her car, the Appellant left without speaking to Ms Bornstein because he intended to avoid a confrontation with her because he knew the action he had taken was wrong. 55Mr Larosa stated that he reached the conclusion that the Appellant's proven deliberate actions, which had resulted in damage to another person's property, coupled with his evasiveness during the disciplinary process were sufficient to overcome any consideration of his long service. 56Mr Larosa issued the Appellant, on 24 April 2012, with a Notice of Punishment dismissing him from employment.

The Appellant's Evidence 57Mr Robert Darcy provided a written response on 10 April 2012 to Mr Mullen in relation to the allegations made against him. He stated that on the day of the incident he had left a card, clearly visible, on the rear window of his vehicle stating "12 p" meaning that his intended exit time was 12 noon. He said that when he got to his car he found that he had been blocked in. No keys had been left in the car and no Sydney Buses Identification card was displayed. 58Mr Darcy stated that his first reaction was to locate the owner of the vehicle and ask them to move their vehicle. He went to the Depot Office and made enquiries and broadcasts were made and no response was received. He said a number of people were approached and no-one was able to identify the owner of that vehicle. 59Mr Darcy said he returned to his vehicle at 12.15 pm. He commenced to doubt whether the owner of the vehicle was a staff member as the access gate to the car park had been broken for a while thereby granting access to members of the public, no Sydney Buses ID was displayed, the key was not left in the ignition and no-one had responded to the page. During cross-examination, however, Mr Darcy confirmed that the boom gate was working that morning when he accessed the car park. 60Mr Darcy explained that he was keen to get home quickly to check up on, and render assistance to, his sister and her infant daughter who had been discharged from hospital a few days earlier suffering from croup. His sister did not possess a driver's licence and remained at home alone most of the day looking after the baby. 61He said he made a decision to move the other vehicle with his own car. He said he placed newspaper between both cars in order to prevent any damage to the other car. He reserved his car slowly out against the other car and saw it move slightly from its position. He then alighted from his car to check the other car for any visible damage. He removed the newspaper. When he observed that there was no damage, he replaced the newspaper and returned to his car where he resumed reversing slowly against the other car. Once again he got out of his vehicle and examined the place where contact was made with the other vehicle. He contended that he did not see any visible signs of damage to the other vehicle. He said he returned to his car and drove out of the parking spot. During cross-examination, Mr Darcy stated that he had placed at least half a dozen newspapers between both cars. When he alighted the first time, he said he saw that one newspaper had fallen and he had replaced it. He denied that the CCTV footage showed that he had removed all of the newspapers. 62Mr Darcy stated that he had not intended to cause any damage to the other vehicle. He pointed out that particulars of the alleged damage had not been provided to him, nevertheless, he was willing to compensate the owner for any damage inadvertently caused by his actions. 63Mr Darcy denied that his actions were malicious pointing out he did not intentionally and deliberately cause damage to a fellow employee's or anyone's vehicle. During cross-examination, Mr Darcy agreed that he would not have shunted the other vehicle if he was aware that the vehicle belonged to a member of staff. 64In conclusion, Mr Darcy said he left without speaking to the owner or management because he had satisfied himself that no damage had been caused by his actions. 65The transcript of the interview between the Appellant and Mr Mullen indicates that the former refused to respond to any questions put to him based on legal advice not to answer any questions save to say that he relied on the answers he provided in the letter of 20 April 2012. During cross-examination, Mr Darcy stated that the legal advice was from probably two or three of his sisters who are Solicitors. 66Mr Darcy provided a statement to the Commission which was not much different to the written response he had provided on 10 April 2012 to the investigator. 67He said he had finished his shift at 11.50 am and returned to the car park. When calls to the mechanic and the announcement, made over the PA system one or two times, failed to produce an owner, he commenced to get worried because he wanted to visit his sister on the way home to determine if she needed help with her 14-month old baby who had been ill considering she could not drive and only had a learner's licence. 68He said he decided he could not wait any longer and picked up several newspapers from the office and returned to his car. He placed the newspapers over the tow bar at the rear of his vehicle in order to avoid damaging the vehicle that was blocking him in as he planned to nudge the other vehicle out of his way and did not want to damage it. 69He recalled that he reversed his car very gently cautious to avoid any damage to the Daihatsu. He said there was not a great deal of resistance as the Daihatsu moved approximately one metre. He alighted from the vehicle to ensure that the newspapers had remained in place and to inspect both cars for damage. He returned to his vehicle and continued to reverse into the Daihatsu until he had moved it a further half a metre - just enough to allow him to exit the car park space. 70He said that in all of that time he had not seen anyone in the car park and no one had approached him. 71At about 1.15 pm on the same day, he said he received a telephone message from Mr Larossa to call him. He returned the call but was unable to make contact. 72At approximately 3.15 pm he returned to the Depot to commence a second shift. He noticed that the red Daihatsu was still in the car park but in a different spot. He entered the Depot through the back entrance and as he walked past the union office, he was stopped by the delegate, Ms Narelle Sinclair, who advised him that he had hit a car and, as a result, it cannot be moved. He explained that the car was in still in the car park and had been moved. 73Mr Darcy said that Ms Sinclair went out to the car park, returned and informed him that "I can only see a few scratches." She went to see Mr Larossa. She returned and escorted him to Mr Larossa's office . On the way to Mr Larossa's office she cautioned him to "Keep his answers as short as possible and don't volunteer any information" when responding to questions about leaving the car park. 74Mr Darcy said that he has not been charged with any criminal offence in relation to that incident. He has remained unemployed and had no other qualifications or skills other than bus driving. He explained that he had a mortgage to pay and pointed out that this is the first serious disciplinary offence he has had in 22 years of service to the STA. 75Finally, he pointed out that his Insurer had already contacted Ms Bornstein's insurer with a view to settling the claim in full.

Submissions 76The Respondent pointed out that as an employee of the STA, the Appellant was bound by its Code of Conduct. 77The Respondent contended that the Appellant's attempts to locate the owner of the vehicle were perfunctory and that he had decided to "ram" Ms Bornstein's vehicle either due to his impatience or belief in his own immediate needs. The action was taken despite a clear direction by a supervisor to not "move the vehicle himself". 78 The Respondent pointed out that the Appellant had demonstrated a defiant attitude during a preliminary interview held a few hours after the offence when he challenged "What can you do about it? It's private property". 79That attitude, it was pointed out, continued at the disciplinary interview when he declined to respond to any questions that were put to him choosing to respond with "No comment" or "On legal advice I have been told not to answer that". 80The Respondent relied on the decision in Stevenson v. Mid Western Regional Council [2009] NSWIRComm 1086 in which it was held that: Driving a motor vehicle in an irresponsible and reckless manner when connected with employment, will often establish misconduct that can justify dismissal. 81The onus of proof fell on the Respondent owing to the fact that misconduct was alleged against the Appellant (Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70) as cited in Starr Commissioner of Police [2001] NSWIRComm 226 (5 October 2001) 154). The Respondent contended that it had discharged that obligation. 82The Respondent contended that it had also discharged the onus of proving its case to the standard required in civil matters, that is, on the balance of probabilities as required in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 83It was submitted on behalf of the Appellant that the dismissal was harsh, unreasonable and unjust. It was harsh because it was not proportional to the misconduct alleged; it was unreasonable because the alleged misconduct was minor and could have been dealt with by alternative disciplinary proceedings; and unjust because the decision did not properly consider his otherwise good employment record. 84It was pointed out on behalf of the Appellant that at the time of his termination, he had only been provided with the numbers of the clauses he had allegedly breached in the Code of Conduct and had not been provided with the actual clauses. 85It was pointed out that when the Appellant moved the obstructing car, he had no idea that the owner of the vehicle was an STA employee or was Ms Bornstein. 86It was argued that the decision in Stevenson favoured the Appellant in that it is clear from that judgment that the context of the misconduct must be given considerable attention particularly when the allegation involves the driving of a motor vehicle: Driving a motor vehicle in an irresponsible and reckless manner when connected with employment, will often establish misconduct that can justify dismissal. However, the misconduct should be assessed in context to ensure that dismissal is an appropriate penalty as opposed to some lesser sanction. [emphasis added] 87It was argued on behalf of the Appellant that if the Board was against him in relation to the alleged breach of the Code of Conduct or finds that has had committed misconduct worthy of disciplinary action, then the Board ought to find that the punishment of dismissal was disproportionate to the misconduct in view of the Appellant's long service, the nature of the misconduct and the range of other disciplinary options available to the Respondent. In that regard, the Appellant relied on a Full Bench judgment in Lawler v Coal and Allied Mining Services Pty Limited [2010] FWAFB 10089 which was upheld on appeal to the Federal Court. 88The Appellant relied on the following as mitigation for his actions: firstly, his concern that he be available for his sister in case he needed to drive her and her child to hospital; secondly, cautious manner in which he moved Ms Bornstein's vehicle without endangering any other employee or member of the public; thirdly, he has not been charged for any criminal offence resulting from the incident; and fourthly, he has compensate Ms Bornstein's insurers for the full cost of the damage to her vehicle. 89The Board was advised that Mr Darcy has been living off the payment of his employment entitlements since his dismissal. In addition to his living expenses, Mr Darcy also had mortgage payments to make. 90The Board was urged to uphold Mr Darcy's appeal on the basis that it was harsh, unjust and unreasonable (Parker v Capital Painters Pty Limited (1999) 68 IR 100 at 104) and reinstate him to his former position with full back pay and continuity of service.

The Findings 91The Board was provided with an opportunity to view the CCTV footage of the incident. 92The Board accepts that the Appellant was directed by Mr Brian White, Duty Manager, not to take any action himself to move Ms Bornstein's vehicle and he chose to ignore that direction. In addition, the Appellant ignored the Mr Webster, another Bus Operator, who witnessed him ramming Ms Bornstein's car and told him that he could not do what he was doing. 93Mr Darcy, despite the direction, helped himself to newspapers from the office with the deliberate intention of taking matters into his own hands. 94Mr Darcy was indignant that Ms Bornstein had not followed the rules of the car park yet there was evidence to indicate that he has been spoken to on a number of occasions over the previous 18 months by Mr White for having breached those rules himself. 95The Board accepts that the Appellant rammed another vehicle that was locked in park gear with its handbrake on for a total of one and a half metres. 96During questioning from the Bench, the Appellant indicated that he intended to, and did leave the other vehicle in the spot where he had pushed it to. He pointed out that it was a small vehicle and, in any event, did not stick out very far into the drive path of other vehicles as it was just beyond the Ute parked in the next spot. 97Ms Bornstein attached colour photographs taken from her iphone showing the damage to her vehicle allegedly caused by the actions of the Appellant. There was no independent police report nor any report from the vehicle repairers which would confirm that the damage was indeed caused by the Appellant. Nevertheless, the damage was confirmed by management immediately after the incident and was accepted by the Appellant who said he reimbursed her insurers for the cost of repairs. 98Mr Darcy drove past Ms Bornstein claiming that he had not seen her although she was by her vehicle as he drove out. The Board does not accept that he did not see her. 99There was no evidence before the Board collaborating his excuse as to his need to go to his niece's aid. He said he "presumed" she may have needed him. 100The time lapse between when he caused the announcement to be made and when Ms Bornstein arrived to move her car did not warrant the action taken by the Appellant. 101The Appellant's failure to participate in the investigation process, even with the assistance of his union delegate, left the Respondent with no choice but to make a decision based on the facts before it. 102The disciplinary action that may be taken by the Respondent are contained in Regulation 28 (1) and may include one or more of the following punishments:

a caution or reprimand
a fine of an amount not exceeding $100
reduction in position, rank or grade and pay
suspension from duty without pay
dismissal. 103The Board acknowledges that the conduct displayed by Mr Darcy was contrary to his obligations under the Respondent's Code of Conduct. 104The Appellant's deliberate and calculated actions, despite directions to the contrary, his failure to stop and talk to the car owner, his initial response which indicated no remorse when he questioned what the STA could do about it considering it was private property, his failure to co-operate in the investigation process, his lack of remorse prior to his dismissal and the damage caused by his actions all lead to the inevitable conclusion that the penalty imposed was the appropriate remedy in the circumstances. 105On that basis, the Board cannot make a finding that the dismissal was either harsh or unjust or unreasonable.

ORDER 106The appeal of Mr Robert William Darcy against the disciplinary action of dismissal by the State Transit Authority Division of the New South Wales Government Service NSW Transport is disallowed.

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: 04 September 2012

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