Matthew McMurray v The Transport Secretary on behalf of the State Transit Authority [2020] NSWIRComm 1080

Industrial Relations Commission New South Wales Medium Neutral Citation: Matthew McMurray v The Transport Secretary on behalf of the State Transit Authority [2020] NSWIRComm 1080 Hearing dates: 20 - 21 October 2020 Date of orders: 25 November 2020 Decision date: 25 November 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Appeal dismissed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL - Bus Operator - dismissal – safety of customers - recent final warning - facts of misconduct admitted – dismissal appropriate - appeal dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) Transport Administration (Staff) Regulation 2012 Cases Cited: Dewi El Khoury and State Transit Authority Division of the New South Wales Government Service [2012] NSWTAB 28 Maritime Services Board v Murray (1993) 52 IR 455 Marroun v State Transit Authority (2017) 96 NSWLR 295 Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749 Category: Principal judgment Parties: Matthew McMurray (the appellant)

The Transport Secretary on behalf of the State Transit Authority (the respondent) Representation: Counsel: Mr M Baroni for the respondent

Solicitors: Mr J Kennedy of Hall Payne Lawyers for the appellant Ms J Willingham of the respondent File Number(s): 2020/115265 Publication restriction: Nil

Judgment 1. Before the Commission is an appeal by Mr Matthew McMurray (the appellant) pursuant to s 98 of the Industrial Relations Act 1996 (NSW) (the Act) from a decision of the Secretary of the Department of Transport as head of the Transport Service (State Transit Authority) (the respondent) to terminate his employment as a Bus Operator Level 2 on 3 April 2020. At the time of the termination of his employment, the appellant was about 48 years old and had been employed by the respondent for about six and a half (6.5) years. 2. The appellant was terminated from his employment after it was discovered that he had held a radio to his ear for 22 seconds while driving a bus in-service, with passengers on board, at approximately 1:40 am on 4 March 2020 (the incident). The conduct is admitted. 3. It is also admitted that the appellant's actions in picking up the radio constituted a breach of the Transport Code of Conduct and in particular, the following provisions: 1. Section 3 – Staff responsibilities; and 2. Section 9 – Workplace Health and Safety. 1. When the incident occurred, the appellant was on a final warning. The final warning was issued exactly four (4) months before the incident, after the appellant was issued with a penalty notice for travelling more than 20 kilometres an hour over the speed limit in one of the respondent's buses. Prior to this, the appellant had also received a warning by way of letter dated 8 June 2018 in respect of three (3) "collisions/incidents" since his last performance review and retraining, including "two (1) Responsible or Contributory Negligence collisions/incidents or passenger injuries." 2. I have decided for the reasons contained in this decision that the termination of the appellant's employment was appropriate in all of the circumstances.