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. Background 1. The appellant commenced employment with the respondent as a full-time Bus Operator in December 2013. Throughout his employment he worked out of the Ryde Depot (Depot). 2. The appellant received training in the Transport Code of Conduct at the end of his traineeship in April 2015. 3. During the period 2 March to 13 March 2020 staff from the respondent's Asset Management Division conducted a Fare Evasion Survey using State Transit Buses. As part of this operation, arrangements had been made for the CCTV footage of the bus the appellant was operating to be observed. 4. On 11 March 2020 Mr Mark O'Connor, from the Asset Management Division, was viewing the footage from the appellant's bus from 4 March 2020 when he observed the appellant holding what he thought was a phone near his ear. 5. Mr O'Connor advised Mr Michael Reardon, Executive Director Asset Management, of what he had observed in the footage and was directed by him to refer the matter to the Depot. 6. Mr O'Connor made a copy of the CCTV footage and sent it to the Depot Manager, Mr Domenic Larosa, on or around 12 March 2020. 7. On 16 March 2020 Ms Melissa Eames, then Acting Depot Manager, received the CCTV footage from Mr O'Connor. 8. On 17 March 2020 Ms Eames viewed the CCTV footage and identified the appellant as being the driver of the bus. 9. From the footage, Ms Eames observed that the appellant had held a radio to his ear while operating a bus in-service. 10. On 17 March 2020 at approximately 5pm, the appellant attended the depot and was shown a copy of the CCTV footage. 11. On the same day, the appellant was suspended from duty without pay pending the outcome of a disciplinary investigation. 12. On 19 March 2020 the appellant was issued with a "Form E1" that set out the allegations against him. 13. The Form E1 stated the following under the heading "DETAILS AS FOLLOWS": "Allegation 1 On Wednesday 4 March 2020 you breached Sections 3 and 9 of the Transport Code of Conduct when you handled a electronic device whilst operating a State Transit vehicle. Particulars of Allegation: On Wednesday 4 March 2020 you were rostered shift D019, Run Y109, Route 550, scheduled to depart Parramatta Stand A at 1:30am. At approximately 1:40am whilst operating Bus 3058ST in-service with passengers, you were observed handling a personal electronic device whilst the bus was in motion. You failed to maintain full and proper control of the vehicle. Your actions were unsafe and in breach of State Transit policy and procedure." 1. On or around 19 March 2020, Ms Kate Moore was appointed as the Investigating Officer for the disciplinary investigation. 2. On 24 March 2020 the appellant submitted his response to the allegations set out in the Form E1 as follows: "Dear Melissa, I have been operating on high alert in the preceding 6 months prior to this event, as my 2 year old son in November of last year had to have major corrective heart surgery to enable him to survive. I have been operating under duress since the end of January this year when the coronavirus (COVID-19) news started to appear. as my family , my 1 year old and 2 year old sons and my pregnant partner return to her country (LAOS) at the end of January for family reasons and I was to return with them within my 5 week leave period , but alas my flight was cancelled and both our countries are in lockdown for the foreseeable future . This and the allegations has raised anxiety issues for me and my family. Coronavirus or any related issues has me extremely nervous hence leading me to my stupid mistake of picking up my handheld radio . In response to the allegation brought against me . I am deeply remorseful and deeply embarrassed by what my actions have been viewed as towards my colleagues and family , and in no way was there any intent with my action towards my employer and work colleagues . It was a stupid mistake. I am deeply loyal and honest by nature and am a very proud employee of State Transit for the past 6 years and was unaware that my action could cause me to be stood down . I deeply regret my actions . I personally feel as a professional driver that my action can be viewed in a bad light and it was the wrong thing to do but I never felt in any way unsafe or that I wasn't in full control of the vehicle, but have now come to the conclusion ,upon reflection it is unsafe , and as part of this process I would like to request driver retraining and will remove my personal radio out of service as this is a major distraction for me at this time . I usually use my radio as a drivers aid in analogue mode to conserve battery , to closely monitor roads at night due to road closures and roadworks . Thank you for giving me the opportunity to explain the circumstances surrounding my actions and the reasons for my actions and wait a fair and reasonable outcome." 1. On 27 March 2020, Ms Moore conducted a disciplinary interview with the appellant. 2. Mr Moore finalised her investigation and found that the allegation against the appellant was proven. 3. On 31 March 2020, Mr Larosa, the Reviewing Officer met with the appellant and invited him to make submissions regarding an appropriate punishment. 4. The disciplinary actions that were available to Mr Larosa as the Reviewing Officer are set out in clause 29 of the Transport Administration (Staff) Regulation 2012 (TAS Regulations). 5. Mr Larosa determined that the appropriate punishment would be dismissal. 6. The appellant was issued with a Notice of Punishment on 3 April 2020, terminating his employment. The incident 1. In evidence was a copy of the CCTV footage of the incident. It shows that at about 1:40 am the appellant reaches behind him to grab a radio which he then holds to his right ear. The appellant is then depicted controlling the vehicle one-handed, with his left hand rested at the bottom of the steering wheel, with the radio placed against his ear in his right hand for a period of 22 seconds. 2. During this time the bus is in motion and travelling at an average speed of between 38 and 41 kilometres per hour. During the hearing, four (4) passengers could be seen in the bus on the CCTV footage. One passenger was standing opposite the rear door not holding onto any part of the bus in preparation to alight at the next designated stop. The respondent's evidence and submissions 1. The respondent relied upon the following witness evidence in respect of the proceedings: 1. Statements of Ms Kate Moore, Depot Supervisor, dated 27 May 2020 (Ex R1) and 16 July 2020 (Ex R2). Ms Moore was the Investigating Officer in respect of the incident leading to the termination of the appellant's employment. 2. Statements of Ms Melissa Eames, Senior Customer Operations Manager, dated 25 May 2020 (Ex R3) and 27 July 2020 (Ex R4). Ms Eames was the Acting Depot Director at Ryde from 17 to 24 March 2020. Ms Eames informed the appellant of the original allegations, suspended his employment, issued him with the E1 Form setting out the allegations against him and received the appellant's written response. 3. Statement of Mr Mark O'Connor, Asset Security Coordinator, dated 27 May 2020 (Ex R5). Mr O'Connor was the officer who referred the CCTV footage of the incident to the Depot. 4. Statement of Mr Domenic Larosa, Depot Director, Ryde, dated 27 May 2020 (Ex R6) and 16 July 2020 (Ex R7). Mr Laroso was the Reviewing Officer and ultimately the decision maker to terminate the appellant's employment. 1. All of the respondent's witnesses were cross-examined by the appellant, except for Mr O'Connor. The respondent relied upon both written and oral submissions. The appellant's evidence and submissions 1. The appellant relied upon the following witness evidence: 1. Statement of Mr Bruce Eddy, Bus Operator; Rail, Tram and Bus Union of NSW member; and Tram and Bus Divisional Delegate for Randwick Depot dated 2 July 2020 (Ex A1). 2. Statement of Mr Matthew McMurray, the appellant, dated 10 July 2020 (Ex A2). 1. Both the appellant and Mr Eddy were cross-examined by the respondent in the proceedings. 2. The appellant relied upon both written and oral submissions. Applicable law and principles 1. The appellant's employment was terminated pursuant to Regulation 30 of the TAS Regulation, which is in the following terms: 30 Disciplinary proceedings (1) A member of the Transport Service who is subject to any disciplinary proceedings is entitled to be notified in writing by the Transport Secretary of the particulars of the alleged behaviour giving rise to the proceedings. (2) A formal hearing is not required to be held before the person or body investigating or dealing with the alleged behaviour, but the member of the Transport Service who is the subject of the proceedings may make representations to that person or body. (3) The Transport Secretary may determine any disciplinary proceedings that have been instituted against a member of the Transport Service by: (a) taking disciplinary action with respect to the member, or (b) taking remedial action with respect to the member, or (c) taking no further action. 1. Regulation 29 provides for the following definitions relevant to Regulation 30: disciplinary action, in relation to a member of the Transport Service, means any one or more of the following: (a) dismissal, (b) deferral of the payment of an increment, (c) reduction of the member's salary or demotion to a lower position or grade, (d) suspension from duty without payment of salary, (e) a caution or reprimand, (f) a fine of an amount not exceeding $100. remedial action, in relation to a member of the Transport Service, means any one or more of the following: (a) counselling, (b) training and development, (c) monitoring the member's conduct or performance, (d) implementing a performance improvement plan, (e) the issuing of a warning to the member that certain conduct is unacceptable or that the member's performance is not satisfactory, (f) transferring the member to another position in the Transport Service that does not involve a reduction of salary or demotion to a lower position, (g) any other action of a similar nature. 1. The Commission's powers in a disciplinary appeal of this kind are contained in Ch 2 Pt 7 of the Act, which relevantly provides as follows: 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. … 100C Decisions with respect to appeals … (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 1. In public sector disciplinary matters, the Commission is required to conduct a fresh hearing of the evidence to determine the facts based on the evidence. That is to say, I am not to simply conduct a review of the decision to terminate the appellant's employment. Rather, as set out in the decision of Marroun v State Transit Authority (2017) 96 NSWLR 295 at [35]: "In colloquial terms, an appeal by way of fresh hearing means that the appellant body "stands in the shoes" of the original decision-maker. Where there is, as here, a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed. Generally, it is assumed that the appellant body has the same powers as the original decision-maker, no more want and no fewer. One basis for the inference is a use of the term "appeal" to describe what is in substance a fresh hearing." 1. In this matter, the conduct alleged is admitted by the appellant, however the seriousness of the conduct is in dispute. The Commission's task in these proceedings, is to determine how that conduct should be characterised and whether, in the Commission's view, the punishment of the termination of the appellant's employment is appropriate, taking into account all of the relevant circumstances of the case. 2. I further note that Marroun confirmed the proposition that post-decision events or conduct may be relevant to the consideration of penalty. Accordingly, if the Commission allows the appeal the Commission may consider post–decision events or conduct in determining whether some other form of disciplinary action is appropriate: see Maritime Services Board v Murray (1993) 52 IR 455. 3. In exercising its jurisdiction in public sector disciplinary decisions, the Commission is exercising a protective function: see Marroun at [21] and Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 at [173]. Consideration 1. As set out above, the incident itself is not in contest. The parties agree upon what happened as set out above at [27]-[28]. However, the appellant and respondent have different views about the seriousness of the incident. 2. During the hearing of the matter, the appellant conceded that each of the particulars contained in the E1 Form set out above at [18] had been made out. Notably, in final submissions, the appellant conceded that the appellant "failed to maintain full and proper control of the vehicle" and his "actions were unsafe and in breach of State Transit policy and procedure." 3. The appellant provided his account of the incident at [21]-[29] of Ex A2: "On the night of the incident, 4 March 2020, I was rostered to shift DO19 driving Route 550. I have driven this route hundreds of times and I know the roads and I was driving to the conditions. I honestly didn't remember anything special about my shift on 4 March 2020 when Melissa Eames or Kate Moore (the investigating officer) asked me. When I was shown the CCTV footage it was clearly a very quiet night on the roads with hardly any traffic or passengers because of the corona virus situation. Obviously, I was listening to my digital/analogue radio as I usually do. I tend to listen to talk-back radio because they also give regular traffic updates and people phone in with comments if anything is happening on the roads. On this particular night I can't remember exactly what I was listening to. I do know that all I could think about at that time was my family in Laos because of the virus and the impact across the world. I was really nervous about being able to get out of Australia and spend time with the children and my partner in Laos as I had planned. We didn't know we were pregnant until my partner told me from Laos at the end of February. I was due to start annual leave and fly out on 23 March and return with them in April after 5 weeks' leave. As all the news reports kept changing and nobody really seemed to know what was happening with the corona virus, I do know I was on "high alert" for any mention of the virus and spent time listening to the radio to see if I could pick up any news about what was going on. I was getting very nervous as some countries were already talking about shutting their borders. I really can't remember what I was listening to as the radio was playing at fairly low volume behind me and I was concentrating on driving. I can't remember exactly what made me pick up the radio to listen more closely but when I was forced to think about it later due to the investigation, I remembered I thought they were saying something about the Coronavirus. Because of my circumstances, any mention of the virus was really important to me as I needed to know that I was going to be able to take my leave and travel to Laos to be with my family and pregnant partner. On the CCTV footage I can see that the road is pretty empty and I only have about four passengers. From watching the footage, I can see that when I think I hear something which may be an update about the virus, I pick up the radio and hold it to my ear for 22 seconds, and then I reach back and put it down. I keep my eyes on the road the whole time and stay in the middle of my lane driving to the conditions, at about 38kms an hour. One of the passengers is standing and leaning on a post while he is playing with his mobile phone. He isn't holding on to anything other than the phone but throughout he doesn't have to lurch or sway or grab onto anything because I remain driving smoothly at a constant and safe speed with my eyes on the road. I finished my shift without incident and thought no more about it until 17 March 2020 when I had a meeting with Melissa Eames. At the meeting she handed me a notice of suspension without pay. Three hours after the meeting the airline cancelled my flight due to corona virus. Laos had shut its borders and so did Australia. My family have been stranded in Laos since that time.. I missed Jet's third birthday which was in March and our baby is due in September and we don't know if I will be able to get to them for the birth. I talk to them on Skype several times a day but it isn't the same as being with them. I also now don't have any income because I have lost my job. I worry about what will happen in the future." 1. Although the appellant was experiencing dislocation from his family at the time of the incident with uncertainty about the future in view of the coronavirus pandemic, this does not excuse his conduct in picking up the radio to, on his account, maybe, listen to any news whilst he was driving a bus in-service. 2. Although I accept the appellant's evidence that the conditions were quiet and he was maintaining a constant speed during the incident, he was driving the vehicle with one hand and this compromised the safety of himself, the passengers and others using the road. The fact that a situation did not arise to test whether the appellant's capacity to operate the bus was diminished by his actions does not detract from this. I also find that the action had the potential to impact negatively upon the reputation of the respondent. As the appellant said in his own evidence, "It was a bad look for sure." 3. Given the nature of the respondent's functions and its responsibility to the public to provide services that are safe, I consider the action taken by the appellant was serious enough to warrant disciplinary action and consideration to be given to the imposition of a punishment. 4. For completeness, I find that the particulars of the E1 Form have been made out and that the appellant failed to maintain full and proper control of the vehicle by his actions and that this was unsafe and in breach of State Transit policy and procedure. In doing so, I note and accept the appellant's submission that there are varying degrees of unsafeness or failing to maintain full and proper control of a vehicle. I also find that whilst this was a serious safety breach, it is not at the worst end of the spectrum. 5. There was some debate in the hearing about whether the policy titled, State Transit Authority's Mobile Phone and Devices Policy When Driving Buses (Including other driving distractions) (the Mobile Phone and Devices Policy) had been breached by the appellant and or whether the respondent had done enough to ensure that the appellant knew of that policy and its applicability to the use of personal radios. The appellant submitted that the respondent was applying a "zero tolerance" approach to his conduct in circumstances where it had not been made clear enough to the appellant that his behaviour would result in his dismissal. 6. While I agree that there is some ambiguity over the applicability of the Mobile Phone and Devices Policy to the use of personal radios, the appellant had responsibility to drive safely and have full and proper control of the vehicle. These are matters provided for in the Transport Code of Conduct which the appellant said he was aware of. In particular, section 3 of the Transport Code of Conduct relevantly provides: "You are responsible for familiarising yourself with agency policies and procedures, and complying with them." "You need to be aware that the reputation of the transport agencies can be affected by your actions at work ….." "You must: - treat our customers and colleagues fairly, consistently and with respect; - behaviour in a lawful, professional and reasonable manner and always act in the best interests of Transport; - comply with agency policies and procedures,…….. - understand the duties, responsibilities and accountabilities of your role and perform these safely, honestly, courteously and fairly; - make impartial decisions that demonstrate your agency's values and promotes confidence in the integrity of public administration." 1. The appellant's actions were unsafe and not in the best interests of the respondent. 2. Section 9 of the Transport Code of Conduct relevantly provides: "We prioritise safety, and are committed to providing a safe workplace and safe culture for our staff, customer, suppliers and visitors……… You should consider safety in everything you do. We all play a part in making sure that, as far as reasonably practicable, our work environment is safe and free from hazards. This includes ensuring our customers experience safe, clean and reliable passenger services……. As a staff member, you are required to: - Take reasonable care of your own health and safety; - Take reasonable care that your acts or omissions do not adversely affect the health and safety of other persons; - Comply, so far as reasonably able, with any reasonable safety instruction; and - Co-operate with any reasonable agency policy or procedure relating to health or safety at the workplace that has been notified to you." 1. It follows from the findings in respect of the incident at [45] above that the appellant also breached section 9 of the Transport Code of Conduct and that is enough. It is not the case that the respondent needs to spell out every act which may compromise the safety standards of its operations in a specific policy for compliance with the Transport Code of Conduct to be required. It is a fundamental and implicit aspect of the role of Bus Operator that the functions are undertaken in a safe manner and in a way that represents the respondent appropriately to the public. I reject any argument that the appellant's responsibilities are diminished by ambiguity in the Mobile Phone and Devices Policy or because of a lack of specific training on that policy or the issue at hand. 2. I have considered the appellant's argument that the he was denied procedural fairness by a "zero tolerance" approach by the respondent below. 3. In determining the appropriateness of the punishment in respect of the incident, the Commission must consider all of the relevant circumstances. In this matter, this includes, the nature and seriousness of the conduct involved in the incident itself as set out above, the circumstances surrounding the conduct including the appellant's explanation for it, the level of remorse and or contrition demonstrated by the appellant, the appellant's employment record and history, his personal circumstances and the impact any punishment will have upon him. 4. During the investigation process and throughout the proceedings, the appellant expressed remorse and contrition with respect to the incident. For example, during his interview with Ms Moore he stated: "I'd just like to make everyone aware that I'm sincerely sorry and deeply regret my actions. I vow not to do this sort of thing again. And just drive safely with the company and employees and passengers at the forefront of my driving." 1. The appellant expressed similar sentiments in his written reply to the allegations and in his evidence in the proceedings before the Commission. 2. However, the appellant's evidence with respect to whether he believed his actions created a safety risk were inconsistent. For example, during the interview with Ms Moore, the appellant stated the following in answer to a question whether he agreed that his actions were unsafe: "Personally I don't think it was unsafe at the time. And I never once felt uncomfortable. On reflection of doing the movement because I honestly can't even remember picking up the radio. And yes I can understand that can be viewed a little bit unsafe. But yeah. You probably could view it as anything if someone wanted to." 1. Further, in his written reply to the allegations contained in the E1 Form, as set out above at [20], he stated: "I personally feel as a professional driver that my action can be viewed in a bad light and it was the wrong thing to do but I never felt in any way unsafe or that I wasn't in full control of the vehicle, but have now come to the conclusion ,upon reflection it is unsafe , and as part of this process I would like to request driver retraining and will remove my personal radio out of service as this is a major distraction for me at this time ." 1. Before the Commission, the appellant gave the following evidence while being cross-examined with respect to the effect of him picking up the radio and driving the bus with one hand (Tcpt, 20 October 2020, p 86 (15) – p 87 (21)): "Q. You don't accept the proposition that I put to you earlier, that you didn't have proper control of the vehicle? A. No, I think I had proper control of the vehicle. I was in control of the vehicle. Q. Proper control? A. Well, maybe if you're looking at it - depends on how you're looking at it, I suppose, but no, I don't think so. It doesn't look good, I admit that. Q. It's not a question of it looking good? A. No, I know. Q. It's much more serious? A. I know it's much more serious. Q. It's not a question of it looking good, Mr McMurray. It's a question of the seriousness of your conduct? A. Yes. Q. It's not whether it looks good or not? A. Yes. Q. Do you accept that? A. Yes. Q. What I'm putting to you is that if an incident had occurred, the risk of an accident happening would have been heightened because you didn't have two hands on the steering wheel and you were distracted? A. I don't agree with that. Q. You don't agree with that? A. No. Q. So if a car had swerved in front of you accidentally-- A. I would've braked. Q. --you would have-- A. I would have braked. Q. --your evidence is - just let me finish before you answer the question? A. Sorry. Q. And this is to help you? A. Sorry, yes. Q. So your evidence is that had, for example - and I know this is hypothetical - had a car swerved in front of you, you would have been able to deal with that incident in exactly the same way had you had two hands on the steering wheel and weren't distracted by the radio? A. I believe so, yes. Q. That's your evidence, is it? A. Yes." 1. Further the appellant gave the following evidence with respect to a conversation he had at a meeting held with Mr (Domenic) Larosa on 31 March 2020 at [54] of Ex A2: "We had a heated conversation during the meeting. Domenic asked me whether I would be in a good position to make an emergency stop and I stupidly replied that I had "good reflexes". This was just a reaction in that moment that I now regret saying." 1. Having considered all of the evidence, I have concluded that while the appellant is genuinely remorseful for what he did and understood it was not a "good look", he does not believe that he compromised the safety standards of the respondent during the course of the incident. This is concerning and demonstrates a lack of insight into his obligations as a professional bus driver. Without insight into how his actions might have impacted upon his capacity to deal with an unexpected change in driving conditions, I am unable to conclude that he would refrain from other behaviour that might compromise safety standards in the future. 2. The appellant had been employed by the respondent for about six and a half (6.5) years when his employment was terminated. 3. As set out above at [4], the appellant had received two previous warnings with respect to his employment prior to the incident as follows: 1. The appellant 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" (the First Warning). 2. A Final Warning was issued on 4 November 2020, 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 (the Final Warning). 1. In respect of his employment record, the appellant gave the following evidence at [55]-[60] of Ex A2: "During my 6 years with STA I can recall a number of occasions where I had some discussions about performance and collisions and had some re-training after which I was always deemed as a competent driver. This was mostly in the first few years when I was a trainee and a fledgling bus driver. Other than this, the only other serious matter on my record is the Traffic Infringement for speeding for which I received a fine, lost 3 demerit points and got a final warning in December 2019. See attachment of respondent's submission Statement of Kate Moore marked KM11. In a year I would average between 1700 – 2000 hours driving in a Bus. Over 6 years as an STA employee and a Bus Operator I have probably driven, at a reasonable estimate, nearly 11,000 hours. Both as an employee and a Bus Operator I have only had 2 instances that Management has deemed serious enough for an E1 (letter of allegations to be answered) – one for the traffic infringement in September 2019; and now for picking up a radio whilst driving. The Traffic Infringement on 21 September 2019 occurred because I was thinking of my son. I put this in my response to the E1 at the time. Attached and marked MM6. I was concerned about Jet's surgery in mid-November and worried about whether he would survive or not. I remember it to this day. I was nonetheless immediately remorseful and deeply regretted my actions. I broke the law and was consequently fined by the police. I recall that during the investigation process there was a request that I attend the office to discuss the matter. I was working on night shift at the time and my times didn't line up with the times management were available. It just didn't line up with my family time as well. For that reason there was no meeting to discuss but I did respond to the issue in full in my written response." 1. In actual fact, the appellant had received a formal warning in respect of his collision history in mid-2018. It was not issued at the beginning of his career, but four and a half (4.5) years into his six and a half (6.5) year career with the respondent, albeit almost two (2) years before the incident. 2. With respect to the appellant's explanation for the speeding infringement leading to the Final Warning, he gave evidence that his son had been diagnosed with a major heart condition that required corrective surgery which took place during a hospital admission commencing on 21 November 2019. I accept that the appellant was very stressed during this period of time and concerned for his son's welfare and this impacted upon his capacity to concentrate when he was caught speeding. I also accept the appellant's evidence that the conduct was not deliberate. 3. Objectively, travelling more than 20 kilometres an hour than the designated speed limit on a pubic road is a serious driving offence, even if it is not deliberate. I am unable to find that the seriousness of this conduct was lessened by the fact that the speeding took place in a zone where there were variable speed limits for cars and larger vehicles. 4. It goes without saying that even during periods of extreme personal stress, there is an obligation on road users to obey the road rules for their safety and that of the general public. This is especially the case when the vehicle being driven is a bus. This is a reasonable expectation of an employer of a professional driver. It was appropriate that the Final Warning was issued, even though it was put that the appellant drives between 1,700 and 2,000 hours a year. 5. I find that the First Warning and Final Warning are relevant to the Commission's consideration of the appropriate penalty to impose. Both warnings related to the appellant driving the respondent's vehicles in an unsafe manner and the Final Warning was issued just a few months before the incident. 6. I have also taken into account and accept the evidence of Ms Moore that she had a positive working relationship with the appellant and that she regarded him as a good employee. There was also relevant evidence of the appellant receiving commendations in 2014 and 2017 for excellent customer service. 7. I agree with the appellant's submission that the decision to dismiss him is most serious and will be life changing for him and it will not only impact on him, but also his young family. We are in the middle of a global pandemic and this has had a significant economic impact in the State of New South Wales. The appellant has completed an apprenticeship as a maintenance engineer, although it is accepted that he will face challenges finding alternative employment in the current climate. At the time he signed his statement the appellant had two children aged three (3) and one (1) and his partner was pregnant with their third child. 8. In late January 2020, the appellant's partner and children travelled to Laos for a holiday to see family. The appellant had intended to join them for a period of five weeks commencing in March and returning at the end of April 2020. However, the appellant has not joined his family and gave evidence that, "While my family was in Laos and I was still here working and waiting to join them, the whole COVID-19 situation took off in February 2020 causing further turmoil and distress or me and my family..": Ex A2 at [19]. 9. The appellant referred the Commission to the matter of Dewi El Khoury and State Transit Authority Division of the New South Wales Government Service [2012] NSWTAB 28. In that matter, Tabba C decided to give the appellant, a bus driver, a second chance, after she was found to have used her mobile phone whilst stationary at a traffic light. The appellant also referred to the decision in McAuliffe v The Transport Secretary on behalf of the State Transit Authority [2020] NSWIRComm 1017 where the Commission as currently constituted reinstated a bus driver who used a mobile phone in similar circumstances as the driver in El Khoury. 10. It is difficult to compare such cases give the plethora of factors that may be relevant to the Commission's determination of an appropriate penalty. Ultimately it is a careful consideration of the particular facts and circumstances of the case that will be determinative of the proper outcome. In that regard, I note that in both cases referred to by the appellant, the drivers were not on a Final Warning when the relevant incidents occurred. Indeed, in both cases, there was no evidence of the respondent having previously taken disciplinary action against the drivers. In McAuliffe, the appellant was described as having a good driving record: at [22] and [76]. These decisions were determined on a different factual basis to the matter at hand and do not assist the appellant's case for reinstatement. 11. It was argued that the appellant was denied procedural fairness during the process in that the decision to terminate his employment was effectively pre-determined or that the respondent had erroneously taken a "zero tolerance" approach to the conduct. Although there was some evidence to support this proposition, this was denied by the respondent's witnesses. Even if there were a "zero tolerance" approach taken by the respondent, I am not persuaded that it would have made a difference had this not been the case. In any event, the appellant was given an opportunity to put all relevant matters to the Commission through this appeal and these have been duly considered. The Commission is not obliged to uphold an appeal because there has been a denial of procedural fairness in the process leading to the termination: s 100C (3). 12. Having considered all of the circumstances of this matter, I find that it is appropriate that the appellant's employment is terminated. The incident itself constituted misconduct in that it was contrary to the Transport Code of Conduct, in that it could have caused reputation damage to the respondent and moreover, compromised the respondent's safety standards. Although the incident could not be viewed as being at the worst end of the spectrum of employee misconduct, the circumstances of this case are such that termination is none the less warranted. 13. In particular, I note that the appellant should have been on high alert that his employment would be terminated if he was found driving the respondent's bus unsafely after he was issued with the Final Warning. The appellant's evidence demonstrates that although he was remorseful for the incident, he lacked insight into how it created a safety risk. In these circumstances, and considering the protective function of the Commission in exercising its function in these proceedings, the safety of road users must take precedence over the personal circumstances of the appellant. Accordingly, I have decided that the appropriate punishment for the appellant's conduct is dismissal. 14. For these reasons, I dismiss the appeal. Order 1. I order that the appeal be dismissed. Janine Webster 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: 25 November 2020