Elmer Lardizabal v State Transit Authority of New South Wales [2010] NSWIRComm 1052

Industrial Relations Commission of New South Wales

CITATION: Elmer Lardizabal v State Transit Authority of New South Wales [2010] NSWIRComm 1052

APPLICANT Elmer Lardizabal PARTIES: RESPONDENT State Transit Authority of New South Wales

FILE NUMBER(S): 281 of 2010

CORAM: Macdonald C

CATCHWORDS: Unfair dismissal - Applicant employed as bus driver for State Transit Authority - altercation between Applicant and passenger on bus driven by Applicant - investigation - Applicant charged with breaches of Code of Conduct - use of physical force by Applicant - misconduct found - dismissed - hearing - reinstatement sought - viewing of CCTV footage during hearing - HELD: Application dismissed .

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Corkery v MF Galliano Pty Limited (unreported, Connor C, IRC 2987 of 2002, 6 December, 2002)

HEARING DATES: 02/09/10

DATE OF JUDGMENT: 1 October 2010

APPLICANT Mr R Baonza Union Official LEGAL REPRESENTATIVES: RESPONDENT Mr S McLean Employee Relations Advisor

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MACDONALD C

1 October, 2010

Matter No IRC 281 of 2010

Elmer Lardizabal and State Transit Authority of New South Wales

Application by Elmer Lardizabal re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2010] NSWIRComm 1052

1 This is an application by Elmer Lardizabal ("the applicant") for unfair dismissal against State Transit Authority of New South Wales ("the respondent"), pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The unfair dismissal application was filed on 19 April, 2010 in the New South Wales Industrial Registry. The Employers Reply was filed on 30 April, 2010. 3 The matter was set down for conciliation but was unsuccessful and the matter was programmed for a Hearing. 4 At the hearing, held on 2 September, 2010, the applicant was represented by Mr Raul Baonza, Union Official of Rail, Tram and Bus Union, Bus and Tram Division (the Union). Mr Baonza called the applicant as a witness. 5 The respondent was represented by Mr Stuart McLean, Employee Relations Advisor. Mr Stuart called the following witnesses: Frank Eccles - Manager, Radio Room Mariano Moscabenny - Staff Manager, Kingsgrove Bus Depot Dimitrios Niahos - Depot Manager, Kingsgrove Bus Depot BACKGROUND 6 The applicant was employed as a bus driver by the respondent in March, 2002. He drove buses out of the Kingsgrove depot at the time of the incident that led to his dismissal. 7 The incident for which he was dismissed took place on 23 February, 2010. On that date, he was driving a bus and he stopped at a bus stop located on the corner of King Street and Missenden Road, Newtown. He allowed passengers to exit and then drove off. 8 Shortly thereafter he heard a commotion. A female passenger walked toward the front of the bus and he said, she abused him. An altercation took place between the passenger and himself. 9 The altercation was captured on security footage taken from the bus. 10 The applicant called in for assistance. 11 The security footage was reviewed and the applicant charged for misconduct. He was dismissed for misconduct.