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. FINAL SUBMISSIONS For the Applicant 12 Mr R Baonza, for the applicant, put the following in final submissions: (a) the applicant had not initiated the incident. (b) the female passenger initiated the incident by hitting the applicant with her bag. (c) it was a human reaction on the part of the applicant to react to being hit. This is why he grabbed her and to ascertain why she did so. (d) he opened the front door to allow her exit but this passenger (and/or another) threw things at the applicant from outside the bus. (e) the applicant felt threatened . (f) staff training was inadequate to deal with this situation. (g) the decision to dismiss the applicant was excessive and reinstatement with consequent orders of lost remuneration and continuity of employment were sought. For the Respondent 13 Mr S McLean, for the respondent, put the following in final submissions: (a) the applicant's actions during the altercation, did not reflect a fear for his safety. (b) it was disputed that the applicant had been hit by the female passenger's bag. No injury was found on his person. He did not seek medical assistance. (c) the applicant claimed he was defending himself but his actions went beyond self defence. The applicant became an aggressor. (d) his actions went beyond the training in self defence he received. (e) the applicant's prior incident with another passenger was relied upon to support the dismissal. (f) the applicant's employment record was questionable. (g) reinstatement was opposed. CONSIDERATION 14 The applicant seeks reinstatement on the basis that his dismissal was unfair. 15 His dismissal arose out of an incident that took place on his bus on 24 February, 2010. The incident involved the applicant and a female (in the main) and male passenger. The incident was captured on Closed Circuit Television Video ("CCTV"). 16 At the conclusion of the incident, the applicant contacted the Radio Room from his bus and sought assistance. He said he had been attacked by a passenger. The transcript of that conversation was provided by Mr Eccles, Manager of the Radio Room. (Ex 3, Annex 3) 17 The applicant was suspended from duty, with pay, on that same day after the CCTV footage had been viewed by Mr Moscabenny, Staff Manager of Kingsgrove Bus Depot and by Mr Yates, Acting Depot Manager of Kingsgrove Bus Depot. 18 On 2 March, 2010, the applicant was issued with a Form E1 that set out the allegations against him (Ex 4, Annex 8) and specified the alleged breaches of the State Transit Code of Conduct (Ex 4, Annex 9). 19 The charge against the applicant was that he had acted in a manner that brought the respondent into disrepute. 20 The particulars of the charge are listed below: " · You failed to demonstrate appropriate and professional conduct towards a female passenger at the corner of Missenden Rd and King St Newtown at approx 08:55am. · You displayed undue and excessive physical force towards the same female passenger when there were no further signs of aggravated threats towards you. · You failed to open front doors of Omnibus MO3695 immediately to allow the female passenger to alight from bus after the initial altercation between yourself and the female passenger. · You physically grabbed the right hand of a male passenger who was approaching to the aid of the female passenger. · You failed to maintain an appropriate professional standard of behaviour in the presence of the public." 21 The applicant submitted a written response to the allegations on 8 March, 2010. 22 The applicant attended a disciplinary interview with his union representative at Kingsgrove Bus Depot on 17 March, 2010. 23 The Union made representations on behalf of the applicant and the respondent provided information regarding the incident on 31 March, 2010. 24 Mr Moscabenny, the investigating officer for the disciplinary proceedings against the applicant, prepared a disciplinary inquiry report, dated 14 April, 2010 and provided that report to Mr Niahos, Depot Manager - Kingsgrove. His report found the charges proven. (Ex 4, Annex 14) 25 Mr Niahos, in his capacity as Acting General Manager approved the dismissal of the applicant by the issuing of a Notice of Punishment. (Ex 4, Annex 15) The CCTV Footage 26 The dismissal of the applicant arose out of the altercation between himself and a female passenger (in the main) and a male passenger. That altercation was recorded on CCTV footage taken from on board the bus. The footage, per se, has no audio recording. But there is a facility on board the bus by which audio can be recorded but this was not activated by the applicant. 27 The Commission had the benefit of viewing the CCTV footage during proceedings. 28 Mr Moscabenny's witness statement provided a "Record of Events as Evidenced by the CCTV System on Bus No. MO 3695 on 24/02/2010." This document is a timeline of events of the incident, showing the interaction amongst the relevant persons. (Ex 4, Annex 13) The accuracy of this record of events was not challenged. It was only amended in respect of two entries and in of itself, those amendments are of no relevance. 29 The Record of Events/CCTV footage clearly show that the aggressor for the start of the incident was not the applicant. The aggressor was the female passenger. In what appears to be "out of the blue", the female passenger comes down the aisle towards the applicant and swings a plastic bag, held in her right hand, towards the driver's (applicant's) head. Although the respondent was of the view that the bag did not appear to come into direct contact with he head, there may still have been a contact - if only of a grazing kind along the near side (left side) of his head. (The time entry for this description is 8:58:37/8:58:40) 30 The female passenger then walked a couple of steps towards the front door and the bus stopped by the kerb of the road. 31 The applicant then reached over to the female passenger (whose back faces the driver), placed his left hand on her right shoulder and grabbed hold of her shirt and pulled her back towards the cabin. (8:58:41) 32 The applicant's explanation for this conduct on his part was that he was angry and shocked as to why the passenger whacked him in the face. So he "reached her shoulder to get her attention to ask(ed) why she had hit me". (Ex 1, para 9) This extract from his witness statement only shows his conduct as seemingly nothing more than reaching her shoulder but the CCTV footage shows that he pulled her back towards the driver's cabin by grabbing her on the shirt. 33 The Commission is of the view that this was not an act of tapping the passenger on the shoulder to get a hold of her attention and ask why did she strike him. This was an act of physical force being applied to the passenger. It may have been an instinctive reaction of anger by the applicant and if nothing further came of his action, then maybe his employment status may have been different. However, the female passenger reacted to the applicant's conduct and the incident escalated. 34 The female passenger appears to attempt to strike the driver with the plastic bag (the content of which is unknown). The applicant raised his left arm and hand to stop her…(8:58:42) This conduct by the applicant can be described as self defence. But it is what happens next that shows another act of aggression by the applicant. 35 The applicant raised his left arm and placed the palm of his left hand onto the passenger's face and push her back towards the front door, which are still closed. Her head tilts back. She attempts to strike the driver with the plastic bag, but he moves back in his chair towards the driver's window. The passenger turns towards the closed door. (8:58.44) 36 The applicant at this point does not cease and desist. Instead he raises his left arm and appears to attempt to grab the passenger's arm. He appears to touch the upper arm of the passenger. (8:58:45) 37 The passenger turns towards the driver and both appear to exchange words. (8:58:46 - 8:56:49) 38 The applicant opened the front doors of the bus and leaned forward from his chair, with his left arm outstretched, and pushed the passenger on the upper part of her right arm towards the opening front doors. (8:58:49) 39 The passenger takes a newspaper that was tucked under her left arm and throws it in the direction of the driver….(8:58:50) 40 The applicant moves across towards the passenger and with his left arm outstretched, grabs the passenger's scarf that is wrapped around her neck and takes it off her. (8:58:51) 41 A couple of other entries of interaction take place. 42 An unidentified male walks towards the front of the bus. The female passenger looks away from the applicant and towards the male passenger. (8:58:53) 43 Whilst she is looking towards the approaching male passenger, the applicant leans towards her, with his left arm outstretched, and strikes the female passenger in her face with his open hand. The female passenger stumbles backwards towards the open front doors. (8:58:54) 44 The applicant grabs the male passenger's right wrist briefly and also raises his right arm with hand clenched in a fist. (8:58:55) 45 There are many other entries in the Record of Events as to further interaction amongst the applicant, the female passenger and the male passenger, but none of these entries go to physical contact. 46 The applicant put forward in his witness statement certain defences for his conduct. He believed he was acting legally and within the respondent's guidelines to protect himself. He believed that his actions were reasonable and appropriate under the stressful circumstances. 47 Under cross-examination, the applicant was questioned about the respondent's code of conduct - the training workshop he had attended on how to deal with aggressive passengers - and his conduct measured against that training. 48 As to the training on how to deal with aggressive passengers, he was told to take a defensive posture or to put his arm out in a straightened fashion with the palm of the hand vertical, as in a police officer showing a "stop" sign when directing traffic. The defensive posture involved putting the forearms in front of the head in order to protect the head. 49 Given that explanation, the applicant was asked to explain his aggressive conduct towards the female passenger as when he placed his hand on her right shoulder and grabbed hold of her shirt and pulled her back into the cabin (8:58:41); he placed the palm of his left hand onto her face and pushed her back towards the front door, which are still closed. Her head tilts back (8:58:44); he raises his left arm and appears to attempt to grab the passenger's arm (8:58:45); he leaned forward from his chair, with his left arm outstretched and pushed the passenger on the upper part of her right arm (8:58:49); he moved towards the passenger and with his left arm outstretched, grabbed the passenger's scarf that is wrapped around her neck and takes it off her (8:58:51); and he struck the female passenger on her face with his open hand, causing her to stumble backwards towards the open front doors (8:58:54). 50 His response to the above aggressive incidents was that he could not explain his conduct or he thought she might hit him. 51 Mr Moscabenny, Staff Supervisor at Kingsgrove Depot, was questioned (after the applicant gave evidence) about the training he was given for dealing with aggressive passengers. The training advised to put up a hand signal and yell out loudly for all passengers to hear, "Stop". At the same time, the driver was to open the doors and activate the emergency button, if the driver felt threatened. (Tr 02/09/10 - p48, line 35 to 46) 52 Before considering the above incidents of aggression, the Commission records matters from the applicant's employment history. He received customer complaints against himself in 2007, 2008 and 2009. On occasions, he was counselled over these customer complaints. A warning letter was issued to him on 1 May, 2009 concerning his interaction with a customer. He was warned that further "severe" breaches of the code of conduct may result in dismissal. He was again given a performance issue letter on 28 July, 2009 and counselled as to further breaches may result in disciplinary action, including dismissal. (Ex 5, Annex 2) CONCLUSION 53 In considering the above conduct of aggression by the applicant, the Commission concludes that the relevant particulars of charge pertaining to the female passenger, made against the applicant, have been sustained. Thus, the applicant: · failed to demonstrate the appropriate and professional conduct towards a female passenger. · displayed undue and excessive physical force towards that female passenger in circumstances where there were no further signs of aggravated threats towards the applicant. · failed to maintain an appropriate professional standard of behaviour in the presence of the public. 54 As to the foregoing, the applicant's defence is that of self defence in respect of his involvement in the physical altercation. The Commission accepts that the applicant did not initiate the physical altercation. It was begun by the female passenger. However, instead of letting the female passenger alight from the bus, he reached over and applied physical force to her shoulder in order to grab her attention. This physical act could have been an instinctive reaction for being struck by the plastic bag or even an instinctive reaction to the surprise of the passenger's behaviour. If no more came of the incident, then the Commission may have found that the applicant's dismissal was unfair because the applicant reacted to a provocation: Corkery v M F Galliano Pty Limited (unreported, Industrial Relations Commission of NSW, Connor C, IRC 2987 of 2002, 6 December 2002, of 9 & 10). However, the applicant then engaged in physical aggression towards the female passenger. This aggression included physical force on her person to the extent that he tilted her head backwards and caused her to stumble backwards. On one of those occasions, the female passenger was not looking at the applicant but towards the approaching male passenger. The applicant struck her whilst she was not looking at the applicant. For these other acts of aggression, the applicant cannot claim self defence or that he was provoked. 55 Given the foregoing conclusion, the Commission is not moved to intervene in the respondent's decision to terminate the services of the applicant. That is, the Commission does not find that the applicant was unfairly (harshly, unjustly or unreasonably) dismissed. A Macdonald 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.