Transport Appeal Boards New South Wales Medium Neutral Citation: Ford v State Transit Authority of New South Wales [2011] NSWTAB 12 Hearing dates: 14 July, 2011 and 15 July, 2011 Decision date: 21 July 2011 Before: Connor C (Board) Decision: Appeal for reinstatement rejected Catchwords: DISMISSAL - bus driver - breach of established code of conduct - misconduct - unsafe driving causing injury to passengers - denial of wrongdoing by employee - onus of proof - past conduct considered relevant Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Hales v Kerr (1908) 2 KB 601 Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517 Makin v Attorney General for New South Wales (1894) AC 57 Martin v Osborne (1936) 55 CLR 367 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White No.3 (1990) 35 IR 70 R v Smith (1915) All ER Rep. 262 Sewell v New South Wales Police Force (2008) 174 IR 247 Wang v Crestell Industries Pty Limited (1997) 73 IR 454 Category: Principal judgment Parties: Justin Ford (Appellant) State Transit Authority of New South Wales (Respondent) Representation: Chris Preston, Rail Tram and Bus Union (Appellant) Greg Hanson, State Transit Authority of New South Wales (Respondent) File Number(s): TAB 806 of 2011 DECISION INTRODUCTION 1Mr Justin Ford has worked for the State Transit Authority of New South Wales for over twelve years. He commenced employment with the STA as a trainee bus driver in the middle of 1999 and progressed through to a bus operator (Level 2). He was suspended from duty on Monday, 7 March, 2011 and his services as a bus operator were terminated on Friday, 25 March, 2011 following investigation by the STA of an incident which occurred on the bus Mr Ford was driving on Sunday, 5 March, 2011. The STA regarded Mr Ford's actions on that day as misconduct and a breach of the STA code of conduct and instructions in the handbook for bus operators. Whilst performing his shift [D539] on a bus [1866ST] travelling from Circular Quay to Lilyfield [Route 470] he drove in a dangerous manner, braking heavily and suddenly without apparently any reason to do so and, in the process, causing injury to his passengers. 2Mr Ford lodged a notice of appeal to the Transport Appeal Board on Friday, 25 March, 2011. The matter was the subject of an unsuccessful attempt at conciliation before Macdonald C on Monday, 2 May, 2011 and the file was subsequently allocated to me for hearing on Thursday, 14 July, 2011 and Friday, 15 July, 2011. Mr Ford is a member of the Rail, Tram and Bus Union and in the hearing he was represented by it. Mr Preston appeared in the proceedings for Mr Ford and the RTBU, calling Mr Ford to give evidence in the hearing. Mr Hanson represented the STA in the hearing. He called three staff members at the STA Leichardt bus depot as witnesses: Mr Peter Smart, the staff manager, Ms Daniela Fontana, the depot manager, and Mr Arthur Duncan, staff supervisor. THE INCIDENT 3Sunday, 5 March, 2011 was the date of the Gay and Lesbian Mardi Gras and consequently there was a substantial amount of people in the city requiring transport. A number of youths got on Mr Ford's bus and told him that they did not have any money for a fare. He told them they could remain on the bus but could not occupy a seat in place of a paying passenger. They stood near the rear door of the bus, swinging on the overhead rail, occasionally with their feet off the floor. Mr Ford told them to stop doing so but they do not appear to have been taking any notice of him. 4In the written statement which he provided, Mr Ford asserted that at the time of the incident he had been resting his right foot half on the accelerator pedal and the other on open space. He contradicted that assertion in his oral evidence, saying that he was "feathering" the brake, ie he had his right foot partly on the accelerator and partly on the brake. In my opinion, the distance between the accelerator pedal and the brake pedal on the bus would make it difficult for him to do that, especially since there is a metal bar between the two pedals. In any event, Mr Ford claimed that his foot slipped off the accelerator pedal and onto the brake pedal and the bus braked suddenly as a result. Mr Ford claimed that his boots were worn but photographs supplied to me of his right boot do not show any particular wear - certainly not to the level to give any support Mr Ford's claim that it lacked traction. 5The youths appear to have been unaffected by the sudden braking of the bus but some passengers were injured. One of the male passengers, whilst he had been seated, had hit his head with some force on a metal screen in front of his seat and had a nose bleed - possibly a broken nose, according to Mr Smart. Another female passenger had fallen to the floor. After the incident Mr Ford assessed the nature of the injuries to the passengers and contacted the radio room, requesting medical support, which was provided. An ambulance was called and the passenger who had hit his head and had a bleeding nose was, in fact, taken to a local hospital by the ambulance. According to Mr Ford, the other passengers had only minor cuts and bruises. Following the incident, he continued his bus on its run. 6One female passengers wrote a memorandum and provided it to the STA outlining her view of the incident: "....My girlfriend and I got on the bus from Circular Quay. (She was sitting on the right of the bus and I stood. Being a visitor to Sydney I wanted to see what was about. Some youths got on the bus after us at a later stop and stood in the centre of the bus at the middle door. Twice the driver cautioned them to stop swinging on the bars from the top or they could walk to their destination. We then drove further and upon approaching a stop the driver slowed and then slammed his foot on the brake. This sent me falling forward onto the floor of the aisle. I received a wound to my wrist - not very bad, but enough to draw blood. Other people were shocked and everyone left the bus. I can't remember if the bus driver told everyone to get off or we just did. But I wasn't going to stay, that's for sure! It is my belief the bus driver intentionally slammed on the brakes. As he explained it, his foot slipped, but as he was already applying the brakes I don't see how this is possible. I believe he did it to scare the boys in the middle of the bus and didn't think of the consequences of his actions. A mistake? Maybe. A stupid act? Definitely..." 7Mr Duncan inspected the bus operated by Mr Ford on that night in question, particularly the accelerator and brake area. He disputes the version advanced by Mr Ford over the incident. He also examined Mr Ford's boots and rejects Mr Ford's claim that they were worn. 8In his subsequent investigation, Mr Smart did not rely on that passenger's assertion that Mr Ford was actually applying the brakes on the bus already when he suddenly slammed on the brakes harder - although that supports Mr Ford's recollections. But there was no traffic ahead of the bus and consequently no reason to brake the bus. Mr Smart claimed that allegation by the passenger could not really be confirmed in the evidence. I agree. But to Mr Duncan, Mr Smart and Ms Fontana, whose ultimate decision it was to terminate Mr Ford's services, security video footage of the incident, also shown to me in the hearing, supports their claim that Mr Ford applied the brakes on the bus suddenly in response to the youths who were misbehaving near the rear door of the bus to put them off balance. SUBMISSIONS 9Mr Preston argued for Mr Ford's reinstatement in employment as a bus driver and for him to receive compensation for loss of earnings since his dismissal. Mr Ford has found alternative employment with a private bus company since his dismissal, although there is nothing before me in the evidence to indicate how much he has earned in that capacity and consequently the level of his loss of earnings. Mr Preston highlighted in his submissions several issues which revealed Mr Ford's satisfactory work performance as a bus driver. For instance, on Tuesday, 16 March, 2010 Mr Ford was awarded a certificate of commendation for displaying excellent customer service skills. He was one of the drivers offered to drive a hybrid bus. His driving safety record is unremarkable and whilst he has some accidents whilst driving a bus recorded on his record, very few of them appear to actually have been due to any fault on his part. 10Nevertheless, as Mr Hanson submitted, Mr Ford's employment as a bus driver with the STA reveals him to have had a far from unblemished record. I will deal with those past incidents in Mr Ford's employment later in this decision. However, Mr Hanson argued in his submissions that there were no grounds for Mr Ford's reinstatement in employment with the STA as a bus driver because of the incident on Sunday, 5 March, 2011. Mr Hanson believed that the evidence before me, particularly the security video, was sufficient to establish that Mr Ford had deliberately applied the brakes on his bus - a very unsafe act, causing injury to passengers. CONCLUSION 11As I indicated earlier in this decision, Mr Ford has been involved in a number of other incidents flowing from his attitude at work to passengers and another bus driver which have come under notice by the STA, viz: * On Monday, 2 March, 2009 Mr Ford abandoned his bus following an altercation with a passenger whom he claimed had been abusive and uncooperative. He asked everybody to leave the bus and started to walk back to the depot. He then returned and seeing the passenger still on the bus, threw his property off the bus. He subsequently apologised for this incident and received a formal warning over his conduct. * On Tuesday, 20 October, 2009 Mr Ford claimed that he was confronted with another abusive passenger. He declined to move the bus for up to ten minutes and failed to stop at a designated bus stop. Mr Ford claimed that when he "...got his head straight..." he apologised to the remaining passengers. He received a final warning over the incident. * On Thursday, 12 August, 2010 Mr Ford travelled beyond the available space behind another bus at the bus zone, remaining in the centre of the road and opening the front door to his bus and, in the view of the STA, placing passengers at risk. For instance, Mr Ford had to intervene to stop a woman with a child stroller getting off the bus and an elderly passenger boarded the bus in the meantime. Mr Ford had done that to remonstrate with another bus driver whom he claimed had failed to pick up a passenger. He argued with that bus driver through the open door. He then pulled his bus in front of the other bus, left the bus, leaving it unattended, to carry out the argument he had with the other bus driver. The other bus driver lodged a complaint over Mr Ford's conduct. 12These complaints have a common element, of course - they are all essentially related to Mr Ford's conduct with passengers and other persons. 13Where an allegation against an employee is made, and denied by him, the onus of proving that allegation falls on the employer [ Pastrycooks Employees, Buiscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No.3) (1990) 35 IR 70 at pp.83 and 84, Wang v Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464 and Sewell v New South Wales Police Force (2008) 174 IR 247 at p.275]. And whilst it is the civil standard - the balance of probability - on which that onus must be discharged, that proof must be established according to the stricter test in Briginshaw v Briginshaw (1938) 60 CLR 336. 14As a general rule, and following customary procedure in all litigation, evidence of similar facts or acts in the past are usually not admitted into evidence to establish that an employee is guilty of a particular offence subsequently. The evidence that a person has done similar acts in the past is irrelevant to show that the person did a particular act at a later time. But, as I see the situation, that is far from a hard and fast rule of evidence and there are many examples where past conduct has been received into evidence [ Makin v Attorney General for New South Wales (1894) AC 57, R v Smith (1915) All ER Rep.262 and Martin v Osborne (1936) 55 CLR 367]. 15In Hales v Kerr (1908) 2 KB 601 Channell J explained the situation in this manner: "...It is not legitimate to charge a man with an act of negligence on a day in October and to ask a jury to infer that he was negligent on that day because he was negligent on every day in September... But when the issue is that the defendant pursues a course of conduct which is dangerous to his neighbours, it is legitimate to show that his conduct has been a source of danger on other occasions, and it is a legitimate inference that, having caused injury on those occasions, it has caused injury in the plaintiff's case also..." 16And, in my opinion, Mr Ford's conduct on past occasions seems to me to establish a pattern of behaviour that is wholly consistent with the STA argument on this occasion that he behaved with aggression and anger in deliberately and suddenly braking his bus. 17Moreover, past conduct remains a relevant consideration in an employer's deliberations as to whether or not an incident justified a dismissal. I note from the written statement that Ms Fontana provided as the basis of her evidence in this hearing that she took into account Mr Ford's past conduct when reaching her decision to terminate his services: it was proper that she do so [ Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 at p.27]. 18In that respect, in John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517 Sheppard J of the former State Industrial Commission commented that a past act of misconduct: "...does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be relevant to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about a dismissal..." 19To my mind, the security video footage on which Mr Hanson chiefly relies in this hearing does support the claim that Mr Ford acted deliberately when he suddenly applied the brakes on the bus. There is no body movement shown consistent with a slip of his foot: nor does he appear to show any surprise or concern following the sudden braking of the bus. 20I accept that driving a public vehicle, and dealing with traffic and regularly being confronted with difficult passengers (and in this case uncontrollable youths), is a very stressful occupation. It is one type of employment which can be very demanding and not for a person who has a temper. I accept that Mr Ford was confronted with youths who were misbehaving on his bus and that his decision to brake suddenly was a spur of the moment decision. Nevertheless, his temper on this occasion, as with other occasions in the past drawn to my attention in the hearing, was clearly inappropriate - and it lead to injuries to passengers, one serious. 21I do not believe that his explanation for the incident is plausible and the conclusion the STA has made that his act of braking the vehicle suddenly was deliberate and directed to the youths who were misbehaving in the bus was clearly open to it - as it is to me in this hearing. OUTCOME 22In the circumstances, the TAB sees no grounds to intervene in support of Mr Ford in this hearing. I consequently dismiss his appeal. P J CONNOR 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: 21 July 2011