Transport Appeal Boards New South Wales Medium Neutral Citation: Kyriakou v State Transit Authority [2011] NSWTAB 17 Hearing dates: 4 February, 24 March, 7, 8, 15 and 20 April 2011 Decision date: 08 September 2011 Before: Bishop C Decision: Appeals Disallowed Catchwords: PUBLIC SERVICE - discipline and misconduct - bus driver - employee lodged various complaints against management - concerns as to behaviour/conduct and attendance - directed to attend psychiatric medical assessment as to fitness to drive - refusal to comply with directive - employee suspended - discipline inquiry - employee dismissed - appeals to Transport Appeal Board - HELD - directive lawful and reasonable - misconduct occurred - dismissal warranted in circumstances. Legislation Cited: Passenger Transport Act 1990 Passenger Transport Regulations 2007 Protected Disclosures Act 1994 Transport Administration (Staff) Regulation 2005 Transport Appeals Board Act 2005 Uniform Civil Procedure Rules 2005, Cases Cited: Adami v Maison De Luxe Limited (1924) 35 CLR 143 Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395 Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Izdes v L G Bennett & Co Pty Limited t/as Alba Industries (1995) 61 IR 439 Salat v NSW Police Force [2011] NSWIRComm 1040 Thompson v IGT (Australia) Pty Limited [2008] FCA 994 Varas v Fairfield City Council [2008] FMCA 996 Category: Principal judgment Parties: Andrew Kyriakou (Appellant) State Transit Authority Division of the NSW Government Service (Respondent) Representation: Andrew Kyriakou (Appellant) Elizabeth Allen (Respondent) State Transit Authority File Number(s): TAB 1348 and 1617 of 2010 DECISION Introduction 1Mr Kyriakou commenced employment with the State Transit Authority, Division of the New South Wales Government Service (STA) as a Trainee Bus Operator on 29 June 2004. He completed his Traineeship at the Port Botany Depot and then transferred to the Randwick Depot in June 2006. 2On the 13 August 2010 Mr Kyriakou was suspended without pay pending a discipline inquiry pursuant to clause 29(1) and 29(3) of the Transport Administration (Staff) Regulation 2005 . This discipline inquiry ultimately led to his dismissal. 3On the 2 September 2010 Mr Kyriakou lodged an appeal to the Transport Appeal Board against his suspension without pay, pleading not guilty (TAB 2010/1348). 4On the 17 November 2010, Mr Kyriakou was dismissed from his position of Bus Operator Level 2 for breaching the STA Code of Conduct in that he failed to comply with a reasonable and lawful direction issued to him. 5On the 24 November 2010 Mr Kyriakou lodged an appeal to the Transport Appeal Board against the decision of STA to dismiss him (TAB 2010/1617), pleading not guilty. Background and Chronology 6The following Background and Chronology is taken from the witness statements of Andrew Kyriakou, Barbara Phillips, Selina Hatcher, Martin Byatt, Tarek Sabih and the oral evidence of Ken Wheeler. 7There are approximately 370 employees at the Randwick Bus Depot of whom about 330 are Bus Operators. The Depot operates on a 24/7 basis. 8On 7 May 2010 an Absence & Late Report was submitted concerning Mr Kyriakou arriving at Randwick Depot 10 minutes after the due sign-on time for his rostered shift. The reason given by him was "locked home keys inside the house" (Exhibit 11-37) . 9On 19 May 2010, Mr Ken Wheeler, Randwick Depot Manager, had a telephone conversation with Mr Kyriakou which was subsequently referred to in an email to Mr Kyriakou on 20 May 2010 at 3.25 pm (Exhibit 11-37) as follows: Subject: RE: Andrew Kyriakou-telephone conversation 19 th May 2010 Andrew, You need to follow the correct procedures please. Once you have been issue (sic) with the E1 letter relating to allegedly being late employed on 7 May you will be afforded 7 days in which to provide a response. The original of the document you have from the Real Estate Agent along with any other details/explanations you may wish to provide should then be lodged for consideration by management. No decision can be made as to outcome until available evidence is at hand. The matter of payment of annual leave in lieu of sick leave can be considered following your resumption and presentation of sick leave application forms along with appropriate medical certificates covering the period in question. You are not entitled under State Transit Policy to cash in any current year annual leave. Ken Wheeler Depot Manager, Randwick 10On the afternoon of 19 May 2010 Mr Kyriakou telephoned Ms Barbara Phillips, (the then General Manager, Human Resources) and raised with her a number of issues of concern to him about the Managers at the Randwick Depot and advised that he would be forwarding a report on these matters. Ms Phillips made a handwritten file note of the conversation (Exhibit 2-1). 11On Friday, 21 May 2010 there were further email exchanges between Mr Kyriakou and Mr Wheeler, Manager Randwick Depot, concerning the leave approved by Mr Sabih (Depot Staff Manager) the previous week and Mr Kyriakou's request that his current week's sick leave be converted to annual leave as he was in "dire financial strife" (He did not have any paid sick leave left). Mr Wheeler had replied by email indicating that he could not process the application until he had original documents, rather than a photocopy, and would give it priority on the following Monday (Exhibit 2-2). 12On Saturday, 22 May 2010 at 4:43pm Mr Kyriakou responded to Mr Wheeler's request by email in which he expressed disappointment in Mr Wheeler's actions as Depot Manager, alleged that he never had any intention of approving or paying the leave and that "it's quite clear this can only be construed as yet a further example of the sheer level of discrimination and harassment by you and number of your managers at Randwick Bus Depot over the last 12 months." He sought an explanation regarding "this debacle" and wanted a written response to every aspect outlined in the email (with policy referred to) and a detailed explanation as to why there were so many inconsistencies regarding this matter and why he was being treated very differently to everyone else (Exhibit 11-38). 13On Monday, 24 May 2010 (at 3:53 am) Mr Kyriakou emailed a 6 page letter to Mr Wheeler (also copied to Ms Phillips) raising a number of issues for which he sought an explanation (Exhibit 2-2), summarised as follows: Mr Bruce Eddy the Depot Union Delegate being allowed to sleep in his car in the Depot after completion of his shifts; Another driver received a penalty of 10 days suspension of pay and duty for collecting fares and not supplying tickets; A driver falling asleep at the wheel and causing accidents later receiving a "Safe Driving Award"; Inconsistency of clocks at the Depot (the clock in the Inspector's office and the PRM clock) leading to the declining of his "legitimate" late running claims; Managers believed they were "above the law;" Failure to make payment of sick leave to annual leave on the basis of failure to provide "original medical certificates; Allegations of blackmail (withholding of pay as above), discrimination, bullying and harassment were also made. 14In this letter Mr Kyriakou also applied to take his remaining annual leave entitlement of 8 days (as from 24 May 2010) which was subsequently granted and paid (Exhibit 2-3). 15On Monday, 24 May 2010 at 9:14 am Mr Wheeler sent an email to Mr Kyriakou "RE: Andrew Kyriakou - request for payment of annual leave - Rejected" (Exhibit 13-1). Mr Wheeler maintained that this email was in response to the email Mr Kyriakou had sent him on Saturday 22 May 2010 at 4:43 pm (see Evidence below). The email was as follows: Andrew, I have no intention of entering into an email war with you nor will I respond to your scurrilous accusations of harassment and discrimination. You were advised quite plainly that you are not entitled to claim cash payment for current annual leave however favourable consideration would be given to allowing you to clear accrued annual leave in lieu of sick leave, given that you (sic) sick leave entitlements have been exhausted. The one proviso was that you provide an application form and the original medical certificate for the period in question, no more no less. I undertook to give this priority on the assumption that this documentation would be available this morning based on your advice that you would be resuming duty today. You need to provide this information to allow the matter to be progressed together with medical certificate(s) covering you (sic) absence since Monday 17 May. I will not be responding to any further e-mails from you. 16Later that same day (24 May 2010 at 5.43 pm) Mr Kyriakou sent an email to Ms Phillips concerning the withholding of his pay (the sick leave conversion to annual leave approved by Mr Sabih) and seeking an instruction to be forwarded to Mr wheeler to release and forward the appropriate leave forms to payroll to enable him to be paid due to his extreme financial difficulties. A copy of his 6 page report to Mr wheeler was also attached to this email (Exhibit 2-2). 17Ms Phillips forwarded Mr Kyriakou's email to Mr Gerard Dunne, a Human Resources Advisor in STA's Workplace Change, Culture and Equity Unit (Exhibit 2-2). 18On 31 May 2010 the Transport Appeal Board (but not as currently constituted) heard and disallowed an appeal by Mr Kyriakou against the decision of STA to regress him from the position of Bus Operator Level 2 to the position of Bus Operator Level 1 for a period of 4 weeks (TD 852/10) in relation to a late running claim on 5 December 2009. A written decision was subsequently issued by the Board on the 22 June 2010 (Exhibit 11-33). 19On 1 June 2010 Mr Kyriakou received the Form E1 from Ms Heather Brown, the Staff Supervisor concerning his late arrival at work on 7 May 2010. The Form E1 was dated 10 May 2010. In handwriting on the Form E1 was a handwritten notation "Issued 1/6/10 1.05 pm. Refused to sign. In presence of B/O Rhys Banwell" (Exhibit 11-37). The E1 was subsequently withdrawn following submission of Mr Kyriakou's explanation. 20A Form E1 is issued in relation to an alleged incident which may be in breach of State Transit's policies. The particulars and background detail of a charge are listed and an employee is given 7 days in which to explain the circumstances of the alleged incident, an interview may be necessary and if no response is received a decision will be made as to whether any corrective action is warranted. 21Also on 1 June 2010 Mr Kyriakou submitted a General Report Form (which was received by Staff Supervisor Heather Brown at 1:35pm), advising that he was unable to commence his shift as a result of receiving the E1 as " I am unable to drive a heavy vehicle bus out onto the public street as a result of being handed this E1 in the state of terror I am feeling." He also indicated that he had contacted the Human Resources Head Office, left an urgent message for Ms Phillips to contact him and was awaiting instructions from her (Exhibit 2-4). 22Mr Kyriakou then went to the Strawberry Hills Head Office of STA seeking to speak to Ms Phillips, however she was unavailable. Ms Julie Colman, accompanied by Mr Laurie Fabian, spoke briefly to Mr Kyriakou. Ms Coleman and Mr Fabian each made formal 'File Note' about this contact. Ms Coleman noted that he "was a little agitated" and Mr Fabian noted that that "at no time during my conversation with Mr Kyriakou did I feel threatened or uncomfortable". They noted the following in relation to what Mr Kyriakou said to them (Exhibit 2-5): Ms Coleman: Mr Kyriakou said he believed Randwick management did things to suit themselves and did not listen to him. Mr Kyriakou said he did not feel fit enough to drive a bus and he indicated that he would return to his depot and sign himself off. Mr Kyriakou said did not want to be responsible if he drove and put someone in the morgue. Mr Fabian suggested to Mr Kyriakou that he speak to his staff supervisor about the discipline matter. Mr Fabian: He spoke for a few minutes about his particular concerns and referred to his personal stress that he is experiencing at work. He expressed concern about involuntarily harming people while driving on the road as a result of his stress - he used the words, or words to the effect of, 'kill people while driving on the road'. He did use the word 'kill' about three times in this context. At no time during the conversation with Mr Kyriakou did I feel threatened or uncomfortable. He did not present himself as someone who had the intention to threaten physical harm upon myself or Julie Coleman or indeed, himself. 23Later, on 1 June 2010 at 3:15 pm, Mr Gerald Dunne, Senior Human Resources Advisor, telephoned Mr Kyriakou on his mobile phone number in response to his General Report, and advised him that he would not meet with him, that he should respond to the E1 and that if he was unwell he should take sick leave. Mr Kyriakou said to him he had done that at the time. Mr Dunne advised him to again respond. Mr Kyriakou said he would seek legal advice. Mr Dunne made a handwritten file note of both that conversation and his subsequent phone call with Mr Tarek Sabih, Staff Manager, Randwick Depot. Mr Sabih advised him that Mr Kyriakou had returned to the Depot, applied for leave, but that this would not be approved after discussion with Mr Wheeler, and that Mr Kyriakou should attend for duty as rostered (Exhibit 2-6). 24Also on 1 June 2010 Mr Kyriakou lodged another General Report Form, which was noted by Staff Supervisor Heather Brown as being received at 4:05pm, (Exhibit 11-38) seeking the following: I would like to apply for immediate five days annual leave effective from 1/6/10. The reason/s for this urgent application for A/leave is that I need to avail myself properly so I can complete my comprehensive report into numerous issues compounding my ability to effectively discharge my duties. These issues are to a large extent if not totally as a result of the ongoing and malicious campaign of harassment, intimidation, bullying and otherwise ill treatment towards me by my immediate managers at Randwick Depot. A copy of this report will be forwarded to Human Resources upon completion. 25On 2 June 2010 Mr Kyriakou sent Mr Dunne a 3 page response to their 1 June phone conversation (Exhibit 2-7) and expressed concern at Mr Dunne's lack of understanding; referred to "a systematic, deliberate and ongoing campaign of harassment" and concerns that the issues he had raised were not being addressed "to a reasonable standard by his employer". Reference was made to specific extracts of STA's Policy Statement and Commitment to Equity and Diversity. He also indicated: I informed you that as a result of the above I required some leave so I could contemplate and pursue other options to address the grave issues I currently face. I thought that it would not be wise for me to just deal with and accept the E1 and just go out and get behind the wheel of a heavy vehicle with a bus load of passengers out onto the public street in light of what's occurred and in particular in light of the current oppressive and hostile work environment with some of the Managers at Randwick Bus Depot. I also felt your lack of understanding in relation to my current issues and concerns particularly when I informed you that my health has been impacted as a direct result of the hostile environment at work. Your stance was that I should just deal with the issue of the E1 and not to impede my rostered line of work. Other issues I raised were somehow obscured and not entirely a priority or a concern for STA it would appear. 26On the 3 June 2010 Mr Kyriakou sent an email to Ms Phillips concerning earlier documents he had forwarded; his visit to STA's Head Office on 1 June and attempts to arrange an appointment with her; his concerns as to his ability to function properly as a Bus Operator due to being "harassed, intimidated or otherwise ill-treated by some of these managers and then having to drive a bus full of passengers and risk a serious accident all because my mind and focus has been terrorized by the very Managers who have made a point of making life extremely difficult for me". He went on to request a transfer to Waverly Bus Depot "momentarily on loan at least", until such time as his current issues were addressed "in their totality" (Exhibit 2-8). 27On 7 June 2010 Mr Kyriakou emailed a 15 page letter to Ms Phillips (also copied to Mr Dunne) and forwarded by facsimile the 14 Annexures referred to therein, in what he referred to as a "Part 1 Report". He raised various issues concerning the history of an E1 previously issued to him in 2009 concerning a fraudulent claim for 11 minutes; his subsequent regression in rank; issues to do with late running claims; complaints about "illegal and vindictive behaviour" of his Managers at Randwick; complaints of incidents of victimisation and harassment; allegations of bets being placed amongst drivers about his future; and impacts on his health and his personal family circumstances (Exhibit 2-9). 28Ms Phillips had subsequent telephone and email contact with Mr Kyriakou between the 15 and 21 June 2010 during which he referred to the completion of Part 2 of his comprehensive report which contained "a number of serious allegations of official corruption levelled against several managers at Randwick" and issues with his further application for annual leave. Ms Phillips advised that she was attempting to resolve the issues he had raised in his Part 1 Report and anticipated a meeting to be held the following week (Exhibit 2-10). 29A meeting was subsequently arranged by Ms Phillips (to be attended by Mr Sabih) with Mr Kyriakou for 1.30pm on 30 June 2010 at the Randwick Depot. On 28 June Mr Sabih sent a handwritten facsimile to Ms Phillips listing 7 detailed issues to be raised with Mr Kyriakou in the proposed meeting (Exhibit 11-42). Those issues covered the following (summary only): Arrive at work on time & as scheduled every day, failure to do so leading to disciplinary action including dismissal, Must operat and perform work as scheduled, Not interfering in others' business, if observing something wrong, put it a General Report for management's attention and action, Use of email not how business done at the Depot, face-to-face meetings with supervisors to discuss issues, emails not to be responded or accepted in future, Request to investigate payment discrepancies not to be attended to if more than 2 pays previous, need to check pay docket at time emphasised, Need to stick to Bus Operator job requirements and duties, No agenda towards him and if not brought to management's attention for possible breach then management has nothing to do with him. 30On 25 June 2010 Mr Kyriakou submitted to Transport NSW his Transport NSW Medical Assessment application form for renewal as a Public Passenger Vehicle Driver. The application indicated that he had been medically assessed on 4 June 2010 (by Dr Koutsoullis) and cleared to drive a Public Passenger Vehicle. (Exhibit 13-6). 31On Tuesday, 29 June 2010, Mr Kyriakou's mother collapsed at her home and was admitted to Bankstown Hospital. Mr Kyriakou was advised of this by Campsie Police at approximately 4:30 pm whilst he was at work. When he returned to the Depot from his scheduled trip he advised that he needed to terminate his shift due to this hospitalisation, left the Depot and went to Bankstown Hospital, where he remained until the early hours of the next day (Exhibit 14). 32On Wednesday, 30 June 2010, at 2:14 am Mr Kyriakou sent an email to Ms Phillips and detailed the hospitalisation of his mother which was caused by news of a serious issue concerning his sister (Exhibit 13-8). He went on to say: I don't have a problem coming into work for this meeting because I know how difficult it is to arrange such a meeting, given your hectic work schedule, I can rearrange my schedule and perhaps attend hospital to see mum after the 1:30 pm meeting has concluded. I can also arrange to produce documentary evidence in support of any of the above should you require. 33Mr Kyriakou did not communicate further with Ms Phillips or contact her or the Randwick Depot in any way after sending this email and did not attend the meeting. 34Mr Kyriakou was absent from work on 30 June, 1 and 2 July 2010 due to the illness of his mother. On Friday 2 July 2010 Mr Wheeler advised Mr Kyriakou by phone that he was to not attend the Deport for his rostered shifts on the weekend. Mr Kyriakou sent an email to Ms Phillips concerning this instruction to which she replied confirming the instruction on the basis of issues as to his fitness to drive at present due to concerns held by STA (recent conflict in the workplace; his family circumstances; his attitude towards management at Randwick; his general pattern of attendance and his failure to turn up to the meeting and failure to notify). She advised that a letter would be couriered to him either that day or Monday providing more details and a requirement to attend a medical assessment. (Exhibit 2-11). 35By letter of 5 July 2010, Mr Wheeler advised Mr Kyriakou of concerns about his fitness to perform the inherent requirements of his position as a consequence of "a number of issues relating to your work performance and recent behaviour towards various State Transit personnel that appears unacceptable." He was directed to attend a medical examination on the 14 July 2010 with a consultant Psychiatrist, Dr Klass Akkerman, to determine his fitness for duty. (Exhibit 5-1). On 7 July 2010 Mr Wheeler also forwarded a letter to Dr Akkerman outlining the specific duties and physical requirements of a Bus Operator and relevant work history of Mr Kyriakou (Exhibit 5-2) and requested a summary of his findings on examination to the 'Assessing Fitness to Drive Standard Part B: (17) Psychiatric Disorders', and also the following: Fitness for Employment Do you consider that the worker is fit for full bus operator duties? If the worker is unfit for full bus operator duties in his/her workplace role, would he/she be fit to perform full bus operator duties in another State Transit location? If the worker is deemed unfit to perform full bus operator duties, please indicate when this situation is likely to change. Further Comments Any other relevant comments. 36The issues raised with Mr Kyriakou by Mr Wheeler in the 5 July letter were as follows: With respect to your attendance, there appears to be a pattern where you have turned up and worked as rostered on weekends but been absent during weekdays, claiming you are unfit to work your rostered shifts. In some of these instances your absence has not been substantiated by way of medical certificates. Further, I have received advice from a number of State Transit staff that you have acted inappropriately regarding the tone and manner of your recent communication with them. Some of these incidents include: An offensive email to Ms Heather Brown in which you accuse her of maliciously and knowingly refusing to pay monies owed to drivers; Manipulating an 11 minute legitimate claim you lodged in which you believed resulted in you being labelled a thief and not following policies and guidelines; Using foul and threatening language towards Bus Operator Melia in the meal room when the disagreement occurred over the changing of the television channels; Approaching Mr Bruce Eddy in the depot yard and speaking to him in an aggressive and threatening manner accusing him of spreading rumours and defaming your character in the depot; Speaking to management in an aggressive and threatening manner when issues arise with staff members. 37Reference was also made in the letter to Mr Kyriakou making contact with State Transit personnel, including Ms Phillips and Mr Sabih, concerning "new and unresolved issues" that he wanted to discuss, with a meeting arranged with them for 29 (sic) June 2010 at the Randwick Depot to discuss these issues, that he failed to attend the meeting and failed to notify the parties of his absence. He was also advised that the alleged inappropriate behaviour would need to be addressed with him. 38STA agreed to provide Mr Kyriakou with paid administrative leave from 3 to 14 July 2010 inclusive, subject to his attendance at the scheduled appointment and his ongoing cooperation regarding his fitness for duty. STA made payments to Mr Kyriakou to this effect (Exhibit 2-13). 39On 14 July 2010 Mr Kyriakou forwarded by facsimile an extensive letter to Mr Wheeler responding to issues raised in the 5 July 2010 letter concerning the basis for the requirement for him to attend the medical assessment (Exhibit 2-14). 40On 13 July 2010 Mr Kyriakou contacted Mr Wheeler by mobile phone and informed him that he would not be attending the medical appointment scheduled for 14 July 2010 (Exhibit 13). 41On 14 July 2010 Mr Wheeler wrote to Mr Kyriakou inviting him to show cause why he was unable to attend the appointment; why he did not comply with the direction to attend the appointment, and why he did not notify STA earlier about his non-attendance (Exhibit 2-16). 42On 15 July 2010 Mr Kyriakou wrote to Mr Wheeler concerning his non-attendance at the appointment and also making a variety of allegations against his Managers (Exhibit 2-17). 43On 19 July 2010, Mr Martin Byatt, General Manager Eastern Division, wrote to Mr Kyriakou reinforcing the requirement to gain a clearance from a medical practitioner before any return to his duties. Accordingly, he was provided with a further opportunity to comply with this direction. Mr Kyriakou was also provided an opportunity to obtain a clearance from his own doctor. It was also indicated that there appeared to be no basis to continue to pay him. (Exhibit 7-2) 44On 20 July 2010 Mr Kyriakou sent a letter to Mr Byatt concerning the cessation of his pay and alleged that it was "a further extension of STA's hostilities" towards him; requested an emergency meeting with him; raised a variety of allegations against Managers at the Randwick Depot and requested reconsideration of the decision to cease his pay (Exhibit 7-3). 45On 21 July 2010 Mr Kyriakou indicated by email to Mr Byatt his agreement to attend his own medical practitioner (Dr Koutsoullis) and that he had arranged for an appointment that was scheduled for the 23 July 2010 (Exhibit 7). 46On 21 July 2010 Mr Byatt replied to Mr Kyriakou's letter of 20 July advising that payment had been ceased because he had failed to attend the appointment but that STA was prepared to reconsider granting administrative leave at the base rate of pay effective 21 July 2010 to 23 July 2010. The provision for payment of administrative leave was again subject to Mr Kyriakou's attendance at his doctor's appointment, and his ongoing cooperation regarding his fitness for duty. The letter also advised that many of the issues he had raised appeared to be issues and allegations he had previously raised, but that they had been forwarded to State Transit's Workforce Change, Culture and Equity Unit for examination. Comment was also made about the meeting that had not gone ahead with Ms Phillips as arranged for 30 June, but that a further meeting had been arranged for 27 July with Mr Byatt and Ms Phillips (Exhibit 7-4). 47On 21 July 2010 Mr Kyriakou responded to Mr Byatt's letter maintaining that STA did not have authority to sever an employee's wages as a consequence of the provisions of the State Transit Authority, Division of the New South Wales Government Service Bus Operations (State) Award and also the Premiers Memorandum M1994-35 (Exhibit 7-5). 48Mr Byatt responded to Mr Kyriakou's 21 July letter on the 22 July 2010 and indicated that if he failed to attend the scheduled doctor's appointment, then it would be appropriate to suspend him without pay pursuant to Clause 29 of the Transport Administration (Staff) Regulation 2005 (Exhibit 7-6) . 49Mr Kyriakou responded to Mr Byatt's letter on 22 July 2010 and provided a medical release in relation to his doctor's appointment. He further protested that the previous decision to cease his pay had been done without a "fair and proper investigation" into the reasons for his non-compliance with Mr Wheeler's direction to attend the original medical appointment (being his response to the issues raised by Mr Wheeler) (Exhibit 7-7). 50On 22 July 2010 Mr Byatt forwarded a letter to Mr Kyriakou's doctor, Dr Koutsoullis advising of the duties and physical requirements of a Bus Operator; relevant history concerning Mr Kyriakou, and sought advice as to his fitness to perform the full duties of a bus operator in similar terms as previously advised by Mr Wheeler to Dr Akkerman on 7 July 2010 (Exhibit 7-8). 51By further letter of 22 July 2010 from Mr Kyriakou to Mr Byatt he challenged the power of STA to suspend him under Clause 29 of the Regulation as a consequence of the operation of Clause 31, on the basis that a formal letter had to be issued before suspension of pay could be effected. He also took issue with payment being made at the base rate of pay (Exhibit 7-9). Mr Byatt subsequently advised Mr Kyriakou by phone and email on 30 July 2010 that his pay would be adjusted as soon as it could be processed by payroll (Exhibit 7-10). 52On 27 July 2010 Mr Byatt and Ms Phillips met with Mr Kyriakou . 53At Dr Koutsoullis' initiative, the medical appointment was rescheduled to 28 July 2010. STA agreed to continue to pay Mr Kyriakou administrative leave until this date. 54Mr Kyriakou attended the scheduled appointment with Dr Koutsoullis on the 28 July 2010. Dr Koutsoullis subsequently advised the STA that assessment of Mr Kyriakou's fitness for his employment was outside the scope of his expertise. Accordingly, he presented a list of specialists to whom Mr Kyriakou could be referred to make such assessment, one of those being Dr Keith Mayne. On 29 July 2010 Mr Byatt provided Dr Mayne with a letter with the same information as previously provided to Dr Koutsoullis (Exhibit 7-11) and STA organised an appointment for the 16 August 2010 for Mr Kyriakou to attend Dr Mayne for assessment. 55Between 3 and 4 August 2010 there were email exchanges between Mr Kyriakou, STA payroll, Mr Wheeler and Mr Byatt querying his administrative leave payments and requests for information as to payments and rosters applicable (Exhibit 7-12). 56On 5 August 2010 Ms Wheeler met with Mr Kyriakou (with Ms Tracy Morton in attendance) to discuss outstanding issues (his request for transfer, expunging from his file of the earlier disciplinary matter, reinstatement of another employee, reinstatement of annual leave taken and payment of wages consequentially foregone). He subsequently sent an email to Ms Wheeler confirming the issues raised and sought a response within from her 24 hours. Ms Wheeler responded that same day indicating inter alia that the transfer had been approved and the issue of annual leave and payments would be reviewed. He was advised that the records of the disciplinary matter could not be expunged as it had been the subject of a TAB appeal but undertook to review the documents on file and consider options available (Exhibit 2-22). 57On the 7 August 2010 Mr Kyriakou wrote to Mr Byatt again raising the issue of his 12 July letter to Mr Wheeler, the failure to investigate issues raised by him in response to the direction issued to attend a medical assessment; complained of issues concerning his administrative leave pay; breaches of the agreement with Mr Byatt about such pay and referred to emails and phone calls concerning this issue. Mr Byatt forwarded this letter by email to Ms Phillips (Exhibit 7-13). 58By letter of 10 August 2010, STA agreed to continue to pay Mr Kyriakou administrative leave until 16 August on the basis that he continue to cooperate with STA's directions regarding assessment of his fitness for work. Mr Kyriakou was also advised that disciplinary action would be taken against him if he failed to comply with the direction to attend (Exhibit 7-14). 59On Thursday,12 August 2010, Mr Kyriakou advised Mr Byatt by email that as he had not received a detailed response to his letter of 7 August, "particularly in regards to my assertions that Mr Wheeler's claims are in fact spurious", he saw no reason why he should attend the scheduled medical assessment with Dr Mayne on the following Monday 16 August 2010. Mr Byatt responded by email that day expressing concern with this position, advised that continued payment of administrative leave was dependent on his continued co-operation, and sought confirmation from him that the appointment would be kept (Exhibit 7-15). 60On 13 August 2010 Mr Kyriakou advised Mr Byatt by email that he would not be attending the scheduled appointment with Dr Mayne and that he was "in the process of completing a full report and the reasons contained therein will become abundantly clear why I will not be attending. Upon completion of this report, I will forward you a copy forthwith" (Exhibit 7-16). 61On 13 August 2010, Mr Kyriakou was formally advised of his "Notice of Summary Suspension" under Clause 29 of the Transport Administration Staff Regulation (Exhibit 7-17) . The Notice advised that he could appeal the suspension within 21 days. The reason for suspension was given as: Your failure to comply with an instruction to attend a medical appointment on Monday 16 August 2010 to determine your fitness for duty as a Bus Operator. 62On 17 August 2010 Mr Kyriakou sent a letter to Mr Byatt advising that he considered that the Notice of Summary Suspension was issued in violation of the Protected Disclosures Act 1994 (Exhibit 13-29). He sent a further letter to Mr Byatt on the 18 August 2010 concerning his letter of 17 August, his suspension, his personal circumstances and reiterating the history of his issues with STA (Exhibit 13-30). 63Mr Byatt appointed Ms Selina Hatcher, Depot Manager Burwood, as the Investigating Officer in relation to Mr Kyriakou's suspension and requested that Mr Jamie Sinclair, General Manager Southern Region, be the nominated officer to review Ms Hatcher's findings and determine any appropriate penalty. 64On 19 August 2010, Ms Hatcher wrote to Mr Kyriakou (Exhibit 13-30), advised him that she had been appointed as the Investigating Officer as a consequence of his notice of suspension, and invited him to respond within 7 days to the attached Form E1 which detailed the following : Charge 1 You breached Sections 4.4, 4.4i and 4.18 of the State Transit Code of Conduct when you failed to follow a direction to attend a medical appointment scheduled for 16 August 2010 to assess your fitness for employment. Particulars of Charge 1 (1)By letter dated 10 August 2010, you were directed to attend a medical appointment on 16 August 2010 with Dr Mayne, a specialist nominated by your doctor. This direction was reinforced in the email from Martin Byatt on 12 August 2010. (2)Further, as indicated in the letter dated 10 August 2010, and the email from Martin Byatt on 12 August 2010, you were paid administrative leave on the basis you would comply with the direction to attend the medical appointment. The letter dated 10 August 2010 also outlined discipline action may be taken against you if you did not comply with the direction. (3)By email dated 13 August 2010, to Martin Byatt, you outlined you did not intend to comply with this direction. (4)On 16 of August, you did not attend the scheduled medical appointment. 65On 19 August 2010 Mr Kyriakou sent an email to Ms Phillips attaching the two reports he had forwarded to Mr Byatt (on 17 and 18 August) together with the Notices he had received as set out above (Exhibit 2-25). 66On 20 August 2010 Ms Phillips responded to Mr Kyriakou, on Mr Byatt's behalf, and indicated that he had already been advised that his complaints were being investigated and he would be advised as to the outcome; the complaints were being managed under STA's Grievance Resolution Procedure; the Protected Disclosures Act did not provide for protection to avoid disciplinary action; referred to earlier correspondence on the requirement to attend a medical examination; the basis of payment for administrative leave; the reason for his suspension and his right to appeal that decision (Exhibit 2-26). 67By letter of 9 September 2010 Mr Kyriakou was provided with an opportunity to attend a discipline inquiry with Ms Hatcher (Exhibit 5-D). 68Mr Kyriakou sought, and was granted by Ms Hatcher, 5 extensions of time in which to respond to the Form E1 (Exhibit 5-39). 69By letter of 21 October 2010 to Ms Hatcher, Mr Kyriakou provided a lengthy written response to the Form E1 (Exhibit 5-41). 70STA's Workforce Change, Culture and Equity Unit investigated the 37 allegations made by Mr Kyriakou against Managers and other employees as set out in his three reports. During the course of the investigation the following persons were interviewed (Exhibit 2-27): Ken Wheeler, Depot Manager Randwick, Tarek Sabih, Staff Manager Randwick, Steven Gearie, Duty Manager Randwick, Heather Brown, Staff Supervisor Randwick, Phil Hope, Duty officer Randwick, Tom Melia, Bus Operator Randwick, Bruce Eddy, Bus Operator Randwick. 71By letter of 26 October 2010 Ms Phillips advised Mr Kyriakou that the outcome of the investigation was that his allegations were not substantiated. He was also provided with a copy of the 136 page 'Fact Finding Investigation Report', together with the attachments thereto (Exhibit 2-27). 72Ms Hatcher conducted an investigation into the allegations contained in the Form E1 issued to Mr Kyriakou on 19 August and provided a detailed 17 page 'Investigation Report' to Mr Sinclair on 11 November 2010. After setting out the Background, Methodology Applied, Analysis of Evidence and Finding, she found that the Charge against Mr Kyriakou as set out in the Form E1 was "Proven" and that Mr Kyriakou had not presented any mitigating circumstances that would warrant such charge not be proven. On 17 November 2010 Mr Sinclair determined that termination of Mr Kyriakou's employment was appropriate in the circumstances (Exhibit 5-E). 73Mr Sinclair contacted Mr Kyriakou by telephone to invite him to a meeting to discuss the outcome of Ms Hatcher's investigation and on Mr Kyriakou's request advised him verbally of the outcome; that his employment had been terminated, effective that day, as a result of the investigation. On the 18 November 2010 Ms Hatcher forwarded to Mr Kyriakou a Notice of Punishment advising of his dismissal. (Exhibit 5-1). 74On 29 November 2010 Mr Kyriakou sent a 14 page letter (with 17 attachments) to Transport NSW concerning the failure of STA to notify the Director General of an alleged serious medical condition of a Bus Operator in accordance with Regulation 24, the events leading to his dismissal and his allegations of corruption contained in the reports that he had made to STA (Exhibit 13-38). 75On 22 December 2010 the Acting Director-General, Transport NSW, wrote to Mr Kyriakou advised him that the matters raised related to the State Transit Authority not Transport NSW, and that he had forwarded a copy of his letter to the Independent Commission Against Corruption (Exhibit 13- 40). 76Regulation 24 of the Passenger Transport Regulations 2007 relevantly provides as follows (Exhibit 9): 24. Operators to notify detrimental changes in driver's medical condition If the operator of a public passenger service becomes aware of any apparent change in the physical or mental condition of a driver of a public passenger vehicle operated by the operator that may detrimentally affect the driver's ability to drive public passenger vehicles safely, the operator must furnish the Director-General with written details of the apparent change within 48 hours after becoming aware of it. Issue(s) 77Mr Kyriakou has challenged the basis of his suspension, the findings of the investigation, and the decision of STA to both suspend and dismiss him. Respondent's Case 78The STA presented its case first in accordance with s.16(1) of the Transport Appeals Board Act 2005 79The Board was referred to relevant extracts of STA's Code of Conduct , at sections 4.4, 4.4i, and 4.18 concerning "maintaining an appropriate professional standard of behaviour" and compliance with "lawful and reasonable instructions from your supervisor or manager". Mr Kyriakou had been issued with a copy of the Code of Conduct . 80In summary STA submitted that by not attending the medical appointment on the 16 August 2010, as directed by STA, Mr Kyriakou failed to obey a reasonable and lawful instruction and accordingly had failed to maintain an appropriate professional standard of behaviour and therefore breached the Code of Conduc t. 81It was submitted that it was a long held principle that an implied term of a contract of employment requires an employee to obey a lawful and reasonable instruction or direction of the employer see Adami v Maison De Luxe Limited (1924) 35 CLR 143 and Izdes v L G Bennett & Co Pty Limited t/as Alba Industries (1995) 61 IR 439. 82STA had Occupational Health and Safety obligations towards its employees. STA also had a Duty of Care and may be vicariously liable for actions of its employees to other employees, the travelling public, other road users and members of the public. Accordingly, it was appropriate that STA should adopt practices to comply with its obligations with respect to Occupational Health and Safety and any Duty of Care. Requiring an employee to attend a medical examination to assess their fitness was such a practice that may be adopted. Further, it was in the public interest that STA would adopt such a practice. Driving a Public Passenger Vehicle, in service, had the potential to greatly impact on the health and safety of the travelling public, and other road users. 83It was also an established principle that it was reasonable to direct an employee to attend a medical examination to determine whether the employee was fit to perform duties could do so safely, see Thompson v IGT (Australia) Pty Limited [2008] FCA 994 and Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395. 84STA had concerns about Mr Kyriakou's fitness for his duties, and accordingly was not prepared to enable him to operate a bus in service until clearance to perform his duties had been obtained. STA's requirement for Mr Kyriakou to attend a medical examination was based on genuine concerns having regard to the complaints of other employees, and his conduct. Further there was no evidence to support his claim that STA required such attendance in an effort to target him or pay him back for claims he had made about STA personnel. 85Mr Wheeler's evidence outlined his reasons for requiring Mr Kyriakou to attend a Medical Assessment and that it was not in retaliation for the complaints he had made. The reasons were outlined to Mr Kyriakou and included a pattern of behaviour towards his colleagues that was unacceptable. 86Mr Wheeler also outlined in his evidence that when he sent the email to Mr Kyriakou (24 May 2010) saying that he did not want to get into an email war with him, that was in response to his continued request for paid annual leave, and not in response to his allegations. 87STA routinely responded to Mr Kyriakou's voluminous correspondence and provided him with information at his requests/demands. STA personnel also met with him on a number of occasions to discuss his concerns/allegations. This was confirmed by the evidence of Ms Phillips, Mr Byatt and Ms Hatcher. 88The evidence of Mr Fabian and Ms Coleman confirmed that they made a report to management and that management based its subsequent reports on what the employee said. They both expressed that Mr Kyriakou did not appear threatening, was distressed and outlined that he could unintentionally cause harm to passengers in some way as he was in a state of stress. 89Mr Kyriakou's complaints/allegations were investigated and found to have no substance. This was confirmed by the evidence of Ms Phillips who also confirmed that she met with him and advised him as to the status of his initial complaints. The fact that he made such complaints, did not afford him with a cloak of immunity to refuse directions from his employer. He was given a number of chances to comply with STA directions. 90Mr Kyriakou was aware that he could be suspended without pay and that he could be terminated if he continued to fail to follow the directions, yet he continued to ignore management directions. The fact that Mr Kyriakou did not agree with the direction issued did not abrogate him from having to follow the directions of his employer. 91Accordingly, it was appropriate to suspend him without pay. It was also appropriate to terminate his employment. 92STA at all times provided Mr Kyriakou an opportunity to respond to the allegations against him in the Form E1; provided him with the opportunity to attend a discipline inquiry and advised him of the dismissal, and the reasons for the dismissal. Ms Hatcher's evidence confirmed the steps involved in her investigation and that Mr Kyriakou had received procedural fairness. Any delay in her report was caused by Mr Kyriakou's repeated requests for extensions of time for his response. 93Mr Byatt's evidence outlined his role in reconsidering Mr Wheeler's decision to require Mr Kyriakou to attend the Doctor's appointment and that in his view there was sufficient basis for such direction. Many of the issues Mr Kyriakou had raised in his initial complaint had been looked into previously (e.g. the clocks). Mr Byatt's letter was based on the advice he had received. He never said that all Mr Kyriakou's letters were unfounded, and stated that he had recently raised a further issue. It was reasonable for Mr Byatt to outline to the Doctor that Mr Kyriakou had raised issues with STA's Equity and Diversity Section that were unfounded because that was what he was advised and that was their concern that they wanted to outline to the Doctor. The issues raised were not viewed as a quasi- investigation, they were just outlining concerns they had for the Doctor's notification. 94Mr Byatt reaffirmed STA's interpretation of Regulation 24 and said that if Mr Kyriakou had attended a Doctor and there was a condition that impacted on his ability to drive, then STA would have reported him to Transport NSW. Mr Sabih also outlined that this was normal practice and this was also confirmed by Ms Hatcher's evidence. 95Mr Sabih's evidence outlined Mr Kyriakou's absence history and that he had been given, to some extent, some slack over his career history and not disciplined for every occasion on which he was either absent or late. Mr Sabih confirmed his view that the absence record was substantial. He also outlined that he preferred to discuss issues with Bus Operators rather than debating issues by email. Mr Sabih also confirmed that the request made by Mr Kyriakou to convert sick leave to annual leave was not made due to his carer's responsibilities, but so that he could prepare his case against the STA. 96Mr Kyriakou's evidence was referred to and it was pointed out that he claimed he was in the dire straits because of the suspension and the termination and accordingly borrowed money to go overseas to borrow money from his Thai girlfriend's family. There was no visible evidence to suggest he informed his employer of his intention to travel overseas before he did so and in fact he outlined that he needed an extension to enable him to meet with his barrister and there was no mention of going overseas at this stage. 97Mr Kyriakou took approximately 2 1/2 months to respond to one charge despite the fact he was not working, yet criticised STA for taking 3 or 4 months to investigate his extensive complaints. 98Mr Kyriakou was paid administratively on the basis that he continued to comply with the directions to attend the Medical Assessment yet he routinely fail to comply with such directions and at no time was it clear to his employer that he would not be attending a Medical Assessment unless he received a response to his complaints. 99Mr Kyriakou also outlined that it would be appropriate for Transport NSW to send him to a medical examination, but not STA, and yet this was his employer, responsible for his and other employees Occupational Health and Safety. It was submitted that such a proposition was absurd and showed Mr Kyriakou's disdain towards the employment relationship. 100Mr Kyriakou confirmed that he was made aware of the allegation against him (late at work on 7 May) and following being made aware of this allegation and the fact of his lateness being about to be brought up with him, it was only then that he raised his allegations and that so happened to be a period of one week before his TAB proceedings. 101It was submitted that Mr Kyriakou had actually lodged his complaint as a protective shield to protect him from the allegation he knew was coming his way. 102STA submitted that Mr Kyriakou's assertion that Mr Wheeler fabricated the events prompting the referral for the Medical Assessment was simply not the case. There was sufficient evidence which clearly substantiated that reports were received by colleagues, and Mr Kyriakou himself, that were the basis for STA's concerns. 103It was submitted that Mr Kyriakou's conduct warranted instant dismissal. Should this not be accepted, then termination was appropriate having regard to his history. 104It was submitted that the direction issued to Mr Kyriakou was reasonable in the circumstances, clearly STA had concerns about his behaviour which were based on documents actually received and not those that were fabricated. Mr Kyriakou's conduct in continuing to fail to follow a lawful and reasonable direction without reasonable explanation or contrition, led to the inevitable conclusion that he no longer considered himself bound to the terms of his employment contract and it was therefore open to STA to terminate his employment. 105It was also submitted that Mr Kyriakou appeared to accept limited responsibility/accountability for his actions. When confronted with his own actions, he appeared to make claims about the actions of others rather than respond to his actions. He appeared to be unwilling or unable to accept a version other than his own. While he appeared reasonable to somebody listening to his complaints, as soon as that person did not agree with his complaints/claims then he added that person to the list of his complainants and further complained to the next person. 106STA also submitted that although it had not relied on this as a reason for the dismissal, the way in which Mr Kyriakou had treated his employer was inappropriate in that he had been enticing other employees to make claims against STA, possibly for his own benefit, so as to substantiate his own claims against his employer. 107Any delay in proceedings has been largely a result of Mr Kyriakou. Accordingly, STA should not be prejudiced by any delay in the proceedings initiated by him. 108In conclusion STA submitted that the Board should not alter the decision to dismiss the Mr Kyriakou. However, should the Board determine to alter the decision to dismiss Mr Kyriakou then reinstatement would not be an appropriate remedy as the relationship between the parties had clearly broken down to such an extent that reinstatement was not practicable. Further, outstanding allegations against Mr Kyriakou also remained. Any order that Mr Kyriakou be reinstated subject to attending a medical examination, with no other penalty, would fail to issue a punishment for his ongoing refusal to follow the directions of his employer. 109Should the Board make an order for monetary compensation then any such amount should be reduced by any monies received in alternative employment and as a result of any delay in proceedings that were at the Mr Kyriakou's initiative. Appellant's case 110Mr Kyriakou made oral submissions in addition to the written submissions as filed (Exhibit 14) and in doing so traversed much of the material that is set out in the Background and Chronology above. 111Mr Kyriakou submitted that on 24 May 2010 he sent an email with a number of complaints to his Depot Manager, Mr Wheeler, in which he outlined issues of corrupt activity within the Randwick Bus Depot involving the Union Delegate and some Managers. At the time he believed he was complying with the guidelines contained in State Transit "Employee Folder" part of which states "STA employees are encouraged to report conduct which they consider to be "corrupt". On that same day he received a response to his email of complaint from Mr Wheeler stating "I have no intention of entering into an email war with you nor will I respond to your scurrilous accusations of harassment and discrimination". He then forwarded his letter of complaint to Ms Phillips but did not receive any response from her regarding that letter. 112On 2 June 2010 he submitted a letter of complaint to the Manager of Equity and Diversity, Mr Dunne, seeking some intervention in the light of the hostilities he faced at the Randwick Depot. He received a phone call from Mr Dunne as a result, but once again it appeared that his issues were not entirely important for anyone up to that point to take note. 113He submitted that on the morning of 30 June 2010 he informed Ms Phillips that in relation to the meeting scheduled at the Depot later that afternoon that he had just returned from Bankstown Hospital after his mother had collapsed at home but nevertheless indicated that he might be able to attend the meeting at 1.30 and perhaps visit his mother either before or after this meeting. He submitted that given his preoccupation with his mother's ill health that day he did not attend the meeting. He subsequently received a phone call from Mr Wheeler on 2 July directing him not to attend work any longer as he had essentially been "barred from work." 114Mr Kyriakou referred to his lengthy Part 2 Report into allegations of corruption and impropriety at the Depot dated 12 July 2010 which he submitted to Mr Wheeler, and in that same report he refuted each of the allegations Mr Wheeler had levelled towards him in his 5 July 2010 letter to the Consultant Psychiatrist. He submitted that at that time Mr Wheeler was the officer in charge of his case and making decisions against him and at the time he had earlier launched a number of serious complaints about him and his administration. Mr Kyriakou believed this was a significant conflict of interest and that Mr Wheeler should have forthwith excused himself from this inquiry and not have had any further involvement with decisions against him in the light of his complaints against Mr Wheeler and his administration. 115Mr Kyriakou submitted that Mr Wheeler's decision to expel him from work, draft, and send, misleading letters and reports and organise appointments with psychiatrists could only be seen as retaliatory on his part. Mr Wheeler failed to act on his numerous letters and emails of complaints and he failed to refer his complaints for investigation as stipulated in the Employee Folder. Further, he failed to adhere to the regulations and guidelines under the Protected Disclosures Act 1994 which specifically outlines policies to be followed when an employee raises corruption issues and complaints to his superiors in the workplace. Instead Mr Wheeler immediately labelled his complaints as being "scurrilous" from the outset and focused almost entirely on targeting his alleged health instead of addressing the real issues. 116Mr Kyriakou submitted that it was not necessary to ask for protection under the Protected Disclosures Act . The Employee Handbook clearly stated, under definition of disclosure, that any conduct perceived by an employee is to be regarded as a protected disclosure provided it was "not frivolous, vexatious or in response to a disciplinary proceeding". There were no outstanding disciplinary issues, there was only a 'Please Explain' about his late arrival to work because of the lockout of his keys. 117Mr Kyriakou submitted that as a result he felt that Mr Wheeler did not have reasonable grounds to refer him to a medical assessment and that there was what was tantamount to threats and extortion of sorts regarding his pay, and concerning his attendance at a medical assessment. As a result he advised Mr Wheeler, the necessary 24 hours before the appointment, that he would not be attending the scheduled assessment on the 13 July 2010. This was in part because he believed at the time that his employer did not have reasonably justified reasons to prefer him to a doctor. His own doctor said it was beyond his expertise and that he doubted that he was going to get a clearance based on the information contained in their reports. 118Mr Kyriakou submitted that it should also be noted that on the 4 June 2010 he was medically assessed and cleared to drive a bus by a qualified Medical Practitioner following his application for his Driver Authority Renewal which had been sent to him by Transport NSW. Further the guidelines for General Practitioners to carry out this assessment were quite clear under the "Assessment to Drive Commercial Vehicles" (2003) which had been accepted and authorised by Transport NSW. 119Mr Kyriakou also submitted that Mr Wheeler was aware of this recent medical assessment renewal because he had personally authorised and made arrangements for him to pick up the $70 rebate for the renewal of his Driver's Authority. 120Mr Kyriakou also submitted that Mr Wheeler had a strict legal duty to notify the Director General of Transport NSW within 48 hours of becoming aware of his alleged psychiatric disorder. Transport NSW had the legal authority to compel him, upon credible information, for a medical assessment with a Psychiatrist. 121Mr Kyriakou submitted that the fact that Mr Wheeler failed to notify Transport NSW about his alleged psychotic behaviour was a significant breach of his duty of care, not only to him, but also to members of the public. Further, Mr Wheeler's motives could be questioned particularly when he came into information about his alleged confession of "killing of people" at Head Office 1 June 2010 and that if there was any substance to this allegation then Mr Wheeler had committed a number of serious breaches under an array of accident regulations namely the OH&S Act and Transport Administration Act, to name a few. 122It was also submitted that if Mr Wheeler was to be believed then in essence he allowed one of his drivers to continue driving a bus on the public streets with the knowledge that this driver had confessed to wanting to hurt members of the public. This was not only known to Mr Wheeler but also Mr Byatt as mentioned this in their respective reports to the Psychiatrists. What they failed to say to these doctors was that they allowed a dangerous psychopath who had earlier allegedly stated that he wanted to "kill members of the public with his bus", to drive a public bus onto the public streets from 1 June 2010 until 5 July 2010. 123Mr Kyriakou also submitted that in relation to complaints relied on that none of those persons referred to had actually made a complaint about him. 124Mr Kyriakou submitted that from the time when Mr Byatt severed his pay on 19 July 2010 as a result of his failure to attend the medical assessment up until his suspension without pay on 13 August 2010, that he was the officer in charge of his case and that Mr Byatt and Ms Phillips, by virtue of their positions at STA were nominated disclosure officers and that as senior managers they both systematically failed to adhere to strict rules and regulations regarding the Protected Disclosures Act . Mr Kyriakou had lodged his corruption complaints before any disciplinary proceedings had even been commenced and according to the Employee Folder Mr Byatt and Ms Phillips had a legal duty to ensure that his complaints were immediately addressed in a proper format in accordance with STA's rules and regulations. 125Mr Kyriakou submitted that the only urgent issue which was acted upon expeditiously it seemed was the need to force him into a medical assessment in what later turned into an obsession with those managers. 126Mr Kyriakou submitted that during the meeting of 27 July 2010, Ms Phillips put to him that she had the legal authority to direct him to see a Psychiatrist by virtue of the STA Absence Management Program. At no stage was he placed on any such program and this was evidenced by the terms of the "Attendance Review Letter" letter of 26 October 2009 where it stated that "if your attendance does not improve you will then be placed on an Absence Management Program". 127Mr Kyriakou submitted that despite the claims of STA to the contrary his attendance improved by virtue of the fact that he was never called into the office by managers until Mr Wheeler alleged that his pattern of behaviour was so dangerous that he was in real need of psychiatric help, this was after he had launched his corruption complaints against him. Mr Kyriakou submitted that his absences from work were primarily, and almost entirely, as a result of him being required to care for his ill mother. 128Mr Kyriakou submitted that in Mr Byatt's report of 29 July 2010 to Psychiatrist Dr Mayne it was stated that his complaints were investigated and found to have no merit, yet it was not until 26 October 2010 when Ms Phillips finally completed her one-sided investigation into his complaints and declared that none of them had any merit whatsoever. Mr Byatt had deliberately pre-empted the outcome of this investigation by forwarding information to a psychiatrist with the knowledge that the investigation into his complaints had not been finalised. Mr Wheeler also deliberately pre-empted the outcome of the investigation into his complaints by stating to Dr Akkerman (report of 7 July 2010) that his complaints had been investigated and found to have no merit. 129Mr Kyriakou submitted that when consideration was given to the conflict of interest surrounding Mr Wheeler's position where he was making decisions against him after he had launched his corruption complaints against him and his administration, coupled with Mr Byatt failing to adhere to STA's strict guidelines regarding the proper complaint handling protocols of the Protected Disclosure Act, the conclusion was that no guidelines were ever followed. 130Mr Kyriakou submitted that the allegation that on 1 June 2010 he had allegedly confessed to human resources staff that he wanted to kill people with his bus, that if this was true, then why didn't Mr Wheeler and Mr Byatt immediately remove him from the road and notify the Director General Transport NSW who had the legal power to suspend his Driver Authority right then and there? He was allowed to continue to roam the streets of Sydney in a government bus for over a month until Mr Wheeler directed him to stay at home. The integrity of both Mr Wheeler and Mr Byatt was reduced when it was observed that they had deliberately engaged in attempting to influence a psychiatrist's opinion prematurely by supplying information which was at best untrue, and an outright lie at worst. Each of their reports, together with their actions and failures regarding this matter, were both suspect and unreliable and should be treated with extreme caution. 131Mr Kyriakou submitted that the statements made by Julie Coleman and Laurie Fabian concerning what he had allegedly said on 1 June 2010 did not agree with each other and that Mr Fabian stated he used the word "kill" three times, yet Ms Coleman did not refer to use of this word. They were all standing inches away from each other in a triangular formation discussing his concerns at the time. Mr Fabian also stated that "at no time during my conversation with Mr Kyriakou did I feel threatened or uncomfortable," yet he then remarkably stated "he did present himself as someone who had the intention to threaten physical harm upon myself or Julie Coleman or indeed himself". 132Mr Kyriakou submitted that as a result of not following Mr Byatt's unreasonable and unlawful directions to attend this medical assessment he was subsequently suspended without pay on 13 August 2010 and as a result he sent a number of letters and reports to Ms Phillips and Mr Byatt stating amongst other things that this would ruin he and his family financially. He demonstrated in his report that he was a carer for his mother and having his wages cut for nothing other than failing to attend an unjustified, completely unreasonable and unlawful medical assessment would bring about severe financial consequences to his family as a whole Mr Kyriakou maintained at STA's obsession and relentless pursuit of him to ensure that he attended this medical assessment was only after he lodged a number of serious allegations of corruption against some Managers and staff at Randwick. 133Mr Kyriakou submitted that after he received further disciplinary charges in the form of an E1 for failing to attend the medical assessment on 16 August 2010, that in order to defend these charges he was left with no other option but to travel overseas and seek funds from his overseas girlfriend. He was also faced with the option of either selling or hocking his car (undertaking the latter) so he could raise funds to defend, not only the disciplinary charges, but to provide some financial assistance towards his mother who up until that stage relied almost entirely on his wages. He did not consider that he had to advise STA of his movements while he was on unpaid suspension. 134Mr Kyriakou submitted that since his dismissal from the STA on 17 November 2010 he had not had any employment and had been forced to sell a number of personal items on eBay, including a number of his mother's personal belongings. He had calculated that his total monetary loss (including shift allowances, lost opportunities for public holiday shifts and overtime etc.,) since he was suspended in August 2010 amounted to approximately $53,700. 135Mr Kyriakou submitted that STA failed to properly investigate his complaints of corruption made on 24 May, 7 June and 12 July 2010 and in doing so Mr Wheeler went one step further and declared that his complaints were nothing more than scurrilous. This comment was made in the absence of any preliminary investigation and just hours after Mr Wheeler had received his complaints and was indicative of his failure to address a great deal of important issues in this case. Further, it was submitted that one only had to observe the almost 5 months of deliberate delays investigating his complaints in order to have him declared as a person so psychiatrically dangerous so that he could be labelled a person whose word should never be accepted. 136Mr Kyriakou submitted that despite STA's claim that there were a number of meetings to discuss his concerns, in fact there were only 2 lengthy meeting and a five-minute discussion. The first meeting was on 27 July 2010, yet remarkably he was given determinations regarding some of his complaints contained in Part 1 the day after this meeting took place. He recalled that at this meeting both Ms Phillips and Mr Byatt were vigorously attempting to discredit the email he had sent to Ms Phillips on the morning of 30 June immediately following his return home from Bankstown Hospital and they tried very hard to manipulate the words in his email so that it could be read that he was in fact confirming his definite attendance at this meeting. A good portion of the time was spent discussing the grammar and context of this particular email. It was made clear to him several times that the meeting at Randwick on 30 June was far superior and more important than his mother's ill-health and sudden hospitalisation. According to his contemporaneous notes corruption issues were not even addressed. The second meeting took place at Head Office on 4 August 2010 and he delivered a further letter of complaint to Ms Phillips regarding his complaints and the unnecessary delay and inactions during the investigation. The 5 minute meeting was at Head Office with Ms Coleman and Mr Fabian and not much was achieved at this meeting other than that they would get back to him with an appointment with Ms Phillips. 137Mr Kyriakou submitted that STA failed to address corruption taking place between management and the Union Executive (the Union Delegate), in that he was allowed to live and sleep at the depot (to save on petrol costs by not having to drive home) with the knowledge of the Managers and in return he would support management over his members in any policy or guidelines the Managers at Randwick drafted. Mr Kyriakou submitted a perfect example of this was when the Staff Manager drafted Internal Memos directing drivers that they were not allowed to claim any overtime when submitting accident or incident reports. This was in direct conflict with the Drivers' Award which clearly stated that every driver should be paid a minimum of 15 minutes overtime for any report submitted (except disciplinary reports). Yet the Union Executive, who was well aware that this policy was quite illegal, allowed it to continue and that resulted in drivers being deprived of their legitimate rights and pay conditions. 138Mr Kyriakou submitted that both Mr Byatt and Ms Phillips were STA's frontline Nominated Disclosure Officers (according to the Employee Folder) and both had a legal duty of care to follow strict guidelines when corruption allegations were submitted and lodged with them and that they failed to properly investigate his complaints in complete defiance of the Protected Disclosure Act 1994 . This was a significant breach on its own. 139Mr Kyriakou submitted that Ms Phillips failed to obtain a statement or interview him regarding her enquiry for the purpose of clarifying any of the multitude of issues regarding his complaints. This was again indicative of just how biased her investigation really was. Further, she closed and ended her investigation prematurely whilst a staff member that had been implicated in his complaints was away on annual leave and was not interviewed. 140Mr Kyriakou submitted that the Depot Manager Mr Wheeler, Acting Human Resources Manager Ms Phillips and General Manager East Region Mr Byatt failed in their duty of care for him by not transferring him out of a hostile working environment in light of his allegations implicating a number of Managers at Randwick Depot some of whom engaged in the taking and laying of bets with other drivers on the premises as to how long it would be until he was dismissed from the STA. 141Mr Kyriakou submitted that at no stage was he offered counselling by STA, or help or support, when it was apparent from his letters of complaint that he was working in a hostile environment and suffering stress. Further if he had been transferred out of Randwick when he had requested such transfer, and his concerns addressed, then there would have been no need for any referral to a medical assessment. 142Mr Kyriakou further submitted that another Manager engaged in covert recruitment of drivers for the purposes of spying on other drivers in order to obtain information, then rewarding those drivers who collected information with unlimited taxpayer funds in the form of free extra overtime on their work journals. The information collected regardless of how minor it was, would be manipulated and exaggerated in order to justify an officer's report, which in turn would later be generated into disciplinary charges. 143Mr Kyriakou submitted that STA failed to notify Transport NSW about his alleged psychiatric condition. Regulation 24 was clear and very specific and stated that STA or other operators shall notify the Director General of Transport within 48 hours of becoming of any physical or mental condition affecting any driver. He was the one who ultimately notified the Director General about his alleged health and corruption complaints in his letter of 29 November 2010 where he lodged a formal complaint with Transport NSW and the Director General did not focus or target his alleged complaints but rather received his information, considered it, and referred his complaints to the Independent Commission Against Corruption. They did not act on any of the negative information concerning him, and his Driver Authority card was still active (as at the time of his written submissions). 144Mr Kyriakou refuted the claims made by STA that he had enticed other employees into making claims against STA to substantiate his claims, rather he had intervened through an email with one former employee to convince him to voice his frustration in writing and through proper channels rather than face the prospect of jail for the rest of his life (for what he had threatened to do). 145In conclusion Mr Kyriakou submitted that there was a lot of disquiet at Randwick Bus Depot, there was no consistency at the Depot and there were rules for some and none for others. The Evidence 146STA, the respondent, called the following witnesses to give oral evidence in addition to the witness statements filed: Ms Barbara Phillips, (Exhibits 2 and 3), Ms Selina Hatcher, (Exhibit 5), Mr Martin Byatt, (Exhibits 7 & 8), Mr Tarek Sabih, (Exhibits 11 & 12). 147Mr Kyriakou, the appellant, gave oral evidence in addition to the witness statement as filed (Exhibit 13 and certain paragraphs of Exhibit 14 - Written Submissions). 148By decision issued on 28 January 2011, the Board granted leave to Mr Kyriakou to issue Summonses to Give Evidence on the following persons, (leave being required in accordance with the provisions of the Uniform Civil Procedure Rules 2005 ). Those persons duly attended and gave oral evidence: Mr Ken Wheeler, Ms Julie Coleman, and Mr Laurie Fabian. 149The evidence of Ms Phillips, Ms Hatcher and Mr Byatt substantially dealt with the chronology of the events leading up to Mr Kyriakou's dismissal as set out in the Background and Chronology above. However there was extensive cross-examination of Mr Byatt and Mr Sabih in particular, and also Ms Phillips and Ms Hatcher. There was also extensive examination-in-chief of Mr Wheeler by Mr Kyriakou. 150It was the evidence of Mr Wheeler, Mr Byatt and Ms Hatcher that in relation to R.24 of the Passenger Transport Regulations it was both STA's interpretation, and practice, that before a Bus Operator was referred to Transport NSW as a consequence of concerns about that Operator's fitness to drive, they would be sent for a medical assessment. Mr Wheeler indicated that in the case of a physical condition/illness a Bus Operator would usually be sent to a local medical clinic for assessment 151Ms Phillips acknowledged that in her then role of Acting General Manager of Human Resources she was also regarded as a Nominated Disclosure Officer. She said that Mr Kyriakou was never given protected disclosure for his complaints, which were dealt with under STA's Grievance Policy and investigated as part of their normal investigative processes. She did not consider that the complaints and allegations he made raised issues of corrupt conduct and went onto explain why she held that opinion which was that the complaints were about behaviour in the workplace and Mr Kyriakou's perception of how he was treated and they were dealt with under the Grievance Policy. 152She also said that the whole purpose of protected disclosure was to remain anonymous. If someone made a protected disclosure they normally asked for protected disclosure. Mr Kyriakou had not asked for protected disclosure. By the time he had raised this issue the whole process was underway and witnesses had commenced being interviewed and Mr Kyriakou had sent a number of documents to different people. Even if it had been a protected disclosure STA would still have investigated it in the same way, the only difference being anonymity. 153Ms Phillips said that she had read every page of the documents which Mr Kyriakou provided to her and made an assessment on how the matters would be investigated. She had looked into the issues Mr Kyriakou raised in his Part 1 Report (24 May 2010) and provided responses to him in the meeting with him on the 27 July 2010. She had not replied to the email on the day as it was a report that was sent to Mr Wheeler and only copied to her. If she had assessed any of the complaints he made as corrupt conduct then she would have followed the Policy, however she did not assess any of the complaints as corrupt conduct. She maintained that her assessment was fair and impartial. 154She said that the subsequent issues he raised (as well as the issues from 24 May) were referred to STA's Workforce Culture Change and Equity Unit. All the allegations made in his 3 reports, 37 in total, were investigated. Some of the allegations were actually statements but were called allegations as explained in the comprehensive Executive Report. 155Ms Phillips agreed that in the course of the investigation by Tracy Morton from the Workplace Change, Culture and Equity Unit, Mr Kyriakou was not interviewed. He had provided them with voluminous documents of complaints and they took them at face value. Ms Phillips said she had two meetings with Mr Kyriakou during the whole process and was in contact with him weekly, or twice weekly, to discuss issues by email. 156Ms Phillips said that Mr Kyriakou had made allegations and the first thing to do was to conduct fact finding. If there were documents to prove it they could be obtained from the Depot, such as timesheets. It was then a matter of looking at the allegations against the other people, the respondents, who then needed to present their side of the story. They did not need further clarification from Mr Kyriakou as he had been spoken to a number of times. 157In relation to Mr Kyriakou's request for a transfer to Waverley Ms Phillips said that she did raise that with Mr Wheeler, the Depot Manager, who did not agree to the transfer because he saw it as a way of Mr Kyriakou avoiding any pending disciplinary action. That was in line with STA's Transfer and Voluntary Regression Policy at 55.04, which says that if there are investigations or disciplinary matters that are ongoing then an employee cannot transfer. 158However when the matter was escalated to Mr Byatt and they both met with Mr Kyriakou on 27 July, Mr Byatt agreed that they would temporarily transfer Mr Kyriakou to Waverley. This was referred to in the 26 October Investigative Report. 159Ms Phillips said that her email response to Mr Kyriakou of 2 July concerning the requirement for him to be medically assessed was for all the reasons she had stated, which were cumulative, including his personal issues. 160She acknowledged that Mr Kyriakou had sent an email (about the 30 June, 1.30pm meeting) early on that morning following his mother's hospitalisation, but said that when they read the email it indicated that he wanted to attend the meeting and would go to the hospital after the meeting. But he didn't notify and failed to turn up. He did not ring and ask for the meeting to be stood over to another time because his mother was sick, and if he had contacted them they would have considered that. 161Ms Phillips indicated that STA had an Employee Assistance Program available to all employees and their families to help them through times when they needed some support and that program was available to Mr Kyriakou. 162Mr Wheeler acknowledged that as part of his duties he ensured that STA's policies and procedures were followed correctly and he always tried to the best of his ability to be consistent and impartial in his dealings concerning decisions of policy. He also had a responsibility to make sure that staff that signed on for duty were in a fit and proper state to do their duties and operate a bus vehicle. Periodic checks were carried out to make sure that drivers had a current Driver's Licence and a current MOT accreditation card. 163Mr Wheeler acknowledged that if he received a complaint of any nature from a staff member, then he would follow it up and seek evidence before deciding whether it warranted him undertaking an investigation. In relation to Mr Kyriakou's complaints, because they concerned Managers at Randwick, he referred them on as it was not appropriate for him to conduct such investigation. 164Mr Wheeler said he worked Monday to Fridays and usually arrived at work at about 8 - 8.30 am. On Monday 24 May 2010, after he had arrived at work, he logged into his emails and opened them in order of their receipt, that is, those emails that had been received in first in time were opened in that order. He opened the email from Mr Kyriakou sent by him on Saturday 22 May at 4:43 pm concerning the requirement to provide original medical certificates and emailed a response to him at 9:14 am. That was the email in which he said he did not have an intention of entering into an "email war" with Mr Kyriakou. He subsequently opened the lengthy email from Mr Kyriakou raising allegations about Managers at Randwick, but could not remember the exact time when he opened that email. The comments he made about not entering into an "email war" did not relate that lengthy email sent by Mr Kyriakou at 3.53 am earlier that day. He did not respond to that email and said that he would have referred it straight to Equity. 165Mr Wheeler denied that his subsequent decision to refer Mr Kyriakou to a psychiatrist was in retaliation for the complaints Mr Kyriakou had made against him in the 24 May email. 166Mr Wheeler said it was his understanding, based on his consultation with Human Resources (and he thought that might have been Ms Phillips), that what he put in the letter to Dr Mayne about Mr Kyriakou's claims of victimisation and harassment having been investigated and found to have no substance, was factual. (Those issues were the first complaints about the Delegate sleeping at the Depot, issue of the clocks etc.). 167Mr Wheeler said that his 5 July letter to Mr Kyriakou requiring him to attend a medical assessment was based on incidents that had happened at Randwick Depot of which he was aware. When he was writing the letter he was told that Mr Kyriakou had gone to Strawberry Hills (the STA Head Office location) and what had transpired, he was not there, and he could only go on the information he was provided. 168Mr Wheeler did not consider that he had a duty under Regulation 24 of the Passenger Transport Regulations to advise the Director General of Mr Kyriakou's substantive behaviour until he had further evidence to support a reason for notifying. Mr Wheeler said he had no evidence or medical report to suggest there was a problem, but what he had said was that Mr Kyriakou was exhibiting behaviours that seemed irrational and he wanted the comfort of knowing that somebody, a professional, had examined him to make sure that he was safe to come back to driving. 169He said that Mr Kyriakou was directed to stay at home, not only because of the issue of his fitness to drive, but also because of his fitness to come to the Depot because he had made threats, and his abuse of the staff, and on that basis he wanted to make sure there was no danger in him coming to the Depot and returning to work. 170Mr Wheeler considered that the specialist's report would normally cover whether Mr Kyuriakou was safe to drive a bus and whether he was safe enough to be at the Depot. Normally a specialist's report would say whether someone was unfit for duties but may be considered for light duties. 171Mr Wheeler said that he had previously referred Bus Operators for either a physical or psychiatric medical assessment, not on a regular basis, but if circumstances arose. 172Mr Wheeler confirmed that it was the case that if he had received medical advice that Mr Kyriakou was unfit for duties then he would have advised Transport NSW. 173He further indicated that he wasn't the one who had investigated Mr Kyriakou's complaints, that would have been the Staff Manager, Mr Sabih. The complaints were also referred to Equity and he was advised that they were being investigated. 174In relation to sending Mr Kyriakou for a medical assessment it was not one specific incident that was the reason, it was an accumulation of different things. 175Mr Wheeler confirmed that if the medical assessment had come back and said that there was nothing psychiatrically wrong with Mr Kyriakou but maybe counselling required or some other suggestion made, then he would have been treated and returned to work. 176Mr Wheeler believed that counselling had been offered to Mr Kyriakou in the past. 177Both Mr Fabian and Ms Coleman confirmed that their file notes had been written straight after Mr Kyriakou's vist to STA Head Office on 1 June 2010 and generally confirmed their respective contents. 178They both indicated that Mr Kyriakou appeared stressed and this was based on their observations of him. 179Mr Fabian clarified that when he referred to the word "kill" in his file note he took that to mean that because of the stress that he was under he would inadvertently maim or harm someone in the course of his driving. 180Ms Coleman did not think Mr Kyriakou used the word "kill" but that he did say he wouldn't be responsible for what would happen if he drove. In her view the words Mr Kyriakou used clearly inferred that he could do damage to himself or other people on the road and she interpreted that to be quite serious damage. 181Ms Hatcher said that in relation to Regulation 24, STA Policy required that a Form 633 be submitted by the Depot Manager. That was basically a medical report to the Director General advising him of an apparent change in the physical or mental condition of a public passenger operator. A Form 633 would only be submitted with a medical report. As a Depot Manager Ms Hatcher had never submitted a Form 633 without a medical report from a medical practitioner. Once a Form 633 was submitted to Transport NSW it went before a Medical Review Board and an MOT card could be suspended and/or cancelled at their discretion. 182She agreed that it would be a concern if the STA were to present any "hunch" to Transport NSW without having looked into the matter of the first. She went on to confirm that as an STA Depot Manager that if there was a concern about either the physical and mental condition of a driver she would not let them drive a passenger vehicle but would not report their medical condition to Transport NSW until a medical practitioner had provided her with a report. 183She also said that having an authority from Transport NSW did not mean that STA had to either employ a Bus Operator, or, maintain the employment of a Bus Operator, and that they also still needed an RTA licence. 184Mr Byatt has been with the STA since 1984 and has held a number of roles (including Depot Manager) before appointment to his current position in 2007. His written evidence generally dealt with the basic operational matters concerning Bus Operators and his involvement with the attempts to have Mr Kyriakou attend for a medical assessment, the disciplinary process initiated and the various emails and other relevant documentation as detailed in the Background and Chronology above. He did not himself investigate any of Mr Kyriakou's complaints. 185He deposed that requiring an employee to attend an assessment for fitness for duty was not uncommon. It was usually done where there were a potential concerns over an employee's fitness to drive due to customer or employee complaints, observations by Managers, Supervisors or Health Service Officers, or where known conditions may have the ability to impact on the employee's fitness for employment. To his knowledge requiring an employee to attend a medical assessment was largely a response to STA's OH&S obligations as well as their duty of care to that employee, other employees and members of the public. Alternatively an employee might be required to attend a fitness for duty assessment as part of an Absence Management Program. 186He deposed that after taking into consideration the Mr Kyriakou's behaviour, including some complaints about his behaviour towards other employees, as well as his reported conduct at Strawberry Hills, he determined that it was appropriate in the circumstances that Mr Kyriakou be required to gain medical clearance to perform his duties. 187Mr Byatt indicated that in the meeting with Mr Kyriakou on 27 July in the company of Ms Phillips, he informed him in his view Mr Kyriakou's allegations against Randwick management were not related to STA's request for him to attend a medical appointment and that his allegations were being investigated by the Human Resources area. He advised this as he thought this was appropriate as the allegations were levelled against one of Mr Byatt's Managers. He re-iterated that he had reviewed the circumstances and reasons why he had been required to attend for a medical examination and believe the reasons valid, that he would not be overturning the directive to get a medical clearance before he returned to his, that he would reinstate Mr Kyriakou's paid administrative leave on the basis that he agreed to cooperate with directives, including the requirement to attend for examination. Mr Kyriakou subsequently agreed and the administrative leave was reinstated. Mr Byatt then left the meeting 188Mr Byatt indicated that the obligation on the STA to report a Bus Operator to the Director General would arise generally on production of a medical certificate. He understood that the Director General would then issue a suspension of the driver's authority as a precautionary step and might also seek additional information. He did not consider that STA had breached Regulation 24 by not reporting Mr Kyriakou. 189He went on to say that - "the decision to request Mr Kyriakou to go for a medical examination was based on the fact that we had a suspicion following a pattern of certain activity that we just sought clarification that Mr Kyriakou was fit to perform duties. Now if Mr Kyriakou had attended the medical practitioner as requested and the advice back to us was that he was fit to perform full normal duties there certainly would have been no need to inform the NSW Transport and Infrastructure". If he wasn't fit to perform his duties they would have advised NSW Transport and Infrastructure in due course. Whilst he would have been involved in matters where such a report to the Director General in respect of a driver was necessary, he couldn't recall any specific incidents. He thought that this would generally be done by the Depot Manager in consultation with people from the Safety Unit. 190Mr Byatt was asked in cross examination a range of questions concerning STA's policy on Protected Disclosures, acknowledged that his position was on the list of nominated officers, indicated he was generally aware of the policy, but not word for word, but had never received a complaint from an STA employee that he considered raised the possibility of corruption that he had referred on. 191Mr Byatt indicated in relation to Mr Kyriakou's complaints that he received several pieces of correspondence over the period of time from him with allegations contained within, such matters he was aware of at the time were being dealt with by Ms Phillips and the Equity Unit. He was advised that was happening but could not recall by whom. His involvement in the matter was not to be involved in the investigation of any concerns, he was satisfied that those concerns were being appropriately investigated and addressed and that that was the case. 192Mr Byatt said that when he wrote the letter in July 2010 to Dr Koutsoullis containing information for the assessment, the claims he referred to as having been investigated and found to have no grounds of complaint, were the first round of matters raised by Mr Kyriakou. The second and final series of complaints were finalised in October 2010. He sought confirmation from certain people as to the status of the investigation because he wanted to make sure that the complaints were being investigated. He could not recall who he would have spoken to about that but said he would have liaised with people such as Ms Morton. 193Mr Byatt confirmed that all those issues had been looked into and dealt with (the delegate sleeping at the Depot etc.) 194Mr Byatt confirmed that he became involved when Mr Kyriakou failed to attend the initial medical appointment (14 July). He then sought to review the documentation surrounding the matter to date because he needed to make a determination whether to overrule the directive from the Depot Manager for him to attend a medical appointment or otherwise. He formed the view that Mr Kyriakou's complaints were being dealt with, or had been dealt with separately, that the issues behind Mr Kyriakou being sent for a medical examination were separate, and confirmed the view that there was no reason to overturn the decision, so they again asked Mr Kyriakou to attend the medical assessment. 195Mr Byatt was not sure whether Mr Kyriakou continued to drive after the statements he made on 1 June about involuntarily killing people. When he became involved in the matter he didn't believe that Mr Kyriakou was still driving. 196Mr Byatt acknowledged that he did not telephone Mr Kyriakou and "offer words of assistance and encouragement to the person making those complaints". He also acknowledged that the meeting he held with Mr Kyriakou on 27 July (together with Ms Phillips) was at Mr Kyriakou's request. He later indicated that in his view it was not his role to update Mr Kyriakou about the progress of his complaints. 197Mr Byatt agreed that there was sufficient concern about the behaviour that Mr Kyriakou had been exhibiting, as reported, for them to seek to get a clearance that he was able to perform his duties as a Bus Operator and during the period waiting on the clearance he was kept on administrative leave and suffered no financial penalty. Mr Byatt also agreed that if there was some issue as to a physical impairment or the possibility of a physical issue impacting on a driver's ability to operate a bus they might be directed to attend a medical assessment and pending the outcome of that assessment be removed from driving duties, such as in workers compensation matters. 198Mr Byatt was shown a copy of the letter Mr Kyriakou had sent to the Director-General concerning Regulation 24 (Exhibit 10) and asked a number of questions concerning its interpretation. Mr Byatt believed that STA had complied with Regulation 24 as once they had a suspicion that there was change in Mr Kyriakou's condition they removed him from driving duties and asked him to go and get a medical clarification. They did not have to comply with Regulation 24 until such time as the receipt of a medical report from a doctor. He said Mr Kyriakou also had a responsibility to self-report. He re-affirmed that he did not consider that STA had breached the Regulation. 199Mr Byatt indicated that he would have become aware of the reports about what Mr Kyriakou said at Strawberry Hill on 1 June prior to him writing the second letter to Dr Mayne which was the 19 July. Mr Byatt considered that his previous response to the issue of when it was necessary to refer a driver to the Director General was the same concerning Mr Kyriakou's having expressed the intention to involuntarily kill members of the public. 200Mr Byatt acknowledged that he had relied on the advice/reports that he had received as to the behaviours detailed in the letter to Dr Mayne, and that could have been received from Mr Wheeler. Mr Byatt was also taken through each of the issues so raised in the letters (see Background and Chronology above). 201In relation to the behaviour detailed concerning Mr Kyriakou's email to Ms Heather Brown which was considered "offensive", Mr Byatt agreed that an earlier memo to Mr Kyriakou from Mr Sabih concerning this email and the issue giving rise to it, made no mention of the email being "offensive". He said that was a matter for Mr Sabih but that he (Mr Byatt) considered the tone of certain aspects of the email as "inappropriate". 202Whilst Mr Byatt acknowledged that part of Mr Kyriakou's 12 July report was also, in part, refuting what Mr Wheeler claimed about his behaviour. Mr Byatt did not agree that it would have been prudent to await the outcome of the investigation into all of Mr Kyriakou's complaints before making an assessment as to whether Mr Wheeler had valid claims to direct him to a medical appointment. Mr Byatt went on to reiterate that it was pointed out to Mr Kyriakou on several occasions that he had raised concerns, they were being investigated by someone other than Mr Byatt, and he was on paid administrative leave pending attending a medical assessment. They were hoping to get him to attend a medical assessment in the hope that he would be cleared and they could return him to bus operating duties. STA did not like to see paid administrative leave extend beyond any period than was absolutely necessary. They hoped to be able to get Mr Kyriakou back to work. 203Mr Byatt categorically denied that the reasons they wanted to refer Mr Kyriakou to psychiatrist was based on a lie. 204Mr Byatt was unaware of whether Mr Kyriakou was ever offered counselling in relation to any behavioural issues. He distinguished the difference between the informal counselling concerning work performance conducted by supervisors and the counselling offered to a driver after a traffic accident. He indicated that STA did not have counsellors as such or conduct counselling but that they had nominated providers that were available to any employees who wished to use them, such as the Employee Assistance Program. 205Mr Byatt said that in the letters to the doctors that where he referred to - "Mr Kyriakou has been counselled and received discipline action regarding reported unsatisfactory work performance" - the counselling he was referring to was informal disciplinary action, performance review and probably less than a verbal warning. 206Mr Byatt indicated that the legal authority for STA to refer an employee for a medical assessment arose from STA's OH&S obligations and under their duty of care to that employee, other employees and members of the public. 207Mr Byatt said that STA did not get involved in the process of renewals of Transport NSW's Authority to Drive and renewals following a medical assessment. That was between an employee and Transport NSW. STA were only advised where an Authority was suspended or cancelled. 208Mr Byatt indicated that tone and content of Mr Kyriakou's emails raised concerns with him and was certainly not inconsistent with some of the other behaviours that appeared to be exhibited at the time. They were different to the normal emails he received but he did not usually receive a lot of emails from wages' employees. He said that there was never specifically any discussion with anyone about the sort of emails being sent by Mr Kyriakou. Mr Kyriakou had raised concerns and he wanted to make sure they were thoroughly investigated. He sought updates on that and that was an important part of the process. 209Mr Sabih has been employed by STA for 24 years and held a variety of positions before appointment to his current position in 2008. In his position of Staff Manager he has a supervisory responsibility for operations and staff of the Randwick Depot (including Bus Operators, Supervisors, Administrators, Maintenance and Cleaning Employees). He also has access to business records including employee files, notes, databases and operational documentation. 210He deposed as to Mr Kyriakou's employment history as well as his discipline history and attached relevant documentation to his witness statement. That discipline history dated from August 2004 to the date of dismissal and may be summarised as follows: A performance review with respect to attendance; 7 letters concerning unacceptable/unsatisfactory attendance, including absences without a medical certificate, with placement on a medical certificate restriction from October 2004; Memo re customer complaints received; 3 Absentee and Late Reports issued, with Mr Kyriakou spoken to about this; Warning letter issued re late at work & not commencing trips on time; 2 Final Warning letters issued; Final and Last Warning issued re lateness; Regression from Bus Operator 2 to Bus Operator 1 for 4 weeks, subject of appeal to TAB that was disallowed; 5 E1s issued, with 2 being withdrawn following receipt of Mr Kyriakou's explanation for such. 211Mr Sabih deposed that on 31 May 2010, he was a witness in a Transport Appeal Board hearing concerning an unsuccessful appeal by Mr Kyriakou against the decision of STA to regress him from Bus Operator Level 2 to Bus Operator Level 1 for a period of 4 weeks. The matter arose where Mr Kyriakou claimed he had not been paid for 11 minutes of work claimed by him around 30 December to have been performed on the 5 December 2009. A decision in the matter was handed down on the day of hearing with the written decision handed down on 22 June 2010. 212Mr Sabih also deposed that after Mr Kyriakou was issued with the Form E1 on 1 June that he went out and performed the first of his trips and then returned to the Depot before completing the remainder of his shifts. Mr Sabih was advised by Mr Bibawi, the Depot Officer on Duty, that Mr Kyriakou told him he was unable to complete the remainder of his shifts. He was later advised that Mr Kyriakou attended STA's offices at Strawberry Hills that day. 213Mr Sabih indicated the that he was aware of the policies of STA and local policies applicable to the Depot but would not be able to quote them word for word but they were on the internet and if he wasn't fully aware of a policy he could look it up if he needed to. He acknowledged that he was aware of the general principles of harassment and discrimination in the workplace. He agreed that he wrote memo for the Randwick Depot outlining the behaviour required from each staff member and that there was an "open door" policy regarding staff members approaching managers to discuss issues. 214Mr Sabih maintained that a memo he issued to staff on claims for overtime for writing General Reports in certain circumstances followed the provisions of the Award as it referred to "15 minutes at ordinary rates of pay". He did not agree with Mr Kyriakou that because this was in a driver's own time this meant it had to paid at overtime rates. 215Mr Sabih was asked a number of questions in relation to leave days taken by Mr Kyriakou as carer's leave but shown on his records as sick leave on the basis that he had been discriminated against by having such leave denied on occasions. In the absence of original STA documents (other than Mr Kyriakou's own photocopy of the application for leave form submitted) showing whether or not such leave had been approved, and where dates did not match up in the sick leave record, the issue could not be taken further. 216Mr Sabih indicated that when considering Mr Kyriakou's sick leave history he had taken into account both his unpaid and his unapproved sick leave. 217Mr Sabih was referred to a letter he had sent to Mr Kyriakou in 2009 (Exhibit 11-32) advising of an 'Unacceptable Attendance Pattern', and indicated that such letters were issued after the employee had been brought into the office and spoken to by their Staff Supervisor. He could not recall the particular circumstances of what happened at that time, apart from seeing that he was convinced at the time of the letter that it coincided with, and applied to the actual policy, and that Mr Kyriakou had a year and a half after that to complain about it and they didn't get any objections from him. 218Mr Sabih said he had no personal policy about the length of time involved in determining to take disciplinary action against an employee, it was the organisation's policy and he essentially said that it depended on the nature of the incident and the investigation required, but his preference was for it to be attended to as soon as practicable. 219Mr Sabih acknowledged that in his memo to Mr Kyriakou concerning his claim made to Heather Brown for 1 hour's overtime, that he did not refer to misconduct in the tone of Mr Kyriakou's email to Ms Brown as he was only addressing the facts that were asked for. 220Mr Sabih indicated that in relation to the investigation into Mr Kyriakou being reported for being 6 minutes late for duty on New Year's Eve (2009) he had been the Acting Depot Manager and had instructed the officer who was made aware of the incident to put in a report. Mr Sabih was not involved in the investigation, that was initiated by the Acting Staff Manager at the time Mr Todd Kilburn and resulted in the issuing of an E1. 221In reply to Mr Kyriakou's claim that he should have been "cut a bit of slack" in relation to this issue given the amount of time involved and the fact of it being New Year's Eve with all buses running late, Mr Sabih said that there was a limit, or a line, they had to draw sometimes as managers to ensure policy was adhered to. The issues had been discussed with Mr Kyriakou. He had gone to the extent of approving annual leave and leave without pay and accepted his excuses about his landlord and discussed those issues with him. He also understood that Mr Kyriakou had issues at home. It was affecting his work and this was not going to be accepted and he needed to find a solution. They did help out with some things, they did assist him. But the issue of late attendance was not going to be tolerated because while it might only be minutes to Mr Kyriakou it could be a breach of their contract with the Ministry of Transport. There was a limit to where one particular Depot could concentrate on one particular driver who could not perform to the appropriate level STA would like him to do i.e. arriving on time to work, that was the least they could ask of him and he had failed to do that. Mr Sabih said he could not allow him to do so because he had 339 Bus Operators that he would also have to give consideration to late arrival and if he did that he was going to lose his Depot, he would lose his operations. 222Mr Sabih could not recall whether he had ever offered Mr Kyriakou counselling or not. He was aware of the Employee Assistance Program that was available for employees to be referred to. They provided assistance to Mr Kyriakou in whatever he requested of annual leave, and "some leeway of understanding" that he arrived late at some stage because of his car being blocked etc. Whether his staff supervisor had offered that to him he could not recall. 223Mr Sabih said he did not know where there was one single application or two that Mr Kyriakou had requested and they had deemed it not approved, but went on to say "I'm sure that we've assisted you many times in that, I'm one hundred per cent sure". 224In relation to the rejection by Mr Sabih of Mr Kyriakou's request in May 2010 to convert sick leave to annual leave Mr Sabih could not recall if he was aware of any of the reasons for the request subsequently raised by Mr Kyriakou to Mr Wheeler, but said that it had been done in accordance with Depot policy. 225In relation to the meeting on the 30 June 2010 which Mr Kyriakou did not attend, Mr Sabih indicated that paperwork completed concerning Mr Kyriakou having to terminate his shift on the 29 June would probably have had something on it about the reason, but he could not recall at what time he got the paperwork the next day. 226Mr Sabih said that Mr Kyriakou not turning up at the meeting was not the reason why they sought to have him attend a psychiatrist and suspend him on pay. It was the series of events that happened prior to that that led them, as management, to express, not only Mr Sabih, but also the staff around them, a series of incidents and reports that had been given to them that raised concerns and Mr Sabih said that he had to approach Mr Wheeler and raise those concerns with him and say to him that the staff are not feeling safe to have Mr Kyriakou at the Depot before he had actually gone and sought some help. 227Mr Sabih was questioned on the issues for discussion at the proposed meeting that he had raised with Ms Phillips in his fax of the 28 June and he indicated that in relation to the issue of emails not to be accepted or responded to, that this was not contrary to his evidence that he had an 'open door policy'. 228He said that he encouraged face-to-face verbal communication and not emails between staff and managers, and staff and operators, because that was how he operated with the staff. Emails were only for emergency issues where a Bus Operator was overseas, or could not basically communicate with him. When a Bus Operator was rostered to work but sent an email instead, rather than come and see them face to face, that was not acceptable. If an employee needed to put something in writing, such as Mr Kyriakou, then they should follow the normal process of writing a General Report and coming in and seeing their Staff Supervisor to express their concerns. He considered the issue was basically a simple running away from the fact that a person needed to face up to a Manager or a Supervisor to talk about a particular issue. But if someone needed to liaise with their management by an email where they could not possibly come and see the Manager, that was totally different. 229Mr Sabih acknowledged that emails were a usual form of communication with Head Office, but said that was because of where they were located and the nature of the matters communicated (operational issues/requests/information etc.). The open door policy was not an open email policy. 230Mr Sabih also indicated that when emails were used by employees they were usually short, but that Mr Kyriakou wrote lengthy emails, and it was email after email, and he could not afford to sit down and waste all day reading them. That was why he preferred the person coming in and stating face-to-face their grievance. They had offered Mr Kyriakou a support person when he arrived for an investigation or delivery of a decision. They were not out to ambush the Bus Driver. 231He also indicated that Mr Kyriakou's emails "would go and on and bring previous issues up for discussion" . That was why he blocked it and moved it up to his manager(Mr Wheeler) and stopped responding to those emails. 232Mr Sabih was taken to Mr Kyriakou's disciplinary history that he had attached to his witness statement and asked a range of questions about individual entries. Mr Sabih said that a lot of Mr Kyriakou's absences for various reasons had been converted to annual leave but that when that happened it was costing the organisation money as they had to use overtime to cover his shifts. When he was compared with other Bus Operators, there was no comparison. 233Mr Sabih was taken to the report sent by Mr Wheeler to Dr Akkermann on the 7 July concerning the reasons for referring Mr Kyriakou for assessment. He could not recall if he had seen the report but agreed that Mr Wheeler would probably have consulted him about the contents and that he had direct knowledge of 4 of the specific incidents referred to in the report. 234He said that he was not aware of Mr Kyriakou's complaints to Mr Wheeler because the minute he had handed the matter to Mr Wheeler he told him he did not want to hear about it anymore. He was asked subsequently about the issue with the Delegate sleeping at the Depot, and Ms Brown had come to him and said that she was not happy with the way Mr Kyriakou was addressing her through emails. 235Mr Sabih said that in his position of Staff Manager he had been required to refer a driver directly to the Ministry of Transport and said that - "we are responsible or obliged to notify the Ministry of Transport the minute we know a person has got a medical condition". 236In re-examination, he clarified that it would not be himself, personally, who notified, but the Health Service Officer, and he would have discussions with them about that person. He gave an example of a driver who collapsed in the yard and they waited until the following day when they got the diagnosis that he had a heart condition, needed an operation and once they knew that he got the Health Services Officer to fill in the appropriate form and sent to the Ministry of Transport. Other employees would not be advised about such actions. 237In response to questions from the Board he advised that he would require a professional opinion, therefore a doctor's or specialist's report before notifying the Ministry of Transport. He would not do it on a suspicion. If they had a suspicion they would refer him to the appropriate medical professional and once they got that report then they would report to the Ministry. 238In response to further questioning from Mr Kyriakou as to his understanding of Regulation 24 Mr Sabih said that once he was aware that a condition was "true" he had 48 hours to notify the Ministry of Transport. A condition was "true" when the specialist sent him a fax or report to say that this particular driver cannot go out on the road and drive a bus. 239In re-examination Mr Sabih also indicated as follows: He had not breached the Award in any way in relation to claims for voluntary overtime. STA's Guidelines for Managing Conduct and Performance Code were used when a staff member breached the Code of Conduct. The time involved in investigations differed from case to case depending on the issues involved, availability of witnesses etc., Bus Operators would not know the discipline outcomes about other employees. He would not advise Mr Kyriakou of the discipline outcome of another employee. There were still three outstanding General Reports concerning Mr Kyriakou for which he had not yet been disciplined. Mr Sabih detailed the consequences for STA and the public if a driver was late. Mr Kyriakou was not disciplined on all occasions he was late. Mr Sabih did not approve the conversion of sick leave to annual leave as it was sought to enable Mr Kyriakou prepare a report against STA. Mr Sabih understood from Mr Kyriakou's email on 30 June 2010 that he would be coming to the meeting. Mr Wheeler determined that it was going to be a requirement for Mr Kyriakou to attend a doctor to asses his fitness. Mr Sabih had raised concerns with him about numerous incidents and behaviours that Mr Kyriakou displayed (and gave examples). 240In further cross examination of Mr Sabih he indicated that he did not approve the conversion of Mr Kyriakou's sick leave to annual leave as he had been given time off before and when they had raised a disciplinary issue with him he then wanted to go and write a report. They all wrote reports and they did their business outside of work. He acknowledged that the request said that Mr Kyriakou had a problem (ongoing and malicious campaign of harassment etc.,) but he had looked at the request, did not consider it reasonable, and decided at the time that it did not warrant him taking annual leave. 241Mr Kyriakou's witness statement (Exhibit 13) outlined in some detail the chronology of events leading up to and following his dismissal with various relevant documents attached and is reflected in the Background and Chronology above. 242Certain paragraphs in Mr Kyriakou's filed written submissions (Exhibit 14), following objections raised by STA, were ruled by the Board as more properly being evidence and admitted as such. 243Mr Kyriakou stated that on 1 June 2010, as a result of severe hostilities at Randwick Depot after he had levelled corruption allegations towards some Senior Managers at Randwick, he terminated his shift and made a number of telephone enquiries with several Human Resources staff in order to seek an emergency meeting with Ms Phillips. He did not receive any responses to his numerous emails so he left Randwick and attended Head Office at Strawberry Hills seeking to meet someone in authority who could least address his serious concerns. He met with Ms Coleman and Mr Fabian at approximately 3 o'clock outside and was given the opportunity to express his concerns and it was confirmed by both of them that an appointment would be made for a meeting with Ms Phillips. At no time did he state words or words to the effect of "kill" or "kill persons with my bus". This was a total fabrication of the facts and he vehemently rejected any claims made by STA that he stated any of those words. No such comments were made other than addressing those issues to the staff members that it was becoming extremely difficult to work at Randwick at that point in time. he did not hear from those two officers again. 244Mr Kyriakou stated that on 3 June 2010 he sent an email to Ms Phillips in which he again informed her regarding the hostilities at work and the fact that at times it was impacting his work. He suggested a temporary transfer to Waverley Bus Depot until such time as his complaints were addressed or resolved. Several days later he received a call from Ms Phillips stating that Mr Wheeler had informed her that there was no need for a transfer because they was simply "nothing going on and a transfer is not appropriate at this time." 245Mr Kyriakou stated that on 29 June 2010 at approximately 3 pm he was contacted by Campsie Police telling him that his mother had been rushed to hospital in a very bad state. He completed his scheduled school trip ensuring the school kids got home safely, returned to the Depot, informed his Duty Manager that he needed to terminate his shift because his mother had been admitted to Bankstown Hospital, left work and attended the hospital to be with his mother until the early hours of Wednesday morning 30 June 2010. 246He stated that in relation to the email he sent to Ms Phillips concerning the 30 June 2010 meeting at Randwick Depot that this was sent at 2:13 am in the morning immediately after returning from hospital and advised Ms Phillips that "given my mother's sudden hospitalisation, I may or may not be able to attend the scheduled meeting at 1:30 pm." 247Mr Kyriakou stated that he was off work on the 30 June, and 1 and 2 July caring for his mother who was in hospital. On the Friday (2 July) at approximately 4:30 pm he received a phone call from Mr Wheeler informing him that he was, in effect, barred from attending work. Mr Wheeler further stated that a letter would be sent to his home address on the following Monday in which the full details would be outlined as to the reasons why he was no longer to return to work. 248Mr Kyriakou stated that in relation to the direction from Mr Wheeler to attend the Psychiatrist on 14 July, that on 13 July 2010 at 2:29 pm he contacted Mr Wheeler via his mobile telephone and advised him that he would not be attending the scheduled medical appointment on the grounds that this direction was in fact retaliation for his corruption complaints he had lodged to him earlier. 249Mr Kyriakou stated that in relation to Mr Wheeler's letter concerning his immediate referral to a Consultant Psychiatrist to assess his fitness to drive a bus, that he was further advised that he would be on "Paid Administration Leave" during this period. He subsequently received confirmation from both Mr Wheeler, and then Mr Byatt, that this Paid Administration Leave involved the payment of wages reflecting that of his PM roster shifts that included penalty rates, allowances and overtime (Sunday shifts). This agreement was breached right from the start and continued up until his suspension without pay on 13 August 2010. After receiving his pay slip each fortnight he had to make contact with Mr Wheeler, Mr Byatt and payroll, in what turned out to be numerous emails to each, just so they could rectify the plethora of errors with respect to his pay and to ensure that he received the correct wages as agreed upon. He believed with a degree of certainty that what transpired up to that date was as a result of his failure to attend the scheduled meeting with Ms Phillips at Randwick on 30 June 2010. 250Mr Kyriakou stated that on 27 July 2010 he attended a meeting at Head Office with Mr Byatt and Ms Phillips to discuss some issues surrounding this whole saga. The meeting primarily focused on why he didn't attend the scheduled meeting Ms Phillips had organised at Randwick Depot on 30 June. The meeting then turned into a war of words in which both Mr Byatt and Ms Phillips attempted to demonstrate that this meeting was far more important than his mother's hospitalisation and health. Some issues regarding his complaints were canvassed at this meeting. 251Mr Kyriakou stated that on 28 (sic) July 2010 he agreed with Mr Byatt's direction to attend his family doctor Dr Koutsoullis for a medical assessment, however he maintained that this agreement was on the basis that he would be informed about the merits of his refuted claims against Mr Wheeler's allegations towards him. Dr Koutsoullis was unable to conduct this assessment on the grounds that the information STA required was well above his medical expertise and he conveyed this information to a person at STA by telephone while Mr Kyriakou was in his office at the surgery. 252Mr Kyriakou stated that on 5 October 2010 he went overseas in order to seek financial assistance from his then girlfriend in Bangkok, Thailand, so that he could secure funds for a solicitor and barrister for his Suspension Without Pay appeal. He did not consider that he had to inform STA about this travel during a period when he was suspended without pay. 253There was extensive cross examination of Mr Kyriakou during which he was taken to STA's policy, his absence history, lateness incidents, his various reports, and the directions to attend a medical assessment. 254He basically maintained his views and opinions about the issues raised in his written evidence. 255He did not consider that he had been cut any slack in his first five years of the employment prior to receiving his first written warning in 2009. Likewise, he did not concede that his absence record was poor, maintaining that the majority of his absences were carer's leave in relation to his mother. He continued to maintain that Mr Wheeler's actions in requiring him to attend a medical assessment were in retaliation for the allegations he had raised against him and the Managers at Randwick. 256He did not attend the doctor because he had not had a response to his refuted allegations as made by Mr Wheeler. He considered that the allegations should have been investigated first before he was referred for a medical assessment. He did not accept that issues had been investigated properly and Mr Wheeler had been given all the facts. Mr Wheeler was gravely exaggerating circumstances. 257He accepted that Mr Wheeler did not fabricate those events as a way to get him to see a doctor but considered that Mr Wheeler was not given all the facts properly and was given scattered information. Further Mr Kyriakou had made complaints against Mr Wheeler then suddenly he was the one called to make a determination regarding his behaviour. 258He accepted that he had not told anyone prior to 13 July that he was not going unless he had a response to his allegations. He agreed he was paid administrative leave during this time. He maintained that his letter of 12 July to Mr Wheeler indicated that there was nothing wrong with his mind and no justification regarding the integrity of his mental capacity and that he demonstrated and completely discredited his concerns. 259Mr Kyriakou said he had the intention of going to the doctor if he had been given some kind of preliminary response to his allegations. He acknowledged that when he agreed to go and see doctor he had not yet received any response to allegations. 260He disagreed that he never had the intention of going to the doctor and that at that time he had signed the medical release for the doctor concerned which was provided to Mr Byatt. He denied that he signed this release just so that he could continue to be paid. He signed it in good faith hoping to get a response. 261He acknowledged that in his letter of 15 July he did not say that he needed a response before he would attend the doctor but said that he did raise that he was asking for this harsh and unjustified treatment to cease immediately because there was no reasonable cause. He acknowledged that STA continued to pay him on the proviso that he would cooperate with the direction to attend. 262Mr Kyriakou maintained that in his 7 August email to Mr Byatt he said that in the absence of any detailed response to his letter of 5 August particularly in regards to his assertions that Mr Wheeler's claims were spurious that "I see no reason why I should attend the scheduled medical assessment this coming Monday". He accepted that it didn't say he would not attend and that he had accepted payment of administrative pay for six weeks. 263He acknowledged that Mr Byatt had responded to that email and reaffirmed the direction to attend the medical assessment, but said that he was not addressing his issues again. He went on to say that just because you're paying an employee and an employee is asking you to respond if his refuted allegations have any validity did not mean you had to hold them hostage and do whatever you like. He was not happy to accept payment, he wanted to go back to work at Randwick. 264He acknowledged that Mr Byatt and STA said that if he did attend the medical then they could reconsider his transfer, that was what they said, but they were avoiding his specific question about his refuted allegations against Mr Wheeler. 265Mr Kyriakou also stated that when he went to see his doctor (Dr Koutsoullis) that he had said to him as a passing comment that any doctor he went to, based on the information that he had read, would not give him a clearance. Mr Kyriakou acknowledged that this was the first time he had raised this issue. 266He went on to indicate that a doctor looking at those reports from the General Manager Eastern Region, then who would he believe? He was concerned that a doctor could not objectively make an assessment based on the evidence that was supplied by STA. In his opinion the concerns raised by STA were flawed, over-exaggerated and to some extent deceiving. He did not think he would be able to present his concerns to the doctor. He acknowledged that the first time he saw the reports that were sent to the Doctors was when he saw them in STA's filed evidence. 267Mr Kyriakou also provided a detailed response in answer/explanation of each of the issues raised in Mr Wheeler's letter to him of 5 July 2010 directing his attendance at a medical assessment. Findings 268This is an appeal under clause 32 of the Transport Administration (Staff) Regulation 2005 ("the Regulation") against STA's decision to impose the punishments of suspension and dismissal on Mr Kyriakou. Section 23(1) of the TAB Act provides that the Board may decide to allow, or disallow the appeal, or make such other decision as it thinks fit. 269Mr Kyriakou has pleaded not guilty, and disputes the findings of misconduct made against him by STA in relation to his breaches of the Code of Conduct in failing to comply with a lawful and reasonable direction issued to him, and also disputes the decision of STA to both suspend and dismiss him from his employment as a Bus Operator for that misconduct. The Board's function in this matter is to determine firstly, whether the misconduct alleged occurred, and secondly, whether the disciplinary punishments imposed by STA in relation to the misconduct findings are appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. The Board is obliged to determine the disputed issues before it on the civil standard of proof, that is, the balance of probabilities. The Board is also obliged to approach the matter in a manner consistent with the principles in Briginshaw v Briginshaw (1938) 60 CLR 336. 270Having carefully considered the evidence, the submissions of the parties and the relevant legal authorities, the Board finds that STA had both the managerial right and legal obligation under its OH&S responsibilities to refer Mr Kyriakou for a psychiatric assessment as a result of concerns it had about Mr Kyriakou's fitness to carry out his full duties as a Bus Operator. STA issued a lawful and reasonable direction that Mr Kyriakou attend a psychiatrist for a medical assessment on not just one, but three separate occasions. As evidence of STA's concerns he was taken off bus driving duties until such time as he was given a medical clearance. He was given every opportunity to comply with this direction and provided with paid administrative leave from the time of his removal from driving duties on 3 July 2010 until his refusal to comply with the direction to attend the third arranged appointment on the 13 August 2010. 271Mr Kyriakou had an obligation as an STA employee to follow the lawful and reasonable directions of his employer and that included attending for a medical assessment as to his fitness to drive a bus. As Ritchie C observed in Salat v NSW Police Force [2011] NSWIRComm 1040: It is settled law that an employee has a general obligation to follow the lawful and reasonable directions of their employer and a failure to do so may justify summary dismissal (see Adami v Maison de Luxe Ltd (1924)35 CLR 143 and Byrnes v Treloar & Ors. [1997] NSW SC629. In Varas v Fairfield City Council [2008] FMCA 996, the Federal Magistrate's Court also observed : 103. Similar issues arose in Thompson v IGT (Australia) Pty Limited [2008] FCA 994. The applicant in that case objected to seeing a psychiatrist when called upon to do so by his employer. At[38] Goldberg J noted that the applicant was not a doctor and whether it was appropriate or necessary for the applicant to have a psychiatric assessment or to have a meeting with a psychiatrist was a matter ultimately for the doctors to determine. Having regard to the applicant's history in that matter, Goldberg J did not consider the employer's request to be unreasonable. At [48]-[52] his Honour said: The following principles are well established. An employer may give an employee a lawful and reasonable direction, and it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer. In McManus v Scott-Charlton 919960 70FCR16, Finn J said at 21: The accepted view in this Court is that the common law obligation of an employee is to obey the lawful and reasonable commands or directions of the employer: see Australian Telecommunications Commission v Hart (1982) 65ALR 41; Bayley Osborne (1984)4 FCR141. 272The Board considers that it was neither necessary, nor indeed appropriate, that STA conduct an investigation and make findings about the specific events/issues referred to in the letters to Mr Kyriakou of 5 and 19 July 2010 (and in the reports to the doctors) prior to proceeding to have Mr Kyriakou medically assessed as to his fitness perform his duties as a Bus Operator. STA were raising concerns about his behaviour/conduct in relation to those events, as well as his pattern of unacceptable attendance/sick leave and his aggressive and threatening manner when issues about other staff were discussed with management. Quite properly STA sought to obtain an appropriate medical assessment about Mr Kyriakou. Clearly any medical condition, if diagnosed, may have impacted on/affected his behaviour and meant that rather than punishment for any fault that might be found on Mr Kyriakou's part (as a result of any subsequent investigation), medical assistance and counselling etc., may have needed to be considered, as well as alternate duties etc., or indeed a transfer to another Depot. 273The Board finds that there was no requirement under Regulation 24 of the Passenger Transport Regulations 2007 for STA to report its concerns about Mr Kyriakou to Transport NSW prior to obtaining an appropriate medical report to form the basis of a referral should that prove necessary. 274The Board accepts the evidence of Ms Phillips, Mr Byatt, Mr Sabih and in particular Ms Hatcher (as to the requisite Form 633 to be completed) as to STA's practice which clearly conforms, in the Board's view, with the requirements of Regulation 24. 275Indeed the Board considers that if an STA Manager could simply refer a Bus Operator to Transport NSW (either on physical or psychological grounds) without obtaining a proper medical report from an appropriate medical practitioner to justify such referral, then it would clearly be open to abuse and could be improperly used as a weapon or threat against a Bus Operator by such a Manager. The Board has no doubt whatsoever that if Mr Wheeler had in fact referred Mr Kyriakou directly to Transport NSW on 5 July 2010 rather than referring him to Dr Akkerman, that Mr Kyriakou would have perceived this as yet another example of the alleged "ongoing and malicious campaign of harassment, intimidation, bullying and otherwise ill-treatment" towards him and complained about such action. In that situation (direct reporting to Transport NSW) he would have been entitled to feel aggrieved and to complain about such an action taken in the absence of obtaining a proper medical report. 276It seems quite contradictory to the Board that Mr Kyriakou submits that Transport NSW had the "legal authority upon credible information" to refer him for a medical assessment, but he does not accept that STA, his employer, should also only refer him upon "credible "information" to Transport NSW. Mr Kyriakou never specified just what he meant by "credible information", however the Board considers that "credible information" would be appropriate written medical advice/report and not simply a Depot Manager's concerns about a Bus Operator's conduct/behaviour. 277In any event these appeals are about Mr kyriakou's failure to follow a lawful and reasonable direction of his employer and the appropriateness of the penalty for such failure, and not whether STA did or did not comply with Regulation 24. In the Board's view Mr Kyriakou has merely sought to deflect attention from his own actions. The exchange of correspondence on this issue between Mr Kyriakou and Transport NSW (as tendered in evidence) does not even answer the question posed by Mr Kyriakou and is sent in the absence of any relevant contextual background being provided to Transport NSW by Mr Kyriakou. Any obligations STA had in relation to compliance with Regulation 24 does not remove or diminish their legal authority to issue lawful and reasonable directions to their employees (such as Mr Kyriakou). 278The Board considers that it was entirely reasonable for Ms Phillips not only form the view that the complaints raised by Mr Kyriakou in his three separate reports were not raised as protected disclosures, but also that those complaints did not raise any issues of corrupt conduct. They were certainly issues of concern to Mr Kyriakou and he had every right to raise them, but Ms Phillips rightly categorised them, and dealt with them, as grievances he had against his managers and other employees, primarily concerning his perception of their treatment of him in relation to certain events/issues. These complaints were fully investigated and Mr Kyriakou's 37 allegations against various employees at Randwick Depot were not substantiated and no further action was taken, as indicated in the lengthy and comprehensive Report issued by STA's Workplace Change , Culture and Equity Unit issued on 26 October 2010. 279The following two issues that were the subject of complaint by Mr Kyriakou serve to illustrate the correctness of the approach taken by Ms Phillips and the STA (that is to treat the complaints as grievances and deal with them in accordance with the appropriate STA's policy on that basis). 280Mr Kyriakou's main complaint about alleged corruption and illegal practices by both management and the Union Delegate at the Depot arose from his total misinterpretation of the provisions of the Award applicable to the appropriate payment to be made to drivers completing General Reports in their own time (that is outside the normal working hours). The State Transit Authority Division of the Government Service Bus Operations Enterprise (State) Award 2009 provides at Clause 26, Making Reports, the following: 26.1 An employee shall be allowed fifteen minutes at ordinary rates for making an accident report in their own time. 26.2 15 minutes shall be allowed for the completion of an accident report when the report is completed in the employer's time. 26.3 An employee shall be allowed five minutes at ordinary rates for each report made in their own time concerning any other matter except those of a disciplinary nature or those arising from neglect or fault of the employee. At the discretion of the controlling officer, this allowance may be extended to 15 minutes. 281This provision was the subject of discussion and debate during the course of the proceedings. Mr Kyriakou maintained that because a report was done in the driver's own time that 'ordinary rates' in your own time meant overtime rates and that Managers and Supervisors such as Mr Sabih and Ms Brown had deliberately underpaid drivers and that this was essentially done with the knowledge of and in collusion with the Union Delegate. 282The Board as currently constituted has had many, many years of practical experience in interpreting awards and other industrial instruments made under the Industrial Relations Act 1996 (and indeed under the Acts in operation prior to 1996). The provision referred to means payment at the ordinary hourly rate of pay derived from dividing the weekly rate of pay by 38 (the ordinary hours of work). Management at Randwick were correct in their interpretation and application of this provision and Mr Kyriakou was totally incorrect. 283The Board also considers that the allegation made by Mr Kyriakou that because some drivers (and possibly a supervisor) were making bets with each other about how long he would be continue to be employed at Randwick, did not constitute Management condoning "illegal gambling" or that this was corrupt conduct. It was certainly inappropriate conduct and in very poor taste but hardly corrupt conduct. 284The Board accepts the submission of STA that Mr Kyriakou's complaints of 24 May (and his subsequent 2 Reports) are capable of being viewed as essentially a shield to protect him and deflect attention from disciplinary matters against him. He was facing possible disciplinary action and was well aware of this; it had been foreshadowed by Mr Wheeler on 19/20 May that an E1 was to be issued (this was the sixth E1 issued during his employment), not to mention his upcoming TAB appeal hearing on 31 May. Indeed his complaints could also, on that basis, be considered frivolous and vexatious (as per the definition in Employee Handbook) and not capable of being sustained as complaints about corruption. 285The Board has carefully analysed the factual events/documents set out in the detailed Background and Chronology above. It is abundantly clear to the Board there appear to be two precipitating events leading up to the 6 page email of complaint made to Mr Wheeler on 24 May 2010. Firstly, there was the Absence and Late Report submitted on 7 May concerning Mr Kyriakou's late arrival at work because he had locked his keys inside his flat. Secondly, there was Mr Wheeler's insistence on having original medical certificates provided for Mr Kyriakou's absence from 17 May to 21 May before he would authorise payment. This was a period of leave which Mr Sabih had evidently approved as annual leave as Mr Kyriakou did not have any paid sick leave left, however, because he had only faxed a photocopy rather than the original medical certificate, Mr Wheeler had said this could not be considered until he Mr Kyriakou had presented both a leave application and original medical certificate. Mr Wheeler had also advised Mr Kyriakou (by phone and email on 19 and 20 May) that once he was issued with the E1 letter relating to allegedly being late on 7 May that he would have seven days in which to provide a response and that the document he had obtained from the Real Estate Agent together with any other details/explanation should then be lodged for consideration by management and that no decision could be made as to the outcome until the available evidence was at hand. 286Mr Kyriakou complained about these issues and the financial circumstances that this placed him in on 19 May to Ms Phillips and again to Mr Wheeler in emails on 20 and 22 May. It should also be kept in mind that Mr Kyriakou was due to appear before the Transport Appeal Board (but not as currently constituted) on the following Monday 31 May, in relation to his appeal against the punishment imposed by STA of 4 weeks' regression from Bus Operator Level 2 to Bus Operator Level 1 as a consequence of his invalid claim for payment of late running time in December 2009. 287That is the context against which Mr Kyriakou emailed his first 6 page letter of complaint to Mr Wheeler at 3:53 am on Monday 24 May (which was copied to Ms Phillips in the same email). 288The Board considers that it is beyond doubt that when Mr Wheeler sent his email to Mr Kyriakou at 9:14 am on 24 May and said that he would not engage in an "email war" and that his complaints were "scurrilous", that he was in fact replying to the email Mr Kyriakou had sent him about the payment issue/medical certificates etc., on Saturday 22 May at 4:43 pm. That much is quite plain from Mr Wheeler's actual email (Exhibit 11-37) which appears as a reply above Mr Kyriakou's email, and as such is clearly part of that particular email history. 289The Board accepts Mr Wheeler's evidence on this issue. The Board also accepts Ms Phillip's evidence that she did not reply to Mr Kyriakou as she received the email by way of it being copied to her and it was an email sent to Mr Wheeler. She certainly referred his issue about payment to Mr Dunne and Mr Kyriakou was subsequently paid. 290It is also clear, and the Board accepts, that Mr Wheeler appropriately referred Mr Kyriakou's complaints on to Head Office. Ms Phillips looked into the complaints he raised in the 24 May email and he was provided with a response in the meeting of 27 July. Both the complaints made by Mr Kyriakou on 24 May, and his two subsequent Reports, were investigated by Ms Tracy Morton from STA's Workforce Change Culture and Equity Unit who prepared the comprehensive report released on 26 October 2010. Ms Phillips had no involvement in the investigation of the issues raised by Mr Kyriakou in his 2 subsequent Reports, nor did Mr Byatt. 291The Board would suggest however that when such complaints are made by an STA employee that a simple pro-forma letter be sent by STA to a complainant advising that the complaints have been received and forwarded to the appropriate section within STA (with such being nominated) for consideration. 292Mr Kyriakou did not return to work on Monday 24 May 2010 but applied for his remaining 8 days annual leave effective from that day (which was granted). He then appeared before the Transport Appeal Board on the following Monday, 31 May with the Board issuing a verbal decision at the end of the hearing dismissing his appeal (with a decision in writing issued on 22 June). Thus when Mr Kyriakou returned to work on the next day, 1 June, he received the E1 from Ms Brown about the late arrival to work on 7 May. The E1 had obviously not been presented to him prior to that day as he had been absent from work since the 17 May. However, given that he was well aware from the Absence and Late Report submitted and his conversation/emails with Mr Wheeler (around 19/20 May) that he was going to receive such an E1 then the Board has some difficulty understanding Mr Kyriakou's reaction and why he considered that he "was unable to drive a heavy vehicle bus out onto the street in the state of terror I am feeling" when he did eventually receive the foreshadowed E1 from Ms Brown. He had already received advice from Mr Wheeler about what needed to be provided and had a letter from his Real Estate Agent (who had to go and unlock his flat to he could get his keys and drive to work). It is understandable that the previous day he had appeared before the Board and had his appeal dismissed, but this was not ever raised as an issue by Mr Kyriakou as a cause for his state the next day. 293The Board considers that unfortunately Mr Kyriakou had a propensity for hyperbole throughout the process involving his complaints and the attempts of STA to have him medically assessed that did not assist his cause. This was particularly evident in the language and tone of many of his emails. 294The Board notes that the evidence of Mr Wheeler, Mr Sabih, and Mr Byatt was that eventually they refused/declined to continue to participate in an email exchange with Mr Kyriakou. This was entirely understandable. A reply to an email would generally only succeed in prompting a further email back from him sometimes raising new issues. It must also be said that on a number of occasions the language used (whilst not involving bad language or swearing) was not courteous and or respectful as should be expected in the workplace and was indeed on occasions quite inappropriate. Some of Mr Kyriakou's emails (for example to Mr Wheeler and Ms Brown) if sent via a workplace email would have breached the Email Policy in place generally in other public sector departments and could well have resulted in some form of disciplinary sanction, even if only a warning, just for the nature of the emails themselves. Mr Kyriakou was sending these emails from his private email address. The Board acknowledges that STA did not raise this at any time, although Mr Byatt did express some concern in response to questions from the Board during his oral evidence. 295The Board is not suggesting that Mr Kyriakou did not have every right to send grievances and complaints to his employer, however there was an appropriate way of doing that using appropriate language. This would be expected of both employees and management in any employment situation. 296The Board accepts that at no stage on 1 June (or subsequently) did either Ms Coleman or Mr Fabian, or anyone else for that matter, believe that Mr Kyriakou had any intention of deliberately killing or injuring people while driving a bus. It is clear from the file notes of Ms Coleman and Mr Fabian that what Mr Kyriakou essentially told them was that he felt so stressed that he was concerned that he might inadvertently harm someone whilst driving a bus. It is also clear from those notes that neither person was concerned about their safety or felt threatened by Mr Kyriakou. Mr Kyriakou also told Ms Phillips that he was concerned about driving his bus in the state that he was in. 297However the Board also notes that on 4 June when he attended Dr Koutsoullis for the purpose of completing his medical for Transport NSW for renewal of his Authority card that he apparently did not convey any such distress/concern to his doctor. The necessary form that is completed is a pro-forma with a section for the Driver to complete as to personal medical history (boxes to be ticked either 'Yes' or 'No' ). Mr Kyriakou ticked 'No' opposite the entry - "h. Psychiatric, Psychological, Nervous Disorder or Depression". If he had ticked 'Yes' then the instruction at the bottom of the page indicated "please have your Medical Practitioner (doctor) provide details on the following page in 'Doctor's Comments'. There were no comments concerning any stressed condition that Mr Kyriakou was suffering that was so severe that he was concerned about inadvertently injuring members of the public whilst driving his bus. 298As Mr Sabih rightly pointed out Mr Kyriakou also had a responsibility to self report to Transport NSW if he considered he was unsafe to drive a government bus. He could also have taken sick leave as suggested by Mr Dunne in their phone conversation on 2 June 1010 (even if he did not have any paid sick leave available). He did apply for leave, but for annual leave, and on the basis (as set out in his General Report of 4:05 pm ,1June) that he needed to avail himself properly so he could complete his "comprehensive report into numerous issues compounding my ability to effectively discharge my duties..." (etc., see para. 23 above). 299There has never been any suggestion on the part of STA, contrary to the somewhat colourful language used by Mr Kyriakou in his submissions, that anyone at STA considered that he was "psychotic" or a "psychopath". 300However as a result of issues reported to Mr Wheeler (principally by Mr Sabih), concerns developed that, as Ms Phillips categorised, - "were cumulative", leading to the view that an appropriate medical assessment of Mr Kyriakou's fitness to drive needed to be undertaken. Given those concerns, STA acted properly in removing Mr Kyriakou from driving duties pending the outcome of such assessment. 301It is crystal clear from the evidence of Ms Phillips, Mr Byatt and Mr Sabih that if Mr Kyriakou had been cleared and declared fit to drive then he would have been returned to driving duties. It is also clear that it would have then been necessary to appropriately investigate the issues/events contained in Mr Wheeler's 5 July letter. This may or may not have resulted in possible disciplinary action against Mr Kyriakou. 302The Board also notes that Ms Phillips and Mr Byatt had agreed, as at the 27July meeting with Mr Kyriakou, that he could be temporarily transferred from the Randwick Depot (but obviously this could only happen after the medical assessment process had been completed and he was cleared to return to driving duties.) 303STA's concerns (together with the conduct/performance matters flagged by Mr Sabih in his 28 June fax to Ms Phillips) were all issues that would have been discussed with Mr Kyriakou at the proposed meeting with Ms Phillips and Mr Sabih at the Depot on Wednesday 30 June at 1:30 pm. 304The email Mr Kyriakou sent to Ms Phillips about his mother's hospitalisation earlier that morning (2:14 am) certainly would have given any reasonable person the clear understanding that he was intending to attend the interview and visit his mother after the meeting. That is also the way the Board interprets the intention relayed by Mr Kyriakou in that email. 305The failure to attend or further contact Ms Phillips or the Depot seems to have been the final straw that led to the decision to remove him from driving duties and refer him for medical assessment. However it must be stressed that it was also as a result of the behaviours outlined in Mr Wheeler's 5 July letter and also his clearly unsatisfactory attendance record. That attendance record was not just about concerns as to days absent (for whatever reason), but also late arrivals and as well as his pattern of attendance, as set out in the letter and further detailed in Mr Sabih's evidence - being off sick on week days but reporting for duty on weekends where penalty rates applied. 306The Board has to observe that having considered Mr Kyriakou's attendance history, it was not good. Even in the first three months of his 2 year traineeship period he had 10 absences amounting to 9 1/2 days lost. That is quite startling and unusual for a new employee. He received as a result, his first 'Unsatisfactory Attendance' letter which placed him on a 4 month review period and required a medical certificate for any unplanned absences, and prior approval for planned absences. That pattern of review continued over the ensuing years with further similar letters issued in 2005, 2006 (2 issued), 2007 and 2009. His attendance history between 2004 and 2007 shows the overwhelming majority to have been personal sick leave (with medical conditions listed) or 'unknown. There are 3 instances of carers leave. Certainly the carer's leave may have increased in later years (the records were not as clear or unavailable), however to have been required to have a medical certificate for all sick leave essentially since not even midway into his first year of employment with STA would be an unsatisfactory and poor record for any employee. 307During the Board's consideration of Mr Kyriakou's Employment History (Exhibit 11-43) the Board also noted that on 27/10/2009 the following entry: Staff Supervisor Heather Brown acknowledged personal issues that B/O is having with landlord and mother' ill health. B/O given Converge counselling brochure and reminded that State Transit will pay the first 3 sessions. 308One of Mr Kyriakou's complaints was that he was never offered counselling at any kind. It is clear from that file note that he was in fact offered counselling and indeed the Board notes from the 'Unsatisfactory Attendance' letters he was issued the last paragraph indicates that "State Transit provides free and confidential counselling to staff and their families. This is at no cost to you and is completely confidential. It was always open to Mr Kyriakou to avail himself of that service. 309The Board accepts unequivocally Mr Wheeler's evidence that he did not direct Mr Kyriakou to attend a medical assessment in retaliation for the lodging of the 24 May complaints made against both Mr Wheeler and other Managers at Randwick Depot. 310Mr Kyriakou did not advise STA that he was not going to attend the 13 July medical appointment with Dr Akkerman until the day before that appointment. The basis of that non-attendance was because he maintained he could refute Mr Wheeler's claims (and did so in a further letter of 14 July). However up until that date he had accepted paid administrative leave on the basis that he would attend a medical assessment and not previously raised this as an issue. When the paid administrative leave was suspended and Mr Byatt became involved STA agreed that he could go to his own doctor. A singular concession in the Board's view on STA's part and a clear attempt to diffuse the situation and expedite the process in a way that would be accepted by Mr Kyriakou. Mr Kyriakou had no problem in attending this appointment and did not raise any issue about not attending because his refuted allegations had not been responded to. Unfortunately because Dr Koutsoullis could not provide a professional diagnosis and a further medical appointment was made with Dr Mayne (who had been on the list recommended by Dr Koutsoullis). Once again paid administrative leave was provided. Once again this was accepted by Mr Kyriakou without raising any issue that he required either a response to his refuted allegations, or, that he considered he did not need to attend a medical assessment until the very end. At no stage did he raise any concern with any negative comment that may have been made in passing by Dr Koutsoullis about the likely outcome of a medical assessment. This was raised for the first time in Mr Kyriakou's oral evidence. No reference was ever made to this comment by Mr Kyriakou to Mr Byatt or by him in his reply to Ms Hatcher or in either his witness statement or written submissions. 311The Board considers that Mr Kyriakou's failure to comply with STA's direction to attend a medical assessment with Dr Mayne was quite unreasonable in all of the circumstances, constitutes serious misconduct, and left STA with no alternative but to suspend him and arrange for an investigation into his actions to be initiated. 312The Board is satisfied that the investigation conducted by Ms Hatcher was procedurally fair. Mr Kyriakou was afforded every opportunity to respond, and indeed was granted five extensions of time over a in which to do so (altogether a period of 8 weeks) and offered a face to face disciplinary interview which was not taken up by him. Ms Hatcher found the misconduct proven and the determination of Mr Sinclair was that dismissal was the appropriate penalty to be applied for that misconduct. 313Having carefully considered all the evidence the Board is satisfied that Mr Kyriakou did commit misconduct in refusing to comply with the lawful and reasonable direction of STA. The Board does not accept that sufficient reasons have been put forward by Mr Kyriakou that would in any way justify his refusal to comply with that direction. Further the Board considers that the misconduct committed was a very serious breach of STA's Code of Conduct and Mr Kyriakou's responsibility as an employee of STA. 314The Board also considers that in all of the circumstances, the seriousness of the misconduct, as well as taking into account Mr Kyriakou's disciplinary history (2 Final Warnings, a First and Final warning, a 4 week regression in rank), that dismissal was the only appropriate disciplinary outcome under Clause 28(1) of the Regulation. 315The Board declines therefore to intervene in the decisions of STA to both suspend and dismiss Mr Kyriakou from his position of Bus Operator. Orders The appeals of Andrew Kyriakou (TAB10/1348 and TAB10/1617) are disallowed. Elizabeth Bishop 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: 09 September 2011