Transport Appeal Boards New South Wales Medium Neutral Citation: Webster v State Transit Authority [2011] NSWTAB 23 Hearing dates: 12 September 2011 Decision date: 02 December 2011 Before: Macdonald C (Board) Decision: Appeal dismissed Catchwords: PUBLIC SERVICE - State Transit Authority - bus depot - anonymous General Report Form left under the door of manager's office - the Report attacked character of two employees - STA investigation found attack unwarranted - STA engaged forensic document examiner to examine handwriting of anonymous author who was conclusively identified by examiner - formal disciplinary proceedings conducted against identified author - show cause letter - author/bus driver denied being author - STA found bus driver guilty - penalty of suspension and grade reggression applied by STA - bus driver appealed to Board - HEARING - no substantive evidence brought by bus driver to counter handwriting expert engaged by STA - appeal dismissed. Legislation Cited: Transport Administration (Staff) Regulation 2005 Cases Cited: Panozzo v STA (TD/236/09) 1 December 2009 Category: Principal judgment Parties: Margaret Rita Webster (Appellant) State Transit Authority (Respondent) Representation: Mr C Preston, Secretary, Rail, Tram and Bus Union (Appellant) Mr S McLean, Employee Relations Advisor State Transit Authority (Respondent) File Number(s): TAB 1026 of 2011 DECISION INTRODUCTION 1Ms Margaret Rita Webster (the Appellant) has lodged an appeal, in accordance with clause 32 of the Transport Administration (Staff) Regulation 2005, against the decision of the State Transit Authority ("the STA") to suspend her without pay for ten working days and to regress her in grade. The foregoing disciplinary penalty was imposed by the STA, on the basis of its investigation and finding, that the Appellant had been the author of an unsigned General Report (the Report) Form, which made unfavourable allegations against two un-named employees of the Willoughby Bus Depot. BACKGROUND 2On 8 December 2010 an unsigned handwritten General Report Form ("the Report") was submitted to the Depot Manager, Willoughby, alleging that a Bus Operator and a Duty Officer had engaged in corrupt and unfair behaviour. 3Following receipt of the Report, management investigated the allegations raised in the Report. Upon reviewing rosters and the information provided in the Report, the management found that it was established that the employee referred to in the Report was Bus Operator, Ms Megan Noyeaux. 4The allegations raised in the Report were found by the management to be baseless as there were no inappropriate actions engaged in by management, the Duty Officer or Bus Operator Noyeaux. 5Considering the Appellant's previous interpersonal conflicts and issues, it was suspected by management that the Appellant was the author of the Report. Arrangements were made for the Report to be examined by a handwriting expert. 6On 20 January 2011, the forensic document examiner completed a report that concluded that the Report had been written by the Appellant. 7On 31 January 2011, the Appellant was issued with a letter inviting her to show cause as to why she should not be subjected to formal disciplinary proceedings. 8On 2 February 2011, the Appellant provided a response to the "show cause" letter. 9On 14 February 2011, formal disciplinary action was commenced and the Appellant was issued with a Form E1 which detailed the allegation against her. 10On 18 February 2011, the Appellant commenced leave for medical reasons and returned to work on 4 April 2011. 11On 5 April 2011, the Appellant was re-issued with the Form E1. 12On 5 April 2011, the Appellant provided a response to the Form E1. The response was dated 14 February 2011 and was made in reply to the (original) Form E1 that was issued to the Appellant on 14 February 2011. 13On 20 April 2011, an interview was conducted with the Appellant to obtain any additional information relating to the allegation put forward in the Form E1. The Appellant stated that she had nothing further to add. 14On 21 April 2011, the Investigating Officer summarised his findings and found, on the evidence available, that the charge against the Appellant was proven. 15The Depot manager, Willoughby, reviewed the Investigating Officer's findings and determined an appropriate punishment of (a) suspension without pay for ten working days and (b) regression to Bus Operator Level 1 for six months. 16The Appellant was issued with a Notice of Punishment on 4 May 2011. 17On 13 May 2011, the Appellant lodged a Notice of Appeal with the Transport Appeal Boards. APPEAL PROCEEDINGS - TRANSPORT APPEAL BOARD 18The appeal by the Appellant was heard by the Board on 12 September 2011. 19At the hearing, the STA was represented by Mr S McLean, Employee Relations Advisor, who filed the following witness statements: Kenneth Wheeler - Depot Manager Rick Sciarrone - Staff Manager Mark Peters - General Manager, Western Region Christopher Anderson - Forensic Document Examiner Of the foregoing witnesses, only the latter two were required for cross-examination by the Rail, Tram and Bus Union ("the Union"). 20At the hearing, the Appellant was represented by Mr C Preston, Secretary, of the Union. The Appellant had been given notice by the STA, that she was required for cross-examination. 21In the Notice of Appeal - Transport Discipline, filed by the Appellant on 13 May 2011, she pleaded "Not Guilty". FINAL SUBMISSIONS For the STA 22Mr McLean, for the STA, put the following in final submissions: (a) The Appellant denied that she is the author of the unsigned handwritten General Report Form. The evidence of Chris Anderson, forensic document examiner, was that the Appellant is the author of the Report. The Appellant did not put on a handwriting expert to contradict the evidence and finding of Chris Anderson. (b) The one page printout provided by the Appellant, regarding the reliability of handwriting analysis is an unattributed document and could not be tested as to its veracity and qualifications of its author. (c) The Appellant had a motive to discredit Megan Noyer because of past interactions between them. The Appellant had the opportunity to gain access to certain information about the work pattern of Megan Noyeaux and used this information in the Report. (d) The Appellant was not denied procedural fairness arising out of the STA's investigation into this matter. For the Appellant 23Mr Preston, for the Appellant, put the following in final submissions: (a) The STA allege that the Appellant was the author of an unsigned Report, dated 8/12/10, which said that a driver and maybe a depot officer might have acted inappropriately. The Appellant denies being the author and having knowledge of the Report on or before 8.12.2010. (b) The Report asserts a certain fact about the presence of Megan Noyeaux at the bus depot. This assertion required that the person asserting it (the author of the Report) be present at the bus depot, in order to witness and then record the Noyeaux observation. The Appellant was not present at the bus depot at the time as she was out on the road driving a bus. Therefore (the Union submitted), the Appellant could not have been the author of the Report. (c) Mr Chris Anderson acknowledged that forensic document examiners can draw the wrong conclusion when analysing handwriting. CONSIDERATION 24The proceeding before the Board, concerns an appeal by Ms Webster, the Appellant, against a decision by her employer (the STA) to impose the disciplinary penalty of (a) suspension from work without pay for ten working days; and (b) the regression to Bus Operator Level 1 for a period of six months. (On the lapse of six months, she will revert to her former grade). 25The foregoing disciplinary penalty was imposed by the STA, on the basis of its investigation and finding, that the Appellant had been the author of an unsigned General Report Form (the Report), which made unfavourable allegations against two un-named employees of the Willoughby Bus Depot. The investigation included the forensic analysis of the un-authored Report. That forensic analysis concluded that the author was the Appellant. 26The Appellant denied she was the author of the un-authored Report and hence submits that she should not have been the subject of disciplinary action. The Appellant seeks an order(s) from the Board rescinding the disciplinary penalties and hence reinstating her to her former position. 27The Board will now examine the evidence brought forward by the STA to support its claim that Ms Webster (the Appellant) was the author of the Report. The Un-authored General Report 28Mr Rick Sciarrone, Staff Manager of the Willoughby Bus Depot, deposed that on 8 December 2010, he entered the Depot Manager's office and noticed an envelope on the floor. Inside the envelope was a General Report Form. In upper case handwriting was the following message (less one scratched out word): "Details: WHY IS THIS ALLOWED TO HAPPEN? THIS DRIVER PROTESTED WHEN SHE GOT TO THE DEPOT & FOUND HER SHIFT HAD CHANGED IN WORK & TIME. SHE WAS STILL IN DEPOT AT 7.30 A.M. SHE LEFT THE DEPOT AROUND 1PM. THIS IS WAGE CORRUPTION! THIS IS UNFAIR TO OTHER DRIVERS! IF SHE WAS SICK SHE SHOULD NOT HAVE BEEN ON DEPOT PREMISES. MAYBE HER HUSBAND BEING D.O. AT TIME HAS SOMETHING TO DO WITH IT! I HAVE SENT COPIES TO STRAWBERRY HILLS & MINISTRY OF TRANSPORT THIS SORT OF THING HAS GONE ON LONG ENOUGH Signed: A DRIVER WHO HAS COVERED HER WORK LONG ENOUGH" (Ex 2, Attach 2) 29Mr Sciarrone was concerned with the above content as it made allegations against management and staff. From the content and roster records, he ascertained that the staff employee accused of "wage corruption" was Megan Noyeaux. The roster records showed that Ms Noyeaux had not received wage payments beyond 1.00pm till 3.00pm that particular day and so the allegation against her of wage corruption was false. 30Mr Sciarrone checked back three months through documents and concluded that there was no evidence that Ms Noyeaux had received a benefit or preferential treatment, as alleged in the unsigned Report. (Ex 2, paras 13-17) 31Mr Mark Peters, General Manager Western Region, requested the Equity Unit of the STA to include a handwriting analysis of the un-authored Report as part of the overall investigation into the Report. The Handwriting Analysis 32Mr Christopher Anderson is a Sydney based forensic document examiner. He has thirty five years experience in the field. Since 1984, he has been a full member of the Australasian Society of Forensic Document Examiners. He has testified before many courts across Australia questionned documents. 33Mr Anderson was provided with examples of the handwriting of seven (7) employees from Willoughby Bus Depot. One of these seven employee handwriting examples, was that of the Appellant. Mr Anderson was also provided with the Report which also goes by the name of the questionned document. 34Mr Anderson compared the handwriting of the questionned document against the handwriting examples of the seven employees. He concluded that the author of the Report/questionnaire document was the Appellant. (Ex 4) 35During his examination-in-chief in the witness box, Mr Anderson stated that there are different levels of conclusion that can be drawn as to the strength of the evidence to support a conclusion. In this case, his conclusion that the Appellant wrote the Report was at the highest level of conclusive proof. That is, the Appellant was the author of the Report. (Tr 12/09/11 - p18, line 33-43) 36Under cross-examination from the Union, Mr Anderson was asked if the handwriting style contained in the Report was a forgery - that is, he was asked if someone else had forged the Appellant's handwriting style. He responded that he did not believe that to be so in this case. The Union did not pursue this line of enquiry by producing evidence to show that the Report was or could have been the result of a forgery. 37The Union and the Appellant did not produce their own handwriting expert to challenge the conclusive finding of Mr Anderson that the Appellant was the author of the Report. (The Board appreciates that costs consideration would probably be an issue with respect to having an expert as a witness). 38Under cross-examination, the Union raised with Mr Anderson, the possibility that handwriting experts can "get it wrong" and instanced the "Hitler Diaries" forgery scandal, as proof of that possibility. Mr Anderson concurred that experts can "get it wrong". As to the Union's point, the Board notes that the Union/the Appellant did not produce evidence to show that Mr Anderson got it wrong. CONCLUSION 39The Appellant has appealed the disciplinary penalty applied to her by the STA. The Appellant denied that she was the author of the Report. 40Having considered all of the material, the Board finds that the conclusive finding of Mr Anderson that the Appellant was the author of the Report, has not been challenged in any meaningful way - if at all. 41Accordingly, the Board dismisses the appeal of Ms Margaret Webster. A Macdonald The Board 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: 03 May 2012