Transport Appeal Boards New South Wales Medium Neutral Citation: Norman v State Transit Authority [2012] NSWTAB 12 Hearing dates: 6 and 7 February 2012 Decision date: 20 April 2012 Before: Bishop C (Board) Decision: Appeal allowed Catchwords: PUBLIC SERVICE - discipline - Bus Operator Trainer - issues raised re training arising from discrete checks - regressed in rank/grade - appeal to Transport Appeal Board - no evidence at to adverse results for trainees - no evidence from supervisors - no complaints from trainees - issues with training materials identified - insufficient evidence to support disciplinary decision made - counselling and further monitoring recommended. Legislation Cited: Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Antonic v Roads and Traffic Authority [2005] NSWIRComm 344 Australian Liquor, Hospitality and Miscellaneous Workers Union New South Wales Branch (on behalf of Brooks) v City of Sydney RSL [2002] NSWIRComm 1013 Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Norman v State Transit Authority TD/379/09 Wheeler v RailCorp [2011] NSWTAB 21 Category: Principal judgment Parties: Catherine Norman (Appellant) State Transit Authority Division of the New South Wales Government Service (Respondent) File Number(s): TAB 1269 of 2011 DECISION Introduction 1Ms Norman commenced employment with the State Transit Authority (STA) on 26 May 2003 as a Trainee Bus Operator. She was subsequently appointed to the position of Bus Operator Trainer Level 1 at Brookvale Depot effective as from 8 November 2008. 2On the 20 September 2011 STA issued a Notice of Punishment to Ms Norman regressing her to a Bus Operator Level 2. 3On the 20 September 2011 Ms Norman lodged an appeal with respect to her regression by the STA to the Transport Appeal Boards. In her Notice of Appeal she indicated a plea of 'not guilty'. 4The matter was listed for disciplinary conciliation before Commissioner Macdonald on 12 October 2011, at which time conciliation took place. As no settlement could be reached between the parties, directions were issued as to the filing and exchange of written cases and statements pursuant to Practice Note 22 and the appeal was re-allocated to the Board as currently constituted and set down for hearing on the 6 and 7 February 2012. Background and Chronology 5The following Background and Chronology has been drawn from the evidence and submissions before the Board as filed by the parties. 6On commencement as a Trainee Bus Operator with STA on 26 May 2003, Ms Norman received a copy of the STA Code of Conduct. 7Between November 2005 and March 2006 Ms Norman was successful in selection for placement on the Bus Operator Trainer Level 1 Relief Training Program; successfully completed Certificate IV in Assessment & Workplace Training; subsequently submitted an application for the position of Bus Operator Trainer Level 1 Brookvale; was initially unsuccessful in gaining the position but after internal review was appointed to the position effective 6 November 2008. She was reissued with the State Transit Employee Folder which included the Code of Conduct and Bus Operations Handbook on 1 September 2008. 8On 23 October 2009, Ms Norman was issued with a Form E1 for failing to follow correct procedures and provide adequate guidance and advice to a Trainee Bus Operator. Ms Norman provided a written response to the charges on 29 October 2009. On 13 November 2009 she was advised of the decision of STA to regress her to the position of Bus Operator. She appealed that decision to the Transport Appeal Boards (TD09/379). Her appeal was allowed by decision of 24 February 2010 and a modified penalty imposed that firstly ordered her reinstatement to the position of Bus Operator Trainer Level 1 as from 1 March 2010 and secondly ordered that she "must successfully undergo a programme of training and assessment to be conducted by a qualified trainer within the Learning and Development Department of the State Transit Authority". 9The orders of the TAB were implemented by STA. In relation to the further training requirement, STA initially undertook a training needs analysis on 22 and 31 March and 1, 6, 7 and 8 April 2010 involving assessing Ms Normans' training of a TBO and which was observed by A/VET Supervisor Kevin Howard and a BOT 3 Grant Gumley (Modules 1 and 3). As a result of their observations various issues were identified as requiring addressing and on 15 April 2010 Mr Howard provided a summary of the training needs analysis which identified and recommended the re-training required. As a consequence of those recommendations Ms Norman was enrolled in the STA Certificate IV in Training and Assessment commencing in July 2010 (Exhibit 7-A1). 10The training was carried out by Ms Madeleine Hopkins, Learning and Development Advisor with the Learning and Development Unit of STA who holds appropriate training qualifications. On the 14 December 2010 Ms Hopkins provided a report by way of an Internal Memorandum on the outcome of the training and assessment of Ms Norman to Ms Shelley De Courcy Lys, Depot Manager Brookvale (Exhibit 3-3). In addition to positive comments about Ms Norman being "an enthusiastic student" and "very articulate," the following was also noted: Unfortunately Catherine's enthusiasm can be misplaced and her urge to 'help' created problems or missed opportunities for the other students. During the assessment of the 'Delivery' unit students, who were acting as 'trainees' were given appropriate roles to 'challenge' the person being assessed. This was done to enable all areas of competency to be tested. Catherine, on two occasions, took on a role which was not allocated to her. As a result one of the students being assessed at to be re-assessed. This was because Catherine's actions made an already nervous candidate, stressed to the extent that they lost their train of thought and could not successfully complete their assessment. The other student managed to carry on regardless of the interruptions and successfully completed their assessment. Catherine's enthusiasm often leads her to not quite following guidelines. In the VET sector this can cause non-compliance issues. Catherine has the potential to be a good trainer providing she commits to and follows the guidelines for both training and assessment. Close supervision/mentoring may help Catherine to her achieve her potential. 11Ms Norman was deemed competent in the requisite 6 TAA Units in January 2011 and signed the State Transit Registered Training Organisation Trainer and Assessor Code of Practice on 20 January 2011. BOT1 Training was then organised for Ms Norman which was undertaken by an experienced BOT1 Carlos Prieto and which involved Ms Norman firstly observing the BOT1 deliver Module 1 training at the Brookvale Depot (28 February) and then the BOT1 observing Ms Norman deliver the same training on 21 March 2011. Ms Norman then observed the BOT1 carry out Module 3 Training at the Willoughby Depot (22, 23, 24, 25 and 28 March 2011) and then the BOT1 observed Ms Norman carrying out that same training on 13, 14, 15, 18 and 19 April 2011. Two separate reports were provide by BOT1 Pietro as to that training which identified 9 and 8 improvements, respectively, that Ms Norman should implement. 12On 28 April 2011, the Brookvale Depot Manager was advised that Ms Norman had successfully completed the required training and could recommence duties as a BOT1. 13On 9 May 2011, Ms Norman attended a meeting with Brookvale Depot management (E. Robinson and D. Larosa) at which the observations of BOT1 Prieto were reported. A file note of the meeting was made in which it was also noted that the following was reiterated to Ms Norman (Exhibit 7-8): Keeping things as simple as possible for her trainees. Keeping her own running commentary whilst on buses to her self (sic) and allowing training (sic) to concentrate on driving. To train on STA Materials and course only not on made up materials. To keep inappropriate comments regarding staff, customers and State Transit to herself. 14STA subsequently arranged for two discreet checks to be carried out on Ms Norman on the 13 July 2011 (BOT3 Graham Meredith) and on the 14 July 2011 (BOT3 Esat Juma) during her training of Trainee Bus Operator Danny Lorentzen at the Mona Vale Depot. As a result of the reports provided by the two BOT3s Ms Norman was issued with a Form E1 on the 3 August 2011 which detailed the following charges: CHARGE 1 On 13 July 2011 whilst training a Trainee Bus Operator (TBO) driving shift 4T164 Route L 85, you breached the Code of Conduct in that you failed to carry out the training duties required of a Bus Operator Level 1, (BOT1) to the standard required by State Transit. Charge 1 Particulars During the operation of shift 4T164 Route L 85 you amongst other things; Failed to instruct the TBO to activate and check the AFC prior to leaving the depot, resulting in the TBO being forced to activate and check the AFC while the bus was in operation. Distracted the TBO whilst bus was in motion, by having a conversation about the weather. Contrary to good instructional techniques, instructed the TBO to raise a bus prior to a speed hump thereby denying the TBA the opportunity to make that decision. Distracted the TBO whilst bus was in motion, by providing instruction on navigating the right turn near Mona Vale RSL and then proceeding to discuss the property development occurring near this location. Failed to provide correct instruction to the TBO, by instructing the TBO to pull into the curb and record the time of arrival on his journey due to running 1 minute late. Unnecessarily causing delay to the trip. Distracted the TBO whilst the bus was in motion, by highlighting a minor driving mistake in front of passengers, contrary to good instructional techniques. Distracted the TBO whilst the bus was in motion, by informing the TBO that you needed to have a training session on OH&S at some point during the morning. Distracted the TBO whilst the bus was in motion, by instructing the TBO to drive in lane one on Pittwater Road and then explaining the limited stops that the L85 is required to stop at. Distracted the TBO whilst the bus was in motion, by discussing with the TBO that he was 4 minutes late into Dee Why and instructing him to remain behind other buses in front of him, contrary to good instructional techniques. CHARGE 2 On 14 July 2011 whilst training a Trainee Bus Operator (TBO) driving Bus 1886 Route 184 Run FO55, you breached the Code of Conduct in that you failed to carry out the training duties required of a Bus Operator Level 1, (BOT1) to the standard required by State Transit. Charge 2 Particulars During the operation of Bus 1886 Route 184 Run FO55 you, amongst other things; Failed to instruct the TBO whilst the bus was stationary, to kneel the bus on four (4) occasions for elderly passengers, when it was safe to do so. Failed to instruct the TBO to stop changing sections on the AFC, whilst the bus was in motion. Failed to instruct the TBO to keeps (sic) both hands on the steering wheel whilst the bus was in motion; contrary to safe driving practice. Distracted the TBO whilst the bus was in motion, by discussing the agenda for the day and how to do with blind passengers. Failed to instruct the TBO to keep his eyes on the road, while discussing the agendas for the day and how to deal with blind passengers; contrary to safe driving practice. 15Mr Dominic Larosa, Brookvale Depot Manager, issued a Brief to conduct an Investigation into the allegations which was undertaken by Mr David Browning, Manager Registered Training Organisation within the Learning and Development Unit of the STA. 16Ms Norman provided written responses to the allegations on 3 August 2011 and was also interviewed by Mr Browning on 25 August 2011 (with a support person present) Mr Browning also interviewed BOT3s Meredith and Juma. 17On receipt of Mr Browning's Investigation Report, Mr Larosa also reviewed Ms Norman's disciplinary history, any favourable notations, her Training history, and on 21 November 2011, determined "on the evidence available" that she should not hold the position of Bus Trainer Level 1 and should be permanently regressed to the position of Bus Operator Level 2. 18STA also referred to the following disciplinary history of Ms Norman (Exhibit 1-2 & 3): Issued with a letter of 4 September 2008 concerning late leaving the Depot resulting in late running, Issued with a letter of 11 September 2008 in response to obtaining journal information without authorisation, Meeting with Depot management on 24 November 2008 relating to allegations of improper training and failing to follow correct procedures when undertaking training. Issued with a letter of 15 February 2009 when a bus was taken off-route, Spoken to around 27 July 2009, about being late from the Depot, Issued with a Form E1 on 4 August 2009 relating to late running and failing to follow procedures, Issued with a warning on 6 October 2009 with respect to the Charges outlined in the Form E1 above Issued on 23 October 2009 with a Form E1 for failing to follow correct procedures and provide adequate guidance and advice to a Trainee Bus Operator. Ms Norman submitted a written response dated 29 October 2009. Advised by letter of 13 November 2009 of her regression to Bus Operator. 19Ms Norman also relied on some 37 commendations from Depot management concerning commendations/praise from members of the public as to her customer service (Exhibit 2-3). 20Ms Norman is currently performing the duties of a Bus Operator Level 2 (BOL2) and being paid the applicable base level of $921.00 gross per week inclusive of the Industry Allowance (payable for all purposes of the award). A Bus Operator Trainer Level 1 is paid a base level of $1011.70 inclusive of the Industry Allowance (payable for all purposes of the award). Issue(s) 21Ms Norman pleaded not guilty to the allegations and sought that the penalty be set aside. It is therefore the Board's task to firstly determine whether the allegations against Ms Norman are sustained, and secondly the appropriate penalty to be imposed if the allegations are found to be sustained. Submissions on behalf of the Respondent 22The STA presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980 and made oral submissions in addition to the written submissions as filed (Exhibit 1). 23It was submitted that the evidence was conclusive; there was a proven history of Ms Norman failing to follow procedure and in effect substituting her own standards and methodology for that of the STA. 24Reference was also made to the evidence of Ms Hopkins and the reservations she expressed in her report concerning Ms Norman's further Certificate IV training. The reservations were such that it was determined to have a thorough discrete check on Ms Norman sometime after she was back in service. 25The Board was asked to accept the findings set out in the evidence that Ms Norman failed to carry the training duties of a Bus Operator Level 1 (BOT1) to the standard and sequence required by STA. Those findings arose from the discrete checks conducted by experienced BOT3s Meredith and Juma who were also experienced in the BOT1 Role. Both they, and Mr Larosa, were aware of discrete checks being carried out on both Bus Operators and other BOT1s, so that there was precedence for such checks. 26Further, the BOT3s in carrying out the discrete checks relied on the criteria found in Module 3 which was common to all Depots. There was also no question of any adverse motivation on their part towards Ms Norman in their observations. 27It was submitted that their evidence as experienced STA operators, very well aware of the applicable training and assessment criteria, should be accepted on its value and due weight be placed upon it. 28Mr Browning's evidence as to the investigation he conducted into the allegations was also drawn to the attention of the Board and in particular the anomalies and direct contradictions referred to in his Report as to Ms Norman's responses in her Disciplinary Interview. 29It had also been clearly established that the list Mr Browning referred to in his written statement (Exhibit 6-para.14) was extracted from Module 3 and only illustrative of what should be happening. He did not say it should be used as a check list. It was prepared for the purposes of his statement only. 30Mr Larosa's evidence was also not seriously challenged. 31The Board was advised that STA had some four thousand Bus Operators, the majority of whom commenced service as Trainee Bus Operators (TBO) on a two year Traineeship. The number of Trainees commencing and undertaking training in any year was approximately one thousand. Of those commencing, approximately three hundred had their Traineeships terminated, either by mutual consent, or through application to cancel, by STA during the first year. The standard was high and the RTO, through the BOT structure, was committed to maintaining that standard. 32Traineeships were created, maintained and concluded within the legislative requirements of State and Federal agencies and departments. The training and assessment of TBO's was also determined, contained within, and complied with the legislative requirements of State and Federal agencies and departments. Departure from these requirements by those undertaking the training of TBO's meant censure and some form of penalty to STA. Departure from these requirements by those undertaking the training of TBO's was also a critical safety issue for State Transit. 33Further, the safe control of vehicles, weighing on average some 14 tonnes and length of between 10 and 18 metres on Sydney roads operating to a timetable, was an essential criterion for any STA Bus Operator. The BOT structure was accountable for training BO's to that level. Departure from the Training Guidelines was a very serious event and treated accordingly as evidenced by the statement of Mr Browning (Exhibit 6). 34It was also submitted that STA operated under the Transport Administration Act 1988 and other Regulations including the Transport Administration (Staff) Regulation 2005, which provides for the following: 28 Punishments in disciplinary proceedings (1) The STA may impose any one or more of the following punishments in disciplinary proceedings against an STA officer: (a) a caution or reprimand, (b) a fine of an amount not exceeding $100, (c) reduction in position, rank or grade and pay, (d) suspension from duty without pay, (e) dismissal. 35It was submitted that there was no qualification concerning the period of time or the ability under s.28 of the Regulation to reinstate to a position from which an employee was regressed. Regression in position, rank and pay was a serious step for an employer to contemplate as it denoted (as was the position in this appeal), the extinction of a basic element of the relationship between an employee and employer, that being trust. 36It was submitted that the evidence, and particularly the transcript of interview between Ms Norman and Mr Brown, the Investigating Officer, provided no comfort to STA and no confidence that if Ms Norman was placed back as a BOT1, either at the Order of the Board, or in the future, that she would do other than as she determined without reference to the procedures and guidelines of STA. However it was emphasised that there was no issue as to Ms Norman's performance or ability as a Bus Operator. 37It was submitted that the element of trust, essential to the relationship between an employer and an employee was absent and there was no evidence that Ms Norman was either able, or willing, to restore that element in the future. 38It was submitted that the issue of whether a regression was in fact a dismissal had been well canvassed such decisions as Antonic v Roads and Traffic Authority [2005] NSWIRComm 344 (at p94) where it was held that a temporary or permanent demotion of an employee for disciplinary reasons was not breach of the fundamental terms of the contract of employment, did not constitute a repudiation by the employer of the essential terms of the contract of employment, and as a consequence did not constitute a dismissal. See also Australian Liquor, Hospitality & Miscellaneous Workers Union, New South Wales Branch (on Behalf of Brooks) v City of Sydney RSL [2002] NSWIRComm 1013. 39It was submitted the Regulation provided an explicit right to STA to impose specific punishments including a reduction in position, rank or grade and pay or demotion and in this matter STA had exercised its discretion to demote Ms Norman as the appropriate punishment rather than dismiss. Ms Norman was employed in a position of trust and in a position in which adherence to procedure and guidelines was paramount and essential to the training of Bus Operators and to the continuing safety of those Trainees, members of travelling public and other road users. Reliance was also placed on Wheeler v RailCorp [2011] NSWTAB 21 on the issue of trust and demotion. 40Further, Ms Norman had demonstrated through her history, her attitude during the TAB-ordered training and the matter currently before the Board not that she cannot, but that she will not, follow the State Transit training requirements of a BOT1. 41Reference was also made to the evidence of Ms Norman and her reliance on the 37 letters of commendation she had received and it was pointed out that these all concerned her bus driving, with only one letter referring to her role as a trainer and which also referred to BOT2s and other BOT1s on loan. Further, the references from Trainees relied upon were from 2009 and not of a current time period. 42It was also submitted that while Ms Norman had referred to training some 700 TBO's, with that figure obtained from STA's Head Office systems there was no evidence of such before the Board, although it was conceded that both she and Mr Meredith and Mr Juma would have each trained a considerable number of Trainees, and possibly hundreds. It was also conceded that Ms Norman had been involved in the training undertaken at Head Office as a facilitator, as had Mr Meredith and Mr Juma and other BOT1s, but it was also pointed out that this involvement occurred when she was under supervision and instruction. 43It was also submitted that the question of administrative fairness was not raised and the Board was entitled to assume that Ms Norman was afforded all procedural justice and fairness. 44In conclusion, it was submitted that, based on the evidence, the Board should decline to intervene in STA's decision to regress Ms Norman. 45Alternatively, if the Board determined that there should be a modification of the punishment it should consider the following; No reinstatement or placement in the position of a BOT1 other than by Ms Norman successfully applying for a vacant position and obtaining the position on merit. The imposition of a period of time, two years, when Ms Norman cannot apply for any BOT1 position and thereafter may apply for such positions. 46The Board asked Mr Hanson if regression to a Bus Operator would preclude Ms Norman from being approached by Head Office to act as a facilitator at the Strawberry Hills training centre (as she had in the past) and he responded that she would not, nor would she be precluded from applying for any positions within Head office on a merit basis. 47In reply to the RTBU's submissions Mr Hanson rejected the contention that reliance for the regression of Ms Norman had only been placed on the two discrete checks. Mr Browning's Investigation Report which found the allegations proven (but did not recommend any punishment), was based on all the information before him, (as set out in the documentation attached to his statement), including the disciplinary interview with Ms Norman. 48The submissions of the RTBU concerning Ms Norman being rated highly during the pilot program with which she was involved were also rejected on the basis that this was only introduced during submissions and not during the evidence and there had been no opportunity to cross-examine. That evidence should not be admitted. 49Mr Hanson also emphasised that it was incontrovertible that Ms Norman was competent and had successfully completed the Certificate IV training. Where STA had the difficulty, and as the evidence showed (such as that of Mr Prieto), it was not her ability to train under supervision that was in question, but what happened when she was unsupervised as evidenced by the two discrete checks. Submissions on behalf of the Appellant 50The RTBU also made oral submissions in addition to the written submissions as filed (Exhibit 2) 51It was submitted that Ms Norman had over five years' experience as a Bus Operator Trainer Level 1. Trainees having the benefit of Ms Norman's training had been equally, if not more, successful than those trained by other BOT1s with STA. She was respected by Supervisors and Trainees alike when teaching the STA Skills Development course which had involved over 700 drivers. Ms Hopkins' evidence confirmed that Ms Norman created an environment that encouraged participation, feedback and initiative and she did ask her to assist with candidates in the course on occasion. 52Further, Ms Norman's excellent driving skills were illustrated in her latest Vigil driving report which was virtually a perfect score, and, together with excellent training skills, made her an ideal choice to deliver Bus Driver training at the BOT1 level. She had successfully completed the Certificate IV Assessment and WorkplaceTraining (2006). STA as a Registered Training Organisation (RTO) had deemed Ms Norman competent in all units of the Certificate, and not just partially or conditionally competent, but competent. 53Ms Norman had previously received a Certificate of Recognition, being the CEO Special Award 2007 and had also received in excess of 30 commendations from STA Management, mostly as a result of customer feedback. 54As a result of two discreet checks STA Management had regressed Ms Norman to the position of Bus Operator Level 2. 55It was submitted that Ms Norman had always followed the Training Pack accurately and this was the case with Trainee Danny Lorentzen who was being trained by her on the days of the discreet checks. She always adhered to the Driver's Journal Instructions when conducting the training. 56The RTBU submitted that while the catalyst for the Report that led to this regression were the discreet check reports, almost any discreet check would reveal possible areas for improvement in a Driver or a Trainer. 57Further, the evidence of the BOT3s clearly stated that they did not view the training program for the day and therefore they could not have known where Ms Norman was up to in the training or be aware of any special needs of the Trainee. The correct procedure would have, and should have been, that the BOT3s checked with Brookvale management and the BOT3 at that Depot would have been able to discretely pass on that information. 58It was submitted that Ms Norman had successfully explained the circumstances involved in many of the discreet check observations. Further, neither of the BOT 3s conducting the discreet checks suggested that she could not, or should not, perform the training role. 59It was also submitted that the actual charges that Mr Larosa, the Brookvale Depot Manager, listed on the E1 left considerable doubt as to whether there was any misconduct, let alone any serious misconduct. There would seem to be trivial points in Charge 1 which referred to "failing to instruct", and Charge 2 listed mostly "failed to instruct". This was a confusing contradiction. 60Mr Larosa also conceded in oral evidence that Ms Norman was a good trainer and he had never had any serious problems with her. This was surely a measure of the thorough and correct training given by her. 61The RTBU had never seen formal discipline charges based on such observations as the discrete checks. Ms Norman had received no disciplinary warnings from STA suggesting any problems or misconduct in these areas. 62It was also submitted that there was no training documentation that instructed that how a BOT1 was to deliver training (that is no script) and these instructions were passed down by experienced BOT1s to new appointees using a "buddy" system. There were no written instructions on what to say during training, or when. Ms Norman did follow a check list provided to by her buddy trainer Carlos Prieto and was using this checklist at the time of the discreet checks. 63The RTBU submitted that Mr Browning's evidence was that he was unsure if his department provided a daily check list for BOT1s and he could not find such in the Module 3 training pack he submitted in evidence. He also said that assessments should be done on day 5 but conceded it could be done on other days and the two BOT3s also gave conflicting evidence on this issue. 64It was submitted that if Ms Norman had been deemed to be speaking at the wrong time during the training she would have no way of knowing how this would breach guidelines as it was reiterated that there was no script for a BOT1 to follow. 65The STA had contended that Ms Norman had demonstrated a continuing inability to conduct training within the specified guidelines required by STA. However there was no evidence of her continuing inability to conduct training and Ms Norman had been deemed competent during training and assessments. It was also submitted that apart from Mr Browning's evidence about a form of training timetable (which was accepted as being only for the benefit of his evidence) no formal list had ever been given to either Ms Norman or any other BOT1. 66Even if Ms Norman had knowingly deviated from the course materials, which the RTBU strongly suggested she had not, then the punishment of permanent regression for the charges, unsupported by any Trainee or passenger complaint, would be unprecedented in its harshness. 67The RTBU submitted that the STA could not rely on Ms Norman's disciplinary history going back to 2004 as that history had concerned allegations that resulted in disciplinary action that resulted in an appeal which was upheld by the TAB and the allegations were found not to be not to be proven. That TAB decision had led to Ms Norman's retraining. 68STA also argued that Ms Norman had an attitude which caused her to deviate from training guidelines. However in Ms Norman's Training Report as completed by Carlos Prieto on 20 April 2011, Mr Prieto stated "I can only describe it as excellent. You are always early, well prepared, thorough in your training, helpful and supportive to the trainee, you conduct yourself in a professional manner at times, 24/7 role model with excellent customer service skills". It was submitted that the report from Carlos Prieto, a BOT1 at Willoughby Depot, was a favourable recommendation. Further the only deviation detectable was Ms Norman's enthusiasm. 69Mr Way also advised the Board that although Ms Norman was still on the roster for training at Strawberry Hills she had not been called upon to conduct this course since January 2010. 70In conclusion the RTBU, on behalf of Ms Norman, submitted that she constantly followed STA's training requirements in detail, and her appeal should be allowed by the Board. 71The RTBU also sought Orders that that a formal training program specifically for BOT1s, including an exact schedule of what is to be trained and including the paperwork in the classroom, be developed by STA in addition to the existing Depot buddy system, and that this be rolled out for both new and existing BOT1s. Evidence 72STA's evidence before the Board was contained the Investigation Report (attached to Mr Browning's statement (Exhibit 7) and other Annexures (1-12) which included, inter alia, Ms Norman's training history arising from the previous TAB decision, Ms Norman's written response to the Form E1, the record of her Disciplinary Interview, and the reports of the BOT3s, and Statements from the following STA employees: Madeleine Hopkins.....Learning and Development Consultant (Exhibit 3), David Browning..........Manager Registered Training Organisation STA (Exhibit 6 & 7), Domenic Larosa...... ..Depot Manager Brookvale (Exhibit 8), Graham Meredith ......Acting Learning & Development Manager (Exhibit 4), Esat Juma .................Bus Operator Trainer Level 3 (Exhibit 5). 73Mr Browning has been with STA since 2011 and is a qualified and experienced trainer of some years experience, including 22 years previous experience with STA. His evidence dealt with the position of STA as a Registered Training Organisation (RTO) and just what that involves; the training requirements for Trainee Bus Operators as set out in Module 3 which is a 5 day training period and applicable to all Trainees at all Depots; as well as the various Bus Operator Trainer Levels (1 to 3) and what each involved. He also included in his statement (at paragraph 14) an approximately one page breakdown of the daily duties as extracted by staff on his behalf from the 24 pages that comprise Module 3 "Driver Support" Assessment Record Pack . 74His evidence also covered the investigation he conducted into the allegations against Ms Norman as set out in his Investigation Report. His Report Summary/Conclusion read as follows: The information and attachments provided to support the background section of this report, demonstrates the extensive efforts by State Transit to ensure that CN has the required knowledge and skills to provide quality training as a BOT1. BOT3 Graham Meredith and BOT3 Esat Juma are senior depot trainers, who also have experience in undertaking the duties of a BOT1. On 2 separate occasions, these trainers were able to discreetly observe CN undertaking her duties as a BOT1. Based on the evidence gathered from 2 trips on 2 separate days by 2 different BOT3, there is a clear indication that CN would most likely have replicated the reported behaviour over the five (5) day in-service training period provided to this TBO. An analysis of the attachments has identified that when supervised, CN is capable of delivering BOT1 training in accordance with State Transit requirements. However, all reports and the Record of Interview also identify consistent issues regarding CN's propensity not to follow guidelines and instructions. Based on the two discreet reports that formed the basis of the charges and the Record of Interview, it is evident that when unsupervised, CN will not undertake BOT1 duties in accordance with State Transit requirements and in deliberate violation of the performance requirement specified for her return to BOT1 duties. On the basis of the attached reports, the 2 discreet checks and the Record of Interview, I have concluded that CN cannot be trusted to undertake BOT1 training duties to the standard required by State Transit. 75Mr Browning maintained that the assessment phase of Module 3 would generally commence at around day 4, although with some Trainees it could go to day 5, however assessment must be undertaken on day 5 if it had not already commenced. He also indicated that for OH&S for customer service this was a formative assessment as to a Trainee proceeding satisfactorily not a final summative assessment which would result in determination of competency. Only two units of competencey were signed off in Module 3. He also confirmed that if there was an issue with a trainee then the BOT1 would provide further training assessment and that would be an initial diagnostic assessment. 76On the issue of kneeling the bus and the omissions observed by BOT3 Juma in this regard Mr Browning did not agree that for Ms Norman to not give instruction at this stage as she was conducting an assessment was following the correct procedure. He essentially maintained that that the role of a trainer in any given situation was to assess the progress of the trainee (not conduct an "assessment" in the nationally recognised sense) and in that instance particularly where a safety issue was involved it was imperative that the trainer take remedial action and stop the assessment, tell the trainee why and work on a plan to remediate the problem. 77He went on to say that it was up to the discretion of the BOT1 but that if a trainee repeatedly did not use the kneeling advice they should be saying to the Trainee " "You've got a kneeling device, that person was old or has some sort of infirmity you should be kneeling the bus." Kneeling the bus was part of STA's customer service. 78Mr Browning confirmed that he based his findings in the Investigation Report on the discrete checks by the BOT3 and the responses by Ms Norman in his interview with her. 79Mr Browning did not consider that there should be set criteria/guidelines for discrete checks carried out on BOT1s and had not issued such. The only consistency was that they should be discrete. He did not see the need for the person conducting the discrete check to be aware of which particular day it was of the five days' training. Their role was to observe and report on what they saw and he preferred that they go in without bias and just report on what they saw. 80He also maintained that if the discrete check was being done on day 5 during the assessment stage then that would be readily apparent to the BOT3 as based on a competent BOT1 their intervention would be virtually zero in terms of communication, and if the discrete was being conducted on day 1 then there would be a lot more intervention depending on the trainee. He considered that it would be it was irrelevant for either of the BOT3s to have known what day Ms Norman was up to as they had both been BOT1s before and he would expect them to have the ability once they boarded the bus to determine that based on the training or assessment provided by the BOT1 being observed. 81Mr Browning was also directed to the training observations made by Carlos Prieto concerning Ms Norman and acknowledged that there were favourable comments and said that whilst she was being observed by Carlos Prieto she performed all her duties satisfactorily, under supervision. She was also aware that she was under observation by Mr Prieto. 82He also indicated that he considered that the summary document provided by Mr Prieto to Ms Norman was something he had produced himself as a summary of the evidence requirements of Module 3, it was not an STA document. 83Ms Hopkins also holds appropriate training qualifications. Her evidence essentially expanded on the observations she had made in her report to the Brookvale Depot Manager as to the outcome of Ms Norman's further Certificate IV training, and gave more detail as to the actual interventions made by Ms Norman during the training sessions. She indicated that Ms Norman was aware that she was not to be an active participant in the exercise as all those being trained were told whether they would be participants and what role/task they would have. She had no doubt that Ms Norman took on a role to which she was not allocated. 84Ms Hopkins acknowledged that whilst training she did sometimes consult Ms Norman about particular paperwork as her experience did not cover that and Ms Norman had good explaining skills. She did not consider that she called on Ms Norman's assistance any more that she called on other participants. She agreed that she would occasionally go back to Ms Norman if a participant could not answer a question but also maintained she would do that with others, depending on what she thought or knew about a particular participant's skill or experience in certain areas. She also indicated that, for example, she might go to Ms Norman three times and to other people once. She acknowledged that Ms Norman had a higher level of knowledge but expertise she could not comment on as she had not seen her working and didn't know how she applied her knowledge. 85She also acknowledged that Ms Norman had assisted on an occasion when the classes were split in two, but could not recall whether it was during that particular course or an earlier course. She also did not know whether when Ms Norman assisted her whether she had access to her script because she might just have them go through some open and closed questions. She agreed that if there were no written guidelines Ms Norman wouldn't know if she wasn't following them but went on to say that "you see they've got to learn a resource when they go through so the guidelines are there". 86When asked whether it would assist if a Trainer or BOT1 had a script to deliver she responded as follows: A. Well I guess, I mean as far as I'm concerned when I'm running training I have got a kind the script and any trainer who's worth their salt will have a kind of script to follow, they have to, because otherwise you're going to get non-compliance and those scripts that are written are written in compliance with the units of competency so everything that you are doing has to relate back to that unit of competency so therefore the training notes that you use and the resources that you use have to always go back to that unit of competency so if you're a BOT1 or a BOT2 or a BOT3 whatever you're training you have got a kind of a script so that script should be read in conjunction with that unit of competency and that's what they're learning to do, to marry the two up. 87She also agreed that that when Ms Norman conducted training and assessment in the classroom that were done to RTO standards and done very well. 88Mr Larosa has been the Depot Manager at Brookvale since the beginning of June 2011, prior to that he was the Depot Manager at Mona Vale. He initiated STA's disciplinary process after becoming aware of the allegations against Ms Norman. On receipt of Mr Browning's Investigation Report and after reviewing her history he determined that she should not hole the position of Bus Operator Trainer level 1. 89Mr Larosa acknowledged that Ms Norman's Trainees generally drove safely. 90Mr Larosa believed discrete checks were done on everyone, that is Bus Operators and BOT1s and 2s, and those involved in driving or instructing people to drive. They could also arise as a result of a complaint from a Trainee or a customer or as a result of information that was provided. If he had an issue with a Trainer he would go to the BOT3 and they may need to do a discrete check. He had never asked for a discrete check to be carried out. Discrete checks on a BOT1 would normally go to the BOT3 who controlled all training. He did not agree that a large number of discrete checks came back with areas for improvement. There might be room for improvement, but that would depend on the individual. He said he would expect to be made aware of discrete checks done at the Brookvale Depot but would not be aware of the discrete checks done at other Depots. 91He did not consider the punishment imposed on Ms Norman was harsh as she had been given opportunity in the past, they had invested a lot of money in her and things had not improved. He was not in a position to say what had not improved. He acknowledged that his decision was based on the discrete checks undertaken by the two BOT3s Meredith and Juma. 92Mr Meredith and Mr Juma had been employed by STA since 2004 and 2005 respectively. Both had been BOT1s before becoming BOT3s. Mr Meredith has also been acting as a Learning and Development Advisor since June 2011. 93Neither of the BOT3s had seen the BOT1 Training Plan for the day on which they respectively conducted the discrete check but both acknowledged that the training plan was the same in each Depot and that they did not need to know which day of the 5 days plan it was. 94Mr Meredith indicated that during the discrete check he was sitting on the left side of the bus immediately in front of the rear doors. Mr Juma indicated that on his discrete check he was also sitting on the left side of the bus but where the wheelchair access seats were located and adjoining the 'ironing board'. They both reported that Ms Norman was seated in the one front seat on the left (the usual seat for a BOT1) and that they were very well able to hear her voice. 95They both essentially confirmed the observations they had made and as they reported. 96Mr Meredith added the following summary to the other observations made in his discrete check (Exhibit 4-1): To summarise, Catherine needs to let the Trainee Bus Operator think for himself when making driving decisions. Unless a safety issue, Catherine should not distract the TBO whilst he is driving with idle conversation and information. I believe Catherine likes to assert her authority in the public eye, this could alienate/distract TBO's and make passengers concerned and uncomfortable while drawing unnecessary attention to the TBO. 97Mr Meredith had not carried out a discrete check on a BOT1 before but was aware of discrete checks on other BOT1's. He did not agree that it was completely different to a discrete check done on a Bus Operator, both were done on the relevant criteria applicable to the position. 98Mr Meredith acknowledged that there were no positive comments in his report. He had not read Ms Norman's statement or seen her response to his observations and he did not consider that there was any plausible explanation based on what he had observed, nor was he aware of any extenuating circumstances (for example the problem with the bus as identified at the Depot). He was also unaware that it was the first stop for the bus when he got on, but regardless of whether it was the first stop, the AFC should have been set up. 99He also acknowledged that he was aware of the local protocol in relation to the Dee Why stop, the issue he observed was not why it was instructed but the way it was instructed whilst they were still in traffic and driving. 100He acknowledged that not all Trainees progressed at the same rate and did not consider that he should have reviewed the Trainee's programme before conducting the discrete check. There was no script, but Module 3 was followed which takes one through various competencies. If a person was showing a particular weakness they might be given more training and they would not be assessed until they were showing they could perform Assessments were generally completed on day 4 and 5. If a Trainee was not ready at the end of day 3 you might hold your assessments or even have to ask for a further days training that would have to be approved by management. 101Mr Juma had carried out discrete checks on BOT1s and Bus Operators and was aware of discrete checks being carried out on other BOT1s. They were never told why the check was necessary and would just check everything. Sometimes with a Bus Operator they got reports about a complaint and would check a particular issue. 102He also had not read Ms Norman's statement and was not aware of her responses to his observations. He did not see the relevance of any local agreement as he was assessing the training and assessment that was being carried out in accordance with Module 3. 103Mr Juma also confirmed that training was done over days 1, 2 and 3 and assessments on days 4 and 5. The pre-assessment could be done on the first day or day 4 (he preferred to it on day 1 so that the TBO was aware they were going to be assessed). He did go on to say that if a Trainee was doing really well then you could start assessing on day 3, but basically assessment took place on day 4 and 5. 104He did not consider it necessary to know whether Ms Norman was doing training or assessment, but in both cases she should have let the trainee know if they are performing up to standard or not. If she was training then she would tell him 'you didn't kneel the bus you need to kneel the bus' - training. If she was assessing, the assessment would stop there because he did not perform OH&S and they would do the assessment some other time. 105In his opinion Ms Norman was training on that day of the discrete check. If she was assessing then she was not assessing properly. If someone kept failing to do something then you would stop the assessment. 106Mr Juma maintained that from where he was sitting he could monitor the whole thing, see what the driver was doing from the mirror and see the kerb, he was right next to the kerb. He believed there was no problem with the Trainee getting close to the kerb and kneeling the bus, the main ones that he was supposed to be getting close to the kerb and kneeling the bus he didn't do it. He maintained he had a good view. 107 The RTBU called Ms Norman to give oral evidence in addition to her statement as filed (Exhibit 9 plus attachments 1 to 10 of Exhibit 2) . 108A statement had also been filed by the RTBU on behalf of Danny Lorentzen who was required for cross examination by STA. As he did not appear before the Board the objection to the admission of his statement was upheld. 109Ms Norman's evidence was that prior to joining STA she had worked in the banking industry for some 19 years, as a Regional Investigations Officer SouthEast Asia for Citibank and then as a Business Analyst for the Commonwealth Bank. Since commencing with STA she had acted as a training facilitator for five years at Strawberry Hills for the Bus Operator Skills Development course. She had previously been a Relief BOT1 at Brookvale. In total she had been a BOT1 over 5 1/2 years and considered herself to be an experienced and qualified Bus Operator and Bus Operator Trainer. 110She was asked to undertake training of Trainee Bus Operator Danny Lorentzen from 12 July 2011 until 15 July 2011 and 18 July 2011, a total of five days at Mona Vale Depot, which she did. She followed a set training plan shown to her during her training session with Carlos Prieto BOT1 Willoughby Depot (Exhibit 2-7). Throughout the week she gathered evidence in accordance with RTO requirements and the STA training package. She completed assessment points based on observations, questions and as demonstrated by the TBO accurately and submitted these to Scott Greenow her BOT3 on Tuesday, 19 July 2011. Throughout the week she monitored accurately the TBO's trip progress. She subsequently learnt of his commendation in the August edition of the 'Transit Times' (Exhibit 2-9). 111She had never knowingly deviated from the training programme and had been proud of her efforts in ensuring attention to detail in every aspect of the training package. Every point in the training package was imparted to the Trainees in detail. She had never received any written instructions as to what to say and when, whilst delivering BOT1 training, especially while in the bus. She had also been asked by the STA to assist with the skills development program back in 2008 after receiving the CEO's Special Award for training on the previous course. STA regarded her training to be of a high standard and she was asked to pilot the new course. 112She also ensured that she used the exact evidence checklist that was given to her by Carlos Prieto when she did her BOT1 training. 113She stated that she applied herself with genuine enthusiasm to every Trainee and never disregarded guidelines. Most of the Trainees under her instruction over the years were still with STA and were excellent bus drivers which STA maintained was the main goal. Her commitment to implementing STA's training package as per every guideline issued was as strong as ever. 114The set training plan as given to her by Carlos Prieto was as follows (Exhibit 2-7): EVIDENCE - MODULE 3 Conduct Financial Transactions - TLIQ107D Element 1: Status Report - Time & Bus. No. (circled) Element 2: Torus Report - Cancelled Tickets (circled) Element 3: Shift Report - Amount to be paid in (circled) Element 4: Torus Report - Balance (circled) Process Workplace Documentation - TLIE807C Workplace Request (form 420) Leave Application (form 120a) Exchange of Work (form 175) Copy of both sides of the Journal (5 days) Carry Out Basic Workplace Calculations - TLIE507C Element 1: Torus Report - ticket cash sales (circled) Element 2: Journal - trip timing points (circled) Element 3: Ticket Report - expiry date & validity (cicled) 115Ms Norman was taken through each of the issues raised by the BOT3s Meredith and Juma that are set out in the Particulars of Charges in the Form E1 and provided her explanation in response to each bullet point (see paragraph 14 of Background and Chronology above) in some detail. 116In response to Charge 1 (Mr Meredith's discrete check) her responses may be summarised as follows: During the pre-departure check there was identification of a faulty exterior panel with a sharp edge (by the TBO) on the bus prior to leaving the Depot, the bus had been signed on, issue taken to Duty Officer, attempts to obtain another bus or have a mechanic remedy the situation, told service cancelled if bus not taken out, Ms Norman not happy but made decision to take bus out, told to 'special' to first stop, TBO partially signed on, (AFC jumps to next AFC but wrong trip), told TBO to get to starting point and don't open doors, AFC had to be 'backtracked' to previous trip to start again, when AFC ready doors opened. She could not verify the comment about the weather, does not start personal conversations, one of TBO's traits to converse when worried. Agreed instructed TBO to raise bus at first speed hump, he had expressed concerns previous day re driving 12m bus, speed hump 'quite sharp' could cause damage to bus. Instruction navigating right hand turn given, had consulted BOT2, BOT2 'openly admitted' had run out of time to do a lot of cornering activities, in particular Spit Hill, driving L85 in peak hour, instruction on first couple of corners then he'd be fine. Did not discuss property development, TBO initiated conversation pointing out where he lived, she considered that normal. Journal updated whilst at bus stop, every likelihood they were picking up passengers and she would have said while you're here update Journal, difficult to save all timing points, key part of TBO job accurate timing, paid overtime from it, important to train TBO on use of Journal from day 1. Spoke to TBO about hitting gutter - followed instructions of Carlos Prieto in his Feedback - 'Things You Should Keep Doing', critical to training to point out errors to TBO to prevent it escalating, and discuss later as part of feedback. Comments about school zones taken from specific instruction of Carlos Prieto re "driving with purpose" and taken from manual set of notes she made when observing Carlos Prieto, no training manual issued, reliant on methods given to her by word of mouth as shown in training by BOT1. Spoke to TBO about OH&S session training at Dee Why Grand bus stop, pre-assessment check done that day, needed to know actual schedule, TBO tends to become distracted, bus not in motion. Had to instruct TBO to drive in middle lane due to stationary bus left lane, another bus behind with tail hanging out, had to instruct TBO to go around, safety issue. 117Ms Norman disagreed with Mr Meredith's summary as set out in the discrete checks and said that he had boarded the bus without doing any prior homework; had not consulted the BOT2; the TBO had confidence issues; he contradicted himself by saying she should not intervene; there were safety issues; she denied initiating conversations, only comments made were in service; she used 'directive language' when teaching, particularly as a female Bus Operator in male dominated profession, she needed to ensure being assertive otherwise not listened to; not aggressive, and trained with TBO's interests. 118Ms Norman maintained that she had never received any complaint from a Trainee or a customer. 119In response to the observations made by BOT3 Juma (in the same order as in the Charge 2 Particulars) Ms Norman's evidence may be summarised as follows: Formative assessment being undertaken, the BOT3 unaware of this, from his position could not see she had paperwork on her knee, doubted he could see whether bus needed to be kneeled from that position, had spoken to TBO once re corrective action and stopped assessment (at Dee Why, Howard Ave),kept manual notes, had better view than BOT3. Did not see TBO changing sections while driving, questioned whether BOT3 could see that from his position, one of ground rules she stresses to TBO's as given by Carlos Prieto was to keep hands on wheel at all times, if she saw it she would have corrected it. OH&S assessment still running but could discuss training topics, stationary at lights at Dee Why Howard Ave after picking up passengers, blind person with guide dog on pedestrian crossing, not often the chance to observe this on training, perfect opportunity to ask TBO what to do with blind person boarding bus and he explained, important to deal with issues re disabled passengers. Did give feedback of "well done" to TBO coming down Spit Hill, not heard by BOT3 due to sitting behind ironing board, encouragement always given. She would have said this once they cleared the corner. Her footnote on assessment was "well done, Danny for waking sleeping passenger", this contradicted BOT3, TBO had woken him up and done it of his own accord. 120Ms Norman had never seen a check list such as the one set out in Mr Browning's statement (Exhibit 6) and maintained there was nothing like a check list or guide for Trainers and no standard with which to measure when doing a discrete check, and used the analogy of 'Chinese whispers' in relation to the passing on of information. She relied on Carlos Prieto's instructions. STA's reliance of word of mouth training could lead to misinformation or incorrect procedures being passed on. 121Ms Norman maintained Trainees enjoyed working with her; they still referred back to her after training; her training was well planned and followed the notes and instructions she received during her BOT1 training under the 'buddy system'; she stated clear ground rules at the outset; had clear communication and good instructions; regarded OH&S as highest priority; remained calm and ensured Trainees learnt from mistakes and reinforced lessons; conducted assessments correctly and within designated timeframes and was very thorough and detailed as a Trainer. 122Ms Norman maintained that Carlos Prieto gathered his evidence throughout the five days of training and did not conduct assessments in a rigid timeframe and not necessarily only on day 5 and did so on days 3 and 4. Assessments relied on observation and if left to day 5 something could go wrong and extra time would be needed. 123Ms Norman maintained that the OH&S assessment she was conducting on day 3 (BOT3 Juma's Check) was an initial diagnostic assessment or summative assessment as provided for in Module 3. 124She agreed that the AFC was in full working order but said that it had partially been signed on and maintained that there was a "bug" with the programming of the AFC machines that when you signed off on a trip that had been cancelled it brought the next trip up automatically. She also agreed that when a bus left a Depot the AFC machine must be fully functional and it wasn't on that day (13 July). 125Ms Norman agreed that it was not OK to engage in non-work related conversation when driving a bus and that TBO's or BO's should not do timing points when driving, only when stationary at traffic lights or bus stops, but that Drivers should be updating their timing throughout their routes. 126Ms Norman agreed that she used the skills acquired during her Certificate IV training but said that there was no indication of what to do or when, no timetable, no schedule. Module 3 set out the criteria and units of competency to assess, but did not say at what point to assess or give a list of functions to teach in a logical order. She used the notes she took while observing Mr Prieto, but the pack itself did not give the routine for the day. She also indicated that she would have found the list set out in paragraph 14 of Mr Browning's second statement very useful if such existed. Findings 127This is an appeal under clause 32 of the Transport Administration (Staff) Regulation 2005 against STA's decision to impose the punishment of regression from Bus Operator Trainer Level 1 to Bus Operator Level 2 on Ms Norman. 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. 128Ms Norman in her Notice of Appeal has pleaded 'Not Guilty' and disputes the punishment imposed on her by RailCorp. The Board's function in this matter is to determine firstly, whether the conduct as alleged took place and secondly, to determine whether the disciplinary punishment imposed by the State Transit Authority in relation to such conduct is 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 enunciated in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. 129The Board has very carefully considered the evidence, and in particular all of the documentation in some detail, as well as the submissions of the parties in this appeal. The Boards does not intend to deal with each and every issue raised during the evidence however only those of sufficient relevance/significance to the Board's ultimate determination. 130The Board should indicate at the outset that the Board accepts the evidence of BOT3 Meredith and BOT3 Juma as to what they observed during Ms Norman's training of TBO Lorentzen on the two days in question. There is no evidence that they either knew Ms Norman previously, or were aware of why she needed to be discretely checked. They simply made observations. However they did not give any evidence as to any views they might have formed as to her competence as a Trainer or whether or not she should continue as a Trainer. In the circumstances that was probably appropriate with such a brief encounter and without any relevant background or context. 131The Board considers that unfortunately, generally, (with some exceptions) Ms Norman does not accept responsibility for any fault or failing she may have and blames others for what occurred or questioned the veracity of what was observed. For example, it was the TBO initiating conversation etc., BOT3 Juma could not have observed whether the bus could have been knelt from where he was sitting. Ms Norman's evidence will be commented on further below. 132However one of the considerable difficulties facing the Board is that there was no evidence whatsoever from Ms Norman's BOT3 at the Brookvale Depot, or the BOT3 and BOT2 at the Mona Vale Depot (the Depot of TBO Lorentzen), as to her training capabilities or the effectiveness or otherwise of the outcome for the TBO, or to confirm or reject issues raised by Ms Norman in her defence. The Board also notes that neither of those BOT3s or the BOT2 were interviewed by Mr Browning. The Board considers that they should have been. 133There was also no evidence whatsoever before the Board from any Trainee or Trainer as to any adverse outcome affecting any Trainee who had been trained by Ms Norman. TBO Lorentzen was evidently assessed by Ms Norman as competent as a consequence of the 5 day training she conducted. No different finding/conclusion or issue with that assessment has apparently been raised subsequently by anyone at STA, either at a Depot, or any other level. 134There was also no CCTV footage referred to in the investigation or in evidence before the Board. Some of the issues raised by the BOT3s in the discrete checks, and challenged by Ms Norman, could clearly have been readily possible of verification one way or another (for example - whether or not there was a passenger waiting to be picked up at the bus stop when she instructed the TBO to note the 1 minute late running, whether the bus was stationary at lights when the blind person with the guide dog was observed on the pedestrian crossing and whether the TBO was adjusting the AFC with his hands off the wheel whilst the bus was in motion etc,). 135If STA are going to impose the significant punishment of permanent regression on an employee, particularly from a BOT position (at any level), then the Board expects that during any investigation all possible available evidence should be taken into consideration, including any CCTV evidence available, and conduct interviews with all relevant persons. 136There was also no evidence before the Board as to whether TBO Lorentzen was the first Trainee to undergo training with Ms Norman following her re-certification and subsequent training/observation by BOT1 Carlos Prieto, or whether there had been other Trainees trained by her prior to TBO Lorentzen. BOT1 Prieto's training/observation was in late March/April 2011 and there was reference to a meeting with Depot management concerning her return to training duties on 9 May 2011, so the time period within which Ms Norman could conceivably have conducted actual training before the training with TBO Lorentzen on 12 to 18 July 2011, was some 9 weeks. The Board has no idea whatsoever as to whether or not Ms Norman was training TBO's during that period, how many and whether there were any issues/problems with that training or more importantly and relevantly the outcomes for any TBO's. The Board considers that to be a serious omission on the part of the evidentiary case mounted by both the RTBU and the STA. 137It would also have been of relevance to know for how long Ms Norman had actually been putting into practice, on her own, the benefits of the further training provided to her by STA (by way of how many Trainees she had had the opportunity of training) and what support she may have been provided with by the BOT3 at the Depot in that 9 week period. 138The Board also considers that Ms Norman does not in fact have extensive experience in actually training TBO's at the Depot level. While she has held the position of BOT1 for five and a half years (or possibly only just over 5 years), she has not actually carried out BOT1 training consistently over that five and a half year period. Prior to successfully being originally selected for a position of BOT1 (effective 6 November 2008) she had evidently been a relief BOT1 for almost the previous two years, (but again no evidence as to how much of that period was spent in actual training out at Depots), she was regressed to a Bus Operator at the beginning of October 2009, some eleven months later. She was successful in appealing that decision to the TAB in February 2010 and underwent further training on the orders of the Board. That involved firstly, the identification of her training needs as undertaken by BOT3 Grant Gumley and A/VET Supervisor Kevin Howard, and secondly, the Certificate IV training from Ms Hopkins. That took her right through 2010 and into the beginning of 2011. There is then the training/observation by BOT1 Prieto in March/April 2011 before she returns to BOT1 duties sometime after the meeting with Depot management on 9 May 2011. That means effectively there was a 20 month period, almost two years, in which Ms Norman was not in fact carrying out the training duties of a BOT1 at all and that is not counting the subsequent period after the Form E1 was issued to her on 3 August 2011 arising from the two discrete checks conducted in July 2011 and leading up to this appeal. 139The Board makes it clear that it has no issue whatsoever with the right, or indeed need, for STA to conduct discrete checks on both Bus Operators and Bus Operator Trainers as it sees fit. As the Board understands, discrete checks on Bus Operators generally arise as a consequence of a specific customer complaint (or perhaps after a pattern of a certain type of complaint) or as a result of an accident whilst in service that may be attributable to driver error. In that situation a specific issue or issues are being targeted for observation which may lead to either appropriate corrective/remedial action or disciplinary action, depending obviously on what is observed and the level of seriousness involved. 140In the case of a Bus Operator Trainer such a check might also arise from a complaint. In Ms Norman's case it was recommended and implemented as a follow up to the training she had undertaken and as a result of the reservation expressed by Ms Hopkins. 141The Board has no problem with such a discrete check being undertaken and for the BOT3s involved not to be told anything about why the check is required to avoid any prejudice or pre-judging. In that situation it may not necessarily have been appropriate to have spoken to the relevant Depot BOT3 before such a check in order that there be no bias or pre-judging. However the Board considers that each BOT3 (Meredith and Juma) should have subsequently had a discussion with the Depot BOT3, and indeed the relevant BOT2 who did the bus driving training, after the discrete check and before the presentation of their reports to Mr Browning in case there were any relevant observations/issues to have then been taken into account. 142It is the very firm view of the Board that such involvement of the relevant Depot BOT3 and BOT2 should also be the case arising from any discrete check of a BOT1 at any Depot in the future. 143The Board also considers that most definitely, Mr Browning, as part of his investigation, should have spoken to the relevant Depot BOT3s and the relevant BOT2 about the reports arising from the discrete checks and in the light of some of the information provided by Ms Norman in her written response and subsequent interview. TBO Lorentzen should also have been interviewed as part of the investigative process. 144The Board also has some difficulty with the training materials, or rather the lack of such materials, available to BOT1s. Module 3 sets out comprehensively the issues to be assessed, and indeed the method of assessment (observation and/or responses to questions). It does no more than that. It is not a lesson plan and it requires some backward extrapolation to arrive at just what activities need to be undertaken in the course of the training (but not necessarily the order of that training). Although the Board does consider that basic logic and commonsense would clearly suggest an appropriate order to be followed in the training of a person to drive a bus in service. 145The list that Mr Browning had his staff extract from the information contained in Module 3 the Board considers to be extremely useful and a potentially valuable check list that could be used by BOT1s in the future. 146The Board notes that BOT1 Carlos Prieto in his Report of his observation of Ms Norman's Module 1 training on the 21 March 2011, after noting the 6 'Things to keep doing' and the 9 'Things to improve', went on to suggest the following 'TIPS' (Exhibit 7-6) : Make a list of each area and write down what you have to tell the trainee. (Emphasis added) Example 1 REVENUE ROOM 1.Pay in machine 2.Night safe 3.Cancellation box 4.Paper 5.etc. etc. Example 2 Duty Officers Room 1.Pick up Journal 2.First Aid Kit 3.Late Running 4.MSDS 5.etc. etc. Have an induction plan/lesson plan to help you stay focused. (Emphasis added) Mix up methods used for training Add some shorter breaks to help the trainee focus. Focus on the "Must Knows" 147Thus, this is a BOT1 who has obviously formulated and developed some sort of written guidelines to assist himself (and also assist those BOT1s he might be buddying) and more relevantly for the Board's consideration actually advised Ms Norman that she should have such written aides. 148It is also apparent from Ms Norman's evidence that she made notes of what she observed about how BOT1 Prieto conducted his training and said that she followed those notes in her training, together with the list he gave her (Exhibit 2-7), which essentially sets out the evidence to be gathered over Module 3. In the Board's view what Ms Norman has essentially done is to follow the advice given to her by BOT1 Prieto. 149The Board therefore fails to see how Ms Norman has departed from STA training materials and guidelines. 150However the Board notes that the 'Evidence-Module 3' can not be regarded, and should not be regarded, by Ms Norman as a training plan of itself. It is simply a checklist of that documentary material that needs to be collated (and from whence it is obtained) by the Trainee. It is a very useful document, but it is nevertheless not a training plan. 151It seems clear to the Board that the use of a 'Buddy' system of BOT1s training other BOT1s can, and must, lead to variations from individual to individual in exactly how such persons go about their training, what order they might do things in, what they might emphasis etc. In the absence of any training materials being provide other than the formal Module documentation they may well be also making notes for their own and their buddy's use. The Board would suggest that this would not be an unusual or uncommon practice no matter what the occupation. It would be fairly standard for a person being mentored/assisted/trained by a "buddy" system to make notes of the information/advice they were given and to follow that in the future. In the Board's experience this is what actually happens in a whole host of occupations. 152Obviously within STA that training is done within the context of the relevant Modules, but they themselves (and Module 1 was not in evidence before the Board) do not set out a step by step lesson plan for Trainers to follow. This makes it difficult for the Board to assess the evidence as to Ms Norman's alleged failures/omissions and departures from STA materials, particularly in the absence of any evidence as to any negative/adverse impact/effect on any TBO arising therefrom. 153The Board also notes the particularly relevant evidence of Ms Hopkins on this very issue as detailed in the extract of the transcript of her evidence as set out above. 154The Board (as indicated to the parties during the hearing) does have a training background both immediately prior to appointment to the Industrial Relations Commission and from an earlier employment background including relevant qualifications (but certainly not recent) and is very much aware of the requirements of the Vocational Education system as it has evolved over recent years. Issues involving training have also arisen in matters coming before me both sitting as a Transport Appeal Board or as the Industrial Commission. The Board as currently constituted does not certainly claim to be an expert on such training matters however. 155That is not to say that the Board accepts all the evidence of Ms Norman, or does not consider that there are issues of concern that need to be addressed by her. 156The Board considers that frankly Ms Norman talks too much during her training. Her tendency to be loquacious was also evident in her somewhat lengthy responses to Mr Browning during the disciplinary interview and also in her responses before the Board and she also clearly holds firm views and opinions about training matters. 157There is also no doubt whatsoever that she is a very intelligent, enthusiastic and articulate person and a very knowledgeable Bus Operator and Trainer. That was acknowledged by all concerned. However it is not necessary for her to demonstrate all of her knowledge either at large or in her training. What she needs to concentrate on is what knowledge is necessary to impart to a TBO at each relevant stage, not what she can impart based on all the knowledge she possesses. The Board also notes that this was an observation made and reinforced by management during the meeting of 9 May 2011 and was also specifically referred to by BOT1 Prieto when he observed in his Module 3 Report she should not give too much information while the Trainee was operating a bus or it would not be absorbed. She was also advised by him to allow the Trainee to rest during Rest Time and not turn every spare minute into a training session (unless she had time to do both). He had previously observed in his Module 1 Report that she should "explain to the trainee the "Must Knows" first and let the "Should Knows" and "Could Knows" take care of themselves later. He had also commented on the fact that she changed the subject too often at times and also gave too much information too soon. 158This tendency had also been a noticeable feature that had been observed by A/VET Supervisor Brown and BOT3 Gumley when they assessed her training needs in early 2010. The management meeting of 9 May 2011 had also stressed to Ms Norman that she should keep her "running commentary to herself and allow the Trainee to concentrate on driving." BOT1 Prieto also made reference to using the pointers available for the right and left turns rather than giving verbal instructions. 159As to the issue of Ms Norman's assertion that she was conducting an assessment of TBO Lorentzen on day 3, the Board has doubts as to whether this should have been done even if Ms Norman's evidence is accepted. 160Given the issues she raised about the TBO (driving a 12m bus for the first time on day 2, the BOT2 commenting to her about the TBO's weakness with turning, and her comments about his confidence) the Board would have thought that this was clearly a Trainee who would have required all of the first three days (if not longer) being devoted to training before commencing the assessment stage. In addition, given one of the issues raised by BOT3 Juma (on day 3) in his Report (not kneeling the bus) this was further confirmation that this was not a Trainee ready to start the assessment stage on day 3. 161The evidence from STA's witnesses is clear that assessments do not commence until day 4 and have to be completed by day 5. Both BOT3s said they commenced assessments on day 4. However BOT3 Juma said that if a Trainee was doing "very well" then one might start assessments on day 3. BOT3 Meredith said that at the end of day 3 if a Trainee was not ready then one might "hold" the assessment and not start on day 4. Mr Browning's evidence was that assessment had to be done on day 5, that being the last day of the five days' training, but did not preclude training commencing on day 4. 162The Board does have concerns with Ms Norman's evidence and accepts that she was engaging in both inappropriate conversation (the weather, the building development), and unnecessary conversation (all the limited stops on the L 85 Route) with the TBO. 163Essentially Ms Norman maintained that the TBO initiated conversation and that she set ground rules about conversation whilst driving. If this was the case then he was not following those ground rules and should have been pulled up about that. Even if Ms Norman's evidence was accepted - which the Board is not prepared to do in relation to each conversation, then surely it was her responsibility as the Trainer to ensure that the TBO did not engage in inappropriate/unnecessary conversation. That could have been done by simply saying "no conversation/talking please", or holding her hand up in a stop motion saying "shush", and emphasising at the earliest possible opportunity such as a layover/rest break that such conversation was not permitted and that if it continued it may lead to a negative assessment. 164Ms Norman, as the BOT1 bears the ultimate responsibility for inappropriate actions of a TBO (unless of course a TBO clearly acts contrary to an instruction), any such inappropriate actions must be stopped and corrected promptly at the first opportunity. 165Similarly on the issue of kneeling the bus the Board accepts the evidence of BOT3 Juma that 6 opportunities of kneeling the bus were not observed/taken. Kneeling the bus is not an optional extra, or to be undertaken at the discretion of a Bus Operator. It is an essential part of STA's customer service. Clearly no doubt considerable capital expenditure has gone into equipping the STA fleet with buses that have the capability of being knelt to assist the disabled, those wheelchair-bound, older passengers and parents/carers with prams etc. 166If the TBO was approaching the kerb in such a way as to inhibit the bus from being knelt then that was a training issue that should have been addressed and rectified promptly. 167Similarly the Board accepts BOT3 Juma's evidence that Ms Norman had to draw the TBO's attention to the fact that there was still a passenger (BOT3 Juma) on the bus. While the TBO (as Ms Norman asserted and noted) may have then dealt with a sleeping customer appropriately, the issue was that either he did not check the bus and see him in the first place, or was not given time to exercise his initiative to discover the remaining passenger. 168Ms Norman and the RTBU also miss the point about the stop at Dee Why and staying behind the other buses. The issue wasn't about any local agreement, the concern was about Ms Norman commenting on being 4 minutes late both in front of passengers and whilst the bus was in motion. It is clear that it is STA's policy not to mention such an issue in front of the public when it can be overheard (apart from any issue of not doing so whilst the bus is in motion). Ms Norman has a loud and clear voice (on her own admission) and such pronouncements should be kept until passengers have alighted from the bus. Any necessary conversation/instruction/information in a training capacity should be given so as to be heard by the TBO only and "sotto voce". 169On the issue of the AFC not being set up at the start of the trip on day 2, and the matters raised by Ms Norman about how the AFC operates that evidence is difficult to assess. However even if the evidence about the actual issue identified with the panel on the bus and the subsequent delays is accepted, it still appears to be the case that time should have been taken (even if that meant late running) to set up the AFC ready for the trip before leaving the Depot as required. 170Notwithstanding the findings made above, the Board is not satisfied that all particulars of the two charges against Ms Norman have been made out on the evidence, although the Board does accept that a significant number of the particulars have been sustained. 171Criticisms can be made of, and faults found with, the way in which Ms Norman conducted her training of the TBO on the 18 and 19 July 2011. However the Board considers that very valid issues have been raised about the training materials available to BOT1s. In the absence of any evidence about any adverse or negative outcome of Ms Norman's training of either TBO Lorentzen or any other TBO since 9 May 2011 then the Board has some difficulty in determining whether or not Ms Norman has failed to carry out her training duties to the standard required by STA. 172The Board has also expressed concerns, as outlined above, as to deficiencies in both the investigation and the evidence before the Board. 173The Board also considers that Ms Norman possesses the ability to be a valuable asset to STA as a Trainer (either at the Depot or Head Office level) however she must learn to curb her enthusiasm and accept that there are issues she needs to address and correct, and criticisms she must accept. She is being given a further opportunity by the Board and should not waste that opportunity. 174In all of the circumstances, and based on the evidence before it, and applying Duhbihur, the Board considers that the punishment of permanent regression from Bus Operator Trainer Level 1 to Bus Operator on Ms Norman too harsh and intends to allow Ms Norman's appeal with a modified penalty. 175Ms Norman is to be reinstated to her position of Bus Operator Trainer Level 1, and the Board notes that the loss of pay since she was placed on Bus Operator Level 2 duties and pay, effectively does constitute punishment for the those issues that in particular have been referred to above. 176Ms Norman is to receive further counselling on the specific issues she needs to address in the future from either the Depot BOT3 or an appropriate supervisor. 177Ms Norman can expect to be subject to monitoring by way of discrete checks in the future as to her training (in common with all BOT1s) but the Board would recommend in the first instance that any perceived issues be the subject of discussion by the BOT3 carrying out such a discrete check with both Ms Norman and the relevant Depot BOT3. 178The Board further recommends in the strongest possible terms that there be discussions between the STA and the RTBU involving the Learning and Development Unit as to the development of either a checklist (as set out in Mr Browning's evidence) or some standardised lesson aides that might used if the 'buddy' system is continued to be relied on in the training of BOT1s by STA. Order(s) 1.The appeal is allowed; 2.The decision of State Transit Authority to regress Ms Norman from the position of Bus Operator Trainer Level 1 is set aside. 3.Ms Norman is to be reinstated to the position of Bus Operator Trainer Level 1 on and from 26 April 2012. 4.Ms Norman is to receive appropriate counselling concerning the issues raised by the discrete checks carried out on the 18 and 19 July 2011. 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: 24 April 2012