Scalercio v STA [2012] NSWTAB 16

Transport Appeal Boards New South Wales Medium Neutral Citation: Scalercio v STA [2012] NSWTAB 16 Decision date: 25 May 2012 Before: Ritchie C (Board) Decision: Catchwords: State Transit Authority-trainee bus driver-not offered employment post his period of traineeship. Received form from STA stating he had completed traineeship- STA submitted wrong date on form-appellant stated that other drivers had completed training within two years. Board found that clerical error had occurred and therefore appellant could not bring appeal before Board. Legislation Cited: Transport Administration (Staff) Regulation 2005 Category: Principal judgment Parties: Mr A. Scalercio (Appellant)

State Transit Authority of NSW(Respondent) Representation: Mr C Preston (Appellant) Mr S McLean(Respondent) File Number(s): TAB 189 of 2012

DECISION

Introduction 1It was the respondent's submission that as the appellant is not a STA officer he does not have a right of appeal to a Transport Appeal Board pursuant to Clause 32 of the Transport Administration (staff) Regulation-2005. The STA submitted that the appellant's appeal should be set aside for want of jurisdiction. 2It was the appellant's submission that the STA had no authority to inform the appellant that his services were no longer required after the date of 15 May 2012.

Respondent's and Appellant's Cases 3The respondent stated that the appellant commenced employment with the respondent as a part time bus operator level 1 on 16 March 2010. The letter of employment dated 15 March 2012, stated in part : For trainees employed for at least 33 weeks per week the duration of the Traineeship is two years. If you work less than 33 hours per week the period of the traineeship will be extended to ensure sufficient time for you to achieve Certificate 111. and The period of your employment with State Transit is concurrent with the period of the training contract. If you complete all the training requirements of the Traineeship and your performance is satisfactory, you may at the discretion of State Transit, be offered permanent employment as a Bus operator level 2 at the depot where you completed your Traineeship. 4In a letter dated 5 May 2010 the appellant was offered and accepted a full time Trainee Bus Operator position as from 16 May 2010. As the appellant did not meet the specified requirement of 33 hours per week until 15 May 2010, the Traineeship was extended from 15 March 2012 to until 15 May 2012.The appellant also signed an Australian Apprenticeship Sign -Up Form which stated that the completion date of the Traineeship to be 15 May 2012. 5On 27 May 2010 the Department of Education and Training (DET) confirmed the duration of the Traineeship to be from 16 May 2010 to 15 May 2012. 6On 28 February 2012 the appellant was issued a "Completion of traineeship" form which incorrectly indicated that the traineeship between the appellant , the respondent and DET concluded on the 15 March 2012, instead of the previously advised date of !5 May 2012. 7On 20 April 2012 the Depot Manager at Brookvale Bus Depot advised the appellant that the respondent would not be offering him employment beyond his current Traineeship and effectively his last day of service would be 15 May 2012. 8It was the respondent's submission that the appellant should have been aware that his employment was of a temporary nature as he signed the letter of offer of employment. 9A statement of David Browning formed part of the respondent's documentation. In it he stated that he holds the position of Manager Registered Training Organisation (RTO) with the Learning and Development unit of Human Resources. In his previous employment with various organisations he was responsible for the RTO function. In his statement he stated that because the appellant commenced on a part time basis and his weekly hours were less than 33 hours he did not qualify for the standard two year traineeship. When he was made full time in May 2010 he was then offered a two year contract. This traineeship was then approved by DET. The respondent had at no time lodged an application with DET for an early completion of the appellant's Traineeship nor had DET advised the respondent of an approval of an early completion. 10It was the respondent's submission that at the time the appellant was advised that he would not be offered permanent employment he was a temporary employee and such was not able to make an application for an appeal pursuant to Clause 32 of the Transport Administration (Staff) Regulation 2005. The definition of "STA officer" does not include a casual or temporary employee. As the appellant was not an STA officer he did not have the right of appeal to the Transport Appeal Board pursuant to clause 32 of the Regulation. 11It was the appellant's case that the appellant completed the Completion of Traineeship form with the signatures of the appellant and the Supervisor Mr Mark Reber dated 25 February 2012.This document stated that the traineeship commenced on 16 May 2010 and last day of Traineeship was 15 March 2012. A Record of Achievement in favour of the appellant issued by the respondent stating that the named appellant has satisfied the requirements of the following competencies ( as listed) for Certificate 111 in Transport & Logistics (Road Transport). A Certificate 111 in favour of the appellant in Transport & Logistics (Road Transport), dated 27 October 2011 which was a training programme achieved through an Australian Traineeship Arrangement issued on 8 November 2011. 12It was the appellant's submission that it was not unheard of for a trainee to complete their training before time and have that recognised by the respondent. In good faith the appellant signed the document provided to him signalling the completion of his traineeship. It was submitted that this document should be upheld by the Board and therefore allow the appellant's appeal to proceed.