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. Considerations and Decision. 13The documentation provided by the respondent stated a number of things. Firstly that the appellant commenced on a certain date that being 16 March 2010. Secondly on commencement he was employed as a part time employee. Thirdly that if a trainee works less than 33 hours per week the period of employment will be extended to ensure sufficient time to complete Certificate 111 in Transport and Logistics (Road Transport). Fifthly full time employment was offered and accepted on 16 May 2010. Sixthly that the appellant signed on 14 May 2010 a form entitled NSW Apprenticeship/Traineeship Training Plan-Summary which shows the commencement date as being 16/5/2010 and the Expected Completion Date of Apprenticeship/Traineeship being 15/5/2012. Point seven , the letter dated 27 May 2010, from the Department of Education and Training stated that the application from the respondent establishing a new entrant traineeship for Arthur Scalercio had been approved. It stated amongst other details that the Term of traineeship is 2 years, the starting date was16 May 2010 and the Full-term completion date was 15 May 2012. 14The respondent stated that the form signed by the appellant Completion of Traineeship stating that the last date of traineeship: 15 March 2012 was a clerical error. The appellant stated that completing a 2 year traineeship before the two years is up had previously occurred. 15The Apprentice/Traineeship Training Contract consisted of three parties. The Department of Education and Training, the respondent and the appellant. The date of completion of the traineeship was expressed in the contract. It is my finding that the appellant was given a document in error, stating that his traineeship had completed on 15 March 2012 (two years after commencing his part time employment, but which did not take into account his period as a part time employee). The appellant could not provide to the Board a document from DET which substantiated their claim. I do not believe from this error that the appellant can then state that at the point of his termination he was a permanent employee. 16I find that at the point of termination the appellant was a temporary employee. 17An STA officer may appeal to Transport Appeal Board against a decision of the STA to impose a punishment(Regulation 32 (a)). The definition of a "STA officer" is : includes an employee of the STA, but does not include a casual or temporary employee. 18It is my finding that the appellant was not a STA officer and therefore the Board does not have the jurisdiction to hear his appeal. Order(s) 19This appeal is dismissed for want of jurisdiction. D. Ritchie 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: 15 June 2012