Transport Appeal Boards New South Wales Medium Neutral Citation: Jaggers v State Transit Authority [2012] NSWTAB 18 Hearing dates: 22 and 23 March 2012 Decision date: 06 July 2012 Before: Bishop C (Board) Decision: Appeal Disallowed Catchwords: PUBLIC SERVICE - discipline - Bus Operator - regressed three months for misuse of STA resources - using resources for own purposes on retaining shift - plea of not guilty - setting aside of penalty sought -charges found proven - appeal disallowed Legislation Cited: Industrial Relations Act 1996 Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Category: Principal judgment Parties: Daniel Jaggers (Appellant) State Transit Authority Division of the New South Wales Government Service (Respondent) Representation: Mr P O'Connor Rail, Tram and Bus Union, Bus and Tram Division (Appellant) Mr S McLean State Transit Authority (Respondent) File Number(s): TAB 1451 of 2011 DECISION Introduction 1Mr Jaggers commenced employment with the State Transit Authority (STA) on 30 September 1996 as a Trainee Bus Operator. 2On 1 November 2011, STA issued a Notice of Punishment to Mr Jaggers regressing him from his position of Shed Driver at the Ryde Depot to a Bus Operator Level 1 for a period of three months. 3On 7 November 2011, Mr Jaggers lodged an appeal with respect to his regression by STA and the issuing of a Final Warning to the Transport Appeal Boards. In his Notice of Appeal he indicated a plea of 'Not Guilty'. 4The matter was listed for disciplinary conciliation before Commissioner Tabbaa on 16 December 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 22 March 2012, the hearing continued and was concluded on 23 March 2012. 5The STA presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. Background and Chronology 6The following Background and Chronology has been drawn from the evidence and submissions before the Board as filed by the parties. 7On 1 July 2011 Mr Jaggers was rostered on a retraining shift (E416, operating bus 2758), under the supervision of Bus Operator Trainer Level 2, Mr Roberto Sausa. STA organised the retraining shift as a result of Mr Jaggers accident/incident collision history over the previous twelve months (in accordance with normal operational practice). 8On the morning of 1 July 2011, Mr Nick Lazarou, Ryde Depot Manager, was contacted by phone by Mr Brendan Rabbitt, Tempe Depot Manager, and advised that a Ryde bus with Mr Jaggers and Mr Sausa on board was at the Tempe Depot and that when asked the reason for the visit Mr Jaggers had said that he was there "to pick up Raul" . Mr Lazarou then ascertained that Mr Jaggers was on a retraining shift with Mr Sousa. He requested, and received an email from Mr Rabbitt confirming their conversation (Exhibit 7-1) that afternoon (2.43pm). He then requested that Ryde Staff Manager Darren Baker conduct a preliminary investigation into the matter. Following receipt of Mr Baker's Report (Exhibit 7-2) he determined that it was appropriate to initiate a formal investigation. 9On 12 July 2011, Mr Lazarou issued Mr Jaggers (and also Mr Sausa) a Form E1 providing particulars of the following three charges relating to the retraining shift of 1 July and giving them seven days to provide an explanation in writing (Exhibit 7-3): Charge One On 1 July 2011 between 10.58am and 2.37pm, you breached section no.s 4.4c, 4.4d, 4.9 and 4.18 of the State Transit Code of Conduct when you misused State Transit's resources. Particulars of Charge One 1.On 1 July 2011, you were rostered retraining shift E416, operating bus 2758 which provided for retraining from 10.00am to 14.55pm with Bus Operator Trainer, Level 2 Roberto Souza (sic). 2.The retraining was organised as a direct result of your accident/incident collision history. 3.You requested to attend Tempe Depot and operate your retraining shift outside your regional service area. 4.You used your retraining shift to drive Bus Operator Raul Boanza (sic), between Tempe and Randwick Depots. 5.You then used your retraining shift to attend Tempe, Randwick and Waverley Depots for your own purpose, or for purposes not primarily for your allocated retraining. Charge Two On 1 July 2011 between 10.58am and 2.37pm, you breached section no.s 4.4c, 4.4d, 4.9 and 4.18 of the State Transit Code of Conduct when you misused State Transit's resources. Particulars of Charge Two 1.On 1 July 2011, you were rostered retraining shift E416, operating bus 2758 which provided for retraining from 10.00am to 14.55pm with Bus Operator Trainer, Level 2 Roberto Souza (sic). 2.The retraining was organised as a direct result of your accident/incident collision history. 3.Between approximately 11.40 and 12.02 you used your retraining shift for purposes not primarily for your allocated retraining when you visited Tempe Depot for approximately 22 minutes. 4.Between approximately 12.34 and 13.09 you used your retraining shift for purposes not primarily for your allocated retraining when you visited Waverley Depot for approximately 35 minutes. Charge Three On 1 July 2011 between 10.58am and 2.37pm, you breached section no.s 4.4c, 4.4d, 4.9 and 4.18 of the State Transit Code of Conduct when you misused State Transit's resources. Particulars of Charge Three 1.On 1 July 2011, you were rostered retraining shift E416, operating bus 2758 which provided for retraining from 10.00am to 14.55pm with Bus Operator Trainer, Level 2 Roberto Souza (sic). 2.The retraining was organised as a direct result of your accident/incident collision history. 3.On this occasion, your request to operate your retraining shift outside your regional service area, and visit Depots as part of your retraining shift was not in the best interests of State Transit. 10Mr Jaggers provided a written response to the Form E1 to Mr Lazarou on the 25 July 2011 after requesting, and being granted, an extension of time, as well as seeking further clarification of the details of the allegations. In his response he generally indicated as follows (Exhibit 7-6): The shift was T416 not E416. Agreed as to reasons for the retraining. Did not request to attend Tempe Depot, discussed the 'plan of attack' for the day with the BOT2. They agreed it would be beneficial to drive in an unfamiliar area. Common practice of BOT2s with their Trainees and could be confirmed by other drivers at Ryde. Had not seen a policy saying training to be done inside Depot area. Offered a lift to Bus Driver Baonza after he mentioned he was heading to Randwick Depot. Had given a lift to another employee that day and seen other trainers from other Depots visit Ryde and offer lifts to Ryde employees. Common practice to offer employees including managers lifts to and from the Depots. denied using this retraining shift for his own purposes as he was operating a bus where his supervisor had the opportunity to assess his driving. Driving outside the area more challenging. Agreed they stopped at the Tempe Depot for a rest break. Mr Rabbitt did not make it known that it is not allowed to have any rest breaks when retraining. Agreed they stopped at the Waverley Depot and took the opportunity to purchase something to eat as the canteen was closed. Maintained giving a lift to other employees was a common practice since he started in 1996. Indicated "I am at a loss to understand why my actions have been singled out on this day. I can only assume that we have been targeted because of our ties with the union movement. These events are no different to what happens every day in every Depot". Sought specific information on how he had not acted in STA's best interests and clarification concerning "misuse" of STA's resources. 11Ms Daniela Fontana, Leichhardt Depot Manager, was appointed by STA to further investigate the allegations against Mr Jaggers, and she wrote to him advising that "in order to clarify some issues" she was conducting a "discipline inquiry" and had "arranged to interview" him at the Ryde Depot on 5 August 2011 (Exhibit 3-2D) 12Subsequently, correspondence was exchanged between Ms Fontana and Mr Jaggers relating to the purpose and details of the proposed interview, as well as correspondence between RTBU representative Mr Robert Matthies and Ms Fontana seeking similar clarification. Mr Jaggers also sought that a copy of the questions to be asked be provided to him in advance of the interview, the interview be conducted in the Drivers' meal room, as well as Mr Rabbitt "being made available" to enable clarification of his report (Exhibit 3-2E). 13To accommodate the availability of RTBU representatives Ms Fontana agreed to re-schedule the interview for 18 August, 2011 but rejected Mr Jaggers' requests in relation to the conduct of the interview and also indicated inter alia that failure to attend the interview may be viewed as failure to follow a lawful direction, resulting in further disciplinary action (Exhibit 7-8). Mr Jaggers wrote to Ms Fontana on 18 August to inform her that he had received advice that his attendance was not obligatory, and that he had decided not to attend the interview (Exhibit 3-2G). ` 14Ms Fontana subsequently forwarded correspondence to Mr Jaggers on 30 August advising that she intended progressing her investigation based on the information she had, indicating his obligations to be accountable to his employer for his actions and providing him with the opportunity to provide submissions as to why STA should not take disciplinary action against him for failure to comply with the direction to attend the interview (Exhibit 7-9). 15On 2 September 2011, Mr Jaggers provided a written response to Ms Fontana (Exhibit 13-2) in which he advised that he believed it was his "legal right to decline to attend an interview where questions without notice are put to me with the obvious intent of finding discrepancies from my written response". He did not believe this amounted to misconduct or could be construed as misconduct for refusing to follow a reasonable instruction. "Reasonable instructions apply to the performance of my role as a bus driver and not to the exercise of my legal rights as a worker, union delegate and a citizen". He further advised that he was more than happy to respond/co-operate with any questions put to him in writing. 16During the course of her investigation Ms Fontana interviewed Mr Rabbitt (Exhibit 3-2HI) and Bus Operator Baonza (Exhibit 3-2L) both in person and forwarded 3 written questions to Ms Shelley de Courcy Lys, Randwick Depot Manager (Exhibit 3-2JK) for her response. She also considered the relevant Journals for the day of Mr Jaggers, BOT2 Sausa and Bus Operator Baonza, the STA PTIPS summary of the movements of the relevant bus, and BOT2 Sausa's training summary (all documents included in Exhibit 3-2). 17Mr Ken Wheeler, Willoughby Depot Manager, was appointed by STA to be the Reviewing Officer in relation to the investigation and was provided with a copy of Ms Fontana's Investigation Report (Exhibit 3-2) in which she found the Charges proven. Mr Wheeler determined that the appropriate punishment was a three month (13 week) regression in Grade (Exhibit 8) and a Final Warning. Mr Wheeler also noted in Comments attached to his Report that Mr Jaggers had failed to follow a reasonable direction to attend an interview, and indicated that taking into account the circumstances, consideration should be given to issuing Mr Jaggers with a Form E1 in order to further investigate this issue. 18Following receipt of both the Investigation Report and the Reviewing Officer's Report, Mr Lazarou met with Mr Jaggers on 6 October 2011 for the purpose of providing him with the formal Notice of Punishment. Mr Jaggers declined to accept it without his RTBU representative present. 19Due to leave commitments of both Mr Lazarou and Mr Jaggers the Notice of Punishment was not able to be provided to Mr Jaggers in the presence of his RTBU Representative until 25 October 2011. As there were some errors in the Notice requiring correction (as pointed out by Mr Jaggers) an amended Notice of Punishment was provided to him on 1 November 2011 in the presence of his RTBU representative. Mr Lazarou also advised Mr Jagggers that a recommendation had been made that additional E1s be issued to both he and Mr Sausa relating to not attending the disciplinary interview but that Mr Lazarou had determined not to pursue this matter due to the timeframe that had elapsed. Issue(s) 20Mr Jaggers pleaded not guilty to the allegations and sought that the penalties (the regression in Grade and the Final Warning) be set aside. It is therefore the Board's task to determine whether the allegations against Mr Jaggers are sustained, and if so, the appropriate penalty to be imposed. 21At the commencement of proceedings Mr Mclean raised the jurisdictional issue that there was no ability for the Board to hear an appeal concerning the issuing of a warning pursuant to the relevant provisions of the Transport Administration (Staff) Regulation 2005. This was acknowledged by the Board, accepted by Mr O'Connor on behalf of Mr Jaggers, and that aspect of the appeal was withdrawn. Evidence 22STA's evidence before the Board was contained the Investigation Report (attached to Ms Fontana's statement - Exhibit 3), relevant extracts from the Code of Conduct (Exhibit 3-1), STA's Competency Based Assessment (Exhibit 4) and Witness Statements from the following STA employees who also gave oral evidence: Brendan Rabbitt...Tempe Depot Manager (Exhibits 1 & 2), Daniela Fontana...Investigating Officer & Leichhardt Depot Manager, (Exhibit 3). 23STA also filed witness statements on behalf of the following employees who were not required for cross examination: Nick Lazarou..........Ryde Depot Manager (Exhibit 7), Ken Wheeler.........Reviewing Officer & Willoughby Depot Manager (Exhibit 8) and, Warren Singleton...Staff Supervisor, Tempe Depot (Exhibit 9). 24The evidence of Mr Lazarou, Ms Fontana, Mr Rabbitt and Mr Wheeler as to the chronology of the events concerning Mr Jaggers, relevant documentation, and their part in those events is to be found in the Background and Chronology above. 25Mr Rabbitt acknowledged that when he was previously at Ryde Depot filling in as Operations Manager he knew Mr Jaggers and had dealings with him in his capacity as Union Delegate. It was a professional relationship, there may have been conflict from time to time but the relationship was an amicable one. After his time at Ryde Depot he rarely came into contact with him. He did not believe that relationship coloured his response to Mr Jaggers' behaviour at that time. 26It was Mr Rabbitt's evidence that when Mr Jaggers arrived at Tempe Depot he asked Mr Rabbitt where he could park the bus. Mr Rabbitt directed him to a spot in the immediate area close to the meal room entrance. He then approached the bus and asked Mr Jaggers, (who was driving), the reason for the visit to the Depot and he replied that he was there to "pick up Raul", which he understood to mean Mr Baonza. Mr Rabbitt then returned to his office and rang Mr Lazarou (and subsequently sent a confirming email). He rang Mr Lazarou because he did have a question about why Mr Jaggers was at the Tempe Depot. 27He did not engage in any further conversation with either Mr Jaggers or Mr Sausa outside the meal room and remained in the administration building until Mr Jaggers drove the bus out of the Depot with Mr Baonza on board. During that time neither Mr Jaggers nor Mr Baonza came to the administration office and spoke to him. 28In cross examination Mr Rabbitt did not agree that the words he heard Mr Jaggers use were "here to catch up with Raul". He understood it to be "here to pick up Raul", as in "offer a lift". He did not make contemporaneous notes but did send an email to Mr Lazarou some two hours after the event. he could not recall the exact words used but the intention of the statement was that he was there to pick up Raul, not catch up. He thought it "odd" that Mr Jaggers was there, which was why he sought clarification from the Depot Manager at Ryde and the reason for the visit. 29When asked why he didn't feel the need to intervene as a manager and instruct any particular course of action or behaviour he said that "they weren't interfering with the operations of Tempe Depot". When the bus arrived it appeared out of character so he made an inquiry of the Depot Manager as to whether the bus being there was authorised or not. 30He acknowledged that in the interview with Ms Fontana he indicated that he believed Mr Jaggers may have attended the Depot before, but he certainly didn't have any interaction with him and didn't see him arrive in a bus. 31He also indicated that, in relation to a Bus Operator giving another Bus Operator a ride and any policy that precluded that, it would depend on the circumstances going on to say: "So for example it may be normal behaviour if a bus is departing the depot and for example starting the next trip at Circular Quay and the bus is not going out of its way to give a lift because there's no interference to the operations, daily operations so under those circumstances I don't see there would be any issues. So it would depend on the circumstances surrounding that". 32Regarding whether there were any policies precluding a Bus Operator doing a retraining shift giving another Bus Operator a lift, he said it would depend on whether that was interfering with the actual retrain. He agreed that an experienced Bus Operator doing a retrain would not be distracted or put off from what they were meant to be doing by one person on a bus where they normally have 57. 33Mr Rabbitt denied that he was present at any group meeting outside the meal room when it was suggested that Mr Jaggers and Mr Sausa could give Mr Baonza a lift to Randwick Depot At the time when he returned to the administrative building Mr Baonza had not yet returned to the Depot from the first half of half of his shift and he did not engage in any conversation with Mr Baonza from the time he arrived back at the Depot (just before 12 noon) and when he departed on the Ryde bus with Mr Jaggers and Mr Sausa. 34He agreed that he did not make Mr Jaggers aware that he was not entitled to a rest break at the Depot. He was not aware that Mr Jaggers was undertaking retraining until he spoke to Mr Lazarou at Ryde Depot 35Mr Rabbitt acknowledged that it was common practice, and not unusual, for buses from Kingsgrove and sometimes Port Botany to visit the Tempe Depot. Kingsgrove buses operated routes 418 and 422 terminating at Tempe and would lay over at the Depot between trips. Port Botany operated service to Sydenham Station (approximately 1.5ks from the Depot) and buses sometimes stopped at the Depot for drivers to use the facilities. 36He maintained that it was unusual to see buses from distant Depots such as Ryde which was why he rang Mr Lazarou. Under normal circumstances he would take little or no interest in a bus from a nearby Depot that ran services in the area such as Kingsgrove, Port Botany or Randwick. He was not aware of any buses from the western region that had visited since 1 July 2011. 37Mr Rabbitt was asked if it was common practice when undertaking a retrain to work outside your normal regional area and he responded: A. My understanding when undertaking a retrain that specific areas would be targeted during the retrain depending on what the retrain was for. For example, if a bus operator had an issue with roundabouts then they would target roundabouts. If the issue is pulling in and out of a bus stop, that's the issue they would look at during the retrain. So look at whatever the actual retrain is for, then target those areas. 38He went on to explain that a retrain would focus normally on areas of concern, whereas a licence upgrade would focus on achieving certain competencies required to obtain a driver's licence of that category. 39Mr Rabbitt also said that at Tempe it would normally be the case that a BOT2 would speak to, for example, a Staff supervisor to find out the reason for the retrain so that they might target those issues that required targeting. 40He also said that there was no paperwork that went to the BOT2 saying what needed targeting, just informal contact. In his experience the BOT2 would work that out rather than talk to the Bus Operator and would normally focus on the routes that the Depot would operate because typically that was where the accidents/incidents may have occurred. 41He agreed that if there was a need for training to be done outside the area a possible reason could be that, for example, they didn't have sufficient roundabouts in the Tempe area but knew the adjoining areas such as Kingsgrove or Port Botany did, then that could be a possible scenario. 42Mr Rabbitt said that Mr Baonza made several approaches to him during the subsequent disciplinary investigation, and he advised him that the matter was being investigated by the Ryde Depot. He did not believe he used the words "Ryde politics" during these conversation and they were not normally words he would use in speaking with staff. 43Mr Singleton generally confirmed the evidence of Mr Rabbitt indicating that at about 11.45 am he was working in the administration office when his attention was attracted by an older model blue and white STA bus and he noticed that Mr Rabbitt then appeared to be speaking to the occupant/s of the bus. Mr Rabbitt then returned to the office and indicated to him that the bus was from Ryde and that they were there to pick up Mr Baonza. They both then checked the work journal for Mr Baonza which showed that he was not due to return to the Depot until 11.51.am. The Ryde bus left the depot at approximately 12 noon with Mr Baonza on board and Mr Jaggers driving. 44Mr Singleton maintained that from the time Mr Rabbitt returned to the administration office and up until the time the Ryde bus left the Depot, Mr Rabbitt remained in the building, and they were together the whole time in either the administration area, or, and at times, the utilities room. Mr Rabbitt did not leave the administration office and neither Mr Baonza nor Mr Jaggers came into the office. 45Ms Fontana had not known, or had any dealings with, either Mr Jaggers or Mr Sausa before taking on the role of Investigating Officer. She was aware of the reason Mr Jaggers was required to undertake retraining (as a result of a collision). She also indicated that the purpose of retraining was for the BOT to attempt to rectify a deficiency in driving and gave an example of such a specific deficiency (problem with mirrors or a certain type of accident). The expected outcome would be that the driver would learn and improve his technique in order to avoid that type of incident happening again. 46Ms Fontana also indicated that there were costs involved such as the trainer, the employee taken off his normal line of work, costs of covering a replacement driver, fuel costs, and that the bus is taken off the road when it may have been required for something else like charter or other road works. No specific bus was allocated for retraining but whatever bus was available (but similar to that which was normally driven) and that would be allocated by the Yard Supervisor. She also acknowledged that there were cost benefits in conducting retraining, in hopefully not having the same issue arise again and reducing collisions etc. 47If a replacement driver was not available then a driver's day off would be cancelled (a DOC) and penalty rates would have to be paid for that driver. 48Ms Fontana confirmed the evidence of Mr Rabbitt as to the difference between a retrain and a licence upgrade. 49Ms Fontana said she would not normally expect a retrain to be undertaken outside the normal operating area but there were certain competencies in the RTA competencies that require you to do long distance and do require you to use the open road or highways. But for a retrain there was no set rule whether you can or you cannot. She went on to confirm the examples given by Mr Rabbittt as to the reasons why a BOT might need to do a retrain in an adjoining area. 50Ms Fontana acknowledged that simply going outside the regional area was not a problem. She believed it was not in the best interests of STA to visit Depots outside the regional area "because the resources were not used to the best of their ability, the amount of time that was actually used for driving. It's not about where they went or operating outside of the area, that's not in question, it's how they used the resources and what they actually did during that retrain time so in my view the amount of hours that were actually spent driving and doing a retrain was not in the best interests of State Transit and the employee." 51Ms Fontana was also asked about the route taken on the retrain on 1 July and indicated that she was did not know the exact route and was referred to Mr Jaggers' statement. She said that she regarded his reference to driving on the M5 as constituting driving on a highway. 52Ms Fontana confirmed that included in her Investigation Report was the standard form used with a retrain and as filled in by Mr Sausa as the BOT2 on 1 July 2011 (Exhibit 3-2O).She confirmed that the competencies being assessed that day were taken from the BOTs' competency guidebook which was an RTA competency book (Exhibit 4) did not include highway running. 53Ms Fontana said that Mr Jaggers was given two opportunities to participate in a interview. She wanted him to attend an interview so she could ask him some additional questions and also to be able to clarify the version of events from the BOT2 and Mr Jaggers. She was not able to clarify those issues because she was not able to interview them. She confirmed that both men attended the Ryde Depot on the second date as instructed but gave her a letter saying that it was in their best interests not to answer any questions at the interview so therefore that was "a decline". 54Ms Fontana found the charges proven but was not involved in determining the punishment to be imposed on Mr Jaggers. 55In cross examination Ms Fontana was referred to the initial investigation by Ryde Staff Manager Darren Baker (Exhibit 3-2R) which had attached an email response to an enquiry of the Randwick Depot Manager Shelley de Courcey and information she had provided concerning a conversation with Mr Bruce Eddy on the afternoon of 1 July 2011. Ms Fontana did not pursue the issue of whether there was any pre-arrangement between Mr Baonza and Mr Eddy as she did not consider that relevant to her investigation. 56Ms Fontana indicated that there was no issue that Mr Jaggers had driven the bus in-service on his regular route for the first part of the shift. That was part of the retaining and there was no issue with that. She also did not think it unusual for a BOT2 to discuss with a Bus Operator where they would go once that component of the shift had been completed and consider an alternate route to assess other competencies. 57In looking at the competencies itemised in the Bus Operator Retrain/Brushup Record Sheet completed by BOT2 Sausa Ms Fontana was of the opinion (and had conducted her investigation on that basis) that the numbers listed were 02, 31, 36, 40 rather than 02_31, 36, 40. (NOTE: The underscore mark on the form was a very short heavy mark/short dash level with the bottom of the 02 and 31). Ms Fontana was unable to verify which version was intended as she was unable to interview eiither Mr Jaggers or BOT2 Sausa. 58Ms Fontana acknowledged that the retraining covered the whole shift but said that she did not look at the first in-service part as that would be when the BOT2 observed the Bus Operator. She only concentrated on the second part as it would be that part of the shift where they would actually go out and do their retraining of whatever deficiency needed correcting. 59Ms Fontana said that the allocated time for training (as set out in her Report) was four hours and 45 minutes which was the second half of the shift where the BOT2 does the actual training. She arrived at the figure of one hour and 52 minutes of actual training by taking out the breaks and the travel time taken where they transported Mr Baonza from Tempe Depot to Randwick Depot, because they weren't actually training while they were transporting someone, they were talking. The BOT2 was talking to Mr Baonza, that was in his statement when Ms Fontana interviewed him. 60She concluded that the second part of the shift did not meet retraining requirements as it was an issue of how the resources were used when doing the competencies and whether that time was used effectively or whether those resources were misused during that process. 61She went on to respond that in a retrain shift the BOT was there to retrain the driver and spend quality time and resources to do the training, not transport people from A to B, that was wasting resources. The BOT was a professional and should know what was expected of him and what was an appropriate use of resources. 62She acknowledged that the competencies were ticked off as being completed and it was considered a successful retrain. It was up to the BOT2 to make that assumption. There were no questions asked about the assessment, as she was not asked to investigate that, only the charges against Mr Jaggers and whether resources were used effectively. She was not there to determine whether or not the BOT2 did the competencies. 63Ms Fontana said she was unaware of the reasons given by Mr Jaggers as to his medical condition and the need to take breaks as she was not privy to that information as she was unable to interview him. That information was not on his personnel file and such matters would be confidential to the Health Service Officer. She did go through the employee files but there was no mention of any health issues. 64Ms Fontana was unable to determine for what purpose Mr Jaggers went to the Tempe, Randwick and Waverley Depots as she was unable to interview him. 65In coming to her conclusions and weighing the evidence she considered that Mr Rabbitt's interview was nowhere near as uncertain in her opinion as Mr Baonza's. 66Ms Fontana was aware of the training BOTs received and agreed that in that training it recommended that Assessors give trainees regular breaks to absorb, reflect, and discuss what they had been trained in. She gave that consideration in her report but determined that the breaks taken were excessive. On the evidence at hand there was an "awful lot of time spent in short intervals having breaks in such a short timeframe". She thought that was "excessive". 67Ms Fontana confirmed that the charges against BOT2 Sausa were also found proven. 68Mr Wheeler as the Reviewing Officer into Ms Fontana's Investigation report and findings was of the opinion that the investigation process had been conducted in accordance with STA's procedures and that Mr Jaggers had been afforded procedural fairness throughout that process. He was also of the opinion, after considering the report and the available evidence, that the findings were appropriate. 69Mr Wheeler also included the following comments In his Report (Exhibit 8-2): There are no current restrictions that prevent training shifts from being operated outside the Bus Operator' normal operating area and this point is acknowledged by the Investigating Officer. However, it is reasonable to expect that the need to do so would generally be based on the reason for the training being conducted and the competencies being assessed. I have considered Mr Jagger's (sic) response that he did not request to attend Tempe Depot, yet he admits discussing the plan of attack with his BOT2 that morning. The evidence of Mr Rabbit (sic) and initial evidence of Mr Sausa suggests that Mr Jaggers did influence the route that day and that this was designed to serve a purpose other than Mr Jagger's (sic) training needs. I therefore concur with the Investigating Officer's conclusion that the operation of the training shift on that day was not an appropriate use of State Transit resources particularly having regard to the length of time spent in relation to providing personal transportation to Mr Baonza to other Depots, and the length of break times taken during the course of the shift. Such breaks were at least in part taken at Mr Jagger's (sic) initiative, ie idea to have an additional unscheduled meal break. 70The RTBU called the following witnesses to give oral evidence in addition to the witness statements as filed: Daniel Jaggers.....appellant (Exhibit 10), Raul Baonza........former Bus Operator Tempe Depot (Exhibit 11), Robert Matthies...Bus Operator Ryde Depot (Exhibit 12). 71Mr Jaggers deposed that on 1 July 2011 he was operating the bus on the retraining shift under the supervision of BOT Sausa. During the retraining shift the bus was operated on the following routes - Ryde Depot to Tempe Depot via Homebush Bay Drive, Tempe Depot to Randwick Depot via Botany Road, Randwick Depot to Waverley Depot via York Rd, Waverley Depot to Randwick Depot via York Road, Randwick Depot to Ryde Depot via Botany Road and Homebush Bay Drive, with rest breaks at Tempe and Waverley Depots. 72In oral evidence he outlined what he did on the retrain shift that day as follows: Signed on at 5.45 with BOT2 Sausa; they went through the process of the pre-departure check; went through some of the 50 working instruction questions he'd previously been given; he was asked questions about that; they went out and did some around the yard; and with part of the procedure in pre-departure checks, and then went out and did some roadwork. They left at around 7 am; he drove with Mr Sausa indicating he'd be looking and putting forward suggestions if corrections were needed (which they weren't). They came back to the Depot; Mr Jaggers paid in; they went and had a break from around 9.20 to 10 am, they then got together and went over more working instructions. Mr Jaggers was then approached by the Union delegate of the day and asked to assist him with some issues as a witness upstairs with management so he offered himself; Mr Sausa had no issue with that; at around 10.50 am they got a bus from the Yard Supervisor; as they were leaving the Depot they had another staff member on who wanted a lift up to Top Ryde; he was dropped off; then he and Mr Sausa discussed what were the plans for the day; there were no actual plans with the suggestion that they just head off down Homebush Bay Drive. 73Mr Jaggers said that it was the BOT2's thoughts that it would be best to go outside the area seeing as Mr Jaggers drove down Victoria Road and in the Ryde area every day and knew it quite well, so he put him in a foreign area where obviously he could assess his driving and see if he had any issues that needed correcting. 74Mr Jaggers acknowledged that there was a break of close to an hour between 10 am and 10.55 when he was doing Union duties and not doing retraining but said he sought permission from the BOT2 prior to doing that. 75He did not consider that he had any kind of influence over the BOT2 during the activities of the day; agreed the position of Union delegate was held in respect by certain members, but did not agree that the position held a certain amount of informal power. 76It was Mr Jaggers' recollection that it was BOT2 Sausa who suggested visiting Tempe Depot as they were going down Homebush Bay Drive. He did not know why he would want to visit Tempe. He was taken to Mr Sausa's statement (Exhibit 3-2R) where Mr Sausa said: "Roberto asked Danny where he'd like to go. Danny said other Depots like Tempe as he had not been there before." Mr Jaggers agreed he suggested Waverley as he'd never been there before, he did not suggest Tempe. He later said that Mr Sausa didn't actually say Tempe Depot they just headed in that direction when they went down Homebush Bay Drive. 77Mr Jaggers maintained that when they arrived at the Tempe Depot they said hello to Mr Rabbitt and explained they were there on a retrain, he turned around and then there were comments by Mr Jaggers about being there to catch up with Raul and some other people he worked with at the Ryde Depot. As far as the difference between them in the words used Mr Jaggers said it was "his definition" that he was there to catch up with Raul, they were long time friends, had an association, and were involved in the union movement. 78He recalled that Mr Baonza then turned up at the Depot, Mr Rabbitt left and headed off towards the Tempe Bus Museum. He then transported Bus Operator Baonza from Tempe Depot to Randwick Depot. 79Mr Jaggers maintained that it was BOT2 Sausa who made the final decision to give Mr Baonza a lift; that it was a question asked of both of them; it was a joint decision, and he could not recall who suggested it or agreed to it first. 80When asked whether he was aware that Mr Baonza had said the lift was offered to him and he didn't ask for it, Mr Jaggers responded that he thought there might have been "some confusion in relation to it all". There was a discussion held. 81They then proceeded to Waverley Depot for a toilet break and something to eat/drink. He asked Mr Sausa if it was possible to have something to eat. When they got to Waverley and went upstairs and found the canteen had since closed so they went down the road (on foot and about 5 minutes away), got some KFC, came back to the Depot, he went to the toilet and they went back to the bus and left. That all took approximately half an hour The meal he had at Waverley was the first meal he'd had that shift. 82He deposed that he had a medical condition that required regular monitoring of food intake and meal breaks, as well as toilet stops. STA had been aware of this medical condition since April 2005. However he agreed that he made no mention of that in his written response to the E1. 83Mr Jaggers said that he normally worked a broken shift, leaving home around 4.45 to 5am, starting at 6, coming off the road at 9 am and did Union duties until around 11, so he was normally eating between 12.30 and 1.30, if not sometimes he had to eat his lunch at 3pm prior to going out on the road. He could not recall specific dates to which he was taken where he did not get a break between 1 and 2pm but said that he would not have any issues at all with that. On 1 July 2011 he felt hungry. 84He acknowledged that he sometimes did straight shifts on the weekend/public holidays, but they normally started at 8 or 9 am so he was having his meal break between 12.30 and 2pm. He was not saying that he could not operate shifts which had meal times at other that 1 to 2pm but that he had a pattern in relation to when he put food/sustenance into his body. 85Mr Jaggers was asked why they returned to Tempe after going to Waverley. He said they didn't return to Tempe, but via Tempe, and that was at a particular hour chosen to go back. He made a phone call to Mr Baonza to see if he was ready to be picked up, he indicated he wasn't going to be very long. They were going in that direction. They went via Randwick along Botany Road and did not actually go to Tempe Depot but to the suburb and dropped Mr Boanza off. He agreed that it was very close to the vicinity of Tempe Depot. 86It was his recollection that there was a conversation when they dropped Mr Baonza off at Randwick Depot that if they were coming back through that area, if he was ready they would pick him up and drop him off near Tempe Depot. He did not agree that it was pre-arranged. The pre-arrangement was if he was available and ready they would pick him up. He did not agree that by his actions that day he made sure he was available to pick Mr Baonza up. 87Mr Jaggers said that there was no particular reason why they chose the way they went after leaving Waverley Depot other than to go back towards Randwick and then head from Randwick out back that way to Ryde. He said he was not denying that the only imperative for doing that was to give Mr Baonza a lift. He agreed one of the other alternatives would have been to go via the city, Anzac Bridge and Victoria Road back to get back to Ryde, but did not necessarily consider it a more logical alternative. Mr Sausa had previously worked at Waverley and knew traffic conditions in the city. Traffic was heavier going down Botany Road and heavier, with different conditions to what he would be used to on Victoria Road. 88Mr Jaggers deposed that shortly after leaving Randwick Depot the second time he was contacted by Radio Control via the bus radio and asked about the whereabouts of the bus. The movements and proposed route were advised and no concerns were raised at this time about any of the details provided. 89Mr Jaggers indicated that they returned to Tempe via Botany Road, Princes Highway, then past Tempe along the M5 and then Homebush Bay Drive. He considered driving along the M5 gave the BOT2 the opportunity to see how he could drive at 90ks on the open road. 90At the time of the retrain he was not aware that anything he was doing was contrary to STA's Code or policy. 91Mr Jaggers also sought an extension of time and clarification from Mr Lazarou as to certain matters in the E1 but had still not received that clarification. 92Mr Jaggers said that he did not attend the disciplinary interview as he was well aware, as Union delegate, "that they're very leading questions in relation to basically putting people into trouble, in further trouble for want of a better word". He was more than happy to respond to any further questions STA was willing to put in writing and he indicated that quite clearly in his correspondence to STA. 93He agreed that it may have been possible, if he had attended the interview, that there may have been an opportunity for people to explain or alleviate his concerns. 94He acknowledged that the employer had the right to ask questions of employees but he felt as an employee that he had the right not to attend an inquiry. He agreed that an employee had an obligation to answer questions about work performance and he was happy to do so if they were put in writing. He considered that when an E1 was issued that was a more formal process. They had 7 to 14 days to think of questions and the person was called in and expected to answer immediately. 95In relation to having questions in writing he considered that STA's own disciplinary procedures was that the E1 itself said that he may choose to respond. It didn't say you have to respond. 96He acknowledged that the letter he sent to Ms Fonatna on the day of the interview, (which he maintained was on the advice of the Divisional Secretary Chris Preston) was on RTBU letterhead and signed in his capacity as Executive Officer Ryde Depot. He agreed that he wrote letters on behalf of members on Union letterhead but that when members responded to management they would not do that on letterhead. He did not agree that he did that to intimidate the person he was writing to and that it was an oversight that he did not sign it as Daniel Jaggers Bus Operator. 97Mr Jaggers believed that he had been victimised by STA but agreed that he had never raised the issue with the RTBU for them to pursue, nor to his knowledge had they ever taken any action in the Industrial relations Commission under the legislation about victimisation. 98Mr Jaggers acknowledged that he received a letter from the then Ryde Depot Manager (Mr Robert Tarabay) in March 2009 concerning his misuse of an STA bus to convey himself and an ex-employee to a TAB hearing in the city (Exhibit 3-2XYZ). He said there was some misinformation that day about what shift he was working and at the time it was common practice for the delegate to be able to utilise that bus at that time. He maintained it was a misunderstanding between himself and the Depot Manager. He agreed that he was warned that any further repetition may lead to disciplinary action. He agreed that he now understood that it was "definitely" not an appropriate use of STA resources. 99Mr Jaggers also agreed that he took part in the rally outside State Parliament on 2 June 2011 (Exhibit 3-2UV). He was asked by officials of the Union to attend a certain area and he did take a bus without authorisation. He agreed that it was a protest rally, he was partaking in that, and that when he took the bus without permission he was instructed by the Staff Manager, before he left the depot, not to take the bus. 100He did not agree that these were two occasions when he had misused STA resources or misused his position as delegate. 101He also did not agree that when he conducted union activities on 1 July between 10 and 10.50 am when he was rostered for a retrain that it was another example of misusing his position as a Union Delegate because he asked for permission from his BOT2. 102Mr Jaggers also acknowledged that he was aware of Mr Rabbitt's email to Mr Lazarou on 1 July and that he clearly used the words "pick up" and had been given a copy of the email by Mr Matthies on the same day he received the E1. He had not referred to it in his written response to Mr Lazarou. He said that he was because he was challenging what was in the allegations and it was not mentioned in the allegations. 103Mr Baonza was an elected Officer of the Public Transport Union from 1992 and from 1996 an elected officer of the RTBU. He was Secretary of the Bus Division from 2003 until 2011 when he returned to Bus Operator duties in May. He generally deposed that as a result of his work as a Union official, his involvement in disputes with STA and in negotiations and consultation concerning STA's policies and procedures he was an expert in such, and had appeared on behalf of the RTBU in the various industrial tribunals both state and federal jurisdictions. 104He elaborated at some length in examination in chief as to the matters that he had deposed in his statement based on his experience and knowledge as an RTBU official. 105He maintained that the issue of interviews had been a "sore" between the RTBU and STA for some time. Many of their members had been advised not to attend interviews. They were not provided with the questions which had been prepared in advance, not allowed to answer in writing, and basically if a driver made a small mistake of detail, which could happen, then those inconsistencies were brought into evidence in subsequent proceedings. 106He acknowledged that outside of the issue of interviews, in general terms, he had had no concerns with STA in other areas of procedural fairness. 107He stated that on his return to bus driving at the Tempe Depot in May 2011 he kept in touch with the friends he had made over the previous 28 years with STA, including many past and current Union Delegates. They often arranged to get together during work breaks and days off. At this time period of time he had also nominated for the position of Vice President of the Bus and Tram Division of the RTBU. 108Mr Baonza also said that when he returned to driving duties he had to do a retain, that was under the authority and instruction of the BOT2 who is always in control. During that retrain they actually drove down the M5 to Western Sydney University to drop off an assessment for the Assessor's daughter, which they did and then basically drove all over the place. He didn't feel he could pull rank in that situation. 109On 30 June 2011 he was working a broken shift and in his break he either made, or received, (he could not recall which), a call from Mr Bruce Eddy Executive Officer at Randwick Depot. As they had not seen each other for a while they organised to get together the following day and, given that Mr Baonza's was shift of 1 July had a particularly long break, they agreed that Mr Baonza would catch a train from Tempe Station to Bondi Station and Mr Eddy would meet him there around 12:30 pm. 110On 1 July he arrived at Tempe Depot at around 11:30 am to sign-off for the first half of his shift. When he drove into the Depot and parked his bus he found Mr Jaggers was near the meal room entrance talking to Depot Manager Mr Rabbitt and a number of other drivers. He was surprised to see Mr Jaggers. He also noticed Mr Sausa who he knew very well from their time together as drivers at Waverley Depot. He walked over, said hello, and joined in the conversation. Mr Rabbitt was very friendly with Mr Jaggers and Mr Sausa and never indicated or suggested that he had a problem or concern about them being at the Tempe Depot. 111In cross examination he agreed that the bus was on time and that if it was due back at 11.50 then that was the time he arrived at the Depot. 112Mr Baonza maintained that Mr Rabbitt was present and part of the group of drivers when he arrived and when he had the discussion with the group and did not walk back into the office until after Mr Baonza and Mr Jaggers finished their conversation. 113Mr Baonza maintained it was common practice for Assessors conducting training to visit other Depots, and this practice continued to this day. 114In oral evidence he said that Mr Jaggers told him he was doing a retrain so he told him he was actually going to go to Bondi Junction as he'd arranged to have a coffee with Bruce Eddy. He deposed that he said to the group in general that he had arranged to have a cup of coffee with Mr Eddy and that he would be catching a train from Tempe to meet Mr Eddy at Bondi Station. At some time it was suggested that that since the training involved driving under supervision they could give him a lift to Randwick Depot. Mr Rabbitt was present and raised no objection to the arrangement, which was common practice in STA. 115They got on the bus and Mr Jaggers drove the bus under the supervision of Mr Sausa. Mr Baonza called Mr Eddy to let him know he was getting a lift to Randwick Depot so there was no need for him to come to Bondi Station. He agreed that the bus left Tempe Depot at 12.02 (according to the PTIPS) and that he would have rung Mr Eddy about 12.04 or 12.05. He did not know where Mr Eddy was when he called him, he didn't say. It was only 5 minutes from the Depot to Bondi Station. They agreed to meet at a coffee shop about 600 metres from the Depot in Alison Road. 116During the trip Mr Baonza said that he was mostly in conversation with Mr Sausa who was sitting directly behind Mr Jaggers in the usual trainer's seat. Mr Sausa continued his assessment and directed Mr Jaggers as required. As a trained Peer Support Officer Mr Baonza made sure he did not interfere with the training in any way. He did not consider that any bus driver in training would be interfered by an extra person sitting on the bus. He maintained that he found it unbelievable that two people talking on a bus could distract a driver or a trainer from doing their duty. He did not accept that it could whether with one passenger and a driving assessor or with 115. He did not talk non-stop to Mr Sausa. Mr Sausa did not raise any issue with him being present. If he had raised any issues he would have followed them to the letter. 117He believed Mr Jaggers took the training seriously that day because if he didn't pass the training would not be driving the next day. 118It took about 20 minutes to drive to Randwick Depot. When they arrived at Allison Road he met Mr Eddy who said hello to Mr Jaggers and they spoke for a couple of minutes. Mr Baonza and Mr Eddy then walked to the coffee shop, had a conversation and generally caught up. At no time did he enter the Randwick Depot nor did he speak to anyone at the Randwick Depot other than Mr Eddy. 119At some point while he was with Mr Eddy he received a call from Mr Jaggers who advised they were now heading back to Ryde Depot and he asked him if he would be interested in a lift back to Tempe Depot on their way to Ryde. He accepted the offer. He was picked up outside the coffee shop and they headed back towards Tempe Depot. Once more Mr Sausa assessed Mr Jaggers' driving and Mr Baonza made sure he did not interview with this process. When they got near the Depot, and as traffic was starting to build up on Princes Highway, he asked Mr Jaggers to drop him off just before the Depot so they would not have to drive in as turning right out of the Depot into Princes Highway at that time could be difficult. He got off about 200 metres before the Depot and walked the rest of the way. 120He said it was Mr Jaggers he spoke to on the phone, He didn't speak to Mr Sausa as he didn't have his number. Mr Jaggers could speak to Mr Sausa and ask him if it was okay. 121At some point the Radio Room contacted Mr Jaggers, although he could not remember if it was on the way to Randwick or on the way back. Mr Jaggers had a conversation with the Radio Operator but the Radio Room did not direct Mr Jaggers, or Mr Sausa who was in charge of the bus, to do anything, or voice any concerns. The Radio Room had the ability to direct Bus Operators. 122That afternoon Mr Jaggers advised him that he had been taken into the Depot Manager's office and "interrogated" about the events of the day, as had Mr Sausa. They were both extremely surprised because the events of the day were common practice and did not breach any known STA policy. 123Mr Baonza later found out that both Mr Jaggers and Mr Sausa were issued with Notices of Misconduct. He was very surprised by this as from his years as an employee Delegate and Union Official he had never encountered a similar charge. Policies in relation to use of STA Resources were always applied to Administration and permanent staff not to Bus Operators. 124He deposed that in all his years with STA he had never seen, heard of, or negotiated a policy in relation to Driving Assessors operating in particular areas according to Depot, in fact the opposite was the case. Assessors were encouraged to show drivers as many routes and Depots as possible because they could be sent or transferred anywhere in STA. 125He maintained that during the time of the investigation other Assessors from other Depots, including Kingsgrove and Port Botany, visited Tempe under the same circumstances, that is to rest and say hello to friends. He took photos of this on his mobile phone and showed them to the Depot Manager, Mr Rabbitt, and asked why Mr Jaggers and Mr Sausa were being treated differently. 126Mr Baonza confirmed that Mr Jaggers's visit to Tempe Depot had not been pre-arranged. 127Mr Matthies was Acting RTBU Executive Officer at the Ryde Depot on 1 July 2011 while Mr Jaggers was performing his retraining shift. His evidence concerned a conversation he overheard between Mr Jaggers and Mr Peter Rowley STA CEO later that day outside the administration building at Ryde Depot. Mr Rowley had been present at the Depot as a consequence of a visit there by the Transport Minister, Ms Gladys Berejiklian. 128Questions were subsequently directed to Mr Matthies by Mr Connor. However as no questions were put to Mr Jaggers about this conversation the Board was not prepared to accept this evidence as having any relevance to the issues before the Board for determination. 129Mr Matthies deposed that he had asked Mr Lazarou (on 12 July) to show him any work instructions issues to BOT2s specifying where they were and were not to go when conducting retraining and was told "You'll find them". He had conducted his own enquiries of STA records and was unable to find anything about training having to be done within any particular geographical areas. 130He had also asked Mr Lazarou what had prompted the issuing of the E1 and was he immediately printed and handed him a copy of an email to him from Mr Rabbitt (Exhibit 1-1). 131Mr Matthies also deposed that he agreed to the requests of Mr Jaggers and Mr Sausa to act as their representative in the disciplinary proceedings against them. He did not see this as a potential conflict of interest between the two drivers. He sent an email to Ms Fontana asking for clarification as to how Mr Jaggers misused STA's resources and his actions were not in the best interests of STA and to provide him with the BMS references he had been searching for concerning the conduct of retraining shifts and carriage of fellow employees on STA Buses. She failed to furnish him with any of this information and simply referred again to the wording of the allegation. 132Mr Matthies also deposed that he'd had further correspondence with Ms Fontana regarding the interviews she intended to conduct during her investigation in which he asked her to provide him with the evidence she planned to refer to in the interviews, put the issues she wished to ask in writing, and have all of the persons named in the Form E1s present at the interviews. 133Mr Matthies could not recall precisely at what time on 1 July Mr Jaggers came with him to the meeting he had with management. He conducted his union matters between 9 and 11 am. He could not recall what the duration of the meeting was or when it concluded. 134 Mr Matthies also described to the Board the facilities that were made to Union delegates at the Depots and agreed that they had access to STA policies and procedures. 135Mr Matthies could not recall making the statement concerning interviews as referred to by Mr Lazarou (Exhibit 7) and saying - "forcing someone to an interview/inquiry is in breach of the staff regulation", but he agreed that was not inconsistent with his beliefs. He confirmed that he was referring to the provisions of the Transport Administration (Staff) Regulation 2005 and in particular Clause 31 (of Division 3 Disciplinary proceedings against STA officers) as follows: 31 Procedure in disciplinary proceedings 1)An STA officer who is subject to disciplinary proceedings is entitled to be notified in writing by the STA of the charge and the particulars of the charge. 2)A formal hearing is not required to be heard before the person or body investigating the matter of subject of any charge, but the STA officer charged may make representations to that person or body. 136Mr Matthies said he was not a lawyer but his interpretation of that provision was that it was not essential to have a formal hearing, however the person who was charged may make submissions or approaches to the persons conducting the investigation. He agreed that STA had the right to conduct a disciplinary interview but he didn't see that the person charged was obliged to attend. Submissions on behalf of the Respondent 137Mr McLean made oral submissions in addition to the written submissions as filed (Exhibit 5) and in doing so referred to the events as set out in the background and Chronology above as well as the relevant evidence. 138There was little dispute as to the actual events of the day the issue appeared to be why it occurred and what role Mr Jaggers played in those events. 139In relation to Charge 1 STA submitted that the transportation of Mr Baonza had not been denied. It was portrayed as a happy coincidence that the bus arrived there at an opportune time that would allow them to give him a lift. STA believed that was evidence that there was some pre-planning involved and Mr Jaggers was party to this arrangement. At the time the use of the bus was supposed to be for a training shift and not a quasi taxi service. 140In relation to Charge 2 concerning the misuse of STA resources the actual time for one-on-one training had been reduced substantially by visits to the Depots and by unscheduled meal breaks and also during the time when Mr Baonza was transported as heard in the evidence. 141In relation to Charge 3 concerning the use of TA's resources Ms Fontana's evidence as to the costs incurred in retraining was relied on. It was submitted that clearly STA did not receive value for money and not in STA's interests in the way the shift was used. Mr Jaggers had an obligation under his employment contract to act in the best interests of his employer STA. 142Mr Mclean responded to the mitigating reasons put forward as to why Mr Jaggers was not guilty as follows: Mr Jaggers was under the supervision of a BOT2 It was not denied that the BOT2 was in charge. He was the supervisor and must accept a fair amount of responsibility for what happened. he had been disciplined and accepted the punishment. STA believed he was influenced if not intimidated by Mr Jaggers as a result of the position he held within the Union and the formal/informal power he exercised at the Depot. The prime mover for the late departure from Ryde depot, the route selection, the depot visits and timing of breaks was instigated by Mr Jaggers. STA procedures were unclear at the time It was conceded there were no procedures prohibiting travelling outside the bus operating area for retaining. However any retraining, course or route must be based on training needs and that was within the judgement of the BOT. There was no evidence the visit to the Depots enhanced the training of Mr Jaggers at all; it involved substantial highway running; the evidence was that there was no highway running conducted, assessed by the BOT2 or contributing to the training outcomes. It was common practice that retraining is undertaken outside the area The examples given in evidence were referred to and it was submitted that it must be based on training needs and that licence upgrades addressed different criteria to a retaining. It was common practice to give other employees lifts It was not denied but the evidence was that occurs when the bus is running special, between staring points or coming back to the Depot, not on one-to-one training. The trip to Waverley was sanctioned by the Depot Manager at Tempe Firstly, it was claimed by Mr Baonza that there was a group meeting at which Mr Rabbitt was present and through his silence made no objections to the trip. This evidence was refuted by Mr Rabbitt and supported by the evidence of Mr Singleton. Secondly, it was claimed Mr Rabbitt did not tell Mr Jaggers he could not have a rest break, but his evidence was that he did not know Mr Jaggers was on a retaining shift. Mr Jaggers had been victimised because of his union activities No evidence was put forward nor was the issue raised by Mr Jaggers during the investigation, nor was it raised with Union Officials nor was any relevant notification made to the Industrial relation Commission. It was first raised in submissions on 20 February 2012, seven months after the investigation. STA submitted the evidence was that Mr Jaggers misused his position as delegate rather than management discriminating against or victimising him. The allegations against Mr Jaggers were not clear STA responded on 2 occasions to his requests for further information. He failed to appear at a disciplinary interview where further clarification would have been available, Mr Baonza conceded ASTA's disciplinary procedures contained the essential elements of procedural fairness and during his time as RTBU Secretary no procedural fairness issues were raised with STA about those procedures. Mr Wheeler the reviewing Officer indicated STA's procedures had been followed and Mr Jaggers had been afforded procedural fairness. 143Mr Mclean submitted that the more controversial issue to emerge from the evidence was the dispute as to the words spoken by Mr Jaggers when he arrived at the Tempe Depot. STA's evidence (Mr Rabbitt, Mr Lazarou and Mr Singleton) was that it was "pick up" and Mr Jaggers' claim was "catch up". His representative was given a copy of Mr Rabbitt's email to Mr Lazarou confirming those words on 12 July 2012 . He confirmed he had that in his possession yet did not dispute those words, claiming he didn't understand the changes. It would have been very clear from those words that they had some significance and inference. As a result of Mr Baonza's and his concern it focussed on pre-arrangements that it was reasonable to assume those concerns would have been conveyed by him to Mr Jaggers given closeness and regular contact (on his evidence). The words were not refuted in Mr Jaggers' witness statement and the first time it was raised was in evidence. 144Mr Mclean, in response to a question from the Board, also submitted that even if the visit had been a social "catch up" they were already in the Depot for 15 minutes waiting for Mr Baonza's return and it would be reasonable assume they would have spent some time together and once again it would have been inappropriate, not work related and not related to the retrain. 145Mr Mclean submitted that if the Board was to believe Mr Jaggers' version of events then the Board would need to accept a whole string of coincidences had occurred. A coincidence that the departure from Ryde depot was delayed for one hour and not to coincide with the arrival at Tempe; coincidence that they arrived within ten minutes of Mr Baonza completing his shift; coincidence that was on the day he happened to need a lift and that Mr Jaggers had already planned to be going to or near Randwick Depot, and coincidence that the meal break at Waverley delayed the trip to coincide with Mr Baonza needing a lift back to Tempe. 146The Board was referred to the relevant extracts from STA's Code of Conduct those being 4c, 4.4d, 4.9 and 4.18. It was submitted that Mr Jaggers had been issued with a copy of the Code and that his actions on 1 July 2011 were in breach of the Code and he should have been fully aware of the situation. 147STA at all times provided Mr Jaggers with an opportunity to respond to the allegations against him in the Form E1. The Form E1 detailed the Charges Issued to him, and the Particulars provide information for the Charges to be understood by him. He was advised of the Regression, and the reasons for the Regression. STA also provided him with a number of opportunities to attend a discipline inquiry. It was submitted therefore that Mr Jaggers was afforded procedural fairness throughout the disciplinary process. 148It was submitted that as a Shed Driver, Mr Jaggers should have been aware of his responsibility to use STA's resources appropriately. He had a history of misusing STA resources. He had been issued with a performance discussion letter in March 2009 and a final warning letter in June 2011 and in the circumstances should have been fully aware of his responsibilities regarding the use of STA buses. That previous disciplinary action appeared to have not effectively inspired him to correct his behaviour and conduct. 149It was submitted that the punishment of regression and Final Warning was reasonable in the circumstances and consistent with STA guidelines. The punishment was also fair and appropriate and at the lower end of the scale of what options were available to STA. 150It was also submitted that it should be accepted that Mr Jaggers was uncooperative during the disciplinary process. Further he had not shown any contrition or acknowledge his accountability and accept responsibility for misusing STA's resources. There had been a constant attempt to transfer the blame to someone else for example the BOT2 who was supervising, everyone else does it, the Depot Manager sanctioned the actions that were about to occur through his silence, he didn't tell him he couldn't have a break, the STA rules were not clear and all this excused him from any responsibility at all and from responsibility to act in good faith towards his employer and lastly that management was victimising him falling back on the colloquial immunity of the position of a union official. 151In conclusion STA submitted that the Board should dismiss the appeal. Submissions on behalf of the Appellant 152Mr O'Connor from the RTBU also made oral submissions on behalf of Mr Jaggers in addition to the written submissions as filed (Exhibit 13) and in doing so referred to the events as set out in the Background and Chronology above, as well as the relevant evidence and generally elaborated on the written submissions. 153In relation to Mr Jaggers declining to attend the disciplinary interview it was submitted that Ms Fontana, in threatening "additional" disciplinary action and subsequently pursuing this action and requesting a further written explanation, both exceeded the scope of her initial investigation, and through the process compounded and laid the foundation for further disciplinary action. 154It was further submitted that the tone and language of Ms Fontana's correspondence was such that it was predicated on an investigation to find a disciplinary outcome, rather than elicit co-operation and participation in an interview for clarification. 155It was submitted that Mr Jaggers had been denied procedural fairness, as at no time since the alleged incidents, was any information or evidence provided by STA relating to the process, details, evidence relied on, or the basis of the allegations and investigation it maintained found breaches by him. 156It was submitted that Mr Jaggers' decision not to attend the interview was a judgement he made that he'd provided all the information he could and did not believe the situation would be improved by attending an interview. 157It was also submitted that the investigator did not consider all of the evidence but rather the evidence that best fitted the allegations. It terms of procedural fairness it would be expected that other evidence would be considered such as evidence from Mr Bruce Eddy about any pre-arrangement given that the Randwick Depot Manager was contacted. There was no evidence from Waverley Depot to support or not support the issue of the meal break. There was also the issue of the doubt about the documentation concerning what competencies were assessed. There were several steps that could have been investigated and were not. 158It was also submitted that the allegations contained in the E1 and the subsequent charges were couched in very vague terms. 159On the date of the alleged incident, the bus being operated by Mr Jaggers (2758) was rostered on a retraining shift, under the direct supervision and control of BOT2 Sausa. Each of the charges alleged that on the day in question, Mr Jaggers "requested to attend" the designated Depots, and that he had used the retraining shifts for his "own purposes, or for purposes not primarily for allocated retraining", without any explanation of what these alleged purposes were. The charges further alleged that Mr Jaggers requested to "operate ...retraining shift outside the regional service area". 160STA's Investigation Report did not add any clarification to the charges, the findings of the investigation, or the basis of the disciplinary conclusions. It relied on any alleged inconsistencies or uncertainty in the recall of Mr Baonza, yet based its findings on an equally vague statement by Tempe Depot Manager, Mr Rabbitt that he asked Mr Jaggers for the reason for his visit. This documentation did not include any explanation of the findings of the investigation or the basis for the finding that the charges had been established. 161It was submitted that in relation to the first allegations, the route/s for retraining purpose would be as a result of consultation between the Bus Operator and the Bus Operator Trainer, and dependent on a range of variables and circumstances, with the ultimate discretion and control being with the Trainer. 162In relation to the "own or other purposes" allegations, it was submitted that no such purpose had been clearly alleged, identified or substantiated, making it impossible for Mr Jaggers to adequately respond to these charges, beyond a blunt denial. 163Further, in relation to the allegation relating to "operating outside service region", it was submitted that at no time during the investigation had any evidence or support been provided for this allegation. Indeed, it was submitted, this was also commonly at the discretion of the operator and trainer, and was not subject to, or limited by, any clear policy directive. Statements filed by STA clearly indicate that there is no policy restriction in relation to this matter. 164It was submitted that whether or not the charges alleged could be substantiated, at all times on the date of the re-training shift, the control of the bus and relevant decisions about routes and locations, and taking onboard other staff members, was at the discretion of BOT2 Sausa. 165Further, it was not clear which elements of the charges, or subsequent investigation, constituted the alleged breaches of the STA Code of Conduct. There was no obvious policy directive which clearly outlined or provided guidance on routes for re-training shifts, the appropriate time allocations for components of the retraining shift, or whether such shift can be used for the transportation of another employee. 166It was also submitted that the implication and discussions around the charges, more than coincidentally coincided with an election for a union position, and concern that the bus in question was being used in some connection with this election. There was veiled reference to this in a number of the documents filed by STA. If this was in fact the case, the process gave rise to a potential consideration of breaches of Section 210 of the Industrial Relations Act 1996 relating to victimisation on the basis of union activity and the available remedies under Section 213 of the Act. 167Mr O'Connor also maintained that the process had been further clouded by a lengthy delay in interviewing Mr Baonza, at the time a Bus Operator at Tempe Depot, and central to the allegations. Indeed, Mr Baonza's record of interview did not support the allegations outlined in the charges, yet no reference was made to these or other evidence going to contradict those charges. Delays in seeking to interview Mr Baonza, and make similar allegations against him as an employee of the STA, a party to the alleged 'misuse of resources', at best raised questions about the process, and at worst, raised the concerns referred to earlier. 168Mr O'Connor rejected the submissions made by Mr McLean concerning the Board being asked to accept that a series of coincidences happened. It was contended that the decisions made by Mr Jaggers and Mr Sausa were reasonable judgements to make rather that deliberate misbehaving. The issue of any pre-arrangement between Mr Jaggers and Mr Baonza was purely speculative and the testimony of those two was that there was no such pre-arrangement. That had not been substantiated or proven. 169There was also no management intervention during the course of the shift yet there was communication between managers but no attempt to caution, redirect or warn or instruct. That included the Radio Control room who contacted them midway, had authority to also issue instructions and either chose not to or did not see a problem at the time. 170Mr O'Connor submitted that raised the question of what was the actual wrongdoing and all that was left was the taking of the two breaks. He could find, and no-one had said that there was any policy to say that it was not an appropriate thing to do during a retaining shift. There was also no evidence to say that it was policy that no-one else be on the bus when one-to-one training was being undertaken given that the first part of the shift was in-service. 171On the subject of penalty Mr O'Connor submitted that a different disciplinary outcome was applied to Mr Sausa. 172Mr Jaggers was appealing the disciplinary decision of STA, seeking to have the decision overturned and the disciplinary measure of regression withdrawn. 173In conclusion Mr O'Connor submitted that some of the references to "own purposes" were based on erroneous assumptions and could not be substantiated through the investigative process which found the need to justify itself on whatever evidence was available. It was still not known what those alleged purposes were. It was submitted that while the findings were that the charges were proven it was contended that selective evidence was used and that the charges were not proven. There was nothing in the evidence to prove any of the substantive charges and on that basis the appeal should be upheld. Submissions in Reply on behalf of the Respondent 174Mr Mclean also made oral submissions in addition to the written Submissions in reply (Exhibit 6) and in response to the submissions of the RTBU. 175Mr McLean rejected the submissions made concerning lack of procedural fairness and submitted that Mr Jaggers was afforded procedural fairness and the investigation process undertaken by STA did not prejudice him in any way. He was made aware of the nature and the details of the allegation against him, which was given to him in writing. During the disciplinary investigation process he was given an opportunity to provide an explanation for his behaviour through his written response to the allegations. He was also given an opportunity to attend a disciplinary interview to clarify aspects of his written response to the allegations and also to put forward further explanations to the Investigating Officer. Although Mr Jaggers declined to participate in the disciplinary interview, he nevertheless was given the opportunity. He was offered the opportunity of a support person throughout the disciplinary process as well as having access to the Employee Assistance Program during the disciplinary process. 176Mr Mclean submitted that the disciplinary investigation was conducted in accordance with STA procedures which included a review of the investigation process and a review of the findings and Mr Jaggers was advised in writing of the reasons for the punishment of regression. 177In response to the evidence of Mr Boanza concerning Mr Rabbitt Mr McLean contended Mr Rabbitt was not present during the group meeting outside Tempe Depot meal room on 1 July 2012. This contention was supported by Mr Rabbitt's evidence both in his written and oral evidence. Mr Rabbitt's evidence was also confirmed by the evidence of Warren Singleton. 178Mr McLean also rejected the submissions made that the investigation didn't pursue certain points such as a further statement from the Randwick Depot Manager who simply confirmed the two facts Mr Eddy told her about having coffee with Mr Boanza and the timing of that, there was no need to follow that up. Similarly there was no dispute about the timing of the meal break at Waverley or need for follow up. 179On the issue of the competencies Ms Fontana as the Investigating Officer also investigated the charges against Mr Sausa and that would have been part of the evidence and she may well have firm knowledge of that. Also it w as commonsense that a number of those competencies had no relevance to the reason for the retrain, which would have been discussed between the Trainer and the Staff manager and the relevant competencies picked out. 180Mr McLean also responded to the issue of the different penalty applied to Mr Sausa and indicated that arose as a consequence of conciliation proceedings before the Board (not as currently constituted) and that other factors and history was involved and they were different situations. Findings 181This is an appeal under clause 32 of the Transport Administration (Staff) Regulation 2005 against STA's decision to impose on Mr Jaggers the punishment of regression from Shed Driver to Bus Operator Level 1 for a period of three (3) months (or 13 weeks). 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. 182Mr Jaggers in his Notice of Appeal has pleaded 'Not Guilty' and disputes the punishment imposed on him by STA. 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 STA 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]. 183The 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. 184The Board has very carefully considered all of the evidence, both oral and written, and the submissions of the parties in this matter. 185At the outset the Board would express extreme concern as to the possibility that officials of the RTBU at the central level, not just the local level of Mr Jaggers and Mr Matthies, would routinely advise members not to participate in disciplinary interviews, and further require that questions be provided in writing and in advance of such an interview as a precondition to any participation. 186The Board has many, many years practical industrial relations experience in both the public and private sectors and it has always been the experience that the opportunity for, and, participation in a properly recorded/minuted meeting (with such record provided to the employee for verification) and at which an employee has the opportunity of responding to allegations, providing further relevant information (that may in turn lead to/necessitate follow up as a result) is an integral and crucial part of a properly conducted investigation or fact finding exercise and in accordance with procedural fairness. 187The Board has not previously, in all those years of practical experience, ever encountered employee representatives predicating attendance at such interviews was dependent on the provision of written questions in advance. That has certainly not been a practice ever encountered by the Board (except in one very unusual situation where a person was not able to attend an interview concerning very specific facts, due to a certified medical condition, but was willing and able to provide written answers to written questions, and duly did so). 188Generally in the public sector, employees are first given an opportunity to respond to allegations/charges in writing, with a subsequent opportunity/invitation to attend a face to face interview. The Board has found over the years that where employees have not availed themselves of that opportunity (or where an interview was only available on request and not sought) then those employees have generally subsequently been disadvantaged. That disadvantage has arisen either because some relevant issue/evidence that could have been taken in account by either by an investigator or decision maker (or both) was then not been able to be so taken into account because it was not known due to the absence of any interview. In turn that may have had consequences for the final decision on not only whether a disciplinary penalty would be imposed in the first place, but also the nature of any disciplinary outcome for an employee. Further, such issues/evidence will usually then only come to light through formal witness statements, or indeed sometimes not until oral evidence at the time of a formal hearing by which time it can often be too late to have any positive impact on the outcome for the employee. 189There is of course no doubt that any admissions made during such an interview can be relied on subsequently by an employer. Where difficulties arise between what is said in an interview and what information/evidence comes to light later on down the track (or was previously indicated in a written response) is where an employee changes their version of a event, or fails to provide some reasonable relevant fact at that earlier stage. That will often raise issues of credit. 190The Board rejects the interpretation placed on Clause 31 of the Regulation by Mr Matthies. All that provision does is say that a formal hearing does not need to be held and says the officer may make representations. It does not even say what form those representations may take. It does not give authority for a person not to attend an interview in the circumstances referred to below. 191Following general procedural fairness rules representations would usually be made either in writing or in person, or both. Certainly an employee can decide not to avail themselves of that opportunity and make no representations at all, either in writing or in person. In the Board's view that would be extremely unwise and not in the employee's best interests. The STA would then be left in the position of proceeding to a disciplinary investigation and determining an outcome based on what information/evidence was available. They would have no other alternative. 192What the Regulation does not do however is preclude STA from issuing a formal direction that an employee attend a disciplinary interview. 193The Board would indicate that as far as the first letter that Ms Fontana sent to Mr Jaggers on 3 August 2011 is concerned, that letter did not actually contain an explicit direction that he attend an interview on 5 August at the Ryde Depot. The language used was "I have arranged an interview". There was no direction to attend and it was made clear that if he did not provide a response she would make her recommendations based on the information provided to date. Again, not suggestive of a direction to attend. 194However, Ms Fontana's second letter of 4 August (and referred to below) does refer explicitly, on the second page, to a direction to attend and the consequences of such non-attendance. 195The Board makes it crystal clear that, depending on the circumstances and the nature of the allegations/charges to be investigated, STA (and indeed any employer) has the right to issue a direction to an employee/s to attend such an interview (with the usual rights of a support person present and a transcript of the interview to be provided). Refusal to attend by an employee without reasonable cause (such as genuine illness supported by a medical certificate etc.,) would then constitute refusal of a reasonable and lawful direction of the employer and may of itself give rise to separate disciplinary proceedings. 196Whilst it is evident that Ms Fontana contemplated issuing formal disciplinary proceedings by way of the issuing of further E1s it is clear that Mr Lazarou determined not to take that action. 197The Board would suggest that in future, should STA seek to require the attendance of an employee at a disciplinary interview (or indeed any interview), then it needs to make it explicitly clear in writing, in any initial letter sent to an employee about an interview, that a direction to attend is issued and the consequences of failing to comply with such a direction. In the absence of such a direction then an employee could decline to attend. 198Where such a direction in writing is issued obviously there may be genuine circumstances where an employee is unable to attend but those would have to be appropriately established by the employee (such as illness or unavailability of nominated support person and alternate date sought). 199The Board does not accept the criticism of the RTBU concerning the tone of Ms Fontana's letters or STA's actions during the investigation process. Due procedural fairness was afforded to Mr Jaggers at all times. 200The Board considers that in fact STA bent over backwards to accommodate Mr Jaggers' and Mr Matthies' concerns, arrange an alternate convenient date as requested and provide requested information. That is clear from the correspondence exchanged between the parties. 201The Board considers that it was entirely appropriate and reasonable for Ms Fontana to refuse to provide the questions in advance as requested, or that representations be allowed to be made by the support person, or that all persons involved be present, and the interview be conducted in the meal room. Those requests were quite frankly over the top and entirely unreasonable. Ms Fontana expressed the reasons for such refusal quite cogently, and correctly in the Board's view, in her letter of 4 August 2011 in reply to Mr Jaggers (Exhibit 3-2E) as follows: ................................ There is no issue of Union representation during the interview as the clarifications we require are from you, based on your knowledge, understanding and recollections of events. Some clarifications may relate to facts, others to your understandings and recollections. We therefore need your specific responses in order to reach a view which is based on a proper understanding of the issues. To this end, it is neither practical nor appropriate for someone to speak on your behalf. This does not preclude a person of your choice (who may be one of your union officials) attending with you on the basis advised in my letter of 3rd August 2011. If necessary, throughout the proceedings, you may request a break to seek advice from your support person. The purpose of the interview is to clarify the events outlined in the E1 and some of the responses that you have provided. The interview also provides you an opportunity to comment on any evidence that may conflict with your version of events. Some of the questions asked may be predicated upon the initial responses to questions which will be asked at the interview. Accordingly, it is not proposed to provide you with the full range of interview questions prior to the interview. Issues of privacy, equity and propriety would make it highly inappropriate conduct such an interview in a public place. We would not contemplate an interview in the meal room. Should any issues arise in the course of the investigation (including any which may arise from the interview), which I consider are in need of clarification that Mr Rabbit (sic), I will seek that clarification from him. You will be provided with an opportunity at the interview to make any submissions on Mr Rabbit's (sic) version of events, or any other matters. ................................... 202Both Mr Jaggers and Mr Matthies had sought further information about the Charges. The Board considers that the Charges and the Particulars of the Charges were sufficiently specific to enable an appropriate response. 203In contrast, the Board has encountered in other public sector areas charges/allegations concerning breaches of a particular department's Code of Conduct or a Policy that are so generalised and lacking in specificity as to make any proper response well nigh impossible. 204It should have been patently obvious to both men, and to blind Freddy, as it was to the Board that the STA resources involved in the charges were an STA bus and the time of an STA Bus Operator/Bus Operator Trainer, not to mention the purpose for which the shift was being undertaken. That neither Mr Matthies nor Mr Jaggers maintain they knew what resources were alleged to be involved is of some concern and stretches incredulity. 205Similarly, the issue raised about just what was meant about "own purposes" also strains incredulity. STA did not know to what purposes the STA resources were put. That is what they wanted to find out and clarify from Mr Jaggers through an interview. What STA did have was the email from Mr Rabbitt which he sent to Mr Lazarou at 2.43 pm on 1 July 2011 (at Mr Lazarou's request following the telephone call to him earlier that morning) in which Mr Rabbitt said that he was told by Mr Jaggers that the reason for him being at the Tempe Depot (with BOT2 Sausa) in a Ryde bus was "to pick up Raul". That was clearly insufficient information to be able to state unequivocally what those purposes were - that was information that need to be ascertained from Mr Jaggers and BOT2 Sausa. 206Mr Jaggers would have been well aware of just where STA were coming from however as Mr Lazarou gave Mr Matthies a copy of Mr Rabbitt's email on 12 July (the day the Form E1 was handed to Mr Jaggers) in response to Mr Matthies' query about what had prompted the E1. 207As Mr McLean quite rightly pointed out, they were both, from day one fully aware of what the issue of dispute/concern was about. It is disingenuous in the extreme for Mr Jaggers and Mr Matthies (and indeed Mr O'Connor) to continue to protest that they had insufficient information or did not know what was it was that Mr Jaggers had done wrong. 208That brings the Board to consideration of the charges against Mr Jaggers and the penalty imposed by STA. 209The Board is satisfied on the balance of probability that the charges are proven and that on the 1 July 2011 Mr Jaggers and BOT2 Sausa travelled to Tempe Depot with the express purpose of giving Mr Baonza a lift to Randwick to meet Mr Bruce Eddy (for coffee), and that in then arranging to pick him up afterwards they effectively arranged the retaining schedule to fit around that purpose. 210The Board was singularly unimpressed with Mr Jaggers as a witness, he was at times evasive, changed responses during his evidence and was not entirely truthful or forthcoming. The Board also considers that Mr Baonza was not truthful in the evidence he gave about the group meeting at the Tempe Depot and not totally forthcoming in spite of the extensive detail he sought to give about his knowledge of policies, procedures and practices. 211The Board accepts the evidence of Mr Rabbitt about what occurred at the Depot that morning, as confirmed by Mr Singleton (whose evidence was unchallenged). Mr Rabbitt conveyed that information verbally over the phone to Mr Lazarou and confirmed that conversation and the contents thereof in an email to Mr Lazarou later that afternoon and that email can be therefore regarded as a contemporaneous record. 212The Board has carefully considered the written responses of Mr Jaggers and BOT2 Sausa and the interview record of Mr Baonza as compared with the evidence. There are clear inconsistencies which were not resolved and only compounded through the oral evidence and which are inconsistent with the evidence of Mr Rabbitt and Mr Singleton. Whereas the evidence of STA remained consistent throughout. 213The Board does not accept that the decision to visit Tempe Depot was solely that of BOT2 Sausa, in spite of what he says in his response to STA. The Board also agrees that Mr Jaggers' position of Union Executive at the Depot did place him in a position of informal power and influence over the BOT2 who would have then along with his proposals (such as going to assist Mr Matthies rather than proceeding to commence the second half of the retrain as scheduled) and including visiting Depots rather than driving around generally, but with the training needs as the primary purpose. 214There was no issue pressed about conducting the retrain outside of the normal area (although one could question why the adjoining areas of Kingsgrove and Leichhardt would not have been equally if not more appropriate), nor indeed giving lifts to other employees in appropriate circumstances (as per the examples given in STA's evidence). However conducting a retrain with the purpose of driving around Depots on what amounted to a private frolic was not reasonable and an improper use of STA resources. 215If indeed, as BOT2 Sausa responded to Mr Lazarou, the plan was to go the Tempe for a "toilet break" that was a break that could have been achieved with the two men back on the road before Mr Baonza returned to the Depot rather than taking 22 minutes. They were clearly waiting for Mr Baonza. If the intention was to "catch up" then that would still have been an excessive and unwarranted break and not within the purpose of a retrain. 216Even if picking up Mr Baonza was not planned and arranged (and the Board does not accept that scenario) then conveying him to and from Randwick on a retrain was entirely inappropriate. Mr Baonza admitted that he spoke to the BOT2. The Board has no doubt that he did, and to Mr Jaggers as well. Mr Baonza is known to the Board through his appearances in his former Union capacity and he is articulate and confident speaker and not backward in coming forward. While the Board has no doubt that Bus Operators as professional drivers can ignore the distraction of passengers talking, the difference in this situation was that the two men were being spoken to and engaging in conversation when a retain was supposed to be in progress. That is entirely different to giving a lift to an employee in the circumstances referred to in the evidence of the STA witnesses. Indeed the Board has observed the sign at the front of STA buses directing passengers not to engage the driver in conversation. 217It is entirely probable, and the Board accepts, that Mr Baonza did have a pre-arrangement to meet up with Mr Eddy that involved him travelling by train to Bondi Station. That does not preclude, however, a subsequent arrangement being entered into between Mr Baonza and Mr Jaggers for a lift to and from Randwick Depot and made prior to arrival at the Tempe Depot. That changed arrangement would have required Mr Baonza to contact Mr Eddy to change the meeting place. 218The Board notes somewhat interestingly that Mr Jaggers has always referred to the routes taken as encompassing Randwick Depot and that the intention was to "visit Depots", but it is clear from the STA PTIPS of the bus used that they did not actually go the Randwick Depot either to drop Mr Baonza off or pick him up (apparently at his request) but dropped him off nearby/picked up outside the coffee shop. Again somewhat conveniently they drive into the Tempe Depot to drop him off but dropped him off just before the Depot (again apparently and conveniently at Mr Baonza's request and supposedly due to traffic concerns). This raises doubt in with the Board as to whether the real purpose was to avoid going into Depots where undue attention might be aroused if they were seen to be dropping Mr Baonza off. 219The fact that they didn't actually visit Randwick Depot would certainly have meant that, other than the questions directed at the Randwick Depot Manager by Mrs Fontana, there was no point in seeking further information from that Manager. Nor was it necessary to interview Mr Eddy who would merely have confirmed the arrangement he had with Mr Baonza, that they did indeed meet for coffee, but he was not present at the Tempe Depot earlier that morning and would not have been able to give any direct, first hand information/evidence that would have shed any light on what transpired. Similarly the issue of the Radio Room is not relevant. There was no evidence about precisely what was said and at the time of the call to Mr Jaggers there would have been insufficient information about just what was going on and why to enable instructions to be issued and in any event they were apparently on their way back, ultimately to Ryde. 220If there was other further relevant evidence that Mr Jaggers wanted to rely upon then that should have been brought up in the context of the interview arranged by Ms Fontana. 221On the issue of the break at Waverley, that does seem excessive to the Board, given the breaks and delays that had already occurred that shift. Perhaps in future STA need to give some more specific direction to BOT2s about when, and in what circumstances, breaks should be taken on a retrain. 222However it still remains that overall there was only a portion of the available training time utilised in the second half of the retrain shift conducted by BOT2 Sausa that day, not even half, and that represents a poor return for STA's investment in the time and training regime it conducts. The Board agrees with the figures put forward by Ms Fontana. 223The Board also considers that notwithstanding that BOT2 Sausa signed off on the retrain, it does raise doubts for the Board as to whether, in all of the circumstances, it could possibly be considered a successful retrain. That is without being able to definitively resolve the issues about just what competencies were being assessed in the absence of that issue being clarified with the BOT2/Mr Jaggers in an interview. 224The Board notes however that the competencies in Exhibit 4, at number 30, (and as referred to by the BOT2 in his response concerning open highway running) lists under 'conditions' - "Vehicle loaded". That may or may not mean a bus loaded with passengers, that was not explored in evidence. However the Board does wonder how driving on the 2 lane (no traffic lights) M5 (and presumably partway through the M5 tunnel) replicates the conditions that would be experienced by a driver from the Ryde Depot who need a retrain because of accidents/collisions. The judgements made by the BOT2 that day appear to clearly capable of being called into question, and quite rightly in the Board's view warranted charges, and findings that resulted in a disciplinary penalty being imposed on BOT2 Sausa. 225That there were apparently ultimately different disciplinary outcomes reflects, as Mr McLean points out, differing individual circumstance, different histories etc., and other factors taken into account. In addition, Mr Jaggers has accepted no responsibility for his actions whatsoever and shown no contrition whatsoever. 226 As a Union delegate Mr Jaggers, more than the average Bus Operator, should be aware of his responsibilities as an STA employee, particularly in the light of the two earlier incidents referred to in the evidence, one of which was only the previous month in June. The Board appreciates that was at a public rally of public sector employees generally. However once an employee, rather than using and parking their own private vehicle, uses an employer's vehicle such as a bus, and contrary to instruction, then that is asking for the consequences that subsequently follow. 227Having very carefully considered all of the relevant evidence and submissions of the parties the Board finds on the balance of probabilities that the charges against Mr Jaggers are sustained. The misuse of STA resources by Mr Jaggers was serious, totally inappropriate and compounded by his failure to accept responsibility for his actions, his failure to show any contrition, and as a Union Delegate he ought to have been more aware of his responsibilities as an employee. 228The Board finds that Mr Jaggers has been accorded appropriate procedural fairness. There is also not a skerrick of evidence that the actions taken against Mr Jaggers were because he is a Union Delegate or indeed that he has been victimised in any way because of his union activities. 229Whilst initially the Board did contemplate increasing the penalty, as it has the right to do under s.23(2) of the TAB Act, ultimately the Board has determined that in all the circumstances the penalty imposed by STA on Mr Jaggers of a three month (13 week) regression from Shed Driver to Bus Operator Level 1 is appropriate and will therefore disallow the appeal of Mr Jaggers. Order(s) 230The appeal is disallowed. Elizabeth Bishop Commissioner ********** Amendments 16 July 2012 - Medium Neutral Citation: "[2012] NSWTAB 19" amended to read as "[2012] NSWTAB 18" Amended paragraphs: Coversheet 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: 16 July 2012