Transport Appeal Boards New South Wales Medium Neutral Citation: Murphy v State Transit Authority [2012] NSWTAB 19 Hearing dates: 22 and 23 March 2012 Decision date: 13 July 2012 Before: Bishop C (Board) Decision: Appeal disallowed Catchwords: PUBLIC SERVICE - discipline - Bus Operator - dismissed for pushing passenger off bus - plea of guilty - setting aside of penalty - reinstatement and alternate penalty sought - HELD - charge very serious - constituted assault - no justification for actions - penalty appropriate in all the circumstances - appeal disallowed Legislation Cited: Passenger Transport Regulation 2007 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 Jaggers v State Transit Authority [2012] NSWTAB 18 Category: Principal judgment Parties: Laurence Murphy (Appellant) State Transit Authority Division of the New South Wales Government Service (Respondent) Representation: Daniel Jaggers (Appellant) Mr S McLean Ms V Goeghegan State Transit Authority (Respondent) File Number(s): TAB 2 of 2012 DECISION Introduction 1Mr Murphy commenced employment with the State Transit Authority (STA) on 29 January 1990 as a Trainee Bus Operator at Ryde Depot, becoming a full time Bus Operator in September that same year. 2On 29 December 2011, STA issued a Notice of Punishment to Mr Murphy dismissing him from his position effective on and from 29 December 2011. 3On 29 December 2011, Mr Murphy lodged an appeal with respect to his dismissal by STA. In his Notice of Appeal he indicated a plea of 'Guilty'. 4The matter was listed for disciplinary conciliation before Commissioner Tabbaa on 3 February 2012, 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 12 April 2012. 5The STA presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. Issue(s) 6Mr Murphy pleaded guilty to the charge against him and sought that the penalty be set aside. It is therefore the Board's task to determine the appropriate penalty to be imposed in all the relevant circumstances. Background and Chronology 7The following Background and Chronology has been drawn from the evidence and submissions before the Board as filed by the parties. 8On 20 November 2011, two (2) complaints were received from passengers on the "Your Say Line" regarding an alleged assault by a Bus Operator on Route 501 (Exhibit 2-8) as follows: Logged on: 20/11/2011 3:59:00 AM Customer Experience: Caller complains about the 501 driver on 20/11/2011 at 0325 from George St before Market St in the City to Gladesville. Caller states during the journey tthis (sic) driver had been speeding dangerously. Caller states that before she got off she asked driver what was his speed because she was concerned. Caller states driver then swore at her, said he was in a hurry to get back to the depot, and physically pushed off the bus that she nearly fell on the pavement. Caller states that was a disgusting treatment as she was not drunk and never been drunk in her life and it was a reasonable question. Caller states should be in the CTC camera video and witnessed by other passengers and she believes the bus driver should be sacked. She will call again to give her phone number later. Logged on: 20/11/11 4:06:00 AM Customer Experience: Caller complains on 20/11/11 he was travelling on 501 bus that left George & Bathurst Sts, Sydney at 0330. Caller states the bus stopped at Gladesville shops and the driver physically pushed a young lady off the bus. Caller states the lady looked intoxicated and had argued with the driver but still that is no way for the driver to behave 9STA identified the Bus Operator as Laurence Murphy and a copy of his Work Journal for 19/20 November 2011 was obtained (Exhibit 2-9). 10On 21 November 2011, Mr Murphy submitted a General Report Form (dated 19 November) detailing an interaction with a female passenger (Exhibit 2-10) as follows: Last trip from town woman came from back of the bus and started to throw abuse at me by shouting and swearing and she said I was speeding she then went to strike me with her stiletto shoe I put my arm out to defend myself and she then went of (sic) the bus I shut the door and drove off 11Ryde Depot Manager Nick Lazarou authorised the downloading of the CCTV images from the bus driven by Mr Murphy. The CCTV images confirmed that an incident had taken place between Mr Murphy and a female passenger. An explanatory narrative timeline was subsequently prepared to accompany the CCTV images (Exhibit 2-11). Mr Lazarou then requested Darren Baker, Staff Supervisor to commence formal disciplinary action against Mr Murphy. 12On 22 November 2011, Mr Lazarou signed a Notice of Summary Suspension, (which was issued to Mr Murphy the next day), suspending him from duty, with pay, pending the outcome of the disciplinary proceedings. (Exhibit 3-2). 13On 23 November 2011, Mr Baker also issued Mr Murphy with a Form E1 detailing the following Charge (Exhibit 2-12): Charge 1 20 November 2011 at approximately 03.51 am it is alleged that you breached Section No's 4.1, 4.4c, 4.4i and 4.18 of the State Transit Code when you acted inappropriately and physically assaulted a female passenger by pushing her towards the front door of the bus at the (out bound) Gladesville Shops bus stop. Particulars of Charge 1.On Sunday, 20 November 2011, you were operating shift D501, Route 501 and Run Y2058 from Circular Quay to West Ryde Station. 2.At approximately 03.51 am you stopped the bus at the bus stop at Gladesville Shop (sic) on Victoria Road (outbound) to set down a female passenger. 3.Allegedly you had a verbal dispute with a female passenger. 4.During the dispute you physically assaulted a female passenger by pushing her towards the front door of the bus. 14At the time of issuing the Form E1, Mr Murphy took up the opportunity to view the CCTV images in the company of his Union Delegate, Mr Daniel Jaggers. 15On 30 November 2011, Mr Baker received an email from the local Rail Tram and Bus Union (RTBU) representative requesting an extension of time to respond to the allegations set out in the Form E1 (Exhibit 2-14). Mr Baker granted a one (1) week extension to Mr Murphy. 16Mr Murphy's written response was provided on the 8 December 2011 (Exhibit 2-15) is detailed in the evidence below. Essentially he admitted to "removing" the female passenger, but maintained that he felt threatened and feared an assault. He had been assaulted three times in the past. 17On 8 December 2011, Mr Baker sent Mr Murphy a letter by registered post inviting him to attend a disciplinary interview on 12 December 2011 (Exhibit 2-16). Mr Murphy failed to attend the interview and did not contact the Depot to advise of his inability to attend. 18On 12 December 2011, Mr Baker again wrote to Mr Murphy directing him to attend a disciplinary interview on 14 December 2011 (Exhibit 2-17). 19On 13 December 2011, Mr Baker received a telephone call from Mr Gary Way, the President of the RTBU advising him that Mr Murphy would be attending the interview on 14 December 2011. 20Mr Murphy attended the interview on 14 December 2011, however, before the interview could commence, Mr Murphy handed Mr Baker a letter indicating that he did not intend to answer any verbal questions regarding the incident on 20 November 2011 and requesting that a decision be made on the current evidence or provide him with written questions to answer. (Exhibit 2-18). 21Mr Baker declined to provide the questions in writing as requested and proceeded to finalise his investigation based on the information that was available. 22On 16 December 2011, Mr Baker summarised his findings which were that the Charges were proven, and provided his Investigation Report to Depot Manager Nick Lazarou (Exhibit 2-19). 23On 29 December 2011, Depot Manager Nick Lazarou (in the presence of Mr Baker) issued a Notice of Punishment to Mr Murphy dismissing him from his position on and from that date (Exhibit 3-4). 24Mr Murphy's previous disciplinary history included the following (Exhibit 2- 5 & 6): 1.On 2 August 2011, he was issued with a formal warning regarding operating services prior to the scheduled running times ("early running"). 2.On 6 September 2011, he was issued with a Final Warning letter for early running. Evidence on behalf of the Respondent 25The CCTV footage of the incident involving Mr Murphy and the passenger on 20 November 2011 was also viewed during the course of the evidence before the Board. 26STA's evidence before the Board was contained the Investigation Report (attached to Mr Baker's statement - Exhibit 2) which included Mr Murphy's relevant training and disciplinary history, actual relevant training materials, relevant extracts from STA's 'Satisfy System', relevant extracts from the Code of Conduct (Exhibit 1), the CCTV footage and narrative timeline (which had columns for Time, Camera Description (rear door or driver cam) and Event), and Witness Statements from the following STA employees who also gave oral evidence: Darren Baker.....Assistant Depot Manager, Ryde Depot (Exhibit 2), and Nick Lazarou .....Ryde Depot Manager (Exhibit 3). 27Both Mr Baker and Mr Lazarou deposed as to the relevant chronology of events (and background) that resulted in the dismissal of Mr Murphy and their respective involvement as set out in the Background and Chronology above. 28Mr Baker has been employed by STA since 2006. He has held the position of Assistant Depot Manager, Ryde since January 2012. Prior to this he held the position of Staff Manager at Ryde Depot, and has also held the positions of Operations Manager and Staff Manager at various locations in the Sydney Metropolitan Area. 29Mr Baker deposed that as the Staff Manager he was responsible for the daily management of operational staff at the Depot including Bus Operators, supervisory and cleaning staff. His functions also included the management of employee performance and conduct. In the supervisory roles he had held he had been routinely required to apply STA's disciplinary procedures in the supervision and management of staff. He was also conversant with STA's operations, business records, systems and practices. He also outlined in brief summary the role of an investigating officer. 30Mr Baker said that the complaint from the particular customer came through the 3131500 'Satisfy System'. He confirmed that the notes recorded indicated that - "She will call back again to give her phone number later". However she did not call back. Attempts were made by STA to contact her. 31He outlined those attempts, which he organised: checking back through other customer complaints related to the customer's details as provided to them; going through the white pages and looking at the vicinity where she was dropped off to see the same sort of surnames; contacting several other people to try and find her, but he didn't get any response from that. They were also unable to contact the other complainant. 32Mr Baker said he had wanted to contact the female passenger to ensure her well-being, if she was okay and to see if she had any further information or detail to add to the incident that had occurred. 33Mr Baker also indicated that if a customer wanted to remain anonymous that was their choice. They based it on the complaint and the facts behind the complaint. This incident was a safety related matter so they downloaded the CCTV footage which supported the two complaints they received. 34Mr Baker stated that Mr Murphy's training history included the following relevant matters (Exhibit 2-2 to 4): On 4 August 2000, he was issued with a copy of the State Transit Employee Folder, which included a copy of the STA Code of Conduct; On 7 May 2001 he attended a Workplace Personal Safety Program training session which included strategies for dealing with difficult passengers and ensuring personal safety; During 2006 and 2007, he attended the Skills Maintenance Program which included sessions on customer service; and On 16 December 2009, he attended a Driving Skills Development Program training session which included a session on customer service and strategies for dealing with difficult and/or aggressive passengers. 35Mr Baker also deposed as to the following summary of the printout from STA's Satisfy System which records calls and reports from the public through the "Your Say Line". The printout covered the period September 2002 until November 2011 for Mr Murphy: Failed to Pick Up Passengers.......7 Bus Running Early........................10 Poor Behaviour by Driver..............15 Passenger Injuries.........................2 Bad Driving....................................10 Compliment - Driver Helpful...........3 36Mr Baker deposed that he did not believe it would be realistic to put questions to be asked of Mr Murphy in the disciplinary interview in writing because it would give him the opportunity to "tailor" his responses. Furthermore, written questions would not be practical, in that he assumed that secondary questions arising from the responses to initial questions, would again need to be in writing. 37Following this request from Mr Murphy he proceeded to finalise the disciplinary investigation as he felt that Mr Murphy had been given ample opportunity to put forward his side of the story. He was not involved in determining the punishment for Mr Murphy. 38Mr Baker said that he wanted Mr Murphy to attend the interview because he believed there were some matters that needed to be discussed, matters clarified from his initial General Report and then his E1 which were noticeably different. He also wanted to clarify a few things with him regarding what was mentioned in his E1 response about previous assaults. 39He was not able to obtain that clarification or ask any questions he wanted to ask as Mr Murphy exercised his right not to attend the inquiry at first instance, and secondly he submitted a letter that basically said he had no further answers to any questions and wanted them given to him in writing. No other explanation was offered for not participating in the interviews. 40It was normal STA procedure to electronically record interviews, an employee was given a choice and if they did not wish for an interview to be recorded then handwritten notes of the questions and responses were made. In each case a copy of the interview would be provided, with both signing that it was correct, or if not, changes would be discussed with the person. 41Mr Baker was also referred to the customer complaint and the reference to "the driver had been speeding dangerously" and was asked whether he knew that this had occurred. Mr Baker said that Mr Murphy was speeding on the date that the incident occurred based on observation of the CCTV footage. There was a particular tab on the footage which indicates how fast a bus was going at particular times. He was led to believe that there were times when Mr Murphy was speeding. 42In cross examination Mr Baker said that he had a record of events from the CCTV footage of 20 November and there were posted speeds (in line with the timelines document) of 60 kms (Victoria Road). Mr Murphy was doing 72.6 kms at a recorded time of 3.48am; he was doing 77 kms in a 70km zone, and 64 kms in a 60k zone. So there were four occasions when it was noted on the system that he was speeding. 43He acknowledged that speeding was not brought up as part of the allegations. They were looking at what occurred at the initial altercation and then when he pushed the passenger off the bus. It only came up during the course of the investigation. 44He agreed that it was reasonable for a passenger to ask questions of drivers about different things such as their speed. He went on to say that it was not uncommon for passengers to approach a driver and ask about service delivery including speeding, driver behaviour, lowering the bus, that sort of thing. They asked questions all the time. 45Mr Baker did not consider that Mr Murphy operated the bus appropriately for the shift, as he operated early in service. 46He confirmed that all bus drivers were required to sign off at the end of their shift and that Mr Murphy signed off at the end of that particular shift at 4.20am. His actual sign off according to his Journal was around 4.28am so he signed off 8 minutes early. 47Mr Baker also confirmed that if an incident occurred a bus driver could report it when they got back to the Depot to a Duty Officer, who would then record that in a Depot Diary kept in his office and in which he'd record incidents that may have taken place on the road. Mr Baker had checked the Diary for anything around 20 November and there was no record of Mr Murphy reporting the incident. 48He also indicated that in the event of an emergency on the road while performing a shift and where a driver felt they needed assistance that there were two options available. They could contact the Radio Room directly and wait for them to respond, or they could also contact the Radio Room through the emergency button which would take an audio recording of what was a happening around the driver. So basically what was said could be heard and that would mainly be used for the purpose of knowing whether a driver felt threatened, or other passengers, or there was something happening on the bus. It was an emergency situation that needing dealing with ASAP. 49Mr Baker also indicated that Mr Murphy had been doing this particular shift for some time, definitely before 2009 and onwards. To Mr Baker's knowledge he had never expressed a desire to change the shift. 50Mr Baker said that he did not consider it strange that the female complainant found it necessary to put in her statement that she was not intoxicated as in his investigation it was his understanding that Mr Murphy alleged she was intoxicated and they obviously had a conversation about that and she was stating clearly to STA that she wasn't, and in regards to the other customer that was just their opinion. 51He acknowledged that in his years of experience, Bus Operators on night shift, more than any other shift, dealt with numerous incidents of unruly and intoxicated passengers. He did not have the facts as to whether that was also the case in relation to assaults on drivers. 52In cross examination Mr Baker was also taken to the CCTV footage and the narrative timeline. He agreed that the action of the female passenger when she raises the shoes in her right hand and 'swipes' then at Mr Murphy, could be seen as an aggressive action, or frustration. 53Mr Baker provided a commentary during the viewing of the CCTV footage largely as set out in the narrative timeline. He was also indicated where the speed of the bus was displayed. 54There were exchanges between the parties and the Board in clarification of the footage that was being shown (and re-shown). 55The Times and Events as shown in the CCTV narrative summary (Exhibit 2-11) were as follows: 3:44:54 Female passenger can be observed sitting on the off-side of the bus, opposite the rear door. 3:50:55 Female passenger presses the bus stop button. 3:51:21 Driver stops bus at bus stop. 3:51:22 Female passenger rises from her seat and proceeds to walk down the aisle towards the driver' cabin. 3:51:22 Rear doors of the bus open. 3:51:25 Front doors of the bus open. 3:51:27 Rear doors of the bus close. 3:51:27 Female passenger is walking towards the front of the bus and it is observed that she is wearing footwear of some description. also, she appears to have a bag hanging on her right shoulder and is holding another pair of shoes in her left hand. 3:51:28 Female passenger arrives at the driver's cabin and appears to engage in conversation with the driver. 3:51:32 It is observed that the driver places his left hand on top of the AFC machine. 3:51:37 During the conversation with the female passenger, the driver closes the front doors of the bus. 3:51:40. Driver re-opens the front doors of the bus. 3:51:43 -3:51:44 During the conversation with the driver, the female passenger appears to raise the shoes in her left hand and 'swipe' them at, or close to, the AFC machine. As the female passenger does this, the driver removes his hand from the AFC machine. 3:51:53 At this point in the conversation, the female passenger turns her head to the left and upwards and appears to put look towards the 'Driver Cam'. 3:51:55 The driver places his left hand on the female passenger's right arm, just above the elbow, and pushes the passenger through the front of the bus and onto the footpath. She does not fall onto the footpath but remains standing. 3:51:56-3:52:01 The driver closes front doors of the bus, turns his head away from the front of the bus, leaves the bus stop and continues with the trip. 3:51:58 The female passenger is standing outside the front door of the bus and points in the direction of the driver with her right hand as the front doors are closing. 3:52:01 Bus leaves the bus stop and continues with the trip. 3:52:02 Female passenger can be seen walking along the footpath. 56Mr Baker acknowledged that during his investigation he referred to 3 matters in response to Mr Murphy saying he had been assaulted three times over his 22 years service. He listed in "Background" an incident in 2006 and two in 2010, all of which indicated that - "Bus Operator not physically assaulted". He had located those incidents by checking Mr Murphy's personnel file along with Radio Room logs of events for the dates in question. He agreed Mr Murphy referred to his 22 years and that was why he checked his personnel file. The Radio Room logs only went back a few years because the system wasn't around then. 57He was not aware of incidents involving Mr Murphy on 4/08/1997 or 15/04/2002 and not familiar with any workers compensations claims, General Reports or Police Reports made by Mr Murphy concerning being assaulted by passengers. None of those were on his file. 58Mr Baker also explained the generic training received by Bus Operators as set out in the training documentation attached to his witness statement (Exhibit 2-4). 59Mr Baker said that Mr Murphy should have behaved by providing customer service in listening to what the lady had to say, then consulting back with her. He could obviously have taken down her details and reported the incident to management and when he got back to the Depot there was an opportunity to report it on the back of his Journal as well. 60He said he did not expect that if Mr Murphy felt threatened he would push the lady. He did not see, as Investigating Officer, that there was any reason to actually touch the lady at all. He acknowledged that Mr Murphy could tell her to get off the bus, as long as he did it politely. 61He agreed that there were two opportunities when the doors were open and she could have got off and did not use the rear door. He did not agree that by Mr Murphy closing and immediately opening the front door that could be perceived as an indication that he wanted her to listen and get off the bus. He did not see any reason why he would close the door and that would not be an appropriate way of indicating that to a passenger. 62Mr Baker acknowledged that he had not ever driven a public passenger vehicle. 63While he did not think that Mr Murphy intended to have a confrontation with the passenger (or any other passengers) he did think he showed aggression during the conversation with her and when he pushed her. If he was in such a threat why didn't he push the emergency button then everything would have been able to be heard. 64Mr Baker said that the emergency button was to get someone there to assist as soon as possible, it was not there to prevent things happening. The CCTV footage was there to give evidence of who was involved. He did not agree that at 4.00 am a driver was basically there on his own, if they pressed the button someone would come to their aid. He agreed it would not stop the actual threat from happening or going through. 65Mr Lazarou commenced with STA in 2005 and has been Ryde Depot Manager since January 2011. He has also held the position of Depot Manager in various Depots including Randwick and Waverley. 66He deposed that under STA's Human Resources Delegations he had delegated authority to implement punishments specified in clause 28 (1) of the Transport Administration (Staff) Regulation 2005. 67He deposed that he first became aware of the incident involving Mr Murphy when he was asked to authorise the downloading of CCTV images following a customer complaint that had been received on 20 November 2011. The CCTV images supported the customer complaint that Bus Operator Murphy had assaulted a female passenger on the morning of 20 November 2011. He then requested Staff Manager Darren Baker conduct a preliminary investigation into the matter. 68Mr Lazarou stated that due to the seriousness of the incident he decided to suspend Mr Murphy from duty with pay pending the outcome of a disciplinary investigation and also asked Mr Baker to commence formal disciplinary action against Mr Murphy. 69Mr Lazarou received Mr Baker's Investigation Report on or about 16 December 2011 and noted that the findings were that the charges against Mr Murphy had been found to be proven. He also viewed the CCTV footage on a number of occasions. 70Mr Lazarou stated that he reviewed Mr Baker's Report and his findings and was of the opinion that : a)The investigation process had been conducted in accordance with STA procedures; b)Mr Murphy had been afforded procedural fairness throughout the disciplinary process; and c)Considering the Report and available evidence, the findings were appropriate. 71Mr Lazarou stated that he also noted from Mr Baker's Report that Mr Murphy had declined to participate in the disciplinary interview. 72Mr Lazarou said that in determining the punishment for Mr Murphy he took into account his length of service, employment history (which he considered "poor to average") and his customer service (which he considered "poor"). He acknowledged the other punishment options that were available to him but said that the incident was serious enough to warrant dismissal. In his strong view, at no stage of the process was anything put forward that would justify the action, nor could he see any provocation and he had watched the footage a number of times. It was also an incident that occurred in front of members of the public. 73He also said that when Mr Murphy received the Notice of Punishment he said words to the effect that he was surprised or shocked because he had acted in self defence and comments were made that he (Mr Lazarou) didn't care about drivers working on nights and he was happy for them to be punching bags pretty much. 74In cross examination concerning his opinion of Mr Murphy's customer service and what he had done to bring it up to standard, Mr Lazarou said that he had only been at Ryde Depot since January 2011 and did not know what had been done prior to that but was aware Mr Murphy had done a skills maintenance course in 2009. Since Mr Lazarou had been at Ryde he had overseen the issuing of both a warning, and final warning, in relation to early running to Mr Murphy. 75Mr Lazarou also responded to the Board's query as to the consequences of early running saying it could mean a person could be waiting up to 20-30 minutes for the next bus and that could not be tolerated. It was a customer service issue. 76He went on to say that he had only referred to the 12 months since he had been at Ryde but of the 95 or so of the complaints concerning Mr Murphy half were reliability related in terms of late running, and that was just unfortunately part of the traffic situation in Sydney. The other half related to failing to stop, early running, poor customer service and customer injuries, all customer service categories. 77Mr Lazarou said that if a driver was running early then he should stop somewhere and basically wait for the time to be made up. 78Mr Lazarou acknowledged that as Reviewing Officer and Depot Manager he left the investigation entirely to Mr Baker. He was satisfied that the three notations made by Mr Baker concerning assaults were those referred to by Mr Murphy in his written response and was not aware of any other incidents in Mr Murphy's 22 year service. Evidence on behalf of the Appellant 79Mr Murphy did not file a witness statement but at the commencement of the hearing Mr Jaggers indicated on his behalf that he sought to rely on his written response to Mr Baker of 7 December 2011 which was annexed to Mr Baker's statement (Exhibit 2-15) The Board determined that his written response be formally admitted as Mr Murphy's evidence (Exhibit 4). 80STA pressed for the opportunity of cross examining Mr Murphy. In the interests of procedural fairness the Board determined that Mr Murphy should give oral evidence notwithstanding the absence of a filed written statement but with the admittance into evidence of the written response referred to above. Mr Jaggers was provided with the opportunity of asking questions of Mr Murphy in-chief. 81A number of objections to Mr Jaggers' written submissions were also made by STA on the basis not only that they were not supported by evidence and but also that they were more appropriate to be addressed by questions to Mr Murphy. Those objections were upheld and thus during the cross examination of Mr Murphy questions were directed at him based on certain of the statements contained in those written submissions. However that then allowed Mr Jaggers to make submissions on those matters based on the oral evidence. 82Mr Murphy's written response to Mr Baker confirmed that he was operating bus D501 (from Circular Quay to West Ryde Station) on 20 November 2011 when an incident occurred at approximately 3.51am. He confirmed he had viewed the CCTV footage which showed that he set down a female passenger at 3.51am at Gladesville shops and acknowledged that he had a verbal discussion with her before "I pushed her towards the front door of the bus". 83He also sought that the "reasoning" surrounding the "drastic action" that he took be considered which included the following: During his 22 years with STA he had been assaulted on 3 occasions whilst operating late shifts; On those 3 occasions he took no action to try to remove the threat from his personal space; By taking this approach it ended up with him being assaulted; He felt genuinely threatened by the passenger's demeanour, appeared to him to be intoxicated especially when she slammed her stiletto shoes on TR1; He noticed her then turn to face the CTTV and saw this as an opportunity to remove her from the bus; As confirmed by the CCTV footage he only used enough force to get her off the bus. Once she was out of the bus he closed the doors and drove away from the scene. In his 22 years service he had never raised a hand or physically assaulted a passenger in anger. 84In oral evidence Mr Murphy described what happened on the shift of 20 November as follows: A. I was driving my pass along normally. When I got to Gladesville a female passenger approached from what I thought was the rear of the bus and I thought she was going to ask me a simple question but she was really aggressive towards me and I didn't feel threatened immediately but she got aggressive and she hit the TR1 machine with her stiletto heel. That's when I became afraid actually. I was afraid that I was going to get assaulted and when she turned away from me I saw the opportunity to get out the situation so just a knee-jerk reaction I helped her off the bus. I mean in foresight I don't think I should've done it but I just did it. 85He did not think he was speeding. He opened both doors when he got to Gladesville and when she came to the front he just thought she was going to ask a question. He felt threatened when she struck the machine with her stiletto heel and thought he was going to be struck with it. He considered that he only used enough controlled force to remove the female passenger from the bus. 86He felt threatened because he had been physically assaulted in the past, actually punched in the eye and had his glasses broken, been spat on, had eggs thrown at him and had a chap try and grab the steering wheel while he was in control of the bus. 87These incidents had all been documented with STA as far as he was aware and he had seen the OH&S Coordinator about those. Some had involved workers compensation claims. He said there was not really any outcome. He filled out General Report Forms at the time. 88Mr Murphy agreed that he had been to Strawberry Hills for STA training purposes on a couple of occasions and STA had taught them how to get rid of unruly passengers and how to use self defence. He thought the last time he had done such a course was maybe 2009. 89He had been operating the night shift for about 18 years and thought his record in relation to customer service was fairly good and he had diffused quite a number of situations with aggressive and drunk customers. They were not the sort of customers you get 9 to 5. STA had offered him no additional skills to deal with such customers above and beyond any other Bus Operator that does a 9 to 5 shift. 90There was extensive cross examination of Mr Murphy. 91He stopped at the Gladesville shops to let passengers off, there were a few but he couldn't put a figure on it. He didn't know who rang the bell, was not surprised it was the female passenger, and agreed it was her intention to alight the bus as she got up from her seat. 92He said he initially wasn't under threat from the female passenger. The threat came on him when she actually struck the machine with her stiletto heel. He had "like a flashback of being assaulted before and I immediately - I felt threatened, I felt under threat." 93He said he could not say whether in the past when he had been threatened and involved in assaults, that he had pressed the emergency button on the bus. He could not remember. He accepted it was the case in the three assaults referred to by Mr Baker in his Report and that it was indicated he had pressed the emergency button. He said there were other assaults not listed there. 94He agreed he was familiar with the emergency button. He didn't press the button when the woman hit the TR1 machine with her shoes because he supposed he was in fear of his safety and didn't react properly. He should have pressed the button but just froze. 95He didn't call the Radio Room after the event and report the incident because he was intending to write to write a Report when he got back to the Depot which he did. 96He could recall what the training was when a person invaded one's personal space. He believed the female passenger invaded his personal space with the act of aggression of striking the ticket machine with the heel. It was verbal too. She was intoxicated, not in the right frame of mine and so he "expected the worst". He agreed that she wasn't invading his personal space to the extent of reaching over into the cabin area but he thought that would be the next move. He also said that she was carrying her shoes under her arm and agreed that she didn't take them off specifically to hit, but took it from under her arm. He did not notice that the CCTV showed she was wearing alternative footwear, he thought she was barefoot because she had her shoes under her arm. 97He agreed that if she was to invade his personal space the first thing he would do under his training was "block the aggression". However he did not recall the specifics of the training which concerned the action of sticking out one's hand out like a Policeman and using the words "stop". 98He thought she was intoxicated because of her speech and actions, and in his opinion she was not really steady on her feet. He could smell alcohol. 99He said she also used derogatory words to him, was abusive , swearing at him, using the "f" word and that made him feel threatened. 100In response to a question from the Board to go back to the start of the conversation he responded: A. She walked from the back of the bus and said you're a f'ing smart arse. I said, I beg your pardon, what are you talking about. She said, you're f'ing speeding you smart arsed bastard. That's the words she used. I said, excuse me, I don't know what you're talking about, and she hit the machine with the slap of her heel and I thought that was more aggressin. I said, can you get off the bus, I want to go home. She said, no I'm not getting off the bus so I just reacted and pushed her off the bus. It was a knee jerk reaction after she hit the ticket machine. 101He did not know why she wouldn't want to get off the bus. She refused to get off the bus and he didn't know why. 102Mr Murphy agreed that when the CCTV footage was viewed it showed that when he pushed the passenger out the door she wasn't in fact looking at him and was caught somewhat unawares, went sideways out the door (but he said it was on two feet) and onto her feet and retained her balance. 103Whether that was consistent with someone who was intoxicated he said depended on the level of intoxication. He could not describe her level of intoxication as he was not a doctor, she wasn't "paralytic". 104He thought it was odd that she would deny in her complaint that she was drunk. He did not agree that the reason she said that was because he had said to her "you're drunk". He felt she was drunk but did not mention it. He told her to calm down, there's no need to be aggressive. She carried on being aggressive. 105He was not prepared to agree that the second customer who made a complaint and said she was intoxicated, may have said that if he heard Mr Murphy saying that to her. He didn't know what the passenger overheard. 106He agreed it would have been reasonable for a passenger to broach the subject of speeding if he had been speeding but didn't feel he was speeding. He noticed that in the CCTV it said he was in the 50s at the time. If the woman was concerned about his speeding before that he wasn't aware that he was. There was no traffic on the road and it was empty. If he was speeding before then he put it down to the speedometer on the bus not being correct and tallying with the instruments STA had produced. 107He said that at this time there were no other complaints from customers about speeding. He did not agree that if a passenger felt he was speeding they didn't want to approach him, having already seen what happened when one passenger complained and was assaulted. 108He agreed that he neither pressed the emergency button or contacted the Radio Room after the event saying what good would it have done. It was after the event. He should have done it during the event but didn't, he just panicked. 109Mr Murphy was also referred to the second page of his Journal for that day and the Incident Types listed (assault, steal from person etc.,) and asked whether her behaviour would have fitted any of those categories as listed and he said "antisocial behaviour, alcohol related". He did not put it on this form, but put it in a General Report Form. He overlooked doing that. He was upset on the evening and just didn't know what he was doing. 110He did not agree that he did not report it to the Depot Officer. He reported it to Depot Officer (Chris Tracy) on the morning of the 20th (a Sunday) and he told him - "there's no-one here mate, you'll have to stick under the door, they'll get it Monday morning." He did not know why the Depot Officer did not write it in the Diary. He put the form under the exit door and explained that there were two doors, one for entry only and one for exit. He denied not handing it in until the 21st when a Staff Supervisor mentioned there had been a complaint about the incident. 111Mr Murphy acknowledged that if the record said he signed off at 4.20 am then that was when he signed off, agreed his Journal said he was due to sign off at 4.28 am and agreed that meant he signed off 8 minutes early and got paid for that 8 minutes. 112He also said that it took him about 5 to 10 minutes to complete the Form and he did that when he got back to the Depot and thought he did it before he signed off. He agreed that on that basis it was a reasonable conclusion to draw that if he hadn't completed the Form he would have left the Depot at 4.10 am. He did not know whether it was feasible that he was running fairly early to be back at the Depot by 4.10 am. He didn't know what the AFC machine showed. 113He thought counselling was offered by Chris Tracy but he had said it would be on the telephone, a telephone conversation. He thought he requested counselling but it would not be face to face. 114Mr Murphy was taken to his written response and he agreed that he considered he did not use excessive force. He was also taken to the training materials for the training he undertook in 2009 where it said "the force you use must be reasonable and necessary". He said he felt it necessary to use force because he felt threatened. He did not agree that it was not necessary to use force at all because she was about to alight from the bus saying that she had refused to leave and said "I'm not going". He did not think that it was a possibility that she slammed her shoe onto the TR1 machine out of frustration. 115He maintained that when he closed the doors and drove away he watched her on the pavement and made sure she had not fallen over. He was fearful for her safety. She was well clear of the doors when he closed them. She could not have fallen under the bus. He looked and saw where she was, checked the side mirror and she was a safe distance when he drove away. She retained her feet and walked away. He didn't know her level of intoxication but she seemed okay to him. If she had fallen over he wouldn't have driven off, he would have stopped. He made sure she was okay. 116He did not believe that the CCTV footage showed that he simply closed the doors and drove away and had no idea where she was. 117Mr Murphy could not remember why he requested an extension of time of one week in which to respond to Mr Baker. He did not think it was the case that it was a ploy to get an extra week's pay as he was at home on full pay. 118He did not attend the first interview with Mr Baker because he felt his statement was enough to put his case. He decided that when he got the letter about the interview. He was not aware he had not advised anyone (including Mr Baker) he was not attending and apologised if that was the case. 119He didn't participate in the second interview because he'd already written a statement, was happy with it, thought it would suffice, it covered all areas and didn't see why he should be interrogated by managers. He was not aware that Mr Baker only went back a couple of years in relation to the assaults. He thought it would be all there on computer. 120He agreed that he asked STA to make its decision on the current evidence but was not still happy with that because he was out of work and did not have a job. He did not know whether if he had answered some of the questions in the interview and clarified some of those areas there may have been a different outcome. It was put to him by the Union not to answer. They said that "they're only, they're only there to make it worse for you and not to help." He believed that then, and still believed that. 121Since his dismissal he had got a job on North Sydney Coach lines but he could no longer work because STA had reported to the Department of Motor Transport about the incident and they had taken his authority card away so he couldn't work. 122Mr Murphy was taken to the submissions of Mr Jaggers concerning 'Clause 53 Direction to leave a public passenger vehicle', as set out in the Passenger Transport Regulation 2007. He agreed with the submission that "he directed her to leave in accordance with Clause 53", saying he told her to leave and she refused to leave. 123He believed the regulation authorised him to remove her from the bus because he was in immediate danger of being struck. But he agreed that he could not point to where it said that and then agreed that it didn't authorise him to remove her from the bus. 124He was also taken to the submissions of Mr Jaggers concerning the provisions of 'Clause 59. Driver to take action in relation to dangerous conduct' of that same Regulation and agreed that he could not see anywhere in there that authorised him to remove the passenger or use physical force to remove the passenger. It was just a knee jerk reaction. 125Mr Murphy was also taken to the submission that said " Mr Murphy used enough controlled force to remove the passengers from the bus thereby ensuring his safety, the safety of the passengers and the ability to continue performing his duties". He confirmed that he did not at any stage feel that the safety of the other passengers was at risk, only his personal safety and that the statement was not correct. 126Mr Murphy said he knew the passenger wasn't injured because when he looked at her on the pavement she seemed quite ok, he didn't hit her or anything. She was walking properly and he couldn't see how she could be injured by what he did, he didn't punch her or hit her in any way so she could not have been injured. 127When it was suggested that she could have twisted her back or knee or neck he responded - "but she didn't did she?". He went on to say that If she had been injured she would have said so to the Police or hospital. He agreed that he had no way of knowing if she had reported it to the Police or to a hospital. 128Mr Murphy also indicated that he did not know what the procedural fairness test was. 129In relation to the submission that "we are not satisfied that all the alleged complaints against Mr Murphy are his fault or responsibility," he didn't know what was being referred to specifically, but said he didn't initiate the confrontation, he was simply doing his job. 130Mr Murphy maintained that it was common practice for Bus Operator that did the night shift to arrive back at the Depot early because they gave them too much time to get back to the Depot. It was all green lights and no traffic. 131Mr Murphy also outlined the procedures he followed with the bus when he got back to the Depot, either put it on the fuel bowser or in the wash. There was no one there to direct him. He also described what he did upstairs (putting the money in etc) and that all this would take about ten minutes from the time he left the bus to putting his takings in and taking the card. 132Mr Murphy also said that he preferred to use his local delegate, Mr Jaggers as he thought was competent and he felt comfortable with him. He agreed it was a large Depot (over 500 people) with quite a few people needing assistance by the Union Delegate. 133He had received advice concerning the withdrawing of his MOT about two weeks previously in a phone call from the Department of Motor Transport saying that he'd been reported for an incident that happened in November. He had made an appeal through the Union and it was under review by the Maritime Services Board and he hoped to have an outcome by the end of the week. Submissions on behalf of the Respondent 134Ms Geoghegan made oral submissions in addition to the written submissions as filed (Exhibit 1). Those submissions also referred to the relevant chronology of events as set out in the Background and Chronology above. 135STA contended that there was conclusive evidence that the Incident on 20 November 2011 did occur. The Incident was reported by two (2) passengers travelling on the bus and the evidence showed that those reports were logged with the "Your Say Line" within minutes of the Incident occurring. However the Incident was not reported by Mr Murphy at the time, but he did subsequently submit a General Report Form about the Incident. Throughout the disciplinary investigation he did not deny that he pushed the passenger from the bus. 136Further, the version of events, as reported by the two (2) passengers was supported by the CCTV images from the bus. Also Mr Murphy had not denied the incident occurred nor that he assaulted the passenger. That had been admitted in evidence. 137STA contended that the Charges issued to Mr Murphy related directly to the Incident on 20 November 2011, and that his actions during the Incident were a breach of STA's Code of Conduct. He had been issued with a copy of the Code and should have been aware of the appropriate professional standard of behaviour. 138It was submitted that the action of assaulting the passenger, by its very nature, was an unsafe act which brought with it the risk of injury to the passenger and the potential to escalate the situation to jeopardise the Mr Murphy's own safety. 139Further, the assault of the passenger was detrimental to the public image of STA and exposed STA to potential public liability claims. 140STA referred the Board to the relevant provisions of the Code of Conduct and submitted that Mr Murphy's decision to assault the passenger was unprofessional and not in the best interests of STA and therefore, was a breach of the Code concerning customer service. 141Mr Murphy had been trained in the provision of customer service and should have been aware of the level and standards of customer service he was required to provide. He had also had been trained in dealing with difficult customers and trained in strategies for ensuring personal safety when dealing with difficult customers. 142Mr Murphy's actions during the Incident on 20 November 2011 were contrary to the expected standards of customer service. Together with the assault, he demonstrated a lack of respect and consideration for the passenger travelling on the bus and therefore breached Section 4.1 of the Code. 143As a Bus Operator, Mr Murphy had been trained and instructed in the appropriate standard of customer service. His assault on the passenger on 20 November 2011 was a failure to follow those instructions and therefore was a breach of Section 4.4 (i) of the Code. 144Mr Murphy was also an experienced Bus Operator who should have been aware of his responsibility to provide appropriate customer service and act in a professional manner towards the travelling public. The act of assault was a criminal act under New South Wales legislation. 145Mr Murphy failed to perform the duties of Bus Operator efficiently and in accordance with relevant legislation and his actions were therefore a breach of Section 4.18 of the Code. 146STA submitted that Mr Murphy had an obligation to comply with STA's Code, and specifically, to follow the instructions of his employer regarding the provision of customer service to passengers. He also had an obligation not to act illegally during the course of his employment. STA submitted that the assault of the female passenger was an illegal act. 147As a Bus Operator, Mr Murphy had a responsibility to represent STA in a professional manner before the public. His actions were not consistent with government, community and the travelling public's expectations and therefore, brought STA into disrepute. 148It was submitted that Mr Murphy should have been aware of what the appropriate standard of behaviour and appropriate performance requirements were, because :- He was issued with a copy of the State Transit Employee Folder that included copies of the STA Code of Conduct; He was trained in STA's customer service requirements and standards during his initial induction as a Bus Operator; He was trained in 2001 in dealing with difficult customers, avoiding conflict and strategies for ensuring personal safety; During 2006 and 2007, he attended the Driving Skills Development Program which included components on customer service; and In December 2009, he attended the Driving Skills Development Program which included sessions on customer service and also strategies for dealing with difficult customers and personal safety situations. 149Ms Geoghegan submitted that STA did not agree with the assertion made by Mr Murphy that he felt threatened by the passenger. The CCTV footage did not did not show him displaying a defensive stance or manner in any way. He did not use the emergency button or contact the Radio Room yet acknowledged that in the past when he felt threatened he knew the procedures for requesting assistance and successfully used those. He claimed he reported the incident on his return to the Depot but that was not supported by the evidence. There was also no evidence that if Mr Murphy felt threatened he sought any trauma counselling or made use of the counselling services provided by the STA. 150It was STA's submission, based on the evidence that the threat, if any, posed by the passenger was not sufficient to justify assault by Mr Murphy. 151STA also rejected Mr Murphy's claim that the passenger was intoxicated as being inconsistent with the evidence (the customer feedback). 152The assertion that she was being unreasonable was also rejected. It was not unreasonable for a passenger to approach a Bus Operator about concerns they had on a bus such as speeding. Mr Murphy had never denied he was speeding. 153Further the CCTV footage did not support the contention that his personal space was infringed. Mr Murphy submitted that he only used enough controlled force to remove the passenger from the bus. In this instance any force was unnecessary force. The passenger was already in the process of leaving the bus, Neither Mr Murphy or the other passengers were under sufficient threat t to justify the assault shown on the CCTV footage. His reaction was also inconsistent with the training he had received. and more consistent with someone in a hurry to get back to the Depot. 154 STA submitted that, as an employer it had done all that was reasonably possible to inform and alert Mr Murphy of his responsibilities regarding the provision of customer service to STA passengers. STA, as an employer had also done all that was reasonably possible to provide Mr Murphy with the necessary skills to deal with situations involving difficult customers and personal safety. Mr Baker's evidence addressed the training he had received regarding workplace personal safety and strategies for dealing with difficult passengers and ensuring his personal safety. 155STA submitted that Mr Murphy 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 in writing. 156During the disciplinary investigation process, Mr Murphy was given an opportunity to provide an explanation for his behaviour through his written response to the allegation. 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. STA was not obliged to provide the questions and it was not sensible to do so as answers could then be tailored. Depending on an answer, more clarification was often needed. Although he declined to participate in the disciplinary interview, he was nevertheless given the opportunity to do so. He was also offered the opportunity of a support person throughout the disciplinary process and had access to the Employee Assistance Program during the disciplinary process. 157In conducting the investigation STA attempted to clarify and obtain all facts. Contact could not be made with the passengers and Mr Murphy declined two opportunities to clarify any issues he had. While it seemed it was unreasonable for STA to ask its employee Mr Murphy to attend an informal interview it was not unreasonable for Mr Murphy to expect to be able to cross examine a customer at a so-called formal hearing. The Board was asked to accept that this was a nonsense. 158The disciplinary investigation was conducted in accordance with STA's procedures. It was reasonable for STA rely on the CCTV footage, the customer complaints and Mr Murphy's correspondence. There was a review of the investigation process and a review of the findings. Finally, Mr Murphy was advised in writing of the reasons for his dismissal. 159On the issue of punishment s28 (1) of the Transport Administration (Staff) Regulation 2005 empowered STA to impose a range of punishments, including regression in grade, a fine, suspension without pay and dismissal, against a State Transit officer following disciplinary proceedings. 160STA submitted that assault in the workplace was an extremely serious breach which should attract the highest sanction. The mitigating circumstances put forward by Mr Murphy were dubious and in any case would not be sufficient to justify an assault of a member of the public. 161The Board was asked to offset the areas of mitigation put forward on by Mr Murphy as against the following : He was an experienced bus operator who should have and would have known better than to assault a passenger; He should have been aware of the standard of customer service required because he had been trained to deal with these types of situations; His behaviour on the day reflected his desire to return to the Depot, sign off early and go home; His actions exposed STA to potential public liability claims; and His actions were in breach of his contract of employment as there was an inherent responsibility to act in the best interests of his employer which he did not do. 162Further, during the disciplinary process Mr Murphy did not demonstrate any contrition for his actions and in determining the punishment of dismissal, STA considered his employment record and history. 163Finally his actions were so serious that the regulator, Roads and Maritime Services, had suspended his authority card to drive a public passenger vehicle. 164In conclusion STA submitted that Mr Murphy committed a serious breach of the Code of Conduct. Due process was followed during the investigation and that the punishment of dismissal was consistent with the offence. 165It was also submitted that it would not be in the public interest for the Board to overturn the decision to dismiss Mr Murphy from the position of Bus Operator and his appeal should be disallowed. 166STA also submitted that Mr Murphy had not filed a written statement to support his case but had filed an 'Outline of Appellant's Case' (Exhibit 5) and some of the content of that statement was either irrelevant, personal opinion of the author Mr Jaggers and/or is not supported by any written evidence and should be disregarded by the Board. The following areas of concern were detailed: paragraph 10 - the third sentence, "State Transit's inquiries consist....calculated to incriminate"; paragraph 11 - the first sentence; paragraph 13 - in its entirety; paragraph 24 - the sentence, "Unfortunately, Sydney is..... knives are common"; paragraph 26 - the last sentence; paragraph 27 - the second sentence, " "We require State Transit.....Mr Murphy's attention"; and paragraph 28 - in its entirety. Submissions on behalf of the Appellant 167Mr Jaggers made oral submissions in addition to the written submissions as filed (Exhibit 5). 168On 20 November 2011 an altercation occurred between Mr Murphy and a female passenger. The female passenger allegedly accused Mr Murphy of driving too fast and in a dangerous manner. It was submitted that it was apparent in the CCTV footage that other passengers did not have a problem with Mr Murphy's driving. Mr Murphy's representatives did not get an opportunity to ask questions of this passenger. STA did not try to ascertain any details and immediately issued Mr Murphy with a Form E1. 169STA had access to the CCTV footage of Mr Murphy's entire trip as well as the AFC information in relation to section points. The noted misconduct issued to Mr Murphy did not allege dangerous or erratic driving. It must be concluded that the passenger's allegations against Mr Murphy were very baseless and that Mr Murphy was simply the victim of an abusive, irrational and possibly armed passenger who made unfounded allegations against him. 170It was submitted that in the circumstances Mr Murphy's actions did not amount to an assault as alleged by STA. Mr Murphy directed the person to leave in accordance with clause 53 of the Passenger Transport Regulation 2007. Clause 53, 'Direction to leave a public passenger vehicle which provides, in part, as follows: 1)If in the opinion of the driver of a public passenger vehicle or an authorised officer: a)..... b)the person is otherwise causing, or is likely to cause, a nuisance or annoyance to other passengers or to the driver (whether or because the person is under the influence of alcohol or a drug, or for any other reason), or c)the person is committing an offence under this Regulation in or on a public passenger vehicle, the driver or authorised officer may direct the person to leave, or not to enter, the public passenger vehicle. 171It was submitted that Mr Murphy also acted within the provisions of Clause 59 of the Regulation and as such did not warrant dismissal from his employment. Clause 59 provides as follows: 59 Driver to take action in relation to dangerous conduct The driver of a public passenger vehicle must take such action as is appropriate (for example, contacting the operator or the policeman for help) if the driver believes on reasonable grounds that the conduct of a passenger is endangering the safety of any person. 172It was submitted that Mr Murphy took the action he considered appropriate in the circumstances. 173Mr Jaggers referred to Clause 1 of the Transport Administration (Staff) Regulation 2005 which deals with STA's disciplinary procedures. Mr Murphy responded in writing to the allegations put to him by STA and Mr Baker then requested that he attend a disciplinary interview. It was submitted that STA's enquiries consist of recorded interviews where employees were asked questions calculated to incriminate. Mr Murphy did nothing wrong requesting that questions be put to him in writing. 174Despite Mr Baker's admission that there were a number of matters which in his view needed clarification, Mr Baker refused to provide those questions in writing, instead he threatened Mr Murphy with the disciplinary action for allegedly refusing to follow a lawful direction. 175It was submitted that the definition of lawful direction did not extend to demanding an employee attend an inquiry to answer questions not provided in advance for the purpose of self incrimination. 176It was submitted that Mr Baker's investigative methods failed the procedural fairness test when he refuse to provide Mr Murphy with a list of questions about details which by Mr Baker's own admission needed clarification. 177The investigation also failed to procedural fairness test when Mr Baker proceeded to make a decision without informing himself of facts that on his own admission were not clear to him. 178In response to STA raising the issue of Mr Murphy choosing not to answer questions at an interview Mr Jaggers submitted that Mr Murphy's evidence was that he didn't feel he could offer any more information that and the Board was asked to take that into account. 179It was submitted that no weight should be placed on Mr Lazarou's statement as by his own admission his involvement was limited to directing Mr Baker to investigate the complaint and then sign off on his recommendation. 180Despite Mr Baker's admission that he had unanswered questions about details of the incident Mr Lazarou took no steps to ensure Mr Baker addressed the shortcomings of the investigation procedure before he made the decision. The board was asked to take into account Mr Murphy's evidence concerning his previous assaults which STA unfortunately did not have in their documentation. 181It was further submitted that STA procedures failed to fairness test because STA did not interview the passenger. STA should have conducted an interview and Mr Murphy should have been provided with a copy of this interview. 182Mr Murphy and his representatives did not have the opportunity to put any questions either directly or through STA which may have shed some light on this matter including: Was she intoxicated on the night in question? Why did she try to hit and threaten Mr Murphy? What exactly is Mr Murphy supposed to have done to warrant such reaction from this passenger? 183It was submitted that the answers to questions from the passenger could have provided an insight into the incident and put the events of that night into a different perspective. Mr Murphy's representatives will not have the opportunity to cross-examine the passenger. Further the Board will be asked to accept the passenger's account of events unchallenged. However the level of provocation and threat that led to Mr Murphy's reaction will never be established by these investigating methods. 184STA had put forward that the passenger was adamant that she was not under the influence of alcohol, the Board was asked to take into account the statement of the second passenger compliant that felt the passenger was intoxicated but did not agree with the Bus Operator's demeanour. That corroborated Mr Murphy's position that he felt that the passenger was under the influence. 185Mr Jaggers asked the Baord to take into account that the issue of speeding was never brought up in the E1 proceedings and if there was an allegation of speeding that should have been forthcoming at the start of those proceedings. 186It was submitted that STA's decision to dismiss Mr Murphy solely on CCTV evidence and a passenger complaint was not consistent with the procedural fairness test. 187It was also submitted that in relation to the training received by Mr Murphy STA was wrong to assert that such training prepared every driver for every eventuality and situation that arose. 188Mr Jaggers asserted that despite the efforts of police and other government agencies there are hundreds of assaults on bus drivers every year, some very serious. 189It was submitted that Mr Murphy works night shift permanently, he was entitled to be scared and nervous about the attitude and behaviour of this passenger. The fact that the passenger is a female person was not relevant. Incidents of threats to passengers and public transport employees with guns and knives are common. 190If STA believed that Mr Murphy overreacted in the circumstances then it was submitted that the punishment of dismissal was excessive. STA had employed Mr Murphy for almost 20 years. His record was reasonable, considering that he worked late at night and early mornings. These were most dangerous and difficult hours to work. 191Mr Jaggers submitted that they were not satisfied that the alleged complaints against Mr Murphy were his fault or his responsibility and STA should be required to produce those complaints to ascertain if they were indeed attributed to Mr Murphy and if they were brought to Mr Murphy's attention. 192Mr Jaggers also submitted, in relation to the suspension of Mr Murphy's authority card, that it was his evidence that this had only recently occurred and was based on information received from STA. Mr Murphy was appealing, with the assistance of the Union, to get the authority back. He also indicated in his evidence that the other company with which he obtained employment, but unfortunately couldn't work for now without his MOT, had been aware of his indiscretions with STA and were quite happy to have him on board until they were contacted by the MOT authority. 193In conclusion it was submitted that Mr Murphy was not denying STA's claims, but dismissal from his employment was harsh and unreasonable and that the Board should reinstate him to his former position with STA in accordance with section 23 of the TAB Act. He was seeking any punishment other than dismissal. Submissions in reply on behalf or the Respondent 194In reply Mr McLean pointed out to the Board that submissions made on Mr Murphy's behalf that his dismissal was harsh and unreasonable were unsupported by any evidence from Mr Murphy. 195This was also the case with the contention that the company which employed Mr Murphy knew of his misdemeanour prior to his employment with them, and with the inference that was gained was that if it was good enough for them it should be good enough for STA. 196The issue raised concerning the assaults could have been resolved some time ago if Mr Murphy had attended the interview and cooperated with the investigation. That was an area Mr Baker indicated he wanted to consult with him about. In the absence of cooperation Mr Baker had gone back 5 years and while that was not enough for Mr Murphy he could not excuse himself from not cooperating with Mr Baker in the first place to give him that information. 197The issue of speeding was not known at the time of the assault or when the E1 was issued. STA didn't necessarily raise the issue. Again, it was an area Mr Baker was willing to speak to Mr Murphy about 198It was also submitted that during the investigative process Mr Murphy had nothing further to contribute yet came to the Board wanting his job back and now wanted all those issues considered by the Board. STA made its decision based on the information it had at the time. Mr Murphy was told what would happen if he didn't participate in the interview, that STA would make a decision based on the information it had, and that was what it did. Findings 199This is an appeal under clause 32 of the Transport Administration (Staff) Regulation 2005 against STA's decision to impose on Mr Murphy the punishment of dismissal from his position of Bus Operator Level 2. 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. 200Mr Murphy in his Notice of Appeal has pleaded 'Guilty' but disputes the punishment imposed on him by STA. The Board's function in this matter is to determine whether the disciplinary punishment imposed by STA in relation to the conduct committed is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. 201The 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. 202The Board has very carefully considered all of the evidence, both oral and written, the submissions of the parties in this matter and has again viewed the CCTV footage that was shown during the hearing and tendered as part of STA's evidence. That viewing was conducted through the use of a computer and, as the Board has found on other occasions in disciplinary matters before the Board, it enables a much clearer and closer view of the images to be gained than that afforded on a large screen and at some distance in the court room. 203At the outset, the Board would once again would express extreme concern that officials of the RTBU at the central level, not just the local level of Mr Jaggers, would apparently 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 by an STA employee and Union member. 204The Board recently outlined those concerns in some detail in Jaggers v State Transit Authority [2012] NSWTAB 18 and in doing so endorsed the comments of the Investigating Officer Ms Fontana in her correspondence to Mr Jaggers. The Board re-affirms the concerns and views expressed in Jaggers v State Transit Authority and would do so in the strongest possible terms. 205The Board also rejects Mr Jaggers submissions concerning a lawful direction. As pointed out in Jaggers v State Transit Authority, the STA, and employers, have the right to issue a direction to an employee to attend a disciplinary or investigative interview. They have that right generally under the contract of employment that exists between an employer and an employee. 206In this appeal there is a very practical example of the very deleterious, and it could be said disastrous, outcome of that very, very poor, and quite incorrect advice, not to participate in an interview unless written questions were provided in advance. The Board considers this a totally unreasonable request and nothing to do with the concepts of procedural fairness. On the contrary, such a position almost creates, of itself, an unfairness in the process against an employee. 207Mr Murphy declined to participate in two opportunities to take part in a interview with the Investigating Officer Mr Baker based principally, in the Board's view, on the advice of his Union and Union Delegate Mr Jaggers, (who conducted the case on his behalf on a Agent basis rather than as an Official of the RTBU). Instead Mr Murphy relied on his original and very brief General Report and his written response to the Form E1. Indeed he seemed to think he could continue to rely on just those documents (or possibly Mr Jaggers did) in these appeal proceedings rather than putting on any evidence, including the filing of a witness statement in the ordinary way and in accordance with the standard directions issued pursuant to Practice Note 22. 208It is crystal clear that there were both inconsistencies in the accounts set out in those two documents, as well as a lack of necessary detail and specificity that would have enabled any investigating officer to properly consider and clarify all of the issues that might be of relevance and that would usually be able to be appropriately explored with an employee in such circumstances in a properly conducted interview, with a support person present and a record of interview subsequently available. 209The employer has the right to conduct an investigation into incidents/issues of concern in the work place, particularly where members of the public, customers etc, are concerned and where serious issues are raised by a particular incident, and to expect, and indeed require, relevant employees to participate in such a process. 210The issue of the necessity of obtaining clarification of certain details of Mr Murphy's accounts was particularly the case in relation to the previous three assaults he referred to as being the underlying cause of his concern, and prompting his reaction in the incident which took place on 20 November 2011. 211That same issue would also have had particular relevance to any consideration of mitigation when determining the appropriate punishment, given that Mr Murphy had acknowledged that he had pushed the female passenger off the bus. It was an opportunity missed by Mr Murphy. STA could only then consider the matter based on what documents they did have available from Mr Murphy but without any necessary clarification and absence of crucial details. 212As to inconsistencies between those two accounts the Board notes that Mr Murphy in his General Report Form wrote - " she then went to strike me with her stiletto shoe I put my arm out to defend myself and she went of (sic) the bus". He then gave a somewhat different account in his written response where he said - " On this day I genuinely felt threatened by the female passenger's demeanour (she appeared to be intoxicated to me) especially when she slammed her stiletto shoes on TR1. I then noticed the female passenger turn to the front of the bus and look at the CCTV. It was at this moment I saw an opportunity to remove the female passenger from the bus. As confirmed in the CCTV footage I used only enough force to get her off the bus......" . 213The difference in those accounts, when compared to both the two customer complaints, as well as the CCTV footage, would have raised issues for any investigating officer to need to clarify/query through appropriate questions in an interview process. 214The Board has viewed the CCTV footage and rejects totally any assertion by Mr Murphy that he only used enough force to remove the passenger from the bus, or that his action was a defensive one. He should never have touched the female passenger in any way. What he did was forcefully push her out of the bus in a quite breathtakingly outrageous way. It constituted an assault on the female passenger. 215What makes Mr Murphy's actions even worse is that because the female passenger was looking up the CCTV camera at the front of the bus rather than Mr Murphy, she was totally unaware that he was about to push her off the bus and quite unprepared for that action. Mr Murphy and STA are most fortunate that she was able to retain her balance when she reached the footpath (but not without some flailing of her arms and correction to keep herself upright) and did not fall over and sustain an injury with all the consequences (both medical and legal) that would have then flowed. What would have happened if she had not quite obviously been a young woman and wearing flat footwear just does not bear contemplating. 216After viewing the CCTV footage the Board can find no obvious signs that the female passenger was intoxicated in any way. 217The CCTV footage shows that prior to pressing the stop button she is shown sitting normally at her seat, right forearm resting on the window frame and with her head resting against her arm/window. She is quite still and motionless, but awake, as at one stage she runs her left hand across her head and through her hair several times. She does not appear agitated in any way, and when she stands up she walks smoothly and normally towards the front of the bus. Contrary to Mr Murphy's oral evidence she was the only passenger who moved to alight from the bus at the Gladesville shops bus stop. 218She does not appear to approach Mr Murphy aggressively but stands facing him and speaks to him, in a normal manner, her right arm is down by her side. The right arm is free and at no stage does she make any threatening gesture with that free arm or gesticulate towards Mr Murphy. She does not lean forward towards him in any threatening or aggressive way. She does at one point in the conversation raise her right hand and motions in a circular type of direction but not at Mr Murphy. She does not appear to be angry or have any unpleasant facial expression or grimacing. Mr Murphy does appear to respond curtly or in such a way as to provoke her and she does move and lift her left hand holding the shoes (but does not change the nature of the hold she has on the shoes) and bang/hit the TR1. Mr Murphy previously had his hand resting on the TR1 and removes it just before she strikes. It is not possible to determine whether she was trying to hit him or just the machine. By this stage she does in fact look angry when she turns to look directly to face the front camera and says something to the camera. She had not made any attempt to otherwise hit or move towards Mr Murphy. Indeed, after he removed his hand and she hits the machine he placed his left forearm back on the tray. 219In doing this Mr Murphy did not act like a person who felt threatened, he did not move away in any defensive pose (apart from taking his hand off the machine).He then, when she was not looking and quite unprepared, quite forcefully just pushes her off the bus. He then takes immediate action to depart the bus stop. 220The CCTV footage shows quite clearly that he did not look in her direction in any way after this and certainly could not have ascertained that she was in no difficulties as a result of his actions. He did not look in the mirror at this stage and if he did so it was not until he was well away from the kerb and driving along the road. It is not noticeable on the CCTV. However it is clearly evident that immediately after he pushes her off the bus, closes the door and pulls out from the kerb, he looks to the right in the direction of any oncoming traffic as he moves back onto the road. This shows a total disregard for the welfare of the female passenger. 221If the female passenger was being difficult (when she raised the issue of his speed) then Mr Murphy completely forgot the training he had received in how to deal with difficult customers, particularly the three "A" model for dealing with customer complaints namely, Acknowledge, Apologise, Act, as set out in the training materials attached to Mr Baker's statement. The female customer obviously was not happy with the response she got from Mr Murphy and if he had dealt with it according to the training he received in 2009 then the matter may not have escalated as it did. 222However that the exchange between them did escalate did not excuse Mr Murphy's actions or provide any justification for his action in pushing her off the bus as he did. 223The fact that the CCTV footage also confirms that he was speeding at some points on the trip merely serves as corroboration for the fact that there was speeding and confirms that aspect of the complaint she made to the 'Your Say Line", that this was the issue she was raising with him when she stopped to speak with him before alighting from the bus. 224On the issue of arriving back at the Depot early there is confirmation of the time Mr Murphy arrived at the Depot. The CCTV footage of the Rear Door Camera when played in its entirety shows that the bus enters the Ryde Depot at approximately 4:07 and comes to a stop. Mr Murphy completes his walk through, removes his cash tray and exits the bus at approximately 4.08am. 225The provisions of the Passenger Transport Regulation 2007 relied on by Mr Jaggers on behalf of Mr Murphy does not give a Bus Operator any right, or authority, to remove a passenger from a public passenger vehicle. He was quite wrong in that submission. Mr Murphy also acknowledged that when he was taken to the actual wording in cross examination. The Board hopes that Mr Murphy had not been mislead into believing that what he did was somehow authorised or permitted by that Regulation. 226The Board also considers and finds that STA afforded due procedural fairness to Mr Murphy during the investigative process. A process he chose not to participate in, contrary to his interests. 227The Board also notes that while Mr Lazarou was in receipt of Mr Baker's Investigation Report and findings on 16 December 2011 he did not immediately act to impose the punishment he had determined was appropriate in all the circumstances and did not do so until after Christmas and on the 29 December 2011. 228The Board has carefully considered the evidence and submissions of the parties and in particular the CCTV footage and finds that the assault on the female passenger was very serious, unjustified and warranted the punishment of dismissal. 229Mr Murphy was a long serving employee of STA. However with lengthy service and experience comes a greater expectation that an employee will be fully aware of the standards of conduct and behaviour that is expected, particularly in relation to customer service, and comply with such standards of conduct and behaviour. 230Mr Murphy should have taken the opportunities he was given by STA to explain/put forward in detail any other mitigation/circumstance upon which he sought to rely, such as his previous assaults. However it should be said that it is hard to see how the action he took in pushing the passenger off the bus in the way in which he did could possibly have had any other alternate punishment imposed, given the seriousness of his actions. However there may have been the possibility of exploring alternatives such as being allowed to resign (a standard and sometimes reasonable alternative across the public sector) rather than being dismissed. 231Mr Murphy had already received a Warning and a Final Warning in the previous twelve months for early running. Both were in writing and both in evidence before the Board. The Board has taken these into account in its consideration of the appropriate punishment to be imposed on Mr Murphy. 232However the Board is not prepared to accept evidence concerning other, earlier customer complaints without firm evidence that those complaints had been raised at the time with Mr Murphy and he was given an opportunity to provide any explanation or answer to such a complaint. There was no evidence of such before the Board. Where a Bus Operator is spoken to informally about a complaint the Board would expect some notation to be made somewhere, and certainly if anything in writing was issued then a copy retained (as should any General Report written about such a complaint) if it is to be subsequently relied upon in disciplinary proceedings. It is evident that there is the facility to add comments to a complaint that is received and logged, given the entries that appear under the two customer complaints that were made on the 20 November (the references to Mr Lazarou). There surely ought to be some ability to allow for such notations as 'driver spoken to', 'explanation accepted/not accepted'; as well as any follow up action; such as informal counselling/warning issued/no action necessary. It goes without saying that any such records with notations should be on an employee's personnel file. 233The Board has carefully considered all of the evidence (including the CCTV footage), and the submissions of the parties and finds that the assault that Mr Murphy committed on the female passenger on 20 November 2011 was of such seriousness that the punishment of dismissal by STA was fully warranted. 234On that basis the Board does not intend to intervene in the decision taken by the State Transit Authority and the appeal is disallowed. Order(s) 235The appeal is disallowed. Elizabeth Bishop Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2012