Dewi El Khoury and State Transit Authority Division of the New South Wales Government Service [2012] NSWTAB 28

Transport Appeal Boards New South Wales Medium Neutral Citation: Dewi El Khoury and State Transit Authority Division of the New South Wales Government Service [2012] NSWTAB 28 Hearing dates: 21 August 2012 Decision date: 31 August 2012 Before: Tabbaa, C AM (Board) Decision: Appeal allowed Catchwords: Appeal against dismissal; Alleged breach of State Transit Authority Code of Conduct and Bus Operations Handbook; Use of mobile telephone while operating bus; Respondent not remiss in providing training; Mitigating circumstances; Appeal allowed; Appellant returned to work prospectively with no payment for lost entitlements. Legislation Cited: Industrial Relations Act 1996 (NSW) Occupational Health and Safety Act 2000 Australian Road Rules Passenger Transport Regulation 2007 Cases Cited: TAB 103/05 M Atkins V STA; TAB 126/05 G Olgac V STA; TAB 124/06 R Castle v STA; TAB 496/06 R Novoselov v STA; TAB 581/07 H Ghani v STA; TAB 1182/07 E Kelly v STA; TAB 753/08 C Hazelwood v STA; TAB 184/09 R Allen v STA Category: Principal judgment Parties: Mr S McLean (State Transit Authority) Representation: Mr N C Kalpage (Appellant) File Number(s): TAB 225 of 2012

DECISION

Introduction 1This is a decision in an appeal against the decision of the State Transit Authority Division of the New South Wales Government Service to dismiss Ms Dewi El Khoury from the position of Bus Operator. 2Ms El Khoury commenced employment with the State Transit Authority (STA) on 9 November 2004 as a full-time Bus Operator at Port Botany Depot and transferred to Randwick Depot on 6 November 2005. 3The Appellant was dismissed from employment on 15 May 2012 for alleged breach of: * The State Transit Code of Conduct; and * The State Transit Bus Operations Handbook. 4The alleged breaches relate to an incident that occurred on 16 April 2012 while she was rostered to work the 3.46 pm to 12.12 am shift (no. D029) as a Bus Operator. 5At approximately 12.14 am on 17 April 2012, a telephone complaint was received from a member of the public through the "131500 Your Say Line". 6The Complainant said that at approximately 9.51 am on 16 April 2012, he boarded a bus operating the Route 372 from Carr Street, Coogee to the City. He claimed that when the bus reached the corner of Cleveland and Elizabeth Streets, Strawberry Hills, the bus driver started talking on a mobile telephone while stationary at a red traffic light. 7The STA's maintenance records showed that the said bus indeed had an Air Leak and that fault was rectified on 17 April 2012. 8Initial investigations by the STA revealed that the driver in question was the Appellant. 9Ms Shelley de Courcy Lys, Depot Manager at Randwick, retrieved the CCTV images from Bus MO 1916 and viewed them. She observed the Appellant using a mobile telephone while operating the bus. 10Ms de Courcy Lys met with the Appellant on 18 April 2012. The Appellant was advised of the complaint that had been received the previous day and shown the CCTV images. The Appellant admitted that she had used her mobile telephone and provided an explanation for her actions. 11The Appellant was issued with a Form E1 detailing the allegation against her and was suspended from duty, with pay, pending the outcome of the Respondent's disciplinary investigations. 12A written response to the allegation was provided by the Applicant on 26 April 2012. 13At an interview with the Investigating Officer, Mr Steve Merrill, on 1 May 2012, the Appellant was provided with an opportunity to clarify some issues and further respond to the charges. The Appellant, once again, conceded that she used a mobile telephone while operating the bus and advised that she believed that she had followed the Respondent's Mobile Telephone Policy in that she had secured the bus before doing so. 14The Investigating Officer found that the charge was proven. 15The Depot Manager, Randwick, reviewed the Investigation Officer's report and findings and approved the punishment of dismissal. 16The Appellant was issued with a Notice of Punishment and dismissed from employment on 15 May 2012.