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. The Charge 17The charge contained in the correspondence to the Appellant dated 18 April 2012 is as follows: (1)On 16 April 2012, you were rostered to perform Shift D029, commencing at 15.46 pm. (2)Whilst driving bus MO 1916, operating a route 372 service at approximately 22.13 pm, when stationary at the traffic lights in the right hand turning lane at Cleveland Street, prior to turning into Chalmers Street, you left the drivers cabin and used a mobile telephone. 18The Respondent contended that, by her own admission, Ms El Khoury breached the STA Code of Conduct and the Bus Operations Handbook. STA Code of Conduct 19The rules in the STA Code of Conduct that pertain to the allegations are set out below: 4.3 - Accountability All employees must understand their duties and responsibilities and ensure they perform their duties and carry out their responsibilities to the required competency level of their positions. 4.4 - Appropriate Behaviour - Professional Conduct In the interest of health and safety, efficiency, harmony in the workplace and the public image of State Transit, all employees must maintain an appropriate professional standard of behaviour. This means that you must:: A -be honest and diligent in your work; D -when using State Transit's resources ensure they are utilised efficiently, effectively and lawfully; I -make sure you comply with all State Transit policies, agreements and reasonable and lawful instructions. O -not use hand-held mobile phones (including an earpiece) or two-way radios while on duty and driving any State Transit vehicles except where the vehicle is parked safely. [emphasis added] 4.13 Occupational Health and Safety State Transit has a responsibility for the health and safety of employees and customers. All State Transit managers and supervisors shall take every reasonable opportunity to reduce employees' exposure to occupational risks, in accordance with the Occupational Health and Safety Act 2000. All employees shall take care of their own health and safety and the health and safety of others. While at work, you shall follow the safe working guidelines appropriate to your position, wear any protective clothing issued to you, and report to your supervisor any faulty equipment or other hazards in the workplace. 4.18 Compliance As a State Transit employee, you are required to perform all the duties of your position promptly and efficiently, in accordance with relevant legislation and regulations, relevant awards and agreements, State Transit policies and lawful and reasonable instructions from your supervisor or manager. ..... Breaches of the Code of Conduct are likely to result in counselling and/or disciplinary action, and in serious cases they may warrant dismissal. You should be aware of the Guidelines for Managing Conduct and Performance procedures. 20The rules in the STA Bus Operators Handbook that pertain to the allegations are set out below: 4.3.12 Audio and Communication Equipment in Buses 4.3.12.4 Bus Operators must not use mobile phones (including 'hands free') or scanners when driving, whether with passengers or not and are only permitted to use a handheld mobile phone when not in-service, stationary, engine off and park brake applied. 4.6.6 Local Instructions 4.6.6.1 Employees must observe any driving instructions or directions displayed on notices at the depot or otherwise issued by the Regional General Manager, Depot or Duty Manager or supervisor at the depot. TRAINING 21Ms Shelley de Courcy Lys, Depot Manager at Randwick, gave evidence, which was not refuted, that on commencement of employment on 9 November 2004, the Appellant was provided with an Employee Folder that contained a copy of the Respondent's Code of Conduct and a copy of the Bus Operations Handbook. 22The Employee Folder was re-issued to all employees in 2008. 23A training course was developed by the STA on its Mobile Phone Policy in mid 2005. Organisation wide information sessions were conducted for staff to launch that policy. Participants were handed a copy of the presentation script together with information handouts. The script used in the "Mobile Phone usage for Bus Operators Course" on 24 May 2005 was tendered in the proceedings. It stated in part: In a nutshell, the STA policy is that no STA employee is allowed to use a hand held mobile phone, with or without an earpiece, while driving a STA vehicle. Using a hand held mobile means using it to have a phone conversation, sending or receiving SMS text messages or emails, taking photos, listening to music, radio or playing games. You must not do any of these things while you are driving the vehicle whether it is moving in traffic or not. 24The Personnel records indicate that the Appellant completed the following training courses which included re-inforcement of the mobile telephone policy: 24 May 2005Mobile Phone Usage for Bus Operators 19 September 2008 Bus Operator, Skills Maintenance Program 2 September 2010 Bus Operator, Skills Maintenance Program 25In addition to training sessions, the Respondent has continually re-enforced the mobile phone policy through the issuing of staff newsletters, posters displayed in the workplace and safety alerts attached to Bus Operators Work Journals. The Respondent's records indicate that all employees, including the Appellant, received the following notices in relation to mobile phone policy/procedures and work instructions: April 2005Articles in Transit Times Issue dated 1 April 2005 August 2005Articles in Transit Times Issue dated 1 August 2005 September 2006 Articles in Transit Times Issue dated September 2006 September 2006 Safety Alert regarding mobile phone use while driving was displayed in the workplace and has been displayed since as recently as January 2012 at Randwick Depot. CHATS and Posters in the Workplace Set out in Code of Conduct Set out in Bus Operations Handbook The Respondent's Evidence 26Ms Shelley de Courcy Lys gave evidence that she first became aware of the breach when she was informed by Staff Supervisor, Luke Holdsworth, that a complaint had been received from a passenger that a Bus Operator had used a mobile phone when driving a bus on the evening of 17 April 2012. 27Having identified the Bus Operator concerned, Ms de Courcy Lys said she retrieved the CCTV images from that bus. 28Ms de Courcy Lys said she advised the Appellant, in the presence of her union delegate and the Staff Supervisor, of the nature of the complaint and informed her that she had viewed the CCTV images. Despite her advice to the contrary, Ms El Khoury explained the circumstances in which she had used her mobile telephone insisting that she had not done anything wrong. At the conclusion of that meeting on 18 April 2012, the Appellant was issued with Form E1 setting out the allegation against her and suspended from duty with pay pending the outcome of an investigation. The Appellant and her Union delegate were provided with an opportunity to view the CCTV images. 29On 24 April 2012, Ms de Courcy Lys made arrangements for Mr Steve Merrill to conduct the investigation. She received his report on 8 May 2012. The report found the charge proven. She said she reviewed it to ensure that the investigation process had been conducted in accordance with the Respondent's procedures, Ms El Khoury had been afforded procedural fairness throughout the disciplinary process and the findings of the report were appropriate in view of the report and available evidence. 30Ms de Courcy Lys determined that dismissal was appropriate in the circumstances and issued Ms El Khoury, on 15 May 2012, with the Notice of Punishment. 31Stephen Merrill, Regional Business Manager with the STA, submitted a written statement in which he stated that since 2000, he has been routinely involved in applying the STA's Disciplinary Procedures in the management and supervision of Bus Operators. 32Mr Merrill stated at, at the request of the Acting Regional General Manager, Jim Naihos, made on 24 April 2012, he undertook a disciplinary investigation into the use of a mobile telephone by Ms El Khoury. 33He obtained the relevant documentation and the CCTV images of the incident from Ms Shelley de Courcy Lys, the Randwick Depot Manager, on 26 April 2012 and, in the period to 8 May 2012, carried out his investigation which included interviewing staff, collating information and researching STA records. 34Mr Merrill stated that he summarised his findings and submitted an Investigation Report to Ms de Courcy Lys. 35Ms Talita Brooks, engaged as Bus Operator Trainer Level 3 at Randwick Depot in the period January 2006 until March 2008, provided a statement in the proceedings. Her oral evidence in the proceedings confirmed the contents of her written statement. 36Ms Brooks said she had no specific recollection of advising Ms El Khoury that she could use a mobile telephone if she "secured the bus and got out of the seat". Nevertheless, she stated that it was not uncommon for her to offer advice to trainees about the application of the STA mobile phone policy "in the sense that if they use a mobile phone at a terminus or when they have pulled to the side of the road and secured the bus to then leave the seat of the bus to ensure there is no confusion about them being in control of a bus". 37Ms Brooks said she had viewed the CCTV images and emphasised that her advice would not apply to the situation in question. She stated that the CCTV images clearly indicated that the bus had not been "secured" in the sense that it was not, as emphasised in the training, safely parked at the side of the road, park brake applied, in neutral and engine switched off. 38Ms Brooks stressed that, as an experienced Bus Operator, Ms El Khoury should have been aware that "securing" a bus meant it would need to be safely parked at the side of the road, park brake applied, in neutral and engine switched off, as it re-inforced through regular training, including the Skills Maintenance Training Program. The Appellant's Evidence 39Ms Dewi El Khoury gave evidence that she picked up the bus at approximately 10.01 pm at the corner of Cowpar and Mulwarre Streets. As she was driving the bus, she noticed the air pressure gauge was reading low. She tapped the gauges repeatedly and tapped the brake pedal but the gauge was still reading low. She said she felt serious concern about the brakes locking if she lost air pressure or if she switched off the ignition. She felt panic as she imagined the bus getting stuck in traffic and, worse still, her passengers not being able to reach Central Station in sufficient time to catch connecting trains. 40Ms El Khoury said she was stopped at red traffic lights in the right hand lane at the corner of Cleveland and Chalmers Streets. She placed the bus in neutral and engaged the handbrake. As she was concerned about the bus breaking down, she decided that the best course would be to ring the Corridor Supervisor, Mr Bushara Giddies, and ask him to meet her at the terminus at Railway Square to check the bus. She elected to use her mobile phone rather than the radio as she thought that contacting him direct would save time and would thus be less likely to inconvenience passengers. 41Mr Giddies informed her that he had another job to attend. Ms El Khoury said the call was very short in duration. She then continued to the terminus where she used the radio to seek assistance. She did not receive any response. She used her mobile phone once again to call the duty officer, David Penridge, who organised a changeover at the corner of Cowpar and Mulwarre Streets at 10.45 pm. She used another bus to complete her shift. 42The written response provided by the Appellant to the STA in response to the charge contained the following relevant extracts: "... I believe I did not do anything wrong on 16 April 2012 approximately after 22.00 PM when I stopped, secured my bus and off the seat to make a quick phone call to truck 35 due to losing air pressure while arrow traffic light was red in the intersection between Cleveland Street and Elizabeth Street. I wasn't driving when I made a phone call and I always stopped at the top of the bus zone". "I picked up the bus from relief point, approximately 22.00 PM. I didn't think the bus was defective because the driver didn't say anything about the bus, ....I didn't realise that the bus was loosing air pressure until I was at section 2 inbound (Cleveland Street and Crown Street) because the air pressure gauge's needles were very low. As far as I am aware that the bus needs air pressure to move and it will lock the break (sic) if there is no air pressure. I was panic and scared that I might have a problem such as accident or block the traffic due to no air pressure on the bus on the way to Railway Square because the street is only one lane after PM peak hours but I managed to stay calm while I concerned myself. So, I made a quick call to truck 35, Bushara Giddies was on duty that night, to meet me at Railway Square to check the bus because I still had two trips to go to finish my shift. Truck 35 couldn't come due to attend a job in that time." "When I arrived at Railway Square terminus, I called radio room and the sign was "send placed". While I was waiting for answer, I tried to open/close the door and the air pressure gauges' needles on my bus were still on very low. Approximately 5 minutes before I due out, I called Duty Officer, David Pendrich, and explained the situation...." "I believe that I have adhered to State Transit mobile phone policy as I understood it by securing the bus and leaving the cabin before placing the call. I secured the bus and I was off the seat to make a quick work related call that I thought at the time was for a valid reason". "I believe my actions did not jeopardise anyone's safety. I didn't want anything bad happen, either for my passengers or myself"... 43Ms El Khoury attended an interview with Mr Merrill on 1 May 2012 during which she provided the following relevant responses: Appellant:What I am understanding about the policy of mobile phones is...Secure the bus and off the seat, that what I was understanding. When I join State Transit....There is no mobile phone policy, a year after that there is a mobile phone policy. There is one, I know from here a driver from Port Botany got sacked for mobile phone so since then I am aware that mobile phone is a big no no. That is very strict and my job I won't risk that so secure the bus and out of the seat that's what I'm aware. ..... And then I find out until after I get an E1 and then we went to Union Office and Nick May gave me a copy of the new policy now I'm sorry if I'm not aware, fully aware of the policy that I have to like part to the kerb and put the engine off.... I don't need to use the mobile phone while I'm driving. ..... I remember when we were training Talita Brooks was the BOT3 at Randwick and then we went to go for a drive, she was teaching everybody.... I don't know what course is that and someone was expecting a phone call and he asked her I need to take this and she said secure the bus and off the seat and I ask her what about at the terminus is that OK and she said secure the bus and its better off the seat so you don't have to explain it to them if someone complain it not true that you were on the phone in the driver seat. ....That's what I believe, the policy is secure the bus and off the seat. Merrill:I just wanted to ask are you aware now or have your thoughts on the policy or procedure changed at all? Appellant:Yes of course. Q:What do you believe the policy to be now? A:That I have to secure the bus, turn the engine off and then I'll make a phone call if the radio doesn't work, but if its really really emergency...I'm never ever going to use the mobile phone. 44The Appellant provided a written statement to the Board in which she confirmed that she was aware of the mobile phone policy introduced in mid 2005. While she had no specific recollection of attending the awareness session on 24 May 2005, she did not dispute that she probably did. 45Ms El Khoury stated that she has never seen the Transit Times articles tendered on behalf of the Respondent nor she did recall ever seeing the Safety Alerts put out by the Respondent in relation to the use of mobile telephones. 46Both in her written statement and oral evidence, the Appellant insisted that she had used the mobile telephone in the mistaken belief that she had done it properly in that she had secured the bus but could not turn off the ignition as the bus may have lost air pressure causing the brakes to lock. 47She insisted that she used her mobile phone because she believed that she had a genuine emergency, "I exercised judgment in an attempt not to inconvenience passengers and in what I believed to be in the best interest of the Authority." Submissions 48The Respondent pointed out that it is an implied term of the contract of employment that an employee will obey a lawful and reasonable direction of the employer. Failure to do so may constitute a repudiation of the contract of employment and may lead to dismissal. 49In determining whether the Appellant's failure to carry out a lawful and reasonable direction of the Respondent in relation to its mobile telephone policy, it is necessary to have regard to all of the circumstances, including the nature and degree of the Appellant's conduct. 50It was submitted by the Respondent that, in assessing the Appellant's actions on the shift in question, consideration needs to be given to whether she was acting reasonably, in other words, with full knowledge of the circumstances. 51The Respondent took the Board through all of the training provided to the Appellant in relation to the use of mobile telephones. 52The Respondent reminded the Commission that the Appellant's actions were in breach of the Australian Road Rules. 53In addition, the Appellant's actions were in breach of Clause 97 of the Passenger Transport Regulation 2007 which relevantly states: The driver of a bus must not, without reasonable excuse, leave the driving seat of the bus. 54The Respondent submitted that the Appellant's actions were a serious safety breach, in view of the fact that she was operating a bus in the Sydney CBD that was 12.5 metres in length with an unladen weight of approximately 18 tonne and had passengers on board. 55In conclusion, the Respondent submitted that the decision to dismiss the Appellant was appropriate in view of the training provided, having regard to public safety, and previous decisions of the Board in which six out of the six dismissals appealed were dismissed. 56It was submitted on behalf of the Appellant that it is not a perfect world in which we live and there were extenuating circumstances that prompted the Appellant to take the action that she did. 57It was not disputed that the Appellant used her mobile telephone to call for assistance from her employer. It was not disputed that she had not used her mobile telephone for any private calls. 58It was argued that the Appellant's prime consideration at the time was not to inconvenience either the Respondent or the passengers. 59It was pointed out that the Appellant never sought to deny her actions. She was aware she was being video-taped and had nothing to hide as she was working in the best interest of her employer. 60The Appellant has provided strict undertakings that she would never, ever use her mobile telephone in future while operating a bus. The Findings 61The Appellant admitted the charge from the first time that it was put to her. 62The Board accepts that the Respondent was not remiss in providing all training necessary in relation to the use of Mobile Telephones and kept reinforcing its policy on a very regular basis through various means. The Board accepts that the Respondent has done all that is reasonably required to alert its employees of the prohibition on the use of mobile phones and the consequences of breaching that prohibition. 63The Appellant, as well as all road users generally, would be aware that using a mobile telephone while driving on New South Wales roads is contrary to Rule 300 (1) of the Australian Road Rules which relevantly reads: The driver of a motor vehicle must not use a mobile phone while the vehicle is moving or is stationary, but not parked. 64The Board does not doubt the evidence of the Appellant in regard to the fact that she has no recollection of the training. Nevertheless, her failure to pay heed to the training she received and her failure to heed the warnings contained in the staff notices, safety alerts and articles in the staff newsletter is evidence of her lack of attention and should not reflect on the Respondent's training of staff. 65The Respondent took the Board to relevant extracts from the training provided to the Appellant. Training was conducted in mid 2005 on the Mobile Telephone Policy, a transcript of which was provided to all participants, including the Appellant. The Transcript contained in part the following instruction: It is permissible for a bus operator to use a mobile phone when they have arrived and parked safely at a terminus and when for operational reasons it is necessary to contact the radio room. In these cases the bus must be parked safety and secured. An example would be when the bus radio is in a "black spot" and radio transmission is not available.... It is not permitted to use a hand held mobile phone if the vehicle is still in traffic but stationary, for example, stopped at a red traffic light. 66That is precisely what the Appellant did, she used her mobile telephone while the bus was stationary at a red traffic light. 67The Board accepts, having viewed the safety alerts, notices, newsletters and training transcript that the Appellant should have been aware of the prohibition on the use of mobile phones while operating a bus, including when that prohibition applied. 68It has not been explained to the Board why the Appellant did not simply negotiate the bend and make the call while she was stopped at the bus stop immediately after the bend, albeit she could not have turned off the engine at that stop otherwise the brakes may have locked. 69It is therefore appropriate that disciplinary action be taken against the Appellant. 70The Board notes, however, the following mitigating factors: Firstly, it is noted that the Appellant had slight language difficulties and it is possible that she misinterpreted Ms Brooks' response to a fellow trainee in relation to the use of mobile phones. Secondly, the Appellant did not use the mobile telephone for her private use. The calls were made to the Respondent for assistance. Thirdly, while her actions should not be read as condoned, it is noted that the bus was stopped at lights and the handbrake was engaged - in other words, the bus was not in motion. Fourthly, there is no dispute that the bus was indeed faulty and needed to be repaired. Fifthly, the Appellant pleaded guilty immediately the charge was put to her and has given strong undertakings that she will never use her mobile telephone while operating a bus. Sixthly, there is no evidence before the Board of any prior disciplinary action taken against the Appellant by the Respondent. 71On the basis of those mitigating factors, it is appropriate that the Appellant be given a second chance by the Respondent and an alternative disciplinary measure be imposed. ORDER 72The appeal of Ms Dewi El Khoury against the disciplinary action of dismissal by State Transit Authority is allowed. 73Ms Dewi El Khoury is reinstated to her former position effective from 10 September 2012. 74No order is made as to lost entitlements. I Tabbaa AM 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: 07 September 2012