Robert William Darcy and State Transit Authority Division of the NSW Government Service [2012] NSWTAB 29

Transport Appeal Boards New South Wales Medium Neutral Citation: Robert William Darcy and State Transit Authority Division of the NSW Government Service [2012] NSWTAB 29 Hearing dates: 13 July 2012 Decision date: 04 September 2012 Before: Tabbaa, C AM (Board) Decision: Appeal dismissed. Dismissal upheld. Catchwords: Appeal against dismissal; Alleged breach of Code of Conduct; Alleged breach of employee car park rules; Refusal to obey Manager's instruction not to take matters into his own hands; Used his car to push another employee's car out of his way despite it being in park; Damage caused to fellow employee's vehicle; Failure to stop and talk to the other employee upon her arrival in the car park; Intention to leave, and did leave, the other vehicle outside the parking spaces available for safe parking of sites; Failure to acknowledge that his actions were wrong. Legislation Cited: Transport Administration (Staff) Regulation 2005 Cases Cited: Stevenson v Mid Western Regional Council [2009] NSWIRComm 1086; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; (Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70) as cited in Starr Commissioner of Police [2001] NSWIRComm 226 (5 October 2001) 154; Lawrence v Coal and Allied Mining Services Pty Limited [2010] FWAFB 10089; Parker v Capital Painters Pty Limited (1999) 68 IR 100 at 104) Category: Principal judgment Parties: Mr G. Hanson (State Transit Authority) Mr T Costa (Australian Rail, Tram and Bus Industry Union, NSW Branch) File Number(s): TAB 193 of 2012

DECISION 1This is a decision in an appeal pursuant to clause 32 of the Transport Administration (Staff) Regulation 2005 against the decision of State Transit Authority Division of the NSW Government Service (the STA) to dismiss Mr Robert William Darcy from the position of Bus Operator. 2Mr Darcy commenced employment with the STA on 16 June 1990 as a Trainee Bus Operator at Brookvale Depot. 3At approximately 7.30 am on 4 April 2012, the Appellant parked his personal vehicle, a blue Jeep Wrangler, in the first of a double bay parking space in Brookvale Depot Staff Car Park. 4At approximately 7.40 am, another employee of the STA, Ms Yael Bornstein, Acting Regional Fleet Coordinator, parked her personal vehicle, a pink Daihatsu Sirion, directly behind the Appellant in the second of that double bay parking space. 5The staff car park is set out in such a manner as to allow for "double parking". In other words, the parking of vehicles in such a manner as to restrict or prevent the exit of the car in the internal space if there is a car parked behind it in the external space. 6The common practice that has developed amongst users of the staff car park is that the person who parks in the internal space leaves a note on their vehicle indicating what time they expect to exit the car park. The person who parks in the external space then determines whether or not it is appropriate to park in the external space given their exit time. Sometimes people leave their keys in their car, or at the office desk, to allow for their car to be moved. 7All cars parked in the staff car park are required to display a Sydney Buses identification card. 8An incident took place in the car park that led to his dismissal. The incident was captured on CCTV and is described below. 9At approximately 12 noon, the Appellant returned to the Depot at the conclusion of his rostered shift. Upon arrival at the car park to leave the premises, he found that he could not move his vehicle as it was blocked in by Ms Bornstein's vehicle. 10The Appellant reported to the Duty Office at approximately 12.07 pm and requested that the Supervisor make a broadcast call to staff seeking the owner of the vehicle attend the car park. In the absence of an immediate response to the broadcast, Mr Darcy advised the supervisor that "he would move it". The Supervisor directed the Appellant not to "move the vehicle himself". 11The Appellant returned to the car park and, at approximately, 12.12 pm, was captured on CCTV images placing a newspaper on his bumper bar. He was then captured reversing his vehicle directly into Ms Bornstein's car thereby pushing it a distance of approximately one metre backwards. 12He alighted from his vehicle at approximately 12.13 pm and inspected his vehicle. He returned to his vehicle approximately one minute later and proceeded to reverse his vehicle into that of Ms Bornstein a second time pushing it a further half a metre. 13At approximately 12.15 pm Ms Bornstein arrived at the car park in response to the broadcast and with the reported intention of moving her vehicle out of the way of the Appellant. 14Despite the presence of Ms Bornstein standing beside her car, the Appellant left the depot premises immediately without stopping and speaking to her about the possibility of damage and without reporting the situation to the depot management. 15Ms Bornstein was interviewed about the incident at approximately 1 pm and she provided management with a statement. 16Management viewed the CCTV images at approximately 2 pm and an investigating officer was appointed to conduct an investigation into the incident. 17An interview was conducted with the Appellant in the presence of the RTBU delegate, at approximately 3.50 pm that afternoon. At the conclusion of that interview, the Appellant was issued with a Form E1 and suspended without pay until the completion of the disciplinary proceedings against him. 18A report, including findings of the investigation, was completed and submitted by the investigating officer to the Depot Manager-Brookvale for consideration on 20 April 2012. 19The Depot Manager-Brookvale determined that the punishment of dismissal was appropriate considering the deliberate intention of the Appellant to bulldoze another employee's vehicle and refuse to stop and speak with its owner.