Transport Appeal Boards New South Wales Medium Neutral Citation: Schrader v State Transit Authority [2012] NSWTAB 34 Hearing dates: 3 September 2012 Decision date: 31 October 2012 Before: Bishop C (Board) Decision: Appeals disallowed Catchwords: PUBLIC SERVICE - discipline - Bus Operator Trainer - lengthy unblemished service - allegations of bullying and harassment of Trainee during retraining - allegation of hitting windscreen causing a crack - suspended with pay pending outcome of disciplinary investigation - allegations sustained - punishment of regression to Bus Operator for 10 weeks - appeals against both suspension and regression - bullying and harassment denied - unprofessional conduct acknowledged -HELD - actions unacceptable in professional Trainer & particularly against lengthy record - actions distracting, intimidating and harassing - no acknowledgment of unacceptable behaviour - blamed on frustration with Trainee - in all circumstances punishment entirely appropriate - appeals disallowed. Legislation Cited: Anti Discrimination Act 1977 Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Category: Principal judgment Parties: Paul Schrader (Appellant) State Transit Authority Division of the New South Wales Government Service (Respondent) Representation: Paul Schrader (Appellant) Mr S McLean State Transit Authority (Respondent) File Number(s): TAB 188 & 227 of 2012 DECISION Introduction 1Mr Schrader commenced employment with the State Transit Authority (STA) in 1989 and since that time has worked in a variety of positions including Driving Assessor, Corridor Supervisor and Bus Operator Trainer. 2On 17 April 2012, Mr Schrader was suspended from duty with pay by STA pending the outcome of disciplinary proceedings arising from an incident on 16 April 2012 . 3On 20 April 2012, Mr Schrader lodged a Notice of Appeal (TAB12/188) indicating a plea of "Not Guilty". 4The matter was listed for disciplinary conciliation before Commissioner Ritchie on 25 May 2012 at which time conciliation took place. As the disciplinary investigation which had been commenced had not been finalised the matter was set down for report back on 30 May 2012. As no settlement was reached directions pursuant to Practice Direction 22 were issued. 5On the 28 May 2012, STA issued a Notice of Punishment to Mr Schrader regressing him in grade from a Bus Operator Trainer Level 2 (BOT2) to a Bus Operator Level 2 (BO2). 6On the 28 May 2012, Mr Schrader lodged a Notice of Appeal (TAB12/227) indicating a plea of "Not Guilty". 7The matter was listed for disciplinary conciliation before Commissioner Ritchie on 25 June 2012, at which time conciliation took place. As no settlement could be reached between the parties, the matter was joined to TAB12/188 and directions were issued as to the filing and exchange of written cases and statements pursuant to Practice Note 22 and the appeals were re-allocated to the Board as currently constituted and set down for hearing on the 3 and 4 September 2012. The hearing concluded on 3 September 2012. 8STA presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. Issue(s) 9Mr Schrader pleaded guilty to Charge 1 (with qualification) and not guilty to Charge 2 and sought that the penalties be set aside. It is therefore the Board's task to firstly determine whether the allegations against Mr Schrader are sustained, and secondly, if found sustained the appropriate penalty to be imposed in all the circumstances. Background and Chronology 10The following Background and Chronology is taken from the evidence and written submissions before the Board as filed by the parties. 11Mr Schrader was initially promoted to the position of Driving Instructor, Port Botany Depot in 1992 and subsequently to Bus Operator Trainer Level 2 (BOT2). In 2008 he commenced work as a Corridor Supervisor but voluntarily returned to the position of BOT2 at Tempe Depot in 2010, the position he held at the time of the incident the subject of the allegations. 12Mr Rabih Nachabeh was employed by the STA under a traineeship that commenced on 25 October 2012 and was scheduled for completion on 24 October 2012 and has been based at the Tempe Depot. 13On 16 April 2012, Mr Schrader worked training shift B454 as a BOT2. The rostered sign on time for the shift was 6:01am and the rostered sign off time was 15:21pm. He was required to train Trainee Bus Operator (TBO) Nachabeh who required retraining following a recent "driver responsible" motor vehicle accident. 14At approximately 10.45am Mr Schrader and TBO Nachabeh left the Tempe Depot for one-on-one training in Bus 2339ST. Upon returning to the Depot at approximately 1.55 pm Mr Schrader met with Staff Supervisor Douglas Turnbull and advised him that TBO Nachabeh had been assessed as "Not Yet Competent". During the meeting TBO Nachabeh complained about the treatment he had received from Mr Schrader during the retraining and assessment and subsequently completed an Incident Report dated 16 April 2012 (Exhibit 4-1). 15TBO Nachabeh's Incident Report noted that he "highly respected" Mr Schrader, had been previously been trained by him and "it was both pleasant and stimulating" however his experience on the 16th was "degrading and unprofessional". He also indicated that he was made to feel "belittled and humiliated" and this caused him "to lose focus and feel threatened and degraded". 16Mr Schrader subsequently booked up the bus on the Depot maintenance system for a cracked windscreen. 17On 17 April 2012, Mr Turnbull advised the Acting Depot Manager, Rachel Byrnes of the incident on 16 April 2012 and the claims by TBO Nachabeh. As part of a preliminary investigation CCTV images from Bus 2339ST were retrieved and viewed by Ms Byrnes. The CCTV images supported the claims made by TBO Nachabeh. 18On 17 April 2012, Mr Schrader was suspended from duty without pay pending the outcome of disciplinary proceedings . 19Following a preliminary investigation it was determined that Mr Schrader did have some allegations to answer. It was also decided to amend the suspension without pay to suspension with pay as from 17 April 2012. 20On 24 April 2012, Mr Schrader was issued with a Form E1 that set out the following allegations against him (Ex 4-3): Charge 1 On 16 April 2012, it you breached Section No. 4.9 and 4.13 of the State Transit Code of Conduct, by damaging State Transit property. Particulars of Charge 1 On 16 April 2012 at approximately 1.16pm, whilst conducting training with Trainee Bus Operator Nachabeh during shift B454: 1.You acted in an aggressive, inconsiderate and unsafe manner when you struck the front windscreen on bus 2339ST causing the windscreen to crack. 2.Your actions were unsafe, unprofessional and not appropriate to your position and caused State Transit equipment to be unreliable and in poor order for use by other employees. Charge 2 On 16 April 2012, you breached Section No. 4.3, 4.4 (e) and 4.18 of the State Transit Code of Conduct and Section No. 4.10.1 and 4.10.2 of State Transit, Harassment, Discrimination and Workplace Bullying Prevention Procedure, when you behaved in an inappropriate manner towards Trainee Bus Operator Nachabeh. Particulars of Charge 2 On 16 April 2012, whilst conducting training with Trainee Bus Operator Nachabeh during shift B454: 1.You failed to perform your duties and responsibilities to the required competency level expected of your position as a Bus Operator Trainer Level 2. 2.You spoke to Trainee Bus Operator Nachabeh in a disrespectful and impolite manner that lacked consideration of him as a trainee and caused him to feel belittled and humiliated. 3.You made aggressive hand movements while Trainee Bus Operator Nachabeh was operating vehicle 2339ST which were distracting to his concentration and were intimidating. 4.Your behaviour and actions are regarded as being bullying in accordance with the Harassment, Discrimination and Workplace Bullying Prevention Procedure (PROC 17.01). 21Mr Schrader was advised that he had 7 days in which to provide a written response to the E1 and that the CCTV footage was available should he wish to view it. He responded to the allegations in a detailed letter on 30 April 2012. 22Ms Byrnes requested that an investigation enquiry be conducted by Mr Peter Whitney, Duty Manager Kingsgrove. Mr Schrader was interviewed on 8 May 2012 and provided with a transcript of interview which he signed on 15 May 2012 (Exhibit 3-17). 23On 17 May 2012, Mr Whitney, as the Investigating Officer, completed his investigation and found that the allegations against Mr Schrader were proven. 24On 24 May 2012, Mr Brendan Rabbitt, Tempe Depot Manager and the Reviewing Officer determined that the appropriate punishment to be issued to Mr Schrader was a final warning and a ten (10) week regression in grade and on 28 May 2012 issued Mr Schrader with a Notice of Punishment including a final warning and 10 week regression in pay to the position of Bus Operator Level 2. However Mr Schrader was not able to recommence work that day as he was required to care for his grandchild and claimed Carer's Leave from 28 May to 4 June, returning to normal duties on 6 June 2012. Evidence on behalf of the Respondent 25STA's evidence before the Board was contained the Investigation Report (attached to Mr Whitney's statement - Exhibit 2) which included Mr Schrader's relevant Journal entry; the training forms completed by him in relation to the TBO's training; Incident Report of the TBO; relevant emails; Trainer and Assessor Code of Conduct; Mr Schraders' Record of Interview and documents presented by him during the Interview; relevant File Notes; the relevant CCTV footage; as well as Witness Statements from the following STA employees: Peter Whitney.......Investigating Officer & Regional Business Manager South (Exhibit 3), Rachel Byrnes.......Regional Business Manager, Southern Region, (Exhibit 4), David Browning.....Manager Registered Training Organisation (Exhibit 5), Douglas Turnbull...Staff Supervisor Tempe Depot (Exhibit 6), Rabih Nachabeh....Trainee Bus Operator (Exhibit 7), and Brendan Rabbitt......Depot Manager Tempe (Exhibit 8). 26Mr Whitney, Ms Byrnes and Mr Browning were not required for cross examination and did not therefore give oral evidence. 27Ms Byrnes' evidence concerned the procedures she followed after she was advised of TBO Nachabeh's complaint against Mr Schrader and is largely set out in the Background and Chronology above. 28Her evidence also covered the delay in Mr Schrader receiving a copy of the EI. She had telephoned him on 19 April and asked him to come to the Tempe Depot to receive the E1, however Mr Schrader advised that he did not wish to come to the Depot as people would know why he was there asked that it be delivered to his home by "the Truck". Ms Byrnes advised him that she could not do that and indicated she would call him back which she did on 23 April, directing him to attend the Depot to be issued with the Form E1. He maintained he was unable to come on that day as he had carer's responsibilities and subsequently came to the Depot on 24 April when Ms Byrnes issued him with the Form E1. 29After providing Mr Whitney with relevant documentation to enable him to commence his investigation into the allegations she subsequently had no direct involvement in either the disciplinary proceedings or the decision as to the punishment to be imposed upon Mr Schrader. 30Mr Whitney's evidence concerned his investigation of the incident of 16 April 2012. He attached his Investigation Report to his statement in which he concluded: 4.1 It is evident from Mr Schrader's interview transcript and CCTV evidence that he was frustrated, has acted unprofessionally and was not sensitive to the Trainee' needs in his role as a BOT 2. 4.2 It is on this basis that the charges as issued in the E dated 24 April 2012 are found to be proven. 31Mr Whitney also attached to his statement the 'Note' forwarded by Mr Browning to Mr Lazarou, Acting General Manager Southern Region as follows: I have viewed the CCTV footage of the incident. Even without sound, it is apparent that Paul Schrader is very agitated and it is my opinion that he deliberately struck the windscreen. Based on the footage, I believe he has not conducted himself as a professional trainer should. Further, his actions appear to breach the State Transit RTO Trainer & Assessor Code of Conduct as he appears to be harassing the trainee and is not sensitive to the trainees (sic) needs. Attached is the scanned State Transit RTO Trainer & Assessor Code of Conduct signed by Paul Schrader on 22.09.08. 32Mr Browning is the STA Registered Training Organisation Manager. He deposed that Bus Operator Trainers Level 2 have a functional reporting line to the Driving Development Coordinator who reports to the VET Supervisor (Systems) who in turn reports to Mr Browning. 33He deposed that on 19 April 2012 he was requested by the Acting General Manager Southern Region to view images of BOT2 Schrader conducting a re-train with TBO Nacahabeh. He deposed as to the views he formed. (As set out in the 'Note' attached to Mr Whitney's statement above). 34Mr Turnbull was acting in the position of Staff Supervisor at Tempe Depot on 16 April when he was approached by Mr Schrader saying he needed to speak to someone about the retrain assessment he had just undertaken with TBO Nachabeh. As the Acting Depot Manager was at a meeting, Mr Turnbull met with Mr Schrader and the TBO. He had not seen either of the two men earlier that day. 35Mr Turnbull stated that Mr Schrader advised him that he was not going to pass TBO Nachabeh as competent following the retrain and also stated that he broke the windscreen of the bus through his frustration at training the TBO. He went on to claim that the TBO "was in denial," and would not listen to his instructions during the training. Mr Turnbull also stated that Mr Schrader was very aggressive in his manner and language and appeared very angry towards the TBO. He was using angry tones and speaking loudly. He knew Mr Schrader's normal way of speaking and that day he was quite distressed or angry and speaking very aggressively. 36Mr Turnbull stated that throughout the meeting Mr Schrader continually put the TBO "down", who was visibly upset, appeared stressed by the situation, made an attempt to put his side of the story claiming he was a good driver, but Mr Schrader continually interrupted in an aggressive manner. 37Mr Turnbull clarified what he meant by putting the TBO "down" in that they were basically arguing about what a good driver Rabih was and Paul was explaining to him that he was in denial and wasn't listening. If someone was continually "over-talking someone then you're putting someone down", was how he took it. 38He also clarified what he meant by "visibly upset" in that TBO Nachabeh was sitting in his chair and looking down most of the time and from his face he could tell he was very unhappy and looked distressed to Mr Turnbull. 39He went on to state that at one stage Mr Schrader became extremely agitated and stood up from his chair so Mr Turnbull decided to defuse the situation and asked him to leave the office while he spoke to TBO Nachabeh, asking him to sign off on the assessment (which he did) and he would organise another assessment with a different BOT. He went on to say that most of the time Mr Schrader was pacing up and down and talking quite loudly and appeared to him to be agitated. 40Mr Turnbull then spoke to Mr Schrader separately, gave him the assessment paperwork and also told him that he had acted unprofessionally as trainer. Mr Schrader admitted that he "had lost it" and when he was reminded that he had broken the windscreen of the bus he then claimed it was because of the TBO's braking. 41Mr Turnbull considered Mr Schrader's behaviour out of character and it was obvious that he was very upset and very angry about what had happened earlier in the day and he could tell he was very aggressive and angry. He did not consider that Mr Schrader's behaviour was appropriate as a Bus Operator Trainer. 42Mr Turnbull was asked to comment on the two different accounts he had referred to concerning Mr Schrader's account of the breaking of the windscreen and indicated that the later reason (the braking of the bus) was what he believed Mr Schrader was going to use as a response. 43Mr Turnbull documented the meeting with the two men in an email to Ms Byrnes on 17 April 2012. 44Mr Turnbull subsequently rang TBO Nachabeh (who was rostered off on 17 April) to ask how he was feeling and arrange for a time for him to be re-assessed. The TBO advised that he was still upset but would be OK for work on Thursday. The TBO was successfully assessed by BOT Andrew Masterton on Wednesday 18 April 2012. 45Mr Turnbull was subsequently asked by Ms Byrnes to speak to TBO Nachabeh which he did on 8 May 2012, asking specific questions about the incident, which he documented and forwarded to Mr Whitney and Ms Byrnes. 46Mr Turnbull also described TBO Nachabeh's driving record as "average" and as compared to other drivers (who were all different) was not great as he was on Stage 1, was required to do retraining as he had a responsible accident and was already on Stage 1 having had a previous accident ten months prior. Compared to other drivers he thought that was "actually pretty good". 47Mr Turnbull did not agree that he had told TBO Nachabeh to sign the paperwork or be stood down, saying that he had explained to the TBO that they needed to get him to sign so they could get him assigned to another BOT and until he signed the form they couldn't continue. Mr Schrader was not present when that conversation took place. The TBO had to be retrained because he had been assessed by Mr Schrader as 'Not Competent' so he wouldn't be able to drive a bus without a trainer until he was assessed as competent. He was retrained and assessed as competent by a BOT 2 from another Depot on the TBO's return from an RDO. 48Mr Turnbull went on to say in cross examination that he did not have the power to stand any one down and all it meant was that that if it wasn't signed they could not organise another retrain and he couldn't drive a bus. That was not the same as being stood down and he would still be paid. He agreed that meant the TBO might have been sitting in the meal room all day. 49Mr Turnbull maintained that the TBO was not upset because he was deemed 'not competent', but "due to you fellas were at each other all day". 50Mr Turnbull said he did not remember Mr Schrader explaining the circumstances of him breaking RTA rules and the TBO agreeing. He also he could not remember Mr Schrader saying why he was upset, recalled lack of following instructions being said, but not about the meal beak or use of the mobile phone and guaranteed nothing was said about a mobile phone. 51Mr Turnbull was asked a number of questions concerning his knowledge of TBO Nachabeh's driving record, history (previous truck driving) and the at fault accidents. He considered accidents with mirrors "common" and was not aware of how many retrains the TBO had received. 52Mr Turnbull agreed that a Trainer did not have the right to behave unprofessionally because they had a difficult Trainee and that regardless of a Trainee's driving history he would expect the Trainer to act professionally. 53At the time of the incident on 16 April Mr Rabbitt was relieving in the position of Burwood Depot Manager and only became aware of it on 18 April while attending the Southern Region weekly management meeting. He had no direct involvement in the disciplinary investigation and on returning to his position at Tempe Depot received a copy of the Investigating Officer's report on 18 May 2012. 54After reviewing the Report and its findings he was of the opinion that the investigation process had been conducted in accordance with STA's procedures; Mr Schrader had been afforded procedural fairness throughout the disciplinary process; and on the available evidence, the findings were appropriate. He then completed a Reviewing Officer's Report determining that a punishment of regression in pay to a BO2 for a period of ten (10) weeks, was appropriate. 55Mr Rabbitt subsequently telephoned Mr Schrader on 24 May and asked him to come into Tempe Depot as so he could be spoken to about the outcome of the disciplinary proceedings. Mr Schrader advised him that he was unable to come to Tempe Depot because he had carer's responsibilities, could not come the next day because of TAB Conciliation proceedings and requested to be told the outcome over the phone. Mr Rabbitt advised him in turn that he wished to speak to him face to face but that the outcome was not dismissal. Mr Schrader did agree to come to the Depot the following Monday (28 May) when he was given the Notice of Punishment and Final Warning. 56Mr Rabbitt indicated that in determining the appropriate punishment to be imposed he had taken a number of factors into account, including Mr Schrader's good employment history and record. He agreed that if his employment record had been poor and there had been negative feedback from his peers and Trainees then the punishment would have been more significant. 57Mr Rabbit also indicated that he had been on the Selection Committee some two years previously when Mr Schrader had gone for promotion and one of the strengths observed was his ability to deal with a situation of a difficult trainee. 58Mr Rabbitt had also taken into account that Mr Schrader had shown no real contrition during the period and appeared to be concerned over loss of income but no real concern or regard to the incident that occurred. 59Mr Rabbitt disputed the figures that Mr Schrader had set out in his witness statement as to his monetary losses and thought the loss due to regression was more in the area of $1600, but could not give an accurate assessment without seeing his roster. He maintained that weekend overtime shifts were voluntary; Mr Schrader was paid as a BOT2 on those shifts currently; training was only carried out Monday to Friday; and while he was not currently training he was carrying out driving duties; the difference between the BOT2 rate and a BO2 rate was about $25 per day but did agree that while Mr Schrader was doing driving only duties he was working a straight 7.5 hour shift rather than an 8.5 hour training shift. 60Mr Browning was requested by the Acting General Manager Southern Region to view the CCTV images of the training of TBO Nachabeh on 16 April and after doing so was of the view that Mr Schrader was very agitated, deliberately struck the windscreen of the bus and did not conduct himself as a professional trainer should. He also formed the opinion that his actions had breached the State Transit RTO Trainer & Assessor Code of Conduct as he appeared to be harassing the Trainee and was not sensitive to his needs. 61Mr Whitney's evidence concerned the procedures followed in conducting his disciplinary investigation, the relevant documentation considered and his Report and Findings. 62Mr Nachabeh stated that during the retrain Mr Schrader was aggressive and he felt intimidated and threatened by his behaviour. He was yelling and screaming at him all the time and waving his arms. Throughout the day he was also belittled and spoken down to; called an "idiot", and told he was "stupid"; that he was "a shit driver", and "should go back to driving a truck, you dickhead". 63Mr Nachabeh stated that he told Mr Schrader his behaviour was distracting while he was driving but he continued to act and speak in a disrespectful, impolite and aggressive manner. He did not change his behaviour after he told him how he felt. 64He said that Mr Schrader sometimes sat in the first seat and also kept moving around the bus, stood in the centre and near the door. 65He also stated that after Mr Schrader cracked the windscreen he became even more angry and yelled "I am going to fire you" and "you are a shit driver". 66Mr Nachabeh stated that when they returned to the Depot, he got off the bus first and Mr Schrader yelled at him in front of the Yard Supervisor "get back here you are still under my instruction" which he said "made me feel like crap". Mr Schrader then took him into see the Staff Supervisor Turnbull and told him that he would not be passed as competent on the retrain. Whilst in the office Mr Schrader continued to yell and call Mr Nachabeh names. 67Mr Turnbull then spoke to him alone and explained that he should sign off the competency assessment by Mr Schrader and that Mr Turnbull would arrange for an assessment by a different Trainer. While he was not happy about the situation he signed the assessment as he had been informed he was not competent by Mr Schrader. 68Mr Nachabeh was advised by Mr Turnbull to leave the Depot and go home, which he did. He said that he was unable to sleep that night because Mr Schrader's voice was still in his head. He confirmed that Mr Turnbull rang him at home the next day and was subsequently retrained confirmed by BOT Masterton and assessed as competent. 69Mr Nachabeh said after the incident he felt a high level of anxiety and went to his GP and got some medication to help him sleep. He had anxiety, low self esteem and had a panic attack. 70During the retraining he felt disappointed, it was a little bit confusing and he was feeling uncomfortable driving the bus and felt unsafe to drive while Mr Schrader was screaming and yelling at him and there was a sign in the bus do not disturb the driver while he is driving. If he had to be retrained by Mr Schrader again he would rather resign. 71Mr Nachabeh denied telling Mr Schrader that he moved to the rear of the bus so he could text his girlfriend, he didn't have a girlfriend. He was listening to music because he was not able to take specific instruction as Mr Schrader was driving the bus. He had told him to take a seat at the end of the bus and observe how he drove. He was sitting on the right hand side of the bus on the tail where there is the movement. 72Mr Nachabeh maintained that back at the Depot he had gone into the meal room to speak to Mr Schrader to try to make his day easier and make him smile as he had noticed that he was not in a good mood. He told him to please leave him in peace so he went out of the meal room and went into the Institute Room about 20 feet away and watched the TV for about an hour. He did not leave that room or the Depot. Mr Schrader had said he would call him when he needed him. 73Mr Nachabeh did not consider he was interrupting Mr Schrader having his meal and when he asked him to leave him in peace and started talking with other friends at the table, he considered that meant he just didn't want to talk to him. 74Mr Nachabeh maintained that Mr Schrader had said "I'll call you when I need you". He had a lot of opportunities to call him, through the Duty Office on the pager or on his mobile or checked the Institute Room. He did not have to look for his Trainer. 75Since the incident he had been approached by Mr Schrader about writing a report and was asked to give him a piece of paper saying he didn't say those things and he said he could not do that as he had already lodged his report and told him he had to go. He maintained he did not say anything about it being harsh, as how would he know. Mr Schrader had never apologised for his actions. 76 Mr Nachabeh maintained in cross examination that on the first part of the shift Mr Schrader told him to go get a seat like another passenger and watch the tail movement at the back of the bus, this was for both trips. 77Mr Nachabeh agreed that it was the practice for a BOT to give verbal instructions whilst he was driving and during a retrain. He had a retrain with another Trainer who sat in the front seat, gave him instruction and told him at the end of the day if he passed or failed. 78Mr Nachabeh could not recall the exact details of where they went when he was driving or the circumstances of the turns he made. 79He maintained that going to Rockdale Plaza was not to do with his concentration but because he was hungry around that time which was 12.30 or 1pm. He denied that Mr Schrader provided him with feedback and explained what was expected of during his retrain to be deemed competent. While they were there Mr Schrader met up with a friend from a different Depot and had a conversation with him. Mr Nachabeh denied having a conversation with Mr Schrader about prostitutes or discussing the services available at such establishments. Evidence on behalf of the Appellant 80Mr Schrader gave oral evidence in addition to the witness statement as filed (Exhibit 9) and Mr Robert McGregor, Bus Operator Tempe Depot (Exhibit 10) also gave oral evidence. 81It was Mr Schrader's evidence that at the time of TBO Nachabeh's retrain he was not made aware of any of the details of the accident requiring the retrain or whether the TBO was considered responsible for the accident. After they left Tempe Depot that morning he subsequently asked the TBO the reasons for the retraining so he could determine the TBO's retraining needs. TBO Nachabeh told him that he had lost his offside mirror when it was hit by a semi-trailer and he was deemed responsible for the accident because he had not maintained his bus wholly within its lane. While his Staff Supervisor had requested the training TBO Nachabeh did not consider himself responsible for the accident and said to Mr Schrader - "I am a good driver". 82Mr Schrader stated that he advised the TBO the training would concentrate on lane positioning and asked him to sit close so he could observe Mr Schrader (who was driving the bus) and ask questions at the end of the trip. He did so for about 10 minutes and then moved to the rear of the bus and could be seen (via the bulkhead mirror) using his mobile phone. When they returned to the Depot at 9 am Mr Schrader asked him why he had moved to the rear of the bus instead of sitting where he was instructed and he said "I was texting my new girlfriend". Mr Schrader reminded him of the reasons that he was required to sit next to him so he could see how the bus performed, customer comfort and to observe his driving, but the TBO did not show any interest in this discussion. 83When they returned to the Depot Mr Schrader took his scheduled meal break and told the TBO to report to him in front of the meal room at 10:21am to resume training. While he was having his meal the TBO came and interrupted several times and Mr Schrader told him to leave him alone while he was having his meal. Mr Schrader stated that when he had finished and left the meal room at 10:21 the TBO did not turn up so he proceeded to see the Shed Driver to obtain a bus. The TBO arrived in the Depot at 10.45 although he was aware they were due out at 10:21am and when asked, did not offer any explanation for why he was late. 84Mr Schrader stated that when they left the Depot he was seated in the front near side seat, the TBO was driving but was not following simple instructions; not checking the bus mirrors correctly; turning left when he was supposed to turn right so Mr Schrader moved to stand next to him as his driving became unsafe. 85Mr Schrader stated that at approximately 11 am the TBO attempted to make an illegal right-hand turn and Mr Schrader was forced to take the steering wheel and instruct him to abandon the turn as he was illegally blocking the intersection. The TBO continue to disobey instructions and to ignore road and STA signage. As he was becoming frustrated by these actions he asked the TBO why he was not concentrating and was refusing to follow instructions and he responded that "I am starving". When asked why he had not eaten during the rostered 50 minute meal break they had on the day he responded that "I had no food". So at about 11:15 am Mr Schrader instructed him to drive to Rockdale Plaza so he could get some food and did this in the hope that after eating he'd be able to concentrate and have every opportunity to complete his training. 86Mr Schrader stated that after the TBO had eaten at the Rockdale Plaza he discussed with him the problems with his incompetent unsafe driving and his failure to follow instructions and advised him that he was required to demonstrate that he could operate a bus safety and follow the road rules and the TBO responded that he would be okay now that he had eaten. 87Mr Schrader stated that after they left Rockdale Plaza to continue the training the TBO continued to disobey road rules and regulations and appeared unable or unwilling to follow directions and made a number of illegal left turns. Mr Schrader asked him if anything was wrong because he had trained him three times previously and he had never shown this erratic behaviour but no reason was provided and his driving continue to be unsatisfactory. 88Mr Schrader stated that as they travelled along Russell Avenue Dolls Point, he directed the TBO to turn left at the next roundabout to Clareville St, however he did not indicate the turn and it appeared as if he was going to go straight even though Mr Schrader kept telling him they were turning left. As he did not appear to understand Mr Schrader's directions he started to use hand gestures but they continued straight into the roundabout. 89As a result they continued round the block so they could try to turn again and Mr Schrader asked the TBO why he had ignored his instructions and hand signals, but he didn't reply. As they were travelling along Russell Avenue Mr Schrader again moved to stand near the centre of the bus to observe its positioning as it went into the roundabout. The TBO's driving became very rough so Mr Schrader moved next to him again to discuss his driving. As he continued driving towards Malua Street he noticed a number of pedestrians standing between the traffic isles, facing away from the direction in which the bus was travelling and appeared to be crossing towards the opposite direction of traffic. The TBO suddenly hit the brakes and Mr Schrader fell forward against the windscreen and said that he "slapped the windscreen in fright and frustration without much force". 90Mr Schrader stated that in his 18 years as a trainer this had never happened before. He feared for his safety and was frustrated by TBO Nachabeh's failure to follow instructions for the entire day. Also after he fell forward he had a flashback to an incident when a bus operator that he was retraining took a corner too fast and he was thrown against the front door which opened and he was left hanging out of the bus whilst it slowed down and could easily have been injured or killed as a result of this incident. The matter was reported to STA, the video footage downloaded and later a mechanic told him that the bracket had been allowed the door to open but he had yet to hear back from Tempe management in relation to this. 91Mr Schrader stated that after he recovered his composure from the fall against the windscreen he asked TBO to move the bus as it was unsafely stopped in the middle of the road, this was done and Mr Schrader looked for a place to safely stop the bus to take over. The TBO noticed at this point that screen was cracked at the bottom but not where Mr Schrader had slapped it and Mr Schrader could only think that the glass was weak or had some thin fracture lines already as he did not have the physical strength required to crack and rock throwing proof windscreen by slapping it with an open hand. 92After a short distance the TBO pulled over and Mr Schrader asked him to get out of the driver's seat as he would be driving the bus back to the Depot and also told him that due to his failure to follow directions and to obey traffic rules he would deem him 'Not Competent to operate the bus'. The TBO took a seat and "appeared upset". On the way back Mr Schrader again explained the reasons for the result. The TBO said he was worried about his jab so Mr Schrader advised him to go and see the Depot Manager who would probably roster him for another retraining shift as his employment did not depend on that day's retrain. 93Mr Schrader said that when he arrived at the Depot he booked the bus up for the cracked windscreen. As the Depot Manager was not around he took the TBO to see Acting Staff Supervisor Turnbull, explained the events of the day and advised that he believed he had given the TBO every opportunity to demonstrate that he was competent to operate a bus, but in his opinion was not and signed the paperwork to that effect. The TBO stated he was a good driver and was told by Mr Turnbull either sign or be stood down and the paperwork was signed as Mr Shade was present. 94Mr Schrader said he left the office to see the Duty Manager discuss the events of the day and requested that the CCTV footage of the training be downloaded for future reference. He was subsequently advised that Ms Bynes wanted to see him and when he asked if she needed a report about the previous day she told it was more serious than that and he was being suspended without pay duty into the windscreen. After he left the Depot and went home he contacted Mr Lazarou, the Acting General Manager, and explained the circumstances leading to the incident and told him he believe that being suspended without pay was unnecessarily harsh and that he had been training STA employees for 18 years. He was told that the decision would be reviewed and he would get back to him but he never did. No one ever contacted him about the decision. 95Mr Schrader said he had asked Ms Byrnes to have the paperwork delivered to him by a supervisor as he considered this was the practice if an employee was suspended without pay. 96Mr Schrader also gave evidence about emails of enquiry that he had sent to STA without receiving any response. 97Mr Schrader said that during the subsequent interview with Mr Whitney they viewed the CCTV Footage. He had also asked for a copy of TBO Nachabeh's report because he had not been given the opportunity to see the allegations against him before responding to the charge and was told that there was no written complaint from the TBO. 98During the interview Mr Schrader also told Mr Whitney about the TBO's comments and conversations about visiting prostitutes and how upset he had bee about the TBO's lack of respect for his personal beliefs. Mr Whitney told him that these allegations would be investigated. 99When he was contacted by Mr Rabbitt on 24 May about coming to the Depot that afternoon to receive the Notice of Punishment Mr Schrader told him he could not do so as he was caring for his 3 year old grandson who had a broken leg. As the next day nominated was the day of his TAB Appeal he was told to come to the Depot on the 28 May which he did. 100Mr Schrader said that the investigation took six weeks during which time he was suspended. The decision to suspend him for the period of the investigation was very harsh and unnecessary as he was a long term STA employee and a Trainer for 18 years. There was nothing to suggest that he was a risk to the public or other employees. 101Mr Schrader stated he was punished immediately without an investigation and that the suspension cost him approximately $7000, causing him to miss his mortgage and electricity bills. It also caused him to withdraw support for his grandchildren, one of whom had suffered a broken leg and he had wanted to assist with medical expenses but was unable to because he did not receive any pay for months and found this very stressful. 102Mr Schrader also stated that he had not been permitted to do any training since he had been allowed back to work and doing shifts other than driving was costing him about $25 per day. He had been punished with a regression to Bus Operator which would impose a financial penalty of about $4000 to $5000. 103Mr Schrader stated that in addition to the official punishment he had been required to provide the RTO Manager with a 'show cause' letter as to why he should be allowed to continue in his role as a BOT. Mr Schrader had sent a response on the 18 June, with numerous character references, but had not received a reply. Mr Schrader stated that this was a further punishment in addition to the regression and about which he did not appear to have any recourse of appeal after spending many years working for STA and being raised to be a BOT2. He felt the way he had been treated was very harsh and out of proportion with his actions. It was also causing him great stress. 104Mr Schrader said that since the incident he had spoken to TBO Nachabeh and they had discussed the incident and they felt no animosity towards each other. The TBO stated he would have no problem if he ever trained him again and felt that STA had been very harsh towards Mr Schrader. 105Mr Schrader also attached to his statement a number personal references from co-workers and Bus Operators whom he had trained, generally attesting to his good character and ability as a Trainer. 106Mr Schrader sought that the punishment be altered to a lesser period of regression and that the period of suspension be taken into consideration. He had pleaded guilty to accidentally breaking the windscreen and acknowledged that he could have handled the situation better than he did. It was not his intention to bully or harass TBO Nachabeh and he was very sorry if he took it that way. 107Mr Schrader also sought that the matter of his position as a BOT2 with STA be dealt with by the Board as that was a further punishment. 108During cross examination of Mr Schrader he was taken through the CCTV footage of the incident with TBO Nachabeh. 109He maintained that it was normal practice to both sit in the front seat and stand beside a trainee during training. He agreed that it was not normal practice to pace up and down as he was giving instructions but did not agree that consistently moving around the bus could be a distraction and disconcerting to a trainee as the trainee should be looking in the mirrors all the time for passenger comfort and it would be no different. He was walking down to stretch his legs. 110He did not agree that he would be in the trainee's line of sight if he stood next to him as it would depend where he was standing. The only time he got in TBO Nachabeh's line of sight he said so and he would move straight away. 111Mr Schrader maintained that when he slapped the windscreen he was fearful of his safety because he braked for no reason at all. When asked why if he felt unsafe did he walk halfway up the bus he said he spoke to him when they regained themselves and they continued on. He acknowledged that he was frustrated. 112Mr Schrader maintained that he referred to a previous incident (concerning a door that opened) as an example of why he reacted that day. He had concerns about suddenly braking and lurching forward not out the door at that time. He was concerned about safety all round not just the door. When taken to CCTV footage showing him leaning against the door he maintained that the doors should not open and he was frustrated on the day, had shown the frustration and admitted it. 113He did not agree that slapping the windscreen was an unsafe act, it shouldn't break and he was trying to get through to TBO Nachabeh and demonstrate what would happen when someone braked suddenly. He did not think the windscreen would break and did not do it on purpose. 114He also maintained that they had stopped several times that day and discussed the TBO's actions and the problem with not following instructions. 115Mr Schrader did not think his actions (as seen on the CCTV footage) showed his manner was aggressive and intimidating. They were not aggressive, he was frustrated and the frustration could be seen. He didn't show any aggression towards him, his hand movements were on directions because they were missed. He went up close to talk to him. They had always been friends until that day. Any time he was in his vision, he told him and he moved out. He agreed that it could look aggressive depending on the way you looked at it and the circumstances but the video did not give the conversation 116When asked if he thought that it could have been seen as aggressive and intimidating by TBO Nachabeh he indicated that he was not even looking in the mirror so he wouldn't know what actions he was taking. 117Mr Schrader said he had not initiated the petition signed by other employees and attached to his witness statement. It had just been handed to him. 118Mr Schrader also again explained the circumstances of why he had been unable to come to the Depot (to pick up the E1 and the Notice of Punishment) when first contacted and that he had taken six days to provide a response because he was not used to doing correspondence and had to make sure everything was right. He acknowledged that if he had not been suspended then he would have been working and would still have had to provide a response within that time but indicated that he would not have been stressed out not knowing if he had a job or not. 119Mr Schrader said he had never apologised to Mr Nachabeh because he had never bullied him and there was no need to apologise for something he did not do. He agreed that he must have interpreted it that way as he had said that in the hearing but Mr Schrader had trained him on three other occasions and they had not had problems and they'd still spoken. He had no hard feelings towards him other than he's been frightened for his job and "it's sour grapes, that's the best way to react". 120Mr McGregor has been a Bus Operator with STA since 2008. He was Mr Schrader's support person present during the interview with the Investigating Officer, Mr Whitney. 121Mr McGregor stated that during the interview and in relation to the allegation concerning breaking the windscreen that he believed Mr Schrader had disclosed in a report on the retraining session that in an effort to demonstrate the danger of heavy brake application that he, Mr Schrader had slapped the windscreen of the bus with open hands to make a slapping sound and to demonstrate how standing passengers could be thrown around a bus during heavy braking. Mr Schrader told Mr Whitney that he had felt that it was necessary to amplify issues to TBO Nachabeh who seemed extraordinarily distracted and unable or unwilling to concentrate on the issues which required his retraining and to the process of identifying correcting shortcomings in his driving performance. 122Mr McGregor stated that they viewed the CCTV footage from the bus and it was clear that the footage did not show Mr Schrader coming into contact with the windscreen of the bus or the windscreen being either cracked or in a cracked condition. In subsequent discussion with Mr Whitney agreed that there was no proof that Mr Schrader had been responsible for the cracking of the windscreen and Mr McGregor suggested that it could have already have had apparently minor damage which could have spontaneously developed on that date due to imperfection in the body support of the windscreen, or the weather or rough roads. Mr Whitney agreed to obtain a report from maintenance experts and attempt to ascertain if they had any previous damage to that windscreen. 123Mr MacGregor stated that in relation to the allegation concerning bullying and inappropriate behaviour Mr Schrader suggested that there was perhaps an issue of "sour grapes " because the TBO had been failed on his retraining due to poor performance. Mr Whitney said he was unable to expand on the details of that allegation as the Staff Supervisor involved had not submitted a written report. 124Mr MacGregor stated that further to this Mr Schrader volunteered that during the retraining session the TBO had introduced personal discussion with a certain amount of jocular chat and that had concerned prostitutes. 125Mr McGregor stated that the level of this last discussion demonstrated to him that the TBO was indeed not focused on the issues of the retraining session and did not appear to be suffering from any bullying or other inappropriate behaviour from Mr Schrader. 126Mr MacGregor stated that Mr Whitney advised that he would be interviewing TBO Nachabeh and would raise the issue of inappropriate discussions for someone who felt they were being bullied. 127Mr MacGregor stated that at the conclusion of the interview Mr Whitney recalled his long association with Mr Schrader at STA and went so far as to state that he would be willing to give Mr Schrader a reference if he could. 128Mr McGregor agreed that Mr Schrader was given ample opportunity to answer questions during the interview. 129Mr McGregor agreed that he formed his opinion about TBO Nachabeh without getting the other side of the story and had not spoken to the TBO. Submissions on behalf of the Respondent 130Mr McLean made oral submissions in addition to the written submissions as filed (Exhibit 1 and 2) and in doing so drew the Board's attention to the relevant evidence relied on by STA as well as relevant documentation in evidence before the Board. 131In relation to Mr Schrader's appeal against his suspension (TAB12/188), it was submitted that he was suspended from duty in accordance with Clause 29 of the Transport Administration (Staff) Regulation 2005. The allegation of bullying was of a serious nature, particularly considering the BOT2 position he held and which impinged on his credibility as a trainer. TBO Nachabeh, the complainant, worked in the same Depot and it was considered inappropriate that Mr Schrader return to that Depot until the allegations against him had been fully investigated. STA also had a legal and moral obligation to provide an harassment free workplace for its employees. Mr Schrader's actions were a risk to those obligations and his suspension was a logical step to mitigate risk pending the investigation. 132It was also submitted that the decision to suspend was not taken lightly and was reviewed by the Acting General Manager Southern Region and also the RTO Manager. 133It was submitted that the evidence of the Depot Manager, Mr Rabbitt, indicated that Mr Schrader was suspended with pay and continued to be paid at the BOT2 ordinary rate of pay during the period of the suspension. There was no entitlement to claim for allowances and penalties that he may have worked should he not have been suspended. 134Further it was submitted that Mr Schrader was, at times, uncooperative during the disciplinary proceedings and could have taken steps to ensure the matter was finalised in a more timely manner. If he was concerned about the suspension he should have done more to ensure a timely conclusion to the disciplinary proceedings and therefore the retraction of the suspension from duty. 135It was contended that Mr Schrader's suspension pending the outcome of the disciplinary proceedings was legal, justified and appropriate. 136In relation to Mr Schrader's appeal against his regression in Grade (TAB12/227) it was submitted that the behaviour of Mr Schrader complained about by TBO Nachabeh on 16 April 2012 was supported by the CCTV images from the bus. The behaviour displayed towards the TBO was aggressive, belittling, and humiliating and this behaviour and Mr Schrader's actions amounted to bullying. Mr Schrader conceded that he "over reacted", was "frustrated" and that his "action was rushed and unprofessional". 137STA submitted that it was clear from the CCTV footage that Mr Schrader struck the windscreen of the bus resulting in a crack in the windscreen. He had admitted that he struck the windscreen "through frustration", resulting in damage to the windscreen and the need to replace the windscreen. His actions in this regard were unwarranted, unsafe, and unprofessional. 138It was submitted that Mr Schrader was an experienced Bus Operator Trainer who should have been aware of the standard and behaviour expected of him as a qualified trainer and assessor. His behaviour was a breach of STA Code of Conduct and the State Transit Harassment, Discrimination and Workplace Bullying Prevention Procedures. 139As an STA employee he had a responsibility to comply with STA's Code of Conduct which he had been issued with via an Employee Folder in 2000 and again in 2008. Both versions of the Code directed employees to act in an appropriate manner and in the best interest of STA and other employees. 140It was submitted that Mr Schrader had put forward several areas of mitigation the first being that he was frustrated by the actions of the trainee. Whilst this might be true Mr Schrader was an experienced qualified trainer and assessor and should have been aware of the correct manner in which to conduct himself during a training and assessment session and how to deal with a difficult trainee. Mr Rabbitt's evidence demonstrated that he knew how to deal with a difficult trainee. 141Further Mr Schrader had signed a copy of the Trainer and Assessor Code of Practice in September 2008 which specifically referred to harassment. As a Bus Operator Trainer he had an obligation and responsibility to comply with this Code of Practice. 142STA contended that Mr Schrader should have been aware of the appropriate standards of behaviour when conducting assessments of trainees. 143It was submitted that Mr Schrader was afforded procedural fairness and the investigation processes undertaken by STA did not prejudice him in any way for the following reasons: He was made aware of the nature of and the details of the allegations against him in writing and with sufficient detail to understand them and to be able to respond; During the disciplinary investigation process he was given opportunities to give an explanation for his behaviour through a written response to the allegation and also through a disciplinary interview with the Investigating Officer; He was offered the opportunity of a support person throughout the disciplinary process and had access to the Employee Assistance Program; The disciplinary investigation was conducted in accordance with STA procedures which included a review of the investigation process and a review of the findings by an officer not directly involved in the disciplinary investigation; The investigation and the determination of a punishment was based on the facts and the evidence from the investigation and he was not prejudiced in any way by the disciplinary process, and he Was advised in writing of the reason for his punishment of regression in grade. 144It was submitted that Mr Schrader had been unable to substantiate his claims of financial loss. 145In relation to the penalty imposed it was submitted that s.28 (1) of the Regulation empowered STA to impose a range of punishments, including regression in grade, a fine, suspension without pay and dismissal, against a STA officer following disciplinary proceedings. Bullying in the workplace and unwarranted damage to STA property were serious breaches which should attract a punitive sanction. 146It was also submitted that bullying in the workplace was a serious issue but in this case it was particularly so as the trainer was in a position of authority. There was also a power imbalance best demonstrated by the TBO's quote that when they got back to the Depot and got off the bus Mr Schrader said "get back here you're still under my instruction". The trainee was aware that the trainer had the power to ensure that he did not drive a bus and on the TBO's evidence he was threatened by the words "I'm going to fire you". The bullying was also undertaken in a situation where there was no other witness and the trainee was trapped and had no means of escape from the bus. 147STA submitted that the bullying was unwarranted and Mr Schrader misused the authority of his position. STA were exposed to breaches of the Anti Discrimination Act 1977 and Occupational Health and Safety legislation and there was a potential workers compensation claim that could have arisen, as well as claims of vicarious liability. 148It was further submitted that Mr Schrader's actions discredited STA's training activities and threatened STA reaching its training organisation accreditation. 149STA contended that the mitigating circumstances put forward by Mr Schrader were dubious and in any case would not be sufficient to justify his actions and behaviour while performing his duties as Bus Operator Trainer. Further, during both the disciplinary process and the hearing he did not demonstrate contrition for his actions and had blamed the trainee as the one who had caused his frustration. There seemed to be an absolute denial of any responsibility for the bullying. Mr Schrader had not admitted or acknowledged that he had bullied the trainee, nor had he apologised to him. His main focus appeared to have been on the apparent loss of income rather than a damage to his reputation. During the evidence Mr Schrader continually played the victim and attempted to discredit others. 150In determining the punishment of regression STA had considered Mr Schrader's employment record and history and for the Board to mitigate the punishment again would amount to a double discount. 151In conclusion STA contended that Mr Schrader committed a serious breach of the Code of Conduct and the State Transit Harassment, Discrimination and Workplace Bullying Prevention Procedures. Due process was followed during the investigation. His suspension with pay during the disciplinary investigation was warranted and the punishment of regression for a period of ten (10) weeks was consistent with the offence and appropriate. It was submitted that on that basis the Board should dismiss both appeals. Submissions on behalf of the Appellant 152Mr Schrader made oral submissions in addition to the written submissions as filed (Exhibit 11). 153Mr Schrader submitted that he had pleaded guilty to damaging the windscreen and had explained the circumstances in his evidence. Essentially due to the difficulties and lack of co-operation he experienced in training TBO Nachabeh, and the shock of being thrown against the windscreen, he had acted in a way that was out of character for him. He acknowledged that this action was rushed and unprofessional. He had learnt from that incident and asked both the Board and STA to be assured that it would never happen again. 154It was not his intention to break the windscreen or even hit it and he would not have believed that he was physically capable of breaking such strong glass by slapping it with an open hand. This had resulted from a very difficult day with a trainee who was not interested in his training and continually refused to cooperate to the point where he could have caused a serious accident. 155Mr Schrader contended that TBO Nachabeh had also continually tried to engage in inappropriate conduct, inviting him to visit prostitutes and discussing the service they provided. 156Mr Schrader said that he understood they had difficult days at work and in his 22 hears with STA it was not the first time he had encountered difficult trainees and he had dealt with them without problems. He was recognised as a trainer and a driver and his references also showed that. 157Mr Schrader submitted that in relation to Charge 2 he pleaded not guilty. He had over reacted in a way that was uncharacteristic, acknowledged the action was rushed and unprofessional, had learnt from the incident and it would not happen again. 158Mr Schrader disputed that he had spoken to TBO Nachabeh in a disrespectful, impolite manner that would have caused him to feel belittled and humiliated. He had needed to issue directions to him during his retrain and due to the fact that he did not follow instructions Mr Schrader needed to be sure that he understood the instructions. TBO Nacahbeh did many illegal and potentially dangerous actions and Mr Schrader needed to make sure that he followed instructions whilst in charge of the 20 tonne bus driving on public roads. 159Mr Schrader contended that making hand gestures when verbal directions were ignored was a human reaction. Those movements were not intended to intimidate the TBO but intended to get some response in compliance with his driving instructions which the TBO was ignoring. 160Mr Schrader denied that his actions constituted bullying and relied on the definition of bullying as set out in the American Heritage Dictionary. He submitted that he was not a bully and his actions that day did not constitute bullying. He was only attempting to deal with a frustrating and potentially dangerous situation. It was acknowledged that his conduct was unprofessional and that he should have handled the situation differently but he did not and had never used bullying in his 18 years of training STA drivers. He considered that if this was his nature had would have been brought to light prior to this incident. 161Mr Schrader asked the Board to accept that his actions were totally out of character and he had never in all his years of training reacted in such a way and assured the Board it would never happen again. 162Mr Schrader also submitted his actions on the day were the result of a trainee who deliberately ignored the instructions he was given and refused to cooperate despite the fact that his retraining was triggered by an unsatisfactory driving record. He contended that given that he had refused to sign TBO Nachabeh as competent to operate STA buses it was seen his interests to discredit him in to justify his failure to be passed in the assessment. STA did not take this into consideration nor did it dispute that the trainee's actions on the day were unsatisfactory. 163Mr Schrader submitted that the punishment he had received was excessive for the offences because of the following: His immediate suspension without pay when the allegations were made and before the investigation took place; The period of suspension cost him approximately $7000, caused him to miss mortgage payments and bills and be unable to financially support his grandchildren; He had not been permitted to do any training, costing him $25 per day; He had to provide the RTO Manager with 'show cause' letter as to why he should be allowed to continue in his role as a BOT; Regression to a Bus Operator imposed a financial penalty of $4000-$5000; The loss of wages imposed on him was many more times the cost of replacing the windscreen, There was the embarrassment of having everyone in STA know he had been demoted and not allowed to teach new drivers and students,and It was unclear whether he would be permitted to resume his position after the regression period. 164While Mr Schrader acknowledged that STA needed to take action in this incident but he believed that it could have been dealt with in an informal manner. 165Mr Schrader submitted that his punishment was out of proportion to the offences, when his 22 years good service was taken into account. The period should be reduced by the Board and the period of his suspension should also be taken into consideration. Findings 166This is an appeal under clause 32 of the Transport Administration (Staff) Regulation 2005 against STA's decision to impose the punishment of regression from Bus Operator Trainer Level 2 to Bus Operator on Mr Schrader. Mr Schrader has also appealed STA's decision to suspend him pending the outcome of an investigation into the events of the 16 April 2012 that resulted in the punishment imposed. 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. 167Mr Schrader in his Notice of Appeals has pleaded 'Not Guilty' and disputes the punishment imposed on him by STA. However during the hearing Mr Schrader amended his plea in relation to the breaking of the windscreen to "guilty with explanation". The Board's function in this matter is to determine firstly, whether the conduct as alleged took place and secondly, to determine whether the disciplinary punishment imposed by STA in relation to such conduct is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. The 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. 168The Board has very carefully considered all of the evidence and the submissions of Mr Schrader and the STA. The Board has also viewed the CCTV footage (Driver Cam and Cam Forward) in its entirety a number of times, not just those sections viewed during the hearing. As previously expressed in appeals, this has permitted an improved, clearer and closer view of such footage as compared to the view available on the large screen at some distance in the courtroom. 169In TBO Nachabeh's Incident Report of 16 April 2012 he stated inter alia as follows : My training with Paul was an experience that made me feel not only intimidated but also threatened as his training techniques were irritate (sic) and aggressive. Throughout the day I was belittled and spoken down to even though I professionally expressed to Paul how his behaviour was very distracting whilst I was driving. Paul Shreider (sic) continued to speak to me in a disrespectful and impolite manner, and once he saw no response from me he became aggressive and in an angry force used the palm of his hands to push the windscreen which caused it to crack. 170Having viewed the CCTV footage the Board can readily understand and appreciate exactly why TBO Nachabeh expressed himself in those terms and complained of Mr Schrader's behaviour. He had good reason to complain. It was far from "sour grapes", the characterisation made by Mr Schrader and a characterisation which demonstrates his lack of understanding as to the genuine concerns about his behaviour and actions during the retrain on 16 April 2012. 171The CCTV Footage commences at the Rockdale Plaza. Mr Schrader seated himself in the front seat as the bus pulled out. This only lasted a matter of seconds before he was on his feet as the bus approached and stopped to await the lights and then turned left onto the Princes Highway. Apart from a few brief seconds towards the end of the footage when he resumed the front seat, he remained standing, hanging on to the top of the driver's cabin door or leaning against the green ticket machine at the front of the bus next to the driver or leaning against the yellow pole at the front seat until he took over the driving. There were also two occasions when he strode up the aisle to the centre of the bus in a clearly angry fashion as well as hanging on the overhead straps in an angry and frustrated way. 172Almost the entire time he was talking to the TBO he was doing so in a lecturing, and at times what could only be described frankly as an haranguing manner. He made extremely frequent hand gestures and sweeping arm movements. Most of those hand gestures were made whilst he was standing right next to the TBO, and indeed on occasions impinged across into the cabin area. At one stage he actually leant into the TBO with both hands thrust towards him. Mr Schrader gestured and pointed to himself on occasions, and made other hand movements which appeared to indicate distances or towards other vehicles or the roadside. He was talking almost constantly. The TBO did respond and there are exchanges of conversation between the two men. 173Whilst there is no sound to the CCTV footage it is abundantly clear to the Board that the whole manner of Mr Schrader's engagement with the TBO, from his facial expressions, his hand movements and his body language, was angry, aggressive and would clearly have been very intimidating and extremely distracting to any driver let alone a Trainee on a retrain. This manner of engagement was carried on the whole way along the Princes Highway, Rocky Point Road, Ramsgate Road and around onto the Grand Parade and thence onto Malua Street. (The Board indicated its familiarity with the area to the parties during the hearing). 174On the approach along Russell Avenue towards the roundabout at Clareville Street, Mr Schrader was leaning against the yellow pole and he can then clearly be seen saying "turn left". When the TBO is obviously carrying on through the roundabout Mr Schrader does make sharp left pointing hand gestures (in a very angry fashion leaning into the TBO) but by then it would have been too late to execute the left turn. The bus continued up to the roundabout at Napoleon Street and back down Russell Avenue towards Malua Street. 175However it is clear that when the TBO is approaching the curve into Malua Street, and the pedestrians can be seen in the traffic isle waiting to cross to the other side of the road and the Peter Depena Reserve area (and are not concerned with, or by the bus), the bus slows, it does not brake suddenly. The reason could well have been that clearly visible on the shoulder of the road on the left are parked cars and at one car there are two male persons standing, one of whom has the back door open trying to remove something and has his feet over the white line. The other male person is standing by the closed driver's side door. At this stage the road is a single lane. It is about this time that Mr Schrader strides forward in a deliberate way, does not fall forward, and makes an obvious forward motion with his body which is the striking of the windscreen. 176The bus continues around the block from Malua Street (via Gannon Avenue and Norman Avenue) but that just leads it back to Russell Avenue where instead of turning right, which would have taken the bus back to the Clareville Street roundabout, it turned left and that again went back into Malua Street. It was around the corner just before Gannon Avenue that the bus does stop in the middle of the road for no apparent reason then executes a left turn goes back around eventually into Russell Avenue and pulls up at the next bus stop where Mr Schrader takes over. However this was after the windscreen had already been struck by Mr Schrader. 177When TBO Nachabeh sat in the front seat and the bus moved off, he can clearly be seen to be arguing with Mr Schrader in a forceful way, pointing with his hand and appears angry and upset. After some seconds and a response Mr Schrader makes a sport's "time out" gesture with his hands and then the TBO sits with his face in both hands for some seconds and appears quite upset. There is little or no exchange between the two for the remaining footage. 178Whether or not TBO Nachabeh was following directions that day, had not been where he should have been after the meal break at the Depot, engaged in inappropriate conversation at Rockdale Plaza, is quite beside the point. He was Trainee Bus Operator of only 18 months experience as compared with the 22 years experience of Mr Schrader and as a professional Trainer for some 18 years. With such experience those factors, even if they were all true, were just no excuse for the unprofessional behaviour and conduct towards TBO Nachabeh displayed by Mr Schrader. 179Mr Schrader's anger and aggressiveness towards the TBO, as well as the TBO being visibly upset and stressed was noted by Staff Supervisor Turnbull in his oral and written evidence concerning the subsequent meeting at the Depot. Mr Browning, (the RTO Manager) on viewing the CCTV footage, also noted Mr Schrader's unprofessional conduct and that he appeared to be harassing the TBO. 180The Board has carefully considered all of the evidence and the relevant STA policies. The Board considers that it is beyond doubt that Mr Schrader conducted the retrain on 16 April 2012 in an unprofessional and intimidating manner and that his actions did constitute bullying and harassment of TBO Nachabeh, His manner and actions, particularly his hand gestures, would have been very distracting and not conducive to establishing a good learning environment for a trainee. 181The Board considers that it was entirely appropriate to have suspended Mr Schrader from the Depot pending the outcome of the disciplinary investigation, given that serious allegations had been made by a Trainee at the same Depot and in the light of the CCTV footage. Whilst the suspension was initially unpaid that decision was reviewed and he was subsequently paid. There was some delay to the finalisation of the process contributed to by Mr Schrader's own actions. The Board accepts that STA had an obligation to ensure the safety of its employees at the workplace and did so in a appropriate way. 182Whilst the Board notes Mr Schrader's 22 years of unblemished service, including 18 as a professional trainer, that in itself imposes a greater expectation that an employee will be fully aware of, and conduct himself in accordance with, the appropriate and relevant policies of the STA including those relating to bullying and harassment and training and assessment. 183The Board is extremely concerned that Mr Schrader just does not appreciate his implications of actions during the retrain, has no real insight into his own behaviour, has shown no contrition (until the hearing) and has sought to shift the blame onto the TBO for causing his frustration, as if in some way that excuses his behaviour and actions. That is just not the case. No other explanation was put forward for his behaviour and actions that day. 184It may well be that Mr Schrader could benefit from retraining in the appropriate and relevant STA policies. That is a matter for STA to determine. 185based on all the evidence the Board finds that the Charges against Mr Schrader are sustained and that in all the circumstances the punishment imposed by the STA is entirely appropriate and intends to uphold STA's decisions in these appeals. It is a matter for the RTO Manager to determine when Mr Schrader returns to training and under what conditions. Order(s) 186The appeals of Paul Schrader (TAB12/188 and TAB12/227) are 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: 31 October 2012