Robert Peter Lee and State Transit Authority Division of the NSW Government Service [2012] NSWTAB 37

Transport Appeal Boards New South Wales Medium Neutral Citation: Robert Peter Lee and State Transit Authority Division of the NSW Government Service [2012] NSWTAB 37 Hearing dates: 11 October 2012 Decision date: 07 December 2012 Before: Tabbaa C AM (Board) Decision: Appeal dismissed Catchwords: Dismissal; Intentional and deliberate action taken against another employee putting his safety at risk; Breach of Occupational Health and Safety legislation; Breach of STA Code of Conduct; Appellant's actions could have had catastrophic effect in that it could have led to a fatality; no contrition or remorse displayed; disciplinary penalty taken by the Respondent not harsh. Legislation Cited: Transport Appeals Boards Act 1980; Transport Administration (Staff) Regulation 2005 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Category: Principal judgment Parties: Mr S McLean (State Transit Authority) Mr A Walkaden (Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union) File Number(s): TAB 230 of 2012

DECISION 1This is a decision in an appeal pursuant to the Transport Appeal Boards Act 1980 and 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 Peter Lee from employment on 31 May 2012. 2Mr Lee commenced employment with the STA on 6 April 2009 as a part time Engineer Repair Assistant (Bus Cleaner) at Ryde Depot. He was employed as an Engineer Repair Assistant Level 4 at Tempe Depot at the time of the incident leading up to his dismissal.

Background to Disciplinary Incident 3On 14 July 2011, the Appellant wrote a letter to the Tempe Depot Manager complaining that two other Engineer Repair Assistants were putting in a mediocre effort in the performance of their duties and contended that most buses at night were only being partially swept. In addition, he stated that one of those Assistants, a Mr Naresh Khatter, whilst co-operative in his attitude, was always wanting to finish early so that he could be ready to go home. 4The Depot Manager responded to that complaint by arranging for more management supervision at night to monitor the cleaners' productivity and finishing times. 5On 8 November 2011, Mr Khatter wrote to the Duty Manager and Depot Manager complaining about the Appellant and asking that the issues raised therein be addressed by management. That letter, which was signed by six employees, complained that the Appellant - "...is continuously causing discomfort, attempting to disunite a happy team through inappropriate behaviour which includes aggressive and foul language. Examples of inappropriate behaviour include constant intimidating stares, verbal abuse, childish games which include the hiding of work instruments, parks buses intentionally close to another so we can't walk between them, constantly gets involved with things that do not concern him in a negative way rather than a constructive way, other examples of inappropriate behaviour can be discussed face to face." 6The Depot Manager arranged a meeting with the Appellant on 14 November 2011 to discuss the contents of the letter of complaint against him. Whilst discussing the difficulties he said he experienced in working with Mr Khatter, the Appellant brought up an allegation that he had purchased cannabis from another employee on 17 March 2011 and produced a small bag containing cannabis which he kept in his work locker as proof of that purchase. 7The allegation was referred to the police for investigation. The result of that investigation was that the Appellant was issued with a caution notice for possession of an illegal substance but the Police found that the allegation against the other employee, who it was contended sold him the cannabis, was unsubstantiated. 8The Board was advised that the STA also carried out its own extensive internal investigation into the allegation and found no evidence of drug use by any of its cleaning staff. 9A further letter was received from Mr Khatter, dated 22 November 2011, alleging that the Appellant had threatened him with physical violence. The letter read as follows: This is a report about a ongoing problem with Peter Lee, the most recent incident is a direct threat on my life where he uttered the words I will knock him out and kill him. These words were said to Michael Ferguson and Mark Davidson witnessed these words. Bear in mind I have not spoken to him or approached him in two weeks - since the last incident. Me and fellow workers have been trying to ignore him, but this intimidating and violent behaviour must stop, and state transit must act due to the fact it has gone on for to long. 10An Officer's Report was submitted by the Duty Officer at Tempe Depot, dated 30 November 2011, stating that: I have had trouble with Peter Lee again on Tuesday nite He refuses to talk to Naresh (cleaner) which is causing tension for Naresh. They do not work together very often but when they do there is a great problem with this. Peter is not creating a safe & friendly environment for Naresh to work with - This needs to be addressed ASAP. 11The Appellant wrote to the Depot Manager on 12 December 2011 alleging that Mr Khatter had attempted, in a calculated move, to provoke a showdown with him on 9 December 2011 at the fuel bowser. He complained that Naresh had attempted to ram his way past him while he was in the process of fuelling buses in order to gain access to domestic rubbish bins placed around and besides the bowser station. He contended that, had the shed driver not intervened, there would have been "an instant flare of hostility and that would be cause for concern". He suggested that the existing cleaning staff at Tempe be replaced by cleaning staff from other Depots and he provided the names of four that he knew would be interested in transferring to Tempe. 12The Appellant wrote a 2-page letter to the Depot Manager on 15 December 2011 regarding Mr Khatter. The letter commenced with the words, "Narish Khatter you are a lazy bum, full of pretence and a constant trouble maker". It went on to address Mr Khatter save for the last paragraph which concluded that he was unable to work with Mr Khatter and which called on the Depot Manager to immediately transfer Mr Khatter to another depot as "there will be constant trouble and unrest" as long as this person is working in the Tempe Bus Depot. 13As a result of the Appellant's refusal to undertake graffiti removal, a verbal altercation ensued between him and the Yard Supervisor resulting in the Appellant being directed by the Depot Officer to leave the workplace and go home for the day. The Report read as follows: Yesterday 22/12/2011 after attempting to manage some graffiti removal with Peter Lee, in which I was subjected to some verbal abuse and refusal. I proceeded in approaching the Depot Officer Steven Blight. I was immediately joined/companied with Warren Singleton in the yard where we both approached Peter, and my earlier requests were expressed. More verbal abuse came and Warren explained to Peter that my requests were reasonable, asking if he'd carry them out? I was responded with F.... off idiot, your no supervisor. No, F... off. Warren wasted no-time after some clear and reasonable requests, in instructing Peter Lee to gather his equipment, clean-up, sign off and go home. Peter Lee departed the work-place and further accused me of "cutting his throat and that he will cut mine". Threat! I explained no one was cutting his throat, only he, himself and wished him good-bye. 14On 29 December 2011, the Depot Manager received a letter from one of the cleaners who was concerned at the fact that the Appellant directed Mr Khatter to climb on top of the add blue tank to wash and clean the top of that tank. The author became concerned about the unsafe nature of the direction as the tank contained concentrated ammonia. He said he told Mr Khatter to climb down resulting in the Appellant becoming abusive towards him using the "f" word and telling him that if he was unhappy to "see the fucking Depot Manager". 15In his 1.5 page hand-written complaint, Mr Standley complained about Mr Lee's treatment of other cleaners, his threats to have them removed from the Tempe Depot and the threats the Appellant had personally made to him. He said that approximately 18 months' prior he had threatened "I can fix you up & I can get people to fix you up". Mr Standley stated that - I have nothing against Mr Lee in general except these issues mentioned. I am worried and concerned about the safeties and moral problems pertaining our work force safety. 16The Depot Manager met with the Appellant on 6 February 2012 with the Yard Supervisor, Mr Michael Fergusson, in attendance. The Appellant was advised by the Depot Manager that the latter was aware that he had recently refused duties which would involve him working with Mr Khatter. The Appellant was asked if he would be willing to work out his grievance with Mr Khatter through mediation with either the Depot Manager or a representative from the STA Equity and Diversity Unit. The Appellant was put on notice that if he was not willing to try and resolve his differences with Mr Khatter through mediation and if he still refused to work with Mr Khatter, then disciplinary action may be taken against him. The Appellant asked, and was granted, a couple of days in which to consider mediation and provide a response. 17The Appellant advised the Depot Manager, on 7 February 2012, that he would not be participating in any mediation arranged by the STA to resolve issues between him and Mr Khatter. He invited the Depot Manager to proceed with disciplinary action against him for refusal of duty and asked to complete a transfer request form. 18On 9 February 2012, the Depot Manager endorsed an application submitted by the Appellant for transfer to one of three Depots listed in order of preference. 19The Yard Supervisor, Mr Michael Fergusson, submitted a general report on 10 February 2012 advising that the Appellant had refused to work with Mr Khatter on cleaning windows of a bus on 31 January 2012: I was meet with a verbal eruption/rage from Peter concerning working with Naresh Khatter.... He felt I was "setting-up" this situation, to "F... off" this and that - "I'm not working with him!" 20Mr Fergusson asked Mr Lee, at the conclusion of the latter's crib break, to work with him on cleaning duties on another bus: Peter now refused to, with me, and explained he would only work on it by himself. 21Mr Fergusson concluded his report by expressing concern at the Appellant's "conflict and isolation, lack of team involvement".