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". The Incident 22The Appellant was engaged on fuelling buses, moving buses in the yard and cleaning duties on 21 March 2012. 23Mr Khatter submitted a general report to management on the same day alleging that the Appellant had intentionally driven a bus towards him in order to squash him against another bus parked in front of it: .... On 21st March 2012 between 7 pm and 7.30 pm I was walking away from Browser, I walked next to a parked bus on stop sign as I walked near it Peter Lee was driving Bus and he intentionally tried to squash in between, bear in mind he was next to stop sign and browser was not empty. He tried to squash me in between that bus on the browser. 24The Depot Manager became aware of the incident on 22 March upon receiving the report. He retrieved the CCTV footage and viewed the images as part of his preliminary investigations. He said he observed the Appellant moving bus 2161ST towards Mr Khatter thus putting the latter's safety at risk. 25At 5.15 pm on 22 March 2012, the Depot Manager spoke to the Appellant about the incident. 26As a result of what he saw on the CCTV footage and the discussion with the Appellant, he issued a Notice of Summary Suspension to the Appellant which had the effect of suspending him without pay pending the conclusion of the disciplinary proceedings to be conducted against him. 27The Depot Manager requested the Staff Supervisor, Douglas Turnbull, to complete a Safety Investigation form in relation to that incident. He also requested the Business Manager Southern Region, Ms Rachael Byrnes, to undertake the discipline investigation in relation to that incident. 28On 29 March 2012, correspondence was forwarded to the Appellant by the Depot Manager requesting that he attend Tempe Depot on Friday, 30 March, to receive Form E1 specifying the allegations in relation to the incident on 21 March 2012. He was reminded of the availability of the Employee Counselling Service. Mr Lee did not attend as requested. 29The allegations against the Appellant (set out below) were provided to the Appellant when he attended the Depot on 2 April 2012. He was provided with 7 days in which to respond. 30In addition to the Appellant's written response dated 4 April 2012 which was received on the following day, he was interviewed by the Investigator, Ms Rachael Byrnes, Southern Regional Business Manager, on 24 April and 14 May 2012 and provided with further opportunities to respond to the charges. 31Ms Byrnes summarised her findings and submitted an investigation report on 15 May 2012 holding that both charges were sustained. 32Upon receipt of the finalised discipline investigation report and reviewing officer's comments, the Depot Manager telephoned the Appellant and arranged to meet with him on 31 May 2012 at which time the Appellant was issued with a Notice of Punishment and dismissed on 31 May 2012. The Allegations 33The Appellant was issued with a Form E1 on 2 April 2012 which set out the following allegations against him: Charge One On 21 March 2012, you breached the State Transit Code of Conduct in that you acted in an unsafe manner when you failed to operate your vehicle safely. Particulars of Charge One 21 March 2012, at approximately 7.11 pm you operated State Transit Bus 2161 ST in an unsafe manner when you intentionally drove the bus at another employee in the Tempe Depot Yard and put that employee's safety at risk. Charge Two On 21 March 2012, you breached the State Transit Code of Conduct in that you put a fellow employee's safety at risk. Particulars of Charge Two On 21 March 2012, at approximately 7.11 pm you operated State Transit Bus 2161 ST in an unsafe manner when you deliberately drove the vehicle and narrowly missed a fellow employee walking behind a stationary bus at the Tempe Depot fuel bowser area. THE CCTV FOOTAGE 34The CCTV footage from bus 2161 ST was downloaded on 21 March 2012. 35The footage was viewed during the proceedings. At commencement, it was noted that a bus was parked at the fuel bay. Another bus was next in line to be fuelled and was parked at the red stop line at the pedestrian crossing. When the bus in the bay completed fuelling, it pulled away from the fuel bay towards the yard parking area. That happened a couple of times until Bus 2161 ST arrived and the bus operator parked it in the correct position directly at the red stop line before the pedestrian crossing. 36Both the Appellant and Mr Khatter were viewed moving around the fuel bay area with the latter using the pedestrian crossing to get to that area. 37The Appellant was seen at the front door of Bus 2161 ST and then in the driver's seat. At that time, Mr Khatter had replenished his cleaning supplies and placed them on a chair in the fuel bay area. 38Although the bus in front had not stopped fuelling, the Appellant drove Bus 2161 forward across the pedestrian crossing. He kept moving forward until the bus was straddling the pedestrian crossing even though the bus in front was still fuelling. 39Mr Khatter re-appeared on the screen and was seen collecting his supplies from the chair in the fuel bay. 40The Appellant stopped Bus 2161 ST approximately 2 metres from the stationary bus in front of it which was still fuelling. 41Mr Khatter commenced to walk between the two buses and was at the edge of the footpath when the Appellant moved Bus 2161 ST forward despite the fact that the bus in front was still stationary. Almost simultaneously, Mr Khatter stepped off the footpath. He was between both buses and the Appellant was still moving bus 2161 forward. 42Mr Khatter crossed to the other side and the Appellant stopped the bus approximately one metre from the stationary bus. Approximately 23 seconds later, the stationary bus moved off and the Appellant drove Bus 2161 into the fuel bay. Another bus could be seen arriving and stopping at the red stop line at the pedestrian crossing awaiting its turn to fuel. THE INVESTIGATION 43Ms Byrnes was provided with access to his personnel file, including the charges in Form E1 and the Appellant's response to the allegation: .... I was driving a bus and approaching the fuel bowser for refuelling. As I proceeded to move my bus forward, I noticed the cleaner Narish walked out from behind the fuelling area and crossed my path behind a stationary bus. Despite the fact there is properly marked pedestrian footway only five metres from where he was crossing, he had chosen not to use it and walked in front of my bus. Particularly for this time of the night from 7.30 pm onwards, buses are returning back to the depot in droves and activities around the fuel bowser move at a quick pace. I did exercise caution. Whilst driving at less than 5kph and had just enough time to stop the bus to avoid a collision. My actions stopped this from becoming a bigger incident. 44Ms Byrnes conducted disciplinary interviews with the Appellant on 24 April 2012 and 14 May 2012. 45The Appellant, accompanied by his AMWU Union delegate, Mr George Simon, and Ms Byrnes viewed the CCTV footage on 24 April 2012. 46As per his written response, during the interview on 24 April 2012 the Appellant laid the blame at the feet of Mr Khatter. The Appellant claimed that he had averted a major incident by exercising caution and driving slowly. He contended that Mr Khatter should not have been at that location and, in any event, he should have used the pedestrian crossing which was behind the bus he was driving. 47During that interview he acknowledged that the said bus was queued about 5 to 6 metres away and was the next bus to be fuelled when he boarded it. He said that there were about four buses so he moved forward assuming that the bus in front was almost finished and ready to move on. Prior to viewing the CCTV footage, the Appellant claimed that "..when I stopped the bus the pedestrian crossing was behind me. Yes, behind me that's correct". 48After viewing the CCTV footage, the following exchange occurred in relation to the location of the pedestrian crossing: Byrnes: OK, I'd like to go back to the question where I asked you where I asked you where was the pedestrian crossing in relation to where you stopped the bus? Appellant: It was already passed behind me, maybe 4 or 5 metres behind where I was sitting the drivers seat. Byrnes: So you were parked over it? Appellant: Yes, but I did stop there to see that the pedestrian crossing wasn't being utilised, that nobody was crossing the crossing before I move it forward. 49At the interview on 14 May 2012, the Appellant was accompanied by another union representative, Frank Kocsis. The Appellant recounted the incident as follows: On that night this incident happened, I notice Mr Khatter's moving was in and around the bowser area. What I did not anticipate was when I took the bus too close to him, I did not see him crossing in front of me because I assumed that anyone wanting to use the crossing would use the pedestrian crossing.... .... My first response to the Manager was I knew what he was doing, he knew what I was doing and if I drove the bus too close to him it was not my fault.... 50The following exchange was recorded at that interview: Appellant: I said to Mr Rabbitt that I was surprised when I was called in as did not think much of the matter. When Mr Rabbitt confronted me with the matter of the night before I said to him I knew exactly what I was doing. I knew he was around the bowser, and if he walked in front of the bus and the bus is moving forward, I wouldn't pull up immediately. And Mr Rabbitt took offence with that comment. Byrnes: Did you deliberately drive the bus towards Mr Khatter? Appellant: I did not drive the bus deliberately at Mr Khatter, I moved the bus forward and the first thing I know as soon as I look in front of me, this person was right in front of me. I didn't realise this annoyed him 'cos he walked away and it was only the next day that he put in a complaint. Byrnes: It is further alleged at that same meeting with Mr Rabbitt, you also stated that when you moved the bus forward, Naresh got out of the way just in time. What did you mean by this statement? Appellant: He got out of the way just in time because I wasn't expecting anybody to cross without prior notice. There was a pedestrian crossing there and everything was clear and I look up in my rear view mirror and move forward. The first thing I knew just before I slammed the brake on this person was right in front of me. So I managed to pull up the bus just in time to avoid hitting this person. If it did hit him, in my opinion it wasn't my fault, because he just came out of the bowser and he wasn't supposed to be working in that bowser area. His presence there was only to make trouble. 51He conceded at the second interview that the bus he was driving was parked on the pedestrian crossing which would have been right under the driver's seat. Nevertheless, he insisted that the incident was Mr Khatter's fault because he gave him an opportunity to cross at the pedestrian crossing and Mr Khatter chose to remain stationary. He said that Mr Khatter was "...moving all about and disappeared" from his view. He decided to drive the bus forward and when he looked up "...there was Naresh". 52The Appellant advised Ms Byrnes that Mr Khatter had been looking for a way to get square with him since he called him "a fraud and always looking for a bludge". He believed that Mr Khatter was using this incident to "create some kind of disruption to his transfer". TRAINING 53Mr Lee completed training for Volvo B12 BLE EEV Driver Training and B12 BLE EURO5 Driver Training on 14 March 2011. STA Code of Conduct 54The sections of the STA Code of Conduct allegedly breached by the Appellant relevantly provide the following: Section 4.4 (c) This means that you must: c. ensure that your decisions are consistent, fair and in the best interest of State Transit, other employees and the public;... e. show respect and consideration to all other State Transit employees, be polite and helpful to your co-workers; co-operate as part of a team;... i. make sure you comply with all of State Transit Policies, agreements and reasonable and lawful instructions. Section 4.9 Employees should be economical, careful and considerate when using State Transit's equipment, vehicles and vessels. Section 4.13 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. Section 4.18 As a State Transit employee, you are required to perform all of 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. The Respondent's Evidence 55The evidence of the bulk of the Respondent's witnesses has been summarised above. 56The Depot Manager, Mr Rabbitt, gave evidence that at 5.15 pm on 22 March 2012 he spoke to the Appellant about the incident. Asked if he was aware of the incident, the Appellant replied that he was fully aware of it and stated that Mr Khatter had provoked him by deliberately walking in front of the bus so he moved the bus forward. When asked if he saw Mr Khatter before moving the bus forward, the Appellant had replied that he had seen him and when he moved the bus forward, Mr Khatter had got out of the way just in time. 57Mr Douglas Turnbull, Staff Supervisor at Tempe Depot, had been charged with the responsibility of completing a Form 179 Investigation Form on the incident. 58In order to undertake that role, he viewed the CCTV footage of the incident and completed the Risk Assessment Matrix rating the incident as a high risk. 59Mr Turnbull noted that when the Appellant entered Bus 2161 ST, he seated himself incorrectly in the bus seat and operated the bus, and continued to operate the bus while seated incorrectly: Mr Lee was seated in the bus seat incorrectly with the bus cabin door open and his left leg outside the bus cabin while accelerating with his right foot. 60His findings in relation to the two movements of the bus replicate those of Ms Byrnes. 61He gave evidence that even though he considered the likelihood of potential harm occurring to be rare, he considered the severity of any potential harm to be "catastrophic" given that Mr Lee's actions "could have resulted in the fatality or death of Mr Khatter". 62Mr Turnbull concluded, on 19 April 2012, that Mr Lee had failed to comply with the road sign and pedestrian crossing rules resulting in a near miss pedestrian collision. 63The Reviewing Officer, Mr John Palmer, gave evidence that he had reviewed the findings of the investigation officer and determined that: - the investigation process had been conducted in accordance with STA procedures; - the Appellant had been afforded procedural fairness throughout the disciplinary process; and - the findings of the report were appropriate considering the report and available evidence. He determined that dismissal was the appropriate punishment in the circumstances. The Appellant's Evidence 64The Appellant confirmed that his relationship with Mr Khatter and another ERA, Osman Haouchar, had deteriorated since he lodged a complaint against them on 14 July 2011 alleging they lacked a work ethic. He said the Yard Manager, Mr Michael Ferguson, had instructed him not to speak to either of them and for them not to speak to him. They were all instructed to go through him or any of the managers if they wished to communicate anything to one another. 65The Appellant stated that he had not been shown the complaint signed by six fellow employees on 8 November 2011 and did not know of its existence prior to reading the Statement of Mr Rabbitt prepared for these proceedings. He denied the allegations contained therein. 66The Appellant also denied the allegation made by the Duty Officer on 30 November 2011. He claimed that he only became aware of its existence when he read the statement of Mr Rabbitt. In any event, he contended that he had been instructed by the Yard Manager not to speak to Mr Naresh. 67The Appellant further denied the allegation made by Mr Standley that he had instructed Mr Khatter to perform an unsafe act. He claimed that he only became aware of the existence of that complaint when he read the statement of Mr Rabbitt. He denied the allegations contained in that complaint dated 29 December 2011. 68He confirmed that he had been offered mediation but pointed out that Mr Rabbitt told him that the process was compulsory and would lead to disciplinary action if declined. He confirmed that he had declined the offer as "the mediation process would not assist in repairing the fractured relationship between Naresh Khatter and I". 69The Appellant gave evidence that he was engaged on fuelling buses at approximately 6.30 pm on 21 March 2012 with another Engineering Repair Assistant when the driver of bus 2161 ST drew up and parked it at the red stop line and switched off in the engine. 70He took over the bus from the driver. He said he sat in the driver's seat but did not close the cabin door because the bus was only going to travel a short distance, some five metres, at a very slow speed to reach the bowser. 71He said that he switched the engine on but the bus was not moving at the time when he saw Mr Khatter standing less than 1 metre in front of the bus, picking up something almost next to the bus and then walking back towards the bowser. He said he lost sight of Mr Khatter after that. 72He said that he moved the bus forward at that stage and stopped about 1 -2 metres from the bus that was being fuelled at the bowser. The brake lights on that bus were switched on meaning that the brakes were on. He noticed that the brake lights went off and, thinking that the bus in front would be moving away very shortly, he drove his bus forward. At that point he could not see Mr Khatter. He pointed out that he had complied with STA training in that he had satisfied himself that there was no one in front of the bus before he drove forward for the second time. 73Immediately he saw Mr Khatter in front of the bus he said he applied the brakes and stopped the bus. 74He denied the allegation that he intentionally and deliberately drove the bus at Mr Khatter claiming that he had no intention of either harming or threatening Mr Khatter. 75The Appellant pointed out that all employees had received instruction from the STA not to cross the roads wherever they liked and were to use the pedestrian crossings provided. 76His recollection of the interview with Mr Rabbitt on 22 March 2012 was as follows: Rabbitt: Narish has filed a report against you. Are you aware of the situation yesterday? Appellant: Yes, I am aware of the situation. Rabbitt: Were you aware of Narish's presence at the bowser? Appellant: I am aware. You are aware that if Narish throws me a challenge that I will respond equally. Submissions 77The Respondent reminded the Board that the Appellant had a history of personal and work related grievances with Mr Khatter. In addition, he had previously threatened physical violence towards Mr Khatter. 78Despite the above, Mr Lee had refused to participate in grievance resolution between himself and Mr Khatter. 79It was the Respondent's view that the Appellant knowingly and deliberately moved the bus unsafely towards Mr Khatter thus placing the latter's safety at risk. 80The Respondent pointed out that as an employee of the STA, the Appellant was bound by its Code of Conduct. It was contended that he had breached the Code by his failure: * to make a decision in the best interest of another employee: (s 4.4(c)); * to show respect and consideration to Mr Khatter when he jeopardised his safety (s 4.4 (e)); * to comply with the Respondent's Code of Conduct and Operations Handbook when he moved the bus towards Mr Khatter (s. 4.4 (i)); * to be careful and considerate when using the Respondent's equipment, vehicles and vessels (s. 4.9); * to observe the Respondent's occupational health and safety policies and procedures in relation to the movement of the said bus (s. 4.13); and * to fulfil his health and safety legislative obligations in relation to taking reasonable care that his acts did not affect the health and safety of another person (s 4.18). 81The Respondent considered the incident to be a "near miss" and ordered an investigation into what it considered to be a serious safety breach by the Appellant. On a Risk Assessment Matrix, the incident was rated as a "high" risk as it could have resulted in Mr Khatter's death. 82The Respondent argued that it had afforded the Appellant procedural fairness as detailed above and its investigations had not prejudiced him in any way. 83The Respondent contended that its decision to terminate the Appellant's employment was appropriate pointing out that he had not shown any remorse or contrition for his actions nor had he conceded that his actions had been unsafe. In addition, the nature and seriousness of his actions outweighed the mitigating circumstances put forward by the Appellant. 84In conclusion, the Board was urged not to alter the decision made by the Respondent to dismiss the Appellant. 85The primary submission of the Appellant was that his conduct on 31 March 2012 did not breach the Respondent's Code of Conduct and policies and does not justify dismissal. 86If the Board accepts that contention, then his conduct prior to that date did not justify dismissal either. 87It was contended by the Appellant that the penalty of dismissal was disproportionate to any findings of misconduct and was also harsh when considered against his personal circumstances, work record and length of service. 88It was uncontested what the Appellant actually did on 21 March 2012 as was evidenced by the CCTV footage. What was in dispute between the parties was the Appellant's mental state at that time. The Respondent formed the view that the Appellant had a guilty mind in that his conduct was intentional and deliberate. The Appellant pointed out that if the Board determined that he had a guilty mind when he did what he did or he had been reckless, then that finding would resolve the primary submission against him. If, however, the Board was to find to the contrary, then it would result in the appeal being allowed. 89The Appellant pointed out that criminal proceedings had not been instituted by the Respondent despite the allegation of criminal conduct. It was submitted that the Board is required to be satisfied to the requisite standard and was urged to be mindful of the comments of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 in that regard. 90It was submitted that the explanation provided by the Appellant was perfectly plausible and none of the factors relied on by the Respondent in support of its contention that the Appellant had a guilty mind get remotely close to meeting the Briginshaw standard. 91The Appellant pointed out that, absent a finding that his conduct on 21 March 2012 was misconduct, then a dismissal cannot be justified as the Respondent has not put forward any evidence concerning the Appellant's work history over the last three years of his employment. 92The Appellant contended that the dismissal was harsh on account of its impact on his personal circumstances. Given that he is 65 years of age, it is probable that he will struggle to find alternative employment. 93Whilst it was conceded that the Appellant had an interpersonal dispute with two of his workmates, a solution in the form of a transfer to a comparable position at the Leichhardt depot had been offered and accepted prior to the incident occurring. 94In conclusion, the Board was urged to allow the appeal; order reinstatement as an Engineering Repair Assistant, Level 4, at the Leichhardt depot; order back pay; and order the preservation of the Appellant's continuity of service. The Findings 95The parties were in agreement that the Appellant and Mr Khatter had a history of personal and work related grievances with one another. Nevertheless, the evidence before the Board indicates that the whole team of six employees had problems with the Appellant. In the letter dated 8 November 2011 and signed by all six members of the team, words such as "intimidating" and "aggressive" were used to describe the Appellant. It appears that it did not occur to Mr Lee to apply for a transfer himself. 96The Appellant, in turn, had problems with at least three members of that team. In fact, the Appellant wrote to the Depot Manager on 12 December 2011 suggesting that the existing cleaning staff of six at Tempe be replaced by cleaning staff from other Depots and provided names of at least four staff he was aware of who would be interested in transferring to Tempe. 97Mr Lee usually commenced work at 11 am and finished at 8 pm. Mr Khatter usually commences work at 4 pm and finishes at 11 pm. Their paths crossed for approximately four hours per shift. Yet their relationship during that brief period was tumultuous. Mr Khatter wrote to the Respondent on 22 November 2011 complaining that the Appellant had threatened him with physical violence. He contended that the Appellant had said he will "knock him out and kill him" in the presence of named witnesses. For his part, the Appellant wrote to the Depot Manager on 15 December 2011 suggesting that "there will be constant trouble and unrest" as long as Mr Khatter was working at Tempe. Once again, it appears that it did not occur to Mr Lee to apply for a transfer. 98The Appellant's outbursts were not confined to his team members. He directed insults to his Supervisor on 22 December 2011 when he was asked to remove graffiti. He was sent home for the remainder of the day and as he was leaving he accused the Yard Supervisor of cutting his throat and threatened "that he will cut [the yard supervisor's throat]". 99Of grave concern to the Board is the fact that the Appellant knowingly instructed Mr Khatter to climb up on, and wash the top of, a tank containing concentrated ammonia. He became abusive towards Mr Standley, the cleaner who instructed Mr Khatter to climb down, resulting in a written complaint being lodged with the Depot Manager on 29 December 2011. Mr Standley also complained that the Appellant had threatened him with words to the effect, "I can fix you up & I can get people to fix you up". 100I do not accept that Mr Lee was told that mediation was compulsory. It is noted that he did decline to participate in mediation. I accept that he was advised that if he was unwilling to participate in mediation to work out his differences with Mr Khatter and continued to refuse to work with Mr Khatter then it may result in disciplinary action. 101It is interesting to note that Mr Lee chose to apply for a transfer rather than work out his differences with Mr Khatter through mediation arranged by the Respondent. 102Mr Lee refused to work with Mr Khatter on 31 January 2012 cleaning the windows of a bus and refused to undertake the same work with the Yard Supervisor. A complaint was made to the Depot Manager about Mr Lee's abusive response and his insistence to work alone. 103On 21 March 2012, the Appellant and another Engineering Repair Assistant commenced fuelling the buses as they returned to the Depot at approximately 6.30 pm. 104The Appellant confirmed that the driver of bus 2161 ST pulled the bus up and parked it at the red stop line in readiness for fuelling, some five metres from the petrol bowser. He confirmed that the driver had switched the engine off. 105The Appellant also confirmed that he was aware that Mr Khatter was moving around in the vicinity of the bowser although he may have disappeared from sight from time to time. 106The Board was provided with an opportunity to view the CCTV footage of the incident. 107The letter of complaint signed by the six employees on 8 November 2011 complained, amongst other things, that the Appellant "parks buses intentionally close to another so we can't walk between them". On 21 March 2012, the CCTV footage showed a number of buses park at the red stop line until the bus at the bowser moved off and then they proceeded forwarded to take its place to be fuelled. The Bus Operator of BUS 2161 ST parked it and switched the engine off at the red stop line. The Appellant was the only one operator who moved the bus forward beyond the red stop line and stopped approximately two metres from the bus that was still fuelling. He switched on the ignition and moved the bus forward until it was straddling the pedestrian crossing that Mr Khatter needed to access. 108As Mr Khatter could not access the pedestrian crossing, he started to cross between both buses which were stationary. Almost simultaneously, Mr Lee started to move his bus forward whilst Mr Khatter was between both buses with only two metres between both buses. Mr Khatter moved to the other side and Mr Lee stopped the bus approximately one metre away from the fuelling bus. It was not until 23 seconds later that the fuelling bus drove away and Mr Lee was able to drive forward and access the bowser. 109Setting aside for the time being whether Mr Lee's action was deliberate or intentional, it was certainly in breach of the Respondent's occupational health and safety policies and procedures in relation to the movement of buses. 110The Board has no doubt, given the history of the relationship between the Appellant and Mr Khatter, the evidence of the threats made by the Appellant, and the responses provided by the Appellant to questions put to him by management and the Investigator and during cross-examination, that the actions of Mr Lee on 21 March 2012 were deliberate and intentional. 111The Board also notes with concern that Mr Lee showed absolutely no contrition and did not accept any blame for any of the incidents. Of particular concern was his response to the investigator - ...So I managed to pull up the bus just in time to avoid hitting this person. If it did hit him, in my opinion it wasn't my fault, because he just came out of the bowser and he wasn't supposed to be working in that bowser area. His presence there was only to make trouble. [emphasis added] 112Of serious concern is the fact that the Appellant was operating a very large piece of machinery yet he did not consider the necessity to take full control of it. He admitted that he was seated incorrectly in the bus seat and operated the bus while seated incorrectly - the bus cabin door was left open and his left leg was outside the bus cabin while he was accelerating with his right foot. 113If an accident had occurred, then it would have had a "catastrophic" effect as it could have resulted in the death of Mr Khatter who would have been crushed between the two buses. 114The disciplinary action that may be taken by the Respondent are contained in Regulation 28 (1) and may include one or more of the following punishments: * a caution or reprimand * a fine of an amount not exceeding $100 * reduction in position, rank or grade and pay * suspension from duty without pay * dismissal. 115The Board acknowledges that the conduct displayed by Mr Lee was contrary to his statutory obligations pursuant to the occupational health and safety legislation and contrary to his obligations under the Respondent's Code of Conduct. 116The Appellant's deliberate and calculated action on 31 March 2012, his initial and continued responses which indicated no remorse or contrition in relation to that incident, his intimidation of fellow employees, particularly Mr Khatter, all lead to the inevitable conclusion that the penalty imposed was the appropriate remedy in the circumstances. 117On that basis, the Board cannot make a determination that the disciplinary action imposed by the Respondent was either harsh or unjust or unreasonable. ORDER 118The appeal of Mr Robert Peter Lee against the disciplinary action of dismissal by the State Transit Authority Division of the New South Wales Government Service is disallowed. 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: 18 December 2012