Industrial Relations Commission New South Wales Medium Neutral Citation: von Senff v State Transit Authority [2013] NSWIRComm 1013 Hearing dates: 9 July 2013, 16 August 2013 Decision date: 22 August 2013 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Appeal upheld Catchwords: DISCIPLINARY APPEAL - Dismissal - nature of Commission's jurisdiction - s.98 proceedings a hearing de novo - whether discipline protective or punitive - power to discipline not protective in nature - approach to assessing punishment - where punishment invoked repealed regulation - power to dismiss existed under new regulation - power to punish held to exist even where repealed regulation called in aid - bus driver using STA-supplied two-way radio while in control of bus - safety - two-way radio differentiated from use of mobile phone - use of mobile phone wholly unacceptable - ambiguity of instruction regarding use of two-way radio - driver understood himself to be obeying instruction - no misconduct proven - appeal upheld - consequential orders Legislation Cited: Industrial Relations Act 1996 s.98, 100C, 100D Transport Administration Act 1988 s.68E Transport Administration (Staff) Regulation 2005 Transport Administration (Staff) Regulation 2012 rr 13, 16 Cases Cited: Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Commissioner for Police v Donlan (unreported, Supreme Court of NSW, 8 August 1995) Duckworth v State Rail Authority of NSW (2002) 119 IR 360 Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 276 National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 Re PSA and POA and Macquarie Generation [2004] NSWIRComm 11 Saini v Director-General, NSW Agriculture (Court of Appeal of NSW, 11 November 1996, unreported) Trigger v Australian Telecommunications Commission (1984) 6 IR 446 Category: Principal judgment Parties: Dr Hans-Dieter von Senff (Appellant); State Transit Authority Division of the NSW Government Service (Respondent) File Number(s): IRC 88 of 2013 DECISION 1This is a Public Sector Disciplinary Appeal brought pursuant to s.98 of the Industrial Relations Act 1996 ('the Act'). I emphasise that it is not an application in respect of a clamed unfair dismissal brought pursuant to s.84 of the Act. 2Dr Hans-Dieter von Senff appeals against the decision of the State Transit Authority Division of the New south Wales Government ('the STA') to dismiss him from his employment as a bus driver. 3Dr von Senff was dismissed from his employment on 30 January 2013. 4He was dismissed for reason that on 31 December 2012 at about 7:29 pm, while he was driving bus number 2391ST on run H441 on the Pacific Highway, he used the STA-fitted two way radio to contact Newcastle Control Centre while driving the bus in traffic. This was, it was said, a breach of a lawful direction. It was also said to be operating the bus in an unsafe manner. It was held to be misconduct. Facts 5The facts of the incident which led to Dr von Senff's dismissal were essentially not in dispute, apart from a disagreement over the degree to which the bus he was driving was running late on the relevant day. Indeed, the facts of what actually occurred on the day are recorded on video, which the Commission has had the advantage of seeing. 6The evidence disclosed the following. 7All STA buses, and certainly the bus operated by Dr von Senff on 31 December 2012, are fitted with a two-way radio. The radios connect bus drivers to the control rooms operated by the STA. The radios were fitted by the STA for the STA's purposes and there are certain circumstances, to which I return below, in which it is compulsory for drivers to use the radio. These circumstances relevantly include when a bus is running more than 10 minutes late. 8The radio cannot be used in hands-free mode to talk to the control room but requires the bus driver to hold a handset in one hand to speak. Contact with the control room is activated by the driver pressing a button. The control room will then respond. There is no certainty about the time in which the control room will respond. In Newcastle the officer in charge of the radio in the control room also has other duties. When the control room does respond, the driver is alerted by a beeping sound on the radio. The radio handset is located somewhat behind the driver and to one side of the driver's seat. To speak to the radio room the driver must physically pick up the handset, therefore, from a position slightly behind him and to one side of him. 9On 31 December 2012 Dr von Senff was driving bus number 2391ST on run H441 on the Pacific Highway. At about 7:29 pm, near Belmont, he used the STA-fitted two way radio to contact Newcastle Control Centre while driving the bus in traffic. Those are, I observe, the facts alleged against him in the letter of dismissal. Dr von Senff readily admits those facts. 10Dr von Senff used the radio to contact the control room, he said, because he believed he was running at least 20 minutes late. 11He understood that he had an obligation to call the STA radio room if he was running more than 10 minutes late on any run. On the STA's evidence he was correct in so understanding; the Bus Operations Handbook contains at part 7 a rule that it is 'compulsory' for a driver to contact the radio room in those circumstances. 12On the STA's calculations, the bus was not 20 minutes late but only 7 minutes late at Belmont. Nothing turns on this in the end because on the evidence it is apparent that Dr von Senff, rightly or wrongly, believed he was 20 or more minutes late. That is why, it is not contested, he decided that he must contact the control room on the radio. 13Dr von Senff pressed the control room contact button while driving the bus in traffic. 14It was very quickly answered. The radio beeped while Dr von Senff was driving the bus. He picked up the handset, which involved his looking down for a moment with his eyes off the road. He held the handset to his ear while controlling the bus with one hand and watching the road. He spoke into the handset. Although audio did not accompany the video it appears from the video that Dr von Senff spoke for a matter of a few seconds, but the total time that he held the handset to his ear was 36 seconds. 15Dr von Senff's evidence was that his part of the conversation was simply to say that he was running 20 minutes late. His evidence was that that took him five seconds, but that then the 'fellow on the other end...made a chatty comment'. 16No incident of any kind occurred while Dr von Senff held the handset to his ear. 17The video which began a short time before the radio call, showed that at times before making the radio call Dr von Senff controlled the bus with one hand on the wheel while his other hand rested on his leg. Nothing was said in the letter of charge or the letter of dismissal to suggest that this was an unsafe practice. Subsequent process 18The STA received a telephone call, presumably from a member of the public, advising that an STA bus operator had been seen using a mobile phone while driving a bus. The run number and time were provided, and the STA were able readily to identify that it was Dr von Senff's run and that the device used was not a mobile phone but the STA two-way radio. 19As I set out above, Dr von Senff does not dispute the facts of the matter. Indeed, he did not dispute them all along, acknowledging them in a meeting with STA officers on 11 January 2013 and confirming them in writing subsequently. 20On 30 January 2013, the STA issued Dr von Senff with a Notice of Punishment which set out that the behaviour which is set out above was misconduct for which punishment may be imposed under the terms of Clause 28(1) of the Transport Administration (Staff) Regulation 2005. 21The punishment imposed was dismissal, effective on that date. 22It is that decision which Dr von Senff appeals. The statutory scheme 23While neither party addressed this matter, it is apparent that the statutory scheme is the essential underpinning to the conduct of this appeal. The Commission's powers 24This is, as noted above, an appeal brought pursuant to s.98 of the Act. I note that the appeal was lodged within the 28 days prescribed by subs.100B(2) of the Act. 25The Commission's statutory powers in relation to an appeal of this kind are set out at ss.100C and 100D of the Act, which fall within Division 3 of Part 7, Public Sector Promotion and Disciplinary Appeals, of Chapter 2 of the Act. 26These sections, indeed this Division, were inserted into the Act in 2010. 27.Section 100C provides as follows: 100C Decisions with respect to appeals (1) The Commission, in relation to a promotion appeal, may decide to allow or disallow the appeal. (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 28Section 100D provides: 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may: (a) if the employee has paid a fine imposed by the employer or his or her pay has been forfeited-order the employer to repay the amount of any such fine or forfeited pay, and (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer. (2) Any such order by the Commission must be given effect to by the employer. (3) Nothing in subsection (1) enables the Commission to make an order for compensation in the case where a person is not reinstated or does not continue in employment. 29It is immediately apparent from the words of subs.100C(2) that an appeal before the Commission is an appeal de novo. That is, the Commission is to hear and determine the matter afresh on the materials before it, not simply review the decision of the initial decisionmaker: see Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91. 30The Commission may, in relation to a disciplinary appeal, allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. The Commission is therefore not constrained merely to accept or reject the initial decision. It may impose any decision it thinks fit, including a harsher penalty than that which the initial decisionmaker imposed. Despite the words of the Act, it is arguable that the Commission might be constrained with respect to a decision it might impose by the scope of punishments available under the statute to the initial decisionmaker. I do not however have to determine that issue to resolve this appeal. The applicable jurisprudence 31 Division 3 of Part 7 of Chapter 2 of the Act was inserted by Act 54 of 2010. It essentially transfers the jurisdiction formerly exercised by the Government and Related Employees' Appeal Tribunal ('GREAT') and the Transport Appeals Board ('TAB') into the Act. Indeed, the Explanatory Memorandum to the Bill specifically identified ss.100C and 100D of the Act as being ' substantially the same as sections 48 and 48A, respectively, of the GREAT Act.' 32In the Second Reading Speech (Hansard, Legislative Council, 23 June 2010) it was made clear that the jurisprudence previously exercised by GREAT is not altered by the incorporation of those provisions into the Act. The Second Reading Speech contained the following explanation: The Government recognises that public sector promotional and disciplinary appeals are unique issues, quite distinct from general industrial disputes, and that resolution of these matters requires a tailored approach. For this reason, the bill will not affect the fundamental principles which underpin the existing public sector appeals framework. Nor will it alter the format and style of hearing practices that have been refined over time and which public sector employees, employers and their representatives are familiar with. The bill preserves current hearing processes for both informal and formal appeals under the Government and Related Appeals Tribunal Act and the Transport Appeals Boards Act, while granting the commission sufficient flexibility to make adjustments to suit prevailing operational and administrative requirements. 33It follows that the jurisprudence developed by the TAB, and that developed by GREAT pursuant to ss.48 and 48A of the GREAT Act, is to be followed by the Commission in exercising its powers under ss.100C and 100D of the Act. 34That does not, however, necessarily import the proposition that the disciplinary power exercised by the STA pursuant to the Regulations is 'protective, not punitive' as disciplinary powers exercised by, for example, the Commissioner for Police have been held to be: Commissioner for Police v Donlan (unreported, Supreme Court of NSW, 8 August 1995). 35The position with respect to employees of the STA in positions such as that which Dr von Senff held is different to that of a police officer or indeed any public servant charged with holding a public office who may have obligations akin to fiduciary obligations. In respect of positions with fiduciary-like obligations and functions the applicable disciplinary system is, as was held in Donlan, protective. There is not, however, to be found within the Regulation - or indeed the Act - in its application to an employee such as Dr von Senff any basis for importing a protective jurisdiction of that kind, and a disciplinary sanction imposed on an employee such as Dr von Senff is simply punitive in nature, not protective of the general public: Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 276, at [106]-[107]. 36That has the important effect that the Commission's assessment of the punishment imposed on Dr von Senff, and the exercise of the Commission's own jurisdiction in an appeal de novo, does not require it to pose any question as to whether it was or is in the public interest for the appellant to be allowed to continue as an employee of the STA. So far as the decision of the Australian Industrial Relations Commission in Duckworth v State Rail Authority of NSW (2002) 119 IR 360 may be taken to say something different, I prefer the reasoning of the Supreme Court of NSW in Duhbihur loc cit, even leaving aside that I am in any event bound by it. 37Subject to one matter which I address below, the Commission's view of the punishment imposed is to be formed simply on the basis of, first, whether the misconduct said to be the basis for the punishment, here dismissal, is made out; and second, if it is, whether the punishment imposed is appropriate. The primary test in the latter regard is whether it is appropriate to the misconduct made out, but regard may also be had by the decisionmaker to other relevant matters including the employee's record and length of service and punishments imposed on other employees in like or analogous circumstances. 38There is a preliminary consideration, which is whether the decisionmaker acted lawfully, which goes to whether the punishment was validly imposed. . The statutory basis for imposition of punishment 39The Transport Administration Act 1988 provides at s.68E that regulations may be made governing the conduct of disciplinary proceedings against STA employees. Pursuant to that regulation-making power, the range of punishments available to the decisionmaker in disciplinary proceedings in relation to employees such as the appellant was, at the time that the punishment was imposed on Dr von Senff, set out at Regulation 13 of the Transport Administration (Staff) Regulation 2012. ('the 2012 Regulation') 40That Regulation provides: 13 Punishments in disciplinary proceedings (1) The Chief Executive may impose any one or more of the following punishments in disciplinary proceedings against an STA officer: (a) a caution or reprimand, (b) a fine of an amount not exceeding $100, (c) reduction in position, rank or grade and pay, (d) suspension from duty without pay, (e) dismissal. (2) Instead of dismissing an STA officer, the Chief Executive may allow the officer to resign. (3) The Chief Executive may deduct a fine imposed on an STA officer from the officer's salary. (4) This Division is not to be construed as requiring the taking of disciplinary proceedings in order that the Chief Executive may dispense with the services of an STA employee. 41Regulation 16 goes on to provide for the procedure to be followed. Regulation 16 provides: 16 Procedure in disciplinary proceedings (1) An STA officer who is subject to disciplinary proceedings is entitled to be notified in writing by the Chief Executive of the particulars of the alleged behaviour giving rise to the proceedings. (2) A formal hearing is not required to be held before the person or body investigating the alleged behaviour, but the STA officer the subject of the proceedings may make representations to that person or body. Approach to determining appeal - lawfulness of decision 42As I have said, in my view the initial step in an appeal against a punishment is to determine whether the punishment imposed was lawful. That is because if the punishment was not lawfully imposed, that is, without jurisdiction, the appeal would necessarily in my view be successful on that ground without requiring investigation of the factual matters involved. 43The letter imposing punishment on Dr von Senff stated that the dismissal was imposed not under the 2012 Regulation but pursuant to Clause 28 of the Transport Administration (Staff) Regulation 2005. ('the 2005 Regulation') 44The 2005 Regulation had been repealed at the time that the punishment was issued and replaced with the 2012 Regulation. The regulation relating to punishments in the 2012 Regulation is not in the same terms as in the 2005 Regulation in that it provides for a different decisionmaker; under the 2012 Regulation the decisionmaker is the Chief Executive, while under the 2005 Regulation it is 'the STA'. 45This error was not a matter either party raised in proceedings. After the hearing had adjourned, I offered the parties the opportunity to make any submission about that matter that they wished in writing. 46The STA provided, unbidden, a further affidavit from Mr Carey. Dr von Senff had no opportunity to see, let alone test, that affidavit. It would result in a real procedural unfairness to the Applicant if I admitted that affidavit into evidence and I decline to do so. 47The STA also made short written submissions. Without relying on any authorities, their substance was that the error in invoking the 2005 Regulations was an administrative error that did not effect any disadvantage on the Applicant. 48The RBTU made no submission. 49This question must in my view be determined in the following manner. 50First, as a general principle, if the decisionmaker had at the time of making the decision to dismiss a power on which he could properly have relied, it does not invalidate the decision to dismiss that the wrong statutory power was invoked: Trigger v Australian Telecommunications Commission [1984] 6 IR 446; Re PSA and POA and Macquarie Generation [2004] NSWIRComm 11. That might be different if the subject of the decision was placed at a disadvantage by the invocation of the wrong Regulation, in that for example he was left unaware of rights of appeal that would have been drawn to his attention if the correct Regulation had been invoked, but that is not the case here. 51Second, and as to the specifics of this case, the question is whether the change appearing in the 2012 Regulation as to the decisionmaker meant that the he did not have the power under the Regulation operative at the time of the decision to effect the dismissal. 52The 2012 Regulation prescribes in terms that the Chief Executive has the power to impose punishment. The question then is whether the person purporting to impose the punishment on Dr von Senff was the Chief Executive or had authority, delegated by the Chief Executive, to impose that punishment. 53The punishment was imposed by Darren James Carey, General Manager, Newcastle Services, at the STA. Mr Carey gave evidence (Statement, paragraph 6) that he held such a delegation. That evidence was not challenged and I accept it. 54The punishment imposed was the punishment of dismissal. That was a punishment available to the Chief Executive under Regulation 13(1)(e) when misconduct has been found to occur. That the decision maker cited the wrong Regulation, in those circumstances, does not invalidate the decision. 55All that being so, the punishment was lawfully imposed. Approach to determining appeal - the allegation of misconduct 56Dr von Senff was, as set out in the Notice of Punishment, dismissed for misconduct. 57Having determined whether the imposition of punishment was lawful, the second question, in my view, in an appeal of this nature is to determine whether the misconduct which was cited as the basis for the punishment actually occurred. 58Misconduct is a serious matter, with potentially serious consequences. The obligation to make out that misconduct falls accordingly on the employer: Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-4; National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at [35]. 59And where, as here, the dismissal is said to be for misconduct, the respondent must make out the misconduct on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336; 'in a convincing way' as it has been expressed by the Full Commission: NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29]. 60That does not of course detract from the fact that a party seeking to persuade the Commission to allow an appeal against a disciplinary decision necessarily carries the onus of so persuading: Saini v Director-General, NSW Agriculture (Court of Appeal of NSW, 11 November 1996, unrep) per Cole JA, with whom Clarke JA and Maher JA agreed, at p 3. The asserted basis for the finding of misconduct 61The facts of the incident on 31 December 2012 were not relevantly in question, given Dr von Senff's ready admission of them and, subsequently, the video evidence. 62It follows that the STA's first contention towards establishing misconduct, that as a matter of fact Dr von Senff used a two way radio while operating a bus in service, is accepted. 63The second step is to establish whether the conduct that occurred was properly characterised as misconduct. 64The STA says in terms that on the basis of the admitted conduct Dr von Senff was dismissed for a breach of the State Transit Code of Conduct, and a breach of the State Transit Bus Operations Handbook: submissions, paragraph 2. 65Specifically, the STA contends that Dr von Senff's actions on 31 December 2012 were in contravention of 'the standing instruction to pull over to the side of the road and secure the bus prior to using the two way radio'. (submissions, para 19). 66The STA contends that Dr von Senff therefore breached a lawful and reasonable direction of his employer. 67The STA then contends, correctly in my view, that in assessing the actions of an employee in this context, it is necessary to consider whether he was acting 'reasonably, that is, with full knowledge of the circumstances'. (submissions, para 26). 68The STA further contends (submissions, para 48) that Dr von Senff breached safety standards by using the two way radio. 69In support of its central contention that Dr von Senff breached a lawful and reasonable instruction, the STA advanced the following matters. 70In 2000, and again in 2008, Dr von Senff was issued with an Employee folder that included the Code of Conduct and the Bus Operations Handbook. 71In 2005 Dr von Senff attended an information session on the prohibition of using mobile phones wile operating a bus. That prohibition, it was said, also extended to the STA two-way radio. The text used for the information session was placed in evidence. It contained, several pages into the text, a reference to the use of the installed two-way radios: it begins, 'By the way, this also applies to the use of the bus radio.' 72The STA pointed further to copies of the Transit Times, a newspaper distributed to employees, which set out, it is said, its policy regarding the sue of mobile phones and two way radios. 73In particular, copies of the Transit Times dated April 2005, the front page of which bore a large bold heading 'Illegal and dangerous' and a picture of a mobile phone, with a full front-page article including the warning that a bus operator found to have used a mobile hone while operating a bus will be issued a first and final warning. The article continues on page 3 of that edition. At the end it addresses two-way radios. It draws attention to the Bus Operations Handbook which states 'Bus operators should pull over to the side of the road if they are required to use the two-way radio system to speak to Radio control.' No mention is made in that article to discipline or punishment in case of drivers using the two way radio. 74In July 2005, the Transit Times carried an article on page 5 headed in very large letters 'Mobile Phone Policy'. It referred to the information sessions given to drivers to which I refer above and sets out the text that was used in those sessions, including the reference that begins 'By the way...' referred to above. 75A copy of the Transit Times from February 2008 carried on page 3 an article with in large letters the word 'Banned' and a picture of a mobile phone. At the end of that article reference is made to the two way radio. the article says 'Buses are to be parked and secure if it is necessary to use the two-way radio system to speak to the Radio Room. If a supervisor or the Radio Room receives a phone call from a Bus Operator on the mobile phone they are to make sure the bus is parked safely and the bus is secured.' It does not, however, impose the same requirement in relation to a call received on the two-way radio. 76The STA also pointed to documents headed Safety Alert which, it said, were distributed to drivers. 77The first of these dated August 2007 is concerned solely with two-way radios. It says in terms: Two way radios are only to be operated when the vehicle is stationary in a safe location and secured with the park brake on and neutral gear selected.' It goes on to say that only in the case of an emergency are Bus Operators exempt from this instruction. 78A further Safety Alert, issued in January 2012, provided what appears to be a different set of instructions to drivers. It says as follows: Bus operators must pull over to the side of the road and park (if reasonably practicable to do so) if they are required to use the two way radio system to speak to Network Control Centre. 79As a matter of simple English the words 'if reasonably practicable to do so' in the Safety Alert qualify the word 'must'. On its face, the Safety Alert gives a discretion to drivers when they are required to use the two-way radio as to whether in a particular circumstance it is reasonably practicable to pull over to the side of the road and park or not. 80This was the Safety Alert most recently issued on the subject at the time of the incident that led to Dr von Senff's dismissal. 81It is said for the STA that, notwithstanding the 2012 Safety Alert, bus operators were required to secure their bus - that is, pull over and stop the bus and apply the park brake - before speaking on the two way radio. 82The officer in charge of the radio was interviewed as to his conversation with Dr von Senff. The evidence was that he did not ask Dr von Senff to secure his bus or even whether he had secured his bus, although it was said elsewhere in evidence that operators in the radio room had been trained to do so: transcript, p 28. 83Dr von Senff's case was that he was aware that there was a general standing rule that drivers were not to use the two-way radio in traffic, but that there were as he understood it some circumstances in which it was permitted. 84His evidence in this regard bears setting out. In his statement to the commission Dr von Senff said, of the rule that the two way radio is only to be used when the bus is secured: "While I was aware that this was a rule it was still my belief that latitude was afforded to drivers who use the radio while driving when it was the most practical option." 85In his oral evidence he said, in relation to that evidence, this: Q. What latitude did you expect to be given there? A. The latitude I expected was that as I used it to notify management it would be irrelevant whether it was a policy or not. The safety - it was not a safety issue. The message I gave through had to be communicated to management irrespectively of what happened. (transcript, p 57) 86Dr von Senff was, of course, correct in saying that he was obliged to communicate the message that he was running late to the control room. it was, under the terms of part 7 of the Bus Operations Handbook, compulsory for him to do so. As Mr Lambert said in evidence, that is to be done by the two-way radio. 87The question is whether he was obliged to pull over and secure his bus to make that communication. 88Further to his evidence that there were circumstances in which drivers were given latitude to operate the two way radio while driving, Dr von Senff gave evidence that he was unaware of the rule that use of the two way radio while driving would lead to dismissal. He said he first understood this when he was told so by Mr Lambert on 11 January 2013. 89Dr von Senff struck me as a witness of truth. So, I should add in fairness, did each of the STA officers who gave evidence. Their evidence was in my view frank and candid. Analysis of the prohibition on the use of devices 90It is apparent that the STA has taken very substantial, and in my view more than adequate, steps to convey to bus drivers that the use of mobile phones while driving a bus is absolutely prohibited. Indeed, in my view no driver who used a mobile phone while driving a bus could, barring quite extraordinary circumstances, cavil with the imposition of the penalty of dismissal. 91That does not, however, necessarily determine this matter on its particular facts. 92First, the STA's communication with drivers about the use of the two-way radio while controlling a bus has been, both in the lecture given in 2005 and in the articles in the Transit Times, effectively buried in articles which are advanced as publications and alerts on the use of mobile phones. Dr von Senff gave evidence that he does not own a mobile phone and accordingly did not consider those publications, as they had no application to him as a person without a phone, and accordingly did not see the material on the two way radio appearing within the text of those publications. 93Secondly, and in my view relevantly, there is the matter of the Safety Alert issued in January 2012 which was in force at the time of the incident. 94Remembering that Dr von Senff's case was that he knew of the standing order not to use the radio, but believed that there was latitude for drivers to do so in some cases, the text of the Alert bears setting out again. 95Referring expressly to the Bus Operations Handbook at section 4.3.12.5, and asserting that the handbook so provides, the Safety Alert says as follows: Bus operators must pull over to the side of the road and park (if reasonably practicable to do so) if they are required to use the two way radio system to speak to Network Control Centre. 96It was advanced on Dr Senff's behalf that his view that he had committed no misconduct was justified because, in good part, of this instruction. He had used the radio to call in, which is not disputed, and in his view it was not reasonably practicable to pull over because he was running so late. 97Mr Michael Lambert, a staff co-ordinator at Newcastle Buses and Ferries, gave evidence about this matter. 98He agreed that the 2005 talk and publication headed Mobile Phone Policy, which he said was the training Dr von Senff would have had on the issue, did not treat mobile phones and two way radios the same way but gave the former far more prominence than the latter. (tpt, p 22) 99He said that the issue of using two way radios was not, in the Transit Times articles to which the Commission was taken, given the same prominence or importance as the issue of using mobile phones (transcript, p 23) 100He also gave evidence that at the time bus drivers are given the Bus Operations Handbook they are given no training in that Handbook, but rather are expected rather to read it in their own time (transcript, p 16) 101He was then asked about the January 2012 Safety Alert. He gave the following evidence: (transcript, p 28) Q. If I understood correctly and please do correct me if I'm wrong, if I understood your evidence correctly, you were saying in relation to this point here that was discussed where it says the bus operators must pull over to the side of the road and park if reasonably practicable to do so if they are required to use the two-way radio system, if I understood your evidence correctly, you said that that meant that bus operators must pull over to the side unless it was some kind of emergency situation, is that correct? A. That's what I believed, yes. Q. But if we go on, isn't it the case that this instruction does not indicate what bus drivers are meant to do in an emergency because the instruction expressly says that bus operators are exempt from the instruction in cases of emergency, isn't that the case? A. Yes, I see what you're saying, yes. Q. So where it says bus operators must pull over to the side of the road and park if reasonably practicable to do so, this isn't a reference to what to do in the case of an emergency because in fact the safety alert is not applied in the case of an emergency, that's correct isn't it? A. Yes, that would make sense, yes. 102That point was further explored in the evidence of Mr Darren Carey, General Manager at the Newcastle Buses and Ferries Depot. 103He was asked about the January 2012 Safety Alert and gave this evidence: (transcript, p 39-40) Q. I'd like to take you now to tab 18 behind that bundle of documents in front of you, which is another safety alert. You'll see a bold paragraph in the middle of the page where it says: "Bus operators must pull over to the side of the road and park (if reasonably practicable to do so) if they are required to use the twoway radio system to speak to network control centre." Are you aware under what sort of circumstances would a bus operator be required to speak to the network control centre? A. There could be many and varied circumstances a bus operator would need to speak to network control. Gee. Virtually anything. Many, many and varied, Mr Edghill. Q. The fact that the bus is running late, that would be one of the things that they would need to network control about? A. If the bus was running late in excess of ten minutes. Q. So you agree if a bus driver believes he's running in excess of ten minutes late the bus driver is required to contact the network control centre? A. Yes he is. Q. And this instruction which is issued in January 2012, this instruction actually says "Bus operators must pull over to the side of the road and park if reasonably practicable to do so if they are required to use the two-way radio system to speak to network control centre"? A. Mm-hmm. Q. So what this says to employees is and please say if you disagree, what this says to employees is there's no absolute ban on driving and using the two-way radio system but it's reasonably practicable for you to pull over, then that's what you need to do. But if it's not reasonably practicable for you to pull over, then it's okay for you to use the two-way radio system to speak to network control. That's what that says isn't it? A. That's what that says. Q. Right. This allowance if I can put it that way for bus operators to use the two-way radio, no such allowance exists for the use of the mobile phone. There's no rule anywhere in State Transit is there that says if you want to use the mobile phone whilst driving a bus, you need to pull over to the side of the road if practicable to do so. That's not the case. There's a flat out ban. You can't use a mobile phone while driving a bus, that's correct isn't it? A. Yes it is. Q. So in that sense, on the two documents that we've looked at, the communication of the prohibition on the use a two-way radio is quite different to the communication of the prohibition on the use a mobile to employees, isn't it? A. The communication of it from what you've pointed out is, yes clearly. 104Dr von Senff, giving evidence in cross-examination about his using the two-way radio, said this: Q. Do you agree that the correct procedure was to pull over to the side of the road and secure the bus before using the two-way radio? A. Yes. Q. And you were aware of this procedure? A. Yes. Q. Is there any reason why you didn't pull over to the side of the road? A. Yes. Q. What was that reason? A. The reason was because I was running some 23 minutes behind time and it was more important for me to inform radio room of the fact that I was running 23 minutes behind, that's point number 1. And point number 2, it would allow radio room to notify passengers or the Transport Line to advise other passengers and buses if necessary.(transcript, p 46) 105He then gave this evidence: Q. Do you believe if it was practical for you to pull over to the side of road at the time that you made the-- A. No, not when you're running that late. Q. Was there any other incumbent to stop you from pulling over to the side of the road? A. Except I was running late. I was running very late and for that reason I didn't pull over. I said it in my statement. (transcript, p 47) 106He then gave this further evidence: Q. How long do you think it would have taken for you to pull over to the side of the road to relay your message? A. It would have depended on whether or whether not radio room answers in five seconds or seven seconds, god knows what or one hour as it has happened before. Q. Is there any reason why you couldn't have pulled over to the side of the road at the time that the call came through which may have delayed you for a short time before you picked up the handset? A. Yes, true. It's quite easy once you're 23 minutes behind time, it doesn't matter how much you try, you're still going to be running behind. However my decision at that point was I answer the telephone and keep going for the one simple reason that was the first bus stop on the whole trip that was there was no persons on there. (transcript, p 49) 107That evidence was consistent with the view he expressed in his statement that he believed there were circumstances in which drivers had latitude in the sue of the two way radio. As I have said above, I accepted that Dr von Senff was giving truthful evidence. 108Ignorance of an employer's policies is not an excuse for breaching them, where an employer has communicated the policies to the employee concerned and it is through the employee's negligence that they have not been understood. 109But here Dr von Senff says that, while he knew - which he admitted readily, indeed advanced it in his own evidence in chief - that there was a standing order that drivers not use two-way radios when in control of a bus, he believed that there were nevertheless circumstances when this was permitted. 110In my view he was entitled to so believe. 111The January 2012 Safety Alert gave in my view precisely that message to drivers. The STA's witnesses effectively conceded as much in their evidence, and it is in any event plain of the face of the document that that is so. The Alert says that the Bus Operations Handbook provides that a driver when using the two way radio must pull over if reasonably practicable to do so. This is evidently not an exception made for emergencies; that is deal with under a discrete heading on the circular. 112It was compulsory to report in by the two-way radio if a bus was more than 10 minutes late, as Mr Carey correctly said, and that is what Dr von Senff did. 113In my view he did that in good faith, believing it was permitted, and on the facts he was entitled to believe that it was permitted. 114Submissions on Dr von Senff's behalf summarised the issue with economy: The evidence that we heard from Dr Von Senff was that he believed it was not reasonably practicable to do so. There's no guidance within this safety alert with regard to what "reasonably practicable" was intended to mean. What Dr Von Senff decided was a reasonable cause in the situation he found himself in was, he was running late, to pull over to the side of the road, as a matter of common sense, would have caused him to run later. His evidence was that if he pulled over to the side of the road and pressed the button and waited there was no telling how long it could have taken for him to get a response, and so that would have caused him to fall even further behind. It was on this basis that Dr Von Senff - and we see this from his evidence - decided that it was reasonable for him to use the two-way radio. STA says that that is breach. It's incumbent upon them to demonstrate that they have communicated to employees that that is a breach. And this document that is in front of us here does not satisfy that burden. (transcript, p 73) In my view that correctly characterises the matter. 115For completeness I add that also in evidence was a Safety Alert dated August 2012 which set out in terms that the use of electronic communication devices (said to be inclusive of hand-held mobile phones and two way radios) while driving any State Transit vehicle will result in instant dismissal, but then went on to say that the use of two-way radios whilst driving is permitted in State Transit light vehicles. 116Much was made of this apparent contradiction in the terms of the Safety Alert. Witnesses for the STA agreed that it was on its face inconsistent, although Mr Carey offered an explanation of why a difference was seen between light STA vehicles and heavy vehicles. Ultimately, however, while I agree that on its face the Alert appears inconsistent, I do not see that it had any influence on Dr von Senff's conduct. He did not say that it did. That instruction has had no bearing on my decision in this matter. Procedural fairness issues 117It is not suggested that the investigation itself lacked procedural fairness. Some complaint, however, is made that Dr von Senff was simply told that the decision upon penalty was dismissal, that only after that was he invited to comment on penalty, and that he was given only that moment, or if he wished until the next day, to respond as to penalty. As a matter of fact he declined to do so. 118In my view a better process would have been to advise Dr von Senff - and this would apply to any employee - that the preliminary view was that dismissal was the appropriate punishment, and give a reasonable time for the employee, perhaps with the assistance of his union, to respond in writing. The matter as it was presented to Dr von Senff had something of the appearance, to a lay person at least, of a foregone conclusion. It is perhaps unsurprising that he formed the view that a submission would have no value. The approach I have suggested above would have been a better one. 119However, I do not form the view that this approach, unsatisfactory to a degree as it was, determined the matter. It is sufficiently clear that the approach the employer took to the matter would not in any event have been swayed by any submission that Dr von Senff might have made, in the context of the submission from the STA that it has a 'zero tolerance' policy to the use of mobile phones and two-way radios while a bus is in motion. 120Questions of procedural fairness have had no bearing on the ultimate determination of this matter. Was there misconduct committed? 121I have referred above to the fact that the onus to make out misconduct at a satisfactory level falls on the party asserting it, here the STA. I accept that the STA has a policy which bars the use of the two way radio while a driver is driving a bus. But it had not communicated that policy in those terms to Dr von Senff. What it had communicated to him, in particular by the most recent Safety Alert, which he was told reflected the provisions of the Bus Operations Handbook, was that a driver might use the radio for a required purpose while driving a bus if it was not reasonably practicable to pull over. 122It follows from that that on the particular facts of this matter Dr von Senff did not commit misconduct. The facts of what he did are proven, but he did not intend to breach an STA policy; more, in my view it was reasonable for him to believe that he was complying with an STA policy that had been given to him in writing. 123It must be pointed out that Dr von Senff was in a different position to most persons in Sydney and I am prepared to assume most if not all other STA employees in that he did not have a mobile phone. I accepted his evidence that he had not therefore paid attention to documents headed 'Mobile phone policy' in which references to the use of the two-way radio were to be found well on in the body of the text. While the 2012 Safety Alert provided a recent and authoritative basis for him to act as he did, there was no basis for him even to question it in the light of other, earlier pronouncements to which his attention, for reason that they appeared to address themselves only to mobile phones, had not been expressly drawn. 124The proposition that regardless of any policy Dr von Senff's actions were unsafe, in that, as it was put to him in cross-examination by Mr McLean, he had to take his eyes off the road for a moment, does not hold good. Dr von Senff said that his driving was not unsafe for that reason, because the short time that he had to look away from the road to press the button and pick up the radio were no more than the period of time that a properly trained bus driver looks away from the road - every seven seconds - to check his mirrors. 125That he took his hand off the wheel to hold the two way radio cannot be a safety matter, as the CCTV footage clearly showed him driving with one hand on his lap at various times before the radio call, and no complaint was made about that as a safety matter by the STA. 126And the proposition that to speak on the radio, including both the requirement to look briefly behind him and to take one hand off the wheel while driving, is unsafe driving is defeated by the fact of the Safety Alert, which as noted provides that drivers are to pull over if practicable. That necessarily, as has been set out above, contemplates that there will be circumstances where a driver uses the two way radio without pulling over and securing the bus. A Safety Alert in terms allowing that to occur, which in my view it did, simply would not have been issued by the STA if it regarded that conduct as unsafe. 127In sum, I am not able to find that Dr von Senff committed misconduct. Misconduct requires an element of wilfulness or at least knowledge. I accept the submission from the STA that that in assessing the actions of an employee in this context, it is necessary to consider whether he was acting 'reasonably, that is, with full knowledge of the circumstances'. (submissions, para 26). 128As I have set out above, the disciplinary regime applying to Dr von Senff is punitive, not protective in nature, so the Commission is not required to consider, in its assessment of the punishment imposed on Dr von Senff, and the exercise of the Commission's own jurisdiction in an appeal de novo, any question as to whether it is in the public interest for the appellant to be allowed to continue as an employee of the STA. What is being assessed is, first, whether there was misconduct. I have found that there was not. 129It follows from the above that, as Dr von Senff has not committed misconduct, there is no warrant for any punishment to be imposed on him. It cannot be otherwise. Either he knowingly breached a lawful requirement of his employer or he did not. It is clear on the evidence that he did not, but rather acted in a way that he reasonably, on what he had seen in the STA's publications, understood was a 'latitude' to make his compulsory call-in to the radio room while in control of the bus. 130This matter can readily be distinguished factually from the situation which arose in RTBU (on behalf of Kelly v STA NSW [2007 NSWIRComm 261, in which a driver was dismissed for using a two way radio and the Commission did not intervene in the decision to dismiss. In that case, the driver drove for a considerable time - through two busy intersections and in and out of a bus stop - while speaking on the two way radio despite being instructed by the control room to secure her bus. The Commission held her conduct to be 'a conscious and intentional course of conduct in breach of the respondent's clear and unambiguous direction.' It is apparent, without stating it over again, that that was not the case here on a range of bases. The 2012 Safety Alert had not, of course, been issued at the time of the facts of that matter. 131I was invited to have regard to opinion evidence given in Kelly, of a kind not brought in this case, and apply it to this case. That I decline to do. 132For completeness, I note that Dr von Senff's disciplinary record was described by Mr Carey as 'below average'. That is not an unfair assessment. There had been warnings and suspensions on previous occasions. Had I found that Dr von Senff had committed misconduct, that previous disciplinary record would have been relevant. As I have found that he did not, it is not. 133It follows from the above that the appeal will be upheld and the punishment of dismissal imposed on Dr von Senff set aside. 134As there was no misconduct, there is no basis for any other punishment to be imposed on Dr von Senff. 135I accordingly make the following orders: Orders 136The appeal is upheld. 137The punishment of dismissal is set aside. 138Dr von Senff is to be paid a sum equivalent to the sum he would have earned between 30 January 2013 and the date of this decision. 139Dr von Senff's service with the STA will be regarded as continuous from 30 January to the date of this decision. PETER NEWALL 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: 22 August 2013