Industrial Relations Commission New South Wales Medium Neutral Citation: Pizarro v State Transit Authority [2014] NSWIRComm 1019 Hearing dates: 4 July 2014 Decision date: 18 July 2014 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: 1. The appeal is upheld, but only to the extent set out at Orders 2 and 3 below. 2. The punishment of dismissal is set aside. 3. In the place of the punishment of dismissal, the following punishment is substituted: Mr Pizarro is to be allowed to resign, provided that he gives that resignation within 7 days of the date of this decision. If a resignation is not provided within that time by Mr Pizarro, these three Orders lapse and the punishment of dismissal stands. Catchwords: Public sector disciplinary appeal - dismissal - bus operator - attending to personal business on work time - balance of important personal business and obligations to employer - obligations to employer have primacy in work time - allegation of misleading employer - serious allegations not made out by inference - consideration of punishment - appeal upheld but only as to substitute permission to resign for dismissal Legislation Cited: Industrial Relations Act 1996 ss.89, 98, 100C, 100D Transport Administration (Staff) Regulation 2012 r 13 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 126 Dunn v Waverley Council [2013] NSWIRComm 1031 Feldman v State Transit Authority [2014] NSWIRComm 1017 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-4 Saini v Director-General, NSW Agriculture (Court of Appeal of NSW, 11 November 1996, unrep). Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (No 2) [2014] NSWIRComm 20 von Senff v State Transit Authority [2013] NSWIRComm 1013 Category: Principal judgment Parties: Mr O Pizarro (appellant) State Transit Authority NSW (Respondent) Representation: Mr O Pizarro - unrepresented appellant Mr S McLean - respondent File Number(s): IRC 18 of 2014 DECISION 1This is a Public Sector Disciplinary Appeal brought pursuant to s.98 of the Industrial Relations Act 1996 ('the Act'). 2Mr Ottavio Pizarro 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. 3Mr Pizarro was dismissed from his employment on 13 January 2014. 4He appealed within the 28 day period prescribed by subs.100B(2) of the Act and his appeal came before the Commission for conciliation on 21 February 2014. That conciliation, in which Mr Pizarro was represented by his union, was unsuccessful. 5The matter only came before the Commission for arbitration, however, on 4 July 2014. This was not the fault of either party. It is, however, unsatisfactory. The Parliament has equipped the Commission, pursuant to both s.89 and s.100C of the Act, with powers to restore the employment relationship after a dismissal in circumstances where that is warranted. That power loses a great deal of its effectiveness if applications cannot be dealt with quickly. 6 That is because the passage of many months after a dismissal of itself influences the exercise of the powers vested in the Commission. Such a period of delay creates a real stumbling-block to the practicality of any reinstatement, which is a statutory test pursuant to s.89 of the Act and is a matter properly to be considered in dealing with an appeal against a dismissal brought under s.98 of the Act. 7An inability to hear matters in a timely way also prevents the Commission carrying out the express obligation imposed on it by s.161 of the Act to act quickly: As a Full Bench of the Commission held in Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (No 2) [2014] NSWIRComm 20, 'I[i]t is the essence of the Commission's jurisprudence and practice, as an industrial tribunal, to act quickly and without delay.' (at [27]) The allegations 8Mr Pizarro was dismissed after four allegations advanced by the STA were found proven against him. Those allegations all arose from a course of conduct adopted by Mr Pizarro on one day, 26 September 2013. The allegations can be summarised as follows. 9Allegation 1 was that Mr Pizarro deviated from his rostered work without authority, resulting in a bus service running 35 minutes late. 10Allegation 2 was that Mr Pizarro misused State Transit resources when a bus was deviated from its scheduled route to allow him to conduct personal business. 11Allegation 3 was that Mr Pizarro failed to advise the Network Control Centre of a late running service. 12Allegation 4 was that Mr Pizarro provided false and misleading information to a supervisor regarding the late running service. The Commission's powers in relation to a disciplinary appeal 13Before turning to the facts of the matter I address in short compass the Commission's powers in relation to an appeal of this kind. Those powers lie in ss.100C and 100D of the Act. 14I do not set the statutory provisions out here, but it is clear 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. 15The Commission is not constrained merely to accept or reject the initial decision. The Commission may impose no punishment, or another punishment altogether, including a harsher penalty than that which the initial decisionmaker imposed. 16The Commission's view of the punishment imposed is to be formed on the basis of, first, whether the misconduct said to be the basis for the punishment is made out; and second, if the misconduct is found to have occurred, whether the punishment imposed is appropriate. 17Appropriate means proportionate to the level of misconduct found to have occurred, but consideration should also be given to other relevant matters including the employee's record and length of service. In my view the tribunal should, in cases of dismissal, have regard to the impact of that dismissal on an employee's future prospects of employment. Assessment of punishments 18In my view the appropriateness of the punishment is also necessarily to be assessed having regard to the scale of punishments that the Parliament has seen fit to provide by regulation. 19The statutory basis for the punishment is set out in regulation 13 of the Transport Administration (Staff) Regulation 2012. There are five available punishments to the decision-maker. The most extreme is dismissal. Pursuant to regulation 13(2), the Chief Executive may, instead of dismissing an officer, allow the officer to resign. 20A disciplinary sanction imposed on an employee such as Mr Pizarro is simply punitive in nature, not protective of the general public: Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 126 at [106]-[107]; von Senff v State Transit Authority [2013] NSWIRComm 1013. 21Accordingly there is no requirement for the Commission to consider whether it is in the public interest for the appellant to be allowed to continue as an employee of the STA. Facts 22The facts of the incident which led to Mr Pizarro's dismissal all arose, as I say above, in the course of one day. 23On the evidence of both Mr Pizarro and the STA witnesses those facts can be summarised as follows. 24Mr Pizarro is married and has a step-daughter, Miss Andrea Gonzalez Bravo, who at the time of the matters here dealt with was resident in Australia on a student visa. As the head of his household and as sponsor of Miss Bravo's visa Mr Pizarro understandably regarded himself as responsible for his step-daughter. 25On 26 September 2013 Mr Pizarro was carrying out driving duties based out of the STA's Waverley depot. He was rostered to work a broken shift. The hours he was required to work were from 6:56 am to 11:40 am, and then from 2:34 pm to 6:30 pm. 26During the course of the morning he received a call from Miss Bravo. He did not answer her initial call, received at 10 am, as he was driving. He rang Miss Bravo back during the morning. She told him that the fee for a course of study she was undertaking had to be paid that day. 27Mr Pizarro completed the first part of his broken shift at 1:00 pm. 28There was then a second call between Mr Pizarro and Miss Bravo. The time of that call is harder to pin down. Mr Pizarro's initial statement to the Commission put that call at 1:00; as did Miss Bravo's statement, but in oral evidence he expressed the view that it was perhaps nearer 1:30. The STA did not require Mr Pizarro to produce his phone records. I do not have to resolve this minor conflict in the evidence. 29In that second call his step-daughter told Mr Pizarro that she had been unable to carry out the transaction to pay the course fee and he would have to do it in person. On her evidence, she told him that a breach of her visa conditions could lead to her visa being cancelled. On Mr Pizarro's evidence he understood this to mean that she could be deported. 30Mr Pizarro decided that he would indeed have to make the payment himself. The payment could only, I accept, be made in the CBD. 31Mr Pizarro then attended the Staff Supervisor's office at Waverley depot. His evidence was that his supervisor Ms Kikis was not there and he could not find another supervisor. 32He then attended the Depot Inspector's office. On Mr Pizarro's evidence to the Commission, nobody could be found in the office to deal with a request for a 'release on request', that is, permission to be absent from duty, so as to carry out the transaction. However, on the evidence of the interviews he gave to the STA, it is clear that Mr Pizarro did see a duty officer present at the depot between 1:00 and 2:30 that day but chose not to ask for a release from duty. 33Mr Pizarro remained at Waverley depot until 2:30 pm, when he resumed work. He drove a bus on Route 314 which went to Bronte and then to Bondi Junction interchange. He was next due to drive a bus leaving Spring St in the CBD at 5:21 pm. 34Before leaving the Waverley depot on route 314, though, he obtained permission from a yard supervisor to drive that bus direct from Bondi Junction to the city. That is called a 'run as' and is a procedure accepted by the STA. Mr Pizarro's purpose in asking to do a 'run as', as he agreed in his interview with the STA, was to obtain an additional 20 minutes in the CBD. 35Mr Pizarro carried out the 'run as' and arrived in the CBD at 4:50 pm. He parked the bus in Sussex St and went to a location in the QVB to carry out the payment of his step-daughter's fees. Due to a series of complications, he was not able to make the payment immediately by credit card as he had intended but had to telephone his bank and then effect a bank transfer of the funds. There is no doubt that he did ultimately carry out the transaction; the bank records show that he did so at 5:31 pm Sydney time. 36Having done so he proceeded to where he had parked his bus. From the STA records, which were not called into question, Mr Pizarro left Sussex St in the bus at 5:42. It took 14 minutes to get to Spring St. He began the run from Spring St at 5:56, 35 minutes late. There is no record of his notifying the control centre that he was running late, a point to which I will return. 37Mr Pizarro gave evidence that something else happened between completing the transaction at 5:31 and leaving Sussex St in his bus at 5:42. He gave evidence that he went to a toilet block behind the Town Hall and there accidentally fouled his clothing. He washed and dried his underclothing at the toilet block before attending the bus. 38It is difficult to see how this could all have been done between 5:31, when the bank transfer took place, and 5:42, when the bus left Sussex St, and the respondent invited me to find that Mr Pizarro was simply not telling the truth about this incident. I do not make that finding, as the evidence is not sufficiently clear to allow it; I accept Mr Pizarro's account of that sequence of events. 39The next day, 27 September, Mr Pizarro approached his acting duty manager, Mr Shields. He told him - volunteering the information, as nothing had been said to him at that time - that he had been late leaving Spring St the evening before. He told Mr Shields that he had paid a bill in the city and then that he had encountered unforeseen heavy traffic going from Sussex St to Spring St. 40Mr Shields reported this matter and that led to a process which resulted in the four allegations summarised above being put to Mr Pizarro on 10 October 2013. Procedural steps 41Mr Pizarro was interviewed on 25 October with his union delegate present. 42The matter was then investigated and it was held that all four of the allegations outlined in the Form E1 were proven. The Investigating Officer submitted the Investigation Report to the Reviewing Officer. 43On 6 November 2013 the Reviewing Officer, Mr Niahos, wrote to Mr Pizarro advising that he wished to meet with him. Ultimately that interview took place on 29 November 2013. Mr Pizarro was provided with the transcript. 44On 5 January 2014 the Reviewing Officer wrote to Mr Pizarro telling him that he had found the allegations proven and was considering dismissal. Mr Pizarro was invited to make a submission about punishment. That was done both by way of meeting on 8 January and by written submissions provided by Mr Pizarro on 10 January 2014. 45The Reviewing Officer considered these matters and determined that Mr Pizarro be dismissed. He issued that decision in writing on 13 January 2014. It is that decision which is under appeal. Approach to determining appeal - the allegation of misconduct 46Mr Pizarro was, as set out in the Notice of Punishment, dismissed for misconduct. 47Misconduct 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. 48And where a 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]. 49That does not detract from the fact that a party seeking to persuade the Commission to allow an appeal against a disciplinary decision carries the onus of so persuading: Saini v Director-General, NSW Agriculture (Court of Appeal of NSW, 11 November 1996, unrep). Consideration of the factual assertions of misconduct 50Allegations 1 and 2, that Mr Pizarro deviated from his rostered work to conduct personal business, resulting in a service being 35 minutes late, are clearly made out on the evidence. There is no challenge to the records of the bus's movements. Mr Pizarro when interviewed on 25 October 2013 conceded that the primary reason that he was late in taking out the 5:21 from Spring St was that he paid a personal bill. 51In the interview with Mr Niahos on 29 November, Mr Pizarro is asked about the intentions he formed before leaving Waverley Depot. He says this: NIAHOS Was there a duty officer on duty? PIZARRO Yes NIAHOS Did you make any attempt to see to the duty officer to tell him of your personal problem? PIZARRO No. NIAHOS Why didn't you? PIZARRO Because I can...I can make it on time. NIAHOS So, you took the assumption that you might be able to pay the bill on time? PIZARRO Yes 52Later in that interview this exchange occurred: NIAHOS OK what I'm trying to say to you sir is ... did you have the opportunity prior to going out on the road to talk to the Duty Officer? PIZARRO Yes. NIAHOS Did you have the opportunity to advise them of making this payment and to seek and adjustment? PIZARRO I didn't see the need to do so. NIAHOS You didn't see the need to do so. PIZARRO Because I got time here to, twenty minutes, I'll be able to do it. I misjudged that I took longer. 53As the facts disclose Mr Pizarro was significantly late in beginning the service for reason that he was paying the account, and the service departed 35 minutes late for that reason. Accordingly, on Mr Pizarro's own evidence the substance of the first two allegations is made out. 54I now turn to the balance of the allegations. 55Allegation 3 was that Mr Pizarro did not contact the Network Control Centre to advise of his late departure from Spring Street. 56There is no doubt on the evidence that Mr Pizarro knew and understood he had an obligation to contact the NCC if running more than 10 minutes late. Mr Pizarro was a bus driver of over 8 years' experience. He knew the ropes. Further, there is no doubt that it is a legitimate requirement by the STA that drivers do contact the NCC in those circumstances. 57In his evidence before the Commission Mr Pizarro said this, in relation to his late starting out to go to Spring St: 'I pressed the bell to call the NCC nobody answered, why was not answered? I do not know, I do not have control of it. This issue is difficult for arguments from both sides.' 58In his oral evidence Mr Pizarro was adamant that he had pressed the button to contact the NCC and that nobody answered. 59However, in the 29 November interview with Mr Niahos Mr Pizarro said this: NIAHOS You didn't contact NCC/Radio Room of your situation? PIZARRO No. 60Further, in his interview with Mr Sciarrone on 25 October 2013, Mr Pizarro volunteered that he had lost some time before starting the bus toward Spring St because he had to go to the toilet. He gave an account of soiling his underwear, and said it was embarrassing and humiliating to have to relate it to Mr Sciarrone. 61He then added, 'This is one of the reasons I did not contact Radio Room as they would have asked where I lost time.' 62There is no record of any contact with the NCC by Mr Pizarro on that day. Mr Pizarro's account given in the interviews makes it clear that he did not make that contact and that he deliberately chose not to make that contact. 63Faced with that evidence, I am unable to accept Mr Pizarro's more recent assertion that he attempted to contact the NCC. 64I make allowance, as I did throughout the hearing and throughout my consideration of this decision, that English is not Mr Pizarro's first language. I do not see, however, that the questions and answers in the interviews I have set out above were anything but clear and well understood on both sides. 65Allegation 3 is made out. Mr Pizarro did not call or attempt to call the NCC. 66The fourth allegation, a serious one, is that Mr Pizarro provided false and misleading information to his supervisor in his account of the events of 26 September. 67I note first that Mr Pizarro went to his supervisor, Mr Shields, and raised the matter of his lateness before anything was said to him. I also note that he told Mr Shields that he paid a bill; he did not try to conceal that matter. He then added that he encountered unforeseen traffic getting to Spring Street. 68On the evidence that was not so; the travel time involved was 14 minutes which was, on the uncontested evidence, no longer than what was to be expected. 69The inference is available that Mr Pizarro sought to deflect responsibility for his lateness onto traffic problems when that was not the case. 70However, serious misconduct is not to be made out by inferences. It needs to be made out in a convincing way, as I set out above. 71Given that Mr Shields' email note of what was said was made some days after the conversation he had with Mr Pizarro, given that Mr Pizarro referred of his own volition to paying the bill, and given that Mr Shields was not interviewed by Mr Sciarrone, the investigating officer, to obtain a direct first hand account of what Mr Shields remembered Mr Pizarro saying, I cannot come to the view that Mr Pizarro committed the act of serious misconduct of deliberately misleading Mr Shields, his supervisor, as alleged. I do not find Allegation 4 made out. Procedural fairness issues 72I have analysed the evidence going to the process undertaken by the STA. In my view Mr Pizarro was given every opportunity to make out his case. Mr Pizarro argued that he had been denied a valid process. I cannot find that there was any invalidity or unfairness in the process. Summary 73It is clear that Mr Pizarro acted out of a sense of obligation to assist his step-daughter. He did so, moreover, in circumstances where he was anxious that she comply with her visa obligations. As a migrant himself Mr Pizarro knew the importance of fulfilling visa obligations. While it is not of course the case that Miss Bravo would have been deported for a day's late payment of her course fees, I accept that Mr Pizarro was genuinely concerned that her visa would expire and believed that he had to make the payment that day. 74A man cannot be criticised for carrying out family obligations; indeed, Mr Pizarro was bound to do what he could to assist his step-daughter. To decline to do so would have been unworthy of him as head of his family. 75 However, if a man chooses to put the way he deals with his family obligations ahead of his clear obligations to his employer, he must understand that his employer does not have to accept that: Dunn v Waverley Council [2013] NSWIRComm 1031. It is not open to an employee to choose to use his employer's time to carry out his personal business. 76And it was a choice. I accept that Mr Pizarro had family obligations. He may not have had any choice about dealing with them, but he could readily have dealt with them without impinging on his duties to his employer. It is clear from his own accounts given in the two interviews in which he participated, a month apart, which I set out above, that he knew that there was a duty officer present at Waverley Depot and that he saw that officer. He knew that relief requests could be made; he had recently successfully made such a request. He chose not to arrange to be taken off duty. 77Rather, he found the time to arrange with the shed driver to do a 'run as' into the CBD. He did that because he thought he could get away with attending to his own business, the payment of the account, on his employer's time without failing to adhere to his timetable. As it happened, the payment of the bill became complicated and the result was that Mr Pizarro was 35 minutes late in operating the bus service he was being paid to operate. 78The fault is not only in the lateness, although that was a product of Mr Pizarro's decision, but the decision itself to use his employer's time and resources to carry out his personal business. 79Mr Pizarro in his submissions urged me to find that there were mitigating circumstances for his conduct, in that he had serious family responsibilities. As I have said above, I accept that a man's family responsibilities are a serious matter. I take them into account. I cannot accept them as mitigating circumstances where there was a clear choice to do other than neglect his obligations to his employer. 80Mr Pizarro also misconducted himself in failing to contact the NCC. It is clear on his own accounts to the STA that he knew he was obliged to do so and he chose not to do so. He has not assisted himself by later giving the Commission a contrary account. 81Mr Pizarro was an experienced driver who had been trained in his duties and responsibilities. He had demonstrated through a competency assessment process that he had reached the required level of competency of a Bus Operator. That includes knowing the rules. Appropriateness of punishment 82I have found that three of the four allegations of misconduct have been made out, although I have found the most serious allegation, that of deliberately misleading his employer, not made out. But even without that fourth, most serious, allegation, it is the case that Mr Pizarro deliberately chose to put family responsibilities ahead of his obligations to his employer when it was not necessary for him to do so. In my view Mr Pizarro did misconduct himself. 83There is no doubt, as Stanton C recently held in Feldman v State Transit Authority [2014] NSWIRComm 1017, that the STA's credibility and reputation as a provider of public transport in New South Wales requires employees to comply with all lawful directions including the Code of Conduct and the Bus Operator's Handbook, and the STA is entitled to expect compliance with its express workplace policies and procedures. 84I turn to the question of the appropriateness of the punishment. I have regard to the fact that Mr Pizarro was a bus driver of over 8 years' experience with a generally good record. That weighs in his favour, but it also means that he knew the ropes. 85I have had regard to the impact of the punishment of dismissal on Mr Pizarro. I have had regard to the fact that he is his family's breadwinner. Those matters are relevant but they do not override the obligations of an employee to his employer and they do not permit the condonation of misconduct. 86Mr Pizarro has erred. In the circumstances, while that left the STA entitled to dismiss him, that error should not in my view destroy his future employment prospects. The appeal will be upheld, but only to the extent that for the punishment of dismissal the Commission substitutes the punishment, available under the Regulation, that Mr Pizarro be allowed to resign in lieu of dismissal. 87I accordingly make the following orders: Orders 1. The appeal is upheld, but only to the extent set out at Orders 2 and 3 below. 2. The punishment of dismissal is set aside. 3. In the place of the punishment of dismissal, the following punishment is substituted: Mr Pizarro is to be allowed to resign, provided that he gives that resignation within 7 days of the date of this decision. If a resignation is not provided within that time by Mr Pizarro, these three Orders lapse and the punishment of dismissal stands. PETER NEWALL Commissioner Amendments 10 February 2015 - Coversheet/Hearing dates "4 July 2104" amended to now read "4 July 2014". 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: 10 February 2015