Clifford v. State Transit Authority [2013] NSWIRComm 1033

Industrial Relations Commission New South Wales Medium Neutral Citation: Clifford v. State Transit Authority [2013] NSWIRComm 1033 Hearing dates: 26 July 2013 Decision date: 26 July 2013 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Appeal pursuant to s.98 of the Industrial Relations Act 1996 dismissed. Catchwords: Public sector disciplinary appeal - bus driver - dismissal - failure to adhere to routes and times - recent final warning for the same conduct - effect of final warning on consideration of appeal - final warning to mean what it says - facts of misconduct made out - appeal dismissed Legislation Cited: Industrial Relations Act 1996 ss. 98, 100C. s100D Transport Administration Staff Regulation 2012 reg 13 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Category: Principal judgment Parties: Rail, Tram and Bus Union of NSW on behalf of Mr Mark Clifford - appellant State Transit Authority - respondent Representation: Mr R Woollams - appellant Mr S McLean - respondent File Number(s): IRC 203 of 2013

EXTEMPORE DECISION 1This is an appeal brought pursuant to s 98 of the Industrial Relations Act 1996, and I note that the appeal was lodged within the 28 days prescribed by s 100B(2) of the Act. The Commission's statutory powers in relation to an appeal of this kind are set out in ss 100C and 100D of the Act. Those provisions effectively replicate the jurisprudence previously held by the GREAT Tribunal and the Transport Appeals Board. 2I mention that because it is apparent from those statutory provisions that an appeal before this Commission is an appeal de novo. That is to say, the Commission is to hear and determine a matter before it on the facts and evidence before it, not simply review the decision of the initial decision maker. 3Further, the Commission's view of the punishment which has been imposed which is the subject of the appeal is to be formed on the basis of two things: firstly, whether the misconduct which is said to be the basis for the punishment has been made out as a matter of fact and, secondly, if it is, whether the punishment imposed is lawful and appropriate. 4The first test, in relation to whether the punishment is appropriate - I leave aside the question of lawfulness for the moment - is whether or not it is appropriate to the particular misconduct made out, but there is no doubt that consideration can also be had to relevant matters, including the employee's record and length of service, and those matters I have taken into account in forming the decision I form today. 5I turn to the question of the lawfulness of the imposition of the punishment. The punishments available to the STA are set out in regulation 13 of the Transport Administration Staff Regulation 2012. That regulation requires that any punishment be imposed by the Chief Executive Officer or his delegate. In this case, on the evidence, I am satisfied that the delegation was extended to Mr Rabbitt to impose the punishment which he did, and it follows that the punishment was lawful. If it were not lawful of course, the appeal would be necessarily successful on that point alone in almost every case, if not in every case. 6I have also formed the view that the procedures followed by the STA in coming to the decision to which it came afforded Mr Clifford procedural fairness. 7I hear the submission made on Mr Clifford's behalf that Ms Hatcher ought not to have been involved in the matter. I do not see on the evidence that a strenuous objection or any objection was taken by Mr Clifford or the union at the time that she did become involved, but the question remains to be considered today afresh. 8I add that I do not accept, particularly absent any suggestion of bias or predisposition which was in no way put to Ms Hatcher at all while she was here to give evidence and be cross examined, that there was a procedural flaw in that regard, as a matter of principle, in permitting her to be involved. 9In any event, even were I wrong about that, any procedural unfairness in the STA's carriage of the matter is cured by the fact that this Commission hears the whole matter afresh, as it has done. 10Having determined that the punishment imposed was lawful, that is to say it was imposed by someone who had the delegation to impose it, the next question in such an appeal as this is to determine whether the misconduct which has been advanced by the employer as the basis for the punishment actually occurred. 11Misconduct is a serious matter with potentially serious consequences and that means that the obligation to make out the misconduct, which falls on the employer, must be made out at a satisfactory level of proof. Briginshaw v Briginshaw (1938) 60 CLR 336 is the well-cited authority for that. Misconduct has to be made out on the evidence 'in a convincing way', as the Full Bench of this Commission said last year in Hargreaves' case, that is, NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123. That does not detract from the fact that a party who is seeking this Commission to allow an appeal, in this case the union on behalf of Mr Clifford, has the onus of persuading the Commission that it should allow an appeal. 12I now turn therefore to the facts of what is alleged to have occurred. 13The facts of the incident on 26 January 2013 are not particularly in contest. Mr Clifford has accepted the essential facts of what occurred on the day. The question is not what exactly occurred; in my view that is, subject to some minor details, not controversial, but why and in what context it occurred. 14The fact is that Mr Clifford was running late throughout the whole second part of his shift and the fact is that he did not ring the NCC as he conceded in cross examination he was obliged to do. That obligation to contact the NCC arose under the Bus Operations Handbook, and it is quite clear there is such an obligation to call in once the lateness exceeds 10 minutes. Mr Clifford did not ring the NCC at the point that he was 10 minutes late; rather, he rang the depot after 14 minutes. 15Mr Clifford could not be dismissed or indeed punished for a four minute failure in my view, and the fact that he made his call to the depot, not the radio room is explained, not necessarily condoned but certainly explained, from the fact that it can take the radio room a long time, anecdotally over 10 minutes, to respond to an individual call. 16Mr Clifford did not get back on schedule all day. Minor discrepancies exist in times between his own record taken, as he said, from the AFC and those on PTIPS, but I do not see any attempt by Mr Clifford to deceive in that. In some cases he puts himself later than the electronic record puts him, so I cannot make any finding that Mr Clifford did other than record honestly the times that he was late. Indeed, I accept that the journal which appears at tab 2 to exhibit 1 is a proper and accurate record of what occurred, and it was an attempt by Mr Clifford to record exactly what did occur on that day in as much detail as he felt that he could, and he has gone into some detail in doing so. 17Mr Clifford did not, as I say, get back on schedule all day. He did contact the Leichhardt Depot at the start of his problems with time, which was when the bus that he was meant to meet was late. That was not his fault. What he did not do after that, even though he ran late then for another four hours, was contact the radio room to inform them. Charge 10 of the charges against him sets out a string of instances where that is said to be the case, essentially at every turning point in the schedule. 18But even if one takes it as one single ongoing obligation throughout the day, rather than a number of them, Mr Clifford conceded that he knew he ought to have rung, or he knew he had an obligation to ring, the control room. He conceded that there were opportunities to do so, at least one that he identified himself, and yet he did not do so. He cannot have been in my view in any doubt that he ought to have done so. It is clearly enough set out in the Bus Operations Handbook and indeed in his own evidence he accepted that he ought to have done so. I do not accept that Mr Clifford could properly have gone the whole balance of that shift after the initial difficulty - which was not his fault - without contacting the NCC, telling the NCC, and without understanding that he ought to have done so. 19I will accept, I say again, that the process started badly for Mr Clifford in that the bus he was waiting for did not arrive. That was not his fault, but he is at fault in my view in that he did not do what he was obliged to do, and knew he was obliged to do subsequent to that. 20That is not the sum of the charges against him, however. There is also this, that in the second half of that shift he took a number of longer than prescribed standing times at several points. Those are set out in the charges, in particular charges 4, 7 and 8. Mr Clifford's answer to those charges became more developed today than in his initial response to the STA; today he indicated that he was obliged to take toilet breaks and also that there were parking difficulties. 21When one looks at the record which appears at tab 2 of exhibit 1, one sees that on two occasions Mr Clifford has marked that the terminus was blocked, and I am prepared to accept that that is the situation in which he found himself on the two occasions he so marked it. He has marked that he was required to take a toilet break in his standing time between 15.28 and 15.43, which turned out to be in real time between 16.00 and 16.15 as both Mr Clifford's record and the PTIPS system record. He has not recorded anywhere else that there was a blockage to the terminus that he had been in, nor does he record anywhere else that there were longer than allowed standing times because of a toilet break. In my view, no real or convincing explanation was offered to management during the disciplinary process for those longer than allowed standing breaks. 22Today, Mr Clifford gave evidence on his oath that he had diarrhoea and therefore had to take toilet breaks. I note that he has recorded the one toilet break in the journal but not more. I have difficulty accepting that if that were the case, that when the matter were fresh in his mind and he was being interviewed by management about it, particularly and not least in the context that he knew that he had already had a warning for this kind of conduct and was on, to use my words, thin ice, he would not have raised that matter as an explanation. He was squarely asked 'Can you say why it is that you did this?', and he did not advance the reason that he now advances, 'I was ill and I was required to take more toilet breaks'. I am obliged to regard Mr Clifford's evidence in that regard today with some reservation. 23I accept and the Commission accepts that bus operators work under pressure. The work is not easy in the first place and the vagaries of passengers, breakdowns, traffic and weather conditions are, I readily accept, stressful. I make these remarks because Mr Clifford has said in his evidence, or his exculpatory material to the employer, that he was under stress at the time. 24I accept the work is stressful, but the requirements to report in and to observe his standing breaks are in place. If they are not fair or not proper requirements, they will no doubt be challenged on a larger scale by the Union. For now, they are there and they are binding on bus drivers. One slip does not make out misconduct, but a repeated pattern, even over a day, a failure to call in and a failure to properly tighten up and observe the standing times in my view does amount to misconduct. The conduct actually occurred, that is not in dispute. It in my view constitutes misconduct within the nature of that term as it is meant by the STA's policy documents and as is meant pursuant to the regulations. 25If then the facts occurred and they comprise misconduct, as I found that they do, the question then arises as to the appropriateness of a punishment. 26On its own, Mr Clifford's conduct on 26 January would not be a matter warranting dismissal, but it is not on its own. Mr Clifford has come to the attention of the STA for attendance issues and for driving issues, although the latter I understand are common to many drivers; he is not alone in that. In many ways it is a product of the difficulty of the work. But he has those records and the attendance record that he has, and more tellingly he has a disciplinary record for matters very much of the kind of those that occurred on Australia Day 2013. I give no weight to the counselling years before, but I am obliged to give weight to the other matters, and I am obliged to give weight to the fact that Mr Clifford was on a final warning. 27I am obliged to give weight and meaning to the final warning. It is what it says it is. The union, as I understand it, intervened on Mr Clifford's behalf and fought for a reduction in punishment last year and got it; that final warning was the compromise that resulted. I do not suggest the union necessarily agreed with it, but it is what Mr Clifford was stuck with even after his union's intervention. It was not long ago and the offence this time is of a similar nature. 28I accept the evidence of Mr Peters, which was not in any event challenged on this point, that he made it unambiguously clear to Mr Clifford what was required, and that he made it clear to Mr Clifford that further infraction would lead to dismissal without leniency. Mr Clifford, I am satisfied, knew that and indeed on the uncontroverted evidence he said to Mr Peters that he understood what was required and he was grateful for the chance to improve. 29Mr Clifford now says to the Commission that he did not properly understand what was required. I note that he said that in August 2012, and I am prepared to accept at that time it was true. I do not act in any way upon the submission of Mr McLean that Mr Clifford broke off the interview in respect of this matter because he realised he was caught out in giving the explanation he gave. That submission has not had any weight in this decision. 30But I do observe this. Mr Clifford had a final warning imposed upon him in 2012. He was told in unambiguous words, as I am prepared to accept, by his general manager what was required of him and Mr Clifford said at that time that he understood what was required of him and would improve. If Mr Clifford really did not understand after that point what he ought to have done, having said that he understood what was required, then he made a rod for his own back in that regard. It is difficult for the Commission to accept that on this occasion as well, given the circumstances of his last warning to which I have just referred, Mr Clifford really did not understand what was required of him. 31I am afraid I am not prepared to accept that he did not understand that he had an obligation to contact the NCC throughout the second four hours of his shift, even though he did contact the depot at the beginning of it. I am not prepared to accept, as I have said, the evidence about the reasons for exceeding standing times, I have said I have to treat it with some reservation. To put it in blunt words, I cannot now accept that explanation being advanced today for the first time as a basis on which the charges for excess standing times should be brushed aside. 32In the end, a final warning for a particular kind of conduct given five months before must be taken to be a final warning for that kind of conduct. The conduct in effective practical terms was repeated, in the context of that warning having been given, and in the context of Mr Clifford's record otherwise, but especially in the context of that warning, which spelled out what Mr Clifford was obliged to do. 33I am not able to find that the punishment imposed upon him was inappropriate and accordingly I decline the appeal. 34The Order that I make in this matter is that the appeal is dismissed. 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 July 2014