Raveena Singh Rai and State Transit Authority of New South Wales [2015] NSWIRComm 1000

Industrial Relations Commission New South Wales Medium Neutral Citation: Raveena Singh Rai and State Transit Authority of New South Wales [2015] NSWIRComm 1000 Hearing dates: 16 July 2014, 30 July 2014 Decision date: 24 March 2015 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Claim dismissed Catchwords: Unfair Dismissal – Failure to sign in at scheduled sign on time on 5 occasions – alleged breach of STA policies/procedures – alleged failure to report lateness – accepted payment of wages for periods not worked and to which no entitlement existed – The Applicant failed to sign on at her scheduled commencement time – The Applicant received payment for time not worked and to which she had no entitlement – Dismissal not harsh, unjust or unreasonable. Legislation Cited: Industrial Relations Act 1996 Transport Administration (Staff) Regulation 2012 Cases Cited: Clifford v State Transit Authority [2013] NSWIRComm 1033; Pizarro v State Transit Authority [2014] NSWIRComm 1019; Melvin Feldman v State Transit Authority [2014] NSWIRComm 1017; Byrne v Australian Airlines Limited Airlines Limited [1995] HCA 24; 185 CLR 410 Category: Principal judgment Parties: Ms Raveena Singh Rai (Appellant) State Transit Authority of New South Wales (Respondent) Representation: Counsel: Mr Mark Fraser Fozzard (for the Applicant)

Solicitors: Mr S McLean (for the Respondent) File Number(s): IRC 345 of 2013

DECISION

Overview 1. Ms Raveena Rai (the Applicant) commenced employment with the State Transit Authority of New South Wales ('State Transit') as a Trainee Bus Operator on 27 April 1987. Twelve months' later, she was confirmed as a permanent Bus Operator at Burwood Depot where she remained until her termination on 19 April 2013. 2. In correspondence from the Respondent dated 23 March 2012 (provided to the Applicant on 27 March 2012), the Applicant received a Form E1 letter ('E1') which set out six allegations regarding her failure to sign in at her scheduled commencement (sign on) time. It was contended that the "alleged incidents … maybe a breach of State Transit policies and regulations". 3. Each charge was particularised in the E1 and, in short, alleged that the Applicant failed to sign in as per the normal procedures and was therefore late on five days in March 2014. The E1 alleged that the Applicant did not report or account for her lateness to any Supervisor or Manager and accepted payment of wages for the periods not worked and to which she had no entitlement. Charge 4 was subsequently withdrawn as it was found not to be proven during the internal investigation by the Respondent. 4. The E1 gave the Applicant seven days in which to provide a satisfactory explanation regarding the allegations. At the request of the Applicant, made on 3 April 2012, the Depot Manager, Selina Hatcher, approved a 7-day extension to 10 April 2012. 5. On 10 April 2012, the Applicant requested a further extension of time claiming that she was not well enough to reply to the charges against her. She provided a medical certificate from her doctor certifying her as unfit for work from 10 April 2012 to 17 April 2012. 6. Ms Rachel Byrnes, State Transit Regional Business Manager, Southern Region, wrote to the Applicant on 11 April 2012 advising that she had been appointed as Investigating Officer to handle the Applicant's disciplinary matter. She granted a further extension of time setting 16 April 2012 as the deadline for the Applicant's response to the charges. 7. Ms Byrnes received correspondence dated 13 April 2012 from Sarom Solicitors claiming to represent the Applicant and requesting a further extension of time to respond to the charges because the Applicant had been declared unfit for work up to 17 April 2012. The letter also requested employee journals of the Applicant relevant to the dates of the incidents. 8. Ms Byrnes responded on 16 April 2012 pointing out that the medical certificate declared the Applicant as unfit for work and not as unfit to respond in writing to the charges. Ms Brynes further advised that the Respondent would not be providing the said journals. 9. The Applicant's response to the charges was ultimately received on 19 April 2012. The Applicant was requested to attend an interview (Investigative Inquiry) on 23 May 2012. Ms Byrnes was advised on 22 May 2012 by the local union delegate, via the Staff Supervisor at Burwood Depot, Melissa Eames, that the Applicant would not be attending the interview. 10. At the written requests of Ms Byrnes dated 22 May 2012, the Applicant's treating doctor ultimately confirmed in writing on 25 May 2012 that "due to the patients depression and anxiety she will not be fit enough mentally to attend the formal interview that is planned at Burwood Depot". 11. Mr Mark Peters, General Manager Southern Region, in December 2012, directed Ms Byrnes to finalise the disciplinary investigation based on the information that had been collected to date. 12. Ms Byrnes submitted an Investigation Report to Mr Peters in early January 2013. 13. Ms Byrnes found all charges to be proven with the exception of Charge 4. In the Report Summary/Conclusion section of the Investigation Report, the reasons for her findings with respect to each charge were particularised: 1 Charge 1: On 8 March 2012 the Applicant was to sign on at the Portable Memory Reader ('PMR') at 15.56pm. She signed on at 16.06 pm (10 minutes late). 2 Charge 2: On 10 March 2012 the Applicant was to sign on at the PMR at 19.44pm. She signed on at 20.03pm (19 minutes late). 3 Charge 3: On 13 March 2012 the Applicant was to sign on at the PMR at 15.16 pm. She signed on at 16.26 pm (1 hour and 10 minutes late). 4 Charge 4: On 13 March 2012 the Applicant claimed 10 minutes late running due to machine not working and as a result was required to log off at the PMR at 25.11 am (10 minutes later than the scheduled completion time). The actual sign off time recorded was 24.54 am (18 minutes prior to the completion (sign off) time). Ms Bryne found the charge not proven and it was not relied on by the Respondent. 5 Charge 5: On 14 March 2012, the Applicant was to sign on at the PMR at 15.56 pm. She signed on at 16.10 pm (14 minutes late). 6 Charge 6: On 15 March 2012, the Applicant was to sign on at the PMR at 15.59pm. She signed on at 16.04pm (5 minutes late). 1. On 22 February 2013, Mr Peters wrote to the Applicant detailing the findings of the Investigation report. He advised that, in his role as Reviewing Officer, he was required to determine the level of punishment, if any, that should be applied in her situation. He also advised that, due to the seriousness and the nature of the allegations, he was considering disciplinary action in the form of dismissal. Nevertheless, prior to arriving at a final decision in relation to the level of punishment, he was inviting her to make submissions to him either in writing or through a face to face meeting with him by 8 March 2013. 2. The Applicant responded, on 25 February 2013, requesting a copy of the Investigation Report. That request was denied by Mr Peters who felt that the disciplinary process was not yet completed. In addition, he did not consider it relevant to her submissions to him on the level of punishment. In his statement in the proceedings, Mr Peters stated: The proposed meeting with M/s Rai was to allow her to make submissions regarding an appropriate punishment and not the findings of the investigation. I was of the view that discussion about the findings of the report could be counter productive and further delay the finalisation of a disciplinary process that had already been extensively delayed. 1. On 27 March 2013, Mr Peters met with the Applicant at the Southern Region office at Leichardt. When invited to make submissions in relation to the form of punishment, the Applicant advised that she had nothing further to add to what she had already provided in written submissions to Ms Byrnes. Nevertheless, she made two further observations. Firstly, in relation to charge 3, the Applicant pointed out that even when she was late she was always responsible for passenger pickups and always operated on time. Secondly, the Applicant pointed out that a practice had developed in relation to running late. She pointed out that there had been instances when her pay was docked and not recorded on her journal. 1. At the conclusion of the meeting Mr Peters undertook to consider both her written and oral submissions and advise her of the outcome. 2. Upon reviewing the investigation report, Mr Peters wholly endorsed the findings of Ms Byrnes. Mr Peters stated in his statement that he was of the opinion that: a. the investigation process had been conducted in accordance with State Transit procedures; b. Ms Rai had been afforded procedural fairness during the disciplinary process; and c. considering the contents of the report and available evidence, the findings of the report were appropriate. 1. In the section reserved in the Investigation Report for the Reviewing Officer's Comments and Determination of Punishment, Mr Peters set out what he took into account in determining the appropriate punishment. Those reasons are summarised as follows: i. the proven breaches of State Transit's Code of Conduct and Bus Operations Handbook whereby (on several occasions) Mrs Rai failed to sign on and off at her scheduled (sign on/off) time and accepted payment of wages from State Transit to which she had no entitlement; ii. procedural fairness was afforded to the Applicant in that ample time and opportunity was given to her to put forward her response to the charges and to make submissions with regard to the level of punishment; and iii. the Applicant's length of service (25 years) with the Respondent. 1. Having taken into account the factors listed above, Mr Peters determined that "given the multiple fraudulent and deceitful behaviours identified, the incident/s warrants the punishment of Dismissal". 2. The Applicant was unable, due to personal reasons, to attend a meeting on 19 April 2013 with senior management relating to her disciplinary proceedings and requested, by letter dated 16 April, that the written determination be posted to her. The Notice of Punishment, sent to the Applicant on 19 April 2013, advised that she had been dismissed by the Respondent. 3. It was not in dispute that Mr Peters had the delegated authority under the State Transit's Human Resources Delegations to implement punishments that are specified in clause 13(1) of the Transport Administration (Staff) Regulation 2012.