Industrial Relations Commission New South Wales Medium Neutral Citation: Grech v. State Transit Authority [2014] NSWIRComm 1030 Hearing dates: 1 July 2014 Decision date: 01 July 2014 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Appeal dismissed Legislation Cited: Industrial Relations Act 1996 s.98 s.100B, 100C(2) Cases Cited: Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 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 Category: Principal judgment Parties: Mr Peter Grech - appellant State Transit Authority - respondent Representation: Mr O Fagir (Rail Tram and Bus Union NSW) - appellant Mr S McLean (State Transit Authority) - respondent File Number(s): IRC 36 of 2014 DECISION 1. This is a Public Sector disciplinary appeal brought pursuant to s 98 of the Industrial Relations Act 1996. At issue is the imposition by the STA, to use their abbreviation, of a disciplinary sanction on Mr Peter Grech. The sanction or sanctions were, a reduction in rank from a senior bus operator to a bus operator 1, with a consequential loss of income and I interpose that loss appears to be at maxim in the order of $4,200 gross over the 12 months fixed term reduction and less after tax, but I am prepared to accept that any loss of wages is a significant matter for a worker, and more so, in my view, if he is a family man, as Mr Grech on the evidence, is. 2. The second element of the sanction imposed upon Mr Grech was a final warning. The reason for that sanction imposed upon Mr Grech, it was said, and I draw these from the evidence of Mr Piggott and in particular the Form E1 which he provided to Mr Grech on 10 December 2013 which forms part of the evidence, are these: There were essentially three allegations, and without reading all them out onto the record in depth, they are firstly an allegation of the breach of Code of Conduct by distributing information to other staff members with the intent to bring State Transit into disrepute, on 4 December 2013. 3. The second allegation is that on the same day, Mr Grech breached the Code of Conduct by arranging for the distribution of information in a public forum with the intent to bring State Transit into disrepute. 4. The third allegation is that on that day, and by the same conduct, it is inferred, Mr Grech breached the Code of Conduct when he misused his position as union delegate. Each of the allegations were particularised. 5. It is proper that I turn briefly to the Commission's powers in the matter of this kind, not at length because the matter of the jurisprudence and the statue is not in controversy but it does point to the rest of what I have to say in context. 6. As I have noted this is an appeal brought pursuant to s 98 of the Act and I observe that it has been brought within the time required by s 100B of the Act. The Commission's powers in an appeal of this kind are set out in, s 100C of the Act. That provides, relevantly, as follows: In s 100C(2), the Act provides that the Commission in relation to a disciplinary appeal such as this, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. I do not read subsections (3) and (4). 7. It is immediately apparent and it was very properly submitted by Mr Fagir for the appellant, that the statute makes it clear that an appeal before this 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 in a procedural sense the decision of the initial decision maker. The authority for that proposition is Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91. 8. The Commission, in being permitted to either allow or disallow the Commission or make such other decision as it sees fit, is not constrained merely to accept or reject the initial decision. It may impose another sanction if it sees fit, including a harsher sanction than that which the initial decision maker imposed.​ 9. It is the case that the Commission has inherited the jurisprudence previously exercised by the GREAT Tribunal and relevantly here the Transport Appeals Board. 10. This is a case in which misconduct has been alleged as the basis for the sanction which is appealed. The first and fundamental test in an appeal of this kind is therefore to determine whether the misconduct which was cited as the basis for the punishment actually occurred. And I should say here that misconduct is a serious matter and it has potentially serious consequences and in this case has had serious consequences and accordingly the obligation to make out the misconduct falls entirely upon the person alleging it, that is in this case, the employer. Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 and National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 are the obvious authorities for those propositions. 11. In this case the facts are not largely in contest although there are some questions about the reasons for those facts. I note that there are some exceptions which have emerged on the evidence concerning the facts which provide a significant difference in respect of some important underpinning facts and I will return to those. While the obligation to make out the facts of the misconduct of course, as I have said, falls upon the person alleging it, that does not remove the obligation or the onus upon the party seeking to persuade the Commission to allow an appeal to persuade the Commission that it should be so allowed. 12. Did the misconduct in this case occur? That is of course a matter of factual evidence and in this case the facts as I have said are generally conceded. What was said against Mr Grech was this, to summarise the allegations as they were put in the Form E1 given to him by Mr Piggott: That Mr Grech distributed a leaflet to other members of staff, that he arranged for the distribution of that leaflet to the public by it being placed on the passenger seats in a number of buses, including his own but including other employees' buses, following him asking them to do this. Thirdly that in so doing he misused his position as union delegate. 13. As I have said, the basic facts are not essentially in controversy, but what Mr Grech says happened was this: He was, and had been for a very long time, months and months, seriously concerned about the position of Mr Navarro a fellow employee, a long standing employee, a man who was seriously ill and was at some time at least, if not all of that time, in hospital. He was aware that Mr Navarro's sick leave payments had been interrupted. He regarded the STA's basis for so interrupting those payments as being unwarranted or unjustified. He raised a dispute about that matter in June of 2013 as he was entitled to do. He was not satisfied that that brought a result sufficiently beneficial to Mr Navarro, that is the payment of his sick leave. He was frustrated and distressed by what he saw as the STA's poor treatment of Mr Navarro and their delay in dealing with Mr Navarro's circumstances. 14. He says he received from Mr Dobson a leaflet by email; a leaflet which Mr Dobson had prepared it seems from a photograph on a telephone taken by another colleague and forwarded to him. Mr Grech says he agreed with Mr Paino that they would distribute the pamphlet. Mr Paino gives a different account of that to the STA investigator, but he comes before the Commission very bravely and says that he was equally responsible as Mr Grech, but that is not the evidence that he gave in the first instance to the STA. 15. What matters though is this. Mr Grech says that he asked other bus operators to place four or five, he says, pamphlets on seats of buses and it is clear on the uncontroverted evidence he did ask a number of bus operators to do this, in particular Mr Te Peete, Mr Deejenaars, Mr Paino whether by agreement or otherwise, and Mr Tarik and they did, they put the leaflets on the passenger seats of buses, and so did Mr Grech. There was a clear and deliberate intention on Mr Grech's part to cause the leaflets to come into the public's hands. 16. So of course did Mr Dobson on his own account now given, put leaflets into the public's hands, although that admission was made, the best I can apprehend it, certainly after Mr Grech had been disciplined and it rather seems after Mr Dobson was no longer an employee of the STA, which he is not now. 17. There is no evidence as counsel for Mr Grech has put, that any member of the public did see the leaflets. The intent to put them in the public's hands was evident, that was done by Mr Grech to make the STA pay Mr Navarro and he said in his evidence twice that the other alternative he was weighing was simply going to the media about the matter. There is a strange paucity of evidence about the provision of the leaflets to Mr Grech, neither Mr Dobson nor Mr Grech produced the email that passed between them covering the leaflet, though it is agreed there was one, at least by Mr Dobson. Mr Dobson also says he wrote a letter dealing with the facts of the matter to the union that hasn't made its way into evidence, there may be an explanation for that but I have not been advised. 18. Nevertheless as to the facts as how the leaflet came to be in Mr Grech's hands, I accept the evidence of Mr Dobson who struck me as a truthful witness. He gave evidence that he created the document, that he distributed it himself and indeed put it under the door of the Minister; he certainly gave evidence that he provided it to Mr Grech on 2 December. He said that he and Mr Grech had an extended conversation about the leaflet and its contents. 19. Mr Grech denied or disavowed this conversation but I accept Mr Dobson's evidence of that conversation as being truthful. His evidence was that Mr Grech said to him words to the effect of, "well we'll get this out, we want people to see this", consistent with what I understand was Mr Grech's intent in the matter. Mr Dobson also says that he chose to give the leaflets to Mr Grech particularly, not because he was the only person who was concerned about Mr Navarro - it seems a number of Mr Navarro's colleagues were concerned about the man, very properly, the man was ill - but Mr Dobson says he gave the leaflets to Mr Grech because he was the union delegate, precisely because he was the union delegate and because he would use his position to cause the leaflets to be distributed, which of course is precisely what Mr Grech did. 20. It has been put as a part of the appellant's case, but by no means all of it that Mr Grech has been effectively victimised as a union delegate. I do not see that that is so. A union delegate has a range of obligations to his members, to his union, to his employer and in my view, and I will state it perfectly clearly, the position of a union delegate is absolutely essential to the fabric of the Australian system for labour relations, it cannot be dispensed with and that is, amongst a whole lot of other things, the reason why victimisation of union delegates is something which is expressly prohibited under statute. 21. But it is also inescapable that a union delegate knows more about the proper way to conduct proceedings with an employer on behalf of his members and anybody else. He has to, because he is the delegate. And he has an influence over his members, he has, and he knows that he has. A delegate may use his position for a number of things in defence of his members, occasionally he may overstep the mark and he may use inappropriate language, he may be over vigorous in his efforts to assist members, he may even be provocative. Those things might be forgiven and in matters before the Commission as presently constituted, they have been. 22. What a delegate cannot do in my view is use his position as a delegate to encourage or persuade other employees to breach their obligations to their employer under the Code of Conduct. That cannot be acceptable no matter what the motive. That is, it seems to me, what Mr Grech has done, and it was premeditated. He had the leaflets in hi sposession, On his evidence he had them for a week, but I prefer Mr Dobson's evidence. a day or so. Nevertheless it was premeditated in this sense; Mr Grech knew full well that there were a range of other options he had open to him to assist Mr Navarro. I accept that he was frustrated. I accept that the primary motivation for Mr Grech's action in this case does appear to have been to help Mr Navarro and no one can be criticised wanting to help a workmate. 23. Mr Grech had in his possession the medical certificates supporting Mr Navarro which he did not provide and he says in is evidence "well I didn't because there needed to be a form to go with it", but it turns out that he took the best part of a fortnight to get that form filled out by Mr Navarro and provide it to the STA with a certificate, whereupon Mr Navarro was paid. The time he spent distributing these leaflets might have been better spent, I observe, in doing that. 24. Equally, he was aware, because he said in his evidence that he was aware that the dispute that he notified back in June with this matter with the STA, had expired. He knew he had the ability to notify a dispute with the STA and he knew he had the ability to come to this Commission with such a dispute. He chose not to do that, he chose instead to do something quite different which was to not only distribute material amongst his workmates, that may be one thing, but to cause it to be distributed to the public forum, and it matters not how many or whether it fell into the public hands, it was intended to do so, he caused other employees to do that as a matter of conscious choice. 25. This is not an inquiry into Mr Grech's motive – although counsel for Mr Grech invited me to make that inquiry - it is an inquiry into his conduct, but it must be said that if his desire was solely to help Mr Navarro do other things and better things, which he could have done, to assist his workmate before and other than this leaflet distribution. 26. Returning to the matters of fact, there is not any criticism made of the process adopted by the STA as a process, and I think rightfully not; in any event Mr Grech was suspended for eight days at the maximum, perhaps a little less but let us say eight days while it was investigated, and that deprived him of course of some shift penalty income and Sunday income normally received. It was then found that he had done what he was said to have done, that is essentially uncontroversial because the facts are not put in contest. 27. To Mr Grech's credit on 10 December he said in a meeting, and he later confirmed in writing, that he distributed the leaflets and he said "I take full responsibility for this." Regrettably, it is inescapable that when he was asked about it the first time by Mr Piggott, he was not so candid. I accept Mr Piggott's evidence, I regarded Mr Piggott as I regarded Mr Dobson as a witness of truth. He was expressly cross-examined about this matter following leave been given to recall him for that purpose, the cross-examination was vigorous and appropriate but Mr Piggott's evidence was in my view, unshaken. I accept the account he gives at para 16 of his conversation with Mr Grech. What Mr Piggott says in his evidence, and I note he was not cross-examined at the first instance but he was after his recall quite expressly, he said: "I provided Mr Grech with a copy of the leaflet. I asked Mr Grech if he knew of the leaflets and who distributed them. Mr Grech informed me that he did know of the leaflets, however he did not know who created and distributed the leaflets." 1. I accept that that was in fact the conversation between the two men. I also accept that Mr Piggott heard Mr Grech say at the end, that he was not making any further comment without his union delegate being there, Mr Piggott confirmed that that was said. 2. When one looks at the reason why Mr Piggott conducted the interview with Mr Grech, and that is apparent from what he says in paras 12, 13, 14 and 15 just above that, his whole concern was about the distribution of the leaflets, which had been brought to his attention by Mr Michael. It is inconceivable in my view that Mr Piggott, asking Mr Grech if he knew about the leaflets, would not have asked him if he distributed them or if he knew who did distribute them. I accept that he did ask that; that was his purpose. Mr Grech says Mr Piggott did not ask him that I am afraid I am unable to accept Mr Grech's evidence on that point. 3. I accept also that Mr Piggott asked, and Mr Grech denied, knowledge of the source of the documents. I do not accept Mr Grech's evidence that that simply did not happen. I know all about not dobbing in a workmate, I understand the reticence to so doing and it may be thought that it is more important not to dob in a workmate, in this case Mr Dobson, than to tell the truth to your employer, but the thing is, if an employee tells an untruth to his employer or is less than candid with his employer when asked a direct question about a matter, then the capacity to do serious damage to the employer relationship occurs. 4. I have looked carefully at the sanction that has been imposed upon Mr Grech in light of the matters advanced on his behalf by Mr Fagir. As I have said I do not accept that he was treated differently, improperly for reason that he was a delegate. I accept that there is a cost to Mr Grech in the imposition of a sanction that he suffered and I accept that that is a serious matter to any employee. 5. It was put further on Mr Grech's behalf that the punishment visited upon him was disproportionate to that visited upon others, in particular Mr Paino and Mr Dobson. In Mr Dobson's case it seems to me the STA simply did not know and that is partly because Mr Grech declined when he was asked a direct question to tell them that Mr Dobson was involved until after he ceased to be an employee. Mr Paino says in his statement to the Commission, and he was not challenged on it, that he agreed with Mr Grech, was a willing participant in the distribution of copies and he points to the fact he escaped sanction. I am not entirely satisfied he escaped all sanction because I am told that he was given a letter of correction or direction although that has not been put in evidence. Clearly a disciplinary punishment was not imposed upon him. 6. But the situation is this: whilst it is the case, as counsel for Mr Grech has advanced, that differential treatment has a capacity to be unfair and is not the case that every punishment that is imposed upon an employee must match the punishment imposed by other employees. In my view the circumstances are different in respect to Mr Grech and Mr Paino and ultimately the important point is this; it is not for the Commission to assess whether or not Mr Paino was appropriately or inappropriately punished, although it is the case that a regard to other punishments in the sense of proportionality can be taken. What is required is to assess whether or not Mr Grech has committed misconduct and whether or not the sanction that has been imposed upon him, is appropriate for the misconduct that has been established upon the evidence. 7. In my view the deliberate choice of distribution of material overtly and plainly critical of the STA to the travelling public was necessarily a breach of Mr Grech's common law obligations to his employer and those he owed to his employer under the current Code of Conduct. That matter in my view is a serious matter and it is inescapable that it is a serious matter. 8. In my view for that reason the sanction which has been imposed on Mr Grech is an appropriate one. I am faced with this further difficulty, I cannot avoid the conclusion that Mr Grech has, apart from that matter for which he was disciplined, told his employer an untruth or expressly declined to tell his employer the truth when he was expressly asked to do so. 9. It is open to the Commission, as I indicated to the parties before the luncheon adjournment, and I have said again in this summary decision to impose a more serious sanction upon an employee than the employer has chosen to do so and in my view I am not confined, just as the decision in Lane v Arrrowcrest tells us the employer is not confined, to dealing with the matters that the employer knew at the time that it imposed a sanction. 10. I have on consideration decided not to impose any other sanction upon Mr Grech than that which has already been imposed and I will say it would now be in my view not be appropriate for the STA, given that this is my decision, to seek to impose any further or other penalty on Mr Grech based on those facts. 11. However, the appeal against the sanction that has been imposed must be dismissed. The order 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: 13 January 2015