Kuzma v State Transit Authority Group of the Transport Service of NSW [2017] NSWIRComm 1061

Industrial Relations Commission New South Wales Medium Neutral Citation: Kuzma v State Transit Authority Group of the Transport Service of NSW [2017] NSWIRComm 1061 Hearing dates: 31 July and 1 August 2017 Decision date: 13 September 2017 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The public sector disciplinary appeal by Wieslaw Kuzma is dismissed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – allegations against Bus Operator of breaches of Code of Conduct and Bus Operations Handbook – behaved in an inappropriate and unprofessional manner towards colleague – behaviour towards colleague was abusive and threatening – left bus unattended and unsecured – penalty imposed of reduction in classification for three months – misconduct allegations proven – penalty fair and reasonable in all the circumstances – appeal dismissed Legislation Cited: Industrial Relations Act 1996 Transport Administration (Staff) Regulation 2012 Category: Principal judgment Parties: Wieslaw Kuzma (Appellant)

State Transit Authority Group of the Transport Service of NSW (Respondent) Representation: Ms I Ansaldi (Appellant)

Mr W Treglown (Respondent) File Number(s): 2017/00105281

DECISION 1. Wieslaw Kuzma has appealed to the Commission pursuant to section 98 of the Industrial Relations Act 1996 ("the Act") against a decision made on 23 March 2017 by the State Transit Authority Group of the Transport Service of NSW ("the respondent") to reduce his classification from Bus Operator Level 2 to Bus Operator Level 1 for a period of three months. It has been estimated that the effect of this decision will be a reduction in the remuneration of the appellant of approximately $900 for that period. In addition, the appellant was issued with a formal warning. 2. This action was taken after a disciplinary investigation was conducted by Tanveer Kamaruzzaman, Senior Staff Supervisor, Port Botany, into the following allegations against the appellant: Allegation 1 On Sunday 13 November 2016 you breached the State Transit Code of Conduct Section No 3 and No 12 and TfNSW Transport Prevention and Management of Bullying and Harassment Policy in that you failed to maintain an appropriate professional standard of behaviour by engaging in inappropriate workplace conduct. Particulars of Allegation 1 1. On Sunday 13 November 2016 you operated Bus 2558 on Shift D986, Run R006 at North Bondi Terminus from approximately 16.25. 2. You behaved in an inappropriate and unprofessional manner toward a colleague at North Bondi Terminus. 3. Your behaviour toward that colleague was abusive and threatening. 4. Your actions constitute inappropriate workplace conduct and are in breach of State Transit policies. Allegation 2 On Sunday 13 November 2016 you breached the State Transept Code of Conduct Section No 3 and Instruction Number 2.1 of the Bus Operations handbook when you left Bus 2558 unattended and unsecured at North Bondi Terminus. Particulars of Allegation 2 1. On Sunday 13 November 2016 you operated Bus 2558 on Shift D986, Run R006 at North Bondi Terminus. 2. At approximately 16.33 you left Bus 2558 unattended and unsecured. 3. Your actions constitute a serious safety breach and are contrary to State Transit policies. 1. Allegation 1 related to an altercation which occurred on 13 November 2016 at the North Bondi Terminus between the appellant and Jun Mochizuki, another Bus Operator employed by the respondent. Allegation 2 was that, during this incident, the appellant left his bus unattended and unsecured. 2. Section 3 of the Code of Conduct deals with staff responsibilities and contains the following: You must: • treat our customers and colleagues fairly, consistently and with respect; • behave in a lawful, professional and reasonable manner and always act in the best interests of Transport; 1. Section 12 of the Code of Conduct sets out the respondent's policy in relation to bullying, harassment, discrimination and inappropriate workplace conduct. This section of the Code contains the following: We have zero tolerance for bullying, harassment, discrimination and inappropriate workplace conduct. You must treat all colleagues, customers and members of the public fairly, with dignity and respect. 1. Section 2.1 of the Bus Operations Handbook is in the following terms: 2.1 Securing a Bus Bus operators must secure an unattended bus by: a. Ensure the front wheels are parallel to the vehicle b. Engage the park/hand brake, select neutral gear, turn off air conditioning (if applicable), stop the engine. c. Ensure all doors are close and windows if applicable d. Disable or close the AFC drivers console and remove the smartcard e. Remove cash fare takings and magnetic tickets from the bus. f. Remove the ignition key 1. In his report, Mr Kamaruzzaman found that the altercation between the appellant and Mr Mochizuki was instigated by the appellant and that Allegation 1 was proven. Mr Kamaruzzaman also found that Allegation 2 was proven. 2. Disciplinary action was taken against the appellant on the basis of the following disciplinary findings which were made against him: On Sunday 13 November 2016 you breached Section 3 and 12 in the Transport for NSW Code of Conduct in that you failed to maintain an appropriate professional standard of behaviour by engaging in inappropriate workplace conduct. On Sunday 13 November 2016 you breached the Transport for NSW Code of Conduct Section No. 3 and Instruction 2.1 of the State Transit Bus Operations Handbook when you left bus 2558 unattended and unsecured at North Bondi Terminus. 1. These findings were made by Brendan Rabbitt, Depot Manager, Kingsgrove, who had been delegated responsibility by the Transport Secretary to take disciplinary action against the appellant pursuant to clause 30 of the Transport Administration (Staff) Regulation 2012. 2. These proceedings relate to the appeal by the appellant against the three month reduction in his classification and consequent loss of pay. At the commencement of the proceedings, the appellant indicated that his English was "not really perfect" and that he wished to be represented by his daughter, Ms I Ansaldi. This was not objected to and Ms Ansaldi proceeded to represent the appellant in the proceedings.