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. Background 1. The appellant has been employed by the respondent as a Bus Operator since 10 March 2009. He has been classified as a Bus Operator Level 2 since 10 March 2011. He works out of the Randwick Bus Depot. 2. On or around 31 August 2011, the appellant was awarded a Statement of Proficiency for his ability to apply safe and defensive bus driving techniques. 3. On or around 7 November 2011, the appellant received a Certificate of Commendation for providing excellent customer service. 4. However, on 3 November 2015, the appellant was counselled regarding his failure to operate a service in accordance with the instruction on his work journal. This followed receipt by Randwick Depot Management of customer feedback reporting that the school run which appellant operated on 29 October 2015 from Mascot Primary School to Eastlakes, failed to commence from the correct location. 5. On 3 March 2016, the appellant was issued with an "Official Discussion" letter regarding four incidents of poor customer service. 6. On 17 November 2016, the appellant was issued with a "Form E1" notice alleging a breach of the TfNSW Code of Conduct and the TfNSW Prevention and Management of Bullying and Harassment Policy. The alleged breach related to an incident which occurred on 4 November 2016, when the appellant attended the Randwick Depot Supervisory offices and allegedly used abusive and offensive language towards Randwick Depot Management. Following a disciplinary investigation, appellant was issued with a formal warning letter. 7. Apart from the matters referred to immediately above, the appellant had not been the subject of formal disciplinary action during his eight year career with the respondent, until the disciplinary process which led to the decision which is the subject of this appeal. Incident of 13 November 2016 1. On 13 November 2016, the appellant worked from around 9.40am to 1.35pm and then from 2.25pm to 9.10pm. At around 4.30pm the appellant drove into the North Bondi Terminus and parked his bus. There is a dispute between the appellant and the witnesses who gave evidence on behalf of the respondent as to precisely what happened next. 2. There was some CCTV footage taken from inside the appellant's bus, as well as from other buses, which was tendered into evidence. This CCTV footage and the associated audio recordings are not particularly clear, but do shed some light on the conflicting versions of the event. 3. Also tendered into evidence were timelines, which had been prepared from the CCTV footage and audio recordings, which set out chronologically how the incident unfolded. The appellant did not dispute the accuracy of these timelines. 4. As is the case in public sector disciplinary appeals such as this, the respondent presented its case first. The respondent's evidence Jun Mochizuki 1. Mr Mochizuki is employed as a Bus Operator at the Waverley Bus Depot. On 13 November 2016, Mr Mochizuki completed, in his own handwriting, a General Report Form in which he stated as follows: When I arrived at North Bondi terminus, two buses already parked, so I parked on top of the around corner. then other Waverly bus parked Randwick bus 2558. I knocked his bus. Because both door closed and I saw driver sat down at passenger seat. I pointed behind his bus and also I gestured the bus move to top of the line. He opened the front door and started "Yelling". You're very rude… I told him. "You parked middle of the bus stop. so could you move to …. line. Because… But he still yelling two Waverly bus driver tried to stop fight I just want to everyone for happy to parking at North Bondi After Randwick driver left, I complained Inspector Mr Chris Ryan 1. On 28 February 2017, Mr Mochizuki was interviewed by Mr Kamaruzzaman as part of the disciplinary investigation. The record of interview contained the following: JM: …Unfortunately the Randwick driver, he parked it like near the corner so I saw him sitting in the passenger seat so I just knocked and pointed, 'buses behind you so could you move', something like that. And then I turned around, I'm thinking to go to the restroom but he opened the door he started to say something but I couldn't hear because I just told him and then I told him again buses behind you so could you move a little bit because other bus couldn't go through. And I went to restroom and come back and I think he start abuse. He said, he used the F word and like hard c**t something like that and you are very rude. But actually I'm not rude I just said move the bus that's it. And then after that almost fighting but one of our drivers tried to separate and I think he went back to the bus and I talked to the two drivers, Waverly drivers. And you know I'm almost like a kettle, I'm very angry but I tried to calm down. But I think I did a, like a boxer but to the other side, watching other side. But I think he watched the mirror so that's why he came back and start like almost fighting again and Khong Vu and one driver he tried to separate. But I'm totally upset that's why I think I took his bus number and he start more angry and he asked me where's your bus? I just point to the other bus. He took a photo and after that we separate. 1. Later in the interview, the following exchange occurred: TK: Fair enough. I have interviewed the Randwick driver in relation to this matter, the one you had the incident with on the 13th of November. He alleges that you made rude and offensive comments towards him which provoked him to leave the bus and approach you. Can you recall saying anything towards him prior to him exiting the bus? Like before he got out of the bus the first time did you say anything at all? JM: I can't remember but I didn't say any rude word. TK. The Randwick driver claimed that you said words to the effect, "Randwick drivers are stupid and deserved to be bashed". Can you please confirm or deny whether you made any such comment or speak any such words? JM: (Laughing) No. TK: The Randwick driver has also alleged that after he had moved his bus forward he was ready to depart when he noticed you in his near-side mirror talking to your colleagues from Waverley Depot and making threatening gestures, boxing gestures to be more precise. He said that he took this as an indication of you telling your Waverly Depot colleagues what you would do to him and this provoked him to come out and approach you a second time. Can you clarify what you were discussing with your fellow bus operators from Waverley when the Randwick driver came out again? JM: Actually, I did fighting pose but I watched not to the driver but to the other side. And then he come back. Maybe the other driver he knows. 1. The witness statement of Mr Mochizuki, which was tendered in these proceedings, gave a version of events which was largely consistent with the content of Mr Mochizuki's General Report Form and his interview with Mr Kamaruzzaman. 2. In his oral evidence, Mr Mochizuki denied that he had done anything that could have increased the anxiety of the appellant in the incident. 3. Under cross-examination, Mr Mochizuki also denied that he had said "Randwick bus drivers are stupid and deserved to be bashed". He was also questioned about "doing the boxing moves like that, towards Mr Kuzma, as he's leaving the bus…". The following was put to Mr Mochizuki: Q. But I also asked you if you provoked him in any way and you said you never did, but boxing poses is a way of provoking somebody and you didn't mention that you even did boxing moves when you were asked by Mr Tanveer if you did anything. You totally completely skipped it? This proposition is clearly wrong in light of the recorded responses from Mr Mochizuki during his interview with Mr Kamaruzzaman (see paragraphs 23 and 24 above). 1. Mr Mochizuki did accept that, after the first part of the altercation with the appellant but not in the appellant's presence, he said during a conversation with two other bus drivers "I almost punched him". He explained why he made this comment to the other bus drivers in the following terms: A. … I said I almost punch him. I think, I think because yeah, almost - excuse me - yeah, almost attacked me that's why maybe I said. And later, in re-examination, the following exchange occurred: Q. Mr Mochizuki, the boxing moves, were they directed at Mr Kuzma? A. No. Q. What was the purpose behind the boxing moves? A. For the other guy. Q. And the purpose was for what reason? A. Sorry Q. Why were you doing the boxing moves at the other driver? A. Because he's more aggressive, that's why I protect myself. Q. A little bit of foolery? A. (No verbal reply) Q. You were talking only to the bus driver or were you talking to Mr Kuzma when you did the boxing moves? A. I talk to only the driver, not for him., when I-- Q. So were you trying to get Mr Kuzma's attention through doing boxing moves? A. No. Q. Were you trying to provoke Mr Kuzma? A. (No verbal reply) Q. No? Your comment, "I almost punched him", you said in your answer to Ingrid hat you felt threatened. Could you expand on that please a little bit? A. Yeah, I'm scary. I've never happen like this before, that's why I'm scary, nervous. That's why maybe I said-- Q. Maybe you said that you almost punched him? A. Yes. Duy Vu Khong 1. Mr Khong has been a Bus Operator at Waverley Bus Depot since 1 January 2008. He was present at the North Bondi terminus on the afternoon of 13 November 2016 when the altercation between the appellant and Mr Mochizuki occurred. 2. On 16 November 2016, Mr Khong completed a General Report Form in his own handwriting. That report contained the following: Randwick driver parked his vehicle near the entry of the north Bondi terminus (instead of moving to the front). Jun (333 bendy driver) and me (380) had no choice but to park behind the Randwick driver blocking the entry. Jun got off the bus and asked the Randwick driver to move forward (which is common courtesy) and that's when the scuffle happened. There was no physical confrontation just screaming and shouting. I got off the bus and stepped in between them and told to let it cool down. 1. In his oral evidence in chief, Mr Khong stated that he thought the appellant was more aggressive than Mr Mochizuki during the altercation. Under cross-examination, the following exchange occurred: Q. But would you say it takes two to tango? Do you think it was just directed one way or do you think it was coming from both ends? A. More from Kuzma. Like Jun wasn't agitated while Kuzma was more of the agitator. Q. So he did do boxing moves? A. In a jovial way. Q. But he stopped where the side mirrors could see, where Mr Kuzma can see through the side mirrors? A. That's right, that's, yeah-- Tanveer Kamaruzzaman 1. On or about 2 December 2016, Mr Kamaruzzaman was requested by Selina Hatcher, Depot Manager Randwick, to undertake a disciplinary investigation into allegations against the appellant. Mr Kamaruzzaman was provided with the Form E1 notice which set out the two allegations against the appellant together with particulars (see paragraph 2 above). 2. Mr Kamaruzzaman was also provided with the appellant's written response to the allegations as well as a number of other documents which included the General Report Forms that were completed by the appellant, Mr Mochizuki and Mr Khong. 3. Mr Kamaruzzaman also viewed the CCTV footage taken from the appellant's bus as well as a number of other buses which were parked in the vicinity. The following timelines were derived from that CCTV footage and annexed to Mr Kamaruzzaman's witness statement. As already stated, the appellant did not challenge the accuracy of these timelines. Bus 2558 Location North Bondi Terminus B/op Wieslaw Kuzma ……………. 16:30:34 B/op Mochizuki knocks on a nearside bus window and gestures to B/op Kuzma to move bus 2558 forward in North Bondi Terminus lay up area 16:30:49 B/op Kuzma moves towards the drivers seat then opens the front doors and gets off the bus walking towards B/op Mochizuki in an aggressive manner yelling 16:31:07 B/op Mochizuki can be seen walking away and B/op Kuzma follows him 16:31:23 B/op is heard yelling inaudibly then is heard saying "no, you calm down, you be calm down" 16:31:26 B/op Kuzma is seen to walk towards B/op Mochizuki and another B/op who are standing by the toilet block 16:31:46 B/op Kuzma gets back on bus 2558 saying "that's enough" 16:31:59 B/op Kuzma yells out of the bus "fucking psycho" 16:32:06 B/op Kuzma starts bus 2558 and moves forward to the layup area 16:33:01 B/op Kuzma begins to drive off then brakes heavily applies the park brake and opens the front doors leaving the bus unsecured (engine rinning (running), drive gear selected, park brake applied) he walks along the footpath towards the Waverley Bus Operators 16:33:54 B/op Kuzma is observed walking away from Waverley Bus Operators and walking back toward his B/op cabin then returning to the rear of his vehicle 16:34:10 B/op Kuzma is observed walking away from Waverley Bus Operators and walking back toward his B/op cabin then returning to the rear of his vehicle 16:34:31 B/op Kuzma is observed walking away from Waverley Bus Operators and walking back toward his B/op cabin then returning to the rear of his vehicle 16:35:22 B/op Kuzma returns to his B/op cabin of bus 2558 releases park brake and commences trip Bus 2681 Location North Bondi Terminus B/op Duy Vu Khong 16:30:22 B/op Khong arrives at terminus and parks behind bus 2558 and sets down passengers . 16:30:27 B/op Mochizuki observed walking towards the front of bus 2558 16:31:11 B/op Mochizuki is observed walking away from the front of bus 2558 then turns around and heads back towards the front of the bus 16:31:21 B/op Khong shuts down bus and opens the front doors leaving the drivers seat and stepping out onto the footpath and looking towards the head of the stop 16:31:28 Raised voices can be heard on the recording 16:32:19 Bus 2558 moves forward in the layup area and B/op Khong moves bus 2681 forward then secures and shuts down the bus 16:32:40 B/op Mochizuki and another B/op approach bus 2681 and begin a conversation with B/op Khong 16:32:43 B/op Mochizuki says "I almost punched him you know" and goes on to explain he had asked B/op Kuzma to move the bus forward 16:33:12 B/op Kuzma observed walking towards the group of Bus Operators and begins yelling 16:33:30 B/op Khong is observed standing in between B/op Kuzma and the other operators placing a hand on his shoulder attempting to walk him back to his bus. B/op Kuzma continues to push past and yelling in an aggressive manner 16:33:51 B/op Kuzma begins to walk away then turns around and continues the altercation 16:34:09 B/op Kuzma is seen to walk away off camera 16:34:18 B/op Kuzma walks back onto camera and continues the same behaviour pointing and saying "you do something that dumb I fucking call supervisor". B/op Kuzma tries to push past B/op Khong again and has an inaudible interaction which finishes with "you piece of shit" then walks away 16:34:33 B/op Kuzma walks back to bus 2681 and continues the behaviour 16:35:16 B/op Kuzma walks back towards bus 2558 16:35:41 Bus 2558 moves towards bus stop 1. Mr Kamaruzzaman also conducted interviews with the appellant and with Mr Mochizuki. During the interview with the appellant, he was shown the CCTV images and given the opportunity to provide Mr Kamaruzzaman with any additional information which he wished to be considered during the investigation. 2. On 9 March 2017, Mr Kamaruzzaman summarised his findings and submitted an Investigation Report to the Reviewing Officer, Mr Rabbitt. Mr Kamaruzzaman found that the appellant had breached section 3 of the Code of Conduct and section 2.1 of the Bus Operations Handbook. Brendan Rabbitt 1. In his witness statement, Mr Rabbitt detailed the employment history of the appellant, including previous disciplinary matters which are referred to at paragraphs 14-16 above. 2. One 9 March 2017, Mr Rabbitt received the disciplinary Investigation Report, together with its attachments, from the Investigating Officer, Mr Kamaruzzamam. 3. On 23 March 2017, Mr Rabbitt met with the appellant, who was accompanied by an official of the appellant's union. During that meeting, both the appellant and his support person made submissions to Mr Rabbitt regarding an appropriate punishment. 4. Mr Rabbitt considered the Investigation Report, together with the submissions from the appellant and his support person and determined that an appropriate punishment would be three months regression to Bus Operator Level 1. In his Reviewing Officer's Report, Mr Rabbitt stated as follows: 7.1 I have reviewed the investigation report for Wieslaw Kuzma (837054) dated 9 March 2017 and note that the Investigating Officer has found the Allegations against Mr Kuzma to be proven. 7.2 I believe the Investigation has been carried out in accordance with State Transit's policies and procedures and that Mr Kuzma was afforded procedural fairness during the investigation. 7.3 I note in particular the seriousness of the matter and the breaches of the Transport for NSW Code of Conduct. Mr Kuzma's behaviour was inappropriate. Mr Kuzma's actions and the manner by which he approached another employee was abusive and threatening. I also acknowledge that Mr Kuzma failed to secure the bus at North Bondi terminus in that he left the bus running with the front door open whilst he went to confront the other driver. 7.4 I have considered Mr Kuzma's employment history and length of service. 7.5 I have also taken into consideration Mr Kuzma's claimed he was provoked by Waverley Bus Operator Mr Mochizuki. I am satisfied that there was no provocation that justified Mr Kuzma's inappropriate behaviour 7.6 Taking into account all the factors outlined above, I have determined that given the serious misconduct of Mr Kuzma's actions of engaging in inappropriate workplace conduct and failing to secure his bus, Mr Kuzma's actions warrants the punishment of Warning and Regression in Grade to a Bus Operator Level I for a period of three months. 1. With respect to Mr Rabbitt's determination of an appropriate penalty, he gave the following evidence: Q. What made you determine that a final warning was appropriate and a three month regression was appropriate punishment for the - why not twelve months? Why three months? Why-- A. Yeah, just to clarify, it was a warning, not a final warning. Q. Okay. A. So given Mr Kuzma's record in that he'd only had an official discussion, I wouldn't issue a final warning, but a warning seemed appropriate. But given the, I guess, given the concerns in relation to the two allegations, that being the unsecured vehicle and the manner in which he related to the other driver, I thought that there needed to be some financial punishment as well. Twelve months I thought was too harsh. I thought three months was a fairer punishment. Q. I calculate three months as being, at maximum, about $900. Is that what you come up with or-- A. Yeah, that's what I'd had in mind when I considered the punishment. As I said, I guess, as I said, I've been the depot manager since 2009 and I've dealt with a lot of cases and in reviewing incidents, that's sort of consistent with this sort of incident, an employee with a record where there's only an official discussion, there was nothing more significant than that. Q. So the otherwise, we won't say unblemished, but the otherwise lack of formal proceedings was something that wound back potential punishment, is that correct? A. Yeah, correct, of course. When you're looking at appropriate punishment you do look at their record and, for example, if Mr Kuzma had had a warning or final warnings, that would shape the punishment you're considering but-- Q. But because it was only a formal discussion, you decided that a final warning was too-- A. Just a warning, yeah. A final warning would've been too severe, so, yeah- Q. So then you wound that back to a-- A. A warning. Q. Just a warning? A. Yep. Q. And alternatively, why was a twelve month regression not appropriate, do you think? A. Yeah, just I thought that was too harsh, given Mr Kuzma's record. Three months, as I said, given my history and experience in dealing with these matters, it seemed appropriate. The appellant's evidence 1. The appellant completed a General Report Form in his own handwriting on the day of the incident, 13 November 2016. He stated: When waiting on bus stop on North Bondi I notice young bus driver passing by and making strong and unrespectfull gestures. I get off the bus and asked whats wrong. He started laughing. I told him if I blocking his way he should said so in more respectfull way. I told him we are bus drivers and should respect each other. His bus wasn't behind me. Which this surprised me more. We argued for few more minutes. I asked the other drivers listening conversation to explain to him his behavior is very bad and left the bus stop 1. On 2 December 2016, the appellant provided the respondent with his response to the Form E1 notice of allegations dated 28 November 2016. He stated: In response to the E1 form from 28 November 2016, I strongly deny and reject all allegations made against me. I am very aware of the code of conduct section No3 and No12. At no time did I as alleged by the complainants act in any way that was inconsistent with my obligations as employee of TfNSW. As to allegation 2, I strongly deny breaching any safety rules; I have been all the time in close vicinity to the bus. In no time I have left the bus unattended and unsecured, I was to start my next trip. I left shortly after the incident. In response to allegations No1, I like to apologize for the problems created. I acted in good faith and my intentions was noble long time ago a wise man said "hell is paved with good intentions". I felt insulted by comments made by young bus driver from Waverley bus depot. I get off the bus after he made rude comment "stupid bus drivers from Randwick depot' I told him hey enough and that we need to respect each other and he could tell me this in a more respectful manner. I understand that the video recording of the incident is not in my favor showing me arguing with another driver. I also like to point out the footage is inclusive and open for interpretation not showing exactly what happened. I was also looking for help from another driver involved in this incident, I asked him to explain to the young bus driver his behavior is simply unacceptable and rude, we can not do this to each other/ bus driver to bus driver. I was giving him a lecture about something he should learn long time ago MUTUAL RESPECT. I felt responsible and tried to correct his attitude. I made a mistake, some people never learn. Some people learning hard way like Mr. Duy Vu Khong. This usually cause a lot of stress and problems to all involved. I can't understand why but Waverley bus drivers are very territorial. They hardly accepting any other drivers specially from Randwick Depot. They like bossy us around. In video recording you can hear me try and reason with young bus driver. In no time I behaved abusive and threatening. Mr. Duy Vu Khong made threatening and UN respectful gestures towards me which was the trigger of my reaction. As you know the last few weeks was very stressful and difficult for me this has probably over loaded my sensibility to this kind of treatment and behavior. Once again I apologize for any problems and inconvenience I have caused unintentionally. It is apparent that, when the appellant prepared this written response to the allegations set out in the Form E1 notice, he had confused Mr Mochizuki with Mr Khong. 1. In his interview with Mr Kamaruzzaman on 23 January 2017, the appellant rejected the description of the incident of 13 November 2016 as an "altercation" and claimed that it "was just discussion… heated discussion with another driver ". The appellant was asked to clarify which gesture in particular from Mr Mochizuki he perceived as disrespectful. He stated: WK: When I saw him and when he passed the bus, he turned around, he looked in the bus and he realised the bus is from Randwick Depot. So he showing, "Ah you bloody bus drivers from Randwick, doing whatever you want, you're stupid" and that's it. And that's why you can see me minding my own business, even when he told me to move it I just do this like jerk, turn around and then when I heard something like that. He looked in my eyes, he was gesticulating and showing who knows his finger and the comments that's why I went out to talk to him. You can hear me telling him you can say something if you want me to because I did believe his bus was behind and I thought I was blocking him or something and I looked at him and the bus was fully on the bus stop and then I was surprised when I found out his bus wasn't even behind me and that's why I told him, "If I'm blocking you, you should say so. I don't mind to move the bus but you should say in more nice, respectful manner." You can even hear me saying that and I kept repeating this one. That was outside my bus and he come back again and come to me and we start to argue, argue, argue, argue and that's it I only think I repeat he was disrespectful. He is old enough to be my son, excuse me. I deserve respect because of my grey hair if not those things because of my age, my grey hair and we are fellow bus drivers. That's why I told him. You can hear me saying, "Look we work for the same company. I'm having a hard time all day." You can hear this on the footage because I did. It was a hot day and was so busy at Bondi Junction, Bondi Beach. That's what it was all about. 1. When the appellant was asked to clarify which gesture in particular he perceived as threatening, there was a pause in the interview so that the appellant and his support could confer. Following resumption of the interview, the appellant responded as follows: WK: The gesture to move my bus wasn't really threatening but the way he said after that, his comments were really bad, very disrespectful. His comments were about our bus drivers from Randwick Depot and our intelligence – stupid idiots and you deserve to be blah blah, bashed or something, stuff like that you know. That's what I can remember and you can hear me running after him, you can ask yourself a question why I run after the bus driver? Just something snapped in my head? Killer instinct or something like that? Or some kind of insults I heard outside my bus? 1. The appellant was then asked to clarify what caused him to exit his bus on the second occasion and re-approach the Waverley drivers. He gave the following response: WK: ... In the rear mirror, he was talking with the bus drivers from Waverley. Him making threatening gestures (WK acting out gestures)… boxing gestures. He going to show the other driver what he's going to do to me and I saw on the left hand side mirror and that's why I get out and I approach them and you can see the witness he get between us because he thought maybe I am going to fight him or something like that I say, "No I am not going to fight him, just that the moves he is doing is wrong." You can ask him. I said, "This is wrong, we shouldn't talk to each other like that" and I said "I'm not going to fight him, maybe 40 years ago maybe I will bash him but at the moment he just needs a lecture that's all." And you know many different words I don't even remember but basically it's this one. 1. In relation to Allegation 2, Mr Kamaruzzaman asked the appellant to explain the correct procedure for securing a bus. His response was as follows: WK: Bus was secure, safely stopped on the bus stop. Safety brakes were on. My key I think was even in my possession. I don't remember this exactly but I think so. Door was open that's true but I was all the time close to the bus watching the front door and other drivers were around too and if something happen, if someone tried to or intend to do something they will react and like I said I was in touching distance from my bus, so that's what I understand. Safe bus, it doesn't mean it's locked. Many drivers standing next to them and smoking cigarettes and they assume the bus is safe because they can react any time. Take me a few seconds to go to the bus if I see something. The following exchange then occurred: TK: So would you say, just yes or no, would you say that you left the bus unattended? WK: No I didn't leave the bus unattended. TK: Did you put the bus into neutral before leaving the bus? WK: Of course, I always do. TK: Did you turn the ignition off before leaving the bus? WK: Yes I did. TK: So you would say that your actions were not unsafe? WK: No, no absolutely not. I work here nearly 8 years in STA so I know the rules. 1. In his witness statement filed in these proceedings, the appellant stated as follows: 7. At around 16.30pm I drove into North Bondi terminus and parked my bus. 8. I was standing in my bus next to the driver's cabin, before my next trip was due to start, when another bus operator, Mr Jun Mochizuki from Waverley depot approached my bus near the front door. He knocked on the door and made strong hand gestures. 9. I turned myself away as he was presenting negative body language. 10. I heard Mr Mochizuki raise his voice saying "Move your fucking bus. Bloody Randwick drivers, doing whatever they want, stupid". I felt harassed and disrespected by this comment and exited the bus to see what the issue was. 11. My bus was in neutral with the safety brakes on and the ignition turned off. I had my keys in my possession. Still had a few minutes until my next bus trip. 12. I said to Mr Mochizuki words to the effect of "If I'm blocking you, you should say so in a more respectful manner. We bus drivers should respect each other as our job is hard enough without turning on each other" 13. When I asked Mr Mochizuki where his bus was parked, he refused to respond. Later I found out that his bus was parked safely on the other side of the road. If I had moved my bus forward Mr Mochizuki bendy bus would still have been unable to fit in the space left behind my bus. 14. We argued to each other for a few minutes in different locations. Both of us swore and were raising our voices. Mr Mochizuki made strong arm gestures and on many occasions waved his middle finger at me. 15. At one point during the conversation Mr Mochizuki said to me "You're stupid" and "I'd like to bash you and teach you a lesson". I felt disrespected by this and said to Mr Mochizuki "Your behaviour is disrespectful and unacceptable. If keep talking to me this way, I will report you to the supervisor". 16. I did not intend to threaten or abuse Mr Mochizuki. I only intended to explain to Mr Mochizuki the need to be respectful to one another. Multiple times I repeated words to the effect of "If you want to talk to me, be respectful". 17. At one point another Bus operator, Mr Duy Vu Khong, got involved and stopped between me and Mr Mochizuki. I said to Mr Vu Khong words alond (along) the lines of "Please help me explain to Mr Mochizuki that his behaviour is rude and that we bus drivers need to respect each one another" 18. I went back to the bus and move forward. I was about to leave when I saw through the rear mirror Mr Mochizuki making boxing gestures towards me, wanting to get my attention. He was commenting to other bus operators what he wanted to do with me. Threatening me. When I saw this I parked and exited the bus, walked towards the group of operators. 19. The safety brakes were on and I had the keys in my possession. 20. Other bus operators stopped between me and Mr Mochizuki. I said words of effect "No I am not going to fight him. This is wrong we shouldn't talk to each other like that". Mr Mochizuki continued to threaten me, by showing his fists. I said to the bus operators "Please talk to him". The other bus operator responded, "I will". 21. I walked away back to my bus and exited the terminus. 22. At all times during this incident I was close to my bus and kept my eye on the front door. I was also aware of other bus operators in the vicinity and felt that my bus was safe and secure. 23. Throughout the investigation and disciplinary process following this incident, I maintained that Mr Mochizuki behaved in an inappropriate and disrespectful manner towards me and this should be taken into account. To the best of my knowledge. No disciplinary action has been taken against any other bus operator following the incident on 13 November 2016. 1. In his evidence in chief, the appellant claimed that he did not remember if he left bus engine running when he got out of the bus on the second occasion to confront Mr Mochizuki, but claimed that he was in close proximity to the bus at all times. Determination of the appeal Allegation 1 1. In relation to the first part of the incident which occurred on 13 November 2016, the appellant claims that he was provoked by the words and gestures directed towards him by Mr Mochizuki. There are some disturbing features about the different statements made by the appellant at various times in relation to this "provocation", which I will discuss shortly. 2. According to Mr Mochizuki, he knocked on the appellant's bus, pointed at the buses behind the appellant's bus and gestured to the appellant to move his bus forward. Mr Mochizuki has consistently denied that he used "any rude word" and also specifically denied that he said words to the effect of "Randwick drivers are stupid and deserved to be bashed". 3. In the General Report Form which the appellant completed on the day of the incident, he made no reference to any alleged comments or statements made by Mr Mochizuki which the appellant regarded as provocation which caused him to get out of the bus on the first occasion and confront the provocateur. The only "provocation" at that stage of the incident, which the appellant referred to in his General Report Form, was Mr Mochizuki "making strong and unrespectfull gestures". 4. However, in his response of 2 December 2016 to the Form E1 notice, the appellant claimed that he got out of the bus after Mr Mochizuki "made rude comment 'stupid bus drivers from Randwick depot'". The appellant made no reference in this response to any alleged statement by Mr Mochizuki to the effect that "Randwick drivers… deserved to be bashed ". 5. The first occasion on which such an allegation was made was during his interview with Mr Kamaruzzaman on 23 January 2017, when the appellant was asked to clarify which gesture, in particular, of Mr Mochizuki he perceived as threatening. Following that question from Mr Kamaruzzaman, there was a brief pause in the interview during which the appellant conferred with his support person. Upon the resumption of the interview, the appellant raised, for the first time, the allegation that Mr Mochizuki had made a comment to the effect of "…drivers from Randwick Depot… deserve to be… bashed…". 6. It is more likely than not that, if such a comment had been made by Mr Mochizuki and heard by the appellant before he exited the bus on the first occasion, he would have included reference to it in his General Report Form, which he completed on the day of the incident, and in his response to the Form E1 notice which he prepared less than three weeks after the incident. However, the appellant raised this allegation, which is quite serious, for the first time during his interview with the investigator, which occurred more than two months after the incident and, only then, after he had been prompted by the investigator's question about what conduct on the part of Mr Mochizuki the appellant found threatening. 7. I reject the appellant's evidence on this issue and accept Mr Mochizuki's denial that such a comment was made by him. 8. Further, I accept that nothing Mr Mochizuki said or did, prior to the appellant getting out of the bus on the first occasion, was, or was intended to be, provocative. He was simply indicating to the appellant to move his bus further forward so that Mr Khong could also move his bus forward and not block the entry to the terminus.. 9. Nevertheless, I am prepared to accept that the manner in which Mr Mochizuki approached the appellant to move his bus was perceived by him to be disrespectful. However, even accepting that the appellant felt that he was being disrespected by Mr Mochizuki, this does not justify or excuse the appellant's response in getting out of his bus and approaching Mr Mochizuki in the extremely confrontational manner in which he did. 10. What the appellant did was an unjustified and unjustifiable overreaction which created a particularly ugly scene in a public place in clear view of fellow Bus Operators and members of the public. Even if it is accepted that Mr Mochizuki responded to the aggression which was directed toward him, the appellant bears full responsibility for this initial part of the incident. 11. In relation to the next part of the incident, when the appellant exited the bus for a second time to confront Mr Mochizuki again, the appellant claims that he was again provoked by Mr Mochizuki's "boxing gestures". The CCTV footage clearly shows that these gestures were made by Mr Mochizuki when he was in conversation with, and facing towards, two of his colleagues standing near the rear end of the appellant's bus, after the appellant had re-entered the bus and was in the driver's seat preparing to move it. These gestures were not directed towards the appellant but were observable by him in the left hand side rear view mirror of the bus. 12. I accept Mr Mochizuki's evidence that these gestures were not directed at the appellant and were not intended to provoke him, but were made in the context of the conversation that Mr Mochizuki was having with his two colleagues in which he said words to the effect of "I almost punched him". This conversation was well out of earshot of the appellant. 13. The appellant again overreacted and created another ugly scene in full view of members of the public, which involved loud swearing and required Mr Khong to repeatedly come between the two protagonists. Again, the appellant was clearly seen on the CCTV footage to be the aggressor. 14. Allegation 1 is proven to the requisite standard on the basis of the evidence before the Commission. It is clear to me that, on 13 November 2016, the appellant failed to treat his colleague, Mr Mochizuki, fairly, consistently and with respect. The appellant did not behave in a professional and reasonable manner and did not act in the best interests of the respondent (Code of Conduct – section 3). The appellant engaged in inappropriate workplace conduct and failed to treat Mr Mochizuki fairly, with dignity and respect (Code of Conduct – section 12). 15. I reject the appellant's claim that his behaviour was provoked by Mr Mochizuki. Even if it were the case that Mr Mochizuki's conduct was perceived by the appellant to be disrespectful, this can in no way justify the appellant's extreme overreaction. 16. Had Mr Mochizuki responded in kind to the appellant's aggression, the situation may well have escalated to a physical altercation, the consequences of which may well have been far more serious for the appellant than a three month reduction in classification. Allegation 2 1. In his response to the Form E1 notice, the appellant denied that he had left his bus unattended and unsecured (see paragraph 43 above). In his interview with Mr Kamaruzzaman, the appellant stated that the bus was secure, safely stopped with the safety brakes on and he thought the key was in his possession. He claimed that he was, at all times, close to the bus watching the front door (see paragraph 47 above). The CCTV footage clearly shows that this was not the case. After the appellant got out of the bus on the second occasion he can be clearly seen to be engaged in a rowdy confrontation with Mr Mochizuki, during which he was mostly facing away from the door of his bus with his attention fixed on Mr Mochizuki and, at times, on Mr Khong. 2. The appellant also claimed that he had turned the ignition of the bus off before he got out. I reject this claim. 3. On this issue, Mr Kamaruzzaman gave the following evidence, when asked why he had formed the view that the appellant had not turned the ignition off: Q. How do you know that he did not? A. From the CCTV footage. After I interviewed him I went back and looked at the footage just in case I missed it, but at that point I could quite clearly see that he had turned his bus on and at no point has he removed the keys from the ignition before taking off. All he does is apply the handbrake. Q. Can you turn the key off without removing it? A. Not on those buses, no. ……………… Q. And is that your evidence? A. Yes Q. That he doesn't turn the key off there? A. Yes, and the fact that when he finally does come back to his bus all he does is take the handbrake off and take off. He doesn't actually go through the motions of switching the bus on. Q. All right. Could we fast forward it to that point? A. See him coming back. TREGLOWN: So it's 16.34. 16.35 is probably the best. CCTV FOOTAGE PLAYED TO COURT COMMISSIONER: That's enough for my purposes. Q. So again he doesn't turn the key on? A. No, he doesn't, no. ……………….. CCTV FOOTAGE FROM BUS PLAYED TO COURT Q. Can you actually see the buttons and the gears precisely with the CCTV footage? A. It doesn't show you exactly, no. Q. So you're using assumption-- A. In terms of, sorry-- Q. --to assume that Mr Kuzma has left the bus with ignition engine on? A. No he placed his key in there, he turned the bus, when he moved the bus he never took the key out. Then later when he gets on the bus all he does is release the handbrake and drive off, that's. The bus is definitely switched on, there's no doubt about that. 1. I accept the evidence of the respondent, including the CCTV footage, which demonstrates that the appellant left the bus with its door open and its engine running. This is a clear breach of section 2.1 of the Bus Operations Handbook. 2. Further, I reject the attempt by the appellant to equate his safety breach with the actions of other Bus Operators at the scene whom, he alleged, did not remove cash trays from their buses when they got out of them. There is a world of difference, from a safety perspective, between a situation where a Bus Operator leaves a $20 float in the cash tray of the bus and a situation where a Bus Operator leaves the bus with its door open, its key in the ignition and its engine running, in order to engage in a confrontation with a colleague. This is precisely what the appellant did on this occasion. 3. Allegation 2 is also proven to the requisite standard. Penalty 1. I was advised that the difference in the base rate of pay for a Bus Operator Level 1 and a Bus Operator Level 2 for a three month period is approximately $482. It is common ground that the penalty imposed by the respondent on the appellant of a reduction in his classification for three months will result in a loss to him of approximately $900 (gross) when penalty rates and overtime are taken into account. 2. Despite the fact that I have determined that the misconduct allegations against the appellant have been proven, it is still open to the Commission, in proceedings such as these, to impose a different penalty to that imposed on the appellant by the respondent (or no penalty at all). 3. In relation to the issue of penalty, Mr Rabbitt gave evidence which is set out at paragraph 41 above. 4. In my opinion, the penalty imposed by Mr Rabbitt on the appellant was fair and reasonable in all circumstances. I see no basis for this Commission imposing a different penalty. Order 1. The Commission makes the following order: 1. The public sector disciplinary appeal by Wieslaw Kuzma is dismissed. John Murphy 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 September 2017