Semrany v State Transit Authority [2019] NSWIRComm 1042

Industrial Relations Commission New South Wales Medium Neutral Citation: Semrany v State Transit Authority [2019] NSWIRComm 1042 Hearing dates: 7, 8 May 2019 Date of orders: 26 June 2019 Decision date: 26 June 2019 Jurisdiction: Industrial Relations Commission Before: Webster C Decision: Appeal dismissed Catchwords: Public sector disciplinary appeal - Bus Operator - dismissal – safety of customers - recent final warnings - effect of final warning on consideration of appeal - facts of misconduct made out - appeal dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86 Marroun v State Transit Authority (2017) 96 NSWLR 295 Briginshaw v Briginshaw [1938] HCA 34 NSW Health Services Northern Sydney Local Health District v Hargraves [2012] NSWIRComm 123 Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 Category: Principal judgment Parties: Rail, Tram and Bus Union of NSW on behalf of Mr David Semrany - Appellant State Transit Authority - Respondent Representation: Ms S Harper of Hall Payne Lawyers – Appellant Ms J Willingham & Ms A Phan - Respondent File Number(s): 2019/00038992

Decision 1. Mr David Semrany (the Appellant) had worked as a Bus Operator for State Transit Authority (the Respondent) for 35 years when his employment was terminated on 29 January 2019. 2. The decision to end the employment relationship was taken by the Respondent after it found that on Sunday, 16 September 2018, Mr Semrany, closed the centre doors of his bus prematurely, on two separate occasions, minutes apart, with passengers being struck on at least one of those occasions (the Closing Doors allegations). 3. Within the six months prior to the alleged conduct, Mr Semrany had been disciplined by the Respondent for speeding in a school zone (62 km in a 40 km zone), running a red light, allowing children to board his bus in an unsafe manner and using his mobile phone while operating his bus. As a consequence of these incidents, he had received two final written warnings, was regressed from a Grade 2 to a Grade 1 Bus Operator for a period of six months and had given a written undertaking to improve his performance in the area of safety. 4. Mr Semrany has appealed against the Respondent's decision to terminate his employment pursuant to section 98 of the Industrial Relations Act 1996 (NSW) (IR Act). 5. I have decided to dismiss the appeal for the reasons set out below.