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. Applicable law and principles 1. Mr Semrany's employment was terminated pursuant to Regulation 30 of the Transport Administration (Staff) Regulation 2012 (TAS Regulations), which is in the following terms: 30 Disciplinary proceedings (1) A member of the Transport Service who is subject to any disciplinary proceedings is entitled to be notified in writing by the Transport Secretary of the particulars of the alleged behaviour giving rise to the proceedings. (2) A formal hearing is not required to be held before the person or body investigating or dealing with the alleged behaviour, but the member of the Transport Service who is the subject of the proceedings may make representations to that person or body. (3) The Transport Secretary may determine any disciplinary proceedings that have been instituted against a member of the Transport Service by: (a) taking disciplinary action with respect to the member, or (b) taking remedial action with respect to the member, or (c) taking no further action. 1. Regulation 29 provides for the following definitions relevant to Regulation 30: disciplinary action, in relation to a member of the Transport Service, means any one or more of the following: (a) dismissal, (b) deferral of the payment of an increment, (c) reduction of the member's salary or demotion to a lower position or grade, (d) suspension from duty without payment of salary, (e) a caution or reprimand, (f) a fine of an amount not exceeding $100. remedial action, in relation to a member of the Transport Service, means any one or more of the following: (a) counselling, (b) training and development, (c) monitoring the member's conduct or performance, (d) implementing a performance improvement plan, (e) the issuing of a warning to the member that certain conduct is unacceptable or that the member's performance is not satisfactory, (f) transferring the member to another position in the Transport Service that does not involve a reduction of salary or demotion to a lower position, (g) any other action of a similar nature. 1. The Commission's powers in a disciplinary appeal of this kind are contained in Ch 2 Pt 7 of the IR Act, which relevantly provides as follows: 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. … 100C Decisions with respect to appeals … (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (3) Without limiting the generality of subsection (2), if in relation to a disciplinary appeal it appears to the Commission that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Commission: (a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or (b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer. (4) The decision of the Commission in respect of an appeal is, except as provided by section 197B, final and is to be given effect to by the employer against whose decision the appeal was brought. 1. In public sector disciplinary matters, the Commission is required to conduct a fresh hearing of the evidence to determine the facts based on the evidence. That is to say, I am not to simply conduct a review of the Decision. Rather, as set out in the decision of Marroun v State Transit Authority (2017) 96 NSWLR 295 at [35]: In colloquial terms, an appeal by way of fresh hearing means that the appellant body "stands in the shoes" of the original decision-maker. Where there is, as here, a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed. Generally, it is assumed that the appellant body has the same powers as the original decision-maker, no more want and no fewer. One basis for the inference is a use of the term "appeal" to describe what is in substance a fresh hearing. 1. The Commission's task in these proceedings, is to first determine whether the relevant misconduct occurred. The second step is to determine whether, in the Commission's view, the punishment is appropriate: see Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86 at [54]. 2. I further note that Marroun confirmed the proposition that post-decision events or conduct may be relevant to the consideration of penalty, but not to the consideration of the essential precondition to the imposition of a penalty, namely whether the disciplinary charge has been proven. Accordingly, if the Commission allows the appeal the Commission may consider post–decision events or conduct in determining whether some other form of disciplinary action is appropriate: see Maritime Services Board v Murray (1993) 52 IR 455. 3. I note that in exercising its jurisdiction in public sector disciplinary decisions, the Commission is exercising a protective function: see Marroun at [21] and Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 at [173]. 4. I accept the submission of the Appellant that the principles espoused in Briginshaw v Briginshaw (1938) 60 CLR 336 apply. Background 1. It was alleged by the Respondent that on 16 September 2018, Mr Semrany failed to operate his bus service in a safe manner. In particular he was alleged to have closed the centre doors of the bus prematurely when passengers were alighting. 2. The Respondent became aware of this alleged conduct from a passenger on the bus that day who was not directly involved in the incidents who emailed her complaint directly to the Respondent's Media Manager the day after the alleged events. This was then forwarded to the Executive Director of Customer Operations who delegated it to Mr Semrany's home depot, Randwick, for further investigation. 3. On the same day the complaint was received, Mr Semrany was interviewed by Mr Roderick Primerano the Depot Director at Randwick. At Mr Primerano's request, Mr Semrany then submitted a document titled "General Report" to the Respondent in respect of the alleged events, stating (among other things), "I did not deliberately close doors or endanger anyone." 4. The day after the complaint was received, Mr Semrany was suspended with pay for the alleged breaches of State Transit Policies. 5. On 20 September 2018, Mr Semrany was issued with a document titled "Form E1" by the Randwick Depot Director alleging that he had operated his bus in an unsafe manner on 16 September 2018. Mr Semrany provided a written response to the Form E1 dated 23 September 2018 ("the written response"). 6. The written response was handwritten and titled "To: The Micro Managers etc" and was in the following terms: "Having been employed with Sydney buses for over 34 years, it greatly concerns me that I could even be considered to be a unsafe or negligent driver purposely or otherwise – I am not a Liability. I have taken great pride in my position as a Sydney bus driver, courteous, engaging positively with public and staff. I would never endanger anyone's health or safety, being a father of 6 children a grandfather of 4 and God-father to over 30 children, I am deeply disappointed and distressed. To all the alleged charges I vehemently and adamantly deny, I did not Entrap anyone nor was anyone entrapped at any time the video shows this. No "Entrappment." You must be very careful how to use the word "Entrappment". I did not render assistance or call or report the incidents because none was needed. 1) asked for 2) no one approached me 3) I was not aware or made aware of the need too. 4) I am and was not abusive or ever have been to anyone – always obliging to help or render assistance. A person did Bellow and act towards me in a most vile aggressive tone, I did not get out of my seat or respond abusively all I said was I am doing the best I can that the vision is obstructed by the position of poles and where people are standing. The person bellowed at me as if I were a Pig and a Piece of Garbage – I remained calm. This has left me feeling depressed, anxious and deeply distressed – especially the lack of support by the Employer who I have given 34 years to. I have sought professional help and have been advised to seek legal advice need to be – I challenge the third or 2nd party accuser to personally come forward and make claim and cowardly hide behind a 1) uncaring employer 2) a customer is right system A system that Micro Managers Good men and women into a state of depression and lack of self-esteem – forcing the worst possible outcome for families "death". I have done nothing wrong regardless of any complainant may think or say. I am a Excellent driver and caring driver. A respectful driver. I love the people I work with and my employment, the staff at Randwick the management but this Continuous Harassment deliberate or not this Victimisation this hounding has to stop. Please. Please. Before it is too late. God bless you all David Semrany PS have I will need to be supplied with the name of my accusers, I have a legal right to defend myself, and my accuser 2nd or 3rd party must be identified. 1. Mr Kamaruzzaman, Depot Director, North Sydney was appointed to conduct an investigation into the Closing Doors allegations and he interviewed Mr Semrany on 6 November 2018. During the interview, Mr Semrany stated that as far as he was concerned, it was safe for him to close the doors when he did and that he had done "everything according to the safety regulations." He also maintained that he was being micromanaged by the Respondent stating that "the system is micromanagement and it's not only in State Transit, it's across the board. And what they do, they scrutinize every little thing we do. We get pulled in for an incident and like right now, you're asking me a million questions about different things." 2. On 12 December 2018 Mr Kamaruzzaman completed his investigation which was shortly thereafter passed on to Mr Brendan Rabbitt, Depot Director, Botany Bay who was the decision maker in the matter. 3. On 18 January 2019 Mr Rabbitt met with Mr Semrany to discuss the outcome of the investigation and provide him with a further opportunity to make submissions. 4. Despite Mr Semrany's representations, Mr Rabbitt decided to terminate his employment and issued a Notice of Punishment to this effect dated 29 January 2019. The Respondent's case 1. The Respondent relied upon evidence from the following witnesses at the hearing: 1. Mr Tanveer Kamaruzzaman, Depot Manager, North Sydney. Mr Kamaruzzaman completed the investigation into the Closing Doors allegations; 2. Mr Brendan Rabbitt, Depot Director, Port Botany. Mr Rabbitt was the Reviewing Officer in respect of the Closing Doors allegations. He was the officer who made the decision that the Closing Doors allegations were sustained and the decision to terminate Mr Semrany's employment; and 3. Mr Roderick Primerano, Depot Director Randwick within State Transit. As the Depot Director at Mr Semrany's home Depot, Mr Primerano gave evidence about the disciplinary history of Mr Semrany, the Respondent's knowledge of his personal circumstances at relevant times and the support provided to him by the Respondent in view of those circumstances. 1. All of the Respondent's witnesses were subject to cross-examination. I found each of the Respondent's witnesses to be reliable, giving clear and consistent evidence under cross-examination. 2. The Respondent relied upon written and oral submissions. In summary the written submissions: 1. argued that the there was a factual basis upon which the Closing Doors allegations could be made out with reference to the CCTV footage in evidence. In particular, the Respondent's alleged that on 16 September 2018, while operating his bus: 1. Mr Semrany did not observe the centre doors when closing them resulting in them closing on a female passenger and a child. 2. The female passenger had to force the doors to reopen, resulting in Mr Semrany having to close the doors for a second time. 3. Following the incident Mr Semrany failed to check on the welfare of these two passengers. 4. On a separate occasion Mr Semrany closed the centre doors while there was a passenger clearly visible in the doorway. This resulted in an elderly woman being struck by the doors. 5. Following the incident Mr Semrany failed to check on the welfare of the passenger. 6. Following these two incidents Mr Semrany engaged in an argument with another passenger travelling on the bus. 7. Mr Semrany failed to report any of the incidents to the network control centre or the depot. 8. These actions demonstrated a reckless disregard for safety. 9. Mr Semrany's disregard for safety had the potential to cause serious injury to the passengers involved. 1. argued that the conduct of Mr Semrany in respect of the Closing Doors allegations constituted breaches of the Transport Code of Conduct, in particular the following sections: 1. Section 3, Staff Responsibilities; 2. Section 5, Ethical Decision Making; and 3. Section 9, Workplace Health and Safety. 1. submitted that Mr Semrany was afforded procedural fairness through the disciplinary proceedings relating to the Closing Doors allegations; 2. submitted the punishment of dismissal was fair, noting: 1. a failure to follow safety procedures is a breach that must be sanctioned; 2. Mr Semrany committed an offence which is serious in nature and his actions demonstrate a complacent attitude towards the safety of his passengers when alighting the bus; 3. Mr Semrany received two formal warnings in 2018 relating to the safe operations of State Transit vehicles, and also provided a written undertaking to improve his performance in the area of safety; and 4. Mr Semrany had been given ample opportunity to improve performance in the preceding 12 months, and was aware of the consequences of any further safety breaches. 1. submitted that the Commission should not disturb the decision to dismiss Mr Semrany. 1. It is worth noting that the particulars alleged in respect of how the actions of Mr Semrany constituted a breach of the Code of Conduct in the Respondent's submissions were not consistent with the findings in the investigation which was relied upon by the decision maker, Mr Rabbitt. What Mr Rabbitt found was that Mr Semrany had breached the Code of Conduct in respect of sections 3 (Staff Responsibilities) and 9 (Workplace Health and Safety). He did not make a finding that there was a breach of section 5 (Ethical Decision-Making). 2. Further the Investigation Report completed by Mr Kamaruzzaman and presented to Mr Rabbitt found that the CCTV showed that Mr Semrany was in fact observing the centre doors at the time of the alleged incidents and noted that with respect to the argument with the passenger alleged, there was no audio available to verify what was said and the tone in which it was said. Mr Rabbitt gave evidence that he relied upon the Investigation Report in making his decision. Mr Appellant's case 1. In addition to giving evidence in respect of his own case, Mr Semrany relied upon evidence from Mr Jakob Brzezinski, Bus Operator for the Respondent. Mr Brzezinski gave evidence with respect to the difficulties he has experienced with ensuring that the centre doors of his bus are clear when he is working. His statement attached two photographs of a bus depicting the set-up of the mirrors directed at the centre doors. 2. Both Mr Semrany and Mr Brzezinski were subject to cross-examination. 3. I found Mr Brezezinski to be a reliable and honest witness, giving testimony that both assisted and hindered the Applicant's case as appropriate. 4. On the other hand, Mr Semrany did not present as a reliable witness. For example, he initially gave evidence that he could not recall having been the subject of formal disciplinary action until March 2018. This is not believable when considered against his extensive disciplinary history. 5. The statement of Mr Primerano attached documents in response Mr Semrany's statement that, "throughout my 35 years of employment with STA, I cannot recall being the subject of any formal disciplinary action until March 2018." These included: 1. a notice of punishment and final warning dated 15 December 2006 for failing to maintain a satisfactory cash account; 2. a notice of punishment and final warning dated 26 September 2007 for failing to pull over to the side of the road and park safely while using the two-way radio system to answer a call from the radio room; 3. a notice of punishment and warning dated 20 November 2008 for failing to perform his rostered duties; 4. a notice of punishment and regression in grade to a Bus Operator Level I for a period of 12 weeks for failing to maintain a satisfactory cash account dated 25 June 2010; 5. a notice of punishment indicating a suspension from duty without pay for a period of one week for failing to sign on at the allocated time of his shift dated 22 December 2011; 6. a notice of punishment dated 25 June 2012 suspending Mr Semrany from duty without pay for failing to operate in accordance with his rostered work; 7. a performance discussion letter dated 6 January 2014 relating to service reliability and on time running non conformances; 8. a warning letter dated 27 May 2014 requiring Mr Semrany to undertake a one day driver retrain course for having an unacceptable driving performance record; 9. a letter in respect of Mr Semrany's counselling for failing to comply with the terms and conditions of his employment as listed in the Accident Procedures in the Bus Operations Handbook dated 14 July 2014; 10. performance discussion letter dated 20 February 2015 with respect to a performance discussion for service reliability and on time running non conformances; 11. a performance discussion letter dated 23 May 2016 with respect to service reliability and on time running non conformances; 12. a warning letter dated 28 July 2016 in respect of exceeding the speed limit by over 10 km/h; 13. a warning letter dated 2 September 2016 in respect of poor service reliability and on time running; and 14. a performance discussion letter dated 18 September 2017 requiring Mr Semrany to undertake a one day driver retrain for having an unacceptable driving performance record. 1. Additionally, Mr Semrany gave evidence that he was not aware that there had been an incident in respect of the centre doors on 16 September 2018. This was not believable when considered against his own account that a passenger had bellowed at him, "Back Door, Back Door" after the second closing door incident. 2. Mr Semrany also relied upon both written and oral submissions. In summary, Mr Semrany's submissions: 1. argued that the allegations were not established with sufficient clarity to justify dismissal; 2. put that the dismissal of Mr Semrany was harsh and disproportionate considering Mr Semrany's personal circumstances; 3. addressed the allegations as they were put against Mr Semrany in the particulars of the original investigation, including that; 1. he failed to observe the centre doors; 2. he did not check the welfare of the passengers; and 3. that he argued with a passenger. 1. argued none of the particulars of the allegations above at (3) could be made out. 2. set out the dire personal circumstances of Mr Semrany; 3. ultimately submitted that; 1. Mr Semrany's actual misconduct amounts to accidental errors which are at least in part explained by the surrounding circumstances; 2. there is significant doubts surrounding the way the allegations have been put by the Respondent, particularly given it is an attempt to justify such harsh punishment; and 3. termination would have a severe impact on Mr Semrany's life and will be an unmitigated disaster for him and that this is a factor upon which the Commission should place significant weight. The Appellant has not been denied procedural fairness 1. Both the Appellant and the Respondent gave submissions to the Commission with respect to the extent to which the Appellant was provided with procedural fairness during the course of the investigation. In particular, the Appellant raised the fact that the particulars of the allegations as contained in the E1 Form and the Investigation Report were not made out. 2. Certain particulars of the allegations put to the Appellant were not made out when considered by the Respondent in their investigation including that Mr Semrany did not observe the centre doors at relevant times and that he engaged in an argument with a customer. However, this did not lead to a denial of procedural fairness to the Appellant. The Appellant was aware of the substance of the allegation – that he had operated his bus in an unsafe manner on 16 September 2018 when he closed the centre doors prematurely. The Appellant was given every opportunity to address the circumstances of the Closing Doors allegations during the Respondent's investigation and then before the Commission in these proceedings. 3. In any event, s.100C of the IR Act provides that a finding of a denial of procedural fairness in a public sector disciplinary matter does not require the Commission to allow an appeal. The Closing Doors allegations 1. The Notice of Punishment issued by Mr Rabbitt details the breach findings as follows: On Sunday, 16 September 2018, you breached section 3 and 9 of the Transport Code of Conduct when you failed to operate bus 1870 in a safe manner. This behaviour is misconduct for which punishment may be imposed under the terms of clause 30 of the Transport Administration (Staff) Regulation 2012. 1. Section 3 of the Code of Conduct is titled staff responsibilities and relevantly provides: "You are responsible for familiarising yourself with agency policies and procedures, and complying with them. You need to be aware that the reputation of the transport agencies can be affected by your actions at work… 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; - comply with agency policies and procedures, as well as relevant legislative and industrial requirements that apply to you; - understand the duties, responsibilities and accountabilities of your role and perform these safely, honestly, courteously and fairly; - make impartial decisions that demonstrate your agency's values and promotes confidence in the integrity of public administration." 1. Section 9 of the Code of Conduct is titled Workplace Health and Safety and relevantly provides: "We prioritise safety, and are committed to providing a safe workplace and safe culture for our staff, customer, suppliers and visitors in accordance with the Work Health and Safety Act 2011 (NSW), Rail Safety (Adoption of National Law) Act 2012 (NSW), Rail Safety National Law (NSW), Passenger Transport Act 1990 (NSW) and the Maritime Safety Act 1998 (NSW). You must be familiar with and, as far as reasonably able, adhere to your agency safety policies, procedures and guidelines which provide additional information on your obligations under relevant legislation. You should consider safety in everything you do. We all play a part in making sure that as far as reasonably practicable, our work environment is safe and free from hazards. This includes ensuring our customers experience safe, clean and reliable passenger services, working safely and preventing circumstances that may endanger our colleagues. Without limiting the application of relevant health and safety legislation your agency must ensure so far as is reasonable practicable, your health and safety and that the health and safety of other persons is not put at risk from agencies work. As a staff member, you are required to: - take reasonable care of your own health and safety; - take reasonable care that your acts or omissions do not in adversely affect the health and safety of other persons; - comply, so far as you are reasonably able, with any reasonable safety instructions; and - co-operate with any reasonable agency policy or procedure relating to health or safety at the work that has been notified to you." 1. Further, the Respondent has in place a Bus Operations Handbook which relevantly provides: "10.2 Operating Doors a. Operators must ensure front and centre doors are clear of customers before closing the doors. The doors must be fully monitored till they are fully closed. 1. It is necessary for me to step into the shoes of the decision maker, Mr Rabbit to consider the Closing Doors allegations and make a decision as to whether these can be made out against Mr Semrany. I am to decide whether Mr Semrany breached the Transport Code of Conduct by failing to operate his bus in a safe manner. This is a fresh hearing and I am to take into account the evidence that was put before me by the parties. 2. This will require that I resolve the following questions of fact: 1. Did Mr Semrany close the centre doors on 16 September 2018 when passengers were not clear of the doors? 2. Was Mr Semrany's view of the centre doors obstructed at the relevant times on 16 September 2018? 1. I note that during the investigation and at the hearing the Respondent also alleged that Mr Semrany knew he had struck the passengers and that he had engaged in an argument with another passenger. They argued that Mr Semrany should have checked on the welfare of the passengers and reported the incidents to the Respondent. I have found it unnecessary to resolve these matters given the findings I have made with respect to the two questions above. Mr Semrany closed the centre doors on 16 September 2018 when passengers were not clear of the doors 1. In evidence was CCTV footage recording the relevant events of 16 September 2018. These were played before the Commission during the hearing. In addition Mr Kamaruzzaman gave oral evidence with respect to what the CCTV footage depicted. 2. The footage shows that at approximately 9:07 am, the bus operated by Mr Semrany stops at a bus stop near Central Station. Mr Semrany can then be seen operating the centre doors whilst a male passenger, a small child and a female passenger alight the vehicle. It can be seen that the centre doors start closing while the passengers remain within the bus and as a consequence the female passenger and child are struck by the bus doors. Having struck the passengers the doors open again. The doors can then be seen closing again. There is no interaction between Mr Semrany and the passengers involved in the incident and immediately after closing the centre doors a second time, Mr Semrany continues on with his bus route. 3. At approximately 9:09 am Mr Semrany's bus can be seen stopping at Elizabeth Street near Hay Street. The centre doors start to close whilst an alighting passenger is still partially in the bus, with her hand on the rail of the centre doors. The CCTV footage is not conclusive as to whether the passenger's backpack is struck by the doors. The centre doors re-opens and closes again. 4. Under cross-examination, Mr Semrany admitted that the CCTV footage depicted that the doors closed whilst the passengers remained on board on both occasions in question. However he did not concede that this constituted a breach of the Bus Operations Handbook. Rather what he put to the Commission was that he did the best he could. He said that he took pride in his job and the safety of others and always sought to ensure the safety of passengers. Noting that he monitored the centre doors, he gave evidence that, "There is not one thing I could change except maybe now in hindsight take a bit longer. That is about it." 5. The evidence is clear that Mr Semrany closed the doors of his bus when the passengers were not clear of the doors on two occasions on 16 September 2019. 6. This occurred while Mr Semrany was observing the mirrors of the bus. Consistent with the submissions put by both parties, I find that Mr Semrany did not deliberately intend to strike the passengers. Mr Semrany's view of the centre doors was not obstructed 1. I was invited by Mr Semrany to make a finding that his view of the centre doors was likely obstructed when he prematurely closed the doors ("the obstruction submission"). 2. On this, Mr Semrany gave evidence that although he did not recall the events of 16 September 2018, he must not have been able to see the centre doors area to ensure that it was clear prior to closing those doors because his practice was to ensure the area was clear before closing the doors. Mr Semrany gave evidence that on this particular trip, he was having difficulty with passengers standing around the centre doors, and that this obstructed or impaired his vision. 3. Mr Semrany gave evidence that if at any point during the trip his vision of the doors became obstructed he would, "buzz up and ring up and get a change over." He further gave evidence that he would not operate the centre doors if it was not safe to do so and nor was he expected to, confirming his understanding that safety is paramount for passengers. 4. So in effect, the obstruction submission required the Commission to make a finding that Mr Semrany's vision of the centre doors was obstructed, but that he was unaware of this at the time. 5. In support of the obstruction submission, Mr Semrany sought to adduce evidence that the bus mirrors could have been knocked out of alignment. 6. The only direct evidence with respect to the question of whether Mr Semrany's view of the centre doors was obstructed was the CCTV footage.There is no obvious obstruction to Mr Semrany's view of the centre doors area from the footage and Mr Semrany did not point to any particular obstruction or person in the CCTV footage impeding a clear view during the hearing. The footage did not show Mr Semrany straining to gain a better view of the centre doors area or him looking over his shoulder to directly view this area which might be expected if his view of the area was obstructed or otherwise impacted by the alignment of the mirrors. 7. Under cross-examination Mr Semrany gave evidence that before leaving the depot he is required to undertake a pre-departure check and that that this includes a check of the mirrors including the ones showing the centre doors to ensure that he has full vision. He confirmed this would have happened on 16 September and when he left the depot the mirrors would be operational. He gave evidence that he would not normally adjust the mirrors at the centre doors during the pre-departure check as, "these are too high, some of them are too high." 8. In support of the obstruction submission, Mr Semrany tendered into evidence a statement of Mr Jakob Brzezinski, a Bus Operator with 8 years' experience driving for the Respondent. His evidence was that in his experience as a driver, being able to observe the centre doors when passengers are alighting can be difficult. Relevantly, his evidence was that: 1. it is very easy to miss things when checking the centre doors by the mirrors, giving examples of people rushing out the doors, sneaking onto the bus without paying via the back doors, the lighting at night in the bus reducing visibility and people standing in the 'no standing' area adjacent to the centre doors; and 2. sometimes passengers brush past the centre doors mirror and knock it out of alignment, meaning you can only see half of the doors or even nothing at all. If this happens you have to rely on the bulkhead mirror at the front, which does not provide as clear a view as the centre mirror; 1. None of the examples or reasons why it can be difficult to monitor the centre doors referred to by Mr Brzezinski above in [59](1) was relevant to the circumstances of the Closing Doors allegations. 2. Under cross-examination, Mr Brzezinski's gave evidence that a driver would know if their vision of the centre doors was obstructed. 3. The Respondent adduced oral evidence from Mr Kamaruzzaman and Mr Primerano that it is difficult for the centre doors mirror to be knocked. 4. I find on balance Mr Semrany's view was not obstructed and that he was able to observe the alighting passengers in the centre doors area when he closed the doors. In this regard, I note that the CCTV footage does not support the obstruction submission. Further, I accept the evidence of Mr Brzezinski's; that a driver would know if their vision of the centre doors was obstructed and therefore Mr Semrany would have known if his mirrors were misaligned. 5. In any event, if Mr Semrany's view was obstructed, he should have known this and not operated the centre doors, putting the passenger's safety first consistent with the Respondent's policies. Mr Semrany breached the Transport Code of Conduct on 16 September 2018 1. Having made the above findings with respect to Mr Semrany having closed the centre doors prematurely on 16 September 2018 and that his view of the centre doors area was not obstructed, I am led to the conclusion that Mr Semrany operated his bus in an unsafe manner and that he did breach the Transport Code of Conduct. 2. In particular, I find that Mr Semrany breached section 3 of the Code of Conduct (staff responsibilities) in that he did not comply with the agency's Bus Operations Handbook where it requires that Bus Operators "must ensure front and centre doors are clear of customers before closing the doors. The doors must be fully monitored till they are fully closed." Further I find that he breached section 3 of the Code of Conduct where it requires that Bus Operators "understand the duties, responsibilities and accountabilities of your role and perform these safely, honestly, courteously and fairly" (my emphasis). Mr Semrany did not operate his bus in accordance with his duties, responsibilities and accountabilities on 16 September 2018 and he did not perform in a manner that was safe. 3. Based on the above, I also find that Mr Semrany breached section 9 of the Code of Conduct (Workplace Health and Safety) in that he did not prioritise safety and acted contrary to a commitment to provide a safe journey for his customers. Mr Semrany did not; 1. take reasonable care to ensure that his acts or omissions do not adversely affect the health and safety of his passengers; nor 2. comply with a reasonable agency policy, procedure and safety instruction, namely the requirements contained in clause 10.2 of the Bus Operations Handbook. 1. Having determined that Mr Semrany breached the Code of Conduct on 16 September 2018 by not operating his bus safely, I now turn to consider what if any action should be taken with respect to Mr Semrany in view of my findings. What is the appropriate outcome? 1. In considering the appropriate outcome in public sector disciplinary appeals, the Commission is exercising a protective function. In this regard I note that the Transport Administration Act 1988 provides at section 20 A that: "(1) The principal objectives of the State Transit Authority are: (a) to operate efficient, safe and reliable bus services and Newcastle ferry services, and (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the Authority, and (c) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, and (d) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6 (2) of the Protection of the Environment Administration Act 1991, and (e) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates. (2) Each of the principal objectives of the State Transit Authority is of equal importance. (my emphasis) 1. The Respondent and Appellant sought to characterise the gravity of the conduct of Mr Semrany in respect of the Closing Doors allegations in different ways. Mr Semrany submitted that any actual misconduct may be described as "accidental errors" which are at least in part explained by the surrounding circumstances. On the other hand, the Respondent submitted that Mr Semrany committed an offence which is serious in nature and his actions demonstrate a complacent attitude towards the safety of his passengers when alighting the bus. 2. Mr Semrany's actions on 16 September placed his passengers at risk of injury and this is not a trivial matter even if it was accidental on his part. It did demonstrate a complacent attitude with respect to the importance of passenger safety which was also evident in the way Mr Semrany engaged in the investigation process with the Respondent. At various times during the investigation process Mr Semrany did not accept that he placed the safety of customers at risk through his actions. Indeed, during the course of the investigation he accused his employer of subjecting him to micromanagement by raising the incidents and insisted that he had done nothing wrong. 3. Although the Closing Doors incidents were serious, if it were an isolated breach of safety protocols, it may not of itself warrant dismissal. But that is not this case. 4. The Applicant had been the subject a number of disciplinary actions during his employment with the Respondent. However, the disciplinary matters most relevant to the appropriate outcome in this matter are those most proximate to the termination of his employment, for like conduct, namely safety breaches. I have not taken disciplinary matters more than a year prior to Mr Semrany's termination into account in deciding the appropriate punishment in this matter, other than to find that Mr Semrany is unable to claim that he had worked for a period of approximately 34 years before being the subject of any formal disciplinary actions. 5. On 29 March 2018, Mr Semrany received a final warning and a regression in grade to a Bus Operator Level 1 for a period of 6 months for operating a State Transit Vehicle in an unsafe manner while using a mobile phone ("the Mobile Phone Final Warning"). 6. About six weeks later, on or around 9 May 2018, Mr Semrany received a warning for driving a bus through a red traffic signal and failing to ensure that school children boarded his bus did so in a safe manner ("the Red Light and Safe Boarding Warning"). In a report signed by Darren Baker, Depot Manager, Burwood Depot dated 9 May 2018 titled, "REVIEWING OFFICER'S COMMENTS AND DETERMINATION OF PUNISHMENT DAVID SEMRANY RANDWICK BUS OPERATOR", after setting out the Red Light and Safe Boarding incidents, noting the remorse show by Mr Semrany and the fact that he was on a Final Warning and serving 6 month regression in grade as a result of the Mobile Phone Final Warning, the officer expressed concern that if given another chance, Mr Semrany "would put the previous matters out of his mind as he seems to have in the past; and breach again." The letter concludes: I would suggest that Mr Semrany give a formal written under taking that his performance around safety will change immediately and if an undertaking is not forth coming, based on the evidence presented to me, including consideration of his current punishment I would determine that the appropriate punishment warrants Termination of Employment with State Transit Authority. If Mr Semrany provides a written under taking to improve in these areas I would suggest that Mr Semrany be reissued a Final Warning and an extension of his 6 month regression, for a further 6 months on completion of the current one, taking his regression out to 12 months lapsing on 11 April 2019. 1. Presumably in response to the recommendation of Mr Baker, in a letter to Mr Primerano, Depot Director at Randwick signed by Mr Semrany and dated 10 May 2018, Mr Semrany states: Dead Rod, I understand the seriousness of the matters in which have caused my employment status to be reviewed recently. I fully understand that my termination was being considered during this period and as a result would like to convey to you that I am aware of how lucky I am to still be employed by State Transit. Having gone through this traumatic process I understand the offer put before me and give you an undertaking that I will in future commit to demonstrating safe work practices and will take every possible step to conduct myself to the standards required in the area of safety. I also understand should I not meet these required standards and come under notice for unsafe work practices it will result in my dismissal. Thanking you David Samrany 1. Whilst it was uncontested evidence that Mr Semrany was issued with a warning on about 9 May 2018, there was no evidence that Mr Semrany was reissued with a Final Warning and his regression in grade extended as was suggested in the report of Mr Baker. However, it is apparent that Mr Semrany was squarely on notice that his employment was in jeopardy and any future transgressions relating to safety would likely result in the termination of his employment. I say "likely" rather than "would" result in the termination of his employment only because he had received the Mobile Phone Final Warning which was similarly clear that he would lose his job if he was found to have driven unsafely again, yet when this occurred his employment was not terminated. 2. Indeed, Mr Barker's concerns that Mr Semrany would "put the previous matters out of his mind as he seems to have in the past; and breach again" was well founded. 3. Despite the precariousness of his employment situation and the undertaking he gave on 10 May 2018 to the Respondent, Mr Semrany was found to have again driven in an unsafe manner and contrary to the road rules with the Respondent receiving an infringement notice issued by the Office of State Revenue on 4 July 2018 (that is, about eight weeks after the undertaking was given). On this occasion, Mr Semrany drove a State Transit vehicle at a speed of 62 km/hr in a 40 km/hr school zone ("the Speeding in a School Zone incident"). 4. Again, Mr Semrany was shown leniency and his employment was not terminated. Instead, as a consequence of the Speeding in a School Zone incident, Mr Semrany was issued with a letter dated 10 September 2018 from Mr Primerano and signed by Mr Semrany titled, "Final Warning and Regression in Bus Operator Level 1 6 months"("the Speeding in a School Zone Final Warning Letter"). The letter relevantly states: Recently you were issued a Final Warning letter in April 2018 when you drove a bus through a red traffic signal and failed to ensure school children to board your bus in a safe manner. You have once again failed to comply with Section 3 of the Transport for NSW Code of Conduct and State Transit policies. After carefully considering your response to the E1 and a review of your employment history, it has been decided to provide you one final opportunity to demonstrate that you can perform your duties and deliver customer service to the expected competency level required of a State Transit Bus Operator. You are to regard this letter as a Final Warning in that any further breached of State Transit policies or procedures will result in you dismissal from State Transit. Please treat his matter as extremely serious and remember your future with State Transit is now in your hands and an immediate and sustained improvement in your performance is required. 1. The events which led to the decision to terminate Mr Semrany's employment occurred less than a week after the Speeding in a School Zone Final Warning Letter was issued. 2. It must be noted that Mr Semrany has had a very long period of service with the Respondent and this is a relevant factor that I have taken into account. 3. I have also considered the personal circumstances of Mr Semrany, both at the time of the dismissal and as it was at the time of the hearing. At the time of the hearing of the matter, Mr Semrany remained homeless, taking refuge at a Catholic Church. He also remained unemployed, working as a driver for a charity on a voluntary basis. Whilst Mr Semrany's personal financial circumstance are dire, he conceded at the hearing that he had not sought to mitigate his losses and had not attempted to find paid employment since the termination of his employment with the Respondent. 4. Mr Semrany's personal circumstances are concerning. However, there must be a point at which he is held accountable for his poor performance, especially where the safety of the travelling public is in issue. The Applicant has been given many chances to improve his performance, in the face of the clear threat of dismissal if those improvements did not occur. Unfortunately, the evidence shows that he has not been able of make the changes to his performance required to ensure the safety of the public while he is executing his duties. 5. Accordingly, I have found that the appropriate disciplinary action in this matter is dismissal. 6. It was put to the Commission for the first time during the closing submissions of the Appellant that if I was concerned that he could not be re-instated as a Bus Operator due to safety concerns, he might be redeployed into a different role. There was no evidence before the Commission that would enable such an order to be made. In any event, it would not be an appropriate outcome in this matter given the matters I have outlined above. Accordingly, I dismiss the Appeal. Janine Webster 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: 26 June 2019