McAuliffe v The Transport Secretary on behalf of the State Transit Authority [2020] NSWIRComm 1017

Industrial Relations Commission New South Wales Medium Neutral Citation: McAuliffe v The Transport Secretary on behalf of the State Transit Authority [2020] NSWIRComm 1017 Hearing dates: 3-4 December 2019 Date of orders: 16 March 2020 Decision date: 16 March 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: The applicant is reinstated. No order is made for back pay. Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – Bus Operator – use of mobile phone while on duty – whether conduct amounted to misconduct warranting termination of employment – misconduct established - dismissal disproportionate to misconduct – no back pay – employer entitled to expect compliance with policies and procedures – nature and gravity of conduct, length of service, remorse and contrition and employment record considered Legislation Cited: Industrial Relations Act 1996 (NSW) Passenger Transport Regulation 2017 Road Rules 2008 Road Rules 2014 Transport Administration Act 1988 Cases Cited: Feldman v State Transit Authority [2014] NSWIRComm 1017 Harbour City Ferries Pty Ltd v Mr Christopher Toms [2014] FWCFB 6249 Marroun v State Transit Authority (2017) 96 NSWLR 295 Mr Nigel Sclater v Transdev Harbour City Ferries Pty Ltd t/as Transdev Harbour City Ferries [2019] FWC 7968 Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86 Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749 Category: Principal judgment Parties: Gerard McAuliffe (Appellant) The Transport Secretary on behalf of the State Transit Authority (Respondent) Representation: Counsel: M Baroni for the Respondent