RTBU (on behalf of Rafiq) v STA [2008] NSWIRComm 8 (5 February 2008)

Last Updated: 30 May 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
RTBU (on behalf of Rafiq) v STA [2008] NSWIRComm 8



FILE NUMBER(S):
1106

HEARING DATE(S):
22 October 2007, 23 October 2007, 24 October 2007, 29October 2007, 7 December 2007

DATE OF JUDGMENT:
5 February 2008

PARTIES:
Australian Rail, Tram and Bus Industry Union of Australia, New South Wales Branch (on behalf of Ms S Rafiq)
State Transit Authority Division of the Government Service of New South Wales

CORAM:
Grayson DP


CATCHWORDS: Unfair dismissal - Depot roster clerk - Protected disclosures - Alleged corrupt rostering practices - Alleged favourtism in allocation of lucrative overtime or otherwise attractive "cream" shifts - Internal audit followed by disciplinary investigation - Whether irregularities identified were product of inadvertant error - Complexity of rostering system - Preference system utilised in place of block system - Not included in depot roster manual - Inclusion in depot manual and proper training recommended by auditors

Held - Allegations of corrupt conduct not made out - Dismissal harsh, unreasonable, unjust - Reinstatement and lost pay ordered

LEGAL REPRESENTATIVES
Mr G Paningiris - Lead Organiser - The Australian Rail, Tram and Bus Union, New South Wales Branch
Mr G Hanson - Industrial Officer - State Transit Authority Division of the Government Service of New South Wales

CASES CITED:


LEGISLATION CITED:
Industrial Relations Act 1996
Protected Disclosures Act 1994


TEXTS CITED:




JUDGMENT:

- 13 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Grayson, DP

5 February 2008

Matter No IRC 1106 of 2007

The Australian Rail, Tram and Bus Industry Union, New South Wales (on behalf of Sushila Rafiq) and State Transit Authority Division of NSW Government Service

Application by The Australian Rail, Tram and Bus Industry Union, New South Wales on behalf of its member Sushila Rafiq re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2008] NSWIRComm 8

1 The applicant, Ms Sushila Rafiq, commenced employment with the respondent on 30 August 1982 as a Roster Clerk and worked in that capacity at various depots until her dismissal on 29 June 2007. For the nine years preceding her dismissal, the applicant was employed at Burwood Bus Depot.

2 The matter was the subject of attempted albeit unsuccessful conciliation and was ultimately listed for hearing over five days in late October and early December 2007. In the course of hearing and in addition to the documentary material relied upon by the respective interests, evidence was taken from the following witnesses:-

· Ms Brooke McGUIGGAN - Senior Internal Auditor

· Mr Bill ARHIMANDRITIS - Bus Operator

· Mr Mark DELOHERY - Bus Operator and union delegate

· Ms Gale WALES - Roster Clerk

· Ms Sushila RAFIQ - Applicant

· Mr John PALMER - Acting Bus Depot Manager

· Mr Steve MERRILL - Acting Bus Depot Manager

· Mr Mark McCARTHY - Employee Relations Manager

· Mr Michael TARLINGTON - Roster Clerk

· Mr Jim NIAHOS - Bus Depot Manger

3 The applicant's dismissal was the culmination of a lengthy and protracted investigation which began 2 years earlier in or about July 2005 with the referral of anonymous complaints about rostering practices to the respondent's Internal Audit Unit (IAU). The complaints were made as protected disclosures under the relevant statute (see Protected Disclosures Act 1994). The IAU conducted what Ms McGuiggan described as a fact finding review which involved, among other things, a detailed analysis of the information contained in the protected disclosures; of the Depot Rosters Manual; of the State Transit Code of Conduct and of source material such as driver journals, display rosters and shift swap forms from Burwood Depot where the applicant was employed. The computerised roster management system (HASTUS) was also accessed and numerous recorded interviews were conducted with persons such as the disclosing officers, other bus operators, roster manual trainers, local and regional management and in May 2006, the applicant herself.

4 In a voluminous report, ultimately provided to management in October 2006, the IAU recommended that disciplinary action be taken against the applicant for not following standard rostering practice and procedure, for giving preferential treatment (showing favouritism) to certain drivers and for non-compliance thereby with the respondent's code of conduct. The nature of the preferential treatment may be described in broad terms as giving an inappropriately high number of more lucrative overtime shifts or more inherently attractive "cream" shifts to one or more drivers at the expense of others with greater entitlement due to their higher ranking under the so-called preference system of holiday relief rostering which applied at Burwood Depot.

5 Two months later in December 2006, the applicant was served with the following series of allegations:-

Form E1

Ms Sushila Rafiq,

Staff No. 659201

Roster Clerk,

BURWOOD BUS DEPOT

Dear Ms Rafiq,

I am writing to you in your role as Roster Clerk, Burwood Bus Depot, with regard to alleged incidents, which may be in breach of State Transit polices and regulations, specifically:

(a) Section No 4, 5.1.1, 5.1.2, 5.1.3, 5.1.4, 5.1.7, 5.1.6, 5.1.9 AND 8 of the State Transit Code of Conduct

DETAILS AS FOLLOWS

An investigation into alleged breaches of the Code of Conduct by you has given rise to the following charges

Charge 1

You breached the State Transit Code of Conduct by knowingly not following standard practice and procedures, thereby being inefficient in the construction of the period rosters for Burwood Bus Depot.

Charge 1 Particulars

For the period 29 January 2006 to 25 February 2006;

 You did not follow the generally accepted practices in relation to the Burwood Bus Depot preference system in roster construction of the holiday relief roster

 You did not allocate shifts to drivers on the holiday relief roster in accordance with their preferences and position (line number and seniority) on the holiday relief roster. On the majority of occasions less senior drivers received their shift preferences prior to those higher and more senior holiday relief drivers.

Charge 2

You breached the State Transit Code of Conduct by not following the procedures laid down in the Depot Roster Manual in respect of shift allocation at Burwood Bus Depot.

Charge 2 Particulars

For the period 29 January 2006 to 25 February 2006;

 You breached Chapter 3 Building a Period Roster, section 2.1 Procedure Sheet of the Depot Roster Manual (2001), by allocating shifts to the holiday relief prior to completing all requests, filling exclusive shifts (Higher grade, then all other exclusives), filling holes in the roster and filling relief lines. Section 2.1 of the Depot Roster Manual (2001) states that the nature of building the Monthly Period Roster is complex, therefore it has become necessary to establish a strict sequence of building. Your actions in these matters have been contrary to the sequencing of constructing a roster per the Depot Roster Manual.

Charge 3

You breached the State Transit Code of Conduct by not validating rosters prior to display at Burwood Bus Depot.

Charge 3 Particulars

For the period 29 January 2006 to 25 February 2006;

 You breached Chapter 3 Building a Period Roster, section 2.1 Procedure Sheet of the Depot Roster Manual (2001) by failing to undertake the last step in roster construction which is to validate rosters prior to display.

 Your failure to undertake a validation of rosters prior to displaying the roster for the period 29/01/06 to 25/2/06 resulted in the roster being posted with insufficient rest time (ten hour minimum break) errors, which represent a breach of the conditions of the N.S.W. Government Bus Traffic Employees Award

Charge 4

You breached the State Transit Code of Conduct by failing to allocate available shifts to the relief lines at Burwood Bus Depot.

Charge 4 Particulars

For the period 29 January 2006 to 25 February 2006;

 You breached the Depot Roster Manual section 3.13 Relief Lines by failing to roster shifts to employees on relief lines work from the roster that they are the relief.

 You breached the Depot Roster Manual section 3.11.9 and 3.11.15 Exclusive relief’s, which states that duties classified as Exclusive, including First and Last, Starter, All Night Roster etc have lists of relief’s who perform all relief work, e.g. holidays, sickness, days off, etc. These relief’s are listed in relief order in the Exclusive Relief Book. In these matters you failed to allocate exclusive duties to any of the exclusive relief’s drivers listed in the Exclusive Relief Book. Prior to exhibiting the period rosters for period 29/1/06 to 25/2/06 you made a change to driver Arhimandritis work for 4/2/06 by changing shift D530 to shift D504 for driver Arhimandritis. The allocation of shift D504 where it is exclusive is in breach of section 3.11.9 of the Depot Roster Manual as the shift should have been allocated to an exclusive relief driver. Driver Arhimandritis was found to have financially gained, through payment of an additional 20 minutes at time ad a half, from the change made by you to his shift on 4/2/06.

Charge 5

You breached the State Transit Code of Conduct by failing to roster 'All known duty' to be performed by Bus Operators at Burwood Bus Depot.

Charge 5 Particulars

For the period 14 August 2005 to 10 September 2005;

 You breached the N.S.W. Government Bus Traffic Employees Award 2002 section 15.1) and section 2.4 of the Depot Roster Manual in that you failed to roster shift D824 for 28/8/05 in the displayed roster for period 14/8/05 to 10/9/05. The final roster identified that holiday relief driver Arhimandritis worked D824 for 28/8/05 after receiving the shift through a swap.

Charge 6

You breached the State Transit Code of Conduct by knowingly giving preferential treatment to a bus operator in terms of the allocation of shifts to the detriment or unfairness to other bus operators at Burwood Bus Depot.

Charge 6 Particulars

For the period 29 January 2006 to 25 February 2006;

 You exhibited preferential treatment to holiday relief driver Mr. Arhimandritis during roster construction by allocating this driver shifts prior to completing construction of the main roster as per section 2.1 of the Depot Roster Manual. Your actions are also not in compliance with the practices in relation to the preference system in roster construction of the holiday relief roster.

In these matters you allocated Mr. Arhimandritis the following shifts

 D808 on Sunday 29/1/06

 D530 on Saturday 4/2/06

 D532 on Saturday 25/2/06

 D532 on Saturday 8/4/06

Prior to completing construction of the main roster and before any holiday relief drivers were allocated shifts, including the nine more senior drivers on the holiday relief who under the preference system are entitled to available shifts before Mr. Arhimandritis. In these matters you exhibited preferential treatment to driver Arhimandritis.

Charge 7

You breached the State Transit Code of Conduct by knowingly giving preferential treatment to a bus operator in terms of the allocation of shifts at Burwood Bus Depot.

Charge 7 Particulars

 You exhibited preferential treatment to holiday relief driver Mr. Arhimandritis during roster construction for roster period 29/1/06 to 25/2/06 by allocating this driver earlier shifts than more senior drivers with the same preference as driver Arhimandritis. Driver Arhimandritis was never allocated the latest am shift available in the roster period 291/06 to 25/2/06, whereas the first (most senior) driver received the latest shift (allocate to the top four with am preferences) on six occasions.

 Your actions of allocating driver Arhimandritis shifts, which finish before 2:45pm, provided driver Arhimandritis with an unfair shift allocation, and is not in accordance with the practices in relation to the preference of more senior drivers on the holiday relief roster system.

 You allocated shift D306 to driver Arhimandritis on a number of times in roster period 29/1/06 to 25/2/06. Shift D306 is considered a desired shift as the shift comprises spare duties between 5:10am and 7:00am and means that the driver will only perform roadwork or other duties if there are uncovered absences at the Depot between this timeframe, It is clear that shift D306 should only have been allocated to driver Arhimandritis on one occasion. This is significantly less than the six times it was allocated to driver Arhimandritis in the display roster 29/1/06 to 25/2/06

 Prior to exhibiting the period rosters for period 29/1/06 to 25/2/06 you made a change to driver Arhimandritis work for Sunday 29/1/06 by changing shift D808 to shift D824 for driver Arhimandritis. Driver Arhimandritis was found to have financially gained, through payment of an additional 1 hour and 7 minutes at double time, from the change made by you to his shift on 4/2/06.

Charge 8

You breached the State Transit Code of Conduct by arranging and facilitating a shift swap in breach of procedures at Burwood Bus Depot.

Charge 8 Particulars

 You assisted in a swap between driver Arhimandritis and driver Diab. Evidence shows that driver Diab did not sign a swap form with driver Arhimandritis to swap his Sunday shift, D822 on Sunday 7/8/06 to driver Arhimandritis.

 Driver Diab “gave back” his Sunday shift (allowable as Sunday shifts are considered voluntary overtime). You facilitated the swap between Arhimandritis and Diab. The Roster Clerk is required to check the list of staff wishing to undertake voluntary overtime (VOT) before allocating Sunday work. Driver Arhimandritis worked a Sunday shift at penalty rates, to which he was not entitled.

Charge 9

You engaged in dishonest actions in relation to the investigation into your actions

Charge 9 Particulars

 You provided false evidence during your interview in relation to the signature on driver Arhimandritis' preference form.

 You contaminated evidence after your interview by writing times on preference forms to support your statement provided during your interview.

You may wish to explain the circumstances of the alleged incident mentioned above. If so, please provide me with your explanation in writing within seven (7) days of receipt of this letter. Your explanation will be taken into consideration in deciding whether corrective action is required. You should note that it may be necessary for you to attend an interview following the receipt of your explanation. In the absence of a response from you within the nominated seven (7) days, a decision will be made as to whether corrective action is warranted.

Yours sincerely,

J Niahos

Manager, Burwood Bus Depot

I acknowledge that I have received a copy of this letter

Signature Date

6 The above allegations were then the subject of formal disciplinary investigation which was delayed in its commencement until April 2007 due in part to industrial disputation. In May 2007, the applicant provided a written response having declined a number of invitations to be interviewed by the appointed investigation officer, Mr Ken Walker.

7 Mr Walker then dealt with the allegations on the papers, as it were, and with the voluminous internal audit report at his disposal. I note, as earlier observed, that the report contained the transcribed IAU interview with the applicant which was conducted in May 2006 and I further note that following the industrial disputation mentioned above, the applicant was provided with the full record of that interview.

8 In the result of and save for charges 1 (b), 7 (a) and 9, there were adverse findings made against the applicant and she was issued with a Notice of Punishment ending her employment on 29 June 2007.

9 For her part, the applicant maintained and continues to maintain, that if she departed from standard rostering practice, it was by inadvertant error and not with any intention of favouring or improperly enriching any one driver over others. It was also because the preference system is of itself a departure form the standard block system of rostering as set out in the Depot Roster Manual. There is no manual or other reference material to guide the depot roster clerk in the operation of the preference system which seemed to me on the evidence to be a system of some complexity calling on a regular basis for the exercise of almost intuitive judgment on the part of the roster clerk in attempting to please the greatest number of drivers for the greatest amount of time.

10 In that regard, I note the following observations and recommendations of the internal auditors in relation to the preference system of rostering:-

Preference System

The following observations were made:

· No written agreement as to how system will operate
· No instructions/training provided to Roster Clerks of the rules of the system (Global Issues) and local rules on how it will operate
· Locally at Burwood Depot there was no requirement to have preferences in writing
· Abuse of rules/systems in place increase the risk of errors and abuse of the system by its users

It is suggested that the following be considered by State Transit (globally) in reducing the risks to State Transit

1. Document rules of preference system and how it is to operate at all Depots.
2. Formally agree rules of the preference system and incorporate these rules into the Depot Roster Manual.
3. Incorporate training on the preference system and how it is to operate into Depot roster training courses.
4. Instruct all relevant staff on these rules and practices.
5. Require all preferences (and changes to these preferences) by the holiday relief drivers to be in writing, signed and dated by the driver prior to submitting the request and the Roster Clerk noting the acceptance of the request.
6. Maintain a folder of all preferences in the roster room and consider placement of preferences on driver personal files.

11 As it was, the auditors looked to Mr S. Merrill, the Operations Manager at Burwood Depot, for their understanding of how the preference system was intended to operate. Further, there was evidence of local arrangements at Burwood Depot, whereby individual drivers may come to an agreement between themselves to swap shifts rather than leaving it to the roster clerk and at least one of the adverse findings against the applicant (Charge 8) wrongly in my opinion, attributes that function to her as an act of misconduct.

12 This is by no means a simple or straightforward matter and plainly presented the internal auditors with a significant challenge in understanding the complexities of rostering systems in order to test the probity or otherwise of the applicant's work. In the final analysis, the conclusions reached by the auditors and later, in the main adopted by the respondent's investigation officer, turned largely on the non-acceptance of the applicant's stated explanation of the perceived irregularities put to her. Some are frankly conceded by the applicant and have been from the outset, as being as simple and innocent human errors and I am bound to say in that and other respects, I had no reason to doubt her truthfulness as a witness.

13 Other matters put to her as irregularities were stoutly defended as being consistent with proper rostering principles as she understood them or with local depot arrangements or both and after careful consideration of the evidence I remain unconvinced that the applicant misconducted herself in a corrupt manner deserving of the ultimate sanction of dismissal.

14 True it may be and it is not denied that errors were made but in my opinion it would be surprising in the demanding environment in which the applicant operated as a roster clerk if there were no errors and I do not think that the function of fair and balanced rostering, commendable though it may be as a corporate objective, is amenable to assessment by a microscopic process of audit as the respondent here contends. This is particularly so when one considers the relatively low number of perceived irregularities which were identified by the lengthy and protracted audit process compared with the myriad of discretionary decisions otherwise made by the applicant in building, validating, displaying and maintaining rosters on a daily basis over that period of time.

15 Further, and as the evidence disclosed, it is the inevitable fate of the roster clerk to be the subject of complaint from time to time by drivers who do not get precisely what they want and it brings no credit in my mind upon those, as the evidence indicated, who sought to disparage the applicant by resorting to graffiti on toilet walls in circumstances where it became known within the depot community that the applicant was the subject of audit and disciplinary investigation. For all of that, however, my sense of the evidence particularly that of the depot manager at the relevant time, Mr Niahos; the operations manager, Mr Merrill and the union delegate, Mr Delohery, was that there was an open and transparent system of processing complaints as and when they were made. This involved direct discussion between depot management and the applicant or her relief roster clerks and by and large, the process appears to have been effective in resolving difficulties as they came to light. That is, at least, until Mr Niahos and Mr Merill were instructed to refer all complaints directly to the auditors rather than speak to the applicant about them. It seems to me that continuing dialogue between depot managers and the roster clerk may have been more appropriate as a problem solving measure than the lengthy and protracted audit/disciplinary processes embarked upon by the respondent. That continuing dialogue could have and in appropriate circumstances should have involved a counselling role in the interests of ensuring adherence to proper rostering practice.

16 For her part, the applicant was generally well regarded within and beyond the Burwood Depot community and her integrity and expertise as a roster clerk over twenty or more years had not been previously called into question. Having said that, I should not be taken to mean that such errors as were revealed by the audit process would be excusable if they were to become a regular or routine feature of a roster clerk's work but I again note in that regard the recommendation of the auditors that proper guidance in the operation of the preference system of rostering be provided to roster clerks by training and documentation of rules into the depot roster manual.

17 Having carefully considered the facts and matters submitted, I am of the view and find accordingly that the applicant was harshly, unreasonably and unjustly dismissed on 29 June 2007.

18 I make the following orders: -

1. The respondent is to reinstate the applicant in her former position on terms not less favourable than those that would have been applicable if she had not been dismissed.

2. The respondent is to pay the applicant an amount equivalent to remuneration lost or foregone by reason of her dismissal.

3. The period of the applicant's employment with the respondent is taken not to have been broken by her dismissal.

These proceedings are concluded accordingly.



LAST UPDATED:
5 February 2008