WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Glen Kelly

APPLICANT

-v-

Public Transport Authority

Transperth Train Operations

RESPONDENT

CORAM Senior Commissioner J H Smith

HEARD Tuesday, 10 March 2009

DELIVERED FRIday, 1 may 2009

FILE NO. U 180 OF 2008

CITATION NO. 2009 WAIRC 00238

CatchWords Termination of employment - Harsh, oppressive and unfair dismissal - misconduct admitted - whether circumstances of misconduct justified dismissal - standard of conduct expected of Transit Officers considered - applicant harshly and unfairly dismissed - turns on own facts - Industrial Relations Act 1979 (WA) s 29(1)(b)(i); Public Transport Authority Railway Employees Enterprise Agreement 2006 clause 2.11.3.

Result Applicant harshly and unfairly dismissed.

Representation 

Applicant Mr A Dzieciol of counsel

Respondent Mr D Matthews of counsel

Reasons for Decision

1          Glen Kelly (the applicant) filed an application in the Western Australian Industrial Relations Commission (the Commission) on 11 December 2008 under s 29(1)(b)(i) of the Industrial Relations Act 1979 (the IR Act) claiming that on 17 November 2008 he was harshly, oppressively or unfairly dismissed by the Public Transport Authority (the respondent).

2          The applicant was employed by the respondent as a Transit Guard/Officer from 19 September 2002 until he was summarily dismissed by the respondent on 17 November 2008 following findings being made by the respondent that he (the applicant) had committed two breaches of discipline which amounted to misconduct on his behalf.  The charges found to be proven by the respondent were as follows:

1. While in uniform and on duty on Public Transport Authority property the applicant conducted himself in an unprofessional and undignified manner during his use of a taser or similar device in the presence of his peers.  (Transit Officer Operations Manual Section 6(15)(a) refers).

2. While in uniform and on duty on Public Transport Authority property he was in possession of a taser or similar device.  The respondent found that this was a breach of Section 10.  PTA Offences, Regulations and By-laws, which states that it is an offence to be in possession of things prohibited (firearm) and also, Section 8 – Employee Policies and Procedures (6) provides that, all PTA employees are subject to the provisions of the Public Transport Authority Act 2003 (includes the Public Transport Authority Regulations 2003) and any statutory applicable legislation.

3          In the applicant's application he states that he accepts that his conduct on the day in question fell below the standard required of a Transit Officer but says the penalty of dismissal is excessive and in all the circumstances harsh, oppressive and unfair.  The grounds on which the applicant contends this to be so are as follows:

1. The device in question was not a "taser" within the usual meaning of that word.  To the best (sic) my information, knowledge and belief, the device was not capable of discharging an electric shock that was able to injure or disable a person.

2. The PTA charge me with being "…in possession of things prohibited (firearm)."  However, the item that I had in my possession was not a "firearm" as defined in section 4 of the Firearms Act 1973.

3. I did not bring the device into work or onto the PTA's premises.

4. I only used the device on myself, and only after being encouraged to do so by and urged on to do so by several Transit Officers.

5. No injury occurred to any of the persons present, and in all of the circumstances, it was extremely unlikely that any injury could have occurred to any person present.

6. This was a case of "skylarking" by a group (sic) Transit Officers, including myself, late in the evening at a time when there were no members of the public on the station.

7. By reason of the provisions of the Clause 2.11.3(f) of the Public Transport Authority Railway Employees Enterprise Agreement 2006, ("the Enterprise Agreement") the Authority had no grounds on which to lay a "charge" against me in relation to the events in question, as a period of more than 30 days had passed since the occurrence of the events.  In this regard, I was notified of the "charge" on 10 June 2008, nearly 7 months after the events occurred.

8. As at the date of my dismissal (17 November 2008) a period of well in excess of three (3) calendar months had passed from the time of the occurrence first came within the knowledge of the Authority.  Accordingly, at that time the "charge" against me had lapsed by reason of the provisions of Clause 2.11.3(g) of the Enterprise Agreement.  In this regard, it is clear that the Authority was aware of the events in question on 10 June 2008.  The Authority then had a period of 3 months, to 9 September 2008, to make a final decision in relation to any charge against me that may have arisen from that occurrence.  After that date, any such charge automatically lapsed by reason of clause 2.11.3(g) of the Enterprise Agreement.

9. Therefore, to the extent that I have been dismissed by the Authority on the basis of the charges referred to in paragraph 2 above, then such dismissal is not valid as it is in breach of Clause 2.11.3 the Enterprise Agreement as the charge(s) against me had lapsed for the reasons set out in paragraph 8 above.

10. I have been employed as a Transit Guard/Transit Officer for a period of (sic) excess of 6 years and I consider that I have an excellent record in that employment.  Namely, this is the first occasion that I have been "charged" with a disciplinary "offence" in my 6 years of service with the Public Transport Authority.

4          At the hearing of this matter counsel for both parties informed the Commission that it is not in dispute that the applicant committed an act of misconduct on 29 November 2007 by twice applying to himself a device which emitted an electric spark.  It is agreed by the parties that the Commission need not concern itself as to whether the device used by the applicant on the day in question was a firearm.  The Commission was also informed that the applicant does not raise the issue whether the dismissal was invalid on the grounds that the procedure and time set for compliance of steps to be taken in the disciplinary process set out in clause 2.11.3 of the Public Transport Authority Railway Employees Enterprise Agreement 2006 (the Enterprise Agreement) had been complied with, but non-compliance is a matter going to the overall fairness of the decision to dismiss.

5          In light of the concessions made on behalf of the applicant and the respondent, the issue for determination in these proceedings is whether the circumstances of the misconduct complained of on 29 November 2007 and the circumstances of mitigation warranted the penalty of dismissal or some other penalty provided for in clause 2.11.2 of the Enterprise Agreement.

The Enterprise Agreement

6          The relevant provisions of the Enterprise Agreement are as follows.  Clause 2.11.2 provides:

Discipline

(a) The Employer shall have the ability to reprimand, fine, transfer, suspend without pay from duty, reduce in grade, retire or dismiss any employee.  Provided always that there is prior written notice to an employee of such intended action, stating the reason for the action being taken.

(b) Notwithstanding any other provision in this Agreement, disciplinary action taken by the employer will be consistent with PTA disciplinary policies and guidelines and the relevant public sector regulations, legislation and codes which are applicable to this agency, including procedures relevant to internal investigations where the issue is deemed to warrant such a process. 

Clause 2.11.3 of the Enterprise Agreement provides:

Charges Against Employees

(a) The employer shall notify the employee of the disciplinary charge and shall state the reasons for this, and request the employee provide a written explanation in relation to the matter.

(b) An employee shall provide if called upon, with the least possible delay, any report or statement, which may be required by the employer.

(c) When an employee against whom a charge is pending has made a statement to the employer and that statement has been taken down in writing, the employee shall be provided with a copy of the statement.

(d) If in the opinion of the employer, the action of any employee could lead to a charge of discipline, the following process shall be commenced within seven days of the employer's first knowledge of the actions occurrence.

(e) The employee shall be notified, at the time the employer commences the disciplinary process, that the disciplinary process has been commenced against him or her.

(f) When a charge has been made against an employee the employee shall be supplied with a copy of the charge and any reports upon which it is based. No charge shall in any case be laid after the expiration of 30 days from the date of the occurrence.

(g) If a final decision in any case in which a charge has been made against a employee is not given within three (3) calendar months of the occurrence first coming to the knowledge of the employer or within fourteen (14) days of the final determination of any charge relating to the occurrence brought against the employee by a party other than the employer (whichever is the later) the charge in question shall lapse.

(h) An employee who is suspended from duty for any reason shall not be kept under suspension in excess of six (6) rostered days following the date on which the employee was suspended. Except in cases where dismissal follows suspension. An employee shall be back-paid for any time under suspension in excess of six days, provided the employee has not delayed the submission of the employee's explanation of the offence for which the employee was suspended.

(i) Where an employee exercises the right to challenge the employer's decision by invoking the Dispute Resolution Procedure clause of this Award, no deduction shall be made from the employee's wages in respect of any fine until a final decision has been made.

(j) Where an employee has been fined an amount exceeding one day's pay, the amount to be deducted from any fortnight's pay shall not be greater than one day's pay, except with the consent of the employee concerned.

(k) Where, owing to absence from duty of an employee through sickness or other authorised absence, it is not possible to notify the employee within the period prescribed that the employee has been reported, the provision shall be regarded as having been complied with if the employee is so notified within seven (7) days of resuming duty following such absence. In such cases, the period in which the final decision may be made shall be extended by the period of the absence.

(l) Where the employer is unable to contact the employee as the employee's whereabouts are unknown and the employee's absence has not been approved beforehand, the circumstances may be construed as abandonment of employment, in which case the employee's contract of employment may be terminated with one week's notice sent by registered post to the employee's last known address.

Background

7          The applicant whilst on duty somewhere between 10.00 pm and 11.00 pm on 29 November 2007 when in company with other Transit Officers twice applied a device to his right thigh which emitted an electrical spark which produced not only a spark but at least a sting which gave the appearance of a strong shock to his leg.  A video was taken of this event whilst it occurred by another Transit Officer using a mobile phone owned by the Public Transport Authority.  The video was later distributed to other Transit Officers and after some months the video was downloaded by an unknown person onto a disc and sent to the respondent's Manager of Security and Customer Service, Mr Steve Furmedge.  On 3 June 2008, Mr Furmedge located two packages in his in-tray.  One was addressed to him and the other was addressed to Investigator Trivanovic.  Mr Furmedge viewed the video.  A running sheet was placed on the investigation file (Exhibit 1).  Exhibit 1 records that:

A review of the footage shows Transit Officers in an unidentified PTA office.  The only Transit Officer that can be identified is Transit Officer Glen Kelly who appears to be holding a device, which he later places against his leg and a visible electrical discharge is relayed into his own leg, which he repeats again.  Transit Officer Kelly appears to threaten to discharge it on another identified Transit Officer, all of whom are laughing in the process. 

8          The respondent initially made a decision to refer the matter to the Police prior to commencing disciplinary action.  Police executed a search warrant on the applicant's residence on Saturday, 7 June 2008, but no device was located.

9          On 10 June 2008, John Kitis, the Acting Manager of Security Services, prepared and caused to be served a notice of investigation into alleged breach of discipline - request for written explanation.  The notice stated as follows:

It is alleged that on or before 1 May, 2008, whilst in uniform and on duty on Public Transport Authority (PTA) Property, you had in your possession a taser or similar device as shown in the attached recorded footage, being a device listed as a controlled weapon pursuant to section 7 of the Weapons Act 1999.

It is alleged that on or before 1 May, 2008 you discharged a taser or similar device into your own leg on two occasions while on duty, in uniform and on Public Transport Authority (PTA) Property.

It is alleged that on or before 1 May, 2008, you waved the weapon (taser or similar device) in the direction of one or more unidentified Transit Officers who were also present and who were forced to take evasive action.

In accordance with cl 2.11.3 of the Railway employees (sic) Enterprise Agreement 2006 – Charges Against Workers you are requested to provide a written statement explaining these alleged actions and specifically responding to the following questions:

1. Who else was involved in this incident?

2. Who owned the item that can be viewed on the recorded footage?

3. Where is the item in question?

4. Any other information that explains the circumstances of the incident.

In accordance with cl 2.11.3 of the Railway employees (sic) Enterprise Agreement 2006 – Charges Against Workers you are advised that a disciplinary process has commenced against you regarding this matter.  The allegations have also been referred to the PTA Internal Investigations, The Western Australia Police and the Corruption and Crime Commission.  Enquiries have commenced into the facts of this matter.

In accordance with cl 2.11.3 of the Railway employees (sic) Enterprise Agreement 2006 – Charges Against Workers you have until 5pm 17 June 2008 to respond to the undersigned on these matters.

(Exhibit 2)

10       The applicant provided a written explanation on 22 June 2008.  His response stated as follows:

This report is made in reference to a letter dated 10th June 2008, from Acting Manager Security Services, Mr. John Kitis.  The letter has requested a written explanation explaining video footage on a compact disc that was attached.

In the letter, it reads, "… had in your possession a taser or similar device as shown in the attached footage, being a device listed as a controlled weapon pursuant to section 7 of the Weapons Act 1999."

This object was NOT a "taser or similar device."  I understand that a "taser or similar device" is something that can injure or disable.  This object does not have the capacity to injure or disable and has very low voltage.

In the letter, it reads, "… you discharged a taser or similar device into your own leg on two occasions…"

I did not discharge a "taser or similar device" into my leg.  The object was held near my right leg and it emitted a small spark.  I deliberately pretended that the object caused me discomfort for the camera and was exaggerating the effects to make people laugh.

In the letter, it reads, "… you waved the weapon in the direction of one or more unidentified Transit Officers who were also present and who were forced to take evasive action."

I was joking around and the person who I waved the object in the direction of can be heard on the video footage laughing.  Other parties present were also laughing loudly and this is clearly heard in the footage.  I never intended to use the object on anyone but myself and video footage clearly substantiates this.

In the letter, it reads, "… and specifically responding to the following questions:

1. Who else was involved in the incident?

2. Who owned the item that can be viewed on the recorded footage?

3. Where is the item in question?

4. Any other information that explains the circumstances of the incident."

In regard to Question 1; I was the only person that handled the item in the video footage.

In regard to Question 2; I do not know who owns the item.  The only occasion that I have ever had the item in my possession was for a very brief period of time on the day in question.

In regard to Question 3; I do not know where the item is.

In regard to Question 4; I can not (sic) provide any other information in regards to this incident as it occurred over six (6) months ago, apart than the information set out above.

(Exhibit 3)

11       In a letter dated 1 July 2008, Pat Italiano, the General Manager Transperth Train Operations, wrote to the applicant and informed the applicant that he was disappointed with his response which he (Mr Italiano) considered to be unacceptable from a fully trained and experienced Transit Officer.  Mr Italiano also stated in the letter that it was expected that the applicant would have been able to provide comprehensive responses to the questions posed in the memorandum of 22 June 2008 as follows:

1. In regard to Question 1 you might have named the persons who were present in order that they could be asked to corroborate your version of the incident and the type of item you were playing with.

2. In regard to Question 2 you might have stated from where or from whom you obtained the item that you were playing with, which also may assist in corroborating your advice that the item was not a "taser or similar device".

3. In regard to Question 3 you might have stated where or with whom you left the device you were playing with which also may assist in corroborating your advice that the item was not a "taser or similar device.

(Exhibit 4)

12       Mr Italiano, in that letter, also informed the applicant that:

It appears to me that while in uniform and on duty on Public Transport Authority property you were in possession of a taser or similar device as was alleged in the memorandum of 10 June 2008 from the Acting Manager Security Services.  Your responses do not provide any clarification to the contrary.

Therefore, you are hereby charged with the following breaches of the requirements of the Transit Officer Operations Manual:

1. While in uniform and on duty on Public Transport Authority property you conducted yourself in an unprofessional and undignified manner during your use of a taser or similar device in the presence of your peers.  (Transit Officer Operations Manual Section 6 (15)(a) refers.(sic)

2. While in uniform and on duty on Public Transport Authority property you were in possession of a taser or similar device.

This was a breach of Section 10.  PTA Offences, Regulations and By-laws, which states that it is an offence to be in possession of things prohibited (firearm) and also, Section 8 – Employee Policies and Procedures (6) provides that, all PTA employees are subject to the provisions of the Public Transport Authority Act 2003 (includes the Public Transport Authority Regulations 2003) and any statutory applicable legislation.

An investigation will be conducted into the matter and you will be contacted by a PTA Investigator shortly to provide input into the investigation.

13       Prior to the completion of the investigation the applicant went on an extended holiday overseas in mid August 2008.  He was due to return to Western Australia on 19 October 2008.  His leave had been planned for some time and had been approved in early 2008.  On 3 September 2008, a letter addressed to the applicant was signed by Mr Italiano in relation to the investigation.  However, because the applicant was on leave the letter was not sent to the applicant until some time in October 2008.  In the letter Mr Italiano informed the applicant that:

The investigation has been completed but your absence on approved leave has prevented our Investigator from providing input into the investigation.  I understand that your last rostered shift was 14 August 2008.

The provisions contained in section 2.11.3 (k) (Charges Against Employees) of the Railway Employees Enterprise Agreement 2006 state the following.

(k)  Where, owing to absence from duty of an employee through sickness or other authorised absence, it is not possible to notify the employee within the period prescribed that the employee has been reported, the provision shall be regarded as having been complied with if the employee is so notified within seven (7) days of resuming duty following such absence.  In such cases, the period in which the final decision may be made shall be extended by the period of the absence".

A final decision will not be made until you are provided the opportunity to participate in a formal interview about the matter.  Hence, the conclusion of the investigation will be extended by the time of your absence on leave.

I understand that you are due to return from leave on 19 October 2008.

You are required to attend an interview to advise the outcome of the investigation and to provide your input into the matter.  The interview will be recorded on digital audio and visually recorded.  A copy of audio disk will be provided to you at the conclusion of the interview.  You are required to attend the interview at 10.00 AM on 21 October 2008 at the Public Transport Centre, West Parade Perth 6000.  Please attend at the security desk on your arrival and advise the security personnel that you have an appointment with the Investigation Section.

(Exhibit 5)

14       The applicant's return to work was delayed as he was unable to return from overseas until 21 October 2008.  He contacted the respondent by email a few days prior to 21 October 2008 and was informed of the contents of this letter.  He sought to have the interview delayed.  The respondent agreed to his request and the interview was rescheduled for 28 October 2008.  The applicant then requested a further deferral of the interview to allow him time to arrange for a legal representative to be present at the interview.  This request was refused by the respondent.  The applicant later received a letter from Mr Italiano dated 5 November 2008 informing him that the charges had been proven.  In that letter Mr Italiano stated:

In relation to the conduct of PTA Transit Officers, The Transit Officer Operations Manual states in part:

'15) ATTITUDE

While on duty, you must act with courtesy, honesty and integrity, and conduct yourself in a professional and dignified manner'.

Your conduct, which was in an area that could be seen by the public, was unprofessional and entirely unacceptable.  As a Transit Officer, a very high standard of behaviour is expected of you.  By acting in the way you did, you fell far below the required standard.

In accordance with Clause 2.11.2 (a) of the Public Transport Authority Railway Employees Enterprise Agreement 2006, you are advised that the Public Transport Authority intends to impose a penalty of dismissal.  In my view, a finding that you had committed either charge justifies a penalty of dismissal.

However, before taking action against you, I will provide you with an opportunity to make a submission to me as to why your employment should not be terminated.  If you wish to make such a submission, please do so in writing by the close of business on 12 November 2008.

From today you are not to attend your operational rostered shifts.  You are required to report to John Kitis Transit Manager Transit Office Perth at 0830 hours on Thursday 6 November 2008 to undertake alternative duties.  I will notify you of my final decision in this matter after the 12 November 2008.

(Exhibit 6)

15       The applicant provided his submission to Mr Italiano on 14 November 2008.  In a memorandum to Mr Italiano dated 6 November 2008 the applicant stated:

Second Breach

I will deal firstly with the second breach, namely that I was "in possession of a taser or similar device", which "was a breach of Section 10 PTA Offences, Regulations and By-laws", in that I was in possession of a prohibited thing, namely a firearm.

Section 10 of the Transit Officer Operations Manual 2006 reads, "Possession of things prohibited (Firearm), Regulation 21(c)."  The item that I had in my possession was not a "firearm" as defined under the Firearms Act 1973 Section 4, as it was not capable of discharging a "shot, bullet, or other missile."  A W.A. Police issued taser would be defined as a firearm as when fired the Taser propels two barbed darts with trailing wires that attach to the skin or clothing.  In those circumstances I cannot see how it could be "proven" that I was "in possession of [a] firearm…".  I accept that if I did in fact handle a firearm on PTA property, then it would have been a very serious matter.

It is my understanding that a taser, or similar device, as defined under Schedule 1 – Prohibited weapons of the Weapons Regulations 1999, Item 8, Electric Shock Weapon is, "an article made…to discharge an electric current so as to injure or disable a person."  I had never seen this device before and what I saw of the device in question, it did not appear to have the capacity to injure or disable, as it had a very low voltage.

The device in question does not emit an electric current that is capable of disrupting the person's nervous system in such a manner as to render him incapable of normal functioning.  Rather, I considered, and still consider, that the device was merely a "toy" device, which was not capable of causing harm nor has the ability to disable.

Further, having used the device presented to me by Transit Officer Coppin on myself, I did not consider that it was a '(sic)taser or similar device" and therefore, a prohibited or controlled weapon (as stated by me in my initial statement concerning this matter dated, 22nd June 2008).

First Breach

In your Memorandum dated 5th November 2008, you state that "Section 5.4.1 of the PTA Code of Conduct states in part: 5.4.1.  Personal Behaviour 5.4.1.1 Employees should respect the rights of the individual and should treat each other and customers with courtesy, dignity and respect.  It is expected that employees will at times act professionally.  Teamwork and working collaboratively and cooperatively is a highly valued behaviour at the PTA."

You then go on to state that:

"Your conduct, which was in an area that could be seen by the public, was unprofessional and entirely unacceptable."

Memorandum

I accept that my conduct, in using the device at work, fell below what would be considered acceptable behaviour for a Transit Officer.  However, when all of the circumstances surrounding the incident are taken into consideration, I do not agree that my conduct "fell far below the required standard."  as stated in your Memorandum dated 5th November 2008.

The incident was very much a "one of"(sic), and an isolated event that came about as a result of an unusual set of circumstances, where a group of Transit Officers were skylarking, or engaging in "horseplay" whilst on duty.  All of us, including me, should have been more professional in our conduct on the night in question.  I therefore accept that what I did that evening was wrong.

However, I wish to point out that:

1. I did not bring the device onto PTA premises;

2. I was only a reluctant participant, and I did not initiate the skylarking, or "horseplay";

3. I only used the device on myself.

4. No injury occurred to any of the persons present;

5. I believed that there was very little, if any, potential for injury to any of the participants from the device; and

6. It was late evening, and there were no members of the public on the platform at the time.

Therefore, when the events of the evening in question are viewed as a whole, it would appear that, if anything, it was the other Transit Officers present who did not treat me with "courtesy and respect" by encouraging me to use the device on myself.

Concluding Comments

I have been a Transit Officer for 6 years and during that time I have always strived to act with courtesy, honesty and integrity, in the performance of my duties.

I started with the Authority in September 2002, as an inaugural Transit Guard.  In the 6 years as a Transit Guard/Transit Officer I have always strived to behave in a professional and dignified manner, and I consider that my record as Transit Officer speaks for itself.  I enjoy my work as a Transit Officer, and I consider that I have more to contribute in this role.

Having regard for all of the circumstances surrounding the incident in question, the matters set out above, my 6 years of service as a Transit Officer, and my prior exemplary record, the proposed punishment of dismissal far exceeds the seriousness of my conduct on the day in question.  Therefore, any dismissal would be harsh, unjust and unfair.

(Exhibit 7)

16       After receipt of the applicant's response the respondent reached a decision that the applicant should be summarily dismissed.  On 17 November 2008, the applicant was informed that his services with the respondent would be terminated from the close of business on that day.

The Applicant's Evidence

17       The applicant was employed by the respondent as an inaugural Transit Guard and commenced duty on 19 September 2002.  Initially all Transit Guards were based in Perth.  Later he was posted to Currambine where he remained until he was dismissed.

18       In relation to the events on the night in question the applicant testified that he commenced his shift at 2.45 pm and finished at 12.45 am the following morning.  His partner for the evening was Andrew Arch.  During the afternoon he was visited at the Whitfords station by members of the Delta 5 Vehicle Support Crew (Delta 5).  Members of Delta 5 drive from station to station in a vehicle to assist Transit Officers in trouble.  They also provide transport to the Police lockup and other services.  On that afternoon the officers who formed Delta 5 were Troy Casey and Nigel Coppin.  Transit Officers Casey and Coppin arrived at the Whitfords station sometime between 4.00 pm and 4.30 pm.  The purpose of their visit was to unlock the pepper sprays to be used by the Transit Officers at that station.  Delta 5 officers visit each station near the beginning of each shift to unlock the pepper sprays and then return to the station at a time close to the end of the shift to relock them.  When Transit Officers Casey and Coppin arrived in the afternoon the applicant was sitting at a computer desk doing some work.  While the applicant was seated Transit Officer Coppin came up to the applicant from behind and discharged the device in question reasonably close to the back of his neck.  The applicant said that when this occurred he was a "bit startled".  He turned around and asked Transit Officer Coppin, "What's that?"  Transit Officer Coppin was reluctant to hand the device over and said he had to go and that he would return later and show the applicant the device.

19       The applicant gave evidence that the device in question looked like a small torch or a large pen.  It was about 12 to 15 cm in length and 1½ cm in diameter.  The applicant says the device emitted a low voltage electric shock and was probably powered by AA batteries.  He also said it was not a device that could be listed as a prohibited weapon under Schedule 1 of the Weapons Regulations 1999.

20       Sometime after 10.00 pm or perhaps closer to 11.00 pm Transit Officers Casey and Coppin returned to the Whitfords station.  The applicant said it would have been closer to 11.00 pm when they returned because shortly after the incident in question Transit Officers Coppin and Casey locked up the pepper sprays.  Shortly after their arrival at Whitfords station all the Transit Officers were in the Transit Officers' booth which is on the platform at the Whitfords station.  The booth contains glass walls on at least three sides.  Transit Officer Coppin produced the device and gave it to Transit Officer Arch who looked at it and passed the device to the applicant.  Whilst looking at the device the applicant was encouraged by the other Transit Officers to use it on himself.  Transit Officer Casey said to him (whilst the applicant was holding the device), "Go on.  Do it.  Do it.  Are you going to do yourself?"  Transit Officer Arch said, "Go!  Go!  Go!"  Transit Officer Coppin said, "Don't be a chicken shit.  He is a chicken shit."  The applicant then applied the device to his leg and was then told to do it again which he did.

21       A copy of a video of the incident was tendered in evidence in these proceedings (Exhibit 12).  The video shows the applicant sitting on an office chair with the device in his right hand.  Whilst encouragement is given to him by other officers yelling words such as, "Go on.  Do it.  Do it.", the applicant points the device at his leg and then takes it away and then swings with his right hand out of view of the camera.  All the officers laugh and continue to do so throughout the incident.  The applicant appears to point the device at each officer.  Whilst still seated and laughing loudly the applicant points the device at an officer who the applicant says is Transit Officer Arch.  Transit Officer Arch tries to kick him away.  The applicant then rolls his chair back, looks down at his right leg and then using his right hand uses the device on his right leg.  His right leg jumps and he laughs again.  Then using his right arm again he uses the device again on his right leg whilst seated.  As the device emits the spark his right leg appears to jump. He then jumps up from the chair shaking his leg and yells "Yowee", but then stands normally without any sign of pain and laughs very loudly and continues to laugh very loudly.  The video tape ends whilst all officers continue to laugh.

22       The applicant said that he was reluctant to use the device but gave way to "peer pressure" and applied the device to his leg.  When cross-examined the applicant conceded he did not know what the effect would be of using the device but he said looking at the spark that it emitted he could see that it would not harm but he did not know that for certain.  He testified that he used it on himself because he thought the risk would be minimal as the device was a toy.  The applicant waved the device around the other officers.  He pretended that he had an intention to use it on Transit Officer Arch and that action is reflected in the video, when Transit Officer Arch puts his boot up in jest as if to kick the applicant away.  He says it was clear to him that Transit Officer Arch did not intend to make contact or do any damage to him.  The applicant also testified that he pretended that he suffered pain but in fact he suffered no physical pain but only a mild sting.  He conceded, however, that someone watching the video could have thought that he was in pain.  The applicant also said that the device was not like a true taser which would put someone on the ground if it was used against them.

23       The applicant said he was reluctant to be filmed during this event but because of peer pressure he relented to the camera being used.  He said he exaggerated the effect of the device on his leg, especially the second time and he did so for the amusement of the other Transit Officers.  After he had used the device the second time he tried to grab the phone out of Transit Officer Coppin's hand so that he could erase the film.  However, Transit Officer Coppin refused to give him the phone saying that the video was so funny and he wanted to keep it. 

24       The applicant maintained when he was cross-examined that there were no members of the public present on the platform.  He said that when Transit Officer Coppin produced the device Transit Officer Casey asked Transit Officer Coppin to put the device away.  Transit Officer Coppin then said that there were no members of the public on the platform and there was only one person in the area and that was someone waiting for a bus upstairs in a bus shelter.  He conceded, however, that if there had been members of the public present they could have seen into the Transit Officers' booth. 

25       When cross-examined the applicant also conceded that during this incident if a member of the public came down the escalator or walked towards the Transit Officers' booth from the stairs or from the left they could have seen the incident unfolding before any of the officers in the booth were aware of it.  The applicant, however, said that most people use the escalators and they congregate at the base of the escalators from which the booth cannot be seen. 

26       The applicant said it was a spur of the moment event that he engaged in horseplay.  He also said that he was given an assurance by Transit Officer Coppin that there were no members of the public around.  He also pointed out that the incident occurred in a very short period of time. 

27       The applicant agreed when cross-examined that if he saw someone on the platform using such a device he would intervene and stop them.

28       The applicant agrees that his conduct fell below the standard expected of a Transit Officer and that horseplay or skylarking should not be condoned by the respondent.  The applicant also agrees that his use of the device could impact negatively on the reputation of the PTA.  He testified that in hindsight that he would not do it again but he gave in to peer pressure to use the device.  He does not, however, agree that he abused his position because he says that there were no members of the public present when the incident occurred.  Also he says that there was only a miniscule risk of harm as the device was a toy and that he was in an environment in the office where other officers were enticing him to use the device.  He argues that if someone was using such a device on the platform such conduct would be far more serious as the platform is a dangerous place to be as someone using the device could fall from the platform. 

29       The applicant was also asked in cross-examination why, when he was asked to explain the events on the night in question, he did not report Transit Officer Coppin for having possession of the device and name the other Transit Officers who were present.  In response, he said he did not do so because he was under pressure not to "dob in" other Transit Officers and he was less than frank in his response to the respondent when he provided his written explanation (Exhibit 3) because of peer pressure from other Transit Officers.  He agreed, however, he could have said more about what had happened. 

30       After the applicant's employment with the respondent was terminated he applied for more than a hundred jobs in various industries including work as a customer service representative with a bank, diamond offsider and drilling work with mining companies.  On 3 March 2009, he secured employment as a parking officer with the City of Joondalup.  The applicant seeks to be reinstated to his previous position as a Transit Officer as his current position pays significantly less than the position he held as a Transit Officer.

31       Stuart Philbey is a Transit Supervisor.  He was the applicant's supervisor at the time the applicant's employment was terminated.  The applicant worked with Mr Philbey or under his supervision for just under six years.  Mr Philbey has held the position of Transit Supervisor on the Currambine line for the past two years.  Mr Philbey gave evidence that the applicant, in his opinion, always acted in a professional manner, did not cut corners and that he (Mr Philbey) had no major issues with the applicant that he would not have had with any other Transit Officer.  He said that the only issue that did arise with the applicant was that he could be a little overzealous and had exercised poor judgment on one occasion with the use of a pepper spray.  Mr Philbey, however, said that the applicant was very good with paperwork and assisted and supported junior officers with their paperwork.  Mr Philbey was not consulted about the respondent's decision to terminate the applicant's employment.

The Respondent's Evidence

32       The respondent did not call any witnesses who witnessed the events on the night in question but called George Svirac to give evidence about the location of the Transit Officers' booth at Whitfords station.  Mr Svirac is the Transit Manager of Security.  The respondent also called Mr Brian Appleby who is the Executive Director of People and Organisational Development (POD).  Mr Appleby gave evidence about the process of investigation into the charges.

33       Mr Svirac has been the Transit Manager of Security for the past four years.  Prior to holding that position he was a Transit Guard Supervisor.  As Transit Manager of Security Mr Svirac oversees the entire security operations and makes sure the rail public transport system is safe and secure and that Transit Officers duties are what the public and the respondent expect.

34       Mr Svirac first saw the video footage of the incident when he was shown the video by Mr Furmedge after internal investigators commenced the investigation. 

35       Mr Svirac produced to the court a bundle of nine photographs of the Whitfords train station which show where the incident took place.  The photographs show the Transit Officers' booth at the Whitfords station and show that the lower part of the booth walls are composed in part of brick and surrounded on top of the brickwork by tinted glass windows.  He said that the booths at the train stations are referred to as fish bowls because members of the public can see the interior of the booths.

36       Mr Svirac gave evidence that in his opinion the events depicted in the video were unprofessional and demeaning to other Transit Officers.  He explained that the respondent receives a lot of criticism from the public about the actions of Transit Officers and is constantly trying to improve the public image of Transit Officers and what is depicted in the video could cause damage to the public image as the video depicts a "bunch of cowboys".  He also explained that Transit Officers are presently seeking through their union to have tasers made available for their use.  In his view this incident raises the issue whether the public could have confidence in the ability of Transit Officers to act professionally and use tasers appropriately.  Mr Svirac also said that this incident would reflect upon cases in the courts in regard to the use of force a Transit Officer may use.

37       When cross-examined Mr Svirac agreed that the conduct of all of the Transit Officers involved in the incident was unprofessional.  When asked whether the other three officers are still working for the PTA Mr Svirac said that two had left and that one still works for the respondent and that is Transit Officer Coppin.  When it was put to Mr Svirac that Transit Officer Coppin brought the device into work Mr Svirac said he had heard that but he was unaware whether that had been proved.  Mr Svirac also conceded in cross-examination that no member of the public had made a complaint about the incident.

38       Brian Appleby has held the position of Executive Director of POD since February 2008.  As part of his role he oversees disciplinary processes.  Mr Appleby testified that the disciplinary process in this matter commenced when a disc of the video footage was received by Mr Furmedge.  Mr Appleby said that the response by the applicant to the notice sent by Mr Kitis (Exhibit 3) did not provide a lot of information.  The focus of the investigation was to locate witnesses to the event and to verify what had occurred.  This process was unable to be concluded until after the applicant left to go overseas on 14 August 2008.  Attempts were made by investigators to interview Transit Officers Coppin and Arch as witnesses.  However, both officers declined to attend an interview.  The investigators also sought to interview two other Transit Officers.  Both were interviewed after they left the employment of the respondent.  One was Transit Officer Casey.

39       Mr Appleby testified that the general practice of the respondent when investigating charges is to speak to all the witnesses first before speaking to the person who is charged and that when the person who has been charged is on leave, they do not interrupt that leave.  Mr Appleby expressed the opinion in these proceedings that clause 2.11.3(k) of the Enterprise Agreement enables the respondent to extend the time for concluding an investigation against an employee where a person is on approved leave.  Consequently time was extended whilst the applicant was on leave but the respondent wished to conclude the investigation prior to time running out.  The respondent did not grant the second extension of time for the interview as the applicant already had two opportunities to attend an interview and the respondent was concerned to conclude the investigation within the timeframes prescribed in clause 2.11.3 of the Enterprise Agreement.

40       Mr Appleby said it was his advice to the Executive Officer of the respondent to dismiss the applicant.  In Mr Appleby's view, the conduct of the applicant was unprofessional and justified summary dismissal.  Mr Appleby pointed out that the incident occurred in an area visible to the public and that the conduct complained of was the type of behaviour that if engaged in by a member of the public in a train station the respondent would expect a Transit Officer to intervene to stop that behaviour from occurring.  Mr Appleby gave evidence that he did have regard to the fact that the applicant had six years of service with an unblemished record but he was of the view that the behaviour depicted in the video was so serious that it alone warranted dismissal.  Mr Appleby did not agree that the applicant did not instigate the conduct.  He agreed, however, that he was urged on by other officers but Mr Appleby said he took into account the high standards of professional conduct and integrity expected of Transit Officers.

41       Disciplinary action was initiated against Transit Officer Coppin.  He was provided with a notice of disciplinary charges in respect of three matters.  Firstly, whether he had a taser or similar device in his possession.  Secondly, whether he brought that device onto the property of the Public Transport Authority and, thirdly, whether he was involved in the incident in question.  Mr Appleby said that Transit Officer Coppin's response did not elicit much information other than to say that he did not have the taser in his possession.  At that point in time the respondent did not have any other evidence in their possession.  Transit Officer Coppin was reprimanded and told no further action would be taken.  When, however, the investigation revealed further information Transit Officer Coppin was charged with two offences.  One of being in possession of a taser and another charge of general misconduct.  The union objected to the charges on behalf of Transit Officer Coppin.  After receipt of legal advice that the respondent could not proceed with the charges as they had been addressed, responded to and withdrawn, the fresh charges did not proceed.  Transit Officer Arch, he was also given notice of a disciplinary charge that he participated in the incident.  His response was also not detailed and he was subsequently reprimanded as the respondent did not have sufficient evidence.  Whilst Mr Appleby expressed an opinion that he did not regard the conduct of all the Transit Officers involved in the incident to be equally culpable he regarded their conduct as unprofessional.  He, however, said that he regarded the conduct of Transit Officer Coppin very seriously and would have recommended that Transit Officer Coppin be dismissed if the disciplinary action had been able to be concluded. 

The Applicant's Submissions

42       Counsel for the applicant points out that the respondent bears the evidential onus of proving that the dismissal of the applicant was justified and contends that the respondent has not met that onus.

43       The applicant says that his act of misconduct did not amount to a deliberate flouting of the essential obligations of his contract of employment.  The event on 29 November 2007 was simply a one-off incident of four Transit Officers letting off steam that "got a bit out of hand" which was mitigated by the fact that it occurred out of view of the presence of any members of the public.  The elements of unfairness of the dismissal are said to be:

(a) The conduct of the applicant cannot be distinguished from the conduct of Transit Officers Coppin, Arch and Casey.  Fairness demands that employees who engage in misconduct that cannot be differentiated are not to be treated inconsistently (Gonzalo Portilla v BHP Billiton Iron Ore Pty Ltd (2005) 85 WAIG 3441 at [166]).  It is clear from the video footage of the event (Exhibit 12) that there were four Transit Officers present and all could be identified.  Although the applicant was the most visible on the video, it was a joint enterprise or group exercise.  The other three Transit Officers were not innocent bystanders.  They actively encouraged the applicant to use the device and to repeat that conduct.  It is conceded by the respondent's witnesses that all four officers engaged in misconduct.  If a member of the public had seen the event they would not have distinguished the conduct of the applicant from the conduct of the other Transit Officers.  All four Transit Officers should have received the same punishment for their misconduct.  The appropriate punishment for the incident is a reprimand.  Alternatively, if the conduct is regarded as more serious than warranting a reprimand, the penalty should have been suspension without pay from duty for a period of time. 

(b) When the relevant questions in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on behalf of Mark Harrison and Keith Donaldson v Australian Co-operative Foods Limited [2000] NSWIRComm 199 (Harrison and Donaldson) are asked for assessing the conduct in question particularly at [63] and [64] the answer to each question is no.

(c) The process leading to the termination of the applicant's employment was unfair in that pursuant to clause 2.11.3 of the Enterprise Agreement the disciplinary charges lapsed on 3 September 2008.

(d) In making a determination whether a dismissal is unfair, all relevant circumstances in relation to unfairness must be considered by the Commission including matters specifically related to the employee's work record and the financial consequences of the dismissal (BHP Iron Ore Limited v Transport Workers' Union of Australia, Industrial Union of Workers, WA Branch (1993) 73 WAIG 529).  The penalty of dismissal was particularly harsh in light of the circumstances that:

(i) The applicant had provided six years service without prior breaches of discipline.  The only complaint about his conduct was that he can be a bit overzealous which was not a serious complaint.

(ii) The applicant has been unable to obtain comparable employment and has suffered a loss of income of approximately $35,000 per annum.

(e) The incident in question occurred on the spur of the moment, it did not re-occur and no members of the public were present.

The Respondent's Submissions

44       The respondent says that the failure to comply with the timelines set out in clause 2.11.3 did not raise any unfairness, as it would have been unfair to the applicant to deal with the charges whilst he was on leave.  The purpose of clause 2.11.3 is to achieve a fair and expeditious process of discipline.  The respondent concedes that the timelines set out in clause 2.11.3 were not met but says that the objectives of expedition and fairness were met.  The history of the investigation shows the investigation was hampered by the applicant as he was not co-operative in providing information about witnesses when he provided a response on 22 June 2008 (Exhibit 2) to the notice that a disciplinary inquiry had commenced.  He could have provided a more comprehensive reply.  Transit Officers Arch and Coppin refused to answer questions, so the investigation did not run smoothly.  Consequently the investigator was not in a position to speak to the applicant until the middle of August 2009 which is six weeks after the investigation commenced.  The applicant, however, by that time had gone on leave.  The respondent properly achieved a balance between completing the process fairly and doing it quickly.

45       After his return to work from leave the applicant had two weeks to respond to the charges.  The respondent cannot be criticised for not addressing this matter with the applicant whilst he was on leave.  However, it is conceded that in refusing to adjourn the date of the second interview the respondent did put expedition over fairness.  Notwithstanding this there is no evidence before the Commission that the applicant suffered any prejudice as a result of the delay.

46       The respondent contends that the Commission should not interfere with the decision to dismiss unless the penalty falls clearly outside the range of penalties that could be imposed for the misconduct.

47       The penalty of dismissal was an appropriate penalty to be imposed on the applicant for the following reasons:

(a) The applicant lacks insight into the seriousness of the matter.  He was a public law enforcement officer.  As a Transit Officer he held a position of power and authority to deprive persons of their liberty, powers to seize and he does not display the maturity and trustworthiness required to perform the duties of the position.  The respondent says in particular the applicant by his actions demonstrated recklessness, weakness, immaturity, no understanding of the authority held as a Transit Officer and no real understanding of his position in the community.  He thinks that one set of rules should apply to him and another to members of the public.  The applicant gave in to peer pressure not only when he used the device but when he provided his response to Mr Kitis in writing on 22 June 2008.  The duties of a Transit Officer require a person who occupies such a position to act maturely in relation to events that occur on the spur of the moment and under pressure.  The applicant did not do so and shows himself to be a person who cannot resist peer pressure.

(b) The conduct in question was not just horseplay.  The applicant did not know if the device could have caused him harm.  The applicant was in uniform and could have been viewed by a member or members of the public.  The device presented to any observer as a weapon capable of causing harm.  In addition he was engaging in conduct that he would stop if a member of the public was engaging in such conduct.

(c) The conduct of the applicant could have harmed the reputation of the Public Transport Authority.

(d) The actions of the applicant were different to the actions of Transit Officers Coppin, Arch and Casey.  The applicant was the only officer who used the device and he allowed himself to be filmed.

48       The respondent says that in the event that the Commission is of the opinion that the dismissal of the applicant was unfair, the Commission should conclude that the applicant should have been transferred to a position such as a car park attendant or something similar.  The applicant should not be reinstated to the position of Transit Officer because he cannot be trusted to perform the duties of that position.

Conclusion

49       The question to be determined by the Commission is whether the legal right of the respondent to dismiss the applicant has been exercised harshly or oppressively against the employee, so as to amount to an abuse of that right (Ronald David Miles, Norma Shirley Miles and Lee Gavin Miles and Rose & Crown Hiring Service trading as The Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 at 386).

50       The applicant was summarily dismissed by the respondent.  As counsel for the respondent points out, where an employee is summarily dismissed, the onus is on the employee to demonstrate that the dismissal was unfair on the balance of probabilities.  However, there is an evidential onus upon the employer to prove that summary dismissal is justified.  The lawfulness or otherwise of the dismissal is but a relevant factor to be taken into account.  (Newmont Australia Ltd v The Australian Workers' Union, West Australian Branch, Industrial Union of Workers (1988) 68 WAIG 677 at 679).

51       The onus of proof rests upon the respondent to establish that it had the right to terminate the applicant's employment without proper notice (see Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 at 83 and Concut Pty Ltd v Worrell (2000) 176 ALR 693 at [51]).  There is no rule of law that defines the degree of misconduct which would justify dismissal without notice.  In Clouston & Co Ltd v Corry [1906] AC 122, the Privy Council at 129 stated:

… the sufficiency of the justification depended upon the extent of misconduct.  There is no fixed rule of law defining the degree of misconduct which will justify dismissal.  Of course there may be misconduct in a servant which will not justify the determination of the contract of service by one of the parties to it against the will of the other.  On the other hand, misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal.

52       A single act of disobedience will rarely justify summary dismissal except where the conduct has the quality that is wilful; in other words, the conduct connotes a deliberate flouting of the essential contractual conditions (see Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698 per Lord Evershed MR at 701).

53       The observations of Sams DP of the New South Wales Industrial Commission in Harrison and Donaldson may be of assistance in considering misconduct which occurs in the course of skylarking in a workplace of employees who do not form part of a disciplined law enforcement force.  However, it is my respectful opinion that the observations and the factual circumstances considered and the cases referred to in that matter are different to the considerations that apply to conduct in the nature of skylarking engaged in by law enforcement officers.

54       High standards of integrity in the performance of the statutory duties of the office of Transit Officers are required of all Transit Officers.  The Public Transport Authority and the public expect that only officers that are trustworthy to carry out their duties properly at all times should remain engaged as Transit Officers.  The effectiveness of the service provided by Transit Officers rests heavily upon the public's confidence in the integrity, honesty, conduct and standard of performance by individual Transit Officers.  Whilst on duty they should always act and be seen to act appropriately and beyond reproach.

55       Whilst I am not satisfied that the charge found to be proven against the applicant has been made out in that I am not satisfied that the applicant was in possession of a taser or similar device, I am satisfied that the device that emitted an electric spark used by him on two occasions in all the circumstances was an act of misconduct for which a disciplinary penalty should have been imposed.

56       Prima facie the misconduct by the applicant was serious for the following reasons:

(a) The incident took place whilst the applicant was on duty, in uniform and at a location which could be viewed by members of the public;

(b) The conduct of the applicant was conduct which he would have been expected to intervene in as a Transit Officer;

(c) The conduct of the applicant was unbecoming of the office of Transit Officer and could have caused damage to the reputation of the Public Transport Authority if the incident had been viewed by a member or members of the public by causing a loss of confidence in the ability of the Public Transport Authority and its officers to appropriately deliver services and exercise powers of law enforcement.

57       The Commission must consider whether the respondent exercised its legal right to dismiss the applicant for the misconduct harshly, oppressively or unfairly.  Whilst the misconduct could on one view be regarded as so serious to warrant dismissal, there are other factors that weigh against this conclusion, that when considered, render the dismissal of the applicant harsh and unfair.  The reason why I have reached this conclusion is as follows:

(a) I am satisfied the device in question can be described as a "toy".  It is plain from the video footage that it is not a taser.  Whilst emitting an electrical spark the device did not cause injury to the applicant.

(b) It is apparent from the video footage that after immediately using the device that despite feigning the effect of a jolt to his leg, he suffered no pain or discomfort other than a mild sting.

(c) The incident was very short.

(d) The time prescribed in clause 2.11.3 of the Enterprise Agreement for concluding process in respect of the disciplinary charges against the applicant was not complied with.  Although a breach of clause 2.11.3 has the effect that the termination is unlawful it does not follow the dismissal is unfair, harsh or oppressive.  However when this circumstance is considered together with the fact that Transit Officers Coppin and Arch were treated differently to the applicant this is one factor that mitigates in the applicant's favour and against the penalty of dismissal.

(e) The respondent gave insufficient weight to the fact that the applicant had provided to the respondent six years of unblemished service as a Transit Officer.

(f) Most importantly, the applicant did not act alone or without encouragement.  The actions of the Transit Officers Coppin, Arch and Casey also constituted misconduct.  Whilst the conduct of Arch and Casey may not be regarded as serious as the conduct of the applicant, I am of the opinion the conduct of Transit Officer Coppin was comparable.  Transit Officer Coppin was the person who brought the device onto the premises of the Public Transport Authority.  Early in the shift he discharged the device close to the applicant's neck in the Transit Officers' booth.  Further, it was Transit Officer Coppin who produced the device on the occasion that it was used by the applicant.  In my view, on the facts before the Commission in this matter the seriousness of the Transit Officer Coppin's misconduct cannot be differentiated from the applicant.  For reasons that may perhaps be referred to as "procedural estoppel", formal charges against Transit Officer Coppin did not proceed.  Formal charges did not proceed against Transit Officer Arch but he, like Transit Officer Coppin, was reprimanded.  It seems Transit Officer Casey left the employment of the Public Transport Authority so no disciplinary action was taken against him.  However, fairness demands that the applicant be treated consistently with Transit Officer Coppin and the penalty of dismissal set aside.

58       Whilst I have concluded that the applicant should not have been dismissed, I am not satisfied that the penalty of a reprimand only is an appropriate penalty.  Clearly the applicant's conduct can be distinguished from the conduct of Transit Officers Arch and Casey.  Although Transit Officer Coppin was only reprimanded for participating in the incident, if the disciplinary charges referred to in this decision had proceeded against him, his conduct, if found to be proven, would likely have warranted the imposition of a more serious penalty. 

59       Whilst I accept the respondent is concerned that the applicant lacks insight in relation to the proper discharge of duties as a Transit Officer, I am of the opinion that this is a matter that can be addressed by a direction by the respondent to the applicant that the applicant undergoes retraining in respect of his duties.

60       For these reasons I am of the opinion that the applicant was harshly and unfairly dismissed and the penalty that should have been imposed on the applicant for the misconduct is a reprimand and a suspension without pay from duty for a period of four weeks.  I have taken into account the fact that Transit Officers Coppin and Arch retained their employment with the respondent.  However, I have reached the view that a reprimand alone would not reflect the gravity of the misconduct and that a more punitive penalty was warranted.  A suspension without pay for four weeks is a penalty that would reflect the gravity of the misconduct and the fact that the conduct engaged in by the applicant was plainly unbecoming of a Transit Officer which should not be tolerated or condoned.  Prior to making any orders to give effect to these findings I will hear further from the parties.