Sikka v Roads and Maritime Services (No. 2) (GD)

[2013] NSWADTAP 48

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Sikka v Roads and Maritime Services (No. 2) (GD) [2013] NSWADTAP 48

Hearing dates:

10 October 2013

Decision date:

25 October 2013

Jurisdiction:

Appeal Panel - Internal

Before:

Judge K P O'Connor, President
A Scahill, Judicial Member
M Bolt, Non-judicial Member

Decision:

1. Appeal dismissed.

2. Decision of respondent affirmed.

Catchwords:

OCCUPATIONAL REGULATION - Appeal - Extended to Merits - Fitness - Consideration of Driver's Explanation for Alleged Misconduct - Explanation not accepted - Decision affirmed

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990

Cases Cited:

Sikka v Roads and Maritime Services (GD) [2013] NSWADTAP 28

Category:

Principal judgment

Parties:

Amit Sikka (Appellant)
Roads and Maritime Services (Respondent)

Representation:

M Jools (agent by leave, Appellant)
A Wozniak, Smythe Wozniak Legal (Respondent)

File Number(s):

139010

 Decision under appeal 

Citation:

Sikka v Roads and Maritime Services (unreported, 11 March 2013)

Date of Decision:

2013-03-11 00:00:00

Before:

General Division

File Number(s):

123138

reasons for decision

1. This is the second decision in an appeal brought by Mr Sikka. Mr Sikka has applied to the Tribunal for review of a decision by Roads and Maritime Services (RMS) as administrator of the Passenger Transport Act 1990 to cancel his taxi driver authority issued under that Act. The Tribunal affirmed the cancellation. Mr Sikka appealed to the Appeal Panel. In our earlier decision, we accepted Mr Sikka's objection that the Tribunal's reasons were inadequate, set aside the Tribunal's decision and extended the appeal to the merits: Sikka v Roads and Maritime Services (GD) [2013] NSWADTAP 28 (28 June 2013). The RMS decision remained unaffected.

1. (As permitted by s 79 of the Administrative Decisions Tribunal Act 1997, the Appeal Panel has been reconstituted with Judicial Member Scahill replacing Ms Huntsman, who became unavailable following her resignation as Judicial Member to take up an appointment as a Magistrate. The parties consented to this replacement.)

1. On 30 July 2013 the Panel issued directions allowing the parties to file additional material. On 7 August 2013 the Panel (constituted by the President sitting alone for this purpose) refused an application by Mr Sikka for a stay of the RMS decision, so that he might be permitted to resume work as a taxi driver pending resolution of the appeal. He had the benefit of a stay during the period the case was before the Tribunal below (31 May 2012 to 11 March 2013) and for a further period after lodgment of the appeal (25 March 2013 to 23 April 2013).

1. RMS filed a supplementary statement from Ms Minerva Mikhael, customer services manager, GM Cabs. At the Appeal Panel hearing on 10 October 2013, Mr Sikka's agent, Mr Jools, handed up a short document containing some queries in relation to Ms Mikhael's statement. Ms Mikhael attended, and was cross-examined. Mr Sikka gave evidence supplementary to that previously given by him to the Tribunal, was cross-examined and answered questions from the Panel.

1. The concern that led the Appeal Panel to the view that the Tribunal's reasons had been inadequate related to its non-response to the defence of machine error that Mr Sikka has pressed in answer to the key concerns that led RMS to decide to cancel his authority.

RMS Concerns

1. The key concerns were (1) an in-cab payment transaction involving a credit card, where the customer's credit card was charged twice in different amounts for the one fare (21 June 2011, complaint lodged with RMS 1 August 2011); and (2) the discovery, as a result of the RMS investigation of that complaint, that Mr Sikka had been questioned on 21 July 2011 by Ms Mikhael whose company, GM Cabs, supplied the in-card credit card terminal used by Mr Sikka, over numerous double-charges. He had agreed to refund $3406. In all instances the second transaction had occurred a very short time after the first transaction, usually around 50-60 seconds later.

1. In the instance of the item (1) transaction, the two merchant slips were in evidence. The first slip was accepted as authentic (in the amount of $25.25, time imprint - 17:02). RMS and the Tribunal on review accepted that the second slip (for $58.83, time imprint - 17:03) was not signed by the passenger and that the signature that appeared there was forged.

1. In all the item (2) matters, the slips themselves were not in evidence. Instead RMS relied upon GM Cabs' computer records of the slips presented to it for processing by the driver at the end of the shift against which immediate cash payments had been made to the driver.

1. In her evidence to the Appeal Panel, Ms Mikhael explained that when repeat complaints are received from passengers over apparent double-charging, or when a bank makes contact with a customer query, the relevant records are examined, and the driver who has the terminal shown is questioned. Mr Sikka had been with GM Cabs for about two years without incident when 'chargeback' complaints commenced to be received both direct from customers and from banks around June-July 2011.

1. She called Mr Sikka into her office after hours on 21 July 2011, and she opened the computer records on-screen. Prior to the meeting, he had on 19 July 2011 returned the terminal involved in the disputed transactions and was issued with a new terminal. He had used that terminal since 4 May 2010.

1. GM Cabs' accountant, Mr Diab, was also present at the meeting. Ms Mikhael and Mr Sikka agreed that there were numerous instances of second charges against a credit card and they were very close in time. After discussion he agreed to refund the second of the charges, and accepted her calculation of the total amount, i.e. $3406. She explained that she was keen to resolve the matter quickly to avoid having her company billed by the bank at the rate of $30 per dispute transaction if it was left to effect the refunds. He made the repayment about a month later, in mid-August. By that time he had been advised by RMS of the complaint in respect of the 21 June 2011 transaction.

Driver's Explanation

1. Mr Sikka has contended throughout these proceedings that a terminal fault must be the explanation for what occurred. He said all he did at the end of his shift was present all slips for cash payment unaware that there were second slips affecting some of the fares done during the shift. He said he repaid the amount of the second charges identified at the meeting because he was worried he might lose his job, not because he had done anything wrong.

1. Mr Sikka also relies in his defence on a statement made by Ms Mikhael at the interview that terminals were sometimes faulty and sometimes wrongly issued a second slip. He also referred to a letter written by Ms Mikhael some time later, 14 July 2012, 'to whom it may concern' stating that: 'Mr Sikka had our eftpos terminal which was changed over to a new terminal due to incorrect programming. Currently has a working eftpos terminal with no errors.' Ms Mikhael stated in her record of interview with RMS compliance officers dated 31 January 2013 that she had agreed to give him such a letter if he paid back the second charges.

1. The Tribunal below regarded Mr Sikka's explanation as implausible, but did not spell out why. In the circumstances, given the attention the defective-machine defence had received in the course of the proceedings, we considered that unsatisfactory.

1. Ms Mikhael explained to the Appeal Panel, as she had to the RMS inspectors and to the Tribunal below, that she had dealt with Mr Sikka on the basis that if he reimbursed to GM Cabs the $3406 she would take no further action in the matter, and treat it as closed. She stated that it was not her company's practice to report drivers to RMS or the police over matters of this kind.

1. Importantly, in her additional statement presented to the Appeal Panel, she attached a complete transaction history where credit cards had been used in relation to the terminal issued to Mr Sikka covering the period 1 June 2011-28 July 2011. She marked 57 transactions as involving a second charge to the same card usually within a minute of the first charge, the first suspect transaction occurring on 9 June 2011 and the last on 21 July 2011. The transactions were spread across 28 driving days. This provision of a complete list met one of the criticisms made by Mr Jools for Mr Sikka both before the Tribunal below and at the appeal hearing, i.e. that the transaction history presented to that time had been selective and only a sample.

1. The suspect second charges were usually in an amount different from the first charge, and all but three involved a higher amount. There were several instances where a second charge was in the same amount across different transactions involving different cards (Mr Wozniak referred for example to transactions 1, 4, 11, 16, 43 where the second charge was $61.05).

Assessment

1. As to the reliability of the terminals, we accept Ms Mikhael's evidence, and in that regard also refer to Mr Diab's evidence (recorded in the Tribunal's reasons), that the kind of terminal issued to Mr Sikka at the time of the transactions was capable of issuing a second transaction slip quickly after a first transaction slip in respect of the same card. In the case of the kind of terminal supplied to Mr Sikka in 2010 the card could be swiped a second time unless it had an internal security feature (say a ten minute bar) that prevented that. In her experience, some cards used by customers did have that feature. She said that none of the 60 or so passengers had travelled twice or authorised the second payments.

1. In Ms Mikhael's opinion, for a second transaction to be recorded against the same card, it would be necessary for a second swipe action to occur. That would ordinarily be undertaken by the driver. We accept her evidence as to this matter.

1. We reject Mr Sikka's assertion that this history could be explained by a machine fault, an assertion for which he produced no independent evidence in support.

1. It is regrettable that Ms Mikhael said what she did to Mr Sikka at the beginning, and issued the letter to that effect. She has been candid with the inspectors and the Tribunal over why she said what she said to Mr Sikka at the time.

1. In our view, it involved no more than a manager saying something comforting to a driver who was faced with a situation that threatened his livelihood, and might well have led to police charges. We do not accept Mr Sikka's assertion that the words of threat were used by Ms Mikhael and he felt compelled to make the refund. We note in that regard that the actual payment of the refund did not occur on the day itself of the interview, but four weeks later not long after he got notice that the RMS inspectors were investigating the complaint the subject of item (1).

1. In our view the Tribunal below rightly drew an inference, contrary to Mr Sikka's assertions, that his actions were consistent with him having done wrong.

1. Further in our view the following inferences can comfortably be drawn from the evidence as it relates to the item (2) transactions: Mr Sikka swiped the passenger's card the second time; and Mr Sikka, as he would have done when performing the first transaction, inputted the amount to be charged and consistently inputted an amount different from the first amount and usually inputted an amount that was higher.

1. As to the item (1) transaction, there is no doubt that the passenger signature that appears on the second docket is a forgery. In our view, the inference is inescapable that Mr Sikka was the author of the second signature. There is no dispute that Mr Sikka was the driver who dealt with that passenger, and the docket was one of those presented for encashment by Mr Sikka at the end of the shift.

1. As Mr Wozniak has submitted, Mr Sikka's conduct in respect of item (1) would be sufficient to justify RMS forming the view that he had displayed a lack of the honesty and integrity required of a taxi driver. To that must be added our findings in respect of the item (2) transactions.

1. Mr Sikka had a relatively unblemished history in his first two years as a driver. He has pressed the view that in the several months he continued to drive while the case was before the Tribunal below, he has not offended in any way. We accept, in principle, that he should be accorded some recognition for his good history over the stay period.

1. However, we are not satisfied that we should ameliorate RMS's decision in the way sought by Mr Sikka. He put to us that he should be granted a conditional licence, say for six months.

1. In our view, Mr Sikka has not come to terms with his misconduct. He does not acknowledge that he did anything wrong. He has a misplaced belief that RMS and GM Cabs are in league to stop him working as a driver. His belief that the machine is to blame is far-fetched. Until he accepts responsibility for his misconduct, and can show that he has taken steps that might suggest he could be again trusted to conduct himself with honesty and integrity, he must be regarded as not fit to be granted a driver authority.

Order

1. Appeal dismissed.

2. Decision of respondent affirmed.

Decision last updated: 25 October 2013