Smith v RailCorp [2011] NSWTAB 7

Transport Appeal Boards New South Wales Medium Neutral Citation: Smith v RailCorp [2011] NSWTAB 7 Hearing dates: 14/02/2011 Decision date: 15 February 2011 Jurisdiction: Civil Before: Bishop C (Board) Decision: The appeal is disallowed Catchwords: PUBLIC SERVICE - discipline - rail employee - late for duty -not driver's fault - refused to sign as late for duty - relinquished duty - claimed not fit to drive due to anxiety - no discussion with supervisors sought - previous disciplinary history - suspended without pay for two weeks - appeal to Transport Appeal Board - plea of not guilty. HELD - appeal disallowed - actions inappropriate in all of the circumstances. Legislation Cited: Transport Appeals Board Act 1980 Category: Principal judgment Parties: Michael Smith (Appellant)

Rail Corporation of NSW (Respondent) Representation: Mr M Cartwright, Rail Tram and Bus Industry Union (Appellant)

Ms A Baxter (Respondent) File Number(s): TAB 1596 of 2010

DECISION

Introduction 1Mr Smith commenced employment with RailCorp (and/or its predecessors) on 17 August 1992 as a Junior Station Assistant and then Guard, he became a Trainee Driver and then Driver in 1999 and continued as a Driver, holding that position, based in Sydney, at the time of the incident concerned. 2On the 15 October 2010, Mr Smith was notified that he was to receive a suspension without pay for two consecutive working weeks for breaches of the RailCorp Code of Conduct (the " Code "). 3On the 18 October 2010, Mr Smith lodged an appeal against his two week suspension without pay indicating a plea of not guilty to the allegations against him. 4The allegations that were put to Mr Smith by RailCorp are as follows: 1. It is alleged that you engaged in unacceptable behaviour which amounts to a breach of the RailCorp Code of Conduct on 14 December 2009 by asking the roster clerk to record your arrival-for-duty time as earlier than the time you actually arrived. The particulars of the alleged breaches are: a. On 14 December 2009 you were rostered on at 0238h. b. You reported for duty at approximately 0320h. c. You said to the roster clerk words to the effect, 'Unless you record my arrival as being the rostered-on time, I will go off injured.' d. The roster clerk recorded your start time as 0320. 2. It is alleged that you engaged in unacceptable behaviour which amounts to a breach of the RailCorp Code of Conduct and/or the StateRail Authority Leave Policy on 14 December 2009 by failing to work as directed. The particulars of the alleged breach(es) are as follows: a. On 14 December 2009 you were rostered on to start work at 0238h to work 1218 roster. b. You reported for duty at approximately 0320h. c. You relinquished duty shortly afterwards. d. You did not have leave approved for this shift."