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." Background and Chronology 5On the morning of 14 December 2009 Mr Smith was rostered to work a shift from 0238 hours, signing on at the Train Crew Assignment Centre ("TCAC") at Central. 6Mr Smith missed his nightrider bus to work from the Hornsby bus interchange, and telephoned the Crew Support Officer at TCAC, Greg Schloeffel at approximately 0120 hours to request that he be provided with a taxi to work. That request was denied. 7Mr Smith arrived at TCAC to sign on for his shift at 0320 hours. At that time the Crew Support Officer informed him that he would need to sign his timesheet as 'late on duty' ("LOD") from 0320 hours. 8Mr Smith disagreed with this and stated to the Crew Support Officer that if he was not signed on at his rostered time that he would "go home injured", or words to that effect. The Crew Support Officer signed Mr Smith on at the time he arrived, 0320 hours, and Mr Smith said, "bye, bye" and walked away, leaving the workplace. 9The matter was reported to the relevant Depot Manager, the Regional Crewing Manager, and later referred to RailCorp's Investigations Unit for investigation on 16 March 2010. 10Ms Bernadette Power, (previously an Investigator with the Investigations Unit), conducted the investigation and obtained various relevant emails relating to the incident and a number of business documents. 11Information about the incident was obtained from the following: Crew Support Officer TCAC, Greg Schloeffel, Train Crew Assigner, Charlie Formica, Shorelink Buses. 12On 23 April 2010, Ms Power sent a letter to Mr Smith requesting his response to allegations that he had breached the Code and/or the Leave Policy. C opies of the Code , the Leave Policy and the StateRail Discipline Policy were attached to the letter . 13On 30 April 2010, Mr Smith responded to the allegation letter by email and made the following comments: * The "bus failed to pick me up from the nightride bus stand at Hornsby." * The Station Manager at Hornsby rang TCAC. * "TCAC advised that they were not ordering a taxi and for me to wait for the next bus." * "On arrival at approximately 0320 hours the roster clerk advised me he was going to sign me on late." * "I then told him "you are punishing me for a bus driver that did not stop for me" and told him that I would go off injured unless he signs me on time." * "At approximately 0320 hours I relinquished duty." * "Later that morning I obtained a workcover certificate... as I felt bullied by the roster clerk to sign on late, this is what I claimed as my injury" * "It has always been standard procedure that train crew running late due to problems with public transport... are signed on at their rostered sign on time despite their late arrival." * "I was picked on by the roster clerk... as other crew ran late for work and signed on at their rostered sign on time by the same roster clerk that same morning." * "The bus operator has since acknowledged that the N80 from Hornsby at 0116 hours did not depart from the correct location from the bus interchange..." 14On 3 May 2010 Ms Power sent an email to Mr Smith inviting him to attend a voluntary disciplinary interview, this was declined by him. 15Ms Power considered the above evidence together with documentary evidence relating to Mr Smith's previous disciplinary conduct and found the allegations and particulars of allegation to be substantiated. 16Ms Power's investigation report was forwarded to RailCorp's Disciplinary Review Panel ("DRP") for consideration. 17On 12 July 2010 and 30 August 2010 the DRP considered the allegation against Mr Smith and the Investigation Report findings. The DRP made a preliminary recommendation that Mr Smith receive a suspension without pay for two consecutive working weeks. 18By letter signed and acknowledged by Mr Smith on 1 September 2010, he was advised of the preliminary view that he was to receive a suspension without pay for two consecutive working weeks. He was also afforded the opportunity to make a submission regarding the proposed outcome within seven days. 19Mr Smith provided a response to this preliminary view by letter dated 9 September 2010 and received by RailCorp on 24 September 2010. In that response, he stated the following: * "RailCorp has failed in their duty of care to provide an alternate means of transport..." * The Nightride bus service which is provided in lieu of a train service failed to stop at the designated bus stop..." * "While it is not part of RailCorp written policy it has been a standard form of utilising resources available at the time to get crew to their destination without incurring late running of timetabled services." * "I would like at this stage to apologise for my behaviour at the time but as you can probably appreciate I was under a bit of duress and was not thinking with a clear mind at the time." 20The DRP considered Mr Smith's response on 5 October 2010 and confirmed its preliminary view of a penalty of a suspension without pay for two consecutive working weeks. Mr Smith was notified that he was to receive a suspension without pay for two consecutive working weeks by letter signed 14 October 2010 and acknowledged by him on 15 October 2010. Respondent's Case 21Rail Corp presented its case first in accordance with s.16 (1) of the Transport Appeal Boards Act 1980. 22The Board was referred the relevant extracts of the Code of Conduct concerning "Acceptable behaviour and responsibilities." It was submitted that as Mr Smith had attended a RailCorp Code of Conduct briefing on 14 May 2007 he therefore knew, or ought to have known, of his responsibilities under the Code . 23It was submitted that Mr Smith's behaviour as set out in the allegations was in breach of the Code in so far as he: * Failed to comply with the behaviours outlined in the Code. * Failed to act in the best interest of RailCorp. * Failed to m aintain and promote high levels of acceptable behaviour. * Failed to maintain a 'Just Culture where employees are treated fairly and justly. * Failed to comply with legislation, awards, policies, procedures, rules and job requirements. * Failed to carry out his duties carefully, safely, honestly, courteously and fairly. * Failed to treat members of the public fairly and consistently. * Failed to be honest and accurate in timekeeping requirements. * Failed to maintain full and accurate records of work performed. * Failed to carry out a lawful direction from his managers/supervisors to work when required as by his roster. 24The Board was also referred to relevant extracts from the State Rail Authority Leave Policy. It was submitted that by relinquishing duty shortly after 0320 hours, without having leave approved, Mr Smith was also in breach of his responsibilities under the Leave Policy . 25RailCorp summarised the relevant evidence on which it relied. 26It was submitted in reply to Mr Smith's response to the first allegation, that his behaviour in telling Mr Schloeffel "you are punishing me for a bus driver that did not stop for me", and his admission that he said that he, "would go off injured unless he sign[ed him] on time" amounted to unacceptable behaviour and a breach of the Code . 27The circumstances under which the Mr Smith missed his bus on 14 December 2009 were largely irrelevant. It was his behaviour later that morning that was in issue. However, it was worth noting that he was aware of (or had seen) the bus in question stop at a nearby stop that morning and also sent an email of complaint to the bus company. 28In Mr Smith's responses to RailCorp he failed to mention that the bus picked up passengers from stand D, nearby the usual stop at stand C. 29It was submitted that in the absence of claims that the bus ran early, and in circumstances where the bus left from a nearby stand (for whatever reason), the credible explanation as to why Mr Smith missed his bus that morning is simply that he was running late to the Hornsby bus exchange due to his own fault. In such circumstances, it was not credible that he would consider it appropriate to seek that RailCorp provide him a taxi to work. 30Common sense dictated, and the evidence of Mr Formica and Mr Schloeffel confirmed, that it was a driver's responsibility to get himself to work and that taxis will only be called in limited circumstances. This was explained to Mr Smith via the telephone request and he followed Mr Schloeffel's advice that he should take the next available transport to work. 31The RailCorp Taxi Travel Procedure sets out the conditions under which a taxi service will be provided to train crew or Operational Standard Managers for operational purposes. 32Mr Smith's contention that as a long-standing driver with RailCorp, it was appropriate for him to be signed on as per his roster, was also not credible. Mr Smith knew, or ought to have known, that the proper practice was for him to sign his timesheet to accurately reflect his hours worked. Regardless, Mr Schloeffel then explained to him that he was required to sign on 'LOD' at 0320 hours. When he refused to accept this position and "demanded" that he be signed on as per his roster, and threatened Mr Schloeffel that he would go home "injured", his behaviour was belligerent and "bratish" and went from being questionable to unacceptable, and was therefore in breach of the Code . 33It was further submitted that by his actions, Mr Smith put his co-workers in a difficult situation. Mr Formica confirmed that, "[n]either Greg Schloeffel nor I had the authority to sign Michael Smith on at a time other than his arrival time at 0320 hours under the circumstances that he reported on 14 December 2009." 34Overall, it is clear that Mr Smith knew, or ought to have known, that under circumstances where he missed his bus to work through no fault of RailCorp, it was unreasonable for him to expect RailCorp to provide him with a taxi to work and unacceptable for him to "demand" that his co-worker record false information on his timesheet. 35In relation to the second allegation Mr Smith initially, and throughout the investigation, claimed that he relinquished duty and obtained a WorkCover certificate from his doctor because he "felt bullied by the roster clerk (Mr Schloeffel) to sign on late". Significantly, he did not, at the time, or at any stage throughout the disciplinary process, specify what Mr Schloeffel said or did to cause him to feel bullied. Nor had he lodged a complaint against Mr Schloeffel for his actions on 14 December 2009. 36Mr Smith also reported the incident to the injury hotline that morning, claiming that the incident caused stress. 37Mr Smith now claimed that he did not relinquish duty as he did not sign on. This was a convenient argument constructed in hindsight and for the appeal. 38It was submitted that while an employee was entitled to relinquish duty in circumstances of injury or illness, for Mr Smith to do so in the circumstances of 14 December 2009 was at best, questionable. Regardless, management took his claim of injury seriously, arranged a medical review, and held a meeting with him to understand why such a minor incident caused him such stress. Particularly, given that drivers are required to act professionally in demanding and some times stressful situations such as near hits and fatalities. He made no attempt to explain his actions then, nor has he done so since - other than to maintain his untenable position that he was entitled to behave as he did. 39It was submitted that it is a standard, ongoing direction, and fundamental job requirement, that employees report for work on time as directed by their pre-scheduled rosters. 40It was submitted that the circumstances on which Mr Smith sought to rely as his reasons for relinquishing duty on 14 December 2009 were insufficient to mitigate the unacceptable nature of his actions, which amounted to a breach of the Code and the Policy . 41The DRP considered that suspension without pay for two consecutive working weeks was the appropriate penalty for the Appellant in the circumstances. 42In considering the appropriate penalty for Mr Smith's actions, the DRP took into account the email of Craig Dance, former Regional Crewing Manager, dated 11 July 2010 which states that: The policy is that Crew are to arrive on time and any time they do not they are to be signed on late on duty (LOD). However, as both Just Culture and common sense recognises that from time to time events outside of an individuals control occur... the Attesting Officer may offer a small level of flexibility. The crew member would be clearly aware that this is not a "right" and also that the procedure would be that they are signed on late and can "challenge" via their Depot Manager, who will consider the circumstances and decide whether to agree to full payment. 43The evidence of Mr Formica confirmed this as the standard procedure. 44Mr Smith's prior disciplinary history was also detailed and summarised: * Failed to follow directions and procedures for an incident that had occurred. No disciplinary penalty was imposed and he was directed on 24 August 2006 to participate in a mediation with another employee. * Received a reprimand and counselling for unacceptable behaviour including inappropriate comments to a female drug testing officer in March 2008. * Issued a final warning on 9 October 2009 for unacceptable behaviour involving his failure to report to TCAC to work as directed on his rostered schedule on 10 July 2009. 45It was submitted that these disciplinary matters ought to have reinforced the need for Mr Smith to maintain acceptable behaviour in the workplace. RailCorp had taken all reasonable steps to ensure that he received sufficient training/counselling and information about his responsibilities for acceptable behaviour under the Code . 46Mr Smith's behaviour on 14 December 2009 displayed a failure to properly accept and respect RailCorp's Code , policies and procedures requiring him to act in a professional and appropriate manner in the workplace. 47In reply to the written statement submitted by Mr Smith it was submitted that he had provided significantly more detail than he had previously provided during the course of the disciplinary process. This information was only provided after he had had the benefit of reading RailCorp's written case and accompanying witness statements. 48While Mr Smith was seeking to rely on the frustration he may have experienced in relation to the circumstances that took place prior to the incident in question, it was submitted that this was insufficient to mitigate his misconduct, which was unacceptable and in breach of the RailCorp Code of Conduct . 49Mr Smith had submitted that on 14 December 2009, because he was feeling anxious and upset, he should not be at work and that as a train driver, he should not sign on for duty under the RailCorp Are You Okay? principle (Exhibit 3). However he never said this at the time nor did he indicate that he was anxious, he simply said "bye bye". This was discourteous to Mr Schloeffel and he also failed to show respect for him by pressuring him to falsify his time sheet. 50By walking away when he failed to get what he wanted Mr Smith failed to follow a direction. That direction did not have to be issued every day it was implicit in RailCorp's requirements that he present for duty and work his rostered shifts. 51He now said he was anxious and that he was not fit for duty The stress was generated by his own behaviour. If he had concerns then he should have spoken to Mr Formica or another supervisor and or phoned management later that day. It was a reasonable expectation by RailCorp for drivers to report for work. There were procedures in place if they were not fit for duty but these were not followed by Mr Smith. 52It was submitted that it was concerning that his comments during the hearing indicated that he still didn't agree with RailCorp's policy and procedures. 53It was submitted that the penalty imposed by RailCorp, a suspension without pay for two consecutive working weeks, was a reasonable response to Mr Smith's behaviour in the circumstances. 54It was further submitted that in light of Mr Smith's ongoing attitude, including his sustained 'not guilty' plea, a more severe penalty would be equally appropriate to impress upon him the need to adapt his behaviour in the workplace in future. It was open to the Board to increase the disciplinary penalty imposed upon Mr Smith that was considered appropriate. 55RailCorp maintained that the Mr Smith had committed breaches of RailCorp's Code of Conduct and the StateRail Authority Leave Policy for which a reasonable disciplinary penalty had been recommended. 56It was therefore respectfully submitted that Board not allow the Appellant's appeal. Appellant's case 57It was submitted that Mr Smith did not sign on and he did not relinquish duty on 14 December 2009. No manager was available to talk to him at 3.20 am. He was not trying to manipulate the system. 58It was his evidence that the nightrider bus was often parked at the other stand with the driver involved in other activities such as cleaning. When he missed the bus he immediately informed the Duty Manager at Hornsby and he was told to catch the next bus which he did. 59Mr Smith objected to signing on late and did the right thing by not driving the train because of his anxious state. Mr Smith took the correct course of action in doing this. 60It was further submitted that it was unclear how RailCorp applied its taxi policy. 61It was submitted that the penalty of two weeks suspension of pay was too harsh in all the circumstances, as in monetary terms this meant more a loss in a Train Driver's pay of more than $3000. 62It was submitted that a lesser penalty should be applied, that of counselling, as it was clear that Mr Smith was not able to properly articulate his situation to his colleagues on 14 December. The Evidence 63RailCorp's tendered material consisted of its written case setting out the relevant background and chronology; the investigation report and attachments; relevant emails, Mr Smith's disciplinary record, relevant documents relating to the course and conduct of the disciplinary process; copies of relevant policies and procedures and its written response to Mr Smith's witness statement (Exhibits 1 and 2). RailCorp's material included statements from: Mr Greg Schloeffel, Crew Support officer and Mr Charlie Formica, Crew Assignment Officer, who were not required for cross-examination. 64Mr Schoeffel indicated in his statement the circumstances of when RailCorp provided a taxi (where a driver is running late through "no fault" of his own and there was another driver available on "standby"). A taxi could only to be approved by certain authorities such as a TCAC Team Leader or Rail Management. Mr Formica had a standby driver available hence a taxi was denied. When Mr Smith arrived at 0320 and was informed by him that he was required to sign on "Late on Duty" he was unhappy and stated that it was not his fault, he had missed the bus at Hornsby. He demanded to be signed on "okay" or he would be going home "injured". Mr Schloeffel had attested him on at 0320 hours and handed him his timesheet to sign. He said, "bye bye" and walked away leaving the TCAC. There were no raised voices and it was all over a couple of minutes. Mr Schloeffel later reported the incident to the Depot Manager by email. 65Mr Formica's evidence confirmed the actions he took in allocating a standby driver. He also confirmed RailCorp's Taxi Policy and gave examples such as where there was an overhead wire down and it was RailCorp's responsibility to get the driver to their home or Depot; or certain depots where due to safety concerns a taxi might be provided for a driver after dark etc,. Usage of taxis was audited by management and their use had to be justified. 66Mr Formica stated that if Michael Smith had a genuine and work-related reason for missing his bus which made him late for his shift on 14 December 2009 he should have signed on at the time he arrived and later approached the Depot Manager to request that his timesheet changed. 67Neither Mr Formica nor Mr Schloeffel had the authority to sign Mr Smith on at a time other than his arrival time at 0320 hours under the circumstances that he reported on 14 December 2009. 68Mr Smith gave oral evidence in addition to his written statement (Exhibit 4). 69The Board also asked questions of clarification. 70Mr Smith outlined the events that occurred on 14 December 2009. There was high pressure cleaning going on in the immediate area. There were no other persons waiting for the bus. A bus arrived at another rank that he now knew was rank D, the headlights were shining. When the bus departed he could see the number was N80, he waved his arm to indicate he wanted to get on but it continued on past him. He went and told the Duty Manager at Hornsby what had happened and asked that alternative travel be arranged. This was declined and he was told to catch the next bus. 71When he was subsequently told that he would be signed on at 0320 hours he objected to this because it was not his fault that he was late for work. He was feeling very anxious and upset and would have been on time to work if a taxi had been provided. Because he was feeling anxious and upset he considered that he should not be at work because a train driver was a safety critical position and under the RailCorp's "OK" policy he should not sign on for duty. He was not aware that this was not a formal RailCorp policy. 72He maintained that he did not relinquish duty as he did not sign on but advised the booker that he was injured and would not sign on. He believed in doing so he was following the "are you okay policy". He did not feel in a fit state. 73He did not disregard any directions, as no directions were given to him. No direction was given to him by either Mr Schloeffel or Mr Formica Mr Formica was not in the room at that time. 74Mr Smith agreed that he intended to present himself for work, that he waited for the bus for an hour, that he then presented for work, was prepared to work and would have worked if he had been signed on at the normal time. He acknowledged that he had no leave approved and did not ask for leave. He issued a conditional threat that amounted to sufficient notice of illness or injury. 75He believed it was RailCorp's responsibility to provide a service to enable him to get to work and that was in legislation. He also believed that the provision of a taxi was part of RailCorp's customer service. He still did not agree with RailCorp's decision not to provide a taxi for him. 76He acknowledged that Hornsby was a major bus interchange and that if he felt unsafe he had the opportunity to go and wait with the Duty Manager at Hornsby Station. 77He agreed that he found the one-hour wait for the next bus frustrating and agreed he was still intending to present for work. He was anxious and upset about his treatment by Mr Schloeffel. He did not consider what he said to him to be a threat it was simply "a statement of the fact". He agreed that Mr Schloeffel was doing his job and that made him anxious. 78He also agreed that he did not say anything about the "are you okay policy". He didn't think he had to specify it. It was a policy that also covered anxiety issues. He also didn't go and find Charlie Formica or call him. However he did subsequently ring in to say he was feeling okay to do his next shift. 79He acknowledged that he had been trained to adapt to different situations and be safety aware and in more critical situations than had occurred that night. 80He maintained he was not in a fit state as he was upset and as a train driver he needed to be observant on the track ahead as if he had had an accident it would have serious consequences and would lead to him being taken off train driver duties for several weeks. Findings 81The Board has carefully considered the evidence and submissions of the parties in this matter. 82It is clear from the evidence that Mr Smith had every intention of presenting for work and carrying out his duties on 14 December 2009. It is accepted that it was not his fault that he missed his nightrider bus, but it was not then RailCorp's responsibility to get him to work.. It was totally inappropriate for him to attempt to have Mr Schloeffel sign him on at his rostered time rather than at the later time he actually presented for work. It was also totally inappropriate for him to refuse to sign on at the time he arrived, namely 0320 hours. The appropriate course of action for Mr Smith to have taken, as it would be for any worker in such a similar situation, would have been to sign on at the time he actually arrived, speak to his supervisor and subsequently contact management to seek have the situation appropriately addressed. It was clearly not a situation that was within the authority of either Mr Schloeffel or Mr Formica to rectify at that time. 83The Board finds it difficult to accept that the action Mr Smith took was due to his "anxious" state rather than simply out of anger and frustration at the refusal of Mr Schloeffel to allow him to sign on at his scheduled rostered time. This was essentially a "tit for tat" action with no explanation given by him nor any opportunity provided for sensible discussion with the chance to obtain advice from his supervisor as to how best to proceed. Whilst that may possibly have raised an issue about his fitness to drive at that initial point in time , he did not actually raise that as an issue with either Mr Schloeffel or Mr Formica or anyone else before simply walking off. Mr Smith needs to accept responsibility for his inappropriate actions, which were a clear breach of the Code . 84The Board also notes that Mr Smith does not have an unblemished disciplinary record which includes a final written warning. 85The Board considers that the disciplinary penalty applied by RailCorp in all the circumstances is appropriate. Order(s) The appeal is disallowed. Elizabeth Bishop Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 April 2011