Emmery and RailCorp [2011]NSWTAB [2011] NSWTAB 8

Transport Appeal Boards New South Wales Medium Neutral Citation: Emmery and RailCorp [2011]NSWTAB [2011] NSWTAB 8 Hearing dates: 6 April 2011 Decision date: 20 May 2011 Jurisdiction: Civil Before: Macdonald C (Board) Decision: (1) The appeal is allowed (2) The decision of RailCorp to dismiss Mr Emmery is set aside and he is reinstated to the position of Senior Passenger Assistant with date of effect of 19 January 2011 (3) RailCorp is to make a payment to John Emmery, within fourteen (14) days of the date of this decision, being the amount of pay he would have received as a Senior Passenger Attendant from RailCorp, being for the period 20 January, 2011 to the date of reinstatement of John Emmery into his former position. (4) The continuity of John Emmery's employment with RailCorp is taken not to have been broken by the decision of RailCorp to dismiss John Emmery. Catchwords: PUBLIC SERVICE - RailCorp - employee engaged as Senior Passenger Assistant - employee also engaged in secondary employment - employee found by RailCorp not to have disclosed nature of work of secondary employment - employee had declared he was engaged in secondary employment but RailCorp said he had not disclosed a change in the type of secondary employment - employee held to have breached RailCorp Code of Conduct - employee dismissed - Appeal by employee to Transport Appeal Board - plea of not guilty by employee - reinstatement sought - HELD - employee claimed he had made a 2006 declaration and application - employee claimed this evidence showed he had made the necessary disclosure as to secondary employment and therefore he had not breached Code of Conduct - RailCorp had misplaced or lost employee's 2006 declaration but had notation in his personal file about a 2006 declaration - RailCorp has responsibility for maintaining employees' employment records - legal effect of RailCorp not maintaining employee's 2006 declaration - Board held employee to be a witness of truth - evidence of RailCorp against employee considered - appeal allowed - appropriate orders including reinstatement made. Legislation Cited: Transport Appeal Boards Act 1980 Cases Cited: Ray v Radano (1967) AR 471 Category: Principal judgment Parties: John Emmery (Appellant)