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) Rail Corporation of NSW (Respondent) File Number(s): TAB 18 of 2011 DECISION INTRODUCTION 1John Emmery (the appellant) commenced employment with the Rail Corporation of NSW ("RailCorp") on 24 November 2003 as a Passenger Attendant. He had previous service with the State Rail Authority from 1986 to 1992. On 6 March 2005, the appellant was transferred to Albury in the role of Passenger Attendant. On 27 May 2007, he was promoted to the role of Senior Passenger Attendant. He remained in that role until his dismissal on 19 January 2011. Mr Emmery has appealed that dismissal to the Transport Appeal Board ("the TAB"). BACKGROUND 2Mr Emmery (the appellant) was employed as Senior Passenger Attendant at the time of the events that led to his dismissal. 3In 2010, the RailCorp began an investigation into the appellant's secondary employment activities. Information had been provided to RailCorp that the appellant was advertising tiling and bathroom renovation work in a local newspaper and he had not declared this work as secondary employment to RailCorp. 4On 15 September 2010, RailCorp (per Mr Michael Crimmins of the respondent's Investigation Unit) forwarded a letter to the appellant notifying him of the allegation that he had breached the RailCorp Code of Conduct ("the Code") in not advising RailCorp of his secondary employment. (Ex 1, Annex 6) 5On 21 September 2010, the appellant responded per his instructing solicitor. (Ex 1, Annex 10) The allegation of breach of the Code was denied. 6Mr Crimmins invited the appellant by letter of 14 October 2010 to attend a disciplinary interview on 20 October 2010. (Ex 1, Annex 14). The appellant responded by letter of 18 October 2010 advising of his complete co-operation in the investigation but said he was "unable to attend" the planned meeting. (Ex 1, Annex 15) (The TAB notes that the respondent's Written Case stated that the appellant "declined the interview" - Ex 1, para 9). 7Mr Crimmins concluded that the allegation was substantiated. On 14 December 2010, Mr Crimmins investigation report was forwarded to the Disciplinary Review Panel ("the DRP") for consideration. (Ex 1, Annex A) 8The DRP reviewed the evidence in relation to the allegation and made a preliminary recommendation that the appellant be dismissed. 9On 22 December 2010, Mr Tony Eid, Deputy Chief Operating Officer and General Manager Operations, wrote to the appellant advising that the allegation against the appellant had been substantiated - that this represented a breach of the Code - and that the preliminary view of the appropriate disciplinary outcome was dismissal. The appellant was invited to respond to the proposed outcome. (Ex 1, Annex D) 10The appellant's solicitor provided a response by letter of 23 December 2010. Amongst other defences put by the solicitor, he stated that the dismissal was "in all the circumstances, an entirely inappropriate, draconian and disproportionate outcome". (Ex 1, Annex E) 11The solicitor's letter was reviewed by Mr Crimmins of the Investigation Unit. He reviewed, as well, two letters dated 29 December 2010 from the appellant to the appellant's manager, Mr Jim Macklan, Team Leader South, Country Link. (Ex 1, Annex F) Amongst other things, the appellant stated that he had submitted a new secondary employment form several weeks prior to Mr Macklan but there had been no response. This application was made on 18 October 2010, according to the witness statement of Jim Macklan and was declined by letter of 23 December 2010. (Ex 1, Annex G) 12On 17 January 2011, Mr Crimmins provided an extensive memorandum on the case against the appellant to Ms Belinda Henry, Legal Manager, Employment. (Ex 1, Annex HI) 13The Crimmins' memorandum addressed the issue of the appellant's failure to declare his secondary employment. In particular, the memorandum discusses the appellant's defence that he had notified of his activity of secondary employment in 2008 but at a later time had failed to advise of a change (2009) in the nature of that secondary employment and therefore the allegation against the appellant should only be that he failed to notify of a change in the nature of the secondary employment. That defence is rejected by Mr Crimmins. Other defences/issues raised by the appellant are critically analysed by Mr Crimmins. 14On 17 January 2011, the DRP considered the matter and recommended the appellant's dismissal. 15On 19 January 2011, Mr Eid signed a letter confirming that dismissal - effective 19 January, 2011. (Ex 1, Annex JK) APPEAL PROCEEDINGS - TRANSPORT APPEAL BOARDS 16Mr John Emmery (the appellant) appealed his dismissal by lodging a Notice of Appeal - Transport Discipline. It was filed on 19 January 2011. He pleaded "Not Guilty". 17His appeal application was set down for conciliation before Connor C (the Board) on 10 February 2011. That conciliation was unsuccessful and the matter was programmed for a Hearing before myself, Macdonald C (the Board). 18The Hearing took place on 6 April 2011. 19RailCorp was represented by Ms M Robinson. 20The appellant was represented by Mr M Cartwright of the Rail, Tram & Bus Union ("the union"). 21RailCorp presented its case first in accordance with section 16(1) of the Transport Appeal Boards Act 1980 ("the TAB Act"). RailCorp's tendered material included : * Respondent's Written Case * Statement of Michael Crimmins * RailCorp Code of Conduct * Appellant's Secondary Employment Application submitted 18 October 2010 * Preliminary recommendation letter from Tony Eid, Deputy Chief Operating Officer and General Manager Operations, dated 22 December 2010 * Applicant's response via his solicitor dated 23 December 2010 * Appellant's letters to Jim Macklin dated 29 December 2010 * Statement of Jim Macklin dated 6 January 2011 * Memorandum of Michael Crimmins, Investigator, dated 17 January 2011 * Dismissal letter from Tony Eid, Deputy Chief Operating Officer and General Manager Operations dated 19 January 2011 * Statement of Lionel Smith dated 24 February 2011 * Statement of Judith Carll dated 1 March 2011 * Respondent's Reply to Appellant's case, dated 31 March 2011 22The appellant's case included: Statement of John Emmery dated 17 March 2011 23The appellant also gave oral evidence in the proceedings. CONSIDERATION The Respondent's Case 24The respondent's (RailCorp's) case against the appellant (John Emmery) is that he breached RailCorp's Code of Conduct by not declaring that he was engaged in a different kind of secondary employment in 2009. RailCorp became aware of that secondary employment through job advertisements placed by the appellant in a local newspaper (the Bordermail) in August and September, 2009. The type of work being advertised by the appellant was summarised by Michael Crimmins, Investigator, as "renovation work". This summary appeared in the letter of 15 September, 2010 of Crimmins to the appellant, being the formal advice that a disciplinary investigation was to be carried out into a possible breach of the Code of Conduct by the appellant. (Ex 1, Annex 6) That same letter used a different term to describe the alleged type of secondary employment: "construction and renovation". 25Whatever the correct description, RailCorp's case was that this type of work had not been advised to RailCorp by the appellant. 26The appellant had advised RailCorp in 2008, that he was engaged in secondary employment but that type of work was described as "business and expansion management planning". That type of work, said RailCorp, was different to that advertised in the local newspaper in August-September, 2009. 27RailCorp submitted that the failure by the appellant to disclose this different type of work, as advertised in 2009, was a breach of the Code of Conduct which states any secondary employment or voluntary work requires the prior approval of the relevant manager or supervisor and, if granted, that any change in an employee's job position, secondary employment or voluntary work also requires notification to the relevant manager. 28RailCorp stated that the failure to notify his manager or supervisor of this different type of work, also meant that RailCorp had not been given the opportunity to assess the fatigue factor associated with that different work and its possible effect on his job as an employee of RailCorp. 29The foregoing breaches of the Code of Conduct warranted his dismissal. 30RailCorp rejected the various defences put forward by the defendant. In particular, the appellant's claim that he had submitted a secondary employment application in 2006 was rejected - as was the appellant's view that the alleged 2006 secondary employment application was for a type of work that covered the type of work described in the 2009 advertisements (and therefore he did not have to submit a secondary employment application to cover the 2009 type of work). 31RailCorp also pointed out that this claim by the appellant to have submitted a 2006 secondary employment application was a new defence. It was raised for the first time by the appellant in the witness box and had not been raised by him or his solicitor beforehand. 32The appellant's defence/explanation by him or his solicitor prior to the hearing before the Board, as to RailCorp's allegation against the appellant, had varied and, it was submitted, was inconsistent and this reflected adversely on the appellant. 33Before dealing with the appellant's case, the Board will set out below the relevant agreed facts. Agreed Facts 34The appellant had two lots of service with RailCorp. The second lot was from 24 November, 2003 to his dismissal on 19 January, 2011. He was initially employed as a Passenger Attendant with CountryLink Passenger Services. He was promoted to the position of Senior Passenger Attendant on 27 May, 2007. 35RailCorp had two lots of policies on secondary employment during the appellant's engagement of 2003 to 2011. The first policy was in operation when the appellant began working for RailCorp in 2003 ("the 2002 Policy"). (Ex 1, Annex 27) That 2002 policy was replaced by a new policy effective 2007 ("the 2007 Policy). (Ex 1, Annex 21) 36The secondary employment policies have two terms that need clarification. One term is called "declaration" and the other "application". There is a difference in meaning between secondary employment declaration and secondary employment application . Simply put, an employee fills in a form declaring whether he/she undertakes or does not undertake secondary employment or voluntary work. If the employee declares that such work is undertaken, then the employee needs to make an application (in writing) to RailCorp to seek approval to undertake such secondary employment or voluntary work. 37The 2002 and 2007 Policies are slightly different in their operation as to secondary employment and voluntary work notification but the essential distinction between making a declaration and, if required, making a separate application remains. 38RailCorp's employment record for the appellant shows that the appellant submitted a Secondary Employment Declaration on 14 November, 2006. (Ex 1, Annex A, Investigation Report of Michael Crimmins, para 4.5) However, that 14 November, 2006 declaration has been misplaced or lost as it was unable to be located. (para 4.6) (That 2006 declaration became the subject of final submissions by the parties as to what weight should be given to that missing declaration). 39RailCorp's employment record for the appellant does not contain a copy of the appellant's 2007 declaration. RailCorp is unable to give any evidence about that document at all, including the format of that 2007 declaration and the format of the 2006 declaration. (Tr 31, line 42 to Tr 32, line 22) 40The appellant filled out a Secondary Employment Declaration on 21 July, 2008 advising that he undertakes secondary employment. (Ex 1, Annex 24) The appellant also filled out on the same date (21.07.08) a Secondary Employment Application. (Ex 1, Annex 28) He identified this work as: "Business plans & Expansion management Plans". 41The appellant filled out a Secondary Employment Declaration on 23 June, 2009 advising that he undertakes secondary employment. (Ex 1, Annex 25) 42The appellant filled out a Secondary Employment Declaration on 13 July, 2010 advising that he undertakes secondary employment. (Ex 1, Annex 26) The Appellant's Case 43The appellant put forward evidence, coupled with the union's final submissions, that he was not in breach of RailCorp's Code of Conduct and therefore his dismissal was not warranted. The thrust of his case was that there had been no breach because he had made not only a secondary employment declaration in 2006, but as well he had made a secondary employment application in 2006. The nature of the type of work set out in that 2006 application covered the type of secondary employment work he was performing in 2009. Accordingly, there was no requirement upon him, per the Code of Conduct, to declare that he was performing "new" secondary employment work because it was a type of work covered by the 2006 application. 44The appellant's case as to a declaration and application made in 2006 rested upon the following evidence: (a) his employment record showed that a declaration had been made in 2006; and (b) his oral evidence in the witness box that he had made an application in writing in 2006. (There was additional evidence in support of this oral evidence that the Board came across during its deliberation of the case after the Hearing.) RailCorp rejected this claim of the appellant. 45The evidence showed that the appellant had made a declaration in 2006 - and that is all that is known about that declaration. The declaration, itself, has been lost or misplaced by RailCorp. The appellant said that the declaration form would show that he had made a declaration that he was undertaking or proposing to undertake secondary employment. RailCorp of course, argued that in the absence of the declaration form, then no one could know whether the appellant had answered "yes" or "no" as to the question as to whether he undertook or proposed to undertake secondary employment work. 46In considering that question, the Board takes the view that RailCorp has the responsibility to maintain employment records for any employee. The failure by RailCorp to be able to produce the 2006 declaration does not allow RailCorp to submit that the Board is not able to consider and determine this question. The 2006 declaration is a document that could have assisted the appellant's case. If the 2006 declaration was answered by the appellant in the affirmative ("yes"), then that would be evidence to support his claim that he also made out an application in 2006 for secondary employment approval. It is not fair that the appellant can not advance his claim that he made such an application because of RailCorp losing or misplacing his 2006 declaration. Sheldon J of the Industrial Commission of New South Wales put the issue this way: "An employer who neglects to keep the statutory records, which in their probative effect, are as much a protection to himself as to the employee deserves little sympathy if he loses in the battle reduced to oath against oath": Ray v Radano (1967) AR 471 at 480. In the proceedings before the Board, there was only one oath to consider and that was of the appellant, being the only witness to take to the stand. Accordingly, the Board determines having regard to the reasons set out in this Decision and on the oath of the appellant, that the appellant did make out a 2006 declaration and that it said he was undertaking secondary employment. 47Having made the finding that the appellant made a declaration that he had undertaken or was going to undertake secondary employment, the Board now turns to the issue as to whether the appellant made the necessary secondary employment application. He gave evidence in the witness box that he had done so, in writing, but had not had a reply to that 2006 application. (Tr 26, line 38-50) That evidence was the subject of criticism by RailCorp. 48RailCorp's criticism of this 2006 application claim by the appellant was based on this claim being made for the first time by the appellant in the witness box. He had not made this claim anytime beforehand. It was new evidence and should not be accepted by the Board. 49The Board does not accept that the appellant was raising this defence for the first time in the witness box on 6 April, 2011. He had made this claim/defence beforehand, in writing, to Jim Macklan (his manager). The appellant wrote two letters to Mr Macklan on 29 December, 2010. (Ex 1, Annex F). The first letter (three pages long) is the relevant letter. On the second page (bottom paragraph), the appellant wrote, "In 2006 I applied for secondary employment and was granted . I have filled out the forms each year. I have never received copies of the documentation and to this date can only assume that CountryLink have these records..." (underling added by the Board) 50This quoted extract shows that the appellant was saying that he had made an application because he says it was granted . RailCorp does not grant declarations. An employee fills in the declaration to say that he/she is undertaking secondary employment or voluntary work. The next step is for he/she to make an application in writing. It is this application which is granted (or rejected). The appellant in December, 2010, said "was granted" in respect of his secondary employment for 2006. Therefore, he was talking about his 2006 application and not his 2006 declaration. Further, this reference to the 2006 application was raised by the appellant in December, 2010, being three months before he repeated this claim in the witness box. 51The Board then has rejected RailCorp's criticism that the appellant was raising his 2006 application defence for the first in April, 2010, in the witness box. 52The next criticism of RailCorp against the appellant's claim that he had made a 2006 application was based on the evidence of the appellant's manager (Mr Jim Macklan) who deposed in his witness statement as follows: "I have no recollection of Mr Emmery's 2006 Secondary Employment Declaration. At no time since submitting that declaration on the 14 November, 2006 has Mr Emmery approached me to review his secondary employment..." (Ex 1, Annex 11) Mr Macklan's witness statement is dated 27 September, 2010 and would not have been seen by the appellant until it (along with RailCorp's evidentiary material) was filed within the Board's precinct (the Office of The Industrial Registrar) on 3 March, 2011. 53Shortly put, the foregoing quoted extract was relied upon by RailCorp to assert that any declaration made by the appellant has to be forwarded to his manager or supervisor (per the Code of Conduct) for review. RailCorp, per Macklan asserted that no such approach had been made by the appellant in respect of a 2006 declaration and therefore no such declaration had been made in 2006 and by inference no application had been made either. 54Mr Macklan did not give evidence in the witness box, even though he filed a witness statement. This was because of the Board's practice direction that applies to the filing of witness statements. The practice direction requires, amongst other things, that a party (the appellant or the respondent) to court proceedings is required to give notice to the other party (appellant to respondent or respondent to appellant) that its witness(es) are required to attend court for cross-examination. In the proceedings before the Board, the appellant did not give notice that Mr Macklan was required to attend and be cross-examined as to the content of his witness statement. In not requiring Mr Macklan to attend and be cross-examined on the content of his witness statement, then the appellant is also saying that he accepts that the content of Mr Macklan's witness statement is correct. 55Having explained why Mr Macklan did not attend court, the Board now turns to the unchallenged content of Mr Macklan's witness statement and RailCorp's reliance upon it to say that no declaration and by inference no application had been made by the appellant. 56Mr Macklan deposed he had "no recollection" of the appellant's 2006 declaration. The Board understands this to mean that Macklan can not recollect seeing a 2006 declaration but this is not the same as saying that Macklan knows for certain that the appellant made no such 2006 declaration. That is, recollection is something less than certainty. In other words, the appellant could have submitted a 2006 declaration but Macklan can not say with certainty that the appellant did not. That lack of certainty could be due to the fact that the incident in question happened four years ago and that passage of time explains why Macklan can not be certain. Another explanation for lack of certainty is that Macklan processed a number of declarations in 2006 and that is why he can not recall with certainty the appellant's particular 2006 declaration. 57RailCorp also submitted that because Macklan had "no recollection" of the appellant's 2006 declaration then, by inference, the appellant had not made a 2006 application. This RailCorp submission is made, by inference, because Macklan himself makes no reference to a 2006 application. 58The Board has already recorded above that the appellant wrote to Macklan on 31 December, 2010 and, amongst other things, stated that he had applied for secondary employment and it was granted. That is, he was writing to Macklan to say he had made out a secondary employment declaration and secondary employment application. 59To the best of the Board's knowledge, Mr Macklan did not respond to the appellant's two letters of 31 December, 2010 and therefore did not respond to and dispute the appellant's claim of having made out a 2006 declaration and application. More pointedly, Macklan had made out his witness statement in September, 2010, in which he said he had no recollection of a secondary employment declaration in 2006 for the appellant. Three months later, the appellant wrote to Macklan and said he had made out a 2006 declaration and application. Macklan knew on reading that statement by the appellant that it conflicted with his "no recollection" statement of three months earlier but Macklan did not respond to and dispute this conflicting claim of the appellant. This failure to respond to and dispute a crucial issue in this case, carries weight in the Board's deliberation of the appellant's appeal against his dismissal. 60The appellant himself gave oral evidence that he had made a 2006 declaration and application and made the application to the Manager South in Sydney - but not to Mr Macklan. He said it was not made to Macklan because Macklan was not the Manager South, but the Passenger Service Supervisor in 2006. (Tr 26, line 38 to 46) Macklan, as already stated above, does not refer to a 2006 application in his witness statement. RailCorp made a submission that the appellant's 2006 declaration, and by inference 2006 application would have been made to Macklan because he was the manager of the appellant at the time. Mr Macklan's witness statement of 22 September, 2010 does not say that he was the Manager South in 2006. He deposed that he "supervised" the appellant four years ago (2006) but does not say in his witness statement what his occupational title was then. 61In any event, RailCorp's inferential reliance upon Macklan that he had not seen a 2006 application from the appellant, does not assist RailCorp to submit that therefore no such application was made. This is because of the requirement for notifying a person of authority that an employee is seeking approval for engaging in secondary employment. The requirement is set out in the Code of Conduct. (Ex 1, Annex B) At clause 12 of the Code of Conduct, it states that an application for secondary employment must be in writing. It does not say to whom the application is to be made. It says relevantly, that "you must have the written approval of your manager or supervisor". By inference, the application can be made to your manager or supervisor, but not necessarily. Accordingly, the appellant was not in breach of the Code of Conduct by not forwarding a 2006 application to Macklan. This would then be a possible explanation as to why Macklan could not give any evidence about not sighting a 2006 application. 62In summary of the appellant's case so far, there is no dispute between the parties that the appellant's employment record shows an entry for a 2006 declaration. Given that RailCorp has misplaced or lost that 2006 declaration, the Board held that RailCorp could not submit that no conclusion could be made about whether the appellant ticked a "yes" or "no" box on that declaration form as to whether he intended to engage in secondary employment. The Board held that by not maintaining control over that 2006 declaration, RailCorp denied the appellant from proving his claim that he had made a 2006 declaration, and by inference a 2006 application, through the existence of that 2006 declaration. Accordingly, the Board held that the appellant had made out a 2006 declaration for secondary employment. 63In accepting that a 2006 declaration had been made out, the Board holds that it is reasonable to infer that a 2006 application had been also made by the appellant - given that a two stage step process is involved: first, the declaration stating "yes" and then second, the follow up application. As well, the appellant made out a 2008 declaration and followed that up with a 2008 application and a 2009 and 2010 declaration. He has an undisputed history of secondary employment activity in 2008, 2009 and 2010 and that history assists the Board in finding that a 2006 declaration would have been followed up with a 2006 application. Further to that, the Investigation Report of Mr Crimmins gave relevant background material that the appellant held a current contractor licence as a builder. The appellant is registered as carrying on a business under the name of EMMERY CONSTECH. The nature of that business is registered as being construction and technology. That business name was registered in 1996 which is ten years before his evidence as to his 2006 application to carry out secondary employment work. (Ex 1, Annex A) 64The Board rejected RailCorp's submission that a 2006 declaration and 2006 application were not made based on the uncontested witness statement of Mr Macklan - for reasons set out above. In particular the Board rejected RailCorp's submission that the appellant had first made the claim of making out a 2006 application in the witness box. The evidence showed that he made this claim earlier on in correspondence to Macklan and further Macklan had not responded to and disputed this claim. 65Having found that a 2006 declaration and a 2006 application had been made by the appellant, the Board turns to the next issue about that 2006 declaration and application. That issue is the defence by the appellant that he had not breached the 2007 Policy as the 2009 secondary employment job advertisements in the Bordermail was not for "new" secondary employment activity but for work covered by his 2006 declaration and 2006 application. 66The appellant was dismissed because RailCorp held that the 2009 job advertisements was for secondary work not declared by the appellant. This 2009 secondary work was described as tiling and bathroom renovation work in the job advertisements. RailCorp said the appellant had never made a secondary employment declaration for that type of work. The appellant's 2008 application described a different type of secondary work said RailCorp. It said: "business plans and expansion management plans". As this 2008 description of his secondary employment was not the same type of work as advertised in the Bordermail, then the appellant had breached the 2007 Policy in failing to declare that new type of secondary work. For breaching the 2007 Policy, the appellant was dismissed. 67The appellant's case is that he advised RailCorp in 2006 that his secondary employment was for "minor building and renovation work" and that continued in 2007. He was given the opportunity to do extra secondary employment work in 2008 ("business plans and expansion management plans"). He made such a declaration and application in 2008. (The evidence is not disputed that he made a 2008 declaration and application). He said he notified RailCorp of this change in secondary employment work because that was required of him. He added that he had no idea that by making that 2008 declaration and application, "that it would cancel" the 2006 declaration and application. It was his "belief" that the 2006 declaration and application was still on foot. (Tr 10, line 27 to Tr 11, line 6) Thus, the appellant's case was that the 2006 declaration and application for "minor building and renovation work" was still on foot in 2009 and covered the type of work he advertised in the Bordermail: "renovation work" (as described by Crimmins, Investigator in letter of 15 September, 2010) 68The union added to the foregoing evidence in opening and final submissions that the 2002 and 2007 Policy did not state that a revised declaration or application as to a change in the type of secondary employment being carried out by a RailCorp employee, cancelled any prior declaration or application made by the employee. RailCorp did not dispute this reading of the 2002 and 2007 Policies by the union. 69Given that the Board has held that the appellant made a 2006 declaration, followed up with a 2006 application, and that neither the 2002 and 2007 Policies annul any prior declaration/application made by an employee about the nature of their secondary employment, then the next issue for consideration is the appellant's claim that the nature of the work identified in his 2006 application covered the type of work for which he advertised in the Bordermail in 2009. 70The appellant gave evidence in the witness box that the type of work for which he made a 2006 application was, "minor building and renovation work". The type of work in 2009 for which it was said he made no declaration was variously described. As already stated above (para 24), Crimmins described the work as "renovation work" and "construction and renovation". In final submissions, the 2009 work was described as "tiling and building and renovation work" (Tr 34, line 1-2) Whatever the description, there was no questioning of the appellant that the 2009 description of his work did not fall within his oral evidence as to the 2006 description of his work. That he was not so questioned is understandable, given that RailCorp's case against the appellant was focussed between 2008 and afterwards. The Board finds that there is no evidence before it to challenge the appellant's claim that the 2009 type of work was covered by a 2006 type of work application. Other Issues 71RailCorp raised other issues against the appellant and the Board will consider those below. 72RailCorp made a submission going to the credit of the appellant based on explanations given by him or through his solicitor, during the investigation process. For example: the appellant made out a 2010 declaration as to the type of work he was undertaking. He did this in response to the investigation and, as such, he "wanted to put the record straight.... (and described his secondary employment work as) "minor renovation and building work". (Tr 24, line 39 to 25, line 4) 73One line of submission made by RailCorp was that his secondary employment work in 2010 was not "minor" and therefore the appellant was giving inconsistent evidence and he was therefore unreliable. This submission turned on a home building contract he had made with a client for the sum of $120,000. (Ex 1, Annex L) RailCorp submitted that a $120,000 building contract could not be classified as "minor". 74The appellant's witness statement advised that the "value of work was $75,000 for the construction and $45,000 for the renovations to the existing building. I had engaged a labourer to assist me with the renovations and I intended to use sub-contractors for the construction". There was then a dispute between the client and the appellant about two months into the contract and it was mutually terminated. (Ex 3) 75Based on the foregoing, the Board can not find that the work was not "minor". There is, of course, the problem of definition - that is, what is "minor" work and what range of money falls within that definition of "minor". In any event, the client (Lionel Smith) filed a witness statement and said that he gave $12,000 to the appellant before terminating the contract (mutually) (Ex 1, Annex 2) Is $12,000 within the definition of "minor"? This assumes, of course, that the $12,000 went to the appellant but the evidence suggests otherwise. Smith deposed that the appellant was putting in "short hours" at Smith's house but there was a labourer (appears to have been engaged by the appellant) working at the house for seven and a half weeks. Seems then that the labourer was working full time but the appellant was light on and presumably the labourer was paid out of the $12,000. The Board finds that RailCorp has not produced the evidence to show that the appellant was not engaged in "minor" work (whatever that means). Therefore, RailCorp has not shown that the "minor" work declaration by the appellant in 2010 was dishonest. 76Another line of submission going to the appellant's credit concerned the issue of his workers compensation payments and his job advertisements in 2009. Thus, RailCorp submitted, "He was actively seeking this form of secondary employment (in 2009) during a time that he was seeking workers compensation payments from RailCorp. While this is nothing to do with the allegation itself, it is further evidence of his lack of candour and honesty with respect to his secondary employment as a whole". (Tr 39, line 37 to 46) 77In of itself, the Board does not understand the tie-up between on the one hand, job advertisements and workers compensation benefits and on the other hand, lack of candour and honesty. 78The appellant was cross-examined on this issue. He had a work related injury in November, 2009 that resulted in some incapacity for work. He received workers compensation payments for periods of incapacity from November, 2009 to June, 2010. The foregoing evidence gained from cross-examination led to a question that only went to that the appellant was advertising for tiling and building and construction work during that period of time (November, 2009 to June, 2010) when he was receiving benefits for "periods of incapacity and for partial capacity" (Tr 25, line 44 to Tr 26, line 21) It was not put to the appellant that he was actually carrying out tiling and building and construction work whilst off work from RailCorp and receiving workers compensation benefits and there was no evidence that he was. 79For the record, the appellant responded to the advertising question as follows - he placed an advertisement and the day after it appeared in the Bordermail, he was incapacitated. The last three weeks prior to his being fully fit and no longer on compensation, he placed an advertisement in the paper knowing that it would be several weeks before any work would be able to be done and by then, he would be fully fit for duty. 80The Board does not understand how this issue can constitute, as RailCorp claims, a lack of candour and honesty by the appellant. 81RailCorp submitted that there was secondary employment work that had not been declared by the appellant and because of that failure to declare, then RailCorp had not been able to carry out the obligatory fatigue risk management assessment - that is, it could not ascertain the impact of this secondary employment on the appellant's job with RailCorp. 82The appellant gave evidence that this secondary employment was a one off thing (Hume Event Hire) in which he spent two hours assisting a friend to erect a small tent. He had been paid for that task and declared it on his tax return. (Tr 25, line 14 to 42) 83The union submitted that this type of work (erecting a tent) came under the appellant's prior declaration that included "construction". The appellant, under cross-examination, said that his 2006 application was for "building construction work" (Tr 15, line 23 to 27) The type of work he said was covered by this 2006 application was not the focus of cross-examination but rather whether he had made a 2006 declaration and 2006 application. It is trite to say that builders erect scaffolding or protective barriers (such as tents) around construction work for say, safety reasons. The Board accepts the union's submission that erecting a tent comes under "construction" and that that term is one associated with a person (like the appellant) who is a licensed builder. Accordingly, there has not been a failure by the appellant to declare this two hour secondary employment job. 84There is something else to be said about this issue as it relates to RailCorp's claim about a lack of candour and honesty in the appellant. How is that so, when RailCorp brings forth evidence (the appellant's tax returns) that shows that the appellant declared to the Australian Taxation Office that he earned money for a mere two hour job? 85The Board has already dealt with RailCorp's claim that the appellant had raised for the first time, in the witness box, the defence that he had made a 2006 declaration and application. The Board found this not to be so. He had raised this defence in December, 2010 correspondence to Macklan. 86There is a curious matter that the Board raises about that advice by the appellant to Macklan. Subsequently Macklan made out a further statement on 6 January, 2011. In that statement he referred to the appellant's correspondence of 29 December, 2010 and that that correspondence contained a number of issues and Macklan responds to some of those issues. He did not record in his witness statement that one of the issues raised by the appellant was that he had made a 2006 declaration and by inference a 2006 application. The existence or otherwise of a 2006 declaration and 2006 application was a critical issue in these proceedings. CONCLUSION 87The dismissal letter of 19 January, 2011 advised the appellant that the allegation against him had been substantiated following the Disciplinary Investigation. The allegation was: "That you failed to declare your secondary employment". The allegation related to the appellant's placement of job advertisements in the Bordermail on 8 August and 5 September, 2009, in which the appellant actively sought home renovation work. His Personnel - Employment Conditions File failed to show a Secondary Employment by the appellant in regard to the nature of work of construction and renovation. The appellant was paid five weeks salary in lieu of notice. 88RailCorp's case against the appellant is founded on there being no secondary employment declaration by the appellant on file which shows that he informed RailCorp that he was carrying out that type of secondary employment work for which he advertised. 89Having considered all of the evidence and submissions of the parties, the Board has concluded that the appellant made such a declaration and application, that encompasses the work as advertised, and made that declaration and application in 2006. 90The starting point for that conclusion is RailCorp's evidence that there was a notation on the appellant's employment file about a 2006 declaration. The 2006 declaration had been lost or misplaced. The Board rejected RailCorp's submission that without the actual 2006 declaration, then the Board could not draw a conclusion as to whether the appellant had answered "YES" or "NO" as to whether he undertook secondary employment. If the Board accepted that line of reasoning, then any employer could intentionally or otherwise misplace employees records in order to avoid claims by employees - especially in the area of underpayment claims. The Board referred as well to the view of Sheldon J in Ray v Radano as to the failure of an employer to keep statutory records and the consequence that a court could still adjudicate a dispute between employer and employee (by their oath in the witness box) - given the absence of documentary evidence. 91In this case, there was missing documentation through no fault of the appellant. RailCorp could not be advantaged in its case against the appellant by inadvertently misplacing or losing crucial evidence and then submitting that the appellant could not prove his case. 92Due to RailCorp not maintaining records, within its area of responsibility, then the Board considered the oath of the appellant. Was he a witness of truth? The Board observed him in the witness box, under cross-examination in particular, and found him to be a witness of truth. 93On one occasion he gave, seemingly unbeknown to himself, evidence against himself. On the crucial issue of the 2006 application, he said he had submitted this application but had not received confirmation (and hence approval) of his 2006 application. The relevant 2002 Policy stated that "An employee must obtain prior approval before engaging in secondary employment". He was then openly volunteering evidence against himself in that he was saying he had not received confirmation of approval! This response and his demeanour was that of a witness of truth. It is also important to record that he was not questioned in the witness box by RailCorp about this lack of confirmation of approval. The Board for its part, takes the view that the confirmation of approval of his 2006 application was perhaps misplaced or lost like his 2006 and 2007 declarations. 94Another piece of evidence going to the appellant's credit as a witness, came from RailCorp's access to the appellant's annual tax returns. One of returns was sought to be used against him as proof that he had not declared secondary employment when being paid for erecting a tent over a two (2) hour period. The Board rejected RailCorp's claim. Importantly, this same evidence showed that he had declared to the Australian Taxation Office that he had earned remuneration from his secondary employment for a mere two (2) hours of work. The appellant is honest. 95The Board rejects RailCorp's submissions that sought to attack the appellant's honesty. The Board makes a positive finding that John Emmery, the appellant, was a witness of truth. 96The Board has considered all of the evidence and submissions of the parties in forming its Decision and Orders set out herein. 97The Board found that the 2006 application was for the kind of work that encompassed the type of work advertised in the Bordermail and therefore the finding by RailCorp that the appellant had not made out a declaration for that type of work as advertised, was incorrect. It therefore follows, that the ground relied upon to dismiss the appellant was invalid. 98The Board accordingly will issue the appropriate orders reinstating John Emmery, the appellant, into his form position, with no break in his continuity of service and the appropriate back pay to the date of his dismissal (less the five weeks notice in lieu of notice payment). ORDERS In relation to the appeal (TAB 18 of 2011), the Board makes the following Orders: (1) The appeal is allowed. (2) The decision of RailCorp to dismiss John Emmery is set aside and he is reinstated to his former position of Senior Passenger Attendant, effective 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 - less the five (5) weeks paid in lieu of notice. (4) The continuity of John Emmery's employment with RailCorp is taken not to have broken by the decision of RailCorp to dismiss John Emmery. A Macdonald 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: 26 July 2011