Ryan v RailCorp [2011] NSWTAB 10

Transport Appeal Boards New South Wales Medium Neutral Citation: Ryan v RailCorp [2011] NSWTAB 10 Hearing dates: 2, 3 and 4 May 2011 Decision date: 30 June 2011 Before: Oakman AC (Board) Decision: Appeal allowed, see orders at paragraph 98 Catchwords: PUBLIC SERVICE - discipline and misconduct - rail employees - failure to provide accurate time sheets - incorrect attestation - dismissed by employer - appeal to Transport Appeal Board - Held - appeal allowed - only part of misconduct upheld - dismissal set aside - employee suspended without pay for one week Legislation Cited: Transport Administration (Staff) Regulation 2005 Transport Appeal Boards Act 1980 Cases Cited: Briginshaw v Briginshaw and Anor (1938) 60 CLR 336 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Category: Principal judgment Parties: David Ryan (Appellant) Rail Corporation of NSW (Respondent) Representation: Mr B Edghill, RTBU (Appellant) Ms M Robinson, RailCorp (Respondent) File Number(s): TAB 21 of 2011

DECISION

Introduction 1Mr Ryan joined RailCorp on 8 September 2003 as a Passenger Attendant ("PA") at Albury for CountryLink. On 5 April 2004 he was promoted to Passenger Services Supervisor ("PSS") at Dubbo and then voluntarily regressed to the position of PA at Albury on 17 April 2005. On 3 July 2006 he was promoted to the position of PSS at Albury. During 2009 Mr Ryan was found guilty by RailCorp of misconduct and, following an appeal to the Board against a decision that he be dismissed, he was reinstated, suspended without pay for three months from 15 December 2009 and regressed to the position of Senior Passenger Attendant ("SPA"). 2By a letter dated 4 August 2010 Mr Ryan was advised by RailCorp that a disciplinary investigation was to be conducted into the possibility that he may have committed breaches of RailCorp's Code of Conduct ("the Code") and the particulars of the alleged breach were set out in that letter. Mr Crimmins, RailCorp Investigator, carried out an investigation and prepared a report, dated 2 December 2010, substantiating the alleged misconduct. The investigation report was sent to RailCorp's Discipline Review Panel ("DRP"). The DRP considered the matter on 13 December 2010 and made a preliminary recommendation that Mr Ryan be dismissed. 3By letter dated 17 December 2010 Mr Eid, General Manager, Operations, Service Delivery, advised Mr Ryan that the investigation was finalised, the allegations had been substantiated and the preliminary view was that he should be dismissed. He was given 14 days to make any submissions in regard to the proposed outcome before a final determination was made. The particulars of those breaches were: "Allegation 1 It is alleged that you engaged in unacceptable behaviour which amounts to a breach of the Code of Conduct by submitting a timesheet that did not show accurate records of work performed. The particulars of this allegation are: 1. On or about 28 June 2010, you submitted a 'Train Crewing Timesheet' for the fortnight ending 3 July 2010. 2. In submitting that timesheet, you claimed wages for hours that you did not work, and allowances to which you were not entitled, for the dates 22, 23 and 24 June 2010. Allegation 2 It is alleged that you engaged in unacceptable behaviour which amounts to a breach of the Code of Conduct by not complying with Information Bulletin 053/2009 relating to signing on and off duty. The particulars of this allegation are: 1. On or about 28 June 2010, you submitted a 'Train Crewing Timesheet' for the fortnight ending 3 July 2010. 2. For the date of 22 June 2010, you endorsed the timesheet with the words 'No AO at S/O signed myself'. 3. On the 22 June 2010, you attested yourself as being on duty but signing your timesheet as the 'Attesting Officer'. Allegation 3 It is alleged that you engaged in unacceptable behaviour which amounts to a breach of the Code of Conduct by submitting a timesheet that did not show accurate records of work performed. The particulars of this allegation are: 1. On or about 2 August 2010, you submitted a 'Train Crewing Timesheet' for the fortnight ending [31] July 2010. 2. In submitting that timesheet, you claimed wages for hours that you did not work, for the dates of 27, 28 and 29 July 2010." 4Mr Ryan responded by an email on 20 December 2010. The DRP considered the matter again on 17 January 2011 and made a final recommendation that Mr Ryan be dismissed. By letter dated 18 January 2011 Mr Eid advised Mr Ryan that he was dismissed, effective from 20 January 2011, from his employment with RailCorp. 5On 25 January 2011 Mr Ryan lodged a Notice of Appeal with the Board. The Board, differently constituted, attempted to conciliate the appeal but the parties did not reach a settlement. The appeal was heard by the Board on 2, 3 and 4 May 2011 in Albury. The Board reserved its decision.