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. Issue(s) 6Mr Ryan has challenged the misconduct findings and the decision to dismiss him from his employment with RailCorp. Respondent's and Appellant's Cases 7In summary, RailCorp submitted that Mr Ryan had received training on the Code on 3 November 2006 and was briefed again on the Code at a meeting on 17 March 2010; the relevant timesheets he submitted did not accurately record the hours he worked; he had attested himself contrary to Information Bulletin 053/2009; RailCorp did not characterise his actions as fraud or dishonesty but did say they were deliberate; and the evidence before the Board supported a finding that he had misconducted himself as alleged. RailCorp submitted the appropriate penalty for the misconduct was dismissal because: of the nature of the breaches; of the Board's findings on the last occasion that he had not observed or followed RailCorp's instructions, to the extent RailCorp was entitled to expect from a person occupying a supervisory position, particularly in relation to completing time records; he occupied a supervisory position; despite telling RailCorp in relation to the previous disciplinary matters that he attributed some of his problems to his position with the RTBU and had resigned that position, he was again holding a position with the RTBU at the time of the latest events; and in relation to the previous disciplinary matters, he had told RailCorp 'I give you my word ... that this will never happen again'. 8RailCorp also submitted that Mr Ryan's evidence that he was being diligent by putting everything he was told on his timesheet was not acceptable for fulfilling his obligations as an employee to accurately record the hours he had worked. He was deliberately putting more on his time sheets than he was entitled to; RailCorp did not say he was expecting to be paid more than he was entitled to; indeed, his notations on the timesheets that he be notified if anything was wrong suggest that he expected to be contacted about what he was claiming; and this was a breach of the Code because he was failing to take responsibility for recording accurate information on his time sheets and expecting the time keeper to sort out what he should be paid. He did this twice, despite clear instructions to claim only what he worked, first by Mr Wilmot prior to submitting the time sheet for the fortnight ending 3 July 2010 and by Mr Macklan prior to submitting the time sheet for the fortnight ending 31 July 2010. 9In so far as the appellant's position was that his errors on the time sheets were honest and miniscule discrepancies, RailCorp rejected this as missing the crux of the disciplinary issue. Mr Ryan, after being disciplined for inappropriately attending to his time sheet responsibilities, again failed to properly complete his time sheets. His actions reveal a pattern of behaviour and an attitude that is not compatible with the behaviours required of a RailCorp employee in a supervisory position and as a secretary of the RTBU who holds himself out to advise and influence others. It is not about honesty or fraud, it is about attitude and compliance with RailCorp's reasonable expectations that staff properly discharge their every day obligation to accurately complete their time sheets. Mr Ryan had again failed in that obligation. RailCorp also refuted the suggestion that Mr Ryan was the target of a campaign by management to remove him from the workplace. The written evidence clearly establishes the investigation was triggered by a query from the Payroll section as to what he was claiming on his time sheet. 10RailCorp also confirmed at the start of the hearing that although it had said in the written material that Mr Ryan was in error to have claimed 8 hours and 10 minutes for sick leave for 28 July 2010 in his entry in the time sheet for the fortnight ending 31 July 2010, it no longer pressed that matter. 11RailCorp presented its case first in accordance with section 16(1) of the Transport Appeal Boards Act 1980 ("the TAB Act"). 12In summary, the RTBU submitted on behalf of Mr Ryan that the evidence did not substantiate any of the allegations against Mr Ryan. He had shown his actual hours worked in relation to the relevant entires detailed in the particulars of Allegations 1 and 3. Allegation 2 could not be sustained because Information Bulletin 053/2009 specified the requirements for attesting RailCorp employees about to undertake rail safety work and Mr Ryan was not involved in rail safety work when he 'self attested'. 13The RTBU submitted that the findings of the Board in the previous disciplinary matter were, in effect, that Mr Ryan had filled the time sheets out honestly, he had done so in a manner consistent with what other employees did and he had made mistakes. The Board directed that he receive more training. Mr Olsen and Mr Macklan were responsible for providing that training and this amounted to Mr Olsen issuing a letter which noted training was a local responsibility and Mr Macklan issuing more bulletins. It was submitted that Mr Ryan complied with any directions he was given by Mr Macklan or others in relation to how he was to fill out the relevant time sheets. . 14The RTBU said RailCorp accused Mr Ryan of having an attitude problem by putting notations on his time sheets. However, he was making notations to clarifying issues with the timesheets - his entitlement (or not) to allowances, inviting contact if clarification was needed and to indicate the time sheet for the fortnight ending 31 July 2010 was a replacement as the original was lost (and later found and also submitted). Mr Ryan's evidence was he filled out his time sheets with as much information as possible, including comments to show the shift he was rostered to work and the work he actually did. He did so in an attempt to give information to allow RailCorp to determine what he was entitled to be paid and not, as RailCorp seemed to suggest, to frustrate Payroll. His understanding of the previous disciplinary action was that it was basically about him not putting enough information in his time sheets and now he was being disciplined for putting in too much information. It was submitted that Mr Ryan's alleged time sheet problems had to be considered in light of his supervisor's obligations to ensure they were correct, the different views of the various RailCorp witnesses on what was the correct thing to do in particular circumstances and the time sheets of Mr Olejniczak and Ms Welsh. 15If, despite the RTBU's submissions, the Board found the Allegations substantiated then the seriousness of the misconduct did not justify dismissal. In essence, the allegations involved five dates on two time sheets. Mr Ryan was not alleged to have acted dishonestly or fraudulently. He was alleged to have not filled out his time sheets well enough - he signed a box he shouldn't have and he wrote master roster times and actual times worked on occasions when it was not clear which was the proper entitlement. RailCorp had all the information they needed to determine his entitlements; when RailCorp wanted clarification they asked for it and got it; and no incorrect payments were ever made by RailCorp. Evidence 16RailCorp's tendered material consists of its written case; a statement dated 10 March 2011 from Mr Michael Crimmins, the investigator; a copy of his investigation report and its attachments; a copy of the Code; Mr Eid's letter dated 17 December 2010; Mr Ryan's email response of 20 December 2010; a memorandum from Mr Crimmins dated 10 January 2011; and Mr Eid's letter to Mr Ryan dated 18 January 2011 dismissing him from his employment (exhibit 1). 17The investigation report includes copies of the time sheets submitted by Mr Ryan to RailCorp; Mr Ryan's Ellipse report; various emails; requests and approvals for Mr Ryan to attend TUTA training; letter dated 22 March 2010 from Mr Gary Olsen detailing a session with Mr Ryan on 17 March 2010 for counselling on the Code; letters to and from Mr Ryan and / or the RTBU in relation to the course and conduct of the investigation; copies of letters to / from Mr Ryan in relation to the earlier disciplinary matter; a copy of the Board's decision of 1 April 2010 in relation to the earlier disciplinary matter; and extracts of the Special Leave Policy and Local Representative Training Leave. It also included statements by: Mr James Macklan, Operations Team Leader, dated 21 September 2010; Mr Greg McLeod, General Manager, Customer Service, dated 23 September 2010; Mr Dave Wilmot, Crew Rostering Manager, two statements dated 23 September 2010 and one dated 26 November 2010; Mr Brett Carter, Senior Payroll Officer, dated 27 September 2010 and 25 November 2010; Mr Greg MacDonald, Senior Employee Relations Officer, dated 6 October 2010; Mr Phil Clancy, Deputy Regional Crewing Manager, dated 21 October 2010; and Mr Steve Lance, Manager Support Services, dated 19 November 2010. 18RailCorp also filed a reply to the case on behalf of Mr Ryan consisting of its written reply; a copy of RailCorp's Leave Procedure; a statement from Mr Wilmot dated 11 April 2011, with attachments; and copies of Information Bulletins 068/2007, 0023/2008 and 035/2009 (exhibit 2). 19The RTBU required Mr Crimmins, Mr Olsen, Mr Macklan, Mr McLeod, Mr Wilmot, Mr Carter, Mr Clancy and Mr Lance for cross examination. Mr Crimmins, Mr Macklan, Mr Carter, Mr Clancy and Mr Lance were made available for cross examination. Mr Olsen, Mr Wilmot and Mr McLeod were not available to be cross examined. 20The RTBU tendered a statement from Mr Olejniczak, a PSS based in Albury, dated 5 April 2011, with a time sheet attached (exhibit 3); a statement from Mr Ryan dated 4 April 2011, with a time sheet from Ms Stacey Welsh attached (exhibit 4); and its written case together with a number of references and letters of support from various dates (exhibit 5). RailCorp required Mr Ryan, Mr Olejniczak and Ms Welsh for cross examination. Mr Ryan and Mr Olejniczak (by telephone) were made available for cross examination. Ms Welsh was not available to be cross examined. 21There is a large amount of evidence before the Board consisting of the numerous documents contained in exhibits 1 to 5 and the testimony of Mr Lance, Mr Carter, Mr Macklan, Mr Crimmins, Mr Olejniczak, Mr Clancy and Mr Ryan given over the course of two hearing days. That evidence forms part of the record of these proceedings and no purpose would be served by detailing in this decision every document or statement contained in that evidence. 22The critical issues for the Board to determine in this matter are, in essence, what Mr Ryan should or should not have put in his time sheets (the substance of Allegations 1 and 3) and whether he was incorrect in attesting and signing himself on for 22 June 2010 (the substance of Allegation 2). It is the evidence in relation to these issues that the Board will set out in more detail. 23Evidence of Mr Lance . Mr Steve Lance is the Manager, Payroll Service Delivery. He provided a statement dated 19 November 2010 (exhibit 1, Tab 2A20) and gave evidence on 2 May 2011. 24He referred Mr Ryan's time sheet for the fortnight ending 31 July 2010 to the Investigations Unit, after Mr Carter brought it to his attention because it was unclear what claims were being made. He said it was usual for a Payroll officer to clarify issues with time sheets with the employee or their local manager. He said he was aware of Mr Ryan's previous disciplinary matter when he referred it to the Investigations Unit. 25Evidence of Mr Carter . Mr Brett Carter is the Senior Payroll Officer. He provided statements dated 27 September 2010 and 25 November 2010 (exhibit 1, Tabs 2A17 and 2A21) and gave evidence on 2 May 2011. 26He said the usual Payroll practice, when a time sheet is received and an employee has made a claim to which they are not entitled, is to decline payment and not seek clarification. Payroll received Mr Ryan's time sheet for the week ending 26 June 2010, signed by Mr Ryan and certified on 28 June 2010 by Mr Wilmot, sometime between 28 June 2010 and 1 July 2010. Payroll could not work out what was being claimed in relation to 22, 23 and 24 June 2010. The time sheet was also notated 'If any of this is wrong then notify me as per the GMs note, I should be notified'. 27He received the time sheet and prepared an email to Mr Thompson, Payroll Manager, setting out the problems with Mr Ryan's entries (exhibit 1, Tab 2A3), asking for a new time sheet showing only actual working time, travelling time and details of any expenses before payment would be processed. An amended time sheet was received from Mr Ryan around 4 July 2010. 28During cross examination he was taken through the various entries in Mr Ryan's originally submitted time sheet for the fortnight ending 3 July 2010. He said: [transcript 2 May 2011, from page 23, line 5] 'Q. I'd like to take you now to the timesheets themselves. I'll try to do this in a way that's easy, because I know there's a lot of flicking back between pages. So the timesheet which is behind tab 2 of the document, can you just turn to that, please? A. Yes. Q. Now, this timesheet, as we've discussed or as you discussed during your examination from Ms Robinson, there are issues with 22, 23 and 24 June, is that correct? A. Correct, yes. Q. So I just want to go through exactly what's in the timesheet myself, just to make sure we understand what it is that's in there. So 22 June, for example, there is at the top, time on duty, it looks like 23.00 is written, time off duty 07.10. Then if you move on, the file then states, "master roster", there's a due arrival time of 6.55, hours of duty 8.10, and then written next to it, "master roster". So you interpret that to mean that that was the master roster for Mr Ryan on that day? A. Well, you'd assume that it would be, but by him signing himself on duty, time on duty, you've also got to question did he actually do that master roster. Q. But the fact that he's written twice along that line the words, "master roster", does that suggest to you that that's what his master roster was for that day, whether he worked it or not? A. Yes. Q. Okay. Now, if we stay in that same box on the 22nd, we can see different times written along here. So underneath the time on duty is 11.37, time off duty 20.45. He's written - it looks like "PAX SYD", due arrival time, 17.55, actual arrival time, 20.35 and 9.08. So what do you interpret that to mean? A. Well, it's termination that PAX, that means he'd be a passenger on the train, so he travelled on the train from 11.37 and finished up at 20.45 for nine hours and eight. Q. And then next to that it says that he travelled as a passenger on that train, the train was ST24 and that was 40 minutes late. Do you agree with that? A. Yes. Q. And that was supplied by the RTBU? A. That is correct. And he's got a tick in the expenses. Q. So do you have any reason to believe that what is recorded here, that is, that Mr Ryan travelled on train ST24 and that train was 40 minutes late and that he had accommodation provided by the RTBU, do you have any reason to believe then that that is false? A. No. Q. So from this entry, you'd agree that you can very clearly identify what the master roster is that Mr Ryan is saying he was entitled to that day, what his master roster was and also what he actually did? A. After going through it and having knowledge of that, yes, you could assume that. Q. Okay. Let's go over now to the next day, the 23rd. And again it may seem petty to go through the numbers, but this is what Mr Ryan has been charged with, so please bear with me. A. All right. Q. Now, again it is quite messy. At the top line it says ST21 and there is a time on duty which is difficult to decipher. It may be 28.50, but I'm happy for you to dispute that if you like. The time off duty of 04.27 and then master roster is written in the trains worked column and then master roster written again in the remarks column. So again on that basis, would you say that there's reason to assume that eight hours and 37 minutes that he's claimed there is what was original contained in Mr Ryan's master roster for that day? A. Yes, that could be assumed, that. I guess it could also be assumed that he worked it as well by actually signing himself time on duty and time off duty. Q. Okay. So let's continue down the page. Now, still on the 23rd, he writes in the time on duty, 09.00, writes "no available AO", time of duty of 16.30. Again he writes "no available AO". Then in the train to work column, he writes "RTBU training", and then next to that in the remarks column, he writes, "RTBU course training, bed supplied by RTBU". Is that - do you agree with that? A. Yes, that's what he's written there, yes. Q. So would it be safe to say then that it actually appears on that date that Mr Ryan was at an RTBU training course from 09.00 to 16.30? A. That's one of the entries there, yes, I'd say yes, and he could be there. Q. Okay. So he's written a master roster time and then he's written another time and this time clearly shows that he was at an RTBU training course. Do you agree with that? A. Yes, they're both there, yes. Q. Okay. But what I'm putting to you is that the information that is shown here actually makes it possible for you to determine that Mr Ryan was at an RTBU training course on 23 June that went from 09.00 to 16.30? A. Yes. Q. Thank you. Now to the 24th. Here Mr Ryan writes up the top, "RDO" and then writes next to it, "master roster". So is it safe to assume that his master roster contained an RDO on 24 June? A. Of what he's written there, yes. Q. Okay. You don't have any reason - do you have any reason to believe that that wasn't his master roster? A. No. Q. Okay. Thank you. Now, then he's written, "RTBU 0[9].00" in a sign on time, time on duty. Time off duty, 16.30, and again written in the train to work columns, "RTBU training", and then in the remarks column, he's again written, "RTBU training". So is it safe to assume that on that day, you could decipher or determine that Mr Ryan attended an RTBU training course from 09.00 to 16.30? A. Yes. Q. Thank you. So in relation to this timesheet that we've just gone through, the information that Mr Ryan has recorded in the timesheet actually gives a lot of information about where he was and what he was doing, doesn't it? A. Yes, it does give a bit of information there, yes. Q. And from that information, we were able to go through that timesheet in a relatively short period of time and determine, on the basis of what Mr Ryan had written, where he was and what he was doing on each day. Is that correct? A. You can get there in the end, yes.' 29He said he had no issues with the entries on the amended time sheet for the fortnight ending 3 July 2010 that Mr Ryan submitted. The amended time sheet was received in time for the pay to be processed. 30He said that where there was no attesting officer an employee should just notate the time sheet as 'NAO' or 'No Attesting Officer'. Mr Ryan was wrong to have signed himself on as you shouldn't sign yourself on in those circumstances. He said Ms Welsh's time sheet was wrong because she had put her signature in the attesting officer column, when she should have only notated that there was no attesting officer. 31He was unaware of any direction from Mr McLeod that employees attending to union business or OHS were not to be disadvantaged and should record their master roster and hours actually worked and get paid whichever was the greater. He was also unaware of any direction from Mr McLeod that if management disputed a claim on an employee's time sheet, the employee would be advised so they could rectify or clarify it. 32During cross examination he was taken through the various entries in Mr Ryan's originally submitted time sheet for the fortnight ending 31 July 2010. He said: [transcript 2 May 2011, from page 25, line 35] 'Q. For tab 2. All right. I'll take you to - I may have misnumbered one when I pulled it out. I'll take you to tab 34, please. So tab 34, this is the original timesheet that Mr Ryan had intended to submit for the fortnight ending 31 July, isn't it? A. Based on what it says, yes. Q. And are there any problems with this timesheet that you've identified? A. Well, he's claiming master roster, he's got "master roster" written on it there, where as far as I know, there wouldn't be an approval to receive a payment of master roster. He was sick on one day, that seemed all right. He signed himself on as the attesting officer, but that's already been discussed. Q. So let's go to the dates themselves. If we start with 27 July, which is the Tuesday, can you see there that Mr Ryan has written time on duty, 15.04, rostered time off time, 23.30, and then due arrival time, 23.15 and eight hours 26 for the total hours on duty. And then he's written next to it, "master roster". So do you have any reason to believe that that wasn't Mr Ryan's master roster? A. No, it could also be interpreted that he actually worked that roster as well. Q. Okay. But underneath, it says there, time on duty, 10.30, time off duty, 14.30, and then he's written, "course", and then 14.30 to it looks like 18.06, the size is reduced, it looks like he has written, "cleaning train", and would you agree that he has written in the remarks column, "shift changed, Friday 23, shift changed to training course with OSM. Pay whatever I'm entitled to", or words to that effect. Would you agree with that? A. Yes, that looks like it, yes. Q. Okay. So is it fair then to assume from reading what Mr Ryan has written, that what he actually did was work from 10.30 until 14.30 in a course and then from 14.30 until 16.06 cleaning a train? A. Yes, based on the remarks, yes. Q. Okay. So the remarks enabled you to determine what Mr Ryan actually did? A. Correct. Q. And knowing what Mr Ryan actually did enabled you to determine what it is that he's entitled to? A. Yes.' 33He explained that the supervisor's confirmation on the time sheets is for audit purposes and indicates that the time sheet is true and correct. An employee's obligation was to record the hours they actually worked on the time sheet. 34He said Mr Olejniczak's time sheet was easier to read. He had made mistakes with listing master roster times and signing off / on duty times. However, because Mr Olejniczak had not filled out the actual departure and arrival times for the trains, you could work out what had happened. In relation to writing train arrival times etc on the time sheets he said: [transcript 2 May 2011, from page 30, line 1] 'Q. You have also been shown Mr Olejniczak's timesheet and you indicated that there is an error in the timesheet in that he has put his time on duty, but that he hasn't, that it's clear what he's worked because he hasn't put his actually arrival time on the trai[n] or his actual time off duty, is that right? A. That is correct. Q. If you look at the timesheet behind tab 2 for Mr Ryan, is it correct that Mr Ryan has put the actual arrival times of the trains he was not on? A. That is correct. Q. If we take it that he didn't actually work his master roster on 22, 23 and 24th? A. Yes. Q. What does it imply when someone puts the actual arrival time of a train on their timesheet? A. Well, it implies that you were actually on the train. If you left it blank, you wouldn't have been on it, so you'd just leave due arrival time and that would be your roster.' 35Evidence of Mr Macklan . Mr James Macklan is the Operations Team Leader, South. He provided a statement dated 21 September 2010 (exhibit 1, Tabs 2A11) and gave evidence on 2 May 2011. 36He states that he instructed the on board staff at Albury that, in addition to recording their actual hours, they should record their master roster on a separate line of the time sheet and then sign their name next to their actual hours. This was to make the time keepers aware of the actual work and staff were not disadvantaged when entitled to claim master roster, for example, where staff were requested to come off master roster at short notice or in an emergency. He said that a time sheet entry should only contain two lines - the hours actually worked and the master roster, with the hours actually worked signed. He agreed that staff attending RTBU meetings shouldn't be disadvantaged and can claim master roster. But staff attending RTBU training cannot claim master roster. He said if an employee was unsure of the difference between a RTBU meeting or training they could ask someone. 37He said Information Bulletin 053/2009 clearly states all staff must have a Duty Officer or PSS attest them on duty. On 22 June 2010 Mr Ryan was not a PSS so he could not attest himself on duty and he was bound by Information Bulletin 053/2009 because he was on duty as a passenger travelling on a train from Albury to Sydney to attend training. He said everyone needs to be attested but if unavailable you can write 'No Attesting Officer, signed myself'. He said SPA's could sign an employee's time sheet as an attesting officer on occasion, but could not sign their own. You should always get someone else to attest you, if available, even a non-RailCorp employee, such as a trainer when at an external training course. He said when Mr Ryan was travelling on 22 June 2010 he was on duty and he understood that staff on the train could have approached him and asked him to help and attest him, even though he was on passive time at that point, in an emergency. Had he been asked to help he would have gone from passive time to active time, which carries a slightly higher rate of pay. 38On 2 July 2010 he spoke to Mr Ryan about his time sheet for the fortnight ending 3 July 2010, as Payroll had returned it, and explained the correct procedure for filling in time sheets, told him not to write notations on the time sheet and to see him if he needed any clarification on a time sheet matter. He also spoke to Mr Ryan again around 3 August 2010, by telephone, about time sheets and not making notations. He agreed that when he instructed Mr Ryan to complete an amended time sheet for 3 July 2010, Mr Ryan did so and he could not recall a time when he had not followed his instructions on time sheets. However, he said Mr Ryan's time sheet for 31 July 2010 did not comply with his instructions from 2 July 2010. 39He said after the first disciplinary matter he reissued to all staff, including Mr Ryan, the relevant Information Bulletins. He did not meet with Mr Ryan and the only times he had sat down with staff to directly discuss the bulletins were when staff had approached him about the matter. 40He said Mr Welsh's time sheet was incorrect because she signed on as attesting herself. She should have either got someone in Melbourne to sign her on or, if she had phoned the Sign On room and been attested over the phone, noted that she had been attested over the phone. He said Mr Olejniczak's time sheet was correctly filled out for someone who was attending an OHS meeting. 41He said he would not have signed the supervisor's certification for Mr Ryan's original time sheet for 3 July 2010 and that it shouldn't have been sent to Payroll without clarifying its contents with the employee. He said he thought Mr McLeod's email agreeing to timesheets being clarified first with employees was basically about missing signatures. He agreed that by speaking to Mr Ryan on 2 July 2010 about his time sheet he was given a chance to correct it. He said time sheets are filled in by the week for a fortnightly time sheet, with two weekly sheets per pay, they should be handed in by each Sunday and they are sent by train to Sydney. 42Evidence of Mr Crimmins . Mr Michael Crimmins is an Investigator and he carried out the investigation in this matter. He provided a statement dated 10 March 2011 (exhibit 1, Tab 2) and gave evidence on 2 and 3 May 2011. 43He said he has never seen Mr Ryan's master roster for the relevant dates. The actual issues with the time sheets were a matter for Payroll officers and his investigation was based on what Payroll said about the time sheets. He also relied on Mr Clancy's statement that Mr Ryan was not entitled to claim master roster. 44He said Mr Ryan needed to be attested when travelling on 22 June 2010 as a passenger because he was on duty and might be called upon in an emergency. He agreed he was not aware of any rail safety work that Mr Ryan did that day. 45Evidence of Mr Clancy . Mr Phillip Clancy is the Deputy Regional Crewing Manager, Sector 2, and prior to 24 August 2010 he was the Manager, Operations, at CountryLink. He provided a statement dated 21 October 2010 (exhibit 1, Tab 2A19) and gave evidence on 3 May 2011. 46He states he received an email on 3 August 2010 about Mr Ryan's time sheet for the fortnight ending 31 July 2010. He made enquiries regarding the hours worked by Mr Ryan and verified they were as claimed. On further review he clarified that: the ST23/22 service on 27 July 2010 was replaced due to track work and Mr Ryan attended training and a tool box talk which totalled 7 hours and 36 minutes not the 9 hours and 26 minutes claimed; and on 29 July 2010 Mr Ryan returned from sick leave and was given a standby shift entitling him to 7 hours and 36 minutes pay. He also originally thought Mr Ryan was only entitled to claim 7 hours and 36 minutes for the sick day on 28 July 2010 but later confirmed that he was entitled to claim the 8 hours and 10 minutes entered on his time sheet. He asked Mr Macklan to arrange for Mr Ryan to resubmit an amended time sheet. 47He said employees should complete their time sheets by filling out their rostered sign in / off times and their actual sign in / off times in the appropriate sections of the time sheet. He agreed that if there is a change to the master roster (usually by way of the fortnightly working roster) an employee would make a comment to make it clear what work was done, for example the 24 June 2010 entries. He said it was not appropriate to put the train arrival times, for example the 22 June 2010 entries, if an employee did not work the train. He said some union related duties can be claimed as master roster rather than actual time worked, depending largely on whether the union related duties were union or employer initiated. He said the RTBU training on 23 June 2010 would be union initiated and you were therefore not entitled to claim master roster. 48He said a tick in the expenses box indicates you are claiming the full expenses for the day, which may include meal allowances, barracks detention and a bed that you supply yourself. He said Mr Ryan would not be entitled to expenses on 23 June 2010 but he would be entitled to meal allowance on 24 June 2010 while travelling. He said Payroll determines what allowances, expenses etc are paid. But the time sheet should reflect the entitlements under the enterprise agreement. He said Payroll doesn't check the entitlement, it just pays so long as it's been authorised by a supervising officer. The supervising officer's responsibility is to both cross check the times worked against the roster and the eligibility for the expenses etc claimed. 49Evidence of Mr McLeod . Mr Greg McLeod is the General Manager, Customer Service, CountryLink. He provided a statement dated 23 September 2010 (exhibit 1, Tab 2A12) and was unavailable to be cross examined. 50He stated he attended a meeting with Albury on board staff on 23 and 24 June 2009. In response to an email from Mr Ryan on 26 June 2009, he replied by email on 30 June 2009 to a number of issues and concerns arising from that meeting. One issue raised was when staff submitted a time sheet and there was a disagreement with the claims made, the staff member should be advised and given a chance to amend the time sheet. His response was 'Agreed. If there is an issue with the time sheet the person submitting the time sheet should be advised'. He said his response was based on the Sign On clerk in Sydney comparing time sheets to the rostered work and any discrepancies, perhaps marked by a 'yellow sticker', would be noted and clarified with Mr Wilmot. He expected discrepancies would be fairly minor variations in the roster or perhaps a missing signature. He would not expect the Sign On clerk to detect fraudulent claims or interpret award conditions. And it was not intended to diminish the personal accountability of an employee in properly filling out a time sheet. 51Evidence of Mr Wilmot . Mr Dave Wilmot is the Crew Rostering Manager for CountryLink. He provided two statements dated 23 September 2010 and statements dated 26 November 2010 and 11 April 2011 (exhibit 1, Tabs 2A13, 2A14 and 2A22 and exhibit 2, Tab B) and was unavailable to be cross examined. 52He stated that on 28 June 2010 Mr Ryan approached him with his time sheet for the week ending 26 June 2010. It was untidy. Mr Ryan asked him what he should claim in relation to the two days of RTBU training. He told Mr Ryan to claim exactly what he worked. He saw Mr Ryan had written something on the right hand side of the time sheet about claiming master roster so he told him that there was no such thing as a claim shift and the time keepers wont pay it. He should also show his master roster on the left hand side of the time sheet with the actual hours worked in the appropriate columns next to it. He states Mr Ryan told him before he left that he was advised at an on board forum that members would not be financially disadvantaged for coming off shifts for union duties. As Mr Ryan hadn't made any amendments to it before he left, he accepted the time sheet as true and correct, signed it and forwarded it to Payroll. In his April 2011 statement he said the correct date for their conversation was on 24 June 2010 as contained in Mr Ryan's filed statement. He also denies he said during that conversation that claim shifts 'only applied to CityRail but if that's what you've been told put it down'. He states he had said 'I think it only applies to train drivers'. He agrees he signed Mr Ryan's time sheet on 28 June 2010, but cannot recall why the Sign On room sent it to him, and, as Mr Ryan had not made any amendments to it, he signed it and sent it to Payroll. 53He states that on 26 June 2009 he forwarded an email from Mr Ryan to Mr McLeod, following on from a team meeting on 23 and 24 June 2009. He understood from Mr McLeod's emailed response that Mr McLeod had agreed to a practice of notifying disagreements with the claims on a time sheet by using 'yellow stickers' when the time sheet was checked by the Sign On room. The time sheets were to be sent to him to check. If he agreed with the time sheet he'd sign it and send it to the time keeper; if he disagreed he'd contact the staff member or supervisor for clarification; and if he identified something fraudulent he'd forward it to the Operations Manager. 54He states he recalls receiving a call from the Sign On room in relation to Mr Ryan's standby shift on 29 July 2010 in his time sheet for the fortnight ending 31 July 2010. He advised the Sign On room that Mr Ryan should be shown as on standby in lieu of his return journey. He did not sign that time sheet as attesting Mr Ryan on or off duty. 55He stated that he could not attend the hearing before the Board because of a long standing pre-booked holiday from 21 April to 7 May 2011. He attached a receipt for the booking, made in April 2010, for accommodation for that period at Forster in New South Wales. 56Evidence of Mr Olejniczak . Mr Stan Olejniczak is a PSS with CountryLink based at Albury. He provided a statement dated 5 April 2011 (exhibit 3) and gave evidence by telephone on 3 May 2011. 57He stated that when he attends OHS or union business during work hours he always writes his master roster on his time sheet as well as his actual hours worked. He was told that employees representing members cannot be disadvantaged in terms of pay for doing that work based, as he understood it, on directions from the RTBU and Mr McLeod. 58He said when he notes the master roster on the time sheet he puts the brackets around the words 'master roster' so it stands out to the time keeper and to indicate he didn't work the master roster but he was taken off it to work OHS. His time sheet entry for 17 February 2011 is an example. He also said he does not put the actual departure and arrival times of the train because he is not travelling on the train. He said he did put in the 'due' (but still no actual) train departure and arrival times for his entry on 17 February 2010 because he was told it related to his master roster entitlement on that occasion. 59Evidence of Mr Ryan . Mr David Ryan was a SPA with CountryLink at Albury at the relevant dates. He provided a statement dated 4 April 2011 (exhibit 4) and gave evidence on 3 May 2011. 60Mr Ryan states he attended a RTBU training course on 23 and 24 June 2010, travelling to the course as a passenger on 22 June 2010 and returning as a passenger on the evening of 24 June 2010. It was the first time he had been to RTBU training and on 24 June 2010 when in Sydney he saw Mr Wilmot to discuss, among other issues, how he should complete his time sheet. He showed his time sheet to Mr Wilmot who told him he didn't think he could claim master roster for training. He told Mr Wilmot that both Mr McLeod and the RTBU said that employees attending union business or OHS were not to be disadvantaged and he believed he was meant to record both his master roster and the actual hours worked in order to receive whichever was the greater. Mr Wilmot replied to the effect that he 'thought it only applied to CityRail employees but if that's what you've been told then put it down'. He states he told Mr Wilmot he would fill it in that way and write a note on the top of the time sheet. He states that he did not claim anything he did not believe he was entitled to, he put nothing false on the time sheet and the hours he worked and what he was doing were recorded. 61He states the first time he became aware that there was a problem with that time sheet was when he received the allegation letter dated 4 August 2010. He agreed Mr Macklan spoke to him on 2 July 2010 to prepare an amended time sheet but, as he believed Mr McLeod had agreed staff would be notified and have an opportunity to make amendments if there was a disagreement with timesheets, he considered Mr Macklan's request for an amended time sheet as part of the normal time sheet process. He said Mr Macklan only told him to put in an amended time sheet showing just what he did and nothing more and that Payroll was not happy with him writing notations on the time sheets and he should keep it as basic as possible. 62He states that it has always been his understanding, and a practise followed by everyone, that if there is no Attesting Officer available you are to sign your sheet and make a note in the remarks column. He also understood that if he was on union business and not performing RailCorp work he did not need to be attested. For 22 June 2010 he showed all the appropriate information on his time sheet about what he had done. He attached a time sheet from Ms Welsh to demonstrate that signing your own sheet when no Attesting Officer was available was common practice. He has read Information Bulletin 053/2009 and states it would not apply to him in any event because he was not engaged in rail safety work on 22 June 2010. He said when he reported for work there was no attesting officer so he rang the Sign On room and advised them he was at work and had attested himself as no one was available to attest him. 63He states the time sheet he first submitted for the fortnight ending 31 July 2010 was filled in from memory because he lost the original and is marked as received by Payroll on 2 August 2010. The original time sheet was found on 3 August 2010 and he also submitted that time sheet which was received by Payroll on either 8 or 9 August 2010. He then received the allegation letter of 4 August 2010. He said he did not receive a telephone call from Mr Macklan on 3 August 2010 about his time sheet for the fortnight ending 31 July 2010 and says Mr Macklan must be lying about the call. 64The entries for 27 July 2010 show his master roster was for the ST23/22 from 1504 to 2330. That train was cancelled with short notice and instead he did training from 1030 to 1430 and train cleaning from 1430 to 1806, a total of 7 hours and 36 minutes. He states that although the entry for 27 July 2010 might appear to be written as 9 hours and 26 minutes, it was written as 8 hours and 26 minutes, as borne out by the actual start and finish time entries, and again shown clearly as 8 hours and 26 minutes on the subsequently submitted 'original' timesheet. He said he believed he was entitled to the master roster rate for that day because the cancellation was at short notice. On 29 July 2010 his master roster was for 8 hours and 10 minutes, as recorded on both sheets. But he was placed on a standby shift from 0600 to 1336, a total of 7 hours and 36 minutes, after he returned from sick leave taken on 28 July 2010. He recorded these details on both sheets. He states he showed what he was doing on these time sheets, he did not claim anything he did not believe he was entitled to and didn't try to hide anything. 65He states that he often had difficulty contacting his Payroll officer because of unreturned phone calls. He has tried to be proactive about time sheet issues and asked about templates. He said the counselling Mr Olsen provided him on the Code, after the previous disciplinary matter, was basically receiving copies of the latest amendments to the Code and being talked through them. Mr Olsen also said he would contact his managers about more time keeping training. He never received any further instruction from Mr Macklan on time keeping and attendance, other than their conversation on 2 July 2010. 66Mr Ryan also states that he felt he was the target of a campaign of bullying and harassment by RailCorp managers and believes these charges are a continuation of that campaign. He said he felt on the last occasion he was disciplined for putting in too little information and this time he was disciplined for providing too much information. 67He said he understood in Albury you always put in the master roster and details of what you actually did, if you are taken off the master roster. He said he always put down the train running details, including the actual departure and arrival times, because he was told that you fill in the master roster as though you were doing the trip. He was asked if he agreed that it would be sufficient in putting down his master roster to put in the diagram number, the time you were rostered on and off and the time you were due. He said he would have agreed with that prior to the last time he appealed to the Board, now he puts down anything that's available. 68He said he has learnt since this happened that RTBU training is taken as special leave. He said he ticked, and circled, the expenses boxes for 22, 23 and 24 June 2010 because there was a discrepancy as to whether RailCorp or the RTBU should pay those expenses. He had approached the RTBU and Mr Wilmot on the matter, no one could give him an answer and he still doesn't know who will pay him the expenses. He also said he wasn't sure if he was entitled or not to overtime for 24 June 2010. The entries for overtime in the remarks column for 24 June 2010 include the number '41' that was written in by Mr David Cater who was the appropriate officer to provide him with an overtime reference number. 69He rejected the suggestion that it was not possible to work out what he had worked from the information in the time sheets for the fortnight ending 3 July 2010. He said he filled it out to the best of his ability and, off hand, he can't see anything wrong with it. 70He said when he returned from his suspension on 18 March 2010 he was again the secretary of the Albury branch of the union. The members had nominated and elected him in his absence and without his consent. He told them he couldn't hold the position but would train somebody to replace him and then resign, which he did. Findings 71This is an appeal under clause 43 of the Transport Administration (Staff) Regulation 2005 ("the Regulation") against RailCorp's decision to impose the punishment of dismissal on Mr Ryan. Section 23(1) of the TAB Act provides that the Board may decide to allow or disallow the appeal or make such other decision as it thinks fit. 72Mr Ryan disputes the misconduct findings made by RailCorp and its decision to dismiss him from his employment. The Board's function in this matter is, in effect, to determine whether the disciplinary punishment imposed by RailCorp in relation to the misconduct findings is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. The Board is obliged to determine the disputed issues before it on the civil standard of proof, that is, the balance of probabilities. The Board is also obliged to approach the matter in a manner consistent with the principles in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. 73The Board found the witnesses who gave evidence at the hearing to be truthful witnesses. Any inconsistencies, contradictions or changes in their evidence are largely attributable to the different perspectives witnesses may have from each other of the same set of event, problems of recall and memory over time, later reconstructions and, particularly in this case, different understandings of the actual practice in relation to workplace policies and procedures. 74The Board accepts that Mr Ryan is a witness of truth and generally accepts his evidence. As with the witnesses for RailCorp, there were some inconsistencies, changes etc in some of his evidence which can be attributed to memory and recall problems. The Board should say at the outset that it accepts without reservation Mr Ryan's evidence that the time sheet (in the time sheet he first submitted) entry for 27 July 2010 was written (somewhat poorly) and claimed as 8 hours and 26 minutes, not 9 hours and 26 minutes. 75However, it is also clear to the Board, that Mr Ryan's perception of events is, to a degree, coloured by his view that there was a campaign of harassment and bullying amongst some (but not all) of RailCorp's managers, including Mr McLeod and to a lesser extent Mr Macklan. In light of a number of comments during the course of his evidence including that 'Mr Macklan doesn't contact me, he didn't even contact me to sack me. I had to go into work to find out I was sacked. So that speaks for itself', the Board considers Mr Ryan's recollections of his dealings with Mr Macklan to be somewhat coloured and therefore prone to reconstruction. As such, the Board prefers the evidence of Mr Macklan over that of Mr Ryan in relation to their conversation on 2 July 2010 and to the existence of a brief telephone conversation around 3 August 2010 concerning time sheets. 76A number of witnesses were not available for cross examination. Although there were objections to the Board receiving their evidence given their unavailability, the Board considered it appropriate to accept the statements and carefully consider what weight should be given to that evidence. Where the evidence of these witnesses conflicts with that of a witness who was cross examined, the Board generally prefers the evidence of the latter. In particular, there is some degree of conflict between the evidence of Mr Wilmot and Mr Ryan about their conversation and actions on 24 June 2010. The Board prefers and accepts Mr Ryan's evidence about their meeting on 24 June 2010. 77The 3 allegations against Mr Ryan arise from some of his time sheet entires for the fortnights ending 3 July 2010 and 31 July 2010 (Allegations 1 and 3) and failing to attest in accordance with Information Bulletin 053/2009 (Allegation 2). 78The attestation allegation is relatively straightforward - putting aside the almost complete lack of agreement amongst the witnesses as to what was the correct way to record self-attestation on a time sheet - it cannot be sustained on the evidence before the Board. 79When Mr Ryan reported for work on 22 June 2010 no attesting officer was available so he contacted the Sign On room and attested himself on his time sheet. Information Bulletin 053/2009 sets out clearly the requirements for a RailCorp CountryLink employee to be attested by an attesting officer before commencing rail safety work. Mr Ryan, whilst on duty on 22 June 2010, was not engaged in rail safety work when 'PAXing' to Sydney. Mr Ryan denies he was doing any rail safety work on 22 June 2010, Mr Crimmins was unaware of any rail safety work Mr Ryan did on 22 June 2010 and Mr Macklan agreed that Mr Ryan was not doing rail safety work while travelling on passive time. 80The Board accepts that Mr Ryan potentially could have been called upon by RailCorp employees on the train to assist in an emergency as indicated by both Mr Crimmins and Mr Macklan. Had that happened Mr Ryan would have been undertaking rail safety work from that point on and, as Mr Macklan said, he could have been attested at that point. But Mr Ryan was not called upon to assist and remained throughout the trip a passenger, on duty but on passive time. 81Allegation 2 was framed in terms of Information Bulletin 053/2009. The provisions of Information Bulletin 053/2009 do not cover Mr Ryan's duties on 22 June 2010 - non rail safety work. As such, Allegation 2 has not been made out by RailCorp and is dismissed. 82The allegations concerning Mr Ryan's time sheet entries for the fortnights ending 3 July 201 and 31 July 2010 are somewhat more complex. 83All witnesses agreed that an employee must set out the actual work they did in their time sheet. Although there were many other points of agreement, not one of the witnesses from RailCorp was entirely consistent with any of the other witnesses as to the proper way to fill in a time sheet. 84Mr Carter, Mr Clancy and Mr Olejniczak agreed that it was not correct to show the actual train departure and arrival times on a time sheet unless the employee was on the train. Recording the actual time, rather than the due time, a train arrived etc suggests the employee was working on that train. Commonsense also supports the views of Mr Carter, Mr Clancy and Mr Olejniczak on this point. 85A major difference between Mr Carter, from Payroll, and the other witnesses was that Mr Carter considered it wrong to enter master roster details. However Mr Macklan, Mr Clancy and Mr Wilmot recognised there were times when it was necessary to do so. Indeed, Mr Macklan's evidence was that he instructed Albury staff to enter their master roster details, when it was appropriate, in the time sheet. In turn, there were some minor variations between the evidence of Mr Macklan, Mr Wilmot and Mr Clancy as to when it was appropriate to enter master roster details. Overall, their evidence was it basically covered situations where an employee was taken off the master roster at short notice and when attending OHS or union meetings (depending, perhaps, on whether RailCorp or the RTBU initiated the meeting). 86Mr Clancy, Mr Carter and Mr Macklan agreed that the supervising officer's certification on the time sheet was important. Mr Macklan gave evidence that he would not have certified Mr Ryan's time sheet for the fortnight ended 3 July 2010 but would have sought clarification from Mr Ryan. Mr Clancy, the most senior CountryLink manager to give evidence, said the supervising officer was responsible for checking both the times worked against the roster and eligibility for the payments, expenses etc claimed. The evidence of Mr McLeod, Mr Wilmot and Mr Macklan confirms there was a practice in place for Albury on board staff to have disagreements with their time sheet claims brought to their attention and to be given an opportunity to clarify or amend it. Mr McLeod considered it to relate to minor matters and missing signatures, Mr Macklan considered it to cover missing signatures, Mr Wilmot, who was responsible for dealing with the 'yellow sticker'-ed items considered it to cover things up to and including potential fraud and Mr McLeod's email of 30 June 2009 covering that issue is ambiguous at best. 87It is important to keep the slightly inconsistent approach or understanding that existed between the managers on what should be recorded in time sheets, the responsibilities of a supervising officer when signing a time sheet and the practice to be followed in Albury in cases of disagreements about employee time sheets, in mind when considering Mr Ryan's actions in filling out his time sheets. 88Mr Ryan's own approach was generally consistent with the practices etc in Albury. He discussed his time sheet entries with Mr Wilmot on 24 June 2010 because, as it was the first time he had attended RTBU training, he was unsure what he was entitled to and how he should record it in his time sheet for 22, 23 and 24 June 2010. Mr Wilmot did not believe he could claim master roster and Mr Ryan, based on his own understanding of what his managers said about the times an employee could claim master roster, thought he could claim master roster. He completed it on that basis and submitted the time sheet. Similarly, he noted his possible expenses for that period. When Mr Macklan told him on 2 July 2010 he had to submit an amended time sheet he did so without argument and thought nothing more of it until the allegation letter of 4 August 2010. His time sheet(s) for the fortnight ending 31 July 2010 were completed in the same vein - he believed he was entitled, for example, to the master roster rate for 27 July 2010 because he had been moved to other duties at short notice when the train was cancelled. 89In Allegations 1 and 3, RailCorp says Mr Ryan 'did not show accurate records of work performed'. After carefully considering all the material before it, the Board finds that Mr Ryan did not show accurate records of work performed in his time sheets for the fortnights ending 3 July 2010 and 31 July 2010. 90However, in the Board's opinion, this finding is limited to his time sheet entries were he recorded the actual arrival times of trains when he was not on or working those trains. Those entires for 22 June 2010, 23 June 2010 and 27 July 2010 suggest to the reader that Mr Ryan was on the trains in question. If Mr Ryan were considered to be on those trains, then the amount of work performed by Mr Ryan and his entitlements would be entirely different to the actual situation on those days. 91Although Mr Ryan did put a lot of information in, and make various notations on, his time sheets, it was all information (actual train arrival times excepted) that allowed the reader to accurately determine what work Mr Ryan performed on those days and thus calculate his entitlements. This position was particularly confirmed in the Board's view by Mr Carter's evidence when he was taken through the relevant entries on a step by step basis. 92Therefore the Board upholds Allegations 1 and 3 to the extent they related to the entries for 22 June 2010, 23 June 2010 and 27 July 2010. 93Having upheld, in part, Allegations 1 and 3, the Board must determine the appropriate punishment to impose on Mr Ryan under clause 37 of the Regulation. 94He should not have completed the actual train arrival details when he was not on the trains in question and it was an error to do so. He compounded his error by doing so on three occasions over two separate time sheets. He also completed the incorrect entry on his time sheet for the fortnight ending 31 July 2010 after 2 July 2010 when Mr Macklan had him resubmit the time sheet for the fortnight ending 3 July 2010 (without any train details) and he had been told to see Mr Macklan if he had any questions about what to claim. The Board must also take into account that he was previously disciplined for misconduct in relation to time keeping issues, although for a different set of time sheet issues. 95However, the Board accepts that for his time sheet for the fortnight ending 3 July 2010 he was uncertain as to what to record and claim as it was the first time he had attended RTBU training and he made particular efforts to put in the right entries by seeking the advice of Mr Wilmot. He was also aware of the 'yellow sticker' system used in Albury and believed time sheet disagreements would be brought to his attention under that local arrangement. He completed the relevant entries on the basis that he might be eligible for master roster rates and showing the train details was how he believed you filled out the master roster details on the time sheet. The Board also takes into account the somewhat unsatisfactory state of affairs in Albury concerning the slightly different views as to the appropriate practice and procedure to follow with time sheet entries. The Board is also mindful of the responsibilities of a supervising officer in relation to certifying time sheets, together with Mr Macklan's evidence that he would not have certified the time sheet for the fortnight ending 3 July 2010 but would have sought clarification from Mr Ryan. As well as Mr Macklan's evidence that he provided further assistance to Mr Ryan on the time keeping and attendance procedures not by meeting with him but by re-issuing Information Bulletins to all staff. 96In all the circumstances of this case, to dismiss Mr Ryan from his employment with RailCorp would be entirely disproportionate to the overall seriousness of the misconduct involved. A suspension without pay for one week is, in the Board's opinion, the appropriate punishment to impose on Mr Ryan for his misconduct under clause 37 of the Regulation. 97RailCorp's decision to dismiss Mr Ryan effective from 20 January 2011 will be set aside and Mr Ryan reinstated without any loss of continuity of employment. He is entitled to an order for RailCorp to back pay him for the period from his dismissal up to the date of this decision. The order for back pay will need to be adjusted to take into account the period of suspension without pay imposed by the Board. Order(s) 98The Board makes the following orders in relation to the appeal (TAB21 of 2011): (1)The appeal is allowed; (2)The decision of RailCorp to dismiss Mr Ryan with effect from 20 January 2011 is set aside and he is reinstated to his position of Senior Passenger Attendant without loss of continuity; (3)Mr Ryan is suspended without pay for the period from 20 January 2011 to 26 January 2011 (inclusive); and (4)RailCorp is to make a payment within 14 days of the date of this decision to Mr Ryan of the amount of pay he would have received as a Senior Passenger Attendant from RailCorp, from 27 January 2011 to the date of this decision, but for RailCorp's decision to dismiss him. M Oakman Acting 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: 30 June 2011