Leslie Lee Gossner v Rail Corporation of New South Wales [2011] NSWTAB 11

Transport Appeal Boards New South Wales Medium Neutral Citation: Leslie Lee Gossner v Rail Corporation of New South Wales [2011] NSWTAB 11 Hearing dates: 8 July 2011 Decision date: 14 July 2011 Before: Connor C (Board) Decision: Appellant reinstated as a train driver. Claim for only a two week suspension rejected Catchwords: DISMISSAL - rail services - train driver - breach of the established code of conduct - actions of employee inappropriate - dismissal considered to be too harsh a penalty having regard to satisfactory employment record - reinstatement of employee ordered - loss of earning from the date of dismissal to the date of his reinstatement declined Legislation Cited: Rail Safety Act 2008 Cases Cited: Metropolitan Meat Industry Board v Australasian Meat Industry Employee's Union (1973) AR 231 Pacific Power v Crump (1993) 48 IR 296 Category: Principal judgment Parties: Leslie Gossner (Appellant)

Rail Corporation of New South Wales (Respondent) Representation: Mick Cartwright, Rail Tram and Bus Union (Appellant)

Melanie Robinson, Rail Corporation of New South Wales (Respondent) File Number(s): TAB 974 of 2011

DECISION

PRELIMINARY 1Mr Leslie Gossner was employed as a train driver by the Rail Corporation of New South Wales (RailCorp). He commenced as a trainee driver in the middle of 2006 and twelve months later was promoted to electric train driver. He retained that position until his services were terminated on Monday, 11 April, 2011 for breaching the RailCorp code of conduct in that on Wednesday, 3 November, 2010 he removed a microwave oven from the crew room for the train drivers at Platform 23 of Central Railway Station and it ended up on the rail corridor adjacent to the track where he either threw or dropped it. 2In particular, among other things, the RailCorp code of conduct provides as follows: "...RailCorp employees, contractors and consultants are to comply at all times with the behaviours outline in this code of conduct. You are also to adhere to the following general principles: * put safety first in everything we do; * always act in the best interest of RailCorp; * maintain and promote high levels of acceptable behaviour. As an employee, contractor or consultant of RailCorp you are responsible for the way you behave and your actions. All your decisions must be ethical and comply with legislation, enterprise/collective agreements, awards, policies, procedures, rules and job requirements..." 3A disciplinary investigation was conducted by RailCorp and a letter containing the allegation was sent to Mr Gossner on Wednesday, 15 December, 2011. He responded in writing on Tuesday, 11 January, 2011 but declined an invitation to attend a disciplinary interview scheduled for Tuesday, 18 January, 2010. The preliminary recommendation of the disciplinary review panel on Monday, 21 February, 2011 was for Mr Gossner's dismissal and he was informed of that preliminary finding on Friday, 4 March, 2011 and given fourteen days to respond with submissions in regard to the recommended penalty. Mr Gossner provided a response on Tuesday, 22 March, 2011. On Monday, 4 April, 2011 the preliminary recommendation and Mr Gossner's response to them were considered and the decision was subsequently taken to terminate Mr Gossner's services. 4Mr Gossner lodged a notice of appeal to the Transport Appeal Board on Wednesday, 27 April, 2011. The matter came before Bishop C for conciliation on Friday, 20 May, 2011. The conciliation was unsuccessful and the file was scheduled for arbitration and allocated to me for a hearing on Friday, 8 July, 2011. Mr Gossner is a member of the Rail Tram and Bus Union. In the hearing Mr Cartwright represented Mr Gossner and the RTBU and Ms Robinson represented RailCorp. Ms Robinson required Mr Gossner to give evidence in the hearing and he gave evidence under oath.