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. THE EVIDENCE 5Mr Michael Payne is a transit officer employed by RailCorp whose primary responsibility is to investigate allegations and issues arising under the Rail Safety Act 2008 and the regulations made pursuant to it. He was informed by radio to attend Platform 23 at Central Railway Station as there was an item placed at the Redfern end of the platform which may possibly obstruct trains. He attended the platform and discovered a microwave oven approximately three metres from the Redfern end of Platform 23. 6A decision was made to stop all trains to Platform 23 and later to Platform 22 as it provided the only access to Platform 23. It appears to me that the decision to stop the trains was taken simply to remove the microwave oven and not because where it had actually fallen was in any way obstructing trains or presenting a safety risk. But to remove it from where it was placed would mean stopping the trains to the relevant platforms to permit that to occur safely. 7Mr Gossner does not deny removing the microwave oven from the crew room. He denes throwing it onto the rail corridor. He claimed instead that he dropped it. Security surveillance material provided to me to view in this hearing is, in my opinion, inconclusive to establish whether Mr Gossner threw the microwave oven or dropped it. 8In a written statement Mr Gossner outlined his version of the events on Wednesday, 3 November, 2010, viz: "....I was relieved for crib...and believe I was talking to another driver for about five or ten minutes. I then decided to go and purchase some food from one of the shops at the Redfern end of the station. I checked a number of shops but the food did not look very good as it was late in the day. I then decided to warm food up that I had in my bag. I walked back to Platform 23 and went into the crew room to prepare my food. I placed my food into the microwave oven but I could not turn the microwave oven on because the control knob to turn it on and set the timing was broken. After a period of time, attempting to get the microwave oven to work another driver who I do not know said: 'It doesn't work, you are wasting your time and it has been reported and it still does not work.'. Another driver made some comments about the microwave that I cannot recall. By this time it was getting close to the end of my crib and I had not had any food and in frustration I unplugged the microwave oven and placed it in the rubbish bin so that they would have to replace it. A few minutes later I realised the cleaner would put the microwave oven back onto the bench and it would not be replaced. I then removed it from the rubbish bin and walked outside with it and lifted the microwave oven over the railing of the fence and dropped it next to the building. I then briefly went back into the crew room then came back out to ensure the microwave oven was clear of the train tracks and continued on with my rostered diagram. 9Mr Gossner has conceded that his actions were not appropriate, ie that it was not in the best interests of RailCorp and he should have managed the situation differently. He asserts that he would do so in future. He indicated in his evidence that he now recognised the proper course for him to adopt would have been to place a note on the microwave that it was not working. He indicated in mitigation that at the time he was experiencing a number of problems with a house he was building and because he was to immediately return from his crib to drive a train and it would have therefore been a further three hours before he had a break for a meal. He also asserted that it has been his experience that RailCorp had often made promises to have things repaired or replaced but had not done so. SUBMISSIONS 10Mr Cartwright submitted that, whilst Mr Gossner has accepted that his conduct on Wednesday, 3 November, 2011 constituted a breach of the RailCorp code of conduct, when he dropped the microwave oven over the rail at the end of Platform 23, he made sure it was clear of the rail tracks. According to Mr Cartwright , Mr Gossner's actions did not endanger the safe operation of trains on the rail network. Mr Cartwight has sought that a lesser penalty to dismissal be imposed on Mr Gossner - he suggested a two week suspension - but that he be reinstated in employment as a train driver. Apart from this incident, he pointed out that Mr Gossner had an otherwise blameless employment record. Mr Gossner has not been able to find alternate employment since his dismissal and has suffered a significant financial burden with his dismissal. 11Ms Robinson argued in her submissions that, in the circumstances, the termination of Mr Gossner's services was the appropriate penalty to impose for him. She indicated that it was really irrelevant whether Mr Gossner threw the microwave off the platform (in frustration or a temper) or dropped it. His conduct was still inappropriate and warranted his dismissal. CONCLUSION 12Mr Gossner has admitted that he acted wrongly on Wednesday, 3 November, 2010. As Ms Robinson suggested in the hearing, even if the microwave oven did not itself actually land in a place that it obstructed the tracks after he threw or dropped it from some little height, it still may have bounced into an area that did obstruct trains. In any event, it was a senseless act by Mr Gossner. I am satisfied that he now recognises that fact and regrets committing it. It appears to me to have been a spur of the moment decision by him - an act taken by him in the heat of the moment and because of his frustration at the microwave oven not heating the food for his meal in the time he had available as part of his crib. 13Of course, it is always open to an employer to chose a lesser penalty to dismissal of an employee guilty of acting in an inappropriate manner, eg counselling, a warning or a suspension, rather than dismissing him, particularly where the dismissed employee has an otherwise satisfactory employment record. It is also a legitimate function of industrial tribunals in this country to examine the severity of a particular penalty to an employee and to determine if, in all the circumstances, it is excessive. 14For instance, Watson J of the former State Industrial Commission in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (1973) AR 231 had this to say (at p.233): "...In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence..." 15The Full Bench of the State Industrial Relations Commission (Fisher P, Hungerford J and Connor CC) in Pacific Power v Crump (1993) 48 IR 296 commented in that connection (at p.302) that the test was whether or not: "...the ultimate sanction of termination of employment was too severe a penalty..." 16I consider it appropriate for that type of reasoning to be imported into the deliberations of the TAB. 17However, I would not wish this decision to be taken in any way to be an indication that I condone Mr Gossner's conduct on Wednesday, 3 November, 2010: I do not. Mr Gossner's conduct still merits censure, in my opinion. I decline to reduce the penalty imposed against him by RailCorp to the two week suspension which Mr Cartwright has proposed. A more substantial penalty is warranted, in my opinion. ORDER 18In the circumstances, the TAB orders the reinstatement of Mr Gossner to his former position of as train driver. That order shall have effect from the date of this decision, ie Thursday, 14 July, 2011. Continuity of his service shall be preserved but there shall be no recompense for loss of earnings in the meantime. I uphold the appeal to that extent. P J CONNOR 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: 14 July 2011