Smith v Rail Corporation of New South Wales [2011] NSWTAB 13

Transport Appeal Boards New South Wales Medium Neutral Citation: Smith v Rail Corporation of New South Wales [2011] NSWTAB 13 Decision date: 03 August 2011 Jurisdiction: Civil Before: Connor C (Board) Decision: Appeal for reinstatement in employment rejected Catchwords: DISMISSAL - rail services - train driver - breach of established code of conduct - past unsatisfactory employment record - alleged protected industrial action - alleged breach of provisions of the collective agreement Legislation Cited: Federal Fair Work Act 2009 Cases Cited: Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Federated Storemen and Packers' Union Case (1988) 22 IR 198 John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union (1973) AR 231 Pacific Power v. Crump (1993) 48 IR 296 Smith v RailCorp [2011] NSWTAB 3 Category: Principal judgment Parties: Michael Glen Smith (Appellant)

Rail Corporation of New South Wales (Respondent) Representation: Leigh Heaney,Rail, Tram and Bus Union (Appellant) Annette Baxter, Rail Corporation of New South Wales Respondent) File Number(s): TAB 959 of 2011

DECISION

INTRODUCTION 1On Wednesday, 27 April, 2011 Mr Michael Smith lodged a notice of appeal to the Transport Appeal Board concerning the termination of his services as a train driver with the Rail Corporation of New South Wales on Monday, 4 April, 2011. It is alleged by RailCorp that Mr Smith breached the RailCorp code of conduct and established procedures for train drivers. Mr Smith has pleaded not guilty to those allegations in his notice of appeal but now understands that his actions were wrong. 2Relevantly, the RailCorp code of conduct provides: "We are responsible for behaving positively. RailCorp employees, contractors and consultants are to comply at all times with the behaviours outlined 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. * Help and build and maintain a 'just culture' where employees are treated fairly and justly. 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, awards, policies, procedures, rules and job requirements. In your work at RailCorp you must: * carry out your duties carefully, safely, honestly, courteously and fairly; * use RailCorp resources properly, efficiently and economically; * treat members of the public and colleagues fairly, consistently and with respect; * be honest and accurate in timekeeping and in meeting attendance requirements; * create and maintain full and accurate records of work performed, including reasons for your decision making; * carry out all lawful directions from managers/supervisors to the best of your ability." 3The RailCorp train working procedures [TWP102] states as follows: "Unless authorised, employees must not interfere with any equipment on RailCorp trains" 4And: "Unauthorised persons must not enter or remain in a crew compartment, at any time." 5The matter came before Macdonald C for conciliation on Thursday, 14 April, 2011. Mr Smith is a member of the Rail, Tram and Bus Union which represented him in those conciliation proceedings. The conciliation was unsuccessful and with standard directions to the parties for the filing of the necessary evidentiary material, the file was scheduled for arbitration and ultimately allocated to me for a hearing on Thursday, 21 July, 2011 and Friday, 22 July, 2011. 6Mr Heaney represented Mr Smith and the RTBU in those arbitrated proceedings and Ms Baxter represented RailCorp. Mr Heaney called Mr Smith to give evidence in the hearing under oath.