Crutcher v RailCorp [2011] NSWTAB 15

Transport Appeal Boards New South Wales Medium Neutral Citation: Crutcher v RailCorp [2011] NSWTAB 15 Hearing dates: 15 August 2011 Decision date: 23 August 2011 Before: Bishop C Decision: Appeal allowed, see orders at paragraph 87. Catchwords: PUBLIC SERVICE - discipline and misconduct - rail employee - falsification of sick leave applications and medical certificates - police charges laid - dismissed by employer - appeal to Transport Appeal Board - Held - Appeal allowed - misconduct committed but employee suffering severe depression at relevant time - other mitigating personal circumstances - no intent to defraud - sick leave available - criminal charges dismissed in Local Court under Mental Health Act - employee admitted wrongdoing at all stages - expressed remorse - dismissal set aside - employee suspended without pay for four weeks. Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Transport Administration (Staff) Regulation 2005 Transport Appeals Board Act 1980 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board & Anor [2005] NSWSC 811 Category: Principal judgment Parties: Stephen Crutcher (Appellant)

Rail Corporation of NSW (Respondent) Representation: Mr M Cartwright (Appellant) Rail Bus & Tram Union

Ms A Baxter (Respondent) RailCorporation of NSW File Number(s): TAB 965 of 2011

DECISION

Introduction 1Mr Crutcher commenced employment with RailCorp (and/or its predecessors) as a Station Assistant, became a Customer Service Attendant Level 2 in 1998 before training as a Train Guard in September 2002. He was employed as a Train Guard with Train Crewing at Hornsby as at the time of his dismissal. 2On 5 April 2011 Mr Crutcher was dismissed for breaches of RailCorp's Code of Conduct . 3On 19 April 2011 Mr Crutcher filed an appeal with the Transport Appeal Boards against his dismissal indicating a 'not guilty' plea to the allegations against him. 4There were 16 separate allegations raised against Mr Crutcher that he breached the Code of Conduct arising from applications he made for sick leave where he: In an application for sick leave for the 23 October 2009 Guard Crutcher provided false and misleading information to RailCorp. The particulars of the allegations are: a)He submitted a signed application for sick leave for the 23 October 2009. b)Next to his signature it states "I agree with all the above". c)On the form it states "Have you attached a medical certificate" and the box marked "Yes" is ticked. d)He did not have a genuine medical certificate for this day. Guard Crutcher provided a false and misleading document to RailCorp to support his application for sick leave for the 23 October 2009. The particulars of the allegation are: a)He signed an application for sick leave for the 23 October 2009. b)Next to signature it states "I agree with all the above". c)On the Form it states "Have you attached a medical certificate" and the box marked "Yes" is ticked. d)He provided a document which appears to be a medical certificate dated 23 October 2009 from Dr Hassan Raza of the Norah Head Medical Clinic. The document states "This is to certify that I have today examined: Mr Stephen J Crutcher, 102 Hatton Road, North Entrance 2261. In my opinion, he will be unfit for his work on 23. 10. 2009" e)He did not attend the Norah Head Medical Centre on the 23 October 2009. f)He was not examined by Dr Hassan Raza on the 23 October 2009 g)Dr Raza did not issue any medical certificate for him on this date. 5Apart from the allegations concerning the application made on the 23 October 2009, a further 14 allegations concerning 7 nominated occasions of similar applications were set out in identical terms in relation to the following dates: 4 November 2009; 10 -11 May 2010; 4 June 2010; 15 -16 June 2010; 22 -23 June 2010; 6 August 2010; 16 -18 August 2010; and 19 -20 August 2010.