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. Background and Chronology 6In August 2008, Mr Chris Berry, Operations Standards Manager at Hornsby Depot, placed Mr Crutcher on an Attendance Management Plan arising from his poor attendance with the requirement that he provide a medical certificate for any unplanned absences. This was reviewed in January 2009 and, due to improvement, the restriction was lifted. On 11 August 2009 after further review Mr Crutcher was again placed on an Attendance Management Plan with the requirement that he again provide a medical certificate for any unplanned absences (Exhibit 1-E7). 7As a result of inappropriate language used by Mr Crutcher to Mr Berry in the meeting of 11 August 2009 concerning the Attendance Management Plan he was issued with a formal written warning. 8Mr Crutcher subsequently provided Mr Berry with 6 medical certificates on 26 August 2010 which resulted in Mr Berry having doubts about their authenticity and initiating enquiries of the Medical Centre referred to in the Certificates (including speaking to Dr Raza) as well as enquiries as to RailCorp's leave records for Mr Crutcher. As a result 14 medical certificates were identified as suspicious. The matter was referred to the General Manager Human Resources Business Partner on 6 October 2010 and then referred to RailCorp's Investigations Unit for investigation. 9Mr John Kinney, Senior Investigator conducted the investigation and obtained witness statements from Dr Raza, Mr Mark Zorzino (Payroll Support Officer) and Mr Chris Berry (the OSM) and also liaised with NSW Police. 10On 21 October 2010, Mr Kinney sent a letter to Mr Crutcher requesting that he respond to 16 allegations that he had breached the Code (with copies of the Code, the Discipline Policy and the medical certificates in question enclosed) (Exhibit 1-E15). 11On 4 November 2010, Mr Crutcher replied to Mr Kinney's letter (Exhibit 1-E9) and in doing so admitted that the allegations were true and that he understood that his actions breached the Code . He requested that consideration be given to his personal circumstances, which included: the end of a long term relationship in February 2009; a severed relationship with his three children; a mental breakdown in December 2009 for which he was placed on anti-depressants; and his being placed on medical restrictions by OSM Berry and instructed to provide medical certificates for absences. 12He further submitted that whilst his absences were genuinely related to his health, it was difficult to get a doctor's appointment on the day sick leave was taken, that he panicked and did "the only thing" he thought he could do and "that was to provide false medical certificates". 13Mr Crutcher was arrested by NSW Police on 10 November 2010, interviewed and charged with 18 offences under the Crimes Act 1900 (9 counts of Make False Instrument To Obtain Financial Advantage and 9 counts Use False Instrument To Obtain Financial Advantage). He pleaded "Not Guilty" and the charges were subsequently heard in the Local Court on 31 May 2010. 14On 11 November 2010, Mr Crutcher was advised that he was temporarily suspended on pay as from in accordance with s.38 of the Transport Administration Regulations 2005 as a consequence of information provided by NSW Police. That suspension on pay continued up until his eventual dismissal. 15On 9 November 2010 Mr Kinney sent Mr Crutcher a letter inviting him to attend a voluntary disciplinary interview scheduled for 17 November 2010 (Exhibit 1-E10) This invitation was declined by Mr Crutcher by a handwritten fax dated 17 November 2010, enclosing a medical certificate from Dr Nicholas Robin Smith stating that he was suffering from depression on 15 November 2010. Mr Crutcher indicated in the fax as follows (Exhibit 1-E12): Dear Mr Kinney, I refer to your subject letter in which you advise me of a disciplinary interview which is scheduled for 10 am, Thursday 17th NOV 2010. I wish to you that due to my current mental state and increased stress levels, that I will not be attending this interview. Since this situation has come to light I have retreated into a state of depression for which again I am currently receiving medical treatment. I am also making arrangements for counselling through the RailCorp Employee Assistance Program. Please see attached medical certificate for your information. S Crutcher 16Mr Kinney considered the evidence and found the allegations to be substantiated. The investigation report dated 16 February 2011 was forwarded to RailCorp's Disciplinary Review Panel ("DRP") for consideration (Exhibit 1-E). 17On 28 February 2011 the DRP considered the allegations against Mr Cruther, the investigation report finding, and made a preliminary recommendation that he be dismissed. 18Mr Crutcher was advised of the preliminary view of the DRP by letter dated 4 March 2011 and given the opportunity to make a submission regarding the proposed outcome within fourteen days (Exhibit 1-F). 19Mr Crutcher responded by email on the 14 March 2011 (Exhibi1-G) in which he indicated relevantly as follows: The deterioration and breakdown of his 14 year defacto relationship, the loss of contact with his 3 children, Family Court proceedings to gain access and the affect this all had on his health resulting in excessive sick leave. Due to this excessive sick leave he was called in for a record of interview with OSM Berry, which resulted in him being place on medical restrictions. He was a very private person and did not inform OSM Berry of the breakdown of his relationship. Due to his "deteriorated mental state his judgement became clouded" and on such days he was unable to get out of bed or unable to make an appointment due to the doctor's unavailability. Towards the end of 2009 he had a mental breakdown which led to more absences. He was called in for another record of interview and placed on further medical restrictions. He still did not inform OSM Berry of his circumstances but OSM Berry detected that he was suffering and told him that he would support his sick leave absences on the condition that he informed him that his absences were related to his problems and provide medical certificates for the absences. He copied the medical certificates to satisfy the agreement between himself and OSM Berry and not to gain financial advantage. His actions were caused by his extreme depression and he understood he should have acknowledged he needed help. His actions were out of character and his previous good record should be taken into account. Assurance were given that there would be no repeat of his actions. He now realised what a disease depression was and now had now sought assistance (EAP counselling, support of friends, medication). 20On 28 March 2011, the DRP considered Mr Crutcher's response, confirmed its preliminary recommendation to dismiss him and advised him by letter of 1 April 2011 that he was dismissed, effective 5 April 2011, (Exhibit 1- HI). 21On 19 April 2011, Mr Crutcher filed an appeal against his dismissal. 22On 4 May 2011, Mr Crutcher's Solicitors, Riviere Law, wrote to RailCorp seeking a reconsideration by RailCorp of its decision to dismiss Mr Crutcher on the basis of Mr Crutcher's circumstances as detailed in his responses to Railcorp and re-iterated in the letter, and also attaching copies of reports from a Clinical Psychologist (Mr Cooke of Coastwide Psychology and Counselling) dated 18 April 2011 and 7 May 2011 (Exhibit 1-JK). The 7 May report was an addendum to that of the 18 April and set out the Treatment Plan considered appropriate (ongoing case management and supervision by his treating GP, on-going psychological treatment, and actively seeking work). 23In the 4 page, 18 April Report, the Clinical Psychologist Mr Cooke advised, under the heading 'Formulation and Diagnosis', that Mr Crutcher had been referred to him for treatment by his doctor (Dr Nakhla) for "current Mixed Anxiety and Depression, Adjustment Disorder and Situational Crisis. He acknowledged that as he had not seen Mr Crutcher at the relevant time in 2009/10 he was unable to provide a first hand opinion. He went on to state: However given his reported situation and symptoms, a diagnosis of Severe Major Depressive Disorder and Generalised Anxiety would be consistent and highly probable. This is further evidenced by the fact that his doctor, Dr Raza, reportedly did diagnose, treat and medicate him for this. His unwitting actions however in ceasing his medication, as well as apparently not receiving any psychological treatment during the same period, would have likely deepened his depression, fear, anxiety and stress significantly, and then compounded it with fears in relation to the medical certificates. Yet the latter appeared offset by the critical need to maintain a job and income at any cost, just to survive his high legal debts and sustain a new relationship and minimalist lifestyle. Reportedly, he was also in a significant state of frustration, bereavement and loss in relation to his children in particular - and this is current and ongoing - as well as some shock and bewilderment as to how and why an AVO was able to be imposed when he believed there was no necessary or sufficient basis for it. These factors therefore my opinion, would have played a significant role in creating suicidal ideation, highly distorted thinking and strong negative beliefs that he was otherwise helpless, and his situation was otherwise hopeless. Further, he had no psychological management or therapy to otherwise process or offset this, which I suggest is a very critical factor given the very critical time and events that he was experiencing. Thus he was in a suicidal and depressive quagmire and sufficiently desperate and blinded by significant stress and fear that his actions in relation to the medical certificates were seen as his only way out. This was the case when he reportedly could not obtain certificates as quickly as needed and demanded by his employer, but not available due to his then doctor's unavailability and thus through no fault of his own. Thus I suggest he was not fully cognisant of the true implications of his actions, and driven by their simple, but very powerful, survival thinking. In terms of present psychological status, he currently reports ongoing and significant symptoms of Major Depressive Disorder, Generalised Anxiety Disorder, and Panic Disorder with Agoraphobia. His presentation and mood support this, and psychological symptoms will now likely increase given his being terminated from is (sic) job, facing further legal expenses, and a highly uncertain future. The Clinical Psychologist then made a formal diagnosis in relation to the symptomatology referred to above in accordance with the Axis scale. He concluded by indicating that the 'Treatment Plan" would presumably continue, with anti-depressant and anti-anxiety medication prescribed and ongoing psychological therapy including Cognitive Behavioural Therapy (CBT) for depression and anxiety, panic disorder with agoraphobia, bereavement and loss therapy with Systemic Family therapy included as appropriate. 24On 31 May 2010 in the Wyong Local Court, Magistrate Walsh heard the charges against Mr Crutcher and issued an Order under s.32(3)(a)of the Mental Health (Forensic Provisions) Act 1990 dismissing all charges and discharging Mr Crutcher into "the care of a responsible person" subject to "taking prescribed medication/attend counselling/treatment in accordance with medical advice of Dr Makla(sic) or such other doctor at the Wyong Family Practice" (Exhibit 3). 25In the Reason for the Order, Magistrate Walsh stated as follows: "it appears is to me (a) that the accused person is developmentally disabled, is suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007 AND (b) that on an outline of the facts alleged in the proceedings or such other evidence as I consider relevant, it would be more appropriate to deal with the Accused Person in accordance with the provisions of Part 3 of the Mental Health (Forensic Provisions) Act 1990 than otherwise in accordance with the law." Issue(s) Mr Crutcher pleaded not guilty and challenged the decision to dismiss him from his employment with RailCorp. Respondent's Case 26RaiCorp made oral submissions in addition to the written submissions as filed (Exhibit 1). 27It was submitted that Mr Crutcher had breached RailCorp's Code of Conduct; he had been briefed on the Code on 4 separate occasions (31/03/06, 20/10/06, 19/05/10, and 22/02/11) and therefore knew or ought to have known of his responsibilities under the Code; he admitted the allegations were true and amounted to breaches of the Code and requested consideration be given to his personal circumstances . 28Mr Crutcher submitted that he experienced personal difficulties arising from the breakdown of a relationship from February 2009 onwards with his difficulties continuing throughout 2009 and culminating in a "full mental breakdown" in December 2009. He had provided no medical reports to RailCorp throughout the disciplinary process to support his evidence in this regard. The first and only medical reports provided by him were received by RailCorp on 4 May 2011 - after his dismissal on 5 April 2011 - so they were not able to be taken into consideration in relation to his dismissal. Those medical reports comprised two psychological reports from Dr Arthur D Cooke dated 18 April and 7 May 2011. Mr Crutcher first saw Dr Cooke on 6 April 2011 (the day after his dismissal) at which time, he gave a history of depressive and anxious behaviour commencing in February 2009. Dr Cooke correctly reported that, having not seen Mr Crutcher in December 2009 or 2010, he was unable to provide an opinion in relation to his health at that time. 29It was therefore submitted that there was insufficient evidence regarding Mr Crutcher's personal difficulties and his health and wellbeing at the time in question, to sufficiently relate to and/or mitigate the seriousness of his actions. 30Mr Crutcher claimed that he was instructed to provide medical certificates for his absences and that he "panicked" and did the only thing he thought he could and that was to provide false medical certificates. It was submitted that this description of his actions as "panicked" should not be accepted by the Board. 31Mr Crutcher had an extensive history of absence issues, which pre-date his personal difficulties as described throughout February to December 2009. OSM Berry placed the Appellant on an Attendance Management Plan on 21 August 2008. On that date, a meeting was held to discuss his unplanned absences from September 2007 to August 2008 but no explanation for his absences was given and OSM Beryy was required him to improve his attendance and supply a medical certificate for all unplanned leave. Mr Crutcher improved his attendance between August 2008 and January 2009 and a Record of Interview dated 12 January 2009 records that improvement. However over the following eight months, his attendance again declined and a counselling session was held on 11 August 2009, during which he stated that he had "nothing to say" about his poor attendance. He was again required to improve his attendance and provide medical certificates for all unplanned leave. 32It was submitted that this history demonstrated that Mr Crutcher was familiar with absence management processes and had been advised of what was required of him in terms of the provision of medical certificates for absences on a number of occasions from August 2008 onwards. 33Mr Crutcher supplied six medical certificates to OSM Berry on 26 August 2010 and this caused OSM Berry to review his sick leave records and as a result, nine fraudulent medical certificates (and corresponding sick leave applications) were identified. It was clear, therefore, that August 2010 was not the first time Mr Crutcher had created and submitted fraudulent medical certificates to RailCorp. 34RailCorp did not know when Mr Crutcher had submitted fraudulent medical certificates to RailCorp prior to August 2010, but having regard to the varied dates on the fraudulent medical certificates (see Background and Chronology above) it was possible that he did so some time throughout an 11 month period from October 2009 to August 2010. 35Mr Crutcher was treated by Dr Raza from 18 November 2009. He also saw Dr Raza in February, April and May 2010, for which Dr Raza provided authentic medical certificates. The nine fraudulent medical certificates (purporting to be from Dr Raza) were identified by RailCorp (with the assistance of Dr Raza) in August 2010 and relate to 9 separate occasions (see Background and Chronology above). 36Having regard to this, it was submitted that the suggestion that Mr Crutcher "panicked" in or around August 2010 and on at least one prior occasion (sometime in the previous 11 months) and created fraudulent medical certificates on more than one occasion, could not reasonably be accepted. 37It was submitted that the circumstances on which Mr Crutcher sought to rely as his reasons for his actions did not correspond with the evidence and were insufficient to mitigate the serious nature of his misconduct. 38It was submitted that RailCorp had 17, 000 employees and some of those employees would suffer difficulties and may also have Attendance Management Programs in place. Mr Crutcher would have been aware he could access other forms of leave and did not do so. 39It was submitted that Mr Crutcher's misconduct was serious. He created nine fraudulent medical certificates and submitted them to RailCorp accompanied by applications for sick leave containing false and misleading information. The false applications and fraudulent medical certificates resulted in financial gain to him, being $2086.00 in sick leave payments. 40Mr Crutcher had submitted that he did not create the fraudulent medical certificates for financial gain, but this should be questioned. Regardless of his reason/s for his excessive absences, it was at all times open for him to take annual leave or to request unpaid leave, if he believed that he had exhausted his available annual and sick leave allowances, or he felt that it was too difficult for him to obtain medical certificates. The evidence was that his manager, OSM Berry had reasonably accommodated him for a number of years and had been understanding in his management of the his absences over time. 41Mr Crutcher committed criminal offences for which he was charged by the NSW Police relating to fraud in respect of his actions as set out in the allegations. He pleaded guilty to all charges on 31 May 2011 and made application under s.32 of the Mental Health Act which resulted in the charges being dismissed on conditions that he take prescribed medication, attend counselling and attend treatment in accordance with the medical advice of Dr Nakhla (or other such doctor at the Wyong Family Practice). 42RailCorp was not privy to the medical evidence that lead to Mr Crutcher's successful application under section 32 of the Mental Health Act . In particular, RailCorp had to date, not seen any medical reports from Dr Nakhla or the Wyong Family Practice. 43It was submitted that the medical evidence currently before the Board was insufficient to mitigate Mr Crutcher's actions in creating fraudulent medical certificates and providing misleading leave applications in August 2010. If he sought to rely on the reports of Dr Cooke, which post-date his misconduct, then RailCorp would require Dr Cooke to attend the hearing of this matter for cross examination. 44It was submitted that in the overall circumstances, Mr Crutcher's misconduct was serious, and could not be sufficiently mitigated by the matters on which he sought to rely. Dismissal was the appropriate penalty. 45In conclusion RailCorp maintained that Mr Crutcher had committed serious breaches of the Code for which dismissal was appropriate. The Board should not allow Mr Crutcher's appeal. Appellant's Case 46The Rail Bus & Tram Union (RTBU) made oral submissions on behalf of Mr Crutcher in addition to the written submissions as filed (Exhibit 2) 47It was submitted that Mr Crutcher commenced with RailCorp in 1997 as Station Assistant , had also operated as a Customer Service Attendant and at the time of his dismissal was empl o yed as a Train Guard. He had an excellent employment record over his 14 years as a diligent employee. 48It was submitted that Mr Crutcher d id not deny that the Medical Certificates , the subject of the allegations, were falsified. He had pleaded guilty to all allegations and there was no attempt to cover up his actions. He had complied with the investigation conducted. 49Mr Crutcher did h owever have several very strong mitigating factors that should have been considered at the time of his dismissal. he had been diagnosed with significant mental health issues and ha d been suffering from December 2009. In his letter to Mr Kinney on 4 November 2010 he detailed his extensive person problems, relationship breakdowns and financial issues that led him to a nervous breakdown. 50It was submitted that g iven Mr Crutcher ' s significant mental health issues during that period it was apparent that had he seen his Medical Practitioner at the time he would have been given medical certificates with little problem. In fact in his correspondence to Mr Kinney, Mr Crutcher point ed out that it was the debilitating nature of his illness that prevented him from being able to 'get himself out of bed' to actually obtain the certificates. 51It was submitted that s ince these events Mr Crutcher ha d continued to deal with his depression and ha d continued with his rehabilitation. 52It was submitted that Mr Crutcher ha d also faced criminal charges in this matter which were dealt with in accordance with the Mental Health Act and the charge s had been dismissed by the Wyong Magistrates Court. 53The RTBU relied on the statement filed by Mr Crutcher (Exhibit 3) as well as his letter to Mr Kinney of 4 November 2010. 54Mr Crutcher's medical evidence was also submitted as well as further documents which related to the criminal charges dealt with by the Wyong Magistrates court. 55The RTBU submitted that the penalty of dismissal was too harsh in all the circumstances and sought that the Board allow Mr Crutcher's appeal and reinstate him to his former position as a Train Guard. 56In response to questions from the Board, the RTBU and Mr Crutcher indicated that they would be prepared to accept an alternative penalty being imposed by the Board and submitted that a two week suspension from pay would be appropriate. Evidence 57RailCorp relied on statements by Mr Kinney (Exhibit 1-B) and Mr Chris Berry (Exhibit 1-E7). Neither person was required for cross examination. Their relevant evidence is substantially replicated in the Background and Chronology above. 58Mr Crutcher gave oral evidence in addition to his witness statement as filed (Exhibit 3). 59Mr Crutcher said that he had no previous disciplinary history with RailCorp in his 14 years of service. 60Mr Crutcher did not deny the 16 allegations of providing false and misleading information to RailCorp and stated that he understand that his actions were a breach of the RailCorp Code of Conduct . 61He asked that mitigating circumstances that were at play during the course of the relevant period be taken into account. Those circumstances included the break down of his relationship with his de-facto partner which began in February 2009, but there had been a lengthy period through 2008 preceding the break up. He moved out of the family home in October 2009. He lost his 3 children in the subsequent Family Court proceedings as well as the subsequently loosing his house. He had lost everything. He had also had additional stress when his ex-partner took out an AVO against him that was unnecessary. In November 2009 his ex-partner stopped him having access to his children and he had go back to the Family Court. He now had little contact with them and no contact with his eldest child. 62He stated that these personal losses affected him deeply and in the end caused him to have a psychotic episode in the form of a full mental breakdown and subsequent depression in December 2009. When he had his breakdown he was driving in his car and had to pull over and stop and call for his family to come and get him as he had broken down in tears and was incapable of driving. Since that time he had been on anti-depressants and from December 2009 his mental and physical health declined significantly. His GP did refer him to a Psychologist at the time but he conceded that he made no appointment as this was at a difficult time of the year around Christmas. 63He stated that his local Manager, Mr Berry, placed him on Medical Restrictions as a result of this decline and his increased use of personal leave. The effect of this was that he was now required to provide medical evidence in the form of doctor's certificates for each absence from work. 64He accepted that he had given a bundle of medical certificates to Mr Berry but said he could not really recall all of the certificates that were involved. He also could not recall abusing Mr Berry at a meeting in August 2009. 65Mr Crutcher accepted that he should have informed RailCorp of his medical status. He also said he did not realise that he could have used other forms of leave at the time. 66He went on to state that during this period it was extremely difficult to get appointments with his doctor and on some occasions he was unable to get out of bed at all due to the weight of his depression. 67Mr Crutcher stated that the need to provide medical certificates at this time caused him to panic and he subsequently provided false medical certificates. However at the time he had many hours of unused sick leave (he said some 500 hours) and had he actually had the physical capacity to go to the doctor he was certain that he would have been granted a medical certificate. 68Mr Crutcher stated that he had no intention to defraud RailCorp he simply needed a way to comply with their rules even though he was physically unable to do so. He understand that his actions at the time were wrong and he am very sorry for the additional pain he have caused both myself and RailCorp. 69Mr Crutcher stated that he was certain that his continued progress with his treating Psychologist and the medication he was taking to treat his illness were having a positive affect. He had initially been required to attend the Psychologist on a weekly basis, that then moved to a fortnightly basis and his improvement was such that the Psychologist had told him to come every three weeks. He was also undertaking exercise and was taking his prescribed medication for depression. 70Mr Crutcher also sought that his statement be read in conjunction with his letter of 21 october 2010 to Mr Kinney, as he felt that the detail contained in that letter provided a full overview of his emotional state at the time of the events. 71In conclusion Mr Crutcher stated that he also very much enjoyed his job and that to an extent it was the only item of value left in his life. He felt that that he would be a valued member of RailCorp in the future and asked the Board to be allowed to return to his substantive role. Findings 72This is an appeal under clause 43 of the Transport Administration (Staff) Regulation 2005 against RailCorp's decision to impose the punishment of dismissal on Mr Crutcher. 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. 73Despite the plea of 'Not Guilty' on his Notice of Appeal, Mr Crutcher does not dispute the findings of misconduct made against him by RailCorp in relation to the fraudulent applications for sick leave and the fraudulent medical certificates provide. However Mr Crutcher does disputes the decision of RailCorp 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 (1938) 60 CLR 336. 74The Board found Mr Crutcher to be a truthful witness and accepts his evidence. There is no dispute as to the written evidence tendered by RailCorp and that evidence is also accepted. 75This is a very unfortunate matter. An employee with a 14 year unblemished record with RailCorp has clearly done the wrong thing and committed misconduct (of a very serious nature) but has done so as a result of the most unfortunate personal and family circumstances that unfolded with increasingly serious and devastating consequences in his life and which ultimately had a severe and deleterious impact on his mental health. 76The Board accepts and finds that at the time of committing the misconduct that Mr Crutcher had mental health issues in the form of depression and as such his judgement was not only impaired but he was unable to get out of bed to visit his doctor to obtain a medical certificate. The Board accepts that he was certainly unfit for work on those days. 77The Board also accepts and finds that Mr Crutcher did, in fact, have sick leave hours accrued that he could have availed himself of at the time in question and has no doubt whatsoever that if he had been able to get to his doctor he would have been issued with an appropriate medical certificate. 78The Board further considers that Mr Crutcher was not motivated by financial gain in falsifying the applications for sick leave and the medical certificates but by fear of losing his job, all that was left to him. 79It is extremely unfortunate that RailCorp does not appear to have given any credence whatsoever to Mr Crutcher's unfortunate circumstances and his mental health condition, some detail of which was conveyed to Mr Kinney in October 2010 (by way of medical certificate attesting to the fact that he was suffering from Depression), and he gave much more background and detail to RailCorp in response to its 'show cause' letter in March 2011. 80The Board would have thought that if RailCorp doubted the veracity of what Mr Crutcher was raising in mitigation, then it would have been entirely appropriate, and well within its managerial prerogative, to require Mr Crutcher to undergo medical assessment. Instead the entire matter has been approached from a purely black and white, cut and dried perspective when that was far, far from the case. This was subsequently borne out , in the Board's view, by the decision of Magistrate Walsh in the Local Court on 31 May 2011. 81Effectively RailCorp has punished Mr Crutcher for being mentally ill, the Board finds that unsupportable in all the circumstances and considers that the penalty of dismissal also in all the circumstances was too severe. 82The Board considers that there can be no doubt that there is now widespread acceptance and acknowledgement in the community, and the media, about depression as a form of mental illness, its identifiable symptomatolgy (with both physical and psychological effects) and the significant impacts it can have, not only on the sufferer, but on the lives of those around such a person. 83The Board also notes that the criminal charges against Mr Crutcher were dismissed in the Local Court (where the higher standard of 'beyond reasonable doubt' applies) on the basis of his mental condition at the time, as set out in the Reason for the Orders issued by the Magistrate under the Mental Health Act. He is complying with the Order issues undertaking regular counselling and is continuing his medication. 84The Board has taken into account the following very relevant issues in considering Mr Crutcher's appeal: He had a 14 year unblemished work record (the Board notes the formal written warning issued to him as a result of his meeting with Mr Berry in August 2009 however this does not appear on his Disciplinary History as tendered by RailCorp); No issues were raised about his work performance; He was suffering from what was clearly severe and debilitating depression at the time of the offences; He had sick leave accumulated that could have been taken and he undoubtedly would have been able to obtain medical certificates if he had been able to attend his doctor. He admitted his wrongdoing at all stages, and has expressed remorse for such and; He pleaded guilty to the charges against him in the Local Court on 31 May 2011 and those charges were dismissed due to his mental condition (subject to conditions as set out in the Background and Chronology above). He is maintaining his counselling and medication regime in accordance with the Order of the Local Court and is seeking to rehabilitate himself. 85The Board considers that dismissal of Mr Crutcher, when all of the circumstances of this matter are considered, was entirely disproportionate to the misconduct committed, notwithstanding the seriousness of that misconduct. A suspension without pay for four weeks is, in the Board's opinion, the appropriate punishment to impose on Mr Cruthcher for his misconduct under clause 37 of the Regulation. 86RailCorp's decision to dismiss Mr Crutcher effective from the 5 April 2011 will be set aside and Mr Crutcher 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) 87The Board makes the following orders in relation to the appeal (TAB 965 of 2011): (1)The appeal is allowed; (2)The decision of RailCorp to dismiss Stephen Crutcher with effect from 5 April 2011 is set aside and he is reinstated to his position of Train Guard without loss of continuity; (3)Mr Crutcher is suspended without pay for the period from 5 April 2011 to 3 May 2011 (inclusive); and (4)RailCorp is to make a payment within 14 days of the date of this decision to Mr Crutcher of the amount of pay he would have received as a Train Guard (on a master roster basis), from 5 April 2011 to the date of this decision, but for RailCorp's decision to dismiss him. Elizabeth Bishop 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: 25 August 2011