Walker and RailCorp [2011]NSWTAB [2011] NSWTAB 16

Transport Appeal Boards New South Wales Medium Neutral Citation: Walker and RailCorp [2011]NSWTAB [2011] NSWTAB 16 Hearing dates: 18 July 2011 Decision date: 26 August 2011 Before: Macdonald C (Board) Decision: (1) The appeal is allowed (2) The decision of RailCorp to dismiss Mr Walker is set aside and he is reinstated to the position of Train Driver with date of effect of 4 May 2011. (3) The continuity of Ian Walker's employment with RailCorp is taken not to have been broken by the decision of RailCorp to dismiss Ian Walker. Catchwords: PUBLIC SERVICE - RailCorp - employee engaged as Train Driver - incident at Bomaderry Railway Station - derailment of train KN70 as it came out of siding/refuelling road - investigation - Train Driver stated he had "all clear" in advance from Duty Manager to come out of siding when ready - Duty Manager denied giving any signal, in advance or otherwise, to Train Driver - evidence as to correct procedure for exiting a siding - evidence as to practice at Bomaderry for exiting siding - HELD: Board finding of different practice at Bomaderry - Train Driver was given "all clear" in advance by Duty Manager - Train Driver reinstated to former position. Legislation Cited: Transport Appeal Boards Act 1980 Category: Principal judgment Parties: Ian Walker (Appellant)

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

Ms M Robinson Rail Corporation of NSW (Respondent) File Number(s): TAB 1008 of 2011

DECISION

Introduction 1Ian Walker (the appellant) commenced employment in 1986 with the Rail Corporation of NSW ("RailCorp") which was then known as the State Rail Authority. He began as a trainee engineman and progressed to engineman, assistant train driver and train driver. He was transferred in 2003 to Wollongong depot. He was a train driver at the time of his dismissal. He was dismissed on 4 May 2011, arising out of an incident at Bomaderry railway station on 30 August 2010. Ian Walker has appealed that dismissal to the Transport Appeal Board ("the TAB").