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"). BACKGROUND 2On 30 August 2010, Ian Walker was the train driver on train KN41 on its journey to Bomaderry station. The train guard on KN41 was Belinda Parsons. 3KN41 pulled into Bomaderry railway station on that day and disgorged its passengers. The train was checked to ensure all passengers had alighted. 4A signal was then given for the train to proceed to a siding, just past Bomaderry station which is a terminal station. The siding is otherwise called a fuelling road where the train is serviced (provided with diesel fuel and the toilets are decanted). In order to proceed down the fuelling road, a station attendant throws a lever which switches the railway track from a straight ahead track to a veering off to the side track (fuelling road). 5Walker drove the train down the fuelling road and in doing so, the train passed completely over another set of switching points, which operate in tandem with the first lot of switching points described above. When KN41 came to a halt, the switch points were changed back. This meant that if another train came into the station and proceeded just beyond the railway station, it would do so in a straight line. It would not proceed down the fuelling road. The switching back (after a train has gone down the fuelling road) is to ensure that another train does not go down the fuelling road as well. 6Walker and Parsons later took a short walk back to the railway station for their meal break - after the refuelling, decanting and securing of the train had occurred. When eventually the train was to depart for its outward bound trip, it would do so as KN70. 7At the meal room, Walker realised that he had left his cutlery in his bag on the train. He walked back to the train. Walker deposed that on returning to the train, he noticed the weather was overcast. He decided to bring KN70 back to the railway station as it was tabled to depart in about twenty minutes. He checked that the train was clear of any hoses and that the cleaner had finished. 8Up in the cabin of KN70, he moved the train forward but felt the train suddenly drop on the left hand side. He applied the emergency brakes and secured the train. 9On alighting, he observed that the train's front bogie had come off the track through the switch points (catch points). The train had been derailed. 10He returned to the station and informed the Duty Manager (next graded level down from Station Manager) of the derailment. 11A disciplinary investigation was conducted and a letter of allegation was sent to the appellant on 6 January 2011. The allegation was that he had breached the RailCorp Code of Conduct by engaging in unacceptable behaviour. The appellant was invited to provide a response to the allegation. He provide a written response dated 23 January 2011 and accepted the investigator's invitation to attend a disciplinary interview on 10 February 2011. 12The investigation resulted in findings that the allegation was substantiated. On 11 March 2011 the investigation report was forwarded to the Disciplinary Review Panel ("the DRP"). 13On 28 March 2011 the Disciplinary Review Panel reviewed the evidence in relation to the allegation. The DRP made a preliminary recommendation that the appellant should be dismissed. 14On 4 April 2011 Judith Sturman, General Manager Customer Service - Illawarra, wrote to the appellant advising him that, on a preliminary view, it was appropriate that he be dismissed. In the letter, the appellant was given fourteen days to make submissions in regard to penalty and to submit any further information or material that the appellant may wish to have taken into account. The appellant provided a response dated 18 April 2011. 15On 3 May 2011, the DRP reconsidered the matter and confirmed their recommendation of dismissal. On 4 May 2011 Ms Sturman signed a letter confirming that the appellant was dismissed effective 4 May 2011. APPEAL PROCEEDINGS - TRANSPORT APPEAL BOARD 16Mr Ian Walker appealed his dismissal by lodging a Notice of Appeal - Transport Discipline. It was filed on 5 May 2011. He pleaded "Guilty". 17His appeal application was set down for conciliation before Acting Commissioner Oakman of the TAB on 27 May 2011. That conciliation was unsuccessful and the matter was programmed for a Hearing before myself, Macdonald C, of the TAB. 18The Hearing took place on 18 July 2011. 19RailCorp was represented by Ms M Robinson. 20The appellant was represented by Mr M Cartwright of the Rail, Tram and Bus Union ("the union"). 21RailCorp presented its case first in accordance with section 16(1) of the Transport Appeal Boards Act 1980 ("the TAB Act"). RailCorp's tendered material included: * Respondent's Written Case * Statement of Danielle Heatly dated 16 June 2011 * Referral from Mr Ricky Anderson, Deputy Regional Crewing Manager * Incident Information Management System (IIMS) Report number 00097 * RailCorp Safety Report regarding derailment * Letter of allegation dated 10 January 2011 * Written response of Mr Walker dated 24 January 2011 * Invitation to Formal Interview dated 1 February 2011 * Transcript of Formal Interview dated 10 February 2011 * Ellipse Personal History Report in respect of Mr Walker * Management record from TCTime for Mr Walker * Mr Walker's disciplinary history * Mr Walker's Diagram for 30 August 2010 * Closed Circuit Television (CCTV) Footage - Bomaderry Station dated 30 August 2010 * Photographs of derailment and Bomaderry Station * Ms Parsons provided a Debrief dated 6 September 2010 * Statement - Ms Parsons * Emails regarding Mr Salisbury taking twelve months leave without pay * Emails from Mr Salisbury dated 2 March 2011 * RailCorp Code of Conduct * OSP 16 and NTR 418 * Email from Mr Anderson dated 3 March 2011 * Report from SOS Mr Cooper dated 8 February 2011 * Report from OSM Mr McEvoy dated 16 February 2011 * Report from OSM Mr McEvoy dated 22 February 2011 * Facsimile from Mr Walker regarding IIMS Number 3 dated 4 January 2003 * Preliminary recommendation letter from Judith Sturman, General Manager Customer Service Illawarra dated 4 April 2011 * Appellant's response dated 18 April 2011 * Reference from John McKinnon dated 19 April 2011 * Memorandum of Danielle Heatly dated 27 April 2011 * Dismissal letter from Judith Sturman, General Manager Customer Service Illawarra dated 4 May 2011 22The appellant's case included: * Statement of Ian Walker dated 1 July 2011 * Statement of Daniel Carney dated 6 July 2011 23The appellant and Mr Carney also gave evidence in the proceedings. 24The appellant gave notice to RailCorp that he wished to cross-examine Belinda Parsons who gave a statement dated 25 January 2011 during the investigation into the derailment. FINAL SUBMISSIONS For RailCorp 25Ms Robinson in final submissions, for RailCorp, put the following in support of the decision to dismiss the appellant: (a) There is a correct procedure for a train driver and train guard to follow, when bringing a train out of a siding. This correct procedure is that the train is not brought out until a go-ahead signal is given by a station attendant. (b) Evidence was given by three witnesses (Walker, Carney and Parsons) of the usual but incorrect procedure at Bomaderry - that is, they said station staff do not give a physical right of way before the train moves out of the refuelling road/siding in order to return to the station platform. (c) However, the evidence of these three witnesses differed as to how each is advised or becomes aware that the train can be brought out of the siding. The appellant, in particular, said he would be given a verbal okay (right of way) signal for bringing the train out and this would be given to him whilst the train was still at the station and had not yet moved into the siding. This verbal signal would thus be given some one hour before he brought the train out of the siding (after refuelling, toilet decanting and cleaning). It was submitted that this reasoning was illogical/implausible. This was because it required the Duty Manager to firstly, switch the points to allow KN41 to move into the siding; secondly, required the Duty Manager to switch the points back for the next train service and thirdly, required the Duty Manager to switch the points back after that next train service has departed, in order to allow KN70 to come out of the siding and back to Bomaderry station. (d) The Duty Manager, Mr Salisbury, during the investigation, denied he had given a verbal okay to the appellant to bring the train out of the siding and given that verbal okay some one hour beforehand when KN41 first arrived at the station to disgorge its passengers. (e) Both the appellant and the train guard (Parsons) should have been more diligent and checked with the Duty Manager that he had switched the points in order to allow KN70 to come out of the siding. It was submitted that Parsons knew that the appellant had left the meal room in order to bring KN70 out of the siding. (f) The appellant had not only not checked with the Duty Manager that the points had been switched, but, as well, he had not checked the two switch points whilst walking back to the train: one switch point is near the end of the platform and the second switch point is very close to or just under the leading edge of the front of the train. The front of the train is facing the station. (g) The appellant's failure to check the switch points (catchpoints) was a major contributing factor to the derailment. (h) The appellant failed to have his guard with him when he moved the train. (i) The appellant was an experienced driver and can not claim ignorance of the correct procedure for exiting a siding. (j) The appellant has a lengthy discipline history with several incidents on his driving record. For the Appellant 26Mr Cartwright from the union, put the following points that the dismissal of the appellant was unfair: (a) There was a practice at Bomaderry railway station for a different train to KN70 to depart the refuelling road/siding, without a hand signal from a station attendant. That train was called KN39 as the incoming train and KN62 as the outgoing train. RailCorp was aware of this practice. The appellant had carried out this same practice for KN70 (no hand signal from a station attendant to okay the return to the platform). (b) Following the derailment of KN70, RailCorp has introduced a new procedure for coming out of the siding at Bomaderry: firstly, the train guard must be on the train; secondly, the driver will either get a hand signal from the Duty Manager to depart the siding or if the Duty Manager is not on the platform to give the signal, then the train crew will receive a radio call giving an update as to the train's departure from the siding. (c) For the derailment in question, the Duty Manager had given the verbal okay to the appellant to bring KN70 out of its siding, once the appropriate services had been carried out. (d) Train guard Parsons gave evidence that it is normal practice for the train to depart the refuelling road at Bomaderry without the guard and also without a hand signal from the Duty Manager or station assistant. This had been the practice, she said, for her five years she had worked at Bomaderry station. (e) Daniel Carney, a former train driver from Wollongong, gave evidence that it was the normal practice at Bomaderry not to receive a hand signal to depart the refuelling road. Further, he said that drivers would be told to depart the siding when finished with the provision of services to the train. (f) The appellant merely practised at Bomaderry what other crew had done in the past. (g) The appellant admitted he did not follow RailCorp's procedure but his punishment from RailCorp should have been less than dismissal. (h) The appellant sought reinstatement. CONSIDERATION 27The appellant was dismissed by letter of 4 May 2011, following a Disciplinary Investigation, which found the allegation against the appellant substantiated. The allegation is that the appellant breached the RailCorp Code of Conduct by engaging in unacceptable behaviour. The particulars of the allegation are: * At or about 1640 hrs, on Monday, 30 August 2010, at Bomaderry Station, you boarded train KN70 and applied power sufficient to shunt the train toward the platform. * Train KN70 began to move forward and has derailed due to frame "B" catchpoints being in the open position. * You failed to receive any authority to move KN70. * You also failed to operate the train without a guard or shunter. 28The foregoing particulars boil down to two issues: (a) the appellant failed to receive any authority (from the Duty Manager, Salisbury) to move KN70 from the refuelling road back to the platform; and (b) the appellant operated the train without a guard or shunter. No Authority to Move KN70 29RailCorp's case against the appellant is that the appellant had not received authority from the Duty Manager (Salisbury) at Bomaderry Station to move KN70 from the refuelling road back to the platform. 30The appellant's case is that he did have the authority of the Duty Manager to move KN70 back to the platform. 31There is a conflict then in the evidence before the TAB, as to whether the appellant was given (as he claimed) the "all clear" by the Duty Manager, Salisbury, to bring KN70 back to the platform and that this "all clear" signal was given by Salisbury to the appellant just before he took the train to the refuelling road. 32In assessing and deciding on that conflict in the evidence, the Board would usually expect to have both witnesses appear in the witness box and be subject to cross-examination and at the same time be subject to observation by the TAB member as to his/her demeanour in the witness box. 33The TAB had the benefit of observing the appellant in the witness and listening to his evidence, especially when being cross-examined. But there was no appearance by the Duty Manager, Mathew Salisbury, who at the time of the appeal proceeding, was residing in the United States of America. 34The TAB is unable to ascertain from the file as to whether the union gave notice, per Practice Direction No 22, that it required the attendance of Matthew Salisbury to give evidence. If the union gave such notice and Matthew Salisbury did not attend, then the TAB might be asked by the union to draw an adverse inference as to that non-attendance - that is the union might ask the TAB to find that Mr Salisbury was not prepared to say in the witness box what he has said outside of the witness box as to the appellant's claim that Salisbury gave the appellant the all clear (right of way) before taking the train to the refuelling road. 35As the TAB can not ascertain if the union gave notice that it required Mr Salisbury's attendance, then the TAB will assess and determine this conflict in the evidence on the basis that the appellant gave evidence in the witness box and Matthew Salisbury did not but there is some documentary material submitted by Mr Salisbury on this contentious issue and that documentary material will be considered by the TAB. 36Having said that, there is still the question as to what weight is to be given by the TAB to this documentary material. This material comprises email correspondence between RailCorp and Matthew Salisbury who at the time of the email correspondence was (and remains) overseas. (Ex 1, Annex 16 & 17) One lot of email correspondence poses sixteen questions to Salisbury who responds to each question. Relevantly, he denies giving authority to move the train out of the refuelling road before it proceeded to the refuelling road. 37In this case, there are two means available to the TAB, for resolving this conflicting evidence. One is the evidence and demeanour of the appellant and the other is the relevant evidence of two other witnesses (Carney and Parsons). 38The appellant maintained his claim, under cross-examination, that he had been given the "all clear" by Salisbury to bring the train back, after refuelling, and had been given this all clear prior to proceeding down the refuelling road. He said that being given the "all clear", before going down to the refuelling road, was the "usual procedure". (Tr 46, line 39-41) 39When it was put to him directly that Matthew Salisbury denied giving that "all clear", the appellant responded, "That's a lie". Asked why would Salisbury lie, the appellant responded, "I don't know. To cover himself I guess". Asked what is there to cover, the appellant responded, "His job. He's still officially employed by RailCorp, he's only on extended leave at the moment". (Tr 52, line 44 to Tr 53, line 9) This response could not be put to Salisbury for comment because he did not appear in court. The TAB is not able to give any weight to this response. For the record, an email exists that says Salisbury is in the USA with his wife who is a US citizen. He is seeking an extended leave of absence "to allow him to be retained with CityRail until July 2012" (Ex 1, Annex 16) 40As to his demeanour, the appellant did not come across as an untruthful witness. He was cross-examined on his truthfulness and admitted to not answering truthfully to a question during his Record of Interview. He explained that lack of truthfulness during the Record of Interview as not wanting to "admit to mistakes". (Tr 46, line 39 to Tr 47, line 30) The TAB noted then that the appellant in giving this response, was giving evidence against himself as to his truthfulness on another occasion. In assessing this response, the TAB took the view that the appellant had answered honestly before the TAB. Generally speaking as to his evidence, and having regard to his demeanour, the TAB took the view that the appellant did not come across as an untruthful witness. 41In summary, thus far, as to the conflict in the evidence between the appellant and the documentary evidence of Salisbury, the TAB finds that the evidence of the appellant as to his claim of being given the "all clear" by Salisbury, has not been discredited by cross-examination. 42There is then the evidence of the two other witnesses (Carney and Parsons) on what was the procedure at Bomaderry Station when a train went into the refuelling road and whether there was or was not an "all clear" given before the train went into the refuelling road. 43Daniel Carney retired from his employment with RailCorp in 2009, after 40 years service. He deposed he had worked trains (freight and passenger) in and out of the sidings at Bomaderry and based on that knowledge, said that the Duty Manager would tell the train driver to come out of the refuelling road when he or she had finished refuelling. (Ex 3, para 5) This evidence supports that of the appellant but is limited to a certain situation according to Carney. This "all clear" signal is given by the Duty Manager only when there were no other train movements. That evidence suggests that the "all clear" is only given in advance to a train that is to be refuelled, provided that no other train comes into the platform after the "all clear" is given and before the train comes out of the refuelling road. 44In examination-in-chief, it was not cleared up as to whether Carney's evidence was restricted to the above certain situation given in his witness statement, or whether his evidence as to the Bomaderry practice went broader - that is, the "all clear" was given irrespective of another train entering or not entering the platform after the "all clear" had been given. 45In cross-examination, Carney's evidence was clarified to have a narrow practice interpretation operating at Bomaderry - that is, the "all clear" was given when no other train was due in after the "all clear" was given. However, he gave evidence from his experience (including operating KN70) of a different situation. In that different situation, the Duty Manager would come into the meal room and say to him (as the driver), that it was n ow "all clear" (the points had been switched) to bring the train out of the refuelling road when Carney was ready to do so. That is, the "all clear" was being given in advance by the Duty Manager but after the other train had departed. That "all clear" was given in the situation that is not the same situation/scenario for the appellant before the TAB. (Tr 29, line 30 to 42) 46Carney's evidence supports the proposition that one or more Duty Managers at Bomaderry Station do not always apply RailCorp's rules about giving the "all clear" to a driver waiting to bring his/her train out of the refuelling road. That evidence supports the appellant's case that the "all clear" was given to him in advance but Carney's evidence of non-compliance with RailCorp's rules is restricted to a certain scenario: no other train came into the platform after the "all clear" in advance was given. That scenario is different to the appellant's situation where another train did come into the platform after he says he was given the "all clear" in advance by the Duty Manager. 47The other witness who gave evidence on this issue is the train guard, Belinda Parsons. She had provided a statement (Ex 1, Annex 15) on 25 January 2011, as to the derailment. The union advised she was required to come before the TAB to give evidence. 48Ms Parsons has been in the employ of RailCorp for some fifteen years. Relevantly she has been a train guard for some thirteen years and had worked trains to and from Bomaderry some 100 times in the last five years. 49Her evidence, under cross-examination from the union as to the procedure for refuelling was that the train came into Bomaderry Station - the passengers got off - the train goes down the refuelling road after the catch points have been opened to allow that to happen - the catch points are switched back to the closed position for the next inbound train - when that train departs, the catch points are switched back to the open position - later the train in the fuelling road comes back to the platform and does so without any signal from the Duty Manager. In particular, she said she had never been given a hand signal by Matthew Salisbury to return from the refuelling road to the platform. (Tr 6 to Tr 9) 50During the re-examination by RailCorp, Parsons stated that as soon as the other train leaves the platform, the catch points are switched by hand to the open position to allow (in this case, KN70) to come out of the refuelling road. This practice of immediately switching the check points had always been carried out except for this occasion that then caused the derailment. (Tr 9 to Tr 11, line 28) 51Under questioning from the TAB, Ms Parsons stated again that the catch points are set straight away, after the other train (passenger) departs. Then the train in the refuelling road can come back to the platform. That was just the accepted practice at Bomaderry and had been so for at least the five years she had been working in the area. (Tr 11, line 30 to Tr 15, line 14) 52The evidence of Ms Parsons supports that of the appellant, who said he had been given a prior "all clear" advice by the Duty Manager to return to the platform from the refuelling road after the train had been serviced. She could not give evidence as to the conversation between the appellant and the Duty Manager, Salisbury. However, her evidence as to the practice of no signal being given by the Duty Manager for the train to come out of the refuelling road, is consistent with the appellant's version of the events. That is, the appellant gave evidence that he was given the "all clear" in advance of going down to the refuelling road and therefore no signal was required from the Duty Manager for the return to the platform. 53In considering the evidence of Ms Parsons, the TAB also considered her demeanour when giving evidence. The TAB found her to be a witness who gave her evidence in a matter of fact and honest way. The TAB makes no adverse finding as to her credit. This observation assisted in accepting her evidence as to what had been the practice at Bomaderry Station that is, there had been a long standing practice that the Duty Manager (perhaps others) did not give a signal to the train driver and guard that it was "all clear" to come out of the refuelling road. Summary 54The TAB has been considering the issue as to whether the appellant had been given (as he claimed) advance notice by the Duty Manager, Salisbury, to return from the refuelling road to the platform when ready to do so. RailCorp contends that no such advance notice was given by Salisbury. 55The TAB has decided, having regard to the evidence and the credit of the witnesses, that the appellant was given, on the balance of probabilities, such advance notice by Salisbury. 56As to the credit of the witnesses, the TAB makes no adverse finding. In particular, the TAB relied upon the evidence of the train guard, Belinda Parsons, whose evidence was given in a matter of fact way. 57Parsons' evidence established that there was a long standing practice (some five years) whereby the Duty Manager (and maybe others) immediately set the road (switched the catch points) after the other train had departed the platform. In doing so, this allowed the train in the refuelling road to return to the platform, when ready, without being derailed. This had been the practice over some five years (some 100 times said Parsons) but on this one occasion, the Duty Manager forgot to change the catchpoints and hence, the derailment. 58The evidence of Parsons supports the version of events (advance notice was given by Salisbury to the appellant) given by the appellant. 59The evidence of Carney does not address the particular scenario before the Board: the appellant was given the "all clear" in advance and given that "all clear" before the next train came into the platform. However, his evidence is supportive of the appellant and Parsons that the correct signalling procedure was not applied. The correct procedure is that the station attendant changes the switch points and shortly thereafter signals for the train to come out the refuelling road. No Train Guard or Shunter 60The other issue for which RailCorp found that the appellant had engaged in unacceptable behaviour, and hence a reason for dismissal, is that he brought the train back to the platform from the refuelling road, without a train guard (Belinda Parsons). 61The appellant agreed that he did not have his train guard on board for that return trip. Under cross-examination, he said it was "common practice" not to have the guard on board when returning the train to the platform. (Tr 46, line 39 to Tr 47, line 30) 62It seems to the TAB, that although there has been a breach of RailCorp's Code of Conduct by the appellant, in not having a guard on board, his conduct needs to be seen in context. That context is that there was a long standing practice whereby the Duty Manger (or others) would immediately switch the catch points after the other train had departed in order to necessitate the train's return trip out of the refuelling road to the platform. This long standing practice allowed the appellant to bring the train back to the platform (a very short distance), without the use of a guard - not always but seems on the evidence at least often times. Accordingly, his breach of the Code of Conduct is not viewed by the TAB as demonstrating behaviour warranting dismissal. CONCLUSION 63The appellant was dismissed by letter of 4 May 2011, following a Disciplinary Investigation, which found the allegation against the appellant sustained. The allegation is that the appellant breached the RailCorp Code of Conduct by engaging in unacceptable behaviour. The letter set out the particulars of the allegation. Those particulars boiled down to two issues: (a) the appellant failed to receive any authority (from the Duty Manager, Salisbury) to move KN70 from the refuelling road back to the platform; and (b) the appellant operated the train without a guard or shunter. 64The TAB considered those two issues. As to the allegation that the appellant acted without authority, the TAB held otherwise. It was found, on the balance of probabilities, that the appellant had acted with authority from the Duty Manager in attempting to return KN70 to the platform. 65As to the allegation that the appellant operated the train without a guard, that was conceded by the appellant. The TAB held that the appellant's failure to have a train guard should be seen in context - that is, the appellant had been given the "all clear" in advance by the Duty Manager. Further, the TAB held that the action of the appellant in not having a train guard was accordingly not behaviour warranting dismissal. 66The appellant seeks the remedy of reinstatement. The union did not press for the remedy of an order of payment for lost remuneration not earned as a train driver because of the dismissal. 67RailCorp is opposed to the remedy of reinstatement because of the Bomaderry incident and also drew attention to certain unfavourable incidents in the appellant's employment history. 68The TAB has decided to order the reinstatement of the appellant (Mr Ian Walker) to his former position as train driver. The appellant did not seek an order for payment of lost remuneration between the date of his dismissal and the date of order of his reinstatement. The TAB will also issue an order that the appellant have continuity of employment (as if there had not been a cessation of his employment). ORDERS 69In relation to the appeal (TAB 1008 of 2011), the Board makes the following orders: (1) The appeal is allowed. (2) The decision of RailCorp to dismiss Ian Walker (the appellant) is set aside and he is reinstated to his former position of Train Driver, effective 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. A Macdonald 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: 26 August 2011