Transport Appeal Boards New South Wales Medium Neutral Citation: Jarman and RailCorp [2011]NSWTAB [2011] NSWTAB 18 Hearing dates: 15-17 & 26 August 2011 Decision date: 07 October 2011 Before: Macdonald C (Board) Decision: (1) The appeal is disallowed Catchwords: PUBLIC SERVICE - RailCorp - employee engaged as Customer Service Team Leader Qualified at Campbelltown Station - the Station Manager/Duty Manager's office on platform 2 has a lost property locker and register - mobile phone handed in as lost property and recorded in lost property register - RailCorp employee accessed mobile in attempt to identify owner through phone number retained in mobile - message passed onto owner to contact Campbelltown Station - owner phoned Station but told mobile phone was recorded in lost property register as being picked up by owner - register showed entry of alleged owner and mobile phone number - RailCorp investigation - forensic analysis of handwriting entry made by someone who recorded that owner had picked up his phone - forensic analysis of handwriting of four employees undertaken - handwriting analysis suggested appellant had made the suspect entry in the register - appellant dismissed following investigation - APPEAL HEARING- Appeal disallowed Legislation Cited: Transport Appeal Boards Act 1980 Category: Principal judgment Parties: Robert Jarman (Appellant) Rail Corporation of NSW (Respondent) Representation: Mr L Heaney Tran Tram and Bus Union (Appellant) Ms M Robinson Rail Corporation of NSW (Respondent) File Number(s): TAB 909 of 2011 DECISION Introduction 1Robert Jarman (the appellant) commenced employment with the Rail Corporation of NSW ("RailCorp") on 14 August 2000 as a casual employee during the Sydney Olympic Games. On 15 January 2001, his employment status was changed to permanent as a Customer Service Attendant Grade 2 at Turrella. On 30 May 2004, he was promoted to Customer Service Team Leader Qualified at Campbelltown Station. He remained in this role until his dismissal on 31 March 2011. The appellant has appealed that dismissal decision to the Transport Appeal Board ("the Board"). 2During proceedings, the Board became aware that Robert Jarman had changed his name legally and was formerly known as Robert Inns. Some of the evidence that arose during the proceedings referred to Robert Inns but mainly referred to Robert Jarman. BACKGROUND 3On Friday 5 June 2009 a City Rail passenger, Mr Paul Li, lost his mobile phone between 2130 hours and 2230 hours. The phone was found by a Train Guard and signed into the Campbelltown Railway Station Lost Property Book and stored in the Lost Property Locker located in the station manager's office by the night shift Duty Manager ("DM") Joseph Danelon. 4On Saturday 6 June 2009, the day shift DM Charley Tanuvasa, attempted to locate the owner of the mobile phone by dialling a recently dialled number and speaking to a male person who identified himself as a friend of Paul Li. DM Tanuvasa said that he then returned the mobile phone to the Lost Property Locker. DM Tanuvasa finished his shift at 1400 hours (2.00pm). He was replaced by DM Khan who worked 1400 hours to 2200 hours (10.00pm). 5The appellant worked on the Saturday, 6 June. Around 5.30pm that day, he entered the station manager's office to book into the lost property locker, three items of lost clothing. He took the lost property locker key from the station manager's desk in order to open up the locker. DM Khan was seated at his desk in the station manager's office, at the time. The appellant recorded the lost property items in the lost property book and placed the lost items in the locker, where the red coloured phone had been stored. 6On Sunday 7 June 2009, Mr Li phoned Campbelltown Station to enquire about his mobile phone. He was informed by DM Danelon that the Lost Property Book showed that the phone had been returned to its owner. There was an entry that relevantly read: "owner ../06/09 P Ivanakovic 0426719085" ("the questioned entry"). The mobile phone was no longer in the Lost Property Locker. 7The mobile phone matter was referred to RailCorp's Investigations Unit for investigation. 8RailCorp was of the view that only four persons had access to the Lost Property Book or Lost Property Locker during the period of time that the mobile phone was known to be in RailCorp's possession. These persons, DM Danelon, DM Tanuvasa, DM Liaquat Khan and the appellant, gave statements about their knowledge of the mobile phone. The appellant denied having seen the mobile phone or having made any entry (the questioned entry) relating to the mobile phone in the Lost Property Book. 9Handwriting samples from DM Tanuvasa, DM Danelon, DM Khan and the appellant were complied and submitted to Forensic Document Services Pty Ltd ("FDS") for comparison with the questioned entry in the Lost Property Book. The analysis by FDS advised that there was no evidence to suggest that DM Khan, DM Tanuvasa and DM Danelon had been the authors of the questioned entry. There was evidence to suggest that the questioned entry had been written by the appellant. 10As a result of the preliminary enquiries, Daren Jay, an investigator with the RailCorp's Investigations Unit, conducted a disciplinary investigation. On 27 July 2010, Mr Jay forwarded a letter to the appellant notifying him of the three allegations that, it was claimed, he had breached in respect of the RailCorp Code of Conduct . The appellant was invited to respond to the allegations in writing within seven (7) days. 11On 16 September 2010 the appellant provided a response to the allegations. In summary, he denied all three allegations, stating that he made a "legit" entry in the Lost Property Book on 6 June 2009 (being the entries at lines 22, 23 and 24 in the Lost Property Book) and that these entries were made by him while in the Station Manager's office on the bench adjacent to the Station Manager's work desk. 12Mr Jay invited the appellant to attend a disciplinary interview on 28 September 2010. The appellant declined the invitation and provided further information in response to the allegations. In summary, he stated that the allegation refers to a red phone and the Lost Property Book records a black phone, and repeated that he had no knowledge of a red or black phone. He also stated that over a 24 hour period approximately 350 staff members walk through and past the Station manager's office to sign on and off duty and all have access to the Lost Property Locker. He alleged that a huge number of other items had gone missing. 13Mr Jay concluded that the allegation was substantiated. On 25 November 2010 Mr Jay's investigation report was forwarded to the Disciplinary Review Panel (DRP) for consideration. 14On 6 December 2010 the Disciplinary Review Panel reviewed the evidence in relation to the allegation. The DRP made a preliminary recommendation that the appellant should be dismissed. On 22 December 2010, Mr George Stojkovski, General Manager Customer Service, CityRail South and South West, 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. 15The appellant provided an undated response. 16Mr Jay reviewed the appellant's response and prepared a supplementary report. 17On 14 March 2011 the DRP considered the appellant's response and Mr Jay's supplementary report and confirmed their recommendation of dismissal. 18On 31 March 2011 Mr Stojkovski signed a letter confirming that the appellant was dismissed effective 31 March 2011. He was paid four (4) weeks in lieu of notice. APPEAL PROCEEDINGS - TRANSPORT APPEAL BOARD 19Robert Jarman (the appellant) appealed his dismissal by lodging a Notice of Appeal - Transport Discipline. It was filed on 12 April 2011. He pleaded "Not Guilty". 20His appeal application was set down for Conciliation before Connor C (the Board) on 6 May 2011. That Conciliation was unsuccessful and the matter was programmed for a Hearing before myself, Macdonald C, (the Board). 21The Hearing took place on 15, 16, 17 and 26 August, 2011. 22RailCorp was represented by Ms M Robinson. 23The appellant was represented by Mr L Heaney of the Rail, Tram and Bus Union ("the Union"). 24RailCorp 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: * RailCorp's Written Case * Statement of Darren Jay (Investigator) * Several Employee Witness Statements * Correspondence between RailCorp and the appellant * Summary Advice of Ms Candace Soussa, Forensic Document Services * RailCorp Code of Conduct * Dismissal Letter of 23 March 2011 25The Union gave notice to RailCorp that the following witnesses were required for cross-examination: Candace Moussa - Forensic Document Services Jasmin Watson - Statement Officer, Virgin Mobile Paul Li - mobile phone claimant Darren Jay - Investigator, RailCorp Joseph Danelon - Duty Manager Charley Tanuvasa - Duty Manager Liaquat Khan - Duty Manager Gloria Hodges - Customer Service Attendant Class 2 Alayne Cameron - Duty Manager Russell Turner - Duty Manager Naomi Opetaia - Customer Service Attendant Class 2 26The last two called witnesses (Turner and Opetaia) were not available to appear in court and be cross-examined on statements prepared by them. The Union objected to their statements forming part of the evidence before the Board because they were not available to be cross-examined. The Board upheld that objection and their statements were excluded from the Board's consideration. 27The appellant's case included his Appellant's Written Case and two witnesses, being: Brendan Taylor - Duty Manager Robert Jarman - the appellant FINAL SUBMISSIONS For RailCorp 28Ms Robinson, for RailCorp, put the following in final submissions: (a) The evidence that the appellant took and kept a mobile phone from the lost property locker is based on circumstantial evidence. No witness saw him take the phone. But through a process of elimination, RailCorp has held that the appellant took the mobile phone for himself. (b) The lost property log book had an entry that the real owner (Mr Li) of the mobile phone had picked up his mobile phone - but he had not. (c) The log book entry writing was examined by a handwriting expert and compared to the handwriting of four staff (including the appellant). The handwriting expert identified the appellant as the person who wrote the false entry in the log book. (d) DM Khan gave evidence that on his shift the only staff member who had access to the lost property locker was the appellant. (e) The appellant claimed that up to 350 staff could walk past the station manager's office in a 24 hour period to sign on for duty and maybe one of these persons was the culprit. This claim is rejected by RailCorp. (f) The station manager's office is locked if the station manager or duty manager leaves the office - except if they are only absent for say a minute - for example to get a glass of water from upstairs. (g) For someone to access the station manager's office (in their absence), a spare key is required to open that office and that spare key is kept in a locked safe in another office. (h) The Board can be satisfied on the balance of probabilities, that the appellant is guilty of the three allegations made against him by RailCorp. For the Union 29Mr Heaney, for the Union, put the following in final submissions: (a) The appellant pleads Not Guilty to the three allegations. (b) No witness has been produced by RailCorp to show that he/she saw the Appellant take the red mobile phone. (c) The lost property locker log entry does not record that a red coloured mobile phone was ever placed there. (d) The number of staff who could have had access to the locker was more than the four whose handwriting styles were analysed. (e) Evidence from the carrier (Virgin Mobile) of the lost mobile phone of Mr Li, showed that the recorded use of that mobile phone was at odds with Mr Li's account of his use of the mobile phone he claims to have lost. The union submitted that Mr Li did not lose his mobile phone and it was not handed into the Campbelltown railway station. RailCorp in Reply 30Ms Robinson submitted in reply that: (a) There was no evidence that the spare key/master key had been used by anyone over the weekend in question. (b) Any small inconsistencies in RailCorp's case against the appellant are just that. CONSIDERATION 31The appellant has appealed his dismissal from his employment with RailCorp. He was dismissed by way of a letter dated 23 March 2011. The letter sets out three allegations against the appellant. These allegations were said to have been substantiated following an investigation. The three allegations are: (a) It is alleged that you engaged in unacceptable behaviour which amounts to a breach of the RailCorp Code of Conduct by making a false entry in an official document. (b) It is alleged that you engaged in unacceptable behaviour which amounts to a breach of the RailCorp Code of Conduct by providing a written statement in connection with a RailCorp investigation which you knew contained false or misleading information. (c) It is alleged that you engaged in unacceptable behaviour which amounts to a breach of the RailCorp Code of Conduct by failing to return a Red coloured Nokia 5800 mobile phone to its lawful owner. 32The Board sets out below its deliberations on the three allegations. 33The lynchpin of these three allegations/substantiated findings of RailCorp is the last one: that is, a finding that the appellant had removed and taken for himself a Red coloured Nokia 5800 mobile phone ("the Red mobile phone"). If so, then that conduct would constitute misconduct. (Allegation (c)) 34RailCorp then go on to say that the appellant took possession of the Red mobile phone (which was stored in the lost property locker) when he accessed that locker during his Saturday shift. The appellant legitimately accessed the locker in order to store some lost property and this entailed recording entries in the lost property log book as to those lost property items. During that process, the appellant sighted the Red coloured mobile phone and took it for himself. He then made a false entry in the log book that the Red coloured mobile phone had been picked up by its owner: P Ivanakovic. (Allegation (a)) 35RailCorp then says that during the initial investigation into the missing Red coloured mobile phone, the appellant knowingly provided a false statement as to his knowledge of its whereabouts. (Allegation (b)) Missing Mobile Phone 36The Union questioned whether there was in fact a missing mobile phone. The Union relied upon some discrepancies in the mobile use said to have taken place by its owner, Paul Li, who gave evidence in the proceedings. 37The Board has concluded that any discrepancies are inconsequential. The Board accepts the evidence of Paul Li that he lost his mobile phone whilst on the train on Friday night, 5 June 2009. He described his mobile phone as a red coloured Nokia 5800, retained in a black leather case and costing about $800. He said he learned on Sunday, 7 June from a contact person of his, that a person called "Charlie" from Campbelltown Railway Station had phoned this contact person to advise that a mobile phone had been handed into the office of that railway station. (Ex 1, TAB 11) 38The "Charlie" is Charley Tanuvasa, DM at Campbelltown Railway Station. He made out a statement to say he was working the Saturday, 6 June shift. He was informed that a mobile phone had been handed in. He took steps to find its rightful owner. He accessed the mobile phone and called a number, which was the number of the contact person who knew Paul Li. The contact person said he would advise Paul Li that his mobile phone had been located. (Ex 1, TAB 14) 39Paul Li telephoned the railway station on Sunday, 7 June to claim his mobile phone, but only to be told that someone had signed for and taken possession of the mobile phone. (Ex 1, TAB 11) 40The Board is satisfied that the mobile phone lost by Paul Li on Friday night, 5 June, on a train is the mobile phone handed into the office at Campbelltown Railway Station. That is so, given that the "lost" mobile was able to be accessed by DM Tanuvasa and traced to its owner, Paul Li. The Board accepts that that "lost" mobile phone is the Red coloured mobile phone logged into the lost property locker and that it was housed in a black leather case. Handwriting Analysis 41The Red coloured mobile phone was handed in late Friday night, 5 June and was missing on the Sunday, 7 June when Paul Li telephoned the railway station. 42RailCorp carried out an investigation into the missing Red coloured mobile phone. That investigation included providing handwriting samples of four railway staff to FDS for handwriting analysis and hence comparison with the questioned entry in the lost property log book. That entry was a handwritten entry. The analysis by FDS advised that there was evidence to suggest that the questioned entry (P Ivanakovic etc) had been written by the appellant. 43RailCorp called Ms C Moussa, forensic document and handwriting examiner from FDS to give evidence as to her finding that suggested that the appellant had made the questioned entry. 44Ms Moussa's handwriting report (Ex 1, TAB 20) and her evidence advised of the process involved in the examination of the handwriting specimens of the four staff members (DM Danelon, DM Tanuvasa, DM Khan and the appellant) against the questioned entry. That process included subjecting the handwriting specimens to microscopic examination. 45The cross-examination of Ms Moussa raised issues about the limited number of handwriting specimens (four staff only) as against there are a larger number of staff working in or out of the railway station; the similarities between the handwriting specimens of the three duty managers and the questioned entry; and the possibility of the questioned entry being written by a person forging the signature of the appellant. Ms Moussa responded that she was only given by RailCorp four handwriting specimens to consider. Any similarities between the specimens of the three duty managers and the questioned entry were isolated similarities. Further, there were at least significant differences between their handwriting styles and the questioned entry. As to the possibility of forgery, the questioned entry showed some overwriting for a part of the entry but the rest of the entry writing appeared to be written in a fluent fashion, with no suggestion of hesitation and hence the questioned entry was not viewed as a forgery. (Tr 15/08/11, p 20-13) 46In summary of Ms Moussa's evidence, it is that the handwriting analysis of the four staff, suggests that the appellant wrote the questioned entry in the lost property log book. Her evidence was not shaken in that regard during cross-examination. Sample Size: Who Had Access? 47However, there is the issue raised by the Union about the sample size of four handwriting specimens. RailCorp only provided Ms Moussa with four examples because it took the view that only four employees had access to the station manager's office. The Union, on behalf of the appellant, submitted that the number of employees who could have access to the station manager's office was considerably more. The appellant suggested that about 350 employees walk pass the station manager's office in a 24 hour period. 48There was evidence provided by witnesses, that not only greatly reduced the 350 number estimate of the appellant but also went to the issue as to who might have access to the station manager's office. 49DM Danelon gave the number as 60 to 80 employees per day would walk into the train crew sign-on/sign-off room (which is a room different and separate from the station manager's office which the Duty Manager use as their office). Further, he advised that this number comprised train drivers and guards and they don't have a need to access the station manager's office to hand in lost property, and so they hand it over to the railway station staff for disposal. As well, the door to the internal offices on the platform has a punch code lock and this excluded the public from gaining internal entry. This security lock procedure excluded members of the public from being able to access the station manager's office. (Tr 16/08/11, p84 line 8 to p85, line 22) 50DM Tanuvasa gave the number as 60 to 65 employees per day would walk into the train crew sign-on/sign-off room (which is a room different and separate from the station manager's office which the Duty Managers use as their office) The train crew comprise train drivers and guards and they represent the 60 to 65 employees referred to above. The train crew have no need to access the station manager's office (where the lost property locker is found). The train crew are not shown lost property procedure. 51DM Tanuvasa said that the train crew is a different classification to the station staff which numbers about eighteen in a 24 hour shift. The staff have a separate sign-on room to the train crew. The staff sign-on room is adjacent to the station manager's office. There is a connecting door to the station manager's office but it can only be opened from inside the station manager's office. Thus it can not be opened by anyone located in the staff sign-on room. 52DM Tanuvasa further stated that no person can access the station manager's office without an officer-in-charge being present. No other person, he said, had access to the lost property locker during his shift on Saturday, 6 June. That was the day he called a contact person listed in the red coloured mobile phone to ascertain the owner's identity. 53DM Tanuvasa said he did not see the appellant with a black or red Nokia mobile phone. (Tr 16/08/11, p4 to p30) 54DM Khan was on duty in the station manager's office when the appellant entered the room to record certain items of lost property in the lost property log and place those items in the lost property locker. He advised that the appellant retrieved the key for the locker from the desk at which DM Khan was sitting. The appellant was absent for a few minutes whilst he placed the three lost items in the locker and made three entries in the log book. He said that he could not see the appellant whilst the latter was in the lost property room. He disagreed with the appellant's claim that the appellant recorded the lost items in front of DM Khan. 55DM Khan also gave evidence that on his shift the appellant was the only person to whom he gave access to the lost property locker. (Tr 16/08/11, p32 to p50) 56Gloria Hodges gave evidence. At the time that the red coloured mobile phone went missing, she worked as a Station Support Officer. The office attached to that position is located just over from the station manager's office. 57Ms Hodges confirmed that there is a spare key, to the station manager's office, locked in a safe in the station support office. The key to the safe is only held by the Station Support Officers and is located in the desk drawer. She was on duty on Sunday, 7 June and stated that she did not use the spare key in order to access the station manager's office and nor did she give the key to anyone. Ms Hodges also advised that the station support office is kept locked - except for a few minutes when she goes upstairs to put the kettle on. (Tr 16/08/11, p54 to p66) 58Alayne Cameron gave evidence in the proceedings. She has been engaged as a Station Support Officer (now known as Duty Manager Level 1) since 2004. 59Ms Cameron confirmed that there is a spare key to the station manager's office kept in a locked safe in the station support office. She worked on Saturday, 6 June 2009 from 1400 hours (2.00pm) to 2200 hours (10.00pm) and she worked Sunday, 7 June from 0600 hours (6.00am) to 1700 hours (5.00pm). During those two shifts (two days), she did not use the spare key to the station manager's office and nor did she give the key to anyone. (Tr 16/08/11, p67 to 75) 60The Board has set out above the relevant evidence surrounding the appellant's claim that anyone amongst 350 odd employees could have been the culprit for the missing red coloured mobile phone. Tied in with that appellant defence is the Union argument that the handwriting specimens only numbered four employees and why were more employees not considered for handwriting analysis. 61RailCorp only chose four workers for handwriting analysis because RailCorp made an assessment, based upon an investigation, that there were only four employees who could have had access to the station manager's office and hence the lost property locker. Could more employees have had access? In answering that question, it is to be borne in mind that there are two broad classifications of employees associated with the railway station: (a) train crew and (b) station staff. 62The train crew (train drivers and guards) need to sign-on/sign-off and they do so in an area of the station building over from the station manager's office. They have no need to access the station manager's office. Even if one of those train crew had a need to access the station manager's office, for example to send a facsimile, then that crew member could only do so if the station manager's office was open and that would require the presence of a duty manager. 63The evidence from the duty managers was that they worked in the station manager's office and if they left that office, then the office door would be locked. The only occasion where a duty manager would leave the door unlocked is for that occasion of a minute or few minutes when say speaking to the station support officer across from the station manager's office but the station manager's office would still be in view. 64Even if a duty manager left the station manager's office unattended, for a few minutes and did so without having the station manager's office in view and it was unlocked, then the Board would need evidence that such a scenario just described, actually took place on the weekend in question - in order to set up the defence that there was a window of opportunity for an unknown train crew person to have accessed the station manager's office. 65The number of train crew employees who would be aware of the lost property locker and key is limited. DM Tanuvasa gave evidence that the train crew are not shown lost property procedure. 66DM Taylor gave evidence that the only train crew employees who would know the whereabouts of the lost property locker key is that train crew employee who was formerly a station staff employee. DM Taylor said there were about twenty former station staff amongst the train crew. (Tr 17/08/11, p13, line 46 to 48) All that that evidence sets up is that some twenty train crew members knew of the lost property procedure and the whereabouts of the locker key. There was no evidence that any of these twenty odd train crew members were rostered to work on the weekend in question when the red coloured mobile phone went missing. 67The other category of employee is the station staff. Their sign-on/sign-off room is adjacent to the station manager's office and there is a connecting door between the two offices. However, that door can not be opened from the sign-on/sign-off office used by the station staff. The only way that station staff can access the lost property locker (if allowed to do so by the duty manager on deck) is via the station manager's office which is locked if the duty manager has left the office. 68The Board has been given evidence that each duty manager locks the station manager's office if they leave that office - except for absences of up to a few minutes. There was no evidence that on the weekend in question that a particular duty manager left the station manager's office, for a few minutes, and in doing so, left the door unlocked and was not in a position to observe a staff person accessing that office for the sole purpose of stealing the red coloured mobile phone. 69In summary of the appellant's and the Union's arguments, the Board takes the view that the appellant's defence is no more than suggesting a possibility that someone else is the culprit but that defence requires that the someone else had known the existence and whereabouts of the lost property locker key and knows when the duty manager has left the station manager's office and that the duty manager did so without locking the door and the duty manager left the station manager's office area and could not observe anyone entering the station manager's office or observe anyone entering the external platform door that leads to the internal offices. There was no evidence that any duty manager on the weekend in question had conducted themselves in the foregoing multiple factor scenario. 70As to the Union's defence that more employees should have had their handwriting analysed, that is an argument available to the Union. It would have merit, if the Board held that there was merit to the appellant's defence that the relevant duty manager(s) had been absent from the station manager's office and had not locked the station manager's door and had left the station manager's office area and was not in a position to observe a person entering his office in his absence. The Conflicting Evidence 71The appellant entered the station manager's office around 5.30pm on Saturday, 6 June. He did so to place certain lost property items in the lost property locker and to record those items in the lost property log book. His initial statement made in respect of the investigation process, was to deny the allegations made by RailCorp. In particular, he said he recorded the lost property items in the log book and in doing so he said he was "not more than 1 metre away from my officer-in-charge. He was at his desk. I was at the bench right next to his desk in full view of him." (Ex 1, TAB 3) The "officer-in-charge" was DM Khan. 72The Board understood the implication of the foregoing extract to mean that the appellant was stating that he did not write the questioned entry in the log book and, if he had done so, then it would have been observed by DM Khan. 73DM Khan gave evidence in the proceedings and he denied that the appellant recorded the lost items in the log book, in front of him. This evidence set up a conflict in the evidence. 74The Board did not have to resolve this conflict, because of clarifying evidence given by the appellant in cross-examination from RailCorp's advocate. He agreed that DM Khan could not have seen what he was writing in the log book and he possibly would have had his back to DM Khan when writing in the log book. (Tr 17/08/11, p23, line 8 to p23, line 36) 75In his witness statement, the appellant said he booked the lost items into the log book at the station manager's desk. (Ex 1, TAB C) That evidence is different to his initial statement where he said he wrote in the log book "on the bench adjacent to his (DM Khan's) desk, in full view of him. (Ex 1, TAB 3) Under cross-examination, the appellant agreed that he should have said "at the bench". (Tr 17/08/11, p23, line 43 to p25, line 17) 76Whether the appellant recorded the lost items in the vicinity of the duty manager or in the lost property room (and hence out of sight of the duty manager) is irrelevant, in the Board's view, to the taking of the red coloured mobile phone. On the appellant's version of events, he was in the lost property room twice and had access to the lost property locker that stored the red coloured mobile phone, on those two occasions. He could not be observed whilst in the lost property room, by DM Khan. CONCLUSION 77Sometime between Saturday, 6 June and Sunday, 7 June, a red coloured mobile phone went missing from the lost property locker at Campbelltown Railway Station. Following an investigation, RailCorp determined that the appellant had taken that mobile phone and he was dismissed for it. 78The appellant appealed that dismissal. 79RailCorp carries the onus to prove that the appellant took the red coloured mobile phone (which had a black covering). 80RailCorp engaged the services of a handwriting expert who considered the handwriting specimens of the four workers that RailCorp claimed were the only employees who had access to the station manager's office - wherein the lost property locker and its key are held. The handwriting expert held that the appellant's handwriting specimen suggested that he was the employee who wrote the questioned entry in the lost property log book. This evidence, to the Board, was the lynchpin of RailCorp's case against the appellant. 81The appellant and the Union put forward defences to this handwriting expert conclusion. Having considered that evidence, the Board finds that the appellant and the Union have not undermined the conclusion of the handwriting expert. Further, the appellant's defence that anyone of some 350 employees could have been the culprit has no merit for the reasoning set out in this Decision. 82Accordingly, the Board finds that the appellant has not overturned the three allegations that RailCorp found had been made out against the appellant and which three allegations are RailCorp's reasoning for its dismissal of the appellant. 83The appeal by the appellant against RailCorp's decision to terminate his services, is disallowed. 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: 28 October 2011