Brown and RailCorp [2011]NSWTAB [2011] NSWTAB 19

Transport Appeal Boards New South Wales Medium Neutral Citation: Brown and RailCorp [2011]NSWTAB [2011] NSWTAB 19 Hearing dates: 5 & 12 October 2011 Decision date: 14 October 2011 Before: Macdonald C (Board) Decision: (1) The appeal is allowed Catchwords: PUBLIC SERVICE - RailCorp - employee engaged as Driver - employee dismissed following investigation - employee appealed the decision to dismiss his services - first Notice of Appeal lodged by employee at former address of Transport Appeal Boards - second Notice of Appeal lodged at correct address but out of time - RailCorp raised jurisdictional issue - 21 day time limit in which to appeal - no statutory discretion in Transport Appeal Boards to accept late filed Notice of Appeal - Union admitted to giving wrong address to dismissed employee - first Notice of Appeal lodged in time - HEARING: - Witnesses - representational error by Union - Board accepted first Notice of Appeal that was lodged in time - Notice of Appeal allowed to proceed. Legislation Cited: Transport Appeal Boards Act 1980 Cases Cited: Tenedora v RailCorp (15/11/2010) Category: Principal judgment Parties: Robert Brown (Appellant)

Rail Corporation of NSW (Respondent) Representation: Mr L Heaney & Mr B Edghill Train Tram and Bus Union (Appellant)

Ms M Robinson Rail Corporation of NSW (Respondent) File Number(s): TAB 1102 of 2011

DECISION on jurisdiction

Introduction 1Robert Brown (the appellant) commenced employment with the Rail Corporation of NSW ("RailCorp") on 28 November 2005 as a Car Cleaner. At the time of his dismissal on 1 July 2011, he had been engaged as a Train Driver. 2On 25 July 2011, the Appellant lodged a Notice of Appeal. 3Given that this Notice of Appeal was lodged outside of the 21 day time provided for by section 13 of the Transport Appeal Boards Act 1980, then RailCorp raised a jurisdictional objection to the Appellant being able to pursue his Notice of Appeal. 4A Hearing on this jurisdictional issue took place on 5 and 12 October 2011 before the Transport Appeal Boards ("the Board"). 5The Appellant was represented by the Rail, Train and Bus Union, NSW Branch ("the Union"). At the 5 October Hearing, the Union was represented by Mr B Edghill. He called as a witness, Ms Jade Thompson, receptionist at the Union. At the 12 October Hearing, the Union was represented by Mr L Heaney who called the Appellant as a witness. 6At both Hearing dates, RailCorp was represented by Ms M Robinson.