Transport Appeal Boards New South Wales Medium Neutral Citation: Wheeler v RailCorp [2011] NSWTAB 21 Hearing dates: 02/11/2011 Decision date: 04 November 2011 Jurisdiction: Civil Before: Ritchie C (Board) Decision: Catchwords: Duty Manager applied for days off by completing an application for leave-Station Manager not available so forged her signature-Duty Manager admitted action-investigation commenced-Respondent determined that action contrary to Code of Conduct-penalty regressed from Duty Manager to Customer Service Attendant Qualified-not eligible for promotion for a period of 12 months. -Appellant long term employee who was aware of procedures -breached Code of Conduct -Board dismissed appeal. Category: Principal judgment Parties: Mr M Wheeler (Appellant) RailCorporation of NSW(Respondent) Representation: Leigh Heaney Rail Traim & Bus Union (Appellant) Anne Baxter RailCorp (Respondent) File Number(s): TAB 1109 of 2011 DECISION Introduction 1The Rail Tram and Bus Union filed an appeal on 6 August 2011, on behalf of its member Mr Michael Wheeler as a consequence of the respondent regressing Mr Wheeler from his position of Duty Manager at the Morisset railway station to the position of Customer Service Attendant Qualified. 2The appeal came before Bishop C for conciliation on 30 August 2011, but was not settled and therefore proceeded to arbitration on 2 November 2011. At the end of the hearing on that day the Decision was reserved. Issue(s) 3On 19 November 2010 Mr Wheeler completed an application for leave requesting time off for the period of 2 December 2010 to 5 December 2010 inclusive. He signed the form dating it 19 November 2011. In completing the leave form Mr Wheeler forged the signature of Ms N Kelly the acting Station Manager dating the signature 18 November 2010. 4In completing the form Mr Wheeler under the sub heading of Reason typed: to clear some accumulated leave while we have a spare body no ot involved. Under the sub heading of Station Manager Recommendation he typed: can't see an issue have someone to cover involves no ot. 5The leave form was then faxed to the Customer Service Manager. On receiving the form Mr Dunford sought to speak to Ms Kelly but was advised she was on a day off. This raised his suspicions so he held the form to speak to Ms Kelly. On returning to work on 22 November 2010, Ms Kelly saw the leave form in a tray designated for leave forms. She did not recognise the form and believed that her signature had been forged. She then contacted Mr Dunford. 6An investigation was commenced by the Investigation Unit of the respondent. Allegations were placed in writing and sent to Mr Wheeler. Mr Wheeler admitted that he had forged Ms Kelly's signature. Respondent's and Appellant's Cases 7It was the respondent's case that Mr Wheeler is a long term employee who commenced with the respondent in 1982 and has spent 13 years as a Duty Manager. A Duty Manager is responsible for the day to day operation of a station under the control of the Station Manager, including the efficient and effective management of the station, staff and facilities, delivery of customer service, on time running, and safety of customers. The position encourages team work, staff development and promotes the station's business. He therefore has to provide a level of trust and responsibility in carrying out his role. The Code of Conduct clearly outlines what is required with respect to maintaining full and accurate records and the added responsibilities that go with being a manager. His attitude with respect to forging Ms Kelly's signature did not show the gravity of the issue as he stated that it took him two hours to forge it as she was not consistent. His aim was to get the leave form signed so he could have the days off approved. In mitigation Mr Wheeler had stated that his father was gravely ill at the time and that played on his mind. This response was not raised during the investigation but only when the proposed penalty was mooted. On the day when he raised the leave form, Mr Wheeler could have contacted Ms Kelly at home or Mr Dunford and explain his situation. If he did have family issues on his mind then the Employee Assistance Programme was available. Ms Baxter also stated that Mr Wheeler's disciplinary history was before the Disciplinary Panel and therefore would have been considered when determining a punishment. Overall his length of service and degree of responsibilities in his supervisory roles warrants a regression. 8On behalf of his member Mr Heaney stated that Mr Wheeler owned up to what he had done at first instant. He was deeply remorseful and understands that his actions were wrong. Mr Wheeler has been a loyal employee who would like to continue in his present role until his retirement. He did have the leave in credit and he did not gain anything extra by what he did. Had he followed the correct procedure he would have been granted the leave. The penalty requires Mr Wheeler to be regressed and requires him to apply for his position after 12 months and be successful on merit. What was sought by Mr Heaney was that Mr Wheeler be regressed for a fixed period only, such as 3, 6 or 12 months. Findings 9I am satisfied from the statements of Ms Kelly, Mr Dunford, Mr Kinney and Mr Evans that were part of the evidentiary case of the respondent and the statement of Mr Wheeler that formed part of the evidentiary case of the appellant that the allegation of Mr Wheeler forging the signature of Ms Kelly on a leave application form has been proven. 10The leave form that held the forged signature was raised on 19 November 2010 and signed by Mr Wheeler on that day yet the forged signature of Ms Kelly is dated the day before 18 November 2010. Therefore if it was valid, Ms Kelly would have signed prior to Mr Wheeler. I can understand Mr Dunford being suspicious. 11As a case of forgery this was a ham fisted example that did not survive a preliminary cursory view. 12Mr Wheeler stated that he was most keen to have the days off. Whilst it was raised by the appellant that there existed an issue of a mitigating circumstance being the illness of his father, it was accepted by Mr Heaney that this was not raised by Mr Wheeler when he was asked to respond to the allegations at first instant when put to him by the respondent. I therefore have some doubts as to the illness of his father being on his mind at the time when he sought leave on 19 November 2010. Mr Wheeler in his Statement categories his action as a "human mistake". I do not accept this categorisation. What he did was a calculated action, which in his own words, took some hours to master Ms Kelly's signature. 13He was aware that an officer was available to cover him for those days therefore there would not be a requirement to pay overtime. Of course Mr Wheeler, if he was so keen to obtain immediate approval to have the days off, could have either contact Ms Kelly at home or Mr Dunford at work and stated his case as Ms Baxter submitted. Notwithstanding the leave application being forged, the leave was approved. 14In response to a question from the Board, Mr Wheeler did state that he did not think he would have been "dobbed in" by Ms Kelly. Mr Dunford did state in one of his statements that Mr Wheeler had a propensity to "short cut" the rules. 15The question before this Board is one of penalty. I note that in the Code of Conduct-2 Acceptable behaviour and responsibilities, it states in part: If you are a manager or supervisor, you have additional responsibilities. You must: * Lead by example * Promote the highest standards of professional conduct. * Ensure you do not permit or encourage any employee to act in breach of the Code. * Maintain the integrity and security of official documents or information. * Ensure you properly and diligently discharge your supervisory responsibilities. Clearly by forging the signature of the Station Manager Mr Wheeler failed to uphold the Code of Conduct. 16It is my finding taking into consideration all of the evidence that came before the Board that the penalty applied to Mr Wheeler by the respondent is fair in the circumstances. Order(s) 17The appeal is therefore dismissed. D.RITCHIE 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: 04 November 2011