Borg v RailCorp [2011] NSWTAB 24

Transport Appeal Boards New South Wales Medium Neutral Citation: Borg v RailCorp [2011] NSWTAB 24 Hearing dates: 11/11/11, 24/11/11 Decision date: 09 December 2011 Before: Ritchie C (Board) Decision: Catchwords: Appeal against termination of employment- Appellant had been terminated for breach of Code of Conduct in that by his physical actions had intimidated a supervisor when he came late for work. Previous night he had been late and this supervisor had docked his pay. On night in question he had contacted the appropriate supervisor to advise due to a family situation may not be able to attend work, but did agree to come. Confrontation with supervisor on arrival -Board found that on balance of probability what had been alleged by employer did take place, but found that termination was harsh. Order for re-employment on new contract with a final warning. Cases Cited: Steel Industries Inc. v Commissioner for Railways (NSW) &Ors (1964) 112 CLR 125. Category: Principal judgment Parties: Mr James Borg (Appellant)

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

Ms M Robinson (Respondent) RailCorp File Number(s): TAB 1130 of 2011

DECISION

Introduction 1Mr James Borg filed a Notice of Appeal- Transport Discipline form on 24 August 2011. Mr Borg held the position of Presentation Service Attendant within RailCorp located at Redfern. In his Notice of Appeal Mr Borg stated that he had been terminated by RailCorp. He pleaded that he was not guilty.

Issue 2It was alleged that about 9.00 pm on 15 February 2011 in the sign on room at Redfern station, during a conversation with Duty Officer Sham Sharma in relation to time keeping issues, Mr Borg intimidated him by tensing his body, holding his arms down at his side with clenched fists. Mr Borg's facial expression turned to anger and he stepped towards Mr Sharma causing Mr Sharma to fear that Mr Borg may physically harm him. 3A disciplinary investigation was conducted and a letter of allegation was sent to Mr Borg on 3 March 2011. He was provided with the opportunity to make a response to the allegation. He provided a response dated 21 March 2011. He declined the investigator's invitation to attend a disciplinary interview. The investigation found that the allegation was substantiated. 4The investigation report was forwarded to the Disciplinary Review Panel. On 27 June 2011 the Disciplinary Review Panel reviewed the report and made a preliminary recommendation that Mr Borg be terminated. 5On 28 June Mr Nick Bruzzese Acting General Manager Presentation Services, wrote to Mr Borg and advised him of the preliminary view and gave him 14 days to make a submission as to penalty and to submit any further information that he may wish to provide. Mr Borg provided a response dated 5 July 2011. 6On 25 July 2011 the Disciplinary Review Panel reconsidered the matter and confirmed their recommendation and on 27 July Mr Bruzzese signed a letter dismissing Mr Borg effective 10 August 2011.