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. Evidence of Respondent. 7The respondent filed five statements. Mr John Kinney (Investigation Unit) and Mr Rajinder Kumar (shift manager) were not required for cross examination. Mr Sham Shama (Duty Manager) and Mr Ibrahim Baskharron (Customer Service Attendant) were crossed examined on 11 November 2011 and Mr Mohamad Chahine was cross examined on 24 November 2011. 8Mr Kinney's statement placed on record the investigation report of Michael Crimmins, the correspondence from Mr Bruzzese to Mr Borg, Mr Borg's written response, the letter of termination directed to Mr Borg, a copy of the Code of Conduct and a copy of the Dignity and Respect in the Workplace Procedure. 9Mr Rajinder Kumar related in his statement that he is a Shift Manager with Presentation Services, CBD. He stated that he knew Mr Borg as he is sometimes under his supervision. He stated that on 15 February 2011 he commenced duty at 9.00pm at Central. At 9.15pm he received a telephone call from Mr Borg saying that he had an argument with the Duty Manager (Mr Sharma) at Redfern because he was running late. 10Mr Borg stated that he had informed shift manager Mohammad that he was running late due to a theft at his sister's place. He stated to Mr Kumar that Mr Sharma told him that he should have informed him and that he refused to sign Mr Borg on at 9.00pm. Mr Sharma also advised Mr Borg that he was late the day before. This was refuted by Mr Borg as Mr Borg stated that he was at the station on time but that the Station Manager's door was locked. 11Mr Borg told Mr Kumar that he was called a liar and then they started an argument. Mr Borg denied that he was a liar . Mr Sharma told Mr Borg that he would call the Police because the argument was getting loud. 12Mr Kumar stated that he then called Mr Sharma who told him that he had been threatened by Mr Borg and that he was standing by his complaint to the Station Manager. 13Mr Kumar then contacted Mr Borg and requested that he come to Central to see him. When he arrived he was asked to put in writing his version of events. 14Mr Ibrahim Baskharoun stated that he is a Customer Service Attendant with Redfern station being his home station. On 15 February 2011 he stated that he was rostered to work between 2.00pm and 10.00pm as a Station Support Officer. These duties are administrative and he is located in the Station Support Office which is adjacent to the Station Manager's Office. The sign on book is on the front desk. After 9.00pm Mr Borg came into the room and stated to Mr Sharma not to sign him in late as he had spoken to his boss and informed him. Mr Sharma responded that this was wrong as he had to ring the station and that he had signed him on late duty yesterday because he was late by 15 minutes. Mr Borg replied that he did not come late but was at the station. Mr Sharma responded that he came to sign on 15 minutes late. 15Mr Borg then appeared to get angry and raised his voice and stepped towards Mr Sharma. Mr Baskharoun stated that he only had a partial view as there was a partition between him and Mr Borg but from his face and his voice he was angry. When Mr Borg stepped towards Mr Sharma they were close about one step. When Mr Borg stepped towards Mr Sharma , Mr Sharma reacted by stating that if he was threatening him, like that he would call the Police. Mr Sharma told him "Are you threatening me ?." Mr Borg then left and went outside. 16At about 10.45pm Mr Borg came back into the office and put his radio back and signed off without talking to anyone. 17Mr Sham Sharma stated that he had been employed by RailCorp for the last 19 years. His present position is Duty Manager at St James Station but he is sometimes located at other stations including Redfern. Part of his responsibilities is to sign on and off staff during his shift. 18He stated that on 14 February 2011 he was rostered 2.00pm until 10.00pm shift at Redfern Station. Mr Borg was rostered from 6.00pm to 5.00am. He was originally rostered to commence at 9.00pm but that had been crossed out. At 6.00pm Mr Borg had not arrived and the morning Presentation Services Attendant had signed off and was waiting for Mr Borg's arrival. At 6.15pm Mr Sharma said he was standing outside the station Manager's office when Mr Borg arrived and entered the office. He followed Mr Borg into the office and noted that Mr Borg had signed himself in at 6.00pm. Mr Borg had made no amendments to starting time showing that he had arrived 15 minutes late. When Mr Sharma brought his lateness to his attention, Mr Borg responded that he had been at the Station Master's office at 6.00pm but the door was locked. Mr Sharma advised Mr Borg that the door was not locked and that he and the morning Presentation Services Attendant had been waiting for him. Mr Sharma then amended the time to 6.15pm. 19On 15 February 2011 Mr Sharma stated that he was again at Redfern station commencing work at 2.00pm. Mr Borg was rostered to commence at 9.00pm. Mr Borg came into the room at 9.06pm and signed the book at 9.00pm, making no amendments that he was late. Mr Borg stated that he had rung his supervisor and for Mr Sharma not to sign him in late like yesterday , docking him 15 minutes. Mr Sharma confirmed to Mr Borg that he had been 15 minutes late yesterday. 20Whilst talking Mr Borg collected a radio. 21Mr Sharma then stated that Mr Borg became very angry. He appeared to tense up holding his arms by his side with fists clenched. Mr Borg's facial features turned to anger and became red. Mr Sharma stated that Mr Borg had been standing close to him and then he stepped closer towards him with a gesture of readiness to fist fight. It was Mr Sharma's fear that Mr Borg may physically harm him. 22Mr Sharma stated that he then told Mr Borg that if he threatened him like that he would call the Police. Mr Borg then stepped back and then came forward again towards Mr Sharma. Sensing his intention Mr Sharma then stepped back and walked inside towards the Station Support Officers office. Mr Borg then left the room and Mr Sharma attested him on duty at 9.00pm, noting in the remarks column that he had arrived at 9.06pm. 23Customer Service Attendant Baskharoun was seated in the Station Support Officer's office and witnessed what had occurred. 24Mr Sharma then rang his supervisor and advised him what had taken place. The supervisor said he would ring the night supervisor Mr Raj. Later Mr Raj rang Mr Sharma and he recounted his story with Mr Raj advising that he would look into the matter. 25Later that night Mr Sharma was told that Mr Borg had signed off and left the station. The next day Mr Sharma checked the Attendance Book and saw that Mr Borg had returned to Redfern and finished his shift at 5.00am. 26It was Mr Sharma's view that on 15 February 2011 he feared that Mr Borg would assault him. 27Mr Mohamad Chahine stated that on 15 February 2011 he was acting in the role of Shift Manager working a 1.00pm to 9.00pm shift when he received a phone call from Mr Borg at about 8.35pm. Mr Borg stated that his sister's house had been broken into and he was thinking of not coming to work. Mr Chahine convinced Mr Borg to attend even if he would be a bit late. 28At approximately 9.05pm he stated he received two phone calls, which one he could not remember came first be it Mr Sharma or Mr Borg. Mr Sharma called asked whether Mr Borg had called him because he was running late and he confirmed that he had. Mr Sharma then told Mr Chahine that Mr Borg had got very angry with him because he thought he was going to be docked and that he felt intimidated by Mr Borg's aggressiveness and felt that he wanted to call the Police. Mr Borg reacted to this by stepping back then stepping forwarded again. Mr Chahine said that he would call the night manager Mr Raj as he was just finishing his shift. Mr Borg called him and stated that Mr Sharma wanted to dock him and was reassured that as he was only 5 minutes late he would not be docked. Mr Borg said that Mr Sharma had threatened to call the Police but he did not think he had been intimidating in any way. He admitted he raised his voice but that was in response to Mr Sharma raising his voice. Mr Chahine stated that he would leave it in the hands of Mr Raj. 29The next day Mr Chahine received a phone call from Mr Michael Armstrong the General Manager and asked for his story as to what had occurred the previous night. At the same time he also advised Mr Armstrong of previous occurrences with other Presentation Service Attendants which were similar involving Mr Sharma. Appellant's Case. 30The appellant Mr James Borg filed a statement and was subject to cross examination. Mr Borg stated that he had been employed with RailCorp since 2005 and at the time of his termination he was employed as a Presentation Service Attendant (PSA) based at Redfern station. 31He stated that he reported to his Team Leader and Presentation Services Shift Manager. He did not believe that the Station Manager (SM) and Duty Manager (DM) were his supervisors but if there was any problem with presentation then either could direct him to fix the problem. They also signed him on and off the attendance book. 32He stated that his first encounter with DM Sharma was on 30 January 2011 when he was approached by DM Sharma who asked the whereabouts of one of the other PSA and to contact her on the two way radio. On 31 January 2011 Mr Borg was in the control room having a glass of water at about 3.00am when DM Sharma came into the room and ordered him out. He advised DM Sharma that he was not feeling well. 33Later in the shift he was directed to the end of a platform to do something about a seat. He went to the end of the platform and retrieved a bottle. DM Sharma saw him later and asked why he hadn't cleaned the seat of dew. Mr Borg stated that when first instructed he didn't understand what DM Sharma had said. 34On 1 February 2011 Mr Borg wrote a report on what had occurred the previous day and emailed it to Mr Chahine, the Shift Manager. It was Mr Borg's view that it was not his responsibility to check on the whereabouts of fellow staff. 35He stated that DM Sharma would call him on a regular basis inquiring as to his location. 36On 15 February 2011, Mr Borg stated that he arrived for work about 9.00pm and sought to sign in the sign on room. He advised DM Sharma that he had earlier called his Shift Manager Mohammed Chahine who was aware that he could be running late. 37He stated that DM Sharma screamed at him saying that he should have called here and not his Shift Manager and then said " what about yesterday uh you're a liar". He agreed he was late the day before. DM Sharma then said " You're a liar, you're a liar you told me yesterday that the door was locked." Mr Borg said he replied" the door was locked and stop yelling at me. I don't like the way you are yelling at me and to stop and show some respect." 38DC Sharma then responded " Are you threatening me?". Mr Borg responded that his was not. DM Sharma then said " I have a witness you threatened me." Again Mr Borg said that he was not. DC Sharma the said " Should I call the Police." Mr Borg stated that he was going to call his shift manager. 39Mr Borg stated that at no time did he touch DM Sharma and the only time he walked towards DC Sharma was when he sought to sign on. 40Mr Borg said that he called his shift manager and left the room. Findings 41Mr Heaney for the appellant submitted to the Board the language that was used in the written allegation made against Mr Borg and subsequent written correspondence was inconsistent. 42The first correspondence dated 3 March 2011 directed to Mr Borg stated : Allegation About 2100 hours on Tuesday 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, you intimidated him by tensing your body, holding your arms down at your side with clenched fists. Your facial expression turned to anger and you stepped towards Mr Sharma causing him fear that you may physically harm him. Correspondence directed to Mr Borg dated 28 June 2011 from the A/General Manager Mr Bruzzese stated that the allegation had been substantiated and giving Mr Borg 14 days to make a submission to him before a final decision was to be made stated the allegation as being : About 2100 hours on Tuesday 15 February 2011, in the sign on room at Redfern Station, during a conversation with Duty Officer Sharma , in relation to time keeping issues, you intimidated him by tensing your body, holding his arms down at his side with clenched fists. Your facial expression turned to anger and you stepped towards Mr Sharma causing him to fear that you may physically harm him (emphasis added). The same words were used in the correspondence that terminated Mr Borg. 43Ms Robinson stated that using the word "his' instead of "your" was a clerical error and that the words used in the original allegation were what the final decision of termination was based on. She quoted from a previous case before the Board where Oakman AC stated : The Board indicated that, consistent with the principles in General Steel Industries Inc v Commissioner for Railways (NSW) and Ors. (1964) 112 CLR 125, a matter should only be summarily struck out in very clear circumstances (eg where the matter is so untenable that it cannot possibly succeed or is manifestly groundless ) and the hearing in relation to those two Allegations should proceed. The Board also noted that it was not unknown, in appropriate circumstances, for a misconduct allegation to be upheld even though not all the particulars of the allegation were made out. The Board is satisfied that the investigation was carried out by Mr John Kenny of the Investigations Unit of the respondent in consideration of the original allegation and the applicant was placed on formal notice with the same allegation. The Board is satisfied that at no time was there an allegation to answer by Mr Borg that he had physically held or touched Mr Sharma. 44The Board is satisfied that the issue of Mr Borg arriving late for work on 14 February 2011 played a part in what happened the following night. Looking at the Attendance Book it shows a time of 1800 crossed out and a time of 1815 written in. In the remarks column is written " LOD 15 mts." Whilst Mr Borg in his filed statement remarks "I agreed I was late yesterday.", that was not his stated position that day when he arrived to work. The Board is satisfied that he did not like the action of being docked 15 minutes not withstanding his response to a question from the Board that he did not mind. No one likes loosing wages for being late for work. 45Taking into consideration what had taken place the previous night and Mr Borg's arrival for work on 15 February 2011 at 9.06pm for a 9.00pm start, the Board believes set in place the interaction between Mr Borg and Mr Sharma. 46The Board accepts the evidence of Mr Chahine that Mr Borg contacted him prior to work to advise of a family situation and that he may not be able to come to work and Mr Chahine convincing him to do so. Mr Borg did the right thing in making such a call. The Board is satisfied that Mr Borg did arrive for work at 9.06pm. 47The evidence of Mr Sharma as to the verbal and physical reaction of Mr Borg during their conversation differs greatly from that of Mr Borg's evidence. That can be understandable when two persons in the heat of a verbal confrontation differ in their recall of events. 48The Board is assisted in this matter by the evidence of Mr Baskharoun who was witness to this event. Whilst he had a partial view of Mr Borg, he could see his face during this confrontation and he could hear clearly what was said by both parties. He did state that whilst the two men were standing approximately one metre apart Mr Borg did take a step forward. He therefore took himself into Mr Sharma's personal space. He did not hear Mr Sharma call Mr Borg a liar nor the comment from Mr Borg asking Mr Sharma to show so respect but did hear Mr Sharma state "If you are threatening me I'll call the Police. " The Board is satisfied that Mr Baskharoun was a witness of truth and I accept his evidence. 49In considering all the evidence that was placed before the Board, it is the Board's finding that Mr Borg did tense his body, clench his fists by his sides, showed anger in his face and that he did step forwards towards Mr Sharma. In circumstances such as that the Board can understand and accept that Mr Sharma became fearful that he may be assaulted as Mr Borg is a tall solidly built young man. The Board therefore finds that the allegation made against Mr Borg has been proven based on the balance of probability. 50The Board will now consider what is the appropriate Order to be made in this case. 51The Board thinks what also must be taken into consideration was the frame of mind that Mr Borg found himself on arrival. The Board would accept that he arrived in an agitated state having being earlier advised that his sister's house had been broken into. He had already spoken to Mr Chahine to advise him of the situation. Mr Chahine convinced him to come to work even though he may arrive a little late. Mr Chahine advised the Board that Mr Borg was correct in phoning him to advise him of his problem. 52Mr Sharma was of the belief that he should have been contacted and he told Mr Borg of his view during their confrontation. Mr Baskharoun in his evidence confirmed this comment made by Mr Sharma. No doubt this further agitated Mr Borg who believed he had done the right thing. Mr Borg believed that he was going to be docked again for arriving at 9.06pm that night. 53What the Board has found that occurred on the night of 15 February 2011 was in my view inappropriate behaviour by Mr Borg. He did not physically strike Mr Sharma nor did he use inappropriate language but he did by his manner and actions put himself in a position whereby a senior officer took offence in that he had a genuine concern over his safety. Mr Borg should recognise that such behaviour can not be accepted in a workplace situation and that to repeat such actions in the future would lead to the ultimate sanction. 54If Mr Borg had struck Mr Sharma or used inappropriate language, then the Order that the Board makes may well have been different. 55The respondent has provided Mr Borg's work record which included a Disciplinary Advice record. In summary it stated that Mr Borg was found guilty of a Breach of RailCorp Code of Conduct and State Rail Violence at Work Policy -on 25/7/07 acted in an inappropriate and aggressive manner towards another employee and was suspended without pay for 2 consecutive days. The Board was advised by Ms Robinson that an employee's file is placed before the Disciplinary Review Panel, therefore they would have been aware of this previous matter prior to making a recommendation in this matter. The Board has also taken this previous matter into consideration. 56It is the Board's finding that taking everything into consideration that the termination of Mr Borg was harsh in that it was disproportionate to the gravity of the misconduct. 57The Board therefore make the following Orders: 1.The appeal is allowed. 2.That the Rail Corporation of NSW re employ Mr James Borg within 14 days from the date of this Decision on a new contract of employment and therefore a new commencing date, at the same designation he held and same grade he was on at the time of termination. 3.That the Rail Corporation of NSW provide Mr James Borg with a final written warning concerning any future breach(s) of RailCorp Code of Conduct & State Rail Violence at Work Policy. 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: 09 December 2011