Transport Appeal Boards New South Wales Medium Neutral Citation: Tauia v RailCorp [2011] NSWTAB 27 Hearing dates: 5 December 2011 Decision date: 22 December 2011 Before: Bishop C Decision: Appeal allowed - orders made Catchwords: PUBLIC SERVICE - discipline -rail employee - breaches of Code and policies - positive random breath test result - first failed test in 17 years - Team Leader - dismissed by employer - appeal to Transport Appeal Board - penalty too harsh in circumstances - unblemished work record - dismissal set aside - regressed from Team Leader position -unpaid suspension imposed. Legislation Cited: Occupational Health and Safety Act 2000 Rail Safety Act 2008 Transport Administration Act 1988 Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Burns v RailCorp TD09/237( 28 September 2009). Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Director of Public Employment by his Agent The Director-General of The Department of Juvenile Justice v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brown) [2008] NSWIRComm 221 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC811 George Maitland v Royal Blind Society of New South Wales [2004] NSWIRComm 368 Shane Thompson v RailCorp [2011] NSWTAB 22 Category: Principal judgment Parties: Upokoina Tauia (Appellant) Rail Corporation of NSW (Respondent) File Number(s): TAB 1133 of 2011 DECISION Introduction 1Mr Tauia commenced employment with RailCorp (and/or its predecessors) on 13 September 1993 as a Linesman's Assistant. He progressed to the position of Work Group Leader in September 2004, and held that role at Clyde Mains Depot at the time of his dismissal. (Exhibit 1-D). 2On 19 August 2011 Mr Tauia was dismissed for breaches of the RailCorp Code of Conduct and the RailCorp Drug & Alcohol Policy . 3Mr Tauia filed his appeal with the Transport Appeal Boards on 25 August 2011 and pleaded guilty to the allegation made against him by RailCorp. 4RailCorp alleged that Mr Tauia breached the RailCorp Code of Conduct and/or the RailCorp Drug and Alcohol Policy, the particulars of which are as follows: a)About 0651hrs on Sunday 5 December 2010, whilst on duty at Clyde Electrical Depot, Manchester Rd Clyde, Mr Tauia underwent a Random Breath Test which returned a positive reading of 0.060 grams of alcohol in 210 litres of breath. b)About 0728hrs on Sunday 5 December 2010, Mr Tauia attended Auburn Police Station for the purpose of a Breath Analysis which returned a positive reading of 0.070 grams of alcohol in 210 litres of breath. 5The appeal was listed for disciplinary conciliation before Commissioner Tabbaa on the 19 September 2011 at which time conciliation took place. As there was no settlement reached, directions were issued as to the filing of written cases and statements pursuant to Practice Note 22 and the appeal reallocated to the Board as currently constituted and set down for hearing on the 5 December 2011. 6At the conclusion of the hearing the Board invited the parties to exchange and file further written submissions relevant to such alternative/additional orders that the Board might deem appropriate. Both parties filed such further written submission (RailCorp - 9 December 2011 and RTBU - 15 December 2011). Background and Chronology 7On Sunday 5 December 2010, Mr Russell Bryant and Mr Wayne De Bruyn, RailCorp Drug & Alcohol Testing Officers, attended Clyde Electrical Depot to conduct alcohol breath testing. 8Mr Tauia, whose shift commenced at 6 am, underwent an alcohol breath test at 6:51am. The breath test result was positive, returning a reading of 0.060 grams of alcohol in 210 litres of breath. Mr Bryant observed that Mr Tauia "had a slight smell of intoxicating liquor on his breath, his eyes were bloodshot and his face was flushed". He formed the opinion that Mr Tauia "was slightly affected by intoxicating liquor" (Exhibit 1-E1). 9Mr Tauia was taken to Auburn Police Station where he underwent a breath analysis test at 7:28am. The test returned a reading of 0.070 grams of alcohol in 210 litres of breath. The NSW Police Force Police Breath Analysis Details Report indicated that Mr Tauia was observed to have "watery, bloodshot eyes". The Police reported that Mr Tauia appeared to be "slightly affected due to liquor" (Exhibit 1- E1.3). 10Mr Tauia was not performing safe-working duties at the time but was stood down from Railway Safety Work. 11The incident was referred to the RailCorp Investigations Unit for a disciplinary investigation to be conducted. 12On 20 December 2010, Mr Neil Wiblin, Investigator with the RailCorp Investigations Unit (RIU) sent a letter to Mr Tauia setting out the allegation and requesting that he submit a written response within 14 days (Exhibit 1-E2). Accompanying the letter was a copy of the RailCorp Discipline Policy , the RailCorp Code of Conduct and the RailCorp Drug and Alcohol Policy . 13RailCorp granted an extension for Mr Tauia to reply to the allegation letter, however, when no reply had been received by 25 Match 2011, a letter was sent inviting him to attend a voluntary disciplinary interview (Exhibit 1-E3 & E4). At this stage Mr Michael Ashwood, Investigator with the RIU had assumed conduct of the investigation. 14On 28 April 2011, RailCorp received a response to the allegation letter from Mr Tauia dated 1 January 2011 (Exhibit 1-E6). In summary, Mr Tauia relevantly submitted the following: On the evening prior to the test, he had a social gathering at his house from 6:30pm and 'ceased' the gathering at 10pm. The next morning He woke at 5 am to prepare for his shift. He felt no effects from the alcohol he consumed the night before. If intoxicated, he said that he would not have turned up to work. He regretted having consumed alcohol the night before, noted RailCorp's zero alcohol tolerance policy to alcohol or drug related activities and realised this 'one off' error could cost him his "entire career's work". He apologised for his "human error and poor decision making". 15On 3 May 2011, Mr Ashwood sent a further letter to Mr Tauia and invited him to attend a voluntary disciplinary interview (Exhibit 1-E7). Mr Tauia declined that invitation by letter of 5 May 2011 and received by email on 19 May 2011 (Exhibit 1-E8). 16Mr Ashwood considered Mr Tauia's response and also obtained an opinion from RailCorp's Chief Health Officer, Dr Armand Casolin dated 3 May 2011. It was Dr Casolin's opinion that it was likely that Mr Tauia had consumed alcohol that morning prior to his breath test at 6:51am (Exhibit 1-E12). 17Mr Ashwood found the allegation against Mr Tauia to be substantiated and on 16 June 2011 Mr Ashwood's investigation report was forwarded to the Disciplinary Review Panel (DRP) for consideration. (Exhibit 1-E). 18On 11 July 2011, the DRP convened to consider the allegation and finding and to make a recommendation. 19On 15 July 2011 Mr Tauia acknowledged receipt of a letter from RailCorp informing him that a preliminary view had been formed that he be dismissed. He was invited to provide submissions in relation to RailCorp's preliminary view within 14 days. (Exhibit 1-F). 20Mr Tauia provided a response to the preliminary view by letter dated 26 July 2011 and submitted that he was sorry for breaching the Policy and requested that his skills and experience be taken into consideration when considering penalty (Exhibit 1-G). 21The DRP reconvened on 8 August 2011 to consider Mr Tauia's response and made a final recommendation of dismissal. On 11 August 2011 RailCorp wrote to Mr Tauia informing him that he was dismissed effective 19 August 2011. Mr Tauia acknowledged receipt of the letter on 19 August 2011. (Exhibit 1-HI). 22The relevant provisions of the RailCorp Code of Conduct are as follows (Exhibit 1-JK): 2. Acceptable behaviour and responsibilities RailCorp employees, contractors and consultants are to comply at all times with the behaviours outlined in the Code of Conduct. You are also to adhere to the following general principles: Put safety first in everything we do. Always act in the best interest of RailCorp. Maintain and promote high levels of acceptable behaviour. Help to build and maintain a 'Just Culture' where employees are treated fairly and justly. As an employee, contractor or consultant of RailCorp you are responsible for the way you behave and your actions. All your decisions must be ethical and comply with legislation, awards, policies, procedures, rules and job requirements. In your job at RailCorp you must: Carry out your duties carefully, safely, honestly........ ...... etc., If you are a manager or supervisor, you have additional responsibilities. You must: Lead by example Promote the highest standards of professional conduct..." etc...... 4. Alcohol and drug free workplace 'We maintain an alcohol and drug free workplace' As part of RailCorp's commitment to safety we also require all employees, contractors and consultants to be drug and alcohol free while on duty........................... RailCorp is a drug and alcohol free workplace. All employees, contractors and consultants may be subject to random or targeted testing for drugs and alcohol. Any RailCorp employee, contractor or consultant will breach the requirement of a drug and alcohol free workplace if they return: ......... an alcohol level that is at or above 0.02% blood alcohol concentration. ... Serious or ongoing breaches may result in dismissal." 23Mr Tauia attended RailCorp Code of Conduct briefings on 22 September 2006 and 13 January 2010 (Exhibit 1-D). 24The relevant provisions of the RailCorp Drug and Alcohol Policy are as follows (Exhibit 1-L): An employee, consultant or contractor reporting to work or undertaking work with drug and or alcohol levels above these standards [for alcohol: less than 0.02% blood alcohol concentration] will be subject to counselling and/or discipline action. Serious or ongoing breaches may result in dismissal. 25Mr Fauia participated in Drug & Alcohol Testing Training on 22 April 2004. Issue(s) 26Mr Tauia pleaded guilty to the allegations but sought either reinstatement to his former position or the imposition of the lesser penalty of regression or re-employment to an alternate role. It is therefore the task of the Board to determine the appropriate penalty for Mr Tauia's conduct. Respondent's Case 27RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. 28Ms Baxter made oral submissions in addition to the written submissions as filed (Exhibit 1) and in doing so submitted that Mr Tauia had a duty of care to prevent risks to all employees and to persons entering its property or using its services and that his behaviour may have breached s.20 of the Occupational Health and Safety Act 2000 which provides as follows: 20 Duties of employees (1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. (2)... Maximum penalty: (a) in the case of a previous offender-45 penalty units, or (b) in any other case-30 penalty units. 29It was also submitted that, in the circumstances, the dismissal of Mr Tauia was a reasonable step for RailCorp to take in order to satisfy the obligations set out at s.8 of the OH&S and most particularly s.8(1)(a) and (b), and 8(2) which provides as follows: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 30It was further submitted that RailCorp was within its rights to dismiss Mr Tauia in order for RailCorp to meet the objectives of safety, reliability and efficiency, as provided by s.5 the Transport Administration Act 1988 as follows: Exhibit 1-M): 5 Objectives of RailCorp (1) The principal objectives of RailCorp are: (a) to deliver safe and reliable railway passenger services in New South Wales in an efficient, effective and financially responsible manner, and (b) to ensure that the part of the NSW rail network vested in or owned by RailCorp enables safe and reliable railway passenger and freight services to be provided in an efficient, effective and financially responsible manner. 31Ms Baxter submitted that an analysis of the evidence in this matter raised two significant concerns. 32The first concern was the increasing level of Mr Tauia's positive reading on 5 December 2010 from 0.060 at 06:51am to 0.070 at 7:28am which suggested that he was in the absorption phase of blood alcohol concentration and that he had consumed alcohol that morning prior to the first test. 33Ms Baxter went on to submit that the principle that an increasing level of blood alcohol concentration represented that an individual was in the absorption phase was widely accepted, and had been confirmed in Mr Tauia's case by RailCorp's Chief Health Officer Dr Casolin (Exhibit 1-E12). 34At the time of his positive test on 5 December 2010 Mr Tauia told the Drug & Alcohol Testing Officers that he had consumed "a few", and when pressed, "more than five" beers "last night". The Random Test: Alcohol - Contemporaneous Notes signed by Mr Tauia show that he started drinking at 6 pm the night before and finished drinking at 9 or 10 pm. The NSW Police Force Breath Analysis Details show that Mr Tauia gave a similar (but not identical) report to the Police (Exhibit 1-E). In his response to the disciplinary allegation letter Mr Tauia that he started drinking the prior evening at 6:30pm and finished at 10 pm. 35It was submitted that if it was accepted that Mr Tauia did stop drinking at approximately 10 pm on the evening prior to his positive test, then the opinion of Dr Casolin was that he would have had to have consumed approximately 10 stubbies (375ml) of full strength beer to achieve a breath analysis reading of 0.070 at 7:28am on 5 December 2010. However, as Dr Casolin had stated, the concern lay with Mr Tauia's increasing reading, which indicated that he had consumed some additional alcohol on the morning of the tests. 36It was submitted that an alternative proposition to Mr Tauia being in 'the absorption phase' of blood alcohol consumption was the possibility that the result of the breath test conducted by RailCorp's Drug & Alcohol Testing Officers at 6:51am was in some way inaccurate. RailCorp had ruled out this possibility on the basis of its calibration record, which shows that the testing device used for Mr Tauia's breath test (Lion SD400 Serial number 086844T) had been properly calibrated on 9 October 2010. The statement of Wayne De Bruyn dated 13 October 2011 was relied on and addressed this issue. (Exhibit 1-O). 37It was also submitted that in the absence of evidence from Mr Tauia to prove that the RailCorp breath testing device was faulty, or the test result inaccurate, then evidence of Mr De Bruyn that the device was functioning properly should be accepted. It also followed that the evidence of Dr Casolin that Mr Tauia was in 'the absorption phase' of blood alcohol concentration should be accepted. 38It was submitted that in those circumstances, the consumption of alcohol on the morning of a 6 am shift by Mr Tauia was likely, and rendered his actions as being more serious. 39The second concern was the high positive reading of 0.070 at 7:28am - one and a half hours after Mr Tauia commenced his shift at 6 am on 5 December 2010. Even if the evidence about his breath test result was disregarded, his high breath analysis reading at the Police Station an hour later suggested high level alcohol consumption before a 6 am shift and represented serious breaches of the Code and the Policy. Mr Tauia's statement that he felt no affects of alcohol when he awoke at 5 am on 5 December 2010 should also be noted and suggested that he was a regular and/or heavy drinker, and gave rise to a legitimate concern that he would be at greater risk of re-offending in the future. 40It was submitted that on the basis of the 7:28am positive reading alone, RailCorp was correct to dismiss Mr Tauia for his actions in breach of the Code and the Policy. 41It was submitted that Mr Tauia had pleaded guilty on his Notice of Appeal and throughout the disciplinary investigation had admitted breaching the Code and the Policy, but requested that his skills and experience be taken into consideration. 42Mr Tauia had been an employee of RailCorp for approximately 17 years at the time of his positive alcohol test and had held the position of Work Group Leader for the previous six years. The position of Work Group Leader involved the supervision of subordinate staff "in the maintenance, emergency repair and construction of high and low voltage transmission lines and 1500 volt railway overhead wiring" (Exhibit 1-C). It required Workplace Protection Officer Class 3 qualifications and is the highest Rail Safety Worker, Category One. In the position of Work Group Leader, Mr Tauia clearly had a higher level of responsibility to lead by example and to ensure that he and his co-workers complied with all safety requirements. 43It was submitted that Mr Tauia's skills, experience, length of service and knowledge of the proper policies and procedures exacerbated the serious nature of his breaches. 44Ms Baxter indicated that Mr Tauia had provided two character references with his response to the preliminary recommendation for dismissal, and whilst it would appear that he was liked by his co-workers this did not detract from the seriousness of his actions and the safety risk they posed to RailCorp and others. 45It was submitted that Mr Tauia was aware of the provisions of the Code and the Policy , and the potential penalty of dismissal, RailCorp had taken all reasonable steps to ensure that he received sufficient training and information about his obligations under the Code and the Policy and the importance of being alcohol free at work. By attending work on 5 December 2010 with a blood alcohol concentration in excess of 0.02%, he committed a serious breach of the Code and the Policy . Even more serious, was the likelihood that he had consumed alcohol on the morning of commencing a 6 am shift. 46Ms Baxter submitted that Mr Tauia's evidence was that he did not know how much alcohol he had consumed "but that he drank a lot of beer", that he didn't count and doesn't count when he is "in a party mood" but that it was likely to be more than 10 beers from around 3 to 4 p.m. until after 10 pm the night before the positive test. This represented a greater quantity of alcohol consumed over a longer period than he had previously claimed, rendering the beaches more serious than originally contemplated. 47Further, his evidence raised alarming concerns as to his understanding and/or appreciation of his responsibility to be alcohol free at work. In the circumstances RailCorp's decision to mark his file "not suitable for re-hire in any capacity" was appropriate and necessary. 48Mr Heaney had submitted that Mr Tauia possessed specialised railway related skills and that being prevented from working for RailCorp in any capacity and/or not having his RISI and CoC would make it difficult for him to obtain employment elsewhere. However Mr Tauia gave evidence that he originally qualified as an electrician in New Zealand and upon moving to Australia years ago he never obtained the certificate required to be a qualified Electrician. Nevertheless he performed electrical work on building sites in the Sydney CBD for a number of years before joining RailCorp. He said that he had made enquiries and that with a refresher course he could obtain a certificate to qualify as an electrician in Australia. Mr Tauia also admitted that he was multi-skilled and that he could find work outside of RailCorp and/or the rail corridor. 49It was further submitted that having regard to both RailCorp's and Mr Tauia safety obligations, his actions warranted dismissal and it is was not in the public interest to alter RailCorp's decision. 50Alternatively if the Board considered that dismissal was too harsh a penalty in this case then RailCorp submitted that an appropriate alternative penalty would be to allow Mr Tauia an opportunity to resign to enable RailCorp's acceptance of such in lieu of dismissal as per Burns v RailCorp TD09/237 ( 28 September 2009). 51In conclusion RailCorp maintained that Mr Tauia had committed serious breaches of RailCorp's Code of Conduct and Drug and Alcohol Policy and the Board should not alter the decision to terminate his. Further Written Submissions on Behalf of the Respondent 52In response to the directions issued by the Board at the conclusion of the hearing on 5 December 2011, RailCorp filed further written submissions on 9 December 2012. 53Ms Baxter responded to the closing submissions of Mr Heaney seeking that Mr Tauia be reinstated and/or regressed or in the alternative re-employed. Mr Heaney had noted that RailCorp's dismissal letter to Mr Tauia stated: "Your file will be marked as not suitable for re-hire high in any capacity, including (but not limited to) as labour hire, contractor or consultant" (Exhibit 1-HI) and submitted that this wording was effectively a restraint of trade and that if the Board was not minded to reinstate or regress, or re-employ Mr Tauia then it then it should order that RailCorp return his qualifications. 54Ms B axter understood this submission to mean that Mr Tauia should be allowed to retain his Certificate of Competency (CoC) and Rail Industry Safety Induction Certificate (RISI). RailCorp objected to such an order for the following reasons. 55RailCorp had obligations under the Rail Safety Act 2008 (NSW) to ensure the safety of its rail safety operations, which it pursued through a number of operational measures. The Independent Transport Safety Regulator (ITSR) monitored compliance. Section 22 of the Rail Safety Act relevantly required RailCorp to: 1)....ensure that each rail safety worker who is to carry out rail safety work in relation to the rail transport operators railway operations has a form of identification that is sufficient to enable the type of competence and training of the rail safety worker for that rail safety work to be checked by rail safety officer. 2)A rail safety worker who is carrying out rail safety work must, when requested by rail safety officer to do so, produce the identification provided in accordance with subsection (1) to the rail safety officer. 56The RISI card certifies that Mr Tauia has undergone an induction into the hazards of the rail environment. It does not certify that he is able to carry out work in the RailCorp unsupervised. 57The CoC certifies that RailCorp has assessed (and can provide evidence to the ITSR under the requirements of the Rail Safety Act ) that Mr Tauia is fit and competent to carry out rail safety work in its rail corridor and the assessed competencies are specific to RailCorp's technology and systems. 58Neither the RISI card or the CoC are a licence to work in the rail industry. They were RailCorp's form of identification to facilitate compliance with its obligations under the Rail Safety Act. 59It was submitted that the RTBU appeared to presume that retaining possession of his RISI and CoC could enable Mr Tauia to work for a labour hire company, contractor or consultant engaged by RailCorp in future. If this was the case then he was effectively seeking that Mr Tauia be allowed to perform work on RailCorp's rail corridor without RailCorp having the ongoing ability to ensure that his fitness and competencies were up to date. This would clearly conflict with RailCorp's obligations under the Rail Safety Act. 60Ms Baxter submitted that the training and competencies held by Mr Tauia at the time of his dismissal were inherently possessed by him. His training record was set out in the Resource History section of his Personnel History Report (Exhibit 1-D). The nature of the role performed by him at the time of his dismissal was set out in the relevant Position Description (Exhibit 1- C). It was a matter for Mr Tauia if he wished to utilise documents such as training records and Position Descriptions when seeking outside employment subsequent to his dismissal. 61It was further submitted employees who have been prevented from working on RailCorp's rail corridor were not prevented from working in the rail industry. Those wishing to seek employment elsewhere within the rail industry had a number of options available. Other rail industry employers including the Australian Rail Track Corporation Ltd (ARTC) which operates within, and across, NSW borders, Queensland Rail and mining related operators. Organisations such as Australian Rail Training Pty Ltd, Skilled, The Instruction Company and The Centre for Excellence in Rail Training (CERT) all offered competency based training. 62It was submitted, having regard to the matters above, that the Board should not contemplate that RailCorp return to an appellant their RISI and CoC as this would conflict with RailCorp's responsibilities for safety management as required by ITSR and under the Rail Safety Act . 63Ms Baxter again reiterated the facts of the case and submitted that the evidence was that this was not a case where a bar on the re-hire in any capacity and/or removal of Mr Tauia's RISI and CoC could be said to cause harsh or unjust detriment to him, given his circumstances. It was further submitted that the Board should not contemplate altering RailCorp's decision to mark his file "not suitable for re-hire in any capacity...." and should not consider an order for the return of Mr Tauia's RISI and/or COC for the same reasons. 64In conclusion RailCorp maintained that Mr Tauia had committed serious breaches of RailCorp's Code of Conduct and the RailCorp Drug and Alcohol Policy and the Board should not alter the decision to terminate Mr Tauia's employment. Appellant's Case 65Mr Heaney from the RTBU made oral submissions on behalf of Mr Tauia in addition to the written submissions as filed (Exhibit 2) and in doing so submitted that Mr Tauia had pleaded guilty to the allegations made against him and accepted that his actions were wrong and showed contrition and remorse. 66Mr Tauia had complied with all of RailCorp's directions since the incident. 67It was submitted that Mr Tauia's 17 years of loyal service and good record should be taken into account. 68It was also pointed out that Mr Tauia had been tested many times and had never tested positive before. He had been tested about 30 times before the incident and 5 times since the incident. 69It was also submitted that there were limited opportunities for work outside the Rail Industry should he not be able to return to his position in RailCorp. 70There was harshness imposed on Mr Tauia in relation to his work opportunities as his letter of dismissal said never to be re-employed by RailCorp, or anyone working for, or contracted, to RailCorp. This was in effect a restraint of trade. The withholding of his RISI and his CoC effectively ended his career with any rail operator in the private sector. 71On the issue of harshness of penalty, reliance was placed on the decision of the Full Bench of the Industrial Relations Commission in George Maitland v Royal Blind Society of New South Wales [2004] NSWIRComm 368. 72It was further submitted that the specialist nature of Mr Tauia's skills raised the issue of a disproportionate affect being visited on him of the imposition of the penalty of dismissal. 73The Board was asked to reinstate Mr Tauia to his former position, or if he could not be reinstated to his former position, then the lesser penalty of regression, or re-employment into an alternate role, should be considered by the Board. It was also sought that any restriction on the use of Certificates and qualifications be lifted. Further Written Submissions on Behalf of the Appellant 74Mr Heaney also filed further written submissions in response to the directions issued by the Board on 5 December 2011. 75Mr Heaney emphasised that those submissions had been prepared with respect to being able to perform work as an employee engaged to maintain overhead lines. He also noted that RailCorp owned all of the overhead railway lines in the Sydney area. 76Further, the submissions were also prepared in the light of, and the Board was referred to, the decision of the Board as constituted by Macdonald C in Shane Thompson v RailCorp [2011] NSWTAB 22. In that decision the following order ( inter alia ) was issued: RailCorp is to provide to the appellant his Certificate of Competency and Rail Safety Induction Certificate, within seven (7) days of the date of this decision. 77Mr Heaney asserted that in the Thompson case RailCorp provided an altered certificate of Competency and Rail Industry Safety Induction Certificate with the words - 'not for use on RailCorp property' printed on them. 78It was submitted that Mr Tauia would require both the RISI and CoC to be handed back and there would need to be an order that required RailCorp not to alter the certificate or take detrimental steps to prevent him from accessing work with another employer or contractor who accessed RailCorp property. 79In reply to RailCorp's further submission Mr Heaney submitted that RailCorp had said that this case was in some way different and more serious because of the nature of Mr Tauia's alcohol-related incident. The insinuation was that RailCorp was justified in marking Mr Tauia's file as ...'not suitable for re-hire in any capacity, including (but not limited to) as labour hire, contractor or consultant'. 80It was submitted that RailCorp placed this statement at the end of every dismissal letter. They made no distinction when dismissing an office worker, or a safety critical employee such as Mr Tauia. Mr Tauia's did have that restriction placed upon him as a result of the safety requirements that were necessary for access to the rail corridor. He had those restrictions because he once worked for RailCorp. Had Mr Tauia been dismissed for poor attendance the same restriction would have been placed upon him. 81It was further submitted that Mr Tauia accepted that RailCorp must have confidence that the people who are working on their property were going to do so safely. An employee with almost 18 years experience, a clean record and who had been dismissed for an alcohol-related matter was very unlikely to re-offend. 82It was submitted that Mr Tauia was for 18 years an incredibly valuable employee for RailCorp. He was diligent and maintained a clean record for drug and alcohol tests over that time. 83In conclusion it was submitted that if Mr Tauia's RSI and CoC certification were not returned to him he would never again have the chance to perform his trade or his skills on overhead railway lines. The Evidence 84RailCorp relied on the statements filed as part of their written case and their was no requirement for cross examination. 85No challenge was made against the factual information contained in those statements and they are referred to in the Background and Chronology above. 86The RTBU called Mr Tauia to give oral evidence in addition to the witness statement as filed (Exhibit 3) and he was subject to cross examination from Ms Baxter . 87Mr Tauia did not dispute the factual events as set out in the Background and Chronology above and summarised in his response to RailCorp's 'show cause' letter. 88He deposed as to additional detail of the events of 4 December 2010 where he had a family gathering involving his partner, his son and daughter and around 15 family friends. He had commenced drinking beer at around 3 to 4 pm that day while preparing his yard and the food for the event. They started the evening at around 6 pm, with most of the guests arriving around that time. He continued to eat and drink beer throughout the evening. Most of the guests had left his residence by 10 pm and no later then 10:30pm that night. He then cleaned up his backyard which took a reasonable amount of time. To the best of his knowledge he was in bed by no later than 11:30pm. 89Mr Tauia said that he woke up the next morning at 5 am and recalled that he felt fine and able to go to work. He did not consume any alcohol that morning. His last beer would have been some time around 10 pm the night before. 90Mr Tauia acknowledged that he could not recall how much beer he had drunk that night - "it was a lot", he didn't count, it could have been more than 10 beers (VB stubbies), and he could possibly have drunk beer after 10 pm but maintained that he did not drink beer in the morning before he went to work. 91Mr Tauia said that he took prescription medication for high cholesterol and high blood pressure. 92Since the incident Mr Tauia had attended the 5 counselling sessions available through RailCorp and had learnt much about the affects of alcohol. He now realised the implications of drinking alcohol and that it could stay in his system. He had also had three medical checks with RailCorp and had been okay each time. 93He had also been further breath tested on 5 occasions since 5 December 2010 and had tested negative on all occasions. Over his career with RailCorp he thought he had been tested about 30 times and had never tested positive before. 94He accepted that what he did was wrong and was very sorry. 95He acknowledged that he understood the Code and the policy concerning the holding of a Rail Safety Working Card. He also acknowledged that in his role as Workgroup Leader it was his duty to set an example to others. He was also Level 4 Protection Officer. 96Mr Tauia indicated that in his role as a Workgroup Leader he worked primarily with overhead electrified rail lines. This was a very specialised position and did not exist anywhere but in RailCorp or on RailCorp owned assets in NSW. He performed maintenance of overhead wiring, corrected faults on overhead line, and performed work on very high voltage lines. 97Mr Tauia said that he was not a qualified electrician but had been an electrical worker for some 33 years. His qualifications related directly to overhead railway lines. He had obtained trade qualifications some 30 years ago in New Zealand but had never had them recognised in Australia. Before joining for RailCorp he worked in the City as an electrical worker but under the supervision of a qualified Electrician. When he joined RailCorp he went to the Training College at Chullora where he was trained to qualify as a Linesman. 98Mr Tauia was also concerned that RailCorp had stated in their letter of dismissal that he was not to be re-employed and his file marked 'not suitable for re-hire in any capacity, including but not limited to as labour hire, contractor or consultant'. He said that if this was to be the case there would be nowhere he could use his skills in NSW. 99He acknowledged that he could go back to TAFE and get qualifications but would need to do a 'refresher course'. He also acknowledged that his training and work at RailCorp meant that he was multi-skilled. 100Mr Tauia had provided letters to RailCorp expressing his regret and sorrow for his actions and asked that RailCorp take these into account. 101Mr Tauia said that he had always been a loyal and diligent employee for RailCorp. and put RaiICorp ahead of his family. He had always made himself available for non-rostered call outs, emergency breakdowns and had attended many accident situations and fatalities. The witnessing of several fatalities and the clean up work had left a scaring impression on him and was something he would never forget and had to live for with the rest of his life. 102He wanted to continue his employment for many years to come and knew that if given the chance this would be a one off event. He only asked to be provided with the opportunity to prove this to RailCorp. Findings 103This is an appeal under clause 43 of the Transport Administration (Staff) Regulation 2005 against RailCorp's decision to impose the punishment of dismissal on Mr Tauia. Section 23(1) of the TAB Act provides that the Board may decide to allow, or disallow, the appeal, or make such other decision as it thinks fit. 104In this appeal Mr Tauia pleads guilty to the allegations made by RailCorp concerning his breaches of the RailCorp Code of Conduct and RailCorp's Drug and Alcohol Policy that occurred on the 5 December 2010. The Board's function in this appeal is, in effect, to determine whether the disciplinary punishment imposed by RailCorp in relation to those breaches is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. 105There is no real dispute as to the facts and what occurred on 4 and 5 December 2010. The only issues of debate that arise relates to just how many beers Mr Tauia consumed at his informal family gathering on 4 December and whether or not he did stop drinking at 10 pm. 106The Board accepts Mr Tauia's evidence that he did not drink after midnight or in the morning before he reported for work. The Board found Mr Tauia to be an honest witness who was genuinely remorseful for his actions and clearly did not realise the implications of the amount of alcohol he consumed on 4 December 2010. 107The Board also accepts that Mr Tauia simply cannot recall accurately how many beers he had (which were consumed in a social family gathering context), rather than having any intention to mislead either RailCorp, the Police, or the Board in any way. 108Similarly, the Board does not consider that Mr Tauia intentionally reported for duty while he was not alcohol free. He genuinely considered that he was okay to report for work. 109The Board also accepts that Mr Tauia has expressed remorse and regret for his actions and "poor decision making" and undertaken to "cooperate fully" with any means to rectify the situation and maintain the integrity and policies of RailCorp. 110The Board considers that on the evidence he has cooperated fully with whatever has been required of him since the incident of 5 December 2011 and the Board considers that he will continue to perform his duties in a diligent manner and more mindful of the policies with which he needs to adhere to in the future. 111It is quite clear to the Board that Mr Tauia has benefited greatly from the counselling sessions he attended following the incident and now has a more comprehensive understanding of the effects of alcohol on his system and what he must do in the future to ensure he remains alcohol free in the workplace. 112The Board considers that it is extremely unfortunate and regrettable that Mr Tauia only came to that understanding as a consequence of the counselling following the incident and not through appropriate, and more consistent and systematic drug and alcohol education and training provided by RailCorp. 113On RailCorp's own evidence Mr Tauia's last Drug and Alcohol Training was in 2004. That is simply not good enough. What is the point of having a comprehensive Drug and Alcohol Policy that provides for a zero tolerance workplace, and very comprehensive random testing regime, with what is essentially a 'one strike and you are out' result, if employees are not properly educated and trained as to what they ought to be doing to ensure they are drug and alcohol free in the workplace? It is all very well to say that employees need to take responsibility for their own actions, and that is of course true, but that can only be properly done if an employee is appropriately informed with comprehensive information and with the message/information being reinforced on a reasonably frequent basis through follow up training and refreshers, tool box meetings etc., (and certainly not with a gap of some 6 years). Such training should not be a once-off event with employees expected to carry on being aware of what they must do over subsequent years. The Board also notes that RailCorp, unlike some employers/industries with which the Board is very familiar has somewhat general information rather than the very specific and detailed information (such as how many drinks should only be consumed on a work night, how many hours must elapse etc.) that such employers convey to their employees 114Whilst the Board appreciates that alcohol affects individuals differently and is dependent on a variety of factors (including what medication an employee may be taking or any other health condition they may have etc.,) nevertheless, it is possible to give more prescriptive advice/guidelines to assist and educate employees in that regard. 115The Board also considers that to then put an employee through the expense of counselling so that such employee then becomes fully aware of their actions and what they need to do in the future only to dismiss an employee after that process has been completed (and some 9 months later and after 5 negative breath tests have been carried out) frankly just beggars belief. 116If RailCorp considers it has a responsibility/role to assist in the rehabilitation of an employee who has either tested positive to a drug/alcohol test or who comes to RailCorp seeking assistance with a problem in that regard, then the Board is of the very firm view that it should be an integral part of that process to give an employee a second chance to prove himself/herself and to show that they have indeed learnt from the experience, understood what is required of them (and just what they need to do/not do, to remain alcohol/drug free in the workplace) and are committed to complying with relevant policies in the future. 117This would ensure that the not inconsiderable investment RailCorp has made in training up a skilled employee to carry out the very specific work required across RailCorp from employees with many years unblemished service is not just thrown away in circumstances where an employee has can learn from their one transgression and go on to provide valuable and skilled service to Railcorp. 118The Board notes that in this appeal there was no informed evidence as to whether or not the medication Mr Tauia was prescribed and taking for his medical conditions affected in any way the absorption of alcohol in his system. In future appeals this may be an issue that needs to be addressed depending on the circumstances of the appellant under consideration. 119There was no dispute that Mr Tauia had an unblemished employment record with 17 years service with RailCorp. He had obviously worked diligently and in doing so had progressed to Work Group Leader. The Board accepts that in such a position and with such length of service there is, rightly, an increased expectation that an employee will not only adhere to an employer's policies but also be an example to those that he leads. However that must be weighed and assessed against the background of the observations made above about the necessary education and training (not merely enforcement) that ought to be undertaken by an employer to ensure a drug and alcohol free workplace. 120The parties were invited to make further submissions concerning possible orders covering the provision of Mr Tauia's RISI and CoC. The Board now has serious concerns arising from those submissions. 121Firstly, the assertion by the RTBU that RailCorp has altered the RISI and CoC of Mr Shane Thompson as a consequence of the orders issues by Macdonald C. That is of very serious concern. It is totally inappropriate for any employer to alter or amend orders issue by the Transport Appeal Boards, and if it is true, then that is what RailCorp have effectively done. If there is a problem with orders issued as to their ability to be given effect then either party can approach the Secretary of the Board to enable the matter to be re-listed before the appropriate Board member for further clarification of the orders so issued. 122RailCorp in its written submissions raised issues about its ability to comply with the provisions of the Rail Safety Act if they were ordered to return an appellant's RISI and CoC and such person were able to then work for a contractor on the rail corridor. Given that RailCorp has contractors already working for them in and around the rail corridor and some of those contractors may utilise labour hire, then the Board would have presumed that RailCorp had in place appropriate systems to ensure that contractors and their employees were appropriately safety certified and carried out work in accordance with the OH&S Act and any other relevant Acts. 123The Board would also have thought that in fact former employees of RailCorp with their broad ranging, extensive and relevant training could conceivably provide a better quality workforce than those outside employees who had not had the benefit of having worked for, gained their competencies with, and been trained by RailCorp. 124The second concern raised by the RTBU further submissions is that any employee who is dismissed by RailCorp for whatever reason (even poor attendance or work performance) has their file marked essentially never to be re-hired by RialCorp or anyone working for RailCorp then that is somewhat harsh and exceeds what generally applies across the public sector where such would usually only occur in the case of misconduct (in the wilful and serious sense). 125These are clearly issues (in particular the first mentioned) that may require further consideration in some future appeal with appropriate evidence and submissions. 126The Board does have concerns at Mr Tauia's ability to gain on-going employment in his area of expertise, given his age, lack of formal qualifications in Australia and his length of fairly specific and narrow work experience with RailCorp. 127The Board also considers it of significance that Mr Tauia had been tested approximately 30 times before the incident without any problem and even or even more significance 5 times since the incident and tested negative on all occasions, he has also successfully undergone three medical checks. 128The Board has also noted the counselling that Mr Tauia has undertaken and which has clearly had a beneficial and salutary effect. 129The Board has carefully considered the particular facts and circumstances of this appeal and has been mindful of the need to consider the public interest per the decision of the Full Bench of the Industrial Relations Commission in Director of Public Employment by his Agent The Director-General of The Department of Juvenile Justice v Public Service Association and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brown) [2008] NSWIRComm 221. The Board does not consider that it would be contrary to the public interest to issue the orders it intends to issue. Indeed it is considered to be in the public interest to continue the employment of a skilled and valuable employee who has 17 years unblemished service with RailCorp and has clearly learnt from his mistake and will not transgress in the future. 130The Board has also been mindful of the tests in relation to harshness of penalty even where an employer has a legal right to dismiss an employee for their conduct as enunciated by the Full Bench of the Industrial relations Commission in cases such as Department of Health v Perihan Kaplan [2010] NSWIRComm 65. 131In all the particular circumstances of this case, as dealt with above, to dismiss Mr Tauia from his employment with RailCorp would be disproportionate to the breaches of Code and Policy involved. Regression from the position of Work Group Leader combined with an unpaid suspension of one month is, in the Board's opinion, the appropriate punishment to impose on Mr Tauia for his conduct. 132RailCorp's decision to dismiss Mr Tauia effective from 18 August 2011 will be set aside and Mr Tauia reinstated without any loss of continuity of employment but regressed to a position in rail traction work immediately below that of Work Group Leader. He is entitled to an order for RailCorp to back pay him for the period from his dismissal up to the date of this decision. The order for back pay will need to be adjusted to take into account the period of suspension without pay imposed by the Board. 133Should there be any issue as to the position to which Mr Tauia is to be regressed, then that matter should be brought to the attention of the Secretary of the Board for appropriate referral and further consideration by the Board if necessary. Order(s) 134The Board makes the following orders in relation to the appeal (TAB11/1133): (1) The appeal is allowed; (2) The decision of RailCorp to dismiss Mr Tauia with effect from 19 August 2011 is set aside and he is reinstated to employment with RailCorp but regressed from the position of Work Group Leader to the next lowest applicable position at Clyde Mains Depot without loss of continuity within 14 days; (3) Mr Tauia is suspended without pay for the period from 19 August 2011 to 19 September 2011 (inclusive); and (4) RailCorp is to make a payment within 14 days of the date of this decision to Mr Tauia of the amount of pay he would have received in the regressed position from RailCorp, from 20 September 2011 to the date of this decision, but for RailCorp's decision to dismiss him. Elizabeth Bishop 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: 01 March 2012