Roman Arnusch and Rail Corporation of NSW ("RailCorp") [2012] NSWTAB 1

Transport Appeal Boards New South Wales Medium Neutral Citation: Roman Arnusch and Rail Corporation of NSW ("RailCorp") [2012] NSWTAB 1 Hearing dates: 2 December 2011 Decision date: 08 February 2012 Before: Tabbaa C (Board) Decision: Appeal allowed; Alternative disciplinary imposed Catchwords: Acceptable behaviour and responsibilities; dignity and respect in the workplace; Racist, discriminatory and offensive comments to customers; Breach of Code of Conduct; Additional obligations on a Customer Service Team Leader; 29 year exemplary employment history; Character references. Legislation Cited: Transport Administration (Staff) Regulation 2005 Category: Principal judgment Parties: Mr L Heaney, Rail Tram and Bus Union of Australia (Appellant)

Ms Melanie Robinson, General Counsel and Governance, Legal Services Division, RailCorp (Respondent) Representation: Appellant's representative (Appellant)

Respondent's representative (Respondent) File Number(s): TAB 1143 of 2011

DECISION

Introduction 1The Appellant, Roman Arnusch, commenced employment with RailCorp on 14 December 1981 as a Station Assistant. He was promoted to the role of Customer Service Attendant, Grade 2, on 25 October 1998. He received a further promotion to the role of Customer Service Team Leader ("CSTL") at Central Station on 20 August 2001, a role he retained until his dismissal. 2At approximately 12.31 am on Wednesday, 10 November 2010, Mr Arnusch was walking behind a Customer Service Attendant ("CSA"), Arly Ribet up the stairs to Platform 17 at Central Station. Two RailCorp passengers, Dr Jeffrey & Mrs Cheryl Bogan, approached and asked Mr Ribet whether the Eastern suburbs trains were still running. Mr Ribet was polite and helpful and directed them to a taxi. The two customers contended that Mr Arnusch allegedly said words to the effect; " They're all Jews living in the Eastern Suburbs, they're all wealthy, they can afford to get a taxi. " 3The customers further contended that they observed Mr Arnusch laugh and make those comments several times in the presence of a number of other RailCorp customers. 4Dr and Mrs Bogan returned to the platform to speak to Mr Arnusch but could not see him and so obtained his name " Roman " from the "polite attendant", Mr Ribet. 5On Thursday, 11 November 2010, they advised their neighbour about the incident and she lodged a complaint about the rude, offensive and racist remarks of an " offensive attendant " identified as " Roman " and indicated that the Bogans would like appropriate action taken to ensure that it did not happen again. 6The complaint was referred to the Respondent's Investigations Unit for investigation. 7As a result of the investigation, Mr Arnusch was dismissed from employment on 23 August 2011 for alleged breaches of the RailCorp Code of Conduct and the Dignity and Respect in the Workplace Procedure .