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 . Issue(s) 8The alleged breaches related to the following allegation: It was alleged that Mr Arnusch breached the RailCorp Code of Conduct by engaging in unacceptable behaviour by subjecting RailCorp customers to racist, discriminatory, and offensive comments which amount to a breach of the RailCorp Code of Conduct and a breach of the RailCorp Dignity and Respect in the Workplace Procedure . 9Mr Arnusch lodged an appeal in respect of his dismissal contending that he was not guilty of the allegation specified above. 10He maintained that the comment he had made was to the effect of " they wouldn't mind getting a taxi because they have plenty of money as they were living in Bondi where a lot of rich Jewish people live" . He also maintained that he had directed that comment only to Mr Ribet and not to any customers of RailCorp. 11He further maintained that he had made the above comment in a normal tone of voice and had neither shouted it out nor repeated it. He maintained that he had not intended for the comment to be overheard by anyone else save Mr Ribet and did not believe that it was overheard by anyone else. 12The Board needs to determine whether the penalty of dismissal is appropriate for Mr Arnusch's actions on 10 November 2010. The Investigation 13A disciplinary investigation was conducted by Mr Craig Dickson from the Respondent's Investigation Unit. Mr Dickson - 13.1 obtained and reviewed the CCTV footage of the incident; 13.2 confirmed the identification of the "polite attendant" as Mr Ribet and the "offensive attendant" as Roman Arnusch; 13.3 interviewed and obtained statements from relevant persons including Dr & Mrs Bogan, CSA Arly Ribet and CSTL Jean Paul Saint Clair, who was also identified in the CCTV footage; and 13.4 obtained and reviewed file notes, briefing notes, correspondence and other general documents. 14Mr Dickson forwarded a letter to Mr Arnusch on 14 February 2011 notifying him of the allegation that he had breached the RailCorp Code of Conduct and/or the Dignity and Respect in the Workplace Procedure and setting out the particulars of the allegation. Mr Arnusch was required to respond to the allegations in writing within fourteen (14) days. 15Mr Arnusch responded on 17 February 2011 claiming that he was with CSTL Saint Clair at the time of the said customer inquiry and not CSA Ribet. He denied the allegation regarding the racist remark he had allegedly made claiming that the allegation had shocked him as it was not in his nature to call people from Bondi "Jews" or insult anyone from any other suburb or religious extraction. He submitted a number of character references in his favour. He contended that he had said words to the effect, " The last Bondi service already departed 12.10 am, they're only a night ride bus service in the corner of Elizabeth and Liverpool Street, the other option is to catch a taxi ". He recalled that the couple had looked surprised when he mentioned the taxi option. 16Mr Arnusch advised on 11 March 2011 that he would be commencing an overseas holiday on 27 March and not returning to work until 1 May 2011. 17On 6 May 2011, Mr Arnusch declined a subsequent request made by Mr Dickson on 3 May 2011 that he attend a disciplinary interview on 11 May 2011 on the basis that the word " disciplinary " connotes " wrong doing " on his part and he denied that he had committed any wrongdoing. He confirmed that he was willing to co-operate in the investigation providing he could receive the questions and respond to them in writing. He was advised, on 10 May 2011, that the investigation will continue in the absence of any verbal response by him. 18Mr Dickson concluded his investigation and forwarded his report to the Disciplinary Review Panel (the DRP) on 16 June 2011 for the latter's consideration of his finding that the allegation was substantiated. 19The evidence was reviewed by that Panel on 27 June 2011 and a preliminary recommendation was made that the Appellant should be dismissed. Mr Rino Matarazzo, General Manager-Customer Service, wrote to the Applicant on 28 June 2011 advising of that recommendation and seeking submissions in that regard together with any further information or material that the Appellant may wish to rely on within 14 days. 20In the Applicant's reply, dated 12 July 2011 and received on 5 August 2011, Mr Arnusch once again denied the allegation and again explained the circumstances surrounding that inquiry. He explained that on Wednesday, 10 November 2010, there had been an AC/DC concert and he had provided information about train services to a large number of passengers. He contended that he would not have responded to a question addressed to CSTL Ribet as it would have been rude and disrespectful to him. He further contended that in his 29 year employment he has never subjected RailCorp customers or staff to racist, discriminatory or offensive comments. 21Mr Dickson arrived at the conclusion, upon review of that response on 8 August 2011, that the Applicant had not raised any additional matters warranting investigation. 22The response was referred to the DRP, the members of which confirmed, on 15 August 2011, the recommendation of dismissal. On 15 August 2011, Mr Matarazzo signed a letter confirming that the Applicant was dismissed effective 23 August 2011 with five weeks' pay in lieu of notice. The Evidence 23Records provided by the Human Resources department of the Respondent confirmed that Mr Arnusch undertook Code of Conduct Training on 29 April 2006 and received further training and participated in RailCorp 2009/2010 Code of Conduct Briefing on 9 March 2010. 24The Respondent contended that Mr Arnusch breached the RailCorp Code of Conduct in relation to acceptable behaviour and responsibilities. 25The Respondent also contended that Mr Arnusch breached the RailCorp Dignity And Respect In The Workplace procedure when he allegedly harassed RailCorp customers. 26The Respondent pointed out that even when the Appellant admitted his wrongdoing at the late stage of the appeal, his version of events was fundamentally different to the complaint by the customers - particularly in relation to the number of times he was alleged to have repeated the comment and the volume. 27Mrs Cheryl Bogan gave evidence that she had written up her recollection of the incident on the morning after the incident. Her neighbour had used those details to forward an email to RailCorp. The email relevantly read: The other attendant (called Roman) then said, "They're all Jews living in the Eastern Suburbs. They're all wealthy; they can afford to get a taxi" and then laughed. Mr and Mrs Bogan were shocked but ignored his comment ... What tipped the situation over the edge was that as Mr and Mrs Bogan were walking away the attendant known as Roman proceeded to repeat these same comments to various groups of passengers leaving the platform. I understand that on each repetition he appeared to get louder with increasing derision in his voice, sometimes laughing and was heard to make these same comments at least four or five times. 28In her signed statement dated 13 December 2010, Mrs Cheryl Bogan relevantly stated: 10. The other male employee, male 2, then said something along the lines of "They're all jews living in the eastern suburbs, They're all wealthy. They can afford to get a taxi." The male 2employee (sic) then laughed. This comment made me feel shocked and I felt uncomfortable. 11. I was shocked at the comment but ignored it, but as we walked away this male employee continued to repeat the comments to other passengers leaving the platform. 12. As the male employee continued to repeat these comments four or five times, his voice appeared to get louder, and laughed after some of his comments. 29Mrs Bogan recounted the incident during evidence-in-chief: A. We had left the train and were just going down the stairs. We wanted to know whether the Eastern Suburbs trains were still running or whether we needed to catch a taxi, and there were two rail employees walking up, so we just stopped and asked. My husband actually asked whether the Eastern Suburbs railway was still working, and the one gentleman in front [Ribet] had said "No, they're finished, you need to catch a taxi" and he pointed out where to go to get a taxi, and the gentleman behind him who had been standing there, just said basically "They're all Jews in the Eastern Suburbs, they're all wealthy, they can afford to get a taxi" and he laughed. Q. What was your reaction to that comment? A. I just kind of looked at him thinking "That's very inappropriate" and I looked at my husband , just kind of - and looked at the other RailCorp gentleman, and also we kind of went "Err", but we ignored it and just continued our conversation. Q. What happened next? A. We proceeded to go to where we were directed, where the first gentleman directed us, and he was showing us where to go to catch the taxi, and we walked off, and then we were walking down and we heard him repeating this comment a couple times, and we sort of looked at each other and said, "This isn't right, we need to say something". So we went back to say something to him and then we actually saw him - there were a small group of people coming off the train, and he was approaching them saying it to them, but they weren't looking at him, they were ignoring him and chatting.... Q. You have explained that the first time you heard the comment you were standing on the stairs with the two customer service people What was the tone of the comment made at that stage? A. Sort of cheeky, like he thought he was being funny. Q. When you heard the comment repeated the first time, what was the tone of it at that time? A. I guess it was similar but it was getting louder. Not yelling, but definitely getting louder because we'd been walking away, and then we could hear it, and we heard it a couple more times, and that was when we decided we needed to go back and say something. And he was laughing. 30Mrs Bogan gave evidence that the Appellant was about five or six metres away from them and was standing behind Mr Ribet on the stairs. 31In a signed statement provided by Dr Jeffrey Bogan , dated 13 December 2010, he relevantly stated: 10. The other male employee, male 2, then said something along the lines of "They're all jews living in the eastern suburbs, They're all wealthy. They can afford to get a taxi." The male employee then laughed. This comment made me feel uncomfortable and offended. 11. I was shocked at the comment but ignored it, but as we walked away this male employee continued to repeat the comments to other passengers leaving the platform. 12. As the male employee continued to repeat these comments four or five times, his voice appeared to get louder with increasing derision in his voice, and laughed after some of his comments. 32In his evidence-in-chief, Dr Bogan recounted the incident as follows: A. ... We were walking down the steps, we saw two male railway employees coming up and we asked the taller of the two were the trains running to Bondi Junction, and he very politely said "No, they're not, you may have to get a taxi" and then the second of the rail attendants then said to us "They're all Jews in the Eastern Suburbs, they're all wealthy, they could all afford taxis". My wife and I were shocked, offended, but we sort of really didn't know how to react, and we kept going. He actually pointed up to where we should get the taxi. We then heard him say the same statement at least on three other occasions, laughing quite loudly, and we were walking down the steps .... we could still hear him at the top of the steps, still saying loudly exactly the same things.. and I turned around, and I looked up, and I could see him at the top, and there were a group of people coming down - two women who he was actually [talking] to and saying exactly the same thing, but laughing quite loudly, and they were ignoring him. .... Q. When you first heard the comment, what was the tone of the comment when it was said when you were there? A. He was laughing. He was, it was something that he seemed to be enjoying saying. He was laughing when he said it. Q. What was the volume of the comment? A. To us it was - when he spoke to us first of all, it seemed to be like in a normal tone, but then as he kept repeating it he got louder and louder, and he was laughing as he was saying it. 33CSA Arly Ribet provided a statement dated 8 February 2011 in which he confirmed that it was he who was with the Appellant when Dr & Mrs Bogan approached them for information regarding trains to Bondi Junction. He said he was walking up the stairs to Platform 16/17 with Mr Arnusch closely following behind him when he was approached by the Bogans who were walking down the stairs. He said they had a conversation while the Appellant was still behind him. After he had directed them to the taxi rank in Elizabeth Street, he heard the Appellant say the words, " Bondi Jew " before walking off and entering the control room. 34Mr Ribet relayed the incident during his evidence-in-chief as follows: A. ... Roman and myself were working on the country platform. I start about 10 o'clock, 10.30, and we dispatch 12.15 Wyong and 12.18 to Lithgow. From there we have a crib break. I went to my personal locker to get some coffee and some cake. From there we went to platform 16, 17 to have a cup of coffee with team leader Sinclair. And as we were walking up the stairs, there was about half a dozen customers coming down. One of the gentlemen asked me is there any more trains to Bondi Junction, I said no. He said "Where can I get a taxi?" I was directing them to the Elizabeth [street] taxi rank, I heard Roman mention "Bondi Jew", and from there Roman went into the console room, and this person was not happy with Roman's comment. He followed me and asked me for his name, so I provided his name and he thanked me and walked away, went to get his taxi.... Q. You say you heard Roman say "Bondi Jew", did you hear him say anything else at that time? A. No, because my mind was not - I did not expect him to say anything. My mind was that I wanted to go and have a cup of coffee, otherwise, you know. Q. So you weren't listening to him at that time, is that what you say? A. No, I just heard "Bondi Jew", that's it. Q. How many times did you hear him say "Bondi Jew"? A. Once. 35Mr Ribet wrote up his notes on the incident the following day and kept them in his locker. His handwritten notes included an additional comment which was not present in his typed statement. The comment read " The gentleman was not too happy with that comment ". 36In both his handwritten notes and his typed statement, Mr Ribet noted that Mr Arnusch went into the control room immediately after the comment and Dr Bogan had immediately asked Mr Ribet for his name. 37CSTL Jean Paul Saint Clair provided a statement dated 31 March 2011 in which he stated that he had been approached by both the Investigator and Mr Arnusch regarding his recollection of the incident. He had consistently advised that he could not recall any incident taking place between customers and Mr Arnusch. CSTL Saint Clair had been standing to the right of the top of the stairwell. 38Mr Arnusch contended that he could not recall the incident on Wednesday, 10 November 2010, despite being provided with details sufficient to identify the date, the time, the location, the persons who were present and exactly what he was alleged to have said at the time. He maintained that stance throughout the investigation process and did not recall the incident until he read the RailCorp's written case. 39The allegation made by the Bogans was put to the Appellant in writing on 14 February 2011. He responded in writing on 17 February 2011. He denied that Mr Arly Ribet was the other Officer with him at the time of the query claiming that it was Mr John Paul Saint Clair. He said that he had responded to the couple's query with words to the effect of, " The last Bondi service already departed 12.10 am, they're only a night ride bus service in the corner of Elizabeth and Liverpool Street, the other option is to catch a taxi ". He said the couple appeared surprised when he mentioned catching a taxi. He stated in his written response: Not at any stage, I made a statement that they are all Jews living in the Eastern Suburbs and all of them wealthy and can afford to catch a taxi. It's not my nature to call people from Bondi Jews or any people in the other suburbs insulting words. I respect customers, it doesn't matter what suburb they come from or any religion. Clearly, I would like to state when approached by customers, I am always polite in dealing with them. 40In his Statement to the Board, dated 9 November 2011, Mr Arnusch stated that it was while he and Mr Ribet were walking away from the Bogans that he commented to him, in a normal tone, that " they wouldn't mind getting a taxi because they have plenty of money as they were living in Bondi where a lot of rich Jewish people live ". He said he meant it as a light-hearted joke, directed it only at Mr Ribet and did not repeat it. He could not think of any other explanation for it save that it was the type of comment made by a fellow employee of theirs who lives at Bondi. 41In his evidence-in chief, Mr Arnusch admitted that he made the statement but had directed it only at Mr Ribet and did not expect the Bogans to overhear him. After the Bogans had moved on, he was answering queries from other passengers and conversing with them, in his usual fashion, about the concert they had attended. He was adamant that he had not made any further remarks about the Bogans. 42During cross-examination, Mr Arnusch again stressed that he had not intended the Bogans to hear him, " because I was not close to the customer in the first place, I was behind Mr Arly Ribet, and because there's a lot of - the trains pulling in and out and there's a lot of people at that time went down the stairs and it was very very noisy, so I was not going to specifically direct that comment to anybody else than just to Mr Arly Ribet. " Q. Are you saying that they [the Bogans] are lying about their evidence? A. Well look, it's not for me to decide if they are lying or not, it's not my decision. I am telling you the trains are coming in and out on platform 16, 17, there was a lot of people on the stairs and I was not - next to them, I was not facing to them, and it was very noisy. So what they hear and if they say they hear - if they say they heard me saying, eight times or ten times, there is nothing I can say. The only think I can say, my comment was not directed to them and I was not repeating it to them because it would not serve me any purpose. Q. So you thought you could get away with making a racist and offensive comment because it was noisy around you. Is that right? A. No, I did not think of getting away with it, ... I was busy answering inquiries at the same time as well, so if I would have made a comment four to five times it would - I would have been standing opposite them and face them, because you could not hear anybody when you are a few metres away with all the noise in the stairs and with the trains coming and going, and all the announcement with the DVI system as well. The Submissions 43The Respondent argued that the dismissal should be upheld for three reasons: 43.1 Mr Arnusch had, in denying the comment attributed to him, either lied to protect himself or had forgotten the incident as the comment he made was part of his everyday language; 43.2 The comment was of a serious nature coupled with the fact that it was overheard by passengers who considered it to be offensive and racist; and 43.3 It is not in the public interest for a person who has repeatedly made a racist and offensive comment, without awareness of the impact of that comment upon the public, to remain in a customer service position in the employ of RailCorp. 44The Respondent also argued that the attempt by the Appellant to put the blame on another employee by insinuating that the latter was racist was inappropriate and unsuitable mitigation of his actions. 45Mr Arnusch has been an employee of RailCorp for 29 years and claimed that he has never subjected RailCorp customers or staff to racist, discriminatory or offensive comments. The Union submitted that there was no evidence before the Board that Mr Arnusch regularly used racist, discriminatory or offensive comments. On the contrary, all employees interviewed by the Respondent and all the references tendered in the proceedings stated that Mr Arnusch is courteous and polite in dealings with them and the public generally. It was contended that, if he is punished and returned to work, it would not only serve as a lesson to him but would enable him to pass on the lesson he has learned to other employees of RailCorp. 46The Union contended that Mr Arnusch was not dishonest and had not lied or attempted to evade responsibility for his comments for the following reasons: 46.1 Mr Arnusch was not advised of the problem that occurred on 10 November until 16 December 2010 and he was not provided with any details of the allegation until 14 February 2011. In the interim, he had assisted countless passengers with the exact same enquiry. 46.2 The night of 10 November 2010 was quite unremarkable as far as Mr Arnusch was concerned and therefore there was no reason for him to recall the incident in the absence of specific details; 46.3 When the details were eventually provided to him, Mr Arnusch tried to recall an incident involving an altercation or an argument and could not. He could only recall that the passengers looked surprised at the suggestion that they take a taxi; 46.4 Mr Arnusch did not believe that the Bogans had heard his comment and therefore had no reason to recall the comment or believe that the comment was related to the complaint made against him; and 46.5 Mr Arnusch has attended counselling since the incident to help understand his actions and the hurt his words can cause and to help him to deal with impact the dismissal has had on his personal life and financial position. 47The Union submitted that once Mr Arnusch became aware of the details of the allegation, he accepted that he did make the comment or a comment substantially the same as the alleged comment. 48The Appellant contended that the comment was out of character for him and that he was disappointed and embarrassed that it had been overheard by passengers and had learned from the experience. 49The Appellant admitted that the comment was offensive and racist to Dr and Mrs Bogan and wished to apologise to them and anyone else who overheard the comment and was offended by it. He undertook not to make such a comment again or allow himself to be part of a conversation when such comments are made. 50While the Union did not seek to excuse or condone the comment, or to detract from the understandable hurt that the comment caused the Bogans, and while the union believed that it was appropriate to deliver some form of justice to the passengers, the Union felt that dismissal was not an appropriate way to remedy the wrong done by the Appellant. Dismissal, it was submitted, would be akin to ending his working life, given his age and experience, and would have a devastating effect on him and his family. Mr Arnusch had given evidence that he had taken out a mortgage on his home the day before his dismissal and has a son and a daughter to support in addition to supporting his in laws with medical and other expenses. 51The Union suggested that a financial penalty may be more appropriate in the form of a fine or a suspension, and a requirement to attend further counselling in relation to this sort of behaviour and a requirement to provide an apology by whatever means the members of the public would require. Findings 52The evidence indicates that Mr Arnusch was proceeding to the console room on Platforms16/17 for his crib break. He was following CSA Ribet up the stairs when the Bogans met them as they were proceeding down the stairs. 53Their query was directed to CSA Ribet. The evidence does not indicate any conversation between the Bogans and the Appellant. The Appellant said that when he made the offensive remark, he was standing behind CSA Ribet, the remark was directed at him only and the Bogans were not intended to hear it. 54Whether the remark that Mr Arnusch made was in the terms as described by CSA Ribet, or the Bogans or the Appellant himself, it was racist, offensive, uncalled for and completely inappropriate, particularly for someone in a Customer Service position with RailCorp. 55Mrs Bogan gave evidence that when the remark was first made, they were face to face with him and his tone was " fairly soft " and it got louder as he repeated it as they were walking away. Dr Bogan described the tone when the remark was first made as " normal " but it got louder and louder as he kept repeating it. CSA Ribet said he heard the Appellant say " Bondi Jew " once before walking away and entering the control room. CSTL Saint Clair can be seen in the still pictures to be standing at the top of the stairs. He gave evidence that he could not recall any incident between customers and Mr Arnusch. 56Even if Mr Arnusch is to be believed that the comment was intended for CSA Ribet's ears only, supported by Mrs Bogan's description that it was said in a " fairly soft " tone, I still find that the comment was racist, offensive and inappropriate bearing in mind the Bogans did hear it and the comment was made to a junior officer by a team leader. 57The Bogans said that as they walked away they observed Mr Arnusch laughing and repeating the remark to other customers. CSA Ribet's contemporaneous note indicated that Mr Arnusch proceeded immediately to the console room after making the comment. It also indicated that the Bogans followed him and asked him for the Appellant's name. Mr Arnusch said he continued to answer queries by other passengers. The CCTV footage does not confirm the evidence given by Mr Arnusch. There were about six customers of RailCorp walking past and none had approached him, looked in his direction, or appeared to notice him which would confirm the evidence provided by Mrs Bogan. There was obviously no audio with the CCTV footage and therefore one cannot confirm whether or not Mr Arnusch was saying anything to the other customers at large. 58RailCorp contends that Mr Arnusch breached Sections 2 and 6 of the RailCorp Code of Conduct titled, "Acceptable behaviour and responsibilities". 59Those sections relevantly provide: 2 Acceptable behaviour and responsibilities "We are all responsible for behaving positively" RailCorp employees, contractors and consultants are to comply at all times with the behaviours outlined in this Code of Conduct. You are also to adhere to the following general principles: * .... * Always act in the best interest of RailCorp * Maintain and promote high levels of acceptable behaviour * .... 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, enterprise/collective agreements, awards, policies, procedures, ruled and job requirements. In your work at RailCorp you must: * .... * Treat members of the public and colleagues fairly, consistently and with respect. 6. A discrimination, harassment and bullying-free workplace "We value equity and diversity in the workplace" RailCorp is required by law to provide a work environment that is free from harassment, discrimination, victimisation and bullying. You must not discriminate, victimise, intimidate or harass any other employees, contractors, consultants or members of the public for any reason including but not limited to: * .... * Race (including ethnic, religious or national origin) * .... Harassment is a form of discrimination. It is any unwanted, unwelcome or uninvited behaviour that make a person feel humiliated, intimidated or offended. Harassment is not always intended. Bullying may or may not be harassment or discrimination, but nevertheless, creates a hostile or unpleasant environment, and may result in a breach of Occupational Health and Safety legislation. .... 60Setting aside whether or not he repeated the racist comment, on the admissions made by Mr Arnusch, he clearly breached the Respondent's Code of Conduct when he made the initial comment, irrespective of which version is alleged. 61RailCorp also contended that Mr Arnusch breached Section 6 of the RailCorp Dignity And Respect In The Workplace procedure . 62The procedure relevantly provides : 6. What is harassment? In terms of anti-discrimination law, harassment is any form of behaviour that * a person does not want; * offends, humiliates or intimidates the person; and * targets a person because of their .... a race ... * .... Harassment is against the law - and is a breach of the RailCorp Conduct of Conduct. The fact that harassment is not intended doesn't mean that it is not unlawful or that it is not a breach of the Code of Conduct. The impact of the behaviour on the person concerned is the most important issue. It does not matter if most people present (including the person "targeted") do not (or appear not to) take offence at the behaviour. If any person present takes offence because the behaviour targets, or could target them, on any of the grounds listed above, ... it may constitute harassment of that person. 6.1 Examples of harassment The following behaviours would be examples of harassment and breaches of the Code of Conduct: * ... * verbal abuse or comments that put down or stereotype people because of their .... race, .... and so on. * jokes based on ... race; * offensive gestures based on race.... * ignoring, isolating or segregating a person or group of people because of their ... race and so on. ..... Anyone can be harassed, including people of any age or race, or women or men.... 63Also based on the admissions made by Mr Arnusch, there can be no doubt that he breached RailCorp's Dignity And Respect In The Workplace procedure . 64There can be no doubt that a penalty needs to be imposed in relation to the conduct of Mr Arnusch on the morning in question. RailCorp contends that dismissal was the most appropriate remedy in the circumstances. The Union contends that RailCorp ought to have opted for a lesser penalty or host of penalties taking into account mitigating factors applying to the Appellant. 65Mr Arnusch is a 62 year old man who has spent the last 29 years and 8 months in the service of RailCorp. He gave evidence that one of his mates at work lives in Bondi and cracks jokes about where he lives. He also gave evidence that his daughter lived in Bondi. He claimed that the comment was completely out of character for him and that was supported by references he tendered in support of his character. 66One of the references was from an eminent Queen's Counsel, dated 2007, which recalled how sensitive and responsive Mr Arnusch had been in relation to his father and how the Appellant had gone to considerable personal trouble to ensure that the writer's father was not inconvenienced by any train delays late at night. 67While the referee did not comment on the subject matter as the reference pre-dated the incident, it is relevant in that he commented on the character and work ethic of the Appellant thus - [Mr Arnusch] is a " responsible, diligent, courteous and helpful employee who is an absolute asset to State Rail ". 68Another reference was from the Station Manager Central in 2009. He worked with Mr Arnusch for a period of 10 years. Once again, while he did not comment on the subject matter as the reference pre-dated the incident, he described the Appellant as follows: .... He has an excellent service and attendance record. .... Roman has impressed me with his genuine friendly nature making him an exceptional frontline employee in customer contact and has received numerous commendations from both customers and Management in customer service excellence including formal recognition from the Minister of Transport. Roman has excellent communication skills and is multilingual.... Roman's work ethos and commitment to the job make him a highly valued employee to RailCorp. 69Yet another reference was obtained from a Supervisor, Train Crew Assignment Centre. While the reference, dated January 2011, did not mention the subject matter of these proceedings, it did shed light on the work ethic of the Appellant: Roman's customer service skills are of the highest standards and I have received many compliments and commendations from the travelling public and train crew for his out outstanding work ethics. 70There is no doubt that RailCorp has invested a great deal of time and training in the Appellant. The Respondent did not dispute the fact that he has had an unblemished record of employment prior to the incident on 10 November 2010 and thereafter until his dismissal on 23 August 2011. 71It is noted that the evidence indicated that he had taken out a substantial mortgage on his home on the day prior to his dismissal on 23 August 2011. Nevertheless, he had known, by letter to him for which he acknowledged receipt on 8 July 2011, that the Respondent was considering dismissal as the appropriate disciplinary outcome. In other words, he had undertaken that commitment in the full knowledge that he might lose his job. I therefore do not propose to take that aspect of the submissions made on behalf of the Appellant as a mitigating factor. 72I note that the Appellant has a family to support and a financial commitment to assist his in laws. Nevertheless, that is no different to any other dismissed employee. In addition, Mr Arnusch did not, in my opinion, co-operate in the Investigation of this matter and kept on denying/not recalling the allegation until he knew how much information the Respondent had regarding the incident. 73I note with concern the fact that the evidence of the Bogans was that they prepared a report on the incident together later on in the morning of the incident. I also note with concern that the statements provided by Dr and Mrs Bogan were almost identical. It is not unusual in circumstances such as this for the aggrieved parties to discuss what happened to them, nevertheless, it does taint the evidence as the recollection of one may, quite unintentionally, influence the recollection of the other. 74Taking into account the Appellant's distinguished, almost 30 year, career with RailCorp, the fact that he has no discipline history recorded against him throughout his period of employment, and the positive references and compliments about him which, as the Union stated, bore testimony to the fact he was normally diligent, courteous, helpful and respectful, and the matters set out above, I find that the penalty of dismissal is extreme in the present circumstances as it would serve to end his working life given his age and field of experience. 75A penalty is required which would convey to both the Appellant and the employees of RailCorp in general that making racist and offensive comments in the workplace is not acceptable; a penalty that would serve to deter both the Appellant and employees generally from making racist and offensive comments; and a penalty that would deliver justice to Dr and Mrs Bogan for the grief this incident has caused them. 76The DRP has available to it a number of options when considering what disciplinary action to take: - caution or reprimand; - fine not exceeding $100; - reduction in position, rank or grade and pay - suspension from duty without pay - dismissal (with or without notice) 77The Appellant's actions deserve a penalty at the higher end of the scale. He received five weeks' pay in lieu of notice at dismissal. I believe that a 26-week period of suspension without pay, applicable from the end of the notice period, would be a suitable penalty in the circumstances. 78The Union has indicated that the Appellant would be prepared to provide an apology to Dr and Mrs Bogan. The apology, in my opinion, should have been provided as soon as he found out that they had heard his comment and been aggrieved by it. It does not hinge on the outcome of these proceedings. The Bogans are most definitely entitled to an apology from the Appellant but it needs to be provided voluntarily by the Appellant. An apology is not worth the paper it is written on if it is rendered only as a result of Orders against a employee in legal proceedings. 79It is noted that Mr Arnusch obtained counselling in relation to the effect of the dismissal on his personal and financial life and also with respect to the offensive and inappropriate comment he had made about the Bogans. Nevertheless, it would be prudent for RailCorp to provide Mr Arnusch with retraining in relation to the Code of Conduct and Dignity And Respect In The Workplace Procedure prior to recommencing employment. Orders 80The Transport Appeals Board therefore orders that: (1)The Appeal is allowed; (2)The decision of RailCorp to dismiss Mr Arnusch is set aside; (3)Mr Arnusch is suspended without pay for a period of 26 weeks commencing from the end of the 5-week notice period, for which he was paid, that is from 27 September 2011 to 26 March 2012; (4)Mr Arnusch is to be reinstated to his position of Customer Service Team Leader on and from 28 March 2012; (5)A warning is to be placed on Mr Arnusch's employment record. I Tabbaa AM 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: 08 February 2012