Allan Makin and RailCorp [2012] NSWTAB 2

Transport Appeal Boards New South Wales Medium Neutral Citation: Allan Makin and RailCorp [2012] NSWTAB 2 Hearing dates: 30 January 2012 Decision date: 08 February 2012 Before: Tabbaa, C. (Board) Decision: Appeal dismissed Catchwords: Requirement by Regulation to notify Employer of Criminal charges and convictions; Alleged breach of Code of Conduct by failure to notify of charge and convictions in relation to drink driving and subsequent loss of driver's licence; Suspension without pay; Was requirement to disclose unlawful and unreasonable as charges and convictions were of a private nature, incidents had occurred outside of working hours and were not connected with the employment as he did not drive during the period of disqualification? Legislation Cited: Transport Administration (Staff) Regulation 2005 Cases Cited: Hussein v Westpac Banking Corporation 59 IR 103; B Rose and Telstra Corporation Ltd U No. 20564 of 1998 [Print Q9292]; Appellant and Respondent U No. 40204 of 1997 [Print R1221]; Silling v Corrective Services NSW [2011] NSWIRComm 1056. Category: Principal judgment Parties: Allan Makin (Appellant)

RailCorp (Respondent) Representation: Appellant's representative (Appellant)

Respondent's representative (Respondent) Mr Adam Walkaden (AMWU) (Appellant) Ms Melanie Robinson (Respondent) File Number(s): TAB 1274 of 2011

DECISION

Introduction 1Mr Allan Makin, the Appellant, commenced employment with RailCorp on 15 December 1991 as a Motor Mechanic. He was promoted to the position of Plant Mechanic at the Heavy Plant Depot at Clyde on 22 November 2004 and has remained in that position since that time. 2Mr Makin's duties included carrying out repairs and maintenance to various items of machinery operated by RailCorp's Heavy Plant Section. Those duties were carried out both in the depot and at other locations within the RailCorp Network. 3Mr Makin was assigned a motor vehicle to facilitate those repairs as that vehicle carried all of his tools and equipment needed for his day to day duties as a plant mechanic. Mr Makin used that vehicle to pick up parts from suppliers and also in the field carrying out his duties as a plant mechanic. He was also approved home garaging for that vehicle and he drove it to and from his home address to the depot or to where he was starting or finishing on any particular day.