Transport Appeal Boards New South Wales Medium Neutral Citation: Walters v RailCorp [2012] NSWTAB 3 Hearing dates: 15 December 2011 Decision date: 23 February 2012 Before: Bishop C (Board) Decision: Appeal allowed - orders issued. Catchwords: PUBLIC SERVICE - discipline -rail employee - breaches of Code and policies - positive random breath test result - first failed test in 10 years - rail infrastructure worker- dismissed by employer - appeal to Transport Appeal Board - dismissal too harsh in all relevant circumstances taken into account - dismissal set aside - reinstated - regressed a grade -unpaid suspension of 16 weeks imposed. Legislation Cited: Occupational Health and Safety Act 2000 Rail Safety Act 2008 Rail Safety (Drug & Alcohol Testing) Regulation 2008. Transport Administration Act 1988 Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Arnusch v RailCorp [2012] NSWTAB 1 Bates v Commonwealth of Australia (Department of Defence) [2009] AIRC 899 Burns v RailCorp TD09/237( 28 September 2009). Crutcher v RailCorp [2011] NSWTAB 15 Daley v GWA Group Ltd T/A Dux Hot Water [2011] FWA 6993 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 Gane v Rail Corporation New South Wales [2010] FWAFB 3788 Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 Thompson v RailCorp [2011] NSWTAB 22 Tauia v RailCorp [2011] NSWTAB 27 Category: Principal judgment Parties: Russell Walters (Appellant) Rail Corporation of NSW (Respondent) File Number(s): TAB 1259 of 2011 DECISION Introduction 1Mr Walters commenced employment with RailCorp and/or its predecessors on 17 August 2001 as an Infrastructure Worker. He became a Construction Worker 3.1 in April 2005 and held that position at Homebush as at the time of his dismissal (Exhibit 1-D). 2On 8 September 2011, RailCorp dismissed Mr Walters for breaches of the RailCorp Code of Conduct and the RailCorp Drug & Alcohol Policy & Procedure. 3Mr Walters filed an appeal with the Transport Appeal Boards on 15 September 2011, pleading guilty to the following allegation (Exhibit 1): "On Sunday 20 March 2011 at or about 0824hrs, while on duty at Lithgow, Mr Walters undertook a random breath test, which returned a positive reading of 0.052 grammes of alcohol in 210 litres of breath. Mr Walters then attended Lithgow Police Station and at or about 0945hrs you undertook a breath analysis, which returned a positive reading of 0.041 grammes of alcohol in 210 litres of breath." Background and Chronology 4On Sunday 20 March 2011, Mr Russell Bryant, RailCorp Drug & Alcohol Testing Officer, attended a worksite on the down side of Lithgow Coal Stage signal box to conduct random breath testing of employees. 5Mr Walters, whose shift commenced at 6am, underwent an alcohol breath test at 8:24am. The breath test result was positive, returning a reading of 0.052 grammes of alcohol in 210 litres of breath. Mr Bryant observed that Mr Walters 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 Walters was slightly affected by intoxicating liquor (Exhibit 1-E1). 6Mr Walters was taken to Lithgow Police Station where he underwent a breath analysis test at 9:45am. The test returned a reading of 0.041 grammes of alcohol in 210 litres of breath. The NSW Police Force Police Breath Analysis Details report indicated that he was observed to have a flushed face, glazed, bloodshot eyes and that he appeared to be slightly affected due to liquor (Exhibit 1-E10). 7Mr Walters was performing safe-working duties when detected. His duties included the preparation of the track for the installation of a walkway from the Cess to the bottom of the signal box stairs. RailCorp removed him from Railway Safety Work and referred the matter to the RailCorp Investigations Unit (RIU) for a disciplinary investigation to be conducted. 8On 4 April 2011, Mr Brian Healy, an Investigator with the RIU wrote to Mr Walters 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 Code and the Procedure. 9Mr Walters responded to the allegation by letter dated 24 April 2011 (Exhibit 1-E12) and submitted the following: that his shift in Lithgow finished at 4:30pm on 19 March 2011, that not long after he had dinner and drinks and watched football until around midnight on 20 March 2011, that he lost track of the time and the amount of alcohol he had consumed, that he awoke at around 5:30am to commence a 6am shift and was feeling and functioning normally when he reported to work, that he was surprised that he failed to alcohol test. 10By letter dated 18 May 2011, Mr Healy invited Mr Walters to attend a voluntary disciplinary interview (Exhibit 1-E3). Mr Walters duly attended an interview with a support person, Eddie O'Brien of the Australian Workers' Union (AWU), on 31 May 2011. At that interview he relevantly stated the following (Exhibit 1-E4): As a 3.1 Construction Worker he uses hand tools, demo tools, jackhammers, hammers, nails, etc. On 19 March 2011 he worked on the siding in Lithgow Signal Box installing a non-slip walkway across the tracks heading into the yard. He finished work at 4:30pm, went to the Lansdowne Hotel, took a shower and went for drinks. He had about eight or nine schooners of VB between 5-5:30pm and midnight and then went to bed. 11Mr Healy found the allegation against Mr Walters to be substantiated and on 30 June 2011 Mr Healy's Investigation Report was forwarded to the Disciplinary Review Panel (DRP) for consideration (Exhibit 1-E). 12On 18 July 2011, the DRP convened to consider the allegation and the finding made, and to make a recommendation, and formed a preliminary view that Mr Walters be dismissed, advising of such by letter of 10 August 2011 (Exhibit 1-F) which was acknowledged as received by Mr Walters on 12 August 2011. Mr Walters was invited to provide submissions in relation to RailCorp's preliminary view within 14 days. 13On 23 August 2011, the AWU provided a response on behalf of Mr Walters to the preliminary view of the DRP (Exhibit 1-G) which included the included the following relevant submissions: On 19 March 2011 he had an enjoyable evening socialising with his workmate Matthew Jones. He felt alert when he awoke at around 5:30am on 20 March 2011 and assumed that the level of alcohol in his blood would have reduced below the legal limit. He had suffered from depression and a gambling dependency during the last few years which had led to some attendance issues, for which he had utilised the Employee Assistance Program. He attended counselling with Kelly Rochow, Clinical Psychologist (as part of RailCorp's Drug & Alcohol Rehabilitation Program). He was fined by the Lithgow Local Court for breaching section 12 of the Rail Safety (Drug & Alcohol Testing) Regulation 2008. 14The DRP reconvened on 5 September 2011 to consider Mr Walters' response and made a final recommendation of dismissal. On 6 September 2011 RailCorp wrote to Mr Walters informing him that he was dismissed effective 8 September 2011 (Exhibit 1-HI),. Mr Walters acknowledged receipt of this advice on 8 September 2011. 15The 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." 16Mr Walters attended RailCorp Code of Conduct briefings on 26 October 2006 and 1 March 2010 (Exhibit 1-D). 17The relevant provisions of the RailCorp Drug & Alcohol Policy & Procedure 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. 18Mr Walters attended Drug & Alcohol Briefings on 8 October 2003 and participated in a Drug & Alcohol Testing Briefing and Training on 25 and 31 March 2004 respectively. Issue(s) 19Mr Walters 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 Walters' conduct. Respondent's Case 20RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980 . 21Ms Baxter made oral submissions in addition to the written submissions as filed (Exhibit 1), and in doing so submitted that as Mr Walters had pleaded guilty it was not in issue that he was in breach of both the Code and the Policy . Further he knew, or ought to have known, of his requirement to adhere to the Procedure and the importance of being alcohol free while at work. 22It was also submitted that Mr Walters also had a duty of care to prevent risks to all employees and to persons entering its property or using its services and 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. 23It was submitted that, in the circumstances, the dismissal of Mr Walters 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. 24It was further submitted that RailCorp was within its rights to dismiss Mr Walters in order to enable RailCorp to meet the objectives of safety, reliability and efficiency, as provided by s.5 of 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. 25Ms Baxter submitted that an analysis of the relevant evidence (as set out in the various attachments to Exhibit 1) highlighted the following facts/issues: Mr Walters had a positive reading of 0.052 at 8:24am - two and a half hours after he commenced his shift at 6am on 20 March 2011. RailCorp's Chief Health Officer, Dr Armand Casolin calculated that at the commencement of his shift at 6am Mr Walters' blood alcohol level would have been approximately 0.072 grammes per 100 millilitres of blood (or 210 litres of breath). He had stated in his response to the allegation letter that "I was feeling and functioning normal when I reported to work. I was surprise to see that I had failed the breath test. "(Sic.) 26It was submitted that If Mr Walters was feeling and functioning normally with an alcohol level of approximately 0.072, that suggested that he was a regular heavy drinker. In that case that there was a legitimate concern that he would be at risk of re-offending in future. 27Further, Mr Walters reported having had eight or nine schooners of beer and cider over approximately seven hours. It was undeniable that such quantity of alcohol would put him over the acceptable limit. It is therefore submitted that his claim to be surprised that he failed the test was disingenuous. As a RailCorp employee, having undertaken Drug & Alcohol briefings and training in the past, he knew, or ought to have known, that he should not have been drinking to that excess on the night before a 6 am shift. 28Mr Walters had been an employee of RailCorp for approximately 10 years at the time of his positive alcohol test and had held the position of 3.1 Construction Worker for the previous six years. Therefore his skills, experience, length of service and knowledge of the proper policies and procedures exacerbated the serious nature of his breaches. 29It was submitted that the position of Construction Worker 3.1 involved work on the rail corridor to carry out civil construction works and was classified as the highest Rail Safety Worker, Category One. At the time he was performing safe-working duties in an area nearby the Lithgow signal box. He knew the importance of being fit to perform safe-working duties. In the past, he had self-identified as suffering from depression, for which he was assessed and removed from safe-working duties for a period of time. 30It was submitted that on 20 March 2011 it was open for Mr Walters to self-identify for alcohol at the commencement of his shift and/or notify his supervisor that he was not fit for duty that day. 31Ms Baxter acknowledged that while Mr Walters had provided two character references, and copies of petitions from fellow workers with his response to the preliminary recommendation for dismissal, and that it would appear that he is 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. 32It was submitted that RailCorp was correct to dismiss Mr Walters for his actions in breach of the Code and the Procedure . Dismissal was the appropriate penalty as Mr Walters was aware of the provisions of the Code and the Procedure , 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 Procedure and the importance of being alcohol free at work. 33It was submitted that by attending work on 20 March 2011 with a blood alcohol concentration in excess of 0.02%, Mr Walters committed a serious breach of the Code and the Procedure . Even more serious, was the likelihood that his blood alcohol concentration at the time he commenced his shift at 6 am was in excess of 0.07, this was based on the evidence of RailCorp's Chief Health officer Dr Casolin. Therefore having regard to both RailCorp and Mr Walters' safety obligations his actions warranted dismissal and it was not in the public interest to alter this decision. 34It was submitted, in the alternative, that if the Board considered that dismissal was too harsh a penalty in this case, then an appropriate penalty would be to allow him an opportunity to resign and for RailCorp's acceptance of such resignation in lieu of dismissal, as per the Board's decision in appeal TD09/237 Burns v RailCorp (28 September 2009). Appellant's Case 35Mr Falconer made oral submissions in addition to the written submissions as filed (Exhibit 3) taking the Board to relevant evidence. In doing so it was acknowledged that Mr Walters had admitted breaching the RailCorp Code of Conduct when he recorded a positive alcohol test on 20 March 2011 leading to his eventual dismissal and 8 September 2011. 36It was submitted that Mr Walters had a disciplinary history and had not been issued with any written warning letters during the course of approximately 10 years of employment with RailCorp. He had been spoken to by superiors in recent years about periods of absence from work. These issues arose when he was struggling with depression and gambling problems and access to be in a tea assistance program (E8P) assistance in dealing with these issues. Those discussions constituted the only performance issue raised with him prior to the incident on 20 March 2011. 37It was also submitted that in this matter we were talking about the "behaviour of men not angels". 38Mr Walters was frequently tested for alcohol during the course of his employment with RailCorp and passed all tests prior to 20 March 2011. 39It was further submitted that Mr Walters had a substantial amount of support from his workmates, as demonstrated by 29 employees signing a petition in support of his ongoing employment, two superiors providing character references, as well as a witness statement from Mr Stanford. 40It was submitted that Mr Walters' disciplinary record was a relevant consideration in terms of whether the decision to terminate his employment was appropriate and proportionate. 41Mr Walters accepted that he was aware that an alcohol limit of 0.02 applied to his employment. However he did not receive any specific training on compliance with RailCorp's Drug & Alcohol Policy from 31 March 2004 to 20 March 2011. Further he did not recall receiving any specific training during the course of his employment with RailCorp about calculating the length of time it takes a person's alcohol level to reduce after drinks are consumed. While Mr Walters had attended training on the C ode of Conduct in recent years he recalled that this training focused upon receiving gifts from clients and potential conflicts of interest. 42It was submitted that the Code did not indicate that one positive alcohol test was likely to result in dismissal, and even if this was the case it would be reasonable to expect that RailCorp would have offered specific refresher training to Mr Walters at some time during the seven years which elapsed between 31 March 2004 and 20 March 2011. 43It was acknowledged that the outline of events on 20 March 2011, generally, were as confirmed by RailCorp. Mr Walters had admitted consuming approximately 8 schooners of beer between 5 pm and midnight whilst watching football and socialising with the patrons of the Hotel. He woke up around 5:30 am on Sunday, 20 March 2011 and attended the Lithgow worksite in time to commence work at 6 am. He did not have either breakfast or a shower prior to commencing work. He presented for work based on his self-assessment and no other measurement than how he was feeling and foolishly as observed by the Board did not eat before going to work. 44The AWU did not support breaches of the Code but self-assessment was unfortunately not able to be accurately tested and that was what Mr Walters did on the morning of 20 March. He self-assessed that he was okay notwithstanding the fact that he had drunk until midnight, had 5 1/2 hours sleep, nothing for breakfast and gone on to the job. He did not breach safety issues during that day and cooperated with both Police and Rail authorities in the testing. 45The work being undertaken in Lithgow was the construction of a non-slip fibreglass walkway located around 6 metres from the main rail line. Mr Walters was worked in a crew with five other employees and a Signal Box Attendant was also present at a Signal Box right next to where the employees were working. He only heard one train passing through the nearby rail line during that construction work on 19 and 20 March 2011. 46Mr Walters felt functional and sober when woke up on 20 March 2011. It was noted that the statement from Testing Officer Russell Bryant stated that he "presented normal speech and balance" and the NSW Police Force Breath Analysis Details document (as attached to RailCorp's material) confirmed that he presented with normal: actions, breathing, speech, balance and movement. 47It was submitted that the statement from Testing Officer Bryant and the NSW Police Force Breath Analysis Details document referring to Mr Walters looking flushed in the face with bloodshot eyes and a slight smell of intoxicating liquor were observations that were unsurprising given that he was embarrassed about the situation, had only slept approximately 5 1/2 hours the previous night and had not showered or eaten breakfast in the morning. 48It was submitted that the statement from Testing Officer Bryant and the NSW Police Force Breath Analysis Details also confirmed that Mr Walters was cooperative with all aspects of the testing process. He admitted his guilt from the outset, did not attempt to deny it to excuse his actions and accepted RailCorp's decision to subsequently confine him to performing largely mundane tasks at the Sefton Depot between 21 March 2011 and 8 September 2011. 49It was submitted that these were judgements by individuals without supporting evidence. 50Mr Walters complied with RailCorp's request for him to attend the disciplinary interview on 31 May 2011 and answered all questions directed at him. His evidence about what occurred on 19 and 20 March 2011 was consistent throughout the RailCorp investigation process. 51Mr Walters also complied with RailCorp's request to undertake counselling with a registered psychologist between 26 May 2011 and 21 June 2011, attending five sessions during this period. The psychologist reported that his participation in the counselling sessions was "excellent" (Exhibit 6-D). 52Mr Walters provided a written response to the allegations against him Allegation on 21 April 2011and the AWU provided a detailed response to the preliminary decision to terminate his employment in correspondence dated 23 August 2011 (Exhibit 4). 53It was submitted that Mr Walters' extensive compliance with all aspects of the testing and investigative processes from 21 March 2011 until 8 September 2011 was a relevant factor to take into account when determining whether the decision to terminate his employment was appropriate and proportionate. 54It was also submitted that it was reasonable to surmise that Mr Walters had a relatively low risk of breaching the Drug & Alcohol Policy in the future due to following circumstances: RailCorp engaged Kelly Rochow, a Clinical Psychologist, to provide a report about the counselling sessions attended by Mr Walters between 26 May 2011 and 20 June 2011 and his prospects of re-offending in the future. In her report of 27 June 2011 (Exhibit 6-D) she conveyed the following outcomes: 3.1 Mr Walters has a low risk of relapse. 3.2 Mr Curtis is fit to return to safety work with regard to his current drug and alcohol issues. Mr Walters was tested for alcohol on a fortnightly basis between 21 March and 8 September 2011 and passed all tests. He had a proven history of compliance with the Policy over an employment period of 10 years and the report from Ms Rochow indicated that he understood the seriousness of his mistake on 20 March 2011 and the need to ensure there were no further incidents. 55It was submitted that that Report and the recommendations made should be the determining factor in this appeal. 56It was also submitted that the probability of re-offending was low, this had been a salutary lesson for Mr Walters and that if he were to be reinstated by the Board and re-offended he would be dismissed. 57Mr Falconer advised the Board that Mr Walters had suffered a financial loss of approximately $13,000 (gross) between 21 March 2011 and 8 September 2011 as a result of being confined to work from the Sefton Depot. This loss arose from overtime and allowances that he would ordinarily have received whilst performing rail construction work. Additionally, he was required to pay a total of approximately $1000 in fines and costs by the Lithgow Local Court on 11 August 2011 after being prosecuted by the Independent Transport Safety Regulator for breaching the Rail Safety (Drug and Alcohol Testing) Regulation 2008. 58Further, Mr Walters' personnel file had been marked "not to be hired in any capacity, including (but not limited to) as labour hire, contractor or consultant". This effectively removed the ability for him to perform rail construction work in NSW and constituted a substantial restriction on his future employment opportunities. He had a School Certificate and the qualifications earned during the course of his employment RailCorp to rely upon when seeking alternative implement and many of these qualifications were specific to the rail construction industry. 59Since Mr Walters had been dismissed he had performed some casual work for his parents' manufacturing business, but this was not a long-term employment option. 60It was submitted that the financial penalties suffered by Mr Walters, the exclusion from performing rail construction work, and the difficulties he faced in locating comparable permanent employment, were important factors for the Board to take into account in determining whether dismissal was an appropriate and proportionate punishment. 61Concerning the appropriateness of the penalty imposed by RailCorp it was submitted that Clause 4 of the Code (and also Clause 1 of the Policy provided the following in relation to an employee who breached the requirement for an alcohol and drug free workplace: Employees who breach these standards or who refuse a drug or alcohol test will be subject to counselling and/or disciplinary action. Serious or ongoing breaches may result in dismissal. Contractors and consultants risk contract termination for breaching these requirements. 62The Code did not convey to employees that dismissal was a mandatory punishment in the event of a positive alcohol test and indicated that counselling was a plausible punishment for this offence. Further, the Code established a distinction between "a breach" of the drug and alcohol requirements and a "serious or ongoing" breach. The punishment of dismissal was only contemplated for serious or ongoing breaches and there was no evidence that Mr Walters was guilty of ongoing breaches of the drug and alcohol requirements. 63The contentious issues appeared to be whether Mr Walters' conduct on 20 March 2011 amounted to a "serious" breach. RailCorp had not provided any evidence to establish when a breach becomes a "serious" breach. 64Mr Falconer submitted that the following factors were relevant in terms of assessing whether the breach could be fairly characterised as a "serious" breach: Mr Walter had no previous breaches; and He did not consume alcohol at work and did not intentionally breach the Code. The breach arose as a result of an erroneous decision from him about whether he was over the 0.02 limit on 20 March 2011 after drinking the previous evening; and He was performing labouring duties arising from the construction of a walkway in a relatively quiet section of the rail corridor on 20 March 2011, was working in the vicinity of five other people and a signal box attendant was metres away observing and controlling any approaching trains; and He had not received any training about calculating alcohol levels during the course of his employment and had not received any specific drug and alcohol training since 31 March 2004; and He complied with the testing procedure on 20 March 2011 and accepted his fault from the outset. 65These factors were relied on in submitting that Mr Walters' breach on 20 March 2011 did not constitute a "serious" breach which could justify a decision to terminate his employment in accordance with the Code. 66It was also submitted that the Code (Clause18) listed an extensive range of punishments available to RailCorp to deal with Mr Walters conduct - counselling; caution or reprimand; regression; fine; transfer; suspension ; dismissal and proceedings under legislation. This list was effectively extended in his situation because there was also a financial penalty associated with him being restricted from performing construction work. 67In all the circumstances, RailCorp had imposed an excessive punishment on Mr Walters which was not justified for an employee who made one regrettable mistake during 10 years of employment. 68It was also submitted that RailCorp were in breach of Clause 36 of the Rail Corporation Enterprise Agreement 2010 (the Agreement) which deals with disciplinary investigations, as sub-clause 36.3 provides that: Irrespective of the complexity of the matter, after 12 weeks from commencement of the notification, the Director Human Resources or nominee, is to advise the Employee in writing if the process is to extend beyond 12 weeks, the anticipated time for the current stage to conclude and outline the reasons for an delays to date or anticipated delays. (with a list of possible reasons then set out, and with similar advice to be forwarded after 6 weeks.) 69Mr Walters did not receive any advice in relation to a delay with RailCorp's investigation during the 24 weeks which elapsed between 20 March 2011 and 8 September 2011. The Investigation Report identified an "EBA Letter- 12 Week" and "EBA Letter- 6 Week Follow" category. The initials "N/A" had been recorded on this Report (Exhibit 1-E). RailCorp had not identified any reason why these two letters were "not applicable" and it appeared RailCorp had contravened clause 36 of the Agreement in relation to Mr Walters' disciplinary investigation. 70It was submitted that the length of the investigation caused uncertainty and concern for Mr Walters and this was another factor that the Board should take into account in determining this appeal. 71In support of the submissions made the Board was taken in some detail to Daley v GWA Group Ltd T/A Dux Hot Water [2011] FWA 6993; Gane v Rail Corporation New South Wales [2010] FWAFB 3788; Bates v Commonwealth of Australia (Department of Defence) [2009] AIRC 899; Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 and Crutcher v RailCorp [2011] NSWTAB 15. Respondent's Reply to Appellant's Submissions 72In reply to the submissions made by the AWU as to Mr Walters lack of specific training, it was submitted that he received training on the Code on 23 October 2006 and 1 March 2010, with the latter training covering the entirety of the Code , including drugs and alcohol (as confirmed by Attachment A to Mr Healy's statement). He also underwent drug and alcohol briefings and training on 8 October 2003 and 31 March 2004. The submission that he did not receive specific training on compliance with the Procedure for a number of years misrepresented the extent and relevance of the training that he had received. 73Further, as a 3.1 Construction Worker he was required to "utilise competencies from both formal training and on the job learning...and carry out tasks in a safe and effective way to meet applicable standards." Mr Walters competencies were evidenced by his possession of a RailCorp Rail Safety Worker Competency Card, valid from 2 February 2010. His Personnel History Report also showed that he held Protection Officer Level 1 and Level 2 status and was qualified in Senior First Aid at the time of his positive alcohol tests. These competencies all required him to have responsibility for safety and risk management at all times - including a duty to be alcohol free at work. 74Mr Walters was also required to undergo regular health assessments (including drug and alcohol tests) as a Rail Safety Worker Category One, to ensure fitness for duty. He was well aware of this process, particularly as he had been removed from safe-working duties in 2008 after self-identifying that he was suffering from depression. 75It was submitted that it is unreasonable to suggest that Mr Walters did not have a proper understanding of what was required of him to comply with the Procedure (even having received specific drug and alcohol training in 2004).having regard to his competencies, experiences in a safety critical role and previous training. 76The submissions made on behalf of Mr Walters that he had not received specific training about calculating the length of time it takes for a person's alcohol level to reduce after drinks are consumed were refuted on the basis that the Code clearly sets out that it "....is an individual's responsibility to ensure that they are drug and alcohol free at work". In any event, material was available to RailCorp employees seeking information on drug and alcohol matters and the RailCorp Intranet provided information, including 'Frequently Asked/Answered Questions', and a pictorial guide, to assist with the calculation of standard drinks. Much of this material was required to be placed on work notice boards and had previously been posted to employees at their home addresses. 77Further, it was also open for Mr Walters to speak to his managers and/or utilise RailCorp's Employee Assistance Program (EAP) if he had any specific concerns, as he had done in the past. 78It was submitted that RailCorp had taken reasonable steps to ensure that Mr Walters received training and/or had access to information to assist his compliance with the Code and the Procedure . 79It was submitted that the seriousness of the breach warranted dismissal as Mr Walters' position at RailCorp was such that awareness of risks from drugs and alcohol was an ongoing feature of his daily work . It could not be said that he did not have an awareness of such factors and indeed, his experience belied any suggestion that his breach was unwitting. By reporting for duty at 6am after consuming eight or nine schooners of beer up to midnight the prior evening, he was taking a serious and conscious risk for which dismissal was appropriate. His blood alcohol concentration two and a half hours after commencing rail safety work was 0.052 - almost three times the acceptable limit set out in both the Code and the Procedure . Almost four hours after commencing work his blood alcohol concentration was still high at 0.041. Such levels clearly rendered his breach as serious. 80It was further submitted that the fact that the Mr Walters claimed to have been performing labouring duties on a quiet section of the rail corridor in the vicinity of five others did not diminish the severity of his breach and in fact increases the seriousness. He was responsible for his own safety and held a duty of care for the safety of others who might be affected by his acts or omissions at work. His actions were sufficiently serious to result in a fine for breaching the Rail Safety (Drug & Alcohol Testing) Regulation 2008. 81RailCorp also maintained that the breach was sufficiently serious to warrant dismissal. RailCorp's first concern was safety, and breaches of the Procedure raised safety risks to members of the public and all employees. Dismissal of Mr Walters in the circumstances was necessary to ensure that he did not re-offend and to send a clear message to other employees that serious (and/or ongoing) breaches will be treated seriously. 82It was submitted that Mr Walters had admitted to periods of poor attendance, which he attributed to struggling with depression (in 2008) and then gambling (in 2010). Following his positive alcohol tests RailCorp referred him for assessment by Dr Sarah Moss at Executive Health Solutions. Her report of 19 April 2011 (Exhibit 1-D) sets out his alcohol history as reported, to her, by him. He Had admitted to taking days off work "a few times" due to excess alcohol saying, "I thought I was over the next morning". Her assessment was that Mr Walters met the criteria for alcohol abuse and that he was a regular binge drinker drinking alcohol at harmful levels. 83The AWU on behalf of Mr Walters had relied on the June 2011 report of Kelly Rochow, Clinical Psychologist, which outlined that he had a history of alcohol abuse, including two DUI charges with one within the last three years. These were listed as risk factors to relapse which should not be ignored, despite his participation in counselling as required under the RailCorp Drug and Alcohol Rehabilitation Program. 84It was submitted that while Kelly Rochow concluded, as at June 2011, that Mr Walters was a low risk of relapse, his history still gave cause for concern, and the only surety against the possibility of him re-offending was dismissal. 85RailCorp acknowledged its failure to comply with clause 36 of the RailCorp Enterprise Agreement 2010 but submitted that Mr Walters was afforded procedural fairness in all other respects as follows: The Investigator notified him that a disciplinary investigation was being conducted on 4 April 2011; He utilised the opportunity to provide written responses and attend an interview throughout the disciplinary investigation; The matter was referred to the DRP on 30 June 2011 and he was notified of the preliminary recommendation to dismiss him on 12 August 2011; 86In closing submissions Ms Baxter referred to relevant evidence emphasising that the breach in this instance was incredibly serious for a number of reasons. It was a high reading (as referred to above) and his behaviour showed an irresponsible disregard for his own health and the safety of others. His evidence when he was asked whether he turned his mind to stopping drinking the night before was, "Well, that's why we stopped drinking at midnight". He also suggested that for him 5 1/2 hours sleep before a 6 am shift and having no food was okay. This demonstrated that even now he did not have an appreciation of the dangers associated both with his drinking and the amount of alcohol he consumed, even after having participated in drug and alcohol counselling. 87Further he admitted knowledge of the policies, awareness of his responsibilities and had been tested many, many times, estimated at about 100 and that 9 out of 10 shifts there would be a drug and alcohol tester on-site. That showed that RailCorp took its responsibilities for a drug and alcohol free workplace very seriously and Mr Walters could not deny that he was aware of the process. 88It was of concern that Mr Walters suggested he had not undergone drug and alcohol specific training in recent years. Given the nature of his responsibilities and admissions made as to his role as a Protection Officer it was unreasonable to suggest he had no awareness because he hadn't had training in the last couple of years. He had had training and RailCorp had discharged its duties in that regard. 89It was also of concern that he had never informed RailCorp that he had issues with alcohol previously. RailCorp was happy to assist him when he had problems with depression and gambling. He self-identified on those occasions and could have done so again and was aware of the process. He had never tested positive but had admitted to avoiding a test and was lucky to have only been counselled, he had also called in sick a few times. He also could not remember the contents of a First Aid Certificate and it was submitted that one was being trained on how to treat a victim of drug and alcohol then there was an implication that dangers existed. 90Reference was made by the AWU to Kelly Rowchow's Report and her view that he was a low risk of relapse having regard to the factors that she took into consideration after completing five sessions of counselling. Also listed were the risk factors which she acknowledged was still there, a history of alcohol abuse which included two DUI charges, one within the last three years. Ms Baxter did not believe that Ms Rowchow was in possession of the Report of Doctor Moss as annexed to Mr Healey's statement in Exhibit 2. 91In closing submissions Ms Baxter referred to relevant evidence emphasising that the breach in this instance was incredibly serious for a number of reasons. It was a high reading (as referred to above) and his behaviour showed an irresponsible disregard for his own health and the safety of others. His evidence when he was asked whether he turned his mind to stopping drinking the night before was, "Well, that's why we stopped drinking at midnight". He also suggested that for him 5 1/2 hours sleep before a 6 am shift and having no food was okay. This demonstrated that even now he did not have an appreciation of the dangers associated both with his drinking and the amount of alcohol he consumed, even after having participated in drug and alcohol counselling. 92Further he admitted knowledge of the policies, awareness of his responsibilities and had been tested many, many times, estimated at about 100 and that 9 out of 10 shifts there would be a drug and alcohol tester on-site. That showed that RailCorp took its responsibilities for a drug and alcohol free workplace very seriously and Mr Walters could not deny that he was aware of the process. 93It was of concern that Mr Walters suggested he had not undergone drug and alcohol specific training in recent years. Given the nature of his responsibilities and admissions made as to his role as a Protection Officer it was unreasonable to suggest he had no awareness because he hadn't had training in the last couple of years. He had had training and RailCorp had discharged its duties in that regard. 94It was also of concern that he had never informed RailCorp that he had issues with alcohol previously. RailCorp was happy to assist him when he had problems with depression and gambling. He self-identified on those occasions and could have done so again and was aware of the process. He had never tested positive but had admitted to avoiding a test and was lucky to have only been counselled, he had also called in sick a few times. He also could not remember the contents of a First Aid Certificate and it was submitted that one was being trained on how to treat a victim of drug and alcohol then there was an implication that dangers existed. 95Ms Baxter also submitted that the Board should not place great weight on the cases relied on by the AWU on behalf of Mr Walters as unlike the Workplace Relations Act which was explicit in relation to considerations as to whether a termination is harsh, unjust and unreasonable the TAB Act was not explicit, and can take such matters into consideration as it sees fit as per Dubhihar v Transport Appeal Board and Anor [2005]NSWSC811 where it was considered that the task of the Board was to determine whether the punishment imposed by RailCorp in relation to the misconduct findings was appropriate in the circumstances. 96In response to questions from the Board as to one of the alternative penalties put forward by the AWU on behalf of Mr Walters, that being regression, Ms Baxter indicated that she had no instructions and it was difficult to identify what selection criteria Mr Walters would match. It was reiterated that RailCorp considered that an appropriate alternate remedy was to allow Mr Walters the opportunity to resign. 97Ms Baxter rejected the submission made that Mr Walters performed a self-assessment on that day suggesting that the self-assessment he made was an irresponsible one particularly where he knew because of his experience in the role, his exposure to drug and alcohol testing, the chances of being tested and getting caught as he had obviously called in sick on previous occasions and also not attended on an occasion to avoid testing officers on site. 98It will Ms Baxter also submitted that the Board should not place great weight on the cases relied on by the AWU on behalf of Mr Walters as unlike the Workplace Relations Act which was explicit in relation to considerations as to whether a termination is harsh, unjust and unreasonable the TAB Act was not explicit, and the Board could take such matters into consideration as it saw fit as per Dubhihar v Transport Appeal Board and Anor [2005]NSWSC811 where it was considered that the task of the Board was to determine whether the punishment imposed by RailCorp in relation to the misconduct findings was appropriate in the circumstances. Ms Baxter also distinguished the cases relied by the AWU in comparison the issues arising in this appeal. 99Ms Baxter also rejected the analogy that Mr Falconer had drawn that it was "the behaviour of men not angels" that should be applied, indicating that the general reference relied on had arisen in the context of a case dealing with bad language in the workplace and was essentially not relevant to the issues in this appeal. 100It was also submitted that the impact of reinstating Mr Walters would be the risk, and the very serious risk of the likelihood of participating in further safety breaches and that wasl certainly the main factor that went to the public interest against reinstating him. 101It is submitted that was it was unreasonable for the AWU to suggest that RailCorp should be subjecting employees to drug and alcohol training on a yearly basis or certainly on an unreasonably frequent basis. Also Mr Walters agreed in cross examination that at the commencement of shifts there are briefings where employees are asked if they are okay for drug and alcohol so that is clearly an ongoing daily issue within the workplace. Mr Walters had received drug and alcohol training and other training, although some of it was not particularly recent, that involved the need for him to be aware of drug and alcohol matters. 102Ms Baxter submitted that it was a very simple concept for employees to understand, and particularly RailCorp was well known for its strictness in relation to drug and alcohol matters, that there was a requirement to be drug and alcohol free at work and if you were safety worker then that had to be taken even more seriously. 103In response to questions from the Board as to one of the alternative penalties put forward by the AWU on behalf of Mr Walters, that being regression, Ms Baxter indicated that she had no instructions and it was difficult to identify what selection criteria Mr Walters would match. It was reiterated that RailCorp considered that an appropriate alternate remedy was to allow Mr Walters the opportunity to resign. 104Ms Baxter concluded by submitting that RailCorp maintained that Mr Walters had committed serious breaches of RailCorp's Code of Conduct and the RailCorp Drug & Alcohol Policy & Procedure warranting dismissal and the Board should not alter the decision and should disallow the appeal. Evidence 105RailCorp, relied on the various documents contained in the Written Case and relevant Documents (Exhibit 1) and Reply to the Appellant's Written Case (Exhibit 2). Reliance was also placed on statements from the following RailCorp employees, who were not required for cross examination: John Kinney.......Acting Manager Operations (Exhibit 1-B), Russell Bryant... Drug & Alcohol Testing Officer (Exhibit 1-E9), Bryan Healey ....Investigator (Exhibit 2-A). 106The AWU relied on a statement from Mr Ronald Stanford, a co-worker of Mr Walters (Exhibit 5) who was not required for cross examination. Mr Walters also gave oral evidence in addition to the witness statement as filed (Exhibit 6). 107Mr Stanford's evidence generally confirmed Mr Walters as a "hardworking, safe and competent employee", who he had never observed under the influence of alcohol when he had worked with him. Mr Standford had also been involved in arranging for the petition of RailCorp co-workers in support of Mr Walters. 108The factual evidence of the RailCorp witnesses as set out in the various statements and documents contained in Exhibit 1 was not challenged and generally confirmed by Mr Walters in oral evidence. 109Mr Walters deposed that he did not receive any written warnings in nearly 10 years of employment with RailCorp but acknowledged that he had been spoken to by two managers about attendance issues in the last few years which occurred during a period when he was struggling with depression and a gambling addiction for which he sought assistance from the Employee Assistance Program (EAP). He was grateful for that assistance during these difficult periods. He acknowledged in cross examination that at this time he also had an issue with alcohol for which he did not seek assistance. 110He acknowledged that he was aware that the alcohol limit for rail safety work was 0.02 but said he could not recall receiving any specific training in drug and alcohol testing for the number of years. He did recall receiving training in the Code of Conduct in the last few years but this did not deal specifically with monitoring alcohol levels but mainly with bribery and the taking of gifts from clients rather than drug and alcohol testing. 111He had read RailCorp's submissions that self-testing was an option for him on 20 March 2011, but said that he was not aware that he had this option and had not been trained in this procedure. He did not recall receiving any training on how to calculate whether he would be over the limit the morning after drinking the night before. 112He had been tested on approximately 100 occasions during his employment with RailCorp and had never previously tested positive. 113In relation to the events of 19 and 20 March 2011, he had arranged accommodation at the Lansdowne Hotel in Lithgow during the week when they were advised of the job. He acknowledged that this was a poor choice on his part and that he should have stayed in a Motel and would so in the future. 114He confirmed the amount of alcohol he had consumed during the evening of 19 March 2011 as being eight or nine schooners of VB, he also had dinner around 7 pm. He felt "slightly intoxicated" when he went to bed but when he awoke at around 5:30 am he felt fine. He did not have any breakfast or shower, he basically put on his work clothes and headed to the work site. He maintained that he felt "functional" when he woke up and didn't think that he would be over the 0.02 limit. He believed he would have let his workmates down if he had reported sick. 115He acknowledged that he drove to the work site and also conveyed co-workers in his vehicle. He was not subsequently cautioned by the Police that he may have been over the limit when he drove to the worksite. 116He confirmed that he was a Level 1 and 2 Protection Officer and believed that meant he was just the hand signaller for the lookout, to look for trains and hand signal the train. He also confirmed that the Level 2 Protection Officer was allowed to take control of the work site and that as part of that role at the commencement of the shift employees were asked "are you okay" and that the "are you okay" concept included being free of alcohol. He was aware of those processes and had in fact performed them and asked other workers if they were "okay". 117He acknowledged that at the commencement of the shift that day there would have been a briefing by the Protection Officer to check that he was okay and he told him he was okay. He accepted that he had responsibility for his own safety and that they (the Protection Officers) had responsibility for making sure there were no train movements of which they were unaware. 118He also confirmed that he had recent first aid certification (Bronze) and that as part of obtaining that certificate he would need to understand the risks associated with alcohol but said that was only "to an extent". He could not recall much of what was in those courses and thought it was mainly to do with how to treat people for drug and alcohol overdoses. 119He acknowledged that with the training of various types he had received he had responsibilities for an awareness of alcohol matters in the workplace and had an awareness of the risks associated with alcohol in the workplace. He agreed that he thought that six hours was an adequate time to recover after they stopped drinking around midnight. He also considered that for him personally 5 1/2 hours sleep was sufficient before going on shift. 120He acknowledged he had not previously advised RailCorp that he had an alcohol problem but that he had told Dr Masters when he saw her that in the past he had taken sick leave a few times because he felt he was over the alcohol limit. He said he could not remember how much alcohol he had drunk on those occasions. He also acknowledged that he had been spoken to about not turning up to work when there was going to be a tester on site. He was told about that by one of the contractors. He was aware that the C ode of Conduct actually specified that it was a breach to avoid an alcohol test and that on that occasion he was not breached the Code of Conduct and was in effect given a chance by RailCorp. 121Mr Walters deposed that when he was subsequently directed to work from the Sefton Depot between 21 March 2011 and his dismissal of 8 September 2011, his duties were paperwork, building maintenance and cleaning. During this period he was subjected to targeted alcohol testing at least every fortnight and passed every test. 122He was directed by Sally Sukkar (RailCorp Drug and Alcohol Case Manager) to attend a number of sessions with a counsellor following his positive alcohol test on 20 March 2011 with sessions between 26 May and 21 June 2011. The attendance at these sessions was mandatory. He felt that the counselling benefited him greatly, particularly in discussing strategies to maintain to manage his drinking. He noted, when he received the Psychologist's Report from Kelly Rochow who conducted the counselling sessions, that she recommended under 'Outcomes' that he was a 'low risk of relapse' and he was hopeful that he would be able to start doing round safety work again. He was also aware that under 'Outcomes' and 'Recommendations' it said "Mr Walters is fit to return to rail safety work with regard to his current drug and alcohol issues. Fitness for full duties should be confirmed by a medical authorised health professional." That had not happened. 123He confirmed that he lost remuneration during the period in which he was restricted to working from the Sefton Depot to around $13,000. He also confirmed the $1000 fine imposed by Lithgow Local Court in August 2011as a consequence of his prosecution for breaching the R ail Safety Act 2008 . 124Mr Walters deposed that he was disappointed with the decision of RailCorp to dismiss him because he had done everything asked of him since the positive alcohol test and had been declared fit to return to rail safety work. 125He confirmed that he had been doing some casual work since being sacked for his parents who owned a security glass manufacturing business, but was concerned about his prospects of securing permanent employment in the future when it was found out that he was sacked by RailCorp. The restriction from working for contractors who performed rail safety work because he had no RISI ticket also limited his employment opportunities. If he had his RISI card he could work apply for rail safety work with a contractor. All the trades he and work he did for the last ten years had pretty much been railway work that was all he knew. 126He acknowledged that the work he did for father's business was akin to construction work and that he could get that type of work outside RailCorp. He had only been applying for causal work and had not really applied for full time work while this appeal was on-going. 127Mr Walters deposed that he realised that he made a serious error of judgement when he attended work on 20 March 2011 and since then had plenty of time to reflect on his actions and was extremely confident that he would not have any further problems complying with RailCorp's Drug and Alcohol Policy. Findings 128This 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 Walters. 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. 129The Board has very carefully considered the evidence, the extensive submissions of the parties and the authorities upon which they respectively rely. 130In this appeal Mr Walters 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 20 March 2011. 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]. 131The Board indicates at the outset that it considers the penalty of dismissal imposed by RailCorp in all the relevant circumstance of this appeal to be inappropriate and excessive. 132There is no real dispute as to the facts concerning what occurred on 19 and 20 March 2011. 133There is also no dispute that Mr Walters had no disciplinary history over his ten years of employment and had only, on his own admission, received informal counselling in relation to absences and not attending for work on a shift where a random drug and alcohol test was to be undertaken. 134The Board does not consider that Mr Walters intentionally reported for duty while he was not alcohol free. He genuinely considered that he was okay to report for work. He certainly exercised poor judgement and has acknowledged that, and he has also accepted that he should not have stayed in a hotel (with its easy and ready access to alcohol) but stayed in a motel. 135The Board does consider that a disciplinary penalty is required for the acknowledged and accepted breach of RailCorp's Code and Policy and one which would convey to Mr Walters the necessity of ensuring that in the future, now that he has had the benefit of counselling, he does remain alcohol free at work. 136He has clearly benefited from the mandatory counselling he was required to undertake and the Board accepts that he has had time to reflect on his actions and is confident he will not have any problems complying with RailCorp's Drug and Alcohol Policy in the future. 137The Board also notes that Ms Rochow, the Psychologist who conducted the six counselling sessions with Mr Walters indicated in her Report that Mr Walters "has a low risk of relapse" and .."is fit to return to rail safety work with regard to his current drug and alcohol issues." 138Those views were also confirmed by Dr Sarah Moss, RailCorp Authorised Medical Practitioner, in her Report of 19 April 2011 (Exhibit 2-D) where she relevantly indicated in the 'Summary' as follows: .... I recommend you refer Mr Walters for alcohol testing. I also recommend you arrange breath alcohol testing at least every fortnight. I believe after counselling and a period of monitoring Mr Walters should be able to comply with RailCorp's policy and be at low risk of relapse. (Emphasis added) Mr Walters is not currently fit for rail safety duties however after he finishes his counselling I recommend further medical assessment to assess his fitness to assume rail safety work. In answer to your other specific questions: Mr Walters has no signs or symptoms of depression and is not suffering from a depressive illness. He does not require treatment for a mood disorder. His positive alcohol reading is not due to or contributed to by any medical conditions". 139It is clear from the evidence that Mr Walters did undergo alcohol counselling (with Ms Rochow) and was subject to fortnightly alcohol breath testing, which he passed without issue. However there was no subsequent health assessment undertaken as recommended. 140The Board therefore rejects the submissions of RailCorp, which fly in the face of two health professionals, that it would be a serious risk to reinstate Mr Walters and against the public interest. 141The Board considers that there is no doubt that Mr Walters was not only foolish, but irresponsible, in consuming the amount of alcohol he consumed in a hotel up until midnight before he was due to commence a ten hour shift at 6 am the next day. There is no doubt that if he had been pulled over by a Police RBT Unit as he drove to the worksite on 20 March (and with other employees in his vehicle) he would have been over the limit for driving on NSW roads (0.05) and subject to further testing at a Police Station and charges would have flowed, including in all likelihood the loss of his driver's licence. 142However, having said that, the Board continues to be concerned at the somewhat general nature of the drug and alcohol training that is provided to RailCorp employees (not the mention how long ago that training took place) a compared to that with which the Board is familiar in relation to other industries where employees are either engaged in transport operations, or involved in operating heavy machinery. 143It also appears that the training Mr Walters has received was not in recent years, as was conceded by RailCorp. The Board rejects the reliance placed on the fact that Mr Walters holds first aid qualifications. There is no evidence before the Board as to the nature of the training involved for that qualification and whether that covers issues of appropriate and safe alcohol consumption to meet a zero tolerance workplace, rather than the appropriate treatment for a person negatively affected by excess alcohol consumption to the extent requiring medical assistance/treatment or involved in an accident as a result of such excessive consumption of alcohol. 144In Tauia v RailCorp [2011] NSWTAB 27, a similar case involving a first time failed alcohol test (but involving a Team Leader with unblemished service of 17 years, less alcohol consumption and more sleep) the Board as currently constituted relevantly observed as follows: 111 It 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. 112 The 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. 113 On 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 114 Whilst 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. 115 The 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. 116 If 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. 117 This 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. 145Reference was also made by RailCorp in submissions to the ability of Mr Walters to self-assess and self-test, however on Mr Walters' evidence he was unaware of what that involved, and there was also no evidence before the Board as to what that might involve and what is available to RailCorp employees. The Board is aware from other appeals before the Board involving the State Transit Authority that there is a Breathalyser machine available to STA employees (and in particular Bus Drivers) at a Bus Depot although there has been not detailed evidence before the Board as to what procedures/training is in place in relation to such equipment and its use. 146The Board is also mindful of the fact that it is evident from Tauai that any employee who is dismissed by RailCorp for whatever reason (even poor attendance or work performance) has their file marked as never to be re-hired by RialCorp, or anyone working for RailCorp including contractors, and cannot retain their RISI Card, then that is a somewhat harsh consequence 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 or professional sense). 147Mr Walters has no formal qualifications apart from the skills/qualifications he has gained at RailCorp and without his RISI would be unable to carry on with work in which he is experienced and trained as a result of his ten years with RailCorp. Whist the Board accepts that Mr Walters is not at the same disadvantage as Mr Tauia was in terms of age and personal circumstances and has been able to obtain some alternate casual work nevertheless the fact remains that in the Board's firm view that dismissal from RailCorp visits a harsher penalty and outcome on an employee than any other comparable employer or indeed any employer in the public sector. 148The Board also notes that RailCorp has available to it a number of options when considering what disciplinary action to take against an employee as provided by the Transport Administration (Staff) Regulation 2005 as follows: a)a caution or reprimand, b)a fine of an amount not exceeding $100, c)reduction in position, rank or grade and pay, d)suspension from duty without pay, e)dismissal. 149In considering an appropriate alternate disciplinary penalty to impose on Mr Walters the Board has taken a number of matters into account in addition to Mr Walters' length of service and his lack of any prior formal disciplinary history. 150The Board considers it of significance that Mr Walters had been tested approximately 100 times over the ten years before the incident without any problem and on a fortnightly basis during the time he was removed from rail safety work and located at the Sefton Depot and tested negative on all occasions. 151The Board has also noted the counselling that Mr Walters has undertaken and which has clearly had a beneficial and salutary effect as well as the observations of the two qualified health professionals contained in the respective reports as referred to above. 152The Board also notes the evidence of Mr Walters' Work Group Leader/Acting Team Leader, Mr Stanford (Exhibit 5), who was not required for cross examination. Mr Stanford's evidence was essentially a reference as to his opinion that Mr Walters was a "hardworking, safe and competent employee", supported by his workmates, and Mr Stanford had "no hesitation" in supporting Mr Walters' appeal and thought that he "would be a valuable and safe employee for RailCorp into the future." 153The Board has also considered the recent decision of the Transport Appeal Board (as constituted by Commissioner Tabbaa) in Arnusch V RailCorp [2012] NSWTAB 1 and the basis for determining the appropriate alternative disciplinary penalty having found the penalty of dismissal imposed by RailCorp was "extreme in the present circumstances". 154The 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 10 years unblemished service with RailCorp and has clearly learnt from his mistake and will not transgress in the future. 155The 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. 156The Board acknowledges that the Transport Appeals Board Act 1980 does not refer to issues of harshness, however, in applying the relevant test in Dubhihur it would not be possible in the Board's view to consider whether or not a penalty imposed by an employer was appropriate in the circumstances of an appeal under that Act without taking into account in such consideration general concepts of harshness. For those concepts decisions of the Industrial Relations Commission are relevantly and appropriately authoritative. 157In all the particular circumstances of this appeal, as dealt with above, to dismiss Mr Walters from his employment with RailCorp would be disproportionate to the breaches of Code and Policy involved. The Board finds that regression by one grade combined with an unpaid suspension of approximately 16 weeks is the appropriate punishment to impose on Mr Walters for his conduct. 158However Mr Walters should appreciate that he is being given a second chance by the Board as a consequence of this decision and he should take all steps necessary to fully comply with RailCorp's Drug and Alcohol Policy and the Code of Conduct in the future. 159RailCorp's decision to dismiss Mr Walters effective from 8 September 2011 will be set aside and Mr Walters reinstated without any loss of continuity of employment but he is to be regressed to a Construction Worker 2.1. and a period of 16 weeks suspension without pay imposed. 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. His fitness to return to full duties is to be confirmed by an authorised health professional and he is not to return to full duties until such confirmation is obtained. Any necessary re-training to enable him to take up full duties and have his RISI returned to him is to be facilitated by RailCorp and undertaken by Mr Walters. Order(s) 1.The appeal is allowed; 2.The decision of RailCorp to dismiss Mr Walters with effect from 8 September 2011 is set aside and he is reinstated to employment with RailCorp but regressed from the position of Construction Worker 3.1 to Construction Worker 2.1 without loss of continuity within 14 days, subject to (3) and (4) below; 3.Mr Walters is suspended without pay for the period from 8 September 2011 to 29 December 2011 (inclusive): 4.RailCorp is to make a payment within 14 days of the date of this decision to Mr Walters of the amount of pay he would have received in the regressed position from RailCorp, from 30 December 2011 to the date of this decision, but for RailCorp's decision to dismiss him. 5.Mr Walters is not to be returned to full duties until such time as his fitness to so return has been confirmed by an authorised health professional; 6.Mr Walters' RISI Card is to be returned and any necessary retraining to enable such, or to enable a return to the position specified in (2) above is to be facilitated by RailCorp and undertaken by Mr Walters. 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: 28 February 2012