Transport Appeal Boards New South Wales Medium Neutral Citation: Alameddine v RailCorp [2012] NSWTAB 4 Hearing dates: 23 January 2012 Decision date: 01 March 2012 Before: Bishop C (Board) Decision: Appeal allowed - orders issued Catchwords: PUBLIC SERVICE - discipline -rail employee - breaches of Code - dismissed by employer - appeal to Transport Appeal Board - breaches sustained - dismissal disproportionate to nature of breaches - dismissal set aside - reinstated with back pay - transferred to another Station. Legislation Cited: Transport Administration Act 1988 Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Duhbihur v Transport Appeal Board and Anor [2005] NSWSC811 Category: Principal judgment Parties: Abdul Alameddine (Appellant) Rail Corporation of NSW (Respondent) File Number(s): TAB 1278 of 2011 DECISION Introduction 1Mr Alameddine commenced employment with RailCorp on 17 March 2003 as a Customer Service Attendant at Central Station. On 5 August 2007 he was transferred to Bankstown, and remained in the position of CSA at Bankstown until his dismissal on 29 September 2011. 2On 28 September 2011, Mr Alameddine was notified by RailCorp that he was to be dismissed for the following breaches of the RailCorp Code of Conduct : Allegation One: Not substantiated Allegation Two: It is alleged that Mr Alameddine engaged in unacceptable behaviour, which resulted in a breach of the RailCorp Code of Conduct. The particulars of the allegation are: (a) On Saturday 20 November 2010, Mr Alameddine left his point of duty without authorisation from his supervisor and without seeking staff relief from any other RailCorp employee to cover his area of responsibility. (b) At about 1749hrs that day, Mr Alameddine left his position at the barriers and followed a RailCorp customer down the adjacent stairs onto Platform 1 with two other unknown males including another RailCorp employee and did not return to his designated place of duty until 1753hrs that day. Allegation Three: It is alleged that Mr Alameddine engaged in unacceptable behaviour, which resulted in a breach of the RailCorp Code of Conduct. The particulars of the allegation are: (a) On Saturday 20 November 2010, Mr Alameddine left the Bankstown Station Control Room, located at the main barriers insecure. At about 1749hrs that day, he left his position at the barriers and followed a RailCorp customer down the adjacent stairs onto Platform 1 with two other unknown males including another RailCorp employee. (b) Mr Alameddine left the entrance door to the Control Room open, unmanned and unsecured where it remained open and insecure until he returned at about 1753hrs. Allegation Four: It is alleged that Mr Alameddine breached the RailCorp Code of Conduct by engaging in unacceptable behaviour. The particulars of the allegation are: (a) On Saturday 20 November 2010, Mr Alameddine allowed an unauthorised RailCorp employee access to the Bankstown Station Control Room without approval Allegation Five: It is alleged that Mr Alameddine breached the RailCorp Code of Conduct by engaging in unacceptable behaviour. The particulars of the allegation are: (a) On Saturday 20 November 2010, Mr Alameddine allowed numerous RailCorp customers to enter and leave Bankstown Station without a valid RailCorp Train Ticket or payment. At about 1749hrs that day, Mr Alameddine left his position at the barriers and followed a RailCorp customer down the adjacent stairs onto Platform 1 with two other unknown males and another RailCorp employee. (b) There were no other RailCorp employees supervising the barriers during Mr Alameddine's absence, resulting in numerous RailCorp customers passing through the barriers. (c) Upon Mr Alameddine's return to the barriers at about 1753hrs that day, he continued to allow RailCorp customers to enter and leave the station without checking for valid tickets. 3On 7 October 2011, Mr Alameddine lodged an appeal in respect of his dismissal but did not indicate a plea on the Notice of Appeal to the allegations made against him by RailCorp. 4The matter was listed for disciplinary conciliation before Commissioner Ritchie on 1 November 2011 at which time conciliation took place. As no settlement could be reached, directions were issued as to the filing and exchange of written cases and statements pursuant to Practice Note 22 and the appeal was re-allocated to the Board as currently constituted and set down for hearing on 23 January 2012. Background and Chronology 5On 20 November 2010, a customer lodged a complaint by telephone about Mr Alameddine alleging that he had verbally abused him in Arabic while at the gates at Bankstown Station. The customer alleged that Mr Alameddine followed him down to the platform with two other males and a Presentation Services Attendant (PSA) and the two other males followed him onto a train where they continued to abuse him, Mr Alameddine remained on the platform (Exhibit 1-A1). 6The matter was referred to RailCorp's Investigations Unit (RIU) for investigation which was conducted by Mr Neal Carr, an Investigator with the RIU. On 18 February 2011 Mr Carr forwarded a letter to Mr Alameddine notifying him of the allegation that he had breached the RailCorp Code of Conduct and he was invited to respond to the allegations in writing within fourteen days (Exhibit 1-A3). The letter also included Allegation One (which was not substantiated) as follows: Allegation One: It is alleged that Mr Alameddine engaged in unacceptable behaviour, which resulted in a breach of the RailCorp Code of Conduct. The particulars of the allegation are: (a) On Saturday 20 November 2010, Mr Alameddine threatened and harassed a RailCorp customer. About 1747hrs that day, Mr Alameddine was approached by the customer asking for assistance. (b) About 1749hrs that day, Mr Alameddine left his position at the barriers and followed the customer down stairs onto Platform 1 with two other unknown males including another RailCorp employee. (c) About 1750hrs that day, a train arrived at Platform 1, where Mr Alameddine approached the customer in an aggressive manner and had a further conversation with him followed closely by the two unknown males. The customer attempted to walk towards the rear carriages of the train whereupon Mr Alameddine and the two unknown males continued to follow him. (d) The customer then boarded the train, whereupon Mr Alameddine and the two unknown males also boarded the same train and continued to harass and threaten him. 7On 27 February 2011 Mr Alameddine provided a response to the allegations (Exhibit 1-A4) which may be summarised as follows: The customer had been aggressive and abusive towards him when asking directions to a hotel, and that Mr Alameddine had followed him to the platform to pass on the answer to the customer's enquiry after asking another customer. With respect to Allegation 2, he admitted having left his point of duty, but claimed that it was for the purpose of passing on information. He claimed that he had followed the customer because the customer was angry and aggressive and he decided to try to ease the situation. With respect to Allegation 3, he admitted to leaving the Garrison area insecure, and reiterated that he had been trying to de-escalate the customer's anger to avoid a complaint. With respect to Allegation 4 he claimed that he had allowed PSA Joshua Tawake into the control room because it was an extremely hot day and the air conditioning in the PSA meal room was not working. He claimed to be unaware that PSAs were not authorised to enter the Control Room. With respect to Allegation 5, he stated that he had the wide gate closed at all times and if customers had entered or exited in the time he was away from his point of duty it was by forcing their way through the ticket array gates. He acknowledged that he did not use good judgement by following the customer or by leaving the barrier area unattended. He claimed that he had only left his point of duty to rectify the situation with the customer and that PSA Tawake had accompanied him as he was concerned by the customer's aggressive attitude. 8Mr Carr invited Mr Alameddine to attend a disciplinary interview on 11 March 2011. A transcript of the interview was made (Exhibit 1-A6). During the interview, Mr Alamddine claimed that the customer had said to him in Arabic at the control room "You're a fucking idiot, you don't know your job" and that he was going to complain. Upon being shown the CCTV footage of the customer, he conceded that he may have been mistaken about the customer becoming aggressive at that point. 9Mr Carr concluded that Allegations 2 to 5 were substantiated and on 8 July 2011 his Investigation Report was forwarded to the Disciplinary Review Panel (DRP) for consideration (Exhibit 1-A). 10On 25 July 2011 the DRP reviewed the evidence in relation to the Allegations and made a preliminary recommendation that Mr Alemeddine Appellant should be dismissed. On 27 September 2011, Mr George Stojkovski, General Manager, Customer Services, CityRail South and South West, wrote to him advising that, on a preliminary view, it was appropriate that he be dismissed, he was given fourteen days to make submissions in regard to penalty and to submit any further information or material that he might wish to have taken into account (Exhibit1-B) 11On 19 September 2011, Mr Alameddine provided a written response to RailCorp (Exhibit1-C) and in summary stated as follows: The customer had asked which station he had to get off at for the "swiss hotel" and that he was under the impression that the closest station would be Circular Quay. He claims that after the customer had left he was advised that the closest station was Town Hall, and he went to the platform to pass this information on. He acknowledged that he left his point of duty and left the Garrison open. He claimed that he had allowed the PSA into the control room due to it being hot. He also claimed that he is not in a position, as a CSA, to stop a person if he forces his way through the barriers as it is not his role to "do revenue protection". He apologised for his incorrect decisions and claimed that he has learned from his mistakes. 12On 26 September 2011, the DRP considered Mr Alameddine's response and confirmed their recommendation of dismissal. On 26 September 2011, Mr John Tsiros, Acting General Manager, Customer Services, CityRail South and South West signed a letter confirming that Mr Alameddine was dismissed effective 10 August 2011. He was paid four weeks salary in lieu of notice. Receipt of this letter was acknowledged by Mr Alameddine on 28 September 2011 (Exhibit 1-D). 13The actual CCTV footage was not viewed by the Board during the hearing. RailCorp relied on black and white still photographs taken from the CCTV footage (Exhibit 1- A13 to17). Issue(s) 14Mr Alameddine did not enter a plea on his Notice of Appeal, however it is clear from the written submissions of the parties and Mr Alameddine's Statement that he does not deny Allegations Two to Five and seeks reinstatement to his former position. It is therefore the task of the Board to determine the appropriate penalty for Mr Tauia's conduct. Respondent's Case 15RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. 16Ms Robinson made oral submissions in addition to the written submissions as filed (Exhibit 1) submitted that relevant provisions of the RailCorp Code of Conduct (the Code), as breached by Mr Alameddine, were detailed in the Statement of Mr Carr (Exhibit 1-A8) under "Acceptable behaviour and responsibilities" as follows: RailCorp employees ... 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: Put safety first in everything we do Always act in the best interests of RailCorp Maintain and promote high levels of acceptable behaviour Help to build and maintain a culture that is just and fair to all (known as a "Just Culture" in RailCorp) As an employee... 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 work at RailCorp you must: Carry out your duties carefully, safely, honestly, courteously and fairly Use your authority and delegation/s in an appropriate and unbiased way for the intended work related purposes Use RailCorp resources properly, efficiently and economically Treat members of the public and colleagues fairly, consistently and with respect Be honest and accurate in timekeeping and in meeting attendance requirements Create and maintain full and accurate records of work performed, including reasons for your decision making Provide fair, accurate and appropriate advice Present yourself in a businesslike and professional manner, i.e. neat, tidy and clean and wearing correct uniforms and specified safety equipment Not knowingly make a false statement Carry out all lawful directions from managers/supervisors to the best of your ability. 17It was submitted that by leaving his point of duty without authorisation, leaving the Control Room insecure and unmanned, allowing an unauthorised person into the Control Room and by failing to properly supervise the barriers at Bankstown Station, Mr Alameddine failed to: Always act in the best interests of RailCorp. Put safety first. Maintain and promote high levels of acceptable behaviour. Carry out his duties carefully, safely and fairly. Use his authority and delegation/s in an appropriate and unbiased way for the intended work related purposes. Treat members of the public and colleagues fairly, consistently and with respect. Be honest and accurate in timekeeping and in meeting attendance requirements. Provide fair, accurate and appropriate advice. Not knowingly make a false statement. Carry out all lawful directions from managers/supervisors to the best of his ability. 18Ms Robinson submitted that while Mr Alameddine had not entered a plea on his Notice of Appeal, in the course of the disciplinary investigation he had admitted that he was guilty of each of the four substantiated Allegations. It was therefore assumed that he was pleading guilty and seeking to alter the penalty of dismissal. 19It was submitted that despite his admissions, his version of events was riddled with inconsistencies and his evidence could not be accepted as accurate. He had shown a distinct lack of honesty throughout the investigation process, for the purpose of making himself appear to have made a series of innocent mistakes and errors of judgment. The glaring inconsistencies in his version of events indicated that his actions were not accidental, but instead showed a lack of customer service and dedication to his duties necessary in the role of Customer Service Attendant. 20Ms Robinson also indicated that it was appropriate that RailCorp had not provided any other reason for Mr Alameddine's actions due to the refusal of the customer to provide a statement. Railcorp did not have any detailed knowledge of what had happened on 20 November 2010, only a variety of accounts from Mr Alameddine that did not accord with each other and therefore could not be accepted as truth. 21Ms Robinson went on to summarise RailCorp's evidence submitting that the clearest example of Mr Alameddine giving an inconsistent account of events was in his motivation for following the customer to the platform, leaving his point of duty and the Control Room unmanned. In his initial response he claimed that the customer, when talking to him at the barriers, was "angry and aggressive" and that PSA Tawake accompanied him to the platform "because the person had become aggressive earlier and [he] was concerned the situation may escalate". He stated that he would not normally follow a customer that far to give him information, but "given he was angry and aggressive I decided to try and ease the situation", and that he was "trying to de-escalate the persons anger and avoid receiving a complaint, as he had previously threatened to submit". In short, Mr Alameddine's story was that the customer was angry and aggressive and threatened to complain, and that is why he followed him to the platform. 22Further, In the disciplinary interview on the 11 March 2011 Mr Alameddine changed his version of events. He conceded that "it might've been that I got that wrong, that he became more aggressive on the train more than up there." (page 21 - Exhibit 1- A6). This admission effectively nullified his motivation for following the customer to the platform. The CCTV footage did not show any signs of aggressive or angry behaviour from the customer, and further, his claim that PSA Tawake followed him to the platform because the person had become aggressive was contradicted by PSA Tawake's evidence that "I can say that the customer did not appear to sound or be aggressive towards me or Abdul" (Exhibit1-A18). 23It was submitted that Mr Alameddine had not been truthful or consistent in his responses and had been dishonest about his motivation for leaving his point of duty and leaving the Control Room unmanned. 24There was also inconsistency in Mr Alameddine's versions of the customer's enquiry at the barriers. In his initial response he claimed that the customer asked directions "to a hotel in the area". In the disciplinary interview he stated with respect to the hotel, both,..."it's somewhere on the north shore line", and, .."I can't remember which one but I knew it was in the city, like either from Central to Town Hall but it was definitely not where he was going." (pages 25 - 26, Exhibit1-A6). Then in his response to the preliminary recommendation of the DRP he gave significantly different detail, stating: "I was approached by a male who had enquired what station He has to get off at for the swiss hotel, I was under the impression that the swiss hotel was located at circular quay, After the passenger left my work area I was advised That the closest station to the swiss hotel would be town hall, not wanting to inconvenience the customer so I went down to the platform to pass on the information...(sic)". 25Not only did this statement contradict his earlier account of the customer's enquiry, it also presented a new motive for following the customer to the platform; that of not wanting to inconvenience the customer, rather than his earlier explanation of wanting to avoid a complaint due to the customer's alleged anger and aggression. 26It was submitted that, presented with such contradictory versions of events from Mr Alameddine, the Board could not accept his admission of having made an innocent mistake in leaving his point of duty and leaving the Control Room unmanned. 27With respect to Allegation Four, it appeared that Mr Alameddine had again been dishonest in an attempt to mitigate his actions. He claimed that "it was an extremely hot day" which is why he allowed PSA Tawake into the Control Room for his break. Mr Carr's enquiries into the temperature on the day in question reveal it to have been a maximum of 23.2 degrees Celsius (Exhibit 1-A22). 28With respect to Allegation Five, Mr Alameddine attempted to abdicate responsibility for the passengers who entered and left the station without a valid ticket while the barriers were unmanned. He claimed that it was not his responsibility to check the validity of tickets, which implied that he was of the attitude that his absence from the barriers was of no consequence with respect to the passengers who entered and left the station at the relevant time. As noted by Mr Carr, one of the responsibilities of a Customer Service Attendant is to minimise fare evasion and revenue loss. Mr Alameddine failed in this duty while absent from his point of duty. In addition, he failed to assist a female passenger in a wheelchair who required assistance through the barriers. By his actions he was derelict in the duties required of a Customer Service Attendant, and failed to provide even the minimum level of required customer service, that of being present at his point of duty in case his assistance was required. 29It was submitted that Mr Alameddine's role as a Customer Service Attendant placed obligations upon him to deliver customer service which met RailCorp's service standards, ensured customer complaints were resolved promptly and efficiently and ensured customers with special needs were adequately provided for. The role also required the Customer Service Attendant to minimise opportunities for fraud and revenue loss. On 20 November 2010 Mr Alameddine failed in each of these requirements. 30While Mr Alameddine might claim that, by following the customer to the platform to correct previous incorrect advice, he was attempting good customer service, and that it was an error of judgment to have left his point of duty to do so. It was submitted that the contradictory accounts of the incident set out above precluded the Board from accepting that Mr Alameddine had customer service in mind when he followed the customer, particularly in light of the complaint raised by the customer following their interaction. 31Further, while Allegation One, relating specifically to the customer, was not substantiated due to the customer not wishing to make a statement, the fact and content of his complaint remained, and it was submitted that the details of the interaction leading to the complaint had not been adequately or consistently explained by Mr Alameddine. 32Mr Alameddine's actions amount to a significant breach of the Code , and one which placed RailCorp in disrepute with a customer who had taken the trouble and inconvenience to make an official complaint. Mr Alameddine's actions also risked RailCorp being in disrepute with the customers who utilised the barriers while they were not manned by Mr Alameddine. 33Ms Robinson referred to the evidence of Mr Saboune who supported Mr Alameddine's claims that PSA Tawake being in the Garrison Room unauthorised happened all the time and he noted that when such unauthorised staff saw management they left. Mr Saboune also described Mr Alameddine as friendly, he talks to customers, he's known by them, and he's friendly with PSA staff. Mr Kovacsic's monthly briefings to staff reinforced that only Bankstown staff were unauthorised to be there. 34It was submitted that there was no question that Mr Alameddine committed four breaches of the Code and failed in his expectations as a Customer Service Attendant. The question remained whether dismissal was the most appropriate response to the four breaches. 35Mr Alameddine had attempted to explain his actions as a mistake and error of judgement. It was submitted that this explanation, in its various forms, was not sufficient to mitigate his failure to adequately perform his duties as a Customer Service Attendant. 36Mr Alameddine had an 8 year employment history with RailCorp and in that time he had been formally disciplined on four occasions (Exhibit 1-A7). It was notable that two of those occasions, in 2005, related to not being at his point of duty; the first being an incidence of AWOL from fire training, and the second being a failure to stay at his workstation until relief arrived and not securing keys. His breach of the Code of Conduct on this occasion is strikingly similar, but with the additional seriousness of the concurrent customer complaint and inconvenience to customers as shown on the CCTV footage. 37It was submitted that it was not in the public interest for RailCorp to retain an employee who failed to fulfil his duties as a Customer Service Attendant, and who was then dishonest about his motivation for doing so. He had been counselled for similar breaches before, a penalty which had not proved effective. His failure to give a consistent and truthful explanation about his actions on 20 November 2010 must preclude the Board from ordering his reinstatement. The penalty of dismissal was not only appropriate but necessary under these circumstances. In all of the circumstances the Transport Appeal Board should not alter the decision of RailCorp to dismiss Mr Alameddine. 38It was submitted that if the Board was minded to apply a penalty other than dismissal and reinstate Mr Alameddine then it would be best to be to a Station other than Bankstown so that he could focus on the requirements of his customer service role without the distractions of his friends on the staff or those that hang around Bankstown Station. Appellant's Case 39Mr Edgehill made oral submissions expanding in some detail on the written case as filed (Exhibit 3) and submitted that during the investigation Mr Alameddine had denied Allegation One, RailCorp's own investigation found that the Allegation could not be substantiated, and it was dropped by RailCorp. Therefore the content of this Allegation could have played no part in the reason to dismiss Mr Alameddine and it should not be considered by the Board as a reason to uphold his dismissal. 40It was submitted that during the investigation Mr Alameddine largely agreed to the events of each of the other Allegations; that he left his point of duty for four minutes when he followed the customer; that he inadvertently left the control room door unlocked when he left his point of duty for four minutes; that he had allowed another employee access to the Control Room on that day; that he was not there to check tickets while he was away from the barrier but stated that he left the barrier gates closed so passengers would have been required to put their tickets in the machines or force their way through the gate. 41Throughout the investigation process Mr Alameddine was cooperative and forthcoming, providing a written response to investigators and attending an interview with investigators where he answered all questions put to him. He admitted to leaving his point of duty and stated that he agreed that he should not have done this and made a commitment to try to not make such mistakes in the future. 42Mr Edgehill summarised the relevant evidence as given by Mr Alameddine about the events of 20 November 2010. He acknowledged that in Mr Allamedine's written response to the Investigator he had said that he followed the customer because the customer was angry and aggressive during their interaction at the barrier and he wanted to resolve the situation and avoid having a complaint made against him. Mr Alameddine agreed that this was a mistake in response to questions in his subsequent interview This mistake has been held up by RailCorp as an inconsistency and a reason to disbelieve Mr Alameddine. Even if this were so, it would clearly not be relevant to any of the alleged breaches that RailCorp contended had been substantiated). 43It was submitted that this was not an example of Mr Alameddine being dishonest or trying to cover anything up, but simply an honest mistake made in recalling an event that had happened more than four months prior. He corrected this mistake in the interview and in his statement to the Board. He also said in his statement that he had experienced this customer before and knew from experience that he was quick to anger and to make complaints. So when he said that he followed the customer to avoid having a complaint lodged against him, there was no reason to believe that this was not the reason that he went after the customer. 44It was submitted that in fact, no other compelling or evidenced reason had been offered for RailCorp as to why he followed the customer. Whether the customer became agitated or aggressive at the barrier or on the train, or whether Mr Alameddine had experienced him to be aggressive on other occasions and made a mistake in his retelling of the story, was not relevant. What was relevant was that Mr Alameddine followed the customer to try to avoid a complaint being made against him. This was what he had stated consistently throughout the process and there was no evidence available that disputed this. 45Mr Alameddine stated that the other customer, Abdul, also followed the customer and the two caught up with the customer on the train and while on the train the two customers got into an argument and Mr Alameddine tried to stop the argument by telling them both to 'shut up' and 'calm down'. Mr Alameddine and the customer named Abdul then left the train as it was about to depart and Mr Alameddine returned to his point of duty. He was away from his point of duty for only four minutes. 46It was submitted that Mr Alameddine provided this explanation for why he was away from his point of duty. He admitted in his responses, and his evidence, that this was the wrong thing to do and that it would have been better to approach the officer in charge at the station about the incident and not to leave his point of duty without permission at all, even for such a short period. 47RailCorp's submission was that Mr Alameddine's responses have been dishonest and self-serving. It is submitted that if this was the case, Mr Alameddine would not have told investigators that he told two RailCorp customers to 'shut up' as this would clearly be considered an inappropriate way to speak to customers. This demonstrated Mr Alameddine's statements throughout this process had been honest and forthright, even when to his detriment and not self-serving and dishonest. 48Further, Mr Alameddine also admitted in his statement that he left the Control Room insecure, in that he left the door unlocked, and agreed he should have locked it. 49On the issue of allowing an unauthorised employee entry to the Control Room, Mr Alameddine agreed that this happened but stated that he did not know the employee was not allowed to enter and that it was normal for cleaning staff to enter the control room and that many employees and managers allowed this. This was supported by the evidence of Mr saboune. It was submitted that it was reasonable to accept that this was the custom and practice for the workplace. Apart from there being no evidence to the contrary, it was normal human nature for someone to allow a co-worker entry to part of a workplace that was more comfortable. RailCorp's contention appeared to be that the cleaner was allowed to enter this room to clean it, but at all other times was banned and was to have his access blocked by other employees. This was a standard or rule very unlikely to be enforced or adhered to in a workplace such as a train station in suburban Sydney. 50Mr Edgehill referred to the evidence of Mr Kovacsics who agreed that Mr Alameddine was wrong to leave his point of duty but did not think that this was a serious offence. Both Mr Kovacsics and Mr Saboune suggested that normally such matters would be handled informally with counselling at the local level and Mr Kovacsics was not aware of such a matter being referred for investigation or discipline. 51It was submitted that RailCorp would no doubt say that this was a different reason to the one previously provided Mr Alameddine that it was a hot day and that is why he allowed the employee to enter. RailCorp had provided some evidence suggesting that it was 23 degrees Celsius at Bankstown Airport that day and appeared to be suggesting that was not hot enough to verify Mr Alameddine's comment. It was submitted that a cleaner performing manual labour on Bankstown Station on a day where it is 23 degrees at the Airport may very well feel hot and may wish to enter an air-conditioned room. The evidence relating to the temperature did not in any way discredit Mr Alameddine's earlier statement, just as his comment in his statement about cleaners being allowed in the room did not in any way contradict his earlier comment about it being a hot day. Mr Saboune, his direct manager, gave evidence that he himself allowed other employees such as cleaners into various premises at Bankstown Station. His evidence was that the Station staff were friendly and would often allow PSA's into different rooms when speaking to them. 52As to the allegation relating to not checking tickets, Mr Alameddine stated he left the gates closed and this would have caused people to use their tickets. There was no evidence to contradict this. He also went on to state that people may push through the barrier. This was true, but that was also true whether Mr Alameddine was there or not, and therefore was not particularly relevant. For obvious health and safety reasons, Customer Service Attendants were instructed not to confront passengers who forced their way through barriers. This was confirmed by the evidence of both managers who said CSA's were powerless to stop a passenger forcing the way through a barrier and would be committing as breach if they did try to take some sort of action. 53It was submitted that RailCorp had provided absolutely no evidence that discredited Mr Alameddine or that provided another reason for why he left his point of duty for four minutes. At no time did the customer who apparently made the complaint make any written statement or complaint to RailCorp. RailCorp had not provided any statement from any other staff member or person that gave a different reason for why he left his point of duty. For these reasons, Mr Alameddine's evidence must be accepted. 54The only evidence that RailCorp offered was evidence that appeared to support Mr Alameddine's version of events. For example, the Investigation Report prepared by the investigator referred to telephone contact with the customer who apparently complained. The report states at page 9: "When contacted, Mr Ayad became irate and abusive and did not want the matter to proceed. This behaviour may corroborate Mr Alameddine's assertion that Mr Ayad had become abusive towards him when he could not assist him with his enquiry". 55It was submitted that clearly this supported Mr Alameddine's assertions that the customer did become aggressive at some point during the interaction, that he had become aggressive in the past and that he was likely to complain. 56It was submitted that RailCorp had hit Mr Alameddine with four breaches of the Code of Conduct . Three of them related to one small incident (leaving the barrier for four minutes) and one of them was for doing something that was within the custom and practice of the workplace (letting another employee into the control room). While Mr Alameddine admitted to these actions, it was difficult to maintain that these mistakes were of a serious enough nature to amount to a breach of the Code of Conduct. What the absence from the barriers for four minutes meant that there was a lower level of customer service, Mr Alameddine's decision was to follow the other customer whether that was a decision that RailCorp wanted him to make or that he would make again in hindsight was irrelevant. 57It was submitted that if these matters were breaches, they were so minor that they should be dealt with at a management level. Dismissal was too harsh a penalty. 58It was also submitted that the RTBU was aware of no other occasion where an employee had been dismissed for such petty charges as these. For RailCorp to dismiss, rather than manage, employees who left their point of duty for four minutes was incredibly harsh and an enormous waste of resources. 59Mr Edghill contended that RailCorp's own submission made it clear that the reason that they were seeking to uphold Mr Alameddine's dismissal was because of the Allegation that they themselves said they could not substantiate. The problem was that RailCorp now appeared to accept the content and fact of the complaint, yet it was known and agreed by RailCorp that the content of the complaint could not be verified or sustained in any way. RailCorp wanted to dismiss Mr Alameddine for something they knew they could not substantiate. 60It was submitted that there was no written complaint or statement from the customer and no statement detailing reasons why no such complaint had been made. To simply accept, without evidence, that the complaint was true and to accept, without evidence, that the appellant had somehow scared the complainant out of making a complaint, would be a terrific injustice to Mr Alameddine. RailCorp argued that the context of the complaint was relevant. That was not accepted by the RTBU. 61It was submitted that Mr Alameddine had explained what happened and explained any alleged inconsistencies in answers he gave (even if it was accepted such inconsistencies existed). There was no evidence to dispute his version of events and no reason for Mr Alameddine to follow the customer to harass or threaten him and no evidence that he did. RailCorp's assertion that the reasons he gave were implausible and inconsistent was not the case and at no point had any independent evidence been put forward by or on behalf of this customer. 62Mr Edghill contended that what RailCorp's submission did show was that they accepted that the seriousness of the breaches they said were substantiated, depended on the reason that Mr Alameddine left his post. Those reasons were explained, reasonable and uncontested. On this basis there was no reason whatsoever to uphold RailCorp's decision to dismiss Mr Alameddine. 63It was submitted that, taking into account the seriousness of the substantiated Allegations, the available evidence, and Mr Alameddine's long and positive work history, it was appropriate for the Board to uphold Mr Alameddine's appeal and return him to his former position with back-pay. If the Board decided some remedial action had to be taken against Mr Alameddine due to the actions he readily admitted to, it would be appropriate for him to be counselled by an appropriate RailCorp employee about the process for leaving his point of duty. Respondent's Reply to the Appellant's case 64Ms Robinson rejected the RTBU's submissions that RailCorp had dismissed Mr Alameddine over an unsubstantiated allegation relating to his conduct towards a customer. She also rejected the implication made by the RTBU that RailCorp had asked the Board to accept that Mr Alameddine had scared the customer out of making a complaint as a misrepresentation of RailCorp's submissions. 65It was submitted that the customer's complaint was a necessary and relevant piece of evidence in this appeal as Mr Alameddine asked RailCorp and the Board to accept that the reason he left his point of duty without authorisation, left the Control Room insecure and unmanned, and failed to properly supervise the barriers, was in order to follow a customer he feared would make a complaint against him. 66It was submitted that Mr Alameddine's unacceptable behaviour occurred at about 1749 hours on 20 November 2010; the customer's complaint was logged at 2219 hours on the same day. When he was contacted by RailCorp on 22 November 2010 the customer gave additional details about the incident. Specifically, he described his enquiry to Mr Alameddine as having asked "How can I get to St Leonards?" and "where should I change so I can get to St Leonards?" . 67It was submitted that this was relevant evidence because it conflicted with Mr Alameddine's version of events. He gave varying accounts of the customer's enquiry, none of which accorded with the customer's version as follows: the customer asked directions "to a hotel in the area"; "a hotel in - on the - it's somewhere on the north shore line. I can't remember which hotel it was..."; then later alleged that the hotel was "the swiss hotel". In his statement of 12 January 2012 he stated specifically that "Abdul told me that the hotel was in Market Street near Town Hall". 68Ms Robinson contended that in both records of the customer's complaint (as contained in Exhibit1) he did not mention a hotel at all, and if it was in fact the case that the customer did not ask for directions for a hotel but simply how to get to St Leonards, then this nullified Mr Alameddine's alleged reason for following the customer to the platform. An explanation of how to get to St Leonards by train was something any station staff member should be able to give without having to ask another customer. 69It was submitted that the different versions of the customer's enquiry given by Mr Alameddine and the information he claimed to have obtained from another customer had changed with each of his responses. If his statement was accepted, then it must also be accepted that his recollection of the day in question had become clearer and more specific with the passing of time. This was implausible. 70It was submitted that as Mr Alameddine was inconsistent as to the question asked by the customer, and the answer that he planned to give to the question when he left his point of duty, the accuracy of the rest of his evidence must also be questioned. 71The Board was also asked to accept that he followed the customer to avoid having a complaint made against him. The customer's complaint was evidence that in fact being followed by Mr Alameddine was a significant factor about which he complained. Mr Alameddine attempted to justify his act of following the customer by describing the customer as someone who "would go to great lengths to, you know, to get a person in trouble". This opinion was proved incorrect by the customer's response to being asked for a statement; the evidence of Investigator Neal Carr is that the customer "did not want the matter to proceed" and refused to give a statement. It was submitted that these were not the actions of a person who would go to great lengths to get a person in trouble. 72It was submitted that the Board must take into account the customer's complaint in so far as it allowed the accuracy of M Alameddine's reason for leaving his point of duty to be tested. 73Ms Robinson rejected the RTBU claim that Mr Alameddine's evidence must be accepted as no other reason for leaving his point of duty had been identified. It was not the Investigator's role to speculate about, and present other possible reasons for Mr Alameddine leaving his point of duty, but to test the reasons presented by him. If his account of his interaction with the customer was consistent, it could be accepted, but as there were numerous inconsistencies, both with the customer's complaint and with each of Mr Alameddine's own versions of events, it was submitted that the evidence of Mr Alameddine must be considered inaccurate. 74Ms Robinson also rejected the RTBU submission on alternative penalty, that Mr Alameddine should be counselled by an appropriate RailCorp employee about the process for leaving his point of duty. His previous discipline history showed that this penalty wass ineffective as a result of the following: On 8 April 2005 he was AWOL from fire training, and was counselled. On 6 November 2005 he failed to stay at his workstation until relief arrived and to secure keys, and was counselled. 75It was submitted that as these previous breaches were strikingly similar to the current breaches, the penalty of counselling had been ineffective to change his conduct in the past. 76Ms Robinson concluded by submitting that the Board should disallow the appeal. Evidence 77RailCorp's evidence was contained in the Investigation Report (Exhibit 1- 2A) which included, inter alia, the Incident Report of the customer complaint; the various letters exchanged concerning the Allegations and the disciplinary process and outcome; the transcript of the Disciplinary Record of Interview; the Code of Conduct ; Mr Alameddine's Ellipse Personal History Report; black and white photographic stills taken from the available CCTV footage of the incident at Bankstown Station (from 3 vantage points) and Statements from the following RailCorp employees from Bankstown Station: Mr Joshua Tawake........ Presentation Services Attendant (Exhibit 1-A18), Mr Haissam Saboune....Duty Manager (Exhibit 1-A19), Mr Peter Kovacsics.......Station Manager (Exhibit 1-A20), Mr Alexander Taylor.....Customer Service Attendant (Exhibit 1-A21). 78The RTBU required Mr Tawake, Mr Saboune and Mr Kovacsics for cross examination. Mr Tawake did not appear and Ms Robinson was not able to contact him on the day of the hearing before the Board. 79Mr Saboune, Mr Kovacsics and Mr Taylor were interviewed and had all viewed 2 DVD's of CCTV footage and described in their statements what they saw. Mr Kovacsics also examined the photographic supplements placing them in separate sections for comment. The evidence of the three employees was generally the same in each statement (with only Mr Kovacsics not mentioning the last two items set out below) and the chronology of the incident taken from the CCTV footage can generally be summarised as follows: All identified Mr Alameddine as sitting at the main barriers eating; Mr Tawake was sitting in the Control Room opposite Mr Alameddine; the customer (general description provided) walks over to where Mr Alameddine is sitting; has a short conversation with him; a short time later the customer goes down the nearby stairs to Platform 1 and waits for an incoming train at the end of the platform; two males who appear to be friends of Mr Alameddine (both generally described - and with one wearing "camouflage shorts") enter the barriers; a short time later they follow Mr Alameddine down the stairs with Mr Tawake; Mr Tawake leaves the three males at the bottom of the stairs; the three males walk along Platform 1 as the incoming train arrives; they approach (or Mr Alameddine approaches with the two males behind him) the customer and appear to try and stop him and attempt to say something to him; he keeps on walking back along the platform and boards the train; the three males continue to follow the customer along the platform; Mr Alameddine passes Mr Taylor CSA; the male in camouflage shorts boards the same carriage as the customer; Mr Alameddine enters the same carriage as the customer; a short time later they both leave and go back up to the barriers; the barriers are unattended in Mr Alamedine's absence; a large number of people enter and leave with none checked for valid tickets; a female customer in a wheelchair having difficulty; a male customer appearing to be stuck between the red barrier gates before climbing over; Mr Alameddine and his friends walk through the barriers continuing to have conversation with each other. 80Mr Taylor additionally stated that Mr Alameddine appeared to speak to him as he went past, but he could not recall what he said. 81All three RailCorp witnesses generally confirmed that on their observation of the footage they considered that Mr Alameddine did not carry out his duties as a CSA in accordance with the Bankstown Staff and Duty Sheets as required (which they were also shown and were confirmed by them and were included in Exhibit 1) 82Mr Kovacsics confirmed in evidence that when a customer asked for directions that it was expected that a CSA give directions if they knew the answer. He indicated that Bankstown was a busy station and that locating customers on the platform could be too time consuming and outlined the alternative options that could be utilised by a CSA, such as calling the staff member on the platform via the radio. If a CSA had to leave the barrier he should notify the officer-in-charge and if he didn't relieve the CSA personally, he would arrange for someone else to stand there. PSAs were there to clean the trains. Mr Tawake was a Rover and cleaned trains and there was no reason for him to be in the Garrison Room. They all knew who was authorised and who wasn't and they had team briefings monthly where it was touched on and reinforced. It was something he liked to do "to keep them on the ball" and he did not think that was unusual. 83He went on to say that that if he had seen a Rover in there, he would have asked them why they were there, and asked them to leave if they did not have a good enough reason to be there, such as for their own safety or security. He had not seen Mr Tawake in there and so had not asked him to leave. 84Mr Kovacsics said Mr Alameddine had also been told on previous occasions to remain at his point of duty and had been told about grooming guidelines. 85Mr Kovacsics also indicated that the two males identified in the CCTV footage were "local boys" and came in and out of Bankstown on a regular occurrence. He could also walk out the door and a customer would want to speak to him, they had customers who came every day, all day, five or six occasions as the Station was a thoroughfare from one side of Bankstown to the other. 86Mr Kovacsics confirmed that he had experienced a number of occasions over his years of service when as a manager he might see an employee not doing all they should, or, to the required standard. He would speak to them informally and if it had to be taken further would refer the matter to his Customer Service Manager, if they were escalated above that level he would not be aware of that. He agreed that he would have come across incidents such as Mr Alameddine's breach (leaving the point of duty) and the employee would have been spoken to but not referred for any sort of disciplinary action or dismissed. 87Mr Kovacsics had not experienced a situation where he had found the Garrison door unlocked and unattended, there was usually a staff member present, or in the vicinity, or the door was closed. If he found such a situation, he would secure the door (it does not automatically close and lock) as he carries keys and his first concern would be the whereabouts of the staff member to find out why they had left because they did sometimes have emergencies. 88Mr Kovacsics agreed that he had observed occasions when CSAs were not carrying out their duties properly in terms of checking tickets and that he would have reminded them of their role. He would not refer those employees to his Customer Service Manager. 89In relation to Mr Alameddine's response to Allegation 5, he confirmed that if a person was to approach the barriers at Bankstown Station and the orange gate was closed, then they could just push through and enter the station and that a CSA was not supposed to do anything because that would be confrontational and they would not be expected to chase them in any way. 90Mr Kovacsis was taken to his statement concerning the CCTV footage and his summary of the failures of Mr Alameddine in carrying out his duties where he stated at 22(d) that "He has, as it appears, to follow, harass and intimidate a RailCorp customer". Mr Kovacsics responded by saying: The two young fellows that went with him, they're known to Bankstown, they're known to be young kids that cause trouble at Bankstown, so my presumptions were they're in the company of Abdul, Abdul is up to no good, so that made me think that. Yeah. 91He agreed that he believed Mr Alameddine harassed or intimidated a customer because of the people that he was with at the time he followed the customer, that was what gave him that impression. He acknowledged there was nothing in Mr Alameddine's actions on the CCTV footage that showed him to be harassing and intimidating the customer and the footage didn't show any interaction between Mr Alameddine and the customer. 92He also acknowledged that in the footage showing Mr Alameddine facing the customer as the customer turns to go in the other direction down the platform, that he did not say anywhere in his statement that he spoke to him and that it could have been some other person on the platform. 93Mr Kovacsics also indicated in re-examination that he did not view all of CCTV footage and was shown a series of photographs. 94He also indicated that where a customer made a complaint to the 'Your Say' line it went directly to their Customer Service Managers and was then sent back down to them and they would formulate their investigations by asking the employee for information. It was the option of the CSM to refer it further for investigation. 95Mr Saboune's oral evidence was the Mr Alameddine was "a lovely boy", "a very friendly boy" people wanted to come next to him, he liked working with him, and a lot of people wanted to talk to him. Mr Saboune agreed that he looked out for him , "and I treat him like my son". 96He was not aware of the incident involving the particular customer at the time, as he was busy in his office. That day the lifts were not working and that involved him doing tasks to arrange a technician etc., He gave detail of having to arrange a taxi (also involving paperwork) for the woman in the wheelchair (a regular customer at Bankstown) because the lifts were down so she could get to Lakemba. 97He agreed that Mr Alameddine would have known that the lifts were down and that if a CSA was at the Garrison they would ask her for her ticket. He did not know what Mr Alameddine was doing when she pushed through the barriers. There was no telephone to make contact with and while there was a two-way radio sometimes the battery was flat or there was interference, he wasn't aware of whether the battery was flat that day. 98He agreed that if Mr Alameddine had called him on the radio he would assisted him if he was not busy, they had no-one else to leave there and the Garrison would just be left, but the door was supposed to be shut but there was nothing in the room except the timetable. 99In cross examination Mr Saboune said he did not write his statement himself plus he would not make a statement against him (Mr Alameddine). The Investigator wrote the statement , he didn't want to do it. 100Mr Saboune generally indicated that CSA's sometimes had to leave the barrier, it was not a safety critical area, if that happened the gates would be closed and the customers would put in their tickets. 101He also said he would allow, as a manager, cleaners into his office, to clean or maybe hand in lost property or send a fax etc. He did not know whether PSA Tawake went in by himself or was invited in. 102Mr Saboune agreed in re-examination that he was shown the CCTV footage (by way of 2 DVD's) and asked a series of questions concerning whether at certain points Mr Alameddine breached the requirements of his job but he was not asked why he went downstairs etc., and that he read through his statement before he signed it and was given the opportunity to make corrections. 103Mr Alameddine did not deny that he left his point of duty, being ticket barriers on Bankstown Station on that day. He deposed that the reason he left his point of duty was that a customer had approached him at the barrier and asked for information, speaking in Arabic, on how to get to a hotel in the city, he believed it was the Swiss Hotel. He was not sure where that hotel was so he was not able to help the customer with his question, the customer then left the ticket barrier and walked to platform one. He then asked another customer where the hotel was, the other customer (named Abdul) was also a regular at the station and Mr Alameddine knew that he had spent a lot of time in the city and knew where different hotels were. Abdul told him that the hotel was in Market Street near Town Hall. Mr Alameddine then left his point of duty and followed the customer to give him this information and Abdul followed him. 104He denied that the other person described as talking to him at the barriers also followed him down the stairs, he was not with them and said that the footage did not show that. 105Mr Alameddine deposed that he wanted to give the customer the correct information and did not want him to complain against him. He spoke to the customer on the train and told him the correct information. They were still speaking in Arabic and the customer said he did not want to know any more because they might tell him the wrong place. At this point Abdul and the customer got into short argument and they were swearing at each other in Arabic. He tried to stop the argument and told them both to shut up and calm down. After this the train was about to leave so he and Abdul left the train and he returned to his point of duty. The entire incident was very short and he was away from his point of duty for only a few minutes. 106He was aware that this customer had complained about someone before because that had happened at a station he used to work at. 107Mr Alameddine deposed that his decision to leave his point of duty and follow the customer was made on the spur of the moment and he realised after that he should have informed the Officer-in-Charge and got permission to leave the barrier. 108Mr Alameddine deposed that in his letter of response to the Investigator, as part of the investigation, he stated that the reason he followed the passenger was because the customer was aggressive and abusive to him at the barrier. This was a mistake in the letter. The customer only became abusive and aggressive when on the train, not at the barrier. He was worried about getting a complaint because he had experienced that this passenger was often very quick to get angry and aggressive in situations like this and to make complaints. The letter was of 27 February was made a long time after the event and he also got another employee to help him write it as he not very good with writing things like this. 109He agreed that the letter was dated 27 February 2011 and related to allegations about 20 November 2010, but maintained that "it wasn't fresh" and they only had a few days to do it. He agreed that the person who helped him with the letter was a CCTV operator at Bankstown who was not present on 20 November and was not a witness to the incident. That Operator asked him what happened and based the letter on what Mr Alameddine told him. It was when he subsequently saw the footage that it made him really remember. He had not seen the CCTV footage before the letter was written. 110When Mr Alameddine was asked in cross examination what reason he now gave for leaving his point of duty, given that he had given a few different accounts in the past he said: A. Well the main reason is because the man he was, he didn't really understand English properly, so I went - I said that I would go down and help him, like tell him the correct information after I had found out. 111He agreed that whether the customer spoke English wasn't an issue because they spoke in Arabic but went on to say: A. No, I meant like if he wanted to ask someone else and he didn't know how to ask or something. 112He maintained that the customer asked him how to get to the Swiss Hotel, agreed that he did not tell the Investigator that because he couldn't remember the name, and now remembered because he had spoken to the person that he had asked at the time. He denied that the person was a friend, he was just someone from the station, he saw often, He agreed he knew his name, he was a regular. 113He agreed that he had often been asked by customers how to get to certain stations or where they changed lines they asked about streets, buses, ferries and he had been asked about how to get to a particular hotel, it was not unusual. 114He did not agree that he was rude or aggressive to the customer, he just wanted to avoid a complaint and that was not because he was rude to the customer. 115He agreed that when he was on the platform he walked past CSA Taylor but disagreed that it was an option for him to give that CSA the information to pass on to the customer as he had more important duties looking after trains and answering telephones. 116He also denied speaking to the customer on the platform, he just walked past him. Mr Alameddine said that when he was down there he was trying to find the customer and work out if that was the man or not. He denied that it was not his intention to give him information when he followed him down onto the platform. 117Mr Alameddine did not deny that he left the Control Room unlocked and agreed that he should have locked it before leaving the area but made a mistake and forgot at the time. 118Mr Alameddine deposed that agreed that he let an unauthorised employee access the Control Room when he let PSA Tawake into the room but did not think he was unauthorised to be there. It was normal for PSA staff to enter the Control Room, they were there very often, the managers at the Station knew this and he was not aware of anyone getting in trouble for letting a PSA in the room and he had not been told to keep them out of the room. PSA staff often entered the Control Room because it was air conditioned and a comfortable place for them to go. 119He said that the Rovers were always there at the Station, it was normal, managers knew about it, it was not the first time, and Mr Tawake was only having a rest and a chat with him. 120Mr Alameddine deposed in response to Allegation 5 that he believed he left the wide gate closed when he left the barrier, and the barrier gates were also closed. This would have meant that passengers would have had to put their tickets into the machines to get through. It was possible that passengers could have forced their way through the barrier gates. However, even when they were on the barriers, if a passenger tried to force their way through the gates they could not do anything to stop them as they were instructed not to confront passengers who forced their way through the gates without a ticket because it is not safe to do so. It was their job to ask passengers to use their ticket to go through the gates and this was what he tried to do when he was on the barriers. 121Mr Alameddine deposed that he regretted the incident that had lead to all of the charges against him, it was a small incident that involved him leaving the barrier for only a few minutes. He accepted that he was wrong to leave the barrier unattended at all, but he did not threaten or abuse anyone. He had never heard of anyone getting dismissed for leaving a barrier for four minutes before and did not think it was fair that he be dismissed for this. He had worked at RailCorp for around eight and a half years, had been a good employee and worked hard. He also did not think his actions in leaving the barrier for four minutes was a fair reflection on his work for RailCorp in this time nor was it a good reason to throw away an eight year career. He liked his job at RailCorp and believed he was a good employee who had a lot to offer. He wished to return to work at RailCorp and was committed to doing his best to not make mistakes like this in the future. Findings 122This 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 Alameddine. 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. 123Whilst Mr Alameddine entered no plea in his Notice of Appeal to the Board as filed on 7 October 2011 he has, through his witness statement and submissions made on his behalf, not denied Allegations Two, Three, Four and Five (Allegation One was withdrawn by RailCorp as not being substantiated) as to his breaches of the Code of Conduct that occurred on the 20 November 2010. The Board's function in this appeal is, in effect, to determine whether the disciplinary punishment imposed by RailCorp in relation to those breaches is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. 124The Board has not been assisted in its consideration of this matter by the absence in RailCorp's evidence of the relevant CCTV footage which all parties but the Board appears to have had the benefit of viewing. The only evidence before the Board was rather poor quality black and white still photographs, in sequence, and the narrative description of Mr Kovacsics, Mr Saboune and Mr Taylor on viewing the CCTV footage and the photographic material. Although it must be said that Mr Kovacsics in re-examination said he had not viewed the CCTV footage which, given his statement, would appear to be entirely contradictory. 125If RailCorp seeks to rely on CCTV footage in the future then in appeals before the Board as currrently constituted that CCTV footage must be in evidence and available for the Board's own examination in its consideration of the evidence and submissions as a whole. 126There is no doubt that Allegations Two, Three, Four and Five have been substantiated and admitted by Mr Alameddine. However in the absence of RailCorp pressing Allegation One then Mr Edgehill is essentially correct in submitting that those breaches of the Code although admitted by Mr Alameddine, of themselves, are not serious enough to warrant the very severe and extreme penalty of dismissal. 127That is not to say that the Board accepts Mr Alameddine's evidence in total. Frankly the Board does not believe Mr Alameddine's explanation for leaving his point of duty on 20 November 2010 and following the customer down onto the platform and onto the train and finds it highly implausible. 128Mr Alameddine may well have been motivated in his actions by concern about the customer making a complaint, however that complaint might well have been about the manner in which Mr Alameddine spoke to him at the barriers and just what he said, rather than his supposed inability to give him information about the location of a particular hotel. 129The Board also considers it is quite clear from the evidence of the witnesses that the two other persons involved were well known to Mr Alameddine, but very much doubts they were customers. It is clear the person in the camouflage shorts pushes his way through the barrier without inserting a ticket and the other person simply jumps the barrier. 130What is not clear, to the Board at least, from the poor quality of the photographs is whether the second person (identified as having a shaved head) also follows Mr Alameddine and the other young man in shorts along the platform after the customer as detailed in the statements of the RaulCorp witnesses. The photographs do not show him boarding the train only the young man in shorts and Mr Alameddine. The Board also notes that in the original complaint made by telephone and as detailed in the 'Ministerial Correspondence and Customer Relations- Advice Requested' the customer refers to the two men entering the carriage and the City Rail employee remaining on the platform. Mr Alameddine was certainly asked questions in the Disciplinary Interview about entering the carriage and whereabouts the customer was and where he was. Another scenario could be that Mr Alameddine indeed did not do any harassing or intimidating (apart from the mere action of following the customer) but that the person (or persons) with him carried out that behaviour. If indeed all the young man in shorts was doing was telling the customer where to locate a certain hotel in the city then one wonders why that resulted in an altercation that, on Mr Alameddine's evidence, required him to intervene to the somewhat extreme extent of supposedly telling both of them to shut up and calm down. 131The Board accepts that that would all be speculation unsupported by evidence, and particularly any evidence from the customer concerned, and takes the matter no further particularly in the light of the withdrawal by RailCorp of Allegation One as being unsubstantiated. 132However it is the fact (or existence) of the complaint has led RailCorp to investigate the incident and resulted in the other four Allegations which are substantiated on the evidence and the admissions of Mr Alameddine. Absent the complaint there would be no allegations. 133The Board agrees with RailCorp's submissions and finds that Mr Alameddine has been less than truthful about his reasons for leaving his point of duty and his account has clearly varied somewhat on each occasion it has been given. The Board does not accept that this was a mere mistake on his part or due to the time that had elapsed. 134The evidence of the breaches of the Code committed by Mr Alameddinne are quite clear, admitted by him and substantiated by the two RailCorp who gave evidence before the Board. 135Although it has to be observed that it is of some concern that Mr Tawake failed to appear or give any explanation for his non-appearance. The Board also notes that Mr Saboune sought to distance himself, and almost disassociate himself from his statement, and frankly fell over himself to not give any adverse evidence against Mr Alameddine apart from conceding the breaches of his duties as a CSA. The Board has not seen the like before from a witness when either as constituted as the Board or as the Industrial Relations Commission. 136The Board would also observe that Mr Alameddine's overall standard of conduct as a Customer Service Attendant is a departure from that which could normally be accepted from a RailCorp employee. It is clear from the photographic evidence that his grooming was inappropriate (his shirt hanging out), below the standard expected and in stark contrast to the those RailCorp employees who frequently appear before the Board in Promotional Appeals in their uniform and reflect nothing but credit upon themselves and RailCorp. The Board also notes that Mr Alameddine was inappropriately apparently eating whist at the barrier and adjacent to the garrison room and in full view of the public. 137However having said all that, Mr Edgehill is quite correct in his submissions that the breaches of the Code that Mr Alameddine committed cannot, by any stretch of the imagination, possibly warrant dismissal (again it is emphasised that this in the absence of Allegation One). Those submissions must be accepted by the Board in all the circumstances. 138The Board accepts that normally speaking a CSA leaving their point of duty for four minutes, even leaving the garrison door open and the barriers closed but unattended, would only attract informal counselling at a local level, unless of course there was an entirely unacceptable repetition of such conduct or some serious safety/security situation arose as a consequence. Certainly the penalty of dismissal is entirely disproportionate to the nature of the breaches by Mr Alameddine of the Code of Conduct that have been substantiated. 139The Board must in all the circumstances uphold the appeal and set aside RailCorp's decision to dismiss Mr Alameddine and reinstate him to his position of Customer Service Attendant with RailCorp without loss of continuity. He is entitled to an order for back pay until the date of his dismissal but discounted by the four weeks pay in lieu of notice given to him by RailCorp. However he is not to be returned to Bankstown Station. Given the nature of that location (a walkthrough access point linking both sides of the Station to the suburb) the Board is of the firm view that he must be transferred to a station that does not provide such access of the general public who are not necessarily customers, and a station where he can be more closely supervised and have his ongoing conduct monitored, preferably in an environment where there are more Senior Customer Attendants (such as in a Leading Hand position) who can also provide an example to him of appropriate dress and conduct. He is also to receive counselling on his unacceptable breaches of the Code , preferably at a senior level such as the appropriate Customer Service Manager. Order(s) 1.The appeal is allowed; 2.The decision of RailCorp to dismiss Mr Alameddine with effect from 28 September 2011 is set aside and he is reinstated to employment as a Customer Service Attendant with RailCorp but at station other that Bankstown Station that in the opinion of Railcorp is considered suitable without loss of continuity within 14 days. 3.RailCorp is to make a payment within 14 days of the date of this decision to Mr Alameddine of the amount of pay he would have received (discounted by the four weeks pay in lieu of notice paid by RailCorp) but for RailCorp's decision to dismiss him. 4.Mr Alameddine is to be counselled for his breaches of the RailCorp Code of Conduct. Elizabeth Bishop Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2012