Transport Appeal Boards New South Wales Medium Neutral Citation: Broome v Railcorp [2012] NSWTAB 5 Hearing dates: 07/02/12, 08/02/12,09/02/12. Decision date: 09 March 2012 Before: Ritchie C (Board) Decision: Catchwords: Long term managerial employee terminated. The appellant had not completed Secondary Employment Forms accurately -not recognising actual or potential conflict of interest with companies he dealt with at work and who he organised to sponsor a football team that he coached. Found that appellant had the opportunity to register through Secondary Employment Declaration Forms his interest but did not. Found on balance of probability that appellant had sought to mislead respondent in the investigations. Appeal dismissed. Category: Principal judgment Parties: Mr Barry Broome (Appellant) Rail Corporation of NSW(Respondent) File Number(s): TAB 1236 of 2011 DECISION Introduction 1Mr Barry Broome ( the appellant) filed a Notice of Appeal-Transport Discipline on 5 September 2011. Mr Broome had been terminated by his employer Rail Corporation of NSW (the respondent) on 31 August 2011. Issue(s) 2The appellant stated that he was not guilty of the following charges: Allegation 4 (from the first allegation letter dated 16 December 2010). That Mr Broome commenced secondary employment as coach of the Wollongong University Rugby League Football Club (the Titans) prior to seeking or obtaining approval to engage in this secondary employment: Particulars of the allegation are: a) He submitted a signed Secondary Employment and Voluntary Work Application Form dated the 22 June 2009 to his Manager Mr Rob O'Hanlon for his consideration and his approval for Mr Broome to perform secondary employment as Coach of the Titans. b) On 1 October 2009 he was granted approval to perform secondary employment with the Titans. c) He commenced secondary employment as coach of the Titans prior to 22 June 2009. d) In his Secondary Employment and Voluntary Work Application Form he did not disclose that he had already commenced secondary employment as coach of the Titans. Allegation 5 (from the first allegation letter dated 16 December 2010). Mr Broome failed to declare an actual or potential conflict of interest arising between his duties as a Ralcorp employee and his secondary employment as coach of the Wollongong University Rugby League Football Club ("the Titans"). Particulars of the allegation are: a) On 22 June 2009, he signed a Secondary Employment and Voluntary Work Application Form seeking approval to perform secondary employment as coach of the Titans. b) He submitted his signed Secondary Employment and Voluntary Work Application Form to his Manager, Mr Rob O'Hanlon for consideration and approval. c) On 1 October 2009 he was granted approval to perform secondary employment as coach of the Titans. d) He declared in his secondary Employment and Voluntary Work Application Form that there was no conflict of interest between his secondary employment and RailCorp duties, working hours or interests. e) During the 2009 Rugby League Football season financial sponsors of the Titans including Multi Civil & Rail Services which at that time, and continues to be, a supplier to RailCorp both through Coniston Depot & Rail Services. f) In his position as Team Manager of the Coniston Depot, and in the period coinciding with the 2009 Rugby League Football season, he had the capacity to allocate, or be involved in the allocation of, Ralcorp work to Multi Civil & Rail Services. g) During the 2010 Rugby League Football season financial sponsors of the Titans including Multi Civil Rail, Global Coffee Solutions, Taylor Rail, J &M Van Toll, N & M Plant Hire, Staff Innovations, Cram Fluid Power and JUROR Services. These entities were at that time , and continue to be , suppliers to Ralcorp. h) In his position as team Manager of the Coniston Depot, and in the period coinciding with the 2010 Rugby League Football season, he had the capacity to allocate, or be involved in the allocation of , RailCorp work to Multi Civil & Rail Services, Global Coffee Solutions, Taylor Rail, J&M Van Toll, N&M Plant Hire, Staff Innovations, JRO Services and Cram Fluid Power. Allegation 6 (from the first allegation letter dated 16 December 2010). That Mr Broome made false and misleading representations in his application for approval to perform secondary employment as a coach of the Wollongong University Rugby League Football Club (the Titans) Particulars of the allegation are: a) On 22 June 2009, he signed a Secondary Employment and Voluntary Work Application Form seeking approval to perform secondary employment as coach of the Titans. b) He submitted his signed Secondary Employment and Voluntary Work Application Form to his Manager, Mr Rob O' Hanlon for his consideration and approval. c) He stated in the Secondary Employment and Voluntary Work Application Form that the Titans had no direct/indirect relationship with his position in RailCorp, or any other areas of RailCorp, and that there was no conflict of interest between his secondary employment and his RailCorp duties, working hours or interests. d) Mr Broome made the above representations in circumstances where: I) During the 2009 Rugby League Football season financial sponsors of the Titans included Multi Civil & Rail Services which was at the time and continues to be a supplier to RailCorp through Coniston Depot and elsewhere. ii) In his position as Team Manager of the Coniston Depot, and in the period coinciding with the 2009 Rugby League Football season, he had the capacity to allocate, or be involved in the allocation of, RailCorp work to Multi Civil & Rail Services. 3With respect to allegations 1 and 2 , as expressed below, Mr Broome originally pleaded not guilty but altered that plea to guilty. Allegation 1 ( from the second allegation letter dated 24 March 2011). In the response Mr Broome knowingly provided false and/or misleading information to Ralcorp. Particulars of the allegation are: a) He stated in his Response that he did not have any involvement in sponsorship arrangements for the University of Wollongong Rugby League Club and he provided a letter from Sam Belo, President, University of Wollongong Rugby League Club, stating that Mr Broome had no input 'on the matter of Sponsors'. This information was provided in circumstances where : (I) Between September 2009 and November 2010, Mr Broome actively sought sponsorship for the University of Wollongong Rugby League Club from a number of businesses including the following businesses who at that time, and continue to be RailCorp Suppliers through Coniston Depot and elsewhere: Taylor Rail Australia Pty Ltd; Multi Civil and Rail Services; J&M Van Tol Crane Trucks; NIM Plant Hire : Cram Fluid Power Pty Ltd; JRO Services and Staff Innovations Pty Ltd. Allegation 2 (from the second allegation letter dated 24 March 2011). That Mr Broome solicited gifts or benefits for the University of Wollongong Rugby League Club from Ralcorp Suppliers: Particulars of the allegation are: a) Between September 2009 and November 2010, he solicited financial sponsorship for the University of Wollongong Rugby League Club from the following businesses who were at the time , and continue to be , RailCorp Suppliers through Coniston Depot and elsewhere: Taylor Rail Australia Pty Ltd; Multi Civil and Rail Services; J&M Van Tol Crane Trucks; NIM Plant Hire; Cram Fluid Power Pty Ltd; JRO Services and Staff Innovations Pty Ltd. b) On 10 July 2010 using the Ralcorp email system he solicited a donation from a RailCorp Supplier, Blackwoods Pty Ltd, with such donation to be used as a raffle prize on a "Trivia Night" being conducted on behalf of the University of Wollongong Rugby League Club on 31 July on 31 July 2010. Respondent's and Appellant's Cases 4It was the respondent's case that the appellant on his signed 2007-08 and 2008-9 Annual Employee Declaration forms failed to nominate whether he did or did not undertake secondary employment. On his signed 2009-10 Annual Employee Declaration Forms he nominated that he did undertake secondary employment and that he understood that he must complete an application form. 5In a signed Secondary Employment Voluntary Work Application form dated 22 June 2009, the appellant sought approval to undertake secondary employment as coach of the Wollongong University Rugby league Club (theTitans) for a period of 12 hours per fortnight comprising of coaching sessions and match day commitments. He nominated that the Titans did not have any direct/indirect relationship with his position at the respondent or any other areas of the respondent or any other NSW Government Department. He also declared that there was no conflict of interest between his secondary employment and his duties, working hours or interests with the respondent. 6It was the respondent's submission that that the appellant had been involved with coaching football teams from 1999. He commenced coaching a 3 rd grade team in February 2009. At that time he had not completed a Secondary Employment and Voluntary Work Application because he believed as his coaching did not exceed five hours a week it complied with the Secondary Employment and Voluntary Work Procedure ( the procedure), version 1.2 at the time. In May 2009 he was made aware of a new version of the procedure (2.0) which became effective 25 May 2009. 7The appellant submitted a Secondary Employment and Voluntary Work application on 22 June 2009 for six hours per week, which was granted approval on 1 October 2009. The appellant continued coaching during this period on the assumption that existing work would be approved providing it did not conflict with the requirements of his work with the respondent. The respondent stated that proceeding under an assumption is contrary to the requirements of the Procedure and the Code is insufficient excuse for the appellants breach. It was submitted that employees must seek approval prior to commencing such work and can not commence secondary/voluntary work until written approval is received. As he had not notified the respondent of previous coaching prior to 22 June 2009, the respondent was not in a position to assess the merits of this secondary employment/voluntary work. 8On his declaration dated 22 June 2009, he declared that there was no conflict of interest between the Titans and the respondent and there was no direct/indirect relationship with his position at the respondent or any other areas of the respondent. It was the respondent's submission that both declarations were incorrect and that conflict of interest existed with respect to the appellant's association with theTitans. 9It was the respondent's view that individual sponsors of the Titans were also suppliers to the respondent. Records showed that the appellant had been involved in the requesting or authorising officer with respect to a respondent's supplier MCR. The appellant had demonstrated his capacity to be involved in the allocation of the respondent's work to MCR. 10In 2007 the appellant withdrew from a Tender Evaluation Committee in respect to Request for Tender because he had a close personal relationship with one of the companies owner. This owner had once been under the appellant's control at Coniston. This the respondent stated demonstrated that the appellant had knowledge and understanding in 2007 of what may constitute a perceived or potential conflict of interest between his personal and work interest. The appellant admitted that when he commenced coaching the Titans in 2009 he was aware that MCR had been a sponsor of the club since 2005. 11The company Taylor Rail is a supplier to the respondent and is a financial sponsor of the Titans. It submitted invoices to the respondent for the calendar year 2009 to the sum of just under one million dollars. Whilst the appellant was not involved directly as an authorising officer in allocations to Taylor Rail, it was submitted that there was an obvious perception of, or a potential conflict of interest between the appellant's work duties and his role as a coach of the Titans. 12The company J&M Van Tol is a financial sponsor of the club and a supplier to the respondent. It did not commence being a sponsor of the club until after the appellant became coach. It was submitted that there was an obvious perception of, or a potential conflict of interest existing between the appellant's job with the respondent and his role as a coach with theTitans. 13The company N&M Plant Hire is a sponsor of the club and a supplier to the respondent. During the 2010 calendar year in allocations where the appellant was involved as either requesting or authorising officer, N&M Plant Hire invoiced the respondent for just under thirty thousand dollars. This company did not become a sponsor of the Titans until the appellant commenced as coach. It was submitted that there was a perception of or a potential conflict of interest existing between the appellant's work duties and his role as a coach of theTitans. 14The company Staff Innovations is a sponsor of the club and a supplier to the respondent. It is in the labour hire business. In the last five years it has been paid over six million dollars by the respondent. Whilst the appellant had not been directly involved as a requesting or authorising officer in allocations to this company, it was submitted that he may have influenced or had some involvement in the allocation of work. He attended a meeting in Sydney at the respondent's office on 16 June 2009 with this company to discuss a contract extension and review non conformances arising from an audit report. This company did not become a sponsor of the Titans until after the appellant commenced as coach. It was submitted that there was a perception of or a potential conflict of interest between the appellant's job with the respondent and his role as a coach with the club. 15The company Cram Fluid Power is a sponsor of the club and a supplier to the respondent. The appellant has been the authorising officer in allocations of work to this company. This company did not become a sponsor of the Titans until after the appellant became a coach. 16The company JRO Services is a sponsor to the club and a supplier to the respondent. Records show that the appellant was either the requesting or authorising officer in allocations to this company. This company did not become a sponsor of the Titans until after the appellant became the coach. 17It was submitted that there was an obvious perception of or a potential conflict of interest existing between the appellant's duties with the respondent and his role as a coach of the club given its position as a supplier to the respondent through Coniston Depot and elsewhere and the appellant's involvement in the financial sponsorship arrangements surrounding the recruitment and continued support of the Titans by this company. 18It was the respondent's submission that the appellant had failed to declare an actual or potential conflict of interest arising between his duties with the respondent and his secondary employment as a coach of the Titans. Also that the appellant made false and misleading representations in his application for approval to perform secondary employment as a coach of theTitans. 19It was the appellant's case that whilst the appellant had been coaching football teams in the Illawarra area for some time and was manager of the SG Ball side, he only commenced coaching the club's third grade team in February 2009 and first grade in 2010. The appellant believes his immediate managers were aware of this involvement. 20At the time of his appointment, the relevant secondary employment policy that was in place only required approval to be sought for a limited range of voluntary work. In particular, voluntary work that required approval and disclosure was either emergency services work or for more than 5 hours per week. As a result he did not declare the change in voluntary work because he believed he would not be over the five hours. When the change in policy came in May 2009 the appellant sought approval. The appellant rejected the respondents statement that he received payments from the Titans in 2007-2008 and 2008- 2009. He did receive an honorarium when he managed the SG Ball team but this compensation for any expenses incurred in performance of his duties. 21When the appellant had to fill in the required form in 2009 it was mid season and was already coaching for the Titans. He submitted that the form did not differentiate between those that were already carrying out voluntary work and those that were applying to carry out voluntary work since the new policy commenced. The appellant was unaware, as there were no transitional arrangements, that he was required to cease his voluntary work and stand aside under the new policy until it had been approved. 22At face value there was no conflict of interest between the Titans and the respondent. Any monies received by the appellant during 2007-8 and 2008-9 were reimbursement for expenditure only. It was not clear how the payment of the honorarium to cover expenses indicates there was or was not a conflict of interest between his role as a coach and his role with the respondent. 23It was their submission that for the purposes of an application for secondary employment Multi Civic and the respondent do not have any direct influence or connection to the appellant's position as coach. In his view that the conflict of interest had to be between the Titans and the respondent. The Titans was not its sponsors, it was the Committee, the coaches and the players. The secondary employer was the club not MCR. His involvement with the procurement of plant was minimal, particularly since the introduction of the ARIBA system. Whether a piece of equipment was required was determined usually by project engineers, with his approval signifying that a process had been followed or if finances were available. He did not source the plant. 24The appellant submitted that a conflict of interest even if only perceived, only arises if the Titan's sponsors are considered and this is not what the respondent requested through the application for secondary employment. It does not appear to anticipate third parties. There was no conflict of interest between the appellant's job with the respondent and a coach with theTitans. 25There did exist at the time of the appellant completing the secondary employment application, an indirect relationship between the appellant and the sponsors of the club such as MCR. If this was so then it was not the intention of the appellant to mislead the respondent. 26The appellant rejects that he was in a position to determine what suppliers of plant or labour hire services would be used and only on rare occasions would he even be involved in the process of requesting plant or equipment. Because of the remoteness between the Titan's sponsors and his position with the respondent, would the appellant realise that such a relationship would have to be declared to his managers. 27At the time that the appellant submitted his form most of the suppliers were not sponsors of theTitans. It is therefore not reasonable to find that a document was "false and misleading", due to actions that occurred several months after the application was submitted. 28The appellant submitted that the dismissal was too harsh for these offences given his employment history. Given the procurement systems that the respondent has put in place there is limited ability for anyone to influence decisions that will benefit a particular supplier. The appellant submits that the investigation did not properly categories his role in the purchasing process. He is classed as a "Requesting/Approval Officer" which combines two separate roles in the procurement process. The appellant was judged on what he was believed to have done in relation to procurement rather than what he actually did. The appellant did not manipulate the respondents procurement systems to benefit himself. Evidence 29The respondent called three witnesses. 30Mr Derek Wilson works for the respondent in the Investigations Unit. He filed a statement and was required for cross examination. He investigated the allegations that were made against the appellant and completed an investigation report which became part of the evidence. 31Mr Jared Laughlan works for the respondent as a HR Policy Advisor within the Human Resources Planning & Policy. He commenced in August 2009. His role is the development of HR policies and the provision of advice to the Business. He stated that that as a consequence of ICAC recommendations a revised Secondary Employment and Voluntary Work Procedure came into effect on 24 May 2009. Staff then had to complete a declaration each year confirming whether they are or not in secondary employment or voluntary work. If so the employee must also confirm that they have obtained written approval and that there has been no changes in circumstances since that approval. It re-enforced the existing requirement for all employees to seek and obtain written approval prior to commencing secondary employment or voluntary work. In the future one only had to re-apply if an employee's circumstances changed. Voluntary work exceeding five hours per week continued to have to seek approval. 32Mr Thomas Wood filed a statement and was required for cross-examination. Mr Wood stated that he works for the respondent as a Forensic Investigator within the Investigation Unit. He has been in his current role since 12 August, 2010. He stated that he has carried out numerous investigations both before he joined the respondent and since. He advised he was involved in the investigation of and analysis of data behind the investigation report of Mr Derek Wilson. 33Mr Wood outlined the various accounting systems(ELIPSE, PHIPS, ARIBA and ICMS) that exist or did exist within the respondent. For the various procurement options available, the respondent designed policies, guidelines or procedures for employees to follow. 34Mr Wood explained how the ARIBA system works and why it was developed(an outcome of the recent 2007/8 ICAC inquiry). He stated that no system is incorruptible or infallible and that through investigations he had uncovered how employees may manipulate the system. He stated that the appellant had a critical role as financial approver at the Coniston Depot. He did not agree with the appellant's comment that the financial approver was a "tick and flick" position. To counter criticism from the appellant's case Mr Wood through annexures to his statement differentiated the appellant's position as either the "requestor" or authoriser". It showed that the appellant was involved as requesting officer in $367,118.63 worth of allocations, of which $300, 382.50 was to Multi Civil &Rail (MCR). He noted that the method of specifying particular plant requirements was a means of nominating the preferred supplier. In cross examination he stated that there was no evidence the appellant had sought some piece of plant in particular that would implicate him in terms of misappropriation of funds. He did state that the ARIBA system could be manipulated to obtain a particular response. 35The appellant called four witnesses. 36The appellant stated that he has worked for the respondent since 1983. He stated that he had long been a supporter of rugby league and he had coached or managed both club and junior representative teams. This had been done on a voluntary basis although he did receive an honorarium for expenses when he was manager of the Illawarra Steelers S G Ball team from 2006 to 2008 and assistant coach in 2010. He commenced coaching the Titan's third grade team in 2009 and Ist grade team in 2010- 2011 seasons and received only reimbursement for expenses. 37His understanding of the respondent's Secondary Employment Policy prior to May 2009 was that voluntary employment need only be disclosed if the work was to exceed 5 hours per week. None of his previous voluntary roles took him over the 5 hours per week. In May 2009 he was advised of the changes to this policy. As all voluntary work now had to be disclosed he completed a form in June 2009 believing his employer was the University of Wollongong Football Club. He also believed that he would now be working 6 hours per week. The form he completed did not make any differentiation between applying for permission for voluntary work that had not been required to be disclosed under the previous policy or for voluntary work that had yet to commence. He did not believe that the Titans had a direct relationship with the respondent therefore there was no conflict of interest in relation to his position. His application was not approved until October 2009. On submitting his form to his manager he believed that his manager was aware of his coaching and the appellant continued to coach. 38He was aware that Multi Civil & Rail (MCR) had been a sponsor of the club since 2005. He also knew that MCR was a supplier to the respondent. It was his interpretation of the Secondary Employment Policy that he did not have to report this as a potential conflict of interest on his form. His interpretation was that the form was asking of the relationship between the Titans and the respondent. In his mind there was none. He did not see that the relationship between the Titans and its sponsors created any relationship with the respondent. In his view he was performing voluntary work for the Titans not for its sponsors and that there was no conflict of interest between his coaching duties and his work duties. 39He admitted that in preparation for the 2010 season he approached a number of companies in the area some of which were suppliers of goods/ services to the respondent to become sponsors to theTitans. He denied he used his position at the respondent to leverage sponsorship with companies. 40He stated that the introduction of the ARIBA he has had limited , if any input in determining who would supply goods/services out of the Coniston Depot. He stated that he did not have any involvement in determining what plant /equipment may be required , over and above what the Depot had. He stated that the overwhelming majority of his involvement in the approval process was seen to him to be a "tick and flick." He believed that he was never asked by project engineers regarding his opinion on what equipment should be used. He was involved in labour supply not capital supply. He denied that he was under any obligation to Staff Innovations or they to him. 41During his time with the Titans he never received any payments nor did he receive any benefits from any of the companies that he had approached nor did he make any promises, offers or guarantees that he would be able to provide any benefits to a company other than what was involved in the Titan's sponsorship package if they agreed to sponsor the Titans. 42He stated that over his employment of 28 years with the respondent he has only received one formal warning for sending an inappropriate email. 43Mr Mark Wroblewski stated that he is the owner and Director of Taylor Rail Australia Pty Ltd which is a rail maintenance and construction company. He said his company is a supplier to the respondent through competitive tender or expressions of interest. In either 2009 or 2010 his company became a sponsor to the Titans after the appellant approached him in 2009. He said that he agreed to support the Titans partly because he knew the appellant .His company also sponsors a number of other sporting clubs in the area. He has known the appellant for over ten years first meeting him when he worked for another company and the appellant was the contact for price lists for tender with the respondent. He stated that he has not had any business dealings with the appellant since he bought his company but he does live reasonably close to the appellant and has seen him in various public places and at functions. At no stage has he ever asked for or received a benefit from the appellant because of his sponsorship with theTitans. 44Mr David Blount is the Director of Cram Fluid, a company that provides goods/services to the respondent. He stated that his company is a sponsor of the Titans along with other sporting organisations. The appellant approached him in 2009/10 to become a sponsor and he agreed. $500 in 2010 and $1000 in 2011. He stated that at no stage had he sought or received a benefit form the appellant through his sponsorship with theTitans. 45Mr Stephen Latham is an employee of the respondent and is currently an APW 3C Infrastructure Worker at the Coniston Depot. He stated that he provides administrative support for the Team Leaders at the Coniston Depot. He stated that he uses the ARIBA system on a daily basis for the requisition and the receipt of labour hire employees. In his statement he went through the process to order equipment. He stated that he remembered only on one occasion the appellant requesting plant through him. In his experience the appellant had little input into the requesting of equipment and the selection of suppliers to provide that equipment. Findings 46With respect to allegation 4 which the appellant has pleaded not guilty, he stated that he was not required to complete a Secondary Employment Form under the old policy prior to the introduction of the 2009 because he did not carry out his voluntary work for more than 5 hours per week. When he completed the new form in June 2009 he believed he would be working 6 hours a week. Included in the Form is a declaration under which he signed. One of the dot points is that the person signing has read and understood the Secondary Employment and Voluntary Work Procedure(the Procedure). At the time of signature the latest Procedure it states under sub heading : 5.3 Employees considering secondary employment or voluntary work. All employees who are considering secondary employment/voluntary work(as defined in this Procedure) must seek written approval prior to commencing such work. and not commence secondary employment /voluntary work until written approval is received. Applications for secondary employment/voluntary work should not be considered to be approved unless approval in writing is received. 47The appellant did not cease his coaching for the club but continued coaching until the end of that season. In giving evidence the appellant stated that he was never advised that he would have to stop coaching and it did not enter his head that it was a requirement. A reading of the Procedure by the appellant would have clarified his position. 48It is my finding that the appellant is guilty of allegation 4. 49Allegation 5 goes to the issue of the appellant failing to declare an actual or potential conflict of interest arising between his duties as an employee of the respondent and his secondary employment as coach of the club. In 2009 season Multi Civil and Rail Services (MCR) were both sponsors of the club and suppliers to the respondent. In the 2010 season Multi Civil Rail, Global Coffee Solutions, Taylor Rail, J &M Van Tol, N&M Plant Hire, Staff Innovations, Cram Fluid Power and JRO Services were both sponsors of the club and suppliers to the respondent. 50The Secondary Employment /Voluntary Work Application signed by the appellant on 22 June 2009 asks: Does the Business have any direct/indirect relationship with your position in RailCorp, any other areas of RailCorp or any other NSW Government Department ? The NO box was ticked. Does the Business supply goods or services to RailCorp either directly or indirectly ? The NO box was ticked. 51The Annual Employee Declarations (Ex 6) which was signed by the appellant on 16/6/10 stated that he did partake in secondary employment or voluntary activities and that there had been no change in circumstances since approval was granted. It also stated that he must advise his manager immediately in writing if these circumstances change. The Board was not provided with any further documentation signed by the appellant that his circumstances had changed and he had notified management. In giving evidence the appellant stated that whilst he was aware when he commenced training in February 2009 that MCR was a sponsor, he did not believe there was anything there that he could be associated with a perceived conflict of interest. He just did not see the perceived conflict at the time. 52The appellant confirmed that it was he who had brought Taylor Rail, J&N Crane Hire Truck Hire, Cram Fluid Power, N&N Plant Hire and Staff Innovations to the Titans to be sponsors, through his dealings with them at the respondent and his personal experiences. 53The appellant was asked the following questions from the Board: Q.Any change ? Next year did you have any change in attitude, 2010? A. 2010, Commissioner, yeah there was a change because they went into the first grade competition. Okay, so there was a fair few more sponsors came on board so then , you know , but I still didn't see there was a potential conflict of interest. Q. Naive ? A. Yes, yes, very. I led a compartmentalised life. There's my work, then there was coaching football and I didn't see the relationship with my coaching because it was voluntary into, you know... Q You were active in getting sponsorships? A. Yes, I was , yes. Q. And the sponsorships that you were active in getting also had a relationship with RailCorp ? A. Yes, they did. Q. Don't you see that as a big problem ? A. I did but not as a significant issue, you know, in relation to conflict of interest, yeah. Q. Would not it be fair to say, and you've been in the rail business for many years and then this inquiry that ICAC ran whenever it was , 2007, 2008 whenever it was, must have shaken RailCorp up a lot... A. It did, it certainly did. Q..it would have got a lot of publicity amongst the troops ? A. It did, it did very much, yes. Q. It's hard to be naive when you've been in the game for nearly thirty years. A. I said I was-it was a compartmentalised life, I used to - there was my football and there was work as well, yeah. 54Whilst the appellant responded that he compartmentalised his life between his work and his football coaching I do not accept that this philosophy was constant in his actions. He clearly contacted particular companies that he had a relationship through his work with the respondent and actively sought them to sponsor and or provide prizes for the Titans. To not recognise the actual or potential conflict of interest that may arise from these actions is most difficult to believe. 55The President of the Titans via email to the appellant (dated 9 February 2010) clearly requested the appellant to approach MCR and Taylor for sponsorship dollars. The appellant in evidence stated that he was approached by the President Mr Bello because of his contacts with the people at MCR. 56The appellant was asked by the Board ; Q. And then when you filled out the 2010 declaration at work which has since become exhibit 6 you still believed that there was no change in the way that you were operating between your role at work and it would seem your increase in activity in sponsorship at the football club. A. I increased my sponsorship activity but I did not believe that it was significant enough to-at the time I didn't believe it was significant enough to warrant ,yes, to warrant any changes to the way I was thinking. Q. Well would you agree the way you were thinking has contributed to your downfall? A. Exactly, yes. I would , yes. That's the way I was thinking. I was incorrectly thinking about that. I wasn't thinking about the bigger picture. I was just thinking about assisting the club which I didn't categories at the time as a secondary employer because they were a sporting organisation. 57The evidence of Mr Wood detailed the work the appellant did in either being the requestor or the authoriser in procuring goods/services for the respondent by companies that were sponsors for the Titans. He did not find anything in his investigations that showed that the appellant had misused the system. The appellant always believed that his employer was the Titans which was not in conflict either actual or potential with the respondent. It was this thinking that led him to complete the Secondary Employment/ Voluntary Work Application and the Annual Employee Declarations in the manner that he did. 58It is my finding that the appellant should have noted the obvious potential conflict of interest when he completed those forms, taking into consideration the active role he played in approaching named companies for sponsorship for the Titans through his relationship he had built with them through his work with the respondent. 59I also confirm that there was no evidence that the appellant used his position with the respondent to gain favour or benefit for himself from the Titan's sponsors. 60The appellant originally pleaded not guilty to allegation number 1 and 2 but on the first hearing date this was changed to guilty. It is clear from the evidence that came before the Board that the appellant played an active role in the arranging of sponsorship of companies to the Titans who were suppliers to the respondent, and that he solicited gifts from companies for the Titans who were suppliers to the respondent. 61It was accepted by the appellant that the ICAC inquiry into alleged corruption at RailCorp that took place in 2007/ 2008 did create a great deal of discussion with the respondent's employees. I find it difficult to accept the appellant's response that he did not recognise the connection between the companies he dealt with in his job with the respondent, and the same companies that he took action to get them to sponsor the football team that he coached. His failure to recognise this obvious connection and the potential conflict of interest that it raised is not acceptable. 62I note the email that went between a Mr Belo President of the Titans and the appellant dated 9 February 2010. It states in part: Have you approached MCR about giving us a few more $$$ to become our major sponsor....Front of Jersey of Both Grades more than likely, as we don't have a reserve grade sponsor...Unless you want to approach MCR for $15000 package and Taylor fro $8000 Package (obviously not at those prizes, unless you can pull it off ), but as much as you can get them. Another email dated 24 February 2010 from the appellant to a Mr Lincoln Turner and Mr Belo stated: Lincoln, by asking the players on 150 to drop to $100 saves $900. The players on the $150 base need some incentive to play 1 st Grade given they are already accepting we have signed others to higher payment structure. These players plus the ones not wanting to be paid anything are the backbone of the club and should not be asked to take a payment cut. I will knock on a few more doors for some additional $500 sponsors. If everyone tries to get a few more we should cover the shortfall. The following day an email from Mr Belo to the appellant and Mr Turner stated: I think we need to support these guys, most of them have been with us for ages...and it's a relative small saving. Some other sponsors would be good also. We all need to try and find some . Not just Baz, he does done loads. Also Linc and co. we need to have a meeting to discuss what we are doing with REGO payments and finalise it. 63In correspondence dated 17 January 2011 on a University of Wollongong TITANS letterhead, Mr Belo wrote to Whom it May Concern expressing the sponsorship process for the club. He expresses in part the following: As sponsorship is a crucial part of our business it was a Committee decision to create a sub committee for Sponsorship amongst others. This was headed by Elliott Capner in the interim and has now been taken over by myself. This committee consists of members of the executive; there is no input from Barry Broome or any other coaching staff on the matter of Sponsors and what tier's allocation should be given. This correspondence was attached to the appellant's response to the allegations. The contents of this correspondence flies in the face of the previous emails that flowed between the appellant, Mr Bello and Mr Turner. It is my finding based on the balance of probability that the appellant would have known this when he submitted his response to the allegations and therefore he sought to mislead the respondent. Hardly the actions of a manager. 64The appellant held a managerial position and in my view should have completed the Secondary Employment/Voluntary Work Application and the Annual Employee Declarations with far greater care and thought. He was given the opportunity to declare the change in circumstances with respect to sponsorships with the Titans but he did not. 65Taking into consideration my findings and the guilty pleas to the allegations, the TAB sees no grounds to intervene in support of Mr Broome. In the circumstances, it believes that his dismissal was warranted. The TAB therefore dismisses the appeal Mr Broome has lodged. 66Notwithstanding my findings and final determination I note the appellants long period of employment with the respondent and I strongly recommend that consideration be given by the respondent for the appellant to be provided with an appropriate Rail Safety Worker card if requested. D.Ritchie 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: 09 March 2012