Byrne v RailCorp [2012] NSWTAB 6

Transport Appeal Boards New South Wales Medium Neutral Citation: Byrne v RailCorp [2012] NSWTAB 6 Hearing dates: 20/02/12, 21/02/12 Decision date: 15 February 2012 Before: Ritchie C (Board) Decision: Catchwords: RailCorp employee terminated due to two allegations made against him. The appellant admitted part of one and denied the rest. Appellant accused of giving a heil Hitler salute and tracing 'SS" on a driver's back. Also accused of giving a massage to the driver's shoulder's and arms and placing his hand down past the belt line of the driver's pants and kissing the driver. Board found allegations proven, refused appeal. Cases Cited: Bringshaw v Bringshaw [1938] HCA 34;(1938) 60 CLR 336.: Farrugia v RailCorp TD/&@ of 2009.; Police v Abraham [2011] NSWLC6; Rv Porteous [2003] NSWCCA18 Category: Principal judgment Parties: Mr K Byrne (Appellant)

Rail Corporation of NSW (Respondent) Representation: Mr Darams of Counsel (Appellant)

Ms A Baxter of RailCorp(Respondent) File Number(s): TAB 1103 of 2011

DECISION

Introduction 1Mr Kevin Byrne filed a Notice of Appeal-Transport Discipline on 27 July 2011. Mr Byrne( the appellant) was employed by Rail Corporation of NSW (the respondent) as a train guard when he was terminated. The appellant pleaded not guilty. The appellant's date of dismissal was 15 July 2011.

Issue(s) 2The appellant was provided with correspondence which terminated his employment and stated the two allegations which stated were substantiated. Allegation 1. It is alleged that you breached the RailCorp Code of Conduct and /or the RailCorp Dignity and Respect in the Workplace Procedure by subjecting Lee Kemp to inappropriate behaviour. Particulars of this allegation are: a) On 10 July 2010 you were rostered to perform duties as train guard between the hours of 15:57 and 23:55; b) About 16:00 hrs you approached Lee Kemp, train driver, on Platform One, Hornsby Station and told him that he looked good in his uniform and looked like a police officer; c) You then stood beside Mr Kemp and made a 'Nazi' style salute and used the words " Heil Hitler", d) You then stepped back behind Mr Kemp and with your fingers traced the letters 'SS' on his back; e) This behaviour was neither invited nor wanted by Mr Kemp. Allegation 2. It is alleged that you breached the RailCorp Code of Conduct and/or the RailCorp Dignity and Respect in the Workplace Procedure by subjecting Lee Kemp to sexual harassment and/or inappropriate behaviour. Particulars of this allegation are: (a) On 10 July 2010 you were rostered to perform duties as train guard between the hours of 15:57 and 23:55. About 16:40 hrs at the Hornsby Station you joined a service as a guard. This service was being driven by Lee Kemp; (b) Upon that service arriving at the Chatswood turnback, you followed Mr Kemp to the forward driver's compartment; (c) At the driver's compartment you took hold of Mr kemp's hair and twirled it between your fingers and said to him " don't tell anyone will you". (d) You then placed your hands on Mr Kemp and rubbed his shoulders and back; (e) Whilst engaging in this behaviour you asked Mr Kemp " Are you gay or bisexual?" and made the comments, "I can still cum twice a day even at my age." "All men would have bisexual tendencies, you can't say that if a guy saw another guy on the street he wouldn't think to himself that he is good looking." (f) You then commenced to rub Mr Kemp's arm upon which he said to you " Don't". You continued to rub his arm and replied " Oh its ok, people should love and respect each other." (g) Whilst rubbing Mr Kemp's arm you said "Women say that I'm good with my tongue and men say I'm good with my mouth." (h) You then put your hand down into Mr Kemp's pants underneath the beltline at the back of his trousers; (i) This behaviour was neither invited nor wanted by Mr Kemp. 3In correspondence dated 11 August 2011, directed to the appellant from the respondent it stated in part: For the purpose of conciliation, RailCorp can disclose that both allegations 1 and 2 were substantiated on the grounds that your misconduct amounts to inappropriate behaviour under the RailCorp Code of Conduct. Allegation 2 was not substantiated on grounds of sexual harassment.