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. Respondent's and Appellant's Cases 4The respondent filed six statements . All were required for cross examination. 5Mr Michael Crimmins stated that he was an employee of the respondent holding the position of Investigator within the Investigation Unit. He stated that in May 2011 he completed an investigation report into the misconduct of the appellant. A copy of the report was attached to his statement. The findings in the report were that on the balance of probabilities the appellant did subject Mr Kemp to inappropriate behaviour was substantiated with respect to both allegations. In his cross examination Mr Crimmins stated that as Mr Kemp had participated in the conversation raising the subject about the Thai man he did not pursue the issue of sexual harassment. The allegation of inappropriate behaviour came from the physical touching of Mr Kemp by the appellant. He was also satisfied that no one could get behind the driver's seat in the cabin. in his view the photographs that became evidence showed this. 6Mr Lee Kemp stated that he is a train driver with the respondent having been employed for the past eight years. He stated that on 10 July 2010 he was rostered for work from 11:27 to 19:10 starting at Hornsby Station. At approximately 4.00pm he was standing on the platform speaking to another driver Peter Rowley. They were approached by the appellant who commented to Lee Kemp that he looked good in his uniform and that he looked like a police man. The appellant then gave a Nazi style salute and said "Heil Hitler". The appellant then walked behind Mr Kemp and using his fingers, scribed something on his back mentioning the letters "SS". The appellant then left the scene. Mr Rowley stated that the appellant seemed happy to see Mr Kemp and that he may like him. 7Mr Kemp stated that he had only known the appellant for the past five years through his work with the respondent. 8On the same day at 4.40pm the appellant joined Mr Kemp's train at Hornsby. Mr Kemp said that he drove the train to the Chatswood turnback and arrived about 5:18pm. He then walked through to the other end of the train and saw the appellant in the guard's compartment. They discussed how long they would be there and then the appellant invited Mr Kemp to stay. Mr Kemp advised : "No, I have to cut in and kick this old girl in the guts" The appellant replied that he would come with him and proceeded to follow Mr Kemp to the drivers compartment. Mr Kemp stated that this is not a normal occurrence for a guard to come into the drivers cabin in instances such as this. On arrival at the driver's compartment all the lights were on and it was very hot. Mr Kemp started to get the train prepared and complete his 'memo' book. The appellant came back to the door of the drivers compartment and turned off the guard's compartment light and then turned off the driver's compartment light. 9The appellant then came to the door of the drivers compartment and reached over to Mr Kemp and grabbed a piece of his hair. He asked what it was and was told it was a tail. He kept hold of Mr Kemp's hair and twirled it around his fingers and said: " Don't you tell anyone will you." He then asked Mr Kemp: " Are you gay or bisexual." Mr Kemp answered : "Not bisexual." The appellant then stated : " I can still cum twice a day even at my age." The appellant then started to rub his neck which lasted for a brief time. He then started to rub Mr Kemp's shoulders using both hands and then he felt the appellant's hands on his back moving them in a flowing way. Mr Kemp stated that he felt that his hands and underarms begin to sweat profusely. He felt like a block of ice and tensed up and moved away by leaning towards the drivers seat. The appellant then said: "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." Mr Kemp stated that at this stage he did not feel as if the appellant was going to hurt him but he felt concerned for where this was leading to. 10The appellant continued to rub Mr Kemp's back up and down and then he started to rub the right arm moving his hand up and down. Mr Kemp said: "Don't." The appellant kept rubbing the arm and replied: " Oh its ok, people should love and respect each other." The appellant then said : "Women say that I'm good with my tongue and men say I'm great with my mouth." He then went on to comment that when he was a little boy he was walking behind his mother with his father and his father said that his mother had beautiful legs and that his father was a doctor. 11The appellant continued to rub his shoulders and back and then he moved his hand down Mr Kemp's back and he felt the appellant's hand go into his pants beneath the belt line. Mr Kemp felt like trying to get out of the train through the front window. 12Mr Kemp's mobile phone rang and he answered it and sought to drag the conversation out as long as possible. During the phone call the appellant moved away. The phone call lasted about eight minutes which was two minutes before the departure time. 13The appellant came back and started to rub Mr Kemp's shoulders and back again. Mr Kemp said that he tensed up again and when he got the signal to depart he said: "Ok we have the road." The appellant said: "Oh yes, the catch points have closed." Mr Kemp said: "Ok lets go." The appellant then kissed the right side of Mr Kemp's cheek and left. 14When Mr Kemp arrived at the Hornsby station he said he was shaking and sweating. He saw Michael Atchison and beckoned him over to his window. He told Mr Atchison that he felt sick and he told him what had happened. Mr Atchison told him to report the matter. When he finished the trip he walked the length of the train he saw the appellant who told him he was working the next day and Mr Kemp replied "okay". Mr Kemp got to the drivers compartment at the end of the train and then moved the train onto the platform when given the signal. He was then relieved by another driver Mr Paul Skenna. 15He then made inquiries about making an official report. He contacted Jim Davey who is an OSM at Hornsby who advised him to write out what had happened. Mr Kemp said he went home and that night wrote down what had happened. The times he quoted on the paper he said were only approximates. He said that at no time did he say or do anything that would invite the appellant's behaviour towards him on that day. He considered the appellant's behaviour towards him on that day as totally inappropriate and considered it sexual harassment. 16In cross examination Mr Kemp stated that he did not know why he had not told the investigator that he had responded to the appellant by speaking about the "Thai Man". He also had not mentioned that the appellant had allegedly traced "SS" on his back after making the heil Hitler salute. He alleged that the appellant turned the lights off in the drivers cabin but he didn't think to tell the appellant to turn them back on. He denied that the appellant stood behind the seat when the massage was taking place. He believed it was not possible for someone to stand behind. He said that photograph number 5 best showed the position he was in when the massage took place. He moves the seat slightly forward when he drives but not to the extent shown in photograph 9. He believed that the appellant's hand stayed down below his beltline for ten to fifteen seconds. His comment about trying to get out of the situation via the front window was not to be taken literally but the thought of , what am I doing , where am I going ?. He stated that the reason he did not get up and try and walk away was because he was very frozen and nervous. He confirmed that the appellant kissed him on his right cheek. He advised that when he eventually saw Mr Atchison he felt sick. He stated that he had never had any previous problems with the appellant. 17Mr Peter Rowley stated that he is a train driver for the respondent and has worked there for 34 years. He has known Mr Kemp for nine years and the appellant for eleven years. On 10 July 2010 he was speaking to Mr Kemp on Hornsby station when they were approached by the appellant. The appellant spoke to Mr Kemp for one to two minutes and then as he was leaving he walked behind Mr Kemp and at that point he saw an arm movement by the appellant towards Mr Kemp. He could not see if there was any contact as the appellant was behind Mr Kemp. As the appellant's arm moved towards Mr Kemp he backed away and moved towards Mr Rowley. Mr Kemp then looked at the appellant with a look of shock and amazement. At that point he said to Mr Kemp: " I think he fancies you ." Mr Kemp responded : " Yeah I think so." 18In cross examination he stated that he did not see the appellant give the Nazi salute or trace "SS" on Mr Kemp's back. 19Mr Paul Skennar stated that he is a train driver with the respondent and has been with the respondent for twelve years since rejoining the respondent. He said he does not socialise with the appellant even though he has known him since he previously worked for the respondent back in 1998. He said that he has known Mr Kemp for seven years and has not known him to socialise with the appellant. 20On 10 July 2010 at approximately 7.30pm to 7.45pm, times which he said were a guess he received a phone call from Michael Atchison who advised that Mr Kemp was upset with an incident that happened at the Chatswood turnback. He was asked to go and check how Mr Kemp was as Mr Kemp seemed upset and distressed and may need someone to talk to. 21He met Mr Kemp on the platform and was asked by Mr Kemp had Mr Atchison called him. Mr Kemp then told Mr Skennar what had happened, being asked by the appellant was he bi or gay, cut or uncut and that the appellant had good reports about the way he uses his mouth. He said the appellant followed him to the drivers cabin and flicked the driver's cabin light off. He was told that the appellant put his hands on his shoulder and then ran his hand under Mr Kemps belt and into his pants. He was told that Mr Kemp was shocked and did not know how to react and couldn't move from his seat. Mr Kemp told him that he told the appellant not to do it and that to leave the cabin because it was nearly time to leave. As Mr Kemp was talking to Mr Skennar he noticed that he was shaking and he had sweat marks under his arms. Due to his shaking Mr Skennar offered Mr Kemp his jumper. 22Mr Skennar said that he then gave Mr Kemp Jim Davey's number to report this matter. Later Mr Kemp advised that he was going to report the matter to the Injury Hotline. 23In his evidence in chief he stated that his conversation with Mr Kemp went for more than half an hour. He found Mr Kemp a bit , like jittery, aggravated. He was sweating and trembling at the same time. He had not seen him like that before. 24He also advised that he did not believe that a man could stand behind when a driver was sitting in the seat. He later advised that if he adjusted the seat, a person may be able to squeeze behind it. He also said that he spoke to Mr Atchison about the incident after the date that it occurred. 25Mr Michael Atchison stated that he was a train driver with the respondent for the past twenty six years. He stated that he has known Mr Kemp for the past ten years. He has known Mr Byrne for the past twenty years. He stated that he has never socialized with Mr Byrne but he said that he knows that he is gay due to an approach he made to him about four to five years ago. He has not known Mr Byrne and Mr Kemp to socialize outside of work. 26On 10 July 2010 he was rostered to work from the Hornsby maintenance Centre. At about 4.00pm he was on the platform when Mr Kemp pulled up and called him over to the driver's cabin. He said that Mr Kemp looked a bit shaken. Mr Kemp said to him: "I feel sick." Mr Atchison thought that Mr Kemp may have a cold. Mr Kemp then said: " Kevin followed me through the train and while I was trying to cut in Kevin started playing with my arse and had his hand down inside my pants." Mr Atchison asked Mr Kemp if he said "No" to Mr Byrne's advances and was told: " Not really I said "don't" but Kevin kept going." 27Mr Kemp then asked Mr Atchison what he would do if that happened to him and was advised that he would put him in. Mr Kemp then asked who he should contact and was told the OSM. Mr Atchison then had to leave to work his train. Mr Kemp was still upset and shaken. The conversation took about two minutes. Mr Atchison then contacted Mr Skennar who was the standby driver and asked him to meet Mr Kemp when he came back from the yard. He briefly told Mr Skennar what he had been told by Mr Kemp. He also provided Mr Skennar with the phone number of Jim Davey so he could give it to Mr Kemp. 28Mr Michael Begley is a train driver with the respondent since commencing in 1996 and is currently based at Hornsby Maintenance Centre. He stated that he did not know the appellant on a personal level only as a guard. He has worked with him on several occasions. He has known Mr Kemp for about six years through working at Hornsby. He stated that Mr Kemp had told him of an incident he had had with the appellant either on the day it occurred or the previous day. He then told Mr Kemp of an incident that occurred that day where the appellant with the use of a key had entered his driver's cabin, where Mr Begley was waiting for the signal to proceed. When the appellant saw Mr Begley he appeared to look shocked and stammer for words. He finally asked a question about stopping patterns and Mr Begley responded. Mr Begley said that it was unusual for guards to enter the drivers cabin unless there was a real need to and what the appellant did was out of the ordinary. He did not consider the appellant wanting to know the stopping pattern as being a need to come into the cabin as the usual practice is the guard would call the driver on the intercom. 29The appellant filed a statement and was subject to cross examination. 30Mr Byrne stated that he had been employed by the respondent for 35 years at the point of termination. During that time he had been a train driver but became a train guard in March 2010. He stated that he completed two massage courses one in the late 1990's and the other in 2004. 31On 10 July 2010 he stated that he was rostered as a train guard on a shift from 3:57pm to 11:55pm signing on at Hornsby station. Just after 4:00pm he saw Mr Kemp standing on the platform wearing his uniform and tall lace up boots. He reminded the appellant from a character from a war movie he had seen recently on TV. He said to Mr Kemp: "You look like a German police officer. Heil Hitler !" At the same time he gave him an extended arm salute. He then departed the scene. He stated that he did not mean to cause offence, but a spur of the moment action done in jest. He stated that he did not touch Mr Kemp on the back of his shirt nor trace the letters "SS". 32On the same day at approximately 5:18pm he stated that he was sitting in the guards compartment located at the Chatswood turn back siding when Mr Kemp walked through the guard's compartment and exchanged greetings. He said to Mr Kemp that they had about twenty minutes before they had to leave the turn back so he would join Mr Kemp in the driver's cabin. He said that such a thing did sometimes happen. Mr Kemp did not object to this comment. 33They arrived at the driver's cabin and Mr Kemp commenced to cut in the controls with the appellant standing outside. The appellant said that he then offered to massage Mr Kemp's shoulders and moved into the driver's cabin and stood immediately behind the seated Mr Kemp and proceeded to massage Mr Kemp's shoulders and neck. No objection was raised by Mr Kemp. As no objection was raised he continued the massage. He then said to Mr Kemp: "Don't tell anyone, will you ?" The appellant said this as he did not want anyone to know as he did not wish to expose himself to ridicule in the lunchroom, nor for others to get the wrong impression. 34He then asked Mr Kemp: "Are you gay or bisexual ?" Mr Kemp replied: "I'm certainly not straight." The appellant then said: " If a man saw another man on the street, he would know if he was good looking. I am very healthy for my age, including sexually." Mr Kemp replied: "Oh?" The appellant then said: " I can still cum twice a day, even at my age." Mr Kemp replied: " I know a Thai man who can cum five times a day. I have seen him do it." The appellant said he was a bit shocked by the response and was going to stop the massage but did not as he thought Mr Kemp may be offended. As well as massaging his shoulders and back he offered to massage Mr Kemp's back. He stated that Mr Kemp leant forward and the back massage commenced and also his arms. He stated that at no stage did Mr Kemp say "Don't". 35The appellant denies that he said "It's OK, people should love and respect each other." The first massage took four to five minutes. 36Then Mr Kemp's mobile phone rang and the appellant left the cabin. When the phone call finished the appellant returned and as Mr Kemp leant forward he continued the massage of his back and then his arms. The appellant then said: "Women say that I am good with my tongue and men say I am good with my hands." He denied saying: "..and men say I am great with my mouth." The second massage lasted about another four to five minutes. 37He denied that he placed his hand below or near Mr Kemp's beltline. He only massaged to around two thirds of the way down his back. He denied twirling Mr Kemps hair with his fingers. The light changed and Mr Kemp then straightened up and sat back into his chair. The appellant said: "I'll see you later." 38At the end of the trip Mr Kemp walked down the train through the guards compartment and each said a brief goodbye. The appellant stated that at no time did Mr Kemp ask the appellant to leave the driver's cabin. The appellant denied sexual harassment of Mr Kemp and believed that because he participated in the sexualised conversation then he was not offended by it. 39In his written statement the appellant denied ever approaching Mr Atchison as he is not gay. He acknowledged that he may have gone into the driver's cabin. He may know Paul Skennar, Peter Rowley and Michael Begley, but not by name. The appellant denied that he entered the driver's cabin when Mr Begley was there. 40The appellant denied that Mr Kemp said: " No, I have to cut in and kick this old girl in the guts." He does not remember saying: " Oh, its hot in here. I don't like the heat." He also denied that Mr Kemp commenced to complete his memo book and place it on the dash board and he also denied that he turned off the both the guards and drivers compartment lights. He denied he twirled Mr Kemps hair or ask about what it was. He did not see whether Mr Kemp was sweating profusely. 41The appellant stated that the driver's chair is adjustable and nothing was preventing Mr Kemp from leaving the cabin if he so wished. The back of the chair is adjustable forward or back. Mr Kemp moved forward and placed his palms on his knees to enable the massage to take place. 42He denies saying: "All men would have bisexual tendencies." and walking behind his mother and my daddy saying to him: "Look at mummy's beautiful legs." 43He also denies kissing Mr Kemp on the right check. He was unaware of this allegation until he received the respondent's written case. This allegation was not put to him during the investigation. 44In cross examination he stated that he did not trace anything on Mr Kemp's back. He also stated that he may have asked Mr Kemp to stay and talk in the guard's compartment on the afternoon of 10 July 2010. He advised that he did not touch the light in the drivers cabin and that it was on all the time. His giving Mr Kemp a massage was a spur of the moment, it was not planned. He asked Mr Kemp not to tell anyone about the giving of the massage because he did not wish to be ridiculed in the meal rooms. He had a nickname that he did not like and by giving a massage people might start spreading rumours regarding himself. He stated that he told Mr Kemp that he had done a massage course and that he'll massage his shoulders. He said that Mr Kemp nodded. This was the first time that the comment of Mr Kemp nodding had been raised by the appellant. It had not been raised before because he did not think it was important. He stated that he did not touch Mr Kemp's rat's tail. 45In response to a question from the Board as to why he had asked Mr Kemp whether he was gay or bisexual he replied that : There was strong rumours amongst train crew that he was gay and I was just inquisitive -merely wanted to know. 46He denied that Mr Kemp said "Don't" when he was massaging him and he denied that he placed his hand down the back of Mr Kemp's belt line. He understood the Code of Conduct and he accepted that he initiated the conversation and the massage. He stated that he moved behind the driver's chair, without Mr Kemp moving it forward, a few seconds after the massage had commenced. He stated that when the train did move forward Mr Kemp did not adjust the seat. In other words the seat was in the correct seating position for Mr Kemp. 47The appellant stated that he had no previous altercation with Mr Kemp and he had no idea why he would want to embellish or fabricate details of the incident. He also denied that he had ever approached Mr Atkinson at a beat at Rhodes. Considerations and decision. 48The appellant has admitted that he gave a heil Hitler salute on 10 July 2010 to Mr Kemp. He denied that he traced "SS" or anything on the back of Mr Kemp. 49The appellant has admitted that he gave Mr Kemp a massage of his shoulders and arms on the afternoon of 10 July 2010 whilst in the driver's cabin. In his view it was consensual. He denied that he heard Mr Kemp say the word "don't ". He denied that he placed his hand down past the belt line of Mr Kemps pants and he denied that he kissed him on the right cheek. 50Mr Darams for the appellant quoted from Bringinshaw v Bringingshaw that in circumstances where the appellant at the age of 58 after 35 years of service( with no previous disciplinary issues on record) has been terminated, issues had to be proven to the satisfaction of the tribunal. "In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 51With respect to the first incident there was no corroborative evidence from Mr Rowley. He could not recall what was said between the appellant and Mr Kemp nor did he see the appellant trace anything on Mr Kemp's back as he did not have a clear view. He saw a movement by the appellant's arm towards Mr Kemp and a look of shock and amazement on Mr Kemp's face. Mr Kemp stated that the appellant walked behind him and with his finger scribed 'SS' on his back. mentioning the letters 'SS'. 52I do not believe that the CCTV that was shown during the proceedings was of any assistance. 53Based on the balance of probability it is my finding that the appellant did mention the letters 'SS' and did trace it on Mr Kemp's back causing Mr Kemp's facial reaction to be seen by Mr Rowley. 54The second allegation occurred in the driver's cabin between Mr Kemp and the appellant without any other person present. As it was expressed by a couple of people during the hearing, it's one person's word against another. Both the appellant and Mr Kemp recounted their view of what had occurred with conviction. The conversation that the appellant commenced inquiring about Mr Kemp's sexuality was as a consequence of the appellant hearing a rumour and as he said, he was just inquisitive. The appellant could give no further reason as to why he would ask such a question to a fellow worker. 55The appellant made comment about his own sexual health and Mr Kemp made a reply concerning a Thai man. The respondent's investigator Mr Crimmins did not pursue the sexual harassment allegation because of this response. Mr Darams in his final submissions made comment about this response from Mr Kemp, firstly about his failure at first instant to report that he did say it thereby hiding it from the respondent's knowledge and secondly it showed he was comfortable with the conversation. Mr Kemp stated that at first instant when he reported the incident he was still stressed. 56The consent for the appellant to carry out the massage was argued. The appellant stated that by his actions Mr Kemp consented to it. Mr Kemp stated that he said to the appellant "don't". The appellant stated that he got 'the nod" from Mr Kemp. This utterance whilst giving evidence was the first time that this had been mentioned. This was stated after Mr Kemp had given evidence and he was therefore not questioned about it. I reject this evidence from the appellant. 57The appellant stated that he commenced the massage because it came into his mind on a spur of the moment. Very shortly after commencing the massage the appellant stated that he moved behind the driver's chair. Mr Kemp stated that the appellant did not move behind the chair but stayed near the doorway. The appellant also stated that when the train moved off, Mr Kemp did not adjust his driver's chair. Photograph evidence in my view showed it would have been most difficult for an adult male to be able to stand behind the driver's chair in the position that Mr Kemp drove the train at. A submission was made by Mr Darams that the photographs that were part of the filed case of the respondent should not be allowed to be treated as evidence because the appellant had sought to have the opportunity to take photographs but was denied. This request was made on 2 February, the day before the appellant's evidence had to be filed and served. Mr Crimmins gave evidence that he did receive a request by the appellant to have access for photographs to be taken. He sought to make immediate contact with either of the two most appropriate persons to organise the shots to be taken but neither were available that day. He did not know what happened after that. The following week he was in Grafton for work. 58I ruled that the respondent's photos be allowed to become evidence. I saw no reason why the respondent's photos should be ruled out just because the appellant did not organise themselves in time to have their photos taken. No application was made by the appellant for an extension of time for the taking and filing of photos. 59Mr Kemp gave evidence that other than saying "don't" to the appellant he did not do or say anything more. He stated that he froze. He figuratively stated that he wanted to get out through the front window. 60Two other witnesses supported Mr Kemp in that he at first instant told Mr Atchison in a brief conversation on 10 July 2010 at Hornsby station. I have noted that Mr Atchison believed that this conversation took place about 4.00pm. I do not accept this time and believe that the time would have been after 6.00pm. I do not think this error was fatal to the rest of this witnesses evidence . What was expressed by Mr Atchison was that Mr Kemp had told him that he felt sick , that Kevin had followed him through the train, and while he was trying to cut in Kevin started playing with his arse and had his hand down inside his pants. Mr Atchison asked Mr Kemp if he had said "no" to Kevin's advances and Mr Kemp had said that he said "don't". Mr Atchison then phoned Mr Skennar as he had concerns about Mr Kemp and he knew that Mr Skennar was the stand by driver that day. 61Later that night Mr Kemp spoke with Mr Skennar and again advised him what had happened and what he should do. Mr Skennar's account as to what he was told included the sexual conversation, the cabin light off, the massaging, the hand down the back of his pants and that he couldn't move and didn't know how to react. Mr Skennar also noted that during the conversation that Mr Kemp was shaking and had sweat marks under his arms. 62No evidence or submission was made as to collusion between Mr Kemp , Mr Atchison and or Mr Skennar. There was admittance by Mr Kemp and the appellant that there had never been any animosity previously between them. In consideration of this matter I have had to consider what motive, if any, was there for Mr Kemp to fabricate this incident. Mr Kemp would have had to fabricate and or embellish this story, tell Mr Atchison then Mr Skennar and then make it official by contacting the appropriate section of the respondent. He would have then fabricated the time line document(an annexure to his statement), as requested by Mr Davy, that he typed up that same night when at home. 63I do not believe he fabricated or embellished this incident. It is my finding that Mr Kemp was genuinely upset by what had occurred that day and at first instant sought to speak to someone, seeking guidance as to how to report it. 64It is my finding, based on the balance of probability, that Mr Kemp did find himself in a confined space when the appellant commenced a massage on him, where Mr Kemp did say "don't" , where the appellant's hand did go down under Mr Kemp's beltline and that the appellant did kiss him on the right cheek. 65In final submissions Ms Baxter for the respondent brought to the Board's attention several cases where a person was subjected to unwanted physical touching and that at the time they froze or did not immediately react( see Farrugia v RailCorp TD/72 of 2009, R v Porteus [2003] NSWCCA 18,Police v Adel Benjamin Abraham [2011] nSWLC6) . I accept the evidence of Mr Kemp that he froze and was in a confined situation which he did not know what was going to happen next. 66The appellant acknowledged that he was aware of the Code of Conduct that sets the standard within the respondent's workforce. This Code of Conduct outlines Acceptable behaviour and responsibilities which states in part: It is essential that we understand all the requirements of the Code, its supporting policies and procedures, delegations and instructions. This is because we are responsible for our actions and behaviour, including any failures to take action. You may be asked why you have chosen a particular course of action. If so, you may also be required to demonstrate that a decision you have made is reasonable in the circumstances and is fair and equitable. In goes on to state under the heading of A discrimination , harassment and bully-free workplace in part: You must not discriminate , victimise , intimidate or harass any other employees, contractors, consultants or members of the public for any reason. Harassment is a form of discrimination. It is any unwanted, unwelcome or uninvited behaviour that makes a person feel humiliated, intimidated or offended. Harassment is not always intended. The Code of Conduct covers the responsibilities of employees, work related behaviour, defines harassment and sexual harassment. It states that harassment is against the law and is a breach of the Code of Conduct. 67In this matter I have taken into consideration the appellant's long length of service and his previous unblemished work history. I have also reflected at length as to what took place on 10 July 2010 especially the incidents in the train driver's cabin. The actions of the appellant in the driver's cabin were completely unacceptable and inappropriate in a work environment, and Mr Kemp had ever right to report this matter to the appropriate authorities within the respondent's work place. 68Taking into consideration my findings and the seriousness of the appellant's actions against Mr Kemp, the Board is satisfied that the respondent was fully entitled to dismiss the appellant and the Board does not intervene or vary that decision. 69I Order that the appeal is disallowed. 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: 15 March 2012