Transport Appeal Boards New South Wales Medium Neutral Citation: Brar v RailCorp [2012] NSWTAB 7 Hearing dates: 31 January and 1 February 2012 Decision date: 22 March 2012 Before: Bishop C (Board) Decision: Appeal Disallowed Catchwords: PUBLIC SERVICE - discipline - rail employee - breaches of Code of Conduct - off duty employee - out of hours conduct -unacceptable behaviour - offensive language towards Police and Transit Officers on railway station - improper use of sick - dismissed by employer - appeal to Transport Appeal Board - breaches sustained - necessary link with employment established - penalty appropriate in the seriousness of the circumstances - appeal disallowed. Legislation Cited: Crimes Sentencing Procedure Act 1999 Summary Offences Act 1988 Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Borg v RailCorp [2011] NSWTAB 24 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. Brown v Dunn (1983) 6 R 67 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Gossner v RailCorp [2011] NSWTAB 11 Nicolaides v Director General, NSW Department of Health [2011] NSWIRComm 1002 Rose v Telstra Corporation Limited Q9292 [1998] AIRC 1592 (4 December 1998) Silling v Corrective Services NSW [2011] NSWIRComm 1065 Streeter v Telstra Corporation Limited [2007] AIRC 679 Walters v RailCorp [2012] NSWTAB 3 Category: Principal judgment Parties: Jasdeep Brar (Appellant) Rail Corporation of NSW (Respondent) File Number(s): TAB 1260 of 2011 DECISION Introduction 1Mr Brar commenced employment with RailCorp (and/or its predecessors) on 15 June 2004 on a Driver Traineeship. He was subsequently confirmed as a Driver and held that position at Campbelltown at the time of his dismissal (Exhibit 1-D). 2By letter dated 31 August 2011, RailCorp notified Mr Brar that he was dismissed, effective 31 August 2011, for the following breaches of the RailCorp Code of Conduct : Allegation One It is alleged that on Friday 31 December 2010, Mr Brar breached the RailCorp Code of Conduct by engaging in unacceptable behaviour. The particulars of the alleged breach are: a)About 11.20pm on Friday 31 December 2010 at Central Railway Station, when spoken to by Police, Mr Brar identified himself as a RailCorp Train Driver. b)When speaking to Police, Mr Brar used offensive language and acted aggressively towards Police. Those actions were not in the best interest of RailCorp. c)Mr Brar maintained his aggressive and offensive conduct towards Police after being detained at the Sydney Police Station. Those actions were not in the best interest of RailCorp. Allegation Two It is alleged that on 30 December 2010, Mr Brar provided false and/or misleading information to RailCorp when he notified he was sick and would not be working his rostered shift on 31 December 2010. The particulars of the alleged breach are: a)You reported off on sick leave on 30 December 2010. b)You were not in fact sick. Allegation Three It is alleged that on 27 January 2011 Mr Brar provided false and/or misleading information to RailCorp when he submitted an application for sick leave for 31 December 2010. The particulars of the alleged breach are: a)You signed an application for sick leave on 31 December 2010. b)You listed the nature of illness as "sick". c)You were not in fact sick. 3On 16 September 2011, Mr Brar filed an appeal against his dismissal indicating a 'not guilty' plea to the allegations made by RailCorp. 4The matter was listed for disciplinary conciliation before Commissioner Ritchie on 11 October 2011 at which time conciliation took place. As no settlement could be reached between the parties, 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 31 January and 1 February 2012. 5The evidence of the parties was heard on the two hearing dates as listed. At the conclusion of the hearing the Board issued further directions as to the filing and exchange of written closing submissions. Background and Chronology 6On Thursday 30 December 2010, Mr Brar attended training during his shift from 8am to 4pm (Exhibit 1-E23). At 3:15pm that day he telephoned Rosters to notify them that he would not be working his following rostered shift from 8pm on Friday 31 December 2010, to 4am on Saturday 1 January 2011, due to a 'medical condition.' He attended for his next rostered shift on Saturday 1 January 2011 from 8 pm to 4 am. (Exhibit 1-E21 & E23). 7At approximately 10:00pm on 31 December 2010, Mr Brar was at the north end of Platform 16 at Central Station with a group of friends. CCTV footage shows that he moved away from the group and walked in the direction of approaching Police and RailCorp Transit officers. As he did so a male friend of Mr Brar followed him and jumped on his back in a 'bear-hug like motion' and pushed him back towards the group. On seeing this, a Police Officer moved to pull this person off Mr Brar's back. The Police and Transit Officers then commenced speaking to Mr Brar to ascertain what had occurred (Exhibit 1- E14 camera C338). 8The NSW Police Facts Sheet reported (Exhibit 1-E19) that Mr Brar was, "immediately uncooperative and aggressive towards police. His eyes were red and blood shot, his speech was slurred and was unable to put together a coherent sentence, constantly using the word "fuck" and calling all Police and Transit Officers around him "cunts". When requested to produce identification the accused [Mr Brar] pulled out a Rail Corp rail pass and said "I'm a fucking Rail Corp train driver, you cunts leave me alone, i can do what i want" (sic). 9In her statement, RailCorp Acting Operations Inspector Magda Edmonds reported as to an earlier interaction with Mr Brar's friend. A short time later when she noticed Mr Brar approaching the Police and Transit Officers she reported him as "yelling out something" and although she was not sure what he said, "he was very loud, had his chest puffed out and was determined to say something to Police". Ms Edmonds then observed Mr Brar pull out what she subsequently realised was a RailCorp employee pass, wave it at a Police Officer and say, "I'm a fucking driver you cunts. You can't do shit." The remainder of Ms Edmonds' statement sets out continued abusive language by Mr Brar. She also heard the female Police Officer say, "You just spat at me" and observed that Mr Brar was "frothing at the mouth and saliva on the Police officer's shirt" (Exhibit 1-E15). 10RailCorp Senior Transit Officer Rosanne Holmes also witnessed an earlier interaction with Mr Brar his friend and others. She and the Police watched for a few moments to see what was happening before approaching Mr Brar to have a chat with him. He pulled out a blue RailCorp Employee Travel Pass from his pocket, held it out and said, "I'm a fucking train driver" and when asked to cut the language he said, "I'm a fucking train driver you cunts. See here's my ticket cunts." (Exhibit 1-E16). 11At the end of the verbal exchange between Mr Brar and the female Police Officer, two other Police officers took hold of Mr Brar, walked him down the stairs to the Concourse area and sat him down to speak to him to try and calm him down before taking him to City Central Police Station. 12The incident was reported to RailCorp Team Leader Mark Griffin, who requested that Stephen Pearce, Depot Manager, go with him to see what was happening. They have both stated that they saw Mr Brar being taken away from the station concourse by Police. They heard him yelling words to the effect of, "I've told you my name. I'm a RailCorp train driver. I have done nothing wrong" and "You can't do this to me, I'm a fucking driver" (Exhibit 1-E17 & E18). 13Mr Griffin and Mr Pearce subsequently attended City Central Police Station where Mr Pearce witnessed Mr Brar "mouthing off to Police" and heard him say, "I am a fucking driver, you can't do this to me" and "Come on, I'll take you on" to a Police officer (Exhibit 1-E18). Both Mr Griffin and Mr Pearce formed the opinion that Mr Brar was under the influence of some type of substance. The Police subsequently contacted Mr Brar's father and released him when his father came to collect him. 14The incident was referred to RailCorp's Investigations Unit (RIU) for investigation. 15On 27 January 2011, Mr Brar completed an Application for Leave form stating that he was sick for his shift on 31 December 2010 (Exhibit 1-E22). 16Mr Allan Pollard, an Investigator with the Investigations Unit undertook the disciplinary investigation into the incident of 31 December 2010 involving Mr Brar. 17Mr Pollard obtained the CCTV footage of the incident on the platform and sought witness statements from Acting Operations Inspector Magda Edmonds (Exhibit 1-E15), Senior Transit Officer Rosanne Holmes (Exhibit 1-E16), Team Leader Mark Griffin (Exhibit 1-E17) and Depot Manager Stephen Pearce (Exhibit 1-E18). 18On 10 February 2011, Mr Pollard sent an letter to Mr Brar detailing the allegations against him and requesting that he respond to the allegation that he had breached the Code in respect of Allegation One (as set out above), together with were copies of the Code and the RailCorp Discipline Policy (Exhibit 1-E2). 19Mr Brar provided a written response to this allegation by letter from Jordan Djunja Lawyers dated 3 March 2011, which relevantly detailed the following: (Exhibit 1-E6): The allegations do not arise out of Mr Brar's employment as he was not at work at the time. He was a member of the public using RailCorp facilities. The CCTV footage shows Mr Brar speaking to police in a calm manner and showing some identification, then becoming agitated. Mr Brar was trying to explain to police that he was a RailCorp employee off-duty and did nothing wrong so they should let him go. Mr Brar concedes that he may have started swearing through frustration but does not remember what he said. Mr Brar was not under the influence of any drugs or alcohol at the time. 20On 11 March 2011, Mr Pollard sent a further letter to Mr Brar inviting him to attend a voluntary disciplinary interview on 11 April 2011 (Exhibit 1-E7) An Electronic Record of Interview was made, (Exhibit 1-E9). 21During the Disciplinary Interview Mr Brar relevantly stated the following: He felt insulted at being arrested at Central Station which is his point of work and with colleagues watching by (p.15); He did not do anything wrong to be arrested by Police but afterwards he did swear as a result of the way he was treated (pp.17); He pleaded guilty to the charge by Police (p.19); He walked away from the group to see who was working in the OSM's office. He denied that he was walking towards the Police to engage them in some way (pp. 26-27); At the time of the incident he was on his way to an event at Luna Park. He bought the ticket for the event in late October (p.41); He had consumed alcohol during the day on 31 December 2010. He had a beer or two with lunch at about 12 to 1 pm (pp.41 & 42); He denied drinking shots of Absinthe (p.43); The reason that he gave to Rosters on 30 December 2010 was "Just that I couldn't make it that day, I had other plans." (p.63); He had organised with his Intercity Roster Clerk to have New Year's Eve off work. He was 'reviewing roads' until he took up duty as a driver on 20 or 24 December 2010 and found that he was on the roster to work for 31 December 2010. He said that he was working and tried to organise a swap but wasn't able to, so he resorted to going off sick. (pp.64 & 65); He took a casual sick day. (p.66); He had no annual leave accrued at the time. (p.67); He "was honest... I don't know how I've been dishonest. I can't see how I've been dishonest." (p.68); and He said to the Roster Clerk, "What can I do? What are my options?" and he said, "You can go sick, that's about it." (p.69). 22On 18 April 2011, Mr Pollard sent a second letter detailing further allegations to Mr Brar (Allegations Two and Three above) and requested a response within 14 days. Mr Brar did not respond and Mr Pollard wrote him on 11 May 2011 advising that he had not received a response and that the investigation would continue in the absence of his response (Exhibit 1-E11 & E 12). 23Mr Pollard considered all of the available evidence and found all three Allegations, and the particulars of each Allegation, to be substantiated. The Investigation Report was forwarded to RailCorp's Disciplinary Review Panel (DRP) for consideration (Exhibit 1-E). 24On 27 June 2011, the DRP considered the Allegations against Mr Brar and the Investigation Report finding and made a preliminary recommendation that he be dismissed. He was advised of this preliminary view by letter acknowledged on 8 August 2011 and afforded the opportunity to make submissions regarding the proposed outcome within fourteen days (Exhibit1-F). 25Mr Brar provided a response to the preliminary view by letter received 18 August 2011 in which he relevantly stated as follows (Exhibit 1-G): He admitted to the offence of using offensive language to NSW Police and appeared in court. He was issued with a 'section 10' and received no criminal conviction. He believed that it was a 'false arrest' by Police. He had plans for New Years Eve. He believed he would be "reviewing roads" for a six week period required and would not be required to work on New Years Eve. On 23 December he was advised that he was rostered to work, he sought advice from the Acting Depot Manager to seek leave for that day. He advised him to seek a shift change, which he tried without success. He sought further advice and was told the only way he would get that day off was to "take a Casual". When notifying RailCorp of his inability to attend duty on 31 December 2010 it was his intention to utilise a "Casual Absence". He had received advice that the way to notify a Casual Absence was by "going sick". 26On receipt of Mr Brar's response, Mr Pollard obtained a witness statement from Senior Operations Manager Paul Briggs dated 23 August 2011, which he provided to the DRP under cover of emails dated 19 and 25 August 2011 (Exhibit 1-H & I). 27The DRP considered Mr Brar's response, Mr Pollard's emails and statement of Paul Briggs on 29 August 2011 and confirmed its preliminary recommendation to dismiss Mr Brar, subsequently notifying him of such dismissal letter dated 30 August 2011 which was acknowledged by him that same day. (Exhibit 1- J & K). 28The following documents were also tendered as part of RailCorp's Written Case: RailCorp's Code of Conduct - version 1.5 (Exhibit 1-L), Relevant sections of RailCorp's Leave Procedure and RailCorp Enterprise Agreement 2010 (Exhibit 1-M), Annual Employee Declaration form including 'Conditions of Use of Employee Pass' as signed by Mr Brar on 25 June 2010 (Exhibit 1-N). A digital copy of relevant CCTV footage from Central Railway Station dated 31 December 2010 (Exhibit 1-E14). Issue(s) 29Mr Brar has pleaded not guilty to the Allegations made by RailCorp, and challenges the findings made and the decision to dismiss him from his position. He seeks reinstatement to his position of Train Driver. Respondent's Case 30RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. Ms Baxter, on behalf of RailCorp, also filed further written submissions in closing as per the directions issued by the Board at the conclusion of the evidence on the 1 February 2012. 31In its initial written submission (Exhibit 1) RailCorp detailed the relevant provisions of the RailCorp Code of Conduct for consideration of the Board, which were as follows: 2. Acceptable behaviour and responsibilities ......... RailCorp employees, contractors and consultants 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 interest of RailCorp. Maintain and promote high levels of acceptable behaviour. Help to build and maintain a 'Just Culture' where employees are treated fairly and justly. As an employee, contractor or consultant of RailCorp you are responsible for the way you behave and your actions. All your decisions must be ethical and comply with legislation, enterprise/collective agreements, 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 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; Present yourself in a businesslike and professional manner ie neat, tody and clean and wearing correct uniforms...; Not knowingly make a false statement; Carry out all lawful directions from managers/supervisors to the best of your ability." 32It was submitted that Mr Brar attended RailCorp Code of Conduct briefings on 14 April 2006 and 8 April 2010 and therefore knew, or ought to have known, of his responsibilities under the Code (Exhibit 1-D). His behaviour as set out in the Allegations above, was in breach of the Code in so far as he: Failed to comply with the behaviours outlined in the Code; Failed to act in the best interest of RailCorp; Failed to maintain and promote high levels of acceptable behaviour; Failed to be ethical and comply with legislation, awards, policies, procedures, rules and job requirements; Failed to carry out his duties carefully, honestly, courteously and fairly; Failed to use RailCorp resources properly and efficiently; Failed to treat a colleague fairly, consistently and with respect; Failed to create accurate records of work performed; Knowingly made a false statement; and Failed to carry out lawful directions from managers/supervisors. 33RailCorp submitted that Mr Brar had pleaded not guilty to each of the three Allegations and RailCorp's position in response could be summarised as follows: Allegation One The witness evidence of Mr Brar's behaviour during the incident on the platform was clear and consistent. Acting Operations Inspector Magda Edmonds stated that she witnessed him use abusive language towards Police and Senior Transit Officer Rosanne Holmes stated that she saw him use abusive language and aggressive behaviour towards Police. The CCTV footage of the incident on the platform showed him arguing with a Police Officer and on occasions he appears to advance towards the Police Officer in an aggressive manner. After Mr Brar was arrested and escorted to the Police station, his unacceptable behaviour continued, as evidenced by the statements of Team Leader Mark Griffin and Depot Manager Stephen Pearce. The evidence of Ms Edmonds, Ms Holmes, Mr Griffin and Mr Pearce confirmed that Mr Brar acted in an aggressive manner. Mr Brar's misconduct was proven and amounted to serious misconduct in breach of the Code, bringing RailCorp into disrepute before the public on a busy platform on one of the busiest times of the year. His behaviour was sufficiently serious for the Police to charge him with "Wilfully use offensive language on train in or public area", for which he pleaded guilty at the court hearing and avoided a criminal conviction via s.10(1)(a) of the Crimes Sentencing Procedure Act 1999. He had admitted to swearing at the Police to RailCorp but his solicitor submitted that the misconduct did not arise out of his employment because he was not at work at the time and was a member of the public using RailCorp facilities. There was sufficient nexus between his conduct and his employment at RailCorp for the following reasons: He identified himself as a RailCorp Train Driver loudly and in an unacceptable manner (e.g. "I'm a fucking driver you cunts") on a busy platform at Central Station, thus bringing RailCorp into disrepute; He had called in sick for the shift that he was supposed to be performing at the very time of his misconduct on the platform; and He presented a RailCorp Travel Pass as identification to the Police. Proper use of an employee travel pass requires an employee to, "be courteous to fellow passengers at all times... thereby projecting a professional image of themselves and RailCorp". Allegations Two and Three Mr Brar stated that he had a prior arrangement with his Roster Clerk to have 31 December 2010 off work and that he had booked a ticket to go to an event on New Years Eve as early as October 2010. He ought to have followed RailCorp's standard procedures and made written application for annual leave for 31 December 2010 well in advance.There was no evidence that he did so and it was noted that he informed Mr Pollard during his disciplinary investigation that he had no annual leave accrued. He suggested that a Roster Clerk (not identified by name) or Senior Operations Standards Manager Paul Briggs told him to "take a casual" sick day on 31 December 2011 when he was unable to find anyone to swap the shift. Mr Briggs denied this and evidence obtained by Mr Pollard was that none of the Rostering Officers at Campbelltown would provide such advice to employees. To give such advice would be unreasonable and risk the integrity of any Rostering Officers position at RailCorp. The "casual" sick day referred to by Mr Brar is the allowance that RailCorp employees are entitled to a maximum of 6 days of their total leave entitlements in any one year as uncertified absences (without medical certificates). It was clear from the wording of the RailCorp Leave Procedure and clause 31.4 of the RailCorp Enterprise Agreement 2010 that the intention of the 6 uncertified sick leave days granted to employees is that they are to be used for genuine illness and not in the manner used by Mr Brar. He stated during his disciplinary interview that he was honest in taking a casual sick when he was not in fact sick. His statement, "I can't see how I've been dishonest" demonstrated his unwillingness to accept responsibility for his misconduct. 34RailCorp rejected the submission made on behalf of Mr Brar by the RTBU concerning the absence of a nexus between his actions and his employment on the basis that he produced his Rail Pass because he was directed to show his ticket by the Police. Ms Baxter pointed to the fact that this submission ignored the evidence of the four RailCorp witnesses that he was shouting words to the effect of "I'm a fucking driver you cunts". It also contradicted the RTBU's own advice to members in the September 2011 edition of 'Rail & Road' that employee behaviour after hours may be subject to disciplinary proceedings (Exhibit 2), including: When an employee identifies themselves as an employee of the company in public forums...and Behaviour which could damage the employer's business or public reputation. 35It was submitted that by shouting words to the effect of "I'm a fucking driver you cunts" on a busy platform, Mr Brar had identified himself as an employee in a public forum in such a way that would damage RailCorp's public reputation and was therefore not in the best interests of RailCorp. 36Ms Baxter rejected the suggestions made by Mr Brar in his statement that he called rosters and informed them he would not be attending work on 31 December as the rostered shift which was due to commence at 8 pm would cause his sleeping patterns to be out of order and that he would be fatigued. This was the first time he had suggested that fatigue was his reason for calling in sick. He had first claimed that the Roster Clerk told him he "could go sick". He later submitted he called in sick because he was unable to get out of working his rostered shift on New Year's Eve and believed he was able to take a "Casual Absence" after the Acting Depot Manager told him to "take a casual". Mr Brar had a 28 hour break between his training which ceased at 4 pm on 30 December 2010 and his rostered shift which was due to commence at 8 pm on 31 December 2010. In allocating Mr Brar to a shift on 31 December 2010 rostering practices were followed taking into account fatigue management. 37It was also submitted that Mr Barr's assertion that when he completed his Application for Leave form he was unsure what type of leave to claim and asked the approving manager if this was correct contradicted his earlier position that was the Acting Depot Manager (Mr Briggs) told him to "take a casual". Regardless of this there was no evidence to suggest that the approving manager was aware of the incident involving Mr Brar on 31 December 2010 or appreciated the significance of his question one month later. 38Mr Brar's account of the incident in question did not concur with the evidence, and in addition there were a number of inconsistencies in his own case, suggesting that he had not been truthful in his responses throughout the disciplinary process. RailCorp's evidence should be preferred in this regard. 39It was submitted that overall Mr Brar's submissions provided insufficient justification to mitigate the serious nature of his misconduct and RailCorp's decision to dismiss Mr Brar was an appropriate response to the nature of his misconduct. By his actions, he behaved in an unacceptable manner in front of the general public in such a way as to bring RailCorp into disrepute. He was given many opportunities throughout the incident with the Police to calm down prior to, and after, his arrest but he continued with the abusive language throughout. 40It was also submitted that Mr Brar denied he was intoxicated or under the influence of some type of substance despite the evidence to the contrary. His behaviour was gravely unacceptable and contrary to the best interests of RailCorp. He was also dishonest by calling in sick when he was not sick, and in doing so demonstrated that he lacked the responsibility required of a RailCorp Train Driver. His attitude towards his misconduct also demonstrated a lack of regard for RailCorp's polices and procedures. 41In closing submissions, Ms Baxter submitted that Mr Brar had maintained his not guilty plea, and had continued to deny that he was in breach of the RailCorp Code of Conduct for unacceptable behaviour and providing false and misleading information regarding sick leave. In the face of overwhelming witness evidence to the contrary, his continued denial of Allegation One was unreasonable and should not be accepted. 42RailCorp summarised the relevant evidence, including the CCTV footage and submitted that it established that Mr Brar was the aggressor; there was no provocation towards him; the female Police Officer had a 'calm and conciliatory manner' and the incident escalated quickly, despite the Police Officer being tolerant and trying to calm him down a number of times. 43It was also submitted that in the unlikely event that a comment was made to offend him (as per his uncorroborated claim), that provided no excuse for the level of, and continued, offensive language and aggression he displayed towards the female Police who was trying to calm him down. The CCTV footage showed his aggressive movements with strong and continued verbalisation towards the female Police officer. 44Further evidence from the CCTV footage of the unacceptable nature of Mr Brar's could be inferred from his friends moving in such a way as to calm him down (exhibited by both the male friend and the dark-haired female). At no point were any of his friends seen to be intervening to speak to the Police as if to challenge them or back him up. 45The evidence of Ms Edmonds and Ms Holmes, (including Ms Holmes' contemporaneous notes) generally accorded with the NSW Police Facts Sheet with Ms Holmes expressing the view that she felt the Police gave Mr Brar significant leniency before escorting him off the platform. As a senior member of the RailCorp security function and Acting Operations Inspector she stated that had she been dealing with the incident, she would have removed him more quickly because it was 'bad public relations'. 46It was submitted that the evidence of Ms Edmonds and Ms Holmes should be considered as independent, credible and consistent. Neither of them knew Mr Brar nor had any reason to fabricate or exaggerate the incident that occurred on the platform. His self interest in downplaying the matter was evident. An inference could also be drawn from the fact that had provided no witness evidence to corroborate his version of events, despite a number of his friends being present on the platform at the time. 47The weight of evidence regarding Mr Brar's behaviour once detained by Police was that he maintained his aggressive behaviour and offensive conduct towards the Police. This was confirmed by the evidence of Mr Pearce, concerning both before Mr Brar was escorted from the concourse at Central station, and at the Police Station. Mr Griffin confirmed the behaviour at the Police Station was offensive etc. 48During the hearing, the RTBU made an issue of the reason/s why Mr Pearce and Mr Griffin attended the Police Station following the incident at Central Station. It was clear from the evidence of both that they attended because a message had been sent for Mr Griffin requesting that he attend. It was presumed, not unreasonably, by Mr Griffin that the request originated from the Police and/or Mr Brar himself. No evidence to the contrary had been provided and Mr Griffin's evidence was that Mr Brar was pleased to see him arrive at the Police Station. Mr Griffin had asked Mr Pearce to accompany him there, and both men gave evidence that they attended believing that they were required to (at least initially) and/or could be of some assistance to the Police and/or Mr Brar. 49Ms Baxter submitted that any criticism levelled at Mr Griffin and Mr Pearce for being outside the scope of their duties in attending the Police Station was irrelevant to the Allegations before the Board and unfair to the two men concerned. 50Ms Baxter further submitted that RailCorp managers were frequently criticised by the Unions and adjudicators for not doing enough to support employees. In this instance, both men had been criticised under cross-examination for doing just that. While their actions may not have been in strict compliance with their job descriptions, their evidence was that they were doing what they believed to be the right thing at the time. No evidence had been provided to suggest that they harmed Mr Brar's already dire situation in any way. Any suggestion by either Mr Brar or the RTBU that it was Mr Griffin's (or indeed, Mr Pearce's) "fault" that Mr Brar "got in trouble" or that their actions "cost him his job" was strongly rejected. 51It was submitted that both Mr Griffin and Mr Pearce were credible witnesses who reported the facts of what they saw without bias, and no evidence was brought to suggest that either manager had been involved in previous incidents with Mr Brar or held animosity towards him. Their evidence was consistent with the description of Mr Brar's earlier behaviour given by both the Transit Officers and the Police and should be accepted over Mr Brar's continued and uncorroborated denial of his actions. 52Ms Baxter submitted that while throughout the hearing an issue was made by Mr Brar and the RTBU as to whether the was intoxicated or under the influence during the incident, and while the weight of witness evidence was that he had behaved in a manner to suggest that he was intoxicated or under the influence of some kind of drug, RailCorp did not press this as an issue of relevance. 53Ms Baxter submitted that the facts concerning Allegations Two and Three were largely not in dispute and referred the Board to, and relied upon, the relevant evidence including that of Mr Briggs. In relation to Mr Brar's evidence that he purchased a ticket to a New Year's event at Luna Park sometime in October it was submitted that at that point, he ought to have submitted formal, written application for leave for New Years Eve 2010 and his claim that he was unable to do so because he did not know where he would be based was an insufficient excuse. It was open to him to approach Managers at both Central and Campbelltown to approve his leave and/or his training Manager (if he thought he would still be in training) at that early stage. However regardless of whether he relied on an informal agreement with his rostering officer to have New Years Eve off work (uncorroborated), as a long-standing Train Driver he ought to have known that shifts for busy periods such as Christmas and New Year's Eve were subject to change due to operational requirements. 54Ms Baxter made reference to the cross-examination of Mr Briggs concerning Mr Brar's driver qualifications and whether it was a driver's responsibility to manage their own fatigue and his response that he had reference to a report detailing on which roads Mr Brar had completed his refresher qualifications, and his confirmation that Mr Brar was able to perform a stand-by driver role as he was rostered to do on the evening of 31 December. Mr Briggs agreed in general terms that it was a driver's responsibility to manager their own fatigue but gave evidence that, having regard to the shifts and hours Mr Brar had worked in the days prior to 31 December, he would have been below the acceptable fatigue score which was calculated in accordance with RailCorp safety policies and procedures. 55Ms Baxter submitted that it was not put to Mr Briggs in cross-examination that Mr Brar had raised issues of fatigue and lack of qualifications with him prior to 30-31 December 2010. Mr Brar could not rely on his subsequent evidence that he raised both issues with Mr Briggs during their conversation in which he requested that his roster for 31 December 2010 be changed applying the rule in Brown v Dunn (1983) 6 R 67. Nor could he rely on his evidence (raised for the first time at hearing) that he was involved in a previous incident in which he claimed to have suffered from the effects of fatigue and/or sleep apnoea off the back of day-shifts. The Board should disregard Mr Brar's evidence in relation to these two issues on the grounds that it was unable to be tested by RailCorp and/or the Board. 56Ms Baxter further submitted that the Board should reject Mr Brar's claim (again raised for the first time at hearing) that he was in fact sick on 31 December 2010. The differing versions of what he had claimed were referred to and that at the hearing he changed his mind again and submitted, under oath, that he was sick on 31 December 2010, provided no medical evidence to support this claim and stated that he knew that his "mind was saying not to be at work" and so, as a Train Driver with obligations for safety, he decided to go off sick. When pressed, he admitted that he did not feel like going to work for that shift. 57Ms Baxter rejected the suggestion that a Train Driver should be given some greater pardon for calling in sick on days that they simply did not want to go to work, as being absurd. Submitting that many thousands of RailCorp employees were Rail Safety Workers with a high level of responsibility for safety and while sick leave was made available for employees who were legitimately unwell, RailCorp must be able to trust that its employees could be relied upon to perform their duties as required, particularly at peak times such as Christmas and New Years Eve. In addition to safety, Train Drivers were responsible for the provision of comfortable, accessible and reliable train services to customers. Mr Brar, by his actions in calling in sick for his shift on 31 December 2010 in circumstances where he simply did not want to go to work, had not only provided false and/or misleading information to RailCorp but also failed to fulfil his duties as a Train Driver. 58Further, he had also provided false and/or misleading information to RailCorp on 27 January 2011 when he completed an Application for Leave for 31 December 2010 stating that he was sick and to blame the approving manager for his false and/or misleading completion of his Application for Leave form was a continuation of his failure to accept responsibility for his actions and insufficient mitigation in the circumstances. 59On the issue of appropriate penalty Ms Baxter submitted that the evidence of Ms Edmonds and Mr Pollard was consistent with any reasonable view that Mr Brar's actions on 31 December 2010 were not in the best interests of RailCorp. The fact he was not on duty was negated by his offensive and repeated declarations to the Police, and in view of the public, that he was a RailCorp Train Driver. The attitude expressed by him on that night on a busy platform for all to hear - "I'm a fucking driver you cunts. You can't do shit" - was in keeping with the attitude he expressed at hearing that he simply did not want to go to work and as Train Driver he was excused from doing so. This was of concern to RailCorp. 60It was also submitted that in addition to the unacceptable behaviour for which he was dismissed, his continued denial of the allegations and his demeanour at the hearing demonstrated a clear failure to accept responsibility for his actions. The relationship of trust and confidence between RailCorp and Mr Brar in those circumstances must be considered irreparable. 61It was submitted that Mr Brar's actions brought RailCorp into disrepute. The evidence was that he was given ample opportunity to calm down but continued using offensive language and acting in an aggressive manner towards Police. Regardless of whatever frustrations he may have held at the time (or whether he was intoxicated/under the influence) his actions were of a manner and scale that went far beyond reasonable. 62Mr Brar's actions in calling in sick and completing an Application for Leave claiming that he was sick were dishonest and demonstrated a lack of respect for RailCorp's policies and procedures. His continued denial that he had done any wrong raised serious concerns as to his attitude and demonstrated that it was not in the public interest to reinstate him to the role of Train Driver at RailCorp. 63Ms Baxter submitted that in all the circumstances dismissal was the appropriate penalty for Mr Brar's misconduct, the evidence before the Board supported RailCorp's position and that the Board should not allow Mr Brar's appeal. Appellant's Case 64Mr Edghill, on behalf of the RTBU, also filed further written submissions in closing in addition to the written submissions as originally filed (Exhibit 3) and in doing so submitted that Mr Brar pleaded not guilty to the three Allegations raised against him. 65Mr Edgehill submitted that in addition to the necessity of the Board determining whether on the balance of probabilities each of the alleged breaches had been proven by RailCorp and if they were whether they were serious enough to warrant dismissal or if an alternative punishment was more appropriate in all the circumstances, the Board had an additional function. 66In relation to alleged breaches that occurred outside of Mr Brar's work hours, the Board had an additional test to apply, that being to decide if the alleged 'out of hours' breaches were serious enough to amount to a repudiation of the employment relationship by Mr Brar. This test created a 'higher bar' for RailCorp to get over in demonstrating that the alleged behaviour of Mr Brar warranted dismissal. 67It was submitted, in response to Allegation One, that Mr Brar accepted that he used offensive language towards the Police, for which he was charged and received no conviction against his name because of the minor nature of the offence. He denied that he acted aggressively towards Police and he was not charged with anything that resembled this by the Police. He also denied RailCorp's assertion that he maintained his aggressive behaviour towards Police when detained at the Police Station. There was no evidence of such conduct, and again, he was not charged with this conduct by the Police. 68The evidence of Ms Edmond was referred to and summarised and it was submitted that there were a number of problems with that evidence. She was very specific about the exact language and phrases she said that Mr Brar used, although she made no notes of the incident herself and contended that she didn't need to make notes as she viewed and agreed with the notes made by Ms Holmes. However, the phrases that Ms Edmonds alleges were used by Mr Brar were different to those alleged by Ms Holmes and different to those contained in Ms Holmes' contemporaneous notes. On the allegation of spitting, it was noted that no such allegation or charge was made by Police and Ms Edmonds admitted she did not see Mr Brar spitting at anybody. On this basis, any suggestion by Ms Edmonds that Mr Brar spat at the Officer must be disregarded. 69It was submitted that on the issue of signs of intoxication, Ms Edmonds' evidence was in direct opposition to what was stated by Police in their Facts Sheet. 70It was submitted that the behaviour and language that Ms Edmonds alleged Mr Brar demonstrated was an exaggerated version of the events and it was unlikely that Mr Brar, a responsible employee of RailCorp for seven years with no history of any such behaviour, would immediately swear or become aggressive when approached by Police, as alleged by Ms Edmonds, without what he believed was some form of provocation or extreme agitation. It was further submitted that the fact that she did not make notes of the incident, together with the inconsistencies between the accounts of the two Transit Officers and the Police account, lent weight to this submission. It was reasonable to conclude that Ms Edmonds did not appreciate Mr Brar's behaviour on that night and that it angered her (as evidenced by her manner during cross examination and her statement that she would have "had him in cuffs" much sooner, in direct contrast to the way Ms Holmes stated she believed the situation should have been handled). It is reasonable to conclude that while Mr Brar did swear (as he admitted throughout the discipline process), the course of events that lead to him swearing and the behaviour he displayed when he did swear was not exactly as Ms Edmonds described it. 71It was further submitted that the evidence showed that Ms Edmonds took, what could be described as, an unusually 'Gung Ho' approach to the incident and that this was a large part of the reason that this incident became an employment issue for Mr Brar. 72Ordinarily an off-duty employee swearing on a train station would not be considered relevant to their employment. Where this incident first became an employment issue was when Ms Edmonds decided to conduct her own investigation. She took Mr Brar's pass away from him to another part of Central Station to ask fellow employees if they had heard of him and if he was a Driver. This set in train a number of events that caused RailCorp to become involved in this matter. It was still unclear why Ms Edmonds felt it appropriate to carry out this mini-investigation. The Police did not have any trouble identifying Mr Brar, they had his pass and his licence. There was no reason to believe the pass was a fake or a forgery, the passes were very easily identifiable and taking the pass to the Train Crew Assignment Centre did not help to confirm the identity of the man detained by Police that night, it only confirmed that some other employees believed or knew that a man named Jasdeep Brar worked as a Driver at RailCorp. There was no reason to believe that the Police required Ms Holmes' assistance at all in relation to handling the incident with Mr Brar or with identifying him. It was submitted that the unusual and unnecessary enthusiasm with which Ms Edmonds approached this incident lent further weight to the RTBU's contention that her version of events was exaggerated to the detriment of Mr Brar. 73Mr Edgehill contrasted Ms Edmonds' approach with that of Ms Holmes who admitted in cross examination that on taking his pass and identification she was satisfied he was who he said he was and there was no need to conduct further checks. He also noted that while Ms Holmes' evidence was that on her observation Mr Brar appeared intoxicated and unsteady on his feet, she went on to agree in cross examination that she could not smell alcohol on his breath or recall him slurring his words and she got as close to him as half a metre. There was no mention of such intoxication in her contemporaneous notes and she agreed that this would have been relevant to note. This also was in direct contrast to the Police statement. 74It was submitted that both Ms Holmes and Ms Edmonds gave evidence that they believed Mr Brar had been part of a group of males that had been involved in a prior altercation at Central Station and that this was the reason that the two Transit Officers and Police approached the group of people that Mr Brar was with on Central Station. However while this prior alleged altercation did not form part of the charges issued to Mr Brar, and was not relevant to those charges, this contention did serve to work against Mr Brar in that it portrayed him, or the people he was with, in a negative light from the beginning. 75In response it was submitted that Mr Brar denied being part of any altercation taking place before the incident that was captured by the CCTV footage; the CCTV footage did not capture any such altercation but showed him with a group of people who appear to be settled in a single location on the station. Further given the amount of time that RailCorp's witnesses say passed between noticing the prior 'altercation' and the incident with Mr Brar captured on CCTV (in the case of Ms Edmonds, she said under cross examination that the amount of time between the two incidents was "30 seconds") there would not have been enough time for Mr Brar's group to have settled in the location they were in on Central Station had they been involved in the first 'incident'; under cross-examination neither Ms Edmonds nor Ms Holmes could confidently state that they identified Mr Brar as being part of the same group they noticed in the initial incident. Further, they both agreed that it was possible that the group involved in the first incident was not Mr Brar's group. 76It was submitted that on the above basis, it must be found that Mr Brar was not involved in the first 'incident' that drew the attention of Transit Officers and Police that night and that caused them to approach Mr Brar's group. This also supported Mr Brar's contention that he was wrongly accused during the interaction with Police of having been involved in a fight or altercation, and that he felt he was being harassed by the Police. 77This was also relevant in terms of the reliability of Ms Holmes' statement that Mr Brar was part of a group of males that was broken up by Police and that this was how Mr Brar came to the attention of the Police. This "breaking up" was not evidenced on CCTV footage and in cross examination, Ms Holmes stated that it occurred in a different location to the one shown on the footage viewed during the hearing. 78It was submitted that this account of how Mr Brar came into contact with the Police was not consistent, or credible, and did not accord with what was seen on the CCTV footage during the hearing. Ms Holmes stated Police broke up the group and a "dark skinned male and an Asian male were left there" and went on to say that Police watched for a few moments before one of the Constables approached the dark skinned male to have a chat with him and that was when the swearing started. The CCTV footage showed a single group of males and females, already settled (that is, not arriving at the location or walking past) and showed no signs that they were aware Police were watching or approaching them. It showed Mr Brar walking away from the group to the top of screen, then being grabbed in the back by an Asian male, then being spoken to by police. It was submitted that what was shown on the CCTV footage supported Mr Brar's contention that he first became aware of the Police when they approached him after being grabbed from behind by his friend and that Mr Brar was not part of a group of males broken up by Police before the CCTV footage as claimed in Ms Holmes' statement. 79It was further submitted that Ms Holmes also stated that when Mr Brar was arrested the Asian male friend tried to stop them as he was taken from the platform to the lower level concourse. Under cross-examination, Ms Holmes agreed (and CCTV footage showed) that this recollection was incorrect. 80It was submitted that Mr Brar had given a consistent and honest account of the incident at the hearing and during the investigation in which he participated willingly which was as follows: He was at Central Station with a group of friends; he walked away from the group to check the train indicator boards; a male friend followed him and grabbed him from behind/jumped on his back causing Mr Brar to stumble; he didn't know who was grabbing him; Police observed this incident and started questioning him; the first time he became aware of the presence of Police was when he was being questioned after being grabbed by his friend, he was not approaching the Police. He was asked to show a ticket and identification, which he did; on providing a RailCorp employee pass, he was questioned about whether he was an employee and stated that he was a driver. 81It was submitted that this version of events was supported by the CCTV footage viewed during the hearing and there was no credible challenge to this being the way that the incident with the Police began. 82It was further submitted that on being questioned by the Police, Mr Brar felt he was being wrongly accused as he was accused of being involved in an altercation he was not part of, questioned about drugs and alcohol, and felt he was being accused of being under the influence of drugs or alcohol. He denied both allegations and felt that these allegations were very serious as he knew they could have consequences for his job as a train driver. This caused him to become agitated. During his interaction with the Police he did become upset and agitated and admitted that he did swear at them but this swearing only occurred after Mr Brar felt he had been wrongly accused and after he felt he was being poorly treated. 83It was submitted that it was reasonable to accept Mr Brar's version of events as the most reliable and that this was far more likely than that he was looking to 'pick a fight' with Police for no apparent reason. He did not target, threaten, assault or intimidate any Police officers and it would be reasonable to conclude that, if he had, this would have been included in the Police statement of facts and it was not. 84Mr Edgehill rejected the assertions made by RailCorp that the CCTV footage supported their contention as to the facts and that Mr Brar acted aggressively towards the Police. The Board should view the RailCorp's concentration on this incredibly short part of the CCTV footage as an attempt to portray Mr Brar negatively without actually establishing anything at all. Mr Edgehill pointed out that the footage does not run smoothly throughout, and may cause somebody to appear to 'lurch' at an increased speed when they have in fact moved normally, it did not truly enable judgment of the distance and angle at which Mr Brar was standing from the Police Officer, who did not step backwards, nor did any other officers intervene, as might normally be expect if somebody was physically aggressive in the way RailCorp suggested. 85It was submitted that on this basis, this evidence could not be used to establish that Mr Brar was aggressive and did not demonstrate what was said or how it was said and only showed him speaking to a Police Officer. 86Mr Edgehill also rejected as unreasonable inferences sought to be made by RailCorp (Mr Brar's friends moving in such a way as to calm him down). submitting that there was no evidence to suggest this and no way of knowing the true nature of, and reason, for any interaction between Mr Brar and people RailCorp assumed were his friends. On the evidence, an equally plausible inference would be that they felt he was being provoked or treated unfairly and wanted to comfort him. It was ridiculous to suggest that any conclusions could be drawn about Mr Brar's behavior from a small, momentary gesture made by somebody who was not Mr Brar and not known to the Board. 87In responding to RailCorp's submission that Ms Edmonds would have removed Mr Brar earlier as it was "bad public relations", Mr Edgehill noted that this was in direct contrast to the way that Ms Holmes, the Transit Officer regularly working in the field, stated she would have handled the incident. Further, there was no evidence of any complaints being made by any member of the public to Ms Edmonds or anyone else about either the incident or Mr Brar's presence on Central Station.. 88Mr Edgehill also rejected the inference made by RailCorp that the fact that Mr Brar did not call other witnesses should cause the Board to question his truthfulness. In appeals RailCorp generally has the ability and the resources to direct their witnesses to attend, give them leave from work and pay them for preparing for and attending hearings whereas Mr Brar has no such resources. It would be unfair in the extreme to conclude that RailCorp's greater ability to compel or help witnesses attend hearings should be held up as evidence of a greater level of truthfulness than an appellant. 89It was submitted that Mr Brar willingly submitted to a recorded interview where he admitted to swearing, as he did during the hearing, and gave an account of the incident that was consistent with the CCTV footage of the incident. This was in contrast to the inconsistent evidence provided in the form of the statements of Ms Holmes and Ms Edmonds and the Police fact sheet. 90In relation to the incident in the Police Station Mr Edgehill summarised the evidence of Mr Griffin and Mr Pearce. Mr Griffin's evidence about Mr Brar's behaviour was in direct contrast to that observed earlier by Ms Edmonds and Ms Holmes and unreliable. He also stated that Mr Brar only became aggressive and challenged Police after interaction with them about contacting Mr Brar's (when Mr Brar told them his father was a taxi driver and they had "a small chuckle"). This supported Mr Brar's contention. Mr Griffin also spoke with Police about what would happen to Mr Brar and told them that Mr Brar was not on duty and RailCorp had no obligation to him. 91It was submitted that in spite of recognising that Mr Brar was not on duty and not under the control of RailCorp, Mr Griffin decided to stay at the Police Station rather than returning to attend to his own duties. This was also the case with Mr Pearce. Mr Pearce stated he contacted the Regional Crewing Manager, (his senior) to advise him of the situation and agreed he was told that there was no obligation for RailCorp in relation to Mr Brar at that time. Neither Mr Griffin or Mr Pearce should have attended the Police Station in the first place and should not have stayed there when they realised that Mr Brar was involved with Police in his capacity as a private citizen, they were not on duty or representing RailCorp, they were being paid by RailCorp to carry out a management function on one of the busiest nights of the year. On Mr Griffin's admission, he was not a close acquaintance of Mr Brar and there was no reason to believe that the Police required his assistance. In these circumstances, it was submitted that it was inappropriate in the extreme for Mr Griffin to insert himself into Mr Brar's private matter. Mr Brar also stated that he asked both men to leave. He admitted that he did swear at the station but that this was done after what he believed was provocation by the Police, a contention supported by the statement of Mr Griffin. 92It was further submitted that it was relevant that both Mr Griffin and Mr Pearce observed Mr Brar to be agitated and described his behaviour as out of character, with Mr Griffin describing him as a polite employee. 93It was also submitted that the evidence relating to Allegation One raised a number of serious questions about the way the incident was handled by RailCorp. 94In relation to the incident at the Police Station it was clear that whilst he was there Mr Brar was not on duty, not representing RailCorp in any way and was also not in a public place. On RailCorp's own admission, they had no obligation to Mr Brar when he was at the Police Station, yet contended that while they had no obligation to Mr Brar, he had an obligation to them and asserted that he was bound by the Code of Conduct at that time. 95It was submitted that those two positions held by RailCorp were not consistent. The only way that RailCorp had information to issue allegations relating to behaviour at the Police Station was because two managers took it upon themselves to attend. There was no evidence that the Police required their presence, and certainly Mr Brar did not need or want their presence. He was off duty and dealing with a private matter that affected him and the Police. On this basis, the matter should never have formed part of the investigation into Mr Brar or the decision to dismiss him. 96It was submitted that the idea that what a person said or did when acting in their capacity as a private citizen, when dealing in a private matter with Police, was within the jurisdiction of their employer's own investigative force was excessive to say the least. There was no connection between what happened at the police station and Mr Brar's employment relationship with RailCorp. 97It was further submitted in relation to both 'incidents' in Allegation One that they were not serious enough to warrant dismissal for 'out of hours conduct'. There was a well established body of case law and legal principles that provided for a more stringent test for disciplining or dismissing employees for out of hours conduct, such as that referred to in Allegation One. The Board was referred to Rose v Telstra Corporation Limited Q9292 [1998] AIRC 1592 (4 December 1998) and Streeter v Telstra Corporation Limited [2007] AIRC 679. Those cases set out the principles which applied in considering the extent to which an employer can discipline an employee in relation to out of hours conduct; that being there must be a clear and relevant connection between an employee's out of hours conduct and his or her employment and in order for this connection to exist, the conduct must be of such gravity or importance to indicate a rejection or repudiation of the employment contract by the employee. 98It was submitted that the circumstances in which out of hours conduct was a disciplinary matter was limited by these cases to circumstances where: The conduct was likely to cause serious damage to the relationship between the employee and the employer; or The conduct damaged the employer's interests (e.g. creates fear or gives rise to negative publicity); or The conduct was incompatible with the employee's duties as an employee. 99Mr Edgehill rejected RailCorp's submission that the connection with employment was made when Mr Brar identified himself as a Driver. Mr Brar was required by Police and Transit Officers to produce a travel pass which indicated that he was a RailCorp employee and he was questioned about this, he had no choice but to identify himself as a Driver to Police. 100RailCorp's submission that Mr Brar's conduct damaged the employer's interests as it was 'bad public relations' was also rejected. It was submitted that in order to pass this test, there must be some demonstrable, not just imagined, damage to the employer's interests. In Mr Brar's case there was no evidence that any member of the public or the Police made any complaint to any RailCorp employee or any other body or authority at any time. There was no "bad press" and no evidence that RailCorp's interests were actually damaged. All that happened was that there was a man swearing at Central Station and he was detained by Police. On the evidence of RailCorp's witness Ms Holmes, this was not a rare occurrence. There was no reason to believe it damaged RailCorp's reputation or position in the eyes of any person (even if this were enough to pass the mentioned test). Further, the conduct did not in any way raise any question about Mr Brar's ability to drive a train. 101The Board was also referred to Nicolaides v Director General, NSW Department of Health [2011] NSWIRComm 1002 and Silling v Corrective Services NSW [2011] NSWIRComm 1065 which also dealt with out of hours conduct. It was pointed out that Mr Brar was only charged with swearing in public, a very minor offence, and this was dealt with appropriately by the Courts under the Summary Offences Act 1988. Mr Brar was punished for swearing at Police on Central Station and he was dealt with as a private citizen in a matter that was not connected with his work and only occurred after he was approached and questioned by Police. On this basis, it is not appropriate for RailCorp to seek to discipline him again and certainly not to the extreme extent of dismissal. 102It was also submitted that RailCorp's claim that Mr Brar's actions were not in the best interests of RailCorp was far too broad a concept for any employee to have a fair chance to fulfil. His actions were certainly not in his best interests but they were not an employee related incident. 103It was submitted that on the basis of the above cases the conduct that could be substantiated (swearing at Police) could not be considered of a serious enough nature to meet the test that must be applied to disciplining employees for out of hours conduct. 104It was also submitted that it was relevant to note Mr Brar's state of mind. RailCorp's witnesses stated that he appeared irrational or agitated and he admitted to being frustrated and agitated as a result of feeling wrongly accused by Police. It was reasonable to accept that he felt he had good reason to be agitated as a result of being falsely accused of wrong doing (accusations that it was submitted would cause any reasonable person to become agitated). The state of mind of an appellant has also been considered as genuine mitigation in recent cases before the Board (see Gossner v RailCorp [2011] NSWTAB 11 and Borg v RailCorp[2011] NSWTAB 24). On the basis of these cases it was submitted that, even if the Board were to find that Mr Brar's conduct was serious enough to meet the 'out of hours test' proposed, his state of mind at the time of committing the alleged misconduct made it appropriate to Order a lesser punishment than dismissal. 105It was submitted that in relation to Allegations Two and Three, Mr Brar denied providing false and misleading information regarding the taking of a sick day on 31 December 2011 as he provided the necessary information to his supervisors and rostering officers. Effectively, RailCorp had charged Mr Brar with taking a 'sickie'. It was submitted that this is a one-off instance of minor misconduct that, on any reasonable view, would not constitute a valid reason for dismissal. 106It was submitted that Mr Brar had made reasonable attempts to secure a day off for 31 December but ended up being rostered to work a 'stand by' shift. He would not have been a very useful employee to RailCorp because, as he explained during his evidence, he was not qualified to drive the 'roads' of the Campbelltown Depot where he was rostered to work. He tried to resolve this issue with management but was unable to and as a result felt upset and, along with other incidents that had occurred throughout the year, felt he was not in an appropriate state of mind to drive and that he would be fatigued. He stated that he believed it was okay to take a casual sick day on days when he effectively did not want to go to work. 107It was submitted that while this sounded rather odd and was obviously incorrect, what the Board should note is the custom and practice asserted by Mr Brar, a custom and practice that RailCorp could have, but did not, investigate after Mr Brar's comments in the Disciplinary Interview. 108The Board was also referred to the provisions of the relevant Enterprise Agreement which allowed employees to take a number of 'casual sick days' (that is uncertified) each year. It was submitted that in an industry where coming to work fatigued, under the influence, or in a poor state of mind, could have very serious consequences, a practice had arisen of employees taking these days when they felt they were better off not coming to work. This is what Mr Brar was doing when he called in sick for 31 December. It was not the case that he simply did not want to go to work, as RailCorp contended. He felt, rightly or wrongly, that he had good reason not to go to work and that he was simply doing what was accepted in taking a causal sick day. Further, RailCorp's witness Mr Briggs agreed under cross-examination that there were a number of reasons that employees took casual sick days, which may not mean that they were sick. Also the day of the year on which the casual sick day occurs was not relevant and Mr Brar's willingness to admit to the sick day during the interview with RailCorp investigators (which lead to the two charges being issued) demonstrated he was following what he believed to be an acceptable practice. While he may have been incorrect in his interpretation, these issues still needed to be considered by the Board in determining punishment. It was also relevant that. It was also relevant to note that Mr Brar did not have any history of attendance problems, excessive sick leave, or of taking inappropriate leave. 109Mr Edgehill concluded by submitting the following: Mr Brar was a good employee with seven years' service with RailCorp and had no discipline record or work performance issues before this investigation. He was described by RailCorp's own witnesses as being polite and a good worker. On the night in question (New Year's Eve), he was out with friends when he was approached by Police and wrongly accused of fighting and of being under the influence of drugs and alcohol. He was offended by this, became agitated and when agitated swore at Police and was taken by them to a Police Station and charged with swearing in public. When the matter went to Court he was told he should only have been given a fine and that it was not offence warranting arrest. All of this happened while Mr Brar was off duty and acting as a private citizen but throughout this incident a number of other RailCorp employees inserted themselves into this private matter without Mr Brar's consent. While no complaint was made by any member of the public, RailCorp used the statements of these employees to issue an allegation to Mr Brar. Mr Brar willingly answered the allegation and attended an interview, answering questions honestly and in good faith. He was asked a number of questions about going off sick and was led by investigators into a position where a further two charges were issued against him for taking a sick day that he believed he was entitled to take. The allegations concerned an event that happened off-duty and that should have been considered outside the area of responsibility of RailCorp. What could be demonstrated as having happened, swearing in public, was not serious enough to warrant dismissal in any circumstances, particularly when it happened out of hours. 110It was submitted on the basis of these matters that dismissal must be considered harsh in all the circumstances. Mr Brar should be returned to his former position with full continuity of employment and back pay. If any remedial action was to be taken, it should be counselling about the use of sick leave and Employee Travel Passes. Respondent's Reply to Appellant's Closing Submissions 111Ms Baxter in RailCorp's written reply to the RTBU's closing submissions referred relevantly to the evidence including the CCTV footage viewed during the hearing. 112Ms Baxter responded to the RTBU's submissions concerning Ms Edmonds evidence and her specificity as to Mr Brar's language and phrases despite not having made contemporaneous notes and submitted that it was obvious that it would not be difficult to recall an incident where a RailCorp employee swore constantly, using words to the effect of "I'm a fucking driver you cunts, her evidence was largely consistent with other witnesses (including the NSW Police Facts Sheet) who observed Mr Brar on the platform, on the concourse and also at the Police Station. 113It was submitted that were the statement evidence of Ms Edmonds and Ms Holmes to have been identical, then there might have been a case for the RTBU to submit that the evidence was unreliable, but they were not, and in all relevant aspects they were materially consistent. Mr Brar admitted, albeit reluctantly, that he swore and given the wealth of evidence that he used the words "fuck" and "cunts" (and variations thereof) continually throughout both incidents, the Board must only find that he did so. 114Ms Baxter also rejected the submission that Ms Edmonds' evidence was exaggerated or that she took an unusually 'gung ho' approach to the incident on the basis of the other witness' evidence which supported the fact that he went well beyond what could be termed acceptable behaviour on any view. He did not swear at once or twice in frustration. The CCTV footage and witness evidence showed he continued with the offensive language and that the scale of his behaviour was what made the incident an issue. 115It was submitted that whether or not there was a prior incident on the platform involving Mr Brar was irrelevant to the allegations. When the Police approached him any questions they may have had could have been dealt by him in a calm unreasonable manner, they were not. 116Ms Baxter reiterated that for the RTBU to essentially blame Ms Edmonds, Mr Griffin and Mr Pearce for getting Mr Barr into trouble was untenable and any claim as to their actions in no way mitigated Mr Brar's misconduct. Even if all three independent management level employees went beyond what was officially required of them by their respective position descriptions that day (and this was rejected), it did not excuse the manner in which Mr Brar 'reacted' as he claimed to have done. 117Further if Mr Brar's evidence that he was not intoxicated or under the influence of some kind of drug was accepted, then the only reason he offered for reacting as he did was frustration. If that was the case then it was submitted that that his actions were all the more serious. RailCorp Train Drivers were required to react in stressful situations in a calm and controlled manner. Mr Brar's actions were anything but, and were incompatible with his role as a Train Driver. 118Ms Baxter also rejected the RTBU's submission in response to the issue raised by RailCorp concerning the lack of witnesses being called by Mr Brar on his behalf as being a misrepresentation of that submission. RailCorp was able to require its employees to give evidence where relevant. Witnesses that were available to Mr Brar to corroborate his version of events were his friends that were standing on the platform with him that time. They were not RailCorp and the RUI had no information as to their identity or contact details in order to obtain witness statements from them. It was for Mr Brar to proffer witness evidence from his friends and the fact that he chose not to left open the inference that what they witnessed was not consistent with his version of events. 119In response to the RTBU's reliance on the principles applying to a consideration of out of hours behaviour as found in Rose and Streeter, it was submitted that if the Board was minded to apply the same strict tests to a Transport Appeal Boards decision then it should take the evidence in support of the following factors into account: The misconduct took place at a time when Mr Brar should have been on duty. He was rostered to work a New Year's Eve shift and his request to change that shift was reasonably denied on operational grounds. He was only off duty as a result in calling in "sick" in circumstances where he was not genuinely unwell. The misconduct commenced on RailCorp premises; a busy platform at Central Station on New Year's Eve. The misconduct commenced in full view of co-workers and the public; on the busy platform, then on a busy concourse at Central Station. The misconduct continued at City Central Police Station. Mr Brar was travelling on his RailCorp Employee Travel Pass. Conditions of use of Travel Passes were well known and agreed to by him. He was required to be an "ambassador for RailCorp", to "uphold the values and professional standards outlined in RailCorp ... and the Customer Service Commitment/Charter". Mr Brar identified himself as a RailCorp employee, not only by providing his Travel Pass to the Police if or when requested, but by doing so in an unacceptable manner. The evidence was that he immediately, or at least very quickly, said words to the effect of "I'm a fucking driver you cunts." These words or very similar words were heard that each of Ms Edmonds, Ms Holmes and the Police. 120In the event that the Board considered that the case law was relevant, then Railcorp submitted the following, having regard to the evidence and the factors referred to above: Viewed objectively, Mr Brar's misconduct was reasonably likely to cause serious damage to the relationship between Mr Brar and RailCorp. He acted dishonestly and unreliably by calling in sick when he was not genuinely unwell. He then behaved in an unacceptable manner on RailCorp premises in front of co-workers and the public, demonstrating a disregard for his role as a Train Driver and the authority of the Police. By his actions his professionalism and integrity was compromised to the extent that RailCorp could no longer trust him to act in its best interests. Viewed objectively, his misconduct was reasonably likely to damage RailCorp's interests in terms of reputation and/or negative publicity. This was supported by the evidence of Ms Edmonds and Mr Pollard. While Mr Pollard obtained no specific evidence of public complaint, the conclusion could not be drawn that Mr Barr's misconduct was in the best interests of RailCorp. On any reasonable view an employee continually swearing in public and identifying his connection to his employer had the very real potential of attracting bad publicity and/or bringing the employer into disrepute. RailCorp takes proactive and reactive steps to ensure safety before complaints are received or accidents occur. There was no reason why it should not do so in matters concerning reputation, publicity and customer service. Mr Brar's conduct was incompatible with his duties as a Train Driver. His responsibilities as an employee included turning up to work when required to do so. The fact that he chose to call in "sick" because he was unhappy about not having leave approved at a busy time of year showed that he could not be relied upon. Further, his conduct on the platform and continued at the Police Station demonstrated a lack of professionalism, integrity and respect for his role as a driver. 121Ms Baxter again referred to Mr Brar's changing submissions throughout the disciplinary process and the hearing as to why he called in sick and suggested that he had been less than truthful. It was submitted that the position he took that he was not fit for duty in the circumstances claimed undermined other legitimate claims by employees to sick leave for reasons such as fatigue or intoxication. The allowance of six uncertified sick days per year should not be abused by employees claiming it simply out of frustration for the responsibilities associated with their role. 122RailCorp maintained that dismissal was the appropriate penalty for Mr Brar's misconduct in the circumstances and his appeal should be disallowed. Evidence 123RailCorp's evidence before the Board was contained in the Investigation Report (Exhibit 1- E) and additional attachments (Exhibit 1F-N) which included, inter alia, the various letters exchanged concerning the Allegations; the transcript of the Disciplinary Record of Interview; records relating to Mr Brar's sick leave on 31 December 2010, CCTV footage of three locations at Central Railway Station (platforms16/17, the concourse area and foot of the stairs leading to platforms 16/17); a copy of the relevant NSW Police Facts Sheet, together with Mr Brar's Ellipse Personal History Report; the Code of Conduct; Leave Policy; Annual Employee Declaration; correspondence exchanged concerning the outcome of the disciplinary process; and Statements from the following RailCorp employees: Allan Pollard ..........Investigator RUI (Exhibit 1-B), Magda Edmonds... Acting Operations Inspector (Exhibit 1-E15), Rosanne Holmes...Senior Transit Officer (Exhibit 1-E16), Mark Griffin............Team leader TCAC (Exhibit 1-E17), Stephen Pearce.....Depot Manager Central (Exhibit 1-E18), Paul Briggs............Senior Operations Standards Manager (Exhibit 1-HI). 124Mr Pollard, Ms Edmonds, Ms Holmes and Mr Brar were each taken to the CCTV footage as necessary during the course of their evidence. Ms Holmes saw the CCTV footage for the first time prior to coming into the hearing and Ms Edmonds first saw it after she had made her statement in January 2011. 125It was the evidence of both Ms Holmes and Ms Edmonds that on the night of the 31 December 2010, whilst on duty with Police from the Rail vandalism Task Force they had responded to a reported incident on platform 18. Whilst on that platform Ms Holmes noticed that across on platform 16 (at the northern end) a group of youths appeared to be having a verbal confrontation. She believed this because their body language indicated an argument and they were in each others faces. The two Transit Officers then made their way to platform 16 (via the stairs on each platform) and were accompanied by the Police Officers who had also responded to the earlier incident on platform 18. 126They both essentially deposed as to one of the Police Officers approaching the group, which then dispersed, an Asian male spoke to the Officer. Ms Edmonds remained there, while Ms Holmes and the other Officer moved away. The Police then spoke to both Transit Officers and Ms Edmonds stated she then noticed another male walking quickly towards them with the Asian male who interjected and tried to hold him back. She also thought he yelled something, was not sure what, but it was loud). 127Ms Holmes stated that after the group was broken up there was an Asian male and a dark skinned male and the Asian male was trying to walk the other male away and "he appeared intoxicated as he looked unsteady on his feet and he was resisting his companion." She believed he was walking towards the Police and would have been aware of them coming up the stairs. A male Police Officer subsequently got between the Asian male and the other male (Mr Brar). She agreed in cross examination that the reason Mr Brar could have stumbled was because he was grabbed rather roughly and thrown off balance. 128There was extensive cross examination of both Ms Edmonds and Ms Holmes, especially about the earlier incident, but both essentially maintained the account in the their statements. Ms Edmonds did say that the Asian male approached Police to say 'there was no problem here," with a female drawing attention to the other male. 129The NSW Police Facts Sheet also referred to this earlier incident as follows: About 10.30 pm on Friday 31st December 2010 the accused, Jasdeep BRAR was at the Northern end of platform 16 at Central Railway station with another male and female friend. A disturbance has begun between the accused and another group of mass, the accused's friend has pulled him away from the group before it escalated however by this time Police and Transit Officers were already on the platform. Police approached the accused who was now with his friend at the top of the second most Northern set of stairs on the platform. He was unsteady on his feet and being held up by his friend. 130When the female Police Officer (Constable Dwyer) approached the dark skinned male (Mr Brar), the two Transit Officers reported the following (or words to the effect of) being said at various stages during the course of the incident on the platform (although Ms Edmonds said that she did not hear what the Police Officer initially said to Mr Brar), and including at the end of the exchange when the Police took hold of Mr Brar's arms and took him from the platform and led him down the stairs: Ms Edmonds - Mr Brar: "I'm a fucking train driver, you cunts. You can't do shit". "This is my station. I'm a fucking driver here. I work here. I work here and I've got all the rights. You can't do nothing to me". Female Police Officer: "I don't care who you are. You need to calm down and tell me what has happened." Mr Brar: "I'm a fucking driver that's what happened. You can't do nothing to me". "You can't do nothing. Don't speak to me." "You can't do nothing to me you Transit dogs." "Don't you fucking touch me you cunts. I am a fucking driver you don't know what you are doing" Ms Holmes - Mr Brar "I'm a fucking train driver you cunts. See here's my ticket cunts" "I'm a fucking train driver why are you fucking talking to me." 131Ms Holmes also stated that Mr Brar kept on with the abusive language, did not let up, and was also yelling out abuse when the Police took hold of his arms to take him from the platform. Ms Holmes also stated that the Police Officer told him to cut the language. Ms Holmes' contemporaneous notes also refer to Mr Brar saying "I'm a fucken (sic) train driver", and, "I'm a fucken (sic) train driver cunts. See here's my ticket", as well as, ..."Police tried to calm him down but he continued swearing towards Police". 132Ms Holmes said that she looked at Mr Brar's Rail pass and there was nothing false about it. She also asked for his Driver's Licence to confirm it was actually his pass, was happy with it, gave it back to him and he put it in his wallet and the Police appeared to accept his identity at that stage. 133Ms Edmonds also stated that while on the platform she heard the female Police Officer say " "You just spat at me". Ms Edmonds had seen him 'frothing from the mouth', did not see him spit, but 'saw a fair bit of saliva on her shirt'. 134Both Transit Officers described Mr Brar as being "aggressive" with Ms Edmonds saying "super aggressive". Ms Holmes agreed that she could not smell alcohol on Mr Brar and he was not slurring his words. She was standing about a half a metre to a metre away. She also did not make any reference in her contemporaneous notes to Mr Brar being intoxicated. At the time of writing the notes she didn't believe he was intoxicated but on thinking about it the next day she believed there was some level of intoxication but made no note of that. Ms Edmonds also agreed that he was not slurring his words when he was swearing, as he was yelling out and it was hard to slur when yelling. She said she did not know what his speech was like later on when he was at the Police Station. 135Ms Edmonds did not consider that the Police handled the incident on the platform in any way inappropriately, they were being fairly tolerant and it just escalated. If the Police had not been present then as a Transit Officer she would have gone down the road initially of issuing an inventory notice for the offensive language and if the behaviour continued it would have been a direction to leave from the Station for a period of four hours and if that wasn't complied with, then it would involve the Police. 136Based on her experience in security at RailCorp she did not consider that the actions of the Police towards Mr Brar that night were in any way inflammatory or caused him to flare up in any way. 137The only thing that Ms Holmes disagreed with in the NSW Police Facts Sheet was the time they noted as being10.30 pm, saying it was 10 pm. 138When the Police had Mr Brar at the bottom of the stairs and seated against the wall of the Station Concourse, Ms Edmonds stated that Mr Brar continued to yell abuse saying things like "You cunts. You can't fucking do shit. I am a driver. You got no idea what your doing. You fucks. You pricks". . 139The Police took the Rail pass from Mr Brar and gave it to Ms Edmonds and she took the pass up to the Train Crew Assignment Centre. She could not remember if the Police asked her to, but thought that it was her decision and for her own general knowledge as he had said he was a Train Driver. She spoke to a guard supervisor (but was not sure of his name), asked him to confirm if in fact he was a Driver and told him the male had been arrested by Police and they needed to confirm his identity. The supervisor read out his name to another man in the office and then confirmed the male was a driver at Eveleigh. She returned to the Police and he was going on and she could hear them shouting as she was coming down the escalators. She handed the pass back to the Police, confirmed he was a Driver and he said "Of course I'm a fucking driver you cunts". The Constable advised her that they were going to arrest him and took him away. 140It was clarified during the evidence by Ms Holmes that the RailCorp Employee Pass did not identify what type of an employee the holder of such a pass was, such as a Train Driver. It was Ms Edmonds' evidence said that while she was not dealing with the situation and did not ask him for any other identification (and had not sighted his drivers licence), she was trying to ascertain his identity and as he was very vocal that he was a Train Driver. She wanted to assist the Police to ascertain whether he was an active Driver. If he had never brought up the pass it might not have gone that far. She did not know if he was asked for a valid ticket as she didn't hear that. 141While the Police were talking to Mr Brar and trying to calm him down Ms Holmes moved away and rang the Security Control Centre (SCC) and advised them of the incident. She later submitted an SSR report and arranged for the CCTV footage to be saved. She also wrote contemporaneous notes which Ms Edmonds later read and adopted. However Ms Edmonds said that she did not rely on Ms Holmes notes when she came to make her statement. 142Ms Holmes stated that after speaking with the SCC she had a conversation with the Asian male, asking him what was it all about, and he informed her that it all started because his friend had kicked the kids off the train the previous week for smoking and the kids recognised him. 143Ms Holmes described the general behaviour and demeanour of Mr Brar as "very offensive. He was well over the top and irrational". She went on to say that the Police were "very patient" with him and gave him plenty of opportunities to calm down however he would not comply. He just kept on with the abusive language. She also stated that while he was seated on the floor there were large numbers of people all around "including women and young children". Ms Holmes agreed that it was not a pleasant incident to be involved in on the night but denied that she took some dislike to Mr Brar as a result and that her interaction with him led her to the opinion that he was not a person of good character and also denied that her opinion had "coloured" her retelling. She said that it was the first time she had met Mr Brar. She confirmed that she had often seen people like that behaving unacceptably, especially on a Friday and Saturday night, and based on her experience, regardless of whether or not Mr Brar was intoxicated, she judged his behaviour as not acceptable or appropriate. 144Further her overall memory of the incident accorded with the CCTV footage viewed during her oral evidence. Her memory had not changed from when she wrote her statement in January 2011 and as at the hearing had not changed in term of the behaviour of Mr Brar she had observed and the offensive language. 145It was also Ms Edmonds' evidence that while she did not take notes on the night, and her statement was based on her memory, it was not the kind of incident she would forget, purely because it was New Year's Eve and Mr Brar advertised the fact that he was a RailCorp employee, and as a manager with RailCorp that was a significant incident for her. She was disappointed with his attitude as a RailCorp employee and would have liked to have removed him from the area a little bit quicker in order to contain the language and the bad public relations that was occurring because there were a lot of people that stopped and watched. 146Ms Edmonds also described Mr Brar's behaviour as "highly aggressive and disgusting". The Police gave him many opportunities to calm down however he would not listen to reason. She also considered it disgusting that he was yelling that he was a driver and people overheard this. This put RailCorp in a bad light and gave the public and Police a negative perception of RailCorp. 147She could not smell alcohol on him and he was not slurring his words but appeared to be "loud and aggressive" which led her to believe that he may have been under the influence of some drug. In oral evidence she described his physical state and demeanour as being "intoxicated and that was clear" and that was why he stumbled when his friend grabbed him. She said he was sort of "loose legged", he was unsteady on his feet when his friend turned him away and was just continually argumentative towards the Police. 148In addition to the paragraphs from the NSW Police Facts Sheet as set out in the Background and Chronology above (at paragraph 8) the Police Facts Sheet also went on to state: The accused was escorted off the platform to the concourse area of Central Station in minimised public view whilst Police attempted to verify his identity. The accused did not cease with his abusive language continuing "you fucking cunts have got nothing". Again the accused was warned about his offensive language and if it continued he would be arrested. The accused was not deterred, and continued ranting using the word "fuck and cunt" constantly. As a result he was placed under arrest and escorted to Eddy Ave Police Station. The accused continued to abuse Police inside the Police station stating "you cunts are just fucking transits, you have got fucking nothing, i live in a fucking big house, i drive a fucking Mercedes." Police contacted Mark Griffin, the Team Leader of Train Crewing Management, along with another Rail Corp Manager attended the Police Station. They attempted to speak to the accused in relation to his behaviour however were unable to reason with him and the abusive language continued. 149Mr Griffin has been with RailCorp for almost thirty six years and in his current position for ten years. On 31 December 2010 he was outside the TCAC room when he was approached by a train crew person who told him that one of their Train Drivers was in trouble with the Police. He then went and spoke to Mr Pearce and asked him to come down with him to see what was going on. He attended because he thought it was one of their Train Crew who was on duty that was being detained and so he went because he thought his assistance could be beneficial or necessary. 150When he got there he saw a male sitting on the floor surrounded by Police and Transit Officers and recognised him as one of their Train Drivers, Jasdeep Brar, based at Campbelltown. He was yelling out things to the Police and saying words to the effect of "I've told you my name. I'm a RailCorp train driver. I have done nothing wrong". He also later said "I told you I was a train driver". He did not hear Mr Brar swear. When the Police walked past with Mr Brar he believed Mr Brar recognised him. His first impression was that he was under the influence of some type of substance as he seemed to need a bit of assistance when he was led away by the Police. 151The Police escorted Mr Brar towards the Country Link Platforms and when he saw that the Police seemed to be in control of everything, and as it was not an employee working, and he was not Mr Brar's direct manager, he did not intervene because he thought it was out of his area and he left, returning to his duties. Mr Pearce had indicated to him that he would contact Michael Beckett, the Depot Manager, at Campbelltown. 152Mr Pearce has been employed with RailCorp for 24 years and in his current position for four and a half years. He had known Mr Brar for about 15 months and was aware that he was now at Campbelltown and had supervised him for a period while he was at Central. He confirmed that Mr Griffin asked him to go with him, as a Train Driver was being arrested. When they arrived at the Concourse he saw Mr Brar and stated that he was very aggressive towards Police and yelling out verbal abuse. He had an angry look on his face and aggressive mannerisms. He recalled him saying things like "You can't do this to me, I'm a fucking train driver". He was yelling out other abusive language. He was not sure what he said but there were members of the public around and "this was not a good look." 153When asked if Mr Brar's voice was raised, he said he could hear him from a distance of about 20 feet away. He was aggressive and arrogant and his tone was "agitated, argumentative and irrational in a way". 154Some time after Mr Griffin had returned to the office he received a request from a station staff person (who was not known to him) stating that his presence was required at the Eddy Avenue Police Station. Mr Pearce and he then proceeded to the Police Station arriving at approximately 10:25 pm. He agreed that Mr Brar did not contact him. He did not know at that time who had made the request, or why, and did not have the contact numbers for the Eddy Avenue Police Station but anticipated that it might be to do with Mr Brar. He had concerns that Mr Brar had been taken away, didn't understand why, and no-one was talking when the Police went past. 155When Mr Griffin got to the Station he was asked to confirm whether that was Jasdeep Brar sitting in the chair and whether he was a Train Driver who worked for RailCorp. 156Mr Pearce also confirmed that after he had returned to his duties he was subsequently asked by Mr Griffin to go with him to the Police Station. He believed he was advised by Mr Griffin that he had received a call from Police, but nobody from the Police asked Mr Pearce to attend nor did Mr Brar. 157Mr Griffin said that when he first arrived at the Station Mr Brar recognised him, and more or less said "Griffo tell them who I am." Mr Brar told him they had got the wrong person, he had been drinking but he was OK. Mr Griffin sat down next to him and could tell that he was intoxicated as he was slurring his words, his head kept swaying back and forth and then all of a sudden he would sit bolt upright and Mr Griffin had to put his hand behind his head at one stage and said "Jas you've got a window behind you". He had a "strong smell about him, more like a spirit smell, it smelt fresh as though he had just consumed it" and he was also incoherent and a little clumsy with his movement. He was not swearing at this stage. 158Mr Pearce said he could not smell any alcohol on Mr Brar however his slurred speech and aggressive manner led him to believe he was "under the influence of something". 159The evidence of Mr Griffin and Mr Pearce about Mr Brar's behaviour at the Police Station was that he was "mouthing off to Police (Pearce) and being 'loud and rowdy towards the Police" (Griffin). They both confirmed that attempts were made to calm Mr Brar down. Mr Griffin indicated that the Police told him that Mr Brar had asked for him and they hoped he could calm him down. Mr Griffin related his attempts to calm Mr Brar down and the conversations he had with him. He also told Mr Brar at one stage that he was supposed to be at work and had called in sick and that "this is not painting a good picture". Mr Brar told him he had done the right thing and advised he was sick. 160Mr Griffin said that he told Mr Brar that he could be in a bit of trouble because of his actions (the way he was carrying on) and he did calm down and told him he was calm, but then he would flare up again and Mr Griffin would have to speak to him again. 161Mr Griffin said that Mr Brar appeared quite comfortable with them being there, and he did not tell them to go away, or that he did not want their assistance. 162Mr Griffin disagreed with the proposition that that there was no reason for him to be there as he tended to calm Mr Brar down and he seemed to listen to what he said. When he went to the Station he did not expect that he might be needed to calm Mr Brar down. He did not agree that he interfered with Mr Brar's personal business in a way that was inappropriate. 163Mr Pearce also stated that whilst they were at the Police Station an Officer requested that he confirm Mr Brar's identity and also asked him to try to calm him down. He did not know why the Police made that request of him. 164Mr Pearce was aware that Mr Brar was off duty. He attended at the Police Station because he was asked to do so. He was asked to try to calm Mr Brar down and tried to do that. He denied attending out of his own curiosity, and Mr Griffin made the same denial. 165Mr Pearce also went outside at one point and phoned Mr Michael Merceica, the Regional Crewing Manager, who was on duty at Central that evening. He rang him to get some clarity on what they should do, and what he should do. Mr Merceica told him that as Mr Brar was off duty there was not obligation on RailCorp at that time. One of the Police Officers came out and asked him to try and calm down Mr Brar again and he did so because the Police had asked him to. He was aware that he was on duty and being paid for his time, but said that if the Police gave him a further direction then he would comply with that direction. 166When asked if he considered that, having been told by his employer that it was nothing to do with them yet he chose to follow further directions, he responded that he considered that in his role as an employee and a manager he was asked to assist and he did so. 167Mr Pearce had also contacted Mr Michael Beckett, the Campbelltown Depot Manager, and advised him of the situation and was told by him that Mr Brar was rostered for an 8pm shift but had called in sick. 168Mr Pearce also stated that he recalled Mr Brar saying words to the effect of "I am a fucking driver, you can't do this to me". He also said at one point "Come on I'll take you on". He kept repeating that he was a driver, was very irrational and would not calm down. The Police kept trying to calm him down but he wouldn't comply. This sort of behaviour continued for about thirty minutes. 169Both Mr Griffin and Mr Pearce stated that they made attempts to calm Mr Brar down. They also went outside at one stage as his Asian friend had turned up and Mr Pearce spoke to him and was told that he and Mr Brar had had a few shots of Absinthe. He was aware this was a form of spirit high in alcohol content. He acknowledged that he neither observed Mr Brar carrying alcohol, nor having it on his person. As a RailCorp manager he did not require Mr Brar to undergo any sort of test because it was not an operational incident in the workplace. He was not aware of whether Mr Brar had been tested when he returned to the workplace. 170Mr Griffin also confirmed that he did not observe any alcohol on Mr Brar or see him consume alcohol, and did not arrange for him to be tested. 171 When they came back in after speaking to the Asian friend, Mr Brar became agitated again. He also became agitated later on when two other Officers came into the foyer. Mr Griffin also confirmed that Mr Brar said things like "I will see you on the street as well" (to a female Officer) and also "I'll take you'se all". 172They both indicated that the Police told them that if Mr Brar didn't calm down he would not be released. Mr Griffin also stated that the Police told him that he was very close to being put in a holding cell. He stated that once that happened there was no turning back. They asked him what RailCorp could do and he told them RailCorp had no obligation to help him. He also told them RailCorp would not provide a taxi to take him home as he was off duty. It was decided the Police would call his father. 173Both Mr Griffin and Mr Pearce referred to several attempts by Mr Brar to say a telephone number and Mr Griffin referred to an exchange between Mr Brar and Police about calling his father as he was a Taxi driver during which some of them had a "small chuckle" and that at this point Mr Brar "lost control" appeared to "zero in one particular officer and said to him, "do you have something against taxi drivers you dog. I see you in the street dog, I will fix you up" with the Officer saying to him " Just calm down. I have nothing against taxi drivers, my father is a taxi driver." 174Mr Griffin said there was no animosity in the chuckle by the Police it was just a person having four, five, half a dozen attempts to remember a number and they couldn't, and couldn't get it out. 175Mr Griffin advised Police he could not stay and there was nothing else he could do. He and Mr Pearce then left the station and returned to their duties. The following week Mr Pearce sent an email to Mr Briggs at Campbelltown advising him of the situation and the Police outcome. He believed this was the correct thing to do as Mr Briggs was the Acting Depot Manager at that time. 176Both men commented to the effect that it was out of character for Mr Brar and they had never seen him act in a aggressive manner as he did that night. Mr Pearce had never seen him use the amount of "obscene language" as he did that night. 177Mr Pearce confirmed that he had had no problems with Mr Brar in the past in relation to behavioural incidents, only operational incidents. 178Mr Pearce confirmed that he did not have any sinister or ulterior motives in attending the Police Station. When he was first asked to attend the Suburban Concourse area he was not aware that the individual was Mr Brar, or that he was off duty. The initial word they got was a driver had been arrested, so he initially thought it was somebody that was on duty. He did not consider there was anything inappropriate in him later attending the Police Station. Mr Griffin said the Police had asked him to attend and then asked Mr Pearce to accompany him. He had no personal issues with Mr Brar, they had never had a bad word or argument. Mr Griffin also confirmed that he had always had an amicable relationship with Mr Brar. 179Mr Griffin said he believed he had a personal duty of care to Mr Brar. It might be correct that he was off duty and that he had no obligation to Mr Brar, however he cared about the staff he worked with, as a manager you didn't walk away from them and he felt he was doing some good by being there because the Police Officer told him that if they took him out to the dock there's no turning back. 180Mr Griffin from his observations did not consider there was anything inappropriate in the way Police handled Mr Brar. There was one particular Officer who seemed to be in charge and he showed considerable restraint that Mr Griffin had never seen. His normal expectation was that if you didn't cooperate they would give you a hard time.The Police Officer said try to calm him down because once we get to the dock (and Mr Griffin assumed that meant gaol) there's no turning back and he kept telling Mr Brar that all he needed to do was demonstrate that he could calm down and the Police would let him go. 181Mr Briggs was not sure when Mr Brar transferred to Campbelltown, and while he agreed his Ellipse Record said it was 24 October 2010, he thought he might have come later than that because they were short staffed in the City. 182He stated at no time had he ever advised Mr Brar to report sick for New Year's Eve. He would never give such an advice to an employee as this would be a clear breach of the Code and jeopardise his role with RailCorp. He would only do so if there were extenuating circumstances such as a relative in hospital. Mr Brar had come to see him on 23 December to discuss leave on the New Year's Eve, told him he had an agreement with his previous roster clerk at Central to be rostered off, and Mr Briggs told him they could not guarantee the night off for him. He then telephoned the roster clerk to ask if they could roster him off (while Mr Brar was present) but was told no, he was already rostered for a shift and would be required. He advised Mr Brar to try and swap his shift with another crew member as that was the only way they could cater to his request. Mr Brar then became a bit agitated at this advice and said "Well, I will just go off sick then" and walked out of the office. He agreed that he did not take any action about that at the time. He had a lot of employees who would make angry statements but would not go forward with it. He also denied that at the time Mr Brar posed that as a question. He said that there was someone else in the office at the time who he had only found out recently had witnessed the conversation. He had made notes at the time but they were the diary they were written in had gone missing. 183He thought that it was later that day that Mr Brar returned (but could not be sure it was on that same day or some other day) and requested to discuss annual leave for 2011 and Mr Briggs told him they would honour any previous annual leave from Central InterCity. He had no control over the rosters at Central, or any role in approving leave for those working such rosters. 184Mr Briggs stated that a no time did Mr Brar tell him he had pre-purchased a ticket to a New Year's Eve function, and if this was the case he could not understand why he could not have submitted a leave application at the time he purchased the ticket. New Year's Eve was a very busy night on the railways and therefore was very competitive with employees who requested the day/night off. 185Mr Briggs denied that Mr Brar was not originally rostered to work on the New Year's Eve as when he first transferred to Campbelltown he was not on any sort of roster because he was being trained. 186Mr Pearce also said that while he did not know when Mr Brar transferred back to Campbelltown from Central he had not approached him at any time between October and December 2010 requesting that leave be approved. 187Mr Briggs responded to Mr Brar's assertion that he was not fully trained on all the roads, explained the training process and said that because Mr Brar was transferred back, and because of public holidays, they trained him up on as many roads as possible and he went back on the roster because he was qualified. If he was not qualified on any track they would just ring up TCAC say they weren't qualified and get another driver. 188Mr Briggs believed, based on written reports he had received, that Mr Brar had been fully trained on all the roads. He thought he was rostered on a late standby shift (explaining what that involved) for that night and agreed that if he had not been fully trained they could not have used him. He could not recall that Mr Brar raised that as an issue during the conversations he had with him about being rostered on the 31st. 189Mr Briggs acknowledged that it was a driver's responsibility to manage their fatigue and that it wasn't acceptable for a driver to attend for work and drive a train if he was fatigued. He maintained that they did not get many drivers going sick claiming fatigue, it was pretty unusual, it was the usual medical conditions. 190Mr Briggs also explained the fortnightly roster and the fatigue scoring system used, based on the number of hours worked, to determine whether a driver or crew member could be rostered. 191Mr Pollard has been an investigator with RailCorp for 12 months. He had viewed the CCTV footage as part of the investigation. He made an observation of the people around at the time on the Concourse and it was important to note that the alleged behaviour that was going on was in view of the public, and in view of other people in the area. He agreed that he was not aware of any of the people depicted in the footage making a complaint, nor was he aware of any complaint made by a member of the public or a complaint made to staff. He also acknowledged that the Police did not make a complaint to RailCorp. 192Mr Pollard did not think it necessary that there had to be a complaint from the public to demonstrate poor public perception of RailCorp. There were professional people in the Police there, and they had their own RailCorp Transit Officers, and also other witnesses, managers, that were present and could form a view, or have an opinion as to behaviour. He agreed that it was not necessary for there to be widespread negative media attention before RailCorp acted on matters such as this that might bring it into disrepute. 193He did not obtain a statement from the Police Officers because the matter he was investigating concerned an employment matter not a criminal matter. He did not see the need to interview the Police and there were other witnesses to provide sufficient information. He did rely on the Police Facts Sheet as that was a summary of the facts presented to the Court. He did not believe that the Facts Sheet contradicted evidence he had personally obtained from witnesses. 194When taken to a comparison of the Facts Sheet and evidence of the Transit Officers concerning slurring of words etc., he said that he had not made a conclusion whether or not Mr Brar was intoxicated, only made an inference that based on the majority of the evidence at the time he was under the influence of a substance. This was based on the evidence of professionals such as the Police. 195Mr Pollard did not agree that he could not reasonably conclude that Mr Brar was under the influence of drugs, including alcohol, but did agree that Mr Brar did not undergo drug test of any kind and he was not aware if he was breathalysed. 196Mr Pollard acknowledged that he had framed the allegations put to Mr Brar, and that in relation to Allegation One he considered that Mr Brar's actions were not in the best interests of, and damaged RailCorp interests, because, " Public perception of a railway worker, the police perception of a railway worker, those actions by him identifying himself to be a RailCorp driver at the time was in fact the essence of why it was deemed not in the best interests of RailCorp. Had he not disclosed that he was - repeatedly disclosed that he was a RailCorp driver it may not have even come to be an issue." He also agreed that the actions took place on RailCorp property and in a public place. 197Mr Pollard confirmed that the Disciplinary Interview was concerned with Allegation One, which was the only allegation that had been put to Mr Brar and that he was not aware of the allegations concerning sick leave. Mr Kinney had asked him questions about the sick leave. That was the first interview Mr Pollard had been at where the interviewee had provided information that could possibly lead to another allegation for which they needed to gather evidence. 198Mr Pollard denied that by Mr Kinney continuing to ask questions about the sick leave before he was informed it was a suspected breach, this denied Mr Brar a meaningful opportunity to respond to the allegation they were effectively putting. He sent a further allegation letter to Mr Brar giving him an opportunity to respond to those allegations which he declined to do. 199Mr Pollard agreed that Mr Brar said that he was adamant that he was honest and accurate in recording that he was sick, but that based on his own admissions that would not be the case because he said in fact that he was not sick. Mr Pollard supposed that he was trying to justify why he took that decision. Mr Pollard also tried to establish who the roster clerk was that advised Mr Brar, but was unable to get that information. Mr Brar also did not tell him who the roster clerk was. 200Mr Pollard acknowledged that in the interview Mr Brar said that you were allowed to take six days off a year as casual sick days - that was his interpretation. He agreed that he did not conduct any sort of investigation into whether or not there was such a practice. He was aware of the usual reasons for taking sick leave, and it was every employee's responsibility to be aware of their conditions and the Code, and if they wished to take a day off and they were not sick then there was annual leave for that purpose. 201During his oral evidence Mr Brar was also taken relevantly to the CCTV footage. 202Mr Brar denied that either he or his friends had been involved in any earlier interaction with Police on platform 16/17 prior to the interaction shown on the CCTV footage. 203At the commencement of the relevant CCTV footage he maintained that he had pulled out his ticket to show a friend. He had then gone to have a look at the indicator board because there had just been an announcement made on platform 17 and usually trains went to Milsons Point from platform 16 but sometimes used platform 17 for special events and he was just walking around to check whether the train was going from platform 17. That train that had just arrived (as shown in the footage) and he said he was just going to check the indicator board. He couldn't see the indicator board because of the awning (shown as being above the top of the adjacent stairs). He maintained that he had no vision of the Police, had no idea they were walking towards them, was not aware of them up on the platform, and the first he became aware of them was when someone grabbed him from behind. He didn't know who grabbed him and it was a shock to him. 204When the Police Officer grabbed him by the hand he was more than willing to speak to her. He was asked what he was doing and he said he was going to look at the indicator board and was pointing in that direction. That was when the Transit Officer asked for his ticket, he cooperated fully at this stage, was not swearing, reached into his pocket for his pass and was then asked why he had an employee pass and said he was a Train Driver that was why he had a pass. They exchanged words about why he was there, they didn't want to listen to him and were just picking on him, picking on him. His reaction was why would he be fighting there, it was like, his workplace. They were picking on him because they had dragged him aside, asked for his ID which he'd given, and he was accused of all these things. He was told they were going to arrest him and he was "like you can't arrest me I haven't done anything wrong". He heard the word "drugs" and sort of took offence to that, and swore, and just said it in a general sentence. 205The Police and Transit Officers chose to question him and surround him in an intimidating manner and kept saying "I will arrest you" and when he questioned the reason they had no answers and went on to tell him to shut up. 206He denied the claim he that he was unable to put together a sentence (as reported in the Police Facts Sheet) as the statement went on to say "I'm a fucking rail corp train driver, you cunts, leave me alone. That was clearly a sentence and he believed this statement was contradictory and not true. 207He agreed that he was arguing with Police but said he was not being aggressive, he was not threatening them physically, just arguing the point. He denied spitting at anyone and if he had he was sure he would have been charged with something. He believed the claims made by Ms Edmonds were false as he was clearly only speaking to Office Dwyer in the CCTV footage at all times. 208When he was down on the Concourse he cooperated and sat down, he was not being unreasonable or irrational, he wasn't being restrained and they were clearly comfortable with him sitting down. When he got up to be taken to the Police Station he didn't have handcuffs on. 209He maintained that he was unlawfully detained. Using abusive language in public was an on-the-spot fine, not something you could be arrested for. He considered this behaviour was circumstantial as he was frustrated with the way Police were treating him like a criminal. At the time Police started to questioning him he had not broken any laws and the Police provoked him, which led to his actions. 210When the RailCorp Managers came to the Police Station he recognised them and they were talking to the Police and they basically asked what was going on. he couldn't leave the Station as the Police had his mobile, his pass and his drivers licence. He denied abusing anyone or targeting anyone in the Police Station, but said he may have used some swear words and probably the F-word but not at anyone in particular. 211Mr Griffin asked him general questions and sort of started to mentor him but he didn't want his advice and Mr Griffin didn't understand that and Mr Brar got angry with him because he wouldn't leave, he'd had enough, he couldn't help him and he was not at work and didn't have to listen to him. 212He didn't ask any RailCorp persons to come to the Police Station, they came down on their own behalf. They had no right to be there as this was a personal matter and had nothing to do with his managers who he dealt with when he was on duty. He denied Mr Griffin's claims that he was under the influence of some substance. he also denied that Mr Griffin could have smelt alcohol on him saying he wore perfume. As a RailCorp employee he followed the zero drugs and alcohol policy, had never failed a drug and alcohol test when tested and passed the targeted drug tests that subsequently had to sit. 213Mr Brar stated that he was an adult yet the Police wouldn't let him leave the station when the paperwork was issued and made his father drive to the Police Station from Campbelltown and then let him leave. 214He maintained there was no issue with the phone number. They didn't get it off his mobile because he didn't have it on there as he knew his father's phone number. He gave them the right number and they couldn't get through because it was near 12pm at night and peak time with text messages etc. 215He maintained that later, before he went to Court, when his lawyer viewed the CCTV footage the Police crossed out the first 3 paragraphs because they realised they had made a mistake and that was what went to court and he was told he should only have got a fine and was let off with a Section 10 and no fees. 216He had returned to work the next day at 3pm for his shift, worked his shift as normal and was breath tested. 217He was not under the influence of alcohol or drugs at the time of the incident. He had been drinking at lunch time but had stopped drinking around 3 or 4pm. He had been subsequently randomly tested in January 2011 and target tested about 6 times. He had never failed an alcohol or drug test. 218He didn't get to start at Campbelltown until 4 December and was on a 6 week training program on the roads out there because he was not qualified for them anymore which would have taken him through to the second week of January working 8am to 4pm weekdays. He only found out that he was rostered to work New Year's Eve on the 23 December. He spoke to Paul Briggs and told him he wasn't qualified on everything but was told he was being put on because they were short. He told him he had plans. Mr Briggs rang the roster clerk while he was there and tried to swap it but it was too short a notice. He put in for annual leave but was told he wouldn't approve it and he became frustrated and before he walked out he said - so his option was go sick - and that was the last time he spoke to Mr Briggs. 219Mr Brar stated that he called rosters and informed them that he would not be attending work on 31 December as the rostered shift had a 20:00 hours start which meant his sleeping pattern would be out of order and he would be fatigued. RailCorp policy stated that a driver must not come to work fatigued as it may lead to an incident while performing your duties. He went on to clarify in oral evidence that in the past he had been given a shift like this, said it wasn't right and was totally ignored by the Depot Manager who said it was legal. He actually fell asleep at the wheel doing a similar shift and was taken off the road for suspicion of sleep apnoea until he was cleared by a sleeping doctor. 220He was asked to fill out an application for leave form by the OSM who told him they hadn't received any paperwork. It was the same OSM who was on duty when he was drug tested earlier in January who knew what had happened on 31 December because everyone knew and came up to him the next day and told him they'd heard about what happened last night. He was unsure of what type of leave was to be claimed so he wrote "note claiming casual sick day" on the form. When he asked the approving manager whether this was correct, he said yes and approved it with his signature on the form. 221He believed his explanation about the sick leave was misunderstood. He accepted that he may have made a mistake, but not out of dishonesty. He had never knowingly made false claims in the past and if he had been told his leave claim was false he would have been happily taken other leave or unpaid leave but was never informed of this or given the chance to correct this mistake. 222During the extensive cross examination of Mr Brar he was taken to various documentation, including the Record of Interview and written responses to RailCorp letters. 223In cross examination Mr Brar acknowledged that he was aware of his responsibilities under the Code of Conduct for acceptable behaviour, acting in the best interests of Railcorp, and maintaining and promoting high levels of acceptable behaviour. He also acknowledged that he received a travel pass at the same time each year and signed an Employee Declaration. He was taken to the Declaration he had signed in 2010 and acknowledged that he was aware of its provisions, but said he never actually read the part that referred to breaches of those conditions could result in disciplinary action including dismissal. 224He was transferred to Campbelltown at his own request, but it took some time to come through. He essentially indicated he didn't know where he would be, was told by the Roster Clerk at InterCity Central that if he was still there he could have New Year's Eve off but would work Christmas Day. He anticipated that at Campbelltown as a senior driver he would have been on the master roster which would mean he would know what he was doing for the next six months. Once he was at Campbelltown the Roster Clerk at InterCity had no control over him and there was no point in calling him. He was aware his name was Paul but was not asked for his name at the interview. 225He disagreed that he could have put in a leave application once he knew he had been formally transferred to Campbelltown and had bought the New Year's Eve function ticket as they didn't know where he was going to be. He went to the Depot Manager's office who told him there was no point in filling out a form as they didn't know where he would be. He didn't seek approval from the manager at Campbelltown because when he got there on 4 December he knew he would be on a training roster for six weeks and knew he would be okay to travel on the night of New Year's Eve and would not be working New Year's day as it was a Saturday. He maintained the rosters would show who was working and there would be a standby driver who could he agreed could be anyone. 226He agreed that Mr Briggs tried to change the day for him when he went to see him on the 23 December and that he did not tell him why he wanted it changed - he said he didn't have to. 227He maintained that there was a big conversation with Mr Briggs about being taken off the roster without notice, not being trained, no OSMs to train him so he was being taken off the roster and put back on in January, He queried why he was on the roster if he wasn't trained and was told he'd be on standby and if he got used, he got used. Mr Briggs said it was legal. Mr Brar indicated in evidence that he was qualified for the Campbelltown yard which meant he could take a train in the yard which saved time if a driver was running late. However he did not consider that the cover was required operationally. 228He agreed that he did not tell Mr Briggs that he would be fatigued on that shift as it was Mr Briggs who had pulled him off the road for sleep apnoea before at Campbelltown, so he knew the history. He had not drawn it to anyone's attention because it was there in RailCorp's paperwork concerning a SPAD (Signal Passed in Danger). 229Mr Brar said that it was also his decision as to whether he was fatigued, not Mr Briggs'. He did not raise the issue of fatigue in the disciplinary proceedings because he was not asked. 230When it was put to him that he had opportunities of responding to the allegations (concerning the sick leave), he replied that he responded to Mr Pollard's allegations and said that "every time I responded to something another allegation came out of it, so you were trying to frame me from the beginning." 231He also said in response to not mentioning the issue of the sleep apnoea as a relevant concern, that he didn't reply because he believed RailCorp were treating him unfairly. 232On the issue of being sick he said he gave 24 hours' notice, which was plenty of notice. He was also ultimately asked the following: Q. Mr Brar, are you telling us in your evidence today that on 31 December you were in some way sick, ill, fatigued, unfit for duty? A. yes. Q. In what way? A. I wasn't mentally prepared to go to work. 233He also said that he wrote what he did in the Application for Leave form was because he was unsure of the process and did not write that he was unsure of what to claim because there was no column to write that in. 234In response to a later questions as to his justification for going sick, he clarified that he did not get "advice" from a roster clerk about going, sick it was just "general conversation". He then went on to respond: A. No. I went sick because I wasn't mentally prepared to go to work on New Year's Eve, and you can't tell me - I just didn't - if I'm not happy to go to work, why would I go to work to cause an accident." 235He denied giving different reasons at various stages for going sick (with those detailed to him) saying that: No one sat down and asked me every single reason for going sick. There was a lot of reasons, there wasn't just one reason. But depending on the conversation I had with each person, there was a different reason. No one sat down and said to me give me all the points of you going sick. 236He also didn't believe that he had a number of opportunities throughout the process to put his best case forward as he was accused of something, and there was no way RailCorp helped him in any way, or gave him any counselling, or offered him to better himself from a mistake he made on New Year's Eve. All that was done was he was put under stress, and let work for six months after this incident and then given a dismissal letter. 237Mr Brar was taken to the Record of Interview and his responses in some detail concerning the issue of swearing (and when, and it what circumstances it occurred) and denied that during the disciplinary process he had not acknowledged swearing to the extent that he had now in evidence. 238Whilst he agreed that he used the "F" and "C" words, he maintained he had not used them in a sentence but did agree that he used offensive language. He maintained that what was said by the Transit Officers was contradictory both as to what he said and that he couldn't put a sentence together. He acknowledged that he could not remember the exact sentences he said because of how fast it was all happening. 239He also said he had not gone to the Police Station to breach the Code of Conduct. The Police caused him to behave the way he did. If it was in his control and his control only as an employee, he wouldn't be sitting here. It was because of circumstances that happened which were out of his control. 240Mr Brar agreed that he used offensive language to the Police but did not believe that his actions were not in the best interests of RailCorp as he was being treated as an individual , he wasn't being treated as a RailCorp employee at the time. he didn't have the uniform on and he wasn't at work. 241He said he was asked his occupation at RailCorp and told them he was a Train Driver, he wasn't able to identify himself as a Train Driver because the rail pass and licence were not enough apparently. He denied saying he "was a fucking train driver". He was arguing the point that he was working at RailCorp but no-one believed him. As the CCTV footage showed he started to get frustrated because what he was saying wasn't being listened to. He agreed that he told the Police Officer more than once that he was a Train Driver, and to him in was in a normal tone, but it was quite loud on the platform. He maintained that he had no choice but to identify himself as a Train Driver. 242Mr Brar was also taken through the CCTV footage. He essentially denied that he was leaning in towards the Police Officer at any stage and maintained that, to him, it was just arguing the point. He was not threatening anyone, he was just trying to prove his innocence, no one was listening to him, he repeated himself a million times but no one listened. 243He did not agree that he was aggressive toward the Police and said that if he had been he would have been charged with that. 244In relation to saying in his evidence in chief that he found the situation on the platform stressful and it made him angry etc., he acknowledged that as a Train Driver he faced stressful situations but said that all those situations were under his control. This was not under his control. 245When asked whether he way he responded and the fact that he swore and used offensive language was beyond his control, he said that it was his reaction to the way he was being treated. It was brought on by something someone said to him and "when you lose your cool, you lose your cool. 246He denied always reacting that way when he "lost his cool" and he had never had any issues at work where he had actually sworn at someone. 247He maintained that when the Police approached him he found them intimidating, because there were three or four people in terms of Police and Transit Officers hanging around him, as opposed to just one person talking to him, which was very intimidating. 248Mr Brar said that he did not think he was in danger of breaching the RailCorp Code of Conduct, nor was he thinking about the fine print of the Declaration when he was being "confronted" by the Police. His main concern was the false allegations. He also indicated that at no point was he restrained by Police for lashing out at anyone nor did he lash out at the Police. He was also not warned by Police for the way he was moving or anything like that. 249He also indicated that while he was both at Central, and then at Campbelltown that he was confident that he was not going to be rostered on New Year's Eve. The reason he was confident about the situation at Campbelltown was because he was going to be on the training roster for six weeks. 250He further clarified what he meant by not being mentally prepared to go to work that shift in the following exchange: A. I wasn't in the right mindset. Like it requires a high level of concentration when you go to work for - to have concentration, one, you've got to get plenty of sleep, you've got to be alert and such things. So changing my times around from doing 8am to 8pm would've affected that, one. Two, in the back of my mind didn't want to be there and New Year's Eve because I was - I wasn't going to be working New Year's Eve. Q. Mr Brar, you've said you weren't in the right mindset and you didn't go to work. I put it to you that quite often people don't want to go to work. What's different about a train driver, why should a train driver not go to work if they simply don't want to be there? A. Because they can kill someone. 251He maintained that he did not deny swearing but that he was not in breach of the Code of Conduct because he was not at work and not in uniform. Findings 252This 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 Brar. 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. 253Mr Brar disputes the misconduct findings made by RailCorp and its decision to dismiss him from his employment. The Board's function in this matter is to determine firstly, whether misconduct as alleged took place and secondly, to determine whether the disciplinary punishment imposed by RailCorp in relation to such misconduct findings is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. The Board is obliged to determine the disputed issues before it on the civil standard of proof, that is, the balance of probabilities. The Board is also obliged to approach the matter in a manner consistent with the principles enunciated in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. 254The Board has very carefully considered all the oral and written evidence of the parties, the extensive written submissions and the relevant case law. In particular, the available CCTV footage has been repeatedly viewed (well in excess of a dozen times) at both normal and slowed speeds and paused at relevant times. That viewing has been either on a PC or laptop and the smaller screen has in fact provided the Board with much clearer definition than was apparent on the large screen viewed at some distance on the two hearing days. 255At the outset it should be indicated that the Board found the RailCorp witnesses to who gave evidence at the hearing to be witnesses of truth. Any minor inconsistencies or contradictions as between their evidence can be largely attributed to the different perspectives witnesses may have from each other of the same incidents, particularly where, as in this appeal, those incidents happened not only very quickly but where the witnesses were not simply always standing in the background observing but were involved in varying, and differing, ways and therefore focused on the incidents from their differing perspectives. 256As a consequence of the procedures for appeals before the Transport Appeal Boards Mr Brar had the benefit of hearing all the oral evidence of the RailCorp witnesses before giving his evidence and therefore his evidence was overwhelmingly responsive to that evidence and there were changes and additions (which were then unable to be tested) to information which he had previously given in his accounts of the incidents that took place on the 31 January 2010. 257The Board also has to observe that the demeanour of Mr Brar throughout his evidence, and in particular the cross examination, was that he had a marked tendency on occasions to be somewhat argumentative and to challenge, rather than provide responses to the questions posed. He came across as a person with what could only be termed, using the colloquial expression, as having a "chip on his shoulder". That obviously may well have arisen as a result of his perception of what he considers to have been an "unlawful arrest" by Police and unfair treatment by RailCorp, indeed he appears to believe that RailCorp were out to get him from the start. The Board however could find no evidence of this and no possible motive in relation to a Train Driver who had apparently previously had 7 years unblemished and unremarkable (meaning the absence of any particular issues of note) service. 258That Mr Brar appears to have issues with anger management (that may well not have manifested themselves in the workplace) is abundantly clear from the events of the 31 January 2010 and his behaviour and reactions, which on any interpretation or view were not those of an average reasonable man. 259There is insufficient evidence before the Board to establish whether or not Mr Brar was in fact involved in the earlier incident on platform 17 that was observed by the two RailCorp Transit Officers when they were across on Platform 18 in response to an unrelated incident. Both they and the Police were however clearly of that view when they made down and across to platform 17. It was that belief, together with Mr Brar's action in walking towards the Police when he was grabbed and wrestled away by his Asian friend, that resulted in the Police intervening, firstly to break up what they saw as a struggle between two men and secondly, questioning of Mr Brar about that and the earlier incident they had observed further up the platform. 260Here is where Mr Brar has given two versions of his reason for breaking away from his friends (to whom he was apparently showing a ticket to the function at Luna Park) located near the top of the stairs. There was another set of stairs further up the platform not visible in the CCTV footage and it was by those stairs that the Transit Officers and Police had accessed the platform. 261Mr Brar in the disciplinary interview said that he was going up to the OSM's office (up where the lift was) to see who was working there because a couple of them were his friends. In oral evidence he said he was going to check the indicator board in case the train on platform 17 was going to Milsons Point, explaining that trains usually went from platform 16 but on special events might also go from platform 17. That is quite a substantial difference in explanation. He maintained that he was not aware of the Police coming and could not see them commencing to come down the platform (notwithstanding that apart from the railings surrounding the top of the stairs there did not appear to be anything obstructing a clear view through those railings). Be that as it may, once he moved around to walk up the platform alongside the railings at that point two Police Officers (one in front of the other) were walking in his direction along the platform. Indeed it is very clear from the CCTV Footage that if his Asian friend had not grabbed him and pulled him around he would have literally walked right into the first Police Officer, he was extremely close to him on the footage and had made no move to avoid him. He did not appear to be looking upwards as might be expected if he was looking up at an indicator board (granted that there was no evidence as to how much further up the platform that board was located). When he is grabbed he resists and tries to break away and is pulled around. Just at the point of being grabbed he raises his right arm in a forward motion appearing to try to point towards the Police (it is accepted he could be trying to shrug off the person who has grabbed him). It does appear however that this arm movement is being made in the direction of the Police in a pointing motion and a split second before he is grabbed. The Board accepts that it is Mr Brar's evidence which is accepted that at this point he did not know who was grabbing him. But when he is grabbed hold of and pulled back towards his friends (right back to their location) he appears to keep trying to go back in the direction of the Police who have now loomed large. 262The Board has also noted in viewing the Asian male's actions throughout very closely, it is abundantly clear that at the start of the footage when Mr Brar is showing his ticket and they are all talking together that, this Asian male is holding a triangular glass (or possible tall square shaped) bottle with a pale cream/white screw top lid and a black and white/cream marked label down one side containing less than a quarter of amber coloured liquid. It is definitely not a bottle of water. He holds up the bottle, takes a drink from it and then screws the lid back on. He is still holding the bottle in his left hand when he follows Mr Brar and grabs him (mainly with his right arm around Mr Brar's body) and his left hand is still holding the bottle over Mr Brar's shoulder. It is also very clear that when the Asian male is subsequently talking to one of the Police Officers and standing behind Mr Brar during the exchanges he has with the Police or even when he approaches and places his hand on his Mr Brar's right shoulder (the calming down action referred to in RailCorp's evidence, an interpretation shared by, and open to the Board) he has moved his left arm behind his back and down to hold the bottle just below the top of his pants where it is out of sight. When he goes to follow the Police and Mr Brar down the stairs he turns and hand the bottle to another of the females in the group (not the person who approaches and touches Mr Brar) before leaving the platform. 263There is certainly the possibility that this bottle contains alcohol. However it is accepted that there is no evidence before the Board to substantiate this, nor is there any comment or evidence from Ms Holmes with whom he catches up on the landing going down the stairs and is shown speaking to when they reach the bottom of the stairs together and emerge into the corridor leading to the Concourse area. The Asian male at all times appears steady on his feet. 264There is also no mention of this (any issue of alcohol in relation to the Asian male) in the Police Facts Sheet and it can clearly be seen that down in the Concourse area one of the male Police Officers (in a blue vest) has a quite lengthy face to face conversation with this person (over 11/2 minutes) after the male approaches to speak to the female Officer with his left hand pointing at her. The male Officer pulls the Asian male to one side and listens as he appears to explain something to him using various gestures, the Officer then gives him a slight push and commences speaking to him also using numerous gestures (pointing a number of times towards Mr Brar's location on the floor, to the Asian male, to himself, with closed hand and index finger pointing towards the male, flat hand out in a downward motion towards him), all actions which appear to be of an admonishing/cautionary nature. Another female Officer is also standing with them. The male Officer turns to go towards Mr Brar's location and has to turn back to the Asian male and speak to him again using hand gestures. This same male Police Officer is one of the two Officers who takes hold of Mr Brar to escort him to the Police Station with the Asian male attempting to follow by his side and the Officer pushes him away. The Asian male continues to follow shortly behind the first group leading Mr Brar away. 265It is also clear that at the top of the stairs before Mr Brar is removed from the platform the Asian male does turn to speak to Ms Edmonds and may well have been endeavouring to verbally intercede to stop Mr Brar from being taken away both there and down at the Concourse in his interaction with the Police. 266Unfortunately this vision from the CCTV footage (the Asian male and the bottle) was either not picked up by RailCorp or not noticed and thus not referred to in any way and thus no questions were able to be directed to Mr Brar as to any relevant knowledge he may have had about this issue. That failure is understandable given that the focus has principally been on the actions of Mr Brar during the incident on the platform. 267This leads the Board also back to a consideration of the incident on the platform, what subsequently transpired down on the Concourse, and at the Police Station. 268Having very carefully considered the relevant footage together with the relevant evidence, and the weight of the evidence, the Board is of the opinion that there is absolutely no doubt that Mr Brar has sworn and used very offensive language directed at both the Police and the Transit Officers and done so repeatedly. There is also no doubt that it was Mr Brar who repeatedly identified himself as a RailCorp driver, far beyond what may have been required or necessary to establish his right to have a RailCorp travel pass, and did so in an extremely offensive and aggressive manner. 269It is very clear to the Board that Mr Brar is moving slightly backwards and forwards (the female Police Officer clearly appears to sway slightly back at one point as his body moves forward), his head is often thrust forward, his face is grimacing and his mouth appears at points to be moving in a wide open way showing teeth (in a way that would not occur in normal conversation)giving an appearance of anger and being very wound up. 270While he is mainly being spoken to throughout by the female Officer, there are two points during the exchange where two other male Officers come in on the left hand side and quite clearly are admonishing/cautioning Mr Brar in some way. 271The first occasion is shortly after the exchange commences and Mr Brar has shown his ticket or licence to Ms Holmes and a male Officer (in a police cap) with his right hand and index finger pointing leans in towards Mr Brar and makes several pointing gestures towards him and then turns and moves away. Later a second group of Police come up the platform to stand initially at the back observing. A tall Officer (in a police hat) also moves forward and approaches on the left and holds out his left hand and moves it up and down at Mr Brar in a clearly admonishing/cautionary manner part way through the exchange and prior to a particularly aggressive action by Mr Brar towards the female Police officer. 272The aggressive action referred to above can be clearly seen when Mr Brar facing the female Officer holds up the pass in his right hand and makes a very clear and aggressive stabbing motion towards her, leaning forward (and speaking with his lips drawn back from his mouth and his teeth showing), with his index finger pointing out at her. He then turns his body slightly side-on, holds the pass in his right hand and points to it (and touching it) with his left hand in an emphatic action. He then turns back front on and goes to initiate the stabbing motion again and it is at this stage that the Police quite suddenly move in, take hold of his arms, turn him around and take him from the platform. 273The Board considers that the actions of these two male Police Officers would support and confirm the reference in the NSW Police Facts Sheet to Mr Brar being warned "in relation to the offensive language he was using". 274The Board finds that Mr Bra's demeanour and actions during this exchange with the Police to be aggressive, and coupled with the offensive language and swearing that was directed at the Police and Transit Officers it is no wonder that the Police took the action they did to restrain him and remove him from the platform, place him under arrest and charge him with an offence under the Summary Offences Act. 275It is also very clear to the Board that during the incident the dark-haired female does place her hand on Mr Brar's chest and then his lower arm in what is clearly a placatory or calming down gesture/manner which again supports that his actions/language were not a reasonable response in the circumstances. 276There was also reference during the exchange on the platform by Ms Edmonds to Mr Brar spitting at the female Officer. The Board accepts that there was no intention on Mr Brar's part to spit at her. However during the footage, just seconds before Ms Edmonds makes that accusation to him and points across his shoulder towards the Officer, that officer can be seen to move her left hand up and across in front of what would be her face (her back is to the camera). This may simply be the result of Mr Brar by accident releasing saliva in a forward motion as can sometimes be case when a person is speaking quickly, or with animation, or is worked up in some way. The Board makes no adverse finding against Mr Brar but by the same token does not consider Ms Edmonds is exaggerating the situation. 277The Board finds nothing untoward in the action of Ms Edmonds in taking the travel pass when it is given to her by the Police down on the Concourse (it appears to be the female Police Officer who spoke to him on the platform although that is only very partially shown) and going to the TCAC office to check whether Mr Brar was indeed a current RailCorp Train driver. Given the behaviour and language he had exhibited, which is clearly totally out of character for any RailCorp employee (even if that person is not in uniform) and particularly given where this incident was taking place the Board does not find it unreasonable for Ms Edmonds to go and make appropriate enquiries and seek confirming information. Ms Edmonds did not know Mr Brar and had had no previous dealings with him. There is nothing sinister in her actions. Nor did her actions contribute in any way to the situation in which Mr Brar by his words and actions had placed himself. 278Similarly it is accepted by the Board that the incident was of sufficient note that it required reporting to the SSC by Ms Holmes as it would have even in the event that Mr Brar was not a RailCorp employee. Given the nature of the incident it was not unreasonable for Mr Pearce to also advise the various RailCorp managers he did at the time and subsequently. 279The CCTV footage also clearly shows that both in the corridor where the stairs from the platforms lead to, and the Concourse area, that there are indeed small children and older children accompanying parents/family groups as well as two children in prams. Thus the concern expressed by RailCorp witnesses and noted by the Police as to the presence of families was fully justified. 280Similarly the Board finds nothing untoward, or sinister, or unusual, in Mr Griffin and Mr Pearce coming down to the Concourse area to see what was going on after Mr Griffin had been told a RailCorp driver was being arrested. Indeed they would have been rightly criticised if they did not come to check the situation out to ensure that one of their employees was not in some sort of trouble with Police and in need of assistance. 281They both stood away at some distance, did not interfere, merely observed and left when, as Mr Griffin said, it was obvious Mr Brar was not on duty and the situation was under the control of the Police. Their actions were entirely appropriate. 282Both men returned to their duties where they would have no doubt remained but for the message Mr Griffin subsequently received (via a third party) that he was required at the Eddy Avenue Police Station. He quite naturally again took Mr Pearce given his position (that was explained), he did not know for what purpose he was required, but the Board does not consider that it would have been at all appropriate for Mr Griffin to have just not gone and refused the request that had been made of him. The Police are after all at a Station adjacent to the railway (indeed within the overall structure that comprises Central Station but on the Eddy Avenue street front) The Police involved were from the Rail Vandalism Task Force which operates in conjunction/cooperation with RailCorp and its staff. He was not being asked to go away to some other Police Station in the City. 283It is also clear from the evidence of Mr Griffin, Mr Pearce and the NSW Police Facts Sheet that Mr Griffin was requested to attend for the dual purpose of confirming Mr Brar was a RailCorp Train Driver, and, more significantly, to try to calm him down. The evidence of both Mr Griffin and Mr Pearce make it quite plain that this kind of assistance was requested on more that one occasion whilst they were at the Station. Further it was also made plain to Mr Griffin, who attempted unsuccessfully to get this through to Mr Brar, that the Police were not going to release him until he had calmed down and that if he did not the consequences could become more severe (being taken to the 'docks'). 284The Board acknowledges that neither Mr Griffin or Mr Pearce had any work duty or obligation to be there, apart from their very natural and quite commendable concern for a RailCorp employee in trouble with the Police. They rendered what assistance they could. Whilst Mr Brar may not have requested their presence the Board accepts their evidence that he did not asked them to leave or tell them to go away. 285The Board finds it disappointing in the extreme (as must RailCorp) that the RTBU and Mr Brar have sought to criticise these two quite exemplary managers for their actions and so called interference. The Board strongly rejects any suggestion that their actions in any way caused/contributed to Mr Brar's predicament or the Allegations he subsequently faced. 286The Board is firmly of the opinion that Mr Brar caused his own problems by his completely uncalled for, unreasonable, and unacceptable behaviour and his use of extremely offensive language (including the words "fucking" and "cunts") on a railway station in a very public place (and subsequently his unacceptable behaviour and continued abuse at the Police Station). 287Indeed the Board has no doubt whatsoever that had those two managers not become involved in the way that they did at the Police Station then the situation would in all likelihood have ended up with even graver consequences for Mr Brar. It is unfortunate that Mr Brar does not appreciate that. 288Mr Brar complained in his evidence that he was an adult and yet the Police made his father come from Campbelltown to get him. The Board would observe that perhaps if Mr Brar had behaved as an adult should in a reasonable and rational manner without resorting to swearing and offensive language then he might have not been in the Police Station in the first place, or may have released a lot sooner. 289The Board agrees with the RailCorp witnesses that the Police in fact showed admirable restraint in the face of what was extremely offensive language directed at them and quite irrational and over the top reactions from Mr Brar. The Board can see no provocation or intimidation in their actions at any stage. At the beginning of the incident the Police moved to pull off what they obviously saw as someone attacking or grabbing another person inappropriately. The female Police Officer took hold of Mr Brar's lower right arm to lead him to one side for the purpose of speaking to him. They were surrounding him initially at that stage (three Police Officers and the two Transit Officers) but they give him space and allow the female Officer to conduct the questioning (with the intervention of the male Officer as referred to above), Ms Holmes initially participates in being handed the pass/licence then stands back, another group of Police come along (three) but stand back except for the second intervention by the second male Officer as referred to above. 290The footage down on the Concourse area does not show any untoward or provocative action by the Police. 291At the commencement of the incident on the Platform Mr Brar can clearly be seen pointing back towards the northern end of the platform and pointing to himself and is obviously making an explanation of some sort in response to Police questions. 292The Board emphasises that all Mr Brar had to do is what any rational, reasonable person would do in such a situation, and that is answer the questions posed to him, and if the Police were mistaken in the assumptions they had made, then explain what had, or had not happened in a civil way, using a civil and polite tone, civil and polite language and without swearing and using offensive words. If he did not believe his explanation was being listened to there was still no call for the language and abuse he directed at the Police (and the Transit Officers). 293It is quite understandable to the Board that it was thought by those present and involved during that night that Mr Brar was either under the influence of alcohol or some other substance. The Board concedes that the evidence is somewhat contradictory as to slurring, his demeanour and his physical appearance and there is no firm evidence that he was under the influence of alcohol. It is accepted that the strong smell of spirits Mr Griffin detected later at the Police Station can be explained by Mr Brar's perfume, as he said. However given Mr Brar's behaviour and language which was quite irrational and unreasonable and went on for some time (including at the Police Station) the conclusions drawn by those present were not in the circumstances unreasonable. Indeed absent Mr Brar being affected by alcohol, and absent any Police provocation or untoward actions there would appear to be no good reason for him to react in the way he did and let loose the language that he used. 294As far as the issue of Mr Brar being off duty, not in uniform and therefore it is out of hours conduct not covered by RailCorp's Code of Conduct and hence he would not be guilty of Allegation One, that is not accepted by the Board. 295The Board was referred to he relevant case law. The issue of out of hours conduct was recently considered by the Board as currently constituted (but sitting as the Industrial Commission) in Silling. However any case raising the issue of misconduct arising in out of hours conduct must be considered on its own facts when applying the relevant principles such as those traversed in Rose and other such cases. 296In this appeal there are the following very relevant facts that the Board has taken into consideration in determining whether there is the requisite connection between Mr Brar's out of hours conduct and his employment relationship with RailCorp: The incident took place on a RailCorp railway station, A RailCorp railway station is very much Mr Brar's usual place of work, He had also been a Train Driver based at, and operating out of Central Station, It was a public place, The incident took place on the busiest night of the year for RailCorp's rail operations, There were numerous members of the public present including families groups and children, Mr Brar on repeated occasions advertised in a loud manner that he was a RailCorp Train Driver, The offensive language was directed at Police who are not just Police from outside suburban locations but members of the Rail Graffiti Task Force who work in conjunction/cooperation with RailCorp and carry out duties on RailCorp property, RailCorp Transit Officers were present, RailCorp managers were present at later stages, and Mr Brar was using his RailCorp Travel Pass with which to travel and the use of such pass came with conditions that Mr Brar had accepted and agreed to as recently as 25 June 2010. 297The Board considers that the use of the RailCorp Travel pass and the conditions attached to it is a factor of critical significance and clearly distinguishes the conduct of Mr Brar when compared to the facts in the relevant cases cited. The Board notes in that respect that the 'Annual Employee Declaration', as signed by Mr Brar on the 25 June 2010, very relevantly states as follows (Exhibit 1-N): 1 Employee Travel Pass Declaration Employee Passes are a valuable benefit to staff. Security of the Employee Pass is your personal responsibility. Allowing other people to use your Employee Pass is fraud and can result in dismissal. Do not loan your pass to anyone, or let other people access your pass - it's not worth the risk. When you travel using your Employee Pass, you are an ambassador for RailCorp. When using your pass you must always uphold the values and professional standards outlined in the RailCorp Code of Conduct or other relevant Codes and the Customer Service Commitment/Charter (emphasis added). 298RailCorp employees need to be very mindful, at all times, of their conduct when using such a pass to access RailCorp stations and travel on its trains whilst off duty or travelling to and from work. 299The Board should hasten to add that the other factors listed above are not insignificant and also collectively serve to distinguish this appeal from the cases cited. There is no doubt that if a similar situation had occurred say at Luna Park requiring the intervention of on-site Security Officers and Police (and even possible Police charges) then notwithstanding that Mr Brar arrived by train using a RailCorp Travel pass it would not have been out of hours conduct that would have warranted or justified any disciplinary action being initiated by Railcorp. 300The Board is satisfied that, applying the relevant cases, and given the factors listed above, the requisite connection linking Mr Brar's out of hours conduct to his employment relationship with RailCorp is established giving rise to the allegations and findings RailCorp have made. 301The Board therefore finds that Mr Brar is guilty of the breaches of the RailCorp Code of Conduct contained in Allegation One and Allegation One is sustained. 302As to the remaining two Allegations it is obvious that those allegations in all likelihood would have never seen the light of day and he would have essentially got away with not attending his rostered shift, claiming sick leave without any consequences, but for the incident at Central Station. Even if it had come to light subsequently, absent Allegation One it would only have merited probably a counselling or warning at most. 303However any employee who choses to use a sick day for private purposes when they are not in fact sick and gets caught can expect that there may adverse disciplinary consequences if found out depending on the circumstances. 304The Board accepts that it is the responsibility of RailCorp employees to determine whether they are too fatigued to attend work, particularly so in the case of a Train Driver, due to the dire consequences that can result. A similar situation applies to being free of alcohol and unaffected by drugs at work and for the same reasons. However the Board has some difficulty accepting the reasons proffered by Mr Brar for the fact that he considered that at 3.15pm on Thursday 30 December 2010, that he would be unfit to attend the shift he was rostered for at 8pm on Friday 31 December 2010, notwithstanding the late introduction into his evidence of the previous sleep apnoea incident. He had after all been on 8am to 4 pm training shifts Monday to Friday for the previous four weeks. 305Given the Board's considerable knowledge of continuous rotating roster patterns in general, gained over many years, and some knowledge of RailCorp rostering practices, the Board would have considered that shift pattern to be the least demanding one available and a switch to an 8pm shift the following night not an unduly onerous request. That is if course excluding any consideration of whether or not Mr Brar could in fact be fully utilised due to his unfinished training on all the relevant Campbelltown roads. 306However the fact of the matter is that Mr Brar made assumptions that he would be free from duty on New Year's Eve and did not take appropriate action to make sure he would not be rostered for any work once he had bought his ticket to the function. The obligation was on him to do so. It is appreciated that there were logistical issues as to where he would in fact be located at that time, but he could not just leave it to the last minute when he found he was rostered on New Year's Eve. He could have taken action at least as from 4 December when he was relocated to Campbelltown. 307In any event it is abundantly clear that the reality is that Mr Brar's " frame of mind" as referred to in his evidence was that he wanted to go to the function, made up his mind to go to the function come what may, and any possibility that he would be prevented from going by having to work an unexpected shift and thus he not in the right frame of mind to drive a train seems to be taking that concept to the extreme. 308On balance the Board finds that Allegations Two and Three are sustained but of themselves do not warrant the disciplinary penalty of dismissal. 309The Board has thought long and hard about the appropriate penalty for the misconduct that Mr Brar has committed and is very mindful of Mr Brar's length of unblemished service and the consequences flowing from a dismissal from RailCorp for a person who holds a position as a Train Driver with skills not readily transferable to outside employment. Consequences that have been referred to in other decisions of the Board as currently constituted (see Walters v RailCorp [2012] NSWTAB 3). 310However it is of concern Mr Brar has consistently blamed others for his situation and the consequences of his actions and has not accepted any responsibility for his totally unacceptable conduct and offensive language. 311As this Board has previously observed in s.84 unfair dismissal cases unblemished service of a reasonable length can be a two edged sword. Whilst it is certainly a factor to take into account in mitigation it also imposes additional expectations of appropriate conduct and behaviour and knowledge of an employer's relevant policies and codes of conduct. 312Having considered all of the evidence and the submissions the Board considers that the language used by Mr Brar was particularly offensive, entirely unwarranted, as was his behaviour and in all of the relevant circumstances was out of hours conduct with a sufficient connection to Mr Brar's employment relationship with RailCorp to establish that his conduct breached the Code of Conduct and did so in such a serious way as to be entitled to be considered misconduct for which the appropriate disciplinary penalty is dismissal from his position as a Train Driver. Intervention by the Board in the decision taken by RailCorp is not warranted. 313The Board therefore issues the following order. Order(s) The appeal of Jasdeep Brar against the decision of RailCorp to dismiss him for his position of Train Driver is disallowed. 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: 22 March 2012