Transport Appeal Boards New South Wales Medium Neutral Citation: Shane Thompson and RailCorp (No 2) [2012] NSWTAB 8 Decision date: 23 March 2012 Before: Macdonald C (Board) Decision: Catchwords: PUBLIC SERVICE - RailCorp The Transport Appeal Board handed down a Decision on 25 November 2011 concerning appeal by Shayne Thompson against his dismissal by RailCorp - The Board declined his reinstatement application -Thr Board issued an Order that RailCorp issue Thompson with his work certificates - subsequently, RailCorp issued these certificates but added its own notation to those work certificates - the notation had the effect of preventing Thompson from working on RailCorp property - Inion relisted the file before the Board - RailCorp submitted the was functus officio - Board considered views of the union and RailCorp - Board issued Statement Legislation Cited: Transport Appeal Boards Act 1980 Cases Cited: Allchin v Commissioner of Police (2009)NSWIRComm 113 Bailey v Marinoff (1971) 125 CLR 529 Ex parte Hassell And Others; Re Quirk And Anor (1937) SR 192 Graziers Association of New South Wales v Australian Legion of Ex - Servicement and Women (1949) 49 SR 3 Hollingingsworth v Industrial Court of NSW & Anor (2007) NSWCA 209 Surfing Hardware International Holdings Pty Limited and Ors v William McCausland and Anor (no 6) (2007) NSWIRC Comm 285 Category: Procedural and other rulings Parties: Shayne Thompson (Appellant) RailCorp Corporation of NSW (Respondent) Representation: Mr B Edghill, union official Rail, Tram and Bus Union (Appellant) Mr S Jauncey , solicitor (Respondent) File Number(s): TAB 1063 of 2011 STATEMENT 1On 25 November 2011, I handed down a Decision in my capacity as the Transport Appeal Board ("the Board"). That Decision arose out of an appeal by Mr Shayne Thompson ("the appellant") in respect of his dismissal by the Rail Corporation of NSW ("RailCorp"/"the respondent"). 2That Decision rejected the applicant's primary remedy of reinstatement. However, the Board granted the alternate relief sought: "ORDER 44. RailCorp is to provide to the appellant his Certificate of Competency and Rail Industry Safety Induction Certificate, within seven (7) days of the date of this Decision". 3Subsequently, the Board received correspondence dated 9 January 2012, from the Rail Train and Bus Union ("the union") concerning the above Order. The union had represented Shayne Thompson in the disciplinary appeal proceeding before myself. The union's correspondence advised that the certificates referred to in my Order had been provided to the appellant, but the certificates had been altered by RailCorp. That is, the certificates were marked "Not for use on RailCorp property". The union submitted that by altering the certificates with the aforesaid wording, RailCorp had not complied with my Order of 25 November 2011. 4The effect of altering the certificates is that it severely restricts the appellant's ability to gain future employment in the industry, was the union's contention which was supported by information contained in the correspondence where it was stated in the letter that the appellant had been rejected for working with a company that is a supplier of RailCorp. 5The union's correspondence sought the assistance of the Board to ensure that RailCorp provided certificates to the appellant but without any additional commentary or endorsement by RailCorp. 6The file was relisted for Mention on 13 January 2012. Mr B Edghill, from the union (and author of the union's correspondence to the Board), appeared on behalf of Mr Thompson. RailCorp was represented by Mr S Jauncey, solicitor. Appearing with him was Ms M Robinson of RailCorp who was the advocate for RailCorp in the appeal proceedings before myself. 7Mr Jauncey, on behalf of RailCorp, respectfully submitted that the Board had no jurisdiction to deal with the union's sought after remedy of re-issuing the certificates but without any additional commentary or endorsement. This was because, Mr Jauncey said, the Board was functus officio and therefore had no power to re-open the Order which stood in the terms it was made. Mr. Jauncey referred the Board to cases on this functus officio submission. 8Mr Jauncey also stated that the union had only sought an order going to the provision of the work certificates - if the primary remedy of reinstatement was unsuccessful. That is, he pointed out that the union had not as well sought an order to overturn a RailCorp determination that the appellant's personnel file was to be marked as not suitable for rehire in any capacity, including but not limited to as labour hire, contractor or consultant. 9The union was not aware that RailCorp would be represented by a solicitor and unaware of the case law submission on functus officio. The union was given the opportunity to consider its position and respond, if required, on another listing date. 10The file was relisted for Further Mention on 9 February 2012. The union provided the Board with correspondence dated 8 February, which had been provided to Mr Jauncey on the evening of 8 February. 11The union's correspondence was spoken to by Mr Edghill, who advised that the union was not seeking to amend the Order made by myself on 25 November 2011 in that he believed that the Order was clear in its terms. He said that RailCorp had failed to comply with my Order. In not giving effect to my Decision of 25 November 2011, RailCorp was in breach of section 100C(4) of the Industrial Relations Act 1996 (the 1996 Act). The latter Act was enlivened in the matter now before the Board pursuant to section 11(2) of the Transport Appeal Boards Act 1980. Mr Edghill further submitted that RailCorp, in not complying with the terms of the Board's Decision, was in contempt of the Commission (the Industrial Relations Commission of NSW). Section 164 of the 1996 Act deals with the issue of contempt. Pursuant to Rule 18.11(2) of the Industrial Relations Commission Rules 2009, the Commission was requested to direct the Industrial Registrar to commence proceedings for contempt against RailCorp. 12Mr Jauncey said that the issue of contempt was not only a new issue being raised by the union but also a serious one. He advised that the issue of contempt could not be dealt with by the Board because only the Industrial Relations Court had the power to do so, pursuant to section 164 (2) and (3) of the 1996 Act. Mr Jauncey cited a case on the issue of contempt: In that respect the Board accepts that Rule 18.11 makes clear that an allegation that a person is guilty of contempt of the Commission may only proceed before the Industrial Court (my emphasis). I make no finding as to whether the Board as constituted would fall within the definition of the Commission under either the Industrial Relations Act or the Rules. 13Mr Jauncey reiterated that the Board did not have the power to consider the union's sought after relief because of the Board was functus officio. 14The Board raised two questions for Mr Jauncey's consideration arising out of his submissions of 13 January 2012, on behalf of his client, RailCorp. 15The first question went to that submission where Mr Jauncey said, "the Order stands in the terms made and is to be interpreted in light of the order made, and the context of the decision" (underlining added) (Tr 6, line 14 to 16) The Board drew Mr Jauncey's attention to paragraphs 41, 42 and 43 of the Decision of 25 November 2011. He was asked to comment on the content of these three paragraphs and the issue of interpreting my Orders given the context of those paragraphs to the Order. 16Those three paragraphs consider the appellant's submission that the Board order RailCorp to provide him with his work certificates so that "... he could continue working in the rail industry, as this industry is the only trade in which he is skilled". This submission was made in the event he was unsuccessful in obtaining the primary remedy sought, that of reinstatement. 17The Decision records that RailCorp opposed the granting of that remedy because the appellant's breaches of RailCorp's Codes showed that the appellant had disrespect for RailCorp's safety and legal obligations. 18The Decision then records that the Board rejected RailCorp's submission and determined, based on the evidence and submissions, to order that RailCorp hand over the work certificates to the appellant. 19Mr Jauncey read the three paragraphs in question and answered the Board's query as to having regard to these three paragraphs, on the basis of giving context to my Order, and responded that my Order was clear on its face and a consideration of the context of that Order was not required. 20Mr Edghill for the union, responded that when the Board issued its Order for the provision of those work certificates, the Board did not order that those certificates be marked up with the additional wording inserted by RailCorp ("Not for use on RailCorp property"). 21The second question went to Mr Jauncey's reference to the appellant's dismissal letter, which said in part that RailCorp had made a determination that the appellant's file was to be marked as not suitable for rehire in any capacity, including but not limited to as labour hire, contractor or consultant. 22The Board put a scenario to Mr Jauncey for his comment. The scenario went to a different outcome in the appeal proceedings before myself. Thus, if the Board had of ordered the reinstatement of the appellant, would RailCorp have ignored that reinstatement order because RailCorp had already determined (as part of the dismissal process) that the appellant was not suitable to work for RailCorp? Mr Jauncey responded that RailCorp would comply with the Board's reinstatement order if that had of been the outcome of the Board's deliberations. CONCLUSION 23The Board relisted this file following a written request by the union to do so. The union asserted in that correspondence of 9 January 2012, that RailCorp had not complied with my Order of 25 November 2011. 24The file was listed on 13 January and 9 February 2012 and the Board heard submissions from both parties. 25Mr Jauncey for RailCorp submitted that RailCorp had not been in breach of the Board's Order of 25 November 2011. That is, the union had sought, as an alternative remedy, an order that was in fact granted by the Board. The union did not put forward an order seeking to have RailCorp revoke its determination, set out in the dismissal letter, that the appellant's file was to be "marked as not suitable for re-hire in any capacity, including (but not limited to) as labour hire, contractor or consultant". (Ex 6, Annex E) 26There are some observations to be made about Mr Jauncey's submission on behalf of RailCorp. 27I have formed a view that RailCorp is in breach of the Board's Order of 25 November 2011. That Order, in the context of the evidence and submission made, required RailCorp to provide certain named work certificates to the appellant. Those work certificates were issued but RailCorp amended the work certificates by inserting the words, to the effect, "Not for use on RailCorp property". As was pointed out by the union, the terms of my Order did not include a requirement that those words be marked on the work certificates. 28Further, there was no submission from RailCorp, in final submissions of the substantive hearing of 16 September 2011, that if the Board agreed to make an Order, requiring the return of the work certificates to the appellant, then such Order should include that those work certificates be amended to read, "Not for use on RailCorp property". 29RailCorp's position about the return of the work certificates, was one of total opposition. However, RailCorp did not submit, on 16 September 2011, that if the Board was inclined to grant that sought after Order, then the Order should be amended with the addition of "Not for use on RailCorp property". It is apparent to the Board, that if RailCorp had submitted or sought that amended wording, then the union (and the Board) would have been alerted that such amended wording would have invalidated the effective operation of the Order. That much is clear because of the appellant's motive in seeking the Order for the return of the work certificates. Thus, the union submitted on 16 September 2011, that without the work certificates, the appellant will be "...unable to work in any capacity for anyone who does work on RailCorp property. His skill set is limited and even more limited when you take out the capacity to work on publicly owned railways within the state. His skills as a signals mechanical are not transferable to other industry. RailCorp hold all his qualifications and certificates and will not allow him to obtain Rail Industry Safety qualifications that he requires to work in the corridor". (Tr p37 line 44 to p38, line 6), 30In these proceedings it is clear, from the submissions made by the parties to the Board, that should the appellant not be reinstated he sought that he be provided with his Certificate of Competency and Rail Industry Safety Induction Certificate, within seven (7) days of the date of any order to that effect so that he may continue to earn a livelihood. 31What is also clear is that the Board specifically rejected the argument of RailCorp that this not occur and made such an Order for the reasons as more fully set out in paragraph 43 of the judgment of the Board of 16 September 2011. 32It is implicit in that finding that the Board envisaged that such work certificates would be issued by RailCorp without any alteration, endorsement or other caveat so that the appellant would be free to earn a livelihood. 33It would appear to the Board that the endorsement by RailCorp on the work certificates of the words as earlier alluded to is in direct contradiction to the intention of the Board in making the Order. 34Mr Jauncey for RailCorp, put a submission to the Board that it could not vary the Order made on 25 November 2011, because of the operation of the doctrine, functus officio. I note the general rule known as the doctrine of functus officio is that "when an arbitrator or judicial officer has given his award or adjudication, as the case may be, he is functus officio, and cannot add to, amend, or detract from what he has done": Ex Parte Hassell (1937) 37SR 192 at 195. That doctrine is not relevant in these proceedings as will become apparent below. 35The Board believes that it is entitled to amend its Order to reflect the actual intention of the Board, particularly in circumstances where RailCorp has unilaterally imposed its own view as to the intention and effect of the Orders of the Board. However, should there be some doubt in relation to that aspect, then the Board makes the following notes as set out below. 36Under Schedule 1 to the Uniform Civil Procedure Rules 2005, Part 36 of those Rules has application to the Industrial Relations Commission and are Rules available to the Commission under Part 7 of Chapter 2 of the Industrial Relations Act 1996 and, therefore, are available under section 11(2) of the Transport appeal Boards Act 1980. 37Rule 36.17 is in the following terms: "If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error." 38This provision is what is commonly called the Slip Rule. 39I am satisfied that the Slip Rule may be used to carry into effect the actual intention of the Board making the order and ensuring that the order did not have a consequence which the Board clearly intended to avoid. On that basis and pursuant to Rule 36.17, I amend the Order that I made on 16 September 2011 so that it now reads: "RailCorp is to provide to the appellant his Certificate of Competency and Rail Industry Safety Induction Certificate, within seven (7) days of the date of this Decision without any annotation, endorsement or caveat that would preclude the appellant from working on RailCorp property." A Macdonald 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: 26 March 2012