Deuter v RailCorp [2012] NSWTAB 11

Transport Appeal Boards New South Wales Medium Neutral Citation: Deuter v RailCorp [2012] NSWTAB 11 Hearing dates: 13 February 2012 Decision date: 05 April 2012 Before: Bishop C (Board) Decision: Appeal allowed - orders issued. Catchwords: PUBLIC SERVICE - discipline - rail employee - breaches of Code of Conduct -inappropriate language used towards another employee - appeal to Transport Appeal Board - HELD - lengthy service with only a minor issue previously raised - provocation from other employee involving racial vilification - penalty too harsh in all circumstances - appeal allowed - alternative penalty imposed. Legislation Cited: Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Category: Principal judgment Parties: Jade Deuter (Appellant) Rail Corporation of NSW (Respondent) File Number(s): TAB 1277 of 2011

DECISION

Introduction 1Mr Deuter commenced employment with RailCorp on 12 February 1990 as a Station Assistant Class 1, was promoted to a Customer Service Attendant (CSA) Grade 2 in 1998 and transferred to the position of CSA in 2009 when the CSA Grade 2 position classification was deemed obsolete. He currently remains in the CSA position. 2On 22 September 2011 Mr Deuter was notified by RailCorp that he was to be reprimanded and suspended without pay for three consecutive working days, for breaches of RailCorp's Code of Conduct as a result of an incident which took place on 12 November 2010. 3On 30 September 2011 Mr Deuter lodged an appeal in respect of his suspension to the Transport Appeals Board. In his Notice of Appeal he indicated a plea of 'not guilty' to the allegation made by RailCorp. 4The matter was listed for disciplinary conciliation before Commissioner Connor on 28 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 13 February 2012.