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. Background and Chronology 5On the 12 November 2010 an incident occurred between CSA Dean Mitchell and Mr Deuter in the Station Manager's office at Museum Station. Station Manager (SM) Samir Hassan and CSAs Stewart Drury and Kini Rayawa were present at the time of the incident. 6Following the incident both Mr Mitchell and Mr Deuter made reports to SM Hassan. CSA Mitchell alleged that Mr Deuter said to him "Hello fat boy", struck him on the left side of the jaw and kept coming at him until SM Hassan intervened. He alleged that Mr Deuter then approached him in the garrison and said words to the effect of "You son of a whore, no matter what happens I've got your address and I'm going to get you and you house". 7Mr Deuter alleged that Mr Mitchell put two fingers above his upper lip and raised his arm in a Nazi salute, referring to Mr Deuter's German surname and called him a "fucking German Hitler." He stated that Mr Mitchell "postured his chest in an aggressive stance" and moved towards him, causing Mr Deuter's gesturing hand to make contact with Mr Mitchell's neck and chest. 8The matter was referred to the RailCorp Investigation Unit (RUI) for investigation of the incident and Mr Deuter's and Mr Mitchell's respective allegations against each other. 9Mr Stephen Hanna, an RUI Investigator, conducted a disciplinary investigation, obtaining the signed written response made by Mr Deuter to SM Hassan and an unsigned memorandum from Mr Mitchell to SM Hassan (Exhibit 1-7 & 8). He interviewed Mr Mitchell on 29 November 2010 and took a statement from him (Exhibit 1-9). He also obtained the contemporaneous notes made by SM Hassan, CSAs Drury and Rayawa (Exhibit 1-11,13, &15), as well as statements from each of them (Exhibit 1- 12,14 & 16). 10On 11 January 2011, Mr Hanna forwarded a letter to Mr Deuter notifying him of the following allegation that he had breached the Code (Exhibit1-2): Allegation On 12 November 2010, you breached the RailCorp Code of Conduct by engaging in unacceptable behaviour. Particulars of this allegation are as follows: a)On Friday to November 2010, at approximately 6 am in the station managers (sic) office at Museum Station, used discriminatory language to its Customer Service Attendant Dean Mitchell saying to him, "Hello fat boy." b)Immediately after this, during the course of a verbal exchange, Mr Deuter assaulted Customer Service Attendant Dean Mitchell by striking him to the left side of his jaw. c)A short time later, Mr Deuter approached Customer Service Attendant Dean Mitchell who was seated in the garrison next to the entry/exit gates at Museum Station, and said to him "You son of a whore, no matter what happens I've got your address and I'm going to get you, and your house." 11Mr Deuter was invited to provided a written response to the allegation within 14 days which he did by letter dated 16 February 2011 (Exhibit 1-3). He declined Mr Hanna's invitation to attend a disciplinary interview. In his written response he denied striking CSA Mitchell and stated that the argument was started by CSA Mitchell's "antics". He claimed that CSA Mitchell had given a Nazi salute upon entering the SM's office and that he had previously objected to this on other occasions. He admitted to reacting to this by saying "What's up fat boy?", an argument ensued where he walked towards CSA Mitchell leaving about a metre between them and that CSA Mitchell moved towards him "in an aggressive stance and postured his chest" coming into contact with Mr Deuter's. He claimed that he put his hand into a "stop motion" but CSA Mitchell proceeded to drive his upper chest area into his hand. He denied telling CSA Mitchell he had his address, but stated that he told him "it should have never got to this Dean, you don't know when enough is enough". He also referred to his original statement to SM Hassan in which he claimed that CSA Mitchell's behaviour in general had been a problem, accused him of being "passive aggressive", engaging in racially motivated blatant verbal abuse, examples of which were calling him a "German dog", and saying, "I heard you have Dago in you", amongst other racist statements, and claimed that he had confronted CSA Mitchell about this behaviour. 12Mr Hanna also obtained a copy of Mr Mitchell's report to the NSW Police made on the 12 November 2010 (Exhibit 1-17) in which he claimed that Mr Deuter struck him on the right side of the face, causing immediate pain to the left side of his face. Mr Hanna confirmed in his statement (Exhibit 1-2) that Mr Mitchell did not ask the Police to take any formal action regarding the alleged assault, nor did he tell Police about the alleged incident that had taken place in the garrison, (paragraph c) of the allegation). 13On the 24 February 2011 Mr Hanna wrote to Mr Deuter inviting him to attend a disciplinary interview (Exhibit 1-4), however Mr Deuter declined this invitation (Exhibit 1-5). 14On the 18 April the following allegations were also put to Mr Mitchell (Exhibit1): Allegation One During your rostered shift on 12 November 2010, you treated your work colleague CSA Jade Deuter disrespectfully. Particulars of this allegation are as follows: a)About 6:00am in the Statiion Manager's office of Museum Station, you put two fingers to your lips and directed a "Nazi" style salute towards CSA Deuter. b)During a subsequent verbal exchange, you called CSA Deuter; "a fucking German Hitler". Allegation Two You provided false and/or misleading information to RailCorp, that CSA Jade Deuter hit you on the left side of your jaw during your rostered shift on 12 November 2010. Particulars of this allegation are as follows: a)Following an incident which occurred about 6:00am in the Station Manager's office of Museum Station, you provided a Memorandum dated 12 November 2010 to SM Sam Hassan, wherein you recorded that CSA Deuter struck you on the left side of the jaw. b)On 29 November 2010, you provided a statement to RailCorp Investigator Mr Neil Wilbin, wherein you recorded that at approximately 6:00am in the Station Manager's office of Museum Station, CSA Deuter struck you on the left side of your jaw. 15At the conclusion of the investigation into the allegations against Mr Mitchell it was found that, Allegation One c) was not substantiated but Allegation One b) and Allegation Two a) and b) were substantiated. 16It should be noted that RailCorp emphasised in its written case that allegations were generally treated confidentially and only disclosed to another employee if necessary. In this appeal the details of the allegations against Mr Mitchell were provided to the Board in order that the Board might have a full and complete understanding of the investigation process, and the appropriateness of the penalty imposed on Mr Deuter. 17The investigation into the allegation against Mr Deuter resulted in findings that the allegation was substantiated, but only with respect to particular a). On the 11 July 2011 Mr Hanna's Investigation Report was forwarded to the Disciplinary Review Panel (DRP) which reviewed the evidence and on 1 August 2010 made a preliminary recommendation that Mr Deuter should be reprimanded, given a final warning, suspended for one week and receive training in the Dignity and Respect in the Workplace Policy, and counselling in his obligations under the Code of Conduct. 18On 9 August 2011, Mr Rino Matarazzo, General Manager, Customer Service CityRail CBD, wrote to Mr Deuter advising of the preliminary recommendation as to penalty and providing 14 days in which to make submissions in regard to the penalty and submit any further information or material that he might wish to have taken into account (Exhibit 1-5). 19Mr Deuter provided a written response on 17 August 2011 (Exhibit 1-6) in which, inter alia, he stated that he did not say "Hello fat boy" but did say "What's up fat boy" which was said in reaction to what CSA Mitchell had said; again referred to CSA Mitchell's inappropriate comments about his heritage; said that he had tried to talk to CSA Mitchell about his racial comments but had not reported him to the Station Manager; and stated that the only things he had done were not immediately informing his manager about what was happening and reacting to CSA Mitchell with his "fat boy" comment. 20On 24 August 2011 Mr Hanna reviewed Mr Deuter's response noting that he had raised Mr Mitchell's alleged inappropriate comments in his initial response, but that there was no evidence to support his assertions as he had not raised these issues with management. Mr Hanna noted that this created a difficult situation and that he should be reminded to report such alleged breaches in future. He found that Mr Deuter had not provided any new information to warrant further investigation (Exhibit 1-D). 21On 5 September 2011 the DRP considered the matter, confirmed the recommendation of suspension, but reduced the penalty to 3 consecutive working days. This was confirmed by Mr Matarazzo in writing on 6 September 2011 (and acknowledged by Mr Deuter on 22 August 2011). Mr Deuter was also issued with a final warning, and is to receive training in the Dignity and Respect in the Workplace Policy and counselling as to his obligations under the Code of Conduct (Exhibit 1-D). 22The relevant provisions of both the Railcorp Code of Conduct and the Dignity and Respect in the Workplace Procedure were also set out in Exhibit 1-F & G. Issue(s) 23Mr Deuter pleaded not guilty to the allegations and sought that the penalty be set aside. It is therefore the Board's task to determine whether the allegation against Mr Deuter is sustained, and if so, the appropriate penalty to be imposed in all the relevant circumstances. Respondent's and Appellant's Cases 24RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. 25RailCorp referred the Board to the relevant provisions of the RailCorp Code of Conduct (under the heading of '2. Acceptable behaviour and responsibilities') and submitted that by calling CSA Mitchell "fat boy", Mr Deuter breached the Code by failing to do the following: Act in the best interests of RailCorp, Maintain and promote high levels of acceptable behaviour, Carry out his duties carefully and fairly, Treat colleagues fairly, consistently and with respect. 26The Board was also referred to the relevant sections of the Dignity and Respect in the Workplace Procedure (under the headings of '1.1 Purpose, 3. Responsibilities' and '4. Our Obligations') and it was submitted that by Mr Deuter calling Mr Mitchell "fat boy", he failed to comply with the Code and the Procedure, to treat Mr Mitchell with dignity and respect at work, and to think about how his behaviour, specifically making reference to Mr Mitchell's weight, may impact Mr Mitchell and/or others present. 27It was submitted that whilst Mr Deuter had entered a 'not guilty' plea in these proceedings he had admitted to having used the words "fat boy" to Mr Mitchell, which was a material aspect of the allegation - the use of inappropriate language to Mr Mitchell constituting unacceptable behaviour in the workplace. On this basis it was submitted that the Board could consider Mr Deuter to be guilty of unacceptable behaviour in the workplace and that the allegation had been fully substantiated. 28RailCorp's position, based on evidence obtained in the course of the investigation, was that Mr Deuter and Mr Mitchell were equally at fault in the incident, and equally failed to treat each other with respect required of RailCorp employees towards their colleagues. 29Mr Deuter claimed that his comment to Mr Mitchell was brought about by the behaviour of Mr Mitchell towards him, specifically a Nazi salute. The allegation about the Nazi salute was put to Mr Mitchell and was not substantiated. The evidence did not assist in a determination of how the incident started, or who was the instigator of the verbal exchange, but it was clear that Mr Mitchell and Mr Deuter engaged in name-calling and that the name Mr Deuter called Mr Mitchell made reference to his weight. 30RailCorp submitted that each witness to the incident gave a slightly different version of events and went on to summarise those versions. There was consensus that Mr Mitchell said words to the effect of "German Hitler" and that Mr Deuter made reference to Mr Mitchell being "fat". Mr Deuter corroborated this evidence with his admission that he used the words "fat boy" but the evidence did not assist to determine the exact phrase he used. It was noted that the allegation that he said "hello fat boy" (which was alleged by Mr Mitchell) was of a less offensive nature than both CSAs Drury and Rayawa's recollection that his words were "fucking fat cunt". Whichever account was accepted by the Board it was submitted that Mr Deuter's reference to Mr Mitchell's weight was of itself inappropriate. 31Mr Deuter had raised allegations against Mr Mitchell that his inappropriate behaviour had been ongoing prior to the incident on 12 November 2010. As Mr Hanna noted he did not raise these allegations with his manager at any time, and only raised them in his defence once the allegation was put to him about his own inappropriate behaviour. Whilst he referred to specific incidents and suggested possible witnesses to these alleged previous incidents, it would have been appropriate to investigate these complaints had they been made at the time the behaviour occur. However it was not considered sufficient mitigation for him to accuse Mr Mitchell of appropriate and provocative behaviour in hindsight after he had behaved inappropriately towards Mr Mitchell as well. 32RailCorp considered that the penalty of suspension without pay for three consecutive working days was appropriate. The penalty originally recommended as appropriate to Mr Deuter's breach of the Code was suspension without pay for one working week. In consideration of the responses made by both Mr Deuter and Mr Mitchell to the preliminary recommendation, the recommended penalty was reduced to suspension without pay for three consecutive working days for each employee. 33It was RailCorp's position that both Mr Deuter and Mr Mitchell failed to treat each other with them dignity and respect in the workplace and that Mr Deuter's comment "Hello fat boy" appropriately attracted a disciplinary penalty as it constituted a breach of the code of conduct. 34Further, despite his breaches of his obligations under the Code Mr Deuter had lodged this appeal and failed to acknowledge any wrongdoing on his own part. It was submitted that the penalty of suspension without pay for the three consecutive working days was necessary to demonstrate to him that his conduct was an unacceptable breach of the Code. 35Railcorp rejected the submissions of the RTBU on behalf of Mr Deuter seeking to provide mitigation for his actions in saying to Mr Mitchell "What's up fat boy" by claiming that Mr Mitchell had been making "smart comments" towards him for the previous two months and that he had asked him to stop making such comments on three occasions relying on the evidence of both Mr Mitchell and SM Hassan. 36It was submitted that there was no evidence, other than Mr Deuter's claims made after the incident, that there were any previous problems between the two CSA's. Mr Deuter's reliance on his claims as mitigation for his behaviour must be viewed in light of the evidence of Mr Mitchell and Mr Hassan (and noting that Mr Mitchell also received the same penalty for his involvement in the incident) which contradicted Mr Deuter's claims. 37Mr Deuter in his evidence had sought to paint Mr Mitchell as the villain in the scenario but it was submitted that the Board should take into account Mr Mitchell's actions on the day in question. After the incident he immediately wrote up his recollection of the incident and handed it into the Station Manager. Mr Hassan did state that he had received this. Due to the threat that he believed he had received from Mr Deuter, Mr Mitchell then went and reported this matter to the Police. This was despite his belief that until that day he and Mr Deuter were okay, that they were friends and that there were no previous issues. 38It was submitted that Mr Mitchell reported the threat he had received from Mr Deuter immediately in his written memorandum to SM Hassan and also reported the matter to the Police. It was further submitted that the Note by the investigator Mr Hanna concerning the conversation with the Police in which did not indicate that Mr Mitchell had reported any threat made by Mr Deuter on 12 November was made on 29 June 2011 and it was submitted that it most likely would have been based on the Officer's recollection of the content of the Police report made by Mr Mitchell which did not contain any information about threats made. It was Mr Mitchell's evidence that at the time Police told him that they could not record that threat as it was a conversation between the two of them, and they simply recorded the witnessed incident in the Station Manager's office. 39It was also submitted that the accusation of Mr Mitchell making a Nazi salute when he entered the Station Manager's office was not seen by the other three people in the room, was put to Mr Mitchell, and found not substantiated by RailCorp. 40It was submitted that Mr Deuter had exaggerated the incident to make his part in the incident sound less serious and had attempted to allege that he was provoked over a period of time into calling Mr Mitchell "fat boy". Mr Deuter in evidence had described Mr Mitchell's comment as "fucking German Hitler", however there was no other evidence to substantiate that the word "fucking" was used by Mr Mitchell. Mr Deuter had also given evidence about previous incidents involving Mr Mitchell's behaviour towards himself however there was no evidence to support those allegations and he had not reported it to his Manager. 41The Board could only make a decision with respect to the appropriateness of the penalty issue to Mr Deuter based on the evidence, which consisted of the witness evidence of those people who were present in the room at the time of the incident on 12 November 2010. Further, the reasons Mr Deuter had given for putting up with the previous complaints he had about Mr Mitchell were manufactured after the event, nonsensical and should not be accepted by the Board. 42Mr Deuter claimed in his statement that in 20 years he had not been involved in any disciplinary matters. However his employment records showed that he was counselled in 1998 for excessive casual absences. 43In relation to penalty RailCorp noted that Mr Deuter sought an alternative penalty of counselling and formal warning for his actions. These will be imposed upon him regardless of the outcome of his appeal and he was notified of this in RailCorp's letter of 6 September 2011. 44It was submitted that in the circumstances the Board should not alter the decision of RailCorp. 45The RTBU submitted that Mr Deuter had been employed by RailCorp since 1990 and had a good record. He was counselled in 1998 for sick days, however this should have been removed from his record if he had not been counselled again in the following 12 months. 46The RTBU referred to the evidence and submitted that Mr Mitchell's evidence was inconsistent with that of Mr Deuter, SM Hassan and CSA Drury. Mr Deuter agreed that Mr Mitchell had been harassing him for about 2 months before the incident in the SM's office at Museum on 12 November 2010. He had been called a 'German dog' by Mr Mitchell in the presence of RailCorp passengers and was also told he was wearing his Gestapo or SS uniform when he wore his German soccer track suit to work. A number of other comments made by Mr Mitchell to Mr Deuter were racially motivated. After being told to stop making the comments Mr Mitchell would do so for a period of time, but then start again. 47The RTBU referred to SM Hassan's evidence as to what he heard Mr Deuter say to Mr Mitchell and Mr Mitchell's reply. SM Hassan then separated the two men and had to ask Mr Mitchell to leave the office twice. He did not see Mr Deuter strike Mr Mitchell and had immediately looked up at both of them when he heard the comments made by them to each other. Mr Mitchell also did not tell him that Mr Deuter had threatened him as he would have recorded that. 48CSA Drury also confirmed in his evidence that he heard Mr Mitchell say to 'German Hitler' to Mr Deuter. CSA Drury also said that he had some work issues with Mr Mitchell regarding the Booking Office and also at Town Hall Station where Mr Mitchell refused to be briefed about the working at Town Hall. 49It was also submitted that Mr Mitchell's evidence about making a report to the Police about the incident and Mr Deuter striking him, but not reporting that he threatened him and advising them that that he did not want to take any action, was not credible. If an assault was reported to the Police they took all the evidence provided, if there was a threat made after an assault that was a serious matter and for any Police officer not to report it would be a concern for the Police. Mr Mitchell's evidence was not credible. He said he told SM Hassan on the day that Mr Deuter had threatened him, and SM Hassan said that did not happen as he would have recorded that. It was a Station Manager's role to record anything reported to them and something like a threat to a person was a serious matter. Mr Mitchell also said in his evidence that he was struck by Mr Deuter and was knocking his hands away but Mr Hassan's evidence was that did not happen. 50It was also submitted that if Mr Mitchell was concerned with his safety he had to be directed twice by his Station Manager to leave the area. He wasn't worried about Mr Deuter, he was also engaging by walking into Mr Deuter who had his hand pointing at Mr Mitchell. There was no assault of Mr Mitchell and that was accepted by RailCorp. Mr Mitchell's evidence was not credible, he had not been honest and had denied the racial taunts towards Mr Deuter. There were no witnesses only members of the public who did not raise anything. 51It was submitted that Mr Deuter had been honest in both RailCorp's investigation and in giving evidence to the Board. He had tried to resolve his problems at work by talking to Mr Mitchell and believed it would work, but Mr Mitchell continued with his racial taunts and Mr Deuter reacted. He had admitted that he did not manage his situation properly and should have reported it to his Manager. 52It was submitted that the penalty of three day's suspension was harsh and that RailCorp's decision to suspend Mr Deuter for three days without pay should be set aside and the penalty should be counselling and a formal warning. Evidence 53RailCorp's evidence before the Board was contained the Investigation Report (attached to Mr Hanna's (Exhibit 1-2A) and other Annexures (B to G) which included, inter alia, the various letters exchanged concerning the Allegations; relevant memos and emails; the written responses of Mr Deuter and Mr Mitchell; handwritten responses of CSA's Drury and Rayawa to SM Hassan; Mr Deuter's Ellipse Personal History Report; NSW Police Incident Report; correspondence exchanged concerning the outcome of the disciplinary process; and Statements from the following RailCorp employees who were present during the incident on 12 November 2010: Dean Mitchell ....Customer Service Attendant (Exhibit 1-A9), Samir Hassan ...Station Manager (Exhibit 1-A12), Kini Rayawa......Customer Service Attendant (Exhibit 1-A16), Stewart Drury.....Customer Service Attendant (Exhibit 1-A14.) 54Mr Mitchell, Mr Hassan and Mr Drury gave oral evidence before the Board. 55Mr Hassan had been Station Manager at Museum Station since September 2010 and during that time, and the incident in his office on 12 November 2010, had not witnessed, nor been aware of, any friction between Mr Deuter and Mr Mitchell, in fact he thought they got on well as they had a common interest in the NFL. Likewise he had never witnessed any slandering or harassing or bullying between staff members. 56 He related in both his written statement, and oral evidence, that at around 6:00am on 12 November he was sitting behind the desk in his office and talking to CSA Rayawa, CSA Drury was also in the room. CSA Mitchell came in to sign on for his shift and CSA Deuter was in the office signing off on completion of his night shift. After CSA Mitchell greeted staff he heard an exchange of words between the two men, he did not see CSA Mitchell make any gestures, but said he would not have witnessed that. He only indicated that he heard CSA Deuter say something along the lines of "hello fat boy", but the words "fat boy" were only said once. He heard CSA Mitchell say something like "okay Hitler" or "hello Hitler". That was when he basically looked up and saw CSA Deuter turn around and either accidentally push or push CSA Mitchell. He did not see CSA Deuter hit CSA Mitchell. He then sort of got in the middle of them, separated them and asked CSA Mitchell to leave the room. He had to ask him to do this twice. He then sat CSA Deuter down, explained that what had happened was a breach of the Code, there would be an investigation, and asked for a statement. He subsequently did the same with CSA Mitchell who also told him his version of events. CSA Mitchell did mention something about going to the Police but not why. He referred him to the EAP and was told that he contacted them at least twice that day. CSA Mitchell did not tell him that he had been threatened. CSA Deuter had not complained to him before about racist comments from CSA Mitchell, and CSA Mitchell had not made complaints about CSA Deuter. 57In his oral evidence Mr Hassan indicated that he was writing at his desk at the time when Mr Mitchell entered, did not see any gestures, only heard "fat boy" used once which was when he looked up, did not see any punching or slapping at Mr Mitchell and doubted there would have been enough time for that before he started to make his way towards the two men. he also said that if he had been given Mr Mitchell's memorandum he would have read it through and documented it with the other email he sent to Mr Desiderio (the accounts of CSAs Drury and Rawaya). 58Both CSA Drury and CSA Rawaya gave similar written accounts of a longer and more detailed exchange between the two men which generally had CSA Mitchell calling CSA Deuter a "German Hitler" to which he responded to the effect of "you've got a fucking big mouth", CSA Mitchell asking what was his problem, CSA Deuter saying it was a racist remark and going on to say "you fucking fat cunt", They both reported that they then saw SM Hassan standing between them and telling them to calm down. Their accounts were written on the same day and provided to SM Hassan 59Mr Drury had worked with Mr Deuter for about 9 years at Museum Station and said he had never heard him speak like that to any staff member, he had never had a problem with him and he treated staff with respect. Mr Deuter had not mentioned any incidents with Mr Mitchell to him but Mr Drury had not long returned to the sector having been acting up as a Duty manager. He maintained he had had problems with Mr Mitchell (telling him how to do his job and questioning the way he worked). He had had not heard Mr Mitchell make racist comments but had observed him giving the Asian people a "hard time" at the barrier, he had not heard comments but it was his attitude towards them and his mannerism. 60Mr Mitchell has been with RailCorp for almost five and a half years. In his written response to Mr Hanna during the investigation he denied directing a Nazi salute at Mr Deuter as this was contrary to his religious beliefs. He acknowledged that he asked Mr Deuter if he was "Hitler" in response to being called "fat boy" time and time again when he had asked him not to, and voiced his disapproval. His reason for using the term "Hitler" was because Hitler was famous for his beliefs in the 'perfect human' and for Mr Deuter to be so worried and insistent on his weight to such a point as to be persecuting and bullying him was no different to this belief of Hitler's. 61He acknowledged that Mr Deuter had never referred to his weight before but he made several comments and the tone he was using in the 'goading' led to his belief that Mr Deuter had a similar belief to Hitler. 62Mr Mitchell stated that since commencing at Museum Station he had never had any problems with Mr Deuter and before this incident he would have called him a workmate, nor was there any friction between them. He did become aware of Mr Deuter's German heritage. He denied making any of the comments as alleged by Mr Deuter and said he had never been asked by him to stop making comments. 63He acknowledged that he had called out to Mr Deuter across the platforms but said that he had not made the comment to him about the German Shepherd dog. 64He maintained that when he walked in to SM Hassan's office on 12 November 2010 he gave a general greeting to everyone, could not remember what he said, but it was friendly. He heard Mr Deuter say in a loud voice "hello fat boy", asked SM Hassan if he had heard it, but he said he didn't, and they both laughed as if it was a joke. During the signing on process and briefing Mr Deuter called him "fat boy" again, which he considered was 'menacing' and had gone beyond a joke so he told him he didn't appreciate it, could not remember exactly what he said, but he called him "fat boy" again (he maintained that Mr Deuter called him "fat boy" three or four times in all), was speaking loudly and aggressively, and because of the prejudicial nature of what he was saying, as well as the aggression involved, Mr Mitchell said he turned around and said to him "Well, who are you Hitler?" 65Mr Mitchell said that when he said this to Mr Deuter he thought that "he would bite his tongue and realise that he had gone overboard, but that's when he came at me". He went on to say that Mr Deuter started to come at him from the other side of the room, he started towards the exit (which was the only door out of the office) and that as he was going out that Mr Deuter might try and give him a push or a bump however when he was about two metres from the door they came together and Mr Deuter hit him on the left side of his jaw, he didn't see whether it was an open or closed fist as he was in a bit of shock at the time and had numbness to the left side of his jaw. Mr Deuter kept trying to grab his shirt around his collar and Mr Mitchell kept trying to push his arms away. SM Hassan got between them and kept them apart and told him to leave the room. 66There was extensive cross examination of Mr Mitchell during which he also demonstrated how Mr Deuter approached him physically and the relative location of the other persons in the room. 67Mr Mitchell also maintained that when he was in the garrison Mr Deuter approached and said to him "you son of a whore, no matter what happens I've got your address and I'm going to get you, and your house". When Mr Deuter was saying this he was standing right next garrison, had his head in the door and was also swearing at the time but he could not remember the swear words exactly. Mr Mitchell told him "Oh okay why don't you just hit me now" and Mr Deuter replied "because there are cameras here" and as he was walking away he said "you'll have to make a lot of repairs to your house, I know just who to call" 68Mr Mitchell maintained that he walked over to the booking office and told SM Hassan what Mr Deuter had just said to him. He subsequently hand wrote the memorandum at about 6.20am, typed it up later in the day and gave it to SM Hassan. 69He maintained he did not do anything to provoke or justify the reaction from Mr Deuter and did not appreciate being vilified, it just lead into the culture that was at Museum. Since he had been stationed at Museum he had noticed that there was a real culture of slandering, harassing and bullying and he had constantly tried to distant distance himself from it. 70He maintained that he had mentioned these issues to a couple of Duty Managers generally, had never reported it, not witness anything first hand nor had anything been directed at him. 71Mr Deuter stated that when Mr Mitchell entered SM Hassan's office and put his two fingers above his lip and raised his arm in a Nazi salute directed at him, he felt very upset by these actions which were meant to degrade his name and humiliate him. He was very proud of his name and his father who came from Germany. He reacted by replying "what's up fat boy"?. Mr Mitchell began to verbally abuse him calling him a 'fucking German Hitler'. He then moved towards Mr Mitchell gesturing with his hand with a pointed finger, did not recall what he said but believed it was something about his big mouth, Mr Mitchell postured with his chest in an aggressive stance towards him and then made contact with his hand which he immediately put palm facing down towards him and stepped back. He had no intention of making physical contact with Mr Mitchell. 72He acknowledged that he may have used the term "fucking fat cunt" or worse as there were expletives going both ways. He maintained that Mr Mitchell said "fucking German Hitler" and probably said more. 73Mr Deuter said that he had been working at Museum Station for about 20 years and had never been involved in any disciplinary matters or had any disagreements with his fellow workers or passengers during that time. Mr Mitchell had been working at Museum Station at about seven months prior to this incident and for the first five months they had a good working relationship, but Mr Deuter was a little concerned with some of Mr Mitchell's jokes that he thought were funny. He also believed that Mr Mitchell's behaviour to other staff and members of the public, especially of Asian origin, bordered on "passive aggressive". It was the way he spoke to other staff in a sarcastic manner and he noticed that he could be verbally abusive to customers, and in many cases it was racially motivated. Mr Deuter said that while he was not Mr Mitchell's supervisor he did try to try to talk to him and his reply was "fuck them". 74Mr Deuter said that about two months before the incident on 12 November 2010 he believed Mr Mitchell became aware that his name was a German name and that was when his attitude towards him changed and he began to make 'smart comments', giving examples such as: When he wore his German soccer track suit to work Mr Mitchell comments were "I see you're in your Gestapo uniform" or "SS uniform", Making comments over the two-way radio about his German heritage when they are working on opposite platforms, While on the opposite platform saying "here boy, here boy, come to me you German Shepherd, come you German dog" this was done while passengers on the platform and A comment referring to his Italian heritage ("I heard you had Dago in you"), 75Mr Deuter said he felt degraded and humiliated, had asked Mr Mitchell to stop making comments about him and he said he was only "mucking around". Mr Deuter told him he had to stop that he was doing and for about two weeks he did stop making comments but then he started again and they were even offensive than before (the German Shepherd comment) He again addressed the issue, told him he had a thick skin but that a line had been crossed and Mr Mitchell again said he was "only mucking around". A few days later he was calling him Hitler again. 76Mr Deuter accepted that he should have made a formal complaint in writing to his manager when Mr Mitchell began to racially vilify him but had hoped that by talking to him it would stop, unfortunately it did not. 77He agreed that he should have reported it, but was too embarrassed to raise these complaints because it was dehumanising and he liked to think he had some self respect. Mr Mitchell had lost his respect but he still wanted to maintain a working relationship with him, it made the job easier if you come to work and get along with the people you work with. 78He went on to say that having worked at Museum Station for 20 years he would not deliberately jeopardised his job by breaching the Code of Conduct but had the right to come to work free of harassment and bullying and to not be racially vilified. Findings 79This is an appeal under clause 43 of the Transport Administration (Staff) Regulation 2005 against RailCorp's decision to impose the punishment of suspension from duty without pay for three consecutive days on Mr Deuter. 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. 80Mr Deuter in his Notice of Appeal has pleaded 'Not Guilty' and disputes the punishment imposed on him by RailCorp. 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. 81At the outset the Board notes that in both his written and oral evidence Mr Deuter does in fact acknowledge that he did call Mr Mitchell "fat boy", but has not acknowledged that in doing so he breached the RailCorp Code of Conduct. 82The Board finds on the evidence that Mr Deuter did use the term "fat boy" towards Mr Mitchell on 12 November 2010, that this was unacceptable behaviour and that he breached the RailCorp Code of Conduct.. 83There were two other parts to the Allegation that were put to Mr Deuter and found not to be sustained by RailCorp (the alleged assault and the alleged subsequent threat). That would appear to the Board to be due to the lack of corroborative evidence. 84Mr Deuter has essentially indicated in his written and oral evidence that his comments followed earlier ongoing racial vilification by Mr Mitchell which he had spoken to him about in effort to have it stopped but not reported to management and which started again on that day with a Nazi salute directed at him (accompanied by the gesture of the two fingers placed above Mr Mitchell's lip). 85This behaviour and these physical actions are denied by Mr Mitchell in both his written and oral evidence and he maintains he only responded with the term "Hitler" following the "fat boy" comment by Mr Deuter. He made counter allegations against Mr Deuter about assault (being struck on the left side of his jaw) and a subsequent verbal threat of harm to both himself and his house. 86However before the Board there is the competing evidence of both Mr Deuter and Mr Mitchell which the Board is entitled to weigh up and take into account. In that weighing up the Board has also taken the demeanour of the witnesses into account. 87RailCorp has alleged that Mr Deuter has brought up the previous unreported incidents as a post facto justification for his actions. This is not accepted by the Board. Indeed if anyone has exaggerated and stretched the truth and provided a rather bizarre post facto justification for his use of the term "Hitler" the Board considers that it is Mr Miitchell who has done so. 88What corroborative evidence there is to the incident does not in the Board's view support any allegation of deliberate assault, nor does the oral evidence before the Board support such an allegation. What is confirmed is that "fat boy" and even "fucking fat cunt" was said by Mr Deuter but once only and the expression "fat boy" was not used three and four times as suggested by Mr Mitchell. 89The Board hastens to add that either expression is offensive and insulting and entirely inappropriate. 90However the Board does not accept that, out of the blue, without any previous incidents, as Mr Mitchell would have the Board accept, Mr Deuter suddenly launches into such offensive language without extreme provocation in the first place to prompt such an out of character response. 91The Board found Mr Deuter to be a witness of truth who gave honest and forthright answers and who accepted that he had done the wrong thing. He also accepted that he should have reported the earlier incidents. The Board, on the balance of probabilities, accepts the evidence of Mr Deuter and considers that those incidents did in fact take place as described. 92The Board also accepts the evidence of Mr Deuter that what provoked his retaliatory comment in SM Hassan's office on 12 November 2010 was the Nazi salute and Hiltler gesture directed towards him by Mr Mitchelll who appears to have thought that because no-one was looking in his direction other than Mr Deuter he could get away with such offensive behaviour. 93The Board was singularly unimpressed with Mr Mitchell as a witness, does not accept his evidence as truthful, considers he has considerably exaggerated his account and evidence at all stages and is very concerned that he does not appear to understand that the comments he has made, the gesture he used on the day and the use of the term "Hitler" are racial vilification of an very serious kind. A kind widely considered by the community in general to carry extreme opprobrium and condemnation even when used in a jocular context. For those of German background and even more so in the case of those of Jewish background/faith, such terms are even more offensive. 94The Board does not accept that any subsequent threat was made by Mr Deuter to Mr Mitchell in the garrison, nor did Mr Mitchell report any such threat to SM Hassan. Whilst there is a signed memorandum from Mr Mitchell to SM Hassan in evidence, SM Hassan's oral and written evidence did not support that he had in fact ever received such document (as submitted by RailCorp). Indeed the Board considers that if such a threat had been reported either verbally or in writing to SM Hassan it would have been the immediate subject of a report to RailCorp. 95Whilst the Board accepts that comments about a person's weight can be particularly hurtful and insulting to the person to whom such comments are directed, in no way does it bear comparison with the racial vilification in which Mr Mitchell has engaged. That is what his behaviour was, racial vilification of the most offensive nature. 96In view of Mr Deuter's lengthy unblemished service (the previous issue in 1998 concerning sick leave is considered to be of insufficient consequence to be given any weight) to have imposed an identical penalty on both Mr Deuter and Mr Mitchell is not appropriate. The Board also notes Mr Mitchell's consistent denials of any wrong doing (only using the term "Hitler" once) and his failure to acknowledge the seriousness of the language he has used. 97The Board does consider that Mr Deuter should receive a written warning, further counselling (and notes that these have been imposed by RailCorp in any event) and a monetary penalty in lieu of the three day unpaid suspension imposed by RailCorp for his unacceptable language and the lack of respect shown to Mr Mitchell. 98Taking all of the relevant circumstances into account and having carefully considered the evidence and submissions of the parties the Board has determined that the appropriate penalty under Clause 37 of the Regulation is a fine of $150. Mr Deuter is to be given 21 days to pay that fine to RailCorp. Order(s) 99In relation to appeal (TAB12/1277) the Board makes the following orders: 1.The appeal is allowed; 2.The decision of RailCorp to suspend Mr Deuter without pay for three consecutive days is set aside; 3.Mr Deuter is to be issued with a written warning; 4.Mr Deuter is to attend such counselling and further training as is considered by RailCorp to be appropriate; 5.Mr Deuter is fined an amount of $150: and 6.Mr Deuter has 21 days from the date of this decision to pay RailCorp the fine specified in Order 5. 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: 24 April 2012