Maklouf v RailCorp [2012] NSWTAB 14

Transport Appeal Boards New South Wales Medium Neutral Citation: Maklouf v RailCorp [2012] NSWTAB 14 Hearing dates: 8 March 2012 Decision date: 30 April 2012 Before: Bishop C Decision: Appeal disallowed Catchwords: PUBLIC SERVICE - discipline - rail employee - breaches of Code of Conduct - allegations concerned four applications for periods of sick leave supported by medical certificates - attendance at poker tournaments during absences -claim of unplanned attendance on three occasions - denied leave for fourth but attended on certificate based on stress - allegations investigated and found proven - dismissed -appeal to Transport Appeal Board - HELD - medical certificates issued by doctor in good faith - appellant not unfit for duty - attendance not unplanned and premeditated - mislead employer- allegations sustained in majority - actions inappropriate and serious misconduct - appeal disallowed. Legislation Cited: Fair Work Act 2009 Industrial Relations Act 1996 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: John Maklouf (Appellant) Rail Corporation of NSW (Respondent) File Number(s): TAB 1429 of 2011

DECISION

Introduction 1Mr Maklouf commenced employment with RailCorp on 28 November 1996 as a Junior Station Assistant, then worked as a Customer Service Attendant before training as a Train Guard and became a Duty Manager in 2000. He was employed as a Duty Manager Level 3 at Granville at the time of his dismissal (Exhibit 1-D30). 2On 18 October 2011 Mr Maklouf was dismissed by RailCorp for breaches of RailCorp's Code of Conduct. 3On 1 November 2011 Mr Maklouf lodged an appeal in respect of his dismissal to the Transport Appeals Board. In his Notice of Appeal he indicated a plea of 'not guilty' to the allegations made by RailCorp. 4The matter was listed for disciplinary conciliation before Commissioner Tabbaa on 14 December 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 8 March 2012.