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. Background and Chronology 5Mr Maklouf was dismissed as a consequence of the following eight (8) allegations made against him by RailCorp (Exhibit 1): Allegation 1 In a leave application DM Maklouf submitted on the 18 August 2010 for sick leave from the 10 August 2010 to the 15 August 2010 he provided false and misleading information to RailCorp. The particulars of the allegation are: a)He submitted a signed application for sick leave from the 10 August 2010 to the 15 August 2010. b)Next to his signature it states "I agree with all the above". c)On the form it states "Have you attached a medical certificate" and the box marked "Yes" is ticked. d)He did not have a genuine medical certificate for this day. e)He was not sick for all of these days as he attended and competed in a poker tournament on the Gold Coast. Allegation 2 DM Maklouf provided a false and misleading document to RailCorp to support his application for sick leave for the 10 August to the 15 August 2010. The particulars of the allegation are: a)He signed an application for sick leave for the 10 August to the 15 August 2010. b)Next to his signature it states "I agree with all the above". c)On the form it states "Have you attached a medical certificate" and the box marked "Yes" is ticked. d)He provided a medical certificate dated the 10 August 2010 from Dr Hany Hanna of 268 Guildford Road, Guildford. The document states "This is to certify that Mr John Maklouf is receiving medical treatment and for the period Tuesday, 10 August 2010 TO Sunday, 15 August 2010 INCLUSIVE. He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION. This certificate was completed on 10/8/2010." e)He was not sick for all of these days as he attended and competed in a poker tournament on the Gold Coast. Allegation 3 In a leave application DM Maklouf submitted on the 13 October 2010 for sick leave for the 9 October 2010 he provided false and misleading information to RailCorp. The particulars of the allegation are: a)He submitted a signed application for sick leave for the 9 October 2010. b)Next to his signature it states "I agree with all the above". c)On the form it states "Have you attached a medical certificate" and the box marked "Yes" is ticked. d)He did not have a genuine medical certificate for this day. e)He was not sick for the 9 October 2010 as he attended and competed in a poker tournament in Melbourne. Allegation 4 DM Maklouf provided a false and misleading document to RailCorp to support his application for sick leave for the 9 October 2010. The particulars of the allegation are: a)He signed an application for sick leave for the 9 October 2010. b)Next to his signature it states "I agree with all the above". c)On the form it states "Have you attached a medical certificate" and the box marked "Yes" is ticked. d)He provided a medical certificate dated the 8 October 2010 from Dr Hany Hanna of 268 Guildford Road, Guildford. The document states "This is to certify that Mr John Maklouf is receiving medical treatment and for the period Friday, 8 October 2010 TO Monday, 11 October 2010 INCLUSIVE. He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION. This certificate was completed on 8/10/2010." e)He was not sick for all of these days as he attended and competed in a poker tournament in Melbourne. Allegation 5 In a leave application DM Maklouf submitted on the 2 November 2010 for sick leave from the 25 October 2010 to the 27 October 2010 he provided false and misleading information to RailCorp. The particulars of the allegation are: a)He submitted a signed application for sick leave from the 25 October 2010 to the 27 October 2010. b)Next to his signature it states "I agree with all the above". c)On the form it states "Have you attached a medical certificate" and the box marked "Yes" is ticked. d)He did not have a genuine medical certificate for these days. e)He was not sick for all of these days as he attended and competed in a poker tournament in Darwin. Allegation 6 DM Maklouf provided a false and misleading document to RailCorp to support his application for sick leave for the 25 October to the 27 October 2010. The particulars of the allegation are: a)He signed an application for sick leave for the 25 October to the 27 October 2010. b)Next to his signature it states "I agree with all the above". c)On the form it states "Have you attached a medical certificate" and the box marked "Yes" is ticked. d)He provided a medical certificate dated the 25 October 2010 from Dr Abdelwahab of 268 Guildford Road, Guildford. The document states "This is to certify that Mr John Maklouf is receiving medical treatment and for the period Monday, 25 October 2010 TO Wednesday, 27 October 2010 INCLUSIVE. He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION. This certificate was completed on 25/10/2010." e)He was not sick for all of these days as he attended and competed in a poker tournament in Darwin. Allegation 7 DM Maklouf provided a false and misleading document to RailCorp to support his application for sick leave for the 10 November to the 17 November 2010. The particulars of the allegation are: a)He applied for leave from the 10 to the 15 November 2010 to attend a poker tournament. This leave was not approved. b)He provided a medical certificate dated the 10 November 2010 from Dr Hany Hanna of 268 Guildford Road, Guildford. The document states "This is to certify that Mr John Maklouf is receiving medical treatment and for the period Wednesday, 10 November 2010 TO Wednesday, 17 November 2010 INCLUSIVE. He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION. This certificate was completed on 10/11/2010." c)He was not sick for all of these days as he attended and competed in a poker tournament in the Philippines. Allegation 8 In his response to the previous six (6) allegations (allegations 1 to 6) in relation to his sick leave DM Maklouf was not truthful in his response to RailCorp in relation to these allegations. The particulars of the allegation are: In his signed response letter he stated "I only decided to attend these tournaments, once given time off by my doctor".The matter was referred to the RailCorp Investigation Unit (RUI) for investigation of the incidents. 6RailCorp detailed the following relevant absence history concerning Mr Maklouf upon which it relied (Exhibit 1-JK): On the 11 November 2004 he was informed that he would be required to improve his attendance to comply with the Absence Management Policy and to provide medical certificates for all absences going forward while his attendance was under review. In February and September 2008 he was advised that his attendance was again excessive and consequently under review in accordance with the Absence Management Policy. On 26 March 2010 RailCorp he was placed under review in accordance with the Absence Management Policy. 7RailCorp's roster sheets show that Mr Maklouf took leave and/or accumulated public holidays from 9 to 14 June 2010 inclusive (Exhibit 1-N). Mr Maklouf attended a poker tournament in Canberra utilising accumulated public holidays in May - June 2010 (Exhibit 1-F). 8Mr Maklouf sought leave for the period 14 to 25 July 2010. This was denied for operational reasons (Exhibit 1-L). On 19 July 2010 he reported sick for duty. Upon his return to work on 26 July 2010 he advised that he did not wish to claim sick leave and would just take the absence as leave without pay, stating that his absence had been due to "an important event overseas". Mr Maklouf's comment raised concerns for Customer Service Manager Marcus Burt that he was trying to avoid compliance with absence management reporting (Exhibit 1-D29). 9On 10 August 2010 Mr Maklouf reported sick and returned to work on 16 August 2010 submitting an 'Application for Leave' with a Medical Certificate from Dr Hany Hanna stating that he was receiving medical treatment for the period and would be unfit to continue his usual occupation (Exhibit 1-D20). 10On 9 October 2010 Mr Maklouf reported sick and returned to work the following day, 10 October 2010, submitting an 'Application for Leave' with a Medical Certificate from Dr Hanna stating that he was receiving medical treatment and would be unfit to continue his usual occupation from the 8 to 11 October 2010 inclusive (Exhibit 1- D21). This raised concerns for Station Manager John Singh who brought the matter to the attention of Customer Service Manager Marcus Burt (Exhibit 1-D32). 11The matter was reported to the Human Resources Business Partner for Sector 3, Ms Thelma Hancock, and her preliminary enquiries revealed that Mr Maklouf had competed in an international poker tournament in Queenstown, New Zealand, on 25 July 2010, and a tournament on the Gold Coast on 12 August 2010. The matter was referred to RailCorp's Investigations Unit (RUI) for investigation (Exhibit1-D29). 12Mr John Kinney, an RUI Investigator, conducted a disciplinary investigation, obtaining evidence confirming Mr Maklouf's attendance at a number of poker tournaments throughout 2010. He also obtained copies of leave records (Exhibit 1-D20 to 23) and witness statements from the following RailCorp personnel: John McCullah, Senior Payroll Officer (Exhibit1-D18), Nur Rahim, Senior Rostering Officer (Exhibit1-D19), Dr Armand Casolin, Chief Health Officer (Exhibit 1-D26). 13By correspondence dated 5 November 2010, Mr Kinney requested that Mr Maklouf respond to six (6) allegations that he had breached the Code and attaching relevant copies of the Code, the StateRail Discipline Policy, the RailCorp Discipline Policy and applications for leave and medical certificates relevant to the allegations (Exhibit1-D1). 14On 1 December 2010, RailCorp received a written response from Mr Maklouf in which he stated that the allegations were false and that he was unfit for duty on the dates in question. He stated that he had been stressed and fatigued in the later half of 2010 and felt unable to carry out his duties safely, but that he never claimed he was not able to move or travel. He said he had not had applications for leave approved and that he only decided to attend the poker tournaments once he had been given time off by his Doctor (Exhibit 1-D2). 15As a result of Mr Maklouf's claim to be stressed and fatigued, RailCorp requested that he attend an independent medical assessment and he subsequently underwent a physical and psychological assessment by Associate Professor Nicholas Glozier on 19 January 2011. 16By correspondence dated 31 January 2011, Mr Kinney advised Mr Maklouf as to the progress of the disciplinary investigation (Exhibit 1-D3). 17By correspondence dated 14 March 2011 Mr Kinney requested that Mr Maklouf respond to a further two allegations that he had breached the Code within 14 days (Exhibit 1-D4). 18By correspondence dated 21 April 2011 Mr Kinney invited Mr Maklouf to attend a disciplinary interview scheduled for 4 May 2011 (Exhibit 1-D5). Mr Maklouf declined the invitation by email dated 2 May 2011 (Exhibit 1-D6) and provided a further written response dated 2 May 2011 (Exhibit 1-D7) in which he relevantly stated: He had accumulated over 4 1/2 months of long service leave. This was the second time he had requested long service leave and the second time he was declined; The package he had won [to play poker in the Philippines] was to the value of $5,000; On Tuesday evening 9 November 2010 he suffered what he believed to be an anxiety attack, went to the Doctor the next day who gave him a certificate. He was meant to go home and rest and see the Doctor in a couple of days. He went home a slept a little and when he awoke he was not feeling better. The more he thought about it, the more he felt trapped and needed to escape. His flight was after 10pm that night; The package he had won was in a resort with a health spa. While he was there he had a number of therapeutic treatments, which he felt were beneficial to him. He also received counselling from a sports peak performance and mind conditioning coach; He participated in the third day of the poker tournament for 7 hours, and for 1 hour the next day and then was eliminated; He made a last minute decision to attend these events even though it was against his personal bankroll management rules he had set for himself. 19Mr Kinney considered the evidence and found all eight Allegations to be substantiated. The Investigation Report was forwarded to RailCorp's Disciplinary Review Panel (DRP) for consideration (Exhibit 1-D). 20On 5 September 2011 the DRP considered the allegations against Mr Maklouf and the investigation Report findings and made a preliminary recommendation that he be dismissed. Mr Maklouf was advised of this preliminary recommendation by letter dated 6 September 2011 and afforded the opportunity to make a submission regarding the proposed outcome within fourteen days ((Exhibit 1-E). 21Mr Maklouf provided a response to the DRP's preliminary recommendation by letter dated 26 May 2011, (but received on 27 September 2011 - Exhibit 1-F), in which he relevantly stated the following: His personal circumstances caused him stress (he did not specify when). He had three days accumulated public holiday leave approved for a poker tournament in Canberra in May-June. Some time after this he was sick and took a week off work. His absenteeism was high. He applied for out of course leave for a tournament in New Zealand in late July and this was declined the day before. He attended the tournament in New Zealand and did not claim pay. After this he wanted to apply for two months long service leave. He needed time off but was too embarrassed to say that he might be suffering from depression. In early October he applied for six days long service leave to be taken in November for a tournament in the Philippines and this was declined. He suffered an anxiety attack, was stressed and suffering from depression. He did not feel he could cope with stressors at work. Competing in poker tournaments gave him hope. He provided a letter from Dr Hany Hanna dated 14 September 2011 stating that he was seen in November 2010 suffering from stress and major depression due to problems at work. 22Mr Kinney reviewed Mr Maklouf's response and prepared a Memorandum for the consideration of the DRP dated 28 September 2011 (Exhibit 1-G). The DRP considered both Mr Maklouf's response and the Memorandum on 10 October 2011 and confirmed its preliminary recommendation to dismiss him and he was notified of such dismissal effective 18 October 2011, by letter dated and acknowledged on 18 October 2011 (Exhibit 1-HI) 23The relevant provisions of Railcorp's Code of Conduct were also set out in Exhibit 1-O. Issue(s) 24Mr Maklouf pleaded "Not Guilty" to the allegations and sought that the penalty be set aside and that he be reinstated to his former position. It is therefore the Board's task to firstly determine whether the allegations against Mr Maklouf are sustained, and secondly, the appropriate penalty to be imposed if the allegations are found to be sustained. Respondent's Case 25RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. 26Ms Baxter on behalf of RailCorp made oral submissions in addition to the written submissions as filed (Exhibits 1 and 2). 27The Board was referred to the relevant provisions of the RailCorp Code of Conduct (under the heading of 2. Acceptable behaviour and responsibilities) and it was submitted that the allegations referred to conduct that took place in 2010 and that Mr Maklouf was briefed on the Code on 22 November 2006, 30 June 2007 and 25 March 2010 (Exhibit 1-D30). Therefore he knew, or ought to have known, of his responsibilities under the Code. Specifically Mr Maklouf's behaviour, as set out in the eight (8) Allegations, 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; Made unethical decisions and failed to comply with policies, procedures, rules and job requirements. Failed to carry out his duties honestly and fairly; Failed to be honest and accurate in timekeeping; Knowingly made a false statement; Failed to carry out lawful directions from managers/supervisors to provide genuine medical certificates for sick leave; Failed to lead by example; and Failed to promote the highest standards of professional conduct. 28Ms Baxter analysed the oral and written evidence submitting that Mr Maklouf had pleaded "Not Guilty" on his Notice of Appeal but did not deny attending poker tournaments maintaining that on each occasion that he provided medical certificates and attended the tournaments, he was genuinely unwell. 29Allegations 1 to 8 related to the four occasions identified that Mr Maklouf provided applications for sick leave and/or medical certificates covering periods that he attended international poker tournaments. The evidence relating to the circumstances for each occasion was then referred to as set out below. 30Allegations 1 & 2: * On 10 August 2010 Mr Maklouf reported sick, returned to work on 16 August 2010 and submitted an 'Application for Leave' and Medical Certificate for 10 to 16 August 2010. He attended a poker tournament on the Gold Coast from 11 to 15 August 2010 (Exhibit 1-D12 & 17). * For the purpose of this appeal, RailCorp issued a Summons to Produce on Dr Hanna requesting copies of medical records relating to Mr Maklouf (Exhibit 1-M). those records showed that Mr Maklouf presented on 10 August 2010 with pain in his right hip while playing soccer, for which he was prescribed Nurofen (Exhibit 1-M) and given a medical certificate for 10 to 16 August 2010 (Exhibit 1-D20). Dr Hanna's evidence was that he was unaware that Mr Maklouf was going to travel to the Gold Coast to compete in a poker tournament during this period. * Dr Hanna's evidence was that if the pain was extreme he would have recorded that. It wasn't on his records. * Dr Hanna did not require any follow up or referral to a physiotherapist. * Mr Maklouf's responses throughout the disciplinary process did not specifically refer to the circumstances surrounding Allegations 1 and 2. However he did submit the following, * "During this period it was a constant struggle, I was not getting good sleep, I was not eating right, I didn't have energy, I constantly felt sick and couldn't bring myself to exercise..." (Exhibit 1-F). * When assessed by A/Professor Glozier in January 2011 he claimed that prior to his attendance at the Gold Coast poker tournament (in August) he presented to his GP reported disturbed sleep, tiredness and requesting days off work. A/Professor Glozier reported, "Apparently his GP offered him sleeping tablets which he declined but took the sickness certification and then went on to fly to the Gold Coast and play in the tournament." * After seeing the medical records of the Guildford Road Medical Centre (obtained under Summons by RailCorp), Mr Maklouf claimed that from 10 to 15 August 2010 he was suffering from right hip pain such that he was not fit for duty because of his "restricted movement ability". * He did not mention this to A/Professor Glozier. * He also only mentioned it in passing in his response to the show cause letter but only as a factor as part of the build up of the stress on him. 31It was submitted that Mr Maklouf's general claim to being stressed and sick was not borne out by the medical evidence relating to Allegations 1 and 2. 32Allegations 3 & 4: * Mr Maklouf reported sick on 9 October 2010, returned to work on 10 October 2010 and provided an 'Application for Leave' for one day and a Medical Certificate for 8 to 11 October 2010 inclusive. He attended a poker tournament in Melbourne on 9 October 2010 (Exhibit 1-D13 & 32). * The medical records of Dr Hanna showed that Mr Maklouf presented on 8 October 2010 with a sore throat. He was prescribed rest, fluid and Panadol (Exhibit 1-M). Dr Hanna's evidence was not aware that Mr Maklouf was going to travel to Melbourne to compete in a poker tournament during this period. * It was submitted that Mr Maklouf provided no specific response to the circumstances surrounding Allegations 3 and 4, but on any reasonable view, flying to Melbourne overnight and participating in a poker tournament did not equate to rest (and fluid). * Mr Maklouf informed A/Professor Glozier that he repeated his presentation to his GP and request for leave twice more in October to attend tournaments in Melbourne and Darwin. * After seeing the medical records of the Guildford Road Medical Centre, Mr Maklouf claimed that from 8 to 11 October 2010 he was "not feeling well". 33It was submitted that Dr Hanna agreed that doctors were reliant on a patient being honest. Dr Casolin also said that doctors were reliant on patient history which they take in good faith. Doctors were required to be cautious therefore RailCorp could not say that the medical certificates on their face were sufficient evidence that Mr Maklouf was unfit for duty when the overall circumstances were taken into account. 34 Allegations 5 & 6: * Mr Maklouf reported sick on 25 October 2010 and resumed work on 2 November 2010 (Exhibit 1-D22). During that time he attended a poker tournament in Darwin (Exhibit 1-D14 & 33). * The medical records showed that he presented to Dr Abdelwahab on 25 October 2010 "for sickness certificate" (Exhibit 1-M). It was not clear what the nature of the his sickness was, or whether the Doctor was aware that he was going to fly to Darwin to participate in poker tournament while covered by the medical certificate from 25 to 27 October 2010. * Mr Maklouf provided no specific response to the circumstances surrounding allegations five and six. 35Allegations 7 & 8: * Mr Maklouf made a request for 'out of course' leave for 10 to 15 November 2010 which was denied for operational reasons. The denied request was reviewed by the Area Support Officer and then the Sector Operations Manager and the denial confirmed (Exhibit 1-D23). * Mr Maklouf reported sick on 10 November 2010 and provided a medical certificate for 10 to 17 November 2010 inclusive (Exhibit 1-D24). During this time he attended a poker tournament in the Philippines (Exhibit 1-D18 & 15). * Mr Maklouf had received his first allegation letter from RailCorp on or around 5 November 2010. At this point he was aware that a disciplinary investigation was under way and had been advised of possible penalties if allegations were substantiated yet in spite of this, he chose to attend this poker tournament in the Philippines. * In his response to the allegation letter he stated that he had been stressed and fatigued in the later half of 2010 and felt unable to carry out his duties safely but submitted, "I never claimed I wasn't able to move or travel". * None of his medical certificates referred to him suffering from stress and fatigue. * In response to the preliminary dismissal letter he provided a letter from Dr Hanna, which stated that he was seen in November 2010 suffering from stress and major depression due to problems at work. * The medical records of Dr Hanna showed that on 10 November 2010 Mr Maklouf presented with depressed mood and stress due to a problem at work. A medical certificate to 17 November 2010 was provided. There were no earlier entries in the medical records relating to stress or fatigue and also no indication as to whether, in providing him with a medical certificate for eight days, Dr Hanna was aware that he was going to travel to the Philippines to participate in a poker tournament. He claimed that he explained his situation about work to Dr Hanna, who agreed to give him a medical certificate because he felt he could not go back to work and "needed time away from the station". * As noted above, Mr Maklouf received his first allegation letter from RailCorp on or around 5 November 2010. At this point he was aware that a disciplinary investigation was under way and had been advised of possible penalties if allegations were substantiated. In spite of this, he chose to attend a further poker tournament in the Philippines from 10 to 17 November 2010. * A/Professor Glozier's Report of the independent medical assessment he conducted in January 2011 concluded that Mr Maklouf showed no signs of psychiatric or sleep disorder and that "the stressors of performance, travelling to a tournament, and taking part would appear to be the primary cause of any symptoms" he was experiencing (Exhibit 1- D25). * A/Professor Glozier also formed the view that Mr Maklouf had planned to attend the poker events in Melbourne and Darwin. He also noted that as of January 2011 Mr Maklouf was already trying to sort out how he could apply for leave to attend at least eight tournaments in the next season in the Asia Pacific region. 36It was submitted that the medical evidence of A/Professor Glozier, supported by the statement of Dr Armand Casolin, RailCorp's Chief Health Officer (Exhibit 1-D26), should be preferred over that of Dr Hanna. 37Any criticism of A/Professor Glozier's report because he had not seen Dr Hanna's records was rejected on the basis that he was a qualified medical practitioner and it was quite clear that he asked Mr Maklouf to specify any psychological or health problems and he didn't do that. It was his opportunity to report those things and he did not so. It was also his opportunity to report that things were not well at RailCorp. A/Professor Glozier said that he asked him if there were any problems at work and he gave no response. A/Professor Glozier was independent and had no reason to record comments that Mr Maklouf told him incorrectly. 38Dr Casolin went so far as to say that in his view having regard to the big picture and Mr Maklouf's admissions to A/Professor Glozier he questioned whether he was sick at all. 39Mr Maklouf had provided no evidence to suggest that Dr Hanna was aware of his movements after he was provided with the relevant medical certificate, nor was there evidence from Dr Hanna to suggest that travelling to and participating in a poker tournament in the Philippines was recommended for Mr Maklouf's alleged medical condition. He did not refer him for further examination or prescribe sleeping tablets but said he might benefit from a holiday to calm him down. He wouldn't go so far as to say that going to a poker tournament would assist - he said he didn't know about that. 40RailCorp rejected Mr Maklouf's reliance on medical certificates obtained from Dr Hanna and Dr Abdelwahab, as evidence that he was not fit for duty on each occasion relevant to the allegations, as those medical certificates did not reveal the nature of his sickness on each occasion (acknowledged as standard practice). 41It was submitted that Mr Maklouf's role as a Duty Manager involved management of the day to day operation of Granville Station under the control of the Station Manager. A/Professor Glozier's assessment was that Mr Maklouf had no condition affecting his role as a Duty Manager or Rail Safety Worker Category 2. 42In Mr Maklouf's response to the preliminary dismissal letter he claimed that his "job requires a lot of self control, getting verbally abused or sworn at by passengers is part of the job of front line staff..." He submitted, "I am also in a safety critical role with no room for error. During this period I did not feel I was able to cope with any of these situations". By comparison, he described his work to A/Professor Glozier as "mundane" compared to the adrenalin, anxiety and tension of poker. 43It was submitted that there were sufficient inconsistencies in Mr Maklouf's evidence to conclude that the position on which he sought to rely as his reasons for attending poker tournaments while claiming to be unfit for duty were disingenuous. Either he was not genuinely/sufficiently sick to be unfit to perform his role as a Duty Manager, or, he was sick and unfit for duty and should not have attended international poker tournaments while claiming sick leave from RailCorp. In this regard, it was noted that he did not claim sick leave on just one occasion, but on four separate occasions throughout August to November 2010. 44It was also submitted that further allegations could well have been put to Mr Maklouf concerning his attendance at the Sydney tournament in April 2010 when he said in oral evidence that he called in to say he wasn't coming in and then in July when he took it upon himself to go the Queenstown tournament after he'd been denied leave.. Those issues were not the subject of allegations but were relevant to the overall picture that should be taken into account in respect of the evidence. 45It was also submitted that if each occasion were considered separately there were certainly questions over the seriousness and /or validity of his illness on each occasion. When the evidence was considered as a whole and in the light of the inconsistencies in Mr Maklouf's evidence throughout the process then the conclusion that must be drawn was that the certificates were not genuine and that indeed Mr Maklouf was not unfit for duty on each occasion. 46The reasonable conclusion available to the Board was that Mr Maklouf had been making it all up or at the least exaggerating a story that he was stressed and fatigued. Perhaps he was a little stressed or fatigued but that was as a result of his personal activities involving poker, there was no evidence to say it was work related. he had made up this story at the beginning of the disciplinary process, stuck to it throughout and only changed his mind once he had reviewed the records of Dr Hanna which revealed the specific illness of a different nature claimed on each occasion. 47It was submitted that Mr Kinney's evidence was that on the balance of probability it was unlikely that Mr Maklouf only decided to attend tournaments once he was given time off. His determination to attend the tournament in Queenstown after having leave refused added weight to that idea that Mr Maklouf would have found a way to get to those tournaments whatever he had to do. That was perhaps understandable because it appeared from A/Professor Glozier's report that there was a lot of money at stake. 48Because of this determination on Mr Maklouf's part in addition to his failure to accept during his evidence that she shoul not have attended these tournaments these factors meant that RailCorp could not trust that if he was reinstated it would not happen again. 49It was submitted that Mr Maklouf's actions in claiming sick leave from RailCorp while he attended poker tournaments were serious and tantamount to fraud. The evidence did not support the reasons he gave in order to mitigate his actions. 50RailCorp maintained that Mr Maklouf had committed serious breaches of the Code for which dismissal was appropriate and in the circumstances the Board should not alter the decision of RailCorp and the appeal should be disallowed. Appellant's Case 51Ms Presdee, on behalf of Mr Maklouf, made oral submissions in addition to the written submissions as filed (Exhibit 3) and in doing so summarised Mr Maklouf's evidence (as set out in the Evidence below). 52It was submitted that Mr Maklouf played competitive poker, both on-line and in tournaments. The Allegations related to his attendance at poker tournaments on the Gold Coast (Allegations 1 & 2), Melbourne (Allegations 3 & 4), Darwin (Allegations 5 & 6) and the Philippines (Allegations 7). 53It was Mr Maklouf's contention for all allegations that he was not fit for duty on all occasions, that he accessed sick leave and therefore did not submit false or misleading information or documents, either in terms of a leave application, nor with regard to his medical certificates. Further, for those tournaments held other than in the Philippines, he did not mislead the RailCorp in relation to his submissions during the disciplinary process. 54It was submitted that the Fair Work Act 2009 defined an entitlement to take personal/carer's leave if the leave was taken "because the employee is not fit for work because of a personal injury or illness affecting the employee" (s.97). Employees must also notify employers of their need to take such leave and provide evidence if the employer requires them to do so (s107). 55In line with his obligations Mr Maklouf notified his employer that he was unable to attend work because he was "sick" and he supplied medical certificates supporting his leave application. The medical certificates were obtained from two doctors who practiced at a Medical Centre in Guildford, Dr Hanna, who had been his regular General Practitioner since about 2002 and Dr Abdelwahab. Those medical records showed the diagnosis for each of the relevant occasions that he was on leave. 56It was conceded that the nature of each illness or injury was not necessarily disclosed on the medical certificate; however this was permissible under RailCorp's leave policy. 57It was noted that Mr Maklouf had been placed on absence management on previous occasions. However, no allegation had ever been put to him that those absences were in any way in breach of the Code of Conduct. In addition, he complied with all requirements when placed on absence management. RailCorp did not, at any stage, send him to a medical assessment until after these Allegations had been made against him. The medical assessment with A/Professor Glozier, a psychologist, dealt solely with whether he had a psychological condition. 58It was Mr Maklouf's contention that, at the time that the incidents outlined in the Allegations took place, he was growing dissatisfied with the nature of shift work, and he was becoming stressed and frustrated with the inability to obtain out of course leave from his supervisor. From a health perspective, he was having trouble sleeping and he believed he was more susceptible to colds, sore throats and 'flu-like illnesses. 59It was also submitted that being not fit for duty did not necessarily mean that a person could not do other things. It was not saying that they were not fit to do anything other than stay in bed. It was saying "I can't go to work". 60It was also submitted that Mr Maklouf was a competitive poker player. Someone who was not a competitive poker player and driven by the need to play poker competitively might not make decisions which might be seen as irrational and against a doctor's advice. Mr Maklouf was however a person for whom poker provided a release, it gave him an adrenaline rush and made him feel good about himself, he was therefore going to make decisions that an ordinary person may not. 61It was submitted that Mr Maklouf denied that he mislead the RailCorp investigation. At no point was he guaranteed any entry to the tournaments on the Gold Coast, Melbourne or Darwin. His decision to attend those tournaments was only made after visits to the Doctor. RailCorp had not provided any evidence to the contrary, or why his submission should not be accepted, in relation to this ground. 62It was also submitted that Mr Maklouf had been truthful with Dr Hanna and it was up to the Board to determine, based on the evidence, who was to be believed. 63It was accepted that RailCorp sent Mr Maklouf for a psychological assessment with Associate Professor Glozier in January 2011. A/Professor Glozier determined that there was no underlying psychological condition and therefore Mr Maklouf's absences could not be explained by that. It could be inferred from A/Professor Glozier's report that the illnesses were not genuine. 64However there were inconsistencies in A/Professor Glozier's evidence. While he had his contemporaneous notes with him when he looked in his notes he could not find any mention in them about Mr Maklouf winning over six figures in the past year. yet RailCorp was saying that based on his report this was very lucrative and should be believed. 65It should be noted that A/Professor Glozier did not have Dr Hanna's medical records concerning Mr Maklouf at the time of his assessment. It was not clear whether he had Mr Maklouf's attendance records from RailCorp because he only referred to those absences that coincided with poker tournaments - despite the fact that Mr Maklouf was absent due to illness in June and July. 66Further, it was noted that A/Professor Glozier tied any possible stress that Mr Maklouf may be under with the tournaments he attended. With respect to A/Professor Glozier, this was irrelevant. This was not a case for worker's compensation. It was a case to determine whether or not an employee was fit for duty on a particular day. As such, it was not so much whether the stress was induced by work, recreational activities or any other factor but whether there was illness or injury as a result of that stress. 67It was also noted that Mr Maklouf had been involved in absence management processes in 2004, 2008 and 2010. However these absences appear to be prior to poker tournaments or, more to the point, not shown to be related to his participation in poker tournaments. It was noted that despite being placed in these processes, RailCorp had not scheduled any out of course medical assessments for Mr Maklouf. 68It was also noted that, according to the file note of Ms Thelma Hancock, it ignored that a leave request was actually submitted prior to the tournament in Queenstown occurring, that Mr Maklouf had never been asked if he rang in "sick" - which he did not - and that his absences over this time included times when he was genuinely ill. None of these allegations were put to him. 69It was submitted that it was also a concern, that despite applying for leave in relation to his participation in tournaments in the Philippines and in Queenstown, there was no discussion in the Investigation Report as to when these applications were sought, when they were determined and then when Mr Maklouf was notified that he was unsuccessful. It remained his contention that he sought leave but had not been treated fairly in terms of both the consideration given to the requests, but also the time taken to assess the requests. 70It was accepted that the ability to take 'out of course' leave must be balanced with the staffing needs of RailCorp. However when an employee sees his immediate manager being able to obtain leave, and he is not, then a perception of unfairness can easily develop. 71It was submitted that, notwithstanding Mr Maklouf's plea of "Not Guilty" for all Allegations levelled against him, dismissal was too harsh a sanction for these offences, particularly given his employment history. 72Mr Maklouf had had no disciplinary sanctions throughout his career with RailCorp and its predecessors. While there had been instances of absence management, this was not part of the disciplinary process and should not be considered as such. It was also noted that Mr Maklouf was not stood down during the disciplinary investigation. RailCorp had the discretion to suspend him but did not until after the DRP made its preliminary recommendation. 73While the seriousness of the Allegations was noted, there were other options for RailCorp to consider - particularly suspension without pay and transfer or regression. 74Mr Maklouf had worked for RailCorp for his entire adult life. He did not necessarily have transferable skills outside managing a rail office. He had a mortgage and other financial commitments that needed to be dealt with. While he had been successful with poker in 2010, that did not mean that he will be able to pursue it as any more than a hobby; not as a career. 75Mr Maklouf had let his frustration in his workplace cloud his judgment. He was prepared to pay back any pay that he should not have received, however he maintained that he genuinely was not fit for work on the days he claimed sick leave. He requested that he be reinstated and was willing to submit to an alternate disciplinary sanction that the Board considered appropriate such as a suspension without pay for a period of time but there should be back pay for some of the time involved. Evidence 76RailCorp's evidence before the Board was contained in the Investigation Report (attached to Mr Kinney's statement - Exhibit 1-D) and other Annexures (D1-33 and E to N) which included, inter alia: the various letters exchanged concerning the Allegations; relevant memos and emails; leave applications and medical certificates; evidence as to various poker tournaments; the written responses of Mr Maklouf; Mr Maklouf's Ellipse Personal History Report; correspondence exchanged concerning the outcome of the disciplinary process; and Statements from the following RailCorp employees: John McCullah, Senior Payroll Officer (Exhibit1-D18), Nur Rahim, Senior Rostering Officer (Exhibit1-D19), Dr Armand Casolin, Chief Health Officer (Exhibit 1-D26). 77A medical report from Associate Professor Glozier was also included as part of Mr Kinney's Investigation Report. RailCorp were advised that both A/Professor Glozier and Dr Casolin were required for cross examination and they both appeared before the Board and gave oral evidence. 78A Summons to Give Evidence pursuant to s.165 (3)(b) of the Industrial Relations Act 1996 was also issued by RailCorp with respect to Dr Hany Hanna, who appeared before the Board and gave oral evidence. 79Mr Kinney's Investigation Report analysed the evidence obtained in relation to each of the allegations against Mr Maklouf, including leave/absence records, medical evidence and the results of on-line Google searches of relevant websites concerning the ANZPT poker tournaments in 2010 and various email exchanges with relevant supervisors/roster clerks etc. 80Mr Kinney indicated in his 'Analysis' of the available evidence, that the www.pokerpages.com website under Mr Maklouf's 'Player Profile' showed that as a result of competing in ANZPT poker tournaments in 2010 he won $116622. This did not include the value of the package to the Philippines that Mr Maklouf received for coming second in the ANZPT Player of the Year Competition. He had told A/Professor Glozier that he had won "over six figures" and also that he had been advised to keep his RailCorp job until such time as he won big enough to consider whether he could leave his role. 81Mr Kinney reported that Dr Casolin did not accept the medical certificates produced by Mr Maklouf as genuine and A/Professor Glozier could not see any reason why the symptoms reported by Mr Maklouf warranted taking sick leave. Mr Maklouf admitted to attending and competing in poker tournaments. 82 Mr Kinney found the allegations against Mr Maklouf proven "on the balance of probabilities". He concluded that "DM Maklouf has made admissions to attending ANZPT tournaments whilst on sick leave and this indicates that he was fit to attend duty" and referred his report to the DRP for determination. 83Mr Kinney acknowledged that he had no medical qualifications and had relied on the medical evidence of Dr Casolin and A/Professor Glozier. He did not know whether Dr Casolin has seen Mr Maklouf himself. He did not examine all the instances of Mr Maklouf's sick leave only those that coincided with poker tournaments that he attended. 84In relation to Allegation 8, Mr Kinney relied on the evidence Mr Maklouf provided to A/Professor Glozier that to go to these tournaments he had to win entry prior to that and also flights had to be booked etc. It seemed to him, on the balance of probability, highly unlikely that you could see your doctor today and be in the tournament on the same day. He acknowledged that it would be possible to book accommodation after you arrived. 85He considered that the alternative explanation put forward by Mr Maklouf "on the balance of probability was unlikely". 86He agreed that as Mr Maklouf declined to attend a disciplinary interview any opportunity of seeking further clarification was removed. Mr Maklouf did not provide any documentary evidence from airlines or booking agencies that might have supported any conclusion that he could decide to go to a tournament after seeing the doctor on the spur of the moment. Mr Kinney said he did take into account Mr Maklouf's written response. 87Dr Hanna has been Mr Maklouf's general practitioner for a number of years and had known him since he was five years old. He confirmed that he had issued the various Medical Certificates that Mr Maklouf had provided to RailCorp (as referred to in the allegations). He also confirmed the medical records of Mr Maklouf as provided under a Summons for Production issued pursuant to s.165 (3)(c) of the IR Act by RailCorp. 88Dr Hanna was taken through each of the medical certificates issued to Mr Maklouf and the corresponding notation made in Mr Maklouf's 'Progress Notes' as to his symptoms, and the diagnosis given. His evidence in relation to those certificates was as follows: * 10 - 15 August 2010: * He confirmed Mr Maklouf had "Joint pain. While playing soccer", was prescribed Nurofen, could not recall him limping, the examination indicated restricted movement which meant when he pressed on the joint it was hurting, and tenderness. There was no record of excruciating pain. The records were generated from the Medical Director which had a click on button but he would type additional notes if necessary. Unless pain was severe he wouldn't type that. He was not aware Mr Maklouf was going to fly to the Gold Coast for a poker tournament. In his view he wasn't really fit to fly, he'd given a certificate saying he was unfit for work so he definitely was unfit to travel by aeroplane. He did not think it was the kind of injury that would benefit from physiotherapy and didn't ask for an x-ray. * 8 -10 October 2010 * He agreed his notes said "sore throat, throat not red", but that was not always able to be seen, no temperature as he would have recorded that, and he prescribed rest, drink some fluid and Panadol. He prescribed four days, as the best treatment was to go and rest, meaning physical rest, staying at home and perhaps in bed. He agreed that he did not anticipate that Mr Maklouf was going to be flying to Melbourne and did not think that the best treatment. * 25-27 October 2010 * This had been issued by Dr Abdelwahab who entered no notes at all. Dr Hanna said that this was an insufficient record and should not have been done like that. He did not know what happened that day. How did we know he was sick? What sickness was it? There's not enough record at all. * 10 - 17 November 2010 * Dr Hanna could not recall much, but Mr Maklouf was depressed, had a problem at work and said "I can't go back, I'm going to cause a problem there, so let me - let me have a few days off to calm down". That was why he thought he issued the certificate. He did not tell him he was flying to the Philippines to compete in a poker tournament. He thought he was fit to go, if he was depressed going there might help. He did not know very much about poker tournaments. he was briefly taken to A/Professor Glozier's Report. He thought going to the Philippines for a holiday would be okay and that if someone said they had a problem at work and was going for a holiday it would be beneficial but he didn't know about the excitement about the poker. He had no idea. He did not refer him to a psychologist or prescribe sleeping tablets. or require him for a follow up examination - if he didn't get better or got worse he would come back. 89Dr Hanna acknowledged that he had been contacted by Mr Kinney by telephone and asked him if Mr Maklouf was fit to go to poker and he told him he could not give that information unless mr Maklouf gave him that right. 90When asked if Mr Maklouf was fit to attend poker tournaments on each occasion he said he responded as follows: A. I don't think the first two instance the flu and, I don't think that he should have been travelling because the, the treatment which was given to him was rest, plenty of fluid and Panadol. But the depression mood, I, I don't think that the - I think it would have been travelling - I, I think it's maybe therapeutic treatment that he will go and forget about it. 91He confirmed that the two instances included the occasion involving the hip and that he could not comment on Dr Abdelwahab's certificate. 92While Dr Hanna acknowledged that he "really knew" Mr Maklouf he had not described to him what he did at work at the railways but knew he had been working there a long time. He was not aware that Mr Maklouf was a shift worker. 93He could not recall him complaining about hip pain before but acknowledged that there were records of x-rays in 2007. 94He agreed that there were a number of occasions (five) when Mr Maklouf had presented with a sore throat or URTI (upper respiratory tract infection) and that he would have given a medical certificate on that date. He did not back date certificates. He wouldn't think about referral to a specialist, he would do blood tests first. He considered that if someone had a sore throat then they would need three days off work - the recommendation was rest, as they could not give antibiotics for a viral infection. 95He was not aware of whether Mr Maklouf always followed through with his prescriptions of rest, fluid and Panadol. 96A/Professor Glozier indicated that when he wrote his Report on Mr Maklouf he had not seen the medical records of Dr Hanna but had seen them since. Having reviewed those records they did not change his Report in any material way. He had asked Mr Maklouf specific questions and what he had seen didn't alter the responses to those questions. 97Mr Maklouf did not mention anything to him about hip pain, but it was not unusual when people had made lots of presentations to a GP that they did not recall what the presentation was for. Mr Maklouf told him that around August when he went to the Gold Coast he was going off sick, he went to the doctor, he was sleep disturbed, not managing his shifts well, was tired and wanted a couple of days off. He also did not mention that he had a sore throat and said that around those times he was getting somewhat nervous, tight in his shoulders and feeling trapped as those tournaments approached. 98Mr Maklouf had not told him that he was sick and run down over a five month period from June to October. He said he had a long term dislike of shift work - "it gets to you in the end". That was not uncommon. he had told him that there was some anxiety earlier in the year around house renovations that caused him some problems. A/Professor Glozier said that he specifically asked Mr Maklouf about pervasive conditions as it was important for him when making a psychiatric diagnosis to understand whether people had symptoms that presented over a pervasive period of time in order to make a diagnosis. 99He was provided with a Position Description for Mr Maklouf and he was of the opinion, having interviewed him, that he did have a few intermittent symptoms which occurred around or just coming up to a tournament and it would occur during the tournament, but was very intermittent and certainly did not meet the severity criteria, or duration criteria, for any psychiatric sleep disorder diagnosis. There was no such psychiatric or sleep disorder that would have affected his ability to do his role. 100Mr Maklouf did not discuss with him in detail the reasons for him travelling to the Philippines tournament. He said that he came second overall in the ANZPT and was rather pleased about that and that bought him into the tournaments for the following year and he described number of plans for the following year, and also managing what he might do around work and dealing with those issues to enable him to attend that tournament. 101A/Professor Glozier acknowledged that he was given a list of when Mr Maklouf was absent and that not all of those absences coincided with poker tournaments. He agreed that that didn't rule out other conditions that would warrant him taking sick leave, that was not reported to him. He did not examine any other physical reasons he might have, and Mr Maklouf did not volunteer that. 102A/Professor Glozier agreed that shift work could have an impact on sleep patterns but that the best shiftwork roster was actually within a rotating roster where you work three days of morning, three days evening, three days night and had a break. It was the "highly chaotic ones" that were quite difficult. A few changes were good, even if changes were dramatic, fewer changes could be better. Mr Maklouf told him he was on a rotating shift pattern. He did not consider that was chaotic, it was standard. 103The Board asked A/Professor Glozier whether in terms of stress, looking at the stress of someone who was not happy with their work because it was mundane and boring as compared to the stress that might arise out of a highly competitive activity, whether that would in itself creates stress or contribute to stress. A/Professor Glozier responded as follows A. Well, (a) yes it does and (b) Mr Maklouf was quite - was very candid with me that actually the most stressful thing that he did was play poker tournaments. He found them emotionally draining, he was knackered, he needed to go and relax. They're far more stressful than any other aspect of his life. 104Dr Casolin, RailCorp Chief Medical Officer, was sent an email by the RUI setting out the circumstances of the matter and it was he who then requested Mr Maklouf's referral to Medibank for an independent medical assessment which was carried out by A/Professor Glozier. Dr Casolin then reviewed the 6 page Report of A/Professor Glozier in which, inter alia, responses were provided to the following four (4) specific questions as requested by Dr Casolin: Does the employee suffer from any kind of psychological condition? If so, is it likely to have warranted sick leave? What treatment is required? Is there any impact on his safety as a category 2 rail safety worker? Are there medical restrictions? How does the current medical status affect his ability to perform the role of duty manager? (Short and long term). 105Dr Casolin stated that he considered A/Professor Glozier's response to the second question to be very relevant and set that out in his statement as follows: A." From his history today I cannot see any reason why the symptoms he reports warrants taking sick leave. Certainly the stressors of performance, travelling to a tournament and taking part would appear to be the primary cause of any symptoms he is experiencing as they abate when a tournament is finished and he is able to return to work. They do not occur to any clinically significant degree between tournaments. As Mr Maklouf acknowledges it is "no coincidence" that his sick leave has exactly encompassed the times he has attended a poker tournament in August and twice in October 2010. There was note of a further tournament in the Philippines in mid-November mentioned in the e-mail trail. Apparently he obtained sickness certification from his GP for 10-17 November having applied for leave to attend the tournament which was declined. One would have to assume that there was a similar pattern explaining his absence." 106Dr Casolin stated that in his opinion as RailCorp Chief Medical Officer the claims by Mr Maklouf were not genuine and that this opinion was supported by the evidence in A/Professor Glozier's Report. He was not prepared to accept the medical certificates supplied by Mr Maklouf as genuine as he had admitted he went to compete in poker tournaments during this time. He further admitted to A/Professor Glozier that he deliberately presented to his doctor to obtain medical certificate so that he could attend poker tournaments. In further support of this A/Professor Glozier noted -"Compared to the adrenaline, anxiety and tension of poker he describes his work as mundane and routine". Dr Casolin considered that the appropriate course of action in this matter was for it to be dealt with as a disciplinary investigation in accordance with the RailCorp Code. 107Dr Casolin acknowledged that he had not seen a copy of Mr Maklouf's GP's records at the time of making his statement but he had seen them since and they did not change his opinion in any way. He said that if he had been aware of other complaints as set out in the records (knee pain, sore throat) he would have asked for those to be specifically considered The information he had at the time was that the absences were stress and mood-related. There was a discrepancy there and he would have asked for that to be explored. 108As to the validity of the certificates being genuine his opinion had not changed, because the certificates were obtained for the purpose of attending poker tournaments and the reason that was given to the doctor for the purpose of obtaining a certificate was not particularly relevant. He had no comment in relation to the periods covered by the certificate other than the certificates were coinciding with the dates in the poker tournaments. He thought it was possible that a certificate for a sore throat would cover three days - a sore throat was a bit non-specific and there could be other symptoms associated with accompanying influenza etc., but he would expect that those sort of symptoms would be noted in the medical records. 109Dr Casolin said that from his experience the vast majority of medical certificates presented were for illnesses that did not have any visible external manifestations that the doctor could see. When a person presented for a certificate the doctor tended to be very reliant on the history provided by the person and generally accepted what they were told in good faith. The Medical Board guidelines advised doctors to be very cautious when relying on information for which there were no objective signs that they could measure. In this case he didn't believe that the doctor was fully aware of the circumstances, why the sick leave was being granted and the doctor was likely to have just accepted what he was told. 110He acknowledged that it was not a requirement of RailCorp Policy that an illness had to be specified on a medical certificate. He had also never personally examined Mr Maklouf, had not met him and had no knowledge of his health history other than what was presented in the records. 111Based what he had read in A/Professor Glozier's Report, he had asked Mr Maklouf to identify any specific psychological or physical health problems and the response was that it was no coincidence that the sick leave coincided with poker tournaments so he thought that issue had been covered by A/Professor Glozier. 112Dr Casolin was taken in some detail in cross examination through the medical reports in Dr Hanna's records. He maintained that it was beyond coincidence that the certificates in question coincided with poker tournament dates. Notwithstanding that he might have come back a day earlier on one occasion, when one looked at the "big picture" it indicated to him that the history that was provided was questionable. 113He indicated that he could tell from the records that Dr Hanna had known Mr Maklouf for some time because it extended beyond just these dates. He thought that if someone was a regular patient a doctor would trust what he was told. A doctor was entitled to write a certificate based on the information that he was given. 114He agreed that a person could be unfit for work but fit for other things. It was false and misleading if the information that the doctor based the certificate on was not complete and correct. 115He went on to say that if a person had a medical condition, if they were actually sick and unfit, then they were unfit to work. But in this situation the issue was that reason the certificates were being requested, as far as he knew, wasn't being put to the treating doctor and the treating doctor seemed to have, in good faith, issued certificates based on the description of symptoms. He felt that given the episodes where this occurred, and based on the other information mentioned previously, it was unlikely that Mr Maklouf was actually sick on those dates. 116He also considered that if Mr Maklouf woke up in the night experiencing excruciating hip pain and restricted movement in his leg, as he described in his statement, and so that he called in sick, and was suffering from a sore throat on the other occasion that rendered him unfit to work, he did not think he should have hopped on a plane and attended poker tournaments interstate and overseas. If someone was too sick to such an extent that they could not come to work, it would certainly make it unwise and reckless to be going to something else if you really were sick. He also felt that if Dr Hanna had generally indicated in relation to a sore throat that the best action was rest, fluid and Panadol, then hopping on a plane and going to a poker tournament would definitely be at odds with that suggested action. 117Mr Maklouf stated that his tasks as Duty Manager varied depending on what shift he was on. If rostered on day shift with other employees, he'd be performing more supervisory and managerial tasks, however, if rostered on night shift, he was usually the only staff member rostered on. This meant that he performed tasks that would be performed by other station staff during the day shift. In particular on night shift he was required to control the trains as they approached and left the station on four platforms. The majority of his shifts were night shift (11 pm to 7 am). he went on to describe a typical night shift in terms of the duties he would normally perform. 118He stated that he was also a poker player. Due to a leg injury in 2007, he no longer played touch football or other sports on a social basis and became interested in poker and found it helped him relax. He generally played on-line, however his performance in on-line poker allowed him to enter tournaments - some of which were relevant to the Allegations before the Board. 119He stated that in order to compete in these poker tournaments you must either qualify and win a place through performance on-line or in other tournaments, or buy your way in. He went on to describe the way in which tournaments would run and indicated that one did not have to be there the whole time and could make a decision to play at any time over the course of the tournament. 120 During 2010 he was performing very well in on-line poker tournaments and because of this won entry into tournaments held in Sydney, Canberra and Queenstown. However in relation to the tournaments he attended in relation to Allegations 1 to 6, he did not have automatic entry to these tournaments and maintained that he made the decision to attend these tournaments after he had seen a doctor and had been deemed not fit to attend work. He had performed well in tournaments and was a contender for the Australia New Zealand Poker Tour Player of the Year, but stressed that his performance in earlier tournaments did not guarantee him a place in other tournaments held during the year. If he was to attend the tournaments on the Gold Coast, Melbourne and Darwin, he had to pay his fare, accommodation and entry fee and it was entirely up to him to choose to enter these tournaments. He was able to enter them on the day and did not need to submit an entry form, or pay a fee, in advance. 121In late June 2010 he had not been well and had attended Dr Hanna at the Guilford Medical Centre on two occasions. He was run down, not sleeping well, with a sore throat. As a Rail Safety Worker he was aware of the importance of not attending work when fatigued and on these occasions judged it best to stay home and rest. When he returned to work in early July, he was still not fully fit and when he saw his Station Manager John Singh, he commented that it looked like he was getting sick. When he explained to him that he had been sick for over a week, SM Singh replied that he thought that Mr Maklouf was playing poker but he had not been playing poker at the time. 122Mr Maklouf stated that prior to the Gold Coast, Melbourne and Darwin tournaments, he had competed in a tournament in Queenstown. He had previously applied for 'out of course' leave to attend that tournament on 17 June 2010 (the tournament was running from 17 - 25 July) and had requested leave from 14 July 2010. His Station Manager advised him on 13 July 2010 that his request for leave had not been approved so he sought a review of this from the General Manager, Mr Darren Sloane and left a message for him to call him back, but he didn't call. He was extremely disappointed and frustrated by this as he had provided ample notice of his intention to take leave and had to make arrangements to travel to Queenstown. He decided not to waste his airline ticket and went to the tournament anyway, leaving on or about 19 July 2010. He performed well in Queenstown, returning to work on 26 July 2010. He did not take sick leave to attend the tournament and did not at any stage go to Dr Hanna to request a medical certificate to cover his attendance and try to claim these days as leave without pay. 123Mr Maklouf acknowledged in hindsight that he should have handled his frustrations within the workplace better and sought assistance in trying to obtain a fairer consideration of his requests for leave and notifications as to the outcomes and should not have just left to go to Queenstown. He also acknowledged that he should have listened more to Dr Hanna and that when he told him to rest, take fluids and Panadol he should have done exactly as he said rather than travel interstate to play poker. 124He also described in his oral evidence what 'out of course leave was' and explained his experiences of obtaining such leave, which he indicated was extremely difficult and he felt unfair. 125Mr Maklouf provided specific responses to the 8 Allegations in his written evidence as follows: * Allegations 1 and 2: * In late 2007 he was diagnosed with having an abnormal junction in his right hip joint (Exhibit 4-1)and had also been referred to a specialist. The diagnosis did not prevent him from carrying out his duties but at times he could be in great pain if, for example, he bumped his leg or hip. * On a day off on 9 August 2010 he was kicking a soccer ball around with his nephew, didn't know what he did, but woke up at 4:00 am on 10 August 2010 in excruciating pain, rang work about 6:30 am and told them he was sick and unable to work. He went to the Medical Centre and saw Dr Hanna, he was limping - and continued to limp for some days afterwards. He explained what had happened to Dr Hanna and was provided with a Medical Certificate and prescribed Nurofen for the pain. * He was not fit to attend for his RailCorp duties because of his restricted movement ability, he was on night shift and had to be on the platforms and move between the platforms, there was a lift, but no guarantee that he would not have to walk up and down stairs or be called upon to assist passengers. When he was the only person rostered on he was also the first response for any incident on the platforms, or on a train. He believed at the time that he would not be able to carry out his duties should such a situation occur. * The medical certificate he produced did not disclose the nature of the illness or condition, as neither he or his doctor had to disclose the nature of the illness, so nothing was included on the medical certificate. * There was a poker tournament held on the Gold Coast from 10 - 15 August 2010, he had not intended to attend this tournament, he had not won automatic entry but as he was not able to attend work he decided on 11 August 2010 to enter the tournament and flew up that day. He was eliminated from the tournament early on 14 August 2010 and flew home that day. Although he had been at the tournament, he was still limping, had restricted movement and did not return to work until 18 August 2010. * He maintained that at all times during his absence from RailCorp, he was not in a position to perform his duties because of his health and rejected any allegations that he submitted a false and/or misleading medical certificate to RailCorp. Allegations 3 and 4: * He had already arranged with the Workforce Allocation Centre to have Friday 8 October 2010 off, as he had been invited to a friend's barbecue. When he woke up that morning he was not feeling well, went to see Dr Hanna who prescribed bed rest, fluids, Panadol, giving him a medical certificate until 11 October 2010. As with previous medical certificates, the nature of his illness was not stated. He went home, went to bed early, and did not attend the barbecue. * There was a poker tournament in Melbourne from 8 - 11 October, he had not intended to attend, but decided on 9 October to go anyway, flying down that morning and entering the competition as soon as he arrived. * He admitted that in hindsight he should not have gone to the tournament. He was not physically well, unable to concentrate and eliminated from the tournament within 3 hours of play. He travelled back home on Saturday afternoon. * When he saw Dr Hanna he did not know he was going to participate in a poker tournament, so did not ask him whether he would be fit to travel or fit to compete. Even though rest, fluids and Panadol was prescribed, he decided he was fit to play poker but realistically he was not. He returned to work on 10 October 2010, even though not fully fit. Allegations 5 and 6: * He was still feeling rundown, stressed and fatigued, was getting tired and frustrated with shift work, particularly doing night shift on his own. In late October he was exhausted, couldn't sleep and went to the doctors on 25 October and saw Dr Abdelwahab as Dr Hanna was not available. * Dr Abdelwahab provided a medical certificate to cover his absence from work from 25 - 27 October 2010 and he recalled discussing with Dr Adbelwahab whether he should prescribe some medication to help him sleep. When he had taken such medication previously, the side effects left him extremely lethargic and as a result, no medication was prescribed. * On 26 October he decided to try and go to Darwin, catching an afternoon flight, arriving around midnight, played on 27 October, did not perform as well as he could have, being eliminated on 28 October. As a spur of the moment decision, he decided to enter into the teams' event that was held on the evening of 28 October. He returned home on 1 November 2010, going back to work on 2 November 2010. Allegation 7: * In October, prior to going to Darwin, he had already put in a leave application for some time off in November. Through an online competition, he had won a place at a poker tournament in the Philippines, wanted to attend and was also going to take this time to rest away from work. As the tournament was going to be held at a health resort, he believed he would be able to use the time he was not playing poker to try and relieve his stress and fatigue. * At around this time he had been told by one of the CSAs at Granville, who had been told by the SM that he was going to be the subject of a disciplinary investigation. The CSA did not want him to say anything at the time, being afraid of how the SM might react if he found out that he'd been told. * He was informed that his leave request was declined in early November, contacted his CSM Marcus Burt, asked him to re-assess his application but did not hear anything from his managers about the re-assessment until 9 November 2010, the day before he was due to go on leave. He was informed by telephone by his Acting SM Alex Tabone, that his leave had been declined and he was to attend Mr Burt's office before start of shift on 10 November. He believed he was going to be given the disciplinary allegation letter. * He believed that, as a result of both having the leave denied and told to report to Mr Burt, he suffered an anxiety attack. He was extremely stressed and went to see Dr Hanna, explained his situation about work and was given a medical certificate because he felt he could not go back to work and needed time away from the Station. * While away at the tournament he took advantage of a number of therapeutic treatments offered at the resort. He denied any allegation he was not suffering from significant stress at the time; and believed the lack of information given to him regarding his leave, and the knowledge that he was going to be put under investigation added to this stress. Allegation 8: * With the exception of the tournament in the Philippines, he hadn't given any commitments or made plans to enter those tournaments until after seeing his doctor and being judged unfit for work. In relation to the Philippines tournament, he believed he was extremely stressed resulting from the delay taken to firstly refuse his application and then the refusal to re-assess it. 126Mr Maklouf was also taken in cross examination to each of the four incidents the subject of the allegations in some detail and also to other occasions when he had gone to poker tournaments and essentially confirmed the circumstances of his attendance at those tournaments as detailed in the Background and Chronology above. 127Mr Maklouf maintained that in his written response to the allegation letter he did not mention that he was suffering from hip pain or a sore throat or had trouble sleeping as he did not know he had to answer each allegation specifically. 128Mr Maklouf also made specific responses to Mr Kinney's Investigation report in his written evidence as follows: Medical evidence of Dr Casolin and A/Professor Glozier had been included but he was never examined by Dr Casolin in relation to the allegations and was unaware whether Dr Casolin ever spoke to Dr Hanna in relation to any of his illnesses in 2010, much less the one in November 2010 where he was diagnosed with stress and major depression. He had read the Report of A/Professor Glozier who he saw on 19 January 2011 and assumed that was because of the allegations into his conduct, not to determine whether or not he had a psychological or psychiatric illness. At the start of the session he recalled A/Professor Glozier telling him he would receive a copy of his Report but did not see this Report until receiving RailCorp's documents as part of his appeal. He recalled telling A/Professor Glozier he was finding it difficult to cope with working shift work, believed he was being unfairly denied leave and it was causing him stress. He didn't believe that he took him seriously in relation to the assessment. He had read the File Note of Ms Thelma Hancock, had not seen this File Note before its inclusion in RailCorp's documents and noted that she stated Mr Burt told her that he had failed to submit a leave request in relation to my absence for the period 19 - 26 July 2010. This was not correct as he had lodged an application for leave and it was his belief that it was dealt with by SM Singh and acting CSM Burt. He also disputed that he took "sick leave" in April when the Sydney tournament was on. He won entry to the tournament at the last minute and rang up and said he would not be attending for duty, did not at any point say he was sick, did not lodge an application for sick leave and did not submit a medical certificate. He also said he attended a poker tournament. He did not know why RailCorp's records, included in Ms Hancock's File Note, showed that. He was also concerned that the allegations made against him by Mr Burt that he was "having a few days off to celebrate a large win" were never put to him and this was never the case. He also noted from RailCorp's case that he had been placed on absence management on previous occasions. He had complied with all the conditions placed on him when this occurred. Dr Hanna's medical records for the period 2002 - 2012 (Exhibit 4-2) showed he had attended the Guildford Medical Centre on numerous occasions for treatment. Mr Kinney asserted he won entry to the Philippines tournament based on his performance in the "Player of the Year" competition. This was incorrect, as runner-up in the Player of the Year tournament he gained entry to 2011 tournaments. He won entry to the Philippines tournament prior to the Player of the Year competition being finalised. 129He maintained that it was not necessary to book accommodation in advance and that he didn't need accommodation on one occasion when he went to Melbourne. He would purchase plane tickets on the day he flew mostly on-line and through Webjet. He would just pack a bag and go. 130He said that when he flew down to Melbourne when he had a sore throat he didn't know how long he would be there, only played for three hours and then booked a flight home. He maintained it was not difficult to book on the same day as he would just hop on his laptop and book a flight. 131He indicated that in relation to the visit to Dr Hanna concerning his hip his mother drove him to the Doctor and his brother gave him a lift to the airport and that he had trouble walking along the airport concourse. Playing poker didn't require him to move around all he had to do was sit at a table and he did no more activity than he would have done at home where he had to walk up and down stairs. 132He also maintained that he did not tell A/Professor Glozier that he had disturbed sleep and tiredness etc. because each situation was not addressed specifically he just told him he attended poker tournaments while he was unfit for duty after he had gone to see his doctor. He had just made a general comment that (the sleeping etc) of what he was going through in those few months. 133He indicated that there were many reasons for his stress but was not trying to say he was more stressed that anyone else but when he came to deal with issues regarding obtaining leave and was not able to that only caused him more stress because the way it was declined was unfair. 134Mr Maklouf did not believe he was being treated fairly by his SM in relation to his out of course leave requests and his SM, who was not a shift worker, had taken 6 weeks leave the previous year. In addition, even when he submitted a leave request well in advance he was told that his request was denied within a week of being due to take it, this gave him limited opportunity to revise the request and try and work around staffing availability. He was also aware other Duty Managers were not always allocated shifts during that time and would have been able to cover him while he was away. There was a spare DM available. Being told his shifts could not be covered but hearing from others that they weren't allocated shifts only added to his frustration. His Station Manager was also aware of the reason for him wanting the leave. 135Mr Maklouf believed that despite his frustrations with his managers he had worked hard and tried to be a good RailCorp employee. He also relied on a collection of letters of support from colleagues who wrote when they learned that the DRP were considering dismissing him (Exhibit 4-3) 136Mr Maklouf stated that he had not had any disciplinary action taken against him during 15 years at RailCorp and did believe that this had been given due weight in the considerations of the investigation or the DRP. 137He stated that poker was a release, it was something he was good at and something he enjoyed. He was stressed and frustrated during 2010 and competing - both online and in tournaments - provided him with a means to feel better. While he should not have competed when he was sick, he was doing so because he thought it would make him feel better. 138In conclusion Mr Maklouf said that he had worked with RailCorp ever since leaving school, was not qualified to do anything else and, realistically, would not be able to rely on competitive poker to make a living. He was trying to pay off a mortgage and needed the security of an income. he asked the Board to find him not guilty of the Allegations against him. If he was found guilty of any of the allegations, he was willing to restore to Railcorp the pay received for that time. He believed RailCorp's decision to terminate his employment was harsh and given his record, other sanctions such as a suspension and being placed on a final warning, would be appropriate. Findings 139This 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 Maklouf. 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. 140Mr Maklouf 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 the conduct as alleged took place and secondly, to determine whether the disciplinary punishment imposed by RailCorp in relation to such conduct 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. 141The Board has very carefully considered all of the evidence, including all of the relevant documentation filed by the parties, as well as the submissions of the parties. 142The Board would indicate at the outset that it is accepted that Dr Hanna issued medical certificates in good faith, based on what Mr Maklouf told him. To that extent those medical certificates as referred to in the Allegations as issued by him have been genuinely issued. The Board is not able to make such a finding in relation to the medical certificate issued by Dr Abdelwahab without more evidence but he may also have believed he was issuing a genuine medical certificate based on what he was told by Mr Maklouf. 143However the Board does not accept, on the balance of probabilities, that Mr Maklouf was either completely truthful in relating his symptoms to Dr Hanna (for example in relation to his sore throat and the stress he referred to in November) or truthful in relating the seriousness of those symptoms (the hip) requiring the issuing of medical certificates for the periods as sought. 144In any event it was Dr Hanna's evidence that he was not aware that Mr Maklouf was going to be flying interstate to attend poker tournaments or that he was flying to the Philippines for the purpose of attending a poker tournament on the occasions on which he issued medical certificates attesting that Mr Maklouf had a medical condition and was unfit for duty. In relation to the first two certificates he issued (Melbourne and Gold Coast), he did not consider that he should have been attending as he was unfit for work and it was not the best treatment. As far as the Philippine's trip was concerned, he thought that it might have been "therapeutic treatment" to go away and forget about it (the stress issue) but was not sure about attendance at a poker tournament as he did not know anything about poker. 145Dr Casolin was of the firm view that Mr Maklouf's attendance at those tournaments on the basis of his reliance on the medical certificates that he was unfit for duty, meant that his claims were not genuine. A/Professor Glozier reported that he could not see any reason why the symptoms he reported warranted taking sick leave (stress etc. ) but referred to the levels of anxiety and stressors that Mr Maklouf indicated to him associated with competing and also "feeling trapped that he has to complete the day to day activities of his day job and does not have the freedom to go to the tournaments as he would like". 146The Board considers, on the balance of probabilities, that Mr Maklouf was fit for duty on the four occasions when he claimed sick leave and that he made a conscious decision not to attend for work but to attend poker tournaments. 147Whilst he may not have taken steps in three of those instances (the Philippines tournament was a pre-arranged package won at an earlier tournament) to make arrangements to attend those tournaments (Melbourne, Gold Coast and Darwin) until after he had visited the doctor and obtained a medical certificate (as he maintained), his intention in visiting the doctor was for the purpose of obtaining a medical certificate to enable him to be able to attend and claim sick leave. It was more that mere coincidence or a spur of the moment decision in the Board's opinion. 148The fact that Mr Maklouf had been placed under review in accordance with RailCorp's Absence Management Policy in the past, and as recently as March 2010, is very relevant to Mr Maklouf's circumstances as that required that he provided medical certificates for any absence from work. 149Mr Maklouf had attended a tournament in Canberra sometime in May to June using accrued days off and won a not inconsiderable amount of money ($63766) having come second. 150Mr Maklouf maintained that in relation to his subsequent attendance at a Queenstown, New Zealand, tournament in July that he gained entry to this at the last minute and rang up to say he would not be in and said he did not apply for sick leave and took the days as leave without pay. This is at odds with his evidence that he had applied for leave which had been denied, with such denial only conveyed to him the day before the leave was due to start, and as he had his ticket booked he decided to go anyway. 151The taking of leave without pay for this absence raised concerns for CSM Burt that Mr Maklouf was seeking to avoid the Absence Management Policy and resulted in his contact with Ms Hancock and the File Note she subsequently generated on 10 August 2010 (Exhibit 1-D29). Although Mr Burt was clearly incorrect in his belief that Mr Maklouf, being a gambler, had taken days off to celebrate after a big win, as Mr Maklouf did indeed attend the Queenstown tournament in New Zealand on those dates, this led RailCorp to Google Mr Maklouf who revealed that he has a 'Player Profile'. That showed he had participated in a tournament in Sydney between 21 to 25 April (coming sixth and winning $37,910). He was shown in leave records as being on sick leave on that occasion. The Board accepts that those dates were not subject of any allegations by RailCorp. 152It should be noted that the date of the File Note of Ms Hancock was the 10 August 2010 and followed a meeting with CSM Burt. One of the websites subsequently checked out by Ms Hancock showed Mr Maklouf was at the Gold Coast participating in a tournament at that very time (12 August). This led to his leave records being downloaded. 153Mr Maklouf had presented to Dr Hanna on 10 August with hip pain. He maintained there was excruciating pain and he was limping. Neither symptoms were noted in any additional notation that Dr Hanna indicated he was able to make during a consultation in addition to the automatic click on notes in the computerised medical records. He also could not recall Mr Maklouf limping. He did not refer him for any treatment. The tournament was from 10 to 15 August. Mr Maklouf said he decided to enter as he could not go to work and flew up on 11 August and was eliminated on 14 August. However he could not possibly have known beforehand if, and when, he was going to be eliminated or for how long he might be able to participate in the tournament. He did not return to work until 18 August, the implication seeming to be that this demonstrated the severity of his condition. However the Board notes that from his Roster records (Exhibit 1-N) that he was rostered off on 16 and 17 August and not due to go back until 18 August in any event. Dr Hanna did not consider that he should have been flying in a plane to the Gold Coast. 154In relation to his attendance at the Melbourne tournament on the 9 October 2010. Mr Maklouf had already arranged for Friday 8 October to be taken off (as reduced time) to attend a friend's barbeque but maintained he did not attend as he felt unwell, went to Dr Hanna where the records show he presented with a sore throat (but with no redness, temperature or other symptoms noted) and was given a medical certificate for four days. He contacted work on the morning of 9 August to advise he would be off sick and then flew to Melbourne to participate in the tournament at Star Casino but was eliminated that day and flew home returning to work the next day. He maintained he had not pre-planned this, made all the arrangements on the day and returned to work the next day because he felt better. 155Again this ignores the fact that at the time of going down to the tournament he did not know he would be eliminated on the first day and indeed a report in the Sydney Morning Herald of the progress of the tournament (Exhibit 1-D14) referred to him as being one of the "hot contenders" in the ongoing race for ANZPT Player of the Year but being eliminated early on day one. Clearly this could not have been anticipated by Mr Maklouf who may have indeed stayed on longer if he had been more successful. Again Dr Hanna did not consider that he should have gone to this tournament. 156It was this return to work the next day (10 October), in spite of advising of a medical certificate from 8 to 11 October, that prompted the concern of SM Singh who in his email to CSM Burt about the circumstances of the absence observed: .... His certificate advises that he will be unfit for duty until 11/10/10 inclusive. Mr Maklouf was back on duty on the 10/10/10 after only one day. Either his doctor does not know what he is doing or Mr Maklouf is taking undue risks with his health. Please advise who will be responsible if Mr Maklouf's health deteriorates further while defying the doctors orders. Mr Maklouf handed in his forms on 13/10/10. Forwarded for your dealings. 157The Board also notes that on the 17 October, just one week later, SM Singh forwarded Mr Maklouf's request for 6 days of accrued public holidays for the 10 to 15 November 2010 (the subsequent trip to the Philippines) with SM Singh commenting that: Please be aware that during this period myself (SM Singh) and Duty Manager Sonia Bhalla are also clearing their annual leave. If this leave is granted it must be covered by Chatswood rostering Office. If rostering office can not cover than (sic) it will be covered as overtime. 158Mr Maklouf next presented to Dr Abdelwahab (in Dr Hanna's absence) on the 25 October (just two weeks later) obtaining a medical certificate for three days from 25 to 27 October with no notes whatsoever as to any medical history (apart from a blood pressure reading), contrary to the Guildford Medical Centre's procedures (as per the evidence of Dr Hanna). It was Mr Maklouf's evidence that he was feeling stressed and fatigued and run down and having trouble sleeping and discussed sleeping tablets but was not prescribed anything apparently. However the Board also notes that immediately following these three days sick days (which were day shift coming off night shift) Mr Maklouf had 3 rostered days off and one ADO which meant four days altogether. 159The Board would have thought that if Mr Maklouf did indeed feel stressed and run down then he had, in a very short while, four straight days coming up in which to address those issues. Instead he flew to Darwin to compete in a poker tournament being eliminated from individual competition on day 2 but staying on ("on the spur of the moment") to successfully team up with another player in the teams' event and returned home on the 1 November (the last of his rostered days off) going back to work, as scheduled on 2 November). 160Mr Maklouf was subsequently denied the leave he sought for 10 to 15 November 2010 (he was rostered off on 16 November) to go to the Philippines tournament. This was a pre-arranged trip he had won on-line which included airfares, accommodation and entry (to the value of some $5000). He maintained that as a result of the stress of hearing he was under investigation from a co-worker, being unfairly denied the leave, being told to report to CSM Burt the next day (10 November) etc, he suffered an anxiety attack and went to see Dr Hanna. He also maintained in his evidence that he was suffering "major depression" (not noted on Dr Hanna's records). He sought a medical certificate for 10 to 17 November because he was extremely stressed, couldn't go to work and needed some time away from the Station. He also thought he could take advantage of the therapeutic treatments available as the tournament was being held in a health resort. He also evidently sought the assistance of a sports psychologist whist there. Whilst Dr Hanna agreed that some sort of "holiday" would have been of assistance, again he did not know Mr Maklouf was attending a poker tournament. 161The meeting with CSM Burt was to have been for the purpose of giving Mr Maklouf the first allegation letter (dated 5 November) containing the first six Allegations. 162The Board considers that Mr Maklouf intended to attend that tournament come what may. Further any person staying at a health resort, whether for a private stay, conference or whatever the reason would be highly likely to take advantage of treatment/services available. If Mr Maklouf really was stressed and needed a break then simply staying at the resort and resting and taking advantage of the therapeutic treatments available but not participating in the tournament and thus avoiding the stresses and "heightened anxiety and fatigue" of competing in a poker tournament (as he had discussed with A/professor Glozier) may have been more beneficial to any stress he was suffering. 163Mr Maklouf considered that he was unfairly treated in having his application for leave refused given that other employees (such as his Station Manager) had been granted out of course leave previously (of six weeks). In seeking to have his application reconsidered he clearly stated the purpose for the leave, the dates were inflexible and that if he was denied leave to go he was being denied a "chance to win a life changing amount in prize money", plus he thought that "RailCorp encouraged a worklife balance". 164The leave Mr Maklouf was seeking to access was taking his participation in poker tournaments way beyond maintaining a reasonable "worklife balance" on any view. 165The Board considers that RailCorp were fully entitled to consider operational requirements in denying Mr Maklouf the leave he sought in November 2010. While RailCorp can certainly be criticised for the delay in responding to Mr Maklouf until the last minute (as it did earlier in July) the Board considers that this would have made no difference to the outcome and it is highly probable Mr Maklouf would have gone to those those tournaments in any event. 166However, given his absences thus far the Board is surprised that Mr Maklouf even considered that he ought to have been granted such leave in the first place. 167In the space of some eight months from April to November 2010 Mr Maklouf had accessed either sick leave (5 times), unpaid leave (once), or accrued public holidays (once), to attend and participate in some 7 poker tournaments. In just the four months spanning August to November he had taken some 17 days sick leave in addition to other sick leave taken earlier that year (with at least one period coinciding with the tournament in Canberra). 168Frankly the Board is amazed that Mr Maklouf considered that it was okay to go off sick and attend poker tournaments when he had been advised by his doctor (based on what he told the doctor) that he was unfit for duty yet he considered that he was fit enough to fly and compete in what must be a highly charged and competitive environment playing for potentially serious financial reward. 169The Board acknowledges that not all sick leave taken coincided with poker tournaments (but there was no firm evidence at to which occasions these might have been) and there may have been indeed genuine sickness on those occasions. But when Mr Maklouf's overall absenteeism record for 2010 is looked at (based on his Roster and the leave records in evidence) his attendance was frankly abysmal and would have warranted some close attention from an employer in any employment situation. 170By this time there must have been not only a real concern within RailCorp as to the genuineness of the sick leave he was taking, and but also a concern as to his ability to perform the duties of a Duty Manager. 171Given the reasons he advanced for his absence on 10 to 17 November 2010 in his 1 December 2010 written response to Mr Kinney it was hardly surprising that RailCorp referred him for psychological assessment to Medibank who nominated A/Professor Glozier to carry out that assessment. Perhaps if he had mentioned the other health issues he maintained he had suffered in 2010 a more complete medical assessment may have been able to be made. 172It is also apparent from his discussions with A/Professor Glozier (as referred to in his Report) and the poker websites referred to in Mr Kinney's Investigation Report that by coming second in the ANZPT Player of the Year Mr Maklouf had won sponsorship and entry to some eight tournaments in the Asia Pacific region in the following season (2011) and had already begun sorting out how he might apply for leave, had a conversation with his Area Manager who was "currently supportive," but had been advised to concentrate on his RailCorp job until he was able to win big enough to consider leaving his job. 173There was no evidence whatsoever before the Board about what Mr Maklouf may or may not have done in relation to these tournaments in 2011, or any absences in 2011 that may have been relevant. He was obviously aware as from the end of November 2010 that he was subject of a disciplinary investigation concerning allegations as to misuse of his sick leave. 174The Board notes however that there was no undertaking given by Mr Maklouf that this sort of conduct would never be repeated, only an acknowledgement in hindsight that he should not have gone to the tournaments he attended and complied with doctors' instructions. 175The Board is also concerned that in holding the responsible position of Duty Manager Level 3 in which he was required to "assist monitoring the performance, development and counselling of staff" (as set out in the relevant position description at Exhibit 1-C) Mr Maklouf was setting an extremely bad example to those staff members. 176The Board acknowledges that Mr Maklouf had 14 years unblemished service (apart from attendance issues which had attracted no disciplinary penalty). However with such length of service at the responsible level of the position he held there comes an attendant increased expectation that an employee is fully aware of the RailCorp Code and relevant Policies that he has to ensure others follow, and therefore a greater expectation that such an employee will also follow the Code and relevant Policies. 177The Board also acknowledges that Mr Maklouf believes playing poker is something that he is good at and brings him enjoyment (apart from clear financial rewards). Whether it truly helps him to relax, given the evidence as to the stress and anxiety he experiences leading up to, and during a tournament and which then abates, the Board considers problematic. 178Nevertheless using his sick leave to attend such poker tournaments was misconduct of a serious nature and the Board makes a formal finding of such based on the evidence. On the balance of probabilities the Board considers that Mr Maklouf was not either not unfit for duty on the occasions he claimed sick leave to attend poker tournaments or sought to gain sick leave over and above what was necessary (the hip) to enable him to attend a poker tournament. These actions were deliberate and pre-meditated. The allegations are sustained (with the proviso that Dr Hanna considered that he was issuing a genuine medical certificate to Mr Maklouf) 179The Board considers that in all the circumstances the punishment imposed by RailCorp on Mr Maklouf, although harsh is appropriate and does not intend to intervene in that decision. Order(s) The appeal of John Maklouf against the decision of RailCorp to dismiss him from his position of Duty Manager (TAB11/1420) 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: 30 April 2012