Transport Appeal Boards New South Wales Medium Neutral Citation: Selmes v RailCorp [2012] NSWTAB 20 Hearing dates: 18/06/12 Decision date: 23 July 2012 Before: Ritchie C Decision: Decision Catchwords: Long term Manager suspended without pay then altered to with pay, then subsequently terminated -Filed two Notices of Appeal- (1) to seek payment for the 10 day period he was without pay and (2) for reinstatement. Appellant had received items from a supplier -4 of which he placed at the respondent's disposal -also received a case of wine from same supplier at home address-distributed wine to friends and family-ICAC contacted appellant-the appellant contacted the respondent and advised what had occurred- His actions breached the Code of Conduct- Board took into consideration his discipline record, his lack of action in seeking the items and his contrition with respect to the matter. Appeal re TAB 1108/11 is disallowed, Appeal re TAB 19/2012 is allowed, appellant reinstated with conditions. Cases Cited: Broome v RailCorp [2012]NSWTAB 5 Category: Principal judgment Parties: Mr Gordon Selmes(Appellant) Rail Corporation of NSW (Respondent) File Number(s): TAB 19 of 2012 and TAB 1108 of 2011 DECISION Introduction 1On 5 August 2011, Mr Gordon Selmes( the appellant) filed an appeal in the Transport Appeals Boards (TAB 1108 of 2011) against his suspension without pay pending disciplinary investigation. The appellant sought to claim wages which he lost between RailCorp's ( the respondent) decision to suspend him without pay between 2 August 2011 and the change to suspend with pay on 12 August 2011. At the conciliation of this matter it was determined by Bishop C., that this matter be stood over pending the outcome of an investigation involving the appellant. 2The appellant filed another Notice of Appeal-Transport Discipline on 23 January 2012. The appellant had been terminated by the respondent to take effect from 27 January 2012. On his Notice of Appeal he ticked the box Guilty. A conciliation of the matter was held on 22 February 2012 but was not successful and a timetable for the filing and serving of evidentiary material was provided to the parties. The hearing was held on 18 June 2012 with the Decision being reserved. 3In his letter of termination dated 23 January 2012 the following allegation was expressed: Between 1 January 2009 and 31 December 2010, in your capacity as Team Manager, Civil Maintenance Depot, Wyong, you accepted gifts and/or benefits from suppliers to RailCorp ( including , but not limited to, NCH Pty Ltd trading as 'Mantek) in circumstances where such acceptance might have comprised or influenced you in your RailCorp capacity. The appellant was paid four weeks salary in lieu of notice. Respondent's and Appellant's Cases. 4It was the respondent's submission that the appellant commenced with the respondent in 1990 as a fettler and progressed to the position of Team Manager, Civil Maintenance at Wyong and held that substantive position at the time of his suspension and subsequent dismissal. 5On 1 August 2011 the appellant attended a meeting with representatives from the respondent . At the meeting the appellant informed the respondent's managers that he had received correspondence from the Independent Commission Against Corruption (ICAC) asking him to answer questions regarding his role with the respondent and his receipt of gifts from RailCorp suppliers. The appellant advised the meeting that he had received gifts from two companies. 6At this meeting the appellant advised that he had received ladders, water pressure washer and a movie camera. He had also received a case of wine, at his home address, which he had distributed amongst family and friends. 7The following day he was suspended without pay. Ten days later this was altered to being suspended with pay. 8On 18 August 2011 the respondent wrote to the appellant and the appellant replied in correspondence dated 24 August. In this correspondence the appellant expressed in detail the circumstances surrounding the items. He received a telescopic ladder, ratchet ladder and portable Gerni washer all delivered to the depot. A video camera was delivered to his home address. All of the above items were stored at the depot. 9 He explained that he had mentioned to a sales representative of NCH Pty Ltd trading as ' Mantek' that he had become a grandfather for the first time and the sales representative promised him a bottle of wine. The appellant gave the sales representative his home address. He wrongly believed that such a gift would be under $20 which was the guide limit set in the RailCorp Policy, Work Place Standards. A case of wine was delivered to his home address. He expressed that the acceptance of the wine was a serious lack of judgement. 10The respondent stated that the Code of Conduct was breached with respect to the Gifts, benefits or favours. Also there was breached the RailCorp Gifts & Benefits procedure. It stated that under the title Gifts which must not be accepted it highlighted gifts that must not be accepted under any circumstances from current ,past or potential supplier of goods/or services and described items branded with supplier's logos or brand names. 11Under the title Gifts which may be accepted it outlines the goods including gifts with a value of $20 or less from industry groups, other government agencies and not for profit organisations. 12Under the title Process for declining a gift and/or benefit (including hospitality) it outlines what an employee does stating that if the nominal value is $20 or less and has already been received, it may be destroyed or returned to the recipient. It also states that if you require advice or assistance about the best way to decline an offer of a gift or benefit, you should discuss the matter with your manager or with the Corruption Prevention Unit. The respondent submitted that the appellant breached the above policy. 13They stated that as a manager he was expected to" lead by example" and "to promote the highest standards of professional conduct." As part of his training the appellant had attended the Code of Conduct training and that he agreed that he had breached that Code. They stated that the fact that the gifts ( Ladders, a gerni, wine and a camcorder) were very different to the chemical cleaning products generally supplied by Mantek ought to have prompted the appellant to query the origin and intent of the gifts provided. His acceptance of what he thought was going to be a bottle of wine of less than $20 would still have been contrary to the Code because it was from a supplier. 14They stated that when the appellant did receive the case of wine, he should have acted by reporting the delivery to his manager or telephoned the RailCorp Corruption Prevention Unit and reported the delivery. 15The appellant stated that he contacted ICT to try and get a program put on the computer so he could use the camcorder to record problems and show to the Civil Maintenance Engineer or the Civil Maintenance Manager. When this could not work the appellant stated that he left the camcorder in a cupboard in his office. The respondent stated that ICT had no record of the appellant's call or any evidence that he sought to follow this up. 16It was the respondent's submission in response to the appellant's request to be allowed to retain his RISI Gold Card. Such a card is provided to staff who complete 30 years or more service and is entitled for life, except if the employee is dismissed. The appellant had not completed thirty years and had been dismissed. The appellant's Rail Safety Worker Card (RSW) was taken from him on termination. The respondent submitted that the removal of the RSW card is not an appealable decision within the scope of sections 43 and 37 of the Transport Administration Staff regulation (2005) . 17The appellant filed a statement and stated that he had been an employee with the respondent since 1990 and over the years and progressed to the position of Team Manager, Civil Maintenance at Wyong. He was terminated on 27 January 2012. 18 In his statement he said he received a letter from ICAC on 11 July 2011, requesting information as to gifts that he had reportedly received from a supplier called Mantek. He replied to that statement on 20 July 2011 stating that he had received the following: Telescopic ladder Ratchet ladder Portable Gerni Washer Video camera He stated that all of those products were kept in the depot and utilised where practical. 19He stated that at the birth of his first grand child he was promised a bottle of wine to celebrate the birth from a sales representative of the named company. He is not a wine drinker and did not give it another thought. When a case of wine arrived he said he immediately felt uneasy and gave it away to friends. He acknowledged he should have returned it or completed a gift register but as he gave it away that quickly he did not feel it was no longer an issue. 20 With respect to the four major items received, he believed that they were part of a promotion offer and was not of any personal benefit or gain to himself. He stated that at no time did he seek gifts from a supplier but believed that the four items received became the property of the respondent. 21He recognised that his actions were not in accordance with the respondent's Code of Conduct and RailCorp Gifts and Benefits procedure. Consideration and Decision 22The appellant commenced with the respondent and or its predecessors in 1990. A review of his Disciplinary Advice History noted a minor offence of which he received a warning took place on 13 November 1994. One could therefore state that prior to the issue which resulted in his termination the appellant had a good disciplinary record. 23The appellant reacted to written correspondence he received from ICAC by reporting to his managers what he had received in the form of goods from a supplier. It was his submission that except for the case of wine, the other four items he believed were part of a promotion and were kept on the respondent's premises. He stated that he did not ask for the items nor seek to benefit from these items. 24 The receipt of the case of wine delivered at his home address he advised did take place. He stated that he was uneasy with this delivery and that he sought to distribute the contents to friends and family quickly. As correctly expressed by the appellant's representative this was an error of judgement. 25The respondent's submission was that all items, be it the four items located on the respondent's property and the case of wine, should have been returned to the supplier or brought to the attention of the appellant's manager or the Corruption Prevention Unit. 26It is clear by not reporting the acceptance of these items the appellant breached the Code of Conduct. The result of this failure to report was the termination of the appellant's employment. 27In considering this matter I have taken into account the appellant holding the position of a Manager and the responsibilities that incumbers. I have also taken into consideration that four items received ( two ladders, a gerni and a camcorder) were physically located on the respondent's premises and were available for use by employees to carry out their work. The items were there for all to see and were not hidden away. I have also taken into account the submission of the appellant that he did not actively seek the items but believed that they were part of a promotion. 28 I accept the appellant's submission that this matter can be distinguished from the Broome v RailCorp [2012]NSWTAB5 case, in as expressed above the appellant did not seek the items delivered, but that does not of itself absolve the appellant for his failure to notify his manager. The opportunity for potential conflict is ever present and managers have to be aware of this at all times. 29 I have also taken into consideration that the case of wine is at the lower end of the scale with respect to value. 30No evidence came before this Board with respect to any allegation that the appellant over ordered so as he would obtain the named items, or that he became compromised because of his acceptance of the items. 31The failure of the appellant not to act in accordance with the Code of Conduct with respect to the case of wine is of a substantial concern. The respondent is correct when they submitted that even if the wine was less than $20, it was not allowed to be accepted because it came from a supplier. 32 I have taken into consideration the appellant's Disciplinary Advice History in reaching a decision in this matter. I have also taken into consideration that it was the appellant who initiated the notification to the respondent as to what had occurred, and his full co operation in the subsequent investigation, and in my view his deep and honest contrition as to what had happened and what he had not done to comply with the Code of Conduct. 33With respect to TAB 1108/11, I accept the submission of the respondent in that they have the power to suspend an officer and that it was appropriate in this matter to protect the integrity of the pending investigation that the appellant not be present. 34The Board make the following Orders in relation to the appeals in TAB 19/ 2012 and TAB 1108/2011. Order(s) 1.The appeal in TAB 19/2012 is allowed. 2.The appeal in TAB 1108/2011 is disallowed. 3.The decision of RailCorp to dismiss Mr Selmes is set aside and he is to be reinstated to his position of Team Manager, Civil Maintenance at Wyong within 21 days from the date of this Decision. 4.Mr Selmes is to be deemed suspended without pay from the 27 January 2012 to the date he recommences work. 5.Mr Selmes is to receive a first and final warning and is to receive further education with respect to the Code of Conduct. 6.The continuity of Mr Selmes's employment with RailCorp is taken not to have been broken by the decision to dismiss him. D.Ritchie 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: 23 July 2012