Transport Appeal Boards New South Wales Medium Neutral Citation: Bhattacharya v RailCorp [2012] NSWTAB 23 Hearing dates: 02/07/12, 03/07/12 Decision date: 10 August 2012 Before: Ritchie C (Board) Decision: Catchwords: Appellant terminated-Notice of Appeal lodged-Appellant alleged to have engaged in unacceptable behaviour-appellant alleged to have sworn and exhibited aggressive manner at a female employee at entrance to a car park, in a car park, in a lift and in the building. Appellant said female employee had made a racist remark which he responded to. Board found that appellant had used inappropriate language towards female employee at various locations. Found that female employee had not made racist remark towards appellant. Female employee had been scared as a consequence. Board did not intervene in the termination-Appeal denied. Category: Principal judgment Parties: Sourideb Bhattacharyya (Appellant) Rail Corporation of NSW(Respondent) File Number(s): TAB 22 of 2012 DECISION Introduction 1Mr Sourideb Bhattacharyya (the appellant) filed a Notice of Appeal -Transport Discipline on 25 January 2012. 2 The appellant received written communication from RailCorp (the respondent) that he was dismissed from his position as Project Manager-Projects Division, Burwood effective from 24 January 2012. Issue(s) 3 The letter of termination alleged that: On 29 September 2011, you engaged in unacceptable behaviour by subjecting another employee, Ms Soula Vlahos, to bulling and harassment and/ or inappropriate behaviour. Particulars of the incident were then detailed including the locations of the alleged bullying, the actions of the appellant and the language that was alleged to have been said by the appellant. Respondent's and Appellant's Cases 4The respondent called a number of witnesses to provide evidence in this matter. It was stated that on 29 September 2011 Ms Soula Vlahos' vehicle was waiting at the entrance to the car park of 2-14 Elise Street, Burwood. The appellant who was driving a respondent's marked car, pulled up to the entrance of the car park on the left side of Ms Vlahos' car. When the roller door was open, the appellant swerved in front of Ms Vlahos' car and drove to the entrance of the car park. Ms Vlahos sounded her horn and the appellant stoped his car got out and approached Ms Vlahos' vehicle window. A conversation ensured which the appellant engaged in unacceptable behaviour towards Ms Vlahos . The behaviour continued into the office lift and into level 4 where Ms Vlahos worked. 5Ms Soula Vlahos filed a statement and was subject to cross examination. She stated that she had been working for the respondent since 1988 and has held her current position of Business Support Officer since 2004. She stated that her witness statement was based on a memorandum that she provided to Mr Tsiros on 30 September 2011. 6She stated that on 29 September 2011, she drove her car into the driveway to the car park at 2-14 Elsie St, Burwood. She swiped her access card to activate the roller shutter to enter the underground car park. While waiting she noticed a car pull up to the left of her car. Whilst she was waiting for the roller door to open she placed her mobile phone and other items into her handbag. When the roller door had completely opened she said that her car started to roll down towards the car park and the car to her left cut her off swerving in front of her. It nearly caused a collision, she reacted by slamming on the break, activating her horn and raised her arms up in a questioning manner. 7She said that the car had a RailCorp logo on the side. The driver of the vehicle was of an Indian appearance wearing business attire. She did not remember meeting this person before. The driver got out of the car and said something similar to : " Fucking dumb bitch. Fucking stupid idiot. What were you waiting for the fucking shutter was open? You too fucking busy sending messages ?" 8She said she felt scared and thought he was going to hit her. He came towards her waving his arms about. He appeared very aggressive. 9She said that she told him to calm down and to stop abusing her. He replied : " Fucking stupid bitch. Poofter. Get out of the car." Because she felt scared she closed her window and locked the doors of her car. 10The driver returned to his car still swearing and wavering his arms around calling her: " fucking idiot, dumb bitch, poofter." 11He then drove into the car park and she followed. The driver parked his car on the second level and Ms Vlahos stated that she had to wait behind him while he parked his car. As she passed his car she said that he got out of his car and started running behind her car calling out: " Come on get out of your car." She said that she drove away. 12She parked her car on a lower floor. She said that she was quite scared and could not use her mobile phone because of the lack of reception. When she got to the lift she swiped her access card and pressed the button to call for the lift. She then noticed Tony Hope the Building Manager approach with another man. He asked her had she just been involved in an incident upstairs. She replied that she had and asked what was wrong with him. 13Mr Hope stated that he had witnessed it and asked was she okay. She stated that she had swiped her card and he tried to get in front of her. She said that she had not got the number plate and Mr Hope stated that he would. She queried whether this person would be in the lift waiting for her but Mr Hope said not to worry as he had already left. 14Mr Hope then left the area and Ms Vlalhos entered the lift. The lift stoped at level B1 and an Indian man got in and walked straight up to her with a smirk on his face. He pressed his chest up against Ms Vlahos which forced her to retreat into the corner of the lift. Ms Valhos stated that she told the person to get away from her. He moved away from Ms Valhos and swiped a pink plastic document and activated the lift and pressed level number 2. He then turned and yelled at Ms Valhos saying: "Fucking stupid bitch. You are too busy messaging on your mobile. The shutter was fucking open and I was waiting for five minutes, you fucking dumb bitch." The lift stopped at level 2 but the man did not get out . Ms Vlahos replied : " No I was not messaging on my phone . I have to wait for the shutter to come fully open before I go under it. Will you go we are on level 2." He replied: "Yes you were it was open for five minutes. You are fucking dumb." 15The male did not get out and the lift proceeded to level 4 where Ms Vlahos quickly got out and the male followed behind her yelling: " You are a fucking dumb bitch. You were on your mobile phone." Ms Vlahos replied to the man: " You are breaching all the code of conduct and I am going to make a complaint." 16She said that the male then backed away and became defensive. She then continued walking and the male followed and said that he was going to make a complaint too. Ms Vlahos replied that he could make a complaint and this was witnessed by other staff. He said that he wanted to speak to Ms Vlalhos' manager but she replied that she was the manager. 17She then swiped the access door and entered the office. She then called her work colleagues Zoobaida Zidan and Frank Bakiras and informed them of what had happened. 18She said that she then felt sick and nauseas and went to the toilet. She then contacted the Incident and Injury Hotline and reported the incident to her manager Mr John Tsiros. 19She said that the incident had made her feel anxious, shaken up and a bit shattered. A copy of her report of the incident made on 30 September 2011 was attached to her statement. 20Mr Tony Hope filed a statement and was subject to cross examination. He stated that he is a Building Officer based at Burwood. He has been in this role since February 2010. His primary responsibility is managing three buildings in the Burwood precinct. 21On 29 September 2011 he was on the corner of Elsie Street and the Public Laneway in Burwood talking with Michael Mateous who is a contractor with ICT. He said he noticed a car ( Ms Vlahos' ), stop at the garage of 2-14 Elsie Street. He said he saw her swipe the reader with a card to gain entrance into the car park. He then saw a second white car come down John Street and make a left hand turn into the driveway of the Elsie building. This car had RailCorp logos on the exterior of the vehicle. Instead of waiting behind the first car it pulled around the rear of the first car, in his view to get off the street. As the garage door was opening the second car drove around the first car which was stationery at the time. The second car drove to the entrance of the car park where a hump is located. He said he heard a screech of tyres as this vehicle stopped. He saw Ms Vlahos put her arm out of the car in a questionary manner. 22He then saw the driver of the second car get out of it and wave his hands about. Mr Hope did not know the driver and had not seen him before. He said he heard the male say words similar to : " You are a fucking mole." He then saw him return to his vehicle and drive into the car park. Ms Vlahos car then followed behind. He and Mr Mateous then followed the cars into the car park. He saw the first vehicle and the male sitting inside it. They walked up to another level and saw Ms Vlahos. 23Mr Hope stated that he asked Ms Vlahos what happened , and Ms Vlahos replied that she was waiting for the garage door to go up, and this guy pulled around her. She said that she asked the man " What were you doing you dope." She was not sure what he was going to do when he got out of the car and she wanted to make sure that he didn't follow her to see where she parked and damage her car. 24Mr Hope said that he would return to the other car and get his number plate so he could find out where he was from. 25He said that Ms Vlahos got into the lift and he went back to the car to locate the Toyota Corolla. The number plate was BG 92 NW. 26The following day Ms Vlahos contacted him and requested he send her an email as to what he had seen the previous day. During that conversation Ms Vlahos advised him that the other man had got into her lift and followed her to level 4 as he wanted to see her manager. She also said that she nearly asked Mr Hope to also get into the lift as she did feel threatened by the other man. 27Mr Michael Mateous filed a statement and was subject to cross examination. He stated that he was standing with Mr Hope on the corner of Elsie Street and the Public Laneway in Burwood having a conversation on the morning of 29 September 2010. He said he saw a female swipe access panel to gain entry into the car park. He noticed another vehicle with a make driver inside which was parked behind the female's car. The male driver was in a car that had RailCorp logos on the side. He saw the RailCorp vehicle drive in front of the other vehicle with the female. He believed the female driver was stationery at the time. The RailCorp vehicle blocked the other vehicle. 28He saw the male driver yelling quite loudly and angrily at the other vehicle. The male was using " fuck" on numerous occasions and with a very angry tone. He believed that at some stage the male driver had got out of his car and approached the female's vehicle. He did not remember the female getting out of her car. The tone the male was using was not very nice and he was talking down to her. He could not remember what he was saying but he did recall he swore at her on numerous occasions using "fuck". He did not recall if the female driver said anything to the male driver. 29He believed that the actions of the male far out weighed him being delayed by waiting for the female to enter the car park. He believed she was waiting for the roller door to go up and he appeared to be in a rush and drove around her. He appeared to be extremely fired up for this type of incident. 30He saw the male get back into his car and both vehicles entered the car park. He said that he and Mr Hope then followed the cars into the car park. 31They walked around until they found the female driver. She questioned had we seen what happened he had parked in front of her and the male driver had said to her " what are you looking at." Mr Hope said to her that she should report him and she said that she might. She was asked did she require any assistance and she said she was fine. 32The female driver seemed very flustered, angry and shocked. The female got into the lift. Mr Mateos stated that he had never before met either the female or male driver. 33Mr Dave Casey stated that he is employed by the respondent as a Business Services Manager based at Burwood. He commenced with the respondent in 1980 and has held his present position since 2008. Mr Casey was not required for cross examination. 34In his statement he advised that on 29 September 2011 he was at his desk when he was approached by the appellant. The appellant said in a conversation similar to the following: " I had a bit of a road rage incident down in the car park. There was some heated words exchanged and I wanted to let you know about it. I was waiting to drive into the car park and a lady was on the phone parked in front. I hit my horn to give her a prompt to move and she drove off. We exchanged some words down in the car park and then I met her again in the lift. It was not abusive in the lift but we did exchange words." Mr Casey advised the appellant to send him an email explaining what happened and to let his manager know what happened. Later that morning he received an email from the appellant giving his account as to what had occurred. 35Later that morning he received a phone call from Tony Hope who said that he had witnessed a respondent's car involved in an incident in the car park. He met with Tony and then went outside with him and he showed me where the incident occurred and explained his version. Later that morning he said that he was approached by Mr John Tsiros who claimed to be the female driver's manger. He wanted the driver's name and his manager's name. He said that he gave the appellant's manager's name to Mr Tsiros. 36The next day he said that he received another email from the appellant. 37Mr Allan Pollard filed a witness statement. He advised that he was an employee of the respondent and held the position of Investigator within the Investigations Unit. He stated that he attended a disciplinary interview held between the appellant and another investigator Ms Danielle Heatly. Ms Healty was the investigator in this matter. He stated that Ms Heatly is currently on maternity leave. He stated that he had read the investigation report completed by Ms Heatly. 38 In his statement Mr Pollard noted what actions Ms Heatly had carried out including contacting Ms Marifel Concubietta, who stated that she had not heard anything that morning situated on level 4 and checking vehicle log books to determine who had borrowed cars that morning. He noted that Ms Heatly contacted two other employees who had taken cars out , neither had seen anything. 39The appellant filed a witness statement and was subject to cross examination. He stated that he had been an employee of the respondent since September 2009, initially as a temporary employee in the position of Project Engineer. In January 2011 he was promoted to the position of Project Manager located on Level One George St. , Burwood. Prior to joining the respondent he had worked since August 2006 as a contractor with them. Since working with the respondent he stated that prior to the incident on 29 September 2011 no disciplinary matters had been raised against him. 40He stated that on 29 September 2011 at approximately 8.45 am he drove up to the entrance of the car park at 2-14 Elise St, Burwood in a respondent's marked car. On approaching the entrance he saw a blue hatchback already at the card reader. He stopped behind and to the left of the blue car. He said that when the shutter door opened the blue car did not move forward. He noticed that the woman driver appeared to be busy on her mobile phone with a phone call or text message. He did not recognise the driver as an employee of the respondent. 41He said that he drove slowly around the blue car and was half way through the entry when he heard a car horn honk. He denied that he drove forward at the same time as the blue car or that he swerved in front of the blue car. He believed that what he did was done in a safe manner. 42He said that when he heard the car horn he stopped his car and rolled down his window and said to the woman driver words to the effect of: " You were on the phone so I drove through." The woman driver said that she had not been and the appellant driver responded saying that she had. 43He then said that the woman driver started to abuse him and he said words to the effect were said. Woman: "You fucking idiot." Appellant: "Did you just abuse me ?" Woman: " Yes I did you fucking idiot." Appellant: " Fucking idiot yourself....fuck off." Woman : " You wanker." Appellant: "Fuck off wanker yourself." He said that at that point the woman showed him the bird with her finger. Woman: You are Indian aren't you...you Indian wanker." Appellant: "Why you fucking poofter...fucking shit." 44The appellant then got out of his car and moved towards the woman's car as he was offended by her racist comment. A further exchange of words took place. He denied that he asked the woman to get out of the car. He denied that he called the woman " dumb bitch." 45He said that there were a number of people across the road watching the incident because their voices had been raised. 46He stated that he then returned to his car and drove into the garage and parked the car on the lower level B1. He denied that as her car drove past his vehicle that he got out of the car and ran after her waving his arms and called out to her to get out of her car. 47He said that as he was parking his car, the blue car slowed down as it past and stoped. The woman stared at him and he said words to the effect : " What do you want now.?" Woman: I have got your rego fucking wanker." Appellant: "Fuck off...just fuck off. Get out of here." The exchange continued , the woman gave him the bird and then drove off. 48He then entered the lift where a woman was already in. He did not realise that it was the woman from the blue car. He said that he stood far away from the woman. 49The woman then said that the appellant had abused her. He denied that he had and said that they should forget about it as he had more important stuff to do. She replied that she was going to report him as he had breached the Code of Conduct. He replied that she had also breached it and he will report her so both could forget about it. She said no way and that she was going to take it further. He was the aggressor, there were witnesses and she had already spoken to the building manager. 50The appellant told her that she had been texting on the phone and he had been waiting for quite a while behind her. She denied it was a long time , she had not been texting but making a phone call and that he had to wait. The appellant then asked for her name which she did not give him. The appellant said that he wanted to speak to her manager, which she replied that she was the manager. 51He denied that he physically approached the woman in the lift. He denied pressing himself against her chest. 52He said that he was stressed by the woman's attitude and he did not press the button to get off and proceed to his office in an adjacent building. He denied that he pressed the lift button for level 2. He said that he only had access to the ground floor through his swipe card. He said that neither party used abusive language in the lift. 53He said that the woman exited the lift at level 4. He denied getting out of the lift and following the woman and calling her a "fucking dumb bitch." He then took the lift down to the ground floor and went to his office. 54Shortly after 9.00am he saw Dave Casey because he thought the woman may damage the vehicle he had been driving. He later sent an email to Mr Casey. Later he was advised that a General Manager from another unit Mr John Tsiros, was making inquiries trying to find out which unit he worked in. 55On 30 September 2011 , his manager Mr Tino Latella asked the appellant to come to a meeting. At that meeting he was advised that the woman had made an official complaint against him. The appellant was required to give an undertaking that he would not approach the woman nor the building where the incident took place. He was not asked for his side of the story. He later emailed the undertaking. As he could not go into this building he could not access the respondent's cars therefore he had to use his own car at his expense. 56On 12 October 2011 he received correspondence from Ms Danielle Heatly from the Investigation Unit advising that she was carrying out an investigation and that he may have breached the Code of Conduct. She outlined the procedure. He then received a letter dated 19 October 2011 outlining the allegations. He responded to these allegations on 25 October 2011. He was then invited to an interview which took place on 9 November 2011 with Ms Heatly and a Mr Pollard. In the interview he suggested that they try and find a witness who drove past when the verbal exchange took place. He received a transcript of the interview. 57On 4 January 2012 he was advised by his manager that the Disciplinary Review Panel (DRP) had found that the allegation was substantiated and he was offered the opportunity to respond prior to the DRP before the making of a final decision. At that point he contacted his union the Association of Professional Engineers, Scientists and Managers Australia (APESMA). 58On 9 January 2012 he sent a letter to A/General Manager Projects, Frank McCormack stating why he should not be terminated. 59On 24 January 2012 he met with his manager Mr Latella and Mr Ryan from the respondent's Human Resources Unit. He was provided with a letter that terminated his services and was paid two weeks notice. 60He was unaware that the respondent had obtained witness statements until the appeal. He maintained that the woman had exaggerated the events as well as allegations that were untrue and for which there were no witnesses. 61He believed that the respondent breached their own Disciplinary Policy in that he was not made aware of the evidence against him. 62On 7 May 2012 he forwarded a written apology to the woman Ms Valhos. He admitted to some inappropriate conduct in a verbal exchange but it was a one off incident and that Ms Valhos had subjected him to racial abuse and in the heat of the moment he had responded. He believed that the penalty imposed was inappropriate and disproportionate to the actions admitted. He stated that he has been without income since his date of termination. He admitted that he unintentionally breached the Code of Conduct. Considerations and Decision. 63An exhibit in the proceedings was the respondent's Code of Conduct( the Code). In its introduction it states in part: The RailCorp Code of Conduct establishes the acceptable behaviours and responsibilities expected of all RailCorp employees, contractors and consultants. The Code applies to all RailCorp employees, contractors and consultants. It is essential that we understand all the requirements of the Code, its supporting policies and procedures, delegations and instructions. This is because we are responsible for our actions and behaviour, including any failures to take action. We are also accountable for our actions. Under the section entitled A discrimination, harassment and bullying-free workplace it states: RailCorp is required by law to provide a work environment that is free from harassment, discrimination, victimisation and bullying. 64I am satisfied from the appellant's interview held during the investigation that the appellant had received training in the contents of the Code of Conduct during his employment. 65In considering this matter I believe that one can break the events that were alleged to have occurred that day into four areas. The first being the interaction that occurred outside the entrance to the car park, the second being the alleged incident within the car park , the third being the interaction within the lift and the fourth being the interaction on level 4. 66With respect to the first incident, Ms Vlahos was parked at the top of the ramp that led down to the entrance to the car park adjacent to the location to the swipe card machine. She stated that she had swiped her card to activate the roller door and whilst waiting for the door to go up, she collected her mobile phones( both private and business) from the consul in her car and a few items and placed everything in her handbag. The appellant had drawn up in his RailCorp car along side Ms Vlahos' car. 67The parties then differ with respect to what happened next. The appellant stated that he had waited in the public street and then along side Ms Vlahos' car before he moved passed Ms Vlahos' car "not too fast" and did a right hand turn to go into the car park. One of the witnesses Mr Hope said that at that point Ms Vlahos' car was stationary. He stated that there was a screech of tires and the appellant's car stopped. The other witness Mr Mateos saw the appellant drive in front of Ms Valhos' car and block her car. He believed that Ms Vlahos' car was stationary at the time. 68Ms Vlahos stated that when the roller door was completely open she started to move forward, the appellant's car cut her off when it swerved in front of her car, nearly causing a collision requiring her to apply her brakes, sound her horn and raised her hands, she stated in a questioning manner. She stated that the appellant's car had caught her unaware. This raising of hands in a questioning manner was confirmed by Mr Hope. 69The appellant stated that there was then an exchange of words culminating in what the appellant alleged Ms Vlahos' comment: : "You Indian wanker" that made him really angry and he got out of his car and approached Ms Vlahos' car. In his interview on 9 November 2011 with the respondent he stated that " if it was a bloke or something , I probably would have gone for that option ( fight him) but being a woman you can't think about something like that." In response to a question as to why did he get out of his car the appellant stated: "Initially I thought I'll get out and talk to her and try and reason it out, then I thought maybe, you know, I will just essentially try to get her details or ask her where she was from because I had no idea she's from RailCorp or what company she worked in, so I just got out of the car." 70 In her evidence Ms Vlahos stated that nothing was said by either person prior to the appellant getting out of his car. She denied using bad language or racist comments. She stated that the appellant approached her car screaming at her, waving his arms around and was very aggressive towards her. She said that she put her window up and locked her doors as she was scared. She said she sought to try and stay calm. She believed that this incident lasted about 30 to 45 seconds. 71The appellant accepts that he abused her with name calling and swearing. He stated that he knew that people were watching this exchange. He then got back into his car and proceeded into the car park. The evidence of both Mr Mateos and Mr Hope confirm that the appellant got out of his car and used bad language towards Ms Vlahos. Mr Hope confirmed that the hand gesture of Ms Vlahos was a questioning one with an open palm. Neither Mr Mateos or Mr Hope heard anything from Ms Vlahos. 72It was the evidence of the appellant that what instigated in the incident was the alleged racist comment by Ms Vlahos calling him "an Indian wanker." An email sent by the appellant at 9:17 am on 29 September 2011 to Mr Casey stated that after waiting about five minutes he moved ahead to enter the building. He stated that " she used abusive language at me." No mention of the racist remark allegedly made by Ms Vlahos was made. 73Another email sent on 30 September 2011 from the appellant to Mr Tino Latella (his manager) stated that " the incident was instigated on the fact that the person in question was using her mobile phone while in her car at the parking entrance." No mention is made of the racist remark allegedly made by Ms Vlahos. 74The statement made by Mr Casey that went unchallenged recounted what the appellant had said to him on the morning of the incident describing it as " a bit of road rage incident down in the car park." No mention is made of the racist remark allegedly made by Ms Vlahos. 75The appellant stated that he believed that Ms Vlahos was using her mobile phone, texting someone and this was why she did not move forward. Ms Vlahos denied she was using her phone. No summons for the phone records of Ms Vlahos was made by the appellant. 76The following day the appellant had a meeting with his manager Mr Latella when he was advised that a complaint had been made against him and at that meeting and an agreement was reached for the appellant to stay away from the building. He again made no mention of the alleged racist remark. 77The appellant was asked the following question in examination in chief: Q. As you're saying that the complainant had made racist comments to you did you consider lodging a complaint against her? A. I did consider it but considering my work load at that point of time and the fact that you know I thought this incident was something best forgotten and you know get on with life I just let it go, probably shouldn't have. 78If as the appellant stated that the racist comment allegedly made by Ms Vlahos was the instigator, then he did not raise it until he formally responded in writing dated 25 October 2011. In my view, if it was the racist remark that he took great offence at, then the applicant had ample prior opportunity to advise his management of what he said occurred and to make a complaint against Ms Vlahos. This was, in his submission the very basis of why he acted as he did. On the balance of probability it is my finding that Ms Vlahos did not make that racist remark. 79 It is my view that the appellant having been waiting for Ms Vlahos' car to move off, got impatient and drove forward unbeknownst to Ms Vlahos, nearly causing an accident. When Ms Vlahos' sounded her horn he took offence and stopped his car. Getting out of his car and moving towards Ms Vlahos aggressively waving his arms and shouting and swearing at her was in my view the catalyst to the incident. Getting out of his car and approaching Ms Vlahos' car in the manner that he did was not the actions of a person who only wished to obtain the details of the other driver. 80The appellant stated in evidence that when he was parking his car in the car park Ms Vlahos' car stopped behind his and she stared at him. He says he did not get out of his car but did yell at her " What do you want ?" and screamed at her to "fuck off." He said that she swore at him and gave him " the bird" with her finger and said that " I've got your rego." . In his interview with the investigator on 9 November 2011 he stated that : " I got out of my car and said, " What do you want ? I was screaming at her , "fuck off", things like that , fully abusive. The appellant has therefore given one version that he did get out of his car to the investigator and another to this Board. 81It was the evidence of Ms Vlahos that she had to wait in her car whilst the appellant parked his car and also wait whilst another car was leaving the car park. She stated that the appellant got out of his car and started to run behind her car calling out and waving his arms:" Come on, get out of your car." The appellant also stated that Ms Vlahos stated that she was getting his registration number. This comment was denied by Ms Vlahos as she said she did not get the registration of the appellant's car. This was obtained by Mr Hope. It is my finding based on the balance of probability that the applicant did get out of his car and did abuse Ms Vlahos. It is my view that the appellant had not calmed down from the incident outside the car park door and when he saw Ms Vlahos stop behind his parked car in the car park, he then took this opportunity to get out of his car and further abuse the woman. 82The next incident was when the appellant got into the lift which was already occupied by Ms Vlahos. It was the evidence of Ms Vlahos that the appellant had a smirk on his face and approached her close enough for their chests to be touching. She stated that she moved back into a corner. She said that the appellant then swiped his card, pressed the button and started to abuse her stating that he had been waiting five minutes and she was too busy messaging on her phone. She said she was called "a fucking dumb bitch." She said the lift stopped at level 2 and she told him to get out but he did not get out. The evidence of the appellant was that whilst there was discussion between the parties in the lift it was not abusive. 83 In the interview held by the respondent with the appellant on 9 October 2011, the transcript stated that Ms Vlahos said to him "You abused me." He replied " Look, I didn't , I mean let's just forget it, forget about it, I just don't want to think about it. I've got much more stuff to do and this is just another distraction." Ms Vlahos replied" No, you have broken the Code of Conduct." She then advised the appellant that she was going to put a complaint against him. He responded that he would also make a complaint. He said that he then asked who her manager was as he wanted to talk to her manager. The lift door then opened at level 4 and she walked out with the appellant asked "Where are you going ?, Who is your Manager ? Is this the level you're working on ?. What department did you work in?". He said that Ms Vlalhos replied that she was not going to tell him. The appellant also said that in the lift Ms Vlahos told him that she had already spoken to the Building Manager who had witnessed the incident at the car park door. 84As previously expressed in this decision the appellant never filed a complaint against Ms Vlahos because of his work load at that moment and he thought the incident best forgotten. 85 When the lift stopped at level 4 Ms Vlahos said that she got out and the appellant followed still shouting at her. It is my finding based on the balance of probability that the appellant continued to abuse Ms Vlahos in the lift and that he continued to shout at her as she left the lift and headed towards the security door on level 4. 86In summary, I find that the allegations proven. 87The appellant by this application seeks his job back. Ms Funnell for the appellant has stated that the admittances by the appellant did constitute misconduct but that his actions were not at the most serious end of the scale. It was submitted that the penalty of dismissal was disproportionate to the actions and that a lesser penalty should be imposed. What that lesser penalty was left to the Board to decide. 88The reaction to the incidents on 29 September 2011 by Ms Vlahos was that at the time she felt scared and believed that the appellant was going to hit her when he got out of his car and approached her car. She locked her car doors and closed her window. The further contact with the appellant in the car park and the lift did not dissipate her concern. She stated that when she left the lift she felt shocked and traumatised. Sometime after the incident she said she felt sick and nauseas and went to the toilet. She also reported the incident straight away to her manager, where she said she broke down, and to the Incident and Injury Hotline. She left work and went to see a doctor in Haberfield who gave her two days off. The doctor also told her to speak to a counsellor. She stated that she spoke to Employee's Assistance over four weeks. In my view the reaction to the incidents by Ms Vlahos was quite profound. 89It is my finding that the appellant broke the Code of Conduct on that day. His actions towards a fellow female employee were completely unacceptable and amounted to misconduct which the appropriate disciplinary penalty is dismissal from the respondent. Intervention by the Board in this decision taken by the respondent is not warranted. Order(s) 90The appeal by Mr Sourideb Bhattacharya against the decision of RailCorp to dismiss him from his employment is disallowed. 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: 15 August 2012