Transport Appeal Boards New South Wales Medium Neutral Citation: Stevens v RailCorp [2012] NSWTAB 24 Hearing dates: 16/07/12, 17/07/12 Decision date: 20 August 2012 Before: Ritchie C (Board) Decision: Catchwords: Appeal lodged re suspension without pay for one week- Appellant supervisor in the Ticketing Support Control Centre (TSCC). Appellant accused of unacceptable behaviour towards a female operator. Pleaded not guilty- Female employee stated that she was shouted at and approached in an aggressive manner-attempted to end a phone call and grab the hand piece.- Female employee at the time making a phone call to her husband in a non English language- Appellant denied allegation and stated that he had spoken to the female employee in a calm manner-Board found in favour of the respondent and dismissed the appeal. Category: Principal judgment Parties: Mr Bruce Stevens(Appellant) Rail Corporation of New South Wales (Respondent) File Number(s): TAB 184 of 2012 DECISION Introduction 1Mr Bruce Stevens ( the appellant) filed a Notice of Appeal -Transport Discipline on 12 April 2012. The matter came on for conciliation on 11 May 2012 before Tabbaa C but did not settle and the parties were provided with a timetable for the filing and serving of evidentiary material. 2The Hearing took place on 16 and 17 July 2012 with the decision being reserved. Issue(s) 3In correspondence dated 3 April 2012 the appellant received a letter from Mr Shaun Finegan stating that an allegation had been substantiated, the details of which were: Between September 2010 and June 2011, you engaged in unacceptable behaviour by subjecting TSCC Operator Ms Arvind Kaur, to bullying and harassment and/or inappropriate behaviour. The particulars of the allegation are: (c) On 7 June 2011, while acting in your capacity as the Shift Supervisor at the Ticketing System Control Centre, you confronted Ms Kaur while she was speaking on the telephone with her husband and shouted words to the effect of: "No Indian No Indian". You then pushed your shoulder against her shoulder and attempted to terminate the phone call by hitting the keypad with an open hand. You then attempted to grab the hand piece, which was being held by Ms Kaur against her chest. The final view of the appropriate disciplinary outcome for you is as follows: Suspension without pay for one week. Training: It has been recommended that you be required to undertake an anger management course. In addition to the disciplinary outcome referred to above , it is recommended that you be issued a Final Warning indicating that any further breaches of organisational policies will result in further disciplinary action which may include dismissal. In his Notice of Appeal the appellant ticked the Not Guilty box. Respondent's and Appellant's Cases 4Ms Arvind Kaur stated that she had worked with the respondent since 1984 and had worked in the Ticketing System Control Centre (TSCC) since 2002, engaged as a shift operator. She had worked with the appellant since 2002. If both on the same shift then the appellant would be her supervisor. 5She stated that in March 2007 she began to be bullied and harassed by the appellant. This came in the form of yelling at her from a distance of 5 metres. On 19 September 2010 she was to finish her shift at 5.45am when the appellant arrived at approximately 5.30am. She inquired as to how come he was early and was responded to by the appellant of dobbing him when he was supposed to work on a Sunday shift but did not come in. She asked to him to relax and the appellant replied that he would loose his job and if anything happens to his family he would do the same to hers and burn down her house. She finished her shift and told her husband when she arrived home. She reported the incident to Terry Rowe. 6In early 2010 she and the appellant were working alone when the appellant asked me: "Are you being shagged." At this time he started to giggle. She stated that she did not know what it meant until she asked her husband. She stated that he on numerous occasions called her a "goose" and "do you want me to wipe your nose as well." 7On 7 June 2011 she was rostered to work the 1745 to 0545 shift the following day. At approximately 1830 hrs she was alone with the respondent who was rostered to cease work at 2110 hrs. 8At that time she phoned her husband at home on her work phone as she had misplaced her wedding ring. As she was speaking to her husband in her native tongue, the appellant yelled out: " No Indian no Indian what I told you." She said that she then turned to the appellant and explained what she was doing. The appellant said: "Your husband can speak English you can talk to him in English." She then asked the appellant why he was listening to her personal conversation. 9The appellant then started to run towards her from his work station and she got out of her chair. She said that he pushed his shoulder against her shoulder and she moved to the side. He then started to push down the receiver with his finger when he realised the green light was still on, he started to use his hand but this did not terminate the call. He then tried to grab the hand piece from her but she said that she held on. 10She then said to him: " If you do this to me again I will smash you with this phone." The appellant then returned to his work station. 11She then called Terry Rowe on his mobile and told him that she had enough of this place and that she was going to the Police Station to report this. She left her work at 18.40 and went to Eastwood Police Station. 12She provided the Police with a report which was written up in a police notebook which she signed. She was provided with an Event Number and that it would be transferred to a city police station as the incident occurred in the city. She was later advised that it had been transferred to the Darling Harbour Police Station. 13Later that same evening she rang her local doctor and saw her the next day. She was diagnosed with a psychological injury. 14She was referred to an EAP counsellor and has seen them on one occasion. 15A copy of the NSW Police Force -Transcript of Witness Statement was made an exhibit in these proceedings. 16A supplementary statement by Ms Kaur was also made an exhibit. In this statement she stated that during the incident on 7 June 2011 she started to shiver because she was scared that the appellant was going to bash her. She said that she started to cry and began to feel helpless as there were no other staff on the floor. The incident made her feel weak, mentally hurt. 17Mr Manjinder Singh stated that he is the husband of Ms Kaur . He also works for the respondent and has done so since 1994. His current position is that of Senior Project Manager for Engineering & Projects, rolling stock upgrades. 18He stated that at approximately 6.30pm on 7 June 2011 he received a phone call from his wife on his mobile phone. His wife said that she had misplaced her wedding ring and if he could look for it when he arrived home which he agreed to do. His wife then stopped speaking and he could hear a voice in the background. He could not hear at that point what was being said. He then heard a male voice say ; " No Indian, no Indian." He then heard his wife say: " Stop doing this to me, stop doing this to me." Then he said he heard a tapping sound like someone was banging on the desk or the phone. He then heard his wife keep saying: " Don't do this to me or I will hit you or smash you." He also heard the male voice keep saying : " No Indian, no Indian." The phone then went dead. 19He then sought to ring his wife both on her mobile phone which whilst ringing was not being answered and the office phone which was engaged as if off the hook or was busy. 20After about ten or fifteen minutes he spoke to his wife on her mobile phone. He said that his wife was crying and that she had left her office. He advised her to calm down and tell him what had happened. She said that after she had started her phone conversation with him, the appellant started to yell at her and he ran towards her desk and tried to snatch the phone out of her hand. She said he was very aggressive. The appellant ended the phone call by pushing down the receiver. She then told him that she had called her manager and informed him of the incident. She said that she was going to the Police Station to report it. She caught a train to Eastwood Station and he met her there. 21When he met her at the station it was his view that his wife was completely shattered, crying shaking and very upset. He said that they then proceeded to the Eastwood Police Station. 22Mr Terence Rowe stated that he has been an employee of the respondent since 1976 and was currently the Field Services Manager for Ticketing. The TSCC is managed by Peter Downie who in turn reports to him. 23In his statement he commented upon issues that he faced with respect to the allocation of overtime within the Unit. He raised the matter of one of the employees Alka Jethi and her disputes with the appellant. The disputes did not involve threats or bullying by the appellant. He believed that the employees within the TSCC had broken into two separate groups with employees either supporting the appellant or Alka. He believed Alka and Ms Kaur were in the one group. He also stated that around this time Ms Kaur came to him to seek advice as she claimed that she had been threatened by a staff member. She was advised to go to the Police. She would not name this person. 24A body called the Grievance Advisory Service (GAS) was formed to try and resolve problems within the TSCC. In April 2011 it presented its report. Mediation would be offered to four staff members. The four were the appellant, Alka, Ms Kaur and Peter Downie. One of the other recommendations was that English was to be the only language in the work place at TSCC and if a staff member was to have a personal phone call in their own language then this was to be done in private in another area of the building. He stated that later he found out that both Alka and Ms Kaur declined the mediation. 25He said that in the evening of 7 June 2011 he received a phone call from Ms Kaur. Ms Kaur stated that she was phoning her husband when the appellant came over to her and told her to hang up and also attempted to terminate the call. She told him that the appellant had threatened her and that she was relinquishing her duty and was going to the Police. At the time Ms Kaur was crying and appeared to be upset. 26He then rang his managerSwain Kirk and advised him what had occurred. He was told to ring the appellant and to find out what had happened. He rang the appellant who said that Ms Kaur had been speaking in Indian and he requested her to stop talking in Indian and she refused to do so. The appellant told him that he then tried to hang up the phone. 27Mr Rowe then tried to cover the shift but in the end he went in and worked. 28He was aware that Ms Kaur had a few days off work and claimed workers compensation. 29On 1 July 2011 he said that he was interviewed by Ms Penny Meakins who is an investigator and on 6 December 2011 he attended RailCorp Investigations where he made a statement to Neal Carr. A copy of his statement to Ms Meakins was made an exhibit in these proceedings. In the statement to the investigator Mr Rowe states that the telephone call was terminated. He also stated that there had been several occasions when other staff have complained to him about the appellant being abrupt in his tone of voice but had not received any complaints concerning threatening behaviour. 30The appellant Mr Bruce Stevens stated that he has worked for the respondent since 1984 and is currently a Ticketing System Control Centre Supervisor. He said that over the last two years a number of allegations had been made against him and other managers by Alka Jethi and Ms Kaur which he had denied. They were investigated and found to be baseless. The reason he filed a Notice of Appeal was that the allegation made by Ms Kaur was untrue. He noted that the respondent no longer alleged that he pushed his shoulder against Ms Kaur's shoulder. He stated that he had no discipline offences against his work record. 31He stated that on 7 June 2011 Ms Kaur was speaking loudly in Indian and the volume of her conversation was disturbing him as he attended to work related phone calls. He said that there was a standing direction at the time that employees were not to speak languages other than English while working in the control room. For that reason he told her to stop and take her call in another room. 32He said that Ms Kaur became aggressive towards him and said words to the effect of : "this is harassment and I am going to ring Terry Rowe and the police." He said that Ms Kaur also threatened to throw the telephone handset at me , but this she did not do. 33He stated that he did not shout at Ms Kaur nor did he use the words: "no Indian, no Indian." He said he spoke calmly and reasonably . He said that he did not approach her or come close to her. He said he did not touch her in any way and he did not attempt to terminate Ms Kaur's phone call by hitting the key pad. He said that he was not aggressive towards her and did not bully, threaten or harass her. 34He said that if he wanted to end the phone call he would not have hit the key pad with an open hand or tried to take the handset. Also if he wanted to take the handset from Ms Kaur as a larger person he imagines he would have been able to do so easily. 35He stated that Ms Kaur had even tried to falsely claim Workers Compensation. He stated that he did not tell Mr Rowe that he had hung up the phone on 7 June 2011. He also said that in Mr Singh stating that when he tried to call back the phone was engaged, this was wrong as the Centres phones can not be engaged. Considerations and Decision. 36It was accepted by the respondent that they did not press the allegation that the appellant tried to shoulder Ms Kaur on the night of 7 June 2011. 37Through their statements and evidence the accounts given by Ms Kaur and the appellant differ greatly. 38The evidence of the appellant was that he asked Ms Kaur to stop and to take her call in another room which he said in a calm voice. He stated that he did not approach Ms Kaur but remained seated at all times. He said that it was Ms Kaur who responded aggressively and declared that " this is harassment and I am going to ring Terry Rowe and the police." He said that she also threatened to throw the telephone handset at him. 39The evidence of Ms Kaur was that the appellant did yell at her and did come towards her in an aggressive manner. She felt scared as she thought he was going to bash her. She said that the appellant sought to end the call. The differences between the statements to the police and the respondent's investigation she said was as a consequence of the difference in the way the interviews were run and her emotional state at the different times. 40The evidence of Mr Rowe was that employees at the TSCC had been advised that if they wished to make a personal call in a language other than English they were to leave the room. He also stated that he had not previously experienced the highly emotional state of Ms Kaur when she phoned him straight after the incident. He said that she was sobbing, sounding very upset distressed and that she stated she was leaving. 41 In summary the evidence of Mr Singh, the husband of Ms Kaur and also a long term employee of the respondent was that he received a phone call from his wife on the night and during the conversation he heard another voice say: " No Indian , no Indian." Mr Singh was asked the following questions is cross examination: Q. Was the male voice shouting ? A. It was - I can hear that it was " No Indian, no Indian." Q. Was the male in your opinion shouting ? A. It seems to me , yeah. Q. You don't say that in your statement that the male voice shouted though, do yo u? A. But I heard that. I don't know the person whether he's-its normal conversation he's like that or he's shouting on that. That's what I heard from the -through my phone. Q. So is your evidence you don't know whether the person was shouting ? A. Well, I don't know evidence that is for shouting but I heard that, that words. Q. But you agree that you don't know whether the person was shouting or not ? A Yep. 42The appellant stated that he did not shout at Ms Kaur nor did he use the words " no Indian, no Indian". He stated that he spoke to her calmly and reasonably. 43The appellant stated that he did not move from his seat which was located some 4 to 6 metres from Ms Kaur. I am struggling to believe from that distance his voice could be heard by another person at the end of a phone if he was speaking calmly. The Board asked him this question: Q. And your voice was the same emotion as you're now speaking to me ? A. I believe so. 44The appellant's representative stated that Mr Singh's evidence may have been influenced by his wife in discussions after 7 June 2010. This Mr Singh denied. He said he avoided speaking to his wife about the incident as he believed that his wife would have got upset again. He just did not raise the issue. I accept this evidence. 45Mr Singh stated that when he finally spoke to his wife on the phone the second time, she was very upset and crying. When he later that night met her at the Eastwood railway station she was completely shattered, crying, shaking and very upset. 46There was evidence that the TSCC was not a happy place to work. Mr Rowe stated that there had been accusations made by employees against supervisors concerning the allocation of overtime and other matters and that some employees had broken into two camps. Needless to say Ms Kaur and the appellant were not in the same camp. 47If I were to accept the evidence of the appellant with respect to how he conducted himself that night, then I would have to find that either Ms Kaur over reacted to the ninth degree to his calm direction to take the call outside, or that she has lied to her employer, to the NSW Police and to this Board. Also I would have to prefer the evidence of the appellant over the evidence of Mr Singh. 48I find the evidence given by Mr Singh to be most compelling. It is my view that Mr Singh came before this Board and gave his evidence in an honest and truthful manner. I find on the balance of probability, that the appellant did shout at Ms Kaur and did state the words " No Indian, no Indian". In conjunction with that finding it is also my finding, based on the balance of probability, that the appellant did physically approach the work station of Ms Kaur and in doing so, did frighten her. Also I find based on the balance of probability, that based on the evidence of Ms Kaur and that of what Mr Rowe was told by the appellant on the night in question, that the appellant did attempt to hang up the phone. 49 It is my view that it was the actions of the appellant of shouting at, approaching Ms Kaur in an aggressive manner and attempting to hang up the phone, that resulted in her getting into an emotional state. I also accept Mr Singh's evidence of the extent of the emotional state that he found his wife in, both over the phone and later at Eastwood railway station. I also accept the evidence of Mr Rowe with respect to how he found Ms Kaur when he received a phone call from her. 50The issue that commenced this incident was Ms Kaur speaking to her husband in a non English language when making a phone call. From the evidence of Mr Rowe it would seem that employees of TSCC were advised that if such a phone call was to be made or received then they were to vacate the control room and go outside. It would seem that the appellant was trying to enforce this policy on that night. Supervisors have a responsibility to maintain and enforce company policies. That is part of their job. In my view, it was the way that the appellant sought to enforce the policy in an aggressive manner that became the problem. 51I have taken into consideration the appellant's disciplinary record and that for the last ten years or so, there was no evidence of any proven allegations of unsatisfactory interaction between himself and other employees or contractors. Notwithstanding the above, the appellant's actions on the night of 7 June 2010 towards Ms Kaur were quite unacceptable and therefore I do not uphold this appeal. Order(s) 52The appeal in TAB 12/184 is dismissed. 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: 20 August 2012