Khalil v RailCorp [2012] NSWTAB 25

Transport Appeal Boards New South Wales Medium Neutral Citation: Khalil v RailCorp [2012] NSWTAB 25 Hearing dates: 20 and 29 June 2012 Decision date: 27 August 2012 Before: Bishop C (Board) Decision: Appeal allowed reinstatement ordered Catchwords: PUBLIC SERVICE - discipline - rail employee - breaches of Code of Conduct - allegations concerned three declarations for secondary employment - advertising on internet - ABN held - investigated - dismissed - appellant unaware of need to declare - declared when brought to his attention - rejected due to absences - ceased activity - employer contended this continued - reinstatement sought - HELD - appellant truthful - no attempt to conceal - made application when brought to his attention - ceased activity - internet advertising of long standing - ABN not used for business purposes - approval would have been given but for absence record - no conflict of interest raised - punishment excessive and out of proportion - reinstatement ordered. Legislation Cited: 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 Han v Rail Corporation of New South Wales [2011] NSWTAB 1 Garland v RailCorp [2011] NSWTAB 27 Category: Principal judgment Parties: Sleiman Khalil (Appellant)

Rail Corporation of NSW (Respondent) File Number(s): TAB 118 of 2012

DECISION

Introduction 1Mr Khalil commenced employment with RailCorp on 15 November 2004 in the position of Customer Service Attendant. He subsequently completed training as a Guard, and was promoted to the role of Guard in August 2005. In April 2007 he commenced training as a Train Driver and was promoted to the role of Train Driver in January 2008 and was in this role until his dismissal by RailCorp. 2On 24 February 2012 Mr Khalil was notified by RailCorp that he was dismissed for breaches of the RailCorp Code of Conduct (the "Code"). 3On 12 March 2012, Mr Khalil lodged an appeal in respect of his dismissal. On the Notice of Appeal he indicated a plea of "Guilty". 4The matter was listed for disciplinary conciliation before Commissioner Ritchie on 2 April 2012 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 20 June, with a further day required on the 29 June 2012. 5RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980.