Virendra Saxena and RailCorp [2012] NSWTAB 26

Transport Appeal Boards New South Wales Medium Neutral Citation: Virendra Saxena and RailCorp [2012] NSWTAB 26 Hearing dates: 30 May 2012 Decision date: 28 August 2012 Before: Tabbaa, C AM (Board) Decision: Appeal disallowed Catchwords: Appeal against dismissal; Alleged breach of RailCorp Code of Conduct; Alleged unfair and disrespectful treatment of a work colleague; unprofessional behaviour whilst in uniform; Failure to acknowledge seriousness of his actions; Concern that Appellant may re-offend. Legislation Cited: Industrial Relations Act 1996 (NSW) Category: Principal judgment Parties: Ms M Robinson (RailCorp) Mr M Cartwright (Australian Rail, Tram and Bus Industry Union, NSW Branch) File Number(s): TAB 28 of 2012

DECISION

Introduction 1This is a decision in an appeal against the decision of RailCorp to dismiss Mr Virendra Saxena from the position of Train Guard. 2Mr Saxena commenced employment with RailCorp and/or its predecessors on 29 February 2009 as a part-time Customer Servant Attendant at Wynyard. Approximately 1.5 years' later, he was confirmed as full-time in that position. 3The allegation of inappropriate behaviour by the Appellant relates to two separate incidents. 4At approximately 8.44 am on or about 11 July 2011, Mr Saxena, accompanied by his wife, boarded a train at Merrylands Station bound for Museum Station. He travelled on his rail pass and his wife purchased a ticket at Merrylands Station. 5Mrs Saxena was required to meet with her Solicitor at 9.45 am prior to attending a Workers' Compensation Commission hearing at 10 am. 6Mr Saxena was wearing his uniform issued to him by the Respondent - a shirt and tie both bearing RailCorp's logo, and plain trousers. He wore a checkered jacket on top of the shirt. That coat was not part of the uniform. 7The train experienced some 12-13 minutes delay during that journey, particularly between St James and Museum stations where it stopped 2 or 3 times. 8During the delay, Mr Saxena approached the Guard's Compartment and knocked on the window of the door. Guard Corcoran opened the door to the vestibule. They proceeded to have a conversation concerning the delay and her announcements to passengers. The contents of that discussion are in dispute. 9Guard Corcoran then attempted to close the door between the guard's compartment and the vestibule. At one stage he put his foot in the door way which prevented the Guard from shutting it. The behaviour of the parties when the Guard was attempting to close the door is also in dispute. 10At or about 9.47 am, the train arrived at Platform 2, Museum Railway Station. The Appellant alighted from the train and approached the guard's compartment where Guard Corcoran was speaking with the Duty Customer Service Attendant. The behaviour of the Appellant and the Guard in relation to that encounter is also in dispute. 11That encounter was captured on CCTV footage shown during the proceedings. The Appellant was aware that the Station was monitored by CCTV. 12As the Appellant left Museum Station, he encountered a colleague at the barrier who was also a Customer Service Attendant. They engaged in some chit chat before he left the Station but made no mention of the incident. 13The Appellant commenced his shift at Merrylands Station at 1.30 pm on the same day and proceeded to work as normal until his shift ended. He did not report his version of the incident to anyone. 14The Appellant proceeded on a period of annual leave. He arrived back in Australia on 10 September 2011. On or about 14 September 2011, he collected a letter from Australia Post dated 26 July 2011. Mr Derek Wilson, Senior Investigator, informed the Appellant, amongst other things, that he was conducting an investigation into the possibility that he may have breached RailCorp's Code of Conduct as a result of the incident on 11 July 2011. 15On or about 16 September 2011, the Appellant was provided with another letter dated 13 September 2011 by the Station Manager at Holsworthy Station. That letter was also from Mr Wilson who informed the Appellant that he was conducting a disciplinary investigation into the possibility that he may have breached RailCorp's Code of Conduct and set out the allegation made against him. 16The Appellant responded to the letters on 25 September 2011. He explained that he had approached the Guard on behalf of some of the passengers who were grumbling and abusing the Guard because of the quality and quantity of the announcements. He insisted that he, personally, was not upset by the delay. Rather, he was upset by the quality of her announcements. He denied categorically calling the Guard by any names and denied accusing her of running him late. He stated: She did not care to listen to me, reacted sharply and slammed the door on me. I felt insulted so I put my foot in the door and again requested to announce loudly. Then I moved out and sat on the seat. He stated that, upon arrival and as he was about to exit Museum Station, he once again told the guard to announce louder to keep passengers properly informed. He stated that she had "shouted and yelled 'F' word on me". 17On or about 19 October 2011, the Appellant received another letter. Mr Derek Wilson, Senior Investigator, RailCorp, advised that having considered the Appellant's response, he was required to attend a disciplinary interview on 26 October 2011 in order to provide his own version of events and provide an explanation and/or mitigating circumstances that may exist. The detailed correspondence set out the disciplinary action available to the Respondent. 18On or about 31 October 2011, the Appellant received yet another letter in which Mr Wilson requested the Appellant to attend a rescheduled disciplinary interview on Thursday, 10 November 2011. 19On or about 6 November 2011, the Appellant responded by email to Mr Wilson declining the offer to participate in an interview on 10 November 2011 but pointing out that he would cooperate fully with the investigation and would respond to any inquiry in writing.. 20The Investigation Report, issued on 25 November 2011, concluded that there was sufficient evidence to show that on 11 July 2011, Mr Saxena engaged in unacceptable behaviour by subjecting Guard Corcoran to inappropriate behaviour and/or harassment. 21On or about 5 December 2011, the Appellant received a letter from Mr Mark Abel, Acting General Manager Customer Service, CityRail South and South West, in which he was advised that a preliminary view of the appropriate disciplinary outcome for him was dismissal. Nevertheless, before coming to a final decision in relation to the disciplinary outcome, he was being given an opportunity to make a submission within fourteen days, in regard to the proposed outcome. 22On or about 13 December 2011, the Appellant notified his union that he would be unable to meet the deadline because he was suffering from stress as a result of the allegations made against him. 23Mr Cartwright wrote to Mr Mark Abel requesting a 2-week extension of time to provide a response. The request was approved by Mr Abel. 24On or about 2 January 2012, the Appellant wrote to the Respondent requesting that his employment not be terminated. He explained that he "was not on duty as a RailCorp employee and was simply a fellow passenger on a repeatedly delayed train wishing to receive some information and clarification about the delayed service". He pointed out that he has been employed with the Respondent since 2008 and was well aware that the guard is not to be blamed for delayed trains. He confirmed that he put his foot in the door way but pointed out that he meant no malicious intent or intimidation. He said he was attempting to prevent the door from hitting his face and also potentially damaging his glasses and also trying to get the Guard to listen to the issues he was raising on his behalf and on behalf of fellow passengers. He said that although he was not on duty, he felt obliged to provide an opinion in the absence of announcements as he was in partial uniform. He pointed out that it was his normal practice to use his hands to gesticulate whilst speaking and was not intending to be disrespectful to the Guard. He had gone on to rely on his prior good record with the Respondent and seek consideration for his financial and domestic situation. 25Mrs Saxena also wrote to the Respondent in support of her husband pointing out that his dismissal would be very harsh considering their personal domestic circumstances. She pointed out that the Appellant's normal style is to speak fast and loud but does not intend to be rude or intimidating. He was normally a helpful person and all he was trying to do on that day was help. 26On or about 24 January 2012, a letter, dated the previous day, was hand delivered to the Appellant at RailCorp's Burwood office advising him of his termination effective from 24 January 2012.