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. The Allegations 27The allegation contained in the correspondence to the Appellant dated 13 September 2011 is as follows: (a) At or about 09.40 hrs on 11 July 2011, you were travelling in RailCorp uniform as a passenger on train service 54-F. The train was delayed between St James and Museum Railway Stations. During the delay, you approached the Guard's Compartment and knocked on the window of the door. Guard Corcoran opened the door to the vestibule. You then had a conversation with Guard Corcoran concerning the delay and her announcements to passengers. During this conversation you yelled at her and said words to the effect of "I heard your announcements now I am late." and "I don't care about your announcements, I am late because of you, you stupid woman." This behaviour was not wanted or invited by Guard Corcoran. (b)Guard Corcoran then attempted to close the door between the guard's compartment and the vestibule. You stepped forward and placed your foot in the gap to prevent the door from closing. You then removed your foot when told by Guard Corcoran that she would contact Security unless you removed your foot. This behaviour was not wanted or invited by Ms Corcoran. (c)At or about 09.47 hrs, the train arrived at Platform 2, Museum Railway Station. You alighted from the train and approached the guard's compartment where Guard Corcoran was speaking with the Duty Customer Service Attendant. You again shouted and yelled at guard Corcoran about the train delay and made threatening gestures by continually pointing at her and waving your right arm. This behaviour was not wanted or invited by Ms Corcoran and caused her to close the door to the guard's compartment until she saw you walk away. 28The Respondent contended that, by his own admission, Mr Saxena held himself out to be a RailCorp employee at the time, was visibly wearing a RailCorp shirt and tie and was travelling on his RailCorp travel pass, a condition of which is compliance with the Code of Conduct. RailCorp Code of Conduct 29The section of the Code of Conduct allegedly breached by the Appellant relevantly provides the following: Section 2 - Acceptable behaviour and responsibilities RailCorp employees... are to comply at all times with the behaviours outlined in this Code of Conduct. You are also to adhere to the following general principles: .... Always act in the best interests of RailCorp Maintain and promote high levels of acceptable behaviour Help to build and maintain a culture that is just and fair to all (known as a "just Culture" in RailCorp) As an employee... you are responsible for the way you behave and your actions. All your decisions must be ethical and comply with legislation..., awards, policies, procedures, rules and job requirements. In your work at RailCorp you must: Carry out your duties carefully, safely, honestly, courteously and fairly.... Use your authority and delegations/s in an appropriate and unbiased way for the intended work related purposes Treat members of the public and colleagues fairly, consistently and with respect... Present yourself in a businesslike and professional manner ie neat, tidy and clean and wearing correct uniforms and specified safety equipment... Not knowingly make a false statement 30The Personnel records indicate that the Appellant acknowledged receiving and reading a copy of the Code of Conduct in his Letter of Acceptance of employment dated 31 January 2008. In addition, his Ellipse records confirm that he attended a briefing on the revised Code of Conduct on 7 April 2010. 31The Respondent contended that by subjecting Guard Corcoran to inappropriate behaviour, the Appellant failed to: Always act in the best interests of RailCorp Use his authority in an appropriate and unbiased way for the intended work related purposes Treat a colleague fairly, consistently and with respect... Present himself in a professional manner The Respondent's Evidence 32Guard Corcoran submitted a written complaint regarding what she described as "an extremely upsetting incident" with the Appellant on 11 July 2011 to her Depot Manager. She had written out the complaint after she got home that afternoon. She explained in her report on the incident that the driver advised her that there would be an extended delay in arriving at Museum Station. She said she had immediately made an announcement which was closely followed by another announcement explaining, during the latter, of the reason or the delay and the fact that the duration of the delay was unknown. During her evidence-in-chief, Ms Corcoran stated that the train was stopped for approximately four minutes at St James. She made the first announcement then advising passengers that the delay was because of train congestion. She made the second announcements approximately two minutes later advising that the duration of the stoppage was not known. Ms Corcoran stated that shortly after, she heard knocking on the crew compartment door. She said she opened the door because she noted that it was a man in a RailCorp uniform under his plain jacket. The door opened outwards towards the right. She noted that there was no-one else in the vestibule area. She acknowledged that his anger and frustration were understandable. She said she appreciated being told if announcements were not being heard as she could lodge a trans status report and the matter would be rectified for the following shift. Nevertheless, she said that Mr Saxena had yelled at her saying: Appellant:What is the hold up? Guard:I just made 2 announcements sir, can't they be heard? Appellant:I don't care about your announcements, I am late because of you, you stupid woman. Ms Corcoran explained that Guards working on the Tangaras cannot tell if announcements can be heard in all of the carriages. She stated that as Mr Saxena was becoming more abusive and intimidating, she told him in a firm and loud voice that he was being rude and she refused to deal with him. She denied that he had raised the issue on behalf of other passengers. She said she attempted to shut the door between the crew cab and vestibule area but the Appellant took a step forward and put his foot in the way stopping her from shutting the door. She said she felt very intimidated by this action and raised her voice when she said: Guard:Remove your foot from my door, or I will call security! Ms Corcoran noticed two passengers heading towards the vestibule area from the lower deck. She did not hear what they said but the Appellant removed his foot and stepped back allowing her to shut the door. She proceeded to make another announcement to the passengers about the delay. Upon arrival at Museum Station, and before she opened the doors, she said she motioned to the Station Staff Assistant on the platform to approach her. She said she advised him that she had been verbally abused by a man wearing a RailCorp uniform and may require assistance, "I've just been abused, verbally abused, can you stay with me and if you recognise this person getting off I want his name". She pointed out the Appellant as he alighted from the train and asked the Station Staff Assistant if he knew who the Appellant was. He did not. She said that, at that point, the Appellant approached her and commenced yelling at her again. She said that he was pointing and waving his hands around. She said she had to raise her voice in order to be heard by him when she was explaining her role in announcing delays. She denied shouting and yelling the "f" word at Mr Saxena. As he was continuing to yell, she said she went back into her cabin and slammed the door shut. She remained in the cabin until he left. She then commenced her platform and right of way duties. Ms Corcoran stated that she was so upset and shaken by the incident that she was crying. She could not be relieved at Central Station because of the delays that were being experienced as a result of the Carramar signal failure earlier that day. She had to take some 5-7 minutes to compose herself before she was able to continue her duties. Staff at Central Station were very supportive of her as they could see that she had been crying and reported the incident on her behalf. After the train departed to Revesby and while they were between Green Square and Mascot Station, she telephoned and reported the incident to a senior Operations Standards Manager (OSM) at Rail Management Centre (RMC). She said she was still upset about the incident many hours later. Ms Corcoran pointed out that she could understand and tolerate frustration and verbal abuse from customers but found it totally unacceptable to be approached and spoken to in such an intimidating and disrespectful manner by a fellow employee. 33Mr Mark William Badzmirowski, provided a statement in which he advised that he was employed as Customer Service Attendant and had been engaged on the 6 am to 2 pm shift at Museum Station on 11 July, 2011. He gave evidence that as he came out to flag the train, the Guard motioned for him to go over to her and asked him to remain with her. 34He provided the CCTV footage of the incident on the platform and provided still photographs in confirmation of every aspect of his evidence. The CCTV footage showed that at about 9.46 am on that day, as the train pulled into platform 2, the female Guard, now known to him as Ms Corcoran, gestured to him to approach her. He could not recall the exact words she said to him but they were to the effect that "A man was abusing me at St James". Whilst they were having that discussion, the train doors opened and he saw a male passenger alight from the door nearest to the guard's compartment. He said he recognised that man as a RailCorp employee because he was wearing full uniform under a checked jacket. He said the came straight over to the guard and proceeded to have a "heated raised voice conversation" with the guard during which he yelled, frequently pointed his finger at her and waved his right arm about. He recalled that the Guard had responded in a normal tone. The conversation they had was to the effect of: Appellant:You weren't making any announcements, I've been on the train for 15 minutes and you weren't making any announcements. Guard:I did make announcements and stop raising your voice to me. Mr Badzmirowski stated that the Appellant just kept going on and on in a loud voice about the guard not making any announcements. He said he did not hear either of them use any bad language. He said that Ms Corcoran was soft spoken. He noted that a young female passenger approached the guard's compartment but did not say anything to the Guard and did not appear to be associated with either the Appellant or the Guard. During the conversation between the Appellant and the Guard, he saw the Guard withdraw and close the door of her compartment. The Appellant turned to him and repeated that "She didn't make any announcements". Mr Badzmirowski said he had replied with words to the effect, "I don't care but you shouldn't speak to her like that!" He said that after the Appellant left, the Guard opened the door of her compartment and had a conversation with him. She could see that the Guard was visibly upset and near tears. She told him that she intended to lodge a complaint once she arrived at Central and he had encouraged her to do so. 35As soon as the train departed, he said he proceeded to the station control room on platform 2 and made the following entry of the incident in the Station Diary "Lady guard was abused by a railway worker who was passenger on train said she made no announcements". The Appellant's Evidence 36Mrs Poonam Saxena confirmed that there were only a couple of announcements made during the delay at Museum Station and they were inaudible because they were faint and unclear. She also confirmed that she and the Appellant had moved from the eighth carriage to the fifth carriage in order to try and hear the announcements better but were unsuccessful in their attempts. 37Mrs Saxena said she noticed that other passengers had become frustrated with the delay and the lack of explanation. She said she overheard the conversation between her husband and an adult passenger, Passenger 1 as described above. She observed her husband walk towards the Guard's cabin but did not hear the conversation with the Guard. All she said she heard was a loud, agitated female voice and the loud banging of a door. 38Mrs Saxena stated that when her husband returned, he made the comment to her that "She is a very rude lady". 39After they exited the train and as she and her husband walked along the platform to exit the Station, she said she noticed a train guard talking to a man who was in a RailCorp uniform and was standing on the platform. She observed her husband stop and have a conversation with the guard. She did not hear the conversation although she did hear the Guard say to her husband, "Fuck off". She said she felt insulted and humiliated on behalf of her husband. 40During cross-examination, she agreed that once she had alighted from the train she kept walking thinking that her husband was following her. She also agreed that she had stopped about half the length of a carriage (10 metres) away and waited for her husband to join her. Mrs Saxena insisted that the train Guard was speaking very loudly and told her husband very loudly to "fuck off" before she closed the door. She agreed that she had not made any complaint about the incident until she found out that her husband might lose his job over it. 41Mrs Saxena confirmed that she wrote to Mr Mark Abel on 2 January 2012 in support of her husband. 42Mrs Saxena pointed out that her husband is, by nature, a very friendly and helpful person, a hard worker and a blood donor. She confirmed that the dismissal has been a considerable financial and emotional burden on their family, particularly in view of the fact that she is disabled. She indicated that her husband's normal tone is loud and when he is explaining things, his tone is a bit louder. 43Mr Virendra Saxena, the Appellant, stated that during the train journey on 11 July 2011, he heard very few announcements over the train's loudspeaker and those that he did hear were inaudible. 44Initially the Appellant thought that the poor quality of the announcements was due to the audio system in the carriage he was in and therefore he moved from the 8th to the 5th carriage in order to hear the announcements and obtain a better understanding of the reason for the delay. During cross-examination, Mr Saxena agreed that two announcements had been made between St James and Museum Stations but argued that they were inaudible. 45The Appellant stated that when the train was going through the tunnel between St James Station and Museum Station, he overheard a conversation between two female passengers who were seated in front of him. One of the passengers then directed the conversation to him. He recalled the conversations as follows: Passenger 1:The train is running late and there are no announcements. Passenger 2:I can't understand the announcements. Passenger 1:Can you hear the announcements? Appellant:No. Passenger 1:Do you work for CityRail? Appellant:Yes. Passenger 1:Can you find out what's happening, why is there a delay? Appellant:OK, I'll try and find out. 46Although he was not yet on duty, the Appellant believed that, as an employee of RailCorp, it was his duty to notify the Guard of the problem with the announcements. 47During his evidence-in-chief, Mr Saxena stated that the women questioned the training provided by RailCorp in relation to announcements. That evidence was not included in his written statement. 48The Appellant said he proceeded to the Guard's compartment on his carriage and knocked on the door. A Guard who he did not previously know but now knows her as Jennifer Corcoran opened the door. He moved from behind the door and came in front of the door. He recalled the conversation they had as follows: Appellant:The train is getting delayed frequently. What is the cause of this? Is it possible for you to make an announcement that is loud and clear? People in the carriage cannot hear you. Guard:I have made two announcements. Appellant:Can you make your announcements a bit louder so that people can understand the situation? Guard:I am announcing. If you cannot hear me, it is not my responsibility. 49The Appellant stated that he was surprised by the Guard's response in view of the fact that he did not hold her responsible for train delays, did not feel any animosity towards her and was merely trying to assist her by informing her of the problem with the announcements. 50In his written statement, the Appellant said that the Guard then attempted to slam the door and he, in order to avoid the door coming into contact with his face, automatically moved his head backwards. In doing so, he said he placed his foot forward in order to secure his balance. That action, he said, caused the door to hit his foot and not shut. 51The Appellant said they resumed their conversation as follows: Appellant:Your announcements are not audible. Guard:Yes, they are, I was announcing, will you move your foot? 52During his evidence-in-chief, he said that his left foot was already in the doorway and stopped the door from shutting. He said the Guard said "Remove your foot" and something else which he did not hear because he was thinking about the passengers and was keen to report to them as to why the train was getting delayed. He said he moved back and returned to his seat. The Appellant said he removed his foot which was caught between the wall to the compartment and the door and the Guard shut the door. 53During cross-examination, the Appellant confirmed that he had not reported back to the female passengers as to the reason for the delay. He said he returned to his seat and told his wife that the Guard was quite rude to him and would not listen to him. 54A few minutes later, when the train stopped at Museum Station, he and his wife alighted from the train and began walking towards the front exit. As he passed the Guard's compartment, he noted that she was leaning out of the carriage and having a conversation with a Customer Service Assistant who was standing on the platform beside the train. 55The Appellant said that he stopped walking when he overheard their conversation was about him. During his evidence-in-chief he added that she was staring at him with a strange look. He recalled that the following exchange took place between him and the Guard: Appellant:I moved from the last carriage to the fifth carriage expecting to hear the announcements about the delay. They were not audible to passengers in firth or last carriage. Your announcement was not loud and couldn't be made louder. Guard:Fuck off and walk away. He said he had used hand and finger gestures to point out the carriages they had been in and their movement from one carriage to another. 56The Appellant said that he walked away after she yelled abuse at him feeling deeply insulted as the word is considered very abusive in his culture and was not a word that was used in his household. During cross-examination, Mr Saxena agreed that he did not walk away as soon as the guard shut the door. He remained and talked to the CSA who told him that he should not talk to people in the manner in which he talked with Ms Corcoran. It was pointed out to him that the guard would have admonished Ms Corcoran in the same way if she had indeed sworn at Mr Saxena. Mr Saxena insisted that she had yelled the words "fuck off" at him. 57During re-examination, Mr Saxena stated that he did not mean to annoy the Guard but had been taken by surprise because "the guard...talked in a.... unusual way to me". Mr Saxena also stated that he had not observed the Guard getting emotional or upset when he was talking to her while he was on the platform. 58The Appellant provided the following reasons for not reporting the incident to anyone: (1)He was preoccupied with his wife and the chores they had to undertake in town, including (a)attendance at a meeting concerning her entitlement to workers' compensation; (b)attendance at work for the start of his shift at 1.30 pm at Merrylands Railway Station; (2)He had been overcome with work at Merrylands Station on that day and had forgotten about the incident; (3)He held the view that escalation of the incident should be avoided; and (4)He was scheduled to take annual leave shortly after the incident and did not wish to make a complaint prior to his overseas vacation. 59Mr Saxena confirmed that the first time he complained about the use of the "f" word by Ms Corcoran was in his letter to the investigator, Derek Wilson, dated 25 September 2011. Mr Saxena also confirmed that he did not mention that part of the incident in his letter to Mr Mark Abel dated 2 January 2012 responding to the recommendation that his employment be terminated. It was put to him, during cross-examination, that if he had indeed felt deeply insulted by such words, he would have raised it again when he had the opportunity given to him to do so. 60In conclusion, the Appellant advised that he was sole breadwinner in the family and his termination had resulted in considerable financial and emotional hardship for him and family in view of the fact that he has not been able to obtain alternative employment. 61Mr Saxena pointed out that he has not been the subject of any disciplinary proceedings previously, had not been counselled nor warned about his behaviour and it had not been his intention to upset Ms Corcoran. Issue 62The Union submitted that the Board needs to determine two issues: (A)Whether the allegation by RailCorp can be substantiated on the available evidence; and (B)If the answer is yes, whether dismissal is the appropriate punishment in the circumstances or whether it is harsh. Submissions 63The Respondent pointed out that as an employee of RailCorp, the Appellant was bound by its Code of Conduct. In addition, as Customer Service Attendant, the Appellant was the public face of RailCorp and, therefore, was required to set an example and treat his colleagues with dignity and respect. 64It was submitted by the Respondent that the most disturbing part of the Appellant's evidence was the fact that he refused to believe that he was rude to the Guard on 11 July 2011 or that his behaviour towards her was inappropriate. He totally lacked accountability for this failure. 65The Respondent pointed out that the independent witness, Mr Badzmirowski, gave evidence that neither swore at the other but that Mr Saxena was louder than she was. It was contended that he could see that the guard was upset because he gave evidence that he admonished Mr Saxena telling him he should not speak to people in the manner that he did. 66The Board was urged to ignore the evidence of Mrs Saxena who confirmed, during cross-examination, that she had discussed the incident with her husband, she was at least five metres away from the incident on the platform and could not have heard the conversation and, finally, her husband had told her after the incident on the train that the guard was a rude lady. 67RailCorp's investigations had not revealed that the guard swore at Mr Saxena and therefore breached the Code of Conduct. It was contended that it was Mr Saxena who had called her "a stupid woman" and subjected her to his loud and expressive questions and insults. 68The Board was reminded that Mr Saxena's evidence changed a number of times in relation to the foot in the door issue. Firstly, during the investigations, he said that he put his foot in the door because he felt insulted. The excuse later changed to one where he had to protect his face and glasses and secure his balance. During the hearing his excuse changed to one of denial of his earlier evidence that he moved forward saying that his foot was in the range of the door the whole time and he had not moved. The Board was urged to accept the evidence of the guard that he actively put his foot in the door to prevent her from shutting it - an inappropriate action which added to the seriousness of his behaviour on that day. 69The Respondent can neither refute nor accept that he was talking to customers in the carriage and was providing customer service. Nevertheless, even if the Respondent was to accept that he was, he still breached a fundamental and important requirement of the Code and that is, treating his colleagues with courtesy, fairness and with dignity and respect. 70The Respondent contended that, the fact that the Appellant has failed to acknowledge his breach and has failed to provide assurances of his future behaviour, is of concern to it as it suggests that he may well approach other colleagues in the same manner in the future given his evidence and his wife's evidence that he was talking and gesturing in his usual manner. 71The Respondent, it was also contended, was obliged to provide a workplace that would allow its employees to go about their daily duties safely and without being subjected to shouting, bullying or pointing. 72Finally, the Respondent urged the Board to find that the dismissal was an appropriate penalty in the circumstances pointing out that the incident took place within the view and hearing of the travelling public and was captured on CCTV. 73It was submitted on behalf of the Appellant that he did not intend to cause the Guard any distress when he approached to find out why the train was late. 74It was pointed out that there was no CCTV footage of, or independent eyewitness to, the encounter in the carriage. Nevertheless, the Appellant did not deny the foot in the door incident. He admitted that it did occur but explained that it was to protect his face and he then immediately removed his foot. 75It was also pointed out that despite Mr Badzmirowski's evidence, the Guard had admitted that she had raised her voice at the Appellant when he was standing on the platform. Both the Appellant and Ms Corcoran had raised voices and Mrs Saxena would have been able to hear Ms Corcoran use the "f" word. 76Mr Saxena had offered an apology to the Guard before he became aware that his actions would lead to his dismissal as he had not intended to cause her any distress. 77It was pointed out that Mr Saxena had admitted to pointing when talking to Ms Corcoran. It was pointed out, however, that Ms Corcoran could also been on the CCTV footage waving her finger at Mr Saxena as she leant out of the Guard's compartment. It was contended that her actions belied the submission that she had been fearful for her safety or of being abused. It was also contended that the CCTV footage, on balance of probabilities, depicts Ms Corcoran telling Mr Saxena to "fuck off" as evidenced by Mrs Saxena. 78It was pointed out that the Appellant has never been the subject of any previous disciplinary proceedings and had actually received letters of acknowledgement from RailCorp for his performance. 79In conclusion, the Appellant urged the Board to find that the dismissal was harsh and unjust and to reinstate him to the position of Customer Service Attendant at Merrylands Station on 24 January 2012 and be paid his master roster from the date of his dismissal until resumption at work. The Findings 80It was not disputed that a Guard cannot hear the announcements they make over the intercom nor can they monitor whether the announcements are audible in all, some, or none of the carriages. 81It was also not disputed that, had the Appellant refused to remove his foot from the door, the Guard's only option would have been to use the signal bells or intercom to alert the driver that she had a problem and rely upon the driver to seek assistance for her. 82The Appellant provided three different versions of the part of the incident relating to his foot blocking the door from being shut. In his written statement, the Appellant said that when the Guard attempted to slam the door he, in order to avoid the door coming into contact with his face, automatically moved his head backwards. In doing so, he said he placed his foot forward in order to secure his balance. That action, he said, caused the door to hit his foot and not shut. During his evidence-in-chief, Mr Saxena said that his left foot was already in the doorway and stopped the door from shutting. He said he removed his foot which was caught between the wall to the compartment and the door and the Guard shut the door. In his letter to Mr Wilson dated 25 September 2011, the Appellant stated that he felt insulted because the Guard did not care to listen to him and wanted to slam the door in his face so "I had put my foot in the door and again requested to announce loudly". 83Cross-examination of Mr Saxena on the different versions did not provide any clearer response as he attempted to duck and weave his way through this maze as can be gleaned from the following exchange between the Appellant and Ms Robinson: Robinson Q:You have given some evidence about your foot blocking the door when she tried to close the door. You said today... your foot was already in the door and the door hit your left foot as she tried to close it, is that the evidence that you give today? Saxena A:Yes. Because after coming from behind the door when she opened the door, I came to the door and I was just standing there and conveying my message. Q:Is it your evidence that if she had continued to shut the door she would have hit your foot and your face, is that right? A:Yeah. Yeah. Yeah. The door could have hit across my ... face. Q:Is it the case then that you had stepped forward after she opened the door? A:No. I was standing behind the door the moment she opened the door, I came like that. Q:You move in towards her when she opened the door? A:It's the words are not very correct that I moved into the door, no. I came from behind the door to face the guard. I came just on the door. Q:So you moved within the range of the door. If we say when the door opens that there's a range that it covers to open? A:Yes. Q:You moved within that range, is that your evidence today? A:Yes. Q:I put it to you, Mr Saxena, that you've given different evidence about why you ....put your foot in the door.... I'd like you to tell the Board which one is true. In your statement in .... Exhibit 2, you say at paragraph 10 "Ms Corcoran then attempted to slam the door, to avoid the door hitting my face I moved my head backward, I also placed my foot forward to secure my balance". You said earlier that your foot was already in the door range and the door just hit your foot and you say in your statement that you placed your foot forward, which is it, which is true? A:I was actually standing on the range of the door, as you call it the range of the door and women she tried to close the door...I got, I mean it's automatic that the door could have hit across my face, so I just lean back to save my face. Q: You say now that you moved your foot forward as you did that, is that right? A:No. I did not move the foot forward. My foot was there in the range of the door. Q:In paragraph 10 of your statement when you say, "I also placed my foot forward", is that wrong? A:Which one? Q:Paragraph 10? A.Yes. Q:You say, "I also placed my foot forward" is that wrong? A:I placed myself, rather I should say, the foot, I placed myself on the - on the door and when the conversation was going on and she tried to close the door I just - the door had - having hit my foot, I saved my face and then I completed my sentence.... Q:Is it correct, Mr Saxena, that your foot was already within the range of the door or is it correct that you put your foot forward against the door? A:Yes. My body was there within the range of the door. Yeah. And my foot was there on the door. Q:When she went to close the door, did you or did you not actively put your foot in the door? A:No. Q:What you say in your statement, "I also placed my foot forward" that's wrong, is it? Y:Yeah. that is not very correct. Q:You say there that that action was to secure your balance, are you saying that's now wrong, as well, that's not why you did it? A:Yes. That is a balance because when I moved the face back of course or the door would have hit me, perhaps I might have lost my balance. Q:So you did place your foot forward to secure your balance? A:No. Q:You left your foot where it was? A:Yes. Q:So your balance had nothing to do with it, did it, Mr Saxena? A:The balance was to do with it, because if the door would have hit me, maybe in the hurry I might have lost balance. ................. Q:You have the letter to Derek Wilson in front of you? Y:Yes. Q:Please turn to the second page of that letter and the first paragraph reads, "She did not care to listen to me, reacted sharply and slammed the door on me. I felt insulted so I had put my foot in the door.... and again requested to announce loudly." Mr Saxena, your evidence there is that you placed your foot in the door because you felt insulted, are you saying that's wrong as well? A:What is the reason for being felt insulted because I wanted to convey the message to her and she did not take care of ... what I told her and she reacted very sharply and within a moment she tried to close the door... Q:and you put your foot in it to stop her? A:No, I was just on the door, just on the door, and that incident was so quick, maybe few seconds, maybe - I don't know exactly what, maybe about eight seconds or ten seconds or five seconds, I don't know, it was so quick and I mean not purposely anything. Q:Do you agree, Mr Saxena, that you've given three different versions of the door closing and your foot being in it? You've said in your response at tab 3 [to Mr Miller] that you felt insulted so you put foot in the door, you've said in your statement you put your foot forward to secure your balance and you say today that your foot was already forward and you didn't move it. Do you agree that those three things are different? A:If we combine all the three things the basic idea behind that was that when I just stood on the door and conveyed the message to the guard she yelled at me and in a non - I mean not responding correctly she yelled at me. So that was - I was - I felt - I mean bad and so just when I lean back to save my fact that was the balance point where I could have lost my balance, I could have lost the balance. Q:I put it to you, Mr Saxena, that you deliberately put your foot in the door to stop her closing it because you hadn't finished talking to her yet. A:I had conveyed the message but she didn't care for the message. Q:You say that what you were trying to find out is what the delay was, she hadn't told you what the delay was... A:No she didn't tell me. Q:So at that point that she tried to slam the door you hadn't finished talking to her, had you? A:Yes, I had .. told this thing about it and she said I was announcing and it's not my responsibility whether you heard it or not, so I just wanted to emphasise a second time that your voice was not audible at all. 84The evidence before the Commission leads to the inevitable conclusion that Mr Saxena deliberately moved forward and placed his foot in the doorway in order to stop the Guard from shutting the door thereby allowing him an opportunity to finish what he intended to say to her. 85Mr Saxena was in full uniform when both incidents occurred and therefore would have been identifiable by members of the public sitting the carriage and walking along the platform as a RailCorp employee. His conduct in both instances had the capacity to bring the Respondent into disrepute. 86The evidence of Ms Corcoran is to be preferred in relation to the incident involving the foot in the door bearing in mind the part of the cross-examination set out above. No employee has to put up with that kind of behaviour from another employee, particularly in a situation where there is a male aggressor and the female guard is alone in a compartment in a train carriage. Whilst I do not believe the incident would have been taken any further, it is the trepidation felt by Ms Corcoran at that point in time that is important to consider. 87Ms Corcoran is entitled to ask the Customer Service Assistant at the Station if he recognised the Appellant as she intended to lodge a complaint against him. Bearing in mind that Mr Saxena was upset because his wife was running late for an appointment, it seems extraordinary that he would walk past and then return to continue the conversation with her. 88The disciplinary action that may be taken by the Respondent may include one or more of the following: * caution or reprimand * fine of an amount not exceeding $100 * reduction in position, rank or grade and pay * suspension from duty without pay * dismissal (with or without notice) 89The Board acknowledges that Mr Saxena has received commendations in the past. It also acknowledges that Mr Saxena has not been the subject of any previous disciplinary warnings. Nevertheless, Mr Saxena has failed to acknowledge the seriousness of his actions in dealing with a colleague in the manner that he did in full view of the travelling public whilst both were in full uniform. He has failed to acknowledge the seriousness of his actions in putting his foot in the door to prevent the Guard from securing herself in the Guard's compartment. In the absence of such acknowledgement, the Board wonders what purpose the apology was supposed to serve. In the absence of such acknowledgement there is no guarantee that such behaviour would not recur in the future given that it is considered by both Mr & Mrs Saxena to be normal behaviour on his part. 90The Board acknowledges that the conduct displayed by Mr Saxena was contrary to his obligations under the Respondent's Code of Conduct. 91On that basis, the Board cannot make a finding that the dismissal was either harsh or unjust. ORDER 92The appeal of Mr Virendra Saxena against the disciplinary action of dismissal by RailCorp is disallowed. I Tabbaa AM 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: 29 August 2012