Marc Rosee and Rail Corporation of NSW ("RailCorp") [2012] NSWTAB 30

Transport Appeal Boards New South Wales Medium Neutral Citation: Marc Rosee and Rail Corporation of NSW ("RailCorp") [2012] NSWTAB 30 Hearing dates: 7 June 2012;Submissions 6 September 2012 Decision date: 10 September 2012 Before: Tabbaa C AM (Board) Decision: Appeal Disallowed Catchwords: Dismissal; Failure by Appellant to comply with Code of Conduct and Procedures by maintaining and promoting high levels of acceptable behaviour; Unacceptable behaviour by Appellant as a result of inappropriate and unsolicited touching of work mate; Harassment and bullying of work mate. Category: Principal judgment Parties: Mr B Edghill (Rail, Tram and Bus Union, NSW Branch) (Appellant)

Ms Melanie Robinson (Respondent) File Number(s): TAB 56 of 2012

DECISION

Introduction 1This is a decision in an appeal pursuant to clause 32 of the Transport Administration (Staff) Regulation 2005 against the decision of Rail Corporation of NSW ("RailCorp") to dismiss Mr Marc Rosee from the position of Signaller Grade 3 at Newcastle. 2Mr Rosee (the "Appellant") commenced employment with RailCorp and/or its predecessors on 3 March 1997 as Junior Station Assistant. He progressed through the ranks until his promotion to Signaller Grade 3 at Newcastle on 25 February 2002. 3On Friday, 8 April 2011, Mr Rosee told Signaller Matthew Carter that he had drawn to the attention of the Network Operations Superintendent, Mr John Miller, comments that the latter had made in the train register. Mr Carter continued to work for about a week after that without being questioned about irregularities in the train register book. Mr Carter was later stood down in relation to that entry but that had occurred after he filed a complaint against Mr Rosee for alleged inappropriate conduct. 4On 13 April 2011, Signaller Matthew Carter (the "Complainant") sent an email to John Miller complaining that the Appellant had twisted his nipples and put a finger into his anal area whilst walking up the stairs of the Newcastle Signal Box. 5On 14 April 2011, Mr Miller replied to the complainant, wrote to Sector Operations Manager, Ross Lussick, to inform him of the complaint, and attended at Newcastle Signal Box where he handed a memorandum to the Appellant asking him to respond to the complaint. 6Also on 14 April 2011, Mr Miller arranged for both the Appellant and the complainant to attend separate meetings with him and the Human Resources Business Partner, Cassandra Carcary. 7At the conclusion of those meetings, Mr Miller referred the matter to Ms Nadine Clench, Acting General Manager CountryLink and CityRail Sector 5 who subsequently referred the matter to Mr Lyle Fry, an investigator with the Respondent's Investigations Unit, who conducted a disciplinary investigation. 8Mr Fry obtained statements from the Complainant, Messrs Miller and Lussick and Ms Carcary. He also obtained a statement from Ms Angela Raven who had a conversation with the Appellant following the meeting with him on 14 April 2011. 9Mr Fry then forwarded a letter to the Appellant, dated 29 June 2011, notifying him of the allegation that he had breached the RailCorp Code of Conduct and inviting him to respond, in writing, to the allegation within fourteen days. 10The Appellant responded on 14 July 2011 denying the allegations against him. He explained that when he approached the complainant in the car park, the latter complained that he was tired leading the Appellant to reach out with one arm and pinch him on his upper torso area to "help waken him up". In addition, he explained that as he walked up the spiral staircase behind the complainant, he had brushed against him. 11The Appellant declined to attend a disciplinary interview with Mr Fry on 11 August 2011. 12Mr Fry concluded that the allegations were substantiated and, on 22 November 2011, forwarded the completed investigation report to the Disciplinary Review Panel for consideration. 13The Review Panel considered the report and made a preliminary recommendation that the Appellant be dismissed. On 12 December 2011, Mr Stephen Scott, Acting General Manager-Operations, wrote to the Appellant advising him that he had fourteen days in which to provide a submission in regard to the penalty and to submit any further information or material in support thereof. 14On 16 January 2012, the Appellant provided a written response denying the allegations and providing an explanation of his actions on that day. 15The explanation was considered and rejected on 6 February 2012 by the Review Committee. On 7 February 2012, Mr Scott signed the Appellant's termination letter effective from 13 February 2012. The Appellant was paid four weeks' wages in lieu of notice. The Appellant acknowledged receipt of the termination letter on 13 February 2012.