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. The Charge 16The allegations contained in the correspondence to the Appellant dated 29 June 2011 are as follows: (1)At or about 1340 hrs on 13 April 2011, Mr Rosee approached Mr Carter in the RailCorp car park near the entrance to the Newcastle Signal Box. He moved towards Mr Carter and reached out with both hands and grabbed and twisted the nipples of Mr Carter. (2)At or about 1340 hrs on 13 April 2011, Mr Rosee then followed Mr Carter up the spiral staircase of the Newcastle Signal Box. He then placed his hand between the buttocks of Mr Carter and pushed a finger against the anal area of his buttocks. RailCorp Code of Conduct & Dignity and Respect in the Workplace Procedure 17The rules in the RailCorp Code of Conduct ("the Code") that pertain to the allegations are set out below: 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: Put safety first in everything we do 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 "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 Treat members of the public and colleagues fairly, consistently and with respect... Section 6 ... You must not discriminate, victimise, intimidate or harass any other employees, contractors, consultants or members of the public for any reason ... 18The procedures contained in RailCorp's Dignity & Respect in the Workplace Procedure ("the Procedure") that pertain to the allegations are also set out below: Section 1.1 Purpose RailCorp is committed to providing a safe and equitable workplace, which is free of harassment and bullying and where employees treat each other and members of the public with respect and dignity. Section 3 Responsibilities [of employees] Complying with the Code of Conduct and this Procedure by not engaging in harassment or bullying Treating colleagues and customers with dignity and respect at work and during work-related activities Thinking carefully about their own behaviour and how it may impact others. Section 4Our Obligations RailCorp has a responsibility under anti-discrimination, occupational health and safety and industrial legislation to provide a workplace that is free from harassment, bullying and victimisation... These obligations mean that RailCorp must ensure that it does not engage in, or allow its employees to engage in, harassment or bullying behaviours. Section 5 It is unlawful for harassment or bullying to occur: during any work activity during any work-related social activity and/or during any work that an employee has to do for RailCorp outside the workplace itself, including attending conferences or training. All RailCorp employees have a specific legal responsibility to ensure that discrimination, harassment and bullying does not occur during any work or work-related activity. Harassment and bullying are also in breach of the RailCorp Code of Conduct. Section 8.1 Employees who engage in harassment or bullying of workmates, subordinates or others in the workplace or during work-related activities will be in breach of the Code of Conduct and this Procedure and may be subject to disciplinary action. The Respondent's Case 19Mr Matthew Carter provided a written statement in which he advised that he has been employed by the Respondent for approximately four years as Relief Signaller Grade 1 at Broadmeadow Signal Box. 20Mr Carter said he has known Mr Rosee from around August/September 2009. and became friends around mid-2010. They got along alright and had a common interest in train sets. He said he had to move his train set out of his parent's home and Mr Rosee told him he had spare space in his garage at home about 10-15 minutes away and could set up his train set there. 21He said that Mr Rosee gave him a key to the garage and he went there on a few occasions to work on his train set. He said Mr Rosee was not always at home when he went there and he often went there with a friend. 22He said that when Mr Rosee's flat mate moved towards the end of January 2011, he asked Mr Carter to pay him $50 per fortnight for accommodation of his train set. Mr Carter said he could not afford to do so and therefore moved his train set to his girlfriend's house. He said that there was no animosity develop between him and Mr Rosee as a result. 23Mr Carter stated that he arrived at work at 1335 hours in readiness for a 1400 hours start. As he parked his car in the parking spot beside the Appellant's car in the Respondent's car park, he noticed the Appellant putting stuff away in his car on the driver's side. He said that as he alighted from his vehicle, he said hello to the Appellant who was some three metres away from him. 24Mr Carter said he did not notice anyone else in the car park. He said that as he alighted from his vehicle, he saw the Appellant move back towards the signal box and lean on the boundary fence for the rail corridor. He said that he assumed that the Appellant was waiting to conduct the handover so that he could go home. 25Mr Carter denied that he had been drinking an energy drink at the time he alighted from his vehicle or that he had complained to the Appellant that he felt tired and run down. 26Mr Carter said that as he started walking towards the stairs that lead up to the signal box, the Appellant was 2 - 3 metres from the entry to the stairs. As he got level with the Appellant, he said the latter reached out towards him with both hands and grabbed him on both his nipples, using the forefinger and thumb of each hand. He said the Appellant twisted his right nipple with the left hand and twisted his left nipple with the right hand. He said he had a bag over one shoulder at the time and a cigarette in his other hand. At that time, he said he was not wearing anything under his RailCorp issue shirt. Mr Carter described the incident thus - [The Appellant] twisted my nipples inward in a very violent way and it hurt a lot. He ripped them inward with a lot of force and then let go. I felt an instant sharp pain and even after he let go I could still feel it was very sore and painful around my nipples. He said the following conversation took place with Mr Rosee: Carter: Fuck off, it wasn't funny, don't touch me. Appellant:[laughing] You like it. Carter:No I don't, fuck off. 27Mr Carter said he turned away and went towards the signal box to get away from the Appellant who was behind him at that stage. He said he walked in the door of the signal box towards the spiral staircase that goes up to the signal box area. He said that as he started going up the stairs he heard the Appellant behind him. He did not think anything of it because he was aware that the Appellant would have to sign off when he signed on and would normally have been waiting for him upstairs. 28He described what he felt when he was about a third of the way up the 14-20 steps staircase: I felt some form of penetration on my anus, it felt like someone was sticking a finger in my backside. My leg was raised and I normally go up 2 or 3 stairs at a time and my legs were apart and my legs open when I felt the pressure in my anus area. It was not on the cheek or the side, it was definitely in the hole. I jumped forward on the stairs and instantly spun around and I saw Mark bringing his right hand back from the area where I had been standing only seconds before. I felt violated and embarrassed by what he did. It did not actually hurt as it only started to push in but I was disgusted and upset by what he had done. I don't think I suffered any physical injury as a result of the finger pushed in to the hole and I did not see a Doctor afterwards. 29Mr Carter said he saw the Appellant's hand coming down from his shoulder height to his hip and he was laughing. Once again, he said he told the Appellant to "fuck off" but he continued to laugh and he appeared to find it very funny. He said he jumped up the last of the stairs so as not to give the Appellant another opportunity to do it again. He said that, at the time, he was wearing RailCorp issued long, light weight, cotton pants. 30 Mr Carter said he had to conduct the safety handover and therefore had to ask the Appellant if there were any delays or issues he needed to be aware of. The Appellant replied in the negative and left the work site. 31During evidence-in-chief, Mr Carter confirmed that this behaviour had occurred in the past but he had not complained about it because he wanted to try and make it stop by himself. When the behaviour did not stop, he elected to report it rather than get himself into trouble by taking action. 32Mr Carter said he told Ms Michelle Brown, the Acting Network Operations Superintendent, when she arrived on site between 1430 and 1500 hours to drop off uniforms. She asked him to put his complaint in an email and send it to her which he did (with copies to Ross Lussick and John Miller) at 9.08 pm on the same day. In his email to them, Mr Carter stated that Mr Rosee's actions made him feel embarrassed, belittled and disgusted. He asked that the matter be dealt with as discreetly as possible. 33Mr Carter said he was concerned that Mr Rosee was discussing the incident with other staff and it was becoming common knowledge. Firstly, on 23 April 2011, he found a number of Facebook comments about him which upset him. Mr Miller sent the persons concerned an email reminding them of the provisions of the Code of Conduct and the comments ceased. Secondly, in conversation with another signaler at Newcastle, Nick Wheeler, the latter advised him that Angela Ravlen told him that the Appellant said to her on 14 April 2011 "even though I did it, it doesn't mean I'm gay". 34Mr Carter said that his fears were realised when he discovered the Facebook jokes about him on 23 April 2011 by four other named employees. He started to cry uncontrollably and telephoned RailCorp's Employee Assistance Program. He was referred by that Unit to John Hunter Hospital Sexual Assault Unit. 35He supplied copies of contemporaneous notes he had kept of the above incidents. 36Mr Carter denied that he has ever pinched Mr Rosee's nipples; or that he pinched or punched him causing him pain; or that he dropped his pants to expose his underpants and rubbed his crotch towards Mr Rosee; or mentioned to him that he was depressed; or inform him that he had blacked out at work. 37Mr Carter admitted that he did, on one occasion, write random words in the train register but pointed out that he was allowed to work for about a week and was not stood down over those comments until after he had made the complaint about Mr Rosee. 38He also confirmed that he had socialised with Mr Rosee and one night when they had gone out, they had a good win on the pokies, he had too much to drink as a consequence and does not recall that night at all. He did not recall engaging in light rough-housing with Mr Rosee. He also agreed that, when the friendship developed with Mr Rosee, he had confided in him about problems he was experiencing with his personal life and with his girlfriend. 39Mr Carter agreed that their friendship started to cool after he attended a barbeque at Mr Rosee's house and Mr Rosee wrestled him to the ground and pinned him there twice. He stated, in evidence-in-chief, that he was not a willing participant in the wrestling pointing out to as far as he was concerned, male bonding was confined to going to pubs on a Sunday afternoon, having a few drinks, listening to bands but not engaging in any physical activity. He insisted, during cross-examination, that he had told Mr Lussick that the wrestling had not been "muck around" and he stopped socialising with Mr Rosee from that time (around November 2010). 40During cross-examination, Mr Carter said Mr Rosee had not pinched his nipples before that incident but had, in the past, reached out between his legs and grabbed his testicles as he has bent over to write in the train register book. He said the "nipple cripple" had occurred in the car park but he had not noticed anyone else around. He pointed out that there were no witnesses to the incidents in the Signal Box because in Newcastle only one person per shift works in the signal box except for the brief period of the changeover. 41Mr Carter agreed, during cross-examination, that he was stood down over the train register comments until he was found medically fit as a result of a medical check up he was required to attend. He agreed that he had some significant personal issues that were affecting him at around the time of the incident but denied that he had exaggerated the incident as a result of being upset with the Appellant. During re-examination, Mr Carter clarified that he was stood down over that entry following Mr Rosee's interview with Mr Miller in relation to his complaint. 42In relation to Mr Rosee's application for reinstatement, Mr Carter expressed the following feeling, "[I] would never, never work with him again, be in a room with him again... Don't want what happened possibly happen again, be in a room with him again". 43Mr John Charles Miller, Network Operations Superintendent-Hunter Valley, provided a written statement in which he confirmed that he had received the email complaint from Mr Carter on 14 April 2011 advising that he had been subjected to inappropriate behaviour by Mr Rosee. He said he sent an email to his immediate Manager, Mr Ross Lussick, Sector Operations Manager, who began to carry out inquiries in relation to that complaint. 44Mr Miller said he wrote a memorandum to Mr Rosee in regards to his alleged conduct and handed it to him in the Signal Box at approximately 7 am. Mr Rosee forwarded to him an email reply at 7.09 am in which he admitted the pinching but not the issue with the finger on the staircase. Mr Miller replied at 7.19 am advising that Mr Rosee was required to attend the office at Newcastle at midday to discuss the matter. 45Mr Miller said that Mr Carter arrived for the meeting with him, Mr Lussick and Cassandra Carcary, HR Business Partner, at 11 am with Mr Neville Odgers, Duty Manager, as his support person. He stated that Mr Carter was visibly upset when relaying the incident and had tears in his eyes prompting them to call a coffee break during the interview and offering him the services of the Employee Assistance Program. 46Mr Miller said Mr Rosee turned up and was asked to go for a walk as Mr Carter was clearly very uncomfortable seeing him. Before the meeting with him concluded, Mr Carter was directed not to discuss the matter with anyone else as it was an ongoing investigation and was confidential. When Mr Carter's interview concluded, Mr Odgers took him up the street for a coffee. 47Mr Rosee was located and brought into the meeting at about midday. Mr Miller said he was offered the opportunity to have a support person in attendance but he preferred to "get on with it". He pointed out that there was a local union representative available if Mr Rosee wished to have a support person. 48Mr Miller said that Mr Rosee conceded that the nipple cripple had taken place but denied the incident on the stairs. He then proceeded to discuss his concerns in relation to Mr Carter's conduct. He was directed by Mr Miller and Mr Lussick not to discuss the matter with anyone else as it was an ongoing investigation and was confidential. The meeting with him concluded and he was sent back to finish his shift in the Signal Box. He was relieved by Angela Revlan. 49A discussion ensued between Messrs Miller and Lussick and Ms Carcary. Mr Miller said that as Mr Lussick was concerned about the allegations made by Mr Rosee in relation to Mr Carter being tired and making an entry in the register without recalling it, Mr Carter was called back into the meeting with his support person and interviewed about those matters. As a result, both Mr Lussick and Ms Carcary felt it was appropriate to stand Mr Carter down from Rail Safety work until he had undertaken a triggered category 2 medical. Mr Carter was advised of that requirement both orally and in writing. 50Mr Miller said that Mr Rosee was served with an investigation letter on 15 June 2011 while on duty in the Signal Box. He pointed out that it could not be done earlier because Mr Rosee was off work sick. 51In conclusion, Mr Miller said that he has had occasion to counsel Mr Rosee on a number of occasions and was also aware that he was involved in a similar incident in 2006 at Mount Victoria resulting in his dismissal which was successfully appealed to TAB. 52Ms Cassandra Michelle Carcary, HR Business Partner Country Link Call Centre and Sector 5, provided a statement in the proceedings in which she confirmed that Mr Carter had been visibly agitated, emotional and embarrassed when relating the incident at the meeting on 14 April 2011. She confirmed that he said the harassment had occurred "3 or 4 times" and that Mr Rosee had previously "grabbed me on the nuts". 53Ms Carcary said she had advised him of the services available to him through the Employee Assistance Program and told him that it was his decision to involve the Police or not. She said that he appeared to be satisfied with the actions proposed by management before he left the meeting. 54Ms Carcary said she took notes at the meeting and specifically recorded during the meeting with Mr Rosee that he confirmed "I did do the nipple pinch, but I didn't poke him up the arse". A copy of those notes were attached to her statement. 55Ms Carcary recalled that Mr Rosee said that whilst working on their model trains, he and Mr Carter often "did rough wrestling stuff" and Mr Carter had not complained about wrestling other than to complain that it hurt. Mr Rosee considered it as "just male bonding". 56Ms Carcary said she was concerned that Mr Rosee raised issues that Mr Carter suffered from black outs and was a safety risk yet he had done a handover to him earlier that day and on other occasions and did not seem to grasp the serious nature of the allegation he was making against Mr Carter. 57When Mr Carter was called back into the meeting, Ms Carcary said he confirmed that he had been tired and had an issue with his memory due to lack of sleep. A decision was made to remove him from rail safety work until he had been medically assessed. 58Mr Ross Matthew Lussick, previously Network Operations Superintendent, was no longer in the employment of the Respondent and was not available to give evidence on the day. The Union did not object to his statement being tendered in the proceedings. 59Mr Lussick said he had taken extensive notes which he destroyed after preparing file notes and a memorandum to the Acting General Manager, Nadine Clench. He was also granted access to Ms Carcary's notes. 60Mr Lussick's evidence was very similar to that of Ms Carcary. He also recalled that Mr Rosee admitted the nipple pinching but not the finger jab. 61In the File Note prepared by Mr Lussick, it was noted that Mr Carter denied ever blacking out but admitted to not remembering what he had been doing for a 2-3 hour period at work and that he had a medical condition which required him to have a 2-yearly medical examination. In addition, he was experiencing financial difficulties that were causing him stress. 62Ms Angela Mary Ravlen, Signaler, provided a statement in which she stated that she had received a call from management at approximately 8 am on 14 April 2011 and asked to proceed to the Newcastle Signal Box to relieve Mr Rosee who was required to attend a meeting. She relieved for the remainder of Mr Rosee's shift from about midday and then continued to do Mr Carter's shift as he was relieved from that shift. 63Ms Ravlen stated that while she was in the Signal Box with a trainer, Peter Frederickson, Mr Rosee returned at about 1 pm. When asked what the meeting was all about, she said Mr Rosee showed her the entry made by Mr Carter in the Train Register Book from a week earlier. She noted that some train times were missing for a number of hours and some of the writing was illegible. She said Mr Rosee explained to her that Mr Carter was having some mental health issues and that his girlfriend had or has some drug problems which may be stressing him out. 64Ms Ravlen said that they had continued to chat about unrelated issues for some time then, while leaning on the signal box panel, just before finishing his shift, Mr Rosee blurted out words to the effect that "I don't care what anyone says I am not gay". She said she was surprised because it was completely out of context and responded that she had not heard anyone suggest that about him. She said she simply did not want to get involved in the rumours about them. 65Ms Ravlen also recalled that Mr Rosee mentioned Mr Carter again a few days' later. She said she told Mr Rosee that she did not want to talk about the matter - that was before she was formally advised by management not to discuss the matter with either the Appellant or the Complainant and, as at the time of preparing her statement, she still did not know what occurred between both men. The Appellant's Case 66The Appellant forwarded an email to Mr Miller at 7.09 am on 14 April 2011 in response to "your phone call today ... concerning me pinching his nipple and placing a finger in his behind...". Before addressing the allegations, the Appellant went on, for the first time, to make complaints of his own about the Complainant: * On many occasions he has dropped his pants and rubbed his crotch and pushed his behind towards me as I was walking up the stairs to the signal box. * Pinched and punched m on the arms causing bruising. * Many times expressed he is tired arriving to work. * Arriving late to work and treating it as a joke. * Saying he is depressed, regarding his home life and situation. * Always saying he is the best signaller in the area but always leaves the signal box in a messy state and unfinished paperwork. * On the 7.4.11 after I have relieved Mr Carter he told me about he was having blackouts and writing random words in the TRB. On page 128 for train N174 has written "Once Why Being for choice". Mr Rosee concluded by admitting to pinching Mr Carter but not to shoving his finger up his behind. He offered an apology to Mr Cater for any actions which Mr Carter found hurtful and offensive. 67Mr Rosee provided a written response to Mr Lyle Fry, Senior Investigator, in relation to the allegations in which he stated: In response to this allegation (nipple cripple): I deny reaching out with both hands moving towards Mr Carter, and twisting the nipples of Mr Carter. I did approach Mr Carter in the car park near the Newcastle Signal Box. After Mr Carter stated he was tired I reached out with one arm and pinched the upper torso area of Mr Carter to help waken him up. In response to the finger in the anal area: I deny having my hand or fingers on or near Mr Carter's buttocks or anal area at anytime. As we where both walking up the spiral stair case, Mr Carter was walking slowly up the spiral staircase, and brushed against him on the spiral staircase. 68Mr Rosee provided a written response dated 16 January 2012 to the preliminary view by RailCorp to terminate his employment. Once again, the Appellant made it all about Mr Carter leading up to the insinuation that the incident was fabricated because of their failed friendship and the fact that he had reported Mr Carter's so-called "blackouts" to management. * He contended that Mr Carter developed an alcohol problem when he had issues with his girlfriend and became aggressive towards him when drunk; * He contended that it was he who asked Mr Carter to remove the model train set from his garage because he needed the space resulting in Mr Carter ceasing to socialise with him and their group of friends with a similar hobby; * Mr Carter resumed his association with his former girlfriend leading to a further rift in the relationship with him; and * On 7 April 2011, he had telephoned the Network Superintendent's office to advise of concerns he had in relation to the advice given to him by Mr Carter that he was having blackouts and was also writing random words in the train register. Having provided that preamble he went on to explain that Mr Carter had complained of being tired and run down when he alighted from his car on 13 April 2011. Mr Rosee said that he had, "in a joking manner", grabbed Mr Carter somewhere on the upper torso and said "Come on I want to go home" leading Mr Carter to wave his arm at him and proceeding ahead of him into the signal box. In conclusion, he denied the allegation of bullying and harassment and/or inappropriate behaviour towards Mr Carter. 69During evidence-in-chief, Mr Rosee said that he would never grab anybody's testicles. He said that he and Mr Carter had the occasional wrestling match or "male bonding" outside of work and sometimes during work but he had never grabbed any sensitive areas of his body. He contended that any roughhousing that occurred was started by Mr Carter who had never told him to stop touching him. 70During cross-examination, Mr Rosee confirmed that he was asked if he wanted a support person at the meeting on 13 April but he said he responded that he could not get a support person. He said he was not allowed an opportunity to obtain a support person as management wanted a response to their questions immediately. 71Mr Rosee admitted that Mr Carter had sworn when he pinched him but denied that Mr Carter said he did not find it funny and asked him not to touch him. He believed that Mr Carter swore because he was grumpy as a result of being tired. 72Mr Rosee further denied that he had pushed his finger against the anal area of the buttocks of Mr Carter. Submissions 73The Respondent submitted that, by subjecting Mr Carter to bullying and harassment and/or inappropriate behaviour, the Appellant failed to: Comply with the Code and Procedures Always act in the best interests of RailCorp Maintain and promote high levels of acceptable behaviour Carry out his duties courteously and fairly Treat colleagues fairly, consistently and with respect Treat Mr Carter with dignity and respect at work and Think about how his behaviour may impact Mr Carter The Respondent elaborated on those points in its submissions. 74It was submitted on behalf of the Appellant that the appeal should be upheld and the decision to dismiss set aside on the following bases which were elaborated upon in the submissions: a.The allegations cannot be substantiated on the evidence available; and b.Even if the Board can be satisfied that some form of inappropriate conduct took place, the prior relationship and interaction between the two men means that such conduct should not be considered to amount to bullying and/or harassment; and c.Even if the Board can be satisfied that some form of inappropriate conduct took place, dismissal is too harsh in the circumstances; and d.Mr Rosee was denied an appropriate level of procedural fairness during the investigation. Findings 75Mr Carter made a written note of the incidents immediately after they occurred. The report he provided to Ms Brown and in his written reports, his interviews and the disciplinary hearing did not waiver from the evidence he gave before the Commission. 76The evidence indicates that Mr Carter was clearly distressed during the interview conducted a few hours later that day and the interview had to be stopped a couple of times to allow him to compose himself. He was still very visibly upset when he gave evidence before the Commission. 77In contrast, Mr Rosee's evidence was evasive as he ducked and weaved in order to avoid providing a straight answer to questions during cross-examination as can be seen below. 78Mr Rosee chose to disparage Mr Carter when asked to provide responses to allegations in order to create a scenario for the excuses he was about to make as to the reasons why Mr Carter would make allegations against him. 79Mr Carter's financial or domestic situations have absolutely nothing to do with the offences alleged. Mr Carter's only blame is that he had confided his private affairs to a work mate and, in addition, he had failed to report the earlier incidents when he was touched by Mr Rosee. 80Mr Carter's financial and/or domestic situations are situations that all persons go through at some stage or stages in their lives. The fact that he was vulnerable at a particular stage in his life does not give any other work mate or friend the right to take advantage of his vulnerability and delicate situation. 81Mr Carter gave evidence that he had not invited the attention from Mr Rosee. In addition, Mr Rosee, by his own evidence, indicated that their relationship had soured and Mr Carter had stopped socialising with him and their group since about October 2010. 82During cross-examination, Mr Rosee denied that he had admitted in his initial response, and later at the meeting on 13 April 2011, that he did the "nipple pinch". The following exchange took place with Ms Robinson: Robinson:Now you've said in your email that you've written a few hours earlier "yes I did pinch Mr Carter", so you're saying that now a few hours later ... you did'nt say that you pinched Mr Carter? Rosee:They asked that question and I said well I was trying to define the words and I was trying to put it in the right words and it was not yes per se a pinch as in a hard pinch. It was more of a - again trying to find the right word for it, it is pretty hard - there wasn't exactly a hard pinch or a painful pinch and as I said or grab or squeeze. Q:I put it to you that the pinch or the squeeze was on the nipple, do you agree with that? A:No. Q:So when Mr Miller first put to you that the action was "nipples squeezed" your response wasn't no I didn't squeeze his nipples was it, you response was "yes I did pinch Mr Carter"? A:Yes. Q:So you didn't deny squeezing the nipples did you? A:I didn't deny squeezing the nipples because I didn't squeeze his nipples. I squeezed - I pinched him in the chest area, I couldn't define an exact body part that I pinched because it was with my right hand and I wasn't looking where I was doing it. Q:Now you've just said you didn't deny squeezing the nipples because you didn't squeeze the nipples is that your evidence? A:Well I'm saying that I didn't squeeze the nipples or I don't think I squeezed the nipples because I didn't put my hand in that place, I don't think I put my hand there ... Pinch yes but I didn't define the location.... 83In other words, the Appellant did not deny directly the allegation that he had pinched or squeezed Mr Carter's nipple/s. He answered in the affirmative leaving it open to himself to come up with a different explanation once he had time to absorb the gravity of the situation. 84There were three independent reports from witnesses indicating that the Appellant had admitted to a nipple pinch. 85It is noted that Mr Carter already told the Appellant not to touch him when the second incident occurred on the stairs leading up to the signal box. 86When Mr Rosee was asked to explain how it was possible that his head would have brushed against Mr Carter's leg given that the staircase was a narrow, steep spiral staircase. He explained that he was looking down responding to a text message he had received on his mobile phone which he held in his right hand and was holding on to the rail with his left hand. 87That explanation arose for the first time during his cross-examination. Mr Rosee had not provided any explanation in relation to this allegation prior to the hearing. 88The Respondent is obliged to ensure the health and safety of all of its employees and to ensure the safety of its passengers. It is noted from the evidence tendered that the Appellant had appealed a similar penalty in 2006 and his appeal was upheld albeit a different penalty was applied. The fact that he has been through similar proceedings should have provided a warning to him, particularly in relation to working in such close proximity to other employees. 89The Board finds that the allegations made by RailCorp are substantiated. 90There was no evidence before the Board that Mr Rosee had been denied procedural fairness. 91Disciplinary options available to the Respondent may include: * 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 92The Board has considered the appropriateness of those options and finds that the decision to dismiss Mr Rosee is appropriate in the circumstances detailed above. Order(s) 93The appeal of Mr Marc Rosee 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: 10 September 2012