Mooney v RailCorp [2012] NSWTAB 31

Transport Appeal Boards New South Wales Medium Neutral Citation: Mooney v RailCorp [2012] NSWTAB 31 Hearing dates: 28 June and 12 July 2012 Decision date: 13 September 2012 Before: Bishop C (Board) Decision: Appeal allowed - orders issued Catchwords: PUBLIC SERVICE - discipline - rail employee - breaches of Code of Conduct - allegation of failed drug test due to tampering/dilution - denial of allegation - investigation - misconduct found - dismissed - reinstatement and back pay sought HELD - appellant truthful - extensive attempts to prove innocence - no evidence a drug user - no direct evidence of interference - reliance on evidence of pathology collector - no independent recollection of test - would have followed procedures - possible error in procedures - innocent mistake possible - appellant not responsible for tampering with sample - unblemished record - reinstatement with back pay ordered. Legislation Cited: Occupational Health and Safety Act 2000 Transport Administration Act 1988 Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 James v RailCorp [2012] NSWTAB 27 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 440 New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 Ryan v RailCorp [2012] NSWTAB21 Category: Principal judgment Parties: John Mooney (Appellant) Rail Corporation of NSW (Respondent) Representation: Mr B Edghill Rail,Tram and Bus Union NSW (Appellant)