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) Ms A Baxter Rail Corporation of NSW (Respondent) File Number(s): TAB 185 of 2012 DECISION Introduction 1Mr Mooney commenced employment with RailCorp on 2 July 2007 as a Trainee Driver. He was confirmed as a Train Driver on 29 April 2008 and worked out of Central and then Hornsby. His substantive position as at the date of his dismissal was as a Train Driver. 2On 21 March 2012, Mr Mooney was notified by RailCorp that he was dismissed for breaches of the RailCorp Code of Conduct (the Code) and the RailCorp Drug and Alcohol Policy (the Policy). 3On 21 March 2012, Mr Mooney lodged an appeal in respect of his dismissal. On the Notice of Appeal he indicated a plea of " Not Guilty". 4The matter was listed for disciplinary conciliation before Commissioner Ritchie on 19 April 2012 at which time conciliation took place. As no settlement could be reached between the parties, directions were issued as to the filing and exchange of written cases and statements pursuant to Practice Note 22 and the appeal was re-allocated to the Board as currently constituted and set down for hearing on 28 June 2012. A further day was required however and the hearing continued and concluded on 12 July 2012. 5RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. Issue(s) 6Mr Mooney pleaded not guilty to the allegations and sought that the penalty of dismissal be set aside and that he be reinstated to his position with RailCorp as from the date of his dismissal. It is therefore the Board's task to determine whether the allegations against Mr Ryan are sustained, and if so, the appropriate penalty to be imposed. Background and Chronology 7The following Background and Chronology has been drawn from the evidence and written submissions before the Board as filed by the parties. 8At approximately 7am on Tuesday 11 October 2011, RailCorp Testing Officer, Ricardo Fredericks attended Hornsby Train Crewing to conduct random urine drug testing of Train Drivers and Train Guards at that location. 9Mr Mooney, whose shift had commenced at 5am, answered a series of questions and signed a 'Random Test: Drugs - Contemporaneous Notes' with Mr Fredericks at approximately 8:45am (Exhibit 1-D8). 10Mr Mooney was then referred to Laverty Pathology Collector Ms Jhuma Bhattacharjee, who collected his urine drug test at approximately 9am in accordance with the standard procedure for urine drug testing (Exhibit 1- D21). as part of the standard collection procedure, Ms Bhattacharjee read the temperature strip on the container holding Mr Mooney's urine sample and recorded this as 34 degrees Celsius on the 'Drug Testing Control Form' (Exhibit 1-D9). Ms Bhattacharjee also tested the creatinine level of Mr Mooney's urine sample and recorded this as "normal" on the 'Drug Testing Control Form' (Exhibit 1-D9). Both steps were carried out in front of Mr Mooney. 11At the completion of the collection procedure Ms Bhattacharjee asked Mr Mooney to confirm, by signing, that the specimen containers were sealed with tamper-evident seals in his presence and that the information on the Drug Testing Control Form was correct, which he did (Exhibit 1-D9). 12When subsequently analysed by Laverty Pathology at its laboratory on 14 October 2011, Mr Mooney's urine drug sample returned a creatinine level of 0.1 mmol/L. This caused the sample to be reported as, "not of human origin, or has been diluted after voiding". Re-collection was recommended "under an increased level of supervision" (Exhibit 1-D10). The Australian Standard for drug testing, AS/NZS 4308:2008 specifies that if the creatinine is less than 50mg/L (or 0.44mmol/L) further testing for dilution shall be undertaken and "the laboratory report should indicate that the specimen characteristics are not consistent with human urine" (Exhibit 1- D13). 13Mr Mooney underwent a second urine drug test on 26 October 2011 which had acceptable creatinine levels and returned a negative result (Exhibit 1- D14 & D15). 14On 27 October 2011, Mr Mooney was removed from Rail Safety Work pending further investigation (Exhibit 1-D16). 15The matter was referred to the RailCorp Investigations Unit (RUI) for a disciplinary investigation to be conducted. On 15 November 2011, Mr Brian Healy, Investigator with the RUI wrote to Mr Mooney setting out the following allegation, requesting a written response within 14 days, and attaching to the letter a copy of the RailCorp Discipline Procedure and the Code (Exhibit 1-D2): On Tuesday 11 October 2011 about 0900 hours whilst on duty at Hornsby Train Crewing, you failed a random drug (urine) test by providing a sample that was either not of human origin or was diluted after voiding. 16Mr Mooney provided a written response to the allegation letter dated 24 November 2011 ((Exhibit 1-D3) and in summary relevantly submitted the following: He had commenced work at 5am on 11 October 2011. He drank five to six cups of water and took a couple of Nurofen due to flu symptoms and the effects from a root canal he had on 8 October 2011. The Pathology Collector "opened a bag that had an elastic band around it" and completed paperwork which included asking him questions about what medication he had taken over the two previous weeks. He told her that he had taken Xanax on 16 September 2011, two blue Demazin tablets the night before and one Nexium daily. He forgot to inform her that he had taken Nurofen that morning, cough mixture the night before and had received a local anaesthetic and been prescribed Panadine Forte. They then proceeded to the ladies toilet. Mr Mooney "went into the cubicle with her outside and carried out what was requested". The Pathology Collector conducted a temperature test and said it was okay. They proceeded back to the original room where the Pathology Collector filled in the vials and a number of forms which he verified. The Pathology Collector then said she needed a "number of some kind" and was trying to call someone on her mobile to retrieve the number. She was unsuccessful. She told him that the number wasn't very important and asked him to sign the form without it on there. He signed the form and initialled another form also. He was told to return to the RailCorp Testing Officer and give him another number. The Pathology Collector was still trying to contact someone for the first number unsuccessfully. He waited for the Testing Officer for ten minutes, gave him the number and resumed his normal duties. On 14 October 2011 he went to his doctor with reflux and his Nexium was increased to 40g to twice a day. On 18 October 2011 he returned to his doctor with worsened flu symptoms and was prescribed Doxycycline 100g tablets and reduced Nexium. On 20 October 2011 he was informed there was a problem with his urine drug test and that an appointment had been made for him to attend for a further test on 26 October 2011, which he attended. On 27 October 2011 he was removed from safe working duties and told that the sample from his first urine drug test had been tampered with. 17On 30 November 2011, Mr Healy sent a letter to Mr Mooney inviting him to attend a voluntary disciplinary interview (Exhibit 1-D4). Mr Mooney accepted the invitation and attended an interview on 6 December 2011 (Exhibit 1-D5). During the interview Mr Mooney relevantly stated the following : He had been tested about ten times before 11 October 2011; The door was open at the time he produced his urine sample. The Pathology Collector was standing behind him as he "peed into the container" and then handed it straight to her; The Pathology Collector "did everything as normal... there was nothing out of the blue, there was nothing... different about the whole procedure"; Confirmed his written response of 24 November 2011 as a "true account". When the procedure was coming to an end the Pathology Collector was trying to get through to someone on her mobile. He asked her "what's with the number?" and she said, "Look, the number, it's just for the paperwork". She was writing it on the top of whatever paperwork she had, on the corner. After about 10 minutes she said she got the number and had written it on the paper. He was unable to identify the number to Mr Healy; He has a symptom called oesophagus spasm for which he takes Nexium once per day. It causes him to drink a lot of water. 18Mr Healy considered Mr Mooney's response and obtained documentation relevant to the urine drug tests. Mr Healy also obtained a Release of Information from Mr Mooney to enable RailCorp's Chief Health Officer, Dr Armand Casolin to speak to his treating doctor/specialist about the matters raised by him (Exhibit 1-D17). Dr Casolin stated that none of the factors raised by Mr Mooney would have affected the outcome of his urine drug test (Exhibit 1-O). It was therefore unnecessary for Dr Casolin to speak with the treating doctor/specialist. 19Mr Healy found the allegation against Mr Mooney to be substantiated and his Investigation Report was forwarded to the Disciplinary Review Panel (DRP) for consideration on or about 16 January 2012 (Exhibit 1-D). 20On 25 January 2012, the DRP convened to consider the allegation and finding and to make a recommendation. The DRP's preliminary recommendation was that Mr Mooney be dismissed without notice. 21On 30 January 2012, Mr Mooney acknowledged receipt of a letter from RailCorp informing him that a preliminary view had been formed that he be dismissed. He was invited to provide submissions in relation to RailCorp's preliminary view within 14 days (Exhibit 1-E). 22Mr Mooney provided a written response to the preliminary view by letter of 7 February 2012 (Exhibit 1-F). His response included a letter from Greech Partners Solicitors, who made the following relevant points on his behalf: On the day of the test he was not asked to empty his pockets; He had witnesses to his movements between the times when the collectors arrived at Hornsby until he provided his specimen; The Drug Testing Control Form contained no notes to indicate anything unusual; He observed the collector calling someone on her mobile phone to obtain a number and when he asked he was told it did not concern him; He had a telephone conversation with a representative at Laverty Pathology on 4 November 2011, during which there was no suggestion of wrongdoing; and He gave consent to RailCorp speaking to his doctors/specialists but this had not occurred. 23Mr Healy reviewed Mr Mooney's response and provided an email summary for the DRP dated 14 February 2012 (Exhibit 1-G). The DRP reconvened on 20 February 2012 to consider Mr Mooney's response. It requested that the matter be referred to Investigations for review as to why the creatinine level shown on the Drug Testing Control Form (Exhibit 1-D9) was "normal" (Exhibit 1-HI). Mr Healy sought the advice of RailCorp's Chief Health Officer, Dr Armand Casolin and provided a Memorandum in response to the DRP dated 21 February 2010 (Exhibit 1-HI). 24The DRP reconvened on 16 March 2012 and made a final recommendation of dismissal. On 21 March 2012 Mr Mooney acknowledged receipt of the letter from RailCorp dated 21 March 2012 informing him that he was dismissed effective 21 March 2012 (with three weeks' salary paid in lieu of notice) (Exhibit 1-JK). 25On 25 May 2012, Mr Mooney had a sample of his pubic hair removed by his GP, Dr Saha, which was then placed in a pouch and secured with a seal and sent to Forensic Science SA, a division of the Attorney General's Department of South Australia. This was confirmed in a letter from Dr Saha dated 18 June 2012 (Exhibit 11-E). 26On 16 June 2012, Mr Peter Felgate, Manager Toxicology Services, prepared a Toxicology Report on the hair sample provided (Exhibit 11-F). 27Mr Felgate's Toxicology Report indicated that a sample of hair averaging approximately 2-3 cms and said to be from the pubic region of John K Mooney was taken on 25 May and received at the Forensic Science Centre on 30 May 2012 via Australia Post with the security seal intact. The hair sample was analysed (for various listed and specified drugs) by liquid chromatography/mass spectrometry (total weight 10mgs) with the results indicating the hair segment contained: 1.Approximately 20 pg codeine per mg 2.Approximately 30 pg alprazolam per mg 3.No other drugs (see appendix) were detected in the hair. 4.None of the drugs listed in the attached appendix were detected in the external wash of the hair. 28Mr Felgate attached a "Note" to the Report detailing a comparison between the growth rates of head hair and other body hair (such as chest, pubic, beard or underarm. He indicated inter alia that while head hair grows at approximately 1cm per month, hair such as pubic hair grows at "a much more variable rate and as such it is not possible to estimate a time frame from the length of the hair". He went on to note: Pubic hair has a much shorter growing phase than head hair and a much longer dormant phase so the length of the hair tends to be much shorter than head hair for a given length of time. As pubic hair is generally not cut regularly, as is head hair, then the pubic hair would represent a much longer time frame than an equivalent length of head hair. Once a hair has reached the end of its lifetime it falls out and is replaced with a new hair, head hair lives for quite a number of years whereas whereas auxiliary hair (eg chest, pubic, beard or underarm) lives for a much shorter time before it falls out. While not being able to give an exact time frame covered by the approximately 2 to 3 cm length of pubic hair analysed it is likely that it would cover a much longer period than a similar length of head hair and would possibly cover a period of up to 6-12 months prior to sampling. The presence of prescriptions drugs codeine and alprazolam may assist in determining what timeframe the length of pubic hair represents (e.g. if alprazolam was used at a particular time that the presence of this drug in the hair analysed would indicate that that time period was covered by the hair analysis). Evidence General 29After the commencement of the hearing (and due to the absence of any specific evidence from either side by way of a floor plan etc), the Board requested that the parties provide an agreed statement/facts from an appropriate third party as to relevant factual information pertaining to the layout of the female toilet area at the Hornsby Maintenance Centre that was used for drug testing purposes on 11 October 2011. The RTBU subsequently filed a statement from Alicia Nissen, Acting Operations Standard Manager (Exhibit 9) that addressed that issue. Ms Nissen was not available at short notice to give oral evidence. 30Ms Nissen deposed that she was familiar with the Women's Toilets at the Hornsby Maintenance Centre which were used occasionally for the collection of urine samples from employees for drug testing. There were two doorways separating the Women's Toilets from the outside hallway. The first door was routinely kept closed. The second door was usually propped open with a doorstop. Both doors swing closed automatically when opened by someone. The cubicles inside the Women's Toilets also have doors which do not swing close automatically. Respondent's Evidence 31RailCorp's evidence before the Board was contained in the Investigation Report, and other Annexures (D1-21 and E to R) which included, inter alia: the various letters exchanged concerning the Allegations; relevant memos and emails; the record of Mr Mooney's interview; his written responses; Mr Mooney's Ellipse Personal History Report; the Code of Conduct; the Drug and Alcohol Policy; relevant extracts from the OH&S Act and Australian/New Zealand Standards; Testing Officer Report; Laverty Pathology Reports; statements from the following RailCorp employees - Dr Armand Casolin, Brian Healy, Ricardo Fredericks, and statements from Laverty Pathology employees Ricky Zaragoza (Commercial Client Coordinator) and Juma Battacharjee, Collector. 32RailCorp also called the following persons who gave oral evidence in addition to the statements as filed: Brian Healy................ Investigator RUI (Exhibit 1-B), Dr Armand Casolin.... Chief Health Officer (Exhibit 2-1) and Jhuma Battacharjee.....Pathology Collector (Exhibit 3). 33Mr Healy's evidence concerned his role as the RailCorp Investigator and the relevant documentation relied on in providing his Report. There was also extensive cross examination of Mr Healy. 34In cross examination Mr Healy generally detailed the material he had relied upon in finding the allegation against Mr Mooney substantiated, as referred to in his Investigation Report (including the Testing Officer's Report and the Laverty Pathology Report and the Australian New Zealand Standards). He relied on the entirety of the documentation including the information from Dr Casolin. 35He confirmed that he did not interview the Collector, Ms Battacharjee before he compiled his report in January 2012. 36He confirmed that in interviewing Mr Mooney he gave him opportunities throughout the interview to explain what happened with the test. He agreed that he considered the information he had taken and that because Mr Mooney was not able to explain any reason why his test sample might have failed, he concluded Mr Mooney was guilty of the charges and he finalised his Report. He did not agree that the onus was really on Mr Mooney to justify the results, or prove his innocence. The failed test proved to him that Mr Mooney had breached the RailCorp Code of Conduct. 37He went on to say that he understood that the urine was taken in the proper way, submitted for testing, the creatinine level was low and therefore the sample Mr Mooney provided failed the test. He agreed that the failed test caused him to start with the assumption that Mr Mooney had altered the outcome in some way, he was given the opportunity of explaining and couldn't, so he therefore concluded Mr Mooney was guilty of the allegation. 38He maintained that he considered other possibilities, and made enquiries with the RailCorp Testing Officer, Mr Fredericks, and with Laverty. He agreed that he had no direct evidence of Mr Mooney tampering with the sample but had indirect evidence, or evidence, from the Collector who put him into a cubicle and collected the sample. He agreed that he did not speak to the Collector but spoke to Mr Fredericks and Laverty. 39He agreed that he did not collect any evidence that there was a breakdown in procedures; or that Mr Mooney had liquids with him; or was acting suspiciously; or wearing bulky clothing; or that there were sounds coming from the cubicle that suggested something was going on; or was alone with the sample after the dipstick and temperature tests; or took back the sample or had the opportunity to use the tap or any source of liquid. He also did not collect any evidence that Mr Mooney was a drug user or a user of illicit drugs. He had the Collector's evidence (her Report) that Mr Mooney was alone in the cubicle with the door closed, but agreed that he had no evidence as to how long he was in the cubicle. 40He agreed that Mr Mooney had said in the disciplinary interview that the toilet door was open, but said that he did not believe him, as he did not believe a young female Collector would leave the door open when a male urinated. He did not speak to the Collector before he formed that view, but when he did speak to her it confirmed his suspicions. 41Mr Healy said that he did not interview any of the other employees present on that day. He agreed that he had no direct evidence that was uncovered in his investigation that Mr Mooney altered the sample. 42Mr Healy also agreed that he did not conduct any investigation of how the sample was transported. He noted Laverty's accreditation with the Standard AS/NZS4308 and the procedures and he accepted that. He relied on the Laboratory in relation to receipt and storage etc. 43Mr Healy said other possibilities were canvassed and eliminated (such as drinking too much water). He sought clarification concerning the two creatinine tests conducted (the dipstick and the Lab test) with Dr Casolin saying the Lab test was more accurate. He did consider the possibility that the dipstick test was accurate and whatever diluted Mr Mooney's sample was placed in the sample after that test, but did not believe that was the case. He was not aware of any other incidence of that happening and they had done thousands of tests. He had no evidence to suggest otherwise and had the evidence of the containers sealed with signatures and the procedures were followed. 44Mr Healy acknowledged that the subsequent creatinine test at Laverty's laboratory did not establish when the sample was diluted. 45He did not think it was possible that the dipstick test was correct because at that point in time whatever diluted the sample had not yet been added. 46He did not conduct any investigation of whether the testing strips were faulty, he relied on the laboratory test and because of the outcome of that test he was told that the dipstick test on Mr Mooney was inaccurate. 47Mr Healy acknowledged that the temperature test was in the right scope. He relied on the expert evidence provided by Dr Casolin and Laverty and had an open mind as to whether a warm liquid or another substance was put in the sample. He did not think it was possible that whatever was added was added after the temperature test was taken because the procedures were followed on the evidence of the Collector. He did not believe Mr Mooney could have added anything after those tests were conducted. He also agreed that Mr Mooney did not have access to warm water in the cubicle. He was aware of kits that could be used to provide a sample, but had no evidence of Mr Mooney doing that. 48Mr Healy did not agree that the fact that all of the steps and procedures were followed (and he was taken through each one of those) and that there was no evidence of any failing, was evidence that Mr Mooney did not have an opportunity to alter the sample, or that it was more than likely that what Mr Mooney provided was his own urine. 49He went on to indicate that the procedures RailCorp used were put in place as safeguards to limit the ability of interfering with a test. The procedures were not 100%, persons weren't strip searched and they were urinating in private and they could take whatever they liked inside their clothing. He was aware of kits which could be concealed on the body that you can do that with. 50He also indicated that hypothetically someone could take in warm water or a warm fluid, secreted under a shirt, under their trousers or underclothing or secreted within their body and put it in the container in their own privacy. 51Mr Healy confirmed that no-one saw Mr Mooney do anything that could alter the test. The evidence relied on was the analysis in the laboratory of the creatinine level. 52He also indicated that the allegation was put to Mr Mooney and the investigation commenced. It was quite an in-depth investigation, probably larger than any other in relation to a similar matter as this one, with evidence from experts, doctors, chemists and the various people involved in the collection, and the analysis of the urine, and that was the conclusion to which he came. 53He agreed that when Mr Mooney wasn't able to explain the outcome of the results at the lab, it was concluded that he was guilty of the allegations. 54Mr Healy confirmed that he had investigated other drug matters at RailCorp where there had been a positive test result including matters where they had admitted taking drugs. 55Mr Healy acknowledged that prior to Mr Mooney's test, they had never had a situation where the testing had come back from the lab saying it was non-human or interfered with in some way. 56Mr Healy also indicated that Mr Mooney had said in the disciplinary interview that there was nothing out of the ordinary in the test. 57Ms Battacharjee commenced employment as a Pathology Collector with Laverty Pathology on 19 September 2011. She only carries out testing for RailCorp. She works on a casual basis three or four days per week. She completed two weeks on the job training with Laverty when she commenced, with the first week working with another senior Collector, and the second week she was on her own. She could not remember how many days she was working in her second and third week. Prior to working with Laverty she had worked as a Pathology Collector at a medical centre for six months where she had taken blood and urine samples which were then sent off site for analysis. She followed different procedures when she commenced with Laverty. 58She agreed that at the time of the testing of Mr Mooney she had been working for Laverty on her own for two weeks. She said she felt pretty confident at that time. 59She acknowledged that she had no independent recollection of the test but was confident she did everything exactly according to Laverty's procedures because she was an overseas doctor and had worked in a related sector and in her country for about two or three years. She did not think it was possible that she had made a mistake within the first two weeks of following a different procedure. 60Her detailed evidence (as set out her statement of 30 April 2012) concerned Laverty's standard procedures (as attached to her statement) which she maintained she would have followed in carrying out the drug urine tests at RailCorp on 11 October 2011, including the testing of Mr Mooney. 61She deposed as to equipment used, and the procedures that would have been followed: 1.The Urine Drug Testing Kit contains 3 collection tubes, a screw lid cup with a temperature sticker, a Commercial Pathology Drug Testing Control Form (DTCF) in triplicate (white - the RailCorp Testing Officer, yellow - Laverty Toxicology, pink - the Donor), a Biohazard bag, 12 Lab numbers stickers and 4 Security Seals. 2.The Collector meets the RailCorp Testing Officer who allocates an office and toilet cubicle specifically for testing. The Collector sets up the office and toilet cubicle so they are secure and private; prepares the area by placing a sign near the toilet saying "Please don't flush the toilet"; tapes it to prevent flushing; places blue dye in the toilet and removes all other items including brushes and disinfectant. The Collector places the urine test strips for creatinine (located in a container), rubber gloves and yellow bag for contaminated items in the allocated bathroom area. 3.The RailCorp Testing Officer sends the Donor to the office where the Collector checks the Donor's ID, asks date of birth, shows the Donor the Urine Drug Testing Kit which is sealed in plastic and opened in front of the Donor. The Lab numbers are already labelled on the 3 tubes. The Donor confirms date of birth which is recorded by the Collector on each of the 3 tubes and checked by the Donor. The collector then obtains the Security Seals, places his/her initials and date on the 3 Seals and asks the Donor to initial the Security Seals. The Collector then places the Lab number on the Chain of Custody Book, the Transit Form and the Daily Activity Record and records the Donor details on the DTCF. The Donor is asked if they are taking any medication, with details recorded on the DTCF, signed and dated by the Collector. 4.The Collector and Donor then walk to the bathroom area; the Donor is asked to wash his/her hands; the Collector then removes the top of the container in front of the Donor and asks them to go into the toilet cubicle and provide a sample of urine by half filling the container; the Donor is reminded not to flush the toilet; asked to remove any bulky clothing such as jackets or jumpers and empty their pockets. The Collector does not touch or "pat down" the Donor. 5.The Donor enters the toilet cubicle, closes the door for privacy with the Collector standing outside the door and listening for any unusual sounds whilst the donor is in the toilet cubicle. After providing a sample and exiting the toilet cubicle the Donor hands the container to the Collector who then reads the temperature on the temperature strip on the container in front of the Donor, informs the Donor of the collection temperature which should be between 34 to 38°C to meet the standards as per the Australian Standard AS/NZS 4308 for drug testing. 6.The Collector then places the lid of the container in front of the Donor and draws urine into the 3 sealed vacuum tubes; opens the container and tests the creatinine level in front of the Donor with the creatinine test strip and informs donor of the result. If the creatinine test result is in the abnormal range another test is usually undertaken later that day. 7.The Collector and Donor then go back to the office with the 3 tubes and container where the temperature of the specimen, the number of tubes and the creatinine level is recorded on the DTCF. In front of the Donor the Collector checks that the Lab numbers on the Security Seals are the same as the Lab numbers on the DTCF and in the presence of the Donor , seals the tubes with the Security Seals (which are "tamperproof"), places the 3 sealed tubes in the Biohazard bag which is sealed with the same Lab number. The Donor is then asked to check and confirm as correct the details on the DTC, fill out the consent area, providing their details and signing consent. The copy of the DTC is placed in the document compartment of the Biohazard bag and sealed with a Lab number, the pink copy is handed to the Donor and the white copy to the RailCorp Testing Officer. 8.The Collector then fills out the Chain of Custody Record Book (date, client name, location, Lab number, Security Seal number (UID number) with the donor asked to check details are correct. The Collector then fills out the Urine Sample Collection Checklist Form, signs that with the Donor checking and signing it as being correct. 9.The Collector then hands the blue copy of the Urine Sample Collection Checklist and the pink copy of the DTC to the donor requesting they go back to the RailCorp Testing Officer and show their UID number on the DTCF. Then in the presence of the Donor the Collector places the sealed Biohazard bag into the green satchel bag. The Donor leaves the area to see that RailCorp Testing Officer. 10.At the completion of the collections at the particular site the DTCF and the Urine Sample Collection Checklist are handed to the RailCorp Testing Officer. The Collector seals the green satchel bag with a blue security seal with the Donor's samples and documentation and they are taken to the Laverty Laboratory and signed over to Toxicology for analysis. 11.If the urine drug testing kit is faulty in any way including Lab numbers, faulty tubes and faulty container, the kit is put aside, secured in the yellow contaminated bag and a new kit is then used. The faulty kit is secured, account for and return to Laverty. 62Ms Battacharjee stated that she had no independent recollection of taking a urine sample from Mr Mooney on 11 October 2011. She believed that she did so it by reference to the documentation attached to her statement (his Drug Testing Control Form) and by referring to that form she could state that she attended the Hornsby Train Crewing Office on that day and at 9 am collected a urine sample from him. During the collection process she identified Mr Mooney as the donor, entered RailCorp as the client, identified the test as a "random" test, entered the temperature as 34 degree Celsius and marked the creatinine result as normal. She entered the medication Mr Mooney told her he was taking which included Nexium Cold and Flu tablets, Nurofen Plus and Xannax, signed and dated the form and saw Mr Mooney complete and sign the consent area of the form. 63Ms Battarcharjee stated that by reference to Mr Mooney's Urine Sample Checklist (attached to her statement) she completed all the procedures required by Laverty Pathology and RailCorp. The temperature fell within the acceptable temperature range, the creatinine level was checked with the urine test strips and the hydration found to be normal. Both she and Mr Mooney signed the form as being correct. The other records for Mr Mooney that she referred to as being completed during testing procedures were also attached to her statement. 64Ms Battacharjee stated that she did not recall making a telephone call during the collection of Mr Mooney's sample and did not believe this to be true. Laverty's Procedures (attached to her statement) did not permit Collectors to make telephone calls during collections. She also denied leaving the toilet cubicle door open while Mr Mooney produced his urine sample. She never left the door open and the door was always closed when a Donor produced a urine sample. 65Ms Battarcharjee was taken through the procedures she followed in some detail in cross examination and asked to confirm various stages and asked the reason for certain steps, to which she initially would sometimes say that it was the procedure but on further questioning could explain the reason why (e.g the blue dye in the toilet bowl, removing bulky clothing etc). She did not know why it mattered that the urine sample had to be 34 degrees Celsius, but was aware the normal range was 34 to 38. She knew the creatinine level was tested to see how much water was in the urine and knew if a person drank a lot of water within a short period of time "it doesn't good result". She did not know if adding water to the sample could alter the creatinine levels. 66Ms Battachajee initially did not think a visual check was done but on further questioning from the Board it was clear that she would look to see whether there was anything unusual, such as the colour (any red or blue etc). She didn't notice anything unusual with Mr Mooney's sample as she would have written a comment. She also agreed that she did not write any comment about him acting suspiciously, appearing to be under the influence or having access to water etc. 67Ms Battarcharjee denied that Mr Mooney left the toilet area before she did and that she was alone with his sample. She said that she always left the room with the Donor and could be sure of this because it was Laverty's procedures. She was taken to that section of Mr Mooney's statement concerning his evidence that he left first and she was alone in the toilet area with his sample for a period of time while he was in the corridor. She believed that was not true because of their procedures. 68Ms Battacharjee denied spilling Mr Mooney's sample and could not remember whether there was "any mess" on the outside of the container when he handed it to her. She didn't add anything to the sample and didn't pour water from the basin and add it to the sample. She denied being nervous that day and hiding a mistake because she did not want to lose her job with Laverty. She always followed procedures. She agreed that if she did spill some of the sample and added something to it that Laverty would not be happy about that, but said she didn't do that. 69Ms Battacharjee did not recall using her mobile that day and did not believe it was true because during the procedures they don't receive phone calls. She had a mobile phone provided by Laverty and her own personal mobile. They were both with her in the pockets of her uniform (shirt and pants) when she was doing testing. She did not turn phones off before she went in to test someone. She could use the mobile but after the procedure, not during and not in the middle of the procedure. She did not use the phone when she went back into the other room with the Donor to fill out the paperwork. She could only use the phone when the Donor left but not in front of the Donor. 70In re-examination Ms Battacharjee was taken through the procedures followed with the sample and the drawing of the sample into the three vials and vacuum sealing them (but not security sealing them) and maintained that this was done in front of the Donor in the toilet area before they walked out into another room. She would have the vials in her hand when they left the toilet area and they would be security sealed in the other room. 71The Board asked a number of questions of clarification of Ms Battacharjee and the following exchange took place: Q. Can I ask, if you're still in the toilet and you've got three vials in your hand, you've got the container in your hand, have you got anything, how can you -- you haven't got a free hand to take -- to draw the liquid out of the container and put it into the three vials or do you put it down on - somewhere in the toilets, put it on the basin or something? A. Yeah. Q. You've got the three, do you understand what I'm saying? A. Yeah-- Q. You're in the toilet are (sic), you've got the container in one hand, you've got the three vials in the other hand? A. Yes. Q. And you've got to draw the liquid out of the container and put them in the voiles (sic). How can you do that if you haven't got a third hand to -- how do you do it? A. Just I - draw the - divide the sample in three and I use the small box and put -- Q. You've got a box? A. Yeah. Q. And the samples are in a -- A. And three and in the box. Q. In a box? A. Yeah. I have one in the box and -- Q. Right and so you're carrying -- and it's one of those boxes I take it that's got, I've seen boxes a bit like the egg container that you have in your fridge where you've got a hole and the tube sits, the collection tube sits in the hole and you've got the vacuum thing that pulls the liquid out sitting in that box as well, have you? A. No, it was just a simple box. Q. Box. Yes? A. Yeah. Q. Just an ordinary? A. Yeah I just collect three tubes and to put the three tube (sic) in the box, small box. Q. Then so when you are drawing the liquid out, do you put the container in the box so that you have a free hand to do that because you can't be holding the container in one hand and the box in the other. Where do you put the box? A. I - just I put the container in the - in front of basin side. Q. Right. A. Yeah, in sink. Q. In the sink? A. Yeah. And collect the three tubes and the three tube in small box and I hold the box. Q. Right. A. And another container I throw out in the yellow bin the rest of the container. 72She also said that if a sample got spilt (by bumping or the Donor spilling it etc.), they would use another new kit and get another specimen. 73Ms Battacharjee said that after the testing all the specimens go in the green bag which she seals and she then drives back to the Laboratory and hands the green bag to the toxicology department. That was the end of her involvement with the specimens. 74Dr Casolin confirmed that throughout the disciplinary process he was consulted by Mr Healy with email correspondence exchanged. 75In response to Mr Felgate's Toxicology Report, Dr Casolin stated that it could not be viewed as conclusive proof that Mr Mooney did not take illicit drugs or have them in his system on 11 October 2011. Marijuana and its metabolites are incorporated into hair at very low levels. Drug analysis of hair was thus not a sensitive method of detecting occasional marijuana use. It was possible that Mr Mooney used marijuana at some point prior to 11 October 2011 and this was not detected in the toxicology results of June 2012. It was also possible that he was using some other form of drug not detected by those toxicology results (with examples of such given). 76Dr Casolin also said that there was no guarantee that the hair wasn't removed at sometime between the test in October and the collection of the hair sample. 77Dr Casolin also stated that the variable rate of hair growth meant that it was not possible to accurately reference drug use at a point in time. It was possible Mr Mooney cut his hair after 11 October 2011 and if so the hair sample he provided seven months later would not detect any drugs in his system in October 2011. The presence of codeine and alprazolam was not necessarily indicative of time as he may have taken those substances at any time before and/or subsequent to October 2011 merely consistent with those two medications being used at some time. 78Dr Casolin explained in oral evidence some of the terms referred to in the Toxicology Report, and the testing criteria (temperature and creatinine levels etc.). 79Dr Casolin confirmed there was initially an error in reading the temperature on the form as completed by Ms Battacharjee as being 39 rather than 34 and rather than warm water being added, what was left was just ordinary water within the range accepted for specimen testing of from 33 degrees up to 38 degrees. 80In response to the Board's query about cold water coming out of a tap being colder than that range Dr Casolin responded: A. It would be colder than that, so it needs to be warmed in some way and there are ways of doing that. Water can be warmed up either by using warm water out of the tap or by heating up in a microwave or by using, there's warming packs which people can buy over the internet to warm up samples that they have on their person for the specific purpose of substituting a sample and -- 81He went on to say: .....it's possible to buy urine and it's possible to buy synthetic urine over the internet and they often come with warming packs so that the person can warm up the sample in the collecting room and then put it into the collecting container. That's one method. And if you're adding water of course, an easy method is just to warm water out of the tap and also if the water is being carried on your person, close to your body for a period of time it would warm up close to body temperature, it could come up to 33, 34 degrees. 82In cross examination, on the issue of the detection of marijuana, Dr Casolin indicated that due to variables (such as usage, timing etc.) it would be possible for Mr Mooney to have used marijuana at some point prior to 11 October and it would not show up either in a hair sample or a urine test. He agreed that it also followed that if Mr Mooney had provided an undiluted sample on 11 October it would not be conclusive evidence that he had not used marijuana. 83Dr Casolin agreed that the other illicit substances that he had referred to in his statement as not being tested for by Forensic Services were also not tested for by Laverty. 84He generally agreed with the observations made by Mr Felgate concerning pubic hair as compared to head hair (apart from any assumptions based on when it was cut and that it would then grow back again). If it had not been cut then pubic hair could cover a period of six to twelve months. 85Dr Casolin confirmed that in his email exchange with Mr Healy he had concluded that the dipstick test must not have been accurate because there was a subsequent lab test that returned a different result. 86He went on to confirm that the most likely thing that had happened was that water had been added to Mr Mooney's sample after he had expelled it. The result could not have been achieved by drinking copious amounts of water. 87Dr Casolin agreed that it was possible that the dipstick creatinine test was accurate and that the substance was added some time after that test and that would account for a different reading at the Lab. 88Dr Casolin also agreed that another explanation for Mr Mooney's sample being within the normal temperature range result was that when the sample was tested it was Mr Mooney's urine and if something was added after the temperature test, whether it be warm or otherwise, it could explain why there was a temperature test that was within the normal range, but also a failed sample. 89Dr Casolin went on to indicate that the onsite dipstick test was particularly unreliable and every week he saw samples that had been diluted or not just diluted, just below the cut off of 1.76 millimoles per litre so someone who had drunk a litre of water for example on the dipstick test was apparently normal. It just relied on the Collector looking at the colour change on a small stick and it was extremely subjective. Appellant's Evidence 90Mr Mooney gave oral evidence before the Board in addition to his written statement (Exhibit 11) which also attached reports from Laverty Pathology (28/10/11), Douglas Hanly Moir Pathology (30/03/12), a letter from Dr Saha (18/06/12) and a Toxicology Report from Peter Felgate, Forensic Science SA (16/06/12). 91Mr Felgate, Manager Toxicology, Forensic Services, Attorney General's Department of South Australia gave oral evidence to the Board via teleconference hook-up. 92Mr Felgate generally indicated the range of services, including private analysis, that his department provided. They were a NATA accredited laboratory. 93Mr Felgate generally agreed with Dr Casolin's evidence concerning the detection of marijuana saying that drugs in hair (as well as blood and urine) would be detected if a person was a frequent user but not if they were an occasional user. 94He generally explained the Report he had provided and also added detail to the differences in growth rates between pubic hair and head hair. Head hair has a fairly long growth stage and fairly short dormant stage, whereas with other body hair (such as pubic hair) the growth phase tends to be short and the dormant phase quite long and because it generally doesn't get cut it will reach a certain length and when it is past its lifetime such hair actually falls out. 95Mr Felgate confirmed that if there was evidence that alprazolam was only used in a certain period, and because they detected it in the hair sample then obviously the hair would include that period of time. If it was taken on a number of occasions in the last 12 months then he could not say that this alprazolam went back 12 months if it was only taken a month ago. 96Mr Felgate confirmed that they required (and would not accept otherwise) that the hair was actually taken by a third party, either a registered collection agency or medical practitioner so a third party could verify they had taken it. Forensic Services provided a collection kit for that purpose (describing the contents of that kit). The hair was required to be cut as close to the skin as possible. It was taken on face value as being human hair and pubic hair. However if head hair had been used alprazolam used in September 2011 would not still show up in June 2012. 97They had received 10 grams of hair which represented 15 to 20 hairs and they were all tested. He had also received a letter from the doctor explaining it was pubic hair. He had no reason to believe that the procedures as provided for with the kit weren't followed apart from not taking as much hair as they usually recommended. 98He confirmed that he could not say at what point in time the drugs referred to in the Report were taken. 99The following RailCorp employees also gave oral evidence in addition to Statutory Declarations/statements they had filed (as attached to Mr Mooney's witness statement): Rodney Moore..........Driver Trainer (Exhibit 5), Philip Tio .................Train Driver (Exhibit 6), Gregory McKenzie... Principal Driver (Exhibit 7), Leslie Bryant.............Crew Support Officer (Exhibit 8), Mark Willis................Acting Operations Standards Manager (Exhibit 10). 100Mr Moore, Mr Tio, Mr McKenzie, Mr Bryant and Mr Willis all stated that they had been at the Hornsby Crewing Centre on 11 October (with varying start times and duties indicated) and had each both seen and spoken to Mr Mooney in the meal room before he was tested (for varying periods and at differing times and for differing durations). They each essentially stated that Mr Mooney appeared/acted as his normal self/usual self/normally, with Mr Tio, Mr Moore, Mr McKenzie and Mr Willis also generally stating variously that he did not display any suspicious/strange/agitated behaviour. They all indicated in oral evidence that they had not known Mr Mooney to be a drug user or had been given any reason to believe he was a drug user. 101Mr Moore had known Mr Mooney for approximately three years. Mr Moore commenced at 3am, detailed the duties he carried out that morning and said that he saw Mr Mooney at around 6.15am when he went to the meal room and bathroom and ran into Mr Mooney. During that time he spoke to him for about two and a half minutes. He then was then out of the sheds at 6.47am heading to Hornsby. He did not notice the Drug Testing Officers that morning. 102Mr Tio had worked with Mr Mooney for around two years. He commenced work that day at 8am and when he saw Mr Mooney he seemed the same as any other time he'd run into him. He saw him several times during the day for minutes at a time, including in the meal room. He acknowledged that he could not actually remember that day. He believed he was also tested that day but could not recall the testing, had not kept a record of it and did not really take much notice of the testing. He was not sure how often he'd been tested since then as it was pretty random. 103Mr McKenzie had known Mr Mooney for about three and a half years. On 11 October he was rostered at 0600 to conduct assessments and recalled talking with Mr Mooney in the meal room for around half an hour from about 6.10 to 6.40 am. He also saw him later around 8.30 after completing certain tasks. He could not recall whether Mr Mooney had a cold, or signs of a cold that day. He didn't actually see him drinking water. 104Mr McKenzie had been tested a number of times over the years and recalled an occasion at Belmore where he was selected for a random drug test while he was doing a course and on that occasion the door was left open with the person standing behind him watching. On another occasion the test was conducted in the actual Drug Testing van out in the carpark at Hornsby and when he went into the small latrine he asked whether the door had to be closed or open and was told it didn't matter, so he closed the door behind himself for privacy. 105Mr Bryant had also known Mr Mooney for around three and a half years. He commenced work at 0600. He had several conversations with Mr Mooney that day including one at around 7am. Mr Mooney was President of the Social Club and he was Treasurer and they discussed the planned Christmas social event. As Crew Support officer it was his job to select the names of staff required to do the drug testing for the day. He outlined what was involved with his duties in that regard. His office was the sign-on area and he could see also see the meal room from there. 106At just before 8.55 am he informed Mr Mooney (who was in the meal room at the time) that he was required to do the test. Mr Mooney then went to the first aid room. He did not accompany him as it was not his job to do that. 107He agreed that the RailCorp Testing Officer arrived at 7am, could not recall the name but knew him by sight. Mr Mooney was not there when they arrived, he was in the Depot but not in Mr McKenzie's office. 108Mr McKenzie had also provided a character reference for Mr Mooney which was his personal view and for Mr Mooney's use at any time during his lifetime. He knew his family and his wife and his kids. 109Mr Willis also stated that he was tested on the same day and described briefly the procedure he followed with the drug tester. He stated that he watched the drug tester perform various tests on the sample then he completed further paperwork. He recalled that while he was completing that paperwork he saw the drug tester on her mobile phone. He clarified that when he saw her on the mobile phone it was in the first aid room. 110He went on to explain that the first aid room was two separate rooms with a door and that "you couldn't see into -". 111In cross examination Mr Willis said was not sure when he was tested but remembered waiting around a little bit. He stated that Mr Mooney appeared to have a cold and said he was "just a bit stuffy in the face and nose, blowing nose'. he could not recall seeing him drink water that morning. 112He agreed that after completing paperwork in the first aid room he proceeded to another room with a female testing officer who took him to the female toilets. He could not remember if the toilet cubicle door was closed and didn't remember if he closed it. He remembered her putting the sample into glass tubes but didn't remember if it was two or three. 113The following exchange then took place: Q. So you remember the process of separation I guess is the question? A. Yes. Q. And that took place in the toilet area, didn't it? A. I'm not sure. I remember the couple of tests she did in the toilet area while I was washing my hands, but I'm not sure about that. Q. Do you remember then going back to the room where you met with this female testing officer, you went together, didn't you? A. Yes. Q. And when you were in that room there was more paper work to be filled out and each of the vials were tamper sealed? A. That's correct, yeah. Q. Do you remember that? A. Yes. 114He later clarified that this was the second room where the paper work and the sealing was done and where she used the mobile phone. 115He also said that he thought using the phone might have been out of the ordinary, thought he had mentioned it to people after it happened, thought she might have been having problems and actually asked her when she hung up "Is everything OK". 116Mr Willis said that he had been tested a number of times on a random basis (about four or five) at Hornsby and other places. The general process was the same: you fill out the paperwork, then you see the next person, they take you into the toilet and you give a sample and then its sealed into a tamper proof bag. He agreed that part of the process was that he observed all of those things and at the end signed a document to certify he'd observed it and was happy with the way his sample was provided. 117He confirmed that he saw Mr Mooney before he was called to give his sample, waited with him, saw him in both the meal room and the first aid room and in the hall way. 118Mr Mooney stated that although he had been employed as a Train Driver, at the time of his dismissal he was acting in the higher position of Operations Standards Manager. 119Mr Mooney denied that he altered any drug test in any way and stated that he had always denied this. The urine sample that he provided to RailCorp that lead to his dismissal was his own urine and nothing else. He did not dilute the sample in any way or add any other substance to the sample. 120He stated that he did not have any reason to try to alter the outcome of any drug test because he did not use any illicit drugs or any drugs other than medication that was properly disclosed to RailCorp. He could not possibly have had any drugs in his system that would have caused him to fail the drug test. 121He stated that he had explained the circumstances of the 11 October drug test in correspondence provided to RailCorp dated 24 November 2011. He confirmed that the contents of that correspondence were true and correct. 122He stated that on Tuesday 11 October 2011 he signed on at approximately 0500 hours to perform a shift as a shed driver. Employees working these shifts are required to perform train movements within the depot as required. An employee on a shed driver shift will usually wait in the meal room to be given directions. On the day in question he was in the company of other employees the entire time. At around 0800 hours he became aware he was going to be required to undergo a random drug test as he had speaking to Les Bryant, Crew Support Officer, inside his office directly opposite the meal room. After speaking to Mr Bryant he returned to the meal room and was there in the company of other employees until it was his turn to be tested. 123At approximately 0900 hours he was informed it was his turn to undergo the random drug test and he walked out of the meal room, down the corridor to the first aid room being used by the testers and on the same floor as the meal room. He was in full view of other employees as he walked from the meal room to the first aid room. In the testing room he was met by a gentleman who took his details and directed him to go into the next room (a partitioned off section of the first aid room) where he was met by the Collector. 124He was asked about medication he had been taking and his response was as set out in his letter of 24 November. He and the Collector then walked together from the first aid room, out into the corridor, and across the corridor to the female toilets. Once inside the Collector gave him an open container without the lid to urinate into. He went inside the cubicle and left the door part open. He knew that he left the door open because it was his understanding that this was required as part of the procedure for drug testing. He recalled that on one other occasion he was tested he tried to close the cubicle door but was told that it must be left open. Since that time, he had always left the cubicle door open when being tested. With the door part open, he urinated in the container as requested and while doing so he was aware that the collector was standing behind him. 125He went on to state that after urinating in the container and doing up his pants, he turned around and handed the open container to the collector and this was the last time that he touched the container or had any possession of the sample. He then proceeded to wash his hands in the wash basin that was outside the cubicle. He then observed the Collector place a dipstick inside the open container of urine, everything appeared to be okay and was confirmed verbally as "okay" and no issue was raised with him. 126Mr Mooney stated that he and the Collector then left the female toilets and walked back across the corridor to the first aid room. He left the female toilets first and the Collector left after him and there was a period of time during this procedure where he was outside in the corridor and she was still in the female toilets with the door closed, and during that time she was alone with his sample. At no point in time was he alone with his sample. They then went back across the corridor to the first aid room where the Collector poured what appeared to be his sample from the container into vials which were sealed and written on. While in this room the Collector tried to make a number of phone calls, saying that she needed a number of some kind. He then left the room and that was the last time that he saw he sample. He then resumed normal duties. 127Mr Mooney stated that on that day he did not have any substance in his possession or on his person with which to alter a urine sample. From the time of the drug testers arriving, to the time of him providing his sample, he was in the company of other RailCorp employees. He had no knowledge that the drug testers would be there that day and had no opportunity to retrieve any substance or 'non-human' urine from any place after their arrival even if he had wanted to. He did not have access to his locker or any other personal belongings before he provided the sample as the lockers were upstairs on another level from the meal room and the rooms where the test took place. When he provided the sample he was not wearing bulky clothing of any kind and had nowhere he could have hidden any substance. At no point was he alone with his sample, and at no point did he have any opportunity to add anything to the sample even if he had wanted to. He did everything that was asked of him that morning in relation to carrying out the drug test and at no point did anybody raise any concerns with him about his behaviour that day. 128He also stated that he had no reason to try to alter the sample, had nothing to hide, did not have any drugs in his system that would have caused him to fail the drug test that day, or any other day that he have reported for work at RailCorp. He had undergone a number of random drug tests during his employment with RailCorp and had never failed, refused or avoided any test. He was aware that it was recommended that he be re-tested after the test of 11 October and was tested again on 26 October 2011 at Chatswood. He did not know why it took RailCorp that amount of time to test him again but as soon as he was asked he submitted to another test without hesitation. He passed the test as he had always done. He was also tested again on 13 February 2012 by RailCorp's health provider and passed without problems. 129Mr Mooney stated that after being informed of the problem with his test he wanted to do everything he could to have the test done again because he knew a mistake must have been made. He was informed that he could get part of the sample that had been collected by RailCorp that day re-tested by another laboratory. He elected to have the sample tested again because he had nothing to hide and wanted to see if this would demonstrate what mistake had been made. His 'B' sample, was tested by Douglas Hanly Moir Pathology and returned a different creatinine level to the test conducted by Laverty Pathology. 130He stated that since being dismissed he had tried to do everything he could to show he had nothing to hide and had no reason to try to alter his urine sample because he had not taken any illicit drugs. He discovered that a body called Forensic Science SA, a part of the South Australian Government's Attorney-General's Department, was able to test people's hair to see if they have taken certain drugs. At his own expense, he arranged to undergo this test. He then described the procedure undertaken (see Background and Chronology above). 131He also asked employees who were present with him on 11 October 2011 to provide statements about his behaviour that day and provided them to the RTBU for use in this appeal. 132Mr Mooney stated that he had been honest and forthright with RailCorp throughout and believed the system would demonstrate that he did nothing wrong. He attended a recorded interview with RailCorp, against the advice of the RTBU because he had faith in the system and wanted to set the record straight and was shocked when he was informed that the allegation had been upheld by RailCorp and that he was to be dismissed. 133Mr Mooney stated that his dismissal from RailCorp had an enormous financial and emotional effect on himself and his family. Since being dismissed his wife had given birth to their third child and they now had three young children. He had been unable to gain steady work since his dismissal and had been inflicted with health problems. He stated that he would never do anything to jeopardise his career at RailCorp. He needed this job to support his family and would never be so stupid as to take drugs or to tamper with a drug sample, he took his job far too seriously to do anything like that. 134Mr Mooney believed that his history at RailCorp showed that he was an honest and hard working employee and he did not believe RailCorp could find anybody who knew him who would think that he was a drug user. If reinstated to RailCorp, he would do his job diligently, professionally and safely, as he had always have done and would honestly submit to any test required, as he had always done. 135There was extensive cross examination of Mr Mooney. 136He acknowledged that he had been briefed on the Code; was aware of the Policy; the disciplinary penalty of dismissal that could be imposed for breaches; that it was a serious breach to dilute, alter, tamper or interfere with/attempt to do so, with a urine sample; had completed appropriate safety training and had been tested a number of times over his years with RailCorp (about 10). 137Mr Mooney re-iterated what he had done on the morning on 11 October which included shunting a train, being in the meal room, walking up and down the corridor, outside talking to the smokers. He did not think he had food that morning and had lots of water. He saw the Testers at around 7am because he was in the shed in front of the television. To the right of the TV were glass double doors, the entrance and exit to the main building and where the first aid room is and you could see them, He didn't think he went to the toilet once he was told at 8am that he was going to have a drug test. 138He agreed that between 7am when he saw the drug testers and 8.45 when he first met with testing Officer Ricardo he had ample opportunity to get himself organised for the purpose of tampering with the test. He said there were times when he would be waiting for the shunters to ring him to move a train and that he would just be sitting down killing time. He maintained that he took no such steps to get himself organise himself for the purpose of tampering with the test. 139He acknowledged he did not raise the issue of the open cubicle door in his first written response and that this issue was raised by Mr Healy in the interview and that whilst to a certain extent his memory could be unclear he had a routine whenever he did a test. 140He went on to describe that in part indicating that the sink where he washed his hands was in the corner to the left. The door was open, it wasn't locked, and he remembered her standing over his right hand shoulder that was how he knew the door was open. He also explained that "in those particular cubicles and some other ones, you have to stand in beside the cistern to close the door fully and then come and stand and do your business". 141Mr Mooney also acknowledged, in response to questions from the Board, that he was a well built man and solid. 142He had never had anyone tell him to close the door and thought it was just part of the procedures. 143He denied the door was closed and that he only raised it in hindsight because it was raised by Mr Healy and because he thought it might help his case. He similarly denied raising the issue of how much water he'd drunk and what medication he had had taken for that same reason. 144Mr Mooney acknowledged that he had signed the documentation, watched the drug tester sign the documentation but did not raise with her that she had ticked that section referring to the collector waiting outside the closed cubicle door while the specimen was being produced. he'd done it so many times you just sort of scanned it and signed it because you wanted to get out of there. There were also other things he signed (the labels and a book). She had already ticked the boxes when she handed the form to him. Some put it in front of you and went through it some didn't. 145In relation to his evidence concerning the female tester using her mobile phone to get a number, he acknowledged that there were already various numbers filled in on the form (and was taken through each of those), didn't know what the numbers were for, and that there was no number missing. He had never seen a pathology report before. 146He also acknowledged that he told Mr Healy at the interview that the testing was nothing out of the blue but maintained that she attempted to make several calls while they were in the first aid room (but not in the toilet area) and he was siting down. He did not know what the number was or what relevance it was and when he questioned her she said "to get a number" and when he asked her if it was important and she said "no not really". She never got through, but made two or three attempts and it obviously rang off but she never spoke to anyone. 147Mr Mooney also explained that the first he knew there was a problem was the week after he was tested. He was approached by the OSM and told there was a "bit of drama" with his test, they wanted him to do another, which he agreed to do and that took place on 26 October. Around that time he had been made an Acting OSM and they were having their first meeting and he was called into the Depot Manager's office, told something irregular had been found in his sample and had to give his keys etc., back and was told he was on light duties from then on. 148He then started making phone calls and indicated that various contacts (both phone and email) he made (colleagues gave him names) including Tony Hinchon, Ben Nimuwari, (another senior manager) and HR. He spoke to several people to try to find out what was happening, what had gone wrong and the minute he was told there was something wrong, something in his sample, he said it must be a mistake and realised - "this is getting quite serious" . He subsequently spoke to Sally Hindmarsh and several other people from HR, Neil Parsons (who told him he would look into it and got back to him the next day) explained it was being investigated and given to Brian Healy. Mr Mooney then got the allegation letter, didn't know what 'voiding' meant and had to dig deeper and all he had was a letter that said he had swapped samples with something non-human, maybe a cat or dog or something, while he was in the cubicle. When he spoke to Mr Healy he absolutely said he would come in for an interview as he wanted to clear everything up. 149Mr Mooney agreed that none of the issues he had raised, the drinking of the water and the medication he was on, had any affect on the outcome of his test. he had subsequently spoken to two doctors who said that the amount of water drunk would not affect the creatinine levels and that was why it was considered non-human. He also questioned the medication and was told no. 150Mr Mooney acknowledged that the first time he had mentioned the Collector being in the toilet on her own with his sample was in his filed written statement yet he had told Mr Healy in the interview that procedures were "generally what happened". He agreed that at that point he didn't raise any difference with his test. At that point he didn't conceive that Ms Battacharjee had tampered with his test, "not at all". 151The following exchange then took place: Q. Do you believe that she did? A. To be completely honest, I have thought about this eight and - I'll keep it quick - I've thought about this for 8 and a half. I'm tired, I've had enough, and I have - it has wrecked my head to try and figure out how, why - how this came about. The only explanation I can come up with - or the only valid - the only way it could have happened is if the lady officer, in fact did tamper with my sample. Q. If that is the case, are you saying to us that she did so in a 30 second - less than one minute period - when she was in that toilet? You say she was in the toilet on her own? A. That would be the only time she would have been alone with my sample, that's correct because previous to that I was in there with her. Q. So are you saying she had a opportunity to do so in that short space of time? A. Absolutely, the sink was right beside her. Q. You've heard the evidence she gave -- A. Yeah, I did Q. -- about drawing the sample of the urine into three vials? A. Yes. Q. I put it to you, Mr Mooney, there was no opportunity for her to tamper with your sample in the bathroom and certainly no opportunity to do so in a 30 second period. A. Well, I disagree with you. 152Mr Mooney agreed that the subsequent test of his B sample by Hanly Douglas Moir had a slightly lower creatinine lever, was not aware Laverty routinely "rounded up" and that the sample still recorded a result that indicated the "specimen characteristics are not consistent with human urine. 153In response to a number of questions from the Board about the nature of the container he voided into and whether he could recall if he filled the container up he responded as follows: A. I do, I do, yeah, I do. I fill it up - I fill it three quarters to full. 154Mr Mooney reiterated in cross examination concerning the method of drawing the urine, that he saw her draw the urine into three vials but she didn't do that in the bathroom. 155In further questioning of clarification from the Board Mr Mooney confirmed that she did that in the first aid room in the back. She took the container it with her into the first aid room - "absolutely". 156He also confirmed that she put the sample into the vials (did not know exactly how she did it) while he was doing the paperwork and remembered that she did that because she was sitting opposite him. He acknowledged that he had heard her evidence on this issue. Mr Mooney said that when he compiled his response letter he didn't even think of the issue of the order in which he and the Collector and the collector left alone with his sample for a period of time. When he attended the interview with Mr Healy ,he was not aware it would be an issue. Submissions on behalf of the Respondent 157Ms Baxter made oral submissions in addition to the written submissions as filed (Exhibits 1 and 2) and in doing so the Board was referred to relevant evidence in support of those submissions. 158RailCorp's written submissions set out the relevant sections of the Code that were breached by Mr Mooney as follows: 2. Acceptable behaviour and responsibilities RailCorp employees, contractors and consultants are to comply at all times with the behaviours outlined in the 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 interest 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, contractor or consultant of RailCorp you are responsible for the way you behave and your actions. All your decisions must be ethical and comply with legislation, enterprise/collective agreements, awards, policies, procedures, rules and job requirements. In your job at RailCorp you must: Carry out your duties carefully, safely, honestly, courteously and fairly..." 4. Alcohol, drug and smoke free workplace We maintain an alcohol and drug free workplace; ........ and inter alia, ........ As part of RailCorp's commitment to safety we also require all employees, contractors and consultants to be alcohol and drug free while on duty... RailCorp is a drug and alcohol free workplace. All employees, contractors and consultants may be subject to random or targeted testing for drugs and alcohol. Any RailCorp employee, contractor or consultant will breach the requirement of a drug and alcohol free workplace if they return: a drug level that is at or above the cut off level stipulated by the Australian Standards AS/NZS 4308 .................. Employees who breach these standards or who refuse a drug or alcohol test will be subject to counselling and/or disciplinary action. Serious or ongoing breaches may result in dismissal... It is an individual's responsibility to ensure that they are drug and alcohol free at work. 159RailCorp pointed out that Mr Mooney had attended RailCorp Code of Conduct briefings on 2 July 2007 and 30 December 2010. He therefore knew, or ought to have known of his responsibilities under the Code at the time of his urine drug test. 160It was also submitted that Mr Mooney had breached the provisions of the RailCorp Drug and Alcohol Policy which states: RailCorp is a drug and alcohol free workplace. Every employee and contractor is responsible to be drug and alcohol free while at work. Being drug and alcohol free is defined as: For alcohol ... For drugs, a test reading less than the cut off levels stipulated in the Australian/New Zealand Standard 4308 (AS/NZS 4308). 161The Policy was supported by the Safety Management System, System Requirement Drug and Alcohol Management (SMS System Requirement) which states inter alia that: 6.2 Refusing, failing or tampering with an alcohol or drug test An authorised testing officer with reasonable cause may require at any time, in any RailCorp workplace, an employee or contractor to: Undergo a breath test and/or breath analysis for alcohol Supply a urine sample for testing for drugs consistent with AS/NZS 4308, which is used for the detection of the presence of drugs. It is a serious breach of the RailCorp Code of Conduct and this system requirement if any employee or contractor: ...... Dilutes, destroys, interferes, tampers or substitutes a sample or attempt to do so or assist others to do so and/or... All such occurrences will be investigated and may result in disciplinary action and/or prosecution under the Rail Safety Act 2008. 162It was submitted that in addition to the Code Mr Mooney knew, or ought to have known, of his requirement to adhere to the Policy and the SMS System and the importance of being drug free while at work. 163It was also submitted that Mr Mooney had a duty of care to prevent risks to all employees and to persons entering its property or using its services Further, his behaviour may have breached s.20 of the Occupational Health and Safety Act 2000 which states as follows: 20 Duties of employees (1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. (2)... Maximum penalty: (a) in the case of a previous offender-45 penalty units, or (b) in any other case-30 penalty units. 164It was submitted that RailCorp also had duties under s.8 of the OH&S Act which states: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 165It was submitted that, in the circumstances, the dismissal of Mr Mooney was a reasonable step for RailCorp to take in order to satisfy its obligations under s.8 of the OH&S Act and most particularly s.8(1)(a) and (b), and 8(2). 166In addition RailCorp was within its rights to dismiss Mr Mooney in order to meet the objectives of safety, reliability and efficiency as set out in s.5 of the Transport Administration Act 1988 as follows: 5 Objectives of RailCorp (1) The principal objectives of RailCorp are: (a) to deliver safe and reliable railway passenger services in New South Wales in an efficient, effective and financially responsible manner, and (b) to ensure that the part of the NSW rail network vested in or owned by RailCorp enables safe and reliable railway passenger and freight services to be provided in an efficient, effective and financially responsible manner. 167RailCorp submitted that it was a serious breach of the Code to dilute, destroy, interfere, tamper or substitute a sample or attempt to do so. In this appeal the pathology evidence was clear - Mr Mooney provided a urine sample that was either not of human origin or was diluted after voiding. 168It was submitted that while there was no direct or eye-witness evidence to confirm Mr Mooney's act of diluting or tampering with his urine sample, that, of itself, did not break the chain of causation and did not preclude RailCorp and the Board from reasonably concluding that Mr Mooney was guilty. It was worth noting that direct or eye-witness evidence of dilution or tampering would be rare in cases of this nature. 169Mr Mooney had pleaded not guilty to the allegation but did not deny the allegation at first. In his first response to the allegation, he stated that he was "in a state of shock to be accused..." and explained in detail the amount of water he drank and the medication he took prior to the test. The first time he expressly denied the allegation was during his disciplinary interview when he was asked directly whether he diluted or placed any other substance in the container. 170RailCorp's submitted that none of the issues raised by Mr Mooney in his defence concerning water, medication and the collection procedures of Laverty Pathology, affected the actual test result and therefore, the logical and reasonable conclusion was that Mr Mooney provided a urine sample that was either not of human origin or was diluted after voiding. 171RailCorp then addressed and responded to the specific issued raised by Mr Mooney in his defence as follows: Water and medication 172Mr Mooney's evidence was that he drank approximately five to six cups of water and took a couple of Nurofen on the morning before his urine test. In his disciplinary interview he explained that he has a symptom called oesophagus spasm (for which he takes Nexium once per day), which causes him to drink a lot of water. He also provided details of other medication that he had taken in the two weeks prior to the test and evidence of dental treatment a few days prior. Grech Partners Solicitors submitted on his behalf - "the effect that any medication may have on creatinine levels is a medical consideration. However, no medical evidence had been provided on Mr Mooney's behalf to suggest that water, Nurofen or Nexium could have affected his urine sample and/or the test result. 173As part of his investigation Mr Healy made enquiries with RailCorp's Chief Health Officer, Dr Armand Casolin, about the medication taken by mr Mooney. Dr Casolin noted that codeine was detected in his sample but said that the presence of other drugs could not be excluded because of the extreme dilution of the sample. Dr Casolin confirmed that the explanation given by Mr Mooney in his response to the allegation did not account for the dilution of the sample. 174Throughout these appeal proceedings Mr Healy made further enquiries with Dr Andrew Carter, Deputy Medical Director at Laverty Pathology. Concerning Mr Mooney's point that he drank a lot of water, the Australian Standard AS/NZS 4308:2008 (tab D13) and advice from Dr Carter was that no human sample of urine could be reduced as low as 0.1mmol/L by drinking large amounts of water. 175It was submitted that the evidence was therefore clear that neither the water drunk, nor the medication taken, by Mr Mooney provided an alternative explanation for his urine test result that it was not of human origin or diluted after voiding. Cubicle door 176The issue of whether the cubicle door was left open or closed while Mr Mooney provided his urine sample was relevant to the opportunity for him to dilute or tamper with his sample. The Australian Standard AS/NZS 4308:2008 specified that donors provide a specimen in an area such that individual privacy is maintained. 177Mr Mooney stated in his first response to the allegation that he "went into the cubicle with her outside and carried out what was requested of me then returned the container". In Grech Partners Solicitors' letter of 7 February 2012, it was submitted that, "At the time our client was providing his urine specimen the collector was standing less than two metres directly behind him" and "The collector stood directly behind our client while he was providing his urine specimen". In his disciplinary interview on 6 December 2011 the Investigator asked him, "Are you saying that the door was open and she was standing behind you?" He responded, "The door was open, yeah. I mean - yes, yes, the door would've been open, yeah. Yeah, it definitely wasn't closed, that's what I mean, yeah." 178The evidence of Ms Bhattacharjee was that the cubicle door was closed. She stated, "I never leave the door open when a Donor produces a sample of urine, the door is always closed." This accorded with the Laverty Pathology's "Step by Step Procedure for Urine Testing (RailCorp)" which states, "11. STAND OUTSIDE CLOSED DOOR WHILE SPECIMEN PRODUCED". 179It was submitted that Ms Bhattacharjee's evidence should be accepted as the most reasonable and likely position in the circumstances. It is also notable that Mr Mooney did not specifically mention or raise any complaint about the cubicle door being open during his test until he was directly questioned on this point by Mr Healy. 180Further, the nature of the procedure and privacy considerations were such that a Pathology Collector could not rule out every opportunity for a donor to dilute or tamper with his/her sample. RailCorp employees were made aware of their responsibilities and agreed to undertake random drug and alcohol tests while at work. It was not, and should not, be the responsibility of the RailCorp Testing Officer and/or the Laverty Pathology Collector to go beyond reasonable compliance with the "Step by Step Procedure for Urine Testing (RailCorp)" which specified that the door is closed while a urine sample is produced. 181It was submitted that even if the door was open there had been no suggestion that Ms Battacharjee could see what he was doing and again there was the opportunity for Mr Mooney to tamper with his sample. Temperature and creatinine levels 182Mr Mooney had noted that Ms Bhattacharjee conducted a temperature test of his urine sample and said it was "ok. The Drug Testing Control Form indicated that the temperature was 34 degrees Celsius, making it within the range deemed acceptable by the Australian Standard AS/NZS 4308:2008. It was therefore likely that Ms Bhattacharjee did say that the temperature reading was okay. Regardless, the temperature test was an initial screening designed to trigger the Collector to request that a further sample be provided if the temperature was outside a specified range. It was not necessarily indicative of the ultimate laboratory test result and should not be considered as such. 183Ms Bhattacharjee also conducted a creatinine test, which was recorded as within the "Normal" range on the Drug Testing Control Form. Upon first consideration, the DRP referred the matter to Mr Healy for further enquiries as to why the creatinine level was initially normal but not when subsequently tested at the Laverty Pathology Laboratory. Mr Healy then made enquires with Dr Casolin who advised that the test conducted at the time of voiding the urine sample "is a simple dipstick test that... is not an accurate measure of creatinine concentration." Dr Carter confirmed this in his email of 9 May 2012 where he stated that the "on-site test for creatinine levels is a less accurate test than the laboratory test for creatinine." The superiority of the laboratory test is noted by the Australian Standard AS/NZS 4308:2008 at section 3.6.1 which states that in the case of a discrepancy between the two, the laboratory result shall take precedence. 184It was submitted that the difference between the two creatinine test results and the "okay" temperature test were therefore not matters which raised questions over the integrity of the collection procedure. Mobile phone calls 185Mr Mooney submitted that during the collection procedure Ms Bhattacharjee was trying to call someone on her mobile phone to retrieve "a number of some kind. Grech Partners Solicitors submitted on his behalf that it is "open for question as to whether the proper procedure for testing was followed", but no evidence had been provided as to how the proper procedure was allegedly breached by the making of phone calls (which was denied). 186Ms Bhattacharjee stated that she did not recall, and did not believe it to be true that she was making telephone calls during the collection of Mr Mooney's sample. Laverty's procedures did not permit her to make telephone calls during collections. More importantly, the collection procedures involved no requirement for numbers of any kind to be obtained. All necessary documentation and equipment was pre- numbered/identified, packaged and sealed. The sealed package was opened in full view of the donor and in the unusual event of anything faulty or missing, a new sealed package would be used. 187Further, Mr Mooney had not specified how he considered the supposed telephone calls to have affected the outcome of his urine sample. He stated during his disciplinary interview that he was familiar with testing procedures, having been tested "about 10 times" in the past and that from what he could tell, Ms Bhattacharjee "did everything as normal... there was nothing out of the blue, there was nothing... different about the whole procedure". Consistent with this, he signed the Laverty Pathology Drug Testing Control Form (confirming that the form and the label were correct) and the Urine Sample Collection Checklist form. At no stage did he indicate that the urine sample was labelled incorrectly, or that a number was missing or that the containers were unsealed. A review of the relevant documentation shows the "UID No." and the "Lab Number" were duly entered onto the Contemporaneous Notes form, the Drug Testing Control Form, and the Pathology Reports where required and correctly. 188It was submitted that the suggestion that Ms Bhattacharjee made mobile phone calls during the collection of Mr Mooney's urine sample was unproven and, in any event, provided no explanation for the ultimate test result. Telephone conversations with Laverty Pathology 189Grech Partners Solicitors, in their letter of 7 February 2012, appeared to submit that a telephone conversation between Mr Mooney and a representative at Laverty Pathology was evidence that there was no wrongdoing by him. 190RailCorp had obtained a statement from Ricky Zaragoza, Commercial Client Coordinator at Laverty Pathology, setting out the telephone conversations he had with Mr Mooney which in no way related to his test result and merely confirmed that the results of his second urine test were fine. 191Ms Baxter submitted that Ms Battacharjee's evidence should be accepted. Any mistake or error she might have made according to the allegations that had been put to her were not worth concealing. She had no motive to tamper with Mr Mooney's urine sample as she had been accused of doing and even less motive to conceal any mistake. Her evidence under cross examination was that at the time of Mr Mooney's test she had been well trained into the job and was confident of the procedures she was to follow. Even if a mistake was made and urine accidentally spilt her evidence was that she would deal with it by obtaining a new testing kit and requiring Mr Mooney to do his teat again. 192It was also submitted that as well as Ms Battacharjee's lack of motive to tamper with the sample it must also be considered that she had no real opportunity to do so. Mr Mooney agreed that the handling of his sample was done in front of him. There was disagreement as to where this took place but there was evidence from other witnesses to suggest that the drawing of the samples takes place in the bathroom and that was certainly Laverty's procedures as seen in the documentation attached to Ms Battacharjee's statement. 193It was also submitted that it was a common sense, reasonable approach and best practice, and there was no reason for a person to physically carry a sample into another room before drawing it carry out. Ms Battacharjee's evidence was that she had a simple box that enabled the drawing into the vials. On the balance of probabilities there was very little opportunity to spill and even less opportunity for her to then turn around and add water to the container. Ms Baxter also questioned firstly, her ability to add water in the amount of time Mr Mooney referred to that she was alone with his sample, and secondly, this was the first time he had raised this issue. It was not raised during the entirety of the disciplinary process. 194Ms Baxter also pointed out that Mr Mooney could not recall specifics of the test, such as how she drew the urine into the vials, yet could recall where it took place. It was submitted that in the same way his recollection was vague on certain points of the test it may well also be vague with respect to other aspects of the test. 195Ms Baxter confirmed the presence in the court room during Ms Battacharjee's evidence of Ms Mina Fressi, Laverty Commercial Collection Coordinator and a person referred to in Mr Healy's Investigation Report. 196Ms Baxter summarised the evidence of the other RailCorp employees giving evidence on Mr Mooney's behalf and generally submitted either that it should be given little weight that a witness was recounting their own experiences, Mr Mooney was seen at various times, but no witness saw him voiding his sample. 197It was submitted that the evidence of Dr Casolin negated the evidence of Mr Felgate and the hair sample tested was not conclusive proof that Mr Mooney did not have anything in his system But to some extent RailCorp did not care what he had in his system because the allegation put to him was of providing a sample that was either not of human origin or diluted after voiding. 198It was submitted that overall, the evidence showed that none of the matters raised by Mr Mooney were sufficient to counter the fact of his urine test result, which was not of human origin or diluted after voiding. Mr Mooney had agreed he had every opportunity to tamper with his sample, was aware of his responsibilities under RailCorp's policies and every motive to tamper with his sample so as to avoid dismissal if he was caught. The reasonable and logical conclusion in the circumstances was that he diluted and/or tampered with his urine sample in an effort to avoid an authentic drug test. 199On the balance of probabilities it was reasonable to conclude that Ms Battacharjee did not tamper with the sample and that Mr Mooney did. There was no evidence of Ms Battacharjee tampering with his sample. If the Board accepted that she had done so then that would have far reaching consequences beyond Mr Mooney's dismissal or reinstatement. For any systmen of drug and alcohol testing to work it relied upon rigorous procedures and those procedures should be accepted as good evidence when there was no evidence to the contrary. The only evidence was Mr Mooney's claim that he did not do it. In the face of the test result that would suggest that Mr Mooney had been less than honest in the evidence he had provided throughout the disciplinary process and, it followed, in this hearing. 200Further, RailCorp was required to ensure safety in the workplace and did so (in part) by confirming that employees were drug and alcohol free while at work. Mr Mooney's actions in diluting or tampering with his urine sample had prevented RailCorp from confirming his sobriety and denied RailCorp an opportunity to refer him for drug rehabilitation if necessary. 201RailCorp was also entitled to have employees who complied with its Code and its Drug & Alcohol Policy, particularly in respect of safety matters. It was submitted that this was all the more significant in respect of Rail Safety Workers, such as Mr Mooney. 202On the issue of dismissal being the appropriate penalty, it was submitted that Mr Mooney was a Train Driver with over four years' experience. Train Drivers were required to drive trains to ensure safe and efficient carriage of the travelling public and were Rail Safety Workers, Category One. They were responsible for performing all safe working and operational procedures and having a thorough and up to date knowledge of safe working and emergency procedures. By rendering his urine sample ineffective and maintaining a not guilty plea, Mr Mooney had failed to accept responsibility for his actions. RailCorp could not, with confidence, safely allow him to continue driving trains. 203It was submitted that none of the character references Mr Mooney had provided with his response to the preliminary recommendation for dismissal went to the allegation in question. Comments as to his character did not detract from the seriousness and safety risks associated with the matters in question. 204It was submitted that having regard to RailCorp's and Mr Mooney's safety obligations (as previously referred to) dismissal was the appropriate penalty in the circumstances. Further, it was not in the public interest to alter RailCorp's decision. Submissions on behalf of the Appellant 205Mr Edghill made oral submissions in addition to the written submissions as filed (Exhibit 4) and in doing so also took the Board extensively to relevant extracts from the transcript and the written evidence (as filed) in support of those submissions. 206It was submitted that Mr Mooney's appeal must be upheld because RailCorp could not prove what they alleged, that being that Mr Mooney tampered with a urine drug sample that he provided as part of RailCorp's random drug screening program by either providing a sample that was not his urine, or that he added a substance to his urine after expelling it into the sample container. By inference, RailCorp also alleged that he had, or believed that he had, some kind of illicit drugs in his system at the time of the test. This must be considered part of the allegation against Mr Mooney as otherwise he would have had no reason to alter the sample he provided. RailCorp also had to prove not simply the existence of a failed test but that Mr Mooney took action to cause the test to fail and acted fraudulently and did so in a calculated way. 207It was submitted that Mr Mooney had consistently denied that he altered his urine sample in any way, or that he provided a sample that was anything other than his own urine. He had also consistently denied that he had any drugs, or was concerned about the presence of drugs, in his system at the time of the test in question, or at any other time whilst an employee of RailCorp. 208As Mr Mooney had indicated a 'not guilty' plea in relation to the allegations the Board had two functions. Firstly, to determine if RailCorp could prove on the evidence that Mr Mooney altered the outcome of the drug test in question by providing anything other than his own urine or by adding anything to his urine. Secondly, if the misconduct was found to be proved, to determine whether dismissal was the appropriate punishment in the circumstances, or whether it was harsh. 209It was submitted that RailCorp relied on only three kinds of evidence relevant to the question of whether it could be proved that Mr Mooney altered the outcome of the drug test in question: The drug test result , The evidence of Ms Battacharjee the Pathology Collector, and The evidence of Mr Fredericks, the RailCorp Testing Officer. The Drug Test 210The RTBU did not take issue with RailCorp's reliance on the actual drug test result and the low creatinine level reading returned of the tested sample which showed that the sample was either not normal human urine, or that something was added to the sample to dilute it after it had been voided by Mr Mooney. It was conceded that it was most likely that something was added to his sample after voiding which had the effect of diluting it and changing the creatinine level. 211It was submitted, however, that when considering this evidence the burden on RailCorp was not simply to prove that the sample was altered, but to prove that the sample was altered by Mr Mooney. It was obvious that while the result proved the existence of an altered sample, it did not prove who altered it, when it was altered, how it was altered and it certainly did not prove that Mr Mooney altered it. When all of the evidence was considered, it was inherently unlikely that it was Mr Mooney who altered the sample. 212The RTBU submitted that it should also be noted that the test result did not show any levels of any banned substances but did show the existence of codeine which Mr Mooney had properly declared before submitting to the test. 213Ms Battacharjee's evidence: The RTBU noted that: * Ms Battacharjee admitted she had "no independent recollection" of collecting Mr Mooney's sample and simply outlined the normal process for a collection and her apparent assumption that she followed this process when collecting his sample. In these circumstances, it was submitted that where Ms Bhattacharjee's evidence differed from Mr Mooney's on issues of the specific sample collection procedure, such as whether the toilet cubicle door was open and whether she was using her phone during the procedure, the evidence of Mr Mooney should be preferred because he actually remembered the specific collection and, by her own admission, Ms Bhattacharjee did not, but said she always closed the door and believed Mr Mooney would have closed the door and latched it. * Ms Bhattacharjee stated that she did not believe she was on her mobile phone (but again, she could not recall) because this was not permitted by her employer's procedures. She carried two mobile phones, both switched on and both on her person. This was a small point but its relevance was that it reflected on the reliability of her evidence that she always followed procedures. In addition to Mr Mooney, another senior RailCorp employee, Acting Operations Standards Manager Mark Willis, had provided a statutory declaration stating that he also observed Ms Bhattacharjee using her mobile at a similar point in the testing procedure when she tested him. There were now two people, including a senior employee still employed by RailCorp, swearing statements that Ms Bhattacharjee did not follow her employer's procedure by using her mobile while collecting samples. When this evidence was weighed against her stated 'belief' that she always followed procedure, her statements with regard to the cubicle door being closed during Mr Mooney's test, and her credibility as a witness, must be seriously doubted by the Board. * Ms Battacharjee's evidence was also that she took considerable steps to prevent Mr Mooney having an opportunity of diluting his sample (dye in the toilet bowl, listening for sounds etc), there was no suspicious behaviour etc. * Ms Bhattacharjee provided information on, and signed, the 'Drug Testing Control Form'. After Mr Mooney provided his sample and Ms Bhattacharjee took possession of it, two tests were conducted by her: 1.A temperature test conducted within four minutes of the sample being provided and returning a normal result. This showed that either nothing had been added to the sample at this point in time or, if something had been added, it was also at body temperature at the time it was added. 2.A test of the creatinine level of the sample which also returned a normal result. RailCorp had provided no evidence to suggest that this test which it relied on was inaccurate or that the equipment used on that day was faulty. 214It was submitted that it was inherently unlikely that Mr Mooney, while in the cubicle, could have produced a liquid at body temperature and with creatinine levels within the normal range, that was anything other than his own urine, and only his own urine. It was also pointed out that Ms Battacharjee did not know why a temperature test was conducted. 215Further, at the time Mr Mooney's sample was provided it was tested for signs of dilution and returned normal results. It was also pointed out that Ms Battacharjee did not seem to know if the creatinine level could be altered by adding water to the sample. After that point in time, he relinquished possession of the sample and never took possession of it again, this was confirmed by Ms Battacharjee. This would lead the reasonable person to conclude that any dilution of the sample happened after it left Mr Mooney's possession and, obviously, was not done by him. 216Mr Edghill said that the issues concerning Ms Battacharjee were not raised to be unnecessarily critical. However it was fair to note if the person conducting the tests did not have a knowledge of them, did not understand why they were conducted or how they worked this was very concerning. RailCorp relied on these tests and people's jobs and livelihoods depended on the outcome. 217It was also submitted that Ms Battacharjee clearly said on a number of occasions that she had no independent recollection of collecting Mr Mooney's sample, and instead of remembering, she recounted her employer's procedures and steadfastly stated she would have followed those procedures. Ms Battacharjee had an interest in sitting before this Board and stating that she followed her employer's procedures, and as alluded to by Ms Baxter, she had a manager from her employer sitting in the court room while she gave that evidence. 218Mr Edghill submitted that it should also be considered that at the time of Mr Mooney's test she had been working as a casual for three weeks, had one week of training and two weeks of actually going out and conducting sample collection. She had no independent recollection 219It was submitted that on the basis of her evidence, her beliefs, and not her memory, that she followed the correct procedure it could not be ruled out that she made some kind of mistake. It could not be ruled out that that she somehow spilt part of the sample and added water to it. 220Mr Edghill also rejected Ms Baxter's submission that even if Mr Mooney's evidence that she was alone with his sample for 30 seconds was accepted, she had no opportunity to add water to it. That was simply not true. She was in a small room, she had access to a basin, she had one container with urine in it (according to Mr Mooney's evidence) and it wouldn't have taken her more than 30 seconds to turn a tap on. 221Mr Fredericks' evidence: Mr Fredericks' contemporaneous notes included his observation that Mr Mooney showed no signs of intoxication or impairment which supported Mr Mooney's contention that he had no reason to try to alter his sample as he did not have any illicit drugs in his system, and added weight to the submission that it is inherently unlikely that Mr Mooney altered the sample, 222It was submitted that it was clear from RailCorp's own evidence that they were unable to substantiate the allegations against Mr Mooney and unable to meet their burden of proof in this case. Any serious examination of RailCorp's evidence would lead the reasonable person to conclude that the urine sample provided by Mr Mooney was a normal sample that had not been altered in any way, and that any alteration of the sample must have taken place after it left Mr Mooney's possession. 223Dr Casolin's Evidence: In response to Dr Casolin's evidence it was submitted that his statement sought ought to cast doubt on Mr Felgate's report and it opined that Mr Mooney may very well have been an occasional drug user and this would not have been uncovered in the hair analysis. This contention was never put to Mr Mooney. Dr Casolin said the tests were inconclusive and also listed a range of other drugs not tested. However in cross examination he agreed the Laverty tests were not completely conclusive nor were those other drugs tested for. He also agreed that if the hair was uncut then it could cover the period suggested by Mr Felgate. This was another issue not put to Mr Mooney. 224Dr Casolin opined that the most likely scenario was that warm water was added to the sample after being expelled from Mr Mooney's body and there was a discussion as to apparatuses that could be bought off the internet and other substances that could be added. This was not something really canvassed with Mr Mooney and Dr Casolin agreed that the most likely scenario was that water was added at some point. 225It was also suggested that the dipstick test was inaccurate but there was no evidence that it was inaccurate or that other tests carried out that day were inaccurate. However one reason for the sample passing the creatinine test was that it was Mr Mooney's urine that was tested and what was added was added at some time after that test. At no time after that test did Mr Mooney touch his sample. 226Dr Casolin also agreed that one way the temperature test could have been passed was if Mr Mooney somehow warmed up the water in a microwave etc. That did not take into account the mathematics/figuring out required to achieve that by the time of providing the sample without the collector noticing something. Another reason for passing the temperature test was that Mr Mooney produced the liquid from his body inside the cubicle and gave it to the collector for testing and that whatever was added was added after that test. 227Dr Casolin agreed that was possible. Mr Edghill suggested very strongly that it was not only possible but far more plausible than what was suggested of Mr Mooney. 228Mr Healy's evidence: It was submitted that the most illuminating aspect of Mr Healy's evidence was that he started with an assumption of guilt and Mr Mooney was then expected to convince him otherwise. He did not investigate any other possibilities that were reasonable or any observer of the evidence might consider. He did not consider any other possibility. He did not interview the Collector or conduct any investigation of what happened to Mr Mooney's sample after it left Mr Mooney's possession. He refused to consider the very reasonable propositions put as to why the tests were passed as agreed by Dr Casolin. 229It was submitted that the process followed by RailCorp in determining Mr Mooney's guilt could not receive the tick of approval from the Board. It was not a fair process. A person could not be accused of wrongdoing and then told to prove otherwise and when they could not, then tern around and say their suspicions were confirmed. He who asserts proves and Mr Mooney could not prove something in the negative. 230Mr Edghill also submitted that Mr Healy had been asked a series of specific questions about specific evidence he had collected and answered in the negative and agreed that he had no direct evidence of Mr Mooney tampering with his sample. 231It was submitted that it should be exceedingly clear that RailCorp had simply failed to meet their burden in this case. It was their role to prove that Mr Mooney altered his sample and on any balance that had not been proved. That was not the evidence, the evidence went the other way. 232Mr Mooney's evidence: It was submitted that RailCorp bore the burden of proof, not Mr Mooney. In spite of this, Mr Mooney had gone to great lengths to show that he had nothing to hide and had no reason to alter the sample he provided to RailCorp. An examination of Mr Mooney's evidence clearly demonstrated that it was inherently unlikely that he either could have altered the sample, or that he would have wanted to alter the sample: * He denied that he used drugs before the test of 11 October, had drugs in his system at the time of 11 October, or that he took any action to alter the sample provided. * On the day of the test he did not exhibit any signs that he was under the influence of any drug or that he was in any way concerned about submitting to a drug test. * This statement was supported by the statements/evidence of a number of other RailCorp employees. * He was in the presence of other employees during the entire time between learning of the presence of the drug testing unit and submitting to a drug test himself and did not have any opportunity to retrieve or prepare any 'non-human sample' or retrieve or prepare any substance to dilute his sample with. * This statement was also supported by the statements/evidence of a number of other RailCorp employees. * He was not wearing any bulky pieces of clothing and had nowhere to conceal any substance that could have been added to his urine or provided instead of his urine. * He was not alone with his sample at any point in time. After voiding it with the cubicle door open in the presence of the collector, he handed it to the collector to be tested for diluting, a test that was passed. * He had no opportunity to alter the sample either before or after providing it to the collector. * He then left the room before the collector and when he did so the Collector was alone in the female toilets with the sample. * Any reasonable reviewer of the evidence would conclude that this is the most likely time that any substance, such as water, could have been added to the sample. * He had been tested for drugs a number of times at RailCorp and had never failed, refused or avoided any other test. * He submitted and passed a test only 15 days later on 26 October 2011. Many drugs that are tested for, such as cannabis, remain in the system for long periods of time and likely would have shown up in this second test. 233It was submitted that this second test result together with the evidence of the five Railcorp employees present on the day added weight to the submission that Mr Mooney had no reason to alter the sample and that it was inherently unlikely that he did. 234Mr Mooney had also provided further evidence in the form of having a sample of his hair tested at Forensic Science SA, a part of the South Australian Government's Attorney-General's Office to demonstrate that he had no drugs in his system at the time of the RailCorp drug test and so had no reason to alter his sample. That evidence was then detailed (see Background and Chronology above) with Mr Felgate, Manager of Toxicology indicating the result confirmed the presence of codeine and alprazolam, consistent with Mr Mooney's stated use of codeine and his use of Xanax on a flight from Dublin to Sydney in September 2011. This suggested, as per Mr Felgate's letter, that the tested hair sample covered the period of RailCorp's test of Mr Mooney on 11 October 2011. 235It is submitted that the Board must have confidence in this test due to the way that it was collected by Dr Saha and because the test was conducted by an Australian government department. 236Mr Edghill also referred to the submission made that RailCorp didn't care what Mr Mooney had in his system and said that this was an incredible submission to make. Mr Mooney was a person trusted to drive trains and a person who even after the issues were first raised with him was given a promotion. 237It was submitted that this submission by RailCorp was illogical as in order for Mr Mooney to have any reason to alter the test he must have been a drug user. In fact for Mr Mooney to be so cool calm and collected to evade a drug test it would mean he was a regular drug user. It therefore mattered whether Mr Mooney used drugs. However not one piece of evidence pointed to him using drugs. 238The RTBU submitted that the weight of the evidence provided by Mr Mooney, when considered in conjunction with the evidence provided by RailCorp was overwhelming. He had no reason to alter the urine sample provided on 11 October 2011 as he had no illicit drugs in his system at that time. Mr Mooney had no opportunity to alter the sample that he provided as he was in the presence of other people right up to the time of providing the sample. He had no opportunity to alter the sample after it was provided as it was taken from his possession and tested for signs of dilution, tests that the sample passed. No person saw Mr Mooney alter the sample and no person saw him act in any way that suggested he was nervous, concerned or impaired by drugs. 239The RTBU submitted that in relation to the investigation undertaken by RailCorp, the Investigation Report demonstrated that they did not investigate any possible reasons for the failed drug test, other than the sample being altered by Mr Mooney. RailCorp appeared to consider no other possible reason for the failure of the test. This was despite the fact that the evidence collected in their own investigation would suggest to any reasonable or competent reviewer that there were other more likely reasons for the failed test that should have been investigated. Their evidence showed that the most likely scenario was that the sample was altered after it left Mr Mooney's possession. That such a scenario was never properly investigated was a failure by RailCorp, not Mr Mooney, and should not be held up as somehow adding weight to RailCorp's claim that Mr Mooney altered the sample. 240In conclusion the RTBU submitted that RailCorp could not meet their burden of proof in this case and prove that Mr Mooney committed the serious fraudulent and calculated misconduct they say took place. They had provided no evidence that Mr Mooney did anything other than provide a sample of his own urine, and only his own urine, on 11 October 2011. The evidence showed that it was inherently unlikely that Mr Mooney could have altered his sample, and it was inherently unlikely that he would have wanted to alter his sample. The evidence showed that Mr Mooney did not have drugs in his system at the time of the test. Mr Mooney was not required to prove how the sample was altered. 241In spite of this weight of evidence, Mr Mooney had been unfairly dismissed, which had had enormous negative effects for him and his family. It was the Board's job to set this injustice right. In these circumstances where the misconduct alleged simply did not happen then Mr Mooney should be reinstated to his former position and location at RailCorp, with full continuity of employment and full back pay. Submissions in Reply on behalf of the Respondent 242Ms Baxter refuted the RTBU's submission that it had been alleged "by inference" that Mr Mooney had illicit drugs in his system at the time of the test. The allegation for which he was dismissed was set out clearly in RailCorp's Written Case. Mr Mooney was dismissed for failing a random drug test by providing a urine sample that was either not of human origin or was diluted after voiding - not for returning a positive drug test. 243RailCorp also refuted the RTBU submission that RailCorp could not substantiate the allegation and/or meet the burden of proof in this case. It was not RailCorp's role to prove that he did it with direct evidence. RailCorp's role was to substantiate the allegation based on the evidence before it, that was, the outcome of the drug test (Laverty's report) and the procedures followed (the Australian/New Zealand Standard AS/NZS 4308:2008). It would be rare to have evidence of someone directly tampering with a sample. 244The RTBU had submitted on Mr Mooney's behalf that given the low creatinine level indicated on the Laverty Pathology Report, it was "likely that something was added to the urine sample after voiding which had the effect of diluting it.." Mr Mooney denied that he tampered with the sample after voiding and his defence was therefore based on the inference that Laverty Pathology in some way tampered with or affected the sample, either during collection, transportation or analysis. Mr Mooney had provided no relevant evidence to support this inference. 245RailCorp submitted that in the absence of evidence to the contrary, pathology test results reporting the positive presence of drugs were widely accepted as valid (in the face of an employee's denial) due to the strict collection and testing procedures maintained in compliance with the Australian/New Zealand Standard AS/NZS 4308:2008. 246In this case, the Laverty Pathology Report was clear that the Australian/New Zealand Standard AS/NZS 4308:2008 was complied with in all respects. The evidence of Laverty Pathology Collector, Jhuma Bhattacharjee and Mr Mooney's own observations that the collection proceeded "as normal" supported this. As there was no evidence of a collection or testing analysis error, the validity of the Laverty Pathology Report should be accepted as valid and robust evidence that Mr Mooney provided a sample that was not of human origin or diluted after voiding - and in doing so, breached the RailCorp Code of Conduct and the System Requirement, Drug and Alcohol Management. 247On behalf of Mr Mooney a 'Toxicology Report' dated 16 June 2012 was proffered as evidence that he had not taken any illicit drugs on or around 11 October 2011 and therefore had no reason to alter his urine sample. A careful reading of that Report showed that Mr Mooney's pubic hair analysis could not be treated as conclusive evidence, because factors such as the growth rate of the hair, and whether or not the hair had previously been cut, were variable and unknown. RailCorp's Chief Health Officer, Dr Casolin had provided written evidence to this effect and also noted that certain types of drugs may not have been detected by the hair analysis. It was submitted that having regard to the evidence of Dr Casolin, Mr Mooney's reliance on this Toxicology Report as evidence that he had no motive to tamper with his urine sample, did not hold. 248In response to the RTBU's submission that the test result did not show any level of banned substances, it was submitted that this was a moot point - the Laverty Pathology Report clearly stated that the sample did not meet the sample integrity criteria outlined in the Australian/New Zealand Standard AS/NZS 4308:2008. Therefore, the "presence of other illicit drugs cannot be excluded because of the limited sample integrity." 249RailCorp refuted the RTBU submissions concerning Ms Battercharjee's evidence as to the testing she performed as incorrect and/or misleading. The submissions were not supported by evidence and ignored the pathology and medical evidence set out and referenced in RailCorp's Written Case. The RTBU's suggested plausible explanation of spilling the sample and topping it up was an incorrect position and Ms Battacharjee's evidence about what she would do in such a situation was reiterated. Mr Mooney was the first person tested that day and there was no reason why she could not have made him wait and come back later. 250RailCorp submitted that the evidence that Mr Mooney showed no signs of intoxication or impairment on the morning of his test was irrelevant. The allegation for which he was dismissed was not that he was "under the influence" of some kind of drug on 11 October 2011. Nor was a test of "influence" ever relevant to RailCorp's Code of Conduct and or Drug and Alcohol Policy. 251RailCorp submitted that the evidence which Mr Mooney sought to rely upon that he was not alone in the workplace prior to his test on 11 October 2011, did not preclude him from the opportunity to dilute or tamper with his sample. Mr Mooney had noted that his 'B' sample of urine, which he had tested by Douglas Hanly Moir Pathology returned a different result for creatinine than the Laverty Pathology Report. Irrespective of any real difference in the levels, it was clear from both documents that the creatinine level was consistently, and sufficiently, low to result in the same outcome - that the sample provided was not consistent with human urine. 252In refuting the RTBU's submissions concerning Dr casolin's evidence ms Baxter submitted that his evidence should be put in context. It was simply saying the hair analysis was not conclusive proof he had no drugs in his system. RailCorp did not necessarily accuse Mr Mooney of being an occasional drug user, it was simply a possibility. 253Ms Baxter also rejected any criticism of suggested Mr Healy for not exploring other alternatives. Based on the evidence before the Board there had been nothing provided from Mr Mooney, only speculation. 254Ms Baxter also submitted that her comments about RailCorp not caring what Mr Mooney had in his system was taken out of context. Railcorp certainly did care about whether rail safety workers and all employees potentially had drugs in their system and that was why these test were undertaken. If RailCorp had received this test result, simply ignored it, decided there was insufficient evidence, then that would have been reckless and unsafe for RailCorp to do. Due respect was given to the procedures on which everything was based and on a great significant balance of probabilities those were valid and correct results. 255Ms Baxter maintained that Mr Mooney was guilty of the allegation that he failed a random drug (urine) test by providing a sample that was either not of human origin or was diluted after voiding and that dismissal was the appropriate penalty and should not be overturned. Findings 256This is an appeal under clause 43 of the Transport Administration (Staff) Regulation 2005 against RailCorp's decision to impose the punishment of dismissal on Mr Mooney. Section 23(1) of the TAB Act provides that the Board may decide to allow, or disallow the appeal, or make such other decision as it thinks fit. 257Mr Mooney disputes the findings made by RailCorp concerning the allegation against him and RailCorp's decision to dismiss him from his employment. The Board's function in this matter is to determine firstly, whether the allegation is sustained and secondly, to determine whether the disciplinary punishment imposed by RailCorp in relation to its findings is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. 258The Board is obliged to determine the disputed issues before it on the civil standard of proof, that is, the balance of probabilities. The Board is also obliged to approach the matter in a manner consistent with the principles enunciated in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 (at 362) as follows: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect references. (Emphasis added). 259In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR at 449 - 450, Mason CJ, Brennan, Deane and Gaudron JJ explained the above passage from Briginshaw this way: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (Emphasis added). 260The Board has very carefully considered all of the evidence, both written and oral, and the detailed submissions of the parties in this appeal. 261As Mr Edghill has rightly pointed out what RailCorp have effectively alleged against Mr Mooney is far more serious than simply returning a positive test to the presence of drugs or alcohol in contravention of the Railcorp Code of Conduct and their Drug and Alcohol Policy. In order to fail a random drug (urine) test by providing a sample that was "either not of human origin or was diluted after voiding" it would clearly, in the Board's view, have been necessary for Mr Mooney to take calculated, deliberate and indeed premeditated, action to provide such a sample. The only motive he could have for doing so would have been to avoid the detection by RailCorp of some drug that he knowingly had (or believed he may have had) in his system on the morning of 11 October 2011 contrary to the Code and the Policy. 262The Board has been very mindful of RailCorp's responsibilities and obligations under the relevant Acts for the safety and wellbeing of the travelling public and also its employees, and of RailCorp's strong and demonstrated commitment to ensuring a workplace free of drugs and alcohol. The Board is also been very mindful of the relevant extracts of RailCorp's Code and its Policies in relation to drug and alcohol in the workplace as recently considered by the Board (as currently constituted) in James v RailCorp [2012] NSWTAB 27 traversed by the Board. 263This is not simply a matter where, in the absence of direct evidence, there is substantial circumstantial evidence available from the respondent, and an absence of any evidence to support an appellant's contrary contentions, as was the case in Ryan v RailCorp [2012] NSWTAB 21. The Board considers that, in the light of the seriousness of the allegation, the observations of the Full Bench of the Industrial Relations Commission in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 are particularly apposite as follows: 13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has long been established that the dicta laid out in the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, should apply. (Emphasis added) 264In Ryan the Board also pointed out the onus on an appellant under s.16 of the TAB Act "of proving any ground on which the appellant or person relies". 265The Board would hasten to make clear that Mr Mooney was not summarily dismissed by RailCorp on 21 March 2012, but dismissed with three weeks' notice paid in lieu. This represented a change in the preliminary recommendation of the DRP to summarily dismiss Mr Mooney (or dismiss without notice which is an effective summary dismissal) as conveyed to him in RailCorp's letter of 30 January 2012. Following further representations made on his behalf by his Solicitors and further enquiries of Dr Casolin the DRP reconvened and whist the penalty of dismissal was still to be imposed it was now with three weeks in lieu of notice paid. In the absence of any particular evidence or submissions it would be inappropriate to draw any conclusions as to why three weeks' notice was now to be paid rather than an effective summary dismissal, but it is a fact noted by the Board. 266The Board would state at the outset that Mr Mooney presented as one of the most genuine and truthful witnesses ever encountered by the Board (including when constituted as the Industrial Relations Commission). He was a witness of considerable credit and honesty in both his demeanour and the manner in which he presented his evidence. There was no attempt to dissemble or prevaricate in any way. He presented as a person genuinely perplexed as to how his sample could have produced (or rather not produced) the result that it did at the Laverty Laboratory and he was adamant he had produced his own urine, as required, for testing. 267The Board also notes Mr Mooney's unblemished record with RailCorp and that this was not called into question in any way by RailCorp. Indeed shortly after the test of 11 October 2011 he was asked to act in the higher, and responsible, position of Operations Standards Manager which would undoubtedly have carried on but for his removal from safe working as a consequence of his drug test result and the disciplinary investigation which then ensued. 268The Board also notes that Mr Mooney has been drug tested on a number of occasions and has never failed any such testing. 269The Board accepts the submissions of the RTBU that the way this matter was dealt with by RailCorp was to proceed on the assumption that Mr Mooney had produced the failed sample, and that in the absence of his ability to prove the contrary, he was logically guilty. In the absence of any direct evidence on the part of RailCorp, apart from the ultimate failed test result and the assumption of procedures followed, that would have imposed an impossible barrier for Mr Mooney to overcome. 270The Board accepts that nevertheless, as per the s.16 onus on him, Mr Mooney has taken all possible steps within his power and ability to establish that he did produce a urine sample that was his own urine on the 11 October 2011 and did not tamper with it or interfere with it in any way. The Board considers that those steps included the following: Not seeking to avoid the test in any way such as using his feeling unwell to go off sick; Cooperating fully in the test; * Submitting to a further drug (urine) test on 26 October 2011 as required by RailCorp; * Providing a detailed written response to the allegation outlining his recollection of the testing that day: * Attending a disciplinary interview and answering without hesitation or prevarication questions put to him by Mr Healy, the RailCorp Investigator; * Providing RailCorp with a 'Release of Information' to enable Dr Casolin to speak to his treating doctor/specialist about the medication he was taking at the time of the test; * Providing a further written response to the RailCorp's 'show cause' letter; * Obtaining his "B" sample (as he was entitled to do) and having that tested subsequently on 28 March 2012 by Douglas Hanly Moir Pathology: * In June 2012 providing a sample of his pubic hair as obtained by his own GP using the special kit provided and forwarding it to Mr Felgate at Forensic Services, a division of the South Australian Attorney General's Department, for analysis in an endeavour to verify and confirm what was in his system on the 11 October 2011; * Obtaining statements from a number of RailCorp employees with whom he regularly worked, and had contact with, and had done so for periods of from 2 to 4 years, that he was not known by them to be a drug user and as to also coming into contact with him on 11 October 2011 prior to the testing and essentially observing nothing out of the ordinary about him. * 271Indeed the Board has to wonder what else Mr Mooney (or any employee in a similar situation) could possibly have done to prove his innocence of the allegation given the absence of CCTV footage or any person standing witnessing the voiding of his urine into the container in the toilet cubicle. Short of that, there was in fact no way Mr Mooney could possibly have disproved RailCorp's allegation. 272However, Mr Edghill has also rightly pointed out that the onus was, and remains, on RailCorp to prove, on the balance of probabilities, that Mr Mooney, despite his protestations of innocence and the steps he has taken, did tamper with his sample in some way, provide some alternate sample, or diluted it with water by some unknown means. 273The Board acknowledges that Mr Felgate's Report only establishes the medication that was in Mr Mooney's system on 11 October, as he had told (and was noted by) Ms Battacharjee. The Board accepts unequivocally that the hair sample Mr Mooney sent was his pubic hair, and hair that had not been previously cut. While it was not conclusive proof that he was not an occasional drug user (just as Laverty's test would not have established that), what that evidence does establish and confirm, is firstly that he was truthful about what he had in his system on the day of the test, but secondly, and more significantly, for the Board, Mr Mooney's bona fides in the quite extraordinary lengths he has gone to in an effort to prove his innocence. 274The Board also accepts unequivocally the evidence of Mr Mooney that he did not have drugs in his system on 11 October 2011, did not tamper with his sample in any way, was not a drug user, and accepts the evidence of his co-workers as confirming that (within the obvious limits of their personal knowledge). As noted above the Board finds Mr Mooney to be a witness of truth and considerable credit. 275The Board does not accept the somewhat trenchant criticism levelled at Mr Healy by the RTBU for the investigation he conducted. He explored those alternatives that seemed to present themselves at the time. 276However, on Mr Healey's admission, this was the first time they had encountered a test that had produced the result of "not of human origin or diluted after voiding". In those circumstances it would have been necessary perhaps to both think, and investigate, outside the usual routine square. 277There was no questioning of other staff on duty that day as to opportunities Mr Mooney may have had to make some sort of preparation to tamper with a sample given in a test, or whether anyone at the site had any prior knowledge (before the Testers arrived on site that morning) that random testing was to be undertaken that day so that an employee (such as Mr Mooney or any other employee) with something to hide could take appropriate steps to either avoid the test altogether or obtain any 'kit' (such as referred to by Dr Casolin) to enable a sample to be provided that would pass the test without using their own urine. 278Indeed, on that issue of avoidance the Board notes that notwithstanding that Mr Mooney's evidence was that he had a cold/flu (and was taking medication for such) there is no evidence that he made any attempt to go home sick once he found the Testers were on site as an employee with something to hide might sought to have done. 279Unfortunately, apart from assumptions Mr Healy made about Mr Mooney as a result of the Laverty Lab Report, assumptions were also made about the testing procedures followed and the Pathology Collector concerned and an alternative scenario not explored forensically in any way. Ms Battacharjee was not interviewed, nor was a statement taken from her about what happened on 11 October 2011, until 30 April 2012 and in preparation for this appeal. She should have been interviewed as part of the investigative process. Particularly in circumstances where Mr Mooney had made it quite clear in his written response of 24 November 2011 that the separation of his sample into the three vials took place not in the toilet area as apparently assumed by Mr Healy but back in the first aid room where the separation, sealing and paperwork took place. 280At the disciplinary interview Mr Healy asked Mr Mooney to confirm the contents of his written response as correct, which he did. Mr Healy then did not ask any question whatsoever about this item of information as to the procedures followed, or a challenge him as to the correctness/truth of this information. 281Contrary to the submissions of Ms Baxter none of the other Railcorp employees confirmed that the drawing of the urine sample into the three vials took place in the toilet area. The only employee who gave any evidence about the procedures followed was Mr Willis (particularly in regard to Ms Battacharjee's use of the mobile phone in the first aid room). When he was specifically asked if the process of separation took place in the toilet area he said he "was not sure". He remembered the "couple of tests" she did, but was "not sure about that". This also accords with Mr Mooney's evidence that the dipstick test was done in the toilet area by dipping it into the actual container. 282The Board accepts that the only real relevance arising from the mobile phone usage by Ms Battacharjee (or the attempted use, given that both Mr Mooney and Mr Willis indicated she did not get a response and did not speak) was that it demonstrated that she departed from procedures and thus supports a contention that she departed from procedures in relation to the separation of Mr Mooney's sample into the three vials in the first aid room rather than the toilet area. She had two phones on her person (one provided by Laverty and her personal mobile) and on her evidence she turns neither off during testing. The Board does not consider that leaving mobile phones switched on whilst clients are being tested is appropriate. 283When Ms Battacharjee's evidence is considered, apart from the obvious issue that she had no independent recollection whatsoever of Mr Mooney's test, she was adamant that she would have followed Laverty's procedures. The Board does not consider this to be reliable or satisfactory evidence. 284When the actual Laverty Pathology 'STEP BY STEP PROCEDURE FOR URINE TESTING (RAILCORP), as attached to Ms Battacharjee's witness statement, is considered the following is listed inter alia: ............ 9. WHEN READY ESCORT CLIENT TO THE TOILET & EXPLAIN THE PROCEDURE(e.g. Don't flush the toilet, hand over the sample ASAP so we can read the temperature and check the creatinine) 10. ASK THE CLIENT TO WASH THEIR HANDS BEFORE GIVING THE SAMPLE. 11. STAND OUTSIDE CLOSED DOOR WHILE SPECIMEN PRODUCED. 12. AFTER PROVIDING SAMPLE, READ TEMPERATURE &SHOW TEMPERATURE TO CLIENT. 13. DRAW 3 URINE SAMPLES & CHECKED (sic) RESULT. 14. CONTINUE THE DCTF, RECORD THE TEMPERATURE, NUMBER OF SPECIMEN SENT AND CREATININE RESULT 15 . SEAL THE SPECIMEN WITH TAMPER PROOF SEALS A, B & C. ................. 285Nowhere in that Procedure does it actually specify where the drawing of the 3 urine samples is to take place and indeed then goes to "continue the DCTF (Drug Testing Control Form)", it is in fact silent on this issue, which would suggest a seamless transition and more than likely in the same location. 286The Board also notes that according to the Procedure the creatinine test (the dipstick test) is done after the drawing of the sample into the three vials. Possibly another departure by Ms Battacharjee from the Procedure. Yet it was the quite specific evidence of Mr Mooney that she dipped the strip into his container in the toilet area and Mr Willis could also verify she undertook the tests in the toilet area, which would tend to suggest (given that he could not specifically recall the separation step) that she also did the dipstick test using the container rather than one of the vials as appears to be required by the Procedure. Although somewhat confusingly Ms Battacharjee's evidence in her statement suggests that the strip is dipped into the container after the urine is drawn into the three vials as follows: ............ The Collector then places the lid of the container in front of the Donor and draws urine into the 3 sealed vacuum tubes; opens the container and tests the creatinine level in front of the Donor with the creatinine test strip and informs donor of the result. If the creatinine test result is in the abnormal range another test is usually undertaken later that day. 287Mr Mooney was very specific that the separation of the urine into the three vials was not done until they were back in the first aid room. This has been consistently maintained from the outset. 288The Board acknowledges however that the first time Mr Mooney said anything about Ms Battacharjee not going out of the toilet area door at the same time he did (either side by side or with one immediately following the other through the open door) and remaining in the toilet area alone with his sample, was not until the written statement he filed on 19 June 2012. Mr Mooney also acknowledged that in the interview with Mr Healy that the procedures were "generally followed". 289The Board accepts that at the time of the interview Mr Mooney essentially did not conceive of Ms Battacharjee as possibly tampering with his test at all. His concentration was obviously on the amount of water he had drunk and the medication taken as possibly explaining the test result. Those issues were both subsequently investigated by Mr Healy and eliminated. 290The Board accepts that once those possibilities were eliminated and with Mr Mooney knowing that he was innocent he would start to think carefully about all the steps that had taken place that day and what else could possibly explain what had happened. He explained that since then he had thought about it and believed that that was the only way it could have happened as it was the only time she was alone with his sample. The Board considers that it would not be unnatural for an employee to assume the outside employee conducting the test was doing so in a proper manner and not initially think twice about being alone with his sample for a matter of seconds. 291In relation to exiting the toilet area door whether the first scenario (exiting side by side) was actually possible would have depended on the width of the door, about which there was no evidence, but the Board would have thought it unusual for the door entry into a toilet area to be anything other than a standard door width. It would be more logical that she would follow him straight out the open door. The evidence of Ms Nissen (as requested by the Board) was that there were two entry doors to the female toilets from the corridor (one of which was usually chocked open but it is not known whether this was the case on 11 October 2011) both doors would automatically swing shut. So unless Mr Mooney held the door open for her (and there was no evidence that he did) then if Ms Battacharchee had not literally been on his heels following him it would have swung shut behind him leaving her in the toilet area on her own in any event. 292The Board should note here that the issue of the actual cubicle door being open is not considered by the Board to be particularly significant. As Mr Mooney mentioned and was readily observed by the Board he is a solid well-built man of average height and manoeuvring around to close a door within the relatively confined space of a toilet cubicle for purpose of giving a sample would not have been entirely practicable or an option of choice. 293Mr Mooney never claimed that Ms Battacharjee was actually watching him as some way of verifying that it was his urine that he was voiding into the container, just that he noticed she was standing behind him. Certainly in those circumstances if he had done anything noticeably untoward it would have been observed but only if she was looking and she may well have been looking away. The Board does not accept that simply because she was a female tester she would not be prepared to stand behind a male who had his back to her facing a toilet bowl and where she could not see his hands or see him actually providing the sample. To that extent it was being done in a private way. The fact that she ticked the appropriate box for the door being closed is not sufficient to be accepted as contrary evidence with Mr Mooney's evidence rejected, given that the check list completed was just a "tick a box" list of items. Again, given her relative inexperience (see below) the Board would consider it unlikely that she would write actually record the open door by way of a written comment as it would mean that she had not ensured that the procedure was followed by the Donor. 294The Board also notes that it was of great significance that at the time of the hearing Ms Battacharjee was a casual employee of less that one year's service, a fact not apparently known by Mr Healy until she gave her statement on 30 April 2012. She gave her oral evidence in front of a member of management from her employer. In those circumstances she was hardly likely to admit to any mistake even if she had recollected such. Such an admission could clearly quite possibly have had adverse consequences for her with her employer. 295Further, she did not apparently (from the questions directed at her) understand the purpose of the tests she conducted or that the addition of water could affect the test result. That may have been a language difficulty given that English was not obviously her first language but she appeared, albeit with some necessary further more simpler and basic questioning, to understand what was being asked of her throughout her oral evidence. 296The Board is not prepared to accept as reliable the evidence of Ms Battacharjee about what she "would have done" in relation to Mr Mooney's testing on 11 October 2011. The Board is however prepared to accept the contemporaneous evidence of Ms Battacharjee that exists in the Laverty forms she completed on that day which establishes that the urine sample provided to her by Mr Mooney passed both the temperature test and the creatinine test she performed on that sample as witnessed by Mr Mooney. 297The Board considers and finds that the evidence of Mr Mooney, together with the contemporaneous documentary evidence of Ms Battacharjee establishes that Mr Mooney did provide a sample of his own urine that was not tampered with or diluted in any way on 11 October 2011. 298As Mr Edghill again rightly pointed out the Laverty Lab result did not establish in any way at what in time point the sample was diluted or by whom. Dr Casolin conceded that water could have been added after Mr Mooney provided Ms Battacharjee with his sample and she carried out the two tests. The Board considers that it was not only possible, but probable, that this was when Mr Mooney's sample was diluted with water. 299For RailCorp to suggest through Dr Casolin that the dipstick test that was carried out on Mr Mooney's sample was an unreliable test (although it is accepted that it is not an accurate test) and should therefore not be given credence flies in the face of the subsequent successful testings that took place that day on other employees. No evidence was advanced to indicate that there was any subsequent check made of the strips used in the dipstick test or indeed if they were even kept rather than being disposed of to enable any checking to verify whether they were successful and accorded with the subsequent Lab test. 300The Board has also noted that the only handwritten comment that Ms Battacharjee did make on the Urine sample Collection checklist was "creatinine level checked for hydration", this appeared to be due to the fact that nowhere on that form was there any box to be ticked concerning the creatinine test carried out . She also indicated in oral evidence that if anything untoward about the colour was seen it would be also be noted. Though again this was on the basis of what she would do rather than actually recollecting the colour of Mr Mooney's sample. 301The Board makes it absolutely clear that it is not considered that Ms Battacharjee deliberately or intentionally tampered with Mr Mooney's sample by adding water to it which had the effect of diluting the sample. 302The Board considers that there are two definite possibilities that would have resulted in Mr Mooney's sample being diluted as a result of an inadvertent mistake on the part of Ms Battacharjee. 303The first possibility is that suggested by Mr Edghill that Ms Battacharjee spilt some of the sample in some way and topped it up with water from the tap in the single basin in the toilet area. That could literally have been accomplished in seconds and certainly less than the 30 seconds or so that on Mr Mooney's evidence she was alone with his sample when he went out the toilet area door. 304The second possibility is that because the container had too much urine in it (on Mr Mooney's evidence it was three-quarters to full up) rather than being half full as Ms Battacharjee indicated was requested by the procedures ("half filling the container") she attempted to tip some out into the basin, tipped too much and added water from the tap to bring it back to an appropriate level. 305The Board asked a number of questions of Ms Battacharjee as to how, on a practical basis, she was able to draw the urine from the container with the syringe and place it in the three vials when she only had two hands. She explained that she had a small box ordinary box with the vials in it, but went on to explain she would place the container "in the basin". This would suggest it was placed on the bottom of the basin over the drain hole and would in any event be immediately beneath the tap. The only evidence before the Board was that it was just a basin. If it was not a basin recessed in any way within a vanity unit or shelving such as generally is found in public female toilets at stations, as well as shopping centres surrounding stations (in the practical experience of the Board) then in the absence of any other practical aid such as a small table (or chair even) then the container of urine would have had to be placed somewhere, such as in the basin even when doing the dipstick test, given that she also held a box containing the vials. Certainly if the separation was done in the toilet area it could only be accomplished that way. 306The Board acknowledges that there was no direct evidence to support this possibility. However either of these two possibilities are far more probable, in the Board's considered view, than Mr Mooney diluting his sample in some way yet having that sample pass the two tests Ms Battacharjee then carried out. 307Ms Baxter submitted, and Ms Battacharjee maintained, that according to the procedures if a mistake was made the Donor would be asked to do the test again using a fresh kit. However the Board considers that taking all of the relevant circumstances into account this would have been unlikely to have happened. Ms Battacharjee was a relatively inexperienced new employee, she appeared nervous (on Mr Mooney's evidence), he was the first Donor to be tested and she had quite a number of employees yet to test, and she did not appear (on her evidence) to appreciate the significance of adding water to the sample. 308Having carefully considered all of the evidence the Board is not satisfied that RailCorp have discharged the requisite onus upon it and established that Mr Mooney diluted his sample in some way on the 11 October 2011 thus breached its Code and Policies. 309In considering whether the allegation against Mr Mooney is sustained, the Board has been very of the principles laid down in Briginshaw and as further explained in Neat. Given the seriousness of the allegation and the inherent unlikelihood of Mr Mooney committing such misconduct based on the evidence, and after taking into account all other relevant evidence, the Board considers that on the balance of probabilities Mr Mooney did not dilute his sample that day and that he had neither opportunity nor motive to do so. 310The Board therefore makes the following formal findings based on the evidence: Mr Mooney did not attend work on the 11 October 2011 with drugs in his system contrary to Railcorp's Code of Conduct and Drug and Alcohol Policy and does not take illicit drugs; Mr Mooney did not tamper with his urine sample on 11 October 2011 and dilute it with water; The urine sample he provided to the Laverty Pathology Collector, Ms Battacharjee on 11 October 2011 was his own urine and voided from his body in the toilet cubicle while she was present in the toilet area; Any dilution with water of Mr Mooney's sample took place after he had given the container to Ms Battacharjee and he did not have access or touch that container again; Mr Mooney's urine sample passed the two tests carried out by Ms Battacharjee (temperature and creatinine) because it was his own urine; Ms Battacharjee separated the urine from the sample container provided by Mr Mooney and placed it in the three vials in Mr Mooney's presence and that procedure took place on the first aid room and not in the toilet area; Ms Battacharjee was alone for a very short period of time with Mr Mooney's sample in the toilet area after he had proceeded out the door and into the corridor and the period of time was sufficient to enable water to have been added to the container from the tap in the basisn; The most likely and probable explanation for the dilution of Mr Mooney's urine sample was that Ms Battacharjee made a genuine and unintended mistake by either spilling some of the sample and topping it up, or by seeking to reduce the amount of urine in the sample container attempted to tip some out into the basin, tipped too much and consequently replaced some of that urine with water from the tap; RailCorp has not discharged the requisite onus upon it in this appeal; Mr Mooney did not commit the misconduct alleged against him by RailCorp. 311The Board having found that the allegation against Mr Mooney is not sustained also finds that the disciplinary punishment of dismissal in the circumstances is entirely inappropriate and unwarranted. 312The Board considers that in all the circumstances Mr Mooney's appeal should be allowed and reinstatement to his former position as a Train Driver as from the date of his dismissal and with full continuity is entirely appropriate and intends to issue orders to that effect. There will clearly be a need for Mr Mooney to undertake some necessary retraining as a consequence of his absence from driving duties to enable him to resume his position as a Train Driver. Order(s) 313The Board makes the following orders in relation to the appeal (TAB12/185): 1.The appeal is allowed. 2.The decision of RailCorp to dismiss Mr Mooney with effect from 21 March 2012 is set aside and he is reinstated to the position of Train Driver, Hornsby Crewing, without loss of continuity. 3.RailCorp is to make a payment to Mr Mooney within 14 days of the date of these orders of the amount of pay, less the amount of the 3 (three) weeks paid in lieu of notice, he would have received as a Train Driver to the date of these orders but for RailCorp's decision to dismiss him. 4.Mr Mooney is to undertake such further necessary re-training as shall be provided by RailCorp to enable him to resume his position as a Train Driver. Such training to be arranged as soon as is practicable. 5.These orders take effect on and from 13 September 2012. Elizabeth Bishop 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: 14 September 2012