Transport Appeal Boards New South Wales Medium Neutral Citation: Zuiderwyck v RailCorp [2012] NSWTAB 32 Hearing dates: 6 and 14 August 2012 Decision date: 04 October 2012 Before: Bishop C (Board) Decision: Appeal disallowed Catchwords: PUBLIC SERVICE - discipline - rail employee - breaches of Code of Conduct - breaches of various procedures arising from two separate incidents - serious safety issues - guilty plea - harshness of penalty raised - reinstatement sought with back pay. HELD - safety breaches serious - penalty appropriate notwithstanding issues raised re harshness - appeal disallowed. Legislation Cited: Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney & Illawarra Area Health Service [2007] NSWIRComm 164 Stevens v State Transit Authority [2012] NSWTAB 22 Tauia v RailCorp [2011] NSWTAB 27 Category: Principal judgment Parties: Neil Zuiderwyk (Appellant) Rail Corporation of New South Wales (Respondent) Representation: Mr B Edghill Rail,Tram and Bus Union NSW (Appellant) Ms A Baxter Rail Corporation of NSW (Respondent) File Number(s): TAB 209 of 2012 DECISION Introduction 1Mr Zuiderwyck commenced employment with RailCorp on 1 June 1983 in the position of Junior Station Assistant. He subsequently completed training as a Guard in 1988, and was a Train Guard at Wollongong until his dismissal by RailCorp. 2On 9 May 2012, Mr Zuiderwyck was notified by RailCorp that he was dismissed for breaches of the RailCorp Code of Conduct (the "Code"). 3On 10 May 2011, Mr Zuiderwyck lodged an appeal in respect of his dismissal. On the Notice of Appeal he indicated a plea of "Guilty". 4The matter was listed for disciplinary conciliation before Commissioner Ritchie on 12 June 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 6 August 2012 with a further day required on the 14 August 2012. 5RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. Issue(s) 6Mr Zuiderwyck pleaded guilty to the charges against him and sought that the penalty be set aside. It is therefore the Board's task to determine the appropriate penalty to be imposed in all the relevant circumstances. 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. 8On 19 May 2011, Mr Matthew Manchester, RailCorp Project Manager, Asset Operations Group, was travelling on a train service between Waterfall and Bondi Junction. When the train reached Oatley Station, it overshot the platform by four cars before coming to a stop. Mr Manchester was travelling in one of the cars which was off the platform. He observed the doors being opened, which gave the passengers "exposure" to the tracks. 9When Mr Manchester arrived at work he checked the RailCorp Incident Information Management System and noted that the incident had not been reported so he then reported it to Mr Pat Duffield, RailCorp Regional Crewing Manager, Sector 1. In turn, Mr Duffield reported the incident to Simon Tabucala, RailCorp Senior Operations Standards Manager (SOSM), who identified Mr Zuiderwyck as the Train Guard on the train. Mr Zuiderwyck and the Train Driver in question were both taken off roster for assessment of the incident. 10On 17 June 2011, Mr Wayne Simpson, RailCorp Customer Service Manager (Area 3, Sector 1), was travelling in his car on Bellambi Lane, Bellambi, when he stopped at the barriers of the Bellambi rail crossing due to an oncoming train. Mr Simpson saw a male person wearing a CityRail uniform and carrying a RailCorp backpack run from behind his car into the rail corridor and onto the running line. Mr Simpson sounded his horn at the male person, who turned and acknowledged him by making eye contact. The male then ran up onto the platform at Bellambi Station and Mr Simpson lost sight of him. 11Mr Simpson then contacted Bellambi Station and requested that a 'Network Notification Incident' (NNI) be submitted. He also reported the matter to the Wollongong Depot Manager, Suzanne Strike. Ms Strike viewed CCTV footage of the incident and identified Mr Zuiderwyck as the male who had run onto the running line. 12Both matters were referred to RailCorp's Investigations Unit (the RIU) for investigation. Mr Michael Crimmins, an Investigator with the RIU conducted a disciplinary investigation obtaining statements from Mr Manchester, Mr Duffield, Mr Tabucala, Mr Simpson, Ms Strike, and Senior Operations Standards Manager Michael Jacobs (Exhibit 1-13, 15, 19, 30, 17 & 31, and 1-A24). 13On 9 August 2011, Mr Crimmins forwarded a letter to Mr Zuiderwyck notifying him of the following allegations that he had breached the RailCorp Code of Conduct and invited him to provide a written response within fourteen (14) days (Exhibit 1-A3): Allegation 1 On Thursday 19 May 2011, while acting in his capacity as a train guard on train service 316D between Waterfall and Central, Mr Zuiderwyk failed to carry out his duties safely and carefully and/or failed to follow safety procedures, rules, and guidelines or instructions that apply to his work. The particulars of the allegation are: a)As the train approached Platform 1, Oatley Railway Station, you failed, as far as practical, to watch the train arrive at the platform. b)The train was scheduled to stop at Oatley Railway Station. You failed to make sure that the train operated according to the timetable or stopping patterns. c)The train overshot the platform by four (4) carriages. You failed to ensure that the train service had safely stopped at the platform before opening/ releasing the car doors and placing passenger safety at risk. d)After train service 316D had failed to make its scheduled stop at Oatley Railway Station, you failed to keep passengers informed by not making an announcement about the delay and reason for it before the train continued on to the next scheduled stop. e)You then failed to make any endeavour to ensure that the incident was reported to a Network Control Officer. Allegation 2 On 17 June 2011, at the Bellambi Crossing adjacent to the Bellambi Railway Station, Mr Zuiderwyk failed to take care with his own safety and the safety of other people by entering the Danger Zone and crossing railway lines to gain access to the station platform to board a CityRail service travelling on the down line. The particulars of the allegation are: a)At or about 0655hrs on Friday 17 June 2011, you entered the Danger Zone while the boom gates and warning lights and bells were operating. b)You entered the Danger Zone without wearing approved high-visibility clothing. c)You entered the Danger Zone when there was no easily-reached safe place available. d)You entered the Danger Zone when there was a practicable alternative e)Before entering the Danger Zone, you failed to frequently look in both directions to check for approaching rail traffic. 14 Mr Zuiderwyck provided a response to the allegations (Exhibit1-A6) and attended a disciplinary interview with Mr Crimmins on 7 September 2011 (Exhibit 1-A5). 15Mr Crimmins concluded that the allegations against Mr Zuiderwyck were substantiated and on 13 March 2012 forwarded his Investigation Report to the Disciplinary Review Panel (DRP) for consideration (Exhibit1-A). The DRP reviewed the Investigation Report on 23 March 2012 and made a preliminary recommendation that Mr Zuiderwyck should be dismissed. On 26 March 2012, Mr Duffield, Acting General Manager Customer Service Sector 1, wrote to Mr Zuiderwyck advising him of this preliminary view and giving him fourteen days to make submissions in regard to penalty and to submit any further information or material that he wished wish to have taken into account (Exhibit 1-B). 16On 19 April 2012, Mr Zuiderwyck provided a written response (Exhibit 1-C) which was reviewed by Mr Crimmins on 30 April 2012 (Exhbit 1-D). On 4 May 2012 the DRP considered Mr Zuiderwyck's response and confirmed their recommendation of dismissal. On 8 May 2012, Mr Duffield, General Manager Customer Service Sector 1, signed a letter confirming Mr Zuiderwyck's dismissal effective 9 May 2012. He was paid five (5) weeks salary in lieu of notice (Exhibit 1-E). Evidence on behalf of the Respondent 17RailCorp's evidence before the Board was contained in the Investigation Report (Exhibit 1-2A) and additional attachments (Exhibit 1B-F) which included, inter alia, copies of the initial L5 Investigation Reports, the various letters exchanged concerning the Allegations; the transcript of the Disciplinary Record of Interview; relevant CCTV footage, screenshots and timelines; Mr Zuiderwyck's Ellipse Personnel History Report, TCTime Employee Summary, copies of relevant Train Working Procedures (TWP 156 &100), relevant extracts of Network Rules etc; and Statements from the following RailCorp employees: Matthew Manchester...Project Manager Asset Operations Group (Exhibit1-2A13), Patrick Duffield............Regional Crew Manager (Exhibit 1-2A15), Suzanne Strike............Wollongong Depot Manager (Exhibits 1-2A17 & 31), Simon Tabucala..........Senior Operations Standards Manager (Exhibit1-2A19), Wayne Simpson..........Customer Service Manager Area 3, Sector 1 (Exhibit 1-2A30). Michael Jacobs............Senior Operations Standards Manager, Wollongong (Exhibit 1-2A24). 18Mr Manchester was not required for cross examination. 19Mr Manchester was the Senior RailCorp employee who was travelling in the third car of the train and reported the incident at Oatley Station the subject of the first allegation. He stated that a short time after the train became stationary he noted that the platform side doors were opened, including the cars which he believed gave passengers exposure to the tracks, and during this time he did not hear any warning announcement from the Guard as to what was occurring. He also noted that the dwell time on the platform was longer than would normally be expected presumably to allow passengers to board who were not in direct proximity to the remaining four cars at the platform. 20He stated that in his past experience gained in various positions with RailCorp he had knowledge of the operating rules and procedures and what he observed that Oatley Station did not appear to be consistent with the expected outcomes for a platform overrun. 21When he arrived at work he checked the RailCorp Incident Information Management System (IIMS) to ascertain whether the incident had been reported. It had not, so he then did so by email to Mr Duffield (Crew Area Manager). He did this because he was concerned that the way the overrun was managed by the train crew was not consistent with RailCorp's operating rules and procedures. He then had no further involvement in the matter. 22Mr Duffield stated that after receiving the information from Mr Manchester and confirming it as correct, he caused a Level 5 Investigation to be conducted by Simon Tabulcala, assisted by Trainee OSM Jamie Kerrison, on both the Driver and Mr Zuiderwyck, and as a result of their recommendations he then completed the procedures in the 'Just Culture Framework' and in doing so identified a number of breaches of the Code and Network Rules and Procedures and the Train Operations Manual. He discussed the matter with the General Manager Customer Service Sector 1 (Ms Judith Sturman) and referred the matter to the RIU. 23Mr Duffield agreed with Mr Zuiderwyck's evidence that most Guards would wait for the train to slow before they got up to open the door. At this particular time the Guard would not actually open the door until they started onto the platform as they watched the train in. The rule had changed in May 2012 and the Guard now waits until the train stops before opening the door. This meant that the Guard no longer had to watch the train arrive, but before they opened the doors they were supposed to observe that all the doors were on the platform before they opened them. At the time of the incident with Mr Zuiderwyck, he confirmed that it was as they arrived on the platform that the Guard would open the Guard's door. 24He confirmed that stations with "short platforms" were advertised as such with pocket timetables and the Guard made an announcement prior to arriving to say it was a short platform and what cars passengers needed to be in. Oatley was not a "short platform" station, it was designed to fit 8 cars. 25Mr Duffield also indicated that 'overshoots' and 'Signals Passed in Danger' (SPADS) were not automatically referred to the RIU for investigation. His role was to measure such incidents against the 'Just Culture Framework' and the outcome of that, together with discussion with the General Manager, would guide the outcome. 26He went on to explain the 'Just Culture Framework' which is a standard form to be completed concerning investigation/procedures/risks/outcomes/ etc and with boxes to be ticked. At the bottom of the form were listed three fields with Yes or No options to be circled under 'Behaviours (validate)':- Human error (accept) At-risk behaviour (coach) Reckless (consider remedial or disciplinary action) 27There was extensive cross examination of Mr Duffield about the 'Just Culture Framework' and the expectations on Mr Zuiderwyck as to what he should have done. He also indicated that the decision as to whether to set back the train or continue to the next station would be one made by Network Control upon being advised of such a situation by the train crew who would then wait for instruction. 28Ms Strike was advised by Mr Duffield of the incident at Oatley Station and was told the Driver and Guard would have to be removed from working duties immediately and steps taken to organise a debrief of them both. She stated that when Mr Zuiderwyck came to her office to discuss the overshoot, during the conversation he said to her that he was "unlucky" because the only reason he "got busted" was that at the time of the overshoot a person from safety was on the train and reported the matter. He went on to say "you know how it is, I was in auto pilot". He admitted to her that he failed to check the location of the train when it stopped at Oatley Station prior to him opening the doors. She reported this conversation to Mr Ricky Anderson, Deputy Regional Crewing Manager by email that same day. 29Ms Strike also commented on the scenario raised by Mr Zuiderwyck as to following the practice applicable to "short platforms" and indicated that he had mentioned that to her a number of times and she had told him that Oatley was in a suburban area with no advertising about "short platforms", there was no risk assessment and passengers were not used to the possibility of a door opening and allowing them access to a danger zone. 30Mr Tabucala was assigned to perform the initial requisite Level 5 Investigation of the incident and subsequently questioned both the Driver and Mr Zuiderwyck independently on 25 May 2011. He reported the following questions and responses in relation to Mr Zuiderwyck: "Why did you open the passenger doors Guard?" "I inadvertently got up and opened the passenger doors." "Did you watch your train onto the platform at Oatley Station?" "I'm not sure if I watched my train on approach." "Did you advise Network control after the incident?" "I did not want to get the driver into trouble and thought we performed everything possible ensuring passengers were safe." 31Prior to interviewing the two men Mr Tabucala had also viewed the CCTV footage from Oatley Station showing the train overshooting the platform by four cars. He noted that "the guard did not watch Run316D onto Platform One, Oatley and he did not open the crew door until the train was stationary. The footage shows that the passenger doors opened before the crew door opened." 32Mr Tabucala agreed in cross examination, and on viewing the CCTV footage during the hearing, that the crew door did open before the passenger doors. 33He noted in both his Report and his statement that the crew advised of the following safety actions they took at the time of the incident: The Driver and the Guard both visually checked passengers attempting to alight to the train track. Both ensured passenger safety after the doors had been opened by communicating the internal intercom. 34He confirmed that there was no evidence available to contradict the claim of the Driver and Guard that they conducted a visual check. 35He made the following findings in relation to the actions of the crew (the same for both Driver and Mr Zuiderwyck) involved in the incident: The guard's actions in the incident were a failure to follow a procedural rule; After the Level 5 Investigation Report had been reviewed, the Just Culture Framework was applied in regard to communication and the this overshoot and it was found that the guard's behaviour to be reckless. 36He confirmed that it was not his role to determine whether the actions of the Driver and Guard were reckless. 37After providing his Report Mr Tabucala had no further involvement in the matter. 38Mr Jacobs is a Senior Operations Standard Manager at Wollongong Depot, a position held since 2009. He was formerly a Train Guard for 3 years and is very familiar with the various procedures and rules relating to a Train Guard's responsibilities. He stated the substance of the procedures relevant to the incident, and also gave evidence in some detail as to the correct procedures (step by step) which should be followed by a Guard on approaching a station. 39He had no involvement in the in the investigation of the overshoot of the platform. 40Mr Jacobs was also taken through Mr Zuiderwyck's statement in some detail. 41He confirmed that the procedures described by Mr Zuiderwyck (sitting down between stations and waiting until he could "feel" the train braking or slowing) was an acceptable procedure and that as a Guard you would have a feel for the train and quite often know the braking because the emergency braking application was quite different to the smooth attempt to come to a station and you could always feel the difference. 42He agreed that there was a very short period of time between the Guards' crew door passing the fence at the approach end of the platform and the point at which the train became stationary. 43He also commented on the relevant use of the emergency brake and the occasion on which it would be appropriate to use the emergency two bells. 44He also went on to say, and confirm, that that there were other things that you could be doing apart from waiting to feel the brakes, such as being proactive by checking landmarks, checking your watch and knowing what time you're supposed to be at the station. 45He also stated the procedures to be followed in relation to "short platforms", the absence of such on suburban routes, the type of situations in which that arises and the proper actions to be taken (the requirements in relation to announcements etc.) and the risk assessment that had been made in relation to such "short stations" and what that involved. 46Mr Jacobs stated that in Mr Zuiderwyck's situation he should have identified where he was on the platform, and once he realised that half the train wasn't on the platform he should have made contact with the Driver (or vice versa) and asked the Driver if they were going to set back and get assurance from the Driver. The Driver then has to contact the Signaller who has to get authorisation to let the Driver set back and the Guard has to go to the rear of the train to do the set back procedure (giving detail about such a procedure) but it would only be done at the behest of Network Control. 47He confirmed that the incident should have been reported to the local Network Control Officer. They had a 'no blame policy' so that safety incidents were reported immediately. 48He also commented on the visual checking outlined by Mr Zuiderwyck and indicated that it was not a procedure they had and that it seemed to be just lucky that no-one in the overshot portion of the train wanted to get off because depending on the time you could have 100 people wanting to get off the train, with fifty in the back portion attempting to alight. 49The only involvement of Mr Jacobs in the second allegation was to view the relevant CCTV footage and confirm that Mr Zuiderwyck was the person involved. 50Whilst there was extensive cross examination of Mr Jacobs and questions from the Board there was no real departure from his essential evidence as set out above. 51Mr Simpson was the Senior RailCorp employee who reported the incident at Bellambi Station on 17 June 2011, the subject of the second allegation. 52He stated that as the male person ran across the front of his vehicle to cross the lines he sounded his car horn a number of times and held his RailCorp identification tag up to the windscreen and also made a hand gesture to the person indicating to him not to proceed across the tracks. Upon doing this the male person turned in his direction and acknowledged him by making eye contact and then continued across the rail lines. He watched the male person run across the rail lines up onto the platform and then lost sight of him as he ran behind the train and he assumed that he was catching that service. 53He immediately telephoned the Bellambi Station and spoke to the CSA to find out if the male person had gone to the station or caught the train and was told that no-one had come to the station so he assumed he had caught that service. He asked the CSA to submit a NIN in relation to the incident and then contacted Ms Strike the Wollongong Depot Manager and informed her what he had witnessed. That was his last involvement in the matter. 54He went on to state that the "at risk behaviour" exhibited by the CityRail employee went against RailCorp's ethic and culture and he considered the behaviour to be a serious breach of safety procedures. 55He agreed that the backpack Mr Zuiderwyck was wearing was high visibility but said it was not adequate clothing for accessing the rail corridor. 56His intention in holding up his identification tag was to reinforce that he was an employee of RailCorp, also attract their attention, and that he was from authority, and please do not continue. 57Mr Simpson was also shown the CCTV footage from Bellambi Station and explained how the gates worked and what pedestrian access there was to the platform and what the footage showed concerning the incident. He confirmed the pedestrian gate was closed at the time he saw the individual cross the line. 58He indicated that he made the report because they had a duty of care in their work environment to ensure the safety of their individuals. There were behaviours that were unacceptable and they had to reinforce to the travelling public, to anyone watching, schoolchildren and the like that as an individual not to put themselves at risk due to the consequences of being hit by a train. 59He maintained in cross examination that Mr Zuiderwyck was about three metres away from his car (and on the second rail) when he turned and looked in his direction and acknowledged him by looking him in the eye and, what was not shown on the CCTV, gave a hand gesture - raising his hand. This was also after he had honked his horn, and when he had honked his horn the individual had not yet crossed the running line. 60Ms Strike stated the steps she took after receiving the call from Mr Simpson including reviewing the relevant CCTV footage from Bellambi Station to identify the person involved as Mr Zuiderwyuck and she then referred the matter on to Mr Duffield for further investigation. 61Ms Strike also indicated that it was a condition of employment under the Code that when an employee entered the Danger Zone they must have their PPE on. The backpack Mr Zuiderwyck was wearing was not PPE and it a clear violation of the Code. 62Ms Strike confirmed that since coming to Wollongong Depot in 2009 she had been required to manage Mr Zuiderwyck because of his attendance, not being on time and not being contactable when at work. She had conversations with him about his need to comply and what was expected of him in his duties. Evidence on behalf of the Appelllant 63In addition to the evidence of Mr Zuiderwyck (Exhibit 3) the RTBU also called the following witnesses: Christopher Todd.....RailCorp Train Driver (Exhibit 3-E), and Daniel Brindell..........RailCorp Train Guard (Exhibit 3-I). 64Mr Zuiderwyck's evidence was that part of a Guard's job was to 'watch trains' into the platform, which meant opening the Guard's compartment door and standing in the doorway as the train was coming to a stop on the platform. You were only meant to open the door as the train was slowing to a stop on the platform, otherwise it would be dangerous to open the door and stand in the doorway. He would generally sit down between stations while the train was in motion and then get up when he felt the train braking or slowing as it came into the platform. Often there would only be two minutes between stations so a Guard would be up and down to the compartment door quite regularly on a trip, and his practice, based on his many years experience, was to wait until he could feel the train braking or slowing and then get up from his seat and go to the compartment door to watch the train in. 65He also stated that he was aware that RailCorp had since changed the rule about Guards watching trains into platforms and it was his understanding that they do not want Guards watching trains into the platform as they believe it is unsafe. 66He agreed that the relevant direction he was under was General Order 17 and that required that he was only meant to open his cabin door after the train had passed the fence at the beginning of the platform and that he was required to watch the train arrive at the platform in accordance with TWP 156. 67He maintained it was normal practice that the indication was the train slowing down, and you wouldn't get up if the Driver wasn't braking. The only other indication was landmarks, and if it was dark you didn't have that indication. He conceded that it was "possibly" light enough at 6.40 am that day to have seen landmarks and he hadn't watched the train to the station because the train braked late and he had not yet got up. 68He indicated that the train had started at Wollongong that day at around 3 or 4 am and at that time it was dark and he would have been using the process of hearing to slow down rather than looking at landmarks. It was all stations to Thirroul (with a break), all stations to Waterfall (with another break) and then all stations to Sydney. 69Mr Zuiderwyck stated that on this occasion, the train must have braked or slowed late and he recalled that he was sitting down when he felt the train start to brake, got up from his seat, went to the compartment door, opened it and by the time he did so the train was already stopped. He had intended to watch the train into the platform but was too late to open the cabin door as the train braked late and he had no control over when the train slowed coming into the platform. He realised the train overshot the platform by four carriages when he looked out and opened the doors to let the passengers on who were waiting on the platform. 70He did not have control over the stopping patterns of the train, unless he was to apply the emergency brakes or give the Driver 'two bells' and as far as he recalled, the train did operate according to timetable and stopping patterns. 71He stated that as soon as he opened the doors he regretted it but it all happened very quickly. He immediately picked up the train phone in the Guards compartment to talk to the Driver who looked in one direction while he checked the platform and looked in the other direction. Once they were confident that nobody had jumped off the train and nobody would be caught in the doors, he closed the train doors and when he was confident that it was safe to depart, he gave the driver a bell to indicate it was safe to proceed and the train departed. 72He maintained that he had not told Ms Strike that he didn't look at his location before he opened the doors. 73He maintained that it was not unusual on these services for train doors to be open when off the platform and that at certain stations this is always the case due to the length of the platform or stopping position of the train. On some trains the different carriage doors could not be isolated so all the doors opened at once. He and the Driver followed the process usually followed in these occasions except he did not make an announcement. The correct process was for the Guard to make an announcement warning passengers before the doors open. 74There was extensive cross examination of Mr Zuiderwyck. 75He agreed that not making an announcement was a mistake; that it was his job to ensure passenger safety; accepted that he should have made an announcement to warn passengers; made a mistake in opening the doors too early; and was concentrating on watching the train and speaking to the Driver. He also agreed that he should have immediately reported the incident to Network Control and then done as instructed. Notwithstanding the lack of an announcement, he felt they had resolved the situation before the train departed. He agreed that he failed to make an announcement to keep passengers informed about the delay but did not believe the train was delayed and it all happened over a relatively short period of time at Oatley Station. He also agreed that he failed to ensure the incident was reported immediately to a Network Controller. He had intended to tell the OSM when he arrived at Wollongong at the end of his shift. The whole of his career that was how they did it, reporting an incident to the boss, having a discussion and then he would tell you what to do. The OSM met him on his return to Wollongong advising that he was removed from safe working and he then told the OSM what happened. 76He also indicated that when he realised the train was not slowing enough when approaching the platform, it was basically too late to warn the Driver. 77Mr Zuiderwyck accepted that the incident could have been handled better, but at the time believed that he and the Driver handled the incident they were faced with in a way that ensured nobody would get hurt. 78Mr Zuiderwyck stated that at the time of the second incident he was off Guard duties and working at Wollongong as a result of the first incident. He had intended to drive from his home, near Bellambi Station to Wollongong to work that morning. He started to have car troubles and did not think the car could be driven to Wollongong so he drove to Bellambi Station to catch a train. He was very concerned about being late because his Manager, Suzanne Strike, had been very critical of him and he did not want to get in trouble for being late to work. He parked his car, headed toward the platform and the gate to access the platform was closed because there was a train (the one he needed to catch) on the platform. He then ran around the boom gates to access the platform and entered the Danger Zone behind the stopped train but did not believe he was in danger due to his vast experience on, and around, the track. He believed he looked in the direction of approaching rail traffic before he entered the Danger Zone. He agreed this was a mistake and not a risk he should have taken. He did not have high-visibility clothing on, but did have his high-visibility backpack on. 79He stated that he had not done this before; his actions were completely out of character; agreed that he made a mistake, and would not do this again. He also acknowledged that it was a foolish thing to do, but did so because he felt he could not afford to be late for work. He also agreed that he should have waited for the gate to open and caught the next train to work. 80Mr Zuiderwyck also indicated that he lived about 100 metres from Bellambi Station and had gone across the Station his whole life and had a lot of family and friends living in the area. He lived on this side and the school was on the other side, so all his school life he had crossed the tracks. When he left school he had had actually worked at the Station and operated the boom gates manually. 81When he heard the car horn he turned around and thought that it was his brother, or a friend, or someone, tooting him to say they'd seen him. 82When he was asked if he thought that he was sending a very bad example to the person he thought was a friend he maintained that "it was a rail employee on railway land, it's always been okay until recent times, railway employees are allowed on railway property". He also indicated that with his knowledge he knew it was safe and there was a safe place created by a stopped train because there was a two signal protection behind it 83Mr Zuiderwyck stated that from 20 May 2011 until 10 May 2012 he spent his time at work either sitting in the meal room or running errands. It was very demoralising to be in this position for a year. 84Since his dismissal he had registered with the Salvation Army job agency but had not found a job and had recently tried to start his own business however he had only made a few hundred dollars with no regular work. He did not currently have a job to support himself and his family and did not yet qualify for Centrelink Benefits. 85He had joined the railways straight out of school in 1983, did not have any other qualifications or employment skills to fall back on and his entire working life has been with the railways. He believed he had demonstrated during this time that he was a competent and safe employee, had a long history of helping people, which is why he enjoyed being a Guard. He also attached a number of references and commendations to his statement. 86Mr Todd gave evidence about an undershoot at Hurstville Station referred to in the evidence of Mr Zuiderwyck. The Board considers that whole issue to be of insufficient relevance to the facts of this matter to require further consideration. 87Mr Brindell's evidence generally confirmed the practices referred to by Mr Zuiderwyck in his evidence (in relation to the first allegation). He also agreed as to the procedures to be followed as set out in the relevant RailCorp documentation. Submissions on behalf of the Respondent 88Ms Robinson on behalf or RailCorp made oral submissions in addition to the written submissions as filed (Exhibit 1) and in doing so outlined the relevant background and chronology of events (as set out above), drew the Board's attention to the relevant extracts of the Code, Operating Specific Procedures, Train Working Procedures and Special Train Notices as set out in Mr Crimmins' Investigation Report. 89The relevant evidence before the Board was also referred to and briefly summarised. It was submitted that the circumstances of both allegations had been relied upon and taken into account when considering the penalty of dismissal. 90It was submitted that Mr Zuiderwyck had been employed for over 24 years as a Train Guard, which was rail safety work with a high degree of visibility to the public and responsibility for public safety. His actions in relation to the first allegation amounted to a failure to take proper care for public safety, by opening the doors of the train after it overshot the platform and failing to make any announcements to the passengers about the incident. He also failed to fulfil his duties as a Guard to report the incident. His actions in relation to the second allegation were a serious breach which placed his own safety at risk, occurred in a public place and in view of the general public, thereby setting a bad and dangerous example to the general public. He had pleaded guilty to both allegations. 91It was submitted that despite pleading guilty Mr Zuiderwyk's statement and his oral evidence contained excuses in relation to both allegations, showed he had not taken full responsibility for his actions but sought to justify them by referring to other circumstances in which he believed his actions were okay. 92Ms Robinson rejected the reliance placed on the cases cited by the RTBU and reminded the Board that Mr Zuiderwyck did not have an unblemished record as shown by his personnel history. 93RailCorp had followed the Discipline Policy and there were no procedural fairness issues arising as Mr Zuiderwyk had been afforded due process and the ability to respond to the allegations. 94It was submitted that taking all of these factors into consideration the penalty of dismissal was appropriate and the Board should not alter the decision of RailCorp to dismiss Mr Zuiderwyck. Submissions on behalf of the Appellant 95Mr Edghill on behalf of the RTBU also made oral submissions expanding in some detail on the written submissions as filed (Exhibit 4) and in doing so summarised the relevant evidence relied upon. 96It was submitted that Mr Zuiderwyk accepted that he could have handled the incident better on the day and admitted he made a mistake in not making an announcement to warn passengers before he opened the passenger doors. However he did take care to ensure that the incident was responded to safely by communicating with the Driver and checking the train to ensure that nobody was in danger before the doors were closed and the train departed. While he admitted to failings in the procedures followed, his actions did ensure that passengers were able to board and disembark the train at Oatley Station without any incident or major delay. 97In relation to the second incident Mr Zuiderwyk accepted he made a mistake and explained that he believed he did take care to ensure his safety and felt he had to cross the tracks to make the train to ensure he was not late for work, being concerned he would get into trouble if he was late for work. He had also explained that this type of behaviour was a one-off incident and not something that he would repeat. 98It was submitted that the penalty of dismissal of Mr Zuiderwyck was too harsh in the following circumstances: He had worked for RailCorp and its predecessors for 29 years and had a good employment record. The evidence supported his explanation that these types of safety mistakes were isolated incidents. He should be considered a dedicated, competent and professional employee, as evidenced by the many references, compliments and awards attached to his statement and someone who clearly somebody took his job and his safety responsibilities seriously and could be trusted to work safely if returned to work. He had admitted to the mistakes and was open and honest throughout RailCorp's investigation. After being removed from safety work after the first incident he continued to work at RailCorp for a further 12 months before RailCorp made the decision to dismiss him. During this time he was in the demoralising position of spending most of his working time sitting in the meal room or running errands for other employees and therefore punished for these mistakes by RailCorp long before they made the decision to dismiss him. He had actively pursued new employment since his dismissal, had registered with a job agency but been unsuccessful in getting work. He has no skills or qualifications outside of the railways, having joined straight out of school. 99On the issue of harshness the RTBU also referred the Board to the following decisions: New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney & Illawarra Area Health Service [2007] NSWIRComm 164, Stevens v State Transit Authority [2012] NSWTAB 22 and Tauia v RailCorp [2011] NSWTAB 27. 100The RTBU submitted that Mr Zuiderwyk should be reinstated to his former position as a Guard at Wollongong with full back pay and continuity of service. Findings 101This is an appeal under clause 43 of the Transport Administration (Staff) Regulation 2005 against RailCorp's decision to impose the disciplinary punishment of dismissal on Mr Zuiderwyk. 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. 102Mr Zuiderwyk has pleaded guilty to the allegations against him. The Board's function in this matter is therefore to determine whether the disciplinary punishment imposed by RailCorp in relation to such allegations is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. 103The 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. 104The Board has very carefully considered the evidence and submissions of the parties and viewed the relevant CCTV footage. That viewing was conducted through the use of a computer and, as the Board has found in other disciplinary matters before the Board, it enables a much clearer and closer view of the images to be gained than that afforded on a large screen and at some distance in the court room. 105It is the Board's view that the allegations against Mr Zuiderwyck raise very serious breaches of not only the Code but also accepted and required RailCorp procedures concerning critical safety issues for both the travelling public and RailCorp employees. 106The CCTV footage of the first incident quite clearly shows that Mr Zuiderwyck opened the crew door and can be clearly seen in the doorway before he opened the carriage doors, he then goes inside as passengers commence boarding the train and does not emerge until the last two persons are boarding. While he said that he and the Driver visually checked that no-one was getting off, the checking by Mr Zuiderwyck must have been very fleeting and did not allow for any person exiting late as can happen during the course of others boarding. 107Regardless of whether or not he did conduct such a visual check the fact remains that he should never have opened the doors in the first place. He was obviously not watching the train in and indeed the Board wonders whether he even took notice of where he was in relation to the platform when he did open the carriage doors, if he had he would surely have realised that the train had seriously overshot the platform - His crew cabin door was virtually at the end of the platform near the rails. 108While the Board agrees that when the train commenced its service at Wollongong Station earlier that morning it would have been dark and thus reliance on landmarks would not have been as useful, the Board would still consider that once suburban areas are reached that even in darkness there would be lighted suburban streets (and possibly shops/buildings) adjacent to the rail corridor, particularly on approaches to stations that would be readily identifiable in the dark. In any even there was also the time the train was due to arrive at Oatley Station which should have been noted and hence the likely time for slowing down on the approach. 109However it is clear from the CCTV footage that there was sufficient early daylight for landmarks to have been clearly visible on approach to Oatley Station and they should have been observed by Mr Zuiderwyck. 110The only inescapable conclusion that can be reached in the Board's view is that Mr Zuiderwyck was indeed on "autopilot" as he told Ms Strike (her evidence on this is confirmed by her contemporaneous email to Mr Anderson). 111The egregious error committed by Mr Zuiderwyck was compounded by not only the lack of any announcement to passengers warning them about open doors onto the rail lines, but also the failure to contact Network Control. The doors should never have been opened and Network Control should have been contacted for instruction. While Mr Zuiderwyck maintained he had no control over the Driver and the braking of the train he did have control over the opening of the carriage doors and responsibility for making announcements to passengers and also an equal responsibility with the Driver to contact Network Control. 112Mr Zuiderwyck maintained he did not want to get the Driver into trouble but that in itself raises a safety concern. Does this mean that if he observed an unsafe act by a Driver he would not take appropriate action if it was such as to require reporting? 113The Board accepts the submissions of RailCorp that Mr Zuiderwyck does not appear to have accepted full responsibility for his actions and notwithstanding his guilty plea, in both his written and oral evidence sought to provide excuses for his actions. This extended to only conceding that it was "possible" that there was sufficient daylight at 6.46 am on 19 May to have been able to sight landmarks. The CCTV footage quite shows that early daylight had come and visibility was very good. Mr Zuiderwyck was simply inattentive and careless, and that in the end, together with his actions in opening the doors and lack of any announcement, justified the categorisation of his actions as "reckless". 114As the CCTV footage shows (the ramp up to the platform) someone does come and stand at the open door of carriage 4 which was off the station. It is only sheer good fortune that no-one in fact did seek to alight from the train or that this was not an incident which occurred at a Station further up the line (such as Hurstville, Kogarah or Rockdale) where passengers would have been alighting to go to work/school. 115The Board also does not accept Mr Zuiderwyck's attempts to rely on the common occurrence of "short stations". The Board accepts the evidence of RailCorp that this only occurs on the Illawarra section of the line (beyond Waterfall) in relation to Mr Zuiderwyck and that there are well established and well known procedures in place that are followed. Oatley Station is a suburban location and designed to accommodate an 8 carriage train and that is the expectation of the travelling public. 116While it is commendable that appropriate steps to ensure passenger safety were taken after the event that does not balance out or negate the very serious safety/procedural breaches that occurred before the event. 117The second incident can also be viewed in the same serious light. Simply because Mr Zuiderwyk is a local long term resident at Bellambi, went to school there, worked at the Station, did not excuse his actions. The message his actions sends to the public, particularly children (and indeed bicycle riders who could have also walked around the boom gates and crossed the tracks entirely) is of extreme concern. 118The Board accepts that Mr Zuiderwyck may not have been acknowledging Mr Simpson in the way in which Mr Simpson thought and did not just ignore his authority which also seems to have been a concern to Mr Simpson. 119However it was foolish and reckless in the extreme to cross the rails (even if he thought it was safe) in circumstances where he had already been taken off roster for the earlier incident only four weeks previously with both incidents raising safety issues. The Board acknowledges Mr Zuiderwyck's concern about being late, and he may have had good reason for such concern. However that was not a sufficient basis for ignoring safety procedures and it leads the Board to question in what other circumstances Mr Zuiderwyck would similarly ignore/not follow safety issues. 120If there had only been one incident (either the first or second) then the disciplinary outcome for Mr Zuiderwyck would in all likelihood have been a lesser penalty. However it is the combination of the two incidents within a short period of time and both involving safety issues which has resulted in the penalty imposed and caused the concern it has for both RailCorp and the Board.. 121The Board acknowledges the harshness of the penalty of dismissal and the consequences for Mr Zuiderwyck as a long serving employee of RailCorp who has been with railCorp since he left school. The harshness of such a penalty is always the case particularly where a Rail Safety Worker such as a Driver, Guard or Construction Worker is involved and where their skills and training are not transferable and also where they can never again work for RailCorp in any capacity. As Mr Edghill pointed out this has been the subject of observation in other decisions before the Board (as currently constituted) as has the concept of harshness which was considered in Department of Health v Perihan Kaplan [2010] NSWIRComm 65. However with lengthy service such as that of Mr Zuiderwyck comes an even greater expectation that an employee will be aware of an employer's rules and procedures, particularly in regards to safety, and follow such at all times. 122Whilst the Board is most sympathetic to Mr Zuiderwyck's personal circumstances the allegations concern most serious safety breaches in circumstances where it is considered that the penalty is entirely appropriate in the circumstances of the combination of the two incidents giving rise to the allegations. The Board also notes that Mr Zuiderwyck does not have an entirely unblemished record although it is acknowledged that there are no previous serious incidents noted. 123Having carefully considered all of the relevant circumstances the Board does not intend to overturn the decision of RailCorp to dismiss Mr Zuiderwyck and his appeal will be disallowed. Order(s) 124The appeal of Neil Zuiderwyck (TAB12/209) is disallowed. 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: 09 October 2012