Norman Jameson and Rail Corporation of NSW ("RailCorp") [2012] NSWTAB 33

Transport Appeal Boards New South Wales Medium Neutral Citation: Norman Jameson and Rail Corporation of NSW ("RailCorp") [2012] NSWTAB 33 Hearing dates: 7 September 2012 Decision date: 10 October 2012 Before: Tabbaa C AM (Board) Decision: Appeal disallowed Catchwords: Dismissal: Failure by Appellant to comply with Drug and Alcohol Policy; Under the influence of drugs while at work; Urine sample tested positive for cannabis metabolites; Australian Standard AS/NZS 4308:2008; Personal and mitigating considerations to be balanced against gravity of misconduct; Second occasion Appellant has been caught. Legislation Cited: Transport Administration (Staff) Regulation 2005 Transport Administration Act 1988 Rail Safety (Drug and Alcohol Testing) Regulation 2008 Rail Safety Act 2008 Work Health and Safety Act 2011 Cases Cited: Department of Health v Perihan Kaplan [2010] NSWIRComm 65; Keuenhoff v RailCorp [2012] NSWTAB 10; Walters v RailCorp [2012] NSWTAB 3; Tauia v RailCorp [2012] NSWTAB 27; and Dickson v RailCorp [2012] NSWTAB 9 Category: Principal judgment Parties: Mr B Edghill (Rail, Tram and Bus Union, NSW Branch) (Appellant)

Ms Melanie Robinson (RailCorp) File Number(s): TAB 224 of 2012

DECISION

Introduction 1This is a decision in an appeal pursuant to clause 32 of the Transport Administration (Staff) Regulation 2005 against the decision of Rail Corporation of NSW ("RailCorp") to dismiss Mr Norman Jameson from the position of Rover Cleaner. 2Mr Jameson (the "Appellant") commenced employment with RailCorp and/or its predecessors on 11 October 2001. 3On Monday, 2 January 2012, Testing Officer, Vanessa Caridi, attended the Presentation Services Depot at Central Railway Station and conducted random drug tests on employees, including the Appellant. 4A urine sample was provided by the Appellant at approximately 8.54 am and Laverty Pathology undertook its analysis and provided a written report on its findings. The Report confirmed that the Appellant's urine sample returned a positive reading to Cannabis Metabolites (Delta-9-THC-COOH) at a level of 70 ug/L, which is above the cut off level of 15 ug/L as prescribed by the Australian Standard AS/NZS 4308:2008. 5The Appellant was stood down and the matter was referred to Mr John Sharp, an investigator with the Respondent's Investigations Unit, to conduct a disciplinary investigation. 6Mr Sharp obtained a statement from Ms Caridi and her Report, the Pathology report and the Appellant's personnel history. 7Mr Sharp forwarded a letter to the Appellant, dated 30 January 2012, notifying him of the allegation that he had breached the RailCorp Code of Conduct and inviting him to respond to the allegations in writing within fourteen (14) days. 8On 3 February 2012, the Appellant provided a written response to the allegation citing personal and mitigating considerations he wished the Respondent to take into account. He advised that he had been referred to the Drug Investigation Unit by the Human Resources Department and had undertaken four tests all of which had returned negative results. He also advised that he had consulted his Doctor who referred him to counselling which he was undertaking. In that regard, he attached two certificates of attendance from Davidson Trahaire Corpsych dated 11 and 18 January 2012 respectively. He provided an assurance that he will not come under notice again for any alcohol or drug related matter. 9The Appellant attended a disciplinary interview with Mr Sharp on 15 March 2012. 10Mr Sharp concluded that the allegation was substantiated and forwarded his completed Investigation Report to the disciplinary Review Panel (DRP) for consideration on 23 March 2012. 11Following a review of the evidence, the DRP made a preliminary recommendation on 13 April 2012 that the Appellant be dismissed. On 16 April 2012, Mr Michael Armstrong, General Manager-Presentation Services, wrote to the Appellant advising him of the Panel's preliminary view and inviting him to make submissions in writing, within fourteen days, in regard to an appropriate penalty and to submit any further material he wished to be taken into account by the DRP. 12The Appellant responded on 20 April 2012 repeating the personal and mitigating issues he wished the DRP to take into account. 13Mr Sharp reviewed the response from the Appellant on 1 May 2012 and considered that no new issues had been raised by the Appellant for consideration. 14On 17 May 2012 the DRP considered the Appellant's response and confirmed their recommendation to dismiss him. 15On 22 May 2012, Mr Armstrong signed off on a letter confirming that the Appellant was to be dismissed effective from 24 May 2012. He was paid four weeks' pay in lieu of notice.