Birch v RailCorp [2012] NSWTAB 35

Transport Appeal Boards New South Wales Medium Neutral Citation: Birch v RailCorp [2012] NSWTAB 35 Hearing dates: 4 October 2012 Decision date: 07 November 2012 Before: Bishop C (Board) Decision: Appeal Disallowed Catchwords: PUBLIC SERVICE - discipline - rail employee - breaches of Code of Conduct - altercation with customer evading fare - employee alleged struck by customer - attempted to effect citizen's arrest - dismissed - sought reinstatement with back pay HELD - actions of employee escalated situation - physical interaction unwarranted - conduct inappropriate - contrary to Code of Conduct - outside scope of duties - dismissal appropriate penalty in all circumstances - appeal disallowed. Legislation Cited: Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Brar v RailCorp [2012] NSWTAB 7 Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Category: Principal judgment Parties: Leslie Birch (Appellant)

Rail Corporation of New South Wales (Respondent) Representation: Ms A Sharp Marque Lawyers Pty Ltd (Respondent) File Number(s): TAB 251 of 2012

DECISION

Introduction 1Mr Birch commenced employment with RailCorp (and/or its predecessors) in March 1997 in the position of Station Assistant, and from February 1998 until September 2001 was employed as a Revenue Protection Officer. On 10 March 2003, he was re-employed by RailCorp as a Customer Service Attendant Level 1 (CSA) at St Leonards Station, became a CSA Level 2 at Woy Woy and Mt Colah Stations, and after an authority reorganisation, was transferred to Chatswood Station as a CSA on 14 March 2010. He remained in this position, and at this location, until his dismissal. 2On 29 June 2012, Mr Birch was notified by RailCorp that he was dismissed for breaches of the RailCorp Code of Conduct (the "Code"). 3On 4 July 2012, Mr Birch 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 30 July 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 4 October 2012. 5RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980.