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. Issue(s) 6Mr Birch 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 Birch are sustained, and if so, the appropriate penalty to be imposed. Background and Chronology 7On 6 March 2012 at around 6:47pm, Mr Birch contacted the Security Control Centre (SCC) and advised that a RailCorp customer had pushed through the barriers on the concourse at Chatswood Railway Station. Mr Birch said he had spoken to the customer, who pushed and threatened him and then struck him, however he suffered no injuries. 8CCTV footage of the concourse at Chatswood Railway Station showing the incident was saved and viewed by Mr John Gilroy, Customer Service Manager. Mr Gilroy referred the matter to RailCorp's Investigation Unit (RUI) for investigation stating that the footage "raised some serious concerns of conduct and behaviour on the part of our staff member" (Exhibit 1-A1). 9Ms Danielle Heatley, an Investigator with the RUI conducted a disciplinary investigation and in doing so obtained and viewed the CCTV footage. On 26 March 2012, Ms Heatly forwarded a letter to Mr Birch notifying him of the following allegation that he had breached the Code of Conduct (the Code) and the State Rail Violence at Work Policy (the Policy): Allegation On Tuesday 6 March 2012, at Chatswood Railway Station, you engaged in unacceptable behaviour by becoming involved in a physical altercation with a RailCorp customer. The particulars of this allegation are: a)At about 18:35 hours on Tuesday 6 March 2012, a RailCorp customer (the Customer) entered the Automatic Gates at Chatswood Railway Station without presenting a valid CityRail ticket. You have approached the Customer and appeared to push him causing him to move away from you. b)You then walked up to the Customer and stood with your chest touching his chest before walking away. c)The Customer has approached you at the gates and you have lifted your left elbow to push him away. d)You then walked towards the Customer and grabbed his left wrist in what appears to be a wrist lock. You pushed the Customer's left hand to his back with both of your hands and moved him towards the Gate Attendant Booth. The Customer appears to struggle with you and you have released him. e)You appear to push the Customer with both arms outstretched, which has caused him to move away. f)The Customer has approached you again; however, no further physical altercation occurs and the customer appears to walk away 10Mr Birch was invited to respond to the allegations in writing within 14 days (Exhibit 1-A3) and did so by letter of 2 April 2012 (Exhibit 1-A4). He was also invited by Ms Heatly to attend a disciplinary interview on 12 April 2012 (Exhibit 1-A5), however he declined to attend the interview by email of 5 April 2012 (Exhibit 1-A6). 11Ms Heatly concluded that the allegation was substantiated and on 24 April 2012, she forwarded her Investigation Report to the Disciplinary Review Panel (DRP) for consideration (Exhibit 1-A). 12On the 17 May 2012, the DRP reviewed the evidence in relation to the allegation and made a preliminary recommendation that Mr Birch be dismissed. On 25 May 2012, Mr Tony Hinchon, Acting General Manager Customer Service, Sector 3, wrote to Mr Birch advising him of this preliminary view, and giving him 14 days in which to make submissions as to penalty and submit any further information he wished to have taken into account (Exhibit 1-B). 13On 6 June 2012, Mr Birch provided a written response to RailCorp (Exhibit 1-C). 14On 8 June 2012, Mr Hinchon reviewed Mr Birch's response and confirmed by email to the DRP that no new issues requiring investigation had been raised. On the 15 June 2012, the DRP also considered Mr Birch's response and confirmed their recommendation of dismissal. On 29 June 2012, Mr Hinchon signed a letter confirming that Mr Birch was dismissed effective 29 June 2012 which was acknowledged by Mr Birch on that date (Exhibit 1-E). Mr Birch was paid 5 weeks' salary in lieu of notice. Evidence on behalf of the Respondent 15RailCorp's evidence before the Board was contained in the Investigation Report and attachments, including the relevant CCTV footage, Mr Birch's Ellipse Personnel History Report, the allegation letter and written response (Exhibit 1-2A) and additional attachments (Exhibit 1B-E) which included, inter alia, the various letters exchanged with Mr Hinchon; the Curriculum Outline for Preventing Workplace Violence (Exhibit 3); Mr Birch's Training Records (Exhibit 4) and a Narrative to accompany the CCTV Footage (Exhibit 5). 16RailCorp also tendered a witness statement from Mr Paul Monaco, Duty Manager, Chatswood Station (Exhibit 2) which had been provided to Mr Birch prior to the hearing. Mr Monaco was not required for cross-examination. 17Ms Heatly's Investigation Report summarised the CCTV footage as follows: ................ The CCTV shows Mr Birch approaching the Customer and speaking with him. The CCTV shows Mr Birch with his outstretched right arm push the Customer in the side of his body, which has caused the Customer to move away from him. The CCTV shows Mr Birch bending over appearing to pick something up, and then walking up to the Customer and standing with his chest touching the Customer's chest before walking away. The CCTV shows the Customer approaching Mr Birch at the gates. The CCTV shows Mr Birch has lifted his left elbow to push the customer away. The CCTV shows Mr Birch walking towards the Customer and grabbing his left wrist in what appears to be a wristlock. The CCTV shows Mr Birch has pushed the customer's left hand to his back with both of his hands and to improve the Gate Attendant Booth. The CCTV shows the Customer appears to struggle and has then been released by Mr Birch. The CCTV shows Mr Birch appearing to push the Customer with both of his arms outstretched, which has caused the customer to move away. The CCTV shows the Customer approaching Mr Birch again; however, no further physical altercation occurred in the customer appears to walk away. 18Ms Heatly reported that following receipt of Mr Birch's letter of response to the formal allegation, the CCTV footage was reviewed again. It was indicated in response to Mr Birch's allegation of the Customer using his left knee to hit the right side of Mr Birch's face that the footage did not clearly show this due to another customer standing in front of the two. She went on to say: The Customer is seen raising his right leg however, the footage does not show if contact was made with Mr Birch's face or any other part of his body, due to the other customer standing in front of Mr Birch. The CCTV footage does not show the Customer slapping his face as described by Mr Birch in his written response. It is noted, that at the time of the incident there are a number of RailCorp customers going through the Automatic Gates at Chatswood RWS who have witnessed this incident. 19In the analysis of the incident, and in response to the mitigation raised by Mr Birch as leading to him placing the Customer in a wristlock, Ms Heatly indicated: "While we cannot discount Mr Birch's evidence that he was assaulted by the customer, Mr Birch's actions appear to have escalated the situation with the customer". 20In relation to the attempt to arrest the Customer it was noted: "Mr Birch says he decided to place the Customer under arrest after he swung his arms about. The CCTV footage does not show the Customer swinging his arms about but shows the Customer approach Mr Birch at the gates. Mr Birch has lifted his elbow to push the Customer away, he has then walked towards the customer and attempted to place him in a wristlock." 21Ms Heatly indicated that Mr Birch's actions had put himself at risk with the customer because he was not equipped with the correct training and equipment to handle volatile customers. In addition, his position as a CSA was not to enforce rules around fare evaders but to serve customers and attend to the station's presentation. Regardless of Mr Birch's defence that he was struck by the customer, his actions were beyond his role as a CSA and represented a breach of the RailCorp Code of Conduct. 22Mr Monaco stated that Mr Birch had come and spoken to him at 18.35 hours and he had made a 'file note' in the Station diary of that conversation. The handwritten file note (with typed copy version) was attached to his statement. 23The file note related that Mr Birch stated that a male youth had run into him causing an altercation of some sort, with CSA Birch claiming he was pushed, so he pushed him back causing him to fall to the ground. There was mention of "the youth offered to take him on - Les told him to go on his way". The matter was over when he arrived and so he called security to report it and they in turn wanted more information from Mr Birch and said they would compile SRS and Footage saved. 24Mr Monaco said he had been asked whether Mr Birch told him that he had been kneed in the face and he confirmed that Mr Birch had not told him this. 25The CCTV Footage was played to the Board and the Board was taken through the Narrative Timeline. Evidence on behalf of the Appellant 26Mr Birch had not filed a witness statement in accordance with the directions issued and relied on the two letters that had he forwarded to RailCorp during the disciplinary process as being his evidence before the Board. The first being to Ms Heatly on 2 April 2012 (Exhibit 6) and the second to Mr Hinchon on 5 June 2012 (Exhibit 7) 27In the first letter to Ms Heatly on the 6 March 2012 he explained that he had left the GAC booth to reset gate 45 as it was defective, was answering customer queries when he noticed a male person around 18 years of age walk to gate 46, look around and walk through by holding the leaves apart without first inserting a valid ticket for travel. Mr Birch stood in front of him, asked him to go back and buy a ticket, told him he must have a valid ticket, but he refused to listen and said "fuck off get out of my way". 28Mr Birch said the male was about half his size and as he stood in front of the customer, the male walked into him so Mr Birch brushed him aside with his left arm in a backhanded motion. That was when initial contact was made and Mr Birch pushed him aside to get him away. He then approached the male and words were exchanged. 29Not long after this the male started slapping his own face gesturing to Mr Birch to take him on and he was shaping up to Mr Birch saying things like "come on you wanna have a go do ya, come on you fucking fat cunt". Mr Birch said he stood back and the male again approached him. At that time Mr Birch heard something drop, thought it was his glasses but later realised it was the wide gate auto button, turned side on and bent down to pick it up. Mr Birch saw the male raise his right knee which made contact with the side of his face. Mr Birch was a "bit hazy" after this assault but walked away towards gate 45 to reset it as he wished to disengage from the conflict. Immediately after this he heard the male yelling at him and again slapping his face gesturing for Mr Birch to take him on. The male walked over to him near gate 45 and lunged at him with his chest sticking out and hit Mr Birch with both his body and his arms. Mr Birch lifted his left arm/elbow to push him away and he swung his arms about and it was at this point that Mr Birch decided enough was enough and that he was going to arrest the customer for assault, telling him so, and that he would call the police. 30The male person struggled somewhat getting himself free and out of the wristlock Mr Birch had him in, but he did not let him go as his previous training at the Police Academy in Goulburn taught him that you cannot "unarrest" anyone. The male then came at Mr Birch who pushed him away with both his arms outstretched and the male stumbled backwards. 31Around this time the male had taken off his bag, torn off his hoodie and came towards Mr Birch again wanting him to take him on. Mr Birch decided at that point he was not going to pursue the arrest any further as it would only have escalated far greater, he was out of breath and retreated towards the GAC booth. He was approached a further time and pointed to/for him to getaway or leave the area to catch his train with his female companion who did not speak the whole time. 32Mr Birch said the incident took less than a minute, he reported it to the SCC and was told the footage would be saved, and it was suggested to him that he report it to the Police. He was unable to report it at Gordon Police Station on his way home (it was not open for public access) and so reported it to Hornsby Police the next day and made a Police Report/Event (47082606) to Senior Constable Rio. 33Mr Birch said in his defence that he accepted he could have avoided the situation if he had not approached the customer in the first place and "just sat in the GAC and watched fare evaders (potential or otherwise) enter and leave as they please". He went onto say that he had not ruled out laying charges against the person, the Police could only lay charges when/if he decided to proceed. 34In Mr Birch's second letter of 6 June to Mr Hinchon he maintained that "vital information concerning the allegation was missing" and that this information could have given a more favourable outcome and summarised that information in point form and essentially repeated the information he had earlier relayed to Ms Heatly but in slightly different terms. 35He denied initially pushing the customer away and maintained it was only after the customer shoulder charged him and assaulted him a second time that he decided to arrest him and call the Police. This was when Mr Birch put the customer in a wrist lock and attempted to detain him. The customer wrestled himself out of the wrist lock and came at him again. This was when he pushed the customer away and he stumbled backwards. 36Mr Birch stated that he reported this incident as early as possible to the Duty Manager, Paul Monaco who placed an NIN and asked him to contact the Security Control Centre which he did and made a report. 37Mr Birch also stated that Helen Bellette, RTBU organiser had made a request of RailCorp IR to view the CCTV but this request was refused although Mr Hinton had originally requested and approved the viewing of this footage. 38Mr Birch stated that he had worked for RailCorp for a total of 13 years and had held his position of CSA Safe Working since January 2012. He had previously worked at Woy Woy and Chatswood Stations and had held the position of CSA 2 at Mount Colah for 5 1/2 years. During his service at Mount Colah he received Customer Service Awards and the "Golden Mic" Award in August 2008. In addition, he had received the Premier's Award which was nominated by the local State MP for outstanding community service. 39Mr Birch also stated that he had a wife and young family, including two boys aged 2 and 4 his dismissal had caused him incredible financial hardship as his wife did not work and was very reliant on him due to a awaiting visa requirements and could not work as the children were too young to attend school and childcare was not an option. 40Mr Birch also stated that although they had monthly meeting at Chatswood that covered the 'Step-back" policy he could not recall any formal training in relation to this policy. Additionally his previous experience as a Revenue Protection Officer caused him to react on instinct. He understood that this was no longer acceptable to RailCorp and that he must remain up-to-date with RailCorp policies and procedures. 41Mr Birch asked that he be given the opportunity to return to his position at Chatswood or at some other location of RailCorp's choice. 42Mr Birch also relied on two written character references, as well as a Position Description for Customer Service Attendant Qualified as at September 2006 (Exhibit 8), which were tendered without objection. 43In cross examination Mr Birch accepted that his duties in his role as a Customer Service Attendant were quite different from those of a Revenue Protection Officer. 44He maintained that he still did not consider that he had done anything wrong. He accepted that he could have also avoided the incident if he had not approached the customer and blocked his passage. 45When asked why he had not told DM Monaco about being kneed in the face he said that he normally wore glasses and he was feeling a "bit hazy in the right side of his eye some time after the incident and his recollection immediately afterwards was..." 46He maintained that he was kneed but that due to his relative size that did not cause him to fall back. He also maintained that the customer was slapping his own face. 47When it was put to Mr Birch that at the time he approached the customer to place him under arrest he was actually walking away from him, he responded: A. Because I was telling him that I was placing him under arrest and having him charged with assault and the only way I could affect (sic) that would be to restrain or detain him. 48When asked if his training told him that was an appropriate de-escalation and that he should walk away, he maintained that he did walk away after he was kneed in the head and "then he came up and hit me with his left shoulder". It was after this second assault that he decided to place him under arrest. 49In response to a question from the Board Mr Birch indicated that he was making a "citizen's arrest." 50Mr Birch also accepted that at the time he pushed the customer with two hands he was in the process of walking away from him. Submissions on behalf of the Respondent 51Ms Sharp made oral submissions in addition to the written submissions as filed (Exhibit 1) and in doing so summarised the relevant evidence. 52The written submissions drew the Board's attention in some detail to the relevant provisions of the Code of Conduct under the heading of 'Acceptable behaviour and responsibilities' that had been breached by Mr Birch. 53It was also submitted that by becoming involved in a physical altercation with a RailCorp customer Mr Birch had failed to fulfil his obligations to: Put safety first in everything we do; Always act in the best interests of RailCorp; Maintain and promote high levels of acceptable behaviour; Carry out your duties carefully, safely, honestly, courteously and fairly; and Treat members of the public fairly, consistently and with respect. 54Ms Sharp submitted that while Mr Birch, a CSA, was on duty at the ticket barrier at Chatswood Station he became involved in a physical altercation with a Customer who was some 18 years of age, and half the size of Mr Birch, as acknowledged by Mr Birch. It was conceded by RailCorp that the Customer was a fare evader. 55However, it was submitted that Mr Birch was the aggressor and initiated the physical altercation. At best he stepped up to the Customer and physically blocked his path, or at worst approached the Customer at speed and barged him. Either way, the conduct, and subsequent escalation, was completely unacceptable and a breach of the Code of Conduct and Violence at Work Policy. Further, Mr Birch failed to diffuse and de-escalate the situation. 56It was submitted that the basis of Mr Birch's plea of not guilty, particularly having regard to the CCTV footage, was entirely unclear. The conduct outlined in the particulars of the allegation clearly occurred and the CCTV footage showed the following seven distinct episodes of Mr Birch being the aggressor: barging the Customer; using his chest to make contact with the Customer; pushing the Customer with his elbow/shoulder; pushing the Customer (again) with his right arm; grabbing hold of the Customer, and struggling with him trying to put him in a wrist lock, whilst holding on to him and pushing him backward; twisting the Customer's arm behind his back; when the Customer manages to free himself of Mr Birch's grip, Mr Birch gives the Customer a forceful push with both hands causing the customer to stumble backwards and appear to fall to the ground [noting this is unclear as it is off screen]. 57Ms Sharp rejected Mr Birch's allegation that he was somehow provoked, and submitted Mr Birch escalated rather than de-escalated the situation. 58On the issue of appropriate penalty RailCorp acknowledged from the outset that Mr Birch was employed for 9 years at the time of dismissal and had a 13.5 year history of employment with RailCorp. However, various factors combined to make dismissal the appropriate penalty in all the circumstances. 59Ms Sharp also contended that it was important to underscore that this was not a situation where Mr Birch had acknowledged the inappropriateness of his behaviour, or accepted responsibility for the conduct. 60Ms Sharpe then elaborated on the following 10 factors which favoured dismissal as the appropriate penalty. Mr Birch was employed as a Customer Service Attendant, a position that placed upon him obligations to treat members of the public fairly, consistently and with respect; He was the aggressor in the incident; The violent nature of his conduct was extreme; The violent conduct was visited upon an 18 year old who was of a significantly smaller physical stature than Mr Birch; Mr Birch engaged in unacceptable conduct in full view of RailCorp customers, in RailCorp uniform, and indeed attracted the attention of customers who paused to watch the incident; CCTV footage did not demonstrate the alleged provocation that Mr Birch sought to rely upon in defence of his conduct; and even if the Customer had sworn at him, the violence and aggression displayed by Mr Birch was completely disproportionate and unwarranted; The conduct was a flagrant breach of the Code noting that Mr Birch had been trained in the Code as recently as February 2010 and was also a flagrant breach of the Violence at Work policy noting that Mr Birch had been trained in the Policy as recently as October 2008; In the conduct of the disciplinary investigation, Mr Birch declined to be interviewed in relation to the allegations, and it appeared that he has been dishonest in his written responses in relation to the issue of provocation (in particular, the allegation that the Customer kneed him in the head/face); Mr Birch's behaviour was gravely unacceptable and contrary to the best interests of RailCorp; and He had continued to maintain that he is not responsible for his conduct by entering a not guilty plea. 61Ms Sharp also submitted that the CCTV footage speaks for itself. Further, during cross-examination Mr Birch had conceded that at critical points in the exchange with the Customer, the Customer was walking away from Mr Birch, and Mr Birch pursued him. 62It was submitted that Mr Birch had maintained that he had done nothing wrong, saying as much in evidence-in-chief, and confirming this in cross-examination. 63In all the circumstances, it could not possibly be in the public interest to reinstate Mr Birch. 64In conclusion it was submitted that this is not a situation where Mr Birch had an unblemished disciplinary history, but was a situation where the Board's comments in Brar v RailCorp [2012] NSWTAB 7 were relevant: the conduct was particularly offensive, entirely unwarranted and of such a serious nature that dismissal was warranted. Submissions on behalf of the Appellant 65Mr Birch made oral submissions and in doing so indicated that he relied on the character references he had tendered. 66He indicated that he had rejected the invitation to attend an interview during the disciplinary investigation on the advice of the RTBU. 67Mr Birch disputed the inclusion of a customer complaint in RailCorp's evidence on the basis that he was not working on the barrier that day but up on the platform. There was also no evidence as to the relevance of that matter. 68Mr Birch also pointed out that the only reason RailCorp knew about the incident was that he had reported it. He was also the one who reported the incident to the Police. Findings 69This 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 Birch. 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. 70Mr Birch in his Notice of Appeal has pleaded 'Not Guilty' and disputes the punishment imposed on him by RailCorp. The Board's function in this matter is to determine firstly, whether the conduct as alleged took place and secondly, to determine whether the disciplinary punishment imposed by RailCorp in relation to such conduct is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. The 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. 71The Board has very carefully considered all of the evidence and the submissions of Mr Birch and RailCorp. The Board has also viewed the CCTV footage a number of times. As previously expressed in appeals, this has permitted an improved, clearer and closer view of such footage as compared to the view available on the large screen at some distance in the courtroom. 72There is no doubt whatsoever that it was Mr Birch's initial action of confronting the young male customer and seeking to prevent his entry onto the platform that precipitated the subsequent altercation. Mr Birch's action was confrontational and quite aggressive. He effectively "shirt-fronted" the young man in an inappropriate, aggressive and entirely unnecessary manner. 73The Board considers that apart from the inappropriate and unwarranted physical contact between Mr Birch and the young male that took place, in all likelihood there was also inappropriate and unnecessary verbal interaction on the part of Mr Birch which may also have fuelled the situation. It seems fairly obvious that the young male is aggressive in his response and reaction and mouths off at Mr Birch. While Mr Birch has noted in his evidence the taunting and offensive comments made by the young male he does not indicate what he may have said in response. Mr Birch does relate that he initially asked him to go back and buy a ticket etc., and then there was reference to an exchange after Mr Birch is told "fuck off get out of my way" but no detail given as to content of that exchange. Mr Birch also said he told the young man he was going to arrest him for assault. 74The Board does agree that there is a forward movement towards Mr Birch made by the young man which does appear to be an attempt to knee him, but the CCTV does not show whether any contact was made with Mr Birch's head. In any event there is no corresponding action by Mr Birch (such as putting hand to his temple) that would suggest contact had been made. That does not however justify any subsequent actions by Mr Birch. 75In any event, the occasions when Mr Birch can quite clearly be seen pushing the young man away either with his hand/arm or shoulder are each forceful physical contacts that should just never have taken place. 76The Board could not see any incident of the young man slapping his face in a "take me on" gesture but he does appear to perhaps slap his chest/body. It did not appear to the Board that he lunged at Mr Birch when he was back at the barrier (after the kneeing action), while he certainly comes right up to him it is Mr Birch who shoved him forcefully away. There does not appear to be any arm waving by the young man. None of that justifies Mr Birch's subsequent quite forceful attempt to grab hold of the young male's hands/arms, effectively wrestle to get hold of him while the young man is trying to get away, and then with some effort and struggle, place him in a wrist lock. 77There was absolutely no call for such an extreme action. Mr Birch should just have walked away and ignored what was obviously a very angry young man who was also by now behaving in an aggressive way. Mr Birch did not de-escalate the situation or remove himself from the situation as his training taught him to do. Indeed his training and his position description did not require him to take the initial action he did in confronting the young male in the first place. 78Mr Birch failed to follow the "step-back" procedure, and indeed allowed his previous role as a Revenue Protection Officer apparently to take over his actions. That was totally inappropriate and unacceptable. Mr Birch, a Customer Service Attendant effectively manhandled a young male customer, half his size, in a forceful, unwarranted and completely inappropriate manner. 79Mr Birch maintained that RailCorp would not have known of the incident had he not reported it. That ignores the fact that he would have had an absolute duty to report an incident of that nature occurring during his shift whether the incident involved himself or he saw such an incident involving another employee. It also ignores the fact this could have been the subject of complaint by the young male customer or any of the other customers who stopped to watch what was taking place. 80Mr Birch certainly had the right to maintain his personal safety. However his personal safety would not have been an issue if he had not precipitated the incident in the first place. 81Mr Birch's lengthy service with RailCorp would also give rise to a greater expectation that he would be aware of the appropriate conduct expected of a Customer Service Attendant. The situation that arose was also very much of his own making. 82Having carefully considered all of the evidence and the submissions the Board has concluded that the actions of Mr Birch did breach RailCorp's Code of Conduct and its Violence in the Workplace Policy and finds the allegation sustained. The actions of Mr Birch were also contrary to the duties required under his position description and were so extreme as to warrant dismissal. The Board notes that he was not summarily dismissed but paid five weeks pay in lieu of notice. 83Whilst the Board is not unsympathetic to the personal circumstances Mr Birch now finds himself in the seriousness of the breaches of RailCorp's Code and Policy warrant, in the Board's view the disciplinary outcome imposed by RailCorp. 84The Board does not therefore consider there is any justification for intervening in the decision made by RailCorp and intends to disallow Mr Birch's appeal. Order(s) 85The appeal of Leslie Birch (TAB 12/251) 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: 08 November 2012