Transport Appeal Boards New South Wales Medium Neutral Citation: Boff v RailCorp [2013] NSWTAB 1 Hearing dates: 24 and 25 October 2012 Decision date: 10 January 2013 Before: Bishop C (Board) Decision: Appeal disallowed Catchwords: PUBLIC SERVICE - discipline - rail employee - allegations of breaches of Code of Conduct and Dignity & Respect in the Workplace Procedure - two altercations with supervisor - allegations of yelling - inappropriate language - bullying and harassment - reinstatement with back pay sought. HELD - conduct of employee entirely inappropriate and uncalled for - disrespectful - undermined authority of supervisor - contrary to Code and Procedure - dismissal appropriate penalty in all circumstances - appeal disallowed. Legislation Cited: Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Boff v Chief Executive of RailCorp TD 109/09 Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Category: Principal judgment Parties: Jean-Luc Boff (Appellant) Rail Corporation of New South Wales (Respondent) Representation: Ms J Nand Sparke Helmore Lawyers (Respondent) File Number(s): DECISION Introduction 1Mr Boff commenced employment with RailCorp (and/or its predecessors) in November 1999 as a Customer Service Attendant and was employed in this position at Strathfield Station at the time of his dismissal. 2On 30 April 2012, Mr Boff was notified by RailCorp that he was dismissed for breaches of the RailCorp Code of Conduct (the "Code"). 3On 9 May 2012, Mr Boff 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 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 originally set down for hearing on the 16 and 17 August 2012. These dates were vacated at the request of the Rail, Bus and Tram Union, NSW (RTBU) on behalf of Mr Boff due to his illness (medical certificate supplied). The matter was then listed for hearing on the 24 and 25 October 2012 before the Board as currently constituted. 5RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. Issue(s) 6Mr Boff 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 Boff are sustained, and if so, the appropriate penalty to be imposed. Background and Chronology 7On 30 March 2011, following an incident at Strathfield Station involving Mr Boff yelling at Duty Manager Mark Hall, an interview was held with Mr Boff, which resulted in him being placed under a period of monitoring for three months (Exhibit 1-C1). 8On 25 and 26 May 2011, while working in his capacity as a CSA, Mr Boff engaged in interactions with Duty Manager (DM), John Tanious. Mr Boff's behaviour during the two interactions were referred to RailCorp's Investigations Unit (RUI) for investigation (Exhibit 1-C1). 9Mr Michael Crimmins, an Investigator with the RUI, undertook the disciplinary investigation obtaining relevant documentary evidence and witness statements from DM Tanious (Exhibit 1-C11); CSA Linda Vendruscolo (Exhibit 1-C20); and Station Manager Neville Roffe (Exhibit 1- C31). 10On 11 July 2011, Mr Crimmins sent a letter to Mr Boff advising him that he was conducting a disciplinary investigation into the possibility that Mr Boff had breached the Code and the Procedure (Exhibit 1-C2). 11On 16 August 2011, Mr Crimmins sent letter to Mr Boff advising him of the allegations set out below, attaching copies of the Code, the Procedure and the RailCorp Discipline Policy and requesting a response to the allegations (Exhibit 1-tab C3): Allegation One On 25 May 2011, while working in his capacity as a Customer Service Attendant at Strathfield Railway Station, Mr Boff engaged in unacceptable behaviour by subjecting Duty Manager (DM) John Tanious to bullying and harassment and/or inappropriate behaviour. The particulars of this allegation are: a)On 25 May 2011, Mr Boff was working in his capacity as a Customer Service Attendant on Platforms 5 and 6, Strathfield Railway Station. Mr Boff's designated point of duty for that day was the Control Room. Sometime during Mr Boff's shift, DM Tanious made a number of attempts to contact him by telephone and then by two-way radio. Mr Boff failed to answer the telephone or respond to DM Tanious' attempts to contact him by two-way radio. b)DM Tanious observed Mr Boff standing near the lifts on Platforms 5 and 6 talking to two cleaners. DM Tanious called across the platform and requested that Mr Boff answer the telephone in the Control Room. Mr Boff continued to talk to the cleaners before making his way to the Control Room. c)While walking to the Control Room, DM Tanious asked if Mr Boff had his two-way radio. Mr Boff did not answer DM Tanious directly and instead took his two-way radio from his belt and broadcasted over the radio network words to the effect of: i.The whole platform is my point of duty. I can work from anywhere on the platform, I don't have to be in the control room." then to Mr Tanious ii."Why do you want me to answer the radio when you haven't answered the radio yourself". d)"Mr Boff continued to address DM Tanious in an angry outburst, using his two-way radio to broadcast over the radio network why he did not answer the radio calls of DM Tanious. e)Mr Boff then contacted DM Tanious by telephone and yelled at him telling him that he did not attempt to contact Mr Boff by two-way radio. Mr Boff then accused DM Tanious of harassing and intimidating him. f)Mr Boff continued to yell at DM Tanious and told him that he was not fit to do his job as a Duty Manager or any other job. Allegation Two On 26 May 2011, while working in his capacity as a Customer Service Attendant at Strathfield Railway Station, DM Tanious directed Mr Boff undertake his duties on the South Barrier. Mr Boff failed to comply with this lawful direction by refusing to work on the South Barrier. The particulars of this allegation are: a)At or about 05:45hrs, DM Tanious spoke to Mr Boff in the sign on room at Strathfield Railway Station. DM Tanious told Mr Boff that he was required to work on the South Barrier. Mr Boff replied with words to the effect of "Why do I have to go over to the main barrier? Who else doesn't want to do it? Why are you sending me there first thing in the morning? Who is sick? Who is missing?" b)DM Tanious explained to Mr Boff why he required him to work on the South Barrier. He then asked Mr Boff if there was any reason why he could not undertake those duties. Mr Boff replied with words to the effect of "You're picking on me. You think I'm weak but I'm not. You can't make me go there, my roster is north barrier. You can't change my master roster." Allegation Three On 26 May 2006 , while working in his capacity as a Customer Service Attendant at Strathfield Railway Station, Mr Boff engaged in unacceptable behaviour by subjecting DM Tanious to bullying and harassment and/or inappropriate behaviour. The particulars of this allegation are: a)At or about 05:45hrs on 26 May 2011 in the sign on room, DM Tanious directed Mr Boff to undertake duties at the South Barrier. Mr Boff refused to do so and appeared to become angry. b)DM Tanious informed Mr Boff that if he refused to undertake his duty, he would be signed off. Mr Boff then shouted at DM Tanious saying words to the effect of "Why am I needed to work south barrier. You can't sign me off. If you sign me off I will be waiting outside on the pavement for the union to arrive and I will take your pay away from you and give it to me." c)Mr Boff continued to yell at DM Tanious and move towards him. DM Tanious told Mr Boff he was not going to argue with him. Mr Boff replied with words to the effect of "You're an idiot you don't know how to do your job." d)Later in the Control Room, Mr Boff then informed DM Tanious that he intended to report sick. DM Tanious asked Mr Boff for how long. Mr Boff replied with words to the effect of "None of your business. You're an idiot." e)Mr Boff then left the Control Room and returned a short time later and continued to behave in an irrational manner. Mr Boff moved towards DM Tanious and on doing so, Mr Boff was told to leave the workplace. 12Mr Boff provided a response to the allegations by letter of 1 September 2011 (Exhibit 1-C4) which can be summarised as follows: Allegation 1 He was speaking to cleaners near the lifts on platform 5/6 when DM Tanious called him from platform 4 and said "John, don't you answer the telephone or radio?" He had not heard any calls on the telephone or radio or two-way radio. DM Tanious waved at the Appellant and said "get back to the control room". He replied over the two-way radio to DM Tanious "the whole platform is my point of duty". After this he telephoned DM Tanious and asked why he wanted him in the control room and DM Tanious said "you will know soon" and hung up the telephone. Later that day DM Tanious contacted him over the two-way radio and said "John, when are you going to do your work". He replied "you are harassing and intimidating me" and "when are you going to do your job as a Duty Manager". Allegation 2 At about 5:45am DM Tanious said to him "go down to the South Barrier and don't ask questions. " He asked why, and 'why me?' to which DM Tanious replied "just do as you are told or I will sign you off". Mr Boff spoke to DM Marsland who told him that Sonia was off sick. He spoke to DM Tanious and asked him why he doesn't explain things to him and said that he was not weak even if he thinks he is. He also said that DM Tanious cannot change his roster and not tell him why and that he should also ask him first. Allegation 3 He denied refusing DM Tanious' direction to undertake duties and denied becoming angry. He questioned why he had to work at the South Barrier. He admitted telling DM Tanious that he would call the union but denied saying that he would take his pay. DM Tanious was speaking to him in a loud voice and his voice did become loud but he denied moving towards or threatening DM Tanious. He admitted saying "you do not know how to do your job". About ten minutes later he told DM Tanious that he was sick and going home. When asked how long he would be sick for, he replied that it was "none of his business". Mr Boff denied acting in an irrational manner. 13On 13 October 2011 Mr Crimmins wrote to Mr Boff inviting him to attend a disciplinary interview on 21 October 2011 (Exhibit 1-C5), however he failed to attend, having bee advised not to attend by the RTBU. 14Mr Crimmins considered all of the evidence and found the allegations to be substantiated and forwarded his Investigation Report was forwarded to RailCorp's Disciplinary Review Panel (DRP) for consideration (Exhibit 1-C). 15On 30 January 2012 the DRP considered the allegations against Mr Boff and the Investigation Report and made a preliminary recommendation Mr Boff be dismissed. Mr Boff was advised of that preliminary view by letter of 20 March 2012 (received on 21 March 2012) and given fourteen (14) days to make submissions regarding the proposed outcome (Exhibit 1-D). 16Mr Boff provided a response by letter dated of 3 April 2012 (Exhibit 1-E), in which he relevantly stated the following: Allegation 1 He always answered phone calls and responded to radio calls. When DM Tanious yelled across to ask him if he had his two-way radio, he showed his radio to DM Tanious but did not yell as there were passengers on the platforms. Allegation 2 DM Tanious was not on duty when he told him he had to work on the South Barrier. Allegation 3 He admitted objecting to the direction from DM Tanious to work the South Barrier but he did not become angry. He did say that DM Tanious could not sign him off. He did not recall all of the conversation as he became upset. He did raise his voice but did not move towards DM Tanious in an aggressive way. He did call DM Tanious words similar to "you're an idiot" and "you don't know how to do your job". DM Tanious had spoken to him in a demeaning way. He did not move towards DM Tanious in an aggressive way in the control room. He claimed that he had been bullied and harassed by DM Tanious on numerous occasions and he did not know how to deal with it. 17The DRP considered Mr Boff's response, confirmed its preliminary recommendation to dismiss him, and he was notified that he was dismissed by letter of 27 April 2012 (received on 30 April 2012) (Exhibit 1-F) and paid five weeks' pay in lieu of notice. Evidence on behalf of the Respondent 18RailCorp's evidence was contained in the Investigation Report (Exhibit 1- 2A) which included, inter alia, referral of the incidents; the various letters exchanged concerning the Allegations, Mr Boff's responses and the disciplinary process and outcome; Record of Interview of 31 March 2011 (re 30 March incident); TAB decision in TD109/09; relevant rosters, Skills Maintenance training records; Mr Boff's Ellipse Personal History Report; Memos from various relevant staff at Strathfield Station; and Statements from the following RailCorp employees from Strathfield Station who all gave oral evidence during the hearing: John Tanious............. Duty Manager (Exhibit 1-C11), Neville Roffe...............Station Manager (Exhibit 1-C31), Linda Vendruscolo.....Customer Service Attendant (Exhibits 3 & 1-C20), Michael Marsland.......Duty Manager (Exhibits 5 & 1-C21), Suzanne Wallis...........Customer Service Team Leader (Exhibits 4). 19In oral evidence DM Tanious generally reiterated his written evidence but in doing so expanded in some detail on that evidence and only those matters considered to be of sufficient additional relevance have been included below. 20DM Tanious explained the layout of Strathfield Station, the duties generally expected of a CSA in relation to the platform and Control Room and indicated that on the day of the first incident of 25 May 2011 there would have been about 12 staff on duty with radios at the time of the altercation with Mr Boff, not to mention the Booking Office staff. 21DM Tanious stated that Mr Boff had been under his supervision for some twelve months. In that time he had had to speak to Mr Boff on a number occasions about his inappropriate behaviour and performance during the course of his duties as a CSA. Some of those behaviours included inappropriate remarks made over the two-way radio, not responding to requests generally, and at times, his disregard of his duties. 22He gave an example of an incident of inappropriate behaviour on 10 April 2011 which involved Mr Boff taunting a passenger, then requesting emergency assistance over the two way radio, and when DM Tanious responded, Mr Boff followed the passenger and appeared to taunt that person. DM Tanious called him over the two way but he would not respond and continued to follow and taunt the passenger. His observation was that the passenger wanted to leave but Mr Boff continued to taunt him until eventually the passenger moved on. This occurred on platform 5 & 6 and DM Tanious was on platform 4 & 5. He later spoke to Mr Boff about the incident, asked him what had occurred and why he had not disengaged from the passenger. His response was that he was trying to give the passenger about whom he had requested assistance, customer service. 23DM Tanious maintained that from his observation Mr Boff was taunting the passenger but agreed that there was no complaint made by the passenger. 24Later in that same shift Mr Boff was provided with train running information by the Team Leader over the two-way radio but he refused to respond and this disrupted train operations and some passengers were unable to catch the train. DM Tanious handed him a 'Request for Information' in relation to both of those incidents at the completion of the shift and when he did so Mr Boff began to yell at him and complained that it was harassment and he was being picked on. Mr Boff also yelled at the Team Leader who was present and asked why he had been dobbed in. Mr Boff subsequently provided written responses to both incidents. 25DM Tanious also expanded upon and provided more detail about these two incidents. 26Since that time DM Tanious had been involved in two further incidents with Mr Boff during which he displayed inappropriate behaviour (the incidents set out in the allegations in the Background and Chronology above). 27On 25 May 2011 DM Tanious needed to call Mr Boff and had made repeated phone calls to the Control Room on Platforms 5 and 6 being Mr Boff's point of duty. As he could not contact him by telephone he attempted to contact him by the two way radio. After not being able to raise him he looked out and saw him on Platform 5 standing with a white flag in his hand talking to the contractors cleaning the lift. He then called across the platforms to Mr Boff to answer his landline however he continued his conversation with the contractors and then gradually retreated to the Control Room. As Mr Boff was walking to the Control Room DM Tanious called to him and asked him if he had his radio. He didn't answer but raised his two way and began to rant over the two way saying "the whole of the platform is my point of duty, I can work from anywhere on the platform, I don't have to be in the control room. Is the signal box calling me?" DM Tanious stated that at this time Mr Boff was not talking to him specifically but appeared to be talking to everyone on the network. 28DM Tanious stated that he did not know if the Signal Box was in fact calling Mr Boff and that was one of the reasons why he should have been at the Control Room when not performing other duties. If there was a service disruption or a safety incident the Signal Box would contact the Control Room directly to inform the CSA of the situation and by Mr Boff being away from his point of duty he might miss receiving such information. When a CSA was performing duties on a platform they were based in the Control Room and needed to respond to incidents from the Control Room. Unless a CSA needed to leave the Control Room to attend an operational matter they were required to remain in the Control Room so that if an incident occurred they were able to monitor and respond. 29DM Tanious stated that when he saw Mr Boff away from the Control Room he was not performing flagging duties or dealing with any incidents and seemed to be very involved with talking to the contractors cleaning the lifts. There was no need for him to be talking to the contactors unless he saw an unsafe act.. Contactors who came on the platform station would already have been inducted and have a sticker identifying them that they'd been inducted. 30Mr Boff continued to rant over the radio even though everyone on the network could hear saying "Why do you want me to answer the radio when you haven't answered the radio yourself". DM Tanious believed this was a reference to an earlier incident involving lost property when Mr Boff was speaking to the CSTL about the matter on the two way radio and DM Tanious had monitored that conversation but there was no need for him to become involved as the CSTL was dealing with the matter. 31DM Tanious stated that Mr Boff continue to rant over the radio, his rants were defensive and he appeared to be attempting to justify his behaviour of not answering the two-way radio. DM Tanious considered his behaviour to be inappropriate and told him to note what had occurred as he would be called to account for his behaviour. Mr Boff then contacted DM Tanious by telephone, telling him that he did not attempt to contact him by radio, ranted at him and accused him of harassing and intimidating in. He was yelling at DM Tanious who attempted to redirect the conversation by stating to him the importance of following radio protocol and responding to calls and informed him that it was important to be vigilant as to what was occurring around him. Mr Boff continued to scream at him telling him he was not fit to do his job or any other job. 32DM Tanious indicated that he found that throughout there was a belittling tone used and it was very repetitive. He said that even if he had wanted to respond he could not because Mr Boff was "hogging" the airwaves and on top of that he called him an idiot and that was broadcast to everyone at the station. 33He said he found it belittling, embarrassing and he always felt anxiety every time he had to deal with Mr Boff because he was not getting a straightforward cooperative response. 34DM Tanious then made a note of the events by way of an email which he forwarded to DM Mark Hall and CSM David Screen. 35DM Tanious considered Mr Boff's behaviour by yelling at him inappropriate and his performance was lacking in radio protocols. 36He denied having a second conversation later that day as asserted by Mr Boff in which he told him "when are you going to do your work". That would not make sense as he was on a platform to perform work and the duties were on going - train running and overall control of the platform. 37DM Tanious also explained the difference between the layout and physical setup of the North and South Barriers (and the difference between the two with automatically opening gates and the other opening manually), that the duties were identical, and the importance of having the South Barrier staffed as it was the main entrance into the Station. Normal practice would be, in the case of a staff shortage, that there would be staff on standby but you would not know what time they would be in and it would be the practice to take someone from the North Barrier to go to the South Barrier. The North Barrier could be left unattended but the South barrier could not they were both operational from 5.45 am. 38The next day (26 May) DM Tanious requested that Mr Boff undertake Roster 10 duties (South Barrier) as opposed to Roster 11 duties (North Barrier) due to a staff shortage. He spoke to Mr Boff at about 5:45 am in the sign-on room and, after greeting him, told he needed him to work on the South Barrier today. Before he could say anything further Mr Boff appeared to become angry, as was apparent by his body language, he tensed up and lifted his chest and immediately began to argue in loud voice stating "Why do I have to go over to the main barrier? Who else doesn't want to do it? Why are you sending me there first thing in the morning? Who is sick? Who is missing?" He told Mr Boff "just hang on a sec the shift wasn't covered and I need you to look after main barrier. Is there a problem with you doing main barriers? 39Mr Boff started yelling at him saying "you're picking on me, you think I'm weak but I'm not. You can't make me go there, my roster is north barrier. You can't change my master roster" 40DM Tanious stated that he had the delegation to allocate staff duties in order to meet operational requirements and that included varying staff duties. There was also no significance in the master roster, that came out prior to staff changes and adjustments. 41He maintained that he did ask Mr Boff why he couldn't work there but he just told him he wouldn't. 42Mr Boff continue to rant and shout at him, and as he was obviously upset at the request, he allowed him to vent. As he appeared to be getting worked up he decided to intervene and said to him "Jean-Luc I am not here to argue or fight with you I have given you a direction and you have already wasted enough time. Either go down to the main barrier and start work or I will sign you off for refusing duty". Mr Boff again commenced to scream at him asking "why am I needed to work south barrier. You can't sign me off. If you sign me off I will be waiting outside on the pavement for the union to arrive and I will take your pay away from you and give it to me". He then said to Mr Boff "you have a clear choice, go to your point of duty as directed or I will sign you off". 43DM Tanious then called DM Marsland over (the Duty Manager on the previous shift) and asked him in front of Mr Boff which roster required coverage. DM Marsland replied that Tokdogan had gone off sick and the other shift had not been covered. He asked DM Marsland how he would cover the South Barrier and he replied that he would use the north side CSA. 44DM Tanious stated that Mr Boff continued to yell and argue with him, and moved towards him closer than was comfortable and DM Tanious told him "I'm not arguing with you either you go down to the main barrier or you are going home". He responded by saying "You're an idiot you don't know how to do your job". DM Tanious asked him to repeat that he had just said and Mr Boff said "you're an idiot", after which he then left and walked towards the South Barrier. A short time later, around 06:19 am, he returned to the sign-on room and said that he was going to go off sick. DM Tanious asked him how long for and he replied "none of your business you're an idiot", in a loud voice and then commenced to inform DM Tanious how he should cover the shift. 45DM Tanious confirmed that Mr Boff eventually agreed to go to the South Barrier, he assumed he went but did not follow him, there were nine other staff signing on at the same time. He Two other people would have heard the exchange and others were coming in later. But again he was being called an idiot, that he didn't know how to run anything, didn't know how to manage a station. didn't deserve his job as a Duty Manager, all the same remarks and being screamed and yelled at him and the belligerence of refusing to go down and do essentially what he was paid to do, operate some barriers. 46DM Tanious said that he tried not to respond in a way that appeared aggressive and did not want to escalate anything. He found the incident humiliating and embarrassing. 47DM Tanious stated that Mr Boff then left the Control Room but returned a short time later and walked behind him into the SM's office, mumbled something he could not understand and came quite close to him as he was seated at the Station Support Officer's desk and when he did so he appeared to still be angry, was still ranting and he told him to move away as he had gone off sick and there was no reason for him to be there. 48DM Tanious reported the incident by email that same day to CSM David Screen. 49DM Tanious stated that at the time he asked Mr Boff to work at the South Barrier he was giving him a lawful direction and it was a reasonable request made to meet operational needs at the time. He considered Mr Boff's behaviour that day to be inappropriate. He went on to say that during the 12 months that he had supervised Mr Boff he had found his behaviour to be consistently inappropriate, and the performance of his duties on regular occasions, to be inadequate. It was a common occurrence that when he had to speak to Mr Boff about his inappropriate behaviour and lack of performance that he was in turn accused of harassing and intimidating him. DM Tanious had never been approached by management and spoken to about allegations of harassment and intimidation made by Mr Boff 50In cross examination DM Tanious said that there had not always been issues between himself and Mr Boff, more often than not he got resistance from him when he was asked to do something, other staff only had to be asked once. Mr Boff had called him an idiot before and DM Tanious had told him he did not appreciate that, and that he did not call either Mr Boff or anybody else names. 51DM Tanious maintained that Mr Boff had called him an idiot on 25 May over the two way, acknowledged that he did not say that in his email to CSM Screen as he was trying to remember the main points and didn't have the notes he later made the next day. 52DM Tanious acknowledged that he had in late 2010 checked the decision before the TAB concerning Mr Boff. He had not been on stations at the time that the incident had come up, but Mr Boff was continually bragging about how he beat RailCorp and they couldn't fix him. At the same time he picked up that there were issues with Mr Boff and he needed to understand where he was coming from. The decision was available on the Intranet. He went on to say that he spent a bit of time on the Intranet during a shift that would not interfere with his work and also looked at safety alerts and OH&S information between the functions he had running a station. 53CSA Vendruscolo in both her oral and written evidence essentially confirmed the events of the incidents on both the 25 and 26 May 2011, including the substance of the verbal exchanges between DM Tanious and Mr Boff in her memorandum to A/SM Mark Hall and her subsequent statement of 9 August 2011. She indicated, inter alia, that on the 25 May she had been in the Control Room with DM Tanious, saw Mr Boff on the other platform talking to the cleaners and heard DM Tanious' end of the conversation, including him asking him why he wasn't at his point of duty, could hear Mr Boff's voice, but not what he was saying, his tone was loud and aggressive, DM Tanious was calm and just questioning him. On 26 May she got to work about 5.30ish, was sitting in the office having coffee when the altercation occurred, DM Tanious was "calm;" Mr Boff's demeanour immediately became "defensive and aggressive"; he demanded to know why he had to work there and that he wasn't going to as it wasn't his master roster; when he came back to the Control Room he "aggressively" challenged DM Tanious; repeatedly demanded to know who was refusing duty by not working the South Barrier; told the DM he did not know how to do his job and was an idiot"; when asked to repeat that by the DM he did so; re-entered the Control Room stating he was going home sick again and became aggressive, repeating what he had previously said. 54CSA Vendruscolo stated that during the incident DM Tanious remained calm in response to Mr Boff's behaviour and at no time said or did anything towards Mr Boff to provoke his behaviour. She could not recall Mr Boff saying he would not work the South Barrier and confirmed his conduct was aggressive and he appeared upset. 55She also stated that CSA's were aware that they were to be at their point of duty which is the Control Room when not flagging trains, dealing with an incident or a wheelchair passenger. This was important to ensure that no calls were missed from the Signal Box or any other platform or station. The role required them to be constantly monitoring the Train Location System that is inside the Control Room and the plasma screens just outside the Control Room door. 56In cross examination she said she did hear Mr Boff call DM Tanious an idiot, but could not recall whether this was on 25 or 26 May. She thought it was the 26th, but could not be 100% sure. 57She also indicated that while she did not have to give Mr Boff directives, as a fellow CSA it was sometimes difficult to give him information so he could understand. She did notice that DMs and Team Leaders did have trouble communicating what they wanted from him. She did not know if he asked questions to explain things. 58CSTL Wallis described her duties and generally what the duties of a CSA were. She also confirmed the necessity of not moving away from the point of duty for no reason and that they often get calls on the phone or two way radio from other platforms and stations for things such as lost property and wheelchair requests. 59She had also supervised Mr Boff on many occasions and there had been times when staff had trouble raising him on the two way radio, although she could not pinpoint dates. She was aware that he would at times wander down the platform away from the Control Room and had told them on occasion that he had turned his two-way off. 60On 26 May when she was about to commence her shift at 6.25 am, Mr Boff saw her and told her she was going to have to work the South Barrier as no-one was there, he was going home sick and that he had been told to move from the North Barrier to the South Barrier. He then gestured upwards and said "that man's an animal" She didn't know what that was about; said she was not getting into it and told him she couldn't work there because of her medical restriction from shoulder surgery. He then said "well I'm on restriction to (sic)" and went on to say (after she repeated why she was on restriction), "well I'm going to the doctor and having restrictions put on, I can't do the barrier". 61She understood from that statement that he didn't like what the boss had asked him to do and was going home. His tone was very agitated . 62Her experience of working with DM Tanious was that she would speak highly of him. He was one of those people most staff respected. If there was any problem with management or anything to do with their job he would bend over backwards. She had never experienced any inappropriate behaviour, bullying or harassment from him and he was incredibly helpful when she returned from her surgery. She had also never observed him interacting in any way she would consider bullying or harassing towards any other staff member. He was always very, very polite, a good person. She had also never observed him behaving inappropriately towards Mr Boff. 63When she went to the office she heard that Mr Boff had had an altercation with DM Tanious and assumed that was whom he was referring to as "an animal". 64DM Marsland had worked the night shift commencing at 22:00 hours and due to sign off at 0600 hours on the 26 May. He was present during the altercation between DM Tanious and Mr Boff and subsequently completed a memorandum about the incident which he sent to SM Hall. He confirmed the staff shortage that day; that the South Barrier was the more important and busiest Barrier; that the normal practice was to close the North Barrier where there was less activity and interaction with customers and transfer that staff to the South Barrier. 65He confirmed in both his oral and written evidence that DM Tanious attempted to "explain" why Mr Boff needed to cover the South Barrier but he appeared "apprehensive" and after repeated explanation seemed to be "getting annoyed with every passing second". 66He also confirmed, inter alia, that DM Tanious told Mr Boff he was giving him a lawful direction; wasn't prepared to stand there and argue with him; DM Tanious asked DM Marsland to explain this again to Mr Boff; which he did; asked him to proceed to his point of duty; Mr Boff threatened to sign off sick; DM Tanious advised him that if he did not wish to comply with a lawful direction he was welcome to sign off; heard Mr Boff say he would not sign off but go to the car park and wait until the union staff arrived; he also mentioned "we'll see who gets signed off, I will get your pay"; he later heard Mr Boff tell DM Tanious he should have explained properly instead of acting like "an idiot"; he stomped out of the office saying something to himself that DM Marsland was not close enough to hear. 67He confirmed in oral evidence that he heard Mr Boff say that "I will get your pay". He did not know why he said that, but heard it clearly. He did not hear Mr Boff threaten DM Tanious but if one wished to refer to "I will have your pay" as a threat, then he heard that. If calling him an "idiot" was a threat, he heard that too. Mr Boff was not acting physically aggressive, but was very adamant about not complying with the direction. 68DM Marsland indicated that Mr Boff had always been polite with him when he had worked with him at Bankstown Station. He had no problems working with him, did have to have a talk with him about things he'd done, but he always was accepting of what he was told. At Strathfield he did have to call him into the office about not responding to the radio but that was the first time he had had to speak to him, he let him know he had to carry the radio and did not have any problem after that. 69DM Marsland acknowledged that it was not normal practice for a Duty Manager to attend work early and give directions to staff before signing on but that it would have happened even after 6 am once he took over the shift. He agreed that he was the officer in charge and that if a direction needed to be given to a staff member it would have been his role. 70He also indicated that he had never encountered staff essentially refusing to go to a point of duty, had not heard anyone like that before and it did surprise him. At the end of the day on the duty statement it says other duties as directed by the officer in charge. They weren't changing his location or his duties both were the same. Regardless of whether DM Tanious was giving him a direction before he had started his shift he would have given the same direction after he started. 71He confirmed that as he was the Duty Manager finishing night shift he would have left it for DM Tanious to make that decision because they needed someone to cover the South Barrier. 72SM Roffe had known Mr Boff for approximately two years. His statement concerned an incident that had occurred on the 30 March 2011 when he received am email from DM Mark Hall detailing an incident that day involving himself and Mr Boff after he had requested him to leave the North Barrier to attend to the South Barrier to cover a staff shortage. He told DM hall he could not attend there as he was fatigued and when DM hall spoke to him directly he stated that he was sick of working on the South Barrier. Mr Boff then commenced yelling at him. As he couldn't understand why he was yelling at him DM Hall phoned the CSM, Mr Boff continued to yell and the CSM stated he could hear the yelling. 73DM Hall had also reported to him that this was the second incident he had had with Mr Boff upon requesting him to perform a task. 74SM Roffe stated that the next day (31 March) he contacted CSM David Screen and it was agreed that Mr Boff would be required to be interviewed; the relevant union delegate was contacted and the interview took place that day. Mr Boff's behaviour was discussed and SM Roffe told him yelling at DM Hall was inappropriate and a breach of the Code of Conduct. Mr Boff explained his behaviour by saying it was a misunderstanding; promised he would not yell at staff members if further issues occurred, and that he would contact the SM or CSM personally to deal with any issues that may arise. 75He was also aware of another incident with Customer Service Manager Michael Merceica in 2010, (he was not sure of the dates) having received a memo from CSM Merceica, where Mr Boff was allegedly yelling at a fellow employee at Strathfield Station and a record of interview was conducted with the outcome being that if Mr Boff had any problems he was to contact himself or the CSM. He was also aware that it was communicated to Mr Boff that the letter constituted a formal warning and that if any further instances of inappropriate behaviour of this nature would be deemed reckless behaviour and may result in disciplinary action. 76SM Roffe said he himself was not present at the meeting but this information was conveyed to him in his role of Station Manager. 77In cross examination SM Roffe agreed that in relation to Mr Boff's concerns about working on the South Barrier he was told that Mr Boff had a sore hip or something, he did not know if the injury was reported. This was told to DM Hall in March. Usually things would be reported to the injury hotline and if it was, he would get to hear about it. He did not receive any notification to say Mr Boff had an injury. 78SM Roffe confirmed that DM Hall had sent him an Incident Report on 30 March about asking Mr Boff to work the South Barrier and being told by him he was fatigued. he asked him three times and wasthen told he sore hip from working the barrier was asked three times if he wanted to report it and when DM Hall did phone the Injury Hotline passing the phone to Mr Boff. When DM Hall subsequently rang the CSM to inform him about the matter, Mr Boff started yelling at him. This led to the interview of 31 March. 79SM Roffe also confirmed the evidence given about the set up and operation of the North and South Barriers. Evidence on behalf of the Appellant 80Mr Boff gave oral evidence in addition to his witness statement as filed (Exhibit 6) and in doing so expanded in some detail and at some length on the matters he had covered in his written statement. 81He also outlined his employment history with RailCorp including that he had had some issues with the manager at Berala which forced him to leave, had a fall at Newtown and had a few arguments with railCorp regarding his injury since 2005, couldn't hold a position and has 8 months off sick, his workers compensation was denied and he had not had a chance to settle it, it was now before the Commission. He has had to figure out how to deal with this pain and injury, so he got one of the bigger stations, accepted it but there were aches and pains and it had got to the stage where it was very bad. 82He did not have issues with any supervisors or staff while working at Strathfield because he could control himself and could see what they were getting at. He had no arguments except once with DM Tanious and twice with DM Hall and once with another CSA. He had enthusiasm for this kind of work but acknowledged that he could be loud when he explained himself and DM Tanious continually frustrated him until he yelled at him. He considered DM Tanious inflamed him and there were witnesses who would not come forward. 83In relation to the alleged incident of 25 May, he admitted that he got into an argument with DM Tanious over the telephone but did not admit that to bullying or harassing. He relied on what he had written in his 1 September 2011 letter of response on to the allegations as to the exchange of conversation between himself and DM Tanious (see Background and Chronology above). He stated that when he used those words he was not being sarcastic or rude to DM Tanious but thought it was reasonable to explain why he was not in the control room. 84Mr Boff stated that when he went back to the Control Room he called DM Tanious and asked what he needed him, for and despite asking him several times, he would not respond. He only said "you will know soon". The way that DM Tanious treated him made him feel embarrassed and belittled. He felt like DM Tanious was misusing his position of power over him and trying to find ways to get him into trouble. This made him feel very upset and insecure about the situation. 85Mr Boff stated that he felt that he was doing a good job by being out among the passengers. He had never been in trouble before for being outside the Control Room and could not understand why he was being treated like he had done the wrong thing. 86He denied yelling at DM Tanious, he was upset and maybe it was an angry outburst. He could not recall telling DM Tanious he was not fit to do his job. He did not recall that, he may have been capable of saying that but did not recall. 87Mr Boff felt that DM Tanious' bullying behaviour continued the next day when he stated that he should work on the South Barrier. He felt that he could not physically do the job on the South Barrier and questioned why he was being moved there. He reiterated that he was not angry when he first questioned DM Tanious but became upset after he threatened to sign him off and send him home. Mr Boff said he again felt threatened, embarrassed and belittled by DM Tanious and also felt like he did not know his rights and was not being treated properly. 88Mr Boff stated that he felt that DM Tanious was bullying him and he did not know how to respond and felt panicked. He agreed he argued with DM Tanious but did not feel that this was bullying and harassing him. Mr Boff felt that DM Tanious was bullying and harassing him and he did not know how to respond. At no time did he threaten to have the union take his pay, and at no time did he approach or move towards him. 89Mr Boff understood that he should have handled the incidents of 25 and 26 May 2011 better and that he should not have gotten into an argument with DM Tanious or raised his voice. He made these mistakes because he did not know how to respond to the pressure he felt DM Tanious was putting him under. 90He regretted calling DM Tanious an idiot. He called him that because of what he had done to him. If he was in control he would not have called him an idiot. If he was more concise today he would probably apologise to him for that. 91He considered that DM Tanious discriminated against him because he shouldn't have moved him from platform 6 and put him out side when there was someone who liked to hang around all day on platform 6. 92He also indicated that he was aware that he had the right as a union member to call the Union and did it, or had seen it, many times and that RailCorp employees were allowed to call the Union and could tell the manager they were going to call the union. 93Mr Boff maintained that there had been a number of incidents where he felt DM Tanious was bullying him and this had built up over a long period of time to the point where he and DM Tanious did not have a good relationship. He always felt DM Tanious was hostile to him and this made him worried when dealing with him. 94Mr Boff stated that the first incident occurred in December 2010 or January 2011 when he went into the office at Strathfield Station one night soon after he had started working with DM Tanious. He saw that DM Tanious had the decision from his previous dismissal case up on the computer. He referred to the case and said "you done well" in a very sarcastic way. Mr Boff asked him why he was looking at the decision and he said it was none of his business. From that time onwards he felt like DM Tanious was creating a bad atmosphere and trying to embarrass him. He also felt that he treated him less favourably when it came to rostering and duties and that he always criticised him and questioned what he was doing. He would regularly question what he was doing if he saw him in the office at the end of a shift and would tell him to get out. 95He denied bragging about it at work after he attended the Transport Appeals Board. 96Mr Boff stated that he did not make a formal complaint about DM Tanious' behaviour. He complained once to SM Rolfe (and believed that CSA Vendruscolo was also present) and was told that was the DM's way and he was encouraged not to worry. He did not believe any action was taken after he complained. 97Mr Boff stated that he was willing to try to resolve his issues with DM Tanious and to undertake counselling to help him respond when he felt threatened as he did when dealing with DM Tanious on these occasions. 98Mr Cartwright also tendered on Mr Boff's behalf a Medical Certificate from Dr Allen Turnbull, Orthosports Orthopaedic & Sports Medicine Service, dated 19 September 2012 (Exhibit 7) which reported on his medical condition as a result of his examination that day and indicated as follows: ......... he has worked with RailCorp in a fairly heavy job for several years which he has found increasingly difficult because he has developed low back pain, bilateral buttock pain and bilateral knee pain. 99Dr Evans indicated that he did not think he had significant hip arthritis and that it appeared he had some lumbar spine disease accounting for his back and buttock pain. Comments were also made as to the basis of his knee problems and that an arthroscopy would not make much difference and would not be recommended. 100In cross examination Mr Boff maintained that it was necessary to leave the Control Room to perform certain duties, important to carry on your duties, and that he was never very far from the Control Room and could hear the phone if it rang. He also acknowledged that the two way radio was used to contact each other and he either had it in his pocket on 25 May or it was attached to his belt he could not recall which. 101Mr Boff was asked a number of questions about what he had said to DM Tanious as reported by the DM and CSM Venduscolo in their evidence ("the whole platform is my point of duty")and maintained he could not recall saying that therefore it did not happen. he maintained he had said things over the radio because that was the only way he could say things to DM Tanious because he was always harassing him about doing his work etc. He acknowledged he spoke in a loud voice but didn't yell at him. DM Tanious was in a position "to inflame me in that position". he went on to say "it was very professional" 102He also maintained that CSM Vendruscolo's evidence was not credible as she was biased. People like her didn't want him to have his duties on Platform 3 and 4 as this was the only place where someone could have a wind down and have one platform to take care of.. 103Mr Boff generally complained about how DM Tanious treated him and asked him to do things that were unrealistic. 104Mr Boff maintained that on 26 May DM Tanious "menace me." He denied he said good morning to him. He also didn't provide him with any information about why he was being directed to the South Barrier. He didn't explain, he wasn't capable of explaining nicely, it was DM Marsland who explained the reason. 105He also maintained DM Tanious "inflamed the conversation" with the way he approached him. He sat with his back to him like he always did and didn't want to know you. 106Mr Boff admitted yelling at DM Tanious, understood it was inappropriate conduct and against the Code of Conduct - he was in "extreme duress", ill, and couldn't contain himself. His illness was aches and pains, his condition was deteriorating now. He agreed, partly that he didn't say anything about that to DM Tanious because he couldn't argue. He maintained that when he went downstairs he found he couldn't do the duties. 107He agreed that he reported fit for duty when he arrived at work. He was sick from the way DM Tanious treated him that was stress. He maintained that when he went downstairs he was trembling and asked them for a glass of water (at the ticket window). He was stressed out completely. 108He agreed it was not appropriate to repeatedly challenge DM Tanious and yell at him but he was sure he wasn't treating him equally. He agreed that he called DM Tanious an "idiot" twice but he had done a bit of criticism of him and was in a position of "coercive power to crush me". 109He agreed he told him he was going to wait for the union to arrive but denied he said anything about his pay. 110He denied that his behaviour was bullying and harassment of DM Tanious, he had "instigated" him into that stage of loss of himself. 111He acknowledged that he had read the Code of Conduct. When asked if he had treated DM Tanious courteously he said that he had not behaved courteously towards him. 112He said he had never made a formal complaint about DM Tanious, he had spoken to SM Roffe once but had spoken to HR . He did this immediately after he left work on the 26 May 2011. Prior to that he had spoken to a couple of staff and asked what was wrong with him and they said "don't worry he's like that". he agreed he had made no complaints. 113Mr Boff agreed that he had been spoken to previously and gave an explanation about an incident with another employee. 114When it was put to Mr Boff his conduct in yelling and making certain comments to DM Tanious on 25 and 26 May could constitute harassment and bullying under the Code of Conduct and was also disrespectful and discourteous he said he was not going to answer that question. 115Mr Boff agreed that he could give an assurance to the Board that if he got his job back he would not come under notice for the things like the allegations again. Submissions on behalf of the Respondent 116Ms Nand made oral submissions in addition to the written submissions as filed (Exhibit 1 and 2). 117Those submissions drew the Board's attention to the relevant provisions of RailCorp's Code of Conduct under the heading, '2. Acceptable behaviour and responsibilities' , which provides, amongst other things, that: RailCorp employees, contractors and consultants are to comply at all times with the behaviours outlined in this 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 work at RailCorp you must: Carry out your duties carefully, safely, honestly, courteously and fairly; Use RailCorp resources properly, efficiently and economically; Treat members of the public and colleagues fairly, consistently and with respect; Not knowingly make a false statement; and Carry out all lawful directions from managers/supervisors to the best of your ability. 118It was submitted that Mr Boff had attended briefings on the Code on 14 November 2006 and 23 March 2010 and therefore knew, or ought to have known, of his responsibilities under the Code at the time of his misconduct. Specifically, his behaviour as set out in the three allegations, was in breach of the Code in so far as he: Failed to comply with the behaviours outlined in the Code; Failed to act in the best interest of RailCorp; Failed to maintain and promote high levels of acceptable behaviour; Failed to maintain a culture that is just and fair to all; Failed to be ethical and comply with legislation, awards, policies, procedures, rules and job requirements; Failed to carry out his duties carefully, honestly, courteously and fairly; Failed to use RailCorp resources properly; Failed to treat colleagues fairly, consistently and with respect; and Failed to carry out lawful directions from managers/supervisors to the best of his ability. 119It was submitted that the RailCorp Dignity and Respect in the Workplace Procedure (the Procedure) also applies to Mr Boff's misconduct. The Procedure prohibits harassment and bullying and defined bullying as "repeated, unreasonable behaviour directed towards an employee, or group of employees" including (but not limited to): Persistent attempts to belittle and undermine a person's work; Undermining a person's personal integrity; Constant and unjustified criticism or monitoring of a person's work; Persistent attempts to humiliate a person in front of colleagues; Persistent attempts to demoralise a person; Cruel and unfair innuendo and sarcasm; and Verbal or non-verbal threats. 120It was submitted that by his actions towards DM Tanious, Mr Boff engaged in bullying and/or unreasonable behaviour that he knew, or ought to have known, was in breach of the Procedure. 121It was submitted that Mr Boff had pleaded not guilty of his Notice of Appeal but throughout the disciplinary process in his written responses he had admitted to aspects of the allegation particulars. Specifically, allegation 1c), 1e), 1f), 2a), 2b) and the words alleged in 3b), 3c) and 3d). Further in a conversation with management following the incident, Mr Boff agreed that he was aware that he had breached the conditions to which he had previously agreed - namely, not yell at staff and to document and/or report his concerns to management. 122It was RailCorp's submission that there was sufficient evidence, including that from witnesses DM Tanious, CSA Vendruscolo and SM Roffe, to substantiate the allegations as set out in detail in the Investigation Report. That evidence was then referred to and summarised particularly in relation to Mr Boff yelling at DM Tanious and calling him an "idiot" on 25 May. In relation to that, the evidence of DM Tanious was to be preferred. 123There was sufficient evidence to demonstrate that Mr Boff spoke to DM Tanious in a disrespectful, bullying and harassing manner on 25 May. DM Tanious initiation of the discussion on 25 may was in the context of reasonable conduct by him as a manager. 124It was submitted that any ambiguity in the evidence was due to the effluxion of time since the events. In all the circumstances Mr Boff's conduct was inappropriate and/or constituted bullying and harassment as defined in the Code of Conduct and Procedure on Dignity and Respect in the Workplace in that it was repeated during the incident, it was unreasonable behaviour which made DM Tanious feel belittled, humiliated and undermined and in the circumstances was inappropriate conduct of a subordinate to the manager. 125It was submitted that in relation to the second, the failure to follow a little unreasonable direction by Mr Boff's refusal to undertake duties as directed at the South Barrier, this was supported by the evidence of RailCorp's witnesses (CSA Vendruscolo and DM Marsland) who both said Mr Boff refused the direction. In the circumstances the direction was reasonable as it was a practice at Strathfield Station to cover an absence on the South Barrier with staff already rostered on the North Barrier. This practice was supported by the oral evidence of the RailCorp witnesses. 126In addition, Ms Wallis' evidence was that Mr Boff indicated that he would go to the doctor to get a certificate to avoid complying with the direction, this was her interpretation of the discussion with him. Mr Boff said he didn't refuse that he was actually sick but did not say that in his initial outburst and only after there had been several interactions between him and DM Tanious and at the end when he returned to the sign-on room and said he was going off sick. 127It was submitted that the evidence of RailCorp's witnesses was to be preferred as it was credible and there was no evidence of Mr Boff agreeing to comply with the direction or of saying words to that effect. 128The third allegation was about unacceptable behaviour towards DM Tanious which constituted bullying and harassment and/or inappropriate conduct and again the RailCorp's evidence supporting this was clear that Mr Boff moved towards DM Tanious and was aggressive, repeatedly came back to argue with him on 26 May and questioned the DM's competence and repeatedly called him an idiot during the incident. 129Ms Nand submitted that the point was taken that it was not inappropriate to go to the union with legitimate concerns but the way that Mr Boff put this to DM Tanious was that he threatened to go and sit outside in the car park and get the union and take DM Tanious pay, this was also in DM Marsland's statement and CSA Vendruscolo also gave evidence about the reference to going to the union which she took to be a threat as well. 130RailCorp's witnesses all gave consistent evidence that DM Tanious behaved calmly during the incident, that he was a highly respected manager whose staff had confided in him and had confidence to take their issues to him. In all the circumstances the evidence of DM Tanious, DM Marsland and CSA Vendruscolo was credible, consistent and should be preferred to that of Mr Boff. The conduct was clearly inappropriate, constituted bullying and harassment in breach of the Code and the Procedure. 131Ms Nand also submitted that it was difficult, if not impossible, to see how the medical certificate evidence tendered on Mr Boff's behalf was relevant to the two allegations which concerned Mr Boff's conduct towards DM Tanious. It had not been put on the basis that it was relevant to his refusal to follow a reasonable direction and in any event was too long, some sixteen months, after the event to be relevant. 132It was submitted that RailCorp's decision to dismiss Mr Boff was an appropriate response to the serious and repeated nature of his misconduct. He had a history of yelling at staff, for which he had been put on notice and was being monitored at the time of the incidents described in the allegations. He had also previously been dismissed by RailCorp for allegations of inappropriate behaviour and was re-instated by the Transport Appeal Boards on that occasion (see Boff and Chief Executive of RailCorp TD 109/09). 133RailCorp submitted that Mr Boff's history of inappropriate behaviour rendered the current allegations as more serious. He had specifically undertaken not to yell at employees as shown by the record of interview from the March incident, and undertaken to bring any concerns he had about others to specified persons. In addition, a year earlier in April 2010 he had been spoken to about similar conduct and again said this would not happen again and he would take steps to get counselling. He had not taken undertaken any efforts to reform his behaviour. He had not shown any unequivocal contrition or insight into why his behaviour was unacceptable. He made passing references to being sorry at various times but those apologies had always been equivocal and always qualified. He has never shown any insight into why his conduct would be perceived as unacceptable and bullying or harassment. 134It was submitted that Mr Boff had been given repeated opportunities to cease such behaviours and had failed to do so. There was no evidence before the Board that Mr Boff was unable to comply with the required standards of conduct in May 2011. The only medical evidence that had been tendered in these proceedings was that he went off sick after the events, claiming he was upset by the events, not that he was unfit for work prior to the commencement of duty or prior to the commencement of those incidents. He had not argued in any way that there was any condition that mitigated his engaging in the conduct alleged. 135It was RailCorp's strong submission that no one in the workplace should be asked to tolerate such outbursts of the kind that occurred on 25 and 26 May 2011. It was inconsistent with RailCorp's requirements and standards and unacceptable by any standard. Mr Boff's continued failure to recognise the inappropriate nature of his actions demonstrated a disregard for RailCorp's policies and procedures for which dismissal was the appropriate penalty and the Board should not allow Mr Boff's appeal. Submissions on behalf of the Appellant 136Mr Cartwright made oral submissions in addition to the written submissions as filed (Exhibit 8) and in doing so referred the Board to relevant evidence in support of those submissions. 137It was submitted that Mr Boff denied that he bullied or harassed DM Tanious but admitted that he did get into an argument with him. Mr Boff also denied that he refused a reasonable direction from DM Tanious. 138Therefore the Board's role in this appeal is to determine whether Mr Boff's actions towards DM Tanious constituted bullying and harassment and refusal of duty and, if they did, to determine whether dismissal was the appropriate penalty. 139Much of the interaction between Mr Boff and DM Tanious on 25 and 25 May 2011 appeared to be agreed between the parties. The real question for the Board was not to determine whether the altercation took place, but to determine whether the altercation between the two men amounted to bullying on the part of Mr Boff. 140RailCorp had provided a definition of bullying and harassment and had submitted that bullying and harassment was repeated, unreasonable behaviour directed at an employee and included persistent attempts to belittle and undermine a person's work or integrity, constant monitoring and criticism of a person's work, persistent attempts to humiliate or demoralise a person, cruel and unfair innuendo and verbal or non-verbal threats. 141The RTBU submitted that, while Mr Boff did become involved in an argument with DM Tanious, his behaviour and comments did not fall into the same categories of the types of behaviour listed above. That is, Mr Boff's actions were not repeated or persistent, they did not involve attempts to demoralise or undermine DM Tanious and they did not include threats. Mr Boff was merely responding to what he saw as a threatening situation. While Mr Boff's response to the situation he found himself in with DM Tanious was not perfect, it was far from bullying and harassment. 142Further, it was Mr Boff's evidence that it was DM Tanious who had bullied and harassed him over a long period of time. He had not formally reported it but did speak to the Station manager and was told "that's how John is". Mr Boff felt threatened by DM Tanious and this coloured his interaction with him and affected the way he responded to the DM. This was a relevant factor for the Board to take into account when considering Mr Boff's behaviour. 143Mr Boff had also said in evidence that DM Tanious was reading a Transport Appeals Board decision about him on the computer at work. He was cleared of any allegations that RailCorp put to him during that appeal and DM tanious said that he was just checking on Mr Boff and it was okay for him to check on employees at work to see who they are. 144It was submitted that it was not the role of a RailCorp supervisor/manager during work time to look through other areas and jurisdictions to see where employees had attended. This was part Mr Boff's belief that in doing this DM Tanious was bullying and harassing him and excluding him. 145Part of the reason railCorp had dismissed Mr Boff was that he told DM Tanious he was calling the union because his workplace had changed. Mr Boff and all union members had a right to call their union and for a manager to believe that was a threat and that the union will take his pay, unions did not work that way. DM Tanious was fully aware of that right and had been in the industry many years. Employees had the right to tell their supervisor/manager they intended to call the union and stand outside if they wish. That was not a threat against any manager. 146It was submitted that even if the Board were minded to accept that Mr Boff's behaviour towards DM Tanious amounted to misconduct, it was not misconduct that warranted dismissal, and dismissal should be considered harsh in the circumstances. 147Mr Boff was a long standing employee with over twelve years service and a good record. He was dismissed once before and this dismissal was found to be flawed by the former Transport Appeal Boards. It should be noted that the Board found the allegations against Mr Boff to be unsubstantiated in that case. Therefore, the prior dismissal should not be relied on to support Mr Boff's most recent dismissal in any way. 148It was submitted that Mr Boff had been open and honest with RailCorp throughout the disciplinary process. This had included making admissions that might be seen as being to his detriment. He had readily admitted to his mistakes and demonstrated a willingness to learn from them and move on. 149It was clear that there was a problem in the relationship between Mr Boff and DM Tanious that lead to the incidents of 25 and 26 May. It appeared that RailCorp had decided to dismiss Mr Boff rather than take reasonable steps to try to manage and resolve this conflict. 150It was also submitted that there were many things Mr Boff had not been able to recall and in his evidence had partially agreed it could have happened but he could not recall, it had been a long time. CSA Vendruscolo and CSTL Wallis had also said that Mr Boff was difficult to understand at times and he did have an issue with understanding people as was evident at different times during the hearing. It was also very difficult for Mr Boff to put what he intended to say back and at times did not come out the way he intended. The Board was asked to take that into account. 151It was submitted that if the Board was minded to impose a punishment on Mr Boff, then a different disciplinary measure should be used so that he had the opportunity to demonstrate he had learned from his mistake. There were a number of other options short of dismissal that were open to RailCorp and that were also open to this Board. 152In conclusion, it was submitted that while Mr Boff's behaviour was a mistake, it did not amount to bullying and harassment. Mr Boff should be returned to employment with full continuity of service and an alternative, and far lesser, punishment should be imposed. Submissions in Reply on behalf of the Respondent 153RailCorp relied on the evidence of CSA Vendruscolo, CSA Wallis, and DM Marsland and drew the Board's attention to the relevant oral evidence given during the hearing. That evidence supported the evidence of DM Tanious as to relevant events. 154RailCorp refuted the RTBU submission that the Board's role in this appeal was to determine whether Mr Boff's actions towards Mr Tanious constituted bullying and harassment. Allegations One and Three clearly charged Mr Boff with "unacceptable behaviour" by bullying and harassment and/or inappropriate behaviour. It was therefore open to the Board to consider that Mr Boff's behaviour, which he described as "getting into an argument", amounted to bullying, harassment and/or inappropriate behaviour. 155It was submitted that in any event there was sufficient evidence to establish that Mr Boff's behaviour was repeated and unreasonable, directed at DMs, and in particular DM Tanious and included persistent attempts to undermine his work or integrity. This therefore amounted to bullying and/or harassment. 156Further, it was submitted that regardless of the categorisation of Mr Boff's behaviour, the nature of the misconduct was sufficiently serious in the circumstances to warrant dismissal. RailCorp maintained that dismissal was the appropriate penalty for Mr Boff's actions and that the Board should not allow his appeal. 157It was also submitted that reinstatement was impractical as in Mr Boff's oral evidence alone, which was given in some detail, and on his written evidence, he had indicated that he had a number of issues with other managers at other stations and also with other staff at Strathfield Station. On that basis alone the dismissal should be upheld. Findings 158This 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 Boff. 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. 159Mr Boff in his Notice of Appeal has pleaded 'Not Guilty' and disputed 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 was 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. 160The Board has very carefully considered all the evidence, both written and oral, and the submissions of the parties. 161At the outset the Board would indicate that it is not considered that in any was did DM Tanious bully, harass or intimidate Mr Boff. He was simply carrying out his given and legitimate supervisory role in either querying and/or directing/instructing Mr Boff both on the 25 and 26 May 2011. 162The Board also has to observe that DM Tanious came across in both his evidence and demeanour, and through the evidence of other RailCorp witnesses, as being a person who would issue instructions in a calm, courteous, but efficient and businesslike manner, as is appropriate in a RailCorp Duty Manager. 163In contrast, Mr Boff through both his evidence and that of the RailCorp witnesses was prone to be argumentative, strongly opinionated and somewhat vociferous. 164There is no doubt, based on the evidence before the Board that Mr Boff's conduct on both the 25 and 26 May 2011 was entirely inappropriate. He belittled DM Tanious by calling him an idiot, challenged his authority, and indeed, undermined that authority in a very public way and broadcast to other staff and also by telling him he did not know how to do his job. 165Mr Boff may have had good reason (not that it was apparent from his evidence) to be away from the Control Room on 25 May, however he did not have the right to respond to DM Tanious in the way that he did. 166Similarly, on the 26 May, even if he had genuine concerns about performing duties on the South Barrier, that did not give him the right to react and respond as he did when he had given no explanation to DM Tanious in any civil and polite way about any difficulties that might have enabled the DM to give further consideration to the quite appropriate and reasonable direction he had issued to Mr Boff. Notwithstanding that DM Tanious was not due to start his shift until 6 am, it was entirely reasonable, and indeed commendable, for him to take appropriate action to ensure the South Barrier was going to be appropriately staffed as from 6 am rather that waiting until after the shift had started to take such steps as were necessary. The Board notes that DM Marsland supported his actions as being appropriate. 167The Board acknowledges that on 26 May, Mr Boff had the right to tell his supervisor/manager that he was going to call his union and wait for the union to come. However, he did not have the right to tell DM Tanious that he was going to have his pay taken and given to him. The Board accepts the evidence of DM Tanious and DM Marsland as to the thrust of this statement. That did constitute a threat and was entirely inappropriate. 168Nothing that Mr Boff has put forward in evidence excuses his conduct towards DM Tanious which was contrary to the Code of Conduct, and particularly contrary to the Dignity and Procedure in the Workplace Procedure. He showed a total lack of respect to his supervising officer, DM Tanious in circumstances where the Board considers that he was treated in accordance with both the Code and the Procedure by DM Tanious. 169If Mr Boff believed that in the carrying out of DM Tanious' supervisory and managerial duties he was bullying and harassing Mr Boff, or had any issues, then he had only to raise that matter with SM Roffe or his CSM as he had been directed to do only on 31 March 2011, instead of resorting to yelling as he had done on previous occasions. 170The Board also notes that the medical report tendered in evidence raised issues concerning his medical condition which were not raised with DM Tanious either on 26 May, or previously, and also were not raised during the disciplinary investigation in the written response from Mr Boff (1 September 2011), nor in his written response (3 April 2012) to RailCorp's "show cause" letter. 171When that report is considered it does in fact raise serious concerns about the practicality of Mr Boff working for RailCorp in the future as a CSA, quite apart from any issue of consideration of the appropriateness of the disciplinary penalty imposed. 172In the penultimate paragraph Dr Turnbull expresses the following opinion: Unfortunately with the pathology he has he is going to find it increasingly difficult to perform the duties that involve prolonged periods of standing or heavy manual work. I think he has reached the stage where this is not going to be possible and he will have to be retrained in something more sedentary. 173Mr Boff'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 Board also notes that he had been spoken to about just such behaviour (yelling at a Duty Manager) on 31 March 2011, only two months prior to the incidents on the 25 and 26 May 2011. 174Having carefully considered all of the evidence and the submissions the Board has concluded that the actions of Mr Boff did breach RailCorp's Code of Conduct and the Dignity and Respect in the Workplace Procedure and finds the three allegations sustained. The actions of Mr Boff were also contrary to his obligations as required under his position description and were so serious as to warrant dismissal. The Board notes that he was not summarily dismissed but paid five weeks pay in lieu of notice. 175The Board is not unsympathetic to the personal circumstances Mr Boff now finds himself in, but in that he is no different to any other employee dismissed by RailCorp. However his totally inappropriate behaviour towards DM Tanious which seriously undermined a Duty Manager's authority, was totally disrespectful and represented, in the Board's view, a serious breaches of RailCorp's Code and warranted the disciplinary outcome imposed by RailCorp. 176The Board does not therefore consider there is any justification for intervening in the decision made by RailCorp and intends to disallow Mr Boff's appeal. Order(s) 177The appeal of Jean-Luc Boff (TAB 12/208) 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: 11 May 2013