Transport Appeal Boards New South Wales Medium Neutral Citation: Nelson v RailCorp [2013] NSWTAB 2 Hearing dates: 24 October 2012 Decision date: 22 January 2013 Jurisdiction: Civil Before: Stanton C (Board) Decision: Appeal disallowed Catchwords: Suspension without pay - alleged breach of RailCorp Code of Conduct and Train Operating Procedures - appellant admitted to alleged conduct - contrite and remorseful - suspension appropriate penalty in all the circumstances of the case - appeal disallowed. Legislation Cited: Transport Administration (Staff) Regulation 2005 Work Health and Safety Act 2011 Cases Cited: Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Drake Personnel Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90IR432 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd [2009] AIRC 893 Lawrence and Coal v Allied Mining Services Pty Ltd [2010] FWAFB 10089 Category: Principal judgment Parties: Lance Edward Nelson (Appellant) RailCorp (Respondent) Representation: Mr T Costa, Rail Tram and Bus Industry Union, NSW Branch (Appellant) Mr D Davies Sparke Helmore Solicitors (Respondent) File Number(s): TAB 273 of 2012 DECISION Procedure 1This appeal was heard on 24 October 2012. Mr T Costa, solicitor, Rail, Tram and Bus Union, NSW Branch (the Union) appeared for the appellant, Mr Nelson. Mr D Davies, solicitor, appeared for the respondent, RailCorp. 2At the commencement of proceedings, RailCorp's written case, which included the Disciplinary Review Panel Report, was tendered to the Board. The Board also formally received the written submissions of the appellant. Background The Incident 3This matter concerns an appeal by the appellant against a decision made by RailCorp on 17 July 2012 to suspend him from duty without pay for two consecutive weeks. The appellant is a train guard who commenced employment with RailCorp on 10 June 1975. 4The incident that led to the decision to suspend the appellant occurred on 18 March 2012 when he was working on a train service from Gosford to Central Station. During the course of that journey, the appellant became aware that two family members, his niece Ms Joelene Cooper and her partner "Tom", were on board the train. The appellant subsequently accessed his mobile telephone's Facebook application to invite Ms Cooper and her partner to join him in the crew compartment at the rear of the train. 5While sitting in the crew compartment, Ms Cooper took a photo of her partner sitting in the Guard's seat and subsequently posted the photo on her Facebook page. Shortly thereafter, the photograph became the subject of a complaint made to RailCorp. The appellant contended he was unaware at the time that Ms Cooper had taken the photograph, nor was he aware the photograph had been posted on Ms Cooper's Facebook page. RailCorp Response to Incident 6RailCorp contended a train guard was required to observe safety protocols and related workplace policies at all times. The appellant's conduct that gave rise to the decision to suspend him for two weeks without pay was particularly serious given the role of a train guard. The appellant's conduct breached the RailCorp Code of Conduct and caused it significant reputational damage. 7RailCorp advised the Code of Conduct outlines the minimum standards expected of employees, contractors and consultants and states employees are accountable for their actions. In that regard, employees who breach the Code of Conduct may be subject to a hierarchy of disciplinary action including a caution, reprimand, suspension, warning or dismissal. The Disciplinary Investigation 8On 28 March 2012, Mr John Sharp, RailCorp's investigator, wrote to the appellant to advise a formal investigation would take place concerning allegations that he may have breached RailCorp's Code of Conduct. In further correspondence dated 2 April 2012, Mr Sharp set out the allegations in some detail. That correspondence directed the appellant to possible breaches of the Code of Conduct: * Section 2 - "Acceptable behaviour and responsibilities", * Section 3 - "Safety", * Section 8 - "Use of resources". 9The appellant was subsequently directed to respond to the allegations within 14 days. Mr Sharp provided the following documents to assist the appellant to prepare his response: * RailCorp Code of Conduct (Version 8.1) * RailCorp Discipline Procedure * Train Operations Manual - TOM Notice No 011-2011. 10The correspondence dated 2 April 2012 also set out the hierarchy of disciplinary action that RailCorp could take in response to a breach of the Code. 11During the investigation, the appellant agreed Ms Cooper and her partner travelled in the crew compartment between Cowan and Central Station. In correspondence dated 10 April 2012, the allegations against the appellant were amended: Allegation 1 On Sunday 18 March 2012, while acting in his capacity as a Guard on train service 290D, Mr Nelson engaged in unacceptable behaviour. The particulars are: On Sunday 18 March 2012, you were rostered on Standby at Gosford at 0500hrs. About 1010hrs, at Gosford, you commenced duty as a Guard on Train 290D to arrive at Central at 1140hrs. About 1025hrs, you forwarded a Facebook message to the Facebook account of Joelene Cooper, in which you wrote, "I think you could be on my train right now". About 1050hrs, you forwarded a Facebook message to the Facebook account of Joelene Cooper, in which you wrote, "Yep, my train come down the back if you want". Allegation 2 About 1050hrs on 18 March 2012, while acting in your capacity as a Guard, Mr Nelson permitted two persons, not properly authorised, to enter and/or remain in the crew compartment of train service 290D. 12A disciplinary interview was scheduled on 20 April 2012 and the appellant was invited to have a support person present at that meeting. 13In correspondence dated 20 June 2012, RailCorp advised the appellant that the allegations had been substantiated. The Disciplinary Review Panel determined the appellant's conduct warranted a final warning and suspension without pay for two consecutive weeks. The appellant was given 14 days to respond to the proposed penalty prior to a final decision being made. 14In an email dated 28 June 2012, the appellant acknowledged his actions had breached RailCorp's Code of Conduct. He also stated the matter had caused him personal stress and the penalty proposed would impose hardship. He admitted the incident on 18 March 2012 was an error of judgement and sought consideration of his 37 year career with RailCorp. 15On 17 July 2012, RailCorp confirmed it proposed to suspend the appellant without pay for two consecutive weeks. The Union filed an appeal pursuant to the Transport Administration (Staff) Regulation 2005 on behalf of the appellant on 19 July 2012. RailCorp Code of Conduct 16The relevant provisions of the RailCorp Code of Conduct are as follows (Exhibit R1-B): 2. Acceptable behaviour and responsibilities RailCorp employees, contractors and consultants are to comply at all times with the behaviours outlined in the 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, awards, policies, procedures, rules and job requirements. In your job at RailCorp you must: Carry out your duties carefully, safely, honestly... 3. Safety ... Each RailCorp employee and contractor has a part to play in making sure that: our customers enjoy safe, clean and reliable passenger services; our work environment is safe and free from hazards; and we work safely and don't endanger our colleagues. We share the four Universal Safety Responsibilities that define RailCorp's expectations of us to: * avoid taking unjustifiable risks; * avoid causing harm; * follow the Safety Management System; and * be prepared to work safely. As a RailCorp employee, contractor or consultant you are responsible to: ... * follow the safety procedures, rules, and guidelines or instructions that apply in your workplace; ... * take care with your own safety and the safety of other people . 17The appellant attended RailCorp Code of Conduct briefings on 27 April 2006 and 30 December 2009 (Exhibit R1-9). Respondent's Case 18RailCorp's evidence before the Board was set out in Exhibit R1 filed on 12 September 2012. Exhibit R1 contained a number of attachments including: RailCorp's written case in this matter. RailCorp Code of Conduct. RailCorp Discipline Procedure. Correspondence concerning the allegations. Disciplinary interviews and investigation. A statement from the investigator, Mr Sharpe. The Investigation Report. The appellant's Elipse Personnel History Report. The Train Operations Manual (TOM 011). Three items of correspondence issued in May 1992, July 1991 and January 1998 concerning certain disciplinary matters against the appellant. Mr Sharp's Evidence 19In his statement, Mr Sharpe deposed that the complaint subject to his investigation was provided on a confidential basis by a member of the public. Mr Sharpe stated the investigation found the appellant had breached RailCorp's Code of Conduct. In that regard, Mr Sharpe deposed that on 18 March 2012 the appellant permitted two unauthorised persons to enter and remain in a crew compartment of a RailCorp train service travelling between Wyong and Central Stations. Further, in the course of the investigation the appellant admitted that he had allowed Ms Cooper and her partner to enter the crew compartment of an Oscar class train and travel from Cowan to Central Station. 20During the course of the journey, Ms Cooper photographed her partner sitting in the driver's seat with his left hand on a control lever and later published the photograph on her Facebook site. The Facebook photograph contained the following caption: Tom in the driver's seat of the train. Yes I said driver's seat an yes the train was goin lol gotta love family xoxo A copy of the photograph was attached to Mr Sharpe's statement. 21As Ms Cooper and her partner were not RailCorp employees they were not authorised to enter a crew compartment of a RailCorp train service. 22During the course of the investigation the appellant admitted he was the Guard on train service 290D from Gosford to Central Station on 18 March 2012 and that he did exchange messages on Facebook with Ms Cooper. He further acknowledged that he had permitted Ms Cooper and her partner to enter the crew compartment used by the Guard at the rear of the train to travel from Cowan to Central Station. 23During the disciplinary interview conducted on 20 April 2012, the appellant agreed that he was aware that he was not permitted to allow members of the public to enter a crew compartment. He also formally identified the male person sitting in the driver's seat as Ms Cooper's partner "Tom" and said that Tom was holding the controls, "pretending" for the photograph. During the course of that interview the appellant also formally stated that Ms Cooper took the photograph of her partner sitting in the driver's seat, at that time, she was sitting in the Guard's seat. 24It was Mr Sharpe's evidence that RailCorp's TOM 011, dated 11 September 2011, prohibits unauthorised persons from travelling in a crew compartment at any time. A copy of that Manual was attached to his statement (Exhibit R1-10). 25Mr Sharpe deposed that RailCorp's Code of Conduct clearly sets out responsibilities for all RailCorp employees in respect of acceptable behaviour, safety and use of RailCorp resources. Further, TOM 011 specifically prohibited the access to crew compartments on trains by unauthorised persons. 26It was Mr Sharpe's evidence that the investigation found that on the balance of probabilities there was sufficient evidence to substantiate both Allegations 1 and 2. Accordingly the investigation report concluded: Mr Nelson has been found to have breached the RailCorp Code of Conduct by engaging in social Facebooked messaging when on duty on a train service and having breached the requirements of the Train Operations Manual (TOM 011) by permitting two (2) unauthorised persons to travel in a restricted area of a moving RailCorp train. 27The Investigation Report prepared by Mr Sharpe was subsequently referred to the Disciplinary Review Panel for determination. 28In his statement, Mr Sharpe also deposed the appellant had one prior misconduct matter recorded in his Elipse Personnel History Record. The appellant also had two further disciplinary matters recorded in his personal file which can conveniently be summarised as follows: (i)On 6 January 1998 Mr Nelson did not lock the door to the crew compartment, which he was required to do so as to prevent unauthorised access, when he vacated the train; and (ii)on 19 May 1992 Mr Nelson was counselled in relation to issues of the use of the train PA. 29Mr Sharpe stated that shortly after the finalisation of the Investigation Report he made further enquiries in relation to the possible consequences of a person activating the controls in the rear Guard compartment of a train. In that regard, he stated the following safety issues could arise in respect of the appellant allowing an unauthorised person to sit in the driver's seat and "touch" the controls: (i)The moving train may have been affected without the driver's prior knowledge; (ii)a moving train could have also been brought to a stop; and (iii)the train could have been caused by the unauthorised persons to start or move in the opposite direction if the controls were correctly activated whilst the train was stopped, for example, whilst loading and unloading passengers at a station. 30Mr Sharpe also stated that a train guard had particular safety responsibilities especially when the train was stationary at a station and passengers were entering and exiting carriages. In that regard he deposed that whilst it was not the subject of the allegations, the ability of the guard to perform these duties effectively may have been compromised had he been distracted by the unauthorised persons in the crew compartment. 31It was Mr Sharpe's evidence that he had conducted an inspection of an Oscar class train including the guard's compartment with RailCorp's Senior Operations Standards Manager: It was pointed out to me that a person sitting at the controls or sitting in the driver's seat could activate the emergency brake by simply pushing it a very short distance forward. There was also a number of buttons that could be pressed which would affect the lights, including warning lights. And could also press a button that would affect the pantograph which is the control mechanism that controls the electricity flowing into the train which could bring the train to a halt.(Transcript at page 7, Lines 49-50 and page 8, Lines 1-5) 32Mr Sharpe also contended there were a number of readily accessible buttons that could activate the park brake and also the emergency brake when the train is moving. 33In cross examination, Mr Sharpe confirmed Allegation 1 was based on the appellant's resort to Facebook messaging using a mobile phone whilst on duty, in addition to allowing unauthorised persons to ride with him. This conduct was in breach of Section 2 of the Code of Conduct, Acceptable Behaviour and Responsibilities. He agreed 'mobile phone' is not referenced in the Code of Conduct, but reiterated the appellant had breached the Code of Conduct in relation to safety by using his mobile phone. 34Mr Sharpe contended the restriction on the use of mobile phones set out in TOM 011 applied whether the appellant was entering the lead crew compartment or the guard's compartment. He also stated Section 2 of the Code of Conduct requires employees to obey the instructions they are given. 35Mr Sharpe confirmed he did not raise RailCorp's concerns that the appellant had caused it reputational damage during the course of the investigation meetings with the appellant. 36In re-examination, Mr Sharpe confirmed the letters of commendation set out in the appellant's statement were not tendered during the investigation interview. Appellant's Case 37Shortly stated, the appellant contended that the decision to suspend him for two weeks without pay was both unreasonable and disproportionate to the gravity of the offence. The Union urged the Board to consider the appellant's lengthy employment with the respondent, the hardship imposed by the suspension and his remorsefulness following the incident. Appellant's Evidence 38In a statement filed on 5 October 2012, the appellant deposed that he had invited Ms Cooper and her partner to join him in the guard's compartment because she was a family member and he did not see her very often. He offered Ms Cooper the guard seat as she was three to four months pregnant at the time. Her partner sat in the driver's seat. During the journey to Central Station, he "took turns standing" as they talked. 39The appellant deposed he continued to work on the train and do everything that was required of him in his capacity as a train guard. So far as having family members in the guard compartment was concerned, he did not see that situation was any different to those occasions when guards or drivers allowed workmates in the driver or guard compartment. 40It was the appellant's evidence that he was unaware the offending photograph was taken by Ms Cooper, nor was he aware that it had been posted on Facebook until he was advised of the allegations against him by RailCorp. In that regard, he immediately took steps to ensure Ms Cooper removed the photograph. 41It was the appellant's evidence that he was aware of the RailCorp rule that guards were not allowed to permit unauthorised persons to enter the guard's compartment. He was not aware of the name or the exact number of that rule. The appellant further contended the rule was not traditionally enforced and was usually left to the discretion of the guard or driver who they allow into their cabin. In his view, RailCorp was aware of this practice and he was unaware that any RailCorp employee had been punished for allowing persons such as family members or other RailCorp employees into the crew compartment. 42In relation to the use of his mobile telephone to access Ms Cooper's Facebook account on 18 March 2012, it was the appellant's evidence that he could not recall any specific safety briefings or meetings prior to the date of the incident concerning the use of phones or permitting persons into the guard's compartment. In relation to his mobile telephone use on 18 March 2012, the appellant contended he understood guards were not allowed to use a mobile telephone when the train was arriving or departing from a station. However in his case, he accessed his mobile telephone between stations. He also observed RailCorp had commenced briefings concerning mobile telephone usage following the incident. 43It was the appellant's evidence that in allowing Ms Cooper and her partner to enter the guard's compartment, he had made a mistake. He had fully cooperated with the investigation that followed the incident. 44In relation to Mr Sharpe's statement, the appellant made the following comments: (i)In the appellant's opinion, the movement of the train could not have been affected by Ms Cooper's partner "Tom" sitting in the driver's seat. The relevant hand control adjacent to that seat is locked and disabled. Further, "Tom" did not have a key to enable it. (ii)In relation to Mr Sharpe's contention that the moving train could have been brought to a stop, the appellant contended: Tom would not have been able to bring the train to a stop by placing his hand on the lever shown in the picture. He did not have access to the emergency brake. (iii)In relation to Mr Sharpe's statement that the train could have been caused to move in the opposite direction, the appellant contended this was not possible as the Guard would have to place a key in the master controller at the rear of the train to activate the controls. In addition, the Driver would have his key in the controller at the front of the train and in such circumstances, the Guard would not be able to activate the train. 45It was the appellant's evidence that he understood Ms Cooper's partner to be a responsible adult and in his view, her partner would not attempt to control the train from the guard's compartment nor commit any dangerous act. 46In relation to the disciplinary incidents that occurred in 1991, 1992 and 1998, the appellant sought to downgrade their relevance to these proceedings. 47It was the appellant's evidence that at all times he sought to treat passengers with dignity and respect. Moreover, during his 37 year career with RailCorp he believed he had taken his safety responsibilities seriously and he would never do anything intentionally to create a safety risk for passengers nor bring his employer, RailCorp, into any kind of disrepute. He also referred to a number of awards, commendations and congratulatory messages that he had received from both managers and passengers alike. 48The appellant considered the penalty severe and harsh and pleaded it would cause him detrimental financial impact and hardship, particularly in relation to his mortgage repayments and the fact that he had purchased a home for his daughter and her three children. He deposed he was obliged to assist his daughter financially in terms of rates, insurance and like expenses. 49The appellant also attached a statutory declaration sworn by Ms Cooper dated 14 September 2012 to his statement. In that statement, Ms Cooper deposed that she did not think the posting of her partner's photograph to her Facebook page would cause "any trouble". She deposed the appellant was unaware at the time that she took the photograph as he was undertaking guard duties and monitoring passengers' entry and exit at various stations. 50In cross examination, the appellant confirmed he was aware that on 18 March 2012 it was against his employer's instructions to allow unauthorised persons onto the train. He further confirmed he was aware of the TOM 011 requirement that unauthorised persons must not enter or remain in a crew compartment at anytime. 51The appellant agreed that when Ms Cooper and her partner entered the crew compartment, the partner at one stage sat in the Driver's seat with his hand above the emergency stop/brake lever. The appellant also confirmed that the Facebook photograph showed the partner in the driver's seat facing the appellant's back. 52It was the appellant's evidence that Ms Cooper did not post the offending photograph to her Facebook "friends" but rather posted it "personally" on her Facebook page. In that regard, the appellant contended that he had not seen the offending photograph prior to it being drawn to his attention as part of the investigation process. 53The appellant agreed RailCorp published a General Order on 8 April 2011 which stated, "mobile telephone usage should be limited to operational requirements and should not interfere with guard's roles and responsibilities while working". RailCorp's Submissions 54The appellant was suspended from his employment for a period of two weeks without pay after it was found that he had used his mobile phone to access Facebook while on duty as a train guard to invite two unauthorised persons to ride in the crew compartment. A photo of one of the unauthorised persons in the guard's seat was posted on Facebook by the other unauthorised person. RailCorp contended that the appellant's conduct was particularly serious given the safe working requirements of a train guard. 55During the course of the investigation, the appellant admitted to the conduct alleged by RailCorp. That conduct had the ability to cause RailCorp reputational damage as members of the public witnessed and/or were able to witness: (i) the unauthorised persons enter, sit in and/or exit the guard department and/or (ii) the image and subsequent captured comment on Facebook. The conduct alleged was also particularly serious because the appellant had been previously warned about preventing unauthorised persons entering the crew compartment. 56The appellant was obliged to cooperate with the investigation and his cooperation was not a mitigating circumstance. 57The appellant's prior disciplinary history includes the following matters: (i) He received a warning for misconduct after he failed to prevent the entry of unauthorised persons to the crew compartment of a train on 13 December 1997. (ii) The appellant was counselled concerning inappropriate use of a train public address system on 19 May 1992. (iii) The appellant received disciplinary action in 1991 comprising a $10 deduction in pay after he lost a RailCorp two-way radio. 58RailCorp submitted the appellant was briefed on the Code of Conduct on 27 April 2006 and again on 30 December 2009. During the course of the investigation the appellant admitted he was aware of the TOM 011 which in part states "unauthorised persons must not enter or remain in a crew compartment at any time". The appellant had previously received a warning for similar conduct and accordingly should or ought to have known of his responsibilities under the Code of Conduct and the TOM 011, together with the possible consequences of breaching those requirements. 59While the appellant continued to perform his ordinary duties with unauthorised persons in the crew compartment, those persons were unsupervised at those times. 60The respondent contended a fundamental duty of a train guard is to work in accordance with RailCorp's safe working requirements. The TOM 011 is a safe working practice which prohibits unauthorised persons from certain areas of RailCorp trains. The appellant's failure to follow safe working requirements and devote full attention to his ordinary duties is particularly serious given the safety role of the guard in operating a train. 61RailCorp submitted the publishing of the offending photograph and caption comment on Facebook increased the capacity of the appellant's conduct to become known to the general public and pose significant reputational damage to RailCorp, including its commitment to safety and security. RailCorp maintained that suspension without pay for two consecutive working weeks was the appropriate penalty for the appellant's conduct in breaching the Code of Conduct. The presence of unauthorised persons in the crew compartment created a foreseeable risk that the proper operation of the train could have been jeopardised. 62RailCorp denied the appellant's contention that it was customary prior to 18 March 2010 for guards to allow family members and/or unauthorised off-duty personnel entry into the crew compartment. It was also RailCorp's submission that the TOM 011 and the Code of Conduct clearly set out the disciplinary action applicable in the event of non-compliance. 63RailCorp argued it has an interest in promoting itself as a safe and efficient provider of public transport and is entitled to be concerned about potential reputational damage caused by a photograph of a non-RailCorp employee sitting in the driver's seat with his hand in the vicinity of a control lever while the guard is looking the other way. Moreover, RailCorp has a legitimate interest to ensure employees do not use its plant and equipment in a manner that might bring it into disrepute: Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd [2009] AIRC 893. 64RailCorp claimed the appellant contended there was no safety risk. However, the evidence of Mr Sharpe and the appellant was that they were in agreement as to safety risk. Firstly, the emergency brake can be activated by the lever being pushed forward - the lever was in the vicinity of Ms Cooper's partner's hand in the offending photograph. Secondly, there was another emergency brake lever behind the driver's seat which if pulled would activate a brake. Thirdly, there was a park brake. Fourthly, the pantograph which if lowered would bring the train to a gradual halt. Lastly, there is a marker lights switch that activates warning lights which indicate the direction the train is travelling. 65Mr Davies submitted the appellant's conduct raised a range of foreseeable risks. RailCorp's Code of Conduct clearly set out the obligations of employees concerning safety. In that regard, the appellant was aware of the TOM 011 instructions in relation to unauthorised persons. The appellant had received a previous warning concerning safety. 66RailCorp stated it had a statutory obligation to eliminate safety risk. The instruction that no unauthorised persons are permitted to enter the crew compartment is therefore a fair and reasonable one. 67The appellant's contention that custom and practice gave a guard discretion as to whether unauthorised persons were allowed in the crew compartment was not borne out by the evidence. 68In conclusion, Mr Davies argued the penalty was in the public interest. The Board should recognise RailCorp's requirement for a general deterrence towards a breach of its policies and procedures. It should also acknowledge the requirement by RailCorp to enforce and impose disciplinary action for breach of its safety policies and procedures. The appeal should be disallowed. Appellant's Submissions 69Mr Costa submitted the Board should favourably consider the appellant's early plea of guilty that on 18 March 2012 he used the Facebook social media application on his mobile phone to invite two family members to join him in the crew compartment to travel between Cowan and Central Stations. With reference to the photograph taken of Ms Cooper's partner "Tom", the appellant was unaware at the time that Ms Cooper had taken a photograph or that it was posted on Facebook. In relation to the specific allegations, the appellant was open and honest. He agreed with the particulars of those allegations that gave rise to his early guilty plea. 70It was the appellant's evidence that the penalty imposed was harsh and should be overturned on the following grounds: (i)He was open, honest and cooperative throughout the investigation. (ii)There is no evidence of RailCorp suffering any reputational damage as a result of his actions. (iii)There is no evidence of any other detriment, such as any safety risk, arising as a result of his actions. (iv)His actions should not be considered a serious breach and in fact this kind of 'breach' was knowingly tolerated by RailCorp through the past custom and practice of the workplace. (v)There is no evidence that he was warned, counselled or trained about allowing such people into the crew compartment in the past. (vi)He is a long standing employee with an excellent record. 71The appellant urged the Board to consider the fact that he willingly attended every interview with Mr Sharpe and answered all the questions put to him in an open, honest and cooperative manner. 72Insofar as the claim that the publishing of the relevant photograph to Facebook "posed significant reputational damage to RailCorp" Mr Costa submitted the appellant neither took the photograph or published it to Facebook. He was not aware that the photograph was being taken and noted the offending photograph taken at the time shows his back to Ms Cooper and her partner. Mr Costa further contended that the first time that the applicant knew about the photograph was when he checked Ms Cooper's Facebook page after receiving the allegation letter from RailCorp. He subsequently took immediate steps to have Ms Cooper remove the photograph. 73The appellant argued that if RailCorp wished to press its reputational damage claim, it needed to verify and test the complainant's evidence. In the absence of such evidence, the assertion of reputational damage must be disregarded by the Board and cannot be used by RailCorp to justify the harshness of its disciplinary decision. 74Mr Sharpe's claims that the presence of unauthorised persons in the crew compartment could "somehow control or affect the movement of the train", are not supported by any evidence nor is such information available to support Mr Sharpe's qualifications to give such evidence. 75Moreover, the appellant has 37 years of experience in the railway industry including over 20 years as a train guard. Against that backdrop of experience, the evidence of the appellant must be preferred over that of Mr Sharpe. Moreover, there is no evidence before the Board that the appellant did anything other than perform all of his duties diligently, safely and professionally whilst Ms Cooper and her partner were present in the crew compartment. 76It was the appellant's evidence that whilst he was aware of the rules concerning entry into the crew compartment, such rules were not traditionally enforced. The practice within RailCorp was that entry was left to the guard or driver's discretion and at times this may include family members, but more commonly, other RailCorp staff with no work related reason for being in the crew compartment. The appellant recognised that RailCorp had the right to have such rules in place. However, RailCorp is obliged to ensure that employees are aware of the rules and also aware that they will be enforced. 77It was the appellant's evidence that he could not recall any safety briefings or warnings concerning cabin compartment entry. He also understood that RailCorp only began warning employees about enforcement of such rules following the incident on 18 March 2012. In relation to RailCorp's reliance upon the incident involving the appellant that occurred on 13 December 1997, the appellant contended on that occasion the crew compartment door was faulty. Accordingly, the current allegations cannot be considered or associated with that earlier matter. 78In relation to the two other disciplinary matters relied upon by RailCorp, the appellant considered they were minor and are very much balanced by the number of awards and compliments from customers and senior managers that demonstrate he is a committed, proactive and professional employee who takes great pride in his work. 79In relation to the specific penalty imposed, the appellant urged the Board to consider the impact the penalty would have on his financial obligations and it's harshness particularly given the assistance he provides to his daughter. The appellant drew the Board's attention to the meaning of "harsh" provided by the Full Bench in Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [29-32]. 80The appellant submitted the punishment determined by the Disciplinary Review Panel was harsh and disproportionate to the gravity of the misconduct. The Board should take into consideration the personal circumstances of the appellant and his past good conduct. The proposed suspension should be set aside and replaced with an appropriate warning and any necessary re-training concerning the rules related to admitting persons into the crew compartment of a train. 81Mr Costa submitted the Board is required to satisfy itself that: * the allegations can be substantiated on the available evidence; * the misconduct alleged warrants disciplinary action; and * the penalty is appropriate punishment for the misconduct. 82Mr Costa conceded there are very few matters in dispute and for the most part the facts are not contested. 83The appellant admitted to the allegation that he allowed Ms Cooper and her partner to enter the train crew compartment at the first available opportunity during the investigation. His cooperation is consistent with what can only be described as an exemplary employment record. 84Mr Costa submitted that although the appellant agreed to the factual basis of the allegations, there was some confusion between the parties concerning Allegation 1 because it was described by Mr Sharpe in both correspondence to the appellant and in his investigation report as an allegation of unacceptable conduct. However, that conduct was not described in a particular manner. In that regard, Mr Sharpe in evidence said he intended the allegation to include both the use of a mobile telephone as a breach of the Code of Conduct, in particular the safety provisions of that Code and the fact that it included an invitation by Facebook to an unauthorised person to enter the train crew compartment. 85Mr Costa claimed there was no mention of a mobile telephone or its use in the investigation report. The particulars surrounding Allegation 1 included the use of Facebook messaging but did not explain or describe the use of a mobile telephone to be in breach of the Code. That allegation was not put to the appellant. However, the use of a mobile telephone at work is not a breach of the Code and a train guard has the ability to use such devices. In fact, the safe use of a mobile telephone is encouraged by RailCorp who provide work mobile phones to their train guards. 86It was the appellant's evidence that he was provided with a RailCorp mobile telephone and he regularly received calls while the train was moving from colleagues and senior RailCorp employees. If RailCorp sought to prevent a train guard from using a mobile telephone on a train, it would not provide them. Mr Costa stated this policy was in contradiction of Mr Sharpe's evidence in relation to Allegation 1 and there can be no finding that the use of a mobile telephone at certain times by train guards could be considered unsafe. 87Mr Costa urged the Board to determine whether the disciplinary punishment imposed by RailCorp in relation to the misconduct finding was appropriate in all the circumstances: Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[121]. 88The appellant's suspension without pay is unreasonable for the following reasons: There is a mitigating factor. The appellant admitted to the offence at the earliest opportunity and cooperated fully with the investigation. There is no evidence of any detriment arising from the misconduct to RailCorp. However, the appellant's case does concede there was a potential but minor safety risk by allowing unauthorised persons into the train crew cabin. On the evidence, the only real event that could have occurred was that if a button or a lever or a switch had been pushed, the train would have come to a stop or the lights at the front of the train would change. Mr Costa submitted such risks were relatively minor in the circumstances. Further, Ms Cooper and her partner were known to the appellant and trusted by him. 89There is no evidence that the appellant's conduct caused reputational damage to RailCorp: We submit that it's highly unlikely that a person would see such a photo and become concerned for their safety. Firstly, they'd have to know that the person was unauthorised and that they'd been allowed into that cabin and that they have no idea how to operate a train and they'd also have to know that the train was moving and the potential for risk if they moved a button or a switch or a lever. Without a lot more detail connected to the photo it's very hard for it to cause any concern or reputational damage. 90Mr Costa contended the appellant's 1998 warning concerning safety "was not a serious warning". It was a first warning, which by definition meant that it was not serious and was intended only to remain on the appellant's record for 12 months. His record of performance includes an extensive list of commendations. 91Mr Costa referred to the decision in Lawrence and Coal v Allied Mining Services Pty Ltd [2010] FWAFB 10089 where the Full Bench considered the relevance of the length of service of an employee as a consideration for making a reinstatement order. Findings 92The Board has carefully considered the evidence and submissions of the parties in this matter. 93There is no real dispute as to the facts and what occurred that gave rise to the appellant's suspension without pay for two weeks. 94Section 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. 95The appellant pleaded guilty to the allegations made by RailCorp. 96The Board is satisfied the appellant was afforded procedural fairness throughout the investigation. 97The Board considers the appellant has expressed remorse and regret for his actions. 98The Board finds the appellant's conduct was in breach of the Code of Conduct and the TOM 011 instructions. The appellant's conduct created a foreseeable risk that the operation of the train and the safety of other staff, passengers and the general public could have been jeopardised. 99The appellant's conduct that gave rise to the offending photograph being posted to Facebook had the capacity to cause RailCorp reputational damage. However, and fortunately for the appellant, there was no evidence before the Board that RailCorp had incurred reputational damage as a result of the incident. 100On the material before the Board, it was foreseeable that while he was sitting in the driver's seat, Ms Cooper's partner could have deliberately or inadvertently changed the train's directional lights, caused the train to slow and possibly stop without the driver or the appellant's immediate knowledge. The appellant's use of his mobile phone to access Facebook to contact Ms Cooper was not consistent with the RailCorp General Order published on 8 April 2011 which limited use to "operational requirements". 101The appellant pleads that his relatively good employment record with some 37 years service with RailCorp should be considered favourably by the Board. However, in the Board's view, the appellant's lengthy service is accompanied by an increased expectation that he would comply with RailCorp's policies and procedures at all times, particularly given he had received Code of Conduct training on two separate occasions. 102Compliance with the Code of Conduct and the TOM 011 instructions are essential to maintenance of train safety including the safety of staff, passengers and the general public at large. 103The Work Health and Safety Act 2011 relevantly provides the following obligations of employers and employees in relation to workplace health and safety, a breach of which attracts substantial penalties: Section 19 Primary Duty of Care (1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a)workers engaged, or caused to be engaged by the person; and (b)workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a)the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and ... (f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and ... Section 28 Duties of workers While at work, a worker must: (a)take reasonable care for his or her own health and safety, and (b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c)comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d)co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. 104The Work Health and Safety Act imposes an absolute liability on employers who "must ensure" the health and safety of employees and other persons. The plain and ordinary meaning of the word "ensure" is to guarantee or make certain: Drake Personnel Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 449. 105RailCorp must at all times have a safe system of work in place for all of its operations. Part of that duty requires it to have policies and other measures in place to minimise or eliminate risks to safety. It is mandatory that employees work in accordance with such polices, particularly once trained. 106The Board has considered the tests in relation to harshness of the penalty enunciated by the Full Bench of the Industrial Relations Commission in cases such as Department of Health v Perihan Kaplan [2010] NSWIRComm 65. 107It is my finding, taking into consideration all of the evidence before the Board, the appellant's suspension without pay for a period of two weeks is an appropriate punishment to impose and is fair in the circumstances. The public interest demands that employees must comply with the employer's policies. Those who breach such policies must be held accountable for their conduct. 108For the above reasons, and having considered all of the material, the Board has declined to grant the Appeal by Mr Nelson against the decision of RailCorp to suspend him without pay. Order(s) 109The appeal of Lance Edward Nelson (TAB12/273) is disallowed. J D Stanton 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: 04 February 2013