David John Elleray and Rail Corporation of New South Wales ("RailCorp") [2013] NSWTAB 3

Transport Appeal Boards New South Wales Medium Neutral Citation: David John Elleray and Rail Corporation of New South Wales ("RailCorp") [2013] NSWTAB 3 Hearing dates: 12 & 13 December 2012 Decision date: 07 May 2013 Before: Tabbaa, C AM (Board) Decision: Appeal allowed Catchwords: Appeal against dismissal; Alleged breach of RailCorp Code of Conduct; Alleged breach of RailCorp's "Code of Workplace Standards" for failure to advise of criminal convictions; Alleged breach of RailCorp "Your Employee Travel Passes" Booklet (2005) for failure to produce travel ticket or travel pass to Transit Officers on request; Verbally intimidating and threatening Transit Officers; No denial of allegations; No remorse or contrition demonstrated; Legislation Cited: Industrial Relations Act 1996 (NSW) Transport Administration (Staff) Regulation 2000 Transport Administration (Staff) Regulation 2005 Transport Administration Regulations 2005 Cases Cited: Public Employment Office Department of Attorney General and Justice v Silling [2002] NSWIRComm 118 Category: Principal judgment Parties: Ms S Talbert (RailCorp) Mr P Doyle (Appellant) File Number(s): TAB 255 of 2012

DECISION

Introduction 1This is a decision in an appeal against the decision of Rail Corporation of the New South Wales ("RailCorp") to dismiss Mr David John Elleray from the position of Guard. 2Mr Elleray commenced employment with RailCorp on 9 September 1996 as a Station Assistant Class 1. On 19 August 1997, he was promoted to the role of Guard Relief. On 3 March 1999, he commenced in the role of Guard and continued in that position until his dismissal. 3The Appellant was dismissed from employment on 9 July 2012 for alleged breaches of: * The RailCorp Code of Conduct; * The terms and conditions expressed in the RailCorp "Your Employee Travel Passes" Booklet (2005); and * The RailCorp Enterprise Agreement 2010. 4The alleged breaches relate to an incident which ensued on 14 November 2010 while he was approached by Transit Officers patrolling Guardian Service 703T and asked to show his ticket. The Appellant was charged with two counts of Common Assault as a result of that incident. The Appellant entered a plea of not guilty to the allegations. 5The incident led to an investigation by the Respondent. During that investigation, the Respondent became aware that the Applicant had what appeared to be undeclared criminal convictions, including for assault causing the Respondent to initiate a further investigation. Both investigations were conducted simultaneously. 6A number of allegations were sustained against the Appellant as a result of both investigations. The Respondent held that the view that the allegations were thoroughly investigated and appropriately substantiated. 7On 15 November 2010, Ms Danielle Mesa, Manager Business Partners, wrote to the Appellant advising that a disciplinary investigation was being conducted and that he was temporarily suspended with pay with immediate effect and until further notice in accordance with Section 38 of the Transport Administration Regulations 2005. The suspension was a result of information provided by the NSW Police Force on the previous day. He was advised that an appeal to the Transport Appeals Board (TAB) against the suspension was available to him providing it was lodged within21 days of receipt of that notice.. 8The Appellant was advised, by letter from Michael Ashwood, Investigator, dated 28 April 2011, that due to the complexity of the investigation, the Respondent was still in the process of completing its enquiries into the allegations. He undertook to contact the Appellant again within six weeks to confirm progress. 9On 13 May 2011, Michael Ashwood wrote to the Appellant outlining the allegations that were being investigated. The 4-page letter set out, in detail, the sections of the Code of Conduct which may have been breached as well as the conditions under which the general travel pass had been issued to him. The Appellant was invited to respond to the allegations in writing within 14 days. He was cautioned that if he did not reply the investigations would continue in the absence of any reply. He was reminded of the disciplinary options available to the Respondent to apply and of the availability of an Employee Assistance Program (EAP). 10The Appellant did not provide a response to the allegations. 11The Respondent noted the lack of response, by letter to the Appellant dated 6 June 2011, and invited him to attend a disciplinary interview on 14 June 2011 in the interest of procedural fairness. He was advised that he was able to have a support person attend with him at the interview which was to be recorded electronically. The Appellant was advised that the investigation would continue in the absence of any verbal response from him. He was advised that a written report on the investigation may be forwarded to the DRP for recommendation as to what disciplinary action, if any, should be taken. The Appellant failed to attend that interview. 12Mr Karen Dhillon, A/Manager Business Partners, wrote to the Appellant on 16 August 2011 informing him that he was, from the date of that letter, suspended with pay on base pay until further notice. He was reminded of his appeal rights to TAB and of the EAP. 13Mr Stephen Hanna, Investigator, wrote to the Appellant on 14 September 2011, advising that, due to the complexity of the investigation, including his pending criminal hearing in November 2011, the unit was still in the process of completing its enquiries to relation to this matter. He undertook to write to the Appellant within six weeks to confirm progress. 14The Respondent wrote to the Appellant once again on 30 September 2011 noting that no response had been received to the allegations. The Appellant was once again invited to attend a disciplinary interview on 11 October 2011 in the interest of procedural fairness. 15Once again, the Appellant failed to attend the disciplinary interview scheduled for 11 October 2011. 16Ms Dhillon wrote to the Appellant on 12 December 2011 advising that he had until 16 December 2011 to provide a written response otherwise he will be suspended without pay. 17In the absence of a written response from the Appellant, the Respondent approved suspension without pay. 18Ms Suljic wrote to the Appellant on 3 February 2012 confirming the delay in the finalisation of the investigation as being due to the complexity of the matter and his pending criminal hearing. 19Ms Suljic found, on 19 March 2012, that, on the balance of probabilities, there was sufficient evidence to substantiate the allegation that the Appellant attempted to punch Transit Officers McKenna and Jones when they asked the Appellant to produce identification. She noted that: * the evidence of the six Transit Officers was consistent; * the Appellant was subsequently charged by NSW Police for his behaviour during the incident on 14 November 2010; * the Appellant failed to provide any response to the allegations; and * a review of the Appellant's personnel file revealed that the Appellant had not disclosed the convictions. 20Throughout the investigations, the Appellant failed to provide any response to the allegations and refused to be interviewed. At no stage did he deny or refute the alleged conduct. 21The Disciplinary Review Panel (the DRP), on 13 April 2012, reviewed the evidence and made a preliminary recommendation that the Appellant should be dismissed. As a result of that recommendation, Mr Tony Hinchon, Acting General Manager Customer Service CityRail North and Western, wrote to the Appellant on 19 April 2012 advising him that, on a preliminary view, it was appropriate that he be dismissed. Nevertheless, he was provided with fourteen days in which to make submissions in relation to the proposed penalty and to submit any further information or material that he wished to have taken into account. 22In response to a request from the Applicant, made on or around 2 May 2012, the Respondent granted a 14 day extension of time in which to respond. 23A response was received from the Appellant's Solicitors, John Stonham Lawyers, dated 17 May 2012. As a result, the Respondent caused Ms Suljic to interview people nominated by the Appellant as being in a position to support his account of events. The persons nominated were unable to assist the Appellant. Mr Duffield advised that he had no recollection of the Appellant advising him of the criminal convictions and said he would have immediately notified HR had the Appellant done so. Mr Beckett advised that he could not recall if he was informed by the Appellant about the previous convictions but said that he would have recorded such information in the Appellant's personnel file and would also have advised the Human Business Partner for the area - either John Banano and/or Wayne Williamson. Mr Banano is no longer employed by the Respondent. Mr Williamson provided a statement in which he denied being informed by the Appellant of any criminal convictions. Mr Beckett also advised that Ms Suljic reviewed the Appellant's personnel file and found no record of notification of any of the previous convictions. 24In addition, the Appellant sought to rely on the fact that the charges against him had been either withdrawn or dismissed. The Respondent held the view that it was irrelevant to these proceedings that the criminal burden of proof was not met in the Local Court proceedings. 25The DRP, on 5 July 2012, reconsidered the matter and confirmed their recommendation of dismissal. 26On 9 July 2012, Mr Dimitri Hondros, Acting General Manager Customer Service, Sector 3, signed the Appellant's letter of dismissal, effective immediately.