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. The Allegations 27The allegations contained in the correspondence to the Appellant dated 13 May 2011 are as follows: (1)That on 17 October 2010, at about 1 am at the Hanging Rock Family Hotel Bateman's Bay, as part of a work social golf trip, you engaged in inappropriate behaviour by physically striking fellow RailCorp employee, Mr Mark Facey, resulting in serious injury to Mr Facey including a fractured skull. (2)That on 14 November 2011 at about 12.45 am, whilst travelling on board Guardian Train Service 703T between Ingleburn and Campbelltown Railway Stations, you engaged in inappropriate behaviour by: (a)Refusing to produce a train ticket or employee travel pass to Transit Officers McKenna and Jones when they asked you to produce a valid rail ticket;\\ (b)Attempting to punch Transit Officers McKenna and Jones when they asked you to produce identification; (c)Verbally intimidating and threatening Transit Officers McKenna, Jones, Ogden, Perrett, Poivesan and Wain, saying words to the effect of: (i)"You don't know who your [sic] fucking with, your [sic] jobs are gone do you know Mick Drury?" (ii)"You're fucked; he will know all about this by Monday morning. You assaulted me. I'm going to make a lot of money out of this." and (iii)"Fuck you cunts are all fucking gone, you don't know who you're messing with, fuck you all." RailCorp Code of Conduct 28The Appellant's Ellipse History records demonstrate that he attended a Code of Conduct Briefing on 11 February 2010. 29The rules in the RailCorp Code of Conduct that pertain to the allegations are set out below: 2. Acceptable behaviour and responsibilities "We are all responsible for behaving positively" 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: * [...] * Always act in the best interest of RailCorp * Maintain and promote high levels of acceptable behaviour * [...] 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: * [...] * Treat members of the public and colleagues fairly, consistently and with respect 3. Safety - We put safety first RailCorp's Safety Vision is a "safe railway, a safe workplace, a safe culture". To achieve this vision we put safety first in everything we do, and have a Safety Management System (SMS) that enables us to meet this requirement. Our SMS also integrates the requirement of a number of pieces of legislation, particularly the Rail Safety Act and the Occupational Health and Safety Act. Employees are required to comply with the requirements/standards as set out in the SMS. Each RailCorp employee and contractor has a part to play in making sure that: * [...] * our work environment is safe and free from hazards * 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 * be prepared to work safely As a RailCorp employee, contractor or consultant you are responsible to: * exercise appropriate behavioural choices and report to work fit for duty * follow the safety procedures, rules and guidelines or instructions that apply in your workplace * report to a manager/supervisor any incident causing potential or actual injury, unsafe equipment or work practices * take care with your own safety and the safety of other people * comply with any reasonable request for giving aid or preventing a risk to others. 6. A discrimination, harassment and bullying-free workplace - "We value equity and diversity in the workplace" RailCorp is required by law to provide a work environment that is free from harassment, discrimination, victimisation and bullying. * You must not discriminate, victimise, intimidate or harass any other employees, contractors or members of the public for any reason. All employees shall take care of their own health and safety and the health and safety of others. While at work, you shall follow the safe working guidelines appropriate to your position, wear any protective clothing issued to you, and report to your supervisor any faulty equipment or other hazards in the workplace. RailCorp's Code of Workplace Standards 30RailCorp's "Code of Workplace Standards" requires the Appellant to advise of any criminal convictions: Acceptable standards of behaviour What are they? These are the minimum standards of conduct that are expected from staff i their day-to-day work. You are required to observe the following principles: ..... Examples of personal and professional behaviour include the following .... * report any criminal conviction that may be relevant to the performance of your job. RailCorp "Your Employee Travel Passes" Booklet (2005) 31Clause 34 of the RailCorp Enterprise Agreement 2010 entitles RailCorp employees to travel passes pursuant to the terms and conditions expressed in the RailCorp "Your Employee Travel Passes" Booklet (2005). The conduct described in Allegation 2, if proven, may also represent a breach of the terms of that booklet which provides, amongst other things: General Pass Conditions Employees using passes to travel are ambassadors of RailCorp. Their behaviour while travelling (both during and outside work hours) must be in accordance with the relevant sections of The Code of Conduct and must not bring RailCorp into disrepute. 32The conduct in allegation 2, if proven, may also represent a beach of the conditions printed on the employee travel pass which state: Conditions of Use ... Pass must be carried at all times when travelling and produced when requested by an Authorised Officer. Annual Employee Declaration 33The Appellant signed an Annual Employee Declaration on 22 June 2010 in which he acknowledged receipt of his Employee Travel Pass and acknowledged the following: I agree to comply with the above conditions; and I understand any breach of these conditions can result in disciplinary action, including dismissal. 34The Declaration, amongst other things, informed employees that: When you travel using your Employee Pass, you are an ambassador for RailCorp. when using your pass you must always uphold the values and professional standards outlined in the RailCorp Code of Conduct or other relevant Codes and Customer Service Commitment/Charter. Conditions of Use of Employee Pass The holder of this Pass agrees to comply with the relevant conditions of the Transport Administration Act 1988 and "Your Employee Travel Passes" Booklet (2005) including: [...] Holders should be courteous to fellow passengers at all times [...] thereby projecting a professional image of themselves and RailCorp. The Respondent's Evidence 35Ms Karen Suljic, Investigator, of Investigations Unit, General Counsel and Governance Group, provided a statement in the proceedings to which she attached the Investigation Report and all relevant business records pertaining to these proceedings. 36Attached to the Investigation Report was a memorandum written by Senior Transit Officer (STO) McKenna immediately after the incident on 14 November 2010. The report was typed up using contemporaneous handwritten notes which were also provided to the Commission. Those notes were contained in RailCorp Personnel Security Property Notebook TO 001186. He described the incident with the Appellant as follows: While patrolling a Guardian service, run 703T on the 13/11/2010 from Circular Quay to Campbelltown, an intoxicated male boarded the service at Ingleburn train station. I asked the male his destination and requested to see his ticket. He stated that he did not have a ticket, and with further questioning he did not have a valid reason for not having a ticket. The male became very aggressive, intimidating and was subsequently arrested for assault. He continued to threaten us saying that we did not know who we were dealing with and that we would be losing our jobs. Police attended at Campbelltown Train Station and obtained a Railcorp Travel Pass from the male. At no stage did he mention that he was an employee or produce his pass. It was here that it was discovered that he is employed as a Train Guard. He was conveyed to Campbelltown Police Station to be charged with two counts of common assault. 37In his statement to Police on the same day, STO McKenna provided a full description of the Appellant and stated that he had seen the Appellant at 12.40 am in car number N1544 board the train and take a seat in the vestibule area near the doors of the carriage. He approached the Appellant and had a conversation as follows: McKenna: How are you mate? Elleray: (No answer) McKenna: Where are you off to? Elleray: Where are you off to? McKenna: Campbelltown. Elleray: Good, I'm going to Campbelltown too. McKenna: Could I see your train ticket please mate. Elleray: No. McKenna: Why not, do you have a ticket? Elleray: No, I don't fucking have a ticket. McKenna: Any reason why you don't have a ticket? Elleray: I just don't have one. McKenna: Ok if you don't have a ticket I require you to state your full correct name and address. Failing to state our full correct name and address is another offence. Elleray: Yeah I will give you fucking details. McKenna: Do you have any ID to make things quicker? STO McKenna said that Mr Elleray reached behind to his back left pocket and then in a quick movement he jumped up out of his seat and stepped towards him and his partner, Ray Jones. He said he thought the Applicant was going to retrieve some identification from his back pocket. He described the Applicant's lunge as "a sudden movement, an aggressive movement". Ray Jones jumped back about 1 metre and called out "Get back". STO McKenna said, I had my left hand up with my hand open making a sign to stop. My right hand was held back and up with a closed fist. I yelled, "Get back and sit down". The male took a step back and sat down. Ray said, "Don't go doing stupid things like that you will find yourself under arrest". The male then jumped back up and stepped forward towards Ray and yelled "Come on cunt". At this stage I was in fear the [sic] he was going to strike Ray. I moved forward and conducted a check drill with my left palm into his chest causing him to fall back into his seat. I yelled, "Get back and sit down". The male then got back up out of the seat and held his right hand back with a closed fist as if he was getting ready to hit me. My other partner Scott who was not in our carriage during the first part of this incident entered the carriage as he was about to hit me. Scott grabbed the male around the waist and forced him back down onto his seat and restrained his arms. The male continued struggling and resisting. I yelled out "Stop resisting". The male continued to struggle by twisting his body and trying to regain control of his arms. The male yelled, "you don't know who you are fucking with, your jobs are gone, do you know Mick Drury". I said "Yeah". He said, "You're fucked; he will know all about by Monday morning. You assaulted me. I'm going to make a lot of money out of this. I'm going to have all this footage saved. Ray used our radio and called for backup and to have Police meet us at Campbelltown Railway Station. When the train stopped at Minto railway Station 3 other officers entered the train and joined us. With the assistance of the other officers we managed to get the male into handcuffs. Once he was restrained he started to yell, "Fuck you cunts, you cunts are all fucking gone, you don't know who you are messing with, fuck you all". I said "you are now under arrest. You do not have to say or do anything. Do you understand? The male just looked at me. I said "As anything you do say or do will be recorded and used in evidence in court. Do you understand?" He said "Oh I'm under arrest. Ok. Are you placing me under arrest?" I said "Yes". Adrian and Shane went to take the male off the train at Minto. I said "No we have Police to meet us at Campbelltown get him back on". The male started resisting and struggling. He said "No I'm fucking getting off here". We pushed him back on and made him get down on the ground and we laid him down on the ground. He said "Mick Drury will know all about this, what's your badge number? Where is your badge?" I said, ".....[provided]". He said "1, 2 fuck you. I asked for your badge number". I said, ".... [provided again]". He said "1, 2 fuck you. You cunts are fuckwits". He continued yelling and threats about us loosing our jobs. Once we got to Campbelltown we took him off the train and sat him on a seat and continued asking for my badge number. I then took out my identification and showed him. We then waited with the male until Police attended. At the time that male held his hand up towards me I believed he was going to assault me and hit. me. I did not give the male permission to assault me. 38The Rail Safety Act and Regulations 2008 empowers Rail Safety Officers to demand to see a train ticket and to demand that passengers who commit an offence against that Act to provide a correct name and address. 39STO McKenna stated that three infringement notices had been issued to Mr Elleray - one for his failure to produce ticket, another was for offensive language and the third was for failure to provide his correct name and address when directed by a Rail Safety Officer. The Appellant's Evidence 40Mr Elleray explained that, in relation to the conviction in the Liverpool Local Court on 24 October 2001, the incident occurred on 10 January 2001 at a time when he was experiencing family difficulties which had arisen as a result of his younger brother's attempted suicide on or about 6 November 2000. He had discovered his brother and resuscitated him prior to the ambulance service arriving The attempt had left his brother with severe brain injury. He contended that the incident with his brother was common knowledge amongst his peers and superiors at RailCorp. 41He was convicted of the following offences: "Resist Officer in the Execution of duty" which carries a maximum penalty of imprisonment for five (5) years; two counts of the offence "Assault occasioning actual bodily harm" each of which carries a maximum penalty of imprisonment for seven (7) years.. 42He recalled that he had advised Pat Duffield, his then Depot Manager, of the charge in a conversation held in the sign on room at Campbelltown Railway Station in or about February 2001. 43He also recalled that he had another conversation with Mr Duffield on the platform of Campbelltown Railway Station in late October or early November 2001 when he advised that the matter had been finalised, he had been fined and placed on a good behaviour bond. 44Neither of those conversations had been witnessed by anyone else. 45Mr Elleray explained that, in relation to the conviction in the Goulburn District Court on 6 May 2004, he had entered a guilty plea to "Drive vehicle recklessly/furiously/or speed/manner dangerous" and was placed on a good behaviour bond for a period of two years and was disqualified from driving for a similar period. 46He recalled that he had advised Michael Beckett, his then Depot Manager, of the charge in the meal room at Campbelltown Railway Station in or about early November 2003. 47He also recalled that he had another conversation with Mr Beckett on or about 18 December 2003 on the platform of Campbelltown Railway Station when he advised that the matter had been finalised and that he had lost his license for three years. 48Neither of those conversations had been witnessed by anyone else. In addition, he contended that the incident was common knowledge amongst his peers and superiors at RailCorp. 49In conclusion, in relation to both the above charges, he contended that he had complied with the RailCorp Code of Conduct by disclosing both convictions. 50In relation to the incident involving the travel pass, the Appellant confirmed that he had been charged by NSW Police, on 14 November 2010, with two counts each of "Assault Law Officer (not police)" and "Common Assault" and one count of "Resist Officer in execution of duty", 51He recalled that he had advised Ms Suzanne Strike, his then Depot Manager, of the charge by telephone on or about 15 November 2010. 52When the proceedings came before Campbelltown Local Court he had pleaded "Not Guilty" to all of the charges. In relation to the two counts of "Assault Law Officer (not Police) charges ", one was withdrawn on or about 9 November 2010 and the other was withdrawn on 10 November 2010. The charge relating to "Resist Officer in Execution of Duty" was withdrawn on or about 9 November 2010. The Common Assault charges were the subject of a contested hearing on 2 April 2012 and were subsequently dismissed by the presiding Magistrate. 53Mr Mark Shrimpton, train driver, gave evidence in which he stated that he has known the Appellant since he was a guard at Campbelltown. He said that, on the day of the incident, he first saw the Appellant on the platform at Ingleburn. When the train pulled up at Minto, it seemed to sit there for a while and then he heard yelling. He locked up his cabin and went to investigate. He stated that it was his practice to turn the air-conditioning right down and have the windows open in his cab and therefore he was able to hear the yelling in the cabin where the Appellant was. 54He walked down to the third carriage and looked in. He saw the Appellant laying face down in the vestibule area with about five or six transit officers around him. He said he leaned over and tapped the Appellant on the shoulder and asked him if he was alright. He said the Appellant looked up and him and started to yell something. He did not hear what was said - only yelling going on. He said he did not see anyone physically holding the Appellant down. 55Mr Shrimpton confirmed that it was a millennium train and each carriage was fitted with six closed circuit TV cameras. He was not aware that there was anything wrong with the cameras on that shift as a red bar would flash across the top of the screen on his instrumentation panel if any of the cameras was not working. Submissions 56The Respondent contended that the allegations were thoroughly investigated and appropriately substantiated. It was submitted that the evidence is cogent and compelling that the Applicant did engage in the conduct described in Allegation (2) above. 57The Appellant was employed as a Guard at the appropriate time. His actions, therefore, amounted to a significant breach of the Code of Conduct, the Travel Pass Terms and Conditions. 58The Respondent pointed out that his conduct would have been found to have been totally unacceptable if carried out by a member of the public. It was, therefore, more concerning that not only was the conduct carried out by an employee, it was aimed at his colleagues thereby having the potential to publicly bring the Respondent into disrepute. 59The Respondent pointed out that Regulation 15 (1) of the Transport Administration (Staff) Regulation 2000 (now repealed) and Regulation 31 (1) of the Transport Administration (Staff) Regulation 2005 (now also repealed) but in force at the relevant times, echoed the entitlement in RailCorp's Code of Workplace Standards that the Respondent was entitled to take disciplinary proceedings against an officer who is convicted of a serious criminal offence. Both Regulations defined "serious criminal offence" as meaning "an offence committed in New South Wales that is punishable by imprisonment for 6 months or more or an offence committed elsewhere that, if it had been committed in New South Wales, would be an offence so punishable". The offences of which the Appellant was convicted fall into that category. 60The Respondent pointed out that the Appellant was aware of his obligations pursuant to the Code of Conduct and the conditions upon which his travel pass was issued. He was expected to act in a manner that was compliant with the Code even when he was off duty. 61The Respondent contended that the Appellant's actions in not only refusing to produce a train ticket or travel pass to Transit Officers when requested to do so, but also attempting to punch Transit Officers when asked to produce identification and verbally intimidating and threatening Transit Officers, was completely unacceptable and constituted misconduct, a breach of the Travel Pass Terms and Conditions and a breach of RailCorp's Code of Conduct, the provisions of which are set out above. 62The Respondent submitted that if either of the allegations made by the Respondent are sustained by the Commission, then it must find that dismissal was an entirely appropriate remedy irrespective of the Appellant's length of service. 63The Respondent pointed out that, even though it had grounds to summarily dismiss the Appellant for his conduct, it had, nevertheless, given the Appellant the benefit of four weeks' pay in lieu of notice. 64In summary, the Respondent pointed out that: * the respondent needed to have confidence that its employees, when on duty, and at all times when travelling on their travel pass, whether on or off duty, act in accordance with its Code and set an example to members of the public; * the Appellant had, at best, failed to deny the allegations throughout the investigation or, at worse, been unco-operative; * the Appellant had not expressed any remorse or contrition for his conduct or expressed any level of regret to the six Transit Officers who had been subjected to his actions and abuse; and * it is not in the public interest for an employee who has taken the following actions to remain in the employ of the Respondent: * refused to produce a train ticket or travel pass when requested by a Transit Officer to do so; * attempted to punch a Transit Officer; * verbally intimidated and threatened Transit Officers; * failed to notify the Respondent of five criminal convictions; and * failed to take responsibility for his actions. 65In response to a Notice to Produce issued by the Respondent, the Appellant did not produce bank records in his name indicating that his pays were paid direct into his de facto's partner's account. He provided documents attesting to the income he received from other employment for the periods 27 July 2012 to 28 September 2012 and from 18 October 2012 to 12 December 2012. He did not provide any evidence of income, or lack thereof, for the period 9 July 2012 to 27 July 2012 and 28 September 2012 to 18 October 2012. 66The income that was received totalled $12,941.56 being income from Australia Post and CVS. That sum was in addition to nearly $7000 received from RailCorp. The Respondent submitted that, should the Board be minded to reinstate the Appellant, then he should not be awarded back-pay as he has not suffered any great loss of income since the termination of his employment with RailCorp. 67It was submitted on behalf of the Appellant that there has not been any issue with the use of his rail pass over the 14 years that he has had access to one nor was there any issue with his competence as a train guard. The only issue the Respondent had was with his alleged failure to report the previous convictions. 68It was pointed out that the Appellant had given evidence that he had reported the previous convictions. It was also pointed out that the Respondent's witnesses had given evidence that they could not recall whether they had been advised of his convictions - they had not categorically stated that they had not been advised. 69Surprise was expressed that the RailCorp staff had not made attempts to identify the adult civilian who had been on the platform looking into the carriage where the incident occurred. It was pointed out that there were six train guards and a train driver and therefore, there was ample opportunity for one to obtain personal details from that civilian. 70The Appellant gave evidence that he had spoken to his Supervisor and sought the CCTV footage when he advised her of the incident with the transit officers. 71The best evidence in this case would have been the CCTV footage of the incident which should have been available considering that it was a guardian service and has been advertised as having security cameras and lock down procedures to make it safer for the public to travel at night. The Respondent failed to provide that evidence through no fault of the Appellant. 72It was submitted that it could be argued that, in the absence of the CCTV footage, there is a cover up by the transit officers. 73Doubt was cast as to why the Appellant got up of his seat where he had been sitting minding his own business without incident when the transit officers approached him. He could have been attempting to stand up to retrieve his train pass from his wallet in his back pocket. The transit officers, it was submitted, may have misinterpreted his actions. 74The Appellant submitted that it was odd that, despite the two officers being in close proximity to him and, according to their evidence, being in fear of being struck by the Appellant, there was sufficient time for Officer Ogden to press the button, wait for the interconnecting door to open and walk about 3 metres to the Appellant and grab him. The delay in allegedly subduing the Appellant cannot be explained by the Respondent. 75The CCTV footage from Minto Railway Station did not portray the Appellant as a man who was struggling. Yet the Transit Officers had taken him back on the train and must have pushed him down to the floor of the carriage because his hands were handcuffed behind his back - an action which, it was submitted, was an exaggeration. There was evidence from the Train Driver, Mr Shrimpton, that the Appellant was not struggling. 76The CCTV footage from Campbelltown Railway Station also did not portray the Appellant as a man who was struggling. The footage showed the Appellant being taken to a seat on the platform. He sat down and waited some 35 minutes for Campbelltown Police to show up, take the cuffs off and walk him off the platform for charging and processing at the local station. 77The Appellant submitted that one can expect a person who is upset to threaten to make a complaint against government employees to one or more of various bodies. 78It was pointed out that the recollections of some of the Respondent's witnesses was far from satisfactory and were inconsistent. 79The Appellant acknowledged his criminal history but pointed out that they were in the past at a time when he was under a great deal of stress because of his brother and his injury. As for the drink driving matters, they did not relate to his employment in any way except that the Respondent alleges that they were not reported to management. In that regard the Appellant relied on the Full Bench decision in Public Employment Office Department of Attorney General and Justice v Silling [2002] NSWIRComm 118. 80It was submitted by the Appellant that the primary remedy sought was reinstatement with back-pay. However, if some penalty ought to be applied, then the period he has been off work was sufficient penalty. The Findings 81The Board would have been greatly assisted by the provision of the CCTV footage of the incident within the carriage. The absence of that CCTV footage, particularly on the Guardian Service, is particularly unhelpful. 82It is noted that printed on the back of the Appellant's Travel Pass are a number of conditions of use including the following bullet point: * Pass must be carried at all times when travelling and produced when requested by an Authorised Officer. 83A booklet titled "Your employee travel passes - a guide to entitlements and their use" issued in November 2005 relevantly provides that: Employees using passes to travel are ambassadors of RailCorp. Their behaviour while travelling (both during and outside work hours) must be in accordance with the relevant sections of The Code of Conduct and must not bring RailCorp into disrepute. when a pass is used for travel it must be carried at all times by the pass holder. Upon receipt of an Employee Pass, the pass holder must sign a Conditions of Pass Usage form. 84The Appellant signed an Annual Employee Declaration on 22 June 2010 in which he acknowledged that the Travel Pass is a valuable benefit to staff. In addition, he acknowledged the following: * When you travel using your Employee Pass, you are an ambassador for RailCorp. When using your pass you must always uphold the values and professional standards outlined in the RailCorp Code of Conduct or other relevant Codes and the Customer Service Commitment/Charter. 85The Appellant was carrying a travel pass. Even if I accept the Appellant's submission that when he stood up and reached behind him it was to pull out his wallet and produce his travel pass, I cannot understand why, in all of the time he was in the company of the transit officers, he did not see fit to advise them verbally that he was an employee of RailCorp and had a travel pass. 86Mr Shrimpton pointed out that when he arrived at the carriage and saw the Appellant lying on the floor, he was not struggling. Yet Mr Shrimpton gave evidence that it was the noise he heard from that carriage that caused him to lock his cabin and walk back to see what was going on. 87The Appellant did not, in the statement provided in the proceedings deny his conduct on the train. He relied purely and simply on the fact that he had entered pleas of "not guilty" to the charges that had been pursued by the Police and that those charges had been dismissed. The Appellant was not helpful to the Board - not by what information he provided to the Commission but by what information he withheld. 88On balance, I find, on the evidence set out above, that the Appellant had breached his obligations in relation to the Travel Pass, his conduct had the potential to bring RailCorp into disrepute had the incident occurred at a time when more members of the public were around and if they became aware that he was a RailCorp employee. 89Transit Officers are employed to ensure that the Rail System is safe for the public to use and to ensure that the public pay for the service and not obtain free rides on the tax payer. They have a right to expect that they will be respected for the work they do and not be subjected to abuse, particularly by their fellow work mates. I do not doubt from the evidence that the Appellant had to be subdued in the course of their carrying out their functions. 90Having said that, I accept that the CCTV footage, which should have been made available, would have put the incident beyond doubt had it been produced. 91I note the appeal decision in Silling. I accept the reasons provided by the Appellant in relation to the matters heard in the Local Court and note the time that has lapsed since the offences were committed. 92It is noted that the Appellant has been employed by at least two employers since his dismissal from RailCorp and note that he was in gainful employment as at the hearing and was well remunerated for his work. That is to be commended as he is obliged to mitigate his losses. 93On that basis, I propose to re-instate the Appellant to his former position effective from the start of the next shift roster with no order as to back pay but with continuity of service save for the break in employment. ORDER 94The appeal of Mr David John Elleray against the disciplinary action of dismissal by RailCorp is allowed. 95Mr David John Elleray is to be reinstated to his former position effective from the start of the next shift roster with no order as to back pay but with continuity of service save for the break from the cessation of his employment to the re-commencement of his employment on the next shift roster. I Tabbaa AM 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: 09 May 2013