Industrial Relations Commission New South Wales Medium Neutral Citation: Bibby v Rail Corporation of New South Wales [2013] NSWIRComm 97 Hearing dates: 4 November 2013 Decision date: 08 November 2013 Before: Boland J, President Decision: The application by Mr Bibby to extend time to appeal in this matter is refused. I so order. Catchwords: APPEAL - Application for leave to appeal and appeal from decision of Transport Appeal Board - EXTENSION OF TIME - Whether applicant should be granted an extension of time in which to appeal - Whether explanation for filing application was satisfactory - Prospects of success on appeal - Extension refused Legislation Cited: Civil Procedure Act 2005 Industrial Relations Act 1996 Transport Appeal Boards Act 1980 Cases Cited: Ary v Sydney South West Area Health District [2013] NSWIRComm 96 Nanschild v Pratt [2011] NSWCA 85 Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Category: Principal judgment Parties: Daryle Bibby (Appellant) Rail Corporation of New South Wales (Respondent) Representation: Mr M Easton of counsel (Respondent) Mr R Christie (Appellant) Ms J Nand (Respondent) File Number(s): IRC 873 of 2013 DECISION 1Rail Corporation of New South Wales ("RailCorp") had employed Daryle Robert Bibby as a Senior Shunter. He was dismissed from his employment on 4 August 2012. Mr Bibby appealed against his dismissal to the Transport Appeal Board ("the TAB"). In a decision given on 8 August 2013 the TAB, constituted by Newall C, disallowed the appeal. 2On 28 October 2013, Mr Bibby sought leave to appeal, and if leave was granted, to appeal from the TAB's decision. At the same time, Mr Bibby made application to extend time to appeal. This decision deals with the application to extend time. Background 3Mr Bibby had been employed with RailCorp and its predecessors since 1990. His dismissal from employment was a consequence of an incident that occurred on 13 February 2012. An employee of RailCorp was struck by a train whilst it was being shunted. Mr Bibby was not in charge of the shunt, but rather that was the responsibility of another employee, Mr Frew. Mr Frew asked Mr Bibby and two drivers, Mr Kelly and Mr Atchison, to say he, Mr Bibby, was in charge, and left the accident scene. This was the story initially told to investigators. Later, Mr Atchison and Mr Kelly advised RailCorp that Mr Bibby was not in fact in charge of the shunt at the time the employee was injured, but rather that Mr Frew had been in charge. Both said that Mr Frew had asked them to say that Mr Bibby had been the shunter in charge. Mr Bibby later agreed he was not the shunter at the time of the accident, but that Mr Frew was. Mr Bibby, nevertheless, continued to insist he was in charge of the shunt as Mr Frew went to the toilet. 4The incident is described in the decision of the TAB: [7] A good deal of the factual evidence was not a matter of contest. I address some particular matters which were in contest below, but the following factual summary can be distilled from unchallenged evidence. [8] On 13 February 2012 Mr Bibby was working a shift as a shunter at the Hornsby Maintenance Centre operated by the respondent. [9] At about 11:30 that evening, a train was being shunted. In the cab of the train were a driver, Mr Peter Kelly, another driver, Mr Michael Atchison, and a shunter, Mr Jason Frew. Mr Frew was the shunter in charge of the shunt while it was taking place. [10] The train struck and injured a cleaner employed by the respondent, Mr Steven McIntosh. [11] The three employees in the train realised that something had happened. The train was stopped and Mr Frew, at least, alighted from the train and saw the injured employee lying on the ground. He spoke to Mr Bibby via the two way radio. He also spoke to the two drivers, Mr Kelly and Mr Atchison. In the conversations with the drivers Mr Frew expressly asked them to say that Mr Bibby had been the shunter on the train when the accident occurred. [12] Mr Frew then removed himself from the scene of the accident, although he remained at the workplace. [13] An ambulance was called for the injured employee - Mr Bibby says by him - and a more senior Rail Corporation employee, Mr Terry Clancy, Operations Planner, Hornsby Maintenance Centre, attended the incident, as did police. [14] Mr Kelly, Mr Atchison, and Mr Bibby told Mr Clancy that Mr Bibby was the shunter in charge of the shunt at the time that the cleaner was struck and injured. [15] Mr Clancy's unchallenged evidence was that Mr Bibby, Mr Atchison and Mr Kelly, speaking as a group, told him that they were all three of them in the cab at the time of the accident. [16] Mr Kelly, Mr Atchison, and Mr Bibby, in separate interviews, told police that Mr Bibby was the shunter in charge of the shunt at the time that the cleaner was struck and injured. [17] Mr Larry Arthur, Network Operations Superintendent, Hornsby Signal Control Centre, attended the site shortly after the incident. Mr Kelly and Mr Atchison told him that Mr Bibby had been in the cab of the train at the time of the incident. Mr Arthur said that Mr Bibby also told him that he was in the cab of the train at the time; Mr Bibby denied having spoken to Mr Arthur at all. I return to that matter below. [18] Shortly thereafter, Mr Kelly, Mr Atchison and Mr Bibby were each drug and alcohol tested in accordance with standing Rail Corporation procedures. They all returned negative results. [19] Mr Frew was not tested. Rail Corporation management was not aware that Mr Frew had been involved in the incident as a result of Messrs Kelly, Atchison and Bibby stating that Mr Bibby had been the shunter in charge of the shunt. None of the three employees, Mr Kelly, Mr Atchison, and Mr Bibby, told the Rail Corporation or the police that Mr Frew had been the shunter of the train at the time that Mr McIntosh was injured. [20] The respondent then began a safety investigation into the incident. [21] On 19 February 2012 the two drivers, Messrs Kelly and Atchison, advised their union and subsequently Rail Corporation management that Mr Bibby was not in fact in charge of the shunt at the time the driver was injured, but rather that Mr Frew had been in charge of the shunt and had been in the train at the time of the incident. Both said that Mr Frew had asked them to say that Mr Bibby had been the shunter in charge. [22] In explaining why he had initially told an untruth, Mr Atchison referred to a 'family culture' at the Respondent's workplace. Mr Kelly said that he had felt 'peer pressure' to maintain the untruth. [23] The next day, 20 February 2012, Mr David Filipetto, General Manager, Rollingstock, had a telephone conversation with Mr Bibby in which Mr Bibby twice asserted that he was the shunter of the train 'at the time of the incident'. When then told by Mr Filipetto that the drivers had said that Mr Frew, not he, had been in charge of the shunt, Mr Bibby said that he was not the shunter at the time of the incident, and that Mr Frew was. This conversation was the first occasion on which Mr Bibby made that admission to the respondent. [24] Having had that conversation, later on the day of 20 February Mr Bibby told Craig Mills, a workplace safety investigator with the respondent, that he had not been the shunter at the time the employee had been hit but 'Jason asked me to do the shunt and in my mind I believed that I was in charge even though I wasn't present when the train hit the employee.' [25] The respondent's investigation involved the interview with Mr Bibby referred to above, interviews with the two drivers, with a number of other persons present, and with Mr Frew. [26] On 1 March 2012 a letter was provided to Mr Bibby notifying him of an investigation into the possibility that he breached the respondent's Code of Conduct in relation to the incident. [27] On 14 March 2012, a letter setting out the two allegations against him - which were ultimately the allegations forming the basis for his dismissal - was provided to Mr Bibby. [28] On 3 April 2012 Mr Bibby's union provided a written response on his behalf. The union advised that Mr Bibby wished to exercise his 'right to silence' while it remained unclear if any external investigation by police 'or other regulators' would take place and asked that the investigation be stayed. [29] On 4 April 2012 Mr Bibby was invited in writing to take part in a disciplinary interview. On 10 April he declined, on the advice of his union, to do so. [30] On 16 April 2012 Mr Bibby was advised in writing by the respondent that the investigation would continue. In that letter the respondent set out the range of possible disciplinary outcomes and advised that Mr Bibby would have a further opportunity to make representations prior to any disciplinary action being effected. [31] On 2 May 2012 Mr Bibby provided a Statutory Declaration to the respondent about the events surrounding the incident. In that he said that Mr Frew had asked him to 'watch the train because he had to go to the amenities' and added 'when management asked me if I did the shunt, I said yes, because I was shunting at the time'. [32] On 14 May 2012 Mr Bradley Kerr, Investigator for the respondent, competed [sic] his investigation and referred the matter to the Discipline Review Panel of the respondent for determination. [33] On 4 June the respondent in the person of Mr Filipetto wrote to Mr Bibby advising him that a preliminary view of the appropriate disciplinary outcome was dismissal, but inviting him to advance any submission he wished in relation to the matter. [34] On 2 July Mr Bibby responded in brief form saying that he 'didn't intentionally mislead anyone and still to this day believe that I was in charge of the shunt at the time while Jason went to the toilet.' [35] On 23 July Mr Bibby was advised in writing that he was to be dismissed with effect from 4 August 2012. [36] No police proceedings were initiated. 5Mr Bibby was dismissed from his employment on the basis of the following allegations, which had been found proven: that he falsely presented himself as the shunter in charge of the shunting movement at the time of the accident; that he failed to report that Jason Frew was the shunter assigned to and in charge of the shunt; and that he actively assisted Mr Frew to avoid post-incident drug and alcohol testing. 6The TAB found that the matters that were said to be the basis for the termination did, in fact, occur and that the matters formed a sufficient basis for the punishment imposed, namely, dismissal from employment. Appeal grounds 7The only ground of appeal set out in the application was that: One of the drivers did not confess without assistance. Mr Bibby was not given that assistance. 8There were various matters raised in the application under the heading "Reasons why leave to appeal should be granted", but I must say these were not at all easy to follow. When asked what was Mr Bibby's best appeal point it seemed to be that he was treated disproportionately more severely than one of the drivers. It also seemed to be contended that the TAB did not have sufficient regard to Mr Bibby's length of service, that he could not read or write and was easily led and that he would find it difficult to obtain other employment. Grounds in support of extension application 9It was not immediately evident from the application form what grounds were relied upon for the extension of time. It seems that the main ground was that Mr Bibby failed to advise his lawyer in a timely way that he wished to appeal. Relevant statutory provisions 10An appeal from a decision of the TAB is governed by s 23A of the Transport Appeal Boards Act 1980: 23A Appeals on questions of law (1) A party to a promotion or disciplinary appeal may, subject to subsection (3), appeal to the Full Bench of the Commission in Court Session against any decision of a Board in the proceedings on a question of law. (2) On an appeal under this section, the Full Bench of the Commission in Court Session may: (a) remit the matter to the Board for determination in accordance with the decision of the Full Bench, or (b) make such other order in relation to the appeal as seems fit. (3) Part 7 of Chapter 4 of the Industrial Relations Act 1996 applies to an appeal against a decision of a Board under this section in the same way as it applies to an appeal against a decision of the Commission under section 197B of that Act. 11Section 197B of the Industrial Relations Act 1996 provides: 197B Appeals on questions of law in relation to public sector promotional and disciplinary matters (1) A party to proceedings under Part 7 of Chapter 2 may, subject to this Part, appeal to the Full Bench of the Commission in Court Session against any decision of the Commission in the proceedings on a question of law. (2) On an appeal under this section, the Full Bench of the Commission in Court Session may: (a) remit the matter to the Commission for determination in accordance with the decision of the Full Bench, or (b) make such other order in relation to the appeal as seems fit. 12Section 189 of the Industrial Relations Act, which appears in Part 7 of Chapter 4, deals with the time and procedure for making appeals: 189 Time and procedure for making appeals (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows. (2) Further time may be allowed, either before or after the end of that 21-day period. Legal principles 13I referred recently to the relevant legal principles in relation to extension of time applications in Ary v Sydney South West Area Health District [2013] NSWIRComm 96. Without repeating what was said in that case, it is relevant to note the following: (a) the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Nanschild v Pratt [2011] NSWCA 85 at [38] per McColl JA; (b) the following factors as relevant to the question as to whether to grant extension of time to appeal as being the length of delay, the reasons for the delay, whether the applicant has a fairly arguable case, and the extent of any prejudice suffered by the respondent: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] per Basten JA; (c) applications to extend time should be considered in the framework constituted by ss 56-60 of the Civil Procedure Act 2005: Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279 at [32] per McColl JA. Consideration 14Mr Bibby's application to appeal was filed two months' out of time. As best as I could understand the explanation for this it was that Mr Bibby was not advised that the decision was to be handed down on 8 August 2013 (there was no record he had been advised). However, it appears he did become aware of the decision on 12 August 2013. Apparently Mr Bibby did nothing to inform his legal adviser about the decision until about 19 September 2013. In that respect, I note Mr R Christie, solicitor, appeared for Mr Bibby in the proceedings before the TAB and represented him again on the extension application. Mr Christie was unable to give any satisfactory explanation why Mr Bibby took no steps to initiate an appeal between 12 August and 19 September 2013 other than to rely on Mr Bibby's lack of communication skills and the difficulty Mr Bibby's girlfriend had in assisting him because of her non-English speaking background. 15There was further delay on Mr Bibby's part between 19 September and 28 October 2013 when the appeal application was eventually filed. I am not exactly certain about the reason for this, but it appears to have been partly to do with an application Mr Bibby was pursuing to have the filing fee related to the appeal waived. 16However, I do note that by 19 September 2013, Mr Christie was seized of the fact a decision had been handed down and understood, mistakenly, there was a 28-day period in which to appeal. Notwithstanding that mistaken view, and despite Mr Bibby's continuing equivocation as to whether he should appeal, it would have been prudent for Mr Christie to advise Mr Bibby that he should at least file an appeal (and by 19 September, an application to extend time) in order to go some way in protecting his position regarding an appeal. However, nothing was done until more than five weeks' later. 17The Court is required to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the Civil Procedure Act. However, the Court must also seek to act in accordance with the dictates of justice: s 58 of the Civil Procedure Act. But that does not mean that the Court should disregard the need for strict compliance with time limits where there is a less than satisfactory explanation as to why the time limits were not adhered to and in circumstances where the applicant had ready access to legal advice. 18In my opinion, no satisfactory explanation was given for the delay in filing the appeal. Even if I am wrong about that it is my opinion Mr Bibby does not have a fairly arguable case on appeal. 19As to Mr Bibby's 'best appeal point', Newall C dealt with this at [190]-[194] of his decision and in my view adequately so: [190] That leads to the fourth matter. Mr Atchison and Mr Kelly, who also lied to management, and indeed on the evidence actively stated that Mr Bibby was in the cab of the train when the incident occurred, were given only a one-month suspension for their part in the matter, while Mr Bibby was dismissed on notice. There is a very significant difference between a one-month suspension and losing a job. The written submissions for Mr Bibby place substantial emphasis on this point. [191] Of course, Messrs Atchison and Kelly were, after a week, jointly responsible for alerting the Rail Corporation to the falsehood that had been practiced (sic). After initially lying they told the truth, or at least a significant part of it. Mr Bibby did not do that. [192] I accept that the way in which the respondent dealt with Messrs Atchison and Kelly not only reflects the fact that they did, albeit belatedly, tell the truth, but also reinforces the message that to tell the truth will be well regarded by management and will make a difference in any disciplinary matter. In my view the respondent is entitled to convey that message in its choice of disciplinary sanction. [193] There is no hard and fast rule that renders a decision to dismiss unfair because others who may have been involved, or committed similar offences, are not given the same punishment: Martin Evans v NSW Police [2005] NSWIRComm 404. Punishments for similar acts of wrongdoing need to be consistent. That does not mean that the punishment must be the same, in circumstances where the conduct of one employee can be distinguished from the conduct of another: Capral Aluminium v Sae (1997) 75 IR 65 at 68. [194] In the end, the question squarely before the Board is whether the punishment imposed on Mr Bibby was appropriate given the factual matters made out in his case: Dubihur loc cit. The Board is not asked to, and is not able to, adjudicate on the appropriateness of the punishments imposed on Mr Kelly and Mr Atchison. While those punishments have been considered by the Board in the context of assessing the appropriateness of the punishment imposed on Mr Bibby, in the end the test is whether the punishment imposed on him was appropriate. 20The TAB also dealt with Mr Bibby's length of service (at [182]), that Mr Bibby would find it difficult to obtain other employment ([187]-[189]) and that Mr Bibby was 'not the smartest of people' and that he was easily led ([183]-[186]). It is not apparent that any error occurred in the Board's treatment of these matters. Moreover, an appeal only lies on a question of law. There was no attempt in the appeal application filed on 28 October 2013 to identify the question of law and when asked what it was, Mr Christie replied, "judicial fairness" and went on to attempt to explain what he meant. Even after the explanation I remain unclear as to what is the question of law, which should, with respect to Mr Christie, have been articulated with some level of clarity. 21I propose to refuse the application to extend time to appeal. Orders 22The application by Mr Bibby to extend time to appeal in this matter is refused. I so order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2013