Transport Appeal Boards New South Wales Medium Neutral Citation: Elleray v Rail Corporation New South Wales [2013] NSWTAB 7 Hearing dates: 7 November 2013; 6 December 2013; 13 December 2013 Decision date: 16 December 2013 Before: Newall C Decision: The appeal in Matter TAB 255 of 2012 is disallowed Catchwords: Disciplinary appeal - Rail Corporation - employee appeal against dismissal - appeal to Board upheld - appeal by respondent to Industrial Court upheld - matter remitted to Board - determined on earlier evidence - Board's approach to appeals - hearing de novo - onus of proof - employee's duty to employer - attempt to strike fellow employee - intimidation of fellow employees - misconduct - appeal dismissed Legislation Cited: Transport Appeal Boards Act 1980 s.14 Transport Administration Staff Regulation 2005 s.43 Evidence Act 1995 s.140 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Bibby v Rail Corporation New South Wales [2013] NSWTAB 4 Brar v Railcorp [2012] NSWTAB 7 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Duhbihur v Transport Appeal Board [2005] NSWSC 811 Jones v Dunkel (1959) 101 CLR 298 Helton v Allen (1940) 63 CLR 691 Laws v London Chronicle (Indicator Newspapers Ltd) [1959] 1 WLR 698 Matkevich v NSW Technical and Further Education Commission (No 3) (Supreme Court of NSW, 2 Feb 1996, unrep National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 R v Carroll (2002) 213 CLR 635 R v Darby (1982) 148 CLR 668 Rowell v Larter (1986) 6 NSWLR 21 Category: Principal judgment Parties: David John Elleray (Appellant) Rail Corporation of New South Wales (Respondent) Representation: Mr P Doyle (Counsel for Appellant) Marque Lawyers (Respondent) File Number(s): TAB 255 of 2012 DECISION 1. In this matter Mr David Elleray appeals pursuant to s.43 of the Transport Administration Staff Regulation 2005 against disciplinary action taken against him by his employer, the Rail Corporation of NSW. ('Railcorp') 2. Mr Elleray was a long-standing employee of Railcorp, having commenced employment with that organisation on 9 September 1996 as a Station Assistant Class 1. He was promoted to the position of Guard Relief on 19 August 1997 and commenced in the position of Guard on 3 March 1999. 3. The punishment imposed on Mr Elleray was dismissal from employment on notice. The dismissal was effected on 9 July 2012. 4. Mr Elleray brought an appeal against Railcorp's decision before the Transport Appeal Board. ('the Board') 5. His appeal was heard and determined by the Board, a decision being handed down on 7 May 2013. [1] The Board upheld Mr Elleray's appeal and reinstated him in his employment. 6. The Respondent, Railcorp, appealed against the Board's decision to the Industrial Court of New South Wales. 7. On 30 August 2013, the Industrial Court overturned the Board's decision and remitted the matter to the Board to be determined according to law. [2] 8. In particular, the Industrial Court held: 51 We are mindful that the TAB Act does not specify the criteria about which the Board must be satisfied in order to uphold an appeal. However, in Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [117] - [121], Hall J held that the TAB was required to consider whether RailCorp's decision was just and reasonable. This required the Board to consider the gravity of the misconduct (at [118]). 52 Hall J also held that the TAB did not generally exercise a protective jurisdiction, but rather, a punitive jurisdiction (at [102], [106] - [107]). 53 In reaching this conclusion, his Honour placed weight on the fact that the precursor to the 2005 Regulation just like the 2005 Regulation, empowered the employer to impose "punishment" (at [99], [106]). 54 We respectfully agree with his Honour's observations. Further, we consider the correct approach to be followed by the Board in appeals such as that dealt with by Tabbaa C is that stated in Bibby v Rail Corporation New South Wales [2013] NSWTAB 4 at [113]: The first obligation is to determine whether the matters which were said to be the basis for the termination occurred as a matter of fact. The second is to determine whether, if the matters are found to have occurred, they formed a sufficient basis for the punishment imposed. 55 In the present case, the Board neither made adequate findings of fact regarding the matters that were alleged to justify the dismissal of the respondent nor did it - or could it have in the absence of such findings - determine whether the dismissal was just and reasonable. 1. The matter came before me on 10 October 2013 for directions. I directed that the matter was to proceed on the basis of the evidence filed in statement form and the oral evidence, including cross-examination, before the Board at first instance. I directed that written submissions be provided as to matters for fact and law within a specified period ending on 12 December 2013, and added an undertaking that if humanly possible a decision would be provided, with reasons, before the end of the law term on 20 December 2013. 2. I adopted this course because, first, the parties had been legally represented before the Board at first instance and had made what were no doubt informed and deliberate forensic decisions about their evidence in chief and cross-examination. 3. Second, but in the context of the parties having already had that opportunity, to allow the matter to be conducted all over again would have required a hearing in 2014, which in my view would have been contrary to the proper conduct and jurisprudence of the Board in relation to a dismissal in July 2012, having regard particularly to s.14 of the Transport Appeal Boards Act 1980, ('the Act') and an unwarranted use of the limited resources of the Board's sitting days. 4. No submission was made that any particular or identifiable prejudice would arise from this course. 5. The matter has been, as I point out above, remitted to the Board to be determined according to law. 6. In my view, and noting, with respect, the elements of the decision of the Industrial Court extracted above, that means the following. 7. Firstly, it is clear, not least from the decision of the Industrial Court on appeal in this matter, that the task of the Board in an appeal of this kind is twofold. 8. The first obligation is to determine whether the matters which were said to be the basis for the termination occurred as a matter of fact. 9. The second obligation is to determine whether, if or so far as those matters are found to have occurred, they formed a sufficient basis for the punishment imposed, whether the punishment was 'just and reasonable' to use the term referred to with approval by the Industrial Court.. 10. That being so, the question of onus of proof of the matters to be determined arises. 11. Mr Elleray was dismissed for misconduct. The onus for proving that the matters said to comprise misconduct and to form the basis for the dismissal falls on the employer: Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-4. That is so even if, as here, the dismissal for misconduct was on notice rather than summary: National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at [35]. 12. I agree with the submission of counsel for Mr Elleray in the initial proceedings and in submissions to the Board in the present proceeding that as this dismissal was said to be for misconduct, an allegation serious in itself and with potentially serious consequences, the respondent must make out the misconduct on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336; 'in a convincing way' as it has been expressed by the Full Commission of the Industrial Relations Commission of NSW: NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29]. 13. As set out above, it is only if the misconduct is found to have been proven that the Board is required to assess the gravity of the misconduct in evaluating the employer's decision to dismiss Mr Elleray: Duhbihur loc cit at [118]. 14. It is nevertheless the party seeking to persuade the Board to allow an appeal against a disciplinary decision who carries the onus of showing that the discipline imposed was unfair: Saini v Director-General, NSW Agriculture (Court of Appeal of NSW, 11 November 1996, unrep) per Cole JA, with whom Clarke JA and Maher JA agreed, at p 3. 15. The Board proceeds under s. 23 of the Act. That section relevantly provides: 23 Decisions on appeals (1) A Board may, in relation to an appeal, decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (2) Except as provided by section 23A, the decision of a Board in respect of an appeal is final and is to be given effect to by the Authority against whose decision the appeal was made. 1. It is clear from the words of the Act that the hearing before the Board is an appeal de novo. That is, the Board is to hear and determine the matter afresh on the materials before it, not simply review the decision of the initial decisionmaker: see Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91. 2. That has the effect that so far as there is any allegation of procedural unfairness, it may be cured by the opportunity for a full hearing before the Board: Matkevich v NSW Technical and Further Education Commission (No 3) (Supreme Court of NSW, 2 Feb 1996, unrep; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 593. 3. It also means that the matter will be decided on the evidence brought before the Board. Whether the matters forming the basis for dismissal were made out 1. The two matters raised against Mr Elleray in the disciplinary process and for which he was ultimately dismissed require the Board, in the first step of the twofold process, to resolve two factual questions. 2. They are, put shortly, whether or not Mr Elleray misconducted himself by his behaviour on a Railcorp-operated train on 14 November 2010, and second, whether he had misconducted himself by failing to advise Railcorp as his employer of criminal convictions recorded against him between October 2001 and May 2004, the convictions being for offences punishable by imprisonment for six months or longer. 3. The initial allegations were conveyed to Mr Elleray by a letter dated 13 May 2011, which, relevantly, set out the following allegations: (2) That on 14 November 2010 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." 1. These allegations gave rise to a disciplinary investigation during which Mr Elleray was suspended with pay. The result of that investigation was the Railcorp found those matters to be substantiated. 2. In the course of that investigation Railcorp discovered that Mr Elleray had four criminal convictions that did not form part of his employee record and formed the view that he had not disclosed these convictions to Railcorp. This gave rise to four new allegations, which, summarised, were that he did not disclose any of his four criminal convictions which occurred during the course of his employment with Railcorp to his employer, contrary to an express provision of the Code of Conduct that employees should do so. That matter was also investigated. On 19 March 2012, those allegations were found to be sustained. 3. By a letter dated 19 April 2012, Mr Elleray was invited to make submissions as to why he should not be dismissed. Mr Elleray's solicitor made submissions by letter dated 17 May 2012. In these submissions, Mr Elleray did not deny the allegations in relation to incident on 14 November 2010. In relation to the alleged failure to disclose criminal convictions, Mr Elleray identified Railcorp personnel to whom he allegedly did disclose the convictions. As a consequence of these submissions, Railcorp obtained and considered a number of further witness statements 4. On 9 July 2012 Railcorp dismissed Mr Elleray, furnishing him with four weeks' pay in lieu of notice. 5. The letter dismissing Mr Elleray stated that the basis for his dismissal was twofold. The first was that that he had committed breaches of the Railcorp Code of Conduct in that he had failed to immediately inform his manager or supervisor of the criminal offences of which he had been convicted on 24 October 2001 and 6 May 2004 respectively. The second reason given was that he had committed a breach of the Railcorp Code of Conduct by his conduct on 14 November 2010, which was set out in terms essentially identical to that in the letter of allegaation dated 13 May 2011 which I set out above. 6. These are the two factual matters that Railcorp must make out to the appropriate level of proof. 7. I note that some inference adverse to Mr Elleray is sought to be advanced for reason that he did not provide his account of the events of 14 November to Railcorp: Respondent's submissions, paragraph 77(b). So far as this is said about any period before the criminal charges against him arising out of those events were dealt with, that submission is misconceived. As his counsel puts in final submissions in this proceeding, Mr Elleray was entitled to maintain his silence on those matters while the criminal charges were pending. I do not draw any adverse inference against Mr Elleray for that reason. Evidence before the Board 1. Railcorp advanced the following evidentiary case before the Board. 2. It relied on a statement by Ms Karen Sujljic dated 3 October 2012 which essentially provided the Railcorp record of the disciplinary process, including transcripts of interviews with witnesses. 3. As to the matter concerning the conduct on the train in November 2010, Railcorp also brought before the Board statements from Transit Officers Scott Ogden, Michael McKenna, Richard Wain, Raymond Jones and Adrian Piovesan. Each of those officers in the evidence they gave before the Board adopted the statements they had given to Railcorp in the course of that body's investigation into the incidents. 4. As to the allegation that Mr Elleray had not informed his manager or supervisor of his criminal convictions, Railcorp relied on statements from two men, Mr Michael Beckett and Mr Patrick Duffield, whom, Mr Elleray gave evidence, he had in fact informed of his criminal convictions at the time. A statement of Mr Wayne Williamson was also advanced in relation to this matter. 5. All the Railcorp witnesses were brought before the Board and all were cross-examined. 6. Mr Elleray give evidence by statement and oral evidence. He also advanced in his case a statement and oral evidence from Mr Mark Shrimpton, a train driver. Both Mr Elleray and Mr Shrimpton were cross-examined. 7. I turn to the evidence and the effect of the evidence as I examine each of the allegations. 8. I turn first to the allegation that Mr Elleray had breached the Code of Conduct by failing to disclose criminal convictions imposed on him in 2001 and 2004 respectively. 9. The 2001 convictions in Liverpool Local Court were for "Resist Officer in the execution of duty" which carries a maximum penalty of imprisonment of five years or 12 months, depending under which section the charge was laid, and two counts of "Assault occasioning actual bodily harm" which carries a maximum penalty of imprisonment for five years. Mr Elleray was sentenced to a good behaviour bond for two years. 10. The 2004 convictions in Goulburn District Court were for "Drive vehicle recklessly / furiously / or speed / manner dangerous" which carries a maximum penalty of imprisonment for nine months and "Drive on road etc while licence suspended" (which carries a maximum penalty of imprisonment for 18 months). Mr Elleray was in fact sentenced to a good behaviour bond for two years and was disqualified from driving for a period of time. 11. I set these matters out to demonstrate that the convictions were for offences characterised as serious, as was properly conceded by Mr Doyle, appearing for Mr Elleray. 12. I am satisfied on the evidence that at the time of each conviction, Mr Elleray was obliged by SRA Code of Workplace Standards to report his convictions to his employer. The Code identifies as a matter that employees are 'required' to observe, the following: "Report any criminal conviction that may be relevant to the performance of your job." I observe that this provision is not in its terms confined to serious offences. In the context of employment in a position designed in part to ensure the safety of the public the 2001 convictions, at least, were convictions which 'may be relevant' to the performance of Mr Elleray's job. 13. The Code itself identifies breaches of the Code as potentially misconduct: Code, p.19. 14. As Ms Talbert for Railcorp properly submitted, Railcorp does not assert that the fact of Mr Elleray's convictions for those offences constitutes misconduct. The allegation of misconduct is based solely on his asserted failure to report these convictions. 15. Mr Elleray's evidence before the Board was that he had advised relevant managers of his convictions at the time. 16. Mr Elleray gave evidence that, with respect to the two 2001 convictions, he had had two conversations with his then Depot Manager, Mr Patrick Duffield, in the first of which in February 2001 he advised Mr Duffield that he had been charged with the offences; and in the second of which, in October or November 2001, he told Mr Duffield, "just concerning that incident back in January. I was fined and placed on a good behaviour bond." 17. As to the two 2004 convictions, Mr Elleray gave evidence that in November 2003 he had a conversation with his then Depot Manager, Mr Beckett, in which he said "I've been charged with some road offences following when I crashed my car". He then gave evidence that on 18 December 2003 he told Mr Beckett "I lost my licence for 3 years" and a conversation followed that made it clear that Mr Beckett understood what he had been told. 18. I am satisfied that there was as a matter of fact no record of the convictions held by Railcorp. Ms Sujljic, the Railcorp investigator, gave evidence that she reviewed both Mr Elleray's Railcorp Human Resources personnel file and his local personnel file at Wollongong Depot and found no record of any criminal conviction; Mr Williamson gave evidence to the same effect. 19. Mr Duffield's evidence in chief was that he had no recollection of Mr Elleray reporting criminal convictions to him, and that where an employee did report a criminal offence, Mr Duffield reported the details to his Human Resources Managers. 20. In cross-examination, Mr Duffield said of the first conversation asserted by Mr Elleray: "I've tried to think back and this is a long time ago, the conversation could've happened but I have no recollection of it" (tpt p 73 l 25) 1. As to the second conversation, Mr Duffield said that he had no recollection of the conversation, and was then asked: Q: With regards to that answer, is it possible that that was said and that you just don't remember being so long ago?' A: It's possible that - that David may have told me that" (tpt p 73 ll 32-36) 1. I observe, of course, that Mr Duffield said that had he been told those things, he would have reported them, and on the records he did not do that. Accepting that there is no reason to view Mr Duffield other than as a conscientious manger, an inference might be drawn that for reason that the convictions were not recorded, it could be concluded that he was not told of them. 2. However, the Board has before it an allegation that Mr Elleray misconducted himself in that he did not report his 2001 convictions. 3. Mr Elleray gives an express account of having reported the fact of being charged and the fact of being convicted - albeit in cursory terms - to his Depot Manager, Mr Duffield. Mr Duffield's evidence when pressed was that, as to the first conversation, 'the conversation could've happened but I have no recollection of it', and as to the second, the more important as it was actually an account of Mr Elleray's having been convicted, 'It's possible that David may have told me that.' 4. It is apparent that Mr Duffield was doing no more than answering the questions honestly. 5. I have already said that the Board needs to be satisfied as to the facts of alleged misconduct, the onus falling on the respondent in this case to make out its allegations, and to make them out 'in a convincing way'. Allegations of this seriousness may not be made out on inexact proofs or indirect inferences: Briginshaw loc cit; Evidence Act 1995 s.140. 6. In my view the respondent cannot satisfy its onus to make this allegation out at the appropriate standard. Mr Elleray said he reported the 2001 charges and convictions and gave an account of conversations in which he did so. The other party to those conversations - and it was more than a decade ago - says he does not remember the conversations, but they may have happened. 7. That, together with an inference to be drawn from the lack of a record of the convictions, is insufficient to allow a finding that the allegations regarding the 2001 convictions are made out 'in a convincing way'. I do not find them made out as a matter of fact. 8. I now turn to the allegations concerning the 2004 charges and convictions. 9. Mr Beckett in his evidence before the Board said that in respect of both conversations asserted by Mr Elleray he 'had no recollection of that conversation ever taking place.' I note that in his account to the respondent's investigator tendered in evidence by the respondent, Mr Beckett said that he "could not recall 100% if [Mr Elleray] advised him of such matters" 10. Mr Beckett also said that had he been told of the convictions, he would have reported them; as I say above, I am satisfied that there is no record of that having occurred in respect of the 2004 convictions. 11. In cross-examination, asked about both of the conversations with Mr Elleray, Mr Beckett said about both of them 'I don't remember the conversation.' 12. In my view the respondent cannot satisfy its onus to make this allegation out to the appropriate level. Mr Elleray said he reported the 2004 charges and convictions and gave an account of conversations with a manager in which he did so. The other party to those conversations - and again it was nearly a decade ago - says he does not remember the conversations. 13. I have already said that the Board needs to be satisfied that the facts of alleged misconduct are made out 'in a convincing way'. An inference is available that Mr Beckett was not told, but an inference is short of Mr Beckett saying that he is certain that was not told and that Mr Elleray's account is untrue, which Mr Beckett does not say. An inference is insufficient in my view, particularly in the face of Mr Elleray's direct account, to permit the allegation to be sustained. 14. I do not find the allegations of misconduct in relation to Mr Elleray's 2004 convictions to be made out as a matter of fact. 15. It is accordingly unnecessary to turn to the appropriateness of the punishment imposed in relation to those matters, noting that, as with punishment for the alleged misconduct in relation to the 2001 convictions, the punishment of dismissal appears to have been imposed for the whole of the misconduct that the respondent found sustained. The allegations concerning the incident of 14 November 2010 1. I now turn to the allegations of misconduct arising from the incident on 14 November 2010. 2. I do not repeat in terms the allegations of fact which are set out at paragraph 29 above. Put shortly, they were that Mr Elleray refused to produce a ticket or pass when requested to do so, that he attempted to punch Transit Officers McKenna and Jones, and that he attempted to intimidate five transit officers by threatening and abusive language, the detail of which was contained in the allegation and the letter of dismissal. 3. The first question is whether the matters alleged by Railcorp and which formed the basis for dismissal are made out as a matter of fact. 4. Although on one view the alleged conduct by Mr Elleray was a short single continuum of events, I address each allegation in turn. 5. The first allegation is that Mr Elleray failed to produce a ticket or pass. 6. I accept the evidence that Railcorp's employees are entitled to travel passes issued pursuant to the terms and conditions expressed in the Railcorp publication Your Employee Travel Passes issued in 2005. The Travel Pass Terms and Conditions relevantly state: 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. The conditions printed on the travel pass also relevantly state: Conditions of Use [...] Pass must be carried at all times when travelling and produced when requested by an Authorised Officer. 1. The evidence is unchallenged that on 22 June 2010, Mr Elleray signed an Annual Employee Declaration in which he acknowledged receipt of his 2010/2011 Employee Travel Pass. Among other things, the Annual Employee Declaration that Mr Elleray signed stated: "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." 1. The Annual Employee Declaration states in terms: "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." 1. By signing the Annual Employee Declaration Mr Elleray acknowledged: "I agree to comply with the above conditions; and I understand any breach of these conditions can result in disciplinary action, including dismissal." 1. The terms and conditions referred to include an obligation on employees travelling on Employee Travel Passes to uphold the values and professional standards outlined in the Code. The Code relevantly states at Section 2: 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 1. On unchallenged evidence drawn from Mr Elleray's employment records, he attended a Code of Conduct Briefing as recently as 11 February 2010. The first factual particular of allegation 1. The evidence of the first allegation, that Mr Elleray refused to produce a ticket or a pass, comes from Mr McKenna. He said in his account to Railcorp's investigator on 10 February 2013 that he asked Mr Elleray 'Could I see your train ticket mate?" and Mr Elleray said 'No'. Mr McKenna said he then said 'Why not, do you have a ticket?' and Mr Elleray said 'No I don't have a fucking ticket'. Mr McKenna then gave an account of his saying to Mr Elleray 'Any reason why you don't have a ticket?' and Mr Elleray responding 'I just don't have one.' Mr McKenna then gives an account of requesting Mr Elleray's name and address, consistent with an intention to issue an infringement notice. 2. The conversation, according to Mr McKenna, developed further, but that is the relevant portion concerning the failure to produce a ticket. 3. Mr McKenna gave this account in interview; it is the same as the essentially contemporaneous notes he made in his notebook at the time. That is unsurprising as he was allowed to use, and indeed read, his notes in the interview. That account is supported by the fact that Mr McKenna issued a penalty notice for failing to produce a ticket. It is also consistent with the account he gave in the local court proceedings, again not entirely surprisingly as he based his account again on his contemporaneous notes. 4. Mr McKenna was, however, cross-examined before the Board. Indeed, a substantially different sequence of events was posited to Mr McKenna in cross-examination, no doubt on instructions, which was not an account given in evidence by Mr Elleray. Mr McKenna was unshaken in his account and his account was not shown to be inherently unreliable. 5. The evidence of this particular of allegation was supported by the evidence of Mr Jones. He also relied heavily on his contemporaneous notes. Those notes contain an account of Mr McKenna asking Mr Elleray 'Can I see your ticket please ' (similar) Mr Elleray saying 'I haven't got one'.(similar). Mr Jones then goes on to give an account of Mr McKenna asking for Mr Elleray's details. 6. Mr Jones was also cross-examined. It was expressly put to Mr Jones that Mr Elleray offered to show his rail pass to Mr McKenna, Mr Jones was adamant that there was no mention of a pass. It was then put to him that Mr Elleray's action in reaching into his back pocket, as he said that Mr Elleray did, was in order to obtain his pass. Mr Jones repeatedly denied the proposition that Mr Elleray made any mention of a pass. 7. That is the evidence which Railcorp advances in support of this factual allegation. 8. Mr Elleray did not give evidence about this matter to the Board. He gave evidence that the charges against him arising out of the events of 14 November 2010 were either withdrawn or dismissed, a point to which I return, but said nothing about whether or not he refused to show a ticket or pass. 9. I note that it is unquestioned on the evidence that Mr Elleray had a pass, and had it in the back pocket of his shorts. Both Mr McKenna and Mr Jones confirm that the pass was later found by police when searching Mr Elleray. 10. I do not draw any adverse inference against Mr Elleray for reason that he did not give evidence about this matter before the Board. It was for Railcorp to make out its allegations of fact, not for Mr Elleray to prove them wrong. 11. I note here that Mr Elleray was not cross-examined about the incident on 14 November. No Browne v Dunn [3] point was or could be taken in this regard, as Mr Elleray had already when preparing his evidence seen all of the Railcorp evidence on this point. It did not have to be put to him again in cross-examination. 12. The Board then has before it statements from two transit officers that Mr Elleray did not produce a ticket or his pass when asked for a ticket. That evidence is recorded in contemporaneous notes made at the time and was tested in cross-examination before the Board. Nothing in that evidence itself is inherently inconsistent; the variations in the accounts of the actual words used are small and to be expected; indeed had they been identical accounts that would have been a matter of concern. The cross-examination, although thorough, did not cause any crack in the evidence to appear. 13. I have no account from Mr Elleray to cast any different light on the evidence of Messrs McKenna and Jones. As I say, I do not draw any adverse inference from this, but it leaves the Board weighing their evidence on its own terms. 14. I have given consideration to the fact that Mr Elleray had a pass in his possession, and to the fact that it would appear illogical for a person in possession of a pass not to produce it when asked by a uniformed Transit Officer. But such a supposition does not allow me to overcome or disregard the tested evidence before the Board. 15. In my view the facts supporting this particular of the allegation are made out. I return below to whether these facts constitute misconduct. The second particular of allegation 1. The second allegation is that Mr Elleray attempted to punch both McKenna and Jones. 2. This allegation is not satisfied by proof of general aggressive conduct by Mr Elleray. It is a specific allegation that there was an attempt to punch the two men. 3. Mr McKenna gave evidence, again based on his contemporaneous notes, that Mr Elleray 'got back up out of the seat and attempted to strike me. My other partner (Mr Ogden) entered the vestibule and grabbed (Mr Elleray) round the waist and forced him back into the seat" 4. He was cross examined about this account. The account he gave in cross-examination tallied with his initial account. In particular, he said that a punch was thrown at him. The cross-examination then continued: Q But it missed did it? A No he was restrained before it connected. Q He was restrained? A That's right. Q And what sort of restraint are you referring to there? A He was restrained around the waist by Ogden. 1. Mr Ogden's contemporaneous note says that when he entered the carriage 'The male then moved toward the officers [McKenna and Jones] in a threatening and aggressive manner which I deemed to be an assault because of his cocked fist and aggressive stance so I restrained him' 2. Mr Ogden said in cross -examination that when he came through the doors of the carriage he took hold of Mr Elleray. He and McKenna then forced Elleray back into his seat. 3. Mr Jones said in his contemporaneous notes: "[Mr Elleray] then came at me by jumping to his feet and quickly coming at me in an aggressive way saying 'Fuck you come on you cunt!' . 4. In his account to the Railcorp investigator Mr Jones gave an account of Mr Elleray raising his arms in a fighting stance. 5. In cross-examination Mr Jones said that Mr Elleray 'came straight at [me]'. He did not say that Mr Elleray attempted to punch Mr McKenna, but his account in cross-examination was that he lost his footing and that 'my body went down, I was like that and then I saw the tops of the door to the next carriage open and simultaneously McKenna went across, I saw his blue shirt go across sin front of my eyes and then as I rebalanced myself McKenna and Ogden, Ogden then had his arm around Elleray somewhere round the midsection.' 6. That account deals with precisely the time, on Mr McKenna's account, when Mr Elleray attempted to punch him. 7. Later Mr Jones is asked 'But he hadn't thrown any punches, had he?' and answers (after the question is repeated) 'It doesn't matter, he's threatened us.' (tpt p 37) 8. It is apparent that Jones gives no account of Mr Elleray attempting to punch him. 9. Mr Elleray gave no evidence of fact about whether or not he attempted to punch Mr Jones. I draw, as I have said above, no adverse inference against his case for reason that he did not give evidence about this matter. 10. Mr Elleray did give evidence that arising out of the events of that evening he was charged with offences of assault law officer, resist officer in execution of duty and common assault. His evidence, which was unchallenged, was that the assault law officer and resist charges were withdrawn and on the common assault charge he was found not guilty. 11. The Board is invited to draw from the fact that no criminal convictions were established that he did not carry out the conduct. 12. The evidence of the course of the criminal proceedings does not, however, determine questions of fact at the civil standard of proof. 13. An acquittal on a criminal charge does not mean that the 14 November 2010 incident did not occur as alleged by Railcorp. 14. As Gleeson CJ and Hayne J said in R v Carroll (2002) 213 CLR 635 at 646 [31]: "Seldom, if ever, therefore, can a verdict of acquittal be understood as some positive finding by the jury in favour of the accused about any of the issues that may have been contested at trial." For the reasons why that is so, see R v Darby (1982) 148 CLR 668 at 676. - 1. In any event, it is the case that a court dealing with a civil matter may go behind acquittals and determine whether the facts can nevertheless be established on the balance of probabilities: Helton v Allen (1940) 63 CLR 691. 2. As to the allegation of fact, that allegation is that Mr Elleray attempted to punch both Mr McKenna and Mr Jones. It is apparent that nobody gives an account of Mr Elleray attempting to punch Mr Jones, including Mr Jones. That part of the allegation cannot be made out and could never have been made out. 3. The other element of the allegation is that Mr Elleray attempted to punch Mr McKenna. 4. The effect of giving no evidence of fact is that Mr Elleray does not deny or bring another account of the allegation that he tried to punch Mr McKenna. Mr McKenna says that Mr Elleray did do so. Mr Jones, understandably given his evidence did not see it. Mr Ogden refers in his contemporaneous notes to seeing Mr Elleray with a cocked fist and aggressive stance, without referring in terms to a punch being thrown. In his evidence in chief Mr Ogden said that his memory now, two years later, was not perfectly clear. 5. The effect of the whole of the evidence is that the allegation that Mr Elleray attempted to punch Mr McKenna is made out. Mr McKenna gave that express evidence and there is simply no reason to disbelieve that evidence. Mr McKenna's evidence is not inherently improbable, and it is not undermined by any other evidence, including from Mr Elleray. 6. I turn below to whether the facts made out constitute misconduct. The third particular of allegation 1. The third particular of allegation concerns Mr Elleray's alleged conduct making certain statements to various transit officers after the incident involving Mr McKenna. It is to be noted that the allegation is that Mr Elleray verbally intimidated and threatened Transit Officers McKenna, Jones, Ogden, Perrett, Poivesan and Wain, saying words to the effect of: (i) "You don't know who your fucking with, your 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." 1. It is not enough to make out that the words were said; the allegation on which Railcorp has proceeded is that the words, if they were said, constituted intimidation and threat. 2. The words alleged to have been said by Mr Elleray are recorded in the contemporaneous notes by, particularly, Mr McKenna. There is no reason to doubt the account the officers give of the words being spoken. Alternative accounts of the conversation were put to the Railcorp witnesses in cross-examination; they were rejected and the account they gave was not shaken. Mr Elleray does not deny saying those words. Mr Shrimpton's evidence was that from three carriages away, he could hear yelling and recognised it as Mr Elleray's voice. That does not confirm the words spoken, but does go to support that words were spoken loudly by Mr Elleray. 3. On the evidence, the allegation that the words alleged to have been spoken were spoken is made out. There is evidence that they were, no reason to disbelieve that evidence, and no contrary evidence. 4. The question is then whether the words used and the manner in which they were used was threatening and intimidating. On any view of the words, they were. A threat need not be a threat of physical violence; here, there was a threat that due to his alleged connection with 'Mick Drury' the transit officers would lose their jobs for arresting Mr Elleray as they did. The threat was aggressive and repeated. In the context of an employee of Railcorp, who had been recently briefed in the Code of Conduct, saying the words to other employees of Railcorp, they can properly be seen as threatening and intimidating. 5. I refer here to another matter which touches on the whole question of disputed facts on 14 November 2010. 6. That is that there was no CCTV footage of the central incident in the vestibule of the railway carriage brought before the Board. 7. Mr Elleray brought evidence that he had said at the time 'It's all on camera', implying that he believed that he would be assisted by the camera footage. For its part, Railcorp sought the footage during the investigation but was provided by its supplier with the wrong footage; by the time this was realised, it was said, the correct footage was called for it had been destroyed. 8. Counsel for Mr Elleray did not take any point about this in submissions before the Board at first instance, accepting that the footage was legitimately unavailable. He did, unsurprisingly, take the point that Mr Elleray would not have referred to the incident being 'on camera', as on the evidence including that of Mr Shrimpton he did, if he knew or thought that it would have put him in a bad light. I have had regard to that. I have also had regard to the fact that Messrs McKenna and Jones both, on their accounts, believed that there would be automatic CCTV footage as the train was a Guardian train; they carried out the actions they did on that night in the belief they were being filmed. 9. In final submissions in these proceedings I was invited by the appellant to draw a Jones v Dunkel inference in relation to the CCTV footage. That submission is in my view misconceived. It is an unexplained failure to bring evidence that may attract the inference: see eg Rowell v Larter (1986) 6 NSWLR 21. Here there was an explanation for the absence of the footage, the bona fides of which explanation was not only not called into question but accepted. 10. Ultimately the matter can be determined properly on the sworn evidence, partly because there are multiple witnesses to the events. That may not be the case on another occasion; the seeming incompetence of Railcorp's CCTV supplier may in another matter have consequences adverse to Railcorp, noting that in all matters of this kind it is up to Railcorp to make out its factual allegations. Whether the factual allegations constitute misconduct 1. The factual allegations that are made out are that Mr Elleray failed to produce, relevantly, his employee rail pass, that he attempted to punch Mr McKenna, a fellow employee with the authority of a Transit Officer, and that he attempted to threaten and intimidate the transit officers with whom he came into contact on the night of 14 November 2010. 2. Measured against the standard that Railcorp on the evidence requires of its employees, and in any event measured against the common law standard of misconduct, each of the matters made out constituted misconduct. Mr Elleray had an express obligation to show his pass to a Transit Officer, a failure to do so being characterised as misconduct under the Code. As to the attempted punching and the threatening of fellow employees, that is misconduct. It is not necessary to recite a string of authorities for this proposition: it was misconduct as that behaviour was characterised in Laws v London Chronicle (Indicator Newspapers Ltd) [1959] 1 WLR 698 at 701; that is, Mr Elleray in conducting himself as he did disregarded an essential condition of his contract of employment with Railcorp. Indeed, he disregarded several such terms. Whether the misconduct justified termination of the contract 1. I observe that Railcorp did not summarily terminate Mr Elleray's employment, but rather terminated it on notice. 2. The test is whether the punishment imposed on Mr Elleray was just and reasonable: Duhbihur loc cit. 3. In my view it was. Mr Elleray was aware of the standard of behaviour expected of him by Railcorp, as set out in the Code. As to the matter of failing to show his pass, he was aware that when travelling on his travel pass, even when off duty, he was expected to act in a manner that was compliant with Railcorp's Code. 4. I accept that Mr Elleray's employment as a Guard carried expectations and responsibilities, including while off duty. I have had regard to Mr Elleray's relatively long service with Railcorp. At the same time, that length of employment meant that he was in no doubt as to what was required of him as an employee, and that Railcorp was entitled to expect that he would act in accordance with its policies and codes of behaviour: Brar v Railcorp [2012] NSWTAB 7 at [311]. 5. I have had regard to the fact that dismissal is a serious matter and that further employment may be difficult to find: see Brar v Railcorp supra at [308]. 6. Each case turns on its own facts and there is a danger in attempting to draw parallels with discipline imposed in other factual cases. I do observe, however, that the Board has held dismissal to be an appropriate disciplinary penalty for off duty conduct by an employee involving offensive language and acting aggressively toward Transit Officers: see Brar v Railcorp supra at [268] and [312]. Summary and conclusion 1. The Board's task in this matter was first, to ascertain whether the conduct alleged was made out on the facts, and whether it constituted misconduct. Secondly, it was to assess whether the punishment was just and reasonable. 2. In this matter a number, although not all, the particulars of allegation are made out. Those that are made out are sufficiently serious to constitute misconduct. They are also sufficiently serious to warrant the penalty of termination of employment on notice. The imposition of that punishment was just and reasonable. 3. Accordingly, the order that the Board makes in this matter is as follows. Order(s) 1. The appeal in Matter TAB 255 of 2012 is disallowed. PETER NEWALL Commissioner Endnotes 1. David John Elleray and Rail Corporation of New South Wales [2013] NSWTAB 3 2. Rail Corporation of New South Wales v Elleray [2013] NSWIRComm 86. 3. Browne v Dunn (1893) 6 R 67 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: 13 April 2015