Luke Byrne v Rail Corporation New South Wales T/A RailCorp - [2012] FWA 3889

[2012] FWA 3889

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Byrne
v
Rail Corporation New South Wales T/A RailCorp
(U2011/7118)

COMMISSIONER MCKENNA

SYDNEY, 22 MAY 2012

Application for unfair dismissal remedy - application dismissed.

[1] Fair Work Australia has before it an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy which has been lodged by Luke Byrne (“the applicant”), who is a former employee of Rail Corporation New South Wales T/A RailCorp (“the respondent” or “RailCorp”).

[2] Before proceeding to consider the application, it is apposite to note that the first of the alleged incidents that led to the dismissal occurred on 8 December 2009, but this incident, and a further alleged incident, did not come to light until some months thereafter. On 28 June 2010, the respondent issued correspondence outlining certain allegations following various inquiries that had been undertaken from about mid-March 2010, when matters were initially referred to RailCorp Investigations. The dismissal itself was effected by letter dated 6 June 2011, following a detailed investigation.

[3] I should also note that these proceedings have been the subject of delay in the finalisation. The matter was originally listed for hearing in Grafton Court House on 14, 15 and 16 September 2011. The listing on 16 September 2011 did not proceed because the applicant’s barrister, Ms D Lynas Torr, was unable to appear as she was unwell. The matter was subsequently listed for further hearing in Sydney on 12 and 13 December 2011, these being the first dates that were mutually-convenient to the parties. The applicant’s solicitors filed a notice of representative ceasing to act before the hearing was to resume. Ms Lynas Torr also separately advised that she was no longer acting for the applicant.

[4] The applicant instructed a second firm of solicitors (“the second solicitors”), which first appeared for the applicant at a mention on 9 December 2011 when, by consent, the hearing dates for 12 and 13 December 2011 were vacated. The second solicitors and the respondent agreed to participate in a conference, with a view to making a further attempt to settle the application. The conference did not result in a settlement and, as such, I determined to resume the hearing on 22 and 23 December 2011. The applicant’s second solicitors then filed a notice of representative ceasing to act, confirming the submissions that had been made on 13 December 2011.

[5] After the second solicitors filed a notice of representative ceasing to act, the applicant personally made an adjournment application in correspondence dated 19 December 2011 in which he cited representation-related issues and medically-supported, health-related issues. I acceded to the applicant’s adjournment application on 20 December 2011. The application was stood-over to a date to be fixed pending further advice from the applicant as to a relisting, given the health issues described in the medical advice and to allow him to arrange alternative representation.

[6] On 31 January 2012, Ms Lynas Torr confirmed she would again be appearing for the applicant notwithstanding her earlier withdrawal from the proceedings. The matter was listed for mention concerning scheduling on 3 February 2012 and, with the consent of Ms Lynas Torr and the respondent as to the date, the hearing resumed on 20 March 2012 in Sydney. Final written submissions were filed on 26 March 2012.

Background

[7] The applicant commenced employment with the respondent in 1976. The applicant resigned in 1979, and was then re-employed by the respondent about four months later. From 2001, the applicant was employed as a passenger service supervisor on XPT trains operated by CountryLink, a business unit of RailCorp. The applicant was dismissed, with a payment in lieu of notice, effective 11 April 2011. At the time of the proceedings, the applicant was aged 54.

[8] The applicant was dismissed by the respondent following an investigation by one of the respondent’s internal investigators. While there was detailed evidence in the form of the investigator’s report as to matters concerning the allegations that led to the dismissal, an overview of the issues was outlined in the executive summary to the investigation report as follows:

“(a) Mr Byrne failed to observe the Conditions of Use in relation to his Employee Travel Pass by making an unnecessary travel booking for himself for travel on 12 and 13 December 2009, therefore denying RailCorp the opportunity to allocate those seats to a paying RailCorp customer.

(b) Mr Byrne failed to maintain the integrity and security of official RailCorp documents and information by providing an email containing RailCorp maintenance information to his wife, which she used to renew a claim against RailCorp for ongoing medical expenses arising from injuries she sustained on a CountryLink service on 12 December 2009.

(c) Mr Byrne gave false and/or misleading information in written responses to allegations and other documents and adopted as true and correct statements made by his wife in relation subject of this investigation, which were false and/or misleading.”

[9] In correspondence dated 6 April 2011, the respondent advised the applicant of the dismissal in the following terms:

“Dear Mr Byrne

Your response to the findings of the Disciplinary Investigation into the allegation that you have committed breaches of the RailCorp Code of Conduct and to the proposed disciplinary action has now been considered.

The allegations, which were substantiated, and of which full particulars have previously been provided to you, are as follows:

Allegation 1

It is alleged that you engaged in unacceptable behaviour which amounts to a breach of the Code of Conduct by making an unnecessary reservation for travel on CountryLink services.

Particulars of the allegation are:-

(a) On 8 December 2009, you made a booking at the CountryLink Travel Centre, Casino, for two first class seats for CountryLink Service NT36 - Grafton to Sydney on 12 December 2009 and CountryLink Service NT35 - Gosford to Grafton on 13 December 2009.

(b) CountryLink reservations records show that this travel was reserved for Mr Luke Byrne and Mrs C Byrne.

(c) This reservation was secured by the use of Gold Passes issued to Mr Luke Byrne and Mrs Christine Byrne, entitling free first class travel.

(d) The total value of the travel reserved for you was $257.80.

Allegation 2

It is alleged that you engaged in unacceptable behaviour which amounts to a breach of the Code of Conduct by providing RailCorp documentation to your spouse, Mrs Christine Byrne, for her personal use or gain.

Particulars of the allegation are:-

(a) On 31 December 2009, Mrs Byrne lodged a claim with RailCorp which related to an injury she sustained whilst travelling on CountryLink Service NT36 between Grafton and Sydney.

(b) Mrs Byrne claimed that she occasioned an injury when she tripped due to height difference between Cars A and B.

Allegation 3

It is alleged that you knowingly made a false statement

Particulars of the allegations are:-

(a) On 6 July 2010 you acknowledged receipt of a letter which detailed an allegation that you breached the Code of Conduct by engaging in an unnecessary booking for travel on CountryLink services.

(b) Particular (a) of that allegation stated that on 8 December 2009, you made a booking at the CountryLink Travel Centre Casino.

Allegation 4

It is alleged that you misused your travel pass by making a false application for travel benefits.

Particulars of the allegation are:-

(a) On 16 June 2009, you were issued with a renewal of your Employee Pass No. [number].

(b) On the same day, you completed and signed an ‘Annual Employee Declaration’. That declaration included an ‘Employee Acknowledgement’ of the ‘Conditions of Use of Employee Pass’ which states ‘The holder of this pass agrees to comply with the relevant conditions of the Transport Administration Act 1988 and the ‘Your Employee Travel Passes’ Booklet (2005)’.

This conduct also represents a breach of the following organisational policies: - RailCorp Code of Conduct and the Transport Administration Act 1988.

Due to the seriousness of the matter, the final view of the appropriate disciplinary outcome is as follows:

Dismissal

You are to be dismissed, effective from 11 April 2011.

Your file will be marked as not suitable for re-hire in any capacity, including but not limited to, as labour hire, contractor or consultant.

Before your final payment can be made you must return property, passes, etc that belong to RailCorp. Your will be paid five (5) weeks salary in lieu of notice. ...”

[10] The allegations which formed the basis of the dismissal had been outlined more fully in correspondence from the respondent to the applicant dated 28 June 2010 and 13 October 2010.

[11] The role of Christine Byrne, the applicant’s spouse, in the events in question requires some elaboration. The applicant’s case contended it was Mrs Byrne who had made the booking referred to in Allegation 1. The investigator charged with the responsibility for undertaking the investigation concerning the applicant interviewed Mrs Byrne on 30 March 2010. The investigator questioned Mrs Byrne about a number of matters concerning both herself and the applicant in relation to an injury claim against the respondent, how she obtained an internal RailCorp document and the booking for the train travel. The investigator made contemporaneous notes of the answers given by Mrs Byrne.

[12] By letter dated 31 March 2010, Mrs Byrne made a formal complaint about the circumstances surrounding the interview to her then local member of the New South Wales Parliament, Stephen Cansdell MLA (“the MP”). Among other matters, Mrs Byrne asserted in her letter of complaint that she, not the applicant, made the booking; and that she had done so in person at CountryLink’s Grafton travel centre. Mrs Byrne also made a complaint to the NSW Ombudsman.

[13] As part of the investigator’s inquiries in the investigation, it emerged the booking could only have been made through CountryLink’s Casino travel centre. There was some discrepancy on the records as to which employee at the Casino travel centre had processed the booking, but the evidence of the relevant booking officer was that he would not accept gold travel pass bookings by telephone unless he knew the actual employee making the booking, and would not accept a booking from the spouse of an employee unless he sighted his or her gold pass.

[14] Notwithstanding the advice Mrs Byrne gave to the investigator and the original assertions in the complaint Mrs Byrne sent to the MP that she had made the booking in person at the Grafton travel centre, the evidence in the applicant’s case in the proceedings contended that Mrs Byrne made the booking by telephone through the Casino travel centre.

[15] As a separate matter, Mrs Byrne made a claim against the respondent in connection with an injury sustained while travelling on the Grafton to Gosford train on 12 December 2009. While it is common ground Mrs Byrne spoke to the passenger service supervisor (“the PSS”) about having injured one of her toes, a fall and shoulder injury relevantly were not reported to the PSS at the time.

[16] In a form later completed by Mrs Byrne and submitted to the respondent concerning the injury, she attributed the cause of her fall to “airbags”. From around the time that Mrs Byrne was taking steps to make a claim against the respondent concerning her injury, the applicant began to submit to the respondent, in documents referred to in the proceedings as “trip reports”, a number of comments or observations regarding airbags and differences in carriage heights on the XPT. On 6 January 2010, the height differences in the carriages were assessed by maintenance staff as being “within tolerance”.

[17] On or about 12 January 2010, a paper copy of an internal email chain (“the internal maintenance document”) was left in the applicant’s workplace pigeonhole, which concerned one of the applicant’s reports about airbags/carriage height differences. The applicant took the internal maintenance document home in his backpack. Mrs Byrne’s evidence was that she saw the internal maintenance document when she was tidying the applicant’s belongings from his backpack (as was her ordinarily practice) and she unilaterally determined to remove it from the applicant’s backpack and to take it to her home office, rather than leaving it with the other items she had removed from his backpack and left on a table.

[18] Mrs Byrne subsequently quoted some of the text from the internal maintenance document in correspondence dated 17 March 2010 that she sent to the respondent in support of her claim concerning the injury on 12 December 2009. The claim that Mrs Byrne had made concerning her injury was, at that time, effectively in dispute and declined by the respondent. That is, while the respondent was prepared to pay Mrs Byrne’s claim for medical expenses in the amount of $177.99 such payment was contingent on Mrs Byrne signing a release or waiver form concerning any future claims with respect to the incident on 12 December 2009. Mrs Byrne was not prepared to sign a release, presumably, although this was not clear, because she wished to make, or retain the right to make, further claims against the respondent for amounts beyond the initial medical expenses of $177.99. In this regard it may be noted, for example, that, in a telephone discussion with the PSS following the train trip, Mrs Byrne had advised the PSS she may need physiotherapy.

[19] The fact Mrs Byrne had advised she was in possession of internal RailCorp communications was the catalyst for the investigation that, in due course, led the respondent to the decision to dismiss on the bases set out in the letter of termination of employment. The applicant’s case contended that Mrs Byrne had acted of her own volition in removing the internal maintenance document from the applicant’s backpack and quoting from it in support of her injury claim. The applicant’s case further contended that the applicant was unaware of the contents of the internal maintenance document, because he had not read it; that he did not know Mrs Byrne had removed the document from his backpack; and that he did not at any time notice that the document was missing.

Applicant’s submissions

[20] The first issue raised in Ms Lynas Torr’s submissions was “mitigation”. In this respect, Ms Lynas Torr referred to a serious medical condition that was diagnosed about a month after the applicant was dismissed and the applicant’s treatment for that condition. Mr Lynas Torr also referred to a work-related injury the applicant had sustained, which was the subject of a decision in 2001 by the New South Wales Compensation Court. Ms Lynas Torr submitted that as a result of the most recent medical condition, the applicant had not been able to mitigate his losses. Ms Lynas Torr submitted that the applicant was now, however, ready, willing and able to return to work.

[21] Ms Lynas Torr submitted that, on the balance of probabilities, the allegations against the applicant had not been proved. In this respect, Ms Lynas Torr submitted the investigator had relied solely or principally on what the booking officer had said to him. However, the booking officer’s evidence was that he did not remember taking the booking.

[22] Ms Lynas Torr referred to the duty of trust and good confidence. She submitted the applicant had not breached the duty of trust and confidence, despite the views of one witness, namely, the operations team leader. Ms Lynas Torr submitted that Fair Work Australia should pay attention to the question of whether the alleged conduct occurred, based on the evidence. In this respect, the applicant had denied making the travel booking. The applicant was alleged to have given Mrs Byrne a confidential document, but a witness for the respondent said it was not a confidential document. There was evidence from Mrs Byrne that she had taken the internal maintenance document from the applicant’s bag along with the applicant’s laundry. There was another allegation that Mrs Byrne gained some form of benefit from the use of the internal maintenance document. The applicant had categorically denied having made the internal maintenance document available to Mrs Byrne; and Mrs Byrne was an independent woman who did not have to ask the applicant’s permission for things she did.

[23] Ms Lynas Torr submitted that reinstatement is the primary legislative remedy, and the appropriate remedy in relation to this application - more particularly as the applicant has now recovered from his medical condition. The applicant had worked for the respondent for many years and had never caused any major incident or difficulties and, despite a back injury, had used very little sick leave. Ms Lynas Torr submitted the penalty of dismissal was disproportionate to the allegations made against the applicant and, in any event, there was no evidence whatsoever to demonstrate he had done what had been alleged by the respondent.

[24] Ms Lynas Torr submitted that, considered in the context of the evidence, there was no valid reason to dismiss the applicant. She submitted that no one had spoken to the applicant about the allegations or asked him any questions, and the procedures adopted by the respondent were contrary to those specified in the relevant enterprise agreement. She submitted the “so-called investigation” was inordinately long. The applicant had responded to every piece of correspondence sent to him. The applicant had attended a scheduled interview, but has exercised his right to decline to be interviewed; and he was not, in any event, employed by the investigator who sought to interview him. The applicant had not been warned about matters.

[25] Ms Lynas Torr’s submissions emphasised the question of proportionality in the context of the applicant’s many years of dedicated service. She submitted the allegations seemed largely to be related to Mrs Byrne rather than the applicant, and that other travel booking had not been made by him. Ms Lynas Torr submitted the evidence should be considered as a whole and in the context of “proportionality between the punishment and the crime”. Ms Lynas Torr submitted the applicant did not consider he had engaged in any wrongdoing. The most likely allegation that perhaps could be levelled against the applicant was carelessness in not putting the internal maintenance document in a file or somewhere similar. Ms Lynas Torr also tendered a folder of materials, which included a number of decisions (with certain text highlighted) and some other materials.

Respondent’s submissions

[26] The respondent’s written outline of submissions referred to the detail of the allegations against the applicant and the evidence on which the respondent contended the allegations had been established. In this respect, it was submitted the applicant had booked seats for himself and Mrs Byrne, but he did not travel on that booking. The applicant made the booking knowing he would not travel with Mrs Byrne, because he was rostered for work. In so doing, the applicant breached the code of conduct by not acting in the best interests of the respondent, by failing to use the respondent’s resources properly, efficiently and economically and by not promoting the highest standards of professional conduct.

[27] The misuse of the benefits provided by the gold pass had destroyed the relationship of trust and confidence. The applicant’s actions also meant the respondent could not sell the seat to another person, and he sought improperly to use the respondent’s resources for his own and Mrs Byrne’s gain. Regardless of the sum involved, this serious breach of trust was sufficient to warrant dismissal. In the investigation, the submissions continued, the applicant gave misleading evidence in the face of contrary objective evidence. The applicant denied making the booking and connived with Mrs Byrne to concoct an untruthful story, in an effort to avoid adverse findings against him and disciplinary action. However, the applicant had provided an official document to Mrs Byrne so she could use it in support of her medical expenses claim. In so doing, there was a further breach of the code of conduct in that the applicant by not promoting the highest standards of professional conduct and by failing to maintain the integrity and security of an official document or information. These matters constituted valid reasons for the dismissal of the applicant. Further, the applicant had been afforded procedural fairness, including the right to respond and to have a support person, throughout the disciplinary investigation process; and he was given the reasons for the dismissal.

[28] The respondent submitted the application should be dismissed. If, however, there was a finding in the applicant’s favour, reinstatement was inappropriate given the destruction of trust and confidence, more so in a position involving the exercise of significant discretion over the use of public resources. If an order for compensation was considered appropriate, any order for compensation should be minimal.

[29] In the proceedings, Mr M Seck of counsel elaborated various matters relied on by the respondent in opposing the application. He noted there were four allegations which essentially related to the ticket booking and the provision of the internal maintenance document to Mrs Byrne - together with the allegations of making a false statement concerning the booking. In relation to queries from me as to the reason as to why the applicant may have made a booking if he did not intend to use it (as he was rostered for work), Mr Seck postulated it may have been so that Mrs Byrne would have the benefit of additional space by virtue of an adjacent vacant seat booked in the applicant’s name, but that it was unnecessary to speculate as to the reasons why the additional booking had been made.

[30] Mr Seck submitted that, on an examination of the sequence of events, especially the reference in Mrs Byrne’s injury form to airbags, the information could only have been communicated by someone who knew about the particular issue. He submitted Mrs Byrne did not have independent knowledge of such matters notwithstanding her previous employment with the respondent; and the applicant relevantly recorded airbags as the reason for carriage height variation from around the time of Mrs Byrne’s claim against the respondent. Mr Seck submitted there was an inference to be drawn that the applicant knew about Mrs Byrne’s medical expenses claim and that Mrs Byrne needed evidence to support the claim about her shoulder injury. That evidence was created in part by the applicant, in as much as he defect-noted airbag/carriage height issues, even though only the respondent’s train maintenance employees could actually determine what the real issue was.

[31] As to the internal maintenance document, Mr Seck submitted the account of events offered by the applicant and Mrs Byrne was inherently improbable, more particularly when considered in the context of Mrs Byrne’s admission when interviewed by the investigator, i.e. she knew the internal maintenance document had been placed in the pigeonhole. He submitted the evidence of the applicant and Mrs Byrne about how she came into possession of the internal maintenance document was characterised by inconsistency and inherent implausibility.

[32] Mr Seck’s submissions drew attention to matters including:

the conditions attaching to the use of a gold pass and the code of conduct, together with the applicant’s knowledge of such matters;

the Casino booking officer’s evidence that he received the telephone booking from the applicant;

the evidence of a screen dump from the respondent’s Orion travel booking system, illustrating the booking had been made through the Casino travel centre and which identified the applicant as the main contact;

the evidence from the booking officer explaining the discrepancies on the pass holder vouchers as between the name of the officer who was logged-on and the handwritten signature or scribbled annotation;

the booking officer’s evidence that he does not accept bookings from spouses of gold pass holders and that he did not know Mrs Byrne, with the result it was therefore highly unlikely he would have accepted a booking from Mrs Byrne;

the evidence from the booking officer explaining that Mrs Byrne was incorrect in her understanding of how the booking system operates as it concerns entering bookings for gold pass holders and their spouses.

[33] Mr Seck submitted the inconsistencies in the applicant’s evidence demonstrated either a lack of reliability or, ultimately, the fact he is being untruthful. In this regard, Mr Seck submitted that the applicant’s initial witness statement gave the overall impression the applicant did not have any knowledge of Mrs Byrne having made the booking until the respondent alerted him to its allegations. In cross-examination, however, the applicant ultimately acknowledged he knew about the booking before that time and Mrs Byrne also conceded in cross-examination she would have told him before she left for the trip to Gosford.

[34] As to Mrs Byrne, Mr Seck submitted she had been “wildly inconsistent” in what she asserted had occurred in relation to the booking. When interviewed by the investigator, Mrs Byrne said she made the booking in person at the Grafton travel centre with the involvement of two named employees of the respondent, that she had requested only one seat and was issued only one ticket. This interview occurred before any allegations had been made by the respondent and Mrs Byrne had not been given the opportunity to think about her situation and, in consequence, she volunteered that she made the booking at the Grafton travel centre with the involvement of the two named employees. Mr Seck submitted it must have been of concern to Mrs Byrne, even at this early stage, that a booking had been made for two tickets, so she was trying to come-up with an explanation that she, rather than the applicant, had made the booking. When cross-examined about the content of the investigator’s notes, Mrs Byrne went so far as to claim that when she gave certain responses to the investigator she was not speaking about the booking for the Grafton and Gosford travel, whereas, considered in context, there could not be any doubt about which booking was under discussion.

[35] Mr Seck noted that Mrs Byrne wrote her complaint to the MP shortly after the investigator had interviewed her; she was keen to set the record straight as to what had been said to the investigator and the recent interview was fresh in her mind. In that complaint, Mrs Byrne “maintained the story” she made the booking in person at the Grafton travel centre. Importantly, the complaint also advised the MP that when she made her travel booking, the applicant’s name always appeared first and that the booking officers always have trouble getting her name to come up by itself. Mrs Byrne advised the MP she had repeatedly informed the investigator what had transpired in the Grafton travel centre and had even provided the names of the employees who has assisted with the booking. Mrs Byrne also advised the MP she “always” goes to the Grafton travel centre to make her bookings in person. Mr Seck submitted that Mrs Byrne’s cross-examination attempted to resile from her assertions about making the booking at the Grafton travel centre by suggesting that she had only been describing where she usually made her booking.

[36] Mr Seck next went to the evidence of Mrs Byrne in her first witness statement, in which Mrs Byrne described how she had had telephoned the Grafton travel centre to make the booking, which was busy; so she then telephoned the Casino travel centre. Mrs Byrne recalled that the Casino travel centre was staffed by two employees whose names she gave, but she does not remember which employee was involved in the booking. Mr Seck submitted that Mrs Byrne’s evidence had changed significantly from what she told the investigator and the MP, and that this change was largely in response to the fact she had become aware, during the course of the investigation, the booking had been made through the Casino travel centre rather than the Grafton travel centre. At that stage, Mrs Byrne would have had the opportunity, Mr Seck submitted, to “improvise and craft” her evidence based on the emergent known facts - with the result she changed her story in a way that was in stark contrast and contradiction with what she had initially advised both the investigator and the MP.

[37] Mr Seck submitted that, after her first witness statement in the proceedings, Mrs Byrne changed her evidence again in her second witness statement. Notwithstanding Mrs Byrne’s evidence in the first statement that she did not remember which employee she spoke to when making the telephone booking through the Casino travel centre, in the second witness statement Mrs Byrne next deposed that “Contrary to [the booking officer’s] Statement, it was me who spoke with him on 8 December 2009”. In cross-examination about this “sudden” recollection in the second witness statement about who actually spoke to her, Mrs Byrne ultimately acknowledged she did not know which employee was involved and was guessing or assuming who it was. Mr Seck also submitted it was also interesting to consider Mrs Byrne’s evidence as to the reason why she had telephoned the Casino travel centre - namely she knew that it was easier to telephone that office - whereas she otherwise indicated she had not made a travel booking with that office previously.

[38] Mr Seck submitted that, given the radical change over time as to the versions of events by Mrs Byrne, the best explanation is that Mrs Byrne was trying to tailor her evidence to the emergent facts to demonstrate that she, rather than the applicant, made the booking. The fact of the radical change, he submitted, demonstrated Mrs Byrne was at the least a very unreliable witness, but, more likely, untruthful in trying to develop a version of events to assist the applicant.

[39] Mr Seck also addressed certain matters that had been raised in Ms Lynas Torr’s cross-examination of the investigator which went to seeking to demonstrate that the booking records were generally unreliable because the applicant had, for example, been on leave when another booking was made and because a booking referred to a location, namely Batlow, which does not have a train station. He submitted there was no evidence as to such matters but, in any event, the assumptions underlying the questions put in cross-examination just did not withstand scrutiny. For example, the “Bat” in the ticket said to have been for Batlow could have referred to other places, such as Bathurst.

[40] Mr Seck submitted the overall effect of the evidence of both the applicant and Mrs Byrne was designed to avoid any basis for concluding the applicant had made the booking. The way this had been done was, in effect, to say that Mrs Byrne “must have done it. I didn’t do it.” The approach had all the hallmarks of an alibi that had been concocted to get around the known facts, but with so many demonstrated inconsistencies that Mrs Byrne and the applicant ultimately could not get their stories straight.

[41] Mr Seck submitted that, contrary to certain expected standards of employee conduct, the applicant had knowingly provided a copy of the internal maintenance document to Mrs Byrne for her personal gain, or at least knew the document had been taken from him for that purpose. While Mr Seck did not discount the possibility that Mrs Byrne originally found out about the document by going through the applicant’s backpack, he submitted the most likely and plausible explanation is that the applicant gave the internal maintenance document to Mrs Byrne to assist her in making her injury claim against the respondent. Mr Seck submitted that, at the very least, the applicant leaked the document to Mrs Byrne and at the very worst gave her the document for the express purpose of using it in support of her claim against the respondent.

[42] The only explanation for the reference to airbags in Mrs Byrne’s injury form was, the submissions continued, that it came from the applicant and was planted by the applicant because he knew Mrs Byrne was making her claim. Mr Seck submitted the applicant was doing a number of things ultimately designed to support her claim. This included lodging the trip reports citing airbags as the reason for the varying heights between carriages, in circumstances where the applicant otherwise acknowledged he did not know whether the differences were airbag-related. Mr Seck submitted this was most plausibly all designed to create the necessary evidence for Mrs Byrne’s claim against the respondent; otherwise, Mrs Byrne’s identification of airbags in her injury form does not make any sense.

[43] Mr Seck submitted Mrs Byrne’s explanation for the reference to the airbags in her injury form was wholly unconvincing. Mrs Byrne first explained that the PSS on the Grafton to Gosford train informed her on the day that the floors are always uneven due to airbags and also cited her own knowledge of the causes of uneven floors, given her former employment with the respondent. Mr Seck submitted that Mrs Byrne was employed by the respondent as a cook some 30 years ago, and was untrained in train maintenance matters. Even the applicant’s evidence indicated that variations could be caused by factors other than airbags. Mr Seck rhetorically asked what would be chances of the applicant submitting four or five trip reports noting airbags at the very time Mrs Byrne was citing airbags in her claim against the respondent, coupled with Mrs Byrne obtaining and using the internal maintenance document in support of her claim.

[44] Mr Seck submitted that when all things were considered, they supported the view that the applicant and Mrs Byrne “were both in it together”. There was no other cogent explanation and the evidence overwhelmingly demonstrated there was no way that they could not have been in it together. There were too many features of what occurred to be explained by mere coincidence.

[45] The most compelling piece of evidence stemmed, Mr Seck submitted, from what Mrs Byrne said when she was interviewed by the investigator. At this early stage, when asked how she had obtained the internal maintenance document, Mrs Byrne candidly volunteered that the information was given to her by her husband. Mrs Byrne disclosed what she knew at the time, that is, the internal maintenance document was given to her by the applicant; and there was no reason to consider that this response had been given because of confusion or the like. Further, the only way Mrs Byrne could have known the internal maintenance document had been placed in the applicant’s pigeonhole was because the applicant had informed her of that fact. There was no way she otherwise could have known that fact, notwithstanding Mrs Byrne’s explanation that everyone places documents in the pigeonholes; there could have been any number of ways other than the pigeonhole by which the applicant could have received the internal maintenance document.

[46] Mr Seck noted that Mrs Byrne had been injured on the Grafton to Gosford trip. Mrs Byrne spoke to the PSS only about having kicked her toe at the point where the carriages joined, and also advised the PSS it was unnecessary for her to make a casualty report about her toe. Two days later, Mrs Byrne attended for medical examination/treatment in connection with a sore shoulder and incurred some medical expenses, but this was the first time the issue of a shoulder injury had been raised.

[47] It was common ground that it was in the telephone conversation on 14 December 2009 between Mrs Byrne and the PSS that Mrs Byrne first raised the issue of a shoulder injury with anyone from RailCorp. Mr Seck submitted that, when the evidence was examined, Mrs Byrne attempted in the telephone conversation to get the PSS to concede she had actually raised the shoulder injury so she could have it included in a casualty report. The reason this was critical was because, if Mrs Byrne wished to make a claim for medical expenses, it would be helpful to have a casualty report which referred to the shoulder injury as part of a paper trail.

[48] A number of trip reports prepared by the applicant were in evidence for the period 1 December 2009 to 30 January 2010. From 15 December 2009, one day after Mrs Byrne first spoke to the PSS about a casualty report and the fall/shoulder injury, the applicant began to refer, among other matters noted in the trip reports, to airbags and carriage height differences. Mr Seck submitted that after Mrs Byrne had telephoned the PSS about her fall/shoulder injury, the applicant then “suddenly” began to note airbags as a reason for variations in carriage height.

[49] Mr Seck submitted the evidence demonstrated the applicant was aware of the injury. The applicant had been “unsympathetic” and told her to lodge a report. The applicant drove Mrs Byrne to Grafton train station to obtain a form concerning the shoulder injury, which was later completed. Mr Seck submitted the key features of the injury form were that Mrs Byrne had identified that her foot caught between the floor on car A and B on 12 December 2009. Mrs Byrne described the nature of the injuries as being an injured left arm/shoulder and the big toe on her left foot. In the identification of the contributing factors concerning faulty equipment/fixtures that led to the injury, Mrs Byrne wrote that airbags made the floor lift. Mr Seck submitted it was “utterly implausible” for Mrs Byrne to have known about this. Although Mrs Byrne alleged in cross-examination it was the PSS who had informed her about the airbags, this contention was not contained in Mrs Byrne’s witness statements; and he noted the PSS had not been required for cross-examination. Mr Seck submitted that the further explanation provided by Mrs Byrne that she had worked on XPTs some 30 years ago as a cook, where she had no specialist training, was wholly unconvincing as to why she would cite airbags as the explanation for her injury occurring.

[50] Mr Seck submitted it was curious and more than a coincidence that Mrs Byrne should pick airbags for the cause of the injury in the form and that the applicant happened to start noting airbags as the reason for the variation in carriage heights for the first time at this very same time. Mr Seck submitted the only way Mrs Byrne would have known about this information is because the applicant gave her this information, designed to assist her with making a claim for medical expenses. Mr Seck also submitted it was highly improbable that Mrs Byrne would simply have recorded airbags and that, coincidentally, the applicant began recording airbag-related defects in his trip reports. There was, Mr Seck submitted, an irresistible conclusion that Mrs Byrne obtained the information from the applicant.

[51] Mr Seck submitted the applicant’s evidence was that he had seen the internal maintenance document, noted it that was something out of the ordinary, that he had not read it and that he put it in his backpack. Mr Seck submitted the evidence showed there was a discrepancy between the evidence of the applicant and Mrs Byrne about the location of the backpack, with the applicant saying there was no specific place where the backpack was left in contrast with the evidence of Mrs Byrne in this regard and as to what would occur with any documents Mrs Byrne found in the backpack.

[52] As to the signing of the release, the evidence indicated that, following further correspondence from her, Mrs Byrne was informed that her claim had been declined, that her claim would need to be pursued through the respondent’s insurance services area and that she would have to pursue matters through her own legal channels. Mr Seck submitted it was Mrs Byrnes’s correspondence dated 17 March 2010, in which Mrs Byrne cited the internal maintenance document, which triggered the entire investigation.

[53] Mr Seck submitted that, drawing all matters together, the conclusion to be drawn on the balance of probabilities was that the applicant more than likely gave the document to Mrs Byrne or at the very least allowed her to use the document for her personal gain in making a claim for medical expenses. Mr Seck also noted Mrs Byrne had informed the investigator she had obtained the document from the applicant. Mr Seck submitted there was more than sufficient evidence to conclude the applicant gave the document to Mrs Byrne in breach of the code of conduct. As to the evidence that work-related emails had been sent by the respondent to the applicant using Mrs Byrne’s email address, the salient difference was that the applicant disclosed the internal maintenance document to Mrs Byrne for her personal gain; the other documents did not have the import or characteristics of the document used for personal gain.

[54] I might note, interposing in the summary of Mr Seck’s submissions, that Mrs Byrne signed a release form on 3 April 2010 and subsequently was paid the $177.99 for her medical expenses. The respondent’s solicitors, in a written submission dated 26 March 2011, noted that the release was signed on 3 April 2010, shortly after the investigator had interviewed Mrs Byrne on 30 March 2010. There was an available inference, it was submitted, that Mrs Byrne signed the release only after she knew an investigation had commenced so as to secure the payment of her medical expenses before any potential adverse findings could be made and, as a result, the respondent potentially withdrawing its offer of payment.

[55] Mr Seck submitted the respondent undertook an exhaustive process in ensuring the applicant had an opportunity to respond to the allegations. As to the submissions by Ms Lynas Torr that the penalty of dismissal was disproportionate to the nature of the conduct, Mr Seck submitted this might be accepted if the applicant had, for example, acknowledged mistake or error and asked that he be given a second chance. The applicant had not done this. Rather, at every stage, the applicant would not admit the conduct had taken place and instead attributed matters to Mrs Byrne. Had the applicant expressed contrition and acknowledged culpability, things might be looked at completely differently. Mr Seck submitted the applicant’s lack of admission of wrongdoing and contrition puts matters into “a wholly different territory”. It is not simply a matter of looking at whether the penalty was harsh in dealing with circumstances where the applicant’s honesty and trustworthiness are at the heart of the case, irrespective of the amount of money involved. Mr Seck submitted that Applicant v Virgin Australia[2011] FWA 5596 and Petrosillo v Coles Supply Chain Pty Ltd[2009] AIRC 3 were examples of cases involving less money than was involved in this application and where the issue went to the question of honesty and trust. Mr Seck submitted those issues of honesty and trust also apply in this application. Irrespective of the applicant’s extensive period of service with the respondent, the evidence demonstrated he had acted dishonestly and contrary to the code of conduct. The seriousness of the dishonesty, regardless of the length of service, meant that any argument the dismissal was harsh cannot be sustained.

[56] Mr Seck submitted that even if some form of relief were considered appropriate, the applicant should not be reinstated. The applicant, in his role as a passenger service supervisor, worked in a position that was the most senior attendant on the XPTs, with responsibility for safety and service on the trains in question. Further, there had been a mutual breakdown in trust as between the applicant and his operations team leader, as demonstrated in the evidence respectively given by each of them. Without attributing any blame, Mr Seck noted there had been objective delay and this was a factor which needed to be considered in relation to reinstatement. Mr Seck also made submissions about any money orders that might be made in circumstances concerning the applicant’s medical fitness, and other matters related to compensation.

Applicant’s submissions in reply

[57] In closing, Ms Lynas Torr submitted there were several things she would like to say about Mr Seck’s submissions but it might not be appropriate. She submitted Mr Seck made some very broad, sweeping statements which she could not dispute because she did not have a lot of the documents. Ms Lynas Torr submitted she disagreed with many things said in Mr Seck’s submissions, but because she had an incomplete set of documents she was not really in a position to dispute a lot of what he had said. Ms Lynas Torr submitted she had never seen, or did not recall seeing, the “so-called” letter Mrs Byrne wrote to the MP. Further, Ms Lynas Torr submitted, albeit for reasons she could not recall, the PSS did not give evidence. As to the trip reports that had been written by the applicant, Ms Lynas Torr submitted these documents are handed-in and stay at the workplace; they are not taken from the depot. Ms Lynas Torr submitted that in the internal maintenance document that was left in the applicant’s pigeonhole there was no reference whatsoever to airbags at all; it speaks about varying heights.

[58] Ms Lynas Torr submitted the cases to which Mr Seck referred in his submissions did not apply to this application. Ms Lynas Torr submitted that Mr Seck’s contention the applicant and Mrs Byrne had colluded to concoct a story seemed to be drawing a “very long bow”. Ms Lynas Torr submitted the applicant was, as she recalled it, adamant in his evidence that he did not know anything about the injury and the evidence of the words he used to Mrs Byrne indicated he was not very sympathetic when she told him. Ms Lynas Torr submitted she did not dispute the fact that Mrs Byrne probably did injure herself on the train but the applicant certainly did not find out about it until much later, several days later. Ms Lynas Torr submitted the applicant did not derive any direct benefit whatsoever from whatever it was that Mrs Byrne did or did not do. Ms Lynas Torr submitted she could not add anything further.

Consideration

[59] The booking:Mrs Byrne’s initial assertions to the investigator and to the MP that she made the booking in person at the Grafton travel centre may be regarded as unreliable. The question that then relevantly arises is whether Mrs Byrne or the applicant made the telephone booking through the Casino travel centre.

[60] Mrs Byrne does not have an independent recollection of the particular booking officer with whom she spoke, but that does not necessarily seem surprising if it were otherwise accepted she had made the booking. Notwithstanding a greater level of apparent certainty suggested in his witness statement, the booking officer conceded in cross-examination he does not have an independent recollection of whether he spoke to the applicant or Mrs Byrne in making the booking, but that also seems unsurprising given the volume of bookings he processes and the passage of time. For his part, the applicant initially advised the investigator that he regretted he did not recall the alleged incident as alleged and but also advised (and later specifically reconfirmed) that he had no involvement in the booking (the booking to which reference was made was clarified by the investigator). In the proceedings, the applicant deposed the booking was made without his knowledge, assistance or consent; and that he had no knowledge of the booking until RailCorp alerted him to the allegation during the initial stages of the investigation.

[61] I note that there was some irregularity in the records about the identity of which employee was logged-on to the booking system and which employee processed the booking. The evidence of the booking officer satisfactorily explained this irregularity. The booking officer’s evidence also described matters as to his practice in making bookings involving employee gold pass holders and spousal gold pass holders. The booking officer also gave evidence that he had never ticketed a telephone booking for a holder of a spousal gold travel pass because he only tickets telephone bookings from RailCorp employees with whom he is familiar. He deposed that if a spouse wanted to ticket a travel booking, he would require attendance at the booking office and production of the spousal gold pass prior to ticketing a booking. Although Mrs Byrne said that she and the booking officer knew one another, that did not accord with the evidence of the booking officer. Even if it were accepted that Mrs Byrne and the booking officer had met or knew each other, the booking officer’s evidence remains that he does not make gold pass bookings from spouses unless he personally sights the gold pass. For the reasons given in his evidence, it seems most unlikely the booking officer would have processed a telephone booking from Mrs Byrne.

[62] While there was unchallenged evidence that the booking officer had processed other telephone bookings from the applicant, the evidence of Mrs Byrne was that she had hitherto always made her bookings in person at the Grafton travel centre. If Mrs Byrne made a telephone booking through the Casino travel centre, this would have represented a departure from her established practice. However, if the applicant made the telephone booking through the Casino travel centre, that would be consistent with at least some of the bookings he had previously made with that particular booking officer. Mrs Byrne’s explanation of why she departed from her practice of making bookings in person at the Grafton travel centre and instead determined to make a telephone booking through the Casino travel centre did not fare well in cross-examination.

[63] Considering the forgoing aspects of the evidence, I incline to the view that the applicant made the telephone booking and not Mrs Byrne. I consider that the evidence as to the means by which the ticketing system works is a further indicator of who was more likely to have made the booking in question. Mrs Byrne, apparently unaware of the technical aspects of the operations of the ticketing system involving bookings for gold pass and spousal gold pass holders, suggested the booking of two names rather than just her own was the result of human error by the booking officer or the result of some type of computer-generated linkage of her name and that of the applicant. That is, Mrs Byrne deposed as to the booking in her first statement:

“8.5 I identified myself by name and asked the person if they needed my Gold Pass information.

8.6 They said “No no no, it’s on the computer”.

8.7 I told the person I spoke to that “I need to book myself to Gosford on 12 December, returning on 13 December”.

8.8 I believe from past experience that whenever a spouse makes a booking on the CountryLink system that the employee’s name comes up first and the CountryLink staff then add the spouse to the booking and remove the employee if they are not travelling.

8.9 At no time during my discussion with CountryLink on 8 December 2009 did I ask for or acknowledge a booking for [the applicant].”

[64] The evidence in the respondent’s case, given by the booking officer, indicated that Mrs Byrne’s evidence as to her understanding of the booking system was incorrect. The evidence from the booking officer was:

“... Mrs Byrne states that it is her understanding that when a spouse makes a booking, the employee’s name comes up first in the PNR system and that a staff member is required to add the spouse to the booking and, if the employee is not travelling, remove the employee from the booking. Mrs Byrne’s understanding is not correct. Both the employee and the spouse need to be added separately to a booking. This is done by entering, in the case of the employee, the employee number, and, in the case of a spouse, the spouse’s travel gold pass number.”

[65] The booking officer was not cross-examined on this aspect of his evidence as to the operation of the booking system and nor was there any other challenge to its technical accuracy. Further, the evidence in the form of a screen dump from the respondent’s Orion booking system records the applicant, rather than Mrs Byrne, as being the “Main Contact”.

[66] It became objectively apparent after Mrs Byrne’s interview by the investigator and after her complaint to the MP that the booking had not been made by her in person at the Grafton travel centre. I consider there is cause to accept Mr Seck’s submission that Mrs Byrne determined to tailor her story after it was objectively established that the booking was not made at the Grafton travel centre but through the Casino travel centre. In rejecting the evidence of Mrs Byrne that she made the booking by telephone through the Casino travel centre, it follows that I also reject the applicant’s denial of having made that booking.

[67] I am satisfied, on the balance of probabilities, that it was the applicant rather than Mrs Byrne who made the booking.

[68] The injury claim: In the Grafton to Gosford train journey, Mrs Byrne hurt her left big toe as a result of a kicking it due to a difference in the height of the carriages. It was common ground Mrs Byrne spoke to the PSS about her sore toe and that the PSS tended to her. It was also common ground Mrs Byrne stated to the PSS that it was unnecessary for the PSS to complete a casualty report form, despite the offers from the PSS to Mrs Byrne in that regard.

[69] The evidence indicated that when Mrs Byrne returned home to Grafton she was by then wearing a sling on her arm. The applicant said that as Mrs Byrne had her arm in a sling, he would have asked her what happened. The applicant said that, as a normal comment, he would have asked Mrs Byrne whether she had reported it. The applicant also said that when Mrs Byrne told him about the accident he was not overly sympathetic, and the evidence of the comment he made to her was indicative of that. The applicant explained in his evidence that he considered Mrs Byrne should have been more aware.

[70] On 14 December 2009, Mrs Byrne attended for medical treatment with respect to a sore shoulder. An x-ray indicated there was no break or fracture.

[71] The applicant telephoned the PSS who had tended to Mrs Byrne after she hurt her toe, as outlined in the witness statement of the PSS. The applicant informed the PSS that Mrs Byrne wanted to speak to her. On 14 December 2012, Mrs Byrne telephoned the PSS, having obtained her direct work telephone number from a list of telephone numbers that was on a fridge. Mrs Byrne said she telephoned the PSS as a courtesy to advise her she was making an injury claim and did not want the PSS to get in trouble for not having made a report. In the course of the conversation, Mrs Byrne, for the first time, raised with the PSS the issue of a fall and a shoulder injury. Mrs Byrne gave the PSS some details about the fall and said she thought the PSS must have heard her falling and hurting her shoulder, as it had made quite a loud noise. The PSS said she did not hear her fall.

[72] Several days later, having misgivings about not having made a casualty report (albeit at Mrs Byrne’s request), the PSS sought advice from her team leader but without naming Mrs Byrne. On the advice of the team leader, the PSS subsequently completed a casualty report. The PSS’s report appropriately referred only to what had been reported to her by Mrs Byrne on the actual day of the travel. The report did not include any further information about an alleged fall and shoulder injury that Mrs Byrne had first raised with the PSS in the telephone call on 14 December 2009.

[73] On about 15 or 16 December 2009, the applicant drove Mrs Byrne to Grafton train station to obtain a form concerning the injury. Mrs Byrne stayed in the car while the applicant obtained a form. Mrs Byrne later completed the form. According to their evidence, the applicant did not read the form or assist Mrs Byrne in completing the form. Once the form was completed, the applicant again drove Mrs Byrne to Grafton train station to submit the form. The applicant and Mrs Byrne both went to office of the applicant’s operations team leader to submit the form. The operations team leader advised them the wrong form had been completed and that other steps needed to be undertaken, including telephoning customer relations.

[74] In her injury form dated 20 December 2009, Mrs Byrne wrote that she had caught her foot between the floor of cars A and B, while walking to the buffet from car A. The form indicated she had injured her left arm/shoulder and big toe on the left foot. In the section of the form concerning contributing factors involving faulty equipment/fixtures, Mrs Byrne wrote that airbags made the floor lift. The evidence of the applicant and Mrs Byrne was that they did not have any discussion at all about airbags/uneven floor heights before she lodged the form.

[75] The claim that was filed by Mrs Byrne for medical expenses apparently was not initially regarded as being contentious. Mrs Byrne had been medically examined in connection with her injured shoulder and submitted a claim for her medical expenses in the amount of $177.99. The respondent was prepared to pay the sum of $177.99 as out-of-pocket expenses. Mrs Byrne objected to signing a release document as a condition of receiving the payment of $177.99. As Mrs Byrne would not sign the release form the respondent would not pay the out-of-pocket medical expenses. On 8 March 2010, one of the respondent’s customer relations employees telephoned Mrs Byrne and informed her, among other matters, that her claim would now have to be pursued through the respondent’s insurance services area, that her current claim was declined and she should seek legal advice. Mrs Byrne ultimately signed the release, shortly after she was interviewed by the investigator.

[76] The internal maintenance document: From around the time Mrs Byrne began taking steps to pursue a claim against the respondent, the trip reports prepared by the applicant began to note airbags and height differences. The applicant conceded in the proceedings that he did not know exactly what caused the height differences and that differences could be caused by, for example, the bogies. That is, the cause of the height differences could properly be determined only by train maintenance employees, although, according to the applicant, the airbags or the bogies were the usual reason.

[77] A report dated 6 January 2010 prepared by maintenance/service employees employed at the XPT’s maintenance depot indicated that the height differences between the carriages were assessed as being “within tolerance”.

[78] There was a subsequent chain of emailed correspondence between employees of the respondent about carriage heights. The chain began with an email dated 8 January 2010 from an on-board performance manager, which read:

“Can we please get someone to have a look at the step between the carriages while the services are in the depot to see if any are higher on one side. Please see attached report.

[79] In response, an XPT service manager emailed on 11 January 2010:

“There is a story to these differences and I hope you have a couple of minutes to stay with me while I try and explain it.

Due to different wheel sizes there will always be different heights between cars and we have in the past adjusted the cars to be as close as possible to the same heights.

There was an audit carried out and we where [sic] advised that we were outside the guidelines when these cars were adjusted to suit, so every car was then checked at set [sic] at the correct heights as per the guidelines.

So hence car heights will always vary and hope this goes a little way into explaining why it was done.

But at the end of the day it’s due to new and old wheels.”

[80] A further email dated 12 January 2010 in the chain relevantly read: “Feedback for [the applicant] regarding step height between carriages”. A paper copy of this email chain was left in the applicant’s pigeonhole, marked in pen to his attention - being the document I have referred to in the decision as the internal maintenance document.

[81] On 17 March 2010, Mrs Byrne sent correspondence to an employee of the respondent in the following terms:

“I am writing to you regarding a matter that I am concerned about with Customer Relations.

I had an accident onboard a train where I was hurt and duly reported the matter to Customer Relations. I have attached my correspondence re this matter for your perusal and information.

I received a telephone call from [named employee 1] in Customer Relations on 8th March at 447pm. [Named employee 1] informed me he was in possession of my correspondence (attached above) and as I declined to sign the Waiver sent to me by mail that my claim is now denied.

I have in my possession a document from [named employee 2] - XPT Service Manager to [named employee 3]. This document clearly outlines the reasons why “there will always be different heights between cars” and “car heights will always vary”.

On the basis of this information I am re submitting my claim for injury suffered on NT36 Grafton to Central Coast 12th December 2010.

I would appreciate your written response by close of business FRIDAY 19 MARCH 2010.”

[Bold and capitals in original]

[82] It may be seen from the fourth paragraph of Mrs Byrne’s correspondence dated 17 March 2010 that she advised the respondent she had in her possession a RailCorp document; and she quoted from that document in support of resubmitting an injury claim against the respondent. It was this correspondence from Mrs Byrne dated 17 March 2010 which triggered everything that followed in terms of the investigation.

[83] On a consideration of the evidence and submissions, I considered as implausible the evidence of the applicant and Mrs Byrne concerning her possession of the copy of the internal maintenance document. On the balance of probabilities, I consider that Mrs Byrne came into possession of the document because the applicant gave it to her, as she initially stated to the investigator. I consider it unlikely that Mrs Byrne would have been able to advise the investigator that the document had been placed in the applicant’s pigeonhole, unless the applicant had informed her about that. There could have been any number of ways, other than placement in the applicant’s pigeonhole, the document could have been received by the applicant, such as being handed the document by any number of employees. Mrs Byrne’s response to the investigator in relation to the pigeonhole tends to support Mr Seck’s submissions that there had been (at least some level of) discussion between the applicant and Mrs Byrne about the internal maintenance document and most probably in connection with Mrs Byrne’s claim against the respondent.

[84] The evidence from the applicant was that he had taken the internal maintenance document home in his backpack, but did not know its contents because he had not read it; and, having taken the document home, he did not thereafter (i.e. after it had been surreptitiously removed from his backpack by Mrs Byrne) notice it was missing. I consider this evidence was implausible and also note that the applicant’s operations team leader gave uncontested evidence that, a week or two after he had placed the internal maintenance document in the applicant’s pigeonhole, the applicant acknowledged receipt of the document by thanking him for providing feedback on the height difference between the carriages.

[85] I should note that while a good deal of the respondent’s submissions went to the reference in Mrs Byrne’s injury form to the airbags lifting the floor and the coincidental timing and content of applicant’s trip reports on the same topic, the import of those submissions was, as I understand it, to give form and substance to the respondent’s contention the applicant had, in breach of the code of conduct, provided the internal maintenance document to Mrs Byrne for her benefit. That is, Mr Seck submitted the conclusion to be drawn on the balance of probabilities was that, given all the circumstantial evidence, the applicant more than likely gave the internal maintenance document to Mrs Byrne for reason of her personal gain in her claim for medical expenses. In this respect, I note it was the applicant who chastised the applicant for not reporting the injury. It was the applicant who made a telephone call to the PSS to inform her that Mrs Byrne would be contacting her; and that contact subsequently involved Mrs Byrne raising for the first time her fall/sore shoulder, being a fall she had not otherwise recounted to the PSS when discussing her sore toe. The applicant also drove the applicant to and from Grafton train station in connection with obtaining and submitting paperwork concerning the injury. I consider it improbable that the applicant would not have discussed airbags in the context of the differences of the carriage height as being the cause of the fall and I think it likely he would, as part of a pattern of his earlier involvement in claim-related matters also have given the internal maintenance document to Mrs Byrne considering its potential relevance to the injury claim.

[86] While I have concluded, on the balance of probabilities, that the internal maintenance document did not come into Mrs Byrne’s possession in the manner described in the evidence advanced in the applicant’s case, I should also make the following observation. I think Mrs Byrne most likely acted on her own in quoting from the internal maintenance document in her correspondence dated 17 March 2010. I accepted, on this point, the applicant’s evidence that had he known Mrs Byrne was proposing quote the internal maintenance document in relation to her claim against the respondent, he would have said “no”.

[87] Whether there was a valid reason for the dismissal related to the person’s capacity or conduct: On the evidence, Mrs Byrne had won two complimentary tickets to attend a concert by the band “Human Nature” which was being performed in the Hunter Valley, and was proposing to attend the concert with a friend who lived in the vicinity of Gosford. There was nothing on the evidence to suggest, for example, the tickets had been booked so that a person other than the applicant fraudulently could have free travel with Mrs Byrne on tickets booked by the applicant in his own name. The highest the respondent’s case took matters was that the applicant may have booked a ticket for himself as well as for Mrs Byrne so she would have the benefit of an empty passenger seat next to her for additional space. While the matter is unsolved, I accept Mrs Seck’s submission it is not necessary for me to conclude why the booking was made by the applicant. The price of the return train tickets, or the potential value foregone if the ticket booked in the applicant’s own name had been sold to a member of the travelling public, was a total of $257.80.

[88] I have concluded, on the balance of probabilities, it was the applicant who made the booking, as contended by the respondent, but I do not consider that, without more, the actions of the applicant in booking the unused ticket for himself would have given the respondent a valid reason for the dismissal.

[89] Even if it were accepted, as the respondent contended, that the applicant failed to ensure the security of the internal maintenance document, then any such alleged security failure (in his home from his wife, after all) would not give reasonable grounds for the respondent to dismiss the applicant. However, I consider it more probable than not that the applicant actually showed or provided the internal maintenance document to Mrs Byrne for her information - stemming from reasons directly or indirectly related to her injury claim against the respondent - rather than it being a case of her secreting it from his belongings without his knowledge or acquiescence and without the applicant noticing the document had gone astray. Although I have concluded, on the balance of probabilities and contrary to the evidence of both the applicant and Mrs Byrne, that Mrs Byrne did not come into the possession of the internal maintenance document in the manner described in the evidence in the applicant’s case, I do not consider that, without more, the respondent would necessarily have had a valid reason to dismiss the applicant for giving or showing Mrs Byrne the document.

[90] The transgressions concerning the unused tickets and showing or providing to Mrs Byrne the internal maintenance document (which included relevantly innocuous and unremarkable observations about why there will always be differences in carriage heights) would not, in my opinion, have constituted, or at least strongly constituted, a valid reason for dismissal. If the applicant had been dismissed for either of these reasons or for these combined reasons, I consider my discretionary intervention in the decision of the respondent to dismiss the applicant would have been likely, if not almost assured, on the basis the dismissal was harsh, unjust or unreasonable, particularly given the applicant’s more than three decades of employment with the respondent.

[91] The respondent concluded on the basis of its investigations, as I have also inferred to a requisite degree of satisfaction based on my assessment of the evidence and submissions, that the applicant dissembled about the booking in the investigative process, as well as in these proceedings. I have also concluded, on the balance of probabilities, that Mrs Byrne did not come into possession of the internal maintenance document in the way it was contended in the evidence in the applicant’s case in these proceedings. In this respect, I note the observations of Schmidt J in Lawrence v Catholic Education Office, Sydney [2002] NSWIRComm 115:

“77 ... In circumstances where allegations of misconduct arise, it is commonplace for the employee concerned to vehemently protest his or her innocence. So, too, do those charged with and even those convicted of crimes. Nevertheless, decisions must be made by employers, as to whether or not such protestations are to be accepted. The continued making of such protestations, cannot of itself lead to the conclusion that misconduct has not occurred.”

[92] In circumstances where I accept the respondent’s submissions about the dishonesty by the applicant in the investigation, I am satisfied the dishonesty itself grounded a valid reason for dismissal notwithstanding my conclusions as to the unused booking and the internal maintenance document. I am unable to conclude that the dismissal against the background of respondent’s reasonably-based conclusion as to the applicant’s dishonesty in an investigative process was unreasonable or unjust or, even fully considering the applicant’s length of service, harsh. I accept Mr Seck’s submission that it was the finding as to dishonesty that entirely changed the complexion of matters.

[93] Whether the person was notified of that reason: The respondent was notified of the reasons for the dismissal, as set out in the letter terminating his employment.

[94] Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person: By letter dated 21 July 2010, the applicant was requested to attend a disciplinary interview to give him the opportunity to provide further information, but the applicant did not receive that letter until after the date scheduled for the interview. The applicant subsequently responded in writing to allegations against him, after he exercised his prerogative to decline to participate in person in any interview. Ms Lynas Torr submitted that no one spoke to the applicant about the allegations, but this submission must be considered in the context of the circumstances whereby the applicant was given the opportunity to participate in personal interview/s but declined to do so; he determined, instead, to provide written responses.

[95] Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal: There was no evidence to support a conclusion the respondent unreasonably refused to allow the applicant a support person; he was invited to have a support person in any interview. After the applicant declined to be interviewed by the investigator, the applicant provided written responses prepared by, or with the assistance of, Ms Lynas Torr.

[96] If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal: The dismissal did not turn on performance-related issues and, thus, the question of warnings about unsatisfactory performance does not relevant arise. The applicant did not have an unblemished disciplinary record, but the prior warnings were very dated and are otherwise of no relevance.

[97] The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal/human resources expertise: The respondent employs about 16,000 employees. It has in-house investigators and dedicated human resource management specialists. The investigation that led to decision respondent’s decision to dismiss was comprehensive, as shown by a reading of all the materials contained in the report prepared by the investigator.

[98] Any other matters that Fair Work Australia considers relevant: Ms Lynas Torr submitted the allegations concerning the applicant seemed largely to be related to Mrs Byrne rather than the applicant himself. I accept aspects of the investigation focused squarely on Mrs Byrne. I have little doubt that the role of Mrs Byrne in the sequence of events and matters including, but not limited to, as Mr Seck aptly described it, her “wildly inconsistent” assertions concerning the booking, may have adversely coloured the respondent’s perceptions about the applicant himself. Nonetheless, I accept that the ultimate focus of the respondent’s investigation was the conduct of its own employee, rather than the employee’s spouse. To the extent that Mrs Byrne was relevant, the executive summary to the investigation report described matters in the following way: “Mr Byrne gave false and/or misleading information in written responses to allegations and other documents and adopted as true and correct statements made by his wife in relation to matters subject of this investigation, which were false and/or misleading.” This summation highlights why it was relevant for the respondent to investigate Mrs Byrne.

[99] Ms Lynas Torr is, I understand, the applicant’s sister and a Queensland-based barrister. Ms Lynas Torr represented the applicant during the investigation period which preceded the dismissal. The responses and communications provided to the respondent by Ms Lynas Torr on behalf applicant, and her examination of witnesses and her submissions in the proceedings, were, put at its lowest, not characteristic of those one might normally expect from a barrister. Given my concerns about the presentation of the applicant’s case, it is appropriate I should note that I do not consider I would have reached any different conclusion about the essential elements of the case relied upon by the respondent irrespective of who had represented the applicant.

Conclusion

[100] Ms Lynas Torr submitted that the penalty of dismissal was disproportionate to the nature of the alleged conduct (being conduct which was, in any event, denied) particularly considering the applicant’s length of service. Mr Seck submitted that if the applicant had, for example, acknowledged mistake or error and asked for a second chance then Ms Lynas Torr’s submission might be accepted by Fair Work Australia; but the applicant would not admit the conduct had taken place and instead attributed matters to Mrs Byrne. Mr Seck submitted that the lack of admission of wrongdoing and contrition put matters into “wholly different territory”. As Mr Seck’s submissions noted, had it not been for the applicant’s attempted cover-up in the investigation, some form of action well-short of dismissal may have been determined by the respondent. Mr Seck submitted that, irrespective of the amount of money involved, the applicant’s honesty and trustworthiness were at the heart of the case - and this needed properly to be considered in relation to the question of whether the dismissal was harsh and, even if there was a finding in the applicant’s favour, why reinstatement should not be ordered. I accept that the necessary incidents of trust and confidence within the employment relationship have foundered, notwithstanding more than three decades of service.

[101] While I do not make this finding lightly or without misgivings given the applicant’s length of service and what I consider, in the scheme of things, to be the essentially minor infractions in making an unused travel booking and providing to Mrs Byrne a copy of an internal maintenance document with unremarkable observations concerning differences in carriage heights, I have not been satisfied, in the end, the applicant has established a case the dismissal was harsh, unjust or unreasonable - given what I accept was the applicant’s ultimate dishonesty in the investigation. In this respect, the respondent concluded, as have I on the balance of probabilities, that the applicant made a knowingly false statement. To compound matters, it must be accepted, I think, as Mr Seck submitted, the applicant was not only dishonest in the investigation but apparently acted in connivance with Mrs Byrne in relation to what Mr Seck described as their “stories”. In this regard, I accepted Mr Seck’s submissions that much of the evidence in the applicant’s case was irreconcilably contradictory, implausible or otherwise unsatisfactory.

[102] The applicant has not established a case he has been unfairly dismissed. An order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

D Lynas Torr of counsel, for Luke Byrne

M Seck of counsel, for Rail Corporation New South Wales T/A RailCorp

Hearing details:

2011.
Grafton:
14, 15 September.

2012.
Sydney:
20 March.

Final written submissions:

26 March 2012.

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