Rail Corporation NSW v Aravanopules

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65
APPELLANT:	Rail Corporation NSW
RESPONDENT:	Aquiles Aravanopules
INSURER:	Transport for NSW
FILE NUMBER:	A1-909/19
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	18 June 2019
DATE OF APPEAL DECISION:	17 December 2019
SUBJECT MATTER OF DECISION:	Section 11A(1) of the Workers Compensation Act 1987 – reasonable action with respect to ‘discipline’; duty to afford procedural fairness
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Barter, counsel
Hicksons
Respondent:
Mr J Trainor, counsel
Schreuders
ORDERS MADE ON APPEAL:	1.    The Arbitrator’s decision dated 19 June 2019 is confirmed.

INTRODUCTION, BACKGROUND AND ARBITRAL PROCEEDINGS

1. Aquiles Aravanopules (the respondent) came to Australia from his native Chile in 1996. He was employed by Rail Corporation NSW (the appellant) from 1999. He started with the respondent cleaning rail cars, and ultimately became a Security Monitoring Facility Supervisor in 2011. He supervised a team of eight people.[1]

   [1] Respondent’s statement 28/4/16 (respondent’s statement), [3], [7], [21], [26], Application to Resolve a Dispute (ARD), pp 20–23.

2. On about 23 October 2015, Marilene Caranto and Heidi Caranto (two sisters who were in the respondent’s team) approached him and complained about harassment. They said the respondent had been following them to the toilet and touching them. The respondent said he had previously thought he “was good friends with these women” and was “hurt and shocked by these allegations”.[2] He stated that he sent a report of these matters to his direct report (Scott Franke) and another manager (Paul Linsley) and requested a meeting. The respondent met with Messrs Franke and Linsley on about 10 November 2015 and denied having acted inappropriately towards the women.[3] On 23 November 2015, a meeting was held involving the respondent, Marilene Caranto, Heidi Caranto, Mr Franke and Mr Linsley. The matter was referred to the “Workplace Conduct and Investigation Unit”. On 27 November 2015, the respondent was removed from his supervisory duties pending an investigation and was put to work in a different area.[4]

   [2] Respondent’s statement, [32]–[35].

   [3] Respondent’s statement, [39]–[40].

   [4] Wendy Klaassen, Investigation Report (Klaassen report), Reply p 45, respondent’s statement [47].

3. The respondent came under the care of his general practitioner, Dr Rastogi, for psychological complaints from about 7 March 2016, and was off work from about 29 March 2016.[5]

   [5] ARD, pp 33 and 159.

4. An investigation was conducted by Ms Wendy Klaassen. As part of that process interviews were conducted with Ms Marilene Caranto, Ms Heidi Caranto, and Ms Josephine Herry, who also had worked in the respondent’s team and complained that she had been touched. Four other members of the team were also interviewed, and Mr Franke provided some information.[6]

   [6] Klaassen report, Reply, p 73.

5. Mr White, the Acting Principal Manager, Workplace Conduct and Investigations Unit at Transport for NSW, wrote to the respondent on 22 March 2016. The letter described allegations involving the three women who…