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http://www.industrialrelations.nsw.gov.au/resources/dewick.pdf
Chairman: J Parkin
Board Members: C Finegan
B Newham
Date of Hearing: 16 & 17 July 2007
Date of Decision: 31 July 2007
IN THE MATTER OF Appeal No.
TD/575 of 2007 by Craig Ian DEWICK
against a decision of RailCorp to
dismiss him from his employment as
Driver, Waterfall Depot.
D E C I S I O N
The appellant, Mr Craig Ian Dewick, commenced employment with RailCorp (and its
predecessors) on 2 February 1987 as a cadet. The appellant worked as a Train
Driver until 17 May 2007, being the date of his dismissal.
On 17 May 2007, the appellant was dismissed for breaches of State Rail's Code of
Workplace Standards and Train Working Procedure 100. Specifically it is alleged
that:
Allegation 1
On 13 May 2006, Mr Dewick operated a train service (15E run) in a manner so as
to cause a deliberate delay to the service. The alleged deliberate delay to the
service includes (but is not limited to) Mr Dewick failing to utilise the full
effectiveness of the equipment he was operating. Specifically, Mr Dewick did not
use 4 notch of the Master Controller throughout his journey from Waterfall to Bondi
Junction.
Allegation 2
2
On 30 May 2006, Mr Dewick failed to follow previous repeated directions from
management regarding the submission of Train Status Reports (TSR) for non-safety
critical faults and as a result, caused delays to a train service (15E run).
Allegation 3
On 21 March 2005, Mr Dewick made an unauthorised public comment about the
organisation by means of an email to the Daily Telegraph.
Allegation 4
Mr Dewick maintains the following websites in which he makes unauthorised public
comments about the organisation:
www.rctcc.org
www.railzone.org
Allegation 5
Mr Dewick has been engaged in outside employment without obtaining written
permission from management.
Allegation 6
Mr Dewick has failed to follow a management direction not to place unauthorised
notices to staff at various locations on RailCorp property, including meal rooms.
Appearances
Ms Leah Burland appeared on behalf of RailCorp and called the following
witnesses:
· Mr John Langbourne, Senior Operations Standards Manager, RailCorp
· Mr Mark Ridges, Senior Operations Standards Manager, RailCorp
· Mr Colin Handsaker, Operations Standards Manager, RailCorp
· Mr Ricky Anderson, Deputy Regional Crewing Manager, RailCorp
· Mr Patrick Duffield, Regional Crewing Manager, RailCorp
· Mr George Baias, Crewe Area Manager, RailCorp.
Mr Alan Barden of the Rail Tram and Bus Union appeared on behalf of Mr Dewick
and called only Mr Dewick is a witness.
3
Mr John Langbourne
Mr Langbourne explained to the Board that he was a qualified Data Logger Analyst
and that his statement (Exhibit 1, Tab 25) was true and accurate.
It was explained to the Board that the trains Data Logger recorded all functions
carried out on a train, including speed, time in and out of stations, what notch (gear)
the driver has engaged, as well as recording the state of the trains mechanical
functions.
Mr Langbourne then took the Board to the Data Logger printout of run 15E for
30 May 2006 (Exhibit 1, Tab 25, appendix 1). He explained that the Data Logger
printout showed that the train left Waterfall two minutes late and arrived at its
destination two minutes late. He explained that the Data Logger also showed that
the driver at no time during his run engaged notch 4.
He impressed upon the Board that the Data Logger details were absolutely reliable
in terms of the details of events and times.
Whilst being cross-examined by Mr Barden, Mr Langbourne agreed that the
catalogue did not reflect any restrictive indicators that the driver may have faced
during the trip. However he then went on to detail the fact that his investigation had
shown that there were no restrictions on the driver during the trip.
When asked to explain why it was that trip details document (Exhibit 1, Tab 9) did
not show run 15E as leaving Waterfall late, Mr Langbourne told the Board that this
information was generated by a computer, which would in his view explain the
inconsistency.
Mr Langbourne stated that it was his view that by not using notch 4 during the
entirety of run 15E, the appellant did not meet his responsibilities as stated in TWP
100 (Exhibit 1, Tab L, page 8 of 14) specifically, the driver must:
4
"endeavour to maintain the timetable and any special operating conditions
applicable to the train, without compromising the safety of or cause
inconvenience to passengers"
Mr Ridges
Mr Ridges told the Board that his statement behind Tab 24 of Exhibit 1 was true and
accurate. He then went on to explain in great detail what a Train Status Report
(TSR) was, how they should be dealt with by train drivers, the allocation of time to fill
them in and the difference between safety critical and non-safety critical reports.
He detailed a long-running process of interviews, informal chats, retraining and
formal directions that were given to the appellant as a result of his continued refusal
to deal with TSR's in the fashion outlined by management (Exhibit 1, Tabs 1, 2, 3 &
4).
When asked during cross-examination if there was a difference between how TSR's
were handled, if there were safety critical or non-safety critical, Mr Ridges told the
Board that there was a difference and it was outlined in TWP 118 on page 4 of 4
(Exhibit 1, Tab L).
He explained that the basic difference is that if there is a safety critical issue, the
train will not move unless the fault is repaired or the driver deems the train safe to do
so in spite of the fault and, that with a non safety critical fault, the train will simply go
out and the fault will be reported.
Mr Handsaker
Mr Handsaker told the Board that his statement (Exhibit 1, Tab 22), was true and
accurate.
He went to on to tell the Board that he had counselled the appellant on a number of
occasions (informally) about the number of times he had unduly delayed trains. Also
that he had counselled the appellant on a number of occasions about the ability to
submit a TSR for a non-safety critical issue anywhere on his run.
5
He told the Board that the appellant had continually disobeyed instructions
regarding submission of TSR's for non-safety critical issues.
Mr Handsaker told the Board that he had been to the website that he believed to be
maintained by the appellant that had the banner "RailCorp Train Crew Council Site",
which he said contained, amongst other things, drivers rosters and diagrams as
well as other documents he believed should not be made public.
When asked by Mr Barden if it was clear that TWP 118 required drivers to hand in
their TSRs at the out depot, Mr Handsaker told the Board that it was his view that it
was clear that if the TSR had no safety critical issue, then it could be handed to
RailCorp staff at any station en route.
When questioned about being able to identify the many posters that had appeared
around the stations as those belonging to the appellant, Mr Handsaker explained
that they were easily identified by the header "RailCorp Train Crew Council", which
was the same header that identified the appellant's web site.
Mr Baias
Mr Baias told the Board that his statement (Exhibit 1, Tab 23) was true and
accurate.
He went on to explain to the Board that the appellant put out a newsletter that was
contrary to RailCorp instructions on the same issue (Exhibit 1, Tab 17), specifically
in relation to train working equipment that is required by RailCorp employees who
may be participating in training courses.
He then explained that in spite of written instruction to immediately cease placing
such notices (Exhibit 1, Tab 19), they continued to appear (Exhibit 1, Tab 27).
Mr Baias told the Board that the appellant had been spoken to on a number of
occasions by various managers about how to deal with TSR's and that after one
particular coaching session held on 17 January 2006, the appellant had signed the
6
document which clearly sets out what the procedures are regarding non-safety
critical TSR's.
He told the Board that the appellants continued refusal to adhere to management's
instructions on a number of issues had an adverse impact on their ability to manage
other staff and their ability to provide a timely service to the public.
Whilst being cross-examined, Mr Baias agreed that the train crew are expected to
be able to distinguish between safety critical and non-safety critical issues.
He told the Board that the details of the "Daily Telegraph fax" that was sent by the
appellant and later appeared as an article (Exhibit 1, Tab 13), had been sent to the
Crew Operations Manager, seeking his advice on how to deal with the issue.
Mr Anderson
Mr Anderson told the Board that his statement (Exhibit 1, Tab 20) was true and
accurate.
He told the Board that he had had some dealings with the appellant regarding the
website he maintained in relation to the use of the words RailCorp in the banner and
the use of managers names, specifically Ms Vivienne King.
He told the Board he was also concerned about a number of out of date safe
working procedures being posted on the site.
Whilst being cross-examined, Mr Anderson agreed that after discussions with the
appellant, the out of date safe working procedures were removed from the site, as
was the name of Ms Vivienne King. He went on to say that although Ms King's
name had been removed, her initials and title remained in the document, something
he believed would make her just as identifiable to other employees as her name.
Mr Duffield
7
Mr Duffield told the Board that his statement (Exhibit 1, Tab 21) was true and
accurate. He then went on to tell the Board that he had met the appellant on a
number of occasions to reinforce what management expected of him with regard to
TSR's.
He told the Board that in spite of the fact that the trip details document (Exhibit 1,
Tab 9) did not show run 15E as leaving Waterfall late, that the Train Register Book
(Exhibit 1, Tab 8), which shows a run leaving two minutes late, can be taken as true
and correct as this is a legally binding document.
Whilst being cross-examined, Mr Duffield agreed that it is correct that the driver
should make an assessment of risk at the time of inspection to determine whether
an issue is safety critical or not. He also told the Board that he was not aware of the
appellant's secondary employment.
Mr Dewick
The appellant told the Board that he did not cause any deliberate delays on run 15E
and that he relied upon his letter to Mr Hill (Exhibit 1, Tab F) as an explanation to all
charges.
The appellant went on to explain that the secondary employment was the running of
a small part-time business between 1996 and 2005, being deregistered as a
business in the latter part of 2006. He said he believed it had been successful
however he only ever averaged two or three hours of work a week. He also
conceded that he may have received training regarding the steps he should have
taken if engaging in secondary employment.
He told the Board that at no time had he intended to contradict RailCorp
instructions, with the notices that he had placed around various stations. He
explained that although he had been told to desist, he felt that it would be beneficial
to others to continue putting up the notices.
8
The appellant agreed that he did write the e-mail that led to an article being
published in the Daily Telegraph and explained that he was aware of the guidelines
on public speaking on RailCorp issues, but not about writing to the media about
RailCorp issues.
The appellant agreed that he maintains the websites listed in the charges and
pointed out that when asked to make changes to the web sites, he had complied.
He told the Board that he had removed all material that he now knows should not
have been posted.
When cross-examined by Ms Burland the appellant told the Board that although he
had told Mr Lee that the train would be two minutes late when leaving Waterfall, so
that he could wash his hands, he does not believe that there was in fact a delay.
The appellant told the Board that he did not follow specific instructions from his
managers with regard to TSRs as it was his opinion that Waterfall station is the
best station to hand in those reports.
He went on to say that he had placed the notices around the stations, as he felt it
was his duty to help other crew.
He agreed that he had not sought permission to engage in secondary employment
nor had he received permission from the media unit to write the articles that
appeared in the newspapers.
In concluding, the appellant told the Board that he was now prepared to make an
effort to significantly improve his behaviour. He told the Board that he would try to
follow procedures at all times and now believes that he should have been more
careful in the past.
Final Submissions
Ms Burland
During her final submissions Ms Burland reminded the Board:
9
· That in Allegation 1 the delays included, but were not limited to, four notch not
being used during the trip.
· That Tab 8 of Exhibit 1, clearly indicates that train left Waterfall two minutes late
and that the person making the entry is compelled to put in the actual time.
· That Mr Langbourne was clear that the most reliable information regarding the
train and its arrival and departure times came from the Data Logger.
· That regardless of when it left Waterfall, the train was two minutes late at Bondi.
· That, unlike the appellant, other drivers manage to prepare the train, submit
their reports, wash their hands and get their trains out on time.
· That in Allegation 2, it is clear that the appellant had received Code of Conduct
training which includes instructions to carry out lawful directions.
· That the appellant had on numerous occasions received counselling and
instructions regarding proper procedures and that those instructions were clear
and unambiguous.
· That the appellant's refusal to follow lawful instructions undermined RailCorp's
ability to manage staff.
· That in Allegations 3 the appellant has admitted that he had sent two letters to
the Daily Telegraph and that he had not sought appropriate approval to do so.
· That the notices he had posted contained directions that specifically breached
RailCorp Policy.
· That in spite of being counselled about information available on his website,
there remained on that site for a number of years terms such as
"Vince Graham's suck up letter", information on drivers diagrams and letters
regarding disciplinary matters that he knew to be confidential.
· That in Allegations 5 the rules regarding external employment are clearly set out
in the Code of Conduct.
· That in Allegation 6, in spite of the fact that the appellant had been verbally
instructed to cease putting up notices and then given written instruction to cease
putting up notices, he had continued to do so.
· That the appellant had agreed he had run his own business.
· That the appellant has shown by his behaviour that, in spite of receiving formal
training and a number of the briefings, he has proven by his ongoing conduct
that he is unwilling or unable to follow directions.
10
· That the Board should not alter the appellant's punishment of dismissal.
Mr Barden
During his final submissions Mr Barden reminded the Board:
· That in Allegation 1, it is still the appellant if that it is appropriate to hand in his
TSR report at Waterfall as this is the as is the out depot, as described behind
Tab 32 of Exhibit 1.
· That the trip details document (Exhibit 1, Tab 9) shows trip 15E departing on
time.
· That Mr Langbourne, whilst giving his evidence, said he would not engage four
notch at certain places on the run (15E).
· That in Allegation 2, when one looks at instruction TWI 118 and then looks at the
instructions given by management, there is scope for a great deal of confusion
when dealing with safety critical and non-safety critical TSR's.
· That in Allegation 3 the appellant has now clearly committed to make no further
comments to the press.
· That in Allegation 4 the appellant followed instructions given to him by RailCorp
and removed a number of things from his websites.
· That in relation to Allegation 5, the appellant believes that his secondary
employment was within the rules as he was only carrying out between two and
three hours of work per week.
· That in relation to Allegation 6, the appellant believed that he was doing a
service for other RailCorp employees and that the main problem was that he
did not understand the difference between an authorised and an unauthorised
notice.
· That the appellant seeks re-employment with RailCorp and that the Board
should set aside RailCorp's decision to dismiss him.
Findings
Having had an opportunity to review all the evidence before it the Board finds the
following:
· That in relation to Allegation 1, the Board is not satisfied that the charge is
proven, as the driver of any train clearly has the discretion to drive that train in a
11
manner that he feels is safe in the operation of the train (Exhibit 1, Tab L,
Pages 6-14).
· That in relation to Allegation 2, the Board relies upon the Data Logger record
(Exhibit 1, Tab 25) and the Train Register Book (Exhibit 1, Tab 8) to find that
service 15E from Waterfall, left Waterfall two minutes late due to the appellant
handing in his Train Status Report, which, buy his own admission, contained no
safety critical issues (Exhibit 1, Tab 6) and then washing his hands. All of which
were contrary to the repeated instructions given to him by RailCorp
management.
· That in relation to Allegation 3 the appellant, by his own admission, has made
unauthorised public comments about RailCorp by a means of an e-mail, dated
21 March 2005, to the Daily Telegraph (Exhibit 1, Tab 14).
· That in relation to Allegation 4, the appellant, by his own admission, maintains
the websites set out in the Allegation. Both websites contain material making
unauthorised comments about RailCorp, which had to be removed at a later
date by the appellant.
· That in relation to Allegation 5, the appellant, by his own admission, was selfemployed
in a company called Sun Ripened Kernels owned and run by him
(Exhibit 1, Tab 30) from 1995 until it was deregistered the latter part of 2006.
· Given that it had been RailCorp Policy since 1999 to receive permission to
engage in such employment (Exhibit 1, Tab JK), it was obvious to the Board,
given the contents of the appellant's newsletter #6 (Exhibit 1, Tab 27), that he
was fully aware of the requirements of the Code of Workplace Standards.
· That in relation to Allegation 6, the appellant, by his own admission, did not stop
posting his newsletters following a number of management directions to do so.
Decision
It is the Board's view that RailCorp has invested a great deal of time and resources
in Mr Dewick to re-educate, retrain, coach and advise him and that he has in return
shown a grim determination to continue to do only what he believes to be right in
terms of workplace practices.
12
It would appear that Chairman Conroy's remarks in 1994 (Exhibit 1, Tab PQ)
regarding the appellant:
"His presentation in the witness box and the explanations he sought to give
to this Board in relation to his behaviour showed a person who was not
prepared to accept the responsibilities that were cast upon him as an
employee to comply with the rules which are properly maintained by the
State Rail Authority and accepted by employees as appropriate to the
position of an engine person. He was not contrite in any way when giving
his explanation as to the events that had transpired which caused these
allegations to arise, and in fact it was not until the almost completion of
these proceedings when an opportunity was afforded to him to give some
thought to his future behaviour, that he conceded that if he wished to
maintain the position of an engine person he would have to address his
obligations in a more reasonable fashion."
are just as relevant today as they were in 1994.
The Board is therefore of the view that it would not be in the public interest to
change or alter the penalty of dismissal which was imposed by RailCorp.
This appeal is disallowed.
John Parkin
Chairman
Chairman: J Parkin
Board Members: C Finegan
B Newham
Date of Hearing: 16 & 17 July 2007
Date of Decision: 31 July 2007
IN THE MATTER OF Appeal No.
TD/575 of 2007 by Craig Ian DEWICK
against a decision of RailCorp to
dismiss him from his employment as
Driver, Waterfall Depot.
D E C I S I O N
The appellant, Mr Craig Ian Dewick, commenced employment with RailCorp (and its
predecessors) on 2 February 1987 as a cadet. The appellant worked as a Train
Driver until 17 May 2007, being the date of his dismissal.
On 17 May 2007, the appellant was dismissed for breaches of State Rail's Code of
Workplace Standards and Train Working Procedure 100. Specifically it is alleged
that:
Allegation 1
On 13 May 2006, Mr Dewick operated a train service (15E run) in a manner so as
to cause a deliberate delay to the service. The alleged deliberate delay to the
service includes (but is not limited to) Mr Dewick failing to utilise the full
effectiveness of the equipment he was operating. Specifically, Mr Dewick did not
use 4 notch of the Master Controller throughout his journey from Waterfall to Bondi
Junction.
Allegation 2
2
On 30 May 2006, Mr Dewick failed to follow previous repeated directions from
management regarding the submission of Train Status Reports (TSR) for non-safety
critical faults and as a result, caused delays to a train service (15E run).
Allegation 3
On 21 March 2005, Mr Dewick made an unauthorised public comment about the
organisation by means of an email to the Daily Telegraph.
Allegation 4
Mr Dewick maintains the following websites in which he makes unauthorised public
comments about the organisation:
www.rctcc.org
www.railzone.org
Allegation 5
Mr Dewick has been engaged in outside employment without obtaining written
permission from management.
Allegation 6
Mr Dewick has failed to follow a management direction not to place unauthorised
notices to staff at various locations on RailCorp property, including meal rooms.
Appearances
Ms Leah Burland appeared on behalf of RailCorp and called the following
witnesses:
· Mr John Langbourne, Senior Operations Standards Manager, RailCorp
· Mr Mark Ridges, Senior Operations Standards Manager, RailCorp
· Mr Colin Handsaker, Operations Standards Manager, RailCorp
· Mr Ricky Anderson, Deputy Regional Crewing Manager, RailCorp
· Mr Patrick Duffield, Regional Crewing Manager, RailCorp
· Mr George Baias, Crewe Area Manager, RailCorp.
Mr Alan Barden of the Rail Tram and Bus Union appeared on behalf of Mr Dewick
and called only Mr Dewick is a witness.
3
Mr John Langbourne
Mr Langbourne explained to the Board that he was a qualified Data Logger Analyst
and that his statement (Exhibit 1, Tab 25) was true and accurate.
It was explained to the Board that the trains Data Logger recorded all functions
carried out on a train, including speed, time in and out of stations, what notch (gear)
the driver has engaged, as well as recording the state of the trains mechanical
functions.
Mr Langbourne then took the Board to the Data Logger printout of run 15E for
30 May 2006 (Exhibit 1, Tab 25, appendix 1). He explained that the Data Logger
printout showed that the train left Waterfall two minutes late and arrived at its
destination two minutes late. He explained that the Data Logger also showed that
the driver at no time during his run engaged notch 4.
He impressed upon the Board that the Data Logger details were absolutely reliable
in terms of the details of events and times.
Whilst being cross-examined by Mr Barden, Mr Langbourne agreed that the
catalogue did not reflect any restrictive indicators that the driver may have faced
during the trip. However he then went on to detail the fact that his investigation had
shown that there were no restrictions on the driver during the trip.
When asked to explain why it was that trip details document (Exhibit 1, Tab 9) did
not show run 15E as leaving Waterfall late, Mr Langbourne told the Board that this
information was generated by a computer, which would in his view explain the
inconsistency.
Mr Langbourne stated that it was his view that by not using notch 4 during the
entirety of run 15E, the appellant did not meet his responsibilities as stated in TWP
100 (Exhibit 1, Tab L, page 8 of 14) specifically, the driver must:
4
"endeavour to maintain the timetable and any special operating conditions
applicable to the train, without compromising the safety of or cause
inconvenience to passengers"
Mr Ridges
Mr Ridges told the Board that his statement behind Tab 24 of Exhibit 1 was true and
accurate. He then went on to explain in great detail what a Train Status Report
(TSR) was, how they should be dealt with by train drivers, the allocation of time to fill
them in and the difference between safety critical and non-safety critical reports.
He detailed a long-running process of interviews, informal chats, retraining and
formal directions that were given to the appellant as a result of his continued refusal
to deal with TSR's in the fashion outlined by management (Exhibit 1, Tabs 1, 2, 3 &
4).
When asked during cross-examination if there was a difference between how TSR's
were handled, if there were safety critical or non-safety critical, Mr Ridges told the
Board that there was a difference and it was outlined in TWP 118 on page 4 of 4
(Exhibit 1, Tab L).
He explained that the basic difference is that if there is a safety critical issue, the
train will not move unless the fault is repaired or the driver deems the train safe to do
so in spite of the fault and, that with a non safety critical fault, the train will simply go
out and the fault will be reported.
Mr Handsaker
Mr Handsaker told the Board that his statement (Exhibit 1, Tab 22), was true and
accurate.
He went to on to tell the Board that he had counselled the appellant on a number of
occasions (informally) about the number of times he had unduly delayed trains. Also
that he had counselled the appellant on a number of occasions about the ability to
submit a TSR for a non-safety critical issue anywhere on his run.
5
He told the Board that the appellant had continually disobeyed instructions
regarding submission of TSR's for non-safety critical issues.
Mr Handsaker told the Board that he had been to the website that he believed to be
maintained by the appellant that had the banner "RailCorp Train Crew Council Site",
which he said contained, amongst other things, drivers rosters and diagrams as
well as other documents he believed should not be made public.
When asked by Mr Barden if it was clear that TWP 118 required drivers to hand in
their TSRs at the out depot, Mr Handsaker told the Board that it was his view that it
was clear that if the TSR had no safety critical issue, then it could be handed to
RailCorp staff at any station en route.
When questioned about being able to identify the many posters that had appeared
around the stations as those belonging to the appellant, Mr Handsaker explained
that they were easily identified by the header "RailCorp Train Crew Council", which
was the same header that identified the appellant's web site.
Mr Baias
Mr Baias told the Board that his statement (Exhibit 1, Tab 23) was true and
accurate.
He went on to explain to the Board that the appellant put out a newsletter that was
contrary to RailCorp instructions on the same issue (Exhibit 1, Tab 17), specifically
in relation to train working equipment that is required by RailCorp employees who
may be participating in training courses.
He then explained that in spite of written instruction to immediately cease placing
such notices (Exhibit 1, Tab 19), they continued to appear (Exhibit 1, Tab 27).
Mr Baias told the Board that the appellant had been spoken to on a number of
occasions by various managers about how to deal with TSR's and that after one
particular coaching session held on 17 January 2006, the appellant had signed the
6
document which clearly sets out what the procedures are regarding non-safety
critical TSR's.
He told the Board that the appellants continued refusal to adhere to management's
instructions on a number of issues had an adverse impact on their ability to manage
other staff and their ability to provide a timely service to the public.
Whilst being cross-examined, Mr Baias agreed that the train crew are expected to
be able to distinguish between safety critical and non-safety critical issues.
He told the Board that the details of the "Daily Telegraph fax" that was sent by the
appellant and later appeared as an article (Exhibit 1, Tab 13), had been sent to the
Crew Operations Manager, seeking his advice on how to deal with the issue.
Mr Anderson
Mr Anderson told the Board that his statement (Exhibit 1, Tab 20) was true and
accurate.
He told the Board that he had had some dealings with the appellant regarding the
website he maintained in relation to the use of the words RailCorp in the banner and
the use of managers names, specifically Ms Vivienne King.
He told the Board he was also concerned about a number of out of date safe
working procedures being posted on the site.
Whilst being cross-examined, Mr Anderson agreed that after discussions with the
appellant, the out of date safe working procedures were removed from the site, as
was the name of Ms Vivienne King. He went on to say that although Ms King's
name had been removed, her initials and title remained in the document, something
he believed would make her just as identifiable to other employees as her name.
Mr Duffield
7
Mr Duffield told the Board that his statement (Exhibit 1, Tab 21) was true and
accurate. He then went on to tell the Board that he had met the appellant on a
number of occasions to reinforce what management expected of him with regard to
TSR's.
He told the Board that in spite of the fact that the trip details document (Exhibit 1,
Tab 9) did not show run 15E as leaving Waterfall late, that the Train Register Book
(Exhibit 1, Tab 8), which shows a run leaving two minutes late, can be taken as true
and correct as this is a legally binding document.
Whilst being cross-examined, Mr Duffield agreed that it is correct that the driver
should make an assessment of risk at the time of inspection to determine whether
an issue is safety critical or not. He also told the Board that he was not aware of the
appellant's secondary employment.
Mr Dewick
The appellant told the Board that he did not cause any deliberate delays on run 15E
and that he relied upon his letter to Mr Hill (Exhibit 1, Tab F) as an explanation to all
charges.
The appellant went on to explain that the secondary employment was the running of
a small part-time business between 1996 and 2005, being deregistered as a
business in the latter part of 2006. He said he believed it had been successful
however he only ever averaged two or three hours of work a week. He also
conceded that he may have received training regarding the steps he should have
taken if engaging in secondary employment.
He told the Board that at no time had he intended to contradict RailCorp
instructions, with the notices that he had placed around various stations. He
explained that although he had been told to desist, he felt that it would be beneficial
to others to continue putting up the notices.
8
The appellant agreed that he did write the e-mail that led to an article being
published in the Daily Telegraph and explained that he was aware of the guidelines
on public speaking on RailCorp issues, but not about writing to the media about
RailCorp issues.
The appellant agreed that he maintains the websites listed in the charges and
pointed out that when asked to make changes to the web sites, he had complied.
He told the Board that he had removed all material that he now knows should not
have been posted.
When cross-examined by Ms Burland the appellant told the Board that although he
had told Mr Lee that the train would be two minutes late when leaving Waterfall, so
that he could wash his hands, he does not believe that there was in fact a delay.
The appellant told the Board that he did not follow specific instructions from his
managers with regard to TSRs as it was his opinion that Waterfall station is the
best station to hand in those reports.
He went on to say that he had placed the notices around the stations, as he felt it
was his duty to help other crew.
He agreed that he had not sought permission to engage in secondary employment
nor had he received permission from the media unit to write the articles that
appeared in the newspapers.
In concluding, the appellant told the Board that he was now prepared to make an
effort to significantly improve his behaviour. He told the Board that he would try to
follow procedures at all times and now believes that he should have been more
careful in the past.
Final Submissions
Ms Burland
During her final submissions Ms Burland reminded the Board:
9
· That in Allegation 1 the delays included, but were not limited to, four notch not
being used during the trip.
· That Tab 8 of Exhibit 1, clearly indicates that train left Waterfall two minutes late
and that the person making the entry is compelled to put in the actual time.
· That Mr Langbourne was clear that the most reliable information regarding the
train and its arrival and departure times came from the Data Logger.
· That regardless of when it left Waterfall, the train was two minutes late at Bondi.
· That, unlike the appellant, other drivers manage to prepare the train, submit
their reports, wash their hands and get their trains out on time.
· That in Allegation 2, it is clear that the appellant had received Code of Conduct
training which includes instructions to carry out lawful directions.
· That the appellant had on numerous occasions received counselling and
instructions regarding proper procedures and that those instructions were clear
and unambiguous.
· That the appellant's refusal to follow lawful instructions undermined RailCorp's
ability to manage staff.
· That in Allegations 3 the appellant has admitted that he had sent two letters to
the Daily Telegraph and that he had not sought appropriate approval to do so.
· That the notices he had posted contained directions that specifically breached
RailCorp Policy.
· That in spite of being counselled about information available on his website,
there remained on that site for a number of years terms such as
"Vince Graham's suck up letter", information on drivers diagrams and letters
regarding disciplinary matters that he knew to be confidential.
· That in Allegations 5 the rules regarding external employment are clearly set out
in the Code of Conduct.
· That in Allegation 6, in spite of the fact that the appellant had been verbally
instructed to cease putting up notices and then given written instruction to cease
putting up notices, he had continued to do so.
· That the appellant had agreed he had run his own business.
· That the appellant has shown by his behaviour that, in spite of receiving formal
training and a number of the briefings, he has proven by his ongoing conduct
that he is unwilling or unable to follow directions.
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· That the Board should not alter the appellant's punishment of dismissal.
Mr Barden
During his final submissions Mr Barden reminded the Board:
· That in Allegation 1, it is still the appellant if that it is appropriate to hand in his
TSR report at Waterfall as this is the as is the out depot, as described behind
Tab 32 of Exhibit 1.
· That the trip details document (Exhibit 1, Tab 9) shows trip 15E departing on
time.
· That Mr Langbourne, whilst giving his evidence, said he would not engage four
notch at certain places on the run (15E).
· That in Allegation 2, when one looks at instruction TWI 118 and then looks at the
instructions given by management, there is scope for a great deal of confusion
when dealing with safety critical and non-safety critical TSR's.
· That in Allegation 3 the appellant has now clearly committed to make no further
comments to the press.
· That in Allegation 4 the appellant followed instructions given to him by RailCorp
and removed a number of things from his websites.
· That in relation to Allegation 5, the appellant believes that his secondary
employment was within the rules as he was only carrying out between two and
three hours of work per week.
· That in relation to Allegation 6, the appellant believed that he was doing a
service for other RailCorp employees and that the main problem was that he
did not understand the difference between an authorised and an unauthorised
notice.
· That the appellant seeks re-employment with RailCorp and that the Board
should set aside RailCorp's decision to dismiss him.
Findings
Having had an opportunity to review all the evidence before it the Board finds the
following:
· That in relation to Allegation 1, the Board is not satisfied that the charge is
proven, as the driver of any train clearly has the discretion to drive that train in a
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manner that he feels is safe in the operation of the train (Exhibit 1, Tab L,
Pages 6-14).
· That in relation to Allegation 2, the Board relies upon the Data Logger record
(Exhibit 1, Tab 25) and the Train Register Book (Exhibit 1, Tab 8) to find that
service 15E from Waterfall, left Waterfall two minutes late due to the appellant
handing in his Train Status Report, which, buy his own admission, contained no
safety critical issues (Exhibit 1, Tab 6) and then washing his hands. All of which
were contrary to the repeated instructions given to him by RailCorp
management.
· That in relation to Allegation 3 the appellant, by his own admission, has made
unauthorised public comments about RailCorp by a means of an e-mail, dated
21 March 2005, to the Daily Telegraph (Exhibit 1, Tab 14).
· That in relation to Allegation 4, the appellant, by his own admission, maintains
the websites set out in the Allegation. Both websites contain material making
unauthorised comments about RailCorp, which had to be removed at a later
date by the appellant.
· That in relation to Allegation 5, the appellant, by his own admission, was selfemployed
in a company called Sun Ripened Kernels owned and run by him
(Exhibit 1, Tab 30) from 1995 until it was deregistered the latter part of 2006.
· Given that it had been RailCorp Policy since 1999 to receive permission to
engage in such employment (Exhibit 1, Tab JK), it was obvious to the Board,
given the contents of the appellant's newsletter #6 (Exhibit 1, Tab 27), that he
was fully aware of the requirements of the Code of Workplace Standards.
· That in relation to Allegation 6, the appellant, by his own admission, did not stop
posting his newsletters following a number of management directions to do so.
Decision
It is the Board's view that RailCorp has invested a great deal of time and resources
in Mr Dewick to re-educate, retrain, coach and advise him and that he has in return
shown a grim determination to continue to do only what he believes to be right in
terms of workplace practices.
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It would appear that Chairman Conroy's remarks in 1994 (Exhibit 1, Tab PQ)
regarding the appellant:
"His presentation in the witness box and the explanations he sought to give
to this Board in relation to his behaviour showed a person who was not
prepared to accept the responsibilities that were cast upon him as an
employee to comply with the rules which are properly maintained by the
State Rail Authority and accepted by employees as appropriate to the
position of an engine person. He was not contrite in any way when giving
his explanation as to the events that had transpired which caused these
allegations to arise, and in fact it was not until the almost completion of
these proceedings when an opportunity was afforded to him to give some
thought to his future behaviour, that he conceded that if he wished to
maintain the position of an engine person he would have to address his
obligations in a more reasonable fashion."
are just as relevant today as they were in 1994.
The Board is therefore of the view that it would not be in the public interest to
change or alter the penalty of dismissal which was imposed by RailCorp.
This appeal is disallowed.
John Parkin
Chairman