Bibby v Rail Corporation of New South Wales

DECISION 1Rail Corporation of New South Wales ("RailCorp") had employed Daryle Robert Bibby as a Senior Shunter. He was dismissed from his employment on 4 August 2012. Mr Bibby appealed against his dismissal to the Transport Appeal Board ("the TAB"). In a decision given on 8 August 2013 the TAB, constituted by Newall C, disallowed the appeal. 2On 28 October 2013, Mr Bibby sought leave to appeal, and if leave was granted, to appeal from the TAB's decision. At the same time, Mr Bibby made application to extend time to appeal. This decision deals with the application to extend time.

Background 3Mr Bibby had been employed with RailCorp and its predecessors since 1990. His dismissal from employment was a consequence of an incident that occurred on 13 February 2012. An employee of RailCorp was struck by a train whilst it was being shunted. Mr Bibby was not in charge of the shunt, but rather that was the responsibility of another employee, Mr Frew. Mr Frew asked Mr Bibby and two drivers, Mr Kelly and Mr Atchison, to say he, Mr Bibby, was in charge, and left the accident scene. This was the story initially told to investigators. Later, Mr Atchison and Mr Kelly advised RailCorp that Mr Bibby was not in fact in charge of the shunt at the time the employee was injured, but rather that Mr Frew had been in charge. Both said that Mr Frew had asked them to say that Mr Bibby had been the shunter in charge. Mr Bibby later agreed he was not the shunter at the time of the accident, but that Mr Frew was. Mr Bibby, nevertheless, continued to insist he was in charge of the shunt as Mr Frew went to the toilet. 4The incident is described in the decision of the TAB: [7] A good deal of the factual evidence was not a matter of contest. I address some particular matters which were in contest below, but the following factual summary can be distilled from unchallenged evidence. [8] On 13 February 2012 Mr Bibby was working a shift as a shunter at the Hornsby Maintenance Centre operated by the respondent. [9] At about 11:30 that evening, a train was being shunted. In the cab of the train were a driver, Mr Peter Kelly, another driver, Mr Michael Atchison, and a shunter, Mr Jason Frew. Mr Frew was the shunter in charge of the shunt while it was taking place. [10] The train struck and injured a cleaner employed by the respondent, Mr Steven McIntosh. [11] The three employees in the train realised that something had happened. The train was stopped and Mr Frew, at least, alighted from the train and saw the injured employee lying on the ground. He spoke to Mr Bibby via the two way radio. He also spoke to the two drivers, Mr Kelly and Mr Atchison. In the conversations with the drivers Mr Frew expressly asked them to say that Mr Bibby had been the shunter on the train when the accident occurred. [12] Mr Frew then removed himself from the scene of the accident, although he remained at the workplace. [13] An ambulance was called for the injured employee - Mr Bibby says by him - and a more senior Rail Corporation employee, Mr Terry Clancy, Operations Planner, Hornsby Maintenance Centre, attended the incident, as did police. [14] Mr Kelly, Mr Atchison, and Mr Bibby told Mr Clancy that Mr Bibby was the shunter in charge of the shunt at the time that the cleaner was struck and injured. [15] Mr Clancy's unchallenged evidence was that Mr Bibby, Mr Atchison and Mr Kelly, speaking as a group, told him that they were all three of them in the cab at the time of the accident. [16] Mr Kelly, Mr Atchison, and Mr Bibby, in separate interviews, told police that Mr Bibby was the shunter in charge of the shunt at the time that the cleaner was struck and injured. [17] Mr Larry Arthur, Network Operations Superintendent, Hornsby Signal Control Centre, attended the site shortly after the incident. Mr Kelly and Mr Atchison told him that Mr Bibby had been in the cab of the train at the time of the incident. Mr Arthur said that Mr Bibby also told him that he was in the cab of the train at the time; Mr Bibby denied having spoken to Mr Arthur at all. I return to that matter below. [18] Shortly thereafter, Mr Kelly, Mr Atchison and Mr Bibby were each drug and alcohol tested in accordance with standing Rail Corporation procedures. They all returned negative results. [19] Mr Frew was not tested. Rail Corporation management was not aware that Mr Frew had been involved in the incident as a result of Messrs Kelly, Atchison and Bibby stating that Mr Bibby had been the shunter in charge of the shunt. None of the three employees, Mr Kelly, Mr Atchison, and Mr Bibby, told the Rail Corporation or the police that Mr Frew had been the shunter of the train at the time that Mr McIntosh was injured. [20] The respondent then began a safety investigation into the incident. [21] On 19 February 2012 the two drivers, Messrs Kelly and Atchison, advised their union and subsequently Rail Corporation management that Mr Bibby was not in fact in charge of the shunt at the time the driver was injured, but rather that Mr Frew had been in charge of the shunt and had been in the train at the time of the incident. Both said that Mr Frew had asked them to say that Mr Bibby had been the shunter in charge. [22] In explaining why he had initially told an untruth, Mr Atchison referred to a 'family culture' at the Respondent's workplace. Mr Kelly said that he had felt 'peer pressure' to maintain the untruth. [23] The next day, 20 February 2012, Mr David Filipetto, General Manager, Rollingstock, had a telephone conversation with Mr Bibby in which Mr Bibby twice asserted that he was the shunter of the train 'at the time of the incident'. When then told by Mr Filipetto that the drivers had said that Mr Frew, not he, had been in charge of the shunt, Mr Bibby said that he was not the shunter at the time of the incident, and that Mr Frew was. This conversation was the first occasion on which Mr Bibby made that admission to the respondent. [24] Having had that conversation, later on the day of 20 February Mr Bibby told Craig Mills, a workplace safety investigator with the respondent, that he had not been the shunter at the time the employee had been hit but 'Jason asked me to do the shunt and in my mind I believed that I was in charge even though I wasn't present when the train hit the employee.' [25] The respondent's investigation involved the interview with Mr Bibby referred to above, interviews with the two drivers, with a number of other persons present, and with Mr Frew. [26] On 1 March 2012 a letter was provided to Mr Bibby notifying him of an investigation into the possibility that he breached the respondent's Code of Conduct in relation to the incident. [27] On 14 March 2012, a letter setting out the two allegations against him - which were ultimately the allegations forming the basis for his dismissal - was provided to Mr Bibby. [28] On 3 April 2012 Mr Bibby's union provided a written response on his behalf. The union advised that Mr Bibby wished to exercise his 'right to silence' while it remained unclear if any external investigation by police 'or other regulators' would take place and asked that the investigation be stayed. [29] On 4 April 2012 Mr Bibby was invited in writing to take part in a disciplinary interview. On 10 April he declined, on the advice of his union, to do so. [30] On 16 April 2012 Mr Bibby was advised in writing by the respondent that the investigation would continue. In that letter the respondent set out the range of possible disciplinary outcomes and advised that Mr Bibby would have a further opportunity to make representations prior to any disciplinary action being effected. [31] On 2 May 2012 Mr Bibby provided a Statutory Declaration to the respondent about the events surrounding the incident. In that he said that Mr Frew had asked him to 'watch the train because he had to go to the amenities' and added 'when management asked me if I did the shunt, I said yes, because I was shunting at the time'. [32] On 14 May 2012 Mr Bradley Kerr, Investigator for the respondent, competed [sic] his investigation and referred the matter to the Discipline Review Panel of the respondent for determination. [33] On 4 June the respondent in the person of Mr Filipetto wrote to Mr Bibby advising him that a preliminary view of the appropriate disciplinary outcome was dismissal, but inviting him to advance any submission he wished in relation to the matter. [34] On 2 July Mr Bibby responded in brief form saying that he 'didn't intentionally mislead anyone and still to this day believe that I was in charge of the shunt at the time while Jason went to the toilet.' [35] On 23 July Mr Bibby was advised in writing that he was to be dismissed with effect from 4 August 2012. [36] No police proceedings were initiated. 5Mr Bibby was dismissed from his employment on the basis of the following allegations, which had been found proven: that he falsely presented himself as the shunter in charge of the shunting movement at the time of the accident; that he failed to report that Jason Frew was the shunter assigned to and in charge of the shunt; and that he actively assisted Mr Frew to avoid post-incident drug and alcohol testing. 6The TAB found that the matters that were said to be the basis for the termination did, in fact, occur and that the matters formed a sufficient basis for the punishment imposed, namely, dismissal from employment.