Public Employment Office Department of Attorney General and Justice v Silling

Introduction 1This is a decision in an appeal against the decision of Rail Corporation of the New South Wales ("RailCorp") to dismiss Mr David John Elleray from the position of Guard. 2Mr Elleray commenced employment with RailCorp on 9 September 1996 as a Station Assistant Class 1. On 19 August 1997, he was promoted to the role of Guard Relief. On 3 March 1999, he commenced in the role of Guard and continued in that position until his dismissal. 3The Appellant was dismissed from employment on 9 July 2012 for alleged breaches of:

• The RailCorp Code of Conduct;
• The terms and conditions expressed in the RailCorp "Your Employee Travel Passes" Booklet (2005); and
• The RailCorp Enterprise Agreement 2010. 4The alleged breaches relate to an incident which ensued on 14 November 2010 while he was approached by Transit Officers patrolling Guardian Service 703T and asked to show his ticket. The Appellant was charged with two counts of Common Assault as a result of that incident. The Appellant entered a plea of not guilty to the allegations. 5The incident led to an investigation by the Respondent. During that investigation, the Respondent became aware that the Applicant had what appeared to be undeclared criminal convictions, including for assault causing the Respondent to initiate a further investigation. Both investigations were conducted simultaneously. 6A number of allegations were sustained against the Appellant as a result of both investigations. The Respondent held that the view that the allegations were thoroughly investigated and appropriately substantiated. 7On 15 November 2010, Ms Danielle Mesa, Manager Business Partners, wrote to the Appellant advising that a disciplinary investigation was being conducted and that he was temporarily suspended with pay with immediate effect and until further notice in accordance with Section 38 of the Transport Administration Regulations 2005. The suspension was a result of information provided by the NSW Police Force on the previous day. He was advised that an appeal to the Transport Appeals Board (TAB) against the suspension was available to him providing it was lodged within21 days of receipt of that notice.. 8The Appellant was advised, by letter from Michael Ashwood, Investigator, dated 28 April 2011, that due to the complexity of the investigation, the Respondent was still in the process of completing its enquiries into the allegations. He undertook to contact the Appellant again within six weeks to confirm progress. 9On 13 May 2011, Michael Ashwood wrote to the Appellant outlining the allegations that were being investigated. The 4-page letter set out, in detail, the sections of the Code of Conduct which may have been breached as well as the conditions under which the general travel pass had been issued to him. The Appellant was invited to respond to the allegations in writing within 14 days. He was cautioned that if he did not reply the investigations would continue in the absence of any reply. He was reminded of the disciplinary options available to the Respondent to apply and of the availability of an Employee Assistance Program (EAP). 10The Appellant did not provide a response to the allegations. 11The Respondent noted the lack of response, by letter to the Appellant dated 6 June 2011, and invited him to attend a disciplinary interview on 14 June 2011 in the interest of procedural fairness. He was advised that he was able to have a support person attend with him at the interview which was to be recorded electronically. The Appellant was advised that the investigation would continue in the absence of any verbal response from him. He was advised that a written report on the investigation may be forwarded to the DRP for recommendation as to what disciplinary action, if any, should be taken. The Appellant failed to attend that interview. 12Mr Karen Dhillon, A/Manager Business Partners, wrote to the Appellant on 16 August 2011 informing him that he was, from the date of that letter, suspended with pay on base pay until further notice. He was reminded of his appeal rights to TAB and of the EAP. 13Mr Stephen Hanna, Investigator, wrote to the Appellant on 14 September 2011, advising that, due to the complexity of the investigation, including his pending criminal hearing in November 2011, the unit was still in the process of completing its enquiries to relation to this matter. He undertook to write to the Appellant within six weeks to confirm progress. 14The Respondent wrote to the Appellant once again on 30 September 2011 noting that no response had been received to the allegations. The Appellant was once again invited to attend a disciplinary interview on 11 October 2011 in the interest of procedural fairness. 15Once again, the Appellant failed to attend the disciplinary interview scheduled for 11 October 2011. 16Ms Dhillon wrote to the Appellant on 12 December 2011 advising that he had until 16 December 2011 to provide a written response otherwise he will be suspended without pay. 17In the absence of a written response from the Appellant, the Respondent approved suspension without pay. 18Ms Suljic wrote to the Appellant on 3 February 2012 confirming the delay in the finalisation of the investigation as being due to the complexity of the matter and his pending criminal hearing. 19Ms Suljic found, on 19 March 2012, that, on the balance of probabilities, there was sufficient evidence to substantiate the allegation that the Appellant attempted to punch Transit Officers McKenna and Jones when they asked the Appellant to produce identification. She noted that: