Rail Corporation of New South Wales v Elleray

Nature of the appeal 9Section 23 of the Transport Appeal Boards Act 1980 ("TAB Act") deals with decisions on appeal and provides as follows: 23 Decisions on appeals (1) A Board may, in relation to an appeal, decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. (2) Except as provided by section 23A, the decision of a Board in respect of an appeal is final and is to be given effect to by the Authority against whose decision the appeal was made. 10Section 23A of the TAB Act is in the following terms: 23A Appeals on questions of law (1) A party to a promotion or disciplinary appeal may, subject to subsection (3), appeal to the Full Bench of the Commission in Court Session against any decision of a Board in the proceedings on a question of law. (2) On an appeal under this section, the Full Bench of the Commission in Court Session may: (a) remit the matter to the Board for determination in accordance with the decision of the Full Bench, or (b) make such other order in relation to the appeal as seems fit. (3) Part 7 of Chapter 4 of the Industrial Relations Act 1996 applies to an appeal against a decision of a Board under this section in the same way as it applies to an appeal against a decision of the Commission under section 197B of that Act. 11An appeal under s 23A is limited to an appeal against any decision of the TAB in the proceedings "on a question of law". In Rail Corporation v Brown [2012] NSWIRComm 14 ("Brown"), the Full Court analysed the provisions of s 23A, and concluded that the section provided a limited right of appeal. The jurisdiction of the Court under s 23A, it was held, is invoked only in circumstances where the TAB has reached a conclusion with respect to a matter that required for its determination the identification of a relevant matter of law, and error was alleged with respect to that matter of law. (It should be noted that the decision of the Court in Brown was recently overturned on appeal by the Court of Appeal in Rail Corporation of New South Wales v Brown [2012] NSWCA 296). However, no challenge was made to this aspect of this Court's decision.) 12In respect of this appeal, the relevant findings of the Court in Brown were as follows: [20] An appeal under s 23A is not an exercise involving a search for any errors in point of law that arise in the proceedings but requires attention to a more precise issue, requiring the identification of a decision of the TAB in the proceedings "on a question of law." In this respect the judgment of Basten JA in Lambert at [70] is of particular relevance where his Honour quotes from the judgment of the Court in Grygiel v Baine [2005] NSWCA 218 at [29] citing the judgment of Bryson JA in Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58] that the terms of the Act there under consideration required "that an appellant must identify with precision a decision of the Tribunal with respect to a matter of law, in order to invoke the jurisdiction of the Court." We would respectfully agree with that statement, as relevant to the operation of s 23A. [21] The cases considered above dealing with provisions similar to s 23A provide the following guidance in identifying the scope of the appeal available under the Act: (a) an appeal from a decision on a question of law is a more limited appeal than that available on a question of law or involving a question of law; (b) it is not sufficient, therefore, to merely establish that an error of law has occurred in the course of the appeal; (c) while it must be shown that the Tribunal has made a decision on a question of law that is challenged on appeal, it is not necessary for the Tribunal to have, itself, expressly identified that question. It will be sufficient if the appeal identifies any decision of the Tribunal that is a decision on a question of law. Thus, where the Tribunal reaches a conclusion with respect to some matter that requires for its determination the identification of a relevant matter of law and error is alleged with respect to that matter of law, the jurisdiction of this Court under s 23A is invoked; (d) the appellant, nevertheless, is required to identify with some precision the decision of the Tribunal on a matter of law in order to invoke the jurisdiction of the Court under s 23A; (e) where the questions raised on appeal involve an assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implied decision on a question of law. 13By virtue of s 23A(3), leave to appeal is required: see s 188 of the Industrial Relations Act 1996, which appears in Pt 7 of Ch 4 of that Act. In our view, leave to appeal should be granted and the appeal allowed. For the reasons that are explained below, the matter shall be remitted to the TAB for determination.

Issues on appeal 14RailCorp relied on five grounds of appeal, each of which contended that the TAB had made an erroneous decision on a question of law. 15The principal ground of appeal was that the Commissioner made an implicit decision that she was not required to make findings of fact on contested issues and an implicit decision that she was not required to determine whether on the basis of those findings, dismissal was appropriate in all the circumstances. In other words, RailCorp contended that there had to be findings of fact before there was a finding of serious misconduct and an analysis of whether the penalty imposed by RailCorp of the termination was appropriate or not. 16Ms N Sharp of counsel who appeared for the appellant, acknowledged that if she succeeded in making out this central argument then it was unnecessary to consider alternate grounds of appeal. 17Mr P Doyle of counsel appeared for the respondent.

The reasons of the TAB 18The Board, constituted by Tabbaa C, after narrating the history of the matter and setting out some, but not all, of the allegations, detailed the provisions of the RailCorp Code of Conduct alleged to have been contravened. These related respectively to acceptable behaviour (s 2), promoting a safe workplace (s 3), and the prevention of discrimination, harassment and bullying (s 6 (at [28] - [29])). 19Tabbaa C then referred to RailCorp's Code of Workplace Standards, which relevantly requires an employee to disclose criminal convictions. Tabbaa C did not identify the parts of the Code that made this provision (at [30]). 20The Commissioner subsequently made reference to the condition in RailCorp's Travel Passes Booklet that employees using the travel passes were "Ambassadors" of RailCorp and while using the travel passes were required to adhere to the RailCorp Code of Conduct and not bring RailCorp into disrepute (at [31]). 21In addition, it was noted that a condition of the travel passes itself provided that the passes had to be carried at all times while travelling and produced upon request by an authorised officer (at [32]). 22Tabbaa C noted that the respondent had signed a declaration that he would comply with the Code of Conduct and the booklet (at [33] - [34]). 23Under the heading "the Respondent's Evidence", the Commissioner noted that Transit Officer McKenna had made contemporaneous notes of the 14 November 2010 incident and quoted from part of a memorandum he had written the same day describing the incident (at [36]). 24Tabbaa C then quoted extracts from the statement Mr McKenna had given to NSW Police the same day (at [37] - [38]) and noted that Mr McKenna had issued three infringement notices to the respondent for his failure to produce his ticket; offensive language; and a failure to provide his correct name when directed to do so (at [39]). This was the only evidence Tabbaa C considered under this heading. The Commissioner made no reference to the statements or oral evidence of the five other transit officers involved in the 14 November 2010 incident. Further, no reference was made at all to any evidence surrounding the undisclosed criminal convictions. 25As we noted earlier, during the course of RailCorp's investigation it was discovered that the respondent had previous criminal convictions that RailCorp alleged had not been disclosed to it. On 19 March 2012, notwithstanding the respondent's assertions that he had informed managers of the convictions, RailCorp found that he had not. 26Tabbaa C referred to the respondent being convicted of the 2001 offences, but made no reference to the penalty imposed upon the respondent in respect of these convictions. However, she noted that they occurred at a time when he was experiencing family difficulties including his brother's attempted suicide which left his brother with serious brain injuries (at [40] - [41]). 27Tabbaa C further noted that the respondent had recalled that he had advised Mr Pat Duffield, his then Depot Manager of the charges in February 2001 in his office and that he had had another conversation with Mr Duffield on the platform of Campbelltown Railway Station in late October or early November 2001 when he advised that the matters had been finalised and that he had been fined and placed on a good behaviour bond. 28Tabbaa C observed that neither of these conversations had been witnessed by anyone. It was also noted that the respondent pleaded guilty to "Drive vehicle recklessly/furiously/or speed/manner dangerous" and was placed on a good behaviour bond of two years and disqualified from driving for a similar period (at [43] - [45]). 29Tabbaa C noted that the respondent had again recalled that he had advised his then Depot Manager, Mr Michael Beckett, of the charge in the meal room at Campbelltown Station in early November 2003 and again on or about 18 December 2003 on the platform of Campbelltown Railway Station. Neither of these conversations had been witnessed by any other person (at [46] - [48]). At no point did Tabbaa C refer to RailCorp's evidence that Messrs Beckett and Duffield said they had no recollection of being informed of the convictions by the respondent, nor did Tabbaa C refer to their evidence that had they been so informed they would have notified Human Resources accodingly. Nor did Tabbaa C refer to the cross-examination of the respondent on this point. 30Tabbaa C recorded the respondent had confirmed that following the 14 November 2010 incident, he had been charged with two counts each of "Assault Law Officer (not police)" and "Common Assault" and one count of "Resist Officer in execution of duty" and that he had advised Ms Suzanne Strike, his then Depot Manager, of the charges by telephone on or about 15 November 2010. 31The Commissioner noted that the "Assault Law officer" and the "Resist officer in execution of duty" were withdrawn and that following a contested hearing, the "Common Assault" charge was dismissed (at [50] - [52]). 32Tabbaa C then referred to the evidence of Mr Mark Shrimpton, the driver of the train in which the 14 November 2010 incident had occurred (at [53] - [55]), noting that Mr Shrimpton had heard shouting and went to investigate and saw the respondent lying on the floor. No other evidence was referred under the heading "The Appellant's evidence". 33Under the heading "Findings", the Board stated that a condition of travelling with a travel pass was that the pass be carried and produced when requested (at [82]). The Board made reference to the booklet which provided that while travelling on a travel pass, the employee was an Ambassador of RailCorp and was to act in accordance with the Code of Conduct (at [83] - [84]). 34Tabbaa C proceeded to make a series of negative comments about the respondent's case. First, Tabbaa C stated that she did not see why he did not show his pass to the transit officers and tell them he was a RailCorp employee (at [85]). Secondly, the Commissioner said that the evidence of the train driver, Mr Shrimpton, was to the effect that he saw no struggle and that he had been attracted into the train carriage in the first place because of the noise he had heard (at [86]). Thirdly, Tabbaa C noted that in the respondent's statement to the TAB, he did not deny the conduct on the train, but merely relied on the fact that the Local Court dismissed the charges against him. 35Tabbaa C observed, "The Appellant was not helpful to the Board - not by what information he provided to the Commission but by what information he withheld" (at [87]). 36The following finding was made at [88]: "On balance, I find, on the evidence set out above, that the Appellant had breached his obligations in relation to the Travel Pass, his conduct had the potential to bring RailCorp into disrepute had the incident occurred at a time when more members of the public were around and if they became aware that he was a RailCorp employee."

Consideration 37The principal issue for determination in this appeal, as was stated by the Full Bench in Brown, is whether the question raised on appeal involves an assessment of the proper scope of the TAB's power and jurisdiction. If so, there is an implied decision on a question of law. This is required because s 23A of the TAB Act only allows appeals from a decision made by the TAB on a question of law. The outcome of this appeal, therefore, turns on the scope of the appeal available to a party dissatisfied with a decision of the TAB. 38It follows, that on an appeal from a decision of the TAB, it is necessary for the appellant to identify that the TAB has either expressly or impliedly made a decision on a question of law. In Hutchinson v Roads and Traffic Authority [2000] NSWCA 332, Giles JA in considering s 54 of the Government and Related Employees Appeal Tribunal Act 1980 ("GREAT Act") which was relevantly in the same terms as s 23A of the TAB Act, stated at [33]: "... The word "decision" is important. It includes an opinion of the Tribunal on a question of law upon which its determination is based ..., but it is not enough that an error of law has occurred in the course of a hearing before the Tribunal ...." 39However, it is not necessary that the question of law be explicitly stated and decided by the TAB. As held in Brown and as Hodgson JA said in Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [28] "It is sufficient if a decision of the Tribunal is such that a resolution of a question of law is manifested by it". 40Basten JA at [64] in Lambert observed: "The reference by Sheller JA to an action or decision "as generally understood" was a reference to the view that an appeal from a decision is a challenge to a final or operative decision or order, being an act adversely affecting rights claimed by the appellant. The idea that a decision may be based on an answer to a particular question of law does not necessarily mean that the tribunal itself must have expressly so identified the question." 41In Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218, the Court of Appeal,considered the construction and application of s 67 of the Consumer Trader and Tenancy Tribunal Act 2001. Section 67 relevantly provided: "(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the District Court against the decision." 42Allsop P, in considering the nature of a "decision" in s 67 stated at [24] - [27]: [24] The decision of the High Court in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 makes clear that the relevant decision for the purposes of s 67 may be implied. The joint judgment of Hayne J, Heydon J, Crennan J and Kiefel J at 418 [91] stated that: "Whether there was no evidence to support a factual finding is a question of law, not a question of fact. The Tribunal's factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon its first accepting that there was evidence to support the finding. As Dixon CJ said in Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2]: '... in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact.' A tribunal that decides a question of fact when there is 'no evidence' in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. And in this case, for the reasons given by the primary judge, there was no evidence before the Tribunal, when it decided the separate question identified by the parties, upon which the Tribunal could find that the disputed notices had been served." [First emphasis added, footnotes omitted.] [25] Their Honours had earlier in their reasons at 412 [69] posited the central question in the appeal as follows: "Section 67(1) of the Tribunal Act permitted the appellants to appeal to the Supreme Court against the Tribunal's decision that there was material properly before the Tribunal which supported the conclusion that the disputed claims for extension of time had been served on the appellants. The conclusion that there was material of that kind, necessarily implicit in making the finding that the disputed claims had been served, was a decision with respect to a question of law." [Emphasis added.] [26] Further, at 414 [78] of their reasons, their Honours said: "... that there was no evidence that the builder had served the two critical claims for extension of time. (It will be recalled that the conclusion that those two claims for extension had been validly served was a necessary step in the Tribunal reaching its conclusion that the appellants had repudiated the contract.)" [Emphasis added.] [27] Likewise, French CJ stated at 398 [23] that the right of appeal under s 67 is not limited to explicit decisions formulated in the proceedings, saying that s 67: "... extends to decisions which were necessary steps in the Tribunal's reasoning, whether or not made explicit by the Tribunal." [Emphasis added.] 43At [29] Allsop P stated: The scope of what is an implied decision was stated by their Honours in the High Court in Kostas broadly and simply. To understand when a decision can be seen to be implied it is unnecessary to go beyond acceptance of the expressions of the matter by French CJ: "decisions which were necessary steps in the Tribunal's reasoning" (398 [23]); and by the plurality: "necessarily implicit in making the finding" (412 [69]); "necessary step in the Tribunal reaching its conclusion" (414 [78]); and "necessarily depended upon" (418 [91]). Once one recognises that the statutory language not only encompasses any express decision of the Tribunal, but also any implicit decision as broadly expressed as in the reasons of the High Court in Kostas, it follows that the decision may concern a question or matter not specifically addressed by the parties. French CJ in Kostas addressed this at 410 [59] and 397-398 [23] of his reasons. The plurality did not address this expressly; but support for the view that I have expressed can be taken from the absence in their Honours' reasons of any necessity that the decision (including an implied decision in the manner formulated by them) be addressed by the parties and the consequence of their expression of what is an implied decision. 44His Honour summarised his conclusions at [57]: "Whether or not a decision on a question with respect to a matter of law exists will generally be discerned from the nature of the asserted error giving rise to the plaintiff's dissatisfaction. From the error, the question and decision will be identifiable. Each of the question and decision may be express (or implied in the way described by the High Court in Kostas). Here, the error of the Tribunal, giving rise to the dissatisfaction of the builder, was that the Tribunal failed to give effect to a centrally important common position of the parties. The (implied) decision was that the Tribunal had resolved all relevant questions or issues placed before it by the parties necessary to resolve the controversy and to make orders. That way of looking at the matter reflected the substance of the builder's complaints. It was, in substance, a decision on a question with respect to a matter of law. Subsection 67(1) was engaged, as was sub-s 67(8)." 45In the course of submissions, and following exchanges with the Full Bench, counsel for the appellant sought to frame the question of law in respect of which the Board erred in the following terms: The Commissioner made an erroneous decision on a question of law by failing to make necessary findings of fact on the conduct alleged by the employer before exercising the jurisdiction to reinstate. 46In our opinion, it is abundantly clear that the Board failed to decide facts centrally relevant to the exercise of its jurisdiction. That is, the Board exercised its jurisdiction to reinstate the respondent in his former position in the absence of findings of fact regarding the respondent's alleged conduct that was contended by the employer to warrant dismissal from employment. 47Whilst the Board found the respondent had breached his obligations in relation to the Travel Pass, it did not state in what respects there had been a breach and did not state the gravity of the breaches. Further, whilst the Board found the respondent's conduct had the "potential" to bring RailCorp into disrepute, it did not indicate what conduct it was referring to. Was it the whole of the conduct alleged by RailCorp to have occurred on the train on14 November 2010 or some elements of that conduct? Not having made a finding about whether RailCorp's allegations regarding the conduct had been made out or not it is impossible to know what conduct the Board had in mind in making its "findings" at [88]. There was simply no analysis of any of the evidence regarding the respondent's alleged conduct . 48It may be inferred from the Board's decision that it considered the respondent's conduct, or elements of it, to be unacceptable. That inference may be made from what was stated at [88] ("...the Appellant had breached his obligations in relation to the Travel Pass, his conduct had the potential to bring RailCorp into disrepute..."), and [89] where the Board stated: [89] Transit Officers are employed to ensure that the Rail System is safe for the public to use and to ensure that the public pay for the service and not obtain free rides on the tax payer. They have a right to expect that they will be respected for the work they do and not be subjected to abuse, particularly by their fellow work mates. I do not doubt from the evidence that the Appellant had to be subdued in the course of their carrying out their functions. 49However, what was stated at [90], namely, that if the CCTV footage of the incident on the train had been produced it would have put the incident beyond doubt, suggests that the Board had doubts about RailCorp's allegations, or some of them, regarding the incident. Because of a complete absence of any analysis of the evidence it is not known what elements of the alleged conduct the Board apparently found unacceptable and what elements it had doubts about. This problem would have been overcome if the Board had made findings of fact, but did not, in relation to each of the allegations particularised in the letter of termination, namely: (a)whether the respondent refused to produce a train ticket or travel pass to transit officers McKenna and Jones when they asked the respondent to produce a valid rail ticket; and/or (b)whether the respondent had attempted to punch transit officers McKenna and Jones; and/or (c)whether the respondent had verbally intimidated or threatened transit officers McKenna, Jones, Ogden, Perrett, Poivesan and Wain saying words to the effect: (i) "You don't know who your [sic] fucking with, your [sic] jobs are gone do you know Mick Drury?" (ii) "You're fucked; he will know all about this by Monday morning. You assaulted me. I'm going to make a lot of money out of this." and (iii) "Fuck you cunts are all fucking gone, you don't know who you're messing with, fuck you all." 50Apart from referring to the fact of the undisclosed criminal convictions, there was no analysis of the evidence surrounding the convictions. The Board made no finding regarding the alleged failure to disclose criminal convictions and whether that failure constituted a breach of the Code of Conduct, despite this being one of the two reasons why the employer determined to dismiss the respondent. 51We are mindful that the TAB Act does not specify the criteria about which the Board must be satisfied in order to uphold an appeal. However, in Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [117] - [121], Hall J held that the TAB was required to consider whether RailCorp's decision was just and reasonable. This required the Board to consider the gravity of the misconduct (at [118]). 52Hall J also held that the TAB did not generally exercise a protective jurisdiction, but rather, a punitive jurisdiction (at [102], [106] - [107]). 53In reaching this conclusion, his Honour placed weight on the fact that the precursor to the 2005 Regulation just like the 2005 Regulation, empowered the employer to impose "punishment" (at [99], [106]). 54We respectfully agree with his Honour's observations. Further, we consider the correct approach to be followed by the Board in appeals such as that dealt with by Tabbaa C is that stated in Bibby v Rail Corporation New South Wales [2013] NSWTAB 4 at [113]: [113] The first obligation is to determine whether the matters which were said to be the basis for the termination occurred as a matter of fact. The second is to determine whether, if the matters are found to have occurred, they formed a sufficient basis for the punishment imposed: Dubihur v Transport Appeal Board [2005] NSWSC 811 at [118]- [125]. 55In the present case, the Board neither made adequate findings of fact regarding the matters that were alleged to justify the dismissal of the respondent nor did it - or could it have in the absence of such findings - determine whether the dismissal was just and reasonable. 56We would characterise the question of law in this case as the (implied) decision of the Board that it was unnecessary to determine facts that were centrally relevant to the exercise of its jurisdiction in that the Board was not required to determine whether the conduct alleged was proved or not and not required to determine whether RailCorp's decision to dismiss the respondent was just and reasonable. The error was the Board's failure to resolve all relevant questions of fact or issues placed before it by the parties necessary to resolve the controversy. 57The appeal should, therefore, be upheld and in the circumstances the matter remitted to the TAB for determination according to law.

Costs 58In the event that the appeal was upheld, RailCorp sought an order that the respondent pay the costs of the appeal. Assuming Ms Sharp is correct that power exists in the Court to award costs in an appeal under s 23A of the TAB Act, we have decided in the exercise of our discretion not to award costs in this case.

Orders (1)Leave to appeal is granted. (2)The appeal is upheld. (3)The matter is remitted to the Transport Appeal Board for determination according to law. (4)No order as to costs.

Amendments 30 September 2013 - "Baker & Edmunds" amended to read "Marque Lawyers""Rankin Ellison" amended to read "John Stonham & Co Lawyers" Amended paragraphs: Coversheet/Solicitors 30 September 2013 - "with Mr L Rogers" deleted Amended paragraphs: 16 30 September 2013 - "with Mr L Rogers" deleted Amended paragraphs: Coversheet/Counsel DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2013