Byrne v RailCorp [No2] [2013] NSWTAB 5

Byrne v RailCorp [No2] [2013] NSWTAB 5

The Board was satisfied on the balance of probabilities that the appellant engaged in inappropriate conduct in breach of RailCorp's Code of Conduct and Dignity & Respect Procedure, as alleged in both incidents on 10 July 2010. The appellant's conduct was objectively serious, struck at the heart of the employment relationship, and warranted disciplinary action up to and including dismissal, notwithstanding his prior long and unblemished service. The Board further found that the penalty of dismissal was not disproportionate and the investigatory and disciplinary process provided procedural fairness. Accordingly, the appeal was disallowed.

Jurisdiction
Australia
Judgment Date
27 August 2013
Procedural Posture
Disciplinary Appeal / Final Decision on Appeal Rehearing on the Papers by Consent
Outcome
Appeal disallowed
Legal Topics
['disciplinary Proceedings' 'dismissal for Misconduct' 'workplace Behaviour' 'procedural Fairness' 'code of Conduct' 'sexual Harassment (alleged)']
['employment Law' 'administrative Law'] ['disciplinary Proceedings' 'dismissal for Misconduct' 'workplace Behaviour' 'procedural Fairness' 'code of Conduct' 'sexual Harassment (alleged)']

Case Brief

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Procedural Posture

Disciplinary Appeal / Final Decision on Appeal Rehearing on the Papers by Consent

Legal Issues

  1. 1 ["Whether the appellant engaged in misconduct amounting to breaches of employer's Code of Conduct and Dignity & Respect in the Workplace Procedure" 'Whether the penalty of dismissal was proportionate to the established misconduct' "Whether the Board observed procedural fairness, including consideration of relevant evidentiary issues such as the 'Thai man incident'"]

Ratio Decidendi

The Board was satisfied on the balance of probabilities that the appellant engaged in inappropriate conduct in breach of RailCorp's Code of Conduct and Dignity & Respect Procedure, as alleged in both incidents on 10 July 2010. The appellant's conduct was objectively serious, struck at the heart of the employment relationship, and warranted disciplinary action up to and including dismissal, notwithstanding his prior long and unblemished service. The Board further found that the penalty of dismissal was not disproportionate and the investigatory and disciplinary process provided procedural fairness. Accordingly, the appeal was disallowed.

Court Disposition

Appeal disallowed

Orders

  • ['The appeal of Kevin Michael Stormon Byrne against the disciplinary action of dismissal by RailCorp is disallowed.']