Transport Appeal Boards New South Wales

• Medium Neutral Citation: Khalil v RailCorp [2012] NSWTAB 25
• Hearing dates: 20 and 29 June 2012
• Decision date: 27 August 2012
• Before: Bishop C (Board)

Decision

Appeal allowed reinstatement ordered

• Catchwords: PUBLIC SERVICE - discipline - rail employee - breaches of Code of Conduct - allegations concerned three declarations for secondary employment - advertising on internet - ABN held - investigated - dismissed - appellant unaware of need to declare - declared when brought to his attention - rejected due to absences - ceased activity - employer contended this continued - reinstatement sought - HELD - appellant truthful - no attempt to conceal - made application when brought to his attention - ceased activity - internet advertising of long standing - ABN not used for business purposes - approval would have been given but for absence record - no conflict of interest raised - punishment excessive and out of proportion - reinstatement ordered.
• Legislation Cited: Transport Appeals Board Act 1980; Transport Administration (Staff) Regulation 2005
• Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811; Han v Rail Corporation of New South Wales [2011] NSWTAB 1; Garland v RailCorp [2011] NSWTAB 27
• Category: Principal judgment
• Parties: Sleiman Khalil (Appellant); Rail Corporation of NSW (Respondent)
• File Number(s): TAB 118 of 2012

DECISION

Introduction

1 Mr Khalil commenced employment with RailCorp on 15 November 2004 in the position of Customer Service Attendant. He subsequently completed training as a Guard, and was promoted to the role of Guard in August 2005. In April 2007 he commenced training as a Train Driver and was promoted to the role of Train Driver in January 2008 and was in this role until his dismissal by RailCorp.

2 On 24 February 2012 Mr Khalil was notified by RailCorp that he was dismissed for breaches of the RailCorp Code of Conduct (the "Code").

3 On 12 March 2012, Mr Khalil lodged an appeal in respect of his dismissal. On the Notice of Appeal he indicated a plea of "Guilty".

4 The matter was listed for disciplinary conciliation before Commissioner Ritchie on 2 April 2012 at which time conciliation took place. As no settlement could be reached between the parties, directions were issued as to the filing and exchange of written cases and statements pursuant to Practice Note 22 and the appeal was re-allocated to the Board as currently constituted and set down for hearing on 20 June, with a further day required on the 29 June 2012.

5 RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980.

Issue(s)

6 Mr Khalil pleaded guilty to the charges against him and sought that the penalty be set aside. It is therefore the Board's task to determine the appropriate penalty to be imposed in all the relevant circumstances.

Background and Chronology

7 The following Background and Chronology has been drawn from the evidence and written submissions before the Board as filed by the parties.

8 On 20 May 2011, Kim Manderson, HR Business Partner Sector 2, referred the issue of Mr Khalil carrying out secondary employment when an application for approval of secondary employment had been declined to RailCorp's Investigations Unit (RUI) for investigation.

9 Mr Brad Kerr, an Investigator with the RUI, conducted a disciplinary investigation in which he conducted business and company searches on Mr Khalil and obtained copies of advertisements for the business "A Mobile DJ 4 U". He also printed extracts from Mr Khalil's social networking profiles and obtained statements from Thomas Wood, Forensic Investigator, and Shelley Wall, Depot Manager Central A, Sector 2.

10 On 18 August 2011, Mr Kerr forwarded a letter to Mr Khalil notifying him of allegations that he had breached the RailCorp Code of Conduct. He was invited to respond to the following allegations in writing within fourteen (14) days (Exhibit 1-2A):

Allegation 1

It is alleged that Mr Khalil breached the RailCorp Code of Conduct by engaging in unacceptable behaviour.

The particulars of the allegation are:

a) Mr Khalil is registered as an Individual/Sole Trader of the business entity trading as; 'A MOBILE DJ 4 U' (ABN 74 571 082 417).

b) Mr Khalil provided false and misleading information when he completed and submitted his Annual Secondary Employment and Voluntary Work Declaration dated 15 June 2009 in respect of secondary employment and voluntary work, in that he failed to declare that he is registered as an Individual/Sole Trader of the business entity trading as; 'A MOBILE DJ 4 U' (ABN 74 571 082 417).

c) Mr Khalil has undertaken secondary employment or voluntary work (as defined in the Secondary Employment and Voluntary Work Procedure) without obtaining prior written approval.

Allegation 2

It is alleged that Mr Khalil breached the RailCorp Code of Conduct by engaging in unacceptable behaviour.

The particulars of the allegation are:

a) Mr Khalil is registered as an Individual/Sole Trader of the business entity trading as; 'A MOBILE DJ 4 U' (ABN 74 571 082 417).

b) Mr Khalil completed and submitted a Secondary Employment/Voluntary Work Application dated 23 November 2010 in respect of secondary employment in relation to the business entity; 'A MOBILE DJ 4 U'.

c) On 31 January 2011, Mr Khalil was advised by Deport Manager Central A, Ms Shelley Wall, that his application was not supported.

d) Mr Khalil has undertaken secondary employment or voluntary work (as defined in the Secondary Employment and Voluntary Work Procedure) without obtaining prior written approval.

Allegation 3

It is alleged that Mr Khalil breached the RailCorp Code of Conduct by engaging in unacceptable behaviour.

The particulars of the allegation are:

a) Mr Khalil is registered as an Individual/Sole Trader of the business entity trading as; 'A MOBILE DJ 4 U' (ABN 74 571 082 417).

b) Mr Khalil provided false and misleading information when he completed and submitted his Annual Secondary Employment and Voluntary Work Declaration dated 27 June 2011 in respect of secondary employment and voluntary work, in that he failed to declare that he is registered as an Individual/Sole Trader of the business entity trading as; 'A MOBILE DJ 4 U' (ABN 74 571 082 417).

c) Mr Khalil has undertaken secondary employment or voluntary work (as defined in the Secondary Employment and Voluntary Work Procedure) without obtaining prior written approval.

11 On 23 September 2011, Mr Khalil provided a written response to the allegations in which he gave an identical response to each of the three allegations (Exhibit 1-S3). In summary he stated as follows:

he denied trading as a business under his ABN;

claimed that he did not consider that he needed approval to carry out his hobby as a DJ as he did it once a month when he could arrange to do so without conflicting with his shifts;

had registered for an ABN to get discounts on DJ equipment and mobile phone deals;

denied being told by Ms Wall that his application was not supported;

claimed that he was unfairly treated, and

did not support the reasons for rejection of his application.

12 On 27 September 2011, Mr Khalil cancelled his ABN registration.

13 Mr Kerr invited Mr Khalil to attend a disciplinary interview on 13 October 2011, but he declined to participate in the interview on the basis that he had answered to the best of his knowledge in writing.

14 Mr Kerr concluded that the allegations against Mr Khalil were substantiated and on 23 November 2011 forwarded his Investigation Report to the Disciplinary Review Panel (DRP) for consideration (Exhibit 1-2A).

15 On 12 December 2011, the DRP reviewed the evidence in relation to the allegations and made a preliminary recommendation that Mr Khalil should be dismissed. On 12 December 2011 Mr Mark Abel, Acting General Manager Customer Service, CityRail South and South West, wrote to him advising of this preliminary view and he was given fourteen days to make submissions in regard to penalty and to submit any further information or material that he wished to have taken into account (Exhibit 1-2B).

16 On 23 December 2011, Berrigan Doube Lawyers provided a response on Mr Khalil's (Exhibit 1-2C). In summary they claimed as follows:

he had obtained his ABN prior to commencing work with RailCorp; only performed DJ work on an irregular and ad hoc basis which did not interfere with his duties or responsibilities under the RailCorp Code of Conduct;

in 6 years employment he had not been counselled for any employment related issues;

when his application for secondary employment was rejected he did not engage in secondary employment;

Ms Wall did not provide any basis for claiming that his absences from work were excessive, and had apologised to him when she discovered that his absences were accounted for by medical certificates.

17 Mr Khalil's response was reviewed by Mr Kerr and on 24 January 2012 he provided a memorandum to the DRP. He also obtained a supplementary statement from Ms Wall. In summary, Mr Kerr obtained evidence that refuted Mr Khalil's claim that he did not conduct secondary employment once his application was rejected, and that he had a history of counselling for employment related issues. He also obtained evidence from Ms Wall referring to each of the absences she considered excessive, and denying she apologised to Mr Khalil (Exhibit 1-2D).

18 On 13 February 2012, the DRP reconsidered the matter and confirmed their recommendation of dismissal. On 21 February 2012 Mr John Tsiros, Acting General Manager Customer Service, CityRail South and South West, signed a letter confirming that Mr Khalil was to be dismissed on 24 February 2012. He was paid four (4) weeks pay in lieu of notice and acknowledged receipt of this letter on 24 February 2012 (Exhibit 1-2E).

19 The relevant section of the Code of Conduct that RailCorp relied on relevant to the allegations against Mr Khalil are follows:

1. Acceptable behaviour and responsibilities:

...The code applies to all RailCorp employees, contractors and consultants.

...................

RailCorp employees ... are to comply at all times with the behaviours outlined in the Code. You are also to adhere to the following general principles:

Put safety first in everything we do;

Always act in the best interests of RailCorp;

Maintain and promote high levels of acceptable behaviour;

Help to build and maintain a "Just Culture" where employees are treated fairly and justly;

....................

As an employee... you are responsible for the way you behave and your actions. All your decisions must be ethical and comply with legislation, awards, policies, procedures, rules and job requirements. In your work at RailCorp you must:

Carry out your duties carefully, safely, honestly, courteously and fairly;

Be aware of possible conflicts of interest and breaches of the Code and notify senior employees as appropriate;

Use your authority and delegation/s in an appropriate and unbiased way for the intended work purposes;

Use RailCorp resources properly, efficiently and economically;

Be honest and accurate in timekeeping and in meeting attendance requirements;

Create and maintain full and accurate records of work performed, including reasons for your decision making;

20 Mr Khalil attended RailCorp Code of Conduct briefings on 23 October 2006 and 30 December 2009. He therefore knew, or ought to have known, his responsibilities under the Code.

Evidence

21 RailCorp's evidence was contained in the Investigation Report (Exhibit 1- 2A) which included, inter alia, the various letters exchanged concerning the Allegations and the disciplinary process and outcome; the Code of Conduct; the relevant Secondary Employment and Voluntary Work Procedures; Mr Khalil's Ellipse record; Mr Khalil's relevant Secondary Employment Declarations; internet extracts re advertising; ABN documentation; Facebook extracts; CD of phone conversation, and Statements from the following RailCorp employees:

Mr Thomas Wood .... Forensic Investigator (Exhibit 1-2A/26),

Ms Shelly Wall........... Depot Manager (Exhibits 1-2A/28,29, D4),

Mr Robert Murry......... Senior Operations Standard Manager (Exhibit 2)

22 Mr Wood's evidence concerned the phone calls he had made initially to a mobile phone number listed in the True Local Directory for 'A Mobile DJ 4U', the call was unanswered and registered as a missed call. He then called the landline number given which was answered by a male with a thick Mediterranean accent who during the course of the short conversation in answer to the query whether it was the 'mobile DJ' (and then if available for a specified number of hours on a specific date/s) said that was his son Sam and gave him a mobile number. Mr Woods then rang that number left a message and received a return voice message that said "Hi Tom, ah I've got a missed call from ya. I'm the DJ" he then went on to give ask for a call back, and gave the number.

23 Mr Wood acknowledged that he had never actually spoken with Mr Khalil. Mr Khalil never performed DJ services for him, he never entered into any agreement with him to perform DJ services and he never witnessed Mr Khalil in a live environment perform DJ services apart from the photos he saw on his Facebook page.

24 Ms Wall outlined her duties as a Depot Manager which had included responsibility for Mr Khalil between 2005 and February 2011. She confirmed the voice in the phone message referred to in Mr Wood's evidence as being the voice of Mr Khalil.

25 She also said that she had first been told by another employee about Mr Khalil DJ'ing at a party, but could not remember when. She subsequently approached him and told him he had secondary employment and he needed to submit it. He said he was only doing it for family and friends. She agreed that he attempted to argue the point about whether he should declare this. He didn't take any action about his after this informal discussion which Ms Wall thought was about 2 months before her meeting with him in October.

26 Ms Wall stated that she met with Mr Khalil on 14 October 2010 to discuss his excessive absences which were to be reviewed again in January 2011. They also discussed whether he undertook secondary employment which he replied in the negative and he later told her that he did perform disc jockey work at functions for which he did not get paid. She encouraged him to submit a Secondary Employment declaration if he was working as a disc jockey and gave him a copy of the form. She confirmed all this in a memo to him on 12 November 2010. She sent the memo to him because she had not received an application from him.

27 Ms Wall stated that during her subsequent absence Mr Murry as Acting Depot Manager met with Mr Khalil on 23 November 2010 to discuss him completing the relevant application which was done and confirmed in a memo issued to Mr Khalil by Mr Murray the next day indicating that it had been forwarded to Mr Peter Worboys HR Business Partner for his consideration.

28 In oral evidence she said that the meeting on 23 November was cancelled as her mother died and she was off work for three and a half weeks returning in early January 2011. The secondary employment application was returned back for her to deal with because Mr Murry had not completed the relevant section on the form.

29 Ms Wall confirmed that usually such an application took about two or three weeks from being sent off to being returned. If she recommended an application it was usually approved.

30 She had considered Mr Khalil's 2010 application for Secondary Employment which indicated on the form under 'Organisation/Business' details " A Mobile DY 4U" and in the details section; "I play music on CDs at parties using a dj sound system and I also MC during the Function". Under 'Fatigue Assessment' he wrote "I only DJ on my rostered days off to ensure I have adequate rest for my next shift".

31 Ms Wall stated that when she considered Mr Khalil's application she checked his absence reports which she considered excessive. She had met with him on previous occasions relating to his poor attendance record. Due to his poor attendance, she came to the conclusion that he was not capable of conducting secondary employment, particularly considering his position conducting Rail Safety Work as a driver.

32 On 19 January 2011 she issued a memo to Mr Khalil advising him of a scheduled meeting on 31 January 2011 to discuss an operational incident (that occurred on 5 January 2011) and his attendance record. The meeting proceeded on that day with Mr Murry SOSM in attendance. Mr Murray discussed the operational incident with Mr Khalil and the outcome was noted on the "Crew Personnel File Notes'. They also discussed Mr Khalil's request for secondary employment and she told him, in the presence of Mr Murry, that she had reviewed his request his request and after considering his excessive absences the application was not supported. She further recommended that if he reduced his absences over the next six months she would review any new application submitted by him.

33 The next day (1 February) she made a notation (which she signed and dated) on the fourth page of the application under the 'Manager's Declaration Special Conditions' section as follows:

Met with Sleiman on 13 Jan 2011 and advised him because of his excessive absences I could not support his application as I was concerned that his absences would increase. I did tell Sleiman if he reduced his absences in the next six months I would revisit a new application from him.

34 Ms Wall also gave specific detail as to his absence record and his absence history which supported the views she had reached. Prior to making a decision on his application she had checked his absence reports, HR files and consulted with the HR Business Partner. That information was attached to her third statement.

35 Ms Wall was sure that in the meeting on 31 January she told Mr Khalil she was not recommending his application for approval because of his absences. She had also spoken to Mr Merceica on the phone before the meeting and told him that she was concerned about his absences and that it shouldn't be approved and that she should tell him to improve his absences. Mr Merceica then rang her and said he wasn't going to approve the application. She did not speak to Mr Khalil and advise him about that because he transferred to the InterCity Depot.

36 Ms Wall said she did issue Mr Khalil with a memo after the meeting on 31 January, but did not give it to him personally, it went out internally through the dispatch system. She sent the memo off, maybe not on that day but the following week. His file went to the InterCity Depot but it was not on the file. After he left it was no longer her responsibility but that of his new manager. She did not know if Mr Khalil got the memo.

37 Mr Murry confirmed the detail contained in an email he sent to Mr Kerr on 22 November 2011. That email confirmed that Mr Khalil was issued with a memo on 19 January about attending a meeting on 31 January to discuss an operational incident and his attendance. He was present at the meeting. Secondary employment was discussed and Ms Wall told Mr Khalil she was not going to support his application as his attendance was unsatisfactory. He did a Crew Personnel File Note and Ms Wall did a memo about the attendance discussion and the secondary employment. He no longer had access to that memo from his file as Mr Khalil had transferred to the Intercity Depot.

38 Mr Murry confirmed the memo about the meeting did not mention secondary employment. He discussed the serious operational incident with Mr Khalil which concerned his driving of a train and having one car off a station platform.

39 Both he and Ms Wall discussed the issue of secondary employment jointly. Ms Wall took file notes. He viewed the file note at the time but could not recall whether he saw her give that to Mr Khalil. He indicated that they never met with Mr Kahlil after that because he transferred to the InterCity Depot.

40 As far as he was aware it was Ms Wall's role to make recommendations about the secondary employment application but not to make the decision. Hers was the first signature that would go on the form.

41 Mr Khalil stated that he began DJ'ing in 1996 at parties as a hobby and before he started working for RailCorp.At around the same time in 1996, he registered for some advertising with the Yellow Pages to help him to get gigs as a DJ. From 1996 onwards, he registered with different organisations and websites to advertise his activities as DJ and to try to get gigs. In addition to the Yellow Pages, he recalled registering with 'True Local', 'Lightsounds', 'Arabic Pages' and 'White Pages'. This was usually done through online registration and other than an initial fee when he first registered with Yellow Pages, he did not have to pay to register for advertising on these sources at any time. All of the advertising that he engaged in was started before he began working at RailCorp.

42 Mr Khalil believed that any other sources of advertising included in RailCorp's case must be because the websites were linked and one registration will show up in more than one source. None of these advertisements were paid advertisements or listings which meant that most people would not find a listing for him unless they searched for him specifically. This was because if someone searched for a general term like 'DJ Sydney', many pages of advertisements and paid listings would appear before his listing. As a result, those listing generated very few calls.

43 Mr Khalil stated that he had not edited, updated, or taken any action to keep any of these advertisements or listings since 2006 at the latest.

44 Mr Khalil stated that in 2006 he registered for an Australian Business Number (ABN) with the name of "A Mobile DJ 4 U" because he was advised that getting an ABN would enable him to get cheaper equipment and special deals such as mobile phone deals.

45 He denied having an ABN for the DJ'ing, it was only to help him buy cheap equipment. He never declared any income on the ABN so it wasn't much of a business.

46 Mr Khalil stated that when he started at RailCorp he never hid the fact that he was also a DJ and believed that a lot of people at RailCorp were aware of this. He DJ'ed sometimes at parties on weekends but it did not interfere with his work at RailCorp. Being a DJ was more like a social life and a was a hobby he enjoyed. Any money that he received was a bonus that helped him support his wife, two kids and mortgage.

47 He confirmed that he had read the Secondary Employment declarations and when he signed it in 2009 he was DJ'ing but did not declare it because he considered it a hobby. That was his own decision.

48 Mr Khalil stated that he did not have any concerns raised about being a DJ until late 2010 when he was approached by Depot Manager Shelley Wall who asked him about being a DJ which he confirmed he was and she told him he would have to declare this as secondary employment. He questioned this because he never thought of it as a business or work that had anything to do with RailCorp and was told that he had to declare it anyway. After this conversation he did make a secondary employment declaration regarding the DJ'ing where he provided all information that was asked of him to the best of his ability.

49 He agreed that when Ms Wall both approached him informally and formally and he told her that he only did it for family and friends. He believed what he told her was correct but agreed that it was not correct and that what he told her was untrue and that he advertised an hourly rate of $75.

50 He did not recall how long it took between being told by Ms Wall and handing in the form.

51 Mr Khalil said in response to Ms Wall's statement about the 31 January meeting that he did not recall being told that his secondary employment was declined in January 2011 by Ms Wall or any other person. He did not recall Ms Wall telling him that his secondary employment application had been denied at any time. He did recall being asked to explain an operational incident in January 2011 and being questioned about his sick leave but he had complied with RailCorp's policy and provided sick certificates where required. He did not remember the exact date of that discussion.

52 He confirmed in cross examination that he did not recall being told that he application was not approved. He also did not recall doing any DJ'ing at that time. He had not done any DJ'ing since it was brought up by Shelly Wall and someone had told him he couldn't do it, and he did not do it, and then he was told formally by Mr Pearce sometime in March 2011.

53 He also did not recall receiving any paper work stating that his secondary employment had been declined and had no such paperwork in his records. The first time he recalled being told that his application for secondary employment had been declined was during a meeting with Crew Manager Stephen Pearce after he had transferred to a position at the Intercity Depot at Central in February 2011. He believed he undertook a month's training for the new role and then had a meeting with Mr Pearce as part of his introduction to Intercity in March 2011. During the meeting, Mr Pearce said words to the effect of "Did you know Shelley Wall said you can't DJ". He replied "No". Mr Pearce then told him that he was no longer to DJ and he accepted this. This was the first time that he recalled ever being told by RailCorp that he was not allowed to DJ. He believed that Ms Wall must have recently made the decision at that point in time and passed it on to Mr Pearce to deliver to him because he was not in her depot any more.

54 Mr Khalil stated that he accepted what Mr Pearce told him and did not do any DJ work after that time as he did not want to put his career in jeopardy. He did not believe he received any paperwork from RailCorp at that time either. His work as an Intercity driver was more demanding and paid more and he found that he did not have room to DJ anymore anyway.

55 Mr Khalil stated that at that time he did not make any change to his ABN registration or his listings on advertising sites as he did not think about them. He had no other issues raised with him about DJ'ing or attendance while he was an Intercity Driver at that time.

56 Mr Khalil said that the actions he took to advertise on the internet occurred before he worked for RailCorp. He started as a DJ when he left High School. Once it was put on the internet it just kept going and he didn't have to pay for it.

57 In response to RailCorp's evidence about his Facebook accounts he stated that he had one Facebook account and a Facebook page. One was his personal account which included his nickname of 'Sleiman Deejay Slayman Khalil' and included that he was interested in 'Deejaying', because he was. The other page related to 'DJ Slayman Khalil "A Mobile DJ 4 U"'. He created this page in 2010 before he was aware there was any issue with being a DJ and added his friends to get gigs. Even though he had these sites, he did not do work as a DJ after he was told not to by RailCorp.

58 Mr Khalil confirmed the circumstances of the phone message referred to by RailCorp. He got a call from his mother informing him that someone had called his parents' house asking for him as a DJ, he no longer lived at that address and had not done so for years. He called the number to find out who had called and when he called referred to himself as "the DJ" as identification. He did not offer or agree to do any work as a DJ and would not have done this. He may have decided to refer the person on to one of his DJ friends if he had spoken to them.

59 Mr Khalil confirmed that he had signed a secondary employment declaration in June 2011, he read it before he signed it and declared that he had not undertaken any secondary work or volunteer activities.

60 He agreed that he still had an ABN at that time but he had ceased his DJing and he did not see that ABN as him carrying out a business. He had since cancelled it on 27 September 2011.

61 Mr Khalil confirmed the advertising details in RailCorp's evidence and that his Facebook page showed pictures of him DJ'ing at various times and events in 2010. He maintained that he did not DJ often and it was not regular employment. It was a hobby and so he could have a social life, because he was married with kids he didn't have a social life. It was a way for him to go out and play music. Sometimes he was paid and some time he wasn't.

62 Mr Khalil maintained he put the same answer to all three allegations on the advice of his Union when he went to them to ask how to respond and did it all in about 20 minutes to half an hour.

63 Mr Khalil stated that since being dismissed from RailCorp he had tried to find work and have been unsuccessful. He was seeking reinstatement and needed his job to support his family and pay his debts.

Submissions on behalf of the Respondent

64 Ms Robinson made oral submissions in addition to the written submissions as filed (Exhibit 1 and 2).

65 It was submitted that as Mr Khalil had attended RailCorp Code of Conduct briefings in 2006 and 2009, he knew, or ought to have known, his responsibilities under the Code. By engaging in secondary employment without obtaining prior approval and continuing to engage in this employment when the approval had been rejected, and by providing false and misleading information on his Secondary Employment Declarations in 2009 and 2011, Mr Khalil breached the Code in that he -

failed to carry out his duties honestly and fairly;

failed to maintain high levels of acceptable behaviour;

failed to be aware of breaches of the Code and notify senior employees;

failed to use his authority in an appropriate and unbiased way for the intended work purposes;

failed to use RailCorp resources properly, efficiently and economically;

failed to be honest in meeting attendance requirements; and

did not act in the best interests of RailCorp.

66 His conduct also amounted to breaches of that chapter of the Code entitled 'Secondary employment and voluntary work' which states "It is your responsibility to ensure that RailCorp is fully informed and has approved any secondary employment or volunteering BEFORE you start additional work (paid or unpaid)." His conduct also breached RailCorp's Secondary Employment and Voluntary Work Procedure.

67 As Mr Khlail had pleaded guilty to the allegations, Ms Robinson traversed the evidence relevant to the various points in mitigation raised by Mr Khalil in response to the allegations of breaches of the Code.

Allegation 1

68 This related to his provision of false and misleading information on his Annual Secondary Employment and Voluntary Work Declaration on 15 June 2009. Specifically, he did not declare that he was registered as an Individual/Sole Trader of the business entity "A Mobile DJ 4 U". It was also alleged that he undertook secondary employment without obtaining prior written approval.

69 It was submitted that while Mr Khalil claimed that he did not believe he carried out secondary employment as he regarding DJ'ing as a hobby and did it once a month when he could arrange it without conflicting with his shifts, this was an inadequate explanation as he signed his 'Annual Secondary Employment and Voluntary Work Declaration' on 15 June 2009 which specifically stated that he had read and understood the 'Secondary Employment and Voluntary Work Procedure'. That procedure spelt out the types of work which must be declared.

70 It was submitted that the Board should have difficulty in accepting this excuse because if this declaration was correct, it was not plausible that he thought his work DJ'ing was outside of the scope of voluntary work that must be declared. If the declaration was not correct and he did not read and understand the Procedure, then he had not only provided false and misleading information relating to his secondary employment, he had provided a false declaration.

71 Further, the Board should not accept Mr Khalil's claim that he thought he did not have to declare his 'hobby' because his DJ'ing was not a hobby, it was a business, for which he had registered an ABN, and for which he advertised in numerous online publications, including the Yellow Pages. He told Shelley Wall that he only DJ'ed for family and friends. This was a lie; as he admitted in cross examination, and as shown by the evidence he advertised to the general public at an hourly rate of $75. His DJ'ing was not a hobby, and it was not voluntary; it was a business which he advertised and charged for his services. The Board therefore could not accept his excuse that he did not know he had to declare it as secondary employment as he considered it a hobby.

72 Once Mr Khalil was told by Shelley Wall that he was required to declare his secondary employment, there was a significant time lapse before he made the declaration. Even when he was given the secondary employment declaration form by Ms Wall on 14 October 2010, he did not submit it until 23 November 2010, after receiving a memorandum to remind him on 12 November 2010 and being called into a meeting with Mr Murry on 23 November.

73 It was also questioned whether the claim by Berrigan Doube Lawyers that Mr Khalil obtained his ABN prior to commencing employment with RailCorp was accurate. He commenced employment with RailCorp on 15 November 2004 and the available business search (as attached to Mr Mesaglio's statement) showed the ABN to have been active from 1 August 2006. The evidence therefore indicated that he was already an employee of RailCorp when he registered his ABN, and as such, would have had knowledge of his obligations with respect to secondary employment.

Allegation 2

74 This related to Mr Khalil's application for secondary employment on 23 November 2010, which was rejected on 31 January 2011 on the grounds of his poor attendance record. It was alleged that he carried on secondary employment as a DJ despite his application being rejected.

75 It was submitted that there was contention as to when Mr Khalil was told that the application was not supported. It was RailCorp's position, as confirmed by the evidence of Ms Wall and Mr Murry, that this occurred in a meeting on 31 January 2011. Mr Khalil claimed to not recall the conversation with Ms Wall about his secondary employment at that time. Ms Walls' evidence was then summarised: that she told him his application was not approved; had considered his poor attendance at work; conducted a fatigue assessment and had made a decision not to support the application; this was discussed with Mr Mercieca, who was ultimately responsible for approving the application; he shared her opinion and that the application would not be approved; she conveyed this to Mr Khalil and told him that if he reduced his absences over the next six months, she would review any new application he submitted.

76 It was submitted that there was no reason for the Board to doubt this evidence, despite Mr Khalil's claim that he did not recall it. Mr Murry's oral and written also supported Ms Walls' evidence about the meeting. The Board could be satisfied that Mr Khalil was informed on 31 January 2011 that his secondary employment as a DJ was not approved.

77 Ms Robinson submitted that it was also relevant to note that the information on Mr Khalil's secondary employment application was not entirely supported by the evidence. He stated on his application (signed on 23 November 2010) that the hours he worked as a DJ were from 7pm to midnight once a fortnight on a Saturday night. His Facebook page, entitled DJ SLEIMAN KHALIL "A MOBILE DJ FOR U" indicated that this was not accurate. He conceded in cross examination that the Facebook page indicated the days he intended to DJ, though he could not confirm if he had done so. The dates on the Facebook page when he claimed to have had DJ'ing jobs include a Friday - 2 April 2010 and interestingly referred to a "new website" arabicdj.hopout.com.au on 9 December 2010, which was during the period of time in which he claimed to have ceased his secondary employment activities.

78 The evidence of Thomas Wood was that he actively pursued business as a DJ when contacted by Mr Wood, by returning his telephone calls in August 2011. Mr Khalil did not deny making the phone call. There was also extensive evidence that he continued to advertise his DJ'ing services on the internet and social networking sites after 31 January 2011. He continued to pursue work as a DJ despite being specifically told by Ms Wall that his application was rejected, and that it would be reviewed in six months if his attendance improved.

79 It was submitted that this was the most serious of the allegations against Mr Khalil, as he had full knowledge that RailCorp did not approve his secondary employment but he continued to advertise and pursue work as a DJ in blatant defiance of his employer's Code and Secondary Employment and Voluntary Work Procedure.

Allegation 3

80 This related to Mr Khalil's Annual Secondary Employment and Voluntary Work Declaration on 27 June 2011. Specifically, he again did not declare that he was registered as an Individual/Sole Trader of the business entity "A Mobile DJ 4 U". This occurred after he had applied for approval for secondary employment as a DJ and had that application rejected.

81 In mitigation of this allegation he claimed that he "did not declare DJ because I regarded it as a hobby". This was the same reason he gave for the false and misleading information he provided on his Annual Secondary Employment and Voluntary Work Declaration on 15 June 2009.

82 Mr Khalil asked the Board to find that he did not provide false and misleading information on his 2011 declaration as by that time he had ceased DJ'ing. Even if the Board were to accept that, the declaration he made in 2011 was false for other reasons. He signed the declaration which clearly stated that it referred to being involved in a business in any capacity, including inactive companies. Mr Khalil still had his DJ'ing business, he still had an active ABN and he still advertised his services. On 27 September 2011 he cancelled his ABN, which meant that on 27 June 2011 when he declared that he was not involved in any business including inactive companies, he was aware that he still had an active ABN. It was simply not plausible from him to plead ignorance to the requirements of the Secondary Employment and Voluntary Work Procedure in 2011 after he had gone through the process of applying for approval for his secondary employment only six months earlier.

83 With respect to Allegation 3 and his declaration in 2011, he repeated his excuse that he considered DJ'ing to be a hobby. This was despite knowing that he was required to declare DJ'ing as secondary employment. In cross- examination he sought to blame his Union for telling him to answer each allegation the same. It is submitted that the Board could view this response as another example of Mr Khalil taking a blasé attitude to RailCorp's procedures.

84 It was submitted that when he provided false and misleading information on 27 June 2011 he did so with full knowledge that his secondary employment as a DJ had to be declared and approved.

85 It was submitted that it was also relevant to note that Mr Khalil's reason for providing false and misleading information on 27 June 2011 changed between his first written response to the allegations and his response to the preliminary recommendation of dismissal. Both explanations were rejected by RailCorp as false. The first explanation that he thought his work as a DJ was a hobby conflicted with the second explanation, that he did not provide false and misleading information as he wasn't carrying out DJ work at the relevant time. This explanation also conflicted with his plea of "guilty".

86 It was submitted that Mr Khalil continued to advertise for DJ work after his application was rejected on 31 January 2011 and pursued such work when enquiries were made by Mr Wood. The Annual Secondary Employment and Voluntary Work Declaration referred not only to work engaged in, but to involvement in a business in any capacity. As at 27 June 2011 he continued to be registered as an Individual/Sole Trader of the business entity trading as "A Mobile DJ 4 U". His declaration that he was not engaged in secondary employment was false and misleading.

87 It was submitted that the Board could be satisfied that he was guilty of the allegation, and that the declaration made by him on 27 June 2011 was made with his full knowledge that it was false and misleading.

88 It was submitted that Mr Khalil had entered a plea of guilty to the allegations but his claims in mitigation of his actions lacked plausibility and contradicted each other. His actions caused serious concern for RailCorp about his suitability for the role of Train Driver, as his defiance of the Secondary Employment and Voluntary Work Procedure demonstrated a disregard for fatigue management, which was a vital aspect of the Train Driver role.

89 It was submitted that it was also concerning that he had continued to provide false information in response to the allegations, specifically in his denial that Ms Wall informed him his application was rejected. This was refuted by both Ms Wall and Mr Murry, Senior Operations Standards Manager, who was also present in the meeting. Mr Khalil's willingness to fabricate his version of the meeting was behaviour in keeping with his provision of false and misleading information on his secondary employment declarations, and was not behaviour that could be tolerated from a RailCorp employee.

90 RailCorp disputed the factual matters relied on as evidence on behalf of Mr Khalil in the written submissions of the RTBU on the basis that this was opinion and conjecture by Mr Kahlil with no supporting evidence provided.

91 RailCorp did not agree that Mr Khalil did not consider his hobby of DJ'ing to constitute secondary employment, nor that he ceased DJ activities in March 2011. There was no evidence provided that he complied with a direction to cease his secondary employment after March 2011. His various advertisements offering services as a DJ were readily available online to the investigator from June 2011 when the investigation commenced, and he identified himself as a DJ to the Investigator Mr Wood on 6 August 2011.

92 Ms Robinson submitted that Mr Khalil had been dismissed as a result of his breaches of the Code and the Secondary Employment and Voluntary Work Procedure. His attitude to the requirements of the procedure, his dishonestly about the nature and extent of his secondary employment and the lack of plausibility in his excuses about believing it was a hobby showed that he had not taken responsibility for his actions. His actions caused serious concern for RailCorp about his suitability for the role of Train Driver, and his defiance of the Secondary Employment and Voluntary Work Procedure demonstrated a disregard for fatigue management, which was a vital aspect of the Train Driver role. It was submitted that dismissal was appropriate in this matter. In all of the circumstances the Board should not alter the decision of RailCorp to dismiss Mr Khalil.

Submissions on behalf of the Appellant

93 Mr Edghill made oral submissions in addition to the written submissions as filed (Exhibit 3).

94 It was submitted that Mr Khalil's appeal must be upheld because RailCorp could not prove the misconduct that they alleged against him: that being that he engaged in Secondary Employment as a Disc Jockey (DJ) after being told by RailCorp not to do; that he knowingly breached their Secondary Employment Policy by acting as a DJ; and that he knowingly provided false or misleading information to them in relation to 'Secondary Employment Declaration' forms that he completed.

95 Mr Khalil did not engage in any such misconduct and RailCorp could not prove otherwise. Since beginning work at RailCorp he had been open about the fact that he occasionally acted as a DJ. Originally, he honestly believed that he was not required to formally declare to RailCorp the fact that he was an occasional DJ on 'Secondary Employment Declaration' forms that he completed. He also believed that he did not require permission from RailCorp to DJ.

96 It was submitted that when Mr Khalil was told by a manager, Shelly Wall, for the first time in late 2010 that he should declare his DJ work, he did so. Again RailCorp could not prove otherwise. Critically, when he was told by a that he was not to act as a DJ anymore, he immediately stopped acting as a DJ and RailCorp could not prove otherwise.

97 It was submitted that the Board had two functions in this appeal.

98 Firstly, to determine whether the misconduct alleged by RailCorp had been proved on the available evidence. That is, had RailCorp proved that Mr Khalil knowingly breached their Secondary Employment Policy between 2009 and 2011 by engaging in secondary employment as a DJ? Had RailCorp proved that Mr Khalil knowingly provided false or misleading information when he declared that he did not have secondary employment in 2009 and 2011? Had RailCorp proved that Mr Khalil engaged in secondary employment as a DJ after explicitly being told not to in 2011?

99 Secondly, if the misconduct was found to be proven then to determine whether dismissal was the appropriate punishment in the circumstances or whether it was harsh.

100 It was submitted that as RailCorp had not proved that Mr Khalil engaged in the misconduct that they alleged, the Board could not conclude that Mr Khalil breached the Code of Conduct, and his appeal must be upheld.

101 However even if RailCorp had proved any or all of the allegations propositions, then the Board must decide whether the breaches proven warranted dismissal as a penalty and it was submitted such misconduct would not amount to a serious enough breach to warrant dismissal.

102 Mr Edghill summarised the key relevant facts and evidence before the Board as follows:

Mr Khalil began acting as a DJ in 1996 as a hobby and from 1996 onwards, he registered a number of listings on advertising sites such as the Yellow Pages to try to get gigs as a DJ. He did not take any action to update or edit these advertisements after 2006 at the latest. In 2006, he attained an ABN to get cheaper equipment and special deals.

After joining RailCorp in 2004, he did not hide the fact that he was a DJ. He DJ'd occasionally, viewed it as a hobby and a form of socialising, did it intermittently, on an ad-hoc basis and did not believe this interfered with his work. As such, he did not view it as a kind of employment or as something having any connection with his job. There was no evidence he knowingly breached the Secondary Employment Policy when he acted as a DJ from the time that he joined RailCorp up until the time that he was expressly told by RailCorp not to DJ. He made no attempt to hide this from other employees or from RailCorp.

In 2009, he completed a 'Secondary Employment Declaration' form on which he declared that he did not undertake secondary employment. At this time, Mr Khalil did not consider his hobby of DJ'ing to constitute secondary employment.

The first time he was informed that he should declare his actions as a DJ was in late 2010 by RailCorp Manager Ms Shelly Wall when she approached him about the issue and he admitted that he acted as a DJ on occasions. His immediate admission to his manager demonstrated that he did not consider that his actions breached RailCorp policy.

As a result of Ms Wall's approach, he completed a Secondary Employment Declaration Form dated 23 November 2010 and declared he had 'secondary employment' as a DJ. At this time RailCorp clearly knew that Mr Khalil was acting as a DJ, and was still not told not to do it.

Ms Wall stated that she told Mr Khalil on 31 January 2011 that he could no longer DJ. He stated that he was not told until March 2011. Even if Ms Wall's statement was accepted there was no evidence he was told he could not DJ at any time before 31 January 2011 despite RailCorp clearly knowing that he had been acting as a DJ. This supported his contention that he honestly did not know that he was breaching the policy and demonstrated his actions in occasionally acting as a DJ, until he was told not to, were reasonable.

He was not provided with any written documentation declining his application and it appeared RailCorp made a decision to decline the application on 2 February 2011.

Mr Khalil transferred out of Ms Wall's Depot and into the Intercity Depot on 27 February 2011, where he was told by RailCorp Manager Stephen Pearce in March 2011 that his application had been denied and he was not to undertake DJ activities. He complied with this direction.

On 27 June 2011, he completed a 'Secondary Employment Declaration' form on which he declared that he did not undertake secondary employment. This declaration was true as he had ceased DJ activities in March 2011.

103 It was submitted that based on the evidence RailCorp had not proved that Mr Khalil knowingly breached the secondary employment policy when he acted as a DJ between 2009 and 2011.

104 Further, there was no evidence that demonstrated that Mr Khalil knowingly provided false or misleading information when he stated he was not undertaking secondary employment on declarations he made in 2009 and 2011.

105 It was submitted that with regard to the 2009 declaration, Mr Khalil filled out the form honestly and to the best of his ability. He did not knowingly make a false declaration. He did not believe that he was undertaking secondary employment at the time he filled out the declaration in 2009 and so his statement on the form was honest. In cross-examination he explained that he did not consider DJ'ing to be secondary employment. He was not employed as a DJ, he did not have a regular job as a DJ, he did not consider the DJ'ing to be a business, he did not derive any substantial or regular income as a DJ, he regarded it as a hobby, as his social life, and as something that did not affect his job at RailCorp. It was not something he tried to hide.

106 It was submitted that while he was technically wrong, this was a reasonable position for him to take in 2009. He did not understand the policy and that was very reasonable mistake to make. He did not see the connection between his occasional DJ'ing and his job at RailCorp and while he signed the declaration believing he understood the policy it was now known that he did not.

107 If the Board was satisfied that Mr Khalil's failure to understand the policy in 2009 meant some form of misconduct had been engaged in at that time, then the Board must also consider that RailCorp knew this in 2010, and it was not serious enough for it to warrant disciplinary action then, and did not warrant disciplinary action now.

108 With regard to the 2011 declaration, on the evidence, Mr Khalil had stopped acting as a DJ by this time. This declaration was made after his meeting with Mr Pearce in March 2011. Mr Khalil could not remember when he last DJ'ed but he but he clearly understood after that meeting with Mr Pearce that he was not to DJ and he did not DJ after that time. Therefore the declaration was true and the secondary employment policy not breached. There was no evidence offered by RailCorp that he DJ'ed after that time and on that basis the allegations in relation to the 2011 declaration could not be proved.

109 Mr Edghill rejected the evidence relied on by RailCorp to argue that Mr Khalil was still undertaking secondary employment when he made the 2011 declaration on the following basis:

Reliance on the ABN

This was registered once in 2006 and that it still existed after this date was not evidence that Mr Khalil engaged in work as a DJ in any capacity in 2011.

Internet advertising

Mr Khalil registered and edited the advertising between 1996 and 2006 and that it still existed was not evidence that he engaged in work as a DJ in any capacity in 2011.

Mr Khalil's Facebook account incorporating the term "Deejay" and listing "Deejaying" as an interest.

This was his private Facebook account made in his nickname. It was evidence that he is interested in DJ'ing and not evidence that he engaged in work as a DJ in any capacity in 2011.

A Facebook page for 'A Mobile DJ 4 U'.

This page was created in 2010 and was shared with Mr Khalil's friends and not evidence that he engaged in work as a DJ in any capacity in 2011.

110 Mr Edghill also submitted that Mr Khalil's oral evidence was that it would be very difficult for you to find him by simply searching for a DJ in Sydney. His name did not come up in the top search results. He was not getting any calls as a result of these listings, he could not even recall their existence. After he commenced with RailCorp he had taken no action to either create or maintain these listings. He was no required to pay money. Once a listing was made, it was made and existed, as it probably always would, on the internet. mr Khalil had also explained the reason for the ABN registration which he had not recalled until it was brought to his attention during the investigation.

111 Mr Edghill also rejected the reliance by RailCorp on Mr Khalil returning a phone call to a RailCorp investigator where he identified himself as a DJ. This occurred after the investigator had phoned a number found on advertising for the DJ business that had previously been registered. The number was for Mr Khalil's parent's house, a place that he no longer lived at and had not lived at for some time. Mr Khalil was told by his mother that the person was asking for a DJ. Mr Khalil returned the call to find out who was calling him. He left a message where he stated that he was returning a call and that he was "the DJ". Mr Khalil stated that he did this to identify himself to the person he was calling. This was a logical and reasonable thing to do given that the person had called Mr Khalil on the apparent belief he was a DJ. Mr Khalil did not offer either to work as, or agree to work as, a DJ. This was only evidence that Mr Khalil returned a phone call, it was not evidence that Mr Khalil engaged in work as a DJ in any capacity in 2011.

112 It was also submitted that in cross examination Mr Wood agreed that Mr Khalil did not perform any DJ services for him, he did not witness him performing DJ services for anyone else, and entered into no agreement for the performance of DJ services.

113 It was submitted that RailCorp's reliance on these issues did not establish that Mr Khalil engaged in work as a DJ at any time in 2011 and therefore there was no evidence that his declaration that he was not undertaking secondary employment in 2011 was dishonest.

114 There was also no evidence that demonstrated that Mr Khalil acted as a DJ after being expressly told not to. Whether Mr Khalil was told not to act as a DJ on 31 January 2011 as RailCorp asserted, or in March 2011 as he stated, there was no evidence that he engaged in work as a DJ in any capacity in 2011 at any time.

115 It was submitted that it was clear that RailCorp had not proved the misconduct that they alleged against Mr Khalil.

116 Mr Edghill also rejected RailCorp's assertion that Mr Khalil had been untruthful when he stated that he was not told by Ms Wall on 31 January that he could no longer DJ. This also had not been proved. Mr Khalil stated that he could not recall being told by Ms Wall that application had been declined and the first time he was told was by Mr Pearce in March 2011. There appeared to be no reason for Mr Khalil to be dishonest about this issue which amounted to, at most, less than two months', or perhaps only one month's difference.

117 It was pointed out that in Ms Wall's statement she told him on 31 January 2011, "that his secondary employment was not approved", but discussion of the secondary employment application (an application that had been made more than two months earlier) did not appear as an item for discussion on the meeting invitation sent to Mr Khalil. Further, the note made by Ms Wall on his application stated she told him she "could not support it". This was obviously different to telling him it was "not approved". Particularly when it was considered that it was not Ms Wall's decision to approve or reject the application. The decision was made and the application was "not approved" by Mr Merceica on 2 February 2011, two days after Ms Wall's meeting with Mr Khalil. This clearly supported Mr Khalil's evidence that he was not told on 31 January that the application had been rejected.

118 Mr Edghill submitted that what was known about the meeting of 31 January was that it was initiated by a memo clearly giving the reason for the meeting and making specific mention of an operational incident and no mention of the secondary employment application. Mr Murry made a note of that conversation and a memo was issued to Mr Khalil is an outcome of the meeting. Again, the memo noted the operational incident and no mention was made of the secondary employment issue. There was no record of that meeting that made any mention of the secondary employment issue and none that was provided to Mr Khalil. Both Ms Wall and Mr Murry agreed during cross-examination that the operational issue was a serious issue and Mr Khalil stated it was one he was quite concerned about. This meeting occurred two days before the application was marked as not approved by Mr Merceica and it was his decision not to approve the application not Ms Wall's decision. These were undisputed facts. Critically at the time of the meeting the decision to deny the application had not been made. RailCorp attempt to explain this away as Ms Wall knowing what the decision would be. Any such attempt was undone by Ms Wall's evidence during cross examination.

119 It was submitted that Ms Wall said she would have told Mr Khalil she wasn't recommending its approval not that it had been rejected. This was clearly different to telling Mr Khalil that the application had been rejected and telling him that she didn't support it. That would be consistent with the actual situation at the time. But even if it was accepted that Ms Wall told Mr Khalil the application was not supported and it was accepted that she told him it was rejected, Mr Khalil stated he did not recall being told this.

120 Mr Edghill submitted that this was a statement that should be accepted as being truthful, even if Ms Wall had told him the application had been rejected there was no evidence that Mr Khalil understood or recalled that. Shortly after this meeting he moved to a new depot and had no further contact with Ms Wall on such issues a new manager, Mr Pearce, was then responsible following up these HR issues. It was submitted that the issue for the Board to consider was what was the point of Mr Khalil lying about such a difference and what was to be gained by him stating this month's difference that existed between when he was told. The reality was there was no reason for him to lie about the timing of such an event, and for those reasons his evidence must be accepted.

121 The Board was also asked to consider the manner in which Mr Khalil gave his evidence. He was certainly honest and forthright admitting to mistakes he had made and answering questions truthfully even when the answers were to his detriment. He demonstrated that he now understood the policy, understood his mistakes in his previous actions but there was no demonstration that he previous actions were deliberately dishonest.

122 Finally, in the event that the Board found that Mr Khalil had breached the Code of Conduct or the Secondary Employment policy, it was submitted that dismissal would still be too harsh in the circumstances. This case involved a person who occasionally worked as a DJ from the time that he started at RailCorp. He never hid this, freely admitted it when asked, and there was no evidence that it affected his work at RailCorp. When he was told to declare it, he did so. When he was told to stop it, he did so. He was mistaken in his understanding of the Secondary Employment policy, but he was not unreasonable in his actions. This case did not involve any kind of corrupt or questionable conduct. There was no question of conflict of interest. There was no real question of fatigue. It appeared that there was no good reason to deny the secondary employment (although this is not directly relevant to the case). There was certainly no good reason to dismiss Mr Khalil because he occasionally acted as DJ and thought that this was okay.

123 It was submitted that Mr Khalil be reinstated to his former position and location at RailCorp with full continuity of employment and full back pay.

Findings

124 This is an appeal under clause 43 of the Transport Administration (Staff) Regulation 2005 against RailCorp's decision to impose the disciplinary punishment of dismissal on Mr Khalil. Section 23(1) of the TAB Act provides that the Board may decide to allow, or disallow the appeal, or make such other decision as it thinks fit.

125 While Mr Khalil has pleaded guilty to the allegations against him Mr Edghill essentially submitted that he was not guilty of the misconduct alleged. The Board's function in this matter is therefore to determine whether the allegations made by RailCorp are in fact sustained and whether the disciplinary punishment imposed by RailCorp in relation to such allegations (notwithstanding the "guilty" plea) is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125].

126 The Board is obliged to determine the disputed issues before it on the civil standard of proof, that is, the balance of probabilities. The Board is also obliged to approach the matter in a manner consistent with the principles enunciated in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.

127 At the outset it should be indicated that the Board found Mr Khalil to be a truthful witness and his demeanour was frank and open. The Board considers that Mr Khalil genuinely believed that his DJ'ing was a hobby, a way of socialising, and even if there was some payment, that it did not constitute employment as such. Ms Wall evidently explained to him in October that it still constituted "voluntary work" and must be declared as secondary employment. However, while in cross examination he did acknowledge that he was paid on occasions there was no actual evidence about how frequently or to what extent this occurred.

128 RailCorp have placed great reliance on the internet etc., advertising and on Mr Khalil having an ABN number. The Board accepts Mr Khalil's evidence that this advertising commenced prior to his employment with RailCorp and automatically just carried on without any action/payment from him. The Board also accepts his explanation for the ABN number and that hence its relevance in relation to secondary employment declarations apparently did not occur to him. It is also noted from the registration documentation in evidence that Mr Khalil's ABN was not registered for GST which would be suggestive of the fact that it was not used for, or intended to be used for, business purposes.

129 It is also evident that Mr Khalil took action to cancel this registration on 27 September 2011 and gain this would support the submission made by Mr Edghill that he did this after he had the significance of this registration drawn to his attention through the allegations made against him by RailCorp on 18 August 2011.

130 The Board does not consider that Mr Khalil intentionally breached the Code of Conduct and the Secondary Employment and Voluntary Work Procedures in relation to his 2009 declaration. It would appear that he ought to have declared his DJ'ing but it is accepted that he had a genuine belief that it was a hobby, an opportunity for socialising and not employment. Frankly the Board would have also thought the same in the absence of any of the examples which are more fully explained in the documentation on the RailCorp Intranet (but which were not in evidence before the Board), He had made no secret of his DJ'ing activities with work colleagues. He did not attempt to hide it or deny it when he subsequently was approached by Ms Wall.

131 The Board does not consider that Mr Khalil was being dishonest in submitting this declaration and that he thought he understood the policy but did not, is clear and evident. The Board does not find it implausible in the least and cannot see that any such misunderstanding automatically means he has committed misconduct by providing a false declaration.

132 The Board considers that any reliance that RailCorp has sought to be placed on him "arguing the point" with Ms Wall is unwarranted. He was approaching the issue from the point of view of it considering to be a "hobby" not as secondary employment and it seems to the Board that was the basis for any attempt by Mr Khalil to demur from what Ms Wall was putting to him.

133 The Board considers that when the issue was brought to Mr Khalil's attention by Ms Wall he did take appropriate action to complete an appropriate application form. He can certainly be criticised for being tardy in doing so, but there is no evidence that he was told by Ms Wall that it was a serious matter likely to lead to disciplinary action which might then have spurred him on to more immediate action. Indeed on her written evidence she "encouraged" (rather than directed) him to complete an application.

134 There can be equal criticism levelled at RailCorp for slow action in having Mr Khalil's application considered, and in not advising him an any way of any delay, or advising him in any formal way as to the final outcome.

135 The Board also notes that there was no evidence that Ms Wall gave him any indication in her meeting with him on 14 October that approval of his application would depend on his absence record. Yet at that meeting she discussed his "excessive absences" with him and told him she would be reviewing that issue in January.

136 Ms Wall's written evidence was that there was a meeting arranged by her for the 23 November (via a memo issued on 12 November to that effect) to discuss Mr Khalil's secondary employment with him as he had not yet submitted a form. Unfortunately just prior to that meeting she had to go on extended leave due to a death in the family and did not return until early January 2011. She attached to her statement a memo of 24 November from Mr Murry (as Acting Depot Manager) confirming a meeting he held with Mr Khalil on 23 November and that the form had been signed off by him and forwarded to Mr Worboys the HR Business Partner for his consideration. Ms Wall said in her oral evidence that the meeting was cancelled, that Mr Murry was provided with the form on 24 November, it was forwarded and but sent back because he had not completed the relevant section (Manager's Declaration). Thus the finalisation of the application (and its rejection) did not occur after until 2 February 2011 when it was signed off as disapproved by Mr Merceica. Ms Wall had added her comments (about his absences and revisiting in 6 months) and signed off 1 February 2011.

137 There was no evidence at all from Mr Murry either oral or in writing about his involvement with Mr Khalil's application in late November.

138 The only reason the Board refers to this chain of events is due to the criticism levelled at Mr Khalil for the time he took to submit the form and the implication that this somehow confirmed his dishonesty and wrongdoing because this was to enable him to keep on with his DJ activities and avoid putting in a declaration.

139 The Board also notes that there was no evidence that the issue of his 2009 declaration was raised with him in any way during any conversations he had with Ms Wall in 2010.

140 The Board is prepared to accept the evidence of Ms Wall and Mr Murry that the issue of the non-support by Ms Wall of Mr Khalil's application was discussed in some way at the 31 January meeting. However the Board is not prepared to accept that any great time was spent on the subject, which may account for Mr Khalil being unable to recall it being discussed. He was also not aware it was going to be discussed in the first place as it was not mentioned as a topic for discussion in the 19 January memo Ms Wall issued to him about the meeting (only the operational incident and his attendance record). Mr Kahlil's focus, understandably, was on the serious operational incident of him overshooting a platform by one carriage which was addressed by Mr Murry and subject of a subsequent Crew Personnel File Note. It seems reasonable to assume that the secondary employment application was discussed in the context of his attendance record (as scheduled for discussion back in October 2010). Any memo about the outcome of the meeting that might have been written by Ms Wall was not in evidence as it did not appear to have been placed on his file. He said he did not receive any such memo and Ms Wall did not know whether he had received it.

141 The Board acknowledges that nothing really turns on this (apart from no official notification being received by Mr Khalil) and in any event he was subsequently told by Mr Pearce in March sometime after he had transferred to the InterCity Depot and completed the relevant road training for that area in February.

142 Again the Board does not consider that in all the circumstances Mr Khalil's failure to recall this discussion at the meeting of 31 January is somehow indicative of a lack of truthfulness or credibility on his part.

143 RaiCorp also contended that Mr Kahlil continued to carry out his DJ activities after he submitted his application on 24 November 2010. The Board does not consider that the evidence supports this submission. Mr Khalil said in oral evidence that someone told him not to DJ around the time he was approached by Ms Wall and he then ceased DJ'ing. There was absolutely no evidence whatsoever from either Ms Wall or Mr Murry that he had been in fact been told by either of them to cease his DJ'ing activities pending the provision of his application and its consideration. The first person who seems to have specifically told him that such activity should cease (as a consequence of his application being declined) was Mr Pearce in March 2011. This was acknowledged by Mr Khalil. The Board accepts Mr Khalil's evidence.

144 The Board does not consider that Mr Khalil was either untruthful or dishonest in his application for approval to conduct secondary employment or voluntary work through his November 2010 application.

145 The Board does not consider that the internet listings or the advertising establishes that Mr Khalil carried on with his DJ activities once it was brought to his attention that firstly, he had to declare this activity and secondly, he should stop this activity and seek approval for such through an appropriate application in late 2010. The Facebook entries all appear to concern occasions in 2010 before the issue was brought to his attention and when he did not understand that he had to declare and seek approval for such.

146 The Board accepts Mr Khalil's evidence as to the internet listings and advertising, and as indicated above found him to be a truthful and credible witness.

147 The Board accepts that when Mr Khalil made his secondary employment declaration in June 2011 he was in fact making a truthful and honest declaration and had at that time (as he had sometime in late 2010) ceased his DJ'ing activities.

148 The evidence of Mr Wood concerning the phone message does not assist the Board in any way and does not establish he was carrying out DJ activities at that time particularly in the light of Mr Khalil's evidence. If there had been any subsequent contact with Mr Khalil in which he gave information about currently carrying on DJ activities or offered such a service (particularly for payment) then that would certainly have been significant and persuasive evidence that he had not ceased his DJ'ing, but that was not the evidence before the Board.

149 What the Board does consider to be of great significance is the fact that Ms Wall, on her evidence, only declined to support his 2010 application in January 2011 because of his absence record and indicated her preparedness to review that position if he improved in six months. It follows that if his absence record had improved by the time his application was considered then she may well have supported it and it would have been approved (based on her evidence that her recommendations were usually accepted).

150 There has never been any suggestion made by RailCorp that Mr Khalil's DJ'ing activities represented a conflict of interest as was the case in Han v Rail Corporation of New South Wales [2011] NSWTAB 1 and also in Garland v RailCorp [2011] NSWTAB 27. The concern appears to have been the impact of fatigue on his driving duties. There was no evidence before the Board conclusively linking any absenteeism of Mr Khalil with his DJ'ing activities (apart from possibly a Facebook entry). This was not put to Mr Khalil in cross examination in any event.

151 The Board appreciates that the issue of Mr Khalil's declarations apparently arose as a consequence of a Google search possibly undertaken in April 2011. There was reference in RailCorp's Investigation report to a 2 May 2011 email from a Peter Spiteri, Central I/C Administrative Assistant, to Ms Kim Manderson (who subsequently forwarded the matter to the RUI) and which attached various documents (including a File Note from Stephen Pearce which was not in evidence), the rejected Secondary Employment Application and various attendance papers, TCTime History and Google results (all of which were in evidence). If the concern which prompted the subsequent investigation was the initial Google search the Board wonders why this was simply not raised with him at the local level and an explanation sought which could have been readily provided and any other relevant information could also have been sought from him.

152 The Board does not consider that there is any particular significance arising from Mr Khalil providing an identical written response to each of the three allegations raised with him by RailCorp in August 2011. The Board does not view Mr Khalil's explanation of the Union advising him to do so as demonstrating he had a "blasé attitude" towards RailCorp's procedures. He was obviously (on his evidence) seeking assistance with providing a response and in circumstances where the full facts were not known by whoever gave him that advice otherwise he might have might have been more relevantly responsive to the differing aspects of the three allegations (which were also all expressed in similar terms).

153 The Board has carefully considered the evidence and the submissions in this appeal and makes the following formal findings:

1. Mr Khalil breached RailCorp's Code of Conduct and the Secondary Employment and Voluntary Work Procedures in relation to his 2009 declaration but did not do so intentionally and was of the genuine belief that his DJ'ing activities did not fall under those procedures. His failure to understand the procedures does not itself constitute misconduct.

2. His actions in providing false and misleading information on his 2009 declaration was not intentional and whilst a technical breach did not constitute misconduct.

3. Allegation One is therefore not sustained.

4. Mr Kahlil made an appropriate and truthful declaration in November 2010. He had ceased any DJ'ing activity and he did not carry out secondary employment or voluntary work without approval. He did not commit misconduct in relation to this application.

5. Allegation two is therefore not sustained.

6. Mr Khalil did not submit a false and misleading declaration in June 2011 as he had ceased to undertake any DJ'ing activities at that time.

7. Allegation Three is therefore not sustained.

154 The Board having found that the allegations against Mr Khalil are not sustained also finds that the disciplinary punishment of dismissal in the circumstances is entirely inappropriate. Even in circumstances where there was a technical breach in relation to Allegation One, dismissal would be excessive and entirely unwarranted.

155 The Board considers that in all the circumstances Mr Khalil's appeal should be allowed and reinstatement to his former position as a Train Driver as from the date of his dismissal and with full continuity is entirely appropriate and intends to issue orders to that effect. There will clearly be a need for Mr Khalil to undertake some necessary retraining as a consequence of his absence from driving duties to enable him to resume his position as a Train Driver.

Order(s)

156 The Board makes the following orders in relation to the appeal (TAB12/118):

1. The appeal is allowed.

2. The decision of RailCorp to dismiss Mr Khalil with effect from 24 February 2012 is set aside and he is reinstated to the position of Train Driver, InterCity Depot, without loss of continuity.

3. RailCorp is to make a payment to Mr Khalil within 14 days of the date of these orders of the amount of pay, less the amount of the 4 (four) weeks paid in lieu of notice, he would have received as a Train Driver to the date of these orders but for RailCorp's decision to dismiss him.

4. Mr Khalil is to undertake such further necessary re-training as shall be provided by RailCorp to enable him to resume his position as a Train Driver. Such training to be arranged as soon as is practicable.

5. These orders take effect on and from 27 August 2012.

Elizabeth Bishop

Commissioner

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Decision last updated: 27 August 2012