One of the most dispiriting sets of decisions which are now published on the internet is the decisions of the NSW Transport Appeals Board. The latest is Khalil v RailCorp  NSWTAB 25.
Mr Khalil joined Railcorp as a customer service attendant in 2004. In 2005 he became a train guard and in 2008 he became a train driver. That’s a career in Railcorp.
Mr Khalil had been working as a DJ since 1996. At some stage he obtained an ABN (which got him more favourable terms for purchase of equipment and a mobile phone) under the name of ‘A Mobile DJ 4U.’ He placed some advertisements in this name. He said he used to DJ about once a month.
From 2005, Mr Khalil’s depot manager was Shelley Wall. She got to hear of his DJ work, and she said that at least by about August 2010 she was aware of it, because she mentioned to Mr Khalil that if he wanted to do any outside work or voluntary activity he needed to obtain approval for this from Railcorp. Mr Khalil, she said, “argued the point” about this because he was of the view that it was just a hobby.
In fact, Ms Wall had other concerns about Mr Khalil. She was not happy about his absentee record.
Ms Wall had a meeting with Mr Khalil on 14 October 2010 to discuss his excessive absences which were to be reviewed again in January 2011. At this stage she also returned to the topic of the outside employment and told him he needed to submit an application for approval of that. On 12 November 2010, she sent him a memo about that because he had not yet submitted an application for approval of his DJ-ing activity.
After that, Mr Khalil submitted a form for approval of his DJ activities. He said in that:
“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”
There was to be a meeting about that in November but it did not occur as Ms Wall’s mother died and she took three and a half weeks off at this time.
The application was supposed to have been dealt with by another manager in Ms Wall’s absence but it came back to her on her return to work as the other manager had not filled in the relevant section as to whether or not he supported the application.
Ms Wall was of the view that she would not support the application. Mr Khalil would need to improve his absentee record before she would support it. If she didn’t support it, it was unlikely to be approved.
On 5 January 2011 Mr Khalil was involved in a safety-related incident when the train he was driving overshot the platform by one carriage.
On 19 January 2011 Ms Wall issued a memo to Mr Khalil advising him of a scheduled meeting on 31 January 2011 to discuss that incident and his attendance record. At the meeting, she told him that she would not be supporting his application to do external DJ work but would revisit the position again in six months if his absentee record improved. After the meeting, she signed off on the form, not supporting the application.
Early in February, the relevant manager did not approve the application, though it is unclear whether Mr Khalil ever received any formal notification of this (he said he did not). By then Mr Khalil had transferred to work as an Intercity driver and his new manager told him in March that he was not permitted to DJ. Mr Khalil said he accepted that and that he did not work as a DJ after that.
But somewhere, for some reason, someone was checking up on Mr Khalil. 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. The investigator found advertisements on the internet and various pictures of him DJ-ing in 2010. An investigator rang up the phone number on one of the advertisements, which was Mr Khalil’s parents’ house (he had since moved out of home, married and had children). Mr Khalil returned the call and left a message, saying “It’s the DJ.” Shelley Wall confirmed that the voice was Mr Khalil’s.
On 18 August 2011 the investigator wrote to Mr Khalil notifying him of three infractions of the code of conduct, namely:
(1) That in 2009 he failed to disclose his work as a DJ in his secondary employment disclosure form, and that he did such work without prior written approval.
(2) That despite being told after submitting his 2010 application that he was not permitted to work as a DJ, he continued to work as a DJ without prior written approval.
(3) That he dishonestly failed to disclose in his June 2011 disclosure form that he was still working as a DJ and has done so without prior written approval.
The third count was based on the (specious, I would have thought) argument that a requirement to disclose involvement even in “inactive companies” extended to a requirement to disclose an ABN registration, even if no business was being conducted.
Mr Khalil submitted a response. He was offered an interview which he did not participate in. The investigator concluded that the allegations were not substantiated. They were forwarded to the Disciplinary Review Panel which on 12 December 2011 recommended that Mr Khalil be dismissed. Mr Khalil’s solicitors then made some submissions and the investigator conducted further investigations and confirmed his earlier recommendation. In January 2012 the DRP confirmed its recommendation and in February 2012, Mr Khalil was dismissed with 4 weeks pay in lieu of notice.
Mr Khalil appealed. There were hearings in June. At them Railcorp argued that Mr Khalil:
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.
These are all based on requirements set out in the Code of Conduct. At face value that seems to suggest that if you only achieve mediocre levels of acceptable behaviour you are breaking the code and can potentially be dismissed. In fact it all really had to come down to mr Khalil’s honesty or not in not disclosing and undertaking external work. It’s certainly hard to see where the allegations amount to any failure to use Railcorp resources properly, efficiently and economically, or use of authority.
The appeal was successful. The board accepted that the advertisements were old (which would certainly seem to be borne out by the fact that the number on one was Mr Khalil’s parents) and that Mr Khalil had not worked as a DJ since late 2010. It held that none of the disciplinary infractions were made good, or at most that the first one (in relation to 2009) was, but only technically and not in a way amounting to dishonesty, and that dismissal was entirely inappropriate. The board ordered that Mr Khalil be reinstated with continuity and that he be paid 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 the orders but for RailCorp’s decision to dismiss him.
There is a lot of grumbling from the government from time to time about the industrial situation in Railcorp and the government bus service, but if this is the way that Railcorp treats its employees, it is absolutely understandable that there might be a bit of work-to-rule in response.
To me there is something quite tyrannous about Ms Wall’s use of the carrot/stick in relation to permitting outside employment of a most occasional nature as a means of bringing about an improvement in Mr Khalil’s attendance record. As the board said (at ):
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.
Ms Wall has moved on from that job, but at her Linkedin profile she says of her time there:
Drove and maintained staff absences to a level substantially below corporate averages by developing continuous monitoring and management processes leveraging human contact and genuine concern.
I love those words: “drove” and “leveraging.”
Cases like this put the NSW government’s enthusiasm to ensure that not only train guards and station attendants (who do come face to face with the travelling public) but also train drivers (who do not) should front up to work devoid of stubble into not very flattering context.
PS: after going to all this trouble I see there is a punchier report of this case in the Daily Telegraph. It’s not strictly accurate, since it treats the decision as one permitting Mr Khalil to keep his second job as a DJ, though that could be its practical effect if he chooses to apply for approval again. Then again, in my experience you can’t expect organisations like Railcorp to respond to such decisions with good grace. My advice to Mr Khalil: watch your back!
PPS: A good job by Brendan Edghill, organiser with the union, and a reminder of why it’s a good idea to belong to one, especially if you work for Railcorp.