Hitler salute train guard loses appeal against sacking
Vanda Carson
The Daily Telegraph
August 28, 20134:24PM
A TRAIN guard who gave a ''heil Hitler'' salute to a train driver then used his fingers to trace the letters 'SS' on the driver's back has lost his appeal against his sacking.
Kevin Byrne, 59, who worked for RailCorp for 35 years, was found to have sexually harassed driver Lee Kemp as they sat in the cabin of the train at the Chatswood "turn back" waiting for a signal change to return to Hornsby.
A second incident of inappropriate behaviour, the salute, occurred on platform one of Hornsby railway station.
Byrne was sacked on July 15, 2011, for breaching the RailCorp code of conduct. His sacking came a year after the two incidents of inappropriate behaviour occurred on July 10, 2010.
Byrne was found to have stood beside Mr Kemp on Hornsby station and made a 'Nazi' style salute while saying"Heil Hitler" and to have told Mr Kemp that he looked "good" in his uniform.
"You look like a German Police Officer. Heil Hitler!" Byrne said.
The hearing heard Byrne then stood behind Mr Kemp and traced the letters 'SS' with his finger on Mr Kemp's back.
Byrne was found to have again harassed Mr Kemp about 40 minutes later in the driver's cabin by twirling his hair between his fingers and saying to him, "don't tell anyone will you".
He then massaged Mr Kemp's shoulders and back while asking him "Are you gay or bisexual?".
Byrne then boasted "I can still c** twice a day even at my age."
"All men would have bisexual tendencies, you can't say that if a guy saw another guy on the street he wouldn't think to himself that he is good looking," Byrne told him.
When Byrne began rubbing Mr Kemp's arm, Mr Kemp told him to stop.
"Oh it's ok, people should love and respect each other." Byrne told him.
As Byrne continued to rub Mr Kemp's arm he said: "Women say that I'm good with my tongue and men say I'm good with my mouth."
Then he put his hand down the back of Mr Kemp's trousers.
As Byrne left the driver's cabin at Chatswood station he kissed Mr Kemp on the right cheek.
Mr Kemp said he was so shocked by Byrne's sleazy behaviour that he didn't know what he should do.
On Tuesday Commissioner John Stanton of the Transport Appeals Board (TAB) ruled that Byrne should not get his job back.
"The Board finds the penalty determined by RailCorp was the appropriate punishment," Commissioner Stanton said in his decision.
"(Byrne's) conduct was intentional conduct and in no way could that conduct be deemed a simple or honest mistake," he said.
The appeal was the second time Byrnes has taken his fight for reinstatement to the TAB.
He lost his first case last year but after he appealed to a Full Bench of the NSW Industrial Relations Commission his case was sent back to the TAB for re-determination.
On both occasions before the TAB Byrnes pleaded not guilty to the allegations.
