In A v Fire and Rescue NSW  NSWIRComm 1039 (31 May 2018) Commissioner Stanton in the Industrial Relations Commission set aside a decision of the Fire and Rescue NSW Commissioner to demote a station officer to the rank of senior firefighter for one year. Instead the firefighter was fined $5200 and warned that any further misconduct could result in his dismissal.
In this determination the Commission used initials rather than names.
Station Officer A had worked for FRNSW for about 20 years, 10 of those as a station officer. He was going through a difficult divorce with allegations and counter-allegations of inappropriate conduct. A’s brother, B was (and presumably is) a serving officer with NSW Police.
On 1 January 2015 a victim of domestic violence sought refuge at the fire station where A worked, and police were called. The evidence of Senior Constable H was that he asked Station Officer A ‘how Mr A’s brother was going as he had recently sustained an injury when working with the weapons unit’ . A then raised a number of allegations against various members of the police including that the local area commander was falsely deleting data from the police computer records; that another officer was involved with his, A’s, wife; that these two officers were about to be charged with criminal offences; and another police officer had been involved in fabricating evidence. It is not necessary to detail the allegations.
Senior Constable H recorded and reported these conversations and they were in due course reported to the Local Area Commander who was, himself, the subject of one of the accusations. Various matters were reported to and investigated by the Police Integrity Commission. A denied that the conversations ever took place, but the investigator appointed by Fire and Rescue NSW was satisfied that they did take place, as was Commissioner Stanton (at ). Commissioner Stanton described the allegations made by A as ‘malicious’ ().
There can be no doubt that the separation with his wife was painful and complex. Mr A ‘was arrested and held at a local police station for breach of an AVO. However, he was later released without charge’ . Further A was subject to an interim apprehended violence order that was later withdrawn (). Even so, whatever may have been A’s belief, it can be inferred that there was no substance to the allegations of police impropriety toward him.
The Commissioner purported to take disciplinary action against A for breach of the Fire and Rescue NSW Code of Conduct. The investigator appointed by the Commissioner determined (at ) that ‘Mr A had breached clause 15(2) (b) of the Fraud and Corruption Prevention Policy on the grounds that he had wilfully or negligently made a false or misleading statement’ when raising the allegations with Senior Constable H. Further he ‘considered Mr A had also breached clause 17(1)(g) of the Fraud and Corruption Prevention Policy by behaving in a manner that a reasonable person would consider could bring discredit upon the FRNSW’.
At the conclusion of the disciplinary process the Commissioner of Fire and Rescue NSW wrote to A and said:
Pursuant to Clause 35 (2) of Fire Brigades Regulation 2014, I have decided to take this action. I have determined you will be demoted from the rank of Station Officer to the rank of Senior Firefighter from period of 12 months… At the conclusion of the 12 months you will be reinstated the rank of Station Officer subject to the maintenance of appropriate standards of behaviour during the period of demotion. You will be found position in Zone WW during and after the demotion.
As a Station Officer, the manner in which you conduct yourself by your words and actions are a reflection of your professionalism, integrity and the position of leadership you hold. It is of paramount importance that you set an example for other Firefighters, by ensuring you uphold professional and ethical standards and core values of FRNSW at all times, and that you demonstrate this in your dealings with other organisations and the public.
A appealed to the Industrial Relations Commission.
The appellant’s case
During the hearing, A called a number of firefighter witnesses who confirmed that whilst at work he had been professional in his dealings with police. This is of course important in firefighting as police and FRNSW will nearly always attend fires and have to work together. There was also evidence that A had sought to be stationed away from the Local Area Command ( and ) where the police he had complained about worked. There had been no complaint about his work at this alternative station.
The Commission’s Decision
The appeal to the Commission is a hearing de novo () (‘de novo’, ie “starting from the beginning; anew”) that is the Commission is not there to simply review the Fire Brigade Commissioner’s decision and determine whether the decision was made according to law. Rather the Industrial Relations Commission hears the complaint ‘anew’ and can determine whether it is made out and exercise all the powers that the FRNSW Commissioner could have exercised.
Mr A argued that in the conduct of the disciplinary proceedings he had been denied procedural fairness. That complaint was rejected at :
I consider Mr A had a very clear understanding of the allegations put against him. They were short, sharp, specific and precise. That said, Mr A’s plea that he was denied procedural fairness must fail in circumstances where he understood the allegations and was afforded sufficient time to consider them properly before drafting his response.
Further the Commission agreed that in the circumstances where a FRNSW Station Officer raises malicious and unfounded allegations about police with other police officers that represented a breach of the FRNSW Code of Conduct provisions on ‘Respect for People’ and the Fraud and Corruption Prevention Policy: ‘the decision of the Commissioner to impose a disciplinary sanction on Mr A was not in error’ ().
The penalty was, however, excessive. Commissioner Stanton said (at -):
… it is very apparent on the material before the Commission that Mr A has been deeply affected by the events surrounding his marriage break up and the fact that as a single parent, he is trying to look after his children when the opportunity arises to the best of his ability.
By way of further observation, it is also apparent that the litigation treadmill concerning this matter and others referred to in proceedings has cost him dearly. That is not to say that the Commission by any means sanctions the alleged conduct of Mr A. Quite the opposite.
Mr A has been working at a Fire Station other than his substantive Fire Station for a period of time. His evidence was that he is happy to be working there and away from the stress related to his previous Fire Station and LAC. There was no evidence pressed by FRNSW to the contrary.
In determining this appeal, I have paid particular regard to the expected financial impact of the demotion on Mr A and his family in the context of a protective rather than a punitive jurisdiction. I consider the demotion for a period of 12 months is too harsh when viewed against Mr A’s personal circumstances. I have also considered the responsibilities upon FRNSW officers and the policies raised in proceedings concerning mandatory employee compliance obligations.
Mr A needs to clearly understand that when on duty, he is on duty as a representative of FRNSW and when the police came to the Fire Station to interview him about the domestic violence incident, he had no right to raise malicious allegations that have the capacity to cause reputational damage to FRNSW. Any further disciplinary issues could result in dismissal. While Mr B believed in his own mind that the allegations were true, there was no evidence to support that proposition.
The Commission upheld the appeal and ordered (at ):
… that the [decision that the] appellant be demoted from Station Officer to Senior Firefighter with effect from 17 June 2016 is quashed and in lieu thereof, Mr A shall receive a reprimand and a fine of $5200…
Determining how to deal with people who have committed an offence, whether it is an offence against the criminal law (see No gaol time for defendants who assaulted Victorian Paramedic (May 18, 2018)) or internal codes is difficult and complex. An essential element is that the decision maker focus on the individual and his or her circumstances. The time between the offending and the determination of punishment allows a person to show whether they are at risk of further offending. In this case the actions of A in getting work at a fire station outside the relevant Local Area Command along with support from other fire fighters to his professional approach at work and his professional approach to police no doubt helped.
The primary lesson, if there is one, for firefighters is to recognise that statements made when in uniform and at work reflect on them as firefighters and on FRNSW. The allegations made by A to Senior Constable H were not ‘off the record’ or informal conversations. They were made to police and it was incumbent upon them to report them and deal with them. In this case they were without substance and it reflected adversely on FRNSW that they were made by a FRNSW station officer. The Industrial Relations Commission agreed with the FRNSW Commissioner “that when on duty, he is on duty as a representative of FRNSW and when the police came to the Fire Station to interview him about the domestic violence incident, he had no right to raise malicious allegations that have the capacity to cause reputational damage to FRNSW”.
The other lesson is that decisions can be subject to review. It is important that all the factors relevant to both the offending and the offender are taking into account when determining the relevant punishment.