In Stuart Thomas Walsham v Fire & Rescue NSW [2025] NSWIRComm 1109 (16 December 2025) (Commissioner McRobert) the Industrial Relations Commission had to consider an unfair dismissal application lodged by former retained firefighter Mr Walsham.

Mr Walsham had been employed as an on call retained firefighter from 1984 until his dismissal in 2025. At the time of his dismissal, he was a ‘co-captain’ of the Teralba Fire Station, near Newcastle. He was dismissed following convictions for various domestic violence offences against his ex-wife and adult sons; but the issue was complicated by previous dealings with Fire and Rescue NSW. 

Commissioner McRobert said (at [8]-[9]):

The Applicant’s employment was terminated for misconduct on the basis that he had been found guilty and convicted of serious criminal offences. Under clause 37(1) of the Fire Brigades Regulation 2014 (“2014 Regulation”), a “serious offence” is defined as a criminal offence punishable by imprisonment for 12 months or more. Part 7 of the Fire and Rescue NSW Procedural Guidelines for the Management of Serious Offences (Part 2, 2024) (“Procedural Guidelines”) provides that an employee who is found guilty of a serious criminal offence is deemed to have engaged in misconduct. Accordingly, the Applicant’s conduct constitutes misconduct for the purposes of the Procedural Guidelines.

The 2014 Regulation was superseded by the Fire and Rescue NSW Regulation 2023 (“2023 Regulation”). Clause 34(1) of the 2023 Regulation adopts the same definition at section 36(3)(a), namely that a “serious offence” is a criminal offence punishable by imprisonment for 12 months or more.

The issue was not whether or not Mr Walsham’s conduct was ‘misconduct’ (it was) but whether the action of terminating his employment was harsh, unjust or unreasonable.

The situation was complicated by the fact that Fire and Rescue NSW had previously taken disciplinary action against Mr Walsham and demoted him from captain to retained firefighter ([29]). Mr Walsham had appealed that decision. Before the Industrial Relations Commission (at [30]-[33]):

At [108], Commissioner Murphy was highly critical of FRNSW management for failing to “adequately support the appellant in dealing with two recalcitrant Deputy Captains over an extended period of time when the appellant’s lawful and reasonable directives to both men … were blatantly ignored.”

At [114], the Commissioner described the behaviour of the two Deputy Captains as “indefensible insubordination” and the failure of the Respondent to intervene in the face of insubordination was “perverse”.

Although the Applicant was found at [112] to have engaged in misconduct, the Commissioner observed “significant mitigating circumstances … giving context to the frustrating circumstances in which he found himself, that had been building up for a number of years due to the failure on the part of FRNSW management to take decisive and effective action to ensure that the two Deputy Captains … complied with the lawful and reasonable directions of the appellant and displayed towards him the respect to which his rank as Captain was entitled.”

The Commission ordered reinstatement to the rank and position of Captain. However, by that time, the Respondent had promoted Mr Goodbun, one of the “recalcitrant Deputy Captains” while the appeal was ongoing. Instead, the Respondent placed the Applicant in a “co‑Captain” arrangement, a position not contemplated by the Retained Award.

There was no other example of a ‘co-captain’ position and not surprisingly, given Mr Walsham was now co-captain with a person who had previously engaged in “indefensible insubordination”, the situation did not work out well (see [89]).  Commissioner McRobert said (at [85]-[87]):

… In that matter, Commissioner Murphy reinstated the Applicant as Captain and criticised Fire and Rescue NSW management for failing to address insubordination by Deputy Captains. Although misconduct was found, significant mitigating circumstances were identified. This history is relevant and demonstrates systemic management failures and the Respondent’s non-compliance with its obligation to reinstate the Applicant to his substantive position following Commissioner Murphy’s orders. The co-Captain arrangement materially altered the status quo ante. Consistent with the High Court’s reasoning in Blackadder v Ramsey Butchering Services Pty Ltd(2005) 221 CLR 539, reinstatement requires restoration of the actual pre-dismissal position and working relationship, not a modified or diminished role.

Reinstatement requires restoration to the substantive position without reduction in rank, duties, authority or entitlements. The “co-Captain” arrangement adopted by the Respondent is not contemplated by the Retained Firefighters Award and was inconsistent with the Commission’s order. The Award does not contemplate dual command at the Captain level. The Respondent’s decision to promote Deputy Captain Goodbun while the appeal was pending created immediate conflict and operational tension. Any such difficulties should have been resolved in accordance with the Award and the Commission’s order following the 2021 IRC decision.

During the disciplinary interview on 19 March 2025, Ms Barlow stated: “The problem was the IRC ruled you back to work. It was unprecedented.” This indicates the Respondent did not expect reinstatement and presumably acted on that assumption by promoting Deputy Captain Goodbun while the PSD appeal was ongoing. That decision, and the appointment of the Applicant as co-captain and not Captain in accordance with an order of this Commission contributed to workplace conflict and is relevant to the assessment of fairness.

In short, FRNSW demoted Mr Walsham and did not anticipate his reinstatement and then failed to give effect to those orders which made the situation worse.  The applicant argued that the disciplinary proceedings that then followed his convictions were already pre-determined; that is FRNSW was not going to give him a real opportunity to address why he should not be dismissed as they had already made up their mind ([51]).

Another issue was that in the letters directed to the applicant asking him to respond to the allegations of misconduct and whether termination of employment was justified, FRNSW made many mistakes confusing the applicant and making his response difficult. 

In deciding an application for unfair dismissal the tribunal has to consider whether the action was harsh, unjust or unreasonable. Each factor must be considered. With respect to whether the decision to dismission Mr Walsham was ‘unjust or unreasonable’ the Commission said (at [102]);

The Applicant accepted that his guilty pleas and conviction amounted to misconduct for the purposes of the 2023 Regulation… It is therefore established that misconduct occurred. In those circumstances, I am not satisfied that the termination was unjust or unreasonable within the meaning of s 84 of the IR Act. The remaining question is whether dismissal was a proportionate penalty.

The Tribunal did find that, given his long service and his commitment to Fire and Rescue the decision was ‘harsh’. At [106] the Commission said;

The Applicant’s disciplinary history includes demotion and subsequent successful public sector disciplinary appeal in 2021. The Respondent did not fully implement that order, instead creating what is an apparently unprecedented co-Captain arrangement and imposing a performance plan. Despite these circumstances, the Applicant continued to serve, demonstrating persistence and commitment.

He continued (at [109]-[114]):

Having considered all relevant factors, including the Applicant’s long service, the factual context of the offending, and operational difficulties following the creation of the co-Captain arrangement, I am satisfied that dismissal was not a proportionate response. There is no evidence that the conduct affected work performance or posed an ongoing workplace risk. Taken together, these circumstances demonstrate that termination was excessive in light of the gravity of the misconduct and therefore harsh within the meaning of s 84 of the IR Act.

Harshness may arise where the consequences of termination are disproportionate to the gravity of the conduct. Conduct outside of work warrants disciplinary action only where there is a sufficient nexus to employment, such as serious damage to the employment relationship or incompatibility with duties or when he [sic]

I have considered that the termination was based on convictions for common assault and contravention of an Apprehended Domestic Violence Order. These offences occurred in a domestic context and were unrelated to the performance of duties, but they are relevant because the Applicant held a leadership role requiring public confidence and adherence to the Code of Conduct.

I have also considered the Respondent’s failure to comply with the earlier reinstatement order, the creation of what appears to have been an unprecedented arrangement, and the promotion of an officer previously criticised for failing to follow lawful directions. These decisions contributed to workplace conflict and undermined stability. The evidence does not show that alternatives such as suspension or demotion were properly considered.

While the convictions constitute misconduct, I am satisfied that undue weight was given to the applicant’s conduct history without proper regard to its context, including the findings of Commissioner Murphy in the 2021 IRC Decision. The termination letter emphasised “overall conduct and performance history,” including post-reinstatement conflict, and relied on these matters alongside the convictions without giving sufficient weight to the circumstances of the offending and the significant mitigating factors. The respondent’s approach to reinstatement following the 2021 IRC Decision is a factor I have considered in assessing overall fairness. The evidence indicates that reinstatement was not implemented in the manner contemplated by the Commission’s order.

On balance, and having regard to all the circumstances, I am satisfied, for the reasons set out above, that the termination was harsh within the meaning of s 84 of the IR Act.

The remedy however was not an order reinstating Mr Walsham to his position. The Commission said (at [115]-[119])

The Respondent submitted that reinstatement is impracticable because of entrenched conflict at Teralba Station and a breakdown of trust between the applicant and the current captain. The applicant’s own evidence of difficulties with other staff and his description of the co- captain as a bully support that conclusion. I accept that these matters demonstrate a lack of trust and a high likelihood of renewed conflict if the applicant were to return.

I raised concern during oral submissions that reinstatement would return the applicant to an unsafe workplace, given his evidence of significant interpersonal conflict and mental health impacts. The applicant relied upon a recent Medical certificate that recorded anxiety and depression linked to work-related stress. The applicant’s representative acknowledged that this was a serious concern.

The applicant accepted that the co-captaincy was problematic, creating operational uncertainty, and conceded dysfunction would likely continue unless the other captain changed. He described the captain as a bully, asserted vexatious complaints, and agreed he did not trust him. His continued complaints during suspension underscore the persistence of these difficulties.

The conflict is longstanding and unlikely to be resolved in a way that permits a workable relationship. This remains so notwithstanding that some disharmony, including that arising from the applicant’s appointment as co-captain following the 2021 IRC decision, was not of his making. I have also considered medical evidence of anxiety and depression linked to work-related stress. It is relevant that senior officers stated there has been no industrial conflict since the applicant’s absence. Impracticability requires more than managerial reluctance; it must be based on a rationally founded breakdown of trust such that a viable employment relationship cannot reasonably be restored.

Given that reinstatement was not practicable, FRNSW was orders to pay compensation of 8 weeks pay ([124]).

Discussion

This case does not reflect well on FRNSW.  They terminated Mr Walsham’s appointment as a brigade captain but failed to anticipate that he might succeed in his appeal. They appointed one of the very people he had been in dispute with as captain so that when he was successful, he was put into a position that did not exist – a co-captain. This was not giving full effect to the Commission’s orders and inevitably led to more conflict.  At [51] the Commission said ‘The applicant states that these actions caused significant psychological harm, including depression and anxiety, and contributed to the breakdown of his marriage and family relationships’ and it was in this context that the offences occurred. 

In the circumstances paying 8 weeks’ pay is probably a cheap outcome for FRNSW to resolve significant dysfunctional arrangements at this particular fire station.

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