Fire Brigade Employees' Union of New South Wales (on behalf of Wayne Challinor) v Fire and Rescue NSW

Union Representations

1. The Union made formal representations on Captain Challinor's behalf to Mr Greg Mullins AFSM, Commissioner on 11 May 2015. The detail of those representations, formally set out in the evidence of Mr Maniatis, stated Captain Challinor's comments should not be construed to be controversial, subversive or partisan or, constitute endorsement of a political candidate. A common sense approach should be adopted.
2. The Union also confirmed that it had directed Captain Challinor not to respond to the allegations formally put to him in correspondence dated 28 April 2015 by the Workplace Standards Branch.

Allegations Sustained

1. In correspondence dated 10 June 2015, Acting Commissioner Smith determined that the allegations against Captain Challinor were sustained. Captain Challinor had engaged in misconduct in breach of Regulation 2014 and the Code of Conduct.

Disciplinary Penalty

1. Clause 35 of Regulation 2014 provides that where the Commissioner has determined that a firefighter may have engaged in any misconduct, disciplinary action ranging from a caution or reprimand to termination of appointment may be taken. The disciplinary action ultimately taken by Acting Commissioner Smith against Captain Challinor was a reprimand.
2. Captain Challinor was formally advised of the proposed disciplinary action to reprimand him in correspondence dated 8 July 2015.
3. The Union considered the investigation undertaken by Fire and Rescue, the subsequent finding of misconduct and the disciplinary action of a reprimand was a clear contravention of what it described as the specific statutory protection concerning freedom from victimisation embodied in s 210(1)(h) of the Act: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: … (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties); …

The Investigation

1. The Investigation Report compiled by the Workplace Standards was attached to the amended application filed on 7 August 2015. The Executive Summary noted the following:

• The allegations of misconduct by Captain Challinor relate to his appearance in an election pamphlet in support of Mr Chris Minns, Labor Candidate for Kogarah in the March 2015 state election.
• The investigation confirmed Captain Challinor's misconduct was in breach of Regulation 2014 and the Code of Conduct. It also contravened the 'Caretaker' Conventions and Other Pre-Election Practices 2015 General State Election.
• Captain Challinor commenced employment with the NSW Fire Brigade as a retained fire fighter with Bulli Fire Brigade in June 1994. He was transferred to Mortdale and promoted to the rank of Captain in August 1997.
• Captain Challinor appears to have commenced full time permanent employment with the then NSW Fire Brigards as a Human Resources Manager in February 1993. Captain Challinor worked in a number of HR related roles, including in Workforce Policy and Planning for some time before leaving Fire and Rescue to work for the Department of Premiers and Cabinet on 1 July 2011.
• Captain Challinor was on long service leave from 7 January to 6 April 2015.
• The pamphlet issue was referred to Workplace Standards in March 2015. Captain Challinor's conduct was alleged to constitute misconduct and was subsequently the subject of a formal investigation in accordance with the Procedural Guidelines for the Management of Conduct Fire Brigades Regulation 2014 contained in Part 4 of Regulation 2014.

1. The Executive Summary also set out the relevant legislation, policies and findings relied upon by Fire and Rescue: Regulation 2014 14. Firefighters to acquire and maintain knowledge of legislation, orders and functions (1) A firefighter must acquire and maintain a thorough knowledge of, and must comply with the requirements of, the Act, this Regulation and the Commissioner's Orders. … 34. Issuing of procedural guidelines (1) The Commissioner may, from time to time, issue guidelines for the purposes of: (a) dealing with allegations of misconduct against firefighters as a disciplinary matter, and (b) the taking of disciplinary action with respect to firefighters under this Part, and (c) any other matter referred to in this Part. … Procedural Guidelines for the Management of Conduct 2014 The Procedural Guidelines describe misconduct as including a contravention of any provision of Regulation 2014 or engaging in, or having engaged in, any conduct that justifies the taking of disciplinary action e.g. conduct that may be contrary to the provisions of Regulation 2014, the Code of Conduct and/or other established policies of the Service. If an employee identifies any potential conflict of interest, real or apparent, they should immediately raise it with their manager and, if necessary, more senior managers. If a conflict does arise, the employee may have to stop participating in the political activity or withdraw from areas giving rise to the conflict. Section 10.6 - Misconduct Proven - remedial action states the decision-maker may consider remedial action ranging from counselling, the implementation of a performance management plan, a warning or transfer. Section 10.7 - Misconduct Proven - disciplinary action provides the decision-maker may consider: * A caution or reprimand; * The imposition of a fine; * Reduction of the employee's salary or demotion to a lower position; * Directing the employee to resign, or to be allowed to resign within a specified period; and/or * Dismissal. Code of Conduct At page 11, the Code of Conduct states: Political Participation Employees must ensure that participation in political matters does not conflict with their primary duty as a public sector employee to serve the government of the day in a politically neutral manner. If an employee identifies any potential conflict of interest, real or apparent, they should immediately raise it with the manager and, if necessary, more senior managers. If a conflict does arise, the employee may have to stop participating in the political activity or withdraw from areas giving rise to the conflict. Findings Allegation 1 It is clear Captain Challinor's appearance on the flyer is intended - at least by Chris Minns and his staff - to be a statement in support of his candidature. The page on the flyer containing Captain Challinor's comments is headed "We're supporting Chris Minns". As such, the average reader would reasonably view Captain Challinor's appearance and comments on the flyer to be a show of support for Chris Minns. To conclude that Captain Challinor's appearance on the flyer does not constitute endorsement of a political candidate would be erroneous. Allegation sustained. Allegation 2 The Code of Conduct requires employees to - at all times - ensure participation in political matters does not conflict with their obligation as a public sector employee to serve the government of the day in a politically neutral manner. For the reasons outlined above, Captain Challinor's support of Chris Minns by his appearance in the flyer is in breach of that requirement. Therefore, having regard to that ongoing requirement, it is submitted that a 'common sense' judgment of the situation supports the conclusion that Captain Challinor's appearance on the election promotional flyer also contravened the Caretaker Convention. Allegation sustained. Allegation 3 Captain Challinor was on long service leave between 7 January and 6 April 2015 but there have been no submissions to the effect that he was unaware of his obligations under the Caretaker Conventions and/or the Code of Conduct. At the very least, Captain Challinor would have received the Commissioner's email of 9 December 2014 before he took leave. In any event, as Station Commander, Captain Challinor ought to have been aware and up to date of the obligations upon him, and had a responsibility to lead by example. Allegation sustained.

Question for determination by the Commission

1. The question for determination by the Commission pressed by the Union is relevantly whether or not the disciplinary action taken against Captain Challinor "because he engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties)" amounts to victimisation contrary to s 210 of the Act.
2. The factual matrix concerning the election pamphlet, the Commissioner's email in December 2014 advising that the caretaker period and employee responsibilities therein for all government agencies would commence on 6 March 2015, the subsequent "Commissioner's Corner" internal circular, the Memorandum dated 16 March 2015 from Acting Captain Allan sent to Mortdale Firefighters concerning the Caretaker Convention and, a specific email headed, "Requirements leading up to State Election", dated 23 March 2015 to all staff from the Commissioner dealing with engaging in political activity at work was not in contention. That material was conveniently set out in the evidentiary material filed by both Mr Maniatis and the Assistant Commissioner.

Mr George Maniatis

1. Mr Maniatis was not required for cross-examination.
2. Mr Maniatis confirmed the Union sought relief from victimisation in the form of an order pursuant to s 213 of the Act.
3. Mr Maniatis' affidavit set out the history of the matter which ultimately caused Fire and Rescue to issue Captain Challinor with a formal reprimand. That history included reference to the various correspondence relied upon by Fire and Rescue in determining that Captain Challinor had engaged in misconduct in breach of Regulation 2014 and the Code of Conduct.
4. In correspondence dated 28 April 2015, Fire and Rescue formally advised Captain Challinor that Workplace Standards had decided that the allegations (referred to above in paragraph 7) should be investigated. The Union wrote to the Commissioner in relation to the allegations on 11 May 2015 in the following terms: The Union is of the opinion that Retained Cpt Challinor's statement should be taken as it was intended, that is simple commentary by an ex-work colleague. The Union fails to understand how Retained Cpt Challinor's comments about Christopher Minns could be construed to be controversial, subversive or partisan. Retained Cpt Challinor has stated that Christopher Minns attended many fires, that he cares about his community and is committed to public service. The statement is a mixture of facts and opinion. They do not constitute endorsement of a political candidate. As stated in the Caretaker Conventions and Other pre-election practices at page 4, "The caretaker conventions are not black-letter law, and their application to individual cases requires judgment and common sense". The Union is requesting that the Department use common sense in this individual case and not proceed any further with the allegation of misconduct against Retained Cpt Challinor. In any event, the Union will be directing Retained Cpt Challinor not to respond to the allegations contained in the letter dated 28 April 2015.
5. Following advice on 10 June 2015 that the allegations against Captain Challinor had been sustained, the Union wrote to the Acting Commissioner on 24 June 2015 stating the investigation and subsequent finding of misconduct "clearly contravened the Freedom from Victimisation provisions" of the Act. Accordingly, the proceedings against Captain Challinor should be terminated by no later than 29 June 2015 and all records should be deleted from his Fire and Rescue records.
6. Workplace Standards advised the Union on 30 June 2015 that the abovementioned correspondence concerning victimisation would be provided to the Assistant Commissioner for his consideration as part of the final decision making stage of the disciplinary process. That correspondence was also noted.
7. Fire and Rescue wrote to the Union by email on 1 July 2015 stating that the terms of Regulation 2014 as it relates to discipline had been agreed by both parties. It also advised the Union that "notifications to the IRC should not interfere with 'due process' under the Regulation". The Union subsequently replied on 3 July 2015: We will not be making a submission in mitigation of penalty before our s.213 application is concluded. The request of 30 June therefore stands. Your revisionism regarding the Regulation is unhelpful. The terms of the Regulation's disciplinary provisions were not agreed - many were imposed by the IRC. In doing so, however, Boland J found that we could list at any stage during a disciplinary proceeding: para 92 of his decision: "As I have earlier stated, the FBEU may bring a matter to the Commission at any stage of the disciplinary process."
8. The Acting Commissioner wrote to Captain Challinor on 10 July 2015 to advise that the Fire and Rescue had decided to take disciplinary action against him in the form of a reprimand.

Deputy Commissioner Smith

1. The Deputy Commissioner sought to rely on the Caretaker Conventions for the 2015 General New South Wales State Election that commenced on 6 March 2015. In that regard, Clause 3.7 of the Caretaker Conventions dealt specifically with public sector employee participation in political activities: 3.7 Non-participation in political activities In accordance with usual practice, senior agency officials who are required to comment publicly on official matters should confine their responses to factual information. The expression of opinions on policies, decisions or proposals should be avoided. This applies at all times, but especially in the pre-election period. Public sector employees (other than Ministerial Office staff) must never engage in activities of a party political nature whilst on duty. Employees should have regard to their agency's code of conduct in relation to any political activities undertaken when not on duty. The general rule is that employees must ensure that any participation in party political activities in their private time does not conflict with their primary duty as a public employee - of serving the government of the day in a politically neutral manner. They must also ensure that when speaking on political matters whilst not on duty, they are not identified in any way as acting or speaking in their capacity as a public sector employee.
2. The requirements of employees under the Caretaker Conventions were also the subject of an "all employees" email notification sent by Commissioner Mullins dated 9 December 2014. That email stated in part: The pre-election period commenced on 20 November 2014…During the pre-election period: Request to visit of photograph fire stations and other facilities. Such visits should generally only be initiated through the Minister's office. However, Members of Parliament do not need to advise the Minister if they are visiting a fire station within their own electorate. This does NOT extend to local election candidates who are not sitting Members of Parliament. If you are contacted by a Member of Parliament or election candidate about a fire station visit, a visit to another FRNSW facility, or asked to participate in a photograph that could be used for party political purposes, it is best to initially decline while you seek urgent advice. Escalate the matter via the chain of command immediately, and also advise Julie Thoener, Manager, Government Relations on 9265 3959 (FIRENET 3959). Non-participation in political activities. Public sector employees must never engage in activities of a political nature whilst on duty, nor identify themselves as employees if engaging in activities when off duty (including the wearing of uniform). FRNSW employees must ensure that any participation in political activities is only in their private time, and does not conflict with their duty as a public employee. Employees must also ensure that when speaking or acting on political matters whilst not on duty, they are not identified in any way as acting or speaking in their capacity as a public sector employee. More information about caretaker conventions and other pre-election practices can be found in the attached paper issued by the Department of Premier and Cabinet. Alternatively, please contact the Government Relations Branch
3. The importance of political neutrality across the NSW public service and its various agencies during an election period was also the subject of the "Commissioner's Corner" internal circular dated 18 February 2015: NSW State Election Requirements With the election scheduled for 28 March 2015, the official "caretaker" period is nearly upon us. Commencing on 6 March and lasting until the election result is clear, the current Government goes into caretaker mode. This means that while routine business continues, the Government and government agencies are required to avoid significant decisions, appointments and major contracts. I alerted you in a previous email that there are also other required practices aimed at protecting the neutrality of the public service, including FRNSW. Members of Parliament often visit fire stations during the election period and this election period has been no different. We can expect this practice to continue as the election draws closer. Members or election candidates may ask firefighters to pose for photographs, or they wish to discuss equipment needs, or promise more funding. If firefighters participate in any such activities or lobby for funding, that is clearly political activity which Fire & Rescue NSW staff, as public service employees, must never engage in while on duty. Should you be approached in any such manner, you MUST immediately inform your supervisor. You also need to inform the Manager of Government Relations, Julia Thoener on 9285 3959. … If you have any questions, please don't hesitate to contact Julia Thoener or your Zone or Area office to discuss.
4. The Deputy Commissioner noted the requirement to abide by the Caretaker Conventions was reiterated in a Memorandum sent to "Mortdale Firefighters" on 16 March 2015 from Acting Captain Allan: During the caretaker period of government which began on Friday 6 March, all Government agencies are bound by the State Government "Caretaker Convention and Other Pre - Election Practices". This convention outlines formal arrangements and established practices that advise government agencies (the Public Service) of their obligation to remain politically neutral during this period and to ensure that public resources are not misused for party political purposes. I was informed that over the weekend posters outlining the closure of the station were displayed on the engine bay doors. I also understand that the posters were removed by the Duty Commander. Displaying material such as this, during the "Caretaker period" could be seen to be in breach of the convention.
5. The final correspondence the Deputy Commissioner sought to rely upon in determining that Captain Challinor had breached Regulation 2014 and the Code of Conduct concerned an email communication sent to all staff by the Commissioner on 23 March 2015. That email was intended to serve as a reminder to staff about their responsibilities and expected behaviour in the lead up to the State election: As a public sector employee, you must not engage in activities of a party political nature whilst on duty, nor identify yourself as an employee of FRNSW if doing so. This means you must not engage in any other activity at work or whilst in uniform that might be perceived to be partisan. … As a public sector employee, you must ensure that any participation in political activities is in your private time, and that those political activities do not conflict with your duties and obligations as a public sector employee. This means that you must not, in the lead-up to the election and on election day: * Identify as a firefighter/FRNSW employee if you are supporting a particular political party (whether that be the current government or an opposition party). * Identify as a firefighter/FNSW employee if you are conducting or participating in political activities, such as door-knocking, handing out how-to-vote cards or featuring in political pamphlets". This clearly means you must not wear your uniform or anything that may identify you as a FRNSW employee while you are acting politically.
6. On 8 July 2015, the Acting Commissioner (as he then was) wrote to Captain Challinor imposing disciplinary action by way of a reprimand: I am now required to make a decision regarding your employment with Fire & Rescue NSW (FRNSW). I have carefully considered: * All of the relevant facts and circumstances concerning your conduct detailed within the Investigation Report, including responses to the allegations provided by you during the course of the investigation; * The letter from the FBEU on your behalf dated 24 June 2015; * The degree of relevance of the conduct matter to your position and duties; and * Your employment history and general conduct history with FRNSW. Pursuant to clause 35(2) of the Fire Brigades Regulation 2014, I have decided to take disciplinary action in this matter. Disciplinary action is defined in the Procedural Guidelines for the Management of Conduct at 10.7. I have asked the Area Commander, Metropolitan South to meet with you to hand you this letter and discuss its contents. The disciplinary action I have decided to take is a reprimand. Therefore, I hereby formally reprimand you regarding your misconduct in this matter. The conduct and behaviour you have displayed in this matter is unacceptable and is inconsistent with the values and behavioural expectations of FRNSW employees. It has the potential to damage the reputation of FRNSW within the immediate and wider community and impact upon your reputation and that of your colleagues. You are required to ensure your conduct in future complies with all standards of behaviour expected of you in all relevant FRNSW policies, procedures and legislation. A copy of this letter will be placed on your personal file. In accordance with Section 10.10 of the Procedural Guidelines, the record will be removed from your personal record if you have been of good behaviour for at least 2 years since the taking of this action. It should be noted a confidential record of this matter will be retained by Workplace Standards.
7. The Deputy Commissioner conceded that in the event Captain Challinor had not identified himself as, "Captain Mortdale Retained Fire Station" in the election pamphlet, no disciplinary action would have been taken against him. Captain Challinor received a reprimand for breach of the Caretaker Conventions requirements variously notified to him prior to the election "when he identified himself as an employee of FRNSW." He was not disciplined for engaging in political activity.

Union

1. The Union pressed that the formal reprimand given to Captain Challinor on 8 July 2015 amounted to victimisation as provided by s 210(1)(h) of the Act.
2. The onus of proving that the reprimand was not a result of Captain Challinor engaging in political activity lies with Fire and Rescue.
3. Captain Challinor's "political activity" did not interfere with the performance of his duties as a retained firefighter captain and there is no suggestion that it did. It therefore falls to Fire and Rescue to rebut the statutory presumption that the alleged conduct was not a substantial and operative cause of the detrimental action to reprimand him.
4. Fire and Rescue cannot seek to characterise Captain Challinor's conduct as "conduct which was to associate NSW Fire and Rescue with that activity by using his position as Captain Mortdale Retained Fire Station for the purposes of those activities".
5. Fire and Rescue's contention that Captain Challinor was disciplined for breach of a policy, rather that his participation in political activities cannot be sustained. No such distinction is made under s 210 of the Act.
6. There is no evidence that Captain Challinor participated in party political activities in his private time which were in conflict with his primary duty as a public sector employee to act in a potentially neutral manner, as required by the Caretaker Conventions.
7. Moreover, Captain Challinor was not on duty when the photograph was taken. In that regard, the Union contended Assistant Commissioner Smith's evidence was that a public sector employee must not engage in political activities whilst on duty or in doing so, identify yourself as an employee of Fire and Rescue.
8. The provisions of s 210 of the Act should be afforded a "more purposeful and beneficial construction": Graham Davis v Amalgamated Television Services Pty Ltd [1998] NSWIRComm 289.
9. The Union considered the decision of the High Court in Construction, Forestry, Mining and Energy Union and BHP Coal Pty Ltd [2014] HCA 41, [2014] 253 CLR 243 did not assist Fire and Rescue's case on the grounds that in BHP Coal, French CJ and Kiefel J "determined it was incorrect to conclude that because the employee's Union position and activities were inextricably entwined with the adverse action, the employee was therefore immune and protected from the adverse action".
10. The decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, which also involved employee misconduct, similarly does not assist Fire and Rescue distinguish, as it has sought to do, between the complained activity and the alleged misconduct.
11. The Union submitted the limits of the decisions in BHP Coal and Barclay can be demonstrated by a comparison with the decision of Mortimer J in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 at 188 and 191: [188] "This difference between a "connection" and a "reason" may, with respect, be elusive. Possession of a protected attribute is clearly insufficient, and it may also be accepted that if the occasion for adverse action happens to coincide with manifestation of a protected attribute (such as political opinion or industrial activity), that is insufficient. If, however, more than this is meant by the use of the term "connection" then it seems to me as a matter of fact in a given case there may well be an overlap with a "reason" for the adverse action. So too the distinction between an employer not having to prove adverse action was "entirely disassociated" from a prohibited reason, but having to prove the prohibited reason was not "substantive and operative" reason. Repeating that these will be questions of fact to be determined on the evidence in a particular case does not remove the difficulty of the somewhat fine distinctions being drawn in the authorities. With respect, they also illustrate the difficulties in paraphrasing, or moving away from, the statutory language which here relevantly requires that an employer prove action was not taken for reasons which "included" a prohibited reason." … [191] "The core question for the Court is whether, as a matter of fact, the respondent's characterisation of the role played by the applicant's political opinion in Mr Vicker's decision-making as "coincidental" or "part of the context or surrounding circumstances" or some such description, is correct."
12. The Union submitted that in the light of Sayed, the core question for the Commission was whether, as a matter of fact, "Fire and Rescue's characterisation of the role played by (Captain Challinor's) political activity in the Deputy Commissioner Smith's decision-making was ie, the application of government policy (was) in effect, simply coincidental. In that regard, the Union asserted the real reason for Deputy Commissioner Smith's decision to reprimand Captain Challinor was the fact that he had engaged in political activity, as conveyed in correspondence dated 10 June 2015.
13. Captain Challinor's conduct did not interfere with the performance of his duties. Acting Commissioner Smith's reliance on the fact that Fire and Rescue considered Captain Challinor "in breach of the requirements that were notified to him" would, if accepted by the Commission, render s 210(1)(h) otiose.

Fire and Rescue

1. The core issue for determination by the Commission is whether or not Fire and Rescue victimised Captain Challinor "because he engages in any public or political activity (unless it interferes with the performance of the employee's duties)" contrary to the provision of s 210 of the Act.
2. Fire and Rescue sought to rely on the various policy and "procedural documents" circulated by the Commissioner or his agents prior to the election designed to ensure that consistent with the provisions of ss 6 and 7 of the Government Sector Employment Act, the public service in New South Wales remains politically neutral and "does not support a particular government of the day". The Caretaker Conventions and associated communications to employees relied upon by Fire and Rescue clearly support that fundamental position.
3. Captain Challinor was entitled to engage in whatever political activities he wished. He was entitled to appear in the election pamphlet as a private citizen provided he was not engaging in that activity in his capacity as a public sector employee. However, he was disciplined for associating Fire and Rescue, the government or the public sector with that particular activity.
4. Section 3.7, Non-participation in political activities, of the Caretaker Conventions makes it clear that public sector employees "must never engage in activities of a party political nature whilst on duty". Further, it clearly informs employees that they "should have regard to their agency's code of conduct in relation to any political activities undertaken when not on duty".
5. The Caretaker Conventions requirements set out in the Commissioner's email to employees dated 9 December 2014, and the "Commissioner's Corner" circular dated 18 February 2015, clearly direct employees not to engage in political activities that would threaten the neutrality of the public service generally and specifically, "while on duty".
6. Moreover, the Caretaker Conventions make it clear that employees should refrain from participating in political activities when not on duty: (Employees) must also ensure that when speaking on political matters whilst not on duty, they are not identified in any way as acting or speaking in their capacity as a public sector employee.
7. The requirements of the Caretaker Conventions were reiterated in the "All Mortdale Fire Fighters" memorandum sent to Mortdale employees by the Acting Captain Allan on 16 March 2015.
8. Critically, the Commissioner's email to employees dated 23 March 2015 referred to the expectation, which Fire and Rescue allege Captain Challinor breached, that as a public sector employee, a fire fighter must not engage in activities of a party political nature whilst on duty, nor identify him or herself as an employee of Fire and Rescue. The email also identifies an expectation that employees would not engage in any other activity at work or whilst in uniform that might be perceived to be partisan.
9. To avoid doubt, the Commissioner's 23 March 2015 email also stated that in the lead-up to the election and on election day, employees must not identify as a fire fighter/Fire and Rescue employee if you are: * supporting a particular party, or * conducting or participating in political activities, such as door-knocking, handing out how-to-use cards or featuring in political pamphlets.
10. Clearly, the pamphlet caption, "Captain, Mortdale retained fire station" identifies Captain Challinor as an employee of Fire and Rescue. Moreover, had Captain Challinor simply appeared in the pamphlet and said words to the effect, "Mr Minns is a good bloke: Mr Challinor", there would be no grounds for disciplinary action to be taken as he would not have engaged in political activities. Nor could Fire and Rescue complain in such circumstances that Captain Challinor had associated it with his endorsement of Mr Minns.
11. Captain Challinor declined the opportunity given to him to respond formally to the allegations. However, at no time did he deny the allegations.
12. Captain Challinor was disciplined in the form of a reprimand not for the reason that he had engaged in political activity, but rather, because he was in breach of the requirements that were notified to him when he identified himself as an employee of Fire and Rescue.
13. Fire and Rescue contended that the decisions in BHP Coal and Barclay support the position taken against Captain Challinor. In BHP Coal, disciplinary action was taken against the employee who held up an offensive sign whilst engaging in an industrial activity. That industrial activity did not immunise him from BHP Coal's disciplinary processes "in respect of showing what was said to be discourtesy or offensive to other employees". Similarly in Barclay, the position the employee took in sending the relevant offending emails did not immunise him if he chose to make allegations of a serious kind.
14. Both Barclay and BHP Coal imply that "you do not get a cloak of immunity or as my learned friend put it, a "licence" to do what you like because you're engaging in a political activity". Captain Challinor had ample licence to engage in political activity provided he did not identify or involve Fire and Rescue with that activity.
15. Fire and Rescue sought to distinguish between the application of the general protections provisions of the Fair Work Act 1999 (Cth) (the FW Act) and the Act in terms of victimisation. Section 360 of the FW Act contemplates there may be multiple reasons for the adverse action: 360 Multiple reasons for action For the purpose of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
16. However, s 210(1) of the Act is, importantly, different and particularly proscribes against an employer or industrial organisation because the person acts in a capacity provided under s 210(1)(a)-(j). In that regard, s 210(1)(h) relevantly states: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: … (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties); …

Consideration and Finding

1. At the outset the decisions in Barclay and BHP Coal beg some analysis.
2. The decision in Barclay concerned a Union delegate who was disciplined for reasons concerning his misuse of the employer's email system in his capacity as a Union officer of the Australian Education Union (AEU). Bendigo TAFE subsequently suspended Mr Barclay. He was also required to "show cause" why he should not be disciplined. The AEU commenced proceedings before the Federal Court for breach of the general protection provisions pursuant to s 346 of the FW Act on the grounds that the decision to suspend him and threaten disciplinary action was adverse action.
3. At first instance, the Federal Court found in favour of Bendigo TAFE. The Court accepted the evidence of the Institute's Chief Executive Officer to the effect that the reason she took disciplinary action against Mr Barclay was not because he was a union officer. Accordingly, that evidence rebutted the statutory presumption in s 361 of the FW Act.
4. On appeal, the Full Court found in favour of Mr Barclay and considered the Chief Executive Officer's evidence as leaving uncontroverted a possibility that she had taken action for an unconscious reason or a prohibited reason which was not understood by her to be so.
5. The decision of the Full Court on appeal was subsequently overturned by the High Court. The Court found in favour of Bendigo TAFE and unanimously determined that the subjective reason for the employer's conduct was essentially a question of fact which must be answered in the light of all the evidence before the Court as to whether action is taken by the employer for a proscribed reason.
6. Put alternatively, the test to establish the "real" reasons for the employer's conduct is not an objective one but rather, a test of what motivated the decision-maker at the time the decision was made. At [44]-[45], French CJ and Crennan J stated: There is no warrant to be derived from the test of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s.346 or the statutory presumption in s.361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s.361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains, "why was the adverse action taken?" This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s.361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of the other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable, is capable of discharging the burden upon an employer even though an employee may be an officer of an industrial association and engage in industrial activity. Gummow and Hayne JJ further observed at [120] that questions of subjectivity as opposed to objectivity serve only to misdirect the correct interpretation of s 346 of the FW Act: …to engage upon an inquiry contrasting 'objective' and 'subjective' reasons is to adopt an illusory frame of reference. Such an inquiry into the 'objective' reasons risks the substitution by the court of its view of the matter for the finding it must make upon an issue of fact…
7. In BHP Coal, the employee was dismissed because his offensive behaviour was in breach of BHP's policies. The Union contended that amongst the reasons employee was dismissed was the fact that he was a member of the Union and had engaged in lawful industrial activity. The Federal Court first accepted that the employee was dismissed because his of offensive behaviour. Union membership and industrial activity were not factors in BHP's decision to dismiss him. However, the Court ultimately held that the employee was dismissed because of the industrial action and the dismissal was unlawful.
8. On appeal, the Full Court determined the employee had been dismissed because of his offensive behaviour and not because of his participation in lawful industrial activity.
9. The High Court subsequently found that adverse action had not been taken when the employer dismissed an employee for holding an "anti-scab" sign on a picket line. The employee's conduct was considered lawful industrial activity. A majority of the Court accepted that BHP's reason for dismissing the employee was not motivated by his conduct but rather, by his disregard for applicable workplace policies. The High Court applied Barclay. At [7]-[9] French CJ and Kiefel J stated: The focus of the enquiry as to whether s 346(b) has been contravened is upon the reasons for Mr Brick taking the adverse action. This is evident from the word "because" in s 346, and from the terms of s 361. The enquiry involves a search for the reasoning actually employed by Mr Brick. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 at 517 [45]; see also at 542 [127]. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1], French CJ and Crennan J observed that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 without calling direct evidence from the decision-maker as to his or her reasons. The court is not obliged to accept such evidence. It may be unreliable for a number of reasons. For example, other objective evidence may contradict it. However, s 346 does not involve an objective test. In Bendigo, Gummow and Hayne JJ explained that it is misleading to use the terms "objective" or "subjective" to describe the enquiry in s 346. To speak of objectively ascertained reasons risks the substitution by the court of its own view, rather than making a finding of fact as to the true reason of the decision-maker. (references omitted)
10. In the light of BHP Coal, the success or otherwise of an adverse action claim against the employer may turn on the meaning of the words "because of" set out in s 351 of the FW Act where the employer may be in a position to argue that it did not seek to discipline or dismiss a particular employee because of his or her political opinion but rather for breach of a workplace policy or rule.
11. The High Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
12. The authorities cited by the parties suggest that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 of the FW Act without calling direct evidence from the decision-maker as to his or her reasons particularly bearing in mind the onus lies with the employer to show that it did not take adverse action for a prohibited reason.
13. It therefore follows that the onus of proving that an employee's alleged "political activity" was not an operative factor taking adverse action is to be discharged on the balance of probabilities, in the light of all the established evidence.
14. Applying the stated authorities to this matter, Fire and Rescue's direct testimony must satisfy the Commission that on the civil balance of probabilities, Captain Challinor's conduct "was not a substantial and operative cause of the detrimental action".
15. In the light of Barclay and BHP Coal, direct evidence from a decision-maker concerning the reasons for adverse action was taken is critical to rebut the presumption that the adverse action was taken for a prohibited reason.
16. In Sayed, the Federal Court found the Union had breached s 351 of the FW Act by taking disciplinary action against and ultimately dismissing a union official for exercising political opinion and affiliation. Mr Sayed was allegedly an active member of the Socialist Alliance political group. The Court considered this activity "constituted the holding and manifestation of a political opinion which contravened s 351 of the FW Act.
17. Mr Sayed was a CFMEU organiser engaged on a six month fixed term contract to work in the Pilbara. The CFMEU had forged an alliance with the Australian Workers' Union (AWU) to increase Union membership. Certain allegations were made by a senior AWU official that Mr Sayed was "bagging" AWU officials and was a "Trot". Mortimer J stated the general protections dispute had a number of aspects: [46] No particulars were given in the statement of claim of what constituted the applicant's political opinion. Not surprisingly, particulars were sought by the respondent. In a letter dated 25 October 2013 the respondent sought particulars of various aspects of the applicant's statement of claim. A response was provided by the applicant on 8 November 2013. There are only two relevant aspects of the particulars to the issues which need to be determined. First, the manner in which the applicant particularised his political opinion. Second, the manner in which the applicant particularised the allegation that he was a member of a "political party" called the Socialist Alliance. [47] On the first aspect, the applicant identified his political opinion in the following way: the Applicant's political opinion included political opinions he shared with the Socialist Alliance, his membership of the Socialist Alliance, his alleged belief in "Trotskyism", and the belief that he was a communist. [47] On the second aspect, the applicant gave the following particulars: (a) the Socialist Alliance is a political party insofar as it is a party with a political opinion; (b) the Applicant was a member insofar as he paid membership fees; [48] The respondent contended that the applicant's political opinion formed no part of the reasons for any of the actions, even if they were all properly characterised as adverse actions. It contended that, even if the Court were to find that the applicant's membership (past, present, or imputed) of the Socialist Alliance was a reason for any of the alleged adverse actions, membership of the Socialist Alliance did not constitute a "political opinion" as that phrase should properly be construed in s 351(1) of the Fair Work Act.
18. In relation to Barclay, Her Honour observed in part: [179] The High Court's decision in Barclay clarified a number of matters, in particular about the operation of the statutory presumption in s 361 of the Fair Work Act. In their reasons, members of the Court emphasised that such a presumption, combined with the nature of the inquiry being one as to the "particular reason" of the decision-maker and involving an assessment of the state of mind of the decision-maker (rather than a wholly objective inquiry), meant that the presumption would rarely be effectively rebutted without direct testimony from the decision-maker: at [42]-[45] per French CJ and Crennan J, at [101], [127] per Gummow and Hayne JJ, at [146] per Heydon J. As French CJ and Crennan J observe at [50] (see also Gummow and Hayne J at [86] and Heydon J at [149]), citing General Motors-Holden's Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J, the rationale for the presumption (and the correlative reverse onus) is that the burden should fall on the person whose own knowledge might best explain the reason for her or his conduct or decision.

Legislation

1. Section 210 relevantly provides that once an employee (or prospective employee) has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation set out in s 210(1) of the Act, it is then presumed that the relevant employee or prospective employee was victimised unless that presumption is rebutted by the employer or industrial organisation as provided by s 210(2): 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: ... (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or … (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.

Was Captain Challinor victimised?

1. The starting point is the assumption that Captain Challinor has demonstrated detriment and it therefore falls to Fire and Rescue to establish that Captain Challinor was not disciplined because he engaged in any public or political activity.
2. Fire and Rescue is required to rebut the presumption contained in s 210(2). Rebuttal requires Fire and Rescue to provide evidence that on the balance of probabilities, Captain Challinor's "political activity" was not "a substantial and operative cause of the detrimental action" in the form of the reprimand.
3. The word "victimise" is not defined in the Act. In Public Service Association of New South Wales v Teterycz [1997] NSWIRComm 159, the Full Bench considered the meaning of the term "victimisation" adopting the reasoning in Davis. The Full Bench stated: ...the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment".
4. In Twentieth Superpace Nominees Pty Ltd (t/a Specialised Container Transport) and Transport Workers' Union of New South Wales (on behalf of Steve Purdy) [2006] NSWIRComm 218, the Full Bench observed at [43]: ...we consider that the terms of s 210(2) are clear: once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation in s 210(1), then it is presumed that employee or prospective employee was victimised. The employee will be required to prove the elements of the alleged reason for victimisation being the elements of one or more of the paragraphs in s 210(1) (for example, an applicant under s 210(1)(j) will need to prove the existence of a complaint about a workplace matter concerning safety for the purposes of that sub-section). In the face of the presumption in s 210(2), the onus is then on the employer or industrial organisation to show that the "alleged matter" was not "a substantial and operative cause of the detrimental action".
5. Assistant Commissioner Smith made the decision to reprimand Captain Challinor. In making that decision, it was Assistant Commissioner Smith's unchallenged evidence that he relied upon the raft of pre-election communications to employees set out in his affidavit to support the allegation that Captain Challinor had engaged in misconduct in breach of Regulation 2014 and the Code of Conduct.
6. The legislative scheme provides that direct evidence from the "decision-maker", being Assistant Commissioner Smith, which if it is accepted by the Commission as credible, is capable of discharging that burden.
7. It must therefore follow that in assessing the credibility of Assistant Commissioner Smith's evidence, the Commission must give consideration to the intent and purpose of the decision-maker's conduct at that time together with an assessment of the credibility of such testimony.
8. The Union argues that Fire and Rescue's position that Captain Challinor was reprimanded for breach of Regulation 2014 and the Code of Conduct is plainly wrong. Rather, the real reason lied with his political activity associated with the election pamphlet.
9. The Union also argued that s 210 of the Act does not distinguish between activity associated with a breach of policy and a political activity.
10. Moreover, the Union also submitted that the decisions in Barclay and BHP Coal do not assist Fire and Rescue to distinguish between the complained activity and the alleged misconduct.
11. The thrust of Assistant Commissioner Smith's evidence was that employees had received a number of communications concerning their respective rights and obligations as NSW public sector employees during the 2015 caretaker period. The Caretaker Conventions were clear and unequivocal: Public sector employees (other than Ministerial Office Staff) must never engage in activities of a party political nature whilst on duty.
12. Captain Challinor was at work during December 2014 when the Commissioner sent an email to all staff dated 9 December concerning the Caretaker Conventions. There is no material before the Commission to support the proposition that he did not receive the email or, was simply unaware of the obligations upon public servants during a caretaker period.
13. The Union did not require Assistant Commissioner Smith for cross-examination. In the absence of cross-examination, his evidence that Captain Challinor was reprimanded following his breach of Regulation 2014 and the Code of Conduct is unchallenged. Moreover, there was no direct evidence before the Commission from Captain Challinor. Instead, the Union sought to rely on Mr Maniatis' affidavit.
14. It is a well-established general principle that a party must challenge in cross-examination the evidence of any witness of the opposing party if he/she wishes to argue that evidence given on a particular issue should not be accepted: Browne v Dunn (1894) 6 R. 67, HL. In such circumstances, I am unable to find that Assistant Commissioner Smith's evidence was in any respect not credible.
15. In Barclay, the High Court observed that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 of the FW Act without calling direct evidence from the decision-maker as to his or her reasons particularly bearing in mind the onus lies with the employer to show that it did not take adverse action for a prohibited reason.
16. It follows from Barclay that the onus of proving that an employee's alleged "political activity" was not an operative factor taking adverse action is to be discharged on the balance of probabilities, in the light of all the established evidence. Applying Barclay to this matter, Fire and Rescue's direct testimony must satisfy the Commission that on the civil balance of probabilities, Captain Challinor's conduct "was not a substantial and operative cause of the detrimental action".
17. The Commission has taken into consideration all the written and oral evidence before it as well as the oral and written submissions made by the parties.
18. On the material before the Commission and absent any direct evidence to the contrary, it is clear Captain Challinor's appearance and endorsement on the election pamphlet was intended, at least by the candidate or his staff, to represent his endorsement. The Code of Conduct and the various communications sent to employees concerning participation in political matters and the requirement that the public sector remains politically neutral work against Captain Challinor.
19. There was also no evidence that prior to taking leave, he was unaware of his obligations under the Caretaker Conventions and/or the Code of Conduct or had not received the Commissioner's email dated 9 December 2014.
20. The Union has failed to make out a case to the required standard of proof that there was victimisation of Captain Challinor. Against that backdrop, I have formed the view that the overwhelming evidence in this matter supports the Fire and Rescue's decision to give Captain Challinor a formal reprimand on the grounds of misconduct for breach of Regulation 2014 and the Code of Conduct has, on the civil standard of proof, satisfactorily rebutted the presumption contained in s 210(2) of the Act. Acting Commissioner Smith's evidence in support of the reasons Captain Challinor was given a reprimand are, in my view, compelling.
21. In the absence of Assistant Commissioner Smith's cross-examination, there is no available evidence before the Commission that Captain Challinor was both reprimanded and victimised as alleged for reasons that he had engaged in political activity.
22. Any proposition that Captain Challinor was unaware of his responsibilities and obligations during the Caretaker period cannot be sustained on the evidence before the Commission, nor was that proposition raised or challenged by the Union.
23. It was not disputed that a complaint had been made by the Union on behalf of Captain Challinor within the meaning of s 210(1)(h). Nor was there any dispute between the parties that the reprimand was detrimental action, being a level of available discipline.
24. The Commission is required to determine the actual reason or reasons which motivated the decision-maker. It is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker.
25. Assistant Commissioner Smith has denied that he was motivated by Captain Challinor's political activities in deciding to issue the reprimand. He was assisted in that decision by the Investigation Report. That report provided the reasons why Captain Challinor's misconduct was proven. Such reasons did not include a positive finding or allegation that he had engaged in political activity.
26. Rather, the Report overwhelmingly supported the proposition the by his involvement in the election pamphlet, Captain Challinor had breached Regulation 2014 and the Code of Conduct.
27. Given my consideration of all the material put to the Commission in this matter, I have determined that the decision to reprimand Captain Challinor was not motivated by his political activity.
28. I cannot be comfortably satisfied in light of all of the evidence, that Captain Challinor's political activity related to the election pamphlet was, on the balance of probability a substantial and operative reason for Fire and Rescue to issue him with a reprimand.
29. Captain Challinor was disciplined not for reasons of his political activity but rather because he failed to avoid the conflict between his party political activities and serving the government of the day in a politically neutral manner. He was not entitled to associate Fire and Rescue with that activity. The presumption rebutted set out under s 210(2) of the Act has been rebutted on the grounds that I have determined the applicant's political activity was not a substantial and operative cause of his reprimand. Accordingly, the application is dismissed. JD Stanton COMMISSIONER

Amendments 20 June 2016 - Amendment of spelling error in para [66]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2016