Fraser v Commissioner of Fire and Rescue NSW

DECISION

This is a public sector disciplinary appeal by Andrew Fraser, an employee of the Commissioner of Fire and Rescue NSW, the respondent to the appeal.
The appellant joined the NSW Fire Brigades, now Fire and Rescue NSW ("FRNSW"), in 1995 as a recruit firefighter. By 2018, the appellant was employed in ComSafe Training Services, FRNSW's registered training organisation, as the Deputy Manager. His position was graded at Operational Support Level 3 under the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award ("Award").
On 6 August 2019, following an investigation into his conduct, the appellant was demoted to Senior Firefighter and reassigned into an operational role. This was, in effect, a demotion of four grades and a salary reduction of $707.26 per week or approximately $36,777 per year. It is against this demotion that the appellant has appealed.
The appeal was listed for hearing before me on 19, 20 and 21 February 2020. However, on 18 February 2020, the day before the hearing was due to commence, the Commission received correspondence from the solicitors for the respondent requesting that 19 February 2020 be converted to a conciliation conference before me. The appellant's representative, the Fire Brigade Employees' Union ("FBEU"), supported this proposal. I agreed to conduct a conciliation conference on 19 February 2020, but only on the basis that both parties gave an undertaking not to exercise their rights under section 173 of the Industrial Relations Act 1996 if the matter did not settle. Both parties gave the undertaking.
At the conciliation conference on 19 February 2020, the appellant was represented by Ms L Saunders of counsel and the respondent was represented by Mr M Easton of counsel. The transcript of the proceedings on that day is set out below: COMMISSIONER: The matter was listed before me today initially for hearing but, as a result of some correspondence received in the Commission, I understand the parties wish to engage in some conciliation this morning. EASTON: Yes, Commissioner, the parties in the last little while, the last week or two, have exchanged offers and had discussions about things. We're very close to a resolution but not quite there. I think both sides are optimistic about it. Rather than have everybody prepare and witnesses attend for today, seeing that there's going to be a shorter number of witnesses anyway than what was initially expected, we thought it a better use of everyone's time to attempt conciliation today and then, if that doesn't work, we're reasonably comfortable that there'd be enough time tomorrow and Friday to hear the matter if required and certainly, of course, from the respondent's side, if you assist us with the conciliation process today but it's not successful, then we certainly won't be looking at any application under s 173. SAUNDERS: Yes, I agree with what my friend has said. I think we can productively use the time today. Perhaps the best thing to do is go off record and then we can explain where the parties are up to. COMMISSIONER: Very well. RECORDING EQUIPMENT SWITCHED OFF AT COMMISSIONER'S REQUEST SAUNDERS: The parties have reached in principle agreement to progress the matter. (1) Fire & Rescue will undertake to have Mr Fraser start in the new logistics role within 3 weeks of today's date, earlier if possible. (2) A report back to be scheduled for, subject to the Commission's convenience, 14 April at 9.30am. (3) Mr Fraser to notify the Commission and the respondent by 7 April as to whether that report back needs to go ahead. (4) If Mr Fraser on the 7th indicates that the report back is not needed or, in other words, elects not to proceed with it-- EASTON: If Mr Fraser does nothing, the proceedings will be taken to be discontinued on the next day, 8 April. SAUNDERS: (5) The position that Mr Fraser currently holds at Beecroft station will be preserved for him in the interim. (6) Those timelines can be extended by mutual agreement, and (7) this is to be recorded in a deed which we anticipate we will finalise in the next couple of days. In addition, there's some undertakings that need to be put onto the record. COMMISSIONER: Very well. SAUNDERS: Mr Fraser undertakes to not disclose the evidence or its contents filed in the proceedings except to his legal advisers. The FBEU undertakes to take all reasonable steps to prevent its officers, employees or agents from disclosing the evidence or its contents filed in these proceedings. Fire & Rescue New South Wales undertakes to take all reasonable steps to prevent its officers, employees or agents from disclosing the evidence or its contents filed in these proceedings. EASTON: Fire & Rescue does make that undertaking. SAUNDERS: That's all I think needs to be put. COMMISSIONER: I thoroughly commend the parties for reaching the position that you have reached. I propose to stand this matter over for report back before me at 9.30am on Tuesday 14 April 2020 but, on the basis that Ms Saunders outlined, if the matter does not need to go ahead on that date, the proceedings will be discontinued. ADJOURNED TO TUESDAY 14 APRIL 2020 FOR REPORT BACK AT 9.30AM

Deed of Release

The appellant, FRNSW and the FBEU executed a Deed of Release dated 24 February 2020 ("Deed"), the relevant parts of which are set out below: Background A. SF Fraser was employed by FRNSW as Deputy Manager ComSafe Training Services Operations Support Inspector. B. On 6 August 2019 FRNSW Deputy Commissioner Jeremy Fewtrell wrote to SF Fraser advising him that he had decided to impose a disciplinary penalty of demotion and removal from his role as Deputy Manager ComSafe Training Services to a Senior Firefighter position in respect of the sustained allegations of bullying and harassment (Allegation One), and to issue a disciplinary reprimand in respect of the sustained allegation that he had disobeyed a lawful direction (Allegation Two), and provided reasons for his decision (Misconduct Outcome), C. At the time of the Misconduct Outcome, SF Fraser was remunerated as an Operational Support Inspector as per the Crown Employees (Fire & Rescue NSW Permanent Firefighting Staff) Award 2017 (Permanent Award). D. SF Fraser has sought relief from the Misconduct Outcome as a Public Sector Disciplinary Appeal brought pursuant to Part 7 of the Industrial Relations Act 1996 (IR Act) for reduction in penalty only. SF Fraser is represented by the FBEU as the applicant in matter no. 2019/254133 before the Industrial Relations Commission (IRC) of NSW (Proceedings). E. The Parties have agreed to accept the terms and conditions set out in this Deed in full and final discharge of their respective obligations and in settlement of all facts or matters referred to or alleged in the Proceedings in accordance with the terms of this Deed. Agreed terms 1. Undertaking and warranty 1.1 SF Fraser undertakes and warrants that he: (a) Accepts his removal from the Operational Support Inspector position of Deputy Manager ComSafe; (b) Will not apply for any role in Comsafe unless invited to do so by FRNSW management; (c) Will not commence or attempt to commence any proceedings in any jurisdiction against FRNSW arising from any aspect of the Misconduct Outcome or the Proceedings against FRNSW; save as to his protected rights under the Workers' Compensation Act 1987. 1.2 FRNSW undertakes and warrants that: (a) Deputy Commissioner Fewtrell's decision will be redacted and replaced with a decision effective 6 August 2019 that Mr Fraser: i. in respect of Allegation One, be reduced in rank to Operational Support Level 2, with the consequent reduction to a weekly wage of $2,030.76; ii. in respect of Allegation Two, be reprimanded: and iii. be ineligible for promotion or higher duties appointments for a period of 12 months (I.e. until 6 August 2020). (b) SF Fraser will be back-paid the difference between Operational Support 2 and Senior Firefighter weekly wage to 6 August 2019 at the rate of $340.59 per week; (c) FRNSW will create an ongoing placement for SF Fraser in an Operational Support Level 2 position in Operational Logistics working special projects assisting Equipment Logistics and Equipment Management (Position), based at Greenacre. A copy of the Position Description is attached at Schedule A; (d) SF Fraser will remain as a Senior Firefighter and will commence in the Position in accordance with written notice by FRNSW which is to be issued no less than 3 weeks from 19 February 2020; (e) SF Fraser's position at Beecroft will be preserved until 14 April 2020; (f) At the expiry of the period in 1.2(a)iii. above, SF Fraser will be able to access any opportunities by merit selection and such processes will be conducted in accordance with FRNSW policies and procedures. 1.3 Subject to clause 1.8, SF Fraser and FBEU undertake and warrant that they will not publish or broadcast any information regarding the Proceedings. 1.4 The FBEU undertakes and warrants that SF Fraser's acceptance of the role in 1.2(c) above negates the need for further consultation by the FBEU in respect of this role. (collectively, the Undertakings). 1.5 SF Fraser acknowledges and agrees that each of the Undertakings in clauses 1.1 and 1.3 are separate and enforceable undertakings and warranties. 1.6 FRNSW acknowledges and agrees that each of the Undertakings in clause 1.2 are separate and enforceable undertakings and warranties. 1.7 FBEU acknowledges and agrees that each of the Undertakings in clauses 1.3 and 1.4 are separate and enforceable undertakings and warranties. 1.8 Nothing in this Deed prevents SF Fraser or FRNSW from stating, if necessary, that the Proceedings have concluded, 2. Release and discharge SF Fraser and the FBEU unconditionally releases and discharges FRNSW and its officers, employees, servants, agents, assigns and insurers from any and all Claims, no matter how the same arose, and on every count, which now exist including in relation to the Misconduct Outcome and the Proceedings, which, but for this Deed, exist at the date of this Deed. 3. Report Back and Discontinuance of the Proceeding 3.1 The Proceedings will be listed for report back on 14 April at 9.30am before Commissioner Murphy at the IRC. . 3.2 SF Fraser is to notify the IRC and FRNSW in writing by 7 April 2020 as to whether the report back is required to go ahead. 3.3 Should SF Fraser indicate a report back is not needed, or should SF Fraser not provide any written notice in accordance with clause 3.2, the Proceedings will be taken as discontinued on 8 April 2020. 3.4 Unless SF Fraser requests the report back go ahead, SF Fraser agrees to instruct the FBEU to file a Notice of Discontinuance of the Proceedings with the IRC and take all steps necessary and do all things required to discontinue the application within 3 business days of 8 April 2020. 3.5 The dates identified as clauses 3.2 to 3.4 inclusive can be amended by written agreement between FRNSW and the FBEU. ……………………….. 7. Warranties 7.1 SF Fraser and the FBEU warrant that: (a) this Deed is voluntarily entered into; (b) SF Fraser has been given the opportunity to take legal and financial advice as to the nature, effect and extent of this Deed; (c) SF Fraser understands the legal significance and effect of executing this Deed; and (d) SF Fraser is aware that FRNSW is relying upon these warranties and remains prepared to exercise its rights in the event any such warranties are breached. 7.2 FRNSW warrants that it has not made any promise, representation or inducement or been party to any conduct material to the entry into of this Deed other than as set out in this Deed. 8. Further action Each of the Parties to this Deed must sign and execute documents and do all such further acts, matters and things that are necessary and desirable to give effect to the provisions of this Deed. 9. General …………………….. 9.3 Both Parties may plead this Deed in any jurisdiction as a complete defence to any actions, suits or proceedings commenced, continued or taken by or on behalf of the other party in connection with any of the matters referred to in this Deed, including but not limited to any of the matters referred to in the Background of this Deed. 9.4 Every clause and sub-clause of this Deed will, where the context permits, be severable from every other without invalidating or affecting the remaining provisions of this Deed or the validity of that provision in any other jurisdiction. 9.5 A waiver by one Party does not prejudice its right in respect of any subsequent breach of this Deed by the other party. A Party does not waive its rights under this Deed because it grants an extension or other forbearance to the other Party. 9.6 This Deed constitutes the entire agreement of the Parties relating to this Deed and supersedes all prior understandings, negotiations, agreements, written or oral, express or implied, in relation thereto.
A position description for the position of Assistant Equipment Management Officer was attached to the Deed. This position was graded as Operational Support Level 2 under the Award with a weekly rate of pay of $2,457.37. The terms of the Deed meant that the reduction in the appellant's weekly rate of pay would be $366.67 rather than $707.26 from 6 August 2019, and $375.81 rather than $724.85 with effect from 17 February 2020, the date of the last 2.5% increase in rates of pay under the Award.
At the report back hearing before me on 14 April 2020, Ms Saunders stated that the appellant had not been placed in the Assistant Equipment Management Officer position at Greenacre but "has actually been made a storeman in Chullora". This was disputed by the respondent. It was stated on behalf the appellant that he "doesn't contend that the tasks he is being required to do are impermissible, or not within the scope of his job, the agreed description. The issue is that he is performing only the lower level aspects". The matter was adjourned for a further conciliation conference before me on 28 April 2020.
The matter came back before me on 28 April and 18 May 2020. On the latter occasion I was advised that the parties had been unable to resolve the matter and that the appellant wished to proceed with his public sector disciplinary appeal. It was indicated on behalf of FRNSW that it would be pleading that the Deed was a bar to the appeal going forward. I made directions for the filing and serving of evidence and submissions going to the issue of whether the appellant's disciplinary appeal could proceed in light of the terms of the Deed. I listed that matter for hearing before me on 4 August 2020.

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Parties

Cited By (1)