Maxwell v Commissioner of Fire and Rescue NSW - [2020] NSWIRComm 1024 - NSWIRComm 2019 case summary — Zoe

NSWNSWIRComm

Maxwell v Commissioner of Fire and Rescue NSW

[2020] NSWIRComm 1024

Industrial Relations Commission (NSW)|2019-03-21

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2019-03-21

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

Background

349 Kurri Kurri Station is not staffed around the clock by firefighters working on rotating shifts but is staffed by retained firefighters. Retained firefighters are not permanent firefighters, but are "on-call".
In accordance with the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2017 (and predecessor instruments) (the "Award") retained firefighters are required to make themselves available for certain lengths of time per week depending on the grade, and to attend one third of station calls.
Retained firefighters are paid a "retainer" in recognition of, and compensation for, the attendances and periods of declared availability required of them in accordance with the Award.
For a station to remain operational it must have a minimum number of firefighters available to attend a callout. If there are insufficient retained firefighters marked available then this creates a "shortage" which can be filled by permanent firefighters or retained firefighters from another station.
Clause 28 of the Award relevantly provides: 28. Attendance and Availability Requirements 28.1 The following attendance guidelines shall apply to employees covered by this Award: 28.1.1 Attendance at Incidents - 28.1.1.1 Employees are required to attend a minimum of 33% of all calls received by the employee's brigade in any six month period. 28.1.1.2 Employees are also required to attend a minimum of 80% of all calls received by the employee's brigade during periods of compulsory availability in any four week period. 28.1.2 Attendance at Drills - Employees are required to attend a minimum of 75% of all regular drills conducted at their brigade in any six month period. 28.2 Any calls received or drills conducted during a period of approved leave or authorised absence shall be deemed to have been attended at the relevant minimum level, being either 33%, 75% or 80% subject to subclause 28.1, when determining an employee's levels of attendance. 28.3 In cases where an employee's attendance falls below the requirements prescribed by subclause 28.1, the employee's Area Commander shall notify the employee in writing of such deficiency and inform the employee that his/her attendance will be monitored over the next 3 months. If the employee's attendance does not meet the required levels pursuant to subclause 28.1.1 for that 3 month period then disciplinary action may be initiated. 28.4 Employees who have been notified in terms of subclause 28.3 may make application to the Commissioner for special consideration. 28.5 The attendance requirements referred to in subclause 28.1 may be altered by agreement between the Department and the Union. 28.6 Compulsory Availability 28.6.1 Employees are required to declare a minimum number of hours during which they will be available to respond over the course of the coming week, and the days and times upon which this declared availability will apply. The minimum number of hours required of each employee shall be known as compulsory availability, and shall be determined by their current Retainer as provided at subclause 6.3.1.1. 28.6.2 Subject to subclauses 28.6.3 and 28.6.4, the day(s) and time(s) of any period(s) of compulsory availability shall be determined by the firefighter in consultation with their Captain and the other employees attached to their brigade and confirmed by each employee using an agreed system or, if the Department and Union are not agreed, a system determined by the Industrial Relations Commission. 28.6.3 Employees who have not declared their compulsory availability for the requisite number of hours for the week commencing 0001 hours Friday by 1800 hours on the Wednesday immediately beforehand may be allocated the day(s) and time(s) of their period(s) of compulsory availability for the coming week by the Duty Commander in consultation, if practicable, with the brigade's Captain, provided that an employee on the Standard Retainer cannot be assigned to a Weekday Retainer period without their consent. 28.6.4 If by 1800 hours on the Wednesday it is found that a surplus number of employees have declared their availability for a particular period then the Duty Commander may select the surplus employee(s) and allocate alternate day(s) and time(s) of compulsory availability for the employee(s) in consultation, if practicable, with them and the brigade's Captain, provided that an employee on the Standard Retainer may not be reassigned to a Weekday Retainer period without their consent. 28.6.5 The surplus number of employees referred to in subclause 28.6.4 shall be determined by reference to the following table: Minimum number of employees required to maintain safe and effective staffing Surplus number of employees for the purpose of subclause 28.6.4 2 3 or more 4 6 or more 6 8 or more 8 10 or more

[2]

28.6.6 An employee who has declared a particular day(s), time(s) and/or period(s) of availability for the coming week may subsequently arrange a mutual exchange with another employee provided that the minimum number of hours required of the employee by subclause 28.6.1 will still be met and further, that the exchange receives the prior approval of the brigade's Captain or Deputy Captain. 28.6.7 An employee who has been allocated a particular day(s), time(s) and/or period(s) of availability for the coming week pursuant to subclause 28.6.3 may apply to have such day(s), time(s) and/or period(s) varied, either in whole or in part, by written application to the Duty Commander, but must maintain that allocated availability unless and until advised otherwise by the Duty Commander.

The applicant commenced employment with the respondent on or about 1 January 1989 as a part-time retained firefighter and was promoted to Deputy Captain on or about 1 January 1994.
The applicant was promoted to Captain of 349 Kurri Kurri Station on or about 1 January 1996 and he held this position until he was suspended on 12 December 2016.
There were difficulties at the 349 Kurri Kurri Station from around 2009.
The applicant says that the difficulties arose because a group of retained firefighters were difficult to manage, and antagonistic toward him as their manager. The applicant says that he regularly sought assistance from Fire and Rescue management, and followed advice from Professional Standards in attempting to deal with these difficulties.
Superintendent Windeatt, in his evidence on behalf of the respondent, referred to the applicant's "dictatorial management style" and "a bully to people who didn't 'fit the mould'" [16] .
On 12 October 2015 the applicant sent an email to the 349 Kurri Kurri Station crew the contents of which included: With the festive season approaching we need to start preparing now. For the benefit of the new members of our crew, we have a system that is applied every Christmas to ensure that everyone gets a reasonable amount of time to enjoy the festive season while still covering our commitment to the local community by providing a response capability. (Emergencies happen at any time) This year on Christmas Day, if you report to Deputy Captain Jamie Chapple, you will have the morning off (0600-1400) and will be on call in the afternoon (1400-2200). if you report to Deputy Captain Jamie Cockburn, you will have the morning on call (0600-1400) and will be off in the afternoon (1400-2200). Boxing Day and New Years Eve if you report to Deputy Captain Jamie Cockburn you will [be] on call Boxing Day. if you report to Deputy Captain Jamie Chapple, you will [be] on call New Year's Eve. If this does not suit you, please contact someone from the other deputies list to swap. Any questions, please contact your Deputy.
In or about early 2016, the respondent introduced an online system which allowed retained firefighters to log in and update their availability remotely. This system is known as the Gartan Availability System.
One of the features of the Gartan Availability System was that it automatically sent a text message to all staff when a shortage appeared. According to the applicant, the Gartan Availability System and the text messages generated when a crew member marked themselves as unavailable, caused issues within the crew.
The applicant's evidence is that he received complaints from Deputy Captain Jamie Cockburn and Acting Deputy Captain Ben Armstrong that they were being abused by crew members for shortages and excessive SMS messages being sent.
The applicant says he sought to deal with the crew's issues about the Gartan Availability System by holding a team meeting in September 2016.
On 20 September 2016 the applicant sent an email to Inspector Thomas Freedom requesting a discussion about the station's operational capability. [17] The applicant says that he did not hear from Inspector Freedom for a week after he sent this email. [18]
On 20 September 2016 the applicant sent the following email to members of the 349 Kurri Kurri brigade: Hi Everyone, Things are certainly getting out of hand with the Gartan Availability system where 27 SMS alerts generated by the system because of actions of 349 Crew members in one day. I don't think anyone in the crew is happy with the current situation. I am calling a Team Meeting for next Monday night (26/9/16) at 20:00 hours to discuss and set in place protocols regarding the use of the Gartan Availability System at 349 Station. I have selected the day and time to allow maximum number of crew members to attend. I strongly urge all crew members to attend this meeting, even if that means altering your plans for that night. It is in your best interest to attend and have your say as outcomes of the meeting will be documented and will be binding on all crew members at 349 Station. If you can't attend the meeting, please discussion your views and concerns with your Deputy Captain prior to the meeting so they can raise your comments on your behalf. Alternatively you could send me an email with your views and concerns. Ken Maxwell
The email set out in paragraph [75] was sent to Jan McGinley, Workplace Standards Advisor, Fire and Rescue NSW at 9:01 AM the same day.
On 26 September 2016 the following members of the 349 Kurri Kurri brigade attended a meeting at the station: Deputy Captain Cockburn, Ms Legovich; Ms Day, Brett Cameron; Mr Mifsud; Ms Barrett; Deputy Captain Wilkinson; Alex Smith; and Ryan Hutchinson.
All of the attendees at the meeting on 26 September 2016 signed a document headed: "Gartan Availability Agreement 349 Station". According to the applicant, this document was "drafted and agreed by the crew members" and typed by Ms Day.
Mr Albrew, Ms Fullick, Ms Barrett, Mr Redfern, Mr Murray, and Ms Hampton were not at the meeting but subsequently all but Ms Fullick signed the Gartan Availability Agreement.
The Gartan Availability Agreement states: As a Member of 349 Station, I will [be] considerate of my fellow crew members by following the following procedures: I will:  Make every attempt to fix shortage before making it.  Plan in advance (don't book of just in case).  Make the call - answer the call/call back (as soon as possible)  Attend when available.  Not attend when shown unavailable.  Try to put in at least 60 hours of availability per week.  Not take all of every weekend off.  Check qualifications (are we covered?).  Do my best to ensure everyone follows this agreement.
On 18 November 2016, Ms Fullick forwarded an email chain to Elise Ayres at Workplace Standards at Fire and Rescue. The initial email in this chain was sent by the applicant to station members on 17 November 2016 at 12:12 PM and included the following: We have put together an agreement on the running of the Gartan Availability System for this station. This was put together in a consultative and democratic process. Unfortunately we have one team member that refuses to cooperate with the team agreement. I have heard a rumour that some people have been saying "the Award says it is the Captain's job to ring crewmembers, not mine" I would like to know what "Award" you are quoting from because my Award is exactly the same as yours. Crown Employees Retained Firefighting Staff Award 2016. How about you read the award before attempting to quote what is in the Award. When we have one person that refuses to cooperate, we soon have others follow and this has happened. Because we must all play by the same rules, I am suspending the Gartan Availability Agreement until further notice. No one is obliged to abide by the agreement as it is not fair on people who do try hard to stick to the agreement, when other people just don't care. There will be some changes to the way authorised [duties] are allocated. We have a very limited number of Authorised Duties each month. The more time taken to manage our station's availability respond removes opportunities to do other activities. We therefore need to prioritise the work.
At 3:25 pm on 17 November 2016, Mr Cockburn, a Deputy Captain at Kurri Kurri Station, replied to the applicant's email copying the original recipients. The Deputy Captain's reply included: I feel extremely let down and disappointed that our workplace has deteriorated to this point. Again the majority of our station is forced to suffer due to the actions of a minority. I wish that the minority would get behind the team and all work together, and if they can't manage to do that, they could consider the feelings of the people that would be a cohesive team and resign.
At 4:41 pm on 17 November 2016, Mr Hutchinson replied to the applicant's email copying the original recipients. Mr Hutchinson's reply included: I just want to say thank you to the minority that don't want to play by the same rules as everyone else. I lose an hour's pay for station cleaning this week due to lack of authorised hours so see you all when we are driving down the road in a truck that hasn't been checked and using equipment that hasn't been checked.
At 5:59 pm on 17 November 2016 Mr Wilkinson replied to the applicant's email copying the original recipients. Mr Wilkinson's reply included: … I feel bitterly disappointed that we have come to this point with our station that so many of you run around saying that you have pride in, well it doesn't seem like it. I really think it's time to grow up and take ownership of your actions if you created a shortage fix it and that means if it sends a text message will not it still flashes up and warns you that you are going to create one. Ken has enough stuff to do than fix the issues that you create and I think you should read the award before you start quoting out. So the present time don't feel like we even have a team and if you don't feel you can be part of the so-called team that we have than there is no room for you and it's time to go. So with that said it's time to suck it up harden up and pull it together and get this station running properly again.
On 12 December 2016, the applicant received a letter from Superintendent Windeatt confirming that he had been suspended from duty with pay "for a maximum period of 14 days" due to allegations of misconduct involving breaches of the Code of Conduct and the FB Regulation. The letter stated: Following Retained Firefighter (RetF) Rachael Fullick's decision to not sign the "Gartan Availability Agreement 349 Station" that you drafted in or about the end of September 2016, you engaged in behaviour and conduct that could be construed as bullying harassment and intimidation, demonstrated by: 1. In or around the beginning of October 2016, one day prior to our RetF Fullick taking leave you contacted her by phone and made the comments to her that included "you are letting the team down" and that trying "her hardest wasn't good enough" and you asked her why she was not going to sign the Gartan Availability Agreement 349 Station agreement 2. Approximately 3 weeks ago, at a Zone Commanders drill, you told RetF Fullick that she could not join the drill as she was late, and furthermore she could not join the drill as she was marked unavailable. 3. Following a call out during the early morning hours after the Zone Commanders drill (approximately 3 weeks ago), while the crew who were in attendance were standing near the lockers, you advise the crew that the agreement had been spoken about at the zone commanders drill and that you were now going to give RetF Fullick a chance to explain to everyone why she did not sign it. 4. At approximately 10:00 AM on 17 November 2016 you contacted RetF Fullick by phone. During this call you again asked RetF Fullick about her decision relating to the "Gartan Availability Agreement 349 Station" and whether she was still refusing to sign it, to which she replied that she still felt the same and wasn't going to sign it. 5. At 12:12 PM on 17 November 2016 you drafted and sent an email to all crew members that included inappropriate and intimidating statements that were directed at the "one team member" who had not signed the "Gartan Availability Agreement 349 Station". I am of the opinion that you have engaged in misconduct and that a failure to suspend you may pose a risk to the safety and protection of other people. …
On or about 16 March 2017 the applicant received a letter dated 9 March 2017 which contained 11 allegations of misconduct. Many of these allegations contained sub-allegations, and many of these sub-allegations contained multiple factual assertions.
On or about 31 October 2017 the applicant received a letter from the respondent setting out the findings of the allegation including that eight of the allegations were sustained in full or in part. The letter also set out the disciplinary action being considered by the respondent.
On or about 23 July 2018 the applicant received a letter from the respondent terminating his employment on the basis of the sustained misconduct.

[4]

Allegation 1 - bullying and intimidation

Allegation 1 is: … over the course of several years while Captain of 349 Station Kurri Kurri [the applicant] engaged in repeated and unreasonable behaviour that has been directed towards one member, or a group of members, that constitutes bullying, harassment and/or intimidation.
The respondent alleges that Allegation 1 is demonstrated by 12 sustained sub-allegations (identified as (a), (b), (c), (e), (f), (g), (h), (i) (j), (k), (n) and (o)) and partially sustained sub-allegations ((k) and (m)).
It is necessary to consider: 1. whether the applicant engaged in the conduct set out in the 12 sub allegations (some with further sub-paragraphs); and 2. whether this conduct constituted "bullying, harassment and/or intimidation".
The Commission must be satisfied that both limbs are made out. As to the second, this is an objective test. It is not sufficient that someone became upset, or made a complaint about the conduct; the Commission must be satisfied that the applicant conducted himself in an objectively unreasonable manner such that his conduct constituted bullying, harassment and/or intimidation.
The Preventing and Responding to Bullying and Harassment Policy ("the Bullying and Harassment Policy sets out the definition of "bullying" and provides examples of what is and is not bullying: [20] Workplace bullying refers to behaviour which is offensive, intimidating, intended to humiliate or threatening and is directed at an employee or a group of employees, and occurring in the course of, or related to, work in FRNSW. The official definition of bullying provided by Safe Work Australia is: "repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety". Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time. Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening. A single incident of unreasonable behaviour is not considered to be workplace bullying however it may have the potential to escalate and should not be ignored. … While some workplace bullying may be direct and involve verbal abuse and physical violence, bullying can also be indirect and involve subtle intimidation. Workplace bullying can be carried out via letters, emails, telephone, text messages or via social media platforms.
"Intimidation" is not defined in the Bullying and Harassment Policy. The Macquarie Dictionary Online defines "intimidate" relevantly as "to force into or deter from some action by inducing fear".
The Bullying and Harassment Policy sets out the definition of "harassment" as: Harassment is any form of behaviour that· • is unwanted, unwelcome or unsolicited; • offends, humiliates or intimidates; and • targets the person because of their sex, pregnancy, race, age, marital or domestic status, homosexuality, disability, transgender (transsexual) status, carers' responsibilities or any other attribute covered by anti-discrimination law. Behaviour which may constitute harassment may include (but is not limited to): • verbal abuse or comments that put down or stereotype people; • telling derogatory or demeaning jokes intended to offend on the basis of stereotyped characteristics; or • making derogatory remarks about someone's race, religion and customs.
In considering each of the sub-allegations under allegation 1 it is necessary to consider whether each sustained sub-allegation in isolation is bullying, harassment and/or intimidation and then to consider whether the sustained allegations are part of a pattern of behaviour that is bullying, harassment and/or intimidation.

[6]

Ms Barrett

Ms Barrett accepted during cross-examination [23] that, at the time of the relevant conversation: 1. she was spending about half her nights at her boyfriend's house in Sawyers Gully, which is further away from the Kurri Kurri Station; 2. she was studying to be a paramedic; 3. she had significant new work commitments; 4. she was not making her percentages, in that she was either missing calls or arriving too late to make the truck; and 5. the applicant told her that she needed to take these factors into consideration, and to consider a transfer to a station closer to Sawyers Gully or leaving.
The applicant admits that he asked Ms Barrett if she had time for her retained firefighter duties and suggested to Ms Barrett that she may wish to consider a transfer closer to Sawyers Gully or leaving the 349 Kurri Kurri station to concentrate on her paramedic career.
Ms Barrett admits that the applicant did not tell her to resign. In her interview with Ms Rogers, Ms Barrett says that during a conversation about her signing the Gartan Availability Agreement the applicant made the following comments: "well, being a paramedic is a fantastic career, Tayla. Maybe you should consider leaving Fire & Rescue." "well, maybe you should consider transferring to Albermain because it's closer." [24]
There is very little difference in the two accounts other than the context described by the applicant. The context is relevant to the question of reasonableness and whether the conduct amounted to bullying, harassment and/or intimidation, rather than the determination of fact.
I accept, based on Ms Barrett's evidence in chief and her answers in cross-examination, and the admissions by the applicant, that Ms Barrett believed that the applicant did not want her at 349 Kurri Kurri brigade. A reasonable person in Ms Barrett's circumstances would have formed this view. Whether a reasonable person would consider the applicant's conduct leading to this view was unreasonable and was bullying, harassment and/or intimidation is considered below at [132].

[7]

Ms Fullick

Ms Fullick describes to Ms Rogers a telephone discussion between her and the applicant after her failure to attend the station without marking herself unavailable, in which according to Ms Fullick, the following was said: The applicant: You're letting the team down. Maybe you're juggling too many balls, and maybe it's time to drop this one. And why are you doing this job? Ms Fullick: Because I love it. The applicant: What do you love about it? Ms Fullick: Everything. The applicant: Well maybe you just can't do what you love. Ms Fullick: Yes, I'm not going to quit. [25]
According to Ms Fullick, the applicant continued to press her about her unavailability.
The applicant's version of the conversation referred to at [112] is [26] : 1. he advised Ms Fullick of her low percentages; 2. Ms Fullick replied "well, I'm not resigning"; and 3. the conversation moved on to the Gartan Agreement, with a possibility that Mr Maxwell said words to the effect of 'life is like juggling' or 'do you think you still have time for this?'.
The applicant submits, this conversation occurred: 1. after Ms Fullick had not attended a call without providing an explanation when she was marked available; 2. in circumstances where this was happening regularly; 3. during a period where Ms Fullick had additional work and carer's responsibilities (in particular, full-time care of her children); and 4. during a period where, on the applicant's uncontroverted evidence, Ms Fullick's percentages were extremely low (13% in August and 16% in September).
There is very little difference between the accounts of the applicant and Ms Fullick other than the applicant's submissions about context and how quickly the applicant moved on from his questioning of whether Ms Fullick still had time to be a retained firefighter to the Gartan Availability Agreement.
In light of the comments I have made about Ms Fullick's evidence at [51] to [53], I have carefully considered Ms Fullick's record of interview. Given the limited differences in the evidence, I accept the applicant's version of the conversation that the applicant suggested to Ms Fullick that the job of retained firefighter may not be the right job for her given her circumstances, and in light of her low attendance, and when Ms Fullick said that she was not resigning, the conversation moved on to the Gartan Availability Agreement. However, I accept Ms Fullick's assertion that, as a consequence of what the applicant said to her, Ms Fullick believed that the applicant did not want her at 349 Kurri Kurri brigade. A reasonable person would have formed this view based on the applicant's comments and conduct. Whether a reasonable person would consider the applicant's comments and conduct leading to this view to be unreasonable in isolation were bullying, harassment and/or intimidation is considered below at [132]. It is also considered in the context of Alleganad tion 1 at [290] - [292].

[10]

Was it unreasonable in the circumstances for the applicant to ask these firefighters about their commitment to their job?

It is not unreasonable for a manager to speak to a staff member with a level of performance such as Mr Murray's, about their ongoing commitment to their job. The applicant understood that managing availability and attendance was a key part of his role.
Relevantly, the Bullying and Harassment Policy sets out "What is not workplace bullying?" [32] and includes: Legitimate management decisions or actions taken in a reasonable way, including" …. • Holding reasonable discussions with an employee about leave and/or attendance issues.
In relation to Mr Mifsud, in the context of safety-critical work, as a fire captain the applicant would be fairly criticised for not raising Mr Mifsud's undone boots and attitude with Mr Mifsud in the manner the applicant did.
On the basis of the material before the Commission, the conduct of the applicant in relation to Mr Mifsud and Mr Murray was reasonable and appropriate management action.
I accept that, as a consequence of what the applicant said to Ms Barrett and Ms Fullick and his conduct towards them, Ms Barrett and Ms Fullick believed that the applicant wanted them to leave the 349 Kurri Kurri retained fire brigade.
The applicant says that it is relevant that he was questioning Ms Barrett and Ms Fullick in a manner not dissimilar from Superintendent Windeatt who sent an email to the team on 21 December 2015 headed: "Re: Missing Equipment" [33] , in which the Superintendent wrote: "… Remember if you have lost the 'why' factor to joining and belonging, remember my suggestion of resigning."
In the context of Ms Barrett and Ms Fullick having difficulty meeting their availability, asking these firefighters about their commitment to Fire and Rescue and the time they had available to give to retained firefighting, was not bullying, was not because of an attribute covered by anti-discrimination law and therefore was not harassment, nor was it intimidation, and is in line with the Superintendent's message referred to at [131] above. However, as this conduct is alleged as part of the broader Allegation 1, I consider below at [289] to [292] whether the applicant's conduct considered in respect of this sub-allegation is part of a pattern of behaviour that is bullying, harassment and/or intimidation as alleged.

[12]

Sub-allegation 1(c)

Sub-allegation 1(c) is: During 2015/2016 the applicant established a roster for the cover of Christmas Day, Boxing Day and New Year's Day without the consultation of members, and insisted that they had to make themselves available regardless primary employment and family responsibilities
This sub-allegation was found to be sustained in full.
The applicant admits to sending an email on 12 October 2015 the contents of which are set out at [69].
A roster for Christmas Day, Boxing Day and New Year's Eve was first established in 2012 following a team meeting to address the issue. The applicant says that the roster was then reviewed each year at a team meeting in October until team meetings were cancelled in 2016, [36] and because he could no longer call team meetings the Christmas roster could not be reviewed at team meetings from that time. However, the email relied on by the respondent was sent in 2015 before the applicant says the team meetings were cancelled.
The respondent alleges that the roster was established without consultation, but the respondent also criticises the applicant's claim that the roster was a decision of an earlier crew and submits that the applicant "should not be permitted to defer responsibility or culpability to the crew for decision making, or enforcement of those decisions". The respondent's written submissions state: 8. …The introduction of a roster or other matters regulating the attendance requirements of staff is not the crew's responsibility; it falls clearly within the Captain's duties. Further, at that time, team meetings were not an authorised or regular occurrence at the station, and should never have been used by the Captain to devolve his own duties and responsibilities for the management of the station. RetF Hampton, RetF Day, RetF Legovich and RetF Barrett all give evidence that they felt they were required to make themselves available, regardless of other responsibilities, including permanent or primary employment. As the Captain of the station, Mr Maxwell should not be permitted to defer responsibility or culpability to the crew for decision making, or enforcement of those decisions. (Footnotes omitted)
There is a difference between consultation and decision-making but in light of the respondent's submissions on this matter it is understandable if the applicant did not understand his obligations.
Although the applicant consulted with crews in previous years and asserts that he would have done the same in 2015 and 2016 if team meetings were not cancelled, the applicant's own evidence establishes that the applicant declared the roster in 2015 without consulting with crew members about their availability. The question is whether this was reasonable in the circumstances.
Clause 28 of the Award extracted at [63] above, allows for retained firefighters to declare their availability within certain parameters and subject to certain conditions, and leaves open the potential that the station may not have a sufficient number of retained firefighters with declared availability on Christmas Day or any other day. It is clear from his evidence that the applicant did not consider that such an outcome would be satisfactory, and he acted in order to prevent there being insufficient availability in accordance with what earlier crews had agreed.
Ms Legovich says that the applicant's superior, Superintendent Windeatt was made aware of both the roster and the conflict around it, including Ms Legovich's complaints, and that Superintendent Windeatt came to the station and his response was to tell her [37] : "Ken has put this together. Let's just make it happen."
Superintendent Windeatt's affidavit is silent on this issue. There is no evidence that the matter was discussed with Superintendent Windeatt during the investigation. As there is no contradictory evidence, I accept the evidence of Ms Legovich on this matter.
In cross-examination, Superintendent Windeatt said that "potentially" he had reminded the applicant of his obligation to make sure the station was covered by the retained crew as much as possible [38] and he agreed in cross-examination that Captains are discouraged from allowing a situation where shortages are created and that it has been communicated across the State that the expectation is that they will try to manage their staff to minimise shortages. [39]
In these circumstances, in particular where the roster arrangement had been used in previous years and Superintendent Windeatt knew about the roster, the publication of the roster without consultation could not, in my view, on its own, be misconduct.
The more substantive aspect of the sub-allegation is the allegation that the applicant "insisted" that crew members made "themselves available regardless of primary employment and family responsibilities". The respondent says that the evidence of Ms Hampton, Ms Day, Ms Legovich and Ms Barrett is that they were required to make themselves available.
Ms Hampton told Ms Rogers: Ken would give us a time … it might have been six until one, or six to 12, and 12 to six. You had to pick a box. Then I think the last couple of years it went to, you either of one 24 hours Christmas, or you do 24 hours New Year's Eve, day. I'm not really sure which one. [40]
Ms Hampton says that she arranged to be available for all of Christmas Day to cover for Ms Day to allow Ms Day to go home to Adelaide. She says that despite this she received an email from the applicant before Christmas in 2015 stating she was "letting the crew down" [41] . Ms Hampton said that the applicant queried her about her declared hours around Christmas in 2015 which were 16 hours on Christmas Day, 18 hours on Boxing Day, and 20 hours on New Year's Day, at the end of which Ms Hampton says: … he actually wrote me a message - and email back, and said that's fair enough Kim. I apologise… [42]
The cross-examination of Ms Hampton on this subject was limited to the apology from the applicant, an apology which recognised that Ms Hampton had declared availability for a significant number of hours. Nothing was put to Ms Hampton in cross-examination which contradicts the position that the applicant required Ms Hampton to be available on these days.
On the basis of Ms Hampton's statements to Ms Rogers about availability in the Christmas period, I accept that Ms Hampton believed she was required to make herself available and that the applicant "insisted" Ms Hampton made herself available as alleged in sub-allegation1(c).
Ms Day's statements to Ms Rogers about the Christmas roster [43] establish: Ms Day did not think a roster was needed; the roster had been around for four or five years; Ms Day took annual leave in 2015 to avoid the roster; and if there was to be a roster the times should allow for firefighters to enjoy one meal on Christmas Day.
Although I note that Ms Hampton covered for Ms Day, there is no evidence that the applicant insisted that Ms Day make herself available in the period, for example by the applicant refusing a request from Ms Day for annual leave. Therefore the evidence before the Commission does not establish that the applicant "insisted" Ms Day made herself available as alleged in sub-allegation1(c).
Ms Legovich told Ms Rogers about her experience with the Christmas roster [44] in 2015 and said: … due to my award, I know they can't tell me when I have to be available. I just have to give a certain amount of availability and meet my percentages. So even though I understand that and I understand why he was putting this in place so we can all enjoy our Christmas and New Year, I could not do exactly what he said. [45]
Ms Legovich says she tried to arrange her competing work commitments to give 12 hours on New Year's Eve but she could not commit to what she says the applicant was asking. Ms Legovich told Ms Rogers she then went to her union for help [46] :
Ms Legovich says she emailed her Deputy Captain, Jamie Chapple, over a two month period about the roster.
Ms Legovich says that the matter then became nasty between the union and the applicant.
Having considered carefully the transcript of Ms Legovich's interview with Ms Rogers and her cross-examination, I accept that: Ms Legovich could not comply with the roster set out in the applicant's email because of her personal and other work commitments; and after the involvement of the union, Superintendent Windeatt and others, Ms Legovich found someone else to cover her availability on New Year's Eve 2015.
The content of the transcript of interview does not establish that the applicant "insisted" Ms Legovich made herself available in 2015/2016 as alleged in sub-allegation 1(c), but does establish that she felt significant pressure to comply with the roster and if she could not, to find her own cover.
Ms Barrett told Ms Rogers about the Christmas roster: … [the applicant's] requirement of all of us were that - so Christmas Day, they split in half, which I understood that. That was a good idea, although the way that it was done wasn't the nicest. … I believe all the parents should have been offered you guys should work - have the morning off - all the parents that have been around for Christmas morning and - the ones with young children and anyone with older children or no kids would cover in the morning. … It divides pretty much half and half kind of. We had to try and find somebody to cover for us. So they want the hassle that every single mum or every single dad who had to work the morning was messaging all us people that didn't have kids to try and cover for them. It was kind of-everyone was like dibs, you first, because I want the morning off. It got a bit nasty and the fact that, after that, they expected us Boxing Day and New Year's. If you report to Deputy Captain Cockburn, you will have Boxing Day-you will be on call Boxing Day. If you report to Deputy Captain Jamie Chapple, you will be on call New Year's Eve. I work both Boxing Day and New Year's Eve and New Year's Day. So for the people in retail who have to work all of these days as well and I'm not going out partying, having a great time I call these people-all the rest of the station are, is expected to be on call while I was at work or the one day that I would have off, I had to be on call. But I didn't get to spend any time with my family were a lot of the people at our station at work in the mines and work in industrial and all that sort of stuff-they get three weeks off over Christmas, they get two weeks off over Christmas. I don't understand why, when this is our busiest time of year, why couldn't they be like, look, some of the staff members work retail, this is the busiest time and they don't see their family in between both employments, give them some slack. But no, I was expected to work think actually, on the sly, went off call and didn't say anything, because there were crewmembers around some pretty sure I waited to the last minute and I just marked off and I was never ever spoken to. Although Anna jumped up and down-because she works security, she works Christmas Eve, she works-I think she has to work Christmas Day some years where she just patrols the century make sure no one is going to still stop. She works Boxing Day. She works New Year's Eve and New Year's Day. How is she supposed be in two places at once? … It was unrealistic of them to believe us and it was kinda but they didn't really believe that we had to work it either. It was like your boss wouldn't make you do that. If like you have no clue what it's like work like we don't breathe. [47]
Ms Barrett did not think the requirement to be available for half of Christmas Day in the way the roster prescribed was fair or reasonable. However, Ms Barrett "waited to the last minute and … just marked off and … was never ever spoken to". Accordingly, the content of the transcript of interview does not establish that the applicant "insisted" Ms Barrett made herself available in 2015/2016 as alleged in sub-allegation 1(c), but does establish that Ms Barrett felt pressure to comply with the roster.
I accept that the applicant issued a roster for retained firefighters without consultation with them. The evidence from the applicant, Ms Day, Ms Legovich and Ms Fullick establishes that the applicant expected that the retained firefighters would comply with the published roster or find alternative cover, and pressed them to do so, even though in Ms Barrett's case she did not.
I am satisfied that the evidence presented to the Commission establishes that the applicant "insisted" that Ms Hampton make herself available but does not establish that the other firefighters set out in sub-allegation 1(c) make themselves available, rather the applicant insisted that the firefighters make themselves available and if they could not, they must find alternative cover.
Whether the applicant's behaviour is bullying, harassment and/or intimidation and whether it is misconduct on which the respondent could rely to dismiss the applicant must be considered in the context of the applicant attempting to keep sufficient numbers of firefighters with declared availability at the 349 Kurri Kurri station over the Christmas and New Year's period.
While I accept that the applicant was trying to ensure coverage for the station, his behaviour in requiring the firefighters to be available or otherwise to find cover for themselves was unreasonable in the circumstances and constitutes bullying.
The applicant's behaviour was not intimidation, nor was the conduct undertaken because of an attribute covered by anti-discrimination law and as such, it was not harassment.
However, even though I am satisfied that the applicant's email and the surrounding communications constitute bullying, given the endorsement by Superintendent Windeatt, it is unjust and unreasonable for Fire and Rescue to rely on this conduct as a basis to dismiss the applicant three years later.

[13]

Sub-allegation 1(e)

Sub-allegation 1(e) is: During 2016 the applicant repeatedly singled out crewmembers, RetF Tayla Barrett and RetF Dale Albrew, who had not yet attained their MR license, and used this as a reason to withhold operational tasks, such as operating the hose at an incident.
This sub-allegation was found to be sustained in full.
This allegation is that the applicant "singled out" Ms Barrett and Mr Albrew because they did not have their MR License, by preventing them from using the branch, or hose, at incidents, which Mr Albrew agreed, was the "fun part" of fighting a fire [48] .
The applicant admits that he allocated tasks based on which staff held MR Licences. The MR License allows retained firefighters to drive the truck and operate the pump.
The applicant says that although it is not a requirement that the hose operator has an MR Licence, he preferred those firefighters who had their licence for allocation of that task because operating a hose is a more skilled role, and requires an understanding of how the water pressure is regulated.
The alleged denial of access to the branch in Mr Albrew's case, involved a single incident in which Mr Albrew admits he jumped out of the truck and grabbed the branch without being tasked with this job by the incident controller, and was then directed by the incident controller to give it to the correct crew member. [49]
The alleged denial of access to the branch in Ms Barrett's case, is not true; Ms Barrett agreed that there were circumstances where she was tasked with the branch, including in preference to crew members with their MR licence. [50]
On the evidence before the Commission, I find that the applicant considered the fact that Mr Albrew and Ms Barrett did not hold their MR licences as a relevant consideration when deciding whether they could operate the branch. On that basis, sub-allegation 1(e) is partially sustained. However, the evidence before the Commission does not sustain a finding that the applicant inappropriately "singled out" the two firefighters or that the conduct was bullying, harassment or intimidation.

[14]

Sub-allegation 1(f)

Sub-allegation 1(f) is: On 2 March 2016, [the applicant] sent an email to all crew that singled out RetF Tayla Barrett for her fingernail length
This sub-allegation was found to be sustained in full.
This sub-allegation relates to an email sent by the applicant on 2 March 2016, which states: Hi Everyone, I would like to bring your attention to FRNSW Infection Prevention and Control Manual, which states: 18.1 Fingernails and jewellery Firefighters should keep the fingernail short and scrupulously clean. Any personnel who may be involved in patient care, example first aid, should not wear artificial fingernails or nail extenders or nail polish. Fingernails often harbour microorganisms and are commonly missed during hand hygiene. For all firefighters wrist and other jewellery should be kept to a minimum. All items must be able to be removed easily during duty. In the interests of your health, the health of your fellow firefighters and community members we may assist, please follow these instructions carefully. …
The respondent says: 10. RetF Barrett gives evidence that she felt singled out by Mr Maxwell in his email regarding fingernail length (allegation 1(f)). Mr Maxwell states that he had noticed two other crew members with painted nails or false nails. Mr Maxwell sought to justify this by claiming it was in relation to three female firefighters, not just one, does not negate the intent of the email, which was sent to all crew to address an issue that only concerned, at most, three firefighters, and was a selective use by Mr Maxwell of the FRNSW policies to intimidate particular staff. Under cross-examination, the FRNSW employees admitted that fingernail length could potentially be a safety issue, but this reasoning proposed by Mr Maxwell for his concern was negated by the evidence that the crew wore PPE gloves, and doesn't justify any concerns regarding painted nails. (Footnotes omitted)
The applicant says that there is no dispute that the email is an accurate summary of a Fire and Rescue policy which was provided to the applicant by a Research Officer in the Operational Improvement area [51] . However, Superintendent Windeatt says: "FRNSW has no specific policies on fingernail length" [52] and he confirmed this to me when questioned at the hearing.
In her interview with Ms Rogers [53] and in cross-examination, Ms Barrett agreed that the acrylic fingernails posed the risks anticipated by the applicant [54] but she was aggrieved because in her view the applicant sought out the guidelines as a means of targeting her.
On the basis of the evidence before the Commission, I accept that the email is an accurate summary of a Fire and Rescue instruction that was provided to the applicant by the Operational Improvement area of Fire and Rescue and that the applicant reasonably understood and believed that this instruction was a Fire and Rescue policy.
The email does not identify Ms Barrett. The email does not name any individuals, does not use gendered language, and does not contain any inappropriate content.
Ms Rogers sets out the following in the Investigation Report: • Capt Maxwell named three female firefighters who he claims had started wearing false nails in the 12 months preceding the email, and as such he sent this email to all staff. • Given this statement by Capt Maxwell, I find there is sufficient evidence to support the allegation that the intent of the email was to single out a crew member. [55]
While I agree with Ms Rogers that in ordinary circumstances, addressing issues of this type by group email is poor management practice [56] , I am not convinced to a level of reasonable satisfaction that the applicant was "singling out" Ms Barrett. The applicant was attempting to deal with what he saw as a safety and hygiene problem that applied in his brigade. The applicant had observed on Ms Barrett and two other firefighters nails he thought were a safety and hygiene risk and the purpose of the email was to deal with this issue not to "single out" Ms Barrett.
On the evidence before the Commission, I find that sub-allegation 1(f) is not sustained.

[15]

Sub-allegation 1(g)

Sub-allegation 1(g) is: Following a discussion with part of the crew in approximately September 2016, or thereabouts [the applicant] initiated and supported a "GARTEN Availability Agreement", and required each member to sign it. [The applicant] then applied pressure to members to sign the agreement saying words to the effect of: i. "are you a team player?"; ii. "this is the crew's decision"; and iii. if you do not agree with this do you want to work for Fire and Rescue anymore"
This sub-allegation was found to be sustained in full.
The background to this sub-allegation is set out at paragraphs [69] to [84] above.
In defending his conduct with respect to the Gartan Availability Agreement and the criticism of its contents, the applicant relies on his assertion that the Agreement was formulated by the crew. The applicant says that he arranged a meeting for all firefighters for the purpose of dealing with the tension created by the Gartan Availability system, and, that at that meeting the team members discussed and agreed the contents of the Agreement as a way to resolve these tensions.
The respondent says: …. Whether or not it was Mr Maxwell who suggested each of the items on the list agreed to by the crew at the meeting, responsibility for the decision making, and the consequent enforcement attempts by the other employees on those not in agreement, lies with the Captain. Mr Maxwell's attempt to defer responsibility to the crew for singling out RetF Fullick after a call out to explain why she did not sign the Garten Availability Agreement must therefore be rejected. Mr Maxwell advised the crew prior to the agreement being made that they would be bound by whatever decision was made (whether they were in attendance or not and whether they agreed on not). Although Mr Maxwell says he never pressured anyone to sign the Garten Availability Agreement, RetF Fullick, RetF Barrett, RetF Albrew all state they felt pressured by Mr Maxwell to sign the agreement and their evidence should be preferred. Similarly, RetF Fullick's evidence should be preferred to that of Mr Maxwell in relation to the conversations with RetF Fullick regarding the Gartan Availability Agreement. (Footnotes Omitted)
Even if the applicant's assertion is accepted, that the crew came up with the Agreement through consultation, the applicant accepts that he initiated the meeting which resulted in the Agreement. Further, the applicant does not deny that he supported the Agreement.
A key aspect of this sub-allegation is whether the applicant required members to sign the Gartan Availability Agreement; and/or applied pressure to members to sign the Agreement, and whether such conduct was appropriate in the circumstances.
Five crew members: Ms Fullick; Ms Barrett; Mr Albrew; Ms Hampton; and Mr Murray were not at the meeting on 26 September 2016 when the Gartan Availability Agreement was drafted and signed. Each of these crew members, other than Ms Fullick ,ultimately signed the Gartan Availability Agreement.
The applicant says that Mr Murray's record of interview does not even allege that the applicant spoke to him about the Gartan Availability Agreement at all. The applicant says further, that Mr Albrew, Ms Hampton, nor Mr Murray complain of the kind of pressure alleged by Ms Barrett.
In his interview with Ms Rogers, Mr Albrew does not claim that he was subjected to pressure to sign the Gartan Availability Agreement. Mr Albrew does set out the pressure he says was applied to him to make himself available for 60 hours a week [57] .
In her interview with Ms Rogers, Ms Barrett says that the applicant pressured her to commit more time to her retained firefighting duties and she felt pressured not to take weekends away. [58] Ms Barrett says that after a drill one night following her return from a holiday, she was pulled aside by the applicant to discuss the Gartan Availability Agreement. Ms Barrett said she had questions about the Agreement and she told Ms Rogers the following: Ms Barrett: … [The applicant] just explained each bit to me. I'd ask my questions about each bit. He would say, "This is what the crew has decided." But I knew it wasn't a crew decision. He comes up with his ideas and pressures everybody to agree. So I knew that it wasn't a group decision. And pretty much forced me to sign the piece of paper. He will say that I signed it of my own will. But I had no intention of signing that bit of paper. Ms Rogers: Did you tell him that you didn't want to sign it? Ms Barrett: I was at the point that I was really - I just couldn't say no to him because I was scared. I would just say yes even though in my heart I'm screaming. Like, I do not want to sign this bit of paper. I don't agree with stuff on it but I did not have that strength anymore to be like, "no. I'm not doing it." So I Just signed it. Ms Rogers: so what kind of things was he saying to you when he wanted you to sign it? What were some of the words? Ms Barrett: Pretty much, like, "This is the crew's decision. Are you a crew team member?" "If you do not agree with this, do you want to work for Fire and rescue anymore?" My last probably two months with Kurri, I-all the time I would hear, "maybe this isn't the right job for you, Tayla." Ms Rogers: And who would say that to you? Ms Barrett: Ken. I got into university to be a paramedic. I wanted to stay with Fire and Rescue. They have a little downtime in the ambulance service where they work for days on in five days off. I have full intention of working with fire and rescue all through university and as I am a paramedic. I don't have any intention of leaving. But he's saying, "Well, a paramedic is a fantastic career Tayla. Maybe you should consider leaving Fire and Rescue." It's like, I don't want to leave. I want to stay in this job. I like this job. I want to stay in. And I kept-every excuse he could find to turn back on me to leave, he liked. And then when I-then there was one day when he said to me, "where are you living?" I said "at Josh's house." I was honest. He goes, "well, maybe you should consider transferring to Abermain because it's closer." He had the biggest grin on his face when he signed that transfer paper. He was so happy to get rid of me that day. The second-the day I walked out of that station I think he was - he was having a party, RetF. Because you want to be out that station for ages. [59]
As set out above at [46] - [49] I have taken care when considering Ms Barrett's evidence. I have considered the discussion Ms Barrett says occurred with the applicant about her signing the Gartan Availability Agreement which I also considered in respect of sub-allegation 1(a) above. Ms Barrett did not provide a complete first person account of the conversation to Ms Rogers but her answers in cross-examination were consistent with what she had told Ms Rogers. I have also taken into account Ms Barrett's admissions in cross-examination about her emotional state. In respect of this matter there was nothing to cause me to believe that Ms Barrett was not telling the truth about her interactions with the applicant as set out at [199]. Accordingly, I accept that the applicant applied pressure to Ms Barrett to sign the Gartan Availability Agreement.
Ms Fullick told Ms Rogers that: Deputy Captain Cockburn first showed her the Gartan Availability Agreement; asked her to have a look at it and see if she wanted to sign it; she said to him: "Well, I can't sign it" [60] because she could not commit to 60 hours availability per week; and Deputy Captain Cockburn told her that she needed to speak to the applicant about this [61] .
Ms Fullick told Ms Rogers that the applicant rang her and told her she was letting the team down and she responded that she was trying her hardest but she "had missed a couple of calls, early morning calls" [62] because she would have left her daughter at home alone and she did not have credit to get on the Gartan Availability system to find a substitute. Ms Fullick said that the applicant told her "Maybe you're juggling too many balls, and maybe it's time to drop this one. And why are you doing this job?" and she responded to this the effect of: "Because I love it" and the applicant then saying: "Well, maybe you just can't do what you love" and Ms Fullick responded to this saying: "I'm not going to quit."
Ms Fullick says that the applicant asked about the Gartan Availability Agreement and she told him that she could not commit to 60 hours and she says the applicant then gave her "a bit of a lecture about it" [63]
As set out above at [51] - [53] I have taken care when considering Ms Fullick's evidence. Ms Fullick did not provide a complete first person account of the conversation but Ms Fullick's answers in cross-examination were consistent with what she had told Ms Rogers. In respect of this matter there was nothing to cause me to believe that Ms Fullick was not telling the truth. Accordingly, I accept that Ms Fullick felt pressured to sign the agreement.
On the basis of my determination as to the interactions between the applicant and Ms Fullick and the applicant and Ms Barrett, I find that the applicant did apply pressure to Ms Fullick and Ms Barrett to sign the Gartan Availability Agreement as set out in sub-allegation 1(g). In all of the circumstances, this behaviour is unreasonable and constitutes bullying. This behaviour was not intimidation or harassment.

[16]

Sub-allegation 1(h)

Sub-allegation 1(h) is: Following … RetF Rachael Fullick's decision to not sign the "Garten Availability Agreement 349 Station" document that was drafted by [the applicant] in or around the end of September 2016, [the applicant] engaged in behaviour and conduct that constitutes bullying, harassment and intimidation. This was demonstrated in the following way: i. In or around the beginning of October 2016, … contact[ing RetF Fullick] and [saying] words to the effect of, "you are letting the team down" and that trying "her hardest wasn't good enough" and asked her why she was not going to sign the "Garten Availability Agreement 349 Station". ii. At a Zone Commanders drill held at the end of October or the beginning of November 2016, [the applicant] told RetF Fullick that she could not join the drill as she was late, it is noted that she was 4 minutes late, and furthermore she could not join the drill as she was marked unavailable. iii. Following a call out …. at the end of October 2016 [in front of other crew members the applicant] singled out RetF Fullick and [asked] .. why she would not sign the "Garten Availability Agreement 349 Station" … iv At approximately 10:00am on 17 November 2016 you contacted RetF Fullick by phone. During this call you again asked her about her decision relating to the "Garten Availability Agreement 349 Station", and whether she was still refusing to sign it. v. At 12:12pm on 17 November 2016 you drafted and sent an email to all crew members that included inappropriate and intimidating statements that were directed at the "one team member" who had not signed the "Garten Agreement 349 Station," effectively singling out RetF Fullick as the "one person who refuses to cooperate ...
This sub-allegation was sustained in full.
I have accepted Ms Fullick's account of the telephone conversation with the applicant in respect of sub-allegation 1(g) in which she says that the applicant said "you are letting the team down" and "her hardest wasn't good enough" and asked her why she was not going to sign the Gartan Availability Agreement. I also accept the particulars alleged in sub-paragraph 1(h)(i).
The applicant admits that he told Ms Fullick she could not attend the drill when she was marked unavailable and arrived late as alleged in sub-paragraph 1(h)(ii). The applicant says this is reasonable management action in circumstances where: 1. he had been advised, and believed, that as a matter of Fire and Rescue policy persons marked unavailable could not perform duties [64] and the respondent led no evidence contradicting this; and 2. there are rational reasons why a fire station would need to have strict policies on punctuality, consistently applied.
On the basis of the evidence before the Commission, I accept the applicant's explanation for his behaviour that he was applying what he understood was the policy. In those circumstances, the applicant's conduct was not misconduct.
The applicant says as to sub-paragraph (iii): 1. crew members raised with him their concerns about Ms Fullick's refusal to sign the Gartan Availability Agreement when Ms Fullick was not present; 2. at their request he raised the matter when Ms Fullick was present at the next opportunity; 3. Ms Fullick explained her reasons; and 4. these reasons were accepted by the crew members and the applicant.
The applicant deposes to the circumstances of raising the Gartan Availability Agreement with Ms Fullick at the call out in October 2016 in his first affidavit: 159. I recall some of the crew were very unhappy with the other crew members' commitment to the station, because not everyone was not following the agreement the team had put together. 160. I recall a conversation with all crew members present at the Zone Commanders drill about suspending the agreement. The crew members present were adamant that the agreement continue. I recall RetF Tim Wilkinson and RetF Stacey Day being particularly upset by this. RetF Mifsud and RetF Redfern suggested that RetF Legovich and RetF Fullick is given the opportunity to discuss the Agreement like everyone else had the opportunity at the team meeting. 161. On the advice from Jan McGinley and Jennifer Williamson of Workplace Standards I asked RetF Fullick for her thoughts on the Agreement. I did not ask her to explain why she would not sign it; instead, I wanted to give her an opportunity to raise any issues and discuss it with the team. 162. I took the opportunity after a callout to explain that we had discussed the availability agreement, after the Zone Commanders Drill and that the crew members wanted to give firefighters RetF Legovich and RetF Fullick an opportunity to put in their thoughts. I asked RetF Legovich and RetF Fullick if they would like to give their thoughts on the agreement. I did not ask RetF Fullick to explain why she did not sign it. I wanted to give them an opportunity to raise any issues and discuss it with the team. 163. I went around the room, and asked each crew members if there was anything they would like to ask or say to RetF Fullick and RetF Legovich. 164. While this discussion was happening, the phone rang in the watchroom. I went to take the call. 165. When I returned the atmosphere in the room had changed. I did not hear what was discussed. I did not re-engage that conversation.
The applicant seeks to explain his behaviour in asking Ms Barrett why she did not sign the Agreement, on the basis that crew members raised with him their concerns about Ms Fullick's refusal to sign the Gartan Availability Agreement when Ms Fullick was not present and, at their request, he raised the matter at the next opportunity when Ms Fullick was present.
Mr Wilkinson who "thought the agreement was quite good" [65] told Ms Rogers that it was Mr Redfern's idea that Ms Fullick should explain to the team why she could not sign the Gartan Availability Agreement. This is consistent with the applicant's evidence.
Mr Redfern's evidence about the meeting is not inconsistent with Mr Wilkinson's evidence but Mr Redfern says that at the meeting "Ken was [doing] all talking, and … Ken brought it up" [66] . The applicant's own evidence is: "I went around the room, and asked each team member …" On this evidence, the applicant was, at least for some of the conversation, controlling it.
I do not agree with the applicant that in order to find that the applicant's conduct constituted "bullying, harassment and/or intimidation" requires me to find that "there is something inherently improper about asking a crew member to sign up to a station agreement about managing availability". This ignores the fact that Ms Fullick and Ms Legovich, on the applicant's own evidence, were required to explain their reasoning to the group, who, also on the applicant's own evidence, had raised concerns about Ms Fullick not signing the Agreement. Ms Fullick and Ms Legovich are not answerable to the crew and should not have been put in this position.
I agree with the respondent that the applicant cannot defer responsibility to the crew for singling out Ms Fullick in the manner that he did. Raising the matter in front of other crew members, regardless of whether the Gartan Availability Agreement was drafted by the crew and regardless of the crew's concerns about team members' willingness or otherwise to comply with the Agreement was inappropriate. Further, whatever the genesis of the idea to ask Ms Fullick about her refusal to sign the Agreement, the applicant was the Captain of the brigade, and he was responsible for protecting Ms Fullick from humiliation and intimidation in that environment [67] . Sub-paragraph 1(h)(iii) is sustained.
The applicant and Ms Fullick give different accounts of the phone call on 17 October 2016 that is the subject of sub-paragraph (iv). In his interview with Ms Rogers, the applicant said that he did not mention the Gartan Availability Agreement during the call and that he did not discuss the Agreement with Ms Fullick after their conversation on 16 October 2016 [68] .
Ms Fullick's evidence that the applicant asked her about the Gartan Availability Agreement during the call, is to be preferred because the phone call took place just over two hours before the email referred to in sub-paragraph (v) and set out at [81] and on the balance of probabilities, the issue of Ms Fullick signing the Agreement was on the applicant's mind when he spoke with Ms Fullick.
Relevant sections of the applicant's email of 17 November 2016 which is the subject of sub-paragraph (v) are set out at [81] above.
The applicant submits that the email: 1. states that one crew member was "refusing to cooperate" with the Agreement; 2. rescinds the agreement accordingly; 3. advises crew that as a result more of the limited allocated duties' hours will be needed to manage availability, and thus less will be available for other duties; 4. does not name Ms Fullick; and 5. clearly shows some frustration on Mr Maxwell's part. In the circumstances, however, a one-off email of this kind is not "bullying, harassment or intimidation" capable of forming a valid reason for dismissal.
The applicant says that at the time the email was sent, Ms Legovich was actively refusing to comply with any aspect of the Gartan Availability Agreement, including not calling other crew to arrange cover if she wanted to change her availability, and was public in doing so, including by abusing a crew member who attempted to ask her to stick by what she had agreed. The applicant submits that on a fairer contextual reading, the email is referring to Ms Legovich, not Ms Fullick.
The applicant told Ms Rogers: "… it had nothing to do with people signing or not signing the agreement. It's about cooperating with the agreement. … it comes down to Anna Legovich's treatment of her fellow firefighters … so it had nothing to do with Rachel Fullick at all. It was about Anna. This is what happens when people see that one person is not playing by the game plan, others go "well why do I bother?" [69]
Despite the applicant's identification of Ms Legovich as the target in his email, the team knew Ms Fullick had not signed the Agreement and the following firefighters gave evidence that they thought Ms Fullick was being singled out: 1. Ms Legovich [70] ; 2. Mr Albrew who initially thought the applicant was singling out Ms Fullick but then thought it was Ms Fullick and Ms Legovich [71] ; and 3. Mr Mifsud said he had a "vague idea" but then went on to say "Rachael [Fullick] did know who she was - who they were talking about" [72] .
The respondent submits that Ms Day also gave evidence that she knew the email was singling out Ms Fullick. The reference given for this submission in Ms Day's evidence is not consistent with this submission [73] .
Mr Redfern said he did not know to whom the applicant was referring as the person "refusing to cooperate" [74] .
The respondent submits that Ms Hampton gave evidence that she knew the email was singling out Ms Fullick. However, Ms Hampton responded to questions from Ms Rogers in the following way: Ms Rogers: …Those emails in September, the one person that wasn't signing, did you know who they were talking about? Ms Hampton: Yeah, Rachael. It was up on the board clearly because he pinned it up on the board so you could see whose sign was on there. Ms Rogers: You could see it. What did you think - what did you think, or did you not think? Ms Hampton: I didn't. I didn't think. I just went, oh, it's just something else. You know. I had a lot going on in my life in that stage, so I just - oh, just another thing, I just thought, yeah. [75]
In light of the applicant's admission that he was singling out Ms Legovich, which he says was reasonable, and the evidence of the other firefighters being equivocal, I accept that the applicant intended to "single out" Ms Legovich and not Ms Fullick.
The conduct alleged in sub-paragraphs 1(h)(i) to 1(h)(iv) of this sub-allegation is made out. Sub-paragraph 1(h)(v) is not made out in respect of singling out Ms Fullick but only because the applicant intended to single out Ms Legovich.
The conduct sustained in respect of sub-paragraph (ii) was reasonable management action.
The behaviour of the applicant is sustained in respect of sub-paragraphs (i), (iii), and (iv), in particular: requiring Ms Fullick to explain to the crew her reasons for not signing the Agreement; sending the email of 17 November 2016 whether it was singling out Ms Fullick or Ms Legovich and the telephone call to Ms Fullick on 17 November 2016 about signing the Agreement was behaviour that a reasonable person would consider humiliating and is unreasonable and amounts to "repeated behaviour" and meets the definition of bullying provided by Safe Work Australia as set out in the Bullying and Harassment Policy.
I do not consider that the applicant was intending to induce fear in either Ms Fullick or Ms Legovich. Accordingly, I do not consider that the applicant's actions were intimidatory.
The respondent has not established that the applicant's behaviour was because of an attribute covered by anti-discrimination law. Accordingly, I am unable to determine that the behaviour was harassment in the sense set out in the Bullying and Harassment Policy.

[18]

Sub-allegation (j)

Sub-allegation (j) is: ….. on [or around] 31 October 2016, at approximately 2:00am ….in the presence of other crew members, [the applicant] singled out Ms Legovitch in front of other crew members and asked her to explain: i. Why she did not wish to participate in a Straight Talk with RetF Hutchinson…; ii. … what her response of "deal with it" in an email to RetF Hutchinson meant. iii. Later … the same day [the applicant] pulled aside RetF Dale Albrew, RetF Wayne Redfern, RetF Stacey Day, and RetF Alex Smith and asked them … why they didn't "back" [the applicant] up during the confrontation the previous night with RetF Fullick and RetF Legovitch.
This sub-allegation was sustained in full.
The applicant says that this sub-allegation contains an incorrect date and relates to the same callout as complained about in sub-allegation 1(h).
The respondent's second outline of submissions does not expressly deal with this sub-allegation but states: 13. RetF Albrew, RetF Redfern, and RetF Day all give evidence that Mr Maxwell asked them why they did not back him. Mr Maxwell's version, that he advised them if they weren't prepared to say something in person, then they shouldn't complain behind there back should not be preferred over three individuals with consistent evidence (allegation 1Q)).
The evidence of Messrs Albrew and Redfern and Ms Day referred to in the submissions referred to above is in respect of sub-paragraph (iii). As this is the case, and as it is evident that sub-paragraphs (i) and (ii) relate to the callout complained about in sub-allegation 1(h), I deal only with sub-paragraph (iii) of this sub-allegation.
Ms Day's recollection of the alleged incident as recounted to Ms Rogers is clear and provides an account of two separate call outs on the one day with Ms Day and Alex Smith attending the second call out. Following that second call out Ms Day says that she and Mr Smith were asked why they did not back up the applicant during the discussion following the call out referred to in sub-allegation 1(h). [76] I accept Ms Day's recollection.
Mr Albrew told Ms Rogers: [b]asically he turned around and had a chat with me, Wayne and said he felt very disappointed that we didn't step in and back him in the whole argument and practically asked for a reason as to why we didn't. … Wayne [gave him a reason] but I don't remember exactly what he said. [77]
During Mr Redfern's interview with Ms Rogers, Mr Redfern described Ms Legovich as "ranting and raving" [78] and provided the following evidence about what happened the next day: Ms Rogers: So when he said to you that he felt disappointed that you didn't back him up, do you think that was fair? Mr Redfern: I could see where he was coming from, because, you know, just trying to have a reasonable discussion, not heated or anything. And basically, some of us just put their heads down and - you know. I sort of looked and then head down, just taking it all in. But other than - I could see where he was coming from, you know, there was no use jumping … to see what the two of them was but make sure that nothing goes over the top. Ms Rogers: During that conversation, did Ken ask you to explain why you hadn't backed him up? Mr Redfern: He may have. I can't honestly remember. [79]
On the bases of Ms Day's evidence and the evidence of Messrs Redfern and Albrew, I have inferred that Messrs Albrew and Redfern were at the earlier call out when the applicant spoke with them as set out above. There is nothing in the evidence that leads me to doubt their evidence on this subject.
In relation to sub-paragraph (iii), I accept that the applicant asked the named firefighters to the effect of why they did not "back" him at the earlier call out. In all of the circumstances, including that he felt that the team members had wanted the discussion but did not participate in the manner he had expected they would, and the discussion went badly, the applicant's behaviour was not good management, but it was not bullying, harassment or intimidation and it was not misconduct.

[20]

Sub-allegation 1 (m)

Sub-allegation 1 (m) is: [The applicant] inappropriately tried to pressure crew members to make themselves available for 60 hours a week, despite the … Award stating that the minimum requirement is 24 hours of availability a week, as demonstrated by: i. Regularly calling crew members and asking them where they are and why they are not available ii. Regular emails circulated to all crew members that singles out specific crewmembers for what [the applicant] claim[s] is not being "the team player"; iii. Regular emails to all crew identifying crew members who have not made themselves available for 60 hours and advising crew that these members have created shortages…
Sub-paragraphs 1(m)(i) and 1(m)(ii) were not sustained. Sub-paragraph 1(m)(iii) was sustained in the Investigation Report and in cross-examination Ms Rogers said that she found sub-allegation 1(m) sustained [80] .
The respondent relies on two emails [81] to substantiate sub-paragraph (iii) of sub-allegation 1(m) and sub-allegation 1(m) generally. These emails both state: We have the following shortages next week. They have been created by the following people. Remember the Team Meeting agreement that you will contact every crew members before creating the shortage. Please ensure this is done ASAP. The more notice you give people, the more likely they are to help you.
The emails then identify the dates and times of the shortages and the team members who created the shortages.
The respondent submits: The emails of 12 and 19 October 2016 speak for themselves in respect of allegation 1(m). Mr Maxwell singled out and identified crew members who had created shortages, in emails to the entire crew. The focus of the emails, contrary to Mr Maxwell's assertions, was not to get people communicating, but to 'call out' those who had created shortages for the purpose of intimidating or shaming the person/s creating the shortage, or to encourage the other crew to coerce the person to 'pull their weight'. Mr Maxwell sought to express this as 'encouraging teamwork', but his methodology was inappropriate and contrary to acceptable management conduct. [82] (Footnotes omitted)
The applicant submits: 84. The emails … make no reference to crew being required to make themselves available for 60 hours a week. At most, there is a reminder of the GARTAN availability agreement, by which crew undertook to a range of commitments to self-manage station cover, including 'try[ing] to put in at least 60hrs of availability per week'. 85. The emails are sent in advance of the relevant shortages: the evident purpose is to, consistent with Mr Maxwell's evidence, encourage communication about upcoming shortages in an effort to self-manage these (which Zone Commander Windeatt confirms is an expectation on all crew). 86. To the extent that the fact that the email names persons who have created a shortage, it is difficult to understand how Fire & Rescue considers this to be 'bullying, harassment and/or intimidation' when the information it contains is a simple replica of what is texted to each employee by the official Fire & Rescue availability system on each occasion. [83]
The applicant's evidence is that he sent the emails, at the suggestion of another crew member; to improve communication; make sure the station was manned; make sure the crew had ownership of the system; and not to single out people.
The applicant says that the information contained in the email is, to a great extent, a replica of what is texted to each employee by the official Fire and Rescue availability system on each occasion. The introductory paragraph of these emails, in particular, the reference to persons who have created the shortages, and the listing of these persons, does single out those persons creating the shortage. Setting out the detail of the shortages created by each individual may have applied pressure to team members to make themselves available for 60 hours a week or to find people to cover for their shortage. In the context of the team members having signed the Gartan Availability Agreement obligating them to try to make themselves available for 60 hours per week, sending an email reminding people of their obligations and applying pressure to comply with the Agreement, was not bullying. Nor was it intimidation or harassment.

[21]

Sub-allegation 1(n)

Sub-allegation 1(n) is: [The applicant] misused [his] position as Captain to inappropriately deny pay to crew members citing the following reasons: i. Turning out, or attending drill when marked unavailable ii. Not paying the Engine Keeper for her weekly duties citing that [the applicant] "didn't invite her" to attend and complete the duties iii. Refusing to pay RetF Day and RetF Legovitch for 1 hour each of additional cleaning duties as they were told to clean the bathroom and the kitchen and in [the applicant's] view hadn't completed the task in the allocated time (it is noted that after a period of time and objections from the retained staff … [the applicant] did eventually approve their pay claim.)
This sub-allegation was sustained in full.
For this sub-allegation the Commission must be satisfied: 1. the affected employees were entitled to be paid; 2. they were in fact denied pay; and 3. the denial was undertaken in such a way as to constitute "bullying, harassment and/or intimidation".
In respect of sub-paragraph (i) the applicant says that Ms Rogers relied on three examples of persons claiming not to have been paid for turning out or attending drills when marked unavailable. The applicant says that these particulars were not in the allegations provided to him. Additionally, Ms Hampton claims to have been refused pay in circumstances where she failed to sign on.
The applicant says that he understood that crew members are not entitled to turn out or attend drill when marked unavailable, and cannot be paid unless they sign on. [84] Mr Windeatt did not respond to this in his evidence and the applicant says that the respondent has not contradicted this and that Ms Rogers made no enquiries one way or another. Ms Rogers was adamant in re-examination by the respondent's counsel that she has no knowledge of matters of this kind.
In these circumstances, the respondent has not met his burden to make out the conduct of the applicant alleged in sub-paragraph (i).
The applicant's second outline of submissions states in respect of sub-paragraph (ii): Refusing Anna Legovich pay 91. Anna Legovich is the engine keeper. Although no longer a position, this is grandfathered. Relevantly, this entitles her to two hours of allocated duties per week to perform engine checks. 92. In 2015, Mr Maxwell decided to combine SIMS and engine checks, to increase the amount of time available. He raised this with Ms Legovich by email on 3 June 2015. She agreed. Although Ms Legovich denied this in re-examination, the email speaks for itself: the denial goes only to her credibility. 93. Mr Maxwell's evidence is that Ms Legovich received a calendar invite to perform combined SIMS and engine checks each week, as engine keeper, and SIMS were otherwise allocated across the week. Between 26 December 2016 and 15 March 2017, Ms Legovich failed to attend on at least five occasions. Her claim to have been refused engine keeping duties must fail (particularly given that she confirmed that she was in fact performing these duties in October 2016). 94. There is no credible evidence to support the allegation that Ms Legovich has been improperly denied pay. The pay record relied on by the investigator - at tab 27- shows 6 pay claims between 10 February 2016 and 3 January 2017 which Mr Maxwell has asked for further information. All but one has been paid. 95. The claim which has not been paid -#3624, on 10 February 2016 -was the subject of an enquiry from Mr Maxwell as to who authorized the activity. There is no evidence of a response. The claim was deleted by a person with ID number 901078 (not Mr Maxwell's number) on 26 July 2016. (Footnotes Omitted)
The respondent's second outline of submissions makes no reference to sub-paragraph (ii).
In the circumstances, I accept the applicant's submissions that the respondent has not met his burden to make out the conduct of the applicant alleged in sub-paragraph (ii).
The applicant's second outline of submissions states in respect of sub-paragraph (iii): Day and Legovich (Hampton) 97. Although the third sub-allegation refers to Ms Legovich, it is in fact to do with an incident where: a. Ms Day and Ms Hampton were tasked with cleaning the kitchen and bathroom, and were allocated one hour each to do so; b. they instead, without seeking approval, decided to do a deep clean of the bathroom; c. on submitting their pay form, they were questioned by Mr Maxwell about why the kitchen had not been properly cleaned, and explained; and d. they were paid in the next pay cycle. 98. Fire and Rescue have not, to date, explained how this is capable of being 'bullying, harassment and/or intimidation', or anything other than reasonable and appropriate management behaviour.
The respondent's second outline of submissions state: 15. In respect of allegation 1(n)(iii) Mr Maxwell focuses on the fact that RetF Day and RetF [Hampton] ultimately were paid. This is acknowledged in the allegation and irrelevant to the assessment of Mr Maxwell's conduct being intimidatory. It is not the fact that the crew were required to justify their payment claims, but the manner in which Mr Maxwell dealt with this issue which was inappropriate.
Ms Hampton told Ms Rogers in respect of sub-paragraph (iii): … We were asked to do cleaning one night. In Kurri, you have cleaning. You have your allocated hours, which is an hour a week. … Me and Stacey were asked to do it, and we were asked to do the bathroom and kitchen. We did it, and he withheld our pay for about three weeks because he said it wasn't good enough. … We sat in a meeting, and I said Ken we aren't cleaners. He said we didn't complete it, because we didn't get to the kitchen. We really scrubbed the bathroom. I mean, we got on our knees and scrubbed. … We got a little bit of the kitchen done, but we didn't complete the kitchen. He said, you didn't complete the task you were told to do. He told us we weren't being paid. We drafted an email, and were about to send it to the union, and a call came through right before we hit send. … We got back, and he said, Kim and Stacey, in the office now. He people Jamie Cockburn in as well, and said, about the pay. I want to know why you think you should be paid the cleaning that week. We said well we did the job. We were there for two hours. He said, I told you it was for the kitchen and the bathroom, but you only got the bathroom done. I said, well was there a problem with the bathroom? We completed two-an hour each. We were there for an hour. We completed the bathroom. Was it dirty? Was it filthy? He said no, there's no problem with your cleaning. I said well, what's the problem then? He said, you should have been separated, doing one area each. Some garbage, I don't know. I said well we were here for the whole hour. We got paid-we should be paid for an hour. We didn't leave-we didn't do 40 minutes, because we wouldn't expect an hour. We did-we were here doing the job, so we should be paid. Any said, well I'm going to pay this time, but next time you will not be paid. [85]
Ms Day's evidence [86] is consistent with Ms Hampton's evidence.
In respect of sub-paragraph (iii), on the basis of the consistent evidence of Ms Hampton and Ms Day, that the applicant withheld the payment initially because the applicant considered that the cleaning job was not completed in the manner he had specified, I am satisfied that: 1. they were entitled to be paid as they worked the hour each; and 2. they were denied pay for a period of three weeks.
The conduct of the applicant in denying the payment was undertaken in such a way that a reasonable person would consider it to be humiliating and constituted bullying. The conduct was not harassment and/or intimidation.

[22]

Sub-allegation 1(o)

Sub-allegation 1(o) is: [The applicant] inappropriately question[ed] members' whereabouts, availability and response times as follows: (i) In December 2015, or thereabouts, [the applicant] told DCapt Jamie Cockburn that [the applicant] had driven past RetF Day's private residence and noted that her car was not parked out the front, and after checking the roster and noting that she was marked available [the applicant was] wondering if she was going to turn up. (ii) Shortly after the above, at a different callout, [the applicant] instructed DCapt Jamie Cockburn to question RetF Day as to why it took her "so long" to turn out, after It took her approximately 6 minutes to arrive at the station and [the applicant] arrived before her. (iii) Frequently dismiss and disregard the permanent job obligations of members, most notably those who work night shift and as such are marked unavailable during the night and the following day. (iv) Questioning crew on the time it takes them to get to station, including RetF Barrett who lived about 4 minutes from station, but would take a few minutes longer if she was responding from her partner's house. (v) Questioning crew on their response time, despite them being within the 30-minute allowance, and most often arriving within 10-15 minutes of the call.
This sub-allegation was sustained in full.
Sub-paragraph (i) arises from an alleged conversation between Ms Day and Deputy Captain Cockburn, in which the Deputy Captain allegedly said to Ms Day: "just letting you know that you're being watched…. Ken's said that you're marked as available but your car is not at your house so he's wondering whether you're going to turn up." [87]
Ms Rogers did not speak with Deputy Captain Cockburn and the applicant denies saying anything like this to him.
The applicant also says, and told Ms Rogers, that the allegation is inherently implausible: for one thing, there is no requirement for crew to be at home while marked available [88] .
I accept the applicant's response to Ms Rogers as evidence that the applicant did not consider whether Ms Day's car was at her house was a relevant issue. Further, even if I accept Ms Day's evidence, it does not establish that the applicant said what Ms Day alleges he said to Deputy Captain Cockburn, only that Deputy Captain Cockburn told Ms Day that he had said these things. This evidence must be weighed against a denial by the applicant who was cross-examined on his evidence. In these circumstances, I accept the denial by the applicant and as such, the particulars of this sub-paragraph have not been established.
Sub-paragraph (ii) is that the applicant asked Deputy Captain, after a callout, to ask Ms Day about her response time, in circumstances where she had arrived in approximately six minutes. No further particulars have been provided and the respondent has not specifically addressed this issue in his written submissions. The Commission cannot be satisfied, with the limited particulars provided that the applicant engaged in the conduct alleged in sub-paragraph (ii).
The applicant says that the material in support of sub-paragraph (iii) is limited to the respondent's contention that the applicant asked Ms Barrett and Mr Murray about their availability; and in Mr Murray's case asked him if he could refuse a change of shift which meant he had to change his availability at short notice. The respondent does not answer this.
The applicant says that in Ms Barrett's case, the material relied on is the same as that referred to in 1(a) and (b) and these matters do not substantiate the sub-allegation as put, or otherwise, given that it is part of the applicant's job to manage availability.
The evidence of Ms Barrett and Mr Murray relied upon by Ms Rogers is not sufficient to establish the allegation contained in sub-paragraph (iii).
It is unclear why the allegations about questioning crew members about response times in sub-paragraphs (iv) and (v) have been broken into two parts.
The respondent does not deal with sub-allegation 1(o) in his written submissions but the applicant points to following evidence relied on by the investigator in relation to the allegations in sub-paragraphs (iv) and (v): 1. Ms Barrett's complaint that the applicant regularly asked her about her response time, which on her evidence occurred in a period when she was not making the truck; 2. Ms Hampton's claim that she saw Ms Barrett upset after a conversation with the applicant (for which she was not present); 3. an email from Ms Legovich to the FBEU which relevantly stated "I have heard Captain Maxwell [reprimand] crew for taking too long to respond to calls as the distance between their house and the station is less than, for example, 5 minutes"; 4. Mr Albrew's complaint about a training session where the applicant discussed everyone's best and worst response times, with reference to the distance between their house and the station; and 5. Mr Mifsud's general assertion that it is a "constant thing" for the applicant to question response times, including with reference to how far away they live from the station.
The applicant's evidence is that he: 1. did not badger people about their response time as alleged; 2. recalled one occasion where he raised it with Ms Barrett, as she was regularly missing the truck and there was a rumour that she was doing it on purpose; and 3. conducted a drill where response time was discussed, where the crew assessed their response time and he provided advice on tactics to deal with time management.
Managing response times was part of the applicant's job. Although crew are entitled to be paid if they arrive within 30 minutes of the call, this does not mean this is their only obligation; quick response is vital to an emergency service.
The respondent has not made out the burden of establishing the conduct alleged against the applicant in sub-allegation 1(o).

[23]

Does the conduct sustained in the various sub-allegations sustain Allegation 1?

On the basis of the material before the Commission, I have determined the following: 1. sub-allegation 1(a) - the applicant's conduct in respect of Messrs Mifsud and Murray was reasonable management action. In isolation, and in the context of Ms Barrett and Ms Fullick having difficulty meeting their availability, asking these firefighters about their commitment to Fire and Rescue and the time they had available to give to retained firefighting, is not bullying, harassment or intimidation; 2. sub-allegation 1(b) - no findings; 3. sub-allegation 1(c) - the applicant insisted that Ms Hampton make herself available for the Christmas and New Year roster and that Ms Day, Ms Fullick and Ms Legovich make themselves available or find alternative cover. However, in circumstances where Ms Legovich has given evidence that Superintendent Windeatt knew about the roster and told Ms Legovich to make it happen, it would be unfair for the respondent to rely on this conduct to dismiss the applicant; 4. sub-allegation 1(e) - the sub-allegation was not sustained; 5. sub-allegation 1(f) - the sub-allegation was not sustained; 6. sub-allegation 1(g) - the applicant applied pressure to Ms Fullick and Ms Barrett to sign the Gartan Availability Agreement and this was unreasonable and bullying; 7. sub-allegation 1(h) - the behaviour of the applicant as established in respect of contacting Ms Fullick in October 2016 and November 2016 about signing the Gartan Availability Agreement, asking Ms Fullick to explain her reasons for not signing in front of the crew following a call out, and sending an email which appeared to single out Ms Fullick but on the applicant's admission was designed to single out Ms Legovich was bullying; 8. sub-allegation 1(i) - the conduct of the applicant in sending the email was inappropriate but is considered already in sub-allegation 1(h); 9. sub-allegation 1(j) - the applicant asked the named firefighters to the effect of why they did not "back" him. In the circumstances, the applicant's behaviour was not good management, but it was not misconduct; 10. sub-allegation 1(k) - I make no findings against the applicant; 11. sub-allegation 1(m) - the emails sent on 12 and 19 October 2016 may have sought to pressure identified crew members to make themselves available for 60 hours per week but in the circumstances the emails were not bullying, harassment, intimidation or misconduct; 12. sub-allegation 1(n) - the applicant inappropriately denied pay to Ms Day and Ms Legovich as set out in sub-paragraph (iii) which, in my view, was bullying in breach of the Bullying and Harassment Policy; 13. sub-allegation 1(o) - the sub-allegation was not sustained.
The conduct that I have found sustained in respect of sub-allegations (g), (h), and (n) (the first limb set out at [93]) is sufficient to establish that the applicant engaged in repeated and unreasonable behaviour directed towards one employee or a group of employees that is bullying in breach of the Bullying and Harassment Policy using an objective standard (the second limb set out at [93]).
I do not consider that the applicant's behaviour was intimidatory.
I do not consider that the applicant engaged in harassment as defined in the Bullying and Harassment Policy.

[24]

Allegation 2 - intimidating crew from participation in an investigation

Allegation 2 is: [The applicant] intimidated crewmembers for contacting Professional Standards and for their participation in a current and ongoing investigation in the following ways: a. During February 2017, or thereabouts, while at the station after an incident [the applicant was] talking to crew about having minimal crew available and [the applicant] said to RetFs Fullick, Day and Smith words to the effect of "I can't reprimand anyone anymore because been stabbed in the back" b. During January 2017, or thereabouts, following 349 being released from an incident you said to RetF Anna Legovitch words to the effect of "this is the consequences of the investigation"
Sub-allegation 2(b) was not sustained.
The applicant's evidence in response to sub-allegation 2(a) is that the incident occurred after a stressful incident, where the truck had run short-crewed due to persons marked available not turning out, and Mr Smith, Ms Fullick and Ms Day complained about the nonattendance of other crew members.
The applicant's evidence is that he said: There is nothing I can do about that. When I have encouraged crew members to do the right thing by each other, I have been stabbed in the back. If you are not happy with the situation, you will need to speak to your fellow crew members yourself. [89]
The applicant gave evidence that he was upset about what he felt were unjustified complaints made after he had previously tried to address staffing issues and that he was tired and frustrated after a long and difficult call. The applicant says that after making the comments he then changed the conversation to a positive debrief. [90]
The respondent submits: 19. It is irrelevant whether Mr Maxwell intended to be intimidatory or whether he agrees that someone was or should have felt intimidated. Mr Maxwell was the Captain of the fire station advising his subordinates that he was not going to speak to crew members because he had been "stabbed in the back". The comment is objectively intimidatory and accusatory. 20. Irrespective of whether Mr Maxwell did or did not specifically refer to the investigation when making the statement, the comments attributed to him occurred in the context of the investigation into Mr Maxwell's conduct, and in circumstances where he had only recently returned to work following the initial suspension. This supports a finding that the conduct occurred, and the conduct was objectively intimidatory and inappropriate, particularly from the Captain and manager of the station. (Footnotes omitted)
The applicant's evidence under cross-examination on this matter was consistent and believable and he made appropriate concessions about what he said. I accept his account. In the context and in the manner in which the applicant made the comments I do not consider that a reasonable person would have understood the applicant to be intimidatory or accusatory.
The respondent submits that the context of the applicant's recent return from suspension supports a finding that the conduct was intimidatory, I do not agree. The applicant was chastened by the suspension and did not want to engage further with his crew members about availability given the allegations against him. His behaviour was not good management but as he submits was following a stressful incident, during a stressful time in his life, and displayed frustration and annoyance but was not intimidatory or accusatory.

[25]

Allegation 3 - incident with Anna Legovich

Allegation 3 is: During an incident on 21 February 2017, while RetF Legovitch was attacking the fire, [the applicant] approached her and: a. Snatched the hose from her control and then walked away, leaving RetF Legovitch alone in a hot zone without a hose b. When [the applicant] returned, [he] handed the hose back to RetF Legovich and told her she was "too fucking slow" c. [the applicant] then told RetF Legovltch that she was ''piss farting around" d. [the applicant] denied pay to RetF Legovich for the time she worked this incident after she left the job, visibly upset, while the appliance was being refilled.
In response to this allegation, the applicant's evidence is: 1. Ms Legovich was failing to properly attack the fire with the hose; 2. he took the hose from her but did not snatch it and showed her what needed to be done; 3. Ms Legovich did not assist the applicant by dragging the hose; 4. the applicant returned the branch to Ms Legovich, and bent down to start dragging the hose; 5. Ms Legovich dropped the hose, causing it to nearly hit the applicant; 6. the applicant returned the branch to Ms Legovich, dragging the hose until he was relieved; and 7. Ms Legovich left the fire ground without notifying the applicant or seeking permission, leaving the fire crew short.
The applicant also submits that sub-paragraph (d) of Allegation 3 cannot be established because Ms Legovich did not make a request for payment for him to deny [91] .
The applicant submits that Ms Legovich gave no evidence about the incident and the respondent led nothing else to prove the facts it alleges; therefore, the applicant's version of events, which is entirely consistent with what he told the investigator, must be accepted. Further, the respondent has not explained how this is said to constitute misconduct.
The respondent's second outline of submissions sets out the following: 21. It is accepted that Mr Maxwell and RetF Legovich have provided conflicting versions in relation to this allegation. As much was accepted by Ms Rogers in her investigation report; however, based on the information available to her, she preferred RetF Legovich's version. 22. The use of swear words is often common in robust and high intensity working environments, such as those encountered by the crew and management at Kurri Kurri Station and when they were on a call. The evidence demonstrated that RetF Legovich used 'swear words' and impolite language frequently in the workplace, which is admitted, but is not the point of FRNSW's concern. It is the context, manner and delivery of the words which is important. 23. Mr Maxwell says that the allegation cannot be true because he never swears and provides an email which includes a comment from the author that they have never heard Mr Maxwell swear, however there are two recorded instances in evidence that negate this statement. The use of 'swear words' is only part of the allegation - the context, intensity and effect of Mr Maxwell's direction to RetF Legovich was the basis for her complaint to Workplace Standards. RetF Legovich's report regarding the incident was made immediately to workplace standards. The contemporaneous nature of the report should give weight to RetF Legovich's version. (Footnotes omitted)
The evidence of the text message from Ms Legovich to Ms Rogers is not a copy of the text but a file-note by Ms Rogers with the heading "CMS/2016/0247 Telephone Call". This file-note states: 21 Feb 2017 - received the following text message from Anna Legovich: Hi Tayah. I didn't want to ring now as its after your work hours but I just left a job cause Ken abused me swore at me and snatched the hose off me and I just can't take it anymore. I will call you tomorrow if you like. SIO response: "Hi Anna - I'm sorry to hear this has happened, I've been off work unwell, I'll be back in tomorrow and I'll call you. In a further text I asked Anna to write down what happened and email it to me. Which she did. [92]
The email from Ms Legovich stated: I attended the call out above that I screenshot as he has chosen not to pay me for it as well and this is the paysheet. I arrived and went on pump to job, I then was told to jump on tanker as is an off-road vehicle and we had to drive in the bush to a car a light that had set the bush alight. I got out and was told to grab the hose and attack the fire, there was noone feeding the hose to me and it is very difficult to pull it sideways from the reel, Ken came over to me and told me to come back out and go in a different way, the bush was very thick and I did so we could stop the fire spreading we had to attack it quickly, he came up to me and yanked the hose from my hand and walked off, I couldn't even see him after two steps as the smoke was so thick, I was standing on hot fireyground with no hose for protection. He came back and handed me the hose and he said I was too fucking slow, I said don't yank the hose off me Ken and he said I was pissfarting around. Just continued on fighting the fire. After reaching as far as the hose lengths could we packed up and left to get water to go black out the area. I was in the truck crying and upset as I knew I tried my best I have done this 1 million times over, I couldn't stand the feeling that he could treat me like this and it be okay. How is this okay? I asked for the phone and rang Dean, my partner and asked him to come get me as I couldn't carry on. I left and went home. I had signed off the job and he has not paid me. I'm not caring about the pay but I don't understand how he can do that too. I just don't go to work to be treated like this. Thanks for listening. [93]
In other allegations Ms Rogers dealt with the particulars of the sub-paragraphs separately in the Investigation Report, however in respect of this allegation Ms Rogers relied on contradictions in the applicant's statements to her to find: … the evidence provided by Capt Maxwell in relation to all parts of this allegation to be unreliable and untruthful… [and to] find this allegation, in its entirety to be sustained.
I intend to look at each particular separately consistent with the approach to the other allegations.
On the basis of what the applicant [94] and Ms Legovich told Ms Rogers, and the applicant's cross-examination, noting that Ms Legovich was not cross-examined about this incident, and the fact that they were both at a fire which was "continuing to grow under adverse weather conditions" [95] I accept, on the balance of probabilities, that the applicant took the hose from Ms Legovich with some urgency or "snatched" it as alleged in sub-paragraph (a).
On the evidence presented to the Commission, I do not accept that the applicant, an experienced firefighter, about whom there were no complaints regarding his attitude to safety or performance as a firefighter in these proceedings [96] , would leave Ms Legovich in a hot zone without a hose. This is a most serious particular of the allegation and one that requires significantly more than an inference of the type drawn by Ms Rogers to be proven. If I had made a finding that the applicant had left Ms Legovich in such a situation, I would consider that to be the most serious of misconduct for a Captain of a fire brigade.
Sub-paragraph (a) is sustained in relation to the applicant snatching the hose from Ms Legovich but the respondent has not satisfied me that the applicant left Ms Legovich in a hot zone without a hose. The applicant expected, as he was entitled to expect, that Ms Legovich would stay with him and assist him with the hose.
Sub-paragraphs (b) and (c) allege that the applicant told Ms Legovich that she was "too fucking slow" and she was "piss farting around". Ms Rogers relied on the fact that the applicant used the word "shit" twice in his interview with Ms Rogers to reject the applicant's claim that he did not swear. [97]
The use of "fuck" has become almost pervasive in some environments, and I accept, as the respondent submits, that is widely used when firefighters are fighting fires; however in my view, there remains a qualitative difference between the words "fuck" and "shit". It is possible to accept the applicant's assertion that he does not swear to mean he does not use language like "fuck" particularly in light of the content of the email from Superintendent Gregory Adams [98] . However, on the balance of probabilities, even on the applicant's account, it is more likely than not that the applicant told Ms Legovich in strong terms that she was too slow.
Ms Rogers relied on the fact that Ms Legovich made an immediate complaint to Professional Standards to accept Ms Legovich's complete account over the applicant's account of the incident.
I have carefully considered the context of the complaint to Ms Rogers. The fact that it was made quickly does support to some extent, Ms Rogers's view that it is to be preferred.
However, an alternative inference is available: that Ms Legovich was upset that the applicant's suspension was lifted, and upset about what took place at the incident, which on the applicant's account included the applicant observing that Ms Legovich was not performing her tasks properly, and as I have determined, likely doing so using strong language, and Ms Legovich leaving the scene of a fire, which could itself be misconduct. Ms Legovich's complaint was then made to Ms Rogers, a person who had listened to Ms Legovich's other complaints about the applicant, after which the applicant was suspended, and whom Ms Legovich could reasonably and correctly have inferred could influence the final outcome of the investigation and the employment, or otherwise, of the applicant.
However, the matters set out in [317] were not put to Ms Legovich in such terms. I therefore make no specific determination about why Ms Legovich complained when and how she did, other than that there is an alternative reasonable inference available as to why Ms Legovich made an immediate complaint which does not support a view that Ms Legovich's complete version of events is to be preferred.
I have set out at [42] to [45] observations about Ms Legovich's evidence. Taking this into account, and the admissions made by the applicant, and that the applicant was not shaken in his cross-examination about this incident, I accept on the balance of probabilities, the applicant's denial that he used the specific language alleged, and the applicant's account of the incident as summarised at [302]. The respondent has failed to satisfy the Commission that the particulars of sub-paragraphs (b) and (c) are established.
The applicant says that he could not have denied a claim for payment that was not made. Ms Rogers relied on "documentation provided by Zone (the GARTEN timesheet)" to determine that "Ms Legovich was not paid for attending the incident". The documentation does establish that Ms Legovich was not paid. [99] However, this evidence does not deal with the applicant's response to the allegation, that Ms Legovich did not submit a claim for payment. Rather, the email from Debra Boswell to Ms Rogers says: I will need to request GARTAN to look in the back end of the system to see whether it was rejected and deleted. Do you want me to do this?
There is no evidence that such a query was undertaken and the evidence to the Commission does not establish that Ms Legovich made a claim, in accordance with the relevant process for payment. Despite this, Ms Rogers goes on to find "the evidence provided by Capt Maxwell in relation to all parts of this allegation to be unreliable and untruthful" and therefore the allegation was established. While I accept that Ms Legovich was not paid, on the basis of the material before the Commission, I am not satisfied that the applicant denied the payment to Ms Legovich.

[26]

Allegations 4, 5 and 6 - inappropriate questioning as to relationship

Allegation 4 is: Approximately 4 years ago [ie 4 years before the Investigation Report,] [the applicant] inappropriately questioned RetF's Ashley Hopkins (nee Gordon) and Rob Hopkins about their relationship. [The applicant]: (a) Requested RetF Ashley Hopkins (nee Gordon) attend a meeting with [the applicant] and said words to the effect of "would you sleep with your brother?"; (b) Requested RetF Rob Hopkins attend a meeting with [the applicant] and said words to the effect of "would you sleep with your sister''
Allegation 5 is: 5. Approximately 3 - 4 years ago, [ie 3-4 years before the Investigation Report,] [the applicant] inappropriately questioned RetF's Stacey Day and Jake Peters about their relationship. [The applicant]: (a) Requested RetF Stacey Day attend a meeting with [the applicant] in [his] office and said words to the effect of "would you sleep with your brother?" (b) Requested RetF Jake Peters attend a meeting with [the applicant] in [his] office and said words to the effect of "would you sleep with your sister"
Allegation 6 is: During 2016 [the applicant] inappropriately questioned RetF's Tayla Barrett and Dale Albrew, about their relationship. [The applicant]: (a) Requested RetF Tayla Barrett attend a meeting with [the applicant] in [his] office, and in the presence of DCapt Jamie Cockburn, and said words to the effect of (i) "would you kiss your brother?" (ii) "would you sleep with your brother?" (b) Requested RetF Dale Albrew attend a meeting with [the applicant] in [his] office, and in the presence of DCapt Cockburn, said words to the effect of (i) "would you kiss your sister?" (ii) "would you sleep with your sister?"
The applicant makes the following submissions in respect of the three allegations: 120. This allegation first emerged when Ms Rogers was interviewing Ms Barrett. Ms Barrett was describing some general discussion about her relationship with another crew member. At this point, Ms Hopkins - there as a support person - intervened without invitation and alleged that Mr Maxwell had said the words alleged. At this point- and only at this point- Ms Barrett suddenly remembered that this striking phrase had been what was said. 121. Ms Rogers then interviewed Ms Day. Ms Day confirmed: a. that Ms Hopkins had told her that Mr Maxwell had used the phrase 'we're like family, would you sleep with her brother' to her and Mr Hopkins'; b. said that the 'same thing' had happened to her and Mr Peters in 2012; c. agreed with Ms Rogers that the words were 'would you sleep with your brother'; d. then stated that she couldn't 'remember that far back'. 122. On 18 September 2018 - nine months after he was formally interviewed - Ms Rogers called Mr Albrew about the allegation. His recollection is that she suggested the phrase 'would you sleep with your sister' to him, and he agreed. 123. On 19 September 2018, Ms Rogers similarly called Ms Hopkins, Mr Peters and Mr Hopkins. The file notes do not disclose what Ms Rogers said to them; given the above, it is more likely than not that a similar suggestion was made. 124. This evidence, such as it is, is completely unreliable. This does not require a conclusion that the witnesses (those that have turned up, anyway) are lying; it is simply a combination of the inherent unreliability of human memory and the obvious witness contamination that has occurred. 125. There is no question that Mr Maxwell had conversations with Ms Hopkins, Mr Hopkins, Ms Barrett and Mr Albrew about their respective relationships. His evidence discloses an entirely different tone and tenor of conversation: namely, one that it is appropriate for a manager to have with staff, particularly in the context of a high-pressure, small workplace. (Footnotes omitted)
The applicant admits having a conversation with Mr and Ms Hopkins in 2014 but not in the terms alleged by the respondent. The applicant says that he spoke with Mr and Ms Hopkins separately and said the same thing to both of them. The applicant sets out the following in his statement: 250. I started the conversation by stating "I am not speaking with you as your Captain, I am speaking with you are someone that has a bit of life experience and cares about you and everyone in our crew." 251. I then went on to say that, "from my experiences, relationships in the workplace can often end up with people getting hurt." 252. I said that, "sometimes they work, but more often than not, someone ends up getting hurt." 253. I finish the conversation by saying "the choice is yours. I'm just giving you a bit of advice because I care about you." 254. The impression I got from my conversation with RetF A Hopkins was that she was appreciative that I was talking to her because I cared. 255. I deny that I ever said "would you sleep with your brother/sister?" I am offended by this suggestion.
The respondent submits in relation to Allegation 4: 24. … RetF Hopkins (nee Gordon) told Ms Rogers that Mr Maxwell had called her into his office, and said to her words to the effect of "you wouldn't date your brother would you?" and "you wouldn't kiss your brother would you?" RetF Hopkins told Ms Rogers separately that Mr Maxwell called him into the Captain's office and told him that he should consider that dating RetF Hopkins (nee Gordon) was "like sleeping with your sister." 25. Mr Maxwell admits that he spoke to RetF Hopkins (nee Gordon) and RetF Hopkins regarding their relationship. He admits that he suggested that "their invested crew members looked upon their fellow members like family. Looking out for each other like a brother or sister." He also says that he was not speaking to them as their Captain but someone with a bit of life experience. 26. Even on Mr Maxwell's version of events, the context and content of the conversations are inappropriate and constitute unprofessional conduct from a manager towards staff. The conversations occurred at Mr Maxwell's request, in his office at the station, in the context of their employment. Mr Maxwell's explanation for his conduct and the conversation should be rejected in that context and is, in any event irrelevant to the substance of the allegation. (Footnotes omitted)
Ms and Mr Hopkins did not give evidence in the proceedings. None of the evidence supporting Allegation 4 is direct evidence from Ms or Mr Hopkins. Although the rules of evidence do not apply in the Commission I have taken into consideration the submissions of the applicant about the reliability of the file-notes of Ms Rogers about the accounts by Mr and Ms Hopkins. Consequently, I give greater weight to the applicant's evidence about the interactions with these firefighters.
On the evidence of Mr and Ms Hopkins that is before the Commission alone, I could not be satisfied that the conversations were in the form alleged in sub-allegations 4(a) or 4(b). However, the context and content of the conversations even on the applicant's evidence are inappropriate and constitute unprofessional conduct from a manager towards staff. Further, the applicant asserts that he said similar things to Mr and Ms Hopkins as he said to Ms Barrett and Mr Albrew. Given the finding that I have made below at [338] in relation to Allegation 6, I am satisfied that the weight of evidence supports the Hopkins's version of the conversations and sub-allegations 4(a) and 4(b) are sustained.
In relation to Allegation 5, the applicant denies knowing at any time that Ms Day and Mr Peters were in a relationship and denies asking either of them to attend a meeting in his office and using words to the effect of "would you sleep with your brother/sister?"
The respondent submits: 27. Mr Maxwell does not recall that he had a discussion with RetF Day about RetF Peters as he says he does not recall being aware that RetF Day and RetF Peters were in a relationship. 28. RetF Day and RetF Peters were not actually in a relationship. This however doesn't negate the evidence from both RetF Day and RetF Peters that they were questioned by Mr Maxwell about a (non-existent) relationship. 29. RetF Day's unchallenged evidence was that Mr Maxwell said to her: "... We're like family up at the station and would you sleep with your brother, would you sleep with your sister?" 30. Tab 42 of Exhibit 11 contains a file note of Ms Rogers' telephone conversation with Mr Peters. Mr Peters told Ms Rogers that Mr Maxwell had warned him off a relationship with RetF Day and spoke about how they were like "family". 31. On balance, the Commission must find that Mr Maxwell did speak with RetF Day and Mr Peters about being in a relationship, and that the conversation was inappropriate in the circumstances. (Footnotes omitted)
Ms Day told Ms Rogers that she was told years earlier by Ms Hopkins that Ms Hopkins was called into the office by the applicant and asked about her relationship with Mr Hopkins, then, a number of years later the applicant called Ms Day into the office and had a similar discussion.
An issue arises with respect to the reliability of Mr Peters's evidence. Relevantly, Ms Rogers acknowledged: "Mr Peters stated that he could not recall the exact words that Capt Maxwell stated, specifically he could not recall if Capt Maxwell said "would you sleep with your sister?" [100]
Ms Rogers went on to determine: • Mr Peters was unable to provide specific detail about what Capt Maxwell said in the meeting, while RetF Stacey Day states that Capt Maxwell asked her "would you sleep with your brother" in reference to Mr Peters and Capt Maxwell's assertion that there should not be workplace relationships and they should treat each other like family. • Given that the evidence provided by other witnesses in relation to related allegations four and six is consistent, I find that there is enough supporting evidence to find, that on the balance of probabilities it is more likely than not that the conduct, or similar, as alleged occurred. [101]
Ms Day was made available for cross-examination but was not asked about this allegation. Mr Peters did not give evidence in these proceedings but the content of the file-note of Ms Rogers largely supports Ms Day's other than the specific language used. On the evidence before the Commission, I find on the balance of probabilities that sub-allegation 5(a) is sustained. I am also satisfied that the respondent has established a satisfactory inference that the conduct alleged in sub-allegation 5(b) is sustained.
In relation to Allegation 5, the applicant recalls having separate conversations with Ms Barrett and Mr Albrew in the presence of Deputy Captain Cockburn. The applicant says the conversations were in terms similar to the conversations with Mr and Ms Hopkins. The respondent did not provide any evidence from Deputy Captain Cockburn.
The respondent submits in relation to Allegation 5: 32. Mr Maxwell admits that he spoke to RetF Barrett and RetF Albrew about being in a relationship. He had been informed that they might be dating. Again, Mr Maxwell says he told them each that he was not speaking to them as their Captain. He said they "should be looking out for each other as looking out for their brother or looking out for their sister." 33. RetF Barrett and RetF Albrew were not actually in a relationship. 34. The evidence of RetF Barrett is at pages 40 to 42 and page 43 of her record of interview with Ms Rogers. 35. RetF Barrett was not challenged on her evidence that she was taken into the office and Mr Maxwell said to her ''Tayla, we're like family here." and 'We're all like brothers and sisters." and "So would you kiss your brother or sister in a relationship way?" and "would you sleep with your brother and sister?" 36. Tab 38 of Exhibit 11 contains a file note of Ms Rogers' telephone conversation with RetF Albrew. RetF Albrew told Ms Rogers that Mr Maxwell had called him into the Captain's office and was talking about how FRNSW were all family and "would you kiss your sister?" and ''would you sleep with your sister?" RetF Albrew was cross examined on this point: Q. Okay, the investigator called you back and she suggests to you that he said, that Mr Maxwell said, "Would you sleep with your sister': do you remember that phone call? A. Yes. Q. And you agreed with the investigator? A. Yeah. 37. Even on Mr Maxwell's version of events, the suggestion is that RetF Barrett and RetF Albrew should consider each other family or brother and sister, rather than as in a relationship. The context and content of those conversations are inappropriate and constitute unprofessional conduct from a manager towards staff. The conversations occurred at Mr Maxwell's request, in his office at the station, in the context of their employment. Mr Maxwell's explanation for his conduct and the conversation should be rejected in that context and is, in any event irrelevant to the substance of the allegation.
Ms Barrett was not asked about this allegation in cross-examination. Mr Albrew was asked about the content of the file-note in cross-examination. Although neither the content of the file-note nor the cross-examination establish what was said to Mr Albrew by Ms Rogers, this was a matter that the applicant's counsel chose not to explore. Mr Albrew's evidence is consistent with Ms Barrett's and on the balance of probabilities based on the evidence before the Commission, I find that sub-allegation 6(a) and 6(b) are sustained.

[28]

Allegation 8 - mismanagement of sexual harassment complaint

Allegation 8 is: Approximately two years ago [ie 2 years before the Investigation Report,] or thereabouts, [the applicant was] approached by RetF Legovich who advised [the applicant] that she wished to make a sexual harassment complaint concerning DCapt Cockburn. [The applicant] did not ask her any details, or offer her any support, but simply stated it would be "dealt with at the conference". It is alleged that this complaint was not appropriately managed or escalated to a senior manager or the Professional Standards branch.
The essence of this complaint is that the applicant failed to deal with a sexual harassment complaint by Ms Legovich from 2014 in accordance with the relevant policy.
The applicant says that he attempted to escalate Ms Legovich's complaint to Superintendent Windeatt, which is, in substance, the appropriate course. The applicant submits that this is a plausible and appropriate thing for him to do given: 1. he denies, and there is no evidence, he was ever trained in how to manage these matters himself; 2. he is, on his evidence and not unreasonably, uncomfortable dealing with these matters; and 3. his relationship with Ms Legovich was, at the time, very difficult.
Superintendent Windeatt does not deny that this occurred. He does not recall it occurring, which is a different proposition. The applicant says that it is a blanket denial and there is no suggestion that the Superintendent reviewed his diary, email or files in any way to assist him to recall the matter. In these circumstances, and particularly given the length of time that has elapsed and the confused nature of the allegation as put by Ms Legovich, the applicant submits that his version of events should be preferred.
Before the interview with Ms Rogers, the applicant was given limited details about this allegation. At the interview, the applicant showed Ms Rogers his phone, on which he had kept a text message from Ms Legovich [102] which stated: Ken I think u better talk to Jamie Cockburn about his sexual advances and invitations towards me the last few months before we have this meeting. Maybe that's my problem. I don't need it.
The applicant's disclosure of the text message assisted the respondent establish that Ms Legovich made a complaint and this disclosure was therefore against the applicant's interests.
In the applicant's first statement he says: 260. During the investigation, I was not given a specific date of when I have said this. 261. I recall organising a meeting with RetF Legovitch in around October 2015 to discuss her behaviour. Attached and marked "AT" is a copy of the list of issues we were having with RetF Legovich. RetF Legovich had been yelling and swearing at upper management. 262. The meeting was scheduled for 12 October 2014. 263. I requested support from the Zone Office for the Inspector to sit in on the discussion with RetF Legovich. I recall Zone Commander Greg Windeatt said the Inspector was not available to attend the meeting. 264. I sent an SMS message to RetF Legovich with the details of the meeting. 265. On or about 9 October 2014 at 2207 hours, I received an SMS message from RetF Legovitch. 266. On or about 10 October 2014 at 0409, I received a further text message from RetF Legovitch. Annexed and marked "AU" is a copy of that text messages. 267. On or about 10 October 2014, I spoke with RetF Legovitch and advised that her, DCapt Cockburn and Zone Commander Windeatt will be at the meeting. 268. RetF Legovitch responded, "I don't want you to discuss what I sent you this morning." 269. I said, "ok." 270. On or about 12 October 2014, I raised a number of issues with RetF Legovich and gave her ample opportunity to discuss. 271. RetF Legovich raised a number of issues, mainly involving Deputy Captain Cockburn, but at no time mentioned the allegation that she raised on 10 October 2014. The complaints were not of sexual harassment, but just interpersonal conflict. 272. After a lengthy discussion, I said to RetF Legovitch "that issue you raised with me on Friday, I am not able to deal with that and I am referring it to the Zone Commander. " 273. On or about 14 October 2014, I spoke with Zone Commander Greg Windeatt who suggested that RetF Legovitch took two weeks annual leave. 274. RetF Legovitch took two weeks annual leave. 275. After my meeting with RetF Legovitch, I spoke privately with Zone Commander Windeatt in the office without Deputy Captain Cockburn present. I told him about RetF Legovitch's allegation and showed him the text message. I told him that I don't feel confident dealing with this sort of issue. 276. I then left the matter with Zone Commander Windeatt to deal with it. 277. On or about 28 October 2014, RetF Legovitch came into the station while I was doing administrative duties. RetF Legovitch wanted to know what was happening about the allegation she raised in her text message. 278. I told her that I had passed it onto Zone Commander Windeatt and that she should contact Zone Commander Windeatt for any details. 279. RetF Legovitch was furious and stormed out of the building, jumped into her car. I could hear her wheels spinning in the loose gravel as she left. I later found bits of gravel all over my car and chipped paint on the front panel of my car. 280. When the matter was not dealt with, I raised it with two other people who had been appointed by Professional Standards to provide facilitation in dealing with the station's issues. On or about 11 November 2014, I raised the allegation with Conference Facilitator Dirk Spek. 281. On or about 7 April 2016, I again raised the allegation with Facilitator Iain McGuire. Mr McGuire responded, "I don't think we will touch that one." 282. I have never received any specific training in relation to dealing with sexual harassment in the workplace. [103]
The following exchange about what the applicant did with the information in the text message occurred during cross-examination of the applicant: Q. You didn't provide any formal notification as per the relevant policy to Workplace Standards? A. I notified my zone commander. Q. And that was, as you say, via showing him a text? A. Yes. Q. There's no actual notification of the date, the time of the incident, what had occurred, who the parties were concerned or any basis by which Workplace Standards could investigate the issues? A. Sorry, what's your question. Q. Do you agree that showing someone a text message, if that did indeed occur, is not a notification pursuant to the sexual harassment policy? A. I showed my supervisor and I thought he would know the right steps to take from that point on. Q. You didn't ever follow up the issue? A. I didn't feel it was my position 'cause I told him I did not feel comfortable dealing with this, particularly involving the people it involved. I didn't want to be part of that process. [104]
Superintendent Windeatt sent an email to Ms Rogers dated 14 September 2017: In relation to Captain Maxwell's claim he showed me the SMS text message regarding RFF Legovitch allegation of sexual harassment, I do not recall this happening If I am mistaken and considering the tension at 349 at the time, I most likely would have directed Captain Maxwell to clarify with RFF Legovitch what happened. This would have been in consideration of potential Police involvement and WHS needs. Captain Maxwell would have been instructed to supply these details in writing so I could forward/lodge the complaint with Professional Standards. My email records from around this period of 2014 showed no such email being received from Captain Maxwell. [105]
Superintendent Windeatt's evidence in his affidavit is: In response to paragraph [275] to [276] of Mr Maxwell's Statement, I say that I do not recall this occurring. If I had been shown the text message I would have asked for a copy. [106]
Superintendent Windeatt says that if he had been shown the text message "I most likely would have directed Captain Maxwell to clarify with RFF Legovitch what happened .. and Captain Maxwell would have been instructed to supply these details in writing".
The Superintendent's evidence in his affidavit regarding the proper approach does not take into account the circumstances of the tension and disharmony at the station, in particular with Ms Legovich, the applicant and Deputy Captain. Further, the applicant did not say that he emailed the text message to Superintendent Windeatt and given the apparent age and model of the phone that is the subject of the photographs in the Investigation Report it is quite possible that the applicant did not know how to send a text message by email from that phone, and/or it may not have been possible to screen shot the phone in question. The fact that the Superintendent did not receive an email copy of the text message does not establish that the Superintendent was not shown a copy of the text message.
The following exchange occurred during cross-examination of Ms Legovich by the applicant's counsel: Q. I'd like to talk to you about a complaint you made in 2014 in October. Do you remember this? A. Jog my memory. Q. Sexual harassment complaint about Mr Cockburn? A. Yep. Q. In October 2014 Captain Maxwell requested a meeting with you, didn't he? A. Yes. Q. It was to discuss your behaviour in the station, wasn't it? A. Apparently. I don't recall what it was about. Q. It was about you yelling at people? A. If you say so. I do not recall. Q. No, no, if you don't recall, just say that? A. I do not recall. Q. It was about you swearing at people including the captain? A. Do not recall. Q. It was about you not following instructions? A. Do not recall. Q. I just want to show the witness another document. This is annexure 14 to the investigator's report. Can I just get you to look at the second page of that first? So just turn over the page, Ms Legovich. That's your mobile phone number? A. Yes. Q. So that's a text you've sent Mr Maxwell at 10 o'clock thereabouts on 9 October 2014? A. Yes. Q. And you say to him at 10 o'clock that night, "Hi Ken, I will accept your meeting and it has to be with Jamie CockB"? A. CockB. Q. So-- A. Yes. Q. --you're agreeing to attend the meeting to discuss your behaviour, aren't you? A. I'm agreeing to attend a meeting. … Q. Can I get you to look at the first page, Ms Legovich, and again that's your phone number? A. Yep. Q. And that's at 4am, 4.10 - sorry, 4.09am the next morning? A. Ah-- Q. And that's when you raise your complaint about Mr Cockburn, isn't it? A. Raise my complaint about Mr Cockburn? That's when I raised my complaint about Jamie? Q. That's what I'm asking? A. I don't recall if it was that day because I thought it was in the meeting, face-to-face. Q. It's now five years ago. You don't really remember any of this well, do you? A. I don't remember when I raised the complaint. I know when I thought I had raised the complaint face-to-face. Q. Mr Maxwell did speak to you later about this? A. Yes. Q. He told you that he'd spoken to zone command about it? A. No. Q. Told you it would be dealt with at the conference coming up? A. Yes, you could say brushed off, yes. Q. No, he told you it would be dealt with at the conference, that's right? A. Yes. Q. That meeting with Mr Maxwell about your behaviour, it did happen, didn't it? A. I don't recall it being about my behaviour. Q. Mr Windeatt was also there? A. Negative. Q. He gave you two weeks off after the meeting? A. Negative. Q. When you came back after your leave you approached Mr Maxwell in the admin area? A. I don't know. Q. You don't remember? A. Not that, no.
The applicant says that he did not understand the requirements of the Bullying and Harassment Policy, and that he expected Ms Legovich to raise the issue at the meeting with Deputy Captain Cockburn and Superintendent Windeatt. The applicant says that Ms Legovich said she did not want the matter discussed at the meeting when he had expected she would, then, after the meeting, the applicant showed Superintendent Windeatt the text message and left it in the hands of his superior. Once Ms Legovich returned from holiday and asked about her complaint the applicant told her that she should ring Superintendent Windeatt as he had left the matter in his hands.
The fact that Ms Legovich did not remember that she had text the applicant and not approached him in person and her constant responses of "negative" when answering questions about the complaint and the meeting with the applicant and Superintendent Windeatt around that time gives me cause to doubt her memory about other aspects of the allegation, including whether the applicant told her, after her return from leave, that he had informed Superintendent Windeatt about the complaint and to contact him about it.
There is no evidence from Deputy Captain Cockburn on this matter.
The Bullying and Harassment Policy provides: 19 Assessing complaints- for managers/supervisors If the person who receives the complaint is below the level of Inspector (or equivalent) they must refer the matter to their supervisor/manager. The senior manager will conduct an initial assessment and make recommendations on appropriate actions. The senior manager must refer the matter to Workplace Standards for approval before taking any further actions to resolve the matter. The manager/supervisor: • Should consider whether it is appropriate for them to assess the matter (e.g. do they have a conflict of interest?). • Must treat the complaint seriously, respectfully, impartially and confidentially. • Must undertake an objective assessment of the complaint as soon as possible. • Should gain an understanding of the issues raised and assess whether the alleged behaviour is workplace bullying or harassment and falls within the scope of this policy. • Should keep confidential notes of any discussions at the assessment stage.
The applicant did not ask Ms Legovich any details, or offer her support or notify the complaint to Workplace Standards, therefore his conduct did not comply with his obligations pursuant to cl 7.2 of the Bullying and Harassment Policy to: • Provide support, as is appropriate, for all employees affected by a complaint during the process. This may include referring employees to the EAP or other support services as appropriate. • Ensur[e] all actions taken to manage a bullying complaint are appropriately documented.
Superintendent Windeatt does not deny that he was shown the text message. He does not recall this occurring, which is a different proposition. There is no suggestion that he has reviewed his diary, email or files in any way, although the Superintendent was not cross-examined about his lack of memory.
In circumstances where the applicant made admissions against his interest and provided the evidence of the text message that established that Ms Legovich had raised this matter with him and given the length of time that has elapsed and the confused nature of the allegation as put by Ms Legovich, the applicant's version of events should be preferred.
This is an allegation of misconduct and it is for the respondent to prove and not for the applicant to disprove. The respondent has not met the burden to refute the applicant's evidence that he showed the text message to Superintendent Windeatt. The respondent has not established that the applicant did not comply with his obligation to treat all employee concerns and complaints seriously, respectfully, impartially and confidentially, nor has the respondent established that the applicant did not take the minimum appropriate steps under cl 19 of the Bullying and Harassment Policy.

[29]

Allegation 9 - improper practice re SIMS, code 11

Allegation 9 is: Despite being aware of the conditions under the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2014 [the applicant]: (a) ordered crew to complete SIMS after callouts regardless of the time of day or night, and regardless of the advice provided by the FBEU that staff were not to carry out SIMS after a callout. (b) established the practice of Insisting that crew remain at the station despite a Code 2 being called until the full hour had elapsed. In this time, [the applicant] ordered crew to do SIMS, and refused to allow crew to go home before the full hour has expired.
This allegation was sustained in full.
The applicant agrees that crew were asked to perform SIMS after callouts, in limited terms, on advice from his supervisor and to address an operational problem that there was not enough time for SIMS to be completed.
The applicant says that Mr Wilkinson's evidence is that this: 1. was a request, not an instruction; 2. was made only to people who were waiting at the station anyway; and 3. that after people complained, the applicant changed the system to the rolled-in system agreed to by Ms Legovich.
The applicant submits that unless the Commission accepts that the applicant is required to follow strict work-to-rule instructions by the Fire Brigade Employees Union, this is not capable of constituting misconduct.
The applicant denies the allegation in respect of Code 2s and says that the respondent has failed to substantiate this claim, or challenge his evidence in any way. Further, there is no explanation for why the documents which would prove or disprove this sub-allegation which he says exist, and are available, were not considered by the investigator or put before the Commission.
The respondent submits: 43. Mr Maxwell denies part (a) and in his record of interview says that "to say that I ordered the crew to do anything is just incorrect". He says (b) is a complete fabrication. Captain Wilkinson, whose record of interview evidence is favourable to Mr Maxwell, indicates that Mr Maxwell did require people to stay and complete SIMS immediately after a call out. This is consistent with the evidence of RetF Legovich, RetF Barrett and RetF Day. 44. RetF Day gives evidence that it was the practice at Kurri Kurri Station that following a Code 2, regardless of the length of time, the crew were made to stay at the station for the remainder of the first hour of the call out. RetF Day says that this could occur at 2am after a 20 minute callout and the firefighters were required to stay until the full hour had passed. 45. FRNSW does not press the advice provided by the FBEU; however, submits that it is unreasonable for a Captain to order SIMS be performed immediately after a call out in those circumstances, considering the health and wellbeing of crew and the time that the call out concluded. (Footnotes omitted)
Ms Rogers referred to the applicant's denial of the allegations and that he said "to say that I ordered the crew to do anything, is just incorrect". [107] Ms Rogers did not refer to the applicant's explanation that: … On return to the station after a callout, I attend to the required admin duties and the Deputy Captains attend to their duties as per the duty statement. That duty statement says that the Deputy Captain is to coordinate all activities upon return to the station. So to say I ordered the crew to do anything, is just incorrect. However, I have been present when the duty commander, Tom Freedom, instructed the Deputy Captains to get the crew members to check equipment on the tanker while it's sitting at the station if the tanker is not required to attend. For instance, if we go to an automatic fire alarm. Also, when the pumper returns, spare crewmembers are to check equipment on pump while it's being re-stowed. He said don't call it SIMS, call it skills maintenance. (b) about code twos. This is a complete fabrication. If you could supply me with the dates and times that this is alleged to have occurred we can check the occurrence book and you'll find that the allegation is not based on fact. That's another one of those blanket ones that people like to throw out there. It's all documented it's all in the occurrence book and easily checked. [108]
Ms Rogers's Findings state: … whilst Captain Maxwell denies this allegation, the evidence provided by the witnesses, including a Deputy Captain, clearly support the allegation. [109]
The references in the Investigation Report in relation to Deputy Captain's Wilkinson transcript of interview do not establish that the applicant ordered the crew to complete SIMS after call-outs as alleged in sub-allegation 9(a).
In his affidavit (then) Deputy Captain Wilkinson deposes to the following: 6. When I was interviewed, I expressed a particular view about how the station was being run. To some extent I was "blind" to what was happening and I answered a number of the questions in a way that would have been helpful to Ken. 7. On reflection, since the time I was acting captain and now the captain, I have observed a lot of the problems that have been created by Ken's management of the Station. As I discussed further below, I have made a number of changes to the operation of the station in order to improve the morale station. 8. Whilst Ken was captain, the station was divided Ken ran a very strict station and wanted everything to be dealt with by his deputies rather than dealing with things himself.
In cross-examination Mr Wilkinson gave the following evidence: Q. So a few years ago this problem with the SIMS that you weren't getting through tasks, it came up. Do you remember? A. Yeah. Q. And the captain and the deputy captains asked people who were just waiting at the station, not doing anything but still getting paid, to help out doing equipment maintenance checks. Do you remember that? A. Yes. Q. People started getting a bit dirty about that? A. Yes. Q. And so Ken changed that system, didn't he? A. Yes. Q. He entered into a new system where there's four people for an hour and a half each week? A. Yep. Q. So six hours? A. Yes. [110]
Mr Wilkinson's evidence does not "clearly support the allegation" that the applicant "ordered" the SIMS to be undertaken. It is evidence that a decision was taken by the Deputy Captains and the applicant that the time following a callout could be used to make up for the lack of available time to undertake SIMS. I accept that the applicant was ultimately responsible for the decisions of his Deputy Captains but there is no direct evidence that it was his order as is alleged. Mr Wilkinson's deposes in his affidavit that the applicant wanted everything done by his deputies supports one of the applicant's defences to sub-allegation 9(a), that the applicant did not order the SIMS to be undertaken, but rather it was the Deputy Captains' decision and action.
The respondent has not met his burden of establishing that the applicant engaged in the conduct alleged in sub-allegation 9(a).
The applicant denies sub-allegation 9(b), says that he was not given specifics and his affidavit evidence is that Code 2s do not happen often. [111]
The evidence in relation to the code 2s is found in the transcripts of Ms Barrett's, Ms Legovich's and Ms Day's interviews with Ms Rogers.
Ms Legovich told Ms Rogers: So after a callout, we'd come back and we get paid an hour, it's a given, the call out. So we turn up to the station. Even if we were finished in-if we walked in the station we were code two'd then we don't go anywhere. So we've not responded. Cen will go in and quickly do his fire report onand that but he will keep everyone here for that hour because we're paid it, and he would ask them to either complete the SIMS list that wasn't done or do next week-start on next week SIMS list to make it easier. [112]
During Ms Day's interview with Ms Rogers the following discussion took place: Ms Rogers: … So what was it like those two weeks while they were suspended? You still have to turn out don't you… Ms Day: I still turn out, yeah. Ms Rogers … When you're on light - yeah Ms Day: I loved it. That was probably, in the last whatsit been, 11 months or whatever, those two weeks are properly the times when I wanted to turn out because we could be a call and it might be smoke in the vicinity or something. You're out there for 10 minutes. We would have to sit at the station for an hour. I sat at the table for 40 minutes because we're not allowed to go. Ms Rogers: so that's when you get code two, is that what you mean? Ms Day: Correct. Either a code 2 or it's just a job where you can't find anything or whatever so you're out for 10 minutes and then you come back. Ms Rogers: so has it all… Been that way, that you've been made then to stay at the station for the full hour? Ms Day: Yeah. [113]
Ms Barrett told Ms Rogers: … If they get code 2 or if they come back sooner or whatever, they stay for the full hour, so that's how the SIM sort of come up because we had to find something to do sort of thing.
No further details of the dates or occurrences of these incidents were presented to the Commission. The applicant submitted and the respondent did not deny, that records of code 2s are held by the respondent. The applicant was not asked in cross-examination any questions dealing with Code 2s.
The respondent has not met his burden of establishing that the applicant engaged in the conduct alleged in sub-allegation 9(b).

[30]

Was there a valid reason?

I have found the following allegations sustained: 1. Allegation 1 - on the basis of the particulars of sub-allegations (g), (h), and (n) I accept that the applicant engaged in conduct that constituted bullying in breach of the Bullying and Harassment Policy and which is misconduct; 2. Allegations 4, 5 and 6 - I have determined that the applicant inappropriately questioned the six firefighters in the manner that the respondent alleges. This was unprofessional conduct, however in the circumstances, the respondent has not established that it was misconduct; and 3. Allegation 8 - the applicant did not comply with his obligations under cl 7.2 of the Bullying and Harassment Policy to provide appropriate support to Ms Legovich or to keep appropriate documentation. However, I have accepted, on the balance of probabilities, the applicant's defence that he informed Superintendent Windeatt about Ms Legovich's complaint.
The applicant asserts that he was not familiar with the respondent's policies relating to behaviour in the workplace, because, despite receiving the relevant policies, and being made aware of them, he did not think that they were relevant to his position so he did not take the time, and he did not have the time, to review them.
The applicant agreed in cross-examination that he read and considered the Commissioner's Orders that were sent on a regular basis. The applicant acknowledges that he was obliged by cl 14 of the FB Regulation to have knowledge of and to comply with, the Commissioner's Orders. He agreed that knowledge and implementation of the Fire Brigades Act, Regulations, Code of Conduct, policies and the Commissioner's directions were his specific role and responsibility. [114]
In the circumstances, the applicant cannot rely on his unfamiliarity with the policies to excuse his failure to comply. However, the sustained breaches of the Bullying and Harassment Policy do not amount to a sufficient reason to dismiss the applicant.
I have taken into consideration the regulatory context: Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [146], in particular, cll 16(c) (abuse authority by acting oppressively towards a subordinate) and 17(1)(h) (while on duty, by words or action, harass, intimidate or threaten another firefighter) and the meaning of "misconduct" at cl 33 of the FB Regulation set out at [14].
The position as Captain and manager of the Kurri Kurri brigade elevates the respondent's expectations of the applicant's conduct beyond that of his subordinates. However, taking into account the sustained allegations, the applicant's position as Captain and the regulatory context, the decision to terminate the applicant's employment was disproportionate to the sustained conduct and does not constitute a valid reason for dismissal.
Accordingly, the Dismissal was unjust and unreasonable.

[31]

Procedural Fairness

Procedural fairness is a factor the Commission may take into account when assessing whether a particular dismissal can be characterised as "harsh, unreasonable or unjust". In Antonakopoulos v State Bank (1999) 91 IR 385, the Full Bench of the Commission considered the basis upon which procedural issues might be considered and said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust.
In this matter, the investigation process was deficient and the findings were made: 1. without providing the applicant with details necessary to allow him to respond; 2. three or four times over in respect of the same facts; 3. without making basic foundational enquiries - for example, when retained firefighters are actually entitled to be paid.
Throughout the investigation, Ms Rogers failed to consider the applicant's version of events. The contrary is shown by Ms Rogers's: 1. failure to follow up lines of enquiry suggested by the applicant, or otherwise obvious, such as seeking records and documents that would resolve contested facts objectively; 2. admission in cross-examination that, at least in respect of Allegation 3, she had formed a view that Ms Legovich was telling the truth before speaking to the applicant. [115]
In Franklins Ltd v Webb (1996) 72 IR 257 at 262 the Full Bench observed that employers "need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal".
While that case dealt with summary dismissal for alleged theft, it is illustrative of the heavy onus upon an employer to ensure allegations about an employee's conduct are investigated in a diligent and procedurally fair manner and support the ultimate sanction of dismissal. That onus was not discharged by the respondent in this matter.
When an issue of procedural fairness is raised what must be considered is whether the defect is of such substance that it could have materially impacted the final outcome and thus could clearly be said to have produced an unfair or questionable result.
I refer to the comments of his Honour Deputy President Sams in Foster and Woolworths Limited [2000] NSWIRComm 208: … it is now well settled law that proven deficiencies in the process are not necessarily fatal to an employer's decision to summarily dismiss an employee. It is the seriousness of the allegations, if proven, which, in my view, will be decisive in establishing whether the employer's decision to dismiss the employee was reasonably open to it.
I have concluded, after a thorough consideration of the evidence presented by the respondent, that the Investigator's Report was flawed and in respect of many of the allegations against the applicant, the respondent has not satisfied the onus of proof upon it, to establish that the misconduct occurred.
The findings which I have made against the applicant were not a matter warranting dismissal, particularly given the applicant's lengthy service and the evidence of Superintendent Windeatt of the applicant's technical skills.
The respondent was aware that the applicant was not a good manager of people and the applicant asked for help as a manager, including asking for assistance with dealing with the Gartan Availability System as set out at [74].
The respondent says that the applicant received substantial assistance with managing the Kurri Kurri brigade but it is my view that this was not established by the respondent's evidence.
The gravity of the procedural deficiencies outweigh the misconduct of the applicant. I have determined that there was no valid reason for the Dismissal and these procedural defects add to the harshness of the Dismissal.
A number of other factors exist which compel a finding that the decision to dismiss was harsh: 1. the difficult workplace situation the applicant was operating in, and the lack of support that he received from Fire and Rescue in managing these issues; 2. the objective seriousness of the conduct that was established is low (despite how it is characterized by Fire and Rescue), particularly in the context of an operational fire station; 3. the applicant's many years of service, and his dedication to Fire and Rescue's operations both at 349 Kurri Kurri; 4. the effect of the Dismissal on the applicant, given his age, regional location and length of service in a specialised job.
There is no evidence to suggest any of these factors were taken into account by Fire and Rescue. These matters should have been considered.
Further, the applicant says that he has been the victim of bullying, harassment and/or "mobbing", including through the receipt of anonymous text messages. The applicant says that he has been treated harshly when compared with other employees.
The respondent submits that it is no answer to the allegations against the applicant, or for a finding of harshness for him to suggest that he cannot have engaged in misconduct because he was the victim of bullying himself. The respondent says that Ms Legovich's conduct in the workplace, as directed to the applicant and others, was the subject of separate investigations via complaints made to Workplace Standards, including by the applicant and that there was a different outcome to that complaint and investigation does not support a finding that the respondent treated the applicant harshly.
It is true that each investigation should depend on its unique circumstances. However, the manner in which the respondent dealt with the applicant's grievance about the text message and his complaints about PPE shows a very different attitude to complaints about the applicant from its response to complaints by the applicant. [116] This adds to the harshness of the Dismissal.
While I consider that there was not a valid reason for termination and that there were procedural fairness deficiencies, I do not consider that the actions of the respondent were otherwise inconsistent with his obligations under cl 35 of the FB Regulations as set out at [14]. The applicant was advised of the reasons for the Dismissal, was given a copy of the Investigator's Report and all the material available to the respondent as the decision-maker, prior to the final decision being made, to give the applicant the opportunity to make out a defence or to explain his behaviour, in a letter dated 31 October 2017. [117] This was also specifically expressed as the opportunity for the applicant to demonstrate, or explain, to the respondent that his termination as penalty for his conduct was inappropriate, in circumstances where other penalties were available for disciplinary proceedings. In addition to being invited to respond in writing, the applicant was given the opportunity to meet with the respondent face-to-face to provide a response which occurred on 11 January 2018.

[32]

Is reinstatement impracticable?

The primary remedy is reinstatement, and the applicant seeks reinstatement. Accordingly, the Commission must also determine whether reinstatement or re-employment is impracticable: Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186. If reinstatement or re-employment is impracticable, the Commission may decide to order compensation and, if so, must determine the amount of that compensation.
The respondent says that reinstatement is not an appropriate remedy for various reasons.
The respondent says that the applicant has displayed a lack of insight about, and responsibility for, his conduct, and has not even accepted that he may have contributed to the perceptions of the retained firefighters of Kurri Kurri Fire Station to whom the applicant's conduct relates.
It is correct that the applicant has not displayed a thorough insight into his contribution to the work environment at Kurri Kurri brigade. However, he reached out to his employer for help, and while Commissioner Baxter and Superintendent Windeatt had clearly formed a view that by Fire and Rescue had provided sufficient and appropriate assistance to the applicant to help him manage the Kurri Kurri brigade, I am not similarly satisfied.
The respondent says that the applicant's position as Captain and manager of the Kurri Kurri station elevates the respondent's expectations of the applicant's conduct beyond that of his subordinates, and is referred to by Commissioner Baxter in the context of his decision set out at [29]. I accept this is the case. I accept that Commissioner Baxter's view as to whether the applicant can perform his role of Captain is also relevant. However, it is also relevant that Commissioner Baxter relied on the findings of Ms Rogers which have largely been unsubstantiated in this Commission and the recommendations of Ms Clarke.
Superintendent Windeatt gave evidence of his belief that up to 50% of the employees at Kurri Kurri brigade will leave if the applicant is reinstated. This could be difficult for the Zone Commander, Duty Commander and the applicant because there would be a need to recruit and rebuild the station again. [118] Superintendent Windeatt took into account staff who had left the Kurri Kurri brigade in previous years and returned, in making this estimate.
In considering this submission, I considered the evidence of the firefighters who gave evidence in this matter about the impact of the reinstatement of the applicant. There is no evidence from firefighters who left the brigade previously.
Ms Fullick says that she would be constantly on edge and anxious because the applicant made her feel bullied [119] .
Ms Legovich says that she would "feel that [she] would have to transfer to another station [as she] would feel that he got away with his bad behaviour" [120] .
Ms Day says: 6. Tim's leadership style is extremely different to Ken's. Tim is a lot more understanding of work life balance for each of the firefighters. He tries to accommodate everyone's situation in everyday life. This has meant that the crew are a lot more relaxed and feel that their families and primary employment are taken into consideration. Things have run very smoothly since Tim has taken over the Captain's role. 7. I now enjoy coming to my job as a Retained Firefighter. When Ken was here it was a chore. He created a very negative atmosphere at the station. I was often concerned that I may have done something wrong because of Ken's leadership style.
Mr Redfern says at par 5 of his affidavit: 5. If Ken was to return to the Station it would be untenable. I would look at transferring to a neighbouring station. I believe his return would create low morale. I think it would have a negative impact on the station and crew.
Relevantly however, during his interview with Ms Rogers. Mr Redfern said: I think sometimes … we might be a little too micromanaged. That's about all. That's my opinion. [121]
Mr Wilkinson has been appointed as the new Captain [122] and he would undoubtedly be upset if the applicant was reinstated.
Ms Barrett gave evidence about a desire to pager-share at Kurri Kurri but I do not consider this to be a significant issue with respect to whether reinstatement of the applicant is impracticable.
The affidavits of Messrs Albrew and Mifsud do not deal with the impact on them if the applicant were reinstated.
I accept that there is evidence of animosity between the applicant and other employees and there will be difficulties with the applicant's working relationships if he is reinstated as Captain of the Kurri Kurri brigade.
However, it is not a sufficient basis for claiming impracticality of reinstatement by merely suggesting "it will be awkward" or because the applicant's role is now performed by another, has a corollary that no dismissed employee would ever be reinstated. Almost invariably, reinstatement of an employee by the Commission will be "awkward" and the work will be performed by other employees. If this was sufficient to establish impracticability, few if any reinstatement applications would be granted.
I refer to the views of their Honours Wright P and Hungerford J expressed in Hollingsworth v Commissioner of Police (No 2) 88 IR 282, where at 341 their Honours said: Finally on this aspect of the practicality of reinstatement of the appellant we refer with agreement to what was said by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, as follows: If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits . There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether the standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived . Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable." (Emphasis added.)
That passage was applied by a Full Bench (Fisher P, Hungerford J and Bishop C) of the Commission in CCH Australia Ltd v Bowen (1998) 79 IR 206. It is appropriate to apply it again in the instant case.
Given the comments I have made about Ms Fullick's evidence at [51] - [53], and Ms Legovich's evidence at [42] - [45], I view Ms Fullick's concerns about being "on edge" or Ms Legovich's assertions about transferring to another station as having an element of exaggeration.
I accept that Ms Day may feel coming to work with the applicant a "chore" and that Mr Redfern may look to move to another station.
It is apparent that under (now) Captain Wilkinson's management the strict controls on declaring availability have been loosened and this has improved the morale at the Kurri Kurri brigade. Captain Wilkinson says, and the evidence of the other firefighters confirms, that he has worked to promote a work/life balance.
I accept that the applicant did not similarly encourage work/life balance. On the basis of the evidence before the Commission I accept that the applicant considered that it was more important to ensure the Kurri Kurri brigade had coverage, and he was encouraged by the respondent to hold this view as Superintendent Windeatt acknowledged was "potentially" the case.
If the applicant approaches availability and coverage in the same way as his replacement, Mr Wilkinson, and he is supported in so-doing by his employer then the issues with the staff, which I acknowledge are substantial, and weigh against reinstatement could be significantly reduced, and the firefighters may see work as less of a "chore".
On the basis of the respondent's submissions to the Commission in respect of the alleged conduct of the applicant and the impracticability of reinstatement, it is apparent that the respondent considers that the applicant's conduct and/or behaviour was responsible, at least in part for the difficulties at 349 Kurri Kurri Station from around 2009. As there was limited evidence before the Commission about these matters, I have not taken this into consideration.
In determining the question of reinstatement, I have also considered the applicant's ability to perform the role of Captain if he were reinstated.
The Selection Criteria for the position of Captain as set out in the Position Description states: All capabilities listed below are specific to this role, and are essential for this position. … 3. Proven capacity to manage and motivate staff either as leader or facilitator, with experience in remedial conflict resolution. …
The Key Accountabilities for the position of Captain as set out in the Position Description includes: • Manage retained staff; provide leadership, directions, advice mentoring and guidance … … • Actively promote the principles of EEO and anti-discrimination policies to ensure a harassment free workplace
The evidence before the Commission has established that the applicant has not always displayed the essential capability set out in [433] a "proven capacity to manage and motivate staff" or the Key Accountabilities extracted at [434] in respect of a number of firefighters who gave evidence in these proceedings.
The misconduct and unprofessional conduct of the applicant and the deficiencies displayed by the applicant in meeting the capabilities and accountabilities of the role of Captain do not reach the threshold required for the Commission to determine that the relationship of trust and confidence that an employer is entitled to have in an employee has been destroyed to such an extent that reinstatement of the applicant is impracticable.
In my opinion, the applicant should be given a chance to improve his management style and to display the capabilities of the role of Captain with the genuine assistance of the respondent. It is appropriate that the applicant is reinstated on terms and conditions no less favourable than he enjoyed at the date of the Dismissal.
By s 89(3) of the Act, the Commission may, if it orders reinstatement, further order that the employer pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed.
In the circumstances of this case I do not propose to make such an order. This is for three reasons. Firstly, the applicant engaged in misconduct as defined in the Regulation and inappropriate and unprofessional conduct. While it did not warrant his dismissal it otherwise called for a sanction of some kind and I am not empowered to order an alternative penalty such as the respondent may have in accordance with cl 15 of the FB Regulation as set out at [15]. Secondly, the applicant while giving evidence that he had to seek casual employment [123] gave no detailed evidence of the steps he took to mitigate his loss as a result of the termination of his employment. Thirdly, the applicant was suspended with pay for approximately 70 weeks prior to his termination.
I propose to order the reinstatement of the applicant but will defer the date of effect of that order for 28 days to allow the respondent to make the necessary arrangements to integrate the applicant back into the workforce at Kurri Kurri brigade or to otherwise consider his position in relation to this decision.

[34]

Endnotes

Ms Rogers's supplementary affidavit at par 3
Ms Rogers's supplementary affidavit par 5dd
Ms Clarke's affidavit at par 17. The briefing note is annexure LC-7 to Ms Clarke's affidavit.
Tcpt 19 March 2019 p 6 lines 3-4
Tcpt 19 March 2019 p 7 lines 3-10
Tcpt 19 March 2019 p 9 lines 33-35
Tcpt 19 March 2019 p 22 lines 33-35
Annexure AL-1 to Ms Legovich's affidavit - tcpt of interview 15 December 2016 p 16
Tcpt 21 March 2019 p 3 lines 43-44
For example, tcpt 21 March 2019 p 15-16 about "marking off" all of Christmas Day
Tcpt 18 March 2019 p 41 lines 3-4
Tcpt 18 March 2019 p 31 line 47 - p 32 line 1
Annexure "A" to Mr Mifsud's affidavit at p 15 of the tcpt of interview with Ms Rogers 15 December 2016
Tcpt 20 March 2019 p29 line 4 and line 50
Annexure "16" to Ms Rogers's first affidavit, at p 611 (p 30 of the tcpt of interview)
Superintendent Windeatt's affidavit at par 25
Applicant's first affidavit at par 40
Applicant's first affidavit at par 41
Annexure LC-7 to Ms Clarke's affidavit
The Bullying and Harassment Policy, pp 8-9
The applicant's first statement at par 97
The applicant's first statement at par 99
Tcpt 21 March 2019 pp 3-13
Annexure "TB" to Ms Barrett's statement at p 49 of the tcpt of Interview of 15 December 2016
Annexure "RK1" to Ms Fullick's affidavit, at p 8 of the tcpt of Ms Fullick's interview with Ms Rogers
Annexure "S" to the applicant's first statement at p10 of the tcpt of interview
Annexure "12" to Ms Rogers' first affidavit at p 17 of the tcpt of interview
Annexure "AH" to the applicant's first statement is an email from the applicant to Duty Commander Thomas Freedom dated 24 August 2016
The applicant's first statement at par 97
The applicant's first statement at par 99
Annexure "A" to Mr Mifsud's affidavit at p15 of the tcpt of interview
Fire & Rescue NSW "Preventing and Responding to Bullying and Harassment Policy and Procedure" at pp 10 and 11
Annexure "AG" to the applicant's first statement
Tcpt 15 March 2019, p 48, lines 7-8
Paragraph 69 of the respondent's second outline of submissions
The applicant's first statement at pars 110-111 and Superintendent Windeatt's affidavit at pars 11 and 29
Annexure "AL1" to Ms Legovich's affidavit at p 12 of the transcript of her interview with Ms Rogers on 15 December 2016
Tcpt 21 March 2019 at p 39, lines 26-28
Tcpt 21 March, p 35, lines 35-39
Annexure "KH1" to Ms Hampton's affidavit at pp 18-19 of the tcpt of interview
Annexure "KH1" to Ms Hampton's affidavit at p 18 of the tcpt of interview
Annexure "KH1" to Ms Hampton's affidavit at p 19 of the tcpt of interview
Annexure "A1" to Ms Day's affidavit at pp 31-33 of the tcpt of interview
Annexure "AL1" to Ms Legovich's affidavit at pp 8-14 of the transcript of her interview with Ms Rogers on 15 December 2016
Annexure "AL1" to Ms Legovich's affidavit at p 10 of the transcript of her interview with Ms Rogers on 15 December 2016
Annexure "AL1" to Ms Legovich's affidavit at p 10 of the transcript of her interview with Ms Rogers on 15 December 2016
Annexure "TB2" to Ms Barrett's affidavit at p14 of the transcript of the interview of 21 December 2016
Tcpt 20 March 2019 p 42 lines 7-8)
Tcpt, 20 March 2019 p 43
Tcpt, 21 March 2019
Annexure "AN" to the applicant's first statement
Affidavit of Superintendent Windeatt at par 33
Annexure "TB-2" to the affidavit of Ms Barrett at p 20 of the tcpt of interview
Tcpt 21/3/19 p 7 lines 7-28
at p 10
Investigation Report, p 27
Annexure "A" to Mr Albrew's affidavit at pp 3-4 of the tcpt of interview
Annexure "TB1" to the affidavit of Ms Barrett at p 47 of the tcpt of the record of interview
Annexure "TB1" to the affidavit of Ms Barrett at p 49 of the tcpt of the record of interview
Annexure "RK1" to the affidavit of Ms Fullick at p 5 of the tcpt of interview
Annexure "RK1" to the affidavit of Ms Fullick at p 7 of the tcpt of interview
Annexure "RK1" to the affidavit of Ms Fullick at p 8 of the tcpt of interview
Annexure "RK1" to the affidavit of Ms Fullick at p 9 of the tcpt of interview
Affidavit of the applicant at [148]
Annexure "A" to Mr Wilkinson's affidavit at p 4 of the tcpt of interview
Annexure "WR1" to Mr Redfern's affidavit at p 7 of the tcpt of interview
The responsibilities of Managers and Supervisors in respect of the prevention of bullying. Harassment and discrimination are set out at cl 7.2 of the Fire & Rescue NSW "Preventing and Responding to Bullying and Harassment Policy and Procedure"
Annexure "S" to the applicant's first statement at p 19 of the tcpt of interview
Annexure "S" to the applicant's first statement at p 23 of the tcpt of interview
Annexure "AL1" to Ms Legovich's affidavit at pp 3 and 6 of the tcpt of the interview of 20 December 2016
Annexure "A" to Mr Albrew's affidavit at p 20 of the tcpt of interview
Annexure "A" to Mr Mifsud's affidavit at p 11 of the tcpt of interview
Annexure "A" to Ms Day's affidavit at p 5 of the tcpt of interview
Annexure "WR1" to the affidavit of Mr Redfern at p 6 of the tcpt of interview
Annexure "KH1" to Ms Hampton's affidavit at p 23 of the tcpt of interview
Annexure "A" to Ms Day's affidavit at pp 25 - 26 of the tcpt of interview
Annexure "A" to Ms Albrew's affidavit at p 24 of the tcpt of interview
Tcpt of interview with Ms Rogers at p 11
Tcpt of interview with Ms Rogers at p 12
Tcpt, 15 March 2019, p 82 at line 23
Tab 37 of the Investigation Report
Respondent's second outline of submissions at par 14
Applicant's second outline of submissions at pars 83-86
Applicant's first affidavit at pars 177 - 178
Annexure "KH1" to the Ms Hampton's affidavit at pp 28-29 of the tcpt of interview
Annexure "A" to the Ms Day's affidavit at pp 23-24 of the tcpt of interview
Annexure "A" to Ms Day's affidavit at p 7 of the tcpt of interview
Annexure "S" to the applicant's first affidavit at p 89 of the tcpt of interview
Annexure "S" to the applicant's first affidavit at p 96 of the tcpt of interview
Applicant's first affidavit at pars 209 - 218
Applicant's first affidavit at pars 219 - 241 and pars 245 -246
Tab 30 to the Investigation Report
Tab 31 to the Investigation Report
Annexure "S" to the applicant's affidavit at pp 90
Annexure "S" to the applicant's affidavit at pp 90
See Superintendent Windeatt's affidavit at par 24 and Mr Wilkinson's affidavit at par 8
Annexure "S" to the applicant's affidavit at pp 30 and 52.
Annexure "AS" to the applicant's first affidavit
Tab 36 to the Investigation Report
p 83 of the Investigation Report
p 84 of the Investigation Report
Investigation Report p 91.
The applicant's first affidavit
Tcpt 14 March 2019 at p 22, lines 5 - 25
Tab 39 to the Investigation Report
Affidavit of Superintendent Windeatt at par 34
Investigation Report p 97
Annexure "S" to the applicant's first statement at p 111 of tcpt of interview
Investigation Report p 97
Tcpt 20 March 2019 p 8, lines 7-27
Applicant's first affidavit at pars 287 - 294
Annexure "AL1" to Ms Legovich's affidavit at p 13 of the tcpt of interview for 20 December 2016
Annexure "A" to Ms Day's affidavit at p 22 of the tcpt of interview
Tcpt 11 March 2019, pp 8-47
Tcpt 15 March 2019 at pp 97-98.
Tcpt 15 March 2019, pp 10-11, Tcpt 21 March 2019, pp 44-45 and Exhibit A8
Annexure LC-8 to the affidavit of Louise Clarke
Tcpt 21 March at pp 48-49
Affidavit of Rachael Fullick at par 5
Affidavit of Anna Legovich at par 4
Tcpt of interview with Ms Rogers at p 11
Tcpt 21 March at p 48 and affidavit of Timothy Wilkinson at p 1
Applicant's first statement at par 297

Parties

Applicant/Plaintiff:

Maxwell

Respondent/Defendant:

Commissioner of Fire and Rescue NSW

Legislation Cited (5)

Fire and Rescue Act 1989(NSW)

Fire Brigades Regulation 2014(NSW)

Fire Brigade[s] Regulation 2014(NSW)

Industrial Relations Act 1996(NSW)

Police Act 1990(NSW)

Cases Cited (15)

Relevant legal principles

Section 84 of the IR Act, relevantly provides: 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.
Section 88 of the IR Act provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
To be entitled to a remedy under the IR Act the onus is on the applicant to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
As the Dismissal was justified on the basis of allegations of misconduct it is for the respondent to establish that the alleged misconduct in fact occurred and warranted dismissal: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84.
It is well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench of the Commission in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
In Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 183, the Full Bench made the following observations: "In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made."
The Commission is also required to have regard to the regulatory context of the applicant's employment in the determination of an unfair dismissal claim: Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [146] (McColl JA).
The applicant's employment was subject to the F&R Act and the Fire Brigades Regulation 2014 (NSW) ("FB Regulation"), which relevantly provides: Part 3 Functions of firefighters 13 Contraventions of Part 3 A contravention of this Part does not give rise to an offence but may be the subject of disciplinary action or remedial action under Part 4. … 16 Duty to obey orders and act fairly and responsibly A firefighter must not: (a) disobey or disregard any lawful order made or given by a person having the authority to make or give the order, or (b) be disrespectful or insolent to a person in authority over the firefighter, or (c) abuse the firefighter's authority by acting oppressively towards a subordinate, or (d) without good or sufficient reason, be absent from duty or be late for any parade, drill or other required attendance, or (e) through negligence, carelessness or malice, allow any loss, damage or injury to occur to any person or property, or … 17 Unacceptable behaviour (1) A firefighter must not: … (g) while on or off duty, by words or action, behave in a manner that is subversive of discipline or calculated to bring discredit on Fire and Rescue NSW, or (h) while on duty, by words or action, harass, intimidate or threaten another firefighter, or (i) while on duty, by words or action, harass or discriminate against any person on the grounds of sex, marital status, pregnancy, age, ethnic or national origin, physical or intellectual impairment, sexual preference, transgender status, carer's responsibilities or any other ground in respect of which discrimination is prohibited by the Anti-Discrimination Act 1977. … Part 4 Misconduct Division 1 Preliminary 33 Meaning of "misconduct" (1) For the purposes of this Part, misconduct includes, but is not limited to, any of the following: (a) a contravention of Part 3, (b) performance of duties in such a manner as to justify the taking of disciplinary action, … Division 2 Dealing with misconduct and other matters 35 Dealing with allegations of misconduct (1) If the Commissioner is made aware of an allegation that a firefighter may have engaged in any misconduct, the Commissioner may: (a) decide to deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, or (b) decide that it is appropriate to take remedial action with respect to the firefighter. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the Commissioner may, if the Commissioner is of the opinion that the firefighter has engaged in any misconduct, decide to take disciplinary action with respect to the firefighter. (3) Before any disciplinary action is taken with respect to a firefighter under this clause, the firefighter must be given an opportunity to make a submission in relation to the disciplinary action that the Commissioner is considering taking. (4) Even though the Commissioner decides to deal with an allegation of misconduct as a disciplinary matter in accordance with the procedural guidelines, the Commissioner may, at any stage of the process: (a) decide to take remedial action with respect to the firefighter concerned, or (b) decide to dismiss the allegation, or decide that no further action is to be taken in relation to the matter, or both. …
The FB Regulation defines "disciplinary action" in the following terms: 3 Definitions 1) In this Regulation: … disciplinary action, in relation to a firefighter, means any one or more of the following: (a) terminating the firefighter's appointment, (b) directing the firefighter to resign, or to be allowed to resign, within a specified time, (c) a demotion in rank, (d) the imposition of a fine not exceeding 10 penalty units, (e) a caution or reprimand.

(1999) 91 IR 385

(1938) 60 CLR 336

(1998) 79 IR 206

(1996) 72 IR 257

(2005) 146 IR 441

(1993) 51 IR 167

(1990) 35 IR 70

(1997) 72 IR 186

(1997) 73 IR 454

(1995) 185 CLR 410

Cited By (1)

Dickson v Industrial Relations Secretary in respect of Department of Communities and Justice