New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440

Industrial Relations Act 1996 LEGISLATION CITED: Fire Brigades (General) Regulation 2003

Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Blythe Chemicals Limited v Bushnell (1933) 49 CLR 66 Buckman v Burdekin (1998) 85 IR 415 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Burke v McGirr (1995) 87 IR 54 Busways v Johnson (1994) 55 IR 255 Byrne and Anor v Australian Airlines (1995) 61 IR 32 Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160 Day v Lumley Life Limited (1999) 90 IR 70 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Federated Municipal and Shire Council Employees Union of Australia, New South Wales Division, on behalf of Bowman and City of Sydney Council [2001] NSWIRComm 91 Franklins Ltd v Webb (1996) 72 IR 257 CASES CITED: Hill v Department of Juvenile Justice [2000] NSWIRComm 128 Hunt v Hornsby Shire Council [2001] NSW IRComm 242 Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 Little v Commissioner of Police (No 2) (2002) 112 IR 212 North v Television Corporation Ltd (1976) 11 ALR 599 Oswald v NSW Police Service (1999) 90 IR 42 Paris v Bankstown City Council (unreported) McLeay C, IRC5427 of 1997, 22 January 1999 Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and others) and Western Sydney Area Health Service [2004] NSWIRComm 27 Transport Workers Union of Australia, New South Wales Branch, on behalf of Joseph Vallis and TNT Australia Pty Ltd t/as TNT Express [2002] NSWIRComm 46 Wells v Commissioner of Police (2000) 100 IR 106 Wilson v Department of Education and Training (2000) 100 IR 1

HEARING DATES: 10/24/2005; 10/25/2005; 10/26/2005

APPLICANT Mr J Nolan of counsel Instructed by: Ms M De Vecchis New South Wales Fire Brigade Employees' Union LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of counsel Instructed by: Ms J Duncan New South Wales Fire Brigades

• 58 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 30 November 2005

Matter No IRC05/3322 New South Wales Fire Brigade Employees' Union (on behalf of Joseph Natoli) and NSW Fire Brigades Application by New South Wales Fire Brigade Employees' Union on behalf of its member Joseph Natoli re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION [2005] NSWIRComm 440 1 Until the evening of the 13 January 2005, Senior Firefighter Mr Joseph Natoli, the applicant in these proceedings, had an unblemished ten year record of service with the New South Wales Fire Brigades ('the respondent'). As a result of an incident that evening, the applicant was dismissed from the Fire Brigades on 20 July 2005 for misconduct. 2 The misconduct alleged against the applicant was in the form of two complaints: Complaint No 1 That 7397 Senior Firefighter Joseph Natoli on the 13 January 2005 at Maroubra in the State of New South Wales did use a fire appliance, to wit, Maroubra Fire Station Pumper No 853, for an unauthorised purpose. Clause 19(1) Fire Brigades (General) Regulation 2003.

Further Particulars Senior Firefighter Natoli invited and drove 3 civilian persons on Maroubra Fire Station pumper, registration number FBY853, along Fowler Street, Boyce Road, Cooper Street, Mons Avenue and Haig Street, Maroubra, without the knowledge or permission of the duty Station Commander, Station Officer Dean Allison. Complaint No 2 That 7397 Senior Firefighter Joseph Natoli on the 13 January 2005 at Maroubra in the State of New South Wales did leave the Fire Station without the permission of the Officer in Charge of the Fire Station. Clause 31(1) Fire Brigades (General) Regulation 2003. Further Particulars At about 1905 hours on 13 January 2005, Senior Firefighter Natoli left Maroubra Fire Station without the permission of the Station Commander, Station Officer Dean Allison. 3 The applicant was represented during the respondent's investigation of his conduct and these unfair dismissal proceedings by his Union, the New South Wales Fire Brigade Employees' Union ('the Union'). 4 On the 29 June 2005, the Union filed an application pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act') seeking the applicant's reinstatement as a senior firefighter with the New South Wales Fire Brigades. Unsuccessful attempts at conciliating the matter had been undertaken by McLeay C prior to, and after the applicant's date of dismissal. The application was subsequently reallocated to me for hearing following a s173 application made by the applicant's representative. 5 At the request of the parties, the Commission inspected the Maroubra Fire Station, viewed the procedure involved in a pump test of the fire fighting appliance ('the truck') and travelled the route said to have been taken by the applicant when he took his three civilian friends for a ride in the truck on 13 January 2005. This inspection was most useful in appreciating the context of the events of that evening. 6 The parties also provided a helpful agreed statement of facts, which I reproduce: 1. At the time of his termination on 20 July 2005, Mr Natoli was employed as a Permanent Firefighter in the New South Wales Fire Brigades ("the NSWFB"), at Maroubra Fire Station on C Platoon.

Mr Natoli was appointed to the NSWFB on 31 March 1995.

On 31 March 2001, Mr Natoli was promoted to the rank of Senior Firefighter.

On 13 January 2005, Mr Natoli was on duty at Maroubra Fire Station, having commenced duty at 1800 hours. Also on duty were Station Officer Dean Allison ("SO Allison"), Senior Firefighter Mark Wright ("SF Wright") and Senior Firefighter Anthony McDonagh ("SF McDonagh"). SO Allison was the designated Officer in Charge on this shift. SF Wright was the next most senior firefighter on the shift. Mr Natoli was the designated motor driver for the shift.

Shortly after the start of the shift, SO Allison received a female acquaintance on the Station. They proceeded upstairs to the SO's recline area and SO Allison closed the door to his room.

At approximately 1845 hours, three acquaintances of Mr Natoli arrived at Maroubra Fire Station. One of these persons had undertaken the NSWFB entrance examination the previous day. This person requested a tour of Maroubra Fire Station and a look at the pumper.

The pumper (an abbreviation of 'pumping appliance') is a fire truck used for transporting firefighters and their equipment and pumping water.

At approximately 1905 hours Mr Natoli drove the No. 70 Pumper out of Maroubra Fire Station with the three persons aboard. Mr Natoli took an activated hand-held radio with him on the pumper.

At 1909 hours, Mr Natoli received a 'call to fire' at Gazelle Foods, Hillsdale.

A fire call in relation to the same incident came through to Maroubra Fire Station at 1909 hours.

Mr Natoli returned to 70 Station, dropping off the three persons and picking up the Station Officer and rest of the crew.

Later that evening, SO Allison reported the incident to the Operational Commander South 2, C Platoon, Inspector Kevin Cooper.

At 2205 hours, Inspector Cooper, and Inspector Graham Webb, Operational Commander City, attended Maroubra Fire Station and interviewed SO Allison and Mr Natoli. SF Wright and SF McDonagh were asked to prepare written reports as to what had happened earlier on the shift.

Maroubra Fire Station was taken off-line for the duration of this investigation, meaning that the crew and fire appliance were unable to respond to any fire calls for several hours.

At 2300 hours, SO Allison went off-duty on stress-related sick leave.

At 2320 hours on 13 January 2005, Mr Natoli was suspended from duty, with pay, pursuant to clause 37(1)(a) of the Fire Brigades (General) Regulation 2003 ("the Regulation").

On 13 January 2005, Inspector Cooper submitted a complaint of misconduct against Mr Natoli pursuant to clause 36(1) of the Regulation. Inspector Webb reported the suspension and the reason for it to the NSWFB Commissioner.

On 14 January 2005, Superintendent Peter Stathis, Professional Standards and Conduct Officer, recommended pursuant to clause 41(1) of the Regulation that a Preliminary Inquiry into the matter be convened.

On 17 January 2005, Superintendent Marcus Baker, Manager Operational Personnel, was appointed as Inquiry Officer.

On 17 January 2005, Acting Commissioner John Anderson confirmed in writing Mr Natoli's suspension from duty pursuant to clause 38(1) of the Regulation. He also advised Mr Natoli that he had approved a maintenance payment of one hundred per cent of his full pay during his suspension.

Superintendent Baker presented his findings on 12 February 2005, including a recommendation that charges be laid against Mr Natoli pursuant to clause 42(1) of the Regulation.

On 21 February 2005, Mr Natoli was charged with two offences under Part 3 of the Regulation.

On 3 March 2005, the NSW Fire Brigades Employees' Union ("the FBEU"), on behalf of Mr Natoli, advised the NSWFB Commissioner that Mr Natoli denied the charges made against him.

Assistant Commissioner Murray Kear was appointed to conduct a Formal Inquiry into the charges brought against Mr Natoli.

The Formal Inquiry was conducted on 13 and 14 April 2005.

Assistant Commissioner Kear presented his findings on 7 June 2005, including a recommendation that Mr Natoli be terminated pursuant to clause 45(1)(e) of the Regulation.

On 14 June 2005, Nominated Officer Assistant Commissioner Graham Dewsnap presented his findings to the NSWFB Commissioner, Greg Mullins, including a recommendation that Mr Natoli be terminated pursuant to clause 45(1)(e) of the Regulation.

On 15 June 2005, Commissioner Mullins issued Mr Natoli with a show cause notice, wherein he was invited to make written submissions prior to the Commissioner deciding on any disciplinary action.

On 8 July 2005, the FBEU provided written submissions to Commissioner Mullins on Mr Natoli's behalf.

Mr Natoli was terminated without notice on 20 July 2005. He was paid up until 21 July 2005. 7 Reliance was had on a number of the provisions of the Fire Brigades' Regulation and Standing Orders. At this point, I shall identify these references as follows:

The Fire Brigades (General) Regulation 2003 ('the Regulation') Clause 19(2) of the Regulation states: A firefighter must not use a fire appliance or other departmental property for an unauthorised purpose or be concerned, whether directly or indirectly, in its unauthorised use Clause 31(1) of the Regulation states: A firefighter who is on duty at a fire station must not leave the fire station without the permission of the officer in charge of the fire station or, if the firefighter is an officer, a more senior officer Clause 35(1)(a) of the Regulation states: A firefighter is guilty of misconduct if the firefighter contravenes a provision of Part 3 Clause 37 of the Regulations states: (1) An officer authorised by the Commissioner for the purposes of this clause may suspend a firefighter from duty if: (a) the officer is of the opinion that the firefighter is guilty of misconduct, or (b) the firefighter has been taken into police custody or is in prison on remand. (2) A firefighter may be suspended under subclause (1) whether or not a complaint of misconduct has been made against the firefighter. (3) A firefighter may not be suspended unless all reasonable steps have been taken to ensure that the firefighter has been informed of the reason for the suspension and has been given an opportunity to respond. (4) A suspension under this clause has effect for the period (not exceeding 14 days) specified by the authorised officer and may be terminated at any time by the Commissioner. (5) If a suspension relates to the absence from duty of a firefighter without authority, the suspension is taken to have commenced when the unauthorised absence began, unless the Commissioner determines otherwise. (6) An officer who suspends a firefighter must, as soon as practicable, report the suspension and the reason for it to the Commissioner.

Response to lock outs 1. When the NSWFB receives a call to a lock out and there is a risk to life and property, the NSWFB will respond to the incident as a fire, hazmat or rescue incident, as appropriate. 2. There is no requirement under the Fire Brigades Act 1989 for the NSWFB to respond to situations where there is no threat of injury or death to people or damage to property. 3. Locksmiths are the appropriate people to be called in most lock out situations. Their services are widely available and many provide a 24 hour service. 4. When a request is received for assistance at a lock out, or when firefighters arrive at an incident and it is found to be a lock out, the Communications Operator or Incident Controller must consider whether there is a risk of a person being injured or damage to property before taking action. 5. Unless such a risk is present, the NSWFB will not assist in gaining entry to the property. 6. If there is no threat to people or property, firefighters should explain that it is not the NSWFB's role to respond to lock outs, and advise the caller to contact a locksmith. 7. Firefighters should make every effort to assist the caller to locate a locksmith.

Visitors to Stations Occurrence book entries Arrival and departure times of all visitors to fire stations, including NSWFB tradespeople, must be recorded in the occurrence book, such entry shall state name of visitor and reason for visit. A visitor means any person or persons who visits a fire station, not being the officers and firefighters attached to that particular station and in fact rostered or about to be rostered for duty.

THE EVIDENCE 8 The following persons provided statements or affidavits during the proceedings. Not all the witnesses were required for cross examination.

Joseph Vincent Natoli Senior Firefighter Neil Andrew Gill Firefighter Level 1 Mark Robert Wright Senior Firefighter Marika Astrid De Vecchis Industrial Officer, FBEU Craig Anthony Harris State Secretary, FBEU Kevin John Adams Inspector Gregory Mark Buckley Superintendent William Powell Inspector Dean Bradley Allison Station Officer Lisa Maree Snell Station Officer's then girlfriend Kevin John Cooper Inspector Leo McCrory Station Officer Gregory Walter Price Station Officer Mark Robert Whybro Chief Superintendent Robert Francis Brown Inspector 9 I turn now to the applicant's evidence. 10 The applicant referred to his work history since joining the Fire Brigades in March 1995. He was promoted to Senior Firefighter on 31 March 2001. 11 Both the applicant and SF Wright gave evidence concerning two incidents on 11 and 12 January 2005 when SO Allison was relieving Station Officer at Maroubra. SO Allison was the relieving Station Officer for four shifts from 11 to 14 January. He has been employed by the Fire Brigades since December 1992 and has been a Station Officer for over two years.

12 The applicant and SF Wright said that around lunchtime on 11 January all the crew being himself, SO Allison, SF Mark Wright and SF Ian Straiton decided to go to Eastgardens for lunch. SO Allison had said he was going to have coffee with a woman who he had assisted earlier in the day when she was locked out of her apartment. While the applicant remained on the truck, the rest of the crew went inside to pick up their lunches. All the crew had radios with them. SO Allison returned about fifteen minutes later. They all then returned to the Station for lunch. 13 SF Wright said earlier that morning he was approached by a young woman who was seeking assistance to gain access to her locked apartment. He asked her if children were locked in, or if the stove had been left on. When the woman said no, he advised her of a locksmith down the road and then referred her to the Station Officer. SO Allison then told the crew he had decided to help the woman and he directed them to get the ladder. They attended the apartment and SO Allison went up the ladder and gained entry to the apartment. 14 SF Wright agreed that SO Allison had filled in all the appropriate paperwork in relation to the lock out. However, he believed SO Allison hadn't acted in accordance with Brigades' policy on lockouts. 15 SF Wright added that it was not unusual to go to Eastgardens for lunch - there was a lot of variety to choose from. All the crew were in contact with the driver. They were all only away for between 5 to 10 minutes. 16 SO Allison also referred to the lock out incident on 11 January. He said he had called the Sydney Communications Centre to advise the crew would attend the lock out. They did so, he gained access and he later submitted a report. 17 When shown the Brigades' policy dealing with lock outs (see para 7) SO Allison said he believed whether or not to assist in a lockout was up to the discretion of the Station Officer. He agreed that there had been no risk to life or property when he assisted the young woman. He believed that the risk referred to in the policy related to any risk to the firefighters. If there was such a risk, they weren't permitted to do it. 18 SO Allison agreed that the young woman wasn't even locked out of her apartment; but only her bedroom. However, he believed it was part of the Brigades' service to the community. SO Allison insisted he would have helped anyone else in similar circumstances. 19 Later when the crew went to Eastgardens for lunch, SO Allison said he purchased a coffee from the young woman he had assisted earlier in the day and obtained his lunch from another shop. He was away from the truck for around 10 to 15 minutes. SO Allison explained that he had not made any arrangements to meet the woman for coffee. She had told him she worked at the coffee shop and he had decided to visit her and see if she made it to work on time after the lockout.

20 The next day, the day shift crew consisted of the applicant, SO Allison, SF Wright and SF Anthony McDonagh. 21 The applicant deposed that around lunchtime, SO Allison said he had organised lunch with the same girl that he had met the day before. The applicant could not recall if SO Allison mentioned that he wanted to go to Eastgardens to exchange a present at the pet shop. SF Wright recalled that SO Allison said he was meeting someone for lunch. However, SF Wright and SF McDonagh wanted to pick up lunch at Maroubra. 22 The crew drove to Eastgardens where SO Allison said he would be about 40 to 45 minutes and the crew could go and get petrol or go for a drive. SF Wright said that SO Allison told them to pick him up outside in 45 minutes. The crew filled the truck up at the Shell service station on the corner of Bunnerong Rd and Maroubra Rd. 23 In oral evidence, the applicant was asked how long it would take to get to the petrol station, fill the tank (if it was half full) and pay the operator. He agreed it could take around 15 minutes. A till record from the service station shows an amount of 40 litres was put in the truck at 11.59am. The tank holds around 150 litres. 24 The applicant said that in order to kill some more time, the crew went for a drive to Malabar and looked at a house SF Wright had recently purchased. The applicant agreed they could have just gone back to Eastgardens, parked the truck and waited for SF Allison to return. When returning, the applicant said he radioed SO Allison to say they were on the way back. SO Allison said he would be out in five minutes. SF Wright said it was the crew who called SO Allison to say they were on the way back, not the reverse. 25 The applicant and SF Wright said that the crew picked up SO Allison after a period of about 40 minutes. They then drove to Maroubra where SF Wright and SF McDonagh picked up their pre ordered lunches and returned to the Station. The applicant said that, at no time, had SO Allison complained about how long they had been away. 26 SF Wright said he hadn't been happy about going to Eastgardens for lunch as he wanted a tuna salad from a Maroubra Beach cafe. SF Wright also retraced their steps after dropping off SO Allison at Eastgardens. After filling the truck with petrol, he said they went for a drive to a house that he had recently purchased at Malabar. SF Wright agreed they could have remained at Eastgardens, but SO Allison probably thought the crew would "get cranky" just waiting for him. 27 SO Allison's recollection of events on 12 January was very different. Around midmorning, he informed the crew that he needed to pick up a purchase order book from Randwick and exchange a present at a pet shop in Eastgardens. After attending a fire call around 11.00am, they went to Randwick Station, collected the book and then went to Eastgardens. 28 Upon arrival SF McDonagh said the truck needed fuel. SO Allison said he told them to go and refuel and meet him back there in 15 minutes. He said it was an accepted practice to keep the fuel tank full. 29 SO Allison said he took a hand held receiver and went into Eastgardens. He met his then girlfriend, Lisa Snell near the pet shop. They went in and exchanged the present. A receipt tendered in evidence disclosed this transaction at 12.11pm. SO Allison said he then bought a sandwich and went back outside - in all the time taken was about 15 minutes. He denied having lunch with Ms Snell or spending 20 minutes in the pet shop. 30 When he went outside, the truck wasn't there and he called the crew to ask where they were. A crew member responded and said they'd be there in a few minutes. The truck arrived around two minutes later. He agreed he was not critical of the crew for not being there when he came out. 31 In oral evidence, SO Allison denied telling the crew he was going to lunch with someone at Eastgardens and denied telling the crew to go for a drive. He agreed that he had not previously sent a crew to fill up with fuel without all the crew being on board. He denied his visit to Eastgardens was longer than 15 minutes. 32 SO Allison was shown the Brigades' print out of the fire truck movements for this day. It disclosed that there was no record of any movement of the fire truck from 11.07am to 12.45pm, when the truck is recorded as being back at the Station. 33 Ms Lisa Snell had a personal relationship with SO Allison from November 2004 to March 2005. Ms Snell confirmed that she met SO Allison at Eastgardens on 12 January to exchange a present. They spent no more than 20 minutes together and she left to get back to work at Mascot by 12.45pm. Ms Snell accepted that she didn't know where SO Allison went after they had left the shop.

34 The applicant had known Mr Neil Gill and Mr Michael Devery for about 10 and 20 years respectively. Around December 2004, Mr Gill had applied to work for the NSW Fire Brigades and the applicant had offered to help him with his application. 35 On the afternoon of 13 January, the applicant met up with Mr Devery, Mr Gill and Mr Neville Voigt (Mr Devery's employer) at Randwick Racecourse, where Mr Devery worked. Mr Gill had sat the entrance exam for the Fire Brigades the day before and they talked about the exam. The applicant offered to show Mr Gill around the Station when he attended his shift commencing at 6.00pm that night. Mr Devery and Mr Voight were also invited. 36 Between 6.00pm and 6.30pm the applicant conducted the routine tests on the firetruck. The Occurrence Book entry for 13 January disclosed that all checks, including a pump test, had been conducted at 6.15pm. However, the applicant said he had not conducted the pump test because he was waiting for his friends to arrive to show them the test. 37 In oral evidence, the applicant said that he had not told anyone that he deferred the pump test, notwithstanding the test was mandatory at the start of each shift. In fact, no test was performed that night. The applicant assumed SF Wright and SF McDonagh knew the pump test hadn't been performed because the truck hadn't left the Station. 38 The applicant said that when his friends arrived around 6.40pm, he introduced them to SF Wright. Mr Gill asked who was in charge and SF Wright said "Don't worry about him, he's upstairs in his room with a shiela". 39 The applicant agreed that he did not inform the Station Officer that he was expecting his friends. Although he knew he was upstairs, he had not sought him out and could have contacted him on the intercom. He had felt that SO Allison didn't want to be disturbed. In hindsight, the applicant wished he had done so. 40 After showing his friends around the Station, SF Wright suggested he take them out in the truck and do a pump test. SF Wright confirmed he had made this suggestion, acknowledging that he had changed his earlier statement to the investigation by including this reference. 41 The three of them climbed in the truck and the applicant explained the pre operational checks and the features of the cabin. He then started the engine and explained he was required to do a pump test, but would need to go to the back of the Station. The applicant said he then turned the engine off and went to the TV room where SF Wright and SF McDonagh were. He told them he was taking the truck to do the pump test. Both SF Wright and McDonagh said "no worries". Just before leaving, Mr Voigt arrived and joined the others in the truck. 42 The applicant said he crossed Maroubra Rd, headed up Flower St, turned left into Boyce Rd, then left into Cooper St, crossed Maroubra Rd into Mons Ave and was intending to pull up in Haig St to do the pump test. However, before doing so, the applicant received a fire call on the radio. He responded to the call, wrote down the location and address and radioed the Station which had also received the call. The applicant told the Station crew he would be there shortly and the journey back took 30 to 40 seconds. Upon arrival, his friends alighted from the truck. SF Wright and SF McDonagh were waiting at the front and SO Allison came out from the Station followed by a female. They all left for the call location at Gazelle Foods, Hillsdale. It turned out to be a false alarm. 43 The applicant deposed that there was no discussion on the way to the incident. As he was the driver he had to concentrate on the road. He said it would be virtually impossible to have a conversation with the driver from the back seat because of the noise of the sirens. However, he could hear conversations and could contribute. He denied mentioning anything about a woman "flashing her tits" on the earlier ride with his friends. 44 On the way back from Gazelle Foods, the applicant detailed the following conversation between himself and SO Allison: Allison: didn't appreciate you taking the truck out without my permission. I could have you charged for that. Natoli: The reason I didn't ask you was that you were upstairs with a girl. I could have you charged with that. Allison: If I was to go to the Inspector, he'd look more favourably on my indiscretion than yours. Natoli: If that's what you want to do, then bring it on. 45 SF Wright also recalled this conversation and said the exchange was not aggressive. SO Allison had not said anything about anyone getting the sack, and if he had, he would have sensed the conversation was getting out of hand and intervened, as he had known SO Allison for eight years. SF Wright agreed that the Station Officer had every right to inquire about what had happened and it wasn't his place to intervene. SF Wright agreed the words "bring it on" might appear to be a challenge, but he thought it was just banter between the two of them. 46 The applicant claimed that this conversation was friendly, non aggressive and just banter between them. In oral evidence, he was asked what SO Allison had done wrong. He said "having a girl in his room". However, he never intended to have SO Allison charged. He denied the conversation was a challenge to SO Allison or to his authority. He said he had known SO Allison for eight years and they had an amicable relationship. He didn't regard the words "bring it on" as a threat. 47 On the way back from Gazelle Foods, the crew stopped on Anzac Pde Maroubra to pick up a pizza which had been pre ordered by SF Wright. SF Wright maintained that he had not asked the applicant to pick up the pizza when he was out earlier in the truck with his friends. 48 In oral evidence, the applicant denied that he had taken his three friends for a joy ride. It was a short ride, close to the Station and less than a minute away. There was no skylarking or hanging out of the window calling out to members of the public. In cross examination, the applicant acknowledged that, as an officer of ten years experience, he knew he had ignored the chain of command by leaving the Station without the Station Officer's permission and it was contrary to the Regulation to carry civilians on the truck without permission. He agreed it was a serious breach of the Regulation. Mr Gill's evidence 49 Mr Neil Gill has been employed by the respondent since April 2005. Prior to this employment, Mr Gill was a high school teacher for 12 years. Mr Gill had known the applicant through a mutual friend, Mr Devery, since the early 1990's. In December 2004, Mr Gill applied for a permanent firefighter's position. Prior to doing so, Mr Gill visited the Brigades' website and noticed that as a potential applicant, the Brigades encouraged him to visit a fire station and talk to serving firefighters. 50 Soon after applying, Mr Gill met with the applicant in a social context. The applicant encouraged him about the job and suggested he visit the Station. As a result, when he stayed with Mr Devery during his Stage 1 entry exam, he and Mr Devery discussed visiting Maroubra Station. After meeting with the applicant during the day on 13 January, Mr Devery rang the applicant and arranged for them to visit that night. 51 Upon arrival at the Station around 6.30pm the applicant introduced him to the other two firefighters on duty, showed them around the Station and the truck. In oral evidence, Mr Gill said he had asked the applicant where the Station Officer was and he replied that he was upstairs with "a bird". The applicant started the engine and engaged the pump. The applicant showed them how to dial up the pressure to make sure there were no leaks. However, this procedure was not a hydrostatic pump test. 52 Mr Gill said he then heard a voice say "take the boys for a spin and do a pump test. Just take a radio with you so we can keep in touch." Mr Gill questioned if it was okay and the applicant said it was fine; they did it for kids all the time as it was good PR. As they were leaving, Mr Voigt arrived and jumped in the back seat with him and Mr Devery. 53 During this journey, Mr Gill didn't pay much attention to where they were going, as he was looking at the features of the cabin. He said, however that the windows were up and the streets were very quiet. As a 40 year old former school teacher, Mr Gill took offence at suggestions that he had been hanging out the window yelling and waving to people in the street. He insisted that neither Mr Devery or Mr Voigt had been engaged in such activity. 54 A few minutes (three to five) into the journey a call came over the radio and the applicant said he would have to drop them back at the Station. Mr Gill said he couldn't recall if the truck stopped or where they were when the call came through. The journey back took less than a minute. The applicant parked the truck with the engine running and the three of them alighted. Mr Gill claimed he observed a firefighter walking towards the pump, who he assumed was the Station Officer. He appeared to have a puzzled look on his face. In oral evidence, Mr Gill said he now knew that the Station Officer's puzzled look was because three civilians had gotten off the truck. SF Wright's evidence

55 SF Mark Wright gave evidence that he met Ms Snell when she arrived at the Station shortly after the start of the shift on 13 January. After being introduced to her by SO Allison, SO Allison said "we're going upstairs to my room." However, SO Allison gave no directions not to be disturbed or interrupted. 56 SF Wright said that he had decided on a pizza for dinner and he walked up the stairs to the first landing and called out to SO Allison asking if he wanted any dinner. SO Allison replied that he was right. SF Wright rang a local pizza shop and ordered a take away pizza. SF Wright claimed it was the usual practice for the crew to take the truck and collect whatever meals were ordered. 57 A short time later the applicant came into the TV room and asked him if it was alright if he took his friends around the block and show them how the pump worked. SF Wright could not recall if the applicant had earlier told him he was holding off doing the pump test until his friends arrived. SF Wright said that was fine and SF McDonagh said he'd book him out on the radio. SF Wright said he walked outside, grabbed the radio and told Mr Gill and Mr Devery to sit in the back of the truck with their seat belts on. 58 SF Wright then returned to the TV room. Shortly after, the alarm bells went off. The applicant called and said he was round the corner and would be out the front in 20 seconds. SF McDonagh and SF Wright took the details off the teleprinter, shut the Station door and walked to the front of the Station just as the applicant was pulling up in the truck. The three civilians alighted and SF Wright heard SO Allison ask "who are these blokes." 59 SF Wright described what happened later that night. Around 10.00pm, SF McDonagh came into the TV room and said that the Inspector was at the Station and wanted reports of what happened earlier in the evening. When Inspector Cooper came into the room SF Wright said the following exchange occurred: Wright: "What do you want me to write? I don't know what the problem is." Cooper: "Write down anything unusual that happened this evening." Wright: "I don't think anything unusual happened this evening." Cooper: "Well write that. You don't have to write anything that will incriminate you." 60 SF Wright reported as follows: I hereby report that I have observed nothing unusual on the night shift of this 13th January 2005, commencing at 1800 hrs to the writing of this report at 2200 hours.

A short time later, SF Wright asked SO Allison " what the hell's happened". SO Allison replied "Joe shouldn't have said 'bring it on' ". 61 In oral evidence, SF Wright agreed that with 10 years' experience in the Fire Brigades, the events of the evening of 13 January (including the SO having a woman in his recline) were unusual. When asked why he hadn't included any of these events in his initial report, SF Wright explained that he believed there must have been something terribly wrong, such as an altercation between the applicant and SO Allison, for two inspectors to be at the Station. As he hadn't seen the applicant or SO Allison for a couple of hours, he actually asked the Inspector if there had been a "blue"; although he agreed he hadn't noticed any tension between them earlier. As the earlier incident had happened around 6.00pm to 7.00pm, he felt it would have been unrelated to the Inspector's visit at 10.00pm. SF Wright agreed that none of the earlier events had incriminated him. 62 Further, in oral evidence SF Wright confirmed that it had not been his practice to mark the truck as being out of the Station when a pump test was performed. The pump test however, is recorded in the Occurrence Book, usually at 6.10pm after the shift has started, even though it might have been conducted before the start of the shift. The test was usually conducted in Flower St or the back yard as it was hazardous outside the front of the Station. He said it is not possible to get the truck right in to the back yard - just backed up to the gate. 63 SF Wright denied that he had told SO Allison that the applicant had gone to pick up pizza. SF Wright hadn't informed SO Allison where the truck was because he gained the impression, from the previous two days, that SO Allison didn't much care where the truck was. In further evidence, SF Wright said that SF McDonagh informed 'Communications' that the truck was mobile, even though that wasn't usual when a pump test was being performed. 64 SF Wright also denied that there was any conversation on the way to the fire call at Gazelle Foods. He said it was laughable to suggest that the driver could hear what someone in the back was saying or vice versa. However, it may be possible for the two persons in the front to hear each other. Other Union evidence

65 Mr Craig Harris has held the rank of Station Officer since 1997 and he is presently on secondment from the Fire Brigades as the Secretary of the Union. He described the role of a Station Officer and the requirement to apply common sense with regard to the Regulation, In Orders and Standing Orders. 66 Mr Harris said the instruction to inform the Inspector every time a Station Officer leaves the Station is ludicrous and unworkable. Similarly, the requirement for a firefighter not to leave the Station in a second appliance, if the Station Officer is away, is unworkable. Mr Harris said in his experience, it was not uncommon for firefighters to leave the Station for short periods without the Station Officer's approval, but with another firefighter's approval, on condition they are contactable by radio. 67 Mr Harris said Station Officers and their crews are increasingly involved in community awareness and education and visits to fire stations by schools and the public are encouraged. Civilians are often taken aboard the fire truck and other persons are sometimes used in operational situations. Mr Harris deposed that it was a common practice which was encouraged, for new recruits to visit fire stations for orientation and to help with their applications. Thus, he had been surprised that the applicant's conduct warranted dismissal. 68 Mr Harris stated that fire call response times will vary, but it is acceptable for an appliance to take at least two minutes from the time of the call to responding. 69 Mr Harris said that he has had many female visitors to the station, but it was an unwritten rule that female visitors were never taken into the recline area with the door closed. This issue had actually been discussed when the Union was recently reviewing new fire station design with senior management. 70 In a reply affidavit, Mr Harris disagreed with SO McCrory's assertion of where pump tests could be performed at Maroubra Station. Because of fumes it was necessary to move the vehicle outside the building and it was unsafe to conduct the test on the apron in front of the Station and impractical in the backyard. 71 Mr Harris denied that it was necessary on all occasions to notify Communications when a truck was outside the Station. For example, a brake test wouldn't be booked out or recorded in the Occurrence Book. Mr Harris pointed to a number of inconsistencies in the FireCAD reports with the Station's Occurrence Book. 72 Mr Harris had never permitted children to joy ride in a fire truck. He said that any activities involving children on fire appliances are conducted under strict safety controls. 73 Mr Harris stated that if he wished to have a private conversation with a female visitor, he would not do so in the recline. It was necessary to maintain propriety in order to ensure respect and discipline in the station. 74 In oral evidence, Mr Harris said he believed that even though SO Allison had only been at Maroubra for two shifts, the crew would have had a perception of his conduct and self-discipline. 75 It was Mr Harris' belief that reference to the unauthorised use of a truck had to do with the use of the truck for personal purposes. In this case, the applicant had told the other officers what he was doing as he believed the Station Officer was occupied and he had taken account of what happened on the two days previous. 76 Ms De Vecchis is the Union's Industrial Officer. She gave evidence of the distances involved on the route said to have been taken by the applicant on 13 January. She had re-traced the route with him on 11 August. Using a stopwatch she estimated that it took 49 seconds to return to the Station from where the applicant said he pulled up in Mons Avenue. At all times, the furthest distance away was 1 minute and 15 seconds. 77 Ms De Vecchis had also re-traced SO Allison's movements at Eastgardens on 13 January.

SO Allison's evidence 78 On the evening of 13 January, SO Allison had arranged for his girlfriend, Ms Snell to come to the Station to copy photos of her dog from a laptop onto a compact disc. She arrived around 6.10pm and, after he showed her around the Station, they proceeded upstairs to his recline and closed the door. They both sat at a desk and proceeded to copy the photos. 79 SO Allison agreed that he made no entry in the Station's Occurrence Book concerning Ms Snell. This was because personal visits were not recorded. When shown the Brigades' policy, SO Allison agreed that all visitors must be entered into the Occurrence Book and no distinction is made between tradespersons and personal visits. However, he maintained that this requirement was regularly breached for personal visits. He claimed that, on this occasion, he made a "minor clerical oversight." 80 Around 6.50pm, SO Allison heard SF Wright call out from downstairs asking if he wanted a pizza for dinner. SO Allison opened the door and called back that he had his dinner in the fridge. 81 Around 7.00pm, SO Allison said he observed the truck leave the Station and travel north along Flower Street. He immediately went downstairs and asked SF Wright where the truck had gone. SF Wright said "Joe's gone to get pizzas." SO Allison then returned to his recline. In oral evidence, SO Allison agreed that he did not direct the applicant to return immediately. He said if he had notified 'Communications' the applicant would have probably been back anyway. He denied he would have been embarrassed about being asked where his truck was and he wouldn't have known. As he had expected the applicant to return shortly, he would have determined what action to take at that time and would have reported the matter. 82 When the fire call came about 10 minutes later, he and Ms Snell immediately went downstairs and he asked where the truck was. SF Wright said that the applicant would be back in a few minutes. When the truck returned, around two to four minutes later, he saw three civilians alight from the truck. When he said "what the hell is going on here?" he received no response. 83 In oral evidence, SO Allison accepted that the time taken from the fire call to arrival at Gazelle Foods was 6 minutes 28 seconds. This meant the time waiting for the truck's return was unlikely to have been 5 minutes. 84 On route to the call at Gazelle Foods, SO Allison said the applicant turned around from the front seat and said something about a "sheila flashing her tits at him" (he took this to mean when the applicant and his friends were out on the truck). The applicant, SF Wright and SF McDonagh all laughed at this. In oral evidence, SO Allison agreed that he made no mention of this conversation in his report that night. He explained he had been upset and it was a brief report. He didn't think that skylarking was sufficiently important to include it in his report. However, he believed he had mentioned it to Inspector Cooper on the night. 85 On returning from the fire call, SO Allison said the conversation with the applicant was as follows: We then headed back to the Station. I can recall asking Senior Firefighter Natoli words to the effect of "What's going on here tonight?" he replied with words to the effect of "Just relax, I was just going for a cruise around the block". I then stated words to the effect of "What are you doing anything that you could get the sack for? What if someone reported you? What if you had an accident? What if someone got hurt?" Senior Firefighter Natoli responded with words to the effect of "You can't lead your life with what-ifs. Anyway you had a chick on the Station." Then I replied "We can get the Inspector out and I can explain what I've done tonight and you can explain what you've done and we'll see who loses". He then stated "Bring it on". I took Senior Firefighter Natoli's statement as a threat, and I felt threatened by it. There was no further conversation in the appliance. 86 SO Allison said he felt threatened by the applicant's comments and was angry with him. Later, when they were having dinner, he felt there was an uncomfortable atmosphere in the room. In oral evidence, SO Allison said that the applicant was threatening both himself personally and his position of authority, in that the applicant believed he didn't have the courage to call the Inspector. He rejected the suggestion that he felt threatened because of the embarrassment he would face if his own activities that night were revealed. He claimed he was perfectly entitled to have a female visitor at the Station. SO Allison said he had never tried to hide the fact that he had a girl in his recline. It was suggested to him that by only mentioning a "visitor" in his report, he was not telling the whole truth. He denied being embarrassed by his activities that night and said he had always been honest about what he was doing. 87 In oral evidence, SO Allison said that he believed the fire truck had been stolen and what the applicant did amounted to "theft". He agreed he had never said to anyone that he regarded the truck as having been stolen. However, he believed "unauthorised use" amounted to the same thing. 88 SO Allison agreed it was one and a half hours before he called the Inspector. He explained that he wanted to calm down, give due consideration to the matter and seek counsel from other officers. He said he felt the applicant's actions were of such serious concern that he had sought advice from his brother, who was also a Station Officer and another Station Officer friend. 89 When he contacted Inspector Cooper, he asked if they could have an off record conversation. Inspector Cooper phoned back and told SO Allison to prepare a report and informed him he would be coming out to the Station. When Inspectors Cooper and Webb arrived they had discussed the matter further. SO Allison told the Inspector that he couldn't complete the shift. (On advice from his doctor, he didn't work the next night as well). When he was leaving the Station, SF Wright asked him what had happened. He replied "Joe should not have said 'bring it on'". In oral evidence, SO Allison said he had been very stressed by the whole episode and had felt threatened by the applicant. 90 Ms Snell corroborated SO Allison's version of what had occurred when she went to the Station that night. She added that when she saw the fire truck leaving she had said "That's not supposed to happen." SO Allison agreed and went downstairs to find out what was going on. When he returned, she said she didn't think a fire truck was supposed to leave the Station without all the firefighters on board. Ms Snell recalled SO Allison appeared noticeably anxious. 91 In oral evidence, Ms Snell said she had never been to a fire station before and had no familiarity with the operations of the Fire Brigades. The investigation 92 The investigation into the incident commenced around 10.00pm that night when Inspectors Cooper and Webb arrived at the Station. The applicant was asked what had occurred earlier in the night. He had explained that he took three friends, one of whom had sat for the Brigades' entry exam, on a tour of the Station and for a short drive around the block in the truck. He had not sought permission from the Station Officer because SO Allison "was upstairs entertaining a lady friend in his bedroom". 93 The applicant was directed to write a report immediately. He agreed that there was no mention in this report of his intention of doing a pump test when he took the vehicle out. He explained that it had been late at night, he had been caught off guard and had been rushed into preparing a statement. In any event, no pump test was performed so, he said, maybe that was why he didn't mention it at the time. He had mentioned the pump test in his report to the internal inquiry. He denied having been influenced to mention the pump test by the ensuing press reports. 94 After Inspectors Cooper and Webb had discussed the matter, the applicant was informed he was suspended on full pay. Inspector Webb advised him to contact the Union. The applicant then left the Station. 95 On 15 January the applicant was informed that a preliminary inquiry was to be conducted by the respondent. The applicant requested the Union to act on his behalf and the Union made a written submission to the inquiry. 96 A formal inquiry was held on 13 and 14 April. This inquiry was taped and transcribed. 97 On 14 June the applicant was advised that the formal inquiry had recommended his dismissal. He subsequently received a show cause notice from Commissioner Greg Mullins. The Union responded on his behalf on 8 July 2005 and the applicant was subsequently dismissed on 20 July. 98 The events of 13 January were widely reported in the Daily Telegraph and Sunday Telegraph newspapers. The applicant claimed that he had been subject to constant media attention from 14 February for about a month. Reporters had attempted to contact him, had knocked on his door and put notes under his door. As a result, he screened his calls and wouldn't answer his door. On advice from the Union, he didn't speak to the media. 99 In this regard, the applicant deposed as follows: I am very distressed that I have lost my job with the Fire Brigade. I loved being a firefighter and miss the camaraderie of the job. My lengthy suspension, followed by losing my job, has affected my health and well-being. I realize now that my actions on 13 January 2005 were in breach of Brigades Regulation. My actions on the night were out of character and I had an exemplary service record for the previous ten years of my employment. I am anxious to be reinstated to the Brigades so that I can resume serving the community in my capacity as a firefighter. 100 In oral evidence on 25 October the applicant said he had not sought any alternative employment because his main focus was to be reinstated to his former position and he wasn't interested in any other job. The respondent's evidence

101 Inspector Kevin Cooper has held the rank of Inspector for eight years, having commenced employment with the Fire Brigades in March 1977. 102 Inspector Cooper said that around 8.50pm on 13 January he received a call from SO Allison. The SO had told him that he had been using the computer with a female visitor in his recline and had observed the fire truck moving up the street. He told him he went downstairs to inquire and was told that the truck had gone to pick up pizzas. 103 Inspector Cooper asked him if he had given permission. SO Allison replied no. During the truck's absence the Station had received a fire call and when the applicant returned a couple of minutes later, three civilians were on board. The Inspector asked why SO Allison had delayed reporting the incident. SO Allison said he felt threatened and unsure of what to do. The Inspector said SO Allison's voice was unsteady and he had appeared upset. 104 The Inspector then spoke with Chief Superintendent Paul Rugg and it was agreed that if the allegations were correct, the applicant should be suspended pending a full investigation. The Inspector then spoke to Inspector Graham Webb who was required to attend with him at the Station. He also had a conversation with Superintendent Gary Meers by mobile phone. 105 When they arrived at the Station they met SO Allison outside. He informed them of the details of the incident and said that during the drive, the civilians had been hanging out of the windows, yahooing and whistling at girls. The SO said he wished to proceed on sick leave after he wrote a report of the incident. 106 Inspector Cooper met with the applicant and asked him about his version of the incident. He had described taking visitors for a ride on the truck, one of whom had sat for the Fire Brigades' entrance exam. He had claimed he was not out getting pizzas. The applicant said he did not think his actions were unreasonable. The applicant explained that he hadn't asked for permission as the SO was in his recline with a female visitor with the door closed and he did not want to interrupt him. He said SF McDonagh and SF Wright were aware he was taking the truck, although he acknowledged there was no entry in the Occurrence Book. 107 The Inspector asked the applicant, SF Wright and SF McDonagh to furnish him with reports of the incident before he left. After receiving all the reports, he and Inspector Webb jointly agreed that the applicant should be suspended pending further inquiries. As Inspector Webb was independent of the Area Command, it was decided he should formally suspend the applicant from duty. The other officers were informed and told not to discuss the matter. 108 Inspector Cooper deposed that at no time that evening, did any of the firefighters mention the truck being taken for a pump test or road test. 109 Before Inspector Cooper's cross examination the Commission heard a tape of a conversation between the Inspector and Superintendent Bob Packham recorded when the Inspector was travelling to the Station that night. Extracts from the conversation are relevant to record here: Just talked to Paul Rugg. I'm going out to 70 Station now. I'll tell you what's happened but no one knows, just keep it to yourself. Yeah. SO walked upstairs, looked out the window and there's the appliance driving up the street. So he runs downstairs, the other two blokes are there and he said where's the firefighter with the appliance and they said oh he's gone to get pizzas. Oh. Didn't tell State Comms, didn't tell the SO, didn't tell anybody. Next thing he comes back with three civilians on board. Oh. The plot thickens. I'm going out to suspend him. The SO is gonna go off on stress leave. I've just talked to Ruggie, he is ringing Benson now. I'm gonna ring, what's his name, Gary Meers now and fill him on the situation. And I am getting Webbie, Graeme Webb from in town to come out and witness it and to me for me to suspend him or either Webbie to suspend him. We'll work it out between the two of us. OK? OK. Why do they do these stupid things? Because it's been inherent problems at this Station and I've been told there was inherent problems but I've never had anything to go on but now I've got something to go on so hopefully we'll blow the station to pieces. Yeah. I don't want to know his name but is it a permanent SO or an RO? It's..., the RO is Dean Allison and the bloke who did it was Joe Natoli. I don't know the firie. Oh okay. Do you know Dean Allison? A little - not really. He's alright. Yeah. I hope he blew up. I'll tell you a story about that too, later. I'll go down there now and get this sorted out. 110 The Inspector agreed that he told Superintendent Packham he was going out to suspend the applicant. He explained that this was a poor choice of words which didn't reflect what he later did at the Station. He said it was a conversation with an old friend and he hadn't known he was being taped. In any event, he was just being succinct. The Inspector agreed he should have said that he was to investigate the matter. 111 The Inspector was asked about his words that the Station had inherent problems and he would "blow the Station to pieces". Again, he said this was very poorly worded - it was just an "off the cuff" comment. He had been aware for some months of problems with laxness and discipline at the Station and had brought it to the attention of Superintendent Gymer. Although he couldn't point to anything specific, he said "complacency had crept in". Nevertheless, the Inspector agreed that he never had any problems with the applicant. 112 When asked about his comments about SO Allison, that he will tell him "a story about that too later", the Inspector said that this comment related to SO Allison being agitated and upset. He denied the comment related to SO Allison having his girlfriend at the Station. 113 Inspector Cooper was asked about his comment "I got Webbie to suspend him". He described this too as a poor choice of words. He emphasised that the person suspending someone must be satisfied it is appropriate. 114 Inspector Cooper agreed that on the night the applicant admitted what he'd done and he had admired him for his honesty. The Inspector agreed there was nothing to suggest that the applicant could not perform his normal duties that night, including attending a fire. He agreed that the fire call to Gazelle Foods was attended within the recommended timeframe. Although Inspector Cooper conceded he hadn't asked the applicant how far away he'd been, the issue was taking the appliance without permission, not how far away he was. 115 Inspector Allison was questioned about the Brigades' lock out procedure. He said it was not difficult to understand. In respect to visitors signing the Occurrence Book, Inspector Cooper said the policy should be applied sensibly and flexibly. It wouldn't apply to a parent dropping off lunch to an officer, or flowers being delivered for a wedding anniversary, or a civilian inquiring of directions. In these circumstances, there is a certain amount of discretion available to the Station Officer. The Inspector believed that with Ms Snell's visit it had not been necessary to record it in the Occurrence Book. 116 Inspector Cooper was shown a confidential memo from now Commissioner Greg Mullins dated 31 March 2005, which spoke of issues arising from this incident and the fact that there was no counselling or HR management procedures in dealing with disciplinary matters. The Inspector had not seen this memo before. I extract the following passages from the memo: At each of the three Operational Commanders' forums that I have attended in the last fortnight, I have discussed at length "professional stds", in the wake of the Maroubra incident. The inspectors have been very supportive of my request that they visit stations and make it clear to SOs what is required in terms of dress standards, appliances, station etc (so that the SO is responsible for getting the crew to "do the right thing" at all times rather than having it imposed externally). ....... Why would we go this way? The Maroubra incident may not have occurred if there had been some sort of intervention before it became a disciplinary issue, however we have no procedures outside the disciplinary silo. Performance counselling is part of good HR management provided it is not misused as a big stick. 117 Station Officer McCrory's evidence went to the Brigades' procedures for pump testing and road testing of fire appliances. He described the pump test as follows: In regard to pump testing, at the start of each shift the rostered motor driver is required to perform the following hydraulic pump test: Ensure the first aid tank is full; Open to tank to pump valve; Close all deliveries and collectors ie inlets and outlets; Engage the pump; Ensure the pump is primed; Accelerate until 1035kPa is achieved on the pressure gauge; Visually check for leaks from pump castings and fittings; If the pump has a removable collector step one is to remove the collector and fit a blank cap. This test is carried out in the Station and solely by the motor driver. This test should take the motor driver approximately sixty to seventy five seconds to complete. There is no need to leave the Station to perform this test. However the test may be conducted in the engine bay, by roadway, the apron at the front of the Station or the back of the Station in the yard if applicable. 118 SO McCrory said that he had visited Maroubra Station and concluded that the pump test could be performed in the engine bay, the roadway, the apron at the front of the Station or in the backyard. 119 SO McCrory said the Occurrence Book entry for 13 January 2005 indicated the pump test had been conducted at 18.15 hours and reported as correct. 120 Inspector Robert Brown oversees the maintenance of call taking and dispatch of resources and services to incidents and day-to-day operational communications. This is tracked through a computer aided dispatch and incident log system ('FireCAD') and shows when a fire appliance and crew are in or out of the station, their availability to response or reason for lack of availability. 121 Inspector Brown deposed that when a fire appliance is taken from the Station, this event must be reported to the Communication Centre, recorded in the Occurrence Book and in the FireCAD. 122 Inspector Brown had reviewed the records of the Maroubra Station and the FireCAD system from 17 December 2004 to 17 January 2005 and found no occasion where there is a record of the appliance being taken from the Station in order to carry out a pump test. 123 Station Commander Gregory Price's evidence was in response to Mr Harris's affidavit about the role of the Station Officer. He was not required for cross examination. Mr Price specifically responded as follows:

a) he had never allowed children to joy ride in a fire appliance due to occupational health and safety guidelines and the Regulation;

b) it was not acceptable under any circumstances for firefighters to leave the Station without the approval of the Station Officer;

c) when an appliance is taken on a road test, an entry is made in the Occurrence Book and the Sydney Communications Centre is notified. The appliance remains close to the Station and contactable by radio telephone.

d) with the permission of the Station Officer, firefighters can leave the Station to purchase meals or other items. The firefighter must be contactable at all times;

e) response times to emergency calls can vary, but it is critical to respond as quickly as possible;

f) he has had female visitors on fire station premises, both for personal and professional reasons. He knew of no long held, unwritten rule of conduct regarding female visitors to stations. If it was appropriate to have a private conversation, he would not hesitate to do so behind a closed door. 124 Superintendent Gregory Buckley is the Manager, Operations Research Unit. This Unit is responsible for the quantitative analysis of resource allocation appropriate to the State's fire risk profile. In particular, the Unit looks at appropriate fire station locations to ensure effective fire protection resources. The Superintendent's evidence dealt with response times. He said at para 7 of his affidavit: The NSW Fire Brigades resource planning is based on average behaviour determined statistically. The seven minutes six seconds response time is broken down according to: one minute forty five seconds allowed for call handling and mobilisation; and five minutes twenty one seconds for the road travel of fire engines to the incident address. The road travel time is based on the shortest possible route on the road network together with average travel speeds based on Roads and Traffic Authority NSW data.

125 Inspector William Powell is a fire investigator. His evidence dealt with the critical time factors involved in fire behaviour and development. He said at para 6 of his affidavit: It is important for the NSW Fire Brigades is to immediately respond to fires in order to meet their obligations under the Fire Brigades Act. "(1) when there is an alarm of fire, the Fire Brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger" - Fire Brigades Act 1989 section 11. This is fundamentally required due to the inherent nature of fire behaviour, where fire growth and spread can endanger life and property. 126 Chief Superintendent Mark Whybrow is the Assistant Director Operational Communications. His Unit is responsible for emergency call taking and dispatch using a computer aided dispatch system known as FireCAD. Superintendent Whybrow detailed the Unit's role when a call is received. He also attached the FireCAD details from Maroubra Station on 13 and 14 January 2005. 127 Inspector Kevin John Adams' evidence consisted of all the correspondence, reports, records of interview, media reports and other documents relating to the respondent's investigation and formal inquiry into the incident. This extensive material was not disputed and it is unnecessary to quote extensively from it. 128 At this juncture, I would say that I am satisfied that the disciplinary process was conducted according to the Brigades' Regulation, policies and procedures and that apart from what occurred on the night of 13 January 2005 and the role of the media (about which I shall refer later), the applicant was given every opportunity to defend his position, was appropriately and competently represented at all times and put all that he wished to put in explanation and mitigation to the appropriate decision makers. SUBMISSIONS

129 Counsel for both parties provided helpful written outlines of submissions which were elaborated on during oral addresses. I reproduce these outlines with the necessary editing. For the applicant

130 This is an application for the reinstatement of the applicant who, until the incident which led to his dismissal, was a senior firefighter of almost ten year's exemplary service with the NSW Fire Brigades. The Commission has before it, as well as the witness evidence, an agreed statement of facts and the chronology of relevant events.

131 The incident which led to the applicant's dismissal attracted a good deal of publicity fuelled by an inaccurate anonymous letter. It is submitted that in order to assess the applicant's conduct, the whole of the circumstances surrounding the events, as well as the tone at the Maroubra Station need to be appreciated.

132 It would be no exaggeration to say that the few days during which relieving SO Dean Allison acted as Station Officer at Maroubra were relatively relaxed. SO Allison was a station officer, but had been known for many years to SF Wright and the applicant as a peer. Both had socialised with him. There was a degree of familiarity.

133 If any guide to SO Allison's management style was needed, it was surely provided early in his tour of duty when a young woman attended the Station to seek their assistance for a 'lock out'. There was only one problem with that request - it was not a lock out of the kind the Fire Brigades is authorised to attend.

134 There is a Fire Brigades 'In order' which deals with lock outs. This order makes it clear that the Fire Brigade is only authorised to attend to lockouts where there is a real risk to persons and/or property. There was never any suggestion that the 'lock out' here involved any such risk - indeed the locked door was an internal door!

135 Notwithstanding this irregularity, the crew had attended and SO Allison personally officiated to render assistance to the young woman. According to SF Wright, he had spent some time at the location and when he returned to the truck announced that he had arranged to see the woman for coffee at Eastgardens that lunchtime! It would require supreme insensitivity not to gain an impression of SO Allison from this conduct.

136 With all respect to SO Allison, his attempts in the witness box to provide an explanation for this irregular departure from the clear terms of the In Order - rather than the obvious one - were unconvincing to the point of embarrassment. There is no ambiguity in the In Order. Inspector Cooper agreed that it was easily understood. It could not have been clearer - the young woman should have been sent to a locksmith.

137 It is submitted that the Commission would accept that the truck was taken from the Station to attend to a call which was outside the relevant In Order and that the motivation was, in truth, the opportunity to impress a young woman - obviously a successful strategy since SO Allison was able to arrange a meeting for coffee with her later.

138 This somewhat 'relaxed' approach continued into the next day. SO Allison had announced to the crew that he had a luncheon engagement and wanted to go back to Eastgardens. The crew said that SO Allison said he would be about 45 minutes and he told them to get some fuel and 'go for a drive'.

139 It is submitted that the time lines which were established by reference to documentary material in conjunction with estimates of movements within Eastgardens, demonstrate that the luncheon break was consistent with the evidence of the firefighters, and not SO Allison.

140 The copy of the fuel purchase order established that the purchase of the fuel occurred at 11.59. The transaction at Pets Paradise occurred at 12.11. Ms Snell said that she spent 'no more than 20 minutes' with SO Allison. SO Allison agreed that he then went and purchased a sandwich at the Wellbeing Healthy Food Store. The crew said that they had gone for a drive to Malabar to kill time before returning to collect SO Allison. They said that they radioed him on approach and picked him up. SO Allison said that he radioed them and they arrived in approximately 2 minutes. In any event, there was no suggestion that SO Allison had rebuked them for any delay.

141 There were significant differences between SO Allison and Ms Snell on the length of the Eastgardens visit. Ms De Vecchis' statement and Ms Snell's evidence provides the timelines for movement within Eastgardens. It is submitted that the following estimates can be drawn from that material: 20 mins in the Pets Paradise store with Ms Snell; 6 minutes walking in and out (assuming SO Allison was not in a particular hurry); 5 mins to buy lunch (walking to Well Being Food and buying lunch). This estimate makes no allowance for any other distraction. It is submitted that any objective consideration of the times involved in moving around Eastgardens supports the conclusion that SO Allison spent a great deal more time than 15 minutes from drop off to pick up.

142 It is submitted that these two occasions set the scene, so far as SO Allison's 'management style' was concerned.

143 On 13 January when the civilians attended the Station that evening, nothing was planned apart from a tour of the Station. There was no element of pre-mediation about the drive. SO Allison was in his recline with his (then) girlfriend, and one might conclude the same, somewhat casual atmosphere which had been a feature of the previous two days, prevailed.

144 Mr Gill and SF Wright both agreed that it was SF Wright who first made the suggestion that the applicant take the men out in the truck. However, the applicant accepted that it was his decision - albeit with acquiescence and/or agreement of the other firefighters including SF Wright, who was the most senior on the Station, after the Station Officer. The applicant's intention was to take them for a short ride 'around the block' and to do a pump test to demonstrate this to the men. The applicant took Mr Gill and Mr Devery on board and when exiting the station Mr Voigt arrived and he boarded the truck as well. All three sat in the rear seat.

145 It is submitted that Mr Gill's evidence should be more than sufficient to allay any fears that anything untoward in the nature of yahooing or sky larking occurred that evening. Mr Gill is a mature individual and had been a school teacher for some years. He was also a keen applicant for a firefighter's position - and has since been recruited as one. His presentation and common sense suggests that he would not have been, or been a party to irresponsible behaviour.

146 As it happened, shortly after the men had commenced their drive, a fire call came in. The applicant took the address and other details, confirmed with his colleagues, via the radio, that the station had the message, and immediately returned to the station (49 seconds). Upon the truck's return, the civilians disembarked, the crew boarded and the truck set out for Gazelle Foods. The truck arrived in the time of 6 mins 28 secs - well within the required response times and only 38 seconds after the first responder - a pumper from Matraville Station.

147 On the return from Gazelle Foods, the applicant and SO Allison had an exchange about what had happened. Both SF Wright and the applicant described the exchange as being in the nature of 'banter' between the men. It must be remembered that these men had all known each other as peers for a long period. Nothing that was said was in the nature of a 'threat' - yet this was how SO Allison took it. Realistically, it was in the nature of a 'tit for tat' comment because of Allison's situation on the night.

148 SO Allison well knew that, once the issue of the absent truck was raised, the first question which would be asked would be about the whereabouts of the Station Officer when this occurred. Despite the evasions and rationalisations - both from SO Allison and Inspector Cooper - any objective observer would conclude that it was 'not a good look' for the Brigades and 'not a good look' for SO Allison. It was not at all surprising then that SO Allison brooded for some while about what he should do next.

149 Ms Snell's visit that night was not recorded in the Occurrence Book. This was a departure from the unambiguous In Order which deals with visitors of all kinds. Despite what Inspector Cooper said, it is hard to accept that the Fire Brigades would ordinarily countenance a firefighter's (or Station Officer's) girlfriend or partner paying extended visits to the recline behind closed doors at any time; let alone during working hours.

150 There were significant differences in the accounts given by SO Allison and Ms Snell of the visit. SO Allison said that he and Ms Snell were sitting at the desk at the front of the recline, from where one can look down on the street, and that he was able to see the truck heading away from the station up Flower Street. Ms Snell said that the laptop was not on the desk, but on a chair in the main room in the SO's recline, that they were facing east towards the beach, and that she had been standing. At some point she was sitting, as she got up when she heard a noise at the window.

151 When asked whether they heard the truck leave the Station they gave different answers. SO Allison said that he didn't hear the truck exit the Station - all he could hear was general fire station noise, and that what he heard could have been the generator on the truck being checked. Ms Snell said that she heard engine noise, got up and went to the window to have a look.

152 When the bells went off, SO Allison said that he and Ms Snell went downstairs immediately whereupon he went into the watch room, while she waited in the engine bay. They then both waited out the front for the truck. SO Allison said it took 1 min to go downstairs, he then waited between 2 and 4 mins for the truck, suggesting that it was 3 - 5 mins before the crew was able to respond. This was contradicted by the applicant, SF Wright and Mr Gill.

153 Ms Snell said that SO Allison had gotten up straight away and went downstairs, that he came back upstairs and said he was waiting for the truck to return. She had grabbed her belongings and said she'd be leaving. She went downstairs, did not say goodbye to anyone, and left the Station. As she was leaving, the truck pulled up, and the civilians got off. She made no mention of them both waiting outside for the truck to return. It is submitted that this time line is more consistent with the 49 seconds estimate that it would have taken the truck to return from the point where it received the call.

154 The applicant's actions were not so egregious that any immediate or decisive step was forthcoming from SO Allison. SO Allison had not asked for any further explanation or elaboration from the applicant - e.g. how far he went, why he had done it, who else knew and how and why, and whether he was going to pick up pizzas. What SO Allison did, was ring his brother and a colleague and discuss the matter. He was still so angst ridden about the incidents - and it is suggested, embarrassed by the view likely to be taken of his own activities - that he had first asked Inspector Cooper for an 'off the record' chat.

155 From the point when Inspector Cooper became involved the "die was well and truly cast" - Inspector Cooper, in effect had received his riding instructions from his superior Chief Inspector Rugg and from that point his actions were pre-determined. It is submitted that the transcript of the 'wave file' makes it crystal clear what was going to happen. Despite Inspector Cooper's best endeavours to explain the obvious away, it was plain what he intended and how it was to be executed. The Commission is invited to consider those conversations in detail as they were very revealing regarding the way this matter has been handled.

156 Regardless of the circumstances, the applicant was to be peremptorily dealt with - regardless of the fact that he was otherwise an exemplary firefighter of long standing and that he was able and well capable of continuing to perform his role (and had done so all evening and would have turned out to a fire if one had occurred between 7.30 and 10.00 pm). Inspector Cooper agreed that on the night the applicant had dealt with his questions with honesty.

157 It is submitted that the decision to dismiss the applicant was unfair in all the circumstances and disproportionate to the 'offence'. The applicant was a long serving (10 year plus) firefighter with a good record - not a single blemish. Inspector Cooper had conceded that he was honest and a good firefighter. He has expressed contrition and remorse for his actions which were in no way pre-mediated and whereon response times were not compromised. Yet he was dismissed and other less draconian disciplinary measures were apparently not seriously considered.

158 The applicant had received the ultimate punishment of dismissal. SO Allison had not so much as been reprimanded - or even spoken to - about his management style and his failure to observe proper procedures.

159 The truth now seems to be that the applicant's punishment and the response to his actions were exacerbated by a perception held by Inspector Cooper about 'C Platoon' at Maroubra. That perception was so vivid that Inspector Cooper was going to use the incident to (metaphorically) 'blow the station to pieces' - yet only the applicant has suffered any explicit disciplinary treatment. It may be that the others (but not SO Allison) were, in effect disciplined by transfers - but no disciplinary process has occurred. What has been exposed, in Inspector Cooper's evidence, is a curious management strategy, which involves saying nothing about perceived problems, but then splitting up the crew.

160 Equally curious was the fact that despite the 'perception' that the shift was 'dysfunctional', nothing at all had been done for months by management to address this perception - even to see whether the perception was justified. Once again this reveals significant management deficiencies.

161 It is submitted that Inspector Cooper's evidence shows beyond argument that the whole matter was dealt with in a sub optimal fashion. Commissioner Mullins' email makes it clear that there are management and human relations problems which need to be addressed within the Brigades. Inconsistent treatment and disproportionate treatment are no answer to these problems - rather a symptom of them. It is also notable that none of the senior decision makers have been called to give evidence in this matter. As late as July 2005, the events of the night were still mis-stated, even by the Commissioner's memo to the Minister concerning the incident.

162 In addition to the ordinary human consequences of a long standing firefighter losing a much loved job, the applicant had suffered at the hands of the media as a consequence of the mischievous anonymous letter. Details of the impact upon the applicant are set out in his witness statement. It is submitted that this is a case which cries out for reinstatement and that the appropriate order would be for the applicant's reinstatement.

163 Following a preliminary inquiry conducted pursuant to cl 41 of the Regulation, the applicant was charged with having breached cl 19(2) and cl 31(1) of the Regulation. An internal inquiry into the breaches of discipline was conducted pursuant to cl 43 of the Regulation. The inquiry determined that the charges were proven. After consideration of the inquiry's report and submissions made on behalf of the applicant, the Commissioner determined that the appropriate punishment for the breaches of discipline was termination of employment. 164 The Commission has before it in evidence, the complete brief of evidence considered by the internal inquiry, transcripts of the oral evidence of all inquiry witnesses, including the applicant, SF Wright, SO Allison and Inspector Cooper who also gave evidence in the proceedings. 165 Notwithstanding the applicant's plea of "not guilty" to the charges of misconduct, the evidence before the internal inquiry and this Commission clearly established that the applicant did misconduct himself as per the charges. 166 Much of the evidence before the Commission was in effect, evidence of mitigation of the misconduct. The respondent submits that the evidence presented for the applicant as to why he, (a) absented himself from the Station without the permission of the Station Officer, and (b) used the fire appliance for an unauthorized purpose, is inconsistent, contradictory and in some instances untruthful and as such, should not be considered as mitigating the offence. Rather, the fact that the applicant had embellished facts, omitted facts or been untruthful about the events should be given appropriate consideration if the Commission determines the applicant's dismissal was harsh, unfair or unreasonable. 167 The evidence of the applicant about the events of 13 January 2005 begins with his written statement. That statement is essentially a contemporaneous document. It makes no mention of the intention to perform a pump test and clearly states that the idea to take the civilians for a short drive was his. 168 The applicant's letter of 9 February 2005, mentions the pump test as being the reason the appliance was taken out of the station - the applicant maintained his original position that it was his idea. The document was produced 2 days after the first media report on the incident and the suggestion that the appliance left the station to pick up pizza. 169 During his evidence before the internal inquiry, the applicant stated that he deliberately deferred doing the mandatory start of shift pump test, so that he could show his friends, i.e. the only reason the truck left the Station was to perform the pump test. The shift in the applicant's evidence is marked. On the evening of 13 January 2005, he could offer no legitimate reason as to why he took the truck out of the Station without permission. Within 2 days of the media referring to the "pizza run" a convenient normal operational requirement of the truck, the pump test was mentioned as the reason why the truck left the Station and by the time the applicant gave his evidence to the internal inquiry, the pump test became the main reason for the truck leaving the Station. 170 Until recently the applicant had never stated that anyone, other than himself, initiated the drive with the civilians on board the truck. Remarkably, he stated that Mr Wright suggested not only the drive but also that he perform the pump test. This evidence was glaringly inconsistent with what the applicant had previously stated, in writing and under oath. It was also inconsistent with the evidence he gave to this Commission where he confirmed the evidence he gave to the internal inquiry, that he had deferred the pump test for the sole purpose of showing his friends. 171 The applicant's evidence as to why he did not seek permission from SO Allison should not be accepted. He had significant opportunity to speak with his Station officer before the shift began and at the beginning of the shift. On his evidence, he chose not to tell his Station Officer that he had arranged for guests to visit the Station. He also chose not to tell his Station Officer of his decision to defer the mandatory pump test. The suggestion that SO Allison was not contactable at the time immediately prior to the truck leaving the station is simply not supported by the evidence. The applicant gave no evidence that he ever intended to seek permission. The information that SO Allison had a guest in his recline was a convenient, but feeble excuse adopted by the applicant to justify his failure to seek permission. 172 The applicant's evidence that he had not intended to challenge the authority of the Station Officer by responding with "bring it on" when his conduct was questioned, cannot be accepted. The phrase cannot be interpreted as meaning anything else but a challenge. 173 SF Wright provided a statement on the evening of the incident stating, that nothing unusual had occurred. He now concedes that something unusual did occur. SF Wright provided a further statement and he gave sworn evidence to the internal inquiry. At no time, had he stated that he made the suggestion to the applicant that he take the three civilians for a drive. In his statement of 9 September 2005, SF Wright made the remarkable admission that it had been his idea that the applicant take the civilians out in the truck. This admission was remarkable for a number of reasons - firstly, the timing; secondly, it was inconsistent with his earlier evidence and, thirdly, it contradicted the evidence of the applicant.

174 Unlike the applicant and SF Wright, the evidence of SO Allison was consistent from the outset. His version of the events of that evening has not wavered, despite lengthy cross examination at the internal inquiry and before this Commission. His evidence about the events of 13 January 2005 was corroborated by the evidence of Ms Snell. A critical point of evidence was what SO Allison did when he saw the truck leaving the Station. He said he went downstairs and was told by SF Wright that the applicant had taken the truck to pick up pizza. Ms Snell had confirmed that SO Allison left the room and went downstairs and returned noticeably anxious. 175 The evidence of SO Allison about what took place on the way to the fire call and on the way back, has remained unchanged since 13 January 2005. It is submitted that his evidence should be preferred to that of either the applicant or SF Wright. 176 SO Allison had taken the words "bring it on" as a challenge to his position and authority as Station Officer. His reaction to this challenge was one that should be commended, rather than condemned. His evidence about why he delayed contacting Inspector Cooper about the incident demonstrated that he gave careful and appropriate consideration to what he should do. He sought counsel from officers of similar rank and when satisfied as to the appropriate course of action, he had contacted his Inspector and reported the events of the evening. 177 SO Allison's evidence about his conduct on 11 and 12 January should also be preferred to that of the applicant and SF Wright. The suggestion that SO Allison conducted himself improperly on either of these 2 days was not supported by the evidence. With regard to the events of 12 January and the visit to Eastgardens, SO Allison's evidence was significantly corroborated by the evidence of Ms Snell and the Local Order Purchase Book obtained from Randwick Fire Station. 178 As to the allegation that SO Allison had directed his crew to "go and get petrol and then go for a drive for 30 or 40 mins", his evidence, that he neither suggested the crew obtain petrol - that was the decision of the driver - or go for a drive, should be preferred to that of SF Wright and the applicant. The Commission would recall that despite being unable to recall where the crew supposedly went for the drive, both the applicant and SF Wright had belatedly recalled that they had in fact driven to Malabar to inspect SF Wright's new home. 179 Accordingly, the respondent submits that there is ample evidence before the Commission to confirm the findings of the internal inquiry. 180 The respondent further submits that in light of such confirmation and the conduct of the applicant after 13 January where he had contrived to mislead the inquiry as to the reasons for his conduct on the evening, the decision to terminate his employment was not harsh, unfair or unreasonable. 181 If, however, the Commission determines that the decision to terminate the employment of the applicant was harsh unfair or unreasonable, the respondent submits that the remedy sought by the applicant should not be granted. It is clear from the evidence, that the applicant gave both to the internal inquiry and this Commission, that he is prepared to be less then frank and honest despite swearing an oath to tell the truth. On this basis, he had demonstrated that he is not a person who could be relied upon to comply with the requirements of cl 16 of the Regulation. 182 As to the question of compensation, the respondent submits that the applicant, on his own admission, had made no efforts to mitigate his financial loss since his employment was terminated and this failure by the applicant should be given appropriate consideration by the Commission. CONSIDERATION AND CONCLUSIONS

183 The Commission does not cavel with the evidence of Inspector Cooper about the discipline at Maroubra Fire Station in January 2005 being less than what was to be expected by the New South Wales Fire Brigades, nor should I say, by the public. The atmosphere was described, rather generously, as "lax". It seems to me that a culture had developed at Maroubra Station which, while not easy to particularise, was open to encourage the type of conduct displayed by the applicant on the night of 13 January. Indeed, this lax environment was not only condoned by at least one of the Station officers, but he too had fallen victim to it. I shall return to SO Allison's role in all of this shortly. 184 Having said that, I wish to stress that the applicant's conduct could not in any way, be justified. However, the culture in which he operated must go a long way to explaining his and the officers' behaviour on the night. 185 There can be no doubt that senior management was not only aware of the problems at Maroubra, but were anxious to do something about it when the events of 13 January came to light. Inspector Cooper's amazingly brutal observations in his taped conversation with Commissioner Bob Packham as he travelled to the Maroubra Station on 13 January are extraordinarily candid: Packham: OK. Why do they do these stupid things? Cooper: Because it's been inherent at this station and I've been told there was inherent problems but I've never had anything to go on but now I've got something to go on so hopefully we'll blow the station to pieces. 186 What I found particularly troubling during Inspector Cooper's testimony, was the senior management's approach to these inherent problems. Putting the applicant's circumstances to one side for the moment, Inspector Cooper claimed to have informed his superiors about the inherent problems months beforehand. Nothing appears to have been done. 187 Moreover, Inspector Cooper's simplistic approach to addressing these concerns more generally was to utilise the Brigades' transfer policy to shift officers to locations where they might be 'straightened up' by a more disciplined environment. Amazingly, the officers are not told that this is the reason for their transfer. Nevertheless, in Inspector Cooper's mind, this policy seems to have the desired effect. 188 The internal memo dated 31 March from Commissioner Greg Mullins to other senior officers demonstrates top level concern with the existing practice of discipline directly flowing from the Maroubra incident. In it he says: At each of the three Operational Commanders' forums that I have attended in the last fortnight, I have discussed at length "professional stds", in the wake of the Maroubra incident. The inspectors have been very supportive of my request that they visit Stations and make it clear to SOs what is required in terms of dress standards, appliances, station etc (so that the SO is responsible for getting the crew to "do the right thing" at all times rather than having it imposed externally). ..... Why would we go this way? The Maroubra incident may not have occurred if there had been some sort of intervention before it became a disciplinary issue, however we have no procedures outside the disciplinary silo. Performance counselling is part of good HR management provided it is not misused as a big stick. 189 Seen in this context, it was hardly surprising that the applicant engaged in the conduct he did on the night of 13 January. The questions do arise however, should he alone be made to pay the ultimate price of dismissal and was dismissal too harsh a penalty? I shall return to these questions shortly. 190 What then of SO Allison's role? It must be said, from the outset, that SO Allison is not on trial here and, in some respects, it is unfair to level criticism against him when none has been seemingly levelled against him by the respondent. Nevertheless, he played a pivotal role in the events of 13 January and his conduct and behaviour cannot, in my opinion, simply be glossed over or explained away. While I accept SO Allison to be a competent and dedicated officer, regrettably I find that his evidence before the Commission to be, for the most part, self serving and unconvincing. I will refer to his evidence concerning the three incidents detailed during the proceedings.

191 SO Allison personally responded to a plea for help from a young woman who had locked herself out of her bedroom. He claimed that his actions were not in breach of the Brigades' Standing Order on Lock Outs in that there was no risk to his officers (as he did it himself) and in any event, he had a discretion to act in the matter as the Brigades were always available to help the community. 192 With respect, SO Allison's convoluted explanations are nonsense. Not only was his interpretation of the Standing Order so obviously wrong (as Ms Brus correctly acknowledged) but his interpretation was so far fetched as to be absurd. Inspector Cooper specifically disavowed SO Allison's interpretation and recognised, as any ordinary bystander would, that the language of the order was clear and unequivocal. There was no threat to property or safety of any person. Extraordinarily, the young female was not even locked out of her apartment, but merely her bedroom. SO Allison's act of Arthurian chivalry was in clear breach of the Brigades' Standing Order and, I believe he knew it to be so. The young woman should have been directed to a locksmith. 193 I would add that if SO Allison genuinely has such a difficulty with the English language (about which I have some doubt) then he is in dire need of some specially targeted training. In view of SO Allison's ludicrous justification for assisting the young woman, as he expressed in the witness box, I have little confidence that his evidence on other crucial issues is credible.

194 SO Allison said he went to Eastgardens to exchange a present at a pet shop, purchase his lunch and then called the crew to pick him up - taking no more than fifteen minutes. The evidence of the applicant and SF Wright was that SO Allison told the crew to refuel the appliance, go for a drive and come back in 30 or 40 minutes. In my assessment, SO Allison's evidence was undermined by Ms Snell's evidence that they spent no more than 20 minutes together at the pet shop. To have walked to the pet shop, spending no more than 20 minutes there, collecting lunch and walking back outside in 15 minutes is not sustainable or realistic. 195 There is no doubt that there was a pet shop exchange, but I do not accept Mr Allison's version of the incident as only taking fifteen minutes and that he never told the crew to go for a drive. It is instructive that there was no evidence of SO Allison rebuking the crew for returning when they did. I believe SO Allison did tell the crew to go for a drive in order for him to conduct personal business and meet with his girlfriend, Ms Snell at the pet shop. I accept the evidence of the applicant and SF Wright in this regard. Events of the 13 January

196 Ms Snell gave some curious and less than convincing evidence about what she said to SO Allison when they first saw the truck leave the Station. She said she didn't think that was supposed to happen and that all firefighters should have been on board the truck. 197 Firstly, Ms Snell's oral evidence was that she had never been to a fire station and had no familiarity with the operations of the Fire Brigades. This was a strangely informative response from someone who didn't know anything about the operations of the Fire Brigades. Secondly, SO Allison makes absolutely no mention of these comments in his evidence. 198 When viewed with other inconsistencies with the evidence of SO Allison, I am bound to say that I don't think these comments were made and that much of Ms Snell's other evidence was intended to simply bolster SO Allison's inaccurate version of events.

199 Nevertheless, SO Allison accepted that he had committed a technical breach of the Standing Order related to visitors to the Station when he did not record Ms Snell's visit on the night of the 13 January. He explained that it was his experience that personal visits were not recorded and he had not expected his fellow officers to similarly follow the Standing Orders for personal visits. 200 However, there can be absolutely no doubt that the Standing Order makes no allowance for flexibility or the exercise of discretion as to whether or not to record visitors to the Station. During his evidence, Inspector Cooper persistently expressed the view that the order should be read sensibly - for example, it wouldn't be necessary to record a partner dropping off lunch to an officer or a florist delivering flowers for an anniversary or a civilian asking for directions. I accept that the Standing Order should be applied sensibly and ordinarily would be. However, with respect, Inspector Cooper's explanation misses the point entirely and cannot explain away SO Allison's conduct. This instance involved a Station officer's girlfriend spending around an hour at the Station and, for the most part, in the officer's recline with the door closed. I ask this question, does the respondent condone such behaviour or, more importantly, would the public expect the respondent to condone such behaviour? I very much doubt it. 201 That being said, I do not care to speculate about what SO Allison was doing with his girlfriend in his recline with the door closed. His behaviour might be exactly as he and Ms Snell innocently described it. However, that also is not the point. There would surely be a perception in an ordinary person's mind that SO Allison's actions were, at the very least, unwise and would leave him open, rightly or wrongly, to accusations of inappropriate behaviour at the workplace. 202 Returning briefly to SO Allison's breach of the Standing Order, it is relevant in my opinion, when determining this matter that the applicant was roundly criticised for not entering his visitor's names in the Occurrence Book, yet SO Allison has not been disciplined in any way for the same offence. 203 Regrettably, I have to say that SO Allison's evidence was deliberately designed to mask his own indiscretions and cast the applicant in the worst possible light. For example, in his evidence before the Commission SO Allison described the applicant's conduct as amounting to the theft of the truck. He equated unauthorised use to stealing. At no time during the respondent's investigation, or in its conclusions, did anyone describe the applicant's conduct as theft. This was a gross misrepresentation designed, as I said, to cast the applicant in the worst possible light. 204 Similarly, I regard SO Allison's evidence in para 21 of his affidavit in the same vein. There he claimed the applicant had told him something about a "sheila flashing her tits" (when they went for a drive in the truck). No mention was made of this in SO Allison's initial report after the incident. It emerged much later, in order to further tarnish the applicant's character and embellish the incident of the missing truck. I reject any suggestion that there was skylarking or clowning around in the truck. It is to be noted that the truck was only away for eight minutes. Moreover, it beggars belief that a candidate for a job in the Brigades, Mr Gill, would have participated in such immature and childish conduct that might have seriously jeopardised his future application. I regard Mr Gill's offence at such a suggestion as completely justified and I found him to be a credible and impressive witness.

205 For SO Allison to claim he was not embarrassed by having to explain his whereabouts when the truck went missing defies commonsense. His embarrassment explains perfectly why he called his brother and another officer and mulled over what to do for some time before finally reporting the incident to Inspector Cooper. Indeed he wanted to discuss the matter with the Inspector off the record. It also neatly explains why Inspector Cooper said in the taped conversation when asked by Mr Packham did SO Allison blow up over the incident "I'll tell you a story about that too, later". I find Inspector Cooper's explanation of this exchange to be most implausible. I have no doubts that it was SO Allison's conduct on the night which was the "story" to be later told. 206 SO Allison's embarrassment would also be explained by his less than frank admissions in his initial report in which he described having a visitor at the Station. At that time, he didn't disclose it was his girlfriend and she had been there for an hour in his recline. 207 It seems to me that SO Allison's reporting of the incident was motivated more by how he felt by the applicant saying "bring it on" than by the incident itself. His affidavit said he was angry with the applicant's attitude and when he left that night all he told SF Wright was "Joe should not have said 'bring it on'". 208 It is necessary, I think to address the attack by Ms Brus on the credibility of the applicant and SF Wright's testimony concerning whether SF Wright had suggested the applicant perform a pump test when he took the truck out for a drive. 209 While I accept that the applicant did not mention this on the night of 13 January (or indeed mention a pump test at all), I do not accept that the applicant or SF Wright deliberately set out to mislead the inquiry or this Commission. After all, it didn't really matter to the crux of the issue who initiated the drive. The applicant acknowledged that he should have sought the station officer's permission and didn't do so. Moreover, for SF Wright to change his story, knowing full well that it may well incriminate him was either an extraordinary display of mateship loyalty or an honest omission which he sought to correct. I prefer the later explanation. In addition, as I found Mr Gill to be an impressive and convincing witness, I accept that he too heard someone, other than the applicant, say something about taking the boys out in the truck for a spin and do a pump test. The effect of the Press reports

210 Over Ms Brus' objection, Mr Nolan successfully sought the admission into evidence of an anonymous letter, dated 20 January 2005, which had been sent to the Minister for Emergency Services and attached media reports arising from this letter having also been sent to the Southern Courier Newspaper. The letter was said to have been authored by a relieving firefighter and gave details of the incident and other incidents which the anonymous person sought to have investigated. 211 Not surprisingly, when the letter found its way to the media, it resulted in widespread media interest in the story. Unfortunately, as both parties agreed, the letter contained significant factual errors; notwithstanding the undoubted 'inside' knowledge of the author. Nevertheless, there can be no doubt the letter was the genesis of the media's frenetic interest in the issue. 212 The applicant gave evidence of the effect the media's attention had on him. He was phoned and harassed at home; eventually disconnecting his phone and not using his front door. I accept that the media's harassment of him and the false reporting had a significant and deleterious effect on him and his family. 213 While it is difficult to say conclusively that the media interest in the story determined the fate of the applicant, ensuring his dismissal, I don't believe it could be seriously suggested that the respondent was immune to the media's commentary on the matter. Senior officers of the respondent were quick to realise the implications for the Brigades' reputation and standing. As Superintendent Baker later said there was no doubt the Fire Brigades "got a hiding in the press". It is reasonable to conclude that the respondent was keen to publicly demonstrate that it was taking the issue very seriously and would act decisively. 214 Ms Brus strenuously denied that the media had any impact on the respondent's investigation or its result. The fact that the applicant was not dismissed for six months, when the media had well and truly lost interest in the matter, is not really relevant. Having regard for the mischievous and well placed anonymous complainant, one might well imagine that had the respondent failed to take decisive action, another anonymous letter would have reignited the issue, just as these Commission proceedings have. 215 In this context, it would be unrealistic and artificial not to conclude that the media frenzy had nothing to do with the decision making process or its result. I hasten to add that the respondent, as Ms Brus correctly submitted, could do little to dampen the media's thirst for the sensational copy. It could not, and had no control over the media's response or interest. But, on the other hand, I accept the applicant's evidence that the media's attention on him and its inaccurate reporting has been personally very distressing and hurtful. 216 It is to be noted that the respondent's investigation of the matter did not have the benefit of the evidence of the civilian witnesses and was conducted in circumstances where its results might have been the subject of further unwarranted attention, and even criticism. That is not to say that the investigation was anything but thorough and exhaustive or that its outcome might have been different if it had heard from the civilian witnesses. However, this Commission is legislatively mandated under the Act to examine all of the relevant matters and determine in an objective manner, whether the applicant's dismissal was fair in all the circumstances or in the words of the statute, whether the applicant's dismissal was harsh, unreasonable or unjust.

Legal and General Principles 217 That leads me to now discuss the legal and general principles which are to be applied in a case such as this. 218 In a case of summary dismissal for misconduct four questions usually arise for consideration. Firstly, was the conduct alleged against the dismissed employee proven? Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? Thirdly, did the conduct constitute a fundamental and wilful repudiation of the contract of employment? Fourthly, were mitigating factors taken into account? 219 The first question is easily disposed of in that the applicant accepts that he did the wrong thing on the evening of the 13 January. He admitted it from the beginning and is sorry for his actions. Thus, it can be said that the conduct alleged against him has been proven. 220 Ms Brus correctly I think, submitted that this was really a case of the applicant pleading mitigation. Certainly Mr Nolan's submissions were directed towards whether the dismissal was too harsh in all the circumstances, having regard for the seriousness of the misconduct, the applicant's otherwise unblemished ten year record and issues of procedural unfairness. I concur with this characterisation of the case. I shall therefore deal with these matters by reference to the pertinent authorities. Was the dismissal too harsh a penalty?

221 In Byrne and Anor v Australian Airlines (1995) 61 IR 32 the High Court said a termination of employment "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" (p72). In Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 at p302 the Full Commission said: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows : I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. See also Little v Commissioner of Police (No.2) (2002) 112 IR 212, Busways v Johnson (1994) 55 IR 255 and Wells v Commissioner of Police (2000) 100 IR 106. These authorities plainly make clear that it is open for the Commission to review the decision of the employer and determine that a particular dismissal was too severe a penalty.

222 It is obvious that the summary dismissal of an employee for misconduct can have serious and sometimes long term implications for the employee. It is for this reason that the Full Bench in Franklins Ltd v Webb (1996) 72 IR 257 reminded employers of the need to be fully satisfied that the misconduct had been committed and that the conduct justified dismissal. The Full Bench said at p261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal.

223 In Hill v Department of Juvenile Justice [2000] NSWIRComm 128, serious allegations concerning the supply of drugs to juvenile offenders, by a person in charge of their welfare were the alleged reasons for the employee's dismissal. The allegations had no basis in fact and could not be proven. I said at para 62-63: In Standley v Electronics Boutique Australia Pty Ltd , IRC 4516 of 1998, 18 March 1999, I considered the serious implications for an employee where allegations of misconduct are made. I said at p14: It hardly needs to be said that summary dismissal is the most serious form of sanction an employer can take against an employee. It can, not only serve as a means of punishing the employee for transgressions in the then existing employment relationship but can, and often does, jeopardise and diminish the employee's future employment prospects.

A finding by this Commission that a summary dismissal was justified, is a most serious matter which may unhappily burden and grievously harm an employee for years into the future.

See also my discussion of this matter in Thornton and Happy Hours Pre School Kindergarten , IRC5333 of 1999, 29 July 1999 and Taggart and Bell Sports Australia , IRC5224 of 1998, 10 September 1999.

The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously effect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so. See also my comments in Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council [2001] NSWIRComm 91 and Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27. 224 I accept that the applicant in this case has been seriously impacted by his dismissal and the resultant media frenzy arising from the night of the incident. He has lost a job which he loved and has suffered embarrassment and hurt. Repudiation of employment contract

225 The allegations against the applicant were described as misconduct - the additional adjectives "wilful" or "serious" were not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee which strikes at the very core of the employment relationship.

226 Did the serious misconduct here alleged constitute a wilful repudiation of the contract of employment by the applicant? In deliberating on this question, I have had regard to the following four authorities: In North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p616: It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.

The 1959 English case referred to makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be " wilful ": … I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is "wilful": it does (in other words) connote a deliberate flouting of the essential contractual conditions. (P288). Hungerford J in Day v Lumley Life Limited (1999) 90 IR 70, described the employment relationship as a serious contractual relationship involving rights and obligations on both sides: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way, which permits one party, here, the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. In Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160, his Honour, McHugh J, dealt with the ordinary relationship of the employer and employee at common law: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: "[c]onduct which in respect of important matters is incompatible with the fulfillment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises." In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the "confidence" essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer's counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company's service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee's summary dismissal.

It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal. See also Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66; Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis [2002] NSWIRComm 46 and TNT Australia Pty Limited, trading as TNT Express and Hunt v Hornsby Shire Council [2001] NSWIRComm 242. 227 In my view, there could be no reasonable basis for describing the applicant's conduct on the night of the 13 January as wilful. His actions were not premeditated. I accept that he was helping a potential firefighter by showing him the workings of the truck. I do not believe it was particularly relevant whether a pump test was intended to be conducted. What was important was that while he had left the Station without permission, he was in radio contact and the response to the fire call was able to occur within the prescribed time. This fact demonstrates that he could not have been very far away. In any event, the absence was recorded as being eight minutes.

228 In view of all the circumstances disclosed in this case, I have formed the view that the dismissal of the applicant was too harsh a penalty. In making this finding, I have had particular regard to the following matters:

(a) The applicant's conduct should be viewed in the context of the culture which existed at Maroubra Fire Station which I described earlier.

(b) The respondent had accepted that this incident might not have happened if more appropriate counselling and disciplinary measures had been in place.

(c) The applicant's dismissal was disproportionate to the gravity of the misconduct.

(d) The outcome for the applicant was unfair in comparison to the treatment afforded to the other officers involved in the incident. See Burrows v Commissioner of Police [2001] NSWIRComm 333.

(e) The applicant has from the outset accepted he had " done the wrong thing ". He was sorry for his behaviour and contrite. I note that Inspector Cooper described his responses on the night as " honest ".

(f) It is reasonable to conclude that the applicant was made an example of in the context of the lax attitude at Maroubra and in order to ensure that the respondent would be seen by the press and the public to have acted decisively and severely in respect to the incident.

(f) Little, if any consideration was given to the applicant's ten year record of employment and his otherwise unblemished record. As McLeay C said in Paris v Bankstown City Council (unreported) McLeay , Matter IRC5427 of 1997, 22 January 1999: It is clear that no account was taken of mitigating circumstances, either associated with the misconduct (namely, that the applicant's supervisor was the instigator of the misconduct) or the employee's work record (which showed a good record of over forty years). It has long been accepted that the whole of an employment relationship is relevant to a question of dismissal (see John Lysaght (Australia) Lts v FIA; Re York (1972) AILR 517 per Sheppard J). In my view, it is an unfair to ignore a good work record of long standing as it would be to ignore incidences of previous misconduct. I note the comments of the Full Commission [Cullen J, Schmidt J and Tabbaa CC] in Water Board v Water & Maritime Industry Union, matter no IRC 1531 of 1993, 25 November 1993: Whether the circumstances of a particular dismissal are harsh, unjust or unreasonable under Part 8 of Chapter 3 of the Act, involves a consideration of all the relevant circumstances. These matters include both the position of the employee, including his employment history and the position of the employer. An employer may need to consider a particular employee's impact on other employees, as well as other matters. The applicant in this case had a long standing good work record which should have been taken into account. 229 In light of these observations, the Commission is comfortably satisfied that the applicant's dismissal was harsh, unreasonable and unjust within the meaning of Pt 6 ch 2 of the Act. Procedural Fairness

230 I turn now to discuss the issue of procedural fairness in the context of an unfair dismissal. 231 In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2002) 128 IR 37 a Full Bench of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of serious misconduct. The Full Bench said at para 118: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have travelled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious. These observations reflect the statutory instruction found at s88 of the Act and the relevant authorities which identify the matters the Commission may take into account when determining an unfair dismissal claim. These matters include, but are not limited to, whether: (i) reason/s for dismissal were given; (ii) if so, did the reason/s have a basis in fact? (iii) the applicant was given an opportunity to make out a defence or give an explanation of his or her behavior;

(iv) any warning of unsatisfactory performance was given; (v) the applicant sought, but was refused reinstatement or reemployment.

It is pertinent to note that the Commission may take other matters into account which it considers relevant (s88(f)).

232 In Byrne & Anor v Australian Airlines, the High Court, concluded that "it is clear that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust'". To this authority may be added the weight of a number of Full Bench decisions of the Commission. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 the Full Bench 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. and later, at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust .

233 The above reference to Buckman is Buckman v Burdekin (1998) 85 IR 415. In that case, the Full Bench said at p418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness. See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Anor v Australian Airlines; Burke v McGirr (1995) 87 IR 54 ; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 and Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32. 234 As I said earlier, I am satisfied from an examination of the detailed documentary material, that the respondent's investigation of the incident was thorough and exhaustive. It is also plain that the applicant was, at all times, represented by his Union and was given every opportunity to respond to the allegations and put any defence in support of his position. 235 The respondent attempted to demonstrate that it rigorously complied with all of its obligations under the relevant Regulation governing the suspension and dismissal of the applicant. However, as disclosed by the evidence, that is not the full picture. I believe there were certain procedural issues which compounded the unfairness which characterised the applicant's dismissal and about which Mr Nolan's indignation was understandable. 236 One only needs to refer to Inspector Cooper's evidence in this regard. His evidence was most enlightening. I am certain Inspector Cooper was severely embarrassed by what he had said to his friend, Commissioner Packham on the way to the Station, obviously not knowing the conversation was being recorded. It is abundantly clear from the transcript of the conversation what management's real motivations and intentions were from the outset. 237 Inspector Cooper was heading to Maroubra with the plain intention of suspending the applicant without having even spoken to him. As will be seen from Regulation 37, this was contrary to the policy. To suggest that it was really Inspector Webb who suspended the applicant is disingenuous. Inspector Cooper knew there were problems at the Station and he now had an opportunity to fix them, when he said: Because it's been inherent problems at this station and I've been told there was inherent problems but I've never had anything to go on but now I've got something to go on so hopefully we'll blow this station to pieces. 238 I do not accept Inspector Cooper's explanation that he made a poor choice of words which didn't reflect his later actions. On the contrary, management's later actions were entirely consistent with what Inspector Cooper intended. He was shown to be brutally frank and honest with his intentions. Nothing, in my judgement, could be clearer. 239 Having said that, I do not think one could find a more blatant example of the "die having been cast" and nothing was going to deter management from its intended course of action. In this regard, the applicant was cruelly denied a presumption of innocence, not only before a full and proper investigation, but even before he had put his side of the story. I cannot imagine a more serious denial of procedural fairness in an unfair dismissal case. 240 Before I leave this matter, I raise again (as I did during the proceedings) my concerns with the Regulation relating to the suspension of an officer. 241 According to cl 37 of the Regulation an officer may be suspended where, in the opinion of the representative of the Commissioner, the misconduct has occurred. As I see it, this provision raises a number of problems. A determination of the misconduct is made at a very preliminary stage in the investigation. In my experience, it is not usual for the suspension of an employee for alleged misconduct to be accompanied by an opinion by the employer that the misconduct had in fact occurred. It seems a little like "putting the cart before the horse". The raison d'etre for suspension is to allow a full and proper investigation with the employee not at the workplace, so that a cool and objective inquiry can occur. To convict before the inquiry is even underway, is to my mind, a rather bizarre way of going about disciplinary matters. 242 For the reasons I have earlier expressed, I am satisfied the applicant has been unfairly dismissed, substantively and procedurally, within the meaning of Pt 6 ch 2 of the Act.

Relief to be ordered 243 It needs to be emphasised that the statutory emphasis and policy intent of the Act is directed towards the reinstatement of an unfairly dismissed employee. It is only when the Commission makes a finding of the impracticality of reinstatement, that consideration may be given to ordering compensation pursuant to s89(5) of the Act. 244 The Commission, of course, takes into account the views of the parties, particularly where an employee does not seek to be reinstated. Such a view is often perfectly understandable, particularly if the employee has found alternative employment. The applicant in this case, desperately wants his job back. 245 Mere discomfort for the employer, is not sufficient to establish the impracticability of reinstatement. I have had regard for what was said by the Full Bench in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at para 35: [35] The appellant sought reinstatement and compensation for wages lost as a result of the dismissal. In considering the practicability of reinstatement, we are very mindful of the approach adopted 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 pp 191-192 where their Honours observed that "each case must be decided on its own merits" but that "in most cases, the employment relationship is capable of withstanding some friction and doubts". As their Honours observed further, "what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive" and that "if the employer is of even average fair-mindedness, (the problems) are likely to prove short-lived". Those comments have been cited with approval by Full Benches of this Commission in Hollingsworth v Commissioner of Police (No 2) (88 IR at pp 341-342), CCH Australia Ltd v Bowen (1998) 79 IR 206 at pp 217-218 and Oswald v New South Wales Police Service (1999) 90 IR 42 at pp 67-68. We affirm the approach as appropriate in the present case. 246 As I said earlier, the applicant seeks reinstatement and in view of my findings of the unfairness of the applicant's dismissal, I see no good reason, practical or otherwise, not to so order. I do not believe that the employment relationship has been irrevocably destroyed. In addition, I reject Ms Brus' criticism of the applicant's character and apprehend no other reason why reinstatement would be held to be impractical. 247 Mr Nolan sought the applicant's reinstatement, without loss of continuity and with the payment of lost remuneration. This submission raises one residual matter of some concern. 248 I accept the applicant has been entirely focused on this case and on securing reinstatement to the job he loves. His candid admission was he had not sought any alternative employment. However, I am obliged by s89(6) of the Act, when considering the relief to be ordered, to have regard for attempts by the applicant to secure alternative employment. I have taken that matter into account, in addition to the admissions of his indiscretions on the night of 13 January when determining, as a matter of discretion, the extent of any payment for lost remuneration. I have also had regard for the applicant's age, his period of unblemished service and the impact the dismissal had on him. 249 Accordingly, I propose to order the reinstatement of the applicant, without loss of continuity, and with the payment of lost remuneration from 1 October 2005. ORDERS

250 The Industrial Relations Commission of New South Wales orders that:

1. Pursuant to s89(1) of the Industrial Relations Act 1996, the respondent, the New South Wales Fire Brigades, shall reinstate the applicant, Mr Joseph Natoli, to his former position of senior firefighter.

2. Pursuant to s89(3) of the Industrial Relations Act 1996, the respondent, the New South Wales Fire Brigades, shall pay to the applicant, Mr Joseph Natoli, an amount of remuneration equal to the applicant's earnings for the period from 1 October 2005 to reinstatement. The calculation of earnings being based upon the payments the applicant received whilst on suspension. 3) Pursuant to s89(4) of the Industrial Relations Act 1996, the applicant's period of employment with the New South Wales Fire Brigades shall not be taken as having been broken by his dismissal on 20 July 2005.

4. In respect to Order (1), pursuant to s89(8) of the Industrial Relations Act 1996, the parties are to confer as to the terms of the applicant's reinstatement provided that reinstatement shall occur within 14 days of today.

5. In respect to Order (2), the amount so ordered shall be paid within 21 days of today. 251 These proceedings are now concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.