Walsham v Commissioner of Fire and Rescue NSW

The appellant's employment history

1. The appellant is 56 years old. He joined the NSW Fire Brigades (the predecessor to FRNSW) in 1984 as a Retained Firefighter at the Toronto Fire Station. He transferred to Teralba Fire Station on 1 November 1988.
2. The appellant became Deputy Captain of Teralba Fire Station on 1 April 1990. He became Captain of the station on 1 November 1996.
3. The appellant's primary employment is at Tomago Aluminium as a team trainer, a job which he has held for approximately 18 years without experiencing any employment problems in his role.
4. The appellant has lived in Teralba for 34 years.
5. As Captain of Teralba Fire Station, the appellant was responsible for approximately 18 Firefighters, including two Deputy Captains, as well as for the overall management of the station, both administratively and operationally.
6. As referred to at [2] above, according to the appellant, during the five years leading up to the incident on 7 January 2019, he had been dealing with "outright insubordination and continual disrespect" from the two Deputy Captains, Nathan Goodbun and Justin Avery. This issue is dealt with in greater detail later in this decision.

Facilitated Conference June 2018

1. On 19 June 2018 a Facilitated Conference was held for employees stationed at Teralba Fire Station. The conference was managed by Jan McGinley, Professional Standards Adviser, FRNSW, together with Elise Ayre, Senior Investigation Officer and Eleanor Parker, Senior Project Officer representing FRNSW Professional Standards. In attendance were the appellant, Deputy Captains Goodbun and Avery as well as Retained Firefighters James Doolan, Troy Hobbs, Dale Lanesbury, Daniel Miller, Matthew Randall, Jason Searl, Dale Walsham, Danny Walsham, Nicholas O'Brien, Peter Sullivan and Metropolitan North Area Commander Chief Superintendent Brett Davies together with Superintendent Greg Windeatt.
2. According to Ms McGinley, the Facilitated Conference was held due to a history of issues dating back to 2016 which were raised by Teralba Fire Station staff which directly or indirectly involved the appellant. On 22 June 2018, Ms McGinley drafted a file note in respect of the Facilitated Conference held on 19 June 2018. The file note contained the following: Conference Commenced at 6:00pm with an introduction by Jan McGinley, Elise Ayre and C/Supt Brett Davies. This included confirmation of rules and expectations and described the format for the Conference. Staff discussed the following issues regarding station management, station administration and operational concerns including: • Pay approvals - delays and little or no visibility of roster • Drills - scheduled evening not agreed and content inadequate • Authorised Duties roster - not structured or displayed in station • Gartan issues - availability and messaging • SIMS checks - not being completed - clarified by Area Commander & Zone Commander as a safety issue • Engine Keeping - role and duties undefined - clarified by Area Commander & Zone Commander • Tanker Roster - the Area Commander directed this be stopped immediately. The discussion did not appear to address specific issues concerning interpersonal conflict between individuals however, it was felt that the issues raised were those that had contributed to the conflict and poor culture within Teralba station. Throughout the Conference, numerous statements made by the majority of Teralba staff was that there was a lack of respect and trust within the station which had led to poor communication and little or no transparency which appeared to be the main concerns affecting all staff. There was a general perception that the relationship between Captain and Deputy Captains was poor. Some staff stated that they needed to start to work together as this was affecting the station. Agreement An agreement was collaboratively developed and signed by all in attendance. The following points are included in the agreement: 1. Management team meet post drill. 2. Drill will be held on the first week and the third week of the month on Mondays at 1830hrs. 3. All of the team will have the opportunity to present at drill with the support and assistance of the management team or senior members. 4. Debrief after every call to discuss; What went well? What could we do better? 5. Create a lessons learned 6. Follow proper systems and procedures within the station ie SIMS Checks, Gartan Availability etc. 7. Rostering of authorised duties displayed in the station. Captain and Deputy Captains to co-ordinate. 8. First 10 minutes of Drill to discuss genera! issues or concerns 9. Respect for confidentiality 10. Past is in the past 11. Mutual respect and don't overthink things 12. Respect and value what everyone brings to the workplace 13. Have fun and enjoy 14. Cut each other some slack 15. Be self aware 16. If you haven't got anything nice to say don't say it at all The conference concluded at approximately 10:30pm. Additional Comments: Stuart Walsham: Raised concern about hidden agendas. This was questioned by D/Cpt Justin Avery. Stuart referred to pays not being approved by the Deputy Captains. Both Deputy Captains advised that they are reluctant to approve pays without any visibility or knowledge of roster or attendance. Nathan Goodbun: Advised of his concerns for lack of transparency and governance. Confirmed his reluctance to approve pays without visibility of rosters or attendance. Justin Avery: Questioned Stuart Walsham regarding his comments referring to hidden agendas. Danny Walsham: Stated that he had had enough of the issues at the station. He advised that station management team needed to sort out their issues and start to work together. Dale Walsham: His behaviour was loud and defensive towards anyone who raised concerns. His issues were directed mainly towards Dale Lanesbury. He raised concerns regarding his lack of responding to direction concerning the use of a line of hose at an incident. Dale Lanesbury provided his version of events but this was not accepted by Dale Walsham. A direct comment made by a member who was perceived to be impartial was that Dale Walsham's communication was inappropriate towards others at times. Dale acknowledged this comment and apologised. Dale Lanesbury: Raised issues in relation to lack of adequate systems and governance. A lack of transparency. Lack of proper coaching. C/Supt Brett Davies acknowledged that there were issues between Dale Walsham and Dale Lanesbury that they needed to sort out. Supt Windeatt had to direct Dale Walsham to stop interrupting him when he was speaking. It was noted that after this direction, Dale Walsham's behaviour changed. He engaged positively and contributed to develop the agreement. He suggested adding point 10, "past is in the past''. The signed agreement was scanned and sent to zone and station management on Wednesday, 20 June. Station management were instructed to brief Brent Jackson, who was unable to attend the conference. They were instructed to brief him on the conference discussion and outcome and to arrange for him to sign the agreement. They were also instructed to display a copy of the agreement on the noticeboard within station. Jan McGinley Professional Standards Advisor

Incident on 10 October 2018

1. Shortly after the Facilitated Conference on 19 June 2018, the appellant commenced leave returning in October 2018. An incident occurred at Teralba Fire Station on 10 October 2018, which led to an allegation that the appellant had attended the station on that day affected by alcohol.
2. According to a file note prepared by Ms McGinley on 15 October 2018, she had a telephone discussion with Mr Lanesbury on 11 October 2018 during which he alleged that the appellant "turned up at the station drunk" the previous day at approximately 10.00pm. According to Mr Lanesbury, the appellant's behaviour earlier on that day "appeared to be erratic". Mr Lanesbury said that he was concerned for his safety and advised that he will not get on the truck with the appellant. Mr Lanesbury confirmed this discussion in a subsequent email.
3. On 12 October 2018, Ms McGinley had telephone discussions with Mr Avery who claimed that the appellant "was talking about weird and strange things and he did not make sense". Mr Avery also raised the issue of the appellant "arriving at the station intoxicated" and an email he had received from Mr O'Brien who claimed that the appellant had announced that "I'm too pissed to drive" and "I've had too many beers to go on the pump".
4. Ms McGinley also had telephone conversations with Inspector Andrew Dunkin and Mr Windeatt about the appellant and incident on 10 October 2018 at Teralba Fire Station.
5. Ms McGinley's file note also contained a record of a telephone conversation that she had with the appellant as follows: 12/10/18 - telephone conversation with Cpt Stuart Walsham. This was a returned call. Cpt Walsham advised that he had only been back for one week and was getting complaints. He advised that he had been off since the Conference. He described the following details in relation to what had occurred on 10 October: • Cpt Walsham advised that he had received a call from an Inspector regarding the BA sets. • Cpt Walsham advised that he had been advised by the Inspector that the appliance had to be taken off line due to the issue with the air sets. • A call came in at approximately 10pm so he walked up to the station to tell the blokes that the pump was off line and that he had been drinking and would not be going on the truck. • It was confirmed with Cpt Walsham that he had attended the workplace under the influence. He was advised that he shouldn't have attended the workplace under the influence of alcohol and that attending the workplace under the influence of alcohol was a breach of the AOD Policy. • Cpt Walsham confirmed that he knew he did something wrong. • Cpt Walsham was asked why he didn't text or call instead of entering the station. He advised he should have. • Cpt Walsham was asked how things are otherwise. He advised that he was ok/good and that he'd been to LA. • Cpt Walsham advised that he feels that everything he does "this bloke" is ready to pounce. When asked who ls ''this bloke"? He advised that it was Dale Lanesbury. • Cpt Walsham stated that he didn't say how much he drank. He said he wasn't stumbling around and was his normal self. • It was observed that Cpt Walsham was trying to minimise the issue regarding his intoxication. • Cpt Walsham was asked "is everything else ok?" He advised "yes". • He advised that he felt he had been harassed, he said knew he had stuffed up. He advised that they couldn't tell that I had a drink and it was only because I told them "I've had a few beers and I'm not getting on the truck".
6. Following the complaint made by Mr Lanesbury about the appellant's attendance at Teralba Fire Station on 10 October 2018, the appellant took special leave while the matter was being investigated. It does not appear that any disciplinary action was taken against the appellant in relation to his attendance at Teralba Fire Station on 10 October 2018 and he returned to full duties on 8 December 2018.

Incidents on 7 January and 16 February 2019

1. Nothing of significance involving the appellant occurred until the incident on 7 January 2019 which led to the allegations against the appellant which are set out at [3] above, and the incident on 16 February 2019 which gave rise to the "new allegation" set out at [5].
2. These allegations were the subject of the investigation by Mr Moroney.

The investigation

1. During his investigation, Mr Moroney interviewed Mr Avery, Mr Lanesbury, Mr Miller, Mr Doolan and Mr Goodbun. Each of these interviewees also provided Mr Moroney with a signed written statement. Mr Moroney also interviewed the appellant as well as Mr Dunkin and Mr Windeatt.
2. Mr Moroney's Investigation Report was completed on 10 May 2019.
3. With respect to Allegation 1, Mr Moroney made the following finding: 5.8 On the balance of probabilities, there is insufficient evidence to support allegation 1 in the detail of Captain Walsham 'slamming' the exit checklist in front of Deputy Captain Avery.
4. With respect to Allegation 2, the Investigation Report contained the following: 5.11. At this stage, it is the common evidence of Deputy Captain Avery and RFF Lanesbury that Captain Walsham then pointed to RFF Lanesbury and referred to him as a "cockhead". In particular, RFF Lanesbury stated Captain Walsham said, "What about this cockhead here?". Deputy Captain Avery stated Captain Walsham said, "Don't become a cock head like this bloke". 5.12. According to the evidence of Captain Walsham, he said to RFF Lanesbury, "You're a cockhead, mate. Explain to me how you determined I was heavily intoxicated on that night, seeing me for 30 seconds". According to Captain Walsham, he said this after noticing RFF Lanesbury's apparently smirking expression. 5.13. On the balance of probabilities, there is sufficient evidence to support Allegation 2, that is, Captain Walsham saying words to the effect of "don't become a cockhead like this bloke". 5.14. It is appropriate to note that Captain Walsham puts forward some provocation from RFF Lanesbury. Captain Walsham states in his evidence that RFF Lanesbury gave a smirking expression when Captain Walsham was taking to Deputy Captain Avery. This is not stated by the other persons present. 5.15. Further, RFF Lanesbury admitted to calling Captain Walsham a "dickhead" in response to Captain Walsham's behaviour. It is appreciated that at the requisite time, the situation was tense; however, RFF Lanesbury needs to be reminded that if he has an issue concerning a colleagues behaviour, particular if that colleague is a Captain, then comments like the one that he has admitted to are not appropriate.
5. With respect to Allegation 3, Mr Moroney stated in his report: 5.23. With respect to Allegation 3 that states, the words, "a prick that sends emails to Newcastle about him being intoxicated at the station" come from the email sent by RFF Miller to Ms McGinley at 10:45 pm on 7 January 2019. 5.24. It is noted that these words changed in the subsequent statement of RFF Miller in that the reference to being intoxicated was not included, but there was an adoption of his email as a contemporaneous note. 5.25. While it can be seen from the other evidence that Captain Walsham was using derogatory language towards RFF Lanesbury at the time, there is no witness evidence, other than that of RFF Miller, that Captain Walsham used the expression of "a prick that sends emails to Newcastle about him being intoxicated at the station" or words similar to this. 5.26. Accordingly, there are two divergent views on the statement being made, and it is the evidence of Captain Walsham to be compared to the evidence of RFF Miller. 5.27. The allegation relates to an incident that occurred on the evening of 7 January 2019. When assessing the validity of the evidence of Captain Walsham compared to that of RFF Miller concerning this allegation, it is reasonable to also take into consideration the overall assessment of Captain Walsham and RFF Miller's evidence concerning all allegations when determining the validity of their evidence. 5.28. It is noted that RFF Miller made a contemporaneous note by way of an email to Ms McGinley about the incident, and this note was created approximately some 3 hours after the incident. The email makes reference to Captain Walsham saying to RFF Lanesbury "…a prick that sends emails to Newcastle about him being intoxicated at the station". RFF Miller adopts this email to his statement as a true and accurate version of events. 5.29. The noted difference with RFF Miller's statement and this contemporaneous email is the omission of the word 'intoxicated'. 5.30. Captain Walsham's evidence was based on memory, some two months later. 5.31. Further, there is consistency throughout RFF Miller's evidence for this investigation that is often supported by other witnesses as can be identified in the other allegations. While this is not directly related to this allegation, when considered in a wholistic view, it is supporting that the version of events as provided by RFF Miller should be accepted over that of Captain Walsham. 5.32. Therefore, on the balance of probabilities, there is sufficient evidence to support Allegation 3 that Captain Walsham said the comment regarding RFF Lanesbury "a prick that sends emails to Newcastle about him being intoxicated at the station".
6. In relation to Allegation 4, the Investigation Report contained the following: 5.34. Following the altercation at the table, it is common evidence that Deputy Captain Avery suggested to Captain Walsham that he should go outside to calm down. It is also common evidence that Captain Walsham agreed and made progress towards leaving the room to go outside. 5.35. As Captain Walsham was making his way outside, Deputy Captain Goodbun arrived at the station and met Captain Walsham on his way out of the station. According to Deputy Captain Avery, Deputy Captain Goodbun and Captain Walsham, Captain Walsham then approached Deputy Captain Goodbun to complete the same checklist for Mr Wright that he had previously asked Deputy Captain Avery to do. 5.36. According to the three men, Deputy Captain Goodbun refused. 5.36.1. According to Deputy Captain Goodbun, he said to Captain Walsham "Good luck with that". 5.36.2. According to Captain Walsham, Deputy Captain Goodbun said "Good luck with that". 5.36.3. According to Deputy Captain Avery, Deputy Captain Goodbun said: "You have had 12 months to do this". 5.37. According to the evidence of Deputy Captain Avery and Deputy Captain Goodbun, Captain Walsham then yelled at Deputy Captain Avery and Deputy Captain Goodbun telling them to do what they were told. …………………………. 5.42. Although admitting to calling RFF Lanesbury a "cockhead" and saying the men were "the three most hated people in Newcastle", Captain Walsham denies saying any phrases about "fuckwits and a bunch of cunts" and "you have fucked the station" stating that he does not use that language. 5.43. In terms of the allegation, there is significant evidence from persons present to show, on the balance of probabilities, that Captain Walsham said words substantially the same as all those referred to in the allegation. 5.44. The fact that Captain Walsham admitted to using the word "cockhead" also indicates that, while maybe not ordinarily prone to such expression, Captain Walsham was already in an emotional state that led him to use profane language that night. 5.45. On the balance of probabilities, there is sufficient evidence to support Allegation 4. 5.46. It is significant to note that this behaviour came in the context of earlier altercations with Deputy Captain Avery and Deputy Captain Goodbun where both men had refused to follow a management direction of Captain Walsham. In the discourse of those earlier conversations, Deputy Captain Goodbun, admits to making a comment "Good Luck with that" which may have caused some heightened provocation of Captain Walsham.
7. With respect to Allegation 5a, Mr Moroney found that the allegation was not sustained. However, in relation to Allegation 5b, Mr Moroney found that the allegation was sustained in that the appellant disobeyed a lawful order to the effect that he not approach or contact any potential witness in the matter.

The disciplinary process

1. Following the promulgation of Mr Moroney's Investigation Report, a disciplinary process was implemented by Mr Hamilton.
2. Ultimately, Mr Hamilton adopted the findings in the Investigation Report in relation to each of the allegations against the appellant and decided that the appellant should be demoted from the rank of Captain to Retained Firefighter.
3. It is from that decision that that the appellant has appealed to this Commission.

Justin Avery

1. Justin Avery has been employed as a Retained Firefighter for approximately 18 years. He has held the rank of Deputy Captain at Teralba Fire Station for a number of years.
2. Mr Avery gave evidence that, at approximately 6.15pm on Monday, 7 January 2019, he arrived at the station to attend a fire drill. Retained Firefighters Daniel Miller and Dale Lanesbury were already present and seated at the table in the mess room. After about five minutes the appellant arrived at the station and entered the mess room. He immediately came up to Mr Avery and slammed a piece of paper on the table. According to Mr Avery the following exchange occurred: Walsham: You need to sort this. Avery: Who is it for? Walsham: Murray.
3. The appellant was referring to Murray Wright, a former Retained Firefighter stationed at Teralba Fire Station whose employment had been terminated by FRNSW approximately 12 months previously. The piece of paper was a checklist relating to Mr Wright's exit from FRNSW that needed to be completed. According to Mr Avery, he had discussed previously on a number of occasions with the appellant why he was not prepared to be involved in Mr Wright's checklist and why it was not appropriate for the appellant insist that he complete it. The exchange continued: Avery: You are starting to harass me about this, and your tone is becoming aggressive. Walsham (pointing to Lanesbury): Don't become a cockhead like this bloke. Walsham (to Lanesbury): You are a liar. Lanesbury: Are you pissed now, mate? You're acting like it.
4. According to Mr Avery, the appellant was clearly getting worked up, his face was red, he was waving his hand and pointing and his voice was "really loud". Mr Avery attempted to calm things down and defuse the situation in the following exchange: Avery: Let's go outside so you can calm down. Walsham (in a very aggressive voice): Yeah, I will take it outside.
5. As the two men then walked towards the front door of the station, Mr Goodbun entered through the front door. The following exchange occurred: Walsham (in a very aggressive manner): You need to sort this checklist out for Murray. Goodbun: I will not be doing that, and you know the reason why. You have had twelve months to do this.
6. According to Mr Avery, the appellant then pointed to the station whiteboard and the agreement reached at the station conference conducted by Professional Standards in June 2018. The exchange continued: Walsham: The agreement means nothing. It is worthless. It is not worth a piece of shit… (to Goodbun, Lanesbury, Miller and Avery) You are all fuckwits and a bunch of cunts. You are the three most hated people in Newcastle. You have fucked the station and Lanesbury is a cockhead and a liar. Avery: Are you including me in that? Walsham: Yeah. Avery: You can't talk like this to the members.
7. Mr Avery gave evidence that, by this stage, he was feeling distressed, intimidated and insulted and decided to leave the station immediately.
8. Mr Avery's witness statement concluded as follows: 17. The purpose of participating in the June 2018 Conference was to reach agreement on a way forward to enable us all to work together at 458 Teralba station and to avoid the disputes that had plagued us for a number of years. By his behaviour on 7 January 2019 and by his comments about the conference agreement Capt Walsham made it clear to me that he had no intention of trying to make things work better. His behaviour is not what I would expect from the senior officer in the station and his comments showed a complete lack of respect for DC Goodbun, RFF Lanesbury, RRFF Miller and me. 18. Given Capt Walsham's comments about me and his behaviour I cannot see how the relationship can possibly be rebuilt. If he is reinstated as Captain at Teralba 458 Station I believe I will have no option other than to resign.

Nathan Goodbun

1. Nathan Goodbun has been employed as a Retained Firefighter since 1992. He has held the position of Deputy Captain at Teralba Fire Station since 2007 and union delegate for almost ten years.
2. According to Mr Goodbun, as he entered the station at approximately 6.25pm on 7 January 2019, the following exchange occurred: Walsham: There's a form on the desk, get Murray's keys. Goodbun: Good luck with that.
3. Mr Goodbun understood that the appellant was referring to Murray Wright. Mr Goodbun had represented Mr Wright as his union delegate and claimed that he was not comfortable to speak to Mr Wright about the keys. Mr Goodbun claimed that he had spoken with Mr Windeatt and Fire Brigade Employees Union ("FBEU") country organiser Greg Matthews and it was agreed that he would not collect the keys. According to Mr Goodbun, the exchange continued: Walsham (yelling at Avery and Goodbun): You will do as you are told. Goodbun: I will not do anything when spoken to in that manner. Walsham: You are a bunch of cunts. You have fucked up the station and you are the three most hated people in Newcastle. Avery: That is totally inappropriate. Goodbun: You have failed to take action concerning the station keys for the past twelve months or so, and your failure is not my or DC Avery's problem. Walsham (to Lanesbury): You are a fucking cockhead and a liar, and you made up stories about me being drunk at 458 station. Lanesbury: Are you drunk now? Avery: We will have a management meeting after the drill as agreed. What about the behaviours we had agreed on at the station conference? Walsham: The agreements mean nothing. It is worthless.
4. After about five minutes of this behaviour, Mr Avery said he was leaving. Mr Goodbun said to all present that he was going to call the Duty Inspector to attend the station. He then left the station and called Inspector Mark Cavanough. Mr Goodbun then sent an email to Mr Cavanough in which he set out his version of the events which had occurred earlier that evening.
5. Mr Goodbun's witness statement concluded as follows: 16. Capt Walsham's aggressive and intimidating behaviour was totally inappropriate especially given that he was supposed to be the leader of the station and setting the example for everyone else. I am not prepared to serve under Stuart Walsham should he be reinstated as Captain at 458 Teralba. 17. Because of a combination of his behaviour towards me and others in the station on 7 January 2019 together with his pattern of behaviour in the preceding couple of years I will struggle even to work alongside Stuart Walsham when he returns as a Retained Firefighter. I will not feel safe with him around. 18. What occurred on 7 January 2019 was really a culmination of the bad behaviour Capt Walsham had demonstrated towards Fire & Rescue personnel at 458 Teralba over a number of years. We have put up with it for too long. We attended a Conference organised by Professional Standards in mid-2018 which was designed to allow us all to voice our concerns and come to an agreement about how the station would be managed. Stuart attended the conference but by his attitude during it he showed that he had little interest in resolving the issues. Soon after the conference Stuart went on leave and had only just returned to duties when the incident occurred on 7 January 2019. By his behaviour he demonstrated his unsuitability to continue as Captain of the station.
6. In his second witness statement, Mr Goodbun gave evidence about the "abundance of training for Captains over the years that Mr Walsham and I have worked together at 458 Teralba Station".
7. Mr Goodbun also gave evidence of his perception of the appellant's shortcomings as Captain of Teralba Fire Station.

Dale Lanesbury

1. Mr Lanesbury has been employed by FRNSW as a Retained Firefighter for the past four years (approximately).
2. In October 2018, Mr Lanesbury lodged a complaint with Professional Standards after the appellant came to Teralba Fire Station "clearly under the influence of alcohol".
3. On Monday, 7 January 2019, Mr Lanesbury attended the station for the purpose of the station drill. He observed the appellant to place a piece of paper on the table in front of Mr Avery. The following exchanges then occurred: Walsham: There is that form, you need to collect gear I've been asking about. Avery: What gear? Walsham: For Murray Wright. Avery: We have been over this issue and I will not be collecting the gear. Murray has requested that you contact him direct. I feel as though you are harassing me about this and we have addressed the issue on numerous occasions. Walsham (becoming more aggressive in his tone): I'm harassing you? You've been told to do it, this is a joke... (pointing at Lanesbury in an intimidating manner) What about this cockhead here? Avery: You can't talk to people like that, calm down. Walsham (to Lanesbury): You are a cockhead and a liar and you make up shit about me being pissed at work. Lanesbury: Listen to how you're carrying on, are you pissed now? Have a listen to yourself, you're carrying on like a real dickhead, Avery (to Walsham): You should go home and cool off.
4. Mr Lanesbury then observed the appellant and Mr Avery walk towards the front door of the station when Mr Goodbun entered the station. After the appellant spoke to Mr Goodbun "in the same loud, aggressive tone", the exchanges continued: Walsham: You are a bunch of cunts… You have fucked the fire station and you are a bunch of fuckwits… (pointing at Lanesbury) Especially this cockhead here. You are the three most hated people in Newcastle. Everyone in town hates your guts. Avery: I am leaving and you (looking at Lanesbury) should get changed and also leave.
5. The following day, Mr Lanesbury sent an email to Acting Duty Commander Bruce Dowling and Superintendent Greg Windeatt recounting what had occurred at Teralba Fire Station the previous evening.
6. Mr Lanesbury's witness statement concluded as follows: 17. Not only was Capt Walsham abusive and insulting towards my colleagues and me, but he was also retaliating against me for lodging a complaint about him. To me this last bit is particularly intimidating. 18. I have great concern about the possibility of working with (now) RFF Walsham in the future. I do not believe I could ever serve under him as my Captain as a result of his behaviour and in particular retaliating because of my complaint in such an intimidating fashion.

Daniel Miller

1. Daniel Miller has been employed by FRNSW as a Retained Firefighter for six years. For the last three years he has worked at Teralba Fire Station.
2. On Monday, 7 January 2019 at approximately 6.15pm Mr Miller attended Teralba Fire Station for a station drill. He was sitting at a table in the mess room with Mr Avery and Mr Lanesbury when the appellant entered through the front door. Mr Miller claims that he said "Hello" to the appellant but that was ignored.
3. According to Mr Miller, the appellant walked up to Mr Avery and dropped a piece of paper in front of him. The following exchange then occurred: Walsham: You need to get these keys. Avery: I will not chase the keys up as this is your job being the boss. I am starting to feel like you're harassing me about this. Walsham (with a raised voice pointing at Lanesbury): He is a liar and a prick that sends emails to Newcastle.
4. Mr Miller understood this to be a reference to an incident in about October 2018 after which Mr Lanesbury lodged a complaint about the appellant attending the station in an apparently intoxicated state. According to Mr Miller, the exchange continued: Lanesbury: Are you pissed now, the way your behaviour is? Walsham: You are a pack of cunts. Avery: Hang on Stuart you cannot speak to these guys like that, let's go outside to cool down. Walsham: You're all a pack of cunts and he (RFF Lanesbury) is a liar. Avery: I cannot stay here Stuart, I'm going.
5. Later that evening, Mr Miller sent an email to Ms McGinley of Professional Standards. In his email, Mr Miller recounted his version of the events of earlier that evening and concluded as follows: There are some very big issues at our station that need addressing which I feel the brigade do not do enough.
6. Mr Miller also gave evidence that on Saturday 16 February 2019 at approximately 5.30pm he attended the Teralba Bottle Shop where he encountered the appellant. After a brief conversation, the following exchange occurred: Walsham: Have you been contacted by Professional Standards regarding what happened at the station on 7 January? Miller: I have been contacted by a Mr Winters. Walsham: I have had to hand in my station key and I am not allowed to be on Fire & Rescue NSW premises. The complaint against is all lies. I did call Lanesbury a cockhead but I don't swear… You are the only person who can help get me out of this mess, just tell the truth. I am relying on your statement.
7. Mr Miller gave evidence that the appellant does not normally swear but "he certainly did on 7 January 2019".

James Doolan

1. James Doolan has been employed by FRNSW as a Retained Firefighter for approximately six years at Teralba Fire Station. His version of the exchanges that occurred at the station on the evening of 7 January 2019 is as follows: Walsham: I told you to get it, why haven't you? Avery: I told you before that I'm not going to get it and why. Goodbun: We've explained to you we won't be getting the key. You've had twelve months, why haven't you got it? Avery: Look Stuart this is harassment, do I need to call the Inspector? Walsham: Email the fucking Inspector, yus are a bunch of cunts, especially that one who said I was drunk. Lanesbury: Are you drunk now? Because you are acting like it. Walsham: You're a fucking dog cunt. Yus've fucked the station. The three most hated people in the Brigade and they're in the room. Avery: I suppose I am one of them? Walsham: Yes you are. Avery: I can't take this anymore. I am going home. Goodbun: I'm going too, I'll call the Inspector from home.
2. Mr Doolan was not required for cross-examination.

Jan McGinley

1. Ms McGinley, as a Professional Standards Adviser with FRNSW, managed the Facilitated Conference at Teralba Fire Station on 19 June 2018. Her file note of that conference is reproduced at [17] above. Ms McGinley stated that all Teralba crew members positively participated in developing and signing the agreement which is reproduced in her file note.
2. Ms McGinley gave evidence about her knowledge of the incident on 10 October 2018 involving the appellant's attendance at Teralba Fire Station allegedly affected by alcohol and Mr Lanesbury's subsequent complaint to Professional Standards that the appellant was speaking to members of the community and advising them that he was suspended because of Mr Lanesbury's previous complaint about the 10 October incident.
3. Ms McGinley also expressed her view that the appellant had been provided with appropriate support from Professional Standards and Zone Management as had the other crew members of Teralba Fire Station.

Ruth Barlow

1. Ms Barlow has been employed by FRNSW as the Manager Conduct and Complaints, Professional Standards, since 11 September 2018. In late November 2019 she was appointed (temporarily) to the role of A/Director Professional Standards.
2. Ms Barlow gave evidence about the development of the Fire Brigade Regulation 2014 and the Procedural Guidelines for the Management of Conduct
3. Ms Barlow was satisfied that the process of dealing with the allegations against the appellant (at [3] and [5] above), from receipt of the allegations up to and including the final decision by Mr Hamilton afforded the appellant procedural fairness.

Gregory Windeatt

1. Mr Windeatt holds the rank of Superintendent and is the Zone Commander Metropolitan North 1, FRNSW. He gave evidence of his awareness of issues involving Retained Firefighters at Teralba Fire Station and the efforts he made to address those issues.
2. Mr Windeatt's witness statement contained the following: 2. I have been employed by Fire & Rescue NSW (FRNSW) and its prior entities for 39 years. I have been the Zone commander for Metropolitan North 1 since March 2017. 3. When I became aware of issues involving Retained Firefighters at 458 Teralba Station, I made efforts to address these issues. 4. Initially I only had complaints from Captain Stuart Walsham, however I subsequently became aware of complaints about Stuart from Deputy Captains and Retained Firefighters at 458 Teralba. 5. In consultation with Andrew Dunkin and Professional Standards it was agreed that efforts be made to address the issues at 458 Teralba. 6. In March 2018 I attended a meeting which included Stuart Walsham, Nathan Goodbun, Justin Avery and Andrew Dunkin at which we attempted to address the issues associated with the station. It was apparent that there were some, not serious issues, which were the cause of friction. I hoped that, at the end of the meeting, we had resolved the issues. 7. Unfortunately Stuart continued to complain about matters that I believed had been resolved at the meeting. 8. After the involvement of the Professional Standards Branch a conference was arranged to be held at MN 1 Zone Office on 19 June 2019. 9. The conference was attended by all but one of the retained staff from 458 Teralba Station, representatives from Professional Standards, Area Commander Brett Davies and myself. 10. Following the conference, at which every participant was given the opportunity to provide input, an agreement was reached about the way to go forward to ensure that the station operated in an appropriate fashion. Every person from 458 Teralba present, including Stuart Walsham, signed the agreement. My observation of Stuart and his body language, during the conference, was that he was not really engaged in the process. 11. I have seen the statement provided by Stuart Walsham in respect of his Public Sector Disciplinary Appeal and in particular his suggestion that he was not given support by Zone Management. In respect to my time as Zone Commander I completely reject his allegation and say that an inordinate amount of time was spent supporting Stuart and trying to address his issues. 12. From my observations of Stuart he adopted a "command and control" style of management which is perfectly appropriate for the fire ground, but in a station environment where there are no time pressures a more consultative and flexible approach is required.

James Hamilton

1. Mr Hamilton is the Deputy Commissioner Strategic Capability with FRNSW. He was the ultimate decision maker in the process which resulted in the demotion of the appellant from the rank of Captain to Retained Firefighter.
2. Mr Hamilton gave the following evidence: 2. I have been employed by Fire & Rescue NSW (FRNSW) and its prior entities for 39 years and have been a Deputy Commissioner since 2016. 3. In 2019 Fire & Rescue NSW Commissioner Paul Baxter delegated to me the authority to deal with allegations of misconduct levelled at Captain Stuart Walsham of 458 Teralba Fire Station. 4. On 27 August 2019 after thoroughly reviewing the Investigation Report and associated documentation relating to the allegations against Captain Walsham, I determined that four of the six allegations had been sustained. 5. I further determined that the sustained allegations met the threshold for misconduct under Part 4 - Misconduct Clause 33 of the Fire Brigades Regulation 2014 and that the matter was to be dealt with by way of disciplinary action. 6. I determined that the maximum penalty I was considering was permanent demotion from the rank of Captain to Retained Firefighter subject to any submission from Mr Walsham… 7. By letter dated 13 September 2019 Mr Walsham was advised of my preliminary determination and invited to provide written submissions and, if he so chose, to attend a face to face meeting with me… 8. Mr Walsham provided a written response… Additionally, he provided a number of character references. Mr Walsham also attended a face to face meeting with me on 6 November 2019 which was also attended by Ms Ruth Barlow, Acting Director Professional Standards and Ms Colleen Cotto from the FBEU. At the meeting Mr Walsham made further submissions and Ms Barlow took comprehensive notes. 9. In arriving at my final determination to impose a permanent demotion to Retained Firefighter I took into account the investigation report and associated documentation, Mr Walsham's written and oral submissions and his supporting references... I0. In particular I noted that there had been tensions at the station, however I was satisfied that FRNSW local management had taken many hands on measures to address this, including station mediation and working closely with Captain Walsham on acceptable methods to work with Station personnel. 11. I understand that Mr Walsham alleges that he was provided with no management training. It is my understanding that all Captains in the Metro North Zone (which includes 458 Teralba Station) were offered management training at the Australian Institute of Management in 2015 and 2016 however Mr Walsham declined to participate for reasons never explained to me. 12. In arriving at my determination, I took into account the history of tensions at the Station and this was a significant reason why I did not proceed to termination of employment but rather demotion. 13. At the face to face meeting on 6 November 2019 Mr Walsham expressed his sincere apologies for his actions, however in his submissions to me he gave no indication of his willingness to fully take ownership of his actions and he was not able to convince me that he could lead the station in the manner expected by FRNSW. 14. I also note that during this meeting Mr Walsham offered the view in relation to potential disciplinary outcomes: "I would have sacked me" (referring to himself). This is reflected in the handwritten notes of Ms Barlow… 15. Taking into account all of the information available to me, including the submissions by Mr Walsham, I confirm my decision to permanently demote Captain Walsham to the rank of retained firefighter. This decision was communicated to Mr Walsham by letter dated 2 December 2019...
3. In addition to its evidentiary case, FRNSW placed before the Commission comprehensive written and oral submissions in opposition to the Appeal.

Case for the appellant

1. In response to the allegations against him which were found to be sustained, the appellant gave the following evidence: Allegations of misconduct 27. l do not dispute the findings of Fire & Rescue NSW's misconduct investigation. 28. I fully participated in the investigation that was commissioned by Fire & Rescue NSW. 29. I regretfully admit that I made a number of mistakes on 7 January 2019, which is the date of the events that led to the investigation and my subsequent demotion. 30. As described in more detail below, for five years leading up to the incident, I had been dealing with outright insubordination and continual disrespect from my two Deputy Captains, Nathan Goodbun and Justin Avery. 31. There is a well-documented history of blatant insubordination by the Deputy Captains, and defiant behaviour towards me that Fire and Rescue NSW knew about yet failed to assist me with alleviating. 32. My treatment at the hands of the two Deputy Captains during the past six years is relevant because it gives context to why I snapped and behaved the way I did on 7 January 2019. 33. On the day of the incident, I arrived at the station to conduct a training drill. 34. Prior to the training starting, I asked Deputy Captain Avery to finalise the exit checklist for a former employee, something I had asked Deputy Captain Avery to do on numerous other occasions during the preceding nine months. 35. This type of insubordinate behaviour from Deputy Captain Avery (and Deputy Captain Goodbun) was common over the preceding five years. This time, however, I had reached a point where I could not take the undermining and disrespect anymore. I snapped and started yelling at the Deputy Captains and another member of the crew. 36. I know that I should not have acted like that, so I removed myself from that situation, and called Inspector Mark Cavanough and then Superintendent Windeatt, to inform them of what had occurred. I then went home and wrote an email to both of them confirming the details of what had happened. 37. I am aware now, that following the incident on 7 January 2019, the Deputy Captains and RFF Lanesbury contacted the Zone Management Team to notify them about what occurred. From there, the Zone Management Team referred it to professional standards, who then referred it to an external investigator. 38. A few days after the incident, I was informed by letter that my conduct at the drill was being investigated by professional standards, and that I would be suspended for the duration of the investigation. 39. The allegations below were the ones that were found to be sustained by the investigator...: a. Allegation 2: That I pointed at RFF Dale Lanesbury and stated words to the effect of "don't become a cockhead like this bloke" b. Allegation 3: That I pointed at RFF Dale Lanesbury, and called him a liar and words to the effect of "a prick that sends email to Newcastle about him being intoxicated at the station" c. Allegation 4: That I said to all members present words to the effect of i. "You are all fuckwits and a bunch of cunts" ii. "You are the 3 most hated people in Newcastle" iii. "You have fucked the station" iv. "Lanesbury is a cockhead and a liar" d. Allegation 5b: That I approached RFF Daniel Miller, in disregard of correspondence from the Deputy Commissioner, which directed me not to approach or contact any potential witnesses in this matter, and further, that to victimise or harass any employee involved in the investigation of a complaint is a breach of the Preventing and Responding to Bullying and Harassment Policy. 40. My responses to the allegations above are as follows: a. Allegation 2, 3, 4: I acknowledge that my behaviour in how I spoke with my fellow Firefighters was below what was expected of me and I apologise for the outburst. b. Allegation 5b: I do not deny that I encouraged RFF Miller to tell the truth, as was required of him as part of the investigation process. I acknowledge Deputy Commissioner Hamilton's direction not to contact any potential witnesses, and apologise for not following this. I want to make clear that I did not approach RFF Miller, and that this was a chance encounter on the streets of Teralba.
2. With respect to his relationship with those of his colleagues who made allegations against him, the appellant stated: The history of my Relationship with the firefighters who made the allegations 41. ln order to understand why I behaved the way I did on 7 January 2019, it is crucial to detail the history of the relationship breakdown between Deputy Captains Goodbun and Avery and myself, and the bullying and harassment I have endured from them. 42. Deputy Captain Goodbun began working at Teralba in 1992 and became Deputy Captain in 2009. Deputy Captain Avery transferred to Teralba station in 2009 at the Deputy Captain rank. 43. From day one, Deputy Captain Goodbun made it clear that he thought his way of doing things was the best and only way. 44. Any time I gave instructions or lawful directions to him and the crew, he would always question me in front of other crew members and if he did not get the answer he wanted, he would carry on to the other crew members about it. 45. When he did this, he would often try and elicit the support of other crew members but most of them, except for Deputy Captain Avery, would ignore him. 46. By 2014, a lot of the longer-term crew at the station had retired and there was an influx of new recruits at the station. 47. During this time, I observed Deputy Captain Goodbun try to influence the new recruits and turn them against me by continuously attacking and belittling me and openly encouraging the other crew members to undermine me at work. Over time, he began to create a faction of people at the station who agreed with him and created an exclusionary environment among the crew. There are many examples of this but one is that he would organise BBQs and only invite the people he liked and then be sure to loudly talk about these events in front of crew he didn't invite. 48. Deputy Captain Goodbun became even more defiant when I would give lawful directions, especially at incidents. I believe it is because he felt emboldened by having the "support" from various crew members whereas before no one would pay any attention to him. 49. It was also around this time when both Deputy Captains began openly not following Fire & Rescue NSW policies and procedures. For example, Deputy Captain Goodbun continuously refused to wear his uniform as well as Personal Protective Equipment (PPE) at incidents, and both Deputy Captains continuously refused to approve staff timesheets, which meant staff would not get paid for their work. 50. Additionally, Deputy Captain Goodbun would do things to try and undermine my rank as Captain. For example, on a number of occasions he listed himself as the Officer In Charge at incidents where he did not attend on the truck. 51. Anytime either of the Deputy Captains had an issue with how I was doing something I would directly address it and try to come up with different ways based on their feedback. For example, Deputy Captain Goodbun wanted more transparency in the rostering and wanted an online system before he would approve pays. I was fine with this and changed to online. However, even with this new system, he still refused to approve pays as directed. 52. I felt like their concerns were not about the processes for how we managed the station, and instead, this was just another way to try and undermine me and refuse to do their jobs. 53. By early 2015, Inspector Andy Dunkin contacted me to let me know that Deputy Captain Goodbun had been submitting complaints about me. Inspector Dunkin informed me that none of the complaints had any merit and that I was doing a good job. 54. By late August 2015, it was clear that my efforts to get the Deputy Captains to change their behaviour were not sufficient and I knew I needed help from Fire & Rescue NSW to deal with this situation. 55. On 25 August 2015, l emailed Inspector Dunkin outlining my concerns about the poor cooperation from the Deputy Captains and their failure to support management processes. I did not receive assistance relevant to my concerns… 56. On 23 October 2015, I phoned Inspector Dunkin regarding Deputy Captain Goodbun having poor management of the availability roster, and non-compliance with standing orders relating to wearing of uniform. 57. On 27 November 2015, I emailed Inspector Dunkin regarding my Deputy Captains failing to approve tirnesheets as requested. On 3 December, Inspector Dunkin emailed the Deputy Captains directing them to approve timesheets as directed by me. This lawful direction from Inspector Dunkin was consistently ignored, and the Zone Management Team did not follow up to ensure this was occurring… 58. On 27 February 2016, I emailed Inspector Dunkin noting that I was still having issues with the Deputy Captains not following lawful directions to approve timesheets. l did not receive a reply to this email or any assistance… 59. On 8 May 2017, I emailed Superintendent Windeatt regarding my Deputy Captains not completing incident reports, which is required in their role. I did not receive a reply or assistance… 60. On 6 June 2017, I emailed Inspector Dunkin noting that Deputy Captain Goodbun had not signed off on timesheets as he had been continually directed to do by myself and the Inspectors… 61. On 7 December 2017, I emailed Inspector Dunkin and Superintendent Windeatt, noting that the incident reports were still not being completed. This is consistent with my 8 May 2017 email. I did not receive a reply or assistance… 62. l felt like I was genuinely making every effort to accommodate the Deputy Captains but it didn't matter because they just had it in for me. 63. By this point I had reported the Deputy Captains' insubordination to Fire & Rescue NSW many times and not received any help in return. I was also being told that the Deputy Captains and another firefighter at the station were continuing to file complaints to the Zone about me. The Zone never gave any credit to these complaints about me. In fact, I recall Superintendent Windeatt saying words to the following effect: Superintendent Windeatt: Listen Stuart, this is ridiculous, if anyone should be making a complaint it should be you against Deputy Captain Goodbun. 64. In March 2018, after I contacted the Zone office yet again about the same on-going issues with the Deputy Captains, Superintendent Windeatt held a station meeting with Deputy Captains Goodbun and Avery, Inspector Dunkin and me. We discussed numerous issues including distribution of authorised duties, approving of timesheets, performance partnering, workplace behaviour standards, building a unified team environment, audit of PPE shortages, completion of incident reports, and completion of exit checklists. Supt Windeatt told me I was doing a good job and told the Deputy Captains to work with me to support me and the overall management of the station. 65. I was hopeful that this meeting would help things but it did not as the Deputy Captains insubordination continued. 66. By this time, after four years of dealing with the immense stress the Deputy Captains behaviour was causing me, my mental and physical health were severely suffering. I sought medical help and for the first time in my life I was diagnosed with situational anxiety and depression caused by the stress at Teralba Fire Station. 67. My marriage and other family relationships were also suffering as I was consumed with trying to solve the issues at the station and making things harmonious again. 68. On 19 June 2018, Fire & Rescue NSW Professional Standards got involved and held a station conference at the station. 69. Almost every member of the station attended a meeting with Jan McGinley and the Zone Management Team. Those in attendance voiced concerns and at the end we all signed an agreement that included ways in which we agreed to treat each other going forward. 70. By this point, I felt that nothing was going to work to make the situation better. I was exhausted, depressed and felt that Fire & Rescue NSW had completely failed me and the station and that this mediation would just be more of the same. However, I was willing to give it a try. 71. Despite the mediation and our agreement, the Deputy Captains continued to behave as they had been and breached the agreement from the mediation. 72. A few days after the mediation, I ended up in the hospital due to depression and anxiety. I took leave to deal with my health issues. 73. I returned to the station on 1 October 2018. 74. Just over a week later, on 10 October 2018, I was accused of attending the fire station intoxicated. 75. I maintain that I was not intoxicated as I had only had a few beers with my dinner, hours earlier. 76. I attended the station as I had been informed by the Inspector that evening that our Tanker could not be used until a critical safety issue had been addressed. I scheduled a message to go out the following morning advising the crew of this. 77. There was, however, a fire call that night so, considering that I live just 80m from the station, l walked over, popped my head in, and notified the crew of the critical safety issue, and then left. 78. While this complaint was investigated, I was encouraged to go on "special leave", which I complied with. This lasted from October until 8 December 2018. 79. Superintendent Windeatt described my actions at this incident as "innocent in intent". Fire & Rescue NSW ultimately dismissed a complaint that arose out of this situation and I was cleared to return to work. 80. In December 2018, Deputy Captain Nathan Goodbun hosted a station Christmas party at a local club. I was off on special leave and wasn't told. Usually the information for our Christmas event would be posted at the station and a group text message sent to all members. Neither I nor my two sons who work at Teralba Fire Station received notice of the party. 81. The first day I was back from special leave, on 8 December 2018, Deputy Captain Goodbun was injured at an incident. I was informed afterwards by one of the Inspectors, who asked me to handle the injury notification, that Deputy Captain Goodbun had listed Deputy Captain Avery as his supervisor instead of me, which is incorrect. I believe he did this just to upset me. Once again, I was reminded that this behaviour was never going to end. 82. This all led up to the incident on 7 January 2019. 83. On 7 January 2019, I emailed Superintendent Windeatt, and Inspectors Cavanough and Dunkin, noting that I was still not being supported by my Deputy Captains. I did not receive a reply or assistance. I note, however, that there is evidence that Superintendent Windeatt emailed others, including Chief Superintendent Davies, on 9 January 2019, noting that "the 2 Deputy Captains are not supporting the Captain in his role"…
3. The appellant also gave evidence about the impact that the demotion has had on him personally and financially. He also relied upon his previous good record in support of his appeal.

Determination

1. In determining the Appeal, I am only concerned with those allegations against the appellant which were found to be sustained by the decision maker, Mr Hamilton, namely Allegations 2, 3, 4 and 5b, and which formed the basis of Mr Hamilton's decision to demote the appellant from the rank of Captain to Retained Firefighter (see Marroun v State Transit Authority [2017] NSWCA 273 at [62]).
2. I have not had regard to other matters such as the incident of 10 October 2018 where it was alleged that the appellant attended Teralba Fire Station when he was affected by alcohol.
3. This approach appears to be consistent with that adopted by Mr Hamilton in coming to his decision to demote the appellant. So much was confirmed in final addresses by Mr Holland, who appeared for FRNSW in the proceedings, in the following terms: Mr Anwar took some time referring to the incident on 10 October when Mr Walsham was - a complaint was made about Mr Walsham attending the station in an intoxicated state. I only make a couple of brief submissions about that. The first one and probably the most relevant is that that incident did not form any part of the investigation process or, indeed, the decision-making process in this matter. And Commissioner, if you look at the original material filed on behalf of the respondent, the only mention of that is contained in witness statements, and it references why Mr Walsham made the comments that he made to RFF Lanesbury. So far as evidence was subsequently introduced about that incident, it was primarily because of the evidence that Mr Walsham introduced himself. So my submission on that is that that was not a matter that was within the comprehension of Deputy Commissioner Hamilton, and none of the material associated with that incident formed the brief that was presented to Deputy Commissioner Hamilton.
4. With respect to the assertions made by Ms McGinley, Mr Windeatt and Mr Hamilton about the amount of support that had been provided to the appellant in dealing with his two Deputy Captains, Mr Avery and Mr Goodbun, the evidence before the Commission simply does not support these assertions. Whilst I accept that extensive efforts were made by FRNSW management to address the interpersonal conflict which has existed for a number of years at Teralba Fire Station, primarily between the appellant and the two Deputy Captains, Mr Avery and Mr Goodbun, these efforts have largely been ineffectual due to management's failure to effectively address the blatant refusal on the part of both Deputy Captains to comply with lawful and reasonable instructions from their Captain, the appellant.
5. For example, the appellant had, on a number of occasions, raised with management the refusal of the two Deputy Captains to approve payments to Retained Firefighters for fire calls, authorised duties and the like in accordance with the timesheets provided by the crew members.
6. On 12 July 2015, the appellant sent the following email with the subject line "Approving pays" to Mr Goodbun and Mr Avery: Nathen/Justin I have noticed a few authorized duties and calls haven't been approved and other have been, when you are approving pays could you please approve all not only a selected few. If you are unsure if the person or persons have done the authorized duty cross check the occurrence book if you are not completely satisfied with that please contact me. I don't want the situation where one person is getting paid for authorized duties and another isn't, this will just cause unwanted drama at the station, the last thing I want is a divide in the station. If either of you have any questions/or issue please feel free to ask me Regards Stu
7. The request contained in the email set out above was manifestly reasonable and should have been complied with by both Deputy Captains. Two days later, on 14 July 2015, the appellant sent a further email with the subject line "pays" to Mr Avery: Justin The question is starting to get asked why you are only approving some pays and not others pays I have sent you an email asking you to approve all pays when you are on bart, if you are unsure ask or check of the book Can we work on rectifying this problem Stuart
8. The emails from the appellant set out above did not have the desired effect and the matter remained a source of disputation between the appellant and the two Deputy Captains which generated complaints from crew members who were not paid for performing authorised duties in a timely manner.
9. On 27 November 2015, the appellant emailed Mr Dunkin, with the subject line "Bart entry not approved", as follows: Andrew, Further to our conversation could you please look into why my two deputy captains will not approve pays. I.e. fire calls, authorized duties etc. I have ask them on several occasions to approve pays by cross checking the book even to ring the person's in questions or lf they can see the jobs been done approve the entry or they do not approve anything and I will approve all the entry's I get told If they are not at the call they will not approve the entry or if they do no authorized the duties they will not approve the entry I know they approved entries for certain members which they have not authorized but they leave other enters not approved The members are getting annoyed about it I am getting emails each pay run asking me why their entries have not been approved when they see others have been approved It's getting to the point a couple of members are going to go to the union for discrimination I have ask countless time for them to do it as I feel it part of their jobs being D/Captains I know the new system is coming in and will fix this problem but how many more pay days is there before the new system is in This has been going on for about 6 months and it's getting worse I do not accept my D/Captain reason for not approving pays Regards Stuart
10. On 3 December 2015, Mr Dunkin sent the following email with the subject line "Approving BART entries - 458 Stn teralba" to Mr Avery and Mr Goodbun: Hi Justin & Nathan, Capt Stuart Walsham has raised concerns that you are not approving 458 Stn staff's BART entries for incidents you did not attend or authorised duties you did not organise. I have spoken to Greg Mathews of FBEU about this and agree with his view that as long as the eOB matches the BART entries, you as Deputy Captains should approve the BART entries to ensure staff are paid in a timely fashion. Of course if you have other information that the BART or eOB entries are not accurate, you should not approve the BART entries. Regards Andrew
11. Despite this clear directive from Mr Dunkin, both Mr Goodbun and Mr Avery continued to resist approving payment for any duty that they did not personally organise or for any incident they did not attend, and this remained an unresolved issue up until the time of the Facilitated Conference held on 19 June 2018 and thereafter. It appears that FRNSW took no action against either Mr Avery or Mr Goodbun over their continued refusal to comply with the appellant's directives, and those of senior management, on this issue.
12. Another example of open defiance of the appellant by Mr Goodbun and Mr Avery concerned their refusal to retrieve station keys from, and to complete an exit checklist for, Murray Wright, a former Retained Firefighter at Teralba Fire Station who had been dismissed by FRNSW.
13. On 10 November 2017, the appellant sent the following email to Mr Goodbun with the subject line "Murray exit check list": Nathan Can you do Murry exit check list and get his keys and pager back. Can you get it done by 17/11/17. Email it to me when you get it and I will forward it on Thanks Stuart
14. It is not clear on the evidence before me that Mr Goodbun ever replied to this email. It is, however, clear that he did not comply with the request contained within it.
15. Mr Goodbun was cross-examined about this matter as follows: Q. Mr Goodbarn, on 7 January 2019 Captain Walsham asked you to complete an exit checklist for Murray Wright and get his keys, didn't he? A. Yes. Q. You refused to do that? A. No, I'd already..(not transcribable)..the reasons that I wasn't able to do that. Q. Sorry, I think you broke up in the middle. Can you repeat your answer please. A. Sorry, at the time, yes I did refuse, on the basis of the way I was spoken to. Q. Captain Walsham has been asking you to do Murray Wright's exit checklist since around September 2017, hasn't he? A. No. ………………………… Q. Mr Goodbarn, Captain Walsham has been asking you to do Murray Wright's exit checklist since December 2017, hasn't he? A. No. Q. Do you accept that he has previously asked you to do the exit checklist for Murray Wright? A. The events of 7 January were the first conversation that I have ever had with Mr Walsham about the matter. ……………………….. Q. You say you had discussed the issue of Murray Wright's exit checklist with Superintendent Windeatt? A. Yes, that's correct. Q. It was agreed that you would not collect the keys? A. That's correct. Q. Can I suggest to you the reason why you had that conversation is because Captain Walsham asked you to do the exit checklist? A. No, you'd be incorrect. I was advised by Deputy Captain Avery that he had been asked to do so. Q. Your evidence is Superintendent Windeatt told you that you didn't need to do the checklist. Is that correct? A. That's correct. ……………………….. Q. You never told Captain Walsham that you had been authorised not to do the exit checklist, did you? A. No. As I said, I'd never had a conversation with Mr Walsham on the matter, prior to 7 January. ………………………. Q. Mr Goodbarn, during the break Mr Holland sent you a number of documents. A. Yes. Q. There's a one-page email dated 10 November 2017. Do you have that? A. Yes, I do. ……………………… Q. So this is an email Mr Walsham sent to you on 10 November 2017, Mr Goodbarn. A. Yes. Q. You (sic) write, "Nathan, can you do Murray's exit checklist and get his keys and pager back?" Do you see that? A. Yes. Q. You haven't complied with that, have you? A. I don't recall reading this email.
16. Having observed the demeanour of Mr Goodbun whilst he gave this evidence I have formed the opinion that he was not telling the truth. There is written evidence before the Commission that he was asked by the appellant to complete the exit checklist for Mr Wright and to retrieve his keys and pager as far back as 10 November 2017. I do not accept that Mr Goodbun would subsequently claim that he approached Mr Windeatt for approval to refuse to complete the checklist and retrieve Mr Wright's keys and pager unless he had been asked to perform these tasks by the appellant.
17. On 7 December 2017, the appellant sent the following email with the subject line "Murray Wright exit check list" to Leading Station Officer Christopher Forster and copied in Mr Dunkin and Mr Windeatt: Christopher Spoke to D/C Avery tonight after a call about 20:50hrs Ask him if he could get Murray Wright keys and do the exit check list of him. Straight up he got defensive saying no you get them I don't believe in his sacking I told him it was because of his attendance and I said did you know how it worked. He replied no I and I don't want to know. I started to explain it to him and he said NO I don't want to know I don't believe in his sacking. I told him you have to know how the attendance work. His replied no I don't. he brought up about a person how he was off for about 7 months over sea which he had taken A/L for most of the time and nothing happen to him and then he worked out. That person Justin was referring to has in the past expressed his dislike for me. Regards Stuart
18. It is not disputed that, like Mr Goodbun, Mr Avery refused to comply with the appellant's request to complete the exit checklist for Mr Wright right up until it was again raised with both men by the appellant on the evening of 7 January 2019 at Teralba Fire Station.
19. Mr Avery was cross-examined about this issue as follows: Q. When Captain Walsham arrived at the station on 7 January 2019 he ordered you to complete an exit checklist for Murray Wright, didn't he? A. He - yes. Q. You refused to do it. A. No, I said I wasn't comfortable with doing it as previous conversations with Stewart about that topic. He knew my - how I felt about this and yeah. Q. Are you suggesting that you had already have to comply with his orders if you feel like that's something - I withdraw that. Can I suggest to you did not have legitimate reason for refusing to comply with that order? A. No, I - as you're aware I - I supported Murray in his unfair dismissal claim and I did not feel comfortable in collecting his ESGs and doing the station checklist with Murray. As - as explained to Stewart - Q. Captain Walsham - A. -numerous times. Q. Captain Walsham has been asking you to do Murray Wright's exit checklist since around December 2017, hasn't he? A. I - I don't know. I can't answer that, sorry. Q. Does an approximate 12-month period sound about right to you? A. Yes, yes, correct. Q. You have continuously refused to comply with that direction, haven't you? A. I - I've told Stewart I felt uncomfortable every time so, yeah.
20. Mr Windeatt was cross-examined about the appellant's email to Mr Forster (at [96]) as follows: Q. It's an email sent by Captain Walsham to Christopher Forster? A. Yes. Q. Copying Andrew Duncan and you? A. Yes. Q. And Captain Walsham writes, starting in the second sentence, "Spoke to DC Avery tonight after a call about 2050 hours, asking if he could get Murray Wright keys and do the exit checklist of him. Straight-up he got defensive, saying, 'No, you get them. I don't believe in a sacking.'" See that? A. Yes, I do. Q. Captain Walsham was informing you that Deputy Captain Avery had refused to comply with his order to do a checklist, wasn't he? A. Yes, he was. Q. And I suggest to you by sending that email he was seeking your help in putting an end to this insubordination by Deputy Captain Avery. A. Yes. Q. But you did not intervene? A. Well, I disagree. That was probably the lead-up to the meeting that we had on 15 March where..(not transcribable)..plus there was obviously a phone call. That would have been trying to clarify the matter, and this was an ongoing conflict that we had - well, an "issue", better word. Q. So is your evidence you told Deputy Captain Avery to obey Captain Walsham's order to complete Murray Wright's checklist? A. I think there - I can't recall exactly what happened, but we tried to resolve the matter at what they call the local level, and then we realised - because this was 7 December. We..(not transcribable)..the Christmas. The office does tend to have that bit of a lull period over Christmas/New Year, and then we came back into the new year. From recollection I went off on leave myself in February and hence why we then had this meeting in March 2018. Q. You've given a very long answer to a simple question, superintendent. I'm going to ask you again. Did you or did you not tell Deputy Captain Avery to obey Captain Walsham's orders to complete Murray Wright's exit checklist? A. We would have sent him communication to do it, yes. Q. So you accept that you did tell him to comply with that order? A. More than likely. I'm trying to recall. You know, we are going back two and a bit years ago, but I think from memory we would have tried to get the matter actioned. Q. What does "matter actioned" mean? Does that mean A. ..(not transcribable)..I'm talking about trying to get the exit checklist completed and the keys returned. Q. Completed by Deputy Captain Avery? A. Yes. Q. You also knew that Captain Walsham had ordered Deputy Captain Goodbarn to do the exit checklist for Murray Wright? A. Yes, I think that would have been the case. Q. You also knew that Deputy Captain Goodbarn had refused to comply with that order? A. Yes. Similar situation. Similar sort of - there was conflict around the whole issue. Q. You accept that Deputy Captain Goodbarn came in and had a conversation with you about whether or not he had to comply with that order to complete the exit checklist? A. I don't recall that conversation. Q. So is your evidence - or do you accept that you told Deputy Captain Goodbarn that he did not have to comply with the order to complete Murray Wright's checklist? A. No, I don't recall ever stating that. Q. So, just so everyone is clear, your evidence is you did not tell Deputy Captain Goodbarn he did not have to complete Murray Wright's checklist? A. I don't recall making that statement to HOLLAND: I object. I object to that question, Commissioner. The evidence was that Superintendent Windeatt doesn't recall stating that. Mr Anwar is now putting words in his mouth to the effect that he didn't state that, and that's not the evidence. COMMISSIONER: It's cross examination, Mr Holland, so Mr Anwar can put words into Mr Windeatt's mouth and he can either accept or reject it. HOLLAND: Yes, if the Commission pleases. COMMISSIONER: Mr Anwar. ANWAR Q. To the best of your recollection did you or did you not tell Deputy Captain Goodbarn that he did not have to do Murray Wright's checklist? A. No, I do not recall stating that to Mr Goodbarn. Q. You admitted a moment ago, didn't you, that you were aware both Deputy Captain Avery and Deputy Captain Goodbarn had refused to comply with the order to do checklists? A. We knew there was problems with it and they cited there was the industrial matters. The union was stepping into it; I think some talk about a station delegate. There was just a lot of conflict around the whole matter and we did our best to try to get the matter actioned, but we knew on this occasion though - and just a reflection again of what I said before - the conflict at that station amongst the station management team, hence why we ended up having this meeting on 15 March 2018.
21. The meeting on 15 March 2018 which was referred to by Mr Windeatt was chaired by him and attended by the appellant, Mr Dunkin, Mr Goodbun and Mr Avery. Included as agenda items for the meeting were "Approving pays in SMART at station level" and "Completing exit checklists". The minutes of the meeting contain the following entry: Captain may delegate tasks required to complete an exit checklist. It is the Captain's responsibility to sign the exit checklist and therefore is ultimately responsible for its completion.
22. However, both Mr Goodbun and Mr Avery continued to defy the appellant's directives with respect to these matters after the meeting of 15 March 2018. Mr Windeatt was cross-examined about this meeting as follows: Q. I'm going to suggest to you a series of propositions that you can either agree or disagree, Superintendent Windeatt. A. Yeah, okay. Q. At the meeting on March 2018 you told the deputy captains to support the captain. Do you accept that? A. Yes, that would have been the theme of that meeting, yes. Q. I'm going to suggest to you even after the meeting they did not do that. A. Well, it would have been over a period of time before we became aware of it. I mean, the meeting sort of ended on reasonably positive outcomes - well, we thought at the time - and we did set down a, you know, time to meet again into the future for a review. Q. I'm going to suggest to you if you or Inspector Duncan had taken steps to make sure the deputy captains complied with Captain Walsham's orders to do the checklist, events would not have escalated to where they escalated to on 7 January 2019. A. No, I disagree with that.
23. The issues of pay approvals and the retrieval of the station keys and completion of the exit checklist for Mr Wright remained as sources of conflict between the appellant and the two Deputy Captains despite the "reasonably positive outcomes" of the meeting of 15 March 2018 and the Facilitated Conference of 19 June 2018. However, there is no evidence before the Commission to demonstrate that FRNSW took any effective action to ensure that Mr Goodbun and Mr Avery complied with the appellant's directives concerning the exit checklist for Mr Wright and his keys and pager. It was the issue involving Mr Wright's exit checklist and keys that sparked the blow up by the appellant on 7 January 2019 which ultimately led to his demotion.
24. I refer to the extract from Mr Goodbun's witness statement set out at [45] above where he responded to the appellant's request to "…get Murray's keys" with "Good luck with that". I find it extraordinary that this type of insubordination towards the station Captain from a Deputy Captain has apparently not drawn any sanction from FRNSW management. As will be seen below, in defending the Appeal, FRNSW appears to condone this type of insubordinate response to the appellant from the Deputy Captains.
25. Further, I reject Mr Goodbun's evidence to the effect that he had been told by Mr Windeatt that he didn't need to do the exit checklist for Mr Wright. Mr Windeatt could not recall saying that to Mr Goodbun (see [99] above). I cannot accept that, if Mr Windeatt had made such a statement to Mr Goodbun, the appellant would not have been informed.
26. I also find it extraordinary that FRNSW would attempt to defend Mr Avery's refusal to comply with the appellant's directive concerning Mr Wright's exit checklist and the station keys on the basis that Mr Avery disagreed with the action taken by FRNSW in relation to Mr Wright.
27. In final addresses, Mr Holland, who appeared for FRNSW, put the following: That leaves us with the situation around the exit checklist and the keys. The reasons that Deputy Captain Avery gave for not doing that, in my submission, were quite reasonable and compelling. He said in his evidence and repeated in cross-examination that Mr Wright was a close ..(fault in audio visual link)..of his that he did not agree with the action that resulted in his termination and that, in fact, he had been one of his support people during the disciplinary process. Mr Walsham's reason for not collecting the keys himself were that on the one occasion when he spoke to Mr Wright, Mr Wright said stop harassing me. Mr Walsham was the senior officer in the station, the officer with ultimate responsibility for ensuring that the exit checklist was completed and the keys returned and yet he was not prepared on the basis of one complaint about harassment to go and get the keys back and complete the exit checklist himself. COMMISSIONER: Just on this issue, Mr Holland, you accept, don't you, that Mr Walsham was also asked to delegate that task to one or other of the two deputy captains. I think there is ample evidence of that. HOLLAND: Yes, Commissioner. COMMISSIONER: Are you saying that Mr Avery's grounds for refusing to do that as he was directed to were reasonable because Mr Avery disagreed with a decision of Fire and Rescue in relation to Mr Wright and it was reasonable for him - that just seems to be a little odd coming from Fire and Rescue that one of its decisions it concedes it was reasonable for a deputy captain to disagree with and use that as a basis for refusing to follow an instruction. HOLLAND: They were the reasons that Mr Avery gave, the parts of the reasons that I submit were reasonable were (1) the fact that Mr Wright was his close personal friend and that is not disputed by Mr Walsham. He makes that statement himself both in his written statement and in his cross-examination. COMMISSIONER: Just on that, let's accept that that is correct, how is being a close personal friend of someone a reason to refuse to ask that person to give you the keys? I would have thought it was a reason why you would be in a good position to do that. Isn't the real reason is because he was apparently sacked and I don't know about the circumstances of Mr Wright. He was apparently sacked by your organisation, Mr Holland, and Mr Avery thought that that was wrong and so he decided to refuse an instruction on the basis of him disagreeing with your organisation's decision in relation to Mr Wright. I just find that odd that you could regard that as reasonable, a reasonable basis for refusal. HOLLAND: Yes, Commissioner, I will move on.
28. My description of FRNSW's support for Mr Avery's refusal to follow the appellant's direction because he, Mr Avery, disagreed with the action taken by FRNSW with respect to his friend, Mr Wright, as being "odd" seems, upon reflection, to be a misdescription. "Perverse" would seem to be a more appropriate description.
29. I find that senior management of FRNSW, in particular Mr Dunkin and Mr Windeatt, failed to adequately support the appellant in dealing with two recalcitrant Deputy Captains over an extended period of time when the appellant's lawful and reasonable directives to both men and, indeed directives of senior management, were blatantly ignored. So much seems to have been accepted, at least to some extent, by Mr Windeatt in the following email sent by him to other FRNSW managers on 9 January 2019, two days after the incident which formed the basis of Allegations 1-4 against the appellant: Hi This is my last email I have received (referring to an email sent by Mr Miller the previous day concerning the incident on 7 January 2019 at Teralba Fire Station), it is fairly clear that the following has happened; - A verbal altercation between Stuart W, Justin A, Nathan G and Dale Lanesbury. - The Captain has used inappropriate language to insult staff. - Dale Lanesbury made a veiled allegation about the Captain being intoxicated - The 2 Deputy Captains are not supporting the Captain in his role. - Morale and team cohesion is very poor Stuart has done the wrong thing, particularly in the context of the talk he had with Tony Kempnich only a month ago. He is the Captain and needs to display the accepted FRNSW values, not use foul language towards his subordinates. However, he is getting frustrated by the conflict with his 2 Deputies and I would assume a resentment towards Dale Lanesbury. I think another teleconference would be wise to discuss the pros/cons. Regards (emphasis added)
30. In a similar vein, Mr Dunkin, on 24 April 2019, sent the following email with the subject line "Stuart Walsham complaining of Avery being uncooperative Murray Wright exit check list" to Paul Winters of National Workplace Investigations: Paul, Murray Wright a firefighter at Teralba wo was terminated due to poor attendance. Stuart claimed to have a lot of trouble getting Nathan Goodbun and Justin Avery to assist him with completing Murray's exit checklist and ensuring FRNSW property was returned, as they did not agree with the termination. This is despite the fact that the decision to terminate had little to do with Stuart Walsham. Regards Andrew
31. The following day, 25 April 2019, Mr Winters created the following file note: Captain Walsham raised a number of issues in relation to complaints to Inspector Dunkin and Superintendent Greg Windeatt Record of conversation with Inspector Andrew Dunkin in relation to context of any complaints raised by Captain Walsham regarding Deputy Captain Avery and Deputy Captain Goodbun • Advised four years of constant complaints and issues from Captain Walsham and from Deputy Captain Avery and also Deputy Captain Goodbun and other members from Teralba station. • Complaint from Captain Walsham of Deputy Captain Goodbun not following directions. • Hundreds of phone calls between various crew members from Teralba including Captain Walsham and from Deputy Captain Avery and Deputy Captain Goodbun and others. Ongoing issues constantly discussing matter with 'straight talk' • Various complaints documented in a table created by Inspector Dunkin from 9 June 2015- 20April 2017. • Had spoken Captain Walsham and both Deputy Captain Avery and Deputy Captain Goodbun in the zone office to address various issues on numerous occasions. • Provided a number of emails that illustrated various complaints in particular two emails from Walsham 7-12-2018 requesting Avery to obtain keys from Wright and refusing to do so and a second email of Goodbun dealing directly with the Zone confirming he could not perform the exit check list for Wright.
32. In the Investigation Report, Mr Moroney noted the following: Context of Incident 5.47. It has been raised in the evidence of Deputy Captain Avery, Deputy Captain Goodbun and Captain Walsham that the incident of 7 January 2019 follows a history of Captain Walsham directing Deputy Captain Avery and/or Deputy Captain Goodbun to go through the exit checklist with former RFF Murray. 5.48. A direction that both men had declined for around the past 12 months. In other words, there had been building frustration over this matter before the events of 7 January 2019. 5.49. It has also been raised in evidence that there was a prior incident in October 2018 whereby RFF Lanesbury made an official report about Captain Walsham being intoxicated upon Fire Brigade premises. The merits of this allegation are not examined in this investigation, but it is noted that the incident had caused some angst between the two men prior to the night of 7 January 2019 and, according to the verbal references made by each, contributed a large part to what was said by each on the night. 5.50. Captain Walsham, in his interview, raised a more detailed history of past management issues he had with Deputy Captain Avery, Deputy Captain Goodbun and RFF Lanesbury. As a result of this information, discussions were held with Superintendent Windeatt and Inspector Duncan that confirmed a history of personality issues and disagreements between Captain Walsham and the Deputy Captains. Various attempts had been made by both Inspectors to mediate the workplace issues that had been raised on both sides. 5.51. Whilst there is support provided by the two Inspectors regarding the on-going and increasing work related friction between Captain Walsham and the Deputy Captains, Captain Walsham by nature of his position, has a responsibility to ensure his behaviour at all times is of an acceptable standard. 5.52. If a Captain is experiencing difficulties with staff, there is a formal process that is required to be followed to assist with addressing the behaviour. Clearly, on the evidence Captain Walsham had attempted to do this on several occasions, and whilst the frustrations he was experiencing no doubt contributed to the incident on the night in question, these circumstances do not mitigate his behaviour as a Captain of a Fire station.
33. I have no doubt that the appellant's conduct on the evening of 7 January 2019 at Teralba Fire Station, which gave rise to Allegations 1-4 and which the appellant admits, constituted misconduct warranting disciplinary action against him. I have formed the same opinion in relation to the appellant's conduct on 16 February 2019 which gave rise to Allegation 5b.
34. However, I also have no doubt that there are significant mitigating circumstances in this matter which, whilst not excusing the appellant, go some way towards giving context to the frustrating circumstances in which he found himself, that had been building up for a number of years due to the failure on the part of FRNSW management to take decisive and effective action to ensure that the two Deputy Captains, Mr Goodbun and Mr Avery, complied with the lawful and reasonable directions of the appellant and displayed towards him the respect to which his rank as Captain was entitled.
35. I find it astonishing that, in opposing the Appeal, FRNSW would attempt to defend the indefensible insubordination of the two Deputy Captains. In this regard, I fully concur with the observations made by Mr Moroney at paragraph 5.46 of the Investigation Report concerning the behaviour of the appellant which formed the basis of Allegation 4 (at [31]), which observations I repeat below: 5.46. It is significant to note that this behaviour came in the context of earlier altercations with Deputy Captain Avery and Deputy Captain Goodbun where both men had refused to follow a management direction of Captain Walsham. In the discourse of those earlier conversations, Deputy Captain Goodbun, admits to making a comment "Good Luck with that" which may have caused some heightened provocation of Captain Walsham.
36. FRNSW relies upon the evidence of Mr Lanesbury in opposing the Appeal. In his witness statement, Mr Lanesbury claimed that, during the exchanges with the appellant on the evening of 7 January 2019, he queried whether the appellant was "pissed" and referred to the appellant "carrying on like a real dickhead" (at [53]). At paragraph 5.15 of the Investigation Report, Mr Moroney refers to this comment by Mr Lanesbury and states that "RFF Lanesbury needs to be reminded that if he has an issue concerning a colleagues behaviour, particular if that colleague is a Captain, then comments like the one that he has admitted to are not appropriate" (at [29]). I agree. However, there is no evidence before the Commission that Mr Lanesbury has been so reminded. Instead, FRNSW, in opposing the Appeal, relies upon the evidence of Mr Lanesbury, including his inappropriate comment and his statement that he does not believe that he could ever serve under the appellant as his Captain.
37. I am satisfied that the appellant has shown genuine remorse for his misconduct on 7 January and 16 February 2019. I am confident that he will not misconduct himself in a similar fashion in the future.
38. Taking into account all of the circumstances of this case, including the appellant's exemplary employment record over the past 40 years, I have formed the opinion that a permanent demotion from Captain to Retained Firefighter is too harsh a penalty for his admitted misconduct and is disproportionate to the level of seriousness of that misconduct.
39. I have decided to allow the appeal and set aside the order of Mr Hamilton of 2 December 2019. The appellant is to be restored to the rank and position of Captain at Teralba Fire Station with effect from 28 days after the date of this decision. In light of the appellant's admitted misconduct on 7 January and 16 February 2019, I decline to make any order with respect to payment to the appellant for the period from 2 December 2019 to 22 March 2021.
40. In coming to this decision, I am mindful of the views expressed by Mr Avery, Mr Goodbun and Mr Lanesbury as to the difficulties they believe they would experience in the future working with the appellant as station Captain (see [43], [48] and [56] above). What each of these men do with respect to his future involvement with FRNSW is entirely a matter for him. Either way, I expect that FRNSW management will, in the future, take much more decisive and effective action than has been taken up until now to ensure that the working relationships between members of the crew at Teralba Fire Station appropriately reflect the rank and seniority of each member and that lawful and reasonable directions of the Captain are not ignored as they have been in the past.

Orders

1. I make the following orders: 1. The Appeal is allowed. 2. The appellant, Stuart Walsham, is to be restored to the rank and position of Captain at Teralba Fire Station. 3. Order (2) is to take effect on and from 22 March 2021. John Murphy Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2021