A v Fire and Rescue NSW [2018] NSWIRComm 1039

A v Fire and Rescue NSW [2018] NSWIRComm 1039

Mr A understood the short, specific allegations against him and had sufficient time to respond, so his procedural fairness complaint failed. The Commission accepted the evidence of Mr H and found it more probable than not that the alleged conversation occurred at the Fire Station on 1 January 2015. The Commissioner was not in error in imposing a disciplinary sanction, but in light of the financial impact of demotion, Mr A's personal circumstances, his work away from the prior Fire Station and LAC, and the protective rather than punitive nature of the jurisdiction, demotion for 12 months was too harsh. The appropriate substituted penalty was a reprimand and a fine of $5200.

Jurisdiction
Australia
Judgment Date
31 May 2018
Procedural Posture
Public Sector Disciplinary Appeal Under Part 7 of the Industrial Relations Act 1996 / Hearing De Novo; Principal Judgment
Outcome
Appeal allowed; demotion decision quashed; reprimand and fine imposed in lieu of demotion.
Legal Topics
['misconduct' 'demotion' 'procedural Fairness' 'protective Disciplinary Jurisdiction' 'reprimand and Fine' 'firefighter Conduct Obligations']
['industrial Relations' 'public Sector Employment' 'disciplinary Appeals'] ['misconduct' 'demotion' 'procedural Fairness' 'protective Disciplinary Jurisdiction' 'reprimand and Fine' 'firefighter Conduct Obligations']

Case Brief

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Procedural Posture

Public Sector Disciplinary Appeal Under Part 7 of the Industrial Relations Act 1996 / Hearing De Novo; Principal Judgment

Legal Issues

  1. 1 ['Whether the disciplinary appeal against demotion from Station Officer to Senior Firefighter should be allowed or disallowed.' 'Whether Mr A was denied procedural fairness in the disciplinary process.' 'Whether it was more probable than not that the alleged conversation with police officers on 1 January 2015 occurred.' 'Whether the disciplinary penalty of demotion for 12 months was correct in all the circumstances or whether an alternative sanction should be substituted.']

Ratio Decidendi

Mr A understood the short, specific allegations against him and had sufficient time to respond, so his procedural fairness complaint failed. The Commission accepted the evidence of Mr H and found it more probable than not that the alleged conversation occurred at the Fire Station on 1 January 2015. The Commissioner was not in error in imposing a disciplinary sanction, but in light of the financial impact of demotion, Mr A's personal circumstances, his work away from the prior Fire Station and LAC, and the protective rather than punitive nature of the jurisdiction, demotion for 12 months was too harsh. The appropriate substituted penalty was a reprimand and a fine of $5200.

Court Disposition

Appeal allowed; demotion decision quashed; reprimand and fine imposed in lieu of demotion.

Orders

  • ['The appeal of Mr A in this matter is allowed.' 'The decision of the Commissioner, as the delegated decision maker for the respondent, that the appellant be demoted from Station Officer to Senior Firefighter with effect from 17 June 2016 is quashed and in lieu thereof, Mr A shall receive a reprimand and a fine of...